The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: CS/CS/HB 861
INTRODUCER: Health and Human Services Committee; Professions and Public Health Subcommittee;
and Representative Massullo
SUBJECT: Medical Specialty Designations
DATE: March 7, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Brown Phelps RC Pre-meeting
I. Summary:
CS/CS/HB 861 creates s. 456.072(1)(tt), F.S., to provide a new behavior that, if carried out by a
licensed health care practitioner, constitutes grounds for which the disciplinary actions contained
in s. 456.072(2), F.S., may be imposed on the practitioner.
The specific behavior created under the bill as new grounds for discipline is the act of using a
term designating a medical specialty for which the Accreditation Council for Graduate Medical
Education or the American Osteopathic Association accredits or recognizes as a residency or
fellowship program, unless one or more of three exceptions applies.
The bill provides that the Department of Health (DOH) must enforce the bill’s provisions and
has the same enforcement authority as an applicable board.
The bill authorizes the DOH to adopt rules to implement the bill’s provisions.
The bill provides an effective date of July 1, 2022.
II. Present Situation:
Licensure and Regulation of Health Care Practitioners
The Division of Medical Quality Assurance (MQA), within the DOH, has general regulatory
authority over health care practitioners.
1
The MQA works in conjunction with 22 regulatory
1
Pursuant to s. 456.001(4), F.S., health care practitioners are defined to include acupuncturists, physicians, physician
assistants, chiropractors, podiatrists, naturopaths, dentists, dental hygienists, optometrists, nurses, nursing assistants,
pharmacists, midwives, speech language pathologists, nursing home administrators, occupational therapists, respiratory
therapists, dieticians, athletic trainers, orthotists, prosthetists, electrologists, massage therapists, clinical laboratory personnel,
medical physicists, dispensers of optical devices or hearing aids, physical therapists, psychologists, social workers,
counselors, and psychotherapists, among others.
REVISED: BILL: CS/CS/HB 861 Page 2
boards and four councils to license and regulate seven types of health care facilities and more
than 40 health care professions.
2
Each profession is regulated by an individual practice act and
by ch. 456, F.S., which provides general regulatory and licensure authority for the MQA. The
MQA is statutorily responsible for the following boards and professions established within the
division:
3
The Board of Acupuncture, created under ch. 457, F.S.;
The Board of Medicine, created under ch. 458, F.S.;
The Board of Osteopathic Medicine, created under ch. 459, F.S.;
The Board of Chiropractic Medicine, created under ch. 460, F.S.;
The Board of Podiatric Medicine, created under ch. 461, F.S.;
Naturopathy, as provided under ch. 462, F.S.;
The Board of Optometry, created under ch. 463, F.S.;
The Board of Nursing, created under part I of ch. 464, F.S.;
Nursing assistants, as provided under part II of ch. 464, F.S.;
The Board of Pharmacy, created under ch. 465, F.S.;
The Board of Dentistry, created under ch. 466, F.S.;
Midwifery, as provided under ch. 467, F.S.;
The Board of Speech-Language Pathology and Audiology, created under part I of ch. 468,
F.S.;
The Board of Nursing Home Administrators, created under part II of ch. 468, F.S.;
The Board of Occupational Therapy, created under part III of ch. 468, F.S.;
Respiratory therapy, as provided under part V of ch. 468, F.S.;
Dietetics and nutrition practice, as provided under part X of ch. 468, F.S.;
The Board of Athletic Training, created under part XIII of ch. 468, F.S.;
The Board of Orthotists and Prosthetists, created under part XIV of ch. 468, F.S.;
Electrolysis, as provided under ch. 478, F.S.;
The Board of Massage Therapy, created under ch. 480, F.S.;
The Board of Clinical Laboratory Personnel, created under part I of ch. 483, F.S.;
Medical physicists, as provided under part II of ch. 483, F.S.;
The Board of Opticianry, created under part I of ch. 484, F.S.;
The Board of Hearing Aid Specialists, created under part II of ch. 484, F.S.;
The Board of Physical Therapy Practice, created under ch. 486, F.S.;
The Board of Psychology, created under ch. 490, F.S.;
School psychologists, as provided under ch. 490, F.S.;
The Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health
Counseling, created under ch. 491, F.S.; and
Emergency medical technicians and paramedics, as provided under part III of ch. 401, F.S.
