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Florida Laws and Rules For Mental Health Update Back to Course Index

 

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Florida Laws and Rules

Pertaining to the Mental Health Field

3 Hour Update

SW, MFT, MH, CAC, CAP

 

 

This course is not designed to teach you the ins and outs of your organization, but it is a foundation for your understanding of which of Florida’s statutes pertain to the practice of counseling and what the licensing board regulations consist of.  This course is not an attempt to interpret the law, but instead to extrapolate the chapters that pertain to our practice.  So as not to interpret, much of the course is verbatim from the Florida Statutes, these sections are in italics.  If you are uncertain regarding the legal ease please email us at ContactUs@BaysideCEU.com and we will have the attorney explain the terms or sections you have questions on.  He will not give legal advise, but will help with the understanding of the terminology.

 

The course, even in its current edited version, continues to read as a legal brief in many parts.  As some portions that were not highlighted in this course may be appropriate for your scope of practice, it is recommended you continue to research the laws and new legislature, get involved! Unfortunately, learning by doing is still the best way of retaining information and making mistakes, as we all do, frequently ensures you will not repeat those behaviors.  In the sink or swim philosophy in which so many of us begin our careers, perhaps this is at least a life preserver though we would probably prefer the whole life boat!  Even as we move into our comfort zones and settle in as professionals, as mentioned statutes change and we need to stay up to date to protect our clients and ourselves.

 

Knowledge is power and ignorance is not a defense.

 

 

 

 

 

FLORIDA STATUTES, CHAPTER 491

CLINICAL COUNSELING

 

 

 

Chapter 491 speaks directly concerning the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling.  The board is made up of nine members appointed by the Governor and confirmed by the Senate. 

 

The nine members include, two licensed practicing clinical social workers, two licensed practicing marriage and family therapists, two licensed practicing mental health counselors and three citizens of the state who are not and have never been licensed in a mental health-related profession and who are in no way connected with the practice of any such profession.

 

The board adopts, implements and enforces the rules.

 

 

 

 

LICENSES

 

Under F.S. Chapter 491 there are four types of licenses: 

 

1) Provisional license

 

2) Licensure by examination

 

3) Dual Licensure as a Marriage and Family Therapist

 

4) Licensure or certification by endorsement

 

As this is an update course the majority of participants are already licensed when taking this course. 

 

RENEWALS

 

A license must be renewed  every 2 years.  The board sets the rules and fees for renewal.  Current licenses expire at midnight, Eastern Time, on March 31st of every odd year.

 

Failure to renew an active or inactive license by the expiration date will result in the license being placed in delinquent status.  Failure by a delinquent licensee to renew before the expiration of the current licensure cycle renders the license null and void without any further action by the board or the department.

 

At least 90 days before your license expires, the department will mail you a renewal notification postcard to your last known mailing address of record.  You can renew online on the board website or by mail.

 

The current fees are as follows:

 

Before expiration:

 

Active to Active:       $130.00

Inactive to Inactive:  $55.00

Active to Inactive:   x $55.00

Inactive to Active: i   $180.00

Active to Retired:  l   $55.00

Inactive to Retired:   $55.00

 

After expiration:

 

Active to Active:     x  $235.00

Inactive to Inactive:  $160.00

Active to Inactive:    x$265.00

Inactive to Active:     $390.00

Active to Retired:     x$265.00

Inactive to Retired:l   $265.00

 

 

Each applicant for renewal must present satisfactory evidence that, in the period since the license or certificate was issued, the applicant has completed continuing education requirements. 

 

 

 

(d)  False, deceptive, or misleading advertising or obtaining a fee or other thing of value

      on the representation that beneficial results from any treatment will be guaranteed.

 

(e)  Advertising, practicing, or attempting to practice under a name other than one’s own.

 

(f)  Maintaining a professional association with any person who the applicant, licensee,

      registered intern, or certificate holder

     knows, or has reason to believe, is in violation of this chapter or of a rule of the

     department or the board.

 

(g)  Knowingly aiding, assisting, procuring, or advising any nonlicensed, nonregistered,

      or noncertified person to hold himself or herself out as licensed, registered, or

      certified under this chapter.

 

(h)  Failing to perform any statutory or legal obligation placed upon a person licensed,

       registered, or certified under this chapter.

 

(i)  Willfully making or filing a false report or record; failing to file a report or record

     required by state or federal law; willfully impeding or obstructing the filing of a

     report or record; or inducing another person to make or file a false report or record 

     or to impede or obstruct the filing of a report or record. Such report or record

     includes only a report or record which requires the signature of a person licensed,

     registered, or certified under this chapter.

 

(j)  Paying a kickback, rebate, bonus, or other remuneration for receiving a patient or

     client, or receiving a kickback, rebate, bonus, or other remuneration for referring a

     patient or client to another provider of mental health care services or to a

     provider of health care services or goods; referring a patient or client to oneself for

    services on a fee-paid basis when those services are already being paid for by some

     other public or private entity; or entering into a reciprocal referral agreement.

 

(k)  Committing any act upon a patient or client which would constitute sexual battery or

       which would constitute sexual misconduct as defined pursuant to s. 491.0111.

 

(l)  Making misleading, deceptive, untrue, or fraudulent representations in the practice of

     any profession licensed, registered, or certified under this chapter.

 

(m)  Soliciting patients or clients personally, or through an agent, through the use of

       fraud, intimidation, undue influence, or a form of overreaching or vexatious conduct.

 

(n)  Failing to make available to a patient or client, upon written request, copies of tests,

       reports, or documents in the possession or under the control of the licensee,

      registered intern, or certificate holder which have been prepared for and paid for by

      the  patient or client.

