Senate Bill sb0560
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    Florida Senate - 2004                                   SB 560
    By Senator Bennett
    21-605-04                                           See HB 121
  1                      A bill to be entitled
  2         An act relating to health care; providing
  3         legislative findings and intent; amending s.
  4         456.072, F.S., relating to grounds for
  5         discipline, penalties, and enforcement
  6         applicable to health care practitioners;
  7         providing that a practitioner's failure to
  8         disclose his or her training in health care
  9         advertisements and in professional
10         relationships with patients constitutes grounds
11         for disciplinary action; providing exceptions;
12         providing penalties; specifying that a
13         reference to the section constitutes a general
14         reference under the doctrine of incorporation
15         by reference; providing an effective date.
16  
17  Be It Enacted by the Legislature of the State of Florida:
18  
19         Section 1.  The Legislature finds that there exists a
20  compelling state interest in patients being informed of the
21  credentials of the health care practitioners who treat them
22  and in the public being protected from misleading health care
23  advertising. The Legislature further finds that the areas of
24  health care practice licensure can be extremely confusing for
25  patients and that health care practitioners can easily mislead
26  patients into believing that the practitioner is better
27  qualified than other health care practitioners simply by
28  creating a sham practice designation. Therefore, the
29  Legislature has determined that the most direct and effective
30  manner in which to protect patients from this identifiable
31  harm is to ensure that patients and the public be informed of
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    Florida Senate - 2004                                   SB 560
    21-605-04                                           See HB 121
 1  the training of health care practitioners and intends by this
 2  act to require the provision of such information.
 3         Section 2.  Section 456.072, Florida Statutes, is
 4  amended to read:
 5         456.072  Grounds for discipline; penalties;
 6  enforcement.--
 7         (1)  The following acts shall constitute grounds for
 8  which the disciplinary actions specified in subsection (2) may
 9  be taken:
10         (a)  Making misleading, deceptive, or fraudulent
11  representations in or related to the practice of the
12  licensee's profession.
13         (b)  Intentionally violating any rule adopted by the
14  board or the department, as appropriate.
15         (c)  Being convicted or found guilty of, or entering a
16  plea of guilty or nolo contendere to, regardless of
17  adjudication, a crime in any jurisdiction which relates to the
18  practice of, or the ability to practice, a licensee's
19  profession.
20         (d)  Using a Class III or a Class IV laser device or
21  product, as defined by federal regulations, without having
22  complied with the rules adopted pursuant to s. 501.122(2)
23  governing the registration of such devices.
24         (e)  Failing to comply with the educational course
25  requirements for human immunodeficiency virus and acquired
26  immune deficiency syndrome.
27         (f)  Having a license or the authority to practice any
28  regulated profession revoked, suspended, or otherwise acted
29  against, including the denial of licensure, by the licensing
30  authority of any jurisdiction, including its agencies or
31  subdivisions, for a violation that would constitute a
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    Florida Senate - 2004                                   SB 560
    21-605-04                                           See HB 121
 1  violation under Florida law. The licensing authority's
 2  acceptance of a relinquishment of licensure, stipulation,
 3  consent order, or other settlement, offered in response to or
 4  in anticipation of the filing of charges against the license,
 5  shall be construed as action against the license.
 6         (g)  Having been found liable in a civil proceeding for
 7  knowingly filing a false report or complaint with the
 8  department against another licensee.
 9         (h)  Attempting to obtain, obtaining, or renewing a
10  license to practice a profession by bribery, by fraudulent
11  misrepresentation, or through an error of the department or
12  the board.
13         (i)  Except as provided in s. 465.016, failing to
14  report to the department any person who the licensee knows is
15  in violation of this chapter, the chapter regulating the
16  alleged violator, or the rules of the department or the board.
17         (j)  Aiding, assisting, procuring, employing, or
18  advising any unlicensed person or entity to practice a
19  profession contrary to this chapter, the chapter regulating
20  the profession, or the rules of the department or the board.
