House Bill hb1867e1

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                                          HB 1867, First Engrossed



  1                      A bill to be entitled

  2         An act relating to health care practitioner

  3         regulation; providing legislative intent and

  4         findings with respect to the Medical Quality

  5         Assurance Trust Fund and function administered

  6         by the Department of Health; requiring the

  7         Auditor General to do a followup Medical

  8         Quality Assurance audit and issue a report to

  9         the Legislature; requiring the Department of

10         Health to reimburse the Agency for Health Care

11         Administration for certain costs; requiring the

12         Office of Program Policy Analysis and

13         Government Accountability to study the

14         feasibility of maintaining the Medical Quality

15         Assurance function within a single department

16         and issue a report to the Legislature;

17         amending s. 456.004, F.S.; providing

18         requirements for rules relating to biennial

19         renewal of licenses; amending s. 456.025, F.S.;

20         revising requirements relating to the setting

21         and use of fees for the regulation of health

22         care professions and practitioners, including

23         continuing education fees; providing for an

24         electronic continuing education tracking

25         system; repealing s. 458.31151, F.S.; relating

26         to development of the examination for

27         foreign-trained physicians and the fees

28         therefor; amending s. 457.107, F.S.; for

29         clarification of acupuncture fees; amending s.

30         483.807, F.S.; relating to clinical laboratory

31         personnel fees; amending s. 456.011, F.S.;


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                                          HB 1867, First Engrossed



  1         requiring board meetings to be conducted

  2         through teleconferencing or other technological

  3         means except under certain circumstances;

  4         amending s. 456.013, F.S.; requiring the

  5         department to charge initial license fees;

  6         amending s. 456.017, F.S.; providing for

  7         administration of national examinations and

  8         termination of state-administered written

  9         examinations; providing for administration of

10         state-administered practical or clinical

11         examinations if paid for in advance by the

12         examination candidates; providing legislative

13         intent with respect to the use of national

14         examinations and the removal of

15         state-administered examinations as a barrier to

16         licensure; providing for electronic access to

17         and posting of examination scores under certain

18         conditions; providing for the sharing of

19         examinations or examination item banks with

20         certain entities; clarifying circumstances

21         under which candidates may bring a challenge;

22         providing for electronic administration of

23         certain laws and rules examinations; amending

24         s. 456.035, F.S.; providing for electronic

25         notification of a licensee's current mailing

26         address and place of practice; amending s.

27         456.073, F.S.; authorizing a letter of guidance

28         in lieu of a finding of probable cause under

29         certain conditions; amending s. 456.081, F.S.;

30         providing for the posting of newsletters on the

31         department's website; amending s. 456.072,


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                                          HB 1867, First Engrossed



  1         F.S.; revising and providing grounds for

  2         discipline of licensees; revising and providing

  3         disciplinary actions; amending s. 456.079,

  4         F.S.; requiring mitigating or aggravating

  5         circumstances to be in the final order to be

  6         considered in the imposition of penalties;

  7         amending ss. 457.109, 458.320, 458.331,

  8         458.345, 458.347, 459.0085, 459.015, 459.022,

  9         460.413, 461.013, 462.14, 463.016, 464.018,

10         465.008, 465.016, 466.028, 466.037, 467.203,

11         468.1295, 468.1755, 468.217, 468.365, 468.518,

12         468.719, 468.811, 478.52, 480.046, 483.825,

13         483.901, 484.014, 484.056, 486.125, 490.009,

14         and 491.009, F.S.; revising and conforming

15         provisions relating to disciplinary grounds and

16         penalties; amending s. 456.065, F.S.; requiring

17         the unlicensed activity fee to be in addition

18         to all other fees collected from each licensee;

19         amending s. 456.074, F.S.; providing for

20         immediate suspension of license for convictions

21         relating to fraudulent practices; amending s.

22         464.005, F.S.; providing for future relocation

23         of the headquarters of the Board of Nursing;

24         providing effective dates.

25  

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

27  

28         Section 1.  It is the intent of the Legislature that

29  the Medical Quality Assurance Trust Fund should be

30  administered in a fiscally responsible manner. It is also the

31  intent of the Legislature that the Department of Health reduce


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                                          HB 1867, First Engrossed



  1  expenses wherever possible to ensure that the cost of

  2  regulation is reasonable and fair and does not serve as a

  3  barrier to licensure in this state. The Legislature adopts

  4  findings 1, 2, 4, 5, and 8 and the recommendations of the

  5  Auditor General's Medical Quality Assurance Operational Audit

  6  Report Number 01-063. In addition, the Legislature adopts

  7  recommendations 1, 2, 4, 5, and 7 of the Florida Senate

  8  Committee on Fiscal Policy Interim Project Report 2001-016.

  9         Section 2.  The Auditor General shall conduct a

10  followup audit to the Medical Quality Assurance Operational

11  Audit Report Number 01-063 to determine if the Department of

12  Health has implemented the recommendations of that report. The

13  Auditor General shall complete the followup audit and issue a

14  report to the President of the Senate and the Speaker of the

15  House of Representatives no later than January 31, 2002.

16         Section 3.  The contract between the Department of

17  Health and the Agency for Health Care Administration pursuant

18  to section 20.43(3), Florida Statutes, is not subject to the

19  provisions of section 216.346, Florida Statutes. The

20  Department of Health shall reimburse the Agency for Health

21  Care Administration for the agency's actual direct costs and

22  the agency's indirect costs incurred as a result of the

23  contract, subject to appropriated funds. The agency shall

24  provide to the department documentation, explanation, and

25  justification of all direct and indirect costs incurred, by

26  budget entity.

27         Section 4.  The Office of Program Policy Analysis and

28  Government Accountability shall study the feasibility of

29  maintaining the entire Medical Quality Assurance function,

30  including enforcement, within a single department. The study

31  shall be completed and a report issued to the President of the


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                                          HB 1867, First Engrossed



  1  Senate and the Speaker of the House of Representatives no

  2  later than November 30, 2001.

  3         Section 5.  Subsection (1) of section 456.004, Florida

  4  Statutes, is amended, and subsection (10) is added to that

  5  section, to read:

  6         456.004  Department; powers and duties.--The

  7  department, for the professions under its jurisdiction, shall:

  8         (1)  Adopt rules establishing a procedure for the

  9  biennial renewal of licenses; however, the department may

10  issue up to a 4-year license to selected licensees

11  notwithstanding any other provisions of law to the contrary.

12  The rules shall specify the expiration dates of licenses and

13  the process for tracking compliance with continuing education

14  requirements, financial responsibility requirements, and any

15  other conditions of renewal set forth in statute or rule. Fees

16  for such renewal shall not exceed the fee caps for individual

17  professions on an annualized basis as authorized by law.

18         (10)  Set an examination fee that includes all costs to

19  develop, purchase, validate, administer, and defend the

20  examination and is an amount certain to cover all

21  administrative costs plus the actual per-applicant cost of the

22  examination.

23         Section 6.  Section 456.025, Florida Statutes, is

24  amended to read:

25         456.025  Fees; receipts; disposition.--

26         (1)  It is the intent of the Legislature that all costs

27  of regulating health care professions and practitioners shall

28  be borne solely by licensees and licensure applicants. It is

29  also the intent of the Legislature that fees should be

30  reasonable and not serve as a barrier to licensure. Moreover,

31  it is the intent of the Legislature that the department


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                                          HB 1867, First Engrossed



  1  operate as efficiently as possible and regularly report to the

  2  Legislature additional methods to streamline operational

  3  costs. Therefore, the boards in consultation with the

  4  department, or the department if there is no board, shall, by

  5  rule, set renewal fees which:

  6         (a)  Shall be based on revenue projections prepared

  7  using generally accepted accounting procedures;

  8         (b)  Shall be adequate to cover all expenses relating

  9  to that board identified in the department's long-range policy

10  plan, as required by s. 456.005;

11         (c)  Shall be reasonable, fair, and not serve as a

12  barrier to licensure;

13         (d)  Shall be based on potential earnings from working

14  under the scope of the license;

15         (e)  Shall be similar to fees imposed on similar

16  licensure types;

17         (f)  Shall not be more than 10% greater than the fee

18  imposed for the previous biennium;

19         (g)  Shall not be more than 10% greater than the actual

20  cost to regulate that profession for the previous biennium;

21  and

22         (h)  Shall be subject to challenge pursuant to chapter

23  120.

24         (2)  The chairpersons of the boards and councils listed

25  in s. 20.43(3)(g), shall meet annually at division

26  headquarters to review the long-range policy plan required by

27  s. 456.005 and current and proposed fee schedules.  The

28  chairpersons shall make recommendations for any necessary

29  statutory changes relating to fees and fee caps.  Such

30  recommendations shall be compiled by the Department of Health

31  and be included in the annual report to the Legislature


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                                          HB 1867, First Engrossed



  1  required by s. 456.026 as well as be included in the

  2  long-range policy plan required by s. 456.005.

  3         (2)(1)  Each board within the jurisdiction of the

  4  department, or the department when there is no board, shall

  5  determine by rule the amount of license fees for the

  6  profession it regulates, based upon long-range estimates

  7  prepared by the department of the revenue required to

  8  implement laws relating to the regulation of professions by

  9  the department and the board.  Each board, or the department

10  if there is no board, shall ensure that license fees are

11  adequate to cover all anticipated costs and to maintain a

12  reasonable cash balance, as determined by rule of the agency,

13  with advice of the applicable board. If sufficient action is

14  not taken by a board within 1 year after notification by the

15  department that license fees are projected to be inadequate,

16  the department shall set license fees on behalf of the

17  applicable board to cover anticipated costs and to maintain

18  the required cash balance. The department shall include

19  recommended fee cap increases in its annual report to the

20  Legislature. Further, it is the legislative intent that no

21  regulated profession operate with a negative cash balance. The

22  department may provide by rule for advancing sufficient funds

23  to any profession operating with a negative cash balance. The

24  advancement may be for a period not to exceed 2 consecutive

25  years, and the regulated profession must pay interest.

26  Interest shall be calculated at the current rate earned on

27  investments of a trust fund used by the department to

28  implement this chapter. Interest earned shall be allocated to

29  the various funds in accordance with the allocation of

30  investment earnings during the period of the advance.

31  


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                                          HB 1867, First Engrossed



  1         (3)(2)  Each board, or the department if there is no

  2  board, may charge a fee not to exceed $25, as determined by

  3  rule, for the issuance of a wall certificate pursuant to s.

  4  456.013(2) requested by a licensee who was licensed prior to

  5  July 1, 1998, or for the issuance of a duplicate wall

  6  certificate requested by any licensee.

  7         (4)(3)  Each board, or the department if there is no

  8  board, may, by rule, assess and collect a one-time fee from

  9  each active status licensee and each inactive status licensee

10  in an amount necessary to eliminate a cash deficit or, if

11  there is not a cash deficit, in an amount sufficient to

12  maintain the financial integrity of the professions as

13  required in this section. Not more than one such assessment

14  may be made in any 4-year period without specific legislative

15  authorization.

16         (5)  If the cash balance of the trust fund at the end

17  of any fiscal year exceeds the total appropriation provided

18  for the regulation of the health care professions in the prior

19  fiscal year, the boards, in consultation with the department,

20  may lower the license renewal fees.

21         (6)(4)  Each board authorized to approve continuing

22  education providers, or the department if there is no board,

23  shall may establish, by rule, a fee not to exceed $250 for

24  anyone seeking approval to provide continuing education

25  courses or programs and shall may establish by rule a biennial

26  renewal fee not to exceed $250 for the renewal of providership

27  of such courses. The fees collected from continuing education

28  providers shall be used for the purposes of reviewing course

29  provider applications, monitoring the integrity of the courses

30  provided, covering legal expenses incurred as a result of not

31  granting or renewing a providership, and developing and


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                                          HB 1867, First Engrossed



  1  maintaining an electronic continuing education tracking

  2  system. The department shall implement an electronic

  3  continuing education tracking system for each new biennial

  4  renewal cycle for which electronic renewals are implemented

  5  after the effective date of this act and shall integrate such

  6  system into the licensure and renewal system. All approved

  7  continuing education providers shall provide information on

  8  course attendance to the department necessary to implement the

  9  electronic tracking system. The department shall, by rule,

10  specify the form and procedures by which the information is to

11  be submitted. This subsection does not apply to continuing

12  education courses or providers approved by the board under

13  chapter 465.

14         (7)(5)  All moneys collected by the department from

15  fees or fines or from costs awarded to the agency by a court

16  shall be paid into a trust fund used by the department to

17  implement this chapter. The Legislature shall appropriate

18  funds from this trust fund sufficient to carry out this

19  chapter and the provisions of law with respect to professions

20  regulated by the Division of Medical Quality Assurance within

21  the department and the boards. The department may contract

22  with public and private entities to receive and deposit

23  revenue pursuant to this section.  The department shall

24  maintain separate accounts in the trust fund used by the

25  department to implement this chapter for every profession

26  within the department.  To the maximum extent possible, the

27  department shall directly charge all expenses to the account

28  of each regulated profession.  For the purpose of this

29  subsection, direct charge expenses include, but are not

30  limited to, costs for investigations, examinations, and legal

31  services.  For expenses that cannot be charged directly, the


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                                          HB 1867, First Engrossed



  1  department shall provide for the proportionate allocation

  2  among the accounts of expenses incurred by the department in

  3  the performance of its duties with respect to each regulated

  4  profession. The regulation by the department of professions,

  5  as defined in this chapter, shall be financed solely from

  6  revenue collected by it from fees and other charges and

  7  deposited in the Medical Quality Assurance Trust Fund, and all

  8  such revenue is hereby appropriated to the department.

  9  However, it is legislative intent that each profession shall

10  operate within its anticipated fees. The department may not

11  expend funds from the account of a profession to pay for the

12  expenses incurred on behalf of another profession, except that

13  the Board of Nursing must pay for any costs incurred in the

14  regulation of certified nursing assistants. The department

15  shall maintain adequate records to support its allocation of

16  agency expenses.  The department shall provide any board with

17  reasonable access to these records upon request.  On or before

18  October 1 of each year, the department shall provide each

19  board an annual report of revenue and direct and allocated

20  expenses related to the operation of that profession. The

21  board shall use these reports and the department's adopted

22  long-range plan to determine the amount of license fees. A

23  condensed version of this information, with the department's

24  recommendations, shall be included in the annual report to the

25  Legislature prepared under s. 456.026.

26         (8)(6)  The department shall provide a condensed

27  management report of budgets, finances, performance

28  statistics, and recommendations to each board at least once a

29  quarter.  The department shall identify and include in such

30  presentations any changes, or projected changes, made to the

31  board's budget since the last presentation.


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                                          HB 1867, First Engrossed



  1         (9)(7)  If a duplicate license is required or requested

  2  by the licensee, the board or, if there is no board, the

  3  department may charge a fee as determined by rule not to

  4  exceed $25 before issuance of the duplicate license.

  5         (10)(8)  The department or the appropriate board shall

  6  charge a fee not to exceed $25 for the certification of a

  7  public record. The fee shall be determined by rule of the

  8  department. The department or the appropriate board shall

  9  assess a fee for duplicating a public record as provided in s.

10  119.07(1)(a) and (b).

11         Section 7.  Subsections (1) of section 457.107, Florida

12  Statutes, is amended to read:

13         457.107  Renewal of licenses; continuing education.--

14         (1)  The department shall renew a license upon receipt

15  of the renewal application and the required fee set by the

16  board by rule, not to exceed $500.

17         Section 8.  Section 458.31151, Florida Statutes, is

18  repealed.

19         Section 9.  Subsection (1) of section 483.807, Florida

20  Statutes, is amended to read:

21         483.807  Fees; establishment; disposition.--

22         (1)  The board, by rule, shall establish fees to be

23  paid for application, examination, reexamination, licensing

24  and renewal, registration, laboratory training program

25  application, reinstatement, and recordmaking and

26  recordkeeping. The board may also establish, by rule, a

27  delinquency fee. The board shall establish fees that are

28  adequate to ensure the continued operation of the board and to

29  fund the proportionate expenses incurred by the department in

30  carrying out its licensure and other related responsibilities

31  under this part. Fees shall be based on departmental estimates


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                                          HB 1867, First Engrossed



  1  of the revenue required to implement this part and the

  2  provisions of law with respect to the regulation of clinical

  3  laboratory personnel.

  4         Section 10.  Subsections (1), (3), and (4) of section

  5  456.011, Florida Statutes, are amended to read:

  6         456.011  Boards; organization; meetings; compensation

  7  and travel expenses.--

  8         (1)  Each board within the department shall comply with

  9  the provisions of this chapter section.

10         (3)  The board shall meet at least once annually and

11  may meet as often as is necessary. Meetings shall be conducted

12  through teleconferencing or other technological means, unless

13  disciplinary hearings involving standard of care, sexual

14  misconduct, fraud, impairment, or felony convictions;

15  licensure denial hearings; or controversial rule hearings are

16  being conducted; or unless otherwise approved in advance of

17  the meeting by the director of the Division of Medical Quality

18  Assurance. The chairperson or a quorum of the board shall have

19  the authority to call other meetings, except as provided above

20  relating to in-person meetings. A quorum shall be necessary

21  for the conduct of official business by the board or any

22  committee thereof. Unless otherwise provided by law, 51

23  percent or more of the appointed members of the board or any

24  committee, when applicable, shall constitute a quorum. The

25  membership of committees of the board, except as otherwise

26  authorized pursuant to this chapter or the applicable practice

27  act, shall be composed of currently appointed members of the

28  board. The vote of a majority of the members of the quorum

29  shall be necessary for any official action by the board or

30  committee. Three consecutive unexcused absences or absences

31  constituting 50 percent or more of the board's meetings within


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                                          HB 1867, First Engrossed



  1  any 12-month period shall cause the board membership of the

  2  member in question to become void, and the position shall be

  3  considered vacant. The board, or the department when there is

  4  no board, shall, by rule, define unexcused absences.

  5         (4)  Unless otherwise provided by law, a board member

  6  or former board member serving on a probable cause panel shall

  7  be compensated $50 for each day in attendance at an official

  8  meeting of the board and for each day of participation in any

  9  other business involving the board.  Each board shall adopt

10  rules defining the phrase "other business involving the

11  board," but the phrase may not routinely be defined to include

12  telephone conference calls that last less than 4 hours. A

13  board member also shall be entitled to reimbursement for

14  expenses pursuant to s. 112.061.  Travel out of state shall

15  require the prior approval of the secretary.

16         Section 11.  Subsection (2) of section 456.013, Florida

17  Statutes, is amended to read:

18         456.013  Department; general licensing provisions.--

19         (2)  Before the issuance of any license, the department

20  shall may charge an initial license fee as determined by rule

21  of the applicable board or, if no such board exists, by rule

22  of the department.  Upon receipt of the appropriate license

23  fee, the department shall issue a license to any person

24  certified by the appropriate board, or its designee, as having

25  met the licensure requirements imposed by law or rule. The

26  license shall consist of a wallet-size identification card and

27  a wall card measuring 6 1/2  inches by 5 inches. In addition

28  to the two-part license, the department, at the time of

29  initial licensure, shall issue a wall certificate suitable for

30  conspicuous display, which shall be no smaller than 8 1/2

31  inches by 14 inches. The licensee shall surrender to the


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                                          HB 1867, First Engrossed



  1  department the wallet-size identification card, the wall card,

  2  and the wall certificate, if one has been issued by the

  3  department, if the licensee's license is revoked.

  4         Section 12.  Section 456.017, Florida Statutes, is

  5  amended to read:

  6         456.017  Department of Health; examinations.--

  7         (1)(a)  The department shall provide, contract, or

  8  approve services for the development, preparation,

  9  administration, scoring, score reporting, and evaluation of

10  all examinations, in consultation with the appropriate board.

11  The department shall certify that examinations developed and

12  approved by the department adequately and reliably measure an

13  applicant's ability to practice the profession regulated by

14  the department.  After an examination developed or approved by

15  the department has been administered, the board, or the

16  department when there is no board, may reject any question

17  which does not reliably measure the general areas of

18  competency specified in the rules of the board. The department

19  may contract for the preparation, administration, scoring,

20  score reporting, and evaluation of examinations, when such

21  services are available and approved by the board.

22         (b)  For each examination developed by the department

23  or contracted vendor, to the extent not otherwise specified by

24  statute, the board, or the department when there is no board,

25  shall by rule specify the general areas of competency to be

26  covered by each examination, the relative weight to be

27  assigned in grading each area tested, and the score necessary

28  to achieve a passing grade. The department shall assess, and

29  fees, where applicable, to cover the actual cost for any

30  purchase, development, validation, and administration, and

31  defense of required examinations.  This subsection does not


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                                          HB 1867, First Engrossed



  1  apply to national examinations approved and administered

  2  pursuant to paragraph (c).  If a practical examination is

  3  deemed to be necessary, the rules shall specify the criteria

  4  by which examiners are to be selected, the grading criteria to

  5  be used by the examiner, the relative weight to be assigned in

  6  grading each criterion, and the score necessary to achieve a

  7  passing grade. When a mandatory standardization exercise for a

  8  practical examination is required by law, the board, or the

  9  department when there is no board, may conduct such exercise.

10  Therefore, board members, or employees of the department when

11  there is no board, may serve as examiners at a practical

12  examination with the consent of the board or department, as

13  appropriate.

14         (c)1.  The board, or the department when there is no

15  board, shall may approve by rule the use of one or more any

16  national examinations examination which the department has

17  certified as meeting requirements of national examinations and

18  generally accepted testing standards pursuant to department

19  rules.  Providers of examinations seeking certification by the

20  department shall pay the actual costs incurred by the

21  department in making a determination regarding the

22  certification.  The name and number of a candidate may be

23  provided to a national contractor for the limited purpose of

24  preparing the grade tape and information to be returned to the

25  board or department; or, to the extent otherwise specified by

26  rule, the candidate may apply directly to the vendor of the

27  national examination and supply test score information to the

28  department.  The department may delegate to the board the duty

29  to provide and administer the examination.  Any national

30  examination approved by a board, or the department when there

31  


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                                          HB 1867, First Engrossed



  1  is no board, prior to October 1, 1997, is deemed certified

  2  under this paragraph.

  3         2.  The board, or the department when there is no

  4  board, shall approve and begin administering a national

  5  examination no later than December 31, 2001. Neither the board

  6  nor the department may administer a state-developed written

  7  examination after December 31, 2001, notwithstanding any other

  8  provision of law. The examination may be administered

  9  electronically if adequate security measures are used, as

10  determined by rule of the department.

11         3.  The board, or the department when there is no

12  board, may administer a state-developed practical or clinical

13  examination, as required by the applicable practice act, if

14  all costs of development, purchase, validation,

15  administration, review, and defense are paid by the

16  examination candidate prior to the administration of the

17  examination. If a national practical or clinical examination

18  is available and certified by the department pursuant to this

19  section, the board, or the department when there is no board,

20  may administer the national examination.

21         4.  It is the intent of the Legislature to reduce the

22  costs associated with state examinations and to encourage the

23  use of national examinations whenever possible.

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

25  board, shall adopt rules regarding the security and monitoring

26  of examinations.  The department shall implement those rules

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

28  security of examinations, the department may employ the

29  procedures set forth in s. 456.065 to seek fines and

30  injunctive relief against an examinee who violates the

31  provisions of s. 456.018 or the rules adopted pursuant to this


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                                          HB 1867, First Engrossed



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

  2  purposes of investigation, confiscate any written,

  3  photographic, or recording material or device in the

  4  possession of the examinee at the examination site which the

  5  department deems necessary to enforce such provisions or

  6  rules. The scores of candidates who have taken state-developed

  7  examinations shall be provided to the candidates

  8  electronically using a candidate identification number, and

  9  the department shall post the aggregate scores on the

10  department's website without identifying the names of the

11  candidates.

12         (e)  If the professional board with jurisdiction over

13  an examination concurs, the department may, for a fee, share

14  with any other state's licensing authority or a national

15  testing entity an examination or examination item bank

16  developed by or for the department unless prohibited by a

17  contract entered into by the department for development or

18  purchase of the examination.  The department, with the

19  concurrence of the appropriate board, shall establish

20  guidelines that ensure security of a shared exam and shall

21  require that any other state's licensing authority comply with

22  those guidelines.  Those guidelines shall be approved by the

23  appropriate professional board.  All fees paid by the user

24  shall be applied to the department's examination and

25  development program for professions regulated by this chapter.

26         (f)  The department may adopt rules necessary to

27  administer this subsection.

28         (2)  For each examination developed by the department

29  or a contracted vendor, the board, or the department when

30  there is no board, shall adopt rules providing for

31  reexamination of any applicants who failed an examination


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                                          HB 1867, First Engrossed



  1  developed by the department or a contracted vendor. If both a

  2  written and a practical examination are given, an applicant

  3  shall be required to retake only the portion of the

  4  examination on which the applicant failed to achieve a passing

  5  grade, if the applicant successfully passes that portion

  6  within a reasonable time, as determined by rule of the board,

  7  or the department when there is no board, of passing the other

  8  portion. Except for national examinations approved and

  9  administered pursuant to this section, the department shall

10  provide procedures for applicants who fail an examination

11  developed by the department or a contracted vendor to review

12  their examination questions, answers, papers, grades, and

13  grading key for the questions the candidate answered

14  incorrectly or, if not feasible, the parts of the examination

15  failed. Applicants shall bear the actual cost for the

16  department to provide examination review pursuant to this

17  subsection. An applicant may waive in writing the

18  confidentiality of the applicant's examination grades.

19  Notwithstanding any other provisions, only candidates who fail

20  an examination by less than ten percent shall be entitled to

21  challenge the validity of the examination at hearing.

22         (3)  For each examination developed or administered by

23  the department or a contracted vendor, an accurate record of

24  each applicant's examination questions, answers, papers,

25  grades, and grading key shall be kept for a period of not less

26  than 2 years immediately following the examination, and such

27  record shall thereafter be maintained or destroyed as provided

28  in chapters 119 and 257.  This subsection does not apply to

29  national examinations approved and administered pursuant to

30  this section.

31  


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                                          HB 1867, First Engrossed



  1         (4)  Meetings of any member of the department or of any

  2  board within the department held for the exclusive purpose of

  3  creating or reviewing licensure examination questions or

  4  proposed examination questions are exempt from the provisions

  5  of s. 286.011 and s. 24(b), Art. I of the State Constitution.

  6  Any public records, such as tape recordings, minutes, or

  7  notes, generated during or as a result of such meetings are

  8  confidential and exempt from the provisions of s. 119.07(1)

  9  and s. 24(a), Art. I of the State Constitution. However, these

10  exemptions shall not affect the right of any person to review

11  an examination as provided in subsection (2).

12         (5)  For examinations developed by the department or a

13  contracted vendor, each board, or the department when there is

14  no board, may provide licensure examinations in an applicant's

15  native language.  Notwithstanding any other provision of law,

16  applicants for examination or reexamination pursuant to this

17  subsection shall bear the full cost for the department's

18  development, preparation, validation, administration, grading,

19  and evaluation of any examination in a language other than

20  English prior to the examination being administered.  Requests

21  for translated examinations must be on file in the board

22  office at least 6 months prior to the scheduled examination.

23  When determining whether it is in the public interest to allow

24  the examination to be translated into a language other than

25  English, the board shall consider the percentage of the

26  population who speak the applicant's native language.

27  Applicants must apply for translation to the applicable board

28  at least 6 months prior to the scheduled examination.

29         (6)  In addition to meeting any other requirements for

30  licensure by examination or by endorsement, and

31  notwithstanding the provisions in paragraph (1)(c), an


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                                          HB 1867, First Engrossed



  1  applicant may be required by a board, or the department when

  2  there is no board, to certify competency in state laws and

  3  rules relating to the applicable practice act. Beginning

  4  October 1, 2001, all laws and rules examinations shall be

  5  administered electronically unless the laws and rules

  6  examination is administered concurrently with another written

  7  examination for that profession or unless the electronic

  8  administration would be substantially more expensive.

  9         Section 13.  Subsection (1) of section 456.035, Florida

10  Statutes, is amended to read:

11         456.035  Address of record.--

12         (1)  Each licensee of the department is solely

13  responsible for notifying the department in writing of the

14  licensee's current mailing address and place of practice, as

15  defined by rule of the board or the department if there is no

16  board. Electronic notification shall be allowed by the

17  department; however, it shall be the responsibility of the

18  licensee to ensure that the electronic notification was

19  received by the department. A licensee's failure to notify the

20  department of a change of address constitutes a violation of

21  this section, and the licensee may be disciplined by the board

22  or the department if there is no board.

23         Section 14.  Subsections (2), (4), and (10) of section

24  456.073, Florida Statutes, are amended to read:

25         456.073  Disciplinary proceedings.--Disciplinary

26  proceedings for each board shall be within the jurisdiction of

27  the department.

