Florida Senate - 2010 CS for SB 2722 By the Committee on Health Regulation; and Senators Gardiner, Aronberg, and Gelber 588-03762-10 20102722c1 1 A bill to be entitled 2 An act relating to pain management; amending s. 3 456.037, F.S.; providing that pain-management clinics 4 are business establishments that are required to be 5 registered with the Department of Health; 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; amending s. 456.071, 14 F.S.; providing for venue of judicial challenges to 15 any subpoena or order issued by the Department of 16 Health during its investigations; repealing s. 17 458.309(5), (6), and (7), F.S., relating to pain 18 management clinics; creating s. 458.3265, F.S.; 19 requiring all privately owned pain-management clinics, 20 or offices that primarily engage in the treatment of 21 pain by prescribing or dispensing controlled substance 22 medications or by employing a physician who is 23 primarily engaged in the treatment of pain by 24 prescribing or dispensing controlled substance 25 medications, to register with the Department of Health 26 by a specified date; providing exceptions; requiring 27 each location of a pain-management clinic to register 28 separately; requiring a clinic to designate a 29 physician who is responsible for complying with 30 requirements related to registration of the clinic; 31 requiring the department to deny registration or 32 revoke the registration of a pain-management clinic 33 for certain conditions; authorizing the department to 34 revoke a clinic’s certificate of registration and 35 prohibit physicians associated with the clinic from 36 practicing at the clinic’s office location; requiring 37 a pain-management clinic to cease operating if its 38 registration certificate is revoked or suspended; 39 requiring certain named persons to remove all signs 40 and symbols identifying the premises as a pain 41 management clinic; requiring a pain-management clinic 42 that has had its registration revoked or suspended to 43 advise the department of the disposition of the 44 medicinal drugs located on the premises; providing 45 that medicinal drugs that are purchased or held by a 46 pain–management clinic that is not registered may be 47 deemed adulterated; prohibiting any person acting as 48 an individual or as part of a group from applying for 49 a certificate to operate a pain-management clinic for 50 a certain period after the date the person’s 51 registration certificate is revoked; providing that a 52 change of ownership of a registered pain-management 53 clinic requires submission of a new registration 54 application; providing the responsibilities of a 55 physician who provides professional services at a 56 pain-management clinic; prohibiting certain 57 practitioners from dispensing a specified dosage of 58 certain controlled substances to patients who pay by 59 cash, check, or credit card; providing an exception; 60 providing a criminal penalty; providing for 61 nonapplication; requiring the department to inspect 62 pain-management clinics and its patient records; 63 requiring the department and the Board of Medicine to 64 adopt rules; authorizing the department to impose 65 fines, deny a clinic’s registration, or revoke a 66 clinic’s registration; amending s. 458.327, F.S.; 67 providing that the commission of certain specified 68 acts involving a nonregistered pain-management clinic 69 constitutes a felony of the third degree or a 70 misdemeanor of the first degree; amending s. 458.331, 71 F.S.; providing additional acts that constitute 72 grounds for disciplinary actions against health 73 professional licensees; repealing s. 459.005(3), (4), 74 and (5), F.S., relating to pain-management clinics; 75 creating s. 459.0137, F.S.; requiring all privately 76 owned pain-management clinics, or offices that 77 primarily engage in the treatment of pain by 78 prescribing or dispensing controlled substance 79 medications or by employing an osteopathic physician 80 who is primarily engaged in the treatment of pain by 81 prescribing or dispensing controlled substance 82 medications, to register with the department by a 83 specified date; providing exceptions; requiring each 84 location of a pain-management clinic to register 85 separately; requiring a clinic to designate an 86 osteopathic physician who is responsible for complying 87 with requirements related to registration of the 88 clinic; requiring the department to deny registration 89 or revoke the registration of a pain-management clinic 90 for certain conditions; authorizing the department to 91 revoke a clinic’s certificate of registration and 92 prohibit osteopathic physicians associated with the 93 clinic from practicing at the clinic’s office 94 location; requiring a pain-management clinic to cease 95 operating if its registration certificate is revoked 96 or suspended; requiring certain named persons to 97 remove all signs and symbols identifying the premises 98 as a pain-management clinic; requiring a pain 99 management clinic that has had its registration 100 revoked or suspended to advise the department of the 101 disposition of the medicinal drugs located on the 102 premises; providing that medicinal drugs that are 103 purchased or held by a pain–management clinic that is 104 not registered may be deemed adulterated; prohibiting 105 any person acting as an individual or as part of a 106 group from applying for a certificate to operate a 107 pain-management clinic for a certain period after the 108 date the person’s registration certificate is revoked; 109 providing that a change of ownership of a registered 110 pain-management clinic requires submission of a new 111 registration application; providing the 112 responsibilities of an osteopathic physician who 113 provides professional services at a pain-management 114 clinic; prohibiting certain practitioners from 115 dispensing a specified dosage of certain controlled 116 substances to patients who pay by cash, check, or 117 credit card; providing an