The board proposes the rule amendment to substantially rewrite the rule.

 

DEPARTMENT OF HEALTH

Board of Massage Therapy

RULE NO.: RULE TITLE:

64B7-30.002 Disciplinary Guidelines

PURPOSE AND EFFECT: The board proposes the rule amendment to substantially rewrite the rule.

SUMMARY: Rewrite Disciplinary Guidelines.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: During discussion of the economic impact of this rule at its Board meeting, the Board, based upon the expertise and experience of its members, determined that a Statement of Estimated Regulatory Costs (SERC) was not necessary and that the rule will not require ratification by the Legislature. No person or interested party submitted additional information regarding the economic impact at that time.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 456.072(2), 456.079(1), (3), 480.035(7) FS.

LAW IMPLEMENTED: 456.072(2), 456.079(1), (3), 480.041, 480.043, 480.046, 480.047 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Kama Monroe, Executive Director, Board of Massage Therapy/MQA, 4052 Bald Cypress Way, Bin #C06, Tallahassee, Florida 32399-3256.

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

Substantial rewording of Rule 64B7-30.002 follows.  See Florida Administrative Code for present text.

 

64B7-30.002 Disciplinary Guidelines.

(1) When the Board finds that an applicant, apprentice, or licensee whom it regulates under Chapter 480, F.S., has committed any of the acts set forth in Sections 480.041, 480.043, 480.0485, 480.046, 480.047 and 456.072, F.S., and/or Title 64B7, F.A.C., it shall issue a final order imposing appropriate penalties within the ranges recommended in the following disciplinary guidelines after consideration of the aggravating and mitigating factors set forth in subsection (4) of this rule. Discipline may include any of the following: letter of concern, reprimand, license with conditions, probation, suspension, revocation and/or fines.

(2) If the offense is for fraud or making a false or fraudulent representation, the recommended penalties are:

(a) Licensee:

1. First offense: $10,000 fine;

2. Second offense: $10,000 fine and suspension;

3. Subsequent offense: $10,000 fine and revocation.

(b) Applicant:

1. First offense: $10,000 fine and a denial of licensure;

2. Subsequent offense: $10,000 fine, denial of licensure, and prohibition on reapplication for 2 to 5 yrs.

(c) Massage Establishment:

1. $10,000, revocation of the license, and prohibition of reapplication by the holder of the license for a period of 2 yrs.

2. In addition, if owned by a Licensed Massage Therapist:

a. First offense: $10,000 fine and suspension of owner’s massage therapy license.

b. Subsequent offense: $10,000 fine and revocation of the owner’s massage therapy license.

