19 September

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Board of Nursing Issues Declaratory Statement Regarding Botox Injections by RNs

The Scope of Practice for a Registered Nurse isn’t always clear. The Florida Nurse Practice Act (Florida Statute Ch. § 464) and the Rules of the Florida Board of Nursing (Florida Administrative Codes, Title 64B9) exist to establish regulations, authority, and guidance regarding the practice of nursing. The issue of whether a registered nurse can legally administer Botox has been clearly addressed under Florida law. Previous rulings set a precedent when a nurse was disciplined for performing Botox injections on a client without a physician’s direct orders (Department of Health v. Trisha Lorraine White, R.N. Case Number 2016-13884). However, this ruling seemed to leave more questions than answers. The ruling did not clearly state whether a nurse is allowed to perform Botox injections if acting pursuant to a physician’s orders. In White, the court held that even pursuant to a physician’s orders a registered nurse does not possess the requisite educational preparation to perform the procedure and that doing so would be practicing beyond the scope of a nursing license. Without clarification, this matter left unanswered questions for nurses, med spas, and clinics who could potentially benefit from having nurses perform Botox procedures.

Per the Board of Nursing, if a specific act is questionable, a declaratory statement may be requested to provide clarity. The Board of Nursing defines a declaratory statement as a means for resolving a controversy or answering questions or doubts concerning the applicability of statutory provisions, rules, or orders over which the board, or department when there is no board. On September 26, 2022, Jessica James, a registered nurse (R.N.) from Pensacola, Florida requested a declaratory statement on clarification for the task delegation of Botox Cosmetic. The case referenced Florida Statute § 464.003, specifically quoting, “The administration of medications and treatments as prescribed or authorized by a duly licensed practitioner authorized by the laws of this state to prescribe such medications and treatments.” Jessica James’ request went on to identify some prerequisites in her case for Botox task delegation eligibility by stating that the physician would first examine the patient and write an order detailing the specific muscles to be injected as well as the units per injection site before delegating the task to a registered nurse.

The Board of Nursing concluded that it is within the scope of practice for this particular case to allow the task delegation of administering of Botox. It should be noted that the Board of Nursing mentioned the “Petitioner’s specific and particular education, training, and experience” when making this decision. In this particular case, Jessica James, stated that she had experience in this field because she had observed aesthetic injections for 4 years and had completed Method Aesthetics Academy Level I training. This finding opens the door to the possibility for other qualified nurses to administer Botox under the supervision of a physician with the appropriate trainings and education. At the very least, this finding displays more progressive thought than previous rulings and statements that disallowed nurses to partake and assist in Botox injections. While this matter remains open ended and subject to specific conditions, it most definitely provides some transparency for those concerned.

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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.

12 September

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Who Enforces Health and Safety Law?

Posted by Jamaal R. Jones, Esq.

in Blog

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.

07 September

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Americans with Disabilities Act (ADA) Requirements for Health Care Providers

Posted by Jamaal R. Jones, Esq.

in Blog

By: Carolina Guio

The Americans with Disabilities Act (ADA) is a comprehensive civil rights law in the United States that prohibits discrimination based on disability in everyday activities, including medical services. The ADA applies to healthcare providers and has implications for how they must treat individuals with disabilities to ensure equal access to medical services.

Title II of the ADA applies to public hospitals, clinics, and health care services operated by state and local governments. Title III of the ADA applies to privately-owned and operated hospitals, clinics, and health care providers. Under Title III of the ADA, businesses that provide services to the public are called public accommodations. Public accommodations are private entities such as a doctor’s office, a dentist’s office, a psychologist’s office, a clinic, a hospital, a group practice, urgent care, a general physician, a physical rehabilitation facility, or other healthcare professionals.

