House Bill hb1405er

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  1

  2         An act relating to health care practitioner

  3         student loans and service scholarship

  4         obligations; amending s. 456.074, F.S.;

  5         providing for an emergency order suspending the

  6         license of any health care practitioner who has

  7         defaulted on a student loan issued or

  8         guaranteed by the state or the Federal

  9         Government; amending s. 456.072, F.S., and

10         reenacting subsection (2), relating to

11         disciplinary actions; clarifying the ground for

12         disciplinary action for failing to perform a

13         statutory or legal obligation to include

14         failing to repay a student loan issued or

15         guaranteed by the state or the Federal

16         Government in accordance with the terms of the

17         loan and for failing to comply with service

18         scholarship obligations; providing penalties;

19         directing the Department of Health to obtain

20         certain information from the United States

21         Department of Health and Human Services on a

22         monthly basis and to include certain

23         information in its annual report to the

24         Legislature; reenacting ss. 456.026 and

25         456.073, F.S., relating to the annual report

26         and disciplinary proceedings, respectively, to

27         conform; providing applicability; providing an

28         effective date.

29

30         WHEREAS, the United States Department of Health and

31  Human Services reports that 9,454 health care practitioners in


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  1  the nation and 556 health care practitioners in Florida have

  2  defaulted on educational loan or service scholarship

  3  obligations, and

  4         WHEREAS, the United States Department of Health and

  5  Human Services reports that these defaulters are costing

  6  taxpayers over $694 million, of which $45.6 million is

  7  attributable to Florida health care practitioners, and

  8         WHEREAS, needy communities lose the services of

  9  essential clinicians when practitioners fail to meet their

10  service obligations, and

11         WHEREAS, because these defaulters have received the

12  substantial economic benefits of a health practitioner career

13  education at taxpayer expense, it is imperative that they be

14  required to honor their service obligations and repay their

15  student loans, and

16         WHEREAS, because health care practitioners are licensed

17  by the states and not the Federal Government, it is

18  anticipated that having state discipline of these defaulters

19  will motivate the defaulters to honor their commitments and

20  deter others from defaulting on their student loans and

21  service obligations, and

22         WHEREAS, taxpayers should not have to foot the bill for

23  individuals who have reneged on the repayment obligation of a

24  federal or state loan or scholarship which gave them access to

25  a career as a health care practitioner, and

26         WHEREAS, these defaulters have been or will be excluded

27  from participating in Medicare and Medicaid programs and,

28  therefore, are unable to practice in many of the neediest and

29  most underserved areas, and

30         WHEREAS, these defaulters would not be practicing as

31  health care practitioners had the programs not been available


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  1  to help finance their education; and, while it is not possible

  2  to "repossess" the education these programs allowed them to

  3  obtain, it is possible to "repossess" the results of that

  4  education by suspending their ability to practice through

  5  suspension of their licenses, and

  6         WHEREAS, current Florida law provides recourse only for

  7  certain state loans through s. 381.0302, Florida Statutes, and

  8  does not address federal educational loan and service

  9  scholarship defaulters, NOW, THEREFORE,

10

11  Be It Enacted by the Legislature of the State of Florida:

12

13         Section 1.  Subsection (4) is added to section 456.074,

14  Florida Statutes, to read:

15         456.074  Certain health care practitioners; immediate

16  suspension of license.--

17         (4)  Upon receipt of information that a

18  Florida-licensed health care practitioner has defaulted on a

19  student loan issued or guaranteed by the state or the Federal

20  Government, the department shall notify the licensee by

21  certified mail that he or she shall be subject to immediate

22  suspension of license unless, within 45 days after the date of

23  mailing, the licensee provides proof that new payment terms

24  have been agreed upon by all parties to the loan.  The

25  department shall issue an emergency order suspending the

26  license of any licensee who, after 45 days following the date

27  of mailing from the department, has failed to provide such

28  proof.  Production of such proof shall not prohibit the

29  department from proceeding with disciplinary action against

30  the licensee pursuant to s. 456.073.

