CS for CS for SB 2272 & CS for SB 2722 First Engrossed 20102272e1 1 A bill to be entitled 2 An act relating to controlled substances; amending s. 3 456.037, F.S.; providing that pain-management clinics 4 that are required to be registered with the Department 5 of Health are business establishments; amending s. 6 456.057, F.S.; providing that the Department of Health 7 is not required to attempt to obtain authorization 8 from a patient for the release of the patient’s 9 medical records under certain circumstances; 10 authorizing the department to obtain patient records 11 without authorization or subpoena if the department 12 has probable cause to believe that certain violations 13 have occurred or are occurring; repealing s. 14 458.309(4), (5), and (6), F.S., relating to pain 15 management clinics; creating s. 458.3265, F.S.; 16 requiring all privately owned pain-management clinics, 17 or offices that primarily engage in the treatment of 18 pain by prescribing or dispensing controlled substance 19 medications or by employing a physician who is 20 primarily engaged in the treatment of pain by 21 prescribing or dispensing controlled substance 22 medications, to register with the Department of 23 Health; providing exceptions; requiring each location 24 of a pain-management clinic to register separately; 25 requiring a clinic to designate a physician who is 26 responsible for complying with requirements related to 27 registration and operation of the clinic; requiring 28 the department to deny registration or revoke the 29 registration of a pain-management clinic for certain 30 conditions; authorizing the department to revoke a 31 clinic’s certificate of registration and prohibit 32 physicians associated with the clinic from practicing 33 at the clinic’s location; requiring a pain-management 34 clinic to cease operating if its registration 35 certificate is revoked or suspended; requiring certain 36 named persons to remove all signs and symbols 37 identifying the premises as a pain-management clinic; 38 requiring a pain-management clinic that has had its 39 registration revoked or suspended to advise the 40 department of the disposition of the medicinal drugs 41 located on the premises; providing that medicinal 42 drugs that are purchased or held by a pain–management 43 clinic that is not registered may be deemed 44 adulterated; prohibiting any person acting as an 45 individual or as part of a group from applying for a 46 certificate to operate a pain-management clinic for a 47 certain period after the date the person’s 48 registration certificate is revoked; providing that a 49 change of ownership of a registered pain-management 50 clinic requires submission of a new registration 51 application; providing the responsibilities of a 52 physician who provides professional services at a 53 pain-management clinic; requiring the department to 54 inspect pain-management clinics and its patient 55 records; providing an exception to inspection by the 56 department; requiring a pain-management clinic to 57 document corrective action; requiring the department 58 and the Board of Medicine to adopt rules; authorizing 59 the department to impose fines, deny a clinic’s 60 registration, or revoke a clinic’s registration; 61 amending s. 458.327, F.S.; providing that the 62 commission of certain specified acts involving a 63 nonregistered pain-management clinic constitutes a 64 felony of the third degree or a misdemeanor of the 65 first degree; amending s. 458.331, F.S.; providing 66 additional acts that constitute grounds for 67 disciplinary actions against health professional 68 licensees; repealing s. 459.005(3), (4), and (5), 69 F.S., relating to pain-management clinics; creating s. 70 459.0137, F.S.; requiring all privately owned pain 71 management clinics, or offices that primarily engage 72 in the treatment of pain by prescribing or dispensing 73 controlled substance medications or by employing an 74 osteopathic physician who is primarily engaged in the 75 treatment of pain by prescribing or dispensing 76 controlled substance medications, to register with the 77 department; providing exceptions; requiring each 78 location of a pain-management clinic to register 79 separately; requiring a clinic to designate an 80 osteopathic physician who is responsible for complying 81 with requirements related to registration and 82 operation of the clinic; requiring the department to 83 deny registration or revoke the registration of a 84 pain-management clinic for certain conditions; 85 authorizing the department to revoke a clinic’s 86 certificate of registration and prohibit osteopathic 87 physicians associated with the clinic from practicing 88 at the clinic’s location; requiring a pain-management 89 clinic to cease operating if its registration 90 certificate is revoked or suspended; requiring certain 91 named persons to remove all signs and symbols 92 identifying the premises as a pain-management clinic; 93 requiring a pain-management clinic that has had its 94 registration revoked or suspended to advise the 95 department of the disposition of the medicinal drugs 96 located on the premises; providing that medicinal 97 drugs that are purchased or held by a pain–management 98 clinic that is not registered may be deemed 99 adulterated; prohibiting any person acting as an 100 individual or as part of a group from applying for a 101 certificate to operate a pain-management clinic for a 102 certain period after the date the person’s 103 registration certificate is revoked; providing that a 104 change of ownership of a registered pain-management 105 clinic requires submission of a new registration 106 application; providing the responsibilities of an 107 osteopathic physician who provides professional 108 services at a pain-management clinic; requiring the 109 department to inspect pain-management clinics and its 110 patient records; providing an exception to inspection 111 by the department; requiring a pain-management clinic 112 to document corrective action; requiring the 113 department and the Board of Osteopathic Medicine to 114 adopt rules; authorizing the department to impose 115 fines, deny a clinic’s registration, or revoke a 116 clinic’s registration; amending s. 459.013, F.S.; 117 providing that the commission of certain specified 118 acts involving a nonregistered pain-management clinic 119 constitutes a felony of the third degree or a 120 misdemeanor of the first degree; amending s. 459.015, 121 F.S.; providing additional acts that constitute 122 grounds for disciplinary actions against health 123 professional licensees; amending s. 893.055, F.S.; 124 defining the term “program manager”; requiring that 125 the program manager work with certain licensure boards 126 and stakeholders to develop rules; authorizing the 127 program manager to provide relevant information to law 128 enforcement agencies under certain circumstances; 129 amending s. 893.0551, F.S.; providing for disclosure 130 of confidential and exempt information to applicable 131 law enforcement; providing an effective date. 132 133 Be It Enacted by the Legislature of the State of Florida: 134 135 Section 1. Subsection (5) of section 456.037, Florida 136 Statutes, is amended to read: 137 456.037 Business establishments; requirements for active 138 status licenses; delinquency; discipline; applicability.