The Florida Senate

459.001  Purpose.

459.002  Chapter not applicable to practice of medicine, surgery, chiropractic medicine, etc.

459.003  Definitions.

459.004  Board of Osteopathic Medicine.

459.005  Rulemaking authority.

459.0055  General licensure requirements.

459.006  Licensure by examination.

459.007  Licensure by endorsement.

459.0075  Limited licenses.

459.0077  Osteopathic faculty certificate.

459.008  Renewal of licenses and certificates.

459.0085  Financial responsibility.

459.009  Inactive status.

459.0092  Fees.

459.011  Privileges, obligations, and status of osteopathic physicians.

459.012  Itemized patient statement.

459.0122  Patient records; termination of osteopathic physician's practice.

459.0125  Breast cancer; information on treatment alternatives.

459.013  Penalty for violations.

459.0135  Drugs to treat obesity; rules establishing guidelines.

459.0141  Sexual misconduct in the practice of osteopathic medicine.

459.0145  Concerted effort to refuse emergency room treatment to patients; penalties.

459.015  Grounds for disciplinary action; action by the board and department.

459.0151  Emergency procedures for disciplinary action.

459.0152  Specialties.

459.016  Reports of disciplinary actions by medical organizations.

459.017  Osteopathic physician's consent; handwriting samples; mental or physical examinations.

459.018  Search warrants for certain violations.

459.019  Subpoena of certain records.

459.021  Registration of resident physicians, interns, and fellows; list of hospital employees; penalty.

459.022  Physician assistants.

459.026  Reports of adverse incidents in office practice settings.

459.001  Purpose.--The Legislature recognizes that the practice of osteopathic medicine is potentially dangerous to the public if conducted by unsafe and incompetent practitioners. The Legislature finds further that it is difficult for the public to make an informed choice when selecting an osteopathic physician and that the consequences of a wrong decision could seriously harm the public health and safety. The primary legislative purpose in enacting this chapter is to ensure that every osteopathic physician practicing in this state meets minimum requirements for safe and effective practice. It is the legislative intent that osteopathic physicians who fall below minimum competency or who otherwise present a danger to the public shall be prohibited from practicing in this state.

History.--ss. 1, 6, ch. 79-230; ss. 2, 3, ch. 81-318; ss. 1, 27, 29, ch. 86-290; s. 4, ch. 91-429.

459.002  Chapter not applicable to practice of medicine, surgery, chiropractic medicine, etc.--

(1)  The provisions of this chapter shall have no application to:

(a)  Duly licensed health care practitioners, other than osteopathic physicians and their physician assistants, acting within their scope of practice authorized by statute.

(b)  Any physician lawfully licensed in another state or territory or foreign country when meeting duly licensed physicians of this state in consultation.

(c)  Commissioned medical officers of the Armed Forces of the United States and of the Public Health Service of the United States while on active duty.

(d)  Students practicing under the direct supervision of licensed osteopathic physicians in extern programs approved by any college recognized and approved by the American Osteopathic Association.

(e)  Any person, other than a person licensed under this chapter, furnishing medical assistance in case of any emergency.

(f)  The domestic administration of recognized family remedies.

(g)  The practice of the religious tenets of any church in this state.

(h)  Any person or manufacturer who, without the use of drugs or medicine, mechanically fits or sells lenses, artificial eyes or limbs, or other apparatus or appliances or is engaged in the mechanical examination of eyes for the purpose of constructing or adjusting spectacles, eyeglasses, or lenses.

(2)  Nothing in this chapter shall be construed to prohibit any service rendered by any person if such service is rendered under the direct supervision and control of a licensed osteopathic physician who must be available when needed, must provide specific direction for any service to be performed, and must give final approval to all services performed.

History.--ss. 1, 6, ch. 79-230; s. 302, ch. 81-259; ss. 2, 3, ch. 81-318; ss. 2, 27, 29, ch. 86-290; s. 6, ch. 91-22; s. 4, ch. 91-429; s. 269, ch. 98-166.

459.003  Definitions.--As used in this chapter:

(1)  "Board" means the Board of Osteopathic Medicine.

(2)  "Department" means the Department of Health.

(3)  "Practice of osteopathic medicine" means the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition, which practice is based in part upon educational standards and requirements which emphasize the importance of the musculoskeletal structure and manipulative therapy in the maintenance and restoration of health.

(4)  "Osteopathic physician" means a person who is licensed to practice osteopathic medicine in this state.

(5)  "Doctor of Osteopathy" and "Doctor of Osteopathic Medicine," when referring to degrees, shall be construed to be equivalent and equal degrees.

History.--ss. 1, 6, ch. 79-230; ss. 2, 3, ch. 81-318; ss. 27, 29, ch. 86-290; s. 4, ch. 91-429; s. 84, ch. 92-149; s. 109, ch. 94-218; s. 29, ch. 97-264.

459.004  Board of Osteopathic Medicine.--

(1)  There is created within the department the Board of Osteopathic Medicine, composed of seven members appointed by the Governor and confirmed by the Senate.

(2)  Five members of the board must be licensed osteopathic physicians in good standing in this state who are residents of this state and who have been engaged in the practice of osteopathic medicine for at least 4 years immediately prior to their appointment. The remaining two members must be citizens of the state who are not, and have never been, licensed health care practitioners. At least one member of the board must be 60 years of age or older.

(3)  As the terms of the members expire, the Governor shall appoint successors for terms of 4 years, and such members shall serve until their successors are appointed.

(4)  All provisions of chapter 456 relating to activities of the board shall apply.

History.--ss. 1, 6, ch. 79-230; ss. 2, 3, ch. 81-318; ss. 3, 27, 29, ch. 86-290; s. 11, ch. 87-172; s. 4, ch. 91-429; s. 85, ch. 92-149; s. 110, ch. 94-218; s. 50, ch. 98-166; s. 109, ch. 2000-160.

459.005  Rulemaking authority.--

(1)  The board has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this chapter conferring duties upon it.

(2)  All physicians who perform level 2 procedures lasting more than 5 minutes and all level 3 surgical procedures in an office setting must register the office with the department unless that office is licensed as a facility pursuant to chapter 395. The department shall inspect the physician's office annually unless the office is accredited by a nationally recognized accrediting agency or an accrediting organization subsequently approved by the Board of Osteopathic Medicine. The actual costs for registration and inspection or accreditation shall be paid by the person seeking to register and operate the office setting in which office surgery is performed.

History.--ss. 1, 6, ch. 79-230; ss. 2, 3, ch. 81-318; ss. 27, 29, ch. 86-290; s. 4, ch. 91-429; s. 121, ch. 98-200; s. 101, ch. 99-397.

459.0055  General licensure requirements.--

(1)  Except as otherwise provided herein, any person desiring to be licensed or certified as an osteopathic physician pursuant to this chapter shall:

(a)  Complete an application form and submit the appropriate fee to the department;

(b)  Be at least 21 years of age;

(c)  Be of good moral character;

(d)  Have completed at least 3 years of preprofessional postsecondary education;

(e)  Have not previously committed any act which would constitute a violation of this chapter, unless the board determines that such act does not adversely affect the applicant's present ability and fitness to practice osteopathic medicine;

(f)  Not be under investigation in any jurisdiction for an act which would constitute a violation of this chapter. If, upon completion of such investigation, it is determined that the applicant has committed an act which would constitute a violation of this chapter, the applicant shall be ineligible for licensure unless the board determines that such act does not adversely affect the applicant's present ability and fitness to practice osteopathic medicine;

(g)  Have not had an application for a license to practice osteopathic medicine denied or a license to practice osteopathic medicine revoked, suspended, or otherwise acted against by the licensing authority of any jurisdiction unless the board determines that the grounds on which such action was taken do not adversely affect the applicant's present ability and fitness to practice osteopathic medicine. A licensing authority's acceptance of a physician's relinquishment of license, stipulation, consent order, or other settlement, offered in response to or in anticipation of the filing of administrative charges against the osteopathic physician, shall be considered action against the osteopathic physician's license;

(h)  Have met the criteria set forth in s. 459.006, s. 459.007, s. 459.0075, s. 459.0077, or s. 459.021, whichever is applicable;

(i)  Submit to the department a set of fingerprints on a form and under procedures specified by the department, along with a payment in an amount equal to the costs incurred by the Department of Health for the criminal background check of the applicant.

(2)  The board may require a personal appearance of any applicant for licensure or certification under the provisions of this chapter. Any applicant of whom a personal appearance is required must be given adequate notice of the appearance as to time and place of the appearance, as well as a statement of the purpose for the appearance and the reasons requiring such appearance.

(3)  If an applicant has committed an act which would constitute a violation of this chapter or has had an application for a license to practice osteopathic medicine revoked, suspended, or otherwise acted against by the licensing authority of any jurisdiction, notwithstanding the board's determination that the applicant's present ability and fitness to practice osteopathic medicine have not been adversely affected, the board may certify the application to the department with restrictions.

(4)  The department and the board shall assure that applicants for licensure meet applicable criteria in this chapter through an investigative process. When the investigative process is not completed within the time set out in s. 120.60(1) and the department or board has reason to believe that the applicant does not meet the criteria, the secretary or the secretary's designee may issue a 90-day licensure delay which shall be in writing and sufficient to notify the applicant of the reason for the delay. The provisions of this subsection shall control over any conflicting provisions of s. 120.60(1).

History.--ss. 4, 29, ch. 86-290; s. 30, ch. 88-1; s. 4, ch. 91-429; s. 219, ch. 96-410; s. 1095, ch. 97-103; s. 136, ch. 97-237; s. 12, ch. 97-273.

459.006  Licensure by examination.--Any person desiring to be licensed by examination shall:

(1)  Have successfully completed a resident internship of not less than 12 months in a hospital approved for this purpose by the Board of Trustees of the American Osteopathic Association or any other internship program approved by the board upon a showing of good cause by the applicant. This requirement may be waived for applicants who matriculated in a college of osteopathic medicine during or before 1948.

(2)  Be a graduate of a college recognized and approved by the American Osteopathic Association.

(3)  No more than 5 years prior to application, have obtained a passing score, as established by rule of the board, on all parts of the examination conducted by the National Board of Osteopathic Medical Examiners or other examination given and administered by the board.

(4)  Meet all of the requirements of s. 459.0055.

History.--ss. 1, 6, ch. 79-230; ss. 2, 3, ch. 81-318; s. 1, ch. 84-39; ss. 5, 27, 29, ch. 86-290; s. 4, ch. 91-429; s. 86, ch. 92-149; s. 49, ch. 97-264.

459.007  Licensure by endorsement.--Any person desiring to be licensed by endorsement shall:

(1)  Have successfully completed a resident internship of not less than 12 months in a hospital approved for this purpose by the Board of Trustees of the American Osteopathic Association or any other internship program approved by the board upon a showing of good cause by the applicant.

(2)  Be a graduate of a college recognized and approved by the American Osteopathic Association.

(3)  Have passed all parts of the examination conducted by the National Board of Osteopathic Medical Examiners or other substantially similar examination approved by the board.

(4)  Be the holder of a valid, active license to practice osteopathic medicine in at least one jurisdiction in the United States in which the current requirements for licensure are equivalent to or more stringent than those in this state.

