In Florida You Have Fifth Amendment Rights in a Department of Health Investigation of Your License

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

If you are contacted by a Florida Department of Health investigator, did you know that you are not required to make a statement or give any information that can be used against you?  If you are being investigated you have a right to refuse to speak with an investigator pursuant to the Fifth Amendment of the U.S. Constitution and the equivalent rights given by the Florida Constitution, Article 1, Section 9.  However, because the Miranda decision does not apply to administrative proceedings, including licensure investigations, the DOH investigator does not have to inform you of this.

In some states other than Florida, the state’s law is such that a nurse, physician, dentist or other licensed health care professional is required to “cooperate” with the investigation, even though he or she may be punished or lose their license as a result.  THIS IS NOT THE CASE IN FLORIDA.

Florida Licensing Investigations Are Considered to Be “Penal” or “Quasi-criminal” in Nature.

Florida licensing investigations are considered to be “penal” or “quasi-criminal” in nature.  In Florida, a professional’s license is considered to be a property right.  So you also have the constitutional right not to be deprived of it without due process of law.  Due Process of law is guaranteed not only by the Florida and U.S. constitutional provisions cited above, but also by the Fourteenth Amendment of the U.S. Constitution.  Due process of law includes the right to be represented by an attorney in any proceedings that might be initiated that may result in your losing your license.

In Florida, a long history of legal cases has resulted in the common law rule that administrative proceedings that may result in loss of a license must afford all of the protections that a criminal defendant would have in a criminal case.

Case Law in Florida.

In a 2004 case involving the Florida Department of Health, the Florida First District Court of Appeal stated:

Initially, it should not be forgotten that because professional disciplinary statutes are penal in nature, they must be strictly construed with any ambiguity interpreted in favor of the licensee. See Ocampo v. Dep’t of Health, 806 So. 2d 633, 634 (Fla. 1st DCA 2002);  Elmariah v. Dep’t of Prof. Reg., Board of Med., 574 So. 2d 164 (Fla. 1st DCA 1990).

Cone v. Dep’t of Health, 886 So. 2d 1007, 1011 (Fla. 1st DCA 2004).

The Florida Supreme Court confirmed that a licensee could assert a Fifth Amendment right in administrative proceedings in the 1973 case of State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (1973).

In Vining a real estate broker was charged by the Florida Real Estate Commission of violating the Real Estate License Law.  Id. at 488.  The broker filed a sworn answer, as he was required to do under Florida Statute Section 475.30(1).  Id.  The broker later argued that the Florida statute violated his right against self-incrimination as guaranteed by the Fifth Amendment to the U.S. Constitution and Article I, Section 9 of the Florida Constitution.  Id.

The Florida Supreme Court agreed, holding that “the right to remain silent applies not only to the traditional criminal case, but also to proceedings ‘penal’ in nature in that they tend to degrade the individual’s professional standing, professional reputation or livelihood.”  Id. at 491 (citing Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967);  Stockham v. Stockham, 168 So. 2d 320 (Fla. 1964)).  More recently, courts have reaffirmed that Vining remains good law in Florida.  See Best Pool & Spa Service Co., Inc. v. Romanik, 622 So. 2d 65, 66 (Fla. 4th DCA 1993);  Scott v. Department of Professional Regulation, 603 So. 2d 519, 520 (Fla. 1st DCA 1992).

In Best Pool & Spa Service Co., Inc. v. Romanik, 622 So. 2d 65, 66 (Fla. 4th DCA 1993), for example, the Court of Appeal reiterated the ability of a defendant to claim the Fifth Amendment privilege in an administrative proceeding.  Best Pool involved a pool owner filing actions for negligence and breach of contract against a pool maintenance contractor and its president.  The circuit court required the president to answer questions at his deposition about his certifying to the county, in an application for license, that the contractor had liability insurance.  The Court of Appeal ruled that the president was allowed to assert his Fifth Amendment privilege with regard to questions on this issue.  The court stated in Best Pool: “requiring Kassover, the president, to answer these questions does violate his right against self incrimination, which applies not only to criminal matters but also administrative proceedings such as licensing.  Id. at 66.

