The Board proposes the rule amendment to clarify the disciplinary guidelines.

 

DEPARTMENT OF HEALTH

Board of Acupuncture

RULE NO.: RULE TITLE:

64B1-9.001 Disciplinary Guidelines

PURPOSE AND EFFECT: The Board proposes the rule amendment to clarify the disciplinary guidelines.

SUMMARY: Substantial rewrite of the 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: 463.005(1), 463.005(1)(a) FS.

LAW IMPLEMENTED: 463.001, 463.011 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, JD, Executive Director, Board of Acupuncture, 4052 Bald Cypress Way, Bin # C06, Tallahassee, Florida 32399-3257.

 

THE FULL TEXT OF THE PROPOSED RULE IS:

Substantial rewording of Rule 64B1-9.001 follows.  See Florida Administrative Code for present text. 

64B1-9.001 Disciplinary Guidelines.

(1) When the Board finds any person has committed any of the acts set forth in Section 456.072(1) or 457.109(1), F.S., it shall issue a final order imposing appropriate penalties as recommended in the following disciplinary guidelines.

(a) Attempting to obtain, obtaining, or renewing a license to practice acupuncture by: bribery, or fraudulent misrepresentations, or through an error of the Department or Board.

(Sections 457.109(1)(a), 456.072(1)(h), F.S.)

1 . Error of the Department or Board

	MINIMUM	MAXIMUM
FIRST OFFENSE	letter of concern, or laws and rules continuing education	$1,000 fine
SUBSEQUENT OFFENSES	laws and rules continuing education	$1,000 fine

2. Bribery or fraudulent misrepresentation

	MINIMUM	MAXIMUM
FIRST OFFENSE	$10,000 fine	revocation
SUBSEQUENT OFFENSES	$10,000 fine	revocation

  (b) Having a license to practice acupuncture revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of another state, territory, or country.

  (Sections 457.109(b), 456.072(1)(f), F.S.)

	MINIMUM	MAXIMUN
FIRST OFFENSE	letter of concern	revocation
SUBSEQUENT OFFENSES	$500 fine	revocation

(c) Being convicted or found guilty of, or entering a plea of nolo contendre to, regardless of adjudication, of a crime in any jurisdiction which relates to the practice of acupuncture or to the ability to practice acupuncture.

  (Sections 457.109(1)(c), 456.072(1)(c), F.S.)

	MINIMUM	MAXIMUN
FIRST OFFENSE	letter of concern	$10,000 fine or revocation
SUBSEQUENT OFFENSES	$1,000 fine	suspension or revocation

(d) False, deceptive, or misleading advertising or advertising which claims that acupuncture is useful in curing any disease.

  (Section 457.109(1)(d), F.S.)

	MINIMUM	MAXIMUN
FIRST OFFENSE	letter of concern	$1,000 fine
SUBSEQUENT OFFENSES	$1,000 fine	suspension or revocation

(e) Advertising, practicing, or attempting to practice under a name other than one’s own.

  (Section 457.109(1)(e), F.S.)

	MINIMUM	MAXIMUN
FIRST OFFENSE	letter of concern	$1,000 fine
SUBSEQUENT OFFENSES	$1,000 fine	suspension or revocation

(f) Failing to report to the Department any person who the licensee knows is in violation of this chapter or of the rules of the Department or Board. 

  (Sections 457.109(1)(f), 456.072(1)(i), F.S.)

	MINIMUM	MAXIMUN
FIRST OFFENSE	letter of concern	$500 fine
SUBSEQUENT OFFENSES	$500 fine	suspension or revocation

(g) Aiding, assisting, procuring, employing, or advising any unlicensed person to practice acupuncture contrary to Chapter 457 or 456, F.S., or to a rule of the Department or Board.

  (Sections 457.109(1)(g), 456.072(1)(j), F.S.

