Little Known Facts About State and DOH Investigations That Could Save Your Professional License
Monday, April 9, 2018
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
The notice that you are under investigation may seem nonthreatening. It may come in the mail, be delivered personally by an investigator or you may receive a telephone call from the investigator. This is a very serious matter for you. Our attorneys include those who are board certified in health law by The Florida Bar, those who are nurses, and those who are themselves licensed health professionals. Our attorneys represent health care professionals and providers at formal administrative hearings at the Division of Administrative Hearings (DOAH), in defense of administrative complaints and in informal hearings before the Department of Health (DOH).The Following is a list of little known facts about state investigations (including DOH investigations) that could save your license:
1. You do not have to make any statement at all to an investigator. The Fifth Amendment applies to administrative investigations that can affect your license in Florida. We recommend you never speak to an investigator or make any statement. Let your attorney do this for you.
2. You do not have to sign an affidavit that your health records are complete. In fact, we strongly recommend against doing this. Consult an experienced health lawyer in who has experience in litigating your type of case before signing anything.
3. If you receive a DOH subpoena for records, you do not necessarily have to provide them. You may file an objection to producing them based on an invasion of the privacy of the patient, lack of relevance to the investigation, super-confidential medical information (including HIV/AIDS testing or information, drug or alcohol counseling or testing information, or mental health information) or other proper grounds. In one case, our client received a subpoena for copies of her professional school records and when we checked the case number for the case in which it was issued, the case did not exist.
4. The Surgeon General (formerly known as the Secretary of the Department of Health) does not have the authority to enforce a subpoena or to issue a final order to you compelling you to respond to the subpoena. Only a court of law with jurisdiction has the legal authority to compel you to produce records in response to a DOH subpoena.
5. If you have filed an objection to an administrative procedure, you cannot be legally charged with violating an order from the head of the agency to produce those records. The Surgeon General (formerly known as the Secretary of the Department of Health) does not have the legal authority to enforce such subpoenas.
6. If you are facing an emergency suspension order (ESO) for certain types of misconduct (e.g., drug abuse, alcohol abuse, sexual misconduct, mental impairment) you may be able to submit a voluntary request/agreement to refrain from practice in the state of Florida. This may avoid having an ESO issued, which is a public record and is published through the media. If you have a license in another state, you may still practice in that state.
7. A voluntary relinquishment of your professional license after an investigation has begun is treated the same as a revocation of your license. This may result in a report being made to the National Practitioner Data Bank (NPDB) or the Healthcare Integrity Procurement Data Bank (HIPDB) just the same as a revocation of your license would be (even for LPN, R.N., or ARNP). This will then result in your exclusion from the Medicare and Medicaid Programs, and you debarment/exclusion from all government contracting or employment.If you receive notice that the Department of Health (DOH) has opened an investigation against you, contact The Health Law Firm immediately, before you talk to an investigator.To learn more about how The Health Law Firm can assist you if you find yourself in this situation, click here. To learn more on how to protect your medical license, click here to read one of my prior blogs.
8. You do not have to report a pending DOH investigation against you to anyone. A DOH investigation is and remains completely confidential until at least ten (10) days after there is a finding of probable cause.
9. Until there is a suspension or other final action taken against you, there is no indication on your license or in your licensure file that you are being investigated.
Contact Health Law Attorneys Experienced with Investigations of Health Professionals Today.The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, dentists, pharmacists, psychologists and other health providers in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations 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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