STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, O¢|- JAX o- vs. AHCA NO.2004004044 Return Receipt Requested COLUMBIA HOSPITAL (PALM BEACHES) 7002 2410 0001 4237 0874 LIMITED PARTNERSHIP, d/b/a 7002 2410 0001 4237 0881 COLUMBIA HOSPITAL, 7002 2410 0001 4237 0898 Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (hereinafter “AHCA”), by and through the undersigned counsel, files this Administrative Complaint against Columbia Hospital (Palm Beaches) Limited Partnership, d/b/a Columbia Hospital (hereinafter “Columbia Hospital”) pursuant to 28-106.111 Florida Administrative Code (F.A.c.) and Chapter 120, Florida Statutes ("Fla. Stat.") hereinafter alleges: NATURE OF THE ACTION 1. This is an action to impose an administrative fine in the amount of ten thousand ($10,000.00) dollars pursuant to Section 395.1065(2) (a) Fla. Stat. EXHIBIT A JURISDICTION AND VENUE 2. This court nas jurisdiction pursuant to Section 120.569 and 120.57 Fla. Stat. and Chapter 28-106 F.A.C. 3. Venue lies in Palm Beach County, pursuant to 120.57 Fla. Stat. and Chapter 28, F.A.C. PARTIES 4. AHCA is the enforcing authority with regard to Hospital licensure law pursuant to Chapter 395, Part I, Fla. Stat. and Rules 59A-3 F.A.C. 5. Columbia Hospital is a hospital facility located at 2201 45% Street, West Palm Beach, Florida 33407 and is licensed under Chapter 395, Part I, Fla. Stat. and Chapter 5S9A-3. F.A.C. COUNT I COLUMBIA HOSPITAL FAILED TO NOTIFY THE AGENCY OF THE TERMINATION OF NEUROSURGERY SERVICES PRIOR TO THE CHANGE IN THE HOSPITAL SERVICE CAPABILITY 395.1041(2), Florida Statutes 59A-3.255(4) Florida Administrative Code 6. AHCA re-alleges and incorporates (1) through (5) as if fully set forth herein. 7. AHCA received a letter from Valerie A. Jackson, CEO of Columbia Hospital, West Palm Beach, on March 25, 2004. (Attachment 1). 8. In that letter Ms. Jackson states that Columbia hospital West Palm Beach is no longer providing neurosurgical services and that neurosurgery is not being provided in the emergency room. 9. The letter further states that between March 26, 2003 and March 25, 2004 “services have changed”. 10. AHCA was not informed of any change or termination of any services prior to the change in service capability. 11. Based on the foregoing, Columbia Hospital violated Section 395.1041(2), Fla. Stat. (2003) and 59A-3.255(4) Fila. Administrative Code (2003). 12. Section 395.1041(5){a) authorizes a fine to be assessed of $10,000.00. PRAYER_FOR RELIEF WHEREFORE, AHCA intends to: A. Assess against Columbia Hospital an administrative fine of $10,000.00 for the violations described in Count I in accordance with Section 395.1041(5) Fla. Stat. B. Award the Agency for Health Care Administration reasonable attorney’s fees, expenses, and costs. Respondent is notified that it has a right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statues (2003). Specific options for administrative action are set out in the attached Election of Rights and explained in the attached Explanation of Rights. All requests for hearing shall be made to the Agency for Health Care Administration, attention Lealand McCharen, Agency clerk, 2727 Mahan Drive, Mail Stop #3, Tallahassee, Florida 32308. Telephone (850) 922-5873. RESPONDENT IS FURTHER NOTIFIED THAT FAILURE TO RECEIVE A REQUEST FOR A HEARING WITHIN TWENTY-ONE (21) DAYS OF RECEIPT OF THIS COMPLAINT, PURSUANT TO THE ATTACHED ELECTION OF RIGHTS, WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. Respectfully submitted. = Neison EY R dney Counsel for Petitioner Agency for Health Care Administration Spokane Building, Suite 103 8350 N.W. 52" Terrace Miami, Florida 33166 (305) 470-6802 Copies furnished to: Diane Reiland Field Office Manager Agency for Health Care Administration 1710 East Tiffany Drive, Suite 100 West Palm Beach, Florida 33407 Elizabeth Dudek Deputy Secretary Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Jean Lombardi Finance and Accounting Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed (Return Receipt Requested) to the Administrator, Columbia Hospital, 2201 45%° Street, West Palm Beach, Florida 33407; Columbia Hospital (Palm Beaches) Limited Partnership, One Park Plaza, Nashville, TN 37203, and to C.T. Corporation System, 1200 South Pine Island Road, Plantation, Florida 33324 on [v a , 2004, Nelson E. Rodrley 19-2804 15:32 FROM:COLUMBIA HOPITAL 5618448955 TO: 18586816515 P3575 J&B BUSH, GOVERNOR . MARY PAT MOORE, INTERIM, SECRETARY CERTIFIED MAIL RETURN RECEIPT REQUESTED 7001 0360 0003 3825 2006 March 15, 2004 Valerie Jackson, CEO Columbia Hospital 2201 45" Street West Palm Beach, FL 33407 Re: Emergency Neurosurgery Services at Columbia Hospital Dear Ms, Jackson: As a result of an informal survey conducted by the Agency for Health Care Administration, Hospital and Outpatient Services Unit, it has come to my attention that Columbia Hospital may not be mecting its obligation regarding the provision of emergency neurosurgery services under statc licensure rules. Specifically, Rule 59A-3.255(4), Florida Administrative Code requires that, “Every hospital providing emergency services shall ensure the provision of services within the service capability of the hospital, 24 hours per day, 7 days per week cither directly or indirectly through 1) an agreement with another hospital made prior to receipt of a patient in need of the service; or 2) an agreement with one or more physicians made prior to receipt of a patient in need of the service; or 3) any other arrangement made prior to receipt of a patient in need of the service.” ‘ 1 The most recent Hospital Emergency Services form completed by your facility indicates that emergency neurosurgery services are provided indirectly through an agreement with another hospital or one or more physicians, Within 10 days of reccipt of this letter, please provide documentation that demonstrates Columbia Hospital is currently providing emergency neurosurgery services in accordance with state licensure regulations, : If you have any questions or would like to discuss this in greater detail, please feel free to contact me at (850) 922-7760. Sincerely, Sug 1 eH Laura MacLafferty, Unit Manager Hospital and Outpatient Services Unit EXHIBIT cc: West Palm Beach Ficld Office tabbies* B 2727 Mahan Drive * Mail Stop #31 Tallahassec, FL 32308 Visir AHCA online at www fdke. siate.ft.us FLORIDA AGENCY FOR HEAITH CARF ADM'N'STRATION JEB BUSH, GOVERNOR MARY PAT MOORE, INTERIM SECRETARY Hospital Emergency Services Hospital Name Street Address Telephone #: City Fax #: Please indicate by LX! the emergency services provided using the following guide: 0 = Service not provided (Not an inpatient service or hospital does not operate an emergency department). 1 = Service provided 24 hours per day, 7 days per week, either directly or indirectly** through an agreement with one or more physicians. 2 = Service provided 24 hours per day, 7 days per week, either directly or indirectly** through an agreement with another hospital. 3 = Service provided 24 hours per day, 7 days per week, both directly and indirectly** through a combination of agreements with one or more physicians and another hospital. 