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 identify the
7	type of license under which he or she is practicing
8	constitutes grounds for disciplinary action; providing
9	exceptions; authorizing certain entities to determine
10	compliance with a disclosure requirement; 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 to
81	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)  Failing to identify through written notice, which may
123	include the wearing of a name tag, or orally to a patient the
124	type of license under which the practitioner is practicing. Any
125	advertisement for health care services naming the practitioner
126	must identify the type of license the practitioner holds. This
127	paragraph does not apply to a practitioner while the
128	practitioner is providing services in a facility licensed under
129	chapter 394, chapter 395, or chapter 400. Each board, or the
130	department where there is no board, is authorized by rule to
131	determine how its practitioners may comply with this disclosure
132	requirement.
133	(u)(t)  Failing to comply with the requirements of ss.
134	381.026 and 381.0261 to provide patients with information about
135	their patient rights and how to file a patient complaint.
136	(v)(u)  Engaging or attempting to engage in sexual
137	misconduct as defined and prohibited in s. 456.063(1).
138	(w)(v)  Failing to comply with the requirements for
139	profiling and credentialing, including, but not limited to,
140	failing to provide initial information, failing to timely
141	provide updated information, or making misleading, untrue,
142	deceptive, or fraudulent representations on a profile,
143	credentialing, or initial or renewal licensure application.
144	(x)(w)  Failing to report to the board, or the department
145	if there is no board, in writing within 30 days after the
146	licensee has been convicted or found guilty of, or entered a
147	plea of nolo contendere to, regardless of adjudication, a crime
148	in any jurisdiction. Convictions, findings, adjudications, and
149	pleas entered into prior to the enactment of this paragraph must
150	be reported in writing to the board, or department if there is
151	no board, on or before October 1, 1999.
152	(y)(x)  Using information about people involved in motor
153	vehicle accidents which has been derived from accident reports
154	made by law enforcement officers or persons involved in
155	accidents under pursuant to s. 316.066, or using information
156	published in a newspaper or other news publication or through a
157	radio or television broadcast that has used information gained
158	from such reports, for the purposes of commercial or any other
159	solicitation whatsoever of the people involved in the such
160	accidents.
161	(z)(y)  Being unable to practice with reasonable skill and
162	safety to patients by reason of illness or use of alcohol,
163	drugs, narcotics, chemicals, or any other type of material or as
164	a result of any mental or physical condition. In enforcing this
165	paragraph, the department shall have, upon a finding of the
166	secretary or the secretary's designee that probable cause exists
167	to believe that the licensee is unable to practice because of
168	the reasons stated in this paragraph, the authority to issue an
169	order to compel a licensee to submit to a mental or physical
170	examination by physicians designated by the department. If the
171	licensee refuses to comply with the such order, the department's
172	order directing the such examination may be enforced by filing a
173	petition for enforcement in the circuit court where the licensee
174	resides or does business. The department shall be entitled to
175	the summary procedure provided in s. 51.011. A licensee or
176	certificateholder affected under this paragraph shall at
177	reasonable intervals be afforded an opportunity to demonstrate
178	that he or she can resume the competent practice of his or her
179	profession with reasonable skill and safety to patients.
180	(aa)(z)  Testing positive for any drug, as defined in s.
181	112.0455, on any confirmed preemployment or employer-ordered
182	drug screening when the practitioner does not have a lawful
183	prescription and legitimate medical reason for using the such
184	drug.
185	(bb)(aa)  Performing or attempting to perform health care
186	services on the wrong patient, a wrong-site procedure, a wrong
187	procedure, or an unauthorized procedure or a procedure that is
188	medically unnecessary or otherwise unrelated to the patient's
189	diagnosis or medical condition. For the purposes of this
190	paragraph, performing or attempting to perform health care
191	services includes the preparation of the patient.
192	(cc)(bb)  Leaving a foreign body in a patient, such as a
193	sponge, clamp, forceps, surgical needle, or other paraphernalia
194	commonly used in surgical, examination, or other diagnostic
195	procedures. For the purposes of this paragraph, it shall be
196	legally presumed that retention of a foreign body is not in the
197	best interest of the patient and is not within the standard of
198	care of the profession, regardless of the intent of the
199	professional.
200	(dd)(cc)  Violating any provision of this chapter, the
201	applicable practice act, or any rules adopted pursuant thereto.
202	(ee)(dd)  With respect to making a personal injury
203	protection claim as required by s. 627.736, intentionally
204	submitting a claim, statement, or bill that has been "upcoded"
205	as defined in s. 627.732.
206	(ff)(ee)  With respect to making a personal injury
207	protection claim as required by s. 627.736, intentionally
208	submitting a claim, statement, or bill for payment of services
209	that were not rendered.
210	(gg)(ff)  Engaging in a pattern of practice when
211	prescribing medicinal drugs or controlled substances which
212	demonstrates a lack of reasonable skill or safety to patients, a
213	violation of any provision of this chapter, a violation of the
214	applicable practice act, or a violation of any rules adopted
215	under pursuant to this chapter or the applicable practice act of
216	the prescribing practitioner. Notwithstanding s. 456.073(13),
217	the department may initiate an investigation and establish such
218	a pattern from billing records, data, or any other information
219	obtained by the department.
220	(hh)(gg)  Being terminated from a treatment program for
221	impaired practitioners, which is overseen by an impaired
222	practitioner consultant as described in s. 456.076, for failure
223	to comply, without good cause, with the terms of the monitoring
224	or treatment contract entered into by the licensee, or for not
225	successfully completing any drug treatment or alcohol treatment
226	program.