(5)  Have actively and continuously engaged in the practice of osteopathic medicine for the period of time after being initially licensed to practice osteopathic medicine in another jurisdiction, which initial licensure shall have occurred no more than 5 years after the applicant obtained a passing score on the examination conducted by the National Board of Osteopathic Medical Examiners or other substantially similar examination approved by the board; however, such practice of osteopathic medicine may have been interrupted for a period totaling no more than 2 years or for a longer period of time if the board determines that the interruption of the osteopathic physician's practice of osteopathic medicine for such longer period has not adversely affected the osteopathic physician's present ability and fitness to practice osteopathic medicine.

(6)  Meet all of the requirements of s. 459.0055.

History.--ss. 1, 6, ch. 79-230; ss. 2, 3, ch. 81-318; ss. 6, 27, 29, ch. 86-290; s. 4, ch. 91-429; s. 87, ch. 92-149.

459.0075  Limited licenses.--

(1)  Any person desiring to obtain a limited license shall:

(a)  Submit to the board a licensure application and fee required by this chapter. However, an osteopathic physician who is not fully retired in all jurisdictions may use a limited license only for noncompensated practice. If the person applying for a limited license submits a notarized statement from the employing agency or institution stating that she or he will not receive monetary compensation for any service involving the practice of osteopathic medicine, the application fee and all licensure fees shall be waived. However, any person who receives a waiver of fees for a limited license shall pay such fees if the person receives compensation for the practice of osteopathic medicine.

(b)  Submit an affidavit that such osteopathic physician has been licensed to practice osteopathic medicine in any jurisdiction in the United States in good standing and pursuant to law for at least 10 years.

(c)  Complete an amount of continuing education established by the board.

(d)  Within 60 days after receipt of an application for a limited license, the board shall review the application and issue the limited license or notify the applicant of denial.

(2)  If it has been more than 3 years since active practice was conducted by the applicant, the full-time director of the local county health department shall supervise the applicant for a period of 6 months after the applicant is granted a limited license to practice, unless the board determines that a shorter period of supervision will be sufficient to ensure that the applicant is qualified for licensure pursuant to this section. Procedures for such supervision shall be established by the board.

(3)  The recipient of a limited license may practice only in the employ of public agencies or institutions or nonprofit agencies or institutions meeting the requirements of s. 501(c)(3) of the Internal Revenue Code, which agencies or institutions are located in areas of critical medical need or in medically underserved areas as determined pursuant to 42 U.S.C. s. 300e-1(7).

(4)  The board shall notify the director of the full-time local county health department of any county in which a licensee intends to practice under the provisions of this section. The director of the full-time county health department shall assist in the supervision of any licensee within her or his county and shall notify the board if she or he becomes aware of any action by the licensee which would be a ground for revocation of the limited license. The board shall establish procedures for such supervision.

(5)  The State Board of Osteopathic Medicine shall review the practice of each licensee under this section biennially to verify compliance with the restrictions prescribed in this section and other provisions of this chapter.

(6)  Any person desiring a limited license shall meet all the requirements of s. 459.0055, except s. 459.0055(1)(d).

(7)  Any person holding an active license to practice osteopathic medicine in the state may convert that license to a limited license for the purpose of providing volunteer, uncompensated care for low-income Floridians. The applicant must submit a statement from the employing agency or institution stating that he or she will not receive compensation for any service involving the practice of osteopathic medicine. The application and all licensure fees, including neurological injury compensation assessments, shall be waived.

History.--ss. 13, 14, 15, 25, 30, 34, 62, ch. 80-406; s. 2, ch. 81-318; ss. 7, 27, 29, ch. 86-290; s. 2, ch. 91-88; s. 4, ch. 91-429; s. 88, ch. 92-149; s. 2, ch. 97-3; s. 143, ch. 97-101; s. 213, ch. 97-103; s. 31, ch. 97-264; s. 102, ch. 99-397; s. 19, ch. 2001-277.

459.0077  Osteopathic faculty certificate.--

(1)  The department may issue an osteopathic faculty certificate without examination to an individual who remits an application fee, as set by the board, who demonstrates to the board that she or he is currently licensed to practice osteopathic medicine in another jurisdiction in the United States and who demonstrates to the board that she or he is a graduate of an accredited school of osteopathic medicine and has completed the requirements of s. 459.0055. The certificate shall authorize the holder to practice only in conjunction with her or his teaching duties at an accredited school of osteopathic medicine or in its affiliated teaching hospitals or clinics.

(2)  Such certificate shall automatically expire upon termination of the holder's relationship with the school or after a period of 24 months, whichever occurs first.

History.--ss. 18, 118, ch. 83-329; ss. 8, 27, 29, ch. 86-290; s. 1, ch. 90-254; s. 4, ch. 91-429; s. 214, ch. 97-103.

459.008  Renewal of licenses and certificates.--

(1)  The department shall renew a license or certificate upon receipt of the renewal application and fee. An applicant for a renewed license must also submit the information required under s. 456.039 to the department on a form and under procedures specified by the department, along with payment in an amount equal to the costs incurred by the Department of Health for the statewide criminal background check of the applicant. The applicant must submit a set of fingerprints to the Department of Health on a form and under procedures specified by the department, along with payment in an amount equal to the costs incurred by the department for a national criminal background check of the applicant for the initial renewal of his or her license after January 1, 2000. If the applicant fails to submit either the information required under s. 456.039 or a set of fingerprints to the department as required by this section, the department shall issue a notice of noncompliance, and the applicant will be given 30 additional days to comply. If the applicant fails to comply within 30 days after the notice of noncompliance is issued, the department or board, as appropriate, may issue a citation to the applicant and may fine the applicant up to $50 for each day that the applicant is not in compliance with the requirements of s. 456.039. The citation must clearly state that the applicant may choose, in lieu of accepting the citation, to follow the procedure under s. 456.073. If the applicant disputes the matter in the citation, the procedures set forth in s. 456.073 must be followed. However, if the applicant does not dispute the matter in the citation with the department within 30 days after the citation is served, the citation becomes a final order and constitutes discipline. Service of a citation may be made by personal service or certified mail, restricted delivery, to the subject at the applicant's last known address. If an applicant has submitted fingerprints to the department for a national criminal history check upon initial licensure and is renewing his or her license for the first time, then the applicant need only submit the information and fee required for a statewide criminal history check.

(2)  The department shall adopt rules establishing a procedure for the biennial renewal of licenses and certificates issued under this chapter.

(3)  The licensee or certificateholder must have on file with the department the address of her or his primary place of practice within this state prior to engaging in that practice. Prior to changing the address of her or his primary place of practice, whether or not within this state, the licensee or certificateholder must notify the department of the address of her or his new primary place of practice.

(4)  The board shall, by rule, prescribe continuing education programs and courses, not to exceed 40 hours biennially, as a condition for renewal of a license. Such programs and courses must build on the basic educational requirements for licensure as an osteopathic physician and must be approved by the board.

(5)  Notwithstanding the provisions of s. 456.033, an osteopathic physician may complete continuing education on end-of-life and palliative care in lieu of continuing education in AIDS/HIV, if that physician has completed the AIDS/HIV continuing education in the immediately preceding biennium.

History.--ss. 1, 6, ch. 79-230; ss. 2, 3, ch. 81-318; ss. 9, 27, 29, ch. 86-290; s. 31, ch. 88-1; s. 4, ch. 91-429; s. 2, ch. 92-22; s. 166, ch. 94-119; s. 215, ch. 97-103; s. 137, ch. 97-237; s. 13, ch. 97-273; s. 51, ch. 98-166; s. 11, ch. 99-331; s. 110, ch. 2000-160; s. 130, ch. 2001-277.

¹459.0085  Financial responsibility.--

(1)  As a condition of licensing and maintaining an active license, and prior to the issuance or renewal of an active license or reactivation of an inactive license for the practice of osteopathic medicine, an applicant must by one of the following methods demonstrate to the satisfaction of the board and the department financial responsibility to pay claims and costs ancillary thereto arising out of the rendering of, or the failure to render, medical care or services:

(a)  Establishing and maintaining an escrow account consisting of cash or assets eligible for deposit in accordance with s. 625.52 in the per-claim amounts specified in paragraph (b). The required escrow amount set forth in this paragraph may not be used for litigation costs or attorney's fees for the defense of any medical malpractice claim.

(b)  Obtaining and maintaining professional liability coverage in an amount not less than $100,000 per claim, with a minimum annual aggregate of not less than $300,000, from an authorized insurer as defined under s. 624.09, from a surplus lines insurer as defined under s. 626.914(2), from a risk retention group as defined under s. 627.942, from the Joint Underwriting Association established under s. 627.351(4), or through a plan of self-insurance as provided in s. 627.357. The required coverage amount set forth in this paragraph may not be used for litigation costs or attorney's fees for the defense of any medical malpractice claim.

(c)  Obtaining and maintaining an unexpired, irrevocable letter of credit, established pursuant to chapter 675, in an amount not less than $100,000 per claim, with a minimum aggregate availability of credit of not less than $300,000. The letter of credit must be payable to the osteopathic physician as beneficiary upon presentment of a final judgment indicating liability and awarding damages to be paid by the osteopathic physician or upon presentment of a settlement agreement signed by all parties to such agreement when such final judgment or settlement is a result of a claim arising out of the rendering of, or the failure to render, medical care and services. The letter of credit may not be used for litigation costs or attorney's fees for the defense of any medical malpractice claim. The letter of credit must be nonassignable and nontransferable. Such letter of credit must be issued by any bank or savings association organized and existing under the laws of this state or any bank or savings association organized under the laws of the United States which has its principal place of business in this state or has a branch office that is authorized under the laws of this state or of the United States to receive deposits in this state.

(2)  Osteopathic physicians who perform surgery in an ambulatory surgical center licensed under chapter 395 and, as a continuing condition of hospital staff privileges, osteopathic physicians who have staff privileges must also establish financial responsibility by one of the following methods:

(a)  Establishing and maintaining an escrow account consisting of cash or assets eligible for deposit in accordance with s. 625.52 in the per-claim amounts specified in paragraph (b). The required escrow amount set forth in this paragraph may not be used for litigation costs or attorney's fees for the defense of any medical malpractice claim.

(b)  Obtaining and maintaining professional liability coverage in an amount not less than $250,000 per claim, with a minimum annual aggregate of not less than $750,000 from an authorized insurer as defined under s. 624.09, from a surplus lines insurer as defined under s. 626.914(2), from a risk retention group as defined under s. 627.942, from the Joint Underwriting Association established under s. 627.351(4), through a plan of self-insurance as provided in s. 627.357, or through a plan of self-insurance that meets the conditions specified for satisfying financial responsibility in s. 766.110. The required coverage amount set forth in this paragraph may not be used for litigation costs or attorney's fees for the defense of any medical malpractice claim.

(c)  Obtaining and maintaining an unexpired, irrevocable letter of credit, established pursuant to chapter 675, in an amount not less than $250,000 per claim, with a minimum aggregate availability of credit of not less than $750,000. The letter of credit must be payable to the osteopathic physician as beneficiary upon presentment of a final judgment indicating liability and awarding damages to be paid by the osteopathic physician or upon presentment of a settlement agreement signed by all parties to such agreement when such final judgment or settlement is a result of a claim arising out of the rendering of, or the failure to render, medical care and services. The letter of credit may not be used for litigation costs or attorney's fees for the defense of any medical malpractice claim. The letter of credit must be nonassignable and nontransferable. The letter of credit must be issued by any bank or savings association organized and existing under the laws of this state or any bank or savings association organized under the laws of the United States which has its principal place of business in this state or has a branch office that is authorized under the laws of this state or of the United States to receive deposits in this state.

