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Protecting Your License Against Adverse Action

election of rightsBy: Susan St. John

If you have ever been the recipient of a Florida state agency’s (i.e. Department of Health, AHCA, etc.) notice regarding an adverse action, such as a Notice of Intent to Deny, licensure application, renewal or change of ownership, you probably received an Election of Rights form along with the agency’s notice. The Election of Rights form must be completed and returned to the agency within 21 days of receiving the agency’s notice. In completing the Election of Rights form, you are given three options to choose from in deciding how you want to respond to the agency’s notice.

Under Option One you admit to the allegations of facts and law contained in the agency’s notice of intended action and waive the right to object and have a hearing. This is akin to an admission of guilt, that the agency is right in its decision, and you agree to a final order that supports the agency’s actions, including imposition of fines and punishment against you. Option One is generally not in your best interest.

Under Option Two you admit to the allegations of facts contained in the agency’s notice of intended action, but you wish to be heard at an informal hearing to present testimony or written evidence that the agency’s intended action is too severe and fines or punishment should be reduced. This is also akin to an admission of guilt, but you want to present evidence and arguments that you do not deserve the punishment the agency has in mind for you. Think of this as plea-bargaining. It is also not generally in your best interest.

Under Option Three you do not admit to any allegations included in the agency’s notice and you request a formal hearing to dispute the agency’s actions, including any punishment it has in mind for you. This is usually the better choice. This choice preserves your rights to more fully defend yourself and dispute the agency’s actions.

Licensees, whether practitioners or owner/operators of a health care service provider, receiving a notice of adverse agency action often believe that electing Option Two will allow them to introduce facts at the informal hearing, and while they may do so, the facts are used to assist in determining severity of punishment – guilt has already been admitted! Resist the temptation to elect Option Two. It is difficult to un-ring the bell or put the genie back in the bottle when Option Two is elected. Licensees also believe electing Option Two will save time and money, but that is usually not often the case, particularly if a license is on the line. It is in an adversely affected licensee’s best interest to ask an attorney to assist in responding to adverse agency action. An experienced healthcare attorney can help shepherd the licensee through this process, including election of rights, and preparing a petition for formal hearing disputing the agency’s actions, including any agency action that negatively affects your license.

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