Florida Senate - 2017                        COMMITTEE AMENDMENT
       Bill No. SB 876
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/14/2017           .                                

       The Committee on Health Policy (Young) recommended the
    1         Senate Substitute for Amendment (420676) (with title
    2  amendment)
    4         Delete lines 88 - 492
    5  and insert:
    6         (e)“Impairment” means a potentially impairing health
    7  condition that is the result of the misuse or abuse of alcohol,
    8  drugs, or both, or a mental or physical condition that could
    9  affect a practitioner’s ability to practice with skill and
   10  safety.
   11         (f)“Inability to progress” means a determination by a
   12  consultant based on a participant’s response to treatment and
   13  prognosis that the participant is unable to safely practice
   14  despite compliance with treatment requirements and his or her
   15  participant contract.
   16         (g)“Material noncompliance” means an act or omission by a
   17  participant in violation of his or her participant contract as
   18  determined by the department or consultant.
   19         (h)“Participant” means a practitioner who is participating
   20  in the impaired practitioner program by having entered into a
   21  participant contract. A practitioner ceases to be a participant
   22  when the participant contract is successfully completed or is
   23  terminated for any reason.
   24         (i)“Participant contract” means a formal written document
   25  outlining the requirements established by a consultant for a
   26  participant to successfully complete the impaired practitioner
   27  program, including the participant’s monitoring plan.
   28         (j)“Practitioner” means a person licensed, registered,
   29  certified, or regulated by the department under part III of
   30  chapter 401; chapter 457; chapter 458; chapter 459; chapter 460;
   31  chapter 461; chapter 462; chapter 463; chapter 464; chapter 465;
   32  chapter 466; chapter 467; part I, part II, part III, part V,
   33  part X, part XIII, or part XIV of chapter 468; chapter 478;
   34  chapter 480; part III or part IV of chapter 483; chapter 484;
   35  chapter 486; chapter 490; or chapter 491; or an applicant for a
   36  license, registration, or certification under the same laws.
   37         (k)“Referral” means a practitioner who has been referred,
   38  either as a self-referral or otherwise, or reported to a
   39  consultant for impaired practitioner program services, but who
   40  is not under a participant contract.
   41         (l)“Treatment program” means a department- or consultant
   42  approved residential, intensive outpatient, partial
   43  hospitalization or other program through which an impaired
   44  practitioner is treated based on the impaired practitioner’s
   45  diagnosis and the treatment plan approved by the consultant.
   46         (m)“Treatment provider” means a department- or consultant
   47  approved state-licensed or nationally certified individual who
   48  provides treatment to an impaired practitioner based on the
   49  practitioner’s individual diagnosis and a treatment plan
   50  approved by the consultant For professions that do not have
   51  impaired practitioner programs provided for in their practice
   52  acts, the department shall, by rule, designate approved impaired
   53  practitioner programs under this section. The department may
   54  adopt rules setting forth appropriate criteria for approval of
   55  treatment providers. The rules may specify the manner in which
   56  the consultant, retained as set forth in subsection (2), works
   57  with the department in intervention, requirements for evaluating
   58  and treating a professional, requirements for continued care of
   59  impaired professionals by approved treatment providers,
   60  continued monitoring by the consultant of the care provided by
   61  approved treatment providers regarding the professionals under
   62  their care, and requirements related to the consultant’s
   63  expulsion of professionals from the program.
   64         (2)(a) The department may shall retain one or more impaired
   65  practitioner consultants to operate its impaired practitioner
   66  program. Each consultant who are each licensees under the
   67  jurisdiction of the Division of Medical Quality Assurance within
   68  the department and who must be:
   69         (a)1. A practitioner or recovered practitioner licensed
   70  under chapter 458, chapter 459, or part I of chapter 464; or
   71         (b)2. An entity that employs:
   72         1.a. A medical director who is must be a practitioner or
   73  recovered practitioner licensed under chapter 458 or chapter
   74  459; or
   75         2.b. An executive director who is must be a registered
   76  nurse or a recovered registered nurse licensed under part I of
   77  chapter 464.