The DOH and the practitioner boards have different roles in the regulatory system. Boards
establish practice standards by rule, pursuant to statutory authority and directives. The DOH
2
Florida Department of Health, Division of Medical Quality Assurance, Annual Report and Long-Range Plan, Fiscal Year
2019-2020, p. 5, http://www.floridahealth.gov/licensing-and-regulation/reports-and-publications/_documents/2019-2020-
annual-report.pdf (last visited Mar. 7, 2022).
3
Section 456.001(4), F.S. BILL: CS/CS/HB 861 Page 3
receives and investigates complaints about practitioners, and prosecutes cases for disciplinary
action against practitioners.
The DOH, on behalf of the professional boards, investigates complaints against practitioners.
4
Once an investigation is complete, the DOH presents the investigatory findings to the boards.
The DOH recommends a course of action to the appropriate board’s probable cause panel which
may include:
5
Having the file reviewed by an expert;
Issuing a closing order; or
Filing an administrative complaint.
The boards determine the course of action and any disciplinary action to take against a
practitioner.
6
For professions in which there is no board, the DOH determines the action and
discipline to take against a practitioner and issues the final orders.
7
The DOH is responsible for
ensuring that licensees comply with the terms and penalties imposed by the boards.
8
If a case is
appealed, DOH attorneys defend the final actions of the boards before the appropriate appellate
court.
9
The different DOH and board roles apply to all statutory grounds for discipline against a
practitioner. Under current law, the DOH takes on the disciplinary functions of a board only for
practitioner types that do not have a board. Currently, the DOH itself takes no final disciplinary
action against practitioners for which there is a board.
Board Certification and Florida Licensure
The DOH does not license health care practitioners by specialty or subspecialty; rather,
practitioners become board-certified in specialties by private, national specialty boards, such as
the American Board of Medical Specialties (ABMS), the Accreditation Board for Specialty
Nursing Certification, and the American Board of Dental Specialties.
10
Prohibitions
Current law limits which health care practitioners may hold themselves out as board-certified
specialists. An allopathic physician may not hold himself or herself out as a board-certified
specialist unless he or she has received formal recognition as a specialist from a specialty board
4
Department of Health, Investigative Services, http://www.floridahealth.gov/licensing-and-regulation/enforcement/admin-
complaint-process/isu.html (last visited Mar. 7, 2022).
5
Department of Health, Prosecution Services, http://www.floridahealth.gov/licensing-and-regulation/enforcement/admin-
complaint-process/psu.html (last visited Mar. 7, 2022).
6
Section 456.072(2), F.S.
7
Professions which do not have a board include naturopathy, nursing assistants, midwifery, respiratory therapy, dietetics and
nutrition, electrolysis, medical physicists, and school psychologists.
8
Supra, note 5.
9
Id.
10
Examples of specialties include dermatology, emergency medicine, ophthalmology, pediatric medicine, certified registered
nurse anesthetist, clinical nurse specialist, cardiac nurse, nurse practitioner, endodontics, orthodontics, and pediatric dentistry. BILL: CS/CS/HB 861 Page 4
of the ABMS or other recognizing agency
11
approved by the Board of Medicine.
12
Additionally,
an allopathic physician may not hold himself or herself out as a board-certified specialist in
dermatology unless the recognizing agency, whether authorized in statute or by rule, is
triennially reviewed and reauthorized by the Board of Medicine.
13
Similarly, an osteopathic physician may not hold himself or herself out as a board-certified
specialist unless he or she has successfully completed the requirements for certification by the
American Osteopathic Association (AOA) or the Accreditation Council on Graduate Medical
Education (ACGME) and is certified as a specialist by a certifying agency
14
approved by the
board.
