Senate Bill sb0028Ee1
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    CS for SB 28-E                                 First Engrossed
  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; requiring certain health care
  6         providers to complete education courses
  7         relating to the prescription of controlled
  8         substances; providing penalties; providing for
  9         the emergency suspension of certain licenses
10         for prescribing violations; requiring the
11         Department of Health, the Department of Law
12         Enforcement, the Statewide Prosecutor, and
13         State Attorneys to share certain information
14         regarding health care practitioners; requiring
15         a report; requiring the Bureau of Pharmacy
16         Services of the Department of Health to
17         establish an electronic system for identifying
18         licensees and patients who engage in certain
19         fraudulent or illegal practices; authorizing
20         the Bureau of Pharmacy Services to contract for
21         the administration of the electronic monitoring
22         system for certain controlled substances;
23         establishing an advisory council and providing
24         for its membership, duties, staff, and
25         compensation; requiring the Bureau of Pharmacy
26         Services of the Department of Health to
27         recommend performance-based measures to the
28         Legislature for the electronic monitoring
29         system; requiring that the Bureau of Pharmacy
30         Services report to the Legislature on
31         implementation of the electronic monitoring
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    CS for SB 28-E                                 First Engrossed
 1         system; providing requirements for the report;
 2         providing duties of the Bureau of Pharmacy
 3         Services with respect to the purposes and use
 4         of the electronic monitoring system;
 5         prohibiting the use of specified funds for the
 6         electronic monitoring system; amending s.
 7         456.033, F.S.; eliminating certain requirements
 8         for HIV and AIDS education courses; amending s.
 9         456.072, F.S.; revising disciplinary penalties
10         applicable to health care practitioners;
11         reenacting ss. 456.082(2), 457.109(1) and (2),
12         458.331(1) and (2), 458.347(7)(g), 459.015(1)
13         and (2), 459.022(7)(f), 460.413(1) and (2),
14         461.013(1) and (2), 462.14(1) and (2),
15         463.016(1) and (2), 464.018(1) and (2),
16         465.016(1) and (2), 466.028(1) and (2),
17         467.203(1) and (2), 468.1295(1) and (2),
18         468.1755(1) and (2), 468.217(1) and (2),
19         468.365(1) and (2), 468.518(1) and (2),
20         468.719, 468.811, 478.52(1) and (2), 480.046(1)
21         and (2), 483.825(1) and (2), 483.901(6)(g) and
22         (h), 484.014(1) and (2), 484.056(1) and (2)(a),
23         486.125(1) and (2), 490.009, and 491.009, F.S.,
24         relating to grounds for disciplinary action
25         applicable to persons involved in health care
26         practice, including acupuncture, medical
27         practice, osteopathic medicine, chiropractic
28         medicine, podiatric medicine, naturopathy,
29         optometry, nursing, pharmacy, dentistry,
30         midwifery, speech-language pathology and
31         audiology, nursing home administration,
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    CS for SB 28-E                                 First Engrossed
 1         occupational therapy, respiratory therapy,
 2         dietetics and nutrition practice, athletic
 3         trainers, orthotics, prosthetics, and
 4         pedorthics, electrolysis, massage practice,
 5         clinical laboratory personnel, medical
 6         physicists, dispensing of optical devices and
 7         hearing aids, physical therapy practice,
 8         psychological services, and clinical,
 9         counseling, and psychotherapy services, to
10         incorporate the amendment to s. 456.072, F.S.,
11         in references thereto; amending s. 458.345,
12         F.S.; requiring certain resident physicians,
13         interns, and fellows to complete an educational
14         course in prescribing controlled substances;
15         amending s. 461.013, F.S.; prohibiting the
16         presigning of blank prescription forms and
17         providing penalties; amending s. 893.04, F.S.;
18         providing additional requirements for
19         pharmacists regarding the identification of
20         persons to whom controlled substances are
21         dispensed; prohibiting certain prescribing
22         practitioners from possessing, administering,
23         dispensing, or prescribing controlled
24         substances; directing local and regional boards
25         of education to prohibit personnel from
26         recommending use of psychotropic drugs on a
27         child; providing for construction of the act in
28         pari materia with laws enacted during the
29         Regular Session of the Legislature; providing
30         an appropriation; providing an effective date.
31  
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    CS for SB 28-E                                 First Engrossed
 1  Be It Enacted by the Legislature of the State of Florida:
 2  
 3         Section 1.  Physicians; rules establishing prescribing
 4  guidelines.--To minimize the diversion and resultant abuse of
 5  controlled substances, the Board of Medicine and the Board of
 6  Osteopathic Medicine shall adopt rules to establish guidelines
 7  for prescribing controlled substances to patients in
 8  emergency-department settings. Such guidelines must allow
 9  physicians to provide legitimate medical treatment of acute
10  and chronic pain and require them to recognize and prevent
11  abuse of pain medications prescribed in emergency-department
12  settings. The guidelines must also consider requirements of
13  state and federal law and of the Joint Commission on the
14  Accreditation of Healthcare Organizations. Each board shall
15  consult with the Florida College of Emergency Physicians in
16  developing these guidelines.
17         Section 2.  Instruction required for certain licensees
18  in prescribing and pharmacology.--
19         (1)  The appropriate professional licensing board shall
20  require each person licensed under chapter 458, chapter 459,
21  chapter 461, chapter 462, part I of chapter 464, or chapter
22  466, Florida Statutes, to complete a 1-hour educational
23  course, approved by the board, on appropriate prescribing and
24  pharmacology of controlled substances, as part of the
25  licensee's initial license renewal after January 1, 2003. The
26  course shall provide education in the state and federal laws
27  and rules governing the prescribing and dispensing of
28  controlled substances; in appropriate evaluation of patients
29  for any risk of drug diversion and the resulting abuse of
30  controlled substances; in the use of informed consent and
31  other protocols, such as discussing the risks and benefits of
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    CS for SB 28-E                                 First Engrossed
 1  using controlled substances with patients, to prevent drug
 2  diversion; in the need to keep accurate and complete medical
 3  records to justify treatment with controlled substances; in
 4  addiction and substance-abuse issues with respect to patients;
 5  in the appropriate use of recognized pain-management
 6  guidelines; and in the need for consultation and referral of
 7  patients who are at risk for misuse of medication or diversion
 8  of controlled substances, when appropriate.
 9         (2)  The board may approve additional equivalent
10  courses that satisfy the requirements of subsection (1). Each
11  licensing board that requires a licensee to complete an
12  educational course pursuant to this section shall include the
13  hours required to complete the course in the total required
14  continuing educational requirements.
15         (3)  Any person who holds two or more licenses subject
16  to this section may satisfy the requirements of this section
17  by taking only one such board-approved course for relicensure
18  of all such licenses.
19         (4)  A licensee who fails to comply with this section
20  is subject to disciplinary action under each respective
21  practice act and section 456.072(1)(k), Florida Statutes. In
22  addition to disciplinary action by the board, the licensee
23  must complete the course no later than 1 year first receiving
24  notice of disciplinary action pursuant to this section. Unless
25  the board grants the licensee a waiver for good cause shown,
26  the licensee forfeits the privilege to prescribe or dispense
27  controlled substances until the licensee completes the course.
28         (5)  The board shall require, as a condition of
29  granting a license under the chapter specified in subsection
30  (1), that an applicant for initial licensure complete an
31  educational course set forth in subsection (1). An applicant
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    CS for SB 28-E                                 First Engrossed
 1  who has not taken a course at the time of licensure shall be
 2  allowed 6 months within which to complete this requirement.
 3         (6)  The board may adopt rules necessary to administer
 4  this section.
 5         Section 3.  Emergency suspension orders; controlled
 6  substances.--Upon receipt of sufficient evidence from any
 7  agency authorized to enforce chapter 893, Florida Statutes,
 8  regarding a violation of section 458.331(1)(q), section
 9  458.331(1)(r), section 458.331(1)(aa), section 459.015(1)(t),
10  section 459.015(1)(u), section 459.015(1)(ee), section
11  461.013(1)(o), section 461.013(1)(p), section 461.013(1)(dd),
12  section 462.14(1)(q), section 462.14(1)(r), section
13  462.14(1)(aa), section 464.018(1)(i), section 465.016(1)(e),
14  section 465.016(1)(i), section 466.028(1)(p), section
15  466.028(1)(q), section 466.028(1)(r), or section
16  466.028(1)(dd), Florida Statutes, or of chapter 893, Florida
17  Statutes, by a licensed health care practitioner who is
18  authorized to prescribe, dispense, or administer controlled
19  substances, the Department of Health shall review the case and
20  if there is a reason to believe that the practitioner is a
21  danger to the public health, safety, or welfare as set forth
22  in section 120.60(6), Florida Statutes, shall recommend the
23  suspension or restriction of the practitioner's license to the
24  Secretary of Health within 10 working days after receiving
25  such evidence. If a sufficient basis is found to exist, the
26  Secretary of Health must suspend or restrict the license of
27  the practitioner in accordance with section 120.60(6), Florida
28  Statutes.
29         Section 4.  Sharing of arrest, formal-charging, and
30  other information regarding health care practitioners.--
31  
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    CS for SB 28-E                                 First Engrossed
 1         (1)  In order to facilitate the efficiency of the
 2  Department of Health's investigation of applicable violations
 3  involving the diversion of controlled substances by such
 4  practitioners, or other violations of criminal law that may
 5  adversely affect a practitioner's licensed practice, any law
 6  enforcement agency that arrests a person known or suspected to
 7  be a health care practitioner licensed by the state shall
 8  promptly notify the Department of Health and provide it with:
 9         (a)  Notice of the arrest, including the name of the
10  arresting agency and lead investigator, detective, or officer
11  in the case;
12         (b)  The name of the person charged;
13         (c)  All known personal identifying information related
14  to the person arrested;
15         (d)  The date of the arrest;
16         (e)  The charges for which the person is arrested;
17         (f)  The agency case number assigned to the arrest; and
18         (g)  The arrest report, investigative report, or
19  statement of the allegations supporting the arrest.
20         (2)  A state attorney or the Statewide Prosecutor, upon
21  the filing of an indictment or information against a person
22  known or suspected to be a health care practitioner licensed
23  by the state, shall forward a copy of the indictment or
24  information to the Department of Health.
25         (3)  The Medical Examiners Commission within the
26  Department of Law Enforcement shall report to the Department
27  of Health quarterly any information, including the medical
28  history and medical care at the time of death, which is in its
29  possession regarding the deaths of persons whose proximate
30  cause of death was lethal levels of controlled substances in
31  
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    CS for SB 28-E                                 First Engrossed
 1  their bodies as such information has been reported to the
 2  commission by the medical examiners within the state.
 3         (4)  Upon receipt of arrest information from a law
 4  enforcement agency or notice of formal charging by a
 5  prosecuting entity, the Department of Health or the board
 6  having regulatory authority over the practitioner shall
 7  investigate any information received and determine whether it
 8  has reasonable grounds to believe that the practitioner has
 9  violated any law or rule relating to the practitioner's
10  practice and shall take appropriate licensure action as
11  provided by law or rule. If the Department of Health receives
12  information pursuant to this section which suggests that the
13  person arrested or charged is also licensed by the state in
14  another field or profession, the Department of Health shall
15  forward such information to the appropriate licensing entity
16  for review and appropriate licensure action as provided by law
17  or rule.
18         (5)  To help the Department of Health and regulatory
19  boards control the diversion and resultant abuse of controlled
20  substances, the Department of Health and the Department of Law
21  Enforcement shall study the feasibility of expanding the
22  electronic exchange of information to facilitate the transfer
23  to the Department of Health of criminal-history information
24  involving licensed health care practitioners who are
25  authorized to prescribe, administer, or dispense controlled
26  substances. The study must address whether the collection and
27  retention of fingerprint information concerning licensed
28  health care practitioners subject to the profiling provisions
29  of sections 456.039 and 456.0391, Florida Statutes, is
30  advisable as a means of better regulating such practitioners
31  and guarding against abuse of the privileges of such licensure
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    CS for SB 28-E                                 First Engrossed
 1  with respect to controlling the diversion and resultant abuse
 2  of controlled substances. The Department of Law Enforcement
 3  shall investigate the feasibility of the electronic
 4  transmission of information from medical examiners within this
 5  state to the Department of Health regarding autopsies and
 6  other public reports that attribute death to
 7  controlled-substance abuse. The Department of Law Enforcement,
 8  in consultation with the Department of Health, must submit a
 9  report of its findings to the Legislature by November 1, 2002.
10         Section 5.  Electronic monitoring system for
11  prescriptions.--
12         (1)  By July 1, 2003, the Bureau of Pharmacy Services
13  of the Department of Health shall design and establish an
14  electronic system consistent with the National Council of
15  Prescription Drug Programs (NCPDP) standards or the American
16  Society for Automation in Pharmacy (ASAP) standards to monitor
17  the prescribing of Schedule II controlled substances; other
18  drugs designated by rule by the Secretary of Health under this
19  section; and codeine, hydrocodone, dihydrocodeine,
20  ethylmorphine, and morphine, as scheduled in Schedule II and
21  Schedule III, by health care practitioners within the state or
22  the dispensing of such controlled substances to an address
23  within the state by a pharmacy permitted or registered by the
24  Board of Pharmacy. The Bureau of Pharmacy Services of the
25  Department of Health may administer or contract for the
26  administration of the electronic monitoring system established
27  under this section.
28         (2)  All Schedule II controlled substances; codeine,
29  hydrocodone, dihydrocodeine, ethylmorphine, and morphine as
30  scheduled in Schedule II and Schedule III; and any other drug
31  designated by the Secretary of Health under this section shall
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    CS for SB 28-E                                 First Engrossed
 1  be included in the electronic monitoring system. The Secretary
 2  of Health may, by rule, designate any other drug for inclusion
 3  in such system after consideration of the following:
 4         (a)  Whether the substance has been rescheduled by rule
 5  adopted by the United States Attorney General pursuant to s.
 6  201 of the Comprehensive Drug Abuse Prevention and Control Act
 7  of 1970, 21 U.S.C. s. 811.
 8         (b)  The substance's actual or relative potential for
 9  abuse as defined in chapter 893, Florida Statutes.
