As discussed in a prior article, following an investigation into six Florida schools accused of engaging in a scheme to sell fraudulent nursing degrees, diplomas, and transcripts, the State of Florida, Department of Health has begun investigating nurses that it believes obtained these fraudulent degree.

Now, DOH is moving forward with the issuance of administrative complaints. If you have received an administrative complaint, know that you must strictly comply with the time periods included in the Election of Rights. If you want to contest DOH’s complaint, you must timely elect to have a formal administrative hearing and file a petition for the same.

What is most concerning is that the students of these colleges, which were accredited by DOH, had no idea that there was any fraudulent activity going on. They attended classes, took exams, and performed their clinical hours as required by the accredited schools. DOH reviewed all of this prior to issuing the nursing licenses and still issued the license.

DOH is attempting to come back and re-review the licenses due to errors committed, not by the nurses, but by DOH and the schools at issue. This is not proper.

In fact, DOH attempted to do something similar to this in the past and it was rejected by administrative law judges. In those cases, an accredited massage therapy school incorrectly informed certain students that they could transfer credits from another school and other incorrect statements about what was necessary to get their degree. These students were unaware that these statements were in error and followed the school’s requirements and had their degrees and transcripts issued, following which they applied for and were granted massage therapy licenses.

When DOH recognized its error, it brought claims under the same statutes that it is bringing claims against students affected by Operation Nightingale. The administrative law judges presiding over these cases rejected these claims by DOH. In particular, Administrative Law Judge Van Laningham stated:

The Department takes the position that Peng’s license can be revoked based on the Department’s unilateral mistake, even if Peng did not personally commit a culpable act. Thus, the Department contends that because its staff missed several so-called “red flags” that “should have caused them to ask additional questions regarding [Peng’s] application,” Peng herself committed a disciplinable offense. This argument is rejected.

To begin, the Department’s “unilateral error” theory is inconsistent with the general procedure for licensing as set forth in section 120.60, which provides in pertinent part as follows:

(1) Upon receipt of an application for a license, an agency shall examine the application and, within 30 days after such receipt, notify the applicant of any apparent errors or omissions and request any additional information the agency is permitted by law to require. An agency shall not deny a license for failure to correct an error or omission or to supply additional information unless the agency timely notified the applicant within this 30-day period.

Given that the law unambiguously prohibits an agency from “deny[ing] a license for failure to correct an error or omission or to supply additional information unless the agency timely notified the applicant” of the particular deficiency within 30 days after receiving the application, to allow the agency later to revoke a license pursuant to section 456.072(1)(h) based solely on a purported deficiency or “red flag” in the licensee’s application of which the agency failed to give timely notice under section 120.60 not only would erode the protection that the latter statute affords specific licensees, but also would undermine the integrity of licenses in general.

Further, section 456.072(1) clearly does require a culpable ““act” on the part of the licensee as a condition for imposing discipline. Id. (“The following acts shall constitute grounds for” discipline) (emphasis added). The disciplinable acts specified in section 456.072(1)(h) are the use of a bribe, fraudulent misrepresentation, or “error of the department” to obtain a license.

Because a unilateral agency error does not involve any wrongful act on the licensee’s part, such an event cannot constitute a basis for discipline. For a disciplinable act to occur, the applicant must somehow use or take advantage of an agency error to obtain her license.

The full order can be accessed here.

DOH is seeking to hold innocent students responsible for its own mistakes and failures. Hopefully, the judges will continue to rule as they did in the above cited case and reject DOH’s attempt to relitigate the original issuance of the licenses.
If you have been issued an investigation letter or administrative complaint by the DOH regarding Operation Nightingale, you should contact an experienced attorney at Smith & Associates to discuss your rights and options.