15
A dentist may not hold himself or herself out as a specialist, or advertise membership in or
specialty recognition by an accrediting organization, unless the dentist has completed a specialty
education program approved by the American Dental Association and the Commission on Dental
Accreditation and the dentist is:
16
Eligible for examination by a national specialty board recognized by the American Dental
Association; or
Is a diplomate of a national specialty board recognized by the American Dental Association.
If a dentist announces or advertises a specialty practice for which there is not an approved
accrediting organization, the dentist must clearly state that the specialty is not recognized or that
the accrediting organization has not been approved by the American Dental Association or the
Florida Board of Dentistry.
17
Additionally, an advanced practice registered nurse (APRN) may not advertise or hold himself or
herself out as a specialist for which he or she has not received certification.
18
By rule, the Board of Chiropractic Medicine (BCM) prohibits chiropractors from using
deceptive, fraudulent, and misleading advertising. However, the BCM permits chiropractors to
advertise that he or she has attained Diplomate status in a chiropractic specialty area recognized
by the BCM. BCM recognized specialties include those which are recognized by the Councils of
the American Chiropractic Association, the International Chiropractic Association, the
International Academy of Clinical Neurology, or the International Chiropractic Pediatric
Association.
19
11
The Board of Medicine has approved the specialty boards of the ABMS as recognizing agencies. See Rule 64B8-
11.001(1)(f), F.A.C.
12
Section 458.3312, F.S.
13
Id.
14
The osteopathic board has approved the specialty boards of the ABMS and AOA as recognizing agencies. Rule 64B15-
14.001(h), F.A.C.
15
Section 459.0152, F.S.
16
Section 466.0282, F.S. A dentist may also hold himself or herself out as a specialist if the dentist has continuously held
himself or herself out as a specialist since December 31, 1964, in a specialty recognized by the American Dental Association.
17
Section 466.0282(3), F.S.
18
Section 464.018(1)(s), F.S.
19
Rule 64B2-15.001(2)(e), F.A.C. Examples of chiropractic specialties include chiropractic acupuncture, chiropractic
internist, chiropractic and clinical nutrition, radiology chiropractic, and pediatric chiropractors. BILL: CS/CS/HB 861 Page 5
Health Care Practitioners: Specialty Designations
Section 456.072, F.S., authorizes a regulatory board or DOH, if there is no board, to discipline a
health care practitioner’s licensure for a number of offenses, including but not limited to:
Making misleading, deceptive, or fraudulent representations in or related to the practice of
the licensee’s profession; or
Failing to identify through writing or orally to a patient the type of license under which the
practitioner is practicing.
Using a term designating a medical specialty unless the practitioner has completed a residency or
fellowship program accredited or recognized by the ACGME or the AOA in such specialty is not
ground for discipline under current law.
If the board or DOH finds that a licensee committed a violation, the board or DOH may:
20
Refuse to certify, or to certify with restrictions, an application for a license;
Suspend or permanently revoke a license;
Place a restriction on the licensee’s practice or license;
Impose an administrative fine not to exceed $10,000 for each count or separate offense; if the
violation is for fraud or making a false representation, a fine of $10,000 must be imposed for
each count or separate offense;
Issue a reprimand or letter of concern;
Place the licensee on probation;
Require a corrective action plan;
Refund fees billed and collected from the patient or third party on behalf of the patient; or
Require the licensee to undergo remedial education.
Anesthesiology
Under chs. 458 and 459, F.S., “anesthesiology” is defined as the practice of medicine that
specializes in the relief of pain during and after surgical procedures and childbirth, during certain
chronic disease processes, and during resuscitation and critical care of patients in the operating
room and intensive care environments.
21
The term “anesthesiologist” is defined as an allopathic or osteopathic physician who holds an
active, unrestricted license; who has successfully completed an anesthesiology training program
approved by the Accreditation Council on Graduate Medical Education or its equivalent; and
who is certified by the American Board of Anesthesiology, is eligible to take that board’s
examination, or is certified by the Board of Certification in Anesthesiology affiliated with the
American Association of Physician Specialists.
