Category Archives: Department of Health

FLORIDA BOARD OF NURSING RULE DEVELOPMENT WORKSHOP

The Department of Health, Board of Nursing has given notice of an upcoming Rule Development Workshop.  On July 1, 2023, a new law went into effect that amended Florida Statutes 400.211, 400.23, 464.0156, and 464.2035.  Chapter 400 of the Florida Statutes regulates nursing homes and Chapter 464 regulates the practice of nursing.

The legislature created a new designation of “qualified medication aide” (QMA) for certified nursing assistants (CNA) who work in a nursing home and meet specified additional licensure and training requirements. With this new law, a nursing home is authorized to allow a registered nurse (RN) working in the nursing home to delegate medication administration and associated tasks to a QMA who is working under the direct supervision of the RN.  Prior to the new law, CNAs were authorized to administer oral, transdermal, ophthalmic, otic, rectal, inhaled, enteral, or topical prescription medication to a patient of a home health agency or to a patient in a county detention facility.  This new law has now authorized administration of the above medications and associated tasks by a QMA, except for rectal and enteral, to a resident in a nursing home facility.

In order to be designated as a QMA, a CNA must hold a clear and active certification as a CNA for at least one year preceding the delegation; complete 40 hours of training that consists of the six-hour training course currently required for a CNA to administer medication in a home health setting and a 34-hour course developed by the Board of Nursing (BON) specific to QMAs; and successfully complete a supervised clinical practice in medication administration conducted in the nursing home.
The Board proposes that the following Florida Administrative Code Rules will require amendment to implement the statutory changes:

Chapter 14: Delegation to Unlicensed Assistive Personnel
Rule 64B9-14.0015 Delegated Tasks

Chapter 15: Certified Nursing Assistants
Rule 64B9-15.001 Definitions
Rule 64B9-15.002 Certified Nursing Assistant Authorized Duties
Rule 64B9-15.0025 CNA Medication Administration
Rule 64B9-15.0026 Medication Administration Outside the Scope of Practice of a CNA

Chapter 16: LPN Supervision in Nursing Home Facilities
Rule 64B9-16.001 Definitions
Rule 64B9-16.002 Supervision by Licensed Practical Nurses in Nursing Home Facilities
Rule 64B9-16.004 Delegation of Tasks Prohibited

The Florida Health Care Association has submitted a proposed training curriculum for certification to become a QMA as well as suggestions for the revisions to the above Rules to implement the statutory changes.  The submission can be found in the public book available on the Board of Nursing’s website along with the proposed agenda at the below link.
https://floridasnursing.gov/meeting-information/

The preliminary text of the proposed rule is not available.
The workshop is scheduled for Thursday, October 26, 2023, 9:00 a.m., E.D.T., or as soon thereafter as can be heard.
Toll Free Number 1(888)585-9008, Conference Room ID: 275-112-502#

Operation Nightingale – DOH is Issuing Administrative Complaints

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.

Operation Nightingale – Know Your Rights

The U.S. Department of Justice is pursuing criminal charges against six Florida schools accused of engaging in a scheme to sell fraudulent nursing degrees, diplomas, and transcripts following an investigation by the FBI. These six schools and the relevant time frames for when they are accused of selling the fraudulent degrees are as follows:

  • Siena College/Siena College of Health, Lauderhill (10/2003 to 9/2022)
  • Sacred Heart International Institute, Fort Lauderdale (8/2017 to 9/2021)
  • Quisqueya School of Nursing LLC (“Sunshine Academy”), Boynton Beach (10/2016 to 12/2020)
  • Med-Life Institute WPB,LLC, West Palm Beach (10/2016 to 12/2020)
  • Quisqueya Health Care Academy, LLC, Lake Worth (10/2016 to 12/2020)
  • Palm Beach School of Nursing, LLC, West Palm Beach (10/2016 to 12/2020)

It is alleged that this scheme by these schools resulted in the issuance of 7,600 fraudulent nursing degrees.

