64B15-6.011: Disciplinary Guidelines
PURPOSE AND EFFECT: The proposed rule amendments are intended to set forth additional disciplinary guidelines for specific violations.
SUMMARY: The proposed rule amendments set forth additional guidelines and penalties for various violations.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: A Statement of Estimated Regulatory Costs has been prepared. Essentially, the Statement estimates that physician assistants who are required to pay additional fines, attend courses and perform other duties as a result of violating laws and rules will be impacted by the rule. In addition, in instances where a license is revoked, the impact may negatively affect small business due to the loss of the licensee performing services. A positive impact in the community will result in instances where a physician assistant is required to perform community service at no charge to the public. Those entities providing continuing medical education will be positively impacted by the increased revenues derived from licensees who are required to complete designated CME as a result of certain violations of laws and rules.
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: 456.079, 459.0015, 459.015(5) FS.
LAW IMPLEMENTED: 456.072, 456.079, 459.015(5), 459.022(4)(e)1., (7)(f) 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: Kaye Howerton, Executive Director, Board of Osteopathic Medicine/MQA, 4052 Bald Cypress Way, Bin #C06, Tallahassee, Florida 32399-3256
THE FULL TEXT OF THE PROPOSED RULE IS:
64B15-6.011 Disciplinary Guidelines.
(1) Purpose. Pursuant to Section 456.072, F.S., the Boards provide within this rule disciplinary guidelines which shall be imposed upon physician assistant applicants or licensees whom it regulates under Chapters 458 and 459, F.S. The purpose of this rule is to notify such applicants and licensees of the ranges of penalties which will routinely be imposed unless the Boards find it necessary to deviate from the guidelines for the stated reasons given within this rule. The ranges of penalties provided below are based upon a single count violation of each provision listed; for multiple counts of the violated provisions or a combination of the violations the Boards shall consider a higher penalty than that for a single, isolated violation. Each range includes the lowest and highest penalty and all penalties falling between, including continuing medical education (CME). The purposes of the imposition of discipline are to punish the applicants or licensees for violations and to deter them from future violations; to offer opportunities for rehabilitation, when appropriate; and to deter other applicants or licensees from violations.
(2) Violations and Range of Penalties. In imposing discipline upon physician assistant applicants and licensees, in proceedings pursuant to Sections 120.57(1) and (2), F.S., the Board shall act in accordance with the following disciplinary guidelines and shall impose a penalty within the range corresponding to the violations set forth below. The verbal identification of offenses are descriptive only; the full language of each statutory provision cited must be consulted in order to determine the conduct included.
VIOLATIONS |
RECOMMENDED PENALTIES | |
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First Offense |
Subsequent Offenses |
(a) Attempting to obtain a license or certificate by bribery, fraud or through an error of the Department or the Board. (Section 459.015(1)(a), F.S.); (Section 456.072(1)(h), F.S.) |
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1. Attempting to obtain an initial license by bribery or fraud. |
1. Denial of application and a $10,000.00 fine. |
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2. Attempting to renew a license by bribery or fraud. |
2. Revocation of the license and payment of a $5,000.00 fine to revocation and a $10,000 fine. |
2. Revocation and a $10,000.00 fine. |
3. Obtaining or renewing a license by bribery or fraud. |
3. Revocation of the license and payment of a $5,000.00 fine to revocation and a $10,000 fine. |
3. Revocation and a $10,000.00 fine. |
4. Obtaining or renewing a license through error of the Department of the Board. |
4. Revocation. |
4. Revocation. |
(b) No change. |
