Senate Bill 0190c1

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    Florida Senate - 1999                            CS for SB 190

    By the Committee on Regulated Industries





    315-1921A-99

  1                      A bill to be entitled

  2         An act relating to regulation of professions

  3         and occupations under the Department of

  4         Business and Professional Regulation; creating

  5         s. 455.2177, F.S.; requiring the department to

  6         establish a system to monitor licensee

  7         compliance with applicable continuing education

  8         requirements; authorizing the department to

  9         contract with one or more vendors for the

10         monitoring of compliance with applicable

11         continuing education requirements by all

12         licensees within one or more professions

13         regulated by the department; providing contract

14         terms and conditions; providing for funding of

15         contracts; providing sanctions for failure to

16         comply and requiring notice thereof; providing

17         for disposition of fine revenues; providing for

18         exclusivity of sanctions over certain other

19         disciplinary provisions; providing for a

20         dispute resolution process; providing for

21         suspension of a contract for failure of a

22         vendor to meet its contract obligations;

23         providing for waiver under specified

24         circumstances; providing rulemaking authority;

25         creating s. 455.2178, F.S.; providing

26         requirements of continuing education providers

27         with respect to cooperating with such vendors;

28         providing conditions on approval of continuing

29         education providers; providing for revocation

30         of provider approval for failure to comply;

31         providing rulemaking authority; creating s.

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    Florida Senate - 1999                            CS for SB 190
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  1         455.2179, F.S.; providing limits on continuing

  2         education provider approval; providing for

  3         cease and desist orders and revocation of

  4         provider approval thereunder; amending s.

  5         455.2281, F.S.; providing for allocation of

  6         certain funds to cover the costs of continuing

  7         education compliance monitoring; providing for

  8         crediting, by profession, fines collected under

  9         the compliance monitoring system; providing for

10         inclusion of financial and statistical data

11         resulting from compliance monitoring as a

12         separate category in the department's quarterly

13         management report to each board; amending s.

14         455.224, F.S.; providing for adoption by the

15         department of rules to permit the issuance of

16         citations, whether or not there is a board;

17         amending s. 468.4315, F.S.; authorizing the

18         Regulatory Council of Community Association

19         Managers to adopt rules relating to continuing

20         education providers; amending s. 477.019, F.S.;

21         revising provisions relating to continuing

22         education requirements of cosmetologists;

23         providing an effective date.

24

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

26

27         Section 1.  Section 455.2177, Florida Statutes, is

28  created to read:

29         455.2177  Monitoring of compliance with continuing

30  education requirements.--

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    Florida Senate - 1999                            CS for SB 190
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  1         (1)  The department shall establish a system to monitor

  2  licensee compliance with applicable continuing education

  3  requirements and to determine each licensee's continuing

  4  education status. The department is authorized to provide for

  5  a phase-in of the compliance monitoring system, but the system

  6  must provide for monitoring of compliance with applicable

  7  continuing education requirements by all professions regulated

  8  by the department no later than July 1, 2002. The compliance

  9  monitoring system may use staff of the department or may be

10  privatized. As used in this section, the term "monitor" means

11  the act of determining, for each licensee, whether the

12  licensee was in full compliance with applicable continuing

13  education requirements as of the time of the licensee's

14  license renewal.

15         (2)  If the compliance monitoring system required under

16  this section is privatized, the following provisions apply:

17         (a)  The department may contract pursuant to s. 287.057

18  with a vendor or vendors for the monitoring of compliance with

19  applicable continuing education requirements by all licensees

20  within one or more professions regulated by the department.

21  The contract shall include, but need not be limited to, the

22  following terms and conditions:

23         1.a.  The vendor shall create a computer database, in

24  the form required by the department, that includes the

25  continuing education status of each licensee and shall provide

26  a report to the department within 90 days after the vendor

27  receives the list of licensees to be monitored as provided in

28  sub-subparagraph b. The report shall be in a format determined

29  by the department and shall include each licensee's continuing

30  education status by license number, hours of continuing

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    Florida Senate - 1999                            CS for SB 190
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  1  education credit per cycle, and such other information the

  2  department deems necessary.

  3         b.  No later than 30 days after the end of each renewal

  4  period, the department shall provide to the vendor a list that

  5  includes all licensees of a particular profession whose

  6  licenses were renewed during a particular renewal period. In

  7  order to account for late renewals, the department shall

  8  provide the vendor with such updates to the list as are

  9  mutually determined to be necessary.

