Florida Senate - 2017                          SENATOR AMENDMENT
       Bill No. CS/CS/HB 229, 1st Eng.
       
       
       
       
       
       
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                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                 Floor: WD/2R          .                                
             05/02/2017 05:36 PM       .                                
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       Senator Young moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 294 - 567
    4  and insert:
    5         (b) For practitioners who are employed by governmental
    6  entities and who are also certified by the department pursuant
    7  to part III of chapter 401, the department may not refer the
    8  practitioner to the consultant if the practitioner is under a
    9  referral by the practitioner’s employer to an employee
   10  assistance program through the governmental entity. If the
   11  practitioner fails to satisfactorily complete the employee
   12  assistance program or if his or her employment is terminated,
   13  his or her employer must immediately notify the department,
   14  which shall then refer the practitioner to the consultant as
   15  required in paragraph (a). For purposes of this paragraph, the
   16  term governmental entity” has the same meaning as provided in
   17  s. 70.001(3)(c).
   18         (c) To encourage practitioners who are or may be impaired
   19  to voluntarily self-refer to a consultant, the consultant may
   20  not, unless authorized by the participant, provide information
   21  to the department relating to a self-referring participant if
   22  the consultant does not know of a pending department
   23  investigation, complaint, or disciplinary action against the
   24  participant and the participant is in compliance and making
   25  progress with the terms of the impaired practitioner program and
   26  contract If, however, the department has not received a legally
   27  sufficient complaint and the licensee agrees to withdraw from
   28  practice until such time as the consultant determines the
   29  licensee has satisfactorily completed an approved treatment
   30  program or evaluation, the probable cause panel, or the
   31  department when there is no board, shall not become involved in
   32  the licensee’s case.
   33         (c)Inquiries related to impairment treatment programs
   34  designed to provide information to the licensee and others and
   35  which do not indicate that the licensee presents a danger to the
   36  public shall not constitute a complaint within the meaning of s.
   37  456.073 and shall be exempt from the provisions of this
   38  subsection.
   39         (d)Whenever the department receives a legally sufficient
   40  complaint alleging that a licensee is impaired as described in
   41  paragraph (a) and no complaint against the licensee other than
   42  impairment exists, the department shall forward all information
   43  in its possession regarding the impaired licensee to the
   44  consultant. For the purposes of this section, a suspension from
   45  hospital staff privileges due to the impairment does not
   46  constitute a complaint.
   47         (e)The probable cause panel, or the department when there
   48  is no board, shall work directly with the consultant, and all
   49  information concerning a practitioner obtained from the
   50  consultant by the panel, or the department when there is no
   51  board, shall remain confidential and exempt from the provisions
   52  of s. 119.07(1), subject to the provisions of subsections (6)
   53  and (7).
   54         (f)A finding of probable cause shall not be made as long
   55  as the panel, or the department when there is no board, is
   56  satisfied, based upon information it receives from the
   57  consultant and the department, that the licensee is progressing
   58  satisfactorily in an approved impaired practitioner program and
   59  no other complaint against the licensee exists.
   60         (10)(5) In any disciplinary action for a violation other
   61  than impairment in which a practitioner licensee establishes
   62  that the violation for which the practitioner licensee is being
   63  prosecuted was due to or connected with impairment, and further
   64  establishes that the practitioner licensee is satisfactorily
   65  progressing through or has successfully completed an impaired
   66  practitioner program approved treatment program pursuant to this
   67  section, such information may be considered by the board, or the
   68  department when there is no board, as a mitigating factor in
   69  determining the appropriate penalty. This subsection does not
   70  limit the mitigating factors that may be considered by the board
   71  may consider.
   72         (11)(a)(6)(a)Upon request by the consultant, and with the
   73  authorization of the practitioner when such authorization is
   74  required by law, an approved evaluator, treatment program, or
   75  treatment provider shall, upon request, disclose to the
   76  consultant all information in its possession regarding a
   77  referral or the participant the issue of a licensee’s impairment
   78  and participation in the treatment program. All information
   79  obtained by the consultant and department pursuant to this
   80  section is confidential and exempt from the provisions of s.
   81  119.07(1), subject to the provisions of this subsection and
   82  subsection (7). Failure to provide such information to the
   83  consultant is grounds for withdrawal of approval of such
   84  evaluator, treatment program, or treatment provider.
