The proposed rule amendment will address clarifications to existing disciplinary violations and penalties.

 

DEPARTMENT OF HEALTH

Board of Osteopathic Medicine

RULE NO.:RULE TITLE:

64B15-19.002Violations and Penalties

PURPOSE AND EFFECT: The proposed rule amendment will address clarifications to existing disciplinary violations and penalties.

SUMMARY: Clarification of existing disciplinary violations and penalties.

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: 456.47(7), 456.079, 459.015(5), 459.0138 FS.

LAW IMPLEMENTED: 381.986(3)(a), 456.072, 456.079, 456.47, 456.50, 459.015, 459.0138 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: Kama Monroe, Executive Director, Board of Osteopathic Medicine/MQA, 4052 Bald Cypress Way, Bin #C06, Tallahassee, Florida 32399-3256, or by email at [e-mail].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

64B15-19.002 Violations and Penalties.

In imposing discipline upon applicants and licensees, 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 statutory language is intended to provide a description of the violation and is not a complete statement of the violation; the complete statement may be found in the statutory provision cited directly under each violation description. In addition to any guideline penalties provided herein, if the violation is for fraud or making a false or fraudulent representation, the Board shall impose a fine of $10,000.00  per count or offense.  In no event shall a fine for any of the penalties set forth below exceed $10,000.00 per count.

