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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.

 

Florida Legal Requirements for an Adult Family Care Home

Adult Family Care Homes are Agency for Health Care Administration (“AHCA” or Agency) licensed facilities that provide care to disabled adults and frail elders in a family-type living environment. These adults choose to live with an individual or a family in a private home. One key distinction between an Assisted Living Facility and an Adult Family Care Home (“AFCH”) is that the Provider must also live in the home, which can be owned or rented by that Provider. The home has to meet the local zoning requirements prior to obtaining the AHCA license. The intent behind the Adult Family Care Home Act is to allow for residents of AFCHs to remain as independent as possible and to avoid placement in a nursing home or other licensed facility.

 

AFCH means a full-time, family-type living arrangement, in a private home, under which a person who owns or rents the home provides room, board, and personal care, on a 24-hour basis, for no more than five disabled adults or frail elders who are not relatives. Personal care services includes individual assistance with or supervision of the activities or daily living and the self-determination of medication, and other similar services. A resident who requires 24-hour nursing supervision may not be retained in an AFCH unless such resident is an enrolled hospice patient and the resident’s continued residency is mutually agreeable to the resident. Certain types of family-type living arrangements are not required to be licensed as an AFCH.

 

Although no more than five adults may reside in the home, the licensed maximum capacity of each AFCH is based on the service needs of the residents and the capability of the provider to meet the needs of the residents. Any relative who lives in the adult family-care home and who is a disabled adult or frail elder must be included in that maximum resident count.

 

AFCH Requirements and License Restrictions

AFCHs must designate at least one licensed space for a resident receiving optional state supplementation. AFCHs are required to provide all residents: (1) room and board; (2) assistance necessary to perform the activities of dialing living; (3) assistance necessary to administer medication; (4) supervision of residents; (5) health monitoring; and (6) social and leisure activities.

 

Each AFCH license is effective for 2 years from the date of issuance or renewal. These licenses are non-transferable and is valid only for the provider named, the capacity stated, and the premises described on the license.

 

AFCHs may advertise but these accommodations and services may not be listed in the yellow pages under the heading of “nursing home” or “assisted living facility”. The advertisement must include the term Adult Family-Care Home and the license number.

 

Resident Requirements

In order to be admitted as a resident of an AFCH, an individual must be: (1) at least 18 years of age; (2) free from apparent signs and symptoms of any communicable disease; (3) capable of self-preservation in an emergency situation involving the immediate evacuation of the AFCH, with ambulation; (4) be able to perform, with supervision or assistance, activities of daily living; (5) not be a danger to self or others; (6) not require licensed professional mental health treatment on a 24-hour a day basis; and (7) not be bedridden, to name a few.

 

Prior to admission to an AFCH, an individual must have a face-to-face medical examination conducted by a licensed healthcare provider. Every year thereafter, or after a significant change, the resident must have a face-to-face medical examination.

 

Prior to, or at the time of admission, the AFCH must provide the resident or their representative with the following: (1) a copy of the AFCH house rules; (2) Resident’s Bill of Rights, and (3) the procedure for making complaints to AHCA, the Department of Children and Families, or the Florida Department of Health.

 

Each resident has a statutorily defined Bill of Rights that the AFCH is required to adhere to. Some of these rights include: (a) living in a safe and decent living environment, free from abuse and neglect; (b) keep and use the resident’s own clothes and other personal property in the resident’s immediate living quarters, so as to maintain individuality and personal dignity; (c) unrestricted private communication, including receiving and sending unopened correspondence, having access to a telephone, and visiting with any person of his or her choice, at any time between the hours of 9 a.m. and 9 p.m. at a minimum; (d) management or resident’s own financial affairs; (e) share a room with the resident’s spouse if both are residents of the home; (f) exercise of civil and religious liberties; (g) access to adequate and appropriate healthcare; and (i) to be free from chemical and physical restraints.

 

Each resident must enter into a residency agreement with the provider, which is to be executed prior to or on the date of admission. The residency agreement must be kept on file for five years after expiration of the agreement. Additionally, each residency agreement must specify the personal care and accommodations to be provided by the AFCH, the rate or charges, a requirement of at least 30 days’ notice before a rate increase, and any other provisions required by AHCA or any other governing agency.

