Senate Bill sb0028Ee1

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    CS for SB 28-E                                 First Engrossed



  1                      A bill to be entitled

  2         An act relating to health care; providing for

  3         specified licensing boards to adopt rules

  4         governing the prescribing of controlled

  5         substances; requiring certain health care

  6         providers to complete education courses

  7         relating to the prescription of controlled

  8         substances; providing penalties; providing for

  9         the emergency suspension of certain licenses

10         for prescribing violations; requiring the

11         Department of Health, the Department of Law

12         Enforcement, the Statewide Prosecutor, and

13         State Attorneys to share certain information

14         regarding health care practitioners; requiring

15         a report; requiring the Bureau of Pharmacy

16         Services of the Department of Health to

17         establish an electronic system for identifying

18         licensees and patients who engage in certain

19         fraudulent or illegal practices; authorizing

20         the Bureau of Pharmacy Services to contract for

21         the administration of the electronic monitoring

22         system for certain controlled substances;

23         establishing an advisory council and providing

24         for its membership, duties, staff, and

25         compensation; requiring the Bureau of Pharmacy

26         Services of the Department of Health to

27         recommend performance-based measures to the

28         Legislature for the electronic monitoring

29         system; requiring that the Bureau of Pharmacy

30         Services report to the Legislature on

31         implementation of the electronic monitoring


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    CS for SB 28-E                                 First Engrossed



 1         system; providing requirements for the report;

 2         providing duties of the Bureau of Pharmacy

 3         Services with respect to the purposes and use

 4         of the electronic monitoring system;

 5         prohibiting the use of specified funds for the

 6         electronic monitoring system; amending s.

 7         456.033, F.S.; eliminating certain requirements

 8         for HIV and AIDS education courses; amending s.

 9         456.072, F.S.; revising disciplinary penalties

10         applicable to health care practitioners;

11         reenacting ss. 456.082(2), 457.109(1) and (2),

12         458.331(1) and (2), 458.347(7)(g), 459.015(1)

13         and (2), 459.022(7)(f), 460.413(1) and (2),

14         461.013(1) and (2), 462.14(1) and (2),

15         463.016(1) and (2), 464.018(1) and (2),

16         465.016(1) and (2), 466.028(1) and (2),

17         467.203(1) and (2), 468.1295(1) and (2),

18         468.1755(1) and (2), 468.217(1) and (2),

19         468.365(1) and (2), 468.518(1) and (2),

20         468.719, 468.811, 478.52(1) and (2), 480.046(1)

21         and (2), 483.825(1) and (2), 483.901(6)(g) and

22         (h), 484.014(1) and (2), 484.056(1) and (2)(a),

23         486.125(1) and (2), 490.009, and 491.009, F.S.,

24         relating to grounds for disciplinary action

25         applicable to persons involved in health care

26         practice, including acupuncture, medical

27         practice, osteopathic medicine, chiropractic

28         medicine, podiatric medicine, naturopathy,

29         optometry, nursing, pharmacy, dentistry,

30         midwifery, speech-language pathology and

31         audiology, nursing home administration,


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 1         occupational therapy, respiratory therapy,

 2         dietetics and nutrition practice, athletic

 3         trainers, orthotics, prosthetics, and

 4         pedorthics, electrolysis, massage practice,

 5         clinical laboratory personnel, medical

 6         physicists, dispensing of optical devices and

 7         hearing aids, physical therapy practice,

 8         psychological services, and clinical,

 9         counseling, and psychotherapy services, to

10         incorporate the amendment to s. 456.072, F.S.,

11         in references thereto; amending s. 458.345,

12         F.S.; requiring certain resident physicians,

13         interns, and fellows to complete an educational

14         course in prescribing controlled substances;

15         amending s. 461.013, F.S.; prohibiting the

16         presigning of blank prescription forms and

17         providing penalties; amending s. 893.04, F.S.;

18         providing additional requirements for

19         pharmacists regarding the identification of

20         persons to whom controlled substances are

21         dispensed; prohibiting certain prescribing

22         practitioners from possessing, administering,

23         dispensing, or prescribing controlled

24         substances; directing local and regional boards

25         of education to prohibit personnel from

26         recommending use of psychotropic drugs on a

27         child; providing for construction of the act in

28         pari materia with laws enacted during the

29         Regular Session of the Legislature; providing

30         an appropriation; providing an effective date.

31  


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    CS for SB 28-E                                 First Engrossed



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

 2  

 3         Section 1.  Physicians; rules establishing prescribing

 4  guidelines.--To minimize the diversion and resultant abuse of

 5  controlled substances, the Board of Medicine and the Board of

 6  Osteopathic Medicine shall adopt rules to establish guidelines

 7  for prescribing controlled substances to patients in

 8  emergency-department settings. Such guidelines must allow

 9  physicians to provide legitimate medical treatment of acute

10  and chronic pain and require them to recognize and prevent

11  abuse of pain medications prescribed in emergency-department

12  settings. The guidelines must also consider requirements of

13  state and federal law and of the Joint Commission on the

14  Accreditation of Healthcare Organizations. Each board shall

15  consult with the Florida College of Emergency Physicians in

16  developing these guidelines.

17         Section 2.  Instruction required for certain licensees

18  in prescribing and pharmacology.--

19         (1)  The appropriate professional licensing board shall

20  require each person licensed under chapter 458, chapter 459,

21  chapter 461, chapter 462, part I of chapter 464, or chapter

22  466, Florida Statutes, to complete a 1-hour educational

23  course, approved by the board, on appropriate prescribing and

24  pharmacology of controlled substances, as part of the

25  licensee's initial license renewal after January 1, 2003. The

26  course shall provide education in the state and federal laws

27  and rules governing the prescribing and dispensing of

28  controlled substances; in appropriate evaluation of patients

29  for any risk of drug diversion and the resulting abuse of

30  controlled substances; in the use of informed consent and

31  other protocols, such as discussing the risks and benefits of


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    CS for SB 28-E                                 First Engrossed



 1  using controlled substances with patients, to prevent drug

 2  diversion; in the need to keep accurate and complete medical

 3  records to justify treatment with controlled substances; in

 4  addiction and substance-abuse issues with respect to patients;

 5  in the appropriate use of recognized pain-management

 6  guidelines; and in the need for consultation and referral of

 7  patients who are at risk for misuse of medication or diversion

 8  of controlled substances, when appropriate.

 9         (2)  The board may approve additional equivalent

10  courses that satisfy the requirements of subsection (1). Each

11  licensing board that requires a licensee to complete an

12  educational course pursuant to this section shall include the

13  hours required to complete the course in the total required

14  continuing educational requirements.

15         (3)  Any person who holds two or more licenses subject

16  to this section may satisfy the requirements of this section

17  by taking only one such board-approved course for relicensure

18  of all such licenses.

19         (4)  A licensee who fails to comply with this section

20  is subject to disciplinary action under each respective

21  practice act and section 456.072(1)(k), Florida Statutes. In

22  addition to disciplinary action by the board, the licensee

23  must complete the course no later than 1 year first receiving

24  notice of disciplinary action pursuant to this section. Unless

25  the board grants the licensee a waiver for good cause shown,

26  the licensee forfeits the privilege to prescribe or dispense

27  controlled substances until the licensee completes the course.

28         (5)  The board shall require, as a condition of

29  granting a license under the chapter specified in subsection

30  (1), that an applicant for initial licensure complete an

31  educational course set forth in subsection (1). An applicant


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 1  who has not taken a course at the time of licensure shall be

 2  allowed 6 months within which to complete this requirement.

 3         (6)  The board may adopt rules necessary to administer

 4  this section.

 5         Section 3.  Emergency suspension orders; controlled

 6  substances.--Upon receipt of sufficient evidence from any

 7  agency authorized to enforce chapter 893, Florida Statutes,

 8  regarding a violation of section 458.331(1)(q), section

 9  458.331(1)(r), section 458.331(1)(aa), section 459.015(1)(t),

10  section 459.015(1)(u), section 459.015(1)(ee), section

11  461.013(1)(o), section 461.013(1)(p), section 461.013(1)(dd),

12  section 462.14(1)(q), section 462.14(1)(r), section

13  462.14(1)(aa), section 464.018(1)(i), section 465.016(1)(e),

14  section 465.016(1)(i), section 466.028(1)(p), section

15  466.028(1)(q), section 466.028(1)(r), or section

16  466.028(1)(dd), Florida Statutes, or of chapter 893, Florida

17  Statutes, by a licensed health care practitioner who is

18  authorized to prescribe, dispense, or administer controlled

19  substances, the Department of Health shall review the case and

20  if there is a reason to believe that the practitioner is a

21  danger to the public health, safety, or welfare as set forth

22  in section 120.60(6), Florida Statutes, shall recommend the

23  suspension or restriction of the practitioner's license to the

24  Secretary of Health within 10 working days after receiving

25  such evidence. If a sufficient basis is found to exist, the

26  Secretary of Health must suspend or restrict the license of

27  the practitioner in accordance with section 120.60(6), Florida

28  Statutes.

29         Section 4.  Sharing of arrest, formal-charging, and

30  other information regarding health care practitioners.--

31  


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    CS for SB 28-E                                 First Engrossed



 1         (1)  In order to facilitate the efficiency of the

 2  Department of Health's investigation of applicable violations

 3  involving the diversion of controlled substances by such

 4  practitioners, or other violations of criminal law that may

 5  adversely affect a practitioner's licensed practice, any law

 6  enforcement agency that arrests a person known or suspected to

 7  be a health care practitioner licensed by the state shall

 8  promptly notify the Department of Health and provide it with:

 9         (a)  Notice of the arrest, including the name of the

10  arresting agency and lead investigator, detective, or officer

11  in the case;

12         (b)  The name of the person charged;

13         (c)  All known personal identifying information related

14  to the person arrested;

15         (d)  The date of the arrest;

16         (e)  The charges for which the person is arrested;

17         (f)  The agency case number assigned to the arrest; and

18         (g)  The arrest report, investigative report, or

19  statement of the allegations supporting the arrest.

20         (2)  A state attorney or the Statewide Prosecutor, upon

21  the filing of an indictment or information against a person

22  known or suspected to be a health care practitioner licensed

23  by the state, shall forward a copy of the indictment or

24  information to the Department of Health.

25         (3)  The Medical Examiners Commission within the

26  Department of Law Enforcement shall report to the Department

27  of Health quarterly any information, including the medical

28  history and medical care at the time of death, which is in its

29  possession regarding the deaths of persons whose proximate

30  cause of death was lethal levels of controlled substances in

31  


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    CS for SB 28-E                                 First Engrossed



 1  their bodies as such information has been reported to the

 2  commission by the medical examiners within the state.

 3         (4)  Upon receipt of arrest information from a law

 4  enforcement agency or notice of formal charging by a

 5  prosecuting entity, the Department of Health or the board

 6  having regulatory authority over the practitioner shall

 7  investigate any information received and determine whether it

 8  has reasonable grounds to believe that the practitioner has

 9  violated any law or rule relating to the practitioner's

10  practice and shall take appropriate licensure action as

11  provided by law or rule. If the Department of Health receives

12  information pursuant to this section which suggests that the

13  person arrested or charged is also licensed by the state in

14  another field or profession, the Department of Health shall

15  forward such information to the appropriate licensing entity

16  for review and appropriate licensure action as provided by law

17  or rule.

18         (5)  To help the Department of Health and regulatory

19  boards control the diversion and resultant abuse of controlled

20  substances, the Department of Health and the Department of Law

21  Enforcement shall study the feasibility of expanding the

22  electronic exchange of information to facilitate the transfer

23  to the Department of Health of criminal-history information

24  involving licensed health care practitioners who are

25  authorized to prescribe, administer, or dispense controlled

26  substances. The study must address whether the collection and

27  retention of fingerprint information concerning licensed

28  health care practitioners subject to the profiling provisions

29  of sections 456.039 and 456.0391, Florida Statutes, is

30  advisable as a means of better regulating such practitioners

31  and guarding against abuse of the privileges of such licensure


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    CS for SB 28-E                                 First Engrossed



 1  with respect to controlling the diversion and resultant abuse

 2  of controlled substances. The Department of Law Enforcement

 3  shall investigate the feasibility of the electronic

 4  transmission of information from medical examiners within this

 5  state to the Department of Health regarding autopsies and

 6  other public reports that attribute death to

 7  controlled-substance abuse. The Department of Law Enforcement,

 8  in consultation with the Department of Health, must submit a

 9  report of its findings to the Legislature by November 1, 2002.

10         Section 5.  Electronic monitoring system for

11  prescriptions.--

12         (1)  By July 1, 2003, the Bureau of Pharmacy Services

13  of the Department of Health shall design and establish an

14  electronic system consistent with the National Council of

15  Prescription Drug Programs (NCPDP) standards or the American

16  Society for Automation in Pharmacy (ASAP) standards to monitor

17  the prescribing of Schedule II controlled substances; other

18  drugs designated by rule by the Secretary of Health under this

19  section; and codeine, hydrocodone, dihydrocodeine,

20  ethylmorphine, and morphine, as scheduled in Schedule II and

21  Schedule III, by health care practitioners within the state or

22  the dispensing of such controlled substances to an address

23  within the state by a pharmacy permitted or registered by the

24  Board of Pharmacy. The Bureau of Pharmacy Services of the

25  Department of Health may administer or contract for the

26  administration of the electronic monitoring system established

27  under this section.

28         (2)  All Schedule II controlled substances; codeine,

29  hydrocodone, dihydrocodeine, ethylmorphine, and morphine as

30  scheduled in Schedule II and Schedule III; and any other drug

31  designated by the Secretary of Health under this section shall


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    CS for SB 28-E                                 First Engrossed



 1  be included in the electronic monitoring system. The Secretary

 2  of Health may, by rule, designate any other drug for inclusion

 3  in such system after consideration of the following:

 4         (a)  Whether the substance has been rescheduled by rule

 5  adopted by the United States Attorney General pursuant to s.

 6  201 of the Comprehensive Drug Abuse Prevention and Control Act

 7  of 1970, 21 U.S.C. s. 811.

 8         (b)  The substance's actual or relative potential for

 9  abuse as defined in chapter 893, Florida Statutes.

10         (c)  Scientific evidence of the substance's

11  pharmacological effect, if known.

12         (d)  The state of current scientific knowledge

13  regarding the substance.

14         (e)  The substance's history and current pattern of

15  abuse.

16         (f)  The scope, duration, and significance of abuse.

17         (g)  What, if any, risk there is to the public health.

18         (h)  The substance's psychic or physiological

19  dependence liability.

20         (i)  The recommendations of the prescription monitoring

21  advisory council.

22         (3)  Beginning September 1, 2002, or upon the effective

23  date of the rule prescribing the format for the electronic

24  monitoring system, whichever occurs later, each controlled

25  substance or drug subject to this section which is dispensed

26  in this state must be timely reported to the Bureau of

27  Pharmacy Services of the Department of Health. Such data must

28  be reported each time that:

29         (a)  A Schedule II controlled substance is dispensed;

30         (b)  A drug that is designated by the Secretary of

31  Health under subsection (2) is dispensed; or


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 1         (c)  Codeine, hydrocodone, dihydrocodeine,

 2  ethylmorphine, or morphine as scheduled in Schedule II and

 3  Schedule III is dispensed.

 4         (4)  This section does not apply to controlled

 5  substances or drugs:

 6         (a)  Ordered from an institutional pharmacy licensed

 7  under section 465.019(2), Florida Statutes, in accordance with

 8  the institutional policy for such controlled substances or

 9  drugs; or

10         (b)  Administered or prescribed by a health care

11  practitioner to a patient or resident receiving care from a

12  hospital, nursing home, assisted living facility, home health

13  agency, hospice, or intermediate care facility for the

14  developmentally disabled which is licensed in this state.

15         (5)  The data required under this section includes:

16         (a)  The patient's name.

17         (b)  The patient's address.

18         (c)  The national drug code number of the substance

19  dispensed.

20         (d)  The date that the substance is dispensed.

21         (e)  The quantity of substance dispensed.

22         (f)  The dispenser's National Association of Board's of

23  Pharmacy (NABP) number.

24         (g)  The prescribing practitioner's United States Drug

25  Enforcement Administration Number.

26         (6)  The information must be reported within 30 days

27  after the date the controlled substance or drug is dispensed.

28         (7)  A dispenser must transmit the information required

29  by this section in an electronic format approved by rule of

30  the Board of Pharmacy after consultation with the advisory

31  council and the Bureau of Pharmacy Services of the Department


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 1  of Health unless a specific waiver is granted to that

 2  dispenser by the Bureau of Pharmacy Services. The information

 3  transmitted may be maintained by any department receiving it

 4  for up to 12 months. However, any department receiving such

 5  information may maintain it longer than 12 months if the

 6  information is pertinent to an ongoing investigation arising

 7  under this act. Notwithstanding section 119.041, Florida

 8  Statutes, the information transmitted under this section for

 9  each prescription dispensed must be purged from the electronic

10  monitoring system within 2 years after the date of the

11  prescription. For purposes of this subsection, a refill of a

12  prescription is a new prescription.

13         (8)  The Bureau of Pharmacy Services of the Department

14  of Health shall establish a 17-member prescription-monitoring

15  advisory council to assist it in identifying drugs of abuse to

16  be recommended to the Secretary of Health and annually to the

17  Legislature for inclusion in the monitoring system and in

18  implementing the system.