28         (2)  The department shall allocate sufficient and

29  adequately trained staff to expeditiously and thoroughly

30  determine legal sufficiency and investigate all legally

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


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                                          HB 1867, First Engrossed



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

  2  that the department complete the report of its initial

  3  investigative findings and recommendations concerning the

  4  existence of probable cause within 6 months after its receipt

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

  6  disciplinary cases under its jurisdiction, to comply with the

  7  time limits of this section while investigating a complaint

  8  against a licensee constitutes harmless error in any

  9  subsequent disciplinary action unless a court finds that

10  either the fairness of the proceeding or the correctness of

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

12  procedure or a failure to follow prescribed procedure.  When

13  its investigation is complete and legally sufficient, the

14  department shall prepare and submit to the probable cause

15  panel of the appropriate regulatory board the investigative

16  report of the department. The report shall contain the

17  investigative findings and the recommendations of the

18  department concerning the existence of probable cause. The

19  department shall not recommend a letter of guidance in lieu of

20  finding probable cause if the subject has already been issued

21  a letter of guidance for a related offense. At any time after

22  legal sufficiency is found, the department may dismiss any

23  case, or any part thereof, if the department determines that

24  there is insufficient evidence to support the prosecution of

25  allegations contained therein. The department shall provide a

26  detailed report to the appropriate probable cause panel prior

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

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

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

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

31  119.07(1). The probable cause panel shall have access, upon


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                                          HB 1867, First Engrossed



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

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

  3  the probable cause panel may retain independent legal counsel,

  4  employ investigators, and continue the investigation and

  5  prosecution of the case as it deems necessary.

  6         (4)  The determination as to whether probable cause

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

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

  9  regulatory board shall provide by rule that the determination

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

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

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

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

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

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

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

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

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

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

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

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

22  cause panel must include a former or present professional

23  board member. However, any former professional board member

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

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

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

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

28  investigation waives his or her privilege of confidentiality.

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

30  upon such request the department shall provide such additional

31  investigative information as is necessary to the determination


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                                          HB 1867, First Engrossed



  1  of probable cause. A request for additional investigative

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

  3  receipt by the probable cause panel of the investigative

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

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

  6  determination of probable cause within 30 days after receipt

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

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

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

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

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

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

13  panel does not make a determination regarding the existence of

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

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

16  determination regarding the existence of probable cause within

17  10 days after the expiration of the time limit.  If the

18  probable cause panel finds that probable cause exists, it

19  shall direct the department to file a formal complaint against

20  the licensee. The department shall follow the directions of

21  the probable cause panel regarding the filing of a formal

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

23  formal complaint against the subject of the investigation and

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

25  department may decide not to prosecute the complaint if it

26  finds that probable cause has been improvidently found by the

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

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

29  prosecute the complaint pursuant to chapter 120. The

30  department shall also refer to the board any investigation or

31  disciplinary proceeding not before the Division of


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                                          HB 1867, First Engrossed



  1  Administrative Hearings pursuant to chapter 120 or otherwise

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

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

  4  jurisdiction, must establish a uniform reporting system to

  5  quarterly refer to each board the status of any investigation

  6  or disciplinary proceeding that is not before the Division of

  7  Administrative Hearings or otherwise completed by the

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

  9  Annually, the department, in consultation with the applicable

10  probable cause panel, if there is no board, or each board must

11  establish a plan to expedite reduce or otherwise close any

12  investigation or disciplinary proceeding that is not before

13  the Division of Administrative Hearings or otherwise completed

14  by the department within 1 year after the filing of the

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

16  independent legal counsel, employ investigators, and continue

17  the investigation as it deems necessary; all costs thereof

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

19  implement this chapter.  All proceedings of the probable cause

20  panel are exempt from s. 120.525.

21         (10)  The complaint and all information obtained

22  pursuant to the investigation by the department are

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

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

25  panel or by the department, or until the regulated

26  professional or subject of the investigation waives his or her

27  privilege of confidentiality, whichever occurs first. Upon

28  completion of the investigation and a recommendation by the

29  department to find probable cause, and pursuant to a written

30  request by the subject or the subject's attorney, the

31  department shall provide the subject an opportunity to inspect


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                                          HB 1867, First Engrossed



  1  the investigative file or, at the subject's expense, forward

  2  to the subject a copy of the investigative file.

  3  Notwithstanding s. 456.057, the subject may inspect or receive

  4  a copy of any expert witness report or patient record

  5  connected with the investigation if the subject agrees in

  6  writing to maintain the confidentiality of any information

  7  received under this subsection until 10 days after probable

  8  cause is found and to maintain the confidentiality of patient

  9  records pursuant to s. 456.057. The subject may file a written

10  response to the information contained in the investigative

11  file. Such response must be filed within 20 days of mailing by

12  the department, unless an extension of time has been granted

13  by the department. This subsection does not prohibit the

14  department from providing such information to any law

15  enforcement agency or to any other regulatory agency.

16         Section 15.  Section 456.081, Florida Statutes, is

17  amended to read:

18         456.081  Publication of information.--The department

19  and the boards shall have the authority to advise licensees

20  periodically, through the publication of a newsletter on the

21  department's website, about information that the department or

22  the board determines is of interest to the industry. Unless

23  otherwise prohibited by law, the department and the boards

24  shall publish a summary of final orders resulting in

25  disciplinary action fines, suspensions, or revocations, and

26  any other information the department or the board determines

27  is of interest to the public.

28         Section 16.  Subsections (1), (2), and (4) of section

29  456.072, Florida Statutes, are amended to read:

30         456.072  Grounds for discipline; penalties;

31  enforcement.--


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                                          HB 1867, First Engrossed



  1         (1)  The following acts shall constitute grounds for

  2  which the disciplinary actions specified in subsection (2) may

  3  be taken:

  4         (a)  Making misleading, deceptive, or fraudulent

  5  representations in or related to the practice of the

  6  licensee's profession.

  7         (b)  Intentionally violating any rule adopted by the

  8  board or the department, as appropriate.

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

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

11  crime in any jurisdiction which relates to the practice of, or

12  the ability to practice, a licensee's profession.

13         (d)  Using a Class III or a Class IV laser device or

14  product, as defined by federal regulations, without having

15  complied with the rules adopted pursuant to s. 501.122(2)

16  governing the registration of such devices.

17         (e)  Failing to comply with the educational course

18  requirements for human immunodeficiency virus and acquired

19  immune deficiency syndrome.

20         (f)  Having a license or the authority to practice any

21  regulated profession revoked, suspended, or otherwise acted

22  against, including the denial of licensure, by the licensing

23  authority of any jurisdiction, including its agencies or

24  subdivisions, for a violation that would constitute a

25  violation under Florida law. The licensing authority's

26  acceptance of a relinquishment of licensure, stipulation,

27  consent order, or other settlement, offered in response to or

28  in anticipation of the filing of charges against the license,

29  shall be construed as action against the license.

30  

31  


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                                          HB 1867, First Engrossed



  1         (g)  Having been found liable in a civil proceeding for

  2  knowingly filing a false report or complaint with the

  3  department against another licensee.

  4         (h)  Attempting to obtain, obtaining, or renewing a

  5  license to practice a profession by bribery, by fraudulent

  6  misrepresentation, or through an error of the department or

  7  the board.

  8         (i)  Except as provided in s. 465.016, failing to

  9  report to the department any person who the licensee knows is

10  in violation of this chapter, the chapter regulating the

11  alleged violator, or the rules of the department or the board.

12         (j)  Aiding, assisting, procuring, employing, or

13  advising any unlicensed person or entity to practice a

14  profession contrary to this chapter, the chapter regulating

15  the profession, or the rules of the department or the board.

16         (k)  Failing to perform any statutory or legal

17  obligation placed upon a licensee.

18         (l)  Making or filing a report which the licensee knows

19  to be false, intentionally or negligently failing to file a

20  report or record required by state or federal law, or

21  willfully impeding or obstructing another person to do so.

22  Such reports or records shall include only those that are

23  signed in the capacity of a licensee.

24         (m)  Making deceptive, untrue, or fraudulent

25  representations in or related to the practice of a profession

26  or employing a trick or scheme in or related to the practice

27  of a profession.

28         (n)  Exercising influence on the patient or client for

29  the purpose of financial gain of the licensee or a third

30  party.

31  


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                                          HB 1867, First Engrossed



  1         (o)  Practicing or offering to practice beyond the

  2  scope permitted by law or accepting and performing

  3  professional responsibilities the licensee knows, or has

  4  reason to know, the licensee is not competent to perform.

  5         (p)  Delegating or contracting for the performance of

  6  professional responsibilities by a person when the licensee

  7  delegating or contracting for performance of such

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

  9  not qualified by training, experience, and authorization when

10  required to perform them.

11         (q)  Violating any provision of this chapter, the

12  applicable professional practice act, a rule of the department

13  or the board, or a lawful order of the department or the

14  board, or failing to comply with a lawfully issued subpoena of

15  the department.

16         (r)  Improperly interfering with an investigation or

17  inspection authorized by statute, or with any disciplinary

18  proceeding.

19         (s)  Failing to comply with the educational course

20  requirements for domestic violence.

21         (t)  Failing to comply with the requirements of ss.

22  381.026 and 381.0261 to provide patients with information

23  about their patient rights and how to file a patient

24  complaint.

25         (u)  Engaging or attempting to engage in sexual

26  misconduct as defined and prohibited in s. 456.063(1).

27         (v)  Failing to comply with the requirements for

28  profiling and credentialing, including, but not limited to,

29  failing to provide initial information, failing to timely

30  provide updated information, or making misleading, untrue,

31  


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                                          HB 1867, First Engrossed



  1  deceptive, or fraudulent representations on a profile,

  2  credentialing, or initial or renewal licensure application.

  3         (w)  Failing to report to the board, or the department

  4  if there is no board, in writing within 30 days after the

  5  licensee has been convicted or found guilty of, or entered a

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

  7  crime in any jurisdiction. Convictions, findings,

  8  adjudications, and pleas entered into prior to the enactment

  9  of this paragraph must be reported in writing to the board, or

10  department if there is no board, on or before October 1, 1999.

11         (x)  Using information about people involved in motor

12  vehicle accidents which has been derived from accident reports

13  made by law enforcement officers or persons involved in

14  accidents pursuant to s. 316.066, or using information

15  published in a newspaper or other news publication or through

16  a radio or television broadcast that has used information

17  gained from such reports, for the purposes of commercial or

18  any other solicitation whatsoever of the people involved in

19  such accidents.

20         (y)  Being unable to practice with reasonable skill and

21  safety to patients by reason of illness or use of alcohol,

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

23  as a result of any mental or physical condition. In enforcing

24  this paragraph, the department shall have, upon a finding of

25  the secretary or the secretary's designee that probable cause

26  exists to believe that the licensee is unable to practice

27  because of the reasons stated in this paragraph, the authority

28  to issue an order to compel a licensee to submit to a mental

29  or physical examination by physicians designated by the

30  department. If the licensee refuses to comply with such order,

31  the department's order directing such examination may be


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                                          HB 1867, First Engrossed



  1  enforced by filing a petition for enforcement in the circuit

  2  court where the licensee resides or does business. The

  3  department shall be entitled to the summary procedure provided

  4  in s. 51.011. A licensee or certificateholder affected under

  5  this paragraph shall at reasonable intervals be afforded an

  6  opportunity to demonstrate that he or she can resume the

  7  competent practice of his or her profession with reasonable

  8  skill and safety to patients.

  9         (z)  Testing positive for any drug, as defined in s.

10  112.0455, on any confirmed preemployment or employer-ordered

11  drug screening when the practitioner does not have a lawful

12  prescription and legitimate medical reason for using such

13  drug.

14         (aa)  Violating any provision of this chapter, the

15  applicable practice act, or any rules adopted pursuant

16  thereto.

17         (2)  When the board, or the department when there is no

18  board, finds any person guilty of the grounds set forth in

19  subsection (1) or of any grounds set forth in the applicable

20  practice act, including conduct constituting a substantial

21  violation of subsection (1) or a violation of the applicable

22  practice act which occurred prior to obtaining a license, it

23  may enter an order imposing one or more of the following

24  penalties:

25         (a)  Refusal to certify, or to certify with

26  restrictions, an application for a license.

27         (b)  Suspension or permanent revocation of a license.

28         (c)  Restriction of practice or license, including, but

29  not limited to, restricting the licensee from practicing in

30  certain settings, restricting the licensee to work only under

31  designated conditions or in certain settings, restricting the


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                                          HB 1867, First Engrossed



  1  licensee from performing or providing designated clinical and

  2  administrative services, restricting the licensee from

  3  practicing more than a designated number of hours, or any

  4  other restriction found to be necessary for the protection of

  5  the public health, safety, and welfare.

  6         (d)  Imposition of an administrative fine not to exceed

  7  $10,000 for each count or separate offense. If the violation

  8  is for fraud or making a false or fraudulent representation,

  9  the board, or department if there is no board, shall impose a

10  fine of $10,000 per count or offense.

11         (e)  Issuance of a reprimand or letter of concern.

12         (f)  Placement of the licensee on probation for a

13  period of time and subject to such conditions as the board, or

14  the department when there is no board, may specify. Those

15  conditions may include, but are not limited to, requiring the

16  licensee to undergo treatment, attend continuing education

17  courses, submit to be reexamined, work under the supervision

18  of another licensee, or satisfy any terms which are reasonably

19  tailored to the violations found.

20         (g)  Corrective action.

21         (h)  Imposition of an administrative fine in accordance

22  with s. 381.0261 for violations regarding patient rights.

23         (i)  Refund of fees billed and collected from the

24  patient or a third party on behalf of the patient.

25         (j)  Requirement that the practitioner undergo remedial

26  education.

27  

28  In determining what action is appropriate, the board, or

29  department when there is no board, must first consider what

30  sanctions are necessary to protect the public or to compensate

31  the patient. Only after those sanctions have been imposed may


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                                          HB 1867, First Engrossed



  1  the disciplining authority consider and include in the order

  2  requirements designed to rehabilitate the practitioner. All

  3  costs associated with compliance with orders issued under this

  4  subsection are the obligation of the practitioner.

  5         (4)  In addition to any other discipline imposed

  6  pursuant to this section or discipline imposed for a violation

  7  of any practice act, the board, or the department when there

  8  is no board, shall may assess costs related to the

  9  investigation and prosecution of the case. In any case where

10  the board or the department imposes a fine or assessment and

11  the fine or assessment is not paid within a reasonable time,

12  such reasonable time to be prescribed in the rules of the

13  board, or the department when there is no board, or in the

14  order assessing such fines or costs, the department or the

15  Department of Legal Affairs may contract for the collection

16  of, or bring a civil action to recover, the fine or

17  assessment.

18         Section 17.  Subsection (3) of section 456.079, Florida

19  Statutes, is amended to read:

20         456.079  Disciplinary guidelines.--

21         (3)  A specific finding in the final order of

22  mitigating or aggravating circumstances shall allow the board

23  to impose a penalty other than that provided for in such

24  guidelines.  If applicable, the board, or the department if

25  there is no board, shall adopt by rule disciplinary guidelines

26  to designate possible mitigating and aggravating circumstances

27  and the variation and range of penalties permitted for such

28  circumstances.

29         Section 18.  Subsections (1) and (2) of section

30  457.109, Florida Statutes, are amended to read:

31  


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                                          HB 1867, First Engrossed



  1         457.109  Disciplinary actions; grounds; action by the

  2  board.--

  3         (1)  The following acts shall constitute grounds for

  4  denial of a license or disciplinary action, as specified in s.

  5  456.072(2) which the disciplinary actions specified in

  6  subsection (2) may be taken:

  7         (a)  Attempting to obtain, obtaining, or renewing a

  8  license to practice acupuncture by bribery, by fraudulent

  9  misrepresentations, or through an error of the department.

10         (b)  Having a license to practice acupuncture revoked,

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

12  licensure, by the licensing authority of another state,

13  territory, or country.

14         (c)  Being convicted or found guilty, regardless of

15  adjudication, in any jurisdiction of a crime which directly

16  relates to the practice of acupuncture or to the ability to

17  practice acupuncture.  Any plea of nolo contendere shall be

18  considered a conviction for purposes of this chapter.

19         (d)  False, deceptive, or misleading advertising or

20  advertising which claims that acupuncture is useful in curing

21  any disease.

22         (e)  Advertising, practicing, or attempting to practice

23  under a name other than one's own.

24         (f)  Failing to report to the department any person who

25  the licensee knows is in violation of this chapter or of the

26  rules of the department.

27         (g)  Aiding, assisting, procuring, employing, or

28  advising any unlicensed person to practice acupuncture

29  contrary to this chapter or to a rule of the department.

30         (h)  Failing to perform any statutory or legal

31  obligation placed upon a licensed acupuncturist.


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                                          HB 1867, First Engrossed



  1         (i)  Making or filing a report which the licensee knows

  2  to be false, intentionally or negligently failing to file a

  3  report or record required by state or federal law, willfully

  4  impeding or obstructing such filing or inducing another person

  5  to do so. Such reports or records shall include only those

  6  which are signed in the capacity as a licensed acupuncturist.

  7         (j)  Exercising influence within a

  8  patient-acupuncturist relationship for purposes of engaging a

  9  patient in sexual activity. A patient shall be presumed to be

10  incapable of giving free, full, and informed consent to sexual

11  activity with his or her acupuncturist.

12         (k)  Making deceptive, untrue, or fraudulent

13  representations in the practice of acupuncture or employing a

14  trick or scheme in the practice of acupuncture when such

15  scheme or trick fails to conform to the generally prevailing

16  standards of treatment in the community.

17         (l)  Soliciting patients, either personally or through

18  an agent, through the use of fraud, intimidation, undue

19  influence, or a form of overreaching or vexatious conduct. A

20  solicitation is any communication which directly or implicitly

21  requests an immediate oral response from the recipient.

22         (m)  Failing to keep written medical records justifying

23  the course of treatment of the patient.

24         (n)  Exercising influence on the patient to exploit the

25  patient for the financial gain of the licensee or of a third

26  party.

27         (o)  Being unable to practice acupuncture with

28  reasonable skill and safety to patients by reason of illness

29  or use of alcohol, drugs, narcotics, chemicals, or any other

30  type of material or as a result of any mental or physical

31  condition. In enforcing this paragraph, upon a finding of the


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                                          HB 1867, First Engrossed



  1  secretary or the secretary's designee that probable cause

  2  exists to believe that the licensee is unable to serve as an

  3  acupuncturist due to the reasons stated in this paragraph, the

  4  department shall have the authority to issue an order to

  5  compel the licensee to submit to a mental or physical

  6  examination by a physician designated by the department. If

  7  the licensee refuses to comply with such order, the

  8  department's order directing such examination may be enforced

  9  by filing a petition for enforcement in the circuit court

10  where the licensee resides or serves as an acupuncturist. The

11  licensee against whom the petition is filed shall not be named

12  or identified by initials in any public court record or

13  document, and the proceedings shall be closed to the public.

14  The department shall be entitled to the summary procedure

15  provided in s. 51.011. An acupuncturist affected under this

16  paragraph shall at reasonable intervals be afforded an

17  opportunity to demonstrate that he or she can resume the

18  competent practice of acupuncture with reasonable skill and

19  safety to patients. In any proceeding under this paragraph,

20  neither the record of proceedings nor the orders entered by

21  the department shall be used against an acupuncturist in any

22  other proceeding.

23         (p)  Gross or repeated malpractice or the failure to

24  practice acupuncture with that level of care, skill, and

25  treatment which is recognized by a reasonably prudent similar

26  acupuncturist as being acceptable under similar conditions and

27  circumstances.

28         (q)  Practicing or offering to practice beyond the

29  scope permitted by law or accepting and performing

30  professional responsibilities which the licensee knows or has

31  reason to know that he or she is not competent to perform.


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                                          HB 1867, First Engrossed



  1         (r)  Delegating professional responsibilities to a

  2  person when the licensee delegating such responsibilities

  3  knows or has reason to know that such person is not qualified

  4  by training, experience, or licensure to perform them.

  5         (s)  Violating any provision of this chapter, a rule of

  6  the department, or a lawful order of the board department

  7  previously entered in a disciplinary hearing or failing to

  8  comply with a lawfully issued subpoena of the department.

  9         (t)  Conspiring with another to commit an act, or

10  committing an act, which would tend to coerce, intimidate, or

11  preclude another licensee from lawfully advertising his or her

12  services.

13         (u)  Fraud or deceit or gross negligence, incompetence,

14  or misconduct in the operation of a course of study.

15         (v)  Failing to comply with state, county, or municipal

16  regulations or reporting requirements relating to public

17  health and the control of contagious and infectious diseases.

18         (w)  Failing to comply with any rule of the board

19  relating to health and safety, including, but not limited to,

20  the sterilization of needles and equipment and the disposal of

21  potentially infectious materials.

22         (x)  Violating any provision of this chapter or chapter

23  456, or any rules adopted pursuant thereto.

24         (2)  The board may enter an order denying licensure or

25  imposing any of the penalties in s. 456.072(2) against any

26  applicant for licensure or licensee who is found guilty of

27  violating any provision of subsection (1) of this section or

28  who is found guilty of violating any provision of s.

29  456.072(1). When the board finds any person guilty of any of

30  the acts set forth in subsection (1), it may enter an order

31  imposing one or more of the following penalties:


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                                          HB 1867, First Engrossed



  1         (a)  Refusal to certify to the department an

  2  application for licensure.

  3         (b)  Revocation or suspension of a license.

  4         (c)  Restriction of practice.

  5         (d)  Imposition of an administrative fine not to exceed

  6  $1,000 for each count or separate offense.

  7         (e)  Issuance of a reprimand.

  8         (f)  Placement of the acupuncturist on probation for a

  9  period of time and subject to such conditions as the board may

10  specify.

11         Section 19.  Subsection (6) of section 458.320, Florida

12  Statutes, is amended to read:

13         458.320  Financial responsibility.--

14         (6)  Any deceptive, untrue, or fraudulent

15  representation by the licensee with respect to any provision

16  of this section shall result in permanent disqualification

17  from any exemption to mandated financial responsibility as

18  provided in this section and shall constitute grounds for

19  disciplinary action under as specified in s. 458.331.

20         Section 20.  Subsections (1) and (2) of section

21  458.331, Florida Statutes, are amended to read:

22         458.331  Grounds for disciplinary action; action by the

23  board and department.--

24         (1)  The following acts shall constitute grounds for

25  denial of a license or disciplinary action, as specified in s.

26  456.072(2) which the disciplinary actions specified in

27  subsection (2) may be taken:

28         (a)  Attempting to obtain, obtaining, or renewing a

29  license to practice medicine by bribery, by fraudulent

30  misrepresentations, or through an error of the department or

31  the board.


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                                          HB 1867, First Engrossed



  1         (b)  Having a license or the authority to practice

  2  medicine revoked, suspended, or otherwise acted against,

  3  including the denial of licensure, by the licensing authority

  4  of any jurisdiction, including its agencies or subdivisions.

  5  The licensing authority's acceptance of a physician's

  6  relinquishment of a license, stipulation, consent order, or

  7  other settlement, offered in response to or in anticipation of

  8  the filing of administrative charges against the physician's

  9  license, shall be construed as action against the physician's

10  license.

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

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

13  crime in any jurisdiction which directly relates to the

14  practice of medicine or to the ability to practice medicine.

15         (d)  False, deceptive, or misleading advertising.

16         (e)  Failing to report to the department any person who

17  the licensee knows is in violation of this chapter or of the

18  rules of the department or the board. A treatment provider

19  approved pursuant to s. 456.076 shall provide the department

20  or consultant with information in accordance with the

21  requirements of s. 456.076(3), (4), (5), and (6).

22         (f)  Aiding, assisting, procuring, or advising any

23  unlicensed person to practice medicine contrary to this

24  chapter or to a rule of the department or the board.

25         (g)  Failing to perform any statutory or legal

26  obligation placed upon a licensed physician.

27         (h)  Making or filing a report which the licensee knows

28  to be false, intentionally or negligently failing to file a

29  report or record required by state or federal law, willfully

30  impeding or obstructing such filing or inducing another person

31  


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                                          HB 1867, First Engrossed



  1  to do so.  Such reports or records shall include only those

  2  which are signed in the capacity as a licensed physician.

  3         (i)  Paying or receiving any commission, bonus,

  4  kickback, or rebate, or engaging in any split-fee arrangement

  5  in any form whatsoever with a physician, organization, agency,

  6  or person, either directly or indirectly, for patients

  7  referred to providers of health care goods and services,

  8  including, but not limited to, hospitals, nursing homes,

  9  clinical laboratories, ambulatory surgical centers, or

10  pharmacies.  The provisions of this paragraph shall not be

11  construed to prevent a physician from receiving a fee for

12  professional consultation services.

13         (j)  Exercising influence within a patient-physician

14  relationship for purposes of engaging a patient in sexual

15  activity. A patient shall be presumed to be incapable of

16  giving free, full, and informed consent to sexual activity

17  with his or her physician.

18         (k)  Making deceptive, untrue, or fraudulent

19  representations in or related to the practice of medicine or

20  employing a trick or scheme in the practice of medicine.

21         (l)  Soliciting patients, either personally or through

22  an agent, through the use of fraud, intimidation, undue

23  influence, or a form of overreaching or vexatious conduct.  A

24  solicitation is any communication which directly or implicitly

25  requests an immediate oral response from the recipient.

26         (m)  Failing to keep legible, as defined by department

27  rule in consultation with the board, medical records that

28  identify the licensed physician or the physician extender and

29  supervising physician by name and professional title who is or

30  are responsible for rendering, ordering, supervising, or

31  billing for each diagnostic or treatment procedure and that


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                                          HB 1867, First Engrossed



  1  justify the course of treatment of the patient, including, but

  2  not limited to, patient histories; examination results; test

  3  results; records of drugs prescribed, dispensed, or

  4  administered; and reports of consultations and

  5  hospitalizations.

  6         (n)  Exercising influence on the patient or client in

  7  such a manner as to exploit the patient or client for

  8  financial gain of the licensee or of a third party, which

  9  shall include, but not be limited to, the promoting or selling

10  of services, goods, appliances, or drugs.

11         (o)  Promoting or advertising on any prescription form

12  of a community pharmacy unless the form shall also state "This

13  prescription may be filled at any pharmacy of your choice."

14         (p)  Performing professional services which have not

15  been duly authorized by the patient or client, or his or her

16  legal representative, except as provided in s. 743.064, s.

17  766.103, or s. 768.13.

18         (q)  Prescribing, dispensing, administering, mixing, or

19  otherwise preparing a legend drug, including any controlled

20  substance, other than in the course of the physician's

21  professional practice.  For the purposes of this paragraph, it

22  shall be legally presumed that prescribing, dispensing,

23  administering, mixing, or otherwise preparing legend drugs,

24  including all controlled substances, inappropriately or in

25  excessive or inappropriate quantities is not in the best

26  interest of the patient and is not in the course of the

27  physician's professional practice, without regard to his or

28  her intent.

29         (r)  Prescribing, dispensing, or administering any

30  medicinal drug appearing on any schedule set forth in chapter

31  893 by the physician to himself or herself, except one


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                                          HB 1867, First Engrossed



  1  prescribed, dispensed, or administered to the physician by

  2  another practitioner authorized to prescribe, dispense, or

  3  administer medicinal drugs.

  4         (s)  Being unable to practice medicine with reasonable

  5  skill and safety to patients by reason of illness or use of

  6  alcohol, drugs, narcotics, chemicals, or any other type of

  7  material or as a result of any mental or physical condition.

  8  In enforcing this paragraph, the department shall have, upon a

  9  finding of the secretary or the secretary's designee that

10  probable cause exists to believe that the licensee is unable

11  to practice medicine because of the reasons stated in this

12  paragraph, the authority to issue an order to compel a

13  licensee to submit to a mental or physical examination by

14  physicians designated by the department. If the licensee

15  refuses to comply with such order, the department's order

16  directing such examination may be enforced by filing a

17  petition for enforcement in the circuit court where the

18  licensee resides or does business. The licensee against whom

19  the petition is filed may not be named or identified by

20  initials in any public court records or documents, and the

21  proceedings shall be closed to the public.  The department

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

23  51.011. A licensee or certificateholder affected under this

24  paragraph shall at reasonable intervals be afforded an

25  opportunity to demonstrate that he or she can resume the

26  competent practice of medicine with reasonable skill and

27  safety to patients.

28         (t)  Gross or repeated malpractice or the failure to

29  practice medicine with that level of care, skill, and

30  treatment which is recognized by a reasonably prudent similar

31  physician as being acceptable under similar conditions and


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                                          HB 1867, First Engrossed



  1  circumstances.  The board shall give great weight to the

  2  provisions of s. 766.102 when enforcing this paragraph.  As

  3  used in this paragraph, "repeated malpractice" includes, but

  4  is not limited to, three or more claims for medical

  5  malpractice within the previous 5-year period resulting in

  6  indemnities being paid in excess of $25,000 each to the

  7  claimant in a judgment or settlement and which incidents

  8  involved negligent conduct by the physician.  As used in this

  9  paragraph, "gross malpractice" or "the failure to practice

10  medicine with that level of care, skill, and treatment which

11  is recognized by a reasonably prudent similar physician as

12  being acceptable under similar conditions and circumstances,"

13  shall not be construed so as to require more than one

14  instance, event, or act.  Nothing in this paragraph shall be

15  construed to require that a physician be incompetent to

16  practice medicine in order to be disciplined pursuant to this

17  paragraph.

18         (u)  Performing any procedure or prescribing any

19  therapy which, by the prevailing standards of medical practice

20  in the community, would constitute experimentation on a human

21  subject, without first obtaining full, informed, and written

22  consent.