There are many other cases which have held the same.

You Must Be Extremely Cautious When Dealing with a DOH Investigator or Any Investigator.

If you receive notice that a DOH disciplinary investigation has been opened against you, you may not even realize it or understand how serious the consequences may be.  The notice comes in the form of a simple letter or, more often nowadays, a phone call, followed by a letter.  The letter will be on Florida Department of Health letterhead and will, in most cases,  be signed by a person whose job title is “Medical Malpractice Investigator,” “Quality Assurance Investigator” or some other title that might throw you off.

If you think you are giving information to be used in connection with a true quality assurance matter, such as would be confidential and privileged in a hospital or health institution, think again.  This is an investigation that could result in your having to pay thousands of dollars in fines, thousands of dollars in investigative costs and suspension or loss of your license.  Worse yet are the other consequences that having discipline on your professional license will bring, including difficulty in obtaining employment, reports being made to national data banks, etc.  Please see some of the other articles we have on our blog and on our website about all of the unforeseen consequences of discipline on your license.

Have You Been Told the Investigation Is Not Aimed at You?  Watch Out!

Even if the investigator attempts to ensure you that the investigation is not aimed at you, watch out!  It may not be aimed at you today, but it may be aimed at you tomorrow.  Additionally, even if the particular investigation that you are being questioned about is not directed against you, there may be another investigation that has been opened against you.  Your statement can and will be sued against you in that other investigation.

I was told by a DOH investigator one time that my clients (who were a director of nursing (DON), assistant director of nursing (ADON), an administrator and a medical director) were not being investigated, but that another health professional was.  My clients cooperated and gave statements for use in the investigation of the other person.  A short time later, additional investigations were opened against all of them, too.  Fortunately we eventually had all of the charges against all of them dismissed.  But I have not trusted investigators since then.

Don’t Wait Until it is Too Late; Consult with a Health Law Attorney Experienced in Representing Health Professionals Now.

The lawyers of The Health Law Firm routinely represent nurses, ARNPs, CRNAs, physicians, dentists, pharmacists, psychologists, mental health counselors, social workers, massage therapists, medical groups, clinics, pharmacists, pharmacies, home health agencies, nursing homes, assisted living facilities, and other healthcare providers in licensing investigations, regulatory matters, in board actions and in administrative hearings.  Call now at (407) 331-6620 or (850) 439-1001 or visit our website www.TheHealthLawFirm.com.

About the Author:  George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

Disclaimer: Please note that this article represents our opinions based on our many years of practice and experience in this area of health law. You may have a different opinion; you are welcome to it. This one is mine.  This article is for informational purposes only; it is not legal advice.

In Treatment: Physicians and the Professionals Resource Network (PRN)

In an industry so concerned with serving others, physicians and other health professionals sometimes find that they are the ones being pushed towards a treatment program. According to a recent study, alcohol abuse is the most common reason for enrolling in a physician health program. Other reasons for treatment included opioid, stimulant and sedative abuse. However, not all physicians and health professionals that are referred to a health program are in need of rehabilitation services.

The Florida Department of Health’s Impaired Practitioners Program is administered by the Professionals Resource Network (PRN) and the Intervention Project for Nurses (IPN). IPN is responsible for all nurses and works with and through the Florida Board of Nursing. The Florida Board of Medicine and all other professional licensing boards in the DOH have contracted with and use the services provided by Professionals Resource Network (PRN).

We routinely work with physicians who are accused by employers, hospitals, competitors, terminated employees, or supervisors in graduate medical education (GME) programs of impairment due to drug or alcohol abuse, of mental impairment, of being a “disruptive physician” or of sexual boundary issues.

Our firm has extensive experience in representing physicians and other professionals accused of drug abuse, alcohol impairment, mental impairment and sexual boundary issue, as well as in dealing with the Professionals Resource Network (PRN), its advantages and disadvantages, its contracts, its personnel, and its policies and procedures.

We are also quite familiar with the interactions between PRN and the Board of Medicine. We have had a great deal of experience in working with the different psychiatrists, certified addictions professionals (CAPs) and evaluators which PRN routinely employs to perform its initial evaluations on physicians.