21         (k)  Failing to perform any statutory or legal
22  obligation placed upon a licensee. For purposes of this
23  section, failing to repay a student loan issued or guaranteed
24  by the state or the Federal Government in accordance with the
25  terms of the loan or failing to comply with service
26  scholarship obligations shall be considered a failure to
27  perform a statutory or legal obligation, and the minimum
28  disciplinary action imposed shall be a suspension of the
29  license until new payment terms are agreed upon or the
30  scholarship obligation is resumed, followed by probation for
31  the duration of the student loan or remaining scholarship
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    Florida Senate - 2004                                   SB 560
    21-605-04                                           See HB 121
 1  obligation period, and a fine equal to 10 percent of the
 2  defaulted loan amount. Fines collected shall be deposited into
 3  the Medical Quality Assurance Trust Fund.
 4         (l)  Making or filing a report which the licensee knows
 5  to be false, intentionally or negligently failing to file a
 6  report or record required by state or federal law, or
 7  willfully impeding or obstructing another person to do so.
 8  Such reports or records shall include only those that are
 9  signed in the capacity of a licensee.
10         (m)  Making deceptive, untrue, or fraudulent
11  representations in or related to the practice of a profession
12  or employing a trick or scheme in or related to the practice
13  of a profession.
14         (n)  Exercising influence on the patient or client for
15  the purpose of financial gain of the licensee or a third
16  party.
17         (o)  Practicing or offering to practice beyond the
18  scope permitted by law or accepting and performing
19  professional responsibilities the licensee knows, or has
20  reason to know, the licensee is not competent to perform.
21         (p)  Delegating or contracting for the performance of
22  professional responsibilities by a person when the licensee
23  delegating or contracting for performance of such
24  responsibilities knows, or has reason to know, such person is
25  not qualified by training, experience, and authorization when
26  required to perform them.
27         (q)  Violating a lawful order of the department or the
28  board, or failing to comply with a lawfully issued subpoena of
29  the department.
30  
31  
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    Florida Senate - 2004                                   SB 560
    21-605-04                                           See HB 121
 1         (r)  Improperly interfering with an investigation or
 2  inspection authorized by statute, or with any disciplinary
 3  proceeding.
 4         (s)  Failing to comply with the educational course
 5  requirements for domestic violence.
 6         (t)  In any advertisement for health care services, and
 7  no later than at the time of the initiation of the
 8  professional relationship with a patient, failing to provide
 9  the type of license under which the practitioner is operating.
10  This paragraph does not apply to a practitioner while the
11  practitioner is providing services in a facility licensed
12  under chapter 395 or chapter 400.
13         (u)(t)  Failing to comply with the requirements of ss.
14  381.026 and 381.0261 to provide patients with information
15  about their patient rights and how to file a patient
16  complaint.
17         (v)(u)  Engaging or attempting to engage in sexual
18  misconduct as defined and prohibited in s. 456.063(1).
19         (w)(v)  Failing to comply with the requirements for
20  profiling and credentialing, including, but not limited to,
21  failing to provide initial information, failing to timely
22  provide updated information, or making misleading, untrue,
23  deceptive, or fraudulent representations on a profile,
24  credentialing, or initial or renewal licensure application.
25         (x)(w)  Failing to report to the board, or the
26  department if there is no board, in writing within 30 days
27  after the licensee has been convicted or found guilty of, or
28  entered a plea of nolo contendere to, regardless of
29  adjudication, a crime in any jurisdiction. Convictions,
30  findings, adjudications, and pleas entered into prior to the
31  enactment of this paragraph must be reported in writing to the
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    Florida Senate - 2004                                   SB 560
    21-605-04                                           See HB 121
 1  board, or department if there is no board, on or before
 2  October 1, 1999.
 3         (y)(x)  Using information about people involved in
 4  motor vehicle accidents which has been derived from accident
 5  reports made by law enforcement officers or persons involved
 6  in accidents pursuant to s. 316.066, or using information
 7  published in a newspaper or other news publication or through
 8  a radio or television broadcast that has used information
 9  gained from such reports, for the purposes of commercial or
10  any other solicitation whatsoever of the people involved in
11  such accidents.
