The Board proposes the rule amendment in order to update offenses and penalties.

DEPARTMENT OF HEALTH
Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling

RULE NO: RULE TITLE
64B4-5.001: Disciplinary Guidelines
PURPOSE AND EFFECT: The Board proposes the rule amendment in order to update offenses and penalties.
SUMMARY: Offenses and penalties will be updated.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared. The Board determined the proposed rules will not have an impact on small business.
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.
SPECIFIC AUTHORITY: 456.079, 491.004(5) FS.
LAW IMPLEMENTED: 456.079, 491.009 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Sue Foster, Executive Director, Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling/MQA, 4052 Bald Cypress Way, Bin #C08, Tallahassee, Florida 32399-3258

THE FULL TEXT OF THE PROPOSED RULE IS:

64B4-5.001 Disciplinary Guidelines.

(1) When the Board finds an applicant, licensee, registered intern, provisional licensee, or certificate holder whom it regulates under Chapter 491, F.S., has committed any of the acts set forth in Section 456.072(1) or 491.009(2), F.S., it shall issue a final order imposing appropriate penalties as recommended in the following disciplinary guidelines.

(a) Attempting to obtain, obtaining, or renewing a license under Chapter 491, F.S., by bribery or fraudulent misrepresentation or through an error of the Board or the Department.

(Sections 456.072(1)(h) & 491.009(1)(a), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$500 fine and reprimand	denial or $1000 fine and permanent revocation;
SECOND OFFENSE:	$1000 fine and probation	permanent denial and $1000 fine and permanent revocation;

 

(b) Having a license or certificate to practice a comparable profession or any regulated profession revoked, suspended, or otherwise acted against, including the denial of certification or licensure by another state, territory, or country.

(Sections 456.072(1)(f), F.S. & 491.009(1)(b), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$1000 fine and reprimand	denial or $1000 fine and permanent revocation;
SECOND OFFENSE:	$1000 fine and probation	permanent denial or $1000 fine and permanent revocation;
THIRD OFFENSE:	$1000 fine, 1 year suspension followed by probation	permanent denial or $1000 fine and permanent revocation;

 

(c) Being convicted or found guilty, regardless of adjudication, or having entered a plea of nolo contendere to, a crime in any jurisdiction which directly relates to the practice of the licensee’s profession or the licensee’s ability to practice that profession.

(Section 456.072(1)(c) & 491.009(1)(c), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$1000 fine and probation	denial or $1000 fine and permanent revocation
SECOND OFFENSE:	$1000 fine and 1 year suspension followed by probation;	permanent denial or $1000 fine and permanent revocation;

 

(d) through (g) No change.

(h)1. Failing to perform any statutory or legal obligation placed upon a person licensed under Chapter 491, F.S.

(Section 456.072(1)(k) & 491.009(1)(h), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	reprimand	$1000 fine and 1 year probation;
SECOND OFFENSE:	$1000 fine and reprimand	$1000 fine and 6 month suspension followed by probation;
THIRD OFFENSE:	$1000 fine and probation	$1000 fine and permanent revocation;

 

2. In the case of noncompliance with a continuing education requirement, the following guidelines apply:

(Rule 64B-6.003, F.A.C.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$1000 fine and reprimand	$1000 fine and probation;
SECOND OFFENSE:	$1000 fine and probation	$1000 fine and 1 year suspension followed by probation;

 

(i) Willfully making or filing a false report or record; failing to file a report or record required by state or federal law; willfully impeding or obstructing the filing of a report or record; or inducing another person to make or file a false report or record or to impede or obstruct the filing of a report or record.

(Section 456.072(1)(l) & 491.009(1)(i), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$500 fine and reprimand	$1000 fine and probation;
SECOND OFFENSE:	$1000 fine and probation	$1000 fine and 1 year suspension followed by probation; denial or $1000 fine and permanent revocation;
THIRD OFFENSE:	$1000 fine, 1 year suspension followed by probation	$10,000 fine and permanent revocation

 

(j) Paying or receiving a kickback, rebate, bonus, or other remuneration for receiving a patient or client or referring a patient or client to another provider of mental health care services or to a provider of health care services or goods; referring a patient or client to oneself for services on a fee‑paid basis when those services are already being paid for by some other public or private entity; or entering into a reciprocal referral agreement.