4 = Service provided on a limited basis by exemption or exempt from providing emergency services (Must attach copy of exemption granted by the Agency). **Note: If services are provided indirectly with another hospital or one or more physicians, a copy of the signed written agreement must be attached. SERVICE 0 1 2 3 4 Allergy C] O CJ CJ | Anesthesia LJ L LJ CJ L] Burns O | C] C] 0) Cardiology oO O C] (J C] Cardiovascular Surgery O | oO im CO Colon / Rectal Surgery | im O CJ CL Dermatology C] C) | CJ I Emergency Medicine C) OJ im CJ LJ Endocrinology Oo O O CJ Cc] Family Medicine oO O CJ CJ 0 Gastroenterology OQ C] C] CJ im General Surgery C 0 | CJ LO Geriatrics C C] 0 CJ im Gynecology im i” [| CJ |_| Hematology iz EXHIBIT CJ CJ (Continued) Cc SERVICE (Continued) Hyperbaric Medicine Immunology Infectious Disease Internal Medicine Io OOOe IOOOO)» O Nephrology C ODOOOOO + Neurology Neurosurgery Obstetrics Oncology Ophthalmology OOOoOoOO Oral/Maxillo-facial Surgery Orthopedics Otolaryngology Pediatrics Plastic Surgery Podiatry Psychiatry Pulmonary Medicine Radiology Trauma Center - certified Thoracic Surgery Urology OQOOOOORCOOOOOOOOOoOOoOOOOD - OOHOOOOOOOOOOOOOROOO OOOOOOOOOOU! oO OOOOOOOOOOOOOOOT! Vascular Surgery Note: The services provided should directly reflect the credentialing / specialty of the physicians available to provide the specific service. Hospital CEO: Date: Signature monvdd/yyyy CEO Name: Title: Print Print e-mail address: Mail Completed Forms to: Agency for Health Care Administration Hospital & Outpatient Services Unit 2727 Mahan Drive, Mail Stop #31 Tallahassee, FL 32308 www.fdhe.state.fl.us AHCA Form 3130-8008, April 2004 395.1041 Access to emergency services and care.— (1) LEGISLATIVE INTENT.—The Legislature finds and declares it to be of vital importance that emergency services and care be provided by hospitals and physicians to every person in need of such care. The Legislature finds that persons have been denied emergency services and care by hospitals. It is the intent of the Legislature that the agency vigorously enforce the ability of persons to receive all necessary and appropriate emergency services and care and that the agency act in a thorough and timely manner against hospitals and physicians which deny persons emergency services and care. It is further the intent of the Legislature that hospitals, emergency medical services providers, and other health care providers work together in their local communities to enter into agreements or arrangements to ensure access to emergency services and care. The Legislature further recognizes that appropriate emergency services and care often require followup consultation and treatment in order to effectively care for emergency medical conditions. (2) INVENTORY OF HOSPITAL EMERGENCY SERVICES.—The agency shall establish and maintain an inventory of hospitals with emergency services. The inventory shall list all services within the service capability of the hospital, and such services shal! appear on the face of the hospital license. Each hospital having emergency services shall notify the agency of its service Capability in the manner and form prescribed by the agency. The agency shall use the inventory to assist emergency medical services providers and others in locating appropriate emergency medical care. The inventory shail also be made available to the general public. On or before August 1, 1992, the agency shall request that each hospital identify the services which are within its service capability. On or before November 1, 1992, the agency shall notify each hospital of the service capability to be included in the inventory. The hospital has 15 days from the date of receipt to respond to the notice. By December 1, 1992, the agency shall publish a final inventory. Each hospital shall reaffirm its service capability when its license is renewed and shail notify the agency of the addition of a new service or the termination of a service prior to a change in its service capability. (3) EMERGENCY SERVICES; DISCRIMINATION; LIABILITY OF FACILITY OR HEALTH CARE PERSONNEL.— (a) Every general hospital which has an emergency department shail provide emergency services and care for any emergency medical condition when: 1. Any person requests emergency services and care; or 2. Emergency services and care are requested on behalf of a person by: a. An emergency medical services provider who is rendering care to or transporting the person; or b. Another hospital, when such hospital is seeking a medically necessary transfer, except as otherwise provided in this section. (b) Arrangements for transfers must be made between hospital emergency services personnel for each hospital, unless other arrangements between the hospitals exist. (c) A patient, whether stabilized or not, may be transferred to another hospital which has the requisite service capability or is not at service capacity, if: 1. The patient, or a person who is legally responsible for the patient and acting on the patient's behalf, after being informed of the hospital's obligation under this section and of the risk of transfer, requests that the transfer be effected; 2. Aphysician has signed a certification that, based upon the reasonable risks and benefits to the patient, and based upon the information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another hospital 395.1041 Access to emergency services and care.— (1) LEGISLATIVE INTENT.—The Legislature finds and declares it to be of vital importance that emergency services and care be provided by hospitals and physicians to every person in need of such care. The Legislature finds that persons have been denied emergency services and care by hospitals. It is the intent of the Legislature that the agency vigorously enforce the ability of persons to receive all necessary and appropriate emergency services and care and that the agency act in a thorough and timely manner against hospitals and physicians which deny persons emergency services and care. It is further the intent of the Legislature that hospitals, emergency medical services providers, and other health care providers work together in their local communities to enter into agreements or arrangements to ensure access to emergency services and care. The Legislature further recognizes that appropriate emergency services and care often require followup consultation and treatment in order to effectively care for emergency medical conditions. (2) INVENTORY OF HOSPITAL EMERGENCY SERVICES.—The agency shall establish and maintain an inventory of hospitals with emergency services. The inventory shall jist all services within the service capability of the hospital, and such services shall appear on the face of the hospital license. Each hospital having emergency services shall notify the agency of its service capability in the manner and form prescribed by the agency. The agency shall use the inventory to assist emergency medical services providers and others in locating appropriate emergency medical care. The inventory shall also be made available to the general public. On or before August 1, 1992, the agency shail request that each hospital identify the services which are within its service capability. On or before November 1, 1992, the agency shall notify each hospital of the service capability to be included in the inventory. The hospital has 15 days from the date of receipt to respond to the notice. By December 1, 1992, the agency shall publish a final inventory. Each hospital shall reaffirm its service capability when its license is renewed and shal! notify the agency of the addition of a new service or the termination of a service prior to a change in its service capability. (3) EMERGENCY SERVICES; DISCRIMINATION; LIABILITY OF FACILITY OR HEALTH CARE PERSONNEL.