64B8-44.003: Disciplinary Guidelines
PURPOSE AND EFFECT: The purpose of this rule change is to bring the rule into compliance with the mandates of SB 1986.
SUMMARY: The proposed rule change updates the disciplinary guidelines for licensed dietitian and nutrition counselors, and licensed applicants in accordance with the mandates of SB 1986.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: A Statement of Estimated Regulatory Cost was prepared. The rule amendments would impose an impact to small businesses depending on the severity of the penalties imposed by the Board of Medicine. Penalties which restrict or terminate the licensees ability to work in a private practice will have an impact on small businesses.
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: 456.072(1)(t), 456.079, 458.309, 468.507 FS.
LAW IMPLEMENTED: 456.072(1)(t), 456.079, 468.517, 468.518(2) 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: Allen Hall, Executive Director, Dietetics and Nutrition Council/MQA, 4052 Bald Cypress Way, Bin #C05, Tallahassee, Florida 32399-3255
THE FULL TEXT OF THE PROPOSED RULE IS:
64B8-44.003 Disciplinary Guidelines.
(1) through (3) No change.
(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.
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VIOLATION |
RECOMMENDED RANGE OF PENALTY | ||
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(a) |
Violating Practice Act or Board or Department Rules. (468.518(1)(a), F.S.) |
(a)1. |
From a minimum of six months probation to revocation or denial of licensure, and an administrative fine from $150.00 to $1000.00, depending on the seriousness of the underlying offense and the magnitude of the violation. |
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(a)2. |
After the first offense, a minimum of one year probation to revocation or denial of licensure, and an administrative fine from $200.00 to $1,000.00, depending on the seriousness of the underlying offense and the magnitude of the violation. |
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(b) |
Inability to practice with skill and safety. (468.518(1)(b), F.S.) |
(b) |
From submission to a mental or physical examination directed towards the problem, one year probation with conditions, possible referral to the PRN to revocation or denial, and an administrative fine from $100.00 to $1000.00. |
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(c) |
Attempting to procure a license by bribery, fraud, or misrepresentation or through error of the department or the council. |
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(c)1. |
Attempting to obtain an initial license by bribery or fraud. |
(c)1. |
Denial of application and $10,000 fine. |
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(c)2. |
Attempting to renew a license by bribery or fraud. |
(c)2. |
For the first offense, from revocation of the license with ability to reapply upon payment of a $10,000 fine to permanent revocation. After the first offense, permanent revocation and a $10,000 fine. |
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(c)3. |
Obtaining or renewing a license by fraud. |
(c)3. |
For the first offense, from revocation of the license with ability to reapply upon payment of a $10,000 fine to permanent revocation. After the first offense, permanent revocation and a $10,000 fine. |
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(c)4. |
Obtaining or renewing a license through error of the department or the council. |
(c)4. |
Revocation. |
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(c)5. |
Obtaining or renewing a license through negligent misrepresentation. |
(c)5. |
For the first offense, from a $300 fine and 3 hours of continuing education on ethics to suspension and a reprimand and a $1,000 administrative fine. After the first offense, from suspension and a reprimand and a $3,000 fine to revocation or denial of application. |
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(d) |
Action taken against license by another jurisdiction. (468.518(1)(d), F.S.) |
(d) |
From imposition of discipline comparable to that which would have been imposed if the substantive violation had occurred in Florida to suspension or denial of license until it is unencumbered in the other jurisdiction, and an administrative fine from $100.00 to $1000.00. Evaluations shall be required to determine the need for referral to PRN. |
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(e) |
Conviction of a crime relating to the practice. (468.518(1)(e), F.S.) |
(e)1. |
From a one year probation with conditions to revocation or denial of the license and an administrative fine ranging from $100.00 to $1000.00. Any Board ordered probation shall be for no less time than Court ordered sanctions. |
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(e)2. |
After the first offense, from a three-year probation with conditions to revocation or denial of the license, and an administrative fine ranging from $250.00 to $1,000.00. Any Board ordered probation shall be for no less time than Court ordered sanctions. |
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(f) |
Filing a false report or failing to file a report as required. |
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(f)1. |
Negligently filing a false report or failing to file a report as required. |
(f)1. |
For the first offense, from a letter of concern or denial of application to one (1) year probation and an administrative fine from $300 to $1,500. After the first offense, from one (1) year probation to revocation, and an administrative fine from $1,500 to $3,000. |
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(f)2. |
Fraudulently filing a false report or failing to file a report as required. |
(f)2. |
For the first offense, from one (1) year probation to revocation or denial of application, and a $10,000 fine. After the first offense, from suspension to revocation and a $10,000 fine. |
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(g) |
False, deceptive, or misleading advertising. |
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(g)1. |
Negligent false, deceptive or misleading advertising. |
(g)1. |
For the first offense, from a letter of concern to one (1) year suspension or denial of application, and an administrative fine from $300 to $1,500. After the first offense, from reprimand to up to one (1) year suspension or denial of application, and an administrative fine from $1,500 to $3,000. |
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(g)2. |
Fraudulent false, deceptive or misleading advertising. |
(g)2. |
For the first offense, from reprimand to up to one (1) year suspension or denial of application, and an administrative fine of $10,000. After the first offense, from suspension up to revocation and a fine of $10,000. |
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(h) |
Committing fraud in the practice. |
(h)1. |
From one year probation with conditions to revocation or denial of licensure and an administrative fine of $10,000. |
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(h)2. |
After the first offense, from one year suspension followed by probation with conditions to revocation or denial of licensure, and an administrative fine of $10,000. |
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(i) |
Practicing on delinquent, revoked, suspended, or inactive license. |
(i)1. |
From a $250.00 administrative fine to revocation. |
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(i)2. |