 

A resident shall not be discharged without 30 days’ written notice stating reasons for the move or transfer. The only exception to this written notice requirement is if the resident’s health requires immediate relocation; resident’s behavior poses an imminent danger to self or others, significantly interferes with the orderly operation of the home, or is continually offensive to other residents; or if the AFCH had its license denied, revoked, or voluntarily surrendered its license.

 

Provider Requirements

An AFCH Provider must bet at least 21 years old, live in the home, complete the required training and be able to read, write and complete written materials involved in applying for an AFCH license and maintaining an AFCH.

 

Each AFCH Provider must complete training and education programs. Training and education programs must include information relating to the appropriateness of placement of residents in an AFCH; identifying and reporting abuse, neglect, and exploitation; monitoring the health of residents and identifying and meeting the special needs of disabled adults and frail elders.

 

Conclusion

There are many other considerations that one must take into account when deciding to run an AFCH. An AFCH has certain personal services and supervision requirements, incident reporting requirements, health monitoring, food service and nursing services requirements, relief person and training requirements, records requirements, general requirements, fire safety standards, and emergency procedure requirements that were not addressed in this blog post but are critically important to operating your AFCH. If you are interested in operating an AFCH I would encourage you contact an experience health law attorney at Jones Health Law to assist you with navigating these requirements and others.

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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.

Can I Continue to Run a Medical Practice After the Sole Physician’s Death?

Authored by Marcus Leonard and Jamaal R. Jones, Esq.

Authored by Marcus Leonard and Jamaal R. Jones, Esq.

Inevitably, we will all pass away at some point in hopefully the distant future. Some of our deaths will be expected while others will come as a complete shock. Many people formulate a plan for after their passing and make arrangements accordingly for the succession of their personal and business affairs and belongings, while others do not. Occasionally, that deceased person happens to be the only physician in the medical practice. The staff and surviving family members have to quickly determine what their options are and whether they can legally continue to operate the practice without the physician.

Florida does not have the same Corporate Practice of Medicine Prohibitions as other states. In short, this means that you do not have to be a licensed medical doctor or doctor of osteopathy to own a medical practice. Many people erroneously believe that because of this fact they can continue to run the physician’s practice without taking any further action after she passes away. The Florida Health Care Clinic Act (the “Act”) requires that all health care clinics operating in Florida maintain a valid license by the State unless they fall within a statutory exemption. Also, if the health care clinic is cash-pay only and not accepting reimbursement from a commercial payor, Medicare or Medicaid then Florida law allows the business to continue to run without first obtaining the license. According to the Act, a “clinic” is defined as an entity which provides health care services to patients and bills third party payers for reimbursement for providing those health care services. Clinics that are “wholly owned by one or more licensed health care practitioners” are exempt from obtaining a health care clinic license. Thus, if a clinic is owned by a licensed health care practitioner who is supervising the services performed at the clinic and who is legally responsible for the entity’s compliance with all federal and state laws, the clinic falls within one of the exceptions and is exempt from the Act’s licensure requirements. However, in the untimely event that a sole physician/owner passes away, the clinic is no longer afforded exemption from the Act’s licensing requirements and is no longer in compliance with the law.

 

What are my Options?

In this instance, the family members have the following choices: (1) close the practice; (2) sell the practice; or (3) apply for a health care clinic license. If the decision is made to close the practice then you have to make sure that you wind up and dissolve the business accordingly. Alternatively, it can be tricky if the decision is made to sell the practice. Even if you hire another physician to provide treatment to the patients while you try to find a buyer for the practice you will still be violating the Act. As a result, you must not continue to provide health care services until the practice is sold to someone or an entity that qualifies for an exemption under the Act or until you receive a health care clinic license.

This is important because Florida law provides that an insurer is not required to pay for medical treatment that is not lawfully provided. The plain language of the Act makes clear that a claim for reimbursement made by a clinic that is not properly licensed or that is otherwise operating in violation of the Act, constitutes an unlawful charge that is deemed non-compensable and unenforceable.

Filing the application with the Agency for Health Care Administration for a health care clinic license it tedious and must be done carefully or you risk denial. Also, the applicant should not expect to receive the license expeditiously.

 

Penalties

Under the Act, it is considered theft for an entity that does not have a health care clinic license and does not meet the requirements for an exemption to submit a charge for reimbursement. You can be charged with committing a third-degree felony if you operate an unlicensed clinic. Each day that the person violates the act is considered a separate offense. If a physician who is working for a clinic knows or has reasonable cause that the clinic is operating without a license and fails to report the clinic then that physician will be reported to the medical board for failure to report the clinic. There will also be administrative penalties imposed upon those who practice without a license.

