RULE NO.:RULE TITLE:
64B1-9.001Disciplinary Guidelines
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. 46 No. 126, June 29, 2020 issue of the Florida Administrative Register.
The changes are in response to JAPC comments, but are also based on public comment, and discussion and information received at the September 25, 2020 public meeting of the Board.
64B1-9.001 Disciplinary Guidelines.
(1) When the Board finds any person has committed any of the acts set forth in Section 456.072(1) or 457.109(1), F.S., or a telehealth provider registered under section 456.47(4), F.S., it shall issue a final order imposing appropriate penalties as recommended in the following disciplinary guidelines. The language identifying offenses below is descriptive only. The full language of each statutory provision cited must be consulted to determine the conduct included.
(a) Attempting to obtain, obtaining, or renewing a license to practice acupuncture by: bribery, or fraudulent misrepresentations, or through an error of the Department or Board.
(Sections 457.109(1)(a), 456.072(1)(h), F.S.)
1. Error of the Department or Board
MINIMUM
MAXIMUM
FIRST OFFENSE
Lletter of Cconcern, or laws and rules continuing education
$1,000 fine
SUBSEQUENT OFFENSES
Llaws and rules continuing education
$1,000 fine
Telehealth Registrants
FIRST OFFENSE
Ssuspension and a corrective action plan
Rrevocation
ADDITIONAL OFFENSES
Rrevocation
2. Bribery or fraudulent misrepresentation
MINIMUM
MAXIMUM
FIRST OFFENSE
Reprimand and $10,000 fine
$10,000 fine and revocation
SUBSEQUENT OFFENSES
Reprimand and $10,000 fine
$10,000 fine and revocation
Telehealth Registrants
FIRST OFFENSE
Rrevocation
ADDITIONAL OFFENSES
Rrevocation
(b) Having a license to practice acupuncture revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of another state, territory, or country.
(Sections 457.109(1)(b), 456.072(1)(f), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Lletter of Cconcern
Suspension and/or fine and/or continuing education revocation
SUBSEQUENT OFFENSES
$500 fine and suspension and/or continuing education
Rrevocation
Telehealth Registrants
FIRST OFFENSE
Letter of Concern reprimand
Suspension and corrective action plan revocation
ADDITIONAL OFFENSES
Oone year suspension and corrective action plan
Rrevocation
(c) Being convicted or found guilty of, or entering a plea of nolo contendre to, regardless of adjudication, of a crime in any jurisdiction which relates to the practice of acupuncture or to the ability to practice acupuncture.
(Sections 457.109(1)(c), 456.072(1)(c), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Llletter of Cconcern
Suspension and/or fine and/or continuing education, $10,000 fine
SUBSEQUENT OFFENSES
Suspension and/or fine and/or continuing education $1,000 fine
suspension or Rrevocation
Telehealth Registrants
FIRST OFFENSE
Ssuspension and a corrective action plan
Rrevocation
ADDITIONAL OFFENSES
Oone to two year suspension
Rrevocation
(d) False, deceptive, or misleading advertising or advertising which claims that acupuncture is useful in curing any disease.
(Section 457.109(1)(d), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Lletter of Cconcern
$1,000 fine
SUBSEQUENT OFFENSES
Suspension and/or fine and/or continuing education $1,000 fine
suspension or Rrevocation
Telehealth Registrants
FIRST OFFENSE
Lletter of Cconcern
Rreprimand
ADDITIONAL OFFENSES
Suspension and a corrective action plan reprimand
Rrevocation
(e) Advertising, practicing, or attempting to practice under a name other than one’s own.
(Section 457.109(1)(e), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Lletter of Cconcern
$1,000 fine
SUBSEQUENT OFFENSES
Suspension and/or fine and/or continuing education $1,000 fine
suspension or Rrevocation
Telehealth Registrants
FIRST OFFENSE
Lletter of Cconcern
Rreprimand
ADDITIONAL OFFENSES
Suspension and a corrective action plan reprimand
Rrevocation
(f) Failing to report to the Department any person who the licensee knows is in violation of this chapter or of the rules of the Department or Board.
