Florida Senate - 2013 COMMITTEE AMENDMENT
Bill No. SB 248
Barcode 587390
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
03/14/2013 .
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The Committee on Health Policy (Bean) recommended the following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Section 456.076, Florida Statutes, is amended to
6 read:
7 456.076 Treatment programs for impaired practitioners.—
8 (1) For professions that do not have impaired practitioner
9 programs provided for in their practice acts, the department
10 shall, by rule, designate approved impaired practitioner
11 programs under this section. The department may adopt rules
12 setting forth appropriate criteria for approval of treatment
13 providers. The rules may specify the manner in which the
14 consultant, retained as set forth in subsection (2), works with
15 the department in intervention, requirements for evaluating and
16 treating a professional, requirements for continued care of
17 impaired professionals by approved treatment providers,
18 continued monitoring by the consultant of the care provided by
19 approved treatment providers regarding the professionals under
20 their care, and requirements related to the consultant’s
21 expulsion of professionals from the program.
22 (2)(a) The department shall retain one or more impaired
23 practitioner consultants who are each licensees. The consultant
24 shall be a licensee under the jurisdiction of the Division of
25 Medical Quality Assurance within the department and who must be:
26 1. A practitioner or recovered practitioner licensed under
27 chapter 458, chapter 459, or part I of chapter 464;, or
28 2. An entity that employs: employing
29 a. A medical director who must be a practitioner or
30 recovered practitioner licensed under chapter 458 or, chapter
31 459;, or
32 b. An executive director who must be a registered nurse or
33 a recovered registered nurse licensed under part I of chapter
34 464.
35 (b) An entity retained as an impaired practitioner
36 consultant under this section which employs a medical director
37 or an executive director is not required to be licensed as a
38 substance abuse provider or mental health treatment provider
39 under chapter 394, chapter 395, or chapter 397 for purposes of
40 providing services under this program.
41 (c)1. The consultant shall assist the probable cause panel
42 and the department in carrying out the responsibilities of this
43 section. This includes shall include working with department
44 investigators to determine whether a practitioner is, in fact,
45 impaired.
46 2. The consultant may contract with a school or program to
47 provide for services to a student be provided, for appropriate
48 compensation, if requested by the school, for students enrolled
49 for the purpose of preparing in schools for licensure as a
50 health care practitioner as defined in this chapter or as a
51 veterinarian under chapter 474 if the student is allegedly
52 allopathic physicians or physician assistants under chapter 458,
53 osteopathic physicians or physician assistants under chapter
54 459, nurses under chapter 464, or pharmacists under chapter 465
55 who are alleged to be impaired as a result of the misuse or
56 abuse of alcohol or drugs, or both, or due to a mental or
57 physical condition. The department is not responsible under any
58 circumstances for paying for the costs of care provided by
59 approved treatment providers or a consultant, and the department
60 is not responsible for paying the costs of consultants’ services
61 provided for students.
62 (d) A medical school accredited by the Liaison Committee on
63 Medical Education or of the Commission on Osteopathic College
64 Accreditation, or another other school providing for the
65 education of students enrolled in preparation for licensure as a
66 health care practitioner as defined in this chapter or a
67 veterinarian under chapter 474 allopathic physicians under
68 chapter 458 or osteopathic physicians under chapter 459, which
69 is governed by accreditation standards requiring notice and the
70 provision of due process procedures to students, is not liable
71 in any civil action for referring a student to the consultant
72 retained by the department or for disciplinary actions that
73 adversely affect the status of a student when the disciplinary
74 actions are instituted in reasonable reliance on the
75 recommendations, reports, or conclusions provided by such
76 consultant, if the school, in referring the student or taking
77 disciplinary action, adheres to the due process procedures
78 adopted by the applicable accreditation entities and if the
79 school committed no intentional fraud in carrying out the
80 provisions of this section.
