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

Administrative Hearings in Florida

ADMINISTRATIVE HEARINGS IN FLORIDA: FORMAL VS. INFORMAL HEARINGS

Florida has a state Administrative Procedure Act set forth in Chapter 120 of Florida Statutes. It is modeled after the federal Administrative Procedure Act. It provisions, with certain limited exceptions, apply to all state administrative agencies. Agencies or organizations that are part of the Florida court system or Florida Legislature are exempted from this law. This article is written primarily for health care providers, so it focuses mainly on the procedural aspects of the law that are applicable to them.

Any time the decision of a state administrative agency affects the substantial interests of an individual (or organization), that individual is entitled to an administrative hearing. The two main types of administrative hearings, for our purposes, are the “informal hearing” and the “formal hearing” authorized by Section 120.57 (1), Florida Statutes. “Informal hearings” are authorized by Section 120.57(2), Florida Statutes; “formal hearings” authorized by Section 120.57 (1), Florida Statutes. The differences between the two types of hearings are dramatic and outlined in this article.

It is extremely important that any person seeking a hearing on an administrative agency’s decision, proposed decision or action, understand the differences between these two hearings. Physicians, dentists, nurses, pharmacists and other licensed health care providers who may be investigated or charged must know what these differences are.

Informal Administrative Hearings

Informal hearings are for the occasions when there are no disputed issues of material fact. In other words, you agree with the agency’s position or you agree with the agency’s statement of charges (or administrative complaint) against you. This is the equivalent of a nolo contendere plea in a criminal case. You are agreeing to all of the facts and conclusions as stated by the agency.

In an informal hearing, the only matter left open to decision is the ultimate result or final punishment. By electing an informal hearing the agency will allow you the opportunity to present only mitigating factors which might affect the punishment or discipline appropriate in the case. However, ultimately the decision regarding your punishment will be made by the agency (or professional board). Since most professional licensing boards have standard amounts of fines, suspension, probation or community service, which are awarded for different offenses, this may be a fruitless exercise.

Many persons who are not familiar with administrative hearings mistakenly select the option for the “informal hearing.” They believe the hearing will not have as many technical rules, they can represent themselves and argue the facts of their case (including guilt or innocence) before a board or panel of their colleagues, and they will have a better chance at obtaining a dismissal or proving their innocence. Nothing could be further from the truth.

When you elect an informal hearing, you are admitting to all of the facts contained in the administrative complaint, notice of intent to deny, or other charging document used by the state agency. The only portion of the case left to decide at the informal hearing is the punishment or discipline to be issued. The facts, including guilt or innocence, are considered to be admitted and can no longer be disputed.

To illustrate this point to clients, we advise them that by selecting an informal hearing, it is similar to the individual’s pleading guilty and throwing himself or herself on the mercy of the court. All that is left to argue about is the type of punishment and quantity of punishment. The board will not allow you to argue about, discuss or dispute the facts of the case or whether or not you have committed the offenses charged.

Formal Administrative Hearings

A formal administrative hearing is governed by Section 120.569 and 120.57, Florida Statutes. It is also governed by Chapter 28-106, Florida Administrative Code (F.A.C.). In most cases, if you request a formal administrative hearing, you must also state that you are contesting material facts in the case and specify the facts that you are disputing. In the case of discipline against a professional license, you may do this on the election of rights (EOR) form sent to you by the department. Since disciplinary cases against a professional license are considered to be penal (or “quasi-criminal”) in nature, you have all of the same rights you would have in a criminal trial, including the Fifth Amendment right against self incrimination.

In addition, although there are some exceptions, generally the Florida Rules of Evidence are followed in formal hearings and many of the Florida Rules of Civil Procedure are followed. This helps to prevent inadmissible evidence, unfair or prejudicial evidence, and the unsubstantiated or unreliable evidence from being considered against you. It also helps to ensure that you will be able to find out what witnesses, documents or other evidence the state agency has against you, including evidence that may help you. Many of the other procedures set forth for formal administrative hearings are the same as those that apply to the trials of civil cases in state courts.

At a formal hearing, the state agency has the burden of proof in going forward and proving the case against you. You do not have to prove anything. If revocation of a license is one of the punishments sought, the agency or department must prove its case by “clear and convincing evidence.” This is higher than the “preponderance of the evidence” standard (sometimes described as “more than 50%” or “more likely than not”); but this is lower than the “beyond a reasonable doubt” standard (the burden in an actual criminal case). In many cases the state agency may not be able to meet this higher standard and the individual respondent may not even have to put on a defense.

In most types of formal administrative hearings the agency or department is required to forward your case to the Division of Administrative Hearings (DOAH), a completely different state agency which hears a variety of different types of cases, for the hearing. [There are exceptions to this, however.] When your case is received at the DOAH, an Administrative Law Judge (ALJ) will be assigned to preside over the case. ALJ’s are appointed by the governor and are usually very fair and objective persons. The hearing then proceeds along the lines of a judge above trial in civil court.

Formal hearings are also governed by procedural rules set forth in the Florida Administrative Code (F.A.C.). The rules and the Florida APA, Chapter 120, Florida Statutes, are to protect your rights and to ensure a fair hearing, a right guaranteed to you by the U.S. Constitution and the Florida Constitution.

If the state is alleging charges against you based on incorrect facts or you are innocent and desire to prove this, you should request a “formal hearing.” You will not be allowed to dispute the facts or contest your innocence at an informal hearing.

Since formal hearings do follow specific procedural and evidentiary rules, it is crucial that you obtain the advice of an experienced attorney to represent you if you elect one. Otherwise, you may make mistakes that damage your case and prevent you from properly defending yourself.

 

(revised 3/3/2011)


This is for information purposes only and does not constitute legal advice.

© Copyright 2011 George F. Indest III, Board Certified by The Florida Bar in Health Law, The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, Florida 32714. Phone: (407) 331-6620. All rights reserved.