The proposed rule amendments are intended for substantial rewrite of disciplinary guidelines.

 

DEPARTMENT OF HEALTH

Board of Medicine

RULE NO.:RULE TITLE:

64B8-55.001Disciplinary Guidelines

PURPOSE AND EFFECT: The proposed rule amendments are intended for substantial rewrite of disciplinary guidelines.

SUMMARY: Substantial rewrite of disciplinary 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 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: 456.072, 456.079, 478.52(4) FS.

LAW IMPLEMENTED: 456.072, 456.073, 456.079, 478.52(4) 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: Allen Hall, Executive Director, Board of Medicine Electrolysis Council, 4052 Bald Cypress Way, Bin # A04, Tallahassee, Florida 32399-3253.

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

Substantial rewording of Rule 64B8-55.001 follows.  See Florida Administrative Code for present text.

64B8-55.001 Disciplinary Guidelines.

(1) Purpose. Pursuant to Section 478.52(1), F.S., the Board provides within this rule disciplinary guidelines which shall be imposed upon applicants or licensees whom it regulates under Chapter 478, F.S., or a telehealth provider registered under section 456.47(4), F.S. The purpose of this rule is to notify applicants, licensees, and telehealth registrants of the ranges of penalties which will routinely be imposed unless the Board finds it necessary to deviate from the guidelines for the stated reasons given within this rule. Each range includes the lowest and highest penalty and all penalties falling between including appropriate continuing education. The range, in ascending order of severity is letter of concern, reprimand, suspension, then revocation. The purposes of the imposition of discipline are to punish the applicants, licensees, or telehealth registrants for violations and to deter them from future violations; to offer opportunities for rehabilitation, when appropriate; and to deter other applicants, licensees, or telehealth registrants from violations.

(2) Violations and Range of Penalties. In imposing discipline upon applicants, licensees, and telehealth registrants in proceedings pursuant to Sections 120.57(1) and 120.57(2), F.S., the Board shall act in accordance with the following disciplinary guidelines and shall impose a penalty as provided in Section 456.072(2), F.S., within the range corresponding to the violations set forth below. The identification of offenses are descriptive only; the full language of each statutory provision cited must be consulted in order to determine the conduct included.

 

