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Seven Things To Know When You Receive A Notice Of Investigation From The Department Of Health

Emergency Administrative Actions

DOH Subpoena for Records, Emergency Restriction Orders (EROs), Emergency Suspension Orders (ESOs), Orders to Show Cause, Order to Compel Examination, Order to Compel Medical Examination

The attorneys of The Health Law Firm represent physicians, dentists, nurse practitioners, other health professionals, health facilities and other types of professionals in emergency administrative actions brought against them by state and federal agencies.  For a more detailed explanation of other types of administrative hearings and proceedings in which we represent professionals and facilities, click here.

Emergency Suspension Orders (ESOs)

If you receive an Emergency Suspension Order (ESO), this immediately prevents your employment in the licensure field.  If you still have an active license in a different profession, you may be able to continue in that profession.  Also, if your emergency suspension is issued by a state agency, it will usually only apply to working in that state.  If you have a license in a different state, you should be able to work in the other state.

Rulings of courts in Florida have made it much more difficult for a state agency such as the Department of Health (DOH) to obtain a complete suspension of a license, since this completely terminates the licensee’s ability to work or produce income.  Therefore, we are seeing more Emergency Restriction Orders (EROs), issued instead.

When you are served with an ESO, it should include your appellate rights advising you of your right to appeal the Order to a District Court of Appeal.  You may have choices as to which District Court of Appeal to file with.  This is an issue which you should discuss with your attorney since there may be an advantage according to the district in which you choose to appeal.

However, an appeal of an ESO is not always the best course of action.  Appeals of any kind are complex, time-consuming, expensive and may take time to resolve.  You may be able to have the agency lift the ESO or you may be able to get an expedited hearing on the ESO before an appeal would be decided.  This is a matter which you should discuss with an experienced administrative or health lawyer.

The lawyers of The Health Law Firm have experience in appealing ESOs, in filing motions to have suspension lifted and in filing petitions for expedited hearings on the ESO.  An appeal does take a lot of time to prepare, so contact us as soon as you are aware of an ESO.

Orders to Show Cause

Sometimes an administrative agency or a court will order a licensee to do certain acts or produce certain evidence in connection with an agency investigation or proceeding.  The actions that can be taken to defend a licensee depends on the agency, the court and whether the proceedings are federal or state.

The attorneys of The Health Law Firm have experience in responding to Orders to Show Cause, including those filed by the Drug Enforcement Administration (DEA), state agencies and courts.  Contact us immediately as the time to respond is usually very short.

Order to Compel Examination/Order to Compel Medical Examination

Sometimes an administrative agency or a court will order an individual professional to undergo a medical examination to determine whether there is impairment due to a physical or mental disease or if there is alcohol or drug addiction, impairment or abuse.  In many cases, a state agency may be attempting to compel the professional to go into an impaired professionals program such as the Professionals Resource Network (PRN) or the Intervention Project for Nurses (IPN).

For additional information and opinion on the Professionals Resource Network (PRN), click here, and for the Intervention Project for Nurses (IPN), click here.

In many instances the state agency may not have the legal authority to actually enforce such an order.  You may be able to file an objection to it or submit evidence to the authority seeking to compel the examination to show that it is unnecessary.

Even if you decide to agree to the examination, understand that not all evaluators are the same.  They come from different backgrounds with different training and because of their prior experiences they may have certain biases or prejudices.  We may have had experience with certain evaluators and may be able to help steer you away form one who may not be appropriate for your situation.Contact us at the earliest opportunity to assist and advise you on these issues.

Emergency Restriction Orders (EROs)

Emergency Restriction Orders (EROs) usually only restrict certain activities that the licensee is otherwise authorized by law to perform.  The licensee is still authorized to perform all other functions that a licensee is authorized by law to perform.  The same considerations as discussed above under Emergency Suspension Orders apply here.

It is more difficult to have an appeal court or an agency reverse an ERO, because the licensee is usually still allowed to perform certain functions of the license.  However, if the restrictions are too severe, the ERO may actually amount to a complete suspension and may be attacked on this basis.

For a more detailed explanation of other types of emergency representation we may be able to provide to professionals and facilities, click here.

DOH Subpoena for Records

Many different agencies (mostly federal) have the authority to issue investigative subpoenas.  Sometimes this is an indication that there is a criminal investigation or civil false claims act investigation underway.

However, some state agencies, such as the Florida Department of Health (DOH) do not have independent enforcement authority for such subpoenas.  You may be able to file an objection to it or submit evidence to the authority seeking to compel the examination to show that it is unnecessary.  In the face of a valid and timely objection, the DOH would have to file court proceedings in the circuit court where the licensee lives, in order to obtain enforcement.

You should not just assume that you are required to produce the records.  You should not assume that the patient desires to have his or her medical records released or used.  In some cases where we have represented physicians, the patient has written a letter to the physician requesting that the patient’s record not be released to the DOH investigator.  Consult experienced legal counsel on these issues, preferable a health lawyer.

The Health Law Firm attorneys have successfully fought these types of enforcement action at the agency level and in court.

Our attorneys can work with your insurer to defend you or represent you in your case.