DEPARTMENT OF HEALTH
Board of Medicine
RULE NO.:RULE TITLE
64B8-44.003 Disciplinary Guidelines
NOTICE OF CHANGE
Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., FS, published in Vol. 46, No. 224, of the November 17, 2020, issue of the Florida Administrative Register. The changes are in response to written comments submitted by the staff of the Joint Administrative Procedures Committee and discussion and subsequent vote by the board at a meeting held June 4, 2021. The changes are as follows:
Substantial reword of Rule 64B8-44.003 follows. See Florida Administartive Code for present text.
64B8-44.003 Disciplinary Guidelines.
(1) When the Board finds any person has committed any of the acts set forth in section 456.072(1) or Chapter 468, Part X, F.S., it shall issue a final order imposing appropriate penalties as recommended in the following disciplinary guidelines. The language identifying offenses below is descriptive only. The full language of each statutory provision cited must be consulted to determine the conduct included.
RECOMMENDED RANGE OF PENALTY
VIOLATION
FLORIDA LICENSES
TELEHEALTH REGISTRANTS
FIRST OFFENSE
ADDITIONAL OFFENSE
FIRST OFFENSE
ADDITIONAL OFFENSE
(a)Violating any provision of Chapter 468, part X, any board or department rule adopted pursuant thereto, or any lawful order of the board or department previously entered in a disciplinary hearing held pursuant to Chapter 468, part X, or failing to comply with a lawfully issued subpoena of the department. (Sections 468.518(1)(a),(n), 456.072(1)(b)(dd),(k),(q), F.S.)
$150 fine and /or continuing education to probation and /or $1,000 fine.
Probation and /or $200 fine to Revocation and $1,000 fine.
Suspension
and corrective action plan to Revocation.
Revocation.
(b) Being unable to engage in dietetics and nutrition practice or nutrition counseling 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. (Sections 468.518(1)(b), 456.072(1)(z), F.S.)
Suspension until such time as the licensee can provide proof of reasonable skill and safety to revocation.
Suspension until such time as the licensee can provide proof of reasonable skill and safety to revocation.
Suspension and corrective action plan to revocation.
Revocation.
(c) Attempting to procure or procuring a license to practice dietetics and nutrition or nutrition counseling by fraud, material misrepresentation of material fact, or by error of the department or the board. (Sections 468.518(1)(c), 456.072(1)(h), F.S.)
1. By error to the department or the board.
2. By fraud, or material misrepresentation of material fact.
Letter of concern and/or laws and rules continuing education.
$10,000 fine to probation or suspension and $10,000 fine.
$1,000 fine.
$10,000 fine to revocation and $10,000 fine.
Letter of concern to suspension and corrective action plan.
Suspension and a corrective action plan.
Suspension and corrective action plan to revocation.
Revocation.
(d) Having a license to practice dietetics and nutrition or nutrition counseling revoked, suspended, or otherwise acted against, including the denial of licensure by the licensing authority of another state, district, territory, or country. (Sections 468.518(1)(d), 456.072(1)(f), F.S.)
Reprimand, laws and rules continuing education to $1,000 fine, and suspension of license until unencumbered in other jurisdiction, laws and rules continuing education.
$1,000 fine, suspension and/or probation to revocation.
Reprimand to suspension and corrective action plan.
Suspension and corrective action plan to revocation.
(e) 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 dietetics and nutrition or nutrition counseling or the ability to practice dietetics and nutrition or nutrition counseling. (Sections 468.518(1)(e), 456.072(1)(c), F.S.)
$1,000 fine and probation to revocation and $1,000 fine.
$1,000 fine, and probation to revocation and $1,000 fine.
Suspension and corrective action plan to revocation.
Suspension and corrective action plan to revocation.
(f) Making or filing a report or record that the licensee knows to be false, willfully failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing, or inducing another person to impede or obstruct such filing. (Sections 468.518(1)(f), 456.072(1)(g), F.S.)
Letter of concern and/or $300 fine to probation and $1,500 fine.
One year probation and/or $1,500 fine to revocation and $10,000 fine.
Letter of concern to suspension and corrective action plan.
Suspension and corrective action plan to revocation.
(g) Advertising goods or services in a manner that is fraudulent, false, deceptive, or misleading in form or content, or employing a trick of scheme related to the profession. (Sections 468.518(1)(g), 456.072(1)(a),(m), F.S.)
1. If misleading or deceptive.
2. If fraudulent representation found.
Letter of concern and $300 fine to suspension and $1,500 fine.
$10,000 fine to $10,000 fine and revocation.
Suspension and $2,500 fine to revocation.
