To clarify the rule, incorporate materials by reference and provide for mediation.

DEPARTMENT OF HEALTH

Council of Licensed Midwifery

RULE NOS.:RULE TITLES:

64B24-8.002Disciplinary Action and Guidelines

64B24-8.003Citations

PURPOSE AND EFFECT:  To clarify the rule, incorporate materials by reference and provide for mediation.

SUMMARY: The rule is being amended to streamline the rule, incorporate materials and provide for mediation as required by statute.

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: Based on the SERC checklist, 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:  456.004(5), 456.072(3), 456.077, 456.079, 467.005, 467.203(4) FS.

LAW IMPLEMENTED:  456.072(3), 456.07, 456.079, 467.203 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:  Claudia Kemp, Executive Director, 4052 Bald Cypress Way, Bin C-06, Tallahassee, FL 32399-3256 or [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

64B24-8.002 Disciplinary Action and Guidelines.

(1) Purpose. Pursuant to Sections 456.079 and 467.203, F.S., the department provides for disciplinary guidelines in this rule which shall be imposed upon applicants or licensees it regulates under Chapter 467, F.S.  The purpose of this rule is to notify applicants and licensees of the range of penalties which will routinely be imposed unless the department finds it necessary to deviate from the guidelines for the stated reasons given in this rule.  The range of penalties 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, including appropriate probation, supervision, and continuing education.  For applicants, all offenses listed in the Disciplinary Guidelines are sufficient for refusal to certify an application for licensure.

(2) Violations and Range of Penalties.  In imposing discipline upon applicants and licensees the department shall act in accordance with guidelines and shall impose a penalty within a range corresponding to the violations set forth in form DH5015-MQA, Council of Licensed Midwifery Disciplinary Guidelines (09/2015), incorporated herein by reference and available at https://flrules.com/gateway/reference.asp?No=Ref-#####.

(3)(1) The department shall take into consideration the following factors in determining the appropriate disciplinary action to be imposed:

(a) tThe danger to the public;

(b) tThe number of repetitions of offenses;

(c) tThe length of time since date of violation;

(d) tThe number of disciplinary actions taken against the licensee;

(e) tThe length of time licensee has practiced;

(f) tThe actual damage, physical or otherwise, to the patient;

(g) tThe deterrent effect of the penalty imposed;

(h) aAny efforts for rehabilitation; and

(i) aAny other mitigating or aggravating circumstances in determining the appropriate disciplinary action to be imposed.

(4)(2) Except as provided in subsection (1), the department shall discipline violations within the following specified range of penalty guidelines inclusive of the lessor and intermediate penalties set forth in Section 456.072(2), F.S., which fall within the identified range. For all persons subject to this rule, conditions of probation including having to work under a preceptor may be required during the period of probation, which is either the maximum penalty imposed or follows a period of suspension of license.  For applicants, all offenses listed herein are sufficient for refusal to certify an application for licensure. In addition to any other discipline imposed, the department shall assess the actual costs related to the investigation and prosecution of a case. In addition to or in lieu of any guideline penalties provided herein, if the violation is for fraud or making a false or fraudulent representation, the department shall impose a fine of $10,000 per count or offense.

(a) Section 467.203(1)(a) or 456.072(1)(h), F.S.: Procuring, attempting to procure, or renewing a license to practice midwifery by bribery, by fraudulent misrepresentation, or through an error of the department.

Obtain license by bribery – from a minimum fine of $500 and/or up to two years of probation to a maximum of revocation. For a subsequent offense, revocation;

Obtain license by fraudulent misrepresentation – from six months probation and a fine of $10,000 to a maximum of revocation and a fine of $10,000. For a subsequent offense, a fine of $10,000 and revocation;

Obtain license by Department error – from a minimum letter of concern and/or a fine of $250, up to a maximum of suspension of license for one year, followed by two years of probation, and a fine of $1,000. For a subsequent offense, from a minimum fine of $5,000 to revocation of license;

(b) Section 467.203(1)(b) or 456.072(1)(f), F.S.: Having a license to practice midwifery revoked, suspended, or otherwise acted against, including being denied licensure, by the licensing authority of another state, territory, or country – action consistent with the disciplinary guidelines for the offense that would have been taken had the violation occurred in Florida with consideration of the penalty imposed by the other jurisdiction. For a subsequent offense, action consistent with the disciplinary guidelines for a repeat offense had the violation occurred in Florida with consideration of the penalty imposed by the other jurisdiction.

(c) Section 467.203(1)(c) or 456.072(1)(c), F.S.: Being convicted or found guilty, regardless of adjudication, in any jurisdiction of a crime which directly relates to the practice of midwifery or to the ability to practice midwifery. A plea of nolo contendere shall be considered a conviction for purposes of this provision – misdemeanor: from a minimum fine of $600 and six months probation, up to a fine of $3,000 and one year’s suspension with conditions followed by two years probation; felony: from a minimum of a fine of $1,500 and two years probation, up to a fine of $10,000 and revocation. After the first offense, from a minimum of one year of probation, up to a maximum fine of $10,000 and revocation of license;

(d) Section 467.203(1)(d) or 456.072(1)(a), (g) or (l), F.S.: Making or filing a false report or record, 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 such filing or inducing another to do so. Such reports or records shall include only those which are signed in the midwife’s capacity as a licensed midwife.