12         (z)(y)  Being unable to practice with reasonable skill
13  and safety to patients by reason of illness or use of alcohol,
14  drugs, narcotics, chemicals, or any other type of material or
15  as a result of any mental or physical condition. In enforcing
16  this paragraph, the department shall have, upon a finding of
17  the secretary or the secretary's designee that probable cause
18  exists to believe that the licensee is unable to practice
19  because of the reasons stated in this paragraph, the authority
20  to issue an order to compel a licensee to submit to a mental
21  or physical examination by physicians designated by the
22  department. If the licensee refuses to comply with such order,
23  the department's order directing such examination may be
24  enforced by filing a petition for enforcement in the circuit
25  court where the licensee resides or does business. The
26  department shall be entitled to the summary procedure provided
27  in s. 51.011. A licensee or certificateholder affected under
28  this paragraph shall at reasonable intervals be afforded an
29  opportunity to demonstrate that he or she can resume the
30  competent practice of his or her profession with reasonable
31  skill and safety to patients.
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    Florida Senate - 2004                                   SB 560
    21-605-04                                           See HB 121
 1         (aa)(z)  Testing positive for any drug, as defined in
 2  s. 112.0455, on any confirmed preemployment or
 3  employer-ordered drug screening when the practitioner does not
 4  have a lawful prescription and legitimate medical reason for
 5  using such drug.
 6         (bb)(aa)  Performing or attempting to perform health
 7  care services on the wrong patient, a wrong-site procedure, a
 8  wrong procedure, or an unauthorized procedure or a procedure
 9  that is medically unnecessary or otherwise unrelated to the
10  patient's diagnosis or medical condition. For the purposes of
11  this paragraph, performing or attempting to perform health
12  care services includes the preparation of the patient.
13         (cc)(bb)  Leaving a foreign body in a patient, such as
14  a sponge, clamp, forceps, surgical needle, or other
15  paraphernalia commonly used in surgical, examination, or other
16  diagnostic procedures. For the purposes of this paragraph, it
17  shall be legally presumed that retention of a foreign body is
18  not in the best interest of the patient and is not within the
19  standard of care of the profession, regardless of the intent
20  of the professional.
21         (dd)(cc)  Violating any provision of this chapter, the
22  applicable practice act, or any rules adopted pursuant
23  thereto.
24         (ee)(dd)  With respect to making a personal injury
25  protection claim as required by s. 627.736, intentionally
26  submitting a claim, statement, or bill that has been "upcoded"
27  as defined in s. 627.732.
28         (ff)(ee)  With respect to making a personal injury
29  protection claim as required by s. 627.736, intentionally
30  submitting a claim, statement, or bill for payment of services
31  that were not rendered.
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    Florida Senate - 2004                                   SB 560
    21-605-04                                           See HB 121
 1         (2)  When the board, or the department when there is no
 2  board, finds any person guilty of the grounds set forth in
 3  subsection (1) or of any grounds set forth in the applicable
 4  practice act, including conduct constituting a substantial
 5  violation of subsection (1) or a violation of the applicable
 6  practice act which occurred prior to obtaining a license, it
 7  may enter an order imposing one or more of the following
 8  penalties:
 9         (a)  Refusal to certify, or to certify with
10  restrictions, an application for a license.
11         (b)  Suspension or permanent revocation of a license.
12         (c)  Restriction of practice or license, including, but
13  not limited to, restricting the licensee from practicing in
14  certain settings, restricting the licensee to work only under
15  designated conditions or in certain settings, restricting the
16  licensee from performing or providing designated clinical and
17  administrative services, restricting the licensee from
18  practicing more than a designated number of hours, or any
19  other restriction found to be necessary for the protection of
20  the public health, safety, and welfare.
21         (d)  Imposition of an administrative fine not to exceed
22  $10,000 for each count or separate offense. If the violation
23  is for fraud or making a false or fraudulent representation,
24  the board, or the department if there is no board, must impose
25  a fine of $10,000 per count or offense.
26         (e)  Issuance of a reprimand or letter of concern.
27         (f)  Placement of the licensee on probation for a
28  period of time and subject to such conditions as the board, or
29  the department when there is no board, may specify. Those
30  conditions may include, but are not limited to, requiring the
31  licensee to undergo treatment, attend continuing education
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    Florida Senate - 2004                                   SB 560
    21-605-04                                           See HB 121
 1  courses, submit to be reexamined, work under the supervision
 2  of another licensee, or satisfy any terms which are reasonably
 3  tailored to the violations found.
