TALLAHASSEE – A Florida state law designed mainly to crack down on Medicaid fraud is having unexpected consequences by keeping some health care professionals from getting or keeping their licenses at a time when the state is suffering a shortage.
This little-noticed provision in the 160-page measure is preventing doctors, nurses, pharmacists and lab technicians from working in Florida if they have old felony convictions for fraud or drugs.
This law, which went into effect July 1, 2009, prohibits applicants who’ve had such convictions – even if unrelated to Medicaid or other government programs – from getting new or renewed licenses until at least 15 years after they’ve completed their sentences, including probation. The ban also applies to no contest pleas and cases where judges have withheld findings of guilt. More than 30 license applications have been denied or withdrawn because of the law.
Another twist: The provision covers only those who have violated Florida or federal laws. Applicants convicted of the same crimes in other states can still be licensed in Florida.
“To favor people who commit their crimes out of state doesn’t make any sense,” said Anna Small, legislative counsel for the Florida Nurses Association.
Katina Campbell, who graduated from LPN school in June, 2009, withdrew her Florida application after the state notified her of the law. The 37-year-old single mother of two, including a legally bind teenager, couldn’t get licensed, though, because she had been convicted of credit card fraud.
“I’m heading for Alabama,” Campbell said. “I have to move out of my home I’ve been in for two years since I’ve been released from prison and uproot my kids.”
After being turned away by Florida, Campbell received an Alabama license and has been driving back and forth looking for a job there.
She comes from a family of nurses and was a certified nursing assistant before serving a five-year prison term. After her release in 2007 she received clearance from the state Board of Nursing to enroll in the LPN program at Winter Haven’s Ridge Career Center. Campbell said her parents and grandparents sacrificed to put her through school and she had a job lined up at a nursing home.
“Even when the governor says rehabilitate-rehabilitate, restore-restore, Florida still says ‘No, you’re out,'” Campbell said.
The measure also has a potential constitutional problem. The Department of Health and state licensing boards have not applied the requirement to renewals unless applicants committed crimes after the July 1, 2009 effective date. Officials are worried that rejecting renewals for earlier crimes would violate licensees’ property and due process rights.
Donna Erlich, a lawyer for the department, said the agency expects to keep applying that interpretation “unless and until the governor’s office advises otherwise.”
Other parts of the law designate Miami-Dade County as a Medicaid fraud crisis area and set up pilot programs designed to prevent the overuse of home health care services, which have been identified as a major source of fraud.
In the first four months after going into effect, the professional licensing provision has resulted in the denial of 14 license applications and the withdrawal of 17, according to Department of Health records.
The total of 31 includes 20 for drug violations, five for fraud – including Campbell’s withdrawal – and four for both types of crimes.
A majority of the denials and withdrawals – 22 – were for LPN licenses. The others were for registered nurse practitioners, nursing home administrators, a medical doctor, lab technician, nuclear pharmacist and respiratory therapist.
Lucy Gee, the Health Department’s director of medical quality assurance, said those being affected include young medical professionals who have successfully completed impaired practitioner programs.
“Those individuals may have diverted drugs, which would be a criminal offense, but diverted the drugs for personal use, not for sale,” Gee recently told a Florida Senate committee.
There’s also a racial component – blacks submitted about half of the applications so far denied or withdrawn.
The law is forcing Campbell and others rejected by Florida to seek licensing in other states. Most states, like Florida, don’t have enough nurses, Small said.
“I feel bad for Georgia; they have a nursing shortage, too, but I don’t want to fix their problem,” Small said. “I want to fix our problem.”
Small’s organization wants lawmakers to repeal the provision and go back to letting licensing boards make decisions on a case-by-case basis so they can take into account the severity of crimes and mitigating factors such as Campbell’s volunteer work trying to help other former inmates turn their lives around.
The law’s sponsor, Sen. Don Gaetz, R-Niceville, acknowledged the 15-year waiting period was arbitrarily chosen.
“Whether or not 15 years is the right number or 20 years or 10 years, that’s certainly a subject for debate and discussion,” Gaetz said. “It might be the case that if we find unintended consequences that we might consider a little more fine tuning.”
Gaetz said he first wants to see data from the Department of Health on the provision’s effects but that he doesn’t intend to back off entirely.
“If we’ve got somebody who stole narcotics from a hospital and distributed them on the street, you know, I’m not so sure I want that person to have a key to the drug cabinet even if it was 10 years ago,” said Gaetz, who chairs the Senate Health Regulation Committee.
Rep. D. Alan Hays, a Umatilla Republican and retired dentist, went before Gaetz’ panel to urge a change.
“We have people that have been practicing, assuming they’ve been without incident, since they’ve had their license,” Hays said. “The 15 years goes back too far perhaps.”
Sen. Eleanor Sobel, a Hollywood Democrat on Gaetz’ committee, said the law also should consider the nature of the crime.
“If it’s 25 years ago or seven years ago they did something that was less heinous,” she said, “then that should be taken into consideration.”
This article by the Associated Press appeared in the Tampa Bay Online.