The Board proposes the rule amendment to clarify, and add penalties for telehealth providers, and violation of 456.072(1)(pp), F.S.

 

DEPARTMENT OF HEALTH

Board of Massage Therapy

RULE NO.:RULE TITLE:

64B7-30.002Disciplinary Guidelines

PURPOSE AND EFFECT: The Board proposes the rule amendment to clarify, and add penalties for telehealth providers, and violation of 456.072(1)(pp), F.S.

SUMMARY: The proposed rule clarifies and add penalties for telehealth providers, and violation of 456.072(1)(pp), F.S.

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: 456.079(1)(3), 480.035(7) FS.

LAW IMPLEMENTED: 456.072(2), 456.079(1), (3), 480.041, 480.043, 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 FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Kama Monroe, Executive Director, Board of Massage Therapy, 4052 Bald Cypress Way, Bin # C06, Tallahassee, Florida 32399-3257.

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

64B7-30.002 Disciplinary Guidelines.

(1) No change.

(2) Disciplinary Guidelines:

RECOMMENDED RANGE OF PENALTY
VIOLATION	FLORIDA LICENSES		TELEHEALTH REGISTRANTS
	FIRST OFFENSE	ADDITIONAL OFFENSE	FIRST OFFENSE	ADDITIONAL OFFENSE
(a) Section 480.046(1)(a), F.S. Attempting to procure a license to practice massage by bribery or fraudulent misrepresentation or Section 456.072(1)(h), F.S. Attempting to obtain, obtaining, or renewing a license to practice a profession through an error of the department or the board.   If bribery or fraudulent representation is found.	Denial of application, or reprimand, $250 to $1,500 fine, continuing education.     Denial of application and $10,000 fine.	$10,000 fine and revocation             Denial of application and $10,000 fine.	Reprimand to suspension and corrective action plan         Revocation	Revocation               Revocation
(b) Section 480.046(1)(b), F.S. Having a license to practice massage revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of another state, territory, or country. Section 456.072(1)(f), F.S. Having a license or the authority to practice any regulated profession revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions, for a violation that would constitute a violation under Florida law. The licensing authority’s acceptance of a relinquishment of licensure, stipulation, consent order, or other settlement, offered in response to or in anticipation of the filing of charges against the license, shall be construed as action against the license.	Up to the comparable penalty or action imposed in other jurisdiction.	Suspension to revocation	Letter of Concern to Suspension and Corrective Action Plan	Suspension to Revocation
(c) Section 480.046(1)(c), F.S. Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of massage or to the ability to practice massage. Any plea of nolo contendere shall be considered a conviction for purposes of Chapter 480. Section 456.072(1)(c), F.S. Being convicted or found guilty of, or entering a plea of guilty or nolo contendere to, regardless of adjudication, a crime in any jurisdiction which relates to the practice of, or the ability to practice, a licensee’s profession.   Misdemeanors       Felonies       Crimes having a factual basis related to prostitution, or solicitation for prostitution, or assault, battery, abuse, or which otherwise caused bodily harm.     Crimes involving fraudulent misrepresentation.	Reprimand and $250 fine     $500 fine and probation     $1,000 fine and revocation         $10,000 fine and suspension	$500 fine and probation or suspension   $500 fine and suspension     n/a           $10,000 fine and revocation	Reprimand       Suspension and corrective action plan   Revocation           Suspension and corrective action plan	Suspension and corrective action plan   Suspension and corrective action plan to revocation   n/a           Suspension and corrective action plan to revocation
(d) Section 480.046(1)(d), F.S. False, deceptive, or misleading advertising.	Reprimand and $500 fine to probation and $750 fine	Suspension and $1,000 fine to revocation and $1,000 fine	Letter of concern to suspension	Suspension and corrective action plan to revocation
(e) Section 480.046(1)(e), F.S. Advertising to induce or attempt to induce, or to engage or attempt to engage, the client in unlawful sexual misconduct as described in Section 480.0485, F.S.	Reprimand and $1,000 fine or suspension up to revocation	Revocation	Reprimand	Suspension and corrective action plan
(f) Section 480.046(1)(f), F.S. Aiding, assisting, procuring, or advising any unlicensed person to practice massage contrary to the provisions of Chapter 480 or to a rule of the department or the board.   Section 456.072(1)(j), F.S. Aiding, assisting, procuring, employing, or advising any unlicensed person or entity to practice a profession contrary to Chapters 456 and 480 or the rules of the department or the board.	Suspension	Suspension and $2,500 fine and to revocation and $2,500 fine	Suspension and corrective action plan	Revocation
(g) Section 480.046(1)(g), F.S. Making deceptive, untrue, or fraudulent representations in the practice of massage.   Section 456.072(1)(a), F.S. Making misleading, deceptive, or fraudulent representations in or related to the practice of the licensee’s profession.   Section 456.072(1)(m), F.S. 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.     If fraudulent representation found.	Reprimand and $500 to $1,000 fine                            Suspension and $10,000 fine	Suspension and $2,500 fine to revocation and $2,500 fine                         Revocation and $10,000 fine	Reprimand                               Suspension and corrective action plan	Suspension and corrective action plan                           Revocation
