Lasting Effects of Voluntary Relinquishment, Investigation and Discipline on Your Medical License
Thursday, December 19, 2019
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
Many healthcare professionals are unaware of the negative long-term effects that discipline could have on their medical license. This includes submitting a voluntary relinquishment of the license while there is an open investigation or pending charges.
A voluntary relinquishment of the license after notice of an investigation or while a charge is pending is treated the same as a disciplinary revocation of the license. In some cases, this scenario is worse for the provider if the agreement to voluntarily relinquish also includes an agreement to never apply for another license again. Most people don’t realize what else can happen as a result of discipline, revocation or even voluntary relinquishment (under these circumstances).
Reports to Other National Organizations on Provider Discipline.
It’s important to know that the discipline (including voluntary relinquishment) will now be public record. It will also be reported out to national reporting agencies, including the National Practitioner Data Bank (NPDB).
As a result, the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) will most likely start action to exclude the disciplined provider from the Medicare Program. This means he or she will also be placed on the OIG's List of Excluded Individual's and Entities (LEIE). This will bar a provider from the Medicare Program or working for or contracting with anyone else who does (including insurer's medical clinics and most health care providers). This by itself will also have many negative consequences.
For example, if you are excluded from the Medicare Program you are automatically placed on the U.S. General Services Administration (GSA) "debarred" list. You are automatically excluded from working for or contracting with, in any capacity, any organization, individual or agency that has any government contracts or accepts any federal funding. This act can bar you from working for a public school, working as a real estate agent, or many other jobs.
Consequences of Revocation or Other Discipline on Your License.
To summarize, the most serious adverse problems that may be caused as a result of discipline on your license may include the following:
1. May cause discipline to be commenced against any other health professional license you have, such as a nurse, acupuncture physician, chiropractic assistant, nurse’s aide, home health assistant, etc.
2. Will prevent you from obtaining any health professional license in the future.
3. May cause discipline to be commenced against any massage therapy establishment license for a massage therapy establishment you own in whole or in part.
4. Any other states or jurisdictions in which you have a license will also initiate action against him or her in that jurisdiction.
5. Mandatory report to the National Practitioner Data Base (NPDB), which remains there for 50 years.
6. The OIG will take action to exclude the provider from the Medicare Program. If this occurs, (and most of these offenses require mandatory exclusion) the provider will be placed on the List of Excluded Individuals and Entities (LEIE) maintained by the OIG HHS.
7. If the above occurs, the provider is also automatically "debarred" or prohibited from participating in any capacity in any federal contracting and is placed on the U.S. General Services Administration's (GSA's) debarment list.
8. Third-party payors (health insurance companies, HMOs, etc.) will terminate the professional's contract or panel membership with that organization.
9. Regardless of any of the above, any facility licensed by AHCA (hospitals, skilled nursing facilities (SNFs), public health clinics, group homes for the developmentally disabled, etc.) that are required to perform background screenings on their employees will result in AHCA notifying the facility and the professional that he or she is disqualified from employment.
What Can be Done and How Our Firm Can Help.
If you have submitted a voluntary license relinquishment without understanding the consequences and the Board of Medicine has not acted to accept it, you may withdraw it. Our firm will submit a letter to the Executive Director of the Board stating it was submitted by mistake without fully understanding the consequences, and the provider desires to withdraw the voluntary relinquishment. We submit this immediately (keeping a copy, of course) and by certified mail, return receipt requested, so we have proof of sending and proof of receipt.
However, you must also ask for a formal hearing to dispute the facts in your case, as well. We usually do this at the same time and by the same method. If you fail to request a formal hearing, then you are waiving your rights to challenge your guilt or innocence.
If you have requested an informal hearing, you have made a big mistake. For an informal hearing, you are admitting that everything stated in the complaint against you is true. You are admitting that all of the charges against you are correct, so you are pleading guilty to the charges. You are then giving up the right to have a hearing to determine whether you are guilty or innocent. Essentially, all you are going to be arguing about is the punishment you will receive. You will not be allowed to testify or introduce any evidence on your guilt or innocence.