   85         (b) If a referral to or participant in an impaired
   86  practitioner program is terminated for material noncompliance
   87  with a participant contract, inability to progress, or any
   88  reason other than completion, the consultant shall disclose to
   89  the department If in the opinion of the consultant, after
   90  consultation with the treatment provider, an impaired licensee
   91  has not progressed satisfactorily in a treatment program, all
   92  information regarding the issue of a licensee’s impairment and
   93  participation in a treatment program in the consultant’s
   94  possession relating to the practitioner shall be disclosed to
   95  the department. Such disclosure shall constitute a complaint
   96  pursuant to the general provisions of s. 456.073. In addition,
   97  whenever the consultant concludes that impairment affects a
   98  practitioner’s licensee’s practice and constitutes an immediate,
   99  serious danger to the public health, safety, or welfare, the
  100  consultant shall immediately communicate that conclusion shall
  101  be communicated to the department, disclosing all information in
  102  the consultant’s possession relating to the practitioner State
  103  Surgeon General.
  104         (12)Information obtained by the consultant pursuant to
  105  this section is confidential and exempt from s. 119.07(1) and s.
  106  24(a), Art. I of the State Constitution.
  107         (13)(7) A consultant, or a director, officer, employee, or
  108  agent of a consultant, may not be held liable financially and
  109  may not have a cause of action for damages brought against him
  110  or her for making a disclosure pursuant to this section, for any
  111  other action or omission relating to the impaired practitioner
  112  program, or for the consequences of such disclosure or action or
  113  omission, including, without limitation, action by the
  114  department against a license, registration, or certification
  115  licensee, or approved treatment provider who makes a disclosure
  116  pursuant to this section is not subject to civil liability for
  117  such disclosure or its consequences.
  118         (14)Section 766.101 applies The provisions of s. 766.101
  119  apply to any consultant and the consultant’s directors,
  120  officers, employees, or agents with regard to information
  121  relating to a participant to a medical review committee if the
  122  participant authorizes such disclosure officer, employee, or
  123  agent of the department or the board and to any officer,
  124  employee, or agent of any entity with which the department has
  125  contracted pursuant to this section.
  126         (15)(a)(8)(a) A consultant retained pursuant to this
  127  section and subsection (2), a consultant’s directors, officers,
  128  and employees, or agents and those acting at the direction of
  129  the consultant for the limited purpose of an emergency
  130  intervention on behalf of a licensee or student as described in
  131  subsection (2) when the consultant is unable to perform such
  132  intervention shall be considered agents of the department for
  133  purposes of s. 768.28 while acting within the scope of the
  134  consultant’s duties under the contract with the department if
  135  the contract complies with the requirements of this section. The
  136  contract must require that:
  137         1.The consultant indemnify the state for any liabilities
  138  incurred up to the limits set out in chapter 768.
  139         2.The consultant establish a quality assurance program to
  140  monitor services delivered under the contract.
  141         3.The consultant’s quality assurance program, treatment,
  142  and monitoring records be evaluated quarterly.
  143         4.The consultant’s quality assurance program be subject to
  144  review and approval by the department.
  145         5.The consultant operate under policies and procedures
  146  approved by the department.
  147         6.The consultant provide to the department for approval a
  148  policy and procedure manual that comports with all statutes,
  149  rules, and contract provisions approved by the department.
  150         7.The department be entitled to review the records
  151  relating to the consultant’s performance under the contract for
  152  the purpose of management audits, financial audits, or program
  153  evaluation.
  154         8.All performance measures and standards be subject to
  155  verification and approval by the department.
  156         9.The department be entitled to terminate the contract
  157  with the consultant for noncompliance with the contract.
  158         (b) In accordance with s. 284.385, the Department of
  159  Financial Services shall defend any claim, suit, action, or
  160  proceeding, including a claim, suit, action, or proceeding for
  161  injunctive, affirmative, or declaratory relief, against the
  162  consultant, or the consultant’s directors, officers, or
  163  employees, or agents brought as the result of any action or
  164  omission relating to the impaired practitioner program those
  165  acting at the direction of the consultant for the limited
  166  purpose of an emergency intervention on behalf of a licensee or
  167  student as described in subsection (2) when the consultant is
  168  unable to perform such intervention, which claim, suit, action,
  169  or proceeding is brought as a result of an act or omission by
  170  any of the consultant’s officers and employees and those acting
  171  under the direction of the consultant for the limited purpose of
  172  an emergency intervention on behalf of the licensee or student
  173  when the consultant is unable to perform such intervention, if
  174  the act or omission arises out of and is in the scope of the
  175  consultant’s duties under its contract with the department.