22
Nurse Anesthetists
A certified registered nurse anesthetist (CRNA) is an APRN, licensed by the Board of Nursing
(BON), who specializes in anesthetic services.
20
Section 456.072(2), F.S.
21
Sections 458.3475(1)(c) and 459.023(1)(c), F.S.
22
Sections 458.3475(1)(a) and 459.023(1)(a), F.S. BILL: CS/CS/HB 861 Page 6
APRNs are regulated under part I of ch. 464, F.S., the Nurse Practice Act. The BON provides, by
rule, the eligibility criteria for applicants to be licensed as APRNs and the applicable regulatory
standards for APRN nursing practices.
23
Additionally, the BON is responsible for
administratively disciplining an APRN who commits prohibited acts.
24
In Florida “advanced or specialized nursing practice” includes, in addition to practices of
professional nursing that registered nurses are authorized to perform, advanced-level nursing acts
approved by the BON as appropriate for APRNs to perform by virtue of their post-basic
specialized education, training, and experience.
25
Advanced or specialized nursing acts may only
be performed if authorized under a supervising physician’s protocol.
26
In addition to advanced or
specialized nursing practices, APRNs are authorized to practice certain medical acts, as opposed
to nursing acts, as authorized within the framework of an established supervisory physician’s
protocol.
27
A CRNA may, to the extent authorized by established protocol approved by the medical staff of
the facility in which the anesthetic service is performed, perform any or all of the following:
Determine the health status of the patient as it relates to the risk factors and to the anesthetic
management of the patient through the performance of the general functions.
Based on history, physical assessment, and supplemental laboratory results, determine, with
the consent of the responsible physician, the appropriate type of anesthesia within the
framework of the protocol.
Order pre-anesthetic medication under the protocol.
Perform under the protocol procedures commonly used to render the patient insensible to
pain during the performance of surgical, obstetrical, therapeutic, or diagnostic clinical
procedures. These procedures include ordering and administering regional, spinal, and
general anesthesia; inhalation agents and techniques; intravenous agents and techniques; and
techniques of hypnosis.
Order or perform monitoring procedures indicated as pertinent to the anesthetic health care
management of the patient.
Support life functions during anesthesia health care, including induction and intubation
procedures, the use of appropriate mechanical supportive devices, and the management of
fluid, electrolyte, and blood component balances.
Recognize and take appropriate corrective action for abnormal patient responses to
anesthesia, adjunctive medication, or other forms of therapy.
Recognize and treat a cardiac arrhythmia while the patient is under anesthetic care.
Participate in management of the patient while in the post-anesthesia recovery area, including
ordering the administration of fluids and drugs.
Place special peripheral and central venous and arterial lines for blood sampling and
monitoring as appropriate.
23
See s. 464.004, F.S., and Fla. Admin. Code R. 64B9-3 (2020).
24
See ss. 464.018 and 456.072, F.S.
25
Section 464.003(2), F.S.
26
Section 464.012(3)-(4), F.S.
27
Id. BILL: CS/CS/HB 861 Page 7
“Nurse Anesthesiologist”
On August 8, 2019, at the general BON meeting, the BON considered requests for declaratory
statements.
28
The second request for a declaratory statement was made by John P. McDonough,
A.P.R.N., C.R.N.A., license number 3344982.
29
For the meeting, McDonough’s Petition for Declaratory Statement acknowledged that the type of
Florida nursing license he held was as an A.P.R.N., and that he was a certified registered nurse
anesthetist (C.R.N.A.), but requested that he be permitted to use the phrase “nurse
anesthesiologist” as a descriptor for him or his practice, and that the BON not subject him to
discipline under ss. 456.072 and 464.018, F.S.,
30
based on the following grounds:
A New Hampshire Board of Nursing’s Position Statement that the nomenclature, Nurse
Anesthesiologist and Certified Registered Nurse Anesthesiologist, are not title changes or an
expansion of scope of practice, but are optional, accurate descriptors;
31
and
Florida law grants no title protection to the words anesthesiologist or anesthetist.
32
The Florida Association of Nurse Anesthetists (FANA) and the Florida Medical Association, Inc.