In response, the State of Florida, Department of Health has begun issuing investigation letters to nurses that it believes obtained these fraudulent degrees. These letters do not provide any of the alleged information that DOH is relying on to claim that the degree is fraudulent. Further, these letters provide the recipient with an opportunity to respond to the investigation, and also provides the recipient with a form to voluntarily relinquish their nursing license.

If you are a nurse and you received one of these letters, you should contact an attorney to discuss your rights. For example, New York, which is also dealing with this issue, admits that not all of the nursing degrees issued by these schools during this time frame were fraudulent and is giving nurses the opportunity to prove their degrees were “real.” In Florida, however, the burden is on DOH to prove, by clear and convincing evidence, that the nurse violated a specific statute or rule and that, due to that violation, the nursing license should be revoked. Some of the specific statutes cited by the DOH investigation letter are:

  • Attempting to obtain, obtaining, or renewing a license to practice a profession by bribery, by fraudulent misrepresentation, or through an error of the department or the board. Fla. Stat. s. 456.072(1)(h);
  • Making deceptive, untrue, or fraudulent representations in or related to the practice of a profession or employing a trick or scheme in or related to the practice of a profession. Fla. Stat. s. 456.072(1)(m);
  • Failing to comply with the requirements for profiling and credentialing, including, but not limited to, failing to provide initial information, failing to timely provide updated information, or making misleading, untrue, deceptive, or fraudulent representations on a profile, credentialing, or initial or renewal licensure application. Fla. Stat. s. 456.072(1)(w); and
  • Procuring, attempting to procure, or renewing a license to practice nursing or the authority to practice practical or professional nursing pursuant to s. 464.0095 by bribery, by knowing misrepresentations, or through an error of the department or the board. Fla. Stat. s. 464.018(1)(a).

Before DOH can revoke any nursing license pursuant to these statutes, it has the burden to show that each element of the above cited statutes has been met. While it is currently unknown to the public what specific information DOH has from the FBI about any individual nurse or degree, absent clear and convincing evidence that a specific nurse’s degree was obtained fraudulently, it will be difficult to meet this burden.

Importantly, it appears that there are students that attended these accredited nursing schools that actually completed the required course work and clinical hours. While it is DOH’s burden to prove otherwise, with the appropriate documentation, affected nurses may be able to reach a quick resolution with DOH and avoid any adverse actions against their licenses.

If you have received an investigation letter from DOH regarding these nursing schools and allegations of fraudulent degrees, you should contact an attorney to help you understand your rights. At Smith & Associates we have decades of experience dealing with health care licensing issues and are here to assist you should you become the subject of a DOH investigation. Please contact us for a free initial consultation.

A Call for Rational Reform of IPN and PRN Laws and Regulations

As the COVID-19 pandemic has reminded everyone, healthcare workers perform critical jobs under significant amounts of stress every day. While everyone else was sheltering in place, healthcare workers went to the frontlines and put their lives at risk to save others.

Unfortunately, many of these healthcare workers have been taken advantage of by the very programs that were set up to protect and help them. When a healthcare worker has issues with drugs or alcohol, they can seek treatment through an impaired practitioner program. These programs serve dual, laudable goals: 1) to protect the public from impaired healthcare workers, and 2) to provide treatment to these practitioners to ensure that they can practice their craft safety.

Despite these laudable goals, and as discussed in more detail here, these programs have become a trap for health care professionals. While these programs were established by Florida law, they are administered by private corporations with little guidance or oversight. This has led to serious concerns that these programs are over-recommending courses of treatment to make more money, knowing that the professionals subject to their programs must comply or lose their professional license and their career. This ABC investigative report discusses the claims of over-recommendations here.

The time for reform is now. As discussed in detail in this article, if you are healthcare professional who is being unfairly treated by an impaired practitioner program (e.g., IPN or PRN), it is time to band to together to challenge the legality of the current impaired practitioner programs and to lobby for legislative change to address the unaccountable nature of these programs.

Overview of the Impaired Practitioner Programs

The impaired practitioner programs were created by Florida Statute § 456.076 with the stated purpose of protecting “the health, safety, and welfare of the public.” § 456.076(3), Fla. Stat. While no reasonable person would disagree with that goal, the statute itself does very little in the way of ensuring that this goal is being met.

