The Board proposed the rule amendment to clarify existing disciplinary guidelines.

 

DEPARTMENT OF HEALTH

Board of Medicine

RULE NO.:RULE TITLE:

64B8-8.001Disciplinary Guidelines

PURPOSE AND EFFECT: The Board proposed the rule amendment to clarify existing disciplinary guidelines.

SUMMARY: To clarify existing disciplinary guidelines.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: During discussion of the economic impact of this rule at its Board meeting, the Board concluded that this rule change will not have any impact on licensees and their businesses or the businesses that employ them. The rule will not increase any fees, business costs, personnel costs, will not decrease profit opportunities, and will not require any specialized knowledge to comply. This change will not increase any direct or indirect regulatory costs. Hence, the Board determined that a Statement of Estimated Regulatory Costs (SERC) was not necessary and that the rule will not require ratification by the Legislature. No person or interested party submitted additional information regarding the economic impact at that time.

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.

RULEMAKING AUTHORITY: 456.079, 456.47(7), 458.309, 458.331(5) FS.

LAW IMPLEMENTED: 381.986(3)(a), 456.47, 456.50(2), 456.0575, 456.072, 456.079, 458.331(5) FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Paul Vazquez, J.D., Executive Director, Board of Medicine/MQA, 4052 Bald Cypress Way, Bin # C03, Tallahassee, Florida 32399-3253 or [e-mail].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

     64B8-8.001 Disciplinary Guidelines.

     (1) No change.

     (2) 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. In addition to the guideline penalties provided herein, if the violation is for fraud or making a false or fraudulent representation, the Board shall impose a fine of $10,000 per count.  In no event for the penalties set forth below shall the fine exceed $10,000.00 per count.

 

