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 Judiciary
BILL: CS/SB 1184
INTRODUCER: Health Policy Committee and Senator Broxson
SUBJECT: Free Speech of Health Care Practitioners
DATE: February 4, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Smith Brown HP Fav/CS
2. Davis Cibula JU Pre-meeting
3. AP
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1184 seeks to ensure that a health care practitioner is not penalized in a professional
capacity for exercising his or her First Amendment constitutional right of free speech.
The bill prohibits regulatory boards within the Department of Health (DOH), or the DOH if there
is no applicable board, from reprimanding, sanctioning, revoking or threatening to revoke a
license, certificate, or registration of a health care practitioner for exercising his or her
constitutional right of free speech, including speech through the use of a social media platform.
The bill requires a regulatory board, or the DOH if there is no applicable board, to prove beyond
a reasonable doubt that the use of free speech by a health care practitioner led to the direct
physical harm of a person with whom the health care practitioner had a practitioner-patient
relationship within the 3 years immediately preceding the incident of physical harm in order to
reprimand, sanction, or revoke or threaten to revoke, a license, certificate, or registration of the
health care practitioner for his or her speech. The bill specifies that if the board or the DOH fails
to meet the burden of proof and reprimands, sanctions, or revokes or threatens to revoke, a
license, certificate, or registration of the health care practitioner for his or her speech, the board
or the DOH is liable for a sum of up to $1.5 million per occurrence for direct or indirect damages
to the health care practitioner.
The bill requires the regulatory board, or the DOH if there is no applicable board, to provide the
health care practitioner with any complaint it has received that may result in revocation of
REVISED: BILL: CS/SB 1184 Page 2
licensure, certification, or registration, within 7 days after receiving the complaint. If the board or
the DOH fails to provide the complaint, it must pay the practitioner an administrative penalty of
$500 for each day the complaint is not provided to the practitioner.
The bill provides an effective date of July 1, 2022.
II. Present Situation:
Department of Health Regulation
The Florida Department of Health (DOH) is responsible to regulate health practitioners for the
preservation of the health, safety, and welfare of the public.
1
Chapter 456 of the Florida Statutes
governs health professions and occupation regulated by the DOH. For purposes of ch. 456, F.S.
the term “health care practitioner” includes any person licensed under:
Chapter 457 (Acupuncturists);
Chapter 458 (Physicians);
Chapter 459 (Osteopathic Physicians);
Chapter 460 (Chiropractors);
Chapter 461 (Podiatrists);
Chapter 462 (Naturopathic Physicians);
Chapter 463 (Optometrists);
Chapter 464 (Nurses);
Chapter 465 (Pharmacists);
Chapter 466; (Dentists, Dental Hygienists);
Chapter 467 (Midwives);
Part I of chapter 468 (Speech Language Pathologists, Audiologists);
Part II of chapter 468 (Nursing Home Administrators);
Part III of chapter 468 (Occupational Therapists);
Part V of chapter 468 (Respiratory Therapists);
Part X of chapter 468 (Dietitian/nutritionists, Nutrition Counselor);
Part XIII of chapter 468 (Athletic Trainers);
Part XIV of chapter 468 (Orthotists, Pedorthists, Prosthetists);
Chapter 478 (Electrologists);
Chapter 480 (Massage Therapists);
Part I of chapter 483 (Clinical Laboratory Personnel);
Part II of chapter 483 (Medical Physicists);
Part III of chapter 483 (Genetic Counselors);
Chapter 484 (Opticians and Hearing Aid Specialists);
Chapter 486 (Physical Therapists);
Chapter 490 (Psychologists); and
Chapter 491 (Psychotherapists, Clinical Social Workers, Marriage and Family Therapists,
Mental Health Counselors).
1
Section 20.42(1)(g), F.S. BILL: CS/SB 1184 Page 3
Due to the diverse practices and differences between these health care professions, various
licensing Boards exist within the DOH to ensure that health care practitioners are meeting the
minimum requirements for safe practice in each practice area. The Division of Medical Quality
Assurance within the DOH serves as the principle administrative support unit for the Boards.