23         (v)  Practicing or offering to practice beyond the

24  scope permitted by law or accepting and performing

25  professional responsibilities which the licensee knows or has

26  reason to know that he or she is not competent to perform. The

27  board may establish by rule standards of practice and

28  standards of care for particular practice settings, including,

29  but not limited to, education and training, equipment and

30  supplies, medications including anesthetics, assistance of and

31  delegation to other personnel, transfer agreements,


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                                          HB 1867, First Engrossed



  1  sterilization, records, performance of complex or multiple

  2  procedures, informed consent, and policy and procedure

  3  manuals.

  4         (w)  Delegating professional responsibilities to a

  5  person when the licensee delegating such responsibilities

  6  knows or has reason to know that such person is not qualified

  7  by training, experience, or licensure to perform them.

  8         (x)  Violating any provision of this chapter, a rule of

  9  the board or department, or a lawful order of the board or

10  department previously entered in a disciplinary hearing or

11  failing to comply with a lawfully issued subpoena of the

12  department.

13         (y)  Conspiring with another licensee or with any other

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

15  tend to coerce, intimidate, or preclude another licensee from

16  lawfully advertising his or her services.

17         (z)  Procuring, or aiding or abetting in the procuring

18  of, an unlawful termination of pregnancy.

19         (aa)  Presigning blank prescription forms.

20         (bb)  Prescribing any medicinal drug appearing on

21  Schedule II in chapter 893 by the physician for office use.

22         (cc)  Prescribing, ordering, dispensing, administering,

23  supplying, selling, or giving any drug which is a Schedule II

24  amphetamine or a Schedule II sympathomimetic amine drug or any

25  compound thereof, pursuant to chapter 893, to or for any

26  person except for:

27         1.  The treatment of narcolepsy; hyperkinesis;

28  behavioral syndrome characterized by the developmentally

29  inappropriate symptoms of moderate to severe distractability,

30  short attention span, hyperactivity, emotional lability, and

31  impulsivity; or drug-induced brain dysfunction;


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                                          HB 1867, First Engrossed



  1         2.  The differential diagnostic psychiatric evaluation

  2  of depression or the treatment of depression shown to be

  3  refractory to other therapeutic modalities; or

  4         3.  The clinical investigation of the effects of such

  5  drugs or compounds when an investigative protocol therefor is

  6  submitted to, reviewed, and approved by the board before such

  7  investigation is begun.

  8         (dd)  Failing to supervise adequately the activities of

  9  those physician assistants, paramedics, emergency medical

10  technicians, or advanced registered nurse practitioners acting

11  under the supervision of the physician.

12         (ee)  Prescribing, ordering, dispensing, administering,

13  supplying, selling, or giving growth hormones, testosterone or

14  its analogs, human chorionic gonadotropin (HCG), or other

15  hormones for the purpose of muscle building or to enhance

16  athletic performance. For the purposes of this subsection, the

17  term "muscle building" does not include the treatment of

18  injured muscle.  A prescription written for the drug products

19  listed above may be dispensed by the pharmacist with the

20  presumption that the prescription is for legitimate medical

21  use.

22         (ff)  Prescribing, ordering, dispensing, administering,

23  supplying, selling, or giving amygdalin (laetrile) to any

24  person.

25         (gg)  Misrepresenting or concealing a material fact at

26  any time during any phase of a licensing or disciplinary

27  process or procedure.

28         (hh)  Improperly interfering with an investigation or

29  with any disciplinary proceeding.

30         (ii)  Failing to report to the department any licensee

31  under this chapter or under chapter 459 who the physician or


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                                          HB 1867, First Engrossed



  1  physician assistant knows has violated the grounds for

  2  disciplinary action set out in the law under which that person

  3  is licensed and who provides health care services in a

  4  facility licensed under chapter 395, or a health maintenance

  5  organization certificated under part I of chapter 641, in

  6  which the physician or physician assistant also provides

  7  services.

  8         (jj)  Being found by any court in this state to have

  9  provided corroborating written medical expert opinion attached

10  to any statutorily required notice of claim or intent or to

11  any statutorily required response rejecting a claim, without

12  reasonable investigation.

13         (kk)  Failing to report to the board, in writing,

14  within 30 days if action as defined in paragraph (b) has been

15  taken against one's license to practice medicine in another

16  state, territory, or country.

17         (ll)  Advertising or holding oneself out as a

18  board-certified specialist, if not qualified under s.

19  458.3312, in violation of this chapter.

20         (mm)  Failing to comply with the requirements of ss.

21  381.026 and 381.0261 to provide patients with information

22  about their patient rights and how to file a patient

23  complaint.

24         (nn)  Violating any provision of this chapter or

25  chapter 456, or any rules adopted pursuant thereto.

26         (2)  The board may enter an order denying licensure or

27  imposing any of the penalties in s. 456.072(2) against any

28  applicant for licensure or licensee who is found guilty of

29  violating any provision of subsection (1) of this section or

30  who is found guilty of violating any provision of s.

31  456.072(1). When the board finds any person guilty of any of


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                                          HB 1867, First Engrossed



  1  the grounds set forth in subsection (1), including conduct

  2  that would constitute a substantial violation of subsection

  3  (1) which occurred prior to licensure, it may enter an order

  4  imposing one or more of the following penalties:

  5         (a)  Refusal to certify, or certification with

  6  restrictions, to the department an application for licensure,

  7  certification, or registration.

  8         (b)  Revocation or suspension of a license.

  9         (c)  Restriction of practice.

10         (d)  Imposition of an administrative fine not to exceed

11  $10,000 for each count or separate offense.

12         (e)  Issuance of a reprimand.

13         (f)  Placement of the physician on probation for a

14  period of time and subject to such conditions as the board may

15  specify, including, but not limited to, requiring the

16  physician to submit to treatment, to attend continuing

17  education courses, to submit to reexamination, or to work

18  under the supervision of another physician.

19         (g)  Issuance of a letter of concern.

20         (h)  Corrective action.

21         (i)  Refund of fees billed to and collected from the

22  patient.

23         (j)  Imposition of an administrative fine in accordance

24  with s. 381.0261 for violations regarding patient rights.

25  

26  In determining what action is appropriate, the board must

27  first consider what sanctions are necessary to protect the

28  public or to compensate the patient.  Only after those

29  sanctions have been imposed may the disciplining authority

30  consider and include in the order requirements designed to

31  rehabilitate the physician.  All costs associated with


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                                          HB 1867, First Engrossed



  1  compliance with orders issued under this subsection are the

  2  obligation of the physician.

  3         Section 21.  Subsection (2) of section 458.345, Florida

  4  Statutes, is amended to read:

  5         458.345  Registration of resident physicians, interns,

  6  and fellows; list of hospital employees; prescribing of

  7  medicinal drugs; penalty.--

  8         (2)  The board shall not certify to the department for

  9  registration any applicant who is under investigation in any

10  state or jurisdiction for an act which would constitute

11  grounds the basis for imposing a disciplinary action under

12  penalty specified in s. 458.331(2)(b) until such time as the

13  investigation is completed, at which time the provisions of s.

14  458.331 shall apply.

15         Section 22.  Subsection (7) of section 458.347, Florida

16  Statutes, is amended to read:

17         458.347  Physician assistants.--

18         (7)  PHYSICIAN ASSISTANT LICENSURE.--

19         (g)  The Board of Medicine may impose any of the

20  penalties authorized under specified in ss. 456.072 and

21  458.331(2) upon a physician assistant if the physician

22  assistant or the supervising physician has been found guilty

23  of or is being investigated for any act that constitutes a

24  violation of this chapter or chapter 456.

25         Section 23.  Subsection (6) of section 459.0085,

26  Florida Statutes, is amended to read:

27         459.0085  Financial responsibility.--

28         (6)  Any deceptive, untrue, or fraudulent

29  representation by the licensee with respect to any provision

30  of this section shall result in permanent disqualification

31  from any exemption to mandated financial responsibility as


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                                          HB 1867, First Engrossed



  1  provided in this section and shall constitute grounds for

  2  disciplinary action under as specified in s. 459.015.

  3         Section 24.  Subsections (1) and (2) of section

  4  459.015, Florida Statutes, are amended to read:

  5         459.015  Grounds for disciplinary action; action by the

  6  board and department.--

  7         (1)  The following acts shall constitute grounds for

  8  denial of a license or disciplinary action, as specified in s.

  9  456.072(2) which the disciplinary actions specified in

10  subsection (2) may be taken:

11         (a)  Attempting to obtain, obtaining, or renewing a

12  license to practice osteopathic medicine or a certificate

13  issued under this chapter by bribery, by fraudulent

14  misrepresentations, or through an error of the department or

15  the board.

16         (b)  Having a license or the authority to practice

17  osteopathic medicine revoked, suspended, or otherwise acted

18  against, including the denial of licensure, by the licensing

19  authority of any jurisdiction, including its agencies or

20  subdivisions.  The licensing authority's acceptance of a

21  physician's relinquishment of license, stipulation, consent

22  order, or other settlement offered in response to or in

23  anticipation of the filing of administrative charges against

24  the physician shall be construed as action against the

25  physician's license.

26         (c)  Being convicted or found guilty, regardless of

27  adjudication, of a crime in any jurisdiction which directly

28  relates to the practice of osteopathic medicine or to the

29  ability to practice osteopathic medicine.  A plea of nolo

30  contendere shall create a rebuttable presumption of guilt to

31  the underlying criminal charges.


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                                          HB 1867, First Engrossed



  1         (d)  False, deceptive, or misleading advertising.

  2         (e)  Failing to report to the department or the

  3  department's impaired professional consultant any person who

  4  the licensee or certificateholder knows is in violation of

  5  this chapter or of the rules of the department or the board.

  6  A treatment provider, approved pursuant to s. 456.076, shall

  7  provide the department or consultant with information in

  8  accordance with the requirements of s. 456.076(3), (4), (5),

  9  and (6).

10         (f)  Aiding, assisting, procuring, or advising any

11  unlicensed person to practice osteopathic medicine contrary to

12  this chapter or to a rule of the department or the board.

13         (g)  Failing to perform any statutory or legal

14  obligation placed upon a licensed osteopathic physician.

15         (h)  Giving false testimony in the course of any legal

16  or administrative proceedings relating to the practice of

17  medicine or the delivery of health care services.

18         (i)  Making or filing a report which the licensee knows

19  to be false, intentionally or negligently failing to file a

20  report or record required by state or federal law, willfully

21  impeding or obstructing such filing, or inducing another

22  person to do so. Such reports or records shall include only

23  those which are signed in the capacity as a licensed

24  osteopathic physician.

25         (j)  Paying or receiving any commission, bonus,

26  kickback, or rebate, or engaging in any split-fee arrangement

27  in any form whatsoever with a physician, organization, agency,

28  person, partnership, firm, corporation, or other business

29  entity, for patients referred to providers of health care

30  goods and services, including, but not limited to, hospitals,

31  nursing homes, clinical laboratories, ambulatory surgical


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                                          HB 1867, First Engrossed



  1  centers, or pharmacies.  The provisions of this paragraph

  2  shall not be construed to prevent an osteopathic physician

  3  from receiving a fee for professional consultation services.

  4         (k)  Refusing to provide health care based on a

  5  patient's participation in pending or past litigation or

  6  participation in any disciplinary action conducted pursuant to

  7  this chapter, unless such litigation or disciplinary action

  8  directly involves the osteopathic physician requested to

  9  provide services.

10         (l)  Exercising influence within a patient-physician

11  relationship for purposes of engaging a patient in sexual

12  activity. A patient shall be presumed to be incapable of

13  giving free, full, and informed consent to sexual activity

14  with his or her physician.

15         (m)  Making deceptive, untrue, or fraudulent

16  representations in or related to the practice of osteopathic

17  medicine or employing a trick or scheme in the practice of

18  osteopathic medicine.

19         (n)  Soliciting patients, either personally or through

20  an agent, through the use of fraud, intimidation, undue

21  influence, or forms of overreaching or vexatious conduct.  A

22  solicitation is any communication which directly or implicitly

23  requests an immediate oral response from the recipient.

24         (o)  Failing to keep legible, as defined by department

25  rule in consultation with the board, medical records that

26  identify the licensed osteopathic physician or the osteopathic

27  physician extender and supervising osteopathic physician by

28  name and professional title who is or are responsible for

29  rendering, ordering, supervising, or billing for each

30  diagnostic or treatment procedure and that justify the course

31  of treatment of the patient, including, but not limited to,


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                                          HB 1867, First Engrossed



  1  patient histories; examination results; test results; records

  2  of drugs prescribed, dispensed, or administered; and reports

  3  of consultations and hospitalizations.

  4         (p)  Fraudulently altering or destroying records

  5  relating to patient care or treatment, including, but not

  6  limited to, patient histories, examination results, and test

  7  results.

  8         (q)  Exercising influence on the patient or client in

  9  such a manner as to exploit the patient or client for

10  financial gain of the licensee or of a third party which shall

11  include, but not be limited to, the promotion or sale of

12  services, goods, appliances, or drugs.

13         (r)  Promoting or advertising on any prescription form

14  of a community pharmacy, unless the form shall also state

15  "This prescription may be filled at any pharmacy of your

16  choice."

17         (s)  Performing professional services which have not

18  been duly authorized by the patient or client or his or her

19  legal representative except as provided in s. 743.064, s.

20  766.103, or s. 768.13.

21         (t)  Prescribing, dispensing, administering, supplying,

22  selling, giving, mixing, or otherwise preparing a legend drug,

23  including all controlled substances, other than in the course

24  of the osteopathic physician's professional practice.  For the

25  purposes of this paragraph, it shall be legally presumed that

26  prescribing, dispensing, administering, supplying, selling,

27  giving, mixing, or otherwise preparing legend drugs, including

28  all controlled substances, inappropriately or in excessive or

29  inappropriate quantities is not in the best interest of the

30  patient and is not in the course of the osteopathic

31  


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                                          HB 1867, First Engrossed



  1  physician's professional practice, without regard to his or

  2  her intent.

  3         (u)  Prescribing or dispensing any medicinal drug

  4  appearing on any schedule set forth in chapter 893 by the

  5  osteopathic physician for himself or herself or administering

  6  any such drug by the osteopathic physician to himself or

  7  herself unless such drug is prescribed for the osteopathic

  8  physician by another practitioner authorized to prescribe

  9  medicinal drugs.

10         (v)  Prescribing, ordering, dispensing, administering,

11  supplying, selling, or giving amygdalin (laetrile) to any

12  person.

13         (w)  Being unable to practice osteopathic medicine with

14  reasonable skill and safety to patients by reason of illness

15  or use of alcohol, drugs, narcotics, chemicals, or any other

16  type of material or as a result of any mental or physical

17  condition.  In enforcing this paragraph, the department shall,

18  upon a finding of the secretary or the secretary's designee

19  that probable cause exists to believe that the licensee is

20  unable to practice medicine because of the reasons stated in

21  this paragraph, have the authority to issue an order to compel

22  a licensee to submit to a mental or physical examination by

23  physicians designated by the department.  If the licensee

24  refuses to comply with such order, the department's order

25  directing such examination may be enforced by filing a

26  petition for enforcement in the circuit court where the

27  licensee resides or does business.  The licensee against whom

28  the petition is filed shall not be named or identified by

29  initials in any public court records or documents, and the

30  proceedings shall be closed to the public.  The department

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


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                                          HB 1867, First Engrossed



  1  51.011.  A licensee or certificateholder affected under this

  2  paragraph shall at reasonable intervals be afforded an

  3  opportunity to demonstrate that he or she can resume the

  4  competent practice of medicine with reasonable skill and

  5  safety to patients.

  6         (x)  Gross or repeated malpractice or the failure to

  7  practice osteopathic medicine with that level of care, skill,

  8  and treatment which is recognized by a reasonably prudent

  9  similar osteopathic physician as being acceptable under

10  similar conditions and circumstances. The board shall give

11  great weight to the provisions of s. 766.102 when enforcing

12  this paragraph. As used in this paragraph, "repeated

13  malpractice" includes, but is not limited to, three or more

14  claims for medical malpractice within the previous 5-year

15  period resulting in indemnities being paid in excess of

16  $25,000 each to the claimant in a judgment or settlement and

17  which incidents involved negligent conduct by the osteopathic

18  physician. As used in this paragraph, "gross malpractice" or

19  "the failure to practice osteopathic medicine with that level

20  of care, skill, and treatment which is recognized by a

21  reasonably prudent similar osteopathic physician as being

22  acceptable under similar conditions and circumstances" shall

23  not be construed so as to require more than one instance,

24  event, or act. Nothing in this paragraph shall be construed to

25  require that an osteopathic physician be incompetent to

26  practice osteopathic medicine in order to be disciplined

27  pursuant to this paragraph.  A recommended order by an

28  administrative law judge or a final order of the board finding

29  a violation under this paragraph shall specify whether the

30  licensee was found to have committed "gross malpractice,"

31  "repeated malpractice," or "failure to practice osteopathic


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                                          HB 1867, First Engrossed



  1  medicine with that level of care, skill, and treatment which

  2  is recognized as being acceptable under similar conditions and

  3  circumstances," or any combination thereof, and any

  4  publication by the board shall so specify.

  5         (y)  Performing any procedure or prescribing any

  6  therapy which, by the prevailing standards of medical practice

  7  in the community, would constitute experimentation on human

  8  subjects, without first obtaining full, informed, and written

  9  consent.

10         (z)  Practicing or offering to practice beyond the

11  scope permitted by law or accepting and performing

12  professional responsibilities which the licensee knows or has

13  reason to know that he or she is not competent to perform. The

14  board may establish by rule standards of practice and

15  standards of care for particular practice settings, including,

16  but not limited to, education and training, equipment and

17  supplies, medications including anesthetics, assistance of and

18  delegation to other personnel, transfer agreements,

19  sterilization, records, performance of complex or multiple

20  procedures, informed consent, and policy and procedure

21  manuals.

22         (aa)  Delegating professional responsibilities to a

23  person when the licensee delegating such responsibilities

24  knows or has reason to know that such person is not qualified

25  by training, experience, or licensure to perform them.

26         (bb)  Violating any provision of this chapter, a rule

27  of the board or department, or a lawful order of the board or

28  department previously entered in a disciplinary hearing or

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

30  or department.

31  


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                                          HB 1867, First Engrossed



  1         (cc)  Conspiring with another licensee or with any

  2  other person to commit an act, or committing an act, which

  3  would tend to coerce, intimidate, or preclude another licensee

  4  from lawfully advertising his or her services.

  5         (dd)  Procuring, or aiding or abetting in the procuring

  6  of, an unlawful termination of pregnancy.

  7         (ee)  Presigning blank prescription forms.

  8         (ff)  Prescribing any medicinal drug appearing on

  9  Schedule II in chapter 893 by the osteopathic physician for

10  office use.

11         (gg)  Prescribing, ordering, dispensing, administering,

12  supplying, selling, or giving any drug which is a Schedule II

13  amphetamine or Schedule II sympathomimetic amine drug or any

14  compound thereof, pursuant to chapter 893, to or for any

15  person except for:

16         1.  The treatment of narcolepsy; hyperkinesis;

17  behavioral syndrome characterized by the developmentally

18  inappropriate symptoms of moderate to severe distractability,

19  short attention span, hyperactivity, emotional lability, and

20  impulsivity; or drug-induced brain dysfunction;

21         2.  The differential diagnostic psychiatric evaluation

22  of depression or the treatment of depression shown to be

23  refractory to other therapeutic modalities; or

24         3.  The clinical investigation of the effects of such

25  drugs or compounds when an investigative protocol therefor is

26  submitted to, reviewed, and approved by the board before such

27  investigation is begun.

28         (hh)  Failing to supervise adequately the activities of

29  those physician assistants, paramedics, emergency medical

30  technicians, advanced registered nurse practitioners, or other

31  


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                                          HB 1867, First Engrossed



  1  persons acting under the supervision of the osteopathic

  2  physician.

  3         (ii)  Prescribing, ordering, dispensing, administering,

  4  supplying, selling, or giving growth hormones, testosterone or

  5  its analogs, human chorionic gonadotropin (HCG), or other

  6  hormones for the purpose of muscle building or to enhance

  7  athletic performance. For the purposes of this subsection, the

  8  term "muscle building" does not include the treatment of

  9  injured muscle.  A prescription written for the drug products

10  listed above may be dispensed by the pharmacist with the

11  presumption that the prescription is for legitimate medical

12  use.

13         (jj)  Misrepresenting or concealing a material fact at

14  any time during any phase of a licensing or disciplinary

15  process or procedure.

16         (kk)  Improperly interfering with an investigation or

17  with any disciplinary proceeding.

18         (ll)  Failing to report to the department any licensee

19  under chapter 458 or under this chapter who the osteopathic

20  physician or physician assistant knows has violated the

21  grounds for disciplinary action set out in the law under which

22  that person is licensed and who provides health care services

23  in a facility licensed under chapter 395, or a health

24  maintenance organization certificated under part I of chapter

25  641, in which the osteopathic physician or physician assistant

26  also provides services.

27         (mm)  Being found by any court in this state to have

28  provided corroborating written medical expert opinion attached

29  to any statutorily required notice of claim or intent or to

30  any statutorily required response rejecting a claim, without

31  reasonable investigation.


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                                          HB 1867, First Engrossed



  1         (nn)  Advertising or holding oneself out as a

  2  board-certified specialist in violation of this chapter.

  3         (oo)  Failing to comply with the requirements of ss.

  4  381.026 and 381.0261 to provide patients with information

  5  about their patient rights and how to file a patient

  6  complaint.

  7         (pp)  Violating any provision of this chapter or

  8  chapter 456, or any rules adopted pursuant thereto.

  9         (2)  The board may enter an order denying licensure or

10  imposing any of the penalties in s. 456.072(2) against any

11  applicant for licensure or licensee who is found guilty of

12  violating any provision of subsection (1) of this section or

13  who is found guilty of violating any provision of s.

14  456.072(1). When the board finds any person guilty of any of

15  the grounds set forth in subsection (1), it may enter an order

16  imposing one or more of the following penalties:

17         (a)  Refusal to certify, or certify with restrictions,

18  to the department an application for certification, licensure,

19  renewal, or reactivation.

20         (b)  Revocation or suspension of a license or

21  certificate.

22         (c)  Restriction of practice.

23         (d)  Imposition of an administrative fine not to exceed

24  $10,000 for each count or separate offense.

25         (e)  Issuance of a reprimand.

26         (f)  Issuance of a letter of concern.

27         (g)  Placement of the osteopathic physician on

28  probation for a period of time and subject to such conditions

29  as the board may specify, including, but not limited to,

30  requiring the osteopathic physician to submit to treatment,

31  attend continuing education courses, submit to reexamination,


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                                          HB 1867, First Engrossed



  1  or work under the supervision of another osteopathic

  2  physician.

  3         (h)  Corrective action.

  4         (i)  Refund of fees billed to and collected from the

  5  patient.

  6         (j)  Imposition of an administrative fine in accordance

  7  with s. 381.0261 for violations regarding patient rights.

  8  

  9  In determining what action is appropriate, the board must

10  first consider what sanctions are necessary to protect the

11  public or to compensate the patient.  Only after those

12  sanctions have been imposed may the disciplining authority

13  consider and include in the order requirements designed to

14  rehabilitate the physician.  All costs associated with

15  compliance with orders issued under this subsection are the

16  obligation of the physician.

17         Section 25.  Paragraph (f) of subsection (7) of section

18  459.022, Florida Statutes, is amended to read:

19         459.022  Physician assistants.--

20         (7)  PHYSICIAN ASSISTANT LICENSURE.--

21         (f)  The Board of Osteopathic Medicine may impose any

22  of the penalties authorized under specified in ss. 456.072 and

23  459.015(2) upon a physician assistant if the physician

24  assistant or the supervising physician has been found guilty

25  of or is being investigated for any act that constitutes a

26  violation of this chapter or chapter 456.

27         Section 26.  Subsections (1) and (2) of section

28  460.413, Florida Statutes, are amended to read:

29         460.413  Grounds for disciplinary action; action by

30  board or department.--

31  


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                                          HB 1867, First Engrossed



  1         (1)  The following acts shall constitute grounds for

  2  denial of a license or disciplinary action, as specified in s.

  3  456.072(2) which the disciplinary actions specified in

  4  subsection (2) may be taken:

  5         (a)  Attempting to obtain, obtaining, or renewing a

  6  license to practice chiropractic medicine by bribery, by

  7  fraudulent misrepresentations, or through an error of the

  8  department or the board.

  9         (b)  Having a license to practice chiropractic medicine

10  revoked, suspended, or otherwise acted against, including the

11  denial of licensure, by the licensing authority of another

12  state, territory, or country.

13         (c)  Being convicted or found guilty, regardless of

14  adjudication, of a crime in any jurisdiction which directly

15  relates to the practice of chiropractic medicine or to the

16  ability to practice chiropractic medicine. Any plea of nolo

17  contendere shall be considered a conviction for purposes of

18  this chapter.

19         (d)  False, deceptive, or misleading advertising.

20         (e)  Causing to be advertised, by any means whatsoever,

21  any advertisement which does not contain an assertion or

22  statement which would identify herself or himself as a

23  chiropractic physician or identify such chiropractic clinic or

24  related institution in which she or he practices or in which

25  she or he is owner, in whole or in part, as a chiropractic

26  institution.

27         (f)  Advertising, practicing, or attempting to practice

28  under a name other than one's own.

29         (g)  Failing to report to the department any person who

30  the licensee knows is in violation of this chapter or of the

31  rules of the department or the board.


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                                          HB 1867, First Engrossed



  1         (h)  Aiding, assisting, procuring, or advising any

  2  unlicensed person to practice chiropractic medicine contrary

  3  to this chapter or to a rule of the department or the board.

  4         (i)  Failing to perform any statutory or legal

  5  obligation placed upon a licensed chiropractic physician.

  6         (j)  Making or filing a report which the licensee knows

  7  to be false, intentionally or negligently failing to file a

  8  report or record required by state or federal law, willfully

  9  impeding or obstructing such filing or inducing another person

10  to do so.  Such reports or records shall include only those

11  which are signed in the capacity of a licensed chiropractic

12  physician.

13         (k)  Making misleading, deceptive, untrue, or

14  fraudulent representations in the practice of chiropractic

15  medicine or employing a trick or scheme in the practice of

16  chiropractic medicine when such trick or scheme fails to

17  conform to the generally prevailing standards of treatment in

18  the chiropractic medical community.

19         (l)  Soliciting patients either personally or through

20  an agent, unless such solicitation falls into a category of

21  solicitations approved by rule of the board.

22         (m)  Failing to keep legibly written chiropractic

23  medical records that identify clearly by name and credentials

24  the licensed chiropractic physician rendering, ordering,

25  supervising, or billing for each examination or treatment

26  procedure and that justify the course of treatment of the

27  patient, including, but not limited to, patient histories,

28  examination results, test results, X rays, and diagnosis of a

29  disease, condition, or injury.  X rays need not be retained

30  for more than 4 years.

31  


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                                          HB 1867, First Engrossed



  1         (n)  Exercising influence on the patient or client in

  2  such a manner as to exploit the patient or client for

  3  financial gain of the licensee or of a third party which shall

  4  include, but not be limited to, the promotion or sale of

  5  services, goods or appliances, or drugs.

  6         (o)  Performing professional services which have not

  7  been duly authorized by the patient or client or her or his

  8  legal representative except as provided in ss. 743.064,

  9  766.103, and 768.13.

10         (p)  Prescribing, dispensing, or administering any

11  medicinal drug except as authorized by s. 460.403(9)(c)2.,

12  performing any surgery, or practicing obstetrics.

13         (q)  Being unable to practice chiropractic medicine

14  with reasonable skill and safety to patients by reason of

15  illness or use of alcohol, drugs, narcotics, chemicals, or any

16  other type of material or as a result of any mental or

17  physical condition.  In enforcing this paragraph, upon a

18  finding by the secretary of the department, or his or her

19  designee, or the probable cause panel of the board that

20  probable cause exists to believe that the licensee is unable

21  to practice the profession because of reasons stated in this

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

23  licensee to submit to a mental or physical examination by a

24  physician designated by the department. If the licensee

25  refuses to comply with the department's order, the department

26  may file a petition for enforcement in the circuit court of

27  the circuit in which the licensee resides or does business.

28  The department shall be entitled to the summary procedure

29  provided in s. 51.011.  The record of proceedings to obtain a

30  compelled mental or physical examination shall not be used

31  against a licensee in any other proceedings.  A chiropractic


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                                          HB 1867, First Engrossed



  1  physician affected under this paragraph shall at reasonable

  2  intervals be afforded an opportunity to demonstrate that she

  3  or he can resume the competent practice of chiropractic

  4  medicine with reasonable skill and safety to patients.

  5         (r)  Gross or repeated malpractice or the failure to

  6  practice chiropractic medicine at a level of care, skill, and

  7  treatment which is recognized by a reasonably prudent

  8  chiropractic physician as being acceptable under similar

  9  conditions and circumstances. The board shall give great

10  weight to the standards for malpractice in s. 766.102 in

11  interpreting this provision. A recommended order by an

12  administrative law judge, or a final order of the board

13  finding a violation under this section shall specify whether

14  the licensee was found to have committed "gross malpractice,"

15  "repeated malpractice," or "failure to practice chiropractic

16  medicine with that level of care, skill, and treatment which

17  is recognized as being acceptable under similar conditions and

18  circumstances" or any combination thereof, and any publication

19  by the board shall so specify.

