Tag Archives: IPN

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.

Is PRN or IPN Threatening Your Career?

Many licensed professionals are increasingly finding themselves at the mercy of non-governmental organizations that wield enormous power over the ability of health care and other licensed professionals to simply work and earn a livelihood. Known as the Impaired Professional Network (“IPN”) and the Professional Resource Network (“PRN”), these groups were created by the Florida Legislature (§ 456.076, Fla. Stat.) to assist professionals who may have substance abuse or alcohol problems that can affect their ability to safely render services to the public. While it sounds like a great concept, in practice, these statutes provide virtually no standards to be followed by IPN or PRN in deciding who may be subject to expensive and lengthy treatment programs to maintain their licenses.

The process will typically begin with a complaint investigation into allegations that a professional may have a substance abuse or alcohol problem. This might be triggered by an employer reporting concerns to the Board of Nursing, or by arrest for a DUI or possession of a controlled substance. Rather than face formal disciplinary sanctions, many professionals agree to enter into a “contract” with IPN or PRN for assessment and treatment. Once under “contract”, the professional is now at the mercy of IPN or PRN as to the requirements of a treatment program. For example, IPN or PRN may demand that the professional enter a 90-day inpatient treatment program costing as much as $40,000.00 – more than many professionals can reasonably afford – as a contract requirement. Failure to comply results in potential license suspension or revocation, and payment of fines. Another example would be failing to timely respond to a urine test request or testing positive for a controlled substance. In such cases IPN or PRN can impose a requirement to extend a lengthy multi-year “contract” for even longer periods of monitoring at the person’s own expense.

Worse, there are almost no due process rights to challenge an IPN or PRN decision. For example, a professional might be ordered by IPN or PRN to attend an exorbitantly expensive rehabilitation program on the basis that the person had a glass of wine at dinner, or smoked marijuana while not at work or on duty. Even though the professional could present overwhelming evidence that they do not have an alcohol or substance abuse problem, including testimony from employers of exemplary work performance and absolutely zero indication of any substance abuse problem, the professional can still have their license suspended or revoked simply because they did not comply with a decision of IPN or PRN to participate in the inpatient treatment program. The administrative hearing rights have been limited to simply deciding whether or not IPN or PRN ordered a treatment, and whether or not the individual complied. In short, due process has, for all practical purposes, been eliminated and IPN and PRN have no accountability for their decisions which can have a dramatic and even devastating impact on the professional’s career.

This process has been described as a “trap” and the full implications of the IPN/PRN trap are discussed here.

While nobody would suggest that an impaired physician, nurse, or other professional should be allowed to practice on patients, there also needs to accountability in the system that ensures protection to the professionals subject to these programs. Having a glass of wine or a beer at home, while off-duty and not on-call, should not be a career ending offense. Yet that is exactly the situation that many professionals encounter in agreeing to enter into an IPN or PRN program. Some professionals are now beginning to explore their legal options to challenge the IPN and PRN system. Whether through circuit court legal challenges, administrative litigation, or legislative change (or a combination of all three), professionals subject to IPN and PRN arbitrary actions may have legal avenues available to them to bring about reform in an unfair system.

If you believe IPN or PRN are threatening your ability to practice your profession, contact an attorney at Smith & Associates to discuss your rights and options.

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.