HB 393

A bill to be entitled
2An act relating to treatment programs for impaired
3practitioners; amending s. 456.076, F.S.; exempting
4entities retained as impaired practitioner consultants
5from certain licensing requirements under certain
6circumstances; revising circumstances under which impaired
7practitioner consultants may contract for certain
8services; limiting liability of certain medical schools
9and schools that prepare certain health care practitioners
10and veterinarians for licensure under certain
11circumstances related to services provided by impaired
12practitioner consultants; revising procedures for
13processing complaints against impaired licensees; revising
14requirements for forwarding information about impaired
15licensees and certain students preparing for licensure to
16impaired practitioner consultants; providing for
17recommendations to the State Surgeon General for emergency
18suspension orders under certain circumstances; clarifying
19the types of legal proceedings related to services
20provided by impaired practitioner consultants against
21which the Department of Financial Services shall defend;
22revising requirements for the maintenance and disclosure
23to impaired licensees of confidential information by
24impaired practitioner consultants and the Department of
25Health; amending s. 456.0635, F.S.; excluding persons
26subject to addiction or impairment under certain
27circumstances from disqualification requirements related
28to examinations, licenses, certificates, and registrations
29for health professions and occupations; providing an
30effective date.
32Be It Enacted by the Legislature of the State of Florida:
34     Section 1.  Subsections (1), (2), and (3), paragraph (b) of
35subsection (5), and paragraph (b) of subsection (7) of section
36456.076, Florida Statutes, are amended, and subsection (8) is
37added to that section, to read:
38     456.076  Treatment programs for impaired practitioners.-
39     (1)  For professions or occupations that do not have
40impaired practitioner programs provided for in their practice
41acts, the department shall, by rule, designate approved impaired
42practitioner programs under this section. The department may
43adopt rules setting forth appropriate criteria for approval of
44treatment providers. The rules may specify the manner in which
45the consultant, retained as set forth in subsection (2), works
46with the department in intervention, requirements for evaluating
47and treating a professional, requirements for continued care of
48impaired professionals by approved treatment providers,
49continued monitoring by the consultant of the care provided by
50approved treatment providers regarding the professionals under
51their care, and requirements related to the consultant's
52expulsion of professionals from the program.
53     (2)(a)  The department shall retain one or more impaired
54practitioner consultants who are each licensees. The consultant
55shall be a licensee under the jurisdiction of the Division of
56Medical Quality Assurance within the department and who must be:
57     1.  A practitioner or recovered practitioner licensed under
58chapter 458, chapter 459, or part I of chapter 464;, or
59     2.  An entity employing a medical director, or employing a
60registered nurse as an executive director, who is must be a
61practitioner or recovered practitioner licensed under chapter
62458, chapter 459, or part I of chapter 464.
63     (b)  An entity retained as a consultant that employs a
64medical director, or employs a registered nurse as an executive
65director, is not required to be licensed as a substance abuse
66provider or mental health treatment provider pursuant to chapter
67394, chapter 395, or chapter 397 to operate as a consultant
68under this section if it employs or contracts with licensed
69professionals to perform or appropriately supervise any specific
70treatment or evaluation that requires individual licensing or
72     (c)  The consultant shall assist the probable cause panel
73and department in carrying out the responsibilities of this
74section. This shall include working with department
75investigators to determine whether a practitioner is, in fact,
76impaired. The consultant may contract for services to be
77provided, for appropriate compensation, if requested by a the
78school or program, for students enrolled in any school schools
79for licensure as a health care practitioner under chapter 456 or
80a veterinarian under chapter 474 allopathic physicians or
81physician assistants under chapter 458, osteopathic physicians
82or physician assistants under chapter 459, nurses under chapter
83464, or pharmacists under chapter 465 who are alleged to be
84impaired as a result of the misuse or abuse of alcohol or drugs,
85or both, or due to a mental or physical condition.
