1827-S

AN ACT Relating to conflicts of interest among health care providers, facilities, and third-party payers; amending RCW 18.35.110, 18.46.050, 18.51.054, 18.51.060, 18.100.140, 18.130.180, 48.05.140, 48.62.091, 51.48.280, 70.41.130, 70.42.120, 70.42.130, 70.42.140, 70.42.150, 70.42.160, 70.127.170, 70.175.100, and 71.12.590; adding a new section to chapter 43.70 RCW; adding a new chapter to Title 19 RCW; creating new sections; repealing RCW 19.68.010, 19.68.020, 19.68.030, and 19.68.040; prescribing penalties; and providing an effective date.

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

NEW SECTION. Sec. 1. INTENT. The legislature recognizes that patient or client referrals by health care providers, facilities, or third-party payers for health services to an entity in which the referring health care provider, facility, or third-party payer has an investment or compensation interest presents a potential conflict of interest. Self-referrals may result in overutilization of health services or goods, increase overall costs of the health system, and affect the quality of health services. These referral practices may limit or completely eliminate competitive alternatives in the health care market. In some instances, however, these referral practices may expand and improve health services or may make services available that were previously unavailable. They may also provide lower-cost options to patients or increase competition.

Managed competition is a central component of Washington's health services act, chapter 43.72 RCW, and is intended to promote more cost‑efficient health delivery arrangements. However, financial incentives under managed competition, particularly capitated rates paid to providers, facilities, and third-party payers, may also translate into pressures for underutilization of health services or goods. In the implementation of chapter 43.72 RCW, a number of systems will be initiated to identify underutilization with the intention of preventing compromised patient care. Those systems include reporting requirements, quality standards, and member grievance procedures. It is also the intent of this chapter to authorize the department of health to develop regulations to prevent health care providers, facilities, or third-party payers from receiving inappropriate financial gain through underutilization of health services and goods.

It is the intent of the legislature to protect the citizens of Washington from unnecessary and unduly costly health care expenditures and to prevent limitations on access to health services by underutilization of services for financial gain. It is also the intent of the legislature to provide guidance to health care providers, facilities, and third-party payers regarding acceptable patient referrals.

Recognizing the need for flexibility to respond quickly to changes in the delivery of health services, to avoid results beyond the limitations on self‑referral provided under this chapter, and to provide minimal disruption to the appropriate delivery of health services, the department of health is exclusively authorized to implement this chapter through adopted rules.

The legislature recognizes that changes in delivery of health services has resulted in various methods by which health care providers practice their professions and by which health care facilities and third-party payers operate their businesses. It is not the intent of the legislature to limit appropriate delivery of care.

The legislature hereby declares that the purpose of this chapter, and the rules adopted under this chapter, is to complement the body of federal law pertaining to health care provider investment or other compensation interests and referrals. It is the intent of the legislature that, in construing this chapter and the rules adopted under this chapter, the courts be guided by final decisions of the federal courts interpreting the various federal statutes dealing with the same or similar matters.

NEW SECTION. Sec. 2. DEFINITIONS. (1) "Department" means the department of health.

(2) "Facility" or "health care facility" means any facility licensed or certified by the state to provide health services to patients or clients under chapters 18.46, 18.51, 70.41, 70.42, 70.127, 70.175, and 71.12 RCW.

(3) "Financial gain" means any remuneration that is a rebate, refund, commission, unearned discount, profit, kickback, bribe, or transference or splitting a fee in connection with the referral of patients or clients for health services or in connection with the provision of goods to patients or clients, that the provider, facility, or third-party payer prescribed, required, ordered, or recommended. "Financial gain" includes remuneration received or made from the referral or failure to refer resulting in the underutilization of health services or goods to a patient or client. "Financial gain" does not include remuneration for professional services rendered by the provider or the actual cost, including reasonable overhead costs, to the provider for providing the health service or goods to the patient or client.

(4) "Overutilization" means providing or referring for another person to provide health services or goods that are inappropriate, ineffective, or medically unnecessary for the patient or client.

(5) "Person" means natural persons, corporations, trusts, unincorporated associations, and partnerships. "Person" does not include the state, counties, municipalities, or any of their subdivisions, except those governmental entities licensed, certified, or regulated as health care providers, facilities, or third-party payers.

(6) "Provider" or "health care provider" means:

(a) A person regulated under Title 18 RCW or chapter 70.127 RCW, to practice health or health-related services or otherwise practicing or providing health services in this state consistent with state law; or

(b) An employee or agent of a person described in (a) of this subsection, acting in the course and scope of his or her employment.

(7) "Third-party payer" means disability insurers regulated under chapter 48.20 or 48.21 RCW, health care service contractor as defined in RCW 48.44.010, health maintenance organizations as defined in RCW 48.46.020, entities certified in accordance with RCW 48.43.020 through 48.43.120, certified health plans as defined in RCW 43.72.010, registered employer health plans as defined in RCW 43.72.010, self-insured state health plans created under RCW 41.05.140, and self-insured local government health programs regulated under chapter 48.62 RCW.

(8) "Underutilization" means failing to provide access or referral to health services or goods that are appropriate, effective, and medically necessary for the patient or client.

NEW SECTION. Sec. 3. REGULATION OF INAPPROPRIATE FINANCIAL GAIN. (1) The department is authorized to adopt rules that prohibit, limit, or condition the payment or acceptance of inappropriate financial gain in connection with:

(a) The referral of patients or clients; or

(b) The furnishing of health care goods to patients or clients, that the provider, facility, or third-party payer prescribed, required, ordered, or recommended;

under such circumstances as the department deems appropriate.

