Senate Bill 0850

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



    Florida Senate - 1998                                   SB 850

    By Senator Turner





    36-730-98                                          See HB 3317

  1                      A bill to be entitled

  2         An act relating to public records and meetings;

  3         amending s. 491.0047, F.S.; providing for

  4         application of public records exemptions in ss.

  5         455.621(2) and (10) and 455.707(3)(e) and

  6         (5)(a), F.S., to certain information concerning

  7         art therapists, registered art therapist

  8         interns, and provisional art therapists;

  9         providing for application of the public

10         meetings exemption in s. 455.621(4), F.S., to

11         proceedings of a probable cause panel with

12         respect to investigations concerning such

13         practitioners; providing for future review and

14         repeal; providing a finding of public

15         necessity; providing a contingent effective

16         date.

17

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

19

20         Section 1.  Section 491.0047, Florida Statutes, is

21  amended to read:

22         491.0047  Exemptions from public records and meetings

23  requirements.--

24         (1)  The exemptions from s. 119.07(1) provided by ss.

25  455.621 455.225(2) and (10) and 455.707 455.261(3)(e) and

26  (5)(a) also apply to information concerning a provisional

27  psychologist regulated by the Agency for Health Care

28  Administration and the Department of Health under chapter 490,

29  a registered clinical social worker intern, a registered

30  marriage and family therapist intern, a registered mental

31  health counselor intern, a provisional clinical social worker,

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






    Florida Senate - 1998                                   SB 850
    36-730-98                                          See HB 3317




  1  a provisional marriage and family therapist, or a provisional

  2  mental health counselor regulated by the Agency for Health

  3  Care Administration and the department of Health under this

  4  chapter. The exemption from s. 286.011 provided by s. 455.621

  5  455.225(4) also applies to the proceedings of a probable cause

  6  panel with respect to an investigation concerning a

  7  provisional psychologist, a registered clinical social worker

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

  9  registered mental health counselor intern, a provisional

10  clinical social worker, a provisional marriage and family

11  therapist, or a provisional mental health counselor regulated

12  by the agency and department under chapter 490 or this

13  chapter. This subsection section is subject to the Open

14  Government Sunset Review Act of 1995 in accordance with s.

15  119.15 and shall stand repealed on October 2, 2002, unless

16  reviewed and saved from repeal through reenactment by the

17  Legislature.

18         (2)  The exemptions from s. 119.07(1) provided by ss.

19  455.621(2) and (10) and 455.707(3)(e) and (5)(a) also apply to

20  information concerning an art therapist, a registered art

21  therapist intern, or a provisional art therapist regulated by

22  the Agency for Health Care Administration and the department

23  under this chapter. The exemption from s. 286.011 provided by

24  s. 455.621(4) also applies to the proceedings of a probable

25  cause panel with respect to an investigation concerning an art

26  therapist, a registered art therapist intern, or a provisional

27  art therapist regulated by the agency and department under

28  this chapter. This subsection is subject to the Open

29  Government Sunset Review Act of 1995 in accordance with s.

30  119.15 and shall stand repealed on October 2, 2003, unless

31

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






    Florida Senate - 1998                                   SB 850
    36-730-98                                          See HB 3317




  1  reviewed and saved from repeal through reenactment by the

  2  Legislature.

  3         Section 2.  Subsections (2), (4), and (10) of section

  4  455.621, Florida Statutes, read:

  5         455.621  Disciplinary proceedings.--Disciplinary

  6  proceedings for each board shall be within the jurisdiction of

  7  the department.

  8         (2)  The department shall allocate sufficient and

  9  adequately trained staff to expeditiously and thoroughly

10  determine legal sufficiency and investigate all legally

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

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

13  that the department complete the report of its initial

14  investigative findings and recommendations concerning the

15  existence of probable cause within 6 months after its receipt

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

17  disciplinary cases under its jurisdiction, to comply with the

18  time limits of this section while investigating a complaint

19  against a licensee constitutes harmless error in any

20  subsequent disciplinary action unless a court finds that

21  either the fairness of the proceeding or the correctness of

22  the action may have been impaired by a material error in

23  procedure or a failure to follow prescribed procedure.  When

24  its investigation is complete and legally sufficient, the

25  department shall prepare and submit to the probable cause

26  panel of the appropriate regulatory board the investigative

27  report of the department. The report shall contain the

28  investigative findings and the recommendations of the

29  department concerning the existence of probable cause. At any

30  time after legal sufficiency is found, the department may

31  dismiss any case, or any part thereof, if the department

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    Florida Senate - 1998                                   SB 850
    36-730-98                                          See HB 3317




