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DEPARTMENT REGULATED PROFESSIONS

Dietetics & Nutrition | Electrolysis | School Psychology | EMT Paramedics | Radiologic Technology | Medical Physicist | Midwifery

Enforcement


The Investigation Process

Investigative Authority

Section 456.073, Florida Statutes (F.S.), defines the enforcement process for healthcare practitioner regulation.

  • Practice Acts for Each Profession
  • Title 64B, Florida Administrative Code

Investigators are familiar with, and regularly cite statutes 456, 457, 458, 459, 460, 461, 462(now defunct), 463, 464, 465, 466, 467, 468 Part I, II, III, IV, V, X, XIII, XIV, 893 (criminal), as well as the Administrative Rules associated with each profession.

Consumer Services Unit (CSU)

CSU - Central intake unit for all complaints for the state, including unlicensed activity.

CSU serves as a mini-call center and a one-stop shop, with typical calls being:

  • How do I file a complaint?
  • Can a doctor do ... (something)?
  • How do I request my records?

As a one-stop shop MQA investigators have helped people connect with the correct agencies for child support, septic tanks, out of state, rave parties with body suspension, abandoned hazardous material and more.

We do NOT intervene in health care treatment. Those issues are referred to DCF, DOEA, local law enforcement, and civil attorneys.

CSU analyzes all complaints to determine legal sufficiency and may request additional information and documentation. A complaint is legally sufficient if it alleges facts that would constitute a violation of Chapter 456, any of the professional practice acts, or any department or board rule. The department may require supporting information or documentation to determine legal sufficiency.

Investigative Services Unit

The Investigative Services Unit (ISU) conducts interviews, collects documents and evidence, prepares investigative reports for the Prosecution Services Unit and serves subpoenas and official orders of the department.

  • Cases are assigned to ISU field investigators, based on their experience and knowledge
  • All cases are continuously monitored to determine if there is risk of harm to the public and if so, a request is made to upgrade to a priority investigation.

Prosecution Services Unit

Once the investigation is complete, the investigative report is sent to the Prosecution Services Unit (PSU).

  • An attorney (and sometimes a consultant) reviews the report and a recommendation is drafted for the probable cause panel (PCP).
  • The case is presented to the PCP who decides if probable cause exists to believe a violation has occurred.

Where Do Complaints Come From?

People

  • Consumers
  • Licensees
  • Consultants, Experts, and Attorneys
  • Other Agency investigators (DCF, MFCU, AHCA)
  • Hospital Staff, Ambulatory Surgical Centers, Long Term Care Facilities
  • Inspections and other internal sources
  • Good Samaritans, researchers, and activists
  • Media Analyst

Reports

  • Closed Medical Malpractice Claims
  • Adverse Incident Reports (Code 15, Nursing Home, Assisted Living Facility)
  • Hospital Discipline Reports (Peer Review)
  • Other Agency mandates (State and Federal)
  • Fingerprint Hits
  • Special Emergency Actions (3 in 5, 4 or more ptn)
  • Internal Error Audits
  • Insurance Agencies

How Are Complaints Assigned?

  • Complaints go through an intake process where they are triaged for priority, assigned to an investigator or analyst based upon board assignment and rotation, and entered into our database by our Administrative Support Team
  • CSU has 19 investigators and analysts, each of whom analyzes and works complaints for several boards

Complaint Priorities

  • Priority 1, 2 or 3: CSU must analyze complaint and initiate investigation, closure, or request additional information within 24 hours.
  • Priority 4 or 5: CSU must analyze complaint and initiate investigation, closure or request of additional information within 8 days

Priority Investigation Timeframe

Used to seek Emergency Suspension Orders through our EAU

  • Priority 1 Investigations: CSU/ISU must complete analysis and investigation within 7 days
  • Priority 2 or 3 Investigations: CSU/ISU must complete analysis and investigation within 14 days.
  • Priority 4 or 5 Investigations: CSU/ISU must complete investigation within 90 days.

