The Board proposes the rule amendments to clarify language, to update existing penalties, and to set forth additional violations and appropriate penalties.

 

DEPARTMENT OF HEALTH
Board of Speech-Language Pathology and Audiology

RULE NO.: RULE TITLE:
64B20-7.001: Disciplinary Guidelines
PURPOSE AND EFFECT: The Board proposes the rule amendments to clarify language, to update existing penalties, and to set forth additional violations and appropriate penalties.
SUMMARY: The rule amendment will clarify language, to update existing penalties, and to set forth additional violations and appropriate penalties.
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: 456.078, 468.1135(4) FS.
LAW IMPLEMENTED: 456.063, 456.072, 456.076, 456.078, 468.1295, 468.1296 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Anthony Jusevitch, Executive Director, Board of Speech Language Pathology and Audiology, 4052 Bald Cypress Way, Bin C06, Tallahassee, Florida 32399-3256

THE FULL TEXT OF THE PROPOSED RULE IS:

64B20-7.001 Disciplinary Guidelines.

(1) Purpose. The Legislature created the Board to assure protection of the public from persons who do not meet minimum requirements for safe practice or who pose a danger to the public. Pursuant to Section 456.079, F.S., the Board provides within this rule disciplinary guidelines which shall be imposed upon applicants or licensees whom it regulates under Chapter 468, Part I, F.S. The purpose of this rule is to notify applicants and licensees 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. The ranges of penalties provided below are based upon a single count violation of each provision listed; multiple counts of the violated provisions or a combination of the violations may result in a higher penalty than that for a single, isolated violation. Each range includes the lowest and highest penalty and all penalties falling between. The purposes of the imposition of discipline are to punish the applicants or licensees for violations and to deter them from future violations; to offer opportunities for rehabilitation, when appropriate; and to deter other applicants or licensees from violations.

(2) The range of penalties including any and all in Section 456.072(2), F.S., is:

(a) Denial of an application for licensure with conditions to be met prior to any re-application.

(b) Revocation or Permanent Revocation, with no or limited ability to re-apply or suspension of a license.

(c) Imposition of an administrative fine not to exceed $10,000 for each count or separate offense and costs of investigation and prosecution.

(d) Issuance of a Letter of concern, remedial education, and/or refund of fees billed.

(e) Placement of the licensee on probation for a period of time and subject to such conditions as the Board may specify to assure protection of the public, including requiring the speech-language pathologist or audiologist to attend continuing education courses or to work under the supervision of another licensed speech-language pathologist or audiologist.

(f) Restriction of the authorized scope of practice.

(3) Any individual who had their license revoked by this Board, and has complied with all of the disciplinary terms and conditions set forth in the final order, shall apply for initial license by satisfying the requirements as specified in Section 468.1185, F.S.

(2)(4) 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 following disciplinary guidelines and shall impose a penalty within the range corresponding to the violations set forth below. The verbal identification of offenses is descriptive only; the full language of each statutory provision cited must be consulted in order to determine the conduct included. 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.

