Protecting Your Professional License
This section is offered for background only, as it is very confusing and of limited value. Many years ago, the state of Florida recognized the importance of professional regulation. A system of regulation developed in which each profession was responsible for regulating its own kind. It soon became apparent that there were common issues among all of the professions, and that in the interest of fairness and efficiency, a uniform system of regulation made sense. Florida’s first attempt at such a system was called the Department of Professional and Occupational Regulation (DPOR). This was an executive agency, that is, it reported to the Governor of the state. In 1979, after realizing the benefits of centralized license regulation, the Legislature improved and strengthened the system and created the Department of Professional Regulation (DPR). The Florida DPR was one of the first, and one of the most advanced professional license regulatory systems in the country. All professions not otherwise regulated (e.g. insurance, mortgage banking, teachers, lawyers, etc.) came under the regulatory umbrella of DPR.
Never being able to let well enough alone, the legislature soon started chipping away at the concept of regulating all professional licensees the same. First, bowing to intense political pressure from the real estate industry, a separate division within DPR was created to handle real estate salespeople and brokers. Then, in 1993, the DPR was merged with the Department of Business Regulation to form the Department of Business and Professional Regulation (DBPR). In 1994, the Agency for Healthcare Administration (AHCA) was formed as a separate division within the DBPR (but it did not report to the agency head of the DBPR), to handle the regulation of the healthcare related professions. To further complicate matters, the legislature broke apart the then largest state agency, the Department of Health and Rehabilitative Services (HRS) into, among others, the Department of Health (DOH). The mission of the DOH is to regulate all healthcare related areas. This includes not only physicians, nurses, pharmacists, etc., but also hospitals and Health Maintenance Organizations (HMOs). Currently, almost all health related professions are regulated by the DOH.
Most non-healthcare professional licensees, such as barbers, real estate brokers, engineers, etc., are still regulated by DBPR. If you are not now totally confused, then you have not been reading carefully enough, in which case I suggest that you wake up and proceed to the next paragraph. Just remember that DBPR regulates most of the non-healthcare related professions, while DOH regulates most of the healthcare related professions.
Each year the legislature makes changes to the laws regarding the regulation of professional licensees. New professions are added, sometimes professions are deregulated, the names of the agencies which regulate are changed, agencies are split apart or merged together, etc., but none of that has much of an impact upon the individual licensees. There are certain constitutional guarantees and rules of procedure that have remained relatively undisturbed throughout all of the legislative turmoil. It is those issues upon which this course will concentrate.
The reason that states regulate most professionals is for the protection of the consuming public. The legislative purpose for establishing central agencies to oversee regulation of most of the professions is twofold: First, it allows the various professional boards within DBPR and DOH to share assets and staff, thus enhancing efficiency and uniformity. Second, it establishes a system of checks-and-balances over each of the professional boards, thus minimizing the appearance of having the fox guard the hen house. Generally, the right to practice a regulated profession in Florida is called a “license”. That right is also sometimes referred to as “registration” or “certification”. As a practical matter, those terms all mean about the same thing. A license (or registration or certification) is not the piece of paper, which is issued to the person by the agency; rather the license is the right to practice, which is simply evidenced by the paper license.
Most, but not all, professions in Florida are regulated by DBPR and DOH. The most notable exception is the legal profession, which is regulated by the Florida Supreme Court through the Florida Bar. Other exceptions are insurance agents, bankers and private investigators. Most of the professions within the DBPR and DOH are regulated directly by a state agency. Professional boards are generally composed of from five to fifteen members, as established by statutes, who are appointed by the Governor and confirmed by the Senate. The criteria for board membership are set forth in the various practice acts. A practice act is the set of laws that pertain to a particular profession or group of related professions. Generally the boards are composed of geographically diverse practitioners of the regulated profession, and usually at least one member who is not of that profession (the consumer member). Board members are not paid anything for their services, but are reimbursed for their travel expenses for attending Board meetings or conducting other Board-related business. Most boards meet three to eight times per year, depending on their workload, and usually meet at a different location in the state each time. This practice gives more people the opportunity to attend board meetings. Some boards, however, like the Florida Real Estate Commission (FREC), meet only at their headquarters. FREC is headquartered in Orlando.
Each professional board is responsible for promulgating rules to interpret and implement their respective practice act. Each board certifies applicants for licensure, once the applicant is determined to have met the statutory criteria for licensure. Perhaps the most challenging of the boards duties is to determine discipline for licensees who have violated the applicable statutes or rules. The process by which that is accomplished will be set forth in chapter three. Professions regulated by state agencies without the use of professional boards are governed by rules promulgated by the agency (rather than a board composed mainly of members of that profession).
Here is a reasonably current and thorough listing of the professions which are regulated within the State of Florida, the chapter number by which they are regulated (practice act), and the agency that is responsible for the regulation of that profession.
Listed numerically by governing Practice Act
Laws Applicable to Most Professions
Chapter 455, Florida Statutes
Chapters 455 and 456, Florida Statutes, are the chapters that authorizes the DBPR and DOH respectively, and enumerate their general powers and duties with respect to professional regulation. These chapters set forth the intent of the legislature for regulating professions, part of which is to allow qualified professionals to practice their professions without undue restriction. These chapters go on to authorize DBPR and DOH to promulgate rules necessary to carry out their respective functions.
The Departments are also authorized to appoint an Executive Director for each board, subject to the approval of the board. The Departments are required to submit biennial budgets to the legislature, which are then approved by the legislature. This legislative approval is required even though the funds to operate the Departments and the boards do not come out of general revenue, but are instead generated from the licensing fees set by the boards. All licensing fees collected by the Departments are deposited in trust accounts, and may be spent only as authorized by the legislature.
