To update the rule.

 

DEPARTMENT OF HEALTH
Council of Medical Physicists

RULE NO: RULE TITLE
64B23-6.001: Penalties
PURPOSE AND EFFECT: To update the rule.
SUMMARY: Disciplinary penalty guidelines are provided for all violations of the practice act and violations of the applicable portions of Section 456.072, Florida Statutes.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
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(1), 483.901(6)(a) FS.
LAW IMPLEMENTED: 456.072, 456.079, 483.901(6)(a) 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: Joe Baker, Executive Director, MQA, 4052 Bald Cypress Way, Bin #C06, Tallahassee, Florida 32399-3250

THE FULL TEXT OF THE PROPOSED RULE IS:

64B23-6.001 Penalty Guidelines Penalties.

(1) Unless mitigating or aggravating factors are demonstrated when the Department finds an applicant or licensee whom it regulates under Chapter 483, Part IV, F.S., has committed any of the acts set forth in Section 483.901(6), F.S., it shall issue a final order imposing appropriate penalties based upon the severity and repetition of the offense within the ranges recommended in the following disciplinary guidelines:

(a) Practicing or attempting to practice medical physics with a license fraudulently obtained. In the case of an applicant, the Department shall deny the application. In the case of a licensee who has obtained or attempted to obtain a license by fraud, the Department shall impose a reprimand to revocation and a fine of $250 to $1,000, depending on the severity of the fraud. In the case of a licensee who has practiced or attempted to practice, the Department shall impose a reprimand with or without a period of suspension and fine of $500 to $1,000.

(b) Using or attempting to use a license to practice medical physics that has been suspended. The Department shall impose a penalty of revocation.

(c) Selling or fraudulently obtaining or furnishing any diploma, license, or record of registration or aiding or abetting in the same. The Department in the case of a licensee shall impose a penalty ranging from suspension to revocation and a fine of $500 to $1,000. In the case of an applicant, the Department shall deny the application.

(d) Making any willfully false oath or affirmation whenever an oath of affirmation is required by Chapter 483, Part IV, F.S. The Department in the case of a licensee shall impose a penalty ranging from probation to suspension and a fine of $500 to $1,000. In the case of an applicant, the Department shall deny the application.

(e) Using any name, title, or phrase which would lead the public to believe that such person is engaging in the practice of medical physics, unless such person is licensed as a medical physicist in this State. The Department in the case of a licensee shall impose a penalty ranging from a reprimand to probation, and a fine from $500 to $1,000. In the case of an applicant, the Department shall deny the application.

(f) Knowingly concealing information relative to a violation of Chapter 483, Part IV, F.S. The Department in the case of a licensee shall impose a penalty ranging from a reprimand to probation, and an administrative fine from $250 to $1,000. In the case of an applicant, the Department shall deny the application.

(1)(2) Unless mitigating or aggravating factors are present, demonstrated when the Department finds an applicant or licensee whom it regulates under Chapter 483, Part IV, F.S., has committed any of the acts set forth in Section 483.901(6), F.S., it shall issue a final order imposing appropriate penalties based on the severity and repetition of the violation offense within the ranges recommended in the following disciplinary guidelines.: The identification of violations is descriptive only; the full language of each statutory provision cited must be considered in order to determine the conduct included. For all persons subject to this rule, conditions of probation may be required following any period of suspension of the license. All listed violations provide sufficient grounds for denying a licensure application. A finding of financial benefit or self-gain related to the violation is grounds for requiring the subject to refund fees billed and collected from a patient or third party in addition to any other appropriate penalties. In addition to any other discipline imposed, the Department shall assess the actual costs related to the investigation and prosecution of a case. In addition to or in lieu of the penalties provided herein, if the violation is for fraud or making a false or fraudulent representation, the Department shall impose a fine of $10,000 per count or offense.

(a) Section 483.901(6)(g)1. or 456.072(1)(h), F.S.: Attempting to obtain, obtaining or renewing a license to practice medical physics by bribery, by fraudulent misrepresentation, or through an error of the Department.