	MINIMUM	MAXIMUN
FIRST OFFENSE	$500 fine and continuing education	$5,000 fine and or suspension
SUBSEQUENT OFFENSES	$500 fine	suspension or revocation

(h) Failing to perform any statutory or legal obligation placed upon a licensed acupuncturist.

  (Sections 457.109(1)(h), 456.072(1)(k), F.S.)

	MINIMUM	MAXIMUN
FIRST OFFENSE	letter of concern and $500 fine	suspension or revocation
SUBSEQUENT OFFENSES	$500 fine	suspension or revocation

(i) Making or filing a report, signed in the capacity of a licensed acupuncturist, which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so.

  (Sections 457.109(1)(1), 456.072(1)(I), F.S.)

	MINIMUM	MAXIMUN
FIRST OFFENSE	letter of concern and $500 fine	$5,000 and or suspension
SUBSEQUENT OFFENSES	$5,000 fine and continuing education	suspension or revocation

(j) Exercising influence within a patient-acupuncturist relationship for purposes of engaging a patient in sexual activity, or engaging or attempting to engage a patient in verbal or physical sexual activity.

  (Sections 457.109(1)(j), 456.072(1)(v), F.S.)

	MINIMUM	MAXIMUN
FIRST OFFENSE	$500 fine	$10,000 fine, suspension and or revocation
SUBSEQUENT OFFENSES	$5,000 fine	revocation

(k) Making misleading, deceptive, untrue, or fraudulent representations in or related to the practice of acupuncture or employing a trick or scheme in the practice of acupuncture when such scheme or trick fails to conform to the generally prevailing standards of treatment in the community.

  (Section 457.109(1)(k), F.S.)

	MINIMUM	MAXIMUN
FIRST OFFENSE	$10,000 fine	$10,000 fine and revocation
SUBSEQUENT OFFENSES	$10,000 fine	$10,000 fine and revocation

(l) Soliciting patients, either personally or through an agent, through the use of fraud, intimidation, undue influence, or a form of overreaching or vexatious conduct.

  (Sections 457.109(1)(l), 456.072(1)(y), F.S.) 

	MINIMUM	MAXIMUM
FIRST OFFENSE	$10,000 fine	$10,000 fine, suspension and or revocation
SUBSEQUENT OFFENSES	$10,000 fine	$10,000 fine, suspension and or revocation

(m) Failing to keep written medical records which are consistent with the standard of care in acupuncture.

  (Section 457.109(1)(m), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	letter of concern and continuing education in documentation	$1,000 fine
SUBSEQUENT OFFENSES	$1,000 fine	probation and or suspension

(n) Exercising influence on the patient to exploit the patient for the financial gain of the licensee or of a third party.

  (Sections 457.109(1)(n), 456.072(1)(n), F.S.

	MINIMUM	MAXIMUM
FIRST OFFENSE	$1,000 fine	$10,000 fine, suspension and or revocation
SUBSEQUENT OFFENSES	$2,000 fine	revocation

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

  (Sections 457.109(1)(o), 456.072(1)(z), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	suspension until such time as the licensee can provide Board’s satisfaction to demonstrate ability to practice with reasonable skill and safety	revocation
SUBSEQUENT OFFENSES	suspension until such time as the licensee can provide Board’s satisfaction to demonstrate ability to practice with reasonable skill and safety	revocation

(p) Gross or repeated malpractice or the failure to practice acupuncture with that level of care, skill, and treatment which is recognized by a reasonably prudent, similar acupuncturist as being acceptable under similar conditions and circumstances.

  (Section 457.109(1)(p), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	letter of concern and continuing education	$1,000 fine, suspension and continuing education
SUBSEQUENT OFFENSES	probation	revocation

(q) 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 he or she is not competent to perform.

  (Sections 457.109(1)(q), 456.072(1)(o), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	letter of concern and continuing education	$1,000 fine, suspension and continuing education
SUBSEQUENT OFFENSES	probation	revocation

(r) Delegating or contracting for professional responsibilities by a person when the licensee delegating or contracting for such responsibilities knows or has reason to know that such person is not qualified by training, experience, or licensure to perform them.

