Florida Statutes § 456.076 — Impaired practitioner programs.

456.076 Impaired practitioner programs.—(1) As used in this section, the term:(a) “Consultant” means the individual or entity who operates an approved impaired practitioner program pursuant to a contract with the department and who is retained by the department as provided in subsection (2). (b) “Evaluator” means a state-licensed or nationally certified individual who has been approved by a consultant or the department, who has completed an evaluator training program established by the consultant, and who is therefore authorized to evaluate practitioners as part of an impaired practitioner program. (c) “Impaired practitioner” means a practitioner with an impairment. (d) “Impaired practitioner program” means a program established by the department by contract with one or more consultants to serve impaired and potentially impaired practitioners for the protection of the health, safety, and welfare of the public. (e) “Impairment” means a potentially impairing health condition that is the result of the misuse or abuse of alcohol, drugs, or both, or a mental or physical condition that could affect a practitioner’s ability to practice with skill and safety. (f) “Inability to progress” means a determination by a consultant based on a participant’s response to treatment and prognosis that the participant is unable to safely practice despite compliance with treatment requirements and his or her participant contract. (g) “Material noncompliance” means an act or omission by a participant in violation of his or her participant contract as determined by the department or consultant. (h) “Participant” means a practitioner who is participating in the impaired practitioner program by having entered into a participant contract. A practitioner ceases to be a participant when the participant contract is successfully completed or is terminated for any reason. (i) “Participant contract” means a formal written document outlining the requirements established by a consultant for a participant to successfully complete the impaired practitioner program, including the participant’s monitoring plan. (j) “Practitioner” means a person licensed, registered, certified, or regulated by the department under part III of chapter 401; chapter 457; chapter 458; chapter 459; chapter 460; chapter 461; chapter 462; chapter 463; chapter 464; chapter 465; chapter 466; chapter 467; part I, part II, part III, part V, part X, part XIII, or part XIV of chapter 468; chapter 478; chapter 480; part I or part II of chapter 483; chapter 484; chapter 486; chapter 490; or chapter 491; or an applicant for a license, registration, or certification under the same laws. (k) “Referral” means a practitioner who has been referred, either as a self-referral or otherwise, or reported to a consultant for impaired practitioner program services, but who is not under a participant contract. (l) “Treatment program” means a department-approved or consultant-approved residential, intensive outpatient, partial hospitalization, or other program through which an impaired practitioner is treated based on the impaired practitioner’s diagnosis and the treatment plan approved by the consultant. (m) “Treatment provider” means a department-approved or consultant-approved residential state-licensed or nationally certified individual who provides treatment to an impaired practitioner based on the practitioner’s individual diagnosis and a treatment plan approved by the consultant. (2) The department may retain one or more consultants to operate its impaired practitioner program. Each consultant must be:(a) A practitioner licensed under chapter 458, chapter 459, or part I of chapter 464; or (b) An entity that employs:1. A medical director who is licensed under chapter 458 or chapter 459; or 2. An executive director who is licensed under part I of chapter 464. (3) The terms and conditions of the impaired practitioner program must be established by the department by contract with a consultant for the protection of the health, safety, and welfare of the public and must provide, at a minimum, that the consultant:(a) Accepts referrals; (b) Arranges for the evaluation and treatment of impaired practitioners by a treatment provider when the consultant deems such evaluation and treatment necessary; (c) Monitors the recovery progress and status of impaired practitioners to ensure that such practitioners are able to practice their profession with skill and safety. Such monitoring must continue until the consultant or department concludes that monitoring by the consultant is no longer required for the protection of the public or until the practitioner’s participation in the program is terminated for material noncompliance or inability to progress; and (d) Does not directly evaluate, treat, or otherwise provide patient care to a practitioner in the operation of the impaired practitioner program. (4) The department shall specify, in its contract with each consultant, the types of licenses, registrations, or certifications of the practitioners to be served by that consultant. (5) A consultant shall enter into a participant contract with an impaired practitioner and shall establish the terms of monitoring and shall include the terms in a participant contract. In establishing the terms of monitoring, the consultant may consider the recommendations of one or more approved evaluators, treatment programs, or treatment providers. A consultant