10         2.a.  Before the vendor informs the department of the

11  status of any licensee the vendor has determined is not in

12  compliance with continuing education requirements, the vendor,

13  acting on behalf of the department, shall provide the licensee

14  with a notice stating that the vendor has determined that the

15  licensee is not in compliance with applicable continuing

16  education requirements. The notice shall also include the

17  licensee's continuing education record for the renewal period,

18  as shown in the records of the vendor, and a description of

19  the process for correcting the vendor's record under

20  sub-subparagraph b.

21         b.  The vendor shall give the licensee 45 days to

22  correct the vendor's information. The vendor shall correct a

23  record only on the basis of evidence of compliance supplied to

24  the vendor by a continuing education provider.

25         3.a.  The vendor must provide the department, with the

26  report required under subparagraph 1., a list, in a form

27  determined by the department, identifying each licensee who

28  the vendor has determined is not in compliance with applicable

29  continuing education requirements.

30         b.  The vendor shall provide the department with access

31  to such information and services as the department deems

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    Florida Senate - 1999                            CS for SB 190
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  1  necessary to ensure that the actions of the vendor conform to

  2  the contract and to the duties of the department and the

  3  vendor under this subsection.

  4         4.  The department shall ensure the vendor access to

  5  such information from continuing education providers as is

  6  necessary to determine the continuing education record of each

  7  licensee. The vendor shall inform the department of any

  8  provider that fails to provide such information to the vendor.

  9         5.  If the vendor fails to comply with a provision of

10  the contract, the vendor is obligated to pay the department

11  liquidated damages in the amounts specified in the contract.

12         6.  The department's payments to the vendor must be

13  based on the number of licensees monitored. The department may

14  allocate from the unlicensed activity account of any

15  profession under s. 455.2281 up to $2 per licensee for the

16  monitoring of that profession's licensees under this

17  subsection, which allocations are the exclusive source of

18  funding for contracts under this subsection.

19         7.  A continuing education provider is not eligible to

20  be a vendor under this subsection.

21         (b)  When it receives notice from a vendor that a

22  licensee is not in compliance with continuing education

23  requirements, the department shall send the licensee written

24  notice that disciplinary actions will be taken, together with

25  a description of the remedies available to the licensee under

26  the dispute resolution process created under paragraph (c). If

27  a licensee does not prevail in the dispute resolution process,

28  the department:

29         1.  May impose an administrative fine in the amount of

30  $500 against the licensee; however, the department may reduce

31  the amount of the fine to $250 if the licensee comes into

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    Florida Senate - 1999                            CS for SB 190
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  1  compliance with the applicable continuing education

  2  requirements within 90 days after imposition of the original

  3  fine. All proceeds of fines under this subparagraph shall be

  4  deposited in the appropriate unlicensed activity account under

  5  s. 455.2281.

  6         2.  May refuse any further renewal of the licensee's

  7  license unless the licensee has paid the fine and satisfied

  8  the applicable continuing education requirements.

  9         (c)  The department is authorized to adopt by rule a

10  process for the resolution of disputes between a vendor and a

11  continuing education provider, between a vendor and a

12  licensee, and between a licensee and a continuing education

13  provider. The process shall ensure all parties a fair

14  opportunity to correct any erroneous information. If the

15  parties are unable to reach an agreement, the department shall

16  determine the resolution of the dispute.

17         (d)  Upon the failure of a vendor to meet its

18  obligations under a contract as provided in paragraph (a), the

19  department may suspend the contract and enter into an

20  emergency contract under s. 287.057(3).

21         (3)  Notwithstanding any other provision of law to the

22  contrary and regardless of whether the compliance monitoring

23  system is privatized, neither the department nor a board may

24  impose any sanction other than the sanctions specified in

25  paragraph (2)(b) for the failure of a licensee to meet

26  continuing education requirements. This subsection does not

27  apply to actions under chapter 473.

28         (4)  The department shall waive the continuing

29  education monitoring requirements of this section for any

30  profession that demonstrates to the department that it has a

31  program in place which measures compliance with continuing

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    Florida Senate - 1999                            CS for SB 190
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  1  education requirements through statistical sampling techniques

  2  or other methods and can indicate that at least 95 percent of

  3  its licensees are in compliance.

  4         (5)  The department is authorized to adopt rules to

  5  implement this section.

  6         Section 2.  Section 455.2178, Florida Statutes, is

  7  created to read:

  8         455.2178  Continuing education providers.--If the

  9  monitoring of compliance with continuing education

10  requirements is privatized pursuant to s. 455.2177:

11         (1)(a)  The department shall notify each approved

12  continuing education provider of the name and address of all

13  vendors that monitor compliance of licensees under s.

