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Board of Nursing Issues Declaratory Statement Regarding Botox Injections by RNs

The Scope of Practice for a Registered Nurse isn’t always clear. The Florida Nurse Practice Act (Florida Statute Ch. § 464) and the Rules of the Florida Board of Nursing (Florida Administrative Codes, Title 64B9) exist to establish regulations, authority, and guidance regarding the practice of nursing. The issue of whether a registered nurse can legally administer Botox has been clearly addressed under Florida law. Previous rulings set a precedent when a nurse was disciplined for performing Botox injections on a client without a physician’s direct orders (Department of Health v. Trisha Lorraine White, R.N. Case Number 2016-13884). However, this ruling seemed to leave more questions than answers. The ruling did not clearly state whether a nurse is allowed to perform Botox injections if acting pursuant to a physician’s orders. In White, the court held 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 a nursing license. Without clarification, this matter left unanswered questions for nurses, med spas, and clinics who could potentially benefit from having nurses perform Botox procedures.

Per the Board of Nursing, if a specific act is questionable, a declaratory statement may be requested to provide clarity. The Board of Nursing defines a declaratory statement as a means for resolving a controversy or answering questions or doubts concerning the applicability of statutory provisions, rules, or orders over which the board, or department when there is no board. On September 26, 2022, Jessica James, a registered nurse (R.N.) from Pensacola, Florida requested a declaratory statement on clarification for the task delegation of Botox Cosmetic. The case referenced Florida Statute § 464.003, specifically quoting, “The administration of medications and treatments as prescribed or authorized by a duly licensed practitioner authorized by the laws of this state to prescribe such medications and treatments.” Jessica James’ request went on to identify some prerequisites in her case for Botox task delegation eligibility by stating that the physician would first examine the patient and write an order detailing the specific muscles to be injected as well as the units per injection site before delegating the task to a registered nurse.

The Board of Nursing concluded that it is within the scope of practice for this particular case to allow the task delegation of administering of Botox. It should be noted that the Board of Nursing mentioned the “Petitioner’s specific and particular education, training, and experience” when making this decision. In this particular case, Jessica James, stated that she had experience in this field because she had observed aesthetic injections for 4 years and had completed Method Aesthetics Academy Level I training. This finding opens the door to the possibility for other qualified nurses to administer Botox under the supervision of a physician with the appropriate trainings and education. At the very least, this finding displays more progressive thought than previous rulings and statements that disallowed nurses to partake and assist in Botox injections. While this matter remains open ended and subject to specific conditions, it most definitely provides some transparency for those concerned.

 

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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 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.

Who Enforces Health and Safety Law?

Health and Safety laws are regulated by various agency officials and theses are arguably the most crucial jobs in our community. Most people do not take the time to adequately research their healthcare providers prior to receiving healthcare services or medication. However, several agencies have been established to safeguard and regulate the health and safety of the healthcare services that consumers receive. These agencies can’t replace individual due diligence but they make every attempt to prevent patient harm and to eliminate fraudulent activity in the healthcare system.

Florida Department of Health

The Florida Department of Health (DOH) was the first accredited public health system in the United States. Their mission is to protect and improve on the health of all people in Florida by regulating healthcare practitioners and facilities. They offer programs and services for the Florida community, but they are also responsible for the licensing and regulation of various healthcare practitioners and facilities. Various healthcare professions must be licensed and are regulated via the Florida Department of Health such as: medical doctors, acupuncturist, optometrists, and many more. Certain facilities such as piercing salons and pharmacies are also regulated by the Department of Health. Complaints can be filed against any of the practitioners or facilities, which will then be investigated by an officer for violations. The complaint is referred over to the Probably Cause Panel, which will determine whether to file an Administrative Complaint against the healthcare provider based on the weight of the evidence that is provided by the complainant and the provider who under investigation. It is not uncommon for the DOH to place an emergency restriction on a provider’s license if they pose an imminent danger to patient safety. If a violation is found, the Department of Health will determine appropriate disciplinary action to enforce the regulations, which includes, probation, suspension, or even revocation of a healthcare provider’s license.

Agency for Health Care Administration

The Agency for Health Care Administration (“AHCA”) was established in Florida to regulate the Medicaid system and healthcare providers who offer services to Medicaid beneficiaries. AHCA administers background screening, compiles healthcare data, and monitors the quality of care and civil rights complaints within healthcare facilities. They also license various healthcare facilities throughout Florida such as assisted living facilities, health care clinics, home health agencies, and many more.

Department of Health and Human Services

The Department of Health and Human Services has a family of agencies to provide services on local levels through state and county agencies. Some of these agencies include:

