Category Archives: Administrative Law

A Call for Rational Reform of IPN and PRN Laws and Regulations

As the COVID-19 pandemic has reminded everyone, healthcare workers perform critical jobs under significant amounts of stress every day. While everyone else was sheltering in place, healthcare workers went to the frontlines and put their lives at risk to save others.

Unfortunately, many of these healthcare workers have been taken advantage of by the very programs that were set up to protect and help them. When a healthcare worker has issues with drugs or alcohol, they can seek treatment through an impaired practitioner program. These programs serve dual, laudable goals: 1) to protect the public from impaired healthcare workers, and 2) to provide treatment to these practitioners to ensure that they can practice their craft safety.

Despite these laudable goals, and as discussed in more detail here, these programs have become a trap for health care professionals. While these programs were established by Florida law, they are administered by private corporations with little guidance or oversight. This has led to serious concerns that these programs are over-recommending courses of treatment to make more money, knowing that the professionals subject to their programs must comply or lose their professional license and their career. This ABC investigative report discusses the claims of over-recommendations here.

The time for reform is now. As discussed in detail in this article, if you are healthcare professional who is being unfairly treated by an impaired practitioner program (e.g., IPN or PRN), it is time to band to together to challenge the legality of the current impaired practitioner programs and to lobby for legislative change to address the unaccountable nature of these programs.

Overview of the Impaired Practitioner Programs

The impaired practitioner programs were created by Florida Statute § 456.076 with the stated purpose of protecting “the health, safety, and welfare of the public.” § 456.076(3), Fla. Stat. While no reasonable person would disagree with that goal, the statute itself does very little in the way of ensuring that this goal is being met.

The majority of the statute is devoted to setting forth the structure and organization of these programs. Specifically, the statute creates “consultants” which means the “individual or entity who operates an approved impaired practitioner program pursuant to a contract with the [Department of Health].” § 456.076(1), Fla. Stat.

The Department of Health has entered into two consultant contracts 1) The Impaired Practitioners Network (“IPN”), which exclusively handles issues with nursing practitioners and 2) The Professional Resources Network (“PRN”) which handles all other professionals subject to the impaired practitioner programs statute. See 64B31-10.001, F.A.C.

The statute also creates evaluators. An evaluator is a “state-licensed or nationally certified individual who has been approved by a consultant or the department, who has completed an evaluator training program established by the consultant, and who is therefore authorized to evaluate practitioners as part of an impaired practitioner program.” § 456.076(1), Fla. Stat. Importantly, the statute provides that the consultants themselves (IPN and PRN) cannot evaluate practitioners – only independent evaluators can do that.

The statute further provides for the process for how a practitioner is admitted to an impaired practitioner program. Specifically, the statute provides that PRN or IPN “shall enter into a participant contract with an impaired practitioner and shall establish the terms of monitoring and shall include the terms in a participant contract. In establishing the terms of monitoring, the consultant may consider the recommendations of one or more approved evaluators, treatment programs, or treatment providers. A consultant may modify the terms of monitoring if the consultant concludes, through the course of monitoring, that extended, additional, or amended terms of monitoring are required for the protection of the health, safety, and welfare of the public.” Fla. Stat. § 456.076(5).

There is no additional guidance, either through statute or rule, as to what can be contained in a monitoring contract, what monitoring needs to include, what standards the consultants or the evaluators need to apply when monitoring a practitioner, or any maximum length of time for the monitoring contract. IPN and PRN are left to their own discretion to set the terms of the contract. Moreover, there are no standards set for the evaluators. Evaluators are free to recommend whatever course of treatment they see fit and have no guidance as to when certain treatments should be recommended. For example, there is no statutory guidance to set forth the conditions as to when inpatient treatment is needed versus when a less invasive form of treatment could be given.

What this means from a practical perspective is that when a practitioner is referred to IPN or PRN, either by their employer or by the Department of Health, that person is stuck with whatever contract IPN or PRN sees fit based upon the recommendations of an evaluator who is free to make any recommendation he or she sees fit. There is little-to-no statutory or regulatory oversight as to how these consultants or evaluators deal with the practitioners that have been referred to them.

Once a practitioner has signed a contract with IPN or PRN, these consultants now have significant control over the practitioner and his or her license. Specifically, Florida Statutes provide that the following is grounds for discipline, including revocation or suspension of the practitioner’s license:

Being terminated from an impaired practitioner program that is overseen by a consultant as described in s. 456.076, for failure to comply, without good cause, with the terms of the monitoring or participant contract entered into by the licensee, or for not successfully completing any drug treatment or alcohol treatment program.

§ 456.072(1)(hh), Fla. Stat. (emphasis added).

It is notable that “good cause” is not defined in the statute or any applicable rule. That is discussed in more detail below.

Thus, once a practitioner is in an impaired practitioner program, he must comply with all the terms imposed by that program, otherwise, he will be terminated and subject to licensure discipline.

The Good Cause Exception

One might believe that the “good cause” exception to being terminated would provide a check on IPN and PRN – keeping them from making recommendations that are, for example, not medically necessary or that are too cost prohibitive or onerous for the practitioner to complete. In reality though, the Department of Health has limited the definition of “good cause” so narrowly that it has been rendered meaningless.

While the Department of Health has not undergone any rulemaking to officially define “good cause” when a practitioner is facing discipline for being terminated from IPN or PRN, it has stated that “good cause” is limited to “serious and unavoidable events in the life of a practitioner; such as the return to active military duty, the acute appearance of a disabling medical condition, or death of the practitioner.” DOH v. Adebiyi, DOAH Case No. 18-4813PL, DOH’s Proposed Recommended Order (DOAH 2018). The issues with this definition should be readily apparent and none of those examples would include an example that would allow the practitioner to continue practicing.

Administrative law judges (“ALJs”) have agreed with DOH’s definition. For example, DOH v. Adebiyi, DOAH Case Number 18-4813PL, Recommended Order (DOAH 2018) involved a practitioner who suffered from mental health issues but had no diagnosed issues with drugs or alcohol. As a condition of her licensure, she was required to enroll in IPN. Despite not having any issues with drugs or alcohol, she was required to refrain from mood altering substances and submit to toxicology screening. Due to the costs of the toxicology Respondent missed numerous tests. The ALJ found the following:

  • “[T]he cost of the monitoring program created a financial hardship on [respondent]”;
  • “It has never been shown that [respondent] uses drugs”; and
  • “There was no showing in the record that Ms. Adebiyi has ever caused actual damage, physical or otherwise, to a patient under her care, or that her violations of IPN procedures caused such damage.”

Even with all of this, the ALJ found that good cause did not exist for respondent to terminate her IPN contract and recommended that her license be suspended until she complied with IPN requirements.

Thus, despite no allegations of alcohol or drug use and no allegation that the practitioner was unable to practice safely, the fact that she could not afford drug testing did not constitute good cause for her to terminate her IPN contract.
This unabated definition of “good cause” creates a real issue for practitioners who are facing unnecessary, costly recommendations from IPN or PRN. They must either comply or face having their license suspended or revoked until they comply.

Potential Legal Challenges and Opportunities for Change

One option is to challenge DOH’s definition of “good cause” as an improper, unadopted rule. In fact, Smith & Associates has recently filed an unadopted rule challenge to this definition, arguing that DOH’s definition of “good cause” serves as a rule, as defined by Florida Statutes, but that has never been formally adopted as a rule. Moreover, this challenge argues that this definition constitutes an invalid exercise of delegated legal authority – essentially that DOH is exceeding the authority given to it by the Legislature by adopting this limited, unsupported definition of “good cause.” The case has been assigned case number 21-0866 and its progress can be monitored here: https://www.doah.state.fl.us/ALJ/searchDOAH/.

Additionally, there is an argument that impaired practitioner programs themselves violate the Florida Constitution. Article II, Section 3 of the Florida Constitution provides:

The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.

Interpreting this, the Court has held that, while power can be delegated to other branches, the Legislature must define clear guidelines and limitations in the statute. Specifically, the Court has held, that “statutes granting power to the executive branch must clearly announce adequate standards to guide … in the execution of the powers delegated. The statute must so clearly define the power delegated that the [executive] is precluded from acting through whim, showing favoritism, or exercising unbridled discretion.” Florida Dept. of State, Div. of Elections v. Martin, 916 So. 2d 763, 770 (Fla. 2005).

Here, the Legislature establishes the Impaired Practitioner Programs in Florida Statute § 456.076. That statute provides no limits or guidance as to what can be contained in the participant contract, the limits on the treatments these programs can require, or any way for a participant to appeal or seek a second opinion. Further, as described above, Florida Statute § 456.072(1)(hh) allows DOH to revoke a participant’s license if they are terminated from a program, but provides no direction or guidance as to what grounds constitute good cause for a program to terminate a participant. In short, the Legislature has improperly delegated its authority to a third-party.