Our clients routinely include physicians and other health professionals who are alleged to be impaired because of drug abuse, alcohol abuse or mental or physical impairments. We routinely are consulted by physicians who have a DUI conviction, who have a positive result on a drug or alcohol test or who are accused of addiction or theft of drugs because of discrepancies in drug inventories, or for any other number of reasons.

We routinely consult with, advise and defend physicians facing all of the foregoing types of problems. It is crucial that the physician obtain qualified legal representation and advice immediately before speaking to hospital administrators or medical staff leaders about the matter, before giving a urinalysis sample, before reporting to PRN and before going for an evaluation by a psychiatrist or a certified addictions professional (CAP).

Furthermore, these types of allegations made against a physician are extremely serious because they are usually treated by the Department of Health as “Priority 1″ or “Fast Track” offenses. This means that the charges against the physician will usually be automatically considered for an Emergency Suspension Order (ESO) by the Department of Health. The investigation will be “fast and dirty” with a requirement that the DOH investigator have the entire investigation completed and the report in Tallahassee within 45 days. Then, unless a qualified, experienced attorney is able to immediately produce reliable documentation and other evidence showing the physician is not impaired and is not a threat to patient health or safety, the Surgeon General (formerly the Secretary of the Department of Health) will issue an Emergency Suspension Order (ESO). This suspends the physician’s license until all proceedings are completed and finalized (which often takes a year or more). The physician will be unable to work as a physician during any period when his or her license is suspended and, even if he or she has a license in another jurisdiction, since the suspension is a public record that is widely published and other jurisdictions are notified, he or she may find the license in the other states is also suspended.

However, even where the physician may actually have committed the offense, there are a number of administrative and procedural measures which an experienced health care attorney, one familiar with Board of Medicine and PRN cases, may be able to use to avoid a suspension. This will also prevent the matter from becoming public until much later in the process.

For the innocent physician or health professional, an experienced attorney familiar with such matters may be able to obtain additional drug testing, polygraph (lie detector) testing, scientific evidence, expert witnesses, evaluations by certified addictions professionals, character references, or other evidence which shows innocence.

PRN does have some advantages for the truly impaired physician. It provides an avenue of rehabilitation, monitoring and treatment for a truly impaired physician. It is an invaluable tool to assist a physician with a real problem to retain his ability to practice. Some physicians should not be practicing except through PRN. However, PRN also has some serious disadvantages and may, among other things, cause the physician to lose clinical privileges in a hospital; lose an employment position; require the physician to enter into long term inpatient rehabilitation; cause the physician to undertake extremely expensive treatment counseling and therapy; and impose very onerous burdens of time and money on the physician, as well as job limitations. Additionally, PRN routinely relies on Alcoholics Anonymous (AA) and its particular philosophy of coping with substance abuse, even though there may be competing schools of thought on the subject, some of which are equally or more effective.

In many cases, the physician who is the victim of a termination action by an employer, a complaint by a hospital or a complaint against his or her professional license involving allegations of drug abuse, alcohol abuse, or impairment, may view PRN as an easy way to avoid discipline. This is a complete fallacy. Such an apparent easy way out should be avoided at all costs.

If the physician is not truly an impaired provider or addicted to drugs or alcohol, there may be other alternatives that do not involve discipline. PRN is not “easy” and this is not an easy way out.

It is extremely important that before you “self-report” to PRN you contact an experienced health care attorney for advice.
If the physician is not truly an impaired provider or addicted to drugs or alcohol, there may be other alternatives that do not involve discipline.

It is extremely important that before you agree to go to the initial evaluation by a physician (or sometimes a psychologist or mental health counselor) specializing in addictionology (as PRN always requires), obtain legal advice.

Before you give any blood, urine, hair samples or other drug or alcohol testing, you should contact us for advice. We have access to the same or similar testing labs as PRN. We can arrange to have you tested first so that you will know whether or not you should have any concerns. For example, did you know that the use of certain prohibited drugs (including cocaine) will leave a residue in your hair which can be detected for months or longer after use? Are you aware that there are now tests being used which can tell if you have had one regular size alcoholic beverage within the past thirty (30) days? There are even tests being used now to test health care professionals for the illicit use of anesthetic gases such as Aldan.

