The Department determined that amendment of sections 64E-3.001(1) and (2), Florida Administrative Code (F.A.C.), are necessary to remove obsolete language regarding the study guide for certification by examination and renumber subsections (3) ...

DEPARTMENT OF HEALTH

Division of Environmental Health

RULE NOS.:RULE TITLES:

64E-3.001 Fees

64E-3.011Disciplinary Guidelines

PURPOSE AND EFFECT: The Department determined that amendment of  sections 64E-3.001(1) and (2), Florida Administrative Code (F.A.C.), are necessary to remove obsolete language regarding the study guide for certification by examination and renumber subsections (3) through (9) as (2) through (8); paragraphs 64E-3.011(1)(a)–(p), which are the disciplinary guidelines regarding violations pertaining to Sections 468.3101 and 381.0034, Florida Statutes, will be deleted from rule text and incorporated by reference in a new document entitled, “Disciplinary Guidelines for Radiological Personnel.”

SUMMARY: The study guide for certification examination referred to in section 64E-3.001(1) and (2), F.A.C., is no longer produced by the Department and therefore language referencing the study guide is being removed. The disciplinary guidelines in Rule 64E-3.011, F.A.C., will be deleted to reduce lines in rule text.

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 rules are 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: These rule amendments will not have an adverse economic impact. Obsolete language sections 64E-3.001(1) and (2), F.A.C., referring to the study guide that is no longer produced by the Department is being deleted. The disciplinary guidelines currently in Rule 64E-3.011, F.A.C., are being deleted from rule text and incorporated by reference to reduce lines in rule text. There will be no substantive changes to the disciplinary guidelines text once incorporated by reference. Therefore, this rulemaking will not have an adverse impact or regulatory costs in excess of $1 million within five years as established in s. 120.541(2)(a), F.S.

Any person who wishes to provide information regarding the statement of estimated regulatory costs, or to provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 468.303, 468.304, 468.3065, 468.309, 468.3101 FS.

LAW IMPLEMENTED: 381.0034, 468.303, 468.304, 468.306, 468.3065, 468.309, 468.3095 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: Brenda Andrews, 4052 Bald Cypress Way Bin C-21, Tallahassee, Florida 32399-1741, [phone], [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

64E-3.001 Fees.

The following fees are prescribed by the Ddepartment:

(1) The fee for initial application and a study guide for certification by examination as provided in Section 468.304, F.S., is 75 dollars plus the actual charge by the testing organization for the examination.

(1)(2) The fee for initial application without a study guide for certification by examination as provided in Section 468.304, F.S., is 50 dollars plus the actual charge by the testing organization for the examination.

(3) through (9) to be renumbered (2) through (8).

Rulemaking Authority 468.303, 468.304, 468.3065, 468.309 FS. Law Implemented 468.304, 468.306, 468.3065, 468.309, 468.3095 FS. History–New 10-1-84, Formerly 10D-74.40, Amended 3-21-88, 9-17-92, 11-6-94, Formerly 10D-74.040, Amended 10-28-99, 6-11-13, 7-28-15,                                          .

 

64E-3.011 Disciplinary Guidelines.

(1) When the Department finds that an applicant, employer, certificateholder or other person has committed any of the acts set forth in Section 468.3101, F.S., or has failed to comply with Section 381.0034, F.S., it shall impose appropriate penalties as recommended within the range of the “Ddisciplinary Gguidelines for Radiological Personnel” (revised October 2015) which is herein incorporated by reference and is available from the Department at http://www.FloridaHealth.gov/radiation and at http://www.flrules.org/Gateway/reference.asp?No=Ref-06284, considering that the following identification of offenses is descriptive only. Consult the full language contained in the statutes to assure comprehensive understanding of the violation. All violations are sufficient for refusal to certify an applicant. The disciplinary guidelines shall be interpreted as inclusive of those penalties that fall between the minimum and the maximum authorized for the violation. When a disciplinary guideline includes a period of probation, the intent is to require performance under supervision, additional education, treatment, and/or monitoring, or other conditions during the probationary period. The disciplinary guidelines are based upon a single count violation of each provision listed. Multiple count violations of a provision, or violations of multiple provisions will be grounds for enhancement of penalties. “PRN” refers to Professional’s Resource Network, the impaired practitioner program for applicants and certificateholders under this part.