(Sections 457.109(1)(f), 456.072(1)(i), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Lletter of Cconcern
$500 fine
SUBSEQUENT OFFENSES
Suspension and/or fine and/or continuing education $500 fine
suspension or Rrevocation
Telehealth Registrants
FIRST OFFENSE
Lletter of Cconcern
Rreprimand
ADDITIONAL OFFENSES
Suspension and a corrective action plan
Rrevocation
(g) Aiding, assisting, procuring, employing, or advising any unlicensed person to practice acupuncture contrary to chapter 457 or 456, F.S., or to a rule of the Department or Board.
(Sections 457.109(1)(g), 456.072(1)(j), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Reprimand and $500 fine and continuing education
$5,000 fine and or suspension
SUBSEQUENT OFFENSES
$5,000 fine and/or suspension
suspension or Rrevocation
Telehealth Registrants
FIRST OFFENSE
Rreprimand
Rrevocation
ADDITIONAL OFFENSES
Ssuspension and a corrective action plan
Rrevocation
(h) Failing to perform any statutory or legal obligation placed upon a licensed acupuncturist.
(Sections 457.109(1)(h), 456.072(1)(k), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Lletter of Cconcern and $500 fine
Ssuspension and $1,000 fine or revocation
SUBSEQUENT OFFENSES
Suspension and $1,000 $500 fine
suspension or Rrevocation
Telehealth Registrants
FIRST OFFENSE
Rreprimand
Ssuspension and a corrective action plan
ADDITIONAL OFFENSES
Ssuspension and a corrective action plan
Rrevocation
(i) Making or filing a report, signed in the capacity of a licensed acupuncturist, which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so.
(Sections 457.109(1)(i), 456.072(1)(l), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Llette of Cconcern and $500 fine
$5,000 and or suspension
SUBSEQUENT OFFENSES
$5,000 fine and continuing education
Ssuspension or revocation
Telehealth Registrants
FIRST OFFENSE
Rreprimand
Rrevocation
ADDITIONAL OFFENSES
Ssuspension and a corrective action plan
Rrevocation
(j) Exercising influence within a patient-acupuncturist relationship for purposes of engaging a patient in sexual activity, or engaging or attempting to engage a patient in verbal or physical sexual activity.
(Sections 457.109(1)(j), 456.072(1)(v), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Reprimand and $500 fine
$10,000 fine, suspension and or revocation
SUBSEQUENT OFFENSES
$5,000 fine and suspension
Rrevocation
Telehealth Registrants
FIRST OFFENSE
Ssuspension and a corrective action plan
Rrevocation
ADDITIONAL OFFENSES
Rrevocation
(k) Making misleading, deceptive, untrue, or fraudulent representations in or related to the practice of acupuncture or employing a trick or scheme in the practice of acupuncture when such scheme or trick fails to conform to the generally prevailing standards of treatment in the community.
(Section 457.109(1)(k), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Reprimand and $10,000 fine
$10,000 fine and revocation
SUBSEQUENT OFFENSES
Reprimand and $10,000 fine
$10,000 fine and revocation
Telehealth Registrants
FIRST OFFENSE
Lletter of Cconcern
Rreprimand
ADDITIONAL OFFENSES
Ssuspension and a corrective action plan
Rrevocation
(l) Soliciting patients, either personally or through an agent, through the use of fraud, intimidation, undue influence, or a form of overreaching or vexatious conduct.
(Sections 457.109(1)(l), 456.072(1)(y), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Reprimand and $10,000 fine
$10,000 fine, suspension and or revocation
SUBSEQUENT OFFENSES
Reprimand and $10,000 fine
$10,000 fine, suspension and or revocation
Telehealth Registrants
FIRST OFFENSE
Rreprimand
Ssuspension and a corrective action plan
ADDITIONAL OFFENSES
Rreprimand
Rrevocation
(m) Failing to keep written medical records which are consistent with the standard of care in acupuncture.
(Section 457.109(1)(m), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Lletter of Cconcern and continuing education in documentation
Reprimand and $1,000 fine
SUBSEQUENT OFFENSES
Reprimand and $1,000 fine
Pprobation and or suspension
Telehealth Registrants
FIRST OFFENSES
Rreprimand
Ssuspension and a corrective action plan
ADDITIONAL OFFENSES
Ssuspension and a corrective action plan
Rrevocation
(n) Exercising influence on the patient to exploit the patient for the financial gain of the licensee or of a third party.