19         (a)  The Governor shall appoint members to serve on the

20  advisory council. The members of the council shall include the

21  Secretary of Health or his or her designee, who shall serve as

22  the chairperson; the Attorney General or his or her designee;

23  the executive director of the Department of Law Enforcement or

24  his or her designee; the director of the Office of Drug

25  Control within the Executive Office of Governor or his or her

26  designee; a physician who is licensed in this state under

27  chapter 458, Florida Statutes, who is recommended by the

28  Florida Medical Association; a physician who is licensed in

29  this state under chapter 458 or chapter 459, Florida Statutes,

30  who is recommended by the Florida Academy of Pain Medicine; a

31  physician who is licensed in this state under chapter 459,


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    CS for SB 28-E                                 First Engrossed



 1  Florida Statutes, who is recommended by the Florida

 2  Osteopathic Medical Association; a physician who is licensed

 3  in this state under chapter 458 or chapter 459, Florida

 4  Statutes, who is recommended by the Florida Academy of Family

 5  Physicians; a podiatric physician who is licensed in this

 6  state under chapter 461, Florida Statutes, who is recommended

 7  by the Florida Podiatric Medical Association; a pharmacist who

 8  is licensed in this state under chapter 465, Florida Statutes,

 9  and who is recommended by the Florida Society of Health-System

10  Pharmacists; a pharmacist who is licensed in this state under

11  chapter 465, Florida Statutes, who is recommended by the

12  Florida Pharmacy Association; a pharmacist who is licensed in

13  this state under chapter 465, Florida Statutes, who is

14  recommended by the Florida Retail Federation; a pharmacist who

15  is licensed in this state under chapter 465, Florida Statutes,

16  who is recommended by the National Community Pharmacy

17  Association; a dentist who is licensed in this state under

18  chapter 466, Florida Statutes, who is recommended by the

19  Florida Dental Association; a veterinarian who is licensed in

20  this state under chapter 474, Florida Statutes, who is

21  recommended by the Florida Veterinary Medical Association; a

22  designee of the Florida Chapter of the National Association of

23  Drug Diversion Investigators who has expertise in the

24  investigation of drug-diversion cases; and a prosecutor who

25  has expertise in the criminal prosecution of drug-diversion

26  cases. At least one physician licensed under chapter 458 or

27  chapter 459, Florida Statutes, must specialize in or have

28  expertise in psychiatry, addiction, and substance abuse. At

29  least one physician licensed under chapter 458 or chapter 459,

30  Florida Statutes, must specialize in or have expertise in

31  hospice care and geriatrics.


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    CS for SB 28-E                                 First Engrossed



 1         (b)  The advisory council members shall meet no more

 2  often than quarterly at the call of the chairperson and shall

 3  serve without compensation. However, such members may receive

 4  reimbursement, as provided in section 112.061, Florida

 5  Statutes, for per diem and travel expenses incurred in the

 6  performance of their official duties.

 7         (c)  The Bureau of Pharmacy Services of the Department

 8  of Health shall provide staff and other administrative

 9  assistance that is reasonably necessary to assist the advisory

10  council in carrying out its responsibilities.

11         (9)  The Bureau of Pharmacy Services of the Department

12  of Health shall use the electronic system established under

13  this section for the purpose of identifying licensees and

14  patients who engage in fraudulent or illegal practices

15  relating to the use or prescribing of controlled substances.

16  Cases may be referred to the appropriate licensing board or to

17  an appropriate law enforcement agency for investigation if a

18  physician or dentist licensed under chapter 458, chapter 459,

19  chapter 461, or chapter 466 and an attorney for the state

20  determine that reasonable cause exists to believe that the

21  patient or licensee has engaged in fraudulent or illegal

22  activity. If the licensee holds a license under chapter 458,

23  chapter 459, chapter 461, or chapter 466, the consulting

24  physician or dentist must hold a license under the same

25  chapter as the licensee.

26         (10)  The Bureau of Pharmacy Services of the Department

27  of Health shall use the electronic monitoring system

28  established under this section to identify licensed health

29  care practitioners who may be involved, knowingly or

30  unknowingly, in the unauthorized prescribing, dispensing, or

31  receipt of controlled substances or drugs of abuse, whether by


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 1  means of prescription counterfeiting, fraud, forgery,

 2  over-prescribing, or any other method. The Bureau of Pharmacy

 3  Services shall immediately refer any case of possible

 4  unauthorized conduct identified through the electronic

 5  monitoring system to the appropriate licensing board, if the

 6  facts support a disciplinary complaint, or to an appropriate

 7  law enforcement agency. The Bureau of Pharmacy Services may

 8  provide information contained in the electronic monitoring

 9  system to a licensed health care practitioner for the purpose

10  of providing diagnostic or treatment services to an individual

11  patient or consumer under the practitioner's care.

12         (11)  Funds from the Medical Quality Assurance Trust

13  Fund may not be used to establish, use, or maintain the

14  electronic monitoring system.

15         (12)  The Bureau of Pharmacy Services of the Department

16  of Health shall adopt rules pursuant to section 120.536(1) and

17  section 120.574, Florida Statutes, necessary to administer

18  this section.

19         Section 6.  Subsections (1) and (9) of section 456.033,

20  Florida Statutes, are amended to read:

21         456.033  Requirement for instruction for certain

22  licensees on HIV and AIDS.--

23         (1)  The appropriate board shall require each person

24  licensed or certified under chapter 457; chapter 458; chapter

25  459; chapter 460; chapter 461; chapter 463; part I of chapter

26  464; chapter 465; chapter 466; part II, part III, part V, or

27  part X of chapter 468; or chapter 486 to complete a continuing

28  educational course, approved by the board, on human

29  immunodeficiency virus and acquired immune deficiency syndrome

30  as part of biennial relicensure or recertification. The course

31  shall consist of education on the modes of transmission,


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 1  infection control procedures, clinical management, and

 2  prevention of human immunodeficiency virus and acquired immune

 3  deficiency syndrome. Such course shall include information on

 4  current Florida law on acquired immune deficiency syndrome and

 5  its impact on testing, confidentiality of test results,

 6  treatment of patients, and any protocols and procedures

 7  applicable to human immunodeficiency virus counseling and

 8  testing, reporting, the offering of HIV testing to pregnant

 9  women, and partner notification issues pursuant to ss. 381.004

10  and 384.25.

11         (9)(a)  In lieu of completing a course as required in

12  subsection (1), the licensee may complete a course in

13  end-of-life care and palliative health care, so long as the

14  licensee completed an approved AIDS/HIV course in the

15  immediately preceding biennium.

16         (b)  In lieu of completing a course as required by

17  subsection (1), a person licensed under chapter 466 who has

18  completed an approved AIDS/HIV course in the immediately

19  preceding 2 years may complete a course approved by the Board

20  of Dentistry.

21         Section 7.  Paragraph (d) of subsection (2) of section

22  456.072, Florida Statutes, is amended to read:

23         456.072  Grounds for discipline; penalties;

24  enforcement.--

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

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

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

28  practice act, including conduct constituting a substantial

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

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

31  


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    CS for SB 28-E                                 First Engrossed



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

 2  penalties:

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

 4  $25,000 $10,000 for each count or separate offense. If the

 5  violation is for fraud or making a false or fraudulent

 6  representation, the board, or the department if there is no

 7  board, must impose a fine of $10,000 per count or offense.

 8  

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

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

11  sanctions are necessary to protect the public or to compensate

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

13  the disciplining authority consider and include in the order

14  requirements designed to rehabilitate the practitioner. All

15  costs associated with compliance with orders issued under this

16  subsection are the obligation of the practitioner.

17         Section 8.  For the purpose of incorporating the

18  amendment to section 456.072, Florida Statutes, in a reference

19  thereto, subsection (2) of section 456.082, Florida Statutes,

20  is reenacted to read:

21         456.082  Disclosure of confidential information.--

22         (2)  Any person who willfully violates any provision of

23  this section is guilty of a misdemeanor of the first degree,

24  punishable as provided in s. 775.082 or s. 775.083, and may be

25  subject to discipline pursuant to s. 456.072, and, if

26  applicable, shall be removed from office, employment, or the

27  contractual relationship.

28         Section 9.  For the purpose of incorporating the

29  amendment to section 456.072, Florida Statutes, in references

30  thereto, subsections (1) and (2) of section 457.109, Florida

31  Statutes, are reenacted to read:


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    CS for SB 28-E                                 First Engrossed



 1         457.109  Disciplinary actions; grounds; action by the

 2  board.--

 3         (1)  The following acts constitute grounds for denial

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

 5  456.072(2):

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

 7  license to practice acupuncture by bribery, by fraudulent

 8  misrepresentations, or through an error of the department.

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

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

11  licensure, by the licensing authority of another state,

12  territory, or country.

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

14  adjudication, in any jurisdiction of a crime which directly

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

16  practice acupuncture.  Any plea of nolo contendere shall be

17  considered a conviction for purposes of this chapter.

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

19  advertising which claims that acupuncture is useful in curing

20  any disease.

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 is in violation of this chapter or of the

25  rules of the department.

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

27  advising any unlicensed person to practice acupuncture

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

29         (h)  Failing to perform any statutory or legal

30  obligation placed upon a licensed acupuncturist.

31  


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    CS for SB 28-E                                 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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    CS for SB 28-E                                 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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    CS for SB 28-E                                 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 a lawful order of the board previously

 6  entered in a disciplinary hearing or failing to comply with a

 7  lawfully issued subpoena of the department.

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

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

10  preclude another licensee from lawfully advertising his or her

11  services.

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

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

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

15  regulations or reporting requirements relating to public

16  health and the control of contagious and infectious diseases.

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

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

19  the sterilization of needles and equipment and the disposal of

20  potentially infectious materials.

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         Section 10.  For the purpose of incorporating the

30  amendment to section 456.072, Florida Statutes, in references

31  


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    CS for SB 28-E                                 First Engrossed



 1  thereto, subsections (1) and (2) of section 458.331, Florida

 2  Statutes, are reenacted to read:

 3         458.331  Grounds for disciplinary action; action by the

 4  board and department.--

 5         (1)  The following acts constitute grounds for denial

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

 7  456.072(2):

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

 9  license to practice medicine by bribery, by fraudulent

10  misrepresentations, or through an error of the department or

11  the board.

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

13  medicine revoked, suspended, or otherwise acted against,

14  including the denial of licensure, by the licensing authority

15  of any jurisdiction, including its agencies or subdivisions.

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

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

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

19  the filing of administrative charges against the physician's

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

21  license.

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 medicine or to the ability to practice medicine.

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

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

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

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

30  approved pursuant to s. 456.076 shall provide the department

31  


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    CS for SB 28-E                                 First Engrossed



 1  or consultant with information in accordance with the

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

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

 4  unlicensed person to practice medicine contrary to this

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

 6         (g)  Failing to perform any statutory or legal

 7  obligation placed upon a licensed physician.

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

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

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

11  impeding or obstructing such filing or inducing another person

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

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

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

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

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

17  or person, either directly or indirectly, for patients

18  referred to providers of health care goods and services,

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

20  clinical laboratories, ambulatory surgical centers, or

21  pharmacies. The provisions of this paragraph shall not be

22  construed to prevent a physician from receiving a fee for

23  professional consultation services.

24         (j)  Exercising influence within a patient-physician

25  relationship for purposes of engaging a patient in sexual

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

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

28  with his or her physician.

29         (k)  Making deceptive, untrue, or fraudulent

30  representations in or related to the practice of medicine or

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


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    CS for SB 28-E                                 First Engrossed



 1         (l)  Soliciting patients, either personally or through

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

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

 4  solicitation is any communication which directly or implicitly

 5  requests an immediate oral response from the recipient.

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

 7  rule in consultation with the board, medical records that

 8  identify the licensed physician or the physician extender and

 9  supervising physician by name and professional title who is or

10  are responsible for rendering, ordering, supervising, or

11  billing for each diagnostic or treatment procedure and that

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

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

14  results; records of drugs prescribed, dispensed, or

15  administered; and reports of consultations and

16  hospitalizations.

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

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

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

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

21  of services, goods, appliances, or drugs.

22         (o)  Promoting or advertising on any prescription form

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

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

25         (p)  Performing professional services which have not

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

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

28  766.103, or s. 768.13.

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

30  otherwise preparing a legend drug, including any controlled

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


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    CS for SB 28-E                                 First Engrossed



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

 2  shall be legally presumed that prescribing, dispensing,

 3  administering, mixing, or otherwise preparing legend drugs,

 4  including all controlled substances, inappropriately or in

 5  excessive or inappropriate quantities is not in the best

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

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

 8  her intent.

 9         (r)  Prescribing, dispensing, or administering any

10  medicinal drug appearing on any schedule set forth in chapter

11  893 by the physician to himself or herself, except one

12  prescribed, dispensed, or administered to the physician by

13  another practitioner authorized to prescribe, dispense, or

14  administer medicinal drugs.

15         (s)  Being unable to practice medicine with reasonable

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

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

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

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

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

21  probable cause exists to believe that the licensee is unable

22  to practice medicine because of the reasons stated in this

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

24  licensee to submit to a mental or physical examination by

25  physicians designated by the department. If the licensee

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

27  directing such examination may be enforced by filing a

28  petition for enforcement in the circuit court where the

29  licensee resides or does business. The licensee against whom

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

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


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    CS for SB 28-E                                 First Engrossed



 1  proceedings shall be closed to the public.  The department

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

 3  51.011. A licensee or certificateholder affected under this

 4  paragraph shall at reasonable intervals be afforded an

 5  opportunity to demonstrate that he or she can resume the

 6  competent practice of medicine with reasonable skill and

 7  safety to patients.

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

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

10  treatment which is recognized by a reasonably prudent similar

11  physician as being acceptable under similar conditions and

12  circumstances.  The board shall give great weight to the

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

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

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

16  malpractice within the previous 5-year period resulting in

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

18  claimant in a judgment or settlement and which incidents

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

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

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

22  is recognized by a reasonably prudent similar physician as

23  being acceptable under similar conditions and circumstances,"

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

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

26  construed to require that a physician be incompetent to

27  practice medicine in order to be disciplined pursuant to this

28  paragraph.

29         (u)  Performing any procedure or prescribing any

30  therapy which, by the prevailing standards of medical practice

31  in the community, would constitute experimentation on a human


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    CS for SB 28-E                                 First Engrossed



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

 2  consent.

 3         (v)  Practicing or offering to practice beyond the

 4  scope permitted by law or accepting and performing

 5  professional responsibilities which the licensee knows or has

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

 7  board may establish by rule standards of practice and

 8  standards of care for particular practice settings, including,

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

10  supplies, medications including anesthetics, assistance of and

11  delegation to other personnel, transfer agreements,

12  sterilization, records, performance of complex or multiple

13  procedures, informed consent, and policy and procedure

14  manuals.

15         (w)  Delegating professional responsibilities to a

16  person when the licensee delegating such responsibilities

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

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

19         (x)  Violating a lawful order of the board or

20  department previously entered in a disciplinary hearing or

21  failing to comply with a lawfully issued subpoena of the

22  department.

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

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

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

26  lawfully advertising his or her services.

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

28  of, an unlawful termination of pregnancy.

29         (aa)  Presigning blank prescription forms.

30         (bb)  Prescribing any medicinal drug appearing on

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


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    CS for SB 28-E                                 First Engrossed



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

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

 3  amphetamine or a Schedule II sympathomimetic amine drug or any

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

 5  person except for:

 6         1.  The treatment of narcolepsy; hyperkinesis;

 7  behavioral syndrome characterized by the developmentally

 8  inappropriate symptoms of moderate to severe distractability,

 9  short attention span, hyperactivity, emotional lability, and

10  impulsivity; or drug-induced brain dysfunction;

11         2.  The differential diagnostic psychiatric evaluation

12  of depression or the treatment of depression shown to be

13  refractory to other therapeutic modalities; or

14         3.  The clinical investigation of the effects of such

15  drugs or compounds when an investigative protocol therefor is

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

17  investigation is begun.

18         (dd)  Failing to supervise adequately the activities of

19  those physician assistants, paramedics, emergency medical

20  technicians, or advanced registered nurse practitioners acting

21  under the supervision of the physician.

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

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

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

25  hormones for the purpose of muscle building or to enhance

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

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

28  injured muscle. A prescription written for the drug products

29  listed above may be dispensed by the pharmacist with the

30  presumption that the prescription is for legitimate medical

31  use.


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    CS for SB 28-E                                 First Engrossed



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

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

 3  person.

 4         (gg)  Misrepresenting or concealing a material fact at

 5  any time during any phase of a licensing or disciplinary

 6  process or procedure.

 7         (hh)  Improperly interfering with an investigation or

 8  with any disciplinary proceeding.

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

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

11  physician assistant knows has violated the grounds for

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

13  is licensed and who provides health care services in a

14  facility licensed under chapter 395, or a health maintenance

15  organization certificated under part I of chapter 641, in

16  which the physician or physician assistant also provides

17  services.

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

19  provided corroborating written medical expert opinion attached

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

21  any statutorily required response rejecting a claim, without

22  reasonable investigation.

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

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

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

26  state, territory, or country.

27         (ll)  Advertising or holding oneself out as a

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

29  458.3312, in violation of this chapter.

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

31  381.026 and 381.0261 to provide patients with information


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    CS for SB 28-E                                 First Engrossed



 1  about their patient rights and how to file a patient

 2  complaint.

 3         (nn)  Violating any provision of this chapter or

 4  chapter 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). In determining what action is appropriate, the

11  board must first consider what sanctions are necessary to

12  protect the public or to compensate the patient. Only after

13  those sanctions have been imposed may the disciplining

14  authority consider and include in the order requirements

15  designed to rehabilitate the physician. All costs associated

16  with compliance with orders issued under this subsection are

17  the obligation of the physician.

18         Section 11.  For the purpose of incorporating the

19  amendment to section 456.072, Florida Statutes, in a reference

20  thereto, paragraph (g) of subsection (7) of section 458.347,

21  Florida Statutes, is reenacted to read:

22         458.347  Physician assistants.--

23         (7)  PHYSICIAN ASSISTANT LICENSURE.--

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

25  penalties authorized under ss. 456.072 and 458.331(2) upon a

26  physician assistant if the physician assistant or the

27  supervising physician has been found guilty of or is being

28  investigated for any act that constitutes a violation of this

29  chapter or chapter 456.

30         Section 12.  For the purpose of incorporating the

31  amendment to section 456.072, Florida Statutes, in references


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    CS for SB 28-E                                 First Engrossed



 1  thereto, subsections (1) and (2) of section 459.015, Florida

 2  Statutes, are reenacted to read:

 3         459.015  Grounds for disciplinary action; action by the

 4  board and department.--

 5         (1)  The following acts constitute grounds for denial

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

 7  456.072(2):

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

 9  license to practice osteopathic medicine or a certificate

10  issued under this chapter by bribery, by fraudulent

11  misrepresentations, or through an error of the department or

12  the board.

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

14  osteopathic medicine revoked, suspended, or otherwise acted

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

16  authority of any jurisdiction, including its agencies or

17  subdivisions.  The licensing authority's acceptance of a

18  physician's relinquishment of license, stipulation, consent

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

20  anticipation of the filing of administrative charges against

21  the physician shall be construed as action against the

22  physician's license.

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

24  adjudication, of a crime in any jurisdiction which directly

25  relates to the practice of osteopathic medicine or to the

26  ability to practice osteopathic medicine.  A plea of nolo

27  contendere shall create a rebuttable presumption of guilt to

28  the underlying criminal charges.

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

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

31  department's impaired professional consultant any person who


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    CS for SB 28-E                                 First Engrossed



 1  the licensee or certificateholder knows is in violation of

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

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

 4  provide the department or consultant with information in

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

 6  and (6).

