| 1 | The Committee on Health Care recommends the following: |
| 2 |
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| 3 | Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 | A bill to be entitled |
| 6 | An act relating to health care; providing legislative |
| 7 | findings and intent; amending s. 456.072, F.S., relating |
| 8 | to grounds for discipline, penalties, and enforcement |
| 9 | applicable to health care practitioners; providing that a |
| 10 | practitioner's failure to disclose his or her training in |
| 11 | health care advertisements and in professional |
| 12 | relationships with patients constitutes grounds for |
| 13 | disciplinary action; providing exceptions; providing |
| 14 | penalties; specifying that a reference to the section |
| 15 | constitutes a general reference under the doctrine of |
| 16 | incorporation by reference; providing an effective date. |
| 17 |
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| 18 | Be It Enacted by the Legislature of the State of Florida: |
| 19 |
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| 20 | Section 1. The Legislature finds that there exists a |
| 21 | compelling state interest in patients being informed of the |
| 22 | credentials of the health care practitioners who treat them and |
| 23 | in the public being protected from misleading health care |
| 24 | advertising. The Legislature further finds that the areas of |
| 25 | health care practice licensure can be extremely confusing for |
| 26 | patients and that health care practitioners can easily mislead |
| 27 | patients into believing that the practitioner is better |
| 28 | qualified than other health care practitioners simply by |
| 29 | creating a sham practice designation. Therefore, the Legislature |
| 30 | has determined that the most direct and effective manner in |
| 31 | which to protect patients from this identifiable harm is to |
| 32 | ensure that patients and the public be informed of the training |
| 33 | of health care practitioners and intends by this act to require |
| 34 | the provision of such information. |
| 35 | Section 2. Section 456.072, Florida Statutes, is amended |
| 36 | to read: |
| 37 | 456.072 Grounds for discipline; penalties; enforcement.-- |
| 38 | (1) The following acts shall constitute grounds for which |
| 39 | the disciplinary actions specified in subsection (2) may be |
| 40 | taken: |
| 41 | (a) Making misleading, deceptive, or fraudulent |
| 42 | representations in or related to the practice of the licensee's |
| 43 | profession. |
| 44 | (b) Intentionally violating any rule adopted by the board |
| 45 | or the department, as appropriate. |
| 46 | (c) Being convicted or found guilty of, or entering a plea |
| 47 | of guilty or nolo contendere to, regardless of adjudication, a |
| 48 | crime in any jurisdiction which relates to the practice of, or |
| 49 | the ability to practice, a licensee's profession. |
| 50 | (d) Using a Class III or a Class IV laser device or |
| 51 | product, as defined by federal regulations, without having |
| 52 | complied with the rules adopted pursuant to s. 501.122(2) |
| 53 | governing the registration of such devices. |
| 54 | (e) Failing to comply with the educational course |
| 55 | requirements for human immunodeficiency virus and acquired |
| 56 | immune deficiency syndrome. |
| 57 | (f) Having a license or the authority to practice any |
| 58 | regulated profession revoked, suspended, or otherwise acted |
| 59 | against, including the denial of licensure, by the licensing |
| 60 | authority of any jurisdiction, including its agencies or |
| 61 | subdivisions, for a violation that would constitute a violation |
| 62 | under Florida law. The licensing authority's acceptance of a |
| 63 | relinquishment of licensure, stipulation, consent order, or |
| 64 | other settlement, offered in response to or in anticipation of |
| 65 | the filing of charges against the license, shall be construed as |
| 66 | action against the license. |
| 67 | (g) Having been found liable in a civil proceeding for |
| 68 | knowingly filing a false report or complaint with the department |
| 69 | against another licensee. |
| 70 | (h) Attempting to obtain, obtaining, or renewing a license |
| 71 | to practice a profession by bribery, by fraudulent |
| 72 | misrepresentation, or through an error of the department or the |
| 73 | board. |
| 74 | (i) Except as provided in s. 465.016, failing to report to |
| 75 | the department any person who the licensee knows is in violation |
| 76 | of this chapter, the chapter regulating the alleged violator, or |
| 77 | the rules of the department or the board. |
| 78 | (j) Aiding, assisting, procuring, employing, or advising |
| 79 | any unlicensed person or entity to practice a profession |
| 80 | contrary to this chapter, the chapter regulating the profession, |
| 81 | or the rules of the department or the board. |
| 82 | (k) Failing to perform any statutory or legal obligation |
| 83 | placed upon a licensee. For purposes of this section, failing to |
| 84 | repay a student loan issued or guaranteed by the state or the |