RECOMMENDED RANGE OF PENALTY
				FOR TELEHEALTH REGISTRANTS
VIOLATION (a) Attempting to obtain, obtaining or renewing a license or certificate by bribery, fraud or through an error of the Department or the Board. (Section 458.331(1)(a), F.S.) (Section 456.072(1)(h), F.S.)	FIRST OFFENSE	SECOND OFFENSE	THIRD OFFENSE	FIRST OFFENSE	SECOND OR SUBSEQUENT OFFENSE
1. No change.
2. Attempting to renew a license by bribery or fraud.	2. Revocation of the license and payment of a $5,000.00 fine to revocation and a $10,000.00 fine.  If the offense includes an element of fraud or making a false or fraudulent representation the fine shall be $10,000.00.	2. Revocation and a $10,000.00 fine.		2. Revocation	2. Revocation
3. Obtaining or renewing a license by bribery or fraud.	3. Revocation of the license and payment of a $5,000.00 fine to revocation and a $10,000.00 fine. If the offense  includes an element of fraud or making a false or fraudulent representation the fine shall be 10,000.00.	3. Revocation and a $10,000.00 fine.		3. Revocation	3. Revocation
4. No change.
(b)  No change.
(c) Guilty of crime directly relating to practice or ability to practice. (Section 458.331(1)(c), F.S.) (Section 456.072(1)(c), F.S.)	(c) From probation to revocation or denial of the license, an administrative fine ranging from $5,000.00 $1,000.00 to $10,000.00.	(c) From suspension to revocation or denial of the license, an administrative fine ranging from $7,500.00 $5,000.00 to $10,000.00.		(c) From a reprimand to revocation or denial.	(c) From suspension  to revocation or denial.
1. through 2. No change.
(d) through (e) No change.
(f) Aiding unlicensed practice. (Section 458.331(1)(f), F.S.) (Section 456.072(1)(j), F.S.)	(f) From probation to revocation or denial and an administrative fine from $5,000.00 $1,000.00 to $10,000.00.	(f) From suspension, to be followed by a period of probation, to revocation or denial and an administrative fine from $7,500.00 $5,000.00 to $10,000.00.		(f) From suspension with corrective action plan to revocation or denial.	(f) From suspension to revocation or denial.
(g) Failure to perform legal obligation. (Section 458.331(1)(g), F.S.) (Section 456.072(1)(k), F.S.)	(g) For any offense not specifically listed herein, based upon the severity of the offense and the potential for patient harm, from a letter of concern to revocation or denial, and an administrative fine from $5,000.00 $1,000.00 to $10,000.00, unless otherwise provided by law.	(g) For any offense not specifically listed herein, based upon the severity of the offense and the potential for patient harm, from a reprimand to revocation or denial, and an administrative fine from $7,500.00 $5,000.00 to $10,000.00, unless otherwise provided by law.		(g) For any offense not specifically listed herein, based upon the severity of the offense and the potential for patient harm, from a letter of concern to revocation or denial, unless otherwise provided by law.	(g) For any offense not specifically listed herein, based upon the severity of the offense and the potential for patient harm, from a reprimand to revocation or denial, unless otherwise provided by law.
1. through 9. No change.
(h) No change.
(i) Kickbacks or split fee arrangements. (Section 458.331(1)(i), F.S.); (Section 456.054, F.S.)	(i) A refund of fees paid by or on behalf of the patient, and from six (6) months suspension, to be followed by a period of probation, to revocation or denial and an administrative fine from $5,000.00 $1,000.00 to $10,000.00.	(i) A refund of fees paid by or on behalf of the patient, and from a two (2) year suspension, to be followed by a period of probation, to revocation or denial and an administrative fine from $7,500.00 $5,000.00 to $10,000.00.		(i) A refund of fees paid by or on behalf of the patient, and from six (6) months suspension with a corrective action plan, to revocation or denial.	(i) A refund of fees paid by or on behalf of the patient, and from a two (2) year suspension with a corrective action plan, to revocation.
(j) No change.
(k) Deceptive, untrue, or fraudulent representations in the practice of medicine. (Section 458.331(1)(k), F.S.); (Sections 456.072 (1)(a), (m), F.S.)	(k) From probation to revocation or denial, and an administrative fine from $5,000.00 $1,000.00 to $10,000.00. If the offense  includes an element of fraud or making a false or fraudulent representation the fine shall be $10,000.00.	(k) From suspension, to be followed by a period of probation, to revocation or denial, and an administrative fine from $7,500.00 $5,000.00 to $10,000.00. If the offense  includes an element of fraud or making a false or fraudulent representation the fine shall be $10,000.00.		(k) From a reprimand to revocation or denial.	(k) From suspension with a corrective action plan, to revocation.
(l) Improper solicitation of patients. (Section 458.331(1)(l), F.S.)	(l) From one (1) year suspension, to be followed by a period of probation, to revocation or denial and an administrative fine from $5,000.00 $1,000.00 to $10,000.00.	(l) From one (1) year suspension, to be followed by a period of probation, to revocation or denial and an administrative fine from $7,500.00 5,000.00 to $10,000.00.		(l) From one (1) year suspension with a corrective action plan, to revocation or denial.	(l) From suspension with a corrective action plan, to revocation.
