New Florida Law Affects Healthcare Professionals Who Have a Criminal Past

I. Present Situation

Current law requires certain health care employees to be screened for a history of criminal offenses. Similarly, where one works within the health care field, for example hospitals, nursing homes, and facilities which accept Medicaid they are required to have background checks. 

If a potential employee is found to have committed certain “disqualifying offenses” they may not work in Florida in the field of health care, unless they obtain what is known as an “exemption from disqualification.”   Depending upon the situation if you are applying for a job at a facility regulated and licensed by Florida’s Agency for Health Care Administration (AHCA), you may need to apply to AHCA for the exemption.  In some cases, you have to apply to your professional licensing Board at Department of Health (DOH).  In other instances, a professional has to seek an exemption from both AHCA and the DOH Board.  The system is complicated and often confusing to those unfamiliar with Florida’s health care regulations.

We have written extensively on the subject of background checks in health care and obtaining an exemption from disqualification.  See prior blog:  https://www.floridahealth careattorney.com/2022/07/background-screening-exemption-applications-with-ahca-and-doh/

For example, under Section 458.311(1)(g), Florida Statutes, physicians must undergo background screening as a condition of initial licensure; the same is true for nurses under Section 414.018, Florida Statutes.

Individuals are disqualified from certain employment and licensure if they:

• Have been arrested for and are awaiting final disposition for a “disqualifying offense” or crime;
• Have been found guilty regardless of adjudication;
• Have entered a plea of nolo contendere or guilty;
• Have been adjudicated delinquent

Our law firm has been representing health care professionals, facility managers, investors, and others for years by helping them navigate the exemption process.   Those individuals who know they have a criminal history must first gather information relating to the actual crime or criminal law charged; the jurisdiction of the arrest and court disposition; and completion of any sentence, fine or probation. Our Firm helps clients with all of this process.

II. What crimes are currently disqualifying?

Under current law the following are disqualifying offenses:

• Section 393.135, F.S., relating to sexual misconduct with certain developmentally disabled clients and reporting of such sexual misconduct.
• Section 394.4593, F.S., relating to sexual misconduct with certain mental health patients and reporting of such sexual misconduct.
• Section 415.111, F.S., relating to adult abuse, neglect, or exploitation of aged persons or disabled adults.
• Section 777.04, F.S., relating to attempts, solicitation, and conspiracy to commit an offense listed in this subsection.
• Section 782.04, F.S., relating to murder.
• Section 782.07, F.S., relating to manslaughter, aggravated manslaughter of an elderly person or disabled adult, or aggravated manslaughter of a child.
• Section 782.071, F.S., relating to vehicular homicide.
• Section 782.09, F.S., relating to killing of an unborn child by injury to the mother.