86     (d)  The department is not responsible under any
87circumstances for paying the costs of care provided by approved
88treatment providers, and the department is not responsible for
89paying the costs of consultants' services provided for such
91     (e)  A medical school accredited by the Liaison Committee
92on Medical Education of the Commission on Osteopathic College
93Accreditation, or another other school providing for the
94education of students enrolled in preparation for licensure as a
95health care practitioner under chapter 456 or a veterinarian
96under chapter 474 allopathic physicians under chapter 458 or
97osteopathic physicians under chapter 459, which school is
98governed by accreditation standards requiring notice and the
99provision of due process procedures to students, is not liable
100in any civil action for referring a student to the consultant
101retained by the department or for disciplinary actions that
102adversely affect the status of a student when the disciplinary
103actions are instituted in reasonable reliance on the
104recommendations, reports, or conclusions provided by such
105consultant, if the school, in referring the student or taking
106disciplinary action, adheres to the due process procedures
107adopted by the applicable accreditation entities and if the
108school committed no intentional fraud in carrying out the
109provisions of this section.
110     (3)(a)  Whenever the department receives a written or oral
111legally sufficient complaint alleging that a licensee under the
112jurisdiction of the Division of Medical Quality Assurance within
113the department is impaired as a result of the misuse or abuse of
114alcohol or drugs, or both, or due to a mental or physical
115condition which could affect the licensee's ability to practice
116with skill and safety, but the department has not received a and
117no complaint against the licensee on grounds other than
118impairment exists, the reporting of such information shall not
119constitute grounds for discipline pursuant to s. 456.072 or the
120corresponding grounds for discipline within the applicable
121practice act if the probable cause panel of the appropriate
122board, 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
125appropriate, approved treatment program.
126     3.  The licensee has voluntarily withdrawn from practice or
127limited the scope of practice as required by the consultant, in
128each case, until such time as the panel, or the department when
129there is no board, is satisfied the licensee has successfully
130completed an approved treatment program.
131     4.  The licensee has executed releases for medical records,
132authorizing the release of all records of evaluations,
133diagnoses, and treatment of the licensee, including records of
134treatment for emotional or mental conditions, to the consultant.
135The consultant shall make no copies or reports of records that
136do not regard the issue of the licensee's impairment and his or
137her participation in a treatment program.
138     (b)  If, however, the department has not received a legally
139sufficient complaint and the licensee agrees to withdraw from
140practice until such time as the consultant determines the
141licensee has satisfactorily completed an approved treatment
142program or evaluation, the probable cause panel, or the
143department when there is no board, shall not become involved in
144the licensee's case.
145     (c)  Inquiries related to impairment treatment programs
146designed to provide information to the licensee and others and
147which do not indicate that the licensee presents a danger to the
148public do shall not constitute a complaint within the meaning of
149s. 456.073 and are shall be exempt from the provisions of this
150subsection. In addition, a suspension from hospital staff
151privileges due to impairment does not constitute a complaint for
152purposes of this section.
153     (d)  Whenever the department receives information regarding
154the possible impairment of a licensee but has not received a
155legally sufficient complaint alleging that a licensee is
156impaired as described in paragraph (a) and no complaint against
157the licensee on grounds other than impairment exists, or
158receives information regarding the possible impairment of a
159student enrolled in preparation for licensure as an allopathic
160physician or physician assistant under chapter 458 or an
161osteopathic physician or physician assistant under chapter 459,
162the appropriate board, the executive director of that board, or
163the department shall forward all information in its possession
164regarding the impaired licensee or student to the consultant.
165For the purposes of this section, a suspension from hospital
166staff privileges due to the impairment does not constitute a
168     (e)  The probable cause panel, or the department when there
169is no board, shall work directly with the consultant, and all
170information concerning a practitioner obtained from the
171consultant by the panel, or the department when there is no
172board, shall remain confidential and exempt from the provisions
173of s. 119.07(1), subject to the provisions of subsections (5)
174and (6).
175     (f)  A finding of probable cause shall not be made as long
176as the panel, or the department when there is no board, is
177satisfied, based upon information it receives from the
178consultant and the department, that the licensee is progressing
179satisfactorily in an approved impaired practitioner program and
180no other complaint against the licensee exists.