 

(o)  Failing to respond within 30 days to a written communication from the department

       or the board concerning any investigation by the department or the board, or failing

       to make available any relevant records with respect to any investigation about the

      licensee’s, registered intern’s, or certificate holder’s conduct or background.

 

(p)  Being unable to practice the profession for which he or she is licensed, registered, or

     certified under this chapter with reasonable skill or competence as a result of any

     mental or physical condition or by reason of illness; drunkenness; or  excessive use o

     of drugs, narcotics, chemicals, or any other substance. In enforcing this paragraph,

     upon a finding by the secretary, the secretary’s designee, or the board that probable

    cause exists to believe that the licensee, registered intern, or certificate holder is

    unable to practice the profession because of the reasons stated in this paragraph, the

    department shall have the authority to compel a licensee, registered intern, or

    certificate holder to submit to a mental or physical examination by psychologists,

     physicians, or other licensees under this chapter, designated by the department or

    board. If the licensee, registered intern, or certificate holder refuses to comply with

    such order, the department’s order directing the examination may be enforced by filing

    a petition for enforcement in the circuit court in the circuit in which the licensee,

    registered intern, or certificate holder resides or does business. The licensee,

    registered intern, or certificate holder against whom the petition is  filed shall not be

    named or identified by initials in any public court records or documents, and the

     proceedings shall be closed to the public. The department shall be entitled to the

    summary procedure provided in s. 51.011. A licensee, registered intern,  or certificate

    holder affected under this paragraph shall at reasonable intervals be afforded an

    opportunity to demonstrate that he or she can resume the competent practice for which

    he or she is licensed, registered, or certified with reasonable skill and safety to

    patients.

 

      of  activities for which the licensee, registered intern, or certificate holder is not qualified by

     training or experience.

 

(s)  Delegating professional responsibilities to a person whom the licensee, registered

      intern, or certificate holder knows or has  reason to know is not qualified by training

      or experience to perform such responsibilities.

 

(t)  Violating a rule relating to the regulation of the profession or a lawful order of the

     department or the board previously entered in a disciplinary hearing.

 

(u)  Failure of the licensee, registered intern, or certificate holder to maintain in

      confidence a communication made by a patient or client in the context of such

      services, except as provided in s. 491.0147.

 

(v) Making public statements which are derived from test data, client contacts, or

     behavioral research and which identify or damage research subjects or clients.

 

(w)  Violating any provision of this chapter or chapter 456, or any rules adopted

      pursuant thereto.

 

(2)  The department, or, in the case of 1psychologists, the board, may enter an order

     denying licensure or imposing any of the penalties in s. 456.072(2) against any

      applicant for licensure or licensee who is found guilty of violating any provision of

      subsection (1) of this section or who is found guilty of violating any provision of s.

     456.072(1).

 

 

TITLES AND PRACTICE

 

The statutes specify the terminology and practice must be corroborated by the education, qualifications and license the professional holds.

 

 

 

 

THE FLORIDA STATUTE,

CHAPTER 90

PSYCHOTHERAPIST – PATIENT PRIVILEGE

 

Privilege means a person can prevent the disclosure of confidential communication made during assessment, diagnosis and/or treatment.  What can be said by a counselor or therapist, when and why.  Questions arise surrounding privilege pertaining to individual therapy, marriage and family and group sessions.  What happens when the court is involved? 

 

The Florida Statute, Chapter 90 provides specific rules regarding what may be revealed in court, the patients right to confidentiality and the exceptions.  It is crucial for a counselor to have a firm understanding of these laws and to ensure that their client understands the limitations to confidentiality.  It is a best practice to have a clear explanation of the limits to confidentiality in the clients consent forms that are signed prior to the first assessment or therapy session.

 

A counselor in private practice found two office staff browsing through client’s clinical records on their lunch hour.  They were talking about the clients, reading progress notes and such.  Should they be fired for breaching confidentiality?

 

Answer:  The counselor should reprimand the staff and advise them that the client’s communications are privileged information.  They have access to the files because they are necessary for the transmission of the information, but perusing them for entertainment is inappropriate. 

 

According to the Florida Statutes and for the purposes of this course a psychotherapist is defined as:

 

1) a person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be, who is engaged in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction; 

 

2) a person licensed or certified as a psychologist under the laws of any state or nation, who is engaged primarily in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction;

 

3) a person licensed or certified as a clinical social worker, marriage and family therapist, or mental health counselor under the laws of this state, who is engaged primarily in the diagnosis or treatment or a mental or emotional condition, including alcoholism and other drug addiction;

 

4) treatment personnel of facilities licensed by the state pursuant to chapter 394, chapter 395, or chapter 397, of facilities designated by the Department of Children and Family Services pursuant to chapter 394 as treatment facilities, or of facilities defined as community mental health centers pursuant to s. 394.907(1), who are engaged primarily in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction; or

 

5)  An advanced registered nurse practitioner certified under s. 464.012, whose primary scope of practice is the diagnosis or treatment of mental or emotional conditions, including chemical abuse, and limited only to actions performed in accordance with part I of chapter 464.

 

 

 

 

 

 

 

Confidentiality is made vulnerable and certain information may be shared with persons who are present to further the interest of the patient in consultation, examination or interview, those persons necessary for the transmission of the communication such as translator, or those persons who are participating in the diagnosis and treatment under the direction of the psychotherapist. 

 

Privilege does not protect communications relevant to the process of ensuring involuntary hospitalization of a patient when necessary.  It also does not protect information gathered during court ordered examinations or for communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of his or her claim or condition as an element of the partys claim or defense. 

 

Janet is a 23 year old female voluntarily in outpatient counseling for her inability to control her anger.  She has been written up at work on two occasions for arguing with a co-worker and then with her boss.  During both incidents Janet lost control to the extent she slammed doors and file cabinet drawers.  She came to you for help on her own.  When she told her employer she was in counseling they were relieved.  She was hoping the counseling might save her from being fired and certainly help her control her outbursts.   The employer called you asking if in your opinion she was safe to be around co-workers and clients.  Can you talk with them?