(FMA), Florida Society of Anesthesiologists, Inc. (FSA), and Florida Osteopathic Medical
Association, Inc. (FOMA), filed timely and legally sufficient
33
motions to intervene
34
pursuant to
28
Section 120.565, F.S. Provides that, “[a]ny substantially affected person may seek a declaratory statement regarding an
agency’s opinion as to the applicability of a statutory provision as it applies to the petitioner’s particular set of circumstances.
The agency must give notice of the filing of a petition in the Florida Administrative Register, provide copies of the petition to
the board, and issue a declaratory statement or deny the petition within 90 days after the filing. The declaratory statement or
denial of the petition is then noticed in the next Florida Administrative Register, and disposition of a petition is a final agency
action.”
29
The Florida Board of Nursing, Meeting Minutes, Disciplinary Hearings & General Business, Declaratory Statements, No.
2, Aug. 8, 2019, available at https://floridasnursing.gov/meetings/minutes/2019/08-august/08072019-minutes.pdf p. 28 (last
visited Mar. 7, 2022).
30
Petition for Declaratory Statement Before the Board of Nursing, In re: John P. McDonough, A.P.R.N., C.R.N.A., Ed.D.,
filed at the Department of Health, July 10, 2019 (on file with the Senate Rules Committee).
31
New Hampshire Board of Nursing, Position Statement Regarding the use of Nurse Anesthesiologist as a communication
tool and optional descriptor for Certified Registered Nurse Anesthetists (CRNAs), Nov. 20, 2018, available at
https://static1.squarespace.com/static/5bf069ef3e2d09d0f4e0a54f/t/5f6f8a708d2cb23bb10f50a0/1601145457231/NH+BON+
NURSE+ANESTHESIOLOGIST.pdf (last visited Mar. 7, 2022).
32
Id.
33
Fla. Adm. Code R. 28-105.0027(2) and 28.106.205(2) (2019), both of which state that to be legally sufficient, a motion to
intervene in a proceeding on a petition for a declaratory statement must contain the following information: (a) The name,
address, the e-mail address, and facsimile number, if any, of the intervenor; if the intervenor is not represented by an attorney
or qualified representative;(b) The name, address, e-mail address, telephone number, and any facsimile number of the
intervener’s attorney or qualified representative, if any; (c) Allegations sufficient to demonstrate that the intervenor is entitled
to participate in the proceeding as a matter of constitutional or statutory right or pursuant to agency rule, or that the
substantial interests of the intervenor are subject to determination or will be affected by the declaratory statement; (d) The
signature of the intervener or intervener’s attorney or qualified representative; and (e) The date.
34
The Florida Medical Association, Inc., Florida Society of Anesthesiologists, Inc., and Florida Osteopathic Medical
Association, Inc., Motion to Intervene In Florida Board of Nursing’s Consideration of the Petition for Declaratory Statement
in Opposition of Petitioner John P. McDonough, A.P.R.N., C.R.N.A., Ed.D., filed at the Department of Health, Aug. 1, 2019,
(on file with the Senate Rules Committee). BILL: CS/CS/HB 861 Page 8
Florida Administrative Code Rule 28-106.205.
35
The FANA’s petition
36
was in support of
petitioner’s Declaratory Statement while the motion filed jointly by the FMA, FSA, and FOMA
was in opposition.
The FMA, FSA, and FOMA argued they were entitled to participate in the proceedings, on
behalf of their members, as the substantial interests of their members – some 32,300 – could be
adversely affected by the proceeding.