(a) Section 468.3101(1)(a), F.S.: Attempting to procure a certificate to practice radiologic technology by bribery, by fraudulent misrepresentation, or through an error of the Department.

Bribery or fraudulent misrepresentation.

	MINIMUM	MAXIMUM
FIRST OFFENSE	$500 fine and one year suspension.	$1,000 fine and revocation.
SECOND OFFENSE	$1,000 fine and revocation.	$1,000 fine and revocation.

 

Department error.

 

	MINIMUM	MAXIMUM
FIRST OFFENSE	$250 fine and one year probation with conditions.	$500 fine and revocation.
SECOND OFFENSE	$500 fine and one year suspension.	$1,000 fine and revocation.

 

(b) Section 468.3101(1)(b), F.S.: Having a certificate to practice acted against by another organization or jurisdiction.

 

	MINIMUM	MAXIMUM
FIRST OFFENSE	Action consistent with the disciplinary guidelines for the offense had it initially come before the Department prior to the action that was taken elsewhere with strong consideration of the penalty that was actually imposed by the other organization or jurisdiction.	Suspension of the certificate until the discipline by the other organization or jurisdiction is satisfied.
SECOND OFFENSE	Suspension of the certificate until the discipline by the other organization or jurisdiction is satisfied.	$1,000 fine and revocation.

 

(c) Section 468.3101(1)(c), F.S.: Being convicted or found guilty of a crime that directly relates to the practice or the ability to practice radiologic technology or the duties of a radiologist assistant.

 

	MINIMUM	MAXIMUM
FIRST OFFENSE	$200 fine and one year of probation with conditions.	$1,000 fine and revocation.
SECOND OFFENSE	$350 fine and one year suspension followed by three years of probation with conditions.	$1,000 fine and revocation.

 

(d) Section 468.3101(1)(d), F.S.: Being convicted or found guilty of a crime against a person.

 

	MINIMUM	MAXIMUM
FIRST OFFENSE	$200 fine and one year of probation with conditions.	$1,000 fine and revocation.
SECOND OFFENSE	$350 fine and one year suspension followed by three years of probation with conditions.	$1,000 fine and revocation.

 

(e) Section 468.3101(1)(e), F.S.: Knowingly filing a false report or record or negligently failing to file a report required by law, or willfully impeding such filing.Negligent filing or failure to file report.

 

	MINIMUM	MAXIMUM
FIRST OFFENSE	$250 fine.	$500 fine and three years of probation with conditions.
SECOND OFFENSE	$500 fine and one year of probation with conditions.	$1,000 fine and one year suspension followed by three years of probation with conditions.

 

Willful filing or inducing the filing of a false report or obstructing or impeding the filing.

 

	MINIMUM	MAXIMUM
FIRST OFFENSE	$500 fine and a reprimand.	$1,000 fine and revocation.
SECOND OFFENSE	$750 fine and one year suspension followed by two years of probation with conditions.	$1,000 fine and revocation.

(f) Section 468.3101(1)(f), F.S.: Engaging in unprofessional conduct.

Unprofessional conduct includes, but is not limited to:

1. Administering radiation or otherwise practicing radiologic technology or the duties of a radiologist assistant in a negligent manner, either by omission or commission;

2. Administering radiation without authorization from a licensed practitioner.

3. Misappropriating supplies, equipment or drugs;

4. Leaving a radiologic technology assignment before properly advising appropriate personnel;

5. Violating the confidentiality of information concerning a patient;

6. Discriminating on the basis of race, creed, religion, sex, age or national origin, in the rendering of radiologic technology or radiologist assistant services as it relates to human rights and dignity of the individuals;

7. Engaging in fraud, misrepresentation, or deceit in taking the certification examination;

8. Aiding and abetting the practice of radiologic technology or the duties of a radiologist assistant by any person not so certified;

9. Practicing without a clear and active certificate;

10. Impersonating any applicant or acting as proxy for the applicant in any examination required for the issuance of a certificate;

11. Impersonating another certificateholder or permitting another person to use his or her certificate; and

12. Any behavior defined as unprofessional or unethical by a national registry, board, or other jurisdiction which licenses, certifies or registers radiologic technologists or radiologist assistants.

