House Bill hb1809

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    Florida House of Representatives - 2002                HB 1809

        By Representatives Hogan and Harrell






  1                      A bill to be entitled

  2         An act relating to health care; stating

  3         legislative findings and intent; amending s.

  4         456.072, F.S.; providing that the failure to

  5         disclose a practitioner's training in health

  6         care advertisements constitutes grounds for

  7         discipline; providing penalties; creating s.

  8         458.328, F.S.; establishing criteria for the

  9         supervision of specialty medical care by

10         allopathic physicians; creating s. 459.014,

11         F.S.; establishing criteria for the supervision

12         of specialty medical care by osteopathic

13         physicians; providing an effective date.

14

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

16

17         Section 1.  It is the finding and intent of the

18  Legislature that there exists a compelling state interest that

19  patients should be informed of the credentials of the health

20  care providers that treat them and that the public should be

21  protected from misleading health care advertising. The

22  Legislature finds that the most direct and effective manner in

23  which to protect patients from the identifiable harm is to

24  ensure that each patient is accurately informed of the

25  licensure and level of specialty training of his or her health

26  care practitioner and that such practitioners provide services

27  within the scope of their respective licensure.

28         Section 2.  Section 456.072, Florida Statutes, is

29  amended to read:

30         456.072  Grounds for discipline; penalties;

31  enforcement.--

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  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 guilty or nolo contendere to, regardless of

11  adjudication, a crime in any jurisdiction which relates to the

12  practice of, or the ability to practice, a licensee's

13  profession.

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

15  product, as defined by federal regulations, without having

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

17  governing the registration of such devices.

18         (e)  Failing to comply with the educational course

19  requirements for human immunodeficiency virus and acquired

20  immune deficiency syndrome.

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

22  regulated profession revoked, suspended, or otherwise acted

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

24  authority of any jurisdiction, including its agencies or

25  subdivisions, for a violation that would constitute a

26  violation under Florida law. The licensing authority's

27  acceptance of a relinquishment of licensure, stipulation,

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

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

30  shall be construed as action against the license.

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  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.

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  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 a lawful order of the department or the

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

13  the department.

14         (r)  Improperly interfering with an investigation or

15  inspection authorized by statute, or with any disciplinary

16  proceeding.

17         (s)  Failing to comply with the educational course

18  requirements for domestic violence.

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

20  381.026 and 381.0261 to provide patients with information

21  about their patient rights and how to file a patient

22  complaint.

23         (u)  Engaging or attempting to engage in sexual

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

25         (v)  Failing to comply with the requirements for

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

27  failing to provide initial information, failing to timely

28  provide updated information, or making misleading, untrue,

29  deceptive, or fraudulent representations on a profile,

30  credentialing, or initial or renewal licensure application.

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

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

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

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

  5  crime in any jurisdiction. Convictions, findings,

  6  adjudications, and pleas entered into prior to the enactment

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

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

  9         (x)  Using information about people involved in motor

10  vehicle accidents which has been derived from accident reports

11  made by law enforcement officers or persons involved in

12  accidents pursuant to s. 316.066, or using information

13  published in a newspaper or other news publication or through

14  a radio or television broadcast that has used information

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

16  any other solicitation whatsoever of the people involved in

17  such accidents.

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

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

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

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

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

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

24  exists to believe that the licensee is unable to practice

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

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

27  or physical examination by physicians designated by the

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

29  the department's order directing such examination may be

30  enforced by filing a petition for enforcement in the circuit

31  court where the licensee resides or does business. The

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  1  department shall be entitled to the summary procedure provided

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

  3  this paragraph shall at reasonable intervals be afforded an

  4  opportunity to demonstrate that he or she can resume the

  5  competent practice of his or her profession with reasonable

  6  skill and safety to patients.

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

  8  112.0455, on any confirmed preemployment or employer-ordered

  9  drug screening when the practitioner does not have a lawful

10  prescription and legitimate medical reason for using such

11  drug.

12         (aa)  Performing or attempting to perform health care

13  services on the wrong patient, a wrong-site procedure, a wrong

14  procedure, or an unauthorized procedure or a procedure that is

15  medically unnecessary or otherwise unrelated to the patient's

16  diagnosis or medical condition. For the purposes of this

17  paragraph, performing or attempting to perform health care

18  services includes the preparation of the patient.

19         (bb)  Leaving a foreign body in a patient, such as a

20  sponge, clamp, forceps, surgical needle, or other

21  paraphernalia commonly used in surgical, examination, or other

22  diagnostic procedures. For the purposes of this paragraph, it

23  shall be legally presumed that retention of a foreign body is

24  not in the best interest of the patient and is not within the

25  standard of care of the profession, regardless of the intent

26  of the professional.

27         (cc)  In any advertisement for health services, failing

28  to provide, at a minimum, the type of license under which the

29  practitioner is operating. Advertising of board certification

30  must include the name of the certifying board. If the

31  certifying board is not recognized by the American Board of

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  1  Medical Specialties, by the American Osteopathic Association,

  2  or by the appropriate licensing board, that fact must be

  3  disclosed in the same location and typeface as the

  4  advertisement's statement regarding board certification.

