HB 1477 2003
1	A bill to be entitled
2	An act relating to health care practitioners; amending s.
3	456.076, F.S., relating to treatment programs for impaired
4	practitioners; providing certain rights of a licensee
5	against whom a legally sufficient complaint involving
6	impairment has been filed with the Department of Health;
7	authorizing the licensee to review the complaint and
8	evidence and to contest the complaint in writing or at a
9	hearing in person; providing conditions on the limiting or
10	suspension of the licensee from practice; requiring notice
11	of such rights to licensees subject to investigations
12	initiated by the department; providing an effective date.
13
14	Be It Enacted by the Legislature of the State of Florida:
15
16	Section 1. Section 456.076, Florida Statutes, is amended
17	to read:
18	456.076 Treatment programs for impaired practitioners.--
19	(1) For professions that do not have impaired practitioner
20	programs provided for in their practice acts, the department
21	shall, by rule, designate approved impaired practitioner
22	programs under this section. The department may adopt rules
23	setting forth appropriate criteria for approval of treatment
24	providers. The rules may specify the manner in which the
25	consultant, retained as set forth in subsection (2), works with
26	the department in intervention, requirements for evaluating and
27	treating a professional, and requirements for the continued care
28	and monitoring of a professional by the consultant by an
29	approved treatment provider.
30	(2) The department shall retain one or more impaired
31	practitioner consultants. A consultant shall be a licensee under
32	the jurisdiction of the Division of Medical Quality Assurance
33	within the department, and at least one consultant must be a
34	practitioner or recovered practitioner licensed under chapter
35	458, chapter 459, or part I of chapter 464. The consultant shall
36	assist the probable cause panel and department in carrying out
37	the responsibilities of this section. This shall include working
38	with department investigators to determine whether a
39	practitioner is, in fact, impaired.
40	(3)(a) Whenever the department receives a written or oral
41	legally sufficient complaint alleging that a licensee under the
42	jurisdiction of the Division of Medical Quality Assurance within
43	the department is impaired as a result of the misuse or abuse of
44	alcohol or drugs, or both, or due to a mental or physical
45	condition which could affect the licensee's ability to practice
46	with skill and safety, and no complaint against the licensee
47	other than impairment exists, the reporting of such information
48	shall not constitute grounds for discipline pursuant to s.
49	456.072 or the corresponding grounds for discipline within the
50	applicable practice act if the probable cause panel of the
51	appropriate board, or the department when there is no board,
52	finds:
53	1. The licensee has acknowledged the impairment problem.
54	2. The licensee has voluntarily enrolled in an
55	appropriate, approved treatment program.
56	3. The licensee has voluntarily withdrawn from practice or
57	limited the scope of practice as required by the consultant, in
58	each case, until such time as the panel, or the department when
59	there is no board, is satisfied the licensee has successfully
60	completed an approved treatment program.
61	4. The licensee has executed releases for medical records,
62	authorizing the release of all records of evaluations,
63	diagnoses, and treatment of the licensee, including records of
64	treatment for emotional or mental conditions, to the consultant.
65	The consultant shall make no copies or reports of records that
66	do not regard the issue of the licensee's impairment and his or
67	her participation in a treatment program.
68	(b) Whenever the department receives a legally sufficient
69	complaint alleging that a licensee under the jurisdiction of the
70	Division of Medical Quality Assurance within the department is
71	impaired as a result of the misuse or abuse of alcohol or drugs,
72	or both, or due to a mental or physical condition which could
73	affect the licensee's ability to practice with skill and safety,
74	the department shall promptly furnish to the licensee or the
75	licensee’s attorney a copy of the complaint that resulted in the
76	initiation of the investigation and a copy of all evidence upon
77	which the complaint is based. If the secretary of the
78	department, or the secretary's designee, and the chair of the
79	respective board or the chair of its probable cause panel agree
80	in writing that such notification would be detrimental to the
81	investigation, the department may withhold notification pending
82	a finding of probable cause. Once probable cause has been found
83	to warrant further action by the board, or department if there
84	is no board, the department shall notify the licensee as set
85	forth in this paragraph.
86	(c)(b)If, however, the department has not received a
87	legally sufficient complaint and the licensee agrees to withdraw
88	from practice until such time as the consultant determines the
89	licensee has satisfactorily completed an approved treatment
90	program or evaluation, the probable cause panel, or the
91	department when there is no board, shall not become involved in
92	the licensee's case.
93	(d)(c)Inquiries related to impairment treatment programs
94	designed to provide information to the licensee and others and
95	which do not indicate that the licensee presents a danger to the
96	public shall not constitute a complaint within the meaning of s.
97	456.073 and shall be exempt from the provisions of this
98	subsection.
99	(e)(d)Whenever the department receives a legally
100	sufficient complaint alleging that a licensee is impaired as
101	described in paragraph (a) and no complaint against the licensee
102	other than impairment exists, the department shall forward all
103	information in its possession regarding the impaired licensee to
104	the consultant. For the purposes of this section, a suspension
105	from hospital staff privileges due to the impairment does not
106	constitute a complaint.
107	(f)(e)The probable cause panel, or the department when
108	there is no board, shall work directly with the consultant, and
109	all information concerning a practitioner obtained from the
110	consultant by the panel, or the department when there is no
111	board, shall remain confidential and exempt from the provisions
112	of s. 119.07(1), subject to the provisions of subsections (5)
113	and (6).
114	(g)(f) A finding of probable cause shall not be made when
115	as long as the panel, or the department when there is no board,
116	is satisfied, based upon information it receives from the
117	consultant and the department, that the licensee is progressing
118	satisfactorily in an approved impaired practitioner program and
119	no other complaint against the licensee exists and the licensee
120	has:
121	1. Acknowledged the impairment problem.