31


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  1         Section 2.  Paragraph (k) of subsection (1) of section

  2  456.072, Florida Statutes, is amended, and subsection (2) of

  3  said section is reenacted, to read:

  4         456.072  Grounds for discipline; penalties;

  5  enforcement.--

  6         (1)  The following acts shall constitute grounds for

  7  which the disciplinary actions specified in subsection (2) may

  8  be taken:

  9         (k)  Failing to perform any statutory or legal

10  obligation placed upon a licensee.  For purposes of this

11  section, failing to repay a student loan issued or guaranteed

12  by the state or the Federal Government in accordance with the

13  terms of the loan or failing to comply with service

14  scholarship obligations shall be considered a failure to

15  perform a statutory or legal obligation, and the minimum

16  disciplinary action imposed shall be a suspension of the

17  license until new payment terms are agreed upon or the

18  scholarship obligation is resumed, followed by probation for

19  the duration of the student loan or remaining scholarship

20  obligation period, and a fine equal to 10 percent of the

21  defaulted loan amount.  Fines collected shall be deposited

22  into the Medical Quality Assurance Trust Fund.

23         (2)  When the board, or the department when there is no

24  board, finds any person guilty of the grounds set forth in

25  subsection (1) or of any grounds set forth in the applicable

26  practice act, including conduct constituting a substantial

27  violation of subsection (1) or a violation of the applicable

28  practice act which occurred prior to obtaining a license, it

29  may enter an order imposing one or more of the following

30  penalties:

31


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  1         (a)  Refusal to certify, or to certify with

  2  restrictions, an application for a license.

  3         (b)  Suspension or permanent revocation of a license.

  4         (c)  Restriction of practice or license, including, but

  5  not limited to, restricting the licensee from practicing in

  6  certain settings, restricting the licensee to work only under

  7  designated conditions or in certain settings, restricting the

  8  licensee from performing or providing designated clinical and

  9  administrative services, restricting the licensee from

10  practicing more than a designated number of hours, or any

11  other restriction found to be necessary for the protection of

12  the public health, safety, and welfare.

13         (d)  Imposition of an administrative fine not to exceed

14  $10,000 for each count or separate offense. If the violation

15  is for fraud or making a false or fraudulent representation,

16  the board, or the department if there is no board, must impose

17  a fine of $10,000 per count or offense.

18         (e)  Issuance of a reprimand or letter of concern.

19         (f)  Placement of the licensee on probation for a

20  period of time and subject to such conditions as the board, or

21  the department when there is no board, may specify. Those

22  conditions may include, but are not limited to, requiring the

23  licensee to undergo treatment, attend continuing education

24  courses, submit to be reexamined, work under the supervision

25  of another licensee, or satisfy any terms which are reasonably

26  tailored to the violations found.

27         (g)  Corrective action.

28         (h)  Imposition of an administrative fine in accordance

29  with s. 381.0261 for violations regarding patient rights.

30         (i)  Refund of fees billed and collected from the

31  patient or a third party on behalf of the patient.


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  1         (j)  Requirement that the practitioner undergo remedial

  2  education.

  3

  4  In determining what action is appropriate, the board, or

  5  department when there is no board, must first consider what

  6  sanctions are necessary to protect the public or to compensate

  7  the patient. Only after those sanctions have been imposed may

  8  the disciplining authority consider and include in the order

  9  requirements designed to rehabilitate the practitioner. All

10  costs associated with compliance with orders issued under this

11  subsection are the obligation of the practitioner.

12         Section 3.  The Department of Health shall obtain from

13  the United States Department of Health and Human Services

14  information necessary to investigate and prosecute health care

15  practitioners for failing to repay a student loan or comply

16  with scholarship service obligations pursuant to s.

17  456.072(1)(k), Florida Statutes.  The department shall obtain

18  from the United States Department of Health and Human Services

19  a list of default health care practitioners each month, along

20  with the information necessary to investigate a complaint in

21  accordance with s. 456.073, Florida Statutes.  The department

22  may obtain evidence to support the investigation and

23  prosecution from any financial institution or educational

24  institution involved in providing the loan or education to the

25  practitioner.  The department shall report to the Legislature

26  as part of the annual report required by s. 456.026, Florida

27  Statutes, the number of practitioners in default, along with

28  the results of the department's investigations and

29  prosecutions, and the amount of fines collected from

30  practitioners prosecuted for violating s. 456.072(1)(k),

31  Florida Statutes.


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  1         Section 4.  Section 456.026, Florida Statutes, is

  2  reenacted to read:

  3         456.026  Annual report concerning finances,

  4  administrative complaints, disciplinary actions, and

  5  recommendations.--The department is directed to prepare and

  6  submit a report to the President of the Senate and the Speaker

  7  of the House of Representatives by November 1 of each year. In

  8  addition to finances and any other information the Legislature

  9  may require, the report shall include statistics and relevant

10  information, profession by profession, detailing:

11         (1)  The revenues, expenditures, and cash balances for

12  the prior year, and a review of the adequacy of existing fees.

