HB 0121 2004
1	A bill to be entitled
2	An act relating to health care; providing legislative
3	findings and intent; amending s. 456.072, F.S., relating
4	to grounds for discipline, penalties, and enforcement
5	applicable to health care practitioners; providing that a
6	practitioner's failure to disclose his or her training in
7	health care advertisements and in professional
8	relationships with patients constitutes grounds for
9	disciplinary action; providing exceptions; providing
10	penalties; specifying that a reference to the section
11	constitutes a general reference under the doctrine of
12	incorporation by reference; providing an effective date.
13
14	Be It Enacted by the Legislature of the State of Florida:
15
16	Section 1. The Legislature finds that there exists a
17	compelling state interest in patients being informed of the
18	credentials of the health care practitioners who treat them and
19	in the public being protected from misleading health care
20	advertising. The Legislature further finds that the areas of
21	health care practice licensure can be extremely confusing for
22	patients and that health care practitioners can easily mislead
23	patients into believing that the practitioner is better
24	qualified than other health care practitioners simply by
25	creating a sham practice designation. Therefore, the Legislature
26	has determined that the most direct and effective manner in
27	which to protect patients from this identifiable harm is to
28	ensure that patients and the public be informed of the training
29	of health care practitioners and intends by this act to require
30	the provision of such information.
31	Section 2. Section 456.072, Florida Statutes, is amended
32	to read:
33	456.072 Grounds for discipline; penalties; enforcement.--
34	(1) The following acts shall constitute grounds for which
35	the disciplinary actions specified in subsection (2) may be
36	taken:
37	(a) Making misleading, deceptive, or fraudulent
38	representations in or related to the practice of the licensee's
39	profession.
40	(b) Intentionally violating any rule adopted by the board
41	or the department, as appropriate.
42	(c) Being convicted or found guilty of, or entering a plea
43	of guilty or nolo contendere to, regardless of adjudication, a
44	crime in any jurisdiction which relates to the practice of, or
45	the ability to practice, a licensee's profession.
46	(d) Using a Class III or a Class IV laser device or
47	product, as defined by federal regulations, without having
48	complied with the rules adopted pursuant to s. 501.122(2)
49	governing the registration of such devices.
50	(e) Failing to comply with the educational course
51	requirements for human immunodeficiency virus and acquired
52	immune deficiency syndrome.
53	(f) Having a license or the authority to practice any
54	regulated profession revoked, suspended, or otherwise acted
55	against, including the denial of licensure, by the licensing
56	authority of any jurisdiction, including its agencies or
57	subdivisions, for a violation that would constitute a violation
58	under Florida law. The licensing authority's acceptance of a
59	relinquishment of licensure, stipulation, consent order, or
60	other settlement, offered in response to or in anticipation of
61	the filing of charges against the license, shall be construed as
62	action against the license.
63	(g) Having been found liable in a civil proceeding for
64	knowingly filing a false report or complaint with the department
65	against another licensee.
66	(h) Attempting to obtain, obtaining, or renewing a license
67	to practice a profession by bribery, by fraudulent
68	misrepresentation, or through an error of the department or the
69	board.
70	(i) Except as provided in s. 465.016, failing to report to
71	the department any person who the licensee knows is in violation
72	of this chapter, the chapter regulating the alleged violator, or
73	the rules of the department or the board.
74	(j) Aiding, assisting, procuring, employing, or advising
75	any unlicensed person or entity to practice a profession
76	contrary to this chapter, the chapter regulating the profession,
77	or the rules of the department or the board.
78	(k) Failing to perform any statutory or legal obligation
79	placed upon a licensee. For purposes of this section, failing to
80	repay a student loan issued or guaranteed by the state or the
81	Federal Government in accordance with the terms of the loan or
82	failing to comply with service scholarship obligations shall be
83	considered a failure to perform a statutory or legal obligation,
84	and the minimum disciplinary action imposed shall be a
85	suspension of the license until new payment terms are agreed
86	upon or the scholarship obligation is resumed, followed by
87	probation for the duration of the student loan or remaining
88	scholarship obligation period, and a fine equal to 10 percent of
89	the defaulted loan amount. Fines collected shall be deposited
90	into the Medical Quality Assurance Trust Fund.
91	(l) Making or filing a report which the licensee knows to
92	be false, intentionally or negligently failing to file a report
93	or record required by state or federal law, or willfully
94	impeding or obstructing another person to do so. Such reports or
95	records shall include only those that are signed in the capacity
96	of a licensee.
97	(m) Making deceptive, untrue, or fraudulent
98	representations in or related to the practice of a profession or
99	employing a trick or scheme in or related to the practice of a
100	profession.
101	(n) Exercising influence on the patient or client for the
102	purpose of financial gain of the licensee or a third party.
103	(o) Practicing or offering to practice beyond the scope
104	permitted by law or accepting and performing professional
105	responsibilities the licensee knows, or has reason to know, the
106	licensee is not competent to perform.