122	2. Voluntarily enrolled in an appropriate, approved
123	treatment program.
124	3. Voluntarily withdrawn from practice or limited the
125	scope of practice as required by the consultant, in each case,
126	until such time as the panel, or the department when there is no
127	board, is satisfied the licensee has successfully completed an
128	approved treatment program.
129	4. Executed releases for medical records, authorizing the
130	release of all records of evaluations, diagnoses, and treatment
131	of the licensee, including records of treatment for emotional or
132	mental conditions, to the consultant. The consultant shall make
133	no copies or reports of records that do not regard the issue of
134	the licensee's impairment and his or her participation in a
135	treatment program.
136	(4) In any disciplinary action for a violation other than
137	impairment in which a licensee establishes the violation for
138	which the licensee is being prosecuted was due to or connected
139	with impairment and further establishes the licensee is
140	satisfactorily progressing through or has successfully completed
141	an approved treatment program pursuant to this section, such
142	information may be considered by the board, or the department
143	when there is no board, as a mitigating factor in determining
144	the appropriate penalty. This subsection does not limit
145	mitigating factors the board may consider.
146	(5)(a) An approved treatment provider shall, upon request,
147	disclose to the consultant all information in its possession
148	regarding the issue of a licensee's impairment and participation
149	in the treatment program. All information obtained by the
150	consultant and department pursuant to this section is
151	confidential and exempt from the provisions of s. 119.07(1),
152	subject to the provisions of this subsection and subsection (6).
153	Failure to provide such information to the consultant is grounds
154	for withdrawal of approval of such program or provider.
155	(b) If in the opinion of the consultant, after
156	consultation with the treatment provider, an impaired licensee
157	has not progressed satisfactorily in a treatment program, all
158	information regarding the issue of a licensee's impairment and
159	participation in a treatment program in the consultant's
160	possession shall be disclosed to the department. Such disclosure
161	shall constitute a complaint pursuant to the general provisions
162	of s. 456.073. Whenever the consultant concludes that impairment
163	affects a licensee's practice and constitutes an immediate,
164	serious danger to the public health, safety, or welfare, that
165	conclusion shall be communicated to the secretary of the
166	department.
167	(6) A consultant, licensee, or approved treatment provider
168	who makes a disclosure pursuant to this section is not subject
169	to civil liability for such disclosure or its consequences. The
170	provisions of s. 766.101 apply to any officer, employee, or
171	agent of the department or the board and to any officer,
172	employee, or agent of any entity with which the department has
173	contracted pursuant to this section.
174	(7) Neither the board, or department when there is no
175	board, nor the consultant, retained as set forth in subsection
176	(2), may limit a licensee's practice or suspend a licensee from
177	practice while the consultant, board, or department investigates
178	the complaint, unless one of the following conditions is met:
179	(a) The licensee waives his or her right under subsection
180	(8) to contest the complaint;
181	(b) A probable cause panel has issued a summary emergency
182	order under subsection (9); or
183	(c) A probable cause panel, after conducting a hearing,
184	has determined that sufficient evidence exists that the licensee
185	presents a clear and present danger to society if he or she
186	continues to practice.
187	(8)(a) A licensee against whom a complaint is filed may
188	elect to contest the complaint by:
189	1. Submitting a written response to the information
190	contained in the complaint within 20 days after service to the
191	licensee of the complaint; or
192	2. Requesting a hearing within 20 days after service to
193	the licensee of the complaint at which he or she may present
194	evidence or testimony and cross-examine any person offering
195	testimony or sworn statements as part of the investigation.
196	(b) The licensee's written response and any evidence
197	presented at a hearing shall be considered by the probable cause
198	panel.
199	(9)(a) The right to contest a complaint does not prohibit
200	the issuance of a summary emergency order if necessary to
201	protect the public. Such emergency order must be delivered in
202	writing to the licensee prior to taking effect. For the purposes
203	of this paragraph, a facsimile copy of the order shall be
204	sufficient. The order shall be accompanied by a copy of all
205	evidence upon which it is based.
206	(b) Upon receipt of the order, the licensee shall
207	immediately cease and desist practicing under his or her
208	license.
209	(c) The licensee shall be entitled to an emergency hearing
210	in front of the probable cause panel, within 72 hours after
211	receipt of the order, to present rebuttal evidence and cross-
212	examine witnesses. A written decision by the panel shall be
213	issued within 24 hours after the emergency hearing ends stating
214	findings of whether the licensee poses a clear and present
215	danger to the safety of the public if not otherwise suspended
216	from practice during the pending investigation as set forth in
217	this section.
218	(10)(a) The licensee against whom a complaint was made
219	shall, prior to a final judgment of impairment by the
220	consultant, board, or department, have the following rights:
221	1. The right to review a copy of all accusations against
222	him or her. The department may withhold the name of the
223	complainant when applicable.
224	2. The right to review all evidence obtained during the
225	investigation.
226	3. The right to rebut the accusations in a hearing or the
227	right to waive his or her right to a hearing and instead submit
228	a written rebuttal.
229	4. The right to depose under oath any person offering
230	testimony or sworn statements as part of the investigation.
231	5. The right to record, via audiorecorder, videorecorder,
232	or a court reporter, any investigative meeting, interview,
233	hearing, or counseling session in which the licensee
234	participates.
235	6. The right to be represented by competent counsel during
236	all portions of the investigation.
237	(b) When the department initiates an investigation
238	concerning impairment of a licensee, the department shall
239	provide the licensee in writing a detailed summary of all of his
240	or her rights provided by law.
241	Section 2. This act shall take effect July 1, 2003.