Category Archives: Licensing

Defending Your Professional License from an Administrative Complaint

You worked hard to obtain your professional license. You also work hard to maintain your professional license. Whether it be a medical license, a nursing license, a real estate license or any of the other professional licenses issued by the Florida Department of Health or the Department of Business and Professional Regulation, these professional licenses allow you to practice your trade and earn a living.

However, if the agency or board in charge of your license has probable cause to believe your have violated a statute or rule governing your license, it can issue an administrative complaint and seek to take disciplinary action against you, including the revocation of your license.

It is important to have strong, experienced legal counsel representing you through the disciplinary process.

How Does the Process Work

The process starts when an agency or board receives a complaint about a licensed individual. These complaints can come from anyone, including your employer, law enforcement, or the general public. Once a complaint is received, the appropriate board will notify the licensed individual and begin its investigation. The complaint and any investigative materials will remain confidential during the investigation process.

The investigation is your first opportunity to address any allegations of wrongdoing. If you receive an investigation letter or a phone call from an investigator, you will be given the opportunity to explain, deny, or otherwise justify the allegations contained in the complaint. However, please note that, while this is not a criminal matter, anything you say can be used against you as the process proceeds.

After the investigation is concluded, the investigation team will present their findings to the appropriate probable cause panel who will make a determination as to whether probable cause exists to issue an administrative complaint. As this process is still confidential, you will not be informed about the result until after the panel has made its decision. If the panel finds that no probable cause exists, the matter will be closed, and the complaint and investigative materials will be kept confidential.

If the panel determines that probable cause does exist, an administrative complaint will be issued and served upon you, to your address of record, by certified mail. Once you receive an administrative complaint, time is of the essence. If you fail to timely respond within 21 days, your right to dispute the claims in the complaint may be waived.

In response to the complaint, you will have three options:

  1. Relinquish your license. Please note that, if you chose this option, it will be considered a disciplinary action and will affect your ability to obtain or renew any other professional licenses you may have in Florida and will likely have a negative affect on any professional licenses you may maintain in other states.
  2. Request an Informal Hearing. If you choose this option, you are admitting the material facts of the complaint and will be assigned an informal hearing officer who will hear your case and decide what, if any, punishment is proper. You should be very careful in choosing this option as you cannot deny the allegations in the complaint at the informal hearing.
  3. Request a Formal Administrative Hearing. This option is usually the best option to select, however you must do more than simply select the correct checkbox (e.g., you must identify the facts you believe are in dispute). If you select this option, your case will be forwarded to the Division of Administrative Hearings where an Administrative Law Judge (ALJ) will be assigned to your case. You will be given the opportunity to conduct discovery (e.g., request relevant documents and take depositions of potential witnesses) and you will be given an opportunity to defend against the allegations and present your case. Importantly, the board or department will bear the burden of proving the case by clear and convincing evidence – that means that the burden is not on you to prove you didn’t do what is alleged, but that the board must prove everything that it has alleged.

Regardless of which option you pick, a final order will eventually be issued. While the best outcome is that no action is taken against your license, the potential disciplinary actions can include the issuance of a letter of reprimand, imposition of fines and costs, the placing of restrictions upon the license, suspension of the license, or permanent revocation of the license.

Why Should I Retain an Experienced Professional Licensing Attorney

An experienced professional licensing attorney can help you through the entire disciplinary process. For example, if you receive an investigation notice, an experienced attorney can draft a legal response to the investigation. This has two benefits 1) it prevents you from accidentally revealing information to the investigator that may be harmful to your case, and 2) it helps the probable cause panel understand the factual and legal issues within the complaint. Prevailing at the probable cause panel keeps the complaint confidential and prevents the need to go through the formal administrative hearing process.

Further, if an administrative complaint is issued, the board or department will be represented by its own attorneys. Having an experienced attorney fighting for you levels the playing field and helps ensure that you are able to put on your best defense. Additionally, an experienced professional licensing attorney can negotiate a reasonable settlement of the complaint early in the process to avoid the costs and expenses of a full administrative hearing.

