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AHCA Application for Exemption from Disqualification

If you are reading this article it means that you have probably received a letter from the Agency for Healthcare Administration (“AHCA”) stating that they have uncovered criminal offenses that disqualify you from working for a health care provider. AHCA may have uncovered this offense a result of background screening submitted as part of the employment process for a health care provider and/or participation as a Medicaid provider. This applies to clinical staff as well as facility owners, administrators and chief financial officers and those seeking enrollment as a provider in the Florida Medicaid program. Fear not, because you may be eligible to file an Exemption from Disqualification if you meet certain criteria.

Am I Eligible for Exemption?

Our firm can assist you with demonstrating to AHCA by clear and convincing evidence that an exemption from disqualification should be granted. The application will only be reviewed once all relevant supporting documents are received by AHCA. You are only eligible for Exemption from Disqualification if:

  1. You have been lawfully released from confinement, supervision or other nonmonetary condition imposed by the court for a disqualifying misdemeanor criminal offense;
  2. At least 3 years after you have been lawfully released from confinement, supervision, or other nonmonetary condition imposed by the court for a disqualifying felony criminal offense;
  3. You have completed any court-ordered fee, fine, fund, lien, civil judgment, application, costs of prosecution, trust, or restitution as part of the judgment and sentence for any disqualifying felony or misdemeanor in full; and
  4. If you have been designated as a sexual predator, sexual offender or career offender you are not eligible for an exemption from Disqualification.

 

Filing the Application

Filling out the application can be a bit tricky, so you should definitely hire a health law attorney that has experience with doing so in order to prevent delays in processing your application. In addition to completing the Application for Exemption from Disqualification you will need to provide AHCA with the following:

  1. Current Level II Screening;
  2. Arrest Reports;
  3. Court Dispositions;
  4. Signed Statement (only if you cannot obtain the arrest report and/or court disposition);
  5. Probation and/or Parole records;
  6. Letters of Reference; and
  7. Documentation of Rehabilitation

It is important to note that when you apply for exemption you must provide all arrest reports, including those that were not specifically listed in the notice that you received from AHCA. You will also need to provide all court dispositions no matter the plea, judgment, verdict or even if it was sealed or expunged from your record. All of these documents will need to be neatly organized and AHCA must receive the documents within 30 days from receipt of its letter. It may take a little bit of legwork to retrieve these documents, so it is important to contact our firm as soon as possible so that we don’t miss the deadline. AHCA rarely grants extensions for filing the application.

Finally, if you are a certified or licensed healthcare professional you may also have to file an application for exemption with the Florida Department of Health (“DOH”). Florida Statute 408.809(7)(a) states that AHCA may grant an exemption from disqualification to a person who is subject to this section and who: (1) Does not have an active professional license or certification from the DOH; or (2) has an active professional license or certification from the DOH but is not providing a service within the scope of that license or certification.You may also have to submit a signed background screening privacy policy acknowledging receipt of the privacy policy. Once the DOH receives your application they will review it and make a decision as long as that person is working in the scope of their license or certification.

What Happens After Filing?

Once AHCA received the documents, it will be transferred to the Exemption Team and assigned to one of their analysts. As stated earlier, the analyst is looking for clear and convincing evidence that the employee should not be disqualified from employment. The Agency will consider the following:

  • The circumstances surrounding the criminal incident(s) for which an exemption is sought;
  • The time period that has elapsed since the incident(s);
  • The nature of the harm caused to the victim;
  • The history of the employee since the incident(s);
  • Any other evidence or circumstances indicating that the employee will not present a danger if employed or continued employment is allowed; and
  • Whether the applicant has been arrested for or convicted of another crime, even if that crime is not a disqualifying offense.

Once you’ve submitted your application it takes approximately 30 days for AHCA to render its decision to you. Exemptions granted by one agency will be considered by other agencies, but it is not binding on subsequent agencies. It is possible for AHCA and DOH to deny your application even though you feel you meet the criteria for an exemption. In those instances, our firm will represent you before AHCA and DOH Boards if you chose to contest the Agency decision. You have 21 days from the date you sign for the certified letter to request an appeal. The administrative law judge will only decide whether the agency’s intended action is an abuse of discretion.