VIOLATIONS	RECOMMENDED PENALTIES
	First Offense		Second Offense		Third Offense
(a) Procuring or attempting to procure, or renew a license by misrepresentation, bribery, fraud or through an error of the Department or the Board. (468.1295(1)(a), F.S.); (456.072(1)(h), F.S.)	(a) From suspension to revocation or denial of licensure of the license and an administrative fine of $10,000.00.   If unintentional then suspension or revocation, or granting licensure with probation to suspension or denial of licensure, and administrative fine of up to $10,000.00.		(a) From suspension to revocation or denial of licensure of the license and an administrative fine of $10,000.00.   If unintentional then suspension, or revocation or granting licensure with probation to suspension or denial of licensure, or revocation and administrative fine of up to $10,000.00.		(a) From Rrevocation, or denial of licensure, without the ability to reapply, and an administrative fine of $10,000.00.     If unintentional then suspension or revocation and administrative fine of up to $10,000.00.
(b) Action taken against license by another jurisdiction. (468.1295(1)(b), F.S.); (456.072(1)(f), F.S.)	(b) Imposition of discipline which would have been if the substantive violation occurred in Florida and an administrative fine ranging from $5,000.00 to $10,000.00 or for the applicant, from granting licensure with probation or denial of licensure, and an administrative fine ranging from $5,000.00 to $10,000.00. up to suspension/ denial until the license is unencumbered in the jurisdiction in which the disciplinary action was originally taken and a $10,000.00 administrative fine.		(b) Imposition of discipline which would have been if the substantive violation occurred in Florida and a $10,000.00 administrative fine or for the applicant, from granting licensure with probation or denial of licensure, and a $10,000.00 administrative fine. up to revocation until the license is unencumbered in the jurisdiction in which the disciplinary action was originally taken and a $10,000.00 administrative fine.		(b) Revocation and a $10,000.00 administrative fine.
(c) Guilty of a crime relating directly related to the ability to practice speech pathology or audiology. (468.1295(1)(c), F.S.); (456.072(1)(c)(l), F.S.)	(c) From 6 months probation with conditions to 1 year suspension and an administrative fine ranging from $1,000.00 to $5,000.00, or denial of refusal to certify an application for licensure.		(c) From 1 year suspension of the license to revocation and an administrative fine ranging from $5,000.00 to $10,000.00, or denial of refusal to certify an application for licensure.		(c) Revocation
(d) Filing a false report or failing to file a report as required. Such reports or records shall include only those which the person is required to make or file as a speech pathologist or audiologist. (468.1295(1)(d), F.S.) (456.072(1)(l), F.S.)	(d) From a letter of concern to reprimand to a suspension of the license, and an administrative fine of $10,000.00.     If unintentional then any of the above and administrative fine of up to $10,000.00.		(d) From reprimand and suspension to revocation to probation of the license, and an administrative fine of $10,000.00.   If unintentional then any of the above and administrative fine of up to $10,000.00.		(d) Revocation From probation to suspension of the license, and an administrative fine of $10,000.00.     If unintentional, from reprimand and suspension to revocation, and an administrative fine up to $10,000.00.
(e) False, deceptive, or misleading advertising. (468.1295(1)(e), F.S.). (456.072 (1)(m), F.S.)	(e) From a letter of concern to 6 months suspension of the license, and an administrative fine of $10,000.00.   If unintentional then any of the above and administrative fine of up to $10,000.00.		(e) From 6 to 9 months suspension of the license, and an administrative fine of $10,000.00.   If unintentional then any of the above and administrative fine of up to $10,000.00.		(e) From 9 months suspension to revocation of the license, and an administrative fine of $10,000.00.
(f) No change.
(g)1. Violation or repeated violation of Chapter 468, Part I or Chapter 456, F.S., or any rules promulgated pursuant thereto, or a subpoena of the Department. (468.1295(1)(g), (bb), F.S.); (456.072(1)(b), (q), F.S.)	(g)1. From reprimand to suspension of the license, and an administrative fine ranging from $1,000.00 to $5,000.00 $3,000.00, or refusal to certify an application for licensure.		(g)1. From probation to revocation of the license, and an administrative fine ranging from $5,000.00 $3,000.00 to $7,500.00 $6,000.00, or refusal to certify an application for licensure.		(g)1. From suspension to revocation of the license, and an administrative fine ranging from $7,500.00 $6,000.00 to $10,000.00, or refusal to certify an application for licensure.
2. Violation of a lawful order of the Board or Department. (468.1295(1)(g), F.S.); (456.072(1)(q), F.S.)	2. From a letter of concern to reprimand of the license, and an administrative fine ranging from $1,000.00 to $5,000.00 $3,000.00, or refusal to certify an application for licensure.		2. From probation to suspension of the license, and an administrative fine ranging from $5,000.00 $3,000.00 to $7,500.00 $5,000.00, or refusal to certify an application for licensure.		2. From suspension to revocation of the license, and an administrative fine ranging from $7,500.00 $5,000.00 to $10,000.00, or refusal to certify an application for licensure.
(h) No change.
(i) No change.
(j) No change.
(k) Failing to submit to the Board certification of testing and calibration of such equipment as designated by the Board Failure to maintain and have available for inspection by the Agency certification for the testing and calibration of any audiometric testing equipment designated by the Board covering the current year as well as the three (3) years prior. (468.1295(1)(k), F.S.)	(k) From reprimand to suspension of the license, and an administrative fine ranging from $500.00 to $750.00, or refusal to certify an application for licensure.		(k) From probation to suspension, and an administrative fine ranging from $750.00 to $1,000.00, or refusal to certify an application for licensure.		(k) From suspension to revocation of the license, and an administrative fine ranging from $750.00 to $1,000.00, or refusal to certify an application for licensure.
(l) No change.
(m) Misrepresentation of professional services available in the fitting, sale, adjustment, service or repair of a hearing aid, or use of any other term or title connoting availability of professional services when such use is not accurate. (468.1295(1)(m), F.S.); (456.072(1)(i), F.S.).	(m) From a letter of concern to probation of the license, and an administrative fine of $10,000.00.   If misrepresentation or use of term is negligent or inadvertent then any of the above and an administrative fine of up to $10,000.00.		(m) From probation to suspension of the license, and an administrative fine of $10,000.00.   If misrepresentation or use of term is negligent or inadvertent then any of the above and an administrative fine of up to $10,000.00.		(m) From suspension to revocation of the license, and an administrative fine of $10,000.00.
(n) No change.
(o) No change.
(p) No change.
(q) No change.
(r) No change.
(s) No change.
(t) No change.
(u) No change.
(v) Exercising influence on a client in such a manner as to exploit the client for financial gain of the licensee or of a third party. (468.1295(1)(v), F.S.)	(v) Reprimand of the license, and an administrative fine ranging from $500.00 to $3,000.00, or refusal to certify an application for licensure.		(v) Probation of the license, and an administrative fine ranging from $3,000.00 to $6,000.00, or refusal to certify an application for licensure.		(v) Six month suspension, and an administrative fine ranging from $6,000.00 to $10,000.00, or refusal to certify an application for licensure.