$10,000 fine and probation to $10,000 fine and revocation.
Reprimand to suspension and corrective action plan.
Suspension and corrective action plan to revocation.
Suspension and corrective action plan to revocation.
Revocation.
(h) Committing an act of fraud or deceit, or of negligence, incompetency, or misconduct in the practice of dietetics and nutrition or nutrition counseling. (Section 468.518(1)(h), F.S.)
1. If negligence, incompetency or misconduct.
2. If by fraud or deceit.
Letter of concern and $300 fine to suspension and $1,500 fine.
$10,000 fine to $10,000 fine and revocation.
Suspension and $2,500 fine to revocation.
$10,000 fine and probation to $10,000 fine and revocation.
Reprimand to suspension and corrective action plan.
Suspension and corrective action plan to revocation
Suspension and corrective action plan to revocation.
Revocation.
(i) Practicing with a revoked, suspended, inactive, or delinquent license. (Section 468.518(1)(i), F.S.)
$250 fine and continuing education to $1,000 fine and continuing education.
Probation, $2,500 fine to revocation.
Reprimand to suspension and corrective action plan.
Suspension and corrective action plan to revocation.
(j) Treating or undertaking to treat human ailments by means other than by dietetics and nutrition practice or nutrition counseling. (Section 468.518(1)(j), 456.072(1)(o), F.S.)
$250 fine and probation to $1,000 fine and probation and/or suspension.
$400 fine and probation to $2,500 fine and probation and/or suspension.
Reprimand to suspension and corrective action plan.
Suspension and corrective action plan to revocation.
(k) Failing to maintain acceptable standards of practice as set forth by the board and the council in rules adopted pursuant to this part. (Section 486.518(1)(k), F.S.)
$100 fine and probation to $1,000 fine and probation.
$350 fine and suspension to revocation.
Reprimand to suspension and corrective action plan.
Suspension and corrective action plan to revocation.
(l) Engaging directly or indirectly in the dividing, transferring, assigning, rebating, or refunding of fees received for professional services, or profiting by means of a credit or other valuable consideration, such as an unearned commission, discount, or gratuity, with any person referring a patient or with any relative or business associate of the referring person. (468.518(1)(l), F.S.)
$1,000 fine and probation to $2,500 fine and suspension.
$3,500 fine and suspension to revocation.
Suspension and corrective action plan.
Suspension and corrective action plan to revocation.
(m) Advertising, by or on behalf of a licensee under this part, any method of assessment or treatment which is experimental or without generally accepted scientific validation. (Section 468.518(1)(m), F.S.)
$500 fine and/or suspension to $1,000 fine and revocation.
$2,000 fine and suspension to $2,500 fine and revocation.
Reprimand to suspension and corrective action plan.
Suspension and corrective action plan to revocation.
(n) Failing to comply with the educational course requirements for human immunodeficiency virus and acquired immune deficiency syndrome, required by Section 456.003, F.S. or failing to comply with the educational course requirements for human trafficking as required by Section 456.0341, F.S. (Section 456.072(1)(e), F.S.)
Reprimand, $100 fine and proof of completion of CE to $500 fine and probation.
$1,000 fine and probation to $2,000 fine and probation.
Reprimand to suspension and corrective action plan.
Suspension and corrective action plan.
(o) Failure to keep written medical records (Rule 64B8-44.004, F.A.C.)
Reprimand and $100 fine to $500 fine and probation.
$500 fine and probation to $2,000 fine and suspension.
Reprimand to suspension and corrective action plan.
Suspension and corrective action plan.
(p) Except as provided in s. 465.016, failing to report to the department any person who the licensee knows is in violation of Chapter 456, and Chapter 468, Pat X, or the rules of the department or the board. (Section 456.072(1)(i))
Letter of concern to $1,000 fine and reprimand.
Reprimand, and $1,000 fine to $1,000 fine and suspension.
Letter of concern to suspension and corrective action plan.
Suspension and corrective action plan.
(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.)
Probation and continuing education to revocation.
Revocation.
Suspension and corrective action plan.
Revocation.
(r) 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)(p))
Letter of Concern to $500 fine, probation and continuing education.
Suspension and $1,500 fine to revocation and $1,500 fine.
Reprimand to suspension and corrective action plan.
Suspension and corrective action plan.
(s) Improperly interfering with an investigation or inspection authorized by statute, or with any disciplinary proceeding. (Section 456.072(1)(r), F.S.)
Reprimand and $250 fine to $500 fine and continuing education.
$500 fine, probation and continuing education to $2000 fine and suspension.
Letter of concern to suspension and corrective action plan.
Suspension and corrective action plan.
