64B15-19.0065. Notices of Noncompliance; Minor Violations

(1) For purposes of Section 456.073(3), F.S., the Board finds the following list to be first time minor offenses. A minor offense is defined as an offense where there is no danger to public health, safety, and welfare and no indication of a serious inability to practice the profession, appropriate for notices of noncompliance. A notice of noncompliance in lieu of other action is authorized only if the violation is not a repeat violation and only if there is only one violation. If there are multiple violations, then the Department may not issue a notice of noncompliance, but must prosecute the violations under the other provisions of Section 456.073, F.S. There are only two exceptions to the prohibition against use of a notice of noncompliance when there is more than one violation. The first is that a notice of noncompliance may be issued to a registered dispensing practitioner for a first time violation of one or more of the violations listed in paragraph (2)(b), subparagraphs 2., 3., if there is no evidence of diversion. The second is that a notice of noncompliance may be issued to a licensee for a first time violation of one or both of the violations listed in paragraph (2)(c). Failure of a licensee to take action in correcting the violation within 15 days after notice may result in the institution of regular disciplinary proceedings.

(2) The following violations are those for which the Board authorizes the Department to issue a notice of noncompliance.

(a) Advertising offenses specified herein.

1. Section 459.015(1)(d), F.S., which provides for physician discipline when the physician is found guilty of false, deceptive, or misleading advertising. The only type of false, deceptive, or misleading advertising which would be resolved by a notice of noncompliance would be advertising which is false, deceptive, or misleading because it fails to list the name of the physician conspicuously in the advertisement contrary to subsection 64B15-14.001(2), F.A.C. This would also be a violation of Section 459.015(1)(pp), F.S., which provides for physician discipline when a physician is found guilty of, among other things, violating a rule of the board.

2. Section 459.015(1)(g), F.S., which provides for physician discipline when the physician is found guilty of failing to perform a statutory or legal obligation placed upon a licensed physician. The specific statutory obligation related to advertising, which, if not performed might merit the issuance of a notice of noncompliance, would be a failure to perform the statutory obligation set forth in Section 456.062, F.S., provides that a specific disclosure statement must appear in any advertisement for a free, discounted fee, or reduced fee service, examination or treatment by a health care practitioner licensed pursuant to Chapter 459, F.S.

(b) Failure to perform one of the following statutory or legal obligations:

1. Failing to maintain records relating to the receipt and disposition of controlled substances, and the required biennial inventory, as provided for in Section 893.07, F.S. This violation may be resolved by a notice of noncompliance only if the whereabouts of the drugs can be accounted for by other means and there is no evidence of diversion.

2. Failing to, before dispensing any drug, give the patient a written prescription and orally or in writing advise the patient that the prescription may be filled in the practitioner’s office or at any pharmacy, in violation of Section 465.0276(2)(c), F.S. This applies to dispensing practitioners only.

3. Dispensing medication without proper labeling, contrary to the provisions of Section 893.05(2), F.S. This applies to dispensing practitioners only.

4. Failing to comply with the provisions 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.

5. Failing to timely provide medical records upon written request to a patient or a patient’s legal representative within 30 days, contrary to the provisions of Section 456.057, F.S., and Rule 64B15-15.003, F.A.C. This violation may be resolved by a notice of noncompliance only if the medical records were provided to the requestor within 60 days of the request.

6. Failing to update the practitioner’s profile as required by Sections 456.039(3) and 459.008, F.S., except that a notice of noncompliance is not authorized for failing to update the practitioner profile for items in Sections 456.039(1)(a)7. and 456.039(1)(a)8., F.S.

7. Failing to submit notice to the Board when a physician enters into a formal supervisory relationship or standing orders with an emergency medical technician or paramedic licensed pursuant to Section 401.27, F.S., or when the physician enters into an established protocol with an advanced registered nurse practitioner, as set forth in Section 464.012, F.S.

8. Failure to comply with the provisions of Section 456.44(7)(c), F.S., to inform the patient of nonopioid alternatives for the treatment of pain, to discuss the advantages and disadvantages of the use of nonopioid alternatives, to provide the Department’s educational pamphlet, or to document the nonopioid alternatives in the patient’s record.

(c) Violating any of the following provisions of Chapter 459, F.S., as prohibited by Section 459.015(1)(pp), F.S.:

1. Section 459.013, F.S., which provides for criminal penalties for the practice of medicine without an active license. A notice of noncompliance would be issued for this violation only if the subject of the investigation met the following criteria: the subject must be the holder of a license to practice medicine at all time material to the matter; that license is otherwise in good standing; and that license must be renewed and placed in an active status within 90 days of becoming delinquent. If the license was delinquent for more than 90 days and the individual continued to practice, then the matter would proceed under the other provisions of section 456.073, F.S.

2. Failing to notify the Board of a change of practice location, contrary to Sections 459.008(3) and 456.035(1), F.S.

(d) Failing to submit documentation to the Department within 14 days of issuing a certification as required under Section 381.986(4)(b), F.S.

Rulemaking Authority 120.695, 456.073(3), 459.005 FS. Law Implemented 120.695, 456.073(3) FS. History–New 1-19-17, Amended 8-9-18, 11-19-19.