 

Conclusion

A clinic is required to register for a license under the Act even if they were previously exempt from licensure requirements prior to the physician’s death unless some other applicable exemption exists. A sole health care provider should create a plan for succession in the event of their death. For example, upon the physician’s death the shares of the practice can “automatically” transfer to another physician of their choosing so that there isn’t a gap in care to patients. This would require careful planning and legal considerations beforehand. Our firm is well equipped with knowledgeable and experienced health law attorneys who can assist you with planning for this difficult event.

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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.

How do I Open an Assisted Living Facility in Florida?

How do I Open a Florida Assisted Living Facility?

According to the Florida Department of Elder Affairs, an Assisted Living Facility (“ALF”) is a residential care facility that provides housing, meals, personal care and supportive services to older persons and disabled adults who are unable to live independently. ALFs are intended to be a less costly alternative to more restrictive institutional settings for individuals who do not require 24-hour nursing supervision.

 

Determining the right Size and Location for your ALF

Florida ALFs can range in size from a single resident to hundreds and may contain individual apartments or suites that a resident shares with others.

An ALF is a “Community residential home”, which is a dwelling licensed to service residents who are clients of the Department of Elderly Affairs (“EA”), the Agency for Persons with Disabilities (“APD”), the Department of Juvenile Justice (“DJJ”), or the Department of Children and Families (“DCF”) or licensed by the Agency for Health Care Administration (“AHCA” or “Agency”) which provides a living environment for 7 to 14 unrelated residents who operate as the functional equivalent of a family, including such supervision and care by supportive staff as may be necessary to meet the physical, emotional and social needs of the residents. Examples of residents include: frail elders; a person who has a handicap; a person who has a developmental disability; a non-dangerous person who has a mental illness; a child who is found to be dependent; or a child in need of certain services.

Homes of 6 or fewer residents which otherwise meet the definition of a community residential home are considered a single-family unit and a non-commercial, residential use for the purpose of local laws an ordinance. It is important to note that, homes of 6 or fewer residents which otherwise meet the definition of a community residential home must be allowed in a single-family or multifamily zoning without approval by the local government, provided that such homes are not located within a radius of 1,000 feet of another existing such home with six or fewer residents or within a radius of 1,200 feet of another existing community residential home.

Facilities licensed for 17 or more residents are required to maintain an alert staff for 24 hours per day. The standards for facilities with 16 or fewer beds must be appropriate for a non-institutional residential environment; however, the structure may not be more than two stories in height and all residents who cannot exit the facility unassisted in an emergency must reside on the first floor.

 

Local Government Requirements

When a site for a community residential home has been selected in a area zoned for multifamily, the Agency must notify the Chief Executive Officer of the local government in writing and include in such notice: (1) the specific address of the site: (2) the residential licensing category; (3) the number of residents; and (4) the community support requirements of the program. This notice must also contain a statement from AHCA indicating the licensing status of the proposed community residential home and specify how the home meets applicable licensing criteria for the safe care and supervision of clients in the home. The local government will then review AHCA’s notification in accordance with the zoning ordinance of the jurisdiction.

Once under review, the local government may: (1) determine that the siting of the community residential home is in accordance with local zoning and approve the siting. If the siting is approved, the sponsoring agency may establish the home at the site selected.; fail to respond within 60 days. If the local government fails to respond within such time, the sponsoring agency may establish the home at the site selected.; and (3) Deny the siting of the home.

No ALF may commence any construction which will expand the size of the existing structure unless the licensee first submits to AHCA proof that such construction will be in compliance with the applicable local zoning requirements.

 

Assisted Living Facility Licenses

Every ALFs, no matter the size has to obtain a facility license from AHCA. Each application for licensure must comply with all of the general health care licensing requirements for any type of healthcare facility. Each license issued will indicate the name of the licensee, the type of provider or service that the licensee is required or authorized to operate or offer, the date the license is effective, the expiration date of the license, the maximum capacity of the licensed premises and any other information required or deemed necessary by AHCA. You will be required to take the ALF Director’s course and submit to a level II FBI background test when submitting your application.

