Administrative law | The Health Law Firm Blog

Terrible Things That Can Happen after Discipline on Your Professional License or Resignation of a License after Notice of Investigation

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Do you have a medical, pharmacy or nursing license in several different states? Do you have a license in more than one health profession? Have you been notified that an investigation has been opened against you? Are you thinking about resigning your professional license or voluntarily relinquishing such a license? Then you must be aware of the following.

First, you should never voluntarily relinquish or resign your license after you know that an investigation has been opened or that disciplinary action has been taken against you. Such a resignation is considered to be a […]

By The Health Law Firm|2024-03-14T10:00:49-04:00June 1, 2018|Administrative law, Health Care Industry, Licensing issues, The Health Law Firm Blog|

Recent Appellate Court Case Emphasizes The Public’s Right to Records Under Public Records Act

By: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by the Florida Bar in Health Law

The following is a summary of a recent appellate case on an issue that may be relevant to those pursuing administrative hearings in health law cases or related cases:

Promenade D’Iberville v Sundy, 145 So. 3d. 980 (Fla. 1st DCA 2014)

After receiving a public records request from Promenade D’Iberville, LLC (Promenade), with whom the Jacksonville Electric Authority (JEA) was in active litigation in Mississippi, the JEA filed a motion for protective order in the Mississippi court to circumvent the request. The JEA eventually turned over the requested records, but only after two months […]

By The Health Law Firm|2024-03-14T10:01:00-04:00June 1, 2018|Administrative law, Electronic Health Record, The Health Law Firm Blog|

Trial Court Must Hold Evidentiary Hearing to Determine Disputed Facts in Public Records Act Suit

Edited by George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in the Legal Specialty of Health Law

An interesting summary of a Florida appellate case from Florida’s First District Court of Appeal recently came across my desk. Florida has a very broad Public Records Act and Sunshine Act. We are often involved in suing state agencies for force disclosure of documents and information.

The following is from a summary that was originally published in the newsletter of the Florida Bar’s Administrative Law Section.

Clay Cnty. Ed. Ass’n u. Clay Cnty. Sch. Bd., 144 So. 3d 708 (Fla. 1st DCA 2014).

After requesting various public records related to […]

By The Health Law Firm|2024-03-14T10:00:59-04:00June 1, 2018|Administrative law, The Health Law Firm Blog|

Physician Argues Definition of “Peer” at Formal Administrative Hearing

FACTS: The Agency for Health Care Administration (“AHCA”) is responsible for administering Florida’s Medicaid program and conducting investigations and audits of paid claims to ascertain if Medicaid providers have been overpaid. With regard to investigations of physicians, section 409.9131, Florida Statutes, provides that AHCA must have a “peer” evaluate Medicaid claims before the initiation of formal proceedings by AHCA to recover overpayments. Section 409.9131(2)(c) defines a “peer” as “a Florida licensed physician who is, to the maximum extent possible, of the same specialty or subspecialty, licensed under the same chapter, and in active practice.” Section “109.9131(2)(a) deems a physician to be in “active practice” if he or she has “regularly provided […]

By The Health Law Firm|2024-03-14T10:00:58-04:00June 1, 2018|Administrative law, Agency for Health Care Administration, Appeal, Health Care Industry, Medicaid, Medicaid audit, Medicaid Fraud, The Health Law Firm Blog|

AHCA Expert Not Allowed to “Use His Discretion” in Deciding Claims Were Improper in Medicaid Appeal Hearing

FACTS: The Agency for Health Care Administration’s (“AHCA”) Office of Medicaid Program Integrity audited Dr. Rao, an authorized provider of Medicaid services, for claims between July 1, 2007, and June 30, 2009, and found him to be in violation of certain Medicaid provider policies. AHCA prepared a Final Audit Letter on June 1, 2011, notifying Dr. Rao that he had been overpaid by the Medicaid program by $110,712.09 for services provided during the audit period. Dr. Rao’s administrative hearing challenging AHCA’s overpayment determination was pending before DOAH. On August 17, 2012, Dr. Rao filed an unadopted rule challenge, alleging that AHCA’s overpayment determination was based on unadopted rules regarding the medical necessity of long-term monitored electroencephalograms (LTM EEGs).

