Senate Bill 1028c1

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    Florida Senate - 2000                           CS for SB 1028

    By the Committee on Health, Aging and Long-Term Care; and
    Senator Campbell




    317-1885-00

  1                      A bill to be entitled

  2         An act relating to the unlicensed practice of a

  3         health care profession; amending s. 455.637,

  4         F.S.; revising provisions relating to sanctions

  5         against the unlicensed practice of a health

  6         care profession; providing legislative intent;

  7         revising and expanding provisions relating to

  8         civil and administrative remedies; providing

  9         criminal penalties; incorporating and modifying

10         the substance of current provisions that impose

11         a fee to combat unlicensed activity and provide

12         for disposition of the proceeds thereof;

13         providing applicability; repealing s. 455.641,

14         F.S., relating to unlicensed activity fees, to

15         conform; reenacting ss. 455.574(1)(d),

16         468.1295(1), 484.014(1), 484.056(1), F.S.,

17         relating to violation of security provisions

18         for examinations and violations involving

19         speech-language pathology, audiology,

20         opticianry, and the dispensing of hearing aids,

21         to incorporate the amendment to s. 455.637,

22         F.S., in references thereto; creating s.

23         455.665, F.S.; requiring a specified statement

24         in any advertisement by a health care

25         practitioner for a surgical procedure; amending

26         s. 921.0022, F.S.; modifying the criminal

27         offense severity ranking chart to include

28         offenses relating to unlicensed practice of a

29         health care profession; providing an effective

30         date.

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  1         WHEREAS, the protection of Florida residents and

  2  visitors from death or serious bodily injury that may be

  3  caused by unlicensed health care practitioners is a state

  4  priority, and

  5         WHEREAS, the existing criminal prohibitions have not

  6  been vigorously enforced in the past, and

  7         WHEREAS, the existing penalties are not severe enough

  8  to deter the unlicensed practice of the health care

  9  professions, and

10         WHEREAS, persons convicted of practicing without a

11  license should be imprisoned so they cannot continue to hurt

12  Floridians, and

13         WHEREAS, persons convicted of practicing without a

14  license who are not citizens of this country should be

15  deported following incarceration to guarantee that they cannot

16  continue to endanger Floridians, NOW, THEREFORE,

17

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

19

20         Section 1.  Section 455.637, Florida Statutes, is

21  amended to read:

22         455.637  Unlicensed practice of a health care

23  profession; intent; cease and desist notice; penalties civil

24  penalty; enforcement; citations; fees; allocation and

25  disposition of moneys collected.--

26         (1)  It is the intent of the Legislature that vigorous

27  enforcement of licensure regulation for all health care

28  professions is a state priority in order to protect Florida

29  residents and visitors from the potentially serious and

30  dangerous consequences of receiving medical and health care

31  services from unlicensed persons whose professional education

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  1  and training and other relevant qualifications have not been

  2  approved through the issuance of a license by the appropriate

  3  regulatory board or the department when there is no board. The

  4  unlicensed practice of a health care profession or the

  5  performance or delivery of medical or health care services to

  6  patients in this state without a valid, active license to

  7  practice that profession is strictly prohibited.

  8         (2)  The penalties for unlicensed practice of a health

  9  care profession shall include the following:

10         (a)(1)  When the department has probable cause to

11  believe that any person not licensed by the department, or the

12  appropriate regulatory board within the department, has

13  violated any provision of this part or any statute that

14  relates to the practice of a profession regulated by the

15  department, or any rule adopted pursuant thereto, the

16  department may issue and deliver to such person a notice to

17  cease and desist from such violation. In addition, the

18  department may issue and deliver a notice to cease and desist

19  to any person who aids and abets the unlicensed practice of a

20  profession by employing such unlicensed person. The issuance

21  of a notice to cease and desist shall not constitute agency

22  action for which a hearing under ss. 120.569 and 120.57 may be

23  sought. For the purpose of enforcing a cease and desist order,

24  the department may file a proceeding in the name of the state

25  seeking issuance of an injunction or a writ of mandamus

26  against any person who violates any provisions of such order.

27         (b)  In addition to the foregoing remedies under

28  paragraph (a), the department may impose by citation an

29  administrative penalty not to exceed $5,000 per incident

30  pursuant to the provisions of chapter 120 or may issue a

31  citation pursuant to the provisions of subsection (3). The

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  1  citation shall be issued to the subject and shall contain the

  2  subject's name and any other information the department

  3  determines to be necessary to identify the subject, a brief

  4  factual statement, the sections of the law allegedly violated,

  5  and the penalty imposed. If the subject does not dispute the

  6  matter in the citation with the department within 30 days

  7  after the citation is served, the citation shall become a

  8  final order of the department. The department may adopt rules

  9  to implement this section. The penalty shall be a fine of not

10  less than $500 nor more than $5,000 as established by rule of

11  the department. Each day that the unlicensed practice

12  continues after issuance of a notice to cease and desist

13  constitutes a separate violation. The department shall be

14  entitled to recover the costs of investigation and prosecution

15  in addition to the fine levied pursuant to the citation.

16  Service of a citation may be made by personal service or by

17  mail to the subject at the subject's last known address or

18  place of practice. If the department is required to seek

19  enforcement of the cease and desist or agency order for a

20  penalty pursuant to s. 120.569, it shall be entitled to

21  collect its attorney's fees and costs, together with any cost

22  of collection.

