ENROLLED
       2013 Legislature                                   CS for SB 248
       
       
       
       
       
       
                                                              2013248er
    1  
    2         An act relating to treatment programs for impaired
    3         licensees and applicants; amending s. 456.076, F.S.;
    4         exempting an entity retained by the Department of
    5         Health as an impaired practitioner consultant from
    6         certain licensure requirements; authorizing impaired
    7         practitioner consultants to contract with schools or
    8         programs to provide services to impaired students who
    9         are enrolled for the purpose of preparing for
   10         licensure as a specified health care practitioner or
   11         as a veterinarian; limiting the liability of those
   12         schools or programs when they refer a student to an
   13         impaired practitioner consultant; authorizing each
   14         board and profession within the division to delegate
   15         to its chair or other designee the authority to
   16         determine that an applicant for licensure under its
   17         jurisdiction may be impaired before certifying or
   18         declining to certify an application for licensure;
   19         authorizing the chair or other designee to refer the
   20         applicant to the consultant for an evaluation before
   21         the board certifies or declines to certify the
   22         applicant’s application to the department; tolling the
   23         department’s deadline for approving or denying the
   24         application until the evaluation is completed and the
   25         result of the evaluation and recommendation by the
   26         consultant is communicated to the board by the
   27         consultant if the applicant agrees to be evaluated by
   28         the consultant; requiring the board to certify or
   29         decline to certify the applicant’s application to the
   30         department notwithstanding the lack of an evaluation
   31         and recommendation by the consultant if the applicant
   32         declines to be evaluated by the consultant; providing
   33         that the impaired practitioner consultant is the
   34         official custodian of records relating to the referral
   35         of the licensee or applicant to the consultant and any
   36         other interaction between them; clarifying the
   37         circumstances under which an impaired practitioner
   38         consultant may disclose certain information concerning
   39         an impaired licensee or applicant; authorizing the
   40         Department of Health and others that contract with an
   41         impaired practitioner consultant to have
   42         administrative control over the consultant to the
   43         extent necessary to receive disclosures allowed under
   44         federal law; authorizing an impaired licensee to
   45         obtain confidential information from the department
   46         regarding a pending disciplinary proceeding; amending
   47         ss. 458.331 and 459.015, F.S.; conforming cross
   48         references; creating s. 468.315, F.S.; providing that
   49         radiological personnel are subject to a treatment
   50         program for impaired licensees; providing an effective
   51         date.
   52  
   53  Be It Enacted by the Legislature of the State of Florida:
   54  
   55         Section 1. Section 456.076, Florida Statutes, is amended to
   56  read:
   57         456.076 Treatment programs for impaired practitioners.—
   58         (1) For professions that do not have impaired practitioner
   59  programs provided for in their practice acts, the department
   60  shall, by rule, designate approved impaired practitioner
   61  programs under this section. The department may adopt rules
   62  setting forth appropriate criteria for approval of treatment
   63  providers. The rules may specify the manner in which the
   64  consultant, retained as set forth in subsection (2), works with
   65  the department in intervention, requirements for evaluating and
   66  treating a professional, requirements for continued care of
   67  impaired professionals by approved treatment providers,
   68  continued monitoring by the consultant of the care provided by
   69  approved treatment providers regarding the professionals under
   70  their care, and requirements related to the consultant’s
   71  expulsion of professionals from the program.
   72         (2)(a) The department shall retain one or more impaired
   73  practitioner consultants who are each licensees. The consultant
   74  shall be a licensee under the jurisdiction of the Division of
   75  Medical Quality Assurance within the department and who must be:
   76         1. A practitioner or recovered practitioner licensed under
   77  chapter 458, chapter 459, or part I of chapter 464;, or
   78         2. An entity that employs: employing
   79         a. A medical director who must be a practitioner or
   80  recovered practitioner licensed under chapter 458 or, chapter
   81  459;, or
   82         b. An executive director who must be a registered nurse or
   83  a recovered registered nurse licensed under part I of chapter
   84  464.
   85         (b)An entity retained as an impaired practitioner
   86  consultant under this section which employs a medical director
   87  or an executive director is not required to be licensed as a
   88  substance abuse provider or mental health treatment provider
   89  under chapter 394, chapter 395, or chapter 397 for purposes of
   90  providing services under this program.
   91         (c)1. The consultant shall assist the probable cause panel
   92  and the department in carrying out the responsibilities of this
   93  section. This includes shall include working with department
   94  investigators to determine whether a practitioner is, in fact,
   95  impaired.
