Tag Archives: Licensing

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.

The IPN/PRN Trap

The stresses put on medical professionals, especially licensed physicians and nurses, can be extreme. Long hours, emergency responses, and dealing with patients’ severe medical issues – some who will not survive – can take an emotional toll on even the strongest doctor or nurse. However, when a medical professional turns to alcohol or drugs to help cope with these issues, the outcomes can be disastrous for both the patients and the professional.

Acknowledging the stresses that medical professionals face, the Florida Legislature authorized the creation of the Professional Resource Network and the Intervention Project for Nurses to help medical professionals (and other licensed professionals) with alcohol and drug abuse problems.

While the programs have lofty and laudable goals, the reality is that, for many professionals who enter these programs, PRN and IPN can become an inescapable nightmare.

How the Trap is Set

The problem starts when a doctor or nurse does something wrong. It can be directly related to patient care, such as showing up to work hungover or impaired, or it can be unconnected to work, such as being charged with Driving Under the Influence (“DUI”). In any case, the Department of Health (“DOH”), which oversees both the Board of Medicine and the Board of Nursing, is notified.

Once DOH is notified, they will evaluate the claim. If DOH believes that the infraction impacts patient care (and DOH almost always believes that the infraction will affect patient care), they will issue an administrative complaint against the doctor or nurse seeking any number of potential remedies, including the imposing of fines and the revocation of the medical or nursing license.

However, once the administrative complaint is served, DOH will typically offer what seems like a very reasonable resolution, especially when the potential alternative is having the license revoked. That resolution involves the doctor or nurse agreeing to sign up for PRN or IPN and have their license suspended until they complete the program. DOH will also usually require that the investigative costs be paid as well.

The doctor or nurse, faced with the choice of either accepting this settlement or being forced to hire an attorney to fight these claims and potentially lose their license, believes that this is a reasonable solution and agrees to the settlement.

Once the agreement is signed and incorporated into a Final Order, the doctor or nurse must sign an agreement with PRN or IPN, agreeing to follow all its terms and agreeing to follow whatever medical treatment the program believes is appropriate, otherwise the doctor or nurse will be terminated from the program. Now the trap is set.

The Trap Gets Sprung

What many doctors and nurses who enter PRN or IPN do not realize is that, while it is an independent, non-governmental entity, if it cancels the contract with the doctor or nurse, that is an independent reason for DOH to revoke the doctor or nurse’s license. Fla. Stat. § 456.072(1)(hh). Thus, when PRN or IPN “recommend” a course of treatment – no matter how extreme or expensive – it must be followed, or the contract will be terminated. If the contract is terminated – DOH will almost certainly seek to revoke the license.

What happens to many people involved in these programs is that, regardless of what brought them there, they are “prescribed” an intensive program that involves no alcohol and bears significant costs, such as Intensive Outpatient Program Treatment. There is no opportunity for the doctor or nurse to appeal this decision – they must comply.

This is where the trap gets sprung. The doctor or nurse is already out of work due to the license suspension and now they are spending any accumulated savings on the initial program. Further, despite whether the person believes they have an alcohol problem or not, they are forbidden from having any alcohol. If that doctor or nurse has a urine test positive for alcohol (or voluntarily admits to using alcohol), even if it was a single, social drink – the trap is sprung.

Once there is any non-compliance, no matter how small, the provider will then “prescribe” an even more extreme program such as inpatient treatment. These programs can cost over $40,000 and must be attended or the contract will be cancelled. People who have already had their license suspended, who are out of work, and who have already spent any savings they had on the prior treatment, cannot afford this treatment. Regardless, if they do not attend, the contract will be cancelled and DOH will then seek to revoke the license. The practitioner is now trapped – pay money they don’t have for treatment they don’t need or lose their license.

“Good Cause” Defenses

The statute at issue allows DOH to revoke the license for:

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.

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

A reasonable person may think that not having the money to comply with the treatment plan would constitute “good cause” or that being prescribed a treatment plan that doesn’t align with the problems the person is facing would constitute “good cause,” but the administrative law judges (“ALJ”) and the Department of Health would disagree.