23         (c)(2)  In addition to or in lieu of any other

24  administrative remedy provided in subsection (1), the

25  department may seek the imposition of a civil penalty through

26  the circuit court for any violation for which the department

27  may issue a notice to cease and desist under subsection (1).

28  The civil penalty shall be no less than $500 and no more than

29  $5,000 for each offense. The court may also award to the

30  prevailing party court costs and reasonable attorney fees and,

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  1  in the event the department prevails, may also award

  2  reasonable costs of investigation and prosecution.

  3         (d)  In addition to the administrative and civil

  4  remedies under paragraphs (b) and (c) and in addition to the

  5  criminal violations and penalties listed in the individual

  6  health care practice acts:

  7         1.  It is a felony of the third degree, punishable as

  8  provided in s. 775.082, s. 775.083, or s. 775.084, to

  9  practice, attempt to practice, or offer to practice a health

10  care profession without an active, valid Florida license to

11  practice that profession. Practicing without an active, valid

12  license also includes practicing on a suspended, revoked, or

13  void license but does not include practicing, attempting to

14  practice, or offering to practice with an inactive or

15  delinquent license for any period up to 12 months. Applying

16  for employment for a position that requires a license without

17  notifying the employer that the person does not currently

18  possess a valid, active license to practice that profession

19  shall be deemed to be an attempt or offer to practice that

20  health care profession without a license. Holding oneself out,

21  regardless of the means of communication, as able to practice

22  a health care profession or as able to provide services that

23  require a health care license shall be deemed to be an attempt

24  or offer to practice such profession without a license. The

25  minimum penalty for violating this subparagraph shall be a

26  fine of $1,000 and a minimum mandatory period of incarceration

27  of 1 year.

28         2.  It is a felony of the second degree, punishable as

29  provided in s. 775.082, s. 775.083, or s. 775.084, to practice

30  a health care profession without an active, valid Florida

31  license to practice that profession when such practice results

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  1  in serious bodily injury. For purposes of this section,

  2  "serious bodily injury" means death; brain or spinal damage;

  3  disfigurement; fracture or dislocation of bones or joints;

  4  limitation of neurological, physical, or sensory function; or

  5  any condition that required subsequent surgical repair. The

  6  minimum penalty for violating this subparagraph shall be a

  7  fine of $1,000 and a minimum mandatory period of incarceration

  8  of 1 year.

  9         3.  It is a misdemeanor of the first degree, punishable

10  as provided in s. 775.082 or s. 775.083, to practice, attempt

11  to practice, or offer to practice a health care profession

12  with an inactive or delinquent license for any period of time

13  up to 12 months. However, practicing, attempting to practice,

14  or offering to practice a health care profession when that

15  person's license has been inactive or delinquent for a period

16  of time of 12 months or more shall be a felony of the third

17  degree, punishable as provided in s. 775.082, s. 775.083, or

18  s. 775.084. The minimum penalty for violating this

19  subparagraph shall be a term of imprisonment of 30 days and a

20  fine of $500.

21         (3)  Because all enforcement costs should be covered by

22  professions regulated by the department, the department shall

23  impose, upon initial licensure and each licensure renewal, a

24  special fee of $5 per licensee to fund efforts to combat

25  unlicensed activity. Such fee shall be in addition to all

26  other fees collected from each licensee. The board with

27  concurrence of the department, or the department when there is

28  no board, may earmark $5 of the current licensure fee for this

29  purpose, if such board, or profession regulated by the

30  department, is not in a deficit and has a reasonable cash

31  balance. The department shall make direct charges to the

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  1  Medical Quality Assurance Trust Fund by profession. The

  2  department shall seek board advice regarding enforcement

  3  methods and strategies. The department shall directly credit

  4  the Medical Quality Assurance Trust Fund, by profession, with

  5  the revenues received from the department's efforts to enforce

  6  licensure provisions. The department shall include all

  7  financial and statistical data resulting from unlicensed

  8  activity enforcement as a separate category in the quarterly

  9  management report provided for in s. 455.587. For an

10  unlicensed activity account, a balance which remains at the

11  end of a renewal cycle may, with concurrence of the applicable

12  board and the department, be transferred to the operating fund

13  account of that profession. The department shall also use

14  these funds to inform and educate consumers generally on the

15  importance of using licensed health care practitioners.

16         (3)(a)  Notwithstanding the provisions of s. 455.621,

17  the department shall adopt rules to permit the issuance of

18  citations for unlicensed practice of a profession. The

19  citation shall be issued to the subject and shall contain the

20  subject's name and any other information the department

21  determines to be necessary to identify the subject, a brief

22  factual statement, the sections of the law allegedly violated,

23  and the penalty imposed. The citation must clearly state that

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

25  follow the procedure under s. 455.621. If the subject disputes

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

27  455.621 must be followed. However, if the subject does not

28  dispute the matter in the citation with the department within

29  30 days after the citation is served, the citation shall

30  become a final order of the department. The penalty shall be a

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  1  fine of not less than $500 or more than $5,000 or other

  2  conditions as established by rule.

  3         (b)  Each day that the unlicensed practice continues

  4  after issuance of a citation constitutes a separate violation.

  5         (c)  The department shall be entitled to recover the

  6  costs of investigation, in addition to any penalty provided

  7  according to department rule as part of the penalty levied

  8  pursuant to the citation.