(Section 491.009(1)(j), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$1000 fine and reprimand	$1000 fine and probation;
SECOND OFFENSE:	$1000 fine and probation	$1000 fine and 1 year suspension followed by probation;
THIRD OFFENSE:	$1000 fine and 1 year suspension followed by probation	denial or $1000 fine and permanent revocation;

 

(k) Committing any act upon a patient or client, which would constitute sexual battery or which would constitute sexual misconduct.

(Section 456.072(1)(v)(u) & 491.009(1)(k), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$1000 fine and 1 year suspension followed by probation	denial or $1000 fine and revocation;
SECOND OFFENSE:	$1000 fine and 2 years suspension followed by probation	denial or $1000 fine and permanent revocation;

 

(l) No change.

(m) Soliciting patients or clients personally, or through an agent, through the use of fraud, intimidation, undue influence, or a form of overreaching or vexatious conduct.

(Section 491.009(1)(m), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$500 fine and reprimand	$1000 fine and 6 month suspension followed by probation;
SECOND OFFENSE:	$1000 and reprimand	$1000 fine and 1 year suspension followed by probation;
THIRD OFFENSE:	$1000 fine 1 year and suspension followed by probation	$1000 fine permanent revocation;

 

(n) No change.

(o) Failing to respond within thirty (30) days to a written communication from the Department or the Board concerning any investigation by the Department or the Board, or failing to make available any relevant records with respect to the investigation about the licensee’s conduct or background.

(Section 491.009(1)(o), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$1000 fine and reprimand	$1000 fine and probation;
SECOND OFFENSE:	$1000 fine and probation	$1000 fine and 1 year suspension followed by probation;
THIRD OFFENSE:	$1000 fine and 1 year suspension followed by probation	denial or $1000 fine and permanent revocation;

 

(p) Being unable to practice the profession for which one is licensed under Chapter 491, F.S., with reasonable skill and competence as a result of any mental or physical condition or by reason of illness; drunkenness; or excessive use of drugs, narcotics, chemicals, or any other substance.

(Section 456.072(1)(z)(y) & 491.009(1)(p), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$1000 fine and probation	$1000 fine and suspension until the licensee is able to appear before the Board and demonstrate that he or she is able to practice with reasonable skill and competence, followed by probation;
SECOND OFFENSE:	suspension until the licensee is able to appear before the Board and demonstrate that he or she is able to practice with reasonable skill and competence, followed by probation	$1000 fine and permanent revocation;

 

(q) Violating provisions of Chapter 491 or 456, F.S., or any rule adopted pursuant thereto.

(Section 456.072(1)(dd) & 491.009(1)(w), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$500 fine and reprimand	$1000 fine and probation
SECOND OFFENSE:	$1000 fine and probation	$1000 fine and 1 year suspension followed by probation;
THIRD OFFENSE:	$1000 fine and 1 year suspension followed by probation	denial or $1000 fine and permanent revocation;

 

(r) Performing any treatment or prescribing any therapy which, by the prevailing standards of the mental health professions in the community would constitute experimentation on human subjects, without first obtaining full, informed, and written consent.

(Section 491.009(1)(q), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$500 fine and reprimand	$1000 fine and probation;
SECOND OFFENSE:	$1000 fine and probation	$1000 fine and 1 year suspension followed by probation
THIRD OFFENSE:	$1000 fine and 1 year suspension followed by probation	denial or $1000 fine and permanent revocation;

 

(s) Failing to meet the MINIMUM standards of performance in professional activities when measured against generally prevailing peer performance, including the undertaking of activities for which the licensee is not qualified by training or experience.

(Section 491.009(1)(r), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$250 fine and reprimand	$1000 fine and probation;
SECOND OFFENSE:	$1000 fine and probation	$1000 fine and 1 year suspension followed by probation;
THIRD OFFENSE:	$1000 fine and 1 year suspension followed by probation	denial or $1000 fine and permanent revocation:

 

(t) No change.

