64B24-8.002: Disciplinary Action and Guidelines
PURPOSE AND EFFECT: To update the rule.
SUMMARY: This rule sets forth the guidelines for disciplining midwife licensees for violations of Sections 467.203(1) and 456.072(1), Florida Statutes. It removes outdated provisions.
SUMMARY OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 456.004(5), 467.005 FS.
LAW IMPLEMENTED: 456.079, 467.203 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Pamela King, Executive Director, Council of Licensed Midwifery, 4052 Bald Cypress Way, Bin #C06, Tallahassee, Florida 32399-3256
THE FULL TEXT OF THE PROPOSED RULE IS:
64B24-8.002 Disciplinary Action and Guidelines.
(1) The department shall take into consideration the following factors in determining the appropriate disciplinary action to be imposed:
(a) The severity of the offense;
(a)(b) The danger to the public;
(b)(c) The number of repetitions of offenses;
(c)(d) The length of time since date of violation;
(d)(e) The number of disciplinary actions taken against the licensee;
(e)(f) The length of time licensee has practiced;
(f)(g) The actual damage, physical or otherwise, to the patient;
(g)(h) The deterrent effect of the penalty imposed;
(h)(i) Any efforts for rehabilitation;
(i)(j) Any other mitigating or aggravating circumstances.
(2) Except as provided in (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. The following acts shall be grounds for disciplinary action as set forth in this rule: 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
(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)(y), 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 Willfully or repeatedly violating any provision of this chapter, any rule of the department, or 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 (cc), F.S.: Violating any provision of this chapter or chapter 456, 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)(j) 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;
(k) Using the title “midwife”, “licensed midwife” or any other title or designation which implies that a person is licensed to practice midwifery, unless such a person is duly licensed as provided in this chapter or in Chapter 464, Florida Statutes.
(l) Knowingly concealing information relating to the enforcement of this chapter or rules adopted pursuant thereto.
(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)(u), 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)(w), 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)(aa), 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)(bb), 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)(gg), 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.
(3) When the department finds any person guilty of any of the grounds set forth in Section 467.203, Florida Statutes, it may enter an order imposing one or more of the following penalties:
(a) Revocation;
(b) Suspension of a license not to exceed 60 days;
(c) Imposition of administrative fine not to exceed $1000 for each count or separate offense:
1. If an applicant for licensure by endorsement has worked as a midwife in
2. If an applicant for reactivation has worked while on inactive status.
(d) Issuance of a reprimand;
(e) Placing the midwife on probation for a period of time subject to such conditions as the department may specify;
(f) Requiring the midwife to submit to one or more of the following requirements:
1. Requiring the midwife to submit to treatment.
2. Requiring the midwife to attend continuing education courses.
3. Requiring the midwife to submit to reexamination, and to work under the supervision of a preceptor as defined in subsection 64B24-4.001(12), F.A.C.
(4) The following guidelines shall be used for the disposition of disciplinary cases involving specific types of violations:
(a) For failure to submit, upon request, to the department any reports relating to the practice of midwifery. For a first offense, a reprimand and a fine up to $100 per offense; as a second offense, probation and a fine up to $200; and as a third offense, suspension and a fine up to $500 per offense; or any combination thereof.
(b) For intentional misrepresentation of facts regarding:
1. Reports of patient care.
2. Patient records.
3. Informed consent forms.
4. Birth certificates.
5. Emergency treatment.
6. Any information on an application for licensure or renewal. For a first offense, a reprimand, a fine up to $100, and probation or suspension; as a second offense, probation or revocation and a fine up to $200; and as a third offense, revocation and a fine up to $500 per offense; or any combination thereof.
(c) For violations related to standards of practice regarding:
1. Accepting patients at risk without consultation pursuant to subsections 64B24-7.004(1) and (2), F.A.C.
2. Administering medications or treatment not permitted by rule or law.
3. Any act of negligence or departure from standards of practice established by law or rule.
4. Permitting unlicensed persons to practice midwifery as defined under Section 467.003(8), Florida Statutes, except in an emergency or unless the licensed midwife is precepting a student enrolled in an approved midwifery program. For a first offense, a reprimand, a fine up to $200, probation or suspension; for a second offense, probation and a fine up to $400 per offense, a requirement to work under the supervision of a preceptor during probationary period until deemed safe to practice alone or revocation, or any combination thereof; for a third offense, a fine up to $1000 and revocation.
(d) Failure to report any person known to be in violation of the midwifery act or rules, or false, deceptive, or misleading advertising: For a first offense, a reprimand and a fine up to $200 per offense; as a second offense, probation or suspension and a fine up to $400 per offense, or any combination thereof; as a third offense, a fine up to $1000 and revocation.
(e) Procuring or renewing a license through fraud will include a penalty of denial of license and a fine up to $1000.
(f) Non-compliance with the rules of Public-Health and Maternal-Infant Hygiene:
1. Failure to use eye prophylaxis or to indicate reason for same pursuant to paragraph 64B24-7.009(1)(f), F.A.C.
2. Failure to file certificates of live birth with the local registrar pursuant to subsection 64B24-7.009(9), F.A.C.
3. Failure to inform parents of infant metabolic screening as required in subsection 64B24-7.009(8), F.A.C. For a first offense, a reprimand and a fine up to $100 per offense; for a second offense, probation and a fine up to $200 per offense; for a third offense, suspension or revocation and a fine up to $500 per offense.
(g) For violations related to standards for training by Midwifery Schools: For a first offense, a reprimand with a corrective action plan to be implemented within 90 days and a penalty of $50 for each day such violation continues without correction; as a second offense, failure to take corrective action will result in suspension of training activities and a fine of $100 for each day such violation continues; as a third offense, repeat violations will result in permanent cessation of training activities and a fine not to exceed $1000.
Specific Authority 456.004(5), 467.005 FS. Law Implemented 456.079, 467.201, 467.203 FS. History–New 7-14-94, Formerly 61E8-8.002, 59DD-8.002, Amended _________.