20         (s)  Performing any procedure or prescribing any

21  therapy which, by the prevailing standards of chiropractic

22  medical practice in the community, would constitute

23  experimentation on human subjects, without first obtaining

24  full, informed, and written consent.

25         (t)  Practicing or offering to practice beyond the

26  scope permitted by law or accepting and performing

27  professional responsibilities which the licensee knows or has

28  reason to know that she or he is not competent to perform.

29         (u)  Delegating professional responsibilities to a

30  person when the licensee delegating such responsibilities

31  


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                                          HB 1867, First Engrossed



  1  knows or has reason to know that such person is not qualified

  2  by training, experience, or licensure to perform them.

  3         (v)  Violating any provision of this chapter, any rule

  4  of the board or department, or a lawful order of the board or

  5  department previously entered in a disciplinary hearing or

  6  failing to comply with a lawfully issued subpoena of the

  7  department.

  8         (w)  Conspiring with another licensee or with any other

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

10  tend to coerce, intimidate, or preclude another licensee from

11  lawfully advertising her or his services.

12         (x)  Submitting to any third-party payor a claim for a

13  service or treatment which was not actually provided to a

14  patient.

15         (y)  Failing to preserve identity of funds and property

16  of a patient. As provided by rule of the board, money or other

17  property entrusted to a chiropractic physician for a specific

18  purpose, including advances for costs and expenses of

19  examination or treatment, is to be held in trust and must be

20  applied only to that purpose.  Money and other property of

21  patients coming into the hands of a chiropractic physician are

22  not subject to counterclaim or setoff for chiropractic

23  physician's fees, and a refusal to account for and deliver

24  over such money and property upon demand shall be deemed a

25  conversion. This is not to preclude the retention of money or

26  other property upon which the chiropractic physician has a

27  valid lien for services or to preclude the payment of agreed

28  fees from the proceeds of transactions for examinations or

29  treatments.  Controversies as to the amount of the fees are

30  not grounds for disciplinary proceedings unless the amount

31  demanded is clearly excessive or extortionate, or the demand


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                                          HB 1867, First Engrossed



  1  is fraudulent. All funds of patients paid to a chiropractic

  2  physician, other than advances for costs and expenses, shall

  3  be deposited in one or more identifiable bank accounts

  4  maintained in the state in which the chiropractic physician's

  5  office is situated, and no funds belonging to the chiropractic

  6  physician shall be deposited therein except as follows:

  7         1.  Funds reasonably sufficient to pay bank charges may

  8  be deposited therein.

  9         2.  Funds belonging in part to a patient and in part

10  presently or potentially to the physician must be deposited

11  therein, but the portion belonging to the physician may be

12  withdrawn when due unless the right of the physician to

13  receive it is disputed by the patient, in which event the

14  disputed portion shall not be withdrawn until the dispute is

15  finally resolved.

16  

17  Every chiropractic physician shall maintain complete records

18  of all funds, securities, and other properties of a patient

19  coming into the possession of the physician and render

20  appropriate accounts to the patient regarding them. In

21  addition, every chiropractic physician shall promptly pay or

22  deliver to the patient, as requested by the patient, the

23  funds, securities, or other properties in the possession of

24  the physician which the patient is entitled to receive.

25         (z)  Offering to accept or accepting payment for

26  services rendered by assignment from any third-party payor

27  after offering to accept or accepting whatever the third-party

28  payor covers as payment in full, if the effect of the offering

29  or acceptance is to eliminate or give the impression of

30  eliminating the need for payment by an insured of any required

31  deductions applicable in the policy of the insured.


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                                          HB 1867, First Engrossed



  1         (aa)  Failing to provide, upon request of the insured,

  2  a copy of a claim submitted to any third-party payor for

  3  service or treatment of the insured.

  4         (bb)  Advertising a fee or charge for a service or

  5  treatment which is different from the fee or charge the

  6  licensee submits to third-party payors for that service or

  7  treatment.

  8         (cc)  Advertising any reduced or discounted fees for

  9  services or treatments, or advertising any free services or

10  treatments, without prominently stating in the advertisement

11  the usual fee of the licensee for the service or treatment

12  which is the subject of the discount, rebate, or free

13  offering.

14         (dd)  Using acupuncture without being certified

15  pursuant to s. 460.403(9)(f).

16         (ee)  Failing to report to the department any licensee

17  under chapter 458 or under chapter 459 who the chiropractic

18  physician or chiropractic physician's assistant knows has

19  violated the grounds for disciplinary action set out in the

20  law under which that person is licensed and who provides

21  health care services in a facility licensed under chapter 395,

22  or a health maintenance organization certificated under part I

23  of chapter 641, in which the chiropractic physician or

24  chiropractic physician's assistant also provides services.

25         (ff)  Violating any provision of this chapter or

26  chapter 456, or any rules adopted pursuant thereto.

27         (2)  The board may enter an order denying licensure or

28  imposing any of the penalties in s. 456.072(2) against any

29  applicant for licensure or licensee who is found guilty of

30  violating any provision of subsection (1) of this section or

31  who is found guilty of violating any provision of s.


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                                          HB 1867, First Engrossed



  1  456.072(1). When the board finds any person guilty of any of

  2  the grounds set forth in subsection (1), it may enter an order

  3  imposing one or more of the following penalties:

  4         (a)  Refusal to certify to the department an

  5  application for licensure.

  6         (b)  Revocation or suspension of a license.

  7         (c)  Restriction of practice.

  8         (d)  Imposition of an administrative fine not to exceed

  9  $10,000 for each count or separate offense.

10         (e)  Issuance of a reprimand.

11         (f)  Placement of the chiropractic physician on

12  probation for a period of time and subject to such conditions

13  as the board may specify, including requiring the chiropractic

14  physician to submit to treatment, to attend continuing

15  education courses, to submit to reexamination, or to work

16  under the supervision of another chiropractic physician.

17         (g)  Imposition of costs of the investigation and

18  prosecution.

19         (h)  Requirement that the chiropractic physician

20  undergo remedial education.

21         (i)  Issuance of a letter of concern.

22         (j)  Corrective action.

23         (k)  Refund of fees billed to and collected from the

24  patient or a third party.

25  

26  In determining what action is appropriate, the board must

27  first consider what sanctions are necessary to protect the

28  public or to compensate the patient. Only after those

29  sanctions have been imposed may the disciplining authority

30  consider and include in the order requirements designed to

31  rehabilitate the chiropractic physician. All costs associated


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                                          HB 1867, First Engrossed



  1  with compliance with orders issued under this subsection are

  2  the obligation of the chiropractic physician.

  3         Section 27.  Subsections (1) and (2) of section

  4  461.013, Florida Statutes, are amended to read:

  5         461.013  Grounds for disciplinary action; action by the

  6  board; investigations by department.--

  7         (1)  The following acts shall constitute grounds for

  8  denial of a license or disciplinary action, as specified in s.

  9  456.072(2) which the disciplinary actions specified in

10  subsection (2) may be taken:

11         (a)  Attempting to obtain, obtaining, or renewing a

12  license to practice podiatric medicine by bribery, by

13  fraudulent misrepresentations, or through an error of the

14  department or the board.

15         (b)  Having a license to practice podiatric medicine

16  revoked, suspended, or otherwise acted against, including the

17  denial of licensure, by the licensing authority of another

18  state, territory, or country.

19         (c)  Being convicted or found guilty, regardless of

20  adjudication, of a crime in any jurisdiction which directly

21  relates to the practice of podiatric medicine or to the

22  ability to practice podiatric medicine.  Any plea of nolo

23  contendere shall be considered a conviction for purposes of

24  this chapter.

25         (d)  False, deceptive, or misleading advertising.

26         (e)  Advertising, practicing, or attempting to practice

27  under a name other than one's own.

28         (f)  Failing to report to the department any person who

29  the licensee knows is in violation of this chapter or of the

30  rules of the department or the board.

31  


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                                          HB 1867, First Engrossed



  1         (g)  Aiding, assisting, procuring, permitting, or

  2  advising any unlicensed person to practice podiatric medicine

  3  contrary to this chapter or to rule of the department or the

  4  board.

  5         (h)  Failing to perform any statutory or legal

  6  obligation placed upon a licensed podiatric physician.

  7         (i)  Making or filing a report which the licensee knows

  8  to be false, intentionally or negligently failing to file a

  9  report or record required by state or federal law, willfully

10  impeding or obstructing such filing or inducing another person

11  to do so.  Such report or records shall include only those

12  which are signed in the capacity of a licensed podiatric

13  physician.

14         (j)  Making misleading, deceptive, untrue, or

15  fraudulent representations in the practice of podiatric

16  medicine or employing a trick or scheme in the practice of

17  podiatric medicine when such scheme or trick fails to conform

18  to the generally prevailing standards of treatment in the

19  podiatric community.

20         (k)  Soliciting patients either personally or through

21  an agent, unless such solicitation falls into a category of

22  solicitations approved by rule of the board.

23         (l)  Failing to keep written medical records justifying

24  the course of treatment of the patient, including, but not

25  limited to, patient histories, examination results, and test

26  results.

27         (m)  Exercising influence on the patient or client in

28  such a manner as to exploit the patient or client for

29  financial gain of the licensee or of a third party which shall

30  include, but not be limited to, the promotion or sale of

31  services, goods, appliances, or drugs and the promoting or


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                                          HB 1867, First Engrossed



  1  advertising on any prescription form of a community pharmacy

  2  unless the form shall also state "This prescription may be

  3  filled at any pharmacy of your choice."

  4         (n)  Performing professional services which have not

  5  been duly authorized by the patient or client or her or his

  6  legal representative except as provided in ss. 743.064,

  7  766.103, and 768.13.

  8         (o)  Prescribing, dispensing, administering, mixing, or

  9  otherwise preparing a legend drug, including all controlled

10  substances, other than in the course of the podiatric

11  physician's professional practice.  For the purposes of this

12  paragraph, it shall be legally presumed that prescribing,

13  dispensing, administering, mixing, or otherwise preparing

14  legend drugs, including all controlled substances,

15  inappropriately or in excessive or inappropriate quantities is

16  not in the best interest of the patient and is not in the

17  course of the podiatric physician's professional practice,

18  without regard to her or his intent.

19         (p)  Prescribing, dispensing, or administering any

20  medicinal drug appearing on any schedule set forth in chapter

21  893 by the podiatric physician to herself or himself except

22  those prescribed, dispensed, or administered to the podiatric

23  physician by another practitioner authorized to prescribe,

24  dispense, or administer them.

25         (q)  Prescribing, ordering, dispensing, administering,

26  supplying, selling, or giving any amphetamine or

27  sympathomimetic amine drug or compound designated as a

28  Schedule II controlled substance pursuant to chapter 893.

29         (r)  Being unable to practice podiatric medicine with

30  reasonable skill and safety to patients by reason of illness

31  or use of alcohol, drugs, narcotics, chemicals, or any other


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                                          HB 1867, First Engrossed



  1  type of material or as a result of any mental or physical

  2  condition.  In enforcing this paragraph the department shall,

  3  upon probable cause, have authority to compel a podiatric

  4  physician to submit to a mental or physical examination by

  5  physicians designated by the department. Failure of a

  6  podiatric physician to submit to such examination when

  7  directed shall constitute an admission of the allegations

  8  against her or him, unless the failure was due to

  9  circumstances beyond her or his control, consequent upon which

10  a default and final order may be entered without the taking of

11  testimony or presentation of evidence.  A podiatric physician

12  affected under this paragraph shall at reasonable intervals be

13  afforded an opportunity to demonstrate that she or he can

14  resume the competent practice of podiatric medicine with

15  reasonable skill and safety to patients.

16         (s)  Gross or repeated malpractice or the failure to

17  practice podiatric medicine at a level of care, skill, and

18  treatment which is recognized by a reasonably prudent

19  podiatric physician as being acceptable under similar

20  conditions and circumstances.  The board shall give great

21  weight to the standards for malpractice in s. 766.102 in

22  interpreting this section. As used in this paragraph,

23  "repeated malpractice" includes, but is not limited to, three

24  or more claims for medical malpractice within the previous

25  5-year period resulting in indemnities being paid in excess of

26  $10,000 each to the claimant in a judgment or settlement and

27  which incidents involved negligent conduct by the podiatric

28  physicians. As used in this paragraph, "gross malpractice" or

29  "the failure to practice podiatric medicine with the level of

30  care, skill, and treatment which is recognized by a reasonably

31  prudent similar podiatric physician as being acceptable under


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                                          HB 1867, First Engrossed



  1  similar conditions and circumstances" shall not be construed

  2  so as to require more than one instance, event, or act.

  3         (t)  Performing any procedure or prescribing any

  4  therapy which, by the prevailing standards of podiatric

  5  medical practice in the community, would constitute

  6  experimentation on human subjects without first obtaining

  7  full, informed, and written consent.

  8         (u)  Practicing or offering to practice beyond the

  9  scope permitted by law or accepting and performing

10  professional responsibilities which the licensee knows or has

11  reason to know that she or he is not competent to perform.

12         (v)  Delegating professional responsibilities to a

13  person when the licensee delegating such responsibilities

14  knows or has reason to know that such person is not qualified

15  by training, experience, or licensure to perform them.

16         (w)  Violating any provision of this chapter or chapter

17  456, any rule of the board or department, or a lawful order of

18  the board or department previously entered in a disciplinary

19  hearing or failing to comply with a lawfully issued subpoena

20  of the board or department.

21         (x)  Conspiring with another licensee or with any other

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

23  tend to coerce, intimidate, or preclude another licensee from

24  lawfully advertising her or his services.

25         (y)  Prescribing, ordering, dispensing, administering,

26  supplying, selling, or giving growth hormones, testosterone or

27  its analogs, human chorionic gonadotropin (HCG), or other

28  hormones for the purpose of muscle building or to enhance

29  athletic performance. For the purposes of this subsection, the

30  term "muscle building" does not include the treatment of

31  injured muscle.  A prescription written for any of the drug


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                                          HB 1867, First Engrossed



  1  products listed above may be dispensed by the pharmacist with

  2  the presumption that the prescription is for legitimate

  3  medical use.

  4         (z)  Fraud, deceit, or misconduct in the practice of

  5  podiatric medicine.

  6         (aa)  Failing to report to the department any licensee

  7  under chapter 458 or chapter 459 who the podiatric physician

  8  knows has violated the grounds for disciplinary action set out

  9  in the law under which that person is licensed and who

10  provides health care services in a facility licensed under

11  chapter 395, or a health maintenance organization certificated

12  under part I of chapter 641, in which the podiatric physician

13  also provides services.

14         (bb)  Failing to comply with the requirements of ss.

15  381.026 and 381.0261 to provide patients with information

16  about their patient rights and how to file a patient

17  complaint.

18         (cc)  Violating any provision of this chapter or

19  chapter 456, or any rules adopted pursuant thereto.

20         (2)  The board may enter an order denying licensure or

21  imposing any of the penalties in s. 456.072(2) against any

22  applicant for licensure or licensee who is found guilty of

23  violating any provision of subsection (1) of this section or

24  who is found guilty of violating any provision of s.

25  456.072(1). When the board finds any person guilty of any of

26  the grounds set forth in subsection (1), it may enter an order

27  imposing one or more of the following penalties:

28         (a)  Refusal to certify to the department an

29  application for licensure.

30         (b)  Revocation or suspension of a license.

31         (c)  Restriction of practice.


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                                          HB 1867, First Engrossed



  1         (d)  Imposition of an administrative fine not to exceed

  2  $10,000 for each count or separate offense.

  3         (e)  Issuance of a reprimand.

  4         (f)  Placing the podiatric physician on probation for a

  5  period of time and subject to such conditions as the board may

  6  specify, including requiring the podiatric physician to submit

  7  to treatment, to attend continuing education courses, to

  8  submit to reexamination, and to work under the supervision of

  9  another podiatric physician.

10         (g)  Imposition of an administrative fine in accordance

11  with s. 381.0261 for violations regarding patient rights.

12         Section 28.  Subsections (1) and (2) of section 462.14,

13  Florida Statutes, are amended to read:

14         462.14  Grounds for disciplinary action; action by the

15  department.--

16         (1)  The following acts constitute grounds for denial

17  of a license or disciplinary action, as specified in s.

18  456.072(2) which the disciplinary actions specified in

19  subsection (2) may be taken:

20         (a)  Attempting to obtain, obtaining, or renewing a

21  license to practice naturopathic medicine by bribery, by

22  fraudulent misrepresentation, or through an error of the

23  department.

24         (b)  Having a license to practice naturopathic medicine

25  revoked, suspended, or otherwise acted against, including the

26  denial of licensure, by the licensing authority of another

27  state, territory, or country.

28         (c)  Being convicted or found guilty, regardless of

29  adjudication, of a crime in any jurisdiction which directly

30  relates to the practice of naturopathic medicine or to the

31  ability to practice naturopathic medicine. Any plea of nolo


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                                          HB 1867, First Engrossed



  1  contendere shall be considered a conviction for purposes of

  2  this chapter.

  3         (d)  False, deceptive, or misleading advertising.

  4         (e)  Advertising, practicing, or attempting to practice

  5  under a name other than one's own.

  6         (f)  Failing to report to the department any person who

  7  the licensee knows is in violation of this chapter or of the

  8  rules of the department.

  9         (g)  Aiding, assisting, procuring, or advising any

10  unlicensed person to practice naturopathic medicine contrary

11  to this chapter or to a rule of the department.

12         (h)  Failing to perform any statutory or legal

13  obligation placed upon a licensed naturopathic physician.

14         (i)  Making or filing a report which the licensee knows

15  to be false, intentionally or negligently failing to file a

16  report or record required by state or federal law, willfully

17  impeding or obstructing such filing or inducing another person

18  to do so.  Such reports or records shall include only those

19  which are signed in the capacity as a licensed naturopathic

20  physician.

21         (j)  Paying or receiving any commission, bonus,

22  kickback, or rebate, or engaging in any split-fee arrangement

23  in any form whatsoever with a physician, organization, agency,

24  or person, either directly or indirectly, for patients

25  referred to providers of health care goods and services,

26  including, but not limited to, hospitals, nursing homes,

27  clinical laboratories, ambulatory surgical centers, or

28  pharmacies.  The provisions of this paragraph shall not be

29  construed to prevent a naturopathic physician from receiving a

30  fee for professional consultation services.

31  


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                                          HB 1867, First Engrossed



  1         (k)  Exercising influence within a patient-physician

  2  relationship for purposes of engaging a patient in sexual

  3  activity. A patient shall be presumed to be incapable of

  4  giving free, full, and informed consent to sexual activity

  5  with her or his physician.

  6         (l)  Making deceptive, untrue, or fraudulent

  7  representations in the practice of naturopathic medicine or

  8  employing a trick or scheme in the practice of naturopathic

  9  medicine when such scheme or trick fails to conform to the

10  generally prevailing standards of treatment in the medical

11  community.

12         (m)  Soliciting patients, either personally or through

13  an agent, through the use of fraud, intimidation, undue

14  influence, or a form of overreaching or vexatious conduct.  A

15  "solicitation" is any communication which directly or

16  implicitly requests an immediate oral response from the

17  recipient.

18         (n)  Failing to keep written medical records justifying

19  the course of treatment of the patient, including, but not

20  limited to, patient histories, examination results, test

21  results, X rays, and records of the prescribing, dispensing

22  and administering of drugs.

23         (o)  Exercising influence on the patient or client in

24  such a manner as to exploit the patient or client for the

25  financial gain of the licensee or of a third party, which

26  shall include, but not be limited to, the promoting or selling

27  of services, goods, appliances, or drugs and the promoting or

28  advertising on any prescription form of a community pharmacy

29  unless the form also states "This prescription may be filled

30  at any pharmacy of your choice."

31  


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                                          HB 1867, First Engrossed



  1         (p)  Performing professional services which have not

  2  been duly authorized by the patient or client, or her or his

  3  legal representative, except as provided in s. 743.064, s.

  4  766.103, or s. 768.13.

  5         (q)  Prescribing, dispensing, administering, mixing, or

  6  otherwise preparing a legend drug, including any controlled

  7  substance, other than in the course of the naturopathic

  8  physician's professional practice.  For the purposes of this

  9  paragraph, it shall be legally presumed that prescribing,

10  dispensing, administering, mixing, or otherwise preparing

11  legend drugs, including all controlled substances,

12  inappropriately or in excessive or inappropriate quantities is

13  not in the best interest of the patient and is not in the

14  course of the naturopathic physician's professional practice,

15  without regard to her or his intent.

16         (r)  Prescribing, dispensing, or administering any

17  medicinal drug appearing on any schedule set forth in chapter

18  893 by the naturopathic physician to herself or himself,

19  except one prescribed, dispensed, or administered to the

20  naturopathic physician by another practitioner authorized to

21  prescribe, dispense, or administer medicinal drugs.

22         (s)  Being unable to practice naturopathic medicine

23  with reasonable skill and safety to patients by reason of

24  illness or use of alcohol, drugs, narcotics, chemicals, or any

25  other type of material or as a result of any mental or

26  physical condition.  In enforcing this paragraph, the

27  department shall have, upon probable cause, authority to

28  compel a naturopathic physician to submit to a mental or

29  physical examination by physicians designated by the

30  department.  The failure of a naturopathic physician to submit

31  to such an examination when so directed shall constitute an


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                                          HB 1867, First Engrossed



  1  admission of the allegations against her or him upon which a

  2  default and final order may be entered without the taking of

  3  testimony or presentation of evidence, unless the failure was

  4  due to circumstances beyond the naturopathic physician's

  5  control.  A naturopathic physician affected under this

  6  paragraph shall at reasonable intervals be afforded an

  7  opportunity to demonstrate that she or he can resume the

  8  competent practice of naturopathic medicine with reasonable

  9  skill and safety to patients. In any proceeding under this

10  paragraph, neither the record of proceedings nor the orders

11  entered by the department may be used against a naturopathic

12  physician in any other proceeding.

13         (t)  Gross or repeated malpractice or the failure to

14  practice naturopathic medicine with that level of care, skill,

15  and treatment which is recognized by a reasonably prudent

16  similar physician as being acceptable under similar conditions

17  and circumstances.  The department shall give great weight to

18  the provisions of s. 766.102 when enforcing this paragraph.

19         (u)  Performing any procedure or prescribing any

20  therapy which, by the prevailing standards of medical practice

21  in the community, constitutes experimentation on a human

22  subject, without first obtaining full, informed, and written

23  consent.

24         (v)  Practicing or offering to practice beyond the

25  scope permitted by law or accepting and performing

26  professional responsibilities which the licensee knows or has

27  reason to know that she or he is not competent to perform.

28         (w)  Delegating professional responsibilities to a

29  person when the licensee delegating such responsibilities

30  knows or has reason to know that such person is not qualified

31  by training, experience, or licensure to perform them.


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                                          HB 1867, First Engrossed



  1         (x)  Violating any provision of this chapter, any rule

  2  of the department, or a lawful order of the department

  3  previously entered in a disciplinary hearing or failing to

  4  comply with a lawfully issued subpoena of the department.

  5         (y)  Conspiring with another licensee or with any other

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

  7  tend to coerce, intimidate, or preclude another licensee from

  8  lawfully advertising her or his services.

  9         (z)  Procuring, or aiding or abetting in the procuring

10  of, an unlawful termination of pregnancy.

11         (aa)  Presigning blank prescription forms.

12         (bb)  Prescribing by the naturopathic physician for

13  office use any medicinal drug appearing on Schedule II in

14  chapter 893.

15         (cc)  Prescribing, ordering, dispensing, administering,

16  supplying, selling, or giving any drug which is an amphetamine

17  or sympathomimetic amine drug, or a compound designated

18  pursuant to chapter 893 as a Schedule II controlled substance

19  to or for any person except for:

20         1.  The treatment of narcolepsy; hyperkinesis;

21  behavioral syndrome in children characterized by the

22  developmentally inappropriate symptoms of moderate to severe

23  distractability, short attention span, hyperactivity,

24  emotional lability, and impulsivity; or drug-induced brain

25  dysfunction.

26         2.  The differential diagnostic psychiatric evaluation

27  of depression or the treatment of depression shown to be

28  refractory to other therapeutic modalities.

29         3.  The clinical investigation of the effects of such

30  drugs or compounds when an investigative protocol therefor is

31  


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                                          HB 1867, First Engrossed



  1  submitted to, reviewed, and approved by the department before

  2  such investigation is begun.

  3         (dd)  Prescribing, ordering, dispensing, administering,

  4  supplying, selling, or giving growth hormones, testosterone or

  5  its analogs, human chorionic gonadotropin (HCG), or other

  6  hormones for the purpose of muscle building or to enhance

  7  athletic performance. For the purposes of this subsection, the

  8  term "muscle building" does not include the treatment of

  9  injured muscle.  A prescription written for the drug products

10  listed above may be dispensed by the pharmacist with the

11  presumption that the prescription is for legitimate medical

12  use.

13         (ee)  Violating any provision of this chapter or

14  chapter 456, or any rules adopted pursuant thereto.

15         (2)  The department may enter an order denying

16  licensure or imposing any of the penalties in s. 456.072(2)

17  against any applicant for licensure or licensee who is found

18  guilty of violating any provision of subsection (1) of this

19  section or who is found guilty of violating any provision of

20  s. 456.072(1). When the department finds any person guilty of

21  any of the grounds set forth in subsection (1), it may enter

22  an order imposing one or more of the following penalties:

23         (a)  Refusal to certify to the department an

24  application for licensure.

25         (b)  Revocation or suspension of a license.

26         (c)  Restriction of practice.

27         (d)  Imposition of an administrative fine not to exceed

28  $1,000 for each count or separate offense.

29         (e)  Issuance of a reprimand.

30         (f)  Placement of the naturopathic physician on

31  probation for a period of time and subject to such conditions


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                                          HB 1867, First Engrossed



  1  as the department may specify, including, but not limited to,

  2  requiring the naturopathic physician to submit to treatment,

  3  to attend continuing education courses, to submit to

  4  reexamination, or to work under the supervision of another

  5  naturopathic physician.

  6         Section 29.  Subsections (1) and (2) of section

  7  463.016, Florida Statutes, are amended to read:

  8         463.016  Grounds for disciplinary action; action by the

  9  board.--

10         (1)  The following acts shall constitute grounds for

11  denial of a license or disciplinary action, as specified in s.

12  456.072(2) which the disciplinary actions specified in

13  subsection (2) may be taken:

14         (a)  Procuring or attempting to procure a license to

15  practice optometry by bribery, by fraudulent

16  misrepresentations, or through an error of the department or

17  board.

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

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

20  representation.

21         (c)  Having a license to practice optometry revoked,

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

23  licensure, by the licensing authority of another jurisdiction.

24         (d)  Being convicted or found guilty, regardless of

25  adjudication, of a crime in any jurisdiction which directly

26  relates to the practice of optometry or to the ability to

27  practice optometry.  Any plea of nolo contendere shall be

28  considered a conviction for the purposes of this chapter.

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

30  licensee knows to be false, intentionally or negligently

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


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                                          HB 1867, First Engrossed



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

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

  3  shall include only those which are signed by the licensee in

  4  her or his capacity as a licensed practitioner.

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

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

  7  content.

  8         (g)  Fraud or deceit, negligence or incompetency, or

  9  misconduct in the practice of optometry.

10         (h)  A violation or repeated violations of provisions

11  of this chapter, or of chapter 456, and any rules promulgated

12  pursuant thereto.

13         (i)  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         (j)  Willfully submitting to any third-party payor a

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

19         (k)  Failing to keep written optometric records about

20  the examinations, treatments, and prescriptions for patients.

21         (l)  Willfully failing to report any person who the

22  licensee knows is in violation of this chapter or of rules of

23  the department or the board.

24         (m)  Gross or repeated malpractice.

25         (n)  Practicing with a revoked, suspended, inactive, or

26  delinquent license.

27         (o)  Being unable to practice optometry with reasonable

28  skill and safety to patients by reason of illness or use of

29  alcohol, drugs, narcotics, chemicals, or any other type of

30  material or as a result of any mental or physical condition.

31  A licensed practitioner affected under this paragraph shall at


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                                          HB 1867, First Engrossed



  1  reasonable intervals be afforded an opportunity to demonstrate

  2  that she or he can resume the competent practice of optometry

  3  with reasonable skill and safety to patients.

  4         (p)  Having been disciplined by a regulatory agency in

  5  another state for any offense that would constitute a

  6  violation of Florida laws or rules regulating optometry.

  7         (q)  Violating any provision of s. 463.014 or s.

  8  463.015.

  9         (r)  Violating any lawful order of the board or

10  department, previously entered in a disciplinary hearing, or

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

12  or department.

13         (s)  Practicing or offering to practice beyond the

14  scope permitted by law or accepting and performing

15  professional responsibilities which the licensed practitioner

16  knows or has reason to know she or he is not competent to

17  perform.

18         (t)  Violating any provision of this chapter or chapter

19  456, or any rules adopted pursuant thereto.

