License Defense for Nurses in Miami: RN, LPN, APRN, and CNA

The first letter you get has a short window to respond, and what you say in it can follow you all the way to a final order. We help you answer the investigation, fight the administrative complaint, and, if the facts are in dispute, take the case to an independent administrative law judge.

Dennis Gonzalez Jr. is a former Miami-Dade prosecutor who has been defending people since 2012. If there is also a criminal case, we handle both together. Our office answers 24 hours a day.

Who Regulates Nurses in Florida

• Registered nurses (RN), licensed practical nurses (LPN), and advanced practice registered nurses (APRN) are licensed under Part I of Chapter 464 of the Florida Statutes.
• Certified nursing assistants (CNA) are certified under Part II of Chapter 464.
• Both are regulated by the Board of Nursing within the Florida Department of Health. The department investigates and prosecutes; the board decides. Chapter 456 adds general rules for every health care profession.

Common Grounds for Discipline

Summarized in plain terms from s. 464.018 (nurses), s. 464.204 (CNAs), and s. 456.072 (all health care practitioners):

• Drugs and impairment: possessing, selling, or distributing controlled substances for other than legitimate purposes; being unable to practice with reasonable skill and safety because of illness, alcohol, drugs, or a mental or physical condition; testing positive on a confirmed pre-employment or employer-ordered drug screen without a lawful prescription and legitimate medical reason; being terminated from an impaired practitioner program for failing, without good cause, to comply with its terms, or for not completing a drug or alcohol treatment program.
• Practice standards: failing to meet minimal standards of acceptable and prevailing nursing practice, including doing things you are not qualified to do by training or experience; improper delegation.
• Unprofessional conduct, as the board defines it by rule.
• Records: making or filing a report or record you know is false, or intentionally or negligently failing to file one the law requires.
• Criminal cases, regardless of adjudication: a crime that directly relates to nursing or the ability to practice; and specific offenses the nursing statute lists by name, including forcible felonies, theft and robbery (Chapter 812), fraud (Chapter 817), lewdness (Chapter 800), assault and battery (Chapter 784), child abuse (Chapters 827 and 39), and abuse, neglect, or exploitation of vulnerable adults (Chapter 415). Committing an act of domestic violence is also a ground. For multistate license holders, any felony under Florida or federal law.
• APRNs: additional prescribing grounds, such as presigning blank prescription forms and prescribing controlled substances outside the course of professional practice.
• Getting the license by misrepresentation, discipline in another state, or violating a board order or a department subpoena.
• Failing to report a conviction or plea to the board in writing within 30 days.
• CNAs: obtaining or trying to obtain certification by misrepresentation or deceit, or violating Chapter 464, Chapter 456, or the board's rules.

How a Complaint Becomes an Administrative Complaint

The process is set by s. 456.073 of the Florida Statutes:

1. The complaint. The department investigates a complaint that is in writing, signed, and legally sufficient, and it can open its own investigation. Withdrawing a complaint does not end the case.
2. Notice and your response. The department must promptly send you or your attorney a copy of the complaint or document that started the investigation. You may submit a written response within 20 days after service. The probable cause panel considers it. If the conduct is a criminal offense, the department can investigate without telling you first.
3. Minor violations. For a first minor violation, the department can send a notice of noncompliance instead of starting discipline. For a first violation for unprofessional conduct with no actual harm to the patient, the statute calls for a citation.
4. Probable cause. A probable cause panel decides whether to move forward. It can issue a letter of guidance instead. If it finds probable cause, the department files an administrative complaint.
5. Confidentiality. The case stays confidential until 10 days after probable cause is found, or until you waive confidentiality.
6. Time limit. In general, the administrative complaint must be filed within 6 years of the incident. That limit does not apply to cases involving criminal actions, diversion of controlled substances, sexual misconduct, or impairment.

If the State Surgeon General (or a designee) finds probable cause to believe you cannot practice safely because of illness, alcohol, drugs, or a mental or physical condition, the department can order you to submit to a mental or physical examination by physicians it designates.

Choosing Your Hearing: The Election of Rights Form

The administrative complaint must tell you that you have the right to request a hearing and to be represented by counsel. It usually comes with a hearing-request form that is commonly called an election of rights. That is the name used in practice; the phrase does not appear in the statutes or the uniform rules. Your choices are generally:

• A formal hearing before an administrative law judge of the Division of Administrative Hearings (DOAH) when you dispute the facts.
• An informal hearing before the board when you do not dispute the facts.
• A settlement, such as a consent order, which must be approved by the department.

Do not miss the deadline. Your papers state the deadline that applies to you. Under Florida's uniform rules for agency hearings, it is 21 days from receiving written notice, unless another law sets a different period, and missing it can waive your right to a hearing.

