House Bill hb0015Ec1

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    Florida House of Representatives - 2002             CS/HB 15-E

        By the Committee on Health & Human Services Appropriations
    and Representatives Crow and Fasano





  1                      A bill to be entitled

  2         An act relating to health care; providing for

  3         specified licensing boards to adopt rules

  4         governing the prescribing of controlled

  5         substances in emergency department settings;

  6         requiring certain health care providers to

  7         complete education courses relating to the

  8         prescription and pharmacology of controlled

  9         substances; providing penalties; providing for

10         the emergency suspension of certain licenses

11         for prescribing violations; requiring law

12         enforcement agencies, the Department of Health,

13         the Medical Examiners Commission within the

14         Department of Law Enforcement, the statewide

15         prosecutor, and state attorneys to share

16         certain information regarding health care

17         practitioners; requiring a study and a report;

18         requiring the Department of Health to establish

19         an electronic system to monitor the prescribing

20         of certain controlled substances; establishing

21         an advisory council and providing for its

22         membership, duties, staff, and compensation;

23         providing funding provisions for

24         implementation; amending s. 456.033, F.S.;

25         eliminating certain requirements for HIV and

26         AIDS education courses; repealing ss.

27         458.319(4) and 459.008(5), F.S., relating to

28         continuing education requirements for renewal

29         of licensure by physicians and osteopathic

30         physicians, to conform; amending s. 456.072,

31         F.S.; revising disciplinary penalties

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    Florida House of Representatives - 2002             CS/HB 15-E

    611-186-02E






 1         applicable to health care practitioners;

 2         reenacting ss. 456.082(2), 457.109(1) and (2),

 3         458.331(1) and (2), 458.347(7)(g), 459.015(1)

 4         and (2), 459.022(7)(f), 460.413(1) and (2),

 5         461.013(1) and (2), 462.14(1) and (2),

 6         463.016(1) and (2), 464.018(1) and (2),

 7         465.016(1) and (2), 466.028(1) and (2),

 8         467.203(1) and (2), 468.1295(1) and (2),

 9         468.1755(1) and (2), 468.217(1) and (2),

10         468.365(1) and (2), 468.518(1) and (2),

11         468.719, 468.811, 478.52(1) and (2), 480.046(1)

12         and (2), 483.825(1) and (2), 483.901(6)(g) and

13         (h), 484.014(1) and (2), 484.056(1) and (2)(a),

14         486.125(1) and (2), 490.009, and 491.009, F.S.,

15         relating to grounds for disciplinary action

16         applicable to persons involved in health care

17         practice, including acupuncture, medical

18         practice, osteopathic medicine, chiropractic

19         medicine, podiatric medicine, naturopathy,

20         optometry, nursing, pharmacy, dentistry,

21         midwifery, speech-language pathology and

22         audiology, nursing home administration,

23         occupational therapy, respiratory therapy,

24         dietetics and nutrition practice, athletic

25         trainers, orthotics, prosthetics, and

26         pedorthics, electrolysis, massage practice,

27         clinical laboratory personnel, medical

28         physicists, dispensing of optical devices and

29         hearing aids, physical therapy practice,

30         psychological services, and clinical,

31         counseling, and psychotherapy services, to

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    Florida House of Representatives - 2002             CS/HB 15-E

    611-186-02E






 1         incorporate the amendment to s. 456.072, F.S.,

 2         in references thereto; amending s. 458.345,

 3         F.S.; requiring certain resident physicians,

 4         interns, and fellows to complete an educational

 5         course in the prescribing and pharmacology of

 6         controlled substances; amending s. 461.013,

 7         F.S.; prohibiting the presigning of blank

 8         prescription forms and providing penalties;

 9         amending s. 893.04, F.S.; providing additional

10         requirements for pharmacists regarding the

11         identification of persons to whom controlled

12         substances are dispensed; prohibiting certain

13         prescribing practitioners from possessing,

14         administering, dispensing, or prescribing

15         controlled substances; amending s. 499.007,

16         F.S.; revising provisions relating to

17         misbranded drugs and devices; prohibiting

18         school personnel from recommending the use of

19         psychotropic drugs for any student; providing a

20         contingent effective date.

21  

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

23  

24         Section 1.  Physicians; rules establishing prescribing

25  guidelines.--To minimize the diversion and resultant abuse of

26  controlled substances, the Board of Medicine and the Board of

27  Osteopathic Medicine shall adopt rules pursuant to ss.

28  120.536(1) and 120.574, Florida Statutes, to establish

29  guidelines for prescribing controlled substances to patients

30  in emergency department settings. Such guidelines must allow

31  physicians to provide legitimate medical treatment of acute

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    Florida House of Representatives - 2002             CS/HB 15-E

    611-186-02E






 1  and chronic pain and require them to recognize and prevent

 2  abuse of pain medications prescribed in emergency department

 3  settings. The guidelines must also consider requirements of

 4  state and federal law and of the Joint Commission on

 5  Accreditation of Healthcare Organizations. Each board shall

 6  consult with the Florida College of Emergency Physicians in

 7  developing these guidelines.

 8         Section 2.  Instruction required for certain licensees

 9  in prescribing and pharmacology.--

10         (1)  The appropriate professional licensing board shall

11  require each person licensed under chapter 458, chapter 459,

12  chapter 461, chapter 462, part I of chapter 464, or chapter

13  466, Florida Statutes, to complete a 1-hour educational

14  course, approved by the board, on appropriate prescribing and

15  pharmacology of controlled substances, as part of the

16  licensee's initial license renewal after January 1, 2003. The

17  course shall provide education in the state and federal laws

18  and rules governing the prescribing and dispensing of

19  controlled substances; in appropriate evaluation of patients

20  for any risk of drug diversion and the resulting abuse of

21  controlled substances; in the use of informed consent and

22  other protocols, such as discussing the risks and benefits of

23  using controlled substances with patients to prevent drug

24  diversion; in the need to keep accurate and complete medical

25  records to justify treatment with controlled substances; in

26  addiction and substance abuse issues with respect to patients;

27  in the appropriate use of recognized pain management

28  guidelines; and in the need for consultation and referral of

29  patients who are at risk for misuse of medication or diversion

30  of controlled substances, when appropriate.

31  

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    Florida House of Representatives - 2002             CS/HB 15-E

    611-186-02E






 1         (2)  The board may approve additional equivalent

 2  courses that satisfy the requirements of subsection (1). Each

 3  licensing board that requires a licensee to complete an

 4  educational course pursuant to this section shall include the

 5  hours required to complete the course in the total required

 6  continuing educational requirements.

 7         (3)  Any person who holds two or more licenses subject

 8  to this section may satisfy the requirements of this section

 9  by taking only one such board-approved course for relicensure

10  of all such licenses.

11         (4)  A licensee who fails to comply with this section

12  is subject to disciplinary action under each respective

13  practice act and s. 456.072(1)(k), Florida Statutes. In

14  addition to disciplinary action by the board, the licensee

15  must complete the course or forfeit the privilege to prescribe

16  or dispense controlled substances not later than 1 year after

17  first notice of disciplinary action under this subsection.

18         (5)  The board shall require, as a condition of

19  granting a license under the chapter specified in subsection

20  (1), that an applicant for initial licensure complete an

21  educational course set forth in subsection (1). An applicant

22  who has not taken a course at the time of licensure shall be

23  allowed 6 months within which to complete this requirement.

24         (6)  The board may adopt rules pursuant to ss.

25  120.536(1) and 120.574, Florida Statutes, necessary to

26  administer this section.

27         Section 3.  Emergency suspension orders; controlled

28  substances.--Upon receipt of sufficient evidence from any

29  agency authorized to enforce chapter 893, Florida Statutes,

30  regarding a violation of s. 458.331(1)(q), (r), or (aa), s.

31  459.015(1)(t), (u), or (ee), s. 461.013(1)(o), (p), or (cc),

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    Florida House of Representatives - 2002             CS/HB 15-E

    611-186-02E






 1  s. 462.14(1)(q), (r), or (aa), s. 464.018(1)(i), s.

 2  465.016(1)(e) or (i), s. 466.028(1)(p), (q), (r), or (dd), or

 3  of chapter 893, Florida Statutes, by a licensed health care

 4  practitioner who is authorized to prescribe, dispense, or

 5  administer controlled substances, the Department of Health

 6  shall review the case and, if there is reason to believe that

 7  the practitioner is a danger to the public health, safety, or

 8  welfare as set forth in s. 120.60(6), Florida Statutes, shall

 9  recommend the suspension or restriction of the practitioner's

10  license to the Secretary of Health within 10 working days

11  after receiving such evidence. If a sufficient basis is found

12  to exist, the Secretary of Health shall suspend or restrict

13  the license of the practitioner in accordance with s.

14  120.60(6), Florida Statutes.

15         Section 4.  Sharing of arrest, formal charging, and

16  other information regarding health care practitioners.--

17         (1)  In order to facilitate the efficiency of the

18  Department of Health's investigation of applicable violations

19  involving the diversion of controlled substances by health

20  care practitioners, or other violations of criminal law that

21  may adversely affect a practitioner's licensed practice, any

22  law enforcement agency that arrests a person known or

23  suspected to be a health care practitioner licensed by the

24  state shall promptly notify the Department of Health and

25  provide it with:

26         (a)  Notice of the arrest, including the name of the

27  arresting agency and lead investigator, detective, or officer

28  in the case.

29         (b)  The name of the person charged.

30         (c)  All known personal identifying information related

31  to the person arrested.

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (d)  The date of the arrest.

 2         (e)  The charges for which the person is arrested.

 3         (f)  The agency case number assigned to the arrest.

 4         (g)  The arrest report, investigative report, or

 5  statement of the allegations supporting the arrest.

 6         (2)  A state attorney or the statewide prosecutor, upon

 7  the filing of an indictment or information against a person

 8  known or suspected to be a health care practitioner licensed

 9  by the state, shall forward a copy of the indictment or

10  information to the Department of Health.

11         (3)  The Medical Examiners Commission within the

12  Department of Law Enforcement shall report to the Department

13  of Health quarterly any information in its possession

14  regarding the deaths of persons who had lethal levels of

15  controlled substances in their bodies as such information has

16  been reported to the commission by the medical examiners

17  within the state.

18         (4)  Upon receipt of arrest information from a law

19  enforcement agency or notice of formal charging by a

20  prosecuting entity, the Department of Health or the board

21  having regulatory authority over the practitioner shall

22  investigate any information received and determine whether it

23  has reasonable grounds to believe that the practitioner has

24  violated any law or rule relating to the practitioner's

25  practice and shall take appropriate licensure action as

26  provided by law or rule. If the Department of Health receives

27  information pursuant to this section which suggests that the

28  person arrested or charged is also licensed by the state in

29  another field or profession, the Department of Health shall

30  forward such information to the appropriate licensing entity

31  

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    Florida House of Representatives - 2002             CS/HB 15-E

    611-186-02E






 1  for review and appropriate licensure action as provided by law

 2  or rule.

 3         (5)  To help the Department of Health and regulatory

 4  boards control the diversion and resultant abuse of controlled

 5  substances, the Department of Health and the Department of Law

 6  Enforcement shall study the feasibility of expanding the

 7  electronic exchange of information to facilitate the transfer

 8  to the Department of Health of criminal history information

 9  involving licensed health care practitioners who are

10  authorized to prescribe, administer, or dispense controlled

11  substances. The study must address whether the collection and

12  retention of fingerprint information concerning licensed

13  health care practitioners subject to the provisions of ss.

14  456.039-456.046, Florida Statutes, and related provisions is

15  advisable as a means of better regulating such practitioners

16  and guarding against abuse of the privileges of such licensure

17  with respect to controlling the diversion and resultant abuse

18  of controlled substances. The Department of Law Enforcement

19  shall investigate the feasibility of the electronic

20  transmission of information from medical examiners within this

21  state to the Department of Health regarding autopsies and

22  other public reports that attribute death to controlled

23  substance abuse. The Department of Law Enforcement, in

24  consultation with the Department of Health, must submit a

25  report of its findings to the President of the Senate and the

26  Speaker of the House of Representatives by November 1, 2002.

27         Section 5.  Electronic monitoring system for

28  prescriptions.--

29         (1)  By July 1, 2003, the Department of Health shall

30  design and establish an electronic system consistent with the

31  standards of the National Council of Prescription Drug

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    Florida House of Representatives - 2002             CS/HB 15-E

    611-186-02E






 1  Programs (NCPDP) or the American Society for Automation in

 2  Pharmacy (ASAP) to monitor the prescribing of Schedule II

 3  controlled substances, other drugs designated by the

 4  Department of Health by rule under this section, and codeine,

 5  hydrocodone, dihydrocodeine, ethylmorphine, and morphine, as

 6  scheduled in Schedules II and III, by health care

 7  practitioners within the state or the dispensing of such

 8  controlled substances or drugs to an address within the state

 9  by a pharmacy permitted or registered by the Board of

10  Pharmacy.

11         (2)  All Schedule II controlled substances; codeine,

12  hydrocodone, dihydrocodeine, ethylmorphine, and morphine, as

13  scheduled in Schedules II and III; and any other drug

14  designated by the Department of Health under this section

15  shall be included in the electronic prescription-monitoring

16  system. Based upon recommendations of the Attorney General,

17  the Department of Health may, by rule, designate any other

18  drug for inclusion in such system after making a determination

19  that the drug is a drug of abuse. The Department of Health

20  must consider the recommendations of the

21  prescription-monitoring program advisory council created by

22  this section before designating a drug of abuse for inclusion

23  in the electronic prescription-monitoring system and only

24  after the department determines that the current level of

25  regulation over the prescribing and dispensing of such drug is

26  inadequate and that the drug has a high potential for abuse or

27  is being excessively misused, abused, or diverted into illicit

28  drug trafficking.

29         (3)  Beginning September 1, 2002, or later as provided

30  under subsection (7), information must be timely reported to

31  the Department of Health each time:

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (a)  A Schedule II controlled substance is dispensed;

 2         (b)  A drug that is designated by the Department of

 3  Health under subsection (2) is dispensed; or

 4         (c)  Codeine, hydrocodone, dihydrocodeine,

 5  ethylmorphine, or morphine, as scheduled in Schedules II and

 6  III is dispensed.

 7         (4)  This section does not apply to controlled

 8  substances or drugs:

 9         (a)  Ordered from an institutional pharmacy licensed

10  under s. 465.019(2), Florida Statutes, in accordance with the

11  institutional policy for such controlled substances or drugs;

12  or

13         (b)  Administered by a health care practitioner to a

14  patient or resident receiving care from a hospital, nursing

15  home, assisted living facility, home health agency, hospice,

16  or intermediate care facility for the developmentally disabled

17  which is licensed in this state.

18         (5)  The information required under this section

19  includes:

20         (a)  The patient's name.

21         (b)  The address of the patient, including state and

22  zip code.

23         (c)  The national drug code number of the controlled

24  substance or drug dispensed.

25         (d)  The date that the controlled substance or drug is

26  dispensed.

27         (e)  The quantity of controlled substance or drug

28  dispensed.

29         (f)  The dispenser's National Association of Boards of

30  Pharmacy (NABP) number.

31  

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (g)  The prescribing practitioner's United States Drug

 2  Enforcement Administration number.

 3         (6)  The information must be reported within 30 days

 4  after the date the controlled substance or drug is dispensed.

 5         (7)  A dispenser must transmit the information required

 6  by this section in an electronic format approved by rule of

 7  the Board of Pharmacy after consultation with the advisory

 8  council and the Department of Health, unless a specific waiver

 9  is granted to that dispenser by the Department of Health. The

10  Department of Health may provide for alternative transmission

11  such as copies of standard claim forms for circumstances

12  justified by the dispenser's small size or volume. The

13  Department of Health shall notify each dispenser of the

14  approved format on or before August 1, 2002. If practical, the

15  approved format shall be compatible with claim forms and other

16  reporting forms commonly used by dispensers, including common

17  electronic versions. In no event shall a dispenser be required

18  to meet the reporting requirements of this section earlier

19  than 30 days after notification of the approved format. The

20  approved format, as well as rules governing reporting, shall

21  make reasonable allowance for transmission in commonly used

22  electronic formats that are convertible into an electronic

23  format used in the electronic prescription-monitoring system

24  established under this section. The information transmitted

25  may be maintained by any department receiving it for up to 24

26  months. Such information must be purged from each department's

27  records 24 months after receipt, provided that any department

28  receiving such information may maintain it longer than 24

29  months if the information is pertinent to an ongoing

30  investigation arising under this act.

31  

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    Florida House of Representatives - 2002             CS/HB 15-E

    611-186-02E






 1         (8)  The Department of Health shall establish a

 2  16-member prescription-monitoring advisory council to assist

 3  it in identifying drugs of abuse to be recommended to the

 4  Secretary of Health and annually to the Legislature for

 5  inclusion in the prescription-monitoring system and in

 6  implementing the prescription-monitoring system.

 7         (a)  The Governor shall appoint members to serve on the

 8  advisory council. The members of the council shall include the

 9  Secretary of Health or his or her designee, who shall serve as

10  the chair; the Attorney General or his or her designee; the

11  executive director of the Department of Law Enforcement or his

12  or her designee; the director of the Office of Drug Control

13  within the Executive Office of Governor or his or her

14  designee; a physician who is licensed in this state under

15  chapter 458, Florida Statutes, who is recommended by the

16  Florida Medical Association; a physician who is licensed in

17  this state under chapter 458 or chapter 459, Florida Statutes,

18  who is recommended by the Florida Academy of Pain Medicine; a

19  physician who is licensed in this state under chapter 459,

20  Florida Statutes, who is recommended by the Florida

21  Osteopathic Medical Association; a physician who is licensed

22  in this state under chapter 458 or chapter 459, Florida

23  Statutes, who is recommended by the Florida Academy of Family

24  Physicians; a podiatric physician who is licensed in this

25  state under chapter 461, Florida Statutes, who is recommended

26  by the Florida Podiatric Medical Association; a pharmacist who

27  is licensed in this state under chapter 465, Florida Statutes,

28  and who is recommended by the Florida Society of Health-System

29  Pharmacists; a pharmacist who is licensed in this state under

30  chapter 465, Florida Statutes, who is recommended by the

31  Florida Pharmacy Association; a pharmacist who is licensed in

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    Florida House of Representatives - 2002             CS/HB 15-E

    611-186-02E






 1  this state under chapter 465, Florida Statutes, who is

 2  recommended by the Florida Retail Federation; a pharmacist who

 3  is licensed in this state under chapter 465, Florida Statutes,

 4  who is recommended by the National Community Pharmacy

 5  Association; a dentist who is licensed in this state under

 6  chapter 466, Florida Statutes, who is recommended by the

 7  Florida Dental Association; a veterinarian who is licensed in

 8  this state under chapter 474, Florida Statutes, who is

 9  recommended by the Florida Veterinary Medical Association; and

10  a prosecutor who has expertise in the criminal prosecution of

11  drug-diversion cases. At least one physician licensed under

12  chapter 458 or chapter 459, Florida Statutes, must specialize

13  in or have expertise in psychiatry, addiction, and substance

14  abuse. At least one physician licensed under chapter 458 or

15  chapter 459, Florida Statutes, must specialize in or have

16  expertise in hospice care and geriatrics.

17         (b)  The advisory council members shall meet no more

18  often than quarterly at the call of the chair and shall serve

19  without compensation. However, such members may receive

20  reimbursement, as provided in s. 112.061, Florida Statutes,

21  for per diem and travel expenses incurred in the performance

22  of their official duties.

23         (c)  The Department of Health shall provide staff and

24  other administrative assistance that is reasonably necessary

25  to assist the advisory council in carrying out its

26  responsibilities.

27         (9)  The Department of Health shall use the electronic

28  prescription-monitoring system established under this section

29  to identify licensees and individuals obtaining controlled

30  substances or drugs of abuse who may be involved, knowingly or

31  unknowingly, in fraudulent or illegal practices relating to

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    Florida House of Representatives - 2002             CS/HB 15-E

    611-186-02E






 1  the use, distribution, or prescribing of controlled substances

 2  or drugs of abuse. Cases may be referred to the appropriate

 3  licensing board for investigation, if, after consultation with

 4  a physician or dentist licensed under chapter 458, chapter

 5  459, chapter 461, or chapter 466, the consulting physician or

 6  dentist and legal counsel for the Department of Health

 7  determine that reasonable cause exists to believe that the

 8  licensee has engaged in fraudulent or illegal activity. If the

 9  licensee subject to referral holds a license under chapter

10  458, chapter 459, chapter 461, or chapter 466, the consulting

11  physician or dentist must hold the same license under the same

12  chapter as such licensee. In addition, cases may be referred

13  to an appropriate law enforcement agency for investigation.

14  Unless the law enforcement agency receiving the referral from

15  the Department of Health articulates in writing reasonable

16  cause to believe that a criminal violation has occurred, the

17  electronic prescription-monitoring system may not be used by

18  law enforcement as a means of monitoring prescription drug use

19  by patients identified by data contained in the system.

20  Information in the possession of any law enforcement agency

21  which was obtained from the electronic prescription-monitoring

22  system but not used as evidence in a judicial proceeding shall

23  be destroyed when the confidentiality of the information

24  ceases to be protected as active criminal investigation

25  information, unless a court order is obtained, based upon good

26  cause shown, permitting retention, specifying the period of

27  retention and the authorized use of the information, and

28  respecting the privacy interests of individuals affected.

29  Information contained in the electronic

30  prescription-monitoring system may be provided to licensed

31  health care practitioners for the purpose of providing

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  diagnostic or treatment services to an individual patient or

 2  consumer under the practitioner's care.

 3         (10)  The Department of Health shall adopt rules

 4  pursuant to ss. 120.536(1) and 120.574, Florida Statutes,

 5  necessary to administer this section.

 6         (11)  The Department of Health shall submit to the

 7  Governor, the President of the Senate, and the Speaker of the

 8  House of Representatives:

 9         (a)  By March 1, 2003, an initial progress report on

10  the electronic prescription-monitoring system established

11  under this section.

12         (b)  By September 1 of each year, for 5 years beginning

13  with 2003, an annual report on the effect of the electronic

14  prescription-monitoring system established under this section.

15         (12)  No funds from the Medical Quality Assurance Trust

16  Fund shall be used to implement this section.

17         (13)  Implementation of this section is subject to

18  specific appropriations contained in the annual General

19  Appropriations Act for the purposes of this section.

20         Section 6.  Subsections (1) and (9) of section 456.033,

21  Florida Statutes, are amended to read:

22         456.033  Requirement for instruction for certain

23  licensees on HIV and AIDS.--

24         (1)  The appropriate board shall require each person

25  licensed or certified under chapter 457; chapter 458; chapter

26  459; chapter 460; chapter 461; chapter 463; part I of chapter

27  464; chapter 465; chapter 466; part II, part III, part V, or

28  part X of chapter 468; or chapter 486 to complete a continuing

29  educational course, approved by the board, on human

30  immunodeficiency virus and acquired immune deficiency syndrome

31  as part of biennial relicensure or recertification. The course

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  shall consist of education on the modes of transmission,

 2  infection control procedures, clinical management, and

 3  prevention of human immunodeficiency virus and acquired immune

 4  deficiency syndrome. Such course shall include information on

 5  current Florida law on acquired immune deficiency syndrome and

 6  its impact on testing, confidentiality of test results,

 7  treatment of patients, and any protocols and procedures

 8  applicable to human immunodeficiency virus counseling and

 9  testing, reporting, the offering of HIV testing to pregnant

10  women, and partner notification issues pursuant to ss. 381.004

11  and 384.25.

12         (9)(a)  In lieu of completing a course as required in

13  subsection (1), the licensee may complete a course in

14  end-of-life care and palliative health care, so long as the

15  licensee completed an approved AIDS/HIV course in the

16  immediately preceding biennium.

17         (b)  In lieu of completing a course as required by

18  subsection (1), a person licensed under chapter 466 who has

19  completed an approved AIDS/HIV course in the immediately

20  preceding 2 years may complete a course approved by the Board

21  of Dentistry.

22         Section 7.  Subsection (4) of section 458.319 and

23  subsection (5) of section 459.008, Florida Statutes, are

24  repealed.

25         Section 8.  Paragraph (d) of subsection (2) of section

26  456.072, Florida Statutes, is amended to read:

27         456.072  Grounds for discipline; penalties;

28  enforcement.--

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

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

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

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    Florida House of Representatives - 2002             CS/HB 15-E

    611-186-02E






 1  practice act, including conduct constituting a substantial

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

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

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

 5  penalties:

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

 7  $25,000 $10,000 for each count or separate offense. If the

 8  violation is for fraud or making a false or fraudulent

 9  representation, the board, or the department if there is no

10  board, must impose a fine of $10,000 per count or offense.