   78         (3)The terms and conditions of the impaired practitioner
   79  program must be established by the department by contract with a
   80  consultant for the protection of the health, safety, and welfare
   81  of the public and must provide, at a minimum, that the
   82  consultant:
   83         (a)Accepts referrals;
   84         (b)Arranges for the evaluation and treatment of impaired
   85  practitioners by a treatment provider, when the consultant deems
   86  the evaluation and treatment necessary;
   87         (c)Monitors the recovery progress and status of impaired
   88  practitioners to ensure that such practitioners are able to
   89  practice their profession with skill and safety. Such monitoring
   90  must continue until the consultant or department concludes that
   91  monitoring by the consultant is no longer required for the
   92  protection of the public or until the practitioner’s
   93  participation in the program is terminated for material
   94  noncompliance or inability to progress; and
   95         (d)Does not directly evaluate, treat, or otherwise provide
   96  patient care to a practitioner in the operation of the impaired
   97  practitioner program.
   98         (4)The department shall specify, in its contract with each
   99  consultant, the types of licenses, registrations, or
  100  certifications of the practitioners to be served by that
  101  consultant.
  102         (5)A consultant shall enter into a participant contract
  103  with an impaired practitioner and shall establish the terms of
  104  monitoring and shall include the terms in a participant
  105  contract. In establishing the terms of monitoring, the
  106  consultant may consider the recommendations of one or more
  107  approved evaluators, treatment programs, or treatment providers.
  108  A consultant may modify the terms of monitoring if the
  109  consultant concludes, through the course of monitoring, that
  110  extended, additional, or amended terms of monitoring are
  111  required for the protection of the health, safety, and welfare
  112  of the public.
  113         (6)(b)A An entity retained as an impaired practitioner
  114  consultant under this section which employs a medical director
  115  or an executive director is not required to be licensed as a
  116  substance abuse provider or mental health treatment provider
  117  under chapter 394, chapter 395, or chapter 397 for purposes of
  118  providing services under this program.
  119         (7)(c)1.Each The consultant shall assist the department
  120  and licensure boards on matters of impaired practitioners,
  121  including the determination of probable cause panel and the
  122  department in carrying out the responsibilities of this section.
  123  This includes working with department investigators to determine
  124  whether a practitioner is, in fact, impaired, as specified in
  125  the consultant’s contract with the department.
  126         2.The consultant may contract with a school or program to
  127  provide services to a student enrolled for the purpose of
  128  preparing for licensure as a health care practitioner as defined
  129  in this chapter or as a veterinarian under chapter 474 if the
  130  student is allegedly impaired as a result of the misuse or abuse
  131  of alcohol or drugs, or both, or due to a mental or physical
  132  condition. The department is not responsible for paying for the
  133  care provided by approved treatment providers or a consultant.
  134         (d)A medical school accredited by the Liaison Committee on
  135  Medical Education or the Commission on Osteopathic College
  136  Accreditation, or another school providing for the education of
  137  students enrolled in preparation for licensure as a health care
  138  practitioner as defined in this chapter or a veterinarian under
  139  chapter 474 which is governed by accreditation standards
  140  requiring notice and the provision of due process procedures to
  141  students, is not liable in any civil action for referring a
  142  student to the consultant retained by the department or for
  143  disciplinary actions that adversely affect the status of a
  144  student when the disciplinary actions are instituted in
  145  reasonable reliance on the recommendations, reports, or
  146  conclusions provided by such consultant, if the school, in
  147  referring the student or taking disciplinary action, adheres to
  148  the due process procedures adopted by the applicable
  149  accreditation entities and if the school committed no
  150  intentional fraud in carrying out the provisions of this
  151  section.
  152         (8)(3)Before issuing an approval of, or intent to deny, an
  153  application for licensure, each board and profession within the
  154  Division of Medical Quality Assurance may delegate to its chair
  155  or other designee its authority to determine, before certifying
  156  or declining to certify an application for licensure to the
  157  department, that an applicant for licensure under its
  158  jurisdiction may have an impairment be impaired as a result of
  159  the misuse or abuse of alcohol or drugs, or both, or due to a
  160  mental or physical condition that could affect the applicant’s
  161  ability to practice with skill and safety. Upon such
  162  determination, the chair or other designee may refer the
  163  applicant to the consultant to facilitate for an evaluation
  164  before the board issues an approval of, certifies or intent to
  165  deny, declines to certify his or her application to the
  166  department. If the applicant agrees to be evaluated by the
  167  consultant, the department’s deadline for approving or denying
  168  the application pursuant to s. 120.60(1) is tolled until the
  169  evaluation is completed and the result of the evaluation and
  170  recommendation by the consultant is communicated to the board by
  171  the consultant. If the applicant declines to be evaluated by the
  172  consultant, the board shall issue an approval of, or intent to
  173  deny, certify or decline to certify the applicant’s application
  174  to the department notwithstanding the lack of an evaluation and
  175  recommendation by the consultant.
