H-1456

AN ACT Relating to delegation of preoperative and postoperative surgical care; amending RCW 18.130.180; adding a new chapter to Title 18 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature finds that some surgeons delegate preoperative and postoperative surgical care to nonsurgeons as part of a referral arrangement. The surgeon refers such care to practitioners not licensed to do surgery in exchange for surgical referrals. Irrespective of motive, the legislature finds that the delegation of such care to nonsurgeons must be done, if at all, with care and under circumstances in which the care of the patient is adequately provided for.

The legislature finds that the performance by practitioners without adequate training of preoperative and postoperative surgical care presents a threat to the safety of surgical patients, threatens to increase health care costs through unnecessary complications, and aids and abets the unauthorized practice of surgical professions. The legislature has concluded that this chapter is necessary to minimize those risks while allowing flexibility in the provision of surgical care.

NEW SECTION. Sec. 2. Unless the context requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Practitioners licensed to provide delegated tasks of preoperative and postoperative care" means registered nurses licensed pursuant to chapter 18.88 RCW, licensed practical nurses licensed pursuant to chapter 18.78 RCW, physician assistants licensed pursuant to chapter 18.71A RCW, or osteopathic physician assistants licensed pursuant to chapter 18.57A RCW, when performing tasks within their lawful scopes of practice.

(2) "Practitioners licensed to provide surgical care" and "surgeons" means doctors of medicine licensed pursuant to chapter 18.71 RCW, doctors of osteopathic medicine and surgery licensed pursuant to chapter 18.57 RCW, doctors of podiatry licensed pursuant to chapter 18.22 RCW, and doctors of dentistry licensed pursuant to chapter 18.32 RCW, when performing surgery within their lawful scopes of practice.

(3) "Preoperative surgical care" includes, but is not limited to, evaluation, diagnosis, selection of treatment alternatives, discussion of advisability of surgery with the patient, and related tasks.

(4) "Postoperative surgical care" includes, but is not limited to, the evaluation, management, and treatment of the patient's condition related to the surgery and common sequelae and complications thereof and lasts until the healing and recuperation phases are complete, but does not include rehabilitation.

(5) "Surgical care" means that branch of medicine which, by way of illustration and not limitation, treats diseases, injuries, and deformities by manual operative methods or localized application of mechanical or other energy to repair, remove, disrupt, or otherwise physically alter biological tissue for the intended treatment of disease, injury, or deformity. An operation is the application of surgery and can include, by way of illustration, the following means: Mechanical, photo including any form of laser, thermal, cryotherapy or instrumentation, chemical, ultrasound, implantable devices, extricating or removing substances from tissue, and other means commonly accepted within the medical community.

NEW SECTION. Sec. 3. Preoperative and postoperative surgical care are integral parts of surgical care and may be delegated by a surgeon only under the following circumstances:

(1) Preoperative and postoperative surgical care may be performed away from the site of the surgical procedure only by practitioners licensed to provide the surgical care involved.

(2) Preoperative and postoperative surgical care may be performed at the site of the surgical care by practitioners licensed to provide the surgical care in question or by practitioners licensed to perform delegated tasks of preoperative and postoperative surgical care, but only under the supervision of the surgeon or a practitioner licensed to provide the surgical care involved.

(3) An exception has been granted by the examining board under section 4 of this act.

Nothing in this section invalidates the usual surgical procedures of a hospital licensed pursuant to chapter 70.41 RCW when operating pursuant to established protocols approved by its governing authority and subject to approval by the hospital licensing authority.

NEW SECTION. Sec. 4. The examining board under which the surgeon involved is licensed may grant exceptions to this chapter on a year-to-year basis, after a contested hearing, if:

(1) The rural or institutional residence of the patient and availability of practitioners licensed to provide the surgical care in the patient's locale make adherence to this chapter impractical or unduly costly given the risk involved; and

(2) The petitioner for the exception has instituted adequate circumstantial guarantees that the quality of the patient's care will be ensured.

No exception may authorize a practitioner to exceed his or her lawful scope of practice.

NEW SECTION. Sec. 5. The delegation of preoperative and postoperative care is a matter affecting the public interest for the purpose of applying chapter 19.86 RCW. Violation of this chapter is not reasonable in relation to the development and preservation of business. A violation of this chapter constitutes an unfair or deceptive act or practice in trade or commerce for the purpose of applying chapter 19.86 RCW.