Deciding Complaint Priority

Priority 1:

  • Over-prescribing
  • Practice related arrests
  • Sexual assault/sexual misconduct
  • Assault/battery on a patient
  • Impairment in a practice setting
  • Substandard care leading to serious patient injury or death
  • High media attention
  • Practicing on a suspended license

Priority 2:

  • Malpractice involving multiple patients
  • Impairment, including IPN/PRN referrals
  • Fraud
  • Convictions with underlying facts relating to practice or ability to practice

Priority 3:

  • Student loan defaults
  • Pre-employment and for-cause positive drug screens
  • Statutorily defined felony convictions

Legal Requirements of a Complaint

  • In writing
  • Signed by the complainant
  • Legally sufficient (The complaint alleges facts that are a possible violation of Chapter 456, the professional practice act, or any department or board rule.) CSU may require supporting information or documentation to determine legal sufficiency

Special Requirements

  • State Prisoners
  • Prisoner must exhaust DOC administrative remedies
  • Anonymous Complaints (only in special cases)
  • Unlicensed Activity
  • Alleged violation is substantial
  • We believe the allegations are true and have an avenue to develop it further.
  • Unlicensed Activity
  • Complaints may be taken over the telephone

What Can Happen to a Complaint?

Open for investigation.

  • Alternative Dispute Resolution
  • Resolve minor complaints with no patient harm as efficiently as possible and without public discipline on a license.
  • Mediation, Notice of Non-Compliance, or Citation as authorized by rule in Florida Administrative Code.
  • Desk Investigation - Handled in Tallahassee (convictions, advertising, profiling, out of state discipline).
  • Field Investigation - sent to one of 10 Field Offices for more thorough Investigation.

Ask for additional information.

Closed as not legally sufficient.

Examples of Complaints Investigated

  • Practicing below minimum standards or negligence; malpractice
  • Examples: Wrong site surgery, diagnosis or treatment not meeting minimum standard of care
  • Impairment from drugs, alcohol, physical or mental medical condition, etc.
  • Examples: Termination from IPN/PRN, exhibiting impaired behavior on the job, positive drug screen
  • Diversion of drugs
  • Examples: Taking drugs meant for patients, falsifying drug records
  • Unlicensed activity
  • Advertising violation
  • Examples: Failure to use disclaimer when advertising free or discounted services
  • Sexual misconduct with a patient
  • Misfiled/mislabeled prescription
  • Failure to release patient records

Examples of Complaints Not Investigated

  • Fee disputes (broken or missed appointments
  • Examples: Fees charged for no-show appointments, charging for services not covered by insurance, charging amounts patient thinks are too much
  • Billing disputes
  • Examples: Not billing insurance, charging amounts patient thinks are too much
  • Personality conflicts, bedside manner or rudeness of practitioner
  • Examples: Discharging a patient from the practice, using offensive terms or language, not complying with patient demands, failure to return telephone calls to patient or patient’s family

Compliance Monitoring

Analyze all Final Orders, enter terms and update license status in LEIDS (Licensing & Enforcement Information Database System).

Monitor compliance with all Final Orders of the Boards (all disciplinary orders, disciplinary and non- disciplinary citations).

Issue Disciplinary Enforcement Requests to ISU for probationers. Refer past-due accounts for collections.

Refer violations of Final Orders to CSU to initiate a new complaint.


The Disciplinary Process

Emergency Suspension/Restriction

Preliminary materials in Priority 1 and 2 cases are transmitted to EAU at the same time they are transmitted to the field for investigation. They are assigned to an attorney for immediate evaluation to determine whether there is enough evidence to warrant an Order Compelling Examination or Emergency Suspension Order/Emergency Restriction Order prior to the official completion of the investigation. An OCE is an order that requires the licensee to submit to an evaluation to determine whether the licensee is safe to practice. ESOs/EROs are issued to either suspend or restrict the licensees practice because the licensee is unsafe to practice. OCE’s, ESO’s and ERO’s are drafted by the assigned attorney and signed by the State Surgeon General. The Probable Cause Panel is not involved in the process.

Priority 1 and 2 Cases consists of cases involving arrests with underlying allegations that are related to overprescribing, inappropriate prescribing, or inappropriate dispensing/compounding; sexual assault or sexual battery on a patient; assault or battery on a patient; allegation of gross substandard care leading to serious injury or death to a patient; and impairment in practice setting.

Reasons why emergency action may not occur: Evidence/witnesses are not available for use by PSU due to ongoing criminal investigation/prosecution; conviction/plea, which would form the only available basis for emergency action occurred too long after an arrest (emergency action based upon immediate serious danger occurs due to the underlying conduct establishing that someone poses a danger; a conviction is a function of the criminal system and is not necessarily an indicator that someone is dangerous to the public).

