Florida Senate - 2017 COMMITTEE AMENDMENT
Bill No. SB 876
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LEGISLATIVE ACTION
Senate . House
Comm: RCS .
03/14/2017 .
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The Committee on Health Policy (Young) recommended the
following:
1 Senate Substitute for Amendment (420676) (with title
2 amendment)
3
4 Delete lines 88 - 492
5 and insert:
6 (e) “Impairment” means a potentially impairing health
7 condition that is the result of the misuse or abuse of alcohol,
8 drugs, or both, or a mental or physical condition that could
9 affect a practitioner’s ability to practice with skill and
10 safety.
11 (f) “Inability to progress” means a determination by a
12 consultant based on a participant’s response to treatment and
13 prognosis that the participant is unable to safely practice
14 despite compliance with treatment requirements and his or her
15 participant contract.
16 (g) “Material noncompliance” means an act or omission by a
17 participant in violation of his or her participant contract as
18 determined by the department or consultant.
19 (h) “Participant” means a practitioner who is participating
20 in the impaired practitioner program by having entered into a
21 participant contract. A practitioner ceases to be a participant
22 when the participant contract is successfully completed or is
23 terminated for any reason.
24 (i) “Participant contract” means a formal written document
25 outlining the requirements established by a consultant for a
26 participant to successfully complete the impaired practitioner
27 program, including the participant’s monitoring plan.
28 (j) “Practitioner” means a person licensed, registered,
29 certified, or regulated by the department under part III of
30 chapter 401; chapter 457; chapter 458; chapter 459; chapter 460;
31 chapter 461; chapter 462; chapter 463; chapter 464; chapter 465;
32 chapter 466; chapter 467; part I, part II, part III, part V,
33 part X, part XIII, or part XIV of chapter 468; chapter 478;
34 chapter 480; part III or part IV of chapter 483; chapter 484;
35 chapter 486; chapter 490; or chapter 491; or an applicant for a
36 license, registration, or certification under the same laws.
37 (k) “Referral” means a practitioner who has been referred,
38 either as a self-referral or otherwise, or reported to a
39 consultant for impaired practitioner program services, but who
40 is not under a participant contract.
41 (l) “Treatment program” means a department- or consultant
42 approved residential, intensive outpatient, partial
43 hospitalization or other program through which an impaired
44 practitioner is treated based on the impaired practitioner’s
45 diagnosis and the treatment plan approved by the consultant.
46 (m) “Treatment provider” means a department- or consultant
47 approved state-licensed or nationally certified individual who
48 provides treatment to an impaired practitioner based on the
49 practitioner’s individual diagnosis and a treatment plan
50 approved by the consultant For professions that do not have
51 impaired practitioner programs provided for in their practice
52 acts, the department shall, by rule, designate approved impaired
53 practitioner programs under this section. The department may
54 adopt rules setting forth appropriate criteria for approval of
55 treatment providers. The rules may specify the manner in which
56 the consultant, retained as set forth in subsection (2), works
57 with the department in intervention, requirements for evaluating
58 and treating a professional, requirements for continued care of
59 impaired professionals by approved treatment providers,
60 continued monitoring by the consultant of the care provided by
61 approved treatment providers regarding the professionals under
62 their care, and requirements related to the consultant’s
63 expulsion of professionals from the program.
64 (2)(a) The department may shall retain one or more impaired
65 practitioner consultants to operate its impaired practitioner
66 program. Each consultant who are each licensees under the
67 jurisdiction of the Division of Medical Quality Assurance within
68 the department and who must be:
69 (a)1. A practitioner or recovered practitioner licensed
70 under chapter 458, chapter 459, or part I of chapter 464; or
71 (b)2. An entity that employs:
72 1.a. A medical director who is must be a practitioner or
73 recovered practitioner licensed under chapter 458 or chapter
74 459; or
75 2.b. An executive director who is must be a registered
76 nurse or a recovered registered nurse licensed under part I of
77 chapter 464.