The majority of the statute is devoted to setting forth the structure and organization of these programs. Specifically, the statute creates “consultants” which means the “individual or entity who operates an approved impaired practitioner program pursuant to a contract with the [Department of Health].” § 456.076(1), Fla. Stat.

The Department of Health has entered into two consultant contracts 1) The Impaired Practitioners Network (“IPN”), which exclusively handles issues with nursing practitioners and 2) The Professional Resources Network (“PRN”) which handles all other professionals subject to the impaired practitioner programs statute. See 64B31-10.001, F.A.C.

The statute also creates evaluators. An evaluator is a “state-licensed or nationally certified individual who has been approved by a consultant or the department, who has completed an evaluator training program established by the consultant, and who is therefore authorized to evaluate practitioners as part of an impaired practitioner program.” § 456.076(1), Fla. Stat. Importantly, the statute provides that the consultants themselves (IPN and PRN) cannot evaluate practitioners – only independent evaluators can do that.

The statute further provides for the process for how a practitioner is admitted to an impaired practitioner program. Specifically, the statute provides that PRN or IPN “shall enter into a participant contract with an impaired practitioner and shall establish the terms of monitoring and shall include the terms in a participant contract. In establishing the terms of monitoring, the consultant may consider the recommendations of one or more approved evaluators, treatment programs, or treatment providers. A consultant may modify the terms of monitoring if the consultant concludes, through the course of monitoring, that extended, additional, or amended terms of monitoring are required for the protection of the health, safety, and welfare of the public.” Fla. Stat. § 456.076(5).

There is no additional guidance, either through statute or rule, as to what can be contained in a monitoring contract, what monitoring needs to include, what standards the consultants or the evaluators need to apply when monitoring a practitioner, or any maximum length of time for the monitoring contract. IPN and PRN are left to their own discretion to set the terms of the contract. Moreover, there are no standards set for the evaluators. Evaluators are free to recommend whatever course of treatment they see fit and have no guidance as to when certain treatments should be recommended. For example, there is no statutory guidance to set forth the conditions as to when inpatient treatment is needed versus when a less invasive form of treatment could be given.

What this means from a practical perspective is that when a practitioner is referred to IPN or PRN, either by their employer or by the Department of Health, that person is stuck with whatever contract IPN or PRN sees fit based upon the recommendations of an evaluator who is free to make any recommendation he or she sees fit. There is little-to-no statutory or regulatory oversight as to how these consultants or evaluators deal with the practitioners that have been referred to them.

Once a practitioner has signed a contract with IPN or PRN, these consultants now have significant control over the practitioner and his or her license. Specifically, Florida Statutes provide that the following is grounds for discipline, including revocation or suspension of the practitioner’s license:

Being terminated from an impaired practitioner program that is overseen by a consultant as described in s. 456.076, for failure to comply, without good cause, with the terms of the monitoring or participant contract entered into by the licensee, or for not successfully completing any drug treatment or alcohol treatment program.

§ 456.072(1)(hh), Fla. Stat. (emphasis added).

It is notable that “good cause” is not defined in the statute or any applicable rule. That is discussed in more detail below.

Thus, once a practitioner is in an impaired practitioner program, he must comply with all the terms imposed by that program, otherwise, he will be terminated and subject to licensure discipline.

The Good Cause Exception

One might believe that the “good cause” exception to being terminated would provide a check on IPN and PRN – keeping them from making recommendations that are, for example, not medically necessary or that are too cost prohibitive or onerous for the practitioner to complete. In reality though, the Department of Health has limited the definition of “good cause” so narrowly that it has been rendered meaningless.

While the Department of Health has not undergone any rulemaking to officially define “good cause” when a practitioner is facing discipline for being terminated from IPN or PRN, it has stated that “good cause” is limited to “serious and unavoidable events in the life of a practitioner; such as the return to active military duty, the acute appearance of a disabling medical condition, or death of the practitioner.” DOH v. Adebiyi, DOAH Case No. 18-4813PL, DOH’s Proposed Recommended Order (DOAH 2018). The issues with this definition should be readily apparent and none of those examples would include an example that would allow the practitioner to continue practicing.

