Among the many administrative blunt instruments entrusted to the Florida Department of Health (DOH) to wield against healthcare professionals, few are more dangerous or more versatile than Florida’s Reciprocal Action Statute. The law affords the DOH effectively unchecked power to impose any form of discipline, up to and including revocation of your professional license, merely for having had your license disciplined (or even just denied) in any other US state, regardless of the actual findings, specific result, or even the procedural fairness of the underlying proceedings… or so the DOH prosecutors would have you believe.
If you’re facing discipline in Florida based on conduct that began before another state’s licensing body, it is crucial that you make an informed plan on how to raise your defenses effectively, and how to respond if the worst has already happened.
If you were recently disciplined in Florida for an action that was originally taken by another state, the Board likely considered and accepted some variant of the sound-bite that your offense was already conclusively proven and beyond the scope of these proceedings. This is a half-truth used to circumvent both evidence and legal arguments, sometimes rightly, and sometimes not. The nuances of what arguments and evidence fall within the scope of a “reciprocal action” are a complication that the DOH would often rather ignore. But to the respondent whose professional healthcare license is at risk, it can make all the difference.
Florida’s Reciprocal Action Statute is the law that allows the Florida Department of Health to impose discipline against a licensee, on the basis that another state has done the same. While different professions echo the section with minor variations, the most broadly applicable version is found in Section 456.072(1)(f) of the Florida Statutes, and reads as follows:
“Grounds for discipline; penalties; enforcement.—
(1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
…
(f) Having a license or the authority to practice any regulated profession revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions, for a violation that would constitute a violation under Florida law. The licensing authority’s acceptance of a relinquishment of licensure, stipulation, consent order, or other settlement, offered in response to or in anticipation of the filing of charges against the license, shall be construed as action against the license.”
What this means is that, if another state denies you licensure, limits your license or right to work in any way, or even coerces you into “voluntarily” limiting your own, then the Florida Board may consider doing the same. Functionally, you having been disciplined is treated as the violation you committed in Florida, and the DOH will investigate and initiate proceedings against you in almost the same as they would with any other.
The Reciprocal Action Law is, at first glance, a godsend for your prosecutor. It saves them the trouble of proving their case, on the basis that another state licensing authority already has. In such a case, a typical Administrative Complaint against a licensee is drafted in such a way as to allege the (impossible to disprove) fact that the licensee was disciplined or denied in another state and deliberately omit any allegation that the licensee was actually guilty of the violation. In some cases, where it threatens the prosecution’s efforts to evade a formal hearing on your evidence and defenses, they even fail to plead precisely what it is the licensee was disciplined for. That way the licensee cannot maintain their innocence and force prosecution to re-litigate (i.e. prove) their case before an administrative law judge. By this stroke of creative legal framing made in the pleadings, the strategy goes, your innocence is rendered immaterial, and your hearing becomes a rubber stamp to justify whatever discipline the prosecution recommends, completely insulated from any defenses you might raise.
As far as the prosecution is concerned, all that matters is that discipline was imposed or a denial occurred in the first instance. From that perspective, a reciprocal action case is effectively predetermined; it is decided the moment the underlying event occurs in another state. That view, however, reflects wishful thinking on the part of the Prosecution Services Unit, as Florida’s courts of appeal have made clear a different and more nuanced conclusion.
Even if the fact that a licensee is being disciplined or denied licensure in another state is sufficient grounds to put them in technical violation of the Reciprocal Action Statute, it is not necessarily enough to establish what discipline is appropriate. This is a matter for the Board to decide. But that discretion must still be exercised in accordance with applicable law, case precedent, the disciplinary guidelines for the profession (something of a misnomer; appeals courts have repeatedly held that the “guidelines” are mandatory to apply), and the ever-important appellate standard that the Board’s rulings must not be “arbitrary and capricious” (a legal standard which essentially means their decisions must not be unfair for no specific or legitimate reason).
There are numerous reasons why, before a licensing Board, the facts underlying the out-of-state action can affect the degree of discipline imposed or even whether discipline may be imposed at all. Which considerations are important varies from case to case, but several recurring issues frequently arise.