2
The Boards are supported by a full-time professional staff based in Tallahassee. Board members
are appointed by the governor and are subject to confirmation by the Senate. The following
Boards exist within the DOH:
Board of Acupuncture.
Board of Occupational Therapy.
Board of Athletic Trainers.
Board of Opticianry.
Board of Chiropractic Medicine.
Board of Optometry.
Board of Clinical Laboratory Personnel.
Board of Orthotists and Prosthetists.
Board of Clinical Social Work, Marriage & Family Therapy, and Mental Health Counseling.
Board of Osteopathic Medicine.
Board of Dentistry.
Board of Pharmacy.
Board of Hearing Aid Specialists.
Board of Physical Therapy.
Board of Massage.
Board of Podiatric Medicine.
Board of Medicine.
Board of Psychology.
Board of Nursing.
Board of Respiratory Care.
Board of Nursing Home Administrators.
Board of Speech-Language Pathology and Audiology.
3
Grounds for Discipline and Penalties
Section 456.072(1), F.S., sets out 45 separate grounds for discipline for health care practitioners.
These grounds address criminal activity, fraud, sexual misconduct, practicing under the
influence, making misleading, deceptive, untrue or fraudulent representations in or related to the
practice of the licensee’s profession, and many other situations.
When the board, or the department when there is no board, regulating the applicable health care
profession, finds a health care practitioner guilty of any of the grounds set forth in the health care
practitioner’s applicable practice act or rules adopted thereunder, of violating any of the 45
separate grounds for discipline listed in s. 456.072(1), F.S., or of substantially violating the
grounds for discipline within that subsection prior to obtaining a license, the board or department
may issue an order:
2
Florida Department of Health, Boards and Councils (last modified December 26, 2021) available at
http://www.floridahealth.gov/licensing-and-regulation/boards-and-councils.html (last visited Feb. 2, 2022).
3
Id. BILL: CS/SB 1184 Page 4
Refusing to license the individual.
Suspending or permanently revoking a license.
Restricting the practice or license, including, but not limited to, restricting the licensee from
practicing in certain settings, restricting the licensee to work only under designated
conditions or in certain settings, restricting the licensee from performing or providing
designated clinical and administrative services, restricting the licensee from practicing more
than a designated number of hours, or any other restriction found to be necessary for the
protection of the public health, safety, and welfare.
Imposing an administrative fine not to exceed $10,000 for each count or separate offense. If
the violation is for fraud or making a false or fraudulent representation, the board, or the
department if there is no board, must impose a fine of $10,000 per count or offense.
Issuing of a reprimand or letter of concern.
Putting the licensee on probation, subject to conditions which may include, but are not
limited to, requiring the licensee to undergo treatment, attend continuing education courses,
submit to be reexamined, work under the supervision of another licensee, or satisfy any terms
which are reasonably tailored to the violations found.
Issuing corrective action.
When the health care provider fails to make available to patients a summary of their rights,
imposing an administrative fine of up to $100 for nonwillful violations and up to $500 for
willful violations.
4
Requiring the refund of fees billed and collected from the patient or a third party on behalf of
the patient.
Requiring remedial education.
5
In determining what action is appropriate, the board, or the DOH if there is no board, must first
consider what sanctions are necessary to protect the public or to compensate the patient. After
those sanctions are considered, the board or department may consider rehabilitating the
practitioner. The health care practitioner is responsible for all costs associated with the
compliance of such orders.
6
If the ground for disciplinary action is the first-time violation of a practice act for unprofessional
conduct and no actual harm to the patient occurred, the board or department, as applicable, shall
issue a citation and assess a penalty as determined by rule of the board or department.
7
Freedom of Speech
“Congress shall make no law … abridging the freedom of speech.”
