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What to do if I Received an AHCA Administrative Complaint or Notice of Intent?

Why did I receive this Administrative Complaint or Notice of Intent?

If you have received an Administrative Complaint from the Agency for Health Care Administration (“AHCA”) it means that they are alleging that your healthcare facility (i.e. Nursing Home, Assisted Living Facilities, Skilled Nursing Facilities, or Home Health Agency) has violated one or more sections of the Florida Statutes, the Florida Administrative Code, or both. AHCA will then make the argument that because you have violated these laws that your facility’s license should be revoked or suspended and you may be required to pay an administrative fine. Typically, you have 21 days to respond to the complaint by disputing the allegations or admitting the allegations. Depending on your response and how your case is handled could have a serious long-term impact on you and your practice, which could possibly lead to criminal charges.

AHCA may conduct unannounced inspections on any of the facilities listed above. After AHCA has conducted its survey, the administrator for the facility will be provided with a survey report detailing AHCA’s findings including any deficiencies. These deficiencies will be provided to you in the Statement of Deficiencies.  Deficiencies must be fixed within thirty days after notification and another ten days to present a Plan of Correction with the corrective measures that must be taken to comply with your license’s requirements. Many times, these unannounced inspections occur if an individual has decided to file a complaint against your facility. AHCA then seeks to substantiate those claims that were made by that individual.

How Might this Impact my Healthcare Facility or License?

AHCA maintains a list of all actions that were filed against your facility and if they were resolved via settlement agreements, defaults and dismissals, or by recommended orders. These three outcomes can have different impacts on your license and ability to practice. They are all part of the public record and they may impact the type of penalty that your receive for future infractions.

What to expect at the Division of Administrative Hearings?

The Administrative Hearing before a Florida Administrative Law Judge is governed by the Florida Administrative Code, Florida Rules of Evidence, and the Florida Administrative Procedure Act, F.S. Chapter 120. If you decide to deny the allegations and pursue an Administrative Hearing before the Division of Administrative Hearing (“DOAH”) the case can still be closed or settled prior to entry of a Final Order by the judge if the parties can agree to negotiated terms.  Hearings can either be informal or formal.

At the hearing, if brought by AHCA, the burden is on AHCA to prove “clear and convincing evidence” that the healthcare facility failed to act in a certain way or acted in a way that was otherwise prohibited. If AHCA can’t prove this then that specific Count, Notice of Intent, or the entire Administrative Complaint may be dismissed.

Examples of Violations

Here are some examples of violations that healthcare facilities may get dinged for by AHCA:

  1. Director of Nursing (“DON”) – AHCA requires that a home health agency that provides skilled nursing case must have a director of nursing at all times. If a DON ceases working at that facility the HHA must inform AHCA within 10 days or risk a Class II deficiency.
  2. Advertisements – A person that offers or advertises to the public a service for which registration is required (i.e. nursing home or home health services) must include in its advertisement the registration number issued by AHCA.
  3. Office Hours – Home Health Agency administrator or DON, or their alternates, must be available to the public for any eight consecutive hours between 7:00 a.m. and 6:00 p.m., Monday through Friday of each week. Available to the public means being readily available on the premises or by telecommunications. If an AHCA surveyor arrives on the premises to conduct an unannounced survey and no authorized person is there to provide access to patient records within one hour of the arrival of the surveyor then they have violated licensure requirements. Further, that list of current patients must be provided to the surveyor within two hours of arrival if requested. Failure to do either may be grounds for denial or revocation of the agency license.

Nursing Homes and related Health Care Facilities, such as Home Health Agencies have many statutory requirements and AHCA doesn’t care whether your intended to violate the requirements or not. They will pursue action against you. For example, there are certain Director of Nursing and Administrator requirements (i.e. staffing requirements, notifications to AHCA, limitations on staffing services, etc.) that Nursing Homes and Home Health Agencies must adhere to or risk fines and suspension of their license.

What are the Penalties?