| 85 | Federal Government in accordance with the terms of the loan or |
| 86 | failing to comply with service scholarship obligations shall be |
| 87 | considered a failure to perform a statutory or legal obligation, |
| 88 | and the minimum disciplinary action imposed shall be a |
| 89 | suspension of the license until new payment terms are agreed |
| 90 | upon or the scholarship obligation is resumed, followed by |
| 91 | probation for the duration of the student loan or remaining |
| 92 | scholarship obligation period, and a fine equal to 10 percent of |
| 93 | the defaulted loan amount. Fines collected shall be deposited |
| 94 | into the Medical Quality Assurance Trust Fund. |
| 95 | (l) Making or filing a report which the licensee knows to |
| 96 | be false, intentionally or negligently failing to file a report |
| 97 | or record required by state or federal law, or willfully |
| 98 | impeding or obstructing another person to do so. Such reports or |
| 99 | records shall include only those that are signed in the capacity |
| 100 | of a licensee. |
| 101 | (m) Making deceptive, untrue, or fraudulent |
| 102 | representations in or related to the practice of a profession or |
| 103 | employing a trick or scheme in or related to the practice of a |
| 104 | profession. |
| 105 | (n) Exercising influence on the patient or client for the |
| 106 | purpose of financial gain of the licensee or a third party. |
| 107 | (o) Practicing or offering to practice beyond the scope |
| 108 | permitted by law or accepting and performing professional |
| 109 | responsibilities the licensee knows, or has reason to know, the |
| 110 | licensee is not competent to perform. |
| 111 | (p) Delegating or contracting for the performance of |
| 112 | professional responsibilities by a person when the licensee |
| 113 | delegating or contracting for performance of such |
| 114 | responsibilities knows, or has reason to know, such person is |
| 115 | not qualified by training, experience, and authorization when |
| 116 | required to perform them. |
| 117 | (q) Violating a lawful order of the department or the |
| 118 | board, or failing to comply with a lawfully issued subpoena of |
| 119 | the department. |
| 120 | (r) Improperly interfering with an investigation or |
| 121 | inspection authorized by statute, or with any disciplinary |
| 122 | proceeding. |
| 123 | (s) Failing to comply with the educational course |
| 124 | requirements for domestic violence. |
| 125 | (t) In any advertisement for health care services, and |
| 126 | also during the first in-person patient encounter, failing to |
| 127 | disclose the type of license under which the practitioner is |
| 128 | operating. This paragraph does not apply to a practitioner while |
| 129 | the practitioner is providing services in a facility licensed |
| 130 | under chapter 394, chapter 395, or chapter 400. |
| 131 | (u)(t) Failing to comply with the requirements of ss. |
| 132 | 381.026 and 381.0261 to provide patients with information about |
| 133 | their patient rights and how to file a patient complaint. |
| 134 | (v)(u) Engaging or attempting to engage in sexual |
| 135 | misconduct as defined and prohibited in s. 456.063(1). |
| 136 | (w)(v) Failing to comply with the requirements for |
| 137 | profiling and credentialing, including, but not limited to, |
| 138 | failing to provide initial information, failing to timely |
| 139 | provide updated information, or making misleading, untrue, |
| 140 | deceptive, or fraudulent representations on a profile, |
| 141 | credentialing, or initial or renewal licensure application. |
| 142 | (x)(w) Failing to report to the board, or the department |
| 143 | if there is no board, in writing within 30 days after the |
| 144 | licensee has been convicted or found guilty of, or entered a |
| 145 | plea of nolo contendere to, regardless of adjudication, a crime |
| 146 | in any jurisdiction. Convictions, findings, adjudications, and |
| 147 | pleas entered into prior to the enactment of this paragraph must |
| 148 | be reported in writing to the board, or department if there is |
| 149 | no board, on or before October 1, 1999. |
| 150 | (y)(x) Using information about people involved in motor |
| 151 | vehicle accidents which has been derived from accident reports |
| 152 | made by law enforcement officers or persons involved in |
| 153 | accidents pursuant to s. 316.066, or using information published |
| 154 | in a newspaper or other news publication or through a radio or |
| 155 | television broadcast that has used information gained from such |
| 156 | reports, for the purposes of commercial or any other |
| 157 | solicitation whatsoever of the people involved in such |
| 158 | accidents. |
| 159 | (z)(y) Being unable to practice with reasonable skill and |
| 160 | safety to patients by reason of illness or use of alcohol, |
| 161 | drugs, narcotics, chemicals, or any other type of material or as |
| 162 | a result of any mental or physical condition. In enforcing this |
| 163 | paragraph, the department shall have, upon a finding of the |
