Senate Bill 2076

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    Florida Senate - 1998                                  SB 2076

    By Senator Clary





    7-1105-98

  1                      A bill to be entitled

  2         An act relating to professional regulation;

  3         amending s. 11.62, F.S.; adding criteria for

  4         evaluating new regulation; amending s. 455.201,

  5         F.S.; requiring the Department of Business and

  6         Professional Regulation to consider the impact

  7         on jobs when considering new regulation;

  8         creating s. 455.2035, F.S.; providing the

  9         department rulemaking authority; amending ss.

10         455.209, 455.213, 455.218, F.S.; conforming

11         provisions to a previous administrative

12         reorganization; amending s. 455.219, F.S.;

13         providing inspection fee authority; creating s.

14         455.2237, F.S.; providing authority to inspect

15         and investigate records, offices, and job

16         sites; amending s. 455.225, F.S.; revising

17         probable-cause provisions; prescribing

18         authority of the department or a board in cases

19         of failure to comply with continuing-education

20         requirements; conforming provisions to a

21         previous administrative reorganization;

22         amending s. 455.2285, F.S.; conforming

23         provisions to a previous administrative

24         reorganization; amending s. 455.517, F.S.;

25         requiring the Department of Health to consider

26         the impact on jobs when creating new

27         regulation; providing effective dates.

28

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

30

31

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  1         Section 1.  Effective October 1, 1998, subsections (3)

  2  and (4) of section 11.62, Florida Statutes, are amended to

  3  read:

  4         11.62  Legislative review of proposed regulation of

  5  unregulated functions.--

  6         (3)  In determining whether to regulate a profession or

  7  occupation, the Legislature shall consider the following

  8  factors:

  9         (a)  Whether the unregulated practice of the profession

10  or occupation will substantially harm or endanger the public

11  health, safety, or welfare and whether the potential for harm

12  is recognizable and not remote;

13         (b)  Whether the practice of the profession or

14  occupation requires specialized skill or training, and whether

15  that skill or training is readily measurable or quantifiable

16  so that examination or training requirements would reasonably

17  assure initial and continuing professional or occupational

18  ability;

19         (c)  Whether the regulation will have an unreasonable

20  effect on the job creation or job retention in the state or

21  will place unreasonable restrictions on the ability of

22  individuals who seek to practice or who are practicing a given

23  profession or occupation to find employment;

24         (d)(c)  Whether the public is or can be effectively

25  protected by other means; and

26         (e)(d)  Whether the overall cost-effectiveness and

27  economic impact of the proposed regulation, including the

28  indirect costs to consumers, will be favorable.

29         (4)  The proponents of legislation that provides for

30  the regulation of a profession or occupation not already

31  expressly subject to state regulation shall provide, upon

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  1  request, the following information in writing to the state

  2  agency that is proposed to have jurisdiction over the

  3  regulation and to the legislative committees to which the

  4  legislation is referred:

  5         (a)  The number of individuals or businesses that would

  6  be subject to the regulation;

  7         (b)  The name of each association that represents

  8  members of the profession or occupation, together with a copy

  9  of its codes of ethics or conduct;

10         (c)  Documentation of the nature and extent of the harm

11  to the public caused by the unregulated practice of the

12  profession or occupation, including a description of any

13  complaints that have been lodged against persons who have

14  practiced the profession or occupation in this state during

15  the preceding 3 years;

16         (d)  A list of states that regulate the profession or

17  occupation, and the dates of enactment of each law providing

18  for such regulation and a copy of each law;

19         (e)  A list and description of state and federal laws

20  that have been enacted to protect the public with respect to

21  the profession or occupation and a statement of the reasons

22  why these laws have not proven adequate to protect the public;

23         (f)  A description of the voluntary efforts made by

24  members of the profession or occupation to protect the public

25  and a statement of the reasons why these efforts are not

26  adequate to protect the public;

27         (g)  A copy of any federal legislation mandating

28  regulation;

29         (h)  An explanation of the reasons why other types of

30  less restrictive regulation would not effectively protect the

31  public;

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  1         (i)  The cost, availability, and appropriateness of

  2  training and examination requirements;

  3         (j)(i)  The cost of regulation, including the indirect

  4  cost to consumers, and the method proposed to finance the

  5  regulation;

  6         (k)  The cost imposed on applicants or practitioners or

  7  on employers of applicants or practitioners as a result of the

  8  regulation;

  9         (l)(j)  The details of any previous efforts in this

10  state to implement regulation of the profession or occupation;

11  and

12         (m)(k)  Any other information the agency or the

13  committee considers relevant to the analysis of the proposed

14  legislation.

