Senate Bill 1028c1
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    Florida Senate - 2000                           CS for SB 1028
    By the Committee on Health, Aging and Long-Term Care; and
    Senator Campbell
    317-1885-00
  1                      A bill to be entitled
  2         An act relating to the unlicensed practice of a
  3         health care profession; amending s. 455.637,
  4         F.S.; revising provisions relating to sanctions
  5         against the unlicensed practice of a health
  6         care profession; providing legislative intent;
  7         revising and expanding provisions relating to
  8         civil and administrative remedies; providing
  9         criminal penalties; incorporating and modifying
10         the substance of current provisions that impose
11         a fee to combat unlicensed activity and provide
12         for disposition of the proceeds thereof;
13         providing applicability; repealing s. 455.641,
14         F.S., relating to unlicensed activity fees, to
15         conform; reenacting ss. 455.574(1)(d),
16         468.1295(1), 484.014(1), 484.056(1), F.S.,
17         relating to violation of security provisions
18         for examinations and violations involving
19         speech-language pathology, audiology,
20         opticianry, and the dispensing of hearing aids,
21         to incorporate the amendment to s. 455.637,
22         F.S., in references thereto; creating s.
23         455.665, F.S.; requiring a specified statement
24         in any advertisement by a health care
25         practitioner for a surgical procedure; amending
26         s. 921.0022, F.S.; modifying the criminal
27         offense severity ranking chart to include
28         offenses relating to unlicensed practice of a
29         health care profession; providing an effective
30         date.
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  1         WHEREAS, the protection of Florida residents and
  2  visitors from death or serious bodily injury that may be
  3  caused by unlicensed health care practitioners is a state
  4  priority, and
  5         WHEREAS, the existing criminal prohibitions have not
  6  been vigorously enforced in the past, and
  7         WHEREAS, the existing penalties are not severe enough
  8  to deter the unlicensed practice of the health care
  9  professions, and
10         WHEREAS, persons convicted of practicing without a
11  license should be imprisoned so they cannot continue to hurt
12  Floridians, and
13         WHEREAS, persons convicted of practicing without a
14  license who are not citizens of this country should be
15  deported following incarceration to guarantee that they cannot
16  continue to endanger Floridians, NOW, THEREFORE,
17
18  Be It Enacted by the Legislature of the State of Florida:
19
20         Section 1.  Section 455.637, Florida Statutes, is
21  amended to read:
22         455.637  Unlicensed practice of a health care
23  profession; intent; cease and desist notice; penalties civil
24  penalty; enforcement; citations; fees; allocation and
25  disposition of moneys collected.--
26         (1)  It is the intent of the Legislature that vigorous
27  enforcement of licensure regulation for all health care
28  professions is a state priority in order to protect Florida
29  residents and visitors from the potentially serious and
30  dangerous consequences of receiving medical and health care
31  services from unlicensed persons whose professional education
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  1  and training and other relevant qualifications have not been
  2  approved through the issuance of a license by the appropriate
  3  regulatory board or the department when there is no board. The
  4  unlicensed practice of a health care profession or the
  5  performance or delivery of medical or health care services to
  6  patients in this state without a valid, active license to
  7  practice that profession is strictly prohibited.
  8         (2)  The penalties for unlicensed practice of a health
  9  care profession shall include the following:
10         (a)(1)  When the department has probable cause to
11  believe that any person not licensed by the department, or the
12  appropriate regulatory board within the department, has
13  violated any provision of this part or any statute that
14  relates to the practice of a profession regulated by the
15  department, or any rule adopted pursuant thereto, the
16  department may issue and deliver to such person a notice to
17  cease and desist from such violation. In addition, the
18  department may issue and deliver a notice to cease and desist
19  to any person who aids and abets the unlicensed practice of a
20  profession by employing such unlicensed person. The issuance
21  of a notice to cease and desist shall not constitute agency
22  action for which a hearing under ss. 120.569 and 120.57 may be
23  sought. For the purpose of enforcing a cease and desist order,
24  the department may file a proceeding in the name of the state
25  seeking issuance of an injunction or a writ of mandamus
26  against any person who violates any provisions of such order.
27         (b)  In addition to the foregoing remedies under
28  paragraph (a), the department may impose by citation an
29  administrative penalty not to exceed $5,000 per incident
30  pursuant to the provisions of chapter 120 or may issue a
31  citation pursuant to the provisions of subsection (3). The
                                  3
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  1  citation shall be issued to the subject and shall contain the
  2  subject's name and any other information the department
  3  determines to be necessary to identify the subject, a brief
  4  factual statement, the sections of the law allegedly violated,
  5  and the penalty imposed. If the subject does not dispute the
  6  matter in the citation with the department within 30 days
  7  after the citation is served, the citation shall become a
  8  final order of the department. The department may adopt rules
  9  to implement this section. The penalty shall be a fine of not
10  less than $500 nor more than $5,000 as established by rule of
11  the department. Each day that the unlicensed practice
12  continues after issuance of a notice to cease and desist
13  constitutes a separate violation. The department shall be
14  entitled to recover the costs of investigation and prosecution
15  in addition to the fine levied pursuant to the citation.
16  Service of a citation may be made by personal service or by
17  mail to the subject at the subject's last known address or
18  place of practice. If the department is required to seek
19  enforcement of the cease and desist or agency order for a
20  penalty pursuant to s. 120.569, it shall be entitled to
21  collect its attorney's fees and costs, together with any cost
22  of collection.