This subsection shall be inclusive of the coverage in subsection (1).

(3)(a)  Meeting the financial responsibility requirements of this section or the criteria for any exemption from such requirements must be established at the time of issuance or renewal of a license.

(b)  Any person may, at any time, submit to the department a request for an advisory opinion regarding such person's qualifications for exemption.

(4)(a)  Each insurer, self-insurer, risk retention group, or joint underwriting association must promptly notify the department of cancellation or nonrenewal of insurance required by this section. Unless the osteopathic physician demonstrates that he or she is otherwise in compliance with the requirements of this section, the department shall suspend the license of the osteopathic physician pursuant to ss. 120.569 and 120.57 and notify all health care facilities licensed under chapter 395, part IV of chapter 394, or part I of chapter 641 of such action. Any suspension under this subsection remains in effect until the osteopathic physician demonstrates compliance with the requirements of this section. If any judgments or settlements are pending at the time of suspension, those judgments or settlements must be paid in accordance with this section unless otherwise mutually agreed to in writing by the parties. This paragraph does not abrogate a judgment debtor's obligation to satisfy the entire amount of any judgment.

(b)  If financial responsibility requirements are met by maintaining an escrow account or letter of credit as provided in this section, upon the entry of an adverse final judgment arising from a medical malpractice arbitration award, from a claim of medical malpractice either in contract or tort, or from noncompliance with the terms of a settlement agreement arising from a claim of medical malpractice either in contract or tort, the licensee shall pay the entire amount of the judgment together with all accrued interest or the amount maintained in the escrow account or provided in the letter of credit as required by this section, whichever is less, within 60 days after the date such judgment became final and subject to execution, unless otherwise mutually agreed to in writing by the parties. If timely payment is not made by the osteopathic physician, the department shall suspend the license of the osteopathic physician pursuant to procedures set forth in subparagraphs (5)(g)3., 4., and 5. Nothing in this paragraph shall abrogate a judgment debtor's obligation to satisfy the entire amount of any judgment.

(5)  The requirements of subsections (1), (2), and (3) do not apply to:

(a)  Any person licensed under this chapter who practices medicine exclusively as an officer, employee, or agent of the Federal Government or of the state or its agencies or its subdivisions. For the purposes of this subsection, an agent of the state, its agencies, or its subdivisions is a person who is eligible for coverage under any self-insurance or insurance program authorized by the provisions of ²s. 768.28(15).

(b)  Any person whose license has become inactive under this chapter and who is not practicing medicine in this state. Any person applying for reactivation of a license must show either that such licensee maintained tail insurance coverage that provided liability coverage for incidents that occurred on or after January 1, 1987, or the initial date of licensure in this state, whichever is later, and incidents that occurred before the date on which the license became inactive; or such licensee must submit an affidavit stating that such licensee has no unsatisfied medical malpractice judgments or settlements at the time of application for reactivation.

(c)  Any person holding a limited license pursuant to s. 459.0075 and practicing under the scope of such limited license.

(d)  Any person licensed or certified under this chapter who practices only in conjunction with his or her teaching duties at a college of osteopathic medicine. Such person may engage in the practice of osteopathic medicine to the extent that such practice is incidental to and a necessary part of duties in connection with the teaching position in the college of osteopathic medicine.

(e)  Any person holding an active license under this chapter who is not practicing osteopathic medicine in this state. If such person initiates or resumes any practice of osteopathic medicine in this state, he or she must notify the department of such activity and fulfill the financial responsibility requirements of this section before resuming the practice of osteopathic medicine in this state.

(f)  Any person holding an active license under this chapter who meets all of the following criteria:

1.  The licensee has held an active license to practice in this state or another state or some combination thereof for more than 15 years.

2.  The licensee has either retired from the practice of osteopathic medicine or maintains a part-time practice of osteopathic medicine of no more than 1,000 patient contact hours per year.

3.  The licensee has had no more than two claims for medical malpractice resulting in an indemnity exceeding $25,000 within the previous 5-year period.

4.  The licensee has not been convicted of, or pled guilty or nolo contendere to, any criminal violation specified in this chapter or the practice act of any other state.

5.  The licensee has not been subject within the last 10 years of practice to license revocation or suspension for any period of time, probation for a period of 3 years or longer, or a fine of $500 or more for a violation of this chapter or the medical practice act of another jurisdiction. The regulatory agency's acceptance of an osteopathic physician's relinquishment of a license, stipulation, consent order, or other settlement, offered in response to or in anticipation of the filing of administrative charges against the osteopathic physician's license, constitutes action against the physician's license for the purposes of this paragraph.

6.  The licensee has submitted a form supplying necessary information as required by the department and an affidavit affirming compliance with this paragraph.

7.  The licensee must submit biennially to the department a certification stating compliance with this paragraph. The licensee must, upon request, demonstrate to the department information verifying compliance with this paragraph.

A licensee who meets the requirements of this paragraph must post notice in the form of a sign prominently displayed in the reception area and clearly noticeable by all patients or provide a written statement to any person to whom medical services are being provided. The sign or statement must read as follows: "Under Florida law, osteopathic physicians are generally required to carry medical malpractice insurance or otherwise demonstrate financial responsibility to cover potential claims for medical malpractice. However, certain part-time osteopathic physicians who meet state requirements are exempt from the financial responsibility law. YOUR OSTEOPATHIC PHYSICIAN MEETS THESE REQUIREMENTS AND HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE. This notice is provided pursuant to Florida law."

(g)  Any person holding an active license under this chapter who agrees to meet all of the following criteria.

1.  Upon the entry of an adverse final judgment arising from a medical malpractice arbitration award, from a claim of medical malpractice either in contract or tort, or from noncompliance with the terms of a settlement agreement arising from a claim of medical malpractice either in contract or tort, the licensee shall pay the judgment creditor the lesser of the entire amount of the judgment with all accrued interest or either $100,000, if the osteopathic physician is licensed pursuant to this chapter but does not maintain hospital staff privileges, or $250,000, if the osteopathic physician is licensed pursuant to this chapter and maintains hospital staff privileges, within 60 days after the date such judgment became final and subject to execution, unless otherwise mutually agreed to in writing by the parties. Such adverse final judgment shall include any cross-claim, counterclaim, or claim for indemnity or contribution arising from the claim of medical malpractice. Upon notification of the existence of an unsatisfied judgment or payment pursuant to this subparagraph, the department shall notify the licensee by certified mail that he or she shall be subject to disciplinary action unless, within 30 days from the date of mailing, the licensee either:

a.  Shows proof that the unsatisfied judgment has been paid in the amount specified in this subparagraph; or

b.  Furnishes the department with a copy of a timely filed notice of appeal and either:

(I)  A copy of a supersedeas bond properly posted in the amount required by law; or

(II)  An order from a court of competent jurisdiction staying execution on the final judgment, pending disposition of the appeal.

2.  The Department of Health shall issue an emergency order suspending the license of any licensee who, after 30 days following receipt of a notice from the Department of Health, has failed to: satisfy a medical malpractice claim against him or her; furnish the Department of Health a copy of a timely filed notice of appeal; furnish the Department of Health a copy of a supersedeas bond properly posted in the amount required by law; or furnish the Department of Health an order from a court of competent jurisdiction staying execution on the final judgment pending disposition of the appeal.

3.  Upon the next meeting of the probable cause panel of the board following 30 days after the date of mailing the notice of disciplinary action to the licensee, the panel shall make a determination of whether probable cause exists to take disciplinary action against the licensee pursuant to subparagraph 1.

4.  If the board determines that the factual requirements of subparagraph 1. are met, it shall take disciplinary action as it deems appropriate against the licensee. Such disciplinary action shall include, at a minimum, probation of the license with the restriction that the licensee must make payments to the judgment creditor on a schedule determined by the board to be reasonable and within the financial capability of the osteopathic physician. Notwithstanding any other disciplinary penalty imposed, the disciplinary penalty may include suspension of the license for a period not to exceed 5 years. In the event that an agreement to satisfy a judgment has been met, the board shall remove any restriction on the license.

5.  The licensee has completed a form supplying necessary information as required by the department.

A licensee who meets the requirements of this paragraph shall be required either to post notice in the form of a sign prominently displayed in the reception area and clearly noticeable by all patients or to provide a written statement to any person to whom medical services are being provided. Such sign or statement shall state: "Under Florida law, osteopathic physicians are generally required to carry medical malpractice insurance or otherwise demonstrate financial responsibility to cover potential claims for medical malpractice. YOUR OSTEOPATHIC PHYSICIAN HAS DECIDED NOT TO CARRY MEDICAL MALPRACTICE INSURANCE. This is permitted under Florida law subject to certain conditions. Florida law imposes strict penalties against noninsured osteopathic physicians who fail to satisfy adverse judgments arising from claims of medical malpractice. This notice is provided pursuant to Florida law."

(6)  Any deceptive, untrue, or fraudulent representation by the licensee with respect to any provision of this section shall result in permanent disqualification from any exemption to mandated financial responsibility as provided in this section and shall constitute grounds for disciplinary action under s. 459.015.

(7)  Any licensee who relies on any exemption from the financial responsibility requirement shall notify the department in writing of any change of circumstance regarding his or her qualifications for such exemption and shall demonstrate that he or she is in compliance with the requirements of this section.

(8)  If a physician is either a resident physician, assistant resident physician, or intern in an approved postgraduate training program, as defined by the board's rules, and is supervised by a physician who is participating in the Florida Birth-Related Neurological Injury Compensation Plan, such resident physician, assistant resident physician, or intern is deemed to be a participating physician without the payment of the assessment set forth in s. 766.314(4).

(9)  Notwithstanding any other provision of this section, the department shall suspend the license of any osteopathic physician against whom has been entered a final judgment, arbitration award, or other order or who has entered into a settlement agreement to pay damages arising out of a claim for medical malpractice, if all appellate remedies have been exhausted and payment up to the amounts required by this section has not been made within 30 days after the entering of such judgment, award, or order or agreement, until proof of payment is received by the department or a payment schedule has been agreed upon by the osteopathic physician and the claimant and presented to the department. This subsection does not apply to an osteopathic physician who has met the financial responsibility requirements in paragraphs (1)(b) and (2)(b).

(10)  The board shall adopt rules to implement the provisions of this section.

History.--ss. 28, 50, ch. 85-175; ss. 48, 67, ch. 86-160; ss. 28, 29, ch. 86-290; s. 32, ch. 88-1; s. 11, ch. 88-277; s. 7, ch. 89-162; s. 3, ch. 90-158; s. 184, ch. 91-108; s. 61, ch. 91-220; s. 4, ch. 91-429; s. 111, ch. 94-218; s. 220, ch. 96-410; s. 1096, ch. 97-103; s. 145, ch. 97-237; s. 102, ch. 97-261; s. 32, ch. 97-264; s. 21, ch. 97-273; s. 10, ch. 98-166; s. 117, ch. 2000-153; s. 24, ch. 2001-277; s. 24, ch. 2003-416.