— 139 (5) This section applies to any business establishment 140 registered, permitted, or licensed by the department to do 141 business. Business establishments include, but are not limited 142 to, dental laboratories, electrology facilities, massage 143 establishments,andpharmacies, and pain-management clinics 144 required to be registered under s. 458.3265 or s. 459.0137. 145 Section 2. Paragraph (a) of subsection (9) of section 146 456.057, Florida Statutes, is amended to read: 147 456.057 Ownership and control of patient records; report or 148 copies of records to be furnished.— 149 (9)(a)1. The department may obtain patient records pursuant 150 to a subpoena without written authorization from the patient if 151 the department and the probable cause panel of the appropriate 152 board, if any, find reasonable cause to believe that a health 153 care practitioner has excessively or inappropriately prescribed 154 any controlled substance specified in chapter 893 in violation 155 of this chapter or any professional practice act or that a 156 health care practitioner has practiced his or her profession 157 below that level of care, skill, and treatment required as 158 defined by this chapter or any professional practice act and 159 also find that appropriate, reasonable attempts were made to 160 obtain a patient release. Notwithstanding the foregoing, the 161 department need not attempt to obtain a patient release when 162 investigating an offense involving the inappropriate 163 prescribing, overprescribing, or diversion of controlled 164 substances and the offense involves a pain-management clinic. 165 The department may obtain patient records without patient 166 authorization or subpoena from any pain-management clinic 167 required to be licensed if the department has probable cause to 168 believe that a violation of any provision of s. 458.3265 or s. 169 459.0137 is occurring or has occurred and reasonably believes 170 that obtaining such authorization is not feasible due to the 171 volume of the dispensing and prescribing activity involving 172 controlled substances and that obtaining patient authorization 173 or the issuance of a subpoena would jeopardize the 174 investigation. 175 2. The department may obtain patient records and insurance 176 information pursuant to a subpoena without written authorization 177 from the patient if the department and the probable cause panel 178 of the appropriate board, if any, find reasonable cause to 179 believe that a health care practitioner has provided inadequate 180 medical care based on termination of insurance and also find 181 that appropriate, reasonable attempts were made to obtain a 182 patient release. 183 3. The department may obtain patient records, billing 184 records, insurance information, provider contracts, and all 185 attachments thereto pursuant to a subpoena without written 186 authorization from the patient if the department and probable 187 cause panel of the appropriate board, if any, find reasonable 188 cause to believe that a health care practitioner has submitted a 189 claim, statement, or bill using a billing code that would result 190 in payment greater in amount than would be paid using a billing 191 code that accurately describes the services performed, requested 192 payment for services that were not performed by that health care 193 practitioner, used information derived from a written report of 194 an automobile accident generated pursuant to chapter 316 to 195 solicit or obtain patients personally or through an agent 196 regardless of whether the information is derived directly from 197 the report or a summary of that report or from another person, 198 solicited patients fraudulently, received a kickback as defined 199 in s. 456.054, violated the patient brokering provisions of s. 200 817.505, or presented or caused to be presented a false or 201 fraudulent insurance claim within the meaning of s. 202 817.234(1)(a), and also find that, within the meaning of s. 203 817.234(1)(a), patient authorization cannot be obtained because 204 the patient cannot be located or is deceased, incapacitated, or 205 suspected of being a participant in the fraud or scheme, and if 206 the subpoena is issued for specific and relevant records. 207 4. Notwithstanding subparagraphs 1.-3., when the department 208 investigates a professional liability claim or undertakes action 209 pursuant to s. 456.049 or s. 627.912, the department may obtain 210 patient records pursuant to a subpoena without written 211 authorization from the patient if the patient refuses to 212 cooperate or if the department attempts to obtain a patient 213 release and the failure to obtain the patient records would be 214 detrimental to the investigation. 215 Section 3. Subsections (4), (5), and (6) of section 216 458.309, Florida Statutes, are repealed. 217 Section 4. Section 458.3265, Florida Statutes, is created 218 to read: 219 458.3265 Pain-management clinics.— 220 (1) REGISTRATION.— 221 (a) All privately owned pain-management clinics, 222 facilities, or offices, hereinafter referred to as “clinics,” 223 which advertise in any medium for any type of pain-management 224 services, or employ a physician who is primarily engaged in the 225 treatment of pain by prescribing or dispensing controlled 226 substance medications, must register with the department unless: 227 1. That clinic is licensed as a facility pursuant to 228 chapter 395; 229 2. The majority of the physicians who provide services in 230 the clinic primarily provide surgical services; 231 3. The clinic is owned by a publicly held corporation whose 232 shares are traded on a national exchange or on the over-the 233 counter market and whose total assets at the end of the 234 corporation’s most recent fiscal quarter exceeded $50 million; 235 4. The clinic is affiliated with an accredited medical 236 school at which training is provided for medical students, 237 residents, or fellows; 238 5. The clinic does not prescribe or dispense controlled 239 substances for the treatment of pain; or 240 6. The clinic is owned by a corporate entity exempt from 241 federal taxation under 26 U.S.C. s. 501(c)(3). 242 (b) Each clinic location shall be registered separately 243 regardless of whether the clinic is operated under the same 244 business name or management as another clinic. 