23         (c)(2)  In addition to or in lieu of any other
24  administrative remedy provided in subsection (1), the
25  department may seek the imposition of a civil penalty through
26  the circuit court for any violation for which the department
27  may issue a notice to cease and desist under subsection (1).
28  The civil penalty shall be no less than $500 and no more than
29  $5,000 for each offense. The court may also award to the
30  prevailing party court costs and reasonable attorney fees and,
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  1  in the event the department prevails, may also award
  2  reasonable costs of investigation and prosecution.
  3         (d)  In addition to the administrative and civil
  4  remedies under paragraphs (b) and (c) and in addition to the
  5  criminal violations and penalties listed in the individual
  6  health care practice acts:
  7         1.  It is a felony of the third degree, punishable as
  8  provided in s. 775.082, s. 775.083, or s. 775.084, to
  9  practice, attempt to practice, or offer to practice a health
10  care profession without an active, valid Florida license to
11  practice that profession. Practicing without an active, valid
12  license also includes practicing on a suspended, revoked, or
13  void license but does not include practicing, attempting to
14  practice, or offering to practice with an inactive or
15  delinquent license for any period up to 12 months. Applying
16  for employment for a position that requires a license without
17  notifying the employer that the person does not currently
18  possess a valid, active license to practice that profession
19  shall be deemed to be an attempt or offer to practice that
20  health care profession without a license. Holding oneself out,
21  regardless of the means of communication, as able to practice
22  a health care profession or as able to provide services that
23  require a health care license shall be deemed to be an attempt
24  or offer to practice such profession without a license. The
25  minimum penalty for violating this subparagraph shall be a
26  fine of $1,000 and a minimum mandatory period of incarceration
27  of 1 year.
28         2.  It is a felony of the second degree, punishable as
29  provided in s. 775.082, s. 775.083, or s. 775.084, to practice
30  a health care profession without an active, valid Florida
31  license to practice that profession when such practice results
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  1  in serious bodily injury. For purposes of this section,
  2  "serious bodily injury" means death; brain or spinal damage;
  3  disfigurement; fracture or dislocation of bones or joints;
  4  limitation of neurological, physical, or sensory function; or
  5  any condition that required subsequent surgical repair. The
  6  minimum penalty for violating this subparagraph shall be a
  7  fine of $1,000 and a minimum mandatory period of incarceration
  8  of 1 year.
  9         3.  It is a misdemeanor of the first degree, punishable
10  as provided in s. 775.082 or s. 775.083, to practice, attempt
11  to practice, or offer to practice a health care profession
12  with an inactive or delinquent license for any period of time
13  up to 12 months. However, practicing, attempting to practice,
14  or offering to practice a health care profession when that
15  person's license has been inactive or delinquent for a period
16  of time of 12 months or more shall be a felony of the third
17  degree, punishable as provided in s. 775.082, s. 775.083, or
18  s. 775.084. The minimum penalty for violating this
19  subparagraph shall be a term of imprisonment of 30 days and a
20  fine of $500.
21         (3)  Because all enforcement costs should be covered by
22  professions regulated by the department, the department shall
23  impose, upon initial licensure and each licensure renewal, a
24  special fee of $5 per licensee to fund efforts to combat
25  unlicensed activity. Such fee shall be in addition to all
26  other fees collected from each licensee. The board with
27  concurrence of the department, or the department when there is
28  no board, may earmark $5 of the current licensure fee for this
29  purpose, if such board, or profession regulated by the
30  department, is not in a deficit and has a reasonable cash
31  balance. The department shall make direct charges to the
                                  6
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  1  Medical Quality Assurance Trust Fund by profession. The
  2  department shall seek board advice regarding enforcement
  3  methods and strategies. The department shall directly credit
  4  the Medical Quality Assurance Trust Fund, by profession, with
  5  the revenues received from the department's efforts to enforce
  6  licensure provisions. The department shall include all
  7  financial and statistical data resulting from unlicensed
  8  activity enforcement as a separate category in the quarterly
  9  management report provided for in s. 455.587. For an
10  unlicensed activity account, a balance which remains at the
11  end of a renewal cycle may, with concurrence of the applicable
12  board and the department, be transferred to the operating fund
13  account of that profession. The department shall also use
14  these funds to inform and educate consumers generally on the
15  importance of using licensed health care practitioners.
16         (3)(a)  Notwithstanding the provisions of s. 455.621,
17  the department shall adopt rules to permit the issuance of
18  citations for unlicensed practice of a profession. The
19  citation shall be issued to the subject and shall contain the
20  subject's name and any other information the department
21  determines to be necessary to identify the subject, a brief
22  factual statement, the sections of the law allegedly violated,
23  and the penalty imposed. The citation must clearly state that
24  the subject may choose, in lieu of accepting the citation, to
25  follow the procedure under s. 455.621. If the subject disputes
26  the matter in the citation, the procedures set forth in s.
27  455.621 must be followed. However, if the subject does not
28  dispute the matter in the citation with the department within
29  30 days after the citation is served, the citation shall
30  become a final order of the department. The penalty shall be a
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  1  fine of not less than $500 or more than $5,000 or other
  2  conditions as established by rule.
  3         (b)  Each day that the unlicensed practice continues
  4  after issuance of a citation constitutes a separate violation.
  5         (c)  The department shall be entitled to recover the
  6  costs of investigation, in addition to any penalty provided
  7  according to department rule as part of the penalty levied
  8  pursuant to the citation.