— (a) Every general hospital which has an emergency department shall provide emergency services and care for any emergency medical condition when: 1. Any person requests emergency services and care; or 2. Emergency services and care are requested on behalf of a person by: a. An emergency medical services provider who is rendering care to or transporting the person; or b. Another hospital, when such hospital is seeking a medically necessary transfer, except as otherwise provided in this section. (b) Arrangements for transfers must be made between hospital emergency services personnel for each hospital, unless other arrangements between the hospitals exist. (c) A patient, whether stabilized or not, may be transferred to another hospital which has the requisite service capability or is not at service capacity, if: 1. The patient, or a person who is legally responsible for the patient and acting on the patient's behalf, after being informed of the hospital's obligation under this section and of the risk of transfer, requests that the transfer be effected; 2. Aphysician has signed a certification that, based upon the reasonable risks and benefits to the patient, and based upon the information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another hospital 395.1041 Access to emergency services and care.— (1) LEGISLATIVE INTENT.-—The Legislature finds and declares it to be of vital importance that emergency services and care be provided by hospitals and physicians to every person in need of such care. The Legislature finds that persons have been denied emergency services and care by hospitals. It is the intent of the Legislature that the agency vigorously enforce the ability of persons to receive all necessary and appropriate emergency services and care and that the agency act in a thorough and timely manner against hospitals and physicians which deny persons emergency services and care. It is further the intent of the Legislature that hospitals, emergency medical services providers, and other health care providers work together in their local communities to enter into agreements or arrangements to ensure access to emergency services and care. The Legislature further recognizes that appropriate emergency services and care often require followup consultation and treatment in order to effectively care for emergency medical conditions. (2) INVENTORY OF HOSPITAL EMERGENCY SERVICES.—The agency shall establish and maintain an inventory of hospitals with emergency services. The inventory shall list all services within the service capability of the hospital, and such services shall appear on the face of the hospital license. Each hospital having emergency services shall notify the agency of its service capability in the manner and form prescribed by the agency. The agency shall use the inventory to assist emergency medical services providers and others in locating appropriate emergency medical care. The inventory shall also be made available to the general public. On or before August 1, 1992, the agency shall request that each hospital identify the services which are within its service capability. On or before November 1, 1992, the agency shall notify each hospital of the service capability to be included in the inventory. The hospital has 15 days from the date of receipt to respond to the notice. By December 1, 1992, the agency shall publish a final inventory. Each hospital shall reaffirm its service capability when its license is renewed and shall notify the agency of the addition of a new service or the termination of a service prior to a change in its service capability. (3) EMERGENCY SERVICES; DISCRIMINATION; LIABILITY OF FACILITY OR HEALTH CARE PERSONNEL.— (a) Every general hospital which has an emergency department shall provide emergency services and care for any emergency medical condition when: 1. Any person requests emergency services and care; or 2. Emergency services and care are requested on behalf of a person by: a. An emergency medical services provider who is rendering care to or transporting the person; or b. Another hospital, when such hospital is seeking a medically necessary transfer, except as otherwise provided in this section. (b) Arrangements for transfers must be made between hospital emergency services personnel for each hospital, unless other arrangements between the hospitals exist. (c) A patient, whether stabilized or not, may be transferred to another hospital which has the requisite service capability or is not at service capacity, if: 1. The patient, or a person who is legally responsible for the patient and acting on the patient's behalf, after being informed of the hospital's obligation under this section and of the risk of transfer, requests that the transfer be effected; 2. Aphysician has signed a certification that, based upon the reasonable risks and benefits to the patient, and based upon the information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another hospital outweigh the increased risks to the individual's medical condition from effecting the transfer; or 3. A physician is not physically present in the emergency services area at the time an individual is transferred and a qualified medical person signs a certification that a physician, in consultation with personnel, has determined that the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the individual's medical condition from effecting the transfer. The consulting physician must countersign the certification; provided that this paragraph shall not be construed to require acceptance of a transfer that is not medically necessary. (d)1. Every hospital shall ensure the provision of services within the service capability of the hospital, at all times, either directly or indirectly through an arrangement with another hospital, through an arrangement with one or more physicians, or as otherwise made through prior arrangements. A hospital may enter into an agreement with another hospital for purposes of meeting its service capability requirement, and appropriate compensation or other reasonable conditions may be negotiated for these backup services. 2. If any arrangement requires the provision of emergency medical transportation, such arrangement must be made in consultation with the applicable provider and may not require the emergency medical service provider to provide transportation that is outside the routine service area of that provider or in a manner that impairs the ability of the emergency medical service provider to timely respond to prehospital emergency calls. 3. A hospital shall not be required to ensure service capability at all times as required in subparagraph 1. if, prior to the receiving of any patient needing such service capability, such hospital has demonstrated to the agency that it lacks the ability to ensure such capability and it has exhausted all reasonable efforts to ensure such capability through backup arrangements. in reviewing a hospital's demonstration of lack of ability to ensure service capability, the agency shall consider factors relevant to the particular case, including the following: a. Number and proximity of hospitals with the same service capability. b. Number, type, credentials, and privileges of specialists. c. Frequency of procedures. d. Size of hospital. 