81 (3) Each board and profession within the Division of
82 Medical Quality Assurance may delegate to its chair or other
83 designee its authority to determine, before certifying or
84 declining to certify an application for licensure to the
85 department, that an applicant for licensure under its
86 jurisdiction may be impaired as a result of the misuse or abuse
87 of alcohol or drugs, or both, or due to a mental or physical
88 condition that could affect the applicant’s ability to practice
89 with skill and safety. Upon such determination, the chair or
90 other designee may refer the applicant to the consultant for an
91 evaluation before the board certifies or declines to certify his
92 or her application to the department. If the applicant agrees to
93 be evaluated by the consultant, the department’s deadline for
94 approving or denying the application pursuant to s. 120.60(1) is
95 tolled until the evaluation is completed and the result of the
96 evaluation and recommendation by the consultant is communicated
97 to the board by the consultant. If the applicant declines to be
98 evaluated by the consultant, the board shall certify or decline
99 to certify the applicant’s application to the department
100 notwithstanding the lack of an evaluation and recommendation by
101 the consultant.
102 (4)(3)(a) Whenever the department receives a written or
103 oral legally sufficient complaint alleging that a licensee under
104 the jurisdiction of the Division of Medical Quality Assurance
105 within the department is impaired as a result of the misuse or
106 abuse of alcohol or drugs, or both, or due to a mental or
107 physical condition which could affect the licensee’s ability to
108 practice with skill and safety, and no complaint against the
109 licensee other than impairment exists, the reporting of such
110 information shall not constitute grounds for discipline pursuant
111 to s. 456.072 or the corresponding grounds for discipline within
112 the applicable practice act if the probable cause panel of the
113 appropriate board, or the department when there is no board,
114 finds:
115 1. The licensee has acknowledged the impairment problem.
116 2. The licensee has voluntarily enrolled in an appropriate,
117 approved treatment program.
118 3. The licensee has voluntarily withdrawn from practice or
119 limited the scope of practice as required by the consultant, in
120 each case, until such time as the panel, or the department when
121 there is no board, is satisfied the licensee has successfully
122 completed an approved treatment program.
123 4. The licensee has executed releases for medical records,
124 authorizing the release of all records of evaluations,
125 diagnoses, and treatment of the licensee, including records of
126 treatment for emotional or mental conditions, to the consultant.
127 The consultant shall make no copies or reports of records that
128 do not regard the issue of the licensee’s impairment and his or
129 her participation in a treatment program.
130 (b) If, however, the department has not received a legally
131 sufficient complaint and the licensee agrees to withdraw from
132 practice until such time as the consultant determines the
133 licensee has satisfactorily completed an approved treatment
134 program or evaluation, the probable cause panel, or the
135 department when there is no board, shall not become involved in
136 the licensee’s case.
137 (c) Inquiries related to impairment treatment programs
138 designed to provide information to the licensee and others and
139 which do not indicate that the licensee presents a danger to the
140 public shall not constitute a complaint within the meaning of s.
141 456.073 and shall be exempt from the provisions of this
142 subsection.
143 (d) Whenever the department receives a legally sufficient
144 complaint alleging that a licensee is impaired as described in
145 paragraph (a) and no complaint against the licensee other than
146 impairment exists, the department shall forward all information
147 in its possession regarding the impaired licensee to the
148 consultant. For the purposes of this section, a suspension from
149 hospital staff privileges due to the impairment does not
150 constitute a complaint.
151 (e) The probable cause panel, or the department when there
152 is no board, shall work directly with the consultant, and all
153 information concerning a practitioner obtained from the
154 consultant by the panel, or the department when there is no
155 board, shall remain confidential and exempt from the provisions
156 of s. 119.07(1), subject to the provisions of subsections (5)
157 and (6) and (7).
158 (f) A finding of probable cause shall not be made as long
159 as the panel, or the department when there is no board, is
160 satisfied, based upon information it receives from the
161 consultant and the department, that the licensee is progressing
162 satisfactorily in an approved impaired practitioner program and
163 no other complaint against the licensee exists.
164 (5)(4) In any disciplinary action for a violation other
165 than impairment in which a licensee establishes the violation
166 for which the licensee is being prosecuted was due to or
167 connected with impairment and further establishes the licensee
168 is satisfactorily progressing through or has successfully
169 completed an approved treatment program pursuant to this
170 section, such information may be considered by the board, or the
171 department when there is no board, as a mitigating factor in
172 determining the appropriate penalty. This subsection does not
173 limit mitigating factors the board may consider.
174 (6)(5)(a) An approved treatment provider shall, upon
175 request, disclose to the consultant all information in its
176 possession regarding the issue of a licensee’s impairment and
177 participation in the treatment program. All information obtained
178 by the consultant and department pursuant to this section is
179 confidential and exempt from the provisions of s. 119.07(1),
180 subject to the provisions of this subsection and subsection
181 (7)(6). Failure to provide such information to the consultant is
182 grounds for withdrawal of approval of such program or provider.