Chapters 455 and 456 set forth generally how the boards are to operate. This includes annual election of officers, determination of a quorum (51% of the board members), reimbursement of per diem up to $50 per day for board business, and how boards may deal with one another when inter-board conflicts develop. This can be a significant problem between boards with contiguous or overlapping interests, e.g., between the boards of architects and engineers or optometrists and opticians, or nursing and pharmacy, etc.
Chapters 455 and 456 establish the liability and accountability of board members. Every board member is accountable to the Governor, and only the Governor may remove a board member from office. Board members are exempt from civil liability arising from their actions on the board, and if sued, must be defended at state expense. Chapters 455 and 456 set forth the general licensing and license renewal requirements applicable to each of the covered professions. These include the right to charge licensing and renewal fees, and to require an examination prior to issuance of a license. The Departments and the boards are authorized to use national examinations, if they so choose. Any applicants who fail an examination are entitled to an examination review at a cost not to exceed $75.00. Theft or unauthorized reproduction of a licensing examination is a felony.
Chapters 455 and 456 set forth the right of foreign individuals to obtain licenses under circumstances which compensate for language difficulties or problems in verifying training and experience credentials.
Every board is entitled to be provided with legal services from the Department of Legal Affairs. These legal services are not to be confused with the services provided by the attorneys within the Departments. The services provided by the Department of Legal Affairs are advice, guidance, order drafting, rule drafting, and other generally non-adversarial functions. The Assistant Attorney General assigned to the board (from the Department of Legal Affairs) usually sits next to the board chairperson at the meetings, and offers advice and counsel upon request of any board member. The Department attorney, however, is generally segregated from the board members at the meetings, and acts as a party litigant before the board. In drawing a parallel to the civil court system, consider the board to be the judge, the DBPR attorney to be the prosecutor, the licensee (or his/her attorney, if represented) the defendant, and the Assistant Attorney General, the attorney who is not directly involved in the litigation, but is there for the purpose of advising the judge.
Recently, the legislature has provided that boards may hire private attorneys to prosecute violations of their practice acts, if they are not satisfied with the service of the government attorneys. Also, a number of boards have switched the roles of the DOH attorney and the Assistant Attorney General, so that the DOH attorney is the Board advisor and the Assistant Attorney General is the prosecutor.
Another anomaly is in license denial cases. If the board decides for some reason not to issue a license, the applicant must be given the opportunity for a hearing. If the matter proceeds to a formal hearing (described more fully in chapter two), then the Assistant Attorney General becomes the party litigant (on behalf of the board), and as such may not advise the board on that case. Accordingly, the only other attorney normally present in the room, the DBPR attorney, must change roles and become the advisory to the board for that case. As you can readily see, this procedure is fraught with unfairness, but so far, no one has thought of a better way to handle license denial cases.
One of the most important sections found in Chapters 455 and 456 is the provision granting DBPR and DOH, respectively, the right to administer oaths, take depositions, and issue subpoenas. Since an executive agency only has the power granted to it by the legislature, without this provision the Departments would not have the tools necessary to carry out their functions. The power to issue subpoenas is how the Departments are able to carry out their investigative function. Chapters 455 and 456 set forth how the Departments are to handle complaints. A detailed discussion of these provisions is included in chapter three. A person who makes a complaint to DBPR and DOH is protected from civil liability unless it can be shown the person acted with malice or bad faith.
Chapters 455 and 456 include a brief itemization of the types of violations for which a board may take disciplinary action against a licensee (or refuse to certify an applicant for licensure). These lists were provided by the legislature for general guidance to the boards, and the listed violations are rarely cited as reasons for taking disciplinary action. Chapters 455 and 456 require all boards to promulgate disciplinary guidelines by rule, which are supposed to give the public and the regulated professionals some clue as to what disciplinary action will be taken for specific violations. Although most boards have paid lip service to this provision, the guidelines are so broad and vague as to be of questionable value.
Chapters 455 and 456 make knowingly giving false information to the Departments in order to obtain a license a felony. The Departments are authorized to verify all information provided by an applicant for licensure. Different boards go to different lengths to do this, but lying about credentials or experience on an application for a professional license is a serious crime, in addition to being grounds for license denial.
Another provision of Chapter 456 deals with medical records. Section 456.057, Florida Statutes, sets forth the definition of medical records, and how they must be handled. Medical records include the examination and test results, and reports, of any healthcare professional who conducts examination or treatment of a person. This includes x-rays and insurance paperwork. A person’s medical records are to be kept confidential, except under very limited circumstances. Copies of a person’s medical records must be provided to a patient (or their agent or lawyer) upon written request, and at no more expense to the patient than the actual duplicating charges. This is the law, even if the patient owes the professional for the treatment. The only exception concerns psychiatric records, which is beyond the scope of this course.
A person’s medical records may not be furnished to anyone other than the patient (or his/her agent or lawyer) unless the patient has waived confidentiality. Such a waiver usually occurs by the use of a written patient medical record release. For example, insurance companies generally have their insured sign such releases as a matter of routine. Plaintiffs in civil suits in which their physical condition is an issue are generally required to waive their medical record confidentiality. When a patient makes a complaint to AHCA about the treatment he/she received from a licensed healthcare professional, that person is required to sign a patient medical record release.
Like most rules, there are exceptions to the requirement that patient records are to be kept confidential absent a patient release. The main exception is that DOH may obtain copies of patient records without a release if it has reason to believe that the patient received below standard care, or inappropriate controlled substances were prescribed. Records so obtained by DOH are kept confidential, except that they will be provided to the subject of the investigation for review by the subject and his/her attorneys and experts.
Chapter 456 also authorizes DOH to collect, maintain and distribute “practitioner profiles” on healthcare licensees, which includes information regarding any disciplinary actions against the licensee. This information is available for public inspection and copying at DOH headquarters and on the Internet.
