Senate Bill sb0416c1

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    Florida Senate - 2006                            CS for SB 416

    By the Committee on Health Care; and Senator Bennett





    587-2466-06

  1                      A bill to be entitled

  2         An act relating to health care practitioners;

  3         providing legislative findings and intent;

  4         amending s. 456.072, F.S., relating to grounds

  5         for discipline, penalties, and enforcement

  6         applicable to health care practitioners;

  7         providing that a practitioner's failure to

  8         identify the type of license under which he or

  9         she is practicing constitutes grounds for

10         disciplinary action; providing exceptions;

11         authorizing certain entities to determine

12         compliance with a disclosure requirement;

13         providing penalties; specifying that a

14         reference to the section constitutes a general

15         reference under the doctrine of incorporation

16         by reference; providing an effective date.

17  

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

19  

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

23  and in the public being protected from misleading health care

24  advertising. The Legislature further finds that the areas of

25  licensure for the practice of health care can be extremely

26  confusing for patients and that health care practitioners can

27  easily mislead patients into believing that the practitioner

28  is better qualified than other health care practitioners

29  simply by creating a sham practice designation. Therefore, the

30  Legislature has determined that the most direct and effective

31  manner in which to protect patients from this identifiable

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    Florida Senate - 2006                            CS for SB 416
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 1  harm is to ensure that patients and the public be informed of

 2  the training of health care practitioners and intends by this

 3  act to require the provision of the information.

 4         Section 2.  Section 456.072, Florida Statutes, is

 5  amended to read:

 6         456.072  Grounds for discipline; penalties;

 7  enforcement.--

 8         (1)  The following acts shall constitute grounds for

 9  which the disciplinary actions specified in subsection (2) may

10  be taken:

11         (a)  Making misleading, deceptive, or fraudulent

12  representations in or related to the practice of the

13  licensee's profession.

14         (b)  Intentionally violating any rule adopted by the

15  board or the department, as appropriate.

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

17  plea of guilty or nolo contendere to, regardless of

18  adjudication, a crime in any jurisdiction which relates to the

19  practice of, or the ability to practice, a licensee's

20  profession.

21         (d)  Using a Class III or a Class IV laser device or

22  product, as defined by federal regulations, without having

23  complied with the rules adopted under pursuant to s.

24  501.122(2) governing the registration of the such devices.

25         (e)  Failing to comply with the educational course

26  requirements for human immunodeficiency virus and acquired

27  immune deficiency syndrome.

28         (f)  Having a license or the authority to practice any

29  regulated profession revoked, suspended, or otherwise acted

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

31  authority of any jurisdiction, including its agencies or

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    Florida Senate - 2006                            CS for SB 416
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 1  subdivisions, for a violation that would constitute a

 2  violation under Florida law. The licensing authority's

 3  acceptance of a relinquishment of licensure, stipulation,

 4  consent order, or other settlement, offered in response to or

 5  in anticipation of the filing of charges against the license,

 6  shall be construed as action against the license.

 7         (g)  Having been found liable in a civil proceeding for

 8  knowingly filing a false report or complaint with the

 9  department against another licensee.

10         (h)  Attempting to obtain, obtaining, or renewing a

11  license to practice a profession by bribery, by fraudulent

12  misrepresentation, or through an error of the department or

13  the board.

14         (i)  Except as provided in s. 465.016, failing to

15  report to the department any person who the licensee knows is

16  in violation of this chapter, the chapter regulating the

17  alleged violator, or the rules of the department or the board.

18         (j)  Aiding, assisting, procuring, employing, or

19  advising any unlicensed person or entity to practice a

20  profession contrary to this chapter, the chapter regulating

21  the profession, or the rules of the department or the board.

22         (k)  Failing to perform any statutory or legal

23  obligation placed upon a licensee. For purposes of this

24  section, failing to repay a student loan issued or guaranteed

25  by the state or the Federal Government in accordance with the

26  terms of the loan or failing to comply with service

27  scholarship obligations shall be considered a failure to

28  perform a statutory or legal obligation, and the minimum

29  disciplinary action imposed shall be a suspension of the

30  license until new payment terms are agreed upon or the

31  scholarship obligation is resumed, followed by probation for

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    Florida Senate - 2006                            CS for SB 416
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 1  the duration of the student loan or remaining scholarship

 2  obligation period, and a fine equal to 10 percent of the

 3  defaulted loan amount. Fines collected shall be deposited into

 4  the Medical Quality Assurance Trust Fund.