183 (b) If in the opinion of the consultant, after consultation
184 with the treatment provider, an impaired licensee has not
185 progressed satisfactorily in a treatment program, all
186 information regarding the issue of a licensee’s impairment and
187 participation in a treatment program in the consultant’s
188 possession shall be disclosed to the department. Such disclosure
189 shall constitute a complaint pursuant to the general provisions
190 of s. 456.073. Whenever the consultant concludes that impairment
191 affects a licensee’s practice and constitutes an immediate,
192 serious danger to the public health, safety, or welfare, that
193 conclusion shall be communicated to the State Surgeon General.
194 (7)(6) A consultant, licensee, or approved treatment
195 provider who makes a disclosure pursuant to this section is not
196 subject to civil liability for such disclosure or its
197 consequences. The provisions of s. 766.101 apply to any officer,
198 employee, or agent of the department or the board and to any
199 officer, employee, or agent of any entity with which the
200 department has contracted pursuant to this section.
201 (8)(7)(a) A consultant retained pursuant to subsection (2),
202 a consultant’s officers and employees, and those acting at the
203 direction of the consultant for the limited purpose of an
204 emergency intervention on behalf of a licensee or student as
205 described in subsection (2) when the consultant is unable to
206 perform such intervention shall be considered agents of the
207 department for purposes of s. 768.28 while acting within the
208 scope of the consultant’s duties under the contract with the
209 department if the contract complies with the requirements of
210 this section. The contract must require that:
211 1. The consultant indemnify the state for any liabilities
212 incurred up to the limits set out in chapter 768.
213 2. The consultant establish a quality assurance program to
214 monitor services delivered under the contract.
215 3. The consultant’s quality assurance program, treatment,
216 and monitoring records be evaluated quarterly.
217 4. The consultant’s quality assurance program be subject to
218 review and approval by the department.
219 5. The consultant operate under policies and procedures
220 approved by the department.
221 6. The consultant provide to the department for approval a
222 policy and procedure manual that comports with all statutes,
223 rules, and contract provisions approved by the department.
224 7. The department be entitled to review the records
225 relating to the consultant’s performance under the contract for
226 the purpose of management audits, financial audits, or program
227 evaluation.
228 8. All performance measures and standards be subject to
229 verification and approval by the department.
230 9. The department be entitled to terminate the contract
231 with the consultant for noncompliance with the contract.
232 (b) In accordance with s. 284.385, the Department of
233 Financial Services shall defend any claim, suit, action, or
234 proceeding against the consultant, the consultant’s officers or
235 employees, or those acting at the direction of the consultant
236 for the limited purpose of an emergency intervention on behalf
237 of a licensee or student as described in subsection (2) when the
238 consultant is unable to perform such intervention which is
239 brought as a result of any act or omission by any of the
240 consultant’s officers and employees and those acting under the
241 direction of the consultant for the limited purpose of an
242 emergency intervention on behalf of a licensee or student as
243 described in subsection (2) when the consultant is unable to
244 perform such intervention when such act or omission arises out
245 of and in the scope of the consultant’s duties under its
246 contract with the department.
247 (c) If the consultant retained pursuant to subsection (2)
248 is retained by any other state agency, and if the contract
249 between such state agency and the consultant complies with the
250 requirements of this section, the consultant, the consultant’s
251 officers and employees, and those acting under the direction of
252 the consultant for the limited purpose of an emergency
253 intervention on behalf of a licensee or student as described in
254 subsection (2) when the consultant is unable to perform such
255 intervention shall be considered agents of the state for the
256 purposes of this section while acting within the scope of and
257 pursuant to guidelines established in the contract between such
258 state agency and the consultant.
259 (9) An impaired practitioner consultant is the official
260 custodian of records relating to the referral of an impaired
261 licensee or applicant to that consultant and any other
262 interaction between the licensee or applicant and the
263 consultant. The consultant may disclose to the impaired licensee
264 or applicant or his or her designee any information that is
265 disclosed to or obtained by the consultant or that is
266 confidential under paragraph (6)(a), but only to the extent that
267 it is necessary to do so to carry out the consultant’s duties
268 under this section. The department, and any other entity that
269 enters into a contract with the consultant to receive the
270 services of the consultant, has direct administrative control
271 over the consultant to the extent necessary to receive
272 disclosures from the consultant as allowed by federal law. If a
273 disciplinary proceeding is pending, an impaired licensee may
274 obtain such information from the department under s. 456.073.