(t) 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. (Section 456.072(1)(t), F.S.)
Letter of Concern to $100 fine.
$100 fine to $500 fine.
Letter of Concern to reprimand.
Reprimand.
(u) Failing to comply with the requirements of ss. 381.026 and 381.0261 to provide patients with information about their patient rights and how to file a patient complaint. (Section 456.072(1)(u), F.S.)
Reprimand to $500 fine and reprimand and continuing education.
$500 fine and reprimand and continuing education to $1,000 fine and probation.
Reprimand to suspension and corrective action plan.
Suspension and corrective action plan.
(v) Engaging or attempting to engage in sexual misconduct as defined and prohibited in Sections 456.063. (Section 456.072(1)(v), F.S.)
$500 fine and probation to revocation.
Revocation.
Suspension and corrective action plan to revocation.
Revocation.
(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.)
Reprimand and $100 fine and continuing education to reprimand to $500 fine and continuing education.
Reprimand and $500 fine $1,000 fine and suspension.
Reprimand top suspension and corrective action plan.
Suspension and corrective action plan.
(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 s. 316.066, 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)(v), F.S.)
Letter of Concern to $500 fine and reprimand.
$500 fine and reprimand to suspension.
Reprimand to suspension and corrective action plan.
Suspension and corrective action plan.
(y) 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.)
Suspension until evaluation by a licensed health care practitioner qualified by skill and training to address respondent’s condition, compliance with all recommendation.
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.
Suspension and corrective action plan.
Suspension and corrective action plan to revocation.
(z) With respect to making a personal injury protection claim as required by s. 627.736, intentionally submitting a claim, statement, or bill that has been “upcoded” as defined in s. 627.732. Section 456.072(1)(ee), F.S.
$1,000 fine and probation to $2,500 fine and probation.
$5,000 fine and probation to revocation.
Suspension and corrective action plan.
Suspension and corrective action plan revocation.
(aa) With respect to making a personal injury protection claim as required by s. 627.736, intentionally submitting a claim, statement, or bill for payment of services that were not rendered. Section 456.072(1)(ff), F.S.
Reprimand and $1,000 fine to $2,500 fine and probation.
$5,000 fine and suspension to revocation.
Suspension and corrective action plan.
Suspension and corrective action plan to revocation.
(bb) 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, 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. Section 456.072(1)(hh), F.S.
Suspension until such time as licensee is re-admitted into a treatment or monitoring program.
Suspension until such time as licensee successfully completes a treatment or monitoring program.
Revocation.
(cc) 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)
Revocation and $10,000 fine.
Revocation.
Revocation.
(dd) 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.
$1,000 fine and probation to $2,500 fine and probation.
$2,500 fine and probation to $5,000 fine and probation.
Suspension and corrective action plan.
Suspension and corrective action plan.
(ee) Being terminated from the state Medicaid program pursuant to s. 409.913, 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.
$10,000 fine and revocation.
Revocation.
(ff) 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.
$10,000 fine and revocation.
Revocation.
(2) All guidelines allow for the imposition of continuing education without a finding of aggravating factor regardless of the penalty stated.
(3) Aggravating and Mitigating Circumstances. Based upon consideration of aggravating and mitigating factors present in an individual case, the Board may deviate from the penalties recommended below. The Board shall consider as aggravating or mitigating factors the following:
(a) Exposure of patients or public to injury or potential injury, physical or otherwise; none, slight, severe, or death,
(b) Legal status at the time of the offense; no restraints, or legal constraints,
(c) The number of counts or separate offenses established,
(d) The number of times the same offense or offenses have previously been committed by the licensee or applicant,
(e) The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice,
(f) Pecuniary benefit or self-gain inuring to the applicant or licensee,
(g) Any efforts at rehabilitation, attempts by the licensee to correct or to stop violations, or refusal by the licensee to correct or to stop violations.
(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.
Rulemaking Authority 456.072(1)(t), 456.079, 458.309, 468.507 FS. Law Implemented 456.072(1)(t), 456.079, 468.517, 468.518(2) FS. History–New 12-4-90, Formerly 21M-50.003, Amended 6-22-94, Formerly 61F6-50.003, 59R-44.003, Amended 3-16-98, 8-19-99, 9-28-00, 9-26-01, 2-13-03, 4-10-06, 1-8-07, 5-13-10, 7-13-16 _________.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Allen Hall, Executive Director, Dietetic and Nutrition Practices Council, Board of Medicine, 4052 Bald Cypress Way, Bin # C05, Tallahassee, Florida 32399-3255, or telephone (850)245-4444, or by electronic mail – Allen.Hall@flhealth.gov.