4. The agency shall publish proposed rules implementing a reasonable exemption procedure by November 1, 1992. Subparagraph 1. shall become effective upon the effective date of said rules or January 31, 1993, whichever is earlier. For a period not to exceed 1 year from the effective date of subparagraph 1., a hospital requesting an exemption shall be deemed to be exempt from offering the service until the agency initially acts to deny or grant the original request. The agency has 45 days from the date of receipt of the request to approve or deny the request. After the first year from the effective date of subparagraph 1., if the agency fails to initially act within the time period, the hospital is deemed to be exempt from offering the service until the agency initially acts to deny the request. (e) Except as otherwise provided by law, all medically necessary transfers shall be made to the geographically closest hospital with the service capability, unless another prior arrangement is in place or the geographically closest hospital is at service capacity. When the condition of a medically necessary transferred patient improves so that the service capability of the receiving hospital is no longer required, the receiving hospital may transfer the patient back to the transferring hospital and the transferring hospital shall receive the patient within its service capability. (f) In no event shall the provision of emergency services and care, the acceptance of a medically necessary transfer, or the return of a patient pursuant to paragraph (e) be based upon, outweigh the increased risks to the individual's medical condition from effecting the transfer; or 3. A physician is not physically present in the emergency services area at the time an individual is transferred and a qualified medical person signs a certification that a physician, in consultation with personnel, has determined that the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the individual's medical condition from effecting the transfer. The consulting physician must countersign the certification; provided that this paragraph shaill not be construed to require acceptance of a transfer that is not medicaily necessary. (d)1. Every hospital shall ensure the provision of services within the service capability of the hospital, at all times, either directly or indirectly through an arrangement with another hospital, through an arrangement with one or more physicians, or as otherwise made through prior arrangements. A hospital may enter into an agreement with another hospital for purposes of meeting its service capability requirement, and appropriate compensation or other reasonable conditions may be negotiated for these backup services. 2. {f any arrangement requires the provision of emergency medical transportation, such arrangement must be made in consultation with the applicable provider and may not require the emergency medical service provider to provide transportation that is outside the routine service area of that provider or in a manner that impairs the ability of the emergency medical service provider to timely respond to prehospital emergency calls. 3. Ahospital shall not be required to ensure service capability at all times as required in subparagraph 1. if, prior to the receiving of any patient needing such service capability, such hospital has demonstrated to the agency that it lacks the ability to ensure such capability and it has exhausted all reasonable efforts to ensure such capability through backup arrangements. In reviewing a hospital's demonstration of lack of ability to ensure service capability, the agency shall consider factors relevant to the particular case, including the following: a. Number and proximity of hospitals with the same service capability. b. Number, type, credentials, and privileges of specialists. c. Frequency of procedures. d. Size of hospital. 4, The agency shall publish proposed rules implementing a reasonable exemption procedure by November 1, 1992. Subparagraph 1. shall become effective upon the effective date of said rules or January 31, 1993, whichever is earlier. For a period not to exceed 1 year from the effective date of subparagraph 1., a hospital requesting an exemption shall be deemed to be exempt from offering the service until the agency initially acts to deny or grant the original request. The agency has 45 days from the date of receipt of the request to approve or deny the request. After the first year from the effective date of subparagraph 1., if the agency fails to initially act within the time period, the hospital is deemed to be exempt from offering the service until the agency initially acts to deny the request. (e) Except as otherwise provided by law, all medically necessary transfers shall be made to the geographically closest hospital with the service capability, unless another prior arrangement is in place or the geographically closest hospital is at service capacity. When the condition of a medically necessary transferred patient improves so that the service capability of the receiving hospital is no longer required, the receiving hospital may transfer the patient back to the transferring hospital and the transferring hospital shall receive the patient within its service capability. (f) In no event shall the provision of emergency services and care, the acceptance of a medically necessary transfer, or the return of a patient pursuant to paragraph (e) be based upon, outweigh the increased risks to the individual's medical condition from effecting the transfer; or 3. A physician is not physically present in the emergency services area at the time an individual is transferred and a qualified medical person signs a certification that a physician, in consultation with personnel, has determined that the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the individual's medical condition from effecting the transfer. The consulting physician must countersign the certification; provided that this paragraph shall not be construed to require acceptance of a transfer that is not medically necessary. (d)1. Every hospital shall ensure the provision of services within the service capability of the hospital, at all times, either directly or indirectly through an arrangement with another hospital, through an arrangement with one or more physicians, or as otherwise made through prior arrangements. A hospital may enter into an agreement with another hospital for purposes of meeting its service capability requirement, and appropriate compensation or other reasonable conditions may be negotiated for these backup services. 2. If any arrangement requires the provision of emergency medical transportation, such arrangement must be made in consultation with the applicable provider and may not require the emergency medical service provider to provide transportation that is outside the routine service area of that provider or in a manner that impairs the ability of the emergency medical service provider to timely respond to prehospital emergency calls. 3. A hospital shall not be required to ensure service capability at all times as required in subparagraph 1. if, prior to the receiving of any patient needing such service capability, such hospital has demonstrated to the agency that it lacks the ability to ensure such capability and it has exhausted all reasonable efforts to ensure such capability through backup arrangements. In reviewing a hospital's demonstration of lack of ability to ensure service capability, the agency shall consider factors relevant to the particular case, including the following: a. Number and proximity of hospitals with the same service capability. b. Number, type, credentials, and privileges of specialists. c. Frequency of procedures. d. Size of hospital. 