 

(w) Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities the licensee or certificateholder knows, or has reason to know, the licensee or certificateholder is not competent to perform. (468.1295(1)(w), F.S.) (456.072(1)(o), F.S.)	(w) From reprimand to suspension of the license, and an administrative fine ranging from $2,500.00 to $5,000.00, or refusal to certify an application for licensure.	(w) From probation to revocation of the license, and an administrative fine ranging from $5,000.00 to $7,500.00, or refusal to certify an application for licensure.		(w) From suspension to revocation of the license, and an administrative fine ranging from $7,500.00 to $10,000.00, or refusal to certify an application for licensure.
(x) Aiding, assisting, procuring, or employing any unlicensed person to practice speech-language pathology or audiology. (468.1295(1)(x), F.S.) (456.072(1)(j), F.S.) Should the violator be an unlicensed person, the Board will request the Department to enter a cease and desist order.	(x) From a reprimand to probation of the license, and an administrative fine ranging from $2,500.00 to $5,000.00, or refusal to certify an application for licensure.	(x) From probation to suspension of the license, and an administrative fine ranging from $5,000.00 to $7,500.00, or refusal to certify an application for licensure.		(x) From suspension to revocation of the license, and an administrative fine ranging from $7,500.00 to $10,000.00, or refusal to certify an application for licensure.
(y) No change.
(z) Committing any act upon a patient or client which would constitute sexual battery or which would constitute sexual misconduct as defined pursuant to Section 468.1296, F.S. (468.1295(1)(z), F.S.) (456.072(1)(v), F.S)	(z) Reprimand and six months suspension to probation or revocation of the license, and an administrative fine ranging from $2,500.00 to $5,000.00, or refusal to certify an application for licensure.		(z) From probation and/or suspension to revocation of the license, and an administrative fine ranging from $5,000.00 to $7,500.00, or refusal to certify an application for licensure.	(z) From suspension to revocation of the license, and an administrative fine ranging from $7,500.00 to $10,000.00, or refusal to certify an application for licensure.
(aa) Impairment under Section 456.076, F.S. (468.1295(1)(aa), F.S.). (456.072(1)(z), F.S.)	(aa) Referral to Physicians Recovery Network (PRN) up to suspension until the licensee can demonstrate the ability to practice with reasonable skill and safety or refusal to certify an application for licensure.		(aa) Referral to PRN up to suspension until the licensee can demonstrate the ability to practice with reasonable skill and safety or refusal to certify an application for licensure.	(aa) Referral to PRN up to suspension until the licensee can demonstrate the ability to practice with reasonable skill and safety or refusal to certify an application for licensure.
(bb) Violating any provision of this chapter or Chapter 456, F.S., or any rules adopted pursuant thereto. (468.1295(1)(bb), F.S.)	(bb) From a reprimand to probation of the license, and an administrative fine ranging from $2,500.00 to $5,000.00, or refusal to certify an application for licensure.		(bb) From probation to suspension of the license, and an administrative fine ranging from $5,000.00 to $7,500.00, or refusal to certify an application for licensure.	(bb) From suspension to revocation of the license, and an administrative fine ranging from $7,500.00 to $10,000.00, or refusal to certify an application for licensure.