While “good cause” is not defined in the statute, ALJs have limited its application to situations that make it almost superfluous for the Legislature to have included. As one ALJ wrote, “[s]ome examples of good cause for failing to comply with the terms of an impaired practitioner monitoring contract, as found in one DOAH case, include 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.” Department of Health v. Grace Mary Guastella, M.D., DOAH Case Number 2013-12197 (DOAH 2017). Thus, according to these ALJs, unless you are active duty military, so disabled as to not be able to practice, or dead, you don’t have good cause to violate the treatment plan.

Once a practitioner is trapped in PRN or IPN, even if it only started out as “drinking alcoholic beverages, if only socially on rare occasion,” whatever the recommended course of treatment is, no matter how intense or expensive, it must be followed or the contract will be terminated and DOH will seek to revoke the license. Department of Health v. Grace Mary Guastella, M.D., DOAH Case Number 17-2923PL (DOAH 2018).

At least as the law stands, as interpreted by DOH and ALJs, good cause is rare and doesn’t provide the protection that a reasonable person reading the statute would believe it would provide.

Potential Challenges

One potential challenge that a practitioner caught in this trap could make is that the “good cause” exception has been read too narrowly and should encompass the ability to pay for the treatment and the medical necessity of the treatment. To date, no successful challenges to the existing “good cause” factors has been made. However, with passage of Amendment 6 to Florida’s Constitution in 2018, judges no longer need to defer to an administrative agency’s (like DOH) interpretation of a statute. See http://smithlawtlh.com/agencies-longer-afforded-deference-interpretation-rules-statutes/

In almost any other context, before a court can impose a penalty due to a person’s failure to pay some fine or court ordered payment (e.g., restitution, court fines, and child support), the Court must first determine if the person has the ability to pay. If the person does not have the ability to pay, then the Court cannot punish the person for not paying. See Del Valle v. State, 80 So. 3d 999, 1002 (Fla. 2011) (“an automatic revocation of probation without evidence presented as to ability to pay to support the trial court’s finding of willfulness violates due process.”); Vincent v. State, 699 So. 2d 806, 807 (Fla. 1st DCA 1997) (“In order to revoke a defendant’s probation based on a failure to pay restitution, a trial court must find that the defendant had the ability to pay the restitution not only before ordering restitution [but also] before revoking probation for failure to pay restitution imposed as a condition thereof.”); and Pompey v. Cochran, 685 So. 2d 1007, 1009 (Fla. 4th DCA 1997) (“finding that Pompey’s incarceration was unlawful because there was no evidence at all to support the trial court’s affirmative finding that the petitioner had the ability to pay a [back child support].”).

A strong argument could be made that the ALJ’s limited interpretation of the “good cause” exception and the imposition of sanctions without determining the practitioner’s ability to pay violates the statute and the practitioner’s due process rights.

There is also a potential challenge to the entire PRN/IPN setup as a violation of 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.

Based on the foregoing, there is a strong argument to be made that both PRN and IPN are unconstitutional and, without additional guidance from the Legislature, they should not be permitted at all or, at the very least, DOH cannot take action against a practitioner for not complying with the terms of a PRN or IPN contract or course of treatment.

Conclusion

If you are being offered IPN or PRN as a term of settlement or if you have already agreed to PRN or IPN and are having trouble meeting their requirements, you should contact an experienced health care attorney to discuss your rights.

Autonomous Practice and Nurse Practitioners: What the New Florida Law Holds in Store

On March 11, 2020, only hours after it was passed by the Florida Legislature, Governor Ron DeSantis signed HB 607 into law. Importantly, this new law allows “advanced practice registered nurses” to be licensed for autonomous practice. Once this law takes effect on July 1, 2020, qualified nurse practitioners will be able to get licensed for autonomous practice and be able to set up their own practices without the need for physician supervision. However, with this new opportunity, new issues arise for nurse practitioners who want to set up their own shop. This article discusses the requirements to be licensed for autonomous practice and some issues that nurse practitioners may face if they want to set out on their own.

