FROM FIRST GASP TO FINAL ORDER

1. FROM FIRST GASP TO FINAL ORDER Christine Whitney, Esq. Christine C. Whitney, P.A. 225 West 5th Street Jacksonville, Florida 32206

2. Activities that will result in discipline • At work - Unprofessional Conduct • Outside work – Crimes, Misconduct • By statute (Fl. Stats. Chapter 464) • By regulation (Fl. Admin. Code 64B9-8)

3. WHAT SHOULD YOU DO? • Some nurses do not realize that their conduct outside the work setting may get them in trouble with the licensing Boards. • Practice Tip: Education is key. Everyone knows nurses can’t abuse their position of trust at work. Some don’t realize that lewd conduct in a parking lot will have the same effect.

4. Unprofessional ConductFl. Admin. Code 64B9-8.005 • Inaccurate charting • Misappropriating drugs, supplies or equipment • Leaving a nursing assignment without advising licensed nursing personnel • Stealing from a patient • Violating the integrity of a medication administration system or an information technology system

5. Unprofessional ConductFl. Admin. Code 64B9-8.0005 • Falsifying or altering of patient records or nursing progress records, employment applications or time records • Violating the confidentiality of information or knowledge concerning a patient • Discriminating on the basis of race, creed, religion, sex, age or national origin in the rendering of nursing services as it relates to human rights and dignity of the individuals

6. Unprofessional ConductFl. Admin. Code 64B9-8.005 • Engaging in fraud, misrepresentation, or deceit in taking the licensing exmination • Impersonating another licensed practitioner or permitting another person to use his certificate • Providing false or incorrect information to the employer regarding the status of a license • Testing positive for any drugs when the nurse does not have a prescription for such drug

7. Unprofessional ConductFl. Admin. Code 64B-8.005 • Practicing beyond the scope of the licensee’s license, educational preparation or nursing experience • Using force against a patient, striking a patient, or throwing objects at a patient • Using abusive, threatening or foul language in front of a patient or directing such language toward a patient

8. Activities that will Result in Disciplinary ActionCrimes and MisconductFl. Stats. 464.018 • Obtaining or renewing a license by bribery, knowing misrepresentation or through an error of the department or the board. • Having a license revoked, suspended or denied by the licensing authority of another state • Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of nursing

9. Activities that will Result in Disciplinary ActionCrimes and MisconductFl. Stats. 464.018 • Being found guilty, regardless of adjudication of any of the following: • Theft, robbery, burglary • Fraudulent practices • Lewdness and indecent exposure • Assault, battery • Child/elder abuse, abandonment, neglect • Domestic violence

10. Activities that will Result in Disciplinary ActionCrimes and misconductFl. Stats. 464.018 • Engaging or attempting to engage in the possession, sale or distribution of controlled substances other than for legitimate purposes. • Being unable to practice nursing with reasonable skill and safety by reason of illness or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as the result of any mental or physical condition.

11. WHAT SHOULD YOU DO? • If a nurse’s license is at stake, representation by a competent attorney is essential. • Don’t let your nurse client speak directly to the investigator. • After a face-to-face meeting with the nurse, prepare the 20-day letter, being as factual as possible. • Practice Tip: Have the nurse sign off on the facts.

12. Losing Your Job • Not to be confused with disciplinary action against your license • E.g. if a nurse is written up by a hospital employer for inaccurate dispensing, administration or reporting of controlled substances, he or she may be fired AND reported to the Board of Nursing. • There are two separate fires to fight – employment and licensure.

13. Losing your Job • Challenging loss of employment or demotion by union action, reports to the Equal Employment Opportunity Commission (EEOC) or court challenges is entirely separate from the process described in this presentation. • You may need an attorney versed in labor law to handle an employment discrimination claim or other claim against your employer.

14. WHAT SHOULD YOU DO? • Help your client decide on the importance of the job. Other jobs can be found, other licenses can’t. • Sometimes the job is a priority; in a serious situation it may be a casualty. • If he/she wants to challenge a job termination, make sure you are competent to handle an employment issue.

15. The Board of Nursing • The legislative purpose of the Nurse Practice Act is to ensure that every nurse practicing in Florida meets minimum requirements for safe practice. Nurses who fall below minimum competency, or who otherwise present a danger to the public, shall be prohibited from practicing. Fl. Stats. 464.003

16. Reports to the Board of Nursing • In Florida, a nurse must report to the DOH Board of Nursing any person whom he/she knows is in violation of the Nurse Practice Act; however, if the reporter verifies that such person is actively participating in a board-approved program for the treatment of a physical or mental condition, he/she is required to report such person only to an impaired professionals consultant.Fl. Stats. 464.018(k)

17. WHAT SHOULD YOU DO? • In Florida, the Board-approved program for the treatment of physical and mental conditions, especially alcohol and drug use, is the Intervention Project for Nurses, or IPN. • Practice Tip: If your client has a drug, alcohol or behavior problem that has been reported to the Board, you should seriously consider voluntary admission to the program. • Practice Tip: The Board is most likely to order participation.