78 (3) The terms and conditions of the impaired practitioner
79 program must be established by the department by contract with a
80 consultant for the protection of the health, safety, and welfare
81 of the public and must provide, at a minimum, that the
82 consultant:
83 (a) Accepts referrals;
84 (b) Arranges for the evaluation and treatment of impaired
85 practitioners by a treatment provider, when the consultant deems
86 the evaluation and treatment necessary;
87 (c) Monitors the recovery progress and status of impaired
88 practitioners to ensure that such practitioners are able to
89 practice their profession with skill and safety. Such monitoring
90 must continue until the consultant or department concludes that
91 monitoring by the consultant is no longer required for the
92 protection of the public or until the practitioner’s
93 participation in the program is terminated for material
94 noncompliance or inability to progress; and
95 (d) Does not directly evaluate, treat, or otherwise provide
96 patient care to a practitioner in the operation of the impaired
97 practitioner program.
98 (4) The department shall specify, in its contract with each
99 consultant, the types of licenses, registrations, or
100 certifications of the practitioners to be served by that
101 consultant.
102 (5) A consultant shall enter into a participant contract
103 with an impaired practitioner and shall establish the terms of
104 monitoring and shall include the terms in a participant
105 contract. In establishing the terms of monitoring, the
106 consultant may consider the recommendations of one or more
107 approved evaluators, treatment programs, or treatment providers.
108 A consultant may modify the terms of monitoring if the
109 consultant concludes, through the course of monitoring, that
110 extended, additional, or amended terms of monitoring are
111 required for the protection of the health, safety, and welfare
112 of the public.
113 (6)(b) A An entity retained as an impaired practitioner
114 consultant under this section which employs a medical director
115 or an executive director is not required to be licensed as a
116 substance abuse provider or mental health treatment provider
117 under chapter 394, chapter 395, or chapter 397 for purposes of
118 providing services under this program.
119 (7)(c)1. Each The consultant shall assist the department
120 and licensure boards on matters of impaired practitioners,
121 including the determination of probable cause panel and the
122 department in carrying out the responsibilities of this section.
123 This includes working with department investigators to determine
124 whether a practitioner is, in fact, impaired, as specified in
125 the consultant’s contract with the department.
126 2. The consultant may contract with a school or program to
127 provide services to a student enrolled for the purpose of
128 preparing for licensure as a health care practitioner as defined
129 in this chapter or as a veterinarian under chapter 474 if the
130 student is allegedly impaired as a result of the misuse or abuse
131 of alcohol or drugs, or both, or due to a mental or physical
132 condition. The department is not responsible for paying for the
133 care provided by approved treatment providers or a consultant.
134 (d) A medical school accredited by the Liaison Committee on
135 Medical Education or the Commission on Osteopathic College
136 Accreditation, or another school providing for the education of
137 students enrolled in preparation for licensure as a health care
138 practitioner as defined in this chapter or a veterinarian under
139 chapter 474 which is governed by accreditation standards
140 requiring notice and the provision of due process procedures to
141 students, is not liable in any civil action for referring a
142 student to the consultant retained by the department or for
143 disciplinary actions that adversely affect the status of a
144 student when the disciplinary actions are instituted in
145 reasonable reliance on the recommendations, reports, or
146 conclusions provided by such consultant, if the school, in
147 referring the student or taking disciplinary action, adheres to
148 the due process procedures adopted by the applicable
149 accreditation entities and if the school committed no
150 intentional fraud in carrying out the provisions of this
151 section.
152 (8)(3) Before issuing an approval of, or intent to deny, an
153 application for licensure, each board and profession within the
154 Division of Medical Quality Assurance may delegate to its chair
155 or other designee its authority to determine, before certifying
156 or declining to certify an application for licensure to the
157 department, that an applicant for licensure under its
158 jurisdiction may have an impairment be impaired as a result of
159 the misuse or abuse of alcohol or drugs, or both, or due to a
160 mental or physical condition that could affect the applicant’s
161 ability to practice with skill and safety. Upon such
162 determination, the chair or other designee may refer the
163 applicant to the consultant to facilitate for an evaluation
164 before the board issues an approval of, certifies or intent to
165 deny, declines to certify his or her application to the
166 department. If the applicant agrees to be evaluated by the
167 consultant, the department’s deadline for approving or denying
168 the application pursuant to s. 120.60(1) is tolled until the
169 evaluation is completed and the result of the evaluation and
170 recommendation by the consultant is communicated to the board by
171 the consultant. If the applicant declines to be evaluated by the
172 consultant, the board shall issue an approval of, or intent to
173 deny, certify or decline to certify the applicant’s application
174 to the department notwithstanding the lack of an evaluation and
175 recommendation by the consultant.
