Representing Nursing Homes

Michael B. Kornhauser, Esq.

Fuerst Ittleman David & Joseph

Suntrust International Center

One Southeast Third Avenue

Suite 1800

Miami, Florida 33131

mkornhauser@fidjlaw.com

(305) 350-5690

www.fidjlaw.com

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  • Michael B. Kornhauser

Understanding the Basics of a Florida Department of Health Investigation of a Nursing Home Employee



In a prior blog post, I discussed nursing home investigations by the Florida Department of Children and Families. In this blog, I discuss the mechanics of a Florida Department of Health Investigation implicating one or more nursing facility staff members.

Background

While the Florida Agency for Health Care Administration (“AHCA”) is responsible for, among other things, the licensure and regulation of skilled nursing facilities, the Florida Department of Health (“DOH”) is responsible for the regulation of various licensees, including those commonly affiliated with or employed by skilled nursing facilities. Some of those licensees include, but are not limited to, Advanced Practice Registered Nurses, Certified Nursing Assistants, Certified/Registered Respiratory Therapists, Clinical Social Workers, Dietitians/Nutritionists, Licensed Practical Nurses, Medical Doctors/Osteopathic Physicians, Nursing Home Administrators, Occupational Therapists, Physical Therapists, Physician’s Assistants, and Registered Nurses. For a complete list of regulated health practitioners, visit the Florida Department of Health website.


Given the relationship between skilled nursing facilities and licensed staff members, along with potential implications of an employer nursing facility in the event of an adverse finding, it’s important that nursing facilities understand the mechanics of a DOH investigation involving one or more of its employees.

Commencement of an Investigation

The DOH is obligated to investigate any complaint, so long as the complaint is in writing, signed by the complaining party, and is legally sufficient. In some instances, the DOH may accept a confidential complaint. A complaint is legally sufficient if it contains ultimate facts that show a violation of Chapter 456, Florida Statutes, a violation of any of the practice acts (e.g. the Nurse Practice Act) relating to professions regulated by the DOH, or a violation of any rule adopted by the DOH or governing regulatory board (e.g. Board of Nursing). The DOH may also request additional supporting documentation from the complaining party to reach a preliminary decision concerning legal sufficiency.


Often times, complaints are initiated by patients, family members, or other agencies, including the Agency for Health Care Administration or the Department of Children and Families. However, even if a complaining party subsequently decides to withdraw a previously filed complaint, the DOH may still proceed with an investigation. The DOH may also initiate investigations on its own if it has reasonable cause to believe that a licensee has violated a statute or rule.

Notice of an Investigation to the Licensee

A licensee is typically informed of a DOH investigation through written correspondence from the DOH. The initial correspondence usually includes, among other things, a case number, the license number at issue, a statement that the licensee may submit a written response or call the investigator to schedule an interview (more on this point below), a request for the licensee’s curriculum vitae, and details concerning the nature of the complaint, including the source of the underlying allegations. However, if the DOH considers the matter to involve a possible criminal offense, the investigation may be conducted without notice to the licensee.


In circumstances where the allegations merely establish an initial offense of a minor violation, as an alternative to commencing a formal investigation, the DOH may simply issue a notice of noncompliance, instructing the licensee to cure any alleged offending conduct within fifteen (15) days. A licensee’s failure to comply with a notice of noncompliance may result in the institution of disciplinary proceedings.

Responding to the Investigation

While a licensee is typically given the opportunity to provide a written response to the underlying allegations or sit for an interview, caution should be exercised in both circumstances. The reason being: Anything a licensee says can be used against him or her. Remember, the DOH is investigating circumstances which, if proven, could strip a licensee of his or her license. That equates to the potential loss of a licensee’s ability to earn a living. Therefore, DOH investigators should be treated like police officers. A licensee has no obligation to issue a written response or sit for an interview with a DOH investigator. Instead, a licensee should consult with an attorney to determine the best approach in responding to an investigation.

Timing Considerations / Investigative Report

The DOH must complete the report of its initial investigative finding and recommendations concerning the existence of probable cause within six (6) months after its receipt of the complaint. However, a delay by the DOH in this regard is generally viewed as “harmless error” in a subsequent disciplinary proceeding. In short, the six (6) month deadline is not a hard deadline and does not operate like a statute of limitations upon which a licensee can rely to defeat a complaint.


Nonetheless, once the investigation is complete, the DOH must submit an investigative report to the Probable Cause Panel of the appropriate regulatory board (e.g. Board of Nursing). The report must contain the investigative finding and recommendations of the DOH concerning the existence of probable cause. If the DOH determines that there is insufficient evidence to support the prosecution of any allegations contained in an initial complaint, the DOH may dismiss the case, or any part thereof. If the DOH dismisses a complaint, the DOH shall provide a detailed report to the appropriate probable cause panel prior to dismissal and a detailed report to the licensee after dismissal.


Even if the DOH dismisses a complaint, whether in whole or in part, the appropriate probable cause panel may still continue the investigation and prosecution on its own.

The Probable Cause Panel

A finding of probable cause is determined through a majority vote by the probable cause panel of the appropriate board (e.g. Board of Nursing). Proceedings of the probable cause panel are confidential and exempt from public disclosure until ten (10) days after probable cause has been found to exist or until the subject of the investigation waives his or her privilege of confidentiality. If no determination can be made based on the information provided, a probable cause panel may make a reasonable request for additional investigative information. The DOH must provide such information within fifteen (15) days. The probable cause panel must make a determination of probable cause or, in lieu of the same, issue a letter of guidance to the licensee, within thirty (30) days after receipt of the final investigative report of the DOH (though the panel may seek extensions of time).


If no such timely determination is made or no letter of guidance is issued, the DOH must make a determination concerning probable cause within ten (10) days after expiration of the probable cause panel’s time limitations. If the probable cause panel finds that probable cause exists, it must direct the DOH to file a formal complaint against the licensee pursuant to Chapter 120, Florida Statutes, thereby instituting proceedings before the Florida Department of Administrative Hearings (“DOAH”). The DOH may, however, opt against prosecuting the complaint if it determines that probable cause has been improvidently found by the panel. In such cases, the DOH shall refer the matter to the appropriate board, which can determine whether to file a formal complaint and prosecute the complaint pursuant to Chapter 120, Florida Statutes.


As a final consideration, the DOH, in consultation with the appropriate probable cause panel, must establish a plan to expedite or otherwise close any investigation or disciplinary proceedings that, after one (1) year, have not proceeded to DOAH or are still considered to be open investigations.


Among other things, Michael B. Kornhauser, Esq. represents licensees faced with Florida Department of Health investigations. If you have any questions, feel free to contact him.

Representing Nursing Homes
Discussing legal issues facing skilled nursing facilities throughout the state of Florida.