  9         (d)  Service of a citation may be made by personal
10  service or certified mail, restricted delivery, to the subject
11  at the subject's last known address.
12         (4)  All fines, fees, and costs collected through the
13  procedures set forth in this section shall be allocated to the
14  professions in the manner provided for in s. 455.641 for the
15  allocation of the fees assessed and collected to combat
16  unlicensed practice of a profession.
17         (4)(5)  The provisions of this section apply only to
18  health care the professional practice acts administered by the
19  department.
20         Section 2.  The amendment of section 455.637, Florida
21  Statutes, by this act applies to offenses committed on or
22  after the effective date of such section.
23         Section 3.  Section 455.641, Florida Statutes, is
24  repealed.
25         Section 4.  For the purpose of incorporating the
26  amendment to section 455.637, Florida Statutes, in references
27  thereto, paragraph (d) of subsection (1) of section 455.574,
28  Florida Statutes, is reenacted to read:
29         455.574  Department of Health; examinations.--
30         (1)
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  1         (d)  Each board, or the department when there is no
  2  board, shall adopt rules regarding the security and monitoring
  3  of examinations.  The department shall implement those rules
  4  adopted by the respective boards.  In order to maintain the
  5  security of examinations, the department may employ the
  6  procedures set forth in s. 455.637 to seek fines and
  7  injunctive relief against an examinee who violates the
  8  provisions of s. 455.577 or the rules adopted pursuant to this
  9  paragraph.  The department, or any agent thereof, may, for the
10  purposes of investigation, confiscate any written,
11  photographic, or recording material or device in the
12  possession of the examinee at the examination site which the
13  department deems necessary to enforce such provisions or
14  rules.
15         Section 5.  For the purpose of incorporating the
16  amendment to section 455.637, Florida Statutes, in references
17  thereto, subsection (1) of section 468.1295, Florida Statutes,
18  is reenacted to read:
19         468.1295  Disciplinary proceedings.--
20         (1)  The following acts constitute grounds for both
21  disciplinary actions as set forth in subsection (2) and cease
22  and desist or other related actions by the department as set
23  forth in s. 455.637:
24         (a)  Procuring or attempting to procure a license by
25  bribery, by fraudulent misrepresentation, or through an error
26  of the department or the board.
27         (b)  Having a license revoked, suspended, or otherwise
28  acted against, including denial of licensure, by the licensing
29  authority of another state, territory, or country.
30         (c)  Being convicted or found guilty of, or entering a
31  plea of nolo contendere to, regardless of adjudication, a
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  1  crime in any jurisdiction which directly relates to the
  2  practice of speech-language pathology or audiology.
  3         (d)  Making or filing a report or record which the
  4  licensee knows to be false, intentionally or negligently
  5  failing to file a report or records required by state or
  6  federal law, willfully impeding or obstructing such filing, or
  7  inducing another person to impede or obstruct such filing.
  8  Such report or record shall include only those reports or
  9  records which are signed in one's capacity as a licensed
10  speech-language pathologist or audiologist.
11         (e)  Advertising goods or services in a manner which is
12  fraudulent, false, deceptive, or misleading in form or
13  content.
14         (f)  Being proven guilty of fraud or deceit or of
15  negligence, incompetency, or misconduct in the practice of
16  speech-language pathology or audiology.
17         (g)  Violating a lawful order of the board or
18  department previously entered in a disciplinary hearing, or
19  failing to comply with a lawfully issued subpoena of the board
20  or department.
21         (h)  Practicing with a revoked, suspended, inactive, or
22  delinquent license.
23         (i)  Using, or causing or promoting the use of, any
24  advertising matter, promotional literature, testimonial,
25  guarantee, warranty, label, brand, insignia, or other
26  representation, however disseminated or published, which is
27  misleading, deceiving, or untruthful.
28         (j)  Showing or demonstrating or, in the event of sale,
29  delivery of a product unusable or impractical for the purpose
30  represented or implied by such action.
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  1         (k)  Failing to submit to the board on an annual basis,
  2  or such other basis as may be provided by rule, certification
  3  of testing and calibration of such equipment as designated by
  4  the board and on the form approved by the board.
  5         (l)  Aiding, assisting, procuring, employing, or
  6  advising any licensee or business entity to practice
  7  speech-language pathology or audiology contrary to this part,
  8  part II of chapter 455, or any rule adopted pursuant thereto.
  9         (m)  Violating any provision of this part or part II of
10  chapter 455 or any rule adopted pursuant thereto.
11         (n)  Misrepresenting the professional services
12  available in the fitting, sale, adjustment, service, or repair
13  of a hearing aid, or using any other term or title which might
14  connote the availability of professional services when such
15  use is not accurate.
16         (o)  Representing, advertising, or implying that a
17  hearing aid or its repair is guaranteed without providing full
18  disclosure of the identity of the guarantor; the nature,
19  extent, and duration of the guarantee; and the existence of
20  conditions or limitations imposed upon the guarantee.
21         (p)  Representing, directly or by implication, that a
22  hearing aid utilizing bone conduction has certain specified
23  features, such as the absence of anything in the ear or
24  leading to the ear, or the like, without disclosing clearly
25  and conspicuously that the instrument operates on the bone
26  conduction principle and that in many cases of hearing loss
27  this type of instrument may not be suitable.
28         (q)  Stating or implying that the use of any hearing
29  aid will improve or preserve hearing or prevent or retard the
30  progression of a hearing impairment or that it will have any
31  similar or opposite effect.
