By George F. Indest III, J.D., M.P.A., LL.M. Board Certified by The Florida Bar in Health Law
If
you are scheduled to appear for an informal hearing before the Florida
Board of Medicine, there are a number of important facts that you will want to
know in order to be properly prepared. This article will cover many of
them.
The Limited Circumstances for Informal Administrative Hearings.
First, you should understand that you
will only be at an informal hearing in which you will appear before the
Board of Medicine itself for a very limited number of reasons.
These include the following:
1. If you completed an
election of rights (EOR) form and agreed that you did not intend to
dispute any material facts alleged against you from the administrative
complaint (AC) in the case.
2. If you entered into a settlement
agreement (or "stipulation") (similar to a plea bargain in a criminal
case) in which you agreed to accept discipline against your license.
3.
You failed to submit any election of rights (EOR) form and failed to
file a petition for a formal hearing in a timely manner, and, therefore,
you have waived your right to a formal hearing.
There are a few other circumstances in
which there may be an informal hearing before the Board, such as motions
to modify a final order, motion to lift a suspension of a license,
appearance in accordance with an earlier order, petition for a
declaratory statement, or other administrative matters. This article
only discusses those directly relating to disciplinary action as
indicated above.
What an Informal Administrative Hearing Is Not.
1. An informal administrative hearing is not
an opportunity for you to tell your side of the story. You have agreed
that there are no disputed material facts in the case. Otherwise, you would not
be at an informal hearing.
2. An informal administrative hearing is not
an opportunity for you to prove that you are innocent of the charges.
You have agreed that there are no disputed material facts in the case or
you would not be at an informal hearing.
3. An informal administrative hearing is not
an opportunity for you to introduce documents or evidence to show that
someone else committed the offenses charged and you did not. You have
agreed that there are no disputed material facts in the case or you
would not be at an informal hearing.
4. An informal administrative hearing is not
an opportunity for you to argue that you should not be in the board's
impaired practitioners program (either the Professionals Resource
Network (PRN) or the intervention Project for Nurses (IPN)) because you
have completed a different program or that you do not have a problem.
These are the only programs recognized and used and you have agreed that
there are no disputed material facts in the case or you would not be at
an informal hearing.
Helpful Tips to Preparing for an Informal Hearing.
Since you are not contesting the facts
alleged against you, if you are going to an informal hearing be sure you
do the following:
1.
Be sure you know where the hearing is going to be held. Try to stay
the night before in the same hotel as the hearing will be held. You
will usually have to make these reservations early in order to get a
room.
2. Attend a Board
meeting that occurs before the one at which your case is scheduled.
This will give you a feeling for the procedures that will be followed,
will help to make you less nervous when you appear, and you can obtain
continuing education units for doing so (be sure to sign in and sign
out). Be sure to attend one of the days when the disciplinary hearings
are held.
3. Dress
professionally for the appearance. This may be the most important event
in your professional career. For men, this means a suit and tie or, at
least, a dark coat, dark slacks and a necktie. For women, a
professional business suit or the equivalent is in order. Do not dress
as if you are going to the park, the beach or out on a date. Do not
wear sexually provocative or revealing clothing.
4.
Check the agenda that is published on line a day or two before the
scheduled hearing to make sure that your case is still scheduled for the
date and time on the hearing notice. Informal hearings may be moved
around on the schedule. Make sure you are there at the earliest time on
the hearing notice or agenda.
5.
Listen to questions asked of you by Board members and attempt to answer
them directly and succinctly. You will be placed under oath for the
proceeding and there will be a court reporter present as well as audio
recording devices to take everything down.
6.
Do not argue with the Board members or lose your temper. This is not
the time or place to let this happen. If you have such tendencies, then
you should have an attorney there with you who can intercept some of
the questions and can make defensive arguments (to the extent that they
may be permitted) for you.
7.
You may introduce documents and evidence in mitigation. However, you
have agreed that the material facts alleged are true, so you may not
contest these. In effect, you have plead guilty and you are just
arguing about how much punishment (discipline) and what kind of
punishment you should receive.
8.
If you do intend to introduce documents and evidence in mitigation, be
sure you know what the mitigating factors are (these are published in a
separate board rule in the Florida Administrative Code for each
professional board). These may include, for example, the fact that
there was no patient harm, that there was no monetary loss, that
restitution has been made, the length of time the professional has been
practicing, the absence of any prior discipline, etc. You should submit
these far ahead of time with a notice of filing, so that they are sent
out to the board members with the other materials in your file. This is
another reason to have experienced counsel represent you at the
informal hearing.
9. Be
prepared to take responsibility for your actions. If you are not
prepared to take responsibility, then this means you must believe you
are innocent and you should be at a formal hearing, not an informal one.
10.
Be prepared to explain what went wrong, why it went wrong, and what
remedial measures you have taken to prevent a recurrence of this type of
event in the future. Show that you have learned from this experience
and that you are not going to make the same mistake again.
11.
It is our advice to always retain the services of an experienced
attorney to represent you at such hearings. Often your professional
liability insurance will cover this. If you have professional liability
insurance, be sure that it contains a rider or addendum that provides
coverage for professional license defense matters and administrative
hearings. You need at least $25,000 to $50,000 in coverage for this
type of defense. If necessary, you should contact your insurer or
insurance agent and have the limits increased for a small additional
premium.
Other Little Known Facts to Remember.
Professional
licensing matters are considered to be "penal" or "quasi-criminal" in
nature. Therefore, you have your Fifth Amendment rights in relation to
being required to give evidence against yourself. You cannot be
compelled to do this in such matters. However, since it is an
administrative proceeding and not a criminal proceeding, there is no
requirement that the licensee be advised of this by a DOH investigator
or attorney.
If you enter into a settlement
agreement and attend the informal hearing to approve it, nothing you say
or testify to at this hearing can later be used against you. This is
because you are involved in an attempt to negotiate and settle (or
compromise) the claims being made against you. It is a general rule of
law that nothing the parties say in such settlement proceedings can
later be used as evidence if the settlement agreement is not approved.
The law tries to promote settlements among parties to any dispute in
this way.
It is true that on occasion the Board
will examine a case on an informal hearing and will decide to dismiss
it. This is rare, but it does happen. Sometimes, it will be a tactical
decision on the part of you and your attorney to elect to go to an
informal hearing with the hope that the Board may examine the case and
decide to dismiss it. However, you cannot count on this happening.
Don't Wait Too Late; Consult with an Experienced Health Law Attorney Early.
Do not wait until action has been taken
against you to consult with an experienced attorney in these matters.
Few cases are won on appeal. It is much easier to win your case when
there is proper time to prepare and you have requested a formal hearing
so that you may actually dispute the facts being alleged against you.
The lawyers of The Health Law Firm are
experienced in both formal and informal administrative hearings and in
representing physicians in investigations and at Board of Medicine
hearings.
To contact The Health Law Firm, please call (407) 331-6620 or Toll-Free (888) 331-6620 or visit our website www.TheHealthLawFirm.com.
About the Author: George F.
Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar
in Health Law. He is the President and Managing Partner of The Health
Law Firm, which has a national practice. Its main office is in the
Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.
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