HB 393

1	A bill to be entitled
2	An act relating to treatment programs for impaired
3	practitioners; amending s. 456.076, F.S.; exempting
4	entities retained as impaired practitioner consultants
5	from certain licensing requirements under certain
6	circumstances; revising circumstances under which impaired
7	practitioner consultants may contract for certain
8	services; limiting liability of certain medical schools
9	and schools that prepare certain health care practitioners
10	and veterinarians for licensure under certain
11	circumstances related to services provided by impaired
12	practitioner consultants; revising procedures for
13	processing complaints against impaired licensees; revising
14	requirements for forwarding information about impaired
15	licensees and certain students preparing for licensure to
16	impaired practitioner consultants; providing for
17	recommendations to the State Surgeon General for emergency
18	suspension orders under certain circumstances; clarifying
19	the types of legal proceedings related to services
20	provided by impaired practitioner consultants against
21	which the Department of Financial Services shall defend;
22	revising requirements for the maintenance and disclosure
23	to impaired licensees of confidential information by
24	impaired practitioner consultants and the Department of
25	Health; amending s. 456.0635, F.S.; excluding persons
26	subject to addiction or impairment under certain
27	circumstances from disqualification requirements related
28	to examinations, licenses, certificates, and registrations
29	for health professions and occupations; providing an
30	effective date.
31
32	Be It Enacted by the Legislature of the State of Florida:
33
34	Section 1.  Subsections (1), (2), and (3), paragraph (b) of
35	subsection (5), and paragraph (b) of subsection (7) of section
36	456.076, Florida Statutes, are amended, and subsection (8) is
37	added to that section, to read:
38	456.076  Treatment programs for impaired practitioners.-
39	(1)  For professions or occupations that do not have
40	impaired practitioner programs provided for in their practice
41	acts, the department shall, by rule, designate approved impaired
42	practitioner programs under this section. The department may
43	adopt rules setting forth appropriate criteria for approval of
44	treatment providers. The rules may specify the manner in which
45	the consultant, retained as set forth in subsection (2), works
46	with the department in intervention, requirements for evaluating
47	and treating a professional, requirements for continued care of
48	impaired professionals by approved treatment providers,
49	continued monitoring by the consultant of the care provided by
50	approved treatment providers regarding the professionals under
51	their care, and requirements related to the consultant's
52	expulsion of professionals from the program.
53	(2)(a)  The department shall retain one or more impaired
54	practitioner consultants who are each licensees. The consultant
55	shall be a licensee under the jurisdiction of the Division of
56	Medical Quality Assurance within the department and who must be:
57	1.  A practitioner or recovered practitioner licensed under
58	chapter 458, chapter 459, or part I of chapter 464;, or
59	2.  An entity employing a medical director, or employing a
60	registered nurse as an executive director, who is must be a
61	practitioner or recovered practitioner licensed under chapter
62	458, chapter 459, or part I of chapter 464.
63	(b)  An entity retained as a consultant that employs a
64	medical director, or employs a registered nurse as an executive
65	director, is not required to be licensed as a substance abuse
66	provider or mental health treatment provider pursuant to chapter
67	394, chapter 395, or chapter 397 to operate as a consultant
68	under this section if it employs or contracts with licensed
69	professionals to perform or appropriately supervise any specific
70	treatment or evaluation that requires individual licensing or
71	supervision.
72	(c)  The consultant shall assist the probable cause panel
73	and department in carrying out the responsibilities of this
74	section. This shall include working with department
75	investigators to determine whether a practitioner is, in fact,
76	impaired. The consultant may contract for services to be
77	provided, for appropriate compensation, if requested by a the
78	school or program, for students enrolled in any school schools
79	for licensure as a health care practitioner under chapter 456 or
80	a veterinarian under chapter 474 allopathic physicians or
81	physician assistants under chapter 458, osteopathic physicians
82	or physician assistants under chapter 459, nurses under chapter
83	464, or pharmacists under chapter 465 who are alleged to be
84	impaired as a result of the misuse or abuse of alcohol or drugs,
85	or both, or due to a mental or physical condition.
86	(d)  The department is not responsible under any
87	circumstances for paying the costs of care provided by approved
88	treatment providers, and the department is not responsible for
89	paying the costs of consultants' services provided for such
90	students.