Administrative law judges (“ALJs”) have agreed with DOH’s definition. For example, DOH v. Adebiyi, DOAH Case Number 18-4813PL, Recommended Order (DOAH 2018) involved a practitioner who suffered from mental health issues but had no diagnosed issues with drugs or alcohol. As a condition of her licensure, she was required to enroll in IPN. Despite not having any issues with drugs or alcohol, she was required to refrain from mood altering substances and submit to toxicology screening. Due to the costs of the toxicology Respondent missed numerous tests. The ALJ found the following:

  • “[T]he cost of the monitoring program created a financial hardship on [respondent]”;
  • “It has never been shown that [respondent] uses drugs”; and
  • “There was no showing in the record that Ms. Adebiyi has ever caused actual damage, physical or otherwise, to a patient under her care, or that her violations of IPN procedures caused such damage.”

Even with all of this, the ALJ found that good cause did not exist for respondent to terminate her IPN contract and recommended that her license be suspended until she complied with IPN requirements.

Thus, despite no allegations of alcohol or drug use and no allegation that the practitioner was unable to practice safely, the fact that she could not afford drug testing did not constitute good cause for her to terminate her IPN contract.
This unabated definition of “good cause” creates a real issue for practitioners who are facing unnecessary, costly recommendations from IPN or PRN. They must either comply or face having their license suspended or revoked until they comply.

Potential Legal Challenges and Opportunities for Change

One option is to challenge DOH’s definition of “good cause” as an improper, unadopted rule. In fact, Smith & Associates has recently filed an unadopted rule challenge to this definition, arguing that DOH’s definition of “good cause” serves as a rule, as defined by Florida Statutes, but that has never been formally adopted as a rule. Moreover, this challenge argues that this definition constitutes an invalid exercise of delegated legal authority – essentially that DOH is exceeding the authority given to it by the Legislature by adopting this limited, unsupported definition of “good cause.” The case has been assigned case number 21-0866 and its progress can be monitored here: https://www.doah.state.fl.us/ALJ/searchDOAH/.

Additionally, there is an argument that impaired practitioner programs themselves violate the Florida Constitution. Article II, Section 3 of the Florida Constitution provides:

The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.

Interpreting this, the Court has held that, while power can be delegated to other branches, the Legislature must define clear guidelines and limitations in the statute. Specifically, the Court has held, that “statutes granting power to the executive branch must clearly announce adequate standards to guide … in the execution of the powers delegated. The statute must so clearly define the power delegated that the [executive] is precluded from acting through whim, showing favoritism, or exercising unbridled discretion.” Florida Dept. of State, Div. of Elections v. Martin, 916 So. 2d 763, 770 (Fla. 2005).

Here, the Legislature establishes the Impaired Practitioner Programs in Florida Statute § 456.076. That statute provides no limits or guidance as to what can be contained in the participant contract, the limits on the treatments these programs can require, or any way for a participant to appeal or seek a second opinion. Further, as described above, Florida Statute § 456.072(1)(hh) allows DOH to revoke a participant’s license if they are terminated from a program, but provides no direction or guidance as to what grounds constitute good cause for a program to terminate a participant. In short, the Legislature has improperly delegated its authority to a third-party.

In addition to legal action, there is also the opportunity to lobby for a change in the statute and in the rules related to these programs and their administration. While no one wants to allow impaired health care professionals to be able to practice on patients, guidance needs to be given to these programs to protect the healthcare professionals that protect us. Putting protections in place to prevent these programs from taking advantage of healthcare workers should be a bipartisan goal.

The Need to Organize and Band Together

Legal challenges, lawsuits, lobbying, etc. are all expensive propositions. If each professional stuck in the IPN/PRN trap attempts to fight this alone, they are unlikely to have the resources or the sway to mount an effective challenge against these large, government backed institutions.

