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Regulation of Unlicensed Activity by the Florida Department of Health

In the State of Florida, the Department of Health regulates the unlicensed practices of health care professionals. Florida Statute § 456.065 states that any practice, performance, or delivery of health care services by an individual without a valid and active license to practice that profession is strictly prohibited. 

Not only can practicing without a valid license accumulate hefty fines for an offender, but it can also impose criminal penalties and/or sentences. The Unlicensed Activity Unit works with law enforcement and the state attorney’s offices to prosecute any individuals practicing without a license.

Among the list of regulated healthcare professions that require licensure, some include:

  • Massage Therapists;
  • Physicians;
  • Tattoo Artists;
  • Nurses;
  • Occupational Therapists;
  • Pharmacists;
  • Dietitians/Nutritionists;

Cease and Desist Notices

Once the Department of Health has probable cause to believe someone is practicing without an appropriate license, the department may issue a notice to the violator or any person who has aided and abetted the unlicensed person through employment, to cease and desist from the violation. If the cease-and-desist notice is violated, the department may seek an injunction or a writ of mandamus in the court to further enforce it. For each day that the unlicensed person continues to practice after the cease-and-desist notice is issued, it creates a separate violation.

Citations

In addition to cease-and-desist notices, the suspected violator may receive a citation of a minimum of $500 and up to $5,000 per incident. Subsequent costs the department is entitled to recover could include the cost of the investigation, prosecution, and attorney’s fees and costs if the department was required to seek enforcement for the cease-and-desist notice. Once the citation is served, the respondent has 30 days to dispute the matter, otherwise the citation becomes a final order.

Within 30 days of the finalized agency action, the affected party has a right to seek judicial review under Florida Statute § 120.68. Pursuant to the Florida Rule of Appellate Procedure 9.110(c), the proceedings are initiated by filing a notice of appeal with the Agency Clerk of the Department of Health, filing a second copy, and paying the filing fees required.

The reviewing court may decide any of the following:

  • Order agency action required by the law;
  • Order agency exercise of discretion;
  • Set aside agency action;
  • Remand the case;
  • Decide the issue between the parties.

In addition to one of the options stated above, the court may also order such ancillary relief that the court deems necessary to redress the effects of official actions that were wrongfully taken or withheld.

Criminal Penalties

Florida differentiates between practicing without a license for up to 12 months or more than 12 months. The severity of penalties may also increase if any activities performed while practicing unlicensed leads to serious bodily harm or injury.

Practicing without a valid license for a period of more than 12 months is a third-degree felony that is punishable with a minimum fine of $1,000 and a minimum mandatory period of incarceration for 1 year. This third-degree felony also includes individuals who apply for a position requiring a license without notifying the employer they do not have an active license and those who purport themselves as able to provide a healthcare service for which they are not properly licensed. 

Those who are practicing unlicensed for a period of up to 12 months can be convicted of a misdemeanor of the first degree and subject to a minimum of 30 days in prison and a $500 fine.

For individuals who practice without a valid license and subsequently cause bodily injury, it is a felony of the second degree. Serious bodily injury can mean a multitude of situations including death, brain damage, spinal damage, disfigurement, fracture of bones, dislocations of joints, limited sensory functions, or a condition that requires surgical repair following the unlicensed treatment. The minimum penalty is a fine of $1,000 and a minimum mandatory period of incarceration of 1 year.

The Takeaways

The unlicensed practice of health care can have serious impositions on the administrative side and criminal side. An individual practicing without a valid license may be delivered a cease-and-desist notice to halt their practice which can have further implications if the notice is not abided by. Furthermore, individuals practicing unlicensed may be subject to citations and criminal proceedings that include fines and imprisonment.  

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

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

Who Enforces Health and Safety Law?

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

Florida Department of Health

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

Agency for Health Care Administration

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

Department of Health and Human Services

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

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

 

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

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

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

 

Do I need to Register to Perform In-Office Surgeries in Florida

Developments of new drugs and medical technology have enabled physicians to perform treatments and procedures in the comfort of medical offices that were once only able to be performed in hospital settings. To confirm whether obtaining an Office Surgery License is required for your office to perform these surgeries you must carefully examine the rules on office surgeries because they have changed recently.

 

The Office Surgery Rule

On June 25, 2019, Governor Ron DeSantis signed Senate Bill 732 into law. This rule provides guidance on how office procedures can be performed. It also delivers certain standards for these offices and requires that any office performing office surgery procedures be registered with the Department of State. As of January 2020, all offices performing liposuctions over 1000ccs, or Level 2 or Level 3 surgeries must register and comply with statute requirements. According to the Florida Board of Medicine, any office performing “Level 2 procedures lasting more than 5 minutes, and all level 3 surgical procedures in an office setting must register the office with the department unless that office is licensed as a facility under chapter 395, 458.309(3) F.A.C.)”. In any case, office surgical procedures should not result in blood loss of more than 10 percent of estimated blood volume in a patient or directly engage any main blood vessels, or be considered life threatening in nature.

 

What are the levels of Office Surgery?

Level 1 Surgeries are procedures that require none to minimal pre-operative medications or tranquilizations. Any anesthesia used must be local and conscious altering medication is not administered. This includes but is not limited to excision of moles, warts, lesions, cysts; liposuction, removing less than 4000cc of fat, skin biopsies, drainage of superficial abscesses, etc.

Level 2 Surgeries can use sedation or peri-operative medicines that alter levels of consciousness which, in turn, require some post-operative monitoring. These procedures include, but are not limited to breast biopsies, colonoscopies, hernia repair, etc.

Level 3 Surgeries are procedures that absolutely should utilize general anesthesia or pre-operative sedation. This can include intravenous sedation, major conductive anesthesia, and general anesthesia.

For each level, there are specific outlines for medication, equipment, and registration requirements which can be found by visiting: http://www.doh.state.fl.us/mqa/medical/osr_home.html.

 

Pain Management Facilities

While anesthesia blocks are considered ‘surgical procedures’ by the Florida Board of Medicine, the level of sedation would determine the surgery procedure level.

 

How to Register for an Office Surgery License

The registering Surgeon should submit an Office Surgery Registration form with an original signature. The office must also provide proof of completion of necessary training (i.e. certificates/diplomas) by all physicians. If any physicians that will also be performing Level 2 or Level 3 surgeries are hired to the office after the approval, the Department must be notified immediately to update records.

 

Other Requirements

If an office plans to engage in surgeries that require a license and recognition with the Department of Health, there are ethics standards to be upheld and requirements that must be complied with. The requesting medical offices are subject to be inspected by the Department of Health and each office should have a designated physician responsible for ensuring compliance. Medical offices also need to exhibit the required minimal financial responsibility as outlined by the State.

*****************************************************

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.