Probable Cause Panel Process

Complaints that have been determined to be legally sufficient are forwarded to PSU for prosecution; typically, this occurs once an investigation is completed. A case is assigned to a prosecutor, who reviews the file and determines what, if any, violations of a particular practice act may be brought and then prepares the appropriate pleadings for submission to the PCP. A prosecutor may recommend dismissal of a case due to insufficient evidence. A prosecutor may also recommend dismissal with a letter of guidance where there is evidence to support a violation but the panel may issue a letter of guidance in lieu of an Administrative Complaint (AC). An Administrative Complaint is recommended when there is probable cause that the Respondent committed a violation. Once probable caused is found, the AC is filed with the Agency Clerk and served on the Respondent. Once Respondent is served with the AC, the Respondent has 21 days to return the Election of Rights form requesting either a formal or informal hearing, or returning an executed settlement agreement.

Key factors that contribute to the prosecution of a case include the following: 1) witnesses refuse to cooperate or to provide testimony; 2) new evidence is submitted by the Respondent that necessitates additional expert review; 3) additional charges or reduction of charges requires that the case be presented back to the PCP for consideration and approval; 4) settlement negotiations involve settlement offers are rejected by the Board when presented and the counter-offer is rejected, requiring the case to be returned to its prior posture; 5) expert witnesses become unavailable for hearing, necessitating the retention of new expert witness and resulting depositions thereof.

Types of Cases Presented to the Board

Informal: The Respondent may request a hearing not involving disputed issues of material fact in the Administrative Complaint (AC). At the informal proceeding, the Subject would be permitted to present both written and oral evidence in mitigation of any disciplinary action.

Formal Hearing/Recommended Order: The Subject may request a hearing involving disputed issues of material fact alleged in the AC by submitting a petition for referral to the Division Of Administrative Hearings (DOAH). A formal hearing is conducted before an Administrative Law Judge (ALJ) at DOAH. After the hearing the ALJ issues a Recommended Order (RO) regarding the findings of fact and conclusions of law. The RO is presented to the Board for adoption. If the Board wishes to change any findings of fact or conclusions of law it must find competent substantial evidence in the case record to support the change.

Settlement Agreement: The Respondent may submit a signed settlement agreement that is negotiated by the Prosecutor and the Respondent (or attorney). The Settlement Agreement must be adopted/approved by Board before it is effective.

Waiver/Default: If the Respondent does not respond to the allegations in the AC within 21 days of service, the case will proceed without their participation in the outcome of the case.

Voluntary Relinquishment: The Respondent may also elect to voluntarily relinquish the license. The voluntary relinquishment, if accepted by the Board, would constitute disciplinary action if there is an open complaint.

Key Timelines

  • 180 days to investigate a complaint and recommend findings to probable cause panel
  • 20 days for Subject to respond to complete investigative file following request for file
  • 21 days to respond or file election of rights
  • 45 days to refer case to DOAH following election of formal hearing
  • 30-70 days in which Administrative Law Judge sets hearing date
  • 6-year statute of limitation
  • 30 days to appeal final order


Unlicensed Activity

MQA is charged with stopping unlicensed activity – commonly called ULA. Those individuals who perform regulated health care activities without the proper licensing in Florida are usually committing a felony-level crime. Treatment by an unlicensed provider is dangerous and could result in further injury, disease or even death. When practitioners pay their licensing fees, $5 is designated specifically to combat unlicensed activity. –Section 456.065(3) F.S.

Complaint review and investigation occurs in the central Tallahassee offices of the Department of Health and at 11 regional offices around the state. MQA can issue cease-and-desist notices and fines against unlicensed providers, but the Division relies on partnerships with local law enforcement for criminal prosecution.

In fiscal year 2015-2016, MQA:

  • Received 1,475 complaints.
  • Issued 628 cease and desist orders.

ULA investigation

ULA investigators perform the “legwork” to establish probable cause. Investigators work undercover, do surveillance, research business records, conduct interviews, and ultimately serve notices.

Many investigations are conducted jointly with law enforcement. Often ULA investigators serve on special task forces. Law enforcement uses evidence gathered by DOH investigators for arrest and prosecution of unlicensed providers.

MQA depends on its partnerships with other state and federal agencies and local authorities to stop unlicensed activity. But in the end, it’s the people in the neighborhoods who are victimized and who see the activity.

If you see unlicensed activity, please report it by calling 1-877-HALT-ULA, emailing HALTULA@flhealth.gov or visiting the MQA website. www.FLHealthSource.gov.

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