HB 587

1	A bill to be entitled
2	An act relating to health care practitioners; providing
3	legislative findings and intent; amending s. 456.072,
4	F.S., relating to grounds for discipline, penalties, and
5	enforcement applicable to health care practitioners;
6	providing that a practitioner's failure to provide the
7	type of license under which he or she is operating in
8	health care advertisements and in professional
9	relationships with patients constitutes grounds for
10	disciplinary action; providing exceptions; providing
11	penalties; specifying that a reference to the section
12	constitutes a general reference under the doctrine of
13	incorporation by reference; providing an effective date.
14
15	Be It Enacted by the Legislature of the State of Florida:
16
17	Section 1.  The Legislature finds that there exists a
18	compelling state interest in patients being informed of the
19	credentials of the health care practitioners who treat them and
20	in the public being protected from misleading health care
21	advertising. The Legislature further finds that the areas of
22	licensure for the practice of health care can be extremely
23	confusing for patients and that health care practitioners can
24	easily mislead patients into believing that the practitioner is
25	better qualified than other health care practitioners simply by
26	creating a sham practice designation. Therefore, the Legislature
27	has determined that the most direct and effective manner in
28	which to protect patients from this identifiable harm is to
29	ensure that patients and the public be informed of the training
30	of health care practitioners and intends by this act to require
31	the provision of the information.
32	Section 2.  Section 456.072, Florida Statutes, is amended
33	to read:
34	456.072  Grounds for discipline; penalties; enforcement.--
35	(1)  The following acts shall constitute grounds for which
36	the disciplinary actions specified in subsection (2) may be
37	taken:
38	(a)  Making misleading, deceptive, or fraudulent
39	representations in or related to the practice of the licensee's
40	profession.
41	(b)  Intentionally violating any rule adopted by the board
42	or the department, as appropriate.
43	(c)  Being convicted or found guilty of, or entering a plea
44	of guilty or nolo contendere to, regardless of adjudication, a
45	crime in any jurisdiction which relates to the practice of, or
46	the ability to practice, a licensee's profession.
47	(d)  Using a Class III or a Class IV laser device or
48	product, as defined by federal regulations, without having
49	complied with the rules adopted under pursuant to s. 501.122(2)
50	governing the registration of the such devices.
51	(e)  Failing to comply with the educational course
52	requirements for human immunodeficiency virus and acquired
53	immune deficiency syndrome.
54	(f)  Having a license or the authority to practice any
55	regulated profession revoked, suspended, or otherwise acted
56	against, including the denial of licensure, by the licensing
57	authority of any jurisdiction, including its agencies or
58	subdivisions, for a violation that would constitute a violation
59	under Florida law. The licensing authority's acceptance of a
60	relinquishment of licensure, stipulation, consent order, or
61	other settlement, offered in response to or in anticipation of
62	the filing of charges against the license, shall be construed as
63	action against the license.
64	(g)  Having been found liable in a civil proceeding for
65	knowingly filing a false report or complaint with the department
66	against another licensee.
67	(h)  Attempting to obtain, obtaining, or renewing a license
68	to practice a profession by bribery, by fraudulent
69	misrepresentation, or through an error of the department or the
70	board.
71	(i)  Except as provided in s. 465.016, failing to report to
72	the department any person who the licensee knows is in violation
73	of this chapter, the chapter regulating the alleged violator, or
74	the rules of the department or the board.
75	(j)  Aiding, assisting, procuring, employing, or advising
76	any unlicensed person or entity to practice a profession
77	contrary to this chapter, the chapter regulating the profession,
78	or the rules of the department or the board.
79	(k)  Failing to perform any statutory or legal obligation
80	placed upon a licensee.  For purposes of this section, failing
81	to repay a student loan issued or guaranteed by the state or the
82	Federal Government in accordance with the terms of the loan or
83	failing to comply with service scholarship obligations shall be
84	considered a failure to perform a statutory or legal obligation,
85	and the minimum disciplinary action imposed shall be a
86	suspension of the license until new payment terms are agreed
87	upon or the scholarship obligation is resumed, followed by
88	probation for the duration of the student loan or remaining
89	scholarship obligation period, and a fine equal to 10 percent of
90	the defaulted loan amount.  Fines collected shall be deposited
91	into the Medical Quality Assurance Trust Fund.
