The Agency for Health Care Administration (AHCA) licenses thousands of health care facilities and entities throughout Florida. Licensure is a legal requirement before you can do business in Florida. The process starts by filing with AHCA an Initial Application if you are seeking a first-time license.
Once AHCA gets your application it is assigned to a Governmental Analyst, who reviews it for completeness. Is there anything missing? In the great majority of cases, the analyst sends the applicant what is known as an “Omission Letter.” The letter gives you a deadline of approximately 21 or 30 days from the date of the letter to provide additional information or supplement your application. Failure to submit information by the deadline is usually fatal and will result in a denial of your application.
Once you receive a letter or document entitled “Notice of Intent to Deny” you should immediately and without delay contact an experienced health care attorney who represents licensees with this issue. We have found that there is a direct correlation between business people who try and handle this on their own (do it yourself or “DIY) and failure to get the license. Every year numerous individuals try to navigate the bureaucratic maze of AHCA thinking they are saving money, only to be ultimately denied the license.
When the Notice of Intent to Deny is issued you only have 21 days to return the Election of Rights (EOR) to AHCA. Here is where the Do It Yourself crowd goes wrong and loses valuable time and costs their business money: The EOR Form is a trap for the unwary. The form is drawn up by AHCA lawyers and depending upon which option you select you may be unwittingly causing yourself to be denied. Many people think choosing the option to “admit” that certain facts are true is the correct course, but oftentimes the Agency uses this admission to expedite your denial. Conversely, some who are uneducated in the legal process of licensing law elect to “deny” the allegations or challenge the Notice of Intent to Deny. The problem here is that AHCA and the Florida Administrative Code have precise requirements for challenging the denial and it’s not enough to simply check the box. You have to file a formal Petition that meets all the specificity requirements of the law. If you don’t, AHCA quickly rejects your challenge and denies the license based on case law.
If you get a Notice of Denial you should immediately and without delay consult and retain an experienced health care attorney.
Existing healthcare businesses who already have a license need to renew the license with AHCA, usually every 2 years. A common statement we hear from existing licensees is “We thought AHCA was going to send us a reminder postcard or letter?? We forgot to file our Renewal Application. Now we don’t have a license!!” This is a tragedy because everyone should have a calendar marking the date of their renewal or put a sign up in your office so that your management team remembers to send in the application.
If you forget to file a Renewal Application the bad news is that you have no license and that if you continue to operate you are not only in violation of the regulatory law but criminal law. It’s criminal! Meaning the owners and operators of the business can potentially be fined, put on probation or imprisoned.
But it doesn’t have to be this way. If you do not file your Renewal Application by the AHCA deadline your license will expire. If AHCA investigators visit your business or have reason to believe you are operating you will get a Cease and Desist Letter with the threat of criminal prosecution. If you continue to operate you run the risk that AHCA will involve your local sheriff in the problem.
We have experience representing clients who have received from AHCA a notice that their license has expired or a Cease and Desist Letter. If this happens to you, it is our professional judgment that you gather the letter and relevant paperwork and contact an experienced health care attorney to handle your case.
There are options but those options become limited if you do not quickly act.
Another common myth that business owners believe is that they can simply sell their health care facility or entity to anyone and then the new owner will apply for a license with AHCA. Or the seller wrongly informs the buyer that “You can just file for a renewal of my license once you take over the business.” We are aware of situations where owners incorrectly believe that both are true. It is virtually assured that AHCA will deny your license under these situations.
If AHCA rejects your Change of Ownership application you will receive a Notice of Intent to Deny the License. You have a time deadline to respond. Many of the problems associated with a denial involve situations where AHCA does not believe your application has sufficient proof of financial viability, personnel or owners have failed a background check or not had one at all, missing information or the application for change of ownership was submitted after the closing date for the sale of the business.
However, all is not lost! If you encounter such problems you should immediately and without delay contact an experienced health care attorney. There are certain strategies and methods available and in many situations, it’s not too late to recover from this scenario.
In Florida, health care providers and their investors must use caution when preparing an application for initial licensure, renewal or change of ownership with the Agency for Health Care Administration (AHCA). In preparing an application for submission to AHCA the focus must be on:
A recent case, Roberto Marrero v. AHCA is instructive on this issue. Mr. Marrero owned 100% of the stock in Trust Care Health Services, a home health agency in which he purchased shares. The company was required to file a CHOW (Change of Ownership Application) in order to obtain a new license. Mr. Marrero had previously served as Administrator of All-Med Network Corp., a home health agency, which AHCA had terminated. This company was terminated from Medicare sometime around 2006. Because AHCA determined that the CHOW application did not correctly disclose certain information concerning Mr. Marrero’s prior role in that company, AHCA denied the application. Marrero appealed to the Third District Court of Appeal and argued that although Medicare terminated his former company, he was never personally sanctioned. The Third District Court of Appeal held in favor of AHCA and indicated that the Agency for Health Care Administration did not abuse its discretion.
The Marrero case demonstrates the power of AHCA to deny an application based on officers and/or investors who have previously been affiliated with health care entities that were disqualified from participation in certain governmental programs, namely Medicare and Medicaid. Similarly, other background problems can also disqualify an individual from serving as an officer, investor, or in management.
It is also important to retain qualified and experienced consultants to guide you in preparation for the Proof of Financial Ability. It is advisable to choose preferably a Certified Public Accountant (CPA) with experience handling these matters. Remember, the Agency for Health Care Administration has CPAs on staff to try and prove your estimates of financial ability or viability are inaccurate. It’s much more cost effective to have talented and experienced professionals help you on the front end of the process. Our law firm helps provide the skilled personnel to put your application on the right track!
If you find yourself in one of these scenarios it is strongly advised that you seek an experienced attorney. Individuals at AHCA review 1000s of applications per year and it’s easy to get lost in the shuffle. Put simply, you’re just a number.
We are available for advice, consultation, and representation. If you desire our help we recommend: