WSR 09-01-188

EMERGENCY RULES

DEPARTMENT OF HEALTH


[ Filed December 24, 2008, 10:01 a.m. , effective January 1, 2009 ]


Effective Date of Rule: January 1, 2009.

Purpose: WAC 246-16-800 through 246-16-890, sanction schedule. These new rules adopt a sanction schedule for disciplinary action in all credentialed health care professions as required by section 12 of 4SHB 1103 (2008), now codified at RCW 18.130.390.

Statutory Authority for Adoption: RCW 18.130.390.

Under RCW 34.05.350 the agency for good cause finds that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.

Reasons for this Finding: In the 2008 legislative session, section 12 of 4SHB 1103 (208) [(2008)], codified as RCW 18.130.390, requires that the department adopt emergency rules effective January 1, 2009.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 8, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 8, Amended 0, Repealed 0.

Date Adopted: December 24, 2008.

B. White

for Mary C. Selecky

Secretary

OTS-2076.1

SANCTIONS
NEW SECTION
WAC 246-16-800   Sanctions -- General provisions.   (1) Applying these rules.

(a) The disciplining authorities listed in RCW 18.130.040(2) will apply these rules to determine sanctions imposed for professional misconduct by a license holder in active or expired status. The rules do not apply to applicants.

(b) The disciplining authorities will apply the rules in:

(i) Orders under RCW 18.130.110 or 18.130.160; and

(ii) Stipulations to informal disposition under RCW 18.130.172.

(c) Sanctions will begin on the effective date of the order.

(2) Selecting sanctions.

(a) The disciplining authority will select sanctions to protect the public and, if possible, rehabilitate the license holder.

(b) The disciplining authority may impose the full range of sanctions listed in RCW 18.130.160 for orders and RCW 18.130.172 for stipulations to informal dispositions.

(i) Suspension or revocation will be imposed when the license holder cannot practice with reasonable skill or safety.

(ii) Permanent revocation may be imposed when the disciplining authority finds the license holder can never be rehabilitated or can never regain ability to practice safely.

(iii) Surrender of credential may be imposed when the license holder is at the end of his/her effective practice and surrender alone is enough to protect the public. The license holder must agree to retire and not resume practice.

(iv) Indefinite suspension may be imposed in default and waiver of hearing orders.

(c) The disciplining authority may deviate from the sanction schedules in these rules if the schedule does not adequately address the facts in a case. The disciplining authority will acknowledge the deviation and state its reasons for deviating from the sanction schedules in the order or stipulation to informal disposition.

(d) If the sanction schedules in these rules do not address the misconduct, the disciplining authority will use its judgment to determine appropriate sanctions.

(3) Using sanction schedules.

(a) Step 1: The findings of fact in an order or the allegations in an informal disposition describe the misconduct. The disciplining authority uses the misconduct described to select the appropriate sanction schedule contained in WAC 246-16-810 through 246-16-860.

(i) If the act of misconduct falls in more than one sanction schedule, the greater sanction is imposed.

(ii) If different acts of misconduct fall in the same sanction schedule, the highest sanction is imposed and the other acts of misconduct are considered aggravating factors.

(b) Step 2: The disciplining authority identifies the severity of the misconduct and identifies a tier using the sanction schedule tier descriptions.

(c) Step 3: The disciplining authority identifies aggravating or mitigating factors using the list in WAC 246-16-890. The disciplining authority describes the factors in the order or stipulation to informal disposition.

(d) Step 4: The disciplining authority selects sanctions within the identified tier.

(i) Aggravating factors move the appropriate sanctions towards the maximum end of the tier.

(ii) Mitigating factors move the appropriate sanctions towards the minimum end of the tier.

(iii) Mitigating or aggravating factors may result in determination of a sanction outside the range in the tier. The disciplining authority will state its reasons for deviating from the sanction schedules in the order or stipulation to informal disposition. The disciplining authority has complied with these rules if it acknowledges the deviation and states its reasons for deviating from the sanction schedules in the order or stipulation to informal disposition.

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NEW SECTION
WAC 246-16-810   Sanction schedule -- Practice below standard of care.  


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NEW SECTION
WAC 246-16-820   Sanction schedule -- Sexual misconduct or contact.  


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NEW SECTION
WAC 246-16-830   Sanction schedule -- Abuse -- Physical and emotional.  


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NEW SECTION
WAC 246-16-840   Sanction schedule -- Diversion of controlled substances or legend drugs.  


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NEW SECTION
WAC 246-16-850   Sanction schedule -- Substance abuse.  


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NEW SECTION
WAC 246-16-860   Sanction schedule -- Criminal convictions.  


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NEW SECTION
WAC 246-16-890   Sanctions -- Aggravating and mitigating factors.   The following nonexclusive list identifies factors that may mitigate or aggravate the sanctions that should be imposed in an order or stipulation to informal disposition.

(1) Factors related to the misconduct:

(a) Gravity of the misconduct;

(b) Age, capacity and/or vulnerability of the patient, client or victim;

(c) Number or frequency of the acts of misconduct;

(d) Injury caused by the misconduct;

(e) Potential for injury to be caused by the misconduct;

(f) Degree of responsibility for the outcome;

(g) Abuse of trust;

(h) Intentional or inadvertent act(s);

(i) Motivation is criminal, immoral, dishonest or for personal gain;

(j) Length of time since the misconduct occurred.

(2) Factors related to the license holder:

(a) Experience in practice;

(b) Past disciplinary record;

(c) Previous character;

(d) Mental and/or physical health;

(e) Personal circumstances;

(f) Personal problems having a nexus with the misconduct.

(3) Factors related to the disciplinary process:

(a) Admission of key facts;

(b) Full and free disclosure to the disciplining authority;

(c) Voluntary restitution or other remedial action;

(d) Bad faith obstruction of the investigation or discipline process or proceedings;

(e) False evidence, statements or deceptive practices during the investigation or discipline process or proceedings;

(f) Remorse or awareness that the conduct was wrong;

(g) Impact on the patient, client, or victim.

(4) General factors:

(a) License holder's knowledge, intent, and degree of responsibility;

(b) Presence or pattern of other violations;

(c) Present moral fitness of the license holder;

(d) Potential for successful rehabilitation;

(e) Present competence to practice;

(f) Dishonest or selfish motives;

(g) Illegal conduct;

(h) Heinousness of the misconduct;

(i) Ill repute upon the profession;

(j) Isolated incident unlikely to reoccur.

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Washington State Code Reviser's Office