37
Specifically, the FMA, FSA, and FOMA argued that the
substantial interests of their respective members would be adversely affected by the issuance of a
Declaratory Statement that petitioner could use the term “nurse anesthesiologist,” without
violating ss. 456.072 and 464.018, F.S., on the grounds that:
A substantial number of their members use the term “anesthesiologist” with the intent and
understanding that patients, and potential patients, would recognize the term to refer to them
as physicians licensed under chs. 458 or 459, F.S., not “nurse anesthetists;”
Sections 458.3475(1)(a) and 459.023(1)(a), F.S., both define the term “anesthesiologist” as a
licensed allopathic or osteopathic physician and do not include in those definitions a “nurse
anesthetist;”
The Merriam-Webster Dictionary defines an “anesthesiologist” as a “physician specializing
in anesthesiology,” not as a nurse specializing in anesthesia; and
The Legislature clearly intended a distinction between the titles to be used by physicians
practicing anesthesiology and nurses delivering anesthesia, to avoid confusion, as
s. 464.015(6), F.S., specifically states that:
o Only persons who hold valid certificates to practice as certified registered nurse
anesthetists in this state may use the title “Certified Registered Nurse Anesthetist” and
the abbreviations “C.R.N.A.” or “nurse anesthetist;” and
o Petitioner is licensed as a “registered nurse anesthetist” under s. 464.012(1)(a), F.S., and
the term “nurse anesthesiologist” is not found in statute.
At the hearing, the attorney for the BON advised the BON that, “[t]he first thing the Board
need[ed] to do [was] determine whether or not the organizations that [had] filed petitions to
intervene have standing in order to participate in the discussion of the Declaratory Statement”
38
and that:
“Basically in order to make a determination of whether an organization
has standing, they have to show that the members of their organization
would have an actual injury in fact, or suffer an immediate harm of some
sort of immediacy were the Board to issue this particular Declaratory
35
Fla. Adm. Code. R. 28-106.205 (2019), in pertinent part, provides, “Persons other than the original parties to a pending
proceeding whose substantial interest will be affected by the proceeding and who desire to become parties may move the
presiding officer for leave to intervene.”
36
Florida Association of Nurse Anesthetists Motion to Intervene, filed at the Department of Health, July 31, 2019, (on file
with the Senate Rules Committee).
37
See Florida Home Builders Association, et al., Petitioners, v. Department of Labor And Employment Security, Respondent,
412 S.2d 351 (Fla. 1982), holding that a trade association does have standing under s. 120.56(1), F.S., to challenge the
validity of an agency ruling on behalf of its members when that association fairly represents members who have been
substantially affected by the ruling.
38
Record at p. 3, ll. 13-17. Declaratory Statement, Dr. John P. McDonough, Before the Board of Nurses, State of Florida,
Department of Health, Sanibel Harbor Marriott. (on file with the Senate Rules Committee). BILL: CS/CS/HB 861 Page 9
Statement, and then the Board also has to make a determination of
whether the nature of the injury would be within the zone of interest that
the statute is addressing.”
39
However, the above special injury standard,
40
provided by board counsel to the BON to apply to
determine the organizations’ standing to intervene, based on their members’ substantial interests
being affected by the declaratory statement, was held inapplicable to trade associations in
Florida Home Builders Ass’n. v. Department of Labor and Employment Security, 412 So.2d 351
(Fla. 1982). The Florida Supreme Court, in Florida Home Builders, Ass’n., held that a trade or
professional association is able to challenge an agency action on behalf of its members, even
though each member could individually challenge the agency action, if the organization could
demonstrate that:
A substantial number of the association members, though not necessarily a majority, would
be “substantially affected” by the challenged action;
The subject matter of the challenged action is within the association’s scope of interest and
activity; and
The relief requested is appropriate for the association’s members.
41
The FANA’s motion to intervene was granted, based on the application of an incorrect standard,
without the BON making the findings required by Florida Home Builders, Ass’n. However, the
motion to intervene filed by the FMA, FSA, and FOMA was denied, also based on the
application of an incorrect standard, on the grounds that:
Their members are regulated by the Board of Medicine, not the Board of Nursing;
Nursing disciplinary guidelines were being discussed;
Their members’ licenses and discipline would not be affected by an interpretation of nursing
discipline;
42
and
Their members are not regulated by the Nurse Practice Act.
A motion was made to approve McDonough’s Petition for Declaratory Statement, and it passed
unanimously. According to the BON’s approval, McDonough may use of the term “nurse
anesthesiologist” as a descriptor, and such use is not grounds for discipline against his nursing
license. The final order, DOH-19-1500-DS-MQA, was issued September 13, 2019.