227	(2)  When the board, or the department when there is no
228	board, finds any person guilty of the grounds set forth in
229	subsection (1) or of any grounds set forth in the applicable
230	practice act, including conduct constituting a substantial
231	violation of subsection (1) or a violation of the applicable
232	practice act which occurred prior to obtaining a license, it may
233	enter an order imposing one or more of the following penalties:
234	(a)  Refusal to certify, or to certify with restrictions,
235	an application for a license.
236	(b)  Suspension or permanent revocation of a license.
237	(c)  Restriction of practice or license, including, but not
238	limited to, restricting the licensee from practicing in certain
239	settings, restricting the licensee to work only under designated
240	conditions or in certain settings, restricting the licensee from
241	performing or providing designated clinical and administrative
242	services, restricting the licensee from practicing more than a
243	designated number of hours, or any other restriction found to be
244	necessary for the protection of the public health, safety, and
245	welfare.
246	(d)  Imposition of an administrative fine not to exceed
247	$10,000 for each count or separate offense. If the violation is
248	for fraud or making a false or fraudulent representation, the
249	board, or the department if there is no board, must impose a
250	fine of $10,000 per count or offense.
251	(e)  Issuance of a reprimand or letter of concern.
252	(f)  Placement of the licensee on probation for a period of
253	time and subject to such conditions as the board, or the
254	department when there is no board, may specify. Those conditions
255	may include, but are not limited to, requiring the licensee to
256	undergo treatment, attend continuing education courses, submit
257	to be reexamined, work under the supervision of another
258	licensee, or satisfy any terms which are reasonably tailored to
259	the violations found.
260	(g)  Corrective action.
261	(h)  Imposition of an administrative fine in accordance
262	with s. 381.0261 for violations regarding patient rights.
263	(i)  Refund of fees billed and collected from the patient
264	or a third party on behalf of the patient.
265	(j)  Requirement that the practitioner undergo remedial
266	education.
267
268	In determining what action is appropriate, the board, or
269	department when there is no board, must first consider what
270	sanctions are necessary to protect the public or to compensate
271	the patient. Only after those sanctions have been imposed may
272	the disciplining authority consider and include in the order
273	requirements designed to rehabilitate the practitioner. All
274	costs associated with compliance with orders issued under this
275	subsection are the obligation of the practitioner.
276	(3)(a)  Notwithstanding subsection (2), if the ground for
277	disciplinary action is the first-time failure of the licensee to
278	satisfy continuing education requirements established by the
279	board, or by the department if there is no board, the board or
280	department, as applicable, shall issue a citation in accordance
281	with s. 456.077 and assess a fine, as determined by the board or
282	department by rule. In addition, for each hour of continuing
283	education not completed or completed late, the board or
284	department, as applicable, may require the licensee to take 1
285	additional hour of continuing education for each hour not
286	completed or completed late.
287	(b)  Notwithstanding subsection (2), if the ground for
288	disciplinary action is the first-time violation of a practice
289	act for unprofessional conduct, as used in ss. 464.018(1)(h),
290	467.203(1)(f), 468.365(1)(f), and 478.52(1)(f), and no actual
291	harm to the patient occurred, the board or department, as
292	applicable, shall issue a citation in accordance with s. 456.077
293	and assess a penalty as determined by rule of the board or
294	department.
295	(4)  In addition to any other discipline imposed through
296	final order, or citation, entered on or after July 1, 2001,
297	under pursuant to this section or discipline imposed through
298	final order, or citation, entered on or after July 1, 2001, for
299	a violation of any practice act, the board, or the department
300	when there is no board, shall assess costs related to the
301	investigation and prosecution of the case. The Such costs
302	related to the investigation and prosecution include, but are
303	not limited to, salaries and benefits of personnel, costs
304	related to the time spent by the attorney and other personnel
305	working on the case, and any other expenses incurred by the
306	department for the case. The board, or the department when there
307	in no board, shall determine the amount of costs to be assessed
308	after its consideration of an affidavit of itemized costs and
309	any written objections thereto. In any case where the board or
310	the department imposes a fine or assessment and the fine or
311	assessment is not paid within a reasonable time, the such
312	reasonable time to be prescribed in the rules of the board, or
313	the department when there is no board, or in the order assessing
314	the such fines or costs, the department or the Department of
315	Legal Affairs may contract for the collection of, or bring a
316	civil action to recover, the fine or assessment.
317	(5)  In addition to, or in lieu of, any other remedy or
318	criminal prosecution, the department may file a proceeding in
319	the name of the state seeking issuance of an injunction or a
320	writ of mandamus against any person who violates any of the
321	provisions of this chapter, or any provision of law with respect
322	to professions regulated by the department, or any board
323	therein, or the rules adopted pursuant thereto.
324	(6)  If In the event the board, or the department when
325	there is no board, determines that revocation of a license is
326	the appropriate penalty, the revocation shall be permanent.
327	However, the board may establish by rule requirements for
328	reapplication by applicants whose licenses have been permanently
329	revoked. The Such requirements may include, but are shall not be
330	limited to, satisfying current requirements for an initial
331	license.
332	(7)  The purpose of this section is to facilitate uniform
333	discipline for those actions made punishable under this section
334	and, to this end, a reference to this section constitutes a
335	general reference under the doctrine of incorporation by
336	reference.
337	Section 3.  This act shall take effect July 1, 2006.

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