CODING: Words stricken are deletions; words underlined are additions.





                                                  SENATE AMENDMENT

    Bill No. HB 4119, 1st Eng.

    Amendment No.    

                            CHAMBER ACTION
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10                                                                

11  Senator Clary moved the following amendment:

12

13         Senate Amendment (with title amendment) 

14          Delete everything after the enacting clause

15

16  and insert:

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

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

19  read:

20         11.62  Legislative review of proposed regulation of

21  unregulated functions.--

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

23  occupation, the Legislature shall consider the following

24  factors:

25         (a)  Whether the unregulated practice of the profession

26  or occupation will substantially harm or endanger the public

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

28  is recognizable and not remote;

29         (b)  Whether the practice of the profession or

30  occupation requires specialized skill or training, and whether

31  that skill or training is readily measurable or quantifiable

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                                                  SENATE AMENDMENT

    Bill No. HB 4119, 1st Eng.

    Amendment No.    





 1  so that examination or training requirements would reasonably

 2  assure initial and continuing professional or occupational

 3  ability;

 4         (c)  Whether the regulation will have an unreasonable

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

 6  will place unreasonable restrictions on the ability of

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

 8  profession or occupation to find employment;

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

10  protected by other means; and

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

12  economic impact of the proposed regulation, including the

13  indirect costs to consumers, will be favorable.

14         (4)  The proponents of legislation that provides for

15  the regulation of a profession or occupation not already

16  expressly subject to state regulation shall provide, upon

17  request, the following information in writing to the state

18  agency that is proposed to have jurisdiction over the

19  regulation and to the legislative committees to which the

20  legislation is referred:

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

22  be subject to the regulation;

23         (b)  The name of each association that represents

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

25  of its codes of ethics or conduct;

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

27  to the public caused by the unregulated practice of the

28  profession or occupation, including a description of any

29  complaints that have been lodged against persons who have

30  practiced the profession or occupation in this state during

31  the preceding 3 years;

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                                                  SENATE AMENDMENT

    Bill No. HB 4119, 1st Eng.

    Amendment No.    





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

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

 3  for such regulation and a copy of each law;

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

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

 6  the profession or occupation and a statement of the reasons

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

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

 9  members of the profession or occupation to protect the public

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

11  adequate to protect the public;

12         (g)  A copy of any federal legislation mandating

13  regulation;

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

15  less restrictive regulation would not effectively protect the

16  public;

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

18  training and examination requirements;

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

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

21  regulation;

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

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

24  regulation;

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

26  state to implement regulation of the profession or occupation;

27  and

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

29  committee considers relevant to the analysis of the proposed

30  legislation.

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

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                                                  SENATE AMENDMENT

    Bill No. HB 4119, 1st Eng.

    Amendment No.    





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

 2         455.201  Professions and occupations regulated by

 3  department; legislative intent; requirements.--

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

 5  board may, shall create unreasonably restrictive and

 6  extraordinary standards that deter qualified persons from

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

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

 9  tends to create or maintain an economic condition that

10  unreasonably restricts competition, except as specifically

11  provided by law.

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

13  regulation that has an unreasonable effect on job creation or

14  job retention in the state or that places unreasonable

15  restrictions on the ability of individuals who seek to

16  practice or who are practicing a given profession or

17  occupation to find employment.

18         (c)  The Legislature shall evaluate proposals to

19  increase regulation of professions or occupations that are

20  already regulated to determine their effect on job creation or

21  retention and job opportunities.

22         Section 3.  Section 455.2035, Florida Statutes, is

23  created to read:

24         455.2035  Rulemaking authority.--The department may

25  adopt rules pursuant to ss. 120.54 and 120.536(1) to implement

26  the regulatory requirements of any profession within the

27  department's jurisdiction which does not have a statutorily

28  authorized governing board.

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

30  Statutes, is amended to read:

31         455.209  Accountability and liability of board

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                                                  SENATE AMENDMENT

    Bill No. HB 4119, 1st Eng.

    Amendment No.    





 1  members.--

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

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

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

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

 6  Legal Affairs shall defend any such member in any action

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

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

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

10  in any action against the company or business if the

11  department or the Department of Legal Affairs determines that

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

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

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

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

16  Legal Affairs may employ or utilize the legal services of

17  outside counsel.

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

19  Statutes, is amended to read:

20         455.213  General licensing provisions.--

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

22  the department in writing. The application for licensure shall

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

24  include the applicant's social security number.  The

25  application shall be supplemented as needed to reflect any

26  material change in any circumstance or condition stated in the

27  application which takes place between the initial filing of

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

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

30  In order to further the economic development goals of the

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

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                                                  SENATE AMENDMENT

    Bill No. HB 4119, 1st Eng.

    Amendment No.    





 1  department may enter into an agreement with the county tax

 2  collector for the purpose of appointing the county tax

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

 4  licenses and applications for renewals of licenses. The

 5  agreement must specify the time within which the tax collector

 6  must forward any applications and accompanying application

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

 8  schedules directly with a national examination organization or

 9  examination vendor to take an examination required for

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

11  with the examination may be paid directly to the organization

12  or vendor.