(m) Failure to keep appropriate written medical records. (Sections 458.331 (1)(m), F.S.; 456.47(3), F.S.)	(m) From a reprimand to denial or two (2) years suspension followed by probation, and an administrative fine from $1,000.00 to $5,000.00. $10,000.00	(m) From probation to suspension followed by probation or denial, and an administrative fine from $5,000.00 to $10,000.00.		(m) From a reprimand to two (2) years suspension with a corrective action plan or denial.	(m) From six (6) month suspension with a corrective action plan to  (2) years suspension with a corrective action plan.
(n) through (o) No change.
(p) Performing professional services not authorized by patient. (Section 458.331(1)(p), F.S.)	(p) From a reprimand to two (2) years suspension, to be followed by a period of probation or denial and an administrative fine from $5,000.00 $1,000.00 to $10,000.00.	(p) From probation, to revocation and an administrative fine of $7,500.00 $5,000.00 to $10,000.00.		(p) From a reprimand or denial to two (2) years suspension with a corrective action plan or denial.	(p) From suspension with a corrective action plan to revocation or denial.
(q) Inappropriate or excessive prescribing. (Section 458.331(1)(q), F.S.)	(q) From one (1) year probation to revocation or denial and an administrative fine from $5,000.00 $1,000.00 to $10,000.00.	(q) From suspension, to be followed by a period of probation, to revocation or denial and an administrative fine from $7,500.00 $5,000.00 to $10,000.00.		(q) From a three (3) month suspension with a corrective action plan to revocation or denial.	(q) From one (1) year suspension with a corrective action plan, revocation or denial.
(r) through (s) No change.
(t) Failure to practice medicine in accordance with appropriate level of care, skill and treatment recognized in general law related to the practice of medicine. (Sections 456.50(1)(g), F.S., 458.331(1)(t), F.S.; 456.47(2)(a), F.S.)	(t) From one (1) year probation to revocation or denial and an administrative fine from $2,500.00 $1,000.00 to $10,000.00.	(t) From two (2) years probation to revocation or denial and an administrative fine from $5,000.00 to $10,000.00.		(t) From three (3) month suspension with corrective action plan to revocation or denial	(t) From six  (6) month suspension with corrective action plan to revocation.
1. Gross Malpractice.	1. From one (1) year suspension followed by three (3) years probation to revocation or denial and an administrative fine from $5,000.00 $1,000.00 to $10,000.00.	1. From suspension, to be followed by a period of probation or denial to revocation and an administrative fine of $7,500.00 $5,000.00 to $10,000.00.		1. From one (1) year suspension with a corrective action plan, to revocation or denial.	1. From two (2) year suspension with a corrective action plan to revocation.
2. Repeated Malpractice as defined in Section 456.50, F.S.	2. Revocation or denial and an administrative fine from $7,500.00 $1,000.00 to $10,000.00.			2. Revocation or denial.
(u) No change.
(v) Practicing beyond scope permitted. (Section 458.331(1)(v), F.S.); (Section 456.072(1)(o), F.S.)	(v) From two (2) years suspension; to revocation or denial and an administrative fine from $5,000.00 $1,000.00 to $10,000.00.	(v) From three (3) year suspension to revocation or denial and an administrative fine from $7,500.00 $5,000.00 to $10,000.00.		(v) From two (2) years suspension to revocation or denial.	(v) From three (3) year suspension to revocation or denial.
(w) Delegation of professional responsibilities to unqualified person. (Section 458.331 (1)(w), F.S.); (Section 456.072(1)(p), F.S.)	(w) From one (1) year probation, to denial or five (5) years suspension followed by probation, and an administrative fine from $5,000.00 $1,000.00 to $10,000.00.	(w) From suspension, to be followed by a period of probation; to revocation or denial and an administrative fine from $7,500.00 $5,000.00 to $10,000.00.		(w) From three (3) month suspension with corrective action plan to five (5) year suspension with corrective action plan or denial.	(w) From six (6) month suspension with a corrective action plan to revocation.
(x)1. Violation of a lawful order of the board or department previously entered in a  disciplinary hearing or failure to comply with a lawfully issued subpoena of the department. (Sections 458.331(1)(x), F.S.); (Sections 456.072(1) (b), (q), F.S.)	(x)1. For any offense not specifically listed herein, based upon the severity of the offense and the potential for patient harm, from a reprimand, to revocation or denial and an administrative fine from $5,000.00 $1,000.00 to $10,000.00.	(x)1. From probation, to revocation or denial and an administrative fine from $7,500.00 $5,000.00 to $10,000.00.		(x)1. For any offense not specifically listed herein, based upon the severity of the offense and the potential for patient harm, from a reprimand, to revocation or denial.	(x)1. From suspension to revocation,or denial.
2. No change.
(y) No change.