13         (2)  The number of complaints received and

14  investigated.

15         (3)  The number of findings of probable cause made.

16         (4)  The number of findings of no probable cause made.

17         (5)  The number of administrative complaints filed.

18         (6)  The disposition of all administrative complaints.

19         (7)  A description of disciplinary actions taken.

20         (8)  A description of any effort by the department to

21  reduce or otherwise close any investigation or disciplinary

22  proceeding not before the Division of Administrative Hearings

23  under chapter 120 or otherwise not completed within 1 year

24  after the initial filing of a complaint under this chapter.

25         (9)  The status of the development and implementation

26  of rules providing for disciplinary guidelines pursuant to s.

27  456.079.

28         (10)  Such recommendations for administrative and

29  statutory changes necessary to facilitate efficient and

30  cost-effective operation of the department and the various

31  boards.


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  1         Section 5.  Section 456.073, Florida Statutes, is

  2  reenacted to read:

  3         456.073  Disciplinary proceedings.--Disciplinary

  4  proceedings for each board shall be within the jurisdiction of

  5  the department.

  6         (1)  The department, for the boards under its

  7  jurisdiction, shall cause to be investigated any complaint

  8  that is filed before it if the complaint is in writing, signed

  9  by the complainant, and legally sufficient. A complaint is

10  legally sufficient if it contains ultimate facts that show

11  that a violation of this chapter, of any of the practice acts

12  relating to the professions regulated by the department, or of

13  any rule adopted by the department or a regulatory board in

14  the department has occurred. In order to determine legal

15  sufficiency, the department may require supporting information

16  or documentation. The department may investigate, and the

17  department or the appropriate board may take appropriate final

18  action on, a complaint even though the original complainant

19  withdraws it or otherwise indicates a desire not to cause the

20  complaint to be investigated or prosecuted to completion. The

21  department may investigate an anonymous complaint if the

22  complaint is in writing and is legally sufficient, if the

23  alleged violation of law or rules is substantial, and if the

24  department has reason to believe, after preliminary inquiry,

25  that the violations alleged in the complaint are true. The

26  department may investigate a complaint made by a confidential

27  informant if the complaint is legally sufficient, if the

28  alleged violation of law or rule is substantial, and if the

29  department has reason to believe, after preliminary inquiry,

30  that the allegations of the complainant are true. The

31  department may initiate an investigation if it has reasonable


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  1  cause to believe that a licensee or a group of licensees has

  2  violated a Florida statute, a rule of the department, or a

  3  rule of a board. Except as provided in ss. 458.331(9),

  4  459.015(9), 460.413(5), and 461.013(6), when an investigation

  5  of any subject is undertaken, the department shall promptly

  6  furnish to the subject or the subject's attorney a copy of the

  7  complaint or document that resulted in the initiation of the

  8  investigation. The subject may submit a written response to

  9  the information contained in such complaint or document within

10  20 days after service to the subject of the complaint or

11  document. The subject's written response shall be considered

12  by the probable cause panel. The right to respond does not

13  prohibit the issuance of a summary emergency order if

14  necessary to protect the public. However, if the secretary, or

15  the secretary's designee, and the chair of the respective

16  board or the chair of its probable cause panel agree in

17  writing that such notification would be detrimental to the

18  investigation, the department may withhold notification. The

19  department may conduct an investigation without notification

20  to any subject if the act under investigation is a criminal

21  offense.