All public accommodations must comply with basic nondiscrimination requirements prohibiting exclusion, segregation, and unequal treatment. Furthermore, the ADA requires healthcare providers to make reasonable accommodations to ensure that individuals with disabilities have equal access to medical care and health facilities. Some critical aspects of how the ADA applies to health care are as follows:

Modification in Policies, Practices, and Procedures: The health care provider must make reasonable modifications in its policies, practices, and procedures to accommodate a person with a disability. However, it does not need to modify a policy if it would fundamentally alter the nature of its services. A fundamental alteration would be something that causes a change in the essential nature of the business. If a particular aid or service would result in an undue burden, the provider must offer another effective aid or service that would not result in such. The health care provider may require people who need aids or services to request a reasonable amount of time in advance, based on the time the provider will need to get the aid or service. However, the provider may not impose excessive advance notice requirements. Walk-in requests for aid and services must also be honored to the extent possible.

Physical Accessibility: Ramps, elevators, accessible restrooms, and other accommodations must be provided to enable patients with mobility impairments to navigate the facility.

Service Animals: When a service animal needs to enter a medical facility with its handler, it must be permitted to accompany their handler wherever the public is usually allowed to go. This includes patient rooms, cafeterias, waiting areas, and examination rooms. However, a service animal may be prohibited from strictly sterile environments like an operating room.

Effective Communication: The business’s overall resources determine (rather than a comparison to the fees paid by the customer needing the interpreter) what constitutes an undue burden. If a specific communication method would be an undue burden, the business must provide an effective alternative if there is one.

In order to assist small businesses in complying with the ADA, the IRS Code includes a Disabled Access Credit (Section 44) for businesses with 30 or fewer full-time employees or with total revenues of $1 million or less in the previous tax year. Eligible expenses may include the cost of undertaking barrier removal and alterations to improve accessibility, providing sign-language interpreters, or making material available in accessible formats such as Braille, audiotape, or large print. Section 190 of the IRS Code provides a tax deduction for businesses of all sizes for costs incurred in removing architectural barriers in existing facilities or alterations. The maximum deduction is $15,000 per year.

A violation of ADA regulations occurs whenever a business subject to its provisions fails to fulfill its obligation to provide reasonable accommodations and access to individuals with disabilities. A medical provider may violate the ADA when treating a patient with a disability if the provider denies services, lacks effective communication, fails to make reasonable accommodations, charges extra fees, and limits the patient’s treatment options.

Failure to comply with the ADA’s provisions could result in legal action and penalties. Complaints of Title III violations may be filed with the Department of Justice. In certain situations, cases may be referred to a mediation program sponsored by the Department. The Department is authorized to bring a lawsuit where there is a pattern or practice of discrimination in violation of Title III or where an act of discrimination raises an issue of general public importance. Title III may also be enforced through private lawsuits. It is not necessary to file a complaint with the Department of Justice (or any Federal agency) or receive a “right-to-sue” letter before going to court.

The ADA is vital to healthcare because it ensures complete access to healthcare services and facilities. It requires that healthcare providers deliver services in a way that ensures that all people have equitable access to care. It’s crucial for healthcare providers to be familiar with the ADA’s requirements to ensure that they provide equal and accessible medical care to individuals with disabilities.

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03 August

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Everything You Need to Know About Remote Closings

Posted by Jamaal R. Jones, Esq.

in Blog

With the rise of the digital age and the pandemic pushing remote opportunities farther than ever, real estate did not fall behind. Emerging digital platforms and new laws provide more flexibility than ever to potential buyers and investors in real estate. Remote closings make it so that the parties involved in a real estate transaction do not have to be physically present for the closing on their contract. Remote closings allowed for real estate transactions to continue during the COVID 19 pandemic. But despite popular belief, remote closings were allowable even before the pandemic began although not as prevalent.

What Does A ‘Remote Closing’ Mean?

