CODING: Words stricken are deletions; words underlined are additions.
c2822716
Senate
s0300-98
s0370
2002
AA
104940
Senator Wise moved the following amendment to amendment
(104940):
On page 97, between lines 23 and 24,
On page 107, line 21, after the semicolon,
SENATE AMENDMENT
Bill No. CS for CS for SB 370
Amendment No. ___ Barcode 822716
CHAMBER ACTION
Senate House
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11 Senator Wise moved the following amendment to amendment
12 (104940):
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14 Senate Amendment (with title amendment)
15 On page 97, between lines 23 and 24,
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17 insert:
18 Section 80. Subsection (4) is added to section
19 456.074, Florida Statutes, to read:
20 456.074 Certain health care practitioners; immediate
21 suspension of license.--
22 (4) Upon receipt of information that a
23 Florida-licensed health care practitioner has defaulted on a
24 student loan issued or guaranteed by the state or the Federal
25 Government, the department shall notify the licensee by
26 certified mail that he or she shall be subject to immediate
27 suspension of license unless, within 45 days after the date of
28 mailing, the licensee provides proof that new payment terms
29 have been agreed upon by all parties to the loan. The
30 department shall issue an emergency order suspending the
31 license of any licensee who, after 45 days following the date
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1 of mailing from the department, has failed to provide such
2 proof. Production of such proof shall not prohibit the
3 department from proceeding with disciplinary action against
4 the licensee pursuant to s. 456.073.
5 Section 81. Paragraph (k) of subsection (1) of section
6 456.072, Florida Statutes, is amended, and subsection (2) of
7 that section is reenacted, to read:
8 456.072 Grounds for discipline; penalties;
9 enforcement.--
10 (1) The following acts shall constitute grounds for
11 which the disciplinary actions specified in subsection (2) may
12 be taken:
13 (k) Failing to perform any statutory or legal
14 obligation placed upon a licensee. For purposes of this
15 section, failing to repay a student loan issued or guaranteed
16 by the state or the Federal Government in accordance with the
17 terms of the loan or failing to comply with service
18 scholarship obligations shall be considered a failure to
19 perform a statutory or legal obligation, and the minimum
20 disciplinary action imposed shall be a suspension of the
21 license until new payment terms are agreed upon or the
22 scholarship obligation is resumed, followed by probation for
23 the duration of the student loan or remaining scholarship
24 obligation period, and a fine equal to 10 percent of the
25 defaulted loan amount. Fines collected shall be deposited
26 into the Medical Quality Assurance Trust Fund.
27 (2) When the board, or the department when there is no
28 board, finds any person guilty of the grounds set forth in
29 subsection (1) or of any grounds set forth in the applicable
30 practice act, including conduct constituting a substantial
31 violation of subsection (1) or a violation of the applicable
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1 practice act which occurred prior to obtaining a license, it
2 may enter an order imposing one or more of the following
3 penalties:
4 (a) Refusal to certify, or to certify with
5 restrictions, an application for a license.
6 (b) Suspension or permanent revocation of a license.
7 (c) Restriction of practice or license, including, but
8 not limited to, restricting the licensee from practicing in
9 certain settings, restricting the licensee to work only under
10 designated conditions or in certain settings, restricting the
11 licensee from performing or providing designated clinical and
12 administrative services, restricting the licensee from
13 practicing more than a designated number of hours, or any
14 other restriction found to be necessary for the protection of
15 the public health, safety, and welfare.
16 (d) Imposition of an administrative fine not to exceed
17 $10,000 for each count or separate offense. If the violation
18 is for fraud or making a false or fraudulent representation,
19 the board, or the department if there is no board, must impose
20 a fine of $10,000 per count or offense.
21 (e) Issuance of a reprimand or letter of concern.
22 (f) Placement of the licensee on probation for a
23 period of time and subject to such conditions as the board, or
24 the department when there is no board, may specify. Those
25 conditions may include, but are not limited to, requiring the
26 licensee to undergo treatment, attend continuing education
27 courses, submit to be reexamined, work under the supervision
28 of another licensee, or satisfy any terms which are reasonably
29 tailored to the violations found.
30 (g) Corrective action.
31 (h) Imposition of an administrative fine in accordance
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1 with s. 381.0261 for violations regarding patient rights.
2 (i) Refund of fees billed and collected from the
3 patient or a third party on behalf of the patient.