However, if they were to band together to form an association to fight for their interests, the collective costs to each practitioner would be minimal, but the collective effect would be significant. These programs affect thousands of practitioners every year. If even a small percentage of them banded together to form an association, it could launch significant legal challenges to these programs as well as lobby for common-sense legislative and regulatory reform.
If you are a practitioner affected by IPN or PRN and need help determining your options or if you are interested in forming an association to challenge these programs, please contact an attorney at Smith & Associates to discuss your rights.

Administrative Law Judge Rejects Claim of Sexual Misconduct by Physician

In a recent article, I discussed the ruling by an Administrative Law Judge (ALJ) in the case of Department of Health v. VanBuskirk, which rejected revocation of a physician’s license based on alleged sexual misconduct. See “Physician Discipline Rejected by Judge.” In another Recommended Order entered on March 1, 2020, an ALJ rejected the Department of Health’s claims seeking disciplinary action against a physician based upon allegations of sexual misconduct. See Department of Health v. Khan, DOAH Case No. 20-4079 PL. Unlike the prior case, this most recent decision did not involve a factual dispute over whether a sexual encounter occurred. The physician conceded that a sexual encounter did indeed occur. However, the ALJ found that there was no “physician-patient relationship” because the physician had previously severed the patient relationship months prior to the date of the encounter. The physician previously was the patients’ primary care physician for 13-14 years. However, the patient ended her patient relationship five months prior to the sexual encounter, when she became unhappy with the care and treatment she had received, and her feeling that the physician had committed a major medical error when he ordered the wrong procedure for her. The former patient retained a new primary care provider. She had contacted the physician again by Facebook and asked to see him as a friend. On the day of the encounter, she did not sign in as a patient, was not seen as a patient by staff in a patient room and met with the physician in his private office area. There was no doubt an aggressive and unwelcome sexual advance was made by the physician, but the judge ruled that because there was not an existing physician-patient relationship the actions could not be the basis for a license disciplinary proceeding.

It remains to be seen whether the Department of Health will accept the ALJ’s Recommended Order or will reject the ALJ’s reasoning as to the existence and termination of the physician-patient relationship. (The Agency could reject the conclusion of law interpreting disciplinary rules as being as reasonable or more reasonable than the ALJ conclusion. See 120.57(1(l), Fla. Stat.) Moreover, the physician could still potentially be subject to criminal prosecution, with a conviction supplying a new independent basis for license disciplinary action.

Physician Discipline Rejected by Judge

Perhaps the most difficult professional license proceedings are those that involve allegations of sexual misconduct by a health care practitioner. In these days of the #MeToo movement, most people, and perhaps most judges, are inclined to credit an alleged victim’s allegations of predatory behavior by a person in a position of trust and power. Faced with such an allegation in a formal Administrative Complaint by a state licensing Board, many practitioners feel overwhelmed and, in some instances, simply surrender a license to practice rather than face the potential humiliation, anguish, and uncertainty of a formal proceeding where they will be deposed, cross examined, and possibly found guilty of horrible professional misconduct. (Victims may also have these same reservations about reporting or proceeding with a complaint against a licensed professional.) A recent decision by a Florida Administrative Law Judge does give hope to the wrongly accused licensed professional that they can prevail in a fair review of the evidence.

In a Recommended Order published February 24, 2021 in the case of Department of Health, Board of Osteopathic Medicine vs. Richard Van Buskirk, D.O., Administrative Law Judge (ALJ) Elizabeth MacArthur cleared the accused physician of all charges after a meticulous review of the testimony and evidence. The ALJ noted the legal standard for a license revocation, suspension, or penalty case is clear and convincing evidence of the alleged misconduct. The ALJ cited to well established case law noting:

A proceeding to suspend or revoke a license, or to impose other discipline upon a licensee, is penal in nature. State ex rel. Vining v. Fla. Real Estate Comm’n, 281 So. 2d 487, 491 (Fla. 1973). Petitioner therefore bears the burden of proving the charges against Respondent by clear and convincing evidence, as the parties acknowledged at the outset of the hearing. Fox v. Dep’t of Health, 994 So. 2d 416, 418 (Fla. 1st DCA 2008) (citing Dep’t of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996)).