20         (2)  The department may enter an order imposing any of

21  the penalties in s. 456.072(2) against any licensee who is

22  found guilty of violating any provision of subsection (1) of

23  this section or who is found guilty of violating any provision

24  of s. 456.072(1). When the board finds any person guilty of

25  any of the grounds set forth in subsection (1), it may enter

26  an order imposing one or more of the following penalties:

27         (a)  Refusal to certify to the department an

28  application for licensure.

29         (b)  Revocation or suspension of a license.

30         (c)  Imposition of an administrative fine not to exceed

31  $5,000 for each count or separate offense.


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                                          HB 1867, First Engrossed



  1         (d)  Issuance of a reprimand.

  2         (e)  Placement of the licensed practitioner on

  3  probation for a period of time and subject to such conditions

  4  as the board may specify, including requiring the licensed

  5  practitioner to submit to treatment, to attend continuing

  6  education courses, or to work under the supervision of another

  7  licensed practitioner.

  8         Section 30.  Subsections (1) and (2) of section

  9  464.018, Florida Statutes, are amended to read:

10         464.018  Disciplinary actions.--

11         (1)  The following acts constitute shall be grounds for

12  denial of a license or disciplinary action, as specified in s.

13  456.072(2) disciplinary action set forth in this section:

14         (a)  Procuring, attempting to procure, or renewing a

15  license to practice nursing by bribery, by knowing

16  misrepresentations, or through an error of the department or

17  the board.

18         (b)  Having a license to practice nursing revoked,

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

20  licensure, by the licensing authority of another state,

21  territory, or country.

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

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

24  crime in any jurisdiction which directly relates to the

25  practice of nursing or to the ability to practice nursing.

26         (d)  Being found guilty, regardless of adjudication, of

27  any of the following offenses:

28         1.  A forcible felony as defined in chapter 776.

29         2.  A violation of chapter 812, relating to theft,

30  robbery, and related crimes.

31  


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                                          HB 1867, First Engrossed



  1         3.  A violation of chapter 817, relating to fraudulent

  2  practices.

  3         4.  A violation of chapter 800, relating to lewdness

  4  and indecent exposure.

  5         5.  A violation of chapter 784, relating to assault,

  6  battery, and culpable negligence.

  7         6.  A violation of chapter 827, relating to child

  8  abuse.

  9         7.  A violation of chapter 415, relating to protection

10  from abuse, neglect, and exploitation.

11         8.  A violation of chapter 39, relating to child abuse,

12  abandonment, and neglect.

13         (e)  Having been found guilty of, regardless of

14  adjudication, or entered a plea of nolo contendere or guilty

15  to, any offense prohibited under s. 435.03 or under any

16  similar statute of another jurisdiction; or having committed

17  an act which constitutes domestic violence as defined in s.

18  741.28.

19         (f)  Making or filing a false report or record, which

20  the licensee knows to be false, intentionally or negligently

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

22  federal 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 are signed in the nurse's

25  capacity as a licensed nurse.

26         (g)  False, misleading, or deceptive advertising.

27         (h)  Unprofessional conduct, which shall include, but

28  not be limited to, any departure from, or the failure to

29  conform to, the minimal standards of acceptable and prevailing

30  nursing practice, in which case actual injury need not be

31  established.


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  1         (i)  Engaging or attempting to engage in the

  2  possession, sale, or distribution of controlled substances as

  3  set forth in chapter 893, for any other than legitimate

  4  purposes authorized by this part.

  5         (j)  Being unable to practice nursing with reasonable

  6  skill and safety to patients by reason of illness or use of

  7  alcohol, drugs, narcotics, or chemicals or any other type of

  8  material or as a result of any mental or physical condition.

  9  In enforcing this paragraph, the department shall have, upon a

10  finding of the secretary or the secretary's designee that

11  probable cause exists to believe that the licensee is unable

12  to practice nursing because of the reasons stated in this

13  paragraph, the authority to issue an order to compel a

14  licensee to submit to a mental or physical examination by

15  physicians designated by the department.  If the licensee

16  refuses to comply with such order, the department's order

17  directing such examination may be enforced by filing a

18  petition for enforcement in the circuit court where the

19  licensee resides or does business. The licensee against whom

20  the petition is filed shall not be named or identified by

21  initials in any public court records or documents, and the

22  proceedings shall be closed to the public. The department

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

24  51.011. A nurse affected by the provisions of this paragraph

25  shall at reasonable intervals be afforded an opportunity to

26  demonstrate that she or he can resume the competent practice

27  of nursing with reasonable skill and safety to patients.

28         (k)  Failing to report to the department any person who

29  the licensee knows is in violation of this part or of the

30  rules of the department or the board; however, if the licensee

31  verifies that such person is actively participating in a


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  1  board-approved program for the treatment of a physical or

  2  mental condition, the licensee is required to report such

  3  person only to an impaired professionals consultant.

  4         (l)  Knowingly violating any provision of this part, a

  5  rule of the board or the department, or a lawful order of the

  6  board or department previously entered in a disciplinary

  7  proceeding or failing to comply with a lawfully issued

  8  subpoena of the department.

  9         (m)  Failing to report to the department any licensee

10  under chapter 458 or under chapter 459 who the nurse knows has

11  violated the grounds for disciplinary action set out in the

12  law under which that person is licensed and who provides

13  health care services in a facility licensed under chapter 395,

14  or a health maintenance organization certificated under part I

15  of chapter 641, in which the nurse also provides services.

16         (n)  Violating any provision of this chapter or chapter

17  456, or any rules adopted pursuant thereto.

18         (2)  The board may enter an order denying licensure or

19  imposing any of the penalties in s. 456.072(2) against any

20  applicant for licensure or licensee who is found guilty of

21  violating any provision of subsection (1) of this section or

22  who is found guilty of violating any provision of s.

23  456.072(1). When the board finds any person guilty of any of

24  the grounds set forth in subsection (1), it may enter an order

25  imposing one or more of the following penalties:

26         (a)  Refusal to certify to the department an

27  application for licensure.

28         (b)  Revocation or suspension of a license with

29  reinstatement subject to the provisions of subsection (3).

30         (c)  Permanent revocation of a license.

31         (d)  Restriction of practice.


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  1         (e)  Imposition of an administrative fine not to exceed

  2  $1,000 for each count or separate offense.

  3         (f)  Issuance of a reprimand.

  4         (g)  Placement of the nurse on probation for a period

  5  of time and subject to such conditions as the board may

  6  specify, including requiring the nurse to submit to treatment,

  7  to attend continuing education courses, to take an

  8  examination, or to work under the supervision of another

  9  nurse.

10         Section 31.  Subsection (3) of section 465.008, Florida

11  Statutes, is amended to read:

12         465.008  Renewal of license.--

13         (3)  Sixty days prior to the end of the biennium the

14  department shall mail a notice of renewal to the last known

15  address of the licensee.

16         Section 32.  Subsections (1) and (2) of section

17  465.016, Florida Statutes, are amended to read:

18         465.016  Disciplinary actions.--

19         (1)  The following acts constitute shall be grounds for

20  denial of a license or disciplinary action, as specified in s.

21  456.072(2) disciplinary action set forth in this section:

22         (a)  Obtaining a license by misrepresentation or fraud

23  or through an error of the department or the board.

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

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

26  representation.

27         (c)  Permitting any person not licensed as a pharmacist

28  in this state or not registered as an intern in this state, or

29  permitting a registered intern who is not acting under the

30  direct and immediate personal supervision of a licensed

31  pharmacist, to fill, compound, or dispense any prescriptions


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  1  in a pharmacy owned and operated by such pharmacist or in a

  2  pharmacy where such pharmacist is employed or on duty.

  3         (d)  Being unfit or incompetent to practice pharmacy by

  4  reason of:

  5         1.  Habitual intoxication.

  6         2.  The misuse or abuse of any medicinal drug appearing

  7  in any schedule set forth in chapter 893.

  8         3.  Any abnormal physical or mental condition which

  9  threatens the safety of persons to whom she or he might sell

10  or dispense prescriptions, drugs, or medical supplies or for

11  whom she or he might manufacture, prepare, or package, or

12  supervise the manufacturing, preparation, or packaging of,

13  prescriptions, drugs, or medical supplies.

14         (e)  Violating any of the requirements of this chapter;

15  or if licensed as a practitioner in this or any other state,

16  violating any of the requirements of their respective practice

17  act or violating chapter 499; 21 U.S.C. ss. 301-392, known as

18  the Federal Food, Drug, and Cosmetic Act; 21 U.S.C. ss. 821 et

19  seq., known as the Comprehensive Drug Abuse Prevention and

20  Control Act; or chapter 893.

21         (f)  Having been convicted or found guilty, regardless

22  of adjudication, in a court of this state or other

23  jurisdiction, of a crime which directly relates to the ability

24  to practice pharmacy or to the practice of pharmacy.  A plea

25  of nolo contendere constitutes a conviction for purposes of

26  this provision.

27         (g)  Using in the compounding of a prescription, or

28  furnishing upon prescription, an ingredient or article

29  different in any manner from the ingredient or article

30  prescribed, except as authorized in s. 465.019(6) or s.

31  465.025.


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  1         (h)  Having been disciplined by a regulatory agency in

  2  another state for any offense that would constitute a

  3  violation of this chapter.

  4         (i)  Compounding, dispensing, or distributing a legend

  5  drug, including any controlled substance, other than in the

  6  course of the professional practice of pharmacy.  For purposes

  7  of this paragraph, it shall be legally presumed that the

  8  compounding, dispensing, or distributing of legend drugs in

  9  excessive or inappropriate quantities is not in the best

10  interests of the patient and is not in the course of the

11  professional practice of pharmacy.

12         (j)  Making or filing a report or record which the

13  licensee knows to be false, intentionally or negligently

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

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

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

17  include only those which the licensee is required to make or

18  file in her or his capacity as a licensed pharmacist.

19         (k)  Failing to make prescription fee or price

20  information readily available by failing to provide such

21  information upon request and upon the presentation of a

22  prescription for pricing or dispensing.  Nothing in this

23  section shall be construed to prohibit the quotation of price

24  information on a prescription drug to a potential consumer by

25  telephone.

26         (l)  Placing in the stock of any pharmacy any part of

27  any prescription compounded or dispensed which is returned by

28  a patient; however, in a hospital, nursing home, correctional

29  facility, or extended care facility in which unit-dose

30  medication is dispensed to inpatients, each dose being

31  individually sealed and the individual unit dose or unit-dose


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                                          HB 1867, First Engrossed



  1  system labeled with the name of the drug, dosage strength,

  2  manufacturer's control number, and expiration date, if any,

  3  the unused unit dose of medication may be returned to the

  4  pharmacy for redispensing.  Each pharmacist shall maintain

  5  appropriate records for any unused or returned medicinal

  6  drugs.

  7         (m)  Being unable to practice pharmacy with reasonable

  8  skill and safety by reason of illness, use of drugs,

  9  narcotics, chemicals, or any other type of material or as a

10  result of any mental or physical condition.  A pharmacist

11  affected under this paragraph shall at reasonable intervals be

12  afforded an opportunity to demonstrate that she or he can

13  resume the competent practice of pharmacy with reasonable

14  skill and safety to her or his customers.

15         (n)  Violating a rule of the board or department or

16  violating an order of the board or department previously

17  entered in a disciplinary hearing.

18         (o)  Failing to report to the department any licensee

19  under chapter 458 or under chapter 459 who the pharmacist

20  knows has violated the grounds for disciplinary action set out

21  in the law under which that person is licensed and who

22  provides health care services in a facility licensed under

23  chapter 395, or a health maintenance organization certificated

24  under part I of chapter 641, in which the pharmacist also

25  provides services.

26         (p)  Failing to notify the Board of Pharmacy in writing

27  within 20 days of the commencement or cessation of the

28  practice of the profession of pharmacy in Florida when such

29  commencement or cessation of the practice of the profession of

30  pharmacy in Florida was a result of a pending or completed

31  disciplinary action or investigation in another jurisdiction.


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  1         (q)  Using or releasing a patient's records except as

  2  authorized by this chapter and chapter 456.

  3         (r)  Violating any provision of this chapter or chapter

  4  456, or any rules adopted pursuant thereto.

  5         (2)  The board may enter an order denying licensure or

  6  imposing any of the penalties in s. 456.072(2) against any

  7  applicant for licensure or licensee who is found guilty of

  8  violating any provision of subsection (1) of this section or

  9  who is found guilty of violating any provision of s.

10  456.072(1). When the board finds any person guilty of any of

11  the grounds set forth in subsection (1), it may enter an order

12  imposing one or more of the following penalties:

13         (a)  Refusal to certify to the department an

14  application for licensure.

15         (b)  Revocation or suspension of a license.

16         (c)  Imposition of an administrative fine not to exceed

17  $5,000 for each count or separate offense.

18         (d)  Issuance of a reprimand.

19         (e)  Placement of the pharmacist on probation for a

20  period of time and subject to such conditions as the board may

21  specify, including, but not limited to, requiring the

22  pharmacist to submit to treatment, to attend continuing

23  education courses, to submit to reexamination, or to work

24  under the supervision of another pharmacist.

25         Section 33.  Subsections (1) and (2) of section

26  466.028, Florida Statutes, are amended to read:

27         466.028  Grounds for disciplinary action; action by the

28  board.--

29         (1)  The following acts shall constitute grounds for

30  denial of a license or disciplinary action, as specified in s.

31  


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                                          HB 1867, First Engrossed



  1  456.072(2) which the disciplinary actions specified in

  2  subsection (2) may be taken:

  3         (a)  Attempting to obtain, obtaining, or renewing a

  4  license under this chapter by bribery, fraudulent

  5  misrepresentations, or through an error of the department or

  6  the board.

  7         (b)  Having a license to practice dentistry or dental

  8  hygiene revoked, suspended, or otherwise acted against,

  9  including the denial of licensure, by the licensing authority

10  of another state, territory, or country.

11         (c)  Being convicted or found guilty of or entering a

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

13  crime in any jurisdiction which relates to the practice of

14  dentistry or dental hygiene.  A plea of nolo contendere shall

15  create a rebuttable presumption of guilt to the underlying

16  criminal charges.

17         (d)  Advertising goods or services in a manner which is

18  fraudulent, false, deceptive, or misleading in form or content

19  contrary to s. 466.019 or rules of the board adopted pursuant

20  thereto.

21         (e)  Advertising, practicing, or attempting to practice

22  under a name other than one's own.

23         (f)  Failing to report to the department any person who

24  the licensee knows, or has reason to believe, is clearly in

25  violation of this chapter or of the rules of the department or

26  the board.

27         (g)  Aiding, assisting, procuring, or advising any

28  unlicensed person to practice dentistry or dental hygiene

29  contrary to this chapter or to a rule of the department or the

30  board.

31  


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  1         (h)  Being employed by any corporation, organization,

  2  group, or person other than a dentist or a professional

  3  corporation or limited liability company composed of dentists

  4  to practice dentistry.

  5         (i)  Failing to perform any statutory or legal

  6  obligation placed upon a licensee.

  7         (j)  Making or filing a report which the licensee knows

  8  to be false, failing to file a report or record required by

  9  state or federal law, knowingly impeding or obstructing such

10  filing or inducing another person to do so.  Such reports or

11  records shall include only those which are signed in the

12  capacity as a licensee.

13         (k)  Committing any act which would constitute sexual

14  battery, as defined in chapter 794, upon a patient or

15  intentionally touching the sexual organ of a patient.

16         (l)  Making deceptive, untrue, or fraudulent

17  representations in or related to the practice of dentistry.

18         (m)  Failing to keep written dental records and medical

19  history records justifying the course of treatment of the

20  patient including, but not limited to, patient histories,

21  examination results, test results, and X rays, if taken.

22         (n)  Failing to make available to a patient or client,

23  or to her or his legal representative or to the department if

24  authorized in writing by the patient, copies of documents in

25  the possession or under control of the licensee which relate

26  to the patient or client.

27         (o)  Performing professional services which have not

28  been duly authorized by the patient or client, or her or his

29  legal representative, except as provided in ss. 766.103 and

30  768.13.

31  


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                                          HB 1867, First Engrossed



  1         (p)  Prescribing, procuring, dispensing, administering,

  2  mixing, or otherwise preparing a legend drug, including any

  3  controlled substance, other than in the course of the

  4  professional practice of the dentist.  For the purposes of

  5  this paragraph, it shall be legally presumed that prescribing,

  6  procuring, dispensing, administering, mixing, or otherwise

  7  preparing legend drugs, including all controlled substances,

  8  in excessive or inappropriate quantities is not in the best

  9  interest of the patient and is not in the course of the

10  professional practice of the dentist, without regard to her or

11  his intent.

12         (q)  Prescribing, procuring, dispensing, or

13  administering any medicinal drug appearing on any schedule set

14  forth in chapter 893, by a dentist to herself or himself,

15  except those prescribed, dispensed, or administered to the

16  dentist by another practitioner authorized to prescribe them.

17         (r)  Prescribing, procuring, ordering, dispensing,

18  administering, supplying, selling, or giving any drug which is

19  a Schedule II amphetamine or a Schedule II sympathomimetic

20  amine drug or a compound thereof, pursuant to chapter 893, to

21  or for any person except for the clinical investigation of the

22  effects of such drugs or compounds when an investigative

23  protocol therefor is submitted to, and reviewed and approved

24  by, the board before such investigation is begun.

25         (s)  Being unable to practice her or his profession

26  with reasonable skill and safety to patients by reason of

27  illness or use of alcohol, drugs, narcotics, chemicals, or any

28  other type of material or as a result of any mental or

29  physical condition.  In enforcing this paragraph, the

30  department shall have, upon a finding of the secretary or her

31  or his designee that probable cause exists to believe that the


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                                          HB 1867, First Engrossed



  1  licensee is unable to practice dentistry or dental hygiene

  2  because of the reasons stated in this paragraph, the authority

  3  to issue an order to compel a licensee to submit to a mental

  4  or physical examination by physicians designated by the

  5  department.  If the licensee refuses to comply with such

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

  7  be enforced by filing a petition for enforcement in the

  8  circuit court where the licensee resides or does business.

  9  The licensee against whom the petition is filed shall not be

10  named or identified by initials in any public court records or

11  documents, and the proceedings shall be closed to the public.

12  The department shall be entitled to the summary procedure

13  provided in s. 51.011. A licensee affected under this

14  paragraph shall at reasonable intervals be afforded an

15  opportunity to demonstrate that she or he can resume the

16  competent practice of her or his profession with reasonable

17  skill and safety to patients.

18         (t)  Fraud, deceit, or misconduct in the practice of

19  dentistry or dental hygiene.

20         (u)  Failure to provide and maintain reasonable

21  sanitary facilities and conditions.

22         (v)  Failure to provide adequate radiation safeguards.

23         (w)  Performing any procedure or prescribing any

24  therapy which, by the prevailing standards of dental practice

25  in the community, would constitute experimentation on human

26  subjects, without first obtaining full, informed, and written

27  consent.

28         (x)  Being guilty of incompetence or negligence by

29  failing to meet the minimum standards of performance in

30  diagnosis and treatment when measured against generally

31  prevailing peer performance, including, but not limited to,


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                                          HB 1867, First Engrossed



  1  the undertaking of diagnosis and treatment for which the

  2  dentist is not qualified by training or experience or being

  3  guilty of dental malpractice. For purposes of this paragraph,

  4  it shall be legally presumed that a dentist is not guilty of

  5  incompetence or negligence by declining to treat an individual

  6  if, in the dentist's professional judgment, the dentist or a

  7  member of her or his clinical staff is not qualified by

  8  training and experience, or the dentist's treatment facility

  9  is not clinically satisfactory or properly equipped to treat

10  the unique characteristics and health status of the dental

11  patient, provided the dentist refers the patient to a

12  qualified dentist or facility for appropriate treatment.  As

13  used in this paragraph, "dental malpractice" includes, but is

14  not limited to, three or more claims within the previous

15  5-year period which resulted in indemnity being paid, or any

16  single indemnity paid in excess of $5,000 in a judgment or

17  settlement, as a result of negligent conduct on the part of

18  the dentist.

19         (y)  Practicing or offering to practice beyond the

20  scope permitted by law or accepting and performing

21  professional responsibilities which the licensee knows or has

22  reason to know that she or he is not competent to perform.

23         (z)  Delegating professional responsibilities to a

24  person who is not qualified by training, experience, or

25  licensure to perform them.

26         (aa)  The violation or the repeated violation of this

27  chapter, chapter 456, or any rule promulgated pursuant to

28  chapter 456 or this chapter; the violation of a lawful order

29  of the board or department previously entered in a

30  disciplinary hearing; or failure to comply with a lawfully

31  issued subpoena of the board or department.


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                                          HB 1867, First Engrossed



  1         (bb)  Conspiring with another licensee or with any

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

  3  tend to coerce, intimidate, or preclude another licensee from

  4  lawfully advertising her or his services.

  5         (cc)  Being adjudged mentally incompetent in this or

  6  any other state, the discipline for which shall last only so

  7  long as the adjudication.

  8         (dd)  Presigning blank prescription or laboratory work

  9  order forms.

10         (ee)  Prescribing, ordering, dispensing, administering,

11  supplying, selling, or giving growth hormones, testosterone or

12  its analogs, human chorionic gonadotropin (HCG), or other

13  hormones for the purpose of muscle building or to enhance

14  athletic performance. For the purposes of this subsection, the

15  term "muscle building" does not include the treatment of

16  injured muscle.  A prescription written for the drug products

17  listed above may be dispensed by the pharmacist with the

18  presumption that the prescription is for legitimate medical

19  use.

20         (ff)  Operating or causing to be operated a dental

21  office in such a manner as to result in dental treatment that

22  is below minimum acceptable standards of performance for the

23  community. This includes, but is not limited to, the use of

24  substandard materials or equipment, the imposition of time

25  limitations within which dental procedures are to be

26  performed, or the failure to maintain patient records as

27  required by this chapter.

28         (gg)  Administering anesthesia in a manner which

29  violates rules of the board adopted pursuant to s. 466.017.

30         (hh)  Failing to report to the department any licensee

31  under chapter 458 or chapter 459 who the dentist knows has


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  1  violated the grounds for disciplinary action set out in the

  2  law under which that person is licensed and who provides

  3  health care services in a facility licensed under chapter 395,

  4  or a health maintenance organization certificated under part I

  5  of chapter 641, in which the dentist also provides services.

  6         (ii)  Failing to report to the board, in writing,

  7  within 30 days if action has been taken against one's license

  8  to practice dentistry in another state, territory, or country.

  9         (jj)  Advertising specialty services in violation of

10  this chapter.

11         (kk)  Allowing any person other than another dentist or

12  a professional corporation or limited liability company

13  composed of dentists to direct, control, or interfere with a

14  dentist's clinical judgment; however, this paragraph may not

15  be construed to limit a patient's right of informed consent.

16  To direct, control, or interfere with a dentist's clinical

17  judgment may not be interpreted to mean dental services

18  contractually excluded, the application of alternative

19  benefits that may be appropriate given the dentist's

20  prescribed course of treatment, or the application of

21  contractual provisions and scope of coverage determinations in

22  comparison with a dentist's prescribed treatment on behalf of

23  a covered person by an insurer, health maintenance

24  organization, or a prepaid limited health service

25  organization.

26         (ll)  Violating any provision of this chapter or

27  chapter 456, or any rules adopted pursuant thereto.

28         (2)  The board may enter an order denying licensure or

29  imposing any of the penalties in s. 456.072(2) against any

30  applicant for licensure or licensee who is found guilty of

31  violating any provision of subsection (1) of this section or


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  1  who is found guilty of violating any provision of s.

  2  456.072(1). When the board finds any applicant or licensee

  3  guilty of any of the grounds set forth in subsection (1), it

  4  may enter an order imposing one or more of the following

  5  penalties:

  6         (a)  Denial of an application for licensure.

  7         (b)  Revocation or suspension of a license.

  8         (c)  Imposition of an administrative fine not to exceed

  9  $3,000 for each count or separate offense.

10         (d)  Issuance of a reprimand.

11         (e)  Placement of the licensee on probation for a

12  period of time and subject to such conditions as the board may

13  specify, including requiring the licensee to attend continuing

14  education courses or demonstrate competency through a written

15  or practical examination or to work under the supervision of

16  another licensee.

17         (f)  Restricting the authorized scope of practice.

18         Section 34.  Section 466.037, Florida Statutes, is

19  amended to read:

20         466.037  Suspension and revocation; administrative

21  fine.--The department may suspend or revoke the certificate of

22  any dental laboratory registered under s. 466.032, for failing

23  to comply with the provisions of this chapter or rules adopted

24  by the department under this chapter.  The department may

25  impose an administrative fine not to exceed $500 for each

26  count or separate offense.

27         Section 35.  Subsections (1) and (2) of section

28  467.203, Florida Statutes, are amended to read:

29         467.203  Disciplinary actions; penalties.--

30  

31  


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  1         (1)  The following acts constitute shall be grounds for

  2  denial of a license or disciplinary action, as specified in s.

  3  456.072(2) disciplinary action as set forth in this section:

  4         (a)  Procuring, attempting to procure, or renewing a

  5  license to practice midwifery by bribery, by fraudulent

  6  misrepresentation, or through an error of the department.

  7         (b)  Having a license to practice midwifery revoked,

  8  suspended, or otherwise acted against, including being denied

  9  licensure, by the licensing authority of another state,

10  territory, or country.

11         (c)  Being convicted or found guilty, regardless of

12  adjudication, in any jurisdiction of a crime which directly

13  relates to the practice of midwifery or to the ability to

14  practice midwifery.  A plea of nolo contendere shall be

15  considered a conviction for purposes of this provision.

16         (d)  Making or filing a false report or record, which

17  the licensee knows to be false; intentionally or negligently

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

19  federal law; or willfully impeding or obstructing such filing

20  or inducing another to do so.  Such reports or records shall

21  include only those which are signed in the midwife's capacity

22  as a licensed midwife.

23         (e)  Advertising falsely, misleadingly, or deceptively.

24         (f)  Engaging in unprofessional conduct, which

25  includes, but is not limited to, any departure from, or the

26  failure to conform to, the standards of practice of midwifery

27  as established by the department, in which case actual injury

28  need not be established.

29         (g)  Being unable to practice midwifery with reasonable

30  skill and safety to patients by reason of illness;

31  drunkenness; or use of drugs, narcotics, chemicals, or other


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                                          HB 1867, First Engrossed



  1  materials or as a result of any mental or physical condition.

  2  A midwife affected under this paragraph shall, at reasonable

  3  intervals, be afforded an opportunity to demonstrate that he

  4  or she can resume the competent practice of midwifery with

  5  reasonable skill and safety.

  6         (h)  Failing to report to the department any person who

  7  the licensee knows is in violation of this chapter or of the

  8  rules of the department.

  9         (i)  Willfully or repeatedly Violating any provision of

10  this chapter, any rule of the department, or any lawful order

11  of the department previously entered in a disciplinary

12  proceeding or failing to comply with a lawfully issued

13  subpoena of the department.

14         (j)  Violating any provision of this chapter or chapter

15  456, or any rules adopted pursuant thereto.

16         (2)  The department may enter an order denying

17  licensure or imposing any of the penalties in s. 456.072(2)

18  against any applicant for licensure or licensee who is found

19  guilty of violating any provision of subsection (1) of this

20  section or who is found guilty of violating any provision of

21  s. 456.072(1). When the department finds any person guilty of

22  any of the grounds set forth in subsection (1), it may enter

23  an order imposing one or more of the following penalties:

24         (a)  Refusal to approve an application for licensure.

25         (b)  Revocation or suspension of a license.

26         (c)  Imposition of an administrative fine not to exceed

27  $1,000 for each count or separate offense.

28         (d)  Issuance of a reprimand.

29         (e)  Placement of the midwife on probation for such

30  period of time and subject to such conditions as the

31  department may specify, including requiring the midwife to


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  1  submit to treatment; undertake further relevant education or

  2  training; take an examination; or work under the supervision

  3  of another licensed midwife, a physician, or a nurse midwife

  4  licensed under part I of chapter 464.

  5         Section 36.  Subsections (1) and (2) of section

  6  468.1295, Florida Statutes, are amended to read:

  7         468.1295  Disciplinary proceedings.--

  8         (1)  The following acts constitute grounds for denial

  9  of a license or disciplinary action, as specified in s.

10  456.072(2) both disciplinary actions as set forth in

11  subsection (2) and cease and desist or other related actions

12  by the department as set forth in s. 456.065:

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

14  bribery, by fraudulent misrepresentation, or through an error

15  of the department or the board.

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

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

18  authority of another state, territory, or country.

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

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

21  crime in any jurisdiction which directly relates to the

22  practice of speech-language pathology or audiology.

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

24  licensee knows to be false, intentionally or negligently

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

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

27  inducing another person to impede or obstruct such filing.

28  Such report or record shall include only those reports or

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

30  speech-language pathologist or audiologist.

31  


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

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

  3  content.

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

  5  negligence, incompetency, or misconduct in the practice of

  6  speech-language pathology or audiology.

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

  8  department previously entered in a disciplinary hearing, or

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

10  or department.

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

12  delinquent license.

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

14  advertising matter, promotional literature, testimonial,

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

16  representation, however disseminated or published, which is

17  misleading, deceiving, or untruthful.

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

19  delivery of a product unusable or impractical for the purpose

20  represented or implied by such action.

21         (k)  Failing 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 such equipment as designated by

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

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

26  advising any licensee or business entity to practice

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

28  chapter 456, or any rule adopted pursuant thereto.

