The purpose of this amendment is to amend the penalties and sentencing guidelines.

DEPARTMENT OF HEALTH
Board of Nursing

RULE NO.: RULE TITLE:
64B9-15.009: Disciplinary Guidelines; Range of Penalties; Aggravating and Mitigating Circumstances

PURPOSE AND EFFECT: The purpose of this amendment is to amend the penalties and sentencing guidelines.

SUMMARY: The Board proposes this rule amendment to amend the penalties and sentencing 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, 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: 464.204 FS.
LAW IMPLEMENTED: 456.072, 464.204 FS.

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

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Joe R. Baker, Jr., Executive Director, Board of Nursing/MQA, 4052 Bald Cypress Way, Bin #C02, Tallahassee, Florida 32399-3252.

 

THE FULL TEXT OF THE PROPOSED RULE IS:

64B9-15.009 Disciplinary Guidelines; Range of Penalties; Aggravating and Mitigating Circumstances.

(1) through (2) No change.

(3) The following disciplinary guidelines shall be followed by the Board in imposing disciplinary penalties upon registrants for violation of the noted statutes and rules:

(a) Being found guilty, regardless of adjudication, of a forcible felony as defined in Chapter 776, F.S.

(Section 464.018(1)(d)1., F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$50 fine	Denial of certification or $150 fine and suspension to be followed by a term of probation or revocation
SECOND OFFENSE	$100 fine and probation	Denial of certification or $150 $1000 fine and revocation

 

(b) through (c) No change.

(d) Being found guilty, regardless of adjudication, of a violation of Chapter 800, F.S., relating to lewdness and indecent exposure.

(Section 464.018(1)(d)4., F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$50 fine, and probation	Denial of certification or $100 fine, IPN evaluation, and suspension to be followed by a term of probation or revocation
SECOND OFFENSE	$100 fine, IPN evaluation, and suspension to be followed by a term of probation	Denial of certification and $150 fine and permanent revocation

(e) No change.

(f) Being found guilty, regardless of adjudication, of a violation of Chapter 827, F.S., relating to child abuse.

(Section 464.018(1)(d)6., F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$50 fine	Denial of certification or $100 fine and suspension followed by a term of probation or revocation
SECOND OFFENSE	$100 fine and probation	Denial of certification or $150 fine and permanent revocation

(g) Being found guilty, regardless of adjudication, of a violation of Chapter 415, F.S., relating to protection from abuse, neglect, and exploitation.

(Section 464.018(1)(d)7., F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$50 fine	Denial of certification or $100 fine and suspension to be followed by a term of probation or revocation
SECOND OFFENSE	$100 fine and probation	Denial of certification or $150 fine and permanent revocation

(h) Being found guilty, regardless of adjudication, of a violation of Chapter 39, F.S., relating to child abuse, abandonment, and neglect.

(Section 464.018(1)(d)8., F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$50 fine	Denial of certification or $100 fine and suspension to be followed by a term of probation or revocation
SECOND OFFENSE	$100 fine and probation	Denial of certification or $150 fine and permanent revocation

(i) Having been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under Section 435.03, F.S., or under any similar statute of another jurisdiction; or having committed an act which constitutes domestic violence as defined in Section 741.28, F.S.

(Section 464.018(1)(e), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$50 fine	Denial of certification or $100 fine and suspension to be followed by a term of probation or revocation
SECOND OFFENSE	$100 fine and probation	Denial of certification or $150 fine and permanent revocation

(j) False, misleading, or deceptive advertising.

(Section 464.018(1)(g), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$100 fine $25 fine	Denial of certification or $125 fine and suspension to be followed by probation $100 fine and probation
SECOND OFFENSE	$100 fine	Denial of certification or $125 fine and suspension to be followed by probation
THIRD OFFENSE	$125 fine and probation	$150 fine and suspension to be followed by probation

(k) Engaging or attempting to engage in the possession, sale, or distribution of controlled substances as set forth in Chapter 893, F.S., for any other than legitimate purposes authorized by this part.