may modify the terms of monitoring if the consultant concludes, through the course of monitoring, that extended, additional, or amended terms of monitoring are required for the protection of the health, safety, and welfare of the public. If the impaired practitioner is an audiologist or a speech-language pathologist practicing under the Audiology and Speech-Language Pathology Interstate Compact pursuant to s. 468.1335, a physical therapist or physical therapist assistant practicing under the Physical Therapy Licensure Compact pursuant to s. 486.112, a psychologist practicing under the Psychology Interjurisdictional Compact pursuant to s. 490.0075, or a health care practitioner practicing under the Professional Counselors Licensure Compact pursuant to s. 491.017, the terms of the monitoring contract must include the impaired practitioner’s withdrawal from all practice under the compact unless authorized by a member state. (6) A consultant is not required to be licensed as a substance abuse provider or mental health treatment provider under chapter 394, chapter 395, or chapter 397 for purposes of providing services under this program. (7) Each consultant shall assist the department and licensure boards on matters of impaired practitioners, including the determination of whether a practitioner is, in fact, impaired, as specified in the consultant’s contract with the department. (8) Before issuing an approval of, or intent to deny, an application for licensure, each board and profession within the Division of Medical Quality Assurance may delegate to its chair or other designee its authority to determine that an applicant for licensure under its jurisdiction may have an impairment. Upon such determination, the chair or other designee may refer the applicant to the consultant to facilitate an evaluation before the board issues an approval of, or intent to deny, his or her application. If the applicant agrees to be evaluated, the department’s deadline for approving or denying the application pursuant to s. 120.60(1) is tolled until the evaluation is completed and the result of the evaluation and recommendation is communicated to the board by the consultant. If the applicant declines to be evaluated, the board shall issue an approval of, or intent to deny, the applicant’s application notwithstanding the lack of an evaluation and recommendation by the consultant. (9)(a) Except as provided in paragraph (b), when the department receives a legally sufficient complaint alleging that a practitioner has an impairment and no complaint exists against the practitioner other than impairment, the department shall refer the practitioner to the consultant, along with all information in the department’s possession relating to the impairment. The impairment does not constitute grounds for discipline pursuant to s. 456.072 or the applicable practice act if:1. The practitioner has acknowledged the impairment; 2. The practitioner becomes a participant in an impaired practitioner program and successfully completes a participant contract under terms established by the consultant; 3. The practitioner has voluntarily withdrawn from practice or has limited the scope of his or her practice if required by the consultant; 4. The practitioner has provided to the consultant, or has authorized the consultant to obtain, all records and information relating to the impairment from any source and all other medical records of the practitioner requested by the consultant; and 5. The practitioner has authorized the consultant, in the event of the practitioner’s termination from the impaired practitioner program, to report the termination to the department and provide the department with copies of all information in the consultant’s possession relating to the practitioner. (b) For a practitioner employed by a governmental entity who is also certified by the department pursuant to part III of chapter 401, the department may not refer the practitioner to the consultant, as described in paragraph (a), when the practitioner has already been referred by his or her employer to an employee assistance program used by the governmental entity. If the practitioner fails to satisfactorily complete the employee assistance program or his or her employment is terminated, the employer shall immediately notify the department, which shall then refer the practitioner to the consultant as provided in paragraph (a). (10) To encourage practitioners who are or may be impaired to voluntarily self-refer to a consultant, the consultant may not provide information to the department relating to a self-referring participant if the consultant has no knowledge of a pending department investigation, complaint, or disciplinary action against the participant and if the participant is in compliance and making progress with the terms of the impaired practitioner program and contract, unless authorized by the participant. (11) In any disciplinary action for a violation other than impairment in which a practitioner establishes the violation for which the practitioner is being prosecuted was due to or connected with impairment and further establishes the practitioner is satisfactorily progressing through or has successfully completed an impaired practitioner program pursuant to this section, such information may be considered by the board, or the department when there is no board, as a mitigating factor in determining the appropriate penalty. This subsection does not limit mitigating