Bribery – from a minimum fine of $500 and/or up to two years of probation to a maximum of revocation. For a second or subsequent violation, revocation and a maximum fine of $10,000.

Fraudulent misrepresentation – from six months probation and a fine of $10,000 to a maximum of revocation and a fine of $10,000. For a second or subsequent violation, revocation and a fine of $10,000.

Department error – from a letter of concern and/or a fine of $500, up to a maximum of suspension of license for one year, followed by two years of probation, and a fine of $5,000. For a second or subsequent violation, from a minimum fine of $5,000 to revocation. In the case of an applicant, the Department shall deny the application. In the case of a licensee, the Department shall revoke the license.

(b) Section 483.901(6)(g)2. or 456.072(1)(f), F.S.: Having a license to practice medical physics revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of another state, territory, or country – action consistent with the penalty guidelines for the violation had the violation occurred in the State of Florida. For a second or subsequent violation, action consistent with the penalty guidelines for a repeat violation had it occurred in Florida. In the case of a licensee, the Department shall impose a penalty ranging from reprimand to probation and a fine from $500 to $1,000. In the case of an applicant, the Department shall deny the application.

(c) Section 483.901(6)(g)3. or 456.072(1)(c), F.S.: Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which is directly related to the practice of medical physics or the ability to practice medical physics – from a minimum fine of $1,500 and six months probation to a maximum fine of $5,000 and/or revocation. For a second or subsequent violation, from a minimum of one year of probation up to a maximum fine of $10,000 and/or revocation of license. In the case of a licensee, the Department shall impose a penalty ranging from probation to revocation and a fine from $500 to $1,000, depending upon the nature of the offense and the substantiating evidence. In the case of an applicant, the Department shall deny the application.

(d) Section 483.901(6)(g)4. or 456.072(1)(g) or 456.072(1)(l), F.S.: Willful filing of a false report or impeding and/or inducing another to file a false report – from a minimum fine of $3,000 and/or suspension of license for three months followed by six months probation up to a maximum of revocation and/or a fine of $7,500. For a second or subsequent violation, up to a maximum fine of $10,000 and/or revocation.

(e)(d) Section 483.901(6)(g)5. or 456.072(1)(a), F.S.: Advertising or otherwise making representations in a manner which is false, deceptive or misleading – from a minimum fine of $1,000 and a reprimand up to a maximum fine of $7,500 and one year of probation. For a second violation, from a minimum fine of $2,500 and/or one year of probation to a maximum fine of $10,000 and/or six months suspension of license. For a third violation, a fine of up to $10,000 and/or one year of suspension followed by two years probation up to a maximum fine of $10,000 and/or revocation. The Department shall impose a penalty ranging from reprimand to probation and a fine from $250 to $1,000.

(e) Advertising, practicing or attempting to practice under a name other than one’s own. The Department shall impose a penalty ranging from reprimand to probation and a fine from $250 to $1,000.

(f) Section 483.901(6)(g)6. or 456.072(1)(i), F.S.: Failing to report to the Department any person the licensee knows to be in violation of Chapter 456 or 483, Part IV, F.S., or the rules of the Department – from a minimum letter of concern and/or a fine of $500 up to a maximum fine of $1,000 and/or six months of probation. For a second or subsequent violation, a minimum of six months of probation and/or a fine of $2,000 to a maximum fine of $7,500 and/or revocation. The Department shall impose a penalty of a reprimand and a fine of $250.

(g) Section 483.901(6)(g)7. or 456.072(1)(k), F.S.: Failing to perform any statutory or legal obligation placed upon a licensee – from a minimum fine of $500 and a letter of concern up to a maximum fine of $7,500 and/or two years of suspension followed by two years of probation. For a second violation, from a minimum fine of $2,500 and six months of probation up to a maximum fine of $10,000 and/or revocation. For a third or subsequent violation, up to a fine of $10,000 and/or revocation.