 

	MINIMUM	MAXIMUM
FIRST OFFENSE	$250 fine and a reprimand.	$1,000 fine and revocation.
SECOND OFFENSE	$500 fine and two years of probation with conditions.	$1,000 fine and revocation.

 

13. Engaging or attempting to engage in sexual misconduct, as defined in Section 456.063(1), F.S.

 

	MINIMUM	MAXIMUM
FIRST OFFENSE	$250 fine, three years of probation with conditions, evaluation, and appropriate treatment and monitoring.	$1,000 fine and revocation.
SECOND OFFENSE	$1,000 fine and revocation.	$1,000 fine and revocation.

 

(g) Section 468.3101(1)(g), F.S.: Being unable to practice radiologic technology or the duties of a radiologist assistant with reasonable skill and safety to patients.

 

	MINIMUM	MAXIMUM
FIRST OFFENSE	$250 fine, three years of probation with conditions, evaluation by PRN, and compliance with PRN recommendations.	$500 fine, indefinite suspension with periodic review until the subject demonstrates to the Department the ability to resume competent practice, followed by three years of probation with conditions and compliance with PRN recommendations.
SECOND OFFENSE	$500 fine, indefinite suspension with periodic review until the subject demonstrates to the Department the ability to resume competent practice, followed by three years of probation with conditions and compliance with PRN recommendations.	$1,000 fine and revocation.

 

(h) Section 468.3101(1)(h), F.S.: Failing to report any person violating Department laws, rules, or orders.

 

	MINIMUM	MAXIMUM
FIRST OFFENSE	$200 fine and reprimand.	$500 fine and three years of probation with conditions.
SECOND OFFENSE	$300 fine and six months probation with conditions.	$1,000 fine and one year suspension.

 

(i) Section 468.3101(1)(i), F.S.: Violating Chapter 468, F.S., or any law, rule, order, or subpoena of the Department.  In addition to the penalty listed, the person shall comply with the law, rule, order, or subpoena.

 

	MINIMUM	MAXIMUM
FIRST OFFENSE	$200 fine and a reprimand.	$500 fine and two years of suspension followed by two years of probation with conditions.
SECOND OFFENSE	$300 fine and one year suspension followed by two years probation with conditions.	$1,000 fine and revocation.

 

(j) Section 468.3101(1)(j), F.S.: Employing an uncertified person to practice radiologic technology or the duties of a radiologist assistant.

 

	MINIMUM	MAXIMUM
FIRST OFFENSE	$350 fine and one year of probation with conditions.	$700 fine and one year suspension followed by two years of probation with conditions.
SECOND OFFENSE	$700 fine and one year suspension with conditions.	$1,000 fine and revocation.

 

(k) Section 468.3101(1)(k), F.S.: Testing positive on a preemployment or employer-required drug screen.

 

	MINIMUM	MAXIMUM
FIRST OFFENSE	$250 fine, three years probation with conditions, evaluation by PRN, and compliance with PRN recommendations.	$500 fine, indefinite suspension with periodic review until the subject demonstrates to the Department the ability to resume competent practice, followed by three years of probation with conditions and compliance with PRN recommendations.
SECOND OFFENSE	$500 fine, indefinite suspension with periodic review until the subject demonstrates to the Department the ability to resume competent practice, followed by three years of probation with conditions and compliance with PRN recommendations.	$1,000 fine and revocation.

 

(l) Section 468.3101(1)(l), F.S.: Failing to report to the Department in writing within 30 days after having a certificate to practice acted against, including being denied certification, by a national registry or other jurisdiction.

 

	MINIMUM	MAXIMUM
FIRST OFFENSE	$150 fine and reprimand.	$250 fine and one year suspension.
SECOND OFFENSE	$300 fine and one year suspension followed by one year of probation with conditions.	$750 fine and two years of suspension.