factors the board may consider. (12)(a) Upon request by the consultant, and with the authorization of the practitioner when required by law, an approved evaluator, treatment program, or treatment provider shall disclose to the consultant all information in its possession regarding a referral or participant. Failure to provide such information to the consultant is grounds for withdrawal of approval of such evaluator, treatment program, or treatment provider. (b) When a referral or participant is terminated from the impaired practitioner program for material noncompliance with a participant contract, inability to progress, or any other reason than completion of the program, the consultant shall disclose all information in the consultant’s possession relating to the practitioner to the department. Such disclosure shall constitute a complaint pursuant to the general provisions of s. 456.073. In addition, whenever the consultant concludes that impairment affects a practitioner’s practice and constitutes an immediate, serious danger to the public health, safety, or welfare, the consultant shall immediately communicate such conclusion to the department and disclose all information in the consultant’s possession relating to the practitioner to the department. (13) All information obtained by the consultant pursuant to this section is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. (14) The provisions of s. 766.101 apply to any consultant and the consultant’s directors, officers, employees, or agents in regard to providing information relating to a participant to a medical review committee if the participant authorizes such disclosure. (15)(a) A consultant retained pursuant to this section and a consultant’s directors, officers, employees, or agents shall be considered agents of the department for purposes of s. 768.28 while acting within the scope of the consultant’s duties under the contract with the department. (b) In accordance with s. 284.385, the Department of Financial Services shall defend any claim, suit, action, or proceeding, including a claim, suit, action, or proceeding for injunctive, affirmative, or declaratory relief, against the consultant, or the consultant’s directors, officers, employees, and agents, brought as the result of any action or omission relating to the impaired practitioner program. (16) If a consultant retained by the department pursuant to this section is also retained by another state agency to operate an impaired practitioner program for that agency, this section also applies to the consultant’s operation of an impaired practitioner program for that agency. (17) A consultant may disclose to a referral or participant, or to the legal representative of the referral or participant, the documents, records, or other information from the consultant’s file, including information received by the consultant from other sources; information on the terms required for the referral’s or participant’s monitoring contract, the referral’s or participant’s progress or inability to progress, or the referral’s or participant’s discharge or termination; information supporting the conclusion of material noncompliance; or any other information required by law. The consultant must disclose to the department, upon the department’s request, whether an applicant for a multistate license under s. 464.0095 is participating in a treatment program and must report to the department when a nurse holding a multistate license under s. 464.0095 enters a treatment program. A nurse holding a multistate license pursuant to s. 464.0095 must report to the department within 2 business days after entering a treatment program pursuant to this section. If a consultant discloses information to the department in accordance with this chapter, a referral or participant, or his or her legal representative, may obtain a complete copy of the consultant’s file from the consultant or the department under s. 456.073. (18)(a) The consultant may contract with a school or program to provide impaired practitioner program services to a student enrolled for the purpose of preparing for licensure as a health care practitioner as defined in this chapter or as a veterinarian under chapter 474 if the student has or is suspected of having an impairment. The department is not responsible for paying for the care provided by approved treatment providers or approved treatment programs or for the services provided by a consultant to a student. (b) A medical school accredited by the Liaison Committee on Medical Education or the Commission on Osteopathic College Accreditation, or another school providing for the education of students enrolled in preparation for licensure as a health care practitioner as defined in this chapter, or a veterinarian under chapter 474, which is governed by accreditation standards requiring notice and the provision of due process procedures to students, is not liable in any civil action for referring a student to the consultant retained by the department or for disciplinary actions that adversely affect the status of a student when the disciplinary actions are instituted in reasonable reliance on the recommendations, reports, or conclusions provided by such consultant, if the school, in referring the student or taking disciplinary action, adheres to the due process procedures adopted by the applicable accreditation entities and if the school committed no intentional fraud in carrying out the provisions of this section.