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  1         (r)  Making any statement regarding the cure of the
  2  cause of a hearing impairment by the use of a hearing aid.
  3         (s)  Representing or implying that a hearing aid is or
  4  will be "custom-made," "made to order," or
  5  "prescription-made," or in any other sense specially
  6  fabricated for an individual, when such is not the case.
  7         (t)  Canvassing from house to house or by telephone,
  8  either in person or by an agent, for the purpose of selling a
  9  hearing aid, except that contacting persons who have evidenced
10  an interest in hearing aids, or have been referred as in need
11  of hearing aids, shall not be considered canvassing.
12         (u)  Failing to notify the department in writing of a
13  change in current mailing and place-of-practice address within
14  30 days after such change.
15         (v)  Failing to provide all information as described in
16  ss. 468.1225(5)(b), 468.1245(1), and 468.1246.
17         (w)  Exercising influence on a client in such a manner
18  as to exploit the client for financial gain of the licensee or
19  of a third party.
20         (x)  Practicing or offering to practice beyond the
21  scope permitted by law or accepting and performing
22  professional responsibilities the licensee or
23  certificateholder knows, or has reason to know, the licensee
24  or certificateholder is not competent to perform.
25         (y)  Aiding, assisting, procuring, or employing any
26  unlicensed person to practice speech-language pathology or
27  audiology.
28         (z)  Delegating or contracting for the performance of
29  professional responsibilities by a person when the licensee
30  delegating or contracting for performance of such
31  responsibilities knows, or has reason to know, such person is
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  1  not qualified by training, experience, and authorization to
  2  perform them.
  3         (aa)  Committing any act upon a patient or client which
  4  would constitute sexual battery or which would constitute
  5  sexual misconduct as defined pursuant to s. 468.1296.
  6         (bb)  Being unable to practice the profession for which
  7  he or she is licensed or certified under this chapter with
  8  reasonable skill or competence as a result of any mental or
  9  physical condition or by reason of illness, drunkenness, or
10  use of drugs, narcotics, chemicals, or any other substance. In
11  enforcing this paragraph, upon a finding by the secretary, his
12  or her designee, or the board that probable cause exists to
13  believe that the licensee or certificateholder is unable to
14  practice the profession because of the reasons stated in this
15  paragraph, the department shall have the authority to compel a
16  licensee or certificateholder to submit to a mental or
17  physical examination by a physician, psychologist, clinical
18  social worker, marriage and family therapist, or mental health
19  counselor designated by the department or board.  If the
20  licensee or certificateholder refuses to comply with the
21  department's order directing the examination, such order may
22  be enforced by filing a petition for enforcement in the
23  circuit court in the circuit in which the licensee or
24  certificateholder resides or does business.  The department
25  shall be entitled to the summary procedure provided in s.
26  51.011.  A licensee or certificateholder affected under this
27  paragraph shall at reasonable intervals be afforded an
28  opportunity to demonstrate that he or she can resume the
29  competent practice for which he or she is licensed or
30  certified with reasonable skill and safety to patients.
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  1         Section 6.  For the purpose of incorporating the
  2  amendment to section 455.637, Florida Statutes, in references
  3  thereto, subsection (1) of section 484.014, Florida Statutes,
  4  is reenacted to read:
  5         484.014  Disciplinary actions.--
  6         (1)  The following acts relating to the practice of
  7  opticianry shall be grounds for both disciplinary action
  8  against an optician as set forth in this section and cease and
  9  desist or other related action by the department as set forth
10  in s. 455.637 against any person operating an optical
11  establishment who engages in, aids, or abets any such
12  violation:
13         (a)  Procuring or attempting to procure a license by
14  misrepresentation, bribery, or fraud or through an error of
15  the department or the board.
16         (b)  Procuring or attempting to procure a license for
17  any other person by making or causing to be made any false
18  representation.
19         (c)  Making or filing a report or record which the
20  licensee knows to be false, intentionally or negligently
21  failing to file a report or record required by federal or
22  state law, willfully impeding or obstructing such filing, or
23  inducing another person to do so. Such reports or records
24  shall include only those which the person is required to make
25  or file as an optician.
26         (d)  Failing to make fee or price information readily
27  available by providing such information upon request or upon
28  the presentation of a prescription.
29         (e)  Advertising goods or services in a manner which is
30  fraudulent, false, deceptive, or misleading in form or
31  content.
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  1         (f)  Fraud or deceit, or negligence, incompetency, or
  2  misconduct, in the authorized practice of opticianry.
  3         (g)  Violation or repeated violation of this part or of
  4  part II of chapter 455 or any rules promulgated pursuant
  5  thereto.
  6         (h)  Practicing with a revoked, suspended, inactive, or
  7  delinquent license.
  8         (i)  Violation of a lawful order of the board or
  9  department previously entered in a disciplinary hearing or
10  failing to comply with a lawfully issued subpoena of the
11  department.
12         (j)  Violation of any provision of s. 484.012.
13         (k)  Conspiring with another licensee or with any
14  person to commit an act, or committing an act, which would
15  coerce, intimidate, or preclude another licensee from lawfully
16  advertising her or his services.
17         (l)  Willfully submitting to any third-party payor a
18  claim for services which were not provided to a patient.
19         (m)  Failing to keep written prescription files.
20         (n)  Willfully failing to report any person who the
21  licensee knows is in violation of this part or of rules of the
22  department or the board.
23         (o)  Exercising influence on a client in such a manner
24  as to exploit the client for financial gain of the licensee or
25  of a third party.
