HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 687 Free Speech of Health Care Practitioners
SPONSOR(S): Professions & Public Health Subcommittee, Drake
TIED BILLS: IDEN./SIM. BILLS: CS/SB 1184
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Professions & Public Health Subcommittee 12 Y, 5 N, As CS Rahming McElroy
SUMMARY ANALYSIS
The First Amendment of the United States Constitution protects the right to freedom of expression from
government interference. Under current law, government regulation based on the content of speech is
presumptively invalid and is 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.
The Division of Medical Quality Assurance, within the Department of Health (DOH), has general regulatory
authority over health care practitioners. Current law authorizes a regulatory board or DOH, if there is no board,
to discipline a health care practitioner’s license for a number of offenses, including failing to adhere to the
applicable standard of care and making misleading, deceptive, or fraudulent representations in or related to the
practice of the licensee’s profession. DOH and the boards do not have the authority to regulate free speech
and thus have not taken any adverse actions against a health care practitioner’s licensed based solely on free
speech.
Under current law, the DOH must “promptly” provide a copy of only legally sufficient complaints that result in
the initiation of a disciplinary investigation of a health care practitioner to the practitioner or the practitioner’s
attorney. “Promptly” is not defined in statute or rule.
The DOH does not license healthcare practitioners by specialty or subspecialty based upon national board
certification; however, current law prohibits osteopathic physicians from holding themselves out as board-
certified specialists unless they have obtained that specialty from an approved recognizing agency. Rule
64B15-14.001, F.A.C., relating to advertising, authorizes the Board of Osteopathic Medicine to approve
recognizing agencies for purposes of certifying Florida-licensed osteopathic physicians as specialists in certain
aspects of the practice of osteopathic medicine. This rule establishes requirements for advertising by
osteopathic physicians and does not confer upon the state any authority over the recognizing agencies.
CS/HB 687 prohibits a board within the jurisdiction of the DOH, or the DOH if there is no board, and
recognizing agencies from reprimanding, sanctioning, revoking or threatening to revoke a license, certificate, or
registration of a health care practitioner for exercising their constitutional right of free speech, including through
the use of a social media platform. The bill provides an exception to this prohibition if the DOH, board, or
recognizing agency proves beyond a reasonable doubt that a health care practitioner’s use of free speech has
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 physical harm.
The bill also requires the DOH, board, or recognizing agency to provide the health care practitioner with all
complaints, rather than only legally sufficient complaints, that may result in licensure revocation within seven
days after receiving such complaint.
The bill will have a significant, negative fiscal impact on the DOH and no fiscal impact on local governments.
The bill provides an effective date of July 1, 2022.
FULL ANALYSIS
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
Licensure and Regulation of Physicians
The Division of Medical Quality Assurance (MQA), within the Department of Health (DOH), has general
regulatory authority over health care practitioners.1 The MQA works in conjunction with 22 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. 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 III of ch. 483, F.S.;
Medical physicists, as provided under part IV 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.
Recognizing Agencies
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, athle tic 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.
2 Florida Department of Health (DOH), Division of Medical Quality Assurance, Annual Report and Long-Range Plan, Fiscal Year 2020-
2021, p. 6, https://mqawebteam.com/annualreports/2021/8/ (last visited Feb. 9, 2022).
3 S. 456.001(4), F.S; Id.
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The DOH does not license healthcare practitioners by specialty or subspecialty based upon national
board certification; however, ch. 459, F.S., prohibits osteopathic physicians from holding themselves
out as board-certified specialists unless they have obtained that specialty from an approved recognizing
agency.4 Rule 64B15-14.001, F.A.C., relating to advertising, authorizes the Board of Osteopathic
Medicine to approve recognizing agencies for purposes of certifying Florida-licensed osteopathic
physicians as specialists in certain aspects of the practice of osteopathic medicine. The Board has
approved the following 501(c) private, national organizations, as recognizing agencies:
American Board of Medical Specialties
American Osteopathic Association
American Association of Physician Specialists, Inc.
American Board of Interventional Pain Physicians
This rule establishes requirements for advertising by osteopathic physicians and does not confer upon
the state any authority over the recognizing agencies.
Discipline of Health Care Practitioners
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.
If the board or DOH finds that a licensee committed a violation, the board or DOH may: 5
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.
Investigations
The DOH, on behalf of the professional boards, investigates any complaint that is filed against a health
care practitioner if the complaint is in writing, signed by the complainant, and legally sufficient.6 A
complaint is legally sufficient if it contains allegations of ultimate facts that, if true, show that a regulated
practitioner has violated ch. 456, F.S., their practice act, or a rule of their board or the DOH.7
4 S. 459.015, F.S. Similar provisions are contained within ch. 458 (allopathic physicians), ch. 464 (nurses) and ch. 466
(dentists).
