Overcoming License Suspension and Revocation Pending Appeal

By: Lance O. Leider, J.D.

If you are a dentist or other licensed health professional whose license has been recently revoked or suspended, there may still be hope. Ordinarily, you must immediately stop practicing or you risk being prosecuted for unlicensed practice, a felony. Although this blog deals with Florida law, similar relief may be available in other states, too.

One of the hardest things about having a license suspended or revoked is that it immediately cuts off the licensee’s sole source of income. If you have a thriving practice, this will usually destroy any value your business has. Without income, paying your bills will be a challenge, much less the cost to fight the legal action or to appeal.

Even if you appeal the decision and win the appeal, you will be out of practice for many months, often more than a year, before your license is reinstated. You still have all the lost income and business, and you never get this time and money back.

Fortunately, Florida law provides an avenue for temporary relief from the adverse decision, so that you may retain your license and practice your profession pending appeal of your case. This legal process is called a writ of supersedeas.

What is Supersedeas Relief?

Supersedeas relief is a form of relief granted by a reviewing court (court of appeal) that suspends the enforcement of the judgement of the lower court (or agency) while the underlying issues are decided on appeal. What this means is that you can have the action to revoke or suspend your license put on hold while you appeal the decision of the Department of Health (DOH).

This relief is authorized in two separate places in Florida law: Section 120.68(3), Florida Statutes, and Rule 9.190(e)(2)(C), Florida Rules of Appellate Procedure. Both of these provisions state that a reviewing court can grant a stay of enforcement of the revocation or suspension of a license pending review.

The relief is not automatic, however. Both provisions specifically prevent supersedeas from being granted if the licensee poses a probable threat to the health, safety or welfare of the state. Fortunately, it is the burden of the agency whose order is being reviewed to prove that there is a danger to the public.

Additionally, the Appellate Rule permits you to ask for expedited review. (Which of course is recommended because you want to be back to work as quickly as possible, right?) This means that the agency only has ten (10) days to file its opposition. This shortened time period may make it difficult for an overworked government attorney to file on time or to produce quality opposition.

Steps to Seeking Supersedeas Relief.

1. File an appeal of the Final Order revoking or suspending your license with the appropriate agency and a copy to the appellate court. Be sure to follow all appellate rules and instructions.

2. File a Petition for Expedited Supersedeas Relief with the appellate court at the same time.

3. If you receive a favorable ruling from the court, deliver that order to the licensing agency (in this case, the DOH) and request that your license be reinstated immediately.

Other Considerations.

It is important to note that this form of relief will not make the underlying action disappear. Your return to practice will only be temporary, unless you win the appeal. You will still have to show the licensing agency did something contrary to law when it imposed the discipline in order for the appellate court to overturn the decision. This is not often an easy task. Furthermore, the law only permits a thirty (30) day window in which to appeal the agency’s decision, after which your rights are lost and you are very likely stuck with the decision.

Appeals Are Very Technical and Require a Thorough, Specialized Knowledge of the Law.

What few people understand is that appeals are very technical and have complex, procedural rules that you must follow. An appeal of an agency final order is not the place to argue about the facts of your case or to try to prove different facts.

An appeal is all about the law and the court cases that have interpreted the law. Unless the agency (in this case your board) made a legal error and violated the law, you won’t win.

For an appeal, a person needs an attorney. To prevail on an appeal, you must have a detailed knowledge of the correct, relevant court cases and you must be able to argue these in the proper form in legal briefs.

There are many other procedural steps you must follow in an appeal that only a good appellate attorney will know. To attempt to do this yourself is not advisable.
Contact Health Law Attorneys With Experience Handling Licensing Issues.

If you have had a license suspended or revoked, or are facing imminent action against your license, it is imperative that you contact an experienced healthcare attorney to assist you in defending your career. Remember, your license is your livelihood, it is not recommended that you attempt to pursue these matters without the assistance of an attorney.

The Health Law Firm routinely represents physicians, dentists, nurses, medical groups, clinics, and other healthcare providers in personal and facility licensing issues.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: Lance O. Leider is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

 

Preserve Your Dental License – Pretrial Intervention and Drug Court as Alternatives to Conviction, Nolo Contendere, or Adjudication Withheld

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

As if being faced with the consequences of criminal charges wasn’t frightening enough, physicians, nurses, dentists, psychologists and other health professionals have the added danger of having their licenses disciplined or revoked if they plead nolo contendere or guilty to a criminal charge

Whether you are applying for a new license to practice or have been practicing for years you are under an obligation to report “convictions” and “pleas” to the board that governs your profession.  The normal definition of a “conviction” is not the same as the Department of Health (DOH) and the various professional boards use.