exception; providing a 118 criminal penalty; providing for nonapplication; 119 requiring the department to inspect pain-management 120 clinics and its patient records; requiring the 121 department and the Board of Osteopathic Medicine to 122 adopt rules; authorizing the department to impose 123 fines, deny a clinic’s registration, or revoke a 124 clinic’s registration; amending s. 459.013, F.S.; 125 providing that the commission of certain specified 126 acts involving a nonregistered pain-management clinic 127 constitutes a felony of the third degree or a 128 misdemeanor of the first degree; amending s. 459.015, 129 F.S.; providing additional acts that constitute 130 grounds for disciplinary actions against health 131 professional licensees; 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. Section 456.071, Florida Statutes, is amended to 216 read: 217 456.071 Power to administer oaths, take depositions, and 218 issue subpoenas.—For the purpose of any investigation or 219 proceeding conducted by the department, the department shall 220 have the power to administer oaths, take depositions, make 221 inspections when authorized by statute, issue subpoenas which 222 shall be supported by affidavit, serve subpoenas and other 223 process, and compel the attendance of witnesses and the 224 production of books, papers, documents, and other evidence. The 225 department shall exercise this power on its own initiative or 226 whenever requested by a board or the probable cause panel of any 227 board. Challenges to, and enforcement of, the subpoenas and 228 orders shall be handled as provided in s. 120.569, except that 229 venue is in the Circuit Court for the Second Judicial Circuit, 230 in the county where the examination, investigation, or hearing 231 is conducted, or in the county in which the person resides. 232 Section 4. Subsections (4), (5), and (6) of section 233 458.309, Florida Statutes, are repealed. 234 Section 5. Section 458.3265, Florida Statutes, is created 235 to read: 236 458.3265 Pain-management clinics.— 237 (1) REGISTRATION.— 238 (a) Effective January 4, 2010, all privately owned pain 239 management clinics, facilities, or offices, hereinafter referred 240 to as “clinics,” which advertise in any medium for any type of 241 pain-management services, or employ a physician who is primarily 242 engaged in the treatment of pain by prescribing or dispensing 243 controlled substance medications, must register with the 244 department unless: 245 1. That clinic is licensed as a facility pursuant to 246 chapter 395; 247 2. The majority of the physicians who provide services in 248 the clinic, facility, or office primarily provide surgical 249 services; 250 3. The clinic, facility, or office is owned by a publicly 251 held corporation whose shares are traded on a national exchange 252 or on the over-the-counter market and whose total assets at the 253 end of corporation’s most recent fiscal quarter exceeded $50 254 million; 255 4. The clinic, facility, or office is affiliated with an 256 accredited medical school at which training is provided for 257 medical students, residents, or fellows; 258 5. The clinic does not prescribe or dispense controlled 259 substances for the treatment of pain; or 260 6. The clinic, facility, or office is owned by a corporate 261 entity exempt from federal taxation under 26 U.S.C. s. 262 501(c)(3). 263 (b) Each clinic location shall be registered separately 264 regardless of whether the clinic is operated under the same 265 business name or management as another clinic. 266 (c) As a part of registration, a clinic must designate a 267 physician who is responsible for complying with all requirements 268 related to registration of the clinic. The designated physician 269 shall have a full, active, and unencumbered license under this 270 chapter or chapter 459 and shall practice at the office location 271 for which the physician has assumed responsibility. 272 (d) The department shall deny registration to any clinic 273 not fully owned by a physician licensed under this chapter or 274 chapter 459 or a group of physicians licensed under this chapter 275 or chapter 459. 276 (e) The department shall deny registration to any pain 277 management clinic owned by or with any contractual or employment 278 relationship with a physician: 279 1. Whose Drug Enforcement Administration number has ever 280 been revoked. 281 2. Whose application for a license to prescribe, dispense, 282 or administer a controlled substance has been denied by any 283 jurisdiction. 284 3. Who has been convicted of or plead guilty or nolo 285 contender to, regardless of adjudication, an offense that 286 constitutes a felony for receipt of illicit and diverted drugs, 287 including a controlled substance listed in Schedule I, Schedule 288 II, Schedule III, Schedule IV, or Schedule V of s. 893.03, in 289 this state, any other state, or the United States. 290 (f) If the department finds that a pain-management clinic 291 is owned, directly or indirectly, by a person meeting any 292 criteria listed in paragraph (d) or paragraph (e), the 293 department shall revoke the certificate of registration 294 previously issued by the department. As determined by rule, the 295 department may grant an exemption to denying a registration or 296 revoking a previously issued registration if more than 10 years 297 have elapsed since adjudication. As used in this subsection, the 298 term “convicted” includes an adjudication of guilt following a 299 plea of guilty or nolo contendere or the forfeiture of a bond 300 when charged with a crime. 301 (g) The department may revoke the clinic’s certificate of 302 registration and prohibit all physicians associated with that 303 pain-management clinic from practicing at that office location 304 based upon an annual inspection and evaluation of the factors 305 described in subsection (3). 