The applicant must also identify all other homes or facilities, including the addresses and the license or licenses under which they operate, if applicable, which are currently operated by the applicant or administrator and which provide housing, meals, and personal services to residents. Separate licenses are required for facilities maintained in separate premises, even though operated under the same management. A separate license will not be required for separate buildings on the same grounds.

They must also provide the location of the facility for which a license is sought and documentation, signed by the appropriate local government official, which states that the applicant has met local zoning requirements. The applicant must provide the name, address, date of birth, social security number, education, and experience of the administrator, if different from the applicant.

The applicant must also provide proof of liability insurance and that it has met the requirements of a community residential home. They must prove that the facility has received a satisfactory fire safety inspection and documentation of a satisfactory sanitation inspection of the facility. All licensed facilities must have an annual fire inspection conducted by the local fire marshal or authority having jurisdiction.

A provisional license may be issued to an applicant filing an initial application for licensure or filing an application for change of ownership (“CHOW”). A provisional license must be limited in duration to a specific period of time not to exceed 6 months. An occupational license may not be issued by a county or municipality if it is being obtained for the purpose of operating a facility without first concluding that the applicant has been licensed to operate the ALF at the specified location or locations by the agency.

In addition to the standard ALF license, a facility may also obtain three unique specialty licenses:

  1. Extended Congregate Care (“ECC”)

An ALF with an ECC license provides the basic services of an assisted living facility as well as: limited nursing services and assessments; total help with bathing, dressing grooming and toileting; measurement and recording of vital signs and weight; dietary management, including special diets, monitoring nutrition and food and fluid intake; supervision of residents with dementia and cognitive impairments; rehabilitative services; escort services to medical appointments; and educational programs to promote health and prevent illness.

 

  1. Limited Nursing Services (“LNS”)

A limited nursing services specialty license enables an ALF to provide, direct or through contract, a select number or nursing services in addition to the personal services that are authorized by the standard license. An ALF with an LNS license provides the basic services of an ALF as well as additional nursing services. Some of the limited nursing services are: nursing assessments; care and application of routine dressings; care of casts, braces, and splints; administration and regulation of portable oxygen; catheter, colostomy, and ileostomy care and maintenance; and application of cold or heat treatments, passive range of motion exercises, ear and eye irrigations.

 

  1. Limited Mental Health (“LMH”)

An ALF that serves 3 or more mentally ill or disabled residents must obtain an LMH specialty license. For the purposes of assisted living licensure, a mental health resident is defined as an individual who receives social security disability income (“SSDI”) due to a mental disorder or supplemental security income (“SSI”) due to a mental disorder, and receives optional state supplementation (“OSS”). An LMH license must be obtained if an ALF serves 3 or more mental health residents. The LMH license requires basic staff training in mental health issues and requires the ALF to: ensure that the resident has a community living support plan; provide assistance to the resident in carrying out the plan; and maintain a cooperative agreement for handling emergency resident matters. A facility can serve 1 or 2 mental health residents without an LMH license.

 

Duties to ALF Residents

  1. Contracts

The presence of each resident in an ALF must be covered by a contract, executed at the time of admission or prior to, between the ALF and the resident or his or her designee or legal representative. Each party to the contract must be provided with a duplicate original of the contract, and the ALF must keep the contracts on file for at least 5 years after the contract expires.

Each contract must contain express provisions specifically setting forth the services and accommodations to be provided by the facility; the rates or charges; provision for at least 30 days’ written notice of a rate increase; the rights, duties, and obligations of the residents; and other matters that the parties deem appropriate. The contract must include a refund policy to be implemented at the time of the resident’s transfer, discharge, or death. The purpose of any advance payment and a refund policy for such payment, including any advance payment for housing, meals, or personal services must be covered in the contract.

 

  1. Physical or Chemical Restraints

The use of physical restraints is limited to half-bed rails as prescribed and documented by the resident’s physician with the consent of the resident or, if applicable, the resident’s representative or designee or the resident’s surrogate, guardian, or attorney in fact. The use of chemical restraints is limited to prescribed dosages of medications authorized by the resident’s physician and must be consistent with the resident’s diagnosis. Residents who are receiving medications that can serve as chemical restraints must be evaluated by their physician at least annually to make an updated assessment.