11  

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

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

14  sanctions are necessary to protect the public or to compensate

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

16  the disciplining authority consider and include in the order

17  requirements designed to rehabilitate the practitioner. All

18  costs associated with compliance with orders issued under this

19  subsection are the obligation of the practitioner.

20         Section 9.  For the purpose of incorporating the

21  amendment to section 456.072, Florida Statutes, in a reference

22  thereto, subsection (2) of section 456.082, Florida Statutes,

23  is reenacted to read:

24         456.082  Disclosure of confidential information.--

25         (2)  Any person who willfully violates any provision of

26  this section is guilty of a misdemeanor of the first degree,

27  punishable as provided in s. 775.082 or s. 775.083, and may be

28  subject to discipline pursuant to s. 456.072, and, if

29  applicable, shall be removed from office, employment, or the

30  contractual relationship.

31  

                                  17

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         Section 10.  For the purpose of incorporating the

 2  amendment to section 456.072, Florida Statutes, in references

 3  thereto, subsections (1) and (2) of section 457.109, Florida

 4  Statutes, are reenacted to read:

 5         457.109  Disciplinary actions; grounds; action by the

 6  board.--

 7         (1)  The following acts constitute grounds for denial

 8  of a license or disciplinary action, as specified in s.

 9  456.072(2):

10         (a)  Attempting to obtain, obtaining, or renewing a

11  license to practice acupuncture by bribery, by fraudulent

12  misrepresentations, or through an error of the department.

13         (b)  Having a license to practice acupuncture revoked,

14  suspended, or otherwise acted against, including the denial of

15  licensure, by the licensing authority of another state,

16  territory, or country.

17         (c)  Being convicted or found guilty, regardless of

18  adjudication, in any jurisdiction of a crime which directly

19  relates to the practice of acupuncture or to the ability to

20  practice acupuncture.  Any plea of nolo contendere shall be

21  considered a conviction for purposes of this chapter.

22         (d)  False, deceptive, or misleading advertising or

23  advertising which claims that acupuncture is useful in curing

24  any disease.

25         (e)  Advertising, practicing, or attempting to practice

26  under a name other than one's own.

27         (f)  Failing to report to the department any person who

28  the licensee knows is in violation of this chapter or of the

29  rules of the department.

30  

31  

                                  18

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (g)  Aiding, assisting, procuring, employing, or

 2  advising any unlicensed person to practice acupuncture

 3  contrary to this chapter or to a rule of the department.

 4         (h)  Failing to perform any statutory or legal

 5  obligation placed upon a licensed acupuncturist.

 6         (i)  Making or filing a report which the licensee knows

 7  to be false, intentionally or negligently failing to file a

 8  report or record required by state or federal law, willfully

 9  impeding or obstructing such filing or inducing another person

10  to do so. Such reports or records shall include only those

11  which are signed in the capacity as a licensed acupuncturist.

12         (j)  Exercising influence within a

13  patient-acupuncturist relationship for purposes of engaging a

14  patient in sexual activity. A patient shall be presumed to be

15  incapable of giving free, full, and informed consent to sexual

16  activity with his or her acupuncturist.

17         (k)  Making deceptive, untrue, or fraudulent

18  representations in the practice of acupuncture or employing a

19  trick or scheme in the practice of acupuncture when such

20  scheme or trick fails to conform to the generally prevailing

21  standards of treatment in the community.

22         (l)  Soliciting patients, either personally or through

23  an agent, through the use of fraud, intimidation, undue

24  influence, or a form of overreaching or vexatious conduct. A

25  solicitation is any communication which directly or implicitly

26  requests an immediate oral response from the recipient.

27         (m)  Failing to keep written medical records justifying

28  the course of treatment of the patient.

29         (n)  Exercising influence on the patient to exploit the

30  patient for the financial gain of the licensee or of a third

31  party.

                                  19

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (o)  Being unable to practice acupuncture with

 2  reasonable skill and safety to patients by reason of illness

 3  or use of alcohol, drugs, narcotics, chemicals, or any other

 4  type of material or as a result of any mental or physical

 5  condition. In enforcing this paragraph, upon a finding of the

 6  secretary or the secretary's designee that probable cause

 7  exists to believe that the licensee is unable to serve as an

 8  acupuncturist due to the reasons stated in this paragraph, the

 9  department shall have the authority to issue an order to

10  compel the licensee to submit to a mental or physical

11  examination by a physician designated by the department. If

12  the licensee refuses to comply with such order, the

13  department's order directing such examination may be enforced

14  by filing a petition for enforcement in the circuit court

15  where the licensee resides or serves as an acupuncturist. The

16  licensee against whom the petition is filed shall not be named

17  or identified by initials in any public court record or

18  document, and the proceedings shall be closed to the public.

19  The department shall be entitled to the summary procedure

20  provided in s. 51.011. An acupuncturist affected under this

21  paragraph shall at reasonable intervals be afforded an

22  opportunity to demonstrate that he or she can resume the

23  competent practice of acupuncture with reasonable skill and

24  safety to patients. In any proceeding under this paragraph,

25  neither the record of proceedings nor the orders entered by

26  the department shall be used against an acupuncturist in any

27  other proceeding.

28         (p)  Gross or repeated malpractice or the failure to

29  practice acupuncture with that level of care, skill, and

30  treatment which is recognized by a reasonably prudent similar

31  

                                  20

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  acupuncturist as being acceptable under similar conditions and

 2  circumstances.

 3         (q)  Practicing or offering to practice beyond the

 4  scope permitted by law or accepting and performing

 5  professional responsibilities which the licensee knows or has

 6  reason to know that he or she is not competent to perform.

 7         (r)  Delegating professional responsibilities to a

 8  person when the licensee delegating such responsibilities

 9  knows or has reason to know that such person is not qualified

10  by training, experience, or licensure to perform them.

11         (s)  Violating a lawful order of the board previously

12  entered in a disciplinary hearing or failing to comply with a

13  lawfully issued subpoena of the department.

14         (t)  Conspiring with another to commit an act, or

15  committing an act, which would tend to coerce, intimidate, or

16  preclude another licensee from lawfully advertising his or her

17  services.

18         (u)  Fraud or deceit or gross negligence, incompetence,

19  or misconduct in the operation of a course of study.

20         (v)  Failing to comply with state, county, or municipal

21  regulations or reporting requirements relating to public

22  health and the control of contagious and infectious diseases.

23         (w)  Failing to comply with any rule of the board

24  relating to health and safety, including, but not limited to,

25  the sterilization of needles and equipment and the disposal of

26  potentially infectious materials.

27         (x)  Violating any provision of this chapter or chapter

28  456, or any rules adopted pursuant thereto.

29         (2)  The board may enter an order denying licensure or

30  imposing any of the penalties in s. 456.072(2) against any

31  applicant for licensure or licensee who is found guilty of

                                  21

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  violating any provision of subsection (1) of this section or

 2  who is found guilty of violating any provision of s.

 3  456.072(1).

 4         Section 11.  For the purpose of incorporating the

 5  amendment to section 456.072, Florida Statutes, in references

 6  thereto, subsections (1) and (2) of section 458.331, Florida

 7  Statutes, are reenacted to read:

 8         458.331  Grounds for disciplinary action; action by the

 9  board and department.--

10         (1)  The following acts constitute grounds for denial

11  of a license or disciplinary action, as specified in s.

12  456.072(2):

13         (a)  Attempting to obtain, obtaining, or renewing a

14  license to practice medicine by bribery, by fraudulent

15  misrepresentations, or through an error of the department or

16  the board.

17         (b)  Having a license or the authority to practice

18  medicine revoked, suspended, or otherwise acted against,

19  including the denial of licensure, by the licensing authority

20  of any jurisdiction, including its agencies or subdivisions.

21  The licensing authority's acceptance of a physician's

22  relinquishment of a license, stipulation, consent order, or

23  other settlement, offered in response to or in anticipation of

24  the filing of administrative charges against the physician's

25  license, shall be construed as action against the physician's

26  license.

27         (c)  Being convicted or found guilty of, or entering a

28  plea of nolo contendere to, regardless of adjudication, a

29  crime in any jurisdiction which directly relates to the

30  practice of medicine or to the ability to practice medicine.

31         (d)  False, deceptive, or misleading advertising.

                                  22

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (e)  Failing to report to the department any person who

 2  the licensee knows is in violation of this chapter or of the

 3  rules of the department or the board. A treatment provider

 4  approved pursuant to s. 456.076 shall provide the department

 5  or consultant with information in accordance with the

 6  requirements of s. 456.076(3), (4), (5), and (6).

 7         (f)  Aiding, assisting, procuring, or advising any

 8  unlicensed person to practice medicine contrary to this

 9  chapter or to a rule of the department or the board.

10         (g)  Failing to perform any statutory or legal

11  obligation placed upon a licensed physician.

12         (h)  Making or filing a report which the licensee knows

13  to be false, intentionally or negligently failing to file a

14  report or record required by state or federal law, willfully

15  impeding or obstructing such filing or inducing another person

16  to do so.  Such reports or records shall include only those

17  which are signed in the capacity as a licensed physician.

18         (i)  Paying or receiving any commission, bonus,

19  kickback, or rebate, or engaging in any split-fee arrangement

20  in any form whatsoever with a physician, organization, agency,

21  or person, either directly or indirectly, for patients

22  referred to providers of health care goods and services,

23  including, but not limited to, hospitals, nursing homes,

24  clinical laboratories, ambulatory surgical centers, or

25  pharmacies. The provisions of this paragraph shall not be

26  construed to prevent a physician from receiving a fee for

27  professional consultation services.

28         (j)  Exercising influence within a patient-physician

29  relationship for purposes of engaging a patient in sexual

30  activity. A patient shall be presumed to be incapable of

31  

                                  23

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  giving free, full, and informed consent to sexual activity

 2  with his or her physician.

 3         (k)  Making deceptive, untrue, or fraudulent

 4  representations in or related to the practice of medicine or

 5  employing a trick or scheme in the practice of medicine.

 6         (l)  Soliciting patients, either personally or through

 7  an agent, through the use of fraud, intimidation, undue

 8  influence, or a form of overreaching or vexatious conduct. A

 9  solicitation is any communication which directly or implicitly

10  requests an immediate oral response from the recipient.

11         (m)  Failing to keep legible, as defined by department

12  rule in consultation with the board, medical records that

13  identify the licensed physician or the physician extender and

14  supervising physician by name and professional title who is or

15  are responsible for rendering, ordering, supervising, or

16  billing for each diagnostic or treatment procedure and that

17  justify the course of treatment of the patient, including, but

18  not limited to, patient histories; examination results; test

19  results; records of drugs prescribed, dispensed, or

20  administered; and reports of consultations and

21  hospitalizations.

22         (n)  Exercising influence on the patient or client in

23  such a manner as to exploit the patient or client for

24  financial gain of the licensee or of a third party, which

25  shall include, but not be limited to, the promoting or selling

26  of services, goods, appliances, or drugs.

27         (o)  Promoting or advertising on any prescription form

28  of a community pharmacy unless the form shall also state "This

29  prescription may be filled at any pharmacy of your choice."

30         (p)  Performing professional services which have not

31  been duly authorized by the patient or client, or his or her

                                  24

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  legal representative, except as provided in s. 743.064, s.

 2  766.103, or s. 768.13.

 3         (q)  Prescribing, dispensing, administering, mixing, or

 4  otherwise preparing a legend drug, including any controlled

 5  substance, other than in the course of the physician's

 6  professional practice.  For the purposes of this paragraph, it

 7  shall be legally presumed that prescribing, dispensing,

 8  administering, mixing, or otherwise preparing legend drugs,

 9  including all controlled substances, inappropriately or in

10  excessive or inappropriate quantities is not in the best

11  interest of the patient and is not in the course of the

12  physician's professional practice, without regard to his or

13  her intent.

14         (r)  Prescribing, dispensing, or administering any

15  medicinal drug appearing on any schedule set forth in chapter

16  893 by the physician to himself or herself, except one

17  prescribed, dispensed, or administered to the physician by

18  another practitioner authorized to prescribe, dispense, or

19  administer medicinal drugs.

20         (s)  Being unable to practice medicine with reasonable

21  skill and safety to patients by reason of illness or use of

22  alcohol, drugs, narcotics, chemicals, or any other type of

23  material or as a result of any mental or physical condition.

24  In enforcing this paragraph, the department shall have, upon a

25  finding of the secretary or the secretary's designee that

26  probable cause exists to believe that the licensee is unable

27  to practice medicine because of the reasons stated in this

28  paragraph, the authority to issue an order to compel a

29  licensee to submit to a mental or physical examination by

30  physicians designated by the department. If the licensee

31  refuses to comply with such order, the department's order

                                  25

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  directing such examination may be enforced by filing a

 2  petition for enforcement in the circuit court where the

 3  licensee resides or does business. The licensee against whom

 4  the petition is filed may not be named or identified by

 5  initials in any public court records or documents, and the

 6  proceedings shall be closed to the public.  The department

 7  shall be entitled to the summary procedure provided in s.

 8  51.011. A licensee or certificateholder affected under this

 9  paragraph shall at reasonable intervals be afforded an

10  opportunity to demonstrate that he or she can resume the

11  competent practice of medicine with reasonable skill and

12  safety to patients.

13         (t)  Gross or repeated malpractice or the failure to

14  practice medicine with that level of care, skill, and

15  treatment which is recognized by a reasonably prudent similar

16  physician as being acceptable under similar conditions and

17  circumstances.  The board shall give great weight to the

18  provisions of s. 766.102 when enforcing this paragraph.  As

19  used in this paragraph, "repeated malpractice" includes, but

20  is not limited to, three or more claims for medical

21  malpractice within the previous 5-year period resulting in

22  indemnities being paid in excess of $25,000 each to the

23  claimant in a judgment or settlement and which incidents

24  involved negligent conduct by the physician. As used in this

25  paragraph, "gross malpractice" or "the failure to practice

26  medicine with that level of care, skill, and treatment which

27  is recognized by a reasonably prudent similar physician as

28  being acceptable under similar conditions and circumstances,"

29  shall not be construed so as to require more than one

30  instance, event, or act.  Nothing in this paragraph shall be

31  construed to require that a physician be incompetent to

                                  26

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  practice medicine in order to be disciplined pursuant to this

 2  paragraph.

 3         (u)  Performing any procedure or prescribing any

 4  therapy which, by the prevailing standards of medical practice

 5  in the community, would constitute experimentation on a human

 6  subject, without first obtaining full, informed, and written

 7  consent.

 8         (v)  Practicing or offering to practice beyond the

 9  scope permitted by law or accepting and performing

10  professional responsibilities which the licensee knows or has

11  reason to know that he or she is not competent to perform. The

12  board may establish by rule standards of practice and

13  standards of care for particular practice settings, including,

14  but not limited to, education and training, equipment and

15  supplies, medications including anesthetics, assistance of and

16  delegation to other personnel, transfer agreements,

17  sterilization, records, performance of complex or multiple

18  procedures, informed consent, and policy and procedure

19  manuals.

20         (w)  Delegating professional responsibilities to a

21  person when the licensee delegating such responsibilities

22  knows or has reason to know that such person is not qualified

23  by training, experience, or licensure to perform them.

24         (x)  Violating a lawful order of the board or

25  department previously entered in a disciplinary hearing or

26  failing to comply with a lawfully issued subpoena of the

27  department.

28         (y)  Conspiring with another licensee or with any other

29  person to commit an act, or committing an act, which would

30  tend to coerce, intimidate, or preclude another licensee from

31  lawfully advertising his or her services.

                                  27

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (z)  Procuring, or aiding or abetting in the procuring

 2  of, an unlawful termination of pregnancy.

 3         (aa)  Presigning blank prescription forms.

 4         (bb)  Prescribing any medicinal drug appearing on

 5  Schedule II in chapter 893 by the physician for office use.

 6         (cc)  Prescribing, ordering, dispensing, administering,

 7  supplying, selling, or giving any drug which is a Schedule II

 8  amphetamine or a Schedule II sympathomimetic amine drug or any

 9  compound thereof, pursuant to chapter 893, to or for any

10  person except for:

11         1.  The treatment of narcolepsy; hyperkinesis;

12  behavioral syndrome characterized by the developmentally

13  inappropriate symptoms of moderate to severe distractability,

14  short attention span, hyperactivity, emotional lability, and

15  impulsivity; or drug-induced brain dysfunction;

16         2.  The differential diagnostic psychiatric evaluation

17  of depression or the treatment of depression shown to be

18  refractory to other therapeutic modalities; or

19         3.  The clinical investigation of the effects of such

20  drugs or compounds when an investigative protocol therefor is

21  submitted to, reviewed, and approved by the board before such

22  investigation is begun.

23         (dd)  Failing to supervise adequately the activities of

24  those physician assistants, paramedics, emergency medical

25  technicians, or advanced registered nurse practitioners acting

26  under the supervision of the physician.

27         (ee)  Prescribing, ordering, dispensing, administering,

28  supplying, selling, or giving growth hormones, testosterone or

29  its analogs, human chorionic gonadotropin (HCG), or other

30  hormones for the purpose of muscle building or to enhance

31  athletic performance. For the purposes of this subsection, the

                                  28

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  term "muscle building" does not include the treatment of

 2  injured muscle. A prescription written for the drug products

 3  listed above may be dispensed by the pharmacist with the

 4  presumption that the prescription is for legitimate medical

 5  use.

 6         (ff)  Prescribing, ordering, dispensing, administering,

 7  supplying, selling, or giving amygdalin (laetrile) to any

 8  person.

 9         (gg)  Misrepresenting or concealing a material fact at

10  any time during any phase of a licensing or disciplinary

11  process or procedure.

12         (hh)  Improperly interfering with an investigation or

13  with any disciplinary proceeding.

14         (ii)  Failing to report to the department any licensee

15  under this chapter or under chapter 459 who the physician or

16  physician assistant knows has violated the grounds for

17  disciplinary action set out in the law under which that person

18  is licensed and who provides health care services in a

19  facility licensed under chapter 395, or a health maintenance

20  organization certificated under part I of chapter 641, in

21  which the physician or physician assistant also provides

22  services.

23         (jj)  Being found by any court in this state to have

24  provided corroborating written medical expert opinion attached

25  to any statutorily required notice of claim or intent or to

26  any statutorily required response rejecting a claim, without

27  reasonable investigation.

28         (kk)  Failing to report to the board, in writing,

29  within 30 days if action as defined in paragraph (b) has been

30  taken against one's license to practice medicine in another

31  state, territory, or country.

                                  29

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (ll)  Advertising or holding oneself out as a

 2  board-certified specialist, if not qualified under s.

 3  458.3312, in violation of this chapter.

 4         (mm)  Failing to comply with the requirements of ss.

 5  381.026 and 381.0261 to provide patients with information

 6  about their patient rights and how to file a patient

 7  complaint.

 8         (nn)  Violating any provision of this chapter or

 9  chapter 456, or any rules adopted pursuant thereto.

10         (2)  The board may enter an order denying licensure or

11  imposing any of the penalties in s. 456.072(2) against any

12  applicant for licensure or licensee who is found guilty of

13  violating any provision of subsection (1) of this section or

14  who is found guilty of violating any provision of s.

15  456.072(1). In determining what action is appropriate, the

16  board must first consider what sanctions are necessary to

17  protect the public or to compensate the patient. Only after

18  those sanctions have been imposed may the disciplining

19  authority consider and include in the order requirements

20  designed to rehabilitate the physician. All costs associated

21  with compliance with orders issued under this subsection are

22  the obligation of the physician.

23         Section 12.  For the purpose of incorporating the

24  amendment to section 456.072, Florida Statutes, in a reference

25  thereto, paragraph (g) of subsection (7) of section 458.347,

26  Florida Statutes, is reenacted to read:

27         458.347  Physician assistants.--

28         (7)  PHYSICIAN ASSISTANT LICENSURE.--

29         (g)  The Board of Medicine may impose any of the

30  penalties authorized under ss. 456.072 and 458.331(2) upon a

31  physician assistant if the physician assistant or the

                                  30

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  supervising physician has been found guilty of or is being

 2  investigated for any act that constitutes a violation of this

 3  chapter or chapter 456.

 4         Section 13.  For the purpose of incorporating the

 5  amendment to section 456.072, Florida Statutes, in references

 6  thereto, subsections (1) and (2) of section 459.015, Florida

 7  Statutes, are reenacted to read:

 8         459.015  Grounds for disciplinary action; action by the

 9  board and department.--

10         (1)  The following acts constitute grounds for denial

11  of a license or disciplinary action, as specified in s.

12  456.072(2):

13         (a)  Attempting to obtain, obtaining, or renewing a

14  license to practice osteopathic medicine or a certificate

15  issued under this chapter by bribery, by fraudulent

16  misrepresentations, or through an error of the department or

17  the board.

18         (b)  Having a license or the authority to practice

19  osteopathic medicine revoked, suspended, or otherwise acted

20  against, including the denial of licensure, by the licensing

21  authority of any jurisdiction, including its agencies or

22  subdivisions.  The licensing authority's acceptance of a

23  physician's relinquishment of license, stipulation, consent

24  order, or other settlement offered in response to or in

25  anticipation of the filing of administrative charges against

26  the physician shall be construed as action against the

27  physician's license.

28         (c)  Being convicted or found guilty, regardless of

29  adjudication, of a crime in any jurisdiction which directly

30  relates to the practice of osteopathic medicine or to the

31  ability to practice osteopathic medicine.  A plea of nolo

                                  31

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  contendere shall create a rebuttable presumption of guilt to

 2  the underlying criminal charges.

 3         (d)  False, deceptive, or misleading advertising.

 4         (e)  Failing to report to the department or the

 5  department's impaired professional consultant any person who

 6  the licensee or certificateholder knows is in violation of

 7  this chapter or of the rules of the department or the board.

 8  A treatment provider, approved pursuant to s. 456.076, shall

 9  provide the department or consultant with information in

10  accordance with the requirements of s. 456.076(3), (4), (5),

11  and (6).

12         (f)  Aiding, assisting, procuring, or advising any

13  unlicensed person to practice osteopathic medicine contrary to

14  this chapter or to a rule of the department or the board.

15         (g)  Failing to perform any statutory or legal

16  obligation placed upon a licensed osteopathic physician.

17         (h)  Giving false testimony in the course of any legal

18  or administrative proceedings relating to the practice of

19  medicine or the delivery of health care services.

20         (i)  Making or filing a report which the licensee knows

21  to be false, intentionally or negligently failing to file a

22  report or record required by state or federal law, willfully

23  impeding or obstructing such filing, or inducing another

24  person to do so. Such reports or records shall include only

25  those which are signed in the capacity as a licensed

26  osteopathic physician.

27         (j)  Paying or receiving any commission, bonus,

28  kickback, or rebate, or engaging in any split-fee arrangement

29  in any form whatsoever with a physician, organization, agency,

30  person, partnership, firm, corporation, or other business

31  entity, for patients referred to providers of health care

                                  32

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    Florida House of Representatives - 2002             CS/HB 15-E

    611-186-02E






 1  goods and services, including, but not limited to, hospitals,

 2  nursing homes, clinical laboratories, ambulatory surgical

 3  centers, or pharmacies.  The provisions of this paragraph

 4  shall not be construed to prevent an osteopathic physician

 5  from receiving a fee for professional consultation services.

 6         (k)  Refusing to provide health care based on a

 7  patient's participation in pending or past litigation or

 8  participation in any disciplinary action conducted pursuant to

 9  this chapter, unless such litigation or disciplinary action

10  directly involves the osteopathic physician requested to

11  provide services.

12         (l)  Exercising influence within a patient-physician

13  relationship for purposes of engaging a patient in sexual

14  activity. A patient shall be presumed to be incapable of

15  giving free, full, and informed consent to sexual activity

16  with his or her physician.

17         (m)  Making deceptive, untrue, or fraudulent

18  representations in or related to the practice of osteopathic

19  medicine or employing a trick or scheme in the practice of

20  osteopathic medicine.

21         (n)  Soliciting patients, either personally or through

22  an agent, through the use of fraud, intimidation, undue

23  influence, or forms of overreaching or vexatious conduct.  A

24  solicitation is any communication which directly or implicitly

25  requests an immediate oral response from the recipient.

26         (o)  Failing to keep legible, as defined by department

27  rule in consultation with the board, medical records that

28  identify the licensed osteopathic physician or the osteopathic

29  physician extender and supervising osteopathic physician by

30  name and professional title who is or are responsible for

31  rendering, ordering, supervising, or billing for each

                                  33

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  diagnostic or treatment procedure and that justify the course

 2  of treatment of the patient, including, but not limited to,

 3  patient histories; examination results; test results; records

 4  of drugs prescribed, dispensed, or administered; and reports

 5  of consultations and hospitalizations.