4 (j) Requirement that the practitioner undergo remedial
5 education.
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7 In determining what action is appropriate, the board, or
8 department when there is no board, must first consider what
9 sanctions are necessary to protect the public or to compensate
10 the patient. Only after those sanctions have been imposed may
11 the disciplining authority consider and include in the order
12 requirements designed to rehabilitate the practitioner. All
13 costs associated with compliance with orders issued under this
14 subsection are the obligation of the practitioner.
15 Section 82. The Department of Health shall obtain from
16 the United States Department of Health and Human Services
17 information necessary to investigate and prosecute health care
18 practitioners for failing to repay a student loan or comply
19 with scholarship service obligations pursuant to s.
20 456.072(1)(k), Florida Statutes. The department shall obtain
21 from the United States Department of Health and Human Services
22 a list of default health care practitioners each month, along
23 with the information necessary to investigate a complaint in
24 accordance with s. 456.073, Florida Statutes. The department
25 may obtain evidence to support the investigation and
26 prosecution from any financial institution or educational
27 institution involved in providing the loan or education to the
28 practitioner. The department shall report to the Legislature
29 as part of the annual report required by s. 456.026, Florida
30 Statutes, the number of practitioners in default, along with
31 the results of the department's investigations and
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1 prosecutions, and the amount of fines collected from
2 practitioners prosecuted for violating s. 456.072(1)(k),
3 Florida Statutes.
4 Section 83. Section 456.073, Florida Statutes, is
5 amended to read:
6 456.073 Disciplinary proceedings.--Disciplinary
7 proceedings for each board shall be within the jurisdiction of
8 the department.
9 (1) The department, for the boards under its
10 jurisdiction, shall cause to be investigated any complaint
11 that is filed before it if the complaint is in writing, signed
12 by the complainant, and legally sufficient. A complaint is
13 legally sufficient if it contains ultimate facts that show
14 that a violation of this chapter, of any of the practice acts
15 relating to the professions regulated by the department, or of
16 any rule adopted by the department or a regulatory board in
17 the department has occurred. In order to determine legal
18 sufficiency, the department may require supporting information
19 or documentation. The department may investigate, and the
20 department or the appropriate board may take appropriate final
21 action on, a complaint even though the original complainant
22 withdraws it or otherwise indicates a desire not to cause the
23 complaint to be investigated or prosecuted to completion. The
24 department may investigate an anonymous complaint if the
25 complaint is in writing and is legally sufficient, if the
26 alleged violation of law or rules is substantial, and if the
27 department has reason to believe, after preliminary inquiry,
28 that the violations alleged in the complaint are true. The
29 department may investigate a complaint made by a confidential
30 informant if the complaint is legally sufficient, if the
31 alleged violation of law or rule is substantial, and if the
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1 department has reason to believe, after preliminary inquiry,
2 that the allegations of the complainant are true. The
3 department may initiate an investigation if it has reasonable
4 cause to believe that a licensee or a group of licensees has
5 violated a Florida statute, a rule of the department, or a
6 rule of a board. Except as provided in ss. 458.331(9),
7 459.015(9), 460.413(5), and 461.013(6), when an investigation
8 of any subject is undertaken, the department shall promptly
9 furnish to the subject or the subject's attorney a copy of the
10 complaint or document that resulted in the initiation of the
11 investigation. The subject may submit a written response to
12 the information contained in such complaint or document within
13 20 days after service to the subject of the complaint or
14 document. The subject's written response shall be considered
15 by the probable cause panel. The right to respond does not
16 prohibit the issuance of a summary emergency order if
17 necessary to protect the public. However, if the secretary, or
18 the secretary's designee, and the chair of the respective
19 board or the chair of its probable cause panel agree in
20 writing that such notification would be detrimental to the
21 investigation, the department may withhold notification. The
22 department may conduct an investigation without notification
23 to any subject if the act under investigation is a criminal
24 offense.