There is a provision in Chapter 456 that no applicant to DOH for a license shall be licensed, if that person has committed sexual misconduct in any jurisdiction, or has had a professional license disciplined (including license surrender) in any jurisdiction, based upon allegations of sexual misconduct. Florida has established a “Zero Tolerance” policy toward professionals who take advantage of their privileged status by committing sexual misconduct with a patient or client.
Professional licensees not covered by Chapters 455 and 456 have their own statutes and Rules, copies of which may be obtained from the regulating agency for that profession. The specific criteria for licensure or license discipline may vary, but the basic procedure is essentially the same for all professions (except attorneys).
Chapter 120, Florida Statutes
The processes that are to be used in relations between any state agency, and the persons or entities regulated by the agency, are set forth in Chapter 120, Florida Statutes, the Administrative Procedures Act (APA). Those procedures apply to DBPR and DOH, as well as most other state agencies. The legislative purpose for the APA is to provide a uniform system of “due process” to any person who is or could be substantially affected by agency action. For example, if the DBPR wants to revoke the license of a real estate broker because of fraudulent transactions, that the broker has the right, upon request, for a “formal hearing” pursuant to the provisions of the APA.
The APA sets forth the steps which must be taken by a government agency prior to adopting rules. The circumstances under which a rule must be adopted are also set forth. Generally, any time an agency adopts a policy of general applicability, it must do so by rule. In the rule adoption process, copies of the proposed rules are also set forth. Generally, any time an agency adopts a policy of general applicability, it must do so by rule. In the rule adoption process, copies of the proposed rules are published in a newspaper called the Florida Law Weekly, and any interested person is allowed to participate in the rulemaking process. If the agency cannot please all of the affected persons, it may still attempt to adopt the rule, but those persons who wish to do so may file a formal rule challenge. Most agencies attempt to work with parties who will be affected by a proposed rule in order to reduce the time and expense of litigation.
Rules that have been adopted in the past may likewise be challenged, but the grounds for invalidating an existing rule are somewhat more restrictive.
The provisions of the APA which most directly affect a professional licensee deal with the types of hearings to which a licensee may be entitled. If an agency takes, or is about to take, some type of action that affects a person’s substantial interests (such as a license suspension), the APA affords the affected person the right to a hearing. If the agency and the affected person cannot agree on the relevant facts of the case, then the person is entitled to a formal hearing. In most cases, this type of hearing is held before a Division of Administrative Hearings (DOAH) Administrative Law Judge (ALJ), formerly referred to as “Hearing Officers”. DOAH Administrative Law Judges are lawyers with administrative law backgrounds. They are, in effect, professional judges. They are paid by the state, but they are not normally predisposed in the state’s favor on cases. In a formal hearing, the ALJ listens to the evidence presented by the agency and the affected person, and then renders a written recommendation order in the case. The recommended order is then sent to the agency involved for adoption as a final agency order. There are circumstances in which an agency may make changes to the recommended order of the hearing officer, but those circumstances are rather narrow.
If the affected person and the agency do not disagree about the material facts of the dispute (i.e., the dispute is about the law, or application of the law to the facts), the type of hearing to which the affected person is entitled is called an informal hearing. Informal hearings are generally held before a board, or an employee of the agency where there is no board, and the agency renders a final order based upon the evidence presented at the informal hearing. For obvious reasons, informal hearings are generally “won” by the government agency involved.
The APA also sets forth how an agency may proceed under emergency circum-stances. If delay of an agency action would cause danger to the public health, safety, and welfare, then the agency may take action in advance of affording a hearing to the affected person. In such cases, however, the agency must afford the affected person, upon request, an immediate hearing. Failure to provide a hearing within a very short period of time can result in the action of the agency being set aside.
The APA also provides certain procedural safeguards to holders of licenses issued by the state. One of those safeguards is that no license can be revoked, suspended, annulled, or otherwise taken away unless the licensee has been served with a written complaint setting forth the reasons for such action (except under emergency conditions as described in the preceding paragraph).
Chapter 119, Florida Statutes
Chapter 119, Florida Statutes, is commonly called the “Public Records Act.” It states that all records of all state agencies (unless specifically exempted by statute) are open to the public. During normal business hours, any person, for any reason, may inspect the public records of any state agency. The person may also obtain copies of those records at no more than actual copying costs. The agency must respond to requests for copies within a “reasonable time.” If the agency fails to respond in a reasonable time, or simply ignores the request, the person can bring an action in circuit court to force the agency to comply, and also collect the costs and attorneys fees for having to file the action. Under the law, the person requesting to see the public record does not have to disclose the reason for making the request, and an agency may not refuse the request because it does not consider the reason for the request to be proper. Courts have not specifically defined a “reasonable time” since different circumstances might dictate different response times. In most cases, however, where the records are readily available to the agency, and not voluminous, two weeks is a “reasonable” amount of time.
Some records are, by statute, excluded from the definition of public records. Examples of records that are not subject to the public records act are active criminal investigations, criminal intelligence, most state licensure examinations, patient medical records, and DBPR/DOH investigations in which no probably cause has been found. This last exception will be discussed more fully in chapter three.
Professional Practice Acts
Professional practice acts are those specific laws that apply to each regulated profession. For example, Chapter 457 is the practice act for acupuncture; Chapter 458 is the practice act for medical doctors; Chapter 460 is the practice act for chiropractors, etc. A complete listing is contained in the introduction to this course.
Although each of the practice acts is unique, they generally share the same format. Usually the practice act will define the particular profession, and list any exemptions. For example, the practice of medicine is generally the examination, diagnosis, and treatment of human disease or injury, but a person rendering medical assistance in an emergency is not “practicing medicine.”
The practice acts set forth the number of board members, the criteria for board membership, the length of terms, and various duties of the board. The practice acts generally contain an authorization for the boards to promulgate rules to carry out the directions of the practice act. Without this specific authority, the boards would not have the power to make the rules of their professions.