 

Answer:  No.  Unless Janet signs a release with a specific name of a supervisor listed, you may not give any information about whether Janet is a client or not; how she is doing in treatment; if she is attending or not; or give your opinion as to whether she should be around her co-workers.  If, in your clinical opinion, Janet becomes a danger to herself or others, there are other issues to address.

 

 

This chapter also defines privilege between a victim and a sexual assault counselor:

 

(a)A rape crisis center is any public or private agency that offers assistance to victims of sexual assault or sexual battery and their families.

 

(b)A sexual assault counselor is any employee of a rape crisis center whose primary purpose is the rendering of advice, counseling, or assistance to victims of sexual assault or sexual battery.

 

(c)A trained volunteer is a person who volunteers at a rape crisis center, has completed 30 hours of training in assisting victims of sexual violence and related topics provided by the rape crisis center, is supervised by members of the staff of the rape crisis center, and is included on a list of volunteers that is maintained by the rape crisis center.

 

(d)A victim is a person who consults a sexual assault counselor or a trained volunteer for the purpose of securing advice, counseling, or assistance concerning a mental, physical, or emotional condition caused by a sexual assault or sexual battery, an alleged sexual assault or sexual battery, or an attempted sexual assault or sexual battery.

 

Communication between a sexual assault counselor or trained volunteer and a victim is confidential if it is not intended to be disclosed to third persons.  The exception include those persons present to further the interests of the victim in the consultation, examination or review; those person necessary for the transmission of the communication and those persons to whom disclosure is reasonably necessary to accomplish the purposes for which the sexual assault counselor or the trained volunteer is consulted.

    

A victim has a privilege to refuse to disclose, and to prevent any other person from disclosing, a confidential communication made by the victim to a sexual assault counselor or trained volunteer or any record made in the course of advising, counseling, or assisting the victim. Such confidential communication or record may be disclosed only with the prior written consent of the victim. This privilege includes any advice given by the sexual assault counselor or trained volunteer in the course of that relationship.

    

The privilege may be claimed by the victim, the victims attorney, a guardian of the victim, the personal representative of a deceased victim, and the sexual assault counselor or trained volunteer, but only on behalf of the victim.

 

Privilege regarding the domestic violence relationship is also covered:

 

(a) domestic violence center is any public or private agency that offers assistance to victims of domestic violence.

 

(b)A domestic violence advocate means any employee or volunteer who has 30 hours of training in assisting victims of domestic violence and is an employee of or volunteer for a program for victims of domestic violence whose primary purpose is the rendering of advice, counseling, or assistance to victims of domestic violence.

 

(c)A victim is a person who consults a domestic violence advocate for the purpose of securing advice, counseling, or assistance concerning a mental, physical, or emotional condition caused by an act of domestic violence, an alleged act of domestic violence, or an attempted act of domestic violence.

 

A communication between a domestic violence advocate and a victim is confidential if it relates to the incident of domestic violence for which the victim is seeking assistance and if it is not intended to be disclosed to third persons other than those persons present to further the interest of the victim in the consultation, assessment, or interview; those persons to whom disclosure is reasonably necessary to accomplish the purpose for which the domestic violence advocate is consulted.

 

A victim has a privilege to refuse to disclose, and to prevent any other person from disclosing, a confidential communication made by the victim to a domestic violence advocate or any record made in the course of advising, counseling, or assisting the victim. The privilege applies to confidential communications made between the victim and the domestic violence advocate and to records of those communications only if the advocate is registered under s. 39.905 at the time the communication is made. This privilege includes any advice given by the domestic violence advocate in the course of that relationship.

 

In summary, Chapter 90 focuses on privilege between a psychotherapist,  sexual assault counselor, domestic violence advocate and the client.  All communication is privileged and should not be released without consent.  If you are ordered by the court to divulge communication see advice from a supervisor and attorney.

 

 

 

 

FLORIDA STATUTES, CHAPTER 456

PROFESSIONAL REGULATIONS

 

 

In order to promote the health, safety and welfare of the public the Legislature states that the profession of providing mental health and substance abuse services must be regulated. 

 

Under The Division of Quality Medical Assurance is each professional board which has adopted rules establishing a procedure for the biennial renewal of licenses.  

 

The board specifies the expiration dates of licenses and the process for tracking compliance with continuing education requirements, financial responsibility requirements, and any other conditions of renewal. 

 

 

 

 

Daniel works in the discharge planning department of the hospital.  Dr. Smith has an agreement with Daniel based on a long term friendship.  Daniel refers all of the psychiatric patients needing outpatient counseling to Dr. Smith.  In return for the referral, Dr. Smith pays Daniel $25.00 per referral.  Daniel knows Dr. Smith is an excellent psychologist and he makes a little extra money on the side.  Is this unethical?

 

Read on

 

It is unlawful for any health care provider or any provider of health care services to offer, pay, solicit, or receive a kickback, directly or indirectly, overtly or covertly, in cash or in kind, for referring or soliciting patients.

 

 

ACTIVE, INACTIVE and DELINQUENT LICENSES

 

A licensee may practice a profession only if the licensee has an active status license. If a licensee has an inactive or delinquent license then they must apply for a license change to active and pay applicable fees.

 

 

RECORDS

 

A release is required to transfer or disclose any patient records. However, such records may be furnished without written authorization under the following circumstances:

 

1.  To any person, firm, or corporation that has procured or furnished such examination or treatment with the patient’s consent.

 

2.  When compulsory physical examination is made pursuant to Rule 1.360, Florida Rules of Civil Procedure, in which case copies of the medical records shall be furnished to both the defendant and the plaintiff.