25 (2) The department shall allocate sufficient and
26 adequately trained staff to expeditiously and thoroughly
27 determine legal sufficiency and investigate all legally
28 sufficient complaints. For purposes of this section, it is the
29 intent of the Legislature that the term "expeditiously" means
30 that the department complete the report of its initial
31 investigative findings and recommendations concerning the
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1 existence of probable cause within 6 months after its receipt
2 of the complaint. The failure of the department, for
3 disciplinary cases under its jurisdiction, to comply with the
4 time limits of this section while investigating a complaint
5 against a licensee constitutes harmless error in any
6 subsequent disciplinary action unless a court finds that
7 either the fairness of the proceeding or the correctness of
8 the action may have been impaired by a material error in
9 procedure or a failure to follow prescribed procedure. When
10 its investigation is complete and legally sufficient, the
11 department shall prepare and submit to the probable cause
12 panel of the appropriate regulatory board the investigative
13 report of the department. The report shall contain the
14 investigative findings and the recommendations of the
15 department concerning the existence of probable cause. The
16 department shall not recommend a letter of guidance in lieu of
17 finding probable cause if the subject has already been issued
18 a letter of guidance for a related offense. At any time after
19 legal sufficiency is found, the department may dismiss any
20 case, or any part thereof, if the department determines that
21 there is insufficient evidence to support the prosecution of
22 allegations contained therein. The department shall provide a
23 detailed report to the appropriate probable cause panel prior
24 to dismissal of any case or part thereof, and to the subject
25 of the complaint after dismissal of any case or part thereof,
26 under this section. For cases dismissed prior to a finding of
27 probable cause, such report is confidential and exempt from s.
28 119.07(1). The probable cause panel shall have access, upon
29 request, to the investigative files pertaining to a case prior
30 to dismissal of such case. If the department dismisses a case,
31 the probable cause panel may retain independent legal counsel,
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1 employ investigators, and continue the investigation and
2 prosecution of the case as it deems necessary.
3 (3) As an alternative to the provisions of subsections
4 (1) and (2), when a complaint is received, the department may
5 provide a licensee with a notice of noncompliance for an
6 initial offense of a minor violation. Each board, or the
7 department if there is no board, shall establish by rule those
8 minor violations under this provision which do not endanger
9 the public health, safety, and welfare and which do not
10 demonstrate a serious inability to practice the profession.
11 Failure of a licensee to take action in correcting the
12 violation within 15 days after notice may result in the
13 institution of regular disciplinary proceedings.
14 (4) The determination as to whether probable cause
15 exists shall be made by majority vote of a probable cause
16 panel of the board, or by the department, as appropriate. Each
17 regulatory board shall provide by rule that the determination
18 of probable cause shall be made by a panel of its members or
19 by the department. Each board may provide by rule for multiple
20 probable cause panels composed of at least two members. Each
21 board may provide by rule that one or more members of the
22 panel or panels may be a former board member. The length of
23 term or repetition of service of any such former board member
24 on a probable cause panel may vary according to the direction
25 of the board when authorized by board rule. Any probable cause
26 panel must include one of the board's former or present
27 consumer members, if one is available, is willing to serve,
28 and is authorized to do so by the board chair. Any probable
29 cause panel must include a present board member. Any probable
30 cause panel must include a former or present professional
31 board member. However, any former professional board member
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1 serving on the probable cause panel must hold an active valid
2 license for that profession. All proceedings of the panel are
3 exempt from s. 286.011 until 10 days after probable cause has
4 been found to exist by the panel or until the subject of the
5 investigation waives his or her privilege of confidentiality.
6 The probable cause panel may make a reasonable request, and
7 upon such request the department shall provide such additional
8 investigative information as is necessary to the determination
9 of probable cause. A request for additional investigative
10 information shall be made within 15 days from the date of
11 receipt by the probable cause panel of the investigative
12 report of the department or the agency. The probable cause
13 panel or the department, as may be appropriate, shall make its
14 determination of probable cause within 30 days after receipt
15 by it of the final investigative report of the department. The
16 secretary may grant extensions of the 15-day and the 30-day
17 time limits. In lieu of a finding of probable cause, the
18 probable cause panel, or the department if there is no board,
19 may issue a letter of guidance to the subject. If, within the
20 30-day time limit, as may be extended, the probable cause
21 panel does not make a determination regarding the existence of
22 probable cause or does not issue a letter of guidance in lieu
23 of a finding of probable cause, the department must make a
24 determination regarding the existence of probable cause within
25 10 days after the expiration of the time limit. If the
26 probable cause panel finds that probable cause exists, it
27 shall direct the department to file a formal complaint against
28 the licensee. The department shall follow the directions of
29 the probable cause panel regarding the filing of a formal
30 complaint. If directed to do so, the department shall file a
31 formal complaint against the subject of the investigation and
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1 prosecute that complaint pursuant to chapter 120. However, the
2 department may decide not to prosecute the complaint if it
3 finds that probable cause has been improvidently found by the
4 panel. In such cases, the department shall refer the matter to
5 the board. The board may then file a formal complaint and
6 prosecute the complaint pursuant to chapter 120. The
7 department shall also refer to the board any investigation or
8 disciplinary proceeding not before the Division of
9 Administrative Hearings pursuant to chapter 120 or otherwise
10 completed by the department within 1 year after the filing of
11 a complaint. The department, for disciplinary cases under its
12 jurisdiction, must establish a uniform reporting system to
13 quarterly refer to each board the status of any investigation
14 or disciplinary proceeding that is not before the Division of
15 Administrative Hearings or otherwise completed by the
16 department within 1 year after the filing of the complaint.