245 (c) As a part of registration, a clinic must designate a 246 physician who is responsible for complying with all requirements 247 related to registration and operation of the clinic in 248 compliance with this section. Within 10 days after termination 249 of a designated physician, the clinic must notify the department 250 of the identity of another designated physician for that clinic. 251 The designated physician shall have a full, active, and 252 unencumbered license under this chapter or chapter 459 and shall 253 practice at the clinic location for which the physician has 254 assumed responsibility. Failing to have a licensed designated 255 physician practicing at the location of the registered clinic 256 may be the basis for a summary suspension of the clinic 257 registration certificate as described in s. 456.073(8) for a 258 license or s. 120.60(6). 259 (d) The department shall deny registration to any clinic 260 that is not fully owned by a physician licensed under this 261 chapter or chapter 459 or a group of physicians, each of whom is 262 licensed under this chapter or chapter 459; or that is not a 263 health care clinic licensed under part X of chapter 400. 264 (e) The department shall deny registration to any pain 265 management clinic owned by or with any contractual or employment 266 relationship with a physician: 267 1. Whose Drug Enforcement Administration number has ever 268 been revoked. 269 2. Whose application for a license to prescribe, dispense, 270 or administer a controlled substance has been denied by any 271 jurisdiction. 272 3. Who has been convicted of or plead guilty or nolo 273 contendere to, regardless of adjudication, an offense that 274 constitutes a felony for receipt of illicit and diverted drugs, 275 including a controlled substance listed in Schedule I, Schedule 276 II, Schedule III, Schedule IV, or Schedule V of s. 893.03, in 277 this state, any other state, or the United States. 278 (f) If the department finds that a pain-management clinic 279 does not meet the requirement of paragraph (d) or is owned, 280 directly or indirectly, by a person meeting any criteria listed 281 in paragraph (e), the department shall revoke the certificate of 282 registration previously issued by the department. As determined 283 by rule, the department may grant an exemption to denying a 284 registration or revoking a previously issued registration if 285 more than 10 years have elapsed since adjudication. As used in 286 this subsection, the term “convicted” includes an adjudication 287 of guilt following a plea of guilty or nolo contendere or the 288 forfeiture of a bond when charged with a crime. 289 (g) The department may revoke the clinic’s certificate of 290 registration and prohibit all physicians associated with that 291 pain-management clinic from practicing at that clinic location 292 based upon an annual inspection and evaluation of the factors 293 described in subsection (3). 294 (h) If the registration of a pain-management clinic is 295 revoked or suspended, the designated physician of the pain 296 management clinic, the owner or lessor of the pain-management 297 clinic property, the manager, and the proprietor shall cease to 298 operate the facility as a pain-management clinic as of the 299 effective date of the suspension or revocation. 300 (i) If a pain-management clinic registration is revoked or 301 suspended, the designated physician of the pain-management 302 clinic, the owner or lessor of the clinic property, the manager, 303 or the proprietor is responsible for removing all signs and 304 symbols identifying the premises as a pain-management clinic. 305 (j) Upon the effective date of the suspension or 306 revocation, the designated physician of the pain-management 307 clinic shall advise the department of the disposition of the 308 medicinal drugs located on the premises. The disposition is 309 subject to the supervision and approval of the department. 310 Medicinal drugs that are purchased or held by a pain–management 311 clinic that is not registered may be deemed adulterated pursuant 312 to s. 499.006. 313 (k) If the clinic’s registration is revoked, any person 314 named in the registration documents of the pain-management 315 clinic, including persons owning or operating the pain 316 management clinic, may not, as an individual or as a part of a 317 group, apply to operate a pain-management clinic for 5 years 318 after the date the registration is revoked. 319 (l) The period of suspension for the registration of a pain 320 management clinic shall be prescribed by the department, but may 321 not exceed 1 year. 322 (m) A change of ownership of a registered pain-management 323 clinic requires submission of a new registration application. 324 (2) PHYSICIAN RESPONSIBILITIES.—These responsibilities 325 apply to any physician who provides professional services in a 326 pain-management clinic that is required to be registered in 327 subsection (1). 328 (a) A physician may not practice medicine in a pain 329 management clinic, as described in subsection (4), if: 330 1. The pain-management clinic is not registered with the 331 department as required by this section; or 332 2. Effective July 1, 2012, the physician has not 333 successfully completed a pain medicine fellowship that is 334 accredited by the Accreditation Council for Graduate Medical 335 Education or a pain medicine residency that is accredited by the 336 Accreditation Council for Graduate Medical Education or, prior 337 to July 1, 2012, does not comply with rules adopted by the 338 board. 339 340 Any physician who qualifies to practice medicine in a pain 341 management clinic pursuant to rules adopted by the Board of 342 Medicine as of July 1, 2012, may continue to practice medicine 343 in a pain-management clinic as long as the physician continues 344 to meet the qualifications set forth in the board rules. A 345 physician who violates this paragraph is subject to disciplinary 346 action by his or her appropriate medical regulatory board. 347 (b) A person may not dispense any medication, including a 348 controlled substance, on the premises of a registered pain 349 management clinic unless he or she is a physician licensed under 350 this chapter or chapter 459. 351 (c) A physician must perform a physical examination of a 352 patient on the same day that he or she dispenses or prescribes a 353 controlled substance to a patient at a pain-management clinic. 354 If the physician prescribes or dispenses more than a 72-hour 355 dose of controlled substances for the treatment of chronic 356 nonmalignant pain, the physician must document in the patient’s 357 record the reason for prescribing or dispensing that quantity. 