If you have been notified that you are being investigated related to your professional license or if you have received an administrative complaint related to your professional license, you can contact an experienced professional licensing attorney at Smith & Associates for a free consultation.

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:

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

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.


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.

Hemp Cultivation Licenses in Florida: The End is in Sight

Barring any unforeseen events, by the end of April 2020, the U.S. Department of Agriculture should have approved Florida’s proposed hemp cultivation rules (located at 5B-57.014, F.A.C.). Once this occurs, any person interested in growing/cultivating hemp can apply for a license from the State and, once approved, begin growing hemp.

Licensing and Cultivation Rules

To be eligible for a license under the proposed rules, you must first fill out an application and provide the following information:

  • A description of the property you intend to use for the cultivation of hemp, including address, legal description, tax parcel number, and GPS coordinates.
  • A receipt showing that each person who has “control” and “responsibility” for the operation has received Livescan Fingerprinting and background checks; and
  • An environmental containment plan showing containment systems to prevent hemp from spreading from the licensed land, a plan for cleaning equipment before it is removed from the land, and a transportation plan to ensure all hemp is contained during any off-site movement.

5B-57.014(4), F.A.C.

Once the application is approved and the license issued, it will need to be renewed annually. To actually grow hemp, cultivators must comply with the cultivation requirements set forth by rule. These include the following:

  • Complying with the environmental containment plan;
  • Complying with the Hemp Waste Disposal Manual;
  • Maintaining documents describing the varieties of hemp cultivated for three years after harvest;
  • Maintaining the certification, label, and receipts for all Certified hemp seed or Certified hemp cultivars for three years after harvest.
  • Use only Certified hemp seed or Certified hemp cultivars or nursery stock from a Florida licensed hemp nursery;
  • Only cultivate hemp on lands that are only used for a bona fide agricultural purpose or are zoned agricultural or industrial;
  • Follow signage requirements; and
  • Identify each hemp cultivation lot with a unique numerical identification number.

5B-57.014(6), F.A.C.

Finally, prior to harvest, a representative sample of the crop must be tested to ensure it is not “hot” (i.e., containing more THC than is allowed by law.) 5B-57.014(8), F.A.C.

Potential Issues

Currently, there are only two sources of “certified” seeds for potential hemp growers to obtain their seeds from: 1) seeds that have been certified by the Association of Official Seed Analysts (“AOSA”) or 2) “pilot project hemp seeds” from an approved Florida college or university. 5E-4.016, F.A.C.

This provides a conundrum for growers trying to determine which seeds to invest in. Currently, no AOSA certified seeds are from Florida. They are from other states with very different climates than Florida (e.g., Colorado, California, Washington, etc.). This poses a real concern as to how these seeds will tolerate the Flroida weather, if these seeds will end up producing “hot” hemp when grown in the different climate, or if they will produce the proper germination rate.

Meanwhile, the “pilot project” seeds have only gone through one or two growth cycles – cycles that were done under scientific, university settings. How these seeds will react when grown in the “wild” is still unknown.

This means that cultivators should carefully scrutinize their seed purchasing contracts and negotiate with seed suppliers to ensure that if the hemp ends up “hot” or with improper germination rates, the cultivator can receive refunds or new seeds.

Additionally, some labs are offering discounts on additional testing. While Florida only requires one test right before harvest, labs like Kaycha Labs are offering discounts on testing when four tests are ordered per growth cycle. This early and often testing allows for remediation and potentially salvaging the crop.

In short, until Florida has tried and true seeds of its own, how these seeds will grow is a big uncertainty that cultivators should be prepared for and should take steps to mitigate against.


Hemp cultivation in Florida is right around the corner. If you are considering cultivating hemp, now is the time to begin the process. If you have any questions about obtaining the license, complying with the applicable laws, or dealing with the business and contracting end of cultivation, you should contact an attorney at Smith & Associates to discuss your rights and options.


