Disciplinary Guidelines; Range of Penalties; Aggravating and Mitigating Circumstances

DEPARTMENT OF HEALTH
Board of Nursing

RULE NO.: RULE TITLE:
64B9-8.006: Disciplinary Guidelines; Range of Penalties; Aggravating and Mitigating Circumstances

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. 38 No. 17, April 27, 2012 issue of the Florida Administrative Weekly.

The changes are due to concerns by the Joint Administrative Committee in their letters dated May 7, 2012 and July 3, 2012 and due to language being inadvertently omitted. The changes are as follows:

1. Subsection (3)(a) shall now read as: Procuring, attempting to procure, or renewing a license to practice nursing by bribery, by knowing misrepresentations, or through an error of the department or board. (Sections 456.072(1)(h) or 464.018(1)(a), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$500 fine and probation	$10,000 fine and revocation

 

2. Subsection (3)(c)1.shall now read as: Being convicted of or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication of a crime in any jurisdiction which directly relates to the practice of nursing or to the ability to practice nursing. (Sections 456.072(1)(c), 464.018(1)(c), misdemeanors in violation of Section 464.018(1)(d)3., or (d)7., or 464.018(1)(e), for crimes set forth in Sections 435.04(2)(a) through (t), (v) through (dd) or (ff), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand	$10,000 fine and suspension
SECOND OFFENSE	$500 fine and probation	Revocation

 

3. Subsection (3)(c)2. shall now read as: Being found guilty, regardless of adjudication, of a violation of Chapter 776, 784, 812, 827, 415 or 39, F.S. (Sections 464.018(1)(d)1., (d)2., (d)5., (d)6., (d)7., or (d)8., or a misdemeanor violation of Chapter 409 or 817, F.S.).

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand	$10,000 fine and suspension
SECOND OFFENSE	$500 fine and probation	Revocation

 

4. Subparagraph (3)(c)3. shall now read as: Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication of a felony violation of Chapter 409, 817 or 893, or of any crime related to health care fraud, F.S. (Sections 456.072(1)(ll), 464.018(1)(d)3., or 464.018(1)(e) for crimes set forth in Section 435.04(2)(u) or (ee). F.S.).

	MINIMUM	MAXIMUM
FIRST OFFENSE	$10,000 fine and probation	$10,000 fine and revocation

 

5. Paragraph (3)(d) shall now read as: Making or filing a false report or record, which the licensee knows to be false, intentionally or negligently failing to file a report or records required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so; Intentionally submitting a claim, statement or bill that has been upcoded as defined in Section 627.736, F.S., for a PIP claim or for services that were not rendered. (Section 456.072(1)(l), (ee) or (ff) or 464.018(1)(f), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE	$250 fine, continuing education or probation	$10,000 fine and suspension
SECOND OFFENSE	$500 fine and suspension	$10,000 and revocation

 

6. Paragraph (3)(l) shall now read as: Making misleading, deceptive or fraudulent representations in or related to the practice of the licensee's profession or making deceptive, untrue, or fraudulent representations in or related to the practice of a profession or employing a trick or scheme in or related to the practice of a profession. (Section 456.072(1)(a) or (m), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	Reprimand and $250 fine	$10,000 fine and suspension
SECOND OFFENSE	$500 fine and suspension	$10,000 fine and revocation

 

7. Paragraph (3)(u) shall now read as: Failing to comply with the requirements of Sections 381.026 and 381.0261, F.S., to provide patients with information about their patient rights and how to file a patient complaint. (Section 456.072(1)(u), F.S.)

	MINIMUM	MAXIMUM
FIRST OFFENSE	$100 fine and continuing education	$250 fine and probation
SECOND OFFENSE	$500 fine and probation	$500 fine and suspension

 

8. Paragraph (3)(v) shall now read as: Engaging or attempting to engage in sexual misconduct as defined and prohibited in Section 456.063(1). (Section 456.072(1)(v), F.S.)

 

	MINIMUM	MAXIMUM
FIRST OFFENSE	$250 fine, suspension and IPN evaluation	$500 fine, suspension and IPN evaluation, or revocation

 

9. Paragraph (3)(aa) shall now read as: Being convicted of, or entering a plea of guilty or nolo contendere to, any misdemeanor or felony, regardless of adjudication, 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 (Sections 456.072(1)(ii) and (ll), F.S.) $10,000 fine and revocation.

10. Paragraph (3)(cc) shall now read as: 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.).

	MINIMUM	MAXIMUM
FIRST OFFENSE	$500 Reprimand	Revocation

 

11. Paragraph (3)(dd) shall now read as: Violating any of the provisions of Section 790.338 (Section 456.072(1)(nn), F.S.) Letter of Concern

(4) In licensure and disciplinary matters involving impairment, the applicant or licensee may be referred to IPN in addition to the imposition of the above-outlined disciplinary action.

(5)(a) The Board shall be entitled to deviate from the foregoing guidelines upon a showing of aggravating or mitigating circumstances by clear and convincing evidence, presented to the Board prior to the imposition of a final penalty at informal hearing. If a formal hearing is held, any aggravating or mitigating factors must be submitted to the hearing officer at formal hearing. At the final hearing following a formal hearing, the Board will not hear additional aggravating or mitigating evidence.

(b) Circumstances which may be considered for purposes of mitigation or aggravation of penalty shall include, but are not limited to, the following:

1. The danger to the public.

2. Previous disciplinary action against the licensee in this or any other jurisdiction.

3. The length of time the licensee has practiced.

4. The actual damage, physical or otherwise, caused by the violation.

5. The deterrent effect of the penalty imposed.

6. Any efforts at rehabilitation.

7. Attempts by the licensee to correct or stop violations, or refusal by the licensee to correct or stop violations.

8. Cost of treatment.

9. Financial hardship.

10. Cost of disciplinary proceedings.

(6) In instances when a licensee or applicant is found guilty of any of the above offenses involving fraud or making a false or fraudulent representation, the Board shall impose a fine of $10,000.00 per count or offense.