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1. Action taken against license by another jurisdiction relating to healthcare fraud in dollar amounts in excess of $5,000.00. |
1. Revocation |
1. From |
2. Action taken against license by another jurisdiction relating to healthcare fraud in dollar amounts of $5,000.00 or less. |
2. From an administrative fine ranging from $1,000.00 to $5,000.00, 100 hours of community service, and a reprimand through suspension of the license, or in the case of application for licensure, denial of licensure. |
2. From an administrative fine ranging from $2,500.00 to $5,000.00, 200 hours of community service and suspension of the license, followed by a period of probation to revocation, or in the case of application for licensure, denial of licensure. |
(c) Guilt of crime directly relating to practice or ability to practice. (Section 459.015(1)(c), F.S.); (Section 456.072(1)(c), F.S.) |
(c) From reprimand to revocation or denial of license, |
(c) From probation to revocation or denial of the license, |
1. Involving a crime directly related to healthcare fraud in dollar amounts in excess of $5,000.00. |
1. Revocation |
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2. Involving a crime directly related to healthcare fraud in dollar amounts of $5,000.00 or less. |
2. From an administrative fine ranging from $1,000.00 to $5,000.00, 100 hours of community service, and a reprimand through suspension of the license, or in case of application for licensure, denial of licensure. |
2. From an administrative fine ranging from $2,500.00 to $5,000.00, 200 hours of community service, and suspension of the license, followed by a period of probation to revocation, or in case of application for licensure, denial of licensure. |
(d) False, deceptive, or misleading advertising. (Section 459.015(1)(d), F.S.) |
(d) From a letter of concern to reprimand, or denial of licensure, |
(d) From a letter of concern to reprimand or denial of licensure, |
(e) Failure to report another licensee in violation. (Section 459.015(1)(e), F.S.); (Section 456.072(1)(i), F.S.) |
(e) From a letter of concern to probation, |
(e) From reprimand to suspension or denial of licensure, |
(f) Aiding unlicensed practice. (Section 459.015(1)(f), F.S.); (Section 456.072(1)(j), F.S.) |
(f) From reprimand to suspension, followed by probation, or denial of licensure, 25 to 50 hours of community service, and an administrative fine ranging from $1,000.00 to $5,000.00. |
(f) From probation to revocation or denial of licensure, 50 to 100 hours of community service, and an administrative fine ranging from $2,500.00 to $5,000.00. |
(g) Failure to perform legal obligation. (Section 459.015(1)(g), F.S.); (Section 456.072(1)(k), F.S.) |
(g) For any offense not specifically listed herein, based upon the severity of the offense and the potential for patient harm, from a reprimand to revocation or denial of licensure, 50 hours of community service and an administrative fine from $1,000.00 to $5,000.00. |
(g) For any offense not specifically listed herein, based upon the severity of the offense and the potential for patient harm, from a reprimand to revocation or denial, from 50 to 100 hours of community service and an administrative fine from $2,500.00 to $5,000.00. |
1. through 2. No change. |
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3. Failing to disclose financial interest to patient. (Section 456.052, F.S.) |
3. A refund of fees paid by or on behalf of the patient and from an administrative fine of $1,000.00, 50 hours of community service to a reprimand, 100 hours of community service and an administrative fine of $2,500.00. |
3. A refund of fees paid by or on behalf of the patient and from a reprimand, 100 hours of community service and an administrative fine of $2,500.00 to a reprimand, 200 hours of community service and an administrative fine of $5,000.00. |
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(h) |
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1. Relating to healthcare fraud in dollar amounts in excess of $5,000.00. |
1. Revocation |
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2. Relating to healthcare fraud in dollar amounts of $5,000.00 or less. |
2. From an administrative fine ranging from $1,000.00 to $5,000.00, 50 to 100 hours of community service, and a reprimand through suspension of the license, or in case of application for licensure, denial of licensure. |