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

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

 7  report or record required by state or federal law, or

 8  willfully impeding or obstructing another person to do so.

 9  Such reports or records shall include only those that are

10  signed in the capacity of a licensee.

11         (m)  Making deceptive, untrue, or fraudulent

12  representations in or related to the practice of a profession

13  or employing a trick or scheme in or related to the practice

14  of a profession.

15         (n)  Exercising influence on the patient or client for

16  the purpose of financial gain of the licensee or a third

17  party.

18         (o)  Practicing or offering to practice beyond the

19  scope permitted by law or accepting and performing

20  professional responsibilities the licensee knows, or has

21  reason to know, the licensee is not competent to perform.

22         (p)  Delegating or contracting for the performance of

23  professional responsibilities by a person when the licensee

24  delegating or contracting for performance of the such

25  responsibilities knows, or has reason to know, the such person

26  is not qualified by training, experience, and authorization

27  when required to perform them.

28         (q)  Violating a lawful order of the department or the

29  board, or failing to comply with a lawfully issued subpoena of

30  the department.

31  

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    Florida Senate - 2006                            CS for SB 416
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 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)  Failing to identify through written notice, which

 7  may include the wearing of a name tag, or orally to a patient

 8  the type of license under which the practitioner is

 9  practicing. Any advertisement for health care services naming

10  the practitioner must identify the type of license the

11  practitioner holds. This paragraph does not apply to a

12  practitioner while the practitioner is providing services in a

13  facility licensed under chapter 394, chapter 395, or chapter

14  400. Each board, or the department where there is no board, is

15  authorized by rule to determine how its practitioners may

16  comply with this disclosure requirement.

17         (u)(t)  Failing to comply with the requirements of ss.

18  381.026 and 381.0261 to provide patients with information

19  about their patient rights and how to file a patient

20  complaint.

21         (v)(u)  Engaging or attempting to engage in sexual

22  misconduct as defined and prohibited in s. 456.063(1).

23         (w)(v)  Failing to comply with the requirements for

24  profiling and credentialing, including, but not limited to,

25  failing to provide initial information, failing to timely

26  provide updated information, or making misleading, untrue,

27  deceptive, or fraudulent representations on a profile,

28  credentialing, or initial or renewal licensure application.

29         (x)(w)  Failing to report to the board, or the

30  department if there is no board, in writing within 30 days

31  after the licensee has been convicted or found guilty of, or

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    Florida Senate - 2006                            CS for SB 416
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 1  entered a plea of nolo contendere to, regardless of

 2  adjudication, a crime in any jurisdiction. Convictions,

 3  findings, adjudications, and pleas entered into prior to the

 4  enactment of this paragraph must be reported in writing to the

 5  board, or department if there is no board, on or before

 6  October 1, 1999.

 7         (y)(x)  Using information about people involved in

 8  motor vehicle accidents which has been derived from accident

 9  reports made by law enforcement officers or persons involved

10  in accidents under pursuant to s. 316.066, or using

11  information published in a newspaper or other news publication

12  or through a radio or television broadcast that has used

13  information gained from such reports, for the purposes of

14  commercial or any other solicitation whatsoever of the people

15  involved in the such accidents.

16         (z)(y)  Being unable to practice with reasonable skill

17  and 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. In enforcing

20  this paragraph, the department shall have, upon a finding of

21  the secretary or the secretary's designee that probable cause

22  exists to believe that the licensee is unable to practice

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

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

25  or physical examination by physicians designated by the

26  department. If the licensee refuses to comply with the such

27  order, the department's order directing the such examination

28  may be enforced by filing a petition for enforcement in the

29  circuit court where the licensee resides or does business. The

30  department shall be entitled to the summary procedure provided

31  in s. 51.011. A licensee or certificateholder affected under

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    Florida Senate - 2006                            CS for SB 416
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 1  this paragraph shall at reasonable intervals be afforded an

 2  opportunity to demonstrate that he or she can resume the

 3  competent practice of his or her profession with reasonable

 4  skill and safety to patients.

