All professionals licensed in the State of Florida who are licensed by a regulatory authority should have a strong understanding of the investigatory process that occurs when a complaint is made against them. These authorities include boards under the Department of Health (DOH) (e.g. Board of Medicine, Board of Nursing, Board of Pharmacy, etc) or the Department of Business and Professional Regulation (DBPR) or any of its boards, including real estate agents and brokers, architects, and engineers, A licensee having the ability to make quick, informed decisions within the prescribed time period under Florida law is essential.
For Florida professionals facing an allegation of professional misconduct, you have the right to defend. If you fail to take such action, the allegation may lead to your license being revoked or suspended. Here is a brief summary of the major stages of the complaint disciplinary process:
Investigation Stage
The two scenarios typically cause a board to initiate an investigation concerning your professional activity. First, regulatory authorities such as the DOH or DBPR receive a written complaint alleging that you have violated one of the statutes or rules that govern your professional trade (e.g. 456.072 for health care professionals); or regulatory authorities initiate disciplinary action on their own volition in belief that you have violated a statute or rule. However, not just any complaint will suffice. In other words, a complaint with conclusory allegations that a statute or rule was violated without support is insufficient. A written complaint must be legally sufficient to initiate an investigation and contain sufficient facts that show a violation of statute or rule has occurred.
Once a complaint is deemed sufficient, the regulatory authority is required (with limited exceptions) to notify you of the investigation and provide you with a copy of the complaint or document that resulted in the investigation. This contact is through an investigator. Upon receipt, you have a specific amount of time to respond (it varies based on the profession with most being 20 days). The matter will then proceed to review by a probable cause panel (PCP).
Probable Cause Panel Review
The PCP consists of members of your professional board that will decide whether probable cause exists to prosecute the case. Responding to the complaint is vital as it is your opportunity to refute the allegations or explain your reasons in mitigation based on the circumstances. On the other hand, any response may also be used against you in later proceedings regarding the complaint. Thus, it is important to make this decision carefully and discuss it with an attorney prior to submitting a response.
When the investigation concludes, and the PCP has reviewed the case, there are two possible outcomes. First, the PCP may decide there is insufficient evidence to prosecute the complaint. If this occurs, the complaint will be dismissed, or a letter of concern or guidance may be issued. This action is exempt from public disclosure. If the PCP concludes that there is sufficient evidence to prosecute the allegations, a formal administrative complaint will be filed.
Administrative Complaint
The filing of a formal administrative complaint gives licensees the right to contest it under the Florida Administrative Procedures Act, Chapter 120 of the Florida Statutes. The formal administrative complaint will contain a notice of rights that states that you have a certain amount of time, generally 21 days from the date of receipt, to challenge and claim your right to a hearing. It is extremely important to exercise your rights as instructed in the notice of rights. If you fail to act, such rights to a hearing will be waived or in other words, lost. Potential punishments can include fines, license suspension, license revocation, or some combination thereof, together with an assessment of the costs of the investigation. Therefore, the receipt of a complaint should not be neglected or ignored.
Formal and Informal Hearings
There are two distinct types of hearings available to challenge the complaint: (1) a hearing before the applicable board or regulatory authority in which there are no disputed issues of fact (known as an informal hearing); and (2) a hearing in front of an administrative law judge (ALJ) of the Division of Administrative Hearings in which disputed issues of fact are determined (known as a formal hearing).
To give you an example, here is a detailed chart put out by the DOH mapping the full process:
Important Points to Remember
1. Gather any and all documents you may have regarding the subject of the complaint. Before you meet with anyone, consult an attorney. There is often a short time frame for you to obtain an attorney to evaluate the issues before the investigator seeks authority to file a formal complaint.
2. Read everything you receive. The importance of this simple step cannot be emphasized enough.
3. Note all deadlines referenced in the documents. These deadlines are mandatory. Do not anticipate any second chances.
4. If you are licensed in other states, disciplinary action in Florida will likely affect your license in those jurisdictions. Certain issues can follow you from state to state, so it is important to know and evaluate your options.
5. Criminal convictions can have an impact on professional licenses. Many licensees and criminal defense attorneys are unaware. When faced with a criminal prosecution, special attention must be paid to the impact of a judgment or plea agreement. A number of criminal convictions and pleas must be self-reported to the applicable licensing authority. Some could result in immediate suspension of a license, where others may trigger a formal administrative complaint. It is important to consult with an attorney before taking a plea or going to trial.
6. Possible disciplinary action includes remedial education, reprimands, fines, administrative costs, probation, referrals to substance abuse treatment program (e.g. for health care professionals, Professionals Resource Network (PRN) and Intervention Project for Nurses (IPN)), license suspension, and license revocation.
If you have any questions regarding the licensing defense process, please do not hesitate to contact attorney Matthew M. Fischer (matt@fischerlawpa.com). Matthew specializes in health law related issues and is a former Assistant General Counsel at the FBI and Senior Attorney Advisor at the U.S. Department of Health and Human Services.