Florida Senate - 2017                        COMMITTEE AMENDMENT
       Bill No. SB 876
       
       
       
       
       
       
                                Ì420676<Î420676                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                   Comm: RS            .                                
                  03/14/2017           .                                
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       The Committee on Health Policy (Young) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 88 - 492
    4  and insert:
    5         (e)“Impairment” means an impairing health condition that
    6  is the result of the misuse or abuse of alcohol, drugs, or both,
    7  or a mental or physical condition that could affect a
    8  practitioner’s ability to practice with skill and safety.
    9         (f)“Inability to progress” means a determination by a
   10  consultant based on a participant’s response to treatment and
   11  prognosis that the participant is unable to safely practice
   12  despite compliance with treatment requirements and his or her
   13  participant contract.
   14         (g)“Material noncompliance” means an act or omission by a
   15  participant in violation of his or her participant contract as
   16  determined by the department or consultant.
   17         (h)“Participant” means a practitioner who is participating
   18  in the impaired practitioner program by having entered into a
   19  participant contract. A practitioner ceases to be a participant
   20  when the participant contract is successfully completed or is
   21  terminated for any reason.
   22         (i)“Participant contract” means a formal written document
   23  outlining the requirements established by a consultant for a
   24  participant to successfully complete the impaired practitioner
   25  program, including the participant’s monitoring plan.
   26         (j)“Practitioner” means a person licensed, registered,
   27  certified, or regulated by the department under part III of
   28  chapter 401; chapter 457; chapter 458; chapter 459; chapter 460;
   29  chapter 461; chapter 462; chapter 463; chapter 464; chapter 465;
   30  chapter 466; chapter 467; part I, part II, part III, part V,
   31  part X, part XIII, or part XIV of chapter 468; chapter 478;
   32  chapter 480; part III or part IV of chapter 483; chapter 484;
   33  chapter 486; chapter 490; or chapter 491; or an applicant for a
   34  license, registration, or certification under the same laws.
   35         (k)“Referral” means a practitioner who has been referred,
   36  either as a self-referral or otherwise, or reported to a
   37  consultant for impaired practitioner program services, but who
   38  is not under a participant contract.
   39         (l)“Treatment program” means a department- or consultant
   40  approved residential, intensive outpatient, partial
   41  hospitalization or other program through which an impaired
   42  practitioner is treated based on the impaired practitioner’s
   43  diagnosis and the treatment plan approved by the consultant.
   44         (m)“Treatment provider” means a department- or consultant
   45  approved state-licensed or nationally certified individual who
   46  provides treatment to an impaired practitioner based on the
   47  practitioner’s individual diagnosis and a treatment plan
   48  approved by the consultant For professions that do not have
   49  impaired practitioner programs provided for in their practice
   50  acts, the department shall, by rule, designate approved impaired
   51  practitioner programs under this section. The department may
   52  adopt rules setting forth appropriate criteria for approval of
   53  treatment providers. The rules may specify the manner in which
   54  the consultant, retained as set forth in subsection (2), works
   55  with the department in intervention, requirements for evaluating
   56  and treating a professional, requirements for continued care of
   57  impaired professionals by approved treatment providers,
   58  continued monitoring by the consultant of the care provided by
   59  approved treatment providers regarding the professionals under
   60  their care, and requirements related to the consultant’s
   61  expulsion of professionals from the program.
   62         (2)(a) The department may shall retain one or more impaired
   63  practitioner consultants to operate its impaired practitioner
   64  program. Each consultant who are each licensees under the
   65  jurisdiction of the Division of Medical Quality Assurance within
   66  the department and who must be:
   67         (a)1. A practitioner or recovered practitioner licensed
   68  under chapter 458, chapter 459, or part I of chapter 464; or
   69         (b)2. An entity that employs:
   70         1.a. A medical director who is must be a practitioner or
   71  recovered practitioner licensed under chapter 458 or chapter
   72  459; or
   73         2.b. An executive director who is must be a registered
   74  nurse or a recovered registered nurse licensed under part I of
   75  chapter 464.