275 Section 2. Paragraph (e) of subsection (1) of section
276 458.331, Florida Statutes, is amended to read:
277 458.331 Grounds for disciplinary action; action by the
278 board and department.—
279 (1) The following acts constitute grounds for denial of a
280 license or disciplinary action, as specified in s. 456.072(2):
281 (e) Failing to report to the department any person who the
282 licensee knows is in violation of this chapter or of the rules
283 of the department or the board. A treatment provider approved
284 pursuant to s. 456.076 shall provide the department or
285 consultant with information in accordance with the requirements
286 of s. 456.076(4), (5), (6), (7), and (9) s. 456.076(3), (4),
287 (5), and (6).
288 Section 3. Paragraph (e) of subsection (1) of section
289 459.015, Florida Statutes, is amended to read:
290 459.015 Grounds for disciplinary action; action by the
291 board and department.—
292 (1) The following acts constitute grounds for denial of a
293 license or disciplinary action, as specified in s. 456.072(2):
294 (e) Failing to report to the department or the department’s
295 impaired professional consultant any person who the licensee or
296 certificateholder knows is in violation of this chapter or of
297 the rules of the department or the board. A treatment provider,
298 approved pursuant to s. 456.076, shall provide the department or
299 consultant with information in accordance with the requirements
300 of s. 456.076(4), (5), (6), (7), and (9) s. 456.076(3), (4),
301 (5), and (6).
302 Section 4. Section 468.315, Florida Statutes, is created to
303 read:
304 468.315 Treatment program for impaired radiological
305 personnel.—Radiological personnel who are subject to
306 certification under this part are governed by s. 456.076 as if
307 they were under the jurisdiction of the Division of Medical
308 Quality Assurance.
309 Section 5. This act shall take effect July 1, 2013.
310
311 ================= T I T L E A M E N D M E N T ================
312 And the title is amended as follows:
313 Delete everything before the enacting clause
314 and insert:
315 A bill to be entitled
316 An act relating to treatment programs for impaired
317 licensees and applicants; amending s. 456.076, F.S.;
318 exempting an entity retained by the Department of
319 Health as an impaired practitioner consultant from
320 certain licensure requirements; authorizing impaired
321 practitioner consultants to contract with schools or
322 programs to provide services to impaired students who
323 are enrolled for the purpose of preparing for
324 licensure as a specified health care practitioner or
325 as a veterinarian; limiting the liability of those
326 schools or programs when they refer a student to an
327 impaired practitioner consultant; authorizing each
328 board and profession within the division to delegate
329 to its chair or other designee the authority to
330 determine that an applicant for licensure under its
331 jurisdiction may be impaired before certifying or
332 declining to certify an application for licensure;
333 authorizing the chair or other designee to refer the
334 applicant to the consultant for an evaluation before
335 the board certifies or declines to certify the
336 applicant’s application to the department; tolling the
337 department’s deadline for approving or denying the
338 application until the evaluation is completed and the
339 result of the evaluation and recommendation by the
340 consultant is communicated to the board by the
341 consultant if the applicant agrees to be evaluated by
342 the consultant; requiring the board to certify or
343 decline to certify the applicant’s application to the
344 department notwithstanding the lack of an evaluation
345 and recommendation by the consultant if the applicant
346 declines to be evaluated by the consultant; providing
347 that the impaired practitioner consultant is the
348 official custodian of records relating to the referral
349 of the licensee or applicant to the consultant and any
350 other interaction between them; clarifying the
351 circumstances under which an impaired practitioner
352 consultant may disclose certain information concerning
353 an impaired licensee or applicant; authorizing the
354 Department of Health and others that contract with an
355 impaired practitioner consultant to have
356 administrative control over the consultant to the
357 extent necessary to receive disclosures allowed under
358 federal law; authorizing an impaired licensee to
359 obtain confidential information from the department
360 regarding a pending disciplinary proceeding; amending
361 ss. 458.331 and 459.015, F.S.; conforming cross
362 references; creating s. 468.315, F.S.; providing that
363 radiological personnel are subject to a treatment
364 program for impaired licensees; providing an effective
365 date.
366