  176         (9)(a)(4)(a)When Whenever the department receives a
  177  written or oral legally sufficient complaint alleging that a
  178  practitioner has an impairment licensee under the jurisdiction
  179  of the Division of Medical Quality Assurance within the
  180  department is impaired as a result of the misuse or abuse of
  181  alcohol or drugs, or both, or due to a mental or physical
  182  condition which could affect the licensee’s ability to practice
  183  with skill and safety, and no complaint exists against the
  184  practitioner licensee other than impairment exists, the
  185  department shall refer the practitioner to the consultant, along
  186  with all information in the department’s possession relating to
  187  the impairment. The impairment does reporting of such
  188  information shall not constitute grounds for discipline pursuant
  189  to s. 456.072 or the corresponding grounds for discipline within
  190  the applicable practice act if the probable cause panel of the
  191  appropriate board, or the department when there is no board,
  192  finds:
  193         1. The practitioner licensee has acknowledged the
  194  impairment; problem.
  195         2. The practitioner becomes a participant licensee has
  196  voluntarily enrolled in an impaired practitioner program and
  197  successfully completes a participant contract under terms
  198  established by the consultant; appropriate, approved treatment
  199  program.
  200         3. The practitioner licensee has voluntarily withdrawn from
  201  practice or has limited the scope of his or her practice if as
  202  required by the consultant;, in each case, until such time as
  203  the panel, or the department when there is no board, is
  204  satisfied the licensee has successfully completed an approved
  205  treatment program.
  206         4. The practitioner licensee has provided to the
  207  consultant, or has authorized the consultant to obtain, all
  208  records and information relating to the impairment from any
  209  source and all other medical records of the practitioner
  210  requested by the consultant; and executed releases for medical
  211  records, authorizing the release of all records of evaluations,
  212  diagnoses, and treatment of the licensee, including records of
  213  treatment for emotional or mental conditions, to the consultant.
  214  The consultant shall make no copies or reports of records that
  215  do not regard the issue of the licensee’s impairment and his or
  216  her participation in a treatment program.
  217         5.The practitioner has authorized the consultant, in the
  218  event of the practitioner’s termination from the impaired
  219  practitioner program, to report the termination to the
  220  department and provide the department with copies of all
  221  information in the consultant’s possession relating to the
  222  practitioner.
  223         (b) To encourage practitioners who are or may be impaired
  224  to voluntarily self-refer to a consultant, the consultant may
  225  not provide information to the department relating to a self
  226  referring participant if the consultant has no knowledge of a
  227  pending department investigation, complaint, or disciplinary
  228  action against the participant and if the participant is in
  229  compliance and making progress with the terms of the impaired
  230  practitioner program and contract, unless authorized by the
  231  participant If, however, the department has not received a
  232  legally sufficient complaint and the licensee agrees to withdraw
  233  from practice until such time as the consultant determines the
  234  licensee has satisfactorily completed an approved treatment
  235  program or evaluation, the probable cause panel, or the
  236  department when there is no board, shall not become involved in
  237  the licensee’s case.
  238         (c)Inquiries related to impairment treatment programs
  239  designed to provide information to the licensee and others and
  240  which do not indicate that the licensee presents a danger to the
  241  public shall not constitute a complaint within the meaning of s.
  242  456.073 and shall be exempt from the provisions of this
  243  subsection.
  244         (d)Whenever the department receives a legally sufficient
  245  complaint alleging that a licensee is impaired as described in
  246  paragraph (a) and no complaint against the licensee other than
  247  impairment exists, the department shall forward all information
  248  in its possession regarding the impaired licensee to the
  249  consultant. For the purposes of this section, a suspension from
  250  hospital staff privileges due to the impairment does not
  251  constitute a complaint.