In addition to legal action, there is also the opportunity to lobby for a change in the statute and in the rules related to these programs and their administration. While no one wants to allow impaired health care professionals to be able to practice on patients, guidance needs to be given to these programs to protect the healthcare professionals that protect us. Putting protections in place to prevent these programs from taking advantage of healthcare workers should be a bipartisan goal.

The Need to Organize and Band Together

Legal challenges, lawsuits, lobbying, etc. are all expensive propositions. If each professional stuck in the IPN/PRN trap attempts to fight this alone, they are unlikely to have the resources or the sway to mount an effective challenge against these large, government backed institutions.

However, if they were to band together to form an association to fight for their interests, the collective costs to each practitioner would be minimal, but the collective effect would be significant. These programs affect thousands of practitioners every year. If even a small percentage of them banded together to form an association, it could launch significant legal challenges to these programs as well as lobby for common-sense legislative and regulatory reform.
If you are a practitioner affected by IPN or PRN and need help determining your options or if you are interested in forming an association to challenge these programs, please contact an attorney at Smith & Associates to discuss your rights.

COVID-19 FACILITY SURVEYS

During this challenging and uncertain time in the fight against COVID-19, the Agency for Health Care Administration (“AHCA”) has been working closely with the Florida Department of Health (“DOH”) and health care providers on COVID-19 prevention and response efforts to ensure that facilities across Florida have the knowledge and training to take every precaution to ensure the health and safety of patients, residents and health care staff. AHCA shares key guidance from the Centers for Disease Control and Prevention (“CDC”) and DOH on the importance of restricting visitors, infection control protocols, and hygiene best practices. All licensees need to be vigilant in the protection against the spread of COVID-19 at their facilities. In facilities such as Assisted Living Facilities (“ALFs”) and Skilled Nursing Facilities (“SNFs”), it is extremely important to follow prevention guidelines because once COVID-19 appears in a facility it is a quick battle to isolate it and prevent others from being infected. Unfortunately, sometimes the battle is not quickly won, and the good guy suffers despite following detailed recommendations released by the CDC and the DOH.

Although AHCA and the DOH provide information on training, prevention, and response efforts, it must be noted that they are the policing agencies that are responsible for making sure that the Florida facilities protect their residents. Alerts released through AHCA require that facilities must report the positive COVID-19 cases in their facilities on a daily basis through the Emergency Status System (“ESS”). The ESS is the approved database for all licensees providing residential or inpatient services to report their emergency status. The number of COVID-19 cases in a facility is considered emergency status and must be reported daily.

AHCA and other state survey agencies are under extreme pressure to survey facilities to ensure compliance with COVID-19 directives. In fact, on January 4, 2021, the Centers for Medicare and Medicaid (“CMS”) issued a revised memorandum detailing new triggers for focused infection control surveys. The original CMS memorandum from June 1, 2020 identified two triggers for an infection control survey: nursing homes that report three or more new COVID-19 cases in the past week or one new resident case in a nursing home that was previously COVID-free as reported to National Healthcare Safety Network (“NHSN”). These surveys must be initiated by the state survey agency within three to five days of identification.

The January 4, 2021 update has outlined five more triggers for a focused infection control survey which went into effect immediately. Now nursing homes must meet one of the original case criterion plus at least one of the following new criteria: multiple weeks with new COVID-19 cases, low staffing, selection as a Special Focus Facility (a facility identified by CMS to have a documented pattern of providing poor care), concerns related to conducting outbreak testing per CMS requirements, or allegations or complaints that pose a risk of harm or immediate jeopardy to the health or safety or that are related to certain areas such as abuse or quality of care (e.g., pressure ulcers, weight loss, depression, decline in functioning). A survey may not be necessary for nursing homes meeting the above criteria if the nursing home received an onsite focused infection control survey in the three weeks prior to meeting the criteria, either as a stand-alone survey or as part of a recertification survey. However, in the event that a nursing home continues to meet the above criteria in the fourth week following the prior focused infection control survey, a new survey should be initiated. It must be noted that the original June 1, 2020 memorandum directed that state survey agencies must conduct a focused infection control survey of a minimum of 20% of the nursing homes in the state during the fiscal year 2021. Additionally, to meet this minimum of 20% of state nursing homes surveyed, only stand-alone focused infection control surveys may be counted.

In February 2021, AHCA issued its most recent emergency rules regarding mandatory entry for testing: 59AER21-3 Mandatory Entry for Testing and Infection Control for Nursing Homes and 59AER21-2 Mandatory Entry for Testing and Infection Control for Assisted Living Facilities. These rules provide updated DOH infection control directives and infection control duties concerning staff and resident testing, including making off-shift staff available at the facility for testing.

AHCA’s Field Operations Offices are responsible for conducting facility surveys. When deficiencies are found, a report called a Statement of Deficiencies (“SOD”), is generated to the facility for corrective action. The SOD issued to the facility will specify which rules or statutes the facility is deficient in following. In a situation where a facility is the subject of a focused COVID survey, the SOD may contain a deficiency for Resident Care – Rights & Facility Procedures pursuant to F.A.C. 59A-36.007(6) and F.S. 429.27 and F.S. 429.28 for failure to adhere to recognized standards from the CDC. Such failure may be in the form of failing to ensure social distancing and/or, failure to ensure residents and staff wore personal protective equipment (“PPE”) to prevent the spread of COVID-19. Additionally, it may include facility’s failure to ensure that the staff were knowledgeable about the prevention of the spread of COVID-19 and failure to screen staff and residents appropriately.

Another potential violation of the above rule and statutes that the SOD may contain is for failure to properly abide by the Division of Emergency Management (“DEM”) Order No. 20-011 (signed October 20, 2020) regarding the prohibition of entry of individuals to the facility except in certain circumstances as follows:

1. Every facility must continue to prohibit the entry of any individual to the facility, except in the following circumstances:

K. General visitors, i.e. individuals other than compassionate care visitors, under the criteria detailed below:

iii. Before allowing general visitors, the facility shall:
1. Set a policy to prohibit visitation if the resident receiving general visitors is quarantined, positive for COVID-19 and not recovered (as defined by most recent CDC guidance), or symptomatic for COVID-19;
2. Screen general visitors to prevent possible introduction of COVID-19;
3. Establish limits on the total number of visitors allowed in the facility, or with a resident at one time based on the ability of staff to safely screen and monitor visitation;
4. Establish limits on the length of visits, days, hours, and number of visits allowed per week;
5. Schedule visitors by appointment only;
6. Maintain a visitor log for signing in and out;
7. Immediately cease general visitation if a resident—other than in a dedicated wing or unit that accepts COVID-19 cases from the community—tests positive for COVID-19, or is exhibiting symptoms indicating that he or she is presumptively positive for COVID-19, or a staff person who was in the facility in the prior ten (10) days tests positive for COVID-19;
8. Monitor visitor adherence to appropriate use of masks, PPE, and social distancing;
9. Notify and inform residents and their representatives of any changes in the facility’s visitation policy;
10. Clean and disinfect visiting areas between visitors and maintain handwashing or sanitation stations; and
11. Designate staff to support infection-prevention and control education of visitors on use of PPE, use of masks, hand sanitation, and social distancing.

2. Individuals seeking entry to the facility, under the above section 1, will not be allowed to enter if they meet any of the screening criteria listed below:
A. Any person infected with COVID-19 who does not meet the most recent criteria from the CDC to end isolation.
B. Any person showing, presenting signs or symptoms of, or disclosing the presence of a respiratory infection, including cough, fever, shortness of breath, sore throat, chills, headache, muscle pain, repeated shaking with chills, new loss of taste or smell, or any other COVID-19 symptoms identified by the CDC.
C. Any person who has been in close contact with any person(s) known to be infected with COVID-19, who does not meet the most recent criteria from the CDC to end quarantine.

Clearly, this Order is very detailed on when and how a facility can admit visitors into the facility and it can easily be found that a facility failed to follow it precisely.

Another possible deficiency that a facility may be cited for is failure to follow the Comprehensive Emergency Plan that is required by F.S. 408.821. This statute requires that any licensee providing residential or inpatient services must utilize an online database approved by AHCA to report information to AHCA regarding the provider’s emergency status, planning, or operations. As stated above, all facilities are required to report their COVID-19 positive cases through the ESS on a daily basis. If a facility fails to report a positive case on any day, it can be cited for failure to follow the Comprehensive Emergency Plan violating the statute.