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

 8  unlicensed person to practice osteopathic medicine contrary to

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

10         (g)  Failing to perform any statutory or legal

11  obligation placed upon a licensed osteopathic physician.

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

13  or administrative proceedings relating to the practice of

14  medicine or the delivery of health care services.

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

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

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

18  impeding or obstructing such filing, or inducing another

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

20  those which are signed in the capacity as a licensed

21  osteopathic physician.

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

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

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

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

26  entity, for patients referred to providers of health care

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

28  nursing homes, clinical laboratories, ambulatory surgical

29  centers, or pharmacies.  The provisions of this paragraph

30  shall not be construed to prevent an osteopathic physician

31  from receiving a fee for professional consultation services.


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    CS for SB 28-E                                 First Engrossed



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

 2  patient's participation in pending or past litigation or

 3  participation in any disciplinary action conducted pursuant to

 4  this chapter, unless such litigation or disciplinary action

 5  directly involves the osteopathic physician requested to

 6  provide services.

 7         (l)  Exercising influence within a patient-physician

 8  relationship for purposes of engaging a patient in sexual

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

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

11  with his or her physician.

12         (m)  Making deceptive, untrue, or fraudulent

13  representations in or related to the practice of osteopathic

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

15  osteopathic medicine.

16         (n)  Soliciting patients, either personally or through

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

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

19  solicitation is any communication which directly or implicitly

20  requests an immediate oral response from the recipient.

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

22  rule in consultation with the board, medical records that

23  identify the licensed osteopathic physician or the osteopathic

24  physician extender and supervising osteopathic physician by

25  name and professional title who is or are responsible for

26  rendering, ordering, supervising, or billing for each

27  diagnostic or treatment procedure and that justify the course

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

29  patient histories; examination results; test results; records

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

31  of consultations and hospitalizations.


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    CS for SB 28-E                                 First Engrossed



 1         (p)  Fraudulently altering or destroying records

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

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

 4  results.

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

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

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

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

 9  services, goods, appliances, or drugs.

10         (r)  Promoting or advertising on any prescription form

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

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

13  choice."

14         (s)  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         (t)  Prescribing, dispensing, administering, supplying,

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

20  including all controlled substances, other than in the course

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

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

23  prescribing, dispensing, administering, supplying, selling,

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

25  all controlled substances, inappropriately or in excessive or

26  inappropriate quantities is not in the best interest of the

27  patient and is not in the course of the osteopathic

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

29  her intent.

30         (u)  Prescribing or dispensing any medicinal drug

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


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    CS for SB 28-E                                 First Engrossed



 1  osteopathic physician for himself or herself or administering

 2  any such drug by the osteopathic physician to himself or

 3  herself unless such drug is prescribed for the osteopathic

 4  physician by another practitioner authorized to prescribe

 5  medicinal drugs.

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

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

 8  person.

 9         (w)  Being unable to practice osteopathic medicine with

10  reasonable skill and safety to patients by reason of illness

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

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

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

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

15  that probable cause exists to believe that the licensee is

16  unable to practice medicine because of the reasons stated in

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

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

19  physicians designated by the department.  If the licensee

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

21  directing such examination may be enforced by filing a

22  petition for enforcement in the circuit court where the

23  licensee resides or does business.  The licensee against whom

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

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

26  proceedings shall be closed to the public.  The department

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

28  51.011.  A licensee or certificateholder affected under this

29  paragraph shall at reasonable intervals be afforded an

30  opportunity to demonstrate that he or she can resume the

31  


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    CS for SB 28-E                                 First Engrossed



 1  competent practice of medicine with reasonable skill and

 2  safety to patients.

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

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

 5  and treatment which is recognized by a reasonably prudent

 6  similar osteopathic physician as being acceptable under

 7  similar conditions and circumstances. The board shall give

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

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

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

11  claims for medical malpractice within the previous 5-year

12  period resulting in indemnities being paid in excess of

13  $25,000 each to the claimant in a judgment or settlement and

14  which incidents involved negligent conduct by the osteopathic

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

16  "the failure to practice osteopathic medicine with that level

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

18  reasonably prudent similar osteopathic physician as being

19  acceptable under similar conditions and circumstances" shall

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

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

22  require that an osteopathic physician be incompetent to

23  practice osteopathic medicine in order to be disciplined

24  pursuant to this paragraph.  A recommended order by an

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

26  a violation under this paragraph shall specify whether the

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

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

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

30  is recognized as being acceptable under similar conditions and

31  


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    CS for SB 28-E                                 First Engrossed



 1  circumstances," or any combination thereof, and any

 2  publication by the board shall so specify.

 3         (y)  Performing any procedure or prescribing any

 4  therapy which, by the prevailing standards of medical practice

 5  in the community, would constitute experimentation on human

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

 7  consent.

 8         (z)  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 he or she is not competent to perform. The

12  board may establish by rule standards of practice and

13  standards of care for particular practice settings, including,

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

15  supplies, medications including anesthetics, assistance of and

16  delegation to other personnel, transfer agreements,

17  sterilization, records, performance of complex or multiple

18  procedures, informed consent, and policy and procedure

19  manuals.

20         (aa)  Delegating professional responsibilities to a

21  person when the licensee delegating such responsibilities

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

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

24         (bb)  Violating a lawful order of the board or

25  department previously entered in a disciplinary hearing or

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

27  or department.

28         (cc)  Conspiring with another licensee or with any

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

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

31  from lawfully advertising his or her services.


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    CS for SB 28-E                                 First Engrossed



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

 2  of, an unlawful termination of pregnancy.

 3         (ee)  Presigning blank prescription forms.

 4         (ff)  Prescribing any medicinal drug appearing on

 5  Schedule II in chapter 893 by the osteopathic physician for

 6  office use.

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

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

 9  amphetamine or Schedule II sympathomimetic amine drug or any

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

11  person except for:

12         1.  The treatment of narcolepsy; hyperkinesis;

13  behavioral syndrome characterized by the developmentally

14  inappropriate symptoms of moderate to severe distractability,

15  short attention span, hyperactivity, emotional lability, and

16  impulsivity; or drug-induced brain dysfunction;

17         2.  The differential diagnostic psychiatric evaluation

18  of depression or the treatment of depression shown to be

19  refractory to other therapeutic modalities; or

20         3.  The clinical investigation of the effects of such

21  drugs or compounds when an investigative protocol therefor is

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

23  investigation is begun.

24         (hh)  Failing to supervise adequately the activities of

25  those physician assistants, paramedics, emergency medical

26  technicians, advanced registered nurse practitioners, or other

27  persons acting under the supervision of the osteopathic

28  physician.

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

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

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


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    CS for SB 28-E                                 First Engrossed



 1  hormones for the purpose of muscle building or to enhance

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

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

 4  injured muscle.  A prescription written for the drug products

 5  listed above may be dispensed by the pharmacist with the

 6  presumption that the prescription is for legitimate medical

 7  use.

 8         (jj)  Misrepresenting or concealing a material fact at

 9  any time during any phase of a licensing or disciplinary

10  process or procedure.

11         (kk)  Improperly interfering with an investigation or

12  with any disciplinary proceeding.

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

14  under chapter 458 or under this chapter who the osteopathic

15  physician or physician assistant knows has violated the

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

17  that person is licensed and who provides health care services

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

19  maintenance organization certificated under part I of chapter

20  641, in which the osteopathic physician or physician assistant

21  also provides services.

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

23  provided corroborating written medical expert opinion attached

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

25  any statutorily required response rejecting a claim, without

26  reasonable investigation.

27         (nn)  Advertising or holding oneself out as a

28  board-certified specialist in violation of this chapter.

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

30  381.026 and 381.0261 to provide patients with information

31  


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    CS for SB 28-E                                 First Engrossed



 1  about their patient rights and how to file a patient

 2  complaint.

 3         (pp)  Violating any provision of this chapter or

 4  chapter 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). In determining what action is appropriate, the

11  board must first consider what sanctions are necessary to

12  protect the public or to compensate the patient.  Only after

13  those sanctions have been imposed may the disciplining

14  authority consider and include in the order requirements

15  designed to rehabilitate the physician.  All costs associated

16  with compliance with orders issued under this subsection are

17  the obligation of the physician.

18         Section 13.  For the purpose of incorporating the

19  amendment to section 456.072, Florida Statutes, in a reference

20  thereto, paragraph (f) of subsection (7) of section 459.022,

21  Florida Statutes, is reenacted to read:

22         459.022  Physician assistants.--

23         (7)  PHYSICIAN ASSISTANT LICENSURE.--

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

25  of the penalties authorized under ss. 456.072 and 459.015(2)

26  upon a physician assistant if the physician assistant or the

27  supervising physician has been found guilty of or is being

28  investigated for any act that constitutes a violation of this

29  chapter or chapter 456.

30         Section 14.  For the purpose of incorporating the

31  amendment to section 456.072, Florida Statutes, in references


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    CS for SB 28-E                                 First Engrossed



 1  thereto, subsections (1) and (2) of section 460.413, Florida

 2  Statutes, are reenacted to read:

 3         460.413  Grounds for disciplinary action; action by

 4  board or department.--

 5         (1)  The following acts constitute grounds for denial

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

 7  456.072(2):

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

 9  license to practice chiropractic medicine by bribery, by

10  fraudulent misrepresentations, or through an error of the

11  department or the board.

12         (b)  Having a license to practice chiropractic medicine

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

14  denial of licensure, by the licensing authority of another

15  state, territory, or country.

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

17  adjudication, of a crime in any jurisdiction which directly

18  relates to the practice of chiropractic medicine or to the

19  ability to practice chiropractic medicine. Any plea of nolo

20  contendere shall be considered a conviction for purposes of

21  this chapter.

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

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

24  any advertisement which does not contain an assertion or

25  statement which would identify herself or himself as a

26  chiropractic physician or identify such chiropractic clinic or

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

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

29  institution.

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

31  under a name other than one's own.


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    CS for SB 28-E                                 First Engrossed



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

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

 3  rules of the department or the board.

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

 5  unlicensed person to practice chiropractic medicine contrary

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

 7         (i)  Failing to perform any statutory or legal

 8  obligation placed upon a licensed chiropractic physician.

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

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

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

12  impeding or obstructing such filing or inducing another person

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

14  which are signed in the capacity of a licensed chiropractic

15  physician.

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

17  fraudulent representations in the practice of chiropractic

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

19  chiropractic medicine when such trick or scheme fails to

20  conform to the generally prevailing standards of treatment in

21  the chiropractic medical community.

22         (l)  Soliciting patients either personally or through

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

24  solicitations approved by rule of the board.

25         (m)  Failing to keep legibly written chiropractic

26  medical records that identify clearly by name and credentials

27  the licensed chiropractic physician rendering, ordering,

28  supervising, or billing for each examination or treatment

29  procedure and that justify the course of treatment of the

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

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


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    CS for SB 28-E                                 First Engrossed



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

 2  for more than 4 years.

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

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

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

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

 7  services, goods or appliances, or drugs.

 8         (o)  Performing professional services which have not

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

10  legal representative except as provided in ss. 743.064,

11  766.103, and 768.13.

12         (p)  Prescribing, dispensing, or administering any

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

14  performing any surgery, or practicing obstetrics.

15         (q)  Being unable to practice chiropractic medicine

16  with reasonable skill and safety to patients by reason of

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

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

19  physical condition.  In enforcing this paragraph, upon a

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

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

22  probable cause exists to believe that the licensee is unable

23  to practice the profession because of reasons stated in this

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

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

26  physician designated by the department. If the licensee

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

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

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

30  The department shall be entitled to the summary procedure

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


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    CS for SB 28-E                                 First Engrossed



 1  compelled mental or physical examination shall not be used

 2  against a licensee in any other proceedings.  A chiropractic

 3  physician affected under this paragraph shall at reasonable

 4  intervals be afforded an opportunity to demonstrate that she

 5  or he can resume the competent practice of chiropractic

 6  medicine with reasonable skill and safety to patients.

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

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

 9  treatment which is recognized by a reasonably prudent

10  chiropractic physician as being acceptable under similar

11  conditions and circumstances. The board shall give great

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

13  interpreting this provision. A recommended order by an

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

15  finding a violation under this section shall specify whether

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

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

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

19  is recognized as being acceptable under similar conditions and

20  circumstances" or any combination thereof, and any publication

21  by the board shall so specify.

22         (s)  Performing any procedure or prescribing any

23  therapy which, by the prevailing standards of chiropractic

24  medical practice in the community, would constitute

25  experimentation on human subjects, without first obtaining

26  full, informed, and written consent.

27         (t)  Practicing or offering to practice beyond the

28  scope permitted by law or accepting and performing

29  professional responsibilities which the licensee knows or has

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

31  


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    CS for SB 28-E                                 First Engrossed



 1         (u)  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         (v)  Violating a lawful order of the board or

 6  department previously entered in a disciplinary hearing or

 7  failing to comply with a lawfully issued subpoena of the

 8  department.

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

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

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

12  lawfully advertising her or his services.

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

14  service or treatment which was not actually provided to a

15  patient.

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

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

18  property entrusted to a chiropractic physician for a specific

19  purpose, including advances for costs and expenses of

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

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

22  patients coming into the hands of a chiropractic physician are

23  not subject to counterclaim or setoff for chiropractic

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

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

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

27  other property upon which the chiropractic physician has a

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

29  fees from the proceeds of transactions for examinations or

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

31  not grounds for disciplinary proceedings unless the amount


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    CS for SB 28-E                                 First Engrossed



 1  demanded is clearly excessive or extortionate, or the demand

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

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

 4  be deposited in one or more identifiable bank accounts

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

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

 7  physician shall be deposited therein except as follows:

 8         1.  Funds reasonably sufficient to pay bank charges may

 9  be deposited therein.

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

11  presently or potentially to the physician must be deposited

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

13  withdrawn when due unless the right of the physician to

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

15  disputed portion shall not be withdrawn until the dispute is

16  finally resolved.

17  

18  Every chiropractic physician shall maintain complete records

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

20  coming into the possession of the physician and render

21  appropriate accounts to the patient regarding them. In

22  addition, every chiropractic physician shall promptly pay or

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

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

25  the physician which the patient is entitled to receive.

26         (z)  Offering to accept or accepting payment for

27  services rendered by assignment from any third-party payor

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

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

30  or acceptance is to eliminate or give the impression of

31  


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    CS for SB 28-E                                 First Engrossed



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

 2  deductions applicable in the policy of the insured.

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

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

 5  service or treatment of the insured.

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

 7  treatment which is different from the fee or charge the

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

 9  treatment.

10         (cc)  Advertising any reduced or discounted fees for

11  services or treatments, or advertising any free services or

12  treatments, without prominently stating in the advertisement

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

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

15  offering.

16         (dd)  Using acupuncture without being certified

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

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

19  under chapter 458 or under chapter 459 who the chiropractic

20  physician or chiropractic physician's assistant knows has

21  violated the grounds for disciplinary action set out in the

22  law under which that person is licensed and who provides

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

24  or a health maintenance organization certificated under part I

25  of chapter 641, in which the chiropractic physician or

26  chiropractic physician's assistant also provides services.

27         (ff)  Violating any provision of this chapter or

28  chapter 456, or any rules adopted pursuant thereto.

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

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

31  applicant for licensure or licensee who is found guilty of


                                  47

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    CS for SB 28-E                                 First Engrossed



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

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

 3  456.072(1). In determining what action is appropriate, the

 4  board must first consider what sanctions are necessary to

 5  protect the public or to compensate the patient. Only after

 6  those sanctions have been imposed may the disciplining

 7  authority consider and include in the order requirements

 8  designed to rehabilitate the chiropractic physician. All costs

 9  associated with compliance with orders issued under this

10  subsection are the obligation of the chiropractic physician.

11         Section 15.  For the purpose of incorporating the

12  amendment to section 456.072, Florida Statutes, in references

13  thereto, subsections (1) and (2) of section 462.14, Florida

14  Statutes, are reenacted to read:

15         462.14  Grounds for disciplinary action; action by the

16  department.--

17         (1)  The following acts constitute grounds for denial

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

19  456.072(2):

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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    CS for SB 28-E                                 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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    CS for SB 28-E                                 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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    CS for SB 28-E                                 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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    CS for SB 28-E                                 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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    CS for SB 28-E                                 First Engrossed



 1         (x)  Violating a lawful order of the department

 2  previously entered in a disciplinary hearing or failing to

 3  comply with a lawfully issued subpoena of the department.

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

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

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

 7  lawfully advertising her or his services.

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

 9  of, an unlawful termination of pregnancy.

10         (aa)  Presigning blank prescription forms.

11         (bb)  Prescribing by the naturopathic physician for

12  office use any medicinal drug appearing on Schedule II in

13  chapter 893.

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

15  supplying, selling, or giving any drug which is an amphetamine

16  or sympathomimetic amine drug, or a compound designated

17  pursuant to chapter 893 as a Schedule II controlled substance

18  to or for any person except for:

19         1.  The treatment of narcolepsy; hyperkinesis;

20  behavioral syndrome in children characterized by the

21  developmentally inappropriate symptoms of moderate to severe

22  distractability, short attention span, hyperactivity,

23  emotional lability, and impulsivity; or drug-induced brain

24  dysfunction.

25         2.  The differential diagnostic psychiatric evaluation

26  of depression or the treatment of depression shown to be

27  refractory to other therapeutic modalities.

28         3.  The clinical investigation of the effects of such

29  drugs or compounds when an investigative protocol therefor is

30  submitted to, reviewed, and approved by the department before

31  such investigation is begun.


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    CS for SB 28-E                                 First Engrossed



 1         (dd)  Prescribing, ordering, dispensing, administering,

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

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

 4  hormones for the purpose of muscle building or to enhance

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

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

 7  injured muscle.  A prescription written for the drug products

 8  listed above may be dispensed by the pharmacist with the

 9  presumption that the prescription is for legitimate medical

10  use.

11         (ee)  Violating any provision of this chapter or

12  chapter 456, or any rules adopted pursuant thereto.

13         (2)  The department may enter an order denying

14  licensure or imposing any of the penalties in s. 456.072(2)

15  against any applicant for licensure or licensee who is found

16  guilty of violating any provision of subsection (1) of this

17  section or who is found guilty of violating any provision of

18  s. 456.072(1).