358 (d) A physician authorized to prescribe controlled 359 substances who practices at a pain-management clinic is 360 responsible for maintaining the control and security of his or 361 her prescription blanks and any other method used for 362 prescribing controlled substance pain medication. The physician 363 shall comply with the requirements for counterfeit-resistant 364 prescription blanks in s. 893.065 and the rules adopted pursuant 365 to that section. The physician shall notify in writing the 366 department within 24 hours following any theft or loss of a 367 prescription blank or breach of any other method for prescribing 368 pain medication. 369 (e) The designated physician of a pain-management clinic 370 shall notify the applicable board in writing of the date of 371 termination of employment within 10 days after terminating his 372 or her employment with a pain-management clinic that is required 373 to be registered under subsection (1). 374 (3) INSPECTION.— 375 (a) The department shall inspect the pain-management clinic 376 annually, including a review of the patient records, to ensure 377 that it complies with this section and the rules of the Board of 378 Medicine adopted pursuant to subsection (4) unless the clinic is 379 accredited by a nationally recognized accrediting agency 380 approved by the Board of Medicine. 381 (b) During an onsite inspection, the department shall make 382 a reasonable attempt to discuss each violation with the owner or 383 designated physician of the pain-management clinic before 384 issuing a formal written notification. 385 (c) Any action taken to correct a violation shall be 386 documented in writing by the owner or designated physician of 387 the pain-management clinic and verified by followup visits by 388 departmental personnel. 389 (4) RULEMAKING.— 390 (a) The department shall adopt rules necessary to 391 administer the registration and inspection of pain-management 392 clinics which establish the specific requirements, procedures, 393 forms, and fees. 394 (b) The department shall adopt a rule defining what 395 constitutes practice by a designated physician at the clinic 396 location for which the physician has assumed responsibility, as 397 set forth in subsection (1). When adopting the rule, the 398 department shall consider the number of clinic employees, the 399 location of the pain-management clinic, the clinic’s hours of 400 operation, and the amount of controlled substances being 401 prescribed, dispensed, or administered at the pain-management 402 clinic. 403 (c) The Board of Medicine shall adopt a rule establishing 404 the maximum number of prescriptions for Schedule II or Schedule 405 III controlled substances or the controlled substance Alprazolam 406 which may be written at any one registered pain-management 407 clinic during any 24-hour period. 408 (d) The Board of Medicine shall adopt rules setting forth 409 standards of practice for physicians practicing in privately 410 owned pain-management clinics that primarily engage in the 411 treatment of pain by prescribing or dispensing controlled 412 substance medications. Such rules shall address, but need not be 413 limited to: 414 1. Facility operations; 415 2. Physical operations; 416 3. Infection control requirements; 417 4. Health and safety requirements; 418 5. Quality assurance requirements; 419 6. Patient records; 420 7. Training requirements for all facility health care 421 practitioners who are not regulated by another board; 422 8. Inspections; and 423 9. Data collection and reporting requirements. 424 425 A physician is primarily engaged in the treatment of pain by 426 prescribing or dispensing controlled substance medications when 427 the majority of the patients seen are prescribed or dispensed 428 controlled substance medications for the treatment of chronic 429 nonmalignant pain. Chronic nonmalignant pain is pain unrelated 430 to cancer which persists beyond the usual course of the disease 431 or the injury that is the cause of the pain or more than 90 days 432 after surgery. 433 (5) PENALTIES; ENFORCEMENT.— 434 (a) The department may impose an administrative fine on the 435 clinic of up to $5,000 per violation for violating the 436 requirements of this section; chapter 499, the Florida Drug and 437 Cosmetic Act; 21 U.S.C. ss. 301-392, the Federal Food, Drug, and 438 Cosmetic Act; 21 U.S.C. ss. 821 et seq., the Comprehensive Drug 439 Abuse Prevention and Control Act; chapter 893, the Florida 440 Comprehensive Drug Abuse Prevention and Control Act; or the 441 rules of the department. In determining whether a penalty is to 442 be imposed, and in fixing the amount of the fine, the department 443 shall consider the following factors: 444 1. The gravity of the violation, including the probability 445 that death or serious physical or emotional harm to a patient 446 has resulted, or could have resulted, from the pain-management 447 clinic’s actions or the actions of the physician, the severity 448 of the action or potential harm, and the extent to which the 449 provisions of the applicable laws or rules were violated. 450 2. What actions, if any, the owner or designated physician 451 took to correct the violations. 452 3. Whether there were any previous violations at the pain 453 management clinic. 454 4. The financial benefits that the pain-management clinic 455 derived from committing or continuing to commit the violation. 456 (b) Each day a violation continues after the date fixed for 457 termination of the violation as ordered by the department 458 constitutes an additional, separate, and distinct violation. 459 (c) The department may impose a fine and, in the case of an 460 owner-operated pain-management clinic, revoke or deny a pain 461 management clinic’s registration, if the clinic’s designated 462 physician knowingly and intentionally misrepresents actions 463 taken to correct a violation. 464 (d) An owner or designated physician of a pain-management 465 clinic who concurrently operates an unregistered pain-management 466 clinic is subject to an administrative fine of $5,000 per day. 467 (e) If the owner of a pain-management clinic that requires 468 registration fails to apply to register the clinic upon a 469 change-of-ownership and operates the clinic under the new 470 ownership, the owner is subject to a fine of $5,000. 471 Section 5. Section 458.327, Florida Statutes, is amended to 472 read: 473 458.327 Penalty for violations.— 474 (1) Each of the following acts constitutes a felony of the 475 third degree, punishable as provided in s. 775.082, s. 775.083, 476 or s. 775.084: 477 (a) The practice of medicine or an attempt to practice 478 medicine without a license to practice in Florida. 479 (b) The use or attempted use of a license which is 480 suspended or revoked to practice medicine. 481 (c) Attempting to obtain or obtaining a license to practice 482 medicine by knowing misrepresentation. 