AHCA imposes administrative fines for violations according to a classification system in statute, based on the nature of the violation and the gravity of its probable effect on facility residents. ALFs’ (governed by Chapter 429, Part I, Florida Statutes, in addition to Chapter 408, Florida Statutes) deficiencies are classified as a Class I, Class II, Class III, or Class IV violation. The core licensing statutes for the facility type determine the Class and the fine that AHCA is authorized to charge the provider. SNFs are governed by Chapter 400, Part II, Florida Statutes, as well as Chapter 408, Part II, Florida Statutes. The “classification” system and applicable penalties for SNFs are found in section 400.23(8), Florida Statutes, and while similar to those of ALFs have striking differences. Specifically, the SNF statute provides for different levels of fines depending on whether the deficiency was isolated, patterned, or widespread. Additionally, for Class I, II, and III deficiencies, section 400.23(8), Florida Statutes, provides that “The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last licensure inspection or any inspection or complaint investigation since the last licensure inspection.” (emphasis added).

As part of a survey that results in deficiencies due to COVID-19, AHCA may request a facility to enter a Voluntary Limitation on Admissions in order to help control the spread of COVID-19 in the facility. Many facilities will agree to the voluntary limitation in the best interests of their residents. Unfortunately, the facility cannot begin readmitting former residents or admitting new residents until AHCA issues a letter lifting the voluntary limitation. When the facility finally gets the green light on admissions it is possible that they will have lost numerous readmissions and initial admissions and therefore face a steep financial challenge.

Additionally, even though a facility agrees to a voluntary limitation and then quickly contains the COVID-19 outbreak, they are still at risk for being the subject of an Administrative Complaint. The Administrative Complaint will seek administrative fines, a survey fee, and will sometimes seek to take action against the facility license (e.g., license suspension or revocation). Once served with an Administrative Complaint, the facility has the option to file a Petition for Formal Administrative Hearing to challenge the validity of AHCA’s action or proposed action on the license. Hearings on license proceedings are held before an independent administrative law judge at the Division of Administrative Hearings. Such hearings are an opportunity to prove that the true facts do not support the sought fines, and suspension or revocation of the facility license.

If your facility has received an Administrative Complaint resulting from COVID-19 issues, we can help. Contact an attorney at Smith & Associates today to discuss your rights and options. For additional information on challenging a statement of deficiency or on classification of violations, please see our article Defending Alleged Survey Deficiencies At Assisted Living Facilities (ALFs) and Skilled Nursing Facilities (SNFs).

Administrative Law Judge Rejects Claim of Sexual Misconduct by Physician

In a recent article, I discussed the ruling by an Administrative Law Judge (ALJ) in the case of Department of Health v. VanBuskirk, which rejected revocation of a physician’s license based on alleged sexual misconduct. See “Physician Discipline Rejected by Judge.” In another Recommended Order entered on March 1, 2020, an ALJ rejected the Department of Health’s claims seeking disciplinary action against a physician based upon allegations of sexual misconduct. See Department of Health v. Khan, DOAH Case No. 20-4079 PL. Unlike the prior case, this most recent decision did not involve a factual dispute over whether a sexual encounter occurred. The physician conceded that a sexual encounter did indeed occur. However, the ALJ found that there was no “physician-patient relationship” because the physician had previously severed the patient relationship months prior to the date of the encounter. The physician previously was the patients’ primary care physician for 13-14 years. However, the patient ended her patient relationship five months prior to the sexual encounter, when she became unhappy with the care and treatment she had received, and her feeling that the physician had committed a major medical error when he ordered the wrong procedure for her. The former patient retained a new primary care provider. She had contacted the physician again by Facebook and asked to see him as a friend. On the day of the encounter, she did not sign in as a patient, was not seen as a patient by staff in a patient room and met with the physician in his private office area. There was no doubt an aggressive and unwelcome sexual advance was made by the physician, but the judge ruled that because there was not an existing physician-patient relationship the actions could not be the basis for a license disciplinary proceeding.

It remains to be seen whether the Department of Health will accept the ALJ’s Recommended Order or will reject the ALJ’s reasoning as to the existence and termination of the physician-patient relationship. (The Agency could reject the conclusion of law interpreting disciplinary rules as being as reasonable or more reasonable than the ALJ conclusion. See 120.57(1(l), Fla. Stat.) Moreover, the physician could still potentially be subject to criminal prosecution, with a conviction supplying a new independent basis for license disciplinary action.

New Law Allows Pharmacists to Diagnose and Treat Certain Medical Conditions

On March 11, 2020, Governor Ron DeSantis signed HB 389 into law. This law allows qualified pharmacists the ability to treat chronic illnesses and to test, diagnose, and treat certain minor, non-chronic illnesses.

Treatment of Chronic Illnesses

This new law creates Florida Statute § 465.1865 entitled “Collaborative Pharmacy Practice for Chronic Health Conditions.” This section sets forth the requirements for a pharmacist to treat certain chronic health conditions. Importantly, these chronic health conditions are limited to:

  • Arthritis;
  • Asthma;
  • Chronic obstructive pulmonary diseases;
  • Type 2 Diabetes;
  • Human immunodeficiency virus or acquired immune deficiency syndrome;
  • Obesity; and
  • Other chronic conditions that the Board of Pharmacy may allow by future rule making.

Fla. Stat. § 465.1865(1).

To be able to treat these chronic conditions, a pharmacist must enter into a “Collaborative Pharmacy Practice Agreement” with the patient’s licensed physician. This agreement must include:

  • The name of the patient(s) for whom a pharmacist may provide services;
  • The chronic health condition(s) to be managed;
  • The specific drugs to be managed;
  • The circumstances under which the pharmacist may order and evaluate laboratory or clinical tests;
  • The conditions upon which the pharmacist must notify the physician;
  • The beginning and end dates of the treatment; and
  • A statement that the agreement can be terminated at any time by either the pharmacist or the physician.

Fla. Stat. § 465.1865(3)(a).

Additionally, before a pharmacist can treat these chronic conditions, the pharmacists must be certified by the Board of Pharmacy. To obtain this certification, the pharmacists must:

  • Have an active pharmacy license;
  • Have a Doctor of Pharmacy or have completed five years as a licensed pharmacist;
  • Complete a 20-hour course on Collaborative Treatment of Chronic Health Conditions that is approved by the Board of Pharmacy;
  • Maintain at least $250,000 of professional liability insurance; and
  • Have an established system for keeping patient records.

Fla. Stat. § 465.1865(2).

As this law was recently passed, rulemaking has not yet begun. However, as the Board of Pharmacy promulgates rules on collaborative treatment of chronic illnesses, we will provide update with any new developments.

Treatment of Non-Chronic Health Conditions

Additionally, the new law created Florida Statute § 465.1895, which allows for the testing and treatment of minor, non-chronic health conditions by a pharmacist. Minor, non-chronic health conditions include:

  • Influenza;
  • Streptococcus;
  • Lice;
  • Certain skin conditions; and
  • Minor, uncomplicated infections.

Fla. Stat. § 465.1895(1)(a).

Much like the treatment of chronic conditions, a pharmacist who wishes to treat non-chronic, minor illnesses must do so under the supervision of a physician and pursuant to written protocol between the pharmacist and the physician. This protocol must contain:

  • The categories of patients the pharmacist s authorized to treat;
  • The physician’s instruction for obtaining relevant patient medical history;
  • The physician’s instructions for the treatment of the condition based on the patients age, symptoms, and test results; and
  • A process and schedule for the physician to review the pharmacist’s actions and for the pharmacist to notify the physician of his or her actions.

Fla. Stat. § 465.1895(5).

As rule making progresses, new requirements may be added to this list.

Finally, any pharmacist who wishes to treat minor, non-chronic health conditions must be certified by the Board of Pharmacy to do so. To obtain this certification, the pharmacist must, among other things:

  • Hold an active license to practice pharmacy in Florida;
  • Take a 20-hour board approved education course on assessing and treating minor, non-chronic health conditions;
  • Maintain at least $250,000 of liability coverage;
  • Upon request, furnish patient health care records to a health care practitioner designated by the patient; and
  • Maintain patient records for five years.

Fla. Stat. § 465.1895(2).

Conclusion

This new law takes effect on July 1, 2020. Right now, the Board of Pharmacy is in the beginning stages of developing rules to implement this new law. As these rules progress, we will provide any important updates.

If you are a pharmacist who would like to take advantage of this new law and have questions about how to obtain licensing, you should contact an attorney at Smith & Associates to discuss your options.

Agencies Are No Longer Afforded Deference to the Interpretation of Rules and Statutes

On November 6, 2018, the voters of Florida approved a Constitutional Amendment (“Amendment 6”) which, among other things, eliminates the deference given to administrative agencies in interpreting statutes or rules.  Judicial officers are now required to interpret such statutes and rules de novo.

By way of background, the U.S. Supreme Court had previously ruled in Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), that courts must defer to an agency’s interpretation of a statute, if based on a permissible construction, when the statute is silent or ambiguous on the issue at bar.  Id.  As such, wide deference was given to administrative agencies in statutory and rule interpretation.  The passage of Amendment 6 to the Florida Constitution, however, requires the state court or administrative law judge to interpret the statute or rule.

