Galvan v. Dep't of Health

• Decision Date: 20 November 2019
• Docket Number: No. 3D19-730,3D19-730
• Citation: 285 So.3d 975
• Parties: Maribel GALVAN, R.N., Appellant, v. DEPARTMENT OF HEALTH, Board of Nursing, Appellee.
• Court: Florida District Court of Appeals

285 So.3d 975

Maribel GALVAN, R.N., Appellant,

v.DEPARTMENT OF HEALTH, Board of Nursing, Appellee.

No. 3D19-730

District Court of Appeal of Florida, Third District.

Opinion filed November 20, 2019.

André Gibson, Chartered, and André A. Gibson, for appellant.

Sarah Young Hodges (Tallahassee), Chief Appellate Counsel, for appellee.

Before SALTER, HENDON, and GORDO, JJ.

HENDON, J.

Maribel Galvan. R.N. ("Galvan") appeals from the final order of the Department of Health, Board of Nursing ("Board") permanently revoking her license to practice nursing in Florida. We reverse and remand for a formal hearing before an administrative law judge at the Division of Administrative Hearings.

Galvan was a registered nurse, licensed since 2006. In 2008, she started a business operating group homes. Galvan was found to have accepted cash from a pharmacy for doing business with it. She subsequently pleaded guilty to one count of receiving a kickback from a pharmacy in connection with the Medicaid program, a violation of 42 U.S.C. § 1320(a). The Department of Health ("DOH") commenced an administrative action by suspending Galvan with an Emergency Order of Suspension followed by a three-count administrative complaint seeking to revoke Galvan's license as a registered nurse. The DOH alleged that Galvan's federal guilty plea is 1) a violation of section 456.072(1)(ii), Florida Statutes ;¹ 2) a crime which relates to health care fraud, and 3) a crime that directly related to the practice of nursing, which is the basis for discipline. Galvan argued that her guilty plea was not directly related to the practice of nursing. In response, the DOH filed a second amended complaint dismissing Counts 2 and 3, the two charges that alleged Galvan's plea was directly related to the practice of nursing. Although the DOH dismissed the two counts in the first administrative complaint that directly related to the practice of nursing, it retained the first count in the second administrative complaint alleging that Galvan violated section 456.072(1)(ii), Florida Statutes (2017), which provides: (1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2)² may be taken: ... (ii) Being convicted of, or entering a plea of guilty or nolo contendere to, any misdemeanor or felony, regardless of adjudication, or a crime in any jurisdiction which relates to health care fraud. The DOH in the "wherefore" clause of the second amended complaint requested the Board to impose one or more penalties out of a list of potential penalties, which included permanent revocation, restriction of practice, imposition of a fine, reprimand, probation, or any other relief. The penalty guideline the Board relied upon, Florida Administrative Code Rule 64B9-8.006(3)(c), requires a "direct relationship" between a guilty plea and the practice of nursing or ability to practice nursing (collectively, "direct relationship").

Galvan requested a formal administrative hearing before an administrative law judge ("ALJ") at the Division of Administrative Hearings ("DOAH"), arguing that by alleging a violation of section 456.072(1)(ii), the DOH cannot rely on Rule 64B9-8.006(3)(c) as the penalty guideline because that regulation applies only to crimes "directly related to the practice of nursing." Galvan maintained that her crime does not relate to the practice of nursing, thus the maximum penalty of revocation pursuant to Rule 64B9-8.006(3)(c) was inappropriate. The DOH refused to amend the complaint, denied her request for a formal hearing, and concluded that Galvan failed to dispute an issue of material fact, i.e., that she pled to a federal Medicaid kickback crime. Although the DOH denied the request for a formal hearing, it revised its complaint to allow for a probable cause panel (PCP) hearing.

At the PCP hearing, Galvan agreed that her guilty plea was a basis for a probable cause finding but continued to maintain that there was no basis to permanently revoke her nursing license because her crime did not involve the direct practice of nursing. The PCP relied on an Investigative Report that allegedly contained several material errors, conflating the kickbacks with healthcare fraud, indicating eleven episodes of kickbacks when there was only one, and including the assertion that her crime was directly related to the practice of nursing. Galvan argued that because the DOH dismissed Counts 2 and 3, the only counts that involved the practice of nursing, DOH should amend its complaint to remove revocation as a penalty. DOH denied the request.

The matter went before an informal panel³ of the Board. Counsel for the DOH conceded that the Investigative Report contained several material errors on which the allegations in the second amended complaint were based, but the Board continued to seek revocation as the ultimate penalty. At the informal hearing, the Board learned that Galvan did not practice nursing while operating the group homes. Galvan argued that since she has been barred by Medicare and Medicaid from operating a group home, she needs to fall back on her nursing degree to make a living. Galvan argued that the Board should terminate the informal hearing and allow her to pursue a formal hearing at DOAH because of the dispute of material fact whether her crime encompasses the direct practice of nursing⁴ in order to apply the sanction of revocation of her license. The Board disagreed and voted to permanently revoke her license to practice nursing in Florida. Galvan appeals.

This court interprets state administrative rules de novo. Art. V, § 21, Fla. Const. (2018) ("[I]n interpreting a state statute or rule, a state court ... may not defer to an administrative agency's interpretation of such statute or rule and must instead interpret such statute or rule de novo."). The standard of review of the agency's findings of fact is that of "competent, substantial evidence." § 120.68(7)(b), Fla. Stat. (2012). The Board's imposition of a penalty is reviewed under an abuse of discretion standard. See Dep't of Highway Safety & Motor Vehicles v. Silva, 627 So. 2d 612 (Fla. 1st DCA 1993) ; Grimberg v. Dep't of Prof'l Regulation, Bd. of Med., 542 So. 2d 457, 457-58 (Fla. 3d DCA 1989) ("The appellate function, on review of penalties imposed by an administrative agency, is to determine whether there are valid reasons in the record in support of the agency's order."). However, a reviewing court may set aside agency action when it finds that the action is dependent on findings of fact that are not supported by substantial competent evidence in the record, there are material errors in procedure, incorrect interpretations of law, or the agency abused its discretion. § 120.68, Fla. Stat. (2018).

There are two elements to Rule 64B9-8.006(3)(c). First, the person must have been convicted, found guilty of, or have taken a plea under, in Galvan's case, section 456.072(1)(ii). Second, that crime must be "directly related to the practice of nursing or to the ability to practice nursing." Galvan admittedly meets the first criterion because she pled to a federal kickback violation, but she vigorously disputed that her crime of accepting a monetary kickback from a pharmacy directly relates to the practice of nursing. She testified at the informal hearing that she did not administer medications or practice nursing at the group homes, but acted as an administrator, ordering medications and supplies for the clients. The record indicates that Galvan's ban from participating in Medicare and Medicaid programs has no impact on her ability to practice nursing.

Statutes authorizing sanctions against a person's professional license "are deemed penal in nature and must be strictly construed, with any ambiguity interpreted in favor of the licensee."

Beckett v. Dep't. Fin. Servs., 982 So. 2d 94, 100 (Fla. 1st DCA 2008) (quoting Elmariah v. Dep't of Prof'l Regulation, Bd. of Med., 574 So. 2d 164, 165 (Fla. 1st DCA 1990) ). Thus, any ambiguity as to whether Galvan's federal kickback offense is "directly related to the practice of nursing," such that Rule 64B9-8.006 applies, should have been decided in Galvan's favor by terminating the informal hearing and granting Galvan's request to have the matter...