 4         (g)  Corrective action.
 5         (h)  Imposition of an administrative fine in accordance
 6  with s. 381.0261 for violations regarding patient rights.
 7         (i)  Refund of fees billed and collected from the
 8  patient or a third party on behalf of the patient.
 9         (j)  Requirement that the practitioner undergo remedial
10  education.
11  
12  In determining what action is appropriate, the board, or
13  department when there is no board, must first consider what
14  sanctions are necessary to protect the public or to compensate
15  the patient. Only after those sanctions have been imposed may
16  the disciplining authority consider and include in the order
17  requirements designed to rehabilitate the practitioner. All
18  costs associated with compliance with orders issued under this
19  subsection are the obligation of the practitioner.
20         (3)(a)  Notwithstanding subsection (2), if the ground
21  for disciplinary action is the first-time failure of the
22  licensee to satisfy continuing education requirements
23  established by the board, or by the department if there is no
24  board, the board or department, as applicable, shall issue a
25  citation in accordance with s. 456.077 and assess a fine, as
26  determined by the board or department by rule. In addition,
27  for each hour of continuing education not completed or
28  completed late, the board or department, as applicable, may
29  require the licensee to take 1 additional hour of continuing
30  education for each hour not completed or completed late.
31  
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    Florida Senate - 2004                                   SB 560
    21-605-04                                           See HB 121
 1         (b)  Notwithstanding subsection (2), if the ground for
 2  disciplinary action is the first-time violation of a practice
 3  act for unprofessional conduct, as used in ss. 464.018(1)(h),
 4  467.203(1)(f), 468.365(1)(f), and 478.52(1)(f), and no actual
 5  harm to the patient occurred, the board or department, as
 6  applicable, shall issue a citation in accordance with s.
 7  456.077 and assess a penalty as determined by rule of the
 8  board or department.
 9         (4)  In addition to any other discipline imposed
10  through final order, or citation, entered on or after July 1,
11  2001, pursuant to this section or discipline imposed through
12  final order, or citation, entered on or after July 1, 2001,
13  for a violation of any practice act, the board, or the
14  department when there is no board, shall assess costs related
15  to the investigation and prosecution of the case. Such costs
16  related to the investigation and prosecution include, but are
17  not limited to, salaries and benefits of personnel, costs
18  related to the time spent by the attorney and other personnel
19  working on the case, and any other expenses incurred by the
20  department for the case. The board, or the department when
21  there in no board, shall determine the amount of costs to be
22  assessed after its consideration of an affidavit of itemized
23  costs and any written objections thereto. In any case where
24  the board or the department imposes a fine or assessment and
25  the fine or assessment is not paid within a reasonable time,
26  such reasonable time to be prescribed in the rules of the
27  board, or the department when there is no board, or in the
28  order assessing such fines or costs, the department or the
29  Department of Legal Affairs may contract for the collection
30  of, or bring a civil action to recover, the fine or
31  assessment.
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    Florida Senate - 2004                                   SB 560
    21-605-04                                           See HB 121
 1         (5)  In addition to, or in lieu of, any other remedy or
 2  criminal prosecution, the department may file a proceeding in
 3  the name of the state seeking issuance of an injunction or a
 4  writ of mandamus against any person who violates any of the
 5  provisions of this chapter, or any provision of law with
 6  respect to professions regulated by the department, or any
 7  board therein, or the rules adopted pursuant thereto.
 8         (6)  In the event the board, or the department when
 9  there is no board, determines that revocation of a license is
10  the appropriate penalty, the revocation shall be permanent.
11  However, the board may establish by rule requirements for
12  reapplication by applicants whose licenses have been
13  permanently revoked. Such requirements may include, but shall
14  not be limited to, satisfying current requirements for an
15  initial license.
16         (7)  The purpose of this section is to facilitate
17  uniform discipline for those actions made punishable under
18  this section and, to this end, a reference to this section
19  constitutes a general reference under the doctrine of
20  incorporation by reference.
21         Section 3.  This act shall take effect July 1, 2004.
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