   96         2. The consultant may contract with a school or program to
   97  provide for services to a student be provided, for appropriate
   98  compensation, if requested by the school, for students enrolled
   99  for the purpose of preparing in schools for licensure as a
  100  health care practitioner as defined in this chapter or as a
  101  veterinarian under chapter 474 if the student is allegedly
  102  allopathic physicians or physician assistants under chapter 458,
  103  osteopathic physicians or physician assistants under chapter
  104  459, nurses under chapter 464, or pharmacists under chapter 465
  105  who are alleged to be impaired as a result of the misuse or
  106  abuse of alcohol or drugs, or both, or due to a mental or
  107  physical condition. The department is not responsible under any
  108  circumstances for paying for the costs of care provided by
  109  approved treatment providers or a consultant, and the department
  110  is not responsible for paying the costs of consultants’ services
  111  provided for students.
  112         (d) A medical school accredited by the Liaison Committee on
  113  Medical Education or of the Commission on Osteopathic College
  114  Accreditation, or another other school providing for the
  115  education of students enrolled in preparation for licensure as a
  116  health care practitioner as defined in this chapter or a
  117  veterinarian under chapter 474 allopathic physicians under
  118  chapter 458 or osteopathic physicians under chapter 459, which
  119  is governed by accreditation standards requiring notice and the
  120  provision of due process procedures to students, is not liable
  121  in any civil action for referring a student to the consultant
  122  retained by the department or for disciplinary actions that
  123  adversely affect the status of a student when the disciplinary
  124  actions are instituted in reasonable reliance on the
  125  recommendations, reports, or conclusions provided by such
  126  consultant, if the school, in referring the student or taking
  127  disciplinary action, adheres to the due process procedures
  128  adopted by the applicable accreditation entities and if the
  129  school committed no intentional fraud in carrying out the
  130  provisions of this section.
  131         (3)Each board and profession within the Division of
  132  Medical Quality Assurance may delegate to its chair or other
  133  designee its authority to determine, before certifying or
  134  declining to certify an application for licensure to the
  135  department, that an applicant for licensure under its
  136  jurisdiction may be impaired as a result of the misuse or abuse
  137  of alcohol or drugs, or both, or due to a mental or physical
  138  condition that could affect the applicant’s ability to practice
  139  with skill and safety. Upon such determination, the chair or
  140  other designee may refer the applicant to the consultant for an
  141  evaluation before the board certifies or declines to certify his
  142  or her application to the department. If the applicant agrees to
  143  be evaluated by the consultant, the department’s deadline for
  144  approving or denying the application pursuant to s. 120.60(1) is
  145  tolled until the evaluation is completed and the result of the
  146  evaluation and recommendation by the consultant is communicated
  147  to the board by the consultant. If the applicant declines to be
  148  evaluated by the consultant, the board shall certify or decline
  149  to certify the applicant’s application to the department
  150  notwithstanding the lack of an evaluation and recommendation by
  151  the consultant.
  152         (4)(3)(a) Whenever the department receives a written or
  153  oral legally sufficient complaint alleging that a licensee under
  154  the jurisdiction of the Division of Medical Quality Assurance
  155  within the department is impaired as a result of the misuse or
  156  abuse of alcohol or drugs, or both, or due to a mental or
  157  physical condition which could affect the licensee’s ability to
  158  practice with skill and safety, and no complaint against the
  159  licensee other than impairment exists, the reporting of such
  160  information shall not constitute grounds for discipline pursuant
  161  to s. 456.072 or the corresponding grounds for discipline within
  162  the applicable practice act if the probable cause panel of the
  163  appropriate board, or the department when there is no board,
  164  finds:
  165         1. The licensee has acknowledged the impairment problem.
  166         2. The licensee has voluntarily enrolled in an appropriate,
  167  approved treatment program.
  168         3. The licensee has voluntarily withdrawn from practice or
  169  limited the scope of practice as required by the consultant, in
  170  each case, until such time as the panel, or the department when
  171  there is no board, is satisfied the licensee has successfully
  172  completed an approved treatment program.
  173         4. The licensee has executed releases for medical records,
  174  authorizing the release of all records of evaluations,
  175  diagnoses, and treatment of the licensee, including records of
  176  treatment for emotional or mental conditions, to the consultant.
  177  The consultant shall make no copies or reports of records that
  178  do not regard the issue of the licensee’s impairment and his or
  179  her participation in a treatment program.