Job Status

Are you allowed to continue to work for your employer after you’ve submitted the application for Exemption from Disqualification? It depends on the circumstances. If you were screened and hired by your current employer on or before June 30, 2014 and this disqualification was due to a rescreening by the same employer, you may continue work if you meet all of the following criteria:

  1. You are eligible to apply for exemption;
  2. Your disqualifying offense was not disqualifying at the time of your last screening, but is now disqualifying and was committed before the date of your last screening;
  3. Your employer agrees that you may continue working; and
  4. You submit your application timely.

According to Florida Statute, 408.809(4) an employee may continue to perform her duties and her employer may continue to allow her to have contact with any vulnerable person (i.e. physical therapy patients) that would place employee in a role that requires background screening while her application for exemption from disqualification by the agency is being processed and under review. You also must make sure that your license stays active if you are a licensed healthcare provider, which means that you should submit any renewal forms and correct any omissions to prevent your license from expiring.

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

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

Healthcare Provider Marketing and Management Arrangements

Healthcare providers interested in entering into marketing or management arrangements with companies must structure these arrangements in such a way that they don’t violate any federal or Florida healthcare laws. Providers should avoid entering into any marketing and management arrangements, which gives the impression that they offered, paid, or solicited cash, or any other type of remuneration in exchange for referring patients to that provider. Failure to do so may result in an Anti-Kickback violation if the arrangement does not fit squarely within an Ant-Kickback Statute Safe Harbor.

Safe harbors that might be available to a healthcare provider, depending on the terms of the marketing or management arrangement, include, but, are not limited to the (1) referral; (2) personal services and management contract; and (3) referral arrangements for specialty services.

Providers may want to consider establishing relationships with lead generation companies for advertising purposes, rather than referral arrangements with marketing companies because they typically face less scrutiny than the latter.

Any payments made to the marketing and management companies must be for fair market value for the services that will be provided. Payments to the management and marketing companies must not fluctuate based upon the expectation or referrals or business that will be paid in whole or in party by a federal healthcare program.Percentage-based arrangements are looked at unfavorably by regulators and face significant scrutiny. Therefore, it is always safer to agree to fixed-fee or flat-fee (non-variable) compensation for management and marketing services.

Many providers believe that if they are not paying the management company directly that they are safe from potential liability. That is simply not true. Especially if the marketing or management company is also the owner of a healthcare clinic that benefits from the arrangement. These types of relationships look highly suspect. Providers must not enter into any contract with a practice management company if that management company receives any financial incentives form the referring provider for increasing outside referrals for designated healthcare services.

This informational article provides a brief overview of factors to consider prior to entering into these types of arrangements. However, there are many additional factors to consider. At Jones Health Law we careful scrutinize all potential marketing and/or marketing arrangements that our clients are contemplating. We counsel our clients on structuring the arrangement in such a way that it fits within an Ant-Kickback Statute Safe Harbor or an exception to the Stark Law (i.e. “Fair market value compensation” or “indirect compensation arrangement”). Further, we analyze whether the proposed arrangement could potentially violate any additional Health Law, business law, or agency rules. Additionally, we will help you draft a marketing and management agreements that best suits your needs.

Negotiating Malpractice Insurance in Physician Employment Contracts

Medical Malpractice Insurance is an essential part of any physician’s practice. According to the American College of Physicians, “Medical Malpractice” insurance is a specialized type of professional liability insurance that covers physician liability arising from disputed services that result in a patient’s injury or death. Injuries may present themselves immediately or at some time in the future. Malpractice insurance requirements will vary depending upon several factors including, but, not limited to how long you have been practicing, the size of your practice, specialty, prior claims filed against you, etc. Many providers receive their malpractice insurance  through their hospital employer while independent physicians must purchase their own. You should carefully examine your insurance policy to determine whether your coverage is for “claims-made” or “occurrence”.

 

Claims-Made

A “Claims-Made” policy protects physicians for treatment that was provided from the first day of coverage through the expiration date. Since coverage ends on the expiration date you much always renew your claims-made policy on the expiration date to continue coverage without any gaps. Each year that a claims-made policy is renewed the retroactive date remains the same. The renewed claims-made policy covers claims that are filed during the policy year for incidents that occurred on or after the retroactive date. This allows for previous years to be covered under the current policy. In short, if you continue to renew a claims-made policy the protections in place will continue for any covered incidents that occur between the retroactive date and the expiration date. Any injuries that occurred prior to the retroactive date or after the policy has expired are not covered, which is why continuously maintaining this type of policy is important.