(h) Section 480.046(1)(h), F.S. Being unable to practice massage with reasonable skill and safety by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. Section 456.072(1)(z), F.S. Being unable to practice with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition.	Suspension until ability to practice with reasonable skill and safely shown to Board through evaluation by a licensed health care practitioner qualified by skill and training to address respondent’s mental or physical condition	Revocation	Suspension and corrective action plan	Revocation
(i) Section 480.046(1)(i), F.S. Gross or repeated malpractice or the failure to practice massage with that level of care, skill, and treatment which is recognized by a reasonably prudent massage therapist as being acceptable under similar conditions and circumstances.	Suspension, $1,000 fine, and continuing education	Revocation and $2,500 fine	Suspension and corrective action plan	Revocation
(j) Sections 480.046(1)(j), 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 knows or has reason to know that she or he is not competent to perform.	Reprimand, $1,000 fine, and continuing education	Suspension and $2,500 fine to revocation and $2,500 fine	Letter of Concern to Reprimand	Suspension and corrective action plan to revocation
(k) Sections 480.046(1)(k), 456.072(1)(p), F.S.  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.	Suspension and $1,000 to $2,500 fine, and continuing education	Revocation and $2,500 fine	Suspension and corrective action plan	Revocation
(l) Section 480.046(1)(l), F.S. Violating a lawful order of the board or department previously entered in a disciplinary hearing, or failing to comply with a lawfully issued subpoena of the department. Section 456.072(1)(q), F.S. Violating a lawful order of the department or the board, or failing to comply with a lawfully issued subpoena of the department.	$250 fine and suspension until compliant, and continuing education	$500 fine and suspension until compliant to revocation, and $500 fine	Suspension and corrective action plan	Suspension and corrective action plan to revocation
(m) Section 480.046(1)(m), F.S. Refusing to permit the department to inspect the business premises of the licensee during regular business hours. Section 456.072(1)(r), F.S. Improperly interfering with an investigation or inspection authorized by statute, or with any disciplinary proceeding.	$500 to $1,000 fine, suspension until compliant	Suspension until compliant and $500 fine to revocation and $500 fine	Suspension and corrective action plan	Suspension and corrective action plan to revocation
(n) Section 480.046(1)(n), F.S. Failing to keep the equipment and premises of the massage establishment in a clean and sanitary condition.	Reprimand, $250 to $1,000 fine, suspension until satisfactory re-inspection	Suspension until satisfactory re-inspection and $2,500 fine to revocation and $2,500 fine	Reprimand	Suspension and corrective action plan
(o) Section 480.046(1)(o), F.S. Practicing massage at a site, location, or place which is not duly licensed as a massage establishment, except that a massage therapist, as provided by rules adopted by the board, may provide massage services, excluding colonic irrigation, at the residence of a client, at the office of the client, at a sports event, at a convention, or at a trade show.	Reprimand, $250 to $750 fine, reprimand and continuing education	Suspension and $2,500 fine to revocation and $2,500 fine	Letter of concern to Reprimand	Suspension and corrective action plan
(p) Section 480.046(1)(p), F.S. Violating any provision of Chapter 480 or Chapter 456, F.S. or any rules adopted pursuant thereto. Section 456.072(1)(b), F.S. Intentionally violating any rule adopted by the board or the department, as appropriate. Section 456.072(1)(dd), F.S. Violating any provision of Chapter 480, the applicable practice act, or any rules adopted pursuant thereto.	Reprimand, $250 to $1,000 fine, and continuing education	Suspension and $1,000 to $2,500 fine to revocation and $2,500 fine	Suspension and corrective action plan	Suspension and corrective action plan to revocation
1. Section 480.0465, F.S. Each massage therapist or massage establishment licensed under the provisions of Chapter 480 shall include the number of the license in any advertisement of massage services appearing in a newspaper, airwave transmission, telephone directory, or other advertising medium.	Reprimand and $250 fine	Suspension until compliant and $1,500 fine	Letter of concern to reprimand	Suspension and corrective action plan
2. Section 480.0485, F.S. Sexual misconduct in the practice of massage therapy. Section 456.072(1)(v), F.S. Engaging or attempting to engage in sexual misconduct as defined and prohibited in Section 456.063(1), F.S., or Rule 64B7-26.010, F.A.C., Sexual Activity Prohibited.	$2,500 fine and revocation	n/a	Revocation	n/a
3. Section 456.036(1), F.S. Practicing with an inactive status license, a retired status license, a delinquent or suspended license.	Reprimand, $250 to $1,000 fine, and continuing education	Suspension until compliant and $2,500 fine to revocation and $2,500 fine	Letter of Concern	Suspension and corrective action plan