17 Annually, the department, in consultation with the applicable
18 probable cause panel, must establish a plan to expedite or
19 otherwise close any investigation or disciplinary proceeding
20 that is not before the Division of Administrative Hearings or
21 otherwise completed by the department within 1 year after the
22 filing of the complaint. A probable cause panel or a board
23 may retain independent legal counsel, employ investigators,
24 and continue the investigation as it deems necessary; all
25 costs thereof shall be paid from a trust fund used by the
26 department to implement this chapter. All proceedings of the
27 probable cause panel are exempt from s. 120.525.
28 (5) A formal hearing before an administrative law
29 judge from the Division of Administrative Hearings shall be
30 held pursuant to chapter 120 if there are any disputed issues
31 of material fact. The administrative law judge shall issue a
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1 recommended order pursuant to chapter 120. If any party raises
2 an issue of disputed fact during an informal hearing, the
3 hearing shall be terminated and a formal hearing pursuant to
4 chapter 120 shall be held.
5 (6) The appropriate board, with those members of the
6 panel, if any, who reviewed the investigation pursuant to
7 subsection (4) being excused, or the department when there is
8 no board, shall determine and issue the final order in each
9 disciplinary case. Such order shall constitute final agency
10 action. Any consent order or agreed-upon settlement shall be
11 subject to the approval of the department.
12 (7) The department shall have standing to seek
13 judicial review of any final order of the board, pursuant to
14 s. 120.68.
15 (8) Any proceeding for the purpose of summary
16 suspension of a license, or for the restriction of the
17 license, of a licensee pursuant to s. 120.60(6) shall be
18 conducted by the secretary of the Department of Health or his
19 or her designee, as appropriate, who shall issue the final
20 summary order.
21 (9)(a) The department shall periodically notify the
22 person who filed the complaint, as well as the patient or the
23 patient's legal representative, of the status of the
24 investigation, indicating whether probable cause has been
25 found and the status of any civil action or administrative
26 proceeding or appeal.
27 (b) In any disciplinary case for which probable cause
28 has been found, the department shall provide to the person who
29 filed the complaint a copy of the administrative complaint
30 and:
31 1. A written explanation of how an administrative
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1 complaint is resolved by the disciplinary process.
2 2. A written explanation of how and when the person
3 may participate in the disciplinary process.
4 3. A written notice of any hearing before the Division
5 of Administrative Hearings or the regulatory board at which
6 final agency action may be taken.
7 (c) In any disciplinary case for which probable cause
8 is not found, the department shall so inform the person who
9 filed the complaint and notify that person that he or she may,
10 within 60 days, provide any additional information to the
11 department which may be relevant to the decision. To
12 facilitate the provision of additional information, the person
13 who filed the complaint may receive, upon request, a copy of
14 the department's expert report that supported the
15 recommendation for closure, if such a report was relied upon
16 by the department. In no way does this require the department
17 to procure an expert opinion or report if none was used.
18 Additionally, the identity of the expert shall remain
19 confidential. In any administrative proceeding under s.
20 120.57, the person who filed the disciplinary complaint shall
21 have the right to present oral or written communication
22 relating to the alleged disciplinary violations or to the
23 appropriate penalty.
24 (10) The complaint and all information obtained
25 pursuant to the investigation by the department are
26 confidential and exempt from s. 119.07(1) until 10 days after
27 probable cause has been found to exist by the probable cause
28 panel or by the department, or until the regulated
29 professional or subject of the investigation waives his or her
30 privilege of confidentiality, whichever occurs first. Upon
31 completion of the investigation and a recommendation by the
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1 department to find probable cause, and pursuant to a written
2 request by the subject or the subject's attorney, the
3 department shall provide the subject an opportunity to inspect
4 the investigative file or, at the subject's expense, forward
5 to the subject a copy of the investigative file.