(3) Disciplinary Guidelines

VIOLATION	FIRST OFFENSE	SECOND OFFENSE
(a) Section 480.046(1)(a) Attempting to procure a license to practice massage by bribery or fraudulent misrepresentation or Section 456.072(1)(h), F.S. Attempting to obtain, obtaining, or renewing a license to practice a profession by bribery, by fraudulent misrepresentation, or through an error of the department or the board.	Denial of application, or reprimand, $250 to $1,500 fine, continuing education.	$10,000 fine and revocation
(b) Section 480.046(1)(b) Having a license to practice massage revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of another state, territory, or country. or Section 456.072(1)(f), F.S. Having a license or the authority to practice any regulated profession revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions, for a violation that would constitute a violation under Florida law.  The licensing authority’s acceptance of a relinquishment of licensure, stipulation, consent order, or other settlement, offered in response to or in anticipation of the filing of charges against the license, shall be construed as action against the license.	Denial of application, or discipline up to revocation.	Suspension to revocation
(c) Section 480.046(1)(c) Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of massage or to the ability to practice massage. Any plea of nolo contendere shall be considered a conviction for purposes of this chapter. or Section 456.072(1)(c), F.S. Being convicted or found guilty of, or entering a plea of guilty or nolo contendere to, regardless of adjudication, a crime in any jurisdiction which relates to the practice of, or the ability to practice, a licensee’s profession.	Reprimand to revocation
(d) Section 480.041(7), F.S. The board shall deny an application for a new or renewal license if an applicant has been convicted or found guilty of, or enters a plea of guilty or nolo contendere to, regardless of adjudication, a violation of s. 796.07(2)(a) which is reclassified under s. 796.07(7) or a felony offense under any of the following provisions of state law or a similar provision in another jurisdiction: (a) Section 787.01, relating to kidnapping. (b) Section 787.02, relating to false imprisonment. (c) Section 787.025, relating to luring or enticing a child. (d) Section 787.06, relating to human trafficking. (e) Section 787.07, relating to human smuggling. (f) Section 794.011, relating to sexual battery. (g) Section 794.08, relating to female genital mutilation. (h) Former s. 796.03, relating to procuring a person under the age of 18 for prostitution. (i) Former s. 796.035, relating to the selling or buying of minors into prostitution. (j) Section 796.04, relating to forcing, compelling, or coercing another to become a prostitute. (k) Section 796.05, relating to deriving support from the proceeds of prostitution. (l) Section 796.07(4)(a)3., relating to a felony of the third degree for a third or subsequent violation of s. 796.07, relating to prohibiting prostitution and related acts. (m) Section 800.04, relating to lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age.	Denial of application or revocation
(e) Section 456.072(1)(ii) Being convicted of, or entering 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. or Section 456.072(1) (ll), F.S. Being convicted of, or entering a plea of guilty or nolo contendere to, any misdemeanor or felony, regardless of adjudication, a crime in any jurisdiction which relates to health care fraud.	Denial of application or revocation
(f) Section 480.046(1)(d), F.S. False, deceptive, or misleading advertising.	Reprimand, $500 fine to probation, $750.00 fine	Probation, $1,000 fine to revocation
(g) Section 480.046(1)(e) Advertising to induce or attempt to induce, or to engage or attempt to engage, the client in unlawful sexual misconduct as described in s. 480.0485.	Revocation
(h) Section 480.046(1)(f) Aiding, assisting, procuring, or advising any unlicensed person to practice massage contrary to the provisions of this chapter or to a rule of the department or the board. Section 456.072(1)(j) Aiding, assisting, procuring, employing, or advising any unlicensed person or entity to practice a profession contrary to this chapter, the chapter regulating the profession, or the rules of the department or the board.   Sections 480.046(1)(k), 456.072(1)(p) Delegating or contracting for the performance of professional responsibilities by a person when the licensee delegating or contracting for performance of the responsibilities knows, or has reason to know, the person is not qualified by training, experience, and authorization when required to perform them.	$100 fine and reprimand to $2,500.00 fine	Reprimand, $2,500 fine, to revocation
(i) Section 480.046(1)(g) Making deceptive, untrue, or fraudulent representations in the practice of massage.   Section 456.072(1)(a) Making misleading, deceptive, or fraudulent representations in or related to the practice of the licensee’s profession.   Section 456.072(1)(m) Making deceptive, untrue, or fraudulent representations in or related to the practice of a profession or employing a trick or scheme in or related to the practice of a profession.	Reprimand, $500 fine	Revocation, $10,000 fine
(j) Section 480.046(1)(h) Being unable to practice massage with reasonable skill and safety by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. In enforcing this paragraph, the department shall have, upon probable cause, authority to compel a massage therapist to submit to a mental or physical examination by physicians designated by the department. Failure of a massage therapist to submit to such examination when so directed, unless the failure was due to circumstances beyond her or his control, shall constitute an admission of the allegations against her or him, consequent upon which a default and final order may be entered without the taking of testimony or presentation of evidence. A massage therapist affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that she or he can resume the competent practice of massage with reasonable skill and safety to clients.   Section 456.072(1)(z) Being unable to practice with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. In enforcing this paragraph, the department shall have, upon a finding of the State Surgeon General or the State Surgeon General’s designee that probable cause exists to believe that the licensee is unable to practice because of the reasons stated in this paragraph, the authority to issue an order to compel a licensee to submit to a mental or physical examination by physicians designated by the department. If the licensee refuses to comply with the order, the department’s order directing the examination may be enforced by filing a petition for enforcement in the circuit court where the licensee resides or does business. The department shall be entitled to the summary procedure provided in s. 51.011. A licensee or certificateholder affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he or she can resume the competent practice of his or her profession with reasonable skill and safety to patients.	Suspension until PRN evaluation, contract if recommended	Revocation