29         (m)  Violating any provision of this part or chapter

30  456 or any rule adopted pursuant thereto.

31  


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  1         (m)(n)  Misrepresenting the professional services

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

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

  4  connote the availability of professional services when such

  5  use is not accurate.

  6         (n)(o)  Representing, advertising, or implying that a

  7  hearing aid or its repair is guaranteed without providing full

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

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

10  conditions or limitations imposed upon the guarantee.

11         (o)(p)  Representing, directly or by implication, that

12  a hearing aid utilizing bone conduction has certain specified

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

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

15  and conspicuously that the instrument operates on the bone

16  conduction principle and that in many cases of hearing loss

17  this type of instrument may not be suitable.

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

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

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

21  similar or opposite effect.

22         (q)(r)  Making any statement regarding the cure of the

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

24         (r)(s)  Representing or implying that a hearing aid is

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

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

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

28         (s)(t)  Canvassing from house to house or by telephone,

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

30  hearing aid, except that contacting persons who have evidenced

31  


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                                          HB 1867, First Engrossed



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

  2  of hearing aids, shall not be considered canvassing.

  3         (t)(u)  Failing to notify the department in writing of

  4  a change in current mailing and place-of-practice address

  5  within 30 days after such change.

  6         (u)(v)  Failing to provide all information as described

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

  8         (v)(w)  Exercising influence on a client in such a

  9  manner as to exploit the client for financial gain of the

10  licensee or of a third party.

11         (w)(x)  Practicing or offering to practice beyond the

12  scope permitted by law or accepting and performing

13  professional responsibilities the licensee or

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

15  or certificateholder is not competent to perform.

16         (x)(y)  Aiding, assisting, procuring, or employing any

17  unlicensed person to practice speech-language pathology or

18  audiology.

19         (y)(z)  Delegating or contracting for the performance

20  of professional responsibilities by a person when the licensee

21  delegating or contracting for performance of such

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

23  not qualified by training, experience, and authorization to

24  perform them.

25         (z)(aa)  Committing any act upon a patient or client

26  which would constitute sexual battery or which would

27  constitute sexual misconduct as defined pursuant to s.

28  468.1296.

29         (aa)(bb)  Being unable to practice the profession for

30  which he or she is licensed or certified under this chapter

31  with reasonable skill or competence as a result of any mental


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                                          HB 1867, First Engrossed



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

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

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

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

  5  believe that the licensee or certificateholder is unable to

  6  practice the profession because of the reasons stated in this

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

  8  licensee or certificateholder to submit to a mental or

  9  physical examination by a physician, psychologist, clinical

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

11  counselor designated by the department or board.  If the

12  licensee or certificateholder refuses to comply with the

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

14  be enforced by filing a petition for enforcement in the

15  circuit court in the circuit in which the licensee or

16  certificateholder resides or does business.  The department

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

18  51.011.  A licensee or certificateholder affected under this

19  paragraph shall at reasonable intervals be afforded an

20  opportunity to demonstrate that he or she can resume the

21  competent practice for which he or she is licensed or

22  certified with reasonable skill and safety to patients.

23         (bb)  Violating any provision of this chapter or

24  chapter 456, or any rules adopted pursuant thereto.

25         (2)  The board may enter an order denying licensure or

26  imposing any of the penalties in s. 456.072(2) against any

27  applicant for licensure or licensee who is found guilty of

28  violating any provision of subsection (1) of this section or

29  who is found guilty of violating any provision of s.

30  456.072(1). When the board finds any person guilty of any of

31  


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                                          HB 1867, First Engrossed



  1  the acts set forth in subsection (1), it may issue an order

  2  imposing one or more of the following penalties:

  3         (a)  Refusal to certify, or to certify with

  4  restrictions, an application for licensure.

  5         (b)  Suspension or permanent revocation of a license.

  6         (c)  Issuance of a reprimand.

  7         (d)  Restriction of the authorized scope of practice.

  8         (e)  Imposition of an administrative fine not to exceed

  9  $1,000 for each count or separate offense.

10         (f)  Placement of the licensee or certificateholder on

11  probation for a period of time and subject to such conditions

12  as the board may specify.  Those conditions may include, but

13  are not limited to, requiring the licensee or

14  certificateholder to undergo treatment, attend continuing

15  education courses, submit to be reexamined, work under the

16  supervision of another licensee, or satisfy any terms which

17  are reasonably tailored to the violation found.

18         (g)  Corrective action.

19         Section 37.  Subsections (1) and (2) of section

20  468.1755, Florida Statutes, are amended to read:

21         468.1755  Disciplinary proceedings.--

22         (1)  The following acts shall constitute grounds for

23  denial of a license or disciplinary action, as specified in s.

24  456.072(2) which the disciplinary actions in subsection (2)

25  may be taken:

26         (a)  Violation of any provision of s. 456.072(1) or s.

27  468.1745(1).

28         (b)  Attempting to procure a license to practice

29  nursing home administration by bribery, by fraudulent

30  misrepresentation, or through an error of the department or

31  the board.


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                                          HB 1867, First Engrossed



  1         (c)  Having a license to practice nursing home

  2  administration revoked, suspended, or otherwise acted against,

  3  including the denial of licensure, by the licensing authority

  4  of another state, territory, or country.

  5         (d)  Being convicted or found guilty, regardless of

  6  adjudication, of a crime in any jurisdiction which relates to

  7  the practice of nursing home administration or the ability to

  8  practice nursing home administration.  Any plea of nolo

  9  contendere shall be considered a conviction for purposes of

10  this part.

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

12  licensee knows to be false, intentionally failing to file a

13  report or record required by state or federal law, willfully

14  impeding or obstructing such filing, or inducing another

15  person to impede or obstruct such filing.  Such reports or

16  records shall include only those which are signed in the

17  capacity of a licensed nursing home administrator.

18         (f)  Authorizing the discharge or transfer of a

19  resident for a reason other than those provided in ss. 400.022

20  and 400.0255.

21         (g)  Advertising goods or services in a manner which is

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

23  content.

24         (h)  Fraud or deceit, negligence, incompetence, or

25  misconduct in the practice of nursing home administration.

26         (i)  A violation or repeated violations of this part,

27  chapter 456, or any rules promulgated pursuant thereto.

28         (i)(j)  Violation of a lawful order of the board or

29  department previously entered in a disciplinary hearing or

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

31  or department.


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                                          HB 1867, First Engrossed



  1         (j)(k)  Practicing with a revoked, suspended, inactive,

  2  or delinquent license.

  3         (k)(l)  Repeatedly acting in a manner inconsistent with

  4  the health, safety, or welfare of the patients of the facility

  5  in which he or she is the administrator.

  6         (l)(m)  Being unable to practice nursing home

  7  administration with reasonable skill and safety to patients by

  8  reason of illness, drunkenness, use of drugs, narcotics,

  9  chemicals, or any other material or substance or as a result

10  of any mental or physical condition.  In enforcing this

11  paragraph, upon a finding of the secretary or his or her

12  designee that probable cause exists to believe that the

13  licensee is unable to serve as a nursing home administrator

14  due to the reasons stated in this paragraph, the department

15  shall have the authority to issue an order to compel the

16  licensee to submit to a mental or physical examination by a

17  physician designated by the department. If the licensee

18  refuses to comply with such order, the department's order

19  directing such examination may be enforced by filing a

20  petition for enforcement in the circuit court where the

21  licensee resides or serves as a nursing home administrator.

22  The licensee against whom the petition is filed shall not be

23  named or identified by initials in any public court records or

24  documents, and the proceedings shall be closed to the public.

25  The department shall be entitled to the summary procedure

26  provided in s. 51.011.  A licensee affected under this

27  paragraph shall have the opportunity, at reasonable intervals,

28  to demonstrate that he or she can resume the competent

29  practice of nursing home administration with reasonable skill

30  and safety to patients.

31  


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                                          HB 1867, First Engrossed



  1         (m)(n)  Willfully or repeatedly violating any of the

  2  provisions of the law, code, or rules of the licensing or

  3  supervising authority or agency of the state or political

  4  subdivision thereof having jurisdiction of the operation and

  5  licensing of nursing homes.

  6         (n)(o)  Paying, giving, causing to be paid or given, or

  7  offering to pay or to give to any person a commission or other

  8  valuable consideration for the solicitation or procurement,

  9  either directly or indirectly, of nursing home usage.

10         (o)(p)  Willfully permitting unauthorized disclosure of

11  information relating to a patient or his or her records.

12         (p)(q)  Discriminating with respect to patients,

13  employees, or staff on account of race, religion, color, sex,

14  or national origin.

15         (q)  Violating any provision of this chapter or chapter

16  456, or any rules adopted pursuant thereto.

17         (2)  The board may enter an order denying licensure or

18  imposing any of the penalties in s. 456.072(2) against any

19  applicant for licensure or licensee who is found guilty of

20  violating any provision of subsection (1) of this section or

21  who is found guilty of violating any provision of s.

22  456.072(1). When the board finds any nursing home

23  administrator guilty of any of the grounds set forth in

24  subsection (1), it may enter an order imposing one or more of

25  the following penalties:

26         (a)  Denial of an application for licensure.

27         (b)  Revocation or suspension of a license.

28         (c)  Imposition of an administrative fine not to exceed

29  $1,000 for each count or separate offense.

30         (d)  Issuance of a reprimand.

31  


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                                          HB 1867, First Engrossed



  1         (e)  Placement of the licensee on probation for a

  2  period of time and subject to such conditions as the board may

  3  specify, including requiring the licensee to attend continuing

  4  education courses or to work under the supervision of another

  5  licensee.

  6         (f)  Restriction of the authorized scope of practice.

  7         Section 38.  Section 468.217, Florida Statutes, is

  8  amended to read:

  9         468.217  Denial of or refusal to renew license;

10  suspension and revocation of license and other disciplinary

11  measures.--

12         (1)  The following acts constitute grounds for denial

13  of a license or disciplinary action, as specified in s.

14  456.072(2) The board may deny or refuse to renew a license,

15  suspend or revoke a license, issue a reprimand, impose a fine,

16  or impose probationary conditions upon a licensee, when the

17  licensee or applicant for license has been guilty of

18  unprofessional conduct which has endangered, or is likely to

19  endanger, the health, welfare, or safety of the public.  Such

20  unprofessional conduct includes:

21         (a)  Attempting to obtain, obtaining, or renewing a

22  license to practice occupational therapy by bribery, by

23  fraudulent misrepresentation, or through an error of the

24  department or the board.

25         (b)  Having a license to practice occupational therapy

26  revoked, suspended, or otherwise acted against, including the

27  denial of licensure, by the licensing authority of another

28  state, territory, or country.

29         (c)  Being convicted or found guilty, regardless of

30  adjudication, of a crime in any jurisdiction which directly

31  relates to the practice of occupational therapy or to the


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                                          HB 1867, First Engrossed



  1  ability to practice occupational therapy.  A plea of nolo

  2  contendere shall be considered a conviction for the purposes

  3  of this part.

  4         (d)  False, deceptive, or misleading advertising.

  5         (e)  Advertising, practicing, or attempting to practice

  6  under a name other than one's own name.

  7         (f)  Failing to report to the department any person who

  8  the licensee knows is in violation of this part or of the

  9  rules of the department or of the board.

10         (g)  Aiding, assisting, procuring, or advising any

11  unlicensed person to practice occupational therapy contrary to

12  this part or to a rule of the department or the board.

13         (h)  Failing to perform any statutory or legal

14  obligation placed upon a licensed occupational therapist or

15  occupational therapy assistant.

16         (i)  Making or filing a report which the licensee knows

17  to be false, intentionally or negligently failing to file a

18  report or record required by state or federal law, willfully

19  impeding or obstructing such filing or inducing another person

20  to do so.  Such reports or records include only those which

21  are signed in the capacity as a licensed occupational

22  therapist or occupational therapy assistant.

23         (j)  Paying or receiving any commission, bonus,

24  kickback, or rebate to or from, or engaging in any split-fee

25  arrangement in any form whatsoever with, a physician,

26  organization, agency, or person, either directly or

27  indirectly, for patients referred to providers of health care

28  goods and services, including, but not limited to, hospitals,

29  nursing homes, clinical laboratories, ambulatory surgical

30  centers, or pharmacies.  The provisions of this paragraph

31  shall not be construed to prevent an occupational therapist or


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                                          HB 1867, First Engrossed



  1  occupational therapy assistant from receiving a fee for

  2  professional consultation services.

  3         (k)  Exercising influence within a patient-therapist

  4  relationship for purposes of engaging a patient in sexual

  5  activity. A patient is presumed to be incapable of giving

  6  free, full, and informed consent to sexual activity with the

  7  patient's occupational therapist or occupational therapy

  8  assistant.

  9         (l)  Making deceptive, untrue, or fraudulent

10  representations in the practice of occupational therapy or

11  employing a trick or scheme in the practice of occupational

12  therapy if such scheme or trick fails to conform to the

13  generally prevailing standards of treatment in the

14  occupational therapy community.

15         (m)  Soliciting patients, either personally or through

16  an agent, through the use of fraud, intimidation, undue

17  influence, or a form of overreaching or vexatious conduct.  A

18  "solicitation" is any communication which directly or

19  implicitly requests an immediate oral response from the

20  recipient.

21         (n)  Failing to keep written records justifying the

22  course of treatment of the patient, including, but not limited

23  to, patient histories, examination results, and test results.

24         (o)  Exercising influence on the patient or client in

25  such a manner as to exploit the patient or client for

26  financial gain of the licensee or of a third party which

27  includes, but is not limited to, the promoting or selling of

28  services, goods, appliances, or drugs.

29         (p)  Performing professional services which have not

30  been duly authorized by the patient or client, or his or her

31  legal representative, except as provided in s. 768.13.


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                                          HB 1867, First Engrossed



  1         (q)  Gross or repeated malpractice or the failure to

  2  practice occupational therapy with that level of care, skill,

  3  and treatment which is recognized by a reasonably prudent

  4  similar occupational therapist or occupational therapy

  5  assistant as being acceptable under similar conditions and

  6  circumstances.

  7         (r)  Performing any procedure which, by the prevailing

  8  standards of occupational therapy practice in the community,

  9  would constitute experimentation on a human subject without

10  first obtaining full, informed, and written consent.

11         (s)  Practicing or offering to practice beyond the

12  scope permitted by law or accepting and performing

13  professional responsibilities which the licensee knows or has

14  reason to know that he or she is not competent to perform.

15         (t)  Being unable to practice occupational therapy with

16  reasonable skill and safety to patients by reason of illness

17  or use of alcohol, drugs, narcotics, chemicals, or any other

18  type of material or as a result of any mental or physical

19  condition.  In enforcing this paragraph, the department shall

20  have, upon probable cause, authority to compel an occupational

21  therapist or occupational therapy assistant to submit to a

22  mental or physical examination by physicians designated by the

23  department.  The failure of an occupational therapist or

24  occupational therapy assistant to submit to such examination

25  when so directed constitutes an admission of the allegations

26  against him or her, upon which a default and final order may

27  be entered without the taking of testimony or presentation of

28  evidence, unless the failure was due to circumstances beyond

29  his or her control.  An occupational therapist or occupational

30  therapy assistant affected under this paragraph shall at

31  reasonable intervals be afforded an opportunity to demonstrate


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  1  that he or she can resume the competent practice of

  2  occupational therapy with reasonable skill and safety to

  3  patients. In any proceeding under this paragraph, neither the

  4  record of proceedings nor the orders entered by the board

  5  shall be used against an occupational therapist or

  6  occupational therapy assistant in any other proceeding.

  7         (u)  Delegating professional responsibilities to a

  8  person when the licensee who is delegating such

  9  responsibilities knows or has reason to know that such person

10  is not qualified by training, experience, or licensure to

11  perform them.

12         (v)  Violating any provision of this part, a rule of

13  the board or department, or a lawful order of the board or

14  department previously entered in a disciplinary hearing or

15  failing to comply with a lawfully issued subpoena of the

16  department.

17         (w)  Conspiring with another licensee or with any other

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

19  tend to coerce, intimidate, or preclude another licensee from

20  lawfully advertising his or her services.

21         (x)  Violating any provision of this chapter or chapter

22  456, or any rules adopted pursuant thereto.

23         (2)  The board may enter an order denying licensure or

24  imposing any of the penalties in s. 456.072(2) against any

25  applicant for licensure or licensee who is found guilty of

26  violating any provision of subsection (1) of this section or

27  who is found guilty of violating any provision of s.

28  456.072(1).

29         (3)(2)  The board may not reinstate the license of an

30  occupational therapist or occupational therapy assistant, or

31  cause a license to be issued to a person it has deemed


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                                          HB 1867, First Engrossed



  1  unqualified, until such time as the board is satisfied that

  2  such person has complied with all the terms and conditions set

  3  forth in the final order and is capable of safely engaging in

  4  the practice of occupational therapy.

  5         Section 39.  Subsections (1) and (2) of section

  6  468.365, Florida Statutes, are amended to read:

  7         468.365  Disciplinary grounds and actions.--

  8         (1)  The following acts constitute grounds for denial

  9  of a license or disciplinary action, as specified in s.

10  456.072(2) which the disciplinary actions in subsection (2)

11  may be taken:

12         (a)  Procuring, attempting to procure, or renewing a

13  license as provided by this part by bribery, by fraudulent

14  misrepresentation, or through an error of the department or

15  the board.

16         (b)  Having licensure, certification, registration, or

17  other authority, by whatever name known, to deliver

18  respiratory care services revoked, suspended, or otherwise

19  acted against, including the denial of licensure,

20  certification, registration, or other authority to deliver

21  respiratory care services by the licensing authority of

22  another state, territory, or country.

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

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

25  crime in any jurisdiction which directly relates to

26  respiratory care services or to the ability to deliver such

27  services.

28         (d)  Willfully making or filing a false report or

29  record, willfully failing to file a report or record required

30  by state or federal law, or willfully impeding or obstructing

31  such filing or inducing another person to do so.  Such reports


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                                          HB 1867, First Engrossed



  1  or records include only those reports or records which require

  2  the signature of a respiratory care practitioner or

  3  respiratory therapist licensed pursuant to this part.

  4         (e)  Circulating false, misleading, or deceptive

  5  advertising.

  6         (f)  Unprofessional conduct, which includes, but is not

  7  limited to, any departure from, or failure to conform to,

  8  acceptable standards related to the delivery of respiratory

  9  care services, as set forth by the board in rules adopted

10  pursuant to this part.

11         (g)  Engaging or attempting to engage in the

12  possession, sale, or distribution of controlled substances, as

13  set forth by law, for any purpose other than a legitimate

14  purpose.

15         (h)  Willfully failing to report any violation of this

16  part.

17         (i)  Willfully or repeatedly Violating a rule of the

18  board or the department or a lawful order of the board or

19  department previously entered in a disciplinary hearing.

20         (j)  Violation of any rule adopted pursuant to this

21  part or chapter 456.

22         (j)(k)  Engaging in the delivery of respiratory care

23  services with a revoked, suspended, or inactive license.

24         (k)(l)  Permitting, aiding, assisting, procuring, or

25  advising any person who is not licensed pursuant to this part,

26  contrary to this part or to any rule of the department or the

27  board.

28         (l)(m)  Failing to perform any statutory or legal

29  obligation placed upon a respiratory care practitioner or

30  respiratory therapist licensed pursuant to this part.

31  


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  1         (m)(n)  Accepting and performing professional

  2  responsibilities which the licensee knows, or has reason to

  3  know, she or he is not competent to perform.

  4         (n)(o)  Delegating professional responsibilities to a

  5  person when the licensee delegating such responsibilities

  6  knows, or has reason to know, that such person is not

  7  qualified by training, experience, or licensure to perform

  8  them.

  9         (o)(p)  Gross or repeated malpractice or the failure to

10  deliver respiratory care services with that level of care,

11  skill, and treatment which is recognized by a reasonably

12  prudent respiratory care practitioner or respiratory therapist

13  with similar professional training as being acceptable under

14  similar conditions and circumstances.

15         (p)(q)  Paying or receiving any commission, bonus,

16  kickback, or rebate to or from, or engaging in any split-fee

17  arrangement in any form whatsoever with, a person,

18  organization, or agency, either directly or indirectly, for

19  goods or services rendered to patients referred by or to

20  providers of health care goods and services, including, but

21  not limited to, hospitals, nursing homes, clinical

22  laboratories, ambulatory surgical centers, or pharmacies.  The

23  provisions of this paragraph shall not be construed to prevent

24  the licensee from receiving a fee for professional

25  consultation services.

26         (q)(r)  Exercising influence within a respiratory care

27  relationship for the purpose of engaging a patient in sexual

28  activity.  A patient is presumed to be incapable of giving

29  free, full, and informed consent to sexual activity with the

30  patient's respiratory care practitioner or respiratory

31  therapist.


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  1         (r)(s)  Making deceptive, untrue, or fraudulent

  2  representations in the delivery of respiratory care services

  3  or employing a trick or scheme in the delivery of respiratory

  4  care services if such a scheme or trick fails to conform to

  5  the generally prevailing standards of other licensees within

  6  the community.

  7         (s)(t)  Soliciting patients, either personally or

  8  through an agent, through the use of fraud, deception, or

  9  otherwise misleading statements or through the exercise of

10  intimidation or undue influence.

11         (t)(u)  Failing to keep written respiratory care

12  records justifying the reason for the action taken by the

13  licensee.

14         (u)(v)  Exercising influence on the patient in such a

15  manner as to exploit the patient for the financial gain of the

16  licensee or a third party, which includes, but is not limited

17  to, the promoting or selling of services, goods, appliances,

18  or drugs.

19         (v)(w)  Performing professional services which have not

20  been duly ordered by a physician licensed pursuant to chapter

21  458 or chapter 459 and which are not in accordance with

22  protocols established by the hospital, other health care

23  provider, or the board, except as provided in ss. 743.064,

24  766.103, and 768.13.

25         (w)(x)  Being unable to deliver respiratory care

26  services with reasonable skill and safety to patients by

27  reason of illness or use of alcohol, drugs, narcotics,

28  chemicals, or any other type of material as a result of any

29  mental or physical condition.  In enforcing this paragraph,

30  the department shall, upon probable cause, have authority to

31  compel a respiratory care practitioner or respiratory


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                                          HB 1867, First Engrossed



  1  therapist to submit to a mental or physical examination by

  2  physicians designated by the department.  The cost of

  3  examination shall be borne by the licensee being examined.

  4  The failure of a respiratory care practitioner or respiratory

  5  therapist to submit to such an examination when so directed

  6  constitutes an admission of the allegations against her or

  7  him, upon which a default and a final order may be entered

  8  without the taking of testimony or presentation of evidence,

  9  unless the failure was due to circumstances beyond her or his

10  control.  A respiratory care practitioner or respiratory

11  therapist affected under this paragraph shall at reasonable

12  intervals be afforded an opportunity to demonstrate that she

13  or he can resume the competent delivery of respiratory care

14  services with reasonable skill and safety to her or his

15  patients.  In any proceeding under this paragraph, neither the

16  record of proceedings nor the orders entered by the board

17  shall be used against a respiratory care practitioner or

18  respiratory therapist in any other proceeding.

19         (x)  Violating any provision of this chapter or chapter

20  456, or any rules adopted pursuant thereto.

21         (2)  The board may enter an order denying licensure or

22  imposing any of the penalties in s. 456.072(2) against any

23  applicant for licensure or licensee who is found guilty of

24  violating any provision of subsection (1) of this section or

25  who is found guilty of violating any provision of s.

26  456.072(1). If the board finds any person guilty of any of the

27  grounds set forth in subsection (1), it may enter an order

28  imposing one or more of the following penalties:

29         (a)  Denial of an application for licensure.

30         (b)  Revocation or suspension of licensure.

31  


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  1         (c)  Imposition of an administrative fine not to exceed

  2  $1,000 for each count or separate offense.

  3         (d)  Placement of the respiratory care practitioner or

  4  respiratory therapist on probation for such period of time and

  5  subject to such conditions as the board may specify,

  6  including, but not limited to, requiring the respiratory care

  7  practitioner or respiratory therapist to submit to treatment,

  8  to attend continuing education courses, or to work under the

  9  supervision of another respiratory care practitioner or

10  respiratory therapist.

11         (e)  Issuance of a reprimand.

12         Section 40.  Subsections (1) and (2) of section

13  468.518, Florida Statutes, are amended to read:

14         468.518  Grounds for disciplinary action.--

15         (1)  The following acts constitute grounds for denial

16  of a license or disciplinary action, as specified in s.

17  456.072(2) which the disciplinary actions in subsection (2)

18  may be taken:

19         (a)  Violating any provision of this part, any board or

20  agency rule adopted pursuant thereto, or any lawful order of

21  the board or agency previously entered in a disciplinary

22  hearing held pursuant to this part, or failing to comply with

23  a lawfully issued subpoena of the agency.  The provisions of

24  this paragraph also apply to any order or subpoena previously

25  issued by the Department of Health during its period of

26  regulatory control over this part.

27         (b)  Being unable to engage in dietetics and nutrition

28  practice or nutrition counseling with reasonable skill and

29  safety to patients by reason of illness or use of alcohol,

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

31  as a result of any mental or physical condition.


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                                          HB 1867, First Engrossed



  1         1.  A licensee whose license is suspended or revoked

  2  pursuant to this paragraph shall, at reasonable intervals, be

  3  given an opportunity to demonstrate that he or she can resume

  4  the competent practice of dietetics and nutrition or nutrition

  5  counseling with reasonable skill and safety to patients.

  6         2.  Neither the record of the proceeding nor the orders

  7  entered by the board in any proceeding under this paragraph

  8  may be used against a licensee in any other proceeding.

  9         (c)  Attempting to procure or procuring a license to

10  practice dietetics and nutrition or nutrition counseling by

11  fraud or material misrepresentation of material fact.

12         (d)  Having a license to practice dietetics and

13  nutrition or nutrition counseling revoked, suspended, or

14  otherwise acted against, including the denial of licensure by

15  the licensing authority of another state, district, territory,

16  or country.

17         (e)  Being convicted or found guilty of, or entering a

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

19  crime in any jurisdiction which directly relates to the

20  practice of dietetics and nutrition or nutrition counseling or

21  the ability to practice dietetics and nutrition or nutrition

22  counseling.

23         (f)  Making or filing a report or record that the

24  licensee knows to be false, willfully failing to file a report

25  or record required by state or federal law, willfully impeding

26  or obstructing such filing, or inducing another person to

27  impede or obstruct such filing. Such reports or records

28  include only those that are signed in the capacity of a

29  licensed dietitian/nutritionist or licensed nutrition

30  counselor.

31  


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                                          HB 1867, First Engrossed



  1         (g)  Advertising goods or services in a manner that is

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

  3  content.

  4         (h)  Committing an act of fraud or deceit, or of

  5  negligence, incompetency, or misconduct in the practice of

  6  dietetics and nutrition or nutrition counseling.

  7         (i)  Practicing with a revoked, suspended, inactive, or

  8  delinquent license.

  9         (j)  Treating or undertaking to treat human ailments by

10  means other than by dietetics and nutrition practice or

11  nutrition counseling.

12         (k)  Failing to maintain acceptable standards of

13  practice as set forth by the board and the council in rules

14  adopted pursuant to this part.

15         (l)  Engaging directly or indirectly in the dividing,

16  transferring, assigning, rebating, or refunding of fees

17  received for professional services, or profiting by means of a

18  credit or other valuable consideration, such as an unearned

19  commission, discount, or gratuity, with any person referring a

20  patient or with any relative or business associate of the

21  referring person. Nothing in this part prohibits the members

22  of any regularly and properly organized business entity that

23  is composed of licensees under this part and recognized under

24  the laws of this state from making any division of their total

25  fees among themselves as they determine necessary.

26         (m)  Advertising, by or on behalf of a licensee under

27  this part, any method of assessment or treatment which is

28  experimental or without generally accepted scientific

29  validation.

30         (n)  Violating any provision of this chapter or chapter

31  456, or any rules adopted pursuant thereto.


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                                          HB 1867, First Engrossed



  1         (2)  The board may enter an order denying licensure or

  2  imposing any of the penalties in s. 456.072(2) against any

  3  applicant for licensure or licensee who is found guilty of

  4  violating any provision of subsection (1) of this section or

  5  who is found guilty of violating any provision of s.

  6  456.072(1). When the board finds any licensee guilty of any of

  7  the grounds set forth in subsection (1), it may enter an order

  8  imposing one or more of the following penalties:

  9         (a)  Denial of an application for licensure;

10         (b)  Revocation or suspension of a license;

11         (c)  Imposition of an administrative fine not to exceed

12  $1,000 for each violation;

13         (d)  Issuance of a reprimand or letter of guidance;

14         (e)  Placement of the licensee on probation for a

15  period of time and subject to such conditions as the board may

16  specify, including requiring the licensee to attend continuing

17  education courses or to work under the supervision of a

18  licensed dietitian/nutritionist or licensed nutrition

19  counselor; or

20         (f)  Restriction of the authorized scope of practice of

21  the licensee.

22         Section 41.  Section 468.719, Florida Statutes, is

23  amended to read:

24         468.719  Disciplinary actions.--

25         (1)  The following acts constitute shall be grounds for

26  denial of a license or disciplinary action, as specified in s.

