The Florida Senate

460.413  Grounds for disciplinary action; action by board or department.--

(1)  The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

(a)  Attempting to obtain, obtaining, or renewing a license to practice chiropractic medicine by bribery, by fraudulent misrepresentations, or through an error of the department or the board.

(b)  Having a license to practice chiropractic medicine revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of another state, territory, or country.

(c)  Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of chiropractic medicine or to the ability to practice chiropractic medicine. Any plea of nolo contendere shall be considered a conviction for purposes of this chapter.

(d)  False, deceptive, or misleading advertising.

(e)  Causing to be advertised, by any means whatsoever, any advertisement which does not contain an assertion or statement which would identify herself or himself as a chiropractic physician or identify such chiropractic clinic or related institution in which she or he practices or in which she or he is owner, in whole or in part, as a chiropractic institution.

(f)  Advertising, practicing, or attempting to practice under a name other than one's own.

(g)  Failing to report to the department any person who the licensee knows is in violation of this chapter or of the rules of the department or the board.

(h)  Aiding, assisting, procuring, or advising any unlicensed person to practice chiropractic medicine contrary to this chapter or to a rule of the department or the board.

(i)  Failing to perform any statutory or legal obligation placed upon a licensed chiropractic physician.

(j)  Making or filing a report which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so. Such reports or records shall include only those which are signed in the capacity of a licensed chiropractic physician.

(k)  Making misleading, deceptive, untrue, or fraudulent representations in the practice of chiropractic medicine or employing a trick or scheme in the practice of chiropractic medicine when such trick or scheme fails to conform to the generally prevailing standards of treatment in the chiropractic medical community.

(l)  Soliciting patients either personally or through an agent, unless such solicitation falls into a category of solicitations approved by rule of the board.

(m)  Failing to keep legibly written chiropractic medical records that identify clearly by name and credentials the licensed chiropractic physician rendering, ordering, supervising, or billing for each examination or treatment procedure and that justify the course of treatment of the patient, including, but not limited to, patient histories, examination results, test results, X rays, and diagnosis of a disease, condition, or injury. X rays need not be retained for more than 4 years.

(n)  Exercising influence on the patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party which shall include, but not be limited to, the promotion or sale of services, goods or appliances, or drugs.

(o)  Performing professional services which have not been duly authorized by the patient or client or her or his legal representative except as provided in ss. 743.064, 766.103, and 768.13

(p)  Prescribing, dispensing, or administering any medicinal drug except as authorized by s. 460.403(9)(c)2., performing any surgery, or practicing obstetrics.

(q)  Being unable to practice chiropractic medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. In enforcing this paragraph, upon a finding by the secretary of the department, or his or her designee, or the probable cause panel of the board that probable cause exists to believe that the licensee is unable to practice the profession because of reasons stated in this paragraph, the department shall have the authority to compel a licensee to submit to a mental or physical examination by a physician designated by the department. If the licensee refuses to comply with the department's order, the department may file a petition for enforcement in the circuit court of the circuit in which the licensee resides or does business. The department shall be entitled to the summary procedure provided in s. 51.011 The record of proceedings to obtain a compelled mental or physical examination shall not be used against a licensee in any other proceedings. A chiropractic physician affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that she or he can resume the competent practice of chiropractic medicine with reasonable skill and safety to patients.

(r)  Gross or repeated malpractice or the failure to practice chiropractic medicine at a level of care, skill, and treatment which is recognized by a reasonably prudent chiropractic physician as being acceptable under similar conditions and circumstances. The board shall give great weight to the standards for malpractice in s. 766.102 in interpreting this provision. A recommended order by an administrative law judge, or a final order of the board finding a violation under this section shall specify whether the licensee was found to have committed "gross malpractice," "repeated malpractice," or "failure to practice chiropractic medicine with that level of care, skill, and treatment which is recognized as being acceptable under similar conditions and circumstances" or any combination thereof, and any publication by the board shall so specify.

(s)  Performing any procedure or prescribing any therapy which, by the prevailing standards of chiropractic medical practice in the community, would constitute experimentation on human subjects, without first obtaining full, informed, and written consent.

(t)  Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that she or he is not competent to perform.

(u)  Delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified by training, experience, or licensure to perform them.

(v)  Violating a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department.

(w)  Conspiring with another licensee or with any other person to commit an act, or committing an act, which would tend to coerce, intimidate, or preclude another licensee from lawfully advertising her or his services.

(x)  Submitting to any third-party payor a claim for a service or treatment which was not actually provided to a patient.

(y)  Failing to preserve identity of funds and property of a patient. As provided by rule of the board, money or other property entrusted to a chiropractic physician for a specific purpose, including advances for costs and expenses of examination or treatment, is to be held in trust and must be applied only to that purpose. Money and other property of patients coming into the hands of a chiropractic physician are not subject to counterclaim or setoff for chiropractic physician's fees, and a refusal to account for and deliver over such money and property upon demand shall be deemed a conversion. This is not to preclude the retention of money or other property upon which the chiropractic physician has a valid lien for services or to preclude the payment of agreed fees from the proceeds of transactions for examinations or treatments. Controversies as to the amount of the fees are not grounds for disciplinary proceedings unless the amount demanded is clearly excessive or extortionate, or the demand is fraudulent. All funds of patients paid to a chiropractic physician, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the chiropractic physician's office is situated, and no funds belonging to the chiropractic physician shall be deposited therein except as follows:

1.  Funds reasonably sufficient to pay bank charges may be deposited therein.

2.  Funds belonging in part to a patient and in part presently or potentially to the physician must be deposited therein, but the portion belonging to the physician may be withdrawn when due unless the right of the physician to receive it is disputed by the patient, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.