8
The First Amendment of the United States Constitution protects the right to freedom of
expression from government interference. The First Amendment is applicable to the states
4
Section 381.0261(4), F.S.
5
Section 456.072(2), F.S.
6
Id.
7
Section 456.072(3)(b), F.S.
8
U.S. CONST. amend. I. BILL: CS/SB 1184 Page 5
through the Due Process Clause of the Fourteenth Amendment.
9
“[T]he First Amendment assures
the broadest tolerable exercise of free speech, free press, and free assembly, not merely for
religious purposes, but for political, economic, scientific, news, or informational ends as well.”
10
It is well established that a government regulation based on the content of speech is
presumptively invalid and will be upheld only if it is necessary to advance a compelling
governmental interest, precisely tailored to serve that interest, and is the least restrictive means
available for establishing that interest.
11
The government bears the burden of demonstrating the
constitutionality of any such content-based regulation.
12
The U.S. Supreme Court has noted that
Even when considering some instances of defamation and fraud, moreover,
the Court has been careful to instruct that falsity alone may not suffice to
bring the speech outside the First Amendment. The statement must be a
knowing or reckless falsehood.
13
With regard to speech made on internet platforms, the Supreme Court has stated, “We agree with
[the District Court’s] conclusion that our cases provide no basis for qualifying the level of First
Amendment scrutiny that should be applied to this medium.”
14
Professional Speech
In 2018, the U.S. Supreme Court issued an opinion underscoring the concept that professional
speech is not a separate category of speech that falls outside the protection of First Amendment
freedom of speech. The Court stated that the professional speech of individuals who perform
personalized services that require a professional license from the state is not exempt from the
rule that content-based regulations of speech are subject to strict scrutiny.
15
Justice Thomas
delivered the opinion of the court, writing
The dangers associated with content-based regulations of speech are also
present in the context of professional speech. As with other kinds of speech,
regulating the content of professionals’ speech poses the inherent risk that
the Government seeks not to advance a legitimate regulatory goal, but to
suppress unpopular ideas or information. … When the government polices
the content of professional speech, it can fail to preserve an uninhibited
marketplace of ideas in which truth will ultimately prevail.
16
9
See De Jonge v. Oregon, 299 U.S. 353, 364–65(1937) (incorporating right of assembly); Gitlow v. New York, 268 U.S. 652,
666 (1925) (incorporating right of freedom of speech).
10
Douglas v. City of Jeannette (Pennsylvania), 319 U.S. 157, 179, (1943) (Jackson, J., concurring in result).
11
Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 665-66 (2004).
12
Id. at 660.
13
See U.S. v. Alvarez, 567 U.S. 709, 719 and New York Times v. Sullivan, 376 U.S. 254 (1964).
14
Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997).
15
Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2365 (2018).
16
Id. at 234. BILL: CS/SB 1184 Page 6
III. Effect of Proposed Changes:
The Exercise of Free Speech by a Health Care Practitioner
Prohibition Against Punishing a Practitioner’s Exercise of Free Speech
The bill creates s. 456.61, F.S., which prohibits regulatory boards within the DOH, or the DOH if
there is no applicable board, from reprimanding, sanctioning, revoking or threatening to revoke a
license, certificate, or registration of a health care practitioner for exercising his or her
constitutional right of free speech, including speech through the use of a social media platform.
17
Charges Must Be Proved Beyond a Reasonable Doubt; Direct Physical Harm
In order for a regulatory board, or the DOH if there is no applicable board, to reprimand,
sanction, or revoke or threaten to revoke, a license, certificate, or registration of the health care
practitioner for his or her speech it must prove beyond a reasonable doubt that the health care
practitioner’s speech led to the direct physical harm of a person with whom he or she had a
practitioner-patient relationship within the 3 years immediately preceding the incident of
physical harm.
