64B-7.002. Disciplinary Guidelines

(1) In imposing discipline on a pain-management clinic, its owner, designated physician or other persons as particularly indicated in paragraphs (2)(a) through (hh), the department shall act in accordance with these disciplinary guidelines and shall impose a penalty within the range corresponding to the severity and repetition of the violations unless the department finds it necessary to deviate from the guidelines in accordance with this rule. Any and all offenses listed are sufficient grounds for the initial refusal of registration to an applicant. The department shall recover the costs of the investigation and prosecution of the case as well as imposing the appropriate penalty. In addition to any other penalty, if the violation includes proof of intentional fraud or fraudulent misrepresentation, the department shall impose a penalty of $10,000 per count or offense. When the penalty is suspension, the period of suspension for the registration of the clinic shall not exceed one year.

(2) Violations and Range of Penalties:

(a) A clinic whose owner or designated physician has failed to comply with any requirement of Chapter 499, the Florida Drug and Cosmetic Act; 21 U.S.C. ss. 301-392, the Federal Food, Drug, and Cosmetic Act; 21 U.S.C. ss. 821 et seq., the Drug Abuse Prevention and Control Act; or Chapter 893, the Florida Comprehensive Drug Abuse Prevention and Control Act. (Sections 458.3265(5)(a), 459.0137(5)(a), F.S.). First offense  a fine of up to $5,000 per violation and six months probation to one year suspension or revocation. For a subsequent offense, a fine of up to $5,000 per violation and a minimum of one year suspension to revocation.

(b) An owner-operated clinic whose designated physician has knowingly and intentionally misrepresented actions taken to correct a violation. (Sections 458.3265(5)(c), 459.0137(5)(c), F.S.). First offense  a fine of up to $5,000 and up to revocation. For a subsequent offense, a fine of $5,000 and revocation. For a clinic not owner-operated, for a first offense a fine of up to $5,000. For a subsequent offense, a fine of $5,000.

(c) An owner or designated physician who has concurrently operated an unregistered pain-management clinic. (Sections 458.3265(5)(d), 459.0137(5)(d), F.S.). First offense  a fine of $5,000 per day. For a subsequent offense, a fine of $5,000 per day.

(d) An owner who has failed to apply to register a clinic that requires registration upon change of ownership and has operated the clinic under new ownership. (Sections 458.3265(5)(e), 459.0137(5)(e), F.S.). First offense  a fine of up to $5,000. For a subsequent offense, a fine of $5,000.

(e) A clinic whose owner or designated physician has aided, assisted, procured, employed or advised any unlicensed person or entity to practice contrary to Chapter 458, 459, or the rules of the department or the appropriate board. (Section 456.072(1)(j), F.S.). First offense  a fine of $5,000 and/or up to one year suspension or revocation. For a subsequent offense, a fine of $5,000 per violation and revocation.

(f) A clinic whose owner or designated physician has registered a pain-management clinic through misrepresentation, fraud, or by making a false or fraudulent representation. (Section 456.072(2)(d), F.S.). A fine of $10,000 per count or offense and up to one year suspension or revocation.

(g) A clinic whose owner or designated physician has been convicted of or pled guilty or nolo contendere to, regardless of adjudication, an offense that constitutes a felony for receipt of illicit and diverted drugs, including a controlled substance listed in Schedule I, II, III, IV or V of Section 893.03, F.S., in this state, any other state, or the United States. (Sections 458.3265(1)(e) and (f), 459.0137(1)(e) and (f), F.S). Revocation unless more than ten years have passed since the conviction and the owner has received recognition from the Governor for providing extraordinary service to the state.

(h) A clinic whose owner or designated physician has been convicted of, or entered a plea of guilty or nolo contendere to, regardless of adjudication, a crime in any jurisdiction of the courts of this state, of any other state, or of the United States which relates to the practice of, or the ability to practice, a licensed health care profession. (Section 456.072(1)(c), F.S.). First offense, a fine of up to $5,000 and up to one year suspension or revocation. For a subsequent offense, a fine of $5,000 and revocation.