306 (h) If the registration of a pain-management clinic is 307 revoked or suspended, the designated physician of the pain 308 management clinic, the owner or lessor of the pain-management 309 clinic property, the manager, and the proprietor shall cease to 310 operate the facility as a pain-management clinic as of the 311 effective date of the suspension or revocation. 312 (i) If a pain-management clinic registration is revoked or 313 suspended, the designated physician of the pain-management 314 clinic, the owner or lessor of the clinic property, the manager, 315 or the proprietor is responsible for removing all signs and 316 symbols identifying the premises as a pain-management clinic. 317 (j) Upon the effective date of the suspension or 318 revocation, the designated physician of the pain-management 319 clinic shall advise the department of the disposition of the 320 medicinal drugs located on the premises. The disposition is 321 subject to the supervision and approval of the department. 322 Medicinal drugs that are purchased or held by a pain–management 323 clinic that is not registered may be deemed adulterated pursuant 324 to s. 499.006. 325 (k) If the clinic’s registration is revoked, any person 326 named in the registration documents of the pain-management 327 clinic, including persons owning or operating the pain 328 management clinic, may not, as an individual or as a part of a 329 group, apply to operate a pain-management clinic for 5 years 330 after the date the registration is revoked. 331 (l) The period of the suspension shall be prescribed by the 332 department, but may not exceed 1 year. 333 (m) A change of ownership of a registered pain-management 334 clinic requires submission of a new registration application. 335 (2) PHYSICIAN RESPONSIBILITIES.—These responsibilities 336 apply to any physician who provides professional services in a 337 pain-management clinic that is required to be registered in 338 subsection (1). 339 (a) A physician may not practice medicine in a pain 340 management clinic, as described in subsection (4), if the pain 341 management clinic is not registered with the department as 342 required by this section. A physician who violates this 343 paragraph is subject to review by his or her appropriate medical 344 regulatory board. 345 (b) A person may not dispense any medication, including a 346 controlled substance, on the premises of a registered pain 347 management clinic unless he or she is a physician licensed under 348 this chapter or chapter 459. 349 (c) After a physical examination of the patient, a 350 physician, on the same day of dispensing or prescribing a 351 controlled substance, must document in the patient’s record the 352 reason for prescribing or dispensing more than a 72-hour dose of 353 a controlled substance for the treatment of chronic nonmalignant 354 pain. 355 (d) A physician authorized to prescribe controlled 356 substances who practices at a pain-management clinic is 357 responsible for maintaining the control and security of his or 358 her prescription blanks and any other method used for 359 prescribing controlled substance pain medication. The physician 360 shall comply with the requirements for counterfeit-resistant 361 prescription blanks in s. 893.065 and the rules adopted pursuant 362 to that section. The physician shall notify in writing the 363 department within 24 hours following any theft or loss of a 364 prescription blank or breach of any other method for prescribing 365 pain medication. 366 (e) The physician shall notify the applicable board in 367 writing of the date of termination of employment within 10 days 368 after terminating his or her employment with a pain-management 369 clinic that is required to be registered under subsection (1). 370 (f) A practitioner registered under s. 465.0276 who 371 practices at a pain-management clinic that is required to be 372 registered under this section or s. 459.0137, may not dispense 373 more than a 72-hour supply of a controlled substance listed in 374 Schedule II or Schedule III, as provided in s. 893.03, to 375 patients who pay by cash, check, or credit card for such 376 medications. This limitation does not apply to patients who have 377 insurance coverage for the medications and are using cash, 378 check, or a credit card to meet a required copayment or 379 deductible. A practitioner who knowingly violates this paragraph 380 commits a felony of the third degree, punishable as provided in 381 s. 775.082, s. 775.083, or s. 775.084. This paragraph does not 382 apply to practitioners who dispense medications to 383 workers’compensation patients pursuant to chapter 440. This 384 paragraph does not apply to the dispensing of complimentary 385 packages of medicinal drugs to the practitioner’s own patients 386 in the regular course of his or her practice without the payment 387 of fee or remuneration of any kind, whether direct or indirect, 388 and in conformity with the requirements of this subsection. This 389 paragraph does not apply to controlled substances dispensed in 390 the health care system of the Department of Corrections. 391 (3) INSPECTION.— 392 (a) The department shall inspect the clinic annually, 393 including a review of the patient records, to ensure that it 394 complies with this section and the rules of the Board of 395 Medicine adopted pursuant to subsection (4) unless the office is 396 accredited by a nationally recognized accrediting agency 397 approved by the Board of Medicine. 398 (b) During an onsite inspection, the department shall make 399 a reasonable attempt to discuss each violation with the owner or 400 designated physician of the pain-management clinic before 401 issuing a formal written notification. 402 (c) Any action taken to correct a violation shall be 403 documented in writing by the owner or designated physician of 404 the pain-management clinic and verified by followup visits by 405 departmental personnel. 406 (4) RULEMAKING.