  9         (d)  Service of a citation may be made by personal

10  service or certified mail, restricted delivery, to the subject

11  at the subject's last known address.

12         (4)  All fines, fees, and costs collected through the

13  procedures set forth in this section shall be allocated to the

14  professions in the manner provided for in s. 455.641 for the

15  allocation of the fees assessed and collected to combat

16  unlicensed practice of a profession.

17         (4)(5)  The provisions of this section apply only to

18  health care the professional practice acts administered by the

19  department.

20         Section 2.  The amendment of section 455.637, Florida

21  Statutes, by this act applies to offenses committed on or

22  after the effective date of such section.

23         Section 3.  Section 455.641, Florida Statutes, is

24  repealed.

25         Section 4.  For the purpose of incorporating the

26  amendment to section 455.637, Florida Statutes, in references

27  thereto, paragraph (d) of subsection (1) of section 455.574,

28  Florida Statutes, is reenacted to read:

29         455.574  Department of Health; examinations.--

30         (1)

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  1         (d)  Each board, or the department when there is no

  2  board, shall adopt rules regarding the security and monitoring

  3  of examinations.  The department shall implement those rules

  4  adopted by the respective boards.  In order to maintain the

  5  security of examinations, the department may employ the

  6  procedures set forth in s. 455.637 to seek fines and

  7  injunctive relief against an examinee who violates the

  8  provisions of s. 455.577 or the rules adopted pursuant to this

  9  paragraph.  The department, or any agent thereof, may, for the

10  purposes of investigation, confiscate any written,

11  photographic, or recording material or device in the

12  possession of the examinee at the examination site which the

13  department deems necessary to enforce such provisions or

14  rules.

15         Section 5.  For the purpose of incorporating the

16  amendment to section 455.637, Florida Statutes, in references

17  thereto, subsection (1) of section 468.1295, Florida Statutes,

18  is reenacted to read:

19         468.1295  Disciplinary proceedings.--

20         (1)  The following acts constitute grounds for both

21  disciplinary actions as set forth in subsection (2) and cease

22  and desist or other related actions by the department as set

23  forth in s. 455.637:

24         (a)  Procuring or attempting to procure a license by

25  bribery, by fraudulent misrepresentation, or through an error

26  of the department or the board.

27         (b)  Having a license revoked, suspended, or otherwise

28  acted against, including denial of licensure, by the licensing

29  authority of another state, territory, or country.

30         (c)  Being convicted or found guilty of, or entering a

31  plea of nolo contendere to, regardless of adjudication, a

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  1  crime in any jurisdiction which directly relates to the

  2  practice of speech-language pathology or audiology.

  3         (d)  Making or filing a report or record which the

  4  licensee knows to be false, intentionally or negligently

  5  failing to file a report or records required by state or

  6  federal law, willfully impeding or obstructing such filing, or

  7  inducing another person to impede or obstruct such filing.

  8  Such report or record shall include only those reports or

  9  records which are signed in one's capacity as a licensed

10  speech-language pathologist or audiologist.

11         (e)  Advertising goods or services in a manner which is

12  fraudulent, false, deceptive, or misleading in form or

13  content.

14         (f)  Being proven guilty of fraud or deceit or of

15  negligence, incompetency, or misconduct in the practice of

16  speech-language pathology or audiology.

17         (g)  Violating a lawful order of the board or

18  department previously entered in a disciplinary hearing, or

19  failing to comply with a lawfully issued subpoena of the board

20  or department.

21         (h)  Practicing with a revoked, suspended, inactive, or

22  delinquent license.

23         (i)  Using, or causing or promoting the use of, any

24  advertising matter, promotional literature, testimonial,

25  guarantee, warranty, label, brand, insignia, or other

26  representation, however disseminated or published, which is

27  misleading, deceiving, or untruthful.

28         (j)  Showing or demonstrating or, in the event of sale,

29  delivery of a product unusable or impractical for the purpose

30  represented or implied by such action.

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  1         (k)  Failing to submit to the board on an annual basis,

  2  or such other basis as may be provided by rule, certification

  3  of testing and calibration of such equipment as designated by

  4  the board and on the form approved by the board.

  5         (l)  Aiding, assisting, procuring, employing, or

  6  advising any licensee or business entity to practice

  7  speech-language pathology or audiology contrary to this part,

  8  part II of chapter 455, or any rule adopted pursuant thereto.

  9         (m)  Violating any provision of this part or part II of

10  chapter 455 or any rule adopted pursuant thereto.

11         (n)  Misrepresenting the professional services

12  available in the fitting, sale, adjustment, service, or repair

13  of a hearing aid, or using any other term or title which might

14  connote the availability of professional services when such

15  use is not accurate.

16         (o)  Representing, advertising, or implying that a

17  hearing aid or its repair is guaranteed without providing full

18  disclosure of the identity of the guarantor; the nature,

19  extent, and duration of the guarantee; and the existence of

20  conditions or limitations imposed upon the guarantee.

21         (p)  Representing, directly or by implication, that a

22  hearing aid utilizing bone conduction has certain specified

23  features, such as the absence of anything in the ear or

24  leading to the ear, or the like, without disclosing clearly

25  and conspicuously that the instrument operates on the bone

26  conduction principle and that in many cases of hearing loss

27  this type of instrument may not be suitable.