181     (5)
182     (b)  If in the opinion of the consultant, after
183consultation with the treatment provider, an impaired licensee
184has not progressed satisfactorily in a treatment program, all
185information regarding the issue of a licensee's impairment and
186participation in a treatment program in the consultant's
187possession shall be disclosed to the department. Such disclosure
188shall constitute a complaint pursuant to the general provisions
189of s. 456.073. Whenever the consultant concludes that impairment
190affects a licensee's practice and constitutes an immediate,
191serious danger to the public health, safety, or welfare, the
192department that conclusion shall recommend an emergency
193suspension order that contains the consultant's conclusions be
194communicated to the State Surgeon General for immediate review.
195     (7)
196     (b)  In accordance with s. 284.385, the Department of
197Financial Services shall defend any claim, suit, action, or
198proceeding, including a claim, suit, action, or proceeding for
199injunctive, affirmative, or declaratory relief, against the
200consultant, the consultant's officers or employees, or those
201acting at the direction of the consultant for the limited
202purpose of an emergency intervention on behalf of a licensee or
203student as described in subsection (2) when the consultant is
204unable to perform such intervention which is brought as a result
205of any act or omission by any of the consultant's officers and
206employees and those acting under the direction of the consultant
207for the limited purpose of an emergency intervention on behalf
208of a licensee or student as described in subsection (2) when the
209consultant is unable to perform such intervention when such act
210or omission arises out of and in the scope of the consultant's
211duties under its contract with the department.
212     (8)  An impaired practitioner consultant shall serve as the
213official records custodian for any impaired licensee that the
214consultant monitors. The consultant may not, except to the
215extent necessary for carrying out the consultant's duties under
216this section, disclose to the impaired licensee or his or her
217designee any information disclosed to or obtained by the
218consultant that is confidential under paragraph (5)(a). When a
219disciplinary proceeding is pending, an impaired licensee may
220obtain such information from the department under s.
222     Section 2.  Subsection (2) of section 456.0635, Florida
223Statutes, is amended to read:
224     456.0635  Medicaid fraud; disqualification for license,
225certificate, or registration.-
226     (2)  Each board within the jurisdiction of the department,
227or the department if there is no board, shall refuse to admit a
228candidate to any examination and refuse to issue or renew a
229license, certificate, or registration to any applicant if the
230candidate or applicant or any principal, officer, agent,
231managing employee, or affiliated person of the applicant, has
233     (a)  Convicted of, or entered a plea of guilty or nolo
234contendere to, regardless of adjudication, a felony under
235chapter 409, chapter 817, chapter 893, 21 U.S.C. ss. 801-970, or
23642 U.S.C. ss. 1395-1396, unless the sentence and any subsequent
237period of probation for such conviction or pleas ended more than
23815 years before prior to the date of the application;
239     (b)  Terminated for cause from the Florida Medicaid program
240pursuant to s. 409.913, unless the applicant has been in good
241standing with the Florida Medicaid program for the most recent 5
242years; or
243     (c)  Terminated for cause, pursuant to the appeals
244procedures established by the state or Federal Government, from
245any other state Medicaid program or the federal Medicare
246program, unless the applicant has been in good standing with a
247state Medicaid program or the federal Medicare program for the
248most recent 5 years and the termination occurred at least 20
249years before prior to the date of the application.
251The disqualification set forth in this subsection does not apply
252to a person who was subject to addiction or impairment at the
253time of the violation for which the person was convicted of, or
254entered a plea of guilty or nolo contendere to, a felony under
255chapter 893 if the person subsequently enrolled in and either
256continues to successfully participate in or has subsequently
257successfully completed an impaired practitioner program approved
258under s. 456.076(1) or an equivalent program in another
259jurisdiction. However, this exception from disqualification does
260not prohibit or require action against the license, certificate,
261or registration of the person pursuant to the disciplinary
262provisions 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.