• Chapter 784, F.S., relating to assault, battery, and culpable negligence, if the offense was a felony.
• Section 784.011, F.S., relating to assault, if the victim of the offense was a minor.
• Section 784.03, F.S., relating to battery, if the victim of the offense was a minor.
• Section 787.01, F.S., relating to kidnapping.
• Section 787.02, F.S., relating to false imprisonment.
• Section 787.025, F.S., relating to luring or enticing a child.
• Section 787.04(2), F.S., relating to taking, enticing, or removing a child beyond the state limits with criminal intent pending custody proceedings.
• Section 787.04(3), F.S., relating to carrying a child beyond the state lines with criminal intent to avoid producing a child at a custody hearing or delivering the child to the designated person.
• Section 790.115(1), F.S., relating to exhibiting firearms or weapons within 1,000 feet of a school.
• Section 790.115(2)(b), F.S., relating to possessing an electric weapon or device, destructive device, or other weapon on school property.
• Section 794.011, F.S., relating to sexual battery.
• Former s. 794.041, F.S., relating to prohibited acts of persons in familial or custodial authority.
• Section 794.05, F.S., relating to unlawful sexual activity with certain minors.
• Chapter 796, F.S., relating to prostitution.
• Section 798.02, F.S., relating to lewd and lascivious behavior.
• Chapter 800, F.S., relating to lewdness and indecent exposure.
• Section 806.01, F.S., relating to arson.
• Section 810.02, F.S., relating to burglary.
• Section 810.14, F.S., relating to voyeurism, if the offense is a felony.
• Section 810.145, F.S., relating to video voyeurism, if the offense is a felony.
• Chapter 812, F.S., relating to theft, robbery, and related crimes, if the offense is a felony.
• Section 817.563, F.S., relating to fraudulent sale of controlled substances, only if the offense was a felony.
• Section 825.102, F.S., relating to abuse, aggravated abuse, or neglect of an elderly person or disabled adult.
• Section 825.1025, F.S., relating to lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled adult.
• Section 825.103, F.S., relating to exploitation of an elderly person or disabled adult, if the offense was a felony.
• Section 826.04, F.S., relating to incest.
• Section 827.03, F.S., relating to child abuse, aggravated child abuse, or neglect of a child.
• Section 827.04, F.S., relating to contributing to the delinquency or dependency of a child.
• Former s. 827.05, F.S., relating to negligent treatment of children.
• Section 827.071, F.S., relating to sexual performance by a child.
• Section 843.01, F.S., relating to resisting arrest with violence.
• Section 843.025, F.S., relating to depriving a law enforcement, correctional, or correctional probation officer of means of protection or communication.
• Section 843.12, F.S., relating to aiding in an escape.
• Section 843.13, F.S., relating to aiding in the escape of juvenile inmates in correctional institutions.
• Chapter 847, F.S., relating to obscene literature.
• Section 874.05, F.S., relating to encouraging or recruiting another to join a criminal gang.
• Chapter 893, F.S., relating to drug abuse prevention and control, only if the offense was a felony or if any other person involved in the offense was a minor.
• Section 916.1075, F.S., relating to sexual misconduct with certain forensic clients and reporting of such sexual misconduct.
• Section 944.35(3), F.S., relating to inflicting cruel or inhuman treatment on an inmate resulting in great bodily harm.

• Section 944.40, F.S., relating to escape.
• Section 944.46, F.S., relating to harboring, concealing, or aiding an escaped prisoner.
• Section 944.47, F.S., relating to introduction of contraband into a correctional facility.
• Section 985.701, F.S., relating to sexual misconduct in juvenile justice programs.
• Section 985.711, F.S., relating to contraband introduced into detention facilities.

There may also be other provisions of law which prohibit employment.  This list is spelled out in the statute governing generally background screenings and exemptions.  Although these are Florida Statutes, the law does cite certain federal statutes and also has language that the above crimes are disqualifying for “similar violations” in other jurisdictions, presumably other states and countries.

III. There are certain crimes for which you cannot obtain an Exemption

There are certain crimes which render a person absolutely ineligible for an exemption from disqualification. Those individuals who are convicted or have pled to these offenses are not eligible for an exemption.

• A person considered a sexual predator, under section 775.21, Florida Statutes;
• A career offender, under section 775.261, Florida Statutes;
• A registered sexual offender under section 943.0435, Florida Statutes.

If you have been charged or sentenced under one or more of the above statutes in Florida, there is no way to obtain an exemption and work in Florida.   The Florida Legislature has seen fit to designate these three (3) laws as permanently disqualifying an individual from employment in health care. If you are facing an arrest or potential to be charged under one of these three statutes it would be wise to consult experienced attorneys concerning the impact this may have on your license.

IV. What is an Exemption?

An exemption allows an individual to be employed in a profession or workplace despite the disqualifying offense (i.e., the crime) in that person’s past. Current law includes an exemption process. To obtain an exemption from disqualification one must file a detailed application with the appropriate state agency in Florida. Among the many requirements along the path to getting an exemption are:

• Any court ordered fees or fines must have been paid;
• 3 years must have passed since the individual has completed all the terms of his/her sentence.

An application for exemption must have attached to it copies of the arrest report; letters of rehabilitation; court records showing that the criminal case is concluded; and evidence of rehabilitation. Once the application is submitted to the state agency it is reviewed by staff and then reviewed by the secretary of the agency and/or professional board depending upon the circumstances. If the exemption application is one to be submitted to the Agency for Health Care Administration (AHCA) it is first reviewed by AHCA’s Background Screening Unit (BSU) and then forwarded to the AHCA secretary for a decision. If the exemption is sought in relation to a health care professional’s license in most circumstances the exemption application is submitted to one’s professional board.

