Florida Senate - 2012                                     SB 718
       
       
       
       By Senator Bennett
       
       
       
       
       21-00180A-12                                           2012718__
    1                        A bill to be entitled                      
    2         An act relating to the health care; amending s.
    3         463.002, F.S.; conforming provisions to changes made
    4         by the act; amending s. 463.005, F.S.; authorizing the
    5         Board of Optometry to adopt rules for the
    6         administration and prescription of ocular
    7         pharmaceutical agents rather than topical ocular
    8         pharmaceutical agents; amending s. 463.0055, F.S.;
    9         authorizing certified optometrists to administer and
   10         prescribe ocular pharmaceutical agents under certain
   11         circumstances; revising qualifications of certain
   12         members of the formulary committee; amending ss.
   13         463.0057 and 463.006, F.S.; conforming provisions to
   14         changes made by the act; amending s. 483.035, F.S.,
   15         relating to licensure and regulation of clinical
   16         laboratories operated by practitioners for exclusive
   17         use; providing applicability to clinical laboratories
   18         operated by practitioners licensed to practice
   19         optometry; amending s. 483.041, F.S.; revising the
   20         definition of the term “licensed practitioner” to
   21         include a practitioner licensed under ch. 463, F.S.;
   22         amending s. 483.181, F.S.; requiring clinical
   23         laboratories to accept human specimens submitted by
   24         practitioners licensed to practice under ch. 463,
   25         F.S.; amending s. 766.102, F.S.; revising the burden
   26         of proof that a claimant must demonstrate in order to
   27         prove medical negligence by a health care provider or
   28         an emergency health care provider; amending s. 893.02,
   29         F.S.; revising the definition of the term
   30         “practitioner” to include certified optometrists for
   31         purposes of the Florida Comprehensive Drug Abuse
   32         Prevention and Control Act; amending s. 893.05, F.S.;
   33         prohibiting certified optometrists from administering
   34         and prescribing certain controlled substances;
   35         providing effective dates.
   36  
   37  Be It Enacted by the Legislature of the State of Florida:
   38  
   39         Section 1. Subsections (3), (4), and (5) of section
   40  463.002, Florida Statutes, are amended to read:
   41         463.002 Definitions.—As used in this chapter, the term:
   42         (3)(a) “Licensed practitioner” means a person who is a
   43  primary health care provider licensed to engage in the practice
   44  of optometry under the authority of this chapter.
   45         (b) A licensed practitioner who is not a certified
   46  optometrist shall be required to display at her or his place of
   47  practice a sign which states, “I am a Licensed Practitioner, not
   48  a Certified Optometrist, and I am not able to prescribe topical
   49  ocular pharmaceutical agents.”
   50         (c) All practitioners initially licensed after July 1,
   51  1993, must be certified optometrists.
   52         (4) “Certified optometrist” means a licensed practitioner
   53  authorized by the board to administer and prescribe topical
   54  ocular pharmaceutical agents.
   55         (5) “Optometry” means the diagnosis of conditions of the
   56  human eye and its appendages; the employment of any objective or
   57  subjective means or methods, including the administration of
   58  topical ocular pharmaceutical agents, for the purpose of
   59  determining the refractive powers of the human eyes, or any
   60  visual, muscular, neurological, or anatomic anomalies of the
   61  human eyes and their appendages; and the prescribing and
   62  employment of lenses, prisms, frames, mountings, contact lenses,
   63  orthoptic exercises, light frequencies, and any other means or
   64  methods, including topical ocular pharmaceutical agents, for the
   65  correction, remedy, or relief of any insufficiencies or abnormal
   66  conditions of the human eyes and their appendages.
   67         Section 2. Paragraph (g) of subsection (1) of section
   68  463.005, Florida Statutes, is amended to read:
   69         463.005 Authority of the board.—
   70         (1) The Board of Optometry has authority to adopt rules
   71  pursuant to ss. 120.536(1) and 120.54 to implement the
   72  provisions of this chapter conferring duties upon it. Such rules
   73  shall include, but not be limited to, rules relating to:
   74         (g) Administration and prescription of topical ocular
   75  pharmaceutical agents.
   76         Section 3. Section 463.0055, Florida Statutes, is amended
   77  to read:
   78         463.0055 Administration and prescription of topical ocular
   79  pharmaceutical agents; committee.—
   80         (1) Certified optometrists may administer and prescribe
   81  topical ocular pharmaceutical agents as provided in this section
   82  for the diagnosis and treatment of ocular conditions of the
   83  human eye and its appendages without the use of surgery or other
   84  invasive techniques. However, a licensed practitioner who is not
   85  certified may use topically applied anesthetics solely for the
   86  purpose of glaucoma examinations, but is otherwise prohibited
   87  from administering or prescribing topical ocular pharmaceutical
   88  agents.