Claims-made policies allow you to increase your policy limits or add new coverage as needed or when new coverages become available. A claims-made policy allows an insured to transfer their coverage from one insurer to another without purchasing tail coverage, which will be discussed below. This only applies if you have an active claims-made policy that is transferable to another insurer that offers prior acts coverage for this claims-made policy. In this instance, the new insurer will rollover the retroactive date from the previous policy into the new policy. The new policy now covers the same period as the old policy since it includes the retroactive date. Unlike occurrence coverage, claims-made limits do not restore each year. The policy limits remain the same as they were when you initially purchased the policy.

 

Tail Coverage

Claims-made policies don’t cover claims made after the expiration of the policy, so you will have to purchase “Tail” coverage to continue coverage. Tail coverage (aka Extended Reporting Endorsement) is very important if you have been covered under a claims-made policy and are changing insurers, switching employers, or retiring. Tail provides malpractice coverage during the transition for injuries that may have occurred in the past. Tail allows the policy holder to have continuous coverage from the policy’s retroactive date to the policy expiration date. Any claims that are filed during that period are protected. To obtain tail coverage you must pay a one-time fee shortly after cancellation of a policy, but it can be as much as 1.5 to 2 times a typical annual malpractice insurance premium. Again, if you are transferring coverage from one insurer to another insurer tail policy coverage may not be necessary if the new insurer applies a retroactive date to your old policy.

 

Occurrence

Most physicians will opt for occurrence coverage where available. Occurrence policies protect you for treatment rendered during the entirety of the policy period, no matter when the claim is reported. An occurrence policy will still defend you against claims even after the policy has expired. This policy offers permanent coverage for incidents that occur during the policy period. Additionally, occurrence limits “restore” each year so that claims paid for incidents arising from one policy year do not deplete limits available to cover claims from other years. Each year that this type of policy is in effect constitutes a distinct set of limits. The amount of coverage in each year of coverage is aggregated annually to increase the limits.

 

Here are a few questions to Ask yourself

(1) What kind of coverage do I have?

(2) What are the policy limits?

(3) Do I have tail coverage?

(4) What type of incidents does my policy protect me from?

(5) Is this policy transferable?

(6) Will the new insurer retroactively date the new policy?

 

Final Reminders

*When negotiating hospital employment, physicians should ask the hospital to pay for the tail coverage or ask the hospital to allow them to continue their current coverage so that tail coverage is not required.

*Many physicians who are employed by hospitals may be required to obtain tail since most hospitals are self insured and won’t provide the incoming physician with prior acts coverage.

*Purchasing tail coverage may not be a choice. Some hospital bylaws require physicians to maintain malpractice coverage even after they are no longer with that hospital in order to protect from any potential future claims that may arise for any treatment that was provided by the insured while on staff.

*Some hospitals will not grant staff privileges to a physician with any gaps in their malpractice coverage.

*You want to make sure that you policy is always in effect and that it covers all potential claims because legal fees and costs can cost you thousands of dollars. These legal costs are in addition to any settlements that would have to be paid to the injured patient, which can range from a few thousand dollars to millions.

*The claims-made policy is more flexible and more cost effective especially for those who are still in the early years of their practice.

*“Claims-made” to the insurance company after the coverage period ends will not be covered, even if the alleged incident occurred while the policy was in effect. In other words you would personally be on the hook for any damages!

*Occurrence policies are permanent, which means that you don’t have to renew the policy to maintain coverage for any gaps in coverage. You have separate limits each year you were insured so past claims limit your coverage in the years ahead. These types of policies are becoming increasingly difficult to find.

*You should negotiate tail coverage in an employment contract with a new employer.

*Tail Coverage is only necessary when a Claims-Made policy expires and the insured cannot secure “nose” coverage for prior acts from a new insurance carrier.

*Medical Malpractice usually does not cover liability arising from criminal acts or sexual misconduct.

***This blog post does not constitute legal advice and is only intended for educational purposes only. You should consult a licensed attorney in the State of Florida that specializes in healthcare law.***

Annual Meeting of The Florida Society of Anesthesiologists

Jamaal R. Jones recently attended the Annual Meeting of the Florida Society of Anesthesiologists at the Breakers Hotel in Palm Beach, Florida.

The end goal of the meeting was for participants to:

1. Assess the potential application of emerging issues and advances that affect the practice of anesthesia; and

2. Apply contemporary practice management skills and knowledge of regulatory issues to the efficient and safe delivery of patient care.

If you are an Anesthesiologist, Anesthesiologist Assistant, or Nurse Anesthetist and would like to find out the various ways in which Jones Health Law can be of assistance to please contact us!

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