The practice act sets forth the specific requirements for licensure in each profession. This generally includes the education and training required, any experience or internship requirements, and the types of testing required. Some practice acts allow licensure by endorsement from another state, but these provisions in Florida are rather strict in order to guarantee that only truly qualified people obtain licensure in Florida. This strictness can be very problematic to out-of-state professionals who may be qualified in fact, but cannot obtain Florida licensure because of some technical problem with their training or experience. Anyone desiring to obtain licensure in Florida by endorsement needs to be extremely familiar with the statutes and rules on this subject.
The practice acts set forth the different types of licensure within each profession. Many of the professions offer two or more types or levels of licensure. The practice acts set forth the requirements and timing for license renewal. Most professional licenses are renewable every two years, with payments of a renewal fee and proof of having completed the required continuing education. The acts also set forth the requirements of an inactive license, and how long a license can stay inactive before it lapses completely. (An inactive license can be renewed upon payment of a reactivation fee and proof of having completed the required continuing education. A lapsed license, however, may not be renewed; a new application is required and perhaps even re-examination.)
The practice acts all contain criminal penalties for unlicensed practice of the regulated profession, or for using the words (or initials) which might mislead the public into thinking a person is licensed when they are not. For example, it would be a crime for a person, not licensed as a medical doctor, to use “M.D.” after his or her name.
In most of the practice acts relating to healthcare, there is a provision defining sexual misconduct in the practice of that particular profession. Sexual misconduct in any profession is strictly prohibited. In all of the practice acts, there is a section devoted to all the types of activities that would authorize disciplinary action against the licensee by the department. Common examples are: Obtaining a license by fraud, conviction of a crime related to the practice of the profession, false advertising, disciplinary action against a license in another jurisdiction, making or filing a false report, failing to practice the particular profession in accordance with minimum standards of performance, employing a trick or scheme in the practice of the profession, being unable to practice the profession with safety due to drug or alcohol abuse or mental/physical problems, etc.
If a board finds a person guilty of any of these violations set forth in the disciplinary section of the practice act, it can impose discipline in the form of a letter of reprimand, a fine, probation, license suspension, and even revocation. If the person found guilty is not yet licensed, the board can refuse to license the person, or license the person subject to a fine, probation, or other restriction.
Most of the practice acts relating to healthcare have a provision dealing with impaired practitioners. It is the legislature’s intent to afford any professional who has problems with drugs, alcohol, or mental conditions, to be able to participate in a program designed for assistance and rehabilitation. This provision is extremely helpful to the licensed professional who may have a substance abuse or mental problem, and it is sometimes, but not always, used as a substitute for the disciplinary process, saving the Department and the board time and money.
The Disciplinary Process
In Florida, as in all 50 states, a person’s professional license is considered a valuable property right. Once a professional has obtained a license to practice his profession, the state cannot take it away or subject the license to any type of discipline without affording that person due process of law. A professional under Florida law enjoys more due process protection of his/her professional license than in most other states. Last year in Florida, there were over 25,000 complaints filed against Florida licensed professionals, which resulted in over 3,500 administrative complaints being filed. All of those administrative complaints were handled in accordance with the statutes and rules applicable to the disciplinary process. The purpose of this chapter is to describe the way in which Florida law requires the disciplinary process to work. Figure A at the end of this chapter is a simplified diagram of how the process flows, at least with respect to cases against persons licensed by DBPR. An almost identical process is used by DOH. Other state agencies may have their own particular systems, but they all allow for essentially the same due process protections for the licensee.
WHO can file a complaint against a professional license? Anyone. An individual, partnership, corporation, governmental entity, professional society or association, institution, as well as the DBPR, DOH and AHCA may file a complaint. The person or entity filing the complaint is routinely identified as the “complainant” in the process.
WHAT type of complaints may a complainant file? Anything. The complainant can report anything which they believe is a violation of ability, performance or skills to practice in the chosen profession. The types of complaints cover a broad area of topics: price of goods and services; workmanship; questionable actions by the practitioner; sexual misconduct; over-billing for services; code violations; financial mismanagement; over-prescribing of medications; improper or untimely delivery of goods or services; or nearly any other topic imaginable.
WHEN can a complainant file a complaint? Anytime. There is no “statute of limitations” applicable to administrative actions against professional licensees. A complainant may file a complaint without regard to when a possible violation or improper action occurred. Timing of filing a complaint may occur before, during, or after the professional renders goods or services.
WHERE do the complaints go after receipt? Complaints are routed through the DBPR or DOH to either the Division of Real Estate (real estate professionals only) or primarily to the Division of Regulation (all remaining licensee professionals.) Each division utilizes a Complaint Section to review, analyze and respond to the complaints received. Regardless of the format, all complaints are condensed and transferred onto a standardized complaint form (Uniform Complaint Form) to assure consistency in document processing.
HOW is a complaint filed? Complainants may lodge a complaint against any state regulated professional by mail, by telephone, or in person. The Florida Department of Business and Professional Regulation and the Department of Health both provide a standardized form for processing; however, any written correspondence will be acceptable.
In addition to complaints filed by individuals, there are other sources of complaints pursuant to specific statutes. For example, any time a patient dies unexpectedly in a hospital setting, the hospital is required to report that fact to its licensing authority (DOH), which, in turn, provides that information to the complaints section for investigation. Prior to suing a physician for medical malpractice, a plaintiff must serve upon the physician a letter of intent , a copy of which must also be provided to DOH. Whenever a peer review group or a hospital takes disciplinary action against a licensee, that information must also be turned over to DOH for investigation. Whenever someone makes a claim under Florida’s NICA law (Florida’s no fault injured infant law), a copy of the petition must be provided to DOH for investigation. All of these sources result in investigations.
Upon receiving a complaint against a regulated professional, an analysis of the complaint determines the initial disposition and necessary actions. A complaint must meet two (2) critical elements: (1) Legal sufficiency; and (2) Jurisdiction.