 

3.  In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient’s legal representative by the party seeking such records.

 

4.  For statistical and scientific research, provided the information is abstracted in such a way as to protect the identity of the patient or provided written permission is received from the patient or the patient’s legal representative.

 

(b)  Absent a specific written release or authorization permitting utilization of patient information for solicitation or marketing the sale of goods or services, any use of that information for those purposes is prohibited.

 

(6)  Except in a medical negligence action or administrative proceeding when a health care practitioner or provider is or reasonably expects to be named as a defendant, information disclosed to a health care practitioner by a patient in the course of the care and treatment of such patient is confidential and may be disclosed only to other health care practitioners and providers involved in the care or treatment of the patient, or if permitted by written authorization from the patient or compelled by subpoena at a deposition, evidentiary hearing, or trial for which proper notice has been given.

 

(7)(a)1.  The department may obtain patient records pursuant to a subpoena without written authorization from the patient if the department and the probable cause panel of the appropriate board, if any, find reasonable cause to believe that a health care practitioner has excessively or inappropriately prescribed any controlled substance specified in chapter 893 in violation of this chapter or any professional practice act or that a health care practitioner has practiced his or her profession below that level of care, skill, and treatment required as defined by this chapter or any professional practice act and also find that appropriate, reasonable attempts were made to obtain a patient release.

 

2.  The department may obtain patient records and insurance information pursuant to a subpoena without written authorization from the patient if the department and the probable cause panel of the appropriate board, if any, find reasonable cause to believe that a health care practitioner has provided inadequate medical care based on termination of insurance and also find that appropriate, reasonable attempts were made to obtain a patient release.

 

3.  The department may obtain patient records, billing records, insurance information, provider contracts, and all attachments thereto pursuant to a subpoena without written authorization from the patient if the department and probable cause panel of the appropriate board, if any, find reasonable cause to believe that a health care practitioner has submitted a claim, statement, or bill using a billing code that would result in payment greater in amount than would be paid using a billing code that accurately describes the services performed, requested payment for services that were not performed by that health care practitioner, used information derived from a written report of an automobile accident generated pursuant to chapter 316 to solicit or obtain patients personally or through an agent regardless of whether the information is derived directly from the report or a summary of that report or from another person, solicited patients fraudulently, received a kickback as defined in s. 456.054, violated the patient brokering provisions of s. 817.505, or presented or caused to be presented a false or fraudulent insurance claim within the meaning of s. 817.234(1)(a), and also find that, within the meaning of s. 817.234(1)(a), patient authorization cannot be obtained because the patient cannot be located or is deceased, incapacitated, or suspected of being a participant in the fraud or scheme, and if the subpoena is issued for specific and relevant records.

 

(b)  Patient records, billing records, insurance information, provider contracts, and all attachments thereto obtained by the department pursuant to this subsection shall be used solely for the purpose of the department and the appropriate regulatory board in disciplinary proceedings. This section does not limit the assertion of the psychotherapist-patient privilege under s. 90.503 in regard to records of treatment for mental or nervous disorders by a medical practitioner licensed pursuant to chapter 458 or chapter 459 who has primarily diagnosed and treated mental and nervous disorders for a period of not less than 3 years, inclusive of psychiatric residency. However, the health care practitioner shall release records of treatment for medical conditions even if the health care practitioner has also treated the patient for mental or nervous disorders. If the department has found reasonable cause under this section and the psychotherapist-patient privilege is asserted, the department may petition the circuit court for an in camera review of the records by expert medical practitioners appointed by the court to determine if the records or any part thereof are protected under the psychotherapist-patient privilege.

 

(8)(a)  All patient records obtained by the department and any other documents maintained by the department which identify the patient by name are confidential and exempt from s. 119.07(1) and shall be used solely for the purpose of the department and the appropriate regulatory board in its investigation, prosecution, and appeal of disciplinary proceedings. The records shall not be available to the public as part of the record of investigation for and prosecution in disciplinary proceedings made available to the public by the department or the appropriate board.

 

(b)  Notwithstanding paragraph (a), all patient records obtained by the department and any other documents maintained by the department which relate to a current or former Medicaid recipient shall be provided to the Medicaid Fraud Control Unit in the Department of Legal Affairs, upon request.

 

(9)  All records owners shall develop and implement policies, standards, and procedures to protect the confidentiality and security of the medical record. Employees of records owners shall be trained in these policies, standards, and procedures.

 

(10)  Records owners are responsible for maintaining a record of all disclosures of information contained in the medical record to a third party, including the purpose of the disclosure request. The record of disclosure may be maintained in the medical record. The third party to whom information is disclosed is prohibited from further disclosing any information in the medical record without the expressed written consent of the patient or the patient’s legal representative.

 

(11)  Notwithstanding the provisions of s. 456.058, records owners shall place an advertisement in the local newspaper or notify patients, in writing, when they are terminating practice, retiring, or relocating, and no longer available to patients, and offer patients the opportunity to obtain a copy of their medical record.

 

(12)  Notwithstanding the provisions of s. 456.058, records owners shall notify the appropriate board office when they are terminating practice, retiring, or relocating, and no longer available to patients, specifying who the new records owner is and where medical records can be found.

 

(13)  Whenever a records owner has turned records over to a new records owner, the new records owner shall be responsible for providing a copy of the complete medical record, upon written request, of the patient or the patient’s legal representative.

 

(14)  Licensees in violation of the provisions of this section shall be disciplined by the appropriate licensing authority.

 

(15)  The Attorney General is authorized to enforce the provisions of this section for records owners not otherwise licensed by the state, through injunctive relief and fines not to exceed $5,000 per violation.