Specifically, the amendment creates Section 21 of Article V, Florida Constitution, which provides:

Judicial interpretation of statutes and rules. In interpreting a state statute or rule, a state court or an officer hearing an administrative action pursuant to general law may not defer to an administrative agency’s interpretation of such statute or rule and, instead, must interpret such statute or rule de novo.

What does this mean for cases involving the interpretation of agency rules and statutes? Agencies will be subjected to the most reasonable interpretation of a rule or statute when such rule or statute is at issue in a dispute before a judicial officer or administrative law judge.  As such, parties engaged in litigation with agencies will have the benefit of an unbiased interpretation in cases where their interests are at stake.

Amendment 6 also address two other issues: 1) the retirement age for judges, and 2) victim’s rights in criminal proceedings.  The age of mandatory retirement for the state’s judges will be raised from age 70 to age 75.  However, this will not go into effect until July 1, 2019.  The second issue is the extension of a “bill of rights” for victims of crimes, modeled after a California law.

AHCA Recommends New Medicaid Payment System to Legislature

UPDATE: The Agency for Health Care Administration (AHCA) held their final public meeting on November 20, 2015, to wrap-up their discussion and submit recommendations to the Legislature for the development of an Outpatient Prospective Payment System (OPPS) to replace the current “cost-based per visit” rate methodology for Florida’s Medicaid program. AHCA’s recommendation will be to adopt a modified Enhanced Ambulatory Patient Grouping system (EAPG), which involves bundling procedures and medical visits that share similar characteristics and pays one base rate to the provider to cover all of the bundled services. The new system is expected to be implemented on July 1, 2016.

Tom Wallace, Bureau Chief of AHCA’s Medicaid Program Finance, along with members of Navigant Healthcare, the private consulting company contracted to develop the new payment system were looking at two primary model options for the OPPS: 1) the EAPG, which requires proprietary software (most likely from Navigant) that will need to be purchased by providers; and 2) the Ambulatory Payment Classification (APC) model, which is linked to Medicare’s OPPS system. By the last meeting in October, it was clear that AHCA and Navigant preferred the EAPG system to the APC model. The recommendation presented at the final meeting confirmed the agency’s preference for the EAPG model.

Significantly, the consulting company provided a simulation of how the EAPG system would pay claims to hospitals based on data collected by AHCA in accordance with the current payment system. Navigant provided charts of the top 20 hospitals and ambulatory surgical centers (ASCs) that would see the biggest payment increases and decreases. (See pages 23-26 of attached workshop presentation.) According to the simulation compiled by Navigant using previous years data, the greatest increases in payments will be seen by Ocala Regional Medical Center, Bethesda Hospital East, St. Vincent’s Medical Center and Bayfront Health – St. Petersburg. The greatest decreases will be seen by Jackson Memorial Hospital, Florida Hospital, Homestead Hospital and Sacred Heart Hospital. (Full simulation results are attached here and here as Exel spreadsheets.) Approximately 18 hospitals were excluded from the simulation (including University Behavioral Hospital, Windmoor Healthcare, Emerald Coast Behavioral, UF Health Shands, UF Health Jacksonville, and others) because approximately 33-percent or more of their prior claims data were missing procedure codes. (See page 18 of attached workshop presentation for complete list.) It was suggested at the meeting that the committee reach out to the hospitals to get their procedure codes so that they can be included in the simulation.

Additional recommendations that will be provided to the Legislature include the following:

  1. No outlier payments from Medicare OPPS (payments above or beyond scope of EAPG system);
  2. No service line adjusters and only one provider-specific adjuster for hospitals with high Medicaid outpatient utilization (Nemours Children’s Hospital, Nicklaus Children’s Hospital and All Children’s Hospital);
  3. No “charge cap” with the EAPG payment methodology to allow payment of the lessor of submitted charges or Medicaid-allowed amount;
  4. Allow a 5-percent adjustment to the EAPG base rate to account for anticipated documentation and coding improvement (consistent with the value used in the first year of APR-DRG implementation); and
  5. Applicable claims paid between July 1, 2016, and the date of implementation will be adjusted to apply EAPG pricing (retroactive to July 1, 2016).

AHCA will submit its recommendations to the Florida Legislature by November 30, 2015. Legislation regarding a new payment system is expected to be passed during the 2016 Session, with the new program to be effective on or about July 1, 2016.

For more information about AHCA’s development of the OPPS, please contact an attorney at Smith & Associates.

A Year in Review: AHCA’s Managed Medical Assistance Program

AHCA presented a Post-Award Forum for Florida’s 115 Managed Medical Assistance (MMA) Waiver during the Medical Care Advisory Committee meeting on October 13, 2015. The forum provided a platform for AHCA to showcase data of the MMA program’s success and hear comments from the public regarding specific areas where the program fell short.

Medicaid is a federal/state entitlement program which is jointly financed by state and federal funds. Federal law requires the coverage of certain eligibility groups and services (mandatory), and states have the option of covering additional eligibility groups and services (optional). Florida implemented the MMA program as a way to incentivize higher quality care without causing inflation. In February 2015, AHCA signed contracts with MMA insurance providers to deliver a system of care to residents in each of the 11 AHCA districts in Florida.

In analyzing Florida’s average annual cost for Medicaid care, AHCA representative Beth Kidder presented a graph showing that the cost per person dropped from $6,564 per person in year 2010-11 to an anticipated $5,878 in 2015-16. AHCA also showcased an increased rate of participation by physicians and dental care providers. From November 2013 to June 2015, AHCA noted an increase of 7.43-percent increase in MDs and DOs providing services to Medicaid recipients. During the same time period, AHCA stated that total participating dentists increased by 23.09-percent.

Most of the public comments regarding the MMA program focused on the failure to ensure payment by providers to Emergency Transport Services (EMS) in Florida. Several groups representing EMS providers throughout Florida complained about improperly denied reimbursement for medical transports and the categorical denial of transports of more than 30 miles. The EMS providers pointed out that Medicare reimbursed such transports, and so should the MMA program providers. One EMS provider suggested a rule or statutory revision to require hospitals and nursing homes to obtain pre-authorization for a transfer request so that EMS is ensured reimbursement.

The Agency will be releasing a series of quarterly reports on the Statewide Medicaid Managed Care program. Reports for the first two quarters are available on the Agency’s website. The Agency also began publishing a consumer-focused health plan report card which includes annual ratings on how Florida’s health plans are faring with regards to providing preventative health care services to women and children (i.e., well-child visits, prenatal care for pregnant women). Plan effectiveness is measured through the Healthcare Effectiveness Data and Information Set (HEDIS), which is a standardized set of performance measures by the National Committee for Quality Assurance and used by more than 90-percent of the health plans in the U.S.

For more information about the MMA program in Florida or any other issue, please contact an attorney at Smith & Associates.

AHCA Preliminary Decisions on Skilled Nursing Facilities

View PDF Version here.

AHCA has issued its State Agency Action Reports announcing the preliminary results on CON Applications submitted for Skilled Nursing Facilities. Below is a summary of the winners and losers listed by Sub-district. For a summary of the process for challenging AHCA’s preliminary decisions, please see our prior Newsletter Article attached.

Sub-district 1-1

Approved Application:

NF Bay, LLC/NF Bay, LLC Establish a new 90-bed community nursing home

Denied Application:

PruittHealth – Escambia County, LLC/PruittHealth – Escambia County, LLC Establish a new 90-bed community nursing home

Sub-district 3-1

Approved Application:

SF Brevard, LLC/SF Brevard, LLC Establish a new 113- bed community nursing home

Withdrawn Application:

Terrace Enterprises, LLC/Terrace Enterprises, LLC Establish a new community nursing home of up to 120 beds

Sub-district 3-2

Approved Applications:

Oak Hammock at the University of Florida, Inc./Oak Hammock at the University of Florida Add 17 community nursing home beds through the conversion of 17 sheltered nursing home beds
Palm Garden of Gainesville, LLC/Palm Garden of Gainesville, LLC Add 30 community nursing home beds

Withdrawn Application:

Innovative Medical Management Solutions, LLC/Innovative Medical Management Solutions, LLC Establish a new 47-bed community nursing home

Sub-district 3-3

Approved Application:

Crestwood Nursing Center, Inc./Crestwood Nursing Center Add 29 community nursing home beds

Sub-district 4-1

No Approved Applications

Denied Application:

Innovative Medical Management Solutions, LLC/Innovative Medical Management Solutions, LLC Establish a new 14-bed community nursing home

Sub-district 7-2

Approved Applications:

Presbyterian Retirement Communities, Inc./Westminster Towers Add 30 community nursing home beds through the conversion of 30 sheltered nursing home beds
Presbyterian Retirement Communities, Inc./Westminster Winter Park Add 17 community nursing home beds through the conversion of 17 sheltered nursing home beds