Four different class violations exist, and the fines vary depending on the seriousness of the violation. For example, a Class II violation permits AHCA to impose an administrative fine in the amount of $5,000 for each occurrence and each day that the violation exists, while Class III only imposes a fine not to exceed $1,000. Additionally, AHCA may impose costs related to an investigation that results in successful prosecution, excluding costs associated with an attorney’s time. In other words, if you decide to fight the allegations and you are unsuccessful you may have to pay thousands of dollars in fines and fees related to your investigation. In addition to a fine for a certain class violations AHCA may request revocation of your license.

Florida Statute §400.474 lists various actions taken by a home health agency that are grounds for disciplinary action and the administrative penalties that may be imposed by AHCA. AHCA considers the (1)nature/severity of the violation; (2) actions taken by the administrator to correct violations; (3) prior violations; (4) the effect your violations had on facility residents; (5) financial benefits to the violating facility; and (6) whether this was an isolated, patterned, or widespread deficiency.

Conclusion

It is important to hire a competent health law attorney at the early stages of the investigation who is familiar with these types of cases to handle subsequent hearings. Although it’s not a guarantee, a highly-skilled attorney might be able to mitigate the seriousness of the offenses in the complaint resulting in the reduction or rescinding of fines and action against your license. You and your attorney should decide whether it is best for you to appear before an administrative law judge or negotiate a settlement with AHCA. To better weigh your options a licensed attorney may submit a motion for extension of time to respond to the Administrative Complaint so that you can negotiate a settlement or gather evidence do deny the allegations at the hearing. Alternatively, if you have already submitted your Election of Rights to AHCA, a health law attorney may be able to submit a Motion for Abeyance to continue the case while you explore available options with AHCA.

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It should be noted that I am not your lawyer (unless you have presently retained my services through a retainer agreement). This post is not intended as legal advice, it is purely educational and informational, and no attorney-client relationship shall result after reading it. Please consult your own attorney for legal advice. If you do not have one and would like to retain my legal services please contact me using the contact information listed above.

All of the information and references made to laws, rules, regulations, and advisory opinions were accurate based on the law as it existed at this time, but laws are constantly evolving. Please contact me to be sure that the law which will govern your business is current. Thank you.

Mr. Jones Attends Health Law Executive Council Meeting in Cocoa Beach

On September 13, 2018, Jamaal R. Jones attended the Florida Bar Health Law Section’s Executive Council Meeting in his capacity as Executive Council member and Chair of the Communications and Technology Committee.

Many things were discussed during the meeting including updates the Health Law Section’s website, updates to the Health Law Section’s Bylaws, legislative updates, student stipends, and more.

The meeting was held at the Hilton Cocoa Beach. 

Can a Registered Nurse Administer Botox?

**UPDATE: AS OF 09/13/2023**

A Declaratory Statement has been issued by the Florida Board of Nursing allowing for a nurse with the appropriate level of education, training, and experience to administer Botox under the supervision of a physician. A declaratory statement is not the appropriate means for determining the conduct of another person or for obtaining a policy statement of general applicability. The issuance of this Declaratory Statement does not mean that all registered nurses can administer Botox, rather that determination must be made on a case-by-case basis. See article here.

Those who run med spas, dental or dermatology practices are concerned about whether a registered nurse on staff can administer Botox without their direct supervision. Allowing them to do so would free up the physician’s schedule so that he can perform other procedures that his personnel is not permitted to do.

According to the Florida Board of Medicine, there are no laws and rules that address who can and cannot administer Botox injections in the state of Florida.

However, a 2017 Board of Nursing case[1] involved a Florida licensed Registered Nurse who was alleged to have violated Florida Statutes 456 and/or 464. In March 2016, the nurse administered Botox to multiple patients on multiple occasions. The Board of Nursing found that the nurse did not perform the Botox injections pursuant to a valid physician’s order. The Board of Nursing held that performing Botox injections without a physician’s order is beyond the scope permitted by law. Further, the nurse had reason to know that she was not competent to perform the Botox injections.