¹Note.--

A.  Section 24, ch. 2003-416, amended s. 459.0085 "[e]ffective [August 14, 2003] and applying to claims accruing on or after that date."

B.  Section 86, ch. 2003-416, provides that "[i]t is the intent of the Legislature to apply the provisions of this act to prior medical incidents, to the extent such application is not prohibited by the State Constitution or Federal Constitution, except that the changes to chapter 766, Florida Statutes, shall apply only to any medical incident for which a notice of intent to initiate litigation is mailed on or after the effective date of this act."

²Note.--Redesignated as s. 768.28(16) by s. 67, ch. 2003-416.

459.009  Inactive status.--

(1)  A license or certificate that has become inactive may be reactivated under s. 459.008 or s. 459.022 upon application to the department. The board shall prescribe by rule continuing education requirements as a condition of reactivating a license. The continuing education requirements for reactivating a license or certificate may not be fewer than 20 classroom hours for each year the license or certificate was inactive.

(2)  The board shall adopt rules relating to reactivation of licenses or certificates that have become inactive and for the renewal of inactive licenses and certificates.

(3)(a)  The department may not reactivate a license or certificate unless the inactive or delinquent licensee or certificateholder has paid any applicable biennial renewal or delinquency fee, or both, and a reactivation fee.

(b)  The board shall prescribe by rule an application fee for inactive status, a biennial renewal fee for inactive status, a delinquency fee, and a fee for the reactivation of a license or certificate. None of these fees may exceed the biennial renewal fee established by the board for an active license or certificate.

History.--ss. 1, 6, ch. 79-230; s. 303, ch. 81-259; ss. 2, 3, ch. 81-318; s. 97, ch. 83-329; ss. 10, 27, 29, ch. 86-290; s. 4, ch. 91-429; s. 3, ch. 92-22; s. 167, ch. 94-119.

459.0092  Fees.--The board shall set fees according to the following schedule:

(1)  The fee for application or certification pursuant to ss. 459.007, 459.0075, and 459.0077 shall not exceed $500.

(2)  The fee for application and examination pursuant to s. 459.006 shall not exceed $175 plus the actual per applicant cost to the department for purchase of the examination from the National Board of Osteopathic Medical Examiners or a similar national organization.

(3)  The fee for biennial renewal of licensure or certification shall not exceed $500.

History.--ss. 11, 29, ch. 86-290; s. 33, ch. 88-1; s. 5, ch. 88-205; s. 27, ch. 89-162; s. 4, ch. 91-429; s. 89, ch. 92-149.

459.011  Privileges, obligations, and status of osteopathic physicians.--

(1)  Osteopathic physicians shall observe and be subject to all state and municipal regulations relative to reporting births and deaths and all matters pertaining to the public health, with equal rights and obligations as physicians of other schools of medicine, and such reports shall be accepted by the officers of the departments to which the same are made.

(2)  Osteopathic physicians licensed under this chapter shall have the same rights as physicians and surgeons of other schools of medicine with respect to the treatment of cases or holding of offices in public institutions.

(3)  It is the intent and purpose of this chapter to grant to osteopathic physicians the right to practice as taught and practiced in the standard colleges of osteopathic medicine.

(4)(a)  For the purposes of this subsection, "licensee" means a physician licensed under chapter 458 or an osteopathic physician licensed under this chapter.

(b)  It is the policy of this state that osteopathic physicians licensed under this chapter be accorded equal professional status and privileges as physicians licensed under chapter 458.

(c)  Whenever the health facility staffing requirements for staff or department privileges mandate that the licensee who has been granted privileges be certified by an approved specialty board of the American Board of Medical Specialties, the health facility staffing requirements or department privileges shall be construed to also include a licensee who has achieved certification by an equivalent board of the American Osteopathic Association.

(d)  Whenever an entity that contracts with licensees to provide managed care or risk-based care requires that the licensee who is responsible for the contract be certified by the American Board of Medical Specialties, the contract reference to the American Board of Medical Specialties shall be construed to also include the American Osteopathic Association when the contracting licensee is an osteopathic physician.

(e)  Nothing in this subsection shall preclude an entity that contracts with licensees to provide managed care or risk-based care from establishing controls that are designed to ensure the achievement and maintenance of high standards of professional and ethical practices, including a provision that all members of the licensee's staff be required to demonstrate their ability to perform surgical and other procedures competently and to the satisfaction of an appropriate committee or committees at the time of original application for appointment and at least every 2 years thereafter.

(f)  No health facility may adopt written bylaws in accordance with legal requirements that in any way are construed to circumvent the intent of the Legislature or any other nondiscriminatory provisions contained in either chapter 458 or this chapter.

History.--ss. 1, 6, ch. 79-230; ss. 2, 3, ch. 81-318; ss. 27, 29, ch. 86-290; s. 4, ch. 91-429; s. 1, ch. 96-147.

459.012  Itemized patient statement.--Whenever an osteopathic physician licensed under this chapter renders professional services to a patient, the osteopathic physician is required, upon request, to submit to the patient, the patient's insurer, or the administrative agency for any federal or state health program under which the patient is entitled to benefits an itemized statement of the specific services rendered and the charge for each, no later than the osteopathic physician's next regular billing cycle which follows the fifth day after the rendering of professional services. An osteopathic physician may not condition the furnishing of an itemized statement upon prior payment of the bill. Whenever the itemized statement is submitted to the patient's insurer or the administrative agency, a copy of the itemized statement shall simultaneously be provided to the patient. Such copy of the itemized statement which is sent to the patient shall, in boldfaced letters, state that: "THIS IS A DUPLICATE COPY OF A STATEMENT SUBMITTED TO YOUR INSURER OR OTHER AGENCY."

History.--s. 4, ch. 79-198; s. 2, ch. 81-318; ss. 13, 27, 29, ch. 86-290; s. 4, ch. 91-429.

459.0122  Patient records; termination of osteopathic physician's practice.--The board shall provide by rule for the handling of the medical records of an osteopathic physician licensed under this chapter which pertain to the osteopathic physician's patients and which are in existence at the time an osteopathic physician sells or otherwise terminates a practice. The rules shall provide for notification of the patient and for an opportunity for the patient to request the transfer to the patient or another physician of the patient's records upon payment of actual costs for such transfer.

History.--ss. 14, 29, ch. 86-290; s. 4, ch. 91-429.

459.0125  Breast cancer; information on treatment alternatives.--

(1)  DEFINITION.--As used in this section, the term "medically viable," as applied to treatment alternatives, means modes of treatment generally considered by the medical profession to be within the scope of current, acceptable standards, including treatment alternatives described in the written summary prepared by the Florida Cancer Control and Research Advisory Council in accordance with s. 1004.435(4)(m).

(2)  COMMUNICATION OF TREATMENT ALTERNATIVES.--It is the obligation of every physician treating a patient who is, or in the judgment of the physician is at high risk of being, diagnosed as having breast cancer to inform such patient of the medically viable treatment alternatives available to such patient; to describe such treatment alternatives; and to explain the relative advantages, disadvantages, and risks associated with the treatment alternatives to the extent deemed necessary to allow the patient to make a prudent decision regarding such treatment options. In compliance with this subsection:

(a)  The physician may, in her or his discretion:

1.  Orally communicate such information directly to the patient or the patient's legal representative;

2.  Provide the patient or the patient's legal representative with a copy of the written summary prepared in accordance with s. 1004.435(4)(m) and express her or his willingness to discuss the summary with the patient or the patient's legal representative; or

3.  Both communicate such information directly and provide a copy of the written summary to the patient or the patient's legal representative for further consideration and possible later discussion.

(b)  In providing such information, the physician shall take into consideration the emotional state of the patient, the physical state of the patient, and the patient's ability to understand the information.

(c)  The physician may, in her or his discretion and without restriction, recommend any mode of treatment which is in the physician's judgment the best treatment for the patient.

Nothing in this subsection shall reduce other provisions of law regarding informed consent.

(3)  RECORDS.--Every physician treating a patient who is, or in the judgment of the physician is at high risk of being, diagnosed as having breast cancer shall indicate on such patient's medical record compliance or noncompliance with the provisions of subsection (2).

History.--s. 4, ch. 84-222; s. 1, ch. 85-65; ss. 27, 29, ch. 86-290; s. 3, ch. 90-314; s. 62, ch. 91-220; s. 4, ch. 91-429; s. 2, ch. 93-267; s. 216, ch. 97-103; s. 1013, ch. 2002-387.

459.013  Penalty for violations.--

(1)  Each of the following acts constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084:

(a)  The practice of osteopathic medicine, or an attempt to practice osteopathic medicine, without an active license or certificate issued pursuant to this chapter.

(b)  The practice of osteopathic medicine by a person holding a limited license, osteopathic faculty certificate, or other certificate issued under this chapter beyond the scope of practice authorized for such licensee or certificateholder.

(c)  Attempting to obtain or obtaining a license to practice osteopathic medicine by knowing misrepresentation.

(d)  Attempting to obtain or obtaining a position as an osteopathic medical practitioner or osteopathic medical resident in a clinic or hospital through knowing misrepresentation of education, training, or experience.

(2)  Each of the following acts constitutes a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083:

(a)  Knowingly concealing information relating to violations of this chapter.

(b)  Making any willfully false oath or affirmation whenever an oath or affirmation is required by this chapter.

(c)  The practice of medicine as a resident or intern without holding a valid current registration pursuant to s. 459.021.

(3)  Each of the following constitutes a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083:

(a)  Fraudulently altering, defacing, or falsifying any records relating to patient care or treatment, including, but not limited to, patient histories, examination results, and test results.

(b)  Referring any patient, for health care goods or services, to any partnership, firm, corporation, or other business entity in which the physician or the physician's employer has an equity interest of 10 percent or more unless, prior to such referral, the physician notifies the patient of her or his financial interest and of the patient's right to obtain such goods or services at the location of the patient's choice. This section shall not apply to the following types of equity interest:

1.  The ownership of registered securities issued by a publicly held corporation or the ownership of securities issued by a publicly held corporation, the shares of which are traded on a national exchange or the over-the-counter market;

2.  A physician's own practice, whether the physician is a sole practitioner or part of a group, when the health care good or service is prescribed or provided solely for the physician's own patients and is provided or performed by the physician or under the physician's supervision; or

3.  An interest in real property resulting in a landlord-tenant relationship between the physician and the entity in which the equity interest is held, unless the rent is determined, in whole or in part, by the business volume or profitability of the tenant or is otherwise unrelated to fair market value.

(c)  Paying or receiving any commission, bonus, kickback, or rebate or engaging in any split-fee arrangement in any form whatsoever with a physician, organization, agency, person, partnership, firm, corporation, or other business entity for patients referred to providers of health care goods and services, including, but not limited to, hospitals, nursing homes, clinical laboratories, ambulatory surgical centers, or pharmacies. The provisions of this paragraph shall not be construed to prevent a physician from receiving a fee for professional consultation services.

History.--ss. 1, 6, ch. 79-230; ss. 2, 3, ch. 81-318; s. 33, ch. 85-175; ss. 15, 27, 29, ch. 86-290; s. 2, ch. 90-254; s. 253, ch. 91-224; s. 4, ch. 91-429; s. 217, ch. 97-103; s. 49, ch. 2000-318.