Legal sufficiency means “if the allegations of the complaint are true, would it constitute a violation of law or rule.” Generally, this analysis may require additional information or support documentation from the complainant. In those instances, where added information is necessary, the Complaint Section may utilize further written requests or telephone contact with the individual complainant. If the complaint alleges an act which is not a violation of the licensed professional’s practice laws or rules, the complaint would not be legally sufficient. The complaint must allege a violation of law or rule of that profession. As an example, if a complaint alleges that a professional licensee lacked good personal hair styling or unfashionable clothing, these allegations are not violations of any law or rule. Alternatively, if a professional licensee fails to display their professional license in the office or clinic (as required by law/board rule), this allegation would meet the legal sufficiency test.
Jurisdiction is defined within each practice act, and usually means that the subject of the complaint must either be a holder of a license to practice a regulated profession, or an applicant for such licensure. If a complaint is received regarding questionable actions by an insurance agent, a school teacher, a financial institution, or some other profession, not under the jurisdiction of DBPR, DOH or their respective professional boards, the complaint would be considered insufficient for lack of jurisdiction. [NOTE: In the noted examples, upon receipt of complaints which are non-jurisdictional to the DBPR, DOH or other agency, the complaints are promptly routed to the appropriate governmental agency for action.]
Upon finalizing the initial review, for purposes of legal sufficiency and jurisdiction, the Standards of Acceptance criteria have been achieved. As noted above, the issue of jurisdiction is more easily determined by the initial analysis; however, the consideration as to legal sufficiency requires the complaint analyst to qualify what the complainant is offering. Unless the complainant is familiar with the Florida Statutes or professional Board Rules, specific cites are usually not provided. Instead, the complainant tries to offer statements or general comments to reflect their grief or concerns which must be translated into a specific professional law or rule category.
All complaints which fail to meet the “Standards of Acceptance” (those non-legally sufficient and non-jurisdictional) are closed by written correspondence to the complainant with a general statement of the reasoning for closure. Those complaints which are acceptable are reviewed by either an investigator or an attorney.
As a method of records management, complaints are assigned a numerical reference number, coded by type of allegation, and organized into a case file folder. Further, by utilizing an automated tracking system, the complaints are logged into a computer system for further reference and monitoring. From this point forward, the complaint identifies the individual filing the action (name, address, etc.), together with the following information: Possible violation citing; date of receipt; manner of receipt; source, and other general data. The complaint file also reflects the name of the professional (the “subject”) together with appropriate licensing information (i.e., license number, name, address, profession, etc.)
It is important to remember that all complaints are CONFIDENTIAL and not subject to the Public Records Law, Chapter 119, Florida Statutes. The complaint case remains confidential throughout the review process until: A. Ten (10) days following the decision of the respective Probable Cause Panel of the Board. . . that probable cause is found to believe that a violation (of Florida Statutes or Board Rules) has occurred; or
B. the subject (professional licensee) of the complaint waives his/her privilege of confidentiality.
Should any individual (whether a private citizen, licensee, newspaper reporter, etc.) inquire to the DBPR or DOH as to whether a complaint has been filed against a professional licensee, the Department or Agency may not affirm or deny any pending confidential information. Under certain conditions, the subject of an investigation, however, may be provided with copies of these confidential documents.
Most investigations of complaints received by a regulatory agency are performed by local field office investigators, normally within the geographic location of the complainant and the subject of the complaint. Complaints are routed to the respective local investigative field office and assigned to an investigator who possesses industry specific training in the respective laws and board rules governing the subject licensee.
The mission of the investigative process is fact-finding. The investigative process revolves around data and fact collection, interviews of the involved parties of the complaint (i.e., complainant, subject and witnesses), and review of other sources (patient records, court records, county/city records, etc.) which provide evidence as to the events and circumstances related to the complaint. Additional investigation services may include service of subpoenas, delivery of document evidence, and proper handling of evidence storage (chain of custody).
Complaint investigations are performed utilizing a variety or combination of methods and sources. The following investigative methods are presented as informational. However, a combination of the noted methods may be warranted, depending upon the circumstances and type of complaint being investigated:
- Desk investigation. A complaint investigation may be accomplished through correspondence, document collection, and telephone contact with the parties involved. Use of correspondence and standard forms also enables the investigator to collect the pertinent information quickly. This method may likely be used when parties of the complaint are not easily accessible (e.g. out of state) for personal interview. Also, in those complaints where documents are the primary evidence, the desk investigation is more efficient than the field investigation.
- Field Investigation. Generally a field investigation is performed in one of two formats: (1) Restricted, or (2) Full.
A restricted investigation may only require minimal evidence collection or service, possibly at the direction of the assigned prosecution attorney, and is commonly referred to as a Supplemental Investigation. A Supplemental Investigation may be requested during initial review by the assigned prosecution staff for preparation for probable cause panel review, or possibly in preparation for a formal hearing. The investigative needs of the department legal staff are specific and limited.
A full investigation consists of a complete fact-finding investigation. The primary elements for this method center on the basic ive W’s quest (who, what, when, where, why, and possibly how) of the investigation process. Facts are collected through personal interviews, document collection and assembly, research and advisement by other sources, selective use of desk investigation methods (noted above), and production of a formal investigative report. Investigative reports consist of all facts and data collected which specifically relate to the complaint allegations. The investigator’s report is based upon fact, not opinion of the investigator. Copies of evidence or exhibits are a part of the investigative report (when applicable). A well written investigative report is concise, contains the elements of the offense (allegation), renders answers to the five W’s quest, and is supported with relevant evidence.
Inspection. Inspection or physical review of a facility, clinic, office or pertinent establishment is often used as part of the investigative process. Document review may be required to inspect records, papers, court orders, etc., which relate to the complaint.