The Board referenced Florida Statute 464.018(1)(h) in its decision by stating that unprofessional conduct as defined by the board is grounds for disciplinary action. The Board also referred to Florida Administrative Code Rule 64B9-8.005(13), which provides that unprofessional conduct includes practicing beyond the scope of the licensee’s license, educational preparation or nursing experience. (emphasis added). Finally, the Board stated that the nurse engaged in unprofessional conduct by practicing beyond the scope of her license, educational preparation and/or nursing experience by performing Botox injections without a valid physician’s order.

In Florida, practicing medicine without a license is considered a 2nd degree misdemeanor. Additionally, the nurse could have had the following actions taken against her:

  1. license suspended or permanently revoked;
  2. restriction of practice;
  3. imposition of an administrative fine;
  4. issuance of reprimand;
  5. probation;
  6. refund of fees billed or collected;
  7. remedial education; and/or
  8. any other relief that he Board deemed appropriate.

Two things should be taken away from the decision in this case. First, just because there isn’t a specific law on the books regarding Botox injections doesn’t make it legal for a registered nurse to administer it to patients. Second, I thought that it was interesting that the Board stated that the nurse was not performing the Botox injections pursuant to a physician’s order. Many would view this sentence as specifically allowing a nurse to administer Botox injections only in situations where the nurse is doing so pursuant to a physician’s orders (not an NP, PA, ARNP). I don’t believe that to be true because the Board went on to state that even pursuant to a physician’s orders a registered nurse does not possess the requisite educational preparation to perform the procedure and that doing so would be practicing beyond the scope of her nursing license.

[1] Department of Health v. Trisha Lorraine White, R.N. Case Number 2016-13884

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It should be noted that I am not your lawyer (unless you have presently retained my services through a retainer agreement). This post is not intended as legal advice, it is purely educational and informational, and no attorney-client relationship shall result after reading it. Please consult your own attorney for legal advice. If you do not have one and would like to retain my legal services please contact me using the contact information listed above.

All of the information and references made to laws, regulations, and advisory opinions were accurate based on the law as it existed at this time, but laws are constantly evolving. Please contact me to be sure that the law which will govern your business is current. Thank you.

Tips for Buying and Leasing Medical Office Space

When it comes to running a doctor’s office, you can either lease or purchase a commercial property to practice from, but how do you know which option is best for you? Finding the right space for your medical practice can be a tedious, expensive and very stressing. Our job is to help physicians and other healthcare professionals make the right real estate decisions when it comes to commercial space and planning for their practice.

Failed Pre-Employment Drug Test for Nursing Position

Whether you are still in nursing school, just graduated from nursing school or seeking new employment as a nurse you will likely need take a drug test as part of the pre-employment process. Also, it is not uncommon for nurses and other healthcare providers to submit to random drug testing even after they are employed. Some nurses are taking illicit drugs and it should come as no surprise if they fail their drug test. However, there are individuals who are shocked to find out that they have failed a drug test because they are not knowingly taking any illicit drugs. Some nurses may have false positives on drug tests for various reasons not related to drug abuse. One common way that nurses fail drug tests is when they take prescription drugs that may contain prohibited drugs as part of the formula. For example, some drugs may contain a very small percentage of methamphetamine. Nurses who take prescription drugs without a prescription or any legitimate medical reason for using the drug can also subject your license to discipline.

If you have a legitimate problem with drugs or alcohol the Board of Nursing might require you to attend rehabilitation center or treatment facility. If you fail your drug test many hospitals require the nurse to self-report to the Intervention Project for Nurses (“IPN”). If you choose not to self-report they will likely report you. You should speak with a health law attorney to determine whether self-reporting to the IPN is the right decision for you. You should review your hospital’s policies and procedures manual to determine how the hospital handles these types of matters internally. The manual should also inform you of whether IPN reporting is mandatory or voluntary.