V. Recent Legislation Has Made Changes to the Law – House Bill 975  (CS/CS/HB 975)

During the 2024 Session of the Florida Legislature several important changes where made to the process as it relates to disqualifying offenses and getting an actual exemption from disqualification.   The Bill that passed and was signed by the Governor deals with many specifics too numerous to list here, but for the purposes of understanding some of the most basic changes that relate to obtaining an exemption, these are some major changes of interest:

A. Additional Crimes Added to List of Disqualifying Offenses

The new additions to the law add to the list of crimes that can disqualify you from employment.   In addition to those already in law and listed above, the following criminal offenses are added:

Section 39.205, F.S., relating to the failure to report child abuse, abandonment, or neglect;

 Section 414.39, F.S., relating to fraud, if the offense was a felony;

 Section 787.06, F.S., relating to human trafficking;

  Section 787.07, F.S., relating to human smuggling;

 Section 836.10, F.S., relating to written or electronic threats to kill, do bodily injury, or conduct a mass shooting or an act of terrorism;

 Section 859.01, F.S., relating to poisoning food or water; and

 Section 873.01, F.S., relating to the prohibition on the purchase or sale of human organs and tissue.

Section 831.311, F.S., relating to the unlawful sale, manufacture, alteration, delivery, uttering, or possession of counterfeit-resistant prescription blanks for controlled substances;

For those who are currently charged with a crime(s) it is prudent to discuss with your criminal lawyer what the exact crime is you are charged with, its statute number, and whether that specific crime is a disqualifying offense enumerated in the health care regulations and particularly in Chapter 435, Florida Statutes.  The attorneys in our law firm frequently are sought out for consultation by Florida criminal defense attorneys when they are negotiating a plea agreement with a prosecutor.  It’s important that the criminal defense attorney make all efforts not to plead his/her client to a crime for which the client is thereupon disqualified from working as a result.  Careful reading of the law and consultation with experienced health care attorneys is wise in these situations.

The lawyers at our law firm can advise your criminal defense attorney on strategies that may help avoid disqualification.

B. Period of Time That Must Pass After Sentence Is Completed Has Been Reduced to Two (2) Years

The new law reduces from three (3) to two (2) years the amount of time that must have passed since the completion of your sentence. People that have recently been arrested and have not completed their sentence, probation and other terms of their sentence or plea agreement used to have to wait three (3) years before submitting an application for exemption. In the past, if you submitted the application earlier than three years the state agency would reject it.

Under the new law, two (2) years must have passed since you completed all terms of the criminal sentence.

C. Additional Professionals Who Must Undergo Background Screening When Applying for An Initial Florida License

The new law requires additional health care professions licensed by DOH to undergo background screening as a requirement for initial licensure. The following professions will now be required to pass a background screening in order to be licensed:

• Acupuncturists;

• Anesthesiologist Assistants;

• Audiologists;

• Audiologist Assistants;

• Clinical Laboratory Personnel;

• Mental Health Professionals;69

• Registered Mental Health Profession Interns;70

• Dentists;

• Dentists seeking a limited health access license;

• Dental Hygienists;

• Dieticians;

• Electrologists;

• Genetic Counselors;

• Hearing Aid Specialists;

• Medical Physicists;

• Nursing Home Administrators;

• Occupational Therapists;

• Opticians;

• Optometrist;

• Pharmacists;

• Physical Therapists;

• Physical Therapist Assistants;

• Physician Assistants;

• Psychologists and School Psychologists;

• Radiology Technicians;

• Respiratory Therapists;

• Speech-Language Pathologists; and

• Speech-Language Pathology Assistants.

The new background screening requirement applies to applicants seeking initial licensure to practice any of these professions beginning July 1, 2025. Those licensed prior to July 1, 2025, must submit to such background screening upon their next licensure renewal that takes place on or after July 1, 2025.

The new law prohibits DOH from renewing the license of a health care practitioner after July 1, 2025, until they have complied with the background screening requirements.  Essentially, the requirements are as follows:

Prior to July 1, 2025 – Those already licensed in Florida must get a background check prior to renewal.

Beginning July 1, 2025 – Applicants for Initial Licensure must have background checks.

This will create a new burden on those already licensed as well as those seeking a Florida license. Health care professionals should seek the advice of a lawyer that is experienced in handling cases involving criminal background histories and disqualifying offenses.

VI. Conclusion

Florida has extremely tough laws that apply to persons with a criminal past. With the advent of databases and new technology government can collect, store, and retrieve one’s criminal history and background. Being up to date on new laws is essential to protecting your career and future.