(2) The means used by the department to regulate referrals involving inappropriate financial gain may include, but are not limited to:

(a) Prohibition of investment, compensation, or referral;

(b) Allowing investment, compensation, or referral only upon compliance with specific conditions; and

The department should employ the least‑restrictive regulatory alternative that will nonetheless protect the interests of the patients, payers, and the public.

(3) In adopting the rules described in subsection (1) of this section, the department shall consider:

(a) The need to protect patients from any adverse health impacts that may occur because providers, facilities, or third-party payers cause the overutilization or underutilization of health services in the pursuit of inappropriate financial gain;

(b) The avoidance of unnecessary health expenditures that may occur because providers, facilities, or third-party payers cause the overutilization or underutilization of health services in the pursuit of inappropriate financial gain;

(d) The extent to which formation of integrated delivery systems may be promoted by financial relationships among the participants in certified health plans, networks, or other organizations;

(e) The need to encourage competition and innovation in the health services delivery system;

(f) The need to promote access to health services in all regions of the state;

(g) The particular circumstances of the local market for health care services in rural or underserved areas;

(h) The incentives created by the payment mechanism, including but not limited to capitation and fee for service, to which providers, facilities, certified health plans, or other organizations are subject;

(i) The character of the goods or services involved, including whether such goods or services are included within the uniform benefits package; and

(j) The value of consistency with the body of federal law pertaining to health care provider investment or other compensation interest and referrals.

NEW SECTION. Sec. 4. ADVISORY OPINIONS. The department shall have the authority to issue advisory opinions on whether specific circumstances or arrangements will result in a referral involving inappropriate financial gain. Advisory opinions may be limited in scope or effect as the department may deem appropriate, are not binding on the department or other persons, and are not subject to the administrative procedure act, chapter 34.05 RCW.

NEW SECTION. Sec. 5. DISCIPLINARY ACTION AGAINST LICENSED PROVIDERS‑-AUTHORIZED. Disciplinary action under chapter 18.130 RCW may be taken against the license of any provider violating this chapter or the rules adopted under this chapter.

NEW SECTION. Sec. 6. ACTION AGAINST FACILITY LICENSE‑-ACTION AGAINST THIRD-PARTY PAYER CERTIFICATE. If a health care facility licensed by the state of Washington or a third-party payer regulated by the state of Washington violates this chapter or the rules adopted by the department, the license of the health care facility and the certificate of authority or its equivalent of the third-party payer shall be subject to disciplinary action, including assessment of a fine, by the state agency authorized to take action against health facility licenses and third-party payer certificates of authority or its equivalent.

NEW SECTION. Sec. 7. APPLICATION OF CONSUMER PROTECTION ACT. Any violation of this chapter or the rules adopted by the department to implement this chapter shall constitute an unfair or deceptive trade practice affecting the public interest under chapter 19.86 RCW. No private right of action may be maintained for a violation of this chapter or the rules. Any of the actions and investigative authority contained in chapter 19.86 RCW are available for investigation, enforcement, and to remedy a violation of this chapter, except neither RCW 19.86.095 nor 19.86.130 shall apply to actions alleging violations of this chapter, nor shall the private right of action in RCW 19.86.090 apply.

NEW SECTION. Sec. 8. VIOLATIONS‑-ATTORNEY GENERAL‑-CEASE AND DESIST ORDER‑-TEMPORARY ORDER‑-PENALTY‑-RECOVERY IN SUPERIOR COURT. (1) If it appears to the attorney general that a person has engaged in or is about to engage in an act or practice constituting a violation of a provision of this chapter or a rule adopted or order issued under this chapter, the attorney general may, in the attorney general's discretion, issue an order directing the person to cease and desist from continuing the act or practice. Reasonable notice of an opportunity for a hearing shall be given. The attorney general may issue a temporary order pending the hearing, which shall remain in effect until ten days after the hearing is held and which shall become final if the person to whom the notice is addressed does not request a hearing within fifteen days after the receipt of the notice.

(2) The attorney general may assess against any person who violates this chapter, or any rule adopted under this chapter, a civil penalty of not more than two thousand dollars for each violation of this chapter, provided that the total civil penalty assessed shall not exceed twice the amount of financial gain realized by the violator as a result of violation of this chapter. Such person shall be afforded the opportunity for a hearing, upon request made to the attorney general within thirty days after the date of issuance of the notice of assessment. If any person fails to pay an assessment after it has become a final and unappealable order, or after the court has entered final judgment in favor of the state, the attorney general may recover the amount assessed by action in the appropriate superior court. In such action, the validity and appropriateness of the final order imposing the penalty shall not be subject to review.

(3) The administrative procedure act, chapter 34.05 RCW, shall govern the rights, remedies, and procedures with respect to subsections (1) and (2) of this section.

NEW SECTION. Sec. 9. SHORT TITLE. This act shall be known and cited as the "health services conflict of interest act."