The IPN was created by the Florida Legislature and is the only case management program recognized by the Board of Nursing. The IPN is comprised of case managers, administrative staff and psychiatrists, psychologists, and addictionologists whose main goal is to determine whether the nurse can safely perform her duties. However, in some instances nurses may pursue private treatment options rather than the IPN. There are several factors that our firm will use to determine whether IPN Florida is the best option available for you to avoid significant licensing restrictions or revocation.

Nurses who submit to the IPN must sign a five year contract agreeing to monitoring, counseling meetings, regular psychiatric visits, random urinalysis testing, mandatory notification to all employers that you are in IPN and the reasons why and prohibitions on drinking alcohol or taking any medication without prior approval by IPN. Typically, it is impossible to depart the IPN program after you’ve agreed to be a part of it without losing your nursing license. In addition to losing your license you will be reported to the National Practitioner Data Bank (NPDB) and face exclusion from Medicare and Medicaid programs.

Many nurses fail the IPN plan because they can’t afford to keep up with its requirements. Nurses are responsible for the costs of drug tests, collection fees, therapy sessions, and visits with addiction professionals. Failure to meet the requirements of the IPN program will result in your name being reported to the Department of Health and formal action will be taken against your license.

If you have failed your drug test you will receive correspondence from the Department of Health requiring you to relinquish your nursing license for a specified period of time. After that time period has expired, you may re-apply for your license and if granted you will be placed on a probationary status. While on probation you may be required to do periodic call-ins for random drug testing. Unfortunately, even after you’ve completed monitoring agreement with the IPN you could still have action taken against your nursing license.

If your attorney is unable to resolve the issue internally a complaint will be filed against you. If a complaint is filed against you will have to present yourself to a hearing at which time there will be a discussion of the evidence by a hearing officer or Probable Cause Panel. These hearings are governed by Florida’ Nurse Practice Act. If you can prove that the allegations against you are not true then the panel or hearing officer will rule in your favor. If you are unsuccessful at the hearing you can appeal the decision through the judicial system.

Before appearing before a Probable Cause Panel, you should obtain several character references, prior negative drug tests, polygraph testing, letter of explanation, letter of apology, and you should complete your own evaluation by a board-certified psychiatrist or addiction specialist. These materials will lessen the severity of the punishment handed down by the panel.

The Board of Nursing may issue a fine, reprimand of your nurse’s license, require evaluation by an IPN approved psychologist or addictionologist, or revocation of your license if the case is severe. Fines for first time offenses range from $250 to $500 and it can also include a suspension of your license and an IPN evaluation. Fines for second offenses include a $500 fine, possible suspension, and IPN evaluation, or a revocation of your license.

DOH investigators typically complete these types of investigations and report their findings within 45 days. If they determine that you were abusing drugs or alcohol the Surgeon General will issue an Emergency Suspension Order (“ESO”). The ESO will suspend your license pending the completion of the proceedings. During this time, the nurse will be unable to practice in Florida and most likely in any other jurisdiction where he holds a license.

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It should be noted that I am not your lawyer (unless you have presently retained my services through a retainer agreement). This post is not intended as legal advice, it is purely educational and informational, and no attorney-client relationship shall result after reading it. Please consult your own attorney for legal advice. If you do not have one and would like to retain my legal services please contact me using the information listed above.

All of the information and references made to laws, regulations, and advisory opinions were accurate based on the law as it existed at this time, but laws are constantly evolving. Please contact me to be sure that the law which will govern your business is current. Thank you.

Jamaal Jones is now on the Florida Bar Health Law Section’s Executive Council

Jamaal Jones is now on the Florida Bar Health Law Section’s Executive Council! He will serve his term from 2018 – 2021. In addition to serving on the Executive Council, Mr. Jones was also elected to be the Chair of the Communication and Technology Department for the Health Law Section. Mr. Jones is looking forward to bringing about positive chance to the section.

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