483 (d) Attempting to obtain or obtaining a position as a 484 medical practitioner or medical resident in a clinic or hospital 485 through knowing misrepresentation of education, training, or 486 experience. 487 (e) Knowingly operating, owning, or managing a 488 nonregistered pain-management clinic that is required to be 489 registered with the Department of Health pursuant to s. 490 458.3265(1). 491 (2) Each of the following acts constitutes a misdemeanor of 492 the first degree, punishable as provided in s. 775.082 or s. 493 775.083: 494 (a) Knowingly concealing information relating to violations 495 of this chapter. 496 (b) Making any willfully false oath or affirmation whenever 497 an oath or affirmation is required by this chapter. 498 (c) Referring any patient, for health care goods or 499 services, to a partnership, firm, corporation, or other business 500 entity in which the physician or the physician’s employer has an 501 equity interest of 10 percent or more unless, prior to such 502 referral, the physician notifies the patient of his or her 503 financial interest and of the patient’s right to obtain such 504 goods or services at the location of the patient’s choice. This 505 section does not apply to the following types of equity 506 interest: 507 1. The ownership of registered securities issued by a 508 publicly held corporation or the ownership of securities issued 509 by a publicly held corporation, the shares of which are traded 510 on a national exchange or the over-the-counter market; 511 2. A physician’s own practice, whether he or she is a sole 512 practitioner or part of a group, when the health care good or 513 service is prescribed or provided solely for the physician’s own 514 patients and is provided or performed by the physician or under 515 the physician’s supervision; or 516 3. An interest in real property resulting in a landlord 517 tenant relationship between the physician and the entity in 518 which the equity interest is held, unless the rent is 519 determined, in whole or in part, by the business volume or 520 profitability of the tenant or is otherwise unrelated to fair 521 market value. 522 (d) Leading the public to believe that one is licensed as a 523 medical doctor, or is engaged in the licensed practice of 524 medicine, without holding a valid, active license. 525 (e) Practicing medicine or attempting to practice medicine 526 with an inactive or delinquent license. 527 (f) Knowingly prescribing or dispensing, or causing to be 528 prescribed or dispensed, controlled substances in a 529 nonregistered pain-management clinic that is required to be 530 registered with the Department of Health pursuant to s. 531 458.3265(1). 532 Section 6. Paragraphs (oo) and (pp) are added to subsection 533 (1) of section 458.331, Florida Statutes, to read: 534 458.331 Grounds for disciplinary action; action by the 535 board and department.— 536 (1) The following acts constitute grounds for denial of a 537 license or disciplinary action, as specified in s. 456.072(2): 538 (oo) Applicable to a licensee who serves as the designated 539 physician of a pain-management clinic as defined in s. 458.3265 540 or s. 459.0137: 541 1. Registering a pain-management clinic through 542 misrepresentation or fraud; 543 2. Procuring, or attempting to procure, the registration of 544 a pain-management clinic for any other person by making or 545 causing to be made, any false representation; 546 3. Failing to comply with any requirement of chapter 499, 547 the Florida Drug and Cosmetic Act; 21 U.S.C. ss. 301-392, the 548 Federal Food, Drug, and Cosmetic Act; 21 U.S.C. ss. 821 et seq., 549 the Drug Abuse Prevention and Control Act; or chapter 893, the 550 Florida Comprehensive Drug Abuse Prevention and Control Act; 551 4. Being convicted or found guilty of, regardless of 552 adjudication to, a felony or any other crime involving moral 553 turpitude, fraud, dishonesty, or deceit in any jurisdiction of 554 the courts of this state, of any other state, or of the United 555 States; 556 5. Being convicted of, or disciplined by a regulatory 557 agency of the Federal Government or a regulatory agency of 558 another state for any offense that would constitute a violation 559 of this chapter; 560 6. Being convicted of, or entering a plea of guilty or nolo 561 contendere to, regardless of adjudication, a crime in any 562 jurisdiction of the courts of this state, of any other state, or 563 of the United States which relates to the practice of, or the 564 ability to practice, a licensed health care profession; 565 7. Being convicted of, or entering a plea of guilty or nolo 566 contendere to, regardless of adjudication, a crime in any 567 jurisdiction of the courts of this state, of any other state, or 568 of the United States which relates to health care fraud; 569 8. Dispensing any medicinal drug based upon a communication 570 that purports to be a prescription as defined in s. 465.003(14) 571 or s. 893.02 if the dispensing practitioner knows or has reason 572 to believe that the purported prescription is not based upon a 573 valid practitioner-patient relationship; or 574 9. Failing to timely notify the board of the date of his or 575 her termination from a pain-management clinic as required by s. 576 458.3265(2). 577 (pp) Failing to timely notify the department of the theft 578 of prescription blanks from a pain-management clinic or a breach 579 of other methods for prescribing within 24 hours as required by 580 s. 458.3265(2). 581 Section 7. Subsections (3), (4), and (5) of section 582 459.005, Florida Statutes, are repealed. 583 Section 8. Section 459.0137, Florida Statutes, is created 584 to read: 585 459.0137 Pain-management clinics.— 586 (1) REGISTRATION.— 587 (a) All privately owned pain-management clinics, 588 facilities, or offices, hereinafter referred to as “clinics,” 589 which advertise in any medium for any type of pain-management 590 services, or employ an osteopathic physician who is primarily 591 engaged in the treatment of pain by prescribing or dispensing 592 controlled substance medications, must register with the 593 department unless: 594 1. That clinic is licensed as a facility pursuant to 595 chapter 395; 596 2. The majority of the physicians who provide services in 597 the clinic primarily provide surgical services; 598 3. The clinic is owned by a publicly held corporation whose 599 shares are traded on a national exchange or on the over-the 600 counter market and whose total assets at the end of the 601 corporation’s most recent fiscal quarter exceeded $50 million; 602 4. The clinic is affiliated with an accredited medical 603 school at which training is provided for medical students, 604 residents, or fellows; 605 5. The clinic does not prescribe or dispense controlled 606 substances for the treatment of pain; or 607 6. The clinic is owned by a corporate entity exempt from 608 federal taxation under 26 U.S.C. s. 501(c)(3). 