We are consulted by just as many physicians who want to get out of the PRN Program after they agreed to enter it without proper legal advice. Even though at the time it seemed like a good idea, or the physician incorrectly thought there was no choice in the matter, it turns out to be a big mistake for that person. In most cases, it is not possible to leave the PRN Program after agreeing to it without giving up your medical license. And this can have some extremely adverse consequences for a physician, including a report to the National Practitioner Data Bank (NPDB), exclusion from the Medicare and Medicaid Programs and debarment from all federal government contracting.

We are told that 60 day, 90 day, and longer periods of inpatient drug or alcohol treatment may be required before the physician can return to work. Physicians accepted into PRN usually must sign a five year contract agreeing to monitoring, weekly counseling meetings, regular psychiatric visits, random urinalysis testing (with a mandatory call in every day of your life for the five year contract period), mandatory notification of all employers and hospitals where you have clinical privileges that you are in PRN, a strict prohibition on drinking any alcoholic beverage or taking any medication (even over the counter medications) without the prior approval of PRN, possible loss of your privilege to prescribe or administer narcotics, a possible requirement that you only work under the supervision of another physician, or other possible requirements.

The bottom line is: If you are accused of drug impairment, alcohol impairment, sexual boundary issues, sexual misconduct, or of being mentally or physically impaired, immediately contact an attorney experienced with PRN and Board of Medicine matters before doing anything else. Don’t risk losing your livelihood by taking the apparent only way out. There may be other options available for you. For more information about PRN and other legal matters concerning health professionals, visit www.TheHealthLawFirm.com.

Why You May Be Waiting For Your Florida Medical License

Applying for a Florida medical license? Read this now, so you don’t have to wait later.

What are the most common problems that hinder an application for a medical license or other health professional license in Florida?

Still waiting for your Florida medical license or other health professional license? Here are some reasons why it may be taking so long.

According to the Florida Board of Medicine‘s website on May 17, 2011:

NOT BEING COMPLETELY CANDID ABOUT YOUR HISTORY AND EDUCATION is the #1 reason for denial of an application for a full unrestricted license. Failure to disclose a problem will get you in trouble with the Board far more often than the problem itself.  Here are some other causes for delay in your application:

• Actions during postgraduate training
• Hospital staff privileges with action/termination of employment
• Action by a specialty board
• Action by another state regulatory board
• Misdemeanor or felony convictions
• Results of the criminal background check
• Civil judgments/malpractice
• Medical, physical, mental or chemical dependence impairment/condition within the last five years
• Lack of active practice
• Action by DEA
• Action by the military
• Applications that require Petition of Waiver/Variance

Do most complete applications get approved?

Yes, most applicants are granted an unrestricted Florida medical license. Those applicants who are not issued an unrestricted license may have the following occur:

• Approval with conditions such as a fine, corrected application and new application fee.
• Approval with condition such as taking or retaking an examination.

The Board may also outright deny the license, or may allow the applicant to withdraw the application.

TOP TEN WAYS TO GET YOUR APPLICATION PROCESSED QUICKLY

1. Mail the application to the correct address.
2. Keep in mind that any monies have to be processed by the Department vendor.  This may take a couple of days.
3. Identify any variation of names and nicknames.
4. Once you start the process, submit the application within 30 days so that your supplemental documents, including transcripts, will have an application file to go to.
5. Have the correct address on the application for training programs and hospitals.
6. Send in necessary back up documents in a timely manner.
7. Follow up with sources that are sending the Board of Medicine your documents.
8. Watch for letters or e-mail from your reviewer.  This is how we tell you what else is needed for your application to be complete.
9. If asked for follow-up information from the Board, please read the request carefully to identify exactly what is needed to make your application complete.
10. Answer questions honestly and provide an explanation where appropriate.

For more information about medical licenses and other legal matters, visit www.TheHealthLawFirm.com.