To understand why remote closings are possible, one must understand the processes behind them. Once a real estate purchase reaches the closing process, there are many standard and procedural documents that must be signed and notarized. All closings require many pages of paperwork filings and signatures from all parties in a transaction. Traditionally, parties would need to sign documents and appear at a physical location at a predetermined time to have signatures verified and notarized. Many states have now adopted laws that allow for virtual signature verifications. Remote Online Notarizations (also known as RON) are the backbone of remote closings. Without Remote Online Notarizations (RON), it would not be possible to conduct a remote closing. Florida became the twenty-first state to adopt remote online notarizations. On January of 1, 2020, Governor Ron DeSantis signed House Bill 409 into law allowing for Florida to accept closings using the remote online notarization system. This came at a convenient time for Florida’s real estate market with the looming pandemic soon to be underway. This new process streamlined the closing of transactions within the State of Florida.

Who Can Benefit From Remote Closings?

Anyone can benefit from remote closings. They are especially beneficial to parties participating in transactions that are multi-state or even international. Parties are no longer restrained by differing time zones or conflicting schedules. Traveling for document notarizations can be completely eliminated should both parties chose this option. Remote closings are truly beneficial for anyone and everyone completing a real estate transaction. It makes the closing process so convenient that purchasers and buyers can remain in the comfort of their own homes to close on a property. Documents can be signed from a personal computer or mobile device such as phone or tablet.

Alternatives to RON:. RIN vs. IPEN

Some states do not accept remote online notarizations but provide other options for online notarizations. Remote-Ink Signed Notarizations, (known as RIN), are notarizations with wet-ink signatures. Parties are able to use a video conference technology such as zoom to appear before a notary and sign documents virtually. The documents are then sent to the title company for processing. In-Person E-Notarization (also known as IPEN) are notarizations where closing documents are signed electronically but not remotely. This method merely eliminates the paper involved in signing. While this method is not technically ‘remote’ it cuts waste on paper and allows an electronic signature as an alternative to a ‘wet ink signature’.

These notarization types are not as publicly accepted as the Remote Online Notarizations because of the lack of security with the programs. The Remote Online Notarization process also has more defined guidelines and laws set in place for ease of use and security. However, the laws of some states have not yet caught up with the remote online notarizations and have instead passed emergency orders to grant flexibility.

Laws and Capabilities

Currently, only 25 states have adopted laws for RON. Other states have passed emergency orders authorizing virtual notarizations due to COVID-19. As of February 2023, Congress is seeking to pass a law titled the “Securing and Enabling Commerce Using Remote and Electronic (SECURE) Notarization Act of 2020”, or less formally known as the SECURE Notarization Act. This bill would allow notary publics to remotely notarize electronic records and perform notarizations through its entirety completely online. The bill also provides technical requirements and would ensure that all U.S. courts and states recognize and authorize remote notarizations for document processing. It has since passed the House vote and is on its way for a Senate vote. If the SECURE Notarization Act passes into law, states would have no need to extend emergency orders on online notarizations. Another advantage is that any video conferencing tools created under the emergency orders would be replaced with updated online programs offering better safeguard environments for these notarizations. This Act, however, does not supersede state laws or infringe on anyone’s choice to hold an in-person closing. Should parties choose to undergo a traditional closing in person, it is still permitted.

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05 July

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New Florida Bill Bans Storage of Health Records Outside the Continental United States, its Territories, or Canada

Posted by Jamaal R. Jones, Esq.

in Blog

By: Carolina Guio

In May 2023, Florida House Bill 264 passed, and it will go into effect on July 1, 2023. The bill has two main parts: the first prohibits offshore health record storage, and the second requires additional ownership disclosures.

Prohibition of Offshore Health Record Storage

The first part of the bill is an update of the Florida Electronic Health Records Exchange Act. This amendment prohibits healthcare providers using certified health record technologies from storing electronic health records outside the continental United States, its territories, or Canada. This prohibition extends to patient data stored through third-party cloud services and subcontracted computing facilities, which must maintain the data in the continental United States, its territories, or Canada.

Once the ban takes effect, it will no longer be possible to use vendors that do not store patient data in the continental United States, its territories, or Canada. All healthcare providers covered by the Florida Electronic Health Records Exchange Act must comply with the law by July 1, 2023. The prohibition applies to all qualified electronic health records stored using any technology that allows information to be electronically retrieved, accessed, or transmitted.