18. Reports to the Board of Nursing • The Board of Nursing must respond to reports of misconduct by a nurse. It cannot simply ignore such reports. Fl. Stats. 456.073 • The complaint must be • In Writing • Signed by the complainant • Contain ultimate facts that show a violation

19. Reports to the Board of Nursing • The Board may investigate a complaint even if the complainant withdraws it. • It may investigate an anonymous complaint if it is in writing and legally sufficient and the alleged violation is substantial. Fl. Stats. 456.073(1)

20. The Board’s Initial Response • When the investigation of a nurse is begun, the department must promptly furnish the him/her, or their attorney, a copy of the complaint or document that resulted in the investigation. • The nurse may submit a written response to the complaint within 20 days after receiving it. • The nurse’s response shall be considered by the probable cause panel. Fl. Stats. 456.073(1)

21. WHAT SHOULD YOU DO? • This is your best opportunity – don’t waste it! • Write your 20-day letter as if it were the only document the Board is going to see. • Put in all the mitigating facts you have. • It’s not an argument. Keep it factual. • Don’t blame the complainant.

22. The Board’s Initial Response • Prior to any review by the Probable Cause Panel, an initial investigation is conducted to determine whether the complaint is legally sufficient. • Staff have 6 months to investigate all legally sufficient complaints. Fl. Stats. 456.073(1) • E.g. complaint that practitioner is senile found not legally sufficient where practitioner has retired.

23. The Initial Investigation • What happens at the initial investigation: • Investigator reads nurse’s 20-day response and reviews any supporting statements • May speak to the complainant • Makes an initial report and recommendation • If complaint is clearly without merit, or trivial, investigator recommends that the case be closed.

24. The Initial Investigation Case Closed • If the case is dismissed at this point, prior to a finding of probable cause, the report is confidential and exempt from disclosure as a public record. • The Department may also recommend a letter of guidance, although a person may only have one. (No second letters of guidance.) Fl. Stats. 456.073(2)

25. The Initial InvestigationCase Forwarded for Action • If the initial investigation results in a finding that the case has merit, the case is forwarded to the Probable Cause Panel. • The Probable Cause Panel may find that there is probable cause to support a violation of the law; or • It may dismiss the case; or • It may issue a letter of guidance.

26. The Probable Cause Panel • The Probable Cause Panel receives the department’s investigative report and generally has 30 days to determine whether there is probable cause for a determination that the licensee has violated the laws and rules regulating the profession. Fl. Stats. 456.073(3), (4). • The Probable Cause Panel consists of at least one consumer member of the community and at least one licensed nurse.

27. The Case Goes Forward • If the Probable Cause Panel finds there is probably a violation, an Administrative Complaint will be generated. • The Complaint is a formal document that accuses your client of specific misconduct under the Nurse Practice act. • You will receive a copy, together with explanations of what to do next.

28. WHAT SHOULD YOU DO? • In Florida, the nurse receives an “Election of Rights” form that determines the future course of the proceeding. • Discuss these options carefully with your client, because there is no going back!

29. The Florida Options(Election of Rights) • There are 3 options: • Option #1 • “I do not dispute the allegations of fact in the Administrative Complaint, but do wish to be accorded a hearing at which time I will be permitted to submit oral and/or written evidence in mitigation of the complaint to the Board.”

30. Election of Rights • Option #2 • I do not dispute the allegations of fact contained in the Administrative Complaint and waive my right to object or to be heard. I request that the Board enter a final order pursuant to Fl. Stats. 120.57.

31. Election of Rights • Option #3 • I do dispute the allegations of fact contained in the Administrative Complaint, and request this to be considered a petition for formal hearing pursuant to Fl. Stats. 120.569 and 120.57(1) before an Administrative Law Judge appointed by the Division of Administrative Hearings. I specifically dispute the following paragraphs of the Administrative Complaint:

32. Election of Rights • There is usually also the drastic option of relinquishment of licensure. • This is a career-ending event, at least for a period of time. • Practice Tip: Talk to your client in detail before he/she chooses this option.

33. WHAT SHOULD YOU DO? • Talk to the nurse about whether he/she disputes the allegations of fact set forth in the Administrative Complaint. • If you dispute the allegations of fact, there is only one option: a formal administrative hearing before an ALJ. • Practice Tip: This is expensive and time consuming. Talk to your client about the evidence in support of his/her position.

34. WHAT SHOULD YOU DO?If You Don’t Dispute the Facts • If your client doesn’t reasonably dispute the facts, i.e. the nurse’s conduct happened pretty much the way it is set forth in the Administrative Complaint, you have two choices: • Choice #1: An informal hearing before the Board to present mitigating evidence; or • Choice#2: Waive the hearings and ask the Board to enter a final order.

