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AHCA Application for Exemption from Disqualification

If you are reading this article it means that you have probably received a letter from the Agency for Healthcare Administration (“AHCA”) stating that they have uncovered criminal offenses that disqualify you from working for a health care provider. AHCA may have uncovered this offense a result of background screening submitted as part of the employment process for a health care provider and/or participation as a Medicaid provider. This applies to clinical staff as well as facility owners, administrators and chief financial officers and those seeking enrollment as a provider in the Florida Medicaid program. Fear not, because you may be eligible to file an Exemption from Disqualification if you meet certain criteria.

Am I Eligible for Exemption?

Our firm can assist you with demonstrating to AHCA by clear and convincing evidence that an exemption from disqualification should be granted. The application will only be reviewed once all relevant supporting documents are received by AHCA. You are only eligible for Exemption from Disqualification if:

  1. You have been lawfully released from confinement, supervision or other nonmonetary condition imposed by the court for a disqualifying misdemeanor criminal offense;
  2. At least 3 years after you have been lawfully released from confinement, supervision, or other nonmonetary condition imposed by the court for a disqualifying felony criminal offense;
  3. You have completed any court-ordered fee, fine, fund, lien, civil judgment, application, costs of prosecution, trust, or restitution as part of the judgment and sentence for any disqualifying felony or misdemeanor in full; and
  4. If you have been designated as a sexual predator, sexual offender or career offender you are not eligible for an exemption from Disqualification.

 

Filing the Application

Filling out the application can be a bit tricky, so you should definitely hire a health law attorney that has experience with doing so in order to prevent delays in processing your application. In addition to completing the Application for Exemption from Disqualification you will need to provide AHCA with the following:

  1. Current Level II Screening;
  2. Arrest Reports;
  3. Court Dispositions;
  4. Signed Statement (only if you cannot obtain the arrest report and/or court disposition);
  5. Probation and/or Parole records;
  6. Letters of Reference; and
  7. Documentation of Rehabilitation

It is important to note that when you apply for exemption you must provide all arrest reports, including those that were not specifically listed in the notice that you received from AHCA. You will also need to provide all court dispositions no matter the plea, judgment, verdict or even if it was sealed or expunged from your record. All of these documents will need to be neatly organized and AHCA must receive the documents within 30 days from receipt of its letter. It may take a little bit of legwork to retrieve these documents, so it is important to contact our firm as soon as possible so that we don’t miss the deadline. AHCA rarely grants extensions for filing the application.

Finally, if you are a certified or licensed healthcare professional you may also have to file an application for exemption with the Florida Department of Health (“DOH”). Florida Statute 408.809(7)(a) states that AHCA may grant an exemption from disqualification to a person who is subject to this section and who: (1) Does not have an active professional license or certification from the DOH; or (2) has an active professional license or certification from the DOH but is not providing a service within the scope of that license or certification.You may also have to submit a signed background screening privacy policy acknowledging receipt of the privacy policy. Once the DOH receives your application they will review it and make a decision as long as that person is working in the scope of their license or certification.

What Happens After Filing?

Once AHCA received the documents, it will be transferred to the Exemption Team and assigned to one of their analysts. As stated earlier, the analyst is looking for clear and convincing evidence that the employee should not be disqualified from employment. The Agency will consider the following:

  • The circumstances surrounding the criminal incident(s) for which an exemption is sought;
  • The time period that has elapsed since the incident(s);
  • The nature of the harm caused to the victim;
  • The history of the employee since the incident(s);
  • Any other evidence or circumstances indicating that the employee will not present a danger if employed or continued employment is allowed; and
  • Whether the applicant has been arrested for or convicted of another crime, even if that crime is not a disqualifying offense.

Once you’ve submitted your application it takes approximately 30 days for AHCA to render its decision to you. Exemptions granted by one agency will be considered by other agencies, but it is not binding on subsequent agencies. It is possible for AHCA and DOH to deny your application even though you feel you meet the criteria for an exemption. In those instances, our firm will represent you before AHCA and DOH Boards if you chose to contest the Agency decision. You have 21 days from the date you sign for the certified letter to request an appeal. The administrative law judge will only decide whether the agency’s intended action is an abuse of discretion.

Job Status

Are you allowed to continue to work for your employer after you’ve submitted the application for Exemption from Disqualification? It depends on the circumstances. If you were screened and hired by your current employer on or before June 30, 2014 and this disqualification was due to a rescreening by the same employer, you may continue work if you meet all of the following criteria:

  1. You are eligible to apply for exemption;
  2. Your disqualifying offense was not disqualifying at the time of your last screening, but is now disqualifying and was committed before the date of your last screening;
  3. Your employer agrees that you may continue working; and
  4. You submit your application timely.

According to Florida Statute, 408.809(4) an employee may continue to perform her duties and her employer may continue to allow her to have contact with any vulnerable person (i.e. physical therapy patients) that would place employee in a role that requires background screening while her application for exemption from disqualification by the agency is being processed and under review. You also must make sure that your license stays active if you are a licensed healthcare provider, which means that you should submit any renewal forms and correct any omissions to prevent your license from expiring.

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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.

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.