Every chiropractic physician shall maintain complete records of all funds, securities, and other properties of a patient coming into the possession of the physician and render appropriate accounts to the patient regarding them. In addition, every chiropractic physician shall promptly pay or deliver to the patient, as requested by the patient, the funds, securities, or other properties in the possession of the physician which the patient is entitled to receive.

(z)  Offering to accept or accepting payment for services rendered by assignment from any third-party payor after offering to accept or accepting whatever the third-party payor covers as payment in full, if the effect of the offering or acceptance is to eliminate or give the impression of eliminating the need for payment by an insured of any required deductions applicable in the policy of the insured.

(aa)  Failing to provide, upon request of the insured, a copy of a claim submitted to any third-party payor for service or treatment of the insured.

(bb)  Advertising a fee or charge for a service or treatment which is different from the fee or charge the licensee submits to third-party payors for that service or treatment.

(cc)  Advertising any reduced or discounted fees for services or treatments, or advertising any free services or treatments, without prominently stating in the advertisement the usual fee of the licensee for the service or treatment which is the subject of the discount, rebate, or free offering.

(dd)  Using acupuncture without being certified pursuant to s. 460.403(9)(f).

(ee)  Failing to report to the department any licensee under chapter 458 or under chapter 459 who the chiropractic physician or chiropractic physician's assistant knows has violated the grounds for disciplinary action set out in the law under which that person is licensed and who provides health care services in a facility licensed under chapter 395, or a health maintenance organization certificated under part I of chapter 641, in which the chiropractic physician or chiropractic physician's assistant also provides services.

(ff)  Violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto.

(2)  The board may enter an order denying licensure or imposing any of the penalties in s. 456.072(2) against any applicant for licensure or licensee who is found guilty of violating any provision of subsection (1) of this section or who is found guilty of violating any provision of s. 456.072(1). In determining what action is appropriate, the board must first consider what sanctions are necessary to protect the public or to compensate the patient. Only after those sanctions have been imposed may the disciplining authority consider and include in the order requirements designed to rehabilitate the chiropractic physician. All costs associated with compliance with orders issued under this subsection are the obligation of the chiropractic physician.

(3)  The department shall not reinstate the license of a chiropractic physician, or cause a license to be issued to a person the board has deemed unqualified, until such time as the board is satisfied that she or he has complied with all the terms and conditions set forth in the final order and that such person is capable of safely engaging in the practice of chiropractic medicine.

(4)  The board shall by rule establish guidelines for the disposition of disciplinary cases involving specific types of violations. Such guidelines may include minimum and maximum fines, periods of supervision or probation, or conditions of probation or reissuance of a license. "Gross malpractice," "repeated malpractice," and "failure to practice chiropractic medicine with that level of care, skill, and treatment which is recognized as being acceptable under similar circumstances" under paragraph (1)(r) shall each be considered distinct types of violations requiring specific individual guidelines.

(5)  When an investigation of a chiropractic physician is undertaken, the department shall promptly furnish to the chiropractic physician or her or his attorney a copy of the complaint or document which resulted in the initiation of the investigation. The chiropractic physician may submit a written response to the information contained in such complaint or document within 45 days after service to the chiropractic physician of the complaint or document. The chiropractic physician's written response shall be considered by the probable cause panel.

(6)  In any administrative action against a chiropractic physician which does not involve revocation or suspension of license, the department shall have the burden, by the greater weight of the evidence, to establish the existence of grounds for disciplinary action. The department shall establish grounds for revocation or suspension of license by clear and convincing evidence.

(7)  If any chiropractic physician is guilty of such unprofessional conduct, negligence, or mental or physical incapacity or impairment that the department determines that the chiropractic physician is unable to practice with reasonable skill and safety and presents a danger to patients, the department shall be authorized to maintain an action in circuit court enjoining such chiropractic physician from providing medical services to the public until the chiropractic physician demonstrates the ability to practice with reasonable skill and safety and without danger to patients.

History.--ss. 1, 7, ch. 79-211; s. 312, ch. 81-259; ss. 2, 3, ch. 81-318; s. 1, ch. 83-107; s. 22, ch. 83-329; ss. 13, 17, 18, ch. 86-285; s. 38, ch. 88-1; s. 17, ch. 88-277; s. 4, ch. 90-44; s. 1, ch. 90-79; ss. 45, 46, ch. 90-228; s. 64, ch. 91-220; s. 4, ch. 91-429; ss. 41, 93, ch. 92-149; s. 3, ch. 92-178; s. 30, ch. 95-144; ss. 6, 7, ch. 96-296; s. 222, ch. 96-410; s. 1103, ch. 97-103; s. 3, ch. 97-247; s. 68, ch. 97-264; s. 278, ch. 98-166; s. 107, ch. 99-397; s. 27, ch. 2001-277.