91	(e)  A medical school accredited by the Liaison Committee
92	on Medical Education of the Commission on Osteopathic College
93	Accreditation, or another other school providing for the
94	education of students enrolled in preparation for licensure as a
95	health care practitioner under chapter 456 or a veterinarian
96	under chapter 474 allopathic physicians under chapter 458 or
97	osteopathic physicians under chapter 459, which school is
98	governed by accreditation standards requiring notice and the
99	provision of due process procedures to students, is not liable
100	in any civil action for referring a student to the consultant
101	retained by the department or for disciplinary actions that
102	adversely affect the status of a student when the disciplinary
103	actions are instituted in reasonable reliance on the
104	recommendations, reports, or conclusions provided by such
105	consultant, if the school, in referring the student or taking
106	disciplinary action, adheres to the due process procedures
107	adopted by the applicable accreditation entities and if the
108	school committed no intentional fraud in carrying out the
109	provisions of this section.
110	(3)(a)  Whenever the department receives a written or oral
111	legally sufficient complaint alleging that a licensee under the
112	jurisdiction of the Division of Medical Quality Assurance within
113	the department is impaired as a result of the misuse or abuse of
114	alcohol or drugs, or both, or due to a mental or physical
115	condition which could affect the licensee's ability to practice
116	with skill and safety, but the department has not received a and
117	no complaint against the licensee on grounds other than
118	impairment exists, the reporting of such information shall not
119	constitute grounds for discipline pursuant to s. 456.072 or the
120	corresponding grounds for discipline within the applicable
121	practice act if the probable cause panel of the appropriate
122	board, or the department when there is no board, finds:
123	1.  The licensee has acknowledged the impairment problem.
124	2.  The licensee has voluntarily enrolled in an
125	appropriate, approved treatment program.
126	3.  The licensee has voluntarily withdrawn from practice or
127	limited the scope of practice as required by the consultant, in
128	each case, until such time as the panel, or the department when
129	there is no board, is satisfied the licensee has successfully
130	completed an approved treatment program.
131	4.  The licensee has executed releases for medical records,
132	authorizing the release of all records of evaluations,
133	diagnoses, and treatment of the licensee, including records of
134	treatment for emotional or mental conditions, to the consultant.
135	The consultant shall make no copies or reports of records that
136	do not regard the issue of the licensee's impairment and his or
137	her participation in a treatment program.
138	(b)  If, however, the department has not received a legally
139	sufficient complaint and the licensee agrees to withdraw from
140	practice until such time as the consultant determines the
141	licensee has satisfactorily completed an approved treatment
142	program or evaluation, the probable cause panel, or the
143	department when there is no board, shall not become involved in
144	the licensee's case.
145	(c)  Inquiries related to impairment treatment programs
146	designed to provide information to the licensee and others and
147	which do not indicate that the licensee presents a danger to the
148	public do shall not constitute a complaint within the meaning of
149	s. 456.073 and are shall be exempt from the provisions of this
150	subsection. In addition, a suspension from hospital staff
151	privileges due to impairment does not constitute a complaint for
152	purposes of this section.
153	(d)  Whenever the department receives information regarding
154	the possible impairment of a licensee but has not received a
155	legally sufficient complaint alleging that a licensee is
156	impaired as described in paragraph (a) and no complaint against
157	the licensee on grounds other than impairment exists, or
158	receives information regarding the possible impairment of a
159	student enrolled in preparation for licensure as an allopathic
160	physician or physician assistant under chapter 458 or an
161	osteopathic physician or physician assistant under chapter 459,
162	the appropriate board, the executive director of that board, or
163	the department shall forward all information in its possession
164	regarding the impaired licensee or student to the consultant.
165	For the purposes of this section, a suspension from hospital
166	staff privileges due to the impairment does not constitute a
167	complaint.
168	(e)  The probable cause panel, or the department when there
169	is no board, shall work directly with the consultant, and all
170	information concerning a practitioner obtained from the
171	consultant by the panel, or the department when there is no
172	board, shall remain confidential and exempt from the provisions
173	of s. 119.07(1), subject to the provisions of subsections (5)
174	and (6).
175	(f)  A finding of probable cause shall not be made as long
176	as the panel, or the department when there is no board, is
177	satisfied, based upon information it receives from the
178	consultant and the department, that the licensee is progressing
179	satisfactorily in an approved impaired practitioner program and
180	no other complaint against the licensee exists.