22         (2)  The department shall allocate sufficient and

23  adequately trained staff to expeditiously and thoroughly

24  determine legal sufficiency and investigate all legally

25  sufficient complaints. For purposes of this section, it is the

26  intent of the Legislature that the term "expeditiously" means

27  that the department complete the report of its initial

28  investigative findings and recommendations concerning the

29  existence of probable cause within 6 months after its receipt

30  of the complaint. The failure of the department, for

31  disciplinary cases under its jurisdiction, to comply with the


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  1  time limits of this section while investigating a complaint

  2  against a licensee constitutes harmless error in any

  3  subsequent disciplinary action unless a court finds that

  4  either the fairness of the proceeding or the correctness of

  5  the action may have been impaired by a material error in

  6  procedure or a failure to follow prescribed procedure. When

  7  its investigation is complete and legally sufficient, the

  8  department shall prepare and submit to the probable cause

  9  panel of the appropriate regulatory board the investigative

10  report of the department. The report shall contain the

11  investigative findings and the recommendations of the

12  department concerning the existence of probable cause. The

13  department shall not recommend a letter of guidance in lieu of

14  finding probable cause if the subject has already been issued

15  a letter of guidance for a related offense. At any time after

16  legal sufficiency is found, the department may dismiss any

17  case, or any part thereof, if the department determines that

18  there is insufficient evidence to support the prosecution of

19  allegations contained therein. The department shall provide a

20  detailed report to the appropriate probable cause panel prior

21  to dismissal of any case or part thereof, and to the subject

22  of the complaint after dismissal of any case or part thereof,

23  under this section. For cases dismissed prior to a finding of

24  probable cause, such report is confidential and exempt from s.

25  119.07(1). The probable cause panel shall have access, upon

26  request, to the investigative files pertaining to a case prior

27  to dismissal of such case. If the department dismisses a case,

28  the probable cause panel may retain independent legal counsel,

29  employ investigators, and continue the investigation and

30  prosecution of the case as it deems necessary.

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  1         (3)  As an alternative to the provisions of subsections

  2  (1) and (2), when a complaint is received, the department may

  3  provide a licensee with a notice of noncompliance for an

  4  initial offense of a minor violation. Each board, or the

  5  department if there is no board, shall establish by rule those

  6  minor violations under this provision which do not endanger

  7  the public health, safety, and welfare and which do not

  8  demonstrate a serious inability to practice the profession.

  9  Failure of a licensee to take action in correcting the

10  violation within 15 days after notice may result in the

11  institution of regular disciplinary proceedings.

12         (4)  The determination as to whether probable cause

13  exists shall be made by majority vote of a probable cause

14  panel of the board, or by the department, as appropriate. Each

15  regulatory board shall provide by rule that the determination

16  of probable cause shall be made by a panel of its members or

17  by the department. Each board may provide by rule for multiple

18  probable cause panels composed of at least two members. Each

19  board may provide by rule that one or more members of the

20  panel or panels may be a former board member. The length of

21  term or repetition of service of any such former board member

22  on a probable cause panel may vary according to the direction

23  of the board when authorized by board rule. Any probable cause

24  panel must include one of the board's former or present

25  consumer members, if one is available, is willing to serve,

26  and is authorized to do so by the board chair. Any probable

27  cause panel must include a present board member. Any probable

28  cause panel must include a former or present professional

29  board member. However, any former professional board member

30  serving on the probable cause panel must hold an active valid

31  license for that profession. All proceedings of the panel are


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  1  exempt from s. 286.011 until 10 days after probable cause has

  2  been found to exist by the panel or until the subject of the

  3  investigation waives his or her privilege of confidentiality.

