Preparing yourself and your client for an appearance before a health care licensing board on disciplinary matters.

• Author: Shoop, Richard J.

If defending a health care practitioner before his or her respective licensing board ("the board" or "boards") in Florida is not a routine occurrence for you, the task may appear quite daunting. Where do you begin? Like most every task in law, the key to success lies in preparation. The right preparation can make your client's appearance before the board bearable. This article will provide some general background information on how the disciplinary process for boards works, as well as some suggestions for preparing yourself and your client for an appearance before the board on a disciplinary matter.

Overview of Licensure Disciplinary Process

F.S. [section]20.43 charges the Department of Health with "[r]egulat[ing] health practitioners, to the extent authorized by the Legislature, as necessary for the preservation of the health, safety, and welfare of the public." (1) The Division of Medical Quality Assurance (MQA) was established under the department to fulfill this charge, and is currently responsible for approximately 50 different health care professions in Florida. (2) Most health care professions in Florida are regulated by boards, whose members are appointed by the governor for four-year terms, and confirmed by the Senate. (3) These boards are composed of members who are licensed in the respective health care profession and consumer members. (4) Boards make rules regarding the practice and regulation of their profession, make decisions on applications for licensure, and make determinations in disciplinary cases. (5) For those health care professions that are not governed by a board, the department assumes these duties. This article will deal exclusively with issues surrounding board appearances, as you will most likely be representing a licensee who is regulated by a board.

Since July 1, 2002, MQA has taken an active role in providing consumer complaint, investigative, and prosecutorial services for the department. (6) These services are divided among the consumer services unit, the investigative services unit, and the prosecution services unit. Typically, all complaints against health care practitioners are received by the consumer services unit, which will initiate the investigation of legally sufficient complaints. A complaint is legally sufficient if it contains ultimate facts showing the subject of the complaint has violated F.S. Ch. 456, any of the practice acts relating to the professions regulated by the department, or any rule adopted by the department or a board. (7) If more information is needed, the complaint may be transferred to one of 11 field offices under the investigative services unit for further investigation and collection of evidence, such as medical records. (8) The department will notify the subject of the complaint" and provide the subject an opportunity to submit a response. After a thorough investigation, the complaint is forwarded to the prosecution services unit where an attorney reviews the file and recommends either dismissal or the filing of an administrative complaint. (9) F.S. Ch. 456 mandates that the department make a final recommendation to a probable cause panel on the complaint within six months of its receipt. Failure by the department to comply with the six-month time period constitutes "harmless error in any subsequent disciplinary action unless a court finds that either the fairness of the proceeding or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure." (10)

The attorney's recommendation is then presented to the probable cause panel of the board. Probable cause panels are composed of at least two members, as required by statute, and the larger boards often have more than one probable cause panel. (11) A probable cause panel must include a present board member, a former or present board member, and a former or present consumer member, if one is available, willing to serve, and authorized by the board chair to do so. (12) The probable cause panel is given a copy of the department's complete investigative file, any expert opinions obtained by the department, and the subject's response to the complaint, if one was submitted. The department is required to furnish a copy of these materials to the subject of the complaint upon written request if the department is recommending a finding of probable cause, or if the subject of the complaint waives confidentiality. (13) After a review of the materials supplied by the department, the probable cause panel makes the ultimate determination of whether a complaint should be closed or an administrative complaint filed. (14) A decision to either find probable cause on a complaint or to dismiss it must be made by a majority vote of the probable cause panel. (15)

If the panel does not find probable cause, the complaint is closed and remains confidential. (16) If the probable cause panel determines that probable cause exists to go forward with a complaint, then an administrative complaint is filed with the agency clerk for the department, and becomes public 10 days after probable cause is found. (17) The administrative complaint is then served on the subject, usually by personal service or by certified mail, (18) and the subject has 21 days (19) to respond.

If the subject disputes any allegation of material fact in the administrative complaint, he may request a formal evidentiary hearing before an administrative law judge assigned by the division of administrative hearings, as provided for in F.S. [section]120.57(1). These evidentiary hearings are similar to bench trials. (20) The Florida Rules of Evidence apply with one key exception. Hearsay is allowed, but an administrative law judge cannot make a finding of fact or conclusion of law based solely on hearsay without some other form of supporting evidence, unless the hearsay would be otherwise admissible. (21) After conducting the evidentiary hearing, including taking testimony and receiving documentary evidence, the transcript will be...