 

ALF Duties & Responsibilities

ALF employees who are properly licensed to do so, may administer medications to residents, take residents’ vital signs, manage individual weekly pill organizers for residents who self-administer medication, give prepackaged enemas ordered by a physician, observe residents, document observations or the appropriate resident’s record, report observations to the resident’s physician, and contract or allow a resident or a resident’s representative, designee, surrogate, guardian, or attorney in fact to contract with a third party.

An ALF with 17 or more beds must have on the premises at all times a functioning automated external defibrillator with a local emergency medical services medical director. Facility staff may withhold or withdraw CPR or the use of an AED if presented with an order not to resuscitate.

The administrator or owner of an ALF must maintain personnel records for each staff member which contain, at a minimum: (1) documentation of background screening, if applicable; (2) documentation of compliance with all training requirements of this party or applicable rule; and (3) a copy of all licenses or certification held by each staff who performs services for which licensure or certification is required. The administrator or owner must also maintain liability insurance coverage that is in force at all times.

Every ALF must maintain records containing copies of all inspection reports pertaining to the facility that have been issued by AHCA to the ALF for a minimum of 5 years form the date the reports are filed or issued. Every ALF shall post a copy of the last inspection report of the agency for that facility in a prominent location within the facility so that it is accessible to all residents and to the public. A copy of this report must be provided to any resident of the facility upon request.

The administrator of a facility must ensure that a written notice of the rights, obligations, and prohibitions are posted in a prominent place in each facility and read or explained to residents who cannot read. Examples of some of the rights include: (a) a safe and decent living environment, free from abuse and neglect; (b)  to be treated with consideration and respect and with due recognition or personal dignity, individuality, and the need for privacy; (c) retain and use his or her own clothes and other personal property in his or her immediate living quarters; and (d) unrestricted private communication, including receiving and sending unopened correspondence, access to a telephone, and visiting with any person of his or her choice, at any time between the hours or 9a.m. and 9 p.m. at a minimum.  The notice must include the statewide toll-free telephone number and email address of the State Long-Term Care Ombudsman Program and the telephone number of the local ombudsman council, the Elder Abuse Hotline operated by the Department of Children and Families, and, if applicable, Disability Rights Florida, where complaints may be lodged. The Adverse Incident Reporting rules and Resident Health Assessment forms must be part of each resident’s file.

Each ALF must prepare and update annually its comprehensive emergency management plan in accordance with the “Emergency Management Criteria for Assisted Living Facilities.” The plan must be submitted for review and approval to the local emergency management agency. There are eight different items that the emergency management plan must address, at a minimum, including: (1) provisions for all hazards; (2) identification of and coordination with the local emergency management agency; and (3) the identification of staff responsible for implementing each part of the plan.

 

Advertising

While an ALF facility is under construction, the owner may advertise to the public prior to obtaining a license. The ALF must include the facility’s license number as given by AHCA in all advertising. All advertising must include the term “Assisted Living Facility” before the license number.

 

Final Thoughts

As you have read, there are many requirements to opening and operating a Florida licensed Assisted Living Facility. This article does not attempt to highlight all of the legal requirements and should only be considered an educational overview. There are many legal considerations and requirements that were not addressed in this article. It is in your best interest to contact an experienced health care attorney if you are considering opening or purchasing an ALF so that they can help you navigate the process.

It’s important to remember that residents living in an ALF cannot have medical conditions that require 24-hour nursing supervision. The only exception is for an existing resident who is receiving licensed hospice services while residing in the ALF. If an ALF can no longer provide or arrange for service in accordance with the resident’s service plan and needs and the ALF’s policy, the ALF must make arrangements for relocating the person. The owner or administrator of a facility is responsible for determining the appropriateness of admission to the facility and for determining the appropriateness of a resident’s continuing stay in the facility.

Any person who reports a complaint concerning a suspected violation of resident rights or concerning services and conditions in facilities, or who testifies in any administrative or judicial proceeding arising from that complaint will receive immunity from any civil or criminal liability, unless that person has acted in bad faith or with malicious purpose or the court finds that there was a complete absence of a justifiable issue of either law or fact raised by the losing party.

Once you obtain your license but fail to timely file a renewal application and the license application fee with the Agency you will incur a $50 per day late fee; however, the aggregate amount of the late fee may not exceed 50 percent of the licensure fee or $500, whichever is less. The applicant must pay the late fee before a late application is considered complete and failure to pay the late fee is considered an omission from the application for licensure.

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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.

 

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.

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