27  456.072(2) disciplinary actions provided for in subsection

28  (2):

29         (a)  A violation of any law relating to the practice of

30  athletic training, including, but not limited to, any

31  


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                                          HB 1867, First Engrossed



  1  violation of this part, s. 456.072, or any rule adopted

  2  pursuant thereto.

  3         (a)(b)  Failing to include the athletic trainer's name

  4  and license number in any advertising, including, but not

  5  limited to, business cards and letterhead, related to the

  6  practice of athletic training.  Advertising shall not include

  7  clothing or other novelty items.

  8         (b)(c)  Committing incompetency or misconduct in the

  9  practice of athletic training.

10         (c)(d)  Committing fraud or deceit in the practice of

11  athletic training.

12         (d)(e)  Committing negligence, gross negligence, or

13  repeated negligence in the practice of athletic training.

14         (e)(f)  While practicing athletic training, being

15  unable to practice athletic training with reasonable skill and

16  safety to athletes by reason of illness or use of alcohol or

17  drugs or as a result of any mental or physical condition.

18         (f)  Violating any provision of this chapter or chapter

19  456, or any rules adopted pursuant thereto.

20         (2)  The board may enter an order denying licensure or

21  imposing any of the penalties in s. 456.072(2) against any

22  applicant for licensure or licensee who is found guilty of

23  violating any provision of subsection (1) of this section or

24  who is found guilty of violating any provision of s.

25  456.072(1). When the board finds any person guilty of any of

26  the acts set forth in subsection (1), the board may enter an

27  order imposing one or more of the penalties provided in s.

28  456.072.

29         Section 42.  Section 468.811, Florida Statutes, is

30  amended to read:

31         468.811  Disciplinary proceedings.--


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                                          HB 1867, First Engrossed



  1         (1)  The following acts constitute are grounds for

  2  denial of a license or disciplinary action, as specified in s.

  3  456.072(2): disciplinary action against a licensee and the

  4  issuance of cease and desist orders or other related action by

  5  the department, pursuant to s. 456.072, against any person who

  6  engages in or aids in a violation.

  7         (a)  Attempting to procure a license by fraudulent

  8  misrepresentation.

  9         (b)  Having a license to practice orthotics,

10  prosthetics, or pedorthics revoked, suspended, or otherwise

11  acted against, including the denial of licensure in another

12  jurisdiction.

13         (c)  Being convicted or found guilty of or pleading

14  nolo contendere to, regardless of adjudication, in any

15  jurisdiction, a crime that directly relates to the practice of

16  orthotics, prosthetics, or pedorthics, including violations of

17  federal laws or regulations regarding orthotics, prosthetics,

18  or pedorthics.

19         (d)  Filing a report or record that the licensee knows

20  is false, intentionally or negligently failing to file a

21  report or record required by state or federal law, willfully

22  impeding or obstructing such filing, or inducing another

23  person to impede or obstruct such filing. Such reports or

24  records include only reports or records that are signed in a

25  person's capacity as a licensee under this act.

26         (e)  Advertising goods or services in a fraudulent,

27  false, deceptive, or misleading manner.

28         (f)  Violation of this act or chapter 456, or any rules

29  adopted thereunder.

30         (f)(g)  Violation of an order of the board, agency, or

31  department previously entered in a disciplinary hearing or


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                                          HB 1867, First Engrossed



  1  failure to comply with a subpoena issued by the board, agency,

  2  or department.

  3         (g)(h)  Practicing with a revoked, suspended, or

  4  inactive license.

  5         (h)(i)  Gross or repeated malpractice or the failure to

  6  deliver orthotic, prosthetic, or pedorthic services with that

  7  level of care and skill which is recognized by a reasonably

  8  prudent licensed practitioner with similar professional

  9  training as being acceptable under similar conditions and

10  circumstances.

11         (i)(j)  Failing to provide written notice of any

12  applicable warranty for an orthosis, prosthesis, or pedorthic

13  device that is provided to a patient.

14         (j)  Violating any provision of this chapter or chapter

15  456, or any rules adopted pursuant thereto.

16         (2)  The board may enter an order denying licensure or

17  imposing any of the penalties in s. 456.072(2) against any

18  applicant for licensure or licensee who is found guilty of

19  violating any provision of subsection (1) of this section or

20  who is found guilty of violating any provision of s.

21  456.072(1). The board may enter an order imposing one or more

22  of the penalties in s. 456.072(2) against any person who

23  violates any provision of subsection (1).

24         Section 43.  Subsections (1) and (2) of section 478.52,

25  Florida Statutes, are amended to read:

26         478.52  Disciplinary proceedings.--

27         (1)  The following acts constitute are grounds for

28  denial of a license or disciplinary action, as specified in s.

29  456.072(2) which the disciplinary actions in subsection (2)

30  may be taken:

31  


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                                          HB 1867, First Engrossed



  1         (a)  Obtaining or attempting to obtain a license by

  2  bribery, fraud, or knowing misrepresentation.

  3         (b)  Having a license or other authority to deliver

  4  electrolysis services revoked, suspended, or otherwise acted

  5  against, including denial of licensure, in another

  6  jurisdiction.

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

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

  9  crime, in any jurisdiction, which directly relates to the

10  practice of electrology.

11         (d)  Willfully making or filing a false report or

12  record, willfully failing to file a report or record required

13  for electrologists, or willfully impeding or obstructing the

14  filing of a report or record required by this act or inducing

15  another person to do so.

16         (e)  Circulating false, misleading, or deceptive

17  advertising.

18         (f)  Unprofessional conduct, including any departure

19  from, or failure to conform to, acceptable standards related

20  to the delivery of electrolysis services.

21         (g)  Engaging or attempting to engage in the illegal

22  possession, sale, or distribution of any illegal or controlled

23  substance.

24         (h)  Willfully failing to report any known violation of

25  this chapter.

26         (i)  Willfully or repeatedly violating a rule adopted

27  under this chapter, or an order of the board or department

28  previously entered in a disciplinary hearing.

29         (j)  Engaging in the delivery of electrolysis services

30  without an active license.

31  


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                                          HB 1867, First Engrossed



  1         (k)  Employing an unlicensed person to practice

  2  electrology.

  3         (l)  Failing to perform any statutory or legal

  4  obligation placed upon an electrologist.

  5         (m)  Accepting and performing professional

  6  responsibilities which the licensee knows, or has reason to

  7  know, she or he is not competent to perform.

  8         (n)  Delegating professional responsibilities to a

  9  person the licensee knows, or has reason to know, is

10  unqualified by training, experience, or licensure to perform.

11         (o)  Gross or repeated malpractice or the inability to

12  practice electrology with reasonable skill and safety.

13         (p)  Judicially determined mental incompetency.

14         (q)  Practicing or attempting to practice electrology

15  under a name other than her or his own.

16         (r)  Being unable to practice electrology with

17  reasonable skill and safety because of a mental or physical

18  condition or illness, or the use of alcohol, controlled

19  substances, or any other substance which impairs one's ability

20  to practice.

21         1.  The department may, upon probable cause, compel a

22  licensee to submit to a mental or physical examination by

23  physicians designated by the department. The cost of an

24  examination shall be borne by the licensee, and her or his

25  failure to submit to such an examination constitutes an

26  admission of the allegations against her or him, consequent

27  upon which a default and a final order may be entered without

28  the taking of testimony or presentation of evidence, unless

29  the failure was due to circumstances beyond her or his

30  control.

31  


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                                          HB 1867, First Engrossed



  1         2.  A licensee who is disciplined under this paragraph

  2  shall, at reasonable intervals, be afforded an opportunity to

  3  demonstrate that she or he can resume the practice of

  4  electrology with reasonable skill and safety.

  5         3.  In any proceeding under this paragraph, the record

  6  of proceedings or the orders entered by the board may not be

  7  used against a licensee in any other proceeding.

  8         (s)  Disclosing the identity of or information about a

  9  patient without written permission, except for information

10  which does not identify a patient and which is used for

11  training purposes in an approved electrolysis training

12  program.

13         (t)  Practicing or attempting to practice any permanent

14  hair removal except as described in s. 478.42(5).

15         (u)  Operating any electrolysis facility unless it has

16  been duly licensed as provided in this chapter.

17         (v)  Violating any provision of this chapter or chapter

18  456, or any rules adopted pursuant thereto.

19         (2)  The board may enter an order denying licensure or

20  imposing any of the penalties in s. 456.072(2) against any

21  applicant for licensure or licensee who is found guilty of

22  violating any provision of subsection (1) of this section or

23  who is found guilty of violating any provision of s.

24  456.072(1). When the board finds any person guilty of any of

25  the grounds set forth in subsection (1), including conduct

26  that would constitute a substantial violation of subsection

27  (1) which occurred prior to licensure, it may enter an order

28  imposing one or more of the following penalties:

29         (a)  Deny the application for licensure.

30         (b)  Revoke or suspend the license.

31  


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                                          HB 1867, First Engrossed



  1         (c)  Impose an administrative fine not to exceed $5,000

  2  for each count or separate offense.

  3         (d)  Place the licensee on probation for a specified

  4  time and subject the licensee to such conditions as the board

  5  determines necessary, including, but not limited to, requiring

  6  treatment, continuing education courses, reexamination, or

  7  working under the supervision of another licensee.

  8         (e)  Issue a reprimand to the licensee.

  9         (f)  Restriction of a licensee's practice.

10         Section 44.  Subsections (1) and (2) of section

11  480.046, Florida Statutes, are amended to read:

12         480.046  Grounds for disciplinary action by the

13  board.--

14         (1)  The following acts shall constitute grounds for

15  denial of a license or disciplinary action, as specified in s.

16  456.072(2) which disciplinary actions specified in subsection

17  (2) may be taken against a massage therapist or massage

18  establishment licensed under this act:

19         (a)  Attempting to procure a license to practice

20  massage by bribery or fraudulent misrepresentation.

21         (b)  Having a license to practice massage revoked,

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

23  licensure, by the licensing authority of another state,

24  territory, or country.

25         (c)  Being convicted or found guilty, regardless of

26  adjudication, of a crime in any jurisdiction which directly

27  relates to the practice of massage or to the ability to

28  practice massage. Any plea of nolo contendere shall be

29  considered a conviction for purposes of this chapter.

30         (d)  False, deceptive, or misleading advertising.

31  


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  1         (e)  Aiding, assisting, procuring, or advising any

  2  unlicensed person to practice massage contrary to the

  3  provisions of this chapter or to a rule of the department or

  4  the board.

  5         (f)  Making deceptive, untrue, or fraudulent

  6  representations in the practice of massage.

  7         (g)  Being unable to practice massage with reasonable

  8  skill and safety by reason of illness or use of alcohol,

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

10  as a result of any mental or physical condition.  In enforcing

11  this paragraph, the department shall have, upon probable

12  cause, authority to compel a massage therapist to submit to a

13  mental or physical examination by physicians designated by the

14  department.  Failure of a massage therapist to submit to such

15  examination when so directed, unless the failure was due to

16  circumstances beyond her or his control, shall constitute an

17  admission of the allegations against her or him, consequent

18  upon which a default and final order may be entered without

19  the taking of testimony or presentation of evidence.  A

20  massage therapist affected under this paragraph shall at

21  reasonable intervals be afforded an opportunity to demonstrate

22  that she or he can resume the competent practice of massage

23  with reasonable skill and safety to clients.

24         (h)  Gross or repeated malpractice or the failure to

25  practice massage with that level of care, skill, and treatment

26  which is recognized by a reasonably prudent massage therapist

27  as being acceptable under similar conditions and

28  circumstances.

29         (i)  Practicing or offering to practice beyond the

30  scope permitted by law or accepting and performing

31  


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  1  professional responsibilities which the licensee knows or has

  2  reason to know that she or he is not competent to perform.

  3         (j)  Delegating professional responsibilities to a

  4  person when the licensee delegating such responsibilities

  5  knows or has reason to know that such person is not qualified

  6  by training, experience, or licensure to perform.

  7         (k)  Violating any provision of this chapter, a rule of

  8  the board or department, or 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         (l)  Refusing to permit the department to inspect the

13  business premises of the licensee during regular business

14  hours.

15         (m)  Failing to keep the equipment and premises of the

16  massage establishment in a clean and sanitary condition.

17         (n)  Practicing massage at a site, location, or place

18  which is not duly licensed as a massage establishment, except

19  that a massage therapist, as provided by rules adopted by the

20  board, may provide massage services, excluding colonic

21  irrigation, at the residence of a client, at the office of the

22  client, at a sports event, at a convention, or at a trade

23  show.

24         (o)  Violating any provision of this chapter or chapter

25  456, or any rules adopted pursuant thereto.

26         (2)  The board may enter an order denying licensure or

27  imposing any of the penalties in s. 456.072(2) against any

28  applicant for licensure or licensee who is found guilty of

29  violating any provision of subsection (1) of this section or

30  who is found guilty of violating any provision of s.

31  456.072(1). When the board finds any person guilty of any of


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  1  the grounds set forth in subsection (1), it may enter an order

  2  imposing one or more of the following penalties:

  3         (a)  Refusal to license an applicant.

  4         (b)  Revocation or suspension of a license.

  5         (c)  Issuance of a reprimand or censure.

  6         (d)  Imposition of an administrative fine not to exceed

  7  $1,000 for each count or separate offense.

  8         Section 45.  Section 483.825, Florida Statutes, is

  9  amended to read:

10         483.825  Grounds for disciplinary action.--

11         (1)  The following acts constitute grounds for denial

12  of a license or disciplinary action, as specified in s.

13  456.072(2) which disciplinary actions specified in s. 483.827

14  may be taken against applicants, registrants, and licensees

15  under this part:

16         (a)(1)  Attempting to obtain, obtaining, or renewing a

17  license or registration under this part by bribery, by

18  fraudulent misrepresentation, or through an error of the

19  department or the board.

20         (b)(2)  Engaging in or attempting to engage in, or

21  representing herself or himself as entitled to perform, any

22  clinical laboratory procedure or category of procedures not

23  authorized pursuant to her or his license.

24         (c)(3)  Demonstrating incompetence or making consistent

25  errors in the performance of clinical laboratory examinations

26  or procedures or erroneous reporting.

27         (d)(4)  Performing a test and rendering a report

28  thereon to a person not authorized by law to receive such

29  services.

30         (e)(5)  Has been convicted or found guilty of, or

31  entered a plea of nolo contendere to, regardless of


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  1  adjudication, a crime in any jurisdiction which directly

  2  relates to the activities of clinical laboratory personnel or

  3  involves moral turpitude or fraudulent or dishonest dealing.

  4  The record of a conviction certified or authenticated in such

  5  form as to be admissible in evidence under the laws of the

  6  state shall be admissible as prima facie evidence of such

  7  guilt.

  8         (f)(6)  Having been adjudged mentally or physically

  9  incompetent.

10         (g)(7)  Violating or Aiding and abetting in the

11  violation of any provision of this part or the rules adopted

12  hereunder.

13         (h)(8)  Reporting a test result when no laboratory test

14  was performed on a clinical specimen.

15         (i)(9)  Knowingly advertising false services or

16  credentials.

17         (j)(10)  Having a license revoked, suspended, or

18  otherwise acted against, including the denial of licensure, by

19  the licensing authority of another jurisdiction. The licensing

20  authority's acceptance of a relinquishment of a license,

21  stipulation, consent order, or other settlement, offered in

22  response to or in anticipation of the filing of administrative

23  charges against the licensee, shall be construed as action

24  against the licensee.

25         (k)(11)  Failing to report to the board, in writing,

26  within 30 days that an action under subsection (5), subsection

27  (6), or subsection (10) has been taken against the licensee or

28  one's license to practice as clinical laboratory personnel in

29  another state, territory, country, or other jurisdiction.

30         (l)(12)  Being unable to perform or report clinical

31  laboratory examinations with reasonable skill and safety to


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                                          HB 1867, First Engrossed



  1  patients by reason of illness or use of alcohol, drugs,

  2  narcotics, chemicals, or any other type of material or as a

  3  result of any mental or physical condition.  In enforcing this

  4  subsection, the department shall have, upon a finding of the

  5  secretary or his or her designee that probable cause exists to

  6  believe that the licensee is unable to practice because of the

  7  reasons stated in this subsection, the authority to issue an

  8  order to compel a licensee to submit to a mental or physical

  9  examination by physicians designated by the department.  If

10  the licensee refuses to comply with such order, the

11  department's order directing such examination may be enforced

12  by filing a petition for enforcement in the circuit court

13  where the licensee resides or does business.  The department

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

15  51.011.  A licensee affected under this subsection shall at

16  reasonable intervals be afforded an opportunity to demonstrate

17  that he or she can resume competent practice with reasonable

18  skill and safety to patients.

19         (m)(13)  Delegating professional responsibilities to a

20  person when the licensee delegating such responsibilities

21  knows, or has reason to know, that such person is not

22  qualified by training, experience, or licensure to perform

23  them.

24         (n)(14)  Violating a previous order of the board

25  entered in a disciplinary proceeding.

26         (o)(15)  Failing to report to the department a person

27  or other licensee who the licensee knows is in violation of

28  this chapter or the rules of the department or board adopted

29  hereunder.

30         (p)(16)  Making or filing a report which the licensee

31  knows to be false, intentionally or negligently failing to


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                                          HB 1867, First Engrossed



  1  file a report or record required by state or federal law,

  2  willfully impeding or obstructing such filing or inducing

  3  another person to do so, including, but not limited to,

  4  impeding an agent of the state from obtaining a report or

  5  record for investigative purposes. Such reports or records

  6  shall include only those generated in the capacity as a

  7  licensed clinical laboratory personnel.

  8         (q)(17)  Paying or receiving any commission, bonus,

  9  kickback, or rebate, or engaging in any split-fee arrangement

10  in any form whatsoever with a physician, organization, agency,

11  or person, either directly or indirectly for patients referred

12  to providers of health care goods and services including, but

13  not limited to, hospitals, nursing homes, clinical

14  laboratories, ambulatory surgical centers, or pharmacies. The

15  provisions of this subsection shall not be construed to

16  prevent a clinical laboratory professional from receiving a

17  fee for professional consultation services.

18         (r)(18)  Exercising influence on a patient or client in

19  such a manner as to exploit the patient or client for the

20  financial gain of the licensee or other third party, which

21  shall include, but not be limited to, the promoting, selling,

22  or withholding of services, goods, appliances, referrals, or

23  drugs.

24         (s)(19)  Practicing or offering to practice beyond the

25  scope permitted by law or rule, or accepting or performing

26  professional services or responsibilities which the licensee

27  knows or has reason to know that he or she is not competent to

28  perform.

29         (t)(20)  Misrepresenting or concealing a material fact

30  at any time during any phase of the licensing, investigative,

31  or disciplinary process, procedure, or proceeding.


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                                          HB 1867, First Engrossed



  1         (u)(21)  Improperly interfering with an investigation

  2  or any disciplinary proceeding.

  3         (v)(22)  Engaging in or attempting to engage in sexual

  4  misconduct, causing undue embarrassment or using disparaging

  5  language or language of a sexual nature towards a patient,

  6  exploiting superior/subordinate, professional/patient,

  7  instructor/student relationships for personal gain, sexual

  8  gratification, or advantage.

  9         (w)  Violating any provision of this chapter or chapter

10  456, or any rules adopted pursuant thereto.

11         (2)  The board may enter an order denying licensure or

12  imposing any of the penalties in s. 456.072(2) against any

13  applicant for licensure or licensee who is found guilty of

14  violating any provision of subsection (1) of this section or

15  who is found guilty of violating any provision of s.

16  456.072(1).

17         (3)  In determining the amount of the fine to be levied

18  for a violation, as provided in subsection (1), the following

19  factors shall be considered:

20         (a)  The severity of the violation, including the

21  probability that death or serious harm to the health or safety

22  of any person will result or has resulted, the severity of the

23  actual or potential harm, and the extent to which the

24  provisions of this part were violated.

25         (b)  Actions taken by the licensee to correct the

26  violation or to remedy complaints.

27         (c)  Any previous violation by the licensee.

28         (d)  The financial benefit to the licensee of

29  committing or continuing the violation.

30         Section 46.  Section 483.827, Florida Statutes, is

31  repealed.


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                                          HB 1867, First Engrossed



  1         Section 47.  Subsection (6) of section 483.901, Florida

  2  Statutes, is amended to read:

  3         483.901  Medical physicists; definitions; licensure.--

  4         (6)  LICENSE REQUIRED.--An individual may not engage in

  5  the practice of medical physics, including the specialties of

  6  diagnostic radiological physics, therapeutic radiological

  7  physics, medical nuclear radiological physics, or medical

  8  health physics, without a license issued by the department for

  9  the appropriate specialty.

10         (a)  The department shall adopt rules to administer

11  this section which specify license application and renewal

12  fees, continuing education requirements, and standards for

13  practicing medical physics.  The council shall recommend to

14  the department continuing education requirements that shall be

15  a condition of license renewal.  The department shall require

16  a minimum of 24 hours per biennium of continuing education

17  offered by an organization recommended by the council and

18  approved by the department.  The department, upon

19  recommendation of the council, may adopt rules to specify

20  continuing education requirements for persons who hold a

21  license in more than one specialty.

22         (b)  In order to apply for a medical physicist license

23  in one or more specialties, a person must file an individual

24  application for each specialty with the department.  The

25  application must be on a form prescribed by the department and

26  must be accompanied by a nonrefundable application fee for

27  each specialty.

28         (c)  The department may issue a license to an eligible

29  applicant if the applicant meets all license requirements.  At

30  any time before the department issues a license, the applicant

31  may request in writing that the application be withdrawn.  To


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                                          HB 1867, First Engrossed



  1  reapply, the applicant must submit a new application and an

  2  additional nonrefundable application fee and must meet all

  3  current licensure requirements.

  4         (d)  The department shall review each completed

  5  application for a license which the department receives.

  6         (e)  On receipt of an application and fee as specified

  7  in this section, the department may issue a license to

  8  practice medical physics in this state on or after October 1,

  9  1997, to a person who is board certified in the medical

10  physics specialty in which the applicant applies to practice

11  by the American Board of Radiology for diagnostic radiological

12  physics, therapeutic radiological physics, or medical nuclear

13  radiological physics; by the American Board of Medical Physics

14  for diagnostic radiological physics, therapeutic radiological

15  physics, or medical nuclear radiological physics; or by the

16  American Board of Health Physics or an equivalent certifying

17  body approved by the department.

18         (f)  A licensee shall:

19         1.  Display the license in a place accessible to the

20  public; and

21         2.  Report immediately any change in the licensee's

22  address or name to the department.

23         (g)  The following acts constitute are grounds for

24  denial of a license or disciplinary action, as specified in s.

25  456.072(2) which the disciplinary actions in paragraph (h) may

26  be taken:

27         1.  Obtaining or attempting to obtain a license by

28  bribery, fraud, knowing misrepresentation, or concealment of

29  material fact or through an error of the department.

30         2.  Having a license denied, revoked, suspended, or

31  otherwise acted against in another jurisdiction.


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                                          HB 1867, First Engrossed



  1         3.  Being convicted or found guilty of, or entering a

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

  3  crime in any jurisdiction which relates to the practice of, or

  4  the ability to practice, the profession of medical physics.

  5         4.  Willfully failing to file a report or record

  6  required for medical physics or willfully impeding or

  7  obstructing the filing of a report or record required by this

  8  section or inducing another person to do so.

  9         5.  Making misleading, deceptive, or fraudulent

10  representations in or related to the practice of medical

11  physics.

12         6.  Willfully failing to report any known violation of

13  this section or any rule adopted thereunder.

14         7.  Willfully or repeatedly violating a rule adopted

15  under this section or an order of the department.

16         7.8.  Failing to perform any statutory or legal

17  obligation placed upon a licensee.

18         8.9.  Aiding, assisting, procuring, employing, or

19  advising any unlicensed person to practice medical physics

20  contrary to this section or any rule adopted thereunder.

21         9.10.  Delegating or contracting for the performance of

22  professional responsibilities by a person when the licensee

23  delegating or contracting such responsibilities knows, or has

24  reason to know, such person is not qualified by training,

25  experience, and authorization to perform them.

26         10.11.  Practicing or offering to practice beyond the

27  scope permitted by law or accepting and performing

28  professional responsibilities the licensee knows, or has

29  reason to know, the licensee is not competent to perform.

30         11.12.  Gross or repeated malpractice or the inability

31  to practice medical physics with reasonable skill and safety.


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                                          HB 1867, First Engrossed



  1         12.13.  Judicially determined mental incompetency.

  2         13.14.  Being unable to practice medical physics with

  3  reasonable skill and safety because of a mental or physical

  4  condition or illness or the use of alcohol, controlled

  5  substances, or any other substance which impairs one's ability

  6  to practice.

  7         a.  The department may, upon probable cause, compel a

  8  licensee to submit to a mental or physical examination by

  9  physicians designated by the department.  The cost of an

10  examination shall be borne by the licensee, and the licensee's

11  failure to submit to such an examination constitutes an

12  admission of the allegations against the licensee, consequent

13  upon which a default and a final order may be entered without

14  the taking of testimony or presentation of evidence, unless

15  the failure was due to circumstances beyond the licensee's

16  control.

17         b.  A licensee who is disciplined under this

18  subparagraph shall, at reasonable intervals, be afforded an

19  opportunity to demonstrate that the licensee can resume the

20  practice of medical physics with reasonable skill and safety.

21         c.  With respect to any proceeding under this

22  subparagraph, the record of proceedings or the orders entered

23  by the department may not be used against a licensee in any

24  other proceeding.

25         14.  Violating any provision of this chapter or chapter

26  456, or any rules adopted pursuant thereto.

27         (h)  The board may enter an order denying licensure or

28  imposing any of the penalties in s. 456.072(2) against any

29  applicant for licensure or licensee who is found guilty of

30  violating any provision of subsection (1) of this section or

31  who is found guilty of violating any provision of s.


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                                          HB 1867, First Engrossed



  1  456.072(1). When the department finds any person guilty of any

  2  of the grounds set forth in paragraph (g), including conduct

  3  that would constitute a substantial violation of paragraph (g)

  4  which occurred prior to licensure, it may enter an order

  5  imposing one or more of the following penalties:

  6         1.  Deny the application for licensure.

  7         2.  Revoke or suspend the license.

  8         3.  Impose an administrative fine for each count or

  9  separate offense.

10         4.  Place the licensee on probation for a specified

11  time and subject the licensee to such conditions as the

12  department determines necessary, including requiring

13  treatment, continuing education courses, or working under the

14  monitoring or supervision of another licensee.

15         5.  Restrict a licensee's practice.

16         6.  Issue a reprimand to the licensee.

17         (i)  The department may not issue or reinstate a

18  license to a person it has deemed unqualified until it is

19  satisfied that such person has complied with the terms and

20  conditions of the final order and that the licensee can safely

21  practice medical physics.

22         (j)  Upon receipt of a complete application and the fee

23  set forth by rule, the department may issue a

24  physicist-in-training certificate to a person qualified to

25  practice medical physics under direct supervision. The

26  department may establish by rule requirements for initial

27  certification and renewal of a physicist-in-training

28  certificate.

29         Section 48.  Subsections (1) and (2) of section

30  484.014, Florida Statutes, are amended to read:

31         484.014  Disciplinary actions.--


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                                          HB 1867, First Engrossed



  1         (1)  The following acts constitute relating to the

  2  practice of opticianry shall be grounds for denial of a

  3  license or disciplinary action, as specified in s. 456.072(2)

  4  both disciplinary action against an optician as set forth in

  5  this section and cease and desist or other related action by

  6  the department as set forth in s. 456.065 against any person

  7  operating an optical establishment who engages in, aids, or

  8  abets any such violation:

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

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

11  the department or the board.

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

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

14  representation.

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

16  licensee knows to be false, intentionally or negligently

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

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

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

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

21  or file as an optician.

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

23  available by providing such information upon request or upon

24  the presentation of a prescription.

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

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

27  content.

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

29  misconduct, in the authorized practice of opticianry.

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

31  chapter 456 or any rules promulgated pursuant thereto.


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                                          HB 1867, First Engrossed



  1         (g)(h)  Practicing with a revoked, suspended, inactive,

  2  or delinquent license.

  3         (h)(i)  Violation of a lawful order of the board or

  4  department previously entered in a disciplinary hearing or

  5  failing to comply with a lawfully issued subpoena of the

  6  department.

  7         (i)(j)  Violation of any provision of s. 484.012.

  8         (j)(k)  Conspiring with another licensee or with any

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

10  coerce, intimidate, or preclude another licensee from lawfully

11  advertising her or his services.

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

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

14         (l)(m)  Failing to keep written prescription files.

15         (m)(n)  Willfully failing to report any person who the

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

17  department or the board.

18         (n)(o)  Exercising influence on a client in such a

19  manner as to exploit the client for financial gain of the

20  licensee or of a third party.

21         (o)(p)  Gross or repeated malpractice.

22         (p)(q)  Permitting any person not licensed as an

23  optician in this state to fit or dispense any lenses,

24  spectacles, eyeglasses, or other optical devices which are

25  part of the practice of opticianry.

26         (q)(r)  Being convicted or found guilty of, or entering

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

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

29  relates to the ability to practice opticianry or to the

30  practice of opticianry.