Requirements to Be Licensed for Autonomous Practice

HB 607 creates Section 464.0123, Florida Statutes, entitled “Autonomous Practice by an Advanced Practice Registered Nurse.” This new law sets forth the requirements for an advanced practice registered nurse to be licensed to practice autonomously. Specifically, this new law requires that an applicant for autonomous practice:

  • Hold an active, unencumbered license to practice advanced nursing;
  • Not have any disciplinary action within the past five years;
  • Completed 3,000 hours of clinical practice (including clinical instruction hours) within the past five years; and
  • Completed three graduate level semester hours in differential diagnosis and three graduate level semester hours in pharmacology within the past five years.

Fla. Stat. § 464.0123 (1).

The statute also provides that the Board of Nursing may add additional requirements through the rulemaking process. While the rulemaking process has not yet begun, any nurse practitioner looking to start an autonomous practice should keep abreast of this process.
Additionally, the new law requires that autonomous nurse practitioners must demonstrate the financial responsibility to pay any malpractice claims that may arise. This can be accomplished by either of the following methods:

  • Maintaining professional liability coverage in an amount not less than $100,000 per claim, with a minimum annual aggregate of not less than $300,000; or
  • Maintaining an unexpired, irrevocable letter of credit in an amount of not less than $100,000 per claim, with a minimum annual aggregate availability of credit of not less than $300,000.

Fla. Stat. § 464.0123(2)(a).
 
Practice Requirements

The new law also sets forth the practice requirements for autonomous nurse practitioners. Specifically, the new law allows for autonomous practice nurse practitioners to:

  • Engage in autonomous primary care practice, including family medicine, general pediatrics, and general internal medicine;
  • For certified nurse midwives, engage in autonomous practice for the following:
    • Perform superficial minor surgical procedures;
    • Manage the patient during labor and delivery to include amniotomy, episiotomy, and repair;
    • Order, initiate, and perform appropriate anesthetic procedures.
    • Perform postpartum examinations;
    • Order appropriate medications;
    • Provide family-planning services and well-woman care; and
    • Manage the medical care of the normal obstetrical patient and the initial care of a newborn patient.
  • Perform general functions of an advanced practice registered nurse;
  • For patients that require the services of a health care facility, they can:
    • Admit and discharge patients; and
    • Manage the care of the patient in the facility.
  • Provide a signature, certification, stamp, verification, affidavit, or endorsement that is otherwise required to be provided by a physician, with the notable exception that they cannot provide medical marijuana certifications.

Fla. Stat. § 464.0123(3)(a).

Additionally, the new law requires that certified nurse midwifes must have a written transfer agreement with a hospital and a written referral agreement with a licensed physician. Fla. Stat. § 464.0123(3)(b). Finally, the law prohibits autonomous nurse practitioners from performing any surgical procedure other than a subcutaneous procedure. Fla. Stat. § 464.0123(3)(c).

Issues with Autonomous Practice

Nurse practitioners looking to establish their own practice will now face many of the same issues that physicians face. The first issue is existing employment agreements. Many nurse practitioners were forced to sign employment agreements either with their physician practice group or hospital when they began their employment. Many of these employment agreements contain restrictive covenants, governing when and where employees can work after terminating their current job (e.g., they may prevent the nurse practitioner from working at any competitive practice within 20 miles of the current practice for three years). Additionally, these employee agreements may also contain prohibitions on soliciting patients or employees. Any nurse practitioner seeking to establish an autonomous practice needs to first understand what restrictions are contained in any current employment agreement and the validity of those restrictions.

Next, nurse practitioners should decide the type of business entity that should be formed. As licensed professionals, nurse practitioners, in addition to the normal business entity options, will have the ability to form Professional Associations or Professional Limited Liability Corporations in Florida. What business entity a nurse practitioner should choose is very fact intensive and depends on an individual’s circumstances. However, in any event, it is strongly recommended that any nurse practitioner seeking to start their own practice consult with competent legal and tax professionals to establish the business entity.