 

(16)  A health care practitioner or records owner furnishing copies of reports or records or making the reports or records available for digital scanning pursuant to this section shall charge no more than the actual cost of copying, including reasonable staff time, or the amount specified in administrative rule by the appropriate board, or the department when there is no board.

 

(17)  Nothing in this section shall be construed to limit health care practitioner consultations, as necessary.

 

(18)  A records owner shall release to a health care practitioner who, as an employee of the records owner, previously provided treatment to a patient, those records that the health care practitioner actually created or generated when the health care practitioner treated the patient. Records released pursuant to this subsection shall be released only upon written request of the health care practitioner and shall be limited to the notes, plans of care, and orders and summaries that were actually generated by the health care practitioner requesting the record.

 

(19)  The board, or department when there is no board, may temporarily or permanently appoint a person or entity as a custodian of medical records in the event of the death of a practitioner, the mental or physical incapacitation of the practitioner, or the abandonment of medical records by a practitioner. The custodian appointed shall comply with all provisions of this section, including the release of patient records.

 

Each board should provide regulations for the disposition of records of deceased practitioners, practitioner relocating or those terminating practice.  For the purposes of this course you will find these requirements in the Rule 64-B4 section.

 

 

DISCLOSURE OF HIV/AIDS

 

 (1)  A practitioner regulated through the Division of Medical Quality Assurance of the department shall not be civilly or criminally liable for the disclosure of otherwise confidential information to a sexual partner or a needle-sharing partner under the following circumstances:

 

(a)  If a patient of the practitioner who has tested positive for human immunodeficiency virus discloses to the practitioner the identity of a sexual partner or a needle-sharing partner;

 

(b)  The practitioner recommends the patient notify the sexual partner or the needle-sharing partner of the positive test and refrain from engaging in sexual or drug activity in a manner likely to transmit the virus and the patient refuses, and the practitioner informs the patient of his or her intent to inform the sexual partner or needle-sharing partner; and

 

(c)  If pursuant to a perceived civil duty or the ethical guidelines of the profession, the practitioner reasonably and in good faith advises the sexual partner or the needle-sharing partner of the patient of the positive test and facts concerning the transmission of the virus.

However, any notification of a sexual partner or a needle-sharing partner pursuant to this section shall be done in accordance with protocols developed pursuant to rule of the Department of Health.

 

(2)  Notwithstanding the foregoing, a practitioner regulated through the Division of Medical Quality Assurance of the department shall not be civilly or criminally liable for failure to disclose information relating to a positive test result for human immunodeficiency virus of a patient to a sexual partner or a needle-sharing partner.

 

 

ADVERTISEMENT STATEMENT FOR FREE OR DISCOUNTED SERVICES. 

 

In any advertisement for a free, discounted fee, or reduced fee service, examination, or treatment by a health care practitioner licensed under chapter 458, chapter 459, chapter 460, chapter 461, chapter 462, chapter 463, chapter 464, chapter 465, chapter 466, chapter 467, chapter 478, chapter 483, chapter 484, chapter 486, chapter 490, or chapter 491, the following statement shall appear in capital letters clearly distinguishable from the rest of the text:

 

THE PATIENT AND ANY OTHER PERSON RESPONSIBLE FOR PAYMENT HAS A RIGHT TO REFUSE TO PAY, CANCEL PAYMENT, OR BE REIMBURSED FOR PAYMENT FOR ANY OTHER SERVICE, EXAMINATION, OR TREATMENT THAT IS PERFORMED AS A RESULT OF AND WITHIN 72 HOURS OF RESPONDING TO THE ADVERTISEMENT FOR THE FREE, DISCOUNTED FEE, OR REDUCED FEE SERVICE, EXAMINATION, OR TREATMENT.

 

However, the required statement shall not be necessary as an accompaniment to an advertisement of a licensed health care practitioner defined by this section if the advertisement appears in a classified directory the primary purpose of which is to provide products and services at free, reduced, or discounted prices to consumers and in which the statement prominently appears in at least one place.

 

 

SEXUAL MISCONDUCT

 

Sexual misconduct is prohibited. Sexual misconduct is described as the violation of the professional relationship to engage or attempt to engage the patient or client, or an immediate family member, guardian, or representative of the patient or client in, or to induce or attempt to induce such person to engage in, verbal or physical sexual activity outside the scope of the professional practice of such health care profession.

 

The Board will refuse to admit a candidate to any examination and refuse to issue a license, certificate, or registration to any applicant if the candidate or applicant has:

 

(a)  Had any license, certificate, or registration to practice any profession or occupation revoked or surrendered based on a violation of sexual misconduct in the practice of that profession under the laws of any other state or any territory or possession of the United States and has not had that license, certificate, or registration reinstated by the licensing authority of the jurisdiction that revoked the license, certificate, or registration; or

 

(b)  Committed any act in any other state or any territory or possession of the United States which if committed in this state would constitute sexual misconduct.

IMPAIRED PRACTITIONERS

 

Mental health practitioners are human, and as such, are flawed.  If the department receives a complaint alleging that a licensee is impaired as a result of the misuse or abuse of alcohol or other drugs or due to a mental or physical condition which could affect his or her ability to practice they can investigate and if necessary discipline.  Impaired practitioner programs can be put in place to help those in need.  

 

 

CITATIONS AND DISCIPLINARY GUIDELINES

 

Chapter 456 gives each board the authority to give citations and outline disciplinary guidelines.  

 

 

COMPLIMENTARY OR ALTERNATIVE HEALTH CARE TREATMENTS

 

Nancy, who is licensed as a LCSW, also is trained as an herbalist.  She feels it is beneficial for all of her clients to be in balance hormonally while seeking counseling.  Does she have to explain to her clients what she is offering or can she sell it as medication?