35. WHAT SHOULD YOU DO?Informal Hearing • Choice #1 - Presentation of mitigating evidence before the Board. • Practice Tip: This can be a good option if your client is presentable and well spoken, has something sensible to say and can afford travel to the hearing. • Practice Tip: Don’t do this if it will just be a repetitious waste of the Board’s time. Make sure your client is sober, appropriately dressed and well groomed.

36. WHAT SHOULD YOU DO?Without a hearing • Choice #2 – Waive the hearings and ask the Board to enter a final order. • Practice Tip– If all of your evidence has been entered into the record, this can be a good option. • Practice Tip – In the real world, you may get a settlement offer from the Board, which can sometimes be negotiated in your client’s favor.

37. WHAT SHOULD YOU DO?Informal Hearing • If you elected to present mitigating evidence at a hearing before the Board, you will receive notice of time and place of the meeting and ultimately, an agenda showing exactly at what point your hearing will take place. • Practice Tip: Don’t attend without your client. • Practice Tip: Plan to keep it short. Long, elaborate statements read into the record tend to aggravate Board members.

38. WHAT SHOULD YOU DO?Settlement • If you elected to have the Board enter a final order without a hearing, you will likely receive a proposed Settlement Agreement, or settlement phone calls from the Board’s counsel. • Practice Tip: Talk to your client about settlement. • Practice Tip: Call the Board’s attorney and talk to him about settlement.

39. Settlement of Your Case • If the case is settled, you will receive a written Settlement Agreement for your client to sign. • The Board must approve the terms of settlement. This is usually done at a meeting of the Board. • The Board may, but need not, approve the Settlement Agreement. • Practice Tip: Attorney and/or client may attend. This is good practice in case the Board has any questions.

40. The Intervention Project for Nurses • In Florida, settlement of any case where drug or alcohol issues have been reported will almost always involve requiring the nurse to participate in Florida’s alternative to discipline program, the Intervention Project for Nurses (IPN) • Practice Tip: Have your nurse look at IPN’s website.

41. WHAT SHOULD YOU DO?Formal Hearing • If you elected a formal administrative hearing, review or learn the evidentiary rules that will be used. In Florida, all “relevant and reliable” evidence is admissible. • These hearings are usually conducted pursuant to the State’s Administrative Procedure Act. Fl. Stats. Chapter120. • Make sure you know your discovery rights – they may be limited.

42. WHAT SHOULD YOU DO?Formal Hearing • Prepare your client for the hearing, especially for cross examination. • Practice Tip: The hearing forum is not a comfort zone for many nurses • Practice Tip: Dress and demeanor count. Try to avoid biker attire or other extremes. • Practice Tip: Respect for the Board is extremely important! Remind your client to be courteous and respectful, even when challenged.

43. Recommended Orders • After hearing the matter and deliberating, the Board will issue a Recommended Order. Fl. Admin. Code 28-106.217 • In Florida, this is within 30 days after the hearing or receipt of the transcript, whichever is later. • If a nurse requests to make post-hearing submissions of documents or arguments, they waive the 30-deadline.

44. Exceptions to the Recommended Order • In Florida, objections to the findings of fact and conclusions of law contained in the Recommended Order are called “Exceptions.” Fl. Admin. Code 28-106.217 • Exceptions must be filed within 15 days of the entry of the Recommended Order.

45. WHAT SHOULD YOU DO?Filing Exceptions • Exceptions must identify the disputed paragraph of the Recommended Order and give a legally based exception. • Practice Tip: Make sure you have reasonable grounds for filing an exception. The fact that you (or your client) disagree with the Board is not a legal exception.

46. Final Orders • When all time periods have expired and the Board has ruled on any exceptions, the Board will issue its Final Order. • It contains the law, the facts, the penalties, and in Florida, it also imposes costs of the proceeding on the nurse.

47. Disciplinary Actions • Depending on the violation, discipline can vary from mild to severe, E.g. • Entry into the Intervention Project for Nurses (IPN) • Education in ethics, record keeping, cultural sensitivity, etc. • Fines • Monitoring • A period of suspension • Permanent suspension

48. The Intervention Project for NursesIPN • Florida’s Intervention Project for Nurses (IPN) was established in 1984 by the legislature. • It is an alternative to discipline program. • It provides close monitoring of nurses with drug, alcohol and behavior problems. • Practice Tip: Clients are sometimes resistant, but the Florida Board will likely insist on IPN participation if there is a drug or alcohol violation.

49. How does IPN work? • Evaluation by a psychologist • Signing a contract • Inpatient treatment • AA participation • Group therapy • Individual psychological counseling • Random drug screens • Typically 3 to 5 years

50. IPN Keeps Nurses at Work! • IPN professionals decide if the nurse is safe to work • Many nurses are allowed to work, as long as they keep their IPN commitments. • If they don’t meet their IPN commitments, IPN reports them to the Board and the Board takes action.