   76         (3)The terms and conditions of the impaired practitioner
   77  program must be established by the department by contract with a
   78  consultant for the protection of the health, safety, and welfare
   79  of the public and must provide, at a minimum, that the
   80  consultant:
   81         (a)Accepts referrals;
   82         (b)Arranges for the evaluation and treatment of impaired
   83  practitioners by a treatment provider, when the consultant deems
   84  the evaluation and treatment necessary;
   85         (c)Monitors the recovery progress and status of impaired
   86  practitioners to ensure that such practitioners are able to
   87  practice their profession with skill and safety. Such monitoring
   88  must continue until the consultant or department concludes that
   89  monitoring by the consultant is no longer required for the
   90  protection of the public or until the practitioner’s
   91  participation in the program is terminated for material
   92  noncompliance or inability to progress; and
   93         (d)Does not directly evaluate, treat, or otherwise provide
   94  patient care to a practitioner in the operation of the impaired
   95  practitioner program.
   96         (4)The department shall specify, in its contract with each
   97  consultant, the types of licenses, registrations, or
   98  certifications of the practitioners to be served by that
   99  consultant.
  100         (5)A consultant shall enter into a participant contract
  101  with an impaired practitioner and shall establish the terms of
  102  monitoring and shall include the terms in a participant
  103  contract. In establishing the terms of monitoring, the
  104  consultant may consider the recommendations of one or more
  105  approved evaluators, treatment programs, or treatment providers.
  106  A consultant may modify the terms of monitoring if the
  107  consultant concludes, through the course of monitoring, that
  108  extended, additional, or amended terms of monitoring are
  109  required for the protection of the health, safety, and welfare
  110  of the public.
  111         (6)(b)A An entity retained as an impaired practitioner
  112  consultant under this section which employs a medical director
  113  or an executive director is not required to be licensed as a
  114  substance abuse provider or mental health treatment provider
  115  under chapter 394, chapter 395, or chapter 397 for purposes of
  116  providing services under this program.
  117         (7)(c)1.Each The consultant shall assist the department
  118  and licensure boards on matters of impaired practitioners,
  119  including the determination of probable cause panel and the
  120  department in carrying out the responsibilities of this section.
  121  This includes working with department investigators to determine
  122  whether a practitioner is, in fact, impaired, as specified in
  123  the consultant’s contract with the department.
  124         2.The consultant may contract with a school or program to
  125  provide services to a student enrolled for the purpose of
  126  preparing for licensure as a health care practitioner as defined
  127  in this chapter or as a veterinarian under chapter 474 if the
  128  student is allegedly impaired as a result of the misuse or abuse
  129  of alcohol or drugs, or both, or due to a mental or physical
  130  condition. The department is not responsible for paying for the
  131  care provided by approved treatment providers or a consultant.
  132         (d)A medical school accredited by the Liaison Committee on
  133  Medical Education or the Commission on Osteopathic College
  134  Accreditation, or another school providing for the education of
  135  students enrolled in preparation for licensure as a health care
  136  practitioner as defined in this chapter or a veterinarian under
  137  chapter 474 which is governed by accreditation standards
  138  requiring notice and the provision of due process procedures to
  139  students, is not liable in any civil action for referring a
  140  student to the consultant retained by the department or for
  141  disciplinary actions that adversely affect the status of a
  142  student when the disciplinary actions are instituted in
  143  reasonable reliance on the recommendations, reports, or
  144  conclusions provided by such consultant, if the school, in
  145  referring the student or taking disciplinary action, adheres to
  146  the due process procedures adopted by the applicable
  147  accreditation entities and if the school committed no
  148  intentional fraud in carrying out the provisions of this
  149  section.
  150         (8)(3)Before issuing an approval of, or intent to deny, an
  151  application for licensure, each board and profession within the
  152  Division of Medical Quality Assurance may delegate to its chair
  153  or other designee its authority to determine, before certifying
  154  or declining to certify an application for licensure to the
  155  department, that an applicant for licensure under its
  156  jurisdiction may have an impairment be impaired as a result of
  157  the misuse or abuse of alcohol or drugs, or both, or due to a
  158  mental or physical condition that could affect the applicant’s
  159  ability to practice with skill and safety. Upon such
  160  determination, the chair or other designee may refer the
  161  applicant to the consultant to facilitate for an evaluation
  162  before the board issues an approval of, certifies or intent to
  163  deny, declines to certify his or her application to the
  164  department. If the applicant agrees to be evaluated by the
  165  consultant, the department’s deadline for approving or denying
  166  the application pursuant to s. 120.60(1) is tolled until the
  167  evaluation is completed and the result of the evaluation and
  168  recommendation by the consultant is communicated to the board by
  169  the consultant. If the applicant declines to be evaluated by the
  170  consultant, the board shall issue an approval of, or intent to
  171  deny, certify or decline to certify the applicant’s application
  172  to the department notwithstanding the lack of an evaluation and
  173  recommendation by the consultant.