10         (c)  Scientific evidence of the substance's
11  pharmacological effect, if known.
12         (d)  The state of current scientific knowledge
13  regarding the substance.
14         (e)  The substance's history and current pattern of
15  abuse.
16         (f)  The scope, duration, and significance of abuse.
17         (g)  What, if any, risk there is to the public health.
18         (h)  The substance's psychic or physiological
19  dependence liability.
20         (i)  The recommendations of the prescription monitoring
21  advisory council.
22         (3)  Beginning September 1, 2002, or upon the effective
23  date of the rule prescribing the format for the electronic
24  monitoring system, whichever occurs later, each controlled
25  substance or drug subject to this section which is dispensed
26  in this state must be timely reported to the Bureau of
27  Pharmacy Services of the Department of Health. Such data must
28  be reported each time that:
29         (a)  A Schedule II controlled substance is dispensed;
30         (b)  A drug that is designated by the Secretary of
31  Health under subsection (2) is dispensed; or
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    CS for SB 28-E                                 First Engrossed
 1         (c)  Codeine, hydrocodone, dihydrocodeine,
 2  ethylmorphine, or morphine as scheduled in Schedule II and
 3  Schedule III is dispensed.
 4         (4)  This section does not apply to controlled
 5  substances or drugs:
 6         (a)  Ordered from an institutional pharmacy licensed
 7  under section 465.019(2), Florida Statutes, in accordance with
 8  the institutional policy for such controlled substances or
 9  drugs; or
10         (b)  Administered or prescribed by a health care
11  practitioner to a patient or resident receiving care from a
12  hospital, nursing home, assisted living facility, home health
13  agency, hospice, or intermediate care facility for the
14  developmentally disabled which is licensed in this state.
15         (5)  The data required under this section includes:
16         (a)  The patient's name.
17         (b)  The patient's address.
18         (c)  The national drug code number of the substance
19  dispensed.
20         (d)  The date that the substance is dispensed.
21         (e)  The quantity of substance dispensed.
22         (f)  The dispenser's National Association of Board's of
23  Pharmacy (NABP) number.
24         (g)  The prescribing practitioner's United States Drug
25  Enforcement Administration Number.
26         (6)  The information must be reported within 30 days
27  after the date the controlled substance or drug is dispensed.
28         (7)  A dispenser must transmit the information required
29  by this section in an electronic format approved by rule of
30  the Board of Pharmacy after consultation with the advisory
31  council and the Bureau of Pharmacy Services of the Department
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    CS for SB 28-E                                 First Engrossed
 1  of Health unless a specific waiver is granted to that
 2  dispenser by the Bureau of Pharmacy Services. The information
 3  transmitted may be maintained by any department receiving it
 4  for up to 12 months. However, any department receiving such
 5  information may maintain it longer than 12 months if the
 6  information is pertinent to an ongoing investigation arising
 7  under this act. Notwithstanding section 119.041, Florida
 8  Statutes, the information transmitted under this section for
 9  each prescription dispensed must be purged from the electronic
10  monitoring system within 2 years after the date of the
11  prescription. For purposes of this subsection, a refill of a
12  prescription is a new prescription.
13         (8)  The Bureau of Pharmacy Services of the Department
14  of Health shall establish a 17-member prescription-monitoring
15  advisory council to assist it in identifying drugs of abuse to
16  be recommended to the Secretary of Health and annually to the
17  Legislature for inclusion in the monitoring system and in
18  implementing the system.
19         (a)  The Governor shall appoint members to serve on the
20  advisory council. The members of the council shall include the
21  Secretary of Health or his or her designee, who shall serve as
22  the chairperson; the Attorney General or his or her designee;
23  the executive director of the Department of Law Enforcement or
24  his or her designee; the director of the Office of Drug
25  Control within the Executive Office of Governor or his or her
26  designee; a physician who is licensed in this state under
27  chapter 458, Florida Statutes, who is recommended by the
28  Florida Medical Association; a physician who is licensed in
29  this state under chapter 458 or chapter 459, Florida Statutes,
30  who is recommended by the Florida Academy of Pain Medicine; a
31  physician who is licensed in this state under chapter 459,
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    CS for SB 28-E                                 First Engrossed
 1  Florida Statutes, who is recommended by the Florida
 2  Osteopathic Medical Association; a physician who is licensed
 3  in this state under chapter 458 or chapter 459, Florida
 4  Statutes, who is recommended by the Florida Academy of Family
 5  Physicians; a podiatric physician who is licensed in this
 6  state under chapter 461, Florida Statutes, who is recommended
 7  by the Florida Podiatric Medical Association; a pharmacist who
 8  is licensed in this state under chapter 465, Florida Statutes,
 9  and who is recommended by the Florida Society of Health-System
10  Pharmacists; a pharmacist who is licensed in this state under
11  chapter 465, Florida Statutes, who is recommended by the
12  Florida Pharmacy Association; a pharmacist who is licensed in
13  this state under chapter 465, Florida Statutes, who is
14  recommended by the Florida Retail Federation; a pharmacist who
15  is licensed in this state under chapter 465, Florida Statutes,
16  who is recommended by the National Community Pharmacy
17  Association; a dentist who is licensed in this state under
18  chapter 466, Florida Statutes, who is recommended by the
19  Florida Dental Association; a veterinarian who is licensed in
20  this state under chapter 474, Florida Statutes, who is
21  recommended by the Florida Veterinary Medical Association; a
22  designee of the Florida Chapter of the National Association of
23  Drug Diversion Investigators who has expertise in the
24  investigation of drug-diversion cases; and a prosecutor who
25  has expertise in the criminal prosecution of drug-diversion
26  cases. At least one physician licensed under chapter 458 or
27  chapter 459, Florida Statutes, must specialize in or have
28  expertise in psychiatry, addiction, and substance abuse. At
29  least one physician licensed under chapter 458 or chapter 459,
30  Florida Statutes, must specialize in or have expertise in
31  hospice care and geriatrics.
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    CS for SB 28-E                                 First Engrossed
 1         (b)  The advisory council members shall meet no more
 2  often than quarterly at the call of the chairperson and shall
 3  serve without compensation. However, such members may receive
 4  reimbursement, as provided in section 112.061, Florida
 5  Statutes, for per diem and travel expenses incurred in the
 6  performance of their official duties.
 7         (c)  The Bureau of Pharmacy Services of the Department
 8  of Health shall provide staff and other administrative
 9  assistance that is reasonably necessary to assist the advisory
10  council in carrying out its responsibilities.
11         (9)  The Bureau of Pharmacy Services of the Department
12  of Health shall use the electronic system established under
13  this section for the purpose of identifying licensees and
14  patients who engage in fraudulent or illegal practices
15  relating to the use or prescribing of controlled substances.
16  Cases may be referred to the appropriate licensing board or to
17  an appropriate law enforcement agency for investigation if a
18  physician or dentist licensed under chapter 458, chapter 459,
19  chapter 461, or chapter 466 and an attorney for the state
20  determine that reasonable cause exists to believe that the
21  patient or licensee has engaged in fraudulent or illegal
22  activity. If the licensee holds a license under chapter 458,
23  chapter 459, chapter 461, or chapter 466, the consulting
24  physician or dentist must hold a license under the same
25  chapter as the licensee.
26         (10)  The Bureau of Pharmacy Services of the Department
27  of Health shall use the electronic monitoring system
28  established under this section to identify licensed health
29  care practitioners who may be involved, knowingly or
30  unknowingly, in the unauthorized prescribing, dispensing, or
31  receipt of controlled substances or drugs of abuse, whether by
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    CS for SB 28-E                                 First Engrossed
 1  means of prescription counterfeiting, fraud, forgery,
 2  over-prescribing, or any other method. The Bureau of Pharmacy
 3  Services shall immediately refer any case of possible
 4  unauthorized conduct identified through the electronic
 5  monitoring system to the appropriate licensing board, if the
 6  facts support a disciplinary complaint, or to an appropriate
 7  law enforcement agency. The Bureau of Pharmacy Services may
 8  provide information contained in the electronic monitoring
 9  system to a licensed health care practitioner for the purpose
10  of providing diagnostic or treatment services to an individual
11  patient or consumer under the practitioner's care.
12         (11)  Funds from the Medical Quality Assurance Trust
13  Fund may not be used to establish, use, or maintain the
14  electronic monitoring system.
15         (12)  The Bureau of Pharmacy Services of the Department
16  of Health shall adopt rules pursuant to section 120.536(1) and
17  section 120.574, Florida Statutes, necessary to administer
18  this section.
19         Section 6.  Subsections (1) and (9) of section 456.033,
20  Florida Statutes, are amended to read:
21         456.033  Requirement for instruction for certain
22  licensees on HIV and AIDS.--
23         (1)  The appropriate board shall require each person
24  licensed or certified under chapter 457; chapter 458; chapter
25  459; chapter 460; chapter 461; chapter 463; part I of chapter
26  464; chapter 465; chapter 466; part II, part III, part V, or
27  part X of chapter 468; or chapter 486 to complete a continuing
28  educational course, approved by the board, on human
29  immunodeficiency virus and acquired immune deficiency syndrome
30  as part of biennial relicensure or recertification. The course
31  shall consist of education on the modes of transmission,
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 1  infection control procedures, clinical management, and
 2  prevention of human immunodeficiency virus and acquired immune
 3  deficiency syndrome. Such course shall include information on
 4  current Florida law on acquired immune deficiency syndrome and
 5  its impact on testing, confidentiality of test results,
 6  treatment of patients, and any protocols and procedures
 7  applicable to human immunodeficiency virus counseling and
 8  testing, reporting, the offering of HIV testing to pregnant
 9  women, and partner notification issues pursuant to ss. 381.004
10  and 384.25.
11         (9)(a)  In lieu of completing a course as required in
12  subsection (1), the licensee may complete a course in
13  end-of-life care and palliative health care, so long as the
14  licensee completed an approved AIDS/HIV course in the
15  immediately preceding biennium.
16         (b)  In lieu of completing a course as required by
17  subsection (1), a person licensed under chapter 466 who has
18  completed an approved AIDS/HIV course in the immediately
19  preceding 2 years may complete a course approved by the Board
20  of Dentistry.
21         Section 7.  Paragraph (d) of subsection (2) of section
22  456.072, Florida Statutes, is amended to read:
23         456.072  Grounds for discipline; penalties;
24  enforcement.--
25         (2)  When the board, or the department when there is no
26  board, finds any person guilty of the grounds set forth in
27  subsection (1) or of any grounds set forth in the applicable
28  practice act, including conduct constituting a substantial
29  violation of subsection (1) or a violation of the applicable
30  practice act which occurred prior to obtaining a license, it
31  
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    CS for SB 28-E                                 First Engrossed
 1  may enter an order imposing one or more of the following
 2  penalties:
 3         (d)  Imposition of an administrative fine not to exceed
 4  $25,000 $10,000 for each count or separate offense. If the
 5  violation is for fraud or making a false or fraudulent
 6  representation, the board, or the department if there is no
 7  board, must impose a fine of $10,000 per count or offense.
 8  
 9  In determining what action is appropriate, the board, or
10  department when there is no board, must first consider what
11  sanctions are necessary to protect the public or to compensate
12  the patient. Only after those sanctions have been imposed may
13  the disciplining authority consider and include in the order
14  requirements designed to rehabilitate the practitioner. All
15  costs associated with compliance with orders issued under this
16  subsection are the obligation of the practitioner.
17         Section 8.  For the purpose of incorporating the
18  amendment to section 456.072, Florida Statutes, in a reference
19  thereto, subsection (2) of section 456.082, Florida Statutes,
20  is reenacted to read:
21         456.082  Disclosure of confidential information.--
22         (2)  Any person who willfully violates any provision of
23  this section is guilty of a misdemeanor of the first degree,
24  punishable as provided in s. 775.082 or s. 775.083, and may be
25  subject to discipline pursuant to s. 456.072, and, if
26  applicable, shall be removed from office, employment, or the
27  contractual relationship.
28         Section 9.  For the purpose of incorporating the
29  amendment to section 456.072, Florida Statutes, in references
30  thereto, subsections (1) and (2) of section 457.109, Florida
31  Statutes, are reenacted to read:
                                  17
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    CS for SB 28-E                                 First Engrossed
 1         457.109  Disciplinary actions; grounds; action by the
 2  board.--
 3         (1)  The following acts constitute grounds for denial
 4  of a license or disciplinary action, as specified in s.
 5  456.072(2):
 6         (a)  Attempting to obtain, obtaining, or renewing a
 7  license to practice acupuncture by bribery, by fraudulent
 8  misrepresentations, or through an error of the department.
 9         (b)  Having a license to practice acupuncture revoked,
10  suspended, or otherwise acted against, including the denial of
11  licensure, by the licensing authority of another state,
12  territory, or country.
13         (c)  Being convicted or found guilty, regardless of
14  adjudication, in any jurisdiction of a crime which directly
15  relates to the practice of acupuncture or to the ability to
16  practice acupuncture.  Any plea of nolo contendere shall be
17  considered a conviction for purposes of this chapter.
18         (d)  False, deceptive, or misleading advertising or
19  advertising which claims that acupuncture is useful in curing
20  any disease.
21         (e)  Advertising, practicing, or attempting to practice
22  under a name other than one's own.
23         (f)  Failing to report to the department any person who
24  the licensee knows is in violation of this chapter or of the
25  rules of the department.
26         (g)  Aiding, assisting, procuring, employing, or
27  advising any unlicensed person to practice acupuncture
28  contrary to this chapter or to a rule of the department.
29         (h)  Failing to perform any statutory or legal
30  obligation placed upon a licensed acupuncturist.
31  
                                  18
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    CS for SB 28-E                                 First Engrossed
 1         (i)  Making or filing a report which the licensee knows
 2  to be false, intentionally or negligently failing to file a
 3  report or record required by state or federal law, willfully
 4  impeding or obstructing such filing or inducing another person
 5  to do so. Such reports or records shall include only those
 6  which are signed in the capacity as a licensed acupuncturist.
 7         (j)  Exercising influence within a
 8  patient-acupuncturist relationship for purposes of engaging a
 9  patient in sexual activity. A patient shall be presumed to be
10  incapable of giving free, full, and informed consent to sexual
11  activity with his or her acupuncturist.