This ban on offshore storage of electronic health records has significant ramifications for healthcare providers and vendors in Florida. It applies to HIPAA-regulated entities and healthcare practitioners not covered under HIPAA. Affected entities include hospitals, ambulatory surgery centers, pharmacies, home health agencies, hospices, laboratories, mental health treatment facilities, substance abuse services, and licensed healthcare providers such as physicians, nurses, dentists, therapists, podiatrists, and massage therapists.

Vendors and subcontractors that provide support services, including managed service providers, I.T. support companies, and scheduling support providers, must also abide by this ban. They can only store or access patient information in the continental United States, its territories, or Canada. Healthcare providers must review all agreements with vendors and subcontractors to ensure compliance with updated laws. Healthcare providers should conduct an audit to confirm the locations where health records are stored to ensure compliance, including assessing storage locations, migrating data to specified regions, and establishing strict data access controls. Therefore, any contracted third parties that provide support services, and any subcontractors they use, should be prohibited from storing patient information outside the continental United States, its territories, or Canada. The healthcare provider must ensure these prohibitions are reflected in their contracts, business associate agreements, and data processing agreements. The consequences for failing to meet the Florida offshore electronic health records storage requirements will put healthcare providers at risk of legal and financial repercussions.

The purpose of the prohibition is to prioritize patient privacy by ensuring that personal health data remains within jurisdictions where privacy and security measures can be enforced. Offshore storage has raised concerns due to potential security breaches and varying data protection standards across countries. By mandating storage within the continental United States, its territories, or Canada, Florida aims to mitigate the risks associated with data breaches, unauthorized access, and potential exploitation of patient information. While these new regulations offer essential benefits such as increased privacy protection and informed decision-making for patients, there are also potential challenges to consider. These include increased costs for healthcare providers, technological limitations, implementation and compliance challenges, and the potential disruption of existing partnerships.

Ownership Disclosure Requirements

Alongside the offshore storage prohibition, Florida House Bill 264 also introduced additional ownership disclosure requirements for healthcare providers. The second part of the bill requires entities licensed by the Agency for Health Care Administration to confirm that no individual or entity with a controlling interest holds, directly or indirectly, an interest in an entity that does business with any foreign country of concern. Foreign countries of concern include the People’s Republic of China, the Russian Federation, the Islamic Republic of Iran, the Democratic People’s Republic of Korea, the Republic of Cuba, the Venezuelan regime of Nicolás Maduro, and the Syrian Arab Republic, including any agency of or any other entity of significant control of such foreign country of concern. These ownership disclosures aim to enhance transparency and provide patients with a clearer understanding of the affiliations and financial interests involved in their healthcare.

The bill aims to protect patient privacy by keeping health records within the continental United States, its territories, or Canada and promote transparency by requiring ownership disclosures. These changes aim to safeguard patient information, enhance trust between patients and healthcare providers, and improve the overall healthcare system in Florida.

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04 May

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What is a Homestead Exemption and Do I Qualify?

Posted by Jamaal R. Jones, Esq.

in Blog

The Homestead Exemption Explained

In many states, homeowners have the option of using what’s called a Homestead Exemption to reduce the amount of property tax owed on their home per year. The exemption is a property tax break that lowers the taxable value of a home. Property taxes are assessed by the local taxing authority and are calculated based on the assessed value of the property and location. The Homestead Exemption also serves as a provision to protect against bankruptcy and creditors in the event of a homeowner’s passing. The exemption provides surviving spouses with continued lower tax and asset rates. The allowable Homestead Exemption differs based on which State the primary residence is in and does not lower or affect the assessed value of a home. In some states, a homeowner needs to meet certain requirements (age requirements, be a disabled person or a veteran, etc) to qualify for a Homestead Exemption. In Florida, the exemption is available to all homeowners on their primary residence. The Homestead Exemption can reduce the taxable property value by as much as $50,000 a year.

How Do You Know How Much Will be Exempt?

