8.3 Grounds for Disciplinary Action, Sexual Misconduct, Investigations & Peer Review
Key Takeaways
- Section 466.028(1), F.S., enumerates the grounds for disciplinary action, including fraudulent licensure, advertising violations, records failures, delegation to unqualified persons, and practice below minimum standards.
- Section 466.027 defines sexual misconduct as using the dentist-patient relationship to induce or engage the patient in sexual activity outside the scope of practice or generally accepted examination or treatment, and prohibits it.
- Section 466.0275 authorises lawful investigations, consent handwriting samples, and mental or physical examinations of licensees.
- Section 466.022 requires a peer review organisation member who believes a licensee has violated the chapter to report the name to the Department under s. 466.028(1)(f).
- Peer review records are not subject to discovery or introduction in a disciplinary proceeding, but information obtained from original sources remains discoverable.
Grounds for Discipline and Related Statutes
Section 466.028(1) — the catalogue
Section 466.028(1) enumerates the acts that constitute grounds for denial of a licence or disciplinary action. It is long, and the examination does not require you to recite paragraph letters. It does require you to recognise the recurring categories and the handful of paragraph references that appear throughout the rules:
| Category | Representative grounds |
|---|---|
| Licensure integrity | Attempting to obtain, obtaining, or renewing a licence by bribery, fraudulent misrepresentation, or error of the Department or Board |
| Discipline elsewhere | Having a licence acted against by another jurisdiction's licensing authority; failing to report to the Board in writing within 30 days if action has been taken against one's licence in another jurisdiction |
| Criminal conduct | Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime that directly relates to the practice or ability to practise dentistry |
| Advertising | False, deceptive or misleading advertising — s. 466.028(1)(d), the hook for Rule Chapter 64B5-4 violations |
| Fee practices | Split-fee arrangements, kickbacks, rebates and paying or receiving unearned commissions or bonuses |
| Unlicensed practice | Aiding, assisting, procuring or advising an unlicensed person to practise contrary to the chapter — s. 466.028(1)(g) |
| Records | Failing to keep written dental records and medical history records justifying the course of treatment — s. 466.028(1)(m); failing to release patient records on written request — s. 466.028(1)(n) |
| Delegation | Delegating professional responsibilities to a person the licensee knows is not qualified by training, experience, or licensure to perform them |
| Sanitation and standard of care | Failing to provide reasonable sanitary facilities and conditions — s. 466.028(1)(u); being guilty of incompetence or negligence / practice below minimum acceptable standards — s. 466.028(1)(x) |
| Administrative | Failing to notify the Board of a change of address — s. 466.028(1)(mm), via Rule 64B5-17.0011; presigning laboratory work order forms — s. 466.028(1)(dd) |
Section 456.072, F.S., supplies additional cross-profession grounds and the sanction menu, which under s. 456.072(2) includes refusal to certify an application, suspension or permanent revocation, restriction of practice, an administrative fine, reprimand, probation, corrective action, remedial education, and the imposition of costs of investigation and prosecution.
Sexual misconduct — s. 466.027
"The dentist-patient relationship is founded on mutual trust. Sexual misconduct in the practice of dentistry means violation of the dentist-patient relationship through which the dentist uses said relationship to induce or attempt to induce the patient to engage, or to engage or attempt to engage the patient, in sexual activity outside the scope of the practice or the scope of generally accepted examination or treatment of the patient. Sexual misconduct in the practice of dentistry is prohibited."
Three features matter. The definition turns on use of the professional relationship, not on force or on the absence of consent. Attempts are covered — inducing, attempting to induce, engaging, or attempting to engage. And the standard is measured against the scope of practice or of generally accepted examination or treatment, so conduct that would be unremarkable between private persons is misconduct when it occurs through the professional relationship.
Section 456.063, F.S., contains the parallel cross-profession prohibition, and s. 466.003(15) makes violations of s. 466.027 in a health access setting immediately reportable to the Board as a condition of the setting's status.
Lawful investigations — s. 466.0275
Section 466.0275, "Lawful investigations; consent handwriting samples; mental or physical examination," supplies the Department's investigative tools specific to dentistry. It supplements the general investigative machinery in s. 456.073, F.S., under which the Department receives complaints, investigates, and presents the matter to a probable cause panel.
Peer review — s. 466.022
The Legislature finds that effective peer review of consumer complaints by professional associations of dentists is a valuable service to the public, and builds a structure with three parts:
1. A reporting duty. "In performing such service, any member of a peer review organization or committee shall, pursuant to s. 466.028(1)(f), report to the department the name of any licensee who he or she believes has violated this chapter." The duty is mandatory, and it is triggered by belief, not by proof.
2. Immunity. A peer review committee member is afforded the privileges and immunities of any other complainant or witness provided by s. 456.073(11). A professional organisation or association of dentists that sponsors, sanctions, operates or participates in peer review activities receives the same privileges and immunities afforded to a member of a duly constituted medical review committee by s. 766.101(3).
3. Confidentiality, with a limit. Information obtained from the official records of peer review organisations or committees is not subject to discovery or introduction into evidence in any disciplinary proceeding against a licensee. No person who voluntarily serves on a peer review committee, or who investigates a complaint for it, may be permitted or required to testify in such a proceeding about evidence or matters produced during the committee's proceedings, or about its findings, recommendations, evaluations, opinions or actions.
But: "nothing in this section shall be construed to mean that information, documents, or records otherwise available and obtained from original sources are immune from discovery or use in any such disciplinary proceeding merely because they were presented during proceedings of a peer review organization or committee." Peer review protects the committee's own work product; it does not launder the underlying evidence. Members are directed to assist the Department in identifying such original sources when possible.
Section 466.022(3) adds that peer review information obtained by the Department as background information remains subject to the section's confidentiality provisions.
Practitioner profile for controlled substance prescribers — s. 466.02751
Section 466.02751, F.S., provides for the establishment of a practitioner profile for designation as a controlled substance prescribing practitioner. It sits alongside the general practitioner profile requirements in s. 456.041, F.S., which require the Department to compile and publish a profile for each licensee.
The reporting duties, collected
| Duty | Deadline | Authority |
|---|---|---|
| Report action taken against a licence in another jurisdiction | 30 days, in writing, to the Board | s. 466.028(1) |
| Report an adverse incident | 48 hours, complete report in 30 days | s. 466.017(9)–(11); Rule 64B5-14.006 |
| Peer review member reports a licensee believed to have violated the chapter | On forming the belief | s. 466.022(1); s. 466.028(1)(f) |
| Health access setting reports s. 466.027 / s. 466.028 and standard of care violations | Immediately | s. 466.003(15) |
| Notify the Department of change of mailing address and place of practice | On change | Rule 64B5-17.0011; s. 466.028(1)(mm) |
Under s. 466.027, F.S., what makes conduct sexual misconduct in the practice of dentistry?
A peer review committee reviewed a complaint and obtained a copy of the patient's original treatment record from the practice. In a later disciplinary proceeding, what is the status of that record under s. 466.022, F.S.?
Within how many days must a Florida dental licensee report in writing to the Board that action has been taken against their licence in another jurisdiction?