  (Sections 457.109(1)(r), 456.072(1)(q), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	letter of concern and continuing education	$1,000 fine, suspension and CE
SUBSEQUENT OFFENSES	probation	revocation

(s) Violating any provision of Chapter 457 or 456, F.S., a rule of the Board or Department, or a lawful order of the Board previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department.

  (Sections 457.109(1)(s), 456.072(1)(v), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	letter of concern and $500 fine	suspension and or revocation
SUBSEQUENT OFFENSES	$500 fine	suspension and or revocation

(t) Conspiring with another to commit an act, or committing an act, which would tend to coerce, intimidate, or preclude another licensee from lawfully advertising his or her services.

  (Section 457.109(1)(t), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	letter of concern	$1,000 fine
SUBSEQUENT OFFENSES	$1,000 fine	suspension or revocation

(u) Fraud or deceit or gross negligence, incompetence, or misconduct in the operation of a course of study.

  (Section 457.109(1)(u), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$2,000 fine	$10,000 fine and revocation
SUBSEQUENT OFFENSES	$2,000 fine	$10,000 fine and revocation

(v) Failing to comply with state, county, or municipal regulations or reporting requirements, relating to public health and the control of contagious and infectious diseases.

  (Section 457.109(1)(v), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$500 fine and continuing education	$1,000 and continuing education
SUBSEQUENT OFFENSES	$1,000 and continuing education	$5,000 and continuing education

(w) Failing to comply with any rule of the Board relating to health and safety, including, but not limited to, the sterilization of needles and equipment and the disposal of potentially infectious materials.

  (Sections 457.072(1)(w), F.S.), 456.072(1)(b), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$500 fine and continuing education	$1,000 and continuing education
SUBSEQUENT OFFENSES	$1,000 and continuing education	$5,000 and continuing education

(x) Failing to comply with continuing education requirements, including requirements for HIV/AIDS education.

  (Sections 457.109(1)(x), 456.072(1)(b)(e), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	suspension until continuing education completed	$1,000 and suspension until continuing education completed
SUBSEQUENT OFFENSES	suspension until continuing education completed	revocation

(y) 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	$500 fine	suspension or revocation
SUBSEQUENT OFFENSES	revocation	revocation

(z) 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	letter of concern	$1,000 fine
SUBSEQUENT OFFENSES	$2,000 fine	revocation

(aa) Failing to report to the Board in writing with 30 days after the licensee has been convicted or found guilty of, or entered a pleas of nolo contendere to, regardless of adjudication, a crime in any jurisdiction.

  (Section 456.072(1)(x), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	letter of concern	$2,000 fine and CE’s
SUBSEQUENT OFFENSES	$500 fine	$2,000 fine and CE

(bb) Using information about people involved in a motor vehicle accident 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 solicitation of the people involved in such accidents.

  (Section 456.072(1)(y), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$500 fine	suspension
SUBSEQUENT OFFENSES	$1,000 fine	revocation

(cc) Practicing acupuncture injection therapy without first providing notice to the Board of intent to practice acupuncture injection therapy and proof of successful completion of the required course of study. For the purpose of this rule the required course of study for the practice of acupuncture injection therapy shall not be a home study course and the required course shall at a minimum require 60 hours of training in the following areas:

1. History and development of acupuncture injection therapy;

2. Differential diagnosis;

3. Definitions, concepts, and pathophysiology;

4. The nature, function, channels entered, and contraindications of herbal, homeopathic, and nutritional injectables;

5. Diseases amenable to treatment with acupuncture injection therapy and the injectables appropriate to treat them;

6. Identification of appropriate points for treatment, including palpatory diagnosis;

7. A review of anatomy and referral zones;

8. Universal precautions including management of blood borne pathogens and biohazardous waste;

9. Procedures for injections, including preparing the injectables, contraindications and precautions;

10. 10 hours of clinical practice on a patient or patients; and

11. Administration techniques and equipment needed.

  (Section 457.109(1)(w),(x), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$1,000 fine	suspension or revocation
SUBSEQUENT OFFENSES	$1,000 fine	revocation

(dd)  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	$10,000 fine	revocation
SUBSEQUENT OFFENSES	$10,000 fine	revocation

(ee)  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. 