RECOMMENDED RANGE OF PENALTY
VIOLATION	APPLICANTS AND LICENSEES		TELEHEALTH REGISTRANTS
	FIRST OFFENSE	ADDITIONAL OFFENSE	FIRST OFFENSE	ADDITIONAL OFFENSE
(a)Attempting to obtain a license by bribery, fraud, misrepresentation, or through error of the department or the council.  (Sections 456.072(1)(h), 478.52(1)(a), F.S.)             Obtaining or renewing a license through error of the department or council.       Obtaining or renewing a license by fraud.
	Revocation.	Revocation.	Revocation.	n/a
	Revocation and a $10,000 fine.	Revocation and a $10,000 fine.	Revocation.	n/a
(b) Action taken against license in any jurisdiction. (Sections 456.072(1)(f) and 478.52(1)(b), F.S.)	Discipline comparable to the minimum first offense which would be imposed if the substantive violation occurred in Florida to discipline comparable to the maximum first offense which be imposed if the substantive violation occurred in Florida.	Discipline comparable to the minimum second or subsequent offense which would be imposed if a second or higher substantive violation had occurred in Florida to Discipline comparable to the maximum second or subsequent offense which would be imposed if a second or higher substantive violation had occurred in Florida.	Discipline comparable to the minimum first offense which would be imposed if the substantive violation occurred in Florida to discipline comparable to the maximum first offense which be imposed if the substantive violation occurred in Florida.	Discipline comparable to the minimum second or subsequent offense which would be imposed if a second or higher substantive violation had occurred in Florida to Discipline comparable to the maximum second or subsequent offense which would be imposed if a second or higher substantive violation had occurred in Florida.
(c) 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 electrology. (Sections 456.072(1)(c) and 478.52(1)(c), F.S.)	Reprimand and $250 fine to revocation and $5,000 fine.	Probation and $350 fine to revocation and $5,000 fine.	Reprimand to revocation.	Suspension and a corrective action plan to revocation.
(d) Filing a false report or failing to file a report as required (Sections 456.072(1)(g) and (l), and 478.52(1)(d), F.S.)     If fraud found	Reprimand and $500 fine probation and $5,000 fine.	Probation and $1,000 fine to revocation and $5,000 fine.	Letter of concern to suspension to suspension and a corrective action plan.	Suspension and a corrective action plan to revocation.
	Revocation and $10,000 fine.	Revocation and $10,000 fine.	Revocation	Revocation
(e) False, deceptive or misleading advertising. (Sections 456.072(1)(m) and 478.52(1)(e), F.S.)	Letter of concern and $500 fine to suspension and $1,000 fine.	Suspension and $1,000 fine to suspension or and $2,500 fine.	Reprimand to suspension and corrective action plan.	Suspension and corrective action plan to revocation.
(f) Unprofessional conduct, failure to conform to acceptable standards. (Sections 478.52(1)(f), and 456.072(3)(b), F.S.)	Reprimand and $250 fine.to probation and $1,000 fine.	Probation and $1,000 fine to revocation and $5,000 fine.	Letter of concern to suspension.	Suspension and a corrective action plan to revocation.
(g) Possession, sale or distribution of illegal or controlled substance. (Section 478.52(1)(g), F.S.)	Probation and $1,000 fine to revocation and $5,000 fine.	Suspension and $2,000 fine to revocation and $5,000 fine.	Suspension to revocation.	Suspension and corrective action plan to revocation.
(h) Willful failure to report any known violation of Chapter 456 or 478, F.S. (Sections 456.072(1)(i) and 478.52(1)(h), F.S.)	Letter of Concern and $250 fine to probation and $1,000 fine.	Probation and $350 fine to suspension and a $5,000 fine.	Reprimand to suspension.	Suspension and a corrective action plan to revocation.
(i) Repeated or willful violation of disciplinary order. (Section 456.072(1)(q), and 478.52(1)(i), F.S.)	Suspension until in compliance with prior order and $500 fine to suspension and $2,500 fine followed by probation.	Suspension until in compliance with prior order and $1,000 fine to revocation and $2,500 fine.	Suspension to suspension and corrective action plan.	Suspension and a corrective action plan to revocation.
(j) Delivery of electrolysis services without an active license. (Section 478.52(1)(j), F.S.)	Reprimand and $250 fine to revocation and $5,000 fine.	Probation and $350 fine to revocation and a $5,000 fine.	Suspension and a corrective action plan to revocation.	One (1) year suspension and a corrective action plan to revocation.
(k) Employing or assisting an unlicensed person to practice electrology. (Sections 456.072(1)(j), and 478.52(1)(k), F.S.)	Reprimand and $250 fine to probation and $1,000 fine.	Probation and $1,500 fine to suspension and a $5,000 fine.	Suspension to suspension and a corrective action plan.	suspension and a corrective action plan to revocation.
(l)  Failure to perform/comply with legal obligation. (Sections 456.072(1)(k) and 478.52(1)(l), F.S.)	Reprimand and $250 fine to probation and $1,500 fine.	Probation and $1,500 fine to suspension and a $5,000 fine.	Reprimand to suspension and a corrective action plan.	Suspension and a corrective action plan to revocation.
(m) Accepting and performing responsibilities for which licensee knows, or has reason to know, he or she is not competent to perform. (Sections 457.072(1)(o) and 478.52(1)(m), F.S.)	Probation and $500 fine to probation and  $2,500 fine.	Probation and $1,000 fine to revocation and $5,000 fine.	Suspension to suspension and a corrective action plan.	Suspension and a corrective action plan to revocation.
(n) Delegating professional responsibilities to unqualified person. (Sections 456.072(1)(p) and 478.52(1)(n), F.S.)	Probation and $250 fine to two (2) years suspension or denial and $5,000 fine.	Six (6) months suspension followed by probation and $1,000 fine to revocation and $5,000 fine.	Suspension and corrective action plan to two (2) years suspension.	Six (6) months suspension followed by a corrective action plan to revocation.
(o) Malpractice. (Section 478.52(1)(o), F.S.)	Probation and $500 fine to suspension and $7,500 fine.	Suspension followed by probation and $10000 fine to revocation.	Suspension to suspension and corrective action plan.	Suspension and corrective action plan to revocation.
(p) Judicially determined mental incompetency. (Section 478.52(1)(p), F.S.)	Probation to indefinite suspension until licensee is able to demonstrate ability to practice with reasonable skill and safety followed by probation.	Indefinite suspension until licensee is able to demonstrate ability to practice with reasonable skill and safety followed by probation to suspension for a minimum of five (5) years or until licensee is able to demonstrate ability to practice with reasonable skill and safety followed by probation.	Indefinite suspension with corrective action plan and until licensee is able to demonstrate ability to practice with reasonable skill and safety to suspension for a minimum of one (1) year and until licensee is able to demonstrate ability to practice with reasonable skill and safety.	Indefinite suspension with a corrective action plan, to suspension for a minimum of five (5) years and until licensee is able to demonstrate ability to practice with reasonable skill and safety.
(q) Practicing under a name other than that of licensee. (Section 478.52(1)(q), F.S.)	Letter of concern and $250 fine to probation and $1,000 fine.	Probation and $1,000 fine to suspension and $5,000 fine.	Letter of concern to suspension.	Suspension and corrective action plan to revocation.
(r) Inability to practice with reasonable skill and safety because of mental or physical condition or illness or use of alcohol or controlled substances or any other substance which impairs one’s ability to practice. (Sections 478.52(1)(r) and 456.072(1)(z), F.S.)	Probation to indefinite suspension until licensee is able to demonstrate ability to practice with reasonable skill and safety followed by probation.	Indefinite suspension until licensee is able to demonstrate ability to practice with reasonable skill and safety followed by probation to suspension for a minimum of five (5) years or until licensee is able to demonstrate ability to practice with reasonable skill and safety followed by probation.	Indefinite suspension with corrective action plan and until licensee is able to demonstrate ability to practice with reasonable skill and safety to suspension for a minimum of one (1) year and until licensee is able to demonstrate ability to practice with reasonable skill and safety.	Indefinite suspension with a corrective action plan, to suspension for a minimum of five (5) years and until licensee is able to demonstrate ability to practice with reasonable skill and safety.