4. The agency shall publish proposed rules implementing a reasonable exemption procedure by November 1, 1992. Subparagraph 1. shall become effective upon the effective date of said rules or January 31, 1993, whichever is earlier. For a period not to exceed 1 year from the effective date of subparagraph 1., a hospital requesting an exemption shall be deemed to be exempt from offering the service until the agency initially acts to deny or grant the original request. The agency has 45 days from the date of receipt of the request to approve or deny the request. After the first year from the effective date of subparagraph 1., if the agency fails to initially act within the time period, the hospital is deemed to be exempt from offering the service until the agency initially acts to deny the request. (e) Except as otherwise provided by law, all medically necessary transfers shall be made to the geographically closest hospital with the service capability, unless another prior arrangement is in place or the geographically closest hospital is at service capacity. When the condition of a medically necessary transferred patient improves so that the service capability of the receiving hospital is no longer required, the receiving hospital may transfer the patient back to the transferring hospital and the transferring hospital shall receive the patient within its service capability. (f) In no event shall the provision of emergency services and care, the acceptance of a medically necessary transfer, or the return of a patient pursuant to paragraph (e) be based upon, or affected by, the person's race, ethnicity, religion, national origin, citizenship, age, sex, preexisting medical condition, physical or mental handicap, insurance status, economic status, or ability to pay for medical services, except to the extent that a circumstance such as age, sex, preexisting medical condition, or physical or mental handicap is medically significant to the provision of appropriate medical care to the patient. (g) Neither the hospital nor its employees, nor any physician, dentist, or podiatric physician shall be liable in any action arising out of a refusal to render emergency services or care if the refusal is made after screening, examining, and evaluating the patient, and is based on the determination, exercising reasonable care, that the person is not suffering from an emergency medical condition or a determination, exercising reasonable care, that the hospital does not have the service capability or is at service capacity to render those services. (h) A hospital may request and collect insurance information and other financial information from a patient, in accordance with federal law, if emergency services and care are not delayed. No hospital to which another hospital is transferring a person in need of emergency services and care may require the transferring hospital or any person or entity to guarantee payment for the person as a condition of receiving the transfer. In addition, a hospital may not require any contractual agreement, any type of preplanned transfer agreement, or any other arrangement to be made prior to or at the time of transfer as a condition of receiving an individual patient being transferred. However, the patient or the patient's legally responsible relative or guardian shall execute an agreement to pay for emergency services or care or otherwise supply insurance or credit information promptly after the services and care are rendered. (i) Each hospital offering emergency services shail post, in a conspicuous place in the emergency service area, a sign clearly stating a patient's right to emergency services and care and the service capability of the hospital. (j) !f a hospital subject to the provisions of this chapter does not maintain an emergency department, its employees shall nevertheless exercise reasonable care to determine whether an emergency medical condition exists and shall direct the persons seeking emergency care to a nearby facility which can render the needed services and shall assist the persons seeking emergency care in obtaining the services, including transportation services, in every way reasonable under the circumstances. (k)1. Emergency medical services providers may not condition the prehospital transport of any person in need of emergency services and care on the person's ability to pay. Nor may emergency medical services providers condition a transfer on the person's ability to pay when the transfer is made necessary because the patient is in immediate need of treatment for an emergency medical condition for which the hospital lacks service capability or when the hospital is at service capacity. However, the patient or the patient's legally responsible relative or guardian shall execute an agreement to pay for the transport or otherwise supply insurance or credit information promptly after the transport is rendered. 2. A hospital may enter into an agreement with an emergency medical services provider for purposes of meeting its service capability requirements, and appropriate compensation and other reasonable conditions may be negotiated for these services. (1) Hospital personnel may withhold or withdraw cardiopulmonary resuscitation if presented with an order not to resuscitate executed pursuant to s. 401.45. Facility staff and facilities shall not be subject to criminal prosecution or civil liability, nor be considered to have engaged in negligent or unprofessional conduct, for withholding or withdrawing cardiopulmonary resuscitation pursuant to such an order. The absence of an order not to resuscitate executed pursuant to s. 401.45 does not preclude a physician from withholding or withdrawing cardiopulmonary resuscitation as otherwise permitted by law. (4) RECORDS OF TRANSFERS; REPORT OF VIOLATIONS.— {a)1. Each hospital shall maintain records of each transfer made or received for a period of 5 or affected by, the person's race, ethnicity, religion, national origin, citizenship, age, sex, preexisting medical condition, physical or mental handicap, insurance status, economic status, or ability to pay for medical services, except to the extent that a circumstance such as age, sex, preexisting medical condition, or physical or mental handicap is medically significant to the provision of appropriate medical care to the patient. (g) Neither the hospital nor its employees, nor any physician, dentist, or podiatric physician shall be liable in any action arising out of a refusal to render emergency services or care if the refusal is made after screening, examining, and evaluating the patient, and is based on the determination, exercising reasonable care, that the person is not suffering from an emergency medical condition or a determination, exercising reasonable care, that the hospital does not have the service capability or is at service capacity to render those services. (h) A hospital may request and collect insurance information and other financial information from a patient, in accordance with federal law, if emergency services and care are not delayed. No hospital to which another hospital is transferring a person in need of emergency services and care may require the transferring hospital or any person or entity to guarantee payment for the person as a condition of receiving the transfer. In addition, a hospital may not require any contractual agreement, any