19         Section 16.  For the purpose of incorporating the

20  amendment to section 456.072, Florida Statutes, in references

21  thereto, subsections (1) and (2) of section 463.016, Florida

22  Statutes, are reenacted to read:

23         463.016  Grounds for disciplinary action; action by the

24  board.--

25         (1)  The following acts constitute grounds for denial

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

27  456.072(2):

28         (a)  Procuring or attempting to procure a license to

29  practice optometry by bribery, by fraudulent

30  misrepresentations, or through an error of the department or

31  board.


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    CS for SB 28-E                                 First Engrossed



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

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

 3  representation.

 4         (c)  Having a license to practice optometry revoked,

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

 6  licensure, by the licensing authority of another jurisdiction.

 7         (d)  Being convicted or found guilty, regardless of

 8  adjudication, of a crime in any jurisdiction which directly

 9  relates to the practice of optometry or to the ability to

10  practice optometry.  Any plea of nolo contendere shall be

11  considered a conviction for the purposes of this chapter.

12         (e)  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 state or

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

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

17  shall include only those which are signed by the licensee in

18  her or his capacity as a licensed practitioner.

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

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

21  content.

22         (g)  Fraud or deceit, negligence or incompetency, or

23  misconduct in the practice of optometry.

24         (h)  A violation or repeated violations of provisions

25  of this chapter, or of chapter 456, and any rules promulgated

26  pursuant thereto.

27         (i)  Conspiring with another licensee or with any

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

29  coerce, intimidate, or preclude another licensee from lawfully

30  advertising her or his services.

31  


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    CS for SB 28-E                                 First Engrossed



 1         (j)  Willfully submitting to any third-party payor a

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

 3         (k)  Failing to keep written optometric records about

 4  the examinations, treatments, and prescriptions for patients.

 5         (l)  Willfully failing to report any person who the

 6  licensee knows is in violation of this chapter or of rules of

 7  the department or the board.

 8         (m)  Gross or repeated malpractice.

 9         (n)  Practicing with a revoked, suspended, inactive, or

10  delinquent license.

11         (o)  Being unable to practice optometry with reasonable

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

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

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

15  A licensed practitioner affected under this paragraph shall at

16  reasonable intervals be afforded an opportunity to demonstrate

17  that she or he can resume the competent practice of optometry

18  with reasonable skill and safety to patients.

19         (p)  Having been disciplined by a regulatory agency in

20  another state for any offense that would constitute a

21  violation of Florida laws or rules regulating optometry.

22         (q)  Violating any provision of s. 463.014 or s.

23  463.015.

24         (r)  Violating any lawful order of the board or

25  department, previously entered in a disciplinary hearing, or

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

27  or department.

28         (s)  Practicing or offering to practice beyond the

29  scope permitted by law or accepting and performing

30  professional responsibilities which the licensed practitioner

31  


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    CS for SB 28-E                                 First Engrossed



 1  knows or has reason to know she or he is not competent to

 2  perform.

 3         (t)  Violating any provision of this chapter or chapter

 4  456, or any rules adopted pursuant thereto.

 5         (2)  The department may enter an order imposing any of

 6  the penalties in s. 456.072(2) against any licensee who is

 7  found guilty of violating any provision of subsection (1) of

 8  this section or who is found guilty of violating any provision

 9  of s. 456.072(1).

10         Section 17.  For the purpose of incorporating the

11  amendment to section 456.072, Florida Statutes, in references

12  thereto, subsections (1) and (2) of section 464.018, Florida

13  Statutes, are reenacted to read:

14         464.018  Disciplinary actions.--

15         (1)  The following acts constitute grounds for denial

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

17  456.072(2):

18         (a)  Procuring, attempting to procure, or renewing a

19  license to practice nursing by bribery, by knowing

20  misrepresentations, or through an error of the department or

21  the board.

22         (b)  Having a license to practice nursing revoked,

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

24  licensure, by the licensing authority of another state,

25  territory, or country.

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

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

28  crime in any jurisdiction which directly relates to the

29  practice of nursing or to the ability to practice nursing.

30         (d)  Being found guilty, regardless of adjudication, of

31  any of the following offenses:


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    CS for SB 28-E                                 First Engrossed



 1         1.  A forcible felony as defined in chapter 776.

 2         2.  A violation of chapter 812, relating to theft,

 3  robbery, and related crimes.

 4         3.  A violation of chapter 817, relating to fraudulent

 5  practices.

 6         4.  A violation of chapter 800, relating to lewdness

 7  and indecent exposure.

 8         5.  A violation of chapter 784, relating to assault,

 9  battery, and culpable negligence.

10         6.  A violation of chapter 827, relating to child

11  abuse.

12         7.  A violation of chapter 415, relating to protection

13  from abuse, neglect, and exploitation.

14         8.  A violation of chapter 39, relating to child abuse,

15  abandonment, and neglect.

16         (e)  Having been found guilty of, regardless of

17  adjudication, or entered a plea of nolo contendere or guilty

18  to, any offense prohibited under s. 435.03 or under any

19  similar statute of another jurisdiction; or having committed

20  an act which constitutes domestic violence as defined in s.

21  741.28.

22         (f)  Making or filing a false report or record, which

23  the licensee knows to be false, intentionally or negligently

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

25  federal law, willfully impeding or obstructing such filing or

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

27  shall include only those which are signed in the nurse's

28  capacity as a licensed nurse.

29         (g)  False, misleading, or deceptive advertising.

30         (h)  Unprofessional conduct, which shall include, but

31  not be limited to, any departure from, or the failure to


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    CS for SB 28-E                                 First Engrossed



 1  conform to, the minimal standards of acceptable and prevailing

 2  nursing practice, in which case actual injury need not be

 3  established.

 4         (i)  Engaging or attempting to engage in the

 5  possession, sale, or distribution of controlled substances as

 6  set forth in chapter 893, for any other than legitimate

 7  purposes authorized by this part.

 8         (j)  Being unable to practice nursing with reasonable

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

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

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

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

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

14  probable cause exists to believe that the licensee is unable

15  to practice nursing because of the reasons stated in this

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

17  licensee to submit to a mental or physical examination by

18  physicians designated by the department.  If the licensee

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

20  directing such examination may be enforced by filing a

21  petition for enforcement in the circuit court where the

22  licensee resides or does business. The licensee against whom

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

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

25  proceedings shall be closed to the public. The department

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

27  51.011. A nurse affected by the provisions of this paragraph

28  shall at reasonable intervals be afforded an opportunity to

29  demonstrate that she or he can resume the competent practice

30  of nursing with reasonable skill and safety to patients.

31  


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    CS for SB 28-E                                 First Engrossed



 1         (k)  Failing to report to the department any person who

 2  the licensee knows is in violation of this part or of the

 3  rules of the department or the board; however, if the licensee

 4  verifies that such person is actively participating in a

 5  board-approved program for the treatment of a physical or

 6  mental condition, the licensee is required to report such

 7  person only to an impaired professionals consultant.

 8         (l)  Knowingly violating any provision of this part, a

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

10  board or department previously entered in a disciplinary

11  proceeding or failing to comply with a lawfully issued

12  subpoena of the department.

13         (m)  Failing to report to the department any licensee

14  under chapter 458 or under chapter 459 who the nurse knows has

15  violated the grounds for disciplinary action set out in the

16  law under which that person is licensed and who provides

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

18  or a health maintenance organization certificated under part I

19  of chapter 641, in which the nurse also provides services.

20         (n)  Violating any provision of this chapter or chapter

21  456, or any rules adopted pursuant thereto.

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

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

24  applicant for licensure or licensee who is found guilty of

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

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

27  456.072(1).

28         Section 18.  For the purpose of incorporating the

29  amendment to section 456.072, Florida Statutes, in references

30  thereto, subsections (1) and (2) of section 465.016, Florida

31  Statutes, are reenacted to read:


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    CS for SB 28-E                                 First Engrossed



 1         465.016  Disciplinary actions.--

 2         (1)  The following acts constitute grounds for denial

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

 4  456.072(2):

 5         (a)  Obtaining a license by misrepresentation or fraud

 6  or through an error of the department or the board.

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

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

 9  representation.

10         (c)  Permitting any person not licensed as a pharmacist

11  in this state or not registered as an intern in this state, or

12  permitting a registered intern who is not acting under the

13  direct and immediate personal supervision of a licensed

14  pharmacist, to fill, compound, or dispense any prescriptions

15  in a pharmacy owned and operated by such pharmacist or in a

16  pharmacy where such pharmacist is employed or on duty.

17         (d)  Being unfit or incompetent to practice pharmacy by

18  reason of:

19         1.  Habitual intoxication.

20         2.  The misuse or abuse of any medicinal drug appearing

21  in any schedule set forth in chapter 893.

22         3.  Any abnormal physical or mental condition which

23  threatens the safety of persons to whom she or he might sell

24  or dispense prescriptions, drugs, or medical supplies or for

25  whom she or he might manufacture, prepare, or package, or

26  supervise the manufacturing, preparation, or packaging of,

27  prescriptions, drugs, or medical supplies.

28         (e)  Violating chapter 499; 21 U.S.C. ss. 301-392,

29  known as the Federal Food, Drug, and Cosmetic Act; 21 U.S.C.

30  ss. 821 et seq., known as the Comprehensive Drug Abuse

31  Prevention and Control Act; or chapter 893.


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    CS for SB 28-E                                 First Engrossed



 1         (f)  Having been convicted or found guilty, regardless

 2  of adjudication, in a court of this state or other

 3  jurisdiction, of a crime which directly relates to the ability

 4  to practice pharmacy or to the practice of pharmacy.  A plea

 5  of nolo contendere constitutes a conviction for purposes of

 6  this provision.

 7         (g)  Using in the compounding of a prescription, or

 8  furnishing upon prescription, an ingredient or article

 9  different in any manner from the ingredient or article

10  prescribed, except as authorized in s. 465.019(6) or s.

11  465.025.

12         (h)  Having been disciplined by a regulatory agency in

13  another state for any offense that would constitute a

14  violation of this chapter.

15         (i)  Compounding, dispensing, or distributing a legend

16  drug, including any controlled substance, other than in the

17  course of the professional practice of pharmacy.  For purposes

18  of this paragraph, it shall be legally presumed that the

19  compounding, dispensing, or distributing of legend drugs in

20  excessive or inappropriate quantities is not in the best

21  interests of the patient and is not in the course of the

22  professional practice of pharmacy.

23         (j)  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 record required by federal or

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

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

28  include only those which the licensee is required to make or

29  file in her or his capacity as a licensed pharmacist.

30         (k)  Failing to make prescription fee or price

31  information readily available by failing to provide such


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    CS for SB 28-E                                 First Engrossed



 1  information upon request and upon the presentation of a

 2  prescription for pricing or dispensing.  Nothing in this

 3  section shall be construed to prohibit the quotation of price

 4  information on a prescription drug to a potential consumer by

 5  telephone.

 6         (l)  Placing in the stock of any pharmacy any part of

 7  any prescription compounded or dispensed which is returned by

 8  a patient; however, in a hospital, nursing home, correctional

 9  facility, or extended care facility in which unit-dose

10  medication is dispensed to inpatients, each dose being

11  individually sealed and the individual unit dose or unit-dose

12  system labeled with the name of the drug, dosage strength,

13  manufacturer's control number, and expiration date, if any,

14  the unused unit dose of medication may be returned to the

15  pharmacy for redispensing.  Each pharmacist shall maintain

16  appropriate records for any unused or returned medicinal

17  drugs.

18         (m)  Being unable to practice pharmacy with reasonable

19  skill and safety by reason of illness, use of drugs,

20  narcotics, chemicals, or any other type of material or as a

21  result of any mental or physical condition.  A pharmacist

22  affected under this paragraph shall at reasonable intervals be

23  afforded an opportunity to demonstrate that she or he can

24  resume the competent practice of pharmacy with reasonable

25  skill and safety to her or his customers.

26         (n)  Violating a rule of the board or department or

27  violating an order of the board or department previously

28  entered in a disciplinary hearing.

29         (o)  Failing to report to the department any licensee

30  under chapter 458 or under chapter 459 who the pharmacist

31  knows has violated the grounds for disciplinary action set out


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    CS for SB 28-E                                 First Engrossed



 1  in the law under which that person is licensed and who

 2  provides health care services in a facility licensed under

 3  chapter 395, or a health maintenance organization certificated

 4  under part I of chapter 641, in which the pharmacist also

 5  provides services.

 6         (p)  Failing to notify the Board of Pharmacy in writing

 7  within 20 days of the commencement or cessation of the

 8  practice of the profession of pharmacy in Florida when such

 9  commencement or cessation of the practice of the profession of

10  pharmacy in Florida was a result of a pending or completed

11  disciplinary action or investigation in another jurisdiction.

12         (q)  Using or releasing a patient's records except as

13  authorized by this chapter and chapter 456.

14         (r)  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).

22         Section 19.  For the purpose of incorporating the

23  amendment to section 456.072, Florida Statutes, in references

24  thereto, subsections (1) and (2) of section 466.028, Florida

25  Statutes, are reenacted to read:

26         466.028  Grounds for disciplinary action; action by the

27  board.--

28         (1)  The following acts constitute grounds for denial

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

30  456.072(2):

31  


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    CS for SB 28-E                                 First Engrossed



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

 2  license under this chapter by bribery, fraudulent

 3  misrepresentations, or through an error of the department or

 4  the board.

 5         (b)  Having a license to practice dentistry or dental

 6  hygiene revoked, suspended, or otherwise acted against,

 7  including the denial of licensure, by the licensing authority

 8  of another state, territory, or country.

 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

12  dentistry or dental hygiene.  A plea of nolo contendere shall

13  create a rebuttable presumption of guilt to the underlying

14  criminal charges.

15         (d)  Advertising goods or services in a manner which is

16  fraudulent, false, deceptive, or misleading in form or content

17  contrary to s. 466.019 or rules of the board adopted pursuant

18  thereto.

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

20  under a name other than one's own.

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

22  the licensee knows, or has reason to believe, is clearly in

23  violation of this chapter or of the rules of the department or

24  the board.

25         (g)  Aiding, assisting, procuring, or advising any

26  unlicensed person to practice dentistry or dental hygiene

27  contrary to this chapter or to a rule of the department or the

28  board.

29         (h)  Being employed by any corporation, organization,

30  group, or person other than a dentist or a professional

31  


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    CS for SB 28-E                                 First Engrossed



 1  corporation or limited liability company composed of dentists

 2  to practice dentistry.

 3         (i)  Failing to perform any statutory or legal

 4  obligation placed upon a licensee.

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

 6  to be false, failing to file a report or record required by

 7  state or federal law, knowingly impeding or obstructing such

 8  filing or inducing another person to do so.  Such reports or

 9  records shall include only those which are signed in the

10  capacity as a licensee.

11         (k)  Committing any act which would constitute sexual

12  battery, as defined in chapter 794, upon a patient or

13  intentionally touching the sexual organ of a patient.

14         (l)  Making deceptive, untrue, or fraudulent

15  representations in or related to the practice of dentistry.

16         (m)  Failing to keep written dental records and medical

17  history records justifying the course of treatment of the

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

19  examination results, test results, and X rays, if taken.

20         (n)  Failing to make available to a patient or client,

21  or to her or his legal representative or to the department if

22  authorized in writing by the patient, copies of documents in

23  the possession or under control of the licensee which relate

24  to the patient or client.

25         (o)  Performing professional services which have not

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

27  legal representative, except as provided in ss. 766.103 and

28  768.13.

29         (p)  Prescribing, procuring, dispensing, administering,

30  mixing, or otherwise preparing a legend drug, including any

31  controlled substance, other than in the course of the


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    CS for SB 28-E                                 First Engrossed



 1  professional practice of the dentist.  For the purposes of

 2  this paragraph, it shall be legally presumed that prescribing,

 3  procuring, dispensing, administering, mixing, or otherwise

 4  preparing legend drugs, including all controlled substances,

 5  in excessive or inappropriate quantities is not in the best

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

 7  professional practice of the dentist, without regard to her or

 8  his intent.

 9         (q)  Prescribing, procuring, dispensing, or

10  administering any medicinal drug appearing on any schedule set

11  forth in chapter 893, by a dentist to herself or himself,

12  except those prescribed, dispensed, or administered to the

13  dentist by another practitioner authorized to prescribe them.

14         (r)  Prescribing, procuring, ordering, dispensing,

15  administering, supplying, selling, or giving any drug which is

16  a Schedule II amphetamine or a Schedule II sympathomimetic

17  amine drug or a compound thereof, pursuant to chapter 893, to

18  or for any person except for the clinical investigation of the

19  effects of such drugs or compounds when an investigative

20  protocol therefor is submitted to, and reviewed and approved

21  by, the board before such investigation is begun.

22         (s)  Being unable to practice her or his profession

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 a finding of the secretary or her

28  or his designee that probable cause exists to believe that the

29  licensee is unable to practice dentistry or dental hygiene

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

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


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    CS for SB 28-E                                 First Engrossed



 1  or physical examination by physicians designated by the

 2  department.  If the licensee refuses to comply with such

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

 4  be enforced by filing a petition for enforcement in the

 5  circuit court where the licensee resides or does business.

 6  The licensee against whom the petition is filed shall not be

 7  named or identified by initials in any public court records or

 8  documents, and the proceedings shall be closed to the public.

 9  The department shall be entitled to the summary procedure

10  provided in s. 51.011. A licensee affected under this

11  paragraph shall at reasonable intervals be afforded an

12  opportunity to demonstrate that she or he can resume the

13  competent practice of her or his profession with reasonable

14  skill and safety to patients.

15         (t)  Fraud, deceit, or misconduct in the practice of

16  dentistry or dental hygiene.

17         (u)  Failure to provide and maintain reasonable

18  sanitary facilities and conditions.

19         (v)  Failure to provide adequate radiation safeguards.

20         (w)  Performing any procedure or prescribing any

21  therapy which, by the prevailing standards of dental practice

22  in the community, would constitute experimentation on human

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

24  consent.

25         (x)  Being guilty of incompetence or negligence by

26  failing to meet the minimum standards of performance in

27  diagnosis and treatment when measured against generally

28  prevailing peer performance, including, but not limited to,

29  the undertaking of diagnosis and treatment for which the

30  dentist is not qualified by training or experience or being

31  guilty of dental malpractice. For purposes of this paragraph,


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    CS for SB 28-E                                 First Engrossed



 1  it shall be legally presumed that a dentist is not guilty of

 2  incompetence or negligence by declining to treat an individual

 3  if, in the dentist's professional judgment, the dentist or a

 4  member of her or his clinical staff is not qualified by

 5  training and experience, or the dentist's treatment facility

 6  is not clinically satisfactory or properly equipped to treat

 7  the unique characteristics and health status of the dental

 8  patient, provided the dentist refers the patient to a

 9  qualified dentist or facility for appropriate treatment.  As

10  used in this paragraph, "dental malpractice" includes, but is

11  not limited to, three or more claims within the previous

12  5-year period which resulted in indemnity being paid, or any

13  single indemnity paid in excess of $5,000 in a judgment or

14  settlement, as a result of negligent conduct on the part of

15  the dentist.