| 164 | secretary or the secretary's designee that probable cause exists |
| 165 | to believe that the licensee is unable to practice because of |
| 166 | the reasons stated in this paragraph, the authority to issue an |
| 167 | order to compel a licensee to submit to a mental or physical |
| 168 | examination by physicians designated by the department. If the |
| 169 | licensee refuses to comply with such order, the department's |
| 170 | order directing such examination may be enforced by filing a |
| 171 | petition for enforcement in the circuit court where the licensee |
| 172 | resides or does business. The department shall be entitled to |
| 173 | the summary procedure provided in s. 51.011. A licensee or |
| 174 | certificateholder affected under this paragraph shall at |
| 175 | reasonable intervals be afforded an opportunity to demonstrate |
| 176 | that he or she can resume the competent practice of his or her |
| 177 | profession with reasonable skill and safety to patients. |
| 178 | (aa)(z) Testing positive for any drug, as defined in s. |
| 179 | 112.0455, on any confirmed preemployment or employer-ordered |
| 180 | drug screening when the practitioner does not have a lawful |
| 181 | prescription and legitimate medical reason for using such drug. |
| 182 | (bb)(aa) Performing or attempting to perform health care |
| 183 | services on the wrong patient, a wrong-site procedure, a wrong |
| 184 | procedure, or an unauthorized procedure or a procedure that is |
| 185 | medically unnecessary or otherwise unrelated to the patient's |
| 186 | diagnosis or medical condition. For the purposes of this |
| 187 | paragraph, performing or attempting to perform health care |
| 188 | services includes the preparation of the patient. |
| 189 | (cc)(bb) Leaving a foreign body in a patient, such as a |
| 190 | sponge, clamp, forceps, surgical needle, or other paraphernalia |
| 191 | commonly used in surgical, examination, or other diagnostic |
| 192 | procedures. For the purposes of this paragraph, it shall be |
| 193 | legally presumed that retention of a foreign body is not in the |
| 194 | best interest of the patient and is not within the standard of |
| 195 | care of the profession, regardless of the intent of the |
| 196 | professional. |
| 197 | (dd)(cc) Violating any provision of this chapter, the |
| 198 | applicable practice act, or any rules adopted pursuant thereto. |
| 199 | (ee)(dd) With respect to making a personal injury |
| 200 | protection claim as required by s. 627.736, intentionally |
| 201 | submitting a claim, statement, or bill that has been "upcoded" |
| 202 | as defined in s. 627.732. |
| 203 | (ff)(ee) With respect to making a personal injury |
| 204 | protection claim as required by s. 627.736, intentionally |
| 205 | submitting a claim, statement, or bill for payment of services |
| 206 | that were not rendered. |
| 207 | (2) When the board, or the department when there is no |
| 208 | board, finds any person guilty of the grounds set forth in |
| 209 | subsection (1) or of any grounds set forth in the applicable |
| 210 | practice act, including conduct constituting a substantial |
| 211 | violation of subsection (1) or a violation of the applicable |
| 212 | practice act which occurred prior to obtaining a license, it may |
| 213 | enter an order imposing one or more of the following penalties: |
| 214 | (a) Refusal to certify, or to certify with restrictions, |
| 215 | an application for a license. |
| 216 | (b) Suspension or permanent revocation of a license. |
| 217 | (c) Restriction of practice or license, including, but not |
| 218 | limited to, restricting the licensee from practicing in certain |
| 219 | settings, restricting the licensee to work only under designated |
| 220 | conditions or in certain settings, restricting the licensee from |
| 221 | performing or providing designated clinical and administrative |
| 222 | services, restricting the licensee from practicing more than a |
| 223 | designated number of hours, or any other restriction found to be |
| 224 | necessary for the protection of the public health, safety, and |
| 225 | welfare. |
| 226 | (d) Imposition of an administrative fine not to exceed |
| 227 | $10,000 for each count or separate offense. If the violation is |
| 228 | for fraud or making a false or fraudulent representation, the |
| 229 | board, or the department if there is no board, must impose a |
| 230 | fine of $10,000 per count or offense. |
| 231 | (e) Issuance of a reprimand or letter of concern. |
| 232 | (f) Placement of the licensee on probation for a period of |
| 233 | time and subject to such conditions as the board, or the |
| 234 | department when there is no board, may specify. Those conditions |
| 235 | may include, but are not limited to, requiring the licensee to |
| 236 | undergo treatment, attend continuing education courses, submit |
| 237 | to be reexamined, work under the supervision of another |
| 238 | licensee, or satisfy any terms which are reasonably tailored to |
| 239 | the violations found. |