As stated by the Florida Supreme Court:

Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. In re Henson, 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz v. Walker, 492 So. 2d 797, 800 (Fla. 4th DCA 1983)). This burden of proof may be met where the evidence is in conflict; however, “it seems to preclude evidence that is ambiguous.” Westinghouse Elec. Corp. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991).

The ALJ further noted that penal statutes must be construed in terms of their literal meaning and words used by the Legislature may not be expanded to broaden the application of such statutes. Elmariah v. Dep’t of Bus. & Prof’l Reg., 574 So. 2d 164, 165 (Fla. 1st DCA 1990); Griffis v. Fish & Wildlife Conserv. Comm’n, 57 So. 3d 929, 931 (Fla. 1st DCA 2011); Beckett v. Dep’t of Fin. Servs., 982 So. 2d 94, 100 (Fla. 1st DCA 2008). “No conduct is to be regarded as included within a penal statute that is not reasonably proscribed by it; if there are any ambiguities included, they must be construed in favor of the licensee.” McClung v. Crim. Just. Stds. & Training Comm’n, 458 So. 2d 887, 888 (Fla. 5th DCA 1984).

Applying these well-established legal principles to the evidence at hand, the ALJ concluded that there was no clear or convincing evidence of improper conduct. The ALJ noted that the doctor had been in practice for 30 years with no prior disciplinary proceeding brought against him. The Judge credited the physician’s testimony regarding 13 office visits over 9½ months with the patient. According to the doctor’s testimony, on each occasion he followed his standard practice including offering the patient a gown for the physical treatment, and a chaperone in the room if desired. The Judge found the doctor’s testimony to be credible and persuasive that there was no improper conduct. The alleged victim testified that on 11 of the 13 occasions there was no misconduct, but on two occasions the doctor inappropriately rested his hand on her pubic area during an upper thigh manipulation for a chronic pain condition. The ALJ noted inconsistencies in the alleged victim’s testimony, as well as in statements she made to other witnesses who were presented in deposition testimony, as purported corroboration of her account based on disclosure she made to these witnesses (including her own mental health provider). The ALJ also noted that the physical description of the allegations did not seem possible based on the physical position of the physician and the victim according to her testimony. Finally, the ALJ noted that at least one witness presented to corroborate her account noted that she mentioned she has retained a lawyer to sue for monetary damages, and that she would rather have a monetary judgement than have the doctor criminally prosecuted.

Ultimately, the ALJ based the decision on a thorough review of all the testimony and evidence. Applying the proper legal standard, she concluded that the evidence was not clear or convincing. Nobody could reasonably argue that a health care practitioner should be sanctioned whenever there is evidence of sexual misconduct with a patient. Practitioners have a clear legal, ethical, and moral duty to not engage in any such behavior, and the licensing Boards should strictly enforce standards in disciplinary proceedings when credible complaints are brought forth. However, the Recommended Order in this case affirms that the accused does have due process rights, however difficult it may be to go through a public process to reach a decision rendered by an impartial fact finder based on the evidence.

The IPN/PRN Trap

The stresses put on medical professionals, especially licensed physicians and nurses, can be extreme. Long hours, emergency responses, and dealing with patients’ severe medical issues – some who will not survive – can take an emotional toll on even the strongest doctor or nurse. However, when a medical professional turns to alcohol or drugs to help cope with these issues, the outcomes can be disastrous for both the patients and the professional.

Acknowledging the stresses that medical professionals face, the Florida Legislature authorized the creation of the Professional Resource Network and the Intervention Project for Nurses to help medical professionals (and other licensed professionals) with alcohol and drug abuse problems.

While the programs have lofty and laudable goals, the reality is that, for many professionals who enter these programs, PRN and IPN can become an inescapable nightmare.