5 S. 456.073(1), F.S.
6 S. 456.073(1), F.S.
7 Id.
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The Consumer Services Unit within MQA receives the complaints and refers them to the closest
Investigative Services Unit (ISU) office.8 The ISU investigates complaints against health care
practitioners.9 Complaints that present an immediate threat to public safety are given priority; however,
all complaints are investigated as timely as possible. When the complaint is assigned to an investigator,
the complainant is contacted and given the opportunity to provide additional information. A thorough
investigation is then conducted. The steps taken in the investigation are determined by the specifics of
the allegations, but generally include the following:10
Obtaining medical records, documents, and evidence;
Locating and interviewing the complainant, the patient, the practitioner, and any witnesses; and
Drafting and serving subpoenas for necessary information.
The ISU includes a staff of professional investigators and senior pharmacists who conduct interviews,
collect documents and evidence, prepare investigative reports for the Prosecution Services Unit (PSU),
and serve subpoenas and official orders for the DOH. 11
The PSU is responsible for providing legal services to the DOH in the regulation of all health care
boards and councils.12 The PSU will review the investigative file and report from ISU and recommend a
course of action to the State Surgeon General (when an immediate threat to the health, safety, and
welfare of the people of Florida exists), the appropriate board’s probable cause panel, or the DOH, if
there is no board, which may include:13
Having the file reviewed by an expert;
Issuing a closing order;
Filing an administrative complaint; or
Issuing an emergency order (emergency restriction order or emergency suspension order).
If the ISU investigative file received by PSU does not pose an immediate threat to the health, safety,
and welfare of the people of Florida, then the PSU attorneys review the file and determine, first,
whether expert review is required and, then, whether to recommend to the board’s probable cause
panel a closing order, an administrative complaint, or a letter of guidance.14
Final DOH action, including all of the above, as well as cases where the practitioner has failed to
respond to an administrative complaint, are presented before the applicable board, or DOH if there is
no board. The practitioner may be required to appear. The complainant is notified of the date and
location of the hearing and may attend. If the practitioner is entitled to, and does, appeal the final
decision, PSU defends the final order before the appropriate appellate court. 15
Health Care Practitioner Notification of Complaint
Current law does not require the DOH to provide a health care practitioner with a copy of any complaint
it has received that may result in revocation of licensure, certification, or registration, within a specified
time period. Rather, current law requires the DOH to “promptly” provide a copy of any complaint or
document that resulted in the initiation16 of a disciplinary investigation of a health care practitioner to the
8 DOH, Consumer Services, http://www.floridahealth.gov/licensing-and-regulation/enforcement/admin-complaint-process/consumer-
services.html (last visited Feb. 10, 2022).
9 DOH, Investigative Services, http://www.floridahealth.gov/licensing-and-regulation/enforcement/admin-complaint-process/isu.html
(last visited Feb. 10, 2022).
10 Id.
11 Id.
12 DOH, Prosecution Services, http://www.floridahealth.gov/licensing-and-regulation/enforcement/admin-complaint-process/psu.html
(last visited Feb. 10, 2022).
13 Id.
14 S. 456.073(2), F.S. The DOH may recommend a letter of guidance in lieu of finding probable cause if the subject has not previ ously
been issued a letter of guidance for a related offense.
15 Supra note 12.
16 The initiation of the investigation occurs upon establishment of legal sufficiency. DOH, Agency Bill Analysis of 2022 HB 687, p. 3.
(Feb. 4, 2022).
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practitioner or the practitioner’s attorney.17 This means that the DOH is not required to provide copies of
legally insufficient complaints.
Additionally, a complaint and all information obtained pursuant to the investigation by the DOH are
confidential and exempt from public disclosure until 10 days after the probable cause panel or DOH
makes a probable cause determination, or until the regulated professional or subject of the investigation
waives confidentiality, whichever occurs first.18
Currently, health care practitioners must provide a mailing address and a telephone number when
applying for licensure or licensure renewal. Health care practitioners are also required to notify the DOH
of address changes for communication purposes. The DOH does not have the authority to require
applicants to provide e-mail addresses for the purpose of receiving correspondence from the
department. Thus, correspondence is generally provided to licensees through the mail. 19 Based on the
most current Service Standards Maps provided by the United States Postal Service, the average time
for delivery in Florida is four days.20
During FY 2020-2021, the DOH prosecuted 356 health care license revocations. The average number
of all DOH complaints received in the last three fiscal years was 41,209.21
Due Process Under Chapter 120, F.S.
Chapter 120, F.S., known as the Administrative Procedure Act, (APA), provides uniform procedures for
the exercise of specified authority. Section 120.60, F.S., pertains to licensing and provides for due
process for persons seeking government-issued licensure or who have been granted such licensure.
Under the APA, no re