Last summer a Court in Tallahassee overruled the Department of Health and “quashed” or invalidated an Emergency Suspension Order of a Florida nurse’s license.  In otherwords, DOH suspended a nurses license on an emergency basis and an appeals court reinstated her license.  How did this happen?

I.                 Background

Under Florida law, the Department of Health can issue an order on an emergency basis of a health care provider’s license.  The DOH must state in its Emergency Suspension Order (ESO) sufficient facts to show that the practitioner is an imminent threat to the health and safety of the public.  Due process, however, requires that the DOH give the licensee a hearing soon after the ESO is issued.  In the meantime, the health care provider is without a license until their hearing.

ESOs are a drastic measure and in most instances warranted.  Most discipline by the DOH is accomplished by filing an Administrative Complaint (AC).  An AC does not result in the automatic suspension of the license, an ESO does.

Generally, speaking DOH issues ESO’s which are upheld by the appellate courts.  Interestingly, in this case the First District Court of Appeals sitting in Tallahassee did not.

II.               Facts

In the case of Kelli A. Burton, RN vs. Department of Health, 116 So.3d 1285 (Fla.1^st DCA 2013), the nurse who received an Emergency Suspension Order suspending her license appealed the order and won.

Some facts that make this case interesting are that DOH alleged that the nurse abused an active opioid drug for many years; received the drug through a doctor with whom she once had a romantic relationship and who wrote her multiple prescriptions for many years, often without an exam; filled prescriptions for the drug more than 130 times in the 22-month period leading up to a sheriff’s department investigation; admittedly filled these prescriptions at different pharmacies so that she could “avoid detection”; and other such similar allegations.

DOH issued a suspension of the nurse’s license based on these and other allegations.

The nurse hired an attorney and appealed directly to the First District Court of Appeal.

III.              Issue

On appeal, the Court had to decide whether the ESO was issued properly by DOH and whether the Order itself was sufficient?  Also, the Court looked at whether the ESO was the least restrictive option available to DOH in accomplishing its mission of protecting the public?

IV.             Decision of the Court

The Court recognized that DOH under the law was entitled to suspend a health care professional’s license on an emergency basis, pending a full hearing later, but in doing so “it must meet strict requirements.”

The Court noted “...the Department must show the ESO to be necessary and narrowly tailored, i.e., ‘why less harsh remedies' would have been insufficient to stop the harm alleged.”  In otherwords, the Court is saying that DOH in it’s Emergency Suspension Orders must go into detail (probably great detail) as to why less harsh remedies are not sufficient.

The Court even said the DOH should have detailed “why a host of other options at its disposal would be insufficient.”

Because this involved allegations of abuse of drugs, the Court opined that DOH could have ordered regular drug testing through the Intervention Project for Nurses (IPN) program.

V.               Dissent

Interestingly, two Judges on the appellate court dissented with the majority opinion.  Judge Osterhaus wrote “With respect for my colleagues’ views, I do not see ‘a host of other options’ for the Department to deal with nurses who have a multi-year history of abusing painkilling opioids and will not accede to drug screening or intervention efforts.  Petitioner has shunned accountability.”

VI.             My Thoughts

This is a remarkable decision.  First the Department of Health has an important job to do, i.e., protect the public.  The Intervention Project for Nurses (IPN) is a unit of the Board of Nursing.  The facts seem to indicate the nurse had a history of drug issues and that she had been uncooperative with IPN.

Enter the First District Court of Appeals, the majority of whom is stating in its opinion DOH should have provided a detailed summary in its ESO why other options won’t work.  ESO’s are meant as an interim solution addressing immediate dangers until a full hearing can be held.

For DOH, this will mean the painstaking task of setting forth more detail in ESO’s as to why other methods are not appropriate.  It will also mean a lot of second-guessing of DOH by the Court into governmental functions of DOH.  Remember, the three branches of government are “co-equal” meaning they really aren’t supposed to perform the functions of the other branches. Is the Court really prepared to second guess the work of DOH, IPN, and the Boards?

For health care professionals, like nurses, physicians, dentists, pharmacists, and all other licensed health care providers in Florida who have their license suspended by way of an Emergency Suspension Order or ESO because of allegations of drug or alcohol abuse there may be a broader avenue to appealing an ESO on the grounds DOH did not use the least restrictive method to protect the public.  Filing an appeal directly to the District Court of Appeal may be the quicker method of reversing or “quashing” as lawyers say, an Emergency Suspension Order involving allegations of drug/alcohol abuse.  Each case is different so this may not be true across the board, but this court decision indicates the Court is open to reversing ESO’s in some situations.

VII.            Summary

In cases involving Emergency Suspension Orders and allegations of drug or alcohol abuse by licensed health care providers the First District Court of Appeal may in some cases reverse or quash the ESO if the Department of Health does not state with particularity the reasons why less restrictive options were not adequate.

 If you have received an Emergency Suspension Order, Administrative Complaint, or received a letter indicating that your license as a health care provider is being investigated it is important to immediately contact an experienced Florida to health care attorney to review your case.  For a free, no obligation consultation, and to set up a telephone appointment contact

Jeff Howell at 850-877-7776.