(k) Section 480.046(1)(i) Gross or repeated malpractice or the failure to practice massage with that level of care, skill, and treatment which is recognized by a reasonably prudent massage therapist as being acceptable under similar conditions and circumstances.	Reprimand, $1,000 fine to $1,000 fine, suspension	$1,000 fine, suspension to revocation
(l) Section 480.046(1)(j), 456.072(1)(o) Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that she or he is not competent to perform.	$1,000 fine, probation to revocation
(m) Section 480.046(1)(l) Violating a lawful order of the board or department previously entered in a disciplinary hearing, or failing to comply with a lawfully issued subpoena of the department.   Section 456.072(1)(q) Violating a lawful order of the department or the board, or failing to comply with a lawfully issued subpoena of the department.	$250 fine and suspension until compliant to revocation
(n) Section 480.046(1)(m) Refusing to permit the department to inspect the business premises of the licensee during regular business hours.   Section 456.072(1)(r) Improperly interfering with an investigation or inspection authorized by statute, or with any disciplinary proceeding.	$500 find, suspension to $1,000 fine, suspension	$1,500 fine, suspension to revocation
(o) Section 480.046(1)(n) Failing to keep the equipment and premises of the massage establishment in a clean and sanitary condition	Reprimand, $250 fine to $1,000 fine, suspension	$2,500 fine, suspension to revocation
(p) Section 480.046(1)(o) Practicing massage at a site, location, or place which is not duly licensed as a massage establishment, except that a massage therapist, as provided by rules adopted by the board, may provide massage services, excluding colonic irrigation, at the residence of a client, at the office of the client, at a sports event, at a convention, or at a trade show.	Reprimand, $100 fine for 1st month and $50 for each succeeding month to $2,000 fine, suspension	$2,500 fine, suspension to revocation
(q) Section 480.046(1)(p) Violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto.   Section 456.072(1)(b) Intentionally violating any rule adopted by the board or the department, as appropriate.   Section 456.072(1)(dd) Violating any provision of this chapter, the applicable practice act, or any rules adopted pursuant thereto.	Reprimand, $250 fine to revocation
1. 480.0465 Each massage therapist or massage establishment licensed under the provisions of this act shall include the number of the license in any advertisement of massage services appearing in a newspaper, airwave transmission, telephone directory, or other advertising medium. Pending licensure of a new massage establishment pursuant to the provisions of s. 480.043(7), the license number of a licensed massage therapist who is an owner or principal officer of the establishment may be used in lieu of the license number for the establishment.	Reprimand, $500 fine to revocation
2. 480.0485 The massage therapist-patient relationship is founded on mutual trust. Sexual misconduct in the practice of massage therapy means violation of the massage therapist-patient relationship through which the massage therapist uses that relationship to induce or attempt to induce the patient to engage, or to engage or attempt to engage the patient, in sexual activity outside the scope of practice or the scope of generally accepted examination or treatment of the patient. Sexual misconduct in the practice of massage therapy is prohibited.	$2,500 fine, revocation
3. 480.047(1)(b) Operate any massage establishment unless it has been duly licensed as provided herein, except that nothing herein shall be construed to prevent the teaching of massage in this state at a board-approved massage school. 456.036(1) A licensee may practice a profession only if the licensee has an active status license. A licensee who practices a profession with an inactive status license, a retired status license, or a delinquent license is in violation of this section and s. 456.072, and the board, or the department if there is no board, may impose discipline on the licensee.	$100 fine for 1st month, $50 for each succeeding month
4. 480.047(1)(b), Operate any massage establishment unless it has been duly licensed as provided herein, except that nothing herein shall be construed to prevent the teaching of massage in this state at a board-approved massage school. 456.036(1) A licensee may practice a profession only if the licensee has an active status license. A licensee who practices a profession with an inactive status license, a retired status license, or a delinquent license is in violation of this section and s. 456.072, and the board, or the department if there is no board, may impose discipline on the licensee.	revocation
5. 480.047(1)(c) Permit an employed person to practice massage unless duly licensed as provided herein.	$1,000 fine, suspension to revocation
6. 480.047(1)(d) Present as his or her own the license of another.	Denial of licensure or revocation
7. 480.047(1)(e) Allow the use of his or her license by an unlicensed person.	Denial of licensure or revocation
8. 480.047(1)(f) Give false or forged evidence to the department in obtaining any license provided for herein.	Denial of licensure or revocation
9. 480.047(1)(g) Falsely impersonate any other licenseholder of like or different name.	Denial of licensure or revocation