459.0135  Drugs to treat obesity; rules establishing guidelines.--The Board of Osteopathic Medicine shall adopt rules to establish practice guidelines for physicians to safely prescribe phentermine, fenfluramine, and other drugs used to treat obesity.

History.--s. 189, ch. 97-264.

459.0141  Sexual misconduct in the practice of osteopathic medicine.--The osteopathic physician-patient relationship is founded on mutual trust. Sexual misconduct in the practice of osteopathic medicine means violation of the osteopathic physician-patient relationship through which the osteopathic physician uses the relationship to induce or attempt to induce the patient to engage, or to engage or attempt to engage the patient, in sexual activity outside the scope of the practice or the scope of generally accepted examination or treatment of the patient. Sexual misconduct in the practice of osteopathic medicine is prohibited.

History.--ss. 13, 17, ch. 89-374; s. 4, ch. 91-429.

459.0145  Concerted effort to refuse emergency room treatment to patients; penalties.--

(1)  A physician licensed pursuant to this chapter may not instigate or engage in a concerted effort to refuse or get physicians to refuse to render services to a patient or patients in a hospital emergency room by failing to report for duty, absenting themselves from their positions, submitting their resignations, abstaining from the full and faithful performance of their medical duties, or otherwise causing conduct that adversely affects the services of the hospital. For the purposes of this subsection, the term "concerted" means contrived or arranged by agreement, planned or devised together, or done or performed together in cooperation.

(2)  If a physician or group of physicians engages in conduct in violation of subsection (1), either the department or the hospital where the conduct occurs may file suit in circuit court to enjoin such conduct.

(a)  Upon such suit being filed, the court shall conduct a hearing, with notice to the department, the board, and all interested parties, at the earliest practicable time. If the plaintiff makes a showing that a violation of subsection (1) is in progress or that there is a clear, real, and present danger that such a violation is about to commence, the court shall issue a temporary injunction enjoining such violation. Upon final hearing, the court shall either make the injunction permanent or dissolve it.

(b)  A physician found to be in contempt of court for violating such an injunction shall be fined an amount considered appropriate by the court but not less than $5,000. In determining the appropriate fine, the court shall objectively consider the extent of services lost to the hospital and its patients.

(3)  A violation by a physician of subsection (1) constitutes ground for disciplinary action against the physician by the board, including the suspension or revocation of her or his license, and subjects the physician to liability for any damages that the hospital or any patient therein sustains as a result of the violation.

History.--s. 34, ch. 88-1; s. 12, ch. 88-277; s. 1, ch. 89-296; s. 4, ch. 91-429; s. 218, ch. 97-103.

¹459.015  Grounds for disciplinary action; action by the board and department.--

(1)  The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

(a)  Attempting to obtain, obtaining, or renewing a license to practice osteopathic medicine or a certificate issued under this chapter by bribery, by fraudulent misrepresentations, or through an error of the department or the board.

(b)  Having a license or the authority to practice osteopathic medicine revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions. The licensing authority's acceptance of a physician's relinquishment of license, stipulation, consent order, or other settlement offered in response to or in anticipation of the filing of administrative charges against the physician shall be construed as action against the physician's license.

(c)  Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of osteopathic medicine or to the ability to practice osteopathic medicine. A plea of nolo contendere shall create a rebuttable presumption of guilt to the underlying criminal charges.

(d)  False, deceptive, or misleading advertising.

(e)  Failing to report to the department or the department's impaired professional consultant any person who the licensee or certificateholder knows is in violation of this chapter or of the rules of the department or the board. A treatment provider, approved pursuant to s. 456.076, shall provide the department or consultant with information in accordance with the requirements of s. 456.076(3), (4), (5), and (6).

(f)  Aiding, assisting, procuring, or advising any unlicensed person to practice osteopathic medicine contrary to this chapter or to a rule of the department or the board.

(g)  Failing to perform any statutory or legal obligation placed upon a licensed osteopathic physician.

(h)  Giving false testimony in the course of any legal or administrative proceedings relating to the practice of medicine or the delivery of health care services.

(i)  Making or filing a report which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing, or inducing another person to do so. Such reports or records shall include only those which are signed in the capacity as a licensed osteopathic physician.

(j)  Paying or receiving any commission, bonus, kickback, or rebate, or engaging in any split-fee arrangement in any form whatsoever with a physician, organization, agency, person, partnership, firm, corporation, or other business entity, for patients referred to providers of health care goods and services, including, but not limited to, hospitals, nursing homes, clinical laboratories, ambulatory surgical centers, or pharmacies. The provisions of this paragraph shall not be construed to prevent an osteopathic physician from receiving a fee for professional consultation services.

(k)  Refusing to provide health care based on a patient's participation in pending or past litigation or participation in any disciplinary action conducted pursuant to this chapter, unless such litigation or disciplinary action directly involves the osteopathic physician requested to provide services.

(l)  Exercising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity. A patient shall be presumed to be incapable of giving free, full, and informed consent to sexual activity with his or her physician.

(m)  Making deceptive, untrue, or fraudulent representations in or related to the practice of osteopathic medicine or employing a trick or scheme in the practice of osteopathic medicine.

(n)  Soliciting patients, either personally or through an agent, through the use of fraud, intimidation, undue influence, or forms of overreaching or vexatious conduct. A solicitation is any communication which directly or implicitly requests an immediate oral response from the recipient.

(o)  Failing to keep legible, as defined by department rule in consultation with the board, medical records that identify the licensed osteopathic physician or the osteopathic physician extender and supervising osteopathic physician by name and professional title who is or are responsible for rendering, ordering, supervising, or billing for each diagnostic or treatment procedure and that justify the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations.

(p)  Fraudulently altering or destroying records relating to patient care or treatment, including, but not limited to, patient histories, examination results, and test results.

(q)  Exercising influence on the patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party which shall include, but not be limited to, the promotion or sale of services, goods, appliances, or drugs.

(r)  Promoting or advertising on any prescription form of a community pharmacy, unless the form shall also state "This prescription may be filled at any pharmacy of your choice."

(s)  Performing professional services which have not been duly authorized by the patient or client or his or her legal representative except as provided in s. 743.064, s. 766.103, or s. 768.13.

(t)  Prescribing, dispensing, administering, supplying, selling, giving, mixing, or otherwise preparing a legend drug, including all controlled substances, other than in the course of the osteopathic physician's professional practice. For the purposes of this paragraph, it shall be legally presumed that prescribing, dispensing, administering, supplying, selling, giving, mixing, or otherwise preparing legend drugs, including all controlled substances, inappropriately or in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the osteopathic physician's professional practice, without regard to his or her intent.

(u)  Prescribing or dispensing any medicinal drug appearing on any schedule set forth in chapter 893 by the osteopathic physician for himself or herself or administering any such drug by the osteopathic physician to himself or herself unless such drug is prescribed for the osteopathic physician by another practitioner authorized to prescribe medicinal drugs.

(v)  Prescribing, ordering, dispensing, administering, supplying, selling, or giving amygdalin (laetrile) to any person.

(w)  Being unable to practice osteopathic medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. In enforcing this paragraph, the department shall, upon a finding of the secretary or the secretary's designee that probable cause exists to believe that the licensee is unable to practice medicine because of the reasons stated in this paragraph, have the authority to issue an order to compel a licensee to submit to a mental or physical examination by physicians designated by the department. If the licensee refuses to comply with such order, the department's order directing such examination may be enforced by filing a petition for enforcement in the circuit court where the licensee resides or does business. The licensee against whom the petition is filed shall not be named or identified by initials in any public court records or documents, and the proceedings shall be closed to the public. The department shall be entitled to the summary procedure provided in s. 51.011. A licensee or certificateholder affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he or she can resume the competent practice of medicine with reasonable skill and safety to patients.

(x)  Gross or repeated malpractice or the failure to practice osteopathic medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s. 766.102 when enforcing this paragraph. As used in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in indemnities being paid in excess of $50,000 each to the claimant in a judgment or settlement and which incidents involved negligent conduct by the osteopathic physician. As used in this paragraph, "gross malpractice" or "the failure to practice osteopathic medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar conditions and circumstances" shall not be construed so as to require more than one instance, event, or act. Nothing in this paragraph shall be construed to require that an osteopathic physician be incompetent to practice osteopathic medicine in order to be disciplined pursuant to this paragraph. A recommended order by an administrative law judge or a final order of the board finding a violation under this paragraph shall specify whether the licensee was found to have committed "gross malpractice," "repeated malpractice," or "failure to practice osteopathic medicine with that level of care, skill, and treatment which is recognized as being acceptable under similar conditions and circumstances," or any combination thereof, and any publication by the board shall so specify.

(y)  Performing any procedure or prescribing any therapy which, by the prevailing standards of medical practice in the community, would constitute experimentation on human subjects, without first obtaining full, informed, and written consent.

(z)  Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he or she is not competent to perform. The board may establish by rule standards of practice and standards of care for particular practice settings, including, but not limited to, education and training, equipment and supplies, medications including anesthetics, assistance of and delegation to other personnel, transfer agreements, sterilization, records, performance of complex or multiple procedures, informed consent, and policy and procedure manuals.

(aa)  Delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified by training, experience, or licensure to perform them.

(bb)  Violating a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the board or department.

(cc)  Conspiring with another licensee or with any other person to commit an act, or committing an act, which would tend to coerce, intimidate, or preclude another licensee from lawfully advertising his or her services.

(dd)  Procuring, or aiding or abetting in the procuring of, an unlawful termination of pregnancy.

(ee)  Presigning blank prescription forms.

(ff)  Prescribing any medicinal drug appearing on Schedule II in chapter 893 by the osteopathic physician for office use.

(gg)  Prescribing, ordering, dispensing, administering, supplying, selling, or giving any drug which is a Schedule II amphetamine or Schedule II sympathomimetic amine drug or any compound thereof, pursuant to chapter 893, to or for any person except for:

1.  The treatment of narcolepsy; hyperkinesis; behavioral syndrome characterized by the developmentally inappropriate symptoms of moderate to severe distractability, short attention span, hyperactivity, emotional lability, and impulsivity; or drug-induced brain dysfunction;

2.  The differential diagnostic psychiatric evaluation of depression or the treatment of depression shown to be refractory to other therapeutic modalities; or

3.  The clinical investigation of the effects of such drugs or compounds when an investigative protocol therefor is submitted to, reviewed, and approved by the board before such investigation is begun.

(hh)  Failing to supervise adequately the activities of those physician assistants, paramedics, emergency medical technicians, advanced registered nurse practitioners, or other persons acting under the supervision of the osteopathic physician.

(ii)  Prescribing, ordering, dispensing, administering, supplying, selling, or giving growth hormones, testosterone or its analogs, human chorionic gonadotropin (HCG), or other hormones for the purpose of muscle building or to enhance athletic performance. For the purposes of this subsection, the term "muscle building" does not include the treatment of injured muscle. A prescription written for the drug products listed above may be dispensed by the pharmacist with the presumption that the prescription is for legitimate medical use.

(jj)  Misrepresenting or concealing a material fact at any time during any phase of a licensing or disciplinary process or procedure.

(kk)  Improperly interfering with an investigation or with any disciplinary proceeding.