15         Section 2.  Effective October 1, 1998, subsection (4)

16  of section 455.201, Florida Statutes, is amended to read:

17         455.201  Professions and occupations regulated by

18  department; legislative intent; requirements.--

19         (4)(a)  Neither No board, nor the department nor any

20  board may, shall create unreasonably restrictive and

21  extraordinary standards that deter qualified persons from

22  entering the various professions. Neither No board, nor the

23  department nor any board may, shall take any action that which

24  tends to create or maintain an economic condition that

25  unreasonably restricts competition, except as specifically

26  provided by law.

27         (b)  Neither the department nor any board may create a

28  regulation that has an unreasonable effect on job creation or

29  job retention in the state or that places unreasonable

30  restrictions on the ability of individuals who seek to

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  1  practice or who are practicing a given profession or

  2  occupation to find employment.

  3         (c)  The Legislature shall evaluate proposals to

  4  increase regulation of professions or occupations that are

  5  already regulated to determine their effect on job creation or

  6  retention and job opportunities.

  7         Section 3.  Section 455.2035, Florida Statutes, is

  8  created to read:

  9         455.2035  Rulemaking authority.--The department may

10  adopt rules pursuant to chapter 120 to implement the

11  regulatory requirements of any profession within the

12  department's jurisdiction which does not have a governing

13  board.

14         Section 4.  Subsection (2) of section 455.209, Florida

15  Statutes, is amended to read:

16         455.209  Accountability and liability of board

17  members.--

18         (2)  Each board member and each former board member

19  serving on a probable cause panel shall be exempt from civil

20  liability for any act or omission when acting in the member's

21  official capacity, and the department, or the Department of

22  Legal Affairs shall defend any such member in any action

23  against any board or member of a board arising from any such

24  act or omission. In addition, the department or the Department

25  of Legal Affairs may defend the member's company or business

26  in any action against the company or business if the

27  department or the Department of Legal Affairs determines that

28  the actions from which the suit arises are actions taken by

29  the member in the member's official capacity and were not

30  beyond the member's statutory authority. In providing such

31  defense, the department, the agency, or the Department of

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  1  Legal Affairs may employ or utilize the legal services of

  2  outside counsel.

  3         Section 5.  Subsection (1) of section 455.213, Florida

  4  Statutes, is amended to read:

  5         455.213  General licensing provisions.--

  6         (1)  Any person desiring to be licensed shall apply to

  7  the department in writing. The application for licensure shall

  8  be made on a form prepared and furnished by the department and

  9  include the applicant's social security number.  The

10  application shall be supplemented as needed to reflect any

11  material change in any circumstance or condition stated in the

12  application which takes place between the initial filing of

13  the application and the final grant or denial of the license

14  and which might affect the decision of the department agency.

15  In order to further the economic development goals of the

16  state, and notwithstanding any law to the contrary, the

17  department may enter into an agreement with the county tax

18  collector for the purpose of appointing the county tax

19  collector as the department's agent to accept applications for

20  licenses and applications for renewals of licenses. The

21  agreement must specify the time within which the tax collector

22  must forward any applications and accompanying application

23  fees to the department. In cases where a person applies or

24  schedules directly with a national examination organization or

25  examination vendor to take an examination required for

26  licensure, any organization- or vendor-related fees associated

27  with the examination may be paid directly to the organization

28  or vendor.

29         Section 6.  Subsection (6) of section 455.218, Florida

30  Statutes, is amended to read:

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  1         455.218  Foreign-trained professionals; special

  2  examination and license provisions.--

  3         (6)  The department, for its boards, shall not issue an

  4  initial license to, or renew a license of, any applicant or

  5  licensee who is under investigation or prosecution in any

  6  jurisdiction for an action which would constitute a violation

  7  of this part or the professional practice acts administered by

  8  the department or agency and the boards until such time as the

  9  investigation or prosecution is complete, at which time the

10  provisions of the professional practice acts shall apply.