Responding to the ongoing global Coronavirus pandemic, government, at all levels, has been taking drastic measures to help combat the spread of COVID-19 and to provide economic assistance to the individuals and businesses that have been impacted. This article highlights some of the key actions taken by state and federal government

Economic Assistance

In an effort to slow the spread of COVID-19, President Trump issued the national guidelines “15 Days to Slow the Spread” and, after briefly suggesting that businesses and people could potentially return to normal by Easter, extended the National Guidelines for at least another 30 days. Florida Governor Ron DeSantis initially resisted calls for a state-wide lockdown but has now issued an Executive Order providing for “Safer at Home” measures including the closure of all non-essential businesses, and directing that citizens remain at home except for essential services and functions. The economic fallout has been dramatic as the economy grinds to a halt. Global economic recession is now a reality, with the only question being how long will the recession last and when can the country get back to work.

While all sectors of the economy have been dramatically impacted, small businesses and individual employees have been especially hard hit. With the need to continue social distancing guidelines and business closures, the Federal Government and the State of Florida have implemented economic packages to provide emergency relief and economic stimulus for the affected businesses and the people who were employed by them.

The CARES Act: On Friday, March 27, 2020, the Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) was signed into law. This law provides an estimated $2 trillion in relief to individuals and businesses suffering due to COVID-19.

  • Individuals: Under the CARES Act:
    • Individuals will receive a check of up to $1,200 per person and $500 per child based upon the individuals income;
    • If you are on unemployment, the amount of time you can be on unemployment has increased by 13 weeks and the federal government will add an additional $600 per week to the unemployment pay for up to four months;
    • All federal held student loan payments, including interest, are deferred through September 30, 2020 without penalty to the borrower;
    • A Pandemic Unemployment Assistance program for gig workers and freelancers is established;
    • The time to file 2019 tax returns is extended until July 15, 2020; and
    • All health insurance plans are mandated to cover COVID-19 testing, vaccination and treatment,
  • Small Businesses: The CARES Act defines a small business as one with 500 or fewer employees. For these small businesses, the CARES Act:
    • Provides $10 billion for grants of up to $10,000 to provide emergency funds for small businesses to cover immediate operating costs;
    • Allows for the Small Business Administration to provide loans of up to $10 million per business. Any funds from that loan that are used to maintain payroll, keep workers on the books or pay for rent, mortgage and existing debt could be forgiven, provided that workers stay employed through the end of June of 2020; and
    • For businesses with existing SBA loans, $17 billion has been allocated to help pay for up to six months of payments.
    • With regards to whether a business has fewer than 500 employees, the SBA will be applying its “affiliation” rules to determine if a business is actually “controlled” by another business. If so, those businesses will be treated as a single business for the purposes of determining the number of employees. SBA’s guide on “affiliations” can be found here.
  • Larger Businesses and Targeted Businesses: In addition to small businesses, the CARES Act provides some relief to larger businesses and also to specific types of businesses. These include:
    • The “Main Street Business Lending” program which will be administered by the Department of the Treasury and Federal Reserve. This program provides:
      • $25 billion in loans or loan guarantees for passenger air carriers, aviation repair stations, and airline ticket agents;
      • $4 billion in loans or loan guarantees for cargo air carriers;
      • $17 billion in loans or loan guarantees for businesses critical to maintaining national security;
      • $454 billion (plus any unused amounts from the programs above) for loans, loan guarantees and other investments in support of the Federal Reserve’s lending facilities that support eligible businesses, states and municipalities.
    • Tax credits for businesses that keep employees on the payroll;
    • For hospitals, the CARES Act:
      • Sets up a $100 billion emergency fund to keep hospitals and employees afloat;
      • Give hospitals that treat Medicare COVID-19 patients a 20% payment increase for all services provided; and
      • Lifts the planned 2% Medicare sequestration payments cuts to providers until the end of this year.
      • Providing $1.32 billion in immediate additional funding for community health centers; and
      • Significantly expanding the availability and use of telehealth.

