The Board proposed the rule amendment to clarify and simplify the rule text.

 

DEPARTMENT OF HEALTH

Board of Massage Therapy

RULE NO.:RULE TITLE:

64B7-30.002Disciplinary Guidelines

PURPOSE AND EFFECT: The Board proposed the rule amendment to clarify and simplify the rule text.

SUBJECT AREA TO BE ADDRESSED: The rule text.

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 IN WRITING AND NOT DEEMED UNNECESSARY BY THE AGENCY HEAD, A RULE DEVELOPMENT WORKSHOP WILL BE NOTICED IN THE NEXT AVAILABLE FLORIDA ADMINISTRATIVE REGISTER.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Kama Monroe, Executive Director, Board of Massage Therapy/MQA, 4052 Bald Cypress Way, Bin #C06, Tallahassee, Florida 32399-3253.

 

THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT 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, and 456.072, F.S., and/or division 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)  Disciplinary Guidelines:

VIOLATION	FIRST OFFENSE	ADDITIONAL OFFENSE
(a)  Section 480.046(1)(a), F.S. 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), F.S. 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. 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.	Comparable to the penalty or action imposed in other jurisdiction.	Suspension to revocation
(c) Section 480.046(1)(c), F.S. 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. 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.   Misdemeanors     Felonies   Crimes having a factual basis related to prostitution, or solicitation for prostitution, or assault, battery, abuse, or which otherwise caused bodily harm.   Crimes involving fraudulent misrepresentation.	Reprimand and $250 fine     $500 fine and probation   $1,000 fine and revocation         $10, 000 fine and suspension	$500 fine and probation or suspension   $500 fine and suspension             $10,000 fine and revocation
(d) Section 480.046(1)(d), F.S. False, deceptive, or misleading advertising.	Reprimand and $500 fine to probation and $750.00 fine	Probation, $1,000 fine to revocation
(e) Section 480.046(1)(e), F.S. Advertising to induce or attempt to induce, or to engage or attempt to engage, the client in unlawful sexual misconduct as described in section 480.0485, F.S.	Reprimand and $1,000 fine or suspension up to revocation	Revocation
(f) Section 480.046(1)(f), F.S. 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), F.S. 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.	Reprimand and $1,000 to $2,500 fine	$2,500 fine and suspension to revocation
(g) Section 480.046(1)(g), F.S. Making deceptive, untrue, or fraudulent representations in the practice of massage. Section 456.072(1)(a), F.S. Making misleading, deceptive, or fraudulent representations in or related to the practice of the licensee’s profession. Section 456.072(1)(m), F.S. 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 and $500 to $1,000 fine            If fraudulent misrepresentation found reprimand and $10,000 fine	$2,500 fine and suspension to revocation           If fraudulent misrepresentation found $10,000 fine and revocation
(h) Section 480.046(1)(h), F.S. 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. Section 456.072(1)(z), F.S. 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.	Suspension until ability to practice with reasonable skill and safely shown to Board through evaluation by a licensed health care practitioner qualified by skill and training to address respondent’s condition	Revocation
(i) Section 480.046(1)(i), F.S. 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, and continuing education	$2,500 fine, suspension to revocation
(j) Sections 480.046(1)(j), 456.072(1)(o), F.S. 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.	Reprimand, $1,000 fine, and continuing education	$2,500 fine, suspension to revocation
(k)  Sections 480.046(1)(k), 456.072(1)(p), F.S.  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.	Reprimand and $1,000 to $2,500 fine	$2,500 fine and suspension to revocation
(l) Section 480.046(1)(l), F.S. 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), F.S. 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	$500 fine and suspension until compliant to revocation
(m) Section 480.046(1)(m), F.S. Refusing to permit the department to inspect the business premises of the licensee during regular business hours. Section 456.072(1)(r), F.S. Improperly interfering with an investigation or inspection authorized by statute, or with any disciplinary proceeding.	$500 to $1,000 fine, suspension until compliant	$2,500 fine, suspension until compliant to revocation
(n) Section 480.046(1)(n), F.S. Failing to keep the equipment and premises of the massage establishment in a clean and sanitary condition.	Reprimand, $250 to $1,000 fine, suspension until satisfactory re-inspection	$2,500 fine, suspension until satisfactory re-inspection to revocation