 

A health care practitioner who offers to provide a patient with a complementary or alternative health care treatment must inform the patient of the nature of the treatment and must explain the benefits and risks associated with the treatment to the extent necessary for the patient to make an informed and prudent decision regarding such treatment option. In compliance with this subsection:

 

(a)  The health care practitioner must inform the patient of the practitioner’s education, experience, and credentials in relation to the complementary or alternative health care treatment option.

 

(b)  The health care practitioner may, in his or her discretion, communicate the information orally or in written form directly to the patient or to the patient’s legal representative.

 

(c)  The health care practitioner may, in his or her discretion and without restriction, recommend any mode of treatment that is, in his or her judgment, in the best interests of the patient, including complementary or alternative health care treatments, in accordance with the provisions of his or her license.

  

.

CHAPTER 64B4-2

CLINICAL SOCIAL WORK,

MARRIAGE AND FAMILY THERAPY AND

MENTAL HEALTH COUNSELING

 

These regulations are the rules that pertain directly to the practice of clinical social work, marriage and family therapy and mental health counseling. 

 

 

DISCIPLINE

 

Rule 64B4 details the specific fines attached to violations.  The fines can range from probation, fines beginning at $25.00 up to $10,000.00 and permanent revocation of license. 

 

The following are actions for which the board will discipine:

 

(a) Attempting to obtain, obtaining, or renewing a license under Chapter 491, F.S., by

     bribery or fraudulent misrepresentation or through an error of the Board or the

     Department.(Sections 456.072(1)(h) & 491.009(1)(a), F.S.)

 

(b) Having a license or certificate to practice a comparable profession revoked,

     suspended, or otherwise acted against, including the denial of certification or

    licensure by another state, territory, or country.(Section 491.009(1)(b), F.S.)

 

(c) Being convicted or found guilty, regardless of adjudication, or having entered a plea

     of nolo contendere to, a crime in any jurisdiction which directly relates to the practice

     of the licensees profession or the licensees ability to practice that

     profession.(Section 456.072(1)(c) & 491.009(1)(c), F.S.)

 

(d) False, deceptive, or misleading advertising or obtaining a fee or other thing of value

      on the representation that beneficial results from any treatment will be

      guaranteed.(Section 491.009(1)(d), F.S.)

 

(e) Advertising, practicing, or attempting to practice under a name other than ones

     own.(Section 491.009(1)(e), F.S.)

 

(f) Maintaining a professional association with any person whom the applicant or

     licensee knows, or has reason to believe, is in violation of Chapter 491, F.S., or of a

    rule of the Department or this Board.(Section 491.009(1)(f), F.S.)

 

(g) Knowingly aiding, assisting, procuring, or advising a non-licensed person to hold

     oneself out as licensed under Chapter 491, F.S.(Section 456.072(1)(j) &

     491.009(1)(g), F.S.)

 

(h)1. Failing to perform any statutory or legal obligation placed upon a person licensed

        under Chapter 491, F.S.(Section 456.072(1)(k) & 491.009(1)(h), F.S.)

 

(i) Willfully making or filing a false report or record; failing to file a report or record

    required by state or federal law; willfully  impeding or obstructing the filing of a

   report or record; or inducing another person to make or file a false report or record or

   to impede or obstruct the filing of a report or record.(Section 456.072(1)(l) &

   491.009(1)(i), F.S.)

 

(j) Paying or receiving a kickback, rebate, bonus, or other remuneration for receiving a

     patient or client or referring a patient or  client to another provider of mental health

    care services or to a provider of health care services or goods; referring a patient

    or client to oneself for services on a fee-paid basis when those services are already

    being paid for by some other public or  private entity; or entering into a reciprocal

    referral agreement.(Section 491.009(1)(j), F.S.)

 

(k) Committing any act upon a patient or client, which would constitute sexual battery or

     which would constitute sexual misconduct.(Section 456.072(1)(u) & 491.009(1)(k),

     F.S.)

 

(l) Making misleading, deceptive, untrue, or fraudulent misrepresentations in the practice

      of any profession licensed under chapter 491, F.S., or employing a trick or scheme in

     or related to the practice of a profession.(Section 456.072(1)(a), (m) & 491.009(1)(l),

     F.S.)

 

(m) Soliciting patients or clients personally, or through an agent, through the use of

     fraud, intimidation, undue influence, or a  form of overreaching or vexatious

      conduct.(Section 491.009(1)(m), F.S.)

 

(n) Failing to make available to a patient or client, upon written request, copies of tests,

     reports, or documents in the possession or under the control of the licensee which

    have been prepared for and paid for by the patient or client.

 

(o) Failing to respond within thirty (30) days to a written communication from the

     Department or the Board concerning any  investigation by the Department or the

     Board, or failing to make available any relevant records with respect to the

     investigationabout the licensees conduct or background.(Section 491.009(1)(o), F.S.)

 

(p) Being unable to practice the profession for which one is licensed under Chapter 491,

     F.S., with reasonable skill and competence as a result of any mental or physical

     condition or by reason of illness; drunkenness; or excessive use of drugs,

     narcotics, chemicals, or any other substance.(Section 456.072(1)(y) & 491.009(1)(p),

      F.S.)

 

(q) Violating provisions of Chapter 491 or 456, F.S., or any rule adopted pursuant

      thereto.(Section 491.009(1)(w), F.S.)

 

(r ) Performing any treatment or prescribing any therapy which, by the prevailing

      standards of the mental health professions in the community would constitute

     experimentation on human subjects, without first obtaining full, informed, and written

     consent.(Section 491.009(1)(q), F.S.)

 

(s) Failing to meet the MINIMUM standards of performance in professional activities

      when measured against generally  prevailing peer performance, including the

      undertaking of activities for which the licensee is not qualified by training or

      experience.(Section 491.009(1)(r), F.S.)