12         (k)  Making deceptive, untrue, or fraudulent
13  representations in the practice of acupuncture or employing a
14  trick or scheme in the practice of acupuncture when such
15  scheme or trick fails to conform to the generally prevailing
16  standards of treatment in the community.
17         (l)  Soliciting patients, either personally or through
18  an agent, through the use of fraud, intimidation, undue
19  influence, or a form of overreaching or vexatious conduct. A
20  solicitation is any communication which directly or implicitly
21  requests an immediate oral response from the recipient.
22         (m)  Failing to keep written medical records justifying
23  the course of treatment of the patient.
24         (n)  Exercising influence on the patient to exploit the
25  patient for the financial gain of the licensee or of a third
26  party.
27         (o)  Being unable to practice acupuncture with
28  reasonable skill and safety to patients by reason of illness
29  or use of alcohol, drugs, narcotics, chemicals, or any other
30  type of material or as a result of any mental or physical
31  condition. In enforcing this paragraph, upon a finding of the
                                  19
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    CS for SB 28-E                                 First Engrossed
 1  secretary or the secretary's designee that probable cause
 2  exists to believe that the licensee is unable to serve as an
 3  acupuncturist due to the reasons stated in this paragraph, the
 4  department shall have the authority to issue an order to
 5  compel the licensee to submit to a mental or physical
 6  examination by a physician designated by the department. If
 7  the licensee refuses to comply with such order, the
 8  department's order directing such examination may be enforced
 9  by filing a petition for enforcement in the circuit court
10  where the licensee resides or serves as an acupuncturist. The
11  licensee against whom the petition is filed shall not be named
12  or identified by initials in any public court record or
13  document, and the proceedings shall be closed to the public.
14  The department shall be entitled to the summary procedure
15  provided in s. 51.011. An acupuncturist affected under this
16  paragraph shall at reasonable intervals be afforded an
17  opportunity to demonstrate that he or she can resume the
18  competent practice of acupuncture with reasonable skill and
19  safety to patients. In any proceeding under this paragraph,
20  neither the record of proceedings nor the orders entered by
21  the department shall be used against an acupuncturist in any
22  other proceeding.
23         (p)  Gross or repeated malpractice or the failure to
24  practice acupuncture with that level of care, skill, and
25  treatment which is recognized by a reasonably prudent similar
26  acupuncturist as being acceptable under similar conditions and
27  circumstances.
28         (q)  Practicing or offering to practice beyond the
29  scope permitted by law or accepting and performing
30  professional responsibilities which the licensee knows or has
31  reason to know that he or she is not competent to perform.
                                  20
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    CS for SB 28-E                                 First Engrossed
 1         (r)  Delegating professional responsibilities to a
 2  person when the licensee delegating such responsibilities
 3  knows or has reason to know that such person is not qualified
 4  by training, experience, or licensure to perform them.
 5         (s)  Violating a lawful order of the board previously
 6  entered in a disciplinary hearing or failing to comply with a
 7  lawfully issued subpoena of the department.
 8         (t)  Conspiring with another to commit an act, or
 9  committing an act, which would tend to coerce, intimidate, or
10  preclude another licensee from lawfully advertising his or her
11  services.
12         (u)  Fraud or deceit or gross negligence, incompetence,
13  or misconduct in the operation of a course of study.
14         (v)  Failing to comply with state, county, or municipal
15  regulations or reporting requirements relating to public
16  health and the control of contagious and infectious diseases.
17         (w)  Failing to comply with any rule of the board
18  relating to health and safety, including, but not limited to,
19  the sterilization of needles and equipment and the disposal of
20  potentially infectious materials.
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 10.  For the purpose of incorporating the
30  amendment to section 456.072, Florida Statutes, in references
31  
                                  21
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    CS for SB 28-E                                 First Engrossed
 1  thereto, subsections (1) and (2) of section 458.331, Florida
 2  Statutes, are reenacted to read:
 3         458.331  Grounds for disciplinary action; action by the
 4  board and department.--
 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)  Attempting to obtain, obtaining, or renewing a
 9  license to practice medicine by bribery, by fraudulent
10  misrepresentations, or through an error of the department or
11  the board.
12         (b)  Having a license or the authority to practice
13  medicine revoked, suspended, or otherwise acted against,
14  including the denial of licensure, by the licensing authority
15  of any jurisdiction, including its agencies or subdivisions.
16  The licensing authority's acceptance of a physician's
17  relinquishment of a license, stipulation, consent order, or
18  other settlement, offered in response to or in anticipation of
19  the filing of administrative charges against the physician's
20  license, shall be construed as action against the physician's
21  license.
22         (c)  Being convicted or found guilty of, or entering a
23  plea of nolo contendere to, regardless of adjudication, a
24  crime in any jurisdiction which directly relates to the
25  practice of medicine or to the ability to practice medicine.
26         (d)  False, deceptive, or misleading advertising.
27         (e)  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 or the board. A treatment provider
30  approved pursuant to s. 456.076 shall provide the department
31  
                                  22
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    CS for SB 28-E                                 First Engrossed
 1  or consultant with information in accordance with the
 2  requirements of s. 456.076(3), (4), (5), and (6).
 3         (f)  Aiding, assisting, procuring, or advising any
 4  unlicensed person to practice medicine contrary to this
 5  chapter or to a rule of the department or the board.
 6         (g)  Failing to perform any statutory or legal
 7  obligation placed upon a licensed physician.
 8         (h)  Making or filing a report which the licensee knows
 9  to be false, intentionally or negligently failing to file a
10  report or record required by state or federal law, willfully
11  impeding or obstructing such filing or inducing another person
12  to do so.  Such reports or records shall include only those
13  which are signed in the capacity as a licensed physician.
14         (i)  Paying or receiving any commission, bonus,
15  kickback, or rebate, or engaging in any split-fee arrangement
16  in any form whatsoever with a physician, organization, agency,
17  or person, either directly or indirectly, for patients
18  referred to providers of health care goods and services,
19  including, but not limited to, hospitals, nursing homes,
20  clinical laboratories, ambulatory surgical centers, or
21  pharmacies. The provisions of this paragraph shall not be
22  construed to prevent a physician from receiving a fee for
23  professional consultation services.
24         (j)  Exercising influence within a patient-physician
25  relationship for purposes of engaging a patient in sexual
26  activity. A patient shall be presumed to be incapable of
27  giving free, full, and informed consent to sexual activity
28  with his or her physician.
29         (k)  Making deceptive, untrue, or fraudulent
30  representations in or related to the practice of medicine or
31  employing a trick or scheme in the practice of medicine.
                                  23
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    CS for SB 28-E                                 First Engrossed
 1         (l)  Soliciting patients, either personally or through
 2  an agent, through the use of fraud, intimidation, undue
 3  influence, or a form of overreaching or vexatious conduct. A
 4  solicitation is any communication which directly or implicitly
 5  requests an immediate oral response from the recipient.
 6         (m)  Failing to keep legible, as defined by department
 7  rule in consultation with the board, medical records that
 8  identify the licensed physician or the physician extender and
 9  supervising physician by name and professional title who is or
10  are responsible for rendering, ordering, supervising, or
11  billing for each diagnostic or treatment procedure and that
12  justify the course of treatment of the patient, including, but
13  not limited to, patient histories; examination results; test
14  results; records of drugs prescribed, dispensed, or
15  administered; and reports of consultations and
16  hospitalizations.
17         (n)  Exercising influence on the patient or client in
18  such a manner as to exploit the patient or client for
19  financial gain of the licensee or of a third party, which
20  shall include, but not be limited to, the promoting or selling
21  of services, goods, appliances, or drugs.
22         (o)  Promoting or advertising on any prescription form
23  of a community pharmacy unless the form shall also state "This
24  prescription may be filled at any pharmacy of your choice."
25         (p)  Performing professional services which have not
26  been duly authorized by the patient or client, or his or her
27  legal representative, except as provided in s. 743.064, s.
28  766.103, or s. 768.13.
29         (q)  Prescribing, dispensing, administering, mixing, or
30  otherwise preparing a legend drug, including any controlled
31  substance, other than in the course of the physician's
                                  24
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    CS for SB 28-E                                 First Engrossed
 1  professional practice.  For the purposes of this paragraph, it
 2  shall be legally presumed that prescribing, dispensing,
 3  administering, mixing, or otherwise preparing legend drugs,
 4  including all controlled substances, inappropriately or in
 5  excessive or inappropriate quantities is not in the best
 6  interest of the patient and is not in the course of the
 7  physician's professional practice, without regard to his or
 8  her intent.
 9         (r)  Prescribing, dispensing, or administering any
10  medicinal drug appearing on any schedule set forth in chapter
11  893 by the physician to himself or herself, except one
12  prescribed, dispensed, or administered to the physician by
13  another practitioner authorized to prescribe, dispense, or
14  administer medicinal drugs.
15         (s)  Being unable to practice medicine with reasonable
16  skill and safety to patients by reason of illness or use of
17  alcohol, drugs, narcotics, chemicals, or any other type of
18  material or as a result of any mental or physical condition.
19  In enforcing this paragraph, the department shall have, upon a
20  finding of the secretary or the secretary's designee that
21  probable cause exists to believe that the licensee is unable
22  to practice medicine because of the reasons stated in this
23  paragraph, the authority to issue an order to compel a
24  licensee to submit to a mental or physical examination by
25  physicians designated by the department. If the licensee
26  refuses to comply with such order, the department's order
27  directing such examination may be enforced by filing a
28  petition for enforcement in the circuit court where the
29  licensee resides or does business. The licensee against whom
30  the petition is filed may not be named or identified by
31  initials in any public court records or documents, and the
                                  25
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    CS for SB 28-E                                 First Engrossed
 1  proceedings shall be closed to the public.  The department
 2  shall be entitled to the summary procedure provided in s.
 3  51.011. A licensee or certificateholder affected under this
 4  paragraph shall at reasonable intervals be afforded an
 5  opportunity to demonstrate that he or she can resume the
 6  competent practice of medicine with reasonable skill and
 7  safety to patients.
 8         (t)  Gross or repeated malpractice or the failure to
 9  practice medicine with that level of care, skill, and
10  treatment which is recognized by a reasonably prudent similar
11  physician as being acceptable under similar conditions and
12  circumstances.  The board shall give great weight to the
13  provisions of s. 766.102 when enforcing this paragraph.  As
14  used in this paragraph, "repeated malpractice" includes, but
15  is not limited to, three or more claims for medical
16  malpractice within the previous 5-year period resulting in
17  indemnities being paid in excess of $25,000 each to the
18  claimant in a judgment or settlement and which incidents
19  involved negligent conduct by the physician. As used in this
20  paragraph, "gross malpractice" or "the failure to practice
21  medicine with that level of care, skill, and treatment which
22  is recognized by a reasonably prudent similar physician as
23  being acceptable under similar conditions and circumstances,"
24  shall not be construed so as to require more than one
25  instance, event, or act.  Nothing in this paragraph shall be
26  construed to require that a physician be incompetent to
27  practice medicine in order to be disciplined pursuant to this
28  paragraph.
29         (u)  Performing any procedure or prescribing any
30  therapy which, by the prevailing standards of medical practice
31  in the community, would constitute experimentation on a human
                                  26
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    CS for SB 28-E                                 First Engrossed
 1  subject, without first obtaining full, informed, and written
 2  consent.
 3         (v)  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. The
 7  board may establish by rule standards of practice and
 8  standards of care for particular practice settings, including,
 9  but not limited to, education and training, equipment and
10  supplies, medications including anesthetics, assistance of and
11  delegation to other personnel, transfer agreements,
12  sterilization, records, performance of complex or multiple
13  procedures, informed consent, and policy and procedure
14  manuals.
15         (w)  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 qualified
18  by training, experience, or licensure to perform them.
19         (x)  Violating a lawful order of the board or
20  department previously entered in a disciplinary hearing or
21  failing to comply with a lawfully issued subpoena of the
22  department.
23         (y)  Conspiring with another licensee or with any other
24  person to commit an act, or committing an act, which would
25  tend to coerce, intimidate, or preclude another licensee from
26  lawfully advertising his or her services.
27         (z)  Procuring, or aiding or abetting in the procuring
28  of, an unlawful termination of pregnancy.
29         (aa)  Presigning blank prescription forms.
30         (bb)  Prescribing any medicinal drug appearing on
31  Schedule II in chapter 893 by the physician for office use.
                                  27
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    CS for SB 28-E                                 First Engrossed
 1         (cc)  Prescribing, ordering, dispensing, administering,
 2  supplying, selling, or giving any drug which is a Schedule II
 3  amphetamine or a Schedule II sympathomimetic amine drug or any
 4  compound thereof, pursuant to chapter 893, to or for any
 5  person except for:
 6         1.  The treatment of narcolepsy; hyperkinesis;
 7  behavioral syndrome characterized by the developmentally
 8  inappropriate symptoms of moderate to severe distractability,
 9  short attention span, hyperactivity, emotional lability, and
10  impulsivity; or drug-induced brain dysfunction;
11         2.  The differential diagnostic psychiatric evaluation
12  of depression or the treatment of depression shown to be
13  refractory to other therapeutic modalities; or
14         3.  The clinical investigation of the effects of such
15  drugs or compounds when an investigative protocol therefor is
16  submitted to, reviewed, and approved by the board before such
17  investigation is begun.
18         (dd)  Failing to supervise adequately the activities of
19  those physician assistants, paramedics, emergency medical
20  technicians, or advanced registered nurse practitioners acting
21  under the supervision of the physician.
22         (ee)  Prescribing, ordering, dispensing, administering,
23  supplying, selling, or giving growth hormones, testosterone or
24  its analogs, human chorionic gonadotropin (HCG), or other
25  hormones for the purpose of muscle building or to enhance
26  athletic performance. For the purposes of this subsection, the
27  term "muscle building" does not include the treatment of
28  injured muscle. A prescription written for the drug products
29  listed above may be dispensed by the pharmacist with the
30  presumption that the prescription is for legitimate medical
31  use.
                                  28
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    CS for SB 28-E                                 First Engrossed
 1         (ff)  Prescribing, ordering, dispensing, administering,
 2  supplying, selling, or giving amygdalin (laetrile) to any
 3  person.