107	(p) Delegating or contracting for the performance of
108	professional responsibilities by a person when the licensee
109	delegating or contracting for performance of such
110	responsibilities knows, or has reason to know, such person is
111	not qualified by training, experience, and authorization when
112	required to perform them.
113	(q) Violating a lawful order of the department or the
114	board, or failing to comply with a lawfully issued subpoena of
115	the department.
116	(r) Improperly interfering with an investigation or
117	inspection authorized by statute, or with any disciplinary
118	proceeding.
119	(s) Failing to comply with the educational course
120	requirements for domestic violence.
121	(t) In any advertisement for health care services, and no
122	later than at the time of the initiation of the professional
123	relationship with a patient, failing to provide the type of
124	license under which the practitioner is operating. This
125	paragraph does not apply to a practitioner while the
126	practitioner is providing services in a facility licensed under
127	chapter 395 or chapter 400.
128	(u)(t)Failing to comply with the requirements of ss.
129	381.026 and 381.0261 to provide patients with information about
130	their patient rights and how to file a patient complaint.
131	(v)(u)Engaging or attempting to engage in sexual
132	misconduct as defined and prohibited in s. 456.063(1).
133	(w)(v)Failing to comply with the requirements for
134	profiling and credentialing, including, but not limited to,
135	failing to provide initial information, failing to timely
136	provide updated information, or making misleading, untrue,
137	deceptive, or fraudulent representations on a profile,
138	credentialing, or initial or renewal licensure application.
139	(x)(w)Failing to report to the board, or the department
140	if there is no board, in writing within 30 days after the
141	licensee has been convicted or found guilty of, or entered a
142	plea of nolo contendere to, regardless of adjudication, a crime
143	in any jurisdiction. Convictions, findings, adjudications, and
144	pleas entered into prior to the enactment of this paragraph must
145	be reported in writing to the board, or department if there is
146	no board, on or before October 1, 1999.
147	(y)(x)Using information about people involved in motor
148	vehicle accidents which has been derived from accident reports
149	made by law enforcement officers or persons involved in
150	accidents pursuant to s. 316.066, or using information published
151	in a newspaper or other news publication or through a radio or
152	television broadcast that has used information gained from such
153	reports, for the purposes of commercial or any other
154	solicitation whatsoever of the people involved in such
155	accidents.
156	(z)(y)Being unable to practice with reasonable skill and
157	safety to patients by reason of illness or use of alcohol,
158	drugs, narcotics, chemicals, or any other type of material or as
159	a result of any mental or physical condition. In enforcing this
160	paragraph, the department shall have, upon a finding of the
161	secretary or the secretary's designee that probable cause exists
162	to believe that the licensee is unable to practice because of
163	the reasons stated in this paragraph, the authority to issue an
164	order to compel a licensee to submit to a mental or physical
165	examination by physicians designated by the department. If the
166	licensee refuses to comply with such order, the department's
167	order directing such examination may be enforced by filing a
168	petition for enforcement in the circuit court where the licensee
169	resides or does business. The department shall be entitled to
170	the summary procedure provided in s. 51.011. A licensee or
171	certificateholder affected under this paragraph shall at
172	reasonable intervals be afforded an opportunity to demonstrate
173	that he or she can resume the competent practice of his or her
174	profession with reasonable skill and safety to patients.
175	(aa)(z)Testing positive for any drug, as defined in s.
176	112.0455, on any confirmed preemployment or employer-ordered
177	drug screening when the practitioner does not have a lawful
178	prescription and legitimate medical reason for using such drug.
179	(bb)(aa)Performing or attempting to perform health care
180	services on the wrong patient, a wrong-site procedure, a wrong
181	procedure, or an unauthorized procedure or a procedure that is
182	medically unnecessary or otherwise unrelated to the patient's
183	diagnosis or medical condition. For the purposes of this
184	paragraph, performing or attempting to perform health care
185	services includes the preparation of the patient.
186	(cc)(bb)Leaving a foreign body in a patient, such as a
187	sponge, clamp, forceps, surgical needle, or other paraphernalia
188	commonly used in surgical, examination, or other diagnostic
189	procedures. For the purposes of this paragraph, it shall be
190	legally presumed that retention of a foreign body is not in the
191	best interest of the patient and is not within the standard of
192	care of the profession, regardless of the intent of the
193	professional.
194	(dd)(cc)Violating any provision of this chapter, the
195	applicable practice act, or any rules adopted pursuant thereto.
196	(ee)(dd)With respect to making a personal injury
197	protection claim as required by s. 627.736, intentionally
198	submitting a claim, statement, or bill that has been "upcoded"
199	as defined in s. 627.732.
200	(ff)(ee)With respect to making a personal injury
201	protection claim as required by s. 627.736, intentionally
202	submitting a claim, statement, or bill for payment of services
203	that were not rendered.
204	(2) When the board, or the department when there is no
205	board, finds any person guilty of the grounds set forth in
206	subsection (1) or of any grounds set forth in the applicable
207	practice act, including conduct constituting a substantial
208	violation of subsection (1) or a violation of the applicable
209	practice act which occurred prior to obtaining a license, it may
210	enter an order imposing one or more of the following penalties:
211	(a) Refusal to certify, or to certify with restrictions,
212	an application for a license.