— 407 (a) The department shall adopt rules necessary to 408 administer the registration and inspection of pain-management 409 clinics which establish the specific requirements, procedures, 410 forms, and fees. 411 (b) The department shall adopt a rule defining what 412 constitutes practice by a designated physician at the office 413 location for which the physician has assumed responsibility, as 414 set forth in subsection (1). When adopting the rule, the 415 department shall consider the number of clinic employees, the 416 location of the pain-management clinic, its hours of operation, 417 and the amount of controlled substances being prescribed, 418 dispensed, or administered at the pain-management clinic. 419 (c) The Board of Medicine a shall adopt a rule establishing 420 the maximum number of prescriptions for Schedule II or Schedule 421 III controlled substances which may be written at any one 422 registered pain-management clinic during any 24-hour period. 423 (d) The Board of Medicine shall adopt rules setting forth 424 standards of practice for physicians practicing in privately 425 owned pain-management clinics that primarily engage in the 426 treatment of pain by prescribing or dispensing controlled 427 substance medications. Such rules shall address, but need not be 428 limited to: 429 1. Facility operations; 430 2. Physical operations; 431 3. Infection control requirements; 432 4. Health and safety requirements; 433 5. Quality assurance requirements; 434 6. Patient records; 435 7. Training requirements for all facility health care 436 practitioners who are not regulated by another board; 437 8. Inspections; and 438 9. Data collection and reporting requirements. 439 440 A physician is primarily engaged in the treatment of pain by 441 prescribing or dispensing controlled substance medications when 442 the majority of the patients seen are prescribed or dispensed 443 controlled substance medications for the treatment of chronic 444 nonmalignant pain. Chronic nonmalignant pain is pain unrelated 445 to cancer which persists beyond the usual course of the disease 446 or the injury that is the cause of the pain or more than 90 days 447 after surgery. 448 (5) PENALTIES; ENFORCEMENT.— 449 (a) The department may impose an administrative fine on the 450 clinic of up to $5,000 per violation for violating the 451 requirements of this section, chapter 499, the Florida Drug and 452 Cosmetic Act; 21 U.S.C. ss. 301-392, the Federal Food, Drug, and 453 Cosmetic Act; 21 U.S.C. ss. 821 et seq., the Comprehensive Drug 454 Abuse Prevention and Control Act; chapter 893, the Florida 455 Comprehensive Drug Abuse Prevention and Control Act; or the 456 rules of the department. In determining whether a penalty is to 457 be imposed, and in fixing the amount of the fine, the department 458 shall consider the following factors: 459 1. The gravity of the violation, including the probability 460 that death or serious physical or emotional harm to a patient 461 has resulted, or could have resulted, from the pain-management 462 clinic’s actions, the severity of the action or potential harm, 463 and the extent to which the provisions of the applicable laws or 464 rules were violated. 465 2. What actions, if any, the owner or designated physician 466 took to correct the violations. 467 3. Whether there were any previous violations at the pain 468 management clinic. 469 4. The financial benefits that the pain-management clinic 470 derived from committing or continuing to commit the violation. 471 (b) Each day a violation continues after the date fixed for 472 termination as ordered by the department constitutes an 473 additional, separate, and distinct violation. 474 (c) The department may impose a fine and, in the case of an 475 owner-operated pain-management clinic revoke or deny a clinic’s 476 registration, if the clinic’s designated physician knowingly and 477 intentionally misrepresents actions taken to correct a 478 violation. 479 (d) An owner or designated physician of a pain-management 480 clinic who concurrently operates an unregistered pain-management 481 clinic is subject to an administrative fine of $5,000 per day. 482 (e) If the owner of a pain-management clinic fails to apply 483 to register the clinic upon a change-of-ownership and operates 484 the clinic under the new ownership, the owner is subject to a 485 fine of $5,000. 486 Section 6. Section 458.327, Florida Statutes, is amended to 487 read: 488 458.327 Penalty for violations.— 489 (1) Each of the following acts constitutes a felony of the 490 third degree, punishable as provided in s. 775.082, s. 775.083, 491 or s. 775.084: 492 (a) The practice of medicine or an attempt to practice 493 medicine without a license to practice in Florida. 494 (b) The use or attempted use of a license which is 495 suspended or revoked to practice medicine. 496 (c) Attempting to obtain or obtaining a license to practice 497 medicine by knowing misrepresentation. 498 (d) Attempting to obtain or obtaining a position as a 499 medical practitioner or medical resident in a clinic or hospital 500 through knowing misrepresentation of education, training, or 501 experience. 502 (e) Knowingly operating, owning, or managing a 503 nonregistered pain-management clinic that is required to be 504 registered with the Department of Health pursuant to s. 505 458.3265(1). 506 (2) Each of the following acts constitutes a misdemeanor of 507 the first degree, punishable as provided in s. 775.082 or s. 508 775.083: 509 (a) Knowingly concealing information relating to violations 510 of this chapter. 511 (b) Making any willfully false oath or affirmation whenever 512 an oath or affirmation is required by this chapter. 