RULE NO.:RULE TITLE:
64B7-30.002Disciplinary 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., F.S., published in Vol. 44 No. 14, January 22, 2018 issue of the Florida Administrative Register.
64B7-30.002 Disciplinary Guidelines.
(1) No change.
(2) If the offense is for fraud or making a false or fraudulent representation, the recommended penalties are:
(a) through (c) No change.
(3) Disciplinary Guidelines
VIOLATION
FIRST OFFENSE
SECOND OFFENSE
(a) No change.
(b) No change.
(c) Section 480.046(1)(c)
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 this chapter. or
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.
Reprimand to revocation
30 day suspension to revocation
(d) Section 480.041(7), F.S.
The board shall deny an application for a new or renewal license if an applicant has been convicted or found guilty of, or enters a plea of guilty or nolo contendere to, regardless of adjudication, a violation of s. 796.07(2)(a) which is reclassified under s. 796.07(7) or a felony offense under any of the following provisions of state law or a similar provision in another jurisdiction:
(a) through (m) No change.
(n) Section 825.1025(2)(b), relating to lewd or lascivious offenses committed upon or in the presence of an elderly or disabled person.
(o) Section 827.071, relating to sexual performance by a child.
(p) Section 847.0133, relating to the protection of minors.
(q) Section 847.0135, relating to computer pornography.
(r) Section 847.0138, relating to the transmission of material harmful to minors to a minor by electronic device or equipment.
(s) Section 847.0145, relating to the selling or buying of minors.
Denial of application or revocation
(e) Section 456.072(1)(ii)
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.
or 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.
Denial of application or revocation and $10,000 fine
(f) Section 480.046(1)(d), F.S.
False, deceptive, or misleading advertising.
Reprimand and, $500 fine to probation and, $750.00 fine
Probation, $1,000 fine to revocation
(g) No change.
(h) No change.
(i) No change.
(j) No change
(k) Section 480.046(1)(i)
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.
Reprimand, $1,000 fine to probation $1,000 fine, suspension
$2,500 $1,000 fine, 30 day suspension to revocation
(l) Section 480.046(1)(j), 456.072(1)(o) 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.
$1,000 fine, probation to revocation
$2,500 fine, 30 day suspension to revocation
(m) Section 480.046(1)(l)
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)
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 to revocation
$500 fine and suspension until compliant to revocation
(n) Section 480.046(1)(m)
Refusing to permit the department to inspect the business premises of the licensee during regular business hours.
Section 456.072(1)(r)
Improperly interfering with an investigation or inspection authorized by statute, or with any disciplinary proceeding.
$500 fined, suspension until compliant to $1,000 fine, suspension until compliant
$1,500 fine, suspension until compliant to revocation
(o) No change.
(p) Section 480.046(1)(o)
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$100 fine for 1st month and $100$50 for each succeeding month up to six months$2,000 fine, suspension
$2,500 fine, six months suspension to revocation
(q) Section 480.046(1)(p)
Violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto.
Section 456.072(1)(b)
Intentionally violating any rule adopted by the board or the department, as appropriate.
Section 456.072(1)(dd)
Violating any provision of this chapter, the applicable practice act, or any rules adopted pursuant thereto.
Reprimand, $250 fine to revocation
Reprimand, $1,000 fine, 30 day suspension to revocation
1. 480.0465 Each massage therapist or massage establishment licensed under the provisions of this act 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. Pending licensure of a new massage establishment pursuant to the provisions of s. 480.043(7), the license number of a licensed massage therapist who is an owner or principal officer of the establishment may be used in lieu of the license number for the establishment.
Reprimand and, $500 fine to revocation
$1,500 fine to 30 day suspension
2. 480.0485 The massage therapist-patient relationship is founded on mutual trust. Sexual misconduct in the practice of massage therapy means violation of the massage therapist-patient relationship through which the massage therapist uses that relationship to induce or attempt to induce the patient to engage, or to engage or attempt to engage the patient, in sexual activity outside the scope of practice or the scope of generally accepted examination or treatment of the patient. Sexual misconduct in the practice of massage therapy is prohibited.
$2,500 fine and, revocation
3. 480.047(1)(b) Operate any massage establishment unless it has been duly licensed as provided herein, except that nothing herein shall be construed to prevent the teaching of massage in this state at a board-approved massage school.