213	(b) Suspension or permanent revocation of a license.
214	(c) Restriction of practice or license, including, but not
215	limited to, restricting the licensee from practicing in certain
216	settings, restricting the licensee to work only under designated
217	conditions or in certain settings, restricting the licensee from
218	performing or providing designated clinical and administrative
219	services, restricting the licensee from practicing more than a
220	designated number of hours, or any other restriction found to be
221	necessary for the protection of the public health, safety, and
222	welfare.
223	(d) Imposition of an administrative fine not to exceed
224	$10,000 for each count or separate offense. If the violation is
225	for fraud or making a false or fraudulent representation, the
226	board, or the department if there is no board, must impose a
227	fine of $10,000 per count or offense.
228	(e) Issuance of a reprimand or letter of concern.
229	(f) Placement of the licensee on probation for a period of
230	time and subject to such conditions as the board, or the
231	department when there is no board, may specify. Those conditions
232	may include, but are not limited to, requiring the licensee to
233	undergo treatment, attend continuing education courses, submit
234	to be reexamined, work under the supervision of another
235	licensee, or satisfy any terms which are reasonably tailored to
236	the violations found.
237	(g) Corrective action.
238	(h) Imposition of an administrative fine in accordance
239	with s. 381.0261 for violations regarding patient rights.
240	(i) Refund of fees billed and collected from the patient
241	or a third party on behalf of the patient.
242	(j) Requirement that the practitioner undergo remedial
243	education.
244
245	In determining what action is appropriate, the board, or
246	department when there is no board, must first consider what
247	sanctions are necessary to protect the public or to compensate
248	the patient. Only after those sanctions have been imposed may
249	the disciplining authority consider and include in the order
250	requirements designed to rehabilitate the practitioner. All
251	costs associated with compliance with orders issued under this
252	subsection are the obligation of the practitioner.
253	(3)(a) Notwithstanding subsection (2), if the ground for
254	disciplinary action is the first-time failure of the licensee to
255	satisfy continuing education requirements established by the
256	board, or by the department if there is no board, the board or
257	department, as applicable, shall issue a citation in accordance
258	with s. 456.077 and assess a fine, as determined by the board or
259	department by rule. In addition, for each hour of continuing
260	education not completed or completed late, the board or
261	department, as applicable, may require the licensee to take 1
262	additional hour of continuing education for each hour not
263	completed or completed late.
264	(b) Notwithstanding subsection (2), if the ground for
265	disciplinary action is the first-time violation of a practice
266	act for unprofessional conduct, as used in ss. 464.018(1)(h),
267	467.203(1)(f), 468.365(1)(f), and 478.52(1)(f), and no actual
268	harm to the patient occurred, the board or department, as
269	applicable, shall issue a citation in accordance with s. 456.077
270	and assess a penalty as determined by rule of the board or
271	department.
272	(4) In addition to any other discipline imposed through
273	final order, or citation, entered on or after July 1, 2001,
274	pursuant to this section or discipline imposed through final
275	order, or citation, entered on or after July 1, 2001, for a
276	violation of any practice act, the board, or the department when
277	there is no board, shall assess costs related to the
278	investigation and prosecution of the case. Such costs related to
279	the investigation and prosecution include, but are not limited
280	to, salaries and benefits of personnel, costs related to the
281	time spent by the attorney and other personnel working on the
282	case, and any other expenses incurred by the department for the
283	case. The board, or the department when there in no board, shall
284	determine the amount of costs to be assessed after its
285	consideration of an affidavit of itemized costs and any written
286	objections thereto. In any case where the board or the
287	department imposes a fine or assessment and the fine or
288	assessment is not paid within a reasonable time, such reasonable
289	time to be prescribed in the rules of the board, or the
290	department when there is no board, or in the order assessing
291	such fines or costs, the department or the Department of Legal
292	Affairs may contract for the collection of, or bring a civil
293	action to recover, the fine or assessment.
294	(5) In addition to, or in lieu of, any other remedy or
295	criminal prosecution, the department may file a proceeding in
296	the name of the state seeking issuance of an injunction or a
297	writ of mandamus against any person who violates any of the
298	provisions of this chapter, or any provision of law with respect
299	to professions regulated by the department, or any board
300	therein, or the rules adopted pursuant thereto.
301	(6) In the event the board, or the department when there
302	is no board, determines that revocation of a license is the
303	appropriate penalty, the revocation shall be permanent. However,
304	the board may establish by rule requirements for reapplication
305	by applicants whose licenses have been permanently revoked. Such
306	requirements may include, but shall not be limited to,
307	satisfying current requirements for an initial license.
308	(7) The purpose of this section is to facilitate uniform
309	discipline for those actions made punishable under this section
310	and, to this end, a reference to this section constitutes a
311	general reference under the doctrine of incorporation by
312	reference.
313	Section 3. This act shall take effect July 1, 2004.
314