 5         (aa)(z)  Testing positive for any drug, as defined in

 6  s. 112.0455, on any confirmed preemployment or

 7  employer-ordered drug screening when the practitioner does not

 8  have a lawful prescription and legitimate medical reason for

 9  using the such drug.

10         (bb)(aa)  Performing or attempting to perform health

11  care services on the wrong patient, a wrong-site procedure, a

12  wrong procedure, or an unauthorized procedure or a procedure

13  that is medically unnecessary or otherwise unrelated to the

14  patient's diagnosis or medical condition. For the purposes of

15  this paragraph, performing or attempting to perform health

16  care services includes the preparation of the patient.

17         (cc)(bb)  Leaving a foreign body in a patient, such as

18  a sponge, clamp, forceps, surgical needle, or other

19  paraphernalia commonly used in surgical, examination, or other

20  diagnostic procedures. For the purposes of this paragraph, it

21  shall be legally presumed that retention of a foreign body is

22  not in the best interest of the patient and is not within the

23  standard of care of the profession, regardless of the intent

24  of the professional.

25         (dd)(cc)  Violating any provision of this chapter, the

26  applicable practice act, or any rules adopted pursuant

27  thereto.

28         (ee)(dd)  With respect to making a personal injury

29  protection claim as required by s. 627.736, intentionally

30  submitting a claim, statement, or bill that has been "upcoded"

31  as defined in s. 627.732.

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 1         (ff)(ee)  With respect to making a personal injury

 2  protection claim as required by s. 627.736, intentionally

 3  submitting a claim, statement, or bill for payment of services

 4  that were not rendered.

 5         (gg)(ff)  Engaging in a pattern of practice when

 6  prescribing medicinal drugs or controlled substances which

 7  demonstrates a lack of reasonable skill or safety to patients,

 8  a violation of any provision of this chapter, a violation of

 9  the applicable practice act, or a violation of any rules

10  adopted under pursuant to this chapter or the applicable

11  practice act of the prescribing practitioner. Notwithstanding

12  s. 456.073(13), the department may initiate an investigation

13  and establish such a pattern from billing records, data, or

14  any other information obtained by the department.

15         (hh)(gg)  Being terminated from a treatment program for

16  impaired practitioners, which is overseen by an impaired

17  practitioner consultant as described in s. 456.076, for

18  failure to comply, without good cause, with the terms of the

19  monitoring or treatment contract entered into by the licensee,

20  or for not successfully completing any drug treatment or

21  alcohol treatment program.

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

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

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

25  practice act, including conduct constituting a substantial

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

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

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

29  penalties:

30         (a)  Refusal to certify, or to certify with

31  restrictions, an application for a license.

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 1         (b)  Suspension or permanent revocation of a license.

 2         (c)  Restriction of practice or license, including, but

 3  not limited to, restricting the licensee from practicing in

 4  certain settings, restricting the licensee to work only under

 5  designated conditions or in certain settings, restricting the

 6  licensee from performing or providing designated clinical and

 7  administrative services, restricting the licensee from

 8  practicing more than a designated number of hours, or any

 9  other restriction found to be necessary for the protection of

10  the public health, safety, and welfare.

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

12  $10,000 for each count or separate offense. If the violation

13  is for fraud or making a false or fraudulent representation,

14  the board, or the department if there is no board, must impose

15  a fine of $10,000 per count or offense.

16         (e)  Issuance of a reprimand or letter of concern.

17         (f)  Placement of the licensee on probation for a

18  period of time and subject to such conditions as the board, or

19  the department when there is no board, may specify. Those

20  conditions may include, but are not limited to, requiring the

21  licensee to undergo treatment, attend continuing education

22  courses, submit to be reexamined, work under the supervision

23  of another licensee, or satisfy any terms which are reasonably

24  tailored to the violations found.

25         (g)  Corrective action.

