2011 Florida Statutes
Grounds for disciplinary action; action by the board.
Grounds for disciplinary action; action by the board.
466.028 Grounds for disciplinary action; action by the board.—
(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 under this chapter by bribery, fraudulent misrepresentations, or through an error of the department or the board.
(b) Having a license to practice dentistry or dental hygiene 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 of or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which relates to the practice of dentistry or dental hygiene. A plea of nolo contendere shall create a rebuttable presumption of guilt to the underlying criminal charges.
(d) Advertising goods or services in a manner which is fraudulent, false, deceptive, or misleading in form or content contrary to s. 466.019 or rules of the board adopted pursuant thereto.
(e) Advertising, practicing, or attempting to practice under a name other than one’s own.
(f) Failing to report to the department any person who the licensee knows, or has reason to believe, is clearly in violation of this chapter or of the rules of the department or the board.
(g) Aiding, assisting, procuring, or advising any unlicensed person to practice dentistry or dental hygiene contrary to this chapter or to a rule of the department or the board.
(h) Being employed by any corporation, organization, group, or person other than a dentist or a professional corporation or limited liability company composed of dentists to practice dentistry.
(i) Failing to perform any statutory or legal obligation placed upon a licensee.
(j) Making or filing a report which the licensee knows to be false, failing to file a report or record required by state or federal law, knowingly 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 as a licensee.
(k) Committing any act which would constitute sexual battery, as defined in chapter 794, upon a patient or intentionally touching the sexual organ of a patient.
(l) Making deceptive, untrue, or fraudulent representations in or related to the practice of dentistry.
(m) Failing to keep written dental records and medical history records justifying the course of treatment of the patient including, but not limited to, patient histories, examination results, test results, and X rays, if taken.
(n) Failing to make available to a patient or client, or to her or his legal representative or to the department if authorized in writing by the patient, copies of documents in the possession or under control of the licensee which relate to the patient or client.
(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. 766.103 and 768.13.
(p) Prescribing, procuring, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the professional practice of the dentist. For the purposes of this paragraph, it shall be legally presumed that prescribing, procuring, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the professional practice of the dentist, without regard to her or his intent.
(q) Prescribing, procuring, dispensing, or administering any medicinal drug appearing on any schedule set forth in chapter 893, by a dentist to herself or himself, except those prescribed, dispensed, or administered to the dentist by another practitioner authorized to prescribe them.
(r) Prescribing, procuring, ordering, dispensing, administering, supplying, selling, or giving any drug which is a Schedule II amphetamine or a Schedule II sympathomimetic amine drug or a compound thereof, pursuant to chapter 893, to or for any person except for the clinical investigation of the effects of such drugs or compounds when an investigative protocol therefor is submitted to, and reviewed and approved by, the board before such investigation is begun.
(s) Being unable to practice her or his profession 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, the department shall have, upon a finding of the State Surgeon General or her or his designee that probable cause exists to believe that the licensee is unable to practice dentistry or dental hygiene because of the reasons stated in this paragraph, the authority to issue an order to compel a licensee to submit to a mental or physical examination by physicians designated by the department. If the licensee refuses to comply with such order, the department’s order directing such examination may be enforced by filing a petition for enforcement in the circuit court where the licensee resides or does business. The licensee against whom the petition is filed shall not be named or identified by initials in any public court records or documents, and the proceedings shall be closed to the public. The department shall be entitled to the summary procedure provided in s. 51.011. A licensee affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that she or he can resume the competent practice of her or his profession with reasonable skill and safety to patients.
(t) Fraud, deceit, or misconduct in the practice of dentistry or dental hygiene.
(u) Failure to provide and maintain reasonable sanitary facilities and conditions.
(v) Failure to provide adequate radiation safeguards.
(w) Performing any procedure or prescribing any therapy which, by the prevailing standards of dental practice in the community, would constitute experimentation on human subjects, without first obtaining full, informed, and written consent.
(x) Being guilty of incompetence or negligence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance, including, but not limited to, the undertaking of diagnosis and treatment for which the dentist is not qualified by training or experience or being guilty of dental malpractice. For purposes of this paragraph, it shall be legally presumed that a dentist is not guilty of incompetence or negligence by declining to treat an individual if, in the dentist’s professional judgment, the dentist or a member of her or his clinical staff is not qualified by training and experience, or the dentist’s treatment facility is not clinically satisfactory or properly equipped to treat the unique characteristics and health status of the dental patient, provided the dentist refers the patient to a qualified dentist or facility for appropriate treatment. As used in this paragraph, “dental malpractice” includes, but is not limited to, three or more claims within the previous 5-year period which resulted in indemnity being paid, or any single indemnity paid in excess of $25,000 in a judgment or settlement, as a result of negligent conduct on the part of the dentist.
(y) 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.
(z) Delegating professional responsibilities to a person who is not qualified by training, experience, or licensure to perform them.
(aa) The violation of a lawful order of the board or department previously entered in a disciplinary hearing; or failure to comply with a lawfully issued subpoena of the board or department.