  4  The probable cause panel may make a reasonable request, and

  5  upon such request the department shall provide such additional

  6  investigative information as is necessary to the determination

  7  of probable cause. A request for additional investigative

  8  information shall be made within 15 days from the date of

  9  receipt by the probable cause panel of the investigative

10  report of the department or the agency. The probable cause

11  panel or the department, as may be appropriate, shall make its

12  determination of probable cause within 30 days after receipt

13  by it of the final investigative report of the department. The

14  secretary may grant extensions of the 15-day and the 30-day

15  time limits. In lieu of a finding of probable cause, the

16  probable cause panel, or the department if there is no board,

17  may issue a letter of guidance to the subject. If, within the

18  30-day time limit, as may be extended, the probable cause

19  panel does not make a determination regarding the existence of

20  probable cause or does not issue a letter of guidance in lieu

21  of a finding of probable cause, the department must make a

22  determination regarding the existence of probable cause within

23  10 days after the expiration of the time limit.  If the

24  probable cause panel finds that probable cause exists, it

25  shall direct the department to file a formal complaint against

26  the licensee. The department shall follow the directions of

27  the probable cause panel regarding the filing of a formal

28  complaint. If directed to do so, the department shall file a

29  formal complaint against the subject of the investigation and

30  prosecute that complaint pursuant to chapter 120. However, the

31  department may decide not to prosecute the complaint if it


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  1  finds that probable cause has been improvidently found by the

  2  panel. In such cases, the department shall refer the matter to

  3  the board. The board may then file a formal complaint and

  4  prosecute the complaint pursuant to chapter 120. The

  5  department shall also refer to the board any investigation or

  6  disciplinary proceeding not before the Division of

  7  Administrative Hearings pursuant to chapter 120 or otherwise

  8  completed by the department within 1 year after the filing of

  9  a complaint. The department, for disciplinary cases under its

10  jurisdiction, must establish a uniform reporting system to

11  quarterly refer to each board the status of any investigation

12  or disciplinary proceeding that is not before the Division of

13  Administrative Hearings or otherwise completed by the

14  department within 1 year after the filing of the complaint.

15  Annually, the department, in consultation with the applicable

16  probable cause panel, must establish a plan to expedite or

17  otherwise close any investigation or disciplinary proceeding

18  that is not before the Division of Administrative Hearings or

19  otherwise completed by the department within 1 year after the

20  filing of the complaint.  A probable cause panel or a board

21  may retain independent legal counsel, employ investigators,

22  and continue the investigation as it deems necessary; all

23  costs thereof shall be paid from a trust fund used by the

24  department to implement this chapter. All proceedings of the

25  probable cause panel are exempt from s. 120.525.

26         (5)  A formal hearing before an administrative law

27  judge from the Division of Administrative Hearings shall be

28  held pursuant to chapter 120 if there are any disputed issues

29  of material fact. The administrative law judge shall issue a

30  recommended order pursuant to chapter 120. If any party raises

31  an issue of disputed fact during an informal hearing, the


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  1  hearing shall be terminated and a formal hearing pursuant to

  2  chapter 120 shall be held.

  3         (6)  The appropriate board, with those members of the

  4  panel, if any, who reviewed the investigation pursuant to

  5  subsection (4) being excused, or the department when there is

  6  no board, shall determine and issue the final order in each

  7  disciplinary case. Such order shall constitute final agency

  8  action. Any consent order or agreed-upon settlement shall be

  9  subject to the approval of the department.

10         (7)  The department shall have standing to seek

11  judicial review of any final order of the board, pursuant to

12  s. 120.68.

13         (8)  Any proceeding for the purpose of summary

14  suspension of a license, or for the restriction of the

15  license, of a licensee pursuant to s. 120.60(6) shall be

16  conducted by the secretary of the Department of Health or his

17  or her designee, as appropriate, who shall issue the final

18  summary order.

19         (9)(a)  The department shall periodically notify the

20  person who filed the complaint, as well as the patient or the

21  patient's legal representative, of the status of the

22  investigation, indicating whether probable cause has been

23  found and the status of any civil action or administrative

24  proceeding or appeal.

25         (b)  In any disciplinary case for which probable cause

26  has been found, the department shall provide to the person who

27  filed the complaint a copy of the administrative complaint

28  and:

29         1.  A written explanation of how an administrative

30  complaint is resolved by the disciplinary process.

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  1         2.  A written explanation of how and when the person

  2  may participate in the disciplinary process.

  3         3.  A written notice of any hearing before the Division

  4  of Administrative Hearings or the regulatory board at which

  5  final agency action may be taken.

  6         (c)  In any disciplinary case for which probable cause

  7  is not found, the department shall so inform the person who

  8  filed the complaint and notify that person that he or she may,

  9  within 60 days, provide any additional information to the

10  department which may be relevant to the decision. To

11  facilitate the provision of additional information, the person

12  who filed the complaint may receive, upon request, a copy of

13  the department's expert report that supported the

14  recommendation for closure, if such a report was relied upon

15  by the department. In no way does this require the department

16  to procure an expert opinion or report if none was used.