513 (c) Referring any patient, for health care goods or 514 services, to a partnership, firm, corporation, or other business 515 entity in which the physician or the physician’s employer has an 516 equity interest of 10 percent or more unless, prior to such 517 referral, the physician notifies the patient of his or her 518 financial interest and of the patient’s right to obtain such 519 goods or services at the location of the patient’s choice. This 520 section does not apply to the following types of equity 521 interest: 522 1. The ownership of registered securities issued by a 523 publicly held corporation or the ownership of securities issued 524 by a publicly held corporation, the shares of which are traded 525 on a national exchange or the over-the-counter market; 526 2. A physician’s own practice, whether he or she is a sole 527 practitioner or part of a group, when the health care good or 528 service is prescribed or provided solely for the physician’s own 529 patients and is provided or performed by the physician or under 530 the physician’s supervision; or 531 3. An interest in real property resulting in a landlord 532 tenant relationship between the physician and the entity in 533 which the equity interest is held, unless the rent is 534 determined, in whole or in part, by the business volume or 535 profitability of the tenant or is otherwise unrelated to fair 536 market value. 537 (d) Leading the public to believe that one is licensed as a 538 medical doctor, or is engaged in the licensed practice of 539 medicine, without holding a valid, active license. 540 (e) Practicing medicine or attempting to practice medicine 541 with an inactive or delinquent license. 542 (f) Knowingly prescribing or dispensing, or causing to be 543 prescribed or dispensed, controlled substances in a 544 nonregistered pain-management clinic that is required to be 545 registered with the Department of Health pursuant to s. 546 458.3265(1). 547 Section 7. Paragraphs (oo), (pp), and (qq) are added to 548 subsection (1) of section 458.331, Florida Statutes, to read: 549 458.331 Grounds for disciplinary action; action by the 550 board and department.— 551 (1) The following acts constitute grounds for denial of a 552 license or disciplinary action, as specified in s. 456.072(2): 553 (oo) Applicable to a licensee who serves as the designated 554 physician of a pain-management clinic as defined in s. 458.3265 555 or s. 459.0137: 556 1. Registering a pain-management clinic through 557 misrepresentation or fraud; 558 2. Procuring, or attempting to procure, the registration of 559 a pain-management clinic for any other person by making or 560 causing to be made, any false representation; 561 3. Failing to comply with any requirement of chapter 499, 562 the Florida Drug and Cosmetic Act; 21 U.S.C. ss. 301-392, the 563 Federal Food, Drug, and Cosmetic Act; 21 U.S.C. ss. 821 et seq., 564 the Drug Abuse Prevention and Control Act; or chapter 893, the 565 Florida Comprehensive Drug Abuse Prevention and Control Act; 566 4. Being convicted or found guilty of, regardless of 567 adjudication to, a felony or any other crime involving moral 568 turpitude, fraud, dishonesty, or deceit in any jurisdiction of 569 the courts of this state, of any other state, or of the United 570 States; 571 5. Being convicted of, or disciplined by a regulatory 572 agency of the Federal Government or a regulatory agency of 573 another state for any offense that would constitute a violation 574 of this chapter; 575 6. Being convicted of, or entering a plea of guilty or nolo 576 contendere to, regardless of adjudication, a crime in any 577 jurisdiction which relates to the practice of, or the ability to 578 practice, a licensed health care profession; 579 7. Being convicted of, or entering a plea of guilty or nolo 580 contendere to, regardless of adjudication, a crime in any 581 jurisdiction which relates to health care fraud; 582 8. Dispensing any medicinal drug based upon a communication 583 that purports to be a prescription as defined in s. 465.003(14) 584 or s. 893.02 if the dispensing practitioner knows or has reason 585 to believe that the purported prescription is not based upon a 586 valid practitioner-patient relationship; or 587 9. Failing to have a licensed designated physician 588 practicing at the location of the registered clinic. A violation 589 of this paragraph may be the basis for a summary suspension as 590 described in s. 456.073(8) or s. 120.60(6). 591 (pp) Failing to timely notify the department of the theft 592 of prescription blanks from a pain-management clinic or a breach 593 of other methods for prescribing within 24 hours as required by 594 s. 458.3265(2). 595 (qq) Failing to timely notify the applicable board 596 governing his or her prescribing privileges of the date of his 597 or her termination from a pain-management clinic as required by 598 s. 458.3265(2). 599 Section 8. Subsections (3), (4), and (5) of section 600 459.005, Florida Statutes, are repealed. 601 Section 9. Section 459.0137, Florida Statutes, is created 602 to read: 603 459.0137 Pain-management clinics.— 604 (1) REGISTRATION.— 605 (a) Effective January 4, 2010, all privately owned pain 606 management clinics, facilities, or offices, hereinafter referred 607 to as “clinics,” which advertise in any medium for any type of 608 pain-management services, or employ an osteopathic physician who 609 is primarily engaged in the treatment of pain by prescribing or 610 dispensing controlled substance medications, must register with 611 the department unless: 612 1. That clinic is licensed as a facility pursuant to 613 chapter 395; 614 2. The majority of the physicians who provide services in 615 the clinic, facility, or office primarily provide surgical 616 services; 617 3. The clinic, facility, or office is owned by a publicly 618 held corporation whose shares are traded on a national exchange 619 or on the over-the-counter market and whose total assets at the 620 end of corporation’s most recent fiscal quarter exceeded $50 621 million; 622 4. The clinic, facility, or office is affiliated with an 623 accredited medical school at which training is provided for 624 medical students, residents, or fellows; 625 5. The clinic does not prescribe or dispense controlled 626 substances for the treatment of pain; or 627 6. The clinic, facility, or office is owned by a corporate 628 entity exempt from federal taxation under 26 U.S.C. s. 629 501(c)(3). 