 6         (p)  Fraudulently altering or destroying records

 7  relating to patient care or treatment, including, but not

 8  limited to, patient histories, examination results, and test

 9  results.

10         (q)  Exercising influence on the patient or client in

11  such a manner as to exploit the patient or client for

12  financial gain of the licensee or of a third party which shall

13  include, but not be limited to, the promotion or sale of

14  services, goods, appliances, or drugs.

15         (r)  Promoting or advertising on any prescription form

16  of a community pharmacy, unless the form shall also state

17  "This prescription may be filled at any pharmacy of your

18  choice."

19         (s)  Performing professional services which have not

20  been duly authorized by the patient or client or his or her

21  legal representative except as provided in s. 743.064, s.

22  766.103, or s. 768.13.

23         (t)  Prescribing, dispensing, administering, supplying,

24  selling, giving, mixing, or otherwise preparing a legend drug,

25  including all controlled substances, other than in the course

26  of the osteopathic physician's professional practice.  For the

27  purposes of this paragraph, it shall be legally presumed that

28  prescribing, dispensing, administering, supplying, selling,

29  giving, mixing, or otherwise preparing legend drugs, including

30  all controlled substances, inappropriately or in excessive or

31  inappropriate quantities is not in the best interest of the

                                  34

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  patient and is not in the course of the osteopathic

 2  physician's professional practice, without regard to his or

 3  her intent.

 4         (u)  Prescribing or dispensing any medicinal drug

 5  appearing on any schedule set forth in chapter 893 by the

 6  osteopathic physician for himself or herself or administering

 7  any such drug by the osteopathic physician to himself or

 8  herself unless such drug is prescribed for the osteopathic

 9  physician by another practitioner authorized to prescribe

10  medicinal drugs.

11         (v)  Prescribing, ordering, dispensing, administering,

12  supplying, selling, or giving amygdalin (laetrile) to any

13  person.

14         (w)  Being unable to practice osteopathic medicine with

15  reasonable skill and safety to patients by reason of illness

16  or use of alcohol, drugs, narcotics, chemicals, or any other

17  type of material or as a result of any mental or physical

18  condition.  In enforcing this paragraph, the department shall,

19  upon a finding of the secretary or the secretary's designee

20  that probable cause exists to believe that the licensee is

21  unable to practice medicine because of the reasons stated in

22  this paragraph, have the authority to issue an order to compel

23  a licensee to submit to a mental or physical examination by

24  physicians designated by the department.  If the licensee

25  refuses to comply with such order, the department's order

26  directing such examination may be enforced by filing a

27  petition for enforcement in the circuit court where the

28  licensee resides or does business.  The licensee against whom

29  the petition is filed shall not be named or identified by

30  initials in any public court records or documents, and the

31  proceedings shall be closed to the public.  The department

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  shall be entitled to the summary procedure provided in s.

 2  51.011.  A licensee or certificateholder affected under this

 3  paragraph shall at reasonable intervals be afforded an

 4  opportunity to demonstrate that he or she can resume the

 5  competent practice of medicine with reasonable skill and

 6  safety to patients.

 7         (x)  Gross or repeated malpractice or the failure to

 8  practice osteopathic medicine with that level of care, skill,

 9  and treatment which is recognized by a reasonably prudent

10  similar osteopathic physician as being acceptable under

11  similar conditions and circumstances. The board shall give

12  great weight to the provisions of s. 766.102 when enforcing

13  this paragraph. As used in this paragraph, "repeated

14  malpractice" includes, but is not limited to, three or more

15  claims for medical malpractice within the previous 5-year

16  period resulting in indemnities being paid in excess of

17  $25,000 each to the claimant in a judgment or settlement and

18  which incidents involved negligent conduct by the osteopathic

19  physician. As used in this paragraph, "gross malpractice" or

20  "the failure to practice osteopathic medicine with that level

21  of care, skill, and treatment which is recognized by a

22  reasonably prudent similar osteopathic physician as being

23  acceptable under similar conditions and circumstances" shall

24  not be construed so as to require more than one instance,

25  event, or act. Nothing in this paragraph shall be construed to

26  require that an osteopathic physician be incompetent to

27  practice osteopathic medicine in order to be disciplined

28  pursuant to this paragraph.  A recommended order by an

29  administrative law judge or a final order of the board finding

30  a violation under this paragraph shall specify whether the

31  licensee was found to have committed "gross malpractice,"

                                  36

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  "repeated malpractice," or "failure to practice osteopathic

 2  medicine with that level of care, skill, and treatment which

 3  is recognized as being acceptable under similar conditions and

 4  circumstances," or any combination thereof, and any

 5  publication by the board shall so specify.

 6         (y)  Performing any procedure or prescribing any

 7  therapy which, by the prevailing standards of medical practice

 8  in the community, would constitute experimentation on human

 9  subjects, without first obtaining full, informed, and written

10  consent.

11         (z)  Practicing or offering to practice beyond the

12  scope permitted by law or accepting and performing

13  professional responsibilities which the licensee knows or has

14  reason to know that he or she is not competent to perform. The

15  board may establish by rule standards of practice and

16  standards of care for particular practice settings, including,

17  but not limited to, education and training, equipment and

18  supplies, medications including anesthetics, assistance of and

19  delegation to other personnel, transfer agreements,

20  sterilization, records, performance of complex or multiple

21  procedures, informed consent, and policy and procedure

22  manuals.

23         (aa)  Delegating professional responsibilities to a

24  person when the licensee delegating such responsibilities

25  knows or has reason to know that such person is not qualified

26  by training, experience, or licensure to perform them.

27         (bb)  Violating a lawful order of the board or

28  department previously entered in a disciplinary hearing or

29  failing to comply with a lawfully issued subpoena of the board

30  or department.

31  

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (cc)  Conspiring with another licensee or with any

 2  other person to commit an act, or committing an act, which

 3  would tend to coerce, intimidate, or preclude another licensee

 4  from lawfully advertising his or her services.

 5         (dd)  Procuring, or aiding or abetting in the procuring

 6  of, an unlawful termination of pregnancy.

 7         (ee)  Presigning blank prescription forms.

 8         (ff)  Prescribing any medicinal drug appearing on

 9  Schedule II in chapter 893 by the osteopathic physician for

10  office use.

11         (gg)  Prescribing, ordering, dispensing, administering,

12  supplying, selling, or giving any drug which is a Schedule II

13  amphetamine or Schedule II sympathomimetic amine drug or any

14  compound thereof, pursuant to chapter 893, to or for any

15  person except for:

16         1.  The treatment of narcolepsy; hyperkinesis;

17  behavioral syndrome characterized by the developmentally

18  inappropriate symptoms of moderate to severe distractability,

19  short attention span, hyperactivity, emotional lability, and

20  impulsivity; or drug-induced brain dysfunction;

21         2.  The differential diagnostic psychiatric evaluation

22  of depression or the treatment of depression shown to be

23  refractory to other therapeutic modalities; or

24         3.  The clinical investigation of the effects of such

25  drugs or compounds when an investigative protocol therefor is

26  submitted to, reviewed, and approved by the board before such

27  investigation is begun.

28         (hh)  Failing to supervise adequately the activities of

29  those physician assistants, paramedics, emergency medical

30  technicians, advanced registered nurse practitioners, or other

31  

                                  38

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  persons acting under the supervision of the osteopathic

 2  physician.

 3         (ii)  Prescribing, ordering, dispensing, administering,

 4  supplying, selling, or giving growth hormones, testosterone or

 5  its analogs, human chorionic gonadotropin (HCG), or other

 6  hormones for the purpose of muscle building or to enhance

 7  athletic performance. For the purposes of this subsection, the

 8  term "muscle building" does not include the treatment of

 9  injured muscle.  A prescription written for the drug products

10  listed above may be dispensed by the pharmacist with the

11  presumption that the prescription is for legitimate medical

12  use.

13         (jj)  Misrepresenting or concealing a material fact at

14  any time during any phase of a licensing or disciplinary

15  process or procedure.

16         (kk)  Improperly interfering with an investigation or

17  with any disciplinary proceeding.

18         (ll)  Failing to report to the department any licensee

19  under chapter 458 or under this chapter who the osteopathic

20  physician or physician assistant knows has violated the

21  grounds for disciplinary action set out in the law under which

22  that person is licensed and who provides health care services

23  in a facility licensed under chapter 395, or a health

24  maintenance organization certificated under part I of chapter

25  641, in which the osteopathic physician or physician assistant

26  also provides services.

27         (mm)  Being found by any court in this state to have

28  provided corroborating written medical expert opinion attached

29  to any statutorily required notice of claim or intent or to

30  any statutorily required response rejecting a claim, without

31  reasonable investigation.

                                  39

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (nn)  Advertising or holding oneself out as a

 2  board-certified specialist in violation of this chapter.

 3         (oo)  Failing to comply with the requirements of ss.

 4  381.026 and 381.0261 to provide patients with information

 5  about their patient rights and how to file a patient

 6  complaint.

 7         (pp)  Violating any provision of this chapter or

 8  chapter 456, or any rules adopted pursuant thereto.

 9         (2)  The board may enter an order denying licensure or

10  imposing any of the penalties in s. 456.072(2) against any

11  applicant for licensure or licensee who is found guilty of

12  violating any provision of subsection (1) of this section or

13  who is found guilty of violating any provision of s.

14  456.072(1). In determining what action is appropriate, the

15  board must first consider what sanctions are necessary to

16  protect the public or to compensate the patient.  Only after

17  those sanctions have been imposed may the disciplining

18  authority consider and include in the order requirements

19  designed to rehabilitate the physician.  All costs associated

20  with compliance with orders issued under this subsection are

21  the obligation of the physician.

22         Section 14.  For the purpose of incorporating the

23  amendment to section 456.072, Florida Statutes, in a reference

24  thereto, paragraph (f) of subsection (7) of section 459.022,

25  Florida Statutes, is reenacted to read:

26         459.022  Physician assistants.--

27         (7)  PHYSICIAN ASSISTANT LICENSURE.--

28         (f)  The Board of Osteopathic Medicine may impose any

29  of the penalties authorized under ss. 456.072 and 459.015(2)

30  upon a physician assistant if the physician assistant or the

31  supervising physician has been found guilty of or is being

                                  40

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  investigated for any act that constitutes a violation of this

 2  chapter or chapter 456.

 3         Section 15.  For the purpose of incorporating the

 4  amendment to section 456.072, Florida Statutes, in references

 5  thereto, subsections (1) and (2) of section 460.413, Florida

 6  Statutes, are reenacted to read:

 7         460.413  Grounds for disciplinary action; action by

 8  board or department.--

 9         (1)  The following acts constitute grounds for denial

10  of a license or disciplinary action, as specified in s.

11  456.072(2):

12         (a)  Attempting to obtain, obtaining, or renewing a

13  license to practice chiropractic medicine by bribery, by

14  fraudulent misrepresentations, or through an error of the

15  department or the board.

16         (b)  Having a license to practice chiropractic medicine

17  revoked, suspended, or otherwise acted against, including the

18  denial of licensure, by the licensing authority of another

19  state, territory, or country.

20         (c)  Being convicted or found guilty, regardless of

21  adjudication, of a crime in any jurisdiction which directly

22  relates to the practice of chiropractic medicine or to the

23  ability to practice chiropractic medicine. Any plea of nolo

24  contendere shall be considered a conviction for purposes of

25  this chapter.

26         (d)  False, deceptive, or misleading advertising.

27         (e)  Causing to be advertised, by any means whatsoever,

28  any advertisement which does not contain an assertion or

29  statement which would identify herself or himself as a

30  chiropractic physician or identify such chiropractic clinic or

31  related institution in which she or he practices or in which

                                  41

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  she or he is owner, in whole or in part, as a chiropractic

 2  institution.

 3         (f)  Advertising, practicing, or attempting to practice

 4  under a name other than one's own.

 5         (g)  Failing to report to the department any person who

 6  the licensee knows is in violation of this chapter or of the

 7  rules of the department or the board.

 8         (h)  Aiding, assisting, procuring, or advising any

 9  unlicensed person to practice chiropractic medicine contrary

10  to this chapter or to a rule of the department or the board.

11         (i)  Failing to perform any statutory or legal

12  obligation placed upon a licensed chiropractic physician.

13         (j)  Making or filing a report which the licensee knows

14  to be false, intentionally or negligently failing to file a

15  report or record required by state or federal law, willfully

16  impeding or obstructing such filing or inducing another person

17  to do so.  Such reports or records shall include only those

18  which are signed in the capacity of a licensed chiropractic

19  physician.

20         (k)  Making misleading, deceptive, untrue, or

21  fraudulent representations in the practice of chiropractic

22  medicine or employing a trick or scheme in the practice of

23  chiropractic medicine when such trick or scheme fails to

24  conform to the generally prevailing standards of treatment in

25  the chiropractic medical community.

26         (l)  Soliciting patients either personally or through

27  an agent, unless such solicitation falls into a category of

28  solicitations approved by rule of the board.

29         (m)  Failing to keep legibly written chiropractic

30  medical records that identify clearly by name and credentials

31  the licensed chiropractic physician rendering, ordering,

                                  42

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  supervising, or billing for each examination or treatment

 2  procedure and that justify the course of treatment of the

 3  patient, including, but not limited to, patient histories,

 4  examination results, test results, X rays, and diagnosis of a

 5  disease, condition, or injury.  X rays need not be retained

 6  for more than 4 years.

 7         (n)  Exercising influence on the patient or client in

 8  such a manner as to exploit the patient or client for

 9  financial gain of the licensee or of a third party which shall

10  include, but not be limited to, the promotion or sale of

11  services, goods or appliances, or drugs.

12         (o)  Performing professional services which have not

13  been duly authorized by the patient or client or her or his

14  legal representative except as provided in ss. 743.064,

15  766.103, and 768.13.

16         (p)  Prescribing, dispensing, or administering any

17  medicinal drug except as authorized by s. 460.403(9)(c)2.,

18  performing any surgery, or practicing obstetrics.

19         (q)  Being unable to practice chiropractic medicine

20  with reasonable skill and safety to patients by reason of

21  illness or use of alcohol, drugs, narcotics, chemicals, or any

22  other type of material or as a result of any mental or

23  physical condition.  In enforcing this paragraph, upon a

24  finding by the secretary of the department, or his or her

25  designee, or the probable cause panel of the board that

26  probable cause exists to believe that the licensee is unable

27  to practice the profession because of reasons stated in this

28  paragraph, the department shall have the authority to compel a

29  licensee to submit to a mental or physical examination by a

30  physician designated by the department. If the licensee

31  refuses to comply with the department's order, the department

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  may file a petition for enforcement in the circuit court of

 2  the circuit in which the licensee resides or does business.

 3  The department shall be entitled to the summary procedure

 4  provided in s. 51.011.  The record of proceedings to obtain a

 5  compelled mental or physical examination shall not be used

 6  against a licensee in any other proceedings.  A chiropractic

 7  physician affected under this paragraph shall at reasonable

 8  intervals be afforded an opportunity to demonstrate that she

 9  or he can resume the competent practice of chiropractic

10  medicine with reasonable skill and safety to patients.

11         (r)  Gross or repeated malpractice or the failure to

12  practice chiropractic medicine at a level of care, skill, and

13  treatment which is recognized by a reasonably prudent

14  chiropractic physician as being acceptable under similar

15  conditions and circumstances. The board shall give great

16  weight to the standards for malpractice in s. 766.102 in

17  interpreting this provision. A recommended order by an

18  administrative law judge, or a final order of the board

19  finding a violation under this section shall specify whether

20  the licensee was found to have committed "gross malpractice,"

21  "repeated malpractice," or "failure to practice chiropractic

22  medicine with that level of care, skill, and treatment which

23  is recognized as being acceptable under similar conditions and

24  circumstances" or any combination thereof, and any publication

25  by the board shall so specify.

26         (s)  Performing any procedure or prescribing any

27  therapy which, by the prevailing standards of chiropractic

28  medical practice in the community, would constitute

29  experimentation on human subjects, without first obtaining

30  full, informed, and written consent.

31  

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (t)  Practicing or offering to practice beyond the

 2  scope permitted by law or accepting and performing

 3  professional responsibilities which the licensee knows or has

 4  reason to know that she or he is not competent to perform.

 5         (u)  Delegating professional responsibilities to a

 6  person when the licensee delegating such responsibilities

 7  knows or has reason to know that such person is not qualified

 8  by training, experience, or licensure to perform them.

 9         (v)  Violating a lawful order of the board or

10  department previously entered in a disciplinary hearing or

11  failing to comply with a lawfully issued subpoena of the

12  department.

13         (w)  Conspiring with another licensee or with any other

14  person to commit an act, or committing an act, which would

15  tend to coerce, intimidate, or preclude another licensee from

16  lawfully advertising her or his services.

17         (x)  Submitting to any third-party payor a claim for a

18  service or treatment which was not actually provided to a

19  patient.

20         (y)  Failing to preserve identity of funds and property

21  of a patient. As provided by rule of the board, money or other

22  property entrusted to a chiropractic physician for a specific

23  purpose, including advances for costs and expenses of

24  examination or treatment, is to be held in trust and must be

25  applied only to that purpose.  Money and other property of

26  patients coming into the hands of a chiropractic physician are

27  not subject to counterclaim or setoff for chiropractic

28  physician's fees, and a refusal to account for and deliver

29  over such money and property upon demand shall be deemed a

30  conversion. This is not to preclude the retention of money or

31  other property upon which the chiropractic physician has a

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  valid lien for services or to preclude the payment of agreed

 2  fees from the proceeds of transactions for examinations or

 3  treatments.  Controversies as to the amount of the fees are

 4  not grounds for disciplinary proceedings unless the amount

 5  demanded is clearly excessive or extortionate, or the demand

 6  is fraudulent. All funds of patients paid to a chiropractic

 7  physician, other than advances for costs and expenses, shall

 8  be deposited in one or more identifiable bank accounts

 9  maintained in the state in which the chiropractic physician's

10  office is situated, and no funds belonging to the chiropractic

11  physician shall be deposited therein except as follows:

12         1.  Funds reasonably sufficient to pay bank charges may

13  be deposited therein.

14         2.  Funds belonging in part to a patient and in part

15  presently or potentially to the physician must be deposited

16  therein, but the portion belonging to the physician may be

17  withdrawn when due unless the right of the physician to

18  receive it is disputed by the patient, in which event the

19  disputed portion shall not be withdrawn until the dispute is

20  finally resolved.

21  

22  Every chiropractic physician shall maintain complete records

23  of all funds, securities, and other properties of a patient

24  coming into the possession of the physician and render

25  appropriate accounts to the patient regarding them. In

26  addition, every chiropractic physician shall promptly pay or

27  deliver to the patient, as requested by the patient, the

28  funds, securities, or other properties in the possession of

29  the physician which the patient is entitled to receive.

30         (z)  Offering to accept or accepting payment for

31  services rendered by assignment from any third-party payor

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  after offering to accept or accepting whatever the third-party

 2  payor covers as payment in full, if the effect of the offering

 3  or acceptance is to eliminate or give the impression of

 4  eliminating the need for payment by an insured of any required

 5  deductions applicable in the policy of the insured.

 6         (aa)  Failing to provide, upon request of the insured,

 7  a copy of a claim submitted to any third-party payor for

 8  service or treatment of the insured.

 9         (bb)  Advertising a fee or charge for a service or

10  treatment which is different from the fee or charge the

11  licensee submits to third-party payors for that service or

12  treatment.

13         (cc)  Advertising any reduced or discounted fees for

14  services or treatments, or advertising any free services or

15  treatments, without prominently stating in the advertisement

16  the usual fee of the licensee for the service or treatment

17  which is the subject of the discount, rebate, or free

18  offering.

19         (dd)  Using acupuncture without being certified

20  pursuant to s. 460.403(9)(f).

21         (ee)  Failing to report to the department any licensee

22  under chapter 458 or under chapter 459 who the chiropractic

23  physician or chiropractic physician's assistant knows has

24  violated the grounds for disciplinary action set out in the

25  law under which that person is licensed and who provides

26  health care services in a facility licensed under chapter 395,

27  or a health maintenance organization certificated under part I

28  of chapter 641, in which the chiropractic physician or

29  chiropractic physician's assistant also provides services.

30         (ff)  Violating any provision of this chapter or

31  chapter 456, or any rules adopted pursuant thereto.

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (2)  The board may enter an order denying licensure or

 2  imposing any of the penalties in s. 456.072(2) against any

 3  applicant for licensure or licensee who is found guilty of

 4  violating any provision of subsection (1) of this section or

 5  who is found guilty of violating any provision of s.

 6  456.072(1). In determining what action is appropriate, the

 7  board must first consider what sanctions are necessary to

 8  protect the public or to compensate the patient. Only after

 9  those sanctions have been imposed may the disciplining

10  authority consider and include in the order requirements

11  designed to rehabilitate the chiropractic physician. All costs

12  associated with compliance with orders issued under this

13  subsection are the obligation of the chiropractic physician.

14         Section 16.  For the purpose of incorporating the

15  amendment to section 456.072, Florida Statutes, in references

16  thereto, subsections (1) and (2) of section 462.14, Florida

17  Statutes, are reenacted to read:

18         462.14  Grounds for disciplinary action; action by the

19  department.--

20         (1)  The following acts constitute grounds for denial

21  of a license or disciplinary action, as specified in s.

22  456.072(2):

23         (a)  Attempting to obtain, obtaining, or renewing a

24  license to practice naturopathic medicine by bribery, by

25  fraudulent misrepresentation, or through an error of the

26  department.

27         (b)  Having a license to practice naturopathic medicine

28  revoked, suspended, or otherwise acted against, including the

29  denial of licensure, by the licensing authority of another

30  state, territory, or country.

31  

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (c)  Being convicted or found guilty, regardless of

 2  adjudication, of a crime in any jurisdiction which directly

 3  relates to the practice of naturopathic medicine or to the

 4  ability to practice naturopathic medicine. Any plea of nolo

 5  contendere shall be considered a conviction for purposes of

 6  this chapter.

 7         (d)  False, deceptive, or misleading advertising.

 8         (e)  Advertising, practicing, or attempting to practice

 9  under a name other than one's own.

10         (f)  Failing to report to the department any person who

11  the licensee knows is in violation of this chapter or of the

12  rules of the department.

13         (g)  Aiding, assisting, procuring, or advising any

14  unlicensed person to practice naturopathic medicine contrary

15  to this chapter or to a rule of the department.

16         (h)  Failing to perform any statutory or legal

17  obligation placed upon a licensed naturopathic physician.

18         (i)  Making or filing a report which the licensee knows

19  to be false, intentionally or negligently failing to file a

20  report or record required by state or federal law, willfully

21  impeding or obstructing such filing or inducing another person

22  to do so.  Such reports or records shall include only those

23  which are signed in the capacity as a licensed naturopathic

24  physician.

25         (j)  Paying or receiving any commission, bonus,

26  kickback, or rebate, or engaging in any split-fee arrangement

27  in any form whatsoever with a physician, organization, agency,

28  or person, either directly or indirectly, for patients

29  referred to providers of health care goods and services,

30  including, but not limited to, hospitals, nursing homes,

31  clinical laboratories, ambulatory surgical centers, or

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 1  pharmacies.  The provisions of this paragraph shall not be

 2  construed to prevent a naturopathic physician from receiving a

 3  fee for professional consultation services.

 4         (k)  Exercising influence within a patient-physician

 5  relationship for purposes of engaging a patient in sexual

 6  activity. A patient shall be presumed to be incapable of

 7  giving free, full, and informed consent to sexual activity

 8  with her or his physician.

 9         (l)  Making deceptive, untrue, or fraudulent

10  representations in the practice of naturopathic medicine or

11  employing a trick or scheme in the practice of naturopathic

12  medicine when such scheme or trick fails to conform to the

13  generally prevailing standards of treatment in the medical

14  community.

15         (m)  Soliciting patients, either personally or through

16  an agent, through the use of fraud, intimidation, undue

17  influence, or a form of overreaching or vexatious conduct.  A

18  "solicitation" is any communication which directly or

19  implicitly requests an immediate oral response from the

20  recipient.

21         (n)  Failing to keep written medical records justifying

22  the course of treatment of the patient, including, but not

23  limited to, patient histories, examination results, test

24  results, X rays, and records of the prescribing, dispensing

25  and administering of drugs.

26         (o)  Exercising influence on the patient or client in

27  such a manner as to exploit the patient or client for the

28  financial gain of the licensee or of a third party, which

29  shall include, but not be limited to, the promoting or selling

30  of services, goods, appliances, or drugs and the promoting or

31  advertising on any prescription form of a community pharmacy

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 1  unless the form also states "This prescription may be filled

 2  at any pharmacy of your choice."

