AN ACT Relating to the
uniform disciplinary act; amending RCW 18.130.020, 18.130.060, 18.130.095,
18.130.098, 18.130.170, and 18.130.180; reenacting and amending RCW 18.130.040
and 18.130.050; adding a new section to chapter 18.30 RCW; adding a new section
to chapter 18.130 RCW; adding a new section; and declaring an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF
WASHINGTON:
Sec. 1. RCW 18.130.020 and 1994
sp.s. c 9 s 602 are each amended to read as follows:
Unless the context
clearly requires otherwise, the definitions in this section apply throughout
this chapter.
(1) "Disciplining
authority" means the agency, board, or commission having the authority to
take disciplinary action against a holder of, or applicant for, a professional
or business license upon a finding of a violation of this chapter or a chapter
specified under RCW 18.130.040.
(2)
"Department" means the department of health.
(3)
"Secretary" means the secretary of health or the secretary's
designee.
(4) "Board"
means any of those boards specified in RCW 18.130.040.
(5)
"Commission" means any of the commissions specified in RCW
18.130.040.
(6) "Unlicensed
practice" means:
(a) Practicing a
profession or operating a business identified in RCW 18.130.040 without holding
a valid, unexpired, unrevoked, and unsuspended license to do so; or
(b) Representing to a
consumer, through offerings, advertisements, or use of a professional title or
designation, that the individual is qualified to practice a profession or
operate a business identified in RCW 18.130.040, without holding a valid,
unexpired, unrevoked, and unsuspended license to do so.
(7) "Disciplinary
action" means sanctions identified in RCW 18.130.160.
(8) "Practice
review" means an investigative audit of records related to the complaint,
without prior identification of specific patient or consumer names, or an
assessment of the conditions, circumstances, and methods of the professional's
practice related to the complaint, to determine whether unprofessional
conduct may have been committed.
(9) "Health
agency" means city and county health departments and the department of
health.
(10)
"License," "licensing," and "licensure" shall be
deemed equivalent to the terms "license," "licensing,"
"licensure," "certificate," "certification," and
"registration" as those terms are defined in RCW 18.120.020.
Sec. 2. RCW 18.130.040 and 1995
c 1 s 19 (Initiative Measure No. 607), 1994 sp.s. c 9 s 603, and 1994 c 17 s 19
are each reenacted and amended to read as follows:
(1) This chapter
applies only to the secretary and the boards and commissions having
jurisdiction in relation to the professions licensed under the chapters
specified in this section. This chapter does not apply to any business or
profession not licensed under the chapters specified in this section.
(2)(a) The secretary
has authority under this chapter in relation to the following professions:
(i) Dispensing
opticians licensed under chapter 18.34 RCW;
(ii) Naturopaths
licensed under chapter 18.36A RCW;
(iii) Midwives licensed
under chapter 18.50 RCW;
(iv) Ocularists
licensed under chapter 18.55 RCW;
(v) Massage operators
and businesses licensed under chapter 18.108 RCW;
(vi) Dental hygienists
licensed under chapter 18.29 RCW;
(vii) Acupuncturists
certified under chapter 18.06 RCW;
(viii) Radiologic
technologists certified and x-ray technicians registered under chapter 18.84
RCW;
(ix) Respiratory care
practitioners certified under chapter 18.89 RCW;
(x) Persons registered
or certified under chapter 18.19 RCW;
(xi) Persons registered
as nursing pool operators under chapter 18.52C RCW;
(xii) Nursing
assistants registered or certified under chapter 18.79 RCW;
(xiii) Health care
assistants certified under chapter 18.135 RCW;
(xiv) Dietitians and
nutritionists certified under chapter 18.138 RCW;
(xv) Sex offender
treatment providers certified under chapter 18.155 RCW; ((and))
(xvi) Persons licensed
and certified under chapter 18.73 RCW or RCW 18.71.205; and
(xvii) Denturists licensed
under chapter 18.30 RCW.
