The proposed rule amendments are intended to clarify language in the rule with regard to the range of punishment; aggravating or mitigating factors; and range of penalties for certain offenses. Additionally, the Board proposes the development of ...

 

DEPARTMENT OF HEALTH

Board of Occupational Therapy

RULE NO.: RULE TITLE:

64B11-4.003: Standards of Practice; Discipline

PURPOSE AND EFFECT: The proposed rule amendments are intended to clarify language in the rule with regard to the range of punishment; aggravating or mitigating factors; and range of penalties for certain offenses. Additionally, the Board proposes the development of rule amendments pursuant to Section 456.072(1)(oo), F.S., and 456.072(1)(aa), F.S.

SUMMARY: The proposed rule amendments clarify language in the rule with regard to the range of punishment for certain violations; clarify language with regard to aggravating or mitigating factors; and clarify the range of penalties for certain offenses. Additionally, the proposed rule amendments set forth violations and penalties for offenses pursuant to Section 456.072(1)(oo), F.S., and 456.072(1)(aa), F.S.

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 concluded that this rule amendment will not have any impact on licensees and their businesses or the businesses that employ them. The rule will not increase any fees, business costs, personnel costs, will not decrease profit opportunities, and will not require any specialized knowledge to comply. This change will not increase any direct or indirect regulatory costs. Hence, the Board 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: 456.079, 468.204 FS.

LAW IMPLEMENTED: 456.072, 456.079, 468.217 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: Allen Hall, Executive Director, Board of Occupational Therapy/MQA, 4052 Bald Cypress Way, Bin # C05, Tallahassee, Florida 32399-3255.

 

THE FULL TEXT OF THE PROPOSED RULE IS:

64B11-4.003 Standards of Practice; Discipline.

(1) No change.

(2) Among the range of punishments including any and all in Section 456.072(2), F.S., in increasing severity are:

(a) through (b) No change.

(c) Suspension for a minimum of ninety days and thereafter until the licensee appears before the Board to demonstrate current competency and ability to practice safely and compliance with any previous Board orders.

(d) Licensure with conditions.

(e)(d) Denial of licensure with conditions to be met prior to any reapplication.

(f)(e) Permanent Revocation, with limited ability to reapply.

(3) Aggravating and Mitigating Circumstances. Based upon consideration of aggravating and mitigating factors present in an individual case, the Board may deviate from the penalties recommended below. The Board shall consider as aggravating or mitigating factors the following:

(a) through (f) No change

(g) Any other relevant mitigating or aggravating factors.

(4) Violations and Range of Penalties. In imposing discipline upon applicants and licensees, in proceedings pursuant to Sections 120.57(1) and (2), F.S., the Board shall act in accordance with the following disciplinary guidelines and shall impose a penalty within the range corresponding to the violations set forth below. The verbal identification of offenses are descriptive only; the full language of each statutory provision cited must be consulted in order to determine the conduct included. For applicants, any and all offenses listed herein are sufficient for refusal to certify an application for licensure.

In addition to the penalty imposed, the Board shall recover the costs of investigation and prosecution of the case. Additionally, if the Board makes a finding of pecuniary benefit or self-gain related to the violation, then the Board shall require refund of fees billed and collected from the patient or a third party on behalf of the patient.

 