| 240 | (g) Corrective action. |
| 241 | (h) Imposition of an administrative fine in accordance |
| 242 | with s. 381.0261 for violations regarding patient rights. |
| 243 | (i) Refund of fees billed and collected from the patient |
| 244 | or a third party on behalf of the patient. |
| 245 | (j) Requirement that the practitioner undergo remedial |
| 246 | education. |
| 247 |
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| 248 | In determining what action is appropriate, the board, or |
| 249 | department when there is no board, must first consider what |
| 250 | sanctions are necessary to protect the public or to compensate |
| 251 | the patient. Only after those sanctions have been imposed may |
| 252 | the disciplining authority consider and include in the order |
| 253 | requirements designed to rehabilitate the practitioner. All |
| 254 | costs associated with compliance with orders issued under this |
| 255 | subsection are the obligation of the practitioner. |
| 256 | (3)(a) Notwithstanding subsection (2), if the ground for |
| 257 | disciplinary action is the first-time failure of the licensee to |
| 258 | satisfy continuing education requirements established by the |
| 259 | board, or by the department if there is no board, the board or |
| 260 | department, as applicable, shall issue a citation in accordance |
| 261 | with s. 456.077 and assess a fine, as determined by the board or |
| 262 | department by rule. In addition, for each hour of continuing |
| 263 | education not completed or completed late, the board or |
| 264 | department, as applicable, may require the licensee to take 1 |
| 265 | additional hour of continuing education for each hour not |
| 266 | completed or completed late. |
| 267 | (b) Notwithstanding subsection (2), if the ground for |
| 268 | disciplinary action is the first-time violation of a practice |
| 269 | act for unprofessional conduct, as used in ss. 464.018(1)(h), |
| 270 | 467.203(1)(f), 468.365(1)(f), and 478.52(1)(f), and no actual |
| 271 | harm to the patient occurred, the board or department, as |
| 272 | applicable, shall issue a citation in accordance with s. 456.077 |
| 273 | and assess a penalty as determined by rule of the board or |
| 274 | department. |
| 275 | (4) In addition to any other discipline imposed through |
| 276 | final order, or citation, entered on or after July 1, 2001, |
| 277 | pursuant to this section or discipline imposed through final |
| 278 | order, or citation, entered on or after July 1, 2001, for a |
| 279 | violation of any practice act, the board, or the department when |
| 280 | there is no board, shall assess costs related to the |
| 281 | investigation and prosecution of the case. Such costs related to |
| 282 | the investigation and prosecution include, but are not limited |
| 283 | to, salaries and benefits of personnel, costs related to the |
| 284 | time spent by the attorney and other personnel working on the |
| 285 | case, and any other expenses incurred by the department for the |
| 286 | case. The board, or the department when there in no board, shall |
| 287 | determine the amount of costs to be assessed after its |
| 288 | consideration of an affidavit of itemized costs and any written |
| 289 | objections thereto. In any case where the board or the |
| 290 | department imposes a fine or assessment and the fine or |
| 291 | assessment is not paid within a reasonable time, such reasonable |
| 292 | time to be prescribed in the rules of the board, or the |
| 293 | department when there is no board, or in the order assessing |
| 294 | such fines or costs, the department or the Department of Legal |
| 295 | Affairs may contract for the collection of, or bring a civil |
| 296 | action to recover, the fine or assessment. |
| 297 | (5) In addition to, or in lieu of, any other remedy or |
| 298 | criminal prosecution, the department may file a proceeding in |
| 299 | the name of the state seeking issuance of an injunction or a |
| 300 | writ of mandamus against any person who violates any of the |
| 301 | provisions of this chapter, or any provision of law with respect |
| 302 | to professions regulated by the department, or any board |
| 303 | therein, or the rules adopted pursuant thereto. |
| 304 | (6) In the event the board, or the department when there |
| 305 | is no board, determines that revocation of a license is the |
| 306 | appropriate penalty, the revocation shall be permanent. However, |
| 307 | the board may establish by rule requirements for reapplication |
| 308 | by applicants whose licenses have been permanently revoked. Such |
| 309 | requirements may include, but shall not be limited to, |
| 310 | satisfying current requirements for an initial license. |
| 311 | (7) The purpose of this section is to facilitate uniform |
| 312 | discipline for those actions made punishable under this section |
| 313 | and, to this end, a reference to this section constitutes a |
| 314 | general reference under the doctrine of incorporation by |
| 315 | reference. |
| 316 | Section 3. This act shall take effect July 1, 2004. |