26         (p)  Gross or repeated malpractice.
27         (q)  Permitting any person not licensed as an optician
28  in this state to fit or dispense any lenses, spectacles,
29  eyeglasses, or other optical devices which are part of the
30  practice of opticianry.
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  1         (r)  Being convicted or found guilty of, or entering a
  2  plea of nolo contendere to, regardless of adjudication, in a
  3  court of this state or other jurisdiction, a crime which
  4  relates to the ability to practice opticianry or to the
  5  practice of opticianry.
  6         (s)  Having been disciplined by a regulatory agency in
  7  another state for any offense that would constitute a
  8  violation of Florida law or rules regulating opticianry.
  9         (t)  Being unable to practice opticianry with
10  reasonable skill and safety by reason of illness or use of
11  drugs, narcotics, chemicals, or any other type of material or
12  as a result of any mental or physical condition. An optician
13  affected under this paragraph shall at reasonable intervals be
14  afforded an opportunity to demonstrate that she or he can
15  resume the competent practice of opticianry with reasonable
16  skill and safety to her or his customers.
17         Section 7.  For the purpose of incorporating the
18  amendment to section 455.637, Florida Statutes, in references
19  thereto, subsection (1) of section 484.056, Florida Statutes,
20  is reenacted to read:
21         484.056  Disciplinary proceedings.--
22         (1)  The following acts relating to the practice of
23  dispensing hearing aids shall be grounds for both disciplinary
24  action against a hearing aid specialist as set forth in this
25  section and cease and desist or other related action by the
26  department as set forth in s. 455.637 against any person
27  owning or operating a hearing aid establishment who engages
28  in, aids, or abets any such violation:
29         (a)  Violation of any provision of s. 455.624(1), s.
30  484.0512, or s. 484.053.
31
                                  16
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    Florida Senate - 2000                           CS for SB 1028
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  1         (b)  Attempting to procure a license to dispense
  2  hearing aids by bribery, by fraudulent misrepresentations, or
  3  through an error of the department or the board.
  4         (c)  Having a license to dispense hearing aids revoked,
  5  suspended, or otherwise acted against, including the denial of
  6  licensure, by the licensing authority of another state,
  7  territory, or country.
  8         (d)  Being convicted or found guilty of, or entering a
  9  plea of nolo contendere to, regardless of adjudication, a
10  crime in any jurisdiction which directly relates to the
11  practice of dispensing hearing aids or the ability to practice
12  dispensing hearing aids, including violations of any federal
13  laws or regulations regarding hearing aids.
14         (e)  Making or filing a report or record which the
15  licensee knows to be false, intentionally or negligently
16  failing to file a report or record required by state or
17  federal law, willfully impeding or obstructing such filing, or
18  inducing another person to impede or obstruct such filing.
19  Such reports or records shall include only those reports or
20  records which are signed in one's capacity as a licensed
21  hearing aid specialist.
22         (f)  Advertising goods or services in a manner which is
23  fraudulent, false, deceptive, or misleading in form or
24  content.
25         (g)  Proof that the licensee is guilty of fraud or
26  deceit or of negligence, incompetency, or misconduct in the
27  practice of dispensing hearing aids.
28         (h)  Violation or repeated violation of this part or of
29  part II of chapter 455, or any rules promulgated pursuant
30  thereto.
31
                                  17
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    Florida Senate - 2000                           CS for SB 1028
    317-1885-00
  1         (i)  Violation of a lawful order of the board or
  2  department previously entered in a disciplinary hearing or
  3  failure to comply with a lawfully issued subpoena of the board
  4  or department.
  5         (j)  Practicing with a revoked, suspended, inactive, or
  6  delinquent license.
  7         (k)  Using, or causing or promoting the use of, any
  8  advertising matter, promotional literature, testimonial,
  9  guarantee, warranty, label, brand, insignia, or other
10  representation, however disseminated or published, which is
11  misleading, deceiving, or untruthful.
12         (l)  Showing or demonstrating, or, in the event of
13  sale, delivery of, a product unusable or impractical for the
14  purpose represented or implied by such action.
15         (m)  Misrepresentation of professional services
16  available in the fitting, sale, adjustment, service, or repair
17  of a hearing aid, or use of the terms "doctor," "clinic,"
18  "clinical," "medical audiologist," "clinical audiologist,"
19  "research audiologist," or "audiologic" or any other term or
20  title which might connote the availability of professional
21  services when such use is not accurate.
22         (n)  Representation, advertisement, or implication that
23  a hearing aid or its repair is guaranteed without providing
24  full disclosure of the identity of the guarantor; the nature,
25  extent, and duration of the guarantee; and the existence of
26  conditions or limitations imposed upon the guarantee.
27         (o)  Representing, directly or by implication, that a
28  hearing aid utilizing bone conduction has certain specified
29  features, such as the absence of anything in the ear or
30  leading to the ear, or the like, without disclosing clearly
31  and conspicuously that the instrument operates on the bone
                                  18
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    Florida Senate - 2000                           CS for SB 1028
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  1  conduction principle and that in many cases of hearing loss
  2  this type of instrument may not be suitable.
  3         (p)  Making any predictions or prognostications as to
  4  the future course of a hearing impairment, either in general
  5  terms or with reference to an individual person.
  6         (q)  Stating or implying that the use of any hearing
  7  aid will improve or preserve hearing or prevent or retard the
  8  progression of a hearing impairment or that it will have any
  9  similar or opposite effect.