11         Section 7.  Subsection (8) is added to section 455.219,

12  Florida Statutes, to read:

13         455.219  Fees; receipts; disposition; periodic

14  management reports.--

15         (8)  Unless otherwise provided by law, the board, or

16  the department if there is no board, may charge an inspection

17  fee for facility inspections required by law to be performed

18  periodically, which fee shall be set to approximate the

19  estimated average cost of an inspection, but shall not exceed

20  $50.

21         Section 8.  Section 455.2237, Florida Statutes, is

22  created to read:

23         455.2237  Authority to inspect.--Any board, or the

24  department when there is no board, may by rule authorize

25  inspections and investigations of records, offices, or job

26  sites at times when a licensee or the employee or agent of the

27  licensee, or any person suspected of unlicensed activity, is

28  performing an activity regulated by this chapter or the

29  applicable practice act. Such rule may establish more

30  definitively the times and conditions of inspections and

31  investigations and may authorize such inspections and

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  1  investigations only to the extent necessary to determine

  2  whether a person is in compliance with the provisions of this

  3  chapter or of the regulated practice acts or any rule

  4  promulgated thereunder, to aid in the enforcement of the

  5  provisions of this chapter or of the regulated practice acts

  6  or any rule adopted thereunder, or to determine if any of the

  7  provisions of this chapter or of the regulated practice acts,

  8  or any rule adopted thereunder, is being or has been violated.

  9         Section 9.  Subsections (2), (3), (4), and (9) of

10  section 455.225, Florida Statutes, are amended to read:

11         455.225  Disciplinary proceedings.--Disciplinary

12  proceedings for each board shall be within the jurisdiction of

13  the department.

14         (2)  The department shall allocate sufficient and

15  adequately trained staff to expeditiously and thoroughly

16  determine legal sufficiency and investigate all legally

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

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

19  that the agency, for disciplinary cases under its

20  jurisdiction, shall complete the report of its initial

21  investigative findings and recommendations concerning the

22  existence of probable cause within 6 months after its receipt

23  of the complaint. The failure of the agency, for disciplinary

24  cases under its jurisdiction, to comply with the time limits

25  of this section while investigating a complaint against a

26  licensee constitutes harmless error in any subsequent

27  disciplinary action unless a court finds that either the

28  fairness of the proceeding or the correctness of the action

29  may have been impaired by a material error in procedure or a

30  failure to follow prescribed procedure. When its investigation

31  is complete and legally sufficient, the department shall

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  1  prepare and submit to the probable cause panel of the

  2  appropriate regulatory board the investigative report of the

  3  department. The report shall contain the investigative

  4  findings and the recommendations of the department concerning

  5  the existence of probable cause. At any time after legal

  6  sufficiency is found, the department may dismiss any case, or

  7  any part thereof, if the department determines that there is

  8  insufficient evidence to support the prosecution of

  9  allegations contained therein. The department shall provide a

10  detailed report to the appropriate probable cause panel prior

11  to dismissal of any case or part thereof, and to the subject

12  of the complaint after dismissal of any case or part thereof,

13  under this section. For cases dismissed prior to a finding of

14  probable cause, such report is confidential and exempt from s.

15  119.07(1). The probable cause panel shall have access, upon

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

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

18  the probable cause panel may retain independent legal counsel,

19  employ investigators, and continue the investigation and

20  prosecution of the case as it deems necessary.

21         (3)(a)  As an alternative to the provisions of

22  subsections (1) and (2), when a complaint is received, the

23  department may provide a licensee with a notice of

24  noncompliance for an initial offense of a minor violation. A

25  violation is a minor violation if it does not demonstrate a

26  serious inability to practice the profession, result in

27  economic or physical harm to a person, or adversely affect the

28  public health, safety, or welfare or create a significant

29  threat of such harm. Each board, or the department if there is

30  no board, shall establish by rule those violations which are

31  minor violations under this provision. Failure of a licensee

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  1  to take action in correcting the violation within 15 days

  2  after notice may result in the institution of regular

  3  disciplinary proceedings.

  4         (b)  The department may issue a notice of noncompliance

  5  for an initial offense of a minor violation, notwithstanding a

  6  board's failure to designate a particular minor violation by

  7  rule as provided in paragraph (a).

  8         (c)  In any instance in which a licensee is charged

  9  with failure to comply with continuing-education requirements,

10  the department's or board's, as appropriate, initial response

11  may only be to issue a notice of noncompliance, including

12  granting the licensee a reasonable time to comply.  However,

13  if the department finds that the licensee's failure to comply

14  was done knowingly, the department or board, as appropriate,

15  may levy any other penalty otherwise available to it under the

16  circumstances.  This paragraph does not apply to any licensee

17  for which failure to comply with continuing-education

18  requirements is not grounds for discipline but is instead only

19  a prerequisite for renewal.