At a formal hearing, you can present evidence and cross-examine the department's witnesses. The judge issues a recommended order, each side has 15 days to file exceptions, and the board enters the final order. The board cannot reject or change the judge's findings of fact unless, after reviewing the entire record, it states with particularity that they were not based on competent substantial evidence or that the proceedings did not comply with the essential requirements of law. A party adversely affected by the final order is entitled to judicial review in a Florida district court of appeal.

For the full process, see our Administrative Hearings & License Defense page.

Possible penalties for nurses under s. 456.072(2) include a reprimand or letter of concern, a fine of up to $10,000 per count (for fraud or a false or fraudulent representation, the fine must be $10,000 per count), probation, practice restrictions, remedial education, suspension, and permanent revocation. For CNAs, s. 464.204 allows denial, suspension, or revocation of the certification, a fine of up to $150 per count, and probation or restrictions, which can include retraining.

Emergency Suspension

If the agency finds an immediate serious danger to the public health, safety, or welfare, it can suspend or restrict a license by emergency order before any hearing. It must state the specific facts and reasons in writing, and a regular proceeding must also be promptly started. You can seek immediate review of the order.

Under s. 456.074, the department must issue an emergency order suspending the license of a health care practitioner who pleads guilty or no contest to, or is convicted or found guilty of, regardless of adjudication: a felony under Chapter 409 (social and economic assistance, which includes Medicaid), Chapter 817 (fraudulent practices), or Chapter 893 (drug abuse prevention and control), or under the federal controlled substances or Medicare and Medicaid laws the statute lists; certain listed federal offenses relating to the Medicaid program; a felony reproductive battery; or a felony under Chapter 782 (homicide). It also must suspend when a practitioner is arrested for committing or attempting, soliciting, or conspiring to commit certain offenses the statute lists, including sexual offenses, kidnapping and false imprisonment, human trafficking and smuggling, and offenses against children. And it must suspend when the State Surgeon General finds probable cause to believe a licensee committed sexual misconduct that is an immediate danger to the public.

Failed drug test: the department may suspend or restrict the license of a practitioner who tests positive on a pre-employment or employer-ordered confirmed drug test without a lawful prescription and legitimate medical reason. You get 48 hours from notice of the confirmed result to produce a lawful prescription. If you get that call, call us right away.

When There Is Also a Criminal Case

• A plea counts regardless of adjudication. A withhold of adjudication does not protect the license.
• Some offenses are named in the nursing statute itself, including theft, fraud, battery, and child abuse offenses. A plea to a misdemeanor in one of those chapters can still be a license problem.
• Drug cases are a double threat: the criminal charge, plus the impairment and controlled-substance grounds.
• You must report a conviction or plea to the board in writing within 30 days.

Before you accept any plea, the license consequences have to be part of the decision. See our pages on Drug Crimes, DUI, Theft, Domestic Violence, Health Care Fraud, Medicaid Fraud, and Practicing Without a License.

What to Do If the Department of Health Contacts You

1. Do not explain things to the investigator on the phone.
2. Do not send a written response on your own. You have a short window, so call a lawyer right away.
3. Write down the date you received the letter.
4. If it involves a drug test, gather any prescriptions now. The 48-hour clock may already be running.
5. Tell us about any arrest, even an old or unrelated one.
6. Do not resign or surrender your license before you talk to a lawyer.

Want to File a Complaint Against a Nurse?

You can file a complaint with the Florida Department of Health. The complaint must be in writing, signed, and legally sufficient, meaning it states facts showing a violation. The department must keep you and the patient informed of the status, give you a copy of the administrative complaint if probable cause is found, and tell you if it is not found (you can then send more information within 60 days). At a hearing, you have the right to present oral or written communication about the violations or the penalty. People who report in good faith are protected from civil liability.

A board complaint does not compensate you for an injury. If you or a family member was harmed by nursing care, including in a nursing home, you may also have a civil claim with strict deadlines. Call us to talk about it.

Why Choose Dennis Gonzalez Law, P.A.

• Former Miami-Dade prosecutor.
• Defending people since 2012.
• License case and criminal case handled together.
• Super Lawyers recognition and an Avvo Rating of 10.0.
• Bilingual office — se habla español.
• We answer 24 hours a day. Call (305) 209-0384.

Frequently Asked Questions

I failed a pre-employment drug test. Will I lose my license?

Not automatically, but the department may suspend or restrict the license if you do not have a lawful prescription and legitimate medical reason. You have 48 hours from notice of the confirmed result to produce a prescription. Act immediately.

How long do I have to respond to the department's letter?

The statute allows a written response within 20 days after service of the complaint.

I am a CNA. Does the Board of Nursing handle my case?

Yes. CNAs are certified and disciplined by the Board of Nursing under Part II of Chapter 464.

Can a misdemeanor affect my nursing license?

Yes. The nursing statute lists several offense types, such as theft, fraud, and battery, and a plea counts regardless of adjudication.

Is the investigation public?

Not at first. It is confidential until 10 days after probable cause is found, unless you waive confidentiality.