630 (b) Each clinic location shall be registered separately 631 regardless of whether the clinic is operated under the same 632 business name or management as another clinic. 633 (c) As a part of registration, a clinic must designate an 634 osteopathic physician who is responsible for complying with all 635 requirements related to registration of the clinic. The 636 designated physician shall have a full, active, and unencumbered 637 license under chapter 458 or this chapter and shall practice at 638 the office location for which the physician has assumed 639 responsibility. 640 (d) The department shall deny registration to any clinic 641 not fully owned by a physician licensed under chapter 458 or 642 this chapter or a group of physicians under to chapter 458 or 643 this chapter. 644 (e) The department shall deny registration to any pain 645 management clinic owned by or with any contractual or employment 646 relationship with a physician: 647 1. Whose Drug Enforcement Administration number has ever 648 been revoked. 649 2. Whose application for a license to prescribe, dispense, 650 or administer a controlled substance has been denied by any 651 jurisdiction. 652 3. Who has been convicted of or plead guilty or nolo 653 contender to, regardless of adjudication, an offense that 654 constitutes a felony for receipt of illicit and diverted drugs, 655 including a controlled substance listed in Schedule I, Schedule 656 II, Schedule III, Schedule IV, or Schedule V of s. 893.03, in 657 this state, any other state, or the United States. 658 (f) If the department finds that a pain-management clinic 659 is owned, directly or indirectly, by a person meeting any 660 criteria listed in paragraph (d) or paragraph (e), the 661 department shall revoke the certificate of registration 662 previously issued by the department. As determined by rule, the 663 department may grant an exemption to denying a registration or 664 revoking a previously issued registration if more than 10 years 665 have elapsed since adjudication. As used in this subsection, the 666 term “convicted” includes an adjudication of guilt following a 667 plea of guilty or nolo contendere or the forfeiture of a bond 668 when charged with a crime. 669 (g) The department may revoke the clinic’s certificate of 670 registration and prohibit all physicians associated with that 671 pain-management clinic from practicing at that office location 672 based upon an annual inspection and evaluation of the factors 673 described in subsection (3). 674 (h) If the registration of a pain-management clinic is 675 revoked or suspended, the designated physician of the pain 676 management clinic, the owner or lessor of the pain-management 677 clinic property, the manager, and the proprietor shall cease to 678 operate the facility as a pain-management clinic as of the 679 effective date of the suspension or revocation. 680 (i) If a pain-management clinic registration is revoked or 681 suspended, the designated physician of the pain-management 682 clinic, the owner or lessor of the clinic property, the manager, 683 or the proprietor is responsible for removing all signs and 684 symbols identifying the premises as a pain-management clinic. 685 (j) Upon the effective date of the suspension or 686 revocation, the designated physician of the pain-management 687 clinic shall advise the department of the disposition of the 688 medicinal drugs located on the premises. The disposition is 689 subject to the supervision and approval of the department. 690 Medicinal drugs that are purchased or held by a pain–management 691 clinic that is not registered may be deemed adulterated pursuant 692 to s. 499.006. 693 (k) If the clinic’s registration is revoked, any person 694 named in the registration documents of the pain-management 695 clinic, including persons owning or operating the pain 696 management clinic, may not as an individual or as a part of a 697 group, make application for a permit to operate a pain 698 management clinic for 5 years after the date the registration is 699 revoked. 700 (l) The period of the suspension shall be prescribed by the 701 department, but may not exceed 1 year. 702 (m) A change of ownership of a registered pain-management 703 clinic requires submission of a new registration application. 704 (2) PHYSICIAN RESPONSIBILITIES.—These responsibilities 705 apply to any osteopathic physician who provides professional 706 services in a pain-management clinic that is required to be 707 registered in subsection (1). 708 (a) An osteopathic physician may not practice medicine in a 709 pain-management clinic, as described in subsection (4), if the 710 pain-management clinic is not registered with the department as 711 required by this section. An osteopathic physician who violates 712 this paragraph is subject to review by his or her appropriate 713 medical regulatory board. 714 (b) A person may not dispense any medication, including a 715 controlled substance, on the premises of a registered pain 716 management clinic unless he or she is a physician licensed under 717 this chapter or chapter 458. 718 (c) After a physical examination of the patient, an 719 osteopathic physician, on the same day of dispensing or 720 prescribing a controlled substance, must document in the 721 patient’s record the reason for prescribing or dispensing more 722 than a 72-hour dose of a controlled substance for the treatment 723 of chronic nonmalignant pain. 724 (d) An osteopathic physician authorized to prescribe 725 controlled substances who practices at a pain-management clinic 726 is responsible for maintaining the control and security of his 727 or her prescription blanks and any other method used for 728 prescribing controlled substance pain medication. The 729 osteopathic physician shall comply with the requirements for 730 counterfeit-resistant prescription blanks in s. 893.065 and the 731 rules adopted pursuant to that section. The osteopathic 732 physician shall notify in writing the department within 24 hours 733 following any theft or loss of a prescription blank or breach of 734 any other method for prescribing pain medication. 