  180         (b) If, however, the department has not received a legally
  181  sufficient complaint and the licensee agrees to withdraw from
  182  practice until such time as the consultant determines the
  183  licensee has satisfactorily completed an approved treatment
  184  program or evaluation, the probable cause panel, or the
  185  department when there is no board, shall not become involved in
  186  the licensee’s case.
  187         (c) Inquiries related to impairment treatment programs
  188  designed to provide information to the licensee and others and
  189  which do not indicate that the licensee presents a danger to the
  190  public shall not constitute a complaint within the meaning of s.
  191  456.073 and shall be exempt from the provisions of this
  192  subsection.
  193         (d) Whenever the department receives a legally sufficient
  194  complaint alleging that a licensee is impaired as described in
  195  paragraph (a) and no complaint against the licensee other than
  196  impairment exists, the department shall forward all information
  197  in its possession regarding the impaired licensee to the
  198  consultant. For the purposes of this section, a suspension from
  199  hospital staff privileges due to the impairment does not
  200  constitute a complaint.
  201         (e) The probable cause panel, or the department when there
  202  is no board, shall work directly with the consultant, and all
  203  information concerning a practitioner obtained from the
  204  consultant by the panel, or the department when there is no
  205  board, shall remain confidential and exempt from the provisions
  206  of s. 119.07(1), subject to the provisions of subsections (5)
  207  and (6) and (7).
  208         (f) A finding of probable cause shall not be made as long
  209  as the panel, or the department when there is no board, is
  210  satisfied, based upon information it receives from the
  211  consultant and the department, that the licensee is progressing
  212  satisfactorily in an approved impaired practitioner program and
  213  no other complaint against the licensee exists.
  214         (5)(4) In any disciplinary action for a violation other
  215  than impairment in which a licensee establishes the violation
  216  for which the licensee is being prosecuted was due to or
  217  connected with impairment and further establishes the licensee
  218  is satisfactorily progressing through or has successfully
  219  completed an approved treatment program pursuant to this
  220  section, such information may be considered by the board, or the
  221  department when there is no board, as a mitigating factor in
  222  determining the appropriate penalty. This subsection does not
  223  limit mitigating factors the board may consider.
  224         (6)(5)(a) An approved treatment provider shall, upon
  225  request, disclose to the consultant all information in its
  226  possession regarding the issue of a licensee’s impairment and
  227  participation in the treatment program. All information obtained
  228  by the consultant and department pursuant to this section is
  229  confidential and exempt from the provisions of s. 119.07(1),
  230  subject to the provisions of this subsection and subsection
  231  (7)(6). Failure to provide such information to the consultant is
  232  grounds for withdrawal of approval of such program or provider.
  233         (b) If in the opinion of the consultant, after consultation
  234  with the treatment provider, an impaired licensee has not
  235  progressed satisfactorily in a treatment program, all
  236  information regarding the issue of a licensee’s impairment and
  237  participation in a treatment program in the consultant’s
  238  possession shall be disclosed to the department. Such disclosure
  239  shall constitute a complaint pursuant to the general provisions
  240  of s. 456.073. Whenever the consultant concludes that impairment
  241  affects a licensee’s practice and constitutes an immediate,
  242  serious danger to the public health, safety, or welfare, that
  243  conclusion shall be communicated to the State Surgeon General.
  244         (7)(6) A consultant, licensee, or approved treatment
  245  provider who makes a disclosure pursuant to this section is not
  246  subject to civil liability for such disclosure or its
  247  consequences. The provisions of s. 766.101 apply to any officer,
  248  employee, or agent of the department or the board and to any
  249  officer, employee, or agent of any entity with which the
  250  department has contracted pursuant to this section.
  251         (8)(7)(a) A consultant retained pursuant to subsection (2),
  252  a consultant’s officers and employees, and those acting at the
  253  direction of the consultant for the limited purpose of an
  254  emergency intervention on behalf of a licensee or student as
  255  described in subsection (2) when the consultant is unable to
  256  perform such intervention shall be considered agents of the
  257  department for purposes of s. 768.28 while acting within the
  258  scope of the consultant’s duties under the contract with the
  259  department if the contract complies with the requirements of
  260  this section. The contract must require that:
  261         1. The consultant indemnify the state for any liabilities
  262  incurred up to the limits set out in chapter 768.
  263         2. The consultant establish a quality assurance program to
  264  monitor services delivered under the contract.
  265         3. The consultant’s quality assurance program, treatment,
  266  and monitoring records be evaluated quarterly.
  267         4. The consultant’s quality assurance program be subject to
  268  review and approval by the department.
  269         5. The consultant operate under policies and procedures
  270  approved by the department.