 4         (gg)  Misrepresenting or concealing a material fact at
 5  any time during any phase of a licensing or disciplinary
 6  process or procedure.
 7         (hh)  Improperly interfering with an investigation or
 8  with any disciplinary proceeding.
 9         (ii)  Failing to report to the department any licensee
10  under this chapter or under chapter 459 who the physician or
11  physician assistant knows has violated the grounds for
12  disciplinary action set out in the law under which that person
13  is licensed and who provides health care services in a
14  facility licensed under chapter 395, or a health maintenance
15  organization certificated under part I of chapter 641, in
16  which the physician or physician assistant also provides
17  services.
18         (jj)  Being found by any court in this state to have
19  provided corroborating written medical expert opinion attached
20  to any statutorily required notice of claim or intent or to
21  any statutorily required response rejecting a claim, without
22  reasonable investigation.
23         (kk)  Failing to report to the board, in writing,
24  within 30 days if action as defined in paragraph (b) has been
25  taken against one's license to practice medicine in another
26  state, territory, or country.
27         (ll)  Advertising or holding oneself out as a
28  board-certified specialist, if not qualified under s.
29  458.3312, in violation of this chapter.
30         (mm)  Failing to comply with the requirements of ss.
31  381.026 and 381.0261 to provide patients with information
                                  29
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    CS for SB 28-E                                 First Engrossed
 1  about their patient rights and how to file a patient
 2  complaint.
 3         (nn)  Violating any provision of this chapter or
 4  chapter 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). In determining what action is appropriate, the
11  board must first consider what sanctions are necessary to
12  protect the public or to compensate the patient. Only after
13  those sanctions have been imposed may the disciplining
14  authority consider and include in the order requirements
15  designed to rehabilitate the physician. All costs associated
16  with compliance with orders issued under this subsection are
17  the obligation of the physician.
18         Section 11.  For the purpose of incorporating the
19  amendment to section 456.072, Florida Statutes, in a reference
20  thereto, paragraph (g) of subsection (7) of section 458.347,
21  Florida Statutes, is reenacted to read:
22         458.347  Physician assistants.--
23         (7)  PHYSICIAN ASSISTANT LICENSURE.--
24         (g)  The Board of Medicine may impose any of the
25  penalties authorized under ss. 456.072 and 458.331(2) upon a
26  physician assistant if the physician assistant or the
27  supervising physician has been found guilty of or is being
28  investigated for any act that constitutes a violation of this
29  chapter or chapter 456.
30         Section 12.  For the purpose of incorporating the
31  amendment to section 456.072, Florida Statutes, in references
                                  30
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    CS for SB 28-E                                 First Engrossed
 1  thereto, subsections (1) and (2) of section 459.015, Florida
 2  Statutes, are reenacted to read:
 3         459.015  Grounds for disciplinary action; action by the
 4  board and department.--
 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)  Attempting to obtain, obtaining, or renewing a
 9  license to practice osteopathic medicine or a certificate
10  issued under this chapter by bribery, by fraudulent
11  misrepresentations, or through an error of the department or
12  the board.
13         (b)  Having a license or the authority to practice
14  osteopathic medicine revoked, suspended, or otherwise acted
15  against, including the denial of licensure, by the licensing
16  authority of any jurisdiction, including its agencies or
17  subdivisions.  The licensing authority's acceptance of a
18  physician's relinquishment of license, stipulation, consent
19  order, or other settlement offered in response to or in
20  anticipation of the filing of administrative charges against
21  the physician shall be construed as action against the
22  physician's license.
23         (c)  Being convicted or found guilty, regardless of
24  adjudication, of a crime in any jurisdiction which directly
25  relates to the practice of osteopathic medicine or to the
26  ability to practice osteopathic medicine.  A plea of nolo
27  contendere shall create a rebuttable presumption of guilt to
28  the underlying criminal charges.
29         (d)  False, deceptive, or misleading advertising.
30         (e)  Failing to report to the department or the
31  department's impaired professional consultant any person who
                                  31
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    CS for SB 28-E                                 First Engrossed
 1  the licensee or certificateholder knows is in violation of
 2  this chapter or of the rules of the department or the board.
 3  A treatment provider, approved pursuant to s. 456.076, shall
 4  provide the department or consultant with information in
 5  accordance with the requirements of s. 456.076(3), (4), (5),
 6  and (6).
 7         (f)  Aiding, assisting, procuring, or advising any
 8  unlicensed person to practice osteopathic medicine contrary to
 9  this 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 osteopathic physician.
12         (h)  Giving false testimony in the course of any legal
13  or administrative proceedings relating to the practice of
14  medicine or the delivery of health care services.
15         (i)  Making or filing a report which the licensee knows
16  to be false, intentionally or negligently failing to file a
17  report or record required by state or federal law, willfully
18  impeding or obstructing such filing, or inducing another
19  person to do so. Such reports or records shall include only
20  those which are signed in the capacity as a licensed
21  osteopathic physician.
22         (j)  Paying or receiving any commission, bonus,
23  kickback, or rebate, or engaging in any split-fee arrangement
24  in any form whatsoever with a physician, organization, agency,
25  person, partnership, firm, corporation, or other business
26  entity, for patients referred to providers of health care
27  goods and services, including, but not limited to, hospitals,
28  nursing homes, clinical laboratories, ambulatory surgical
29  centers, or pharmacies.  The provisions of this paragraph
30  shall not be construed to prevent an osteopathic physician
31  from receiving a fee for professional consultation services.
                                  32
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    CS for SB 28-E                                 First Engrossed
 1         (k)  Refusing to provide health care based on a
 2  patient's participation in pending or past litigation or
 3  participation in any disciplinary action conducted pursuant to
 4  this chapter, unless such litigation or disciplinary action
 5  directly involves the osteopathic physician requested to
 6  provide services.
 7         (l)  Exercising influence within a patient-physician
 8  relationship for purposes of engaging a patient in sexual
 9  activity. A patient shall be presumed to be incapable of
10  giving free, full, and informed consent to sexual activity
11  with his or her physician.
12         (m)  Making deceptive, untrue, or fraudulent
13  representations in or related to the practice of osteopathic
14  medicine or employing a trick or scheme in the practice of
15  osteopathic medicine.
16         (n)  Soliciting patients, either personally or through
17  an agent, through the use of fraud, intimidation, undue
18  influence, or forms of overreaching or vexatious conduct.  A
19  solicitation is any communication which directly or implicitly
20  requests an immediate oral response from the recipient.
21         (o)  Failing to keep legible, as defined by department
22  rule in consultation with the board, medical records that
23  identify the licensed osteopathic physician or the osteopathic
24  physician extender and supervising osteopathic physician by
25  name and professional title who is or are responsible for
26  rendering, ordering, supervising, or billing for each
27  diagnostic or treatment procedure and that justify the course
28  of treatment of the patient, including, but not limited to,
29  patient histories; examination results; test results; records
30  of drugs prescribed, dispensed, or administered; and reports
31  of consultations and hospitalizations.
                                  33
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    CS for SB 28-E                                 First Engrossed
 1         (p)  Fraudulently altering or destroying records
 2  relating to patient care or treatment, including, but not
 3  limited to, patient histories, examination results, and test
 4  results.
 5         (q)  Exercising influence on the patient or client in
 6  such a manner as to exploit the patient or client for
 7  financial gain of the licensee or of a third party which shall
 8  include, but not be limited to, the promotion or sale of
 9  services, goods, appliances, or drugs.
10         (r)  Promoting or advertising on any prescription form
11  of a community pharmacy, unless the form shall also state
12  "This prescription may be filled at any pharmacy of your
13  choice."
14         (s)  Performing professional services which have not
15  been duly authorized by the patient or client or his or her
16  legal representative except as provided in s. 743.064, s.
17  766.103, or s. 768.13.
18         (t)  Prescribing, dispensing, administering, supplying,
19  selling, giving, mixing, or otherwise preparing a legend drug,
20  including all controlled substances, other than in the course
21  of the osteopathic physician's professional practice.  For the
22  purposes of this paragraph, it shall be legally presumed that
23  prescribing, dispensing, administering, supplying, selling,
24  giving, mixing, or otherwise preparing legend drugs, including
25  all controlled substances, inappropriately or in excessive or
26  inappropriate quantities is not in the best interest of the
27  patient and is not in the course of the osteopathic
28  physician's professional practice, without regard to his or
29  her intent.
30         (u)  Prescribing or dispensing any medicinal drug
31  appearing on any schedule set forth in chapter 893 by the
                                  34
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    CS for SB 28-E                                 First Engrossed
 1  osteopathic physician for himself or herself or administering
 2  any such drug by the osteopathic physician to himself or
 3  herself unless such drug is prescribed for the osteopathic
 4  physician by another practitioner authorized to prescribe
 5  medicinal drugs.
 6         (v)  Prescribing, ordering, dispensing, administering,
 7  supplying, selling, or giving amygdalin (laetrile) to any
 8  person.
 9         (w)  Being unable to practice osteopathic medicine with
10  reasonable skill and safety to patients by reason of illness
11  or use of alcohol, drugs, narcotics, chemicals, or any other
12  type of material or as a result of any mental or physical
13  condition.  In enforcing this paragraph, the department shall,
14  upon a finding of the secretary or the secretary's designee
15  that probable cause exists to believe that the licensee is
16  unable to practice medicine because of the reasons stated in
17  this paragraph, have the authority to issue an order to compel
18  a licensee to submit to a mental or physical examination by
19  physicians designated by the department.  If the licensee
20  refuses to comply with such order, the department's order
21  directing such examination may be enforced by filing a
22  petition for enforcement in the circuit court where the
23  licensee resides or does business.  The licensee against whom
24  the petition is filed shall not be named or identified by
25  initials in any public court records or documents, and the
26  proceedings shall be closed to the public.  The department
27  shall be entitled to the summary procedure provided in s.
28  51.011.  A licensee or certificateholder affected under this
29  paragraph shall at reasonable intervals be afforded an
30  opportunity to demonstrate that he or she can resume the
31  
                                  35
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    CS for SB 28-E                                 First Engrossed
 1  competent practice of medicine with reasonable skill and
 2  safety to patients.
 3         (x)  Gross or repeated malpractice or the failure to
 4  practice osteopathic medicine with that level of care, skill,
 5  and treatment which is recognized by a reasonably prudent
 6  similar osteopathic physician as being acceptable under
 7  similar conditions and circumstances. The board shall give
 8  great weight to the provisions of s. 766.102 when enforcing
 9  this paragraph. As used in this paragraph, "repeated
10  malpractice" includes, but is not limited to, three or more
11  claims for medical malpractice within the previous 5-year
12  period resulting in indemnities being paid in excess of
13  $25,000 each to the claimant in a judgment or settlement and
14  which incidents involved negligent conduct by the osteopathic
15  physician. As used in this paragraph, "gross malpractice" or
16  "the failure to practice osteopathic medicine with that level
17  of care, skill, and treatment which is recognized by a
18  reasonably prudent similar osteopathic physician as being
19  acceptable under similar conditions and circumstances" shall
20  not be construed so as to require more than one instance,
21  event, or act. Nothing in this paragraph shall be construed to
22  require that an osteopathic physician be incompetent to
23  practice osteopathic medicine in order to be disciplined
24  pursuant to this paragraph.  A recommended order by an
25  administrative law judge or a final order of the board finding
26  a violation under this paragraph shall specify whether the
27  licensee was found to have committed "gross malpractice,"
28  "repeated malpractice," or "failure to practice osteopathic
29  medicine with that level of care, skill, and treatment which
30  is recognized as being acceptable under similar conditions and
31  
                                  36
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    CS for SB 28-E                                 First Engrossed
 1  circumstances," or any combination thereof, and any
 2  publication by the board shall so specify.
 3         (y)  Performing any procedure or prescribing any
 4  therapy which, by the prevailing standards of medical practice
 5  in the community, would constitute experimentation on human
 6  subjects, without first obtaining full, informed, and written
 7  consent.
 8         (z)  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         (aa)  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         (bb)  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 board
27  or department.
28         (cc)  Conspiring with another licensee or with any
29  other person to commit an act, or committing an act, which
30  would tend to coerce, intimidate, or preclude another licensee
31  from lawfully advertising his or her services.
                                  37
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    CS for SB 28-E                                 First Engrossed
 1         (dd)  Procuring, or aiding or abetting in the procuring
 2  of, an unlawful termination of pregnancy.
 3         (ee)  Presigning blank prescription forms.
 4         (ff)  Prescribing any medicinal drug appearing on
 5  Schedule II in chapter 893 by the osteopathic physician for
 6  office use.
 7         (gg)  Prescribing, ordering, dispensing, administering,
 8  supplying, selling, or giving any drug which is a Schedule II
 9  amphetamine or Schedule II sympathomimetic amine drug or any
10  compound thereof, pursuant to chapter 893, to or for any
11  person except for:
12         1.  The treatment of narcolepsy; hyperkinesis;
13  behavioral syndrome characterized by the developmentally
14  inappropriate symptoms of moderate to severe distractability,
15  short attention span, hyperactivity, emotional lability, and
16  impulsivity; or drug-induced brain dysfunction;
17         2.  The differential diagnostic psychiatric evaluation
18  of depression or the treatment of depression shown to be
19  refractory to other therapeutic modalities; or
20         3.  The clinical investigation of the effects of such
21  drugs or compounds when an investigative protocol therefor is
22  submitted to, reviewed, and approved by the board before such
23  investigation is begun.
24         (hh)  Failing to supervise adequately the activities of
25  those physician assistants, paramedics, emergency medical
26  technicians, advanced registered nurse practitioners, or other
27  persons acting under the supervision of the osteopathic
28  physician.
29         (ii)  Prescribing, ordering, dispensing, administering,
30  supplying, selling, or giving growth hormones, testosterone or
31  its analogs, human chorionic gonadotropin (HCG), or other
                                  38
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    CS for SB 28-E                                 First Engrossed
 1  hormones for the purpose of muscle building or to enhance
 2  athletic performance. For the purposes of this subsection, the
 3  term "muscle building" does not include the treatment of
 4  injured muscle.  A prescription written for the drug products
 5  listed above may be dispensed by the pharmacist with the
 6  presumption that the prescription is for legitimate medical
 7  use.