20         (4)  The determination as to whether probable cause

21  exists shall be made by majority vote of a probable cause

22  panel of the board, or the department, as appropriate. Each

23  regulatory board shall provide by rule that the determination

24  of probable cause shall be made by a panel of its members or

25  by the department. Each board may provide by rule for multiple

26  probable cause panels composed of at least two members. Each

27  board may provide by rule that one or more members of the

28  panel or panels may be a former board member. The length of

29  term or repetition of service of any such former board member

30  on a probable cause panel may vary according to the direction

31  of the board when authorized by board rule. Any probable cause

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  1  panel must include one of the board's former or present

  2  consumer members, if one is available, willing to serve, and

  3  is authorized to do so by the board chair. Any probable cause

  4  panel must include a present board member. Any probable cause

  5  panel must include a former or present professional board

  6  member. However, any former professional board member serving

  7  on the probable cause panel must hold an active valid license

  8  for that profession. All proceedings of the panel are exempt

  9  from s. 286.011 until 10 days after probable cause has been

10  found to exist by the panel or until the subject of the

11  investigation waives his or her privilege of confidentiality.

12  The probable cause panel may make a reasonable request, and

13  upon such request the department shall provide such additional

14  investigative information as is necessary to the determination

15  of probable cause. A request for additional investigative

16  information shall be made within 15 days from the date of

17  receipt by the probable cause panel of the investigative

18  report of the department. The probable cause panel or the

19  department, as may be appropriate, shall make its

20  determination of probable cause within 30 days after receipt

21  by it of the final investigative report of the department. The

22  secretary may grant extensions of the 15-day and the 30-day

23  time limits. In lieu of a finding of probable cause, the

24  probable cause panel, or the department when there is no

25  board, may issue a letter of guidance to the subject. If,

26  within the 30-day time limit, as may be extended, the probable

27  cause panel does not make a determination regarding the

28  existence of probable cause or does not issue a letter of

29  guidance in lieu of a finding of probable cause, the

30  department agency, for disciplinary cases under its

31  jurisdiction, must make a determination regarding the

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  1  existence of probable cause within 10 days after the

  2  expiration of the time limit. In addition, if the probable

  3  cause panel finds no probable cause, the department may

  4  determine within 10 days thereafter that probable cause

  5  exists. If the probable cause panel finds that probable cause

  6  exists, it shall direct the department to file a formal

  7  complaint against the licensee. The department shall follow

  8  the directions of the probable cause panel regarding the

  9  filing of a formal complaint. If directed to do so, the

10  department shall file a formal complaint against the subject

11  of the investigation and prosecute that complaint pursuant to

12  chapter 120. However, the department may decide not to

13  prosecute the complaint if it finds that probable cause had

14  been improvidently found by the panel. In such cases, the

15  department shall refer the matter to the board. The board may

16  then file a formal complaint and prosecute the complaint

17  pursuant to chapter 120. The department shall also refer to

18  the board any investigation or disciplinary proceeding not

19  before the Division of Administrative Hearings pursuant to

20  chapter 120 or otherwise completed by the department within 1

21  year after the filing of a complaint. The department agency,

22  for disciplinary cases under its jurisdiction, must establish

23  a uniform reporting system to quarterly refer to each board

24  the status of any investigation or disciplinary proceeding

25  that is not before the Division of Administrative Hearings or

26  otherwise completed by the department or agency within 1 year

27  after the filing of the complaint. Annually, the agency, for

28  disciplinary cases under its jurisdiction if there is no

29  board, or each board must establish a plan to reduce or

30  otherwise close any investigation or disciplinary proceeding

31  that is not before the Division of Administrative Hearings or

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  1  otherwise completed by the agency within 1 year after the

  2  filing of the complaint.  A probable cause panel or a board

  3  may retain independent legal counsel, employ investigators,

  4  and continue the investigation as it deems necessary; all

  5  costs thereof shall be paid from the Professional Regulation

  6  Trust Fund. All proceedings of the probable cause panel are

  7  exempt from s. 120.525.