(bb) Conspiring with another licensee or with any 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.
(cc) Being adjudged mentally incompetent in this or any other state, the discipline for which shall last only so long as the adjudication.
(dd) Presigning blank prescription or laboratory work order forms.
(ee) Prescribing, ordering, dispensing, administering, supplying, selling, or giving growth hormones, testosterone or its analogs, human chorionic gonadotropin (HCG), or other hormones for the purpose of muscle building or to enhance athletic performance. For the purposes of this subsection, the term “muscle building” does not include the treatment of injured muscle. A prescription written for the drug products listed above may be dispensed by the pharmacist with the presumption that the prescription is for legitimate medical use.
(ff) Operating or causing to be operated a dental office in such a manner as to result in dental treatment that is below minimum acceptable standards of performance for the community. This includes, but is not limited to, the use of substandard materials or equipment, the imposition of time limitations within which dental procedures are to be performed, or the failure to maintain patient records as required by this chapter.
(gg) Administering anesthesia in a manner which violates rules of the board adopted pursuant to s. 466.017.
(hh) Failing to report to the department any licensee under chapter 458 or chapter 459 who the dentist 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 dentist also provides services.
(ii) Failing to report to the board, in writing, within 30 days if action has been taken against one’s license to practice dentistry in another state, territory, or country.
(jj) Advertising specialty services in violation of this chapter.
(kk) Allowing any person other than another dentist or a professional corporation or limited liability company composed of dentists to direct, control, or interfere with a dentist’s clinical judgment; however, this paragraph may not be construed to limit a patient’s right of informed consent. To direct, control, or interfere with a dentist’s clinical judgment may not be interpreted to mean dental services contractually excluded, the application of alternative benefits that may be appropriate given the dentist’s prescribed course of treatment, or the application of contractual provisions and scope of coverage determinations in comparison with a dentist’s prescribed treatment on behalf of a covered person by an insurer, health maintenance organization, or a prepaid limited health service organization.
1(ll) Providing deceptive or fraudulent expert witness testimony related to the practice of dentistry.
(mm) 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).
(3) There shall be a minimum 6-month suspension of the license of a dentist who is convicted of a violation of paragraph (1)(z).
(4) The department shall reissue the license of a disciplined licensee upon certification by the board that the disciplined licensee has complied with all of the terms and conditions set forth in the final order.
(5) In addition, if the department finds that an applicant has a complaint filed against her or him in another jurisdiction, the board may deny the application pending final disposition of the complaint.
(6) Upon the department’s receipt from an insurer or self-insurer of a report of a closed claim against a dentist pursuant to s. 627.912 or upon the receipt from a claimant of a presuit notice against a dentist pursuant to s. 766.106 the department shall review each report and determine whether it potentially involved conduct by a licensee that is subject to disciplinary action, in which case the provisions of s. 456.073 shall apply. However, if it is reported that a dentist has had any indemnity paid in excess of $25,000 in a judgment or settlement or has had three or more claims for dental malpractice within the previous 5-year period which resulted in indemnity being paid, the department shall investigate the occurrence upon which the claims were based and determine if action by the department against the dentist is warranted.
(7) Subject to the authority and conditions established in s. 456.073, the probable cause panel of the board may recommend that the department seek a specified penalty in cases in which probable cause has been found and the panel has directed that an administrative complaint be filed. If the department seeks a penalty other than that recommended by the probable cause panel, the department shall provide the board with a written statement which sets forth the reasons therefor. Nothing in this subsection shall preclude a probable cause panel of any other board under the jurisdiction of the department from making similar recommendations as penalties.
1(8) The purpose of this section is to facilitate uniform discipline for those acts made punishable under this section and, to this end, a reference to this section constitutes a general reference under the doctrine of incorporation by reference.
History.—ss. 1, 3, ch. 79-330; s. 5, ch. 80-354; s. 330, ch. 81-259; ss. 2, 3, ch. 81-318; s. 2, ch. 83-172; s. 5, ch. 85-6; ss. 18, 23, 24, ch. 86-291; s. 42, ch. 88-1; s. 21, ch. 88-277; s. 21, ch. 88-392; s. 11, ch. 89-66; ss. 29, 49, ch. 90-228; s. 3, ch. 90-341; s. 60, ch. 91-137; s. 7, ch. 91-156; s. 66, ch. 91-220; s. 4, ch. 91-429; s. 46, ch. 92-149; s. 6, ch. 92-178; s. 2, ch. 94-105; s. 61, ch. 95-144; s. 3, ch. 97-67; s. 262, ch. 97-103; s. 110, ch. 97-264; s. 73, ch. 98-166; s. 132, ch. 2000-160; s. 34, ch. 2001-277; s. 31, ch. 2003-416; s. 11, ch. 2005-240; s. 86, ch. 2008-6; s. 7, ch. 2011-233.
1Note.—Section 16, ch. 2011-233, provides that “[t]his act shall take effect October 1, 2011, and applies to causes of action accruing on or after that date.”