How the Trap is Set

The problem starts when a doctor or nurse does something wrong. It can be directly related to patient care, such as showing up to work hungover or impaired, or it can be unconnected to work, such as being charged with Driving Under the Influence (“DUI”). In any case, the Department of Health (“DOH”), which oversees both the Board of Medicine and the Board of Nursing, is notified.

Once DOH is notified, they will evaluate the claim. If DOH believes that the infraction impacts patient care (and DOH almost always believes that the infraction will affect patient care), they will issue an administrative complaint against the doctor or nurse seeking any number of potential remedies, including the imposing of fines and the revocation of the medical or nursing license.

However, once the administrative complaint is served, DOH will typically offer what seems like a very reasonable resolution, especially when the potential alternative is having the license revoked. That resolution involves the doctor or nurse agreeing to sign up for PRN or IPN and have their license suspended until they complete the program. DOH will also usually require that the investigative costs be paid as well.

The doctor or nurse, faced with the choice of either accepting this settlement or being forced to hire an attorney to fight these claims and potentially lose their license, believes that this is a reasonable solution and agrees to the settlement.

Once the agreement is signed and incorporated into a Final Order, the doctor or nurse must sign an agreement with PRN or IPN, agreeing to follow all its terms and agreeing to follow whatever medical treatment the program believes is appropriate, otherwise the doctor or nurse will be terminated from the program. Now the trap is set.

The Trap Gets Sprung

What many doctors and nurses who enter PRN or IPN do not realize is that, while it is an independent, non-governmental entity, if it cancels the contract with the doctor or nurse, that is an independent reason for DOH to revoke the doctor or nurse’s license. Fla. Stat. § 456.072(1)(hh). Thus, when PRN or IPN “recommend” a course of treatment – no matter how extreme or expensive – it must be followed, or the contract will be terminated. If the contract is terminated – DOH will almost certainly seek to revoke the license.

What happens to many people involved in these programs is that, regardless of what brought them there, they are “prescribed” an intensive program that involves no alcohol and bears significant costs, such as Intensive Outpatient Program Treatment. There is no opportunity for the doctor or nurse to appeal this decision – they must comply.

This is where the trap gets sprung. The doctor or nurse is already out of work due to the license suspension and now they are spending any accumulated savings on the initial program. Further, despite whether the person believes they have an alcohol problem or not, they are forbidden from having any alcohol. If that doctor or nurse has a urine test positive for alcohol (or voluntarily admits to using alcohol), even if it was a single, social drink – the trap is sprung.

Once there is any non-compliance, no matter how small, the provider will then “prescribe” an even more extreme program such as inpatient treatment. These programs can cost over $40,000 and must be attended or the contract will be cancelled. People who have already had their license suspended, who are out of work, and who have already spent any savings they had on the prior treatment, cannot afford this treatment. Regardless, if they do not attend, the contract will be cancelled and DOH will then seek to revoke the license. The practitioner is now trapped – pay money they don’t have for treatment they don’t need or lose their license.

“Good Cause” Defenses

The statute at issue allows DOH to revoke the license for:

Being terminated from an impaired practitioner program that is overseen by a consultant as described in s. 456.076, for failure to comply, without good cause, with the terms of the monitoring or participant contract entered into by the licensee, or for not successfully completing any drug treatment or alcohol treatment program.

Fla. Stat. § 456.072(1)(hh) (emphasis added).

A reasonable person may think that not having the money to comply with the treatment plan would constitute “good cause” or that being prescribed a treatment plan that doesn’t align with the problems the person is facing would constitute “good cause,” but the administrative law judges (“ALJ”) and the Department of Health would disagree.

While “good cause” is not defined in the statute, ALJs have limited its application to situations that make it almost superfluous for the Legislature to have included. As one ALJ wrote, “[s]ome examples of good cause for failing to comply with the terms of an impaired practitioner monitoring contract, as found in one DOAH case, include serious and unavoidable events in the life of a practitioner; such as the return to active military duty, the acute appearance of a disabling medical condition, or death of the practitioner.” Department of Health v. Grace Mary Guastella, M.D., DOAH Case Number 2013-12197 (DOAH 2017). Thus, according to these ALJs, unless you are active duty military, so disabled as to not be able to practice, or dead, you don’t have good cause to violate the treatment plan.