 3         (p)  Performing professional services which have not

 4  been duly authorized by the patient or client, or her or his

 5  legal representative, except as provided in s. 743.064, s.

 6  766.103, or s. 768.13.

 7         (q)  Prescribing, dispensing, administering, mixing, or

 8  otherwise preparing a legend drug, including any controlled

 9  substance, other than in the course of the naturopathic

10  physician's professional practice.  For the purposes of this

11  paragraph, it shall be legally presumed that prescribing,

12  dispensing, administering, mixing, or otherwise preparing

13  legend drugs, including all controlled substances,

14  inappropriately or in excessive or inappropriate quantities is

15  not in the best interest of the patient and is not in the

16  course of the naturopathic physician's professional practice,

17  without regard to her or his intent.

18         (r)  Prescribing, dispensing, or administering any

19  medicinal drug appearing on any schedule set forth in chapter

20  893 by the naturopathic physician to herself or himself,

21  except one prescribed, dispensed, or administered to the

22  naturopathic physician by another practitioner authorized to

23  prescribe, dispense, or administer medicinal drugs.

24         (s)  Being unable to practice naturopathic medicine

25  with reasonable skill and safety to patients by reason of

26  illness or use of alcohol, drugs, narcotics, chemicals, or any

27  other type of material or as a result of any mental or

28  physical condition.  In enforcing this paragraph, the

29  department shall have, upon probable cause, authority to

30  compel a naturopathic physician to submit to a mental or

31  physical examination by physicians designated by the

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  department.  The failure of a naturopathic physician to submit

 2  to such an examination when so directed shall constitute an

 3  admission of the allegations against her or him upon which a

 4  default and final order may be entered without the taking of

 5  testimony or presentation of evidence, unless the failure was

 6  due to circumstances beyond the naturopathic physician's

 7  control.  A naturopathic physician affected under this

 8  paragraph shall at reasonable intervals be afforded an

 9  opportunity to demonstrate that she or he can resume the

10  competent practice of naturopathic medicine with reasonable

11  skill and safety to patients. In any proceeding under this

12  paragraph, neither the record of proceedings nor the orders

13  entered by the department may be used against a naturopathic

14  physician in any other proceeding.

15         (t)  Gross or repeated malpractice or the failure to

16  practice naturopathic medicine with that level of care, skill,

17  and treatment which is recognized by a reasonably prudent

18  similar physician as being acceptable under similar conditions

19  and circumstances.  The department shall give great weight to

20  the provisions of s. 766.102 when enforcing this paragraph.

21         (u)  Performing any procedure or prescribing any

22  therapy which, by the prevailing standards of medical practice

23  in the community, constitutes experimentation on a human

24  subject, without first obtaining full, informed, and written

25  consent.

26         (v)  Practicing or offering to practice beyond the

27  scope permitted by law or accepting and performing

28  professional responsibilities which the licensee knows or has

29  reason to know that she or he is not competent to perform.

30         (w)  Delegating professional responsibilities to a

31  person when the licensee delegating such responsibilities

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 1  knows or has reason to know that such person is not qualified

 2  by training, experience, or licensure to perform them.

 3         (x)  Violating a lawful order of the department

 4  previously entered in a disciplinary hearing or failing to

 5  comply with a lawfully issued subpoena of the department.

 6         (y)  Conspiring with another licensee or with any other

 7  person to commit an act, or committing an act, which would

 8  tend to coerce, intimidate, or preclude another licensee from

 9  lawfully advertising her or his services.

10         (z)  Procuring, or aiding or abetting in the procuring

11  of, an unlawful termination of pregnancy.

12         (aa)  Presigning blank prescription forms.

13         (bb)  Prescribing by the naturopathic physician for

14  office use any medicinal drug appearing on Schedule II in

15  chapter 893.

16         (cc)  Prescribing, ordering, dispensing, administering,

17  supplying, selling, or giving any drug which is an amphetamine

18  or sympathomimetic amine drug, or a compound designated

19  pursuant to chapter 893 as a Schedule II controlled substance

20  to or for any person except for:

21         1.  The treatment of narcolepsy; hyperkinesis;

22  behavioral syndrome in children characterized by the

23  developmentally inappropriate symptoms of moderate to severe

24  distractability, short attention span, hyperactivity,

25  emotional lability, and impulsivity; or drug-induced brain

26  dysfunction.

27         2.  The differential diagnostic psychiatric evaluation

28  of depression or the treatment of depression shown to be

29  refractory to other therapeutic modalities.

30         3.  The clinical investigation of the effects of such

31  drugs or compounds when an investigative protocol therefor is

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 1  submitted to, reviewed, and approved by the department before

 2  such investigation is begun.

 3         (dd)  Prescribing, ordering, dispensing, administering,

 4  supplying, selling, or giving growth hormones, testosterone or

 5  its analogs, human chorionic gonadotropin (HCG), or other

 6  hormones for the purpose of muscle building or to enhance

 7  athletic performance. For the purposes of this subsection, the

 8  term "muscle building" does not include the treatment of

 9  injured muscle.  A prescription written for the drug products

10  listed above may be dispensed by the pharmacist with the

11  presumption that the prescription is for legitimate medical

12  use.

13         (ee)  Violating any provision of this chapter or

14  chapter 456, or any rules adopted pursuant thereto.

15         (2)  The department may enter an order denying

16  licensure or imposing any of the penalties in s. 456.072(2)

17  against any applicant for licensure or licensee who is found

18  guilty of violating any provision of subsection (1) of this

19  section or who is found guilty of violating any provision of

20  s. 456.072(1).

21         Section 17.  For the purpose of incorporating the

22  amendment to section 456.072, Florida Statutes, in references

23  thereto, subsections (1) and (2) of section 463.016, Florida

24  Statutes, are reenacted to read:

25         463.016  Grounds for disciplinary action; action by the

26  board.--

27         (1)  The following acts constitute grounds for denial

28  of a license or disciplinary action, as specified in s.

29  456.072(2):

30         (a)  Procuring or attempting to procure a license to

31  practice optometry by bribery, by fraudulent

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  misrepresentations, or through an error of the department or

 2  board.

 3         (b)  Procuring or attempting to procure a license for

 4  any other person by making or causing to be made any false

 5  representation.

 6         (c)  Having a license to practice optometry revoked,

 7  suspended, or otherwise acted against, including the denial of

 8  licensure, by the licensing authority of another jurisdiction.

 9         (d)  Being convicted or found guilty, regardless of

10  adjudication, of a crime in any jurisdiction which directly

11  relates to the practice of optometry or to the ability to

12  practice optometry.  Any plea of nolo contendere shall be

13  considered a conviction for the purposes of this chapter.

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 do so.  Such reports or records

19  shall include only those which are signed by the licensee in

20  her or his capacity as a licensed practitioner.

21         (f)  Advertising goods or services in a manner which is

22  fraudulent, false, deceptive, or misleading in form or

23  content.

24         (g)  Fraud or deceit, negligence or incompetency, or

25  misconduct in the practice of optometry.

26         (h)  A violation or repeated violations of provisions

27  of this chapter, or of chapter 456, and any rules promulgated

28  pursuant thereto.

29         (i)  Conspiring with another licensee or with any

30  person to commit an act, or committing an act, which would

31  

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  coerce, intimidate, or preclude another licensee from lawfully

 2  advertising her or his services.

 3         (j)  Willfully submitting to any third-party payor a

 4  claim for services which were not provided to a patient.

 5         (k)  Failing to keep written optometric records about

 6  the examinations, treatments, and prescriptions for patients.

 7         (l)  Willfully failing to report any person who the

 8  licensee knows is in violation of this chapter or of rules of

 9  the department or the board.

10         (m)  Gross or repeated malpractice.

11         (n)  Practicing with a revoked, suspended, inactive, or

12  delinquent license.

13         (o)  Being unable to practice optometry with reasonable

14  skill and safety to patients by reason of illness or use of

15  alcohol, drugs, narcotics, chemicals, or any other type of

16  material or as a result of any mental or physical condition.

17  A licensed practitioner affected under this paragraph shall at

18  reasonable intervals be afforded an opportunity to demonstrate

19  that she or he can resume the competent practice of optometry

20  with reasonable skill and safety to patients.

21         (p)  Having been disciplined by a regulatory agency in

22  another state for any offense that would constitute a

23  violation of Florida laws or rules regulating optometry.

24         (q)  Violating any provision of s. 463.014 or s.

25  463.015.

26         (r)  Violating any lawful order of the board or

27  department, previously entered in a disciplinary hearing, or

28  failing to comply with a lawfully issued subpoena of the board

29  or department.

30         (s)  Practicing or offering to practice beyond the

31  scope permitted by law or accepting and performing

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  professional responsibilities which the licensed practitioner

 2  knows or has reason to know she or he is not competent to

 3  perform.

 4         (t)  Violating any provision of this chapter or chapter

 5  456, or any rules adopted pursuant thereto.

 6         (2)  The department may enter an order imposing any of

 7  the penalties in s. 456.072(2) against any licensee who is

 8  found guilty of violating any provision of subsection (1) of

 9  this section or who is found guilty of violating any provision

10  of s. 456.072(1).

11         Section 18.  For the purpose of incorporating the

12  amendment to section 456.072, Florida Statutes, in references

13  thereto, subsections (1) and (2) of section 464.018, Florida

14  Statutes, are reenacted to read:

15         464.018  Disciplinary actions.--

16         (1)  The following acts constitute grounds for denial

17  of a license or disciplinary action, as specified in s.

18  456.072(2):

19         (a)  Procuring, attempting to procure, or renewing a

20  license to practice nursing by bribery, by knowing

21  misrepresentations, or through an error of the department or

22  the board.

23         (b)  Having a license to practice nursing revoked,

24  suspended, or otherwise acted against, including the denial of

25  licensure, by the licensing authority of another state,

26  territory, or country.

27         (c)  Being convicted or found guilty of, or entering a

28  plea of nolo contendere to, regardless of adjudication, a

29  crime in any jurisdiction which directly relates to the

30  practice of nursing or to the ability to practice nursing.

31  

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 1         (d)  Being found guilty, regardless of adjudication, of

 2  any of the following offenses:

 3         1.  A forcible felony as defined in chapter 776.

 4         2.  A violation of chapter 812, relating to theft,

 5  robbery, and related crimes.

 6         3.  A violation of chapter 817, relating to fraudulent

 7  practices.

 8         4.  A violation of chapter 800, relating to lewdness

 9  and indecent exposure.

10         5.  A violation of chapter 784, relating to assault,

11  battery, and culpable negligence.

12         6.  A violation of chapter 827, relating to child

13  abuse.

14         7.  A violation of chapter 415, relating to protection

15  from abuse, neglect, and exploitation.

16         8.  A violation of chapter 39, relating to child abuse,

17  abandonment, and neglect.

18         (e)  Having been found guilty of, regardless of

19  adjudication, or entered a plea of nolo contendere or guilty

20  to, any offense prohibited under s. 435.03 or under any

21  similar statute of another jurisdiction; or having committed

22  an act which constitutes domestic violence as defined in s.

23  741.28.

24         (f)  Making or filing a false report or record, which

25  the licensee knows to be false, intentionally or negligently

26  failing to file a report or record required by state or

27  federal law, willfully impeding or obstructing such filing or

28  inducing another person to do so.  Such reports or records

29  shall include only those which are signed in the nurse's

30  capacity as a licensed nurse.

31         (g)  False, misleading, or deceptive advertising.

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 1         (h)  Unprofessional conduct, which shall include, but

 2  not be limited to, any departure from, or the failure to

 3  conform to, the minimal standards of acceptable and prevailing

 4  nursing practice, in which case actual injury need not be

 5  established.

 6         (i)  Engaging or attempting to engage in the

 7  possession, sale, or distribution of controlled substances as

 8  set forth in chapter 893, for any other than legitimate

 9  purposes authorized by this part.

10         (j)  Being unable to practice nursing with reasonable

11  skill and safety to patients by reason of illness or use of

12  alcohol, drugs, narcotics, or chemicals or any other type of

13  material or as a result of any mental or physical condition.

14  In enforcing this paragraph, the department shall have, upon a

15  finding of the secretary or the secretary's designee that

16  probable cause exists to believe that the licensee is unable

17  to practice nursing because of the reasons stated in this

18  paragraph, the authority to issue an order to compel a

19  licensee to submit to a mental or physical examination by

20  physicians designated by the department.  If the licensee

21  refuses to comply with such order, the department's order

22  directing such examination may be enforced by filing a

23  petition for enforcement in the circuit court where the

24  licensee resides or does business. The licensee against whom

25  the petition is filed shall not be named or identified by

26  initials in any public court records or documents, and the

27  proceedings shall be closed to the public. The department

28  shall be entitled to the summary procedure provided in s.

29  51.011. A nurse affected by the provisions of this paragraph

30  shall at reasonable intervals be afforded an opportunity to

31  

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  demonstrate that she or he can resume the competent practice

 2  of nursing with reasonable skill and safety to patients.

 3         (k)  Failing to report to the department any person who

 4  the licensee knows is in violation of this part or of the

 5  rules of the department or the board; however, if the licensee

 6  verifies that such person is actively participating in a

 7  board-approved program for the treatment of a physical or

 8  mental condition, the licensee is required to report such

 9  person only to an impaired professionals consultant.

10         (l)  Knowingly violating any provision of this part, a

11  rule of the board or the department, or a lawful order of the

12  board or department previously entered in a disciplinary

13  proceeding or failing to comply with a lawfully issued

14  subpoena of the department.

15         (m)  Failing to report to the department any licensee

16  under chapter 458 or under chapter 459 who the nurse knows has

17  violated the grounds for disciplinary action set out in the

18  law under which that person is licensed and who provides

19  health care services in a facility licensed under chapter 395,

20  or a health maintenance organization certificated under part I

21  of chapter 641, in which the nurse also provides services.

22         (n)  Violating any provision of this chapter or chapter

23  456, or any rules adopted pursuant thereto.

24         (2)  The board may enter an order denying licensure or

25  imposing any of the penalties in s. 456.072(2) against any

26  applicant for licensure or licensee who is found guilty of

27  violating any provision of subsection (1) of this section or

28  who is found guilty of violating any provision of s.

29  456.072(1).

30         Section 19.  For the purpose of incorporating the

31  amendment to section 456.072, Florida Statutes, in references

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 1  thereto, subsections (1) and (2) of section 465.016, Florida

 2  Statutes, are reenacted to read:

 3         465.016  Disciplinary actions.--

 4         (1)  The following acts constitute grounds for denial

 5  of a license or disciplinary action, as specified in s.

 6  456.072(2):

 7         (a)  Obtaining a license by misrepresentation or fraud

 8  or through an error of the department or the board.

 9         (b)  Procuring or attempting to procure a license for

10  any other person by making or causing to be made any false

11  representation.

12         (c)  Permitting any person not licensed as a pharmacist

13  in this state or not registered as an intern in this state, or

14  permitting a registered intern who is not acting under the

15  direct and immediate personal supervision of a licensed

16  pharmacist, to fill, compound, or dispense any prescriptions

17  in a pharmacy owned and operated by such pharmacist or in a

18  pharmacy where such pharmacist is employed or on duty.

19         (d)  Being unfit or incompetent to practice pharmacy by

20  reason of:

21         1.  Habitual intoxication.

22         2.  The misuse or abuse of any medicinal drug appearing

23  in any schedule set forth in chapter 893.

24         3.  Any abnormal physical or mental condition which

25  threatens the safety of persons to whom she or he might sell

26  or dispense prescriptions, drugs, or medical supplies or for

27  whom she or he might manufacture, prepare, or package, or

28  supervise the manufacturing, preparation, or packaging of,

29  prescriptions, drugs, or medical supplies.

30         (e)  Violating chapter 499; 21 U.S.C. ss. 301-392,

31  known as the Federal Food, Drug, and Cosmetic Act; 21 U.S.C.

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 1  ss. 821 et seq., known as the Comprehensive Drug Abuse

 2  Prevention and Control Act; or chapter 893.

 3         (f)  Having been convicted or found guilty, regardless

 4  of adjudication, in a court of this state or other

 5  jurisdiction, of a crime which directly relates to the ability

 6  to practice pharmacy or to the practice of pharmacy.  A plea

 7  of nolo contendere constitutes a conviction for purposes of

 8  this provision.

 9         (g)  Using in the compounding of a prescription, or

10  furnishing upon prescription, an ingredient or article

11  different in any manner from the ingredient or article

12  prescribed, except as authorized in s. 465.019(6) or s.

13  465.025.

14         (h)  Having been disciplined by a regulatory agency in

15  another state for any offense that would constitute a

16  violation of this chapter.

17         (i)  Compounding, dispensing, or distributing a legend

18  drug, including any controlled substance, other than in the

19  course of the professional practice of pharmacy.  For purposes

20  of this paragraph, it shall be legally presumed that the

21  compounding, dispensing, or distributing of legend drugs in

22  excessive or inappropriate quantities is not in the best

23  interests of the patient and is not in the course of the

24  professional practice of pharmacy.

25         (j)  Making or filing a report or record which the

26  licensee knows to be false, intentionally or negligently

27  failing to file a report or record required by federal or

28  state law, willfully impeding or obstructing such filing, or

29  inducing another person to do so.  Such reports or records

30  include only those which the licensee is required to make or

31  file in her or his capacity as a licensed pharmacist.

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (k)  Failing to make prescription fee or price

 2  information readily available by failing to provide such

 3  information upon request and upon the presentation of a

 4  prescription for pricing or dispensing.  Nothing in this

 5  section shall be construed to prohibit the quotation of price

 6  information on a prescription drug to a potential consumer by

 7  telephone.

 8         (l)  Placing in the stock of any pharmacy any part of

 9  any prescription compounded or dispensed which is returned by

10  a patient; however, in a hospital, nursing home, correctional

11  facility, or extended care facility in which unit-dose

12  medication is dispensed to inpatients, each dose being

13  individually sealed and the individual unit dose or unit-dose

14  system labeled with the name of the drug, dosage strength,

15  manufacturer's control number, and expiration date, if any,

16  the unused unit dose of medication may be returned to the

17  pharmacy for redispensing.  Each pharmacist shall maintain

18  appropriate records for any unused or returned medicinal

19  drugs.

20         (m)  Being unable to practice pharmacy with reasonable

21  skill and safety by reason of illness, use of drugs,

22  narcotics, chemicals, or any other type of material or as a

23  result of any mental or physical condition.  A pharmacist

24  affected under this paragraph shall at reasonable intervals be

25  afforded an opportunity to demonstrate that she or he can

26  resume the competent practice of pharmacy with reasonable

27  skill and safety to her or his customers.

28         (n)  Violating a rule of the board or department or

29  violating an order of the board or department previously

30  entered in a disciplinary hearing.

31  

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 1         (o)  Failing to report to the department any licensee

 2  under chapter 458 or under chapter 459 who the pharmacist

 3  knows has violated the grounds for disciplinary action set out

 4  in the law under which that person is licensed and who

 5  provides health care services in a facility licensed under

 6  chapter 395, or a health maintenance organization certificated

 7  under part I of chapter 641, in which the pharmacist also

 8  provides services.

 9         (p)  Failing to notify the Board of Pharmacy in writing

10  within 20 days of the commencement or cessation of the

11  practice of the profession of pharmacy in Florida when such

12  commencement or cessation of the practice of the profession of

13  pharmacy in Florida was a result of a pending or completed

14  disciplinary action or investigation in another jurisdiction.

15         (q)  Using or releasing a patient's records except as

16  authorized by this chapter and chapter 456.

17         (r)  Violating any provision of this chapter or chapter

18  456, or any rules adopted pursuant thereto.

19         (2)  The board may enter an order denying licensure or

20  imposing any of the penalties in s. 456.072(2) against any

21  applicant for licensure or licensee who is found guilty of

22  violating any provision of subsection (1) of this section or

23  who is found guilty of violating any provision of s.

24  456.072(1).

25         Section 20.  For the purpose of incorporating the

26  amendment to section 456.072, Florida Statutes, in references

27  thereto, subsections (1) and (2) of section 466.028, Florida

28  Statutes, are reenacted to read:

29         466.028  Grounds for disciplinary action; action by the

30  board.--

31  

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 1         (1)  The following acts constitute grounds for denial

 2  of a license or disciplinary action, as specified in s.

 3  456.072(2):

 4         (a)  Attempting to obtain, obtaining, or renewing a

 5  license under this chapter by bribery, fraudulent

 6  misrepresentations, or through an error of the department or

 7  the board.

 8         (b)  Having a license to practice dentistry or dental

 9  hygiene revoked, suspended, or otherwise acted against,

10  including the denial of licensure, by the licensing authority

11  of another state, territory, or country.

12         (c)  Being convicted or found guilty of or entering a

13  plea of nolo contendere to, regardless of adjudication, a

14  crime in any jurisdiction which relates to the practice of

15  dentistry or dental hygiene.  A plea of nolo contendere shall

16  create a rebuttable presumption of guilt to the underlying

17  criminal charges.

18         (d)  Advertising goods or services in a manner which is

19  fraudulent, false, deceptive, or misleading in form or content

20  contrary to s. 466.019 or rules of the board adopted pursuant

21  thereto.

22         (e)  Advertising, practicing, or attempting to practice

23  under a name other than one's own.

24         (f)  Failing to report to the department any person who

25  the licensee knows, or has reason to believe, is clearly in

26  violation of this chapter or of the rules of the department or

27  the board.

28         (g)  Aiding, assisting, procuring, or advising any

29  unlicensed person to practice dentistry or dental hygiene

30  contrary to this chapter or to a rule of the department or the

31  board.

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (h)  Being employed by any corporation, organization,

 2  group, or person other than a dentist or a professional

 3  corporation or limited liability company composed of dentists

 4  to practice dentistry.

 5         (i)  Failing to perform any statutory or legal

 6  obligation placed upon a licensee.

 7         (j)  Making or filing a report which the licensee knows

 8  to be false, failing to file a report or record required by

 9  state or federal law, knowingly impeding or obstructing such

10  filing or inducing another person to do so.  Such reports or

11  records shall include only those which are signed in the

12  capacity as a licensee.

13         (k)  Committing any act which would constitute sexual

14  battery, as defined in chapter 794, upon a patient or

15  intentionally touching the sexual organ of a patient.

16         (l)  Making deceptive, untrue, or fraudulent

17  representations in or related to the practice of dentistry.

18         (m)  Failing to keep written dental records and medical

19  history records justifying the course of treatment of the

20  patient including, but not limited to, patient histories,

21  examination results, test results, and X rays, if taken.

22         (n)  Failing to make available to a patient or client,

23  or to her or his legal representative or to the department if

24  authorized in writing by the patient, copies of documents in

25  the possession or under control of the licensee which relate

26  to the patient or client.

27         (o)  Performing professional services which have not

28  been duly authorized by the patient or client, or her or his

29  legal representative, except as provided in ss. 766.103 and

30  768.13.

31  

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (p)  Prescribing, procuring, dispensing, administering,

 2  mixing, or otherwise preparing a legend drug, including any

 3  controlled substance, other than in the course of the

 4  professional practice of the dentist.  For the purposes of

 5  this paragraph, it shall be legally presumed that prescribing,

 6  procuring, dispensing, administering, mixing, or otherwise

 7  preparing legend drugs, including all controlled substances,

 8  in excessive or inappropriate quantities is not in the best

 9  interest of the patient and is not in the course of the

10  professional practice of the dentist, without regard to her or

11  his intent.

12         (q)  Prescribing, procuring, dispensing, or

13  administering any medicinal drug appearing on any schedule set

14  forth in chapter 893, by a dentist to herself or himself,

15  except those prescribed, dispensed, or administered to the

16  dentist by another practitioner authorized to prescribe them.

17         (r)  Prescribing, procuring, ordering, dispensing,

18  administering, supplying, selling, or giving any drug which is

19  a Schedule II amphetamine or a Schedule II sympathomimetic

20  amine drug or a compound thereof, pursuant to chapter 893, to

21  or for any person except for the clinical investigation of the

22  effects of such drugs or compounds when an investigative

23  protocol therefor is submitted to, and reviewed and approved

24  by, the board before such investigation is begun.

25         (s)  Being unable to practice her or his profession

26  with reasonable skill and safety to patients by reason of

27  illness or use of alcohol, drugs, narcotics, chemicals, or any

28  other type of material or as a result of any mental or

29  physical condition.  In enforcing this paragraph, the

30  department shall have, upon a finding of the secretary or her

31  or his designee that probable cause exists to believe that the

                                  67

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    Florida House of Representatives - 2002             CS/HB 15-E

    611-186-02E






 1  licensee is unable to practice dentistry or dental hygiene

 2  because of the reasons stated in this paragraph, the authority

 3  to issue an order to compel a licensee to submit to a mental

 4  or physical examination by physicians designated by the

 5  department.  If the licensee refuses to comply with such

 6  order, the department's order directing such examination may

 7  be enforced by filing a petition for enforcement in the

 8  circuit court where the licensee resides or does business.