(o) Section 480.046(1)(o), F.S. 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, $250 to $750 fine and continuing education	$2,500 fine, six months suspension to revocation
(p) Section 480.046(1)(p), F.S. Violating any provision of this chapter or chapter 456, F.S. or any rules adopted pursuant thereto. Section 456.072(1)(b), F.S. Intentionally violating any rule adopted by the board or the department, as appropriate. Section 456.072(1)(dd), F.S. Violating any provision of this chapter, the applicable practice act, or any rules adopted pursuant thereto.	Reprimand, $250 to $1,000 fine, and continuing education	$1,000 to $2,500 fine, suspension to revocation
1. Section 480.0465, F.S. 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.	Reprimand and $250 fine	$1,000 fine and suspend until compliant
2. Section 480.0485, F.S. Sexual misconduct in the practice of massage therapy. Section 456.072(1)(v), F.S.  Engaging or attempting to engage in sexual misconduct as defined and prohibited in 456.063(1), F.S., or 64B7-26.010, F.A.C., Sexual Activity Prohibited.	$2,500 fine and revocation
3. Section 456.036(1), F.S.  Practicing with an inactive status license, a retired status license, a delinquent or suspended license.	Reprimand, $250 to $1,000 fine, and continuing education	$2,500 fine to revocation
(q) Section 456.072(1)(g), F.S. Having been found liable in a civil proceeding for knowingly filing a false report or complaint with the department against another licensee.	Reprimand and $500 to $1,000 fine	$1,500 fine and suspension to revocation
(r) Section 456.072(1)(i), F.S.  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.	Reprimand and $250 to $1,000 fine and suspension	$1,500 fine and suspension to revocation
(s) Section 456.072(1)(k), F.S. Failing to perform the statutory or legal obligation of a student loan.	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.	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 15 percent of the defaulted loan amount.
(t) Section 456.072(1)(l), F.S. 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.	Reprimand and $500 to $1,000 fine   If fraudulent misrepresentation found $10,000 fine	$2,500 fine and suspension to revocation   If fraudulent misrepresentation found $10,000 fine
(u) Section 456.072(1)(n), F.S. Exercising influence on the patient or client for the purpose of financial gain of the licensee or a third party.	$1,000 to $2,500 fine, and suspension to revocation	Revocation
(v) Section 456.072(1)(t), F.S. 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.	Reprimand and $250 fine	$1,000 fine and reprimand
(w) Section 456.072(1)(x), F.S. 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.	Reprimand, $250 fine and continuing education	$1,000 fine and suspension to revocation
(x) Section 456.072(1)(y), F.S. 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 section 316.066, F.S. 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 to $1,000 fine and suspension	Revocation
(y) Section 456.072(1)(aa), F.S. Testing positive for any drug, as defined in section 112.0455, F.S. 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 evaluation by a licensed health care practitioner qualified by skill and training to address respondent’s condition,  compliance with all recommendations to revocation	$500 fine and suspension until PRN evaluation, compliance with all recommendations to revocation
(z) Section 456.072(1)(bb), F.S. 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.	Reprimand and $500 fine, and continuing education	Revocation
(aa) Section 456.072(1)(cc), F.S. 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.	Reprimand and $1,000 fine  to revocation	Revocation
(bb) Section 456.072(1)(ee), F.S. 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. Section 456.072(1)(ff), F.S.  With respect to making a personal injury claim as required by s. 627.736, intentionally submitting a claim, statement, or bill for payment of services that were not rendered.	Revocation
(cc) Section 456.072(1)(hh), F.S. Being terminated from an impaired practitioner program that is overseen by a consultant as described in section 456.076, F.S. 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 ability to practice with reasonable skill and safety shown to Board through  evaluation by a licensed health care practitioner qualified by skill and training to address respondent’s condition	Revocation
(dd)  Section 456.072(1)(ii), F.S.  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, related to the Medicaid program. 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.	Revocation
(ee) Section 456.072(1)(nn), F.S. Violating any of the provisions of section 790.338, F.S.	Reprimand, $250 fine and continuing education to suspension	$1,000 fine and 6 months suspension to revocation

(3) 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.

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, 1-2-19,                  .