   89         (2)(a) There is hereby created a committee composed of two
   90  certified optometrists licensed pursuant to this chapter,
   91  appointed by the Board of Optometry, two board-certified
   92  ophthalmologists licensed pursuant to chapter 458 or chapter
   93  459, appointed by the Board of Medicine, and one additional
   94  person with a doctorate degree in pharmacology who is not
   95  licensed pursuant to chapter 458, chapter 459, or this chapter,
   96  appointed by the State Surgeon General. The committee shall
   97  review requests for additions to, deletions from, or
   98  modifications of a formulary of topical ocular pharmaceutical
   99  agents for administration and prescription by certified
  100  optometrists and shall provide to the board advisory opinions
  101  and recommendations on such requests. The formulary shall
  102  consist of those topical ocular pharmaceutical agents which the
  103  certified optometrist is qualified to use in the practice of
  104  optometry. The board shall establish, add to, delete from, or
  105  modify the formulary by rule. Notwithstanding any provision of
  106  chapter 120 to the contrary, the formulary rule shall become
  107  effective 60 days following from the date it is filed with the
  108  Secretary of State.
  109         (b) The formulary may be added to, deleted from, or
  110  modified according to the procedure described in paragraph (a).
  111  Any person who requests an addition, deletion, or modification
  112  of an authorized topical ocular pharmaceutical agent shall have
  113  the burden of proof to show cause why such addition, deletion,
  114  or modification should be made.
  115         (c) The State Surgeon General shall have standing to
  116  challenge any rule or proposed rule of the board pursuant to s.
  117  120.56. In addition to challenges for any invalid exercise of
  118  delegated legislative authority, the administrative law judge,
  119  upon such a challenge by the State Surgeon General, may declare
  120  all or part of a rule or proposed rule invalid if it:
  121         1. Does not protect the public from any significant and
  122  discernible harm or damages;
  123         2. Unreasonably restricts competition or the availability
  124  of professional services in the state or in a significant part
  125  of the state; or
  126         3. Unnecessarily increases the cost of professional
  127  services without a corresponding or equivalent public benefit.
  128  
  129  However, there shall not be created a presumption of the
  130  existence of any of the conditions cited in this subsection if
  131  in the event that the rule or proposed rule is challenged.
  132         (d) Upon adoption of the formulary required by this
  133  section, and upon each addition, deletion, or modification to
  134  the formulary, the board shall mail a copy of the amended
  135  formulary to each certified optometrist and to each pharmacy
  136  licensed by the state.
  137         (3) A certified optometrist shall be issued a prescriber
  138  number by the board. Any prescription written by a certified
  139  optometrist for a topical ocular pharmaceutical agent pursuant
  140  to this section shall have the prescriber number printed
  141  thereon.
  142         Section 4. Subsection (3) of section 463.0057, Florida
  143  Statutes, is amended to read:
  144         463.0057 Optometric faculty certificate.—
  145         (3) The holder of a faculty certificate may engage in the
  146  practice of optometry as permitted by this section, but may not
  147  administer or prescribe topical ocular pharmaceutical agents
  148  unless the certificateholder has satisfied the requirements of
  149  s. 463.006(1)(b)4. and 5.
  150         Section 5. Subsections (2) and (3) of section 463.006,
  151  Florida Statutes, are amended to read:
  152         463.006 Licensure and certification by examination.—
  153         (2) The examination shall consist of the appropriate
  154  subjects, including applicable state laws and rules and general
  155  and ocular pharmacology with emphasis on the use topical
  156  application and side effects of ocular pharmaceutical agents.
  157  The board may by rule substitute a national examination as part
  158  or all of the examination and may by rule offer a practical
  159  examination in addition to the written examination.
  160         (3) Each applicant who successfully passes the examination
  161  and otherwise meets the requirements of this chapter is entitled
  162  to be licensed as a practitioner and to be certified to
  163  administer and prescribe topical ocular pharmaceutical agents in
  164  the diagnosis and treatment of ocular conditions.
  165         Section 6. Subsection (1) of section 483.035, Florida
  166  Statutes, is amended to read:
  167         483.035 Clinical laboratories operated by practitioners for
  168  exclusive use; licensure and regulation.—
  169         (1) A clinical laboratory operated by one or more
  170  practitioners licensed under chapter 458, chapter 459, chapter
  171  460, chapter 461, chapter 462, chapter 463, or chapter 466,
  172  exclusively in connection with the diagnosis and treatment of
  173  their own patients, must be licensed under this part and must
  174  comply with the provisions of this part, except that the agency
  175  shall adopt rules for staffing, for personnel, including
  176  education and training of personnel, for proficiency testing,
  177  and for construction standards relating to the licensure and
  178  operation of the laboratory based upon and not exceeding the
  179  same standards contained in the federal Clinical Laboratory
  180  Improvement Amendments of 1988 and the federal regulations
  181  adopted thereunder.