2. From an administrative fine ranging from $2,500.00 to $5,000.00, 100 to 200 hours of community service, and suspension of the license, followed by a period of probation to revocation, or in case of application for licensure, denial of licensure. |
(i) (Section 459.015(1)(j), F.S.) |
(i) |
(i) |
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(j) (Section 459.015(1)(l), F.S.); (Section 456.072(1)(u), F.S.) |
(j) |
(j) |
(k) (Section 459.015(1)(m), F.S.); (Sections 456.072(1)(a), (m), F.S.) |
(k) |
(k) |
1. No change. |
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2. Deceptive, untrue, or fraudulent representations in the practice of osteopathic medicine relating to healthcare fraud in dollar amounts of $5,000.00 or less. |
2. From an administrative fine ranging from $1,000.00 to $5,000.00, 50 to 100 hours of community service, and a reprimand through suspension of the license, or in case of application for licensure, denial of licensure. |
2. From an administrative fine ranging from $2,500.00 to $5,000.00, and suspension of the license, followed by a period of probation to revocation, 100 to 200 hours of community service, or in case of application for licensure, denial of licensure. |
(l) (Section 459.015(1)(n), F.S.) |
(l) |
(l) |
(m) (Section 459.015(1)(o), F.S.) |
(m) |
(m) |
1. No change. |
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2. Failure to keep legible written medical records relating to healthcare fraud in dollar amounts of $5,000.00 or less. |
2. From an administrative fine ranging from $1,000.00 to $5,000.00, and a reprimand, 50 to 100 hours of community service to |
2. From an administrative fine ranging from $2,500.00 to $5,000.00, and suspension of the license, followed by a period of probation, 100 to 200 hours of community service, to revocation, or in case of application for licensure, denial of licensure. |
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(n) (Section 459.015(1)(q), F.S.); (Section 456.072(1)(n), F.S.) |
(n) |
(n) |
(o) (Section 459.015(1)(r), F.S.) |
(o) |
(o) |
(p) |
(p) |
(p) |
(q) (Section 459.015(1)(t), F.S.) |
(q) |
(q) |
(r) (Section 459.015(1)(u), F.S.) |
(r) |
(r) |
(s) (Section 459.015(1)(v), F.S.) |
(s) |
(s) |
(t) (Section 459.015(1)(w), F.S.) |
(t) |
(t) |
(u) (Section 459.015(1)(x), F.S.) |
(u) |
(u) |
2. Gross Malpractice |
2. From a probation, 25 to 50 hours of community service to revocation or denial of licensure, and an administrative fine ranging from $1,000.00 to $2,500.00. |
2. From suspension followed by probation to revocation or denial, 50 to 100 hours of community service and an administrative fine ranging from $2,500.00 to $5,000.00. |
3. No change. |
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(v) (Section 459.015(1)(y), F.S.) |
(v) |
(v) |
(w) |
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(x) (Section 459.015(1)(aa), F.S.); (Section 456.072(1)(p), F.S.) |
(x) |
(x) |
(y) (Section 459.015(1)(bb), F.S.); (Sections 456.072(1)(b), (q), F.S.) |
(y) |
(y) |
2. Violation of an order of the Board. |
2. From a reprimand, 25 to 50 hours of community service |
2. From a reprimand, 50 to 100 hours of community service and an administrative fine of $2,500.00 to a reprimand and an administrative fine of $5,000.00 and probation. |
(z) (Section 459.015(1)(cc), F.S.) |
(z) |
(z) |
(aa) (Section 459.015(1)(dd), F.S.) |
(aa) |
(aa) |
(bb) (Section 459.015(1)(ee), F.S.) |
(bb) |
(bb) |
(cc) (Section 459.015(1)(kk), F.S.); (Section 456.072(1)(r), F.S.) |
(cc) |
(cc) |
(dd) (Section 459.015(1)(ll), F.S.); (Section 456.072(1)(i), F.S.) |
(dd) |
(dd) |
(ee) (Section 459.015(1)(hh), F.S.) |
(ee) |
(ee) |
(ff) (Section 459.015(1)(ii), F.S.) |
(ff) |
(ff) |
(gg) (Section 459.015(1)(jj), F.S.) |
(gg) |
(gg) |
(hh) (Section 459.015(1)(mm), F.S.) |
(hh) |
(hh) |
(ii) Violating Chapters 459, 456, F.S., or any rules adopted pursuant thereto. (459.331(1)(pp), F.S.) |
(ii) From a reprimand, 25 to 100 hours of community service, to revocation or denial and an administrative fine from $1,000.00 to $5,000.00. |
(ii) From probation, 100 to 200 hours of community service; to revocation or denial and an administrative fine from $5,000.00 to $10,000.00. |
(jj) (Section 456.018, F.S.) |
(jj) |
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(kk) 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. (Section 456.072(1)(bb), F.S.) |