Sec. 10. RCW 18.35.110 and 1993 c 313 s 4 are each amended to read as follows:

In addition to causes specified under RCW 18.130.170 and 18.130.180, any person licensed under this chapter may be subject to disciplinary action by the board for any of the following causes:

(1) For unethical conduct in dealing in hearing aids. Unethical conduct shall include, but not be limited to:

(a) Using or causing or promoting the use of, in any advertising matter, promotional literature, testimonial, guarantee, warranty, label, brand, insignia, or any other representation, however disseminated or published, which is false, misleading or deceptive;

(b) Failing or refusing to honor or to perform as represented any representation, promise, agreement, or warranty in connection with the promotion, sale, dispensing, or fitting of the hearing aid;

(c) Advertising a particular model, type, or kind of hearing aid for sale which purchasers or prospective purchasers responding to the advertisement cannot purchase or are dissuaded from purchasing and where it is established that the purpose of the advertisement is to obtain prospects for the sale of a different model, type, or kind than that advertised;

(d) Falsifying hearing test or evaluation results;

(e)(i) Whenever any of the following conditions are found or should have been found to exist either from observations by the licensee or on the basis of information furnished by the prospective hearing aid user prior to fitting and dispensing a hearing aid to any such prospective hearing aid user, failing to advise that prospective hearing aid user in writing that the user should first consult a licensed physician specializing in diseases of the ear or if no such licensed physician is available in the community then to any duly licensed physician:

(A) Visible congenital or traumatic deformity of the ear, including perforation of the eardrum;

(B) History of, or active drainage from the ear within the previous ninety days;

(D) Acute or chronic dizziness;

(E) Any unilateral hearing loss;

(F) Significant air-bone gap when generally acceptable standards have been established as defined by the food and drug administration;

(G) Visible evidence of significant cerumen accumulation or a foreign body in the ear canal;

(H) Pain or discomfort in the ear; or

(I) Any other conditions that the board may by rule establish. It is a violation of this subsection for any licensee or that licensee's employees and putative agents upon making such required referral for medical opinion to in any manner whatsoever disparage or discourage a prospective hearing aid user from seeking such medical opinion prior to the fitting and dispensing of a hearing aid. No such referral for medical opinion need be made by any licensee in the instance of replacement only of a hearing aid which has been lost or damaged beyond repair within six months of the date of purchase. The licensee or the licensee's employees or putative agents shall obtain a signed statement from the hearing aid user documenting the waiver of medical clearance and the waiver shall inform the prospective user that signing the waiver is not in the user's best health interest: PROVIDED, That the licensee shall maintain a copy of either the physician's statement showing that the prospective hearing aid user has had a medical evaluation or the statement waiving medical evaluation, for a period of three years after the purchaser's receipt of a hearing aid. Nothing in this section required to be performed by a licensee shall mean that the licensee is engaged in the diagnosis of illness or the practice of medicine or any other activity prohibited under the laws of this state;

(ii) Fitting and dispensing a hearing aid to any person under eighteen years of age who has not been examined and cleared for hearing aid use within the previous six months by a physician specializing in otolaryngology except in the case of replacement instruments or except in the case of the parents or guardian of such person refusing, for good cause, to seek medical opinion: PROVIDED, That should the parents or guardian of such person refuse, for good cause, to seek medical opinion, the licensee shall obtain from such parents or guardian a certificate to that effect in a form as prescribed by the department;

(iii) Fitting and dispensing a hearing aid to any person under eighteen years of age who has not been examined by an audiologist who holds at least a master's degree in audiology for recommendations during the previous six months, without first advising such person or his or her parents or guardian in writing that he or she should first consult an audiologist who holds at least a master's degree in audiology, except in cases of hearing aids replaced within six months of their purchase;

(f) Representing that the services or advice of a person licensed to practice medicine and surgery under chapter 18.71 RCW or osteopathy and surgery under chapter 18.57 RCW or of a clinical audiologist will be used or made available in the selection, fitting, adjustment, maintenance, or repair of hearing aids when that is not true, or using the word "doctor," "clinic," or other like words, abbreviations, or symbols which tend to connote a medical or osteopathic profession when such use is not accurate;

(g) Permitting another to use his or her license;

(h) Stating or implying that the use of any hearing aid will restore normal hearing, preserve hearing, prevent or retard progression of a hearing impairment, or any other false, misleading, or medically or audiologically unsupportable claim regarding the efficiency of a hearing aid;

(i) Representing or implying that a hearing aid is or will be "custom-made," "made to order," "prescription made," or in any other sense specially fabricated for an individual when that is not the case; or

(j) Directly or indirectly offering, giving, permitting, or causing to be given, money or anything of value to any person who advised another in a professional capacity as an inducement to influence that person, or to have that person influence others to purchase or contract to purchase any product sold or offered for sale by the licensee, or to influence any person to refrain from dealing in the products of competitors.

(2) Engaging in any unfair or deceptive practice or unfair method of competition in trade within the meaning of RCW 19.86.020.

(3) Aiding or abetting any violation of the rebating laws as stated in ((~~chapter 19.68 RCW~~)) sections 1 through 9 of this act.

Sec. 11. RCW 18.46.050 and 1991 c 3 s 101 are each amended to read as follows:

The department may assess civil monetary penalties not exceeding five thousand dollars per violation or deny, suspend, or revoke a license in any case in which it finds that there has been failure or refusal to comply with the requirements established under this chapter or the rules adopted under it or sections 1 through 9 of this act and the rules adopted under it.

RCW 43.70.095 governs notice of assessment of civil monetary penalties. RCW 43.70.115 governs notice of a license denial, revocation, suspension, or modification and provides the right to an adjudicative proceeding.

Funds received from the civil monetary penalties shall be paid into the health facilities account.

Sec. 12. RCW 18.51.054 and 1989 c 372 s 7 are each amended to read as follows:

The department may deny a license to any applicant if the department finds that the applicant or any partner, officer, director, managerial employee, or owner of five percent or more of the applicant:

(1) Operated a nursing home without a license or under a revoked or suspended license; or

(2) Knowingly or with reason to know made a false statement of a material fact (a) in an application for license or any data attached thereto, or (b) in any matter under investigation by the department; or

(3) Refused to allow representatives or agents of the department to inspect (a) all books, records, and files required to be maintained or (b) any portion of the premises of the nursing home; or

(4) Willfully prevented, interfered with, or attempted to impede in any way (a) the work of any authorized representative of the department or (b) the lawful enforcement of any provision of this chapter or chapter 74.42 RCW; or

(5) Has a history of significant noncompliance with federal or state regulations in providing nursing home care. In deciding whether to deny a license under this section, the factors the department considers shall include the gravity and frequency of the noncompliance; or

(6) Violated sections 1 through 9 of this act or the rules adopted under it.