Once a practitioner is trapped in PRN or IPN, even if it only started out as “drinking alcoholic beverages, if only socially on rare occasion,” whatever the recommended course of treatment is, no matter how intense or expensive, it must be followed or the contract will be terminated and DOH will seek to revoke the license. Department of Health v. Grace Mary Guastella, M.D., DOAH Case Number 17-2923PL (DOAH 2018).

At least as the law stands, as interpreted by DOH and ALJs, good cause is rare and doesn’t provide the protection that a reasonable person reading the statute would believe it would provide.

Potential Challenges

One potential challenge that a practitioner caught in this trap could make is that the “good cause” exception has been read too narrowly and should encompass the ability to pay for the treatment and the medical necessity of the treatment. To date, no successful challenges to the existing “good cause” factors has been made. However, with passage of Amendment 6 to Florida’s Constitution in 2018, judges no longer need to defer to an administrative agency’s (like DOH) interpretation of a statute. See http://smithlawtlh.com/agencies-longer-afforded-deference-interpretation-rules-statutes/

In almost any other context, before a court can impose a penalty due to a person’s failure to pay some fine or court ordered payment (e.g., restitution, court fines, and child support), the Court must first determine if the person has the ability to pay. If the person does not have the ability to pay, then the Court cannot punish the person for not paying. See Del Valle v. State, 80 So. 3d 999, 1002 (Fla. 2011) (“an automatic revocation of probation without evidence presented as to ability to pay to support the trial court’s finding of willfulness violates due process.”); Vincent v. State, 699 So. 2d 806, 807 (Fla. 1st DCA 1997) (“In order to revoke a defendant’s probation based on a failure to pay restitution, a trial court must find that the defendant had the ability to pay the restitution not only before ordering restitution [but also] before revoking probation for failure to pay restitution imposed as a condition thereof.”); and Pompey v. Cochran, 685 So. 2d 1007, 1009 (Fla. 4th DCA 1997) (“finding that Pompey’s incarceration was unlawful because there was no evidence at all to support the trial court’s affirmative finding that the petitioner had the ability to pay a [back child support].”).

A strong argument could be made that the ALJ’s limited interpretation of the “good cause” exception and the imposition of sanctions without determining the practitioner’s ability to pay violates the statute and the practitioner’s due process rights.

There is also a potential challenge to the entire PRN/IPN setup as a violation of the Florida Constitution. Article II, Section 3 of the Florida Constitution provides:

The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.

Interpreting this, the Court has held that, while power can be delegated to other branches, the Legislature must define clear guidelines and limitations in the statute. Specifically, the Court has held, that “statutes granting power to the executive branch must clearly announce adequate standards to guide … in the execution of the powers delegated. The statute must so clearly define the power delegated that the [executive] is precluded from acting through whim, showing favoritism, or exercising unbridled discretion.” Florida Dept. of State, Div. of Elections v. Martin, 916 So. 2d 763, 770 (Fla. 2005).

Here, the Legislature establishes the Impaired Practitioner Programs in Florida Statute § 456.076. That statute provides no limits or guidance as to what can be contained in the participant contract, the limits on the treatments these programs can require, or any way for a participant to appeal or seek a second opinion. Further, as described above, Florida Statute § 456.072(1)(hh) allows DOH to revoke a participant’s license if they are terminated from a program, but provides no direction or guidance as to what grounds constitute good cause for a program to terminate a participant. In short, the Legislature has improperly delegated its authority to a third-party.

Based on the foregoing, there is a strong argument to be made that both PRN and IPN are unconstitutional and, without additional guidance from the Legislature, they should not be permitted at all or, at the very least, DOH cannot take action against a practitioner for not complying with the terms of a PRN or IPN contract or course of treatment.

Conclusion

If you are being offered IPN or PRN as a term of settlement or if you have already agreed to PRN or IPN and are having trouble meeting their requirements, you should contact an experienced health care attorney to discuss your rights.