Professional Licensure
Assessments of Costs and Fees in License Disciplinary Actions
The Second District Court of Appeals in 1Georges v. Dept of Health, Board of Nursing, Fla. L. Weekly D2388 (Fla. 2d DCA Nov. 2, 2011), reversed and remanded the imposition of a penalty greater than that recommended by the Administrative Law Judge and the imposition of attorneys’ fees against a licensee by the Board of Nursing. The Court found that the Department of Health had failed to establish any aggravating factors in the record of the case at DOAH that could serve as a basis to allow the Board to increase the ALJ’s recommended penalty and that a claim for attorneys’ fees must be supported by competent, substantial evidence provided by the attorney performing the services and by an expert as to the value of those services. The Department did not provide an affidavit from a Department attorney verifying the amount of time spent on the case or the amount of the fees. The Department also did not provide an affidavit from an outside attorney to verify the reasonableness of the time spent on the matter or the amount of the fees. The Court held that the lack of evidence in the record regarding aggravating circumstances and the failure to provide competent and substantial evidence as required by courts in determining an award of attorney fees (even as costs pursuant to §456.072(4), Florida Statutes) was a denial of due process amounting to a fundamental error that can be raised for the first time on appeal. (The Department of Health has reportedly filed a Motion for Reconsideration.)
Regulation of Pain Management Clinics and Physicians
For those of you representing physicians working in registered pain management clinics, last month both the Board of Medicine and the Board of Osteopathic Medicine voted to amend their rules regarding the training requirements for physicians working in registered pain management clinics. In response to separate Petitions for Variance or Waiver each Board voted to extend the currently expired deadline for certain physicians to comply with training requirements by completing 40 hours of live (in-person) pain management CME in specific topics. The Boards’ respective rules (64B8-9.0131, FAC and 64B15-14.0051(6), FAC) had required completion of such hours within six months of the effective dates of each rule. The time frames in each rule had expired and many physicians have not yet been able to find and complete the required coursework. The rule amendments will extend the deadline to July 1, 2012.
Reported By: Allen R. Grossman and Michael L. Smith