  8         (9)(a)  The department shall periodically notify the

  9  person who filed the complaint of the status of the

10  investigation, whether probable cause has been found, and the

11  status of any civil action or administrative proceeding or

12  appeal.

13         (b)  In any disciplinary case under the jurisdiction of

14  the Agency for Health Care Administration for which probable

15  cause has been found, the Agency for Health Care

16  Administration shall provide to the person who filed the

17  complaint a copy of the administrative complaint, including:

18         1.  A written explanation of how an administrative

19  complaint is resolved by the disciplinary process.

20         2.  A written explanation of how and when the person

21  may participate in the disciplinary process.

22         3.  A written notice of any hearing before the Division

23  of Administrative Hearings or the regulatory board at which

24  final agency action is taken.

25         (c)  In any disciplinary case for which probable cause

26  is not found, the Agency for Health Care Administration shall

27  so inform the person who filed the complaint and notify that

28  person that he or she may, within 60 days, provide any

29  additional information to the probable cause panel which may

30  be relevant to the decision. In any administrative proceeding

31  under s. 120.57, the person who filed the disciplinary

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  1  complaint shall have the right to present oral or written

  2  communication relating to the alleged disciplinary violations

  3  or to the appropriate penalty.

  4         Section 10.  Section 455.2285, Florida Statutes, is

  5  amended to read:

  6         455.2285  Annual report concerning finances,

  7  administrative complaints, disciplinary actions, and

  8  recommendations.--The department is directed to prepare and

  9  submit a report to the President of the Senate and Speaker of

10  the House of Representatives by November 1 of each year. In

11  addition to finances and any other information the Legislature

12  may require, the report shall include statistics and relevant

13  information, profession by profession, detailing:

14         (1)  The revenues, expenditures, and cash balances for

15  the prior year, and a review of the adequacy of existing fees.

16         (2)  The number of complaints received and

17  investigated.

18         (3)  The number of findings of probable cause made.

19         (4)  The number of findings of no probable cause made.

20         (5)  The number of administrative complaints filed.

21         (6)  The disposition of all administrative complaints.

22         (7)  A description of disciplinary actions taken.

23         (8)  A description of any effort by the department

24  agency, for any disciplinary cases under its jurisdiction, to

25  reduce or otherwise close any investigation or disciplinary

26  proceeding not before the Division of Administrative Hearings

27  under chapter 120 or otherwise not completed within 1 year

28  after the initial filing of a complaint under this chapter.

29         (9)  The status of the development and implementation

30  of rules providing for disciplinary guidelines pursuant to s.

31  455.2273.

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  1         (10)  Such recommendations for administrative and

  2  statutory changes necessary to facilitate efficient and

  3  cost-effective operation of the department and the various

  4  boards.

  5         Section 11.  Effective October 1, 1998, subsection (4)

  6  of section 455.517, Florida Statutes, is amended to read:

  7         455.517  Professions and occupations regulated by

  8  department; legislative intent; requirements.--

  9         (4)(a)  Neither No board, nor the department nor any

10  board may, shall create unreasonably restrictive and

11  extraordinary standards that deter qualified persons from

12  entering the various professions. Neither No board, nor the

13  department nor any board may, shall take any action that which

14  tends to create or maintain an economic condition that

15  unreasonably restricts competition, except as specifically

16  provided by law.

17         (b)  Neither the department nor any board may create a

18  regulation that has an unreasonable effect on job creation or

19  job retention in the state or that places unreasonable

20  restrictions on the ability of individuals who seek to

21  practice or who are practicing a profession or occupation to

22  find employment.

23         (c)  The Legislature shall evaluate proposals to

24  increase regulation of professions or occupations to determine

25  their effect on job creation or retention and employment

26  opportunities.

27         Section 12.  Except as otherwise provided in this act,

28  this act shall take effect upon becoming a law.

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  2                          SENATE SUMMARY

  3    Requires the Department of Business and Professional
      Regulation and the Department of Health to consider the
  4    effect on jobs in the state in determining whether to
      regulate a profession or occupation.  Provides additional
  5    criteria, including the effect on job creation and job
      retention, training and examination requirements, and
  6    costs resulting from the regulation.  Authorizes the
      Department of Business and Professional Regulation to
  7    adopt rules to implement regulatory requirements.
      Authorizes the department to charge an inspection fee.
  8    Authorizes inspections and investigations of records,
      offices, and job sites.  Revises procedures for
  9    conducting disciplinary proceedings.

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