NEW SECTION. Sec. 6. Any activity conducted in violation of any provision of this chapter may be enjoined in an action commenced by the disciplining authority with jurisdiction over the practitioner licensed to provide the surgical care.

NEW SECTION. Sec. 7. Violations of this chapter shall be considered negligence per se.

Sec. 8. RCW 18.130.180 and 1989 c 270 s 33 are each amended to read as follows:

The following conduct, acts, or conditions constitute unprofessional conduct for any license holder or applicant under the jurisdiction of this chapter:

(1) The commission of any act involving moral turpitude, dishonesty, or corruption relating to the practice of the person's profession, whether the act constitutes a crime or not. If the act constitutes a crime, conviction in a criminal proceeding is not a condition precedent to disciplinary action. Upon such a conviction, however, the judgment and sentence is conclusive evidence at the ensuing disciplinary hearing of the guilt of the license holder or applicant of the crime described in the indictment or information, and of the person's violation of the statute on which it is based. For the purposes of this section, conviction includes all instances in which a plea of guilty or nolo contendere is the basis for the conviction and all proceedings in which the sentence has been deferred or suspended. Nothing in this section abrogates rights guaranteed under chapter 9.96A RCW;

(2) Misrepresentation or concealment of a material fact in obtaining a license or in reinstatement thereof;

(3) All advertising which is false, fraudulent, or misleading;

(4) Incompetence, negligence, or malpractice which results in injury to a patient or which creates an unreasonable risk that a patient may be harmed;

(5) Suspension, revocation, or restriction of the individual's license to practice the profession by competent authority in any state, federal, or foreign jurisdiction, a certified copy of the order, stipulation, or agreement being conclusive evidence of the revocation, suspension, or restriction;

(6) The possession, use, prescription for use, or distribution of controlled substances or legend drugs in any way other than for legitimate or therapeutic purposes, diversion of controlled substances or legend drugs, the violation of any drug law, or prescribing controlled substances for oneself;

(7) Violation of any state or federal statute or administrative rule regulating the profession in question, including any statute or rule defining or establishing standards of patient care or professional conduct or practice;

(8) Failure to cooperate with the disciplining authority by:

(a) Not furnishing any papers or documents;

(b) Not furnishing in writing a full and complete explanation covering the matter contained in the complaint filed with the disciplining authority; or

(c) Not responding to subpoenas issued by the disciplining authority, whether or not the recipient of the subpoena is the accused in the proceeding;

(9) Failure to comply with an order issued by the disciplining authority or an assurance of discontinuance entered into with the disciplining authority;

(10) Aiding or abetting an unlicensed person to practice when a license is required;

(11) Violations of rules established by any health agency;

(12) Practice beyond the scope of practice as defined by law or rule;

(13) Misrepresentation or fraud in any aspect of the conduct of the business or profession;

(14) Failure to adequately supervise auxiliary staff to the extent that the consumer's health or safety is at risk;

(15) Engaging in a profession involving contact with the public while suffering from a contagious or infectious disease involving serious risk to public health;

(16) Promotion for personal gain of any unnecessary or inefficacious drug, device, treatment, procedure, or service;

(17) Conviction of any gross misdemeanor or felony relating to the practice of the person's profession. For the purposes of this subsection, conviction includes all instances in which a plea of guilty or nolo contendere is the basis for conviction and all proceedings in which the sentence has been deferred or suspended. Nothing in this section abrogates rights guaranteed under chapter 9.96A RCW;

(18) The procuring, or aiding or abetting in procuring, a criminal abortion;

(19) The offering, undertaking, or agreeing to cure or treat disease by a secret method, procedure, treatment, or medicine, or the treating, operating, or prescribing for any health condition by a method, means, or procedure which the licensee refuses to divulge upon demand of the disciplining authority;

(20) The willful betrayal of a practitioner-patient privilege as recognized by law;

(21) Violation of chapter 19.68 RCW;

(22) Interference with an investigation or disciplinary proceeding by willful misrepresentation of facts before the disciplining authority or its authorized representative, or by the use of threats or harassment against any patient or witness to prevent them from providing evidence in a disciplinary proceeding or any other legal action;

(23) Current misuse of:

(a) Alcohol;

(b) Controlled substances; or

(24) Abuse of a client or patient or sexual contact with a client or patient;

(25) Violation of chapter 18.-- RCW (sections 1 through 7 of this act).

NEW SECTION. Sec. 9. Sections 1 through 7 of this act shall constitute a new chapter in Title 18 RCW.