Negligent filing of false report – from a minimum fine of $500, up to a maximum of one year probation and a fine of $2,500. For a second offense, a minimum fine of $1,000 and a reprimand to a maximum fine of $3,000 and two years suspension. After the second offense, up to a maximum fine of $5,000 and/or revocation;

Willful filing of false report, impeding, or inducing another to file false report – from a minimum fine of $2,000 and/or suspension of license for three months, followed by six months of probation, up to a maximum of revocation of license. After the first offense, up to a maximum fine of $10,000 and/or revocation.

(e) Section 467.203(1)(e) or 456.072(1)(m), F.S.: Advertising falsely, misleadingly, or deceptively – from a minimum fine of $500 and a letter of concern up to a maximum fine of $10,000 and/or three months suspension of license. For a subsequent offense, a fine of up to $10,000 and/or one year suspension to the maximum $10,000 fine and revocation;

(f) Section 467.203(1)(f), F.S.: Engaging in unprofessional conduct, which includes, but is not limited to, any departure from, or the failure to conform to, the standards of practice of midwifery as established by the department, in which case actual injury need not be established – from a reprimand and minimum fine of $250 to suspension of license for up to three years and/or a fine of $3,000. For a second offense, from two years probation and a minimum fine of $500 to revocation and/or a fine of up to $10,000.  After the second offense, revocation and a fine of up to $10,000;

(g) Section 467.203(1)(g) or 456.072(1)(z), F.S.: Being unable to practice midwifery with reasonable skill and safety to patients by reason of illness; drunkenness; or use of drugs, narcotics, chemicals, or other materials or as a result of any mental or physical condition. A midwife affected under this paragraph shall, at reasonable intervals, be afforded an opportunity to demonstrate the ability to resume the competent practice of midwifery with reasonable skill and safety – from three years of probation and referral for a PRN evaluation, up to a maximum of suspension of license for one year, followed by up to five years of probation. For a subsequent offense, from a fine of up to $1,500, referral for a PRN evaluation, and two years of probation to a maximum fine of $5,000 and/or revocation;

(h) Section 467.203(1)(h) or 456.072(1)(i), F.S.: Failing to report to the department any person who the licensee knows is in violation of this chapter or of the rules of the department – from a minimum letter of concern and/or a fine of $250, up to a maximum fine of $750 and/or six months of probation. After the first offense, a minimum of six months of probation and a fine of $800 to a maximum fine of $5,000 and/or revocation;

(i)  Section 467.203(1)(i) or 456.072(1)(q), F.S.: Violating any lawful order of the department previously entered in a disciplinary proceeding or failing to comply with a lawfully issued subpoena of the department – from a minimum fine of $500 and a letter of concern, up to a maximum fine of $10,000 and/or revocation.  For a subsequent offense, from a minimum fine of $1,500 and/or two years of probation up to a maximum fine of $10,000 and/or revocation of license;

(j) Section 467.203(1)(j) or 456.072(1)(b) or (dd), F.S.: Violating any provision of this chapter or Chapter 456, F.S., or any rules adopted pursuant thereto – from a minimum fine of $500 and/or a letter of concern up to a maximum fine of $5,000 and/or suspension of license for two years followed by two years of probation. For a second offense, from a minimum fine of $1,500 and/ or two years of probation up to a maximum fine of $7,500 and/or revocation of license. After the second offense, from a minimum fine of $3,000 and/or six months of suspension followed by one year of probation up to a maximum fine of $10,000 and/or revocation;

(k) Section 456.072(1)(j) or (p), F.S.: Knowingly or willfully allowing a midwifery student to practice midwifery without a preceptor present, except in an emergency or aiding, assisting, procuring, employing, or advising any unlicensed person or entity to practice a profession contrary to the chapter regulating the profession or the applicable rules – from a minimum fine of $750 and/or six months of probation, up to a maximum fine of $2,500 and suspension of license for three years, followed by up to three years of probation. For a subsequent offense, from a minimum fine of $1,000 and/or suspension of license for one year followed by two years of probation up to a maximum fine of $7,500 and/or revocation;

(l) Section 456.072(1)(k), F.S.: Failing to perform any statutory or legal obligation placed upon a licensee – from a minimum fine of $250 and a letter of concern, up to a maximum fine of $3,000 and/or up to two years of suspension followed by two years of probation;

(m) Section 456.072(1)(o), F.S.: Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities the licensee knows, or has reason to know, the licensee is not competent to perform – from a minimum fine of $500 and/or one year of probation, up to a maximum of suspension of license for three years followed by probation and a fine of $3,000. For a subsequent offense, up to a maximum fine of $10,000 and/or revocation;

(n) Section 456.072(1)(r), F.S. Improperly interfering with an investigation or inspection authorized by statute, or with any disciplinary proceeding – from a minimum fine of $500 and/or one year of probation up to a maximum fine of $3,000 and/or up to suspension for two years followed by two years probation. For a subsequent offense, a minimum fine of $1,000 up to a maximum fine of $10,000 and/or revocation;