Sec. 13. RCW 18.51.060 and 1989 c 372 s 8 are each amended to read as follows:

(1) In any case in which the department finds that a licensee, or any partner, officer, director, owner of five percent or more of the assets of the nursing home, or managing employee failed or refused to comply with the requirements of this chapter, sections 1 through 9 of this act, or of chapter 74.42 RCW, or the standards, rules and regulations established under them or, in the case of a Medicaid contractor, failed or refused to comply with the Medicaid requirements of Title XIX of the social security act, as amended, and regulations promulgated thereunder, the department may take any or all of the following actions:

(a) Suspend, revoke, or refuse to renew a license;

(b) Order stop placement;

(d) Deny payment to a nursing home for any Medicaid resident admitted after notice to deny payment. Residents who are Medicaid recipients shall not be responsible for payment when the department takes action under this subsection;

(e) Appoint temporary management as provided in subsection (7) of this section.

(2) The department may suspend, revoke, or refuse to renew a license, assess monetary penalties of a civil nature, or both, in any case in which it finds that the licensee, or any partner, officer, director, owner of five percent or more of the assets of the nursing home, or managing employee:

(a) Operated a nursing home without a license or under a revoked or suspended license; or

(b) Knowingly or with reason to know made a false statement of a material fact in his application for license or any data attached thereto, or in any matter under investigation by the department; or

(c) Refused to allow representatives or agents of the department to inspect all books, records, and files required to be maintained or any portion of the premises of the nursing home; or

(d) Willfully prevented, interfered with, or attempted to impede in any way the work of any duly authorized representative of the department and the lawful enforcement of any provision of this chapter or of chapter 74.42 RCW; or

(e) Willfully prevented or interfered with any representative of the department in the preservation of evidence of any violation of any of the provisions of this chapter or of chapter 74.42 RCW or the standards, rules, and regulations adopted under them; or

(f) Failed to report patient abuse or neglect in violation of chapter 70.124 RCW; or

(g) Fails to pay any civil monetary penalty assessed by the department pursuant to this chapter within ten days after such assessment becomes final.

(3) The department shall deny payment to a nursing home having a Medicaid contract with respect to any Medicaid-eligible individual admitted to the nursing home when:

(a) The department finds the nursing home not in compliance with the requirements of Title XIX of the social security act, as amended, and regulations promulgated thereunder, and the facility has not complied with such requirements within three months; in such case, the department shall deny payment until correction has been achieved; or

(b) The department finds on three consecutive standard surveys that the nursing home provided substandard quality of care; in such case, the department shall deny payment for new admissions until the facility has demonstrated to the satisfaction of the department that it is in compliance with Medicaid requirements and that it will remain in compliance with such requirements.

(4)(a) Civil penalties collected under this section or under chapter 74.42 RCW shall be deposited into a special fund administered by the department to be applied to the protection of the health or property of residents of nursing homes found to be deficient, including payment for the costs of relocation of residents to other facilities, maintenance of operation of a facility pending correction of deficiencies or closure, and reimbursement of residents for personal funds lost.

(b) Civil monetary penalties, if imposed, may be assessed and collected, with interest, for each day a nursing home is or was out of compliance. Civil monetary penalties shall not exceed three thousand dollars per violation. Each day upon which the same or a substantially similar action occurs is a separate violation subject to the assessment of a separate penalty.

(c) Any civil penalty assessed under this section or chapter 74.46 RCW shall be a nonreimbursable item under chapter 74.46 RCW.

(5)(a) The department shall order stop placement on a nursing home, effective upon oral or written notice, when the department determines:

(i) The nursing home no longer substantially meets the requirements of chapter 18.51 or 74.42 RCW, or in the case of medicaid contractors, the requirements of Title XIX of the social security act, as amended, and any regulations promulgated under such statutes; and

(ii) The deficiency or deficiencies in the nursing home:

(A) Jeopardize the health and safety of the residents, or

(B) Seriously limit the nursing home's capacity to provide adequate care.

(b) When the department has ordered a stop placement, the department may approve a readmission to the nursing home from a hospital when the department determines the readmission would be in the best interest of the individual seeking readmission.

(i) The provider states in writing that the deficiencies necessitating the stop placement action have been corrected; and

(ii) The department staff confirms in a timely fashion not to exceed fifteen working days that:

(A) The deficiencies necessitating stop placement action have been corrected, and

(B) The provider exhibits the capacity to maintain adequate care and service.

(d) A nursing home provider shall have the right to an informal review to present written evidence to refute the deficiencies cited as the basis for the stop placement. A request for an informal review must be made in writing within ten days of the effective date of the stop placement.

(e) A stop placement shall not be delayed or suspended because the nursing home requests a hearing pursuant to chapter 34.05 RCW or an informal review. The stop placement shall remain in effect until:

(i) The department terminates the stop placement; or

(ii) The stop placement is terminated by a final agency order, after a hearing, pursuant to chapter 34.05 RCW.