(b) The boards and
commissions having authority under this chapter are as follows:
(i) The podiatric
medical board as established in chapter 18.22 RCW;
(ii) The chiropractic
quality assurance commission as established in chapter 18.25 RCW;
(iii) The dental
quality assurance commission as established in chapter 18.32 RCW;
(iv) The board on
fitting and dispensing of hearing aids as established in chapter 18.35 RCW;
(v) The board of
examiners for nursing home administrators as established in chapter 18.52 RCW;
(vi) The optometry
board as established in chapter 18.54 RCW governing licenses issued under
chapter 18.53 RCW;
(vii) The board of
osteopathic medicine and surgery as established in chapter 18.57 RCW governing
licenses issued under chapters 18.57 and 18.57A RCW;
(viii) The board of
pharmacy as established in chapter 18.64 RCW governing licenses issued under
chapters 18.64 and 18.64A RCW;
(ix) The medical
quality assurance commission as established in chapter 18.71 RCW governing
licenses and registrations issued under chapters 18.71 and 18.71A RCW;
(x) The board of
physical therapy as established in chapter 18.74 RCW;
(xi) The board of
occupational therapy practice as established in chapter 18.59 RCW;
(xii) The nursing care
quality assurance commission as established in chapter 18.79 RCW governing
licenses issued under that chapter;
(xiii) The examining
board of psychology and its disciplinary committee as established in chapter
18.83 RCW; and
(xiv) The veterinary
board of governors as established in chapter 18.92 RCW((; and
(xv) Denturists
licensed under chapter 18.30 RCW)).
(3) In addition to the
authority to discipline license holders, the disciplining authority has the
authority to grant or deny licenses based on the conditions and criteria
established in this chapter and the chapters specified in subsection (2) of
this section. This chapter also governs any investigation, hearing, or
proceeding relating to denial of licensure or issuance of a license
conditioned on the applicant's compliance with an order entered pursuant to RCW
18.130.160 by the disciplining authority.
(4) All disciplining
authorities shall adopt procedures to ensure substantially consistent
application of this chapter, the uniform disciplinary act, among the
disciplining authorities listed in subsection (2) of this section.
NEW SECTION. Sec.
3. A new section is added
to chapter 18.30 RCW to read as follows:
The uniform
disciplinary act, chapter 18.130 RCW, shall govern the issuance and denial of
licenses, unauthorized practice, and the discipline of persons licensed under
this chapter. The secretary shall be the disciplinary authority under this
chapter.
Sec. 4. RCW 18.130.050 and 1993
c 367 s 21 and 1993 c 367 s 5 are each reenacted and amended to read as
follows:
The disciplining
authority has the following authority:
(1) To adopt, amend,
and rescind such rules as are deemed necessary to carry out this chapter;
(2) To investigate all
complaints or reports of unprofessional conduct as defined in this chapter and
to hold hearings as provided in this chapter;
(3) To issue subpoenas
and administer oaths in connection with any investigation, hearing, or
proceeding held under this chapter;
(4) To take or cause
depositions to be taken and use other discovery procedures as needed in any
investigation, hearing, or proceeding held under this chapter;
(5) To compel
attendance of witnesses at hearings;
(6) In the course of
investigating a complaint or report of unprofessional conduct, to conduct
practice reviews;
(7) To take emergency
action ordering summary suspension of a license, or restriction or limitation
of the licensee's practice pending proceedings by the disciplining authority;
(8) To use a
presiding officer as authorized in RCW 18.130.095(3) or the office of
administrative hearings as authorized in chapter 34.12 RCW to conduct
hearings. ((However,)) The disciplining authority shall make the
final decision regarding disposition of the license unless the disciplining
authority elects to delegate in writing the final decision to the presiding
officer;
(9) To use individual
members of the boards to direct investigations. However, the member of the
board shall not subsequently participate in the hearing of the case;
(10) To enter into
contracts for professional services determined to be necessary for adequate
enforcement of this chapter;
(11) To contract with
licensees or other persons or organizations to provide services necessary for
the monitoring and supervision of licensees who are placed on probation, whose
professional activities are restricted, or who are for any authorized purpose
subject to monitoring by the disciplining authority;
(12) To adopt standards
of professional conduct or practice;
(13) To grant or deny
license applications, and in the event of a finding of unprofessional conduct
by an applicant or license holder, to impose any sanction against a license
applicant or license holder provided by this chapter;
(14) To designate
individuals authorized to sign subpoenas and statements of charges;
(15) To establish
panels consisting of three or more members of the board to perform any duty or
authority within the board's jurisdiction under this chapter;
(16) To review and
audit the records of licensed health facilities' or services' quality assurance
committee decisions in which a licensee's practice privilege or employment is
terminated or restricted. Each health facility or service shall produce and
make accessible to the disciplining authority the appropriate records and
otherwise facilitate the review and audit. Information so gained shall not be
subject to discovery or introduction into evidence in any civil action pursuant
to RCW 70.41.200(3).