(i) A clinic whose owner or designated physician has been convicted of, or entered a plea of guilty or nolo contendere to, regardless of adjudication, a crime in any jurisdiction of the courts of this state, of any other state, or of the United States which relates to health care fraud. (Sections 456.072(1)(ll), F.S.). First offense, a fine of $10,000 and up to one year suspension or revocation. For a subsequent offense, a fine of $10,000 and revocation.

(j) A clinic whose owner or designated physician has been convicted of, or entered a plea of guilty or nolo contendere to, any misdemeanor or felony, regardless of adjudication, under 18 U.S.C. s. 669, ss. 285-287, s. 371, s. 1001, s. 1035, s. 1341, s. 1343, s. 1347, s. 1349, or s. 1518, or 42 U.S.C. ss. 1320a-7b, relating to the Medicaid program. (Section 456.072(1)(ii), F.S.). First offense, a fine of up to $5,000 and one year suspension to revocation. For a subsequent offense, a fine of $5,000 and revocation.

(k) A clinic whose owner has failed to timely notify the department of the date that the designated physician has terminated from a pain-management clinic as required by Section 458.3265(1)(c) or 459.0137(1)(c), F.S. (Sections 458.3265(5)(a), 459.0137(5)(a), F.S.). First offense, a fine of up to $3,500. For a subsequent offense, a fine of up to $5,000.

(l) A clinic whose owner or designated physician has promoted or advertised through any communication media the use, sale, or dispensing of any controlled substance appearing on any schedule in Chapter 893, F.S. (Sections 458.331(1)(qq), 459.015(1)(ss), F.S.). First offense, a fine of up to $5,000 and a reprimand and six months to one year suspension. For a subsequent offense, a fine of up to $5,000 and up to one year suspension or revocation.

(m) A clinic whose owner or designated physician has made misleading, deceptive, or fraudulent representations in or related to the practice. (Section 456.072(1)(a), F.S.) First offense, a fine of $10,000 and from a reprimand to one year suspension. For a subsequent offense, a fine of $10,000 and one year suspension or revocation.

(n) A clinic whose owner or designated physician has intentionally violated any rule adopted by the board or the department as appropriate. (Section 456.072(1)(b), F.S.) First offense, a fine of up to $5,000 and from one year probation up to one year suspension or revocation. For a subsequent offense, a fine of $5,000 and up to one year suspension or revocation.

(o) A clinic whose owner or designated physician or clinic owner whose designated physician has experienced having a license or the authority to practice any regulated profession revoked, suspended, or otherwise acted against, including denial, by the licensing authority of any jurisdiction for what would be a violation under Florida law. (Section 456.072(1)(f), F.S.) First offense, a fine of up to $5,000 and up to one year suspension or revocation considering what the penalty would have been had the offense occurred in Florida. For a subsequent offense, a fine of up to $5,000 and up to one year suspension or revocation considering what the penalty would have been had the subsequent offense occurred in Florida.

(p) A clinic whose owner or designated physician or clinic owner whose designated physician has attempted to obtain or has obtained the registration by bribery, by fraudulent misrepresentation, or through an error of the department or a board. (Section 456.072(1)(h), F.S.) First offense not involving fraudulent misrepresentation, a fine of up to $5,000 and up to one year suspension or revocation. For a subsequent offense not involving fraudulent misrepresentation, a fine of up to $5,000 and one year suspension or revocation. The fine portion of the penalty is $10,000 for an offense involving fraudulent misrepresentation.

(q) A clinic whose owner or designated physician has failed to report to the department any person known to be in violation of Chapter 456, 458 or 459, F.S., or the rules of the department or board. (Section 456.072(1)(i), F.S.) First offense, a fine of up to $3,000 and up to one year suspension. For a subsequent offense, a fine of up to $5,000 and one year suspension or revocation.