28         (q)  Stating or implying that the use of any hearing

29  aid will improve or preserve hearing or prevent or retard the

30  progression of a hearing impairment or that it will have any

31  similar or opposite effect.

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  1         (r)  Making any statement regarding the cure of the

  2  cause of a hearing impairment by the use of a hearing aid.

  3         (s)  Representing or implying that a hearing aid is or

  4  will be "custom-made," "made to order," or

  5  "prescription-made," or in any other sense specially

  6  fabricated for an individual, when such is not the case.

  7         (t)  Canvassing from house to house or by telephone,

  8  either in person or by an agent, for the purpose of selling a

  9  hearing aid, except that contacting persons who have evidenced

10  an interest in hearing aids, or have been referred as in need

11  of hearing aids, shall not be considered canvassing.

12         (u)  Failing to notify the department in writing of a

13  change in current mailing and place-of-practice address within

14  30 days after such change.

15         (v)  Failing to provide all information as described in

16  ss. 468.1225(5)(b), 468.1245(1), and 468.1246.

17         (w)  Exercising influence on a client in such a manner

18  as to exploit the client for financial gain of the licensee or

19  of a third party.

20         (x)  Practicing or offering to practice beyond the

21  scope permitted by law or accepting and performing

22  professional responsibilities the licensee or

23  certificateholder knows, or has reason to know, the licensee

24  or certificateholder is not competent to perform.

25         (y)  Aiding, assisting, procuring, or employing any

26  unlicensed person to practice speech-language pathology or

27  audiology.

28         (z)  Delegating or contracting for the performance of

29  professional responsibilities by a person when the licensee

30  delegating or contracting for performance of such

31  responsibilities knows, or has reason to know, such person is

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  1  not qualified by training, experience, and authorization to

  2  perform them.

  3         (aa)  Committing any act upon a patient or client which

  4  would constitute sexual battery or which would constitute

  5  sexual misconduct as defined pursuant to s. 468.1296.

  6         (bb)  Being unable to practice the profession for which

  7  he or she is licensed or certified under this chapter with

  8  reasonable skill or competence as a result of any mental or

  9  physical condition or by reason of illness, drunkenness, or

10  use of drugs, narcotics, chemicals, or any other substance. In

11  enforcing this paragraph, upon a finding by the secretary, his

12  or her designee, or the board that probable cause exists to

13  believe that the licensee or certificateholder is unable to

14  practice the profession because of the reasons stated in this

15  paragraph, the department shall have the authority to compel a

16  licensee or certificateholder to submit to a mental or

17  physical examination by a physician, psychologist, clinical

18  social worker, marriage and family therapist, or mental health

19  counselor designated by the department or board.  If the

20  licensee or certificateholder refuses to comply with the

21  department's order directing the examination, such order may

22  be enforced by filing a petition for enforcement in the

23  circuit court in the circuit in which the licensee or

24  certificateholder resides or does business.  The department

25  shall be entitled to the summary procedure provided in s.

26  51.011.  A licensee or certificateholder affected under this

27  paragraph shall at reasonable intervals be afforded an

28  opportunity to demonstrate that he or she can resume the

29  competent practice for which he or she is licensed or

30  certified with reasonable skill and safety to patients.

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  1         Section 6.  For the purpose of incorporating the

  2  amendment to section 455.637, Florida Statutes, in references

  3  thereto, subsection (1) of section 484.014, Florida Statutes,

  4  is reenacted to read:

  5         484.014  Disciplinary actions.--

  6         (1)  The following acts relating to the practice of

  7  opticianry shall be grounds for both disciplinary action

  8  against an optician as set forth in this section and cease and

  9  desist or other related action by the department as set forth

10  in s. 455.637 against any person operating an optical

11  establishment who engages in, aids, or abets any such

12  violation:

13         (a)  Procuring or attempting to procure a license by

14  misrepresentation, bribery, or fraud or through an error of

15  the department or the board.

16         (b)  Procuring or attempting to procure a license for

17  any other person by making or causing to be made any false

18  representation.

19         (c)  Making or filing a report or record which the

20  licensee knows to be false, intentionally or negligently

21  failing to file a report or record required by federal or

22  state law, willfully impeding or obstructing such filing, or

23  inducing another person to do so. Such reports or records

24  shall include only those which the person is required to make

25  or file as an optician.

26         (d)  Failing to make fee or price information readily

27  available by providing such information upon request or upon

28  the presentation of a prescription.

29         (e)  Advertising goods or services in a manner which is

30  fraudulent, false, deceptive, or misleading in form or

31  content.

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  1         (f)  Fraud or deceit, or negligence, incompetency, or

  2  misconduct, in the authorized practice of opticianry.

  3         (g)  Violation or repeated violation of this part or of

  4  part II of chapter 455 or any rules promulgated pursuant

  5  thereto.

  6         (h)  Practicing with a revoked, suspended, inactive, or

  7  delinquent license.

  8         (i)  Violation of a lawful order of the board or

  9  department previously entered in a disciplinary hearing or

10  failing to comply with a lawfully issued subpoena of the

11  department.

12         (j)  Violation of any provision of s. 484.012.

13         (k)  Conspiring with another licensee or with any

14  person to commit an act, or committing an act, which would

15  coerce, intimidate, or preclude another licensee from lawfully

16  advertising her or his services.