(6) If the department determines that an emergency exists as a result of a nursing home's failure or refusal to comply with requirements of this chapter or, in the case of a Medicaid contractor, its failure or refusal to comply with Medicaid requirements of Title XIX of the social security act, as amended, and rules adopted thereunder, the department may suspend the nursing home's license and order the immediate closure of the nursing home, the immediate transfer of residents, or both.

(7) If the department determines that the health or safety of residents is immediately jeopardized as a result of a nursing home's failure or refusal to comply with requirements of this chapter or, in the case of a medicaid contractor, its failure or refusal to comply with medicaid requirements of Title XIX of the social security act, as amended, and rules adopted thereunder, the department may appoint temporary management to:

(a) Oversee the operation of the facility; and

(b) Ensure the health and safety of the facilities residents while:

(i) Orderly closure of the facility occurs; or

(ii) The deficiencies necessitating temporary management are corrected.

(8) The department shall by rule specify criteria as to when and how the sanctions specified in this section shall be applied. Such criteria shall provide for the imposition of incrementally more severe penalties for deficiencies that are repeated, uncorrected, pervasive, or present a threat to the health, safety, or welfare of the residents.

Sec. 14. RCW 18.100.140 and 1994 sp.s. c 9 s 717 are each amended to read as follows:

Nothing in this chapter shall authorize a director, officer, shareholder, agent or employee of a corporation organized under this chapter, or a corporation itself organized under this chapter, to do or perform any act which would be illegal, unethical or unauthorized conduct under the provisions of the following acts: (1) Physicians and surgeons, chapter 18.71 RCW; (2) anti-rebating act, ((~~chapter 19.68 RCW~~)) sections 1 through 9 of this act; (3) state bar act, chapter 2.48 RCW; (4) professional accounting act, chapter 18.04 RCW; (5) professional architects act, chapter 18.08 RCW; (6) professional auctioneers act, chapter 18.11 RCW; (7) cosmetologists, barbers, and manicurists, chapter 18.16 RCW; (8) boarding homes act, chapter 18.20 RCW; (9) podiatric medicine and surgery, chapter 18.22 RCW; (10) chiropractic act, chapter 18.25 RCW; (11) registration of contractors, chapter 18.27 RCW; (12) debt adjusting act, chapter 18.28 RCW; (13) dental hygienist act, chapter 18.29 RCW; (14) dentistry, chapter 18.32 RCW; (15) dispensing opticians, chapter 18.34 RCW; (16) naturopathic physicians, chapter 18.36A RCW; (17) embalmers and funeral directors, chapter 18.39 RCW; (18) engineers and land surveyors, chapter 18.43 RCW; (19) escrow agents registration act, chapter 18.44 RCW; (20) maternity homes, chapter 18.46 RCW; (21) midwifery, chapter 18.50 RCW; (22) nursing homes, chapter 18.51 RCW; (23) optometry, chapter 18.53 RCW; (24) osteopathic physicians and surgeons, chapter 18.57 RCW; (25) pharmacists, chapter 18.64 RCW; (26) physical therapy, chapter 18.74 RCW; (27) registered nurses, advanced registered nurse practitioners, and practical nurses, chapter 18.79 RCW; (28) psychologists, chapter 18.83 RCW; (29) real estate brokers and salesmen, chapter 18.85 RCW; (30) veterinarians, chapter 18.92 RCW.

Sec. 15. 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;

(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~~)) sections 1 through 9 of this act;

(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.

Sec. 16. RCW 48.05.140 and 1973 1st ex.s. c 152 s 1 are each amended to read as follows:

The commissioner may refuse, suspend, or revoke an insurer's certificate of authority, in addition to other grounds therefor in this code, if the insurer:

(1) Fails to comply with any provision of this code other than those for violation of which refusal, suspension, or revocation is mandatory, or fails to comply with any proper order or regulation of the commissioner.

(2) Is found by the commissioner to be in such condition that its further transaction of insurance in this state would be hazardous to policyholders and the people in this state.

(3) Refuses to remove or discharge a director or officer who has been convicted of any crime involving fraud, dishonesty, or like moral turpitude.

(4) Usually compels claimants under policies either to accept less than the amount due them or to bring suit against it to secure full payment of the amount due.

(5) Is affiliated with and under the same general management, or interlocking directorate, or ownership as another insurer which transacts insurance in this state without having a certificate of authority therefor, except as is permitted by this code.

(6) Refuses to be examined, or if its directors, officers, employees or representatives refuse to submit to examination or to produce its accounts, records, and files for examination by the commissioner when required, or refuse to perform any legal obligation relative to the examination.

(7) Fails to pay any final judgment rendered against it in this state upon any policy, bond, recognizance, or undertaking issued or guaranteed by it, within thirty days after the judgment became final or within thirty days after time for taking an appeal has expired, or within thirty days after dismissal of an appeal before final determination, whichever date is the later.

(8) Is found by the commissioner, after investigation or upon receipt of reliable information, to be managed by persons, whether by its directors, officers, or by any other means, who are incompetent or untrustworthy or so lacking in insurance company managerial experience as to make a proposed operation hazardous to the insurance-buying public; or that there is good reason to believe it is affiliated directly or indirectly through ownership, control, reinsurance or other insurance or business relations, with any person or persons whose business operations are or have been marked, to the detriment of policyholders or stockholders or investors or creditors or of the public, by bad faith or by manipulation of assets, or of accounts, or of reinsurance.

(9) Does business through agents or brokers in this state or in any other state who are not properly licensed under applicable laws and duly enacted regulations adopted pursuant thereto.

(10) Violates sections 1 through 9 of this act.