Pursuant to Section 456.072, Florida Statutes, licensed healthcare providers can be disciplined for all of the following dispositions of a criminal case:

- Actual conviction (by a judge or jury)

- Entering a plea of guilty

- Entering a plea of nolo contendere 

- Adjudication Withheld

Click here to see Section 456.072, F.S.

That’s right, adjudication withheld and nolo contendere pleas are all treated the same as a conviction as far as your professional license is concerned.

While these alternative means of disposing of a criminal case may be beneficial or expedient for the average citizen, healthcare practitioners have to think of what those dispositions mean for their license.

Don’t give up hope yet though, there is an alternative that will permit your criminal case to be favorably disposed of and allow you to potentially avoid discipline to your professional license.  That alternative is pretrial intervention (PTI) programs, sometimes referred ti as “PTI” or “PTIO.”

What Is Pretrial Intervention?

PTI is a diversion program for those accused of certain types of crimes that, if successfully completed, results in the criminal charges being dismissed.  The best part of this option is that it does not require the defendant to enter any plea.

Individuals who are enrolled in PTI programs are on a sort of quasi-probation.  The criminal case against them is continued (put on hold) while the PTI program is running.  Typical conditions of PTI supervision require periodic reporting, drug screening, mental health or substance abuse counseling, community service, and payment of supervision fees.

Who Is Eligible For Pretrial Intervention?

Eligibility for entry into PTI programs is governed by Sections 948.08 and 948.16, Florida Statutes.

To see Section 948.08, F.S., or Section 948.16, F.S., click the links.

Generally, any first time offender, or any person who has previously been convicted of not more than one nonviolent misdemeanor or third-degree felony is eligible for PTI so long as the following requirements are met:

1. The defendant has voluntarily agreed to participate in PTI,

2. Consent of the victim,

3. Consent of the prosecutor, and

4. Consent of the judge who presided at the initial appearance.

Should the offense for which the practitioner is facing charges be related to controlled substances, the statute offers additional eligibility criteria:

1. Those charged with nonviolent felonies and are identified as having a substance abuse problem; or,

2. Those who are charged with felonies of the second or third degree for purchase or possession of a controlled substance, or obtaining a prescription by fraud; and

3. Who have not been previously convicted of a felony, nor admitted to a felony PTI program.

Similar programs are available for those having substance abuse problems who are charged with nonviolent misdemeanor offenses, or those who are charged with misdemeanor possession of drugs or alcohol, prostitution, or possession without a prescription.

Conclusion.

PTI may seem like more of a hassle for minor offenses than simply accepting a plea or adjudication withheld.  This may be true for the average person, but licensed health professionals have to take into account the professional consequences that come from a conviction, or other similar dispositions of the case. These include actions against their license, reports to certification bodies, reports to health facilities in which they are licensed and reports to the National Practitioner Data Bank (NPDB) or other data banks.

The most important thing to remember about PTI is successful completion of the program results in the charges being dismissed!

This means you don’t have to report anything to your board and there will be no discipline on your license.  Furthermore, you can later apply to have the arrest expunged (if you are otherwise eligible).

The benefits of entry into a PTI program by a healthcare practitioner cannot really be overstated.  The disciplinary process is often long and extremely costly.  The effects of discipline on your license can follow you for the remainder of your career and is publicly available to anyone who cares to look.

Contact Health Law Attorneys Experienced in Handling Licensure Matters.

If you have been arrested, it is strongly recommended that you retain an experienced healthcare attorney who can advise you and your criminal counsel as to the effects a potential outcome could have on your license.

The Health Law Firm routinely represents physicians, pharmacists, nurses, and other healthcare practitioners in licensure matters.  We frequently consult with criminal defense attorneys regarding defense strategies tailored to minimizing criminal sanctions while at the same time preserving the practitioner’s license.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:

Section 948.08, Florida Statutes

Section 948.16, Florida Statutes

Section 456.072, Florida Statutes

About the Authors: Lance O. Leider is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone:  (407) 331-6620.

George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.

Copyright © 1996-2012 The Health Law Firm. All rights reserved.