House Bill 1197c1

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    Florida House of Representatives - 1998             CS/HB 1197

        By the Committee on Business Regulation & Consumer Affairs
    and Representative Sublette





  1                      A bill to be entitled

  2         An act relating to regulation of professions

  3         and occupations; amending ss. 455.225 and

  4         455.621, F.S., relating to disciplinary

  5         proceedings for boards within the Department of

  6         Business and Professional Regulation and the

  7         Department of Health, respectively; revising

  8         provisions relating to whether failure to

  9         comply with certain time limits constitutes

10         harmless error in any resulting disciplinary

11         action; providing for disclosure of the

12         existence, but not the details, of an active

13         investigation unless such disclosure would be

14         detrimental to the investigation; authorizing

15         complainants to view or obtain the

16         investigative file after an investigation is

17         complete; providing a filing deadline for any

18         response to the information contained in the

19         investigative file to be considered at the

20         probable cause hearing; including members of

21         the Legislature among those persons or agencies

22         to whom confidential information may be

23         provided for investigatory or oversight

24         purposes; allowing such persons and agencies to

25         use or investigate such information in any way

26         necessary to complete their investigatory or

27         oversight duties; authorizing the release of

28         information necessary to correct public

29         statements made about an otherwise confidential

30         disciplinary case that are false or misleading;

31         amending ss. 468.535, 490.00515, and 491.0047,

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    Florida House of Representatives - 1998             CS/HB 1197

    190-923-98






  1         F.S.; correcting cross references, to conform;

  2         providing an effective date.

  3

  4  Be It Enacted by the Legislature of the State of Florida:

  5

  6         Section 1.  Subsections (2) and (10) of section

  7  455.225, Florida Statutes, are amended to read:

  8         455.225  Disciplinary proceedings.--Disciplinary

  9  proceedings for each board shall be within the jurisdiction of

10  the department.

11         (2)  The department shall allocate sufficient and

12  adequately trained staff to expeditiously and thoroughly

13  determine legal sufficiency and investigate all legally

14  sufficient complaints. For purposes of this section, it is the

15  intent of the Legislature that the term "expeditiously" means

16  that the department agency, for disciplinary cases under its

17  jurisdiction, shall complete the report of its initial

18  investigative findings and recommendations concerning the

19  existence of probable cause within 6 months after its receipt

20  of the complaint. The failure of the department agency, for

21  disciplinary cases under its jurisdiction, to comply with the

22  time limits of this section while investigating a complaint

23  against a licensee constitutes harmless error in any resulting

24  subsequent disciplinary action unless an administrative law

25  judge a court finds that avoidable delay by the department

26  materially prejudiced the licensee either the fairness of the

27  proceeding or the correctness of the action may have been

28  impaired by a material error in procedure or a failure to

29  follow prescribed procedure. When its investigation is

30  complete and legally sufficient, the department shall prepare

31  and submit to the probable cause panel of the appropriate

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    Florida House of Representatives - 1998             CS/HB 1197

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  1  regulatory board the investigative report of the department.

  2  The report shall contain the investigative findings and the

  3  recommendations of the department concerning the existence of

  4  probable cause. At any time after legal sufficiency is found,

  5  the department may dismiss any case, or any part thereof, if

  6  the department determines that there is insufficient evidence

  7  to support the prosecution of allegations contained therein.

  8  The department shall provide a detailed report to the

  9  appropriate probable cause panel prior to dismissal of any

10  case or part thereof, and to the subject of the complaint

11  after dismissal of any case or part thereof, under this

12  section. For cases dismissed prior to a finding of probable

13  cause, such report is confidential and exempt from s.

14  119.07(1). The probable cause panel shall have access, upon

15  request, to the investigative files pertaining to a case prior

16  to dismissal of such case. If the department dismisses a case,

17  the probable cause panel may retain independent legal counsel,

18  employ investigators, and continue the investigation and

19  prosecution of the case as it deems necessary.

20         (10)(a)  Except as otherwise provided in this

21  subsection, the complaint and all information obtained

22  pursuant to the investigation by the department are

23  confidential and exempt from s. 119.07(1) until 10 days after

24  probable cause has been found to exist by the probable cause

25  panel or by the department, or until the regulated

26  professional or subject of the investigation waives his or her

27  privilege of confidentiality, whichever occurs first. However,

28  in response to an inquiry about an individual licensee, the

29  department shall disclose the existence, but not the details,

30  of an active investigation, unless such disclosure would be

31  detrimental to the investigation.

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  1         (b)  Any However, this exemption from s. 119.07(1)

  2  under this subsection does not apply to actions against

  3  unlicensed persons pursuant to s. 455.228 or the applicable

  4  practice act.