Sec. 17. RCW 48.62.091 and 1991 sp.s. c 30 s 9 are each amended to read as follows:

(1) Within one hundred twenty days of receipt of a plan of management and operation, the state risk manager shall either approve or disapprove the formation of the self-insurance program after reviewing the plan to determine whether the proposed program complies with this chapter and all rules adopted in accordance with this chapter.

(2) If the state risk manager denies a request for approval, the state risk manager shall specify in detail the reasons for denial and the manner in which the program fails to meet the requirements of this chapter or any rules adopted in accordance with this chapter.

(3)(a) Whenever the state risk manager determines that a joint self-insurance program covering property or liability risks or an individual or joint self-insured health and welfare benefits program is in violation of this chapter or is operating in an unsafe financial condition, the state risk manager may issue and serve upon the program an order to cease and desist from the violation or practice.

((~~(a)~~)) (b) Whenever the state risk manager determines that a self-insurance program is in violation of sections 1 through 9 of this act, the state risk manager may issue and serve upon the program an order to cease and desist from the violation or practice or may levy a fine or both.

(i) The state risk manager shall deliver the order to the appropriate entity or entities directly or mail it to the appropriate entity or entities by registered mail with return receipt requested.

((~~(b)~~)) (ii) If the program violates the order or has not taken steps to comply with the order after the expiration of twenty days after the cease and desist order has been received by the program, the program is deemed to be operating in violation of this chapter, and the state risk manager shall notify the state auditor and the attorney general of the violation.

((~~(c)~~)) (iii) After hearing or with the consent of a program governed by this chapter and in addition to or in lieu of a continuation of the cease and desist order, the risk manager may levy a fine upon the program in an amount not less than three hundred dollars and not more than ten thousand dollars. The order levying such fine shall specify the period within which the fine shall be fully paid. The period within which such fines shall be paid shall not be less than fifteen nor more than thirty days from the date of such order. Upon failure to pay any such fine when due the risk manager shall request the attorney general to bring a civil action on the risk manager's behalf to collect the fine. The risk manager shall pay any fine so collected to the state treasurer for the account of the general fund.

(4) Each self-insurance program approved by the state risk manager shall annually file a report with the state risk manager and state auditor providing:

(a) Details of any changes in the articles of incorporation, bylaws, or interlocal agreement;

(b) Copies of all the insurance coverage documents;

(c) A description of the program structure, including participants' retention, program retention, and excess insurance limits and attachment point;

(d) An actuarial analysis, if required;

(e) A list of contractors and service providers;

(f) The financial and loss experience of the program; and

(g) Such other information as required by rule of the state risk manager.

(5) No self-insurance program requiring the state risk manager's approval may engage in an act or practice that in any respect significantly differs from the management and operation plan that formed the basis for the state risk manager's approval of the program unless the program first notifies the state risk manager in writing and obtains the state risk manager's approval. The state risk manager shall approve or disapprove the proposed change within sixty days of receipt of the notice. If the state risk manager denies a requested change, the risk manager shall specify in detail the reasons for denial and the manner in which the program would fail to meet the requirements of this chapter or any rules adopted in accordance with this chapter.

Sec. 18. RCW 51.48.280 and 1986 c 200 s 6 are each amended to read as follows:

(1) Any person, firm, corporation, partnership, association, agency, institution, or other legal entity, that solicits or receives any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind:

(a) In return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under this chapter; or

(b) In return for purchasing, leasing, ordering, or arranging for or recommending purchasing, leasing, or ordering any goods, facility, service, or item for which payment may be made in whole or in part under this chapter;

shall be guilty of a class C felony: PROVIDED, That the fine, if imposed, shall not be in an amount more than twenty-five thousand dollars, except as authorized by RCW 9A.20.030.

(2) Any person, firm, corporation, partnership, association, agency, institution, or other legal entity, that offers or pays any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind to any person to induce such person:

(a) To refer an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made, in whole or in part, under this chapter; or

(b) To purchase, lease, order, or arrange for or recommend purchasing, leasing, or ordering any goods, facility, service, or item for which payment may be made in whole or in part under this chapter;

shall be guilty of a class C felony: PROVIDED, That the fine, if imposed, shall not be in an amount more than twenty-five thousand dollars, except as authorized by RCW 9A.20.030.

(3) Subsections (1) and (2) of this section shall not apply to:

(a) A discount or other reduction in price obtained by a provider of services or other entity under this chapter if the reduction in price is properly disclosed and appropriately reflected in the costs claimed or charges made by the provider or entity under this chapter; ((~~and~~))

(b) Any amount paid by an employer to an employee (who has a bona fide employment relationship with such employer) for employment in the provision of covered items or services; and

(4) Subsections (1) and (2) of this section, if applicable to the conduct involved, ((~~shall supersede the criminal provisions of chapter 19.68 RCW, but~~)) shall not preclude ((~~administrative~~)) proceedings authorized by ((~~chapter 19.68 RCW~~)) sections 1 through 9 of this act.

Sec. 19. RCW 70.41.130 and 1991 c 3 s 335 are each amended to read as follows:

The department is authorized to assess civil monetary penalties not exceeding five thousand dollars per violation or deny, suspend, revoke, or modify a license or provisional license in any case in which it finds that there has been a failure or refusal to comply with the requirements of this chapter or the standards or rules adopted under this chapter or sections 1 through 9 of this act or rules adopted under sections 1 through 9 of this act. RCW 43.70.095 governs notice of assessment of civil monetary penalties. Funds received from the civil monetary penalties shall be paid into the health facilities account. RCW 43.70.115 governs notice of a license denial, revocation, suspension, or modification and provides the right to an adjudicative proceeding.