609 (b) Each clinic location shall be registered separately 610 regardless of whether the clinic is operated under the same 611 business name or management as another clinic. 612 (c) As a part of registration, a clinic must designate an 613 osteopathic physician who is responsible for complying with all 614 requirements related to registration and operation of the clinic 615 in compliance with this section. Within 10 days after 616 termination of a designated osteopathic physician, the clinic 617 must notify the department of the identity of another designated 618 physician for that clinic. The designated physician shall have a 619 full, active, and unencumbered license under chapter 458 or this 620 chapter and shall practice at the clinic location for which the 621 physician has assumed responsibility. Failing to have a licensed 622 designated osteopathic physician practicing at the location of 623 the registered clinic may be the basis for a summary suspension 624 of the clinic registration certificate as described in s. 625 456.073(8) for a license or s. 120.60(6). 626 (d) The department shall deny registration to any clinic 627 that is not fully owned by a physician licensed under chapter 628 458 or this chapter or a group of physicians, each of whom is 629 licensed under chapter 458 or this chapter; or that is not a 630 health care clinic licensed under part X of chapter 400. 631 (e) The department shall deny registration to any pain 632 management clinic owned by or with any contractual or employment 633 relationship with a physician: 634 1. Whose Drug Enforcement Administration number has ever 635 been revoked. 636 2. Whose application for a license to prescribe, dispense, 637 or administer a controlled substance has been denied by any 638 jurisdiction. 639 3. Who has been convicted of or plead guilty or nolo 640 contendere to, regardless of adjudication, an offense that 641 constitutes a felony for receipt of illicit and diverted drugs, 642 including a controlled substance listed in Schedule I, Schedule 643 II, Schedule III, Schedule IV, or Schedule V of s. 893.03, in 644 this state, any other state, or the United States. 645 (f) If the department finds that a pain-management clinic 646 does not meet the requirement of paragraph (d) or is owned, 647 directly or indirectly, by a person meeting any criteria listed 648 in paragraph (e), the department shall revoke the certificate of 649 registration previously issued by the department. As determined 650 by rule, the department may grant an exemption to denying a 651 registration or revoking a previously issued registration if 652 more than 10 years have elapsed since adjudication. As used in 653 this subsection, the term “convicted” includes an adjudication 654 of guilt following a plea of guilty or nolo contendere or the 655 forfeiture of a bond when charged with a crime. 656 (g) The department may revoke the clinic’s certificate of 657 registration and prohibit all physicians associated with that 658 pain-management clinic from practicing at that clinic location 659 based upon an annual inspection and evaluation of the factors 660 described in subsection (3). 661 (h) If the registration of a pain-management clinic is 662 revoked or suspended, the designated physician of the pain 663 management clinic, the owner or lessor of the pain-management 664 clinic property, the manager, and the proprietor shall cease to 665 operate the facility as a pain-management clinic as of the 666 effective date of the suspension or revocation. 667 (i) If a pain-management clinic registration is revoked or 668 suspended, the designated physician of the pain-management 669 clinic, the owner or lessor of the clinic property, the manager, 670 or the proprietor is responsible for removing all signs and 671 symbols identifying the premises as a pain-management clinic. 672 (j) Upon the effective date of the suspension or 673 revocation, the designated physician of the pain-management 674 clinic shall advise the department of the disposition of the 675 medicinal drugs located on the premises. The disposition is 676 subject to the supervision and approval of the department. 677 Medicinal drugs that are purchased or held by a pain–management 678 clinic that is not registered may be deemed adulterated pursuant 679 to s. 499.006. 680 (k) If the clinic’s registration is revoked, any person 681 named in the registration documents of the pain-management 682 clinic, including persons owning or operating the pain 683 management clinic, may not as an individual or as a part of a 684 group, make application for a permit to operate a pain 685 management clinic for 5 years after the date the registration is 686 revoked. 687 (l) The period of suspension for the registration of a pain 688 management clinic shall be prescribed by the department, but may 689 not exceed 1 year. 690 (m) A change of ownership of a registered pain-management 691 clinic requires submission of a new registration application. 692 (2) PHYSICIAN RESPONSIBILITIES.—These responsibilities 693 apply to any osteopathic physician who provides professional 694 services in a pain-management clinic that is required to be 695 registered in subsection (1). 696 (a) An osteopathic physician may not practice medicine in a 697 pain-management clinic, as described in subsection (4), if: 698 1. The pain-management clinic is not registered with the 699 department as required by this section; or 700 2. Effective July 1, 2012, the physician has not 701 successfully completed a pain medicine fellowship that is 702 accredited by the Accreditation Council for Graduate Medical 703 Education or the American Osteopathic Association or a pain 704 medicine residency that is accredited by the Accreditation 705 Council for Graduate Medical Education or the American 706 Osteopathic Association or, prior to July 1, 2012, does not 707 comply with rules adopted by the board. 708 709 Any physician who qualifies to practice medicine in a pain 710 management clinic pursuant to rules adopted by the Board of 711 Osteopathic Medicine as of July 1, 2012, may continue to 712 practice medicine in a pain-management clinic as long as the 713 physician continues to meet the qualifications set forth in the 714 board rules. An osteopathic physician who violates this 715 paragraph is subject to disciplinary action by his or her 716 appropriate medical regulatory board. 717 (b) A person may not dispense any medication, including a 718 controlled substance, on the premises of a registered pain 719 management clinic unless he or she is a physician licensed under 720 this chapter or chapter 458. 