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Are you being investigated as a respiratory therapist for accepting and performing professional responsibilities which you knew, or should have known, you were not competent to perform?

September 27, 2016
Est read time: 4 minutes

Have you received an administrative complaint against your respiratory therapist license for accepting and performing professional responsibilities which you knew, or should have known, you were not competent to perform? If you have, it is very important that you contact an experienced health care attorney to go over the charges. These charges are serious and can have a negative impact on your license and your ability to practice as a physical therapist in Florida.

The Law

The law states that disciplinary action can be taken against your license for accepting and performing professional responsibilities which you knew, or should have known, you were not competent to perform. Florida law on point here is Florida Statute 468.365(1)(m). The statute says the following in particular:

 

(1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

 

(m) Accepting and performing professional responsibilities which the licensee knows, or has reason to know, she or he is not competent to perform.

 

This statute applies to licensees who, not only accept, but also perform those responsibilities. Note also that you do not have to have actual knowledge that you are not competent to perform the professional responsibilities. The statute covers anyone who has reason to know they are not competent to perform. This means you don't need actual knowledge, constructive knowledge will do the trick as well. If you have had complaints made against your license for violation of this statute, you should contact an experienced health care attorney immediately to go over your options. There can be severe repercussions for you if you wait.

Penalties

There are a range of actions that can be taken against you should the Board of Respiratory Care decide to take disciplinary action against you. The penalties you could face are found in the Disciplinary Guidelines for the Board of Physical Therapy, particularly in Rule 64B32-5.001 in the Florida Administrative Code. The rule states the following for disciplinary guidelines for violation of the statute:

 
FIRST OFFENSE:
From reprimand to one year suspension followed by two years probation and an administrative fine from $300 to
$2,000.

 

SECOND OFFENSE:
From six months suspension followed by one year probation with conditions to revocation and a fine from $1,000 to $10,000.

 

THIRD OFFENSE
From one year suspension followed by two years probation to revocation with no ability to reapply and a fine from $3,000 to $10,000.

 

For a first offense, you could face a reprimand, up to a 1 year suspension, which would be followed by 2 years probation and a fine from $300 to $2,000. Your license could be suspended for a first offense. This is serious. For a second offense, you could face a 6 month suspension followed by 1 year probation with conditions, all the way up to revocation and a fine from $1,000 to $10,000. Your license could be revoked for a second offense. For a third offense, you could face a one year suspension followed by 2 years probation, all the way to revocation with no ability to reapply for licensure, with a fine from $3,000 to $10,000. Your license could not be revoked for a third offense, but the board could prevent you from ever reapplying for another license. You should also be aware that these are guidelines that the board should follow in handing out discipline, but are not set in stone, and can be accompanied by other penalties or deviated from. These penalties can be found in Florida Statute 456.072(2), which you should review with your health care attorney.

Aggravating/Mitigating Circumstances

The board hearing your case can take into account various factors that could affect the discipline you receive. These factors are called aggravating and mitigating circumstances. Aggravating circumstances are factors that can hurt your case. If aggravating circumstances are proven you could face harsher penalties. Mitigating circumstances are factors that can help your case. If mitigating circumstances are proven you could face lesser penalties. These factors can also be found in rule 64B32-5.001 in the Florida Administrative Code. If either side can prove with clear and convincing evidence the aggravating or mitigating circumstances, the discipline you face could be altered by the board. Here are the factors:

(2) The range of disciplinary penalties which the Board may impose includes any and all set forth in Section 456.072, F.S., unless the conduct to be disciplined falls within the purview of Section 456.0635, F.S., in which case the Board shall impose the penalty specified in Section 456.0635, F.S. In determining the appropriate disciplinary action to be imposed in each case, the Board shall take into consideration the following factors:
(a) The danger to the public;
(b) The length of time since the date of the violation;
(c) The number of previous disciplinary cases filed against the applicant or licensee;
(d) The length of time the applicant or licensee has practiced;
(e) The actual damage, physical or otherwise, to the patient;
(f) The deterrent effect of the penalty imposed;
(g) The effect of the penalty upon the applicant’s or licensee’s livelihood;
(h) Any efforts for rehabilitation;
(i) Any other mitigating or aggravating circumstances.

The board can take into account any of these factors, or other factors, in your hearing. The board can deviate from the standard disciplinary guidelines if they find that any of these aggravating or mitigating circumstances exist. These are very important factors that you should discuss with your health care attorney.

Conclusion

If you are a licensed health care professional in Florida and have received an administrative complaint for violation of the statutes, you are probably concerned about how this may affect your license. To set up a FREE no obligation consultation with Jeff Howell contact the law firm of Howell, Buchan & Strong, Attorneys at Law at 850-877-7776. We represent licensed health care professionals and facilities statewide, including out of state clients who are concerned about the status of their Florida license

Have Questions? Let's Talk

Contact the law firm of Howell, Buchan & Strong at 850-877-7776 to set up a FREE no-obligation consultation. Our firm represents physicians, nurses, psychologists, and other licensed professionals statewide.
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