14  455.2177. If the department contracts with more than one

15  vendor under s. 455.2177, the notice shall specify the

16  professions to be monitored by each vendor.

17         (b)  Each continuing education provider shall provide

18  to the appropriate vendor such information regarding the

19  continuing education status of licensees as the department

20  determines is necessary for the vendor to carry out its duties

21  under s. 455.2177(2), in a form determined by the department.

22  The information must be submitted to the vendor electronically

23  no later than 5 business days after a licensee's completion of

24  a course. Upon the request of a licensee, the provider must

25  also furnish to a vendor information regarding courses

26  completed by the licensee.

27         (2)  Each continuing education provider shall retain

28  all records relating to a licensee's completion of continuing

29  education courses for at least 4 years after completion of a

30  course.

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    Florida Senate - 1999                            CS for SB 190
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  1         (3)  A continuing education provider may not be

  2  approved, and the approval may not be renewed, unless the

  3  provider agrees in writing to provide such cooperation with

  4  vendors under s. 455.2177 as the department deems necessary or

  5  appropriate.

  6         (4)  The department may immediately revoke approval of

  7  any continuing education provider that fails to comply with

  8  its duties under this section.

  9         (5)  For the purpose of determining which persons or

10  entities must meet the reporting, recordkeeping, and access

11  provisions of this section, the board of any profession

12  subject to this section, or the department if there is no

13  board, shall, by rule, adopt a definition of the term

14  "continuing education provider" applicable to the profession's

15  continuing education requirements. The intent of the rule

16  shall be to ensure that all records and information necessary

17  to carry out the requirements of this section and s. 455.2177

18  are maintained and transmitted accordingly and to minimize

19  disputes as to what person or entity is responsible for

20  maintaining and reporting such records and information.

21         (6)  The department has the authority to adopt rules to

22  implement this section.

23         Section 3.  Section 455.2179, Florida Statutes, is

24  created to read:

25         455.2179  Continuing education provider approval; cease

26  and desist orders.--

27         (1)  If a board, or the department if there is no

28  board, requires approval of a continuing education provider,

29  the approval must be for a specified period of time, not to

30  exceed 4 years. An approval that does not include such a time

31  limitation may remain in effect only until July 1, 2001,

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    Florida Senate - 1999                            CS for SB 190
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  1  unless earlier replaced by an approval that includes such a

  2  time limitation.

  3         (2)  The department, on its own motion or at the

  4  request of a board, shall issue an order requiring a person or

  5  entity to cease and desist from offering any continuing

  6  education programs for licensees, and revoking any approval of

  7  the provider previously granted by the department or a board,

  8  if the department or a board determines that the person or

  9  entity failed to provide appropriate continuing education

10  services that conform to approved course material.

11         Section 4.  Section 455.2281, Florida Statutes, is

12  amended to read:

13         455.2281  Unlicensed activities; fees; disposition.--In

14  order to protect the public and to ensure a consumer-oriented

15  department, it is the intent of the Legislature that vigorous

16  enforcement of regulation for all professional activities is a

17  state priority. All enforcement costs should be covered by

18  professions regulated by the department. Therefore, the

19  department shall impose, upon initial licensure and each

20  renewal thereof, a special fee of $5 per licensee. Such fee

21  shall be in addition to all other fees collected from each

22  licensee and shall fund efforts to combat unlicensed activity.

23  The board with concurrence of the department, or the

24  department when there is no board, may earmark $5 of the

25  current licensure fee for this purpose, if such board, or

26  profession regulated by the department, is not in a deficit

27  and has a reasonable cash balance. The department shall make

28  direct charges to this fund by profession and shall not

29  allocate indirect overhead. The department shall seek board

30  advice regarding enforcement methods and strategies prior to

31  expenditure of funds; however, the department may, without

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    Florida Senate - 1999                            CS for SB 190
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  1  board advice, allocate funds to cover the costs of continuing

  2  education compliance monitoring under s. 455.2177. The

  3  department shall directly credit, by profession, revenues

  4  received from the department's efforts to enforce licensure

  5  provisions, including revenues received from fines collected

  6  under s. 455.2177. The department shall include all financial

  7  and statistical data resulting from unlicensed activity

  8  enforcement and from continuing education compliance

  9  monitoring as a separate categories category in the quarterly

10  management report provided for in s. 455.219. The department

11  shall not charge the account of any profession for the costs

12  incurred on behalf of any other profession. For an unlicensed

13  activity account, a balance which remains at the end of a

14  renewal cycle may, with concurrence of the applicable board

15  and the department, be transferred to the operating fund

16  account of that profession.