17         (l)  Willfully submitting to any third-party payor a

18  claim for services which were not provided to a patient.

19         (m)  Failing to keep written prescription files.

20         (n)  Willfully failing to report any person who the

21  licensee knows is in violation of this part or of rules of the

22  department or the board.

23         (o)  Exercising influence on a client in such a manner

24  as to exploit the client for financial gain of the licensee or

25  of a third party.

26         (p)  Gross or repeated malpractice.

27         (q)  Permitting any person not licensed as an optician

28  in this state to fit or dispense any lenses, spectacles,

29  eyeglasses, or other optical devices which are part of the

30  practice of opticianry.

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  1         (r)  Being convicted or found guilty of, or entering a

  2  plea of nolo contendere to, regardless of adjudication, in a

  3  court of this state or other jurisdiction, a crime which

  4  relates to the ability to practice opticianry or to the

  5  practice of opticianry.

  6         (s)  Having been disciplined by a regulatory agency in

  7  another state for any offense that would constitute a

  8  violation of Florida law or rules regulating opticianry.

  9         (t)  Being unable to practice opticianry with

10  reasonable skill and safety by reason of illness or use of

11  drugs, narcotics, chemicals, or any other type of material or

12  as a result of any mental or physical condition. An optician

13  affected under this paragraph shall at reasonable intervals be

14  afforded an opportunity to demonstrate that she or he can

15  resume the competent practice of opticianry with reasonable

16  skill and safety to her or his customers.

17         Section 7.  For the purpose of incorporating the

18  amendment to section 455.637, Florida Statutes, in references

19  thereto, subsection (1) of section 484.056, Florida Statutes,

20  is reenacted to read:

21         484.056  Disciplinary proceedings.--

22         (1)  The following acts relating to the practice of

23  dispensing hearing aids shall be grounds for both disciplinary

24  action against a hearing aid specialist as set forth in this

25  section and cease and desist or other related action by the

26  department as set forth in s. 455.637 against any person

27  owning or operating a hearing aid establishment who engages

28  in, aids, or abets any such violation:

29         (a)  Violation of any provision of s. 455.624(1), s.

30  484.0512, or s. 484.053.

31

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  1         (b)  Attempting to procure a license to dispense

  2  hearing aids by bribery, by fraudulent misrepresentations, or

  3  through an error of the department or the board.

  4         (c)  Having a license to dispense hearing aids revoked,

  5  suspended, or otherwise acted against, including the denial of

  6  licensure, by the licensing authority of another state,

  7  territory, or country.

  8         (d)  Being convicted or found guilty of, or entering a

  9  plea of nolo contendere to, regardless of adjudication, a

10  crime in any jurisdiction which directly relates to the

11  practice of dispensing hearing aids or the ability to practice

12  dispensing hearing aids, including violations of any federal

13  laws or regulations regarding hearing aids.

14         (e)  Making or filing a report or record which the

15  licensee knows to be false, intentionally or negligently

16  failing to file a report or record required by state or

17  federal law, willfully impeding or obstructing such filing, or

18  inducing another person to impede or obstruct such filing.

19  Such reports or records shall include only those reports or

20  records which are signed in one's capacity as a licensed

21  hearing aid specialist.

22         (f)  Advertising goods or services in a manner which is

23  fraudulent, false, deceptive, or misleading in form or

24  content.

25         (g)  Proof that the licensee is guilty of fraud or

26  deceit or of negligence, incompetency, or misconduct in the

27  practice of dispensing hearing aids.

28         (h)  Violation or repeated violation of this part or of

29  part II of chapter 455, or any rules promulgated pursuant

30  thereto.

31

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  1         (i)  Violation of a lawful order of the board or

  2  department previously entered in a disciplinary hearing or

  3  failure to comply with a lawfully issued subpoena of the board

  4  or department.

  5         (j)  Practicing with a revoked, suspended, inactive, or

  6  delinquent license.

  7         (k)  Using, or causing or promoting the use of, any

  8  advertising matter, promotional literature, testimonial,

  9  guarantee, warranty, label, brand, insignia, or other

10  representation, however disseminated or published, which is

11  misleading, deceiving, or untruthful.

12         (l)  Showing or demonstrating, or, in the event of

13  sale, delivery of, a product unusable or impractical for the

14  purpose represented or implied by such action.

15         (m)  Misrepresentation of professional services

16  available in the fitting, sale, adjustment, service, or repair

17  of a hearing aid, or use of the terms "doctor," "clinic,"

18  "clinical," "medical audiologist," "clinical audiologist,"

19  "research audiologist," or "audiologic" or any other term or

20  title which might connote the availability of professional

21  services when such use is not accurate.

22         (n)  Representation, advertisement, or implication that

23  a hearing aid or its repair is guaranteed without providing

24  full disclosure of the identity of the guarantor; the nature,

25  extent, and duration of the guarantee; and the existence of

26  conditions or limitations imposed upon the guarantee.

27         (o)  Representing, directly or by implication, that a

28  hearing aid utilizing bone conduction has certain specified

29  features, such as the absence of anything in the ear or

30  leading to the ear, or the like, without disclosing clearly

31  and conspicuously that the instrument operates on the bone

                                  18

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  1  conduction principle and that in many cases of hearing loss

  2  this type of instrument may not be suitable.