(u) Violating a rule relating to the regulation of the profession or a lawful order of the Department or the Board previously entered in a disciplinary hearing.

(Section 491.009(1)(t), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$1000 fine and reprimand	$1000 fine and 6 month suspension followed by probation;
SECOND OFFENSE:	$1000 fine and 1 year suspension followed by probation	denial or $1000 fine and permanent revocation;

 

(v) Failure of a licensee to maintain in confidence any communication made by a patient or client in the context of services, except by written permission or in the face of clear and immediate probability of bodily harm to the patient or client or to others.

(Section 491.009(1)(u), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$1000 fine and reprimand	$1000 fine and probation;
SECOND OFFENSE:	$1000 fine and probation	denial or $1000 fine and permanent revocation;

 

(w) Making public statements which are derived from test data, client contacts, or behavioral research and which identify or damage research subjects or clients.

(Section 491.009(1)(v), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$1000 fine and reprimand	$1000 fine and probation;
SECOND OFFENSE:	$1000 fine and probation	denial or $1000 fine and permanent revocation;

 

(x) Having been found liable in a civil proceeding for knowingly filing a false report or complaint with the department or the agency against another licensee.

(Section 456.072(1)(g), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$500 fine and reprimand	$1000 fine and probation;
SECOND OFFENSE:	$1000 fine and probation	$1000 fine and 1 year suspension followed by probation;
THIRD OFFENSE:	$1000 fine and 1 year suspension followed by probation	denial or $1000 fine and permanent revocation;

 

(y) through (z) No change.

(aa) 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:	$1000 fine and reprimand	$1000 fine and 6 months suspension followed by probation;
SECOND OFFENSE:	$1000 fine and 1 year suspension followed by probation	denial or $1000 fine and permanent revocation;

 

(bb) Intentionally violating any rule adopted by the Board or the department, as appropriate.

(Section 456.072(1)(b), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$1000 fine and reprimand	$1000 fine and 6 months suspension followed by probation;
SECOND OFFENSE:	$1000 fine and 1 year suspension followed by probation	denial or $1000 fine and permanent revocation;

 

(cc) Failing to comply with the educational course requirements for domestic violence.

(Section 456.072(1)(s), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	reprimand	$1000 fine and 1 year probation;
SECOND OFFENSE:	$1000 fine and reprimand	$1000 fine and 6 months suspension followed by probation
THIRD OFFENSE:	$1000 fine and probation	$1000 fine and permanent revocation;

 

(dd) No change.

(ee) Violating any provision of this part, the applicable professional practice act, a rule of the department or the board, or a lawful order of the department or the board, or failing to comply with a lawfully issued subpoena of the department.

(Section 456.072(1)(q), F.S & Section 491.009(1)(w), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$500 fine and reprimand	$1000 fine and probation;
SECOND OFFENSE:	$1000 fine and probation	$1000 fine and 1 year suspension followed by probation;
THIRD OFFENSE:	$1000 fine and 1 year suspension followed by probation	denial or $1000 fine and permanent revocation;

 

(ff) Failing to comply with the requirements for profiling and credentialing, including, but not limited to, failing to provide initial information, failing to timely provide updated information, or making misleading, untrue, deceptive, or fraudulent representations on a profile, credentialing, or initial or renewal licensure application.

(Section 456.072(1)(w)(v), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$500 fine and reprimand	$1000 fine and reprimand;
SECOND OFFENSE:	$1000 fine and probation	$1000 fine and 3 month suspension followed by probation;
THIRD OFFENSE:	$1000 fine and 1 year suspension followed by probation	denial or $1000 fine and permanent revocation;

 

(gg) Using information about people involved in motor vehicle accidents which has been derived from accident reports made by law enforcement officers for the solicitation of the people involved in the accidents.