  5         (c)  Upon completion of an the investigation and

  6  pursuant to a written request by the complainant or the

  7  subject, the department shall provide the complainant or

  8  subject an opportunity to inspect the investigative file or,

  9  at the complainant's or subject's expense, forward to that

10  person the subject a copy of the investigative file. The

11  complainant or subject may make the request to view or obtain

12  the file at any point after the investigation is complete and

13  may file a written response to the information contained in

14  the investigative file. Such response must be filed within 20

15  days prior to the date the probable cause hearing is to take

16  place in order to be considered at the probable cause hearing,

17  unless an extension of time has been granted by the

18  department.

19         (d)  This subsection does not prohibit the department

20  from providing such information to any elected member of the

21  Legislature, any law enforcement agency, or to any other

22  regulatory agency, and the receiving person or agency may

23  utilize or investigate the information in whatever way is

24  necessary to complete the investigatory or oversight duties of

25  that person or agency.

26         (e)  If public statements that are false or misleading

27  are made about an otherwise confidential disciplinary case,

28  the department may disclose all information necessary to

29  correct such false or misleading statements.

30         Section 2.  Subsections (2) and (10) of section

31  455.621, Florida Statutes, are amended to read:

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    Florida House of Representatives - 1998             CS/HB 1197

    190-923-98






  1         455.621  Disciplinary proceedings.--Disciplinary

  2  proceedings for each board shall be within the jurisdiction of

  3  the department.

  4         (2)  The department shall allocate sufficient and

  5  adequately trained staff to expeditiously and thoroughly

  6  determine legal sufficiency and investigate all legally

  7  sufficient complaints. For purposes of this section, it is the

  8  intent of the Legislature that the term "expeditiously" means

  9  that the department complete the report of its initial

10  investigative findings and recommendations concerning the

11  existence of probable cause within 6 months after its receipt

12  of the complaint. The failure of the department, for

13  disciplinary cases under its jurisdiction, to comply with the

14  time limits of this section while investigating a complaint

15  against a licensee constitutes harmless error in any resulting

16  subsequent disciplinary action unless an administrative law

17  judge a court finds that avoidable delay by the department

18  materially prejudiced the licensee either the fairness of the

19  proceeding or the correctness of the action may have been

20  impaired by a material error in procedure or a failure to

21  follow prescribed procedure. When its investigation is

22  complete and legally sufficient, the department shall prepare

23  and submit to the probable cause panel of the appropriate

24  regulatory board the investigative report of the department.

25  The report shall contain the investigative findings and the

26  recommendations of the department concerning the existence of

27  probable cause. At any time after legal sufficiency is found,

28  the department may dismiss any case, or any part thereof, if

29  the department determines that there is insufficient evidence

30  to support the prosecution of allegations contained therein.

31  The department shall provide a detailed report to the

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    Florida House of Representatives - 1998             CS/HB 1197

    190-923-98






  1  appropriate probable cause panel prior to dismissal of any

  2  case or part thereof, and to the subject of the complaint

  3  after dismissal of any case or part thereof, under this

  4  section. For cases dismissed prior to a finding of probable

  5  cause, such report is confidential and exempt from s.

  6  119.07(1). The probable cause panel shall have access, upon

  7  request, to the investigative files pertaining to a case prior

  8  to dismissal of such case. If the department dismisses a case,

  9  the probable cause panel may retain independent legal counsel,

10  employ investigators, and continue the investigation and

11  prosecution of the case as it deems necessary.

12         (10)(a)  Except as otherwise provided in this

13  subsection, the complaint and all information obtained

14  pursuant to the investigation by the department are

15  confidential and exempt from s. 119.07(1) until 10 days after

16  probable cause has been found to exist by the probable cause

17  panel or by the department, or until the regulated

18  professional or subject of the investigation waives his or her

19  privilege of confidentiality, whichever occurs first. However,

20  in response to an inquiry about an individual licensee, the

21  department shall disclose the existence, but not the details,

22  of an active investigation, unless such disclosure would be

23  detrimental to the investigation.

24         (b)  Any exemption from s. 119.07(1) under this

25  subsection does not apply to actions against unlicensed

26  persons pursuant to s. 455.637 or the applicable practice act.

27         (c)  Upon completion of an the investigation and

28  pursuant to a written request by the complainant or the

29  subject, the department shall provide the complainant or

30  subject an opportunity to inspect the investigative file or,

31  at the complainant's or subject's expense, forward to that

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    Florida House of Representatives - 1998             CS/HB 1197

    190-923-98






  1  person the subject a copy of the investigative file.