721 (c) An osteopathic physician must perform a physical 722 examination of a patient on the same day that he or she 723 dispenses or prescribes a controlled substance to a patient at a 724 pain-management clinic. If the osteopathic physician prescribes 725 or dispenses more than a 72-hour dose of controlled substances 726 for the treatment of chronic nonmalignant pain, the osteopathic 727 physician must document in the patient’s record the reason for 728 prescribing or dispensing that quantity. 729 (d) An osteopathic physician authorized to prescribe 730 controlled substances who practices at a pain-management clinic 731 is responsible for maintaining the control and security of his 732 or her prescription blanks and any other method used for 733 prescribing controlled substance pain medication. The 734 osteopathic physician shall comply with the requirements for 735 counterfeit-resistant prescription blanks in s. 893.065 and the 736 rules adopted pursuant to that section. The osteopathic 737 physician shall notify in writing the department within 24 hours 738 following any theft or loss of a prescription blank or breach of 739 any other method for prescribing pain medication. 740 (e) The designated osteopathic physician of a pain 741 management clinic shall notify the applicable board in writing 742 of the date of termination of employment within 10 days after 743 terminating his or her employment with a pain-management clinic 744 that is required to be registered under subsection (1). 745 (3) INSPECTION.— 746 (a) The department shall inspect the pain-management clinic 747 annually, including a review of the patient records, to ensure 748 that it complies with this section and the rules of the Board of 749 Osteopathic Medicine adopted pursuant to subsection (4) unless 750 the clinic is accredited by a nationally recognized accrediting 751 agency approved by the Board of Osteopathic Medicine. 752 (b) During an onsite inspection, the department shall make 753 a reasonable attempt to discuss each violation with the owner or 754 designated physician of the pain-management clinic before 755 issuing a formal written notification. 756 (c) Any action taken to correct a violation shall be 757 documented in writing by the owner or designated physician of 758 the pain-management clinic and verified by followup visits by 759 departmental personnel. 760 (4) RULEMAKING.— 761 (a) The department shall adopt rules necessary to 762 administer the registration and inspection of pain-management 763 clinics which establish the specific requirements, procedures, 764 forms, and fees. 765 (b) The department shall adopt a rule defining what 766 constitutes practice by a designated osteopathic physician at 767 the clinic location for which the physician has assumed 768 responsibility, as set forth in subsection (1). When adopting 769 the rule, the department shall consider the number of clinic 770 employees, the location of the pain-management clinic, the 771 clinic’s hours of operation, and the amount of controlled 772 substances being prescribed, dispensed, or administered at the 773 pain-management clinic. 774 (c) The Board of Osteopathic Medicine shall adopt a rule 775 establishing the maximum number of prescriptions for Schedule II 776 or Schedule III controlled substances or the controlled 777 substance Alprazolam which may be written at any one registered 778 pain-management clinic during any 24-hour period. 779 (d) The Board of Osteopathic Medicine shall adopt rules 780 setting forth standards of practice for osteopathic physicians 781 practicing in privately owned pain-management clinics that 782 primarily engage in the treatment of pain by prescribing or 783 dispensing controlled substance medications. Such rules shall 784 address, but need not be limited to: 785 1. Facility operations; 786 2. Physical operations; 787 3. Infection control requirements; 788 4. Health and safety requirements; 789 5. Quality assurance requirements; 790 6. Patient records; 791 7. Training requirements for all facility health care 792 practitioners who are not regulated by another board; 793 8. Inspections; and 794 9. Data collection and reporting requirements. 795 796 An osteopathic physician is primarily engaged in the treatment 797 of pain by prescribing or dispensing controlled substance 798 medications when the majority of the patients seen are 799 prescribed or dispensed controlled substance medications for the 800 treatment of chronic nonmalignant pain. Chronic nonmalignant 801 pain is pain unrelated to cancer which persists beyond the usual 802 course of the disease or the injury that is the cause of the 803 pain or more than 90 days after surgery. 804 (5) PENALTIES; ENFORCEMENT.— 805 (a) The department may impose an administrative fine on the 806 clinic of up to $5,000 per violation for violating the 807 requirements of this section; chapter 499, the Florida Drug and 808 Cosmetic Act; 21 U.S.C. ss. 301-392, the Federal Food, Drug, and 809 Cosmetic Act; 21 U.S.C. ss. 821 et seq., the Comprehensive Drug 810 Abuse Prevention and Control Act; chapter 893, the Florida 811 Comprehensive Drug Abuse Prevention and Control Act; or the 812 rules of the department. In determining whether a penalty is to 813 be imposed, and in fixing the amount of the fine, the department 814 shall consider the following factors: 815 1. The gravity of the violation, including the probability 816 that death or serious physical or emotional harm to a patient 817 has resulted, or could have resulted, from the pain-management 818 clinic’s actions or the actions of the osteopathic physician, 819 the severity of the action or potential harm, and the extent to 820 which the provisions of the applicable laws or rules were 821 violated. 822 2. What actions, if any, the owner or designated 823 osteopathic physician took to correct the violations. 824 3. Whether there were any previous violations at the pain 825 management clinic. 826 4. The financial benefits that the pain-management clinic 827 derived from committing or continuing to commit the violation. 828 (b) Each day a violation continues after the date fixed for 829 termination of the violation as ordered by the department 830 constitutes an additional, separate, and distinct violation. 831 (c) The department may impose a fine and, in the case of an 832 owner-operated pain-management clinic, revoke or deny a pain 833 management clinic’s registration, if the clinic’s designated 834 osteopathic physician knowingly and intentionally misrepresents 835 actions taken to correct a violation. 836 (d) An owner or designated osteopathic physician of a pain 837 management clinic who concurrently operates an unregistered 838 pain-management clinic is subject to an administrative fine of 839 $5,000 per day. 840 (e) If the owner of a pain-management clinic that requires 841 registration fails to apply to register the clinic upon a 842 change-of-ownership and operates the clinic under the new 843 ownership, the owner is subject to a fine of $5,000. 