(Sections 457.109(1)(n), 456.072(1)(n), F.S.
MINIMUM
MAXIMUM
FIRST OFFENSE
Reprimand and $1,000 fine
Suspension and/or $10,000 fine, suspension and or revocation
SUBSEQUENT OFFENSES
$2,000 fine and suspension
Rrevocation
Telehealth Registrants
FIRST OFFENSE
Rreprimand
Ssuspension and a corrective action plan
ADDITIONAL OFFENSES
Rreprimand
Rrevocation
(o) Being unable to practice acupuncture with reasonable skill and safety to patients by reason of illness, use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition.
(Sections 457.109(1)(o), 456.072(1)(z), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Ssuspension until such time as the licensee can provide Board’s satisfaction to demonstrate ability to practice with reasonable skill and safety
Rrevocation
SUBSEQUENT OFFENSES
Ssuspension until such time as the licensee can provide Board’s satisfaction to demonstrate ability to practice with reasonable skill and safety
Rrevocation
Telehealth Registrants
FIRST OFFENSE
Ssuspension and a corrective action plan
Rrevocation
ADDITIONAL OFFENSES
Ssuspension and a corrective action plan
Rrevocation
(p) Gross or repeated malpractice or the failure to practice acupuncture with that level of care, skill, and treatment which is recognized by a reasonably prudent, similar acupuncturist as being acceptable under similar conditions and circumstances.
(Section 457.109(1)(p), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Lletter of Cconcern and continuing education
$1,000 fine, suspension and continuing education
SUBSEQUENT OFFENSES
Pprobation or suspension and/or $5,000 fine
Rrevocation
Telehealth Registrants
FIRST OFFENSE
Rreprimand
Ssuspension and corrective action plan
ADDITIONAL OFFENSES
Ssuspension and a corrective action plan
Rrevocation
(q) 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 he or she is not competent to perform.
(Sections 457.109(1)(q), 456.072(1)(o), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Lletter of Cconcern and continuing education
$1,000 fine, suspension and continuing education
SUBSEQUENT OFFENSES
Pprobation or suspension and/or $2,000 fine
Rrevocation
Telehealth Registrants
FIRST OFFENSE
Rreprimand
Ssuspension and a corrective action plan
ADDITIONAL OFFENSES
Ssuspension and a corrective action plan
Rrevocation
(r) Delegating or contracting for professional responsibilities by a person when the licensee delegating or contracting for such responsibilities knows or has reason to know that such person is not qualified by training, experience, or licensure to perform them.
(Sections 457.109(1)(r), 456.072(1)(p), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Lletter of Cconcern and continuing education
$1,000 fine, suspension and CE
SUBSEQUENT OFFENSES
Pprobation or suspension and/or $2,000 fine
Rrevocation
Telehealth Registrants
FIRST OFFENSE
Rreprimand
Ssuspension and a corrective action plan
ADDITIONAL OFFENSES
Ssuspension and a correction action plan
Rrevocation
(s) Violating any provision of Chapter 457 or 456, F.S., a rule of the Board or Department, or a lawful order of the Board previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department.
(Sections 457.109(1)(s), 456.072(1)(q), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Lletter of Cconcern and $500 fine
Ssuspension and or revocation
SUBSEQUENT OFFENSES
$500 fine and suspension
Ssuspension and or Rrevocation
Telehealth Registrants
FIRST OFFENSE
Rreprimand
Rrevocation
ADDITIONAL OFFENSES
Ssuspension and a corrective action plan
Rrevocation
(t) Conspiring with another to commit an act, or committing an act, which would tend to coerce, intimidate, or preclude another licensee from lawfully advertising his or her services.
(Section 457.109(1)(t), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Lletter of Cconcern
$1,000 fine
SUBSEQUENT OFFENSES
$1,000 fine and suspension
suspension or Rrevocation
Telehealth Registrants
FIRST OFFENSE
Lletter of Cconcern
Reprimand
ADDITIONAL OFFENSES
Ssuspension and a corrective action plan
Revocation
(u) Fraud or deceit or gross negligence, incompetence, or misconduct in the operation of a course of study.