  2  Notwithstanding s. 455.667, the subject may inspect or receive

  3  a copy of any expert witness report or patient record

  4  connected with the investigation if the subject agrees in

  5  writing to maintain the confidentiality of any information

  6  received under this subsection until 10 days after probable

  7  cause is found and to maintain the confidentiality of patient

  8  records pursuant to s. 455.667. The complainant or subject may

  9  make the request to view or obtain the file at any point after

10  the investigation is complete and may file a written response

11  to the information contained in the investigative file. Such

12  response must be filed within 20 days prior to the date the

13  probable cause hearing is to take place in order to be

14  considered at the probable cause hearing, unless an extension

15  of time has been granted by the department.

16         (d)  This subsection does not prohibit the department

17  from providing such information to any elected member of the

18  Legislature, any law enforcement agency, or to any other

19  regulatory agency, and the receiving person or agency may

20  utilize or investigate the information in whatever way is

21  necessary to complete the investigatory or oversight duties of

22  that person or agency.

23         (e)  If public statements that are false or misleading

24  are made about an otherwise confidential disciplinary case,

25  the department may disclose all information necessary to

26  correct such false or misleading statements.

27         Section 3.  Subsection (2) of section 468.535, Florida

28  Statutes, is amended to read:

29         468.535  Investigations; audits; review.--

30         (2)  All material compiled by the department in any

31  investigation, audit, review of a proposed change of ownership

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  1  of an employee leasing company, or other review under this

  2  part is subject to ss. 455.225(10)(2) and 455.229(1).

  3         Section 4.  Section 490.00515, Florida Statutes, is

  4  amended to read:

  5         490.00515  Exemptions from public records and meetings

  6  requirements.--The exemptions from s. 119.07(1) provided by

  7  ss. 455.225(2) and (10) and 455.707455.261(3)(e) and (5)(a)

  8  also apply to information concerning a provisional

  9  psychologist regulated by the Agency for Health Care

10  Administration and the Department of Health under this

11  chapter, a registered clinical social worker intern, a

12  registered marriage and family therapist intern, a registered

13  mental health counselor intern, a provisional clinical social

14  worker, a provisional marriage and family therapist, or a

15  provisional mental health counselor regulated by the Agency

16  for Health Care Administration and the Department of Health

17  under chapter 491. The exemption from s. 286.011 provided by

18  s. 455.225(4) also applies to the proceedings of a probable

19  cause panel with respect to an investigation concerning a

20  provisional psychologist, a registered clinical social worker

21  intern, a registered marriage and family therapist intern, a

22  registered mental health counselor intern, a provisional

23  clinical social worker, a provisional marriage and family

24  therapist, or a provisional mental health counselor regulated

25  by the agency and department under this chapter or chapter

26  491. This section is subject to the Open Government Sunset

27  Review Act of 1995 in accordance with s. 119.15 and shall

28  stand repealed on October 2, 2002, unless reviewed and saved

29  from repeal through reenactment by the Legislature.

30         Section 5.  Section 491.0047, Florida Statutes, is

31  amended to read:

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    Florida House of Representatives - 1998             CS/HB 1197

    190-923-98






  1         491.0047  Exemptions from public records and meetings

  2  requirements.--The exemptions from s. 119.07(1) provided by

  3  ss. 455.225(2) and (10) and 455.707455.261(3)(e) and (5)(a)

  4  also apply to information concerning a provisional

  5  psychologist regulated by the Agency for Health Care

  6  Administration and the Department of Health under chapter 490,

  7  a registered clinical social worker intern, a registered

  8  marriage and family therapist intern, a registered mental

  9  health counselor intern, a provisional clinical social worker,

10  a provisional marriage and family therapist, or a provisional

11  mental health counselor regulated by the Agency for Health

12  Care Administration and the Department of Health under this

13  chapter. The exemption from s. 286.011 provided by s.

14  455.225(4) also applies to the proceedings of a probable cause

15  panel with respect to an investigation concerning a

16  provisional psychologist, a registered clinical social worker

17  intern, a registered marriage and family therapist intern, a

18  registered mental health counselor intern, a provisional

19  clinical social worker, a provisional marriage and family

20  therapist, or a provisional mental health counselor regulated

21  by the agency and department under chapter 490 or this

22  chapter. This section is subject to the Open Government Sunset

23  Review Act of 1995 in accordance with s. 119.15 and shall

24  stand repealed on October 2, 2002, unless reviewed and saved

25  from repeal through reenactment by the Legislature.

26         Section 6.  This act shall take effect January 1 of the

27  year after the year in which enacted.

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