VIOLATION		PENALTY RANGE MINIMUM				MAXIMUM
(a) No change.
(b) Action taken against license
by another jurisdiction.
(468.217(1)(b), 456.072(1)(f), F.S.)
First Offense		Imposition of discipline which would have been				Revocation Suspension/denial
		if the substantive				until the license
		violation occurred in				is unencumbered
		Florida and $100 fine				in the jurisdiction
						in which disciplinary
						action was originally
						taken and $1,000 fine.
						Impaired practitioners
						working in Florida
						may be ordered into the PRN
Second Offense		Imposition of discipline				Revocation
		which would have been				until the license is
		if the substantive				unencumbered in
		violation occurred in				the jurisdiction in
		Florida and a $1,000 fine				which disciplinary
						action was originally
						taken and $2,000 fine.
						Impaired practitioners
						working in Florida may be ordered into the PRN
Third Offense		Revocation and $10,000 fine
(c) through (g) No change.
(h) Failure to perform legal
obligation.
(468.217(1)(h), 456.072(1)(k), F.S.)
First Offense		Letter of Concern				6 months probation
		and $100 fine				with conditions and
						$100 fine, unless otherwise provided by law
Second Offense		6 months probation with				6 months
		conditions and $100 fine				suspension,
						1 year probation
						with conditions
						and $1,000 fine, unless otherwise provided by law
Third Offense		6 months suspension, 1				Revocation and
		year probation with				$5,000 fine
		conditions and $500 fine				conditions and $500 fine
(i)  through (s) No change.
(t) Inability to practice occupational
therapy with skill and safety.
(468.217(1)(t), 456.072(1)(z), F.S.)
First Offense		Submit to mental/physical				Submit to mental/
		examination and impose				physical examination
		conditions on practice				and suspension
						until able to
						demonstrate ability
						to practice with
						reasonable skill
						and safety, followed by probation with conditions
Second Offense		Submit to mental/physical				Submit to mental/
		examination and				physical examination
		suspension until able to				and suspension
		demonstrate ability to				until able to
		practice with reasonable				demonstrate ability
		skill and safety, followed by probation with conditions				to practice with reasonable skill
						and safety, followed by probation with conditions, and
						$3,000 fine
Third Offense		Submit to mental/physical				Revocation and
		examination, suspension				$5,000 fine
		until able to demonstrate
		ability to practice with
		reasonable skill and safety, followed by probation with conditions,
		and $3,000 fine
(u) through (w) No change.
(x) Violating Chapters 468, 456, F.S., or any rules adopted pursuant thereto. (468.217(1)(x), 456.072(1)(dd) (cc), F.S.)
First Offense		Suspension until law or rule complied with and $500 fine				Revocation and $1,500 fine
Second Offense		6 months suspension, 1 year probation with conditions and $1,500 fine				Revocation and $5,000 fine
(y) through (mm)  No change.
(nn) Willfully failing to comply with Section 627.64194 or Section 641.513, F.S., with such frequency as to indicate a general business practice. 456.072(1)(oo), F.S.
First Offense		Letter of Concern and $500 fine				6 months probation with conditions and $1,000 fine
Second Offense		Reprimand and $3,000 fine				Revocation and $5,000 fine
Third Offense		Reprimand and $5,000 Fine				Revocation and $10,000 fine
(oo)  Testing positive for any drug on confirmed preemployment or employer ordered drug screening without lawful prescription. (456.072(1)(aa), F.S.)
First Offense		Submit to mental/physical examination and impose conditions on practice				Submit to mental/ physical examination and suspension until able to demonstrate ability to practice with reasonable skill and safety, followed by probation with conditions
Second Offense		Submit to mental/physical examination and suspension until able to demonstrate ability to practice with reasonable skill and safety, followed by probation with conditions				Submit to mental/ physical examination and suspension until able to demonstrate ability to practice with reasonable skill and safety, followed by probation with conditions, and $3,000 fine
Third Offense		Submit to mental/physical examination, suspension until able to demonstrate ability to practice with reasonable skill and safety, followed by probation, and $3,000 fine				Revocation and $5,000 fine

(5) through (7) No change.

Rulemaking Authority 456.079, 468.204 FS. Law Implemented 456.072, 456.079, 468.217 FS. History–New 9-12-88, Amended 11-9-92, Formerly 21M-15.002, 61F6-15.002, 59R-63.002, Amended 1-27-00, 12-27-01, 12-27-05, 4-10-08, 8-5-10, 4-18-12,                                 .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Board of Occupational Therapy

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

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: October 31, 2016

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: September 26, 2016