Denied Applications:

MF Orange, LLC/MF Orange, LLC Establish a new 90-bed community nursing home
Orange SNF, LLC/Orange SNF, LLC Establish a new 118-bed community nursing home

Sub-district 7-4

Approved Application:

Lifespace Communities, Inc./Village on the Green Add 30 community nursing home beds through the conversion of 30 sheltered nursing home beds

Withdrawn Application:

Innovative Medical Management Solutions, LLC/Innovative Medical Management Solutions, LLC Establish a new 33-bed community nursing home

Sub-district 8-2

Denied Application:

Pelican Bay Retirement Services/Premier Place at the Glenview Add 14 community nursing home beds through the conversion of 14 sheltered nursing home beds

Sub-district 9-1

Approved Application:

Palm Garden of Vero Beach, LLC/Palm Garden of Vero Beach, LLC Add nine community nursing home beds

Sub-district 11-1

Approved Application:

Florida Medical Systems, LLC/Florida Medical Systems, LLC Add 45 community nursing home beds

Denied Application:

Palm Garden of Aventura, LLC/Palm Garden of Aventura, LLC Add 45 community nursing home beds

Geoffrey D. Smith is a shareholder in the law firm of Smith & Associates, and has practiced in the area of health care law for over 20 years.

View PDF Version here.

New ALF Rules May Be Coming Soon

View PDF Version here.

The Department of Elder Affairs is holding a public workshop to consider new regulations that may have a significant impact on Florida assisted living facilities (“ALFs”). Significant changes being discussed at the workshop include changes to record keeping requirements, staff competency and training requirements, medication practices, and patient safety and quality of care processes. The first workshop on the proposed rules is scheduled for July 13, 2015 from 9:30 a.m. to 11:30 a.m., at the Department of Elder Affairs, 4040 Esplanade Way, Tallahassee, FL 32399. There is currently no draft proposed rule.

The Rulemaking Process

Rulemaking is required and governed by the Florida Administrative Procedure Act, which provides: “rulemaking is not a matter of agency discretion.” A grant of rulemaking authority is necessary, but not sufficient to allow an agency to adopt a rule. Rulemaking also requires a specific law to be implemented. An agency may only adopt rules that implement or interpret the specific powers and duties granted by the enabling statute. An invalid exercise of delegated legislative authority is an action that goes beyond the powers, functions, and duties delegated by the Legislature.

Agencies’ rulemaking authority is also invalid if it fails to adhere to strict procedural requirements. For example, not less than 28 days prior to the intended adoption, amendment, or repeal of any rule (other than an emergency rule) an agency must give notice of its intended action, including an explanation of the purpose and effect of the proposed action, the full text of the proposed rule or amendment, and a summary of the proposed rule or amendment. The notice must include an estimate of the regulatory cost of implementation.

Where there is a likely impact on small businesses, the agency must consider each of the following methods for reducing the impact: (1) establishing less stringent compliance or reporting requirements in the rule; (2) establishing less stringent schedules or deadlines in the rule for compliance or reporting requirements; (3) consolidating or simplifying the rule’s compliance or reporting requirements; (4) establishing performance standards or best management practices to replace design or operational standards in the rule; and (5) exempting small businesses, small counties, or small cities from any or all requirements of the rule.

Within 21 days of the publication of the notice, any affected person may request a public hearing. When an agency receives such a request it must hold at least one public hearing. In many instances the agency will hold multiple public hearings and may allow written comments to be submitted at or after the public hearing. Substantially affected persons also have the right to challenge a proposed rule under Florida Statute §120.56 as an invalid exercise of delegated legislative authority and have the right to a formal hearing before the Division of Administrative Hearings (“DOAH”). The timing of filing a challenge to a proposed rule varies based upon several criteria, the most common being dependent upon whether a hearing was requested or whether there are amendments to the proposed rule that require it to be republished. In most instances, challenges to proposed rules should either be filed within the same 21 day period or within 10 days after the public hearing is held.

To initiate a formal challenge, a substantially affected person must file a petition at DOAH. Within 10 days after receiving the petition, the matter must be assigned to an administrative law judge who shall conduct a hearing within 30 days and render a final decision within 30 days from the end of the hearing, unless these time frames are extended by agreement of the parties or for good cause, which is routine.

These hearings are de novo, meaning the agency has no presumption of correctness in its proposed rule. The standard of proof is a preponderance of the evidence. Hearings are conducted in the same manner as other 120.569 and 120.57, hearings, with one important exception, the administrative law judge’s order shall be a final agency action instead of a recommendation to be considered by the agency in a final order. The petitioner and the agency whose rule is challenged shall be adverse parties and other substantially affected persons may join the proceedings as intervenors in support of or against the proposed rule. There are opportunities to challenge a proposed rule after it becomes final, but the burden of proof becomes more difficult to challenge an existing rule than a proposed rule.

Be a Part of the Process

Rulemaking is the opportunity for facilities that will be affected by the regulatory changes to protect their interests and have input into the rules that will be implemented. Providers know better than the agencies that regulate them the true impacts of the proposed regulation. FALA and other associations are an important part of the process, but they may not know and understand the unique issues your facility faces with regard to proposed regulatory changes. The best regulations are fully vetted through multiple workshops, where stakeholders from diverse backgrounds and facility sizes participate.

Geoffrey D. Smith is a shareholder in the law firm of Smith & Associates, and has practiced in the area of health care law for over 20 years.

View PDF Version here.

Defending Alleged Survey Deficiencies at Assisted Living Facilities (ALFs) and Skilled Nursing Facilities (SNFs)

View PDF Version here.

You have probably seen the full page newspaper advertisements by certain law firms trying to solicit Plaintiffs to sue your ALF or nursing home, and placing your recent Survey Deficiencies in big bold print for all the world to see.   These tactics highlight the importance of knowing your rights as an ALF or SNF operator.  Whether to challenge a statement of deficiencies or an Administrative Complaint by the Agency for Health Care Administration is an important decision with far reaching consequences.  You should know your rights and make an informed decision.

Inspections and Survey Deficiencies: Know Your Rights

Assisted Living Facilities (“ALFs”) (governed by Chapter 429, Part I, Florida Statutes, in addition to Chapter 408, Florida Statutes) and Skilled Nursing Facilities (“SNFs”) (governed by Chapter 400, Part II, Florida Statutes, in addition to Chapter 408, Florida Statutes) need to be aware of their legal rights and responsibilities regarding Agency for Health Care Administration (AHCA or Agency) inspections, surveys, and enforcement actions.

With regard to inspections, pursuant to Florida Statutes, AHCA may conduct unannounced inspections of ALFs and SNFs1. If faced with an inspection, an ALF/SNF operator has no legal right to refuse to allow the inspectors access to the facility2.  During the inspection, AHCA is entitled to have access to copies of all provider records required during the inspection3.  An ALF/SNF operator may request that an Administrator  or  other  designated  representative  accompany  the  inspectors  while  at  the facility.  It is advisable that the ALF/SNF operator immediately consult with legal counsel if an unannounced AHCA inspection is made.  During an exit interview, the AHCA representatives should explain their findings, including any alleged deficiencies that were found.

Subsequent to an inspection, AHCA will provide the ALF/SNF Administrator with a survey report that provides a detailed written explanation of the findings made during an inspection. If a violation of a regulation is found during an inspection or investigation, it is cited as a deficiency on the Statement of Deficiencies.  Any deficiency must be corrected within 30 calendar days after the provider is notified of inspection results unless an alternative timeframe is approved by the agency4. The ALF/SNF will be given 10 calendar days in which to present a Plan of Correction5.  ALFs/SNFs must maintain for a three-year period, and make available upon request, records of all inspection reports pertaining to that provider that have been filed by the agency unless such reports are exempt from public disclosure6.

Although seldom asserted, an ALF/SNF operator may assert a legal right to challenge a survey report and petition for a formal administrative hearing pursuant to Section 120.569 and 120.57(1), Florida Statutes, if the provider believes that there were in fact no deficiencies that should result in a Plan of Correction being submitted.  However, in most instances, the results of a licensure or complaint survey can be resolved through submission and implementation of a Plan of Correction.

Statutory Framework Regarding AHCA’s Issuance of Deficiencies

Emergency License Suspension Orders

In the event of alleged severe deficiencies which AHCA claims threaten the health, safety or welfare of an ALF/SNF resident, AHCA can impose an immediate moratorium on admissions or an emergency order of license suspension7.   However, the right to take such emergency action is limited, and  such orders can be challenged legally.  AHCA is required by Section 120.60(6), Florida Statutes, to make specific findings that document the existence of the emergency situation, and may take only such action as is required to address the emergency. An improper Emergency Suspension Order or Moratorium may be immediately appealed to the District Court of Appeal, and there are numerous decisions where Agency action that is not based on a true emergency is reversed and set aside.