After the first offense, from a $750.00 administrative fine to revocation. |
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(j) |
Treating ailments by means other than dietetics and nutrition practice. of (468.518(1)(j), F.S.) |
(j)1. |
From one year suspension followed by at least one year probation with conditions to revocation or denial licensure, and an administrative fine from $250 to $1000.00. |
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(j)2. |
For a second offense, two years suspension followed by at least one year probation with conditions to revocation or denial of licensure, and an administrative fine from $400.00 to $1,000.00. |
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(j)3. |
For a third offense, revocation or denial of licensure and an administrative fine from $800.00 to $1,000.00. |
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(k) |
Failure to maintain acceptable standards of practice. (468.518(1)(k), F.S.) |
(k)1. |
From one year probation with conditions to revocation or denial of a license, and an administrative fine from $100.00 to $1000.00. |
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(k)2. |
After the first offense, a minimum of one year suspension followed by a minimum of one year probation with conditions to revocation or denial of a license, and an administrative fine from $350.00 to $1,000.00. |
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(l) |
Kickbacks or split fee arrangements. |
(l)1. |
From six months suspension followed by one year probation with conditions to revocation or denial of licensure, and an administrative fine from $250.00 to $1000.00. |
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(l)2. |
After the first offense, from one year suspension followed by two years of probation with conditions to revocation or denial of licensure, and an administrative fine from $350.00 to $1,000.00. |
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(m) |
Advertising any experimental assessment or treatment. |
(m)1. |
From suspension to revocation or denial of licensure, and an administrative fine from $500.00 to $1000.00. |
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(m)2. |
For a second offense, revocation or denial of licensure, and an administrative fine from $750.00 to $1000.00. |
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(n) |
Failure to keep written medical records. (Rule 64B8-44.004, F.A.C.) |
(n)1. |
From probation with conditions to denial or one year suspension followed by a minimum of one year probation with conditions and an administrative fine from $100.00 to $1000.00. |
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(n)2. |
After the first offense, from one year suspension followed by a minimum of one year probation with conditions to revocation or denial of a license, and an administrative fine from $400.00 to $1,000.00. |
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(o) |
Sexual misconduct. |
(o)1. |
From one year probation with conditions to revocation or denial of licensure, and an administrative fine from $500.00 to $1,000.00. Evaluations shall be required to determine the need for referral to PRN. |
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(o)2. |
For a second offense, from one year suspension followed by a minimum of one year probation with conditions to revocation or denial of licensure, and an administrative fine from $800.00 to $1,000.00. Evaluations shall be required to determine the need for referral to PRN. |
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(o)3. |
After the second offense, revocation of license and a fine of $1,000.00. |
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(p) |
Failing to report in writing within 30 days after the licensee has been convicted or found guilty of, or has entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction. (455.624(1)(w), F.S.) |
(p)1. |
From a $100.00 administrative fine to revocation or denial of a license. |
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(p)2. |
After the first offense, from a $250.00 administrative fine to revocation or denial of a license. |
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(q) |
Testing positive for drugs on employment drug screening. |
(q) |
From submission to a mental or physical examination directed towards the problem and one year probation with conditions, to revocation or denial, and administrative fine from $100.00 to $1,000.00. |
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(r) |
Being terminated from or failing to successfully complete an impaired practitioners treatment program. |
(r) |
First offense Minimum stayed suspension and probation for a period of one (1) year with a fine of $500.00 to a maximum of suspension or denial of license until successful completion or receipt of a written confirmation from the program that further treatment is neither required nor indicated followed by a one (1) year probation and a fine of $1,500.00. Subsequent offenses Minimum suspension for three (3) years or until licensee is able to demonstrate to the Board the ability to practice with reasonable skill and safety, whichever is longer and a fine of $1,000.00 to a maximum of revocation or denial of license and a $3,000.00 fine. |
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(s) |
Performing or attempting to perform health care services on the wrong patient, a wrong procedure, an unauthorized procedure, or a procedure that is medically unnecessary or otherwise unrelated to the patients diagnosis or medical condition. |
(s) |
For the first offense, from 1 year probation with conditions and a $1,000 fine to 1 year suspension, 2 years probation and a $5,000 fine. For the second offense, from 1 year suspension, 2 years probation with conditions and a $5,000 fine to revocation and a $10,000 fine. |
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(t) |
Failure to notify patients of practioners license type or failure to identify license type in advertisement that names a practioner. |
(t) |
First offense from letter of concern to 1 year suspension and an administrative fine of $300 to $1,500. After first offense from reprimand to 3 year suspension and an administrative fine of $1,500 to $3,000. |
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(u) |
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. |
(u) |
Revocation or non-renewal or denial of the initial license and a fine of $10,000. |
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(v) |
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. (456.072(1)(jj), F.S.) |
(v) |
For the first offense, one year of probation, with conditions and a $2,500 fine. For the second offense, one year of suspension and a $5,000 fine. |
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(w) |
Being terminated from the state Medicaid Program pursuant to s. 409.913, 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. |
(w) |
Revocation or non-renewal or denial of the initial license and a fine of $10,000. |
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(x) |
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. |
(x) |
Revocation or non-renewal or denial of the initial license and a fine of $10,000. |
(5) through (7) No change.
Rulemaking Specific Authority 456.072(1)(t), 456.079, 458.309, 468.507 FS. Law Implemented 456.072(1)(t), 456.079, 468.517, 468.518(2) FS. HistoryNew 12-4-90, Formerly 21M-50.003, Amended 6-22-94, Formerly 61F6-50.003, 59R-44.003, Amended 3-16-98, 8-19-99, 9-28-00, 9-26-01, 2-13-03, 4-10-06, 1-8-07, _________.