The Reciprocal Action Statute, by its own terms, requires that the licensee have been disciplined for a violation that would constitute a violation under Florida law.
The appropriate penalty is not automatically adopted from the originating state. Instead, the Florida licensing Board must independently determine what discipline, if any, is warranted.
This determination necessarily requires consideration of the facts that led to the original discipline. Meaningful discussion of the appropriate penalty is impossible without understanding why the licensee was disciplined in the first place.
Most of the Florida Department of Health’s professional practice acts require that discipline be selected according to the severity of the offense. The facts of what exactly the originating state found that the licensee did to be disciplined are directly relevant to this.
The licensee is entitled to present mitigation; evidence shedding light on specific, “mitigating factors” which shall weigh in on the Board’s decision of what penalty, if any, to impose. These factors are enumerated (not always exhaustively) in the Florida Administrative Code for each profession, and many of them directly relate to the facts of the underlying violation, such as the facts and circumstances surrounding it, or whether or not anyone was harmed by the licensee’s actions. Any evidence on the record of any of the mitigating factors must be considered by the Board for that purpose, even if it sounds like or could double as relitigation of the underlying guilt or innocence.
The originating state’s disciplinary action generally establishes the existence of the underlying offense unless the proceedings were so deficient that due process was lacking.
On occasion, however, this occurs. Evidence demonstrating that the original proceeding was fundamentally unfair may therefore be both relevant and necessary for the Board to consider.
All of these important considerations are properly raised before the licensing Board, even if the Administrative Complaint is drafted in such a way as to evade presenting them as material facts.
Binding Florida case precedent has consistently held that the DOH cannot circumvent their burden of proving their case simply by failing to properly plead elements that they cannot prove, and also that the underlying action in a disciplinary proceeding is conclusive only to the existence of the action, not to the appropriate discipline, and the licensee is entitled to introduce evidence weighing on this crucial issue.
Unfortunately, evidence addressing these issues can sometimes be mistaken for an improper attempt to relitigate the underlying case. This misunderstanding may work to the licensee’s detriment if the Board fails to appreciate the distinction.
Therefore, if you or your attorney are not prepared with a thorough understanding of these issues and the legal authority supporting your right to be heard, all your carefully prepared arguments and defenses could be entirely dismissed and ignored by a licensing Board that, however well intentioned, has misunderstood the relevance of your arguments, or even the scope of the very proceeding.
If the Board has already ruled against your license at a recent disciplinary proceeding, it may not be too late to appeal. Many litigants go before the Board without counsel and suffer defective rulings without ever understanding just what made them unfair, why the Board made the decision that they did, and what the appealable errors were that may entitle you to a new (and fairer) hearing. If these are not identified by the time of the appeal deadline (which is not generous), you may waive your right to fight for a new hearing (and the professional license you’ve worked so hard for) without ever knowing about it or how to make the best of it.
If you’ve received an Administrative Complaint or a Notice of Investigation, then an administrative hearing is in your future. Time is limited and important opportunities to strengthen your position and make your case can pass you by if you don’t act quickly. Obtaining representation by a professional licensing defense attorney who has extensive experience dealing with the DOH is in your best interest.
Furthermore, if you’ve been disciplined in another state, or even had your application for licensure denied and additionally hold Florida licensure, the Florida Department of Health will be notified and they will investigate. It is crucial to begin preparing as soon as possible by preserving all documentation or correspondence related to the action and immediately contacting a healthcare licensing and regulatory affairs attorney.
If you are facing disciplinary action in Florida based on a denial, suspension, or other disciplinary action taken in another state, experienced legal representation can make a critical difference. Chapman Law Group’s Professional Licensing Defense attorneys represent healthcare professionals across Florida in matters involving the Florida Department of Health and professional licensing boards. Our team understands the complexities of reciprocal action cases and can help protect your license, your livelihood, and your future. Contact Chapman Law Group today to discuss your case and learn how we can help defend your professional rights.
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