(Section 464.018(1)(i), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$100 fine, IPN evaluation, and suspension to be followed by probation $25 fine, IPN evaluation, and probation	Denial of certification and $125 fine and permanent or $50 fine, IPN evaluation and suspension to be followed by a term of probation or revocation
SECOND OFFENSE	$125 fine and revocation $100 fine, IPN evaluation, and suspension to be followed by probation	Denial of certification or $150 fine and revocation and $125 fine and permanent revocation
THIRD OFFENSE	$125 fine and revocation	$150 fine and permanent revocation

(l) Failing to report to the department any person who the registrant knows is in violation of this part or of the rules of the department or the board; however, if the registrant verifies that such person is actively participating in a board-approved program for the treatment of a physical or mental condition, the registrant is required to report such person only to an impaired professionals consultant.

(Section 464.018(1)(k) or 456.072(1)(i), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$50 $25 fine	Denial of certification or $100 fine and suspension to be followed by probation $25 fine and probation
SECOND OFFENSE	$75 fine and probation $50 fine	Denial of Certification or $150 fine and suspension to be followed by probation $100 fine and suspension to be followed by probation
THIRD OFFENSE	$75 fine and probation	$150 fine and suspension to be followed by probation

(m) No change.

(n) Knowingly violating any provision of this part, a rule of the board or the department, or a lawful order of the board or department previously entered in a disciplinary proceeding or failing to comply with a lawfully issued subpoena of the department.

(Sections 456.072(1)(b), 456.072(1)(q), 456.072(1)(dd) & 464.018(1)(l)(n), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$50 fine and compliance with rule or terms of prior order	Denial of certification or $100 fine and suspension until compliance with rule or terms of prior order
SECOND OFFENSE	$125 fine and suspension until compliance with rule or terms of prior order plus extended probation $100 fine and suspension until compliance with rule or terms of prior order	Denial of certification or $150 fine and revocation $125 fine and suspension until compliance with rule or terms of prior order plus extended probation
THIRD OFFENSE	$125 fine and suspension until compliance with rule or terms of prior order plus extended probation	$150 fine and revocation

 

(o) Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of a certified nursing assistant or to the ability to practice as a certified nursing assistant.

(Section 456.072(1)(c), 464.018(1)(c), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$50 fine	Denial of certification or $100 fine and suspension to be followed by a term of probation or revocation
SECOND OFFENSE	$100 fine and probation	Denial of certification or $150 fine and revocation

(p) Having a license or the authority to practice any regulated profession revoked, suspended, or otherwise acted against, including the denial of licensure or certification, by the licensing authority of any jurisdiction, including its agencies or subdivisions, for a violation that would constitute a violation under Florida law.

(Section 456.072(1)(f), 464.018(1)(b), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$50 fine and same penalty imposed by the other jurisdiction	Denial of certification or $100 fine and suspension to be followed by a term of probation or revocation
SECOND OFFENSE	$100 fine and same penalty imposed by the other jurisdiction which at a minimum must include a term of probation	Denial of certification licensure or $150 fine and revocation
THIRD OFFENSE	$150 fine and same penalty imposed by the other jurisdiction which at a minimum must include a term of suspension	Denial of certification licensure or $150 fine and permanent revocation

(q) No change.

(r) Procuring, attempting to procure, or renewing certification to practice as a CNA by bribery, by knowing misrepresentations, or through an error of the department or the board.

(Section 456.072(1)(h), 464.018(1)(a), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$50 fine and probation	Denial of certification or revocation
SECOND OFFENSE	$150 fine and probation	Denial of certification or permanent revocation

(s) No change.

(t) Failing to perform any statutory or legal obligation placed upon a registrant.

(Section 456.072(1)(k), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$50 fine and compliance with legal obligation	Denial of certification or $100 fine and suspension until compliance with legal obligation
SECOND OFFENSE	$125 fine and suspension until compliance with legal obligation plus extended probation $100 fine and suspension until compliance with legal obligation	Denial of certification or $150 fine and revocation $125 fine and suspension until compliance with legal obligation plus extended probation
THIRD OFFENSE	$125 fine and suspension until compliance with legal obligation plus extended probation	$150 fine and revocation

(u) Making or filing a report which the registrant knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, or willfully impeding or obstructing another person to do so.

(Section 456.072(1)(l), 464.018(1)(f), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$50 fine	$75 fine and suspension to be followed by probation
SECOND OFFENSE	$125 fine and suspension to be followed by probation $75 fine and probation	Denial of certification or $150 fine and revocation $100 fine and suspension to be followed by probation
THIRD OFFENSE	$125 fine and suspension to be followed by probation	$150 fine and revocation

(v) No change.