type of preplanned transfer agreement, or any other arrangement to be made prior to or at the time of transfer as a condition of receiving an individual patient being transferred. However, the patient or the patient's legally responsible relative or guardian shall execute an agreement to pay for emergency services or care or otherwise supply insurance or credit information promptly after the services and care are rendered. (i) Each hospital offering emergency services shall post, in a conspicuous place in the emergency service area, a sign clearly stating a patient's right to emergency services and care and the service capability of the hospital. (j) If a hospital subject to the provisions of this chapter does not maintain an emergency department, its employees shall nevertheless exercise reasonable care to determine whether an emergency medical condition exists and shall direct the persons seeking emergency care to a nearby facility which can render the needed services and shall assist the persons seeking emergency care in obtaining the services, including transportation services, in every way reasonable under the circumstances. (k)1. Emergency medical services providers may not condition the prehospital transport of any person in need of emergency services and care on the person's ability to pay. Nor may emergency medical services providers condition a transfer on the person's ability to pay when the transfer is made necessary because the patient is in immediate need of treatment for an emergency medical condition for which the hospital lacks service capability or when the hospital is at service capacity. However, the patient or the patient's legally responsible relative or guardian shall execute an agreement to pay for the transport or otherwise supply insurance or credit information promptly after the transport is rendered. 2. A hospital may enter into an agreement with an emergency medical services provider for purposes of meeting its service capability requirements, and appropriate compensation and other reasonable conditions may be negotiated for these services. (1) Hospital personne! may withhoid or withdraw cardiopulmonary resuscitation if presented with an order not to resuscitate executed pursuant to s. 401.45. Facility staff and facilities shall not be subject to criminal prosecution or civil liability, nor be considered to have engaged in negligent or unprofessional conduct, for withholding or withdrawing cardiopulmonary resuscitation pursuant to such an order. The absence of an order not to resuscitate executed pursuant to s. 401.45 does not preclude a physician from withholding or withdrawing cardiopulmonary resuscitation as otherwise permitted by law. (4) RECORDS OF TRANSFERS, REPORT OF VIOLATIONS.— (a)1. Each hospital shall maintain records of each transfer made or received for a period of 5 or affected by, the person's race, ethnicity, religion, national origin, citizenship, age, sex, preexisting medical condition, physical or mental handicap, insurance status, economic status, or ability to pay for medical services, except to the extent that a circumstance such as age, sex, preexisting medical condition, or physical or mental handicap is medically significant to the provision of appropriate medical care to the patient. (g) Neither the hospital nor its employees, nor any physician, dentist, or pociatric physician shall be liable in any action arising out of a refusal to render emergency services or care if the refusal is made after screening, examining, and evaluating the patient, and is based on the determination, exercising reasonable care, that the person is not suffering from an emergency medical condition or a determination, exercising reasonable care, that the hospital does not have the service capability or is at service capacity to render those services. (h) A hospital may request and collect insurance information and other financial information from a patient, in accordance with federal law, if emergency services and care are not delayed. No hospital to which another hospital is transferring a person in need of emergency services and care may require the transferring hospital or any person or entity to guarantee payment for the person as a condition of receiving the transfer. In addition, a hospital may not require any contractual agreement, any type of preplanned transfer agreement, or any other arrangement to be made prior to or at the time of transfer as a condition of receiving an individual patient being transferred. However, the patient or the patient's legally responsible relative or guardian shall execute an agreement to pay for emergency services or care or otherwise supply insurance or credit information promptly after the services and care are rendered. (i) Each hospital offering emergency services shall post, in a conspicuous place in the emergency service area, a sign clearly stating a patient's right to emergency services and care and the service capability of the hospital. (j) If a hospital subject to the provisions of this chapter does not maintain an emergency department, its employees shall nevertheless exercise reasonable care to deterrnine whether an emergency medical condition exists and shall direct the persons seeking emergency care to a nearby facility which can render the needed services and shall assist the persons seeking emergency care in obtaining the services, including transportation services, in every way reasonable under the circumstances. (k)1. Emergency medical services providers may not condition the prehospital transport of any person in need of emergency services and care on the person's ability to pay. Nor may emergency medical services providers condition a transfer on the person's ability to pay when the transfer is made necessary because the patient is in immediate need of treatment for an emergency medical condition for which the hospital lacks service capability or when the hospital is at service capacity. However, the patient or the patient's legally responsible relative or guardian shali execute an agreement to pay for the transport or otherwise supply insurance or credit information promptly after the transport is rendered. 2. A hospital may enter into an agreement with an emergency medical services provider for purposes of meeting its service capability requirements, and appropriate compensation and other reasonable conditions may be negotiated for these services. (1) Hospital personnel may withhold or withdraw cardiopulmonary resuscitation if presented with an order not to resuscitate executed pursuant to s. 401.45. Facility staff and facilities shall not be subject to criminal prosecution or civil liability, nor be considered to have engaged in negligent or unprofessional conduct, for withholding or withdrawing cardiopulmonary resuscitation pursuant to such an order. The absence of an order not to resuscitate executed pursuant to s. 401.45 does not preclude a physician from withholding or withdrawing cardiopulmonary resuscitation as otherwise permitted by law. (4) RECORDS OF TRANSFERS; REPORT OF VIOLATIONS.— (a)1. Each hospital shall maintain records of each transfer made or received for a period of 5 years. These records of transfers shall be included in a transfer log, as well as in the permanent medical record of any patient being transferred or received. 