The Florida Small Business Emergency Bridge Loan Program: The Florida Department of Economic Opportunity administers this Program in partnership with the Florida SBDC Network and Florida First Capital Finance Corporation to provide cash flow to businesses economically impacted by COVID-19. These short-term, interest-free loans help bridge the gap between the time the economic impact occurred and when a business secures other financial resources, including payment of insurance claims or longer-term Small Business Administration (SBA) loans. Up to $50 million has been allocated for the Program. The application period for this short-term interest-free loan opened on March 17, 2020 and will continue at least through May 8, 2020. The highlights of the program are:

  • Short-term interest-free loans in an amount up to $50,000 for business owners.
  • Loans to be repaid without interest within one year.
  • Interest rates after one year go to 12%.
  • Purpose of the Program is to provide short-term liquidity to small business owners to remain open despite economic impacts of the Coronavirus pandemic.

“Families First Coronavirus Response Act” (H.R. 6201): The key features place new responsibilities on employers to assist employees who are affected when the employee or a family member is affected by Coronavirus. The Bill includes the following:

  • Applies to businesses with fewer than 500 employees.
  • Paid Family and Medical Leave for 12 weeks (the first 14 days are to be paid under sick leave provisions).
  • This leave benefit covers employees who have been working for at least 30 calendar days.
  • Among other uses, employees may use the leave to respond to quarantine requirements or recommendations, to care for family members who are responding to quarantine requirements or recommendations, and to care for a child whose school has been closed as a result of the COVID-19 pandemic.
  • After the first 14 days, employers must compensate employees in an amount that is not less than two-thirds of the employee’s regular rate of pay. These pay requirements apply to only the COVID-19-related leave reasons listed above.
  • The provisions will go into effect 15 days after the date of enactment and expire on December 31, 2020.
  • Paid Sick Leave provisions of the Bill also require employers with fewer than 500 employees to provide full-time employees two weeks (80 hours) of paid sick leave for specific circumstances related to COVID-19 (e.g., self-isolating, doctors’ visits, etc.).
  • Part-time employees are also covered and entitled to paid sick leave for the number of hours equal to the number of hours they work, on average, over a two-week period.
  • Employers must compensate employees for any paid sick time they take at their regular rates of pay.
  • Employers will be required to post a notice informing employees of their rights to leave.
  • As currently drafted, the Bill expressly provides that it does not preempt existing state or local paid sick leave entitlements.
  • Employers will be provided with tax credits to offset their costs in meeting the new paid leave mandates.
  • The provisions will go into effect 15 days after the date of enactment and expire on December 31, 2020.
  • The Bill provides $1 billion in emergency unemployment insurance (UI) relief to the states: $500 million for costs associated with increased administration of each state’s UI program and $500 million held in reserve to assist states with a 10 percent increase in unemployment. Besides the necessary increase in unemployment, in order to receive a portion of this grant money, states must temporarily relax certain UI eligibility requirements, such as waiting periods and work search requirements.

Florida Department of Emergency Management – Emergency Requisition Requests: For healthcare facilities unable to get necessary supplies, including personal protective equipment, N95 Masks, and COVID-19 tests, the Florida Department of Emergency Management has created a COVID_19 Emergency Requisition Request system that allows the facilities to request necessary equipment when it is unable to obtain it anywhere else. The form for this can be found here.

Actions Taken to Slow/Stop the Spread of COVID-19

The Executive Office of the Governor: As of the date of this article, the Governor has issued numerous Executive Orders aimed at slowing or stopping the spread of COVID-19. These orders include:

  • EO #2020-51 establishing a coronavirus response protocol and directing a public health emergency;
  • EO #2020-52 declaring a state of emergency;
  • EO #2020-68 suspending bars, pubs, and nightclubs and limiting capacity at restaurants, and limiting the size of groups at public beaches;
  • EO #2020-69 allowing local government meeting to occur electronically;
  • EO #2020-70 restricting restaurants to take out food service only and suspending movie theatres, concert houses, auditoriums, playhouses, bowling alleys, arcades, gymnasiums, fitness studios and beaches in Broward and Palm Beach counties;
  • EO #2020-71 restricting on-site alcoholic sales, but allowing restaurants to sell packaged alcohol to-go and closing gyms and fitness centers;
  • EO #2020-72 prohibiting any non-emergency or elective emergency procedure or surgery;
  • EO #2020-80 requiring the screening and isolation of anyone arriving in Florida from New York, New Jersey, or Connecticut by airplane;
  • EO #2020-82 requiring the screening and isolation of anyone arriving in Florida from New York, New Jersey, or Connecticut regardless of how they arrive;
  • EO #2020-83 advising people over the age of 65 or with other health issues to stay at home and advising against any gathering, including work, where 10 or more people are together.
  • EO #2020-91 and 92, commonly referred to as the “Safer at Home” order, closing all non-essential businesses, and directing that citizens remain at home except for essential services and functions.

