The Board proposes the rule amendment to update statutory references.

 

DEPARTMENT OF HEALTH

Board of Nursing

RULE NO.:RULE TITLE:

64B9-8.006Disciplinary Guidelines; Range of Penalties; Aggravating and Mitigating Circumstances

PURPOSE AND EFFECT: The Board proposes the rule amendment to update statutory references.

SUMMARY: Statutory references will be updated in the rule.

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: 456.072, 456.079 FS.

LAW IMPLEMENTED: 456.072, 456.079, 464.018 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: Joe Baker, Jr., Executive Director, Board of Nursing, 4052 Bald Cypress Way, Bin #C02, Tallahassee, Florida 32399; [e-mail].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

64B9-8.006 Disciplinary Guidelines; Range of Penalties; Aggravating and Mitigating Circumstances.

(1) No change.

(2) The Board sets forth below a range of disciplinary guidelines from which disciplinary penalties will be imposed upon practitioners or telehealth providers registered under section 456.47(4), F.S. and applicants for licensure guilty of violating chapters 464 and 456, F.S. The purpose of the disciplinary guidelines is to give notice to licensees and applicants of the range of penalties which will normally be imposed upon violations of particular provisions of Chapters 464 and 456, F.S.

For telehealth registrants, a suspension may be accompanied by a corrective action plan to be completed prior to reinstatement of the suspended registration or the corrective action plan may follow a suspension for a definite term.

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

(a) Procuring, attempting to procure, or renewing a license to practice nursing by bribery, by knowing misrepresentations, or through an error of the department or board. (Section 456.072(1)(h) or 464.018(1)(a), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$500 fine and probation	$10,000 fine and revocation
FOR TELEHEALTH REGISTRANTS	Denial of license	Revocation

(b) Having a license to practice nursing revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of this or any other state, territory or country. (Section 456.072(1)(f) or 464.018(1)(b), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	Letter of concern	Imposition of same penalty that would be imposed if the violation had occurred in Florida
SECOND OFFENSE	Imposition of same penalty that would be imposed if the violation had occurred in Florida	Revocation
FOR TELEHEALTH REGISTRANTS	Imposition of same penalty that would be imposed if the violation had occurred in Florida, or denial of license	Revocation

(c) Criminal Violations:

1. Being convicted of or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication of a crime in any jurisdiction which directly relates to the practice of nursing or to the ability to practice nursing. (section 456.072(1)(c), 464.018(1)(c), or 456.072(1)(ii), (ll), F.S.) or

2. Being convicted of or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication of a crime under specifically identified state or federal status. (section 464.018(1)(d), 464.018(1)(e), or 456.072(1)(ii) or (ll), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand	Revocation
SECOND OFFENSE	Suspension	Revocation
FOR TELEHEALTH REGISTRANTS	Reprimand	Revocation

(d) Making or filing a false report or record, which the licensee knows to be false, intentionally or negligently failing to file a report or records required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so; Intentionally submitting a claim, statement or bill that has been upcoded as defined in section 627.736, F.S., for a PIP claim or for services that were not rendered. (section 456.072(1)(l), (ee) or (ff) or 464.018(1)(f), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$250 fine, continuing education or probation	$10,000 fine and suspension
SECOND OFFENSE	$500 fine and suspension	$10,000 and revocation
FOR TELEHEALTH REGISTRANTS	Reprimand	Suspension with a corrective action plan or revocation

(e) False, misleading or deceptive advertising. (Section 464.018(1)(g), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$100 fine	$250 fine and probation
SECOND OFFENSE	$250 fine and probation	$500 fine and suspension
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE	Letter of concern	Reprimand
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE	Suspension with corrective action plan	Revocation

(f) Unprofessional conduct as defined by rule 64B9-8.005, F.A.C. (section 464.018(1)(h), F.S.).