(h)(g) Section 483.901(6)(g)8. or 456.072(1)(j), F.S.: Aiding, assisting, procuring, permitting or advising any unlicensed person to practice medical physics contrary to Chapter 483, Part IV, F.S., or the rules of the Department – from a minimum $3,500 fine and/or one year of suspension followed by probation to a fine of $7,500 and/or revocation of license. For a second or subsequent violation, from a fine of $5,000 up to a maximum fine of $10,000 and/or revocation. The Department shall impose a penalty of probation to suspension and a fine from $500 to $1,000. In the case of an applicant, the Department shall deny the application.

(h) Failing to perform any statutory or legal obligation placed upon a licensed medical physicist. The Department shall impose a penalty ranging from reprimand to probation and a fine from $250 to $1,000.

(i) Section 483.901(6)(g)9. or 456.072(1)(p), F.S.: Delegating professional responsibilities to a person when the delegating licensee knows or has reason to know that such person is not qualified by training, experience or licensure to perform them – from a minimum fine of $1,500 and/or six months of probation up to a maximum fine of $5,000 and suspension of license for two years followed by up to three years of probation. For a second or subsequent violation, from a minimum fine of $3,000 and/or suspension of license for six months followed by one year of probation up to a maximum fine of $10,000 and/or revocation. Making or filing a report or record 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 impede or obstruct such filing. Such reports or records shall include only those which are signed in the capacity of a licensed medical physicist. The Department shall impose a penalty ranging from reprimand to probation and a fine from $250 to $1,000.

(j) Section 483.901(6)(g)10. or 456.072(1)(o), F.S.: Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee has reason to know that the licensee is not competent to perform – from a minimum fine of $1,000 and/or one year of probation up to a maximum fine of $5,000 and/or two years of probation. For a second or subsequent violation, from a minimum fine of $2,500 and two years of probation up to a maximum fine of $8,000 and/or revocation. Paying or receiving any commission, bonus, kickback, rebate or engaging in any split-fee arrangement in any form whatsoever with a physician, organization, Department or person, either directly or indirectly, for patients referred to providers of health care goods and services, including, but not limited to hospitals, nursing homes, clinical laboratories, ambulatory surgical centers or pharmacies. The Department shall impose a penalty ranging from reprimand to probation and a fine from $500 to $1,000.

(k) Section 483.901(6)(g)11. F.S.: Gross or repeated malpractice or the failure to practice medical physics at a level of care, skill, and treatment which is recognized by a reasonably prudent medical physicist as being acceptable under similar conditions and circumstances – from a minimum fine of $1,000 up to a maximum fine of $10,000 and/or revocation. For a second or subsequent violation, from a minimum fine of $5,000 up to a maximum fine of $10,000 and or revocation.

(l) Section 483.901(6)(g)12. F.S.: Judicially determined mental incompetency – from a minimum of voluntary relinquishment of license pending a judicial determination or suspension until a judicial determination that competency to practice has been restored to revocation.

(m) Section 483.901(6)(g)13. or 456.072(1)(z), F.S.: Practicing medical physics without reasonable skill and safety by reason of illness, or use of alcohol, drugs, narcotic, chemicals or any other type of material or as a result of any mental or physical condition – from a minimum of a referral to a Department approved impaired practitioner program or the Professionals Resource Network (PRN) for evaluation and/or treatment and two years of probation to a maximum of suspension of license until determined safe to practice followed by up to five years of probation. For a second or subsequent violation, from a $750 fine, referral to PRN, and a minimum of two years probation to revocation.

(n) Section 483.901(6)(g)14. or 456.072(1)(b) or 456.072(1)(dd), F.S.: Violating any provision of chapter 483, Part IV, F.S. or chapter 456, or any rules adopted pursuant thereto – from a minimum fine of $1,000 and/or a reprimand up to a maximum fine of $5,000 and/or suspension of license for two years followed by two years of probation. For a second violation, from a minimum fine of $5,000 and/or two years of probation up to a maximum fine of $10,000 and/or revocation. For a third or subsequent violation, from a minimum fine of $7,500 and/or six months of suspension followed by two years of probation up to a maximum fine of $10,000 and/or revocation.