2. Each hospital shall maintain records of all patients who request emergency care and services, or persons on whose behalf emergency care and services are requested, for a period of 5 years. These records shal! be included in a log, as well as in the permanent medical record of any patient or person for whom emergency services and care is requested. (b) Any hospital employee, physician, other licensed emergency room health care personnel, or certified prehospital emergency personnel who knows of an apparent violation of this section or the rules adopted under this section shall report the apparent violation to the agency within 30 days following its occurrence. (c) A hospital, government agency, or person shall not retaliate against, penalize, institute a civil action against, or recover monetary relief from, or otherwise cause any injury to: 1. Aphysician or other person for reporting in good faith an apparent violation of this section or the rules adopted under this section to the agency, hospital, medical staff, or any other interested party or government agency; 2. Aphysician who refuses to transfer a patient if the physician determines, within reasonable medical probability, that the transfer or delay caused by the transfer will create a medical hazard to the patient; or 3. A physician who effectuates the transfer of a patient if the physician determines, within a reasonable medical probability, that failing to transfer the patient will create a medical hazard to the patient. (5) PENALTIES. — (a) The agency may deny, revoke, or suspend a license or impose an administrative fine, not to exceed $10,000 per violation, for the violation of any provision of this section or rules adopted under this section. (b) Any person who suffers personal harm as a result of a violation of this section or the rules adopted hereunder may recover, in a civil action against the responsible hospital administrative or medical staff or personnel, damages, reasonable attorney's fees, and other appropriate relief. However, this paragraph shall not be construed to create a cause of action beyond that recognized by this section and rules adopted under this section as they existed on April 1, 1992. (c) Any hospital administrative or medical staff or personnel who knowingly or intentionally violates any provision of this section commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. (d)1. Any hospital, or any physician licensed under chapter 458 or chapter 459, who suffers a financial loss as a direct result of a violation by a physician or a hospital of a requirement of this section may, in a civil action against the physician or the hospital, obtain damages for financial loss of charges and such equitable relief as is appropriate, including reasonable attorney's fees and costs. 2. If the defendant prevails in an action brought by the hospital or physician pursuant to this paragraph, the court may award reasonable attorney's fees and costs to the defendant. (e) A physician licensed under chapter 458 or chapter 459 who negligently or knowingly violates any requirement of this section relating to the provision of emergency services and care shall be deemed in violation of the provisions of such chapters for any of the following violations: 1. Failure or refusal to respond within a reasonable time after notification when on call. 2. Failure or refusal to sign a certificate of transfer as required by this section. 3. Signing a certificate of transfer stating that the medical benefits to be reasonably expected years. These records of transfers shall be included in a transfer log, as well as in the permanent medical record of any patient being transferred or received. 2. Each hospital shall maintain records of all patients who request emergency care and services, or persons on whose behalf emergency care and services are requested, for a period of 5 years. These records shall be included in a log, as well as in the permanent medical record of any patient or person for whom emergency services and care is requested. (b) Any hospital employee, physician, other licensed emergency room health care personnel, or certified prehospital emergency personnel who knows of an apparent violation of this section or the rules adopted under this section shall report the apparent violation to the agency within 30 days following its occurrence. (c) A hospital, government agency, or person shall not retaliate against, penalize, institute a civil action against, or recover monetary relief from, or otherwise cause any injury to: 1. Aphysician or other person for reporting in good faith an apparent violation of this section or the rules adopted under this section to the agency, hospital, medical staff, or any other interested party or government agency; 2. A physician who refuses to transfer a patient if the physician determines, within reasonable medical probability, that the transfer or delay caused by the transfer will create a medical hazard to the patient; or 3. A physician who effectuates the transfer of a patient if the physician determines, within a reasonable medical probability, that failing to transfer the patient will create a medical hazard to the patient. (5) PENALTIES — (a) The agency may deny, revoke, or suspend a license or impose an administrative fine, not to exceed $10,000 per violation, for the violation of any provision of this section or rules adopted under this section. (b) Any person who suffers personal harm as a result of a violation of this section or the rules adopted hereunder may recover, in a civil action against the responsible hospital administrative or medical staff or personnel, damages, reasonable attorney's fees, and other appropriate relief. However, this paragraph shall not be construed to create a cause of action beyond that recognized by this section and rules adopted under this section as they existed on April 1, 1992. (c) Any hospital administrative or medical staff or personnel who knowingly or intentionally violates any provision of this section commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. (d)1. Any hospital, or any physician licensed under chapter 458 or chapter 459, who suffers a financial loss as a direct result of a violation by a physician or a hospital of a requirement of this section may, in a civil action against the physician or the hospital, obtain damages for financial loss of charges and such equitable relief as is appropriate, including reasonable attorney's fees and costs. 2. If the defendant prevails in an action brought by the hospital or physician pursuant to this paragraph, the court may award reasonable attorney's fees and costs to the defendant. (e) A physician licensed under chapter 458 or chapter 459 who negligently or knowingly violates any requirement of this section relating to the provision of emergency services and care shall be deemed in violation of the provisions of such chapters for any of the following violations: 1. Failure or refusal to respond within a reasonable time after notification when on call. 2. Failure or refusal to sign a certificate of transfer as required by this section. 3. Signing a certificate of transfer stating that the medical benefits to be reasonably expected years. These records of transfers shall be included in a transfer log, as well as in the permanent medical record of any patient being transferred or received. 