The Board proposes the rule amendments to clarify language, to update existing penalties, and to set forth additional violations and appropriate penalties.

DEPARTMENT OF HEALTH

Board of Massage Therapy

RULE NO.:RULE TITLE:

64B7-30.002Disciplinary Guidelines

PURPOSE AND EFFECT: The Board proposes the rule amendments to clarify language, to update existing penalties, and to set forth additional violations and appropriate penalties.

Summary: The proposed rule amendments are necessary to clarify language, to update existing penalties, and to set forth additional violations and appropriate penalties in regard to disciplinary guidelines.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS:

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, based upon the expertise and experience of its members, 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: 456.072(2), 456.073(4), 456.079(1), (3), (4), 480.035(7) FS.

LAW IMPLEMENTED: 456.072(2), 456.073(4), 456.079(1), (3), (4), 480.046, 480.047 FS.

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

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT IS: Anthony Jusevitch, Executive Director, Board of Acupuncture/MQA, 4052 Bald Cypress Way, Bin #C06, Tallahassee, Florida 32399-3256

 

THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:

 

(Substantial rewording of Rule 64B7-30.002 follows. See Florida Administrative Code for present text)

64B7-30.002 Disciplinary Guidelines.

(1) When the Board finds that an applicant, apprentice, or licensee whom it regulates under Chapter 480, F.S., has committed any of the acts set forth in Sections 480.0485, 480.046, 480.047 and 456.072, F.S., and/or 64B7 F.A.C., it shall issue a final order imposing appropriate penalties within the ranges recommended in the following disciplinary guidelines after consideration of the aggravating and mitigating factors set forth in subsection (4) of this rule. Discipline may include any of the following:  letter of concern, reprimand, license with conditions, probation, suspension, revocation and/or fines.

(2)If the offense is for fraud or making a false or fraudulent representation, the recommended penalties are:

(a) Licensee:

1. First offense:  $10,000 fine;

2. Second offense:  $10,000 fine and suspension;

3. Subsequent offense:  $10,000 fine and revocation.

(b) Applicant:

1. First offense:  $10,000 fine and a denial of licensure;

2. Subsequent offense:  $10,000 fine, denial of licensure, and prohibition on reapplication for 2 to 5 yrs.

(c) Massage Establishment:

1. $10,000, revocation of the license, and prohibition of reapplication by the holder of the license for a period of 2 yrs.

2. In addition, if owned by a Licensed Massage Therapist:

a. First offense:  $10,000 fine and suspension of owner’s massage therapy license.

b. Subsequent offense:  $10,000 fine and revocation of the owner’s massage therapy license.

(3) Disciplinary Guidelines

 

