BP BHEAD INT H

AN ACT Relating to prescription of controlled substances for intractable pain; amending RCW 18.130.180; adding a new section to chapter 18.130 RCW; and creating a new section.

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

NEW SECTION. Sec. 1. Cancer is increasingly prevalent today in America with more than one million newly diagnosed cases annually. Among the most tragic victims are those whose lives are consumed by chronic, intractable pain. Some twenty million Americans suffer chronic pain stemming from a variety of causes. Chronic pain is identified as one of the nation's most costly health problems involving nearly fifty billion dollars in medical and social costs, including severe psychological problems that can destroy the will to live.

While opiates are extremely effective for treating pain, chronic pain is commonly undertreated by physicians because of the fear of addiction of patients. Recent studies however have shown that persons with intractable pain can be treated with narcotics with little risk of developing the self-destructive behavior characteristic of addiction because their motivations and psychological reactions and tolerances are different.

In addition, physicians report that the threat of disciplinary action for overprescribing acts as a deterrent to physicians in treating chronic pain patients with opiates. New clinical guidelines to correct the problem of inadequate treatment of pain in patients with cancer were published this year by a research arm of the federal department of health and human services. In addition, the states of California and Texas have recently enacted policies relating to the treatment of chronic pain.

It is the intent of the legislature that the state medical quality assurance commission develop and implement guidelines for the treatment of intractable chronic pain in accordance with recognized national standards pursuant to this act.

Sec. 2. RCW 18.130.180 and 1993 c 367 s 22 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. The use of a nontraditional treatment by itself shall not constitute unprofessional conduct, provided that it does not result in injury to a patient or create 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. The prescription of controlled substances or legend drugs for patients suffering intractable pain in accordance with section 3 of this act is not to be construed as unprofessional conduct;

(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 disciplinary authority or a stipulation for informal disposition entered into with the disciplinary 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) Acceptance of more than a nominal gratuity, hospitality, or subsidy offered by a representative or vendor of medical or health-related products or services intended for patients, in contemplation of a sale or for use in research publishable in professional journals, where a conflict of interest is presented, as defined by rules of the disciplining authority, in consultation with the department, based on recognized professional ethical standards.

NEW SECTION. Sec. 3. A new section is added to chapter 18.130 RCW to read as follows:

(1) A physician and surgeon may prescribe or administer controlled substances to a person in the course of the physician and surgeon's treatment of that person for a diagnosed condition causing intractable pain.

(2) "Intractable pain," as used in this section, means a pain state in which the cause of the pain cannot be removed or otherwise treated and which in the generally accepted course of medical practice no relief or cure of the cause of the pain is possible or none has been found after reasonable efforts including, but not limited to, evaluation by the attending physician and surgeon and, if available, one or more physicians and surgeons specializing in the treatment of the area, system, or organ of the body perceived as the source of the pain.

(3) No physician and surgeon is subject to disciplinary action by the medical quality assurance commission for prescribing or administering controlled substances in the course of treatment of a person for intractable pain.

(4) This section does not apply to those persons being treated by the physician and surgeon for chemical dependency because of their use of drugs or controlled substances.

(5) This section does not authorize a physician and surgeon to prescribe or administer controlled substances to a person the physician and surgeon knows to be using drugs or substances for nontherapeutic purposes.

(6) This section does not affect the power of the commission to deny, revoke, or suspend the license of a physician and surgeon, or otherwise discipline, who does any of the following:

(a) Prescribes or administers a controlled substance or treatment that is nontherapeutic in nature or nontherapeutic in the manner the controlled substance or treatment is administered or prescribed or is for a nontherapeutic purpose in a nontherapeutic manner.

(b) Fails to keep complete and accurate records of purchases and disposals of substances listed in chapter 69.50 RCW, or of controlled substances scheduled in, or pursuant to, the federal comprehensive drug abuse prevention and control act of 1970. A physician and surgeon shall keep records of his or her purchases and disposals of these drugs, including the date of purchase, the date and records of the sale or disposal of the drugs by the physician and surgeon, the name and address of the person receiving the drugs, and the reason for the disposal of or the dispensing of the drugs to the person and shall otherwise comply with all state recordkeeping requirements for controlled substances.

(c) Writes false or fictitious prescriptions for controlled substances listed in chapter 69.50 RCW or scheduled in the federal comprehensive drug abuse prevention and control act of 1970.

(d) Prescribes, administers, or dispenses in a manner not consistent with public health and welfare controlled substances listed in chapter 69.50 RCW or scheduled in the federal comprehensive drug abuse prevention and control act of 1970.

(7) Nothing in this section may be construed to prohibit the governing body of a hospital from taking disciplinary actions against a physician and surgeon under professional peer review procedures.