(Section 456.072(1)(y)(x), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$500 fine and reprimand	$1000 fine and 6 month suspension followed by probation;
SECOND OFFENSE:	$1000 and reprimand	$1000 fine and 1 year suspension followed by probation;
THIRD OFFENSE:	$1000 fine 1 year suspension followed by probation	$1000 fine and permanent revocation;

 

(hh) Failing to report to the Board 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)(w), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$500 fine	$1000 fine and reprimand;
SECOND OFFENSE:	$1000 fine and probation	$1000 fine and 6 month suspension followed by probation;
THIRD OFFENSE:	$1000 fine and 1 year suspension followed by probation	denial or $1000 fine and permanent revocation;

 

(ii) Testing positive for any drug on any confirmed preemployment or employer-ordered drug screening.

(Section 456.072(1)(aa), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	probation and $500 fine	suspension to be followed by probation and $750 fine;
SECOND OFFENSE:	suspension to be followed by probation; and $750 fine	permanent revocation and $1000 fine

 

(jj) Having a license or certificate to practice any regulated profession revoked, suspended, or otherwise acted against, including the denial of certification or licensure by another state, territory, or country.

(Section 456.072(1)(a), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$1000 fine and reprimand	denial or $1000 fine and revocation;
SECOND OFFENSE:	$1000 fine and probation	permanent denial or $1000 fine and revocation;
THIRD OFFENSE:	$1000 fine, 1 year suspension followed by probation	permanent denial or $1000 fine and revocation.

 

(jj)(kk) Failing to inform the department, within 30 days, of any change of address of either the place of practice or current mailing address of any applicant or licensee.

(Section 456.035, F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	reprimand	$1,000 fine and 1 year probation;
SECOND OFFENSE:	$1,000 fine and reprimand	$1,000 fine and 6 month suspension followed by probation;
THIRD OFFENSE:	$1,000 fine and probation	$1,000 fine and permanent revocation.

 

(kk)(ll) Being terminated from a treatment program for impaired practitioners, which is overseen by an impaired practitioner consultant as described in Section 456.076, F.S., for failure to comply, without good cause, with the terms of the monitoring or treatment contract entered into by the licensee, or for not successfully completing any drug treatment or alcohol treatment program.

(Section 456.072(1)(hh)(gg), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	Suspension until compliant with contract	$1,000 fine, permanent revocation
SECOND OFFENSE:	Suspension until compliant with contract	$10,000 fine, permanent revocation
THIRD OFFENSE:	Revocation

 

(mm) Being convicted of, or entering a plea of guilty or nolo contendre 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.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$10,000 fine, permanent revocation	$10,000 fine, permanent revocation
SECOND OFFENSE:	$10,000 fine, permanent revocation	$10,000 fine, permanent revocation

 

(nn) Failing to remit the sum owed to the state for any overpayment from the Medicaid program pursuant to a final order, judgment, or stipulation or settlement.

(Section 456.072(1)(jj), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$500 fine, Letter of concern	$5,000 fine, suspension
SECOND OFFENSE:	$10,000 fine, reprimand	$10,000 fine, permanent revocation

 

(oo) 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 practicipate in the program from which the practitioner was terminated has been restored.

(Section 456.072(1)(kk), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$1,000 fine, Letter of concern	$5,000 fine, suspension
SECOND OFFENSE:	$10,000 fine, reprimand	$10,000 fine, permanent revocation

 

(pp) 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.

(Section 456.072(1)(ll), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE:	$10,000 fine, permanent revocation	$10,000 fine, permanent revocation
SECOND OFFENSE:	$10,000 fine, permanent revocation	$10,000 fine, permanent revocation

 

(2) through (4) No change.

Rulemaking Specific Authority 456.079, 491.004(5) FS. Law Implemented 456.079, 491.009 FS. History–New 3-5-89, Amended 1-3-91, 6-1-92, Formerly 21CC-5.001, Amended 1-9-94, Formerly 61F4-5.001, Amended 12-22-94, Formerly 59P-5.001, Amended 12-11-97, 10-1-00, 2-5-01, 10-15-02, 3-27-05, 1-16-06,________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: October 28, 2009
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: November 25, 2009