  3         (p)  Making any predictions or prognostications as to

  4  the future course of a hearing impairment, either in general

  5  terms or with reference to an individual person.

  6         (q)  Stating or implying that the use of any hearing

  7  aid will improve or preserve hearing or prevent or retard the

  8  progression of a hearing impairment or that it will have any

  9  similar or opposite effect.

10         (r)  Making any statement regarding the cure of the

11  cause of a hearing impairment by the use of a hearing aid.

12         (s)  Representing or implying that a hearing aid is or

13  will be "custom-made," "made to order," or "prescription-made"

14  or in any other sense specially fabricated for an individual

15  person when such is not the case.

16         (t)  Canvassing from house to house or by telephone

17  either in person or by an agent for the purpose of selling a

18  hearing aid, except that contacting persons who have evidenced

19  an interest in hearing aids, or have been referred as in need

20  of hearing aids, shall not be considered canvassing.

21         (u)  Failure to submit to the board on an annual basis,

22  or such other basis as may be provided by rule, certification

23  of testing and calibration of audiometric testing equipment on

24  the form approved by the board.

25         (v)  Failing to provide all information as described in

26  s. 484.051(1).

27         (w)  Exercising influence on a client in such a manner

28  as to exploit the client for financial gain of the licensee or

29  of a third party.

30         Section 8.  Section 455.665, Florida Statutes, is

31  created to read:

                                  19

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  1         455.665  Advertisement by a health care practitioner

  2  for a surgical procedure; required statement.--

  3         (1)  In the text of any written advertisement for a

  4  surgical procedure, the following statement must appear in

  5  capital letters clearly distinguishable from the rest of the

  6  text: "MANY SURGICAL PROCEDURES CARRY RISKS OF UNINTENDED

  7  SERIOUS BODILY INJURY OR DEATH.  CONSULT A LICENSED

  8  PRACTITIONER CONCERNING THESE RISKS BEFORE SUBMITTING TO ANY

  9  SURGERY."

10         (2)  Any advertisement that has an audible component

11  must orally contain the statement required in subsection (1)

12  verbatim.

13         Section 9.  Paragraphs (a) and (g) of subsection (3) of

14  section 921.0022, Florida Statutes, are amended to read:

15         921.0022  Criminal Punishment Code; offense severity

16  ranking chart.--

17         (3)  OFFENSE SEVERITY RANKING CHART

18

19  Florida           Felony

20  Statute           Degree             Description

21

22                              (a)  LEVEL 1

23  24.118(3)(a)       3rd      Counterfeit or altered state

24                              lottery ticket.

25  212.054(2)(b)      3rd      Discretionary sales surtax;

26                              limitations, administration, and

27                              collection.

28  212.15(2)(b)       3rd      Failure to remit sales taxes,

29                              amount greater than $300 but less

30                              than $20,000.

31

                                  20

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  1  319.30(5)          3rd      Sell, exchange, give away

  2                              certificate of title or

  3                              identification number plate.

  4  319.35(1)(a)       3rd      Tamper, adjust, change, etc., an

  5                              odometer.

  6  320.26(1)(a)       3rd      Counterfeit, manufacture, or sell

  7                              registration license plates or

  8                              validation stickers.

  9  322.212(1)         3rd      Possession of forged, stolen,

10                              counterfeit, or unlawfully issued

11                              driver's license; possession of

12                              simulated identification.

13  322.212(4)         3rd      Supply or aid in supplying

14                              unauthorized driver's license or

15                              identification card.

16  322.212(5)(a)      3rd      False application for driver's

17                              license or identification card.

18  370.13(3)(a)       3rd      Molest any stone crab trap, line,

19                              or buoy which is property of

20                              licenseholder.

21  370.135(1)         3rd      Molest any blue crab trap, line,

22                              or buoy which is property of

23                              licenseholder.

24  372.663(1)         3rd      Poach any alligator or

25                              crocodilia.

26  414.39(2)          3rd      Unauthorized use, possession,

27                              forgery, or alteration of food

28                              stamps, Medicaid ID, value

29                              greater than $200.

30

31

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  1  414.39(3)(a)       3rd      Fraudulent misappropriation of

  2                              public assistance funds by

  3                              employee/official, value more

  4                              than $200.

  5  443.071(1)         3rd      False statement or representation

  6                              to obtain or increase

  7                              unemployment compensation

  8                              benefits.

  9  458.327(1)(a)      3rd      Unlicensed practice of medicine.

10  466.026(1)(a)      3rd      Unlicensed practice of dentistry

11                              or dental hygiene.

12  509.151(1)         3rd      Defraud an innkeeper, food or

13                              lodging value greater than $300.

14  517.302(1)         3rd      Violation of the Florida

15                              Securities and Investor

16                              Protection Act.

17  562.27(1)          3rd      Possess still or still apparatus.

18  713.69             3rd      Tenant removes property upon

19                              which lien has accrued, value

20                              more than $50.

21  812.014(3)(c)      3rd      Petit theft (3rd conviction);

22                              theft of any property not

23                              specified in subsection (2).

24  812.081(2)         3rd      Unlawfully makes or causes to be

25                              made a reproduction of a trade

26                              secret.

27  815.04(4)(a)       3rd      Offense against intellectual

28                              property (i.e., computer

29                              programs, data).