 8         (jj)  Misrepresenting or concealing a material fact at
 9  any time during any phase of a licensing or disciplinary
10  process or procedure.
11         (kk)  Improperly interfering with an investigation or
12  with any disciplinary proceeding.
13         (ll)  Failing to report to the department any licensee
14  under chapter 458 or under this chapter who the osteopathic
15  physician or physician assistant knows has violated the
16  grounds for disciplinary action set out in the law under which
17  that person is licensed and who provides health care services
18  in a facility licensed under chapter 395, or a health
19  maintenance organization certificated under part I of chapter
20  641, in which the osteopathic physician or physician assistant
21  also provides services.
22         (mm)  Being found by any court in this state to have
23  provided corroborating written medical expert opinion attached
24  to any statutorily required notice of claim or intent or to
25  any statutorily required response rejecting a claim, without
26  reasonable investigation.
27         (nn)  Advertising or holding oneself out as a
28  board-certified specialist in violation of this chapter.
29         (oo)  Failing to comply with the requirements of ss.
30  381.026 and 381.0261 to provide patients with information
31  
                                  39
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    CS for SB 28-E                                 First Engrossed
 1  about their patient rights and how to file a patient
 2  complaint.
 3         (pp)  Violating any provision of this chapter or
 4  chapter 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). In determining what action is appropriate, the
11  board must first consider what sanctions are necessary to
12  protect the public or to compensate the patient.  Only after
13  those sanctions have been imposed may the disciplining
14  authority consider and include in the order requirements
15  designed to rehabilitate the physician.  All costs associated
16  with compliance with orders issued under this subsection are
17  the obligation of the physician.
18         Section 13.  For the purpose of incorporating the
19  amendment to section 456.072, Florida Statutes, in a reference
20  thereto, paragraph (f) of subsection (7) of section 459.022,
21  Florida Statutes, is reenacted to read:
22         459.022  Physician assistants.--
23         (7)  PHYSICIAN ASSISTANT LICENSURE.--
24         (f)  The Board of Osteopathic Medicine may impose any
25  of the penalties authorized under ss. 456.072 and 459.015(2)
26  upon a physician assistant if the physician assistant or the
27  supervising physician has been found guilty of or is being
28  investigated for any act that constitutes a violation of this
29  chapter or chapter 456.
30         Section 14.  For the purpose of incorporating the
31  amendment to section 456.072, Florida Statutes, in references
                                  40
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    CS for SB 28-E                                 First Engrossed
 1  thereto, subsections (1) and (2) of section 460.413, Florida
 2  Statutes, are reenacted to read:
 3         460.413  Grounds for disciplinary action; action by
 4  board or department.--
 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)  Attempting to obtain, obtaining, or renewing a
 9  license to practice chiropractic medicine by bribery, by
10  fraudulent misrepresentations, or through an error of the
11  department or the board.
12         (b)  Having a license to practice chiropractic medicine
13  revoked, suspended, or otherwise acted against, including the
14  denial of licensure, by the licensing authority of another
15  state, territory, or country.
16         (c)  Being convicted or found guilty, regardless of
17  adjudication, of a crime in any jurisdiction which directly
18  relates to the practice of chiropractic medicine or to the
19  ability to practice chiropractic medicine. Any plea of nolo
20  contendere shall be considered a conviction for purposes of
21  this chapter.
22         (d)  False, deceptive, or misleading advertising.
23         (e)  Causing to be advertised, by any means whatsoever,
24  any advertisement which does not contain an assertion or
25  statement which would identify herself or himself as a
26  chiropractic physician or identify such chiropractic clinic or
27  related institution in which she or he practices or in which
28  she or he is owner, in whole or in part, as a chiropractic
29  institution.
30         (f)  Advertising, practicing, or attempting to practice
31  under a name other than one's own.
                                  41
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    CS for SB 28-E                                 First Engrossed
 1         (g)  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.
 4         (h)  Aiding, assisting, procuring, or advising any
 5  unlicensed person to practice chiropractic medicine contrary
 6  to this chapter or to a rule of the department or the board.
 7         (i)  Failing to perform any statutory or legal
 8  obligation placed upon a licensed chiropractic physician.
 9         (j)  Making or filing a report which the licensee knows
10  to be false, intentionally or negligently failing to file a
11  report or record required by state or federal law, willfully
12  impeding or obstructing such filing or inducing another person
13  to do so.  Such reports or records shall include only those
14  which are signed in the capacity of a licensed chiropractic
15  physician.
16         (k)  Making misleading, deceptive, untrue, or
17  fraudulent representations in the practice of chiropractic
18  medicine or employing a trick or scheme in the practice of
19  chiropractic medicine when such trick or scheme fails to
20  conform to the generally prevailing standards of treatment in
21  the chiropractic medical community.
22         (l)  Soliciting patients either personally or through
23  an agent, unless such solicitation falls into a category of
24  solicitations approved by rule of the board.
25         (m)  Failing to keep legibly written chiropractic
26  medical records that identify clearly by name and credentials
27  the licensed chiropractic physician rendering, ordering,
28  supervising, or billing for each examination or treatment
29  procedure and that justify the course of treatment of the
30  patient, including, but not limited to, patient histories,
31  examination results, test results, X rays, and diagnosis of a
                                  42
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    CS for SB 28-E                                 First Engrossed
 1  disease, condition, or injury.  X rays need not be retained
 2  for more than 4 years.
 3         (n)  Exercising influence on the patient or client in
 4  such a manner as to exploit the patient or client for
 5  financial gain of the licensee or of a third party which shall
 6  include, but not be limited to, the promotion or sale of
 7  services, goods or appliances, or drugs.
 8         (o)  Performing professional services which have not
 9  been duly authorized by the patient or client or her or his
10  legal representative except as provided in ss. 743.064,
11  766.103, and 768.13.
12         (p)  Prescribing, dispensing, or administering any
13  medicinal drug except as authorized by s. 460.403(9)(c)2.,
14  performing any surgery, or practicing obstetrics.
15         (q)  Being unable to practice chiropractic medicine
16  with reasonable skill and safety to patients by reason of
17  illness or use of alcohol, drugs, narcotics, chemicals, or any
18  other type of material or as a result of any mental or
19  physical condition.  In enforcing this paragraph, upon a
20  finding by the secretary of the department, or his or her
21  designee, or the probable cause panel of the board that
22  probable cause exists to believe that the licensee is unable
23  to practice the profession because of reasons stated in this
24  paragraph, the department shall have the authority to compel a
25  licensee to submit to a mental or physical examination by a
26  physician designated by the department. If the licensee
27  refuses to comply with the department's order, the department
28  may file a petition for enforcement in the circuit court of
29  the circuit in which the licensee resides or does business.
30  The department shall be entitled to the summary procedure
31  provided in s. 51.011.  The record of proceedings to obtain a
                                  43
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    CS for SB 28-E                                 First Engrossed
 1  compelled mental or physical examination shall not be used
 2  against a licensee in any other proceedings.  A chiropractic
 3  physician affected under this paragraph shall at reasonable
 4  intervals be afforded an opportunity to demonstrate that she
 5  or he can resume the competent practice of chiropractic
 6  medicine with reasonable skill and safety to patients.
 7         (r)  Gross or repeated malpractice or the failure to
 8  practice chiropractic medicine at a level of care, skill, and
 9  treatment which is recognized by a reasonably prudent
10  chiropractic physician as being acceptable under similar
11  conditions and circumstances. The board shall give great
12  weight to the standards for malpractice in s. 766.102 in
13  interpreting this provision. A recommended order by an
14  administrative law judge, or a final order of the board
15  finding a violation under this section shall specify whether
16  the licensee was found to have committed "gross malpractice,"
17  "repeated malpractice," or "failure to practice chiropractic
18  medicine with that level of care, skill, and treatment which
19  is recognized as being acceptable under similar conditions and
20  circumstances" or any combination thereof, and any publication
21  by the board shall so specify.
22         (s)  Performing any procedure or prescribing any
23  therapy which, by the prevailing standards of chiropractic
24  medical practice in the community, would constitute
25  experimentation on human subjects, without first obtaining
26  full, informed, and written consent.
27         (t)  Practicing or offering to practice beyond the
28  scope permitted by law or accepting and performing
29  professional responsibilities which the licensee knows or has
30  reason to know that she or he is not competent to perform.
31  
                                  44
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    CS for SB 28-E                                 First Engrossed
 1         (u)  Delegating professional responsibilities to a
 2  person when the licensee delegating such responsibilities
 3  knows or has reason to know that such person is not qualified
 4  by training, experience, or licensure to perform them.
 5         (v)  Violating a lawful order of the board or
 6  department previously entered in a disciplinary hearing or
 7  failing to comply with a lawfully issued subpoena of the
 8  department.
 9         (w)  Conspiring with another licensee or with any other
10  person to commit an act, or committing an act, which would
11  tend to coerce, intimidate, or preclude another licensee from
12  lawfully advertising her or his services.
13         (x)  Submitting to any third-party payor a claim for a
14  service or treatment which was not actually provided to a
15  patient.
16         (y)  Failing to preserve identity of funds and property
17  of a patient. As provided by rule of the board, money or other
18  property entrusted to a chiropractic physician for a specific
19  purpose, including advances for costs and expenses of
20  examination or treatment, is to be held in trust and must be
21  applied only to that purpose.  Money and other property of
22  patients coming into the hands of a chiropractic physician are
23  not subject to counterclaim or setoff for chiropractic
24  physician's fees, and a refusal to account for and deliver
25  over such money and property upon demand shall be deemed a
26  conversion. This is not to preclude the retention of money or
27  other property upon which the chiropractic physician has a
28  valid lien for services or to preclude the payment of agreed
29  fees from the proceeds of transactions for examinations or
30  treatments.  Controversies as to the amount of the fees are
31  not grounds for disciplinary proceedings unless the amount
                                  45
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    CS for SB 28-E                                 First Engrossed
 1  demanded is clearly excessive or extortionate, or the demand
 2  is fraudulent. All funds of patients paid to a chiropractic
 3  physician, other than advances for costs and expenses, shall
 4  be deposited in one or more identifiable bank accounts
 5  maintained in the state in which the chiropractic physician's
 6  office is situated, and no funds belonging to the chiropractic
 7  physician shall be deposited therein except as follows:
 8         1.  Funds reasonably sufficient to pay bank charges may
 9  be deposited therein.
10         2.  Funds belonging in part to a patient and in part
11  presently or potentially to the physician must be deposited
12  therein, but the portion belonging to the physician may be
13  withdrawn when due unless the right of the physician to
14  receive it is disputed by the patient, in which event the
15  disputed portion shall not be withdrawn until the dispute is
16  finally resolved.
17  
18  Every chiropractic physician shall maintain complete records
19  of all funds, securities, and other properties of a patient
20  coming into the possession of the physician and render
21  appropriate accounts to the patient regarding them. In
22  addition, every chiropractic physician shall promptly pay or
23  deliver to the patient, as requested by the patient, the
24  funds, securities, or other properties in the possession of
25  the physician which the patient is entitled to receive.
26         (z)  Offering to accept or accepting payment for
27  services rendered by assignment from any third-party payor
28  after offering to accept or accepting whatever the third-party
29  payor covers as payment in full, if the effect of the offering
30  or acceptance is to eliminate or give the impression of
31  
                                  46
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    CS for SB 28-E                                 First Engrossed
 1  eliminating the need for payment by an insured of any required
 2  deductions applicable in the policy of the insured.
 3         (aa)  Failing to provide, upon request of the insured,
 4  a copy of a claim submitted to any third-party payor for
 5  service or treatment of the insured.
 6         (bb)  Advertising a fee or charge for a service or
 7  treatment which is different from the fee or charge the
 8  licensee submits to third-party payors for that service or
 9  treatment.
10         (cc)  Advertising any reduced or discounted fees for
11  services or treatments, or advertising any free services or
12  treatments, without prominently stating in the advertisement
13  the usual fee of the licensee for the service or treatment
14  which is the subject of the discount, rebate, or free
15  offering.
16         (dd)  Using acupuncture without being certified
17  pursuant to s. 460.403(9)(f).
18         (ee)  Failing to report to the department any licensee
19  under chapter 458 or under chapter 459 who the chiropractic
20  physician or chiropractic physician's assistant knows has
21  violated the grounds for disciplinary action set out in the
22  law under which that person is licensed and who provides
23  health care services in a facility licensed under chapter 395,
24  or a health maintenance organization certificated under part I
25  of chapter 641, in which the chiropractic physician or
26  chiropractic physician's assistant also provides services.
27         (ff)  Violating any provision of this chapter or
28  chapter 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
                                  47
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    CS for SB 28-E                                 First Engrossed
 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). In determining what action is appropriate, the
 4  board must first consider what sanctions are necessary to
 5  protect the public or to compensate the patient. Only after
 6  those sanctions have been imposed may the disciplining
 7  authority consider and include in the order requirements
 8  designed to rehabilitate the chiropractic physician. All costs
 9  associated with compliance with orders issued under this
10  subsection are the obligation of the chiropractic physician.
11         Section 15.  For the purpose of incorporating the
12  amendment to section 456.072, Florida Statutes, in references
13  thereto, subsections (1) and (2) of section 462.14, Florida
14  Statutes, are reenacted to read:
15         462.14  Grounds for disciplinary action; action by the
16  department.--
17         (1)  The following acts constitute grounds for denial
18  of a license or disciplinary action, as specified in s.
19  456.072(2):
20         (a)  Attempting to obtain, obtaining, or renewing a
21  license to practice naturopathic medicine by bribery, by
22  fraudulent misrepresentation, or through an error of the
23  department.
24         (b)  Having a license to practice naturopathic medicine
25  revoked, suspended, or otherwise acted against, including the
26  denial of licensure, by the licensing authority of another
27  state, territory, or country.
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 naturopathic medicine or to the
31  ability to practice naturopathic medicine. Any plea of nolo
                                  48
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    CS for SB 28-E                                 First Engrossed
 1  contendere shall be considered a conviction for purposes of
 2  this chapter.