 

(m) Section 468.3101(1)(m), F.S.: Having been found guilty or pled guilty or nolo contendere, regardless of adjudication, to any Section 435.03, F.S., offense.

 

	MINIMUM	MAXIMUM
FIRST OFFENSE	$250 fine and one year suspension followed by two years of probation with conditions.	$1,000 fine and revocation.
SECOND OFFENSE	$1,000 fine and revocation.	$1,000 fine and revocation.

 

(n) Section 468.3101(1)(n), F.S.: Failing to comply with PRN recommendations.

 

	MINIMUM	MAXIMUM
FIRST OFFENSE	Evaluation by PRN, compliance with PRN recommendations, and indefinite suspension of license with periodic review until the person demonstrates to the Department the ability to resume competent practice followed by probation for three years with conditions.	$1,000 fine and revocation.
SECOND OFFENSE	$500 fine, evaluation by PRN, compliance with PRN recommendations, and indefinite suspension of license with periodic review until the person demonstrates to the Department the ability to resume competent practice followed by probation for three years with conditions.	$1,000 fine and revocation.
THIRD OFFENSE	$1,000 fine and revocation.	$1,000 fine and revocation.

 

(o) Section 381.0034, F.S.: Failing to complete an HIV/AIDs course.

 

	MINIMUM	MAXIMUM
FIRST OFFENSE	$150 fine and proof of course completion not to be counted for another biennial renewal.	$250 fine, proof of course completion, a course on ethics, neither course to be counted for another biennial renewal.
SECOND OFFENSE	$300 fine and proof of course completion not to be counted for another biennial renewal.	$500 fine, proof of course completion, a course on ethics, neither course to be counted for another biennial renewal, and six months probation with conditions.

 

(p) Section 468.3101(6), F.S.: Having a continuing education course revoked or being otherwise acted against as a continuing education provider by a national registry or other jurisdiction.

 

	MINIMUM	MAXIMUM
FIRST OFFENSE	$250 fine, and the same penalty imposed by the other registry or jurisdiction.	$1,000 fine, revocation of the provider, and revocation of all approved continuing education courses.
SECOND OFFENSE	$500 fine, and the same penalty imposed by the other registry or jurisdiction which at a minimum must include a term of suspension of the provider and his/her approved continuing education courses.	$1,000 fine, revocation of the provider, and revocation of all approved continuing education courses.

 

(2) The range of disciplinary action which the Department may impose includes any and all set forth in Section 468.3101, F.S. The Department shall take various mitigating or aggravating factors into consideration in determining the appropriate disciplinary action to be imposed and shall state in the Final Order any factors used to deviate from the specified guidelines. The factors that may be considered are:

(a) The danger to the public;

(b) The number of repetitions of offenses;

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

(d) The length of time the certificateholder has practiced;

(e) The actual damage, physical or otherwise, caused by the violation;

(f) The deterrent effect of the penalty imposed;

(g) The effect of the penalty upon the certificateholder’s livelihood;

(h) Previous disciplinary action against the applicant or certificateholder by the Ddepartment, by a national organization or registry, or by the certification authority of another jurisdiction;

(i) Rehabilitation efforts or efforts to correct or stop violations, or the failure to correct or stop violations; and

(j) Any other mitigating or aggravating circumstances.

(3) A certificateholder whose certificate has been suspended, or placed on probation, may file a petition or an application for reinstatement, whichever is appropriate, after the time of suspension, or probation has passed, which petition or application shall include documentation that all terms and conditions established at the time of suspension, or probation have been met.

Rulemaking Specific Authority 381.0034, 468.303, 468.3101(4), 468.3101(6) FS. Law Implemented 381.0034, 468.303, 468.3101 FS. History–New 4-10-85, Formerly 10D-74.58, Amended 3-21-88, 9-17-92, 5-7-96, Formerly 10D-74.058, Amended 5-14-07,               .

NAME OF PERSON ORIGINATING PROPOSED RULE: Cynthia Becker, Bureau Chief, Bureau of Radiation Control

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: John H. Armstrong, M.D, FACS, Surgeon General and Secretary

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: November 30, 2015

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: September 23, 2015