  174         (9)(a)(4)(a)When Whenever the department receives a
  175  written or oral legally sufficient complaint alleging that a
  176  practitioner has an impairment licensee under the jurisdiction
  177  of the Division of Medical Quality Assurance within the
  178  department is impaired as a result of the misuse or abuse of
  179  alcohol or drugs, or both, or due to a mental or physical
  180  condition which could affect the licensee’s ability to practice
  181  with skill and safety, and no complaint exists against the
  182  practitioner licensee other than impairment exists, the
  183  department shall refer the practitioner to the consultant, along
  184  with all information in the department’s possession relating to
  185  the impairment. The impairment does reporting of such
  186  information shall not constitute grounds for discipline pursuant
  187  to s. 456.072 or the corresponding grounds for discipline within
  188  the applicable practice act if the probable cause panel of the
  189  appropriate board, or the department when there is no board,
  190  finds:
  191         1. The practitioner licensee has acknowledged the
  192  impairment; problem.
  193         2. The practitioner becomes a participant licensee has
  194  voluntarily enrolled in an impaired practitioner program and
  195  successfully completes a participant contract under terms
  196  established by the consultant; appropriate, approved treatment
  197  program.
  198         3. The practitioner licensee has voluntarily withdrawn from
  199  practice or has limited the scope of his or her practice if as
  200  required by the consultant;, in each case, until such time as
  201  the panel, or the department when there is no board, is
  202  satisfied the licensee has successfully completed an approved
  203  treatment program.
  204         4. The practitioner licensee has provided to the
  205  consultant, or has authorized the consultant to obtain, all
  206  records and information relating to the impairment from any
  207  source and all other medical records of the practitioner
  208  requested by the consultant; and executed releases for medical
  209  records, authorizing the release of all records of evaluations,
  210  diagnoses, and treatment of the licensee, including records of
  211  treatment for emotional or mental conditions, to the consultant.
  212  The consultant shall make no copies or reports of records that
  213  do not regard the issue of the licensee’s impairment and his or
  214  her participation in a treatment program.
  215         5.The practitioner has authorized the consultant, in the
  216  event of the practitioner’s termination from the impaired
  217  practitioner program, to report the termination to the
  218  department and provide the department with copies of all
  219  information in the consultant’s possession relating to the
  220  practitioner.
  221         (b) To encourage practitioners who are or may be impaired
  222  to voluntarily self-refer to a consultant, the consultant may
  223  not provide information to the department relating to a self
  224  referring participant if the consultant has no knowledge of a
  225  pending department investigation, complaint, or disciplinary
  226  action against the participant and if the participant is in
  227  compliance with the terms of the impaired practitioner program
  228  and any participant contract, unless authorized by the
  229  participant If, however, the department has not received a
  230  legally sufficient complaint and the licensee agrees to withdraw
  231  from practice until such time as the consultant determines the
  232  licensee has satisfactorily completed an approved treatment
  233  program or evaluation, the probable cause panel, or the
  234  department when there is no board, shall not become involved in
  235  the licensee’s case.
  236         (c)Inquiries related to impairment treatment programs
  237  designed to provide information to the licensee and others and
  238  which do not indicate that the licensee presents a danger to the
  239  public shall not constitute a complaint within the meaning of s.
  240  456.073 and shall be exempt from the provisions of this
  241  subsection.
  242         (d)Whenever the department receives a legally sufficient
  243  complaint alleging that a licensee is impaired as described in
  244  paragraph (a) and no complaint against the licensee other than
  245  impairment exists, the department shall forward all information
  246  in its possession regarding the impaired licensee to the
  247  consultant. For the purposes of this section, a suspension from
  248  hospital staff privileges due to the impairment does not
  249  constitute a complaint.