Penalties for Failing to Prove Allegations Beyond a Reasonable Doubt
The bill specifies that if the board or the DOH fails to meet such burden of proof and reprimands,
sanctions, or revokes or threatens to revoke, a license, certificate, or registration of the health
care practitioner for his or her speech, the board or the DOH is liable for a sum of up to
$1.5 million per occurrence for any direct or indirect damages to the health care practitioner.
Duty to Provide Complaints to a Practitioner; Penalties
The bill requires the regulatory board, or the DOH if there is no applicable board, to provide a
health care practitioner with any complaints it has received which may result in the revocation of
licensure, certification, or registration, within 7 days after receiving the complaint. If the board or
the DOH fails to timely provide a complaint, it must pay the practitioner an administrative
penalty of $500 for each day the complaint is not provided to the practitioner after the specified
7 days.
The bill provides an effective date of July 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
17
See s. 501.2041(1)(g), F.S. BILL: CS/SB 1184 Page 7
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
Subsection (2) of s. 456.61, F.S., as created in the bill, establishes a civil cause of action
that authorizes a court to award a sum of up to $1.5 million per occurrence to a health
care practitioner when the DOH or a board within its jurisdiction fails to meet the
required burden of proof. It is probable that CS/SB 1184 would have a negative fiscal
impact resulting from increased litigation for the DOH and its boards.
VI. Technical Deficiencies:
None.
VII. Related Issues:
It is possible that this bill may be interpreted to conflict with authorizations in s. 456.072(1)(a)
and (m), F.S., and other similar grounds for discipline in a health care practitioner’s applicable
practice act or rules adopted thereunder.
Section 456.072(1)(a), F.S., authorizes discipline for a practitioner making misleading,
deceptive, or fraudulent representations in or related to the practice of the licensee’s profession.
Section 456.072(1)(m), F.S., authorizes discipline for a practitioner making deceptive, untrue, or
fraudulent representations in or related to the practice of a profession or employing a trick or
scheme in or related to the practice of a profession.
On July 29, 2021, the Federation of State Medical Boards, issued the following statement:
BILL: CS/SB 1184 Page 8
Physicians who generate and spread COVID-19 vaccine misinformation or
disinformation are risking disciplinary action by state medical boards,
including the suspension or revocation of their medical license. Due to their
specialized knowledge and training, licensed physicians possess a high
degree of public trust and therefore have a powerful platform in society,
whether they recognize it or not. They also have an ethical and professional
responsibility to practice medicine in the best interests of their patients and
must share information that is factual, scientifically grounded and
consensus-driven for the betterment of public health. Spreading inaccurate
COVID-19 vaccine information contradicts that responsibility, threatens to
further erode public trust in the medical profession and puts all patients at
risk.
18
Ultimately, the DOH and the boards established within it are responsible to regulate health
practitioners for the preservation of the health, safety, and welfare of the public. This bill does
not protect speech that is not already protected under the U.S. and Florida constitutions. Rather,
it prohibits the DOH and its boards from administratively penalizing a person exercising free
speech unless it meets a specific burden of proof. The $1.5 million liability established in the bill
may deter the DOH and the boards from taking action against health care practitioners in their
efforts to preserve the health, safety, and welfare of the public.
VIII. Statutes Affected:
This bill creates section 456.61 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Health Policy on January 26, 2022:
The CS clarifies that the provisions of the bill apply to all speech made by a health care
practitioner and not solely to speech conveyed through the use of social media. It also
clarifies that any cause of action established in the bill must be related to the health care
practitioner’s speech. The CS deletes the reference to recognizing agencies approved by
the Board of Osteopathic Medicine so that the provisions of the bill would no longer
apply to those recognizing agencies.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
18
Federation of State Medical Boards, FSMB: Spreading COVID-19 Vaccine Misinformation May Put Medical License at
Risk (July 29, 2021) available at https://www.fsmb.org/advocacy/news-releases/fsmb-spreading-covid-19-vaccine-
misinformation-may-put-medical-license-at-risk/ (last visited Feb. 3, 2022).