176 (9)(a)(4)(a) When Whenever the department receives a
177 written or oral legally sufficient complaint alleging that a
178 practitioner has an impairment licensee under the jurisdiction
179 of the Division of Medical Quality Assurance within the
180 department is impaired as a result of the misuse or abuse of
181 alcohol or drugs, or both, or due to a mental or physical
182 condition which could affect the licensee’s ability to practice
183 with skill and safety, and no complaint exists against the
184 practitioner licensee other than impairment exists, the
185 department shall refer the practitioner to the consultant, along
186 with all information in the department’s possession relating to
187 the impairment. The impairment does reporting of such
188 information shall not constitute grounds for discipline pursuant
189 to s. 456.072 or the corresponding grounds for discipline within
190 the applicable practice act if the probable cause panel of the
191 appropriate board, or the department when there is no board,
192 finds:
193 1. The practitioner licensee has acknowledged the
194 impairment; problem.
195 2. The practitioner becomes a participant licensee has
196 voluntarily enrolled in an impaired practitioner program and
197 successfully completes a participant contract under terms
198 established by the consultant; appropriate, approved treatment
199 program.
200 3. The practitioner licensee has voluntarily withdrawn from
201 practice or has limited the scope of his or her practice if as
202 required by the consultant;, in each case, until such time as
203 the panel, or the department when there is no board, is
204 satisfied the licensee has successfully completed an approved
205 treatment program.
206 4. The practitioner licensee has provided to the
207 consultant, or has authorized the consultant to obtain, all
208 records and information relating to the impairment from any
209 source and all other medical records of the practitioner
210 requested by the consultant; and executed releases for medical
211 records, authorizing the release of all records of evaluations,
212 diagnoses, and treatment of the licensee, including records of
213 treatment for emotional or mental conditions, to the consultant.
214 The consultant shall make no copies or reports of records that
215 do not regard the issue of the licensee’s impairment and his or
216 her participation in a treatment program.
217 5. The practitioner has authorized the consultant, in the
218 event of the practitioner’s termination from the impaired
219 practitioner program, to report the termination to the
220 department and provide the department with copies of all
221 information in the consultant’s possession relating to the
222 practitioner.
223 (b) To encourage practitioners who are or may be impaired
224 to voluntarily self-refer to a consultant, the consultant may
225 not provide information to the department relating to a self
226 referring participant if the consultant has no knowledge of a
227 pending department investigation, complaint, or disciplinary
228 action against the participant and if the participant is in
229 compliance and making progress with the terms of the impaired
230 practitioner program and contract, unless authorized by the
231 participant If, however, the department has not received a
232 legally sufficient complaint and the licensee agrees to withdraw
233 from practice until such time as the consultant determines the
234 licensee has satisfactorily completed an approved treatment
235 program or evaluation, the probable cause panel, or the
236 department when there is no board, shall not become involved in
237 the licensee’s case.
238 (c) Inquiries related to impairment treatment programs
239 designed to provide information to the licensee and others and
240 which do not indicate that the licensee presents a danger to the
241 public shall not constitute a complaint within the meaning of s.
242 456.073 and shall be exempt from the provisions of this
243 subsection.
244 (d) Whenever the department receives a legally sufficient
245 complaint alleging that a licensee is impaired as described in
246 paragraph (a) and no complaint against the licensee other than
247 impairment exists, the department shall forward all information
248 in its possession regarding the impaired licensee to the
249 consultant. For the purposes of this section, a suspension from
250 hospital staff privileges due to the impairment does not
251 constitute a complaint.