 3         (d)  False, deceptive, or misleading advertising.
 4         (e)  Advertising, practicing, or attempting to practice
 5  under a name other than one's own.
 6         (f)  Failing to report to the department any person who
 7  the licensee knows is in violation of this chapter or of the
 8  rules of the department.
 9         (g)  Aiding, assisting, procuring, or advising any
10  unlicensed person to practice naturopathic medicine contrary
11  to this chapter or to a rule of the department.
12         (h)  Failing to perform any statutory or legal
13  obligation placed upon a licensed naturopathic physician.
14         (i)  Making or filing a report which the licensee knows
15  to be false, intentionally or negligently failing to file a
16  report or record required by state or federal law, willfully
17  impeding or obstructing such filing or inducing another person
18  to do so.  Such reports or records shall include only those
19  which are signed in the capacity as a licensed naturopathic
20  physician.
21         (j)  Paying or receiving any commission, bonus,
22  kickback, or rebate, or engaging in any split-fee arrangement
23  in any form whatsoever with a physician, organization, agency,
24  or person, either directly or indirectly, for patients
25  referred to providers of health care goods and services,
26  including, but not limited to, hospitals, nursing homes,
27  clinical laboratories, ambulatory surgical centers, or
28  pharmacies.  The provisions of this paragraph shall not be
29  construed to prevent a naturopathic physician from receiving a
30  fee for professional consultation services.
31  
                                  49
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    CS for SB 28-E                                 First Engrossed
 1         (k)  Exercising influence within a patient-physician
 2  relationship for purposes of engaging a patient in sexual
 3  activity. A patient shall be presumed to be incapable of
 4  giving free, full, and informed consent to sexual activity
 5  with her or his physician.
 6         (l)  Making deceptive, untrue, or fraudulent
 7  representations in the practice of naturopathic medicine or
 8  employing a trick or scheme in the practice of naturopathic
 9  medicine when such scheme or trick fails to conform to the
10  generally prevailing standards of treatment in the medical
11  community.
12         (m)  Soliciting patients, either personally or through
13  an agent, through the use of fraud, intimidation, undue
14  influence, or a form of overreaching or vexatious conduct.  A
15  "solicitation" is any communication which directly or
16  implicitly requests an immediate oral response from the
17  recipient.
18         (n)  Failing to keep written medical records justifying
19  the course of treatment of the patient, including, but not
20  limited to, patient histories, examination results, test
21  results, X rays, and records of the prescribing, dispensing
22  and administering of drugs.
23         (o)  Exercising influence on the patient or client in
24  such a manner as to exploit the patient or client for the
25  financial gain of the licensee or of a third party, which
26  shall include, but not be limited to, the promoting or selling
27  of services, goods, appliances, or drugs and the promoting or
28  advertising on any prescription form of a community pharmacy
29  unless the form also states "This prescription may be filled
30  at any pharmacy of your choice."
31  
                                  50
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    CS for SB 28-E                                 First Engrossed
 1         (p)  Performing professional services which have not
 2  been duly authorized by the patient or client, or her or his
 3  legal representative, except as provided in s. 743.064, s.
 4  766.103, or s. 768.13.
 5         (q)  Prescribing, dispensing, administering, mixing, or
 6  otherwise preparing a legend drug, including any controlled
 7  substance, other than in the course of the naturopathic
 8  physician's professional practice.  For the purposes of this
 9  paragraph, it shall be legally presumed that prescribing,
10  dispensing, administering, mixing, or otherwise preparing
11  legend drugs, including all controlled substances,
12  inappropriately or in excessive or inappropriate quantities is
13  not in the best interest of the patient and is not in the
14  course of the naturopathic physician's professional practice,
15  without regard to her or his intent.
16         (r)  Prescribing, dispensing, or administering any
17  medicinal drug appearing on any schedule set forth in chapter
18  893 by the naturopathic physician to herself or himself,
19  except one prescribed, dispensed, or administered to the
20  naturopathic physician by another practitioner authorized to
21  prescribe, dispense, or administer medicinal drugs.
22         (s)  Being unable to practice naturopathic medicine
23  with reasonable skill and safety to patients by reason of
24  illness or use of alcohol, drugs, narcotics, chemicals, or any
25  other type of material or as a result of any mental or
26  physical condition.  In enforcing this paragraph, the
27  department shall have, upon probable cause, authority to
28  compel a naturopathic physician to submit to a mental or
29  physical examination by physicians designated by the
30  department.  The failure of a naturopathic physician to submit
31  to such an examination when so directed shall constitute an
                                  51
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    CS for SB 28-E                                 First Engrossed
 1  admission of the allegations against her or him upon which a
 2  default and final order may be entered without the taking of
 3  testimony or presentation of evidence, unless the failure was
 4  due to circumstances beyond the naturopathic physician's
 5  control.  A naturopathic physician affected under this
 6  paragraph shall at reasonable intervals be afforded an
 7  opportunity to demonstrate that she or he can resume the
 8  competent practice of naturopathic medicine with reasonable
 9  skill and safety to patients. In any proceeding under this
10  paragraph, neither the record of proceedings nor the orders
11  entered by the department may be used against a naturopathic
12  physician in any other proceeding.
13         (t)  Gross or repeated malpractice or the failure to
14  practice naturopathic medicine with that level of care, skill,
15  and treatment which is recognized by a reasonably prudent
16  similar physician as being acceptable under similar conditions
17  and circumstances.  The department shall give great weight to
18  the provisions of s. 766.102 when enforcing this paragraph.
19         (u)  Performing any procedure or prescribing any
20  therapy which, by the prevailing standards of medical practice
21  in the community, constitutes experimentation on a human
22  subject, without first obtaining full, informed, and written
23  consent.
24         (v)  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         (w)  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.
                                  52
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    CS for SB 28-E                                 First Engrossed
 1         (x)  Violating a lawful order of the department
 2  previously entered in a disciplinary hearing or failing to
 3  comply with a lawfully issued subpoena of the department.
 4         (y)  Conspiring with another licensee or with any other
 5  person to commit an act, or committing an act, which would
 6  tend to coerce, intimidate, or preclude another licensee from
 7  lawfully advertising her or his services.
 8         (z)  Procuring, or aiding or abetting in the procuring
 9  of, an unlawful termination of pregnancy.
10         (aa)  Presigning blank prescription forms.
11         (bb)  Prescribing by the naturopathic physician for
12  office use any medicinal drug appearing on Schedule II in
13  chapter 893.
14         (cc)  Prescribing, ordering, dispensing, administering,
15  supplying, selling, or giving any drug which is an amphetamine
16  or sympathomimetic amine drug, or a compound designated
17  pursuant to chapter 893 as a Schedule II controlled substance
18  to or for any person except for:
19         1.  The treatment of narcolepsy; hyperkinesis;
20  behavioral syndrome in children characterized by the
21  developmentally inappropriate symptoms of moderate to severe
22  distractability, short attention span, hyperactivity,
23  emotional lability, and impulsivity; or drug-induced brain
24  dysfunction.
25         2.  The differential diagnostic psychiatric evaluation
26  of depression or the treatment of depression shown to be
27  refractory to other therapeutic modalities.
28         3.  The clinical investigation of the effects of such
29  drugs or compounds when an investigative protocol therefor is
30  submitted to, reviewed, and approved by the department before
31  such investigation is begun.
                                  53
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    CS for SB 28-E                                 First Engrossed
 1         (dd)  Prescribing, ordering, dispensing, administering,
 2  supplying, selling, or giving growth hormones, testosterone or
 3  its analogs, human chorionic gonadotropin (HCG), or other
 4  hormones for the purpose of muscle building or to enhance
 5  athletic performance. For the purposes of this subsection, the
 6  term "muscle building" does not include the treatment of
 7  injured muscle.  A prescription written for the drug products
 8  listed above may be dispensed by the pharmacist with the
 9  presumption that the prescription is for legitimate medical
10  use.
11         (ee)  Violating any provision of this chapter or
12  chapter 456, or any rules adopted pursuant thereto.
13         (2)  The department may enter an order denying
14  licensure or imposing any of the penalties in s. 456.072(2)
15  against any applicant for licensure or licensee who is found
16  guilty of violating any provision of subsection (1) of this
17  section or who is found guilty of violating any provision of
18  s. 456.072(1).
19         Section 16.  For the purpose of incorporating the
20  amendment to section 456.072, Florida Statutes, in references
21  thereto, subsections (1) and (2) of section 463.016, Florida
22  Statutes, are reenacted to read:
23         463.016  Grounds for disciplinary action; action by the
24  board.--
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)  Procuring or attempting to procure a license to
29  practice optometry by bribery, by fraudulent
30  misrepresentations, or through an error of the department or
31  board.
                                  54
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    CS for SB 28-E                                 First Engrossed
 1         (b)  Procuring or attempting to procure a license for
 2  any other person by making or causing to be made any false
 3  representation.
 4         (c)  Having a license to practice optometry revoked,
 5  suspended, or otherwise acted against, including the denial of
 6  licensure, by the licensing authority of another jurisdiction.
 7         (d)  Being convicted or found guilty, regardless of
 8  adjudication, of a crime in any jurisdiction which directly
 9  relates to the practice of optometry or to the ability to
10  practice optometry.  Any plea of nolo contendere shall be
11  considered a conviction for the purposes of this chapter.
12         (e)  Making or filing a report or record which the
13  licensee knows to be false, intentionally or negligently
14  failing to file a report or record required by state or
15  federal law, willfully impeding or obstructing such filing, or
16  inducing another person to do so.  Such reports or records
17  shall include only those which are signed by the licensee in
18  her or his capacity as a licensed practitioner.
19         (f)  Advertising goods or services in a manner which is
20  fraudulent, false, deceptive, or misleading in form or
21  content.
22         (g)  Fraud or deceit, negligence or incompetency, or
23  misconduct in the practice of optometry.
24         (h)  A violation or repeated violations of provisions
25  of this chapter, or of chapter 456, and any rules promulgated
26  pursuant thereto.
27         (i)  Conspiring with another licensee or with any
28  person to commit an act, or committing an act, which would
29  coerce, intimidate, or preclude another licensee from lawfully
30  advertising her or his services.
31  
                                  55
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    CS for SB 28-E                                 First Engrossed
 1         (j)  Willfully submitting to any third-party payor a
 2  claim for services which were not provided to a patient.
 3         (k)  Failing to keep written optometric records about
 4  the examinations, treatments, and prescriptions for patients.
 5         (l)  Willfully failing to report any person who the
 6  licensee knows is in violation of this chapter or of rules of
 7  the department or the board.
 8         (m)  Gross or repeated malpractice.
 9         (n)  Practicing with a revoked, suspended, inactive, or
10  delinquent license.
11         (o)  Being unable to practice optometry with reasonable
12  skill and safety to patients by reason of illness or use of
13  alcohol, drugs, narcotics, chemicals, or any other type of
14  material or as a result of any mental or physical condition.
15  A licensed practitioner affected under this paragraph shall at
16  reasonable intervals be afforded an opportunity to demonstrate
17  that she or he can resume the competent practice of optometry
18  with reasonable skill and safety to patients.
19         (p)  Having been disciplined by a regulatory agency in
20  another state for any offense that would constitute a
21  violation of Florida laws or rules regulating optometry.
22         (q)  Violating any provision of s. 463.014 or s.
23  463.015.
24         (r)  Violating any 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 board
27  or department.
28         (s)  Practicing or offering to practice beyond the
29  scope permitted by law or accepting and performing
30  professional responsibilities which the licensed practitioner
31  
                                  56
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    CS for SB 28-E                                 First Engrossed
 1  knows or has reason to know she or he is not competent to
 2  perform.
 3         (t)  Violating any provision of this chapter or chapter
 4  456, or any rules adopted pursuant thereto.
 5         (2)  The department may enter an order imposing any of
 6  the penalties in s. 456.072(2) against any licensee who is
 7  found guilty of violating any provision of subsection (1) of
 8  this section or who is found guilty of violating any provision
 9  of s. 456.072(1).
10         Section 17.  For the purpose of incorporating the
11  amendment to section 456.072, Florida Statutes, in references
12  thereto, subsections (1) and (2) of section 464.018, Florida
13  Statutes, are reenacted to read:
14         464.018  Disciplinary actions.--
15         (1)  The following acts constitute grounds for denial
16  of a license or disciplinary action, as specified in s.
17  456.072(2):
18         (a)  Procuring, attempting to procure, or renewing a
19  license to practice nursing by bribery, by knowing
20  misrepresentations, or through an error of the department or
21  the board.
22         (b)  Having a license to practice nursing revoked,
23  suspended, or otherwise acted against, including the denial of
24  licensure, by the licensing authority of another state,
25  territory, or country.
26         (c)  Being convicted or found guilty of, or entering a
27  plea of nolo contendere to, regardless of adjudication, a
28  crime in any jurisdiction which directly relates to the
29  practice of nursing or to the ability to practice nursing.
30         (d)  Being found guilty, regardless of adjudication, of
31  any of the following offenses:
                                  57
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    CS for SB 28-E                                 First Engrossed
 1         1.  A forcible felony as defined in chapter 776.
 2         2.  A violation of chapter 812, relating to theft,
 3  robbery, and related crimes.
 4         3.  A violation of chapter 817, relating to fraudulent
 5  practices.
 6         4.  A violation of chapter 800, relating to lewdness
 7  and indecent exposure.
 8         5.  A violation of chapter 784, relating to assault,
 9  battery, and culpable negligence.
10         6.  A violation of chapter 827, relating to child
11  abuse.
12         7.  A violation of chapter 415, relating to protection
13  from abuse, neglect, and exploitation.
14         8.  A violation of chapter 39, relating to child abuse,
15  abandonment, and neglect.
16         (e)  Having been found guilty of, regardless of
17  adjudication, or entered a plea of nolo contendere or guilty
18  to, any offense prohibited under s. 435.03 or under any
19  similar statute of another jurisdiction; or having committed
20  an act which constitutes domestic violence as defined in s.
21  741.28.
22         (f)  Making or filing a false report or record, which
23  the licensee knows to be false, intentionally or negligently
24  failing to file a report or record required by state or
25  federal law, willfully impeding or obstructing such filing or
26  inducing another person to do so.  Such reports or records
27  shall include only those which are signed in the nurse's
28  capacity as a licensed nurse.