Violation	Minimum	Maximum
(1) Attempting to obtain, obtaining or renewing a license or certificate by bribery, fraud or through an error of the Department or board. (Sections 456.072(1)(h) and 459.015(1)(a), F.S.)
(a)   No change.
FOR TELEHEALTH REGISTRANTS:	No change.
(b) Attempting to renew a license by bribery or fraud.
FIRST OFFENSE:	Revocation of the license and a $5,000.00 fine; if fraud involved, revocation of license and a fine of $10,000.00.	Revocation of the license and a $10,000.00 fine.
SECOND OFFENSE:	No change.
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE:	No change.
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE:	No change.
(c) Obtaining or renewing a license by bribery or fraud.
FIRST OFFENSE:	Revocation of the license and a $5,000.00 fine; if fraud involved, revocation of license and a fine of $10,000.00.	Revocation of the license and a $10,000.00 fine.
SECOND OFFENSE:	No change.
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE:	No change.
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE:	No change.
(d) No change.
(2)  through (14)  No change.
(15) Deceptive, untrue, or fraudulent misrepresentations in the practice of medicine. (Sections 456.072(1)(a), (m) and 459.015(1)(m), F.S.)
FIRST OFFENSE:	Probation and a $1,000.00 fine; if fraud involved, revocation of license and a fine of $10,000.	Denial of licensure or revocation and $10,000.00 fine.
SECOND OFFENSE:	No change.
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE:	No change.
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE:	No change.
(16) through (17)  No change.
(18) Fraudulent, alteration or destruction of patient records. (Section 459.015(1)(p), F.S.)
FIRST OFFENSE:	Probation and $5,000.00 fine; if fraud involved, probation and a $10,000.00 fine.	Suspension to be followed by probation and $7,500.00 fine; if fraud involved, suspension to be followed by probation and a $10,000.00 fine.
SECOND OFFENSE:	Suspension to be followed by probation and $7,500.00 fine; if fraud involved, probation and a $10,000.00 fine.	Revocation and $10,000.00 fine.
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE:	No change.
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE:	No change.
(19) through (26)  No change.
(27)  Repeated Malpractice as defined in Section 456.50, F.S. (Section 459.015(1)(x), F.S.)
FIRST OFFENSE:	Revocation or denial of license and fine of $5,000.00 $1,000.00.	Revocation or denial of license and fine of $10,000.00.
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE:	No change.
(28) 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 456.47(2)(a), 456.50(1)(g) and 459.015(1)(x), F.S.)
FIRST OFFENSE:	Letter of concern, up to one (1) year probation and $5,000.00 $1,000.00 fine.	Denial or revocation and $10,000.00 fine.
SECOND OFFENSE:	No change.
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE:	No change.
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE:	No change.
(29) through (39)  No change.
(40) Misrepresenting, concealing a material fact during licensing, or disciplinary procedure. (Section 459.015(1)(jj), F.S.)
FIRST OFFENSE:	Denial or probation and $5,000.00 fine; if fraud involved, denial or probation and a $10,000.00 fine.	Denial and a $7,500 fine or revocation; if fraud involved, denial or revocation, and a $10,000.00 fine.
SECOND OFFENSE:	No change.
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE:	No change.
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE:	No change.
(41) through (58)  No change.
(59) Engaging in a pattern of practice when prescribing medicinal drugs or controlled substances which demonstrates a lack of reasonable skill or safety to patients, a violation of any provision of chapter 456, or sections 893.055 and 893.0551, F.S., a violation of the applicable practice act, or a violation of any rules adopted under this chapter or the applicable practice act of the prescribing practitioner. (Section 456.072(1)(gg), F.S.)
FIRST OFFENSE:	One year probation and $5,000.00 $1,000.00 fine.	Revocation and $10,000.00 fine or denial of licensure.
SECOND OFFENSE:	No change.
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE:	No change.
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE:	No change.
(60) through (65)  No change.
(66) Registration of pain clinic by a designated physician through misrepresentation or fraud. (Section 459.015(1)(rr)1., F.S.)
(a) For registering a pain clinic through misrepresentation.
FIRST OFFENSE:	Letter of concern and a $10,000.00 $1,000.00 fine.	Probation and a $10,000.00 $5,000.00 fine.
SECOND OFFENSE:	Probation and a $10,000.00 $5,000.00 fine.	Revocation and a $10,000.00 fine.
FOR TELEHEALTH REGISTRANTS	No change.
(b) No change.
(67) No change.
(68) Failing to comply with any requirement of chapter 499, F.S., the Florida Drug and Cosmetic Act; 21 U.S.C., ss. 301-392, the Federal Food, Drug, and Cosmetic Act; 21 U.S.C. ss. 821 et seq., the Drug Abuse Prevention Control Act; or chapter 893, F.S., the Florida Comprehensive Drug Abuse Prevention and Control Act. (Section 459.015(1)(rr)3., F.S.)
FIRST OFFENSE:	No change.
SECOND OFFENSE:	No change.
THIRD OFFENSE:	No change.
FOR TELEHEALTH REGISTRANTS	Not applicable to teleheath registrants.	plan.
(69) 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 459.015(1)(rr)4., F.S.)
FIRST OFFENSE:	Probation and a $1,000.00 fine; if fraud involved, probation and a $10,000.00 fine.	Revocation and a $10,000.00 fine or denial of licensure.
SECOND OFFENSE:	Suspension and a $5,000.00 fine; if fraud involved, suspension followed by a period of probation and a $10,000.00 fine.	Revocation and a $10,000.00 fine or denial of licensure.
FOR TELEHEALTH REGISTRANTS	No change.
(70)   No change
(71) 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 459.015(1)(rr)6., F.S.)
FIRST OFFENSE:	Probation and a $5,000.00 $1,000.00 fine	Revocation and a $10,000.00 fine or denial of licensure.
SECOND OFFENSE:	No change.
FOR TELEHEALTH REGISTRANTS	No change.
(72) Being convicted of, or entering a plea of guilty or nolo contendere to, regardless of adjudication, a crime which relates to health care fraud. (Section 459.015(1)(rr)7., F.S.)
(a) No change.
FIRST OFFENSE:	No change.
(b) Being convicted of, or entering a plea of guilty or nolo contendere to, regardless of adjudication, a crime relating to healthcare fraud in dollar amounts of $5,000.00 or less.
FIRST OFFENSE:	Suspension, followed by a period of probation, and a $10,000.00 fine.	Revocation or denial of licensure, and a fine of $10,000.00.
SECOND OFFENSE:	No change.
FOR TELEHEALTH REGISTRANTS	No change.
(73) 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 relationship. (Section 459.015(1)(rr)8., F.S.)
FIRST OFFENSE:	Reprimand and a $5,000.00 $1,000.00 fine.	Revocation and a $10,000.00 fine or denial of licensure.
SECOND OFFENSE:	No change.
FOR TELEHEALTH REGISTRANTS	No change.
(74) through (77)  No change.
(78) Providing false or deceptive expert witness testimony related to the practice of medicine. (Section 459.015(1)(qq), F.S.)
FIRST OFFENSE:	Reprimand and an administrative fine of $5,000.00; if false representation, a reprimand and a $10,000.00 fine.	Revocation and an administrative fine of $10,000.00 or denial of licensure.
SECOND OFFENSE:	Suspension and an administrative fine of $7,500.00; if false representation, suspension  and a $10,000.00 fine.	Revocation and an administrative fine of $10,000.00 or denial of licensure.
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE:	No change.
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE:	No chagne.
(79)   No change.
(80) Dispensing a controlled substance listed in Schedule II or Schedule III in violation of section 465.0276, F.S. (Section 459.015)(1)(uu), F.S.)
FIRST OFFENSE:	Probation and an administrative fine of $5,000.00 $1,000.00.	Revocation and an administrative fine of $10,000.00 or denial of licensure.
SECOND OFFENSE:	No change.
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE:	No change.
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE:	No change.
(81) Willfully failing to comply with section 627.64194 or 641.513, F.S. with such frequency as to indicate a general business practice. (Section 459.015(1)(vv), F.S.)
FIRST OFFENSE:	Letter of concern and an administrative fine of $1,000.00.	Reprimand and an administrative fine in the amount of $1,000.00 to of $5,000.00.
SECOND OFFENSE:	Reprimand and an administrative fine of $5,000.00.	Revocation and an administrative fine in the amount of $5,000.00 to of $10,000.00.
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE:	No change.
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE:	No change.
(82) through (93)  No change.

Rulemaking Authority 456.079, 456.47(7), 459.015(5), 459.0138 FS. Law Implemented 381.986(3)(a), 456.072, 456.079, 456.47, 456.50, 459.015, 459.0138 FS. History–New 9-30-87, Amended 10-28-91, 1-12-93, Formerly 21R-19.002, 61F9-19.002, 59W-19.002, Amended 2-2-98, 2-11-01, 6-7-01, 2-26-02, 12-7-05, 11-14-06, 11-27-06, 5-10-10, 7-27-10, 11-10-11, 3-27-12, 7-3-12, 1-1-15, 11-27-16, 4-30-18, 8-9-18, 11-19-19, 2-12-20, 11-24-20,                              .             

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Board of Osteopathic Medicine

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

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: November 20, 2020

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: January 20, 2021