(q) Section 456.072(1)(g), F.S. Having been found liable in a civil proceeding for knowingly filing a false report or complaint with the department against another licensee.   If fraudulent representation is found.	Reprimand and $500 to $1,000 fine       $10,000 fine and revocation	$1,500 fine and suspension to revocation       $10,000 fine and revocation	Reprimand           Revocation	Suspension and corrective action plan       n/a
(r) Section 456.072(1)(i), F.S. Failing to report to the department any person who the licensee knows is in violation of Chapter 456 or 480, F.S.	Reprimand and $250 to $1,000 fine and suspension	Suspension and $1,500 fine to revocation and $1,500 fine	Reprimand	Suspension and corrective action plan
(s) Section 456.072(1)(k), F.S. Failing to perform any statutory or legal obligation placed upon a license.	Reprimand and $250.00 to $1,000 fine and continuing education	Suspension and $1,000 to $2,500 fine, and continuing education to revocation and $2,500 fine	Reprimand	Suspension and corrective action plan
(t) Section 456.072(1)(l), F.S. Making or filing a report which the licensee 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.   If fraudulent misrepresentation found.	Reprimand and $500 to $1,000 fine to probation and $1,000 fine         Reprimand and $10,000 fine	Suspension and $2,500 fine to revocation and $2,500 fine         $10,000 fine and revocation	Reprimand               Revocation	Suspension and corrective action plan           n/a
(u) Section 456.072(1)(n), F.S. Exercising influence on the patient or client for the purpose of financial gain of the licensee or a third party.	Suspension and $1,000 to $2,500 fine to revocation and $1,000 to $2,500 fine	Revocation and $2,500 fine	Suspension and corrective action plan	Revocation
(v) Section 456.072(1)(t), F.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. Any advertisement for health care services naming the practitioner must identify the type of license the practitioner holds.	Reprimand and $250 fine	$1,000 fine and reprimand	Letter of Concern to Reprimand	Suspension and corrective action plan
(w) Section 456.072(1)(x), F.S. 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.	Reprimand and $250 fine and continuing education	Suspension and $1,000 fine to revocation and $1,500 fine	Letter of Concern to Reprimand	Suspension and corrective action plan
(x) Section 456.072(1)(y), F.S. 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.	Suspension and $500 to $1,000 fine	Revocation and $1,500 fine	Suspension and corrective action plan	Revocation
(y) Section 456.072(1)(aa), F.S. 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 the drug.	Suspension until evaluation by a licensed health care practitioner qualified by skill and training to address respondent’s condition,  compliance with all recommendations to revocation	$500 fine and suspension until PRN evaluation, compliance with all recommendations to revocation	Suspension and corrective action plan	Suspension and corrective action plan to revocation
(z) Section 456.072(1)(bb), F.S. 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.	Reprimand and $500 fine, and continuing education	Revocation and $1,000 fine	Letter of Concern to reprimand	Revocation
(aa) Section 456.072(1)(cc), F.S. 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.	Reprimand and $1,000 fine to revocation and $1,000 fine	Revocation and $1,000 fine	Letter of Concern to Reprimand	Revocation
(bb) Section 456.072(1)(ee), F.S. 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)(ff), F.S. With respect to making a personal injury claim as required by Section 627.736, F.S., intentionally submitting a claim, statement, or bill for payment of services that were not rendered.	Revocation and $2,000 fine	n/a	Revocation	n/a
(cc) Section 456.072(1)(hh), F.S. Being terminated from an impaired practitioner program that is overseen by a consultant as described in Section 456.076, F.S. for failure to comply, without good cause, with the terms of the monitoring or participant contract entered into by the licensee, or for not successfully completing any drug treatment or alcohol treatment program.	Suspension until ability to practice with reasonable skill and safety shown to Board through  evaluation by a licensed health care practitioner qualified by skill and training to address respondent’s condition	Revocation	Suspension and corrective action plan	Revocation
(dd) Section 456.072(1)(ii), F.S. 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, related to the Medicaid program. Section 456.072(1)(ll), F.S.  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.	Revocation and $10,000 fine	n/a	Revocation	n/a
(ee) Section 456.072 (pp) 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 without personal knowledge of the person’s disability or disability-related need for the specific emotional support  animal.	Citation	Reprimand and $1,000 fine, continuing education, to suspension	Letter of concern	Reprimand to suspension and corrective action plan

 

(3) No change.

Rulemaking Authority 456.079(1), (3), 480.035(7) FS. Law Implemented 456.072(2), 456.079(1), (3), 480.041, 480.043, 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, 5-19-13, 12-2-14, 1-2-19, 10-8-20,_________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Board of Massage Therapy

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

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: April 8, 2021

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: May 13, 2021