In conjunction with the above, nurse practitioners may want to form their own practice groups with multiple nurse practitioners. If this is the case, in addition to the business entity formation documents, agreements between the owners of the practice group need to be created. These agreements can be complex but are very necessary. Owners of these practice groups, much like owners of physician practice groups, need to consider numerous issues to ensure that the practice group can continue to function through changes that naturally occur over time. For example, what if an owner wants to retire? What if one wants to quit and set up a new practice group across the street? What if an owner passes away? Further, when practice groups are formed, additional licensure in the form of a health care clinic license from the Agency for Health Care Administration may be required. These and many more questions need to be addressed at the outset to minimize future uncertainty.

In addition, much like physician practice groups, nurse practitioners will need to adopt their own employee agreements, employment handbooks, and employee policies and procedures.

Finally, and probably most importantly, autonomous nurse practitioners need to be able to bill private and government insurance. This includes getting a Medicare/Medicaid provider number and reviewing insurance contracts and Medicare/Medicaid provider agreements.
Nurse practitioners seeking to start their own autonomous practice should seek out legal counsel to assist at each of these steps.

Conclusion

Courthouses are filled with lawsuits from physicians who wanted to start their own practice but failed to properly plan for issues that a competent attorney could have warned them would arise. As nurse practitioners begin to start their own practices, they will face the same issues and should take the same precautions that physician practices do to protect themselves and the future of their practice.
Smith & Associates has extensive experience representing physicians and physician practice groups. If you are a nurse practitioner seeking to take advantage of this new law and start your own autonomous practice, you should contact an attorney at Smith & Associates to discuss your rights and options.

Assisted Living in Florida, How is it Changing?

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An Assisted Living Facility (ALF) is a residential establishment that is designed to provide personal care services to one or more persons in the least restrictive and most home-like environment. Personal services that are provided to residents of an ALF are services such as physical assistance with, or supervision of, the activities of daily living and the self-administration of medication. ALFs can range in size from one resident to several hundred and may offer a wide variety of personal and nursing services designed specifically to meet an individual’s personal needs. The services available in these facilities are intended to help residents remain as independent as possible and for some to “age in place” when their health care needs increase.

Standard Licensed ALFs

A standard ALF must be licensed by the Agency for Health Care Administration (AHCA). The official definition of an assisted living facility is any building or buildings, section or distinct part of a building, private home, boarding home, home for the aged, or other residential facility, whether operated for profit or not, which undertakes through its ownership or management to provide housing, meals, and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator. Specialty licensed facilities are available for individuals with increased health care needs. There are three types of specialty licenses: Extended Congregate Care License, Limited Nursing Services License and Limited Mental Health License.

Regardless of the facility’s license status, residents living in ALFs cannot have conditions that require 24-hour nursing supervision. The only exception to this is for an existing resident who qualifies for and receives hospice services from a licensed hospice while continuing to reside in an ALF.

Specialty License: Extended Congregate Care

An Extended Congregate Care (ECC) license is issued to an assisted living facility that provides services beyond those authorized for a standard ALF, meaning that they may provide additional nursing services and total assistance with personal care services. New facilities may apply for an ECC license at the time of initial application. Existing facilities qualifying to provide extended congregate care services must have maintained a standard license and may not have been subject to administrative sanctions during the previous two years, or since initial licensure if the facility has been licensed for less than two years. Mandatory services that must be provided include, but are not limited to total help with the activities of daily living, more frequent nursing assessments and assistance with administered and self-administered medications.

Specialty License: Limited Nursing Services

A Limited Nursing Services (LNS) License is issued to an ALF that provides nursing services that are beyond what a standard ALF is licensed to provide. Residents living in an ALF with a LNS license must meet the same residency criteria for a standard licensed ALF; however, they may also receive a limited number of nursing services. Existing facilities qualifying to provide limited nursing services shall have maintained a standard license and may not have been subject to administrative sanctions that affect the health, safety, and welfare of residents for the previous two years or since initial licensure of the facility has been licensed for less thantwo years. The nursing services available in a limited nursing services facility are more extensive than what is provided in a standard ALF and are provided pursuant to the resident’s service plan.