(w) Exercising influence on the patient or client for the purpose of financial gain of the registrant or a third party.

(Section 456.072(1)(n), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$75 fine and probation	Denial of certification or revocation and $125 fine
SECOND OFFENSE	$125 fine and probation	Denial of certification or permanent revocation and $150 fine

(x) Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities the registrant knows, or has reason to know, the registrant is not competent to perform.

(Section 456.072(1)(o), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$75 fine and probation	Denial of certification or revocation and $125 fine
SECOND OFFENSE	$125 fine and probation	Denial of certification or permanent revocation and $150 fine

 

(y) Delegating or contracting for the performance of professional responsibilities by a person when the registrant delegating or contracting for 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.

(Section 456.072(1)(p), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$75 fine and probation	Denial of certification or revocation and $125 fine
SECOND OFFENSE	$125 fine and probation	Denial of certification or permanent revocation and $150 fine

(z) No change.

(aa) Engaging or attempting to engage in sexual misconduct as defined and prohibited in Section 456.063(1), F.S.

(Section 456.072(1)(v), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$100 fine, IPN evaluation, and probation	Denial of certification or $125 fine, IPN evaluation, and suspension to be followed by a term of probation or revocation
SECOND OFFENSE	$125 fine, IPN evaluation, and suspension to be followed by a term of probation	Denial of certification and $150 fine and permanent revocation

(bb) Failing to comply with the requirements for profiling and credentialing, including, but not limited to, failing to provide initial information, failing to timely provide updated information, or making misleading, untrue, deceptive, or fraudulent representations on a profile, credentialing, or initial or renewal licensure application.

(Section 456.072(1)(w), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$50 fine	Denial of certification or $100 fine and suspension to be followed by a term of probation
SECOND OFFENSE	$125 fine and probation	Denial of certification or $150 fine and revocation suspension to be followed by a term of probation

(cc) Failing to report to the board, or the department if there is no board, in writing within 30 days after the registrant has been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction. Convictions, findings, adjudications, and pleas entered into prior to the enactment of this paragraph must be reported in writing to the board, or department if there is no board, on or before October 1, 1999.

(Section 456.072(1)(x), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$50 fine and probation	Denial of certification or revocation and $100 fine
SECOND OFFENSE	$100 fine and probation	Denial of certification or permanent revocation and $150 fine

(dd) Using information about people involved in motor vehicle accidents which has been derived from accident reports made by law enforcement officers or persons involved in accidents pursuant to Section 316.066, F.S., or using information published in a newspaper or other news publication or through a radio or television broadcast that has used information gained from such reports, for the purposes of commercial or any other solicitation whatsoever of the people involved in such accidents.

(Section 456.072(1)(y), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$75 $50 fine	Denial of certification or $100 fine and suspension to be followed by probation $75 fine and probation
SECOND OFFENSE	$100 fine and probation $75 fine	Denial of certification or $150 $100 fine and suspension to be followed by probation
THIRD OFFENSE	$100 fine and probation	$150 fine and suspension to be followed by probation

(ee) Being unable to practice as a CNA with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any mental or physical condition.

(Section 456.072(1)(z), 464.018(1)(j), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$50 fine, IPN evaluation, and probation	Denial of certification or $100 fine, IPN evaluation, and suspension to be followed by a term of probation
SECOND OFFENSE	$125 fine and revocation $100 fine, IPN evaluation, and suspension to be followed by probation	Denial of certification or $150 and $125 fine and permanent revocation
THIRD OFFENSE	$125 fine and revocation	$150 fine and permanent revocation

(ff) Testing positive for any drug, as defined in Section 112.0455, F.S., on any confirmed preemployment or employer-ordered drug screening when the practitioner does not have a lawful prescription and legitimate medical reason for using such drug.