Sec. 20. RCW 70.42.120 and 1989 c 386 s 13 are each amended to read as follows:

Under this chapter, and chapter 34.05 RCW, the department may deny a license to any applicant who:

(1) Refuses to comply with the requirements of this chapter or the standards or rules adopted under this chapter;

(2) Was the holder of a license under this chapter which was revoked for cause and never reissued by the department;

(3) Has knowingly or with reason to know made a false statement of a material fact in the application for a license or in any data attached thereto or in any record required by the department;

(4) Refuses to allow representatives of the department to examine any book, record, or file required by this chapter to be maintained;

(5) Willfully prevented, interfered with, or attempted to impede in any way the work of a representative of the department; ((or))

(6) Misrepresented, or was fraudulent in, any aspect of the applicant's business; or

(7) Violated sections 1 through 9 of this act.

Sec. 21. RCW 70.42.130 and 1989 c 386 s 14 are each amended to read as follows:

Under this chapter, and chapter 34.05 RCW, the department may place conditions on a license which limit or cancel a test site's authority to conduct any of the tests or groups of tests of any licensee who:

(1) Fails or refuses to comply with the requirements of this chapter or the rules adopted under this chapter;

(2) Has knowingly or with reason to know made a false statement of a material fact in the application for a license or in any data attached thereto or in any record required by the department;

(3) Refuses to allow representatives of the department to examine any book, record, or file required by this chapter to be maintained;

(4) Willfully prevented, interfered with, or attempted to impede in any way the work of a representative of the department;

(5) Willfully prevented or interfered with preservation of evidence of a known violation of this chapter or the rules adopted under this chapter; ((or))

(6) Misrepresented, or was fraudulent in, any aspect of the licensee's business; or

(7) Violates sections 1 through 9 of this act.

Sec. 22. RCW 70.42.140 and 1989 c 386 s 15 are each amended to read as follows:

Under this chapter, and chapter 34.05 RCW, the department may suspend the license of any licensee who:

(1) Fails or refuses to comply with the requirements of this chapter or the rules adopted under this chapter;

(2) Has knowingly or with reason to know made a false statement of a material fact in the application for a license or in any data attached thereto or in any record required by the department;

(3) Refuses to allow representatives of the department to examine any book, record, or file required by this chapter to be maintained;

(4) Willfully prevented, interfered with, or attempted to impede in any way the work of a representative of the department;

(5) Willfully prevented or interfered with preservation of evidence of a known violation of this chapter or the rules adopted under this chapter;

(6) Misrepresented, or was fraudulent in, any aspect of the licensee's business;

(7) Used false or fraudulent advertising; or

(8) ((~~Failed to pay any civil monetary penalty assessed by the department under this chapter within twenty-eight days after the assessment becomes final~~)) Violated sections 1 through 9 of this act.

Each day of a continuing violation is a separate violation.

Sec. 23. RCW 70.42.150 and 1989 c 386 s 16 are each amended to read as follows:

Under this chapter, sections 1 through 9 of this act, and chapter 34.05 RCW, the department may revoke the license of any licensee who:

(1) Fails or refuses to comply with the requirements of this chapter or the rules adopted under this chapter or sections 1 through 9 of this act;

(2) Has knowingly or with reason to know made a false statement of a material fact in the application for a license or in any data attached thereto or in any record required by the department;

(3) Refuses to allow representatives of the department to examine any book, record, or file required by this chapter or sections 1 through 9 of this act to be maintained;

(4) Willfully prevented, interfered with, or attempted to impede in any way the work of a representative of the department;

(5) Willfully prevented or interfered with preservation of evidence of a known violation of this chapter, sections 1 through 9 of this act, or the rules adopted under this chapter;

(6) Misrepresented, or was fraudulent in, any aspect of the licensee's business;

(7) Used false or fraudulent advertising; or

(8) Failed to pay any civil monetary penalty assessed by the department pursuant to this chapter or sections 1 through 9 of this act within twenty-eight days after the assessment becomes final.

The department may summarily revoke a license when it finds continued licensure of a test site immediately jeopardizes the public health, safety, or welfare.

Sec. 24. RCW 70.42.160 and 1989 c 386 s 17 are each amended to read as follows:

Under this chapter, sections 1 through 9 of this act, and chapter 34.05 RCW, the department may assess monetary penalties of up to ten thousand dollars per violation in addition to or in lieu of conditioning, suspending, or revoking a license. A violation occurs when a licensee:

(1) Fails or refuses to comply with the requirements of this chapter or the standards or rules adopted under this chapter or sections 1 through 9 of this act;

(2) Has knowingly or with reason to know made a false statement of a material fact in the application for a license or in any data attached thereto or in any record required by the department;

(3) Refuses to allow representatives of the department to examine any book, record, or file required by this chapter or sections 1 through 9 of this act to be maintained;

(4) Willfully prevents, interferes with, or attempts to impede in any way the work of any representative of the department;

(5) Willfully prevents or interferes with preservation of evidence of any known violation of this chapter, sections 1 through 9 of this act, or the rules adopted under this chapter;

(6) Misrepresents or was fraudulent in any aspect of the applicant's business; or

(7) Uses advertising which is false or fraudulent.

Each day of a continuing violation is a separate violation.

