A Roadmap to Licensure Investigations
The following article was published on November 1, 2016 by South Florida Hospital News.
By Vanessa A. Reynolds
For healthcare practitioners, few events are as anxiety-provoking as a professional licensure complaint and investigation. Even if a complaint is ultimately determined to be unfounded, responding is time-consuming and can be disruptive to a practice.
The Florida Department of Health (Department) is responsible for investigating complaints. Patient complaints, reports of adverse medical incidents or peer review actions and other mandatory reports may trigger an investigation, as may reports submitted by other state agencies, malpractice payments in excess of $50,000, and any “reasonable cause to believe” that a practitioner has violated any law or obligation governing the practitioner’s profession.
Physicians are afforded 45 days in which to respond to a notice of investigation, while other practitioners are given 20 days. The notice informs the practitioner of the substance of the complaint and that he or she may agree to be interviewed or to submit a written response. Although not noted in the Department’s letter, the practitioner may also opt to do neither, and to wait until the Department’s investigation is complete.
Developing a strategy is the first and most important step in deciding how and when to respond to an investigation and should be done with the assistance of counsel experienced in licensure disciplinary matters. An independent investigation should be conducted and, if indicated, an appropriate expert engaged to review the record.
If the complaint is uncomplicated and there is sufficient evidence to rebut it, the practitioner may wish to submit an initial written response to the Department. In other cases, it may be better to submit a detailed response after the Department has completed its investigation. In most cases, interviews with the Department investigator should be declined. In all cases, the practitioner must request a copy of the Department’s complete investigative file.
In addition to providing documentation the Department believes supports the complaint, the investigative file may include allegations not identified in the complaint, opinions from Department experts and information that refutes the allegations. The practitioner is entitled to submit a response to the investigative file. This is often the critical response and should address all alleged violations. If a favorable expert review has been obtained, it should be submitted with this response.
The complete investigative file, along with the practitioner’s response(s) and the Department’s recommendations, is presented to a probable cause panel of the practitioner’s licensing board. If the panel determines there is no probable cause to believe that the practitioner violated a statute or Departmental or board regulation, the investigation is closed and remains confidential. If the panel finds probable cause, it can issue a letter of guidance (which is not considered discipline and also remains confidential) or direct the Department to issue an administrative complaint.
A practitioner who is the subject of an administrative complaint can request an informal hearing or formal evidentiary hearing before an administrative law judge (ALJ). In practice, the hearing request usually begins settlement negotiations between the practitioner’s and the Department’s attorneys, and most complaints are settled. Before agreeing to settlement terms, the practitioner should consider possible collateral consequences and his or her ability to satisfy the terms. Settlement agreements must be approved by the practitioner’s licensing board and a personal appearance before the board may be required. The board can approve or reject the agreement and propose new terms.
If the Department and practitioner cannot reach an agreement, an administrative hearing at which the parties present evidence and argument is conducted. The ALJ issues a report and recommended order that is transmitted to the board for final action. The practitioner may file and present to the board exceptions to the ALJ’s report and recommendations, after which the board issues a Final Order. A Final Order can be appealed through the courts.
While any practitioner can be the subject of a complaint, understanding and strategically navigating the process can mitigate stress and may result in a better outcome.