 

(t) Delegating professional responsibilities to a person whom the licensee knows or has

     reason to know is not qualified by  training or experience to perform such      

    responsibilities.(Section 456.072(1)(p) & 491.009(1)(s), F.S.)

 

(u) Violating a rule relating to the regulation of the profession or a lawful order of the

     Department or the Board previously  entered in a disciplinary hearing.(Section

     491.009(1)(t), F.S.)

 

(v) Failure of a licensee to maintain in confidence any communication made by a patient

     or client in the context of services,  except by written permission or in the face of clear

     and immediate probability of bodily harm to the patient or client or to     

     others.(Section 491.009(1)(u), F.S.)

 

(w) Making public statements which are derived from test data, client contacts, or

      behavioral research and which identify or  damage research subjects or

      clients.(Section 491.009(1)(v), F.S.)

 

(x) Having been found liable in a civil proceeding for knowingly filing a false report or

     complaint with the department or the agency against another licensee.(Section

     456.072(1)(g), F.S.)

 

(y) Except as provided in Section 465.016, F.S., failing to report to the department any

     person whom the licensee knows is in violation of Chapter 456, Part II, Chapter 491,

    F.S., or the rules of the Department or the Board.(Section 456.072(1)(i), F.S.)

 

(z) Exercising influence on the client for the purpose of financial gain of the licensee or a

     third party.(Section 456.072(1)(n), (F.S.)

 

(aa) Improperly interfering with an investigation or inspection authorized by statute, or

      with any disciplinary proceeding.

     (Section 4556.072(1)(r), F.S.)

 

(bb) Intentionally violating any rule adopted by the Board or the department, as

       appropriate.(Section 456.072(1)(b), F.S.)

 

(cc) Failing to comply with the educational course requirements for domestic

       violence.(Section 456.072(1)(s), F.S.)

 

(dd) 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.(Section 456.072(1)(o),

       F.S.)

 

(ee) Violating any provision of this part, the applicable professional practice act, a rule

       of the department or the board, or a  lawful order of the department or the board, or

       failing to comply with a lawfully issued subpoena of the department.

       (Section 456.072(1)(q), F.S.)

 

(ff) Failing to comply with the requirements for profiling and credentialing, including,

      but not limited to, failing to provide  initial information, failing to timely provide

      updated information, or making misleading, untrue, deceptive, or fraudulent

      representations on a profile, credentialing, or initial or renewal licensure

      application.(Section 456.072(1)(v), F.S.)

 

(gg) Using information about people involved in motor vehicle accidents which has been

      derived from accident reports made by law enforcement officers for the solicitation of

     the people involved in the accidents.

 

(hh) Failing to report to the Board 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.(Section 456.072(1)(w), F.S.)

 

(ii) Testing positive for any drug on any confirmed preemployment or employer-ordered

      drug screening.(Section 456.072(1)(a), ( F.S.)

 

(jj) Having a license or certificate to practice any regulated profession revoked,

      suspended, or otherwise acted against, including the denial of certification or

      licensure by another state, territory, or country.(Section 456.072(1)(a), F.S.)

 

Minor Violations or Non Compliance Issues

 

Smaller infraction include:

 

(a) Failure to make available to a patient or client upon written request, reports, copies

      of test results, or documents in the possession or under the control of the licensee or

      certificateholder which have been prepared for and paid for by the patient

      or client.

 

(b) Failure to obtain an education course on human immunodeficiency virus and

     acquired immune deficiency syndrome within six (6) months of licensure as required

     by Section 491.0065, F.S.

 

(c) Lacking continuing education hours as required by Section 491.007(2), F.S.

 

(d) Practicing on an inactive license for three (3) months or less as prohibited by Section

     456.036(1), F.S.

 

(e) Practicing on a delinquent license for three (3) months or less as prohibited by

     Section 456.036(1), F.S.

 

(f) Failure to conspicuously display the valid license as required by Section

     491.0149(1)(a), F.S.

 

(g) Failure of a licensed clinical social worker to include the words licensed clinical

     social worker or the letters LCSW on  all promotional materials, including cards,

     brochures, stationery, advertisements, and signs, naming the licensee as required

      by Section 491.0149(1)(b)1., F.S.

 

(h) Failure of a licensed marriage and family therapist to include the words licensed

      marriage and family therapist or the letters LMFT on all promotional materials,

      including cards, brochures, stationery, advertisements, and signs, naming the

      licensee as required by Section 491.0149(1)(b)2., F.S.

 

(i) Failure of a licensed mental health counselor to include the words licensed mental

     health counselor or the letters LMHC on all promotional materials, including

     cards, brochures, stationery, advertisements, and signs, naming the licensee as

     required by Section 491.0149(1)(b)3., F.S.

 

(j) Failure of a registered intern to use the words registered intern on all promotional

     materials, including cards, brochures, stationery, advertisements, and signs, naming

     the licensee as required by Section 491.0149(2)(b), F.S.

 

(k) Failure of a provisional licensee to use the words provisional licensee on all

     promotional materials, including cards, brochures, stationery, advertisements, and

     signs, naming the licensee as required by Section 491.0149(3)(b), F.S.

 

(l) Failing to comply with the educational course requirements for domestic violence as

     required by Section 456.031(1)(a), F.S.

 

 

SPECIALIZATION HYPNOSIS

 

Before practicing hypnosis for any therapeutic purpose, other than stress management, self-hypnosis, guided imagery, or relaxation, a licensee shall have successfully completed at least 50 hours of instruction in concepts of and misconceptions of hypnosis induction techniques, contraindications to hypnosis, and the relationships of personality dynamics, psychopathology and ethical issues to hypnosis.