29         (g)  False, misleading, or deceptive advertising.
30         (h)  Unprofessional conduct, which shall include, but
31  not be limited to, any departure from, or the failure to
                                  58
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    CS for SB 28-E                                 First Engrossed
 1  conform to, the minimal standards of acceptable and prevailing
 2  nursing practice, in which case actual injury need not be
 3  established.
 4         (i)  Engaging or attempting to engage in the
 5  possession, sale, or distribution of controlled substances as
 6  set forth in chapter 893, for any other than legitimate
 7  purposes authorized by this part.
 8         (j)  Being unable to practice nursing with reasonable
 9  skill and safety to patients by reason of illness or use of
10  alcohol, drugs, narcotics, or chemicals or any other type of
11  material or as a result of any mental or physical condition.
12  In enforcing this paragraph, the department shall have, upon a
13  finding of the secretary or the secretary's designee that
14  probable cause exists to believe that the licensee is unable
15  to practice nursing because of the reasons stated in this
16  paragraph, the authority to issue an order to compel a
17  licensee to submit to a mental or physical examination by
18  physicians designated by the department.  If the licensee
19  refuses to comply with such order, the department's order
20  directing such examination may be enforced by filing a
21  petition for enforcement in the circuit court where the
22  licensee resides or does business. The licensee against whom
23  the petition is filed shall not be named or identified by
24  initials in any public court records or documents, and the
25  proceedings shall be closed to the public. The department
26  shall be entitled to the summary procedure provided in s.
27  51.011. A nurse affected by the provisions of this paragraph
28  shall at reasonable intervals be afforded an opportunity to
29  demonstrate that she or he can resume the competent practice
30  of nursing with reasonable skill and safety to patients.
31  
                                  59
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    CS for SB 28-E                                 First Engrossed
 1         (k)  Failing to report to the department any person who
 2  the licensee knows is in violation of this part or of the
 3  rules of the department or the board; however, if the licensee
 4  verifies that such person is actively participating in a
 5  board-approved program for the treatment of a physical or
 6  mental condition, the licensee is required to report such
 7  person only to an impaired professionals consultant.
 8         (l)  Knowingly violating any provision of this part, a
 9  rule of the board or the department, or a lawful order of the
10  board or department previously entered in a disciplinary
11  proceeding or failing to comply with a lawfully issued
12  subpoena of the department.
13         (m)  Failing to report to the department any licensee
14  under chapter 458 or under chapter 459 who the nurse knows has
15  violated the grounds for disciplinary action set out in the
16  law under which that person is licensed and who provides
17  health care services in a facility licensed under chapter 395,
18  or a health maintenance organization certificated under part I
19  of chapter 641, in which the nurse also provides services.
20         (n)  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 18.  For the purpose of incorporating the
29  amendment to section 456.072, Florida Statutes, in references
30  thereto, subsections (1) and (2) of section 465.016, Florida
31  Statutes, are reenacted to read:
                                  60
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    CS for SB 28-E                                 First Engrossed
 1         465.016  Disciplinary actions.--
 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)  Obtaining a license by misrepresentation or fraud
 6  or through an error of the department or the board.
 7         (b)  Procuring or attempting to procure a license for
 8  any other person by making or causing to be made any false
 9  representation.
10         (c)  Permitting any person not licensed as a pharmacist
11  in this state or not registered as an intern in this state, or
12  permitting a registered intern who is not acting under the
13  direct and immediate personal supervision of a licensed
14  pharmacist, to fill, compound, or dispense any prescriptions
15  in a pharmacy owned and operated by such pharmacist or in a
16  pharmacy where such pharmacist is employed or on duty.
17         (d)  Being unfit or incompetent to practice pharmacy by
18  reason of:
19         1.  Habitual intoxication.
20         2.  The misuse or abuse of any medicinal drug appearing
21  in any schedule set forth in chapter 893.
22         3.  Any abnormal physical or mental condition which
23  threatens the safety of persons to whom she or he might sell
24  or dispense prescriptions, drugs, or medical supplies or for
25  whom she or he might manufacture, prepare, or package, or
26  supervise the manufacturing, preparation, or packaging of,
27  prescriptions, drugs, or medical supplies.
28         (e)  Violating chapter 499; 21 U.S.C. ss. 301-392,
29  known as the Federal Food, Drug, and Cosmetic Act; 21 U.S.C.
30  ss. 821 et seq., known as the Comprehensive Drug Abuse
31  Prevention and Control Act; or chapter 893.
                                  61
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    CS for SB 28-E                                 First Engrossed
 1         (f)  Having been convicted or found guilty, regardless
 2  of adjudication, in a court of this state or other
 3  jurisdiction, of a crime which directly relates to the ability
 4  to practice pharmacy or to the practice of pharmacy.  A plea
 5  of nolo contendere constitutes a conviction for purposes of
 6  this provision.
 7         (g)  Using in the compounding of a prescription, or
 8  furnishing upon prescription, an ingredient or article
 9  different in any manner from the ingredient or article
10  prescribed, except as authorized in s. 465.019(6) or s.
11  465.025.
12         (h)  Having been disciplined by a regulatory agency in
13  another state for any offense that would constitute a
14  violation of this chapter.
15         (i)  Compounding, dispensing, or distributing a legend
16  drug, including any controlled substance, other than in the
17  course of the professional practice of pharmacy.  For purposes
18  of this paragraph, it shall be legally presumed that the
19  compounding, dispensing, or distributing of legend drugs in
20  excessive or inappropriate quantities is not in the best
21  interests of the patient and is not in the course of the
22  professional practice of pharmacy.
23         (j)  Making or filing a report or record which the
24  licensee knows to be false, intentionally or negligently
25  failing to file a report or record required by federal or
26  state law, willfully impeding or obstructing such filing, or
27  inducing another person to do so.  Such reports or records
28  include only those which the licensee is required to make or
29  file in her or his capacity as a licensed pharmacist.
30         (k)  Failing to make prescription fee or price
31  information readily available by failing to provide such
                                  62
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    CS for SB 28-E                                 First Engrossed
 1  information upon request and upon the presentation of a
 2  prescription for pricing or dispensing.  Nothing in this
 3  section shall be construed to prohibit the quotation of price
 4  information on a prescription drug to a potential consumer by
 5  telephone.
 6         (l)  Placing in the stock of any pharmacy any part of
 7  any prescription compounded or dispensed which is returned by
 8  a patient; however, in a hospital, nursing home, correctional
 9  facility, or extended care facility in which unit-dose
10  medication is dispensed to inpatients, each dose being
11  individually sealed and the individual unit dose or unit-dose
12  system labeled with the name of the drug, dosage strength,
13  manufacturer's control number, and expiration date, if any,
14  the unused unit dose of medication may be returned to the
15  pharmacy for redispensing.  Each pharmacist shall maintain
16  appropriate records for any unused or returned medicinal
17  drugs.
18         (m)  Being unable to practice pharmacy with reasonable
19  skill and safety by reason of illness, use of drugs,
20  narcotics, chemicals, or any other type of material or as a
21  result of any mental or physical condition.  A pharmacist
22  affected under this paragraph shall at reasonable intervals be
23  afforded an opportunity to demonstrate that she or he can
24  resume the competent practice of pharmacy with reasonable
25  skill and safety to her or his customers.
26         (n)  Violating a rule of the board or department or
27  violating an order of the board or department previously
28  entered in a disciplinary hearing.
29         (o)  Failing to report to the department any licensee
30  under chapter 458 or under chapter 459 who the pharmacist
31  knows has violated the grounds for disciplinary action set out
                                  63
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    CS for SB 28-E                                 First Engrossed
 1  in the law under which that person is licensed and who
 2  provides health care services in a facility licensed under
 3  chapter 395, or a health maintenance organization certificated
 4  under part I of chapter 641, in which the pharmacist also
 5  provides services.
 6         (p)  Failing to notify the Board of Pharmacy in writing
 7  within 20 days of the commencement or cessation of the
 8  practice of the profession of pharmacy in Florida when such
 9  commencement or cessation of the practice of the profession of
10  pharmacy in Florida was a result of a pending or completed
11  disciplinary action or investigation in another jurisdiction.
12         (q)  Using or releasing a patient's records except as
13  authorized by this chapter and chapter 456.
14         (r)  Violating any provision of this chapter or chapter
15  456, or any rules adopted pursuant thereto.
16         (2)  The board may enter an order denying licensure or
17  imposing any of the penalties in s. 456.072(2) against any
18  applicant for licensure or licensee who is found guilty of
19  violating any provision of subsection (1) of this section or
20  who is found guilty of violating any provision of s.
21  456.072(1).
22         Section 19.  For the purpose of incorporating the
23  amendment to section 456.072, Florida Statutes, in references
24  thereto, subsections (1) and (2) of section 466.028, Florida
25  Statutes, are reenacted to read:
26         466.028  Grounds for disciplinary action; action by the
27  board.--
28         (1)  The following acts constitute grounds for denial
29  of a license or disciplinary action, as specified in s.
30  456.072(2):
31  
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    CS for SB 28-E                                 First Engrossed
 1         (a)  Attempting to obtain, obtaining, or renewing a
 2  license under this chapter by bribery, fraudulent
 3  misrepresentations, or through an error of the department or
 4  the board.
 5         (b)  Having a license to practice dentistry or dental
 6  hygiene revoked, suspended, or otherwise acted against,
 7  including the denial of licensure, by the licensing authority
 8  of another state, territory, or country.
 9         (c)  Being convicted or found guilty of or entering a
10  plea of nolo contendere to, regardless of adjudication, a
11  crime in any jurisdiction which relates to the practice of
12  dentistry or dental hygiene.  A plea of nolo contendere shall
13  create a rebuttable presumption of guilt to the underlying
14  criminal charges.
15         (d)  Advertising goods or services in a manner which is
16  fraudulent, false, deceptive, or misleading in form or content
17  contrary to s. 466.019 or rules of the board adopted pursuant
18  thereto.
19         (e)  Advertising, practicing, or attempting to practice
20  under a name other than one's own.
21         (f)  Failing to report to the department any person who
22  the licensee knows, or has reason to believe, is clearly in
23  violation of this chapter or of the rules of the department or
24  the board.
25         (g)  Aiding, assisting, procuring, or advising any
26  unlicensed person to practice dentistry or dental hygiene
27  contrary to this chapter or to a rule of the department or the
28  board.
29         (h)  Being employed by any corporation, organization,
30  group, or person other than a dentist or a professional
31  
                                  65
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    CS for SB 28-E                                 First Engrossed
 1  corporation or limited liability company composed of dentists
 2  to practice dentistry.
 3         (i)  Failing to perform any statutory or legal
 4  obligation placed upon a licensee.
 5         (j)  Making or filing a report which the licensee knows
 6  to be false, failing to file a report or record required by
 7  state or federal law, knowingly impeding or obstructing such
 8  filing or inducing another person to do so.  Such reports or
 9  records shall include only those which are signed in the
10  capacity as a licensee.
11         (k)  Committing any act which would constitute sexual
12  battery, as defined in chapter 794, upon a patient or
13  intentionally touching the sexual organ of a patient.
14         (l)  Making deceptive, untrue, or fraudulent
15  representations in or related to the practice of dentistry.
16         (m)  Failing to keep written dental records and medical
17  history records justifying the course of treatment of the
18  patient including, but not limited to, patient histories,
19  examination results, test results, and X rays, if taken.
20         (n)  Failing to make available to a patient or client,
21  or to her or his legal representative or to the department if
22  authorized in writing by the patient, copies of documents in
23  the possession or under control of the licensee which relate
24  to the patient or client.
25         (o)  Performing professional services which have not
26  been duly authorized by the patient or client, or her or his
27  legal representative, except as provided in ss. 766.103 and
28  768.13.
29         (p)  Prescribing, procuring, dispensing, administering,
30  mixing, or otherwise preparing a legend drug, including any
31  controlled substance, other than in the course of the
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    CS for SB 28-E                                 First Engrossed
 1  professional practice of the dentist.  For the purposes of
 2  this paragraph, it shall be legally presumed that prescribing,
 3  procuring, dispensing, administering, mixing, or otherwise
 4  preparing legend drugs, including all controlled substances,
 5  in excessive or inappropriate quantities is not in the best
 6  interest of the patient and is not in the course of the
 7  professional practice of the dentist, without regard to her or
 8  his intent.
 9         (q)  Prescribing, procuring, dispensing, or
10  administering any medicinal drug appearing on any schedule set
11  forth in chapter 893, by a dentist to herself or himself,
12  except those prescribed, dispensed, or administered to the
13  dentist by another practitioner authorized to prescribe them.
14         (r)  Prescribing, procuring, ordering, dispensing,
15  administering, supplying, selling, or giving any drug which is
16  a Schedule II amphetamine or a Schedule II sympathomimetic
17  amine drug or a compound thereof, pursuant to chapter 893, to
18  or for any person except for the clinical investigation of the
19  effects of such drugs or compounds when an investigative
20  protocol therefor is submitted to, and reviewed and approved
21  by, the board before such investigation is begun.
22         (s)  Being unable to practice her or his profession
23  with reasonable skill and safety to patients by reason of
24  illness or use of alcohol, drugs, narcotics, chemicals, or any
25  other type of material or as a result of any mental or
26  physical condition.  In enforcing this paragraph, the
27  department shall have, upon a finding of the secretary or her
28  or his designee that probable cause exists to believe that the
29  licensee is unable to practice dentistry or dental hygiene
30  because of the reasons stated in this paragraph, the authority
31  to issue an order to compel a licensee to submit to a mental
                                  67
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    CS for SB 28-E                                 First Engrossed
 1  or physical examination by physicians designated by the
 2  department.  If the licensee refuses to comply with such
 3  order, the department's order directing such examination may
 4  be enforced by filing a petition for enforcement in the
 5  circuit court where the licensee resides or does business.
 6  The licensee against whom the petition is filed shall not be
 7  named or identified by initials in any public court records or
 8  documents, and the proceedings shall be closed to the public.