16         (y)  Practicing or offering to practice beyond the

17  scope permitted by law or accepting and performing

18  professional responsibilities which the licensee knows or has

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

20         (z)  Delegating professional responsibilities to a

21  person who is not qualified by training, experience, or

22  licensure to perform them.

23         (aa)  The violation of a lawful order of the board or

24  department previously entered in a disciplinary hearing; or

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

26  or department.

27         (bb)  Conspiring with another licensee or with any

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

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

30  lawfully advertising her or his services.

31  


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    CS for SB 28-E                                 First Engrossed



 1         (cc)  Being adjudged mentally incompetent in this or

 2  any other state, the discipline for which shall last only so

 3  long as the adjudication.

 4         (dd)  Presigning blank prescription or laboratory work

 5  order forms.

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

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

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

 9  hormones for the purpose of muscle building or to enhance

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

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

12  injured muscle.  A prescription written for the drug products

13  listed above may be dispensed by the pharmacist with the

14  presumption that the prescription is for legitimate medical

15  use.

16         (ff)  Operating or causing to be operated a dental

17  office in such a manner as to result in dental treatment that

18  is below minimum acceptable standards of performance for the

19  community. This includes, but is not limited to, the use of

20  substandard materials or equipment, the imposition of time

21  limitations within which dental procedures are to be

22  performed, or the failure to maintain patient records as

23  required by this chapter.

24         (gg)  Administering anesthesia in a manner which

25  violates rules of the board adopted pursuant to s. 466.017.

26         (hh)  Failing to report to the department any licensee

27  under chapter 458 or chapter 459 who the dentist knows has

28  violated the grounds for disciplinary action set out in the

29  law under which that person is licensed and who provides

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

31  


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    CS for SB 28-E                                 First Engrossed



 1  or a health maintenance organization certificated under part I

 2  of chapter 641, in which the dentist also provides services.

 3         (ii)  Failing to report to the board, in writing,

 4  within 30 days if action has been taken against one's license

 5  to practice dentistry in another state, territory, or country.

 6         (jj)  Advertising specialty services in violation of

 7  this chapter.

 8         (kk)  Allowing any person other than another dentist or

 9  a professional corporation or limited liability company

10  composed of dentists to direct, control, or interfere with a

11  dentist's clinical judgment; however, this paragraph may not

12  be construed to limit a patient's right of informed consent.

13  To direct, control, or interfere with a dentist's clinical

14  judgment may not be interpreted to mean dental services

15  contractually excluded, the application of alternative

16  benefits that may be appropriate given the dentist's

17  prescribed course of treatment, or the application of

18  contractual provisions and scope of coverage determinations in

19  comparison with a dentist's prescribed treatment on behalf of

20  a covered person by an insurer, health maintenance

21  organization, or a prepaid limited health service

22  organization.

23         (ll)  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).

31  


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    CS for SB 28-E                                 First Engrossed



 1         Section 20.  For the purpose of incorporating the

 2  amendment to section 456.072, Florida Statutes, in references

 3  thereto, subsections (1) and (2) of section 467.203, Florida

 4  Statutes, are reenacted to read:

 5         467.203  Disciplinary actions; penalties.--

 6         (1)  The following acts constitute grounds for denial

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

 8  456.072(2):

 9         (a)  Procuring, attempting to procure, or renewing a

10  license to practice midwifery by bribery, by fraudulent

11  misrepresentation, or through an error of the department.

12         (b)  Having a license to practice midwifery revoked,

13  suspended, or otherwise acted against, including being denied

14  licensure, by the licensing authority of another state,

15  territory, or country.

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

17  adjudication, in any jurisdiction of a crime which directly

18  relates to the practice of midwifery or to the ability to

19  practice midwifery.  A plea of nolo contendere shall be

20  considered a conviction for purposes of this provision.

21         (d)  Making or filing a false report or record, which

22  the licensee knows to be false; intentionally or negligently

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

24  federal law; or willfully impeding or obstructing such filing

25  or inducing another to do so.  Such reports or records shall

26  include only those which are signed in the midwife's capacity

27  as a licensed midwife.

28         (e)  Advertising falsely, misleadingly, or deceptively.

29         (f)  Engaging in unprofessional conduct, which

30  includes, but is not limited to, any departure from, or the

31  failure to conform to, the standards of practice of midwifery


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    CS for SB 28-E                                 First Engrossed



 1  as established by the department, in which case actual injury

 2  need not be established.

 3         (g)  Being unable to practice midwifery with reasonable

 4  skill and safety to patients by reason of illness;

 5  drunkenness; or use of drugs, narcotics, chemicals, or other

 6  materials or as a result of any mental or physical condition.

 7  A midwife affected under this paragraph shall, at reasonable

 8  intervals, be afforded an opportunity to demonstrate that he

 9  or she can resume the competent practice of midwifery with

10  reasonable skill and safety.

11         (h)  Failing to report to the department any person who

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

13  rules of the department.

14         (i)  Violating any lawful order of the department

15  previously entered in a disciplinary proceeding or failing to

16  comply with a lawfully issued subpoena of the department.

17         (j)  Violating any provision of this chapter or chapter

18  456, or any rules adopted pursuant thereto.

19         (2)  The department may enter an order denying

20  licensure or imposing any of the penalties in s. 456.072(2)

21  against any applicant for licensure or licensee who is found

22  guilty of violating any provision of subsection (1) of this

23  section or who is found guilty of violating any provision of

24  s. 456.072(1).

25         Section 21.  For the purpose of incorporating the

26  amendment to section 456.072, Florida Statutes, in references

27  thereto, subsections (1) and (2) of section 468.1295, Florida

28  Statutes, are reenacted to read:

29         468.1295  Disciplinary proceedings.--

30  

31  


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    CS for SB 28-E                                 First Engrossed



 1         (1)  The following acts constitute grounds for denial

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

 3  456.072(2):

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

 5  bribery, by fraudulent misrepresentation, or through an error

 6  of the department or the board.

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

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

 9  authority of another state, territory, or country.

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

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

12  crime in any jurisdiction which directly relates to the

13  practice of speech-language pathology or audiology.

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

15  licensee knows to be false, intentionally or negligently

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

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

18  inducing another person to impede or obstruct such filing.

19  Such report or record shall include only those reports or

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

21  speech-language pathologist or audiologist.

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

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

24  content.

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

26  negligence, incompetency, or misconduct in the practice of

27  speech-language pathology or audiology.

28         (g)  Violating 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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    CS for SB 28-E                                 First Engrossed



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

 2  delinquent license.

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

 4  advertising matter, promotional literature, testimonial,

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

 6  representation, however disseminated or published, which is

 7  misleading, deceiving, or untruthful.

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

 9  delivery of a product unusable or impractical for the purpose

10  represented or implied by such action.

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

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

13  of testing and calibration of such equipment as designated by

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

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

16  advising any licensee or business entity to practice

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

18  chapter 456, or any rule adopted pursuant thereto.

19         (m)  Misrepresenting the professional services

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

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

22  connote the availability of professional services when such

23  use is not accurate.

24         (n)  Representing, advertising, or implying that a

25  hearing aid or its repair is guaranteed without providing full

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

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

28  conditions or limitations imposed upon the guarantee.

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

30  hearing aid utilizing bone conduction has certain specified

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


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    CS for SB 28-E                                 First Engrossed



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

 2  and conspicuously that the instrument operates on the bone

 3  conduction principle and that in many cases of hearing loss

 4  this type of instrument may not be suitable.

 5         (p)  Stating or implying that the use of any hearing

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

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

 8  similar or opposite effect.

 9         (q)  Making any statement regarding the cure of the

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

11         (r)  Representing or implying that a hearing aid is or

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

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

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

15         (s)  Canvassing from house to house or by telephone,

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

17  hearing aid, except that contacting persons who have evidenced

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

19  of hearing aids, shall not be considered canvassing.

20         (t)  Failing to notify the department in writing of a

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

22  30 days after such change.

23         (u)  Failing to provide all information as described in

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

25         (v)  Exercising influence on a client in such a manner

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

27  of a third party.

28         (w)  Practicing or offering to practice beyond the

29  scope permitted by law or accepting and performing

30  professional responsibilities the licensee or

31  


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    CS for SB 28-E                                 First Engrossed



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

 2  or certificateholder is not competent to perform.

 3         (x)  Aiding, assisting, procuring, or employing any

 4  unlicensed person to practice speech-language pathology or

 5  audiology.

 6         (y)  Delegating or contracting for the performance of

 7  professional responsibilities by a person when the licensee

 8  delegating or contracting for performance of such

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

10  not qualified by training, experience, and authorization to

11  perform them.

12         (z)  Committing any act upon a patient or client which

13  would constitute sexual battery or which would constitute

14  sexual misconduct as defined pursuant to s. 468.1296.

15         (aa)  Being unable to practice the profession for which

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

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

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

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

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

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

22  believe that the licensee or certificateholder is unable to

23  practice the profession because of the reasons stated in this

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

25  licensee or certificateholder to submit to a mental or

26  physical examination by a physician, psychologist, clinical

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

28  counselor designated by the department or board.  If the

29  licensee or certificateholder refuses to comply with the

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

31  be enforced by filing a petition for enforcement in the


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    CS for SB 28-E                                 First Engrossed



 1  circuit court in the circuit in which the licensee or

 2  certificateholder resides or does business.  The department

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

 4  51.011.  A licensee or certificateholder affected under this

 5  paragraph shall at reasonable intervals be afforded an

 6  opportunity to demonstrate that he or she can resume the

 7  competent practice for which he or she is licensed or

 8  certified with reasonable skill and safety to patients.

 9         (bb)  Violating any provision of this chapter or

10  chapter 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         Section 22.  For the purpose of incorporating the

18  amendment to section 456.072, Florida Statutes, in references

19  thereto, subsections (1) and (2) of section 468.1755, Florida

20  Statutes, are reenacted to read:

21         468.1755  Disciplinary proceedings.--

22         (1)  The following acts constitute grounds for denial

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

24  456.072(2):

25         (a)  Violation of any provision of s. 456.072(1) or s.

26  468.1745(1).

27         (b)  Attempting to procure a license to practice

28  nursing home administration by bribery, by fraudulent

29  misrepresentation, or through an error of the department or

30  the board.

31  


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    CS for SB 28-E                                 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)  Violation of a lawful order of the board or

27  department previously entered in a disciplinary hearing or

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

29  or department.

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

31  delinquent license.


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    CS for SB 28-E                                 First Engrossed



 1         (k)  Repeatedly acting in a manner inconsistent with

 2  the health, safety, or welfare of the patients of the facility

 3  in which he or she is the administrator.

 4         (l)  Being unable to practice nursing home

 5  administration with reasonable skill and safety to patients by

 6  reason of illness, drunkenness, use of drugs, narcotics,

 7  chemicals, or any other material or substance or as a result

 8  of any mental or physical condition.  In enforcing this

 9  paragraph, upon a finding of the secretary or his or her

10  designee that probable cause exists to believe that the

11  licensee is unable to serve as a nursing home administrator

12  due to the reasons stated in this paragraph, the department

13  shall have the authority to issue an order to compel the

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

15  physician 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 serves as a nursing home administrator.

20  The licensee against whom the petition is filed shall not be

21  named or identified by initials in any public court records or

22  documents, and the proceedings shall be closed to the public.

23  The department shall be entitled to the summary procedure

24  provided in s. 51.011.  A licensee affected under this

25  paragraph shall have the opportunity, at reasonable intervals,

26  to demonstrate that he or she can resume the competent

27  practice of nursing home administration with reasonable skill

28  and safety to patients.

29         (m)  Willfully or repeatedly violating any of the

30  provisions of the law, code, or rules of the licensing or

31  supervising authority or agency of the state or political


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    CS for SB 28-E                                 First Engrossed



 1  subdivision thereof having jurisdiction of the operation and

 2  licensing of nursing homes.

 3         (n)  Paying, giving, causing to be paid or given, or

 4  offering to pay or to give to any person a commission or other

 5  valuable consideration for the solicitation or procurement,

 6  either directly or indirectly, of nursing home usage.

 7         (o)  Willfully permitting unauthorized disclosure of

 8  information relating to a patient or his or her records.

 9         (p)  Discriminating with respect to patients,

10  employees, or staff on account of race, religion, color, sex,

11  or national origin.

12         (q)  Failing to implement an ongoing quality assurance

13  program directed by an interdisciplinary team that meets at

14  least every other month.

15         (r)  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).

23         Section 23.  For the purpose of incorporating the

24  amendment to section 456.072, Florida Statutes, in references

25  thereto, subsections (1) and (2) of section 468.217, Florida

26  Statutes, are reenacted to read:

27         468.217  Denial of or refusal to renew license;

28  suspension and revocation of license and other disciplinary

29  measures.--

30  

31  


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    CS for SB 28-E                                 First Engrossed



 1         (1)  The following acts constitute grounds for denial

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

 3  456.072(2):

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

 5  license to practice occupational therapy by bribery, by

 6  fraudulent misrepresentation, or through an error of the

 7  department or the board.

 8         (b)  Having a license to practice occupational therapy

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

10  denial of licensure, by the licensing authority of another

11  state, territory, or country.

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

13  adjudication, of a crime in any jurisdiction which directly

14  relates to the practice of occupational therapy or to the

15  ability to practice occupational therapy.  A plea of nolo

16  contendere shall be considered a conviction for the purposes

17  of this part.

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

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

20  under a name other than one's own name.

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

22  the licensee knows is in violation of this part or of the

23  rules of the department or of the board.

24         (g)  Aiding, assisting, procuring, or advising any

25  unlicensed person to practice occupational therapy contrary to

26  this part or to a rule of the department or the board.

27         (h)  Failing to perform any statutory or legal

28  obligation placed upon a licensed occupational therapist or

29  occupational therapy assistant.

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

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


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    CS for SB 28-E                                 First Engrossed



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

 2  impeding or obstructing such filing or inducing another person

 3  to do so.  Such reports or records include only those which

 4  are signed in the capacity as a licensed occupational

 5  therapist or occupational therapy assistant.

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

 7  kickback, or rebate to or from, or engaging in any split-fee

 8  arrangement in any form whatsoever with, a physician,

 9  organization, agency, or person, either directly or

10  indirectly, for patients referred to providers of health care

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

12  nursing homes, clinical laboratories, ambulatory surgical

13  centers, or pharmacies.  The provisions of this paragraph

14  shall not be construed to prevent an occupational therapist or

15  occupational therapy assistant from receiving a fee for

16  professional consultation services.

17         (k)  Exercising influence within a patient-therapist

18  relationship for purposes of engaging a patient in sexual

19  activity. A patient is presumed to be incapable of giving

20  free, full, and informed consent to sexual activity with the

21  patient's occupational therapist or occupational therapy

22  assistant.

23         (l)  Making deceptive, untrue, or fraudulent

24  representations in the practice of occupational therapy or

25  employing a trick or scheme in the practice of occupational

26  therapy if such scheme or trick fails to conform to the

27  generally prevailing standards of treatment in the

28  occupational therapy community.

29         (m)  Soliciting patients, either personally or through

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

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


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    CS for SB 28-E                                 First Engrossed



 1  "solicitation" is any communication which directly or

 2  implicitly requests an immediate oral response from the

 3  recipient.

 4         (n)  Failing to keep written records justifying the

 5  course of treatment of the patient, including, but not limited

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

 7         (o)  Exercising influence on the patient or client in

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

 9  financial gain of the licensee or of a third party which

10  includes, but is not limited to, the promoting or selling of

11  services, goods, appliances, or drugs.

12         (p)  Performing professional services which have not

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

14  legal representative, except as provided in s. 768.13.

15         (q)  Gross or repeated malpractice or the failure to

16  practice occupational therapy with that level of care, skill,

17  and treatment which is recognized by a reasonably prudent

18  similar occupational therapist or occupational therapy

19  assistant as being acceptable under similar conditions and

20  circumstances.

21         (r)  Performing any procedure which, by the prevailing

22  standards of occupational therapy practice in the community,

23  would constitute experimentation on a human subject without

24  first obtaining full, informed, and written consent.

25         (s)  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 he or she is not competent to perform.

29         (t)  Being unable to practice occupational therapy 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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    CS for SB 28-E                                 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  have, upon probable cause, authority to compel an occupational

 4  therapist or occupational therapy assistant to submit to a

 5  mental or physical examination by physicians designated by the

 6  department.  The failure of an occupational therapist or

 7  occupational therapy assistant to submit to such examination

 8  when so directed constitutes an admission of the allegations

 9  against him or her, upon which a default and final order may

10  be entered without the taking of testimony or presentation of

11  evidence, unless the failure was due to circumstances beyond

12  his or her control.  An occupational therapist or occupational

13  therapy assistant affected under this paragraph shall at

14  reasonable intervals be afforded an opportunity to demonstrate

15  that he or she can resume the competent practice of

16  occupational therapy with reasonable skill and safety to

17  patients. In any proceeding under this paragraph, neither the

18  record of proceedings nor the orders entered by the board

19  shall be used against an occupational therapist or

20  occupational therapy assistant in any other proceeding.

21         (u)  Delegating professional responsibilities to a

22  person when the licensee who is delegating such

23  responsibilities knows or has reason to know that such person

24  is not qualified by training, experience, or licensure to

25  perform them.

26         (v)  Violating a lawful order of the board or

27  department previously entered in a disciplinary hearing or

28  failing to comply with a lawfully issued subpoena of the

29  department.

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

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


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    CS for SB 28-E                                 First Engrossed



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

 2  lawfully advertising his or her services.

 3         (x)  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).

11         Section 24.  For the purpose of incorporating the

12  amendment to section 456.072, Florida Statutes, in references

13  thereto, subsections (1) and (2) of section 468.365, Florida

14  Statutes, are reenacted to read:

15         468.365  Disciplinary grounds and actions.--

16         (1)  The following acts constitute grounds for denial

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

18  456.072(2):

19         (a)  Procuring, attempting to procure, or renewing a

20  license as provided by this part by bribery, by fraudulent

21  misrepresentation, or through an error of the department or

22  the board.