  176         (16)(c) If a the consultant retained by the department
  177  pursuant to this section subsection (2) is also retained by
  178  another any other state agency to operate an impaired
  179  practitioner program for that agency, this section also applies
  180  to the consultant’s operation of an impaired practitioner
  181  program for that agency, and if the contract between such state
  182  agency and the consultant complies with the requirements of this
  183  section, the consultant, the consultant’s officers and
  184  employees, and those acting under the direction of the
  185  consultant for the limited purpose of an emergency intervention
  186  on behalf of a licensee or student as described in subsection
  187  (2) when the consultant is unable to perform such intervention
  188  shall be considered agents of the state for the purposes of this
  189  section while acting within the scope of and pursuant to
  190  guidelines established in the contract between such state agency
  191  and the consultant.
  192         (17)(9)A An impaired practitioner consultant is the
  193  official custodian of records relating to the referral of an
  194  impaired licensee or applicant to that consultant and any other
  195  interaction between the licensee or applicant and the
  196  consultant. The consultant may disclose to a referral or
  197  participant, or to the legal representative of the referral or
  198  participant, the documents, records, or other information from
  199  the consultant’s file, including information received by the
  200  consultant from other sources, and information on the terms
  201  required for the referrals or participant’s monitoring
  202  contract, the referrals or participant’s progress or inability
  203  to progress, the referrals or participants discharge or
  204  termination, information supporting the conclusion of material
  205  noncompliance, or any other information required by law the
  206  impaired licensee or applicant or his or her designee any
  207  information that is disclosed to or obtained by the consultant
  208  or that is confidential under paragraph (6)(a), but only to the
  209  extent that it is necessary to do so to carry out the
  210  consultant’s duties under this section. The department, and any
  211  other entity that enters into a contract with the consultant to
  212  receive the services of the consultant, has direct
  213  administrative control over the consultant to the extent
  214  necessary to receive disclosures from the consultant as allowed
  215  by federal law. If a consultant discloses information to the
  216  department in accordance with this part, a referral or
  217  participant, or his or her legal representative, may obtain a
  218  complete copy of the consultant’s file from the consultant or
  219  disciplinary proceeding is pending, an impaired licensee may
  220  obtain such information from the department under s. 456.073.
  221         (18)(a)The consultant may contract with a school or
  222  program to provide impaired practitioner program services to a
  223  student enrolled for the purpose of preparing for licensure as a
  224  health care practitioner as defined in this chapter or as a
  225  veterinarian under chapter 474 if the student has or is
  226  suspected of having an impairment. The department is not
  227  responsible for paying for the care provided by approved
  228  treatment providers or approved treatment programs or for the
  229  services provided by a consultant to a student.
  230         (b)A medical school accredited by the Liaison Committee on
  231  Medical Education or the Commission on Osteopathic College
  232  Accreditation, or another school providing for the education of
  233  students enrolled in preparation for licensure as a health care
  234  practitioner as defined in this chapter, or as a veterinarian
  235  under chapter 474, which is governed by accreditation standards
  236  requiring notice and the provision of due process procedures to
  237  students, is not liable in any civil action for referring a
  238  student to the consultant retained by the department or for
  239  disciplinary actions that adversely affect the status of a
  240  student when the disciplinary actions are instituted in
  241  reasonable reliance on the recommendations, reports, or
  242  conclusions provided by such consultant, if the school, in
  243  referring the student or taking disciplinary action, adheres to
  244  the due process procedures adopted by the applicable
  245  accreditation entities and committed no intentional fraud in
  246  acting under this section.
  247         Section 2. Effective December 31, 2018, or upon enactment
  248  of the Nurse Licensure Compact into law by 26 states, whichever
  249  occurs first, subsection (9) of section 456.076, Florida
  250  Statutes, as amended by section 2 of chapter 2016-139, Laws of
  251  Florida, is amended to read:
  252         456.076 Impaired practitioner programs.—
  253         (16)(9)A An impaired practitioner consultant is the
  254  official custodian of records relating to the referral of an
  255  impaired licensee or applicant to that consultant and any other
  256  interaction between the licensee or applicant and the
  257  consultant. The consultant may disclose to a referral or
  258  participant, or to the legal representative of the referral or
  259  participant, the documents, records, or other information from
  260  the consultant’s file, including information received by the
  261  consultant from other sources; information on the terms required
  262  for the referral’s or participant’s monitoring contract, the
  263  referral’s or participant’s progress or inability to progress,
  264  or the referral’s or participant’s discharge or termination;
  265  information supporting the conclusion of material noncompliance;
  266  or any other information required by law the impaired licensee
  267  or applicant or his or her designee any information that is
  268  disclosed to or obtained by the consultant or that is
  269  confidential under paragraph (6)(a), but only to the extent that
  270  it is necessary to do so to carry out the consultant’s duties
  271  under this section. The department, and any other entity that
  272  enters into a contract with the consultant to receive the
  273  services of the consultant, has direct administrative control
  274  over the consultant to the extent necessary to receive
  275  disclosures from the consultant as allowed by federal law. The
  276  consultant must disclose to the department, upon the
  277  department’s request, whether an applicant for a multistate
  278  license under s. 464.0095 is participating in a treatment
  279  program and must report to the department when a nurse holding a
  280  multistate license under s. 464.0095 enters a treatment program.