10         (r)  Making any statement regarding the cure of the
11  cause of a hearing impairment by the use of a hearing aid.
12         (s)  Representing or implying that a hearing aid is or
13  will be "custom-made," "made to order," or "prescription-made"
14  or in any other sense specially fabricated for an individual
15  person when such is not the case.
16         (t)  Canvassing from house to house or by telephone
17  either in person or by an agent for the purpose of selling a
18  hearing aid, except that contacting persons who have evidenced
19  an interest in hearing aids, or have been referred as in need
20  of hearing aids, shall not be considered canvassing.
21         (u)  Failure to submit to the board on an annual basis,
22  or such other basis as may be provided by rule, certification
23  of testing and calibration of audiometric testing equipment on
24  the form approved by the board.
25         (v)  Failing to provide all information as described in
26  s. 484.051(1).
27         (w)  Exercising influence on a client in such a manner
28  as to exploit the client for financial gain of the licensee or
29  of a third party.
30         Section 8.  Section 455.665, Florida Statutes, is
31  created to read:
                                  19
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    Florida Senate - 2000                           CS for SB 1028
    317-1885-00
  1         455.665  Advertisement by a health care practitioner
  2  for a surgical procedure; required statement.--
  3         (1)  In the text of any written advertisement for a
  4  surgical procedure, the following statement must appear in
  5  capital letters clearly distinguishable from the rest of the
  6  text: "MANY SURGICAL PROCEDURES CARRY RISKS OF UNINTENDED
  7  SERIOUS BODILY INJURY OR DEATH.  CONSULT A LICENSED
  8  PRACTITIONER CONCERNING THESE RISKS BEFORE SUBMITTING TO ANY
  9  SURGERY."
10         (2)  Any advertisement that has an audible component
11  must orally contain the statement required in subsection (1)
12  verbatim.
13         Section 9.  Paragraphs (a) and (g) of subsection (3) of
14  section 921.0022, Florida Statutes, are amended to read:
15         921.0022  Criminal Punishment Code; offense severity
16  ranking chart.--
17         (3)  OFFENSE SEVERITY RANKING CHART
18
19  Florida           Felony
20  Statute           Degree             Description
21
22                              (a)  LEVEL 1
23  24.118(3)(a)       3rd      Counterfeit or altered state
24                              lottery ticket.
25  212.054(2)(b)      3rd      Discretionary sales surtax;
26                              limitations, administration, and
27                              collection.
28  212.15(2)(b)       3rd      Failure to remit sales taxes,
29                              amount greater than $300 but less
30                              than $20,000.
31
                                  20
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    Florida Senate - 2000                           CS for SB 1028
    317-1885-00
  1  319.30(5)          3rd      Sell, exchange, give away
  2                              certificate of title or
  3                              identification number plate.
  4  319.35(1)(a)       3rd      Tamper, adjust, change, etc., an
  5                              odometer.
  6  320.26(1)(a)       3rd      Counterfeit, manufacture, or sell
  7                              registration license plates or
  8                              validation stickers.
  9  322.212(1)         3rd      Possession of forged, stolen,
10                              counterfeit, or unlawfully issued
11                              driver's license; possession of
12                              simulated identification.
13  322.212(4)         3rd      Supply or aid in supplying
14                              unauthorized driver's license or
15                              identification card.
16  322.212(5)(a)      3rd      False application for driver's
17                              license or identification card.
18  370.13(3)(a)       3rd      Molest any stone crab trap, line,
19                              or buoy which is property of
20                              licenseholder.
21  370.135(1)         3rd      Molest any blue crab trap, line,
22                              or buoy which is property of
23                              licenseholder.
24  372.663(1)         3rd      Poach any alligator or
25                              crocodilia.
26  414.39(2)          3rd      Unauthorized use, possession,
27                              forgery, or alteration of food
28                              stamps, Medicaid ID, value
29                              greater than $200.
30
31
                                  21
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    Florida Senate - 2000                           CS for SB 1028
    317-1885-00
  1  414.39(3)(a)       3rd      Fraudulent misappropriation of
  2                              public assistance funds by
  3                              employee/official, value more
  4                              than $200.
  5  443.071(1)         3rd      False statement or representation
  6                              to obtain or increase
  7                              unemployment compensation
  8                              benefits.
  9  458.327(1)(a)      3rd      Unlicensed practice of medicine.
10  466.026(1)(a)      3rd      Unlicensed practice of dentistry
11                              or dental hygiene.
12  509.151(1)         3rd      Defraud an innkeeper, food or
13                              lodging value greater than $300.
14  517.302(1)         3rd      Violation of the Florida
15                              Securities and Investor
16                              Protection Act.
17  562.27(1)          3rd      Possess still or still apparatus.
18  713.69             3rd      Tenant removes property upon
19                              which lien has accrued, value
20                              more than $50.
21  812.014(3)(c)      3rd      Petit theft (3rd conviction);
22                              theft of any property not
23                              specified in subsection (2).
24  812.081(2)         3rd      Unlawfully makes or causes to be
25                              made a reproduction of a trade
26                              secret.
27  815.04(4)(a)       3rd      Offense against intellectual
28                              property (i.e., computer
29                              programs, data).
30  817.52(2)          3rd      Hiring with intent to defraud,
31                              motor vehicle services.
                                  22
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    Florida Senate - 2000                           CS for SB 1028
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  1  826.01             3rd      Bigamy.
  2  828.122(3)         3rd      Fighting or baiting animals.