  5         (dd)(cc)  Violating any provision of this chapter, the

  6  applicable practice act, or any rules adopted pursuant

  7  thereto.

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

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

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

11  practice act, including conduct constituting a substantial

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

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

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

15  penalties:

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

17  restrictions, an application for a license.

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

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

20  not limited to, restricting the licensee from practicing in

21  certain settings, restricting the licensee to work only under

22  designated conditions or in certain settings, restricting the

23  licensee from performing or providing designated clinical and

24  administrative services, restricting the licensee from

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

26  other restriction found to be necessary for the protection of

27  the public health, safety, and welfare.

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

29  $10,000 for each count or separate offense. If the violation

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

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  1  the board, or the department if there is no board, must impose

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

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

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

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

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

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

  8  licensee to undergo treatment, attend continuing education

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

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

11  tailored to the violations found.

12         (g)  Corrective action.

13         (h)  Imposition of an administrative fine in accordance

14  with s. 381.0261 for violations regarding patient rights.

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

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

17         (j)  Requirement that the practitioner undergo remedial

18  education.

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

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

22  sanctions are necessary to protect the public or to compensate

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

24  the disciplining authority consider and include in the order

25  requirements designed to rehabilitate the practitioner. All

26  costs associated with compliance with orders issued under this

27  subsection are the obligation of the practitioner.

28         (3)(a)  Notwithstanding subsection (2), if the ground

29  for disciplinary action is the first-time failure of the

30  licensee to satisfy continuing education requirements

31  established by the board, or by the department if there is no

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  1  board, the board or department, as applicable, shall issue a

  2  citation in accordance with s. 456.077 and assess a fine, as

  3  determined by the board or department by rule. In addition,

  4  for each hour of continuing education not completed or

  5  completed late, the board or department, as applicable, may

  6  require the licensee to take 1 additional hour of continuing

  7  education for each hour not completed or completed late.

  8         (b)  Notwithstanding subsection (2), if the ground for

  9  disciplinary action is the first-time violation of a practice

10  act for unprofessional conduct, as used in ss. 464.018(1)(h),

11  467.203(1)(f), 468.365(1)(f), and 478.52(1)(f), and no actual

12  harm to the patient occurred, the board or department, as

13  applicable, shall issue a citation in accordance with s.

14  456.077 and assess a penalty as determined by rule of the

15  board or department.

16         (4)  In addition to any other discipline imposed

17  through final order, or citation, entered on or after July 1,

18  2001, pursuant to this section or discipline imposed through

19  final order, or citation, entered on or after July 1, 2001,

20  for a violation of any practice act, the board, or the

21  department when there is no board, shall assess costs related

22  to the investigation and prosecution of the case. In any case

23  where the board or the department imposes a fine or assessment

24  and the fine or assessment is not paid within a reasonable

25  time, such reasonable time to be prescribed in the rules of

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

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

28  Department of Legal Affairs may contract for the collection

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

30  assessment.

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  1         (5)  In addition to, or in lieu of, any other remedy or

  2  criminal prosecution, the department may file a proceeding in

  3  the name of the state seeking issuance of an injunction or a

  4  writ of mandamus against any person who violates any of the

  5  provisions of this chapter, or any provision of law with

  6  respect to professions regulated by the department, or any

  7  board therein, or the rules adopted pursuant thereto.

  8         (6)  In the event the board, or the department when

  9  there is no board, determines that revocation of a license is

10  the appropriate penalty, the revocation shall be permanent.

11  However, the board may establish by rule requirements for

12  reapplication by applicants whose licenses have been

13  permanently revoked. Such requirements may include, but shall

14  not be limited to, satisfying current requirements for an

15  initial license.

16         Section 3.  Section 458.328, Florida Statutes, is

17  created to read:

18         458.328  Duties of supervising physician.--Any

19  physician delegating statutorily authorized medical care or

20  services that are advertised or promoted as specialty services

21  to a non-physician must directly supervise the initial

22  non-emergency patient contact, any new non-emergency medical

23  condition, and all surgical procedures other than minor

24  surgical procedures for previously diagnosed conditions. This

25  section does not apply to practitioners while they are

26  providing services in facilities licensed under chapter 395 or

27  chapter 400.

28         Section 4.  Section 459.014, Florida Statutes, is

29  created to read:

30         459.014  Duties of supervising physician.--Any

31  physician delegating statutorily authorized medical care or

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  1  services that are advertised or promoted as specialty services

  2  to a non-physician must directly supervise the initial

  3  non-emergency patient contact, any new non-emergency medical

  4  condition, and all surgical procedures other than minor

  5  surgical procedures for previously diagnosed conditions. This

  6  section does not apply to practitioners while they are

  7  providing services in facilities licensed under chapter 395 or

  8  chapter 400.

  9         Section 5.  This act shall take effect upon becoming a

10  law.

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12            *****************************************

13                          SENATE SUMMARY

14    Provides that the failure of certain health care
      practitioners to disclose, in any advertisement for their
15    services, certain particulars concerning their training
      constitutes grounds for discipline. Provides penalties.
16    Establishes criteria for the supervision of specialty
      medical care by allopathic physicians and by osteopathic
17    physicians.

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