17 June

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

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.

20 October

10 Comments

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How do I Open an Assisted Living Facility in Florida?

Posted by Jamaal R. Jones, Esq.

in Blog

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:

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.

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.

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

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.

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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17 April

58 Comments

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Establishing A Mobile IV Therapy Clinic in Florida

Posted by Jamaal R. Jones, Esq.

in Blog

Recently, I’ve received several inquiries from doctors, nurses and healthcare entrepreneurs who are considering opening mobile intravenous therapy clinics throughout Florida but have some legal concerns. In the past, there weren’t many Florida laws enacted to significantly regulate IV therapy clinics whether mobile or not and not much has changed over the years. Florida doesn’t have corporate practice of medicine limitations which is attractive for many of these individuals.

What is Intravenous Therapy?

The administration of intravenous (“IV”) therapy is defined as the therapeutic infusion and/or injection of substances (i.e. supplements, vitamins and minerals) through the venous peripheral system, consisting of activity which includes observing, initiating, monitoring, discontinuing, maintaining, regulating, adjusting, documenting, planning, interviewing and evaluating. It involves the administration of medication through a needle or catheter. It is believed by some that delivering medication directly into the bloodstream can help to quickly manage a patient’s pain or symptoms. In addition to treating illnesses, IV therapy proponents claim that it may also increase athletic performance, reduce jet lag, build immunity or help with dehydration by using vitamins and minerals. According to several practitioners, IV therapy should be customized for each patient’s needs to maximize results.

What is a Mobile IV Therapy Clinic?

A license issued by the Agency for Healthcare Administration (“Agency”) is required to operate a clinic in Florida. Each clinic location must be licensed separately regardless of whether the clinic is operated under the same business name or management as another clinic. In Florida, a clinic is an entity where health care services are provided to individuals and which tenders charges for reimbursement for those services, including a mobile clinic and a portable equipment provider. A mobile clinic means a movable or detached self-contained health care unit within or from which direct health care services are provided to individuals. Each mobile clinic must obtain a separate healthcare clinic license and must provide to the Agency, at least quarterly, its projected street location to enable the agency to locate and inspect the clinic.

Additionally, a home infusion therapy provider must be licensed as a home health agency or nurse registry. Nurse registries can refer nurses to patients to provide home infusion therapy. “Home infusion therapy provider” means an organization that employs, contracts with, or refers a licensed professional who has received advanced training and experience in intravenous infusion therapy and who administers infusion therapy to a patient in the patient’s home or place of residence. “Home infusion therapy” means the administration of intravenous pharmacological or nutritional products to a patient in his or her home.

A healthcare professional licensed as an acupuncturist, medical doctor, osteopathic doctor, nurse, midwife, speech pathologist, occupational therapist, physical therapist and others, whether or not incorporated, are exempt from the licensure requirements of Florida Statute 400.464 if they are acting alone within the scope of his or her professional license to provide care to patients in their homes.

The application for a healthcare clinic license must include information pertaining to the name, residence and business address, phone number, social security number and license number of the medical or clinic director of the licensed medical providers employed or under contract with the clinic.

Who Can Provide IV Therapy?

Most Florida licensed medical doctors, osteopathic doctors, dentists, registered nurses, medical assistants, and licensed practical nurses may provide iv therapy to patients if they possess the appropriate certifications and training. Several of these practitioners must complete a required 30-hour IV certification course. Regardless of who you hire to provide IV therapy they should have several years of experience with administering IVs.

1. Emergency Medical Technicians and Paramedics

Some have inquired about the appropriateness of hiring an emergency medical technician (“EMT”) or a paramedic to administer IV therapy to the clinic’s patients. Florida law makes a clear distinction between what types of services an EMT and paramedic may provide. An EMT is defined as a person who is certified by the Department of Health to perform “basic life support”. A paramedic is defined as someone who is certified by the DOH to provide basic and advanced life support. Paramedics hold a certificate of successful completion in “advanced cardiac life support” from the American Heart Association (“AHA”) or its equivalent, whereas EMTs are only required to hold a current AHA cardiopulmonary resuscitation course card. This distinction between basic and advanced life support is important. Florida law states that Advanced life support means assessment or treatment by an appropriately qualified individual to use techniques such as endotracheal intubation, the administration of drugs or intravenous fluids, cardiac monitoring and cardiac defibrillation. Basic life support means the assessment or treatment by a person qualified to use techniques as described in the EMT-Basic National Standard Curriculum or the National EMS Education Standards of the USDOT, which includes the administration of oxygen and other techniques. The DOH has taken action against several IV clinics, which were identified as posing a potential health threat to Florida’s residents and visitors. DOH investigators have issued several cease and desist notices to paramedics and EMTs for operating outside their scope of practice for practicing medicine without the proper license.