  3  831.04(1)          3rd      Any erasure, alteration, etc., of
  4                              any replacement deed, map, plat,
  5                              or other document listed in s.
  6                              92.28.
  7  831.31(1)(a)       3rd      Sell, deliver, or possess
  8                              counterfeit controlled
  9                              substances, all but s. 893.03(5)
10                              drugs.
11  832.041(1)         3rd      Stopping payment with intent to
12                              defraud $150 or more.
13  832.05
14   (2)(b)&(4)(c)     3rd      Knowing, making, issuing
15                              worthless checks $150 or more or
16                              obtaining property in return for
17                              worthless check $150 or more.
18  838.015(3)         3rd      Bribery.
19  838.016(1)         3rd      Public servant receiving unlawful
20                              compensation.
21  838.15(2)          3rd      Commercial bribe receiving.
22  838.16             3rd      Commercial bribery.
23  843.18             3rd      Fleeing by boat to elude a law
24                              enforcement officer.
25  847.011(1)(a)      3rd      Sell, distribute, etc., obscene,
26                              lewd, etc., material (2nd
27                              conviction).
28  849.01             3rd      Keeping gambling house.
29
30
31
                                  23
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    Florida Senate - 2000                           CS for SB 1028
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  1  849.09(1)(a)-(d)   3rd      Lottery; set up, promote, etc.,
  2                              or assist therein, conduct or
  3                              advertise drawing for prizes, or
  4                              dispose of property or money by
  5                              means of lottery.
  6  849.23             3rd      Gambling-related machines;
  7                              "common offender" as to property
  8                              rights.
  9  849.25(2)          3rd      Engaging in bookmaking.
10  860.08             3rd      Interfere with a railroad signal.
11  860.13(1)(a)       3rd      Operate aircraft while under the
12                              influence.
13  893.13(2)(a)2.     3rd      Purchase of cannabis.
14  893.13(6)(a)       3rd      Possession of cannabis (more than
15                              20 grams).
16  893.13(7)(a)10.    3rd      Affix false or forged label to
17                              package of controlled substance.
18  934.03(1)(a)       3rd      Intercepts, or procures any other
19                              person to intercept, any wire or
20                              oral communication.
21                              (g)  LEVEL 7
22  316.193(3)(c)2.    3rd      DUI resulting in serious bodily
23                              injury.
24  327.35(3)(c)2.     3rd      Vessel BUI resulting in serious
25                              bodily injury.
26  402.319(2)         2nd      Misrepresentation and negligence
27                              or intentional act resulting in
28                              great bodily harm, permanent
29                              disfiguration, permanent
30                              disability, or death.
31  409.920(2)         3rd      Medicaid provider fraud.
                                  24
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    Florida Senate - 2000                           CS for SB 1028
    317-1885-00
  1  455.637(2)         3rd      Practicing a health care
  2                              profession without a license.
  3  455.637(2)         2nd      Practicing a health care
  4                              profession without a license
  5                              which results in serious bodily
  6                              injury.
  7  458.327(1)         3rd      Practicing medicine without a
  8                              license.
  9  459.013(1)         3rd      Practicing osteopathic medicine
10                              without a license.
11  460.411(1)         3rd      Practicing chiropractic medicine
12                              without a license.
13  461.012(1)         3rd      Practicing podiatric medicine
14                              without a license.
15  462.17             3rd      Practicing naturopathy without a
16                              license.
17  463.015(1)         3rd      Practicing optometry without a
18                              license.
19  464.016(1)         3rd      Practicing nursing without a
20                              license.
21  465.015(2)         3rd      Practicing pharmacy without a
22                              license.
23  466.026(1)         3rd      Practicing dentistry or dental
24                              hygiene without a license.
25  467.201            3rd      Practicing midwifery without a
26                              license.
27  468.366            3rd      Delivering respiratory care
28                              services without a license.
29  483.828(1)         3rd      Practicing as clinical laboratory
30                              personnel without a license.
31
                                  25
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    Florida Senate - 2000                           CS for SB 1028
    317-1885-00
  1  483.901(9)         3rd      Practicing medical physics
  2                              without a license.
  3  484.053            3rd      Dispensing hearing aids without a
  4                              license.
  5  494.0018(2)        1st      Conviction of any violation of
  6                              ss. 494.001-494.0077 in which the
  7                              total money and property
  8                              unlawfully obtained exceeded
  9                              $50,000 and there were five or
10                              more victims.
11  782.051(3)         2nd      Attempted felony murder of a
12                              person by a person other than the
13                              perpetrator or the perpetrator of
14                              an attempted felony.
15  782.07(1)          2nd      Killing of a human being by the
16                              act, procurement, or culpable
17                              negligence of another
18                              (manslaughter).
19  782.071            2nd      Killing of human being or viable
20                              fetus by the operation of a motor
21                              vehicle in a reckless manner
22                              (vehicular homicide).
23  782.072            2nd      Killing of a human being by the
24                              operation of a vessel in a
25                              reckless manner (vessel
26                              homicide).
27  784.045(1)(a)1.    2nd      Aggravated battery; intentionally
28                              causing great bodily harm or
29                              disfigurement.
30  784.045(1)(a)2.    2nd      Aggravated battery; using deadly
31                              weapon.
                                  26
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    Florida Senate - 2000                           CS for SB 1028
    317-1885-00
  1  784.045(1)(b)      2nd      Aggravated battery; perpetrator
  2                              aware victim pregnant.
  3  784.048(4)         3rd      Aggravated stalking; violation of
  4                              injunction or court order.