 9  The department shall be entitled to the summary procedure
10  provided in s. 51.011. A licensee affected under this
11  paragraph shall at reasonable intervals be afforded an
12  opportunity to demonstrate that she or he can resume the
13  competent practice of her or his profession with reasonable
14  skill and safety to patients.
15         (t)  Fraud, deceit, or misconduct in the practice of
16  dentistry or dental hygiene.
17         (u)  Failure to provide and maintain reasonable
18  sanitary facilities and conditions.
19         (v)  Failure to provide adequate radiation safeguards.
20         (w)  Performing any procedure or prescribing any
21  therapy which, by the prevailing standards of dental practice
22  in the community, would constitute experimentation on human
23  subjects, without first obtaining full, informed, and written
24  consent.
25         (x)  Being guilty of incompetence or negligence by
26  failing to meet the minimum standards of performance in
27  diagnosis and treatment when measured against generally
28  prevailing peer performance, including, but not limited to,
29  the undertaking of diagnosis and treatment for which the
30  dentist is not qualified by training or experience or being
31  guilty of dental malpractice. For purposes of this paragraph,
                                  68
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    CS for SB 28-E                                 First Engrossed
 1  it shall be legally presumed that a dentist is not guilty of
 2  incompetence or negligence by declining to treat an individual
 3  if, in the dentist's professional judgment, the dentist or a
 4  member of her or his clinical staff is not qualified by
 5  training and experience, or the dentist's treatment facility
 6  is not clinically satisfactory or properly equipped to treat
 7  the unique characteristics and health status of the dental
 8  patient, provided the dentist refers the patient to a
 9  qualified dentist or facility for appropriate treatment.  As
10  used in this paragraph, "dental malpractice" includes, but is
11  not limited to, three or more claims within the previous
12  5-year period which resulted in indemnity being paid, or any
13  single indemnity paid in excess of $5,000 in a judgment or
14  settlement, as a result of negligent conduct on the part of
15  the dentist.
16         (y)  Practicing or offering to practice beyond the
17  scope permitted by law or accepting and performing
18  professional responsibilities which the licensee knows or has
19  reason to know that she or he is not competent to perform.
20         (z)  Delegating professional responsibilities to a
21  person who is not qualified by training, experience, or
22  licensure to perform them.
23         (aa)  The 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         (bb)  Conspiring with another licensee or with any
28  person to commit an act, or committing an act, which would
29  tend to coerce, intimidate, or preclude another licensee from
30  lawfully advertising her or his services.
31  
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    CS for SB 28-E                                 First Engrossed
 1         (cc)  Being adjudged mentally incompetent in this or
 2  any other state, the discipline for which shall last only so
 3  long as the adjudication.
 4         (dd)  Presigning blank prescription or laboratory work
 5  order forms.
 6         (ee)  Prescribing, ordering, dispensing, administering,
 7  supplying, selling, or giving growth hormones, testosterone or
 8  its analogs, human chorionic gonadotropin (HCG), or other
 9  hormones for the purpose of muscle building or to enhance
10  athletic performance. For the purposes of this subsection, the
11  term "muscle building" does not include the treatment of
12  injured muscle.  A prescription written for the drug products
13  listed above may be dispensed by the pharmacist with the
14  presumption that the prescription is for legitimate medical
15  use.
16         (ff)  Operating or causing to be operated a dental
17  office in such a manner as to result in dental treatment that
18  is below minimum acceptable standards of performance for the
19  community. This includes, but is not limited to, the use of
20  substandard materials or equipment, the imposition of time
21  limitations within which dental procedures are to be
22  performed, or the failure to maintain patient records as
23  required by this chapter.
24         (gg)  Administering anesthesia in a manner which
25  violates rules of the board adopted pursuant to s. 466.017.
26         (hh)  Failing to report to the department any licensee
27  under chapter 458 or chapter 459 who the dentist knows has
28  violated the grounds for disciplinary action set out in the
29  law under which that person is licensed and who provides
30  health care services in a facility licensed under chapter 395,
31  
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    CS for SB 28-E                                 First Engrossed
 1  or a health maintenance organization certificated under part I
 2  of chapter 641, in which the dentist also provides services.
 3         (ii)  Failing to report to the board, in writing,
 4  within 30 days if action has been taken against one's license
 5  to practice dentistry in another state, territory, or country.
 6         (jj)  Advertising specialty services in violation of
 7  this chapter.
 8         (kk)  Allowing any person other than another dentist or
 9  a professional corporation or limited liability company
10  composed of dentists to direct, control, or interfere with a
11  dentist's clinical judgment; however, this paragraph may not
12  be construed to limit a patient's right of informed consent.
13  To direct, control, or interfere with a dentist's clinical
14  judgment may not be interpreted to mean dental services
15  contractually excluded, the application of alternative
16  benefits that may be appropriate given the dentist's
17  prescribed course of treatment, or the application of
18  contractual provisions and scope of coverage determinations in
19  comparison with a dentist's prescribed treatment on behalf of
20  a covered person by an insurer, health maintenance
21  organization, or a prepaid limited health service
22  organization.
23         (ll)  Violating any provision of this chapter or
24  chapter 456, or any rules adopted pursuant thereto.
25         (2)  The board may enter an order denying licensure or
26  imposing any of the penalties in s. 456.072(2) against any
27  applicant for licensure or licensee who is found guilty of
28  violating any provision of subsection (1) of this section or
29  who is found guilty of violating any provision of s.
30  456.072(1).
31  
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    CS for SB 28-E                                 First Engrossed
 1         Section 20.  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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    CS for SB 28-E                                 First Engrossed
 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 21.  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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    CS for SB 28-E                                 First Engrossed
 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.
                                  74
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    CS for SB 28-E                                 First Engrossed
 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
                                  75
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    CS for SB 28-E                                 First Engrossed
 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  
                                  76
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    CS for SB 28-E                                 First Engrossed
 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
                                  77
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    CS for SB 28-E                                 First Engrossed
 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 22.  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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    CS for SB 28-E                                 First Engrossed
 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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    CS for SB 28-E                                 First Engrossed
 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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    CS for SB 28-E                                 First Engrossed
 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 23.  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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    CS for SB 28-E                                 First Engrossed
 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
                                  82
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    CS for SB 28-E                                 First Engrossed
 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
                                  83
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    CS for SB 28-E                                 First Engrossed
 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
                                  84
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    CS for SB 28-E                                 First Engrossed
 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
                                  85
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    CS for SB 28-E                                 First Engrossed
 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 24.  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
                                  86
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    CS for SB 28-E                                 First Engrossed
 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.
                                  87
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    CS for SB 28-E                                 First Engrossed
 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
                                  88
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    CS for SB 28-E                                 First Engrossed
 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,
                                  89
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    CS for SB 28-E                                 First Engrossed
 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 25.  For the purpose of incorporating the
30  amendment to section 456.072, Florida Statutes, in references
31  
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    CS for SB 28-E                                 First Engrossed
 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  
                                  91
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    CS for SB 28-E                                 First Engrossed
 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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    CS for SB 28-E                                 First Engrossed
 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 26.  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.--
                                  93
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    CS for SB 28-E                                 First Engrossed
 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 27.  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.--
                                  94
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    CS for SB 28-E                                 First Engrossed
 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  
                                  95
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    CS for SB 28-E                                 First Engrossed
 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 28.  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.
                                  96
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    CS for SB 28-E                                 First Engrossed
 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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    CS for SB 28-E                                 First Engrossed
 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  
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    CS for SB 28-E                                 First Engrossed
 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 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 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  
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    CS for SB 28-E                                 First Engrossed
 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.
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    CS for SB 28-E                                 First Engrossed
 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.
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    CS for SB 28-E                                 First Engrossed
 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 30.  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
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    CS for SB 28-E                                 First Engrossed
 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
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    CS for SB 28-E                                 First Engrossed
 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
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    CS for SB 28-E                                 First Engrossed
 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
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    CS for SB 28-E                                 First Engrossed
 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 31.  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.
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    CS for SB 28-E                                 First Engrossed
 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  
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    CS for SB 28-E                                 First Engrossed
 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).
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    CS for SB 28-E                                 First Engrossed
 1         Section 32.  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.
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    CS for SB 28-E                                 First Engrossed
 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.
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    CS for SB 28-E                                 First Engrossed
 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 33.  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
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    CS for SB 28-E                                 First Engrossed
 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
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    CS for SB 28-E                                 First Engrossed
 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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    CS for SB 28-E                                 First Engrossed
 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 34.  For the purpose of incorporating the
30  amendment to section 456.072, Florida Statutes, in references
31  
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    CS for SB 28-E                                 First Engrossed
 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
                                 115
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    CS for SB 28-E                                 First Engrossed
 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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    CS for SB 28-E                                 First Engrossed
 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 35.  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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    CS for SB 28-E                                 First Engrossed
 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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    CS for SB 28-E                                 First Engrossed
 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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    CS for SB 28-E                                 First Engrossed
 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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    CS for SB 28-E                                 First Engrossed
 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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    CS for SB 28-E                                 First Engrossed
 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 36.  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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    CS for SB 28-E                                 First Engrossed
 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
                                 123
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    CS for SB 28-E                                 First Engrossed
 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
                                 124
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    CS for SB 28-E                                 First Engrossed
 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
                                 125
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    CS for SB 28-E                                 First Engrossed
 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 37.  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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    CS for SB 28-E                                 First Engrossed
 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 of controlled
16  substances as set forth in section 2 of this act. An applicant
17  who has not taken a course at the time of registration shall
18  be allowed up to 6 months within which to complete this
19  requirement.
20         Section 38.  Paragraph (dd) is added to subsection (1)
21  of section 461.013, Florida Statutes, to read:
22         461.013  Grounds for disciplinary action; action by the
23  board; investigations by department.--
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         (dd)  Presigning blank prescription forms.
28         Section 39.  Paragraphs (h), (i), (j), (k), and (l) are
29  added to subsection (1) of section 893.04, Florida Statutes,
30  to read:
31         893.04  Pharmacist and practitioner.--
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    CS for SB 28-E                                 First Engrossed
 1         (1)  A pharmacist, in good faith and in the course of
 2  professional practice only, may dispense controlled substances
 3  upon a written or oral prescription of a practitioner, under
 4  the following conditions:
 5         (h)  A pharmacist may not dispense a Schedule II
 6  controlled substance; codeine, hydrocodone, dihydrocodeine,
 7  ethylmorphine, or morphine as scheduled in Schedule II and
 8  Schedule III; or a drug of abuse designated by the Secretary
 9  of Health by rule under the prescription-monitoring system to
10  any individual not personally known to the pharmacist without
11  first obtaining suitable identification and documenting, in a
12  log book kept by the pharmacist, the identity of the
13  individual obtaining the controlled substance. The log book
14  entry must contain the printed name, address, telephone number
15  if available, driver's license number or other suitable
16  identification number, and signature of the person obtaining
17  the controlled substance or drug. If the individual does not
18  have suitable identification or it is impracticable to obtain
19  such identification, the pharmacist may dispense the
20  controlled substance or drug only when the pharmacist
21  determines, in the exercise of her or his professional
22  judgment, that the order is valid and necessary for treatment.
23  In such a case, the pharmacist or his or her designee must
24  obtain the other information required under this paragraph,
25  and the pharmacist or pharmacist's designee must sign the log
26  to indicate that suitable identification was not available and
27  that the pharmacist's professional judgment was exercised
28  prior to dispensing the controlled substance or drug. The
29  Board of Pharmacy may adopt, by rule, procedures by which a
30  pharmacist must verify the validity of a prescription for a
31  Schedule II controlled substance; other drug designated by the
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    CS for SB 28-E                                 First Engrossed
 1  Secretary of Health under this section; or codeine,
 2  hydrocodone, dihydrocodeine, ethylmorphine, or morphine as
 3  scheduled in Schedule II and Schedule III, for circumstances
 4  when it is otherwise impracticable for the pharmacist or
 5  dispensing practitioner to obtain suitable identification from
 6  the patient or the patient's agent. For purposes of this
 7  section, identification is suitable only if it contains the
 8  photograph, the printed name, and the signature of the
 9  individual obtaining the Schedule II controlled substance or
10  drug of abuse under the prescription-monitoring system.
11         (i)  Any pharmacist that dispenses a Schedule II
12  controlled substance or drug subject to the requirements of
13  this section when dispensed by mail shall be exempt from the
14  requirements to obtain suitable identification.
15         (j)  All prescriptions issued for a Schedule II
16  controlled substance; codeine, hydrocodone, dihydrocodeine,
17  ethylmorphine, or morphine as scheduled in Schedule II and
18  Schedule III; or a drug of abuse under the
19  prescription-monitoring system which has been designated by
20  the Secretary of Health by rule, must include both a written
21  and numerical notation of quantity on the face of the
22  prescription.
23         (k)  A pharmacist may not dispense more than a 30-day
24  supply of a controlled substance listed in Schedule III upon
25  an oral prescription.
26         (l)  A pharmacist may not knowingly fill a prescription
27  that has been mutilated or forged for a Schedule II controlled
28  substance; codeine, hydrocodone, dihydrocodeine,
29  ethylmorphine, and morphine as scheduled in Schedule II and
30  Schedule III; or a drug of abuse under the
31  
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    CS for SB 28-E                                 First Engrossed
 1  prescription-monitoring system which has been designated by
 2  the Secretary of Health by rule.
 3         Section 40.  Each local and regional board of education
 4  shall adopt and implement policies prohibiting any school
 5  personnel from recommending the use of psychotropic drugs for
 6  any child. The provisions of this section shall not prohibit
 7  school medical staff from recommending that a child be
 8  evaluated by a medical practitioner.
 9         Section 41.  If any law that is amended by this act was
10  also amended by a law enacted at the 2002 Regular Session of
11  the Legislature, such laws shall be construed as if they had
12  been enacted at the same session of the Legislature, and full
13  effect should be given to each if that is possible.
14         Section 42.  For Fiscal Year 2002-2003, the lump sum of
15  $1,050,000 from nonrecurring General Revenue is appropriated
16  to the Department of Health for the purpose of implementing
17  the provisions of this act.
18         Section 43.  This act shall take effect July 1, 2002.
19  
20  
21  
22  
23  
24  
25  
26  
27  
28  
29  
30  
31  
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