  252         (e)The probable cause panel, or the department when there
  253  is no board, shall work directly with the consultant, and all
  254  information concerning a practitioner obtained from the
  255  consultant by the panel, or the department when there is no
  256  board, shall remain confidential and exempt from the provisions
  257  of s. 119.07(1), subject to the provisions of subsections (6)
  258  and (7).
  259         (f)A finding of probable cause shall not be made as long
  260  as the panel, or the department when there is no board, is
  261  satisfied, based upon information it receives from the
  262  consultant and the department, that the licensee is progressing
  263  satisfactorily in an approved impaired practitioner program and
  264  no other complaint against the licensee exists.
  265         (10)(5) In any disciplinary action for a violation other
  266  than impairment in which a practitioner licensee establishes the
  267  violation for which the practitioner licensee is being
  268  prosecuted was due to or connected with impairment and further
  269  establishes the practitioner licensee is satisfactorily
  270  progressing through or has successfully completed an impaired
  271  practitioner program approved treatment program pursuant to this
  272  section, such information may be considered by the board, or the
  273  department when there is no board, as a mitigating factor in
  274  determining the appropriate penalty. This subsection does not
  275  limit mitigating factors the board may consider.
  276         (11)(a)(6)(a)Upon request by the consultant, and with the
  277  authorization of the practitioner when required by law, an
  278  approved evaluator, treatment program, or treatment provider
  279  shall, upon request, disclose to the consultant all information
  280  in its possession regarding a referral or participant the issue
  281  of a licensee’s impairment and participation in the treatment
  282  program. All information obtained by the consultant and
  283  department pursuant to this section is confidential and exempt
  284  from the provisions of s. 119.07(1), subject to the provisions
  285  of this subsection and subsection (7). Failure to provide such
  286  information to the consultant is grounds for withdrawal of
  287  approval of such evaluator, treatment program, or treatment
  288  provider.
  289         (b) When a referral or participant is terminated from the
  290  impaired practitioner program for material noncompliance with a
  291  participant contract, inability to progress, or any other reason
  292  than completion, the consultant shall disclose If in the opinion
  293  of the consultant, after consultation with the treatment
  294  provider, an impaired licensee has not progressed satisfactorily
  295  in a treatment program, all information regarding the issue of a
  296  licensee’s impairment and participation in a treatment program
  297  in the consultant’s possession relating to the practitioner
  298  shall be disclosed to the department. Such disclosure shall
  299  constitute a complaint pursuant to the general provisions of s.
  300  456.073. In addition, whenever the consultant concludes that
  301  impairment affects a practitioner’s licensee’s practice and
  302  constitutes an immediate, serious danger to the public health,
  303  safety, or welfare, the consultant shall immediately communicate
  304  such that conclusion shall be communicated to the department and
  305  disclose all information in the consultant’s possession relating
  306  to the practitioner to the department State Surgeon General.
  307         (12)All information obtained by the consultant pursuant to
  308  this section is confidential and exempt from s. 119.07(1) and s.
  309  24(a), Art. I of the State Constitution.
  310         (13)(7) A consultant, or a director, officer, employee, or
  311  agent of a consultant, may not be held liable financially or may
  312  not have a cause of action for damages brought against him or
  313  her for making a disclosure pursuant to this section, for any
  314  other action or omission relating to the impaired practitioner
  315  program, or for the consequences of such disclosure or action or
  316  omission, including, without limitation, action by the
  317  department against a license, registration, or certification
  318  licensee, or approved treatment provider who makes a disclosure
  319  pursuant to this section is not subject to civil liability for
  320  such disclosure or its consequences.
  321         (14) The provisions of s. 766.101 apply to any consultant
  322  and the consultant’s directors, officers, employees, or agents
  323  in regards to providing information relating to a participant to
  324  a medical review committee if the participant authorizes such
  325  disclosure officer, employee, or agent of the department or the
  326  board and to any officer, employee, or agent of any entity with
  327  which the department has contracted pursuant to this section.
  328         (15)(a)(8)(a) A consultant retained pursuant to this
  329  section and subsection (2), a consultant’s directors, officers,
  330  and employees, or agents and those acting at the direction of
  331  the consultant for the limited purpose of an emergency
  332  intervention on behalf of a licensee or student as described in
  333  subsection (2) when the consultant is unable to perform such
  334  intervention shall be considered agents of the department for
  335  purposes of s. 768.28 while acting within the scope of the
  336  consultant’s duties under the contract with the department if
  337  the contract complies with the requirements of this section. The
  338  contract must require that:
  339         1.The consultant indemnify the state for any liabilities
  340  incurred up to the limits set out in chapter 768.