Specialty License: Limited Mental Health

A Limited Mental Health (LMH) License is issued to a standard ALF that serves three or more mental health residents. A mental health resident is an individual who receives social security disability income or supplemental security income due to a mental disorder as determined by the Social Security Administration and receives optional state supplementation. To obtain a limited mental health license, a facility must hold a standard license as an assisted living facility, must not have any current uncorrected deficiencies or violations, and must ensure that, within six months after receiving a limited mental health license, the facility administrator and the staff of the facility who are in direct contact with mental health residents must complete specified training.

ALF Staff Training

Administrators and Managers: Administrators and other ALF staff must meet minimum training and education requirements that are established by the Department of Elder Affairs, that are comprised of “core” training, in-service training and continuing education that is required throughout their tenure. Every facility shall be under the supervision of an administrator who is responsible for the operation and maintenance of the facility including the management of all staff and the provision of adequate care to all residents. Administrators who supervise more than one facility shall appoint in writing a separate “manager” for each facility.

Staff: Staff with direct care responsibilities are required to have in-service training that covers a variety of topics, including infection control training, elopement training, training on “do not resuscitate” orders and may have to complete training on special topics such as self-administration of medication, Alzheimer’s disease and related disorders, and HIV/AIDS training. Staff in “direct contact” means direct care staff and staff whose duties take them into resident living areas and require them to interact with residents (this does not include maintenance, food service, or administrative staff). There are additional specific requirements for ECC staff and LMH staff, such as continuing education on ECC and LMH specific topics.

Resident Rights

Each resident living in an ALF has special rights that are delineated in Florida Statutes. An example of some of these rights are that no resident of a facility shall be deprived of any civil or legal rights, benefits, or privileges guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States as a resident of a facility; every resident shall have the right to live in a safe and decent living environment, free from abuse and neglect; be treated with consideration, respect and with due recognition of personal dignity, individuality, and the need for privacy. Each patient is given a copy of their rights upon entering the ALF.

Protection of Resident Rights

The Long-Term Care Ombudsman Program is comprised of 17 local councils across Florida, all offering free, localized advocacy services. The Ombudsman program is housed in the Department of Elder Affairs (DOEA) and is headed by the State Long-Term Care Ombudsman, Leigh Davis, who is appointed by the DOEA secretary. An ombudsman is a specially-trained and certified volunteer who has been given authority under federal and state law to identify, investigate and resolve complaints made by, or on behalf of, long-term care facility residents. Ombudsmen respond to resident complaints and concerns ranging from issues with medication and care administration to matters of dignity and respect. It is the ombudsman’s role to protect the legal rights of residents and assure that they receive appropriate treatment and quality care. Anyone can report a concern, including residents, relatives, friends, facility staff, legal representatives and other concerned citizens. Complaints may be related to the facility, its employees, or any agency or person who threatens or violates the rights, health, safety or welfare of a resident. Complaints filed with the Long-Term Care Ombudsman Program are kept completely confidential, unless permission is given by the resident or complainant to disclose related information.

Changing Law

Over the past two legislative sessions, lawmakers have been trying to strengthen the regulation of ALFs. This legislative push was prompted by the Miami Herald’s investigative series “Neglected to Death” published in April 2011. This series reported numerous instances where the investigative journalists alleged that AHCA failed in its duty to protect the residents of Florida’s ALFs. The investigative series reported on a series of incidents that occurred in licensed ALFs that resulted in death or serious injury to a resident. The journalists created the impression that these incidents were caused by lax enforcement efforts by AHCA. The article stated that AHCA repeatedly caught facilities breaking the law; however, AHCA failed to act on the violations, or in some cases only partially punished the violators agreeing to reduced fines and suspensions rather than full fines and revocation of licenses. As reported in the article, the ombudsman program was reporting more and more occurrences of abuse and neglect in Florida ALFs, however according to the articles, AHCA failed to investigate a large portion of the cases.