  1  determines that there is insufficient evidence to support the

  2  prosecution of allegations contained therein. The department

  3  shall provide a detailed report to the appropriate probable

  4  cause panel prior to dismissal of any case or part thereof,

  5  and to the subject of the complaint after dismissal of any

  6  case or part thereof, under this section. For cases dismissed

  7  prior to a finding of probable cause, such report is

  8  confidential and exempt from s. 119.07(1). The probable cause

  9  panel shall have access, upon request, to the investigative

10  files pertaining to a case prior to dismissal of such case. If

11  the department dismisses a case, the probable cause panel may

12  retain independent legal counsel, employ investigators, and

13  continue the investigation and prosecution of the case as it

14  deems necessary.

15         (4)  The determination as to whether probable cause

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

17  panel of the board, or by the department, as appropriate. Each

18  regulatory board shall provide by rule that the determination

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

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

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

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

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

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

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

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

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

28  consumer members, if one is available, is willing to serve,

29  and is authorized to do so by the board chairman. Any probable

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

31  cause panel must include a former or present professional

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    Florida Senate - 1998                                   SB 850
    36-730-98                                          See HB 3317




  1  board member. However, any former professional board member

  2  serving on the probable cause panel must hold an active valid

  3  license for that profession. All proceedings of the panel are

  4  exempt from s. 286.011 until 10 days after probable cause has

  5  been found to exist by the panel or until the subject of the

  6  investigation waives his privilege of confidentiality. The

  7  probable cause panel may make a reasonable request, and upon

  8  such request the department shall provide such additional

  9  investigative information as is necessary to the determination

10  of probable cause. A request for additional investigative

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

12  receipt by the probable cause panel of the investigative

13  report of the department or the agency. The probable cause

14  panel or the department, as may be appropriate, shall make its

15  determination of probable cause within 30 days after receipt

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

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

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

19  probable cause panel, or the department if there is no board,

20  may issue a letter of guidance to the subject. If, within the

21  30-day time limit, as may be extended, the probable cause

22  panel does not make a determination regarding the existence of

23  probable cause or does not issue a letter of guidance in lieu

24  of a finding of probable cause, the department must make a

25  determination regarding the existence of probable cause within

26  10 days after the expiration of the time limit.  If the

27  probable cause panel finds that probable cause exists, it

28  shall direct the department to file a formal complaint against

29  the licensee. The department shall follow the directions of

30  the probable cause panel regarding the filing of a formal

31  complaint. If directed to do so, the department shall file a

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    Florida Senate - 1998                                   SB 850
    36-730-98                                          See HB 3317




  1  formal complaint against the subject of the investigation and

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

  3  department may decide not to prosecute the complaint if it

  4  finds that probable cause has been improvidently found by the

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

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

  7  prosecute the complaint pursuant to chapter 120. The

  8  department shall also refer to the board any investigation or

  9  disciplinary proceeding not before the Division of

10  Administrative Hearings pursuant to chapter 120 or otherwise

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

12  a complaint. The department, for disciplinary cases under its

13  jurisdiction, must establish a uniform reporting system to

14  quarterly refer to each board the status of any investigation

15  or disciplinary proceeding that is not before the Division of

16  Administrative Hearings or otherwise completed by the

17  department within 1 year after the filing of the complaint.

18  Annually, the department 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 department within 1 year after the filing of the

23  complaint.  A probable cause panel or a board may retain

24  independent legal counsel, employ investigators, and continue

25  the investigation as it deems necessary; all costs thereof

26  shall be paid from a trust fund used by the department to

27  implement this part.  All proceedings of the probable cause

28  panel are exempt from s. 120.525.

