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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.

 

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

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

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

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

How Might this Impact my Healthcare Facility or License?

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

What to expect at the Division of Administrative Hearings?

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

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

Examples of Violations

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

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

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

What are the Penalties?

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

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

Conclusion

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

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

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

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