Disciplinary Guidelines; Range of Penalties; Aggravating and Mitigating Circumstances

 

DEPARTMENT OF HEALTH

Board of Nursing

RULE NO.:RULE TITLE:

64B9-8.006Disciplinary Guidelines; Range of Penalties; Aggravating and Mitigating Circumstances

NOTICE OF CHANGE

Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 47 No. 101, May 25, 2021 issue of the Florida Administrative Register.

The change is in response to written comments submitted by the staff of the Joint Administrative Procedures Committee and discussion and subsequent vote by the Board at the public meeting held October 8, 2021, in Kissimmee, Florida. A Notice of Change published for the rule in Vol. 47, No. 174, of the September 8, 2021, issue of the Florida Administrative Register. The rule shall now read as follows:

64B9-8.006 Disciplinary Guidelines; Range of Penalties; Aggravating and Mitigating Circumstances.

(1) through (2) No change.

(3) The following disciplinary guidelines shall be followed by the Board in imposing disciplinary penalties upon licensees or telehealth registrants for violation of the noted statutes and rules:

(a) Procuring, attempting to procure, or renewing a license to practice nursing by bribery, by knowing misrepresentations, or through an error of the department or board. (Section 456.072(1)(h) or 464.018(1)(a), F.S.)

1. Attempting to procure or procuring initial license by bribery or knowing misrepresentations.

	MINIMUM	MAXIMUM
FIRST OFFENSE	Denial. $500 fine and probation	$10,000 fine and denial revocation
SECOND OFFENSE	$5,000 fine, suspension or probation	$10,000 fine and revocation
FOR TELEHEALTH REGISTRANTS	Denial of license	Revocation

2. Attempting to renew or renewing license by bribery or knowing misrepresentations.

	MINIMUM	MAXIMUM
FIRST OFFENSE	Revocation.	$10,000 fine and revocation
FOR TELEHEALTH REGISTRANTS	Denial of license	Revocation

3. Procuring or renewing license by error of the department or board.

	MINIMUM	MAXIMUM
FIRST OFFENSE	Revocation.	Revocation
FOR TELEHEALTH REGISTRANTS	Denial of license	Revocation

(b) No change.

(c) Criminal Violations:

1. Being convicted of or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication of a crime in any jurisdiction which directly relates to the practice of nursing or to the ability to practice nursing. (Section 456.072(1)(c), 464.018(1)(c), or 456.072(1)(ii), (ll), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand	$250 fine, continuing education, probation
SECOND OFFENSE	$500 fine, suspension or probation	$1,000 fine, revocation
FOR TELEHEALTH REGISTRANTS	Denial of license	Revocation

 

2. Being convicted of or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication of a crime under specifically identified state or federal statutes. (Section 464.018(1)(d), 464.018(1)(e), or 456.072(1)(ii) or (ll), F.S.)

a. Section 464.018(1)(d), F.S.

	MINIMUM	MAXIMUM
FIRST OFFENSE	Suspension Reprimand	Revocation
SECOND OFFENSE	Revocation Suspension	Revocation
FOR TELEHEALTH REGISTRANTS	Reprimand	Revocation

b. Section 464.018(1)(e), F.S.

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand; $250 fine, continuing education	$500 fine, probation
SECOND OFFENSE	$1,000 fine, suspension or probation	Revocation
FOR TELEHEALTH REGISTRANTS	Denial of license	Revocation

3. Section 456.072(ii) and (ll), F.S.

	MINIMUM	MAXIMUM
FIRST OFFENSE	Revocation	Revocation
FOR TELEHEALTH REGISTRANTS	Denial of license	Revocation

(d) Making or filing a false report or record, which the licensee knows to be false, intentionally or negligently failing to file a report or records required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so; Intentionally submitting a claim, statement or bill that has been upcoded as defined in section 627.736, F.S., for a PIP claim or for services that were not rendered. (Ssection 456.072(1)(l), (ee) or (ff) or 464.018(1)(f), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$250 fine, continuing education or probation	$1,000 5,000 fine and probation suspension
SECOND OFFENSE	$5,000 500 fine and suspension	$10,000 fine and revocation
FOR TELEHEALTH REGISTRANTS	Reprimand	Suspension with a corrective action plan or revocation

(e) No change.

(f) Unprofessional conduct as defined by rule 64B9-8.005, F.A.C. (section 464.018(1)(h), F.S.).