(o) Section 456.072(1)(v), F.S.: Engaging or attempting to engage in sexual misconduct – from a reprimand and/or a PRN referral for evaluation, up to a maximum fine of $10,000 and/or revocation. For a subsequent offense, from a minimum fine of $1,000, referral to PRN for evaluation, and suspension for up to three years followed by probation for three years up to a maximum fine of $10,000 and revocation;

(p) Section 456.072(1)(x), F.S.: Failing to report to the department 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 – from a minimum fine of $500 and/or a letter of concern, up to a maximum fine of $2,000 and or six months suspension followed by one year of probation.  For a subsequent offense, a fine of up to $3,000 and/or probation for one year up to suspension of license for two years followed by two years of probation;

(q) Section 456.072(1)(bb), F.S.: 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 including the preparation of the patient – from a minimum fine of $500 and one year of probation to a maximum fine of $1,500 and one year suspension of the license followed by two years of probation. For a subsequent offense, from a fine of up to $5,000 to revocation;

(r) Section 456.072(1)(cc), F.S.: Leaving a foreign body in a patient, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in examination or other diagnostic procedures – from a minimum fine of $500 and one year of probation to a maximum fine of $1,500 and one year suspension of the license followed by two years of probation. For a subsequent offense, from a fine of up to $5,000 to revocation;

(s) Section 456.072(1)(hh), F.S.: Being terminated from a treatment program for impaired practitioners, which is overseen by an impaired practitioner consultant for failure to comply, without good cause, with the terms of the monitoring or treatment contract entered into by the licensee, or for not successfully completing any drug or alcohol treatment program – from a minimum fine of $300 and a stayed suspension with advocacy and demonstration of a current signed contract with PRN to a maximum fine of $2,000 and revocation of license. For a subsequent offense, a fine of up to $3,000 and suspension for two years and until the subject demonstrates to the department the ability to practice with skill and safety followed by three years probation to revocation.

(t) Section 456.072(1)(ii), F.S.: 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 – misdemeanor: from a minimum fine of $600 and one year of probation up to a fine of $3,000 and revocation; felony: from a minimum fine of $1,500 and six months of suspension followed by two years of probation, up to a maximum fine of $10,000 and revocation of license. For a subsequent offense, a fine of up to $10,000 and revocation.

(u) Section 456.072(1)(jj), F.S.: 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 agreement – from a minimum fine of $300 and a letter of concern to a maximum fine of $3,500 and up to six months suspension followed by up to three years of probation. For a subsequent offense, from a minimum fine of $1,000 and two years of probation to a maximum fine of $10,000 and revocation.

(v) Section 456.072(1)(kk), F.S.: Being terminated from the state Medicaid program pursuant to Section 409.913, F.S., and 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 – from a minimum fine of $500 and a letter of concern to one year suspension and a fine of $3,000. For a subsequent offense, from a year of probation and a minimum fine of $1,000 to revocation and a fine of $10,000.

(w) 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 – misdemeanor and unintentional fraud: from a minimum fine of $600 and one year of probation up to a fine of $3,000 and up to three years of probation; intentional fraud or felony: from a minimum fine of $10,000 and three months suspension followed by two years probation to a maximum fine of $10,000 and revocation. For a subsequent offense, a fine of $10,000 and revocation.

Rulemaking Authority 456.004(5), 456.079, 467.005, 467.203(4) FS. Law Implemented 456.079, 467.203 FS. History–New 7-14-94, Formerly 61E8-8.002, 59DD-8.002, Amended 10-3-06, 10-28-10,                  .

 

64B24-8.003 Citations and Mediation.

(1) The Department designates the following as citation violations:

(a) Failure to pay the one time fee assessment by December 31, 2008 – $100 fine.

(b) Failure to notify the Department of a change of address within 60 days –$250 $100 fine.

(c) First-time failure to complete the continuing education requirements within the biennium as required by Section 467.012(3), F.S. and Rule 64B24-6.001, F.A.C. – $25 fine per continuing education hour plus proof of completing the continuing education within three months.

(d) First-time engagement in unprofessional conduct under Section 467.203(1)(f), F.S., where no patient harm occurred – $300 fine.

(e) First-time failure to maintain proof of professional liability insurance for less than three months – $200 fine.

(f) First-time printing or publication of a misleading or deceptive advertisement – $150 fine.

(b)(g) Failure to identify through written notice, or name tag, or orally to a patient that the practitioner is a licensed midwife – $100 fine.

(2) through (3) No change.

(4) The Department designates the following as appropriate for mediation which is an informal, non-adversarial process to encourage and facilitate resolution of a legally-sufficient complaint: 

(a) Failure to timely file the annual report, provided that the report is filed within 30 days of the due date;

(b) Failure to report address changes, provided the failure does not constitute failure to comply with an order of the Department.

Rulemaking Authority 456.072(3), 456.077, 467.005 FS. Law Implemented 456.072(3), 456.07, 456.079, 467.203 FS. History–New 2-2-09, Amended                .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Claudia Kemp

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

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: November 18, 2015

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: August 12, 2015