(ll)  Failing to report to the department any licensee under chapter 458 or under this chapter who the osteopathic physician or physician assistant knows has violated the grounds for disciplinary action set out in the law under which that person is licensed and who provides health care services in a facility licensed under chapter 395, or a health maintenance organization certificated under part I of chapter 641, in which the osteopathic physician or physician assistant also provides services.

(mm)  Being found by any court in this state to have provided corroborating written medical expert opinion attached to any statutorily required notice of claim or intent or to any statutorily required response rejecting a claim, without reasonable investigation.

(nn)  Advertising or holding oneself out as a board-certified specialist in violation of this chapter.

(oo)  Failing to comply with the requirements of ss. 381.026 and 381.0261 to provide patients with information about their patient rights and how to file a patient complaint.

(pp)  Violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto.

(2)  The board may enter an order denying licensure or imposing any of the penalties in s. 456.072(2) against any applicant for licensure or licensee who is found guilty of violating any provision of subsection (1) of this section or who is found guilty of violating any provision of s. 456.072(1). In determining what action is appropriate, the board must first consider what sanctions are necessary to protect the public or to compensate the patient. Only after those sanctions have been imposed may the disciplining authority consider and include in the order requirements designed to rehabilitate the physician. All costs associated with compliance with orders issued under this subsection are the obligation of the physician.

(3)  In any administrative action against a physician which does not involve revocation or suspension of license, the division shall have the burden, by the greater weight of the evidence, to establish the existence of grounds for disciplinary action. The division shall establish grounds for revocation or suspension of license by clear and convincing evidence.

(4)  The board shall not reinstate the license or certificate of an osteopathic physician, or cause a license or certificate to be issued to a person it has deemed unqualified, until such time as it is satisfied that he or she has complied with all the terms and conditions set forth in the final order and that such person is capable of safely engaging in the practice of osteopathic medicine.

(5)  The board shall, by rule, establish comprehensive guidelines for the disposition of disciplinary cases involving specific types of violations. Such guidelines shall establish offenses and circumstances for which revocation will be presumed to be appropriate, as well as offenses and circumstances for which suspension for particular periods of time will be presumed to be appropriate. The guidelines shall also establish minimum and maximum fines, periods of supervision or probation, or conditions of probation and conditions for reissuance of a license with respect to particular circumstances and offenses. "Gross malpractice," "repeated malpractice," and "failure to practice osteopathic medicine with that level of care, skill, and treatment which is recognized as being acceptable under similar conditions and circumstances" under paragraph (1)(x) shall each be considered distinct types of violations requiring specific individual guidelines.

(6)  Upon the department's receipt from an insurer or self-insurer of a report of a closed claim against an osteopathic physician pursuant to s. 627.912 or from a health care practitioner of a report pursuant to s. 456.049, or upon the receipt from a claimant of a presuit notice against an osteopathic physician pursuant to s. 766.106, the department shall review each report and determine whether it potentially involved conduct by a licensee that is subject to disciplinary action, in which case the provisions of s. 456.073 shall apply. However, if it is reported that an osteopathic physician has had three or more claims with indemnities exceeding $50,000 each within the previous 5-year period, the department shall investigate the occurrences upon which the claims were based and determine if action by the department against the osteopathic physician is warranted.

(7)  Upon the department's receipt from the Agency for Health Care Administration pursuant to s. 395.0197 of the name of an osteopathic physician whose conduct may constitute grounds for disciplinary action by the department, the department shall investigate the occurrences upon which the report was based and determine if action by the department against the osteopathic physician is warranted.

(8)  If any osteopathic physician regulated by the Division of Medical Quality Assurance is guilty of such unprofessional conduct, negligence, or mental or physical incapacity or impairment that the division determines that the osteopathic physician is unable to practice with reasonable skill and safety and presents a danger to patients, the division shall be authorized to maintain an action in circuit court enjoining such osteopathic physician from providing medical services to the public until the osteopathic physician demonstrates the ability to practice with reasonable skill and safety and without danger to patients.

(9)  When an investigation of an osteopathic physician is undertaken, the department shall promptly furnish to the osteopathic physician or his or her attorney a copy of the complaint or document which resulted in the initiation of the investigation. For purposes of this subsection, such documents include, but are not limited to: the pertinent portions of an annual report submitted to the department pursuant to s. 395.0197(6); a report of an adverse incident which is provided to the department pursuant to s. 395.0197; a report of peer review disciplinary action submitted to the department pursuant to s. 395.0193(4) or s. 459.016, provided that the investigations, proceedings, and records relating to such peer review disciplinary action shall continue to retain their privileged status even as to the licensee who is the subject of the investigation, as provided by ss. 395.0193(8) and 459.016(3); a report of a closed claim submitted pursuant to s. 627.912; a presuit notice submitted pursuant to s. 766.106(2); and a petition brought under the Florida Birth-Related Neurological Injury Compensation Plan, pursuant to s. 766.305(2). The osteopathic physician may submit a written response to the information contained in the complaint or document which resulted in the initiation of the investigation within 45 days after service to the osteopathic physician of the complaint or document. The osteopathic physician's written response shall be considered by the probable cause panel.

History.--ss. 1, 6, ch. 79-230; s. 3, ch. 80-354; s. 305, ch. 81-259; ss. 2, 3, ch. 81-318; s. 19, ch. 83-329; s. 2, ch. 85-6; s. 5, ch. 85-175; ss. 16, 27, 29, ch. 86-290; s. 54, ch. 87-225; s. 35, ch. 88-1; s. 13, ch. 88-277; s. 3, ch. 90-44; s. 27, ch. 90-228; s. 3, ch. 90-254; s. 63, ch. 91-220; s. 4, ch. 91-429; s. 40, ch. 92-149; s. 2, ch. 92-178; s. 84, ch. 92-289; s. 29, ch. 95-144; s. 221, ch. 96-410; s. 1097, ch. 97-103; s. 107, ch. 97-261; s. 33, ch. 97-264; s. 38, ch. 98-89; s. 52, ch. 98-166; s. 223, ch. 99-8; s. 103, ch. 99-397; s. 111, ch. 2000-160; ss. 25, 77, ch. 2001-277; s. 27, ch. 2003-416.

¹Note.--Section 86, ch. 2003-416, provides that "[i]t is the intent of the Legislature to apply the provisions of this act to prior medical incidents, to the extent such application is not prohibited by the State Constitution or Federal Constitution, except that the changes to chapter 766, Florida Statutes, shall apply only to any medical incident for which a notice of intent to initiate litigation is mailed on or after the effective date of this act."

¹459.0151  Emergency procedures for disciplinary action.--Notwithstanding any other provision of law to the contrary, no later than 30 days after a third report of a professional liability claim against a licensed osteopathic physician has been submitted, within a 60-month period, as required by ss. 456.049 and 627.912, the Department of Health shall initiate an emergency investigation and the Board of Osteopathic Medicine shall conduct an emergency probable cause hearing to determine whether the physician should be disciplined for a violation of s. 459.015(1)(x) or any other relevant provision of law.

History.--s. 28, ch. 2003-416.

¹Note.--Section 86, ch. 2003-416, provides that "[i]t is the intent of the Legislature to apply the provisions of this act to prior medical incidents, to the extent such application is not prohibited by the State Constitution or Federal Constitution, except that the changes to chapter 766, Florida Statutes, shall apply only to any medical incident for which a notice of intent to initiate litigation is mailed on or after the effective date of this act."

459.0152  Specialties.--An osteopathic physician licensed under this chapter may not hold himself or herself out as a board-certified specialist unless the osteopathic physician has successfully completed the requirements for certification by the American Osteopathic Association or the Accreditation Council on Graduate Medical Education and is certified as a specialist by a certifying agency approved by the board. However, an osteopathic physician may indicate the services offered and may state that his or her practice is limited to one or more types of services when this accurately reflects the scope of practice of the osteopathic physician.

History.--s. 34, ch. 97-264.

459.016  Reports of disciplinary actions by medical organizations.--

(1)  The department shall be notified when any osteopathic physician:

(a)  Has been removed or suspended or has had any other disciplinary action taken by her or his peers within any professional medical association, society, body, or professional standards review organization established pursuant to Pub. L. No. 92-603, s. 249F, or similarly constituted professional organization, whether or not such association, society, body, or organization is local, regional, state, national, or international in scope; or

(b)  Has been disciplined, which shall include allowing an osteopathic physician to resign, by a licensed hospital or medical staff of said hospital for any act that constitutes a violation of this chapter. If a physician resigns or withdraws from privileges when such facility notifies the physician that it is conducting an investigation or inquiry regarding an act which is potentially a violation of this chapter, the facility shall complete its investigation or inquiry and shall notify the department of the physician's resignation or withdrawal from privileges if the completed investigation or inquiry results in a finding that such act constitutes a violation of this chapter for which the facility would have disciplined the physician or allowed her or him to resign or withdraw from privileges.

Within 20 days of receipt of such notification, upon board approval, the department shall notify all hospitals and health maintenance organizations in the state of any disciplinary action which is severe enough for expulsion or resignation reported pursuant to this subsection, identifying the disciplined physician, the action taken, and the reason for such action.

(2)  Any organization taking action as set forth in this section shall report such action to the department within 30 days of its initial occurrence, regardless of the pendency of appeals therefrom. The notification shall identify the disciplined physician, the action taken, and the reason for such action. The department shall investigate the occurrence upon which the report was based and determine if action by the department against the osteopathic physician is warranted. Any organization failing to report such action pursuant to this section shall be subject to a fine assessed by the department in an amount not exceeding $1,000 for the first offense and not exceeding $5,000 for any offense thereafter.

(3)  Any organization taking action as set forth in this section shall, upon department subpoena, provide copies of the records concerning the action to the department. However, those records shall be used solely for the purpose of the department and the board in disciplinary proceedings. The records shall otherwise be confidential and exempt from s. 119.07(1). These records shall not be subject to discovery or introduction into evidence in any administrative or civil action.

(4)  There shall be no monetary liability on the part of, and no cause of action for damages shall arise against, the department or any association, society, body, organization, hospital, hospital medical staff, or hospital disciplinary body or its agents, investigators, witnesses, or employees or any other person for any action taken without intentional fraud in carrying out the provisions of this section. However, this exemption applies only to actions taken in providing notice pursuant to this section.

History.--ss. 1, 6, ch. 79-230; ss. 2, 3, ch. 81-318; ss. 18, 27, 29, ch. 86-290; s. 15, ch. 89-374; s. 13, ch. 91-140; s. 4, ch. 91-429; s. 314, ch. 96-406; s. 1098, ch. 97-103; s. 53, ch. 98-166.

459.017  Osteopathic physician's consent; handwriting samples; mental or physical examinations.--Every osteopathic physician who accepts a license or certificate to practice osteopathic medicine in this state shall, by so accepting the license or certificate or by making and filing a renewal of licensure or certification to practice in this state, be deemed to have given her or his consent during a lawful investigation of a complaint to the following:

(1)  To render a handwriting sample to an agent of the department and, further, to have waived any objections to its use as evidence against her or him.

(2)  To waive the confidentiality and authorize the preparation and release of all medical reports pertaining to the mental or physical condition of the osteopathic physician herself or himself when the department has reason to believe that a violation of this chapter has occurred and when the department issues an order, based on the need for additional information, to produce such medical reports for the time period relevant to the complaint. As used in this section, the term "medical reports" means a compilation of medical treatment of the osteopathic physician herself or himself, including symptoms, diagnosis, treatment prescribed, relevant history, and progress.