456.036(1) A licensee may practice a profession only if the licensee has an active status license. A licensee who practices a profession with an inactive status license, a retired status license, or a delinquent license is in violation of this section and s. 456.072, and the board, or the department if there is no board, may impose discipline on the licensee.
$250$100 fine for 1st month, and $100$50 for each succeeding month, up to six (6) months
4. 480.047(1)(b), Operate any massage establishment unless it has been duly licensed as provided herein, except that nothing herein shall be construed to prevent the teaching of massage in this state at a board-approved massage school.
456.036(1) A licensee may practice a profession only if the licensee has an active status license. A licensee who practices a profession with an inactive status license, a retired status license, or a delinquent license is in violation of this section and s. 456.072, and the board, or the department if there is no board, may impose discipline on the licensee.
a. Practicing on inactive or retired
license.
b. Practicing on delinquent license.
Revocation
a. Reprimand, to $1,500 fine
b. Reprimand, $250 fine for 1st month, and $100 for each succeeding month up to 6 months
a. Revocation
b. Revocation
5. 480.047(1)(c) Permit an employed person to practice massage unless duly licensed as provided herein.
$1,000 fine, 30 day suspension to revocation
$2,500 fine to revocation
6. through 9. No change.
10. Rule 64B7-26.010 (1) Sexual activity by any person or persons in any massage establishment is absolutely prohibited.
(2) No massage establishment owner shall engage in or permit any person or persons to engage in sexual activity in such owner’s massage establishment or use such establishment to make arrangements to engage in sexual activity in any other place.
(3) No licensed massage therapist shall use the therapist-client relationship to engage in sexual activity with any client or to make arrangements to engage in sexual activity with any client.
(4) As used in this rule, “sexual activity” means any direct or indirect physical contact by any person or between persons which is intended to erotically stimulate either person or both or which is likely to cause such stimulation and includes sexual intercourse, fellatio, cunnilingus, masturbation, or anal intercourse. For purposes of this subsection, masturbation means the manipulation of any body tissue with the intent to cause sexual arousal. As used herein, sexual activity can involve the use of any device or object and is not dependent on whether penetration, orgasm, or ejaculation has occurred. Nothing herein shall be interpreted to prohibit a licensed massage therapist, duly qualified under Rule 64B7-31.001, F.A.C, from practicing colonic irrigation.
$2,500 fine and, revocation to $10,000 fine and revocation
(r) 456.072(1)(g)
Having been found liable in a civil proceeding for knowingly filing a false report or complaint with the department against another licensee
$500 fine and 30 day suspension to $1,000 fine and revocation
$1,500 fine and 6 months suspension to revocation
(s) 456.072(1)(i)
Except as provided in s. 465.016, failing to report to the department any person who the licensee knows is in violation of this chapter, the chapter regulating the alleged violator, or the rules of the department or the board. However, a person who the licensee knows is 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 a mental or physical condition, may be reported to a consultant operating an impaired practitioner program as described in s. 456.076 rather than to the department.
$500 fine and reprimand to $1,000 fine and 30 day suspension
$1,500 fine and 30 day suspension to revocation
(t) 456.072(1)(k)
Failing to perform any statutory or legal obligation placed upon a licensee. For purposes of this section, failing to repay a student loan issued or guaranteed by the state or the Federal Government in accordance with the terms of the loan or failing to comply with service scholarship obligations shall be considered a failure to perform a statutory or legal obligation., and the minimum disciplinary action imposed shall be a suspension of the license until new payment terms are agreed upon or the scholarship obligation is resumed, followed by probation for the duration of the student loan or remaining scholarship obligation period, and a fine equal to 10 percent of the defaulted loan amount. Fines collected shall be deposited into the Medical Quality Assurance Trust Fund.
Suspension of the license until new payment terms are agreed upon or the scholarship obligation is resumed, followed by probation for the duration of the student loan or remaining scholarship obligation period, and a fine equal to 10 percent of the defaulted loan amount. $250 fine to $500 fine
Suspension of the license until new payment terms are agreed upon or the scholarship obligation is resumed, followed by probation for the duration of the student loan or remaining scholarship obligation period, and a fine equal to 15 percent of the defaulted loan amount.
(u) 456.072(1)(l)
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. Such reports or records shall include only those that are signed in the capacity of a licensee.
$500 fine and probation to $2,000 fine and 6 months suspension revocation
$2,500 fine to revocation
(v) 456.072(1)(n)
Exercising influence on the patient or client for the purpose of financial gain of the licensee or a third party.