(s) Disclosing identity of or information about a patient. (Section 478.52(1)(s), F.S.)	Probation and $250 fine to suspension and $1,000 fine.	Suspension and $1,000 fine to revocation and $5,000 fine.	Suspension to suspension and corrective action plan.	Suspension and corrective action plan to revocation.
(t) Practicing permanent hair removal except as described in Section 478.42(5), F.S. (Section 478.52(1)(t), F.S.)	Probation and $250 fine to probation and  $5,000 fine.	Suspension followed by probation and $1,000 fine to revocation and a $5,000 fine.	Suspension to suspension and corrective action plan.	Suspension and corrective action plan to revocation.
(u) Operating an unlicensed facility. (Section 478.52(1)(u), F.S.)	Suspension until compliance and $250 fine to suspension until  compliance and $2,500 fine.	Suspension until compliance and $500 fine to suspension until compliance followed by probation and  $2,500 fine.	Suspension to suspension and corrective action plan.	Suspension to suspension and corrective action plan to revocation.
(v) Violating any provision of Sections 456, 478, F.S. or any rule adopted pursuant thereto. (Section 456.072(1)(b),(dd), F.S.)	Letter of concern and $200 fine to probation and $1,000 fine.	Probation and $500 fine to revocation and $7,500 fine.	Letter of concer to suspension and corrective action plan.	Suspension and corrective action plan to revocation.
(w)  Using a Class II or a Class IV laser device or product, as defined by federal regulations, without having complied with the rules adopted under s. 501.122 (2) governing the registration of the devices. (Section 456.072(1)(d), F.S.)	Probation and $1,000 fine to suspension and $2,500 fine.	Suspenstion and $3,000 fine to revocation.	n/a	n/a
(x) Failing to comply with the education course requirements for acquired immune deficiency syndrome and domestic violence. (Section 456.072(1)(e),(s), F.S.)	Letter of concern and $250 fine to reprimand and $500 fine	Reprimand and $500 fine to suspension and $1,000 fine.	n/a	n/a
(y)  Making deceptive, untrue, or fraudulent representations in or related to the practice of electrolysis, or employing a trick or scheme in or related the practice of electrolysis (Section 456.072(1)(m), F.S.)             If fraud found	Restitution and from probation and $1,000 fine to suspension and $2,000 fine.	Restitution and from suspension and $2,000 fine to revocation and $10,000 fine.	Suspension to suspension and corrective action plan.	Suspension and corrective action plan to revocation.
	Revocation and $10,000 fine.	Revocation and $10,000 fine.	Revocation.	Revocation.
(z) Exercising influence in the patient or client for the purpose of financial gain or the licensee or a third party.  (Section 456.072(1)(n), F.S.)	Restitution and from probation and $1,000 fine to suspension and $2,000 fine.	Restitution and from suspension and $2,000 fine to revocation and $10,000 fine.	Suspension to suspension and corrective action plan.	Suspension and corrective action plan to revocation.
(aa) Failing to comply with the lawfully issued subpoena of the department.  (Section 456.072(1)(q), F.S.)	Reprimand and $1,000 fine to probation and $2,000 fine.	Probation and $2,000 fine to suspension and $5,000 fine.	Suspension to suspension and corrective action plan.	Suspension and corrective action plan to revocation.
(bb) Improperly interfering with an investigation or inspection authorized by statute, or with any disciplinary proceeding. (Section 456.072(1)(r), F.S.)	Reprimand and $1,000 fine to probation and $2,000 fine.	Probation and $2,000 fine to suspension and $5,000 fine.	Suspension to suspension and corrective action plan.	Suspension and corrective action plan to revocation.
(cc) Failing to identify to patient electrolysis licensure (Section 456.072(1)(t), F.S.)	Letter of concern and $250 fine to probation and $500 fine.	Probation and $500 fine to suspension and $1,000 fine.	Reprimand to suspension.	Suspension to suspension and corrective action plan.
(dd) Sexual Misconduct. (Sections 456.063, F.S., 456.072(1)(v), F.S.)	Probation and $2,500 fine to revocation and $7,500 fine.	Suspension and $7,500 fine to revocation and $10,000 fine.	Suspension to suspension and corrective action plan.	Suspension and corrective action plan to revocation.
(ee) Failing to report to the council in writing within 30 days after the licensee has been convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction. (Section 456.072(1)(x), F.S.)	Reprimand and $250 fine to probation and $1,000 fine.	Probation and $1,000 fine to suspension.	Reprimand to suspension.	Suspension to suspension and corrective action plan.
(ff) Testing positive for any drug, as defined in s. 112.0455 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. (Section 456.072(1)(aa), F.S.)	Probation to indefinite suspension until licensee is able to demonstrate ability to practice with reasonable skill and safety followed by probation.	Indefinite suspension until licensee is able to demonstrate ability to practice with reasonable skill and safety followed by probation and a $500.00 fine to suspension for a minimum of five (5) years or until licensee is able to demonstrate ability to practice with reasonable skill and safety followed by probation and a $1,500.00 fine.	Suspension to suspension and corrective action plan.	Suspension and corrective action plan to revocation.
(gg) Performing or attempting to perform electrolysis on the wrong patient, a wrong-site procedure, a wrong procedure, 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.)	Probation and $1,000 fine to suspension and $2,000 fine.	Suspension and $2,000 fine to revocation and $10,000 fine.	Suspension to suspension and corrective action plan.	Suspension and corrective action plan to revocation.
(hh) Being terminated from an impaired practitioner program that is overseen by a consultant as described in s. 456.076, for failure to comply, without good cause, the terms of the monitoring or participant contract enter into by the licensee, or for not successfully completing any drug treatment or alcohol treatment program. (Section 456.072(1)(hh), F.S.)	Suspension until licensee is able to demonstrates compliance with all the terms of the monitioring contract and is able to demonstrate to the Board the ability to practice with reasonable skill and safety followed by a term of probation and a fine of $1,000 to revocation.	Suspension until licensee is able to demonstrates compliance with all the terms of the monitioring contract and is able to demonstrate to the Board the ability to practice with reasonable skill and safety followed by a term of probation and a fine of $5,000 to revocation.	Suspension and corrective action plan to revocation.	Suspension and corrective action plan to revocation.
(ii) 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.)	Revocation and $10,000 fine	Revocation and a $10,000.00 fine.	Revocation.	Revocation.
(jj) Failure to comply with the parental consent requirements of Section 1014.06, F.S. (Section 456.072(1)(rr), F.S.)	Letter of concern and $200 fine to probation and $1,000 fine.	Probation and $2,000 fine to Suspension and $5,000 fine.	Letter of concern to suspension.	Suspension to Suspension and corrective action plan.
(kk) Being convicted or found guilty of, entering a plea of guilty or nolo contendere to, regardless of adjudication, or committing or attempting, soliciting, or conspiring to commit and act that would constitute a violation of any of the offenses listed in Section 456.074(5) or similar offense in another jurisdiction.  (Section 456.072(1)(ss), F.S.)	Revocation and administrative fine of $500.00 to $1,000.00.	Revocation and administrative fine of $1,000.00 to $5,000.00.	Revocation.	Revocation.
(ll) Failure to notify council of an adverse action taken against license. (Section 456.47(4)(i)1., F.S.)	n/a	n/a	Letter of concern to suspension and a corrective action plan.	Suspension and corrective action plan to revocation.