  250         (e)The probable cause panel, or the department when there
  251  is no board, shall work directly with the consultant, and all
  252  information concerning a practitioner obtained from the
  253  consultant by the panel, or the department when there is no
  254  board, shall remain confidential and exempt from the provisions
  255  of s. 119.07(1), subject to the provisions of subsections (6)
  256  and (7).
  257         (f)A finding of probable cause shall not be made as long
  258  as the panel, or the department when there is no board, is
  259  satisfied, based upon information it receives from the
  260  consultant and the department, that the licensee is progressing
  261  satisfactorily in an approved impaired practitioner program and
  262  no other complaint against the licensee exists.
  263         (10)(5) In any disciplinary action for a violation other
  264  than impairment in which a practitioner licensee establishes the
  265  violation for which the practitioner licensee is being
  266  prosecuted was due to or connected with impairment and further
  267  establishes the practitioner licensee is satisfactorily
  268  progressing through or has successfully completed an impaired
  269  practitioner program approved treatment program pursuant to this
  270  section, such information may be considered by the board, or the
  271  department when there is no board, as a mitigating factor in
  272  determining the appropriate penalty. This subsection does not
  273  limit mitigating factors the board may consider.
  274         (11)(a)(6)(a)Upon request by the consultant, and with the
  275  authorization of the practitioner when required by law, an
  276  approved evaluator, treatment program, or treatment provider
  277  shall, upon request, disclose to the consultant all information
  278  in its possession regarding a referral or participant the issue
  279  of a licensee’s impairment and participation in the treatment
  280  program. All information obtained by the consultant and
  281  department pursuant to this section is confidential and exempt
  282  from the provisions of s. 119.07(1), subject to the provisions
  283  of this subsection and subsection (7). Failure to provide such
  284  information to the consultant is grounds for withdrawal of
  285  approval of such evaluator, treatment program, or treatment
  286  provider.
  287         (b) When a referral or participant is terminated from the
  288  impaired practitioner program for material noncompliance with a
  289  participant contract, inability to progress, or any other
  290  reason, the consultant shall disclose If in the opinion of the
  291  consultant, after consultation with the treatment provider, an
  292  impaired licensee has not progressed satisfactorily in a
  293  treatment program, all information regarding the issue of a
  294  licensee’s impairment and participation in a treatment program
  295  in the consultant’s possession relating to the practitioner
  296  shall be disclosed to the department. Such disclosure shall
  297  constitute a complaint pursuant to the general provisions of s.
  298  456.073. In addition, whenever the consultant concludes that
  299  impairment affects a practitioner’s licensee’s practice and
  300  constitutes an immediate, serious danger to the public health,
  301  safety, or welfare, the consultant shall immediately communicate
  302  such that conclusion shall be communicated to the department and
  303  disclose all information in the consultant’s possession relating
  304  to the practitioner to the department State Surgeon General.
  305         (12)All information obtained by the consultant pursuant to
  306  this section is confidential and exempt from s. 119.07(1) and s.
  307  24(a), Art. I of the State Constitution.
  308         (13)(7) A consultant, or a director, officer, employee, or
  309  agent of a consultant, may not be held liable financially or may
  310  not have a cause of action for damages brought against him or
  311  her for making a disclosure pursuant to this section, for any
  312  other action or omission relating to the impaired practitioner
  313  program, or for the consequences of such disclosure or action or
  314  omission, including, without limitation, action by the
  315  department against a license, registration, or certification
  316  licensee, or approved treatment provider who makes a disclosure
  317  pursuant to this section is not subject to civil liability for
  318  such disclosure or its consequences.
  319         (14) The provisions of s. 766.101 apply to any consultant
  320  and the consultant’s directors, officers, employees, or agents
  321  in regards to providing information relating to a participant to
  322  a medical review committee if the participant authorizes such
  323  disclosure officer, employee, or agent of the department or the
  324  board and to any officer, employee, or agent of any entity with
  325  which the department has contracted pursuant to this section.
  326         (15)(a)(8)(a) A consultant retained pursuant to this
  327  section and subsection (2), a consultant’s directors, officers,
  328  and employees, or agents and those acting at the direction of
  329  the consultant for the limited purpose of an emergency
  330  intervention on behalf of a licensee or student as described in
  331  subsection (2) when the consultant is unable to perform such
  332  intervention shall be considered agents of the department for
  333  purposes of s. 768.28 while acting within the scope of the
  334  consultant’s duties under the contract with the department if
  335  the contract complies with the requirements of this section. The
  336  contract must require that:
  337         1.The consultant indemnify the state for any liabilities
  338  incurred up to the limits set out in chapter 768.