(r) A clinic whose owner or designated physician has failed to perform any statutory or legal obligation (Section 456.072(1)(k), F.S.). First offense, from a fine of up to $5,000 and/or from a three month to one year suspension. For a subsequent offense, a fine of up to $5,000 and from one year probation to one year suspension or revocation.

(s) A clinic whose designated physician on behalf of the registered clinic has made or filed a report known to be false, intentionally or negligently failed to file a report required by state or federal law, or willfully impeded or obstructed another from filing. Such reports or records shall include only those signed on behalf or in the capacity of a registered clinic (Section 456.072(1)(l), F.S.). First offense, a fine of up to $5,000 and up to one year suspension. For a subsequent offense, a fine of $5,000 and up to one year suspension or revocation. The fine portion of the penalty is $10, 000 for an offense involving a false or fraudulent representation.

(t) A clinic whose owner or designated physician has made deceptive, untrue, or fraudulent representations or employed a trick or scheme related to the operation of the business (Section 456.072(1)(m), F.S.). First offense, a fine of up to $5,000 and/or probation to one year suspension or revocation. For a subsequent offense, a fine of $5,000 and revocation. The fine portion of the penalty is $10,000 for an offense involving deceptive, untrue or fraudulent representation.

(u) A clinic whose designated physician or practicing physician has exercised influence on a patient or client for the purpose of financial gain of the clinic licensee or a third party. (Section 456.072(1)(n), F.S.). First offense, a fine of up to $5,000 and from one year probation to one year suspension or revocation. For a subsequent offense, a fine of up to $5,000 and one year suspension or revocation.

(v) A clinic whose physician or other employee has practiced or offered to practice beyond the scope permitted by law or has accepted and performed professional responsibilities that the owner and/or designated physician know that the clinic employee is not competent to perform. (Section 456.072(1)(o), F.S.). First offense, a fine of up to $5,000 and up to one year suspension or revocation. For a subsequent offense, a fine of up to $5,000 and revocation.

(w) A clinic whose owner or designated physician or clinic owner whose designated physician has delegated or contracted for the performance of professional responsibilities by a person when the owner or designated physician delegating or contracting for performance of the responsibilities knows, or has reason to know that the person is not qualified by training, experience, and authorization to perform when required to perform them. (Section 456.072(1)(p), F.S.). First offense, a fine of up to $5,000 and from one year probation to up to one year suspension or revocation. For a subsequent offense, a fine of up to $5,000 and one year suspension or revocation.

(x) A clinic whose owner or designated physician has violated an order of the department or the appropriate board, or has failed to comply with subpoena of the department (Section 456.072(1)(q), F.S.). First offense, a fine of up to $5,000 and from a reprimand to up to one year suspension. For a subsequent offense, a fine of $5,000 and one year suspension or revocation.

(y) A clinic whose owner or designated physician or clinic owner whose designated physician has improperly interfered with an investigation, inspection, or disciplinary proceeding (Section 456.072(1)(r), F.S.). First offense, a fine of up to $5,000 and up to one year suspension or revocation. For a subsequent offense, a fine of $5,000 and revocation.

(z) A clinic whose practicing physician or other health care practitioner has failed to identify through written notice, which may include the wearing of a name tag, or orally to a patient the type of license under which the practitioner is practicing at the clinic (Section 456.072(1)(t), F.S.). First offense, a fine of up to $2,500 and/or up to a three month suspension. For a subsequent offense, a fine of up to $5,000 and up to one year of suspension of registration.

(aa) A clinic whose designated physician and the designated physician who has failed to comply with Sections 381.026 and 381.0261, F.S., requirements to provide patients with information about patient rights and how to file a patient complaint (Section 456.072(1)(u), F.S.). First offense, a fine of up to $3,500 and a reprimand up to a six month suspension. For a second offense, a fine of up to $5,000 and from one year probation to up to one year suspension. For a subsequent offense, a fine of $5,000 and one year suspension or revocation.