844 Section 9. Subsections (1) and (2) of section 459.013, 845 Florida Statutes, are amended to read: 846 459.013 Penalty for violations.— 847 (1) Each of the following acts constitutes a felony of the 848 third degree, punishable as provided in s. 775.082, s. 775.083, 849 or s. 775.084: 850 (a) The practice of osteopathic medicine, or an attempt to 851 practice osteopathic medicine, without an active license or 852 certificate issued pursuant to this chapter. 853 (b) The practice of osteopathic medicine by a person 854 holding a limited license, osteopathic faculty certificate, or 855 other certificate issued under this chapter beyond the scope of 856 practice authorized for such licensee or certificateholder. 857 (c) Attempting to obtain or obtaining a license to practice 858 osteopathic medicine by knowing misrepresentation. 859 (d) Attempting to obtain or obtaining a position as an 860 osteopathic medical practitioner or osteopathic medical resident 861 in a clinic or hospital through knowing misrepresentation of 862 education, training, or experience. 863 (e) Knowingly operating, owning, or managing a 864 nonregistered pain-management clinic that is required to be 865 registered with the Department of Health pursuant to s. 866 459.0137(1). 867 (2) Each of the following acts constitutes a misdemeanor of 868 the first degree, punishable as provided in s. 775.082 or s. 869 775.083: 870 (a) Knowingly concealing information relating to violations 871 of this chapter. 872 (b) Making any willfully false oath or affirmation whenever 873 an oath or affirmation is required by this chapter. 874 (c) The practice of medicine as a resident or intern 875 without holding a valid current registration pursuant to s. 876 459.021. 877 (d) Knowingly prescribing or dispensing, or causing to be 878 prescribed or dispensed, controlled substances in a 879 nonregistered pain-management clinic that is required to be 880 registered with the Department of Health pursuant to s. 881 459.0137(1). 882 Section 10. Paragraphs (qq) and (rr) are added to 883 subsection (1) of section 459.015, Florida Statutes, to read: 884 459.015 Grounds for disciplinary action; action by the 885 board and department.— 886 (1) The following acts constitute grounds for denial of a 887 license or disciplinary action, as specified in s. 456.072(2): 888 (qq) Applicable to a licensee who serves as the designated 889 physician of a pain-management clinic as defined in s. 458.3265 890 or s. 459.0137: 891 1. Registering a pain-management clinic through 892 misrepresentation or fraud; 893 2. Procuring, or attempting to procure, the registration of 894 a pain-management clinic for any other person by making or 895 causing to be made, any false representation; 896 3. Failing to comply with any requirement of chapter 499, 897 the Florida Drug and Cosmetic Act; 21 U.S.C. ss. 301-392, the 898 Federal Food, Drug, and Cosmetic Act; 21 U.S.C. ss. 821 et seq., 899 the Drug Abuse Prevention and Control Act; or chapter 893, the 900 Florida Comprehensive Drug Abuse Prevention and Control Act; 901 4. Being convicted or found guilty of, regardless of 902 adjudication to, a felony or any other crime involving moral 903 turpitude, fraud, dishonesty, or deceit in any jurisdiction of 904 the courts of this state, of any other state, or of the United 905 States; 906 5. Being convicted of, or disciplined by a regulatory 907 agency of the Federal Government or a regulatory agency of 908 another state for any offense that would constitute a violation 909 of this chapter; 910 6. Being convicted of, or entering a plea of guilty or nolo 911 contendere to, regardless of adjudication, a crime in any 912 jurisdiction of the courts of this state, of any other state, or 913 of the United States which relates to the practice of, or the 914 ability to practice, a licensed health care profession; 915 7. Being convicted of, or entering a plea of guilty or nolo 916 contendere to, regardless of adjudication, a crime in any 917 jurisdiction of the courts of this state, of any other state, or 918 of the United States which relates to health care fraud; 919 8. Dispensing any medicinal drug based upon a communication 920 that purports to be a prescription as defined in s. 465.003(14) 921 or s. 893.02 if the dispensing practitioner knows or has reason 922 to believe that the purported prescription is not based upon a 923 valid practitioner-patient relationship; or 924 9. Failing to timely notify the board of the date of his or 925 her termination from a pain-management clinic as required by s. 926 459.0137(2). 927 (rr) Failing to timely notify the department of the theft 928 of prescription blanks from a pain-management clinic or a breach 929 of other methods for prescribing within 24 hours as required by 930 s. 459.0137(2). 931 Section 11. Paragraph (j) is added to subsection (1), 932 paragraph (d) is added to subsection (2), and paragraph (f) is 933 added to subsection (7) of section 893.055, Florida Statutes, to 934 read: 935 893.055 Prescription drug monitoring program.— 936 (1) As used in this section, the term: 937 (j) “Program manager” means an employee of or a person 938 contracted by the Department of Health who is designated to 939 ensure the integrity of the prescription drug monitoring program 940 in accordance with the requirements established in paragraphs 941 (2)(a) and (b). 942 (2) 943 (d) The program manager shall work with professional health 944 care licensure boards and the stakeholders listed in paragraph 945 (b) to develop rules appropriate for identifying indicators of 946 controlled substance abuse. 947 (7) 948 (f) The program manager, upon determining a pattern 949 consistent with the rules established under paragraph (2)(c) and 950 having cause to believe a violation of s. 893.13(7)(a)8., 951 (8)(a), or (8)(b) has occurred, may provide relevant information 952 to the applicable law enforcement agency. 953 Section 12. Subsections (4), (5), and (6) of section 954 893.0551, Florida Statutes, are renumbered as subsections (5), 955 (6), and (7), respectively, and subsection (4) is added to that 956 section, to read: 957 893.0551 Public records exemption for the prescription drug 958 monitoring program.— 959 (4) The department shall disclose such confidential and 960 exempt information to the applicable law enforcement agency in 961 accordance with s. 893.055(7)(b)2. The law enforcement agency 962 may disclose the confidential and exempt information received 963 from the department to a criminal justice agency as defined in 964 s. 119.011 as part of an active investigation that is specific 965 to a violation of s. 893.13(7)(a)8., s. 893.13(8)(a), or s. 966 893.13(8)(b). 967 Section 13. This act shall take effect October 1, 2010.