17         Section 5.  Subsection (1) of section 455.224, Florida

18  Statutes, is amended to read:

19         455.224  Authority to issue citations.--

20         (1)  Notwithstanding s. 455.225, the board, or the

21  department when there is no board, shall adopt rules to permit

22  the issuance of citations. The citation shall be issued to the

23  subject and shall contain the subject's name and address, the

24  subject's license number if applicable, a brief factual

25  statement, the sections of the law allegedly violated, and the

26  penalty imposed. The citation must clearly state that the

27  subject may choose, in lieu of accepting the citation, to

28  follow the procedure under s. 455.225. If the subject disputes

29  the matter in the citation, the procedures set forth in s.

30  455.225 must be followed. However, if the subject does not

31  dispute the matter in the citation with the department within

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  1  30 days after the citation is served, the citation becomes a

  2  final order and constitutes discipline. The penalty shall be a

  3  fine or other conditions as established by rule.

  4         Section 6.  Subsection (2) of section 468.4315, Florida

  5  Statutes, 1998 Supplement, is amended to read:

  6         468.4315  Regulatory Council of Community Association

  7  Managers.--

  8         (2)  The council may adopt rules relating to the

  9  licensure examination, continuing education requirements,

10  continuing education providers, fees, and professional

11  practice standards to assist the department in carrying out

12  the duties and authorities conferred upon the department by

13  this part.

14         Section 7.  Subsection (7) of section 477.019, Florida

15  Statutes, 1998 Supplement, is amended to read:

16         477.019  Cosmetologists; qualifications; licensure;

17  supervised practice; license renewal; endorsement; continuing

18  education.--

19         (7)(a)  The board shall prescribe by rule continuing

20  education requirements intended to ensure protection of the

21  public through updated training of licensees and registered

22  specialists, not to exceed 16 hours biennially, as a condition

23  for renewal of a license or registration as a specialist under

24  this chapter. Continuing education courses shall include, but

25  not be limited to, the following subjects as they relate to

26  the practice of cosmetology:  human immunodeficiency virus and

27  acquired immune deficiency syndrome; Occupational Safety and

28  Health Administration regulations; workers' compensation

29  issues; state and federal laws and rules as they pertain to

30  cosmetologists, cosmetology, salons, specialists, specialty

31  salons, and booth renters; chemical makeup as it pertains to

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  1  hair, skin, and nails; and environmental issues. Courses given

  2  at cosmetology conferences may be counted toward the number of

  3  continuing education hours required if approved by the board.

  4         (b)  The department may privatize provider and course

  5  approval and the monitoring of continuing education

  6  requirements under a contract which ensures that the services

  7  will be without cost to the department or board, including the

  8  cost of appropriate oversight by the department. The

  9  department may contract with one or more private entities for

10  the provision of such services, including the collection of

11  fees for the services rendered. The department and board shall

12  retain final authority for licensure decisions, rulemaking

13  related to continuing education system requirements,

14  noncompliance noticing, and overall implementation of any

15  privatization project under this subsection.

16         (b)(c)  Any person whose occupation or practice is

17  confined solely to hair braiding or hair wrapping is exempt

18  from the continuing education requirements of this subsection.

19         (c)(d)  Notwithstanding any provision of law to the

20  contrary, enforcement of mandatory continuing education

21  requirements pursuant to this chapter shall be accomplished

22  only as a secondary action when a person is investigated for

23  another violation. However, The board may, by rule, require

24  any licensee in violation of a continuing education

25  requirement to take a refresher course or refresher course and

26  examination in addition to any other penalty. The number of

27  hours for the refresher course may not exceed 48 hours.

28         Section 8.  This act shall take effect July 1, 1999.

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    Florida Senate - 1999                            CS for SB 190
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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                              SB 190

  3

  4  Requires the Department of Business and Professional
    Regulation by July 1, 2002, to monitor 100% of professional
  5  licenses for compliance with continuing education
    requirements.
  6
    Allows the department to privatize the compliance monitoring
  7  system, in accordance with specific responsibilities that are
    spelled out for the department, the contract vendor, and the
  8  continuing education provider.

  9  Allows the department to allocate funds to cover the costs of
    continuing education compliance monitoring without board
10  advice.

11  Establishes that the department or the applicable board can
    adopt rules to permit the issuance of sanctions.
12
    Gives the Regulatory Council of Community Association Managers
13  rulemaking authority relating to continuing education
    providers.
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    Amends the cosmetology act to delete privatization and
15  discipline provisions that conflict with the provisions of
    this bill.
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