Sec. 25. RCW 70.127.170 and 1988 c 245 s 18 are each amended to read as follows:

Pursuant to chapter 34.05 RCW, the department may deny, suspend, or revoke a license under this chapter or, in lieu thereof or in addition thereto, assess monetary penalties of a civil nature not to exceed ((~~one~~)) five thousand dollars per violation in any case in which it finds that the licensee, or any applicant, officer, director, partner, managing employee, or owner of ten percent or more of the applicant's or licensee's assets:

(1) Failed or refused to comply with the requirements of this chapter or the standards or rules adopted under this chapter;

(2) Was the holder of a license issued pursuant to this chapter that was revoked for cause and never reissued by the department, or that was suspended for cause and the terms of the suspension have not been fulfilled and the licensee has continued to operate;

(3) Has knowingly or with reason to know made a false statement of a material fact in the application for the license or any data attached thereto or in any record required by this chapter or matter under investigation by the department;

(4) Refused to allow representatives of the department to inspect any book, record, or file required by this chapter to be maintained or any portion of the licensee's premises;

(5) Wilfully prevented, interfered with, or attempted to impede in any way the work of any representative of the department and the lawful enforcement of any provision of this chapter;

(6) Wilfully prevented or interfered with any representative of the department in the preservation of evidence of any violation of this chapter or the rules adopted under this chapter;

(7) Failed to pay any civil monetary penalty assessed by the department pursuant to this chapter within ten days after the assessment becomes final;

(8) Used advertising that is false, fraudulent, or misleading;

(9) Has repeated incidents of personnel performing services beyond their authorized scope of practice; ((or))

(10) Misrepresented or was fraudulent in any aspect of the conduct of the licensee's business; or

(11) Violated sections 1 through 9 of this act.

Funds received from the civil monetary penalties shall be paid into the health facilities account.

Sec. 26. RCW 70.175.100 and 1989 1st ex.s. c 9 s 710 are each amended to read as follows:

(1) The department shall establish and adopt such standards and regulations pertaining to the construction, maintenance, and operation of a rural health care facility and the scope of health care services, and rescind, amend, or modify such regulations from time to time as necessary in the public interest. In developing the regulations, the department shall consult with representatives of rural hospitals, community mental health centers, public health departments, community and migrant health clinics, and other providers of health care in rural communities. The department shall also consult with third-party payers, consumers, local officials, and others to insure broad participation in defining regulatory standards and requirements that are appropriate for a rural health care facility.

(2) When developing the rural health care facility licensure rules, the department shall consider the report of the Washington rural health care commission established under chapter 207, Laws of 1988. Nothing in this chapter requires the department to follow any specific recommendation contained in that report except as it may also be included in this chapter. The rules shall authorize disciplinary action against the license of the rural health care facility for violations of sections 1 through 9 of this act. Disciplinary action shall include, but is not limited to, assessment of civil monetary penalties not to exceed five thousand dollars per violation.

(3) Upon developing rules, the department shall enter into negotiations with appropriate federal officials to seek medicare approval of the facility and financial participation of medicare and other federal programs in developing and operating the rural health care facility.

(4) The department shall report periodically to the appropriate committees of the legislature on the progress of rule development and negotiations with the federal government.

(5) The department may invoke disciplinary actions, including levying of fines, against the license of a rural health care facility for violations of sections 1 through 9 of this act.

Sec. 27. RCW 71.12.590 and 1983 c 3 s 180 are each amended to read as follows:

Failure to comply with any of the provisions of RCW 71.12.550 through 71.12.570 or sections 1 through 9 of this act shall constitute grounds for assessment of civil monetary penalties not to exceed five thousand dollars per violation or denial, suspension, revocation, or modification of a license: PROVIDED, HOWEVER, That nothing in this chapter or the rules and regulations adopted pursuant thereto shall be construed as authorizing the supervision, regulation, or control of the remedial care or treatment of residents or patients in any establishment, as defined in this chapter conducted in accordance with the practice and principles of the body known as Church of Christ, Scientist.

Funds received from the civil monetary penalties shall be paid into the health facilities account.

NEW SECTION. Sec. 28. A new section is added to chapter 43.70 RCW to read as follows:

(1) There is created in the state treasury an account to be known as the health facilities account. All civil monetary penalties assessed and collected by the department under RCW 18.46.050, 70.41.130, 70.127.170, and 71.12.590 shall be forwarded to the state treasurer who shall credit such moneys to the health facilities account.

(2) Funds in the health facilities account shall be expended to educate facilities, their operators, and employees in the minimum standards necessary to protect the public health, safety, and welfare. Only the secretary of health or the secretary's designee may authorize expenditures from the account. Costs incurred by the department in administering the account shall be paid from the account. Any residue in the account shall be accumulated and shall not revert to the general fund at the end of the biennium.

NEW SECTION. Sec. 29. REPEALER. The following acts or parts of acts are each repealed:

(1) RCW 19.68.010 and 1993 c 492 s 233, 1973 1st ex.s. c 26 s 1, & 1965 ex.s. c 58 s 1;

(2) RCW 19.68.020 and 1965 ex.s. c 58 s 2 & 1949 c 204 s 2;

(3) RCW 19.68.030 and 1965 ex.s. c 58 s 3; and

(4) RCW 19.68.040 and 1949 c 204 s 4.

NEW SECTION. Sec. 30. CODIFICATION. Sections 1 through 9 of this act shall constitute a new chapter in Title 19 RCW.

NEW SECTION. Sec. 31. DELAYED EFFECTIVE DATE. Sections 1, 2, and 4 through 29 of this act shall take effect on January 1, 1996.

NEW SECTION. Sec. 32. IMPLEMENTATION. The department may take such steps as are necessary to ensure that this act is implemented on its effective date. The department shall adopt implementing rules under section 3 of this act, which shall become effective on January 1, 1996.

NEW SECTION. Sec. 33. CAPTIONS. Captions as used in this act constitute no part of the law.

NEW SECTION. Sec. 34. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.