Florida State Agencies: In addition to the actions taken by the Governor, state agencies are also taking action.

  • All agencies have suspended licensing, and renewal requirements for existing licensed professionals for at least 30 days.
  • Florida Department of Emergency Management: FDEM has activated Level 1, which is a full scale Activation of State Emergency Response Teams and has mobilized the national guard. Additionally, FDEM has:
    • Established a grant program to assist Florida Counties;
    • Worked with the federal government to provide needed medical supplies, including mobile intensive care units, ventilators, hospital beds, personal Protective equipment,. N95 face masks, and other necessary medical supplies.
    • As discussed above, FDEM has established a process to allow healthcare facilities to request these needed items.
    • FDEM, in conjunction with the Agency for Healthcare Administration, have implemented emergency rules restricting who can visit nursing homes and assisted living facilities.
  • Florida Department of Highway Safety and Motor Vehicles: Driver license renewal requirements have been suspended for at least 30 days.
  • Florida Department of State: The Florida Department of State has extended the annual report filing deadline for businesses until June 30, 2020.

Centers for Medicare and Medicaid Services (“CMS”): CMS, in conjunction with Florida Medicaid, has also taken steps to stop the spread of COVID-19 and provide additional access to care to patients that have or may have COVID-19. These steps include:

  • Confirmation that Florida Medicaid will cover all medically necessary services related to testing and treatment of COVID-19;
  • Waiving prior authorization for medically necessary services and supplies for Florida Medicaid patients;
  • Removing limits on prescription refills and allowing for 90-day supplies of medications for Florida Medicaid patients;
  • Waiving co-pays for all services for Florida Medicaid patients; and
  • Waiving Medicare Telehealth Reimbursement Restrictions.

Schools and Universities: School districts and universities across the state are making significant changes to ensure the safety of their students, staff, and the community at large. These include:

  • Extending spring break until March 30, 2020 (with the exception of Collier, Duval, Sumter, and Union counties);
  • Implementing distance learning for all K-12 students from March 30 through at least April 15th;
  • Cancelling required student assessments and adjusting graduation and grade promotion requirements accordingly;
  • Cancelling school grades;
  • Establishing programs to provide technology and internet access to low-income K-12 students to access distance learning;
  • Colleges and universities are directed to use virtual or remote learning for the remainder of the spring semester and all other activities and gatherings have been cancelled or postponed; and
  • Colleges and universities have cancelled May 2020 commencement ceremonies and are considering extending the spring semester through June of 2020.

County and other Local Government Actions: Counties and other local governments are also taking action to stem the tide of COVID-19. These actions include:

  • Orange and Osceola County have ordered all theme parks to close and imposed curfews;
  • Miami-Dade County has ordered parks and public beaches to close;
  • Many other counties have also closed or limited beach access;
  • Lake County has issued emergency orders requesting that residents over 65 shelter in place and requesting that employers with residents over the age of 65 to allow working from home.
  • The Florida Keys have closed to visitors; and
  • Some counties and cities have also closed boat ramps and restricted access to boating and boat gatherings.

Stay Up To Date

Additionally, both the state and federal governments are providing numerous online resources to keep people informed of COVID-19 and how to protect themselves. These sites include:


COVID-19 is an unprecedented challenge for everyone. If you have concerns as to how to access the resources described in this article, please consider contacting an attorney at Smith & Associates to discuss your rights under these new laws and regulation.