In Florida, there is a tiered system to the Homestead Exemption. The tiers are determined by every $25,000 of a property’s value. The first $25,000 of a home’s assessed value is fully exempt from property taxes. The second $25,000 value is taxed in full. The third $25,000 of a home’s assessed value is exempt from all but school and district tax liability. The fourth $25,000+ is fully taxable. For instance, if a home is valued at $110,000 the first $25,000 is tax free. The second $25,000 is taxable at the full rate. The third $25,000 is exempt except for school & district taxes and the remaining $35,000 are fully taxable. That means this home has a tax liability on $60,000 of the home’s assessed value (plus the school and district taxes). Taxpayers can maximize the tax credit on their primary residence by up to $50,000 a year by applying for this exemption.

Who Qualifies for a Homestead Exemption?

There are very few limiting factors for Florida homeowners who want to apply for a Homestead Exemption. A Homestead Exemption is only allowable for a homeowners primary residence. As the name implies, a primary residence is a home that a homeowner takes occupancy for the majority of the year. The Homestead Exemption is not allowable to a second home or an investment property. To qualify for a Homestead Exemption you must (1) be the property owner, (2) have lived in the home as of January 1 of the qualifying tax year, and (3) not rent your home for more than 30 calendar days. Renting a property for more than 30 days in 2 consecutive years is considered abandonment of the Homestead Exemption.

Mobile homes can also qualify for a Homestead Exemption as long as the home itself and the land it sits on is owned by the homeowner. The mobile home must be permanently affixed to the land and the homeowner must obtain a Real Property (RP) decal for the home.

Can I Transfer My Homestead Exemption?

If a Florida homeowner moves from one Florida homestead to another Florida homestead, their exemption is not transferable. However, a Florida homeowner obtaining a new homestead in Florida can use a Portability Amendment to limit the increase of the new home’s taxable value. The homeowner can do this by applying for the Save Our Homes Assessment Limitation. The Save Our Homes (SOH) assessment allows homeowners who have previously qualified for a Homestead Exemption to limit the annual increase in the assessed value of a homestead property to 3%. To apply for this, the homeowner must submit a Form DR-501T along with the new Homestead Exemption before March 15^th.

Are There Any Other Property Tax Exemptions Available?

There are additional benefits for the elderly, veterans and disabled persons that can be used on top of the Homestead Exemption. The elderly have a Long Time Limited Income Senior Discount available to those 65 and older who have resided in Florida for over 25 years. Income conditions exist for this tax credit. Deployed service members may also qualify for a credit based on the amount of time they were deployed in a given year. Various disabilities also qualify for an additional credit if a homeowner had qualified for the Homestead Exemption.

The application for a Homestead Exemption and all other credits can be done online or by mail. The form required for the Homestead Exemption is a DR-501 and can be found on the Miami Dade Government site along with information on the other tax breaks available. See below for link to information on the allowable credits and forms:

https://www.miamidade.gov/global/service.page?Mduid_service=ser1470859973470816

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05 April

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Florida House Bill 725 Introduces New Requirements for Administering IV Hydration Therapy under the Stephanie Balais Act

Posted by Jamaal R. Jones, Esq.

in Blog

IV Hydration Vitamin treatments have taken the world by storm in recent years. This alternative medicine practice has gained popularity since the COVID-19 pandemic. It promises to boost the immune system in a post-pandemic world where everyone has developed elevated attentiveness to their bodies and wellness. Certain IV therapies are widely promoted to treat conditions such as fatigue, dehydration, fibromyalgia, asthma, migraines, and more. The ‘Myers Cocktail’ has been coined as one of the most popular mixtures claiming to “heal” patients from many ailments such as those listed above. It was named after the pioneer of IV Hydration, John Myers, who founded IV Hydration treatments in the 1960s. This cocktail is only one of countless mixes used for IV Hydration treatments.