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

14  Statutes, is amended to read:

15         455.218  Foreign-trained professionals; special

16  examination and license provisions.--

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

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

19  licensee who is under investigation or prosecution in any

20  jurisdiction for an action which would constitute a violation

21  of this part or the professional practice acts administered by

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

23  investigation or prosecution is complete, at which time the

24  provisions of the professional practice acts shall apply.

25         Section 7.

26         Section 8.  Subsections (2), (3), (4), and (9) of

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

28         455.225  Disciplinary proceedings.--Disciplinary

29  proceedings for each board shall be within the jurisdiction of

30  the department.

31         (2)  The department shall allocate sufficient and

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                                                  SENATE AMENDMENT

    Bill No. HB 4119, 1st Eng.

    Amendment No.    





 1  adequately trained staff to expeditiously and thoroughly

 2  determine legal sufficiency and investigate all legally

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

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

 5  that the agency, for disciplinary cases under its

 6  jurisdiction, shall complete the report of its initial

 7  investigative findings and recommendations concerning the

 8  existence of probable cause within 6 months after its receipt

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

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

11  of this section while investigating a complaint against a

12  licensee constitutes harmless error in any subsequent

13  disciplinary action unless a court finds that either the

14  fairness of the proceeding or the correctness of the action

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

16  failure to follow prescribed procedure. When its investigation

17  is complete and legally sufficient, the department shall

18  prepare and submit to the probable cause panel of the

19  appropriate regulatory board the investigative report of the

20  department. The report shall contain the investigative

21  findings and the recommendations of the department concerning

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

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

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

25  insufficient evidence to support the prosecution of

26  allegations contained therein. The department shall provide a

27  detailed report to the appropriate probable cause panel prior

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

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

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

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

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                                                  SENATE AMENDMENT

    Bill No. HB 4119, 1st Eng.

    Amendment No.    





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

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

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

 4  the probable cause panel may retain independent legal counsel,

 5  employ investigators, and continue the investigation and

 6  prosecution of the case as it deems necessary.

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

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

 9  department may provide a licensee with a notice of

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

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

12  serious inability to practice the profession, result in

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

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

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

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

17  minor violations under this provision. Failure of a licensee

18  to take action in correcting the violation within 15 days

19  after notice may result in the institution of regular

20  disciplinary proceedings.

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

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

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

24  rule as provided in paragraph (a).

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

26  with failure to comply with continuing-education requirements,

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

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

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

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

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

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                                                  SENATE AMENDMENT

    Bill No. HB 4119, 1st Eng.

    Amendment No.    





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

 2  circumstances.  This paragraph does not apply to any licensee

 3  for which failure to comply with continuing-education

 4  requirements is not grounds for discipline but is instead only

 5  a prerequisite for renewal.

 6         (4)  The determination as to whether probable cause

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

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

 9  regulatory board shall provide by rule that the determination

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

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

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

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

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

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

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

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

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

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

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

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

22  panel must include a former or present professional board

23  member. However, any former professional board member serving

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

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

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

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

28  investigation waives his or her privilege of confidentiality.

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

30  upon such request the department shall provide such additional

31  investigative information as is necessary to the determination

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                                                  SENATE AMENDMENT

    Bill No. HB 4119, 1st Eng.

    Amendment No.    





 1  of probable cause. A request for additional investigative

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

 3  receipt by the probable cause panel of the investigative

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

 5  department, as may be appropriate, shall make its

 6  determination of probable cause within 30 days after receipt

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

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

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

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

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

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

13  cause panel does not make a determination regarding the

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

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

16  department agency, for disciplinary cases under its

17  jurisdiction, must make a determination regarding the

18  existence of probable cause within 10 days after the

19  expiration of the time limit. If the probable cause panel

20  finds no probable cause, the department may petition within 10

21  days for a determination of the existence of probable cause

22  pursuant to s. 120.574. Such actions shall be held

23  confidential as provided in s. 455.255(10). The administrative

24  law judge's order shall constitute final action with respect

25  to the existence of probable cause.  If the probable cause

26  panel finds that probable cause exists, it shall direct the

27  department to file a formal complaint against the licensee.

28  The department shall follow the directions of the probable

29  cause panel regarding the filing of a formal complaint. If

30  directed to do so, the department shall file a formal

31  complaint against the subject of the investigation and

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                                                  SENATE AMENDMENT

    Bill No. HB 4119, 1st Eng.

    Amendment No.    