1. Subsections 64B9-8.005(1),(3), (6), (7), (8), (11), (12), (13), (14), (16), and (17), (2) F.A.C.

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand, $250 fine, and continuing education	$500 fine, and suspension with IPN evaluation or probation
SECOND OFFENSE	$750 500 fine, suspension and IPN evaluation	Revocation
FOR TELEHEALTH REGISTRANTS	Reprimand	Suspension with corrective action plan
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE	Suspension with corrective action plan	Revocation

2. Subsections 64B9-8.005(2) and (5), (6), (7), (9), (10), (11), (12) and (13), F.A.C.

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand, $500 fine and continuing education	Suspension with IPN evaluation  Revocation
SECOND OFFENSE	$1,000 fine, suspension with IPN evaluation or probation	Revocation
FOR TELEHEALTH REGISTRANTS	Reprimand	Revocation

3. No change.

4. Subsection 64B9-8.005(4),(9), (10), F.A.C.

	MINIMUM	MAXIMUM
FIRST OFFENSE	Revocation
FOR TELEHEALTH REGISTRANTS	Revocation

5. No change.

(g) Engaging or attempting to engage in the possession, sale or distribution of controlled substances as set forth in chapter 893, F.S. for illegitimate purposes; being unable to practice nursing with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any mental or physical condition; testing positive for any drug, as defined in section 112.0455, F.S., on any confirmed pre-employment or employer-ordered drug screening when the practitioner does not have a lawful prescription and legitimate medical reason for using such drug; or being terminated from a treatment program for impaired practitioners for failure to comply without good cause with the terms of the monitoring or treatment contract, or not successfully completing a drug or alcohol treatment program. (section 456.072(1)(z), (aa), or (hh), or 464.018(1)(i) or (j), F.S.

	MINIMUM	MAXIMUM
FIRST OFFENSE	$250 fine, suspension and IPN evaluation	$250 500 fine, suspension and IPN evaluation, or revocation
SECOND OFFENSE	$500 fine, suspension and IPN evaluation	Revocation
FOR TELEHEALTH REGISTRANTS	Suspension with corrective action plan	Revocation

(h) No change.

(i) Knowingly violating any provision of Chapter 456 or 464, F.S., a rule of the board or the department, or a lawful order of the board or department previously entered in a disciplinary proceeding or failing to comply with a lawfully issued subpoena of the department; or failing to perform any statutory or legal obligation placed on a licensee. (Section 456.072(1)(b), (k) or (q), (dd), or 464.018(1)(l) or (o), F.S.)

1. Violating a rule of the board or the department or failing to perform any statutory or legal obligation placed on a licensee

FIRST OFFENSE	Letter of Concern, $100 fine and continuing education	$250 fine and probation
SECOND OFFENSE	Reprimand, $500 fine and suspension	$750 fine and revocation
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE	Letter of Concern	Reprimand
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE	Reprimand to suspension with corrective action plan	Revocation

 

2. Violating a lawful order of the board or department or failing to comply with a lawfully issued subpoena of the department.

	MINIMUM	MAXIMUM
FIRST OFFENSE	$250 fine and suspension until compliant with subpoena rule or terms of prior order	$250 500 fine and suspension until compliant with subpoena rule or terms of prior order, or revocation
SECOND OFFENSE	$500 fine and suspension until compliant with subpoena rule or terms of prior order	Revocation
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE	Reprimand	Suspension with corrective action plan
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE	Suspension with corrective action plan	Revocation

(j) Failing to report to the department any licensee under chapter 458, or 459, F.S., who the nurse knows has violated the grounds for disciplinary action set out in the law under which that person is licensed and who provides health care services in a facility licensed under chapter 395, F.S., or a health maintenance organization certificated under part I of chapter 641, F.S., in which the nurse also provides services. (Section 464.018(1)(m), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand	$250 fine and probation Revocation
SECOND OFFENSE	$500 fine and sSuspension or probation	Revocation
FOR TELEHEALTH REGISTRANTS	Reprimand	Revocation

(k) Failing to meet minimal standards of acceptable and prevailing nursing practice, including engaging in acts for which the licensee is not qualified by training or experience, or practicing; or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities the licensee knows, or has reason to know, the licensee is not competent to perform. (Section 456.072(1)(o), (gg) or 464.018(1)(n), (p), (q) or 456.44(3), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand, $250 fine, and continuing education	$500 fine and probation Revocation
SECOND OFFENSE	Reprimand, $750 500 fine, suspension or probation	Revocation
FOR TELEHEALTH REGISTRANTS	Reprimand	Revocation

(l) Making misleading, deceptive or fraudulent representations in or related to the practice of the licensee’s profession or 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. (Section 456.072(1)(a) or (m), F.S.)