(Section 456.072(1)(aa), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$50 fine, IPN evaluation, and probation	denial of certification or $100 fine, IPN evaluation, and suspension to be followed by a term of probation
SECOND OFFENSE	$100 fine, IPN evaluation, and suspension to be followed by a term of probation	denial of certification and $150 fine and permanent revocation

(gg) 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.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$50 fine	Denial of certification or $75 fine and suspension to be followed by a term of probation
SECOND OFFENSE	$125 fine and suspension to be followed by a term of probation $75 fine and a term of probation	Denial of certification or $150 $100 fine and revocation suspension to be followed by a term of probation
THIRD OFFENSE	$125 fine and suspension to be followed by a term of probation	$150 fine and permanent revocation

(hh) Being terminated from or failing to successfully complete an impaired practitioner treatment program (Section 456.072(1)(hh), F.S.):

	MINIMUM	MAXIMUM
FIRST OFFENSE	$50 fine, IPN evaluation, and probation	Denial of certification or $100 fine, IPN evaluation, and suspension to be followed by a term of probation
SECOND OFFENSE	$125 fine, and revocation	Denial of certification or $150 fine and revocation

Minimum: $150 fine and suspension until successful completion or receipt of written confirmation from program that further treatment is neither required nor indicated.

Maximum: Permanent revocation or denial of licensure.

(ii) Intentionally engaging in unprofessional conduct, as defined in Rule 64B9-8.005, F.A.C.

(Section 464.018(1)(h), F.S.):

	MINIMUM	MAXIMUM
FIRST OFFENSE	$50.00 fine, reprimand and probation, continuing education	Denial of certification or $150.00 fine, reprimand, suspension followed by probation, or revocation
SECOND OFFENSE	$150,00 fine, reprimand, suspension followed by probation	Denial of certification or $150.00 fine and revocation

If the unprofessional conduct involves hitting a patient or intentionally causing harm to a patient, the MINIMUM penalty for a FIRST OFFENSE is REVOCATION of the license.

(jj) Using a Class III or a Class IV laser device or product, as defined by federal regulations, without having complied with the rules adopted under Section 501.122(2), F.S., governing the registration of the devices.

(Section 456.072(1)(d), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$50 fine, reprimand, and probation	Denial of certification or $150 fine, reprimand, suspension followed by probation, or revocation
SECOND OFFENSE	$150 fine and suspension followed by probation	Denial of certification or $150 fine and revocation

(kk) Failing to identify through written notice, which may include the wearing of a name tag, or orally to a patient the type of license under which the practitioner is practicing. Any advertisement for health care services naming the practitioner must identify the type of license the practitioner holds. This paragraph does not apply to a practitioner while the practitioner is providing services in a facility licensed under Chapter 394, Chapter 395, Chapter 400, or Chapter 429, F.S. Each board, or the department where there is no board, is authorized by rule to determine how its practitioners may comply with this disclosure requirement.

(Section 456.072(1)(t), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$50 fine	Denial of certification or $100 fine, and suspension
SECOND OFFENSE	$150 fine and suspension	Denial of certification or $150 fine and revocation

(ll) Failing to comply with the requirements of Sections 381.026 and 381.0261, F.S., to provide patients with information about their patient rights and how to file a patient complaint.

(Section 456.072(1)(u), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$50 fine	Denial of certification or $100 fine, and suspension
SECOND OFFENSE	$150 fine and suspension	Denial of certification or $150 fine and revocation

(mm) With respect to making a personal injury protection claim as required by Section 627.736, F.S., intentionally submitting a claim, statement, or bill that has been “upcoded” as defined in Section 627.732, F.S.

(Section 456.072(1)(ee), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$100 fine	Denial of certification or $100 fine, and suspension
SECOND OFFENSE	$150 fine	Denial of certification or $150 fine and revocation

(nn) With respect to making a personal injury protection claim as required by Section 627.736, F.S., intentionally submitting a claim, statement, or bill for payment of services that were not rendered.

(Section 456.072(1)(ff), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$50 fine	Denial of certification or $100 fine, and suspension
SECOND OFFENSE	$150 fine	Denial of certification or $150 fine and revocation

(oo) 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.

(Section 456.072(1)(ii), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$150 fine and suspension	Denial of certification or revocation

(pp) 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.

(Section 456.072(1)(jj), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	Suspension until repayment	Denial of certification or revocation

(qq) Being terminated from the state Medicaid program pursuant to Section 409.913, F.S., 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.

(Section 456.072(1)(kk), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$150 fine and suspension	Denial of certification or revocation

(rr) 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 relates to health care fraud.

(Section 456.072(1)(ll), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$150 fine and suspension	Denial of certification or revocation

(4) through (7) No change.

Rulemaking Specific Authority 464.204 FS. Law Implemented 456.072, 464.204 FS. History–New 10-28-02, Amended 8-12-07, 8-3-08,_________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Board of Nursing

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

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: October 6, 2011

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: January 20, 2012