1. Gross negligence, incompetence, or misconduct:
(Section 457.109(1)(u), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Reprimand and $2,000 fine
$10,000 fine and probation or suspension revocation
SUBSEQUENT OFFENSES
Suspension and $2,000 fine
$10,000 fine and revocation
Telehealth Registrants
FIRST OFFENSE
Ssuspension and a corrective action plan
Rrevocation
ADDITIONAL OFFENSES
Rrevocation
2. Fraud or deceit:
MINIMUM
MAXIMUM
FIRST OFFENSE
Reprimand and $10,000 fine
$10,000 fine and revocation
SUBSEQUENT OFFENSES
Reprimand and $10,000 fine
$10,000 fine and revocation
Telehealth Registrants
FIRST OFFENSE
Ssuspension and a corrective action plan
Rrevocation
ADDITIONAL OFFENSES
Ssuspension
Rrevocation
(v) Failing to comply with state, county, or municipal regulations or reporting requirements, relating to public health and the control of contagious and infectious diseases.
(Section 457.109(1)(v), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Reprimand and $500 fine and continuing education
Reprimand and $1,000 and continuing education
SUBSEQUENT OFFENSES
Reprimand and $1,000 and continuing education
Reprimand and $5,000 and continuing education
Telehealth Registrants
FIRST OFFENSE
Rreprimand
Ssuspension and a corrective action plan
ADDITIONAL OFFENSES
Ssuspension and a corrective action plan
Rrevocation
(w) Failing to comply with any rule of the Board relating to health and safety, including, but not limited to, the sterilization of needles and equipment and the disposal of potentially infectious materials.
(Sections 457.072(1)(w), 456.072(1)(b), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Reprimand and $500 fine and continuing education
Reprimand and $1,000 and continuing education
SUBSEQUENT OFFENSES
Reprimand and $1,000 and continuing education
Reprimand and $5,000 and continuing education
Telehealth Registrants
FIRST OFFENSE
Rreprimand
Ssuspension and a corrective action plan
ADDITIONAL OFFENSES
Ssuspension and a correction action plan
Rrevocation
(x) Failing to comply with continuing education requirements, including requirements for HIV/AIDS education.
(Sections 457.109(1)(x), 456.072(1)(b), and (e), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Ssuspension until continuing education completed
$1,000 and suspension until continuing education completed
SUBSEQUENT OFFENSES
Ssuspension until continuing education completed
Rrevocation
Telehealth Registrants
FIRST OFFENSE
Lletter of Cconcern Concern
Rreprimand
ADDITIONAL OFFENSES
Ssuspension and a corrective action plan
Ssuspension and a corrective action plan
(y) 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 $500 fine
Ssuspension and $1,000 fine or revocation
SUBSEQUENT OFFENSES
Suspension and $2,000 fine revocation
Rrevocation
Telehealth Registrants
FIRST OFFENSE
Rreprimand
Ssuspension
ADDITIONAL OFFENSES
Ssuspension
Rrevocation
(z) 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
Lletter of Cconcern
$1,000 fine and/or suspension
SUBSEQUENT OFFENSES
$2,000 fine and suspension
Rrevocation
Telehealth Registrants
FIRST OFFENSE
Lletter of Cconcern
Rreprimand
ADDITIONAL OFFENSES
Ssuspension and a corrective action plan
Suspension and a corrective action plan revocation
(aa) Failing to report to the Board in writing with 30 days after the licensee has been convicted or found guilty of, or entered a pleas of nolo contendere to, regardless of adjudication, a crime in any jurisdiction.
(Section 456.072(1)(x), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Lletter of Cconcern
$2,000 fine and CE’s
SUBSEQUENT OFFENSES
Reprimand and $500 fine
$2,000 fine and CE
Telehealth Registrants
FIRST OFFENSE
Lletter of Cconcern
Rreprimand
ADDITIONAL OFFENSES
Ssuspension and a corrective action plan
Rrevocation
(bb) Using information about people involved in a motor vehicle accident which has been derived from accident reports made by law enforcement officers or persons involved in accidents pursuant to 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 solicitation of the people involved in such accidents.
(Section 456.072(1)(y), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Reprimand and $500 fine
Ssuspension
SUBSEQUENT OFFENSES
Reprimand and $1,000 fine
Rrevocation
Telehealth Registrants
FIRST OFFENSE
Ssuspension and a corrective action plan
Ssuspension and a corrective action plan
ADDITIONAL OFFENSES
Ssuspension and a corrective action plan
Rrevocation
(cc) 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.