OUTCOME: […]

By The Health Law Firm|2024-03-14T10:00:55-04:00June 1, 2018|Administrative law, Assisted Living Facilities, Medicaid, Medicaid audit, The Health Law Firm Blog|

Invoking Fifth Amendment by Applicant’s Personnel May Result in Denial of Their Application for a License

The foregoing case summary was prepared by and appeared in the DOAH case notes of the Administrative Law Section newsletter

FACTS: The Agency for Health Care Administration (“AHCA”) denied Avalon Assisted Living III’s (“Avalon III”) application for licensure of an assisted living facility in Orlando. Avalon III challenged the denial, and the case was referred to DOAH for a formal hearing. During AHCA’s attempts to obtain discovery, two people closely associated with Avalon III (Mr. Robert Walker and Mrs. Chiqquittia Carter-Walker) invoked their Fifth Amendment privilege against selfincrimination in response to questions regarding the grounds stated by AHCA in its initial decision to deny the license. These areas of inquiry included alleged unlicensed activity, the ownership and control of Avalon III, […]

By The Health Law Firm|2024-03-14T10:00:54-04:00June 1, 2018|Administrative law, Assisted Living Facilities, Licensing issues, The Health Law Firm Blog|

If Denial of Licensure is Disciplinary in Nature, Then Agency Must Prove Case by “Clear and Convincing Evidence”

The foregoing case summary was prepared by Mary F. Smallwood, Esquire, of The Administrative Law Section of The Florida Bar.

Davis Family Day Care Home (“Davis”) was issued a license as a family day care home in 2007. Davis applied annually for renewal of that license. In 2011, Davis applied for renewal of its license and also applied for a license as a large family child care home.

The Department of Children and Families (“DCF”) proposed to deny both the renewal application and the application for licensure as a large family child care home. Davis sought an administrative hearing on both denials. After an administrative hearing, the administrative law judge (“ALJ”) issued a recommended order recommending issuance of the renewal on a […]

By The Health Law Firm|2024-03-14T10:00:54-04:00June 1, 2018|Administrative law, Licensing issues, The Health Law Firm Blog|

After Investigation Has Ended, Even Investigator’s “Mental Impressions” Are Subject to Release Under Public Records Act

The foregoing case summary was prepared by Mary F. Smallwood, Esquire, of The Administrative Law Section of The Florida Bar.

The City of Avon Park (“City”) terminated Michael Rowan’s employment as Chief of Police. In the subsequent administrative hearing, at issue was Rowan’s investigation of certain city council members and alleged deletion of certain information from his work computer.

An investigator with the State Attorney’s Office was called in to investigate those issues; he prepared a report of his findings. The City subpoenaed the investigator to appear as a witness at the administrative hearing on Rowan’s termination, and to bring his report, which the City wanted to rely on. The State sought a circuit court order quashing the subpoena issued to the […]

By The Health Law Firm|2024-03-14T10:00:54-04:00June 1, 2018|Administrative law, Public Records, The Health Law Firm Blog|

Agency Attorney Prosecuting Case Should Not Also Be in Position of Advising The Agency; Possible Bias Denies Due Process

McAlpin appealed an order of the Criminal Justice Standards and Training Commission (“Commission”) suspending his law enforcement certification for eighteen months. The Commission filed an administrative complaint alleging misconduct during the course of a criminal investigation. A formal administrative hearing was held and a recommended order was issued.

At the Commission hearing to consider the recommended order, the attorney who prosecuted the case against McAlpin was present and offered advice to the Commission. The Commission’s staff had prepared a memorandum to the Commission recommending an increase in the recommended penalty to revocation of McAlpin’s license. It was not clear who prepared the staff memorandum. However, it was clear the prosecuting attorney had prepared exceptions to the recommended order for the agency.

On […]

By The Health Law Firm|2024-03-14T10:00:54-04:00June 1, 2018|Administrative law, Appeal, The Health Law Firm Blog|

Florida Doctor Faces Administrative Hearing Over Allegations of Torturing Patient

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A Lake Worth, Florida, doctor accused of “punishment therapy” that included the use of whips, blindfolds, handcuffs and other instruments of torture could have his license revoked by the Florida Board of Osteopathic Medicine. At the meeting on November 15, 2013, the Board rejected a settlement that the Florida Department of Health (DOH) had negotiated with the doctor’s attorney. The settlement option included a $10,000 fine and two (2) years of probation. The doctor was not arrested or charged with a crime, but admitted to having an unusual and sexual relationship with his patient.

By […]

By The Health Law Firm|2024-03-14T10:00:53-04:00June 1, 2018|Administrative law, Board of Medicine, The Health Law Firm Blog|