29         (10)  The complaint and all information obtained

30  pursuant to the investigation by the department are

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

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    Florida Senate - 1998                                   SB 850
    36-730-98                                          See HB 3317




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

  2  panel or by the department, or until the regulated

  3  professional or subject of the investigation waives his

  4  privilege of confidentiality, whichever occurs first. Upon

  5  completion of the investigation and pursuant to a written

  6  request by the subject, the department shall provide the

  7  subject an opportunity to inspect the investigative file or,

  8  at the subject's expense, forward to the subject a copy of the

  9  investigative file. Notwithstanding s. 455.667, the subject

10  may inspect or receive a copy of any expert witness report or

11  patient record connected with the investigation if the subject

12  agrees in writing to maintain the confidentiality of any

13  information received under this subsection until 10 days after

14  probable cause is found and to maintain the confidentiality of

15  patient records pursuant to s. 455.667. The subject may file a

16  written response to the information contained in the

17  investigative file. Such response must be filed within 20

18  days, unless an extension of time has been granted by the

19  department. This subsection does not prohibit the department

20  from providing such information to any law enforcement agency

21  or to any other regulatory agency.

22         Section 3.  Paragraph (e) of subsection (3) and

23  paragraph (a) of subsection (5) of section 455.707, Florida

24  Statutes, read:

25         455.707  Treatment programs for impaired

26  practitioners.--

27         (3)

28         (e)  The probable cause panel, or the department when

29  there is no board, shall work directly with the consultant,

30  and all information concerning a practitioner obtained from

31  the consultant by the panel, or the department when there is

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    Florida Senate - 1998                                   SB 850
    36-730-98                                          See HB 3317




  1  no board, shall remain confidential and exempt from the

  2  provisions of s. 119.07(1), subject to the provisions of

  3  subsections (5) and (6).

  4         (5)(a)  An approved treatment provider shall, upon

  5  request, disclose to the consultant all information in its

  6  possession regarding the issue of a licensee's impairment and

  7  participation in the treatment program.  All information

  8  obtained by the consultant and department pursuant to this

  9  section is confidential and exempt from the provisions of s.

10  119.07(1), subject to the provisions of this subsection and

11  subsection (6). Failure to provide such information to the

12  consultant is grounds for withdrawal of approval of such

13  program or provider.

14         Section 4.  The Legislature finds that the disclosure

15  of information concerning an investigation of a practitioner

16  regulated under chapter 491, Florida Statutes, and the

17  disclosure of information concerning an impaired practitioner

18  regulated under chapter 491, Florida Statutes, would

19  constitute an unwarranted invasion into the personal privacy

20  of the practitioner. In addition, the Legislature finds that

21  it is necessary that the meetings of a probable cause panel

22  investigating a practitioner regulated under chapter 491,

23  Florida Statutes, be exempt from s. 286.011, Florida Statutes,

24  until 10 days after probable cause has been found to exist by

25  the panel or until the subject of the investigation waives his

26  or her privilege of confidentiality. Therefore, the

27  Legislature finds that it is a public necessity that certain

28  information of the Agency for Health Care Administration and

29  the Department of Health with respect to an art therapist, a

30  registered art therapist intern, or a provisional art

31  therapist be kept confidential and exempt from disclosure

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    Florida Senate - 1998                                   SB 850
    36-730-98                                          See HB 3317




  1  under the public records law. The Legislature further finds

  2  that it is a public necessity that proceedings of a probable

  3  cause panel with respect to an art therapist, a registered art

  4  therapist intern, or a provisional art therapist be exempt for

  5  a certain period from the public meetings law.

  6         Section 5.  This act shall take effect on the same date

  7  that House Bill     or similar legislation revising chapter

  8  491, Florida Statutes, to create the categories of art

  9  therapists specified in this act takes effect, if such

10  legislation is adopted in the same legislative session or an

11  extension thereof.

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13            *****************************************

14                          HOUSE SUMMARY

15
      Provides for application of public records exemptions in
16    ss. 455.621(2) and (10) and 455.707(3)(e) and (5)(a),
      F.S., to certain information concerning art therapists,
17    registered art therapist interns, and provisional art
      therapists. Provides for application of the public
18    meetings exemption in s. 455.621(4), F.S., to proceedings
      of a probable cause panel with respect to investigations
19    concerning such practitioners. Provides for future review
      and repeal. Provides a finding of public necessity.
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