Further, AHCA must also provide an ALF/SNF operator faced with an emergency moratorium, or suspension order, or any other effort to suspend or revoke a license with the opportunity to file a Petition for Formal Administrative Hearings to challenge the validity of AHCA’s action or proposed action on the license8.  Hearings on license proceedings are held before an independent administrative law judge at the Division of Administrative Hearings.  Such hearings are an opportunity to prove that the true facts do not support a moratorium, suspension or revocation of the ALF/SNF license.

In addition to or in lieu of taking direct action against an ALF/SNF operator’s license, AHCA may also seek imposition of civil penalties for alleged violation of licensure rules and standards.

Administrative Fines and Classification of Deficiencies

AHCA imposes administrative fines for violations according to a classification system in statute, based on the nature of the violation and the gravity of its probable effect on facility residents.  The agency shall indicate the classification on the written notice of the violation9.   In addition, the scope of the violation may be cited as an isolated deficiency (affecting a very limited number of clients), a patterned deficiency (repeated violations affecting more than a limited number of clients), or a widespread deficiency (pervasive or systemic failures that have the potential to affect a large portion of clients)10.

Assisted Living Facilities (ALFs) and Chapter 429, Florida Statutes

Pursuant to sections 408.813 (AHCA’s “Core Licensure Act”) and 429.19, Florida Statutes (which governs the operations of an ALF), the “classifications” assigned to the alleged violation and the attendant administrative fines are as follows:

Class I violations: present an imminent danger to clients or a substantial probability that death or serious physical or emotional harm would result.  These violations must be corrected within 24 hours.  Imposition of a fine is mandatory in an amount not less than $5,000 and not exceeding $10,000 per violation, even if the violation is corrected11.

Class II violations:  directly threaten the physical or emotional health, safety or security of clients (other than Class I).  Imposition of a fine is mandatory in an amount not less than $1,000 and not exceeding $5,000 per violation, even if the violation is corrected12.

Class III violations: indirectly or potentially threaten the physical or emotional health, safety or security of clients (other than Class I or Class II).   AHCA shall impose a fine in an amount not less than $500 and not exceeding $1,000 per violation, unless the violation is corrected within the time specified for correction in the citation13. [Note: ALF statute (Ch. 429) provides that fines are mandatory for Class III and Class IV violations, but the core licensure statute (Ch.  408) says that the fine will not be imposed if corrected within a specified time, see discussion below.]

Class IV violations:  pertain to reports, forms or documents that do not have the potential of negatively affecting clients (purely paperwork type violations).  These violations are those that AHCA has determined do not threaten the health, safety, or security of clients.  AHCA shall impose a fine in the amount not less than $100 and not exceeding $200 per violation, unless the violation is corrected within the time specified for correction in the citation14.

Section 408.813, Florida Statutes, expressly provides that no fines shall be imposed for timely corrected Class III and Class IV violations.  However, AHCA has been known to take a contrary view, and the specific fine amounts for violation of ALF licensure standards are stated in mandatory language in Chapter 429, Florida Statutes.  Section 408.832, Florida Statutes, provides that when the AHCA Core Licensing Act conflicts with the specific facility governing statutes (such as the ALF statute) then the Core Licensure Act should prevail.  Applying that principle, then no fines should be imposed for minor Class III and IV violations when they are timely corrected by the ALF.  If AHCA were to impose fines for Class III and Class IV violations, the ALF would have appropriate grounds for challenging such fines.

In determining if a penalty is to be imposed and in fixing the amount of the fine, AHCA shall consider the following factors:

  • the severity of the violation and the extent to which the provision of the applicable laws were violated,
  • actions taken by the ALF administrator to correct violations,
  • previous violations,
  • the financial benefit to the facility of committing the violation, and
  • the licensed capacity of the facility15.

Additionally, each day of continuing violation after the date determined by AHCA for termination of the violation, constitutes an additional, separate, and distinct violation16.

Because AHCA considers previous violations when imposing penalties, it is important that ALF Administrators ensure that they quickly address and resolve all minor violations so that these will not later serve as a basis for imposing more severe sanctions.  Additionally, ALF administrators shall document in writing all actions to correct violations and these shall be verified through AHCA follow up visits.  AHCA may impose a fine, and in some instances, revoke or deny a facility’s license when a facility administrator fraudulently misrepresents action taken to correct a violation17.

Additionally, AHCA may impose administrative fines in an amount not to exceed $500 per violation for violations that are not designated as Class I, II, III, or IV violations. Unclassified violations include, but are not limited to: violating a condition of the license, violating statutes or rules, exceeding license capacity, and providing services beyond the scope of the license.

Skilled Nursing Facilities (SNFs) and Chapter 400, Florida Statutes

Skilled Nursing Facilities (SNFs) are governed by Chapter 400, Part II, Florida Statutes, as well as Chapter 408, Part II, Florida Statutes.  In accordance with section 400.23(7), Florida Statutes, AHCA shall, at least every 15 months, evaluate all nursing home facilities and make a determination as to the degree of compliance.  The agency’s determination shall be based on the most recent inspection report, as well as findings from other reports and investigations.  In addition to the license classification categories authorized under part II of chapter 408 (discussed above), AHCA shall assign either a “standard licensure status” or a “conditional licensure status” to each nursing home18. A “standard licensure status” means that a facility has no class I or class II deficiencies and has corrected all class III deficiencies within the time established by the agency.  A “conditional licensure status” means that a facility, due to the presence of one or more class I or class II deficiencies, or class III deficiencies not corrected within the time established by the agency, is not in substantial compliance at the time of the survey19.

The current licensure status of each facility shall be indicated in bold print on the face of the facility’s license, and a list of the deficiencies of the facility shall be posted in a prominent place that is in clear and unobstructed public view at or near the place where residents are being admitted to that facility20.

Licensees receiving a conditional licensure status for a facility shall prepare, within 10 working days after receiving notice of deficiencies, a plan for correction of all deficiencies and shall submit the plan to the agency for approval21.

An operator has the right to challenge a Conditional license rating through the filing of a Petition for Formal Administrative Hearing and a trial before an independent Administrative Law Judge.

Classification and Civil Penalties/Administrative Penalties

The “classification” system and attendant penalties for SNF deficiencies are found in section 400.23(8), Florida Statutes, and outlined below.  The classifications are similar to that of ALFs, though not identical, and the attendant penalties are quite different.  Of note, the SNF statute expressly provides for different levels of fines depending on the whether the deficiency was isolated, patterned, or widespread.  Moreover, for Class I, II, and III deficiencies, section 400.23(8), Florida Statutes, provides that “the fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last licensure inspection.”

Class I deficiency: a deficiency requiring immediate corrective action because the facility’s noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in a facility. A class I deficiency is subject to a civil penalty of $10,000 for an isolated deficiency, $12,500 for a patterned deficiency, and $15,000 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last licensure inspection or any inspection or complaint investigation since the last licensure inspection. A fine must be levied notwithstanding the correction of the deficiency22.

Class II deficiency: a deficiency that the agency determines has compromised the resident’s ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being. A class II deficiency is subject to a civil penalty of $2,500 for an isolated deficiency, $5,000 for a patterned deficiency, and $7,500 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last licensure inspection or any inspection or complaint investigation since the last licensure inspection. A fine shall be levied notwithstanding the correction of the deficiency23.

Class III deficiency: a deficiency that the agency determines will result in no more than minimal physical, mental, or psychosocial discomfort to the resident. A class III deficiency is subject to a civil penalty of $1,000 for an isolated deficiency, $2,000 for a patterned deficiency, and $3,000 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last licensure inspection or any inspection or complaint investigation since the last licensure inspection. If a class III deficiency is corrected within the time specified, a civil penalty may not be imposed24.

Class IV deficiency: a deficiency that the agency determines has the potential for causing no more than a minor negative impact on the resident. If the class IV deficiency is isolated, no plan of correction is required25.

In addition to the above, section 400.121, Florida Statutes, provides for the denial, suspension, or revocation of nursing home and related health care facility licenses, and also provides for administrative fines.  In accordance with section 400.121(1), Florida Statutes, AHCA may revoke or suspend a license, or impose administrative fines not to exceed $500 per violation per day.  Section 400.121(2), Florida Statutes, states:

“Except as provided in 400.23(8), a $500 fine shall be imposed for each violation.  Each day a violation of this part or part II of chapter 408 occurs constitutes a separate violation and is subject to a separate fine, but in no event may any fine aggregate more than $5,000.”