31  


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                                          HB 1867, First Engrossed



  1         (r)(s)  Having been disciplined by a regulatory agency

  2  in another state for any offense that would constitute a

  3  violation of Florida law or rules regulating opticianry.

  4         (s)(t)  Being unable to practice opticianry with

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

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

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

  8  affected under this paragraph shall at reasonable intervals be

  9  afforded an opportunity to demonstrate that she or he can

10  resume the competent practice of opticianry with reasonable

11  skill and safety to her or his customers.

12         (t)  Violating any provision of this chapter or chapter

13  456, or any rules adopted pursuant thereto.

14         (2)  The board may enter an order denying licensure or

15  imposing any of the penalties in s. 456.072(2) against any

16  applicant for licensure or licensee who is found guilty of

17  violating any provision of subsection (1) of this section or

18  who is found guilty of violating any provision of s.

19  456.072(1). When the board finds any person guilty of any of

20  the grounds set forth in subsection (1), it may enter an order

21  imposing one or more of the following penalties:

22         (a)  Refusal to certify to the department an

23  application for licensure.

24         (b)  Revocation or suspension of a license.

25         (c)  Imposition of an administrative fine not to exceed

26  $1,000 for each count or separate offense.

27         (d)  Issuance of a reprimand.

28         (e)  Placement of the optician on probation for a

29  period of time and subject to such conditions as the board may

30  specify, including requiring the optician to submit to

31  


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                                          HB 1867, First Engrossed



  1  treatment or to work under the supervision of another

  2  optician.

  3         Section 49.  Subsections (1) and (2) of section

  4  484.056, Florida Statutes, are amended to read:

  5         484.056  Disciplinary proceedings.--

  6         (1)  The following acts constitute relating to the

  7  practice of dispensing hearing aids shall be grounds for

  8  denial of a license or disciplinary action, as specified in s.

  9  456.072(2) both disciplinary action against a hearing aid

10  specialist as set forth in this section and cease and desist

11  or other related action by the department as set forth in s.

12  456.065 against any person owning or operating a hearing aid

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

14  violation:

15         (a)  Violation of any provision of s. 456.072(1), s.

16  484.0512, or s. 484.053.

17         (b)  Attempting to procure a license to dispense

18  hearing aids by bribery, by fraudulent misrepresentations, or

19  through an error of the department or the board.

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

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

22  licensure, by the licensing authority of another state,

23  territory, or country.

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

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

26  crime in any jurisdiction which directly relates to the

27  practice of dispensing hearing aids or the ability to practice

28  dispensing hearing aids, including violations of any federal

29  laws or regulations regarding hearing aids.

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

31  licensee knows to be false, intentionally or negligently


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                                          HB 1867, First Engrossed



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

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

  3  inducing another person to impede or obstruct such filing.

  4  Such reports or records shall include only those reports or

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

  6  hearing aid specialist.

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

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

  9  content.

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

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

12  practice of dispensing hearing aids.

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

14  chapter 456, or any rules promulgated pursuant thereto.

15         (h)(i)  Violation of a lawful order of the board or

16  department previously entered in a disciplinary hearing or

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

18  or department.

19         (i)(j)  Practicing with a revoked, suspended, inactive,

20  or delinquent license.

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

22  advertising matter, promotional literature, testimonial,

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

24  representation, however disseminated or published, which is

25  misleading, deceiving, or untruthful.

26         (k)(l)  Showing or demonstrating, or, in the event of

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

28  purpose represented or implied by such action.

29         (l)(m)  Misrepresentation of professional services

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

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


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  1  "clinical," "medical audiologist," "clinical audiologist,"

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

  3  title which might connote the availability of professional

  4  services when such use is not accurate.

  5         (m)(n)  Representation, advertisement, or implication

  6  that a hearing aid or its repair is guaranteed without

  7  providing full disclosure of the identity of the guarantor;

  8  the nature, extent, and duration of the guarantee; and the

  9  existence of conditions or limitations imposed upon the

10  guarantee.

11         (n)(o)  Representing, directly or by implication, that

12  a hearing aid utilizing bone conduction has certain specified

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

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

15  and conspicuously that the instrument operates on the bone

16  conduction principle and that in many cases of hearing loss

17  this type of instrument may not be suitable.

18         (o)(p)  Making any predictions or prognostications as

19  to the future course of a hearing impairment, either in

20  general terms or with reference to an individual person.

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

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

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

24  similar or opposite effect.

25         (q)(r)  Making any statement regarding the cure of the

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

27         (r)(s)  Representing or implying that a hearing aid is

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

29  "prescription-made" or in any other sense specially fabricated

30  for an individual person when such is not the case.

31  


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                                          HB 1867, First Engrossed



  1         (s)(t)  Canvassing from house to house or by telephone

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

  3  hearing aid, except that contacting persons who have evidenced

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

  5  of hearing aids, shall not be considered canvassing.

  6         (t)(u)  Failure to submit to the board on an annual

  7  basis, or such other basis as may be provided by rule,

  8  certification of testing and calibration of audiometric

  9  testing equipment on the form approved by the board.

10         (u)(v)  Failing to provide all information as described

11  in s. 484.051(1).

12         (v)(w)  Exercising influence on a client in such a

13  manner as to exploit the client for financial gain of the

14  licensee or of a third party.

15         (w)  Violating any provision of this chapter or chapter

16  456, or any rules adopted pursuant thereto.

17         (2)(a)  The board may enter an order denying licensure

18  or imposing any of the penalties in s. 456.072(2) against any

19  applicant for licensure or licensee who is found guilty of

20  violating any provision of subsection (1) of this section or

21  who is found guilty of violating any provision of s.

22  456.072(1). Except as provided in paragraph (b), when the

23  board finds any hearing aid specialist to be guilty of any of

24  the grounds set forth in subsection (1), it may enter an order

25  imposing one or more of the following penalties:

26         1.  Denial of an application for licensure.

27         2.  Revocation or suspension of a license.

28         3.  Imposition of an administrative fine not to exceed

29  $1,000 for each count or separate offense.

30         4.  Issuance of a reprimand.

31  


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                                          HB 1867, First Engrossed



  1         5.  Placing the hearing aid specialist on probation for

  2  a period of time and subject to such conditions as the board

  3  may specify, including requiring the hearing aid specialist to

  4  attend continuing education courses or to work under the

  5  supervision of another hearing aid specialist.

  6         6.  Restricting the authorized scope of practice.

  7         (b)  The board shall revoke the license of any hearing

  8  aid specialist found guilty of canvassing as described in this

  9  section.

10         Section 50.  Subsections (1) and (2) of section

11  486.125, Florida Statutes, are amended to read:

12         486.125  Refusal, revocation, or suspension of license;

13  administrative fines and other disciplinary measures.--

14         (1)  The following acts shall constitute grounds for

15  denial of a license or disciplinary action, as specified in s.

16  456.072(2) which the disciplinary actions specified in

17  subsection (2) may be taken:

18         (a)  Being unable to practice physical therapy with

19  reasonable skill and safety to patients by reason of illness

20  or use of alcohol, drugs, narcotics, chemicals, or any other

21  type of material or as a result of any mental or physical

22  condition.

23         1.  In enforcing this paragraph, upon a finding of the

24  secretary or the secretary's designee that probable cause

25  exists to believe that the licensee is unable to practice

26  physical therapy due to the reasons stated in this paragraph,

27  the department shall have the authority to compel a physical

28  therapist or physical therapist assistant to submit to a

29  mental or physical examination by a physician designated by

30  the department.  If the licensee refuses to comply with such

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


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                                          HB 1867, First Engrossed



  1  be enforced by filing a petition for enforcement in the

  2  circuit court where the licensee resides or serves as a

  3  physical therapy practitioner.  The licensee against whom the

  4  petition is filed shall not be named or identified by initials

  5  in any public court records or documents, and the proceedings

  6  shall be closed to the public.  The department shall be

  7  entitled to the summary procedure provided in s. 51.011.

  8         2.  A physical therapist or physical therapist

  9  assistant whose license is suspended or revoked pursuant to

10  this subsection shall, at reasonable intervals, be given an

11  opportunity to demonstrate that she or he can resume the

12  competent practice of physical therapy with reasonable skill

13  and safety to patients.

14         3.  Neither the record of proceeding nor the orders

15  entered by the board in any proceeding under this subsection

16  may be used against a physical therapist or physical therapist

17  assistant in any other proceeding.

18         (b)  Having committed fraud in the practice of physical

19  therapy or deceit in obtaining a license as a physical

20  therapist or as a physical therapist assistant.

21         (c)  Being convicted or found guilty regardless of

22  adjudication, of a crime in any jurisdiction which directly

23  relates to the practice of physical therapy or to the ability

24  to practice physical therapy. The entry of any plea of nolo

25  contendere shall be considered a conviction for purpose of

26  this chapter.

27         (d)  Having treated or undertaken to treat human

28  ailments by means other than by physical therapy, as defined

29  in this chapter.

30  

31  


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                                          HB 1867, First Engrossed



  1         (e)  Failing to maintain acceptable standards of

  2  physical therapy practice as set forth by the board in rules

  3  adopted pursuant to this chapter.

  4         (f)  Engaging directly or indirectly in the dividing,

  5  transferring, assigning, rebating, or refunding of fees

  6  received for professional services, or having been found to

  7  profit by means of a credit or other valuable consideration,

  8  such as an unearned commission, discount, or gratuity, with

  9  any person referring a patient or with any relative or

10  business associate of the referring person.  Nothing in this

11  chapter shall be construed to prohibit the members of any

12  regularly and properly organized business entity which is

13  comprised of physical therapists and which is recognized under

14  the laws of this state from making any division of their total

15  fees among themselves as they determine necessary.

16         (g)  Having a license revoked or suspended; having had

17  other disciplinary action taken against her or him; or having

18  had her or his application for a license refused, revoked, or

19  suspended by the licensing authority of another state,

20  territory, or country.

21         (h)  Violating any provision of this chapter, a rule of

22  the board or department, or a lawful order of the board or

23  department previously entered in a disciplinary hearing.

24         (i)  Making or filing a report or record which the

25  licensee knows to be false.  Such reports or records shall

26  include only those which are signed in the capacity of a

27  physical therapist.

28         (j)  Practicing or offering to practice beyond the

29  scope permitted by law or accepting and performing

30  professional responsibilities which the licensee knows or has

31  


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                                          HB 1867, First Engrossed



  1  reason to know that she or he is not competent to perform,

  2  including, but not limited to, specific spinal manipulation.

  3         (k)  Violating any provision of this chapter or chapter

  4  456, or any rules adopted pursuant thereto.

  5         (2)  The board may enter an order denying licensure or

  6  imposing any of the penalties in s. 456.072(2) against any

  7  applicant for licensure or licensee who is found guilty of

  8  violating any provision of subsection (1) of this section or

  9  who is found guilty of violating any provision of s.

10  456.072(1). When the board finds any person guilty of any of

11  the grounds set forth in subsection (1), it may enter an order

12  imposing one or more of the following penalties:

13         (a)  Refusal to certify to the department an

14  application for licensure.

15         (b)  Revocation or suspension of a license.

16         (c)  Restriction of practice.

17         (d)  Imposition of an administrative fine not to exceed

18  $1,000 for each count or separate offense.

19         (e)  Issuance of a reprimand.

20         (f)  Placement of the physical therapist or physical

21  therapist assistant on probation for a period of time and

22  subject to such conditions as the board may specify,

23  including, but not limited to, requiring the physical

24  therapist or physical therapist assistant to submit to

25  treatment, to attend continuing education courses, to submit

26  to reexamination, or to work under the supervision of another

27  physical therapist.

28         (g)  Recovery of actual costs of investigation and

29  prosecution.

30         Section 51.  Section 490.009, Florida Statutes, is

31  amended to read:


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                                          HB 1867, First Engrossed



  1         490.009  Discipline.--

  2         (1)  When the department or, in the case of

  3  psychologists, the board finds that an applicant, provisional

  4  licensee, or licensee whom it regulates under this chapter has

  5  committed any of the acts set forth in subsection (2), it may

  6  issue an order imposing one or more of the following

  7  penalties:

  8         (a)  Denial of an application for licensure, either

  9  temporarily or permanently.

10         (b)  Revocation of an application for licensure, either

11  temporarily or permanently.

12         (c)  Suspension for a period of up to 5 years or

13  revocation of a license, after hearing.

14         (d)  Immediate suspension of a license pursuant to s.

15  120.60(6).

16         (e)  Imposition of an administrative fine not to exceed

17  $5,000 for each count or separate offense.

18         (f)  Issuance of a public reprimand.

19         (g)  Placement of an applicant or licensee on probation

20  for a period of time and subject to conditions specified by

21  the department or, in the case of psychologists, by the board,

22  including, but not limited to, requiring the applicant or

23  licensee to submit to treatment, to attend continuing

24  education courses, to submit to reexamination, or to work

25  under the supervision of a designated licensee.

26         (h)  Restriction of practice.

27         (1)(2)  The following acts constitute of a licensee,

28  provisional licensee, or applicant are grounds for denial of a

29  license or disciplinary action, as specified in s. 456.072(2)

30  which the disciplinary actions listed in subsection (1) may be

31  taken:


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                                          HB 1867, First Engrossed



  1         (a)  Attempting to obtain, obtaining, or renewing a

  2  license under this chapter by bribery or fraudulent

  3  misrepresentation or through an error of the board or

  4  department.

  5         (b)  Having a license to practice a comparable

  6  profession revoked, suspended, or otherwise acted against,

  7  including the denial of certification or licensure by another

  8  state, territory, or country.

  9         (c)  Being convicted or found guilty, regardless of

10  adjudication, of a crime in any jurisdiction which directly

11  relates to the practice of his or her profession or the

12  ability to practice his or her profession.  A plea of nolo

13  contendere creates a rebuttable presumption of guilt of the

14  underlying criminal charges.  However, the board shall allow

15  the person who is the subject of the disciplinary proceeding

16  to present any evidence relevant to the underlying charges and

17  circumstances surrounding the plea.

18         (d)  False, deceptive, or misleading advertising or

19  obtaining a fee or other thing of value on the representation

20  that beneficial results from any treatment will be guaranteed.

21         (e)  Advertising, practicing, or attempting to practice

22  under a name other than one's own.

23         (f)  Maintaining a professional association with any

24  person who the applicant or licensee knows, or has reason to

25  believe, is in violation of this chapter or of a rule of the

26  department or, in the case of psychologists, of the department

27  or the board.

28         (g)  Knowingly aiding, assisting, procuring, or

29  advising any nonlicensed person to hold himself or herself out

30  as licensed under this chapter.

31  


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                                          HB 1867, First Engrossed



  1         (h)  Failing to perform any statutory or legal

  2  obligation placed upon a person licensed under this chapter.

  3         (i)  Willfully making or filing a false report or

  4  record; failing to file a report or record required by state

  5  or federal law; willfully impeding or obstructing the filing

  6  of a report or record; or inducing another person to make or

  7  file a false report or record or to impede or obstruct the

  8  filing of a report or record.  Such report or record includes

  9  only a report or record which requires the signature of a

10  person licensed under this chapter.

11         (j)  Paying a kickback, rebate, bonus, or other

12  remuneration for receiving a patient or client, or receiving a

13  kickback, rebate, bonus, or other remuneration for referring a

14  patient or client to another provider of mental health care

15  services or to a provider of health care services or goods;

16  referring a patient or client to oneself for services on a

17  fee-paid basis when those services are already being paid for

18  by some other public or private entity; or entering into a

19  reciprocal referral agreement.

20         (k)  Committing any act upon a patient or client which

21  would constitute sexual battery or which would constitute

22  sexual misconduct as defined in s. 490.0111.

23         (l)  Making misleading, deceptive, untrue, or

24  fraudulent representations in the practice of any profession

25  licensed under this chapter.

26         (m)  Soliciting patients or clients personally, or

27  through an agent, through the use of fraud, intimidation,

28  undue influence, or a form of overreaching or vexatious

29  conduct.

30         (n)  Failing to make available to a patient or client,

31  upon written request, copies of test results, reports, or


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                                          HB 1867, First Engrossed



  1  documents in the possession or under the control of the

  2  licensee which have been prepared for and paid for by the

  3  patient or client.

  4         (o)  Failing to respond within 30 days to a written

  5  communication from the department concerning any investigation

  6  by the department or to make available any relevant records

  7  with respect to any investigation about the licensee's conduct

  8  or background.

  9         (p)  Being unable to practice the profession for which

10  he or she is licensed under this chapter with reasonable skill

11  or competence as a result of any mental or physical condition

12  or by reason of illness; drunkenness; or excessive use of

13  drugs, narcotics, chemicals, or any other substance.  In

14  enforcing this paragraph, upon a finding by the secretary, the

15  secretary's designee, or the board that probable cause exists

16  to believe that the licensee is unable to practice the

17  profession because of the reasons stated in this paragraph,

18  the department shall have the authority to compel a licensee

19  to submit to a mental or physical examination by psychologists

20  or physicians designated by the department or board.  If the

21  licensee refuses to comply with the department's order, the

22  department may file a petition for enforcement in the circuit

23  court of the circuit in which the licensee resides or does

24  business.  The licensee shall not be named or identified by

25  initials in the petition or in any other public court records

26  or documents, and the enforcement proceedings shall be closed

27  to the public.  The department shall be entitled to the

28  summary procedure provided in s. 51.011.  A licensee affected

29  under this paragraph shall be afforded an opportunity at

30  reasonable intervals to demonstrate that he or she can resume

31  


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                                          HB 1867, First Engrossed



  1  the competent practice for which he or she is licensed with

  2  reasonable skill and safety to patients.

  3         (q)  Violating provisions of this chapter, or of

  4  chapter 456, or any rules adopted pursuant thereto.

  5         (q)(r)  Performing any treatment or prescribing any

  6  therapy which, by the prevailing standards of the mental

  7  health professions in the community, would constitute

  8  experimentation on human subjects, without first obtaining

  9  full, informed, and written consent.

10         (r)(s)  Failing to meet the minimum standards of

11  performance in professional activities when measured against

12  generally prevailing peer performance, including the

13  undertaking of activities for which the licensee is not

14  qualified by training or experience.

15         (s)(t)  Delegating professional responsibilities to a

16  person whom the licensee knows or has reason to know is not

17  qualified by training or experience to perform such

18  responsibilities.

19         (t)(u)  Violating a rule relating to the regulation of

20  the profession or a lawful order of the department previously

21  entered in a disciplinary hearing.

22         (u)(v)  Failing to maintain in confidence a

23  communication made by a patient or client in the context of

24  such services, except as provided in s. 490.0147.

25         (v)(w)  Making public statements which are derived from

26  test data, client contacts, or behavioral research and which

27  identify or damage research subjects or clients.

28         (w)  Violating any provision of this chapter or chapter

29  456, or any rules adopted pursuant thereto.

30         (2)  The department, or in the case of psychologists,

31  the board, may enter an order denying licensure or imposing


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                                          HB 1867, First Engrossed



  1  any of the penalties in s. 456.072(2) against any applicant

  2  for licensure or licensee who is found guilty of violating any

  3  provision of subsection (1) of this section or who is found

  4  guilty of violating any provision of s. 456.072(1).

  5         Section 52.  Section 491.009, Florida Statutes, is

  6  amended to read:

  7         491.009  Discipline.--

  8         (1)  When the department or the board finds that an

  9  applicant, licensee, provisional licensee, registered intern,

10  or certificateholder whom it regulates under this chapter has

11  committed any of the acts set forth in subsection (2), it may

12  issue an order imposing one or more of the following

13  penalties:

14         (a)  Denial of an application for licensure,

15  registration, or certification, either temporarily or

16  permanently.

17         (b)  Revocation of an application for licensure,

18  registration, or certification, either temporarily or

19  permanently.

20         (c)  Suspension for a period of up to 5 years or

21  revocation of a license, registration, or certificate, after

22  hearing.

23         (d)  Immediate suspension of a license, registration,

24  or certificate pursuant to s. 120.60(6).

25         (e)  Imposition of an administrative fine not to exceed

26  $1,000 for each count or separate offense.

27         (f)  Issuance of a public reprimand.

28         (g)  Placement of an applicant, licensee, registered

29  intern, or certificateholder on probation for a period of time

30  and subject to such conditions as the board may specify,

31  including, but not limited to, requiring the applicant,


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                                          HB 1867, First Engrossed



  1  licensee, registered intern, or certificateholder to submit to

  2  treatment, to attend continuing education courses, to submit

  3  to reexamination, or to work under the supervision of a

  4  designated licensee or certificateholder.

  5         (h)  Restriction of practice.

  6         (1)(2)  The following acts constitute of a licensee,

  7  provisional licensee, registered intern, certificateholder, or

  8  applicant are grounds for denial of a license or disciplinary

  9  action, as specified in s. 456.072(2) which the disciplinary

10  actions listed in subsection (1) may be taken:

11         (a)  Attempting to obtain, obtaining, or renewing a

12  license, registration, or certificate under this chapter by

13  bribery or fraudulent misrepresentation or through an error of

14  the board or the department.

15         (b)  Having a license, registration, or certificate to

16  practice a comparable profession revoked, suspended, or

17  otherwise acted against, including the denial of certification

18  or licensure by another state, territory, or country.

19         (c)  Being convicted or found guilty of, regardless of

20  adjudication, or having entered a plea of nolo contendere to,

21  a crime in any jurisdiction which directly relates to the

22  practice of his or her profession or the ability to practice

23  his or her profession.  However, in the case of a plea of nolo

24  contendere, the board shall allow the person who is the

25  subject of the disciplinary proceeding to present evidence in

26  mitigation relevant to the underlying charges and

27  circumstances surrounding the plea.

28         (d)  False, deceptive, or misleading advertising or

29  obtaining a fee or other thing of value on the representation

30  that beneficial results from any treatment will be guaranteed.

31  


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                                          HB 1867, First Engrossed



  1         (e)  Advertising, practicing, or attempting to practice

  2  under a name other than one's own.

  3         (f)  Maintaining a professional association with any

  4  person who the applicant, licensee, registered intern, or

  5  certificateholder knows, or has reason to believe, is in

  6  violation of this chapter or of a rule of the department or

  7  the board.

  8         (g)  Knowingly aiding, assisting, procuring, or

  9  advising any nonlicensed, nonregistered, or noncertified

10  person to hold himself or herself out as licensed, registered,

11  or certified under this chapter.

12         (h)  Failing to perform any statutory or legal

13  obligation placed upon a person licensed, registered, or

14  certified under this chapter.

15         (i)  Willfully making or filing a false report or

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

17  or federal law; willfully impeding or obstructing the filing

18  of a report or record; or inducing another person to make or

19  file a false report or record or to impede or obstruct the

20  filing of a report or record.  Such report or record includes

21  only a report or record which requires the signature of a

22  person licensed, registered, or certified under this chapter.

23         (j)  Paying a kickback, rebate, bonus, or other

24  remuneration for receiving a patient or client, or receiving a

25  kickback, rebate, bonus, or other remuneration for referring a

26  patient or client to another provider of mental health care

27  services or to a provider of health care services or goods;

28  referring a patient or client to oneself for services on a

29  fee-paid basis when those services are already being paid for

30  by some other public or private entity; or entering into a

31  reciprocal referral agreement.


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  1         (k)  Committing any act upon a patient or client which

  2  would constitute sexual battery or which would constitute

  3  sexual misconduct as defined pursuant to s. 491.0111.

  4         (l)  Making misleading, deceptive, untrue, or

  5  fraudulent representations in the practice of any profession

  6  licensed, registered, or certified under this chapter.

  7         (m)  Soliciting patients or clients personally, or

  8  through an agent, through the use of fraud, intimidation,

  9  undue influence, or a form of overreaching or vexatious

10  conduct.

11         (n)  Failing to make available to a patient or client,

12  upon written request, copies of tests, reports, or documents

13  in the possession or under the control of the licensee,

14  registered intern, or certificateholder which have been

15  prepared for and paid for by the patient or client.

16         (o)  Failing to respond within 30 days to a written

17  communication from the department or the board concerning any

18  investigation by the department or the board, or failing to

19  make available any relevant records with respect to any

20  investigation about the licensee's, registered intern's, or

21  certificateholder's conduct or background.

22         (p)  Being unable to practice the profession for which

23  he or she is licensed, registered, or certified under this

24  chapter with reasonable skill or competence as a result of any

25  mental or physical condition or by reason of illness;

26  drunkenness; or excessive use of drugs, narcotics, chemicals,

27  or any other substance. In enforcing this paragraph, upon a

28  finding by the secretary, the secretary's designee, or the

29  board that probable cause exists to believe that the licensee,

30  registered intern, or certificateholder is unable to practice

31  the profession because of the reasons stated in this


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

  2  licensee, registered intern, or certificateholder to submit to

  3  a mental or physical examination by psychologists, physicians,

  4  or other licensees under this chapter, designated by the

  5  department or board.  If the licensee, registered intern, or

  6  certificateholder refuses to comply with such order, the

  7  department's order directing the examination may be enforced

  8  by filing a petition for enforcement in the circuit court in

  9  the circuit in which the licensee, registered intern, or

10  certificateholder resides or does business.  The licensee,

11  registered intern, or certificateholder against whom the

12  petition is filed shall not be named or identified by initials

13  in any public court records or documents, and the proceedings

14  shall be closed to the public.  The department shall be

15  entitled to the summary procedure provided in s. 51.011. A

16  licensee, registered intern, or certificateholder affected

17  under this paragraph shall at reasonable intervals be afforded

18  an opportunity to demonstrate that he or she can resume the

19  competent practice for which he or she is licensed,

20  registered, or certified with reasonable skill and safety to

21  patients.

22         (q)  Violating provisions of this chapter, or of

23  chapter 456, or any rules adopted pursuant thereto.

24         (q)(r)  Performing any treatment or prescribing any

25  therapy which, by the prevailing standards of the mental

26  health professions in the community, would constitute

27  experimentation on human subjects, without first obtaining

28  full, informed, and written consent.

29         (r)(s)  Failing to meet the minimum standards of

30  performance in professional activities when measured against

31  generally prevailing peer performance, including the


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  1  undertaking of activities for which the licensee, registered

  2  intern, or certificateholder is not qualified by training or

  3  experience.

  4         (s)(t)  Delegating professional responsibilities to a

  5  person whom the licensee, registered intern, or

  6  certificateholder knows or has reason to know is not qualified

  7  by training or experience to perform such responsibilities.

  8         (t)(u)  Violating a rule relating to the regulation of

  9  the profession or a lawful order of the department or the

10  board previously entered in a disciplinary hearing.

11         (u)(v)  Failure of the licensee, registered intern, or

12  certificateholder to maintain in confidence a communication

13  made by a patient or client in the context of such services,

14  except as provided in s. 491.0147.

15         (v)(w)  Making public statements which are derived from

16  test data, client contacts, or behavioral research and which

17  identify or damage research subjects or clients.

18         (w)  Violating any provision of this chapter or chapter

19  456, or any rules adopted pursuant thereto.

20         (2)  The department, or in the case of psychologists,

21  the board, may enter an order denying licensure or imposing

22  any of the penalties in s. 456.072(2) against any applicant

23  for licensure or licensee who is found guilty of violating any

24  provision of subsection (1) of this section or who is found

25  guilty of violating any provision of s. 456.072(1).

26         Section 53.  Subsection (3) of section 456.065, Florida

27  Statutes, is amended to read:

28         456.065  Unlicensed practice of a health care

29  profession; intent; cease and desist notice; penalties;

30  enforcement; citations; fees; allocation and disposition of

31  moneys collected.--


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

  2  professions regulated by the department, the department shall

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

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

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

  6  other fees collected from each licensee. The board, with

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

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

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

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

11  balance. The department shall make direct charges to the

12  Medical Quality Assurance Trust Fund by profession. The

13  department shall seek board advice regarding enforcement

14  methods and strategies. The department shall directly credit

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

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

17  licensure provisions. The department shall include all

18  financial and statistical data resulting from unlicensed

19  activity enforcement as a separate category in the quarterly

20  management report provided for in s. 456.025. For an

21  unlicensed activity account, a balance which remains at the

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

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

24  account of that profession. The department shall also use

25  these funds to inform and educate consumers generally on the

26  importance of using licensed health care practitioners.

27         Section 54.  Subsection (1) of section 456.074, Florida

28  Statutes, is amended to read:

29         456.074  Certain health care practitioners; immediate

30  suspension of license.--

31  


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  1         (1)  The department shall issue an emergency order

  2  suspending the license of any person licensed under chapter

  3  458, chapter 459, chapter 460, chapter 461, chapter 462,

  4  chapter 463, chapter 464, chapter 465, chapter 466, or chapter

  5  484 who pleads guilty to, is convicted or found guilty of, or

  6  who enters a plea of nolo contendere to, regardless of

  7  adjudication, a felony under chapter 409, chapter 817, or

  8  chapter 893 or under 21 U.S.C. ss. 801-970 or under 42 U.S.C.

  9  ss. 1395-1396.

10         Section 55.  Effective July 1, 2003, section 464.005,

11  Florida Statutes, is amended to read:

12         464.005  Board headquarters.--The board shall maintain

13  its official headquarters in Tallahassee the city in which it

14  has been domiciled for the past 5 years.

15         Section 56.  Except as otherwise expressly provided in

16  this act, this act shall take effect July 1, 2001.

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