10. Rule 64B7-26.010 (1) Sexual activity by any person or persons in any massage establishment is absolutely prohibited. (2) No massage establishment owner shall engage in or permit any person or persons to engage in sexual activity in such owner’s massage establishment or use such establishment to make arrangements to engage in sexual activity in any other place. (3) No licensed massage therapist shall use the therapist-client relationship to engage in sexual activity with any client or to make arrangements to engage in sexual activity with any client. (4) As used in this rule, “sexual activity” means any direct or indirect physical contact by any person or between persons which is intended to erotically stimulate either person or both or which is likely to cause such stimulation and includes sexual intercourse, fellatio, cunnilingus, masturbation, or anal intercourse. For purposes of this subsection, masturbation means the manipulation of any body tissue with the intent to cause sexual arousal. As used herein, sexual activity can involve the use of any device or object and is not dependent on whether penetration, orgasm, or ejaculation has occurred. Nothing herein shall be interpreted to prohibit a licensed massage therapist, duly qualified under Rule 64B7-31.001, F.A.C, from practicing colonic irrigation.	$2,500 fine, revocation
(r) 456.072(1)(g) Having been found liable in a civil proceeding for knowingly filing a false report or complaint with the department against another licensee	$500 fine and suspension to $1,000 fine and revocation
(s) 456.072(1)(i) Except as provided in s. 465.016, failing to report to the department any person who the licensee knows is in violation of this chapter, the chapter regulating the alleged violator, or the rules of the department or the board. However, a person who the licensee knows is unable to practice with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material, or as a result of a mental or physical condition, may be reported to a consultant operating an impaired practitioner program as described in s. 456.076 rather than to the department.	$500 fine and reprimand to $1,000 fine and suspension
(t) 456.072(1)(k) Failing to perform any statutory or legal obligation placed upon a licensee. For purposes of this section, failing to repay a student loan issued or guaranteed by the state or the Federal Government in accordance with the terms of the loan or failing to comply with service scholarship obligations shall be considered a failure to perform a statutory or legal obligation, and the minimum disciplinary action imposed shall be a suspension of the license until new payment terms are agreed upon or the scholarship obligation is resumed, followed by probation for the duration of the student loan or remaining scholarship obligation period, and a fine equal to 10 percent of the defaulted loan amount. Fines collected shall be deposited into the Medical Quality Assurance Trust Fund.	$250 fine to $500 fine
(u) 456.072(1)(l) Making or filing a report which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, or willfully impeding or obstructing another person to do so. Such reports or records shall include only those that are signed in the capacity of a licensee.	$500 fine and probation to $2,000 fine and revocation
(v) 456.072(1)(n) Exercising influence on the patient or client for the purpose of financial gain of the licensee or a third party.	$500 fine and probation to $1,000 fine and revocation
(w) 456.072(1)(t) Failing 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. Any advertisement for health care services naming the practitioner must identify the type of license the practitioner holds. This paragraph does not apply to a practitioner while the practitioner is providing services in a facility licensed under chapter 394, chapter 395, chapter 400, or chapter 429. Each board, or the department where there is no board, is authorized by rule to determine how its practitioners may comply with this disclosure requirement.	Letter of concern to $250 fine and reprimand
(x) 456.072(1)(x) Failing to report to the board, or the department if there is no board, in writing within 30 days after the licensee has been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction. Convictions, findings, adjudications, and pleas entered into prior to the enactment of this paragraph must be reported in writing to the board, or department if there is no board, on or before October 1, 1999.	$500 fine and continuing education to $1,000 fine and suspension
(y)  456.072(1)(y) Using information about people involved in motor vehicle accidents which has been derived from accident reports made by law enforcement officers or persons involved in accidents under s. 316.066, or using information published in a newspaper or other news publication or through a radio or television broadcast that has used information gained from such reports, for the purposes of commercial or any other solicitation whatsoever of the people involved in the accidents.	$500 fine and probation to $1,000 fine and suspension
(z) 456.072(1)(aa) Testing positive for any drug, as defined in s. 112.0455, on any confirmed preemployment or employer-ordered drug screening when the practitioner does not have a lawful prescription and legitimate medical reason for using the drug.	Suspension until PRN evaluation, contract if recommended to revocation
(aa)  456.072(1)(bb) Performing or attempting to perform health care services on the wrong patient, a wrong-site procedure, a wrong procedure, or an unauthorized procedure or a procedure that is medically unnecessary or otherwise unrelated to the patient’s diagnosis or medical condition. For the purposes of this paragraph, performing or attempting to perform health care services includes the preparation of the patient.	$500 fine and reprimand to $1,000 fine and revocation
(bb) 456.072(1)(cc) Leaving a foreign body in a patient, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or other diagnostic procedures. For the purposes of this paragraph, it shall be legally presumed that retention of a foreign body is not in the best interest of the patient and is not within the standard of care of the profession, regardless of the intent of the professional.	$1,000 fine and reprimand to revocation
(cc) 456.072(1)(ee) With respect to making a personal injury protection claim as required by s. 627.736, intentionally submitting a claim, statement, or bill that has been “upcoded” as defined in s. 627.732.	Revocation
(dd) 456.072(1)(hh) Being terminated from an impaired practitioner program that is overseen by a consultant as described in s. 456.076, for failure to comply, without good cause, with the terms of the monitoring or participant contract entered into by the licensee, or for not successfully completing any drug treatment or alcohol treatment program.	Suspension until compliant with PRN to revocation
(ee) 456.072(1)(nn) Violating any of the provisions of s. 790.338.