If you have submitted a request for an informal hearing, not realizing this, we can still help. Our firm will submit an immediate request to have the hearing changed over to a formal administrative hearing. During this hearing, you are allowed to dispute the facts against you and prove your innocence. In such a case, it is necessary to submit a Petition for a Formal Administrative Hearing and to specify which facts are contested or disputed and why.
The case is then sent to a neutral Administrative Law Judge (ALJ) to hold a hearing on the case. The state Department of Health (DOH) is then required to prove the facts against you by clear and convincing evidence. You do not even have to introduce any evidence or testimony, the burden of proof is on the DOH to prove the case against you.
Emergency Suspension Orders (ESOs), Appeals and Election of Rights (EOR) Forms.
In Florida, if you have an Emergency Suspension Order (ESO), you can appeal it to a court of appeal. The problem with this is that it is very technical to do so and is very costly. Call an attorney who specializes in appeals or appellate law. Additionally, the court of appeal only rules on the law and not the facts. The appeal court will be required to accept everything that is stated in the ESO as true. There is no fact hearing, there are only legal arguments. Your basic case will be delayed while this takes place, and you will probably lose on appeal. This may not be the best choice for you.
However, if there is an ESO, you also have the right to an expedited fact hearing on it. This may be the best course of action if you have documents and facts to show you are not guilty of the charges.
Furthermore, there will also be an additional document served on you, an administrative complaint (AC). You will be given your hearing rights when this occurs (called an "Election of Rights" form or "EOR"). As we indicated above, you will almost always want to select a formal administrative hearing in which you dispute (challenge or contest) the allegations (charges) made against you. This is the only way you will have the right to have a full and fair hearing on your innocence of the charges. Make sure it is submitted in plenty of time to be received within the 21 days given. Seek legal advice in completing it. Do not admit to anything; you don't have to as the state DOH has the burden of proof.
The Importance of Finding a Health Law Attorney Experienced in DOH Matters.
It’s very difficult to take the actions necessary for yourself if you don’t have any legal training. Non-lawyers make many unnecessary mistakes in these proceedings. Simple, yet stupid mistakes can be used against you including things like submitting written statements when you don’t have to, talking to the DOH investigator or Board personnel, talking to the DOH prosecuting attorney, making admissions which can be used against you, and waiving your rights when you don't need to.
Most attorneys are not familiar with these types of procedures if they do not practice health law. They don’t realize that the same rights which apply in criminal cases also apply to professional licensure cases. You need to find and hire an attorney experienced in this type of case. That would be a health law attorney, and preferably one who is Board Certified by the Florida Bar in Health Law.
What You Should Do.
The bottom line is that if you are innocent and want to dispute any charges against you, follow these tips:
1. If you have professional insurance coverage, such as HPSO Insurance, see if your insurance will cover your legal defense expenses in this type of case. Many will. We know HPSO will.
2. Act right away to request all of your rights in any matter. Make sure that anything you submit is received (not mailed, received) before the deadline that was given.
3. Do not call, write or speak to the DOH investigator, Board personnel, DOH personnel or the DOH attorney.
4. Do not make a statement, written or oral, to the DOH investigator, Board personnel, DOH personnel or the DOH attorney.
5. Contest (dispute or fight) every action that might be stated against you, including one by the OIG.
6. Do not admit to anything you don't have to as the state DOH has the burden of proof.To learn more, visit our Video Q&A section on our website and watch our video titled, "Should I voluntarily relinquish my professional license because I am being investigated?"
7. Keep copies of all forms or letters submitted, along with proof of mailing and proof of receipt (send via certified mail, return receipt requested).
8. Retain the services of a health lawyer who has experience in Board of Medicine/Department of Health (DOH) cases (ask him or her how many he or she has actually done). DO THIS FIRST, NOT LAST!
Contact Health Law Attorneys Experienced with Department of Health (DOH) Investigations of Healthcare Professionals.
The attorneys of The Health Law Firm provide legal representation to medical professionals in Department of Health (DOH) investigations, licensing matters and other types of investigations of health professionals and providers.
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at 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., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
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