252 (e) The probable cause panel, or the department when there
253 is no board, shall work directly with the consultant, and all
254 information concerning a practitioner obtained from the
255 consultant by the panel, or the department when there is no
256 board, shall remain confidential and exempt from the provisions
257 of s. 119.07(1), subject to the provisions of subsections (6)
258 and (7).
259 (f) A finding of probable cause shall not be made as long
260 as the panel, or the department when there is no board, is
261 satisfied, based upon information it receives from the
262 consultant and the department, that the licensee is progressing
263 satisfactorily in an approved impaired practitioner program and
264 no other complaint against the licensee exists.
265 (10)(5) In any disciplinary action for a violation other
266 than impairment in which a practitioner licensee establishes the
267 violation for which the practitioner licensee is being
268 prosecuted was due to or connected with impairment and further
269 establishes the practitioner licensee is satisfactorily
270 progressing through or has successfully completed an impaired
271 practitioner program approved treatment program pursuant to this
272 section, such information may be considered by the board, or the
273 department when there is no board, as a mitigating factor in
274 determining the appropriate penalty. This subsection does not
275 limit mitigating factors the board may consider.
276 (11)(a)(6)(a) Upon request by the consultant, and with the
277 authorization of the practitioner when required by law, an
278 approved evaluator, treatment program, or treatment provider
279 shall, upon request, disclose to the consultant all information
280 in its possession regarding a referral or participant the issue
281 of a licensee’s impairment and participation in the treatment
282 program. All information obtained by the consultant and
283 department pursuant to this section is confidential and exempt
284 from the provisions of s. 119.07(1), subject to the provisions
285 of this subsection and subsection (7). Failure to provide such
286 information to the consultant is grounds for withdrawal of
287 approval of such evaluator, treatment program, or treatment
288 provider.
289 (b) When a referral or participant is terminated from the
290 impaired practitioner program for material noncompliance with a
291 participant contract, inability to progress, or any other reason
292 than completion, the consultant shall disclose If in the opinion
293 of the consultant, after consultation with the treatment
294 provider, an impaired licensee has not progressed satisfactorily
295 in a treatment program, all information regarding the issue of a
296 licensee’s impairment and participation in a treatment program
297 in the consultant’s possession relating to the practitioner
298 shall be disclosed to the department. Such disclosure shall
299 constitute a complaint pursuant to the general provisions of s.
300 456.073. In addition, whenever the consultant concludes that
301 impairment affects a practitioner’s licensee’s practice and
302 constitutes an immediate, serious danger to the public health,
303 safety, or welfare, the consultant shall immediately communicate
304 such that conclusion shall be communicated to the department and
305 disclose all information in the consultant’s possession relating
306 to the practitioner to the department State Surgeon General.
307 (12) All information obtained by the consultant pursuant to
308 this section is confidential and exempt from s. 119.07(1) and s.
309 24(a), Art. I of the State Constitution.
310 (13)(7) A consultant, or a director, officer, employee, or
311 agent of a consultant, may not be held liable financially or may
312 not have a cause of action for damages brought against him or
313 her for making a disclosure pursuant to this section, for any
314 other action or omission relating to the impaired practitioner
315 program, or for the consequences of such disclosure or action or
316 omission, including, without limitation, action by the
317 department against a license, registration, or certification
318 licensee, or approved treatment provider who makes a disclosure
319 pursuant to this section is not subject to civil liability for
320 such disclosure or its consequences.
321 (14) The provisions of s. 766.101 apply to any consultant
322 and the consultant’s directors, officers, employees, or agents
323 in regards to providing information relating to a participant to
324 a medical review committee if the participant authorizes such
325 disclosure officer, employee, or agent of the department or the
326 board and to any officer, employee, or agent of any entity with
327 which the department has contracted pursuant to this section.
328 (15)(a)(8)(a) A consultant retained pursuant to this
329 section and subsection (2), a consultant’s directors, officers,
330 and employees, or agents and those acting at the direction of
331 the consultant for the limited purpose of an emergency
332 intervention on behalf of a licensee or student as described in
333 subsection (2) when the consultant is unable to perform such
334 intervention shall be considered agents of the department for
335 purposes of s. 768.28 while acting within the scope of the
336 consultant’s duties under the contract with the department if
337 the contract complies with the requirements of this section. The
338 contract must require that:
339 1. The consultant indemnify the state for any liabilities
340 incurred up to the limits set out in chapter 768.