 

 

SEX THERAPIST

 

Any licensed clinical social worker, marriage and family therapist, or mental health

counselor who holds himself out as a sex therapist shall have completed:

 

(a) A minimum of 120 hours of approved education from twelve (12) of the following areas with a minimum of 10 hours in each area taken:

 

1. Sexual and reproductive anatomy and physiology,

 

2. Developmental sexuality,

 

3. Gender-identity issues,

 

4. Socio-cultural factors in sexual values and behavior,

 

5. Medical factors related to sexuality and sexual functioning,

 

6. Interaction between sexuality and dynamics of interpersonal and family relationships,

 

7. Sexual offender treatment,

 

8. Diagnosis of sexual dysfunctions, disorders, and deviancy,

 

9. Treatment of sexual dysfunctions, disorders, and deviancy,

 

10. Legal, ethical, and forensic issues in sex therapy,

 

11. Sexually transmitted diseases,

 

12. Risk assessment with sex offenders,

 

13. Psychopharmacological therapy with sexual dysfunctions, disorders and deviancy,

 

14. Research on sexual dysfunctions, disorders and deviancy,

 

15. Sexual abuse treatment,

 

16. Victimology/victim therapy

 

17. Group therapy in treatment of sexual dysfunctions, disorders, and deviancy; and,

(b) As of January 1, 1997, in addition to the minimum hours in (2)(a) of this rule, the following shall apply:

 

 

1. A minimum of 40 client contact hours in the clinical practice of sex therapy during a minimum period of time of six months;

 

2. A minimum of 20 hours of supervision, where each supervisory session is no more than one and one-half hours in length, by

a qualified supervisor as set forth in Rule 64B4-7.004, F.A.C. during a minimum period of time of six months.

 

3. For the purpose of this section, supervision is face-to-face contact between an intern or trainee and a supervisor during

which the applicant apprises the supervisor of the diagnosis and treatment of each sex therapy client, client cases are discussed, the supervisor provides the applicant with oversight and guidance in diagnosing, treating and dealing with sex therapy clients, and the supervisor evaluates the applicants performance. Supervision must:

 

a. Focus on the raw data from the clinical sex therapy work, which is made directly available to the supervisor through such

means as written clinical materials, direct observation and video and audio recordings:

 

b. Be a process which is distinguishable from personal psychotherapy, consulting or didactic instruction; and

 

c. During the supervisory period, 50% of the required supervision may be group supervision. If group supervision is obtained,

it must be combined with individual supervision. For the purpose of this section, individual supervision is defined as one supervisor supervising no more than two (2) supervisees and group supervision is defined as one supervisor supervising more than (2) but a maximum of six

(6) supervisees in the group.

 

(3) Any licensed clinical social worker, marriage and family therapist or mental health counselor who was previously qualified to hold himself out as a sex therapist based on the education requirements existing between February 25, 1990 and December 31,1996 may continue to use the title of sex therapist.

 

 

CHAPTER 64B4-9 CLIENT RECORDS

 

A professional must maintain responsibility for all records relating to his clients for 7 years after the date of last contact with the client.  In the event a professional is no longer available to clients due to terminating their practice or relocating, notification of the termination or relocation should be attempted through the use of publication in the newspaper.  The records should continue to be retained for 2 years after the termination or relocation of the practice.

 

          Records

      Number of Years Retained

Psychotherapy records

7 years

 

Child abuse reports

7 years or until the child turns 18

 

When a therapist dies

2 years

 

When a therapist terminates practice or relocates

2 years

 

 

Technology 

 

Maintaining records is an important part of psychotherapy.  With advances in technology client notes, treatment plans, and paperwork are frequently put at increased risk. 

 

  • Good records help therapists provide quality care by providing therapists with continuity where they do not need to rely on their memory to recall details of their patients’ lives and the treatment provided.

     

     

  • Not keeping any records is below the standard of care, is unethical and, in many states, illegal.

     

     

  • In case of civil, criminal or administrative litigation, it is often not the therapist’s word against the client’s, but the client’s word against the psychotherapy records. Many boards make the decision of whether to pursue a case based on experts who develop their opinion from reading the clients’ complaints and the therapists’ records but not necessarily interviewing the therapists themselves.

     

     

  • If the treating therapist becomes disabled, dies or cannot continue to provide care for other reasons, clinical records can help the next treating therapist with information and the clients with continuity.

 

  • Good records help therapists provide quality care by providing therapists with continuity where they do not need to rely on their memory to recall details of their patients’ lives and the treatment provided.

     

     

  • Not keeping any records is below the standard of care, is unethical and, in many states, illegal.

     

     

  • In case of civil, criminal or administrative litigation, it is often not the therapist’s word against the client’s, but the client’s word against the psychotherapy records. Many boards make the decision of whether to pursue a case based on experts who develop their opinion from reading the clients’ complaints and the therapists’ records but not necessarily interviewing the therapists themselves.

     

     

  • If the treating therapist becomes disabled, dies or cannot continue to provide care for other reasons, clinical records can help the next treating therapist with information and the clients with continuity.

If you choose to use computers, ipads, electronic notebooks, email, FAX transmissions, texts, and other forms of electronic media it is especially important for you to be security minded.

Suggested Guidelines:

  • Store hard copy records in a safe, locked place that is reasonably protected from theft, intrusion, fire, earthquake, water damage and unauthorized access.

     

     

  • Protect your computer records by use of password, virus protection, firewall and access log. Backup regularly, and store your backup disks off site in a secure location. Print hard copies of very important documents and use access log if necessary.

     

     

  • Before treatment starts present clients with Office Policies and Informed Consent forms, which include information on limitation of confidentiality, fees, third party billing, client’s rights, cancellation policies, etc.

     

     

  • Because no records are immune from disclosure, be careful in your documentation and do not include clinically superfluous details that can cause unnecessary harm for clients or others, if they are disclosed or become public.

     

    * These guidelines are meant to be aspirational and general, and may not apply to all situations, clients and settings.

     

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