26         (h)  Imposition of an administrative fine in accordance

27  with s. 381.0261 for violations regarding patient rights.

28         (i)  Refund of fees billed and collected from the

29  patient or a third party on behalf of the patient.

30         (j)  Requirement that the practitioner undergo remedial

31  education.

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 1  

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

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

 4  sanctions are necessary to protect the public or to compensate

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

 6  the disciplining authority consider and include in the order

 7  requirements designed to rehabilitate the practitioner. All

 8  costs associated with compliance with orders issued under this

 9  subsection are the obligation of the practitioner.

10         (3)(a)  Notwithstanding subsection (2), if the ground

11  for disciplinary action is the first-time failure of the

12  licensee to satisfy continuing education requirements

13  established by the board, or by the department if there is no

14  board, the board or department, as applicable, shall issue a

15  citation in accordance with s. 456.077 and assess a fine, as

16  determined by the board or department by rule. In addition,

17  for each hour of continuing education not completed or

18  completed late, the board or department, as applicable, may

19  require the licensee to take 1 additional hour of continuing

20  education for each hour not completed or completed late.

21         (b)  Notwithstanding subsection (2), if the ground for

22  disciplinary action is the first-time violation of a practice

23  act for unprofessional conduct, as used in ss. 464.018(1)(h),

24  467.203(1)(f), 468.365(1)(f), and 478.52(1)(f), and no actual

25  harm to the patient occurred, the board or department, as

26  applicable, shall issue a citation in accordance with s.

27  456.077 and assess a penalty as determined by rule of the

28  board or department.

29         (4)  In addition to any other discipline imposed

30  through final order, or citation, entered on or after July 1,

31  2001, under pursuant to this section or discipline imposed

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 1  through final order, or citation, entered on or after July 1,

 2  2001, for a violation of any practice act, the board, or the

 3  department when there is no board, shall assess costs related

 4  to the investigation and prosecution of the case. The Such

 5  costs related to the investigation and prosecution include,

 6  but are not limited to, salaries and benefits of personnel,

 7  costs related to the time spent by the attorney and other

 8  personnel working on the case, and any other expenses incurred

 9  by the department for the case. The board, or the department

10  when there in no board, shall determine the amount of costs to

11  be assessed after its consideration of an affidavit of

12  itemized costs and any written objections thereto. In any case

13  where the board or the department imposes a fine or assessment

14  and the fine or assessment is not paid within a reasonable

15  time, the such reasonable time to be prescribed in the rules

16  of the board, or the department when there is no board, or in

17  the order assessing the such fines or costs, the department or

18  the Department of Legal Affairs may contract for the

19  collection of, or bring a civil action to recover, the fine or

20  assessment.

21         (5)  In addition to, or in lieu of, any other remedy or

22  criminal prosecution, the department may file a proceeding in

23  the name of the state seeking issuance of an injunction or a

24  writ of mandamus against any person who violates any of the

25  provisions of this chapter, or any provision of law with

26  respect to professions regulated by the department, or any

27  board therein, or the rules adopted pursuant thereto.

28         (6)  If In the event the board, or the department when

29  there is no board, determines that revocation of a license is

30  the appropriate penalty, the revocation shall be permanent.

31  However, the board may establish by rule requirements for

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 1  reapplication by applicants whose licenses have been

 2  permanently revoked. The Such requirements may include, but

 3  are shall not be limited to, satisfying current requirements

 4  for an initial license.

 5         (7)  The purpose of this section is to facilitate

 6  uniform discipline for those actions made punishable under

 7  this section and, to this end, a reference to this section

 8  constitutes a general reference under the doctrine of

 9  incorporation by reference.

10         Section 3.  This act shall take effect July 1, 2006.

11  

12          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
13                         Senate Bill 416

14                                 

15  The committee substitute revises the requirements for health
    care practitioners to provide their patients with the type of
16  license under which the practitioner is practicing. The
    committee substitute expands the exception to this requirement
17  to include practitioners providing services in a mental health
    facility licensed under chapter 394, F.S. Each board, or the
18  Department of Health where there is no board, may by rule
    determine how its practitioners may comply with the disclosure
19  requirements under the bill.

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