  281  A nurse holding a multistate license pursuant to s. 464.0095
  282  must report to the department within 2 business days after
  283  entering a treatment program pursuant to this section. If a
  284  consultant discloses information to the department in accordance
  285  with this part, a referral or participant, or his or her legal
  286  representative, may obtain a complete copy of the consultant’s
  287  file from the consultant or disciplinary proceeding is pending,
  288  an impaired licensee may obtain such information from the
  289  department under s. 456.073.
  290         Section 3. Section 456.0495, Florida Statutes, is created
  291  to read:
  292         456.0495 Reporting adverse incidents occurring in out-of
  293  hospital births.—
  294         (1) A midwife licensed under chapter 467 or a health care
  295  provider, as applicable, shall report any adverse incident, as
  296  defined by department rule, occurring as a result of an
  297  attempted or completed out-of-hospital or planned birthing
  298  center birth or, along with a medical summary of events, to the
  299  department within 15 days after the adverse incident occurs.
  300         (2) The department shall adopt rules establishing
  301  guidelines for reporting adverse incidents, including, but not
  302  limited to:
  303         (a) Maternal deaths that occur during delivery or within 42
  304  days after delivery.
  305         (b) Transfers of maternal patients to a hospital intensive
  306  care unit.
  307         (c) Maternal patients who experience hemorrhagic shock or
  308  who require a transfusion of more than 4 units of blood or blood
  309  products.
  310         (d) Fetal or infant deaths, including stillbirths,
  311  associated with obstetrical deliveries.
  312         (e) Transfers of infants to a neonatal intensive care unit
  313  due to a traumatic physical or neurological birth injury,
  314  including any degree of a brachial plexus injury.
  315         (f) Transfers of infants to a neonatal intensive care unit
  316  within the first 72 hours after birth if the infant remains in
  317  such a unit for more than 72 hours.
  318  
  319  ================= T I T L E  A M E N D M E N T ================
  320  And the title is amended as follows:
  321         Delete lines 9 - 39
  322  and insert:
  323         consultants work with the department in intervention,
  324         in evaluating and treating professionals, in providing
  325         and monitoring continued care of impaired
  326         professionals, and in expelling professionals from the
  327         program; authorizing, instead of requiring, the
  328         department to retain one or more consultants to
  329         operate its impaired practitioner program; requiring
  330         the department to establish the terms and conditions
  331         of the program by contract; providing contract terms;
  332         requiring consultants to establish the terms of
  333         monitoring impaired practitioners; authorizing
  334         consultants to consider the recommendations of certain
  335         persons in establishing the terms of monitoring;
  336         authorizing consultants to modify monitoring terms to
  337         protect the health, safety, and welfare of the public;
  338         requiring consultants to assist the department and
  339         licensure boards on matters relating to impaired
  340         practitioners; making technical changes; requiring the
  341         department to refer practitioners to consultants under
  342         certain circumstances; authorizing consultants to
  343         withhold certain information about self-reporting
  344         participants from the department under certain
  345         circumstances to encourage self-reporting; requiring
  346         consultants to disclose all information relating to
  347         practitioners who are terminated from the program for
  348         material noncompliance; providing that all information
  349         obtained by a consultant retains its confidential or
  350         exempt status; providing that consultants, and certain
  351         agents of consultants, may not be held liable
  352         financially or have a cause of action for damages
  353         brought against them for disclosing certain
  354         information or for any other act or omission relating
  355         to the program; authorizing consultants to contract
  356         with a school or program to provide services to
  357         certain students; creating s. 456.0495, F.S.;
  358         requiring licensed midwives and health care providers
  359         to report adverse incidents to the department within a
  360         certain period; requiring the department to adopt
  361         rules establishing guidelines for reporting specified
  362         adverse incidents; amending s. 456.0635, F.S.;