17  Additionally, the identity of the expert shall remain

18  confidential. In any administrative proceeding under s.

19  120.57, the person who filed the disciplinary complaint shall

20  have the right to present oral or written communication

21  relating to the alleged disciplinary violations or to the

22  appropriate penalty.

23         (10)  The complaint and all information obtained

24  pursuant to the investigation by the department are

25  confidential and exempt from s. 119.07(1) until 10 days after

26  probable cause has been found to exist by the probable cause

27  panel or by the department, or until the regulated

28  professional or subject of the investigation waives his or her

29  privilege of confidentiality, whichever occurs first. Upon

30  completion of the investigation and a recommendation by the

31  department to find probable cause, and pursuant to a written


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  1  request by the subject or the subject's attorney, the

  2  department shall provide the subject an opportunity to inspect

  3  the investigative file or, at the subject's expense, forward

  4  to the subject a copy of the investigative file.

  5  Notwithstanding s. 456.057, the subject may inspect or receive

  6  a copy of any expert witness report or patient record

  7  connected with the investigation if the subject agrees in

  8  writing to maintain the confidentiality of any information

  9  received under this subsection until 10 days after probable

10  cause is found and to maintain the confidentiality of patient

11  records pursuant to s. 456.057. The subject may file a written

12  response to the information contained in the investigative

13  file. Such response must be filed within 20 days of mailing by

14  the department, unless an extension of time has been granted

15  by the department. This subsection does not prohibit the

16  department from providing such information to any law

17  enforcement agency or to any other regulatory agency.

18         (11)  A privilege against civil liability is hereby

19  granted to any complainant or any witness with regard to

20  information furnished with respect to any investigation or

21  proceeding pursuant to this section, unless the complainant or

22  witness acted in bad faith or with malice in providing such

23  information.

24         (12)(a)  No person who reports in any capacity, whether

25  or not required by law, information to the department with

26  regard to the incompetence, impairment, or unprofessional

27  conduct of any health care provider licensed under chapter

28  458, chapter 459, chapter 460, chapter 461, chapter 462,

29  chapter 463, chapter 464, chapter 465, or chapter 466 shall be

30  held liable in any civil action for reporting against such

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  1  health care provider if such person acts without intentional

  2  fraud or malice.

  3         (b)  No facility licensed under chapter 395, health

  4  maintenance organization certificated under part I of chapter

  5  641, physician licensed under chapter 458, or osteopathic

  6  physician licensed under chapter 459 shall discharge, threaten

  7  to discharge, intimidate, or coerce any employee or staff

  8  member by reason of such employee's or staff member's report

  9  to the department about a physician licensed under chapter

10  458, chapter 459, chapter 460, chapter 461, or chapter 466 who

11  may be guilty of incompetence, impairment, or unprofessional

12  conduct so long as such report is given without intentional

13  fraud or malice.

14         (c)  In any civil suit brought outside the protections

15  of paragraphs (a) and (b) in which intentional fraud or malice

16  is alleged, the person alleging intentional fraud or malice

17  shall be liable for all court costs and for the other party's

18  reasonable attorney's fees if intentional fraud or malice is

19  not proved.

20         (13)  Notwithstanding any provision of law to the

21  contrary, an administrative complaint against a licensee shall

22  be filed within 6 years after the time of the incident or

23  occurrence giving rise to the complaint against the licensee.

24  If such incident or occurrence involved criminal actions,

25  diversion of controlled substances, sexual misconduct, or

26  impairment by the licensee, this subsection does not apply to

27  bar initiation of an investigation or filing of an

28  administrative complaint beyond the 6-year timeframe. In those

29  cases covered by this subsection in which it can be shown that

30  fraud, concealment, or intentional misrepresentation of fact

31  prevented the discovery of the violation of law, the period of


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    ENROLLED

    2002 Legislature                                       HB 1405



  1  limitations is extended forward, but in no event to exceed 12

  2  years after the time of the incident or occurrence.

  3         Section 6.  This act shall take effect upon becoming a

  4  law and shall apply to any loan or scholarship that is in

  5  default on or after the effective date.

  6

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