Prompted by the Miami Herald investigative reports, in July 2011, Governor Rick Scott directed AHCA to examine the regulation and oversight of ALFs. AHCA’s response was to increase its enforcement efforts, and Administrative Complaints with severe sanctions for ALF operators found not to be in compliance with licensure standards. AHCA also created a workgroup with the objective to make recommendations that would improve the monitoring of safety in ALFs. The workgroup had two phases and produced a final report to the Governor and Legislature on November 26, 2012. In June 2012, the DOEA, in consultation with AHCA, the Department of Children and Families (DCF) and the Department of Health (DOH), began rulemaking meetings to address the problems with ALF regulation.

In the 2013 legislative session, an “ALF reform bill” was proposed but failed to pass. In the most recent 2014 legislative session Senate Bill 248, with a proposed effective date of July 1, 2014, was proposed to strengthen the regulation of ALFs and make other regulatory changes to improve their quality. Among other goals, the bill would have clarified issues regarding mental health residents in an ALF relating to necessary services and would require facilities with one or more, rather than three or more state supported mental health residents to obtain a Limited Mental Health License. The bill proposed changes to resident rights regarding the protection against retaliatory action for presenting grievances. The proposed bill also authorized additional staff duties in the assistance with self administration of medication and required additional training for staff. However, the bulk of the bill was directed at the regulation of ALFs by AHCA through increased fines for violations, double fines for repeated violations, fines against a facility that does not show good cause for terminating the residency of an individual, specifying the circumstances under which AHCA must impose an immediate moratorium on a facility, and even authorizing AHCA to revoke the license of a facility that has or had a 25 percent or greater financial ownership interest in a second facility which closed due to financial inability to operate or was the subject of other specified administrative actions.

The proposed bill was estimated to generate approximately $1.1 million of additional net revenues for AHCA per year based on the revised fine amounts. Of course, one aspect of the increased administrative penalties and fines that would be handed out by AHCA is that there will be an increased number of legal cases brought on by the harsher penalties and fines. In the face of opposition from many in the ALF industry, the bill failed to pass.

What does this mean for providers?

Although Senate Bill 248 did not pass during this legislative session, the fact remains that lawmakers will most likely continue in their pursuit of stricter regulation of ALFs. In fact, AHCA has already launched a regulatory “crackdown” on ALFs. If an ALF is cited for deficiencies during a survey, investigation or monitoring visit, AHCA may file an Administrative Complaint and seek to impose sanctions. Civil penalty sanctions available to AHCA depend on the class of violation. There are four classes: Class I violation penalties are between $5,000 and $10,000 for each violation; for each Class II violation between $1,000 and $5,000; for each Class III violation between $500 and $1,000; and for each Class IV violation between $100 and $200 for each violation if the problem is not corrected. During fiscal years 2011-2013 AHCA entered 115 final orders for Class I violations, 749 final orders for Class II violations, 507 final orders for uncorrected Class III violations, and 18 final orders for uncorrected Class IV violations.

In addition to financial penalties, AHCA may also sanction an ALF by imposing an emergency moratorium or suspension on patient admissions, denial of a license, temporary license suspension and permanent revocation of the ALF license. For the period between July 1, 2012 and June 30, 2013, the current count for AHCA actions against ALFs is 43 cases involving suspension, revocation, moratorium on admissions or denial of licenses. Below are examples of AHCA’s crackdown and all providers should be aware that they are susceptible to increased scrutiny by AHCA.

Premier Adult Care:

  • Owned two houses, one in Titusville operating as a five-bed adult family care home and one in Merritt Island operating as a two-bed ALF seeking to operate under the exemption that “Any person who provides housing, meals, and one or more personal services on a 24-hour basis in the person’s own home to not more than two adults who do not receive optional state supplementation. The person who provides the housing, meals, and personal services must own or rent the home and reside therein.”
  • The Merritt Island home was under a lease agreement between the owner and the caregiver who provided services to the two residents of the Merritt Island home that was operating as an ALF under the “exception.”
  • AHCA filed an administrative complaint against the ALF stating that it was operated and maintained without a license, which the Agency determined directly threatened the physical or emotional health, safety, or security of the residents; and also that it failed to maintain its operation in accordance with the minimum requirements of law, failing to provide care and services at mandated minimum standards, and intentionally operated an unlicensed ALF. AHCA sought fines in the amount of $7,000.
  • The case did not involve any allegation of abuse, neglect, or mistreatment in any manner whatsoever of any resident of either the Merritt Island or Titusville homes. The sole issue was whether the Merritt Island home was required to obtain a license, or was instead exempt from licensure.
  • Although the Administrative Law Judge recommended only a temporary suspension and payment of a fine, AHCA over-ruled the recommendation and the ALF’s license was permanently revoked.