Reprimand, $1,000 fine, and 30 day suspension to $2,000 fine and 6 months suspension.
$500 fine and probation to $1,000 fine and revocation
Revocation
(w) 456.072(1)(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. This paragraph does not apply to a practitioner while the practitioner is providing services in a facility licensed under chapter 394, chapter 395, chapter 400, or chapter 429. Each board, or the department where there is no board, is authorized by rule to determine how its practitioners may comply with this disclosure requirement.
Letter of concern to $250 fine and reprimand
$2,500 fine to revocation
(x) 456.072(1)(x)
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. Convictions, findings, adjudications, and pleas entered into prior to the enactment of this paragraph must be reported in writing to the board, or department if there is no board, on or before October 1, 1999.
$250$500 fine and 10 hours continuing education to $1,000 fine and 30 day suspension
$500 fine and 10 hours continuing education to $2,000 fine and 6 months suspension
(y) 456.072(1)(y)
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.
Reprimand, $500 fine and 30 day suspension to $1,000 fine and 6 months suspension
$500 fine and probation to $1,000 fine and suspension
Revocation
(z) 456.072(1)(aa)
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.
$250 fine and sSuspension until PRN evaluation, compliance with all recommendations contract if recommended to revocation
$500 fine and suspension until PRN evaluation,compliance with all recommendations to revocation
(aa) 456.072(1)(bb)
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. For the purposes of this paragraph, performing or attempting to perform health care services includes the preparation of the patient.
$500 fine and reprimand to $1,000 fine and revocation
$1,500 fine to revocation
(bb) 456.072(1)(cc)
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. For the purposes of this paragraph, it shall be legally presumed that retention of a foreign body is not in the best interest of the patient and is not within the standard of care of the profession, regardless of the intent of the professional.
$1,000 fine and reprimand to revocation
Revocation
(cc) No change.
(dd) 456.072(1)(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, 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 compliant with PRN to revocation
Revocation
(ee) 456.072(1)(nn)
Violating any of the provisions of s. 790.338.
Reprimand, $500 fine to $1,000 fine and 30 day suspension
$1,500 fine and 6 months suspension to revocation
(4) No change.
(5) When the Board finds any person guilty of the grounds set forth in subsection (1) or of any grounds set forth in the applicable practice act, including conduct constituting a substantial violation of subsection (1) or a violation of the applicable practice act which occurred prior to obtaining a license, it shall enter an order imposing one or more of the following penalties:
(a) Refusal to certify, or to certify with restrictions, an application for a license.
(b) Suspension or permanent revocation of a license.
(c) Restriction of practice.
(d) Imposition of an administrative fine not to exceed $10,000 for each Count or separate offense.
(e) Issuance of a reprimand.
(f) Placement of the licensee on probation for a period of time and subject to such conditions as the Board may specify. Those conditions shall include requiring the licensee to undergo treatment, attend continuing education courses, submit to be reexamined, work under the supervision of another licensee, or satisfy any terms which are reasonably tailored to the violations found.
(g) Corrective action.
(6) The provisions of subsections (1) through (4) above are not intended and shall not be construed to limit the ability of the Board to informally dispose of disciplinary actions by stipulation, agreed settlement, or consent order pursuant to Section 120.57(4), F.S.
(7) The provisions of subsections (1) through (4) above are not intended and shall not be construed to limit the ability of the Board to pursue or recommend the Department pursue collateral, civil or criminal actions when appropriate.
(8) In any proceeding where the Board is authorized to take disciplinary action, the Board will also impose costs of investigation and prosecution as authorized by Section 456.072(4), F.S.
(9) Whenever the Board, in accordance with this rule, imposes a monetary fine against a respondent in an Administrative Complaint, it shall also impose a suspension of the respondent’s license until the fine is paid. However, to enable the respondent to pay the monies fine, the Board shall stay the imposition of the suspension for the same time period as specified, in accordance with Rule 64B7-24.016, F.A.C., for payment of the monies fine. If the fine is paid within the specified time, then the order of suspension shall not take effect; if the fine is paid after the order of suspension has taken effect, then the stay shall be lifted.
Rulemaking Authority 456.072(2), 456.079(1), (3), 480.035(7) FS. Law Implemented 456.072(2), 456.079(1), (2), (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, .