(bb)(cc) Violating Section 456.072(1)(gg), F.S., by Ffailing to comply with, failing to successfully complete, or being terminated from an impaired practitioner treatment program. (456.072(1)(hh), F.S.)	(bb)(cc) From suspension until licensee demonstrates compliance with all terms of the monitoring, or treatment contract, and is able to demonstrate to the Board the ability to practice with reasonable skill and safety to be followed by a term of probation. Suspension until compliant up to suspension until compliant with, followed by up to five years probation with conditions.		(bb)(cc) From suspension until licensee demonstrates compliance with all terms of the monitoring, or treatment contract, and is able to demonstrate to the Board the ability to practice with reasonable skill and safety to be followed by a term of probation, and up Up to $2,000.00 administrative fine, to revocation. Suspension until compliant followed by up to five years probation with conditions, or revocation.	(bb)(cc) From suspension until licensee demonstrates compliance with all terms of the monitoring, or treatment contract, and is able to demonstrate to the Board the ability to practice with reasonable skill and safety to be followed by a term of probation, and up Up to $5,000.00 2,000.00 fine, to revocation suspension until compliant followed by up to five years probation with conditions, or revocation.
(cc)(dd) Violating Section 456.072(1)(t), F.S., by Ffailing to identify through written notice or orally to a patient the type of license under which the practitioner is practicing or failing to identify the type of license that the practitioner pictured or named in an advertisement for health care services holds. (456.072(1)(t), F.S.)	(cc)(dd) From a letter of concern to reprimand of the license and an administrative fine ranging from $250.00 to $500.00.		(cc)(dd) From probation to suspension of the license, and an administrative fine ranging from $500.00 to $750.00.	(cc)(dd) From suspension to revocation, and an administrative fine ranging from $750.00 to $1,000.00.
(dd) Failing to report to the Board within thirty (30) days after the licensee has been convicted of a crime in any jurisdiction. (456.072(1)(x), F.S.)	(dd) From a reprimand and an administrative fine up to $1,000.00.		(dd) From a reprimand to suspension of license, and an administrative fine up to $5,000.00.	(dd) From suspension to revocation of license, and an administrative fine up to $10,000.00.
(ee) Being convicted of, or entering a plea of guilty or nolo contendere to, any misdemeanor or felony, regardless of adjudication, under 18 USC s. 669, ss. 285-287, s. 371, s. 1001, s. 1035, s. 1341, s. 1343, s. 1347, s. 1349, or s. 1518, or 42 USC ss. 1320a-7b, relating to the Medicaid program. (456.072(1)(ii), F.S.)	(ee) Revocation and a fine of $10,000, or in the case of application for licensure, denial of license.
(ff) Failing to remit the sum owed to the state for overpayment from the Medicaid program pursuant to a final order, judgment, or settlement. (456.072(1)(jj), F.S.)	(ff) From a reprimand to probation of the license, and an administrative fine of $500.00 to $1,000.00.		(ff) From a reprimand to suspension of license, and an administrative fine of $1,000.00 to $5,000.00.	(ff) From suspension to revocation of license, and an administrative fine of $5,000.00 to $10,000.00.
(gg) Being terminated from the state Medicaid program, or any other state Medicaid program, or the federal Medicare program. (456.072(1)(kk), F.S.)	(gg) From a reprimand of the license and an administrative fine up to $1,000.00 to revocation and a fine up to $10,000.		(gg) From a reprimand to suspension of license, and an administrative fine up to $5,000.00 up to revocation and a fine up to $10,000.	(gg) From suspension to revocation of license, and an administrative fine of $1,000.00 to $5,000.00 up to revocation and a fine up to $10,000.
(hh) Being convicted of, or entering into a plea of guilty or nolo contendere to, any misdemeanor or felony, regardless of adjudication, which relates to health care fraud. (456.072(1)(ll), F.S.)	(hh) Revocation and a fine of $10,000, or in the case of application for licensure, denial of license.

 

Rulemaking Specific Authority 456.078, 468.1135(4) FS. Law Implemented 456.063, 456.072, 456.076, 456.078, 468.1295, 468.1296 FS. History–New 2-7-91, Amended 11-9-92, Formerly 21LL-7.001, 61F14-7.001, 59BB-7.001, Amended 10-25-00, 4-14-02, 8-22-05, 12-28-05, 8-28-07,_________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Board of Speech Language Pathology and Audiology

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Board of Speech Language Pathology and Audiology

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: April 18, 2012

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: June 8, 2012