341 2. The consultant establish a quality assurance program to
342 monitor services delivered under the contract.
343 3. The consultant’s quality assurance program, treatment,
344 and monitoring records be evaluated quarterly.
345 4. The consultant’s quality assurance program be subject to
346 review and approval by the department.
347 5. The consultant operate under policies and procedures
348 approved by the department.
349 6. The consultant provide to the department for approval a
350 policy and procedure manual that comports with all statutes,
351 rules, and contract provisions approved by the department.
352 7. The department be entitled to review the records
353 relating to the consultant’s performance under the contract for
354 the purpose of management audits, financial audits, or program
355 evaluation.
356 8. All performance measures and standards be subject to
357 verification and approval by the department.
358 9. The department be entitled to terminate the contract
359 with the consultant for noncompliance with the contract.
360 (b) In accordance with s. 284.385, the Department of
361 Financial Services shall defend any claim, suit, action, or
362 proceeding, including a claim, suit, action, or proceeding for
363 injunctive, affirmative, or declaratory relief, against the
364 consultant, or the consultant’s directors, officers, or
365 employees, and agents brought as the result of any action or
366 omission relating to the impaired practitioner program or those
367 acting at the direction of the consultant for the limited
368 purpose of an emergency intervention on behalf of a licensee or
369 student as described in subsection (2) when the consultant is
370 unable to perform such intervention, which claim, suit, action,
371 or proceeding is brought as a result of an act or omission by
372 any of the consultant’s officers and employees and those acting
373 under the direction of the consultant for the limited purpose of
374 an emergency intervention on behalf of the licensee or student
375 when the consultant is unable to perform such intervention, if
376 the act or omission arises out of and is in the scope of the
377 consultant’s duties under its contract with the department.
378 (16)(c) If a the consultant retained by the department
379 pursuant to this section subsection (2) is also retained by
380 another any other state agency to operate an impaired
381 practitioner program for that agency, this section also applies
382 to the consultant’s operation of an impaired practitioner
383 program for that agency, and if the contract between such state
384 agency and the consultant complies with the requirements of this
385 section, the consultant, the consultant’s officers and
386 employees, and those acting under the direction of the
387 consultant for the limited purpose of an emergency intervention
388 on behalf of a licensee or student as described in subsection
389 (2) when the consultant is unable to perform such intervention
390 shall be considered agents of the state for the purposes of this
391 section while acting within the scope of and pursuant to
392 guidelines established in the contract between such state agency
393 and the consultant.
394 (17)(9) A An impaired practitioner consultant is the
395 official custodian of records relating to the referral of an
396 impaired licensee or applicant to that consultant and any other
397 interaction between the licensee or applicant and the
398 consultant. The consultant may disclose to a referral or
399 participant documents, records, or other information from the
400 consultant’s file on the referral or participant the impaired
401 licensee or applicant or his or her designee any information
402 that is disclosed to or obtained by the consultant or that is
403 confidential under paragraph (6)(a), but only to the extent that
404 it is necessary to do so to carry out the consultant’s duties
405 under the impaired practitioner program and this section, or as
406 otherwise required by law. The department, and any other entity
407 that enters into a contract with the consultant to receive the
408 services of the consultant, has direct administrative control
409 over the consultant to the extent necessary to receive
410 disclosures from the consultant as allowed by federal law. If a
411 disciplinary proceeding is pending, a referral or participant
412 may obtain a complete copy of the consultant’s file from the
413 department as provided by an impaired licensee may obtain such
414 information from the department under s. 456.073.
415 (18)(a) The consultant may contract with a school or
416
417 ================= T I T L E A M E N D M E N T ================
418 And the title is amended as follows:
419 Delete line 26
420 and insert:
421 practitioners; making technical changes; requiring the
422 department to refer