181	(5)
182	(b)  If in the opinion of the consultant, after
183	consultation with the treatment provider, an impaired licensee
184	has not progressed satisfactorily in a treatment program, all
185	information regarding the issue of a licensee's impairment and
186	participation in a treatment program in the consultant's
187	possession shall be disclosed to the department. Such disclosure
188	shall constitute a complaint pursuant to the general provisions
189	of s. 456.073. Whenever the consultant concludes that impairment
190	affects a licensee's practice and constitutes an immediate,
191	serious danger to the public health, safety, or welfare, the
192	department that conclusion shall recommend an emergency
193	suspension order that contains the consultant's conclusions be
194	communicated to the State Surgeon General for immediate review.
195	(7)
196	(b)  In accordance with s. 284.385, the Department of
197	Financial Services shall defend any claim, suit, action, or
198	proceeding, including a claim, suit, action, or proceeding for
199	injunctive, affirmative, or declaratory relief, against the
200	consultant, the consultant's officers or employees, or those
201	acting at the direction of the consultant for the limited
202	purpose of an emergency intervention on behalf of a licensee or
203	student as described in subsection (2) when the consultant is
204	unable to perform such intervention which is brought as a result
205	of any act or omission by any of the consultant's officers and
206	employees and those acting under the direction of the consultant
207	for the limited purpose of an emergency intervention on behalf
208	of a licensee or student as described in subsection (2) when the
209	consultant is unable to perform such intervention when such act
210	or omission arises out of and in the scope of the consultant's
211	duties under its contract with the department.
212	(8)  An impaired practitioner consultant shall serve as the
213	official records custodian for any impaired licensee that the
214	consultant monitors. The consultant may not, except to the
215	extent necessary for carrying out the consultant's duties under
216	this section, disclose to the impaired licensee or his or her
217	designee any information disclosed to or obtained by the
218	consultant that is confidential under paragraph (5)(a). When a
219	disciplinary proceeding is pending, an impaired licensee may
220	obtain such information from the department under s.
221	456.073(10).
222	Section 2.  Subsection (2) of section 456.0635, Florida
223	Statutes, is amended to read:
224	456.0635  Medicaid fraud; disqualification for license,
225	certificate, or registration.-
226	(2)  Each board within the jurisdiction of the department,
227	or the department if there is no board, shall refuse to admit a
228	candidate to any examination and refuse to issue or renew a
229	license, certificate, or registration to any applicant if the
230	candidate or applicant or any principal, officer, agent,
231	managing employee, or affiliated person of the applicant, has
232	been:
233	(a)  Convicted of, or entered a plea of guilty or nolo
234	contendere to, regardless of adjudication, a felony under
235	chapter 409, chapter 817, chapter 893, 21 U.S.C. ss. 801-970, or
236	42 U.S.C. ss. 1395-1396, unless the sentence and any subsequent
237	period of probation for such conviction or pleas ended more than
238	15 years before prior to the date of the application;
239	(b)  Terminated for cause from the Florida Medicaid program
240	pursuant to s. 409.913, unless the applicant has been in good
241	standing with the Florida Medicaid program for the most recent 5
242	years; or
243	(c)  Terminated for cause, pursuant to the appeals
244	procedures established by the state or Federal Government, from
245	any other state Medicaid program or the federal Medicare
246	program, unless the applicant has been in good standing with a
247	state Medicaid program or the federal Medicare program for the
248	most recent 5 years and the termination occurred at least 20
249	years before prior to the date of the application.
250
251	The disqualification set forth in this subsection does not apply
252	to a person who was subject to addiction or impairment at the
253	time of the violation for which the person was convicted of, or
254	entered a plea of guilty or nolo contendere to, a felony under
255	chapter 893 if the person subsequently enrolled in and either
256	continues to successfully participate in or has subsequently
257	successfully completed an impaired practitioner program approved
258	under s. 456.076(1) or an equivalent program in another
259	jurisdiction. However, this exception from disqualification does
260	not prohibit or require action against the license, certificate,
261	or registration of the person pursuant to the disciplinary
262	provisions of this chapter or the appropriate practice act.
263	Section 3.  This act shall take effect July 1, 2011.

CODING: Words stricken are deletions; words underlined are additions.