2. Medical Assistants

Medical Assistants involved in the performance of IV therapy must receive training and certification in IV procedures. All IV therapy provided by a medical assistant must be done under direct supervision of a practitioner who is trained and has experience in the administration, potential side effect and complications related to IV therapy. If services are provided in an office setting (or mobile clinic) the experienced practitioner should always present in the office whenever a medical assistant is providing IV therapy to a patient. In a Florida Board of Medicine case, the Board held that medical assistants may lawfully perform IV infusion therapy as long as it is performed under the direct supervision and responsibility of a Florida licensed physician that is always present in the office whenever a medical assistant is providing the therapy to a patient.

3. Licensed Practical Nurses

Aspects of IV therapy may be outside the scope of practice of a licensed practical nurse (“LPN”) unless under the direct supervision of the registered professional nurse or physician and which shall not be performed or initiated by the LPN without direct supervision include the following:

- - - - Initiation of blood and blood products;
      - Initiation or administration of cancer chemotherapy;
      - Initiation of plasma expanders;
      - Initiation or administration of investigational drugs;
      - Mixing IV solution;
      - IV pushes, except heparin flushes and saline flushes.

With the exception of those aspects of IV therapy deemed outside the scope of practice of the LPN, and subject to the approval of the institution at which the LPN is employed, any LPN who meets the competency knowledge requirements is authorized to administer intravenous therapy under the direction of a registered professional nurse. “Under the direction of a registered professional nurse” means that the registered professional nurse has delegated IV therapy functions to a qualified LPN. The registered professional nurse does not in all instances have to be on the premises in order for the licensed practical nurse to perform the delegated functions. Direct supervision means on the premises and immediately physically available. Only license practical nurses that have met the education and competency requirement in state nursing rules can provide infusion therapy.

Who Pays for IV Therapy?

The overwhelming majority of mobile IV therapy patients will be self-pay. Medicare, Medicaid and commercial payors typically won’t cover the costs for these treatments. However, I have seen reports where commercial payors may utilize specific per diem codes to pay certain infusion providers for services, supplies and equipment. Medicare has limited coverage for home infused drugs under the Part B and Part D benefit when it is medically justified.

Other Considerations

As a medical provider you must anticipate that medical emergencies may emerge even during the most routine situations. Providers should have adequate insurance coverage for claims arising out of injury to or death of a patient and damage to the property of others resulting from any cause for which the owner of the mobile IV clinic would be liable. In lieu of malpractice insurance, a provider may furnish a certificate of self-insurance as evidence that the provider has established adequate self-insurance to cover these types of risks.

Because IV injection involves direct access into the patient’s circulatory system, sterile equipment and sterile technique must be used to avoid the introduction of any pathogens into a patient’s bloodstream. The practitioner must inspect vials for signs of contamination such as particulate matter, cloudiness, or inappropriate color. The practitioner must use a sterile alcohol wipe to cleanse the top of the vial and withdraw the fluid form the vial using a sterile needle and a sterile syringe. Practitioners must follow Universal Precautions, as described by the Occupational Safety and Health Standards (“OSHA”). To ensure safe and proper administration of infusion drugs you should consider providing some of the following services:

- - Patient Assessment
  - Drug interaction monitoring
  - Patient education
  - Patient monitoring
  - Car planning
  - Maintenance of storage, preparation, dispensing and quality control of all infusion medications and equipment.

I would advise against treating individuals under the influence of alcohol, suffering from congestive heart failure, history of aneurysms, kidney or renal disease and high blood pressure. Patients should also be 18 or older and valid written consent forms should be signed by every patient.

You must have a medical director who is employed or contracted by the clinic licensee and who provides medical supervision, including appropriate quality assurance but not including administrative and managerial functions, for daily operations and training. Additionally, a health care practitioner may not serve as the clinic director if the services provided at the clinic are beyond the scope of that practitioner’s license.

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.

13 January

2 Comments

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AHCA Application for Exemption from Disqualification

Posted by Jamaal R. Jones, Esq.

in Blog

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:

You have been lawfully released from confinement, supervision or other nonmonetary condition imposed by the court for a disqualifying misdemeanor criminal offense;
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;
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
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:

Current Level II Screening;
Arrest Reports;
Court Dispositions;
Signed Statement (only if you cannot obtain the arrest report and/or court disposition);
Probation and/or Parole records;
Letters of Reference; and
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:

You are eligible to apply for exemption;
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;
Your employer agrees that you may continue working; and
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.

25 November

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What To Do If I Received an AHCA Administrative Complaint or Notice of Intent

Posted by Jamaal R. Jones, Esq.

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18 September

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

Posted by Jamaal R. Jones, Esq.

in Blog

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:

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.
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.
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.

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What To Do If I Received an AHCA Administrative Complaint or Notice of Intent

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