30  817.52(2)          3rd      Hiring with intent to defraud,

31                              motor vehicle services.

                                  22

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  1  826.01             3rd      Bigamy.

  2  828.122(3)         3rd      Fighting or baiting animals.

  3  831.04(1)          3rd      Any erasure, alteration, etc., of

  4                              any replacement deed, map, plat,

  5                              or other document listed in s.

  6                              92.28.

  7  831.31(1)(a)       3rd      Sell, deliver, or possess

  8                              counterfeit controlled

  9                              substances, all but s. 893.03(5)

10                              drugs.

11  832.041(1)         3rd      Stopping payment with intent to

12                              defraud $150 or more.

13  832.05

14   (2)(b)&(4)(c)     3rd      Knowing, making, issuing

15                              worthless checks $150 or more or

16                              obtaining property in return for

17                              worthless check $150 or more.

18  838.015(3)         3rd      Bribery.

19  838.016(1)         3rd      Public servant receiving unlawful

20                              compensation.

21  838.15(2)          3rd      Commercial bribe receiving.

22  838.16             3rd      Commercial bribery.

23  843.18             3rd      Fleeing by boat to elude a law

24                              enforcement officer.

25  847.011(1)(a)      3rd      Sell, distribute, etc., obscene,

26                              lewd, etc., material (2nd

27                              conviction).

28  849.01             3rd      Keeping gambling house.

29

30

31

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  1  849.09(1)(a)-(d)   3rd      Lottery; set up, promote, etc.,

  2                              or assist therein, conduct or

  3                              advertise drawing for prizes, or

  4                              dispose of property or money by

  5                              means of lottery.

  6  849.23             3rd      Gambling-related machines;

  7                              "common offender" as to property

  8                              rights.

  9  849.25(2)          3rd      Engaging in bookmaking.

10  860.08             3rd      Interfere with a railroad signal.

11  860.13(1)(a)       3rd      Operate aircraft while under the

12                              influence.

13  893.13(2)(a)2.     3rd      Purchase of cannabis.

14  893.13(6)(a)       3rd      Possession of cannabis (more than

15                              20 grams).

16  893.13(7)(a)10.    3rd      Affix false or forged label to

17                              package of controlled substance.

18  934.03(1)(a)       3rd      Intercepts, or procures any other

19                              person to intercept, any wire or

20                              oral communication.

21                              (g)  LEVEL 7

22  316.193(3)(c)2.    3rd      DUI resulting in serious bodily

23                              injury.

24  327.35(3)(c)2.     3rd      Vessel BUI resulting in serious

25                              bodily injury.

26  402.319(2)         2nd      Misrepresentation and negligence

27                              or intentional act resulting in

28                              great bodily harm, permanent

29                              disfiguration, permanent

30                              disability, or death.

31  409.920(2)         3rd      Medicaid provider fraud.

                                  24

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  1  455.637(2)         3rd      Practicing a health care

  2                              profession without a license.

  3  455.637(2)         2nd      Practicing a health care

  4                              profession without a license

  5                              which results in serious bodily

  6                              injury.

  7  458.327(1)         3rd      Practicing medicine without a

  8                              license.

  9  459.013(1)         3rd      Practicing osteopathic medicine

10                              without a license.

11  460.411(1)         3rd      Practicing chiropractic medicine

12                              without a license.

13  461.012(1)         3rd      Practicing podiatric medicine

14                              without a license.

15  462.17             3rd      Practicing naturopathy without a

16                              license.

17  463.015(1)         3rd      Practicing optometry without a

18                              license.

19  464.016(1)         3rd      Practicing nursing without a

20                              license.

21  465.015(2)         3rd      Practicing pharmacy without a

22                              license.

23  466.026(1)         3rd      Practicing dentistry or dental

24                              hygiene without a license.

25  467.201            3rd      Practicing midwifery without a

26                              license.

27  468.366            3rd      Delivering respiratory care

28                              services without a license.

29  483.828(1)         3rd      Practicing as clinical laboratory

30                              personnel without a license.

31

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  1  483.901(9)         3rd      Practicing medical physics

  2                              without a license.

  3  484.053            3rd      Dispensing hearing aids without a

  4                              license.

  5  494.0018(2)        1st      Conviction of any violation of

  6                              ss. 494.001-494.0077 in which the

  7                              total money and property

  8                              unlawfully obtained exceeded

  9                              $50,000 and there were five or

10                              more victims.

11  782.051(3)         2nd      Attempted felony murder of a

12                              person by a person other than the

13                              perpetrator or the perpetrator of

14                              an attempted felony.

15  782.07(1)          2nd      Killing of a human being by the

16                              act, procurement, or culpable

17                              negligence of another

18                              (manslaughter).

19  782.071            2nd      Killing of human being or viable

20                              fetus by the operation of a motor

21                              vehicle in a reckless manner

22                              (vehicular homicide).

23  782.072            2nd      Killing of a human being by the

24                              operation of a vessel in a

25                              reckless manner (vessel

26                              homicide).

27  784.045(1)(a)1.    2nd      Aggravated battery; intentionally

28                              causing great bodily harm or

29                              disfigurement.

30  784.045(1)(a)2.    2nd      Aggravated battery; using deadly

31                              weapon.

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  1  784.045(1)(b)      2nd      Aggravated battery; perpetrator

  2                              aware victim pregnant.