(o)(k) Section 456.072(1)(m), F.S.: Making misleading, deceptive, untrue or fraudulent representations in the practice of medical physics or employing a trick or scheme in the practice of medical physics when such scheme or trick fails to conform to the generally prevailing standards of treatment in the community – from a minimum six months of probation to a maximum suspension of license for one year followed by two years of probation and a $10,000 fine per count or violation. For a second or subsequent violation, from a minimum of two years of probation to revocation and a fine of $10,000 per count or violation. The Department shall impose a penalty ranging from probation to suspension and a fine from $500 to $1,000.

(l) Soliciting patients either personally or through an agent. The Department shall impose a penalty ranging from reprimand to probation and a fine of $500.

(m) Failing to prepare written or electronic records detailing the content of the professional service(s) provided. The Department shall impose a penalty ranging from reprimand to probation and a fine from $250 to $1,000.

(p)(n) Section 456.072(1)(n), F.S.: Exercising influence on the patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party – from a minimum fine of $1,000 and/or one year of probation to a maximum fine of $10,000 and/or revocation.  For a second or subsequent violation, from a minimum two years probation and a fine of $2,500 to a fine of $10,000 and/or revocation. The Department shall impose a penalty ranging from probation to suspension and a fine from $500 to $1,000.

(o) Performing professional services when knowing such services have not been duly authorized by the patient or client or his legal representative. The Department shall impose a penalty ranging from reprimand to probation and a fine from $250 to $500.

(p) Practicing medical physics without reasonable skill and safety by reason of illness, or use of alcohol, drugs, narcotic, chemicals or any other type of material or as a result of any mental or physical condition. The Department shall impose a penalty of suspension until such time as the licensee demonstrates rehabilitation followed by probation under such terms and conditions as set by the Department and a fine from $250 to $500. If the individual is an applicant, the Department shall deny the application.

(q) Section 456.072(1)(q), F.S.: Violating a lawfully issued order or subpoena – from a minimum fine of $1,000 and a letter of concern to a maximum fine of $8,000 and suspension of license for up to two years followed by two years of probation. For a second or subsequent violation, from a minimum fine of $2,000 and/or two years of probation to a fine of $10,000 and revocation. Gross or repeated malpractice or the failure to practice medical physics at a level of care, skill, and treatment which is recognized by a reasonably prudent medical physicist as being acceptable under similar conditions and circumstances. The Department shall impose a penalty ranging from probation to revocation and a fine from $250 to $1,000, depending on the severity of the offense.

(r) Section 456.072(1)(r), F.S.: Interfering with an investigation, inspection, or disciplinary proceeding – from a minimum fine of $800 and/or one year of probation to a maximum fine of $10,000 and/or revocation. For a second or subsequent violation, a minimum fine of $2,500 and two years probation to a maximum fine of $10,000 and/or revocation. Performing any procedure which, by prevailing standards of medical physics practice in the community, would constitute experimentation on human subjects without first obtaining full, informed, and written consent. The Department shall impose a penalty ranging from probation to suspension and a fine from $500 to $1,000.

(s) Section 456.072(1)(e), F.S.: Failing to comply with the educational course requirements of HIV/AIDS – from providing proof of compliance and a minimum fine of $500 and a letter of concern to a maximum fine of $1,500 and up to three years of probation. For a second or subsequent violation, from a minimum fine of $1,000 to a maximum fine of $5,000 and up to three months of suspension followed by two years of probation. 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 is not competent to perform. The Department shall impose a penalty ranging from an administrative fine of $1,000 and one year of probation, up to a maximum of revocation or denial of the license.

(t) Section 456.072(1)(t), F.S.: Failing to identify to a patient not in certain facilities that the practitioner is licensed as a medical physicist – from a letter of apology and/or a minimum fine of $250 to a maximum fine of $500 and/or six months probation. For a second or subsequent violation, from a fine of $500 and a reprimand to a fine of $1,000 and/or up to one year probation. Delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified by training, experience or licensure to perform them. The Department shall impose a penalty ranging from reprimand to probation and a fine from $250 to $1,000.

