What to Do if Your License is Under Investigation
When individuals obtain their licenses to practice their healthcare profession, they typically don’t contemplate being the subject of an investigation for possible licensure violations. As such, they are often unprepared for how to respond when they receive a Notice of Investigation from the Florida Department of Health (“DOH”). The DOH is the primary agency responsible for investigating complaints, while state boards (“Board”) are responsible for licensing and disciplining health care practitioners.
Investigation Process
Investigations can be initiated from various sources including patient complaints, complaints from other practitioners, facilities, adverse incident reports, and closed medical malpractice claims. The Consumer Services Unit of the DOH receives the complaints and completes a Uniform Complaint Form (“UCF”). The UCF is sent to the Investigative Services Unit and the case assigned to an investigator. The investigator collects information, conducts interviews, reviews medical records, and compiles all of the evidence related to the investigation. The investigator will send a Notice of Investigation to the healthcare practitioner (“Practitioner”) and include a copy of the UCF and a copy of the statement from the party that filed the complaint.
Medical doctors and osteopathic physicians have 45 calendar days, while other healthcare practitioners (such as chiropractors, podiatrists, acupuncturists, nurse practitioners, and physician assistants) have only 20 days to respond. Practitioners have the option to have an interview with the investigator or provide a written response. It is important that the response be in writing and prepared by an attorney experienced in administrative proceedings. Otherwise, Practitioners may unintentionally incriminate themselves.
Legal Representation
Due to the limited time to respond, a Practitioner should act promptly and immediately notify their professional liability insurance carrier. Many professional liability policies provide coverage for licensure defense. The carrier may require the Practitioner to use an attorney on their panel or allow the Practitioner to use an attorney of their choice.
The investigation period usually takes about 90 days. The investigator will prepare an investigative report and send the investigative report and related documents, including any written response from the Practitioner’s attorney (collectively, the “Investigative File”) to the Prosecution Services Unit to be assigned to an attorney (“Prosecutor”) for legal review. This process does not move quickly. Once a response is submitted, it can take several months before the Practitioner hears anything regarding the case.
Probable Cause
The Prosecutor will review the Investigative File and make a recommendation to the probable cause panel (“Panel”) of the Practitioner’s respective Board as to whether to proceed with disciplinary action or dismiss the case. The Panel may, but is not required, to follow the Prosecutor’s recommendation. It is the Panel’s responsibility to determine whether there is probable cause – sufficient evidence to support initiation and prosecution of a disciplinary action against the Practitioner.
If the Panel determines there is not probable cause, the case is dismissed and remains confidential.
If the Panel determines there is probable cause, an administrative complaint (“Complaint”) is filed against the Practitioner.
Administrative Complaint
If a Complaint is filed, the Practitioner can: (i) enter into a settlement agreement with the DOH that will be presented to the Practitioner’s Board for approval; (ii) request an informal hearing; or (iii) request a formal hearing before an administrative law judge. Disciplinary action can include monetary penalties, remedial education, and practice restrictions. Depending on the severity of the violations, the Practitioner’s Board can impose probation, license suspension, or license revocation.
Collateral Effects
The Practitioner may also be required to notify employers, facilities, payors, and other state licensing boards of the disciplinary action. The imposition of disciplinary action can have adverse collateral effects on the Practitioner’s employment, hospital privileges, payor contracts, and other state licenses.
Due to the significant risk to a Practitioner’s ability to practice their profession and the potential collateral effects, it is imperative that a Practitioner obtain competent legal counsel to ensure that the Practitioner’s rights are protected through the process.
For any questions, please reach out to Elizabeth Shaw at liz@rezlegal.com.
Article by Elizabeth Shaw as appeared in “Medical Professionals Jacksonville and the Beaches Magazine” Published September 2021