 9  The licensee against whom the petition is filed shall not be

10  named or identified by initials in any public court records or

11  documents, and the proceedings shall be closed to the public.

12  The department shall be entitled to the summary procedure

13  provided in s. 51.011. A licensee affected under this

14  paragraph shall at reasonable intervals be afforded an

15  opportunity to demonstrate that she or he can resume the

16  competent practice of her or his profession with reasonable

17  skill and safety to patients.

18         (t)  Fraud, deceit, or misconduct in the practice of

19  dentistry or dental hygiene.

20         (u)  Failure to provide and maintain reasonable

21  sanitary facilities and conditions.

22         (v)  Failure to provide adequate radiation safeguards.

23         (w)  Performing any procedure or prescribing any

24  therapy which, by the prevailing standards of dental practice

25  in the community, would constitute experimentation on human

26  subjects, without first obtaining full, informed, and written

27  consent.

28         (x)  Being guilty of incompetence or negligence by

29  failing to meet the minimum standards of performance in

30  diagnosis and treatment when measured against generally

31  prevailing peer performance, including, but not limited to,

                                  68

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  the undertaking of diagnosis and treatment for which the

 2  dentist is not qualified by training or experience or being

 3  guilty of dental malpractice. For purposes of this paragraph,

 4  it shall be legally presumed that a dentist is not guilty of

 5  incompetence or negligence by declining to treat an individual

 6  if, in the dentist's professional judgment, the dentist or a

 7  member of her or his clinical staff is not qualified by

 8  training and experience, or the dentist's treatment facility

 9  is not clinically satisfactory or properly equipped to treat

10  the unique characteristics and health status of the dental

11  patient, provided the dentist refers the patient to a

12  qualified dentist or facility for appropriate treatment.  As

13  used in this paragraph, "dental malpractice" includes, but is

14  not limited to, three or more claims within the previous

15  5-year period which resulted in indemnity being paid, or any

16  single indemnity paid in excess of $5,000 in a judgment or

17  settlement, as a result of negligent conduct on the part of

18  the dentist.

19         (y)  Practicing or offering to practice beyond the

20  scope permitted by law or accepting and performing

21  professional responsibilities which the licensee knows or has

22  reason to know that she or he is not competent to perform.

23         (z)  Delegating professional responsibilities to a

24  person who is not qualified by training, experience, or

25  licensure to perform them.

26         (aa)  The violation of a lawful order of the board or

27  department previously entered in a disciplinary hearing; or

28  failure to comply with a lawfully issued subpoena of the board

29  or department.

30         (bb)  Conspiring with another licensee or with any

31  person to commit an act, or committing an act, which would

                                  69

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  tend to coerce, intimidate, or preclude another licensee from

 2  lawfully advertising her or his services.

 3         (cc)  Being adjudged mentally incompetent in this or

 4  any other state, the discipline for which shall last only so

 5  long as the adjudication.

 6         (dd)  Presigning blank prescription or laboratory work

 7  order forms.

 8         (ee)  Prescribing, ordering, dispensing, administering,

 9  supplying, selling, or giving growth hormones, testosterone or

10  its analogs, human chorionic gonadotropin (HCG), or other

11  hormones for the purpose of muscle building or to enhance

12  athletic performance. For the purposes of this subsection, the

13  term "muscle building" does not include the treatment of

14  injured muscle.  A prescription written for the drug products

15  listed above may be dispensed by the pharmacist with the

16  presumption that the prescription is for legitimate medical

17  use.

18         (ff)  Operating or causing to be operated a dental

19  office in such a manner as to result in dental treatment that

20  is below minimum acceptable standards of performance for the

21  community. This includes, but is not limited to, the use of

22  substandard materials or equipment, the imposition of time

23  limitations within which dental procedures are to be

24  performed, or the failure to maintain patient records as

25  required by this chapter.

26         (gg)  Administering anesthesia in a manner which

27  violates rules of the board adopted pursuant to s. 466.017.

28         (hh)  Failing to report to the department any licensee

29  under chapter 458 or chapter 459 who the dentist knows has

30  violated the grounds for disciplinary action set out in the

31  law under which that person is licensed and who provides

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    Florida House of Representatives - 2002             CS/HB 15-E

    611-186-02E






 1  health care services in a facility licensed under chapter 395,

 2  or a health maintenance organization certificated under part I

 3  of chapter 641, in which the dentist also provides services.

 4         (ii)  Failing to report to the board, in writing,

 5  within 30 days if action has been taken against one's license

 6  to practice dentistry in another state, territory, or country.

 7         (jj)  Advertising specialty services in violation of

 8  this chapter.

 9         (kk)  Allowing any person other than another dentist or

10  a professional corporation or limited liability company

11  composed of dentists to direct, control, or interfere with a

12  dentist's clinical judgment; however, this paragraph may not

13  be construed to limit a patient's right of informed consent.

14  To direct, control, or interfere with a dentist's clinical

15  judgment may not be interpreted to mean dental services

16  contractually excluded, the application of alternative

17  benefits that may be appropriate given the dentist's

18  prescribed course of treatment, or the application of

19  contractual provisions and scope of coverage determinations in

20  comparison with a dentist's prescribed treatment on behalf of

21  a covered person by an insurer, health maintenance

22  organization, or a prepaid limited health service

23  organization.

24         (ll)  Violating any provision of this chapter or

25  chapter 456, or any rules adopted pursuant thereto.

26         (2)  The board may enter an order denying licensure or

27  imposing any of the penalties in s. 456.072(2) against any

28  applicant for licensure or licensee who is found guilty of

29  violating any provision of subsection (1) of this section or

30  who is found guilty of violating any provision of s.

31  456.072(1).

                                  71

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    Florida House of Representatives - 2002             CS/HB 15-E

    611-186-02E






 1         Section 21.  For the purpose of incorporating the

 2  amendment to section 456.072, Florida Statutes, in references

 3  thereto, subsections (1) and (2) of section 467.203, Florida

 4  Statutes, are reenacted to read:

 5         467.203  Disciplinary actions; penalties.--

 6         (1)  The following acts constitute grounds for denial

 7  of a license or disciplinary action, as specified in s.

 8  456.072(2):

 9         (a)  Procuring, attempting to procure, or renewing a

10  license to practice midwifery by bribery, by fraudulent

11  misrepresentation, or through an error of the department.

12         (b)  Having a license to practice midwifery revoked,

13  suspended, or otherwise acted against, including being denied

14  licensure, by the licensing authority of another state,

15  territory, or country.

16         (c)  Being convicted or found guilty, regardless of

17  adjudication, in any jurisdiction of a crime which directly

18  relates to the practice of midwifery or to the ability to

19  practice midwifery.  A plea of nolo contendere shall be

20  considered a conviction for purposes of this provision.

21         (d)  Making or filing a false report or record, which

22  the licensee knows to be false; intentionally or negligently

23  failing to file a report or record required by state or

24  federal law; or willfully impeding or obstructing such filing

25  or inducing another to do so.  Such reports or records shall

26  include only those which are signed in the midwife's capacity

27  as a licensed midwife.

28         (e)  Advertising falsely, misleadingly, or deceptively.

29         (f)  Engaging in unprofessional conduct, which

30  includes, but is not limited to, any departure from, or the

31  failure to conform to, the standards of practice of midwifery

                                  72

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  as established by the department, in which case actual injury

 2  need not be established.

 3         (g)  Being unable to practice midwifery with reasonable

 4  skill and safety to patients by reason of illness;

 5  drunkenness; or use of drugs, narcotics, chemicals, or other

 6  materials or as a result of any mental or physical condition.

 7  A midwife affected under this paragraph shall, at reasonable

 8  intervals, be afforded an opportunity to demonstrate that he

 9  or she can resume the competent practice of midwifery with

10  reasonable skill and safety.

11         (h)  Failing to report to the department any person who

12  the licensee knows is in violation of this chapter or of the

13  rules of the department.

14         (i)  Violating any lawful order of the department

15  previously entered in a disciplinary proceeding or failing to

16  comply with a lawfully issued subpoena of the department.

17         (j)  Violating any provision of this chapter or chapter

18  456, or any rules adopted pursuant thereto.

19         (2)  The department may enter an order denying

20  licensure or imposing any of the penalties in s. 456.072(2)

21  against any applicant for licensure or licensee who is found

22  guilty of violating any provision of subsection (1) of this

23  section or who is found guilty of violating any provision of

24  s. 456.072(1).

25         Section 22.  For the purpose of incorporating the

26  amendment to section 456.072, Florida Statutes, in references

27  thereto, subsections (1) and (2) of section 468.1295, Florida

28  Statutes, are reenacted to read:

29         468.1295  Disciplinary proceedings.--

30  

31  

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (1)  The following acts constitute grounds for denial

 2  of a license or disciplinary action, as specified in s.

 3  456.072(2):

 4         (a)  Procuring or attempting to procure a license by

 5  bribery, by fraudulent misrepresentation, or through an error

 6  of the department or the board.

 7         (b)  Having a license revoked, suspended, or otherwise

 8  acted against, including denial of licensure, by the licensing

 9  authority of another state, territory, or country.

10         (c)  Being convicted or found guilty of, or entering a

11  plea of nolo contendere to, regardless of adjudication, a

12  crime in any jurisdiction which directly relates to the

13  practice of speech-language pathology or audiology.

14         (d)  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 records 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 report or record shall include only those reports or

20  records which are signed in one's capacity as a licensed

21  speech-language pathologist or audiologist.

22         (e)  Advertising goods or services in a manner which is

23  fraudulent, false, deceptive, or misleading in form or

24  content.

25         (f)  Being proven guilty of fraud or deceit or of

26  negligence, incompetency, or misconduct in the practice of

27  speech-language pathology or audiology.

28         (g)  Violating a lawful order of the board or

29  department previously entered in a disciplinary hearing, or

30  failing to comply with a lawfully issued subpoena of the board

31  or department.

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (h)  Practicing with a revoked, suspended, inactive, or

 2  delinquent license.

 3         (i)  Using, or causing or promoting the use of, any

 4  advertising matter, promotional literature, testimonial,

 5  guarantee, warranty, label, brand, insignia, or other

 6  representation, however disseminated or published, which is

 7  misleading, deceiving, or untruthful.

 8         (j)  Showing or demonstrating or, in the event of sale,

 9  delivery of a product unusable or impractical for the purpose

10  represented or implied by such action.

11         (k)  Failing to submit to the board on an annual basis,

12  or such other basis as may be provided by rule, certification

13  of testing and calibration of such equipment as designated by

14  the board and on the form approved by the board.

15         (l)  Aiding, assisting, procuring, employing, or

16  advising any licensee or business entity to practice

17  speech-language pathology or audiology contrary to this part,

18  chapter 456, or any rule adopted pursuant thereto.

19         (m)  Misrepresenting the professional services

20  available in the fitting, sale, adjustment, service, or repair

21  of a hearing aid, or using any other term or title which might

22  connote the availability of professional services when such

23  use is not accurate.

24         (n)  Representing, advertising, or implying that a

25  hearing aid or its repair is guaranteed without providing full

26  disclosure of the identity of the guarantor; the nature,

27  extent, and duration of the guarantee; and the existence of

28  conditions or limitations imposed upon the guarantee.

29         (o)  Representing, directly or by implication, that a

30  hearing aid utilizing bone conduction has certain specified

31  features, such as the absence of anything in the ear or

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  leading to the ear, or the like, without disclosing clearly

 2  and conspicuously that the instrument operates on the bone

 3  conduction principle and that in many cases of hearing loss

 4  this type of instrument may not be suitable.

 5         (p)  Stating or implying that the use of any hearing

 6  aid will improve or preserve hearing or prevent or retard the

 7  progression of a hearing impairment or that it will have any

 8  similar or opposite effect.

 9         (q)  Making any statement regarding the cure of the

10  cause of a hearing impairment by the use of a hearing aid.

11         (r)  Representing or implying that a hearing aid is or

12  will be "custom-made," "made to order," or

13  "prescription-made," or in any other sense specially

14  fabricated for an individual, when such is not the case.

15         (s)  Canvassing from house to house or by telephone,

16  either in person or by an agent, for the purpose of selling a

17  hearing aid, except that contacting persons who have evidenced

18  an interest in hearing aids, or have been referred as in need

19  of hearing aids, shall not be considered canvassing.

20         (t)  Failing to notify the department in writing of a

21  change in current mailing and place-of-practice address within

22  30 days after such change.

23         (u)  Failing to provide all information as described in

24  ss. 468.1225(5)(b), 468.1245(1), and 468.1246.

25         (v)  Exercising influence on a client in such a manner

26  as to exploit the client for financial gain of the licensee or

27  of a third party.

28         (w)  Practicing or offering to practice beyond the

29  scope permitted by law or accepting and performing

30  professional responsibilities the licensee or

31  

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  certificateholder knows, or has reason to know, the licensee

 2  or certificateholder is not competent to perform.

 3         (x)  Aiding, assisting, procuring, or employing any

 4  unlicensed person to practice speech-language pathology or

 5  audiology.

 6         (y)  Delegating or contracting for the performance of

 7  professional responsibilities by a person when the licensee

 8  delegating or contracting for performance of such

 9  responsibilities knows, or has reason to know, such person is

10  not qualified by training, experience, and authorization to

11  perform them.

12         (z)  Committing any act upon a patient or client which

13  would constitute sexual battery or which would constitute

14  sexual misconduct as defined pursuant to s. 468.1296.

15         (aa)  Being unable to practice the profession for which

16  he or she is licensed or certified under this chapter with

17  reasonable skill or competence as a result of any mental or

18  physical condition or by reason of illness, drunkenness, or

19  use of drugs, narcotics, chemicals, or any other substance. In

20  enforcing this paragraph, upon a finding by the secretary, his

21  or her designee, or the board that probable cause exists to

22  believe that the licensee or certificateholder is unable to

23  practice the profession because of the reasons stated in this

24  paragraph, the department shall have the authority to compel a

25  licensee or certificateholder to submit to a mental or

26  physical examination by a physician, psychologist, clinical

27  social worker, marriage and family therapist, or mental health

28  counselor designated by the department or board.  If the

29  licensee or certificateholder refuses to comply with the

30  department's order directing the examination, such order may

31  be enforced by filing a petition for enforcement in the

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    Florida House of Representatives - 2002             CS/HB 15-E

    611-186-02E






 1  circuit court in the circuit in which the licensee or

 2  certificateholder resides or does business.  The department

 3  shall be entitled to the summary procedure provided in s.

 4  51.011.  A licensee or certificateholder affected under this

 5  paragraph shall at reasonable intervals be afforded an

 6  opportunity to demonstrate that he or she can resume the

 7  competent practice for which he or she is licensed or

 8  certified with reasonable skill and safety to patients.

 9         (bb)  Violating any provision of this chapter or

10  chapter 456, or any rules adopted pursuant thereto.

11         (2)  The board may enter an order denying licensure or

12  imposing any of the penalties in s. 456.072(2) against any

13  applicant for licensure or licensee who is found guilty of

14  violating any provision of subsection (1) of this section or

15  who is found guilty of violating any provision of s.

16  456.072(1).

17         Section 23.  For the purpose of incorporating the

18  amendment to section 456.072, Florida Statutes, in references

19  thereto, subsections (1) and (2) of section 468.1755, Florida

20  Statutes, are reenacted to read:

21         468.1755  Disciplinary proceedings.--

22         (1)  The following acts constitute grounds for denial

23  of a license or disciplinary action, as specified in s.

24  456.072(2):

25         (a)  Violation of any provision of s. 456.072(1) or s.

26  468.1745(1).

27         (b)  Attempting to procure a license to practice

28  nursing home administration by bribery, by fraudulent

29  misrepresentation, or through an error of the department or

30  the board.

31  

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (c)  Having a license to practice nursing home

 2  administration revoked, suspended, or otherwise acted against,

 3  including the denial of licensure, by the licensing authority

 4  of another state, territory, or country.

 5         (d)  Being convicted or found guilty, regardless of

 6  adjudication, of a crime in any jurisdiction which relates to

 7  the practice of nursing home administration or the ability to

 8  practice nursing home administration.  Any plea of nolo

 9  contendere shall be considered a conviction for purposes of

10  this part.

11         (e)  Making or filing a report or record which the

12  licensee knows to be false, intentionally failing to file a

13  report or record required by state or federal law, willfully

14  impeding or obstructing such filing, or inducing another

15  person to impede or obstruct such filing.  Such reports or

16  records shall include only those which are signed in the

17  capacity of a licensed nursing home administrator.

18         (f)  Authorizing the discharge or transfer of a

19  resident for a reason other than those provided in ss. 400.022

20  and 400.0255.

21         (g)  Advertising goods or services in a manner which is

22  fraudulent, false, deceptive, or misleading in form or

23  content.

24         (h)  Fraud or deceit, negligence, incompetence, or

25  misconduct in the practice of nursing home administration.

26         (i)  Violation of a lawful order of the board or

27  department previously entered in a disciplinary hearing or

28  failing to comply with a lawfully issued subpoena of the board

29  or department.

30         (j)  Practicing with a revoked, suspended, inactive, or

31  delinquent license.

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (k)  Repeatedly acting in a manner inconsistent with

 2  the health, safety, or welfare of the patients of the facility

 3  in which he or she is the administrator.

 4         (l)  Being unable to practice nursing home

 5  administration with reasonable skill and safety to patients by

 6  reason of illness, drunkenness, use of drugs, narcotics,

 7  chemicals, or any other material or substance or as a result

 8  of any mental or physical condition.  In enforcing this

 9  paragraph, upon a finding of the secretary or his or her

10  designee that probable cause exists to believe that the

11  licensee is unable to serve as a nursing home administrator

12  due to the reasons stated in this paragraph, the department

13  shall have the authority to issue an order to compel the

14  licensee to submit to a mental or physical examination by a

15  physician designated by the department. If the licensee

16  refuses to comply with such order, the department's order

17  directing such examination may be enforced by filing a

18  petition for enforcement in the circuit court where the

19  licensee resides or serves as a nursing home administrator.

20  The licensee against whom the petition is filed shall not be

21  named or identified by initials in any public court records or

22  documents, and the proceedings shall be closed to the public.

23  The department shall be entitled to the summary procedure

24  provided in s. 51.011.  A licensee affected under this

25  paragraph shall have the opportunity, at reasonable intervals,

26  to demonstrate that he or she can resume the competent

27  practice of nursing home administration with reasonable skill

28  and safety to patients.

29         (m)  Willfully or repeatedly violating any of the

30  provisions of the law, code, or rules of the licensing or

31  supervising authority or agency of the state or political

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    Florida House of Representatives - 2002             CS/HB 15-E

    611-186-02E






 1  subdivision thereof having jurisdiction of the operation and

 2  licensing of nursing homes.

 3         (n)  Paying, giving, causing to be paid or given, or

 4  offering to pay or to give to any person a commission or other

 5  valuable consideration for the solicitation or procurement,

 6  either directly or indirectly, of nursing home usage.

 7         (o)  Willfully permitting unauthorized disclosure of

 8  information relating to a patient or his or her records.

 9         (p)  Discriminating with respect to patients,

10  employees, or staff on account of race, religion, color, sex,

11  or national origin.

12         (q)  Failing to implement an ongoing quality assurance

13  program directed by an interdisciplinary team that meets at

14  least every other month.

15         (r)  Violating any provision of this chapter or chapter

16  456, or any rules adopted pursuant thereto.

17         (2)  The board may enter an order denying licensure or

18  imposing any of the penalties in s. 456.072(2) against any

19  applicant for licensure or licensee who is found guilty of

20  violating any provision of subsection (1) of this section or

21  who is found guilty of violating any provision of s.

22  456.072(1).

23         Section 24.  For the purpose of incorporating the

24  amendment to section 456.072, Florida Statutes, in references

25  thereto, subsections (1) and (2) of section 468.217, Florida

26  Statutes, are reenacted to read:

27         468.217  Denial of or refusal to renew license;

28  suspension and revocation of license and other disciplinary

29  measures.--

30  

31  

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (1)  The following acts constitute grounds for denial

 2  of a license or disciplinary action, as specified in s.

 3  456.072(2):

 4         (a)  Attempting to obtain, obtaining, or renewing a

 5  license to practice occupational therapy by bribery, by

 6  fraudulent misrepresentation, or through an error of the

 7  department or the board.

 8         (b)  Having a license to practice occupational therapy

 9  revoked, suspended, or otherwise acted against, including the

10  denial of licensure, by the licensing authority of another

11  state, territory, or country.

12         (c)  Being convicted or found guilty, regardless of

13  adjudication, of a crime in any jurisdiction which directly

14  relates to the practice of occupational therapy or to the

15  ability to practice occupational therapy.  A plea of nolo

16  contendere shall be considered a conviction for the purposes

17  of this part.

18         (d)  False, deceptive, or misleading advertising.

19         (e)  Advertising, practicing, or attempting to practice

20  under a name other than one's own name.

21         (f)  Failing to report to the department any person who

22  the licensee knows is in violation of this part or of the

23  rules of the department or of the board.

24         (g)  Aiding, assisting, procuring, or advising any

25  unlicensed person to practice occupational therapy contrary to

26  this part or to a rule of the department or the board.

27         (h)  Failing to perform any statutory or legal

28  obligation placed upon a licensed occupational therapist or

29  occupational therapy assistant.

30         (i)  Making or filing a report which the licensee knows

31  to be false, intentionally or negligently failing to file a

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  report or record required by state or federal law, willfully

 2  impeding or obstructing such filing or inducing another person

 3  to do so.  Such reports or records include only those which

 4  are signed in the capacity as a licensed occupational

 5  therapist or occupational therapy assistant.

 6         (j)  Paying or receiving any commission, bonus,

 7  kickback, or rebate to or from, or engaging in any split-fee

 8  arrangement in any form whatsoever with, a physician,

 9  organization, agency, or person, either directly or

10  indirectly, for patients referred to providers of health care

11  goods and services, including, but not limited to, hospitals,

12  nursing homes, clinical laboratories, ambulatory surgical

13  centers, or pharmacies.  The provisions of this paragraph

14  shall not be construed to prevent an occupational therapist or

15  occupational therapy assistant from receiving a fee for

16  professional consultation services.

17         (k)  Exercising influence within a patient-therapist

18  relationship for purposes of engaging a patient in sexual

19  activity. A patient is presumed to be incapable of giving

20  free, full, and informed consent to sexual activity with the

21  patient's occupational therapist or occupational therapy

22  assistant.

23         (l)  Making deceptive, untrue, or fraudulent

24  representations in the practice of occupational therapy or

25  employing a trick or scheme in the practice of occupational

26  therapy if such scheme or trick fails to conform to the

27  generally prevailing standards of treatment in the

28  occupational therapy community.

29         (m)  Soliciting patients, either personally or through

30  an agent, through the use of fraud, intimidation, undue

31  influence, or a form of overreaching or vexatious conduct.  A

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  "solicitation" is any communication which directly or

 2  implicitly requests an immediate oral response from the

 3  recipient.

 4         (n)  Failing to keep written records justifying the

 5  course of treatment of the patient, including, but not limited

 6  to, patient histories, examination results, and test results.

 7         (o)  Exercising influence on the patient or client in

 8  such a manner as to exploit the patient or client for

 9  financial gain of the licensee or of a third party which

10  includes, but is not limited to, the promoting or selling of

11  services, goods, appliances, or drugs.

12         (p)  Performing professional services which have not

13  been duly authorized by the patient or client, or his or her

14  legal representative, except as provided in s. 768.13.

15         (q)  Gross or repeated malpractice or the failure to

16  practice occupational therapy with that level of care, skill,

17  and treatment which is recognized by a reasonably prudent

18  similar occupational therapist or occupational therapy

19  assistant as being acceptable under similar conditions and

20  circumstances.

21         (r)  Performing any procedure which, by the prevailing

22  standards of occupational therapy practice in the community,

23  would constitute experimentation on a human subject without

24  first obtaining full, informed, and written consent.

25         (s)  Practicing or offering to practice beyond the

26  scope permitted by law or accepting and performing

27  professional responsibilities which the licensee knows or has

28  reason to know that he or she is not competent to perform.