  5  784.07(2)(d)       1st      Aggravated battery on law
  6                              enforcement officer.
  7  784.08(2)(a)       1st      Aggravated battery on a person 65
  8                              years of age or older.
  9  784.081(1)         1st      Aggravated battery on specified
10                              official or employee.
11  784.082(1)         1st      Aggravated battery by detained
12                              person on visitor or other
13                              detainee.
14  784.083(1)         1st      Aggravated battery on code
15                              inspector.
16  790.07(4)          1st      Specified weapons violation
17                              subsequent to previous conviction
18                              of s. 790.07(1) or (2).
19  790.16(1)          1st      Discharge of a machine gun under
20                              specified circumstances.
21  796.03             2nd      Procuring any person under 16
22                              years for prostitution.
23  800.04(5)(c)1.     2nd      Lewd or lascivious molestation;
24                              victim less than 12 years of age;
25                              offender less than 18 years.
26  800.04(5)(c)2.     2nd      Lewd or lascivious molestation;
27                              victim 12 years of age or older
28                              but less than 16 years; offender
29                              18 years or older.
30  806.01(2)          2nd      Maliciously damage structure by
31                              fire or explosive.
                                  27
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    Florida Senate - 2000                           CS for SB 1028
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  1  810.02(3)(a)       2nd      Burglary of occupied dwelling;
  2                              unarmed; no assault or battery.
  3  810.02(3)(b)       2nd      Burglary of unoccupied dwelling;
  4                              unarmed; no assault or battery.
  5  810.02(3)(d)       2nd      Burglary of occupied conveyance;
  6                              unarmed; no assault or battery.
  7  812.014(2)(a)      1st      Property stolen, valued at
  8                              $100,000 or more; property stolen
  9                              while causing other property
10                              damage; 1st degree grand theft.
11  812.019(2)         1st      Stolen property; initiates,
12                              organizes, plans, etc., the theft
13                              of property and traffics in
14                              stolen property.
15  812.131(2)(a)      2nd      Robbery by sudden snatching.
16  812.133(2)(b)      1st      Carjacking; no firearm, deadly
17                              weapon, or other weapon.
18  825.102(3)(b)      2nd      Neglecting an elderly person or
19                              disabled adult causing great
20                              bodily harm, disability, or
21                              disfigurement.
22  825.1025(2)        2nd      Lewd or lascivious battery upon
23                              an elderly person or disabled
24                              adult.
25  825.103(2)(b)      2nd      Exploiting an elderly person or
26                              disabled adult and property is
27                              valued at $20,000 or more, but
28                              less than $100,000.
29  827.03(3)(b)       2nd      Neglect of a child causing great
30                              bodily harm, disability, or
31                              disfigurement.
                                  28
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    Florida Senate - 2000                           CS for SB 1028
    317-1885-00
  1  827.04(3)          3rd      Impregnation of a child under 16
  2                              years of age by person 21 years
  3                              of age or older.
  4  837.05(2)          3rd      Giving false information about
  5                              alleged capital felony to a law
  6                              enforcement officer.
  7  872.06             2nd      Abuse of a dead human body.
  8  893.13(1)(c)1.     1st      Sell, manufacture, or deliver
  9                              cocaine (or other drug prohibited
10                              under s. 893.03(1)(a), (1)(b),
11                              (1)(d), (2)(a), or (2)(b)) within
12                              1,000 feet of a child care
13                              facility or school.
14  893.13(1)(e)       1st      Sell, manufacture, or deliver
15                              cocaine or other drug prohibited
16                              under s. 893.03(1)(a), (1)(b),
17                              (1)(d), (2)(a), or (2)(b), within
18                              1,000 feet of property used for
19                              religious services or a specified
20                              business site.
21  893.13(4)(a)       1st      Deliver to minor cocaine (or
22                              other s. 893.03(1)(a), (1)(b),
23                              (1)(d), (2)(a), or (2)(b) drugs).
24  893.135(1)(a)1.    1st      Trafficking in cannabis, more
25                              than 50 lbs., less than 2,000
26                              lbs.
27  893.135
28   (1)(b)1.a.        1st      Trafficking in cocaine, more than
29                              28 grams, less than 200 grams.
30
31
                                  29
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    Florida Senate - 2000                           CS for SB 1028
    317-1885-00
  1  893.135
  2   (1)(c)1.a.        1st      Trafficking in illegal drugs,
  3                              more than 4 grams, less than 14
  4                              grams.
  5  893.135
  6   (1)(d)1.          1st      Trafficking in phencyclidine,
  7                              more than 28 grams, less than 200
  8                              grams.
  9  893.135(1)(e)1.    1st      Trafficking in methaqualone, more
10                              than 200 grams, less than 5
11                              kilograms.
12  893.135(1)(f)1.    1st      Trafficking in amphetamine, more
13                              than 14 grams, less than 28
14                              grams.
15  893.135
16   (1)(g)1.a.        1st      Trafficking in flunitrazepam, 4
17                              grams or more, less than 14
18                              grams.
19         Section 10.  This act shall take effect July 1, 2000.
20
21          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
22                         Senate Bill 1028
23
24  The bill revises funding and enforcement by the Department of
    Health of prohibitions against the unlicensed practice of
25  health care professions, creates criminal offenses for the
    unlicensed practice of a health care profession, and requires
26  a minimum mandatory sentence of imprisonment and a monetary
    fine. The bill revises information to be provided in an
27  advertisement for surgical procedures.
28
29
30
31
                                  30