  341         2.The consultant establish a quality assurance program to
  342  monitor services delivered under the contract.
  343         3.The consultant’s quality assurance program, treatment,
  344  and monitoring records be evaluated quarterly.
  345         4.The consultant’s quality assurance program be subject to
  346  review and approval by the department.
  347         5.The consultant operate under policies and procedures
  348  approved by the department.
  349         6.The consultant provide to the department for approval a
  350  policy and procedure manual that comports with all statutes,
  351  rules, and contract provisions approved by the department.
  352         7.The department be entitled to review the records
  353  relating to the consultant’s performance under the contract for
  354  the purpose of management audits, financial audits, or program
  355  evaluation.
  356         8.All performance measures and standards be subject to
  357  verification and approval by the department.
  358         9.The department be entitled to terminate the contract
  359  with the consultant for noncompliance with the contract.
  360         (b) In accordance with s. 284.385, the Department of
  361  Financial Services shall defend any claim, suit, action, or
  362  proceeding, including a claim, suit, action, or proceeding for
  363  injunctive, affirmative, or declaratory relief, against the
  364  consultant, or the consultant’s directors, officers, or
  365  employees, and agents brought as the result of any action or
  366  omission relating to the impaired practitioner program or those
  367  acting at the direction of the consultant for the limited
  368  purpose of an emergency intervention on behalf of a licensee or
  369  student as described in subsection (2) when the consultant is
  370  unable to perform such intervention, which claim, suit, action,
  371  or proceeding is brought as a result of an act or omission by
  372  any of the consultant’s officers and employees and those acting
  373  under the direction of the consultant for the limited purpose of
  374  an emergency intervention on behalf of the licensee or student
  375  when the consultant is unable to perform such intervention, if
  376  the act or omission arises out of and is in the scope of the
  377  consultant’s duties under its contract with the department.
  378         (16)(c) If a the consultant retained by the department
  379  pursuant to this section subsection (2) is also retained by
  380  another any other state agency to operate an impaired
  381  practitioner program for that agency, this section also applies
  382  to the consultant’s operation of an impaired practitioner
  383  program for that agency, and if the contract between such state
  384  agency and the consultant complies with the requirements of this
  385  section, the consultant, the consultant’s officers and
  386  employees, and those acting under the direction of the
  387  consultant for the limited purpose of an emergency intervention
  388  on behalf of a licensee or student as described in subsection
  389  (2) when the consultant is unable to perform such intervention
  390  shall be considered agents of the state for the purposes of this
  391  section while acting within the scope of and pursuant to
  392  guidelines established in the contract between such state agency
  393  and the consultant.
  394         (17)(9)A An impaired practitioner consultant is the
  395  official custodian of records relating to the referral of an
  396  impaired licensee or applicant to that consultant and any other
  397  interaction between the licensee or applicant and the
  398  consultant. The consultant may disclose to a referral or
  399  participant documents, records, or other information from the
  400  consultant’s file on the referral or participant the impaired
  401  licensee or applicant or his or her designee any information
  402  that is disclosed to or obtained by the consultant or that is
  403  confidential under paragraph (6)(a), but only to the extent that
  404  it is necessary to do so to carry out the consultant’s duties
  405  under the impaired practitioner program and this section, or as
  406  otherwise required by law. The department, and any other entity
  407  that enters into a contract with the consultant to receive the
  408  services of the consultant, has direct administrative control
  409  over the consultant to the extent necessary to receive
  410  disclosures from the consultant as allowed by federal law. If a
  411  disciplinary proceeding is pending, a referral or participant
  412  may obtain a complete copy of the consultant’s file from the
  413  department as provided by an impaired licensee may obtain such
  414  information from the department under s. 456.073.
  415         (18)(a)The consultant may contract with a school or
  417  ================= T I T L E  A M E N D M E N T ================
  418  And the title is amended as follows:
  419         Delete line 26
  420  and insert:
  421         practitioners; making technical changes; requiring the
  422         department to refer