This section further provides:

“A fine may be levied pursuant to this section in lieu of and notwithstanding the provisions of s. 400.23.”26

Thus, the statutes governing administrative fines for skilled nursing facilities appear to be inconsistent and afford the agency significant discretion.  On the one hand, it states that “except as provided in 400.23(8), a $500 fine shall be imposed,” but, on the other hand, it also appears to state that the $500 per day fine not to exceed the $5,000 in aggregate may be imposed in lieu of the fines provided for in Section 400.23(8) above.  An experienced health care attorney can help to navigate these somewhat confusing and contradictory statutes, and seek to have them interpreted and applied in a manner most beneficial to the provider.

Revocation and Suspension:  With respect to revoking a SNF license, AHCA may revoke a license where the facility: has had two moratoria issued for substandard care within any 30-month period; is conditionally licensed for 180 continuous days; is cited for two unrelated Class I deficiencies during the same survey; or is cited for two Class I deficiencies arising from separate surveys within a 30-month period.27  If AHCA has placed a moratorium on a facility two times within a 7-year period, AHCA may suspend the nursing home license.  The licensee may present factors in mitigation of revocation, and AHCA may determine not to revoke the license based upon the facility’s mitigating factors.

Any action to suspend or revoke a facility’s license under Chapters 400 or 408 shall be heard by the Division of Administrative Hearings within 60 days after the assignment of an administrative law judge (ALJ), unless the time limitation is waived by both parties, and the ALJ shall render a decision with 30 days after receipt of the proposed recommended order.28  Agency action may be overcome by the licensee upon a showing by a preponderance of evidence to the contrary.29

Challenging a Statement of Deficiencies

Existing case law allows a provider to challenge the issuance of Statement of Deficiencies prior to AHCA filing an Administrative Complaint. See e.g., W. Frank Wells Nursing Home v. Ag. for Health Care Admin., 27 So. 3d 73, 74 (Fla. 1st DCA 2009) (holding that a statement of deficiencies constituted agency action and could be challenged in an administrative hearing).  However, the decision to file a petition to challenge a Statement of Deficiencies has significant implications on the burden of proof at hearing.  AHCA Final Orders have indicated that a party challenging a Statement of Deficiencies has the burden to show that no violations occurred by a preponderance of the evidence. See Water’s Edge Extended Care v. Ag. For Health Care Admin., DOAH 12-2188, 2013 WL 4080436, at *3 (Aug. 2, 2013) (“Here, the Agency issued a document known as a statement of deficiencies. It imposed no penalty on the Petitioner. Nor did it alter Petitioner’s licensure status in any way. Thus, it did not meet the definition of an administrative complaint found in Rule 28-106.2015(1), Florida Administrative Code. Therefore, Petitioner should have born the burden of proof by a preponderance of the evidence.”).  In contrast, if AHCA files an Administrative Complaint, then AHCA has the burden to prove the violation by clear and convincing evidence.30

Because the burden on AHCA to prove the violation is much greater when it brings an Administrative Complaint (as compared to when a facility challenges a Statement of Deficiencies), ALFs/SNFs need to seriously consider the pros and cons of challenging a Statement of Deficiencies.  In most instances, the best course of action is to challenge the Administrative Complaint, rather than challenging the Statement of Deficiencies.  However, the following are circumstances where it may be prudent for a facility to challenge the Statement of Deficiencies:

  • When AHCA is requiring some immediate corrective action that the provider believes is unwarranted under the circumstances and that would be unduly burdensome on the provider;
  • When the facility reasonably believes that the Statement of Deficiencies will result in a negative stigma affecting its business operations if it fails to challenge the alleged deficiency;
  • When the facility reasonably believes that certain payors may take adverse action based on the Statement of Deficiencies being filed and unchallenged.

It should be noted that although administrative case law in certain Final Orders has indicated that the burden on the provider is much greater when it challenges a Statement of Deficiencies, there have been no appellate decisions on this issue to date.

Case Law Examples: Recent Reported Final Orders

ALF Final Order Examples

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION v. ANGEL AIDES CENTER, INC. d/b/a BOYNTON BEACH ASSISTED LIVING FACILITY, 2014 WL 7385342 (December 17, 2014), DOAH NO. 13-1258

Action to revoke the ALF’s license and impose $5,000 fine and $500 survey fee.  Agency cited the facility for two Class II deficiencies as a result of complaint investigation surveys.  Based on the surveys it was determined that the facility failed to ensure that residents met the residency requirements (several residents required medical and psychological supervision exceeding the residency criteria) and failed to provide supervision to the residents.  Specifically, during the investigation it was revealed that one of the residents who did not meet the residency requirement (as he required medical supervision due to antisocial behavior) had sexually assaulted another resident several months prior. Pursuant to section 429.14 (1) (e), Florida Statutes, the Agency sought to revoke the license since it had previously cited the facility for four Class II deficiencies.

Holding/Fine: ALF license was revoked, and respondent was required to pay the Agency $5,500.

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner v. DAYSPRING VILLAGE, INC., 2014 WL 2624256 (June 3, 2014); DOAH CASE NO. 13-1451

Administrative Complaint sought to impose an administrative fine of $2,000 based on two Class II deficiencies discovered during a complaint inspection of Dayspring Village’s assisted living facility (“ALF”), as well as a $185.00 survey fee. Specifically, the complaint alleged that the facility failed to provide adequate and appropriate health care consistent with established and recognized standards within the community by allowing diabetic residents to use the same glucometer without disinfecting or cleaning the glucometer device in between resident usage, and failed to properly supervise residents taking their medication.

Holding: The Final Order concluded that AHCA proved its violations by clear and convincing evidence and imposed an administrative fine of $2,000 and a survey fee of $185.50 on Dayspring Village, Inc.

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner v. PINE TREE MANOR, INC. d/b/a PINE TREE MANOR, Respondent, 2014 WL 554674 (February 5, 2014) DOAH CASE NOS. 13-2011, 13-2397

AHCA charged Pine Tree Manor with two Class I violations and sought to revoke its license for two separate deficiencies.  The first alleged Class I violation concerned the facility’s failure to remain generally aware of one of its residents whereabouts.  Specifically, a resident wandered off from the facility and the facility did not seek to locate him until the next morning.  They were unable to locate him, and he was found, deceased, several days later.  The Final Order held that AHCA had not proved by clear and convincing evidence that the facility was on notice the resident was in “imminent danger of death or serious physical harm” to substantiate a Class I, and held that it was a Class II violation, and imposed a $5,500 fine.  The second alleged violation concerned the facility’s failure to properly respond to an emergency situation where a resident stopped breathing and ultimately died.  The employee failed to immediately call 911 and provide CPR.  The Final Order held this was a Class I violation, revoked respondent’s license, and imposed an $8,000 fine.

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner v. STEPHENS MEMORIAL HOME, INC. d/b/a STEPHENS MEMORIAL HOME, 2013 WL 3490616 (July 8, 2013), DOAH CASE NO. 13-0368

AHCA conducted an unannounced biennial licensure and complaint survey that gave rise to the Administrative Complaint.  The Administrative Complaint alleged a widespread class II deficiency and sought the imposition of an administrative fine of $1,000 against Respondent. Specifically, the Administrative Complaint alleged that Stephens Memorial failed to insure that one of four sampled residents was free of physical restraints in violation of Florida Statutes because that resident had an activity board attached to his wheelchair that appeared to prevent the resident from getting up from his wheelchair.

Holding: The Final Order held that the resident was able to remove the activity board and that it was prescribed for therapeutic purposes and thus did not meet the definition of a “restraint” and the Administrative Complaint was dismissed.

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner v. DOS OF CRYSTAL RIVER ALF, LLC d/b/a CRYSTAL GEM ALF, 2013 WL 595490 (February 7, 2013);  DOAH CASE No. 12-2306

Administrative Complaint alleged a Class III violation for facility’s failure to have a properly completed Residential Health Assessment form for each resident, and Class I violation for failure to provide appropriate supervision to prevent elopement.

Holding: Held that while violations did occur in that the forms were not properly completed, they did not constitute Class III violations because there was no threat to the physical or emotional health of the residents, and thus it was reduced to a Class IV violation with a fine of $100.  With regard to the alleged Class I violation regarding elopement, the Final Order held that the Agency did not prove, by clear and convincing evidence, that the facility violated Florida Statutes with respect to the provision of care and supervision of its residents.

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner v. ALLAN V. COMRIE d/b/a PREMIER ADULT CARE; ALLAN V. COMRIE d/b/a FIRST CLASS PHASE II; and ALLAN V. COMRIE d/b/a FIRST CLASS ADULT FAMILY CARE and JAM, 2012 WL 5705633 (November 8, 2012);  DOAH CASE NO. 12-0102

AHCA alleged that Respondent had advertised and operated a facility without first obtaining licensure for that program, had misrepresented the licensure status of the home, had failed to comply with rules governing facilities, and had failed to cooperate with authorities with regard to the facility. As to all alleged violations, Respondent maintained it was not required to hold a license for the subject property as its operation was exempt as a matter of law. Additionally, Respondent averred that any incorrect advertising was merely a clerical error and not an intentional misrepresentation of the licensure status of the facility.