92	(l)  Making or filing a report which the licensee knows to
93	be false, intentionally or negligently failing to file a report
94	or record required by state or federal law, or willfully
95	impeding or obstructing another person to do so. Such reports or
96	records shall include only those that are signed in the capacity
97	of a licensee.
98	(m)  Making deceptive, untrue, or fraudulent
99	representations in or related to the practice of a profession or
100	employing a trick or scheme in or related to the practice of a
101	profession.
102	(n)  Exercising influence on the patient or client for the
103	purpose of financial gain of the licensee or a third party.
104	(o)  Practicing or offering to practice beyond the scope
105	permitted by law or accepting and performing professional
106	responsibilities the licensee knows, or has reason to know, the
107	licensee is not competent to perform.
108	(p)  Delegating or contracting for the performance of
109	professional responsibilities by a person when the licensee
110	delegating or contracting for performance of the such
111	responsibilities knows, or has reason to know, the such person
112	is not qualified by training, experience, and authorization when
113	required to perform them.
114	(q)  Violating a lawful order of the department or the
115	board, or failing to comply with a lawfully issued subpoena of
116	the department.
117	(r)  Improperly interfering with an investigation or
118	inspection authorized by statute, or with any disciplinary
119	proceeding.
120	(s)  Failing to comply with the educational course
121	requirements for domestic violence.
122	(t)  In any advertisement for health care services, and no
123	later than at the time of the initiation of the professional
124	relationship with a patient, failing to provide the type of
125	license under which the practitioner is operating. This
126	paragraph does not apply to a practitioner while the
127	practitioner is providing services in a facility licensed under
128	chapter 395 or chapter 400.
129	(u)(t)  Failing to comply with the requirements of ss.
130	381.026 and 381.0261 to provide patients with information about
131	their patient rights and how to file a patient complaint.
132	(v)(u)  Engaging or attempting to engage in sexual
133	misconduct as defined and prohibited in s. 456.063(1).
134	(w)(v)  Failing to comply with the requirements for
135	profiling and credentialing, including, but not limited to,
136	failing to provide initial information, failing to timely
137	provide updated information, or making misleading, untrue,
138	deceptive, or fraudulent representations on a profile,
139	credentialing, or initial or renewal licensure application.
140	(x)(w)  Failing to report to the board, or the department
141	if there is no board, in writing within 30 days after the
142	licensee has been convicted or found guilty of, or entered a
143	plea of nolo contendere to, regardless of adjudication, a crime
144	in any jurisdiction. Convictions, findings, adjudications, and
145	pleas entered into prior to the enactment of this paragraph must
146	be reported in writing to the board, or department if there is
147	no board, on or before October 1, 1999.
148	(y)(x)  Using information about people involved in motor
149	vehicle accidents which has been derived from accident reports
150	made by law enforcement officers or persons involved in
151	accidents under pursuant to s. 316.066, or using information
152	published in a newspaper or other news publication or through a
153	radio or television broadcast that has used information gained
154	from such reports, for the purposes of commercial or any other
155	solicitation whatsoever of the people involved in the such
156	accidents.
157	(z)(y)  Being unable to practice with reasonable skill and
158	safety to patients by reason of illness or use of alcohol,
159	drugs, narcotics, chemicals, or any other type of material or as
160	a result of any mental or physical condition. In enforcing this
161	paragraph, the department shall have, upon a finding of the
162	secretary or the secretary's designee that probable cause exists
163	to believe that the licensee is unable to practice because of
164	the reasons stated in this paragraph, the authority to issue an
165	order to compel a licensee to submit to a mental or physical
166	examination by physicians designated by the department. If the
167	licensee refuses to comply with the such order, the department's
168	order directing the such examination may be enforced by filing a
169	petition for enforcement in the circuit court where the licensee
170	resides or does business. The department shall be entitled to
171	the summary procedure provided in s. 51.011. A licensee or
172	certificateholder affected under this paragraph shall at
173	reasonable intervals be afforded an opportunity to demonstrate
174	that he or she can resume the competent practice of his or her
175	profession with reasonable skill and safety to patients.
