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Galvan v. Department of Health

Florida Court of Appeals, Third District

November 20, 2019

Maribel GALVAN, R.N., Appellant,
v.
DEPARTMENT OF HEALTH, Board of Nursing, Appellee.

Page 976

          An Appeal from the Department of Health, Board of Nursing. Lower Tribunal No. 16-26623

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

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

         Before SALTER, HENDON, and GORDO, JJ.

         OPINION

         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

Page 977

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

Page 978

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 ...


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