1. Subsections 64B9-8.005(1) and (2), F.A.C.

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand, $250 fine, and continuing education	$500 fine and suspension with IPN evaluation or probation
SECOND OFFENSE	$500 fine, suspension and IPN evaluation	Revocation
FOR TELEHEALTH REGISTRANTS	Reprimand	Suspension with corrective action plan
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE	Suspension with corrective action	Revocation

2. Subsections 64B9-8.005(5), (6), (7), (9), (10), (11), (12) and (13), F.A.C.

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand, $500 fine and continuing education	Revocation
FOR TELEHEALTH REGISTRANTS	Reprimand	Revocation

3. Subsections 64B9-8.005(3), (8) and (14), F.A.C.

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand, $250 fine, and continuing education	$500 fine and probation
SECOND OFFENSE	$750 fine and probation	Revocation
FOR TELEHEALTH REGISTRANTS	Reprimand	Suspension with corrective action
FOR TELEHEALTH REGISTRANTS	Suspension with corrective action plan	Revocation

4. Subsection 64B9-8.005(4), F.A.C.

	MINIMUM	MAXIMUM
FIRST OFFENSE	Revocation
FOR TELEHEALTH REGISTRANTS	Revocation

5. Subsection 64B9-8.005(15), F.A.C.

	MINIMUM	MAXIMUM
FIRST OFFENSE	$5,000 fine	Revocation
FOR TELEHEALTH REGISTRANTS	Reprimand to suspension with corrective action plan	Revocation

(g) Engaging or attempting to engage in the possession, sale or distribution of controlled substances as set forth in chapter 893, F.S. for illegitimate purposes; being unable to practice nursing 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; testing positive for any drug, as defined in section 112.0455, F.S., on any confirmed pre-employment or employer-ordered drug screening when the practitioner does not have a lawful prescription and legitimate medical reason for using such drug; or being terminated from a treatment program for impaired practitioners for failure to comply without good cause with the terms of the monitoring or treatment contract, or not successfully completing a drug or alcohol treatment program. (section 456.072(1)(z), (aa), or (hh), or 464.018(1)(i) or (j), F.S.

	MINIMUM	MAXIMUM
FIRST OFFENSE	$250 fine, suspension and IPN evaluation	$500 fine, suspension, or revocation
SECOND OFFENSE	$500 fine, suspension and IPN evaluation	Revocation
FOR TELEHEALTH REGISTRANTS	Suspension with corrective action plan	Revocation

(h) Failing to report to the department any person who the licensee knows is in violation of this part or of the rules of the department or the board; however, if the licensee verifies that such person is actively participating in a board-approved program for the treatment of a physical or mental condition, the licensee is required to report such person only to an impaired professionals consultant. (section 456.072(1)(i) or 464.018(1)(k), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$100 fine and continuing education	$250 fine and probation
SECOND OFFENSE	$250 fine and probation	$500 fine, continuing education and suspension
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE	Letter of Concern	Reprimand
FOR TELEHEALTH REGISTRANTS	Reprimand to suspension with corrective action plan	Revocation
SECOND OFFENSE

(i) Knowingly violating any provision of Chapter 456 or 464, F.S., 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; or failing to perform any statutory or legal obligation placed on a licensee. (Section 456.072(1)(b), (k) or (q), (dd), or 464.018(1)(l) or (o), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$250 fine and compliance with rule or terms of prior order	$500 fine and suspension until compliant with rule or terms of prior order
SECOND OFFENSE	$500 fine and suspension until compliant with rule or terms of prior order	Revocation
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE	Reprimand	Suspension with corrective action plan
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE	Suspension with corrective action	Revocation

(j) Failing to report to the department any licensee under chapter 458, or 459, F.S., who the nurse knows has violated the grounds for disciplinary action set out in the law under which that person is licensed and who provides health care services in a facility licensed under chapter 395, F.S., or a health maintenance organization certificated under part I of chapter 641, F.S., in which the nurse also provides services. (Section 464.018(1)(m), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand	Revocation
FOR TELEHEALTH REGISTRANTS	Reprimand	Revocation