Some professional boards mandate that routine inspections shall be performed by the DBPR, DOH, or AHCA, within the prescribed time requirements. A routine inspection activity is s form of passive enforcement which may be a requirement to gain a license or to maintain an active license. During the routine inspection, the inspector/investigator utilizes a standard checklist approach in accord with predefined board rules and directives. Professional licensees are appraised of the routine requirements (e.g., required equipment, sanitation handling, license display, etc.) as a part of their overall licensing requirements. Use of a standard checklist allows for consistency throughout the profession as to the mandatory requirements of licensure. If, during a routine inspection, an infraction or violation of applicable law or rules is found, a citation or complaint may result.
Expert consultant assistance. As previously noted, agency investigators are trained in the specialty profession of the subject licensee and are familiar with the general practice standards defined by Florida Statutes and respective board rules. However, experts (active licensed practicing professionals) who possess specialized training may be needed to review the complaint allegations as to whether the licensee acted in accordance with the minimal standards of his profession. The expert consultant may be called upon to review documents, drawings, financial records, patient records, or other support information relevant to the subject licensee’s conduct. Use of expert consultants aids the investigative process by profession-specific review and supplements the overall fact-finding investigation activity. The expert consultant may later be used by the prosecuting attorney to testify as an expert in the formal hearing.
Peer review committee process. Certain professions use local or facility relationships in the delivery of healthcare services (i.e., hospital or clinic privileges, association membership, etc.). Many of those organizations perform internal evaluations of the performance of their members. This is called peer review. Peer review organizations sometimes take disciplinary action against their members. When disciplinary action or restrictions of practice are imposed upon a DBPR or DOH licensee by a peer review organization, this information (which by law must be reported) may be relevant to a complaint. [Note: Peer review proceedings may be confidential and not open to inspection by the general public. If documents from a confidential peer review action are obtained by an agency they are sealed # and not subject to disclosure to anyone, absent a waiver or court order.]
Other reporting systems. Investigative sources and information systems from local, state and federal government agencies which report actions against professionals are an important investigative tool. These systems may include: Hospital disciplinary actions; local government citations; federal restrictions of practice; other documented reportings. When the reporting system reflects information which is relevant to the particular licensee, an investigator may obtain copies of the information and include it in the investigation report. Also, if a Florida licensee holds licenses in other states, and a report of discipline taken by an out-of-state regulatory licensing board is obtained, this may warrant action by Florida.
After the investigative report is completed by the investigator, it is reviewed by the field investigations office manager to assure completeness and compliance with DBPR or DOH standards. The investigative report is then routed to DBPR or DOH Legal Section for review and action.
Rights of the subject of an investigation. Under Florida law, a professional license holder has the same constitutional right against self-incrimination as a criminal defendant. In plain English, a licensee cannot be compelled to speak to an agency investigator concerning an investigation of the licensee. No disciplinary action can be taken against a professional license holder solely on the basis of refusal to talk to or cooperate with the agency. There is, however, a very important distinction between the right against self- incrimination and protection of documents which are required by law to be kept by the licensee. The required records # doctrine is that a licensee must furnish, upon appropriate request, any documents in the licensees possession which are required by law (or rule) to be kept by the licensee. For example, if the complaint is that a physician performed surgery while under the influence of alcohol, the physician cannot be compelled to talk to the investigator about the incident, but upon subpoena, the physician would be required to turn over the medical records he made of the procedure.
During the investigative stage of a complaint, a subject has the right to be represented by an attorney. Since this often happens, the various boards do not impute any wrongdoing to the subject just because of an attorney’s involvement.
- Limitations upon the authority to investigate. The state’s authority to investigate is not absolute. The general rule with respect to DBPR and DOH is that they may not investigate a matter unless it has received a legally sufficient written complaint, within the Department’s * jurisdiction, which is signed by the complainant. Neither DBPR nor DOH is authorized to investigate anonymous complaints or complaints from confidential informants unless, after preliminary inquiry, it appears to be valid and substantial. The Departments and the Agency are simply not authorized to investigate a licensee because someone within the Departments or Agency feels that the licensee might be committing a violation.
- Advance notice to the subject. Unless the complaint is of some type of criminal activity, the subject of an investigation must be notified in writing, and in advance of the investigation, as to the intent of the Department or AHCA to investigate, and the reason for the investigation. The notice does not, however, have to notify the licensee of his constitutional right against self-incrimination.
The Departments each have a Legal Section which serves as the public advocate for the citizens in prosecution of license disciplinary cases before the various boards.
The Legal Section is composed of prosecution (trial) attorneys and legal support staff. The section operates much like a local state attorney’s office, except the work involves administrative prosecution under Chapter 120 (Administrative Procedures Act) rather than criminal prosecution. Upon receipt of a completed investigative file, the case is assigned to a prosecution attorney who is versed in the laws and board rules and familiar with the disciplinary standards to review the case. The responsible attorney reviews the file, then prepares a recommendation as to proper action. It is at this point that probable cause is determined.
The determination of whether or not probable cause exists is normally made by a probable cause panel PCP). A probable cause panel is composed of two or three members of a board who review all investigative files (and the recommendation of the agency attorney) and make the probable cause determination. Probable cause panel members may not sit as board members on the final disposition of any cases they reviewed as probable cause members. If a profession does not have a board, the probable cause determination is made by the agency. Also, any board may delegate the probable cause determination to the agency, if it so desires. Probable cause panel activities and review are held in confidence and are not open to the public. The confidential meeting of the probable cause panel consists of: (1) the probable cause panel members; (2) the agency’s prosecuting attorney; (3) the board’s legal advisor; and (4) professional board staff to record the actions of the meeting. The primary responsibility of the probable cause panel is to determine whether the evidence contained in the investigative file shows a violation of the professional’s practice laws or board rules. In certain instances, the probable cause panel may not be able to make a determination, and may request additional information or possibly call for an expert consultant’s assistance on technical matters which require clarification. In professions which do not have a probable cause panel, the same determinations noted above are accomplished by the agency’s prosecuting attorney. Some professional boards allow the accused licensee to attend and participate in the probable cause panel discussions, e.g. the Board of Accountancy. Most professional boards, however, do not allow the licensee to attend or to speak at the PCP meetings.