(z) Aiding an unlawful abortion. (Section 458.331(1)(z), F.S.)	(z) From one (1) year suspension, to be followed by a period of probation, to revocation or denial and an administrative fine from $5,000.00 $1,000.00 to $10,000.00.	(z) From eighteen (18) month suspension, to be followed by a period of probation; to revocation or denial and an administrative fine from $7,500.00 $5,000.00 to $10,000.00.		(z) From one (1) year suspension with a corrective action plan, to revocation or denial.	(z) From eighteen (18) month suspension with a corrective action plan, to revocation or denial.
(aa) through (bb)  No change.
(cc) Improper prescribing of Schedule II amphetamine or sympathomimetic amine drug. (Section 458.331(1)(cc), F.S.	(cc) From probation, to denial or two (2) years suspension followed by probation or denial, and an administrative fine from $5,000.00 $1,000.00 to $10,000.00.	(cc) From suspension, to be followed by a period of probation, to revocation or denial of the license and an administrative fine ranging from $7,500.00 $5,000.00 to $10,000.00.		(cc) From a suspension with a corrective action plan to  two (2) years suspension with a corrective action plan or denial.	(cc) From thirty (30) day suspension with a corrective action plan, to revocation or denial.
(dd) through (ee) No change.
(ff) Use of amygdalin (laetrile). (Section 458.331(1)(ff), F.S.)	(ff) From one (1) year suspension, to be followed by a period of probation, to revocation or denial and an administrative fine from $5,000.00 $1,000.00 to $10,000.00.	(ff) From eighteen (18) month suspension, to be followed by a period of probation, to revocation or denial of the license and an administrative fine ranging from $7,500.00 $5,000.00 to $10,000.00.		(ff) From one (1) year suspension with a corrective action plan to revocation or denial.	(ff) From eighteen (18) month suspension with a corrective action plan to revocation or denial.
(gg) Misrepresenting or concealing a material fact. (Section 458.331(1)(gg), F.S.)	(gg) From suspension, to be followed by a period of probation, to revocation of license or denial and an administrative fine from $5,000.00 $1,000.00 to $10,000.00. If the offense  includes an element of fraud or making a false or fraudulent representation the fine shall be $10,000.00.	(gg) From a minimum of thirty (30) day suspension, to be followed by a period of probation, to revocation or denial and an administrative fine from $7,500.00 $5,000.00 to $10,000.00. If the offense  includes an element of fraud or making a false or fraudulent representation the fine shall be $10,000.00.		(gg) From suspension with a corrective action plan or revocation to denial.	(gg) From a minimum of thirty (30) day suspension with a corrective action plan or revocation or denial.
(hh) through (ll) No change.
(mm) Failing to provide patients with information about patient rights and how to file a patient complaint. (Section 458.331(1)(mm), F.S.); (Section 456.072(1)(u), F.S.)	(mm) Corrective action for nonwillful violations. Letter of concern to reprimand and corrective action for willful willfull violations and an administrative fine from $100.00 to $200.00.	(mm) Administrative fine of up to $100.00 for nonwillful violations; and an administrative fine from $250.00 to $500.00 for willful violations.		(mm) From a letter of concern to seven (7) day suspension with corrective action plan.	(mm) From a reprimand to a ten (10) day suspension with corrective action plan.
(nn) 1. Violating any provision of   chapters 458, 456, F.S., or any rules adopted pursuant thereto. (Section 458.331(1)(nn), F.S.)	(nn) From a reprimand, to revocation or denial and an administrative fine from $2,500.00 $1,000.00  to $10,000.00.	(nn) From probation, to revocation or denial and an administrative fine from $5,000.00 to $10,000.00.		(nn) From a reprimand to revocation or denial.	(nn) From suspension with a corrective action plan to revocation or denial.
2. through 3. No change.
(oo) through (rr) No change.
(ss) 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. (Section 456.072(1) (bb), F.S.)	(ss) From a $5,000.00 $1,000.00 fine, a letter of concern, a minimum of five (5) hours of risk management education, and one (1) hour lecture on wrong-site surgery in the State of Florida to a $10,000.00 fine, a letter of concern, a minimum of five (5) hours of risk management education, undergo a risk management assessment, a one (1) hour lecture on wrong-site surgery, and suspension to be followed by a term of probation or denial.	(ss) From a $10,000.00 fine, a reprimand, undergo a risk management assessment, and probation or denial to a $10,000.00 fine and revocation.	(ss) From a $10,000.00 fine, a reprimand, undergo a competency evaluation, and suspension to be followed by a term of probation or denial, to a $10,000.00 fine and revocation.	(ss) From a letter of concern to suspension with a corrective action plan or denial.	(ss) From a reprimand to revocation or denial.
(tt) 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. (Section 456.072(1)(cc), F.S.)	(tt) From a $5,000.00 $2,000.00 to a $10,000.00 fine, a letter of concern, a minimum of five (5) hours of risk management education, and a one hour lecture to the staff of a Florida licensed healthcare facility on retained foreign body objects to suspension to be followed by a term of probation.	(tt) From a $10,000.00 fine, a reprimand and probation, or denial to revocation.		(tt) From a letter of concern to  suspension with a corrective action plan.	(tt) From a suspension with a corrective action plan to revocation or denial.