43
However, while s. 120.565, F.S., provides that any person may seek a declaratory statement
regarding the potential impact of a statute, rule or agency opinion on a petitioner’s particular
situation, approval or denial of the petition only applies to the petitioner. It is not a method of
obtaining a policy statement from a board of general applicability.
44
News media have reported
that the BON’s Declaratory Statement in favor of McDonough has created significant concern
39
Id. p. 3-4, ll. 22- 25, 1-6.
40
United States Steel Corp. v. Save Sand Key, Inc., 303 So.2d 9 (Fla. 1974).
41
Florida Home Builders Ass’n. v. Department of Labor and Employment Security, 412 So.2d 351 (Fla. 1982), pp. 353-354.
42
Record at p. 7, ll. 1-13. Declaratory Statement, Dr. John P. McDonough, Before the Board of Nurses, State of Florida,
Department of Health, Sanibel Harbor Marriott. (on file with the Senate Rules Committee).
43
State of Florida Board of Nursing, Final Order, Sept. 13, 2019, available at https://www.floridahealth.gov/licensing-and-
regulation/declaratory/_documents/nursing/DOH-19-1500-DS.pdf (last visited Mar. 7, 2022).
44
Florida Department of Health, Board of Nursing, What is a Declaratory Statement?, available at
https://floridasnursing.gov/help-center/what-is-a-declaratory-statement/ (last visited Mar. 7, 2022). BILL: CS/CS/HB 861 Page 10
for patient safety and the potential for confusion in the use of the moniker “anesthesiologist”
among Florida’s medical professionals.
45, 46, 47
III. Effect of Proposed Changes:
As described above, current law prohibits a physician from holding himself or herself out as a
specialist unless he or she has received formal recognition as a specialist from a specialty board
of the ABMS or other recognizing agency approved by the Board of Medicine or the Board of
Osteopathic Medicine. Such law is applicable only to licensed physicians.
CS/CS/HB 861 creates s. 456.072(1)(tt), F.S., to make using a term that indicates a practitioner
has completed a residency or fellowship program accredited by the ACGME or the AOA in a
medical specialty – if he or she has not completed such residency or fellowship – grounds for
discipline unless the licensee:
Completed a residency or fellowship program recognized by the ACGME or AOA in such
specialty;
Attained diplomate status in a chiropractic specialty; or
Is otherwise expressly authorized by law to use such specialty terms.
Under the bill, any practitioner who is a not a physician and has not completed a residency or
fellowship is prohibited from using terms such as “oncologist” or “dermatologist” to describe his
or her practice. However, the bill allows a licensed chiropractor who has attained diplomate
status, and any other licensed practitioner specifically authorized by law to use specialty terms,
to use such ACGME-recognized or AOA-recognized specialty terms to describe his or her
practice.
The bill also requires the DOH to enforce the bill’s provisions and grants the DOH the same
enforcement authority as an applicable board.
The bill authorizes the DOH to adopt rules for the bill’s implementation.
The bill provides an effective date of July 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
45
Christine Sexton, The News Service of Florida, “Nursing Board Signs Off On ‘Anesthesiologist’ Title,” August 16, 2019,
The Gainesville Sun, available at: https://www.gainesville.com/news/20190816/nursing-board-signs-off-on-anesthesiologist-
title (last visited Mar. 7, 2022).
46
Christine Sexton, The News Service of Florida, “Florida Lawmaker Takes Aim At Health Care Titles,” October 10, 2019,
Health News Florida, available at https://health.wusf.usf.edu/post/florida-lawmaker-takes-aim-health-care-titles (last visited
Mar. 7, 2022).