Although popularity has spiked in IV Hydration recently, not much progress has been made to regulate procedures and care for those seeking these treatments. These IV treatments are executed in various settings (i.e. home or place of residence) by various providers (e.g. RNs, LPNs, APRNs, M.D.s, etc.). While there are definitive rules about who can administer an IV therapy treatment, there are not many protocols on emergency care. As with any wellness or medical treatment, there is always some level of risk to be considered beforehand. These risks include but are not limited to vitamin toxicity, infection, and nutritional imbalances.

After the unfortunate death of a young, aspiring nursing student in South Florida (Ms. Stephanie Balais) Florida Representatives filed House Bill 725. It is cited as the “Stephanie Balais Act”. In the products liability case of Stephanie Balais it is noted that her untimely passing was due to a Selenium treatment she received in 2018. It is unclear whether the fault lie with the manufacturer and the batch of products; the individual administering the product; or the lack of established procedures in the event of an emergency. Liability was never determined in this case, and the case was settled out of court. However, this case prompted the introduction of House Bill 725.

The Act defines Intravenous Hydration Therapy as “a procedure in which high concentrations of vitamins and minerals are administered directly into the person’s bloodstream, allowing rapid absorption of higher doses of the vitamins and minerals than if received through food or supplements”. The prospective rule seeks to require the Board of Nursing to clearly define procedures to: (1) safely administer such treatments; (2) educate those administering treatments; and (3) create protocols for emergency situations. The Act also requires the following:

Completion of a Florida Department of Health self-screening risk assessment questionnaire from a patient prior to administering IV Hydration treatments;
Notifications to the patient’s designated physicians that an IV Hydration treatment has been administered and documentation regarding the process;
Enhanced emergency care plans for the facilities offering treatments, which must be written and kept at the location offering IV Hydration treatments;
Patients are also to be provided instructions detailing when to seek medical attention and information on the risks and side effects associated with the treatment being performed; and
Patients must receive a visit summary.

The purpose of the Act is to ensure the safety of patients considering IV Hydration treatments. Due to the rise in popularity and frequency of these treatments, it has become necessary to create safety guidelines to eliminate or at the very least minimize risks for the healthcare and wellness community. This is why any written emergency plan must at a minimum include: (1) the name and address of the hospital closest to the location where the IV Hydration Treatment is being performed; (2) reasons why an emergency transfer may be obligatory; and (3) the medical services that must be utilized in the event of a medical emergency. Additionally, if a health care provider, upon review of the completed self-screening risk assessment questionnaire determines that a patient can’t safely receive an IV Hydration Treatment the provider must decline administering the treatment to that individual.

We will have to wait to see how the IV Hydration business will be impacted moving forward. Violation of this Act will result in disciplinary action for the physicians and nurses who are providing IV Hydration Treatments to their patients. The act was set to become effective on July 1, 2023 but died in Congress. This Bill is not effective and the proposed requirements do not have to enforced by healthcare practitioners.

For more information on IV Hydration, please read our previous article, Establishing A Mobile IV Therapy Clinic in Florida.

IV Hydration Masterclass: Legal Requirements of Starting an IV Hydration Business

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12 March

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What is a 1031 Exchange and How Can It Benefit You?

Posted by Jamaal R. Jones, Esq.

in Blog

Definitions and Tax Rules

To understand what a 1031 Exchange is, it is crucial to understand where the name originates from, as well as, the tax definitions and rules supporting the exchange. According to the Internal Revenue Service (“IRS”), the Internal Revenue Code (IRC) Section 1031 provides an exception for taxpayers who have sold a property at a gain. This tax rule is intended for use on investment or business properties. The 1031 tax break exchange is only allowable to personal residences after certain circumstances are met. Primary residences typically have other allowable tax breaks on capital gains taxes. After the sale of an asset (a property in this case) a taxpayer would normally be required to pay capital gains taxes on the sale. Capital Gains Taxes are the taxes owed from the profit of a sale of assets. If an asset is held for less than a year after it is purchased and is then sold at a profit, those gains are typically added to the taxpayer’s income. But if an asset is held for over a year, the ‘Long Term Capital Gains” tax rate is applicable. The percentage of capital gains owed per sale is dependent on the tax bracket of the taxpayer. The current rates range from 0% to 20% depending on income.