176	(aa)(z)  Testing positive for any drug, as defined in s.
177	112.0455, on any confirmed preemployment or employer-ordered
178	drug screening when the practitioner does not have a lawful
179	prescription and legitimate medical reason for using the such
180	drug.
181	(bb)(aa)  Performing or attempting to perform health care
182	services on the wrong patient, a wrong-site procedure, a wrong
183	procedure, or an unauthorized procedure or a procedure that is
184	medically unnecessary or otherwise unrelated to the patient's
185	diagnosis or medical condition. For the purposes of this
186	paragraph, performing or attempting to perform health care
187	services includes the preparation of the patient.
188	(cc)(bb)  Leaving a foreign body in a patient, such as a
189	sponge, clamp, forceps, surgical needle, or other paraphernalia
190	commonly used in surgical, examination, or other diagnostic
191	procedures. For the purposes of this paragraph, it shall be
192	legally presumed that retention of a foreign body is not in the
193	best interest of the patient and is not within the standard of
194	care of the profession, regardless of the intent of the
195	professional.
196	(dd)(cc)  Violating any provision of this chapter, the
197	applicable practice act, or any rules adopted pursuant thereto.
198	(ee)(dd)  With respect to making a personal injury
199	protection claim as required by s. 627.736, intentionally
200	submitting a claim, statement, or bill that has been "upcoded"
201	as defined in s. 627.732.
202	(ff)(ee)  With respect to making a personal injury
203	protection claim as required by s. 627.736, intentionally
204	submitting a claim, statement, or bill for payment of services
205	that were not rendered.
206	(gg)(ff)  Engaging in a pattern of practice when
207	prescribing medicinal drugs or controlled substances which
208	demonstrates a lack of reasonable skill or safety to patients, a
209	violation of any provision of this chapter, a violation of the
210	applicable practice act, or a violation of any rules adopted
211	under pursuant to this chapter or the applicable practice act of
212	the prescribing practitioner. Notwithstanding s. 456.073(13),
213	the department may initiate an investigation and establish such
214	a pattern from billing records, data, or any other information
215	obtained by the department.
216	(hh)(gg)  Being terminated from a treatment program for
217	impaired practitioners, which is overseen by an impaired
218	practitioner consultant as described in s. 456.076, for failure
219	to comply, without good cause, with the terms of the monitoring
220	or treatment contract entered into by the licensee, or for not
221	successfully completing any drug treatment or alcohol treatment
222	program.
223	(2)  When the board, or the department when there is no
224	board, finds any person guilty of the grounds set forth in
225	subsection (1) or of any grounds set forth in the applicable
226	practice act, including conduct constituting a substantial
227	violation of subsection (1) or a violation of the applicable
228	practice act which occurred prior to obtaining a license, it may
229	enter an order imposing one or more of the following penalties:
230	(a)  Refusal to certify, or to certify with restrictions,
231	an application for a license.
232	(b)  Suspension or permanent revocation of a license.
233	(c)  Restriction of practice or license, including, but not
234	limited to, restricting the licensee from practicing in certain
235	settings, restricting the licensee to work only under designated
236	conditions or in certain settings, restricting the licensee from
237	performing or providing designated clinical and administrative
238	services, restricting the licensee from practicing more than a
239	designated number of hours, or any other restriction found to be
240	necessary for the protection of the public health, safety, and
241	welfare.
242	(d)  Imposition of an administrative fine not to exceed
243	$10,000 for each count or separate offense. If the violation is
244	for fraud or making a false or fraudulent representation, the
245	board, or the department if there is no board, must impose a
246	fine of $10,000 per count or offense.
247	(e)  Issuance of a reprimand or letter of concern.