 

(3) Aggravating and Mitigating Circumstances. Based upon consideration of aggravating and mitigating factors present in an individual case, the Council may deviate from the penalties recommended above. The Council shall consider as aggravating or mitigating factors the following:

(a) Exposure of patient or public to injury or potential injury, physical, or otherwise: none, slight, severe, or death;

(b) Legal status of licensee at the time of the offense;

(c) The number of counts or separate offenses established;

(d) The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice;

(e) Pecuniary benefit or self-gain inuring to the licensee.

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

(5) Other Action. The provisions of this rule are not intended to and shall not be construed to limit the ability of the Council to pursue or recommend that the Department pursue collateral, civil, or criminal actions when appropriate.

Rulemaking Authority 456.072, 456.079, 456.47(7), 478.52(4) FS. Law Implemented 456.072, 456.073, 456.079, 456.47(4), 478.52(4) FS. History–New 11-16-93, Formerly 61F6-80.001, Amended 1-2-95, Formerly 59R-55.001, Amended 2-9-98, 10-12-98, 3-1-00, 9-28-00, 5-30-01, 8-8-01, 10-8-02, 7-8-03, 7-18-06, 2-22-17,                          .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Board of Medicine Electrolysis Council

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Board of Medicine Electrolysis Council

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: April 8, 2022

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: April 23, 2021