(Section 456.072(1)(ii), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Reprimand and $10,000 fine
Rrevocation
SUBSEQUENT OFFENSES
Reprimand and $10,000 fine
Rrevocation
Telehealth Registrants
FIRST OFFENSE
Rrevocation
ADDITIONAL OFFENSES
Rrevocation
(dd) Failing to comply with, failing to successfully complete or or being terminated from an impaired practitioner treatment program.
(Section 456.072(1)(hh), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Suspension
Revocation
SUBSEQUENT OFFENSES
Suspension
Revocation
Telehealth Registrants
FIRST OFFENSE
Suspension and corrective action plan
Suspension and corrective action plan
ADDITIONAL OFFENSES
Suspension and corrective action plan
Revocation
(ee)(dd) Failing to remit the sum owed to the State for an overpayment from the Medicaid Program pursuant to a final order, judgment, or Stipulation or settlement. Section 456.072(1)(jj), F.S.
(Section 456.072(1)(jj), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Ssuspension until complied
Rrevocation
SUBSEQUENT OFFENSES
Ssuspension until complied
Rrevocation
Telehealth Registrants
FIRST OFFENSE
Ssuspension and a corrective action plan
Rrevocation
ADDITIONAL OFFENSES
Ssuspension and a corrective action plan
Rrevocation
(ff)(ee) 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.
(Section 456.072(1)(kk), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Rrevocation
Rrevocation
Telehealth Registrants
FIRST OFFENSE
Rrevocation
ADDITIONAL OFFENSES
Rrevocation
(gg)(ff) 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 related to health care fraud. Section 456.072(1)(ll), F.S.
(Section 456.072(1)(ll), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
$10,000 fine
$10,000 fine and/or suspension or revocation
SUBSEQUENT OFFENSES
$10,000 fine
$10,000 fine and revocation
Telehealth Registrants
FIRST OFFENSE
Rrevocation
ADDITIONAL OFFENSES
Rrevocation
(hh)(gg) Willfully failing to comply with Section 627.64194 or 641.513, F.S., with such frequency as to indicate a general business practice. Section 456.072(1)(oo).
(Section 456.072(1)(oo), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Reprimand and $1,000 fine letter of concern
$4,000.00 fine and suspension
SUBSEQUENT OFFENSES
$51,000 fine and probation
$10,000 fine and revocation
Telehealth Registrants
FIRST OFFENSE
Ssuspension and a corrective action plan
Rrevocation
ADDITIONAL OFFENSES
Ssuspension and a corrective action plan
Rrevocation
(ii) Providing information, including written documentation, indicating that a person has a disability or supporting a person’s need for an emotional support animal under s. 760.27 without personal knowledge of the person’s disability or disability-related need for the specific emotional support animal.
(Section 456.072(1)(pp), F.S.)
MINIMUM
MAXIMUM
FIRST OFFENSE
Reprimand and $1,000 fine
Suspension and $4,000 fine
SUBSEQUENT OFFENSE
Suspension and $8,000 fine
Revocation
Telehealth Registrants
FIRST OFFENSE
Suspension and a corrective action plan
Revocation
ADDITIONAL OFFENSES
Suspension and a corrective action plan
Revocation
(2) Based upon consideration of the following factors, the Board may impose disciplinary action other than those penalties recommended above:
(a) through (k) No change.
(l) Any action relating to discipline or denial of a certificate or license in another state including, findings of guilt or innocence, standards applied, penalties imposed and penalties served.;
(m) Any other mitigating circumstances.
(3) through (5) No change.
Rulemaking Authority 456.079(1), 456.47, 457.104 FS. Law Implemented 456.072, 456.079, 456.47(1)(f), 457.109 FS. History–New 12-8-86, Amended 8-6-89, Formerly 21AA-9.001, 61F1-9.001, Amended 11-21-95, Formerly 59M-9.001, Amended 8-3-00, 5-20-02, 5-24-04, 1-26-06, 5-2-12, 3-1-17, 2-27-18, .
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Kama Monroe, JD, Executive Director, Board of Acupuncture, 4052 Bald Cypress Way, Bin # C06, Tallahassee, Florida 32399-3257, Kama.Monroe@flhealth.com.