1. Making misleading or deceptive representations.

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand and $250 fine	$500 10,000 fine, continuing education, and probation and suspension, or revocation
SECOND OFFENSE	$700 500 fine and suspension	$10,000 fine and rRevocation
FOR TELEHEALTH REGISTRANTS	Reprimand	Suspension with corrective action plan
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE	Suspension with corrective action plan	Revocation

2. Making fraudulent representations or employing a trick or scheme.

	MINIMUM	MAXIMUM
FIRST OFFENSE	Revocation	$10,000 fine and revocation
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE	Letter of Concern	Reprimand
FOR TELEHEALTH REGISTRANTS	Reprimand to suspension with corrective action plan	Revocation
SECOND OFFENSE

(m) through (n) No change.

(o) Having been found liable in a civil proceeding for knowingly filing a false report or complaint with the department against another licensee. (Section 456.072(1)(g), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand and $250 fine	$500 fine and probation suspension
SECOND OFFENSE	$750 500 fine and suspension or probation	Revocation
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE	Reprimand	Suspension with corrective action plan
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE	Suspension with corrective action plan	Revocation

(p) 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, or 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. (Section 456.072(1)(j), (p), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand, $250 fine and continuing education	$500 fine and probation or suspension, or revocation
SECOND OFFENSE	$750 500 fine and probation or suspension	Revocation
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE	Reprimand	Suspension with corrective action plan
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE	Suspension with corrective action plan	Revocation

(q) Exercising influence on the patient or client for the purpose of financial gain of the licensee or a third party. (Section 456.072(1)(n), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand, $250 fine and probation	$500 fine and suspension Revocation
SECOND OFFENSE	$750 500 fine and suspension or probation	Revocation
FOR TELEHEALTH REGISTRANTS	Reprimand to suspension with corrective action plan	Revocation

(r) Improperly interfering with an investigation or inspection authorized by statute, or with any disciplinary proceeding. (Section 456.072(1)(r), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand and $250 fine	$500 fine and probation suspension
SECOND OFFENSE	$750 500 fine, and suspension or probation	Revocation
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE	Reprimand	Suspension with corrective action plan
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE	Suspension with corrective action plan	Revocation

(s) through (v) No change.

(w) Failing to report to the 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. (Section 456.072(1)(x), F. S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand, $250 fine and continuing education	$500 fine and probation
SECOND OFFENSE	$500 fine, and suspension or probation	Revocation
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE	Reprimand	Suspension with corrective action plan
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE	Suspension with corrective action plan	Revocation

(x) through (z) No change.

(aa) Being terminated from the state Medicaid program pursuant to section 409.913, F.S., any other state Medicaid program, or the federal Medicare program, unless eligibility to participate in the program from which the practitioner was terminated has been restored. (Section 456.072(1)(kk), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	Revocation $500 fine and reprimand	Revocation
SECOND OFFENSE	Revocation	Revocation

(bb) Violating any provision of section 390.0111, F.S. (Section 390.0111(13), F.S.)

	MINIMUM	MAXIMUM
	Letter of Concern	Letter of Concern

(cc) through (ff) No change.

	MINIMUM	MAXIMUM
FIRST OFFENSE	$250 fine and reprimand	$500 fine and suspension
SECOND OFFENSE	$500 fine and suspension	Revocation

(gg) Intentionally implanting or inseminating a patient or causing a patient to be implanted with a human embryo or inseminating a patient without consent.  (Section 456.072(1)(qq), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	Revocation $500 fine, suspension or probation	Revocation
SECOND OFFENSE	$1,000 fine, suspension	Revocation

(hh) No change.

(ii) Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, or committing or attempting, soliciting, or conspiring to commit an act that would constitute a violation of any offense listed in s.456.074(5), FS or similar offense in another jurisdiction.  (Section 456.072(1)(ss), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	Revocation Reprimand, suspension or probation	Revocation
SECOND OFFENSE	Suspension	Revocation

(jj) through (ll) No change.

(4) through (6) No change.

Rulemaking Authority 456.072, 456.079 FS. Law Implemented 456.072, 456.079, 464.018 FS. History–New 2-5-87, Amended 8-12-87, 12-8-87, 11-23-89, 7-28-92, Formerly 21O-10.011, Amended 12-5-93, Formerly 61F7-8.006, Amended 5-1-95, Formerly 59S-8.006, Amended 8-18-98, 7-1-99, 3-23-00, 5-8-00, 5-2-02, 1-12-03, 2-22-04, 8-3-05, 7-5-06, 2-6-12, 11-19-12, 2-2-17, 2-11-19, 6-11-20,                                 .

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Joe Baker, Jr., Executive Director, Board of Nursing, 4052 Bald Cypress Way, Bin #C02, Tallahassee, Florida 32399-3252; [e-mail].