PENALTY RANGE
VIOLATION	FIRST OFFENSE	SECOND OFFENSE	THIRD OFFENSE
(a) 480.046(1)(a) or 456.072(1)(h) Bribery       Fraudulent misrepresentation     Licensed through error of Department or Board	$1000 fine and suspension or denial of licensure       $10,000 fine       Revocation	Revocation           $10,000 fine and suspension	$10,000 fine and revocation
(b) 480.046(1)(b) or 456.072(1)(f)	Discipline consistent with penalty or actions imposed in other jurisdiction or denial of licensure
(c) 480.046(1)(c) or 456.072(1)(c) Misdemeanors     Felonies     Crimes relating to assault, battery, abuse or which otherwise cause bodily harm, prostitution or solicitation for prostitution   Crimes relating to fraud	$250 fine         $500 fine and probation     $1,000 fine and revocation             $10,000 fine	$500 fine and probation         $500 fine and suspension                   $10,000 fine and suspension	$500 fine and suspension       $1,000 fine and suspension                   $10,000 fine and revocation
(d) 480.046(1)(d)	$500 fine and reprimand	$750 fine and probation	$1,000 fine and suspension
(e) 480.046(1)(e) or 456.072(1)(j)	$1,000 fine and suspension	$1,000 fine and suspension for a minimum of 2 years	Revocation
(f) 480.046(1)(f) or 456.072(1)(a) or (m)   Fraudulent misrepresentations	$1,000 fine and reprimand   $10,000 fine	$1,000 fine and probation   $10,000 fine and suspension	Revocation     $10,000 fine and revocation
(g) 480.046(1)(g) or 456.072(1)(z)	Suspension until PRN evaluation and contract if recommended, suspension stayed while compliant	Suspension until compliant	Revocation
(h) 480.046(1)(h)	$1,000 fine and probation	$1,000 fine and suspension	Revocation
(i) 480.046(1)(i) or 456.072(1)(o)	$1,000 fine and probation	$1,000 fine and suspension	Revocation
(j) 480.046(1)(j) or 456.072(1)(p)	$500 fine and probation	$1,000 fine and suspension	Revocation
(k)  480.046(1)(k) or 456.072(1)(q)	Suspension until compliant	Revocation
(l) 480.046(1)(l)	$500 fine and suspension	$1,000 fine and suspension	Revocation
(m) 480.046(1)(m)	$250 fine and reprimand	$1,000 fine and suspension	Revocation
(n) 480.046(1)(n) 1. Establishment license delinquent     2. Establishment license suspended – site owned by massage therapist	$100 fine for the first month and $50 for each succeeding month or part thereof and reprimand Suspension of owner’s massage therapy license	Revocation of licensed owner’s massage therapy license
(o) 480.046(1)(o) or 456.072(1)(b) or (dd)         1.480.0465   2. 480.0485     3. 456.036(1) Delinquent license           4. 456.036(1) Suspended or inactive license   5. 480.047(1)(b) Violator’s license Delinquent       6. 480.047(1)(b) Violator’s license Suspended or inactive   7. 480.047(1)(c)         8. 480.047(1)(d) Licensee     Applicant         9. 480.047(1)(e)     10. 480.047(1)(f) Licensee   Applicant           11. 480.047(1)(g) Licensee     Applicant         12. Failure to respond to continuing education audit   13. Any violation of rule 64B7-26.010, F.A.C.	Unless an offense is specifically set forth in this subsection $250 fine     Reprimand, $500 fine   $2,500 fine and revocation     $100 fine for first month and $50 for each succeeding first month or part thereof and reprimand   Revocation       $100 fine for first month and $50 for each succeeding month or part thereof and reprimand   Revocation       $1,000 fine and suspension       $1,000 fine       Denial of licensure         Revocation     $1,000 fine and probation   Denial of licensure           $1,000 fine and probation     Denial of licensure         $500 fine and suspension     $2,500 fine and revocation	$250 fine and probation           Revocation                                                   $1,000 fine and suspension for minimum of 2 years     Revocation       Denial of licensure and prohibition on reapplication for 2-5 years         $1,000 fine and suspension   Denial of licensure and prohibition on reapplication for 2-5 years     $1,000 fine and revocation     Denial of licensure and prohibition on reapplication for 2-5 years   $500 fine and revocation	Revocation                                 Revocation
(p) 456.072(1)(e)	Letter of Concern	Reprimand and $250
(q) 456.072(1)(g)	$500 fine and suspension	$1,000 fine and revocation
(r) 456.072(1)(i)	$500 fine and reprimand	$1,000 fine and suspension
(s) 456.072(1)(k)	$250 fine	$500 fine	$1,000 fine
(t) 456.072(1)(l)	$500 fine and probation	$2,000 fine and revocation
(u) 456.072(1)(n)	$500 fine and probation	$1,000 fine and revocation
(v) 456.072(1)(r)	$500 fine and probation	$1,000 fine and revocation
(w) 456.072(1)(t)	Letter of concern	Reprimand and $250 fine
(x) 456.072(1)(v)	$2,500 fine and revocation
(y) 456.072(1)(x)	Reprimand, $250 fine and continuing education	Reprimand, $500 fine and continuing education	Revocation
(z) 456.072(1)(y)	$500 fine and probation	$500 fine and suspension	$500 fine and revocation
(aa) 456.072(1)(aa)	Suspension until PRN evaluation, contract if recommended under stayed suspension	Suspension until appearance to demonstrate safety to practice with PRN facilitated evaluation	Revocation
(bb)  456.072(1)(bb)	Reprimand and $500 fine	$1,000 fine to revocation
(cc)  456.072(1)(cc)	Reprimand and $1,000 fine	Revocation
(dd)  456.072(1)(ff)	Reprimand and $1,000 fine	Revocation
(ee)  456.072(1)(hh)	Suspension until compliant up to suspension until compliant with program followed by up to five (5) years probation with conditions	Suspension until compliant with program and up to five (5) years probation with conditions, or revocation, and up to $2,000 fine
(ff)  456.072(1)(ii)	Reprimand and $5,000 fine to revocation
(gg)  456.072(1)(jj)	Reprimand and $1,000 fine to revocation
(hh)  456.072(1)(kk)	Reprimand, $1,000 fine to revocation
(ii)  456.072(1)(ll)	Reprimand, and $10,000 fine to revocation
(jj)  456.072(1)(nn)	Letter of concern
(kk)  480.0535(2)(b)	$500 fine to revocation

