The attorneys at Nicholson & Eastin, LLP regularly assist physicians, pharmacists, non-physician practitioners and healthcare facilities with the defense of their professional licenses against administrative actions by state and federal authorities.
One of the most disconcerting events that can happen to a licensed health care professional is the receipt of a notice of investigation from the Florida Department of Health. Often the notices contain limited information regarding the basis for the complaint or investigation, and the provider is given a limited period of time to respond – between 20 and 45 days depending on the practitioner type. The notices frequently also ask the provider to submit to an interview with a Medical Quality Assurance Investigator.
A common mistake practitioners make is to either ignore the letter, or to not view it as a serious matter, and they fail to provide an inadequate response or any response at all. Either of these approaches can lead to the filing of an administrative complaint against a practitioner when one could have been avoided with a proper response. Regardless of the basis of the complaint, a thoughtful response is required in order to maximize the possibility of the investigation being resolve without the matter being submitted to a probable cause panel for the filing of an administrative complaint against the practitioner, or to maximize the prospect of the panel making a finding of no probable cause.
Complaint investigations remain confidential and exempt from public disclosure until after an administrative complaint is filed against a practitioner. Once an administrative complaint is filed, however, it remains on the practitioner’s public record.
A proper response to a notice of investigation will involve a thorough investigation of the underlying facts of the complaint. There are certain types of patient complaints that the Department of Health will not generally pursue, such as fee disputes and complaints of poor bedside manner. A legal analysis to determine whether the subject of the complaint is a violation of the practitioner’s practice act also needs to be conducted. In all cases, a request for the complete investigative file before the matter is submitted to a probable cause panel needs to be made. At a minimum, this allows the practitioner to view all the information the probable cause panel will consider in evaluating the matter and gives the practitioner a final opportunity to submit information to rebut the allegations. Although neither the practitioner nor their counsel is entitled to address the probable cause members personally, the Department of Health is required to present to the panel the information the practitioner provides to rebut the complaint.
If an administrative complaint is approved by a probable cause panel, the practitioner will be served with a copy of the administrative complaint. Often, but not always, the Department of Health will provide the practitioner with a proposed settlement agreement along with the administrative complaint. This settlement offer may, or may not, be the best offer the Department is willing to make. Moreover, the Board has the authority to reject any settlement agreement and can impose a greater or lesser sanction than recommended by the Department.
The practitioner will be asked to decide how he or she wants to proceed – admit the allegations and accept the settlement offer, submit the matter to the Board for an informal hearing, or dispute the allegations and request a hearing before an administrative law judge. Practitioners should seek the advice of counsel at this point if they have not previously done so.
If the allegations or legal basis are challenged, the matter will be assigned to an administrative law judge who will decide the issues. If the informal hearing option is selected, the practitioner will appear before the board to plead his or her case, but has limited appeal rights. If the practitioner accepts the settlement agreement, then they will be scheduled to appear before the Board for an imposition of sanctions.
The range of sanctions available for a particular violation is set by regulation. These include fines, letters of concern or reprimand, probation, community service, CME courses, monitoring requirements and revocation of license. The Department has discretion in what sanctions to recommend, and the Board has discretion in what sanctions to impose. A proper presentation of the practitioner’s actual conduct, history, character and other mitigating factors is crucial to ensuring the best outcome possible.
The lawyers at Nicholson & Eastin are available to assist practitioners at every stage of the administrative process, and we always work toward dismissal at the probable cause panel level or before without any disciplinary action when possible. If an administrative complaint and sanctions cannot be avoided in a particular case, we aggressively negotiate with the Department of Health and the Board in an effort to secure the most reasonable sanction possible. For our clients who are licensed in multiple jurisdictions, we assist them with making the proper notifications to those other licensing authorities and also assist them with any collateral consequences they might have with DEA, Medicare, Medicaid or health insurance carriers.
If you have received a notice of investigation or an administrative complaint, please do not hesitate to contact us to assist you. We are available for evening and weekend consultations.