Holding: Although the Administrative Law Judge did not recommend revocation, AHCA entered a Final Order and imposed a $7,000 fine and revoked Respondent’s license.   The operator elected not to appeal to the District Court of Appeal.

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION v. AVALON’S ASSISTED LIVING, LLC d/b/a AVALON’S ASSISTED LIVING and d/b/a AVALON’S ASSISTED LIVING AT AVALON PARK; and AVALON’S ASSISTED LIVING II, LLC, 2011 WL 860551 (March 9, 2011)

Action to revoke the facilities’ licenses due to Class II deficiencies regarding: 1) failure to provide required employee training and falsified training certifications, and 2) the failure to provide residents with appropriate pain medication and required care. The evidence established that the violations posed a direct threat to the physical and emotional health of the residents.  License revocation was an appropriate penalty pursuant to section 429.14(1)(e)(2), Florida Statutes, regarding revocation where there are three or more cited class II deficiencies.

Holding/Fine: The licenses of the facilities were revoked and an administrative fine of $3,000 was imposed.

SNF Final Order Examples

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner v. TALLAHASSEE FACILITY OPERATIONS. LLC d/b/a CONSULATE HEALTHCARE OF TALLAHASSEE, Respondent, 2015 WL 510385 (February 2, 2015), DOAH CASE NO. 14-0436

Administrative Complaint sought to impose an administrative fine in the amount of $1,000 and conditional licensure status based on one uncorrected Class III deficiency discovered during a revisit survey inspection conducted on August 12, 2013. AHCA conducted a survey of the facility in July 2013 and found a Class III deficiency for failure to follow physician orders that patient be bathed daily.  Respondent submitted a corrective action plan which was approved by AHCA.  AHCA re-surveyed respondent in August 2013, and found additional Class III violations regarding failure to follow physician orders concerning PICC-dressing changes in violation of rule 59A-4.107(5).  AHCA alleged the August violation constituted an uncorrected violation of the earlier failure to follow physician orders.

Respondent argued that the August violation was different than the July violation, and thus the August violation should not be construed as an “uncorrected violation.” AHCA argued that both violations concerned the failure to follow physician orders and thus the second violation was an “uncorrected violation.” AHCA further argued that its acceptance of the corrective action plan did not  absolve Respondent from its responsibility to correct every area in which it was found out of compliance.

Holding: AHCA demonstrated by clear and convincing evidence that Respondent committed an uncorrected Class III deficiency. Final Order imposed a fine of $1,000 and further imposed conditional licensure on Respondent for the period from August 13, 2013 through September 30, 2014.

WATER’S EDGE EXTENDED CARE, Petitioner v. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent, 2013 WL 4080436 (August 02, 2013), DOAH 12-2188

AHCA conducted a complaint survey and issued a statement of deficiencies for alleged violation of section 400.0255, Florida Statutes, regarding transfers or discharges initiated by nursing homes.  The statement of deficiencies was challenged by petitioner and the matter was referred to DOAH.  The ALJ found that section 400.0255, Florida Statutes, was inapplicable to the circumstances, as the physician initiated the Baker Act transfer, not the nursing home.

Holding: The Final Order found that the Agency failed to establish that respondent violated section 400.0255, Florida Statutes, by improperly discharging or transferring the resident, and they Agency withdrew its Statement of Deficiencies.

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner v. GREENBRIAR NH, LLC d/b/a GREENBRIAR REHABILITATION AND NURSING CENTER, Respondent, 2012 WL 2191285 (June 7, 2012) DOAH CASE NO. 11-4379

Administrative Complaint alleged that Respondent failed to comply with background screenings and alleged a Class II deficiency.

Holding: the Respondent failed to comply with the relevant law regarding background screenings as well as its own policies and procedures when it hired new employee. However, the Petitioner failed to prove that these failures constituted a Class II deficiency.  The Final Order dismissed the Administrative Complaint and replaced the Conditional License with a Standard License for the time period in question.

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner v. SA-PG SUN CITY CENTER, LLC d/b/a PALM GARDEN OF SUN CITY, Respondent, 2011 WL 379931 (January 1, 2011), DOAH CASE NO. 10-4740

Administrative Complaint alleged that Respondent failed to follow established and recognized practice standards regarding care to its residents; and failed to comply with the rules governing skilled nursing facilities adopted by AHCA.

Holding: There is no competent and substantial evidence that Respondent failed to follow established practice standards that resulted in harm to its residents and failed to comply with rules governing skilled nursing facilities, or that otherwise warrants a fine or Conditional rating. Respondent was marginally deficient in two minor areas concerning their own policies, but neither violation is a Class II deficiency, nor warrants imposition of a sanction.

Conclusion

Preventative measures are the best way to protect against survey deficiencies.  ALF/SNF administrators should develop and implement trainings and staff education to ensure compliance with Florida Statutes and rules.  Qualified health care consulting firms and health care attorneys can assist with developing compliant materials and compliance programs.  An ounce of prevention in this respect will be well worth avoiding the costs of a bad survey or inspection by AHCA.

However, even with a good education and compliance program in place, AHCA may still seek to suspend or revoke a license, or impose a moratorium on admissions or levy substantial fines.  In order to assess penalties, AHCA is required to file an Administrative Complaint.  ALFs/SNFs have the right to demand a formal hearing to challenge the facts, and to challenge the amount or appropriateness of the fines being imposed.

ALF/SNF administrators in such situations should consult and retain experienced legal counsel to contest and defend against such actions by filing a Petition for Formal Administrative Hearing pursuant to Chapter 120.  The timeframe for responding to an Administrative Complaint is 21 days from receipt of the Complaint, and failure to timely file a petition may result in an admission of the facts alleged in the Complaint and entry of a Final Order by the agency.  ALF/SNF administrators need to be aware of their legal rights prior to receiving an Administrative Complaint and need to be sure to consult with counsel prior to inadvertently waiving any rights.  Hiring experienced legal counsel is crucial in any challenge to an Administrative Complaint.  Experienced counsel can not only help to protect your due process rights, but can also ensure that the State is required to prove its case by clear and convincing evidence.

Geoffrey D. Smith is a shareholder in the law firm of Smith & Associates, and has practiced in the area of health care law for over 20 years.

View PDF Version here.

1 §408.811 (1), Fla.  Stat., §429.34 (1), Fla.  Stat., §400.19, Fla.  Stat.

2 §408.811 (1), Fla.  Stat.

3 §408.811 (3), Fla.  Stat.

4 §408.811 (4), Fla.  Stat.

5 §408.811 (5), Fla.  Stat.

6 §408.811 (6), Fla.  Stat.

7 §408.814 (1), Fla.  Stat.

8 §120.60 (7), Fla.  Stat.

9 §429.19 (2), Fla.  Stat.

10 §408.813(2), Fla.  Stat.

11 §408.813(2)(a), Fla.  Stat.; §429.19(2)(a), Fla.  Stat.

12 §408.813(2)(b), Fla.  Stat.; §429.19(2)(b), Fla.  Stat.

13 §408.813(2)(c), Fla.  Stat.; §429.19(2)(c), Fla.  Stat.

14 §408.813(2)(d), Fla.  Stat.; §429.19(2)(d), Fla.  Stat.

15 §429.19(3), Fla.  Stat.

16 §429.19(4), Fla.  Stat.

17 §429.19(5), Fla.  Stat.

18 §400.23(7), Fla.  Stat.

19 §400.23(7)(a) and (b), Fla.  Stat.

20 §400.23(7)(d), Fla.  Stat.

21 §400.23(7)(d), Fla.  Stat.

22 §400.23(8), Fla.  Stat.

23 §400.23(8), Fla.  Stat.

24 §400.23(8), Fla.  Stat.

25 §400.23(8), Fla.  Stat.

26 §400.121(2), Fla.  Stat. (emphasis added).

27 §400.121(3), Fla.  Stat.

28 §400.121(5), Fla.  Stat.

29 §400.121(7), Fla.  Stat.

30 The burden of proof on AHCA to impose an administrative fine is by clear and convincing evidence. Dep’t of Banking & Fin, v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996). The burden of proof for the assignment of licensure status is by a preponderance of the evidence. See Florida Dep’t of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Dep’t of HRS, 348 So. 2d 349 (Fla. 1st DCA 1977).  See also AGENCY FOR HEALTH CARE ADMINISTRATION v. TALLAHASSEE FACILITY OPERATIONS. LLC d/b/a CONSULATE HEALTHCARE OF TALLAHASSEE, 2015 WL 510385, at *12 (February 2, 2015), DOAH CASE NO. 14-0436.