29         (t)  Being unable to practice occupational therapy with

30  reasonable skill and safety to patients by reason of illness

31  or use of alcohol, drugs, narcotics, chemicals, or any other

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  type of material or as a result of any mental or physical

 2  condition.  In enforcing this paragraph, the department shall

 3  have, upon probable cause, authority to compel an occupational

 4  therapist or occupational therapy assistant to submit to a

 5  mental or physical examination by physicians designated by the

 6  department.  The failure of an occupational therapist or

 7  occupational therapy assistant to submit to such examination

 8  when so directed constitutes an admission of the allegations

 9  against him or her, upon which a default and final order may

10  be entered without the taking of testimony or presentation of

11  evidence, unless the failure was due to circumstances beyond

12  his or her control.  An occupational therapist or occupational

13  therapy assistant affected under this paragraph shall at

14  reasonable intervals be afforded an opportunity to demonstrate

15  that he or she can resume the competent practice of

16  occupational therapy with reasonable skill and safety to

17  patients. In any proceeding under this paragraph, neither the

18  record of proceedings nor the orders entered by the board

19  shall be used against an occupational therapist or

20  occupational therapy assistant in any other proceeding.

21         (u)  Delegating professional responsibilities to a

22  person when the licensee who is delegating such

23  responsibilities knows or has reason to know that such person

24  is not qualified by training, experience, or licensure to

25  perform them.

26         (v)  Violating a lawful order of the board or

27  department previously entered in a disciplinary hearing or

28  failing to comply with a lawfully issued subpoena of the

29  department.

30         (w)  Conspiring with another licensee or with any other

31  person to commit an act, or committing an act, which would

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  tend to coerce, intimidate, or preclude another licensee from

 2  lawfully advertising his or her services.

 3         (x)  Violating any provision of this chapter or chapter

 4  456, or any rules adopted pursuant thereto.

 5         (2)  The board may enter an order denying licensure or

 6  imposing any of the penalties in s. 456.072(2) against any

 7  applicant for licensure or licensee who is found guilty of

 8  violating any provision of subsection (1) of this section or

 9  who is found guilty of violating any provision of s.

10  456.072(1).

11         Section 25.  For the purpose of incorporating the

12  amendment to section 456.072, Florida Statutes, in references

13  thereto, subsections (1) and (2) of section 468.365, Florida

14  Statutes, are reenacted to read:

15         468.365  Disciplinary grounds and actions.--

16         (1)  The following acts constitute grounds for denial

17  of a license or disciplinary action, as specified in s.

18  456.072(2):

19         (a)  Procuring, attempting to procure, or renewing a

20  license as provided by this part by bribery, by fraudulent

21  misrepresentation, or through an error of the department or

22  the board.

23         (b)  Having licensure, certification, registration, or

24  other authority, by whatever name known, to deliver

25  respiratory care services revoked, suspended, or otherwise

26  acted against, including the denial of licensure,

27  certification, registration, or other authority to deliver

28  respiratory care services by the licensing authority of

29  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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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  crime in any jurisdiction which directly relates to

 2  respiratory care services or to the ability to deliver such

 3  services.

 4         (d)  Willfully making or filing a false report or

 5  record, willfully failing to file a report or record required

 6  by state or federal law, or willfully impeding or obstructing

 7  such filing or inducing another person to do so.  Such reports

 8  or records include only those reports or records which require

 9  the signature of a respiratory care practitioner or

10  respiratory therapist licensed pursuant to this part.

11         (e)  Circulating false, misleading, or deceptive

12  advertising.

13         (f)  Unprofessional conduct, which includes, but is not

14  limited to, any departure from, or failure to conform to,

15  acceptable standards related to the delivery of respiratory

16  care services, as set forth by the board in rules adopted

17  pursuant to this part.

18         (g)  Engaging or attempting to engage in the

19  possession, sale, or distribution of controlled substances, as

20  set forth by law, for any purpose other than a legitimate

21  purpose.

22         (h)  Willfully failing to report any violation of this

23  part.

24         (i)  Violating a lawful order of the board or

25  department previously entered in a disciplinary hearing.

26         (j)  Engaging in the delivery of respiratory care

27  services with a revoked, suspended, or inactive license.

28         (k)  Permitting, aiding, assisting, procuring, or

29  advising any person who is not licensed pursuant to this part,

30  contrary to this part or to any rule of the department or the

31  board.

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (l)  Failing to perform any statutory or legal

 2  obligation placed upon a respiratory care practitioner or

 3  respiratory therapist licensed pursuant to this part.

 4         (m)  Accepting and performing professional

 5  responsibilities which the licensee knows, or has reason to

 6  know, she or he is not competent to perform.

 7         (n)  Delegating professional responsibilities to a

 8  person when the licensee delegating such responsibilities

 9  knows, or has reason to know, that such person is not

10  qualified by training, experience, or licensure to perform

11  them.

12         (o)  Gross or repeated malpractice or the failure to

13  deliver respiratory care services with that level of care,

14  skill, and treatment which is recognized by a reasonably

15  prudent respiratory care practitioner or respiratory therapist

16  with similar professional training as being acceptable under

17  similar conditions and circumstances.

18         (p)  Paying or receiving any commission, bonus,

19  kickback, or rebate to or from, or engaging in any split-fee

20  arrangement in any form whatsoever with, a person,

21  organization, or agency, either directly or indirectly, for

22  goods or services rendered to patients referred by or to

23  providers of health care goods and services, including, but

24  not limited to, hospitals, nursing homes, clinical

25  laboratories, ambulatory surgical centers, or pharmacies.  The

26  provisions of this paragraph shall not be construed to prevent

27  the licensee from receiving a fee for professional

28  consultation services.

29         (q)  Exercising influence within a respiratory care

30  relationship for the purpose of engaging a patient in sexual

31  activity.  A patient is presumed to be incapable of giving

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  free, full, and informed consent to sexual activity with the

 2  patient's respiratory care practitioner or respiratory

 3  therapist.

 4         (r)  Making deceptive, untrue, or fraudulent

 5  representations in the delivery of respiratory care services

 6  or employing a trick or scheme in the delivery of respiratory

 7  care services if such a scheme or trick fails to conform to

 8  the generally prevailing standards of other licensees within

 9  the community.

10         (s)  Soliciting patients, either personally or through

11  an agent, through the use of fraud, deception, or otherwise

12  misleading statements or through the exercise of intimidation

13  or undue influence.

14         (t)  Failing to keep written respiratory care records

15  justifying the reason for the action taken by the licensee.

16         (u)  Exercising influence on the patient in such a

17  manner as to exploit the patient for the financial gain of the

18  licensee or a third party, which includes, but is not limited

19  to, the promoting or selling of services, goods, appliances,

20  or drugs.

21         (v)  Performing professional services which have not

22  been duly ordered by a physician licensed pursuant to chapter

23  458 or chapter 459 and which are not in accordance with

24  protocols established by the hospital, other health care

25  provider, or the board, except as provided in ss. 743.064,

26  766.103, and 768.13.

27         (w)  Being unable to deliver respiratory care services

28  with reasonable skill and safety to patients by reason of

29  illness or use of alcohol, drugs, narcotics, chemicals, or any

30  other type of material as a result of any mental or physical

31  condition.  In enforcing this paragraph, the department shall,

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  upon probable cause, have authority to compel a respiratory

 2  care practitioner or respiratory therapist to submit to a

 3  mental or physical examination by physicians designated by the

 4  department.  The cost of examination shall be borne by the

 5  licensee being examined.  The failure of a respiratory care

 6  practitioner or respiratory therapist to submit to such an

 7  examination when so directed constitutes an admission of the

 8  allegations against her or him, upon which a default and a

 9  final order may be entered without the taking of testimony or

10  presentation of evidence, unless the failure was due to

11  circumstances beyond her or his control.  A respiratory care

12  practitioner or respiratory therapist affected under this

13  paragraph shall at reasonable intervals be afforded an

14  opportunity to demonstrate that she or he can resume the

15  competent delivery of respiratory care services with

16  reasonable skill and safety to her or his patients.  In any

17  proceeding under this paragraph, neither the record of

18  proceedings nor the orders entered by the board shall be used

19  against a respiratory care practitioner or respiratory

20  therapist in any other proceeding.

21         (x)  Violating any provision of this chapter or chapter

22  456, or any rules adopted pursuant thereto.

23         (2)  The board may enter an order denying licensure or

24  imposing any of the penalties in s. 456.072(2) against any

25  applicant for licensure or licensee who is found guilty of

26  violating any provision of subsection (1) of this section or

27  who is found guilty of violating any provision of s.

28  456.072(1).

29         Section 26.  For the purpose of incorporating the

30  amendment to section 456.072, Florida Statutes, in references

31  

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  thereto, subsections (1) and (2) of section 468.518, Florida

 2  Statutes, are reenacted to read:

 3         468.518  Grounds for disciplinary action.--

 4         (1)  The following acts constitute grounds for denial

 5  of a license or disciplinary action, as specified in s.

 6  456.072(2):

 7         (a)  Violating any provision of this part, any board or

 8  agency rule adopted pursuant thereto, or any lawful order of

 9  the board or agency previously entered in a disciplinary

10  hearing held pursuant to this part, or failing to comply with

11  a lawfully issued subpoena of the agency.  The provisions of

12  this paragraph also apply to any order or subpoena previously

13  issued by the Department of Health during its period of

14  regulatory control over this part.

15         (b)  Being unable to engage in dietetics and nutrition

16  practice or nutrition counseling with reasonable skill and

17  safety to patients by reason of illness or use of alcohol,

18  drugs, narcotics, chemicals, or any other type of material or

19  as a result of any mental or physical condition.

20         1.  A licensee whose license is suspended or revoked

21  pursuant to this paragraph shall, at reasonable intervals, be

22  given an opportunity to demonstrate that he or she can resume

23  the competent practice of dietetics and nutrition or nutrition

24  counseling with reasonable skill and safety to patients.

25         2.  Neither the record of the proceeding nor the orders

26  entered by the board in any proceeding under this paragraph

27  may be used against a licensee in any other proceeding.

28         (c)  Attempting to procure or procuring a license to

29  practice dietetics and nutrition or nutrition counseling by

30  fraud or material misrepresentation of material fact.

31  

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 1         (d)  Having a license to practice dietetics and

 2  nutrition or nutrition counseling revoked, suspended, or

 3  otherwise acted against, including the denial of licensure by

 4  the licensing authority of another state, district, territory,

 5  or country.

 6         (e)  Being convicted or found guilty of, or entering a

 7  plea of nolo contendere to, regardless of adjudication, a

 8  crime in any jurisdiction which directly relates to the

 9  practice of dietetics and nutrition or nutrition counseling or

10  the ability to practice dietetics and nutrition or nutrition

11  counseling.

12         (f)  Making or filing a report or record that the

13  licensee knows to be false, willfully failing to file a report

14  or record required by state or federal law, willfully impeding

15  or obstructing such filing, or inducing another person to

16  impede or obstruct such filing. Such reports or records

17  include only those that are signed in the capacity of a

18  licensed dietitian/nutritionist or licensed nutrition

19  counselor.

20         (g)  Advertising goods or services in a manner that is

21  fraudulent, false, deceptive, or misleading in form or

22  content.

23         (h)  Committing an act of fraud or deceit, or of

24  negligence, incompetency, or misconduct in the practice of

25  dietetics and nutrition or nutrition counseling.

26         (i)  Practicing with a revoked, suspended, inactive, or

27  delinquent license.

28         (j)  Treating or undertaking to treat human ailments by

29  means other than by dietetics and nutrition practice or

30  nutrition counseling.

31  

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (k)  Failing to maintain acceptable standards of

 2  practice as set forth by the board and the council in rules

 3  adopted pursuant to this part.

 4         (l)  Engaging directly or indirectly in the dividing,

 5  transferring, assigning, rebating, or refunding of fees

 6  received for professional services, or profiting by means of a

 7  credit or other valuable consideration, such as an unearned

 8  commission, discount, or gratuity, with any person referring a

 9  patient or with any relative or business associate of the

10  referring person. Nothing in this part prohibits the members

11  of any regularly and properly organized business entity that

12  is composed of licensees under this part and recognized under

13  the laws of this state from making any division of their total

14  fees among themselves as they determine necessary.

15         (m)  Advertising, by or on behalf of a licensee under

16  this part, any method of assessment or treatment which is

17  experimental or without generally accepted scientific

18  validation.

19         (n)  Violating any provision of this chapter or chapter

20  456, or any rules adopted pursuant thereto.

21         (2)  The board may enter an order denying licensure or

22  imposing any of the penalties in s. 456.072(2) against any

23  applicant for licensure or licensee who is found guilty of

24  violating any provision of subsection (1) of this section or

25  who is found guilty of violating any provision of s.

26  456.072(1).

27         Section 27.  For the purpose of incorporating the

28  amendment to section 456.072, Florida Statutes, in references

29  thereto, section 468.719, Florida Statutes, is reenacted to

30  read:

31         468.719  Disciplinary actions.--

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (1)  The following acts constitute grounds for denial

 2  of a license or disciplinary action, as specified in s.

 3  456.072(2):

 4         (a)  Failing to include the athletic trainer's name and

 5  license number in any advertising, including, but not limited

 6  to, business cards and letterhead, related to the practice of

 7  athletic training. Advertising shall not include clothing or

 8  other novelty items.

 9         (b)  Committing incompetency or misconduct in the

10  practice of athletic training.

11         (c)  Committing fraud or deceit in the practice of

12  athletic training.

13         (d)  Committing negligence, gross negligence, or

14  repeated negligence in the practice of athletic training.

15         (e)  While practicing athletic training, being unable

16  to practice athletic training with reasonable skill and safety

17  to athletes by reason of illness or use of alcohol or drugs or

18  as a result of any mental or physical condition.

19         (f)  Violating any provision of this chapter or chapter

20  456, or any rules adopted pursuant thereto.

21         (2)  The board may enter an order denying licensure or

22  imposing any of the penalties in s. 456.072(2) against any

23  applicant for licensure or licensee who is found guilty of

24  violating any provision of subsection (1) of this section or

25  who is found guilty of violating any provision of s.

26  456.072(1).

27         Section 28.  For the purpose of incorporating the

28  amendment to section 456.072, Florida Statutes, in references

29  thereto, section 468.811, Florida Statutes, is reenacted to

30  read:

31         468.811  Disciplinary proceedings.--

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (1)  The following acts constitute grounds for denial

 2  of a license or disciplinary action, as specified in s.

 3  456.072(2):

 4         (a)  Attempting to procure a license by fraudulent

 5  misrepresentation.

 6         (b)  Having a license to practice orthotics,

 7  prosthetics, or pedorthics revoked, suspended, or otherwise

 8  acted against, including the denial of licensure in another

 9  jurisdiction.

10         (c)  Being convicted or found guilty of or pleading

11  nolo contendere to, regardless of adjudication, in any

12  jurisdiction, a crime that directly relates to the practice of

13  orthotics, prosthetics, or pedorthics, including violations of

14  federal laws or regulations regarding orthotics, prosthetics,

15  or pedorthics.

16         (d)  Filing a report or record that the licensee knows

17  is false, intentionally or negligently failing to file a

18  report or record required by state or federal law, willfully

19  impeding or obstructing such filing, or inducing another

20  person to impede or obstruct such filing. Such reports or

21  records include only reports or records that are signed in a

22  person's capacity as a licensee under this act.

23         (e)  Advertising goods or services in a fraudulent,

24  false, deceptive, or misleading manner.

25         (f)  Violation of an order of the board, agency, or

26  department previously entered in a disciplinary hearing or

27  failure to comply with a subpoena issued by the board, agency,

28  or department.

29         (g)  Practicing with a revoked, suspended, or inactive

30  license.

31  

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (h)  Gross or repeated malpractice or the failure to

 2  deliver orthotic, prosthetic, or pedorthic services with that

 3  level of care and skill which is recognized by a reasonably

 4  prudent licensed practitioner with similar professional

 5  training as being acceptable under similar conditions and

 6  circumstances.

 7         (i)  Failing to provide written notice of any

 8  applicable warranty for an orthosis, prosthesis, or pedorthic

 9  device that is provided to a patient.

10         (j)  Violating any provision of this chapter or chapter

11  456, or any rules adopted pursuant thereto.

12         (2)  The board may enter an order denying licensure or

13  imposing any of the penalties in s. 456.072(2) against any

14  applicant for licensure or licensee who is found guilty of

15  violating any provision of subsection (1) of this section or

16  who is found guilty of violating any provision of s.

17  456.072(1).

18         Section 29.  For the purpose of incorporating the

19  amendment to section 456.072, Florida Statutes, in references

20  thereto, subsections (1) and (2) of section 478.52, Florida

21  Statutes, are reenacted to read:

22         478.52  Disciplinary proceedings.--

23         (1)  The following acts constitute grounds for denial

24  of a license or disciplinary action, as specified in s.

25  456.072(2):

26         (a)  Obtaining or attempting to obtain a license by

27  bribery, fraud, or knowing misrepresentation.

28         (b)  Having a license or other authority to deliver

29  electrolysis services revoked, suspended, or otherwise acted

30  against, including denial of licensure, in another

31  jurisdiction.

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (c)  Being convicted or found guilty of, or entering a

 2  plea of nolo contendere to, regardless of adjudication, a

 3  crime, in any jurisdiction, which directly relates to the

 4  practice of electrology.

 5         (d)  Willfully making or filing a false report or

 6  record, willfully failing to file a report or record required

 7  for electrologists, or willfully impeding or obstructing the

 8  filing of a report or record required by this act or inducing

 9  another person to do so.

10         (e)  Circulating false, misleading, or deceptive

11  advertising.

12         (f)  Unprofessional conduct, including any departure

13  from, or failure to conform to, acceptable standards related

14  to the delivery of electrolysis services.

15         (g)  Engaging or attempting to engage in the illegal

16  possession, sale, or distribution of any illegal or controlled

17  substance.

18         (h)  Willfully failing to report any known violation of

19  this chapter.

20         (i)  Willfully or repeatedly violating a rule adopted

21  under this chapter, or an order of the board or department

22  previously entered in a disciplinary hearing.

23         (j)  Engaging in the delivery of electrolysis services

24  without an active license.

25         (k)  Employing an unlicensed person to practice

26  electrology.

27         (l)  Failing to perform any statutory or legal

28  obligation placed upon an electrologist.

29         (m)  Accepting and performing professional

30  responsibilities which the licensee knows, or has reason to

31  know, she or he is not competent to perform.

                                  97

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 1         (n)  Delegating professional responsibilities to a

 2  person the licensee knows, or has reason to know, is

 3  unqualified by training, experience, or licensure to perform.

 4         (o)  Gross or repeated malpractice or the inability to

 5  practice electrology with reasonable skill and safety.

 6         (p)  Judicially determined mental incompetency.

 7         (q)  Practicing or attempting to practice electrology

 8  under a name other than her or his own.

 9         (r)  Being unable to practice electrology with

10  reasonable skill and safety because of a mental or physical

11  condition or illness, or the use of alcohol, controlled

12  substances, or any other substance which impairs one's ability

13  to practice.

14         1.  The department may, upon probable cause, compel a

15  licensee to submit to a mental or physical examination by

16  physicians designated by the department. The cost of an

17  examination shall be borne by the licensee, and her or his

18  failure to submit to such an examination constitutes an

19  admission of the allegations against her or him, consequent

20  upon which a default and a final order may be entered without

21  the taking of testimony or presentation of evidence, unless

22  the failure was due to circumstances beyond her or his

23  control.

24         2.  A licensee who is disciplined under this paragraph

25  shall, at reasonable intervals, be afforded an opportunity to

26  demonstrate that she or he can resume the practice of

27  electrology with reasonable skill and safety.

28         3.  In any proceeding under this paragraph, the record

29  of proceedings or the orders entered by the board may not be

30  used against a licensee in any other proceeding.

31  

                                  98

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (s)  Disclosing the identity of or information about a

 2  patient without written permission, except for information

 3  which does not identify a patient and which is used for

 4  training purposes in an approved electrolysis training

 5  program.

 6         (t)  Practicing or attempting to practice any permanent

 7  hair removal except as described in s. 478.42(5).

 8         (u)  Operating any electrolysis facility unless it has

 9  been duly licensed as provided in this chapter.

10         (v)  Violating any provision of this chapter or chapter

11  456, or any rules adopted pursuant thereto.

12         (2)  The board may enter an order denying licensure or

13  imposing any of the penalties in s. 456.072(2) against any

14  applicant for licensure or licensee who is found guilty of

15  violating any provision of subsection (1) of this section or

16  who is found guilty of violating any provision of s.

17  456.072(1).

18         Section 30.  For the purpose of incorporating the

19  amendment to section 456.072, Florida Statutes, in references

20  thereto, subsections (1) and (2) of section 480.046, Florida

21  Statutes, are reenacted to read:

22         480.046  Grounds for disciplinary action by the

23  board.--

24         (1)  The following acts constitute grounds for denial

25  of a license or disciplinary action, as specified in s.

26  456.072(2):

27         (a)  Attempting to procure a license to practice

28  massage by bribery or fraudulent misrepresentation.

29         (b)  Having a license to practice massage revoked,

30  suspended, or otherwise acted against, including the denial of

31  

                                  99

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  licensure, by the licensing authority of another state,

 2  territory, or country.

 3         (c)  Being convicted or found guilty, regardless of

 4  adjudication, of a crime in any jurisdiction which directly

 5  relates to the practice of massage or to the ability to

 6  practice massage. Any plea of nolo contendere shall be

 7  considered a conviction for purposes of this chapter.

 8         (d)  False, deceptive, or misleading advertising.

 9         (e)  Aiding, assisting, procuring, or advising any

10  unlicensed person to practice massage contrary to the

11  provisions of this chapter or to a rule of the department or

12  the board.

13         (f)  Making deceptive, untrue, or fraudulent

14  representations in the practice of massage.

15         (g)  Being unable to practice massage with reasonable

16  skill and safety by reason of illness or use of alcohol,

17  drugs, narcotics, chemicals, or any other type of material or

18  as a result of any mental or physical condition.  In enforcing

19  this paragraph, the department shall have, upon probable

20  cause, authority to compel a massage therapist to submit to a

21  mental or physical examination by physicians designated by the

22  department.  Failure of a massage therapist to submit to such

23  examination when so directed, unless the failure was due to

24  circumstances beyond her or his control, shall constitute an

25  admission of the allegations against her or him, consequent

26  upon which a default and final order may be entered without

27  the taking of testimony or presentation of evidence.  A

28  massage therapist affected under this paragraph shall at

29  reasonable intervals be afforded an opportunity to demonstrate

30  that she or he can resume the competent practice of massage

31  with reasonable skill and safety to clients.

                                 100

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 1         (h)  Gross or repeated malpractice or the failure to

 2  practice massage with that level of care, skill, and treatment

 3  which is recognized by a reasonably prudent massage therapist

 4  as being acceptable under similar conditions and

 5  circumstances.

 6         (i)  Practicing or offering to practice beyond the

 7  scope permitted by law or accepting and performing

 8  professional responsibilities which the licensee knows or has

 9  reason to know that she or he is not competent to perform.

10         (j)  Delegating professional responsibilities to a

11  person when the licensee delegating such responsibilities

12  knows or has reason to know that such person is not qualified

13  by training, experience, or licensure to perform.

14         (k)  Violating a lawful order of the board or

15  department previously entered in a disciplinary hearing, or

16  failing to comply with a lawfully issued subpoena of the

17  department.

18         (l)  Refusing to permit the department to inspect the

19  business premises of the licensee during regular business

20  hours.

21         (m)  Failing to keep the equipment and premises of the

22  massage establishment in a clean and sanitary condition.

23         (n)  Practicing massage at a site, location, or place

24  which is not duly licensed as a massage establishment, except

25  that a massage therapist, as provided by rules adopted by the

26  board, may provide massage services, excluding colonic

27  irrigation, at the residence of a client, at the office of the

28  client, at a sports event, at a convention, or at a trade

29  show.

30         (o)  Violating any provision of this chapter or chapter

31  456, or any rules adopted pursuant thereto.

                                 101

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (2)  The board may enter an order denying licensure or

 2  imposing any of the penalties in s. 456.072(2) against any

 3  applicant for licensure or licensee who is found guilty of

 4  violating any provision of subsection (1) of this section or

 5  who is found guilty of violating any provision of s.

 6  456.072(1).

 7         Section 31.  For the purpose of incorporating the

 8  amendment to section 456.072, Florida Statutes, in references

 9  thereto, subsections (1) and (2) of section 483.825, Florida

10  Statutes, are reenacted to read:

11         483.825  Grounds for disciplinary action.--

12         (1)  The following acts constitute grounds for denial

13  of a license or disciplinary action, as specified in s.

14  456.072(2):

15         (a)  Attempting to obtain, obtaining, or renewing a

16  license or registration under this part by bribery, by

17  fraudulent misrepresentation, or through an error of the

18  department or the board.

19         (b)  Engaging in or attempting to engage in, or

20  representing herself or himself as entitled to perform, any

21  clinical laboratory procedure or category of procedures not

22  authorized pursuant to her or his license.

23         (c)  Demonstrating incompetence or making consistent

24  errors in the performance of clinical laboratory examinations

25  or procedures or erroneous reporting.