  • Centers for Medicare and Medicaid Services (“CMS”) proposes and publishes regulations yearly for those programs under medicare.gov, healthcare.gov, and more. CMS also enforces compliance with clearinghouses and healthcare providers and conducts audits regularly. CM provides health coverage to more than 100 million people through Medicare, Medicaid, the Children’s Health Insurance Program, and the Health Insurance Marketplace. CMS seeks to strengthen and modernize the Nation’s health care system, to provide access to high quality care and improved health at lower costs.
  • The Centers for Disease Control and Prevention (“CDC”) is one of the most widely known organizations within the Department of Health and Human Services. The mission statement of the CDC to protect the America people from health, safety and security threats, both foreign and in the U.S. Whether diseases start at home or abroad, are chronic or acute, curable or preventable, human error or deliberate attack, CDC fights disease and supports communities and citizens to do the same. CDC increases the health security of our nation. As the nation’s health protection agency, CDC saves lives and protects people from health threats. The CDC conducts critical science and provides health information that protects America against expensive and dangerous health threats, and responds when these arise. This is a science based organization that works to protect communities from health threats. The U.S. Secretary for Human and Health Services has authorized the CDC to carry out and enforce functions for isolation and quarantine to prevent exposure to contagious diseases.
  • The Office of Inspector General (“OIG”) is another department within the Department of Health and Human Services that works to improve the efficiency of many health based programs. They are the largest office in the Federal Government. They investigate complaints based on fraud, waste, abuse, and misconduct. The majority of the agency’s resources go towards the oversight of Medicare and Medicaid — programs that represent a significant part of the Federal budget and that affect this country’s most vulnerable citizens. The OIG has the authority to exclude individuals and entities from Federally funded health care programs for a variety of reasons, including a conviction for Medicare or Medicaid fraud. Those that are excluded can receive no payment from Federal health care programs for any items or services they furnish, order, or prescribe. This includes those that provide health benefits funded directly or indirectly by the United States (other than the Federal Employees Health Benefits Plan).
  • The Food and Drug Administration (FDA) is responsible for protecting the public health by assuring the safety, efficacy, and security of human and veterinary drugs, biological products, medical devices, our nation’s food supply, cosmetics, and products that emit radiation. The FDA conducts research on various food and drug safety protocols. They create reports to share with the general public to spread accurate information. The FDA also works closely with drug manufacturers to ensure the production of safe and effective drugs. They are accountable for overseeing quality control, delays, and discontinuations of drugs and medications. The agency works closely to reduce or prevent shortages. The supervision and regulation of the manufacturing, marketing, and distribution of tobacco products to protect the public health and to reduce tobacco use by minors is also a crucial role played by the FDA.

 

These are just a few of the hundreds of agencies established to protect our communities from safety and health emergencies. Each agency regulates their own sections within each community or program.

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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 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.

 

Americans with Disabilities Act (ADA) Requirements for Health Care Providers

By: Carolina Guio

The Americans with Disabilities Act (ADA) is a comprehensive civil rights law in the United States that prohibits discrimination based on disability in everyday activities, including medical services. The ADA applies to healthcare providers and has implications for how they must treat individuals with disabilities to ensure equal access to medical services. 

Title II of the ADA applies to public hospitals, clinics, and health care services operated by state and local governments. Title III of the ADA applies to privately-owned and operated hospitals, clinics, and health care providers. Under Title III of the ADA, businesses that provide services to the public are called public accommodations. Public accommodations are private entities such as a doctor’s office, a dentist’s office, a psychologist’s office, a clinic, a hospital, a group practice, urgent care, a general physician, a physical rehabilitation facility, or other healthcare professionals. 

All public accommodations must comply with basic nondiscrimination requirements prohibiting exclusion, segregation, and unequal treatment. Furthermore, the ADA requires healthcare providers to make reasonable accommodations to ensure that individuals with disabilities have equal access to medical care and health facilities. Some critical aspects of how the ADA applies to health care are as follows: 

Modification in Policies, Practices, and Procedures: The health care provider must make reasonable modifications in its policies, practices, and procedures to accommodate a person with a disability. However, it does not need to modify a policy if it would fundamentally alter the nature of its services. A fundamental alteration would be something that causes a change in the essential nature of the business. If a particular aid or service would result in an undue burden, the provider must offer another effective aid or service that would not result in such. The health care provider may require people who need aids or services to request a reasonable amount of time in advance, based on the time the provider will need to get the aid or service. However, the provider may not impose excessive advance notice requirements. Walk-in requests for aid and services must also be honored to the extent possible.

Physical Accessibility: Ramps, elevators, accessible restrooms, and other accommodations must be provided to enable patients with mobility impairments to navigate the facility.

Service Animals: When a service animal needs to enter a medical facility with its handler, it must be permitted to accompany their handler wherever the public is usually allowed to go. This includes patient rooms, cafeterias, waiting areas, and examination rooms. However, a service animal may be prohibited from strictly sterile environments like an operating room.

Effective Communication: The business’s overall resources determine (rather than a comparison to the fees paid by the customer needing the interpreter) what constitutes an undue burden. If a specific communication method would be an undue burden, the business must provide an effective alternative if there is one.

In order to assist small businesses in complying with the ADA, the IRS Code includes a Disabled Access Credit (Section 44) for businesses with 30 or fewer full-time employees or with total revenues of $1 million or less in the previous tax year. Eligible expenses may include the cost of undertaking barrier removal and alterations to improve accessibility, providing sign-language interpreters, or making material available in accessible formats such as Braille, audiotape, or large print. Section 190 of the IRS Code provides a tax deduction for businesses of all sizes for costs incurred in removing architectural barriers in existing facilities or alterations. The maximum deduction is $15,000 per year. 

A violation of ADA regulations occurs whenever a business subject to its provisions fails to fulfill its obligation to provide reasonable accommodations and access to individuals with disabilities. A medical provider may violate the ADA when treating a patient with a disability if the provider denies services, lacks effective communication, fails to make reasonable accommodations, charges extra fees, and limits the patient’s treatment options. 

Failure to comply with the ADA’s provisions could result in legal action and penalties. Complaints of Title III violations may be filed with the Department of Justice. In certain situations, cases may be referred to a mediation program sponsored by the Department. The Department is authorized to bring a lawsuit where there is a pattern or practice of discrimination in violation of Title III or where an act of discrimination raises an issue of general public importance. Title III may also be enforced through private lawsuits. It is not necessary to file a complaint with the Department of Justice (or any Federal agency) or receive a “right-to-sue” letter before going to court.

The ADA is vital to healthcare because it ensures complete access to healthcare services and facilities. It requires that healthcare providers deliver services in a way that ensures that all people have equitable access to care. It’s crucial for healthcare providers to be familiar with the ADA’s requirements to ensure that they provide equal and accessible medical care to individuals with disabilities.

 

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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 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.