  182         Section 7. Subsection (7) of section 483.041, Florida
  183  Statutes, is amended to read:
  184         483.041 Definitions.—As used in this part, the term:
  185         (7) “Licensed practitioner” means a physician licensed
  186  under chapter 458, chapter 459, chapter 460, or chapter 461, or
  187  chapter 463; a dentist licensed under chapter 466; a person
  188  licensed under chapter 462; or an advanced registered nurse
  189  practitioner licensed under part I of chapter 464; or a duly
  190  licensed practitioner from another state licensed under similar
  191  statutes who orders examinations on materials or specimens for
  192  nonresidents of the State of Florida, but who reside in the same
  193  state as the requesting licensed practitioner.
  194         Section 8. Subsection (5) of section 483.181, Florida
  195  Statutes, is amended to read:
  196         483.181 Acceptance, collection, identification, and
  197  examination of specimens.—
  198         (5) A clinical laboratory licensed under this part must
  199  accept a human specimen submitted for examination by a
  200  practitioner licensed under chapter 458, chapter 459, chapter
  201  460, chapter 461, chapter 462, chapter 463, s. 464.012, or
  202  chapter 466, if the specimen and test are the type performed by
  203  the clinical laboratory. A clinical laboratory may only refuse a
  204  specimen based upon a history of nonpayment for services by the
  205  practitioner. A clinical laboratory shall not charge different
  206  prices for tests based upon the chapter under which a
  207  practitioner submitting a specimen for testing is licensed.
  208         Section 9. Effective October 1, 2012, for causes of action
  209  accruing on or after that date, subsection (1) of section
  210  766.102, Florida Statutes, is amended to read:
  211         766.102 Medical negligence; standards of recovery; expert
  212  witness.—
  213         (1) In any action for recovery of damages based on the
  214  death or personal injury of any person in which it is alleged
  215  that such death or injury resulted from the negligence of the
  216  following persons:
  217         (a) A health care provider as defined in s. 766.202(4); or
  218         (b) An emergency health care provider, which includes a
  219  person or an entity that provides services according to
  220  obligations imposed by s. 395.1041 or s. 401.45, but does not
  221  include a person or entity that is otherwise covered under this
  222  section,
  223  
  224  the claimant has shall have the burden of proving by clear and
  225  convincing the greater weight of evidence that the alleged
  226  actions of the health care provider or emergency health care
  227  provider represented a breach of the prevailing professional
  228  standard of care for that health care provider or emergency
  229  health care provider. The prevailing professional standard of
  230  care for a given health care provider or emergency health care
  231  provider is the shall be that level of care, skill, and
  232  treatment which, in light of all relevant surrounding
  233  circumstances, is recognized as acceptable and appropriate by
  234  reasonably prudent similar health care providers or emergency
  235  health care providers.
  236         Section 10. Subsection (21) of section 893.02, Florida
  237  Statutes, is amended to read:
  238         893.02 Definitions.—The following words and phrases as used
  239  in this chapter shall have the following meanings, unless the
  240  context otherwise requires:
  241         (21) “Practitioner” means a physician licensed pursuant to
  242  chapter 458, a dentist licensed pursuant to chapter 466, a
  243  veterinarian licensed pursuant to chapter 474, an osteopathic
  244  physician licensed pursuant to chapter 459, a naturopath
  245  licensed pursuant to chapter 462, a certified optometrist
  246  licensed pursuant to chapter 463 to administer and prescribe
  247  ocular pharmaceutical agents, or a podiatric physician licensed
  248  pursuant to chapter 461, provided such practitioner holds a
  249  valid federal controlled substance registry number.
  250         Section 11. Subsection (1) of section 893.05, Florida
  251  Statutes, is amended to read:
  252         893.05 Practitioners and persons administering controlled
  253  substances in their absence.—
  254         (1) A practitioner, in good faith and in the course of his
  255  or her professional practice only, may prescribe, administer,
  256  dispense, mix, or otherwise prepare a controlled substance, or
  257  the practitioner may cause the same to be administered by a
  258  licensed nurse or an intern practitioner under his or her
  259  direction and supervision only, except that an optometrist
  260  certified pursuant to chapter 463 to administer and prescribe
  261  ocular pharmaceutical agents may not administer or prescribe any
  262  controlled substance listed on Schedule I or Schedule II of s.
  263  893.03. A veterinarian may so prescribe, administer, dispense,
  264  mix, or prepare a controlled substance for use on animals only,
  265  and may cause it to be administered by an assistant or orderly
  266  under the veterinarian’s direction and supervision only.
  267         Section 12. Except as otherwise expressly provided in this
  268  act, this act shall take effect July 1, 2012.