(3)  To waive any objection to the admissibility of the medical reports as constituting privileged communications. Such material maintained by the department shall remain confidential and exempt from s. 119.07(1) until probable cause is found and an administrative complaint issued.

History.--ss. 1, 6, ch. 79-230; ss. 2, 3, ch. 81-318; s. 20, ch. 83-329; ss. 19, 27, 29, ch. 86-290; s. 14, ch. 91-140; s. 4, ch. 91-429; s. 315, ch. 96-406; s. 1099, ch. 97-103.

459.018  Search warrants for certain violations.--When the department has reason to believe that violations of s. 459.015(1)(t) or s. 459.015(1)(u) have occurred or are occurring, its agents or other duly authorized persons may search an osteopathic physician's place of practice for purposes of securing such evidence as may be needed for prosecution. Such evidence shall not include any medical records of patients unless pursuant to the patient's written consent. Notwithstanding the consent of the patient, such records maintained by the department are confidential and exempt from s. 119.07(1). This section shall not limit the psychotherapist-patient privileges of s. 90.503. Prior to a search, the department shall secure a search warrant from any judge authorized by law to issue search warrants. The search warrant shall be issued upon probable cause, supported by oath or affirmation particularly describing the things to be seized. The application for the warrant shall be sworn to and subscribed, and the judge may require further testimony from witnesses, supporting affidavits, or depositions in writing to support the application. The application and supporting information, if required, must set forth the facts tending to establish the grounds of the application or probable cause that they exist. If the judge is satisfied that probable cause exists, he or she shall issue a search warrant signed by him or her with the judge's name of office to any agent or other person duly authorized by the department to execute process, commanding the agent or person to search the place described in the warrant for the property specified. The search warrant shall be served only by the agent or person mentioned in it and by no other person except an aide of the agent or person when such agent or person is present and acting in its execution.

History.--ss. 1, 6, ch. 79-230; ss. 2, 3, ch. 81-318; ss. 20, 27, 29, ch. 86-290; s. 15, ch. 91-140; s. 4, ch. 91-429; s. 316, ch. 96-406; s. 1100, ch. 97-103; s. 118, ch. 2000-153.

459.019  Subpoena of certain records.--Notwithstanding the provisions of s. 456.057, the department may issue subpoenas duces tecum requiring the names and addresses of some or all of the patients of an osteopathic physician against whom a complaint has been filed pursuant to s. 456.073.

History.--ss. 1, 6, ch. 79-230; s. 308, ch. 81-259; ss. 2, 3, ch. 81-318; ss. 27, 29, ch. 86-290; s. 4, ch. 91-429; s. 54, ch. 98-166; s. 112, ch. 2000-160.

459.021  Registration of resident physicians, interns, and fellows; list of hospital employees; penalty.--

(1)  Any person who holds a degree of Doctor of Osteopathic Medicine from a college of osteopathic medicine recognized and approved by the American Osteopathic Association who desires to practice as a resident physician, assistant resident physician, house physician, intern, or fellow in fellowship training which leads to subspecialty board certification in this state, or any person desiring to practice as a resident physician, assistant resident physician, house physician, intern, or fellow in fellowship training in a teaching hospital in this state as defined in s. 408.07(44) or s. 395.805(2), who does not hold an active license issued under this chapter shall apply to the department to be registered, on an application provided by the department, within 30 days of commencing such a training program and shall remit a fee not to exceed $300 as set by the board.

(2)  Any person required to be registered under this section shall renew such registration annually. Such registration shall be terminated upon the registrant's receipt of an active license issued under this chapter. No person shall be registered under this section for an aggregate of more than 5 years, unless additional years are approved by the board.

(3)  Every hospital or teaching hospital having employed or contracted with or utilized the services of a person who holds a degree of Doctor of Osteopathic Medicine from a college of osteopathic medicine recognized and approved by the American Osteopathic Association as a resident physician, assistant resident physician, house physician, intern, or fellow in fellowship training registered under this section shall designate a person who shall furnish, on dates designated by the board, in consultation with the department, to the department a list of all such persons who have served in such hospital during the preceding 6-month period. The chief executive officer of each such hospital shall provide the executive director of the board with the name, title, and address of the person responsible for filing such reports.

(4)  The registration may be revoked or the department may refuse to issue any registration for any cause which would be a ground for its revocation or refusal to issue a license to practice osteopathic medicine, as well as on the following grounds:

(a)  Omission of the name of an intern, resident physician, assistant resident physician, house physician, or fellow in fellowship training from the list of employees required by subsection (3) to be furnished to the department by the hospital or teaching hospital served by the employee.

(b)  Practicing osteopathic medicine outside of a bona fide hospital training program.

(5)  It is a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, for any hospital or teaching hospital, and also for the superintendent, administrator, and other person or persons having administrative authority in such hospital:

(a)  To employ the services in such hospital of any person listed in subsection (3), unless such person is registered with the department under the law or the holder of a license to practice osteopathic medicine under this chapter.

(b)  To fail to furnish to the department the list and information required by subsection (3).

(6)  Any person desiring registration pursuant to this section shall meet all the requirements of s. 459.0055.

(7)  The board shall promulgate rules pursuant to ss. 120.536(1) and 120.54 as necessary to implement this section.

(8)  Notwithstanding any provision of this section or s. 120.52 to the contrary, any person who is registered under this section is subject to the provisions of s. 459.015.

(9)  A person registered as a resident physician under this section may in the normal course of his or her employment prescribe medicinal drugs described in schedules set out in chapter 893 when:

(a)  The person prescribes such medicinal drugs through use of a Drug Enforcement Administration number issued to the hospital or teaching hospital by which the person is employed or at which the person's services are used;

(b)  The person is identified by a discrete suffix to the identification number issued to such hospital; and

(c)  The use of the institutional identification number and individual suffixes conforms to the requirements of the federal Drug Enforcement Administration.

History.--ss. 1, 6, ch. 79-230; ss. 2, 3, ch. 81-318; ss. 21, 27, 29, ch. 86-290; s. 4, ch. 90-254; s. 4, ch. 91-429; s. 90, ch. 92-149; s. 30, ch. 97-264; s. 249, ch. 98-166; s. 41, ch. 2000-318.

459.022  Physician assistants.--

(1)  LEGISLATIVE INTENT.--

(a)  The purpose of this section is to encourage more effective utilization of the skills of osteopathic physicians or groups of osteopathic physicians by enabling them to delegate health care tasks to qualified assistants when such delegation is consistent with the patient's health and welfare.

(b)  In order that maximum skills may be obtained within a minimum time period of education, a physician assistant shall be specialized to the extent that she or he can operate efficiently and effectively in the specialty areas in which she or he has been trained or is experienced.

(c)  The purpose of this section is to encourage the utilization of physician assistants by osteopathic physicians and to allow for innovative development of programs for the education of physician assistants.

(2)  DEFINITIONS.--As used in this section:

(a)  "Approved program" means a program, formally approved by the boards, for the education of physician assistants.

(b)  "Boards" means the Board of Medicine and the Board of Osteopathic Medicine.

(c)  "Council" means the Council on Physician Assistants.

(d)  "Trainee" means a person who is currently enrolled in an approved program.

(e)  "Physician assistant" means a person who is a graduate of an approved program or its equivalent or meets standards approved by the boards and is licensed to perform medical services delegated by the supervising physician.

(f)  "Supervision" means responsible supervision and control. Except in cases of emergency, supervision requires the easy availability or physical presence of the licensed physician for consultation and direction of the actions of the physician assistant. For the purposes of this definition, the term "easy availability" includes the ability to communicate by way of telecommunication. The boards shall establish rules as to what constitutes responsible supervision of the physician assistant.

(g)  "Proficiency examination" means an entry-level examination approved by the boards, including, but not limited to, those examinations administered by the National Commission on Certification of Physician Assistants.

(h)  "Continuing medical education" means courses recognized and approved by the boards, the American Academy of Physician Assistants, the American Medical Association, the American Osteopathic Association, or the Accreditation Council on Continuing Medical Education.

(3)  PERFORMANCE OF SUPERVISING PHYSICIAN.--Each physician or group of physicians supervising a licensed physician assistant must be qualified in the medical areas in which the physician assistant is to perform and shall be individually or collectively responsible and liable for the performance and the acts and omissions of the physician assistant. A physician may not supervise more than four currently licensed physician assistants at any one time.

(4)  PERFORMANCE OF PHYSICIAN ASSISTANTS.--

(a)  The boards shall adopt, by rule, the general principles that supervising physicians must use in developing the scope of practice of a physician assistant under direct supervision and under indirect supervision. These principles shall recognize the diversity of both specialty and practice settings in which physician assistants are used.

(b)  This chapter does not prevent third-party payors from reimbursing employers of physician assistants for covered services rendered by licensed physician assistants.

(c)  Licensed physician assistants may not be denied clinical hospital privileges, except for cause, so long as the supervising physician is a staff member in good standing.

(d)  A supervisory physician may delegate to a licensed physician assistant, pursuant to a written protocol, the authority to act according to s. 154.04(1)(c). Such delegated authority is limited to the supervising physician's practice in connection with a county health department as defined and established pursuant to chapter 154. The boards shall adopt rules governing the supervision of physician assistants by physicians in county health departments.

(e)  A supervisory physician may delegate to a fully licensed physician assistant the authority to prescribe any medication used in the supervisory physician's practice unless such medication is listed on the formulary created pursuant to s. 458.347. A fully licensed physician assistant may only prescribe such medication under the following circumstances:

1.  A physician assistant must clearly identify to the patient that she or he is a physician assistant. Furthermore, the physician assistant must inform the patient that the patient has the right to see the physician prior to any prescription being prescribed by the physician assistant.

2.  The supervisory physician must notify the department of her or his intent to delegate, on a department-approved form, before delegating such authority and notify the department of any change in prescriptive privileges of the physician assistant.

3.  The physician assistant must file with the department, before commencing to prescribe, evidence that she or he has completed a continuing medical education course of at least 3 classroom hours in prescriptive practice, conducted by an accredited program approved by the boards, which course covers the limitations, responsibilities, and privileges involved in prescribing medicinal drugs, or evidence that she or he has received education comparable to the continuing education course as part of an accredited physician assistant training program.

4.  The physician assistant must file with the department, before commencing to prescribe, evidence that the physician assistant has a minimum of 3 months of clinical experience in the specialty area of the supervising physician.

5.  The physician assistant must file with the department a signed affidavit that she or he has completed a minimum of 10 continuing medical education hours in the specialty practice in which the physician assistant has prescriptive privileges with each licensure renewal application.

6.  The department shall issue a license and a prescriber number to the physician assistant granting authority for the prescribing of medicinal drugs authorized within this paragraph upon completion of the foregoing requirements.

7.  The prescription must be written in a form that complies with chapter 499 and must contain, in addition to the supervisory physician's name, address, and telephone number, the physician assistant's prescriber number. Unless it is a drug sample dispensed by the physician assistant, the prescription must be filled in a pharmacy permitted under chapter 465, and must be dispensed in that pharmacy by a pharmacist licensed under chapter 465. The appearance of the prescriber number creates a presumption that the physician assistant is authorized to prescribe the medicinal drug and the prescription is valid.

