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

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    Amendment No. ___   Barcode 822716

                            CHAMBER ACTION
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10  ______________________________________________________________

11  Senator Wise moved the following amendment to amendment

12  (104940):

13

14         Senate Amendment (with title amendment) 

15         On page 97, between lines 23 and 24,

16

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.

  6

  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.

  6

  7  (Redesignate subsequent sections.)

  8

  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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