  (Section 456.072(1)(jj), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	suspension until complied	revocation
SUBSEQUENT OFFENSES	suspension until complied	revocation

(ff)  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.

  (Section 456.072(1)(kk), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	revocation	revocation

(gg)  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 related to health care fraud. Section 456.072(1)(ll), F.S. 

  (Section 456.072(1)(ll), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$1,000 fine	$10,000 fine and/or suspension or revocation
SUBSEQUENT OFFENSES	$3,000 fine	revocation

(hh) Willfully failing to comply with s. 627.64194 or s. 641.513 with such frequency as to indicate a general business practice. Section 456.072(1)(oo). The usual recommended penalty shall be Probation and a fine of $1,000 up to Revocation and a fine of $10,000. 

  (Section 456.072(1)(oo), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	letter of concern	$4,000.00 fine
SUBSEQUENT OFFENSES	$1,000 fine	$10,000 fine and revocation

(ii)  Failing to comply with, failing to successfully complete, or being terminated from an imparied practitioner treatment program.

  (Section 456.072(1)(hh), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	suspension	revocation

(2) Based upon consideration of the following factors, the Board may impose disciplinary action other than those penalties recommended above:

(a) The danger to the public;

(b) The number of repetitions of offenses, other than an adjudicated offense for which the licensee is presently being penalized;

(c) The length of time since date of violation;

(d) The number of complaints filed against the licensee;

(e) The length of time the licensee has practiced acupuncture;

(f) The actual damage, physical or otherwise, to a patient;

(g) The deterrent effect of the penalty imposed;

(h) The effect of the penalty upon the licensee’s livelihood;

(i) Any efforts for rehabilitation;

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

(k) Attempts by the licensee to correct or stop a violation or refusal of a licensee to correct or stop a violation;

(l) Any action relating to discipline or denial of a certificate or license in another state including, findings of guilt or innocence, standards applied, penalties imposed and penalties served;

(m) Any other mitigating circumstances.

(3) Violations and Range of Penalties. In imposing discipline upon applicants and licensees, in proceedings pursuant to Sections 120.57(1) and (2), F.S., the Board shall act in accordance with the disciplinary guidelines and shall impose a penalty within the range corresponding to the violations.  Any of the above penalties may may include continuing education.  For applicants, any and all offenses listed herein are sufficient for refusal to certify an application for licensure. In addition to the penalty imposed, the Board shall recover the costs of investigation and prosecution of the case. Additionally, if the Board makes a finding of pecuniary benefit or self-gain related to the violation, then the Board shall require refunds of fees billed and collected from the patient or a third party on behalf of the patient.

(4) The provisions of subsections (1) through (4) above shall not be construed as to prohibit civil action or criminal prosecution as provided in Section 457.116 or 456.072, F.S., and the provision of subsections (1) through (4) above shall not be construed so as to limit the ability of the Board to enter into binding stipulations with accused parties as per Section 120.57(4), F.S.

Rulemaking Authority 456.079(1), 457.104 FS. Law Implemented 456.072, 456.079, 457.109 FS. History–New 12-8-86, Amended 8-6-89, Formerly 21AA-9.001, 61F1-9.001, Amended 11-21-95, Formerly 59M-9.001, Amended 8-3-00, 5-20-02, 5-24-04, 1-26-06, 5-2-12, 3-01-2017,            .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Board of Acupuncture

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

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: March 10, 2017

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: May 31, 2017