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Christine Section, The News Service of Florida, “What’s In A Name? Health Panel Seeks Clarity on Health Care
Providers,” Nov. 14, 2019, available at https://health.wusf.usf.edu/post/what-s-name-health-panel-seeks-clarity-health-care-
providers (last visited Mar. 7, 2022). BILL: CS/CS/HB 861 Page 11
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
The DOH advises that:
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The bill establishes a type of title protection that may restrict licensed health care
practitioners from advising the public regarding the specialized nature of their
practice. Some certifications issued by the ACGME use terms that are so common
that practitioners could inadvertently violate this provision of law. Examples may
include the psychologist or mental health counselor who limits his or her practice to
child and adolescent psychology, a massage therapist who specializes in working with
oncology patients, and a surgeon who performs orthopedic surgery but is not
currently certified in that specialty.
Certifications offered by other recognized professional organizations use the same
terminology as the ACGME. It is unclear how a health care practitioner who earns a
recognized certification or specialization in such an area could use that credential
under the bill.
The BON’s final order DOH-19-1500-DS-MQA held that a particular CRNA could
use the term “nurse anesthesiologist” to refer to himself and his duties. The bill’s
language will not prevent a nurse from using the term “nurse anesthesiologist.”
48
Department of Health, 2022 Agency Legislative Bill Analysis for HB 861, Jan. 11, 2022, on file with the Senate Rules
Committee. BILL: CS/CS/HB 861 Page 12
C. Government Sector Impact:
The DOH advises that:
49
The bill provides enforcement authority to the DOH that is the same as the regulatory
boards and requires the DOH to enforce the bill. However, the DOH does not
currently have a process or the personnel to enforce the bill separate from the boards.
Establishing such an office would require recurring financial resources and additional
full-time equivalent positions, including additional professional legal staff, but the
precise impact of the bill is unknown; therefore, the fiscal impact of creating a
separate disciplinary office within the DOH, separate from the boards, cannot be
calculated.
While the bill does not specifically require licensed practitioners to report specialty
designations to the DOH, the DOH would need to gather that information from each
practitioner, then store and maintain it, in order to regulate disciplinary matters and
associated penalties resulting from practitioners who violate the bill. The DOH would
experience a non-recurring increase in workload and costs associated with updating
the Licensing and Enforcement Information Database System (LEIDS), Online
Service and Data Download Portals, Cognitive Virtual Agent, Continuing Education
Tracking System, License Verification and other search sites, MQA Business
Intelligence Portal, and the boards’ websites to create and support detailed specialty
information by practitioners. The MQA would experience recurring costs associated
with establishing and maintaining additional transactions in LEIDS and Versa Online
for providers updating their credentials. Updates to fully integrate these credentials
are estimated to need six months.
VI. Technical Deficiencies:
The DOH advises that the bill appears to create statutory conflicts.
50
To wit:
The bill provides enforcement authority to the department that is the same as a regulatory
board. This provision creates a situation where two entities have the same enforcement
authority, which they are required to exercise, which in turn creates competing enforcement
provisions within the Florida Statutes and will make implementation problematic.
The DOH does not have the power to circumvent a board’s authority to take disciplinary
action against a licensed practitioner, except under emergency circumstances. According to
s. 456.072(2), F.S., the DOH may impose penalties on disciplinary acts provided in
s. 456.072(1), F.S., only for professions for which there is no regulatory board.
Section 456.073, F.S., provides that the DOH investigates complaints and determines legal
sufficiency, but the appropriate board determines whether or not probable cause exists to
pursue disciplinary action. The statute further provides that the DOH must follow the
direction of the probable cause panel regarding filing a formal administrative complaint. The
bill’s requirement for the DOH to enforce the bill in place of a regulatory board appears to
conflict with the requirements of s. 456.073, F.S.
49
Id.
50
Id. BILL: CS/CS/HB 861 Page 13
VII. Related Issues:
The DOH advises that line 18 of the bill provides that a practitioner may not use a term
designating a medical specialty unless one or more of three exceptions is met. No context is
provided for the term “using,” and it is not defined in the bill or in any other statute. Terms may
be “used” in any number of ways. This may subject the bill to challenge as being so vague as to
be unenforceable. Any rules promulgated in response to the bill may also be subject to challenge
as lacking sufficient statutory authority.
VIII. Statutes Affected:
This bill substantially amends section 456.072 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.