26         (d)  Performing a test and rendering a report thereon

27  to a person not authorized by law to receive such services.

28         (e)  Has been convicted or found guilty of, or entered

29  a plea of nolo contendere to, regardless of adjudication, a

30  crime in any jurisdiction which directly relates to the

31  activities of clinical laboratory personnel or involves moral

                                 102

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  turpitude or fraudulent or dishonest dealing. The record of a

 2  conviction certified or authenticated in such form as to be

 3  admissible in evidence under the laws of the state shall be

 4  admissible as prima facie evidence of such guilt.

 5         (f)  Having been adjudged mentally or physically

 6  incompetent.

 7         (g)  Aiding and abetting in the violation of any

 8  provision of this part or the rules adopted hereunder.

 9         (h)  Reporting a test result when no laboratory test

10  was performed on a clinical specimen.

11         (i)  Knowingly advertising false services or

12  credentials.

13         (j)  Having a license revoked, suspended, or otherwise

14  acted against, including the denial of licensure, by the

15  licensing authority of another jurisdiction. The licensing

16  authority's acceptance of a relinquishment of a license,

17  stipulation, consent order, or other settlement, offered in

18  response to or in anticipation of the filing of administrative

19  charges against the licensee, shall be construed as action

20  against the licensee.

21         (k)  Failing to report to the board, in writing, within

22  30 days that an action under paragraph (e), paragraph (f), or

23  paragraph (j) has been taken against the licensee or one's

24  license to practice as clinical laboratory personnel in

25  another state, territory, country, or other jurisdiction.

26         (l)  Being unable to perform or report clinical

27  laboratory examinations with reasonable skill and safety to

28  patients by reason of illness or use of alcohol, drugs,

29  narcotics, chemicals, or any other type of material or as a

30  result of any mental or physical condition.  In enforcing this

31  paragraph, the department shall have, upon a finding of the

                                 103

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  secretary or his or her designee that probable cause exists to

 2  believe that the licensee is unable to practice because of the

 3  reasons stated in this paragraph, the authority to issue an

 4  order to compel a licensee to submit to a mental or physical

 5  examination by physicians designated by the department. If the

 6  licensee refuses to comply with such order, the department's

 7  order directing such examination may be enforced by filing a

 8  petition for enforcement in the circuit court where the

 9  licensee resides or does business. The department shall be

10  entitled to the summary procedure provided in s. 51.011.  A

11  licensee affected under this paragraph shall at reasonable

12  intervals be afforded an opportunity to demonstrate that he or

13  she can resume competent practice with reasonable skill and

14  safety to patients.

15         (m)  Delegating professional responsibilities to a

16  person when the licensee delegating such responsibilities

17  knows, or has reason to know, that such person is not

18  qualified by training, experience, or licensure to perform

19  them.

20         (n)  Violating a previous order of the board entered in

21  a disciplinary proceeding.

22         (o)  Failing to report to the department a person or

23  other licensee who the licensee knows is in violation of this

24  chapter or the rules of the department or board adopted

25  hereunder.

26         (p)  Making or filing a report which the licensee knows

27  to be false, intentionally or negligently failing to file a

28  report or record required by state or federal law, willfully

29  impeding or obstructing such filing or inducing another person

30  to do so, including, but not limited to, impeding an agent of

31  the state from obtaining a report or record for investigative

                                 104

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  purposes. Such reports or records shall include only those

 2  generated in the capacity as a licensed clinical laboratory

 3  personnel.

 4         (q)  Paying or receiving any commission, bonus,

 5  kickback, or rebate, or engaging in any split-fee arrangement

 6  in any form whatsoever with a physician, organization, agency,

 7  or person, either directly or indirectly for patients referred

 8  to providers of health care goods and services including, but

 9  not limited to, hospitals, nursing homes, clinical

10  laboratories, ambulatory surgical centers, or pharmacies. The

11  provisions of this paragraph shall not be construed to prevent

12  a clinical laboratory professional from receiving a fee for

13  professional consultation services.

14         (r)  Exercising influence on a patient or client in

15  such a manner as to exploit the patient or client for the

16  financial gain of the licensee or other third party, which

17  shall include, but not be limited to, the promoting, selling,

18  or withholding of services, goods, appliances, referrals, or

19  drugs.

20         (s)  Practicing or offering to practice beyond the

21  scope permitted by law or rule, or accepting or performing

22  professional services or responsibilities which the licensee

23  knows or has reason to know that he or she is not competent to

24  perform.

25         (t)  Misrepresenting or concealing a material fact at

26  any time during any phase of the licensing, investigative, or

27  disciplinary process, procedure, or proceeding.

28         (u)  Improperly interfering with an investigation or

29  any disciplinary proceeding.

30         (v)  Engaging in or attempting to engage in sexual

31  misconduct, causing undue embarrassment or using disparaging

                                 105

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  language or language of a sexual nature towards a patient,

 2  exploiting superior/subordinate, professional/patient,

 3  instructor/student relationships for personal gain, sexual

 4  gratification, or advantage.

 5         (w)  Violating any provision of this chapter or chapter

 6  456, or any rules adopted pursuant thereto.

 7         (2)  The board may enter an order denying licensure or

 8  imposing any of the penalties in s. 456.072(2) against any

 9  applicant for licensure or licensee who is found guilty of

10  violating any provision of subsection (1) of this section or

11  who is found guilty of violating any provision of s.

12  456.072(1).

13         Section 32.  For the purpose of incorporating the

14  amendment to section 456.072, Florida Statutes, in references

15  thereto, paragraphs (g) and (h) of subsection (6) of section

16  483.901, Florida Statutes, are reenacted to read:

17         483.901  Medical physicists; definitions; licensure.--

18         (6)  LICENSE REQUIRED.--An individual may not engage in

19  the practice of medical physics, including the specialties of

20  diagnostic radiological physics, therapeutic radiological

21  physics, medical nuclear radiological physics, or medical

22  health physics, without a license issued by the department for

23  the appropriate specialty.

24         (g)  The following acts constitute grounds for denial

25  of a license or disciplinary action, as specified in s.

26  456.072(2):

27         1.  Obtaining or attempting to obtain a license by

28  bribery, fraud, knowing misrepresentation, or concealment of

29  material fact or through an error of the department.

30         2.  Having a license denied, revoked, suspended, or

31  otherwise acted against in another jurisdiction.

                                 106

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         3.  Being convicted or found guilty of, or entering a

 2  plea of nolo contendere to, regardless of adjudication, a

 3  crime in any jurisdiction which relates to the practice of, or

 4  the ability to practice, the profession of medical physics.

 5         4.  Willfully failing to file a report or record

 6  required for medical physics or willfully impeding or

 7  obstructing the filing of a report or record required by this

 8  section or inducing another person to do so.

 9         5.  Making misleading, deceptive, or fraudulent

10  representations in or related to the practice of medical

11  physics.

12         6.  Willfully failing to report any known violation of

13  this section or any rule adopted thereunder.

14         7.  Failing to perform any statutory or legal

15  obligation placed upon a licensee.

16         8.  Aiding, assisting, procuring, employing, or

17  advising any unlicensed person to practice medical physics

18  contrary to this section or any rule adopted thereunder.

19         9.  Delegating or contracting for the performance of

20  professional responsibilities by a person when the licensee

21  delegating or contracting such responsibilities knows, or has

22  reason to know, such person is not qualified by training,

23  experience, and authorization to perform them.

24         10.  Practicing or offering to practice beyond the

25  scope permitted by law or accepting and performing

26  professional responsibilities the licensee knows, or has

27  reason to know, the licensee is not competent to perform.

28         11.  Gross or repeated malpractice or the inability to

29  practice medical physics with reasonable skill and safety.

30         12.  Judicially determined mental incompetency.

31  

                                 107

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         13.  Being unable to practice medical physics with

 2  reasonable skill and safety because of a mental or physical

 3  condition or illness or the use of alcohol, controlled

 4  substances, or any other substance which impairs one's ability

 5  to practice.

 6         a.  The department may, upon probable cause, compel a

 7  licensee to submit to a mental or physical examination by

 8  physicians designated by the department.  The cost of an

 9  examination shall be borne by the licensee, and the licensee's

10  failure to submit to such an examination constitutes an

11  admission of the allegations against the licensee, consequent

12  upon which a default and a final order may be entered without

13  the taking of testimony or presentation of evidence, unless

14  the failure was due to circumstances beyond the licensee's

15  control.

16         b.  A licensee who is disciplined under this

17  subparagraph shall, at reasonable intervals, be afforded an

18  opportunity to demonstrate that the licensee can resume the

19  practice of medical physics with reasonable skill and safety.

20         c.  With respect to any proceeding under this

21  subparagraph, the record of proceedings or the orders entered

22  by the department may not be used against a licensee in any

23  other proceeding.

24         14.  Violating any provision of this chapter or chapter

25  456, or any rules adopted pursuant thereto.

26         (h)  The board may enter an order denying licensure or

27  imposing any of the penalties in s. 456.072(2) against any

28  applicant for licensure or licensee who is found guilty of

29  violating any provision of subsection (1) of this section or

30  who is found guilty of violating any provision of s.

31  456.072(1).

                                 108

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         Section 33.  For the purpose of incorporating the

 2  amendment to section 456.072, Florida Statutes, in references

 3  thereto, subsections (1) and (2) of section 484.014, Florida

 4  Statutes, are reenacted to read:

 5         484.014  Disciplinary actions.--

 6         (1)  The following acts constitute grounds for denial

 7  of a license or disciplinary action, as specified in s.

 8  456.072(2):

 9         (a)  Procuring or attempting to procure a license by

10  misrepresentation, bribery, or fraud or through an error of

11  the department or the board.

12         (b)  Procuring or attempting to procure a license for

13  any other person by making or causing to be made any false

14  representation.

15         (c)  Making or filing a report or record which the

16  licensee knows to be false, intentionally or negligently

17  failing to file a report or record required by federal or

18  state law, willfully impeding or obstructing such filing, or

19  inducing another person to do so. Such reports or records

20  shall include only those which the person is required to make

21  or file as an optician.

22         (d)  Failing to make fee or price information readily

23  available by providing such information upon request or upon

24  the presentation of a prescription.

25         (e)  Advertising goods or services in a manner which is

26  fraudulent, false, deceptive, or misleading in form or

27  content.

28         (f)  Fraud or deceit, or negligence, incompetency, or

29  misconduct, in the authorized practice of opticianry.

30         (g)  Practicing with a revoked, suspended, inactive, or

31  delinquent license.

                                 109

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (h)  Violation of a lawful order of the board or

 2  department previously entered in a disciplinary hearing or

 3  failing to comply with a lawfully issued subpoena of the

 4  department.

 5         (i)  Violation of any provision of s. 484.012.

 6         (j)  Conspiring with another licensee or with any

 7  person to commit an act, or committing an act, which would

 8  coerce, intimidate, or preclude another licensee from lawfully

 9  advertising her or his services.

10         (k)  Willfully submitting to any third-party payor a

11  claim for services which were not provided to a patient.

12         (l)  Failing to keep written prescription files.

13         (m)  Willfully failing to report any person who the

14  licensee knows is in violation of this part or of rules of the

15  department or the board.

16         (n)  Exercising influence on a client in such a manner

17  as to exploit the client for financial gain of the licensee or

18  of a third party.

19         (o)  Gross or repeated malpractice.

20         (p)  Permitting any person not licensed as an optician

21  in this state to fit or dispense any lenses, spectacles,

22  eyeglasses, or other optical devices which are part of the

23  practice of opticianry.

24         (q)  Being convicted or found guilty of, or entering a

25  plea of nolo contendere to, regardless of adjudication, in a

26  court of this state or other jurisdiction, a crime which

27  relates to the ability to practice opticianry or to the

28  practice of opticianry.

29         (r)  Having been disciplined by a regulatory agency in

30  another state for any offense that would constitute a

31  violation of Florida law or rules regulating opticianry.

                                 110

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1         (s)  Being unable to practice opticianry with

 2  reasonable skill and safety by reason of illness or use of

 3  drugs, narcotics, chemicals, or any other type of material or

 4  as a result of any mental or physical condition. An optician

 5  affected under this paragraph shall at reasonable intervals be

 6  afforded an opportunity to demonstrate that she or he can

 7  resume the competent practice of opticianry with reasonable

 8  skill and safety to her or his customers.

 9         (t)  Violating any provision of this chapter or chapter

10  456, or any rules adopted pursuant thereto.

11         (2)  The board may enter an order denying licensure or

12  imposing any of the penalties in s. 456.072(2) against any

13  applicant for licensure or licensee who is found guilty of

14  violating any provision of subsection (1) of this section or

15  who is found guilty of violating any provision of s.

16  456.072(1).

17         Section 34.  For the purpose of incorporating the

18  amendment to section 456.072, Florida Statutes, in references

19  thereto, subsection (1) and paragraph (a) of subsection (2) of

20  section 484.056, Florida Statutes, are reenacted to read:

21         484.056  Disciplinary proceedings.--

22         (1)  The following acts constitute grounds for denial

23  of a license or disciplinary action, as specified in s.

24  456.072(2):

25         (a)  Violation of any provision of s. 456.072(1), s.

26  484.0512, or s. 484.053.

27         (b)  Attempting to procure a license to dispense

28  hearing aids by bribery, by fraudulent misrepresentations, or

29  through an error of the department or the board.

30         (c)  Having a license to dispense hearing aids revoked,

31  suspended, or otherwise acted against, including the denial of

                                 111

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  licensure, by the licensing authority of another state,

 2  territory, or country.

 3         (d)  Being convicted or found guilty of, or entering a

 4  plea of nolo contendere to, regardless of adjudication, a

 5  crime in any jurisdiction which directly relates to the

 6  practice of dispensing hearing aids or the ability to practice

 7  dispensing hearing aids, including violations of any federal

 8  laws or regulations regarding hearing aids.

 9         (e)  Making or filing a report or record which the

10  licensee knows to be false, intentionally or negligently

11  failing to file a report or record required by state or

12  federal law, willfully impeding or obstructing such filing, or

13  inducing another person to impede or obstruct such filing.

14  Such reports or records shall include only those reports or

15  records which are signed in one's capacity as a licensed

16  hearing aid specialist.

17         (f)  Advertising goods or services in a manner which is

18  fraudulent, false, deceptive, or misleading in form or

19  content.

20         (g)  Proof that the licensee is guilty of fraud or

21  deceit or of negligence, incompetency, or misconduct in the

22  practice of dispensing hearing aids.

23         (h)  Violation of a lawful order of the board or

24  department previously entered in a disciplinary hearing or

25  failure to comply with a lawfully issued subpoena of the board

26  or department.

27         (i)  Practicing with a revoked, suspended, inactive, or

28  delinquent license.

29         (j)  Using, or causing or promoting the use of, any

30  advertising matter, promotional literature, testimonial,

31  guarantee, warranty, label, brand, insignia, or other

                                 112

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    Florida House of Representatives - 2002             CS/HB 15-E

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 1  representation, however disseminated or published, which is

 2  misleading, deceiving, or untruthful.

 3         (k)  Showing or demonstrating, or, in the event of

 4  sale, delivery of, a product unusable or impractical for the

 5  purpose represented or implied by such action.

 6         (l)  Misrepresentation of professional services

 7  available in the fitting, sale, adjustment, service, or repair

 8  of a hearing aid, or use of the terms "doctor," "clinic,"

 9  "clinical," "medical audiologist," "clinical audiologist,"

10  "research audiologist," or "audiologic" or any other term or

11  title which might connote the availability of professional

12  services when such use is not accurate.

13         (m)  Representation, advertisement, or implication that

14  a hearing aid or its repair is guaranteed without providing

15  full disclosure of the identity of the guarantor; the nature,

16  extent, and duration of the guarantee; and the existence of

17  conditions or limitations imposed upon the guarantee.

18         (n)  Representing, directly or by implication, that a

19  hearing aid utilizing bone conduction has certain specified

20  features, such as the absence of anything in the ear or

21  leading to the ear, or the like, without disclosing clearly

22  and conspicuously that the instrument operates on the bone

23  conduction principle and that in many cases of hearing loss

24  this type of instrument may not be suitable.

25         (o)  Making any predictions or prognostications as to

26  the future course of a hearing impairment, either in general

27  terms or with reference to an individual person.

28         (p)  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         (q)  Making any statement regarding the cure of the

 2  cause of a hearing impairment by the use of a hearing aid.

 3         (r)  Representing or implying that a hearing aid is or

 4  will be "custom-made," "made to order," or "prescription-made"

 5  or in any other sense specially fabricated for an individual

 6  person when such is not the case.

 7         (s)  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         (t)  Failure to submit to the board on an annual basis,

13  or such other basis as may be provided by rule, certification

14  of testing and calibration of audiometric testing equipment on

15  the form approved by the board.

16         (u)  Failing to provide all information as described in

17  s. 484.051(1).

18         (v)  Exercising influence on a client in such a manner

19  as to exploit the client for financial gain of the licensee or

20  of a third party.

21         (w)  Violating any provision of this chapter or chapter

22  456, or any rules adopted pursuant thereto.

23         (2)(a)  The board may enter an order denying licensure

24  or imposing any of the penalties in s. 456.072(2) against any

25  applicant for licensure or licensee who is found guilty of

26  violating any provision of subsection (1) of this section or

27  who is found guilty of violating any provision of s.

28  456.072(1).

29         Section 35.  For the purpose of incorporating the

30  amendment to section 456.072, Florida Statutes, in references

31  

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 1  thereto, subsections (1) and (2) of section 486.125, Florida

 2  Statutes, are reenacted to read:

 3         486.125  Refusal, revocation, or suspension of license;

 4  administrative fines and other disciplinary measures.--

 5         (1)  The following acts constitute grounds for denial

 6  of a license or disciplinary action, as specified in s.

 7  456.072(2):

 8         (a)  Being unable to practice physical therapy with

 9  reasonable skill and safety to patients by reason of illness

10  or use of alcohol, drugs, narcotics, chemicals, or any other

11  type of material or as a result of any mental or physical

12  condition.

13         1.  In enforcing this paragraph, upon a finding of the

14  secretary or the secretary's designee that probable cause

15  exists to believe that the licensee is unable to practice

16  physical therapy due to the reasons stated in this paragraph,

17  the department shall have the authority to compel a physical

18  therapist or physical therapist assistant to submit to a

19  mental or physical examination by a physician designated by

20  the department.  If the licensee refuses to comply with such

21  order, the department's order directing such examination may

22  be enforced by filing a petition for enforcement in the

23  circuit court where the licensee resides or serves as a

24  physical therapy practitioner.  The licensee against whom the

25  petition is filed shall not be named or identified by initials

26  in any public court records or documents, and the proceedings

27  shall be closed to the public.  The department shall be

28  entitled to the summary procedure provided in s. 51.011.

29         2.  A physical therapist or physical therapist

30  assistant whose license is suspended or revoked pursuant to

31  this subsection shall, at reasonable intervals, be given an

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 1  opportunity to demonstrate that she or he can resume the

 2  competent practice of physical therapy with reasonable skill

 3  and safety to patients.

 4         3.  Neither the record of proceeding nor the orders

 5  entered by the board in any proceeding under this subsection

 6  may be used against a physical therapist or physical therapist

 7  assistant in any other proceeding.

 8         (b)  Having committed fraud in the practice of physical

 9  therapy or deceit in obtaining a license as a physical

10  therapist or as a physical therapist assistant.

11         (c)  Being convicted or found guilty regardless of

12  adjudication, of a crime in any jurisdiction which directly

13  relates to the practice of physical therapy or to the ability

14  to practice physical therapy. The entry of any plea of nolo

15  contendere shall be considered a conviction for purpose of

16  this chapter.

17         (d)  Having treated or undertaken to treat human

18  ailments by means other than by physical therapy, as defined

19  in this chapter.

20         (e)  Failing to maintain acceptable standards of

21  physical therapy practice as set forth by the board in rules

22  adopted pursuant to this chapter.

23         (f)  Engaging directly or indirectly in the dividing,

24  transferring, assigning, rebating, or refunding of fees

25  received for professional services, or having been found to

26  profit by means of a credit or other valuable consideration,

27  such as an unearned commission, discount, or gratuity, with

28  any person referring a patient or with any relative or

29  business associate of the referring person.  Nothing in this

30  chapter shall be construed to prohibit the members of any

31  regularly and properly organized business entity which is

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 1  comprised of physical therapists and which is recognized under

 2  the laws of this state from making any division of their total

 3  fees among themselves as they determine necessary.

 4         (g)  Having a license revoked or suspended; having had

 5  other disciplinary action taken against her or him; or having

 6  had her or his application for a license refused, revoked, or

 7  suspended by the licensing authority of another state,

 8  territory, or country.

 9         (h)  Violating a lawful order of the board or

10  department previously entered in a disciplinary hearing.

11         (i)  Making or filing a report or record which the

12  licensee knows to be false.  Such reports or records shall

13  include only those which are signed in the capacity of a

14  physical therapist.

15         (j)  Practicing or offering to practice beyond the

16  scope permitted by law or accepting and performing

17  professional responsibilities which the licensee knows or has

18  reason to know that she or he is not competent to perform,

19  including, but not limited to, specific spinal manipulation.

20         (k)  Violating any provision of this chapter or chapter

21  456, or any rules adopted pursuant thereto.

22         (2)  The board may enter an order denying licensure or

23  imposing any of the penalties in s. 456.072(2) against any

24  applicant for licensure or licensee who is found guilty of

25  violating any provision of subsection (1) of this section or

26  who is found guilty of violating any provision of s.

27  456.072(1).

28         Section 36.  For the purpose of incorporating the

29  amendment to section 456.072, Florida Statutes, in references

30  thereto, section 490.009, Florida Statutes, is reenacted to

31  read:

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 1         490.009  Discipline.--

 2         (1)  The following acts constitute grounds for denial

 3  of a license or disciplinary action, as specified in s.

 4  456.072(2):

 5         (a)  Attempting to obtain, obtaining, or renewing a

 6  license under this chapter by bribery or fraudulent

 7  misrepresentation or through an error of the board or

 8  department.

 9         (b)  Having a license to practice a comparable

10  profession revoked, suspended, or otherwise acted against,

11  including the denial of certification or licensure by another

12  state, territory, or country.

13         (c)  Being convicted or found guilty, regardless of

14  adjudication, of a crime in any jurisdiction which directly

15  relates to the practice of his or her profession or the

16  ability to practice his or her profession.  A plea of nolo

17  contendere creates a rebuttable presumption of guilt of the

18  underlying criminal charges.  However, the board shall allow

19  the person who is the subject of the disciplinary proceeding

20  to present any evidence relevant to the underlying charges and

21  circumstances surrounding the plea.

22         (d)  False, deceptive, or misleading advertising or

23  obtaining a fee or other thing of value on the representation

24  that beneficial results from any treatment will be guaranteed.

25         (e)  Advertising, practicing, or attempting to practice

26  under a name other than one's own.

27         (f)  Maintaining a professional association with any

28  person who the applicant or licensee knows, or has reason to

29  believe, is in violation of this chapter or of a rule of the

30  department or, in the case of psychologists, of the department

31  or the board.

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 1         (g)  Knowingly aiding, assisting, procuring, or

 2  advising any nonlicensed person to hold himself or herself out

 3  as licensed under this chapter.

 4         (h)  Failing to perform any statutory or legal

 5  obligation placed upon a person licensed under this chapter.

 6         (i)  Willfully making or filing a false report or

 7  record; failing to file a report or record required by state

 8  or federal law; willfully impeding or obstructing the filing

 9  of a report or record; or inducing another person to make or

10  file a false report or record or to impede or obstruct the

11  filing of a report or record.  Such report or record includes

12  only a report or record which requires the signature of a

13  person licensed under this chapter.

14         (j)  Paying a kickback, rebate, bonus, or other

15  remuneration for receiving a patient or client, or receiving a

16  kickback, rebate, bonus, or other remuneration for referring a

17  patient or client to another provider of mental health care

18  services or to a provider of health care services or goods;

19  referring a patient or client to oneself for services on a

20  fee-paid basis when those services are already being paid for

21  by some other public or private entity; or entering into a

22  reciprocal referral agreement.

23         (k)  Committing any act upon a patient or client which

24  would constitute sexual battery or which would constitute

25  sexual misconduct as defined in s. 490.0111.

26         (l)  Making misleading, deceptive, untrue, or

27  fraudulent representations in the practice of any profession

28  licensed under this chapter.

29         (m)  Soliciting patients or clients personally, or

30  through an agent, through the use of fraud, intimidation,

31  

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 1  undue influence, or a form of overreaching or vexatious

 2  conduct.

 3         (n)  Failing to make available to a patient or client,

 4  upon written request, copies of test results, reports, or

 5  documents in the possession or under the control of the

 6  licensee which have been prepared for and paid for by the

 7  patient or client.