IRC Section 1031 allows taxpayers to postpone paying capital gains taxes on the sale of a real estate property by allowing taxpayers to roll over the taxes on the gain if the proceeds are reinvested in a similar property as part of a “Like-Kind Exchange”. A Like-Kind Exchange is an exchange of real estate property that is of similar nature that can be traded without incurring tax liabilities. The Internal Revenue’s rules around Like-Kind properties of similar nature are very liberal. The properties in the exchange do not need to be the same type of property. The only pertinent rule is that the properties be used for business or investment purposes. Personal residences are not eligible to be qualified as like-kind properties and can only benefit from Section 1031 when they meet specific requirements. Properties taking part in a 1031 exhange must also be held in the United States to qualify.

What Is A 1031 Exchange?

In layman’s terms, a 1031 exchange is a tax break. It allows for investors to swap investment properties without having to pay taxes at the time of exchange. It grants taxpayers the ability to grow their investment without having to pay capital gains taxes until an investment is liquidated or sold for cash. There is no limit to how frequently taxpayers are able to take part in 1031 exchanges. Taxpayers can defer these capital gains taxes and rollover the gains for years.

Key Timeline Regulations Of A 1031 Exchange

Most 1031 exchanges are delayed exchanges. Typically, property owners are not able to find a property to exchange at the moment of a sale. There are rules established to define delayed exchanges. Two key rules must be observed for every delayed exchange. The 45 Day Rule states that within 45 days of the sale of a property, a replacement property must be designated in writing to an intermediary. A Qualified Intermediary , sometimes referred to as an ‘exchange facilitator” or an “exchange accommodator”, must be appointed to hold the gains after the sale of a property for the sale to be recognized as a 1031 exchange. The intermediary is usually appointed by the seller and acts as a third party to hold funds and can also coordinate transfers, assist with paperwork, and support investors. There are no definitive rules on who can act as an intermediary. There are, however, rules on disqualifications for intermediaries. An intermediary must be neutral and not be directly related to any of the parties involved. Disqualified parties include family members, friends, anyone who has acted as an agent for the parties, tax preparers, etc. Investors are allowed to designate up to three properties to the intermediary as long as one of the properties is eventually closed on. The 180 Day Rule states that a property must be closed on within 180 days of the sale of the old property. Both the 45-day rule as well as the 180-day rule run simultaneously. This means that the clock begins to move for both of these rules once the sale of the property closes.

What Are The Pros And Cons of A 1031 Exchange?

Typically, if an investor is looking to purchase a new property soon after the sale of a property, a 1031 exchange is recommended. There are many reasons why an investor would be looking to carry out a 1031 exchange. The obvious pro is deferring capital gains taxes on the sale of a property. A 1031 exchange also allows for investors who are interested in moving to a new market to move seamlessly. There are no distance limitations for a 1031 exchange. There are also no limits to how often you can take part in a 1031 exchange. This means that an investor can sell a property anywhere in the United States and use the money from that sale to purchase another similar property anywhere else in the United States. It gives investors the opportunity to switch markets without having to pay major taxes.

There are, however, some cons to keep in mind. In order to move forward with a 1031 exchange, the capital gains earned on the sale of a property must be rolled over to a ‘like-kind’ investment. Should an investor want to use the gains for any other type of investment or purchase, they would lose the protection of the 1031 exchange and be required to pay the applicable taxes. Another con is that the structure can become complicated if there are multiple investors in a property and they are not all in agreement. It is possible to complete a 1031 exchange if not all of the investors of a property agree to rollover the gains. The remaining funds would be placed into a separate account and be liquidated. This circumstance is not common and is more complex.

Overall, a 1031 exchange is a great tool for investors. The Internal Revenue Service allows for investors to get a tax break and roll over their tax liabilities on the capital gains taxes potentially forever. It is a great way for investors to maximize their opportunities and build generational wealth.

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