8.  The physician assistant must note the prescription in the appropriate medical record, and the supervisory physician must review and sign each notation. For dispensing purposes only, the failure of the supervisory physician to comply with these requirements does not affect the validity of the prescription.

9.  This paragraph does not prohibit a supervisory physician from delegating to a physician assistant the authority to order medication for a hospitalized patient of the supervisory physician.

This paragraph does not apply to facilities licensed pursuant to chapter 395.

(5)  PERFORMANCE BY TRAINEES.--Notwithstanding any other law, a trainee may perform medical services when such services are rendered within the scope of an approved program.

(6)  PROGRAM APPROVAL.--

(a)  The boards shall approve programs, based on recommendations by the council, for the education and training of physician assistants which meet standards established by rule of the boards. The council may recommend only those physician assistant programs that hold full accreditation or provisional accreditation from the Commission on Accreditation of Allied Health Programs or its successor organization.

(b)  The boards shall adopt and publish standards to ensure that such programs operate in a manner that does not endanger the health or welfare of the patients who receive services within the scope of the programs. The boards shall review the quality of the curricula, faculties, and facilities of such programs and take whatever other action is necessary to determine that the purposes of this section are being met.

(7)  PHYSICIAN ASSISTANT LICENSURE.--

(a)  Any person desiring to be licensed as a physician assistant must apply to the department. The department shall issue a license to any person certified by the council as having met the following requirements:

1.  Is at least 18 years of age.

2.  Has satisfactorily passed a proficiency examination by an acceptable score established by the National Commission on Certification of Physician Assistants. If an applicant does not hold a current certificate issued by the National Commission on Certification of Physician Assistants and has not actively practiced as a physician assistant within the immediately preceding 4 years, the applicant must retake and successfully complete the entry-level examination of the National Commission on Certification of Physician Assistants to be eligible for licensure.

3.  Has completed the application form and remitted an application fee not to exceed $300 as set by the boards. An application for licensure made by a physician assistant must include:

a.  A certificate of completion of a physician assistant training program specified in subsection (6).

b.  A sworn statement of any prior felony convictions.

c.  A sworn statement of any previous revocation or denial of licensure or certification in any state.

d.  Two letters of recommendation.

(b)  The licensure must be renewed biennially. Each renewal must include:

1.  A renewal fee not to exceed $500 as set by the boards.

2.  A sworn statement of no felony convictions in the previous 2 years.

(c)  Each licensed physician assistant shall biennially complete 100 hours of continuing medical education or shall hold a current certificate issued by the National Commission on Certification of Physician Assistants.

(d)  Upon employment as a physician assistant, a licensed physician assistant must notify the department in writing within 30 days after such employment or after any subsequent changes in the supervising physician. The notification must include the full name, Florida medical license number, specialty, and address of the supervising physician.

(e)  Notwithstanding subparagraph (a)2., the department may grant to a recent graduate of an approved program, as specified in subsection (6), a temporary license to expire upon receipt of scores of the proficiency examination administered by the National Commission on Certification of Physician Assistants. Between meetings of the council, the department may grant a temporary license to practice to physician assistant applicants based on the completion of all temporary licensure requirements. All such administratively issued licenses shall be reviewed and acted on at the next regular meeting of the council. The recent graduate may be licensed prior to employment, but must comply with paragraph (d). An applicant who has passed the proficiency examination may be granted permanent licensure. An applicant failing the proficiency examination is no longer temporarily licensed, but may reapply for a 1-year extension of temporary licensure. An applicant may not be granted more than two temporary licenses and may not be licensed as a physician assistant until she or he passes the examination administered by the National Commission on Certification of Physician Assistants. As prescribed by board rule, the council may require an applicant who does not pass the licensing examination after five or more attempts to complete additional remedial education or training. The council shall prescribe the additional requirements in a manner that permits the applicant to complete the requirements and be reexamined within 2 years after the date the applicant petitions the council to retake the examination a sixth or subsequent time.

(f)  The Board of Osteopathic Medicine may impose any of the penalties authorized under ss. 456.072 and 459.015(2) upon a physician assistant if the physician assistant or the supervising physician has been found guilty of or is being investigated for any act that constitutes a violation of this chapter or chapter 456.

(8)  DELEGATION OF POWERS AND DUTIES.--The boards may delegate such powers and duties to the council as they may deem proper.

(9)  COUNCIL ON PHYSICIAN ASSISTANTS.--The Council on Physician Assistants is created within the department.

(a)  The council shall consist of five members appointed as follows:

1.  The chairperson of the Board of Medicine shall appoint three members who are physicians and members of the Board of Medicine. One of the physicians must supervise a physician assistant in the physician's practice.

2.  The chairperson of the Board of Osteopathic Medicine shall appoint one member who is a physician and a member of the Board of Osteopathic Medicine.

3.  The secretary of the department or her or his designee shall appoint a fully licensed physician assistant licensed under chapter 458 or this chapter.

(b)  Two of the members appointed to the council must be physicians who supervise physician assistants in their practice. Members shall be appointed to terms of 4 years, except that of the initial appointments, two members shall be appointed to terms of 2 years, two members shall be appointed to terms of 3 years, and one member shall be appointed to a term of 4 years, as established by rule of the boards. Council members may not serve more than two consecutive terms. The council shall annually elect a chairperson from among its members.

(c)  The council shall:

1.  Recommend to the department the licensure of physician assistants.

2.  Develop all rules regulating the use of physician assistants by physicians under chapter 458 and this chapter, except for rules relating to the formulary developed under s. 458.347. The council shall also develop rules to ensure that the continuity of supervision is maintained in each practice setting. The boards shall consider adopting a proposed rule developed by the council at the regularly scheduled meeting immediately following the submission of the proposed rule by the council. A proposed rule submitted by the council may not be adopted by either board unless both boards have accepted and approved the identical language contained in the proposed rule. The language of all proposed rules submitted by the council must be approved by both boards pursuant to each respective board's guidelines and standards regarding the adoption of proposed rules. If either board rejects the council's proposed rule, that board must specify its objection to the council with particularity and include any recommendations it may have for the modification of the proposed rule.

3.  Make recommendations to the boards regarding all matters relating to physician assistants.

4.  Address concerns and problems of practicing physician assistants in order to improve safety in the clinical practices of licensed physician assistants.

(d)  When the council finds that an applicant for licensure has failed to meet, to the council's satisfaction, each of the requirements for licensure set forth in this section, the council may enter an order to:

1.  Refuse to certify the applicant for licensure;

2.  Approve the applicant for licensure with restrictions on the scope of practice or license; or

3.  Approve the applicant for conditional licensure. Such conditions may include placement of the licensee on probation for a period of time and subject to such conditions as the council may specify, including but not limited to, requiring the licensee to undergo treatment, to attend continuing education courses, to work under the direct supervision of a physician licensed in this state, or to take corrective action.

(10)  INACTIVE AND DELINQUENT STATUS.--A license on inactive or delinquent status may be reactivated only as provided in s. 456.036.

(11)  PENALTY.--Any person who has not been licensed by the council and approved by the department and who holds herself or himself out as a physician assistant or who uses any other term in indicating or implying that she or he is a physician assistant commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.084 or by a fine not exceeding $5,000.

(12)  DENIAL, SUSPENSION, OR REVOCATION OF LICENSURE.--The boards may deny, suspend, or revoke a physician assistant license if a board determines that the physician assistant has violated this chapter.

(13)  RULES.--The boards shall adopt rules to implement this section, including rules detailing the contents of the application for licensure and notification pursuant to subsection (7) and rules to ensure both the continued competency of physician assistants and the proper utilization of them by physicians or groups of physicians.

(14)  EXISTING PROGRAMS.--This section does not eliminate or supersede existing laws relating to other paramedical professions or services and is supplemental to all such existing laws relating to the licensure and practice of paramedical professions.

(15)  LIABILITY.--Each supervising physician using a physician assistant is liable for any acts or omissions of the physician assistant acting under the physician's supervision and control.

(16)  LEGAL SERVICES.--Legal services shall be provided to the council pursuant to s. 456.009(1).

(17)  FEES.--The department shall allocate the fees collected under this section to the council.

History.--ss. 1, 6, ch. 79-230; s. 309, ch. 81-259; ss. 2, 3, ch. 81-318; ss. 22, 27, 29, 31, ch. 86-290; s. 37, ch. 88-1; s. 16, ch. 88-277; s. 5, ch. 88-361; s. 28, ch. 89-162; s. 3, ch. 91-22; ss. 4, 5, ch. 91-429; s. 4, ch. 92-22; s. 91, ch. 92-149; s. 112, ch. 94-218; s. 2, ch. 95-231; s. 2, ch. 96-197; s. 224, ch. 97-101; s. 1101, ch. 97-103; s. 35, ch. 97-264; s. 7, ch. 98-49; s. 55, ch. 98-166; s. 156, ch. 99-251; s. 113, ch. 2000-160; ss. 27, 43, ch. 2000-318; s. 2, ch. 2001-100; ss. 26, 56, ch. 2001-277.

459.026  Reports of adverse incidents in office practice settings.--

(1)  Any adverse incident that occurs on or after January 1, 2000, in any office maintained by an osteopathic physician for the practice of osteopathic medicine which is not licensed under chapter 395 must be reported to the department in accordance with the provisions of this section.

(2)  Any osteopathic physician or other licensee under this chapter practicing in this state must notify the department if the osteopathic physician or licensee was involved in an adverse incident that occurred on or after January 1, 2000, in any office maintained by an osteopathic physician for the practice of osteopathic medicine which is not licensed under chapter 395.

(3)  The required notification to the department must be submitted in writing by certified mail and postmarked within 15 days after the occurrence of the adverse incident.

(4)  For purposes of notification to the department pursuant to this section, the term "adverse incident" means an event over which the physician or licensee could exercise control and which is associated in whole or in part with a medical intervention, rather than the condition for which such intervention occurred, and which results in the following patient injuries:

(a)  The death of a patient.

(b)  Brain or spinal damage to a patient.

(c)  The performance of a surgical procedure on the wrong patient.

(d)1.  The performance of a wrong-site surgical procedure;

2.  The performance of a wrong surgical procedure; or

3.  The surgical repair of damage to a patient resulting from a planned surgical procedure where the damage is not a recognized specific risk as disclosed to the patient and documented through the informed-consent process

if it results in: death; brain or spinal damage; permanent disfigurement not to include the incision scar; fracture or dislocation of bones or joints; a limitation of neurological, physical, or sensory function; or any condition that required the transfer of the patient.

(e)  A procedure to remove unplanned foreign objects remaining from a surgical procedure.

(f)  Any condition that required the transfer of a patient to a hospital licensed under chapter 395 from an ambulatory surgical center licensed under chapter 395 or any facility or any office maintained by a physician for the practice of medicine which is not licensed under chapter 395.

(5)  The department shall review each incident and determine whether it potentially involved conduct by a health care professional who is subject to disciplinary action, in which case s. 456.073 applies. Disciplinary action, if any, shall be taken by the board under which the health care professional is licensed.

(6)  The board may adopt rules to administer this section.

History.--s. 198, ch. 99-397; s. 114, ch. 2000-160.