  271         6. The consultant provide to the department for approval a
  272  policy and procedure manual that comports with all statutes,
  273  rules, and contract provisions approved by the department.
  274         7. The department be entitled to review the records
  275  relating to the consultant’s performance under the contract for
  276  the purpose of management audits, financial audits, or program
  277  evaluation.
  278         8. All performance measures and standards be subject to
  279  verification and approval by the department.
  280         9. The department be entitled to terminate the contract
  281  with the consultant for noncompliance with the contract.
  282         (b) In accordance with s. 284.385, the Department of
  283  Financial Services shall defend any claim, suit, action, or
  284  proceeding against the consultant, the consultant’s officers or
  285  employees, or those acting at the direction of the consultant
  286  for the limited purpose of an emergency intervention on behalf
  287  of a licensee or student as described in subsection (2) when the
  288  consultant is unable to perform such intervention which is
  289  brought as a result of any act or omission by any of the
  290  consultant’s officers and employees and those acting under the
  291  direction of the consultant for the limited purpose of an
  292  emergency intervention on behalf of a licensee or student as
  293  described in subsection (2) when the consultant is unable to
  294  perform such intervention when such act or omission arises out
  295  of and in the scope of the consultant’s duties under its
  296  contract with the department.
  297         (c) If the consultant retained pursuant to subsection (2)
  298  is retained by any other state agency, and if the contract
  299  between such state agency and the consultant complies with the
  300  requirements of this section, the consultant, the consultant’s
  301  officers and employees, and those acting under the direction of
  302  the consultant for the limited purpose of an emergency
  303  intervention on behalf of a licensee or student as described in
  304  subsection (2) when the consultant is unable to perform such
  305  intervention shall be considered agents of the state for the
  306  purposes of this section while acting within the scope of and
  307  pursuant to guidelines established in the contract between such
  308  state agency and the consultant.
  309         (9) An impaired practitioner consultant is the official
  310  custodian of records relating to the referral of an impaired
  311  licensee or applicant to that consultant and any other
  312  interaction between the licensee or applicant and the
  313  consultant. The consultant may disclose to the impaired licensee
  314  or applicant or his or her designee any information that is
  315  disclosed to or obtained by the consultant or that is
  316  confidential under paragraph (6)(a), but only to the extent that
  317  it is necessary to do so to carry out the consultant’s duties
  318  under this section. The department, and any other entity that
  319  enters into a contract with the consultant to receive the
  320  services of the consultant, has direct administrative control
  321  over the consultant to the extent necessary to receive
  322  disclosures from the consultant as allowed by federal law. If a
  323  disciplinary proceeding is pending, an impaired licensee may
  324  obtain such information from the department under s. 456.073.
  325         Section 2. Paragraph (e) of subsection (1) of section
  326  458.331, Florida Statutes, is amended to read:
  327         458.331 Grounds for disciplinary action; action by the
  328  board and department.—
  329         (1) The following acts constitute grounds for denial of a
  330  license or disciplinary action, as specified in s. 456.072(2):
  331         (e) Failing to report to the department any person who the
  332  licensee knows is in violation of this chapter or of the rules
  333  of the department or the board. A treatment provider approved
  334  pursuant to s. 456.076 shall provide the department or
  335  consultant with information in accordance with the requirements
  336  of s. 456.076(4), (5), (6), (7), and (9) s. 456.076(3), (4),
  337  (5), and (6).
  338         Section 3.  Paragraph (e) of subsection (1) of section
  339  459.015, Florida Statutes, is amended to read:
  340         459.015 Grounds for disciplinary action; action by the
  341  board and department.—
  342         (1) The following acts constitute grounds for denial of a
  343  license or disciplinary action, as specified in s. 456.072(2):
  344         (e) Failing to report to the department or the department’s
  345  impaired professional consultant any person who the licensee or
  346  certificateholder knows is in violation of this chapter or of
  347  the rules of the department or the board. A treatment provider,
  348  approved pursuant to s. 456.076, shall provide the department or
  349  consultant with information in accordance with the requirements
  350  of s. 456.076(4), (5), (6), (7), and (9) s. 456.076(3), (4),
  351  (5), and (6).
  352         Section 4. Section 468.315, Florida Statutes, is created to
  353  read:
  354         468.315 Treatment program for impaired radiological
  355  personnel.—Radiological personnel who are subject to
  356  certification under this part are governed by s. 456.076 as if
  357  they were under the jurisdiction of the Division of Medical
  358  Quality Assurance.
  359         Section 5. This act shall take effect July 1, 2013.