735 (e) The osteopathic physician shall notify the applicable 736 board in writing of the date of termination of employment within 737 10 days after terminating his or her employment with a pain 738 management clinic that is required to be registered under 739 subsection (1). 740 (f) An osteopathic practitioner registered under s. 741 465.0276 who practices at a pain-management clinic that is 742 required to be registered under s. 458.3265 or this section may 743 not dispense more than a 72-hour supply of a controlled 744 substance listed in Schedule II or Schedule III, as provided in 745 s. 893.03, to patients who pay by cash, check, or credit card 746 for such medications. This limitation does not apply to patients 747 who have insurance coverage for the medications and are using 748 cash, check, or a credit card to meet a required copayment or 749 deductible. A practitioner who knowingly violates this provision 750 commits a felony of the third degree, punishable as provided in 751 s. 775.082, s. 775.083, or s. 775.084. This paragraph does not 752 apply to practitioners who dispense medications to 753 workers’compensation patients pursuant to chapter 440. This 754 paragraph does not apply to the dispensing of complimentary 755 packages of medicinal drugs to the practitioner’s own patients 756 in the regular course of his or her practice, without the 757 payment of fee or remuneration of any kind, whether direct or 758 indirect, and in conformity with the requirements of this 759 subsection. This paragraph does not apply to controlled 760 substances dispensed in the health care system of the Department 761 of Corrections. 762 (3) INSPECTION.— 763 (a) The department shall inspect the clinic annually, 764 including a review of the patient records, to ensure that it 765 complies with this section and the rules of the Board of 766 Osteopathic Medicine adopted pursuant to subsection (4) unless 767 the office is accredited by a nationally recognized accrediting 768 agency approved by the Board of Osteopathic Medicine. 769 (b) During an onsite inspection, the department shall make 770 a reasonable attempt to discuss each violation with the owner or 771 designated physician of the pain-management clinic before 772 issuing a formal written notification. 773 (c) Any action taken to correct a violation shall be 774 documented in writing by the owner or designated physician of 775 the pain-management clinic and verified by followup visits by 776 departmental personnel. 777 (4) RULEMAKING.— 778 (a) The department shall adopt rules necessary to 779 administer the registration and inspection of pain-management 780 clinics which establish the specific requirements, procedures, 781 forms, and fees. 782 (b) The department shall adopt a rule defining what 783 constitutes practice by a designated physician at the office 784 location for which the physician has assumed responsibility, as 785 set forth in subsection (1). When adopting the rule, the 786 department shall consider the number of clinic employees, the 787 location of the pain-management clinic, its hours of operation, 788 and the amount of controlled substances being prescribed, 789 dispensed, or administered at the pain-management clinic. 790 (c) The Board of Osteopathic Medicine a shall adopt a rule 791 establishing the maximum number of prescriptions for Schedule II 792 or Schedule III controlled substances which may be written at 793 any one registered pain-management clinic during any 24-hour 794 period. 795 (d) The Board of Osteopathic Medicine shall adopt rules 796 setting forth standards of practice for osteopathic physicians 797 practicing in privately owned pain-management clinics that 798 primarily engage in the treatment of pain by prescribing or 799 dispensing controlled substance medications. Such rules shall 800 address, but need not be limited to: 801 1. Facility operations; 802 2. Physical operations; 803 3. Infection control requirements; 804 4. Health and safety requirements; 805 5. Quality assurance requirements; 806 6. Patient records; 807 7. Training requirements for all facility health care 808 practitioners who are not regulated by another board; 809 8. Inspections; and 810 9. Data collection and reporting requirements. 811 812 An osteopathic physician is primarily engaged in the treatment 813 of pain by prescribing or dispensing controlled substance 814 medications when the majority of the patients seen are 815 prescribed or dispensed controlled substance medications for the 816 treatment of chronic nonmalignant pain. Chronic nonmalignant 817 pain is pain unrelated to cancer which persists beyond the usual 818 course of the disease or the injury that is the cause of the 819 pain or more than 90 days after surgery. 820 (5) PENALTIES; ENFORCEMENT.— 821 (a) The department may impose an administrative fine on the 822 clinic of up to $5,000 per violation for violating the 823 requirements of this section, chapter 499, the Florida Drug and 824 Cosmetic Act; 21 U.S.C. ss. 301-392, the Federal Food, Drug, and 825 Cosmetic Act; 21 U.S.C. ss. 821 et seq., the Comprehensive Drug 826 Abuse Prevention and Control Act; chapter 893, the Florida 827 Comprehensive Drug Abuse Prevention and Control Act; or the 828 rules of the department. In determining whether a penalty is to 829 be imposed, and in fixing the amount of the fine, the department 830 shall consider the following factors: 831 1. The gravity of the violation, including the probability 832 that death or serious physical or emotional harm to a patient 833 has resulted, or could have resulted, from the pain-management 834 clinic’s actions, the severity of the action or potential harm, 835 and the extent to which the provisions of the applicable laws or 836 rules were violated. 837 2. What actions, if any, the owner or designated physician 838 took to correct the violations. 839 3. Whether there were any previous violations at the pain 840 management clinic. 