(uu) No change.
(vv) Engaging in a pattern of practice when prescribing medicinal drugs or controlled substances which demonstrates a lack of reasonable skill or safety to patients. (Section 456.072(1)(gg), F.S.)	(vv) From one (1) year probation to revocation or denial and an administrative fine from $5,000.00 $1,000.00 to $10,000.00.	(vv) From suspension, to be followed by a period of probation, to revocation or denial and an administrative fine from $7,500.00 $5,000.00 to $10,000.00.		(vv) From one (1) month suspension with a corrective action plan, to revocation or denial.	(vv) From ninety (90) day suspension with a corrective action plan, to revocation or denial.
(ww) through  (ccc)  No change.
(ddd) Registration of pain clinic by a designated physician through misrepresentation or fraud. (Section 458.331(1)(pp), F.S.)
1. For registering a pain clinic through misrepresentation. (Section 458.331(1)(pp)1., F.S.)	1. From a letter of concern to probation, and a fine of $10,000.00 $1,000.00 to $5,000.00.	1. From a period of probation, to revocation, and a fine of $10,000.00. $5,000.00 to $10,000.00.		Not applicable to telehealth registrants.	Not applicable to telehealth registrants.
2. No change.
(eee) through (fff) No change.
(ggg) Being convicted of or found guilty of, regardless of adjudication to, a felony or any other crime involving moral turpitude, fraud, dishonesty, or deceit in any jurisdiction of the courts of this state, or any other state, or of the United States. (Section 458.331(1)(pp)4., F.S.)	(ggg) From probation to revocation, and an administrative fine ranging from $1,000.00 to $10,000.00. If the offense  includes an element of fraud or making a false or fraudulent representation the fine shall be $10,000.00.	(ggg) From suspension to revocation, and an administrative fine ranging from $5,000.00 to $10,000.00. If the offense  includes an element of fraud or making a false or fraudulent representation the fine shall be $10,000.00.		Not applicable to telehealth registrants.	Not applicable to telehealth registrants.
(hhh) No change.
(iii) Being convicted of, or entering a plea of guilty or nolo contendere to, regardless of adjudication, a crime which relates to the practice of, or the ability to practice, a licensed health care profession. (Section 458.331(1)(pp)6., F.S.)	(iii) From probation to revocation, and an administrative fine ranging from $5,000.00 to $10,000.00 $1,000.00 to $5,000.00.	(iii) From suspension to revocation, and an administrative fine ranging from $7,500.00 $5,000.00 to $10,000.00.		Not applicable to telehealth registrants.	Not applicable to telehealth registrants.
(jjj) No change.
(kkk) Dispensing any medicinal drug based upon a communication that purports to be a presciption as defined in Section 465.003(14) or 893.02, F.S., if the dispensing practitioner knows or has reason to believe that the purported prescription is not based upon a valid practitioner-patient relation ship. (Section 458.331(1)(pp)8., F.S.)	(kkk) From a reprimand to revocation, and an administrative fine ranging from $5,000.00 to $10,000.00 $1,000.00 to $5,000.00.	(kkk) From probation to revocation, and an administrative fine ranging from $7,500.00 $5,000.00 to $10,000.00.		Not applicable to telehealth registrants.	Not applicable to telehealth registrants.
(lll) through (bbbb) No change.
(cccc) Providing information indicating that a person has a disability or supporting a person’s need for an emotional support animal under s. 760.27, F.S. without personal knowledge of the person’s disability or disability-related need for the specific emotional support animal. (Section 456.072(1)(pp))	(cccc) From a letter of concern and a fine of $100.00 to a reprimand  and a fine of $1,000.00.	(cccc) From a reprimand and a fine of $2,500.00 to probation and a fine of $5,000.00.		(cccc) From a letter of concern to a reprimand.	(cccc) From a reprimand suspension with a corrective action plan.

(3) through (8) No change.

Rulemaking Authority 456.079, 456.47(7), 458.309, 458.331(5) FS. Law Implemented 381.986(3)(a), 456.47, 456.50(2), 456.0575, 456.072, 456.079, 458.331(5) FS. History–New 12-5-79, Formerly 21M-20.01, Amended 1-11-87, 6-20-90, Formerly 21M-20.001, Amended 11-4-93, Formerly 61F6-20.001, Amended 6-24-96, 12-22-96, Formerly 59R-8.001, Amended 5-14-98, 12-28-99, 1-31-01, 7-10-01, 6-4-02, 9-10-02, 12-11-02, 8-20-03, 6-7-04, 8-17-04, 1-4-06, 8-13-06, 8-29-06, 11-22-06, 1-30-07, 2-18-09, 12-22-09, 7-27-10, 6-21-11, 12-27-11, 4-22-12, 5-28-12, 1-1-15, 11-9-16, 4-30-18, 8-15-18, 8-28-18, 12-12-19, 3-2-20, 11-16-20,                               .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Rules/Legislative Committee, Board of Medicine

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Board of Medicine

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: December 3, 2020

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: : January 14, 2021