23         (b)  Having licensure, certification, registration, or

24  other authority, by whatever name known, to deliver

25  respiratory care services revoked, suspended, or otherwise

26  acted against, including the denial of licensure,

27  certification, registration, or other authority to deliver

28  respiratory care services by the licensing authority of

29  another state, territory, or country.

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

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


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    CS for SB 28-E                                 First Engrossed



 1  crime in any jurisdiction which directly relates to

 2  respiratory care services or to the ability to deliver such

 3  services.

 4         (d)  Willfully making or filing a false report or

 5  record, willfully failing to file a report or record required

 6  by state or federal law, or willfully impeding or obstructing

 7  such filing or inducing another person to do so.  Such reports

 8  or records include only those reports or records which require

 9  the signature of a respiratory care practitioner or

10  respiratory therapist licensed pursuant to this part.

11         (e)  Circulating false, misleading, or deceptive

12  advertising.

13         (f)  Unprofessional conduct, which includes, but is not

14  limited to, any departure from, or failure to conform to,

15  acceptable standards related to the delivery of respiratory

16  care services, as set forth by the board in rules adopted

17  pursuant to this part.

18         (g)  Engaging or attempting to engage in the

19  possession, sale, or distribution of controlled substances, as

20  set forth by law, for any purpose other than a legitimate

21  purpose.

22         (h)  Willfully failing to report any violation of this

23  part.

24         (i)  Violating a lawful order of the board or

25  department previously entered in a disciplinary hearing.

26         (j)  Engaging in the delivery of respiratory care

27  services with a revoked, suspended, or inactive license.

28         (k)  Permitting, aiding, assisting, procuring, or

29  advising any person who is not licensed pursuant to this part,

30  contrary to this part or to any rule of the department or the

31  board.


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    CS for SB 28-E                                 First Engrossed



 1         (l)  Failing to perform any statutory or legal

 2  obligation placed upon a respiratory care practitioner or

 3  respiratory therapist licensed pursuant to this part.

 4         (m)  Accepting and performing professional

 5  responsibilities which the licensee knows, or has reason to

 6  know, she or he is not competent to perform.

 7         (n)  Delegating professional responsibilities to a

 8  person when the licensee delegating such responsibilities

 9  knows, or has reason to know, that such person is not

10  qualified by training, experience, or licensure to perform

11  them.

12         (o)  Gross or repeated malpractice or the failure to

13  deliver respiratory care services with that level of care,

14  skill, and treatment which is recognized by a reasonably

15  prudent respiratory care practitioner or respiratory therapist

16  with similar professional training as being acceptable under

17  similar conditions and circumstances.

18         (p)  Paying or receiving any commission, bonus,

19  kickback, or rebate to or from, or engaging in any split-fee

20  arrangement in any form whatsoever with, a person,

21  organization, or agency, either directly or indirectly, for

22  goods or services rendered to patients referred by or to

23  providers of health care goods and services, including, but

24  not limited to, hospitals, nursing homes, clinical

25  laboratories, ambulatory surgical centers, or pharmacies.  The

26  provisions of this paragraph shall not be construed to prevent

27  the licensee from receiving a fee for professional

28  consultation services.

29         (q)  Exercising influence within a respiratory care

30  relationship for the purpose of engaging a patient in sexual

31  activity.  A patient is presumed to be incapable of giving


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    CS for SB 28-E                                 First Engrossed



 1  free, full, and informed consent to sexual activity with the

 2  patient's respiratory care practitioner or respiratory

 3  therapist.

 4         (r)  Making deceptive, untrue, or fraudulent

 5  representations in the delivery of respiratory care services

 6  or employing a trick or scheme in the delivery of respiratory

 7  care services if such a scheme or trick fails to conform to

 8  the generally prevailing standards of other licensees within

 9  the community.

10         (s)  Soliciting patients, either personally or through

11  an agent, through the use of fraud, deception, or otherwise

12  misleading statements or through the exercise of intimidation

13  or undue influence.

14         (t)  Failing to keep written respiratory care records

15  justifying the reason for the action taken by the licensee.

16         (u)  Exercising influence on the patient in such a

17  manner as to exploit the patient for the financial gain of the

18  licensee or a third party, which includes, but is not limited

19  to, the promoting or selling of services, goods, appliances,

20  or drugs.

21         (v)  Performing professional services which have not

22  been duly ordered by a physician licensed pursuant to chapter

23  458 or chapter 459 and which are not in accordance with

24  protocols established by the hospital, other health care

25  provider, or the board, except as provided in ss. 743.064,

26  766.103, and 768.13.

27         (w)  Being unable to deliver respiratory care services

28  with reasonable skill and safety to patients by reason of

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

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

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


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    CS for SB 28-E                                 First Engrossed



 1  upon probable cause, have authority to compel a respiratory

 2  care practitioner or respiratory therapist to submit to a

 3  mental or physical examination by physicians designated by the

 4  department.  The cost of examination shall be borne by the

 5  licensee being examined.  The failure of a respiratory care

 6  practitioner or respiratory therapist to submit to such an

 7  examination when so directed constitutes an admission of the

 8  allegations against her or him, upon which a default and a

 9  final order may be entered without the taking of testimony or

10  presentation of evidence, unless the failure was due to

11  circumstances beyond her or his control.  A respiratory care

12  practitioner or respiratory therapist affected under this

13  paragraph shall at reasonable intervals be afforded an

14  opportunity to demonstrate that she or he can resume the

15  competent delivery of respiratory care services with

16  reasonable skill and safety to her or his patients.  In any

17  proceeding under this paragraph, neither the record of

18  proceedings nor the orders entered by the board shall be used

19  against a respiratory care practitioner or respiratory

20  therapist in any other proceeding.

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         Section 25.  For the purpose of incorporating the

30  amendment to section 456.072, Florida Statutes, in references

31  


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    CS for SB 28-E                                 First Engrossed



 1  thereto, subsections (1) and (2) of section 468.518, Florida

 2  Statutes, are reenacted to read:

 3         468.518  Grounds for disciplinary action.--

 4         (1)  The following acts constitute grounds for denial

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

 6  456.072(2):

 7         (a)  Violating any provision of this part, any board or

 8  agency rule adopted pursuant thereto, or any lawful order of

 9  the board or agency previously entered in a disciplinary

10  hearing held pursuant to this part, or failing to comply with

11  a lawfully issued subpoena of the agency.  The provisions of

12  this paragraph also apply to any order or subpoena previously

13  issued by the Department of Health during its period of

14  regulatory control over this part.

15         (b)  Being unable to engage in dietetics and nutrition

16  practice or nutrition counseling with reasonable skill and

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

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

19  as a result of any mental or physical condition.

20         1.  A licensee whose license is suspended or revoked

21  pursuant to this paragraph shall, at reasonable intervals, be

22  given an opportunity to demonstrate that he or she can resume

23  the competent practice of dietetics and nutrition or nutrition

24  counseling with reasonable skill and safety to patients.

25         2.  Neither the record of the proceeding nor the orders

26  entered by the board in any proceeding under this paragraph

27  may be used against a licensee in any other proceeding.

28         (c)  Attempting to procure or procuring a license to

29  practice dietetics and nutrition or nutrition counseling by

30  fraud or material misrepresentation of material fact.

31  


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    CS for SB 28-E                                 First Engrossed



 1         (d)  Having a license to practice dietetics and

 2  nutrition or nutrition counseling revoked, suspended, or

 3  otherwise acted against, including the denial of licensure by

 4  the licensing authority of another state, district, territory,

 5  or country.

 6         (e)  Being convicted or found guilty of, or entering a

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

 8  crime in any jurisdiction which directly relates to the

 9  practice of dietetics and nutrition or nutrition counseling or

10  the ability to practice dietetics and nutrition or nutrition

11  counseling.

12         (f)  Making or filing a report or record that the

13  licensee knows to be false, willfully failing to file a report

14  or record required by state or federal law, willfully impeding

15  or obstructing such filing, or inducing another person to

16  impede or obstruct such filing. Such reports or records

17  include only those that are signed in the capacity of a

18  licensed dietitian/nutritionist or licensed nutrition

19  counselor.

20         (g)  Advertising goods or services in a manner that is

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

22  content.

23         (h)  Committing an act of fraud or deceit, or of

24  negligence, incompetency, or misconduct in the practice of

25  dietetics and nutrition or nutrition counseling.

26         (i)  Practicing with a revoked, suspended, inactive, or

27  delinquent license.

28         (j)  Treating or undertaking to treat human ailments by

29  means other than by dietetics and nutrition practice or

30  nutrition counseling.

31  


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    CS for SB 28-E                                 First Engrossed



 1         (k)  Failing to maintain acceptable standards of

 2  practice as set forth by the board and the council in rules

 3  adopted pursuant to this part.

 4         (l)  Engaging directly or indirectly in the dividing,

 5  transferring, assigning, rebating, or refunding of fees

 6  received for professional services, or profiting by means of a

 7  credit or other valuable consideration, such as an unearned

 8  commission, discount, or gratuity, with any person referring a

 9  patient or with any relative or business associate of the

10  referring person. Nothing in this part prohibits the members

11  of any regularly and properly organized business entity that

12  is composed of licensees under this part and recognized under

13  the laws of this state from making any division of their total

14  fees among themselves as they determine necessary.

15         (m)  Advertising, by or on behalf of a licensee under

16  this part, any method of assessment or treatment which is

17  experimental or without generally accepted scientific

18  validation.

19         (n)  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).

27         Section 26.  For the purpose of incorporating the

28  amendment to section 456.072, Florida Statutes, in references

29  thereto, section 468.719, Florida Statutes, is reenacted to

30  read:

31         468.719  Disciplinary actions.--


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    CS for SB 28-E                                 First Engrossed



 1         (1)  The following acts constitute grounds for denial

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

 3  456.072(2):

 4         (a)  Failing to include the athletic trainer's name and

 5  license number in any advertising, including, but not limited

 6  to, business cards and letterhead, related to the practice of

 7  athletic training. Advertising shall not include clothing or

 8  other novelty items.

 9         (b)  Committing incompetency or misconduct in the

10  practice of athletic training.

11         (c)  Committing fraud or deceit in the practice of

12  athletic training.

13         (d)  Committing negligence, gross negligence, or

14  repeated negligence in the practice of athletic training.

15         (e)  While practicing athletic training, being unable

16  to practice athletic training with reasonable skill and safety

17  to athletes by reason of illness or use of alcohol or drugs or

18  as a result of any mental or physical condition.

19         (f)  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).

27         Section 27.  For the purpose of incorporating the

28  amendment to section 456.072, Florida Statutes, in references

29  thereto, section 468.811, Florida Statutes, is reenacted to

30  read:

31         468.811  Disciplinary proceedings.--


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    CS for SB 28-E                                 First Engrossed



 1         (1)  The following acts constitute grounds for denial

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

 3  456.072(2):

 4         (a)  Attempting to procure a license by fraudulent

 5  misrepresentation.

 6         (b)  Having a license to practice orthotics,

 7  prosthetics, or pedorthics revoked, suspended, or otherwise

 8  acted against, including the denial of licensure in another

 9  jurisdiction.

10         (c)  Being convicted or found guilty of or pleading

11  nolo contendere to, regardless of adjudication, in any

12  jurisdiction, a crime that directly relates to the practice of

13  orthotics, prosthetics, or pedorthics, including violations of

14  federal laws or regulations regarding orthotics, prosthetics,

15  or pedorthics.

16         (d)  Filing a report or record that the licensee knows

17  is 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

20  person to impede or obstruct such filing. Such reports or

21  records include only reports or records that are signed in a

22  person's capacity as a licensee under this act.

23         (e)  Advertising goods or services in a fraudulent,

24  false, deceptive, or misleading manner.

25         (f)  Violation of an order of the board, agency, or

26  department previously entered in a disciplinary hearing or

27  failure to comply with a subpoena issued by the board, agency,

28  or department.

29         (g)  Practicing with a revoked, suspended, or inactive

30  license.

31  


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    CS for SB 28-E                                 First Engrossed



 1         (h)  Gross or repeated malpractice or the failure to

 2  deliver orthotic, prosthetic, or pedorthic services with that

 3  level of care and skill which is recognized by a reasonably

 4  prudent licensed practitioner with similar professional

 5  training as being acceptable under similar conditions and

 6  circumstances.

 7         (i)  Failing to provide written notice of any

 8  applicable warranty for an orthosis, prosthesis, or pedorthic

 9  device that is provided to a patient.

10         (j)  Violating any provision of this chapter or chapter

11  456, or any rules adopted pursuant thereto.

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

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

14  applicant for licensure or licensee who is found guilty of

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

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

17  456.072(1).

18         Section 28.  For the purpose of incorporating the

19  amendment to section 456.072, Florida Statutes, in references

20  thereto, subsections (1) and (2) of section 478.52, Florida

21  Statutes, are reenacted to read:

22         478.52  Disciplinary proceedings.--

23         (1)  The following acts constitute grounds for denial

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

25  456.072(2):

26         (a)  Obtaining or attempting to obtain a license by

27  bribery, fraud, or knowing misrepresentation.

28         (b)  Having a license or other authority to deliver

29  electrolysis services revoked, suspended, or otherwise acted

30  against, including denial of licensure, in another

31  jurisdiction.


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    CS for SB 28-E                                 First Engrossed



 1         (c)  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 directly relates to the

 4  practice of electrology.

 5         (d)  Willfully making or filing a false report or

 6  record, willfully failing to file a report or record required

 7  for electrologists, or willfully impeding or obstructing the

 8  filing of a report or record required by this act or inducing

 9  another person to do so.

10         (e)  Circulating false, misleading, or deceptive

11  advertising.

12         (f)  Unprofessional conduct, including any departure

13  from, or failure to conform to, acceptable standards related

14  to the delivery of electrolysis services.

15         (g)  Engaging or attempting to engage in the illegal

16  possession, sale, or distribution of any illegal or controlled

17  substance.

18         (h)  Willfully failing to report any known violation of

19  this chapter.

20         (i)  Willfully or repeatedly violating a rule adopted

21  under this chapter, or an order of the board or department

22  previously entered in a disciplinary hearing.

23         (j)  Engaging in the delivery of electrolysis services

24  without an active license.

25         (k)  Employing an unlicensed person to practice

26  electrology.

27         (l)  Failing to perform any statutory or legal

28  obligation placed upon an electrologist.

29         (m)  Accepting and performing professional

30  responsibilities which the licensee knows, or has reason to

31  know, she or he is not competent to perform.


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    CS for SB 28-E                                 First Engrossed



 1         (n)  Delegating professional responsibilities to a

 2  person the licensee knows, or has reason to know, is

 3  unqualified by training, experience, or licensure to perform.

 4         (o)  Gross or repeated malpractice or the inability to

 5  practice electrology with reasonable skill and safety.

 6         (p)  Judicially determined mental incompetency.

 7         (q)  Practicing or attempting to practice electrology

 8  under a name other than her or his own.

 9         (r)  Being unable to practice electrology with

10  reasonable skill and safety because of a mental or physical

11  condition or illness, or the use of alcohol, controlled

12  substances, or any other substance which impairs one's ability

13  to practice.

14         1.  The department may, upon probable cause, compel a

15  licensee to submit to a mental or physical examination by

16  physicians designated by the department. The cost of an

17  examination shall be borne by the licensee, and her or his

18  failure to submit to such an examination constitutes an

19  admission of the allegations against her or him, consequent

20  upon which a default and a final order may be entered without

21  the taking of testimony or presentation of evidence, unless

22  the failure was due to circumstances beyond her or his

23  control.

24         2.  A licensee who is disciplined under this paragraph

25  shall, at reasonable intervals, be afforded an opportunity to

26  demonstrate that she or he can resume the practice of

27  electrology with reasonable skill and safety.

28         3.  In any proceeding under this paragraph, the record

29  of proceedings or the orders entered by the board may not be

30  used against a licensee in any other proceeding.

31  


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    CS for SB 28-E                                 First Engrossed



 1         (s)  Disclosing the identity of or information about a

 2  patient without written permission, except for information

 3  which does not identify a patient and which is used for

 4  training purposes in an approved electrolysis training

 5  program.

 6         (t)  Practicing or attempting to practice any permanent

 7  hair removal except as described in s. 478.42(5).

 8         (u)  Operating any electrolysis facility unless it has

 9  been duly licensed as provided in this chapter.

10         (v)  Violating any provision of this chapter or chapter

11  456, or any rules adopted pursuant thereto.

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

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

14  applicant for licensure or licensee who is found guilty of

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

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

17  456.072(1).

18         Section 29.  For the purpose of incorporating the

19  amendment to section 456.072, Florida Statutes, in references

20  thereto, subsections (1) and (2) of section 480.046, Florida

21  Statutes, are reenacted to read:

22         480.046  Grounds for disciplinary action by the

23  board.--

24         (1)  The following acts constitute grounds for denial

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

26  456.072(2):

27         (a)  Attempting to procure a license to practice

28  massage by bribery or fraudulent misrepresentation.

29         (b)  Having a license to practice massage revoked,

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

31  


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    CS for SB 28-E                                 First Engrossed



 1  licensure, by the licensing authority of another state,

 2  territory, or country.

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

 4  adjudication, of a crime in any jurisdiction which directly

 5  relates to the practice of massage or to the ability to

 6  practice massage. Any plea of nolo contendere shall be

 7  considered a conviction for purposes of this chapter.

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

 9         (e)  Aiding, assisting, procuring, or advising any

10  unlicensed person to practice massage contrary to the

11  provisions of this chapter or to a rule of the department or

12  the board.

13         (f)  Making deceptive, untrue, or fraudulent

14  representations in the practice of massage.

15         (g)  Being unable to practice massage with reasonable

16  skill and safety by reason of illness or use of alcohol,

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

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

19  this paragraph, the department shall have, upon probable

20  cause, authority to compel a massage therapist to submit to a

21  mental or physical examination by physicians designated by the

22  department.  Failure of a massage therapist to submit to such

23  examination when so directed, unless the failure was due to

24  circumstances beyond her or his control, shall constitute an

25  admission of the allegations against her or him, consequent

26  upon which a default and final order may be entered without

27  the taking of testimony or presentation of evidence.  A

28  massage therapist affected under this paragraph shall at

29  reasonable intervals be afforded an opportunity to demonstrate

30  that she or he can resume the competent practice of massage

31  with reasonable skill and safety to clients.


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    CS for SB 28-E                                 First Engrossed



 1         (h)  Gross or repeated malpractice or the failure to

 2  practice massage with that level of care, skill, and treatment

 3  which is recognized by a reasonably prudent massage therapist

 4  as being acceptable under similar conditions and

 5  circumstances.