  3  784.048(4)         3rd      Aggravated stalking; violation of

  4                              injunction or court order.

  5  784.07(2)(d)       1st      Aggravated battery on law

  6                              enforcement officer.

  7  784.08(2)(a)       1st      Aggravated battery on a person 65

  8                              years of age or older.

  9  784.081(1)         1st      Aggravated battery on specified

10                              official or employee.

11  784.082(1)         1st      Aggravated battery by detained

12                              person on visitor or other

13                              detainee.

14  784.083(1)         1st      Aggravated battery on code

15                              inspector.

16  790.07(4)          1st      Specified weapons violation

17                              subsequent to previous conviction

18                              of s. 790.07(1) or (2).

19  790.16(1)          1st      Discharge of a machine gun under

20                              specified circumstances.

21  796.03             2nd      Procuring any person under 16

22                              years for prostitution.

23  800.04(5)(c)1.     2nd      Lewd or lascivious molestation;

24                              victim less than 12 years of age;

25                              offender less than 18 years.

26  800.04(5)(c)2.     2nd      Lewd or lascivious molestation;

27                              victim 12 years of age or older

28                              but less than 16 years; offender

29                              18 years or older.

30  806.01(2)          2nd      Maliciously damage structure by

31                              fire or explosive.

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  1  810.02(3)(a)       2nd      Burglary of occupied dwelling;

  2                              unarmed; no assault or battery.

  3  810.02(3)(b)       2nd      Burglary of unoccupied dwelling;

  4                              unarmed; no assault or battery.

  5  810.02(3)(d)       2nd      Burglary of occupied conveyance;

  6                              unarmed; no assault or battery.

  7  812.014(2)(a)      1st      Property stolen, valued at

  8                              $100,000 or more; property stolen

  9                              while causing other property

10                              damage; 1st degree grand theft.

11  812.019(2)         1st      Stolen property; initiates,

12                              organizes, plans, etc., the theft

13                              of property and traffics in

14                              stolen property.

15  812.131(2)(a)      2nd      Robbery by sudden snatching.

16  812.133(2)(b)      1st      Carjacking; no firearm, deadly

17                              weapon, or other weapon.

18  825.102(3)(b)      2nd      Neglecting an elderly person or

19                              disabled adult causing great

20                              bodily harm, disability, or

21                              disfigurement.

22  825.1025(2)        2nd      Lewd or lascivious battery upon

23                              an elderly person or disabled

24                              adult.

25  825.103(2)(b)      2nd      Exploiting an elderly person or

26                              disabled adult and property is

27                              valued at $20,000 or more, but

28                              less than $100,000.

29  827.03(3)(b)       2nd      Neglect of a child causing great

30                              bodily harm, disability, or

31                              disfigurement.

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  1  827.04(3)          3rd      Impregnation of a child under 16

  2                              years of age by person 21 years

  3                              of age or older.

  4  837.05(2)          3rd      Giving false information about

  5                              alleged capital felony to a law

  6                              enforcement officer.

  7  872.06             2nd      Abuse of a dead human body.

  8  893.13(1)(c)1.     1st      Sell, manufacture, or deliver

  9                              cocaine (or other drug prohibited

10                              under s. 893.03(1)(a), (1)(b),

11                              (1)(d), (2)(a), or (2)(b)) within

12                              1,000 feet of a child care

13                              facility or school.

14  893.13(1)(e)       1st      Sell, manufacture, or deliver

15                              cocaine or other drug prohibited

16                              under s. 893.03(1)(a), (1)(b),

17                              (1)(d), (2)(a), or (2)(b), within

18                              1,000 feet of property used for

19                              religious services or a specified

20                              business site.

21  893.13(4)(a)       1st      Deliver to minor cocaine (or

22                              other s. 893.03(1)(a), (1)(b),

23                              (1)(d), (2)(a), or (2)(b) drugs).

24  893.135(1)(a)1.    1st      Trafficking in cannabis, more

25                              than 50 lbs., less than 2,000

26                              lbs.

27  893.135

28   (1)(b)1.a.        1st      Trafficking in cocaine, more than

29                              28 grams, less than 200 grams.

30

31

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  1  893.135

  2   (1)(c)1.a.        1st      Trafficking in illegal drugs,

  3                              more than 4 grams, less than 14

  4                              grams.

  5  893.135

  6   (1)(d)1.          1st      Trafficking in phencyclidine,

  7                              more than 28 grams, less than 200

  8                              grams.

  9  893.135(1)(e)1.    1st      Trafficking in methaqualone, more

10                              than 200 grams, less than 5

11                              kilograms.

12  893.135(1)(f)1.    1st      Trafficking in amphetamine, more

13                              than 14 grams, less than 28

14                              grams.

15  893.135

16   (1)(g)1.a.        1st      Trafficking in flunitrazepam, 4

17                              grams or more, less than 14

18                              grams.

19         Section 10.  This act shall take effect July 1, 2000.

20

21          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
22                         Senate Bill 1028

23

24  The bill revises funding and enforcement by the Department of
    Health of prohibitions against the unlicensed practice of
25  health care professions, creates criminal offenses for the
    unlicensed practice of a health care profession, and requires
26  a minimum mandatory sentence of imprisonment and a monetary
    fine. The bill revises information to be provided in an
27  advertisement for surgical procedures.

28

29

30

31

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