In the event that the probable cause panel finds no probable cause, the case is closed and maintained as a confidential record (unless the licensee has relinquished rights to confidentiality). The complainant and the subject of the complaint are informed of the decision of no probable cause. In some cases, where the issue of probable cause is a close call, the case can be closed with a letter of guidance. In those cases, by law, there is no finding of probable cause, the letter of guidance is not considered to be a disciplinary action, and the case remains confidential.
If the decision of the panel is that probable cause exists, it directs the prosecuting attorney to file an administrative complaint against the licensee. The administrative complaints are generally drafted in advance of the probable cause panel meeting, therefore delivering (serving) them upon the affected licensee (now called a respondent ) should be a relatively quick process. Unfortunately, because of overwork and under-staffing, the administrative complaints may not be mailed out to the respondents for several weeks. This can cause some problems since, as you will recall, ten days after a finding of probable cause, a case becomes public record. Public records are available to anyone who wishes to see them. Some newspapers and lawyers routinely review all new cases, looking for newsworthy items or potential clients. If the respondents have not yet received notification of the probable cause finding, they may first find out about it in the daily news or in a solicitation letter from an attorney.
The administrative complaint is a document which contains numbered paragraphs setting forth the facts involved in the violation, and the specific laws or rules which are alleged to have been violated. The administrative complaint should contain a date, or a period of time, during which the violation took place, and enough specificity to inform the respondent as to exactly what conduct the agency alleges violated the cited laws or rules.
The administrative complaint must be actually delivered to the respondent, or if that s not possible, the agency must try to find the respondent by the use of an investigator and advertising in a newspaper published in the area of the respondent s last known address.
When the administrative complaint is mailed to or personally served upon the respondent, it is accompanied by an explanation of rights form and an election of rights form. These forms are supposed to explain a respondents rights and allow the respondent to assert those rights in response to the administrative complaint. Over the years, however, through the revision process, those forms have developed some problems and are not entirely accurate or complete. A conference with a knowledgeable attorney at this point, prior to responding, is advisable.
Rights of a Respondent
There are several choices that a respondent may make upon receipt of an administrative complaint. The easiest choice, to do nothing, is the least advisable. Failure to respond to the administrative complaint in some fashion within 21 days of receipt may result in action being taken through a process called default. Most defaults result in suspension or revocation of the license.
The more appropriate response to an administrative complaint is to elect a hearing (formal or informal) or agree with the prosecuting attorney to a proposed stipulation to settle the case.
A professional licensee who has received an administrative complaint (respondent) has the right to a formal hearing. The main purpose of the formal hearing is to establish the facts of what really happened regarding the allegations in the administrative complaint. Just because the administrative complaint contains an assertion of fact, does not make it so. The burden is upon the agency at the formal to prove the factual assertions in the administrative complaint, and to prove them by clear and convincing evidence. To obtain a formal hearing, a respondent must simply respond to the administrative complaint within 21 days after receipt and state that he disputes the allegations of fact in the administrative complaint. It is not necessary for the respondent to affirmatively allege his or her version of what happened. The 21-day response time can be extended by the agency attorney upon request. In the absence of a response or an extension of time, however, the agency can proceed as it deems appropriate.
Once the agency receives a request for a formal hearing, it sends a copy of the administrative complaint and the request for a formal hearing to the Division of Administrative Hearings (DOAH), where the case is assigned to an Administrative Law Judge. The ALJ then schedules a formal hearing generally about two or three months in the future, in the geographic area most convenient to the respondent. Some formal hearings are accomplished by video-conferencing.
During the time before the formal hearing, both the agency and the respondent may participate in a process called discovery. Discovery is the process by which each party can try to find out about the other party’s case. During this time, for example, the respondent can find out the names and addresses of the agency?s fact and expert witnesses, and via subpoena issued by the ALJ, can take the deposition of any witnesses. A deposition is where the attorney setting the deposition can ask the witness questions about the case, under oath and before a court reporter. The court reporter records the testimony, which can then be typed and used at the formal hearing. The discovery tools available in a formal hearing are the same as those available in civil trials. The main difference is, that because license disciplinary cases are penal in nature (almost like a criminal case) the respondent cannot be forced to provide testimony. This is true both during the discovery process and at the actual hearing. In fact, a respondent does not even have to be present at the formal hearing (unless he is subpoenaed by the agency attorney).
The procedure utilized at the formal hearing is similar to that of a civil trial, except there is no jury. All of the fact-finding and conclusion of law are done by the Administrative Law Judge. Formal hearings take place in rooms that are set up much like a courtroom. In fact, when courtrooms are available, they are the preferred location of formal hearings. The ALJ sits where the judge would sit, and the Department or AHCA attorney and the respondent (and his attorney) normally sit at tables facing the hearing officer. There is a chair beside the judge’s bench in which the witnesses sit while testifying. There is also a court reporter present, who is arranged for and paid by the agency.
At the beginning of the hearing, the ALJ introduces him or herself and identifies the case. Normally he/she will inquire of the parties whether or not there are any preliminary matters, such as prehearing motions, or agreements between the parties, of which he should be aware or rule upon.
After those matters are taken care of, the agency is given the opportunity to present its case. It does this by calling witnesses and introducing tangible evidence. Every witness called to testify by the agency’s attorney is subject to cross-examination by the Respondent’s s attorney. Objections can be made by either attorney and must be ruled upon by the hearing officer. In presenting his case, the agency attorney must prove (by clear and convincing evidence) each element of the alleged violation. For example, the agency attorney must prove that the respondent was licensed at the time of the violation and is licensed at the time of the hearing (an agency would have no jurisdiction to take disciplinary action against the license of a person who is not actually licensed), the date or dates of the violation (to show that the violation occurred when the law alleged to have been broken was in effect), and that the respondent named in the administrative complaint is the same person that committed the acts about which the witnesses are testifying. Failure of the agency attorney to prove these facts will result in ultimate dismissal of the administrative complaint.