 6         (i)  Practicing or offering to practice beyond the

 7  scope permitted by law or accepting and performing

 8  professional responsibilities which the licensee knows or has

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

10         (j)  Delegating professional responsibilities to a

11  person when the licensee delegating such responsibilities

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

13  by training, experience, or licensure to perform.

14         (k)  Violating a lawful order of the board or

15  department previously entered in a disciplinary hearing, or

16  failing to comply with a lawfully issued subpoena of the

17  department.

18         (l)  Refusing to permit the department to inspect the

19  business premises of the licensee during regular business

20  hours.

21         (m)  Failing to keep the equipment and premises of the

22  massage establishment in a clean and sanitary condition.

23         (n)  Practicing massage at a site, location, or place

24  which is not duly licensed as a massage establishment, except

25  that a massage therapist, as provided by rules adopted by the

26  board, may provide massage services, excluding colonic

27  irrigation, at the residence of a client, at the office of the

28  client, at a sports event, at a convention, or at a trade

29  show.

30         (o)  Violating any provision of this chapter or chapter

31  456, or any rules adopted pursuant thereto.


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 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).

 7         Section 30.  For the purpose of incorporating the

 8  amendment to section 456.072, Florida Statutes, in references

 9  thereto, subsections (1) and (2) of section 483.825, Florida

10  Statutes, are reenacted to read:

11         483.825  Grounds for disciplinary action.--

12         (1)  The following acts constitute grounds for denial

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

14  456.072(2):

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

16  license or registration under this part by bribery, by

17  fraudulent misrepresentation, or through an error of the

18  department or the board.

19         (b)  Engaging in or attempting to engage in, or

20  representing herself or himself as entitled to perform, any

21  clinical laboratory procedure or category of procedures not

22  authorized pursuant to her or his license.

23         (c)  Demonstrating incompetence or making consistent

24  errors in the performance of clinical laboratory examinations

25  or procedures or erroneous reporting.

26         (d)  Performing a test and rendering a report thereon

27  to a person not authorized by law to receive such services.

28         (e)  Has been convicted or found guilty of, or entered

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

30  crime in any jurisdiction which directly relates to the

31  activities of clinical laboratory personnel or involves moral


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    CS for SB 28-E                                 First Engrossed



 1  turpitude or fraudulent or dishonest dealing. The record of a

 2  conviction certified or authenticated in such form as to be

 3  admissible in evidence under the laws of the state shall be

 4  admissible as prima facie evidence of such guilt.

 5         (f)  Having been adjudged mentally or physically

 6  incompetent.

 7         (g)  Aiding and abetting in the violation of any

 8  provision of this part or the rules adopted hereunder.

 9         (h)  Reporting a test result when no laboratory test

10  was performed on a clinical specimen.

11         (i)  Knowingly advertising false services or

12  credentials.

13         (j)  Having a license revoked, suspended, or otherwise

14  acted against, including the denial of licensure, by the

15  licensing authority of another jurisdiction. The licensing

16  authority's acceptance of a relinquishment of a license,

17  stipulation, consent order, or other settlement, offered in

18  response to or in anticipation of the filing of administrative

19  charges against the licensee, shall be construed as action

20  against the licensee.

21         (k)  Failing to report to the board, in writing, within

22  30 days that an action under paragraph (e), paragraph (f), or

23  paragraph (j) has been taken against the licensee or one's

24  license to practice as clinical laboratory personnel in

25  another state, territory, country, or other jurisdiction.

26         (l)  Being unable to perform or report clinical

27  laboratory examinations with reasonable skill and safety to

28  patients by reason of illness or use of alcohol, drugs,

29  narcotics, chemicals, or any other type of material or as a

30  result of any mental or physical condition.  In enforcing this

31  paragraph, the department shall have, upon a finding of the


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    CS for SB 28-E                                 First Engrossed



 1  secretary or his or her designee that probable cause exists to

 2  believe that the licensee is unable to practice because of the

 3  reasons stated in this paragraph, the authority to issue an

 4  order to compel a licensee to submit to a mental or physical

 5  examination by physicians designated by the department. If the

 6  licensee refuses to comply with such order, the department's

 7  order directing such examination may be enforced by filing a

 8  petition for enforcement in the circuit court where the

 9  licensee resides or does business. The department shall be

10  entitled to the summary procedure provided in s. 51.011.  A

11  licensee affected under this paragraph shall at reasonable

12  intervals be afforded an opportunity to demonstrate that he or

13  she can resume competent practice with reasonable skill and

14  safety to patients.

15         (m)  Delegating professional responsibilities to a

16  person when the licensee delegating such responsibilities

17  knows, or has reason to know, that such person is not

18  qualified by training, experience, or licensure to perform

19  them.

20         (n)  Violating a previous order of the board entered in

21  a disciplinary proceeding.

22         (o)  Failing to report to the department a person or

23  other licensee who the licensee knows is in violation of this

24  chapter or the rules of the department or board adopted

25  hereunder.

26         (p)  Making or filing a report which the licensee knows

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

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

29  impeding or obstructing such filing or inducing another person

30  to do so, including, but not limited to, impeding an agent of

31  the state from obtaining a report or record for investigative


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    CS for SB 28-E                                 First Engrossed



 1  purposes. Such reports or records shall include only those

 2  generated in the capacity as a licensed clinical laboratory

 3  personnel.

 4         (q)  Paying or receiving any commission, bonus,

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

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

 7  or person, either directly or indirectly for patients referred

 8  to providers of health care goods and services including, but

 9  not limited to, hospitals, nursing homes, clinical

10  laboratories, ambulatory surgical centers, or pharmacies. The

11  provisions of this paragraph shall not be construed to prevent

12  a clinical laboratory professional from receiving a fee for

13  professional consultation services.

14         (r)  Exercising influence on a patient or client in

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

16  financial gain of the licensee or other third party, which

17  shall include, but not be limited to, the promoting, selling,

18  or withholding of services, goods, appliances, referrals, or

19  drugs.

20         (s)  Practicing or offering to practice beyond the

21  scope permitted by law or rule, or accepting or performing

22  professional services or responsibilities which the licensee

23  knows or has reason to know that he or she is not competent to

24  perform.

25         (t)  Misrepresenting or concealing a material fact at

26  any time during any phase of the licensing, investigative, or

27  disciplinary process, procedure, or proceeding.

28         (u)  Improperly interfering with an investigation or

29  any disciplinary proceeding.

30         (v)  Engaging in or attempting to engage in sexual

31  misconduct, causing undue embarrassment or using disparaging


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    CS for SB 28-E                                 First Engrossed



 1  language or language of a sexual nature towards a patient,

 2  exploiting superior/subordinate, professional/patient,

 3  instructor/student relationships for personal gain, sexual

 4  gratification, or advantage.

 5         (w)  Violating any provision of this chapter or chapter

 6  456, or any rules adopted pursuant thereto.

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

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

 9  applicant for licensure or licensee who is found guilty of

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

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

12  456.072(1).

13         Section 31.  For the purpose of incorporating the

14  amendment to section 456.072, Florida Statutes, in references

15  thereto, paragraphs (g) and (h) of subsection (6) of section

16  483.901, Florida Statutes, are reenacted to read:

17         483.901  Medical physicists; definitions; licensure.--

18         (6)  LICENSE REQUIRED.--An individual may not engage in

19  the practice of medical physics, including the specialties of

20  diagnostic radiological physics, therapeutic radiological

21  physics, medical nuclear radiological physics, or medical

22  health physics, without a license issued by the department for

23  the appropriate specialty.

24         (g)  The following acts constitute grounds for denial

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

26  456.072(2):

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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    CS for SB 28-E                                 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.  Failing to perform any statutory or legal

15  obligation placed upon a licensee.

16         8.  Aiding, assisting, procuring, employing, or

17  advising any unlicensed person to practice medical physics

18  contrary to this section or any rule adopted thereunder.

19         9.  Delegating or contracting for the performance of

20  professional responsibilities by a person when the licensee

21  delegating or contracting such responsibilities knows, or has

22  reason to know, such person is not qualified by training,

23  experience, and authorization to perform them.

24         10.  Practicing or offering to practice beyond the

25  scope permitted by law or accepting and performing

26  professional responsibilities the licensee knows, or has

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

28         11.  Gross or repeated malpractice or the inability to

29  practice medical physics with reasonable skill and safety.

30         12.  Judicially determined mental incompetency.

31  


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    CS for SB 28-E                                 First Engrossed



 1         13.  Being unable to practice medical physics with

 2  reasonable skill and safety because of a mental or physical

 3  condition or illness or the use of alcohol, controlled

 4  substances, or any other substance which impairs one's ability

 5  to practice.

 6         a.  The department may, upon probable cause, compel a

 7  licensee to submit to a mental or physical examination by

 8  physicians designated by the department.  The cost of an

 9  examination shall be borne by the licensee, and the licensee's

10  failure to submit to such an examination constitutes an

11  admission of the allegations against the licensee, consequent

12  upon which a default and a final order may be entered without

13  the taking of testimony or presentation of evidence, unless

14  the failure was due to circumstances beyond the licensee's

15  control.

16         b.  A licensee who is disciplined under this

17  subparagraph shall, at reasonable intervals, be afforded an

18  opportunity to demonstrate that the licensee can resume the

19  practice of medical physics with reasonable skill and safety.

20         c.  With respect to any proceeding under this

21  subparagraph, the record of proceedings or the orders entered

22  by the department may not be used against a licensee in any

23  other proceeding.

24         14.  Violating any provision of this chapter or chapter

25  456, or any rules adopted pursuant thereto.

26         (h)  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).


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    CS for SB 28-E                                 First Engrossed



 1         Section 32.  For the purpose of incorporating the

 2  amendment to section 456.072, Florida Statutes, in references

 3  thereto, subsections (1) and (2) of section 484.014, Florida

 4  Statutes, are reenacted to read:

 5         484.014  Disciplinary actions.--

 6         (1)  The following acts constitute grounds for denial

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

 8  456.072(2):

 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)  Practicing with a revoked, suspended, inactive, or

31  delinquent license.


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    CS for SB 28-E                                 First Engrossed



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

 2  department previously entered in a disciplinary hearing or

 3  failing to comply with a lawfully issued subpoena of the

 4  department.

 5         (i)  Violation of any provision of s. 484.012.

 6         (j)  Conspiring with another licensee or with any

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

 8  coerce, intimidate, or preclude another licensee from lawfully

 9  advertising her or his services.

10         (k)  Willfully submitting to any third-party payor a

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

12         (l)  Failing to keep written prescription files.

13         (m)  Willfully failing to report any person who the

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

15  department or the board.

16         (n)  Exercising influence on a client in such a manner

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

18  of a third party.

19         (o)  Gross or repeated malpractice.

20         (p)  Permitting any person not licensed as an optician

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

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

23  practice of opticianry.

24         (q)  Being convicted or found guilty of, or entering a

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

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

27  relates to the ability to practice opticianry or to the

28  practice of opticianry.

29         (r)  Having been disciplined by a regulatory agency in

30  another state for any offense that would constitute a

31  violation of Florida law or rules regulating opticianry.


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    CS for SB 28-E                                 First Engrossed



 1         (s)  Being unable to practice opticianry with

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

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

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

 5  affected under this paragraph shall at reasonable intervals be

 6  afforded an opportunity to demonstrate that she or he can

 7  resume the competent practice of opticianry with reasonable

 8  skill and safety to her or his customers.

 9         (t)  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         Section 33.  For the purpose of incorporating the

18  amendment to section 456.072, Florida Statutes, in references

19  thereto, subsection (1) and paragraph (a) of subsection (2) of

20  section 484.056, Florida Statutes, are reenacted to read:

21         484.056  Disciplinary proceedings.--

22         (1)  The following acts constitute grounds for denial

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

24  456.072(2):

25         (a)  Violation of any provision of s. 456.072(1), s.

26  484.0512, or s. 484.053.

27         (b)  Attempting to procure a license to dispense

28  hearing aids by bribery, by fraudulent misrepresentations, or

29  through an error of the department or the board.

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

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


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    CS for SB 28-E                                 First Engrossed



 1  licensure, by the licensing authority of another state,

 2  territory, or country.

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

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

 5  crime in any jurisdiction which directly relates to the

 6  practice of dispensing hearing aids or the ability to practice

 7  dispensing hearing aids, including violations of any federal

 8  laws or regulations regarding hearing aids.

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

10  licensee knows to be false, intentionally or negligently

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

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

13  inducing another person to impede or obstruct such filing.

14  Such reports or records shall include only those reports or

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

16  hearing aid specialist.

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

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

19  content.

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

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

22  practice of dispensing hearing aids.

23         (h)  Violation of a lawful order of the board or

24  department previously entered in a disciplinary hearing or

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

26  or department.

27         (i)  Practicing with a revoked, suspended, inactive, or

28  delinquent license.

29         (j)  Using, or causing or promoting the use of, any

30  advertising matter, promotional literature, testimonial,

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


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    CS for SB 28-E                                 First Engrossed



 1  representation, however disseminated or published, which is

 2  misleading, deceiving, or untruthful.

 3         (k)  Showing or demonstrating, or, in the event of

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

 5  purpose represented or implied by such action.

 6         (l)  Misrepresentation of professional services

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

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

 9  "clinical," "medical audiologist," "clinical audiologist,"

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

11  title which might connote the availability of professional

12  services when such use is not accurate.

13         (m)  Representation, advertisement, or implication that

14  a hearing aid or its repair is guaranteed without providing

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

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

17  conditions or limitations imposed upon the guarantee.

18         (n)  Representing, directly or by implication, that a

19  hearing aid utilizing bone conduction has certain specified

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

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

22  and conspicuously that the instrument operates on the bone

23  conduction principle and that in many cases of hearing loss

24  this type of instrument may not be suitable.

25         (o)  Making any predictions or prognostications as to

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

27  terms or with reference to an individual person.

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

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

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

31  similar or opposite effect.


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    CS for SB 28-E                                 First Engrossed



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

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

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

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

 5  or in any other sense specially fabricated for an individual

 6  person when such is not the case.

 7         (s)  Canvassing from house to house or by telephone

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

 9  hearing aid, except that contacting persons who have evidenced

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

11  of hearing aids, shall not be considered canvassing.

12         (t)  Failure to submit to the board on an annual basis,

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

14  of testing and calibration of audiometric testing equipment on

15  the form approved by the board.

16         (u)  Failing to provide all information as described in

17  s. 484.051(1).

18         (v)  Exercising influence on a client in such a manner

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

20  of a third party.

21         (w)  Violating any provision of this chapter or chapter

22  456, or any rules adopted pursuant thereto.

23         (2)(a)  The board may enter an order denying licensure

24  or 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         Section 34.  For the purpose of incorporating the

30  amendment to section 456.072, Florida Statutes, in references

31  


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    CS for SB 28-E                                 First Engrossed



 1  thereto, subsections (1) and (2) of section 486.125, Florida

 2  Statutes, are reenacted to read:

 3         486.125  Refusal, revocation, or suspension of license;

 4  administrative fines and other disciplinary measures.--

 5         (1)  The following acts constitute grounds for denial

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

 7  456.072(2):

 8         (a)  Being unable to practice physical therapy with

 9  reasonable skill and safety to patients by reason of illness

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

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

12  condition.

13         1.  In enforcing this paragraph, upon a finding of the

14  secretary or the secretary's designee that probable cause

15  exists to believe that the licensee is unable to practice

16  physical therapy due to the reasons stated in this paragraph,

17  the department shall have the authority to compel a physical

18  therapist or physical therapist assistant to submit to a

19  mental or physical examination by a physician designated by

20  the department.  If the licensee refuses to comply with such

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

22  be enforced by filing a petition for enforcement in the

23  circuit court where the licensee resides or serves as a

24  physical therapy practitioner.  The licensee against whom the

25  petition is filed shall not be named or identified by initials

26  in any public court records or documents, and the proceedings

27  shall be closed to the public.  The department shall be

28  entitled to the summary procedure provided in s. 51.011.

29         2.  A physical therapist or physical therapist

30  assistant whose license is suspended or revoked pursuant to

31  this subsection shall, at reasonable intervals, be given an


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    CS for SB 28-E                                 First Engrossed



 1  opportunity to demonstrate that she or he can resume the

 2  competent practice of physical therapy with reasonable skill

 3  and safety to patients.

 4         3.  Neither the record of proceeding nor the orders

 5  entered by the board in any proceeding under this subsection

 6  may be used against a physical therapist or physical therapist

 7  assistant in any other proceeding.

 8         (b)  Having committed fraud in the practice of physical

 9  therapy or deceit in obtaining a license as a physical

10  therapist or as a physical therapist assistant.

11         (c)  Being convicted or found guilty regardless of

12  adjudication, of a crime in any jurisdiction which directly

13  relates to the practice of physical therapy or to the ability

14  to practice physical therapy. The entry of any plea of nolo

15  contendere shall be considered a conviction for purpose of

16  this chapter.

17         (d)  Having treated or undertaken to treat human

18  ailments by means other than by physical therapy, as defined

19  in this chapter.

20         (e)  Failing to maintain acceptable standards of

21  physical therapy practice as set forth by the board in rules

22  adopted pursuant to this chapter.

23         (f)  Engaging directly or indirectly in the dividing,

24  transferring, assigning, rebating, or refunding of fees

25  received for professional services, or having been found to

26  profit by means of a credit or other valuable consideration,

27  such as an unearned commission, discount, or gratuity, with

28  any person referring a patient or with any relative or

29  business associate of the referring person.  Nothing in this

30  chapter shall be construed to prohibit the members of any

31  regularly and properly organized business entity which is


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    CS for SB 28-E                                 First Engrossed



 1  comprised of physical therapists and which is recognized under

 2  the laws of this state from making any division of their total

 3  fees among themselves as they determine necessary.

 4         (g)  Having a license revoked or suspended; having had

 5  other disciplinary action taken against her or him; or having

 6  had her or his application for a license refused, revoked, or

 7  suspended by the licensing authority of another state,

 8  territory, or country.

 9         (h)  Violating a lawful order of the board or

10  department previously entered in a disciplinary hearing.

11         (i)  Making or filing a report or record which the

12  licensee knows to be false.  Such reports or records shall

13  include only those which are signed in the capacity of a

14  physical therapist.

15         (j)  Practicing or offering to practice beyond the

16  scope permitted by law or accepting and performing

17  professional responsibilities which the licensee knows or has

18  reason to know that she or he is not competent to perform,

19  including, but not limited to, specific spinal manipulation.

20         (k)  Violating any provision of this chapter or chapter

21  456, or any rules adopted pursuant thereto.