 

(4)  Based upon consideration of aggravating or mitigating factors, present in an individual case, the Board may deviate from the penalties for the violations charged.  The Board shall consider as aggravating or mitigating factors the following:

(a)  The danger to the public;

(b)  The length of time since the violation;

(c)  The number of times the licensee has been previously disciplined by the Board;

(d)  The length of time licensee has practiced;

(e)  The actual damage, physical or otherwise, caused by the violation;

(f)  The deterrent effect of the penalty imposed;

(g)  The effect of the penalty upon the licensees livelihood;

(h)  Any effort of rehabilitation by the licensee;

(i)  The actual knowledge of the licensee pertaining to the violation;

(j)  Attempts by licensee to correct or stop violation or refusal by licensee to correct or stop violation;

(k)  Related violations against licensee in another state including findings of guilt or innocence, penalties imposed and penalties served;

(l)  Actual negligence of the licensee pertaining to any violation;

(m)  Penalties imposed for related offenses under subsections (1) and (2) above;

(n)  Any other mitigating or aggravating circumstances.

(5)  When the Board finds any person guilty of the grounds set forth in subsection (1) or of any grounds set forth in the applicable practice act, including conduct constituting a substantial violation of subsection (1) or a violation of the applicable practice act which occurred prior to obtaining a license, it shall enter an order imposing one or more of the following penalties:

(a)  Refusal to certify, or to certify with restrictions, an application for a license.

(b)  Suspension or permanent revocation of a license.

(c)  Restriction of practice.

(d)  Imposition of an administrative fine not to exceed $10,000 for each Count or separate offense.

(e)  Issuance of a reprimand.

(f)  Placement of the licensee on probation for a period of time and subject to such conditions as the Board may specify.  Those conditions shall include requiring the licensee to undergo treatment, attend continuing education courses, submit to be reexamined, work under the supervision of another licensee, or satisfy any terms which are reasonably tailored to the violations found.

(g) Corrective action.

(6) The provisions of subsections (1) through (4) above are not intended and shall not be construed to limit the ability of the Board to informally dispose of disciplinary actions by stipulation, agreed settlement, or consent order pursuant to Section 120.57(4), F.S.

(7) The provisions of subsections (1) through (4) above are not intended and shall not be construed to limit the ability of the Board to pursue or recommend the Department pursue collateral, civil or criminal actions when appropriate.

(8) In any proceeding where the Board is authorized to take disciplinary action, the Board will also impose costs of investigation and prosecution as authorized by Section 456.072(4), F.S.

(9) Whenever the Board, in accordance with this rule, imposes a monetary fine against a respondent in an Administrative Complaint, it shall also impose a suspension of the respondent’s license until the fine is paid.  However, to enable the respondent to pay the monies fine, the Board shall stay the imposition of the suspension for the same time period as specified, in accordance with Rule 64B7-24.016, F.A.C., for payment of the monies fine. If the fine is paid within the specified time, then the order of suspension shall not take effect; if the fine is paid after the order of suspension has taken effect, then the stay shall be lifted.

Rulemaking Authority 456.072(2), 456.073(4), 456.079(1), (3), (4), 480.035(7) FS.  Law Implemented 456.072(2), 456.073(4), 456.079(1), (3), (4), 480.046, 480.047 FS.  History- New 3-26-87, Formerly 21L-30.002, Amended 9-30-93, 12-12-93, 8-16-94, 10-1-95, 2-5-96, 5-12-96, 5-29-97, Formerly 61G11-30.002, Amended 2-18-98, 11-4-98, 1-26-00, 10-7-02, 10-12-03, 12-13-05,_________.

 

NAME OF PERSON ORIGINATING RULE: Board of Massage Therapy

NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: Board of Massage Therapy

DATE OF PROPOSED RULE APPROVED BY AGENCY HEAD: October 26, 2012

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: February 4, 2013