2. Each hospital shall maintain records of all patients who request emergency care and services, or persons on whose behalf emergency care and services are requested, for a period of 5 years. These records shall be included in a log, as well as in the permanent medical record of any patient or person for whom emergency services and care is requested. (b) Any hospital employee, physician, other licensed emergency room health care personnel, or certified prehospital emergency personnel who knows of an apparent violation of this section or the rules adopted under this section shall report the apparent violation to the agency within 30 days following its occurrence. (c) A hospital, government agency, or person shall not retaliate against, penalize, institute a civil action against, or recover monetary relief from, or otherwise cause any injury to: 1. Aphysician or other person for reporting in good faith an apparent violation of this section or the rules adopted under this section to the agency, hospital, medical staff, or any other interested party or government agency; 2. Aphysician who refuses to transfer a patient if the physician determines, within reasonable medical probability, that the transfer or delay caused by the transfer will create a medical hazard to the patient; or 3. A physician who effectuates the transfer of a patient if the physician determines, within a reasonable medical probability, that failing to transfer the patient will create a medical hazard to the patient. (5) PENALTIES.— (a) The agency may deny, revoke, or suspend a license or impose an administrative fine, not to exceed $10,000 per violation, for the violation of any provision of this section or rules adopted under this section. (b) Any person who suffers personal harm as a result of a violation of this section or the rules adopted hereunder may recover, in a civil action against the responsible hospital administrative or medical staff or personnel, damages, reasonable attorney's fees, and other appropriate relief. However, this paragraph shall not be construed to create a cause of action beyond that recognized by this section and rules adopted under this section as they existed on April 1, 1992. (c) Any hospital administrative or medical staff or personnel who knowingly or intentionally violates any provision of this section commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. (d)1. Any hospital, or any physician licensed under chapter 458 or chapter 459, who suffers a financial loss as a direct result of a violation by a physician or a hospital of a requirement of this section may, in a civil action against the physician or the hospital, obtain damages for financial loss of charges and such equitable relief as is appropriate, including reasonable attorney's fees and costs. 2. If the defendant prevails in an action brought by the hospital or physician pursuant to this paragraph, the court may award reasonable attorney's fees and costs to the defendant. (e) A physician licensed under chapter 458 or chapter 459 who negligently or knowingly violates any requirement of this section relating to the provision of emergency services and care shall be deemed in violation of the provisions of such chapters for any of the following violations: 1. Failure or refusal to respond within a reasonable time after notification when on call. 2. Failure or refusal to sign a certificate of transfer as required by this section. 3. Signing a certificate of transfer stating that the medical benefits to be reasonably expected from a transfer to another facility outweigh the risks associated with the transfer, when the physician knew or should have known that the benefits did not outweigh the risks as required by this section. 4. Misrepresentation of an individual's condition or other information when requesting a transfer. Any fine collected for a violation of this section, including any fine collected from a physician licensed under chapter 458 or chapter 459, shall be deposited into the Public Medical Assistance Trust Fund. (f) In determining whether a licensee is deemed in violation of this section and in assessing any penalties for violation, the agency shall consider, and the licensee may offer as an affirmative defense or in mitigation, whether the licensee has established that the alleged violation arose from the unanticipated changes in service capability or other factors beyond the licensee's control. (6) RIGHTS OF PERSONS BEING TREATED.—A hospital providing emergency services and care to a person who is being involuntarily examined under the provisions of s. 394.463 shall adhere to the rights of patients specified in part | of chapter 394 and the involuntary examination procedures provided in s. 394.463, regardless of whether the hospital, or any part thereof, is designated as a receiving or treatment facility under part | of chapter 394 and regardless of whether the person is admitted to the hospital. History.—s. 6, ch. 88-186; s. 1, ch. 89-296; s. 68, ch. 91-224; s. 4, ch. 91-249; ss. 24, 25, 98, ch. 92-289; s. 30, ch. 96-169; s. 2, ch. 96-199; s. 10, ch. 96-223; s. 182, ch. 98-166; s. 2, ch. 99-331; s. 1, ch. 2000-295. Note.—Former s. 395.0142. 395.1046 Compiaint investigation procedures.— (1) The agency shall investigate any complaint against a hospital for any violation of s. 395.1041 that the agency reasonably believes to be legally sufficient. A complaint is legally sufficient if it contains ultimate facts which show that a violation of this chapter, or any rule adopted under this chapter by the agency, has occurred. The agency may investigate, or continue to investigate, and may take appropriate final action on a complaint, even though the original complainant withdraws his or her complaint or otherwise indicates his or her desire not to cause it to be investigated to completion. When an investigation of any person or facility is undertaken, the agency shall notify such person in writing of the investigation and inform the person or facility in writing of the substance, the facts which show that a violation has occurred, and the source of any complaint filed against him or her. The agency may conduct an investigation without notification to any person if the act under investigation is a criminal offense. The agency shall have access to all records necessary for the investigation of the complaint. (2) The agency or its agent shall expeditiously investigate each complaint against a hospital for a violation of s. 395.1041. When its investigation is complete, the agency shall prepare an investigative report. The report shall contain the investigative findings and the recommendations of the agency concerning the existence of probable cause. (3) The complaint and all information obtained by the agency during an investigation conducted pursuant to this section are exempt from the provisions of s. 119.07(1) and s. 24(a), Art. | of the State Constitution until 10 days after probable cause has been found to exist by the agency, or until the person who is the subject of the investigation waives his or her privilege of confidentiality, whichever occurs first. In cases where the agency finds that the complaint is not legally sufficient or when the agency determines that no probable cause exists, all records pertaining thereto are confidential and exempt from the provisions of s. 119.07(1} and s. 24(a), Art. | of the State Constitution. However, the complaint and a summary of the agency's findings shall be available, although information therein identifying an individual shall not be disclosed. History.—s. 3, ch. 89-275; s. 4, ch. 89-283; s. 1, ch. 90-192; ss. 26, 98, ch. 92-289; s. 728, ch. 95-148; s. 2, ch.

Docket for Case No: 04-002452