Pompano Retirement Village

  • Owner and vice president of the ALF Pompano Retirement Village was a controlling interest as defined by Florida Statute.
  • 3/5/12 A criminal information filed charging the Owner with unlawful receipt of kickbacks in a federal health care program, considered to be a disqualifying offense.
  • 4/5/12 Owner of the ALF was arrested.
  • April 2012 Plea was entered.
  • 6/15/12 Judgment entered against Owner.
  • 7/12/12 Documents filed with Florida Division of Corporations evidencing the resignation of Owner as vice president of the ALF.
  • 10/19/12 AHCA filed an Amended Administrative Complaint charging the ALF with not timely removing Owner from his position with the ALF, constituting an act upon which a license may be denied and furthermore that it failed to abide by the background screening standards of the Florida Statutes.
  • The ALF’s license was therefore revoked.

Personal Care:

  • Two facilities and each location had 14 beds.
  • The ALF was threatened with an Emergency Suspension Order after a diabetic resident had to be transported to the hospital with a stage 3 decubitus ulcer on her foot.
  • AHCA filed at least five Administrative Complaints against these two facilities collectively over a period of two years, alleging any combination of the following: failure to keep medication records updated, provide proper assistance with medication, failure to document changes in medications, failure to have background checks on employees, failure to provide safe and decent living environments (medications not in lock box), and similar deficiencies.
  • AHCA sought license revocation and administrative fines.
  • AHCA settled for a voluntary relinquishment of both ALF licenses within one year and no fines.

The Paradise ALF:

  • Administrative complaint seeking a $1,000 fine was filed after AHCA conducted a survey and alleged that two staff members were lacking in background screening clearance.
  • Administrative complaint seeking a $5,000 fine and revocation of license filed after a complaint survey wherein it was alleged that among other things, the ALF failed to protect the residents from unsafe conditions and deficient practices that exist in the facility.
  • AHCA issued an Immediate Moratorium on Admissions and Emergency Suspension of License Order after the complaint survey.
  • The ALF failed to timely respond to the Administrative Complaint and Election of Rights, thus waiving its right to a hearing to contest the allegations and sanctions sought in the Administrative Complaint.
  • The ALF’s license was therefore revoked.

Provider Rights

If an ALF receives an Administrative Complaint from AHCA, it is notified of the right to request an administrative hearing. If the ALF elects to seek an administrative hearing, there are two options, an informal administrative hearing or a formal administrative hearing. The ALF must request the hearing within 21 days of the day the Administrative Complaint was received. At an informal hearing, the ALF may submit testimony and written evidence to AHCA to show that the proposed agency action contained in the Administrative Complaint is too severe or that the fine should be reduced. If a formal hearing is requested, the ALF will have the opportunity to present its case in front of an administrative law judge appointed by the Division of Administrative Hearings, not just to plead their case with AHCA. The attorney for the ALF will be able to present testimony and witnesses, can cross-examine witnesses presented by AHCA, can conduct formal discovery to obtain information that AHCA possesses and will have the opportunity to submit proposed findings of fact and conclusions of law for consideration by the administrative law judge. The attorney has the opportunity to fight for the ALF’s rights to operate and that decision will be made by an administrative law judge, not AHCA.

Conclusion

All ALFs will need to increase their vigilance in complying with licensure standards, training standards and resident care. The purpose of increased standards is to protect the residents of ALFs. Unfortunately, sometimes the side effect of stricter fines and heavier penalties is unfair policing of providers which results in higher agency revenue. If you have recently had a survey with poor results and an Administrative Complaint is imminent, call us today. Don’t wait.

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