(4) Based upon consideration of aggravating or mitigating factors, present in an individual case, the Board may deviate from the penalties for the violations charged. The Board shall consider as aggravating or mitigating factors the following:

(a) The danger to the public;

(b) The length of time since the violation;

(c) The number of times the licensee has been previously disciplined by the Board;

(d) The length of time licensee has practiced;

(e) The actual damage, physical or otherwise, caused by the violation;

(f) The deterrent effect of the penalty imposed;

(g) The effect of the penalty upon the licensees’ livelihood;

(h) Any effort of rehabilitation by the licensee;

(i) The actual knowledge of the licensee pertaining to the violation;

(j) Attempts by licensee to correct or stop violation or refusal by licensee to correct or stop violation;

(k) Related violations against licensee in another state including findings of guilt or innocence, penalties imposed and penalties served;

(l) Actual negligence of the licensee pertaining to any violation;

(m) Penalties imposed for related offenses under subsections (1) and (2) above;

(n) Any other mitigating or aggravating circumstances.

(5) When the Board finds any person guilty of the grounds set forth in subsection (1) or of any grounds set forth in the applicable practice act, including conduct constituting a substantial violation of subsection (1) or a violation of the applicable practice act which occurred prior to obtaining a license, it shall enter an order imposing one or more of the following penalties:

(a) Refusal to certify, or to certify with restrictions, an application for a license.

(b) Suspension or permanent revocation of a license.

(c) Restriction of practice.

(d) Imposition of an administrative fine not to exceed $10,000 for each Count or separate offense.

(e) Issuance of a reprimand.

(f) Placement of the licensee on probation for a period of time and subject to such conditions as the Board may specify. Those conditions shall include requiring the licensee to undergo treatment, attend continuing education courses, submit to be reexamined, work under the supervision of another licensee, or satisfy any terms which are reasonably tailored to the violations found.

(g) Corrective action.

(6) The provisions of subsections (1) through (4) above are not intended and shall not be construed to limit the ability of the Board to informally dispose of disciplinary actions by stipulation, agreed settlement, or consent order pursuant to Section 120.57(4), F.S.

(7) The provisions of subsections (1) through (4) above are not intended and shall not be construed to limit the ability of the Board to pursue or recommend the Department pursue collateral, civil or criminal actions when appropriate.

(8) In any proceeding where the Board is authorized to take disciplinary action, the Board will also impose costs of investigation and prosecution as authorized by Section 456.072(4), F.S.

(9) Whenever the Board, in accordance with this rule, imposes a monetary fine against a respondent in an Administrative Complaint, it shall also impose a suspension of the respondent’s license until the fine is paid. However, to enable the respondent to pay the monies fine, the Board shall stay the imposition of the suspension for the same time period as specified, in accordance with Rule 64B7-24.016, F.A.C., for payment of the monies fine. If the fine is paid within the specified time, then the order of suspension shall not take effect; if the fine is paid after the order of suspension has taken effect, then the stay shall be lifted.

Rulemaking Authority 456.072(2), 456.079(1), (3), 480.035(7) FS. Law Implemented 456.072(2), 456.079(1), (3), 480.041, 480.043, 480.046, 480.047 FS. History‒New 3-26-87, Formerly 21L-30.002, Amended 9-30-93, 12-12-93, 8-16-94, 10-1-95, 2-5-96, 5-12-96, 5-29-97, Formerly 61G11-30.002, Amended 2-18-98, 11-4-98, 1-26-00, 10-7-02, 10-12-03, 12-13-05, 5-19-13, 12-2-14,                          .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Board of Massage Therapy

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Board of Massage Therapy

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: July 28, 2017

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: January 4, 2018