(bb) A clinic whose owner or designated physician or clinic owner whose designated physician has failed to report to the department in writing within 30 days after having been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction. (Section 456.072(1)(x), F.S.). First offense, a fine of up to $2,500 and up to a six month suspension. For a subsequent offense, a fine of $5,000 and one year suspension or revocation.

(cc) A clinic whose owner or designated physician has violated any applicable provision of Chapter 456, 458 or 459, F.S., or the rules of these chapters (Section 456.072(1)(dd), F.S.). First offense, from a fine of up to $5,000 and from six months probation to one year suspension. For a subsequent offense, a fine of up to $5,000 and up to a one year suspension or revocation.

(dd) A clinic whose designated physician or practicing physician has, with respect to making a personal injury protection claim as required by Section 627.736, F.S., intentionally submitted a claim, statement, or bill that has been “upcoded” as defined in Section 627.732, F.S. (Section 456.072(1)(ee), F.S.). First offense, a fine of up to $5,000 and from a reprimand up to one year suspension. For a subsequent offense, a fine of up to $5,000 and up to one year suspension or revocation.

(ee) A clinic whose designated physician or practicing physician has, with respect to making a personal injury protection claim as required by Section 627.736, F.S., intentionally submitted a claim, statement, or bill for payment of services that were not rendered. (Section 456.072(1)(ff), F.S.). First offense, a fine of up to $5,000 and from one year of probation to revocation. For a subsequent offense, a fine of up to $5,000 and one year suspension or revocation.

(ff) A clinic whose designated physician or practicing physician has engaged in a pattern of practice when prescribing drugs or controlled substances which demonstrates a lack of reasonable skill and safety to patients or a violation of Chapter 456, 458 or 459, F.S., or any applicable rules. (Section 456.072(1)(gg), F.S.). First offense, a fine of up to $5,000 and up to one year suspension or revocation. For a subsequent offense, a fine of up to $5,000 and one year suspension or revocation.

(gg) A clinic or owner whose designated physician or practicing physician has failed to remit the sum owed to the state for an overpayment from the Medicaid program pursuant to a final order, judgment, or stipulation or settlement (Section 456.072(1)(jj), F.S.). First offense, from a minimum fine equal to the lesser of the amount owed to the state for an overpayment or up to $5,000 and from 6 months probation to one year suspension or revocation. For a subsequent offense, a fine of up to $5,000 and up to a one year suspension or revocation.

(hh) A clinic whose designated physician or practicing physician has been terminated from the state Medicaid program, any other state Medicaid program, or the federal Medicare program, unless eligibility has been restored. (Section 456.072(1)(kk), F.S.). First offense, from a fine of up to $5,000 and from one year suspension to revocation. For a subsequent offense, a fine of $5,000 and revocation.

(3) The range of disciplinary penalties which the department is authorized to impose includes those set forth in Sections 456.072, 458.3265(1) and (5), or 459.0137(1) and (5), F.S. In determining the appropriate disciplinary action to be imposed in each case, the department shall take into consideration the mitigating and aggravating factors described in Sections 458.3265(5) or 459.0137(5), F.S. The final order shall explain the mitigating or aggravating circumstances used to justify any deviation from the specified guidelines.

(4) Stipulation or Settlements. The provisions of this rule are not intended and shall not be construed to limit the ability of the department to dispose informally of disciplinary actions by stipulation, agreed settlement, or consent order pursuant to Section 120.57(4), F.S.

(5) Other Action. The provisions of this rule are not intended to and shall not be construed to limit the ability of the department to pursue collateral civil or criminal actions when appropriate.

Rulemaking Authority 456.079, 458.3265, 459.0137 FS. Law Implemented 456.072(1), (2), 458.3265(1), (5), 458.327, 458.331, 459.0137(1), (5), 459.013, 459.015 FS. HistoryNew 1-5-12, Amended 11-5-14.