  339         2.The consultant establish a quality assurance program to
  340  monitor services delivered under the contract.
  341         3.The consultant’s quality assurance program, treatment,
  342  and monitoring records be evaluated quarterly.
  343         4.The consultant’s quality assurance program be subject to
  344  review and approval by the department.
  345         5.The consultant operate under policies and procedures
  346  approved by the department.
  347         6.The consultant provide to the department for approval a
  348  policy and procedure manual that comports with all statutes,
  349  rules, and contract provisions approved by the department.
  350         7.The department be entitled to review the records
  351  relating to the consultant’s performance under the contract for
  352  the purpose of management audits, financial audits, or program
  353  evaluation.
  354         8.All performance measures and standards be subject to
  355  verification and approval by the department.
  356         9.The department be entitled to terminate the contract
  357  with the consultant for noncompliance with the contract.
  358         (b) In accordance with s. 284.385, the Department of
  359  Financial Services shall defend any claim, suit, action, or
  360  proceeding, including a claim, suit, action, or proceeding for
  361  injunctive, affirmative, or declaratory relief, against the
  362  consultant, or the consultant’s directors, officers, or
  363  employees, and agents brought as the result of any action or
  364  omission relating to the impaired practitioner program or those
  365  acting at the direction of the consultant for the limited
  366  purpose of an emergency intervention on behalf of a licensee or
  367  student as described in subsection (2) when the consultant is
  368  unable to perform such intervention, which claim, suit, action,
  369  or proceeding is brought as a result of an act or omission by
  370  any of the consultant’s officers and employees and those acting
  371  under the direction of the consultant for the limited purpose of
  372  an emergency intervention on behalf of the licensee or student
  373  when the consultant is unable to perform such intervention, if
  374  the act or omission arises out of and is in the scope of the
  375  consultant’s duties under its contract with the department.
  376         (16)(c) If a the consultant retained by the department
  377  pursuant to this section subsection (2) is also retained by
  378  another any other state agency to operate an impaired
  379  practitioner program for that agency, this section also applies
  380  to the consultant’s operation of an impaired practitioner
  381  program for that agency, and if the contract between such state
  382  agency and the consultant complies with the requirements of this
  383  section, the consultant, the consultant’s officers and
  384  employees, and those acting under the direction of the
  385  consultant for the limited purpose of an emergency intervention
  386  on behalf of a licensee or student as described in subsection
  387  (2) when the consultant is unable to perform such intervention
  388  shall be considered agents of the state for the purposes of this
  389  section while acting within the scope of and pursuant to
  390  guidelines established in the contract between such state agency
  391  and the consultant.
  392         (17)(9)A An impaired practitioner consultant is the
  393  official custodian of records relating to the referral of an
  394  impaired licensee or applicant to that consultant and any other
  395  interaction between the licensee or applicant and the
  396  consultant. The consultant may disclose to a referral or
  397  participant documents, records, or other information from the
  398  consultant’s file on the referral or participant the impaired
  399  licensee or applicant or his or her designee any information
  400  that is disclosed to or obtained by the consultant or that is
  401  confidential under paragraph (6)(a), but only to the extent that
  402  it is necessary to do so to carry out the consultant’s duties
  403  under the impaired practitioner program and this section, or as
  404  otherwise required by law. The department, and any other entity
  405  that enters into a contract with the consultant to receive the
  406  services of the consultant, has direct administrative control
  407  over the consultant to the extent necessary to receive
  408  disclosures from the consultant as allowed by federal law. If a
  409  disciplinary proceeding is pending, a referral or participant
  410  may obtain a complete copy of the consultant’s file from the
  411  department as provided by an impaired licensee may obtain such
  412  information from the department under s. 456.073.
  413         (18)(a)The consultant may contract with a school or
  414  
  415  ================= T I T L E  A M E N D M E N T ================
  416  And the title is amended as follows:
  417         Delete line 26
  418  and insert:
  419         practitioners; making technical changes; requiring the
  420         department to refer