(kk) From a $1,000.00 fine, a letter of concern, a minimum of five (5) hours of risk management education, and one (1) hour lecture on wrong-site surgery in the State of Florida to a $5,000.00 fine, a letter of concern, a minimum of five (5) hours of risk management education, 50 to 100 hours of community service, undergo a risk management assessment, a one (1) hour lecture on wrong-site surgery, and suspension to be followed by a term of probation. |
(kk) From a $7,500.00 fine, a reprimand, 100 to 200 hours of community service, and probation or denial to a $10,000.00 fine and revocation. |
(ll) Leaving a foreign body in a patient, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or other diagnostic procedures. (Section 456.072(1)(bb), F.S.) |
(ll) From a $1,000.00 to a $5,000.00 fine, a letter of concern, a minimum of five (5) hours of risk management education, 50 to 100 hours of community service, and a one hour lecture to the staff of a Florida licensed healthcare facility on retained foreign body objects to revocation. |
(ll) From a $7,500.00 fine, a reprimand and probation, 100 to 200 hours of community service, or denial to revocation. |
(mm) Engaging in a pattern of practice when prescribing medicinal drugs or controlled substances which demonstrates a lack of reasonable skill or safety to patients. (Section 456.072(1)(gg), F.S.) |
(mm) From reprimand to probation, 25 to 50 hours of community service and an administrative fine ranging from $1,000.00 to $5,000.00, or denial of licensure. |
(mm) From probation, 50 to 100 hours of community service to revocation or denial of licensure, and an administrative fine ranging from $2,500.00 to $5,000.00. |
(nn) Being terminated from a treatment program for impaired practitioners, for failure to comply with the terms of the monitoring or treatment contract or for not successfully completing any drug-treatment or alcohol-treatment program. (Section 456.072(1)(hh), F.S.) |
(nn) From suspension until licensee demonstrates compliance with all terms of the monitoring or treatment contract, and is able to demonstrate to the Board the ability to practice with reasonable skill and safety to be followed by a term of probation; and a fine of $1,000 to $2,500, to revocation. |
(nn) From suspension until licensee demonstrates compliance with all terms of the monitoring or treatment contract and is able to demonstrate to the Board the ability to practice with reasonable skill and safety to be followed by a term of probation; and a fine of $2,500 to $5,000, to revocation. |
(oo) Being convicted of, or entering a plea of guilty or nolo contendere to any misdemeanor or felony, regardless of adjudication, under 18 USC s. 669, ss. 285-287, s. 371, s. 1001, s. 1035, s. 1341, s. 1343, s. 1347, s. 1349, or s. 1518, or 42 USC ss. 1320a-7b, relating to the Medicaid program. (Section 456.072(1)(ii), F.S.) |
(oo) Revocation and a fine of $10,000, or in the case of application for licensure, denial of license. |
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(pp) Failing to remit the sum owed to the state for overpayment from the Medicaid program pursuant to a final order, judgment, or settlement. (456.072(1)(jj), F.S.) |
(pp) From a letter of concern to probation, and a fine of $500 to $5,000. |
(pp) From a reprimand to revocation, and a fine of $2,500 to $5,000. |
(qq) Being terminated from the state Medicaid program, or any other state Medicaid program, or the federal Medicare program. (Section 456.072(1)(kk), F.S.) |
(qq) From a letter of concern to suspension, and a fine of $1,000 to $5,000. |
(qq) From a reprimand to revocation, and a fine of $5,000 to $10,000. |
(rr) Being convicted of, or entering into a plea of guilty or nolo contendere to any misdemeanor or felony, regardless of adjudication, which relates to health care fraud. (Section 456.072(1)(ll), F.S.) |
(rr) Revocation and a fine of $10,000, or in the case of application for licensure, denial of license. |
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(3) through (4) No change.
Rulemaking Specific Authority 456.079, 459.0015, 459.015(5) FS. Law Implemented 456.072, 456.079, 459.015(5), 459.022(4)(e)1., (7)(f) FS. History–New 4-18-89, Formerly 21R-6.011, Amended 11-4-93, Formerly 61F9-6.011, 59W-6.011, Amended 6-7-98, 4-9-01, 7-13-03,________.