In standard of care cases (cases in which the respondent is accused of practicing his profession beneath the minimal standard of performance) the agency must prove its case through the testimony of an expert witness. Failure of the agency attorney to establish the standard of care alleged to have been breached will result in ultimate dismissal of the administrative complaint.
After the agency has presented all of its witnesses and introduced all of its evidence, it will rest. At that point, the respondent may (but is not obligated to) present his witnesses and offer his exhibits. Under certain circumstances, it might be tactically prudent for a respondent to rest without putting on any evidence. For example, if during the agency’s case, the agency attorney has forgotten to prove that the respondent was and is licensed, the respondent will probably win the case on that point alone, so why testify and be subject to cross-examination by the agency attorney who might realize his earlier omission and establish licensure through cross-examination? It does not matter that the agency had previously rested. At any point prior to the conclusion of the hearing, the ALJ will generally allow attorneys to correct such omissions.
After both sides have rested, the ALJ concludes the hearing. A decision, however, is not rendered at that point. What happens next is that the court reporter transcribes (types) what transpired at the hearing, and provides a copy of the transcript to the parties. Each attorney then has ten days (unless that time is extended) to draft and file with the ALJ a Proposed Recommended Order(PRO). A PRO is the document that contains the findings that the preparing attorney hopes the hearing officer will find. Once the ALJ receives the PROs from the parties, he normally has 20 days in which to draft and file with the agency the “Recommended Order.” The recommended order is the hearing officer’s decision in the case including the underlying facts and law which lead the hearing officer to his decision.
The recommended order is not the final decision in the case, however. Only the agency or board can render the final order in a license disciplinary case. In the case of a board, the recommended order is considered by the board, along with the transcript and exhibits from the formal hearing, and the final order is issued based upon that information. The board must accept the findings of the ALJ unless all the board members review the complete record, and find that there is no competent substantial evidence to support those findings, a situation which rarely happens. If the ALJ finds any violation, however, the board (or agency if there is no board) does have some discretion in whether to adopt the penalty recommended by the hearing officer or to change the penalty.
Prior to the final hearing before the board, each party is authorized (within 15 days after filing of the recommended order) to file exceptions with the board (or agency). Exceptions are statements indicating where the ALJ made errors in his or her findings, according to the attorney filing of the recommended order) to file exceptions with the board (or agency). Exceptions are statements indicating where the ALJ made errors in his or her findings, according to the attorney filing the exception. Prior to voting on whether or not to accept the recommended order as its final order, the board must consider and vote on each of the exceptions filed by either party. The final decision of the board (or agency) is not effective until it is reduced in writing (in the form of a final order ) and signed by the board chairperson (or agency head). This usually takes about a month after the final hearing.
An informal hearing is available to a respondent if he elects not to dispute any of the allegations in the administrative complaint (although he does not necessarily have to agree with them). An informal hearing takes place before the board (or agency if there is no board), and once the board (or agency) has decided that the undisputed facts in the administrative complaint constitute a violation of the statutes or rules as charged in the administrative complaint, the board (or agency) is free to impose whatever sanctions it deems appropriate.
This is a very risky option in a license disciplinary case, because if the licensee does not like the decision of the board or agency, there is little he or she can do about it at that point. If, during the course of an informal hearing, it appears that there are factual matters in dispute, the board must immediately terminate the informal hearing and direct the Department to send the case to DOAH for a formal hearing. When such a disputed fact becomes apparent, however, usually the respondent has already made admissions which could hurt him at the subsequent formal hearing.
The only advantages of an informal hearing are that it is fast and cheap. Compared to the value of a professional license, however, the risk associated with an informal hearing makes this option less appealing than a formal hearing or stipulation.
A stipulation is an agreement between the agency attorney and the respondent setting forth a penalty with which both the agency and the respondent can live. It is generally a compromise between what the agency would really like to see and what the respondent feels is appropriate. It is not always necessary for the respondent to make any admissions of wrongdoing to enter into a stipulation.
Once a stipulation is entered into, it is not effective until and unless it is approved by the board (or agency if there is no board). Stipulations are presented to the board, along with the investigative reports, for consideration by the board members. Normally the respondent is present when the stipulation is presented, and one of the normal terms of any stipulation is that the respondent will respond, under oath, to any questions posed by the board members.
If the board is convinced that the stipulation is a fair disposition of the case, it will vote for approval. Then, usually within 30 days, a final order is issued accepting and implementing the terms of the stipulation. The stipulation is the most widely used procedure in finalizing DBPR and DOH cases. There are, however, some problems with stipulations. The most significant problem is: What happens if the board rejects the stipulation? Although legally, the rejection of the stipulation places the respondent back in the same position, with the same rights as he had when he first received the administrative complaint, the practical effect is far different.
If you will recall, a licensee (subject or respondent) always has a constitutional right against being compelled to give any information to the agency. During discussion of the stipulation, however, the respondent is usually asked questions which illicit incriminating information. If, after a stipulation is rejected, the respondent requests a formal hearing, the burden on the agency will be much easier since the respondent has admitted, under oath, facts which the agency would otherwise have to prove.
Additionally, during the discussion over the stipulation, the board members will have all had the opportunity to review the investigative file (which might contain all kinds of irrelevant but prejudicial information about the respondent). After a formal hearing, the board is given only the formal hearing record to review in order to decide the case. Because all of the evidence in the record has been screened for relevancy to the charges contained in the administrative complaint, the record will not contain irrelevant but prejudicial material. If, however, the case had previously been presented to the board on a stipulation, and that stipulation was rejected, some of the board members are sure to remember some of