New Law Allows Pharmacists to Diagnose and Treat Certain Medical Conditions

On March 11, 2020, Governor Ron DeSantis signed HB 389 into law. This law allows qualified pharmacists the ability to treat chronic illnesses and to test, diagnose, and treat certain minor, non-chronic illnesses.

Treatment of Chronic Illnesses

This new law creates Florida Statute § 465.1865 entitled “Collaborative Pharmacy Practice for Chronic Health Conditions.” This section sets forth the requirements for a pharmacist to treat certain chronic health conditions. Importantly, these chronic health conditions are limited to:

  • Arthritis;
  • Asthma;
  • Chronic obstructive pulmonary diseases;
  • Type 2 Diabetes;
  • Human immunodeficiency virus or acquired immune deficiency syndrome;
  • Obesity; and
  • Other chronic conditions that the Board of Pharmacy may allow by future rule making.

Fla. Stat. § 465.1865(1).

To be able to treat these chronic conditions, a pharmacist must enter into a “Collaborative Pharmacy Practice Agreement” with the patient’s licensed physician. This agreement must include:

  • The name of the patient(s) for whom a pharmacist may provide services;
  • The chronic health condition(s) to be managed;
  • The specific drugs to be managed;
  • The circumstances under which the pharmacist may order and evaluate laboratory or clinical tests;
  • The conditions upon which the pharmacist must notify the physician;
  • The beginning and end dates of the treatment; and
  • A statement that the agreement can be terminated at any time by either the pharmacist or the physician.

Fla. Stat. § 465.1865(3)(a).

Additionally, before a pharmacist can treat these chronic conditions, the pharmacists must be certified by the Board of Pharmacy. To obtain this certification, the pharmacists must:

  • Have an active pharmacy license;
  • Have a Doctor of Pharmacy or have completed five years as a licensed pharmacist;
  • Complete a 20-hour course on Collaborative Treatment of Chronic Health Conditions that is approved by the Board of Pharmacy;
  • Maintain at least $250,000 of professional liability insurance; and
  • Have an established system for keeping patient records.

Fla. Stat. § 465.1865(2).

As this law was recently passed, rulemaking has not yet begun. However, as the Board of Pharmacy promulgates rules on collaborative treatment of chronic illnesses, we will provide update with any new developments.

Treatment of Non-Chronic Health Conditions

Additionally, the new law created Florida Statute § 465.1895, which allows for the testing and treatment of minor, non-chronic health conditions by a pharmacist. Minor, non-chronic health conditions include:

  • Influenza;
  • Streptococcus;
  • Lice;
  • Certain skin conditions; and
  • Minor, uncomplicated infections.

Fla. Stat. § 465.1895(1)(a).

Much like the treatment of chronic conditions, a pharmacist who wishes to treat non-chronic, minor illnesses must do so under the supervision of a physician and pursuant to written protocol between the pharmacist and the physician. This protocol must contain:

  • The categories of patients the pharmacist s authorized to treat;
  • The physician’s instruction for obtaining relevant patient medical history;
  • The physician’s instructions for the treatment of the condition based on the patients age, symptoms, and test results; and
  • A process and schedule for the physician to review the pharmacist’s actions and for the pharmacist to notify the physician of his or her actions.

Fla. Stat. § 465.1895(5).

As rule making progresses, new requirements may be added to this list.

Finally, any pharmacist who wishes to treat minor, non-chronic health conditions must be certified by the Board of Pharmacy to do so. To obtain this certification, the pharmacist must, among other things:

  • Hold an active license to practice pharmacy in Florida;
  • Take a 20-hour board approved education course on assessing and treating minor, non-chronic health conditions;
  • Maintain at least $250,000 of liability coverage;
  • Upon request, furnish patient health care records to a health care practitioner designated by the patient; and
  • Maintain patient records for five years.

Fla. Stat. § 465.1895(2).


This new law takes effect on July 1, 2020. Right now, the Board of Pharmacy is in the beginning stages of developing rules to implement this new law. As these rules progress, we will provide any important updates.

If you are a pharmacist who would like to take advantage of this new law and have questions about how to obtain licensing, you should contact an attorney at Smith & Associates to discuss your options.