(u) Section 456.072(1)(v), F.S.: Engaging or attempting to engage in sexual misconduct – from a reprimand and/or fine of $1,000 to a maximum fine of $10,000 and referral for evaluation and assistance and/or revocation. For a second or subsequent violation, from a fine of $5,000, referral for evaluation and/or six months suspension followed by one year of probation to a fine of $10,000 and revocation. Conspiring with another licensee or with any other person to commit an act, or committing an act, which would tend to coerce, intimidate or preclude another licensee from lawfully advertising his services. The Department shall impose a penalty of reprimand to probation and a fine from $250 to $500.

(v) Section 456.072(1)(x), F.S.: Failing to report a conviction or plea, regardless of adjudication, within 30 days – from a minimum letter of concern and/or fine of $250 to a maximum fine of $3,000 and/or up to two years of probation. For a second or subsequent violation, a reprimand and fine of $500 up to a maximum fine of $5,000 and three months suspension followed by two years probation. Fraud, deceit, or misconduct in the practice of medical physics. The Department shall impose a penalty ranging from probation to revocation and a fine from $500 to $1,000.

(w) Section 456.072(1)(aa), F.S.: Testing positive for any drug on any preemployment or employer-ordered drug screening – from a minimum of a referral to a Department approved impaired practitioner program or PRN for evaluation and treatment and two years of probation to a maximum of suspension of license until determined safe to practice followed by up to five years of probation. For a second or subsequent violation, from a $750 fine, referral to PRN, and a minimum of two years probation to revocation. Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities the licensee knows, or has reason to know, the licensee is not competent to perform. The Department shall impose a penalty ranging from probation to revocation and a fine from $250 to $500.

(x) Section 456.072(1)(bb), F.S.: Performing or preparing for or attempting services on the wrong patient, wrong site, wrong procedure, or an unauthorized procedure or one that is medically unnecessary or unrelated to patient’s condition –  from a minimum fine of $1,000 and a reprimand to a maximum fine of $9,000 and/or three months suspension followed by two years probation.  For a second or subsequent violation, from a minimum fine of $5,000 and a year of probation to a fine of $10,000 and/or revocation. Delegating or contracting for the performance of professional responsibilities by a person when the licensee delegating or contracting to performance of such responsibilities knows, or has reason to know, such person is not qualified by training, experience, and authorization when required to perform them. The Department shall impose a penalty of probation to revocation and a fine from $500 to $1000.

(y) Section 456.072(1)(ee) or 456.072(1)(ff), F.S.:  Intentionally submitting an “upcoded” bill or claim or a bill or claim for payment of services not rendered – from reimbursement and a fine of $1,000 and/or a year of probation to a maximum fine of $10,000 and/or revocation.  For a second or subsequent offense, a fine of $2,000 and a year of probation to a maximum fine of $10,000 and/or revocation. Improperly interfering with an investigation or inspection authorized by statute, or with any disciplinary proceeding. The Department shall impose a penalty of reprimand to suspension and a fine from $250 to $500.

(z) Section 456.072(1)(hh), F.S.: Being terminated from a treatment program for impaired practitioners without good cause-  from suspension of license until determined safe to practice and/or reinstatement in the program to revocation.  The same penalty would apply for a second or subsequent violation.

(2) Any or all of the following conditions may be imposed as terms of probation:

(a) Restitution of the costs of probation.

(b) Restitution to patient(s) or third party payor(s).

(c) Affidavit of understanding laws and rules.

(d) Department access to all business records.

(e) Continuing education classes beyond those required for biennial renewal.

(f) Attendance or participation in specific training and/or classes.

(g) Direct or indirect supervision by a Department-approved monitor.

(h) Restitutions on practice.

(i) Submission of reports by licensee, monitor, and or supervisor or employer at a frequency determined by the Department.

(j) Community service.

(k) Urine, blood, and hair testing.

(l) Other appropriate conditions related to the committed violation.

Specific Authority 456.079(1), 483.901(6)(a) FS. Law Implemented 456.072, 456.079, 483.901(6)(a) FS. History–New 7-15-99, Amended________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Joe Baker
NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: Lucy Gee
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: February 2, 2007
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: January 26, 2007