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

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

24  applicant for licensure or licensee who is found guilty of

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

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

27  456.072(1).

28         Section 35.  For the purpose of incorporating the

29  amendment to section 456.072, Florida Statutes, in references

30  thereto, section 490.009, Florida Statutes, is reenacted to

31  read:


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 1         490.009  Discipline.--

 2         (1)  The following acts constitute grounds for denial

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

 4  456.072(2):

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

 6  license under this chapter by bribery or fraudulent

 7  misrepresentation or through an error of the board or

 8  department.

 9         (b)  Having a license to practice a comparable

10  profession revoked, suspended, or otherwise acted against,

11  including the denial of certification or licensure by 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 his or her profession or the

16  ability to practice his or her profession.  A plea of nolo

17  contendere creates a rebuttable presumption of guilt of the

18  underlying criminal charges.  However, the board shall allow

19  the person who is the subject of the disciplinary proceeding

20  to present any evidence relevant to the underlying charges and

21  circumstances surrounding the plea.

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

23  obtaining a fee or other thing of value on the representation

24  that beneficial results from any treatment will be guaranteed.

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

26  under a name other than one's own.

27         (f)  Maintaining a professional association with any

28  person who the applicant or licensee knows, or has reason to

29  believe, is in violation of this chapter or of a rule of the

30  department or, in the case of psychologists, of the department

31  or the board.


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    CS for SB 28-E                                 First Engrossed



 1         (g)  Knowingly aiding, assisting, procuring, or

 2  advising any nonlicensed person to hold himself or herself out

 3  as licensed under this chapter.

 4         (h)  Failing to perform any statutory or legal

 5  obligation placed upon a person licensed under this chapter.

 6         (i)  Willfully making or filing a false report or

 7  record; failing to file a report or record required by state

 8  or federal law; willfully impeding or obstructing the filing

 9  of a report or record; or inducing another person to make or

10  file a false report or record or to impede or obstruct the

11  filing of a report or record.  Such report or record includes

12  only a report or record which requires the signature of a

13  person licensed under this chapter.

14         (j)  Paying a kickback, rebate, bonus, or other

15  remuneration for receiving a patient or client, or receiving a

16  kickback, rebate, bonus, or other remuneration for referring a

17  patient or client to another provider of mental health care

18  services or to a provider of health care services or goods;

19  referring a patient or client to oneself for services on a

20  fee-paid basis when those services are already being paid for

21  by some other public or private entity; or entering into a

22  reciprocal referral agreement.

23         (k)  Committing any act upon a patient or client which

24  would constitute sexual battery or which would constitute

25  sexual misconduct as defined in s. 490.0111.

26         (l)  Making misleading, deceptive, untrue, or

27  fraudulent representations in the practice of any profession

28  licensed under this chapter.

29         (m)  Soliciting patients or clients personally, or

30  through an agent, through the use of fraud, intimidation,

31  


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    CS for SB 28-E                                 First Engrossed



 1  undue influence, or a form of overreaching or vexatious

 2  conduct.

 3         (n)  Failing to make available to a patient or client,

 4  upon written request, copies of test results, reports, or

 5  documents in the possession or under the control of the

 6  licensee which have been prepared for and paid for by the

 7  patient or client.

 8         (o)  Failing to respond within 30 days to a written

 9  communication from the department concerning any investigation

10  by the department or to make available any relevant records

11  with respect to any investigation about the licensee's conduct

12  or background.

13         (p)  Being unable to practice the profession for which

14  he or she is licensed under this chapter with reasonable skill

15  or competence as a result of any mental or physical condition

16  or by reason of illness; drunkenness; or excessive use of

17  drugs, narcotics, chemicals, or any other substance.  In

18  enforcing this paragraph, upon a finding by the secretary, the

19  secretary's designee, or the board that probable cause exists

20  to believe that the licensee is unable to practice the

21  profession because of the reasons stated in this paragraph,

22  the department shall have the authority to compel a licensee

23  to submit to a mental or physical examination by psychologists

24  or physicians designated by the department or board.  If the

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

26  department may file a petition for enforcement in the circuit

27  court of the circuit in which the licensee resides or does

28  business.  The licensee shall not be named or identified by

29  initials in the petition or in any other public court records

30  or documents, and the enforcement proceedings shall be closed

31  to the public.  The department shall be entitled to the


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    CS for SB 28-E                                 First Engrossed



 1  summary procedure provided in s. 51.011.  A licensee affected

 2  under this paragraph shall be afforded an opportunity at

 3  reasonable intervals to demonstrate that he or she can resume

 4  the competent practice for which he or she is licensed with

 5  reasonable skill and safety to patients.

 6         (q)  Performing any treatment or prescribing any

 7  therapy which, by the prevailing standards of the mental

 8  health professions in the community, would constitute

 9  experimentation on human subjects, without first obtaining

10  full, informed, and written consent.

11         (r)  Failing to meet the minimum standards of

12  performance in professional activities when measured against

13  generally prevailing peer performance, including the

14  undertaking of activities for which the licensee is not

15  qualified by training or experience.

16         (s)  Delegating professional responsibilities to a

17  person whom the licensee knows or has reason to know is not

18  qualified by training or experience to perform such

19  responsibilities.

20         (t)  Violating a rule relating to the regulation of the

21  profession or a lawful order of the department previously

22  entered in a disciplinary hearing.

23         (u)  Failing to maintain in confidence a communication

24  made by a patient or client in the context of such services,

25  except as provided in s. 490.0147.

26         (v)  Making public statements which are derived from

27  test data, client contacts, or behavioral research and which

28  identify or damage research subjects or clients.

29         (w)  Violating any provision of this chapter or chapter

30  456, or any rules adopted pursuant thereto.

31  


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    CS for SB 28-E                                 First Engrossed



 1         (2)  The department, or in the case of psychologists,

 2  the board, may enter an order denying licensure or imposing

 3  any of the penalties in s. 456.072(2) against any applicant

 4  for licensure or licensee who is found guilty of violating any

 5  provision of subsection (1) of this section or who is found

 6  guilty of violating any provision of s. 456.072(1).

 7         Section 36.  For the purpose of incorporating the

 8  amendment to section 456.072, Florida Statutes, in references

 9  thereto, section 491.009, Florida Statutes, is reenacted to

10  read:

11         491.009  Discipline.--

12         (1)  The following acts constitute grounds for denial

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

14  456.072(2):

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

16  license, registration, or certificate under this chapter by

17  bribery or fraudulent misrepresentation or through an error of

18  the board or the department.

19         (b)  Having a license, registration, or certificate to

20  practice a comparable profession revoked, suspended, or

21  otherwise acted against, including the denial of certification

22  or licensure by another state, territory, or country.

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

24  adjudication, or having entered a plea of nolo contendere to,

25  a crime in any jurisdiction which directly relates to the

26  practice of his or her profession or the ability to practice

27  his or her profession.  However, in the case of a plea of nolo

28  contendere, the board shall allow the person who is the

29  subject of the disciplinary proceeding to present evidence in

30  mitigation relevant to the underlying charges and

31  circumstances surrounding the plea.


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    CS for SB 28-E                                 First Engrossed



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

 2  obtaining a fee or other thing of value on the representation

 3  that beneficial results from any treatment will be guaranteed.

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

 5  under a name other than one's own.

 6         (f)  Maintaining a professional association with any

 7  person who the applicant, licensee, registered intern, or

 8  certificateholder knows, or has reason to believe, is in

 9  violation of this chapter or of a rule of the department or

10  the board.

11         (g)  Knowingly aiding, assisting, procuring, or

12  advising any nonlicensed, nonregistered, or noncertified

13  person to hold himself or herself out as licensed, registered,

14  or certified under this chapter.

15         (h)  Failing to perform any statutory or legal

16  obligation placed upon a person licensed, registered, or

17  certified under this chapter.

18         (i)  Willfully making or filing a false report or

19  record; failing to file a report or record required by state

20  or federal law; willfully impeding or obstructing the filing

21  of a report or record; or inducing another person to make or

22  file a false report or record or to impede or obstruct the

23  filing of a report or record.  Such report or record includes

24  only a report or record which requires the signature of a

25  person licensed, registered, or certified under this chapter.

26         (j)  Paying a kickback, rebate, bonus, or other

27  remuneration for receiving a patient or client, or receiving a

28  kickback, rebate, bonus, or other remuneration for referring a

29  patient or client to another provider of mental health care

30  services or to a provider of health care services or goods;

31  referring a patient or client to oneself for services on a


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    CS for SB 28-E                                 First Engrossed



 1  fee-paid basis when those services are already being paid for

 2  by some other public or private entity; or entering into a

 3  reciprocal referral agreement.

 4         (k)  Committing any act upon a patient or client which

 5  would constitute sexual battery or which would constitute

 6  sexual misconduct as defined pursuant to s. 491.0111.

 7         (l)  Making misleading, deceptive, untrue, or

 8  fraudulent representations in the practice of any profession

 9  licensed, registered, or certified under this chapter.

10         (m)  Soliciting patients or clients personally, or

11  through an agent, through the use of fraud, intimidation,

12  undue influence, or a form of overreaching or vexatious

13  conduct.

14         (n)  Failing to make available to a patient or client,

15  upon written request, copies of tests, reports, or documents

16  in the possession or under the control of the licensee,

17  registered intern, or certificateholder which have been

18  prepared for and paid for by the patient or client.

19         (o)  Failing to respond within 30 days to a written

20  communication from the department or the board concerning any

21  investigation by the department or the board, or failing to

22  make available any relevant records with respect to any

23  investigation about the licensee's, registered intern's, or

24  certificateholder's conduct or background.

25         (p)  Being unable to practice the profession for which

26  he or she is licensed, registered, or certified under this

27  chapter with reasonable skill or competence as a result of any

28  mental or physical condition or by reason of illness;

29  drunkenness; or excessive use of drugs, narcotics, chemicals,

30  or any other substance. In enforcing this paragraph, upon a

31  finding by the secretary, the secretary's designee, or the


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    CS for SB 28-E                                 First Engrossed



 1  board that probable cause exists to believe that the licensee,

 2  registered intern, or certificateholder is unable to practice

 3  the profession because of the reasons stated in this

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

 5  licensee, registered intern, or certificateholder to submit to

 6  a mental or physical examination by psychologists, physicians,

 7  or other licensees under this chapter, designated by the

 8  department or board. If the licensee, registered intern, or

 9  certificateholder refuses to comply with such order, the

10  department's order directing the examination may be enforced

11  by filing a petition for enforcement in the circuit court in

12  the circuit in which the licensee, registered intern, or

13  certificateholder resides or does business. The licensee,

14  registered intern, or certificateholder against whom the

15  petition is filed shall not be named or identified by initials

16  in any public court records or documents, and the proceedings

17  shall be closed to the public.  The department shall be

18  entitled to the summary procedure provided in s. 51.011. A

19  licensee, registered intern, or certificateholder affected

20  under this paragraph shall at reasonable intervals be afforded

21  an opportunity to demonstrate that he or she can resume the

22  competent practice for which he or she is licensed,

23  registered, or certified with reasonable skill and safety to

24  patients.

25         (q)  Performing any treatment or prescribing any

26  therapy which, by the prevailing standards of the mental

27  health professions in the community, would constitute

28  experimentation on human subjects, without first obtaining

29  full, informed, and written consent.

30         (r)  Failing to meet the minimum standards of

31  performance in professional activities when measured against


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    CS for SB 28-E                                 First Engrossed



 1  generally prevailing peer performance, including the

 2  undertaking of activities for which the licensee, registered

 3  intern, or certificateholder is not qualified by training or

 4  experience.

 5         (s)  Delegating professional responsibilities to a

 6  person whom the licensee, registered intern, or

 7  certificateholder knows or has reason to know is not qualified

 8  by training or experience to perform such responsibilities.

 9         (t)  Violating a rule relating to the regulation of the

10  profession or a lawful order of the department or the board

11  previously entered in a disciplinary hearing.

12         (u)  Failure of the licensee, registered intern, or

13  certificateholder to maintain in confidence a communication

14  made by a patient or client in the context of such services,

15  except as provided in s. 491.0147.

16         (v)  Making public statements which are derived from

17  test data, client contacts, or behavioral research and which

18  identify or damage research subjects or clients.

19         (w)  Violating any provision of this chapter or chapter

20  456, or any rules adopted pursuant thereto.

21         (2)  The department, or, in the case of psychologists,

22  the board, may enter an order denying licensure or imposing

23  any of the penalties in s. 456.072(2) against any applicant

24  for licensure or licensee who is found guilty of violating any

25  provision of subsection (1) of this section or who is found

26  guilty of violating any provision of s. 456.072(1).

27         Section 37.  Paragraph (d) is added to subsection (1)

28  of section 458.345, Florida Statutes, to read:

29         458.345  Registration of resident physicians, interns,

30  and fellows; list of hospital employees; prescribing of

31  medicinal drugs; penalty.--


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    CS for SB 28-E                                 First Engrossed



 1         (1)  Any person desiring to practice as a resident

 2  physician, assistant resident physician, house physician,

 3  intern, or fellow in fellowship training which leads to

 4  subspecialty board certification in this state, or any person

 5  desiring to practice as a resident physician, assistant

 6  resident physician, house physician, intern, or fellow in

 7  fellowship training in a teaching hospital in this state as

 8  defined in s. 408.07(44) or s. 395.805(2), who does not hold a

 9  valid, active license issued under this chapter shall apply to

10  the department to be registered and shall remit a fee not to

11  exceed $300 as set by the board.  The department shall

12  register any applicant the board certifies has met the

13  following requirements:

14         (d)  Has completed, upon initial registration, the

15  1-hour educational course in the prescribing of controlled

16  substances as set forth in section 2 of this act. An applicant

17  who has not taken a course at the time of registration shall

18  be allowed up to 6 months within which to complete this

19  requirement.

20         Section 38.  Paragraph (dd) is added to subsection (1)

21  of section 461.013, Florida Statutes, to read:

22         461.013  Grounds for disciplinary action; action by the

23  board; investigations by department.--

24         (1)  The following acts constitute grounds for denial

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

26  456.072(2):

27         (dd)  Presigning blank prescription forms.

28         Section 39.  Paragraphs (h), (i), (j), (k), and (l) are

29  added to subsection (1) of section 893.04, Florida Statutes,

30  to read:

31         893.04  Pharmacist and practitioner.--


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    CS for SB 28-E                                 First Engrossed



 1         (1)  A pharmacist, in good faith and in the course of

 2  professional practice only, may dispense controlled substances

 3  upon a written or oral prescription of a practitioner, under

 4  the following conditions:

 5         (h)  A pharmacist may not dispense a Schedule II

 6  controlled substance; codeine, hydrocodone, dihydrocodeine,

 7  ethylmorphine, or morphine as scheduled in Schedule II and

 8  Schedule III; or a drug of abuse designated by the Secretary

 9  of Health by rule under the prescription-monitoring system to

10  any individual not personally known to the pharmacist without

11  first obtaining suitable identification and documenting, in a

12  log book kept by the pharmacist, the identity of the

13  individual obtaining the controlled substance. The log book

14  entry must contain the printed name, address, telephone number

15  if available, driver's license number or other suitable

16  identification number, and signature of the person obtaining

17  the controlled substance or drug. If the individual does not

18  have suitable identification or it is impracticable to obtain

19  such identification, the pharmacist may dispense the

20  controlled substance or drug only when the pharmacist

21  determines, in the exercise of her or his professional

22  judgment, that the order is valid and necessary for treatment.

23  In such a case, the pharmacist or his or her designee must

24  obtain the other information required under this paragraph,

25  and the pharmacist or pharmacist's designee must sign the log

26  to indicate that suitable identification was not available and

27  that the pharmacist's professional judgment was exercised

28  prior to dispensing the controlled substance or drug. The

29  Board of Pharmacy may adopt, by rule, procedures by which a

30  pharmacist must verify the validity of a prescription for a

31  Schedule II controlled substance; other drug designated by the


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    CS for SB 28-E                                 First Engrossed



 1  Secretary of Health under this section; or codeine,

 2  hydrocodone, dihydrocodeine, ethylmorphine, or morphine as

 3  scheduled in Schedule II and Schedule III, for circumstances

 4  when it is otherwise impracticable for the pharmacist or

 5  dispensing practitioner to obtain suitable identification from

 6  the patient or the patient's agent. For purposes of this

 7  section, identification is suitable only if it contains the

 8  photograph, the printed name, and the signature of the

 9  individual obtaining the Schedule II controlled substance or

10  drug of abuse under the prescription-monitoring system.

11         (i)  Any pharmacist that dispenses a Schedule II

12  controlled substance or drug subject to the requirements of

13  this section when dispensed by mail shall be exempt from the

14  requirements to obtain suitable identification.

15         (j)  All prescriptions issued for a Schedule II

16  controlled substance; codeine, hydrocodone, dihydrocodeine,

17  ethylmorphine, or morphine as scheduled in Schedule II and

18  Schedule III; or a drug of abuse under the

19  prescription-monitoring system which has been designated by

20  the Secretary of Health by rule, must include both a written

21  and numerical notation of quantity on the face of the

22  prescription.

23         (k)  A pharmacist may not dispense more than a 30-day

24  supply of a controlled substance listed in Schedule III upon

25  an oral prescription.

26         (l)  A pharmacist may not knowingly fill a prescription

27  that has been mutilated or forged for a Schedule II controlled

28  substance; codeine, hydrocodone, dihydrocodeine,

29  ethylmorphine, and morphine as scheduled in Schedule II and

30  Schedule III; or a drug of abuse under the

31  


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    CS for SB 28-E                                 First Engrossed



 1  prescription-monitoring system which has been designated by

 2  the Secretary of Health by rule.

 3         Section 40.  Each local and regional board of education

 4  shall adopt and implement policies prohibiting any school

 5  personnel from recommending the use of psychotropic drugs for

 6  any child. The provisions of this section shall not prohibit

 7  school medical staff from recommending that a child be

 8  evaluated by a medical practitioner.

 9         Section 41.  If any law that is amended by this act was

10  also amended by a law enacted at the 2002 Regular Session of

11  the Legislature, such laws shall be construed as if they had

12  been enacted at the same session of the Legislature, and full

13  effect should be given to each if that is possible.

14         Section 42.  For Fiscal Year 2002-2003, the lump sum of

15  $1,050,000 from nonrecurring General Revenue is appropriated

16  to the Department of Health for the purpose of implementing

17  the provisions of this act.

18         Section 43.  This act shall take effect July 1, 2002.

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  


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