(k) Failing to meet minimal standards of acceptable and prevailing nursing practice, including engaging in acts for which the licensee is not qualified by training or experience, or 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. (Section 456.072(1)(o), (gg) or 464.018(1)(n), (p), (q) or 456.44(3), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand, $250 fine, and continuing education	Revocation
FOR TELEHEALTH REGISTRANTS	Reprimand	Revocation

(l) Making misleading, deceptive or fraudulent representations in or related to the practice of the licensee’s profession or making deceptive, untrue, or fraudulent representations in or related to the practice of a profession or employing a trick or scheme in or related to the practice of a profession. (Section 456.072(1)(a) or (m), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand and $250 fine	$10,000 fine and suspension, or revocation
SECOND OFFENSE	$500 fine and suspension	$10,000 fine and revocation
FOR TELEHEALTH REGISTRANTS	Reprimand	Suspension with corrective action plan
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE	Suspension with corrective action plan	Revocation

(m) 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	Reprimand and $100 fine	$250 fine and probation
SECOND OFFENSE	$250 fine and probation	$500 fine and suspension
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE	Reprimand	Suspension with corrective action plan
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE	Suspension with corrective action plan	Revocation

(n) Failing to comply with the educational course requirements. (Section 456.072(1)(e) or (s), 464.013(3)(b), F.S., or rule 64B9-5.002, F.A.C.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand and $250 fine	$500 fine and suspension until licensee complies
SECOND OFFENSE	$500 fine and suspension until licensee complies	$750 fine, suspension until licensee complies followed by probation
FOR TELEHEALTH REGISTRANTS	Not applicable

(o) Having been found liable in a civil proceeding for knowingly filing a false report or complaint with the department against another licensee. (Section 456.072(1)(g), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand and $250 fine	$500 fine and suspension
SECOND OFFENSE	$500 fine and suspension	Revocation
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE	Reprimand	Suspension with corrective action plan
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE	Suspension with corrective action plan	Revocation

(p) Aiding, assisting, procuring, employing, or advising any unlicensed person or entity to practice a profession contrary to this chapter, the chapter regulating the profession, or the rules of the department or the board, or delegating or contracting for the performance of professional responsibilities by a person when the licensee delegating or contracting for performance of the responsibilities knows, or has reason to know, the person is not qualified by training, experience, and authorization when required to perform them. (Section 456.072(1)(j), (p), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$250 fine and continuing education	$500 fine and probation or suspension, or revocation
SECOND OFFENSE	$500 fine and probation or suspension	Revocation
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE	Reprimand	Suspension with corrective action plan
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE	Suspension with corrective action plan	Revocation

(q) Exercising influence on the patient or client for the purpose of financial gain of the licensee or a third party. (Section 456.072(1)(n), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$250 fine and probation	Revocation
FOR TELEHEALTH REGISTRANTS	Reprimand to suspension with corrective action plan	Revocation

(r) Improperly interfering with an investigation or inspection authorized by statute, or with any disciplinary proceeding. (Section 456.072(1)(r), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand and $250 fine	$500 fine and suspension
SECOND OFFENSE	$500 fine and probation	Revocation
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE	Reprimand	Suspension with corrective action plan
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE	Suspension with corrective action plan	Revocation

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

	MINIMUM	MAXIMUM
FIRST OFFENSE	Letter of concern	Reprimand and $200 fine
SECOND OFFENSE	Reprimand and $500 fine	$500 fine and probation
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE	Letter of concern	Reprimand
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE	Suspension with corrective action plan	Revocation

(t) 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	$100 fine and continuing education	$250 fine and probation
SECOND OFFENSE	$500 fine and probation	$500 fine and suspension
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE	Letter of concern	Reprimand
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE	Suspension with corrective action plan	Revocation

(u) 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	$250 fine, suspension and IPN evaluation	$500 fine and suspension, or revocation
FOR TELEHEALTH REGISTRANTS	Suspension with corrective action plan	Revocation

(v) 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), 456.041(8) or 456.44(2), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand and $250 fine	$500 fine and suspension until compliant
SECOND OFFENSE	$500 fine and probation	$750 fine and suspension until compliant
FOR TELEHEALTH REGISTRANTS	Not applicable

For failure to verify the profile contents and to correct any factual errors in the licensee’s profile within the 30-day period in section 456.041(8), F.S.: A fine of $50 per day.