6 Notwithstanding s. 456.057, the subject may inspect or receive
7 a copy of any expert witness report or patient record
8 connected with the investigation if the subject agrees in
9 writing to maintain the confidentiality of any information
10 received under this subsection until 10 days after probable
11 cause is found and to maintain the confidentiality of patient
12 records pursuant to s. 456.057. The subject may file a written
13 response to the information contained in the investigative
14 file. Such response must be filed within 20 days of mailing by
15 the department, unless an extension of time has been granted
16 by the department. This subsection does not prohibit the
17 department from providing such information to any law
18 enforcement agency or to any other regulatory agency.
19 (11) A privilege against civil liability is hereby
20 granted to any complainant or any witness with regard to
21 information furnished with respect to any investigation or
22 proceeding pursuant to this section, unless the complainant or
23 witness acted in bad faith or with malice in providing such
24 information.
25 (12)(a) No person who reports in any capacity, whether
26 or not required by law, information to the department with
27 regard to the incompetence, impairment, or unprofessional
28 conduct of any health care provider licensed under chapter
29 458, chapter 459, chapter 460, chapter 461, chapter 462,
30 chapter 463, chapter 464, chapter 465, or chapter 466 shall be
31 held liable in any civil action for reporting against such
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1 health care provider if such person acts without intentional
2 fraud or malice.
3 (b) No facility licensed under chapter 395, health
4 maintenance organization certificated under part I of chapter
5 641, physician licensed under chapter 458, or osteopathic
6 physician licensed under chapter 459 shall discharge, threaten
7 to discharge, intimidate, or coerce any employee or staff
8 member by reason of such employee's or staff member's report
9 to the department about a physician licensed under chapter
10 458, chapter 459, chapter 460, chapter 461, or chapter 466 who
11 may be guilty of incompetence, impairment, or unprofessional
12 conduct so long as such report is given without intentional
13 fraud or malice.
14 (c) In any civil suit brought outside the protections
15 of paragraphs (a) and (b) in which intentional fraud or malice
16 is alleged, the person alleging intentional fraud or malice
17 shall be liable for all court costs and for the other party's
18 reasonable attorney's fees if intentional fraud or malice is
19 not proved.
20 (13) Notwithstanding any provision of law to the
21 contrary, an administrative complaint against a licensee shall
22 be filed within 6 years after the time of the incident or
23 occurrence giving rise to the complaint against the licensee.
24 If such incident or occurrence involved criminal actions,
25 diversion of controlled substances, sexual misconduct, or
26 impairment by the licensee, this subsection does not apply to
27 bar initiation of an investigation or filing of an
28 administrative complaint beyond the 6-year timeframe. In those
29 cases covered by this subsection in which it can be shown that
30 fraud, concealment, or intentional misrepresentation of fact
31 prevented the discovery of the violation of law, the period of
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1 limitations is extended forward, but in no event to exceed 12
2 years after the time of the incident or occurrence.
3 Section 84. Sections 80-83 of this act shall apply to
4 any loan or scholarship that is in default on or after the
5 effective date of this act.
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7 (Redesignate subsequent sections.)
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9
10 ================ T I T L E A M E N D M E N T ===============
11 And the title is amended as follows:
12 On page 107, line 21, after the semicolon,
13
14 insert:
15 amending s. 456.074, F.S.; providing for an
16 emergency order suspending the license of any
17 health care practitioner who has defaulted on a
18 student loan issued or guaranteed by the state
19 or the Federal Government; amending s. 456.072,
20 F.S., and reenacting subsection (2), relating
21 to disciplinary actions; clarifying the ground
22 for disciplinary action for failing to perform
23 a statutory or legal obligation to include
24 failing to repay a student loan issued or
25 guaranteed by the state or the Federal
26 Government in accordance with the terms of the
27 loan and for failing to comply with service
28 scholarship obligations; providing penalties;
29 directing the Department of Health to obtain
30 certain information from the United States
31 Department of Health and Human Services on a
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1 monthly basis and to include certain
2 information in its annual report to the
3 Legislature; amending s. 456.073, F.S.,
4 relating to disciplinary proceedings, to
5 conform; providing applicability;
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