841 4. The financial benefits that the pain-management clinic 842 derived from committing or continuing to commit the violation. 843 (b) Each day a violation continues after the date fixed for 844 termination as ordered by the department constitutes an 845 additional, separate, and distinct violation. 846 (c) The department may impose a fine and, in the case of an 847 owner-operated pain-management clinic revoke or deny a clinic’s 848 registration, if the clinic’s designated physician knowingly and 849 intentionally misrepresents actions taken to correct a 850 violation. 851 (d) An owner or designated physician of a pain-management 852 clinic who concurrently operates an unregistered pain-management 853 clinic is subject to an administrative fine of $5,000 per day. 854 (e) If the owner of a pain-management clinic fails to apply 855 to register the clinic upon a change-of-ownership and operates 856 the clinic under the new ownership, the owner is subject to a 857 fine of $5,000. 858 Section 10. Subsections (1) and (2) of section 459.013, 859 Florida Statutes, are amended to read: 860 459.013 Penalty for violations.— 861 (1) Each of the following acts constitutes a felony of the 862 third degree, punishable as provided in s. 775.082, s. 775.083, 863 or s. 775.084: 864 (a) The practice of osteopathic medicine, or an attempt to 865 practice osteopathic medicine, without an active license or 866 certificate issued pursuant to this chapter. 867 (b) The practice of osteopathic medicine by a person 868 holding a limited license, osteopathic faculty certificate, or 869 other certificate issued under this chapter beyond the scope of 870 practice authorized for such licensee or certificateholder. 871 (c) Attempting to obtain or obtaining a license to practice 872 osteopathic medicine by knowing misrepresentation. 873 (d) Attempting to obtain or obtaining a position as an 874 osteopathic medical practitioner or osteopathic medical resident 875 in a clinic or hospital through knowing misrepresentation of 876 education, training, or experience. 877 (e) Knowingly operating, owning, or managing a 878 nonregistered pain-management clinic that is required to be 879 registered with the Department of Health pursuant to s. 880 459.0137(1). 881 (2) Each of the following acts constitutes a misdemeanor of 882 the first degree, punishable as provided in s. 775.082 or s. 883 775.083: 884 (a) Knowingly concealing information relating to violations 885 of this chapter. 886 (b) Making any willfully false oath or affirmation whenever 887 an oath or affirmation is required by this chapter. 888 (c) The practice of medicine as a resident or intern 889 without holding a valid current registration pursuant to s. 890 459.021. 891 (d) Knowingly prescribing or dispensing, or causing to be 892 prescribed or dispensed, controlled substances in a 893 nonregistered pain-management clinic that is required to be 894 registered with the Department of Health pursuant to s. 895 459.0137(1). 896 Section 11. Paragraphs (qq), (rr), and (ss) are added to 897 subsection (1) of section 459.015, Florida Statutes, to read: 898 459.015 Grounds for disciplinary action; action by the 899 board and department.— 900 (1) The following acts constitute grounds for denial of a 901 license or disciplinary action, as specified in s. 456.072(2): 902 (qq) Applicable to a licensee who serves as the designated 903 physician of a pain-management clinic as defined in s. 458.3265 904 or s. 459.0137: 905 1. Registering a pain-management clinic through 906 misrepresentation or fraud; 907 2. Procuring, or attempting to procure, the registration of 908 a pain-management clinic for any other person by making or 909 causing to be made, any false representation; 910 3. Failing to comply with any requirement of chapter 499, 911 the Florida Drug and Cosmetic Act; 21 U.S.C. ss. 301-392, the 912 Federal Food, Drug, and Cosmetic Act; 21 U.S.C. ss. 821 et seq., 913 the Drug Abuse Prevention and Control Act; or chapter 893, the 914 Florida Comprehensive Drug Abuse Prevention and Control Act; 915 4. Being convicted or found guilty of, regardless of 916 adjudication to, a felony or any other crime involving moral 917 turpitude, fraud, dishonesty, or deceit in any jurisdiction of 918 the courts of this state, of any other state, or of the United 919 States; 920 5. Being convicted of, or disciplined by a regulatory 921 agency of the Federal Government or a regulatory agency of 922 another state for any offense that would constitute a violation 923 of this chapter; 924 6. Being convicted of, or entering a plea of guilty or nolo 925 contendere to, regardless of adjudication, a crime in any 926 jurisdiction which relates to the practice of, or the ability to 927 practice, a licensed health care profession; 928 7. Being convicted of, or entering a plea of guilty or nolo 929 contendere to, regardless of adjudication, a crime in any 930 jurisdiction which relates to health care fraud; 931 8. Dispensing any medicinal drug based upon a communication 932 that purports to be a prescription as defined in s. 465.003(14) 933 or s. 893.02 if the dispensing practitioner knows or has reason 934 to believe that the purported prescription is not based upon a 935 valid practitioner-patient relationship; or 936 9. Failing to have a licensed designated physician 937 practicing at the location of the registered clinic. A violation 938 of this paragraph may be the basis for a summary suspension as 939 described in s. 456.073(8) or s. 120.60(6). 940 (rr) Failing to timely notify the department of the theft 941 of prescription blanks from a pain-management clinic or a breach 942 of other methods for prescribing within 24 hours as required by 943 s. 459.0137(2). 944 (ss) Failing to timely notify the applicable board 945 governing his or her prescribing privileges of the date of his 946 or her termination from a pain-management clinic as required by 947 s. 459.0137(2). 948 Section 12. This act shall take effect October 1, 2010.