248	(f)  Placement of the licensee on probation for a period of
249	time and subject to such conditions as the board, or the
250	department when there is no board, may specify. Those conditions
251	may include, but are not limited to, requiring the licensee to
252	undergo treatment, attend continuing education courses, submit
253	to be reexamined, work under the supervision of another
254	licensee, or satisfy any terms which are reasonably tailored to
255	the violations found.
256	(g)  Corrective action.
257	(h)  Imposition of an administrative fine in accordance
258	with s. 381.0261 for violations regarding patient rights.
259	(i)  Refund of fees billed and collected from the patient
260	or a third party on behalf of the patient.
261	(j)  Requirement that the practitioner undergo remedial
262	education.
263
264	In determining what action is appropriate, the board, or
265	department when there is no board, must first consider what
266	sanctions are necessary to protect the public or to compensate
267	the patient. Only after those sanctions have been imposed may
268	the disciplining authority consider and include in the order
269	requirements designed to rehabilitate the practitioner. All
270	costs associated with compliance with orders issued under this
271	subsection are the obligation of the practitioner.
272	(3)(a)  Notwithstanding subsection (2), if the ground for
273	disciplinary action is the first-time failure of the licensee to
274	satisfy continuing education requirements established by the
275	board, or by the department if there is no board, the board or
276	department, as applicable, shall issue a citation in accordance
277	with s. 456.077 and assess a fine, as determined by the board or
278	department by rule. In addition, for each hour of continuing
279	education not completed or completed late, the board or
280	department, as applicable, may require the licensee to take 1
281	additional hour of continuing education for each hour not
282	completed or completed late.
283	(b)  Notwithstanding subsection (2), if the ground for
284	disciplinary action is the first-time violation of a practice
285	act for unprofessional conduct, as used in ss. 464.018(1)(h),
286	467.203(1)(f), 468.365(1)(f), and 478.52(1)(f), and no actual
287	harm to the patient occurred, the board or department, as
288	applicable, shall issue a citation in accordance with s. 456.077
289	and assess a penalty as determined by rule of the board or
290	department.
291	(4)  In addition to any other discipline imposed through
292	final order, or citation, entered on or after July 1, 2001,
293	under pursuant to this section or discipline imposed through
294	final order, or citation, entered on or after July 1, 2001, for
295	a violation of any practice act, the board, or the department
296	when there is no board, shall assess costs related to the
297	investigation and prosecution of the case. The Such costs
298	related to the investigation and prosecution include, but are
299	not limited to, salaries and benefits of personnel, costs
300	related to the time spent by the attorney and other personnel
301	working on the case, and any other expenses incurred by the
302	department for the case. The board, or the department when there
303	in no board, shall determine the amount of costs to be assessed
304	after its consideration of an affidavit of itemized costs and
305	any written objections thereto. In any case where the board or
306	the department imposes a fine or assessment and the fine or
307	assessment is not paid within a reasonable time, the such
308	reasonable time to be prescribed in the rules of the board, or
309	the department when there is no board, or in the order assessing
310	the such fines or costs, the department or the Department of
311	Legal Affairs may contract for the collection of, or bring a
312	civil action to recover, the fine or assessment.
313	(5)  In addition to, or in lieu of, any other remedy or
314	criminal prosecution, the department may file a proceeding in
315	the name of the state seeking issuance of an injunction or a
316	writ of mandamus against any person who violates any of the
317	provisions of this chapter, or any provision of law with respect
318	to professions regulated by the department, or any board
319	therein, or the rules adopted pursuant thereto.
320	(6)  If In the event the board, or the department when
321	there is no board, determines that revocation of a license is
322	the appropriate penalty, the revocation shall be permanent.
323	However, the board may establish by rule requirements for
324	reapplication by applicants whose licenses have been permanently
325	revoked. The Such requirements may include, but are shall not be
326	limited to, satisfying current requirements for an initial
327	license.
328	(7)  The purpose of this section is to facilitate uniform
329	discipline for those actions made punishable under this section
330	and, to this end, a reference to this section constitutes a
331	general reference under the doctrine of incorporation by
332	reference.
333	Section 3.  This act shall take effect July 1, 2006.

CODING: Words stricken are deletions; words underlined are additions.