Emergency Suspension Orders from DOH or AHCA: Testing Positive and What to Do About It!
In a typical case, a nurse or other licensed health care professional tests positive for a controlled substance and the Employer alerts either AHCA or DOH. Usually, it happens as a result of either (1) a pre-employment drug screen or (2) a random drug test done by the Employer.
When the results come back positive, the licensee is given 48 hours to produce a lawful prescription. If you cannot produce a lawful prescription then what usually follows is a letter from the DOH Investigator indicating that “you may have violated your Practice Act” and giving you 20 days to either submit a written response or schedule and interview with the Investigator.
A. The Law
The authority of the Florida Department of Health to suspend your license on an emergency basis is found in Section 456.074(3), Florida Statutes, which states:
“The department may issue an emergency order suspending or restricting the license of any health care practitioner as defined in s. 456.001(4) who tests positive for any drug on any government or private sector preemployment or employer-ordered confirmed drug test, as defined in s. 112.0455, when the practitioner does not have a lawful prescription and legitimate medical reason for using such drug. The practitioner shall be given 48 hours from the time of notification to the practitioner of the confirmed test result to produce a lawful prescription for the drug before an emergency order is issued.”
This law gives DOH the authority to suspend your license by way of an Emergency Suspension Order (ESO) which is effective the date in which is its filed with the DOH Agency Clerk’s Office in Tallahassee, not when the nurse or other health care professional receives the ESO. Practicing after the date of the ESO constitutes the unlicensed practice of your professional and could possibly result in criminal charges.
B. What Should You Do?
If you receive an ESO and are practicing you should cease practicing immediately. Failure to do so could expose you to additional legal charges. Next you should consult with an experienced health care attorney to discuss the process for getting your suspension lifted or challenging the allegations. This process is difficult but it is possible to try and get your license back. Keep all of your documentation including all correspondence from DOH and your employer. Any relevant documents, including the Emergency Suspension Order itself should be given to the attorney for review.
If you have received an Emergency Suspension Order or Administrative Complaint against your license from AHCA or DOH it is important to seek experienced legal advice before moving forward. I represent licensed health care professionals and providers throughout Florida. More information can be found at www.floridahealthcareattorney.com or contact me directly at 850-877-7776. The initial consultation is free an there is no obligation.