 8         (o)  Failing to respond within 30 days to a written

 9  communication from the department concerning any investigation

10  by the department or to make available any relevant records

11  with respect to any investigation about the licensee's conduct

12  or background.

13         (p)  Being unable to practice the profession for which

14  he or she is licensed under this chapter with reasonable skill

15  or competence as a result of any mental or physical condition

16  or by reason of illness; drunkenness; or excessive use of

17  drugs, narcotics, chemicals, or any other substance.  In

18  enforcing this paragraph, upon a finding by the secretary, the

19  secretary's designee, or the board that probable cause exists

20  to believe that the licensee is unable to practice the

21  profession because of the reasons stated in this paragraph,

22  the department shall have the authority to compel a licensee

23  to submit to a mental or physical examination by psychologists

24  or physicians designated by the department or board.  If the

25  licensee refuses to comply with the department's order, the

26  department may file a petition for enforcement in the circuit

27  court of the circuit in which the licensee resides or does

28  business.  The licensee shall not be named or identified by

29  initials in the petition or in any other public court records

30  or documents, and the enforcement proceedings shall be closed

31  to the public.  The department shall be entitled to the

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 1  summary procedure provided in s. 51.011.  A licensee affected

 2  under this paragraph shall be afforded an opportunity at

 3  reasonable intervals to demonstrate that he or she can resume

 4  the competent practice for which he or she is licensed with

 5  reasonable skill and safety to patients.

 6         (q)  Performing any treatment or prescribing any

 7  therapy which, by the prevailing standards of the mental

 8  health professions in the community, would constitute

 9  experimentation on human subjects, without first obtaining

10  full, informed, and written consent.

11         (r)  Failing to meet the minimum standards of

12  performance in professional activities when measured against

13  generally prevailing peer performance, including the

14  undertaking of activities for which the licensee is not

15  qualified by training or experience.

16         (s)  Delegating professional responsibilities to a

17  person whom the licensee knows or has reason to know is not

18  qualified by training or experience to perform such

19  responsibilities.

20         (t)  Violating a rule relating to the regulation of the

21  profession or a lawful order of the department previously

22  entered in a disciplinary hearing.

23         (u)  Failing to maintain in confidence a communication

24  made by a patient or client in the context of such services,

25  except as provided in s. 490.0147.

26         (v)  Making public statements which are derived from

27  test data, client contacts, or behavioral research and which

28  identify or damage research subjects or clients.

29         (w)  Violating any provision of this chapter or chapter

30  456, or any rules adopted pursuant thereto.

31  

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 1         (2)  The department, or in the case of psychologists,

 2  the board, may enter an order denying licensure or imposing

 3  any of the penalties in s. 456.072(2) against any applicant

 4  for licensure or licensee who is found guilty of violating any

 5  provision of subsection (1) of this section or who is found

 6  guilty of violating any provision of s. 456.072(1).

 7         Section 37.  For the purpose of incorporating the

 8  amendment to section 456.072, Florida Statutes, in references

 9  thereto, section 491.009, Florida Statutes, is reenacted to

10  read:

11         491.009  Discipline.--

12         (1)  The following acts constitute grounds for denial

13  of a license or disciplinary action, as specified in s.

14  456.072(2):

15         (a)  Attempting to obtain, obtaining, or renewing a

16  license, registration, or certificate under this chapter by

17  bribery or fraudulent misrepresentation or through an error of

18  the board or the department.

19         (b)  Having a license, registration, or certificate to

20  practice a comparable profession revoked, suspended, or

21  otherwise acted against, including the denial of certification

22  or licensure by another state, territory, or country.

23         (c)  Being convicted or found guilty of, regardless of

24  adjudication, or having entered a plea of nolo contendere to,

25  a crime in any jurisdiction which directly relates to the

26  practice of his or her profession or the ability to practice

27  his or her profession.  However, in the case of a plea of nolo

28  contendere, the board shall allow the person who is the

29  subject of the disciplinary proceeding to present evidence in

30  mitigation relevant to the underlying charges and

31  circumstances surrounding the plea.

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 1         (d)  False, deceptive, or misleading advertising or

 2  obtaining a fee or other thing of value on the representation

 3  that beneficial results from any treatment will be guaranteed.

 4         (e)  Advertising, practicing, or attempting to practice

 5  under a name other than one's own.

 6         (f)  Maintaining a professional association with any

 7  person who the applicant, licensee, registered intern, or

 8  certificateholder knows, or has reason to believe, is in

 9  violation of this chapter or of a rule of the department or

10  the board.

11         (g)  Knowingly aiding, assisting, procuring, or

12  advising any nonlicensed, nonregistered, or noncertified

13  person to hold himself or herself out as licensed, registered,

14  or certified under this chapter.

15         (h)  Failing to perform any statutory or legal

16  obligation placed upon a person licensed, registered, or

17  certified under this chapter.

18         (i)  Willfully making or filing a false report or

19  record; failing to file a report or record required by state

20  or federal law; willfully impeding or obstructing the filing

21  of a report or record; or inducing another person to make or

22  file a false report or record or to impede or obstruct the

23  filing of a report or record.  Such report or record includes

24  only a report or record which requires the signature of a

25  person licensed, registered, or certified under this chapter.

26         (j)  Paying a kickback, rebate, bonus, or other

27  remuneration for receiving a patient or client, or receiving a

28  kickback, rebate, bonus, or other remuneration for referring a

29  patient or client to another provider of mental health care

30  services or to a provider of health care services or goods;

31  referring a patient or client to oneself for services on a

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 1  fee-paid basis when those services are already being paid for

 2  by some other public or private entity; or entering into a

 3  reciprocal referral agreement.

 4         (k)  Committing any act upon a patient or client which

 5  would constitute sexual battery or which would constitute

 6  sexual misconduct as defined pursuant to s. 491.0111.

 7         (l)  Making misleading, deceptive, untrue, or

 8  fraudulent representations in the practice of any profession

 9  licensed, registered, or certified under this chapter.

10         (m)  Soliciting patients or clients personally, or

11  through an agent, through the use of fraud, intimidation,

12  undue influence, or a form of overreaching or vexatious

13  conduct.

14         (n)  Failing to make available to a patient or client,

15  upon written request, copies of tests, reports, or documents

16  in the possession or under the control of the licensee,

17  registered intern, or certificateholder which have been

18  prepared for and paid for by the patient or client.

19         (o)  Failing to respond within 30 days to a written

20  communication from the department or the board concerning any

21  investigation by the department or the board, or failing to

22  make available any relevant records with respect to any

23  investigation about the licensee's, registered intern's, or

24  certificateholder's conduct or background.

25         (p)  Being unable to practice the profession for which

26  he or she is licensed, registered, or certified under this

27  chapter with reasonable skill or competence as a result of any

28  mental or physical condition or by reason of illness;

29  drunkenness; or excessive use of drugs, narcotics, chemicals,

30  or any other substance. In enforcing this paragraph, upon a

31  finding by the secretary, the secretary's designee, or the

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 1  board that probable cause exists to believe that the licensee,

 2  registered intern, or certificateholder is unable to practice

 3  the profession because of the reasons stated in this

 4  paragraph, the department shall have the authority to compel a

 5  licensee, registered intern, or certificateholder to submit to

 6  a mental or physical examination by psychologists, physicians,

 7  or other licensees under this chapter, designated by the

 8  department or board. If the licensee, registered intern, or

 9  certificateholder refuses to comply with such order, the

10  department's order directing the examination may be enforced

11  by filing a petition for enforcement in the circuit court in

12  the circuit in which the licensee, registered intern, or

13  certificateholder resides or does business. The licensee,

14  registered intern, or certificateholder against whom the

15  petition is filed shall not be named or identified by initials

16  in any public court records or documents, and the proceedings

17  shall be closed to the public.  The department shall be

18  entitled to the summary procedure provided in s. 51.011. A

19  licensee, registered intern, or certificateholder affected

20  under this paragraph shall at reasonable intervals be afforded

21  an opportunity to demonstrate that he or she can resume the

22  competent practice for which he or she is licensed,

23  registered, or certified with reasonable skill and safety to

24  patients.

25         (q)  Performing any treatment or prescribing any

26  therapy which, by the prevailing standards of the mental

27  health professions in the community, would constitute

28  experimentation on human subjects, without first obtaining

29  full, informed, and written consent.

30         (r)  Failing to meet the minimum standards of

31  performance in professional activities when measured against

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 1  generally prevailing peer performance, including the

 2  undertaking of activities for which the licensee, registered

 3  intern, or certificateholder is not qualified by training or

 4  experience.

 5         (s)  Delegating professional responsibilities to a

 6  person whom the licensee, registered intern, or

 7  certificateholder knows or has reason to know is not qualified

 8  by training or experience to perform such responsibilities.

 9         (t)  Violating a rule relating to the regulation of the

10  profession or a lawful order of the department or the board

11  previously entered in a disciplinary hearing.

12         (u)  Failure of the licensee, registered intern, or

13  certificateholder to maintain in confidence a communication

14  made by a patient or client in the context of such services,

15  except as provided in s. 491.0147.

16         (v)  Making public statements which are derived from

17  test data, client contacts, or behavioral research and which

18  identify or damage research subjects or clients.

19         (w)  Violating any provision of this chapter or chapter

20  456, or any rules adopted pursuant thereto.

21         (2)  The department, or, in the case of psychologists,

22  the board, may enter an order denying licensure or imposing

23  any of the penalties in s. 456.072(2) against any applicant

24  for licensure or licensee who is found guilty of violating any

25  provision of subsection (1) of this section or who is found

26  guilty of violating any provision of s. 456.072(1).

27         Section 38.  Paragraph (d) is added to subsection (1)

28  of section 458.345, Florida Statutes, to read:

29         458.345  Registration of resident physicians, interns,

30  and fellows; list of hospital employees; prescribing of

31  medicinal drugs; penalty.--

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 1         (1)  Any person desiring to practice as a resident

 2  physician, assistant resident physician, house physician,

 3  intern, or fellow in fellowship training which leads to

 4  subspecialty board certification in this state, or any person

 5  desiring to practice as a resident physician, assistant

 6  resident physician, house physician, intern, or fellow in

 7  fellowship training in a teaching hospital in this state as

 8  defined in s. 408.07(44) or s. 395.805(2), who does not hold a

 9  valid, active license issued under this chapter shall apply to

10  the department to be registered and shall remit a fee not to

11  exceed $300 as set by the board.  The department shall

12  register any applicant the board certifies has met the

13  following requirements:

14         (d)  Has completed, upon initial registration, the

15  1-hour educational course in the prescribing and pharmacology

16  of controlled substances as set forth in section 2 of this

17  act. An applicant who has not taken a course at the time of

18  registration shall be allowed up to 6 months within which to

19  complete this requirement.

20         Section 39.  Subsection (1) of section 461.013, Florida

21  Statutes, is reenacted and amended, and subsection (2) of said

22  section is reenacted, to read:

23         461.013  Grounds for disciplinary action; action by the

24  board; investigations by department.--

25         (1)  The following acts constitute grounds for denial

26  of a license or disciplinary action, as specified in s.

27  456.072(2):

28         (a)  Attempting to obtain, obtaining, or renewing a

29  license to practice podiatric medicine by bribery, by

30  fraudulent misrepresentations, or through an error of the

31  department or the board.

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 1         (b)  Having a license to practice podiatric medicine

 2  revoked, suspended, or otherwise acted against, including the

 3  denial of licensure, by the licensing authority of another

 4  state, territory, or country.

 5         (c)  Being convicted or found guilty, regardless of

 6  adjudication, of a crime in any jurisdiction which directly

 7  relates to the practice of podiatric medicine or to the

 8  ability to practice podiatric medicine.  Any plea of nolo

 9  contendere shall be considered a conviction for purposes of

10  this chapter.

11         (d)  False, deceptive, or misleading advertising.

12         (e)  Advertising, practicing, or attempting to practice

13  under a name other than one's own.

14         (f)  Failing to report to the department any person who

15  the licensee knows is in violation of this chapter or of the

16  rules of the department or the board.

17         (g)  Aiding, assisting, procuring, permitting, or

18  advising any unlicensed person to practice podiatric medicine

19  contrary to this chapter or to rule of the department or the

20  board.

21         (h)  Failing to perform any statutory or legal

22  obligation placed upon a licensed podiatric physician.

23         (i)  Making or filing a report which the licensee knows

24  to be false, intentionally or negligently failing to file a

25  report or record required by state or federal law, willfully

26  impeding or obstructing such filing or inducing another person

27  to do so.  Such report or records shall include only those

28  which are signed in the capacity of a licensed podiatric

29  physician.

30         (j)  Making misleading, deceptive, untrue, or

31  fraudulent representations in the practice of podiatric

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 1  medicine or employing a trick or scheme in the practice of

 2  podiatric medicine when such scheme or trick fails to conform

 3  to the generally prevailing standards of treatment in the

 4  podiatric community.

 5         (k)  Soliciting patients either personally or through

 6  an agent, unless such solicitation falls into a category of

 7  solicitations approved by rule of the board.

 8         (l)  Failing to keep written medical records justifying

 9  the course of treatment of the patient, including, but not

10  limited to, patient histories, examination results, and test

11  results.

12         (m)  Exercising influence on the patient or client in

13  such a manner as to exploit the patient or client for

14  financial gain of the licensee or of a third party which shall

15  include, but not be limited to, the promotion or sale of

16  services, goods, appliances, or drugs and the promoting or

17  advertising on any prescription form of a community pharmacy

18  unless the form shall also state "This prescription may be

19  filled at any pharmacy of your choice."

20         (n)  Performing professional services which have not

21  been duly authorized by the patient or client or her or his

22  legal representative except as provided in ss. 743.064,

23  766.103, and 768.13.

24         (o)  Prescribing, dispensing, administering, mixing, or

25  otherwise preparing a legend drug, including all controlled

26  substances, other than in the course of the podiatric

27  physician's professional practice.  For the purposes of this

28  paragraph, it shall be legally presumed that prescribing,

29  dispensing, administering, mixing, or otherwise preparing

30  legend drugs, including all controlled substances,

31  inappropriately or in excessive or inappropriate quantities is

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 1  not in the best interest of the patient and is not in the

 2  course of the podiatric physician's professional practice,

 3  without regard to her or his intent.

 4         (p)  Prescribing, dispensing, or administering any

 5  medicinal drug appearing on any schedule set forth in chapter

 6  893 by the podiatric physician to herself or himself except

 7  those prescribed, dispensed, or administered to the podiatric

 8  physician by another practitioner authorized to prescribe,

 9  dispense, or administer them.

10         (q)  Prescribing, ordering, dispensing, administering,

11  supplying, selling, or giving any amphetamine or

12  sympathomimetic amine drug or compound designated as a

13  Schedule II controlled substance pursuant to chapter 893.

14         (r)  Being unable to practice podiatric medicine with

15  reasonable skill and safety to patients by reason of illness

16  or use of alcohol, drugs, narcotics, chemicals, or any other

17  type of material or as a result of any mental or physical

18  condition.  In enforcing this paragraph the department shall,

19  upon probable cause, have authority to compel a podiatric

20  physician to submit to a mental or physical examination by

21  physicians designated by the department. Failure of a

22  podiatric physician to submit to such examination when

23  directed shall constitute an admission of the allegations

24  against her or him, unless the failure was due to

25  circumstances beyond her or his control, consequent upon which

26  a default and final order may be entered without the taking of

27  testimony or presentation of evidence.  A podiatric physician

28  affected under this paragraph shall at reasonable intervals be

29  afforded an opportunity to demonstrate that she or he can

30  resume the competent practice of podiatric medicine with

31  reasonable skill and safety to patients.

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 1         (s)  Gross or repeated malpractice or the failure to

 2  practice podiatric medicine at a level of care, skill, and

 3  treatment which is recognized by a reasonably prudent

 4  podiatric physician as being acceptable under similar

 5  conditions and circumstances.  The board shall give great

 6  weight to the standards for malpractice in s. 766.102 in

 7  interpreting this section. As used in this paragraph,

 8  "repeated malpractice" includes, but is not limited to, three

 9  or more claims for medical malpractice within the previous

10  5-year period resulting in indemnities being paid in excess of

11  $10,000 each to the claimant in a judgment or settlement and

12  which incidents involved negligent conduct by the podiatric

13  physicians. As used in this paragraph, "gross malpractice" or

14  "the failure to practice podiatric medicine with the level of

15  care, skill, and treatment which is recognized by a reasonably

16  prudent similar podiatric physician as being acceptable under

17  similar conditions and circumstances" shall not be construed

18  so as to require more than one instance, event, or act.

19         (t)  Performing any procedure or prescribing any

20  therapy which, by the prevailing standards of podiatric

21  medical practice in the community, would constitute

22  experimentation on human subjects without first obtaining

23  full, informed, and written consent.

24         (u)  Practicing or offering to practice beyond the

25  scope permitted by law or accepting and performing

26  professional responsibilities which the licensee knows or has

27  reason to know that she or he is not competent to perform.

28         (v)  Delegating professional responsibilities to a

29  person when the licensee delegating such responsibilities

30  knows or has reason to know that such person is not qualified

31  by training, experience, or licensure to perform them.

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 1         (w)  Violating a lawful order of the board or

 2  department previously entered in a disciplinary hearing or

 3  failing to comply with a lawfully issued subpoena of the board

 4  or department.

 5         (x)  Conspiring with another licensee or with any other

 6  person to commit an act, or committing an act, which would

 7  tend to coerce, intimidate, or preclude another licensee from

 8  lawfully advertising her or his services.

 9         (y)  Prescribing, ordering, dispensing, administering,

10  supplying, selling, or giving growth hormones, testosterone or

11  its analogs, human chorionic gonadotropin (HCG), or other

12  hormones for the purpose of muscle building or to enhance

13  athletic performance. For the purposes of this subsection, the

14  term "muscle building" does not include the treatment of

15  injured muscle.  A prescription written for any of the drug

16  products listed above may be dispensed by the pharmacist with

17  the presumption that the prescription is for legitimate

18  medical use.

19         (z)  Fraud, deceit, or misconduct in the practice of

20  podiatric medicine.

21         (aa)  Failing to report to the department any licensee

22  under chapter 458 or chapter 459 who the podiatric physician

23  knows has violated the grounds for disciplinary action set out

24  in the law under which that person is licensed and who

25  provides health care services in a facility licensed under

26  chapter 395, or a health maintenance organization certificated

27  under part I of chapter 641, in which the podiatric physician

28  also provides services.

29         (bb)  Failing to comply with the requirements of ss.

30  381.026 and 381.0261 to provide patients with information

31  

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 1  about their patient rights and how to file a patient

 2  complaint.

 3         (cc)  Presigning blank prescription forms.

 4         (dd)(cc)  Violating any provision of this chapter or

 5  chapter 456, or any rules adopted pursuant thereto.

 6         (2)  The board may enter an order denying licensure or

 7  imposing any of the penalties in s. 456.072(2) against any

 8  applicant for licensure or licensee who is found guilty of

 9  violating any provision of subsection (1) of this section or

10  who is found guilty of violating any provision of s.

11  456.072(1).

12         Section 40.  Paragraphs (h), (i), (j), (k), and (l) are

13  added to subsection (1) of section 893.04, Florida Statutes,

14  to read:

15         893.04  Pharmacist and practitioner.--

16         (1)  A pharmacist, in good faith and in the course of

17  professional practice only, may dispense controlled substances

18  upon a written or oral prescription of a practitioner, under

19  the following conditions:

20         (h)  A pharmacist may not dispense a Schedule II

21  controlled substance; codeine, hydrocodone, dihydrocodeine,

22  ethylmorphine, or morphine, as scheduled in Schedules II and

23  III; or a drug of abuse designated by the Department of Health

24  by rule under the electronic prescription-monitoring system to

25  any individual not personally known to the pharmacist without

26  first obtaining suitable identification and documenting, in a

27  log book kept by the pharmacist, the identity of the

28  individual obtaining the controlled substance or drug. The log

29  book entry must contain the printed name, address, telephone

30  number if available, driver's license number or other suitable

31  identification number, and signature of the person obtaining

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 1  the controlled substance or drug. If the individual does not

 2  have suitable identification or it is impracticable to obtain

 3  such identification, the pharmacist may dispense the

 4  controlled substance or drug only when the pharmacist

 5  determines, in the exercise of his or her professional

 6  judgment, that the order is valid and necessary for treatment.

 7  In such a case, the pharmacist or his or her designee must

 8  obtain the other information required under this paragraph,

 9  and the pharmacist or pharmacist's designee must sign the log

10  to indicate that suitable identification was not available and

11  that the pharmacist's professional judgment was exercised

12  prior to dispensing the controlled substance or drug. The

13  Board of Pharmacy may adopt, by rule, procedures for a

14  pharmacist to verify the validity of a prescription for a

15  Schedule II controlled substance; codeine, hydrocodone,

16  dihydrocodeine, ethylmorphine, or morphine, as scheduled in

17  Schedules II and III; or any other drug designated by the

18  Department of Health by rule, for circumstances when it is

19  otherwise impracticable for the pharmacist or dispensing

20  practitioner to obtain suitable identification from the

21  patient or the patient's agent. For purposes of this

22  paragraph, identification is suitable only if it contains the

23  photograph, printed name, and signature of the individual

24  obtaining the controlled substance or drug.

25         (i)  Any pharmacist who dispenses by mail a Schedule II

26  controlled substance or drug subject to the requirements of

27  this section shall be exempt from the requirements to obtain

28  suitable identification.

29         (j)  All prescriptions issued for a Schedule II

30  controlled substance; codeine, hydrocodone, dihydrocodeine,

31  ethylmorphine, or morphine, as scheduled in Schedules II and

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 1  III; or a drug of abuse designated by the Department of Health

 2  by rule under the electronic prescription-monitoring system

 3  must include both a written and numerical notation of quantity

 4  on the face of the prescription.

 5         (k)  A pharmacist may not dispense more than a 30-day

 6  supply of a controlled substance listed in Schedule III upon

 7  an oral prescription.

 8         (l)  A pharmacist may not knowingly fill a prescription

 9  that has been mutilated or forged for a Schedule II controlled

10  substance; codeine, hydrocodone, dihydrocodeine,

11  ethylmorphine, or morphine, as scheduled in Schedules II and

12  III; or a drug of abuse designated by the Department of Health

13  by rule under the electronic prescription-monitoring system.

14         Section 41.  Subsection (2) of section 499.007, Florida

15  Statutes, is amended to read:

16         499.007  Misbranded drug or device.--A drug or device

17  is misbranded:

18         (2)  Unless, if in package form, it bears a label

19  containing:

20         (a)  The name and place of business of the manufacturer

21  or distributor; in addition, for a medicinal drug, as defined

22  in s. 499.003, the label must contain the name and place of

23  business of the manufacturer of the finished dosage form of

24  the drug.  For the purpose of this paragraph, the finished

25  dosage form of a medicinal drug is that form of the drug which

26  is, or is intended to be, dispensed or administered to the

27  patient and requires no further manufacturing or processing

28  other than packaging, reconstitution, and labeling; and

29         (b)  An accurate statement of the quantity of the

30  contents in terms of weight, measure, or numerical count;

31  however, under this section, reasonable variations are

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 1  permitted, and the department shall establish by rule

 2  exemptions for small packages.

 3  

 4  A drug dispensed by filling or refilling a written or oral

 5  prescription of a practitioner licensed by law to prescribe

 6  such drug is exempt from the requirements of this section,

 7  except subsections (1), (8), (10), and (11) and the packaging

 8  requirements of subsections (6) and (7), if the drug bears a

 9  label that contains the name and address of the dispenser or

10  seller, the prescription number and the date the prescription

11  was written or filled, the name of the prescriber and the name

12  of the patient, and the directions for use and cautionary

13  statements.  This exemption does not apply to any drug

14  dispensed in the course of the conduct of a business of

15  dispensing drugs pursuant to diagnosis by mail or to any drug

16  dispensed in violation of subsection (12).  The department

17  may, by rule, exempt drugs subject to ss. 499.062-499.064 from

18  subsection (12) if compliance with that subsection is not

19  necessary to protect the public health, safety, and welfare.

20         Section 42.  Each district school board shall adopt and

21  implement policies prohibiting any district school personnel

22  from recommending the use of psychotropic drugs for any

23  student. This section does not prohibit school medical staff

24  from recommending that a student be evaluated by a medical

25  practitioner.

26         Section 43.  If any law amended by this act was also

27  amended by a law enacted during the 2002 Regular Session of

28  the Legislature, such laws shall be construed to have been

29  enacted during the same session of the Legislature and full

30  effect shall be given to each if possible.

31  

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 1         Section 44.  This act shall take effect July 1, 2002,

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