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:
- Director of Nursing (“DON”) – AHCA requires that a home health agency that provides skilled nursing case must have a director of nursing at all times. If a DON ceases working at that facility the HHA must inform AHCA within 10 days or risk a Class II deficiency.
- Advertisements – A person that offers or advertises to the public a service for which registration is required (i.e. nursing home or home health services) must include in its advertisement the registration number issued by AHCA.
- Office Hours – Home Health Agency administrator or DON, or their alternates, must be available to the public for any eight consecutive hours between 7:00 a.m. and 6:00 p.m., Monday through Friday of each week. Available to the public means being readily available on the premises or by telecommunications. If an AHCA surveyor arrives on the premises to conduct an unannounced survey and no authorized person is there to provide access to patient records within one hour of the arrival of the surveyor then they have violated licensure requirements. Further, that list of current patients must be provided to the surveyor within two hours of arrival if requested. Failure to do either may be grounds for denial or revocation of the agency license.
Nursing Homes and related Health Care Facilities, such as Home Health Agencies have many statutory requirements and AHCA doesn’t care whether your intended to violate the requirements or not. They will pursue action against you. For example, there are certain Director of Nursing and Administrator requirements (i.e. staffing requirements, notifications to AHCA, limitations on staffing services, etc.) that Nursing Homes and Home Health Agencies must adhere to or risk fines and suspension of their license.
What are the Penalties?
Four different class violations exist, and the fines vary depending on the seriousness of the violation. For example, a Class II violation permits AHCA to impose an administrative fine in the amount of $5,000 for each occurrence and each day that the violation exists, while Class III only imposes a fine not to exceed $1,000. Additionally, AHCA may impose costs related to an investigation that results in successful prosecution, excluding costs associated with an attorney’s time. In other words, if you decide to fight the allegations and you are unsuccessful you may have to pay thousands of dollars in fines and fees related to your investigation. In addition to a fine for a certain class violations AHCA may request revocation of your license.
Florida Statute §400.474 lists various actions taken by a home health agency that are grounds for disciplinary action and the administrative penalties that may be imposed by AHCA. AHCA considers the (1)nature/severity of the violation; (2) actions taken by the administrator to correct violations; (3) prior violations; (4) the effect your violations had on facility residents; (5) financial benefits to the violating facility; and (6) whether this was an isolated, patterned, or widespread deficiency.
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.
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.