 1  prosecute that complaint pursuant to chapter 120. However, the

 2  department may decide not to prosecute the complaint if it

 3  finds that probable cause had been improvidently found by the

 4  panel. In such cases, the department shall refer the matter to

 5  the board. The board may then file a formal complaint and

 6  prosecute the complaint pursuant to chapter 120. The

 7  department shall also refer to the board any investigation or

 8  disciplinary proceeding not before the Division of

 9  Administrative Hearings pursuant to chapter 120 or otherwise

10  completed by the department within 1 year after the filing of

11  a complaint. The department agency, for disciplinary cases

12  under its jurisdiction, must establish a uniform reporting

13  system to quarterly refer to each board the status of any

14  investigation or disciplinary proceeding that is not before

15  the Division of Administrative Hearings or otherwise completed

16  by the department or agency within 1 year after the filing of

17  the complaint. Annually, the agency, for disciplinary cases

18  under its jurisdiction if there is no board, or each board

19  must establish a plan to reduce or otherwise close any

20  investigation or disciplinary proceeding that is not before

21  the Division of Administrative Hearings or otherwise completed

22  by the agency within 1 year after the filing of the complaint.

23  A probable cause panel or a board may retain independent legal

24  counsel, employ investigators, and continue the investigation

25  as it deems necessary; all costs thereof shall be paid from

26  the Professional Regulation Trust Fund. All proceedings of the

27  probable cause panel are exempt from s. 120.525.

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

29  person who filed the complaint of the status of the

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

31  status of any civil action or administrative proceeding or

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                                                  SENATE AMENDMENT

    Bill No. HB 4119, 1st Eng.

    Amendment No.    





 1  appeal.

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

 3  the Agency for Health Care Administration for which probable

 4  cause has been found, the Agency for Health Care

 5  Administration shall provide to the person who filed the

 6  complaint a copy of the administrative complaint, including:

 7         1.  A written explanation of how an administrative

 8  complaint is resolved by the disciplinary process.

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

10  may participate in the disciplinary process.

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

12  of Administrative Hearings or the regulatory board at which

13  final agency action is taken.

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

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

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

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

18  additional information to the probable cause panel which may

19  be relevant to the decision. In any administrative proceeding

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

21  complaint shall have the right to present oral or written

22  communication relating to the alleged disciplinary violations

23  or to the appropriate penalty.

24         Section 9.  Section 455.2285, Florida Statutes, is

25  amended to read:

26         455.2285  Annual report concerning finances,

27  administrative complaints, disciplinary actions, and

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

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

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

31  addition to finances and any other information the Legislature

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                                                  SENATE AMENDMENT

    Bill No. HB 4119, 1st Eng.

    Amendment No.    





 1  may require, the report shall include statistics and relevant

 2  information, profession by profession, detailing:

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

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

 5         (2)  The number of complaints received and

 6  investigated.

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

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

 9         (5)  The number of administrative complaints filed.

10         (6)  The disposition of all administrative complaints.

11         (7)  A description of disciplinary actions taken.

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

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

14  reduce or otherwise close any investigation or disciplinary

15  proceeding not before the Division of Administrative Hearings

16  under chapter 120 or otherwise not completed within 1 year

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

18         (9)  The status of the development and implementation

19  of rules providing for disciplinary guidelines pursuant to s.

20  455.2273.

21         (10)  Such recommendations for administrative and

22  statutory changes necessary to facilitate efficient and

23  cost-effective operation of the department and the various

24  boards.

25         Section 10.  Effective October 1, 1998, subsection (4)

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

27         455.517  Professions and occupations regulated by

28  department; legislative intent; requirements.--

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

30  board may, shall create unreasonably restrictive and

31  extraordinary standards that deter qualified persons from

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                                                  SENATE AMENDMENT

    Bill No. HB 4119, 1st Eng.

    Amendment No.    





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

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

 3  tends to create or maintain an economic condition that

 4  unreasonably restricts competition, except as specifically

 5  provided by law.

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

 7  regulation that has an unreasonable effect on job creation or

 8  job retention in the state or that places unreasonable

 9  restrictions on the ability of individuals who seek to

10  practice or who are practicing a profession or occupation to

11  find employment.

12         (c)  The Legislature shall evaluate proposals to

13  increase regulation of professions or occupations to determine

14  their effect on job creation or retention and employment

15  opportunities.

16         Section 11.  Except as otherwise provided in this act,

17  this act shall take effect upon becoming a law.

18

19

20  ================ T I T L E   A M E N D M E N T ===============

21  And the title is amended as follows:

22          Delete everything before the enacting clause

23

24  and insert:

25                  A bill to be entitled

26         An act relating to professional regulation;

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

28         evaluating new regulation; amending s. 455.201,

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

30         Professional Regulation to consider the impact

31         on jobs when considering new regulation;

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                                                  SENATE AMENDMENT

    Bill No. HB 4119, 1st Eng.

    Amendment No.    





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

 2         department rulemaking authority; amending ss.

 3         455.209, 455.213, 455.218, F.S.; conforming

 4         provisions to a previous administrative

 5         reorganization; amending s. 455.225, F.S.;

 6         revising probable-cause provisions; prescribing

 7         authority of the department or a board in cases

 8         of failure to comply with continuing-education

 9         requirements; conforming provisions to a

10         previous administrative reorganization;

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

12         provisions to a previous administrative

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

14         requiring the Department of Health to consider

15         the impact on jobs when creating new

16         regulation; providing effective dates.

17

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