(w) Failing to report to the board, or the department if there is no board, in writing within 30 days after the licensee has been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction. (Section 456.072(1)(x), F. S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand, $250 fine and continuing education	$500 fine and probation
SECOND OFFENSE	$500 fine and probation	Revocation
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE	Reprimand	Suspension with corrective action plan
FOR TELEHEALTH REGISTRANTS	Suspension with corrective action plan	Revocation

(x) 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 under 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 the accidents. (Section 456.072(1)(y), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand and $100 fine	$250 fine and probation
SECOND OFFENSE	$250 fine and probation	$500 fine and suspension followed by probation
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE	Letter of concern	Reprimand
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE	Reprimand	Suspension with corrective action plan

(y) 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 or 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)(bb) or (cc), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand, $250 and continuing education	Reprimand, $500 fine and continuing education
SECOND OFFENSE	$500 fine and probation	$750 fine and suspension
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE	Letter of concern	Reprimand
FOR TELEHEALTH REGISTRANTS	Suspension with corrective action plan	Revocation

(z) 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	$500 fine and reprimand	Suspension until payment is made
SECOND OFFENSE	Suspend until payment is made	Revocation
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE	Reprimand	Suspension with corrective action plan
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE	Suspension with corrective action plan	Revocation

(aa) 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	$500 fine and Reprimand	Revocation

(bb) No change

(cc) Failing to consult the prescription drug monitoring system, as required by section 893.055(8), F.S. (Section 456.072(1)(k), F.S.)

	MINIMUM	MAXIMUM
SECOND OFFENSE	$250 fine and Reprimand	Suspension and $500 fine

(dd) through (ee) No change.

(ff) Providing information, including written documentation, 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 knwoledge of the person’s disability or disability-related need for the specific emotional support animal. (Section 456.072(1)(pp), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$250 fine and reprimand	$500 fine and suspension
SECOND OFFENSE	$1,000 fine and suspension	Revocation
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE	Reprimand	Suspension with corrective action plan
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE	Suspension with corrective action plan	Revocation

(gg) Failing to display hyperlink on telehealth registrant’s website.  (Section 456.47(4)(c), F.S.)

	MINIMUM	MAXIMUM
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE	Letter of concern	Suspension with corrective action plan
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE	Reprimand	Revocation

(hh) Opening an office in Florida or providing in-person healthcare services to patients in Florida.  (Section 456.47(4)(f), F.S.)

	MINIMUM	MAXIMUM
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE	Suspension with corrective action plan	Revocation
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE	Revocation

(ii) Failing to report disciplinary action by another jurisdiction including pending disciplinary action.  (Section 456.47(4)(d), F.S.)

	MINIMUM	MAXIMUM
FOR TELEHEALTH REGISTRANTS FIRST OFFENSE	Reprimand	Revocation
FOR TELEHEALTH REGISTRANTS SECOND OFFENSE	Suspension with a corrective action plan	Revocation

(4) through (6) No change.

Rulemaking Authority 456.072, 456.079 FS. Law Implemented 456.072, 456.079, 464.018 FS. History–New 2-5-87, Amended 8-12-87, 12-8-87, 11-23-89, 7-28-92, Formerly 21O-10.011, Amended 12-5-93, Formerly 61F7-8.006, Amended 5-1-95, Formerly 59S-8.006, Amended 8-18-98, 7-1-99, 3-23-00, 5-8-00, 5-2-02, 1-12-03, 2-22-04, 8-3-05, 7-5-06, 2-6-12, 11-19-12, 2-2-17, 2-11-19, 6-11-20,                                     .

 

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: April 9, 2021

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: November 12, 2020