Sec. 5. RCW 18.130.060 and 1991
c 3 s 269 are each amended to read as follows:
In addition to the
authority specified in RCW 18.130.050, the secretary has the following
additional authority:
(1) To employ such
investigative, administrative, and clerical staff as necessary for the
enforcement of this chapter;
(2) Upon the request of
a board, to appoint not more than three pro tem members for the purpose of
participating as members of one or more committees of the board in connection
with proceedings specifically identified in the request. Individuals so
appointed must meet the same minimum qualifications as regular members of the
board. While serving as board members pro tem, persons so appointed have all
the powers, duties, and immunities, and are entitled to the emoluments,
including travel expenses in accordance with RCW 43.03.050 and 43.03.060, of
regular members of the board. The chairperson of a committee shall be a
regular member of the board appointed by the board chairperson. Committees
have authority to act as directed by the board with respect to all matters
concerning the review, investigation, and adjudication of all complaints,
allegations, charges, and matters subject to the jurisdiction of the board.
The authority to act through committees does not restrict the authority of the
board to act as a single body at any phase of proceedings within the board's
jurisdiction. Board committees may make interim orders and issue final
decisions with respect to matters and cases delegated to the committee by the
board. Final decisions may be appealed as provided in chapter 34.05 RCW, the
Administrative Procedure Act;
(3) To establish fees
to be paid for witnesses, expert witnesses, and consultants used in any
investigation and to establish fees to witnesses in any agency adjudicative
proceeding as authorized by RCW 34.05.446;
(4) To conduct
investigations and practice reviews at the direction of the disciplining
authority and to issue subpoenas, administer oaths, and take depositions in the
course of conducting those investigations and practice reviews at the direction
of the disciplining authority;
(5) To have the
health professions regulatory program establish a system to recruit potential
public members, to review the qualifications of such potential members, and to
provide orientation to those public members appointed pursuant to law by the
governor or the secretary to the boards and commissions specified in RCW
18.130.040(2)(b), and to the advisory committees and councils for professions
specified in RCW 18.130.040(2)(a).
Sec. 6. RCW 18.130.095 and 1993
c 367 s 2 are each amended to read as follows:
(1) The secretary,
in consultation with the disciplining authorities, shall develop uniform
procedural rules to respond to public inquiries concerning complaints and their
disposition, active investigations, statement of charges, findings of fact, and
final orders involving a licensee, applicant, or unlicensed person. The
uniform procedural rules adopted under this subsection apply to all
adjudicative proceedings conducted under this chapter and shall include
provisions for the establishing time ((lines)) periods for assessment,
investigation, charging, discovery, settlement, and ((scheduling
hearings)) adjudication of complaints, and shall include enforcement
provisions for violations of the specific time periods by the department, the
disciplining authority, and the respondent.
(2) The uniform
procedures for conducting investigations shall provide that prior to taking a
written statement:
(a) For violation of
this chapter, the investigator shall inform such person, in writing of: (i)
The nature of the complaint; (ii) that the person may consult with legal
counsel at his or her expense prior to making a statement; and (iii) that any
statement that the person makes may be used in an adjudicative proceeding
conducted under this chapter; and
(b) From a witness or
potential witness in an investigation under this chapter, the investigator
shall inform the person, in writing, that the statement may be released to the
licensee, applicant, or unlicensed person under investigation if a statement of
charges is issued.
(3) Only upon the
authorization of a ((disciplinary)) disciplining authority
identified in RCW 18.130.040(2)(b), the secretary, or his or her designee, may
serve as the presiding officer for any disciplinary proceedings of the ((disciplinary))
disciplining authority authorized under this chapter. Except as
provided in RCW 18.130.050(8), the presiding officer shall not vote on or
make any final decision. All functions performed by the presiding officer
shall be subject to chapter 34.05 RCW. The secretary, in consultation with the
((disciplinary)) disciplining authorities, shall adopt procedures
for implementing this subsection. ((This subsection shall not apply to the
board of funeral directors and embalmers.))
(4) The uniform
procedural rules shall be adopted by all disciplining authorities listed in RCW
18.130.040(2), and shall be used for all adjudicative proceedings conducted
under this chapter, as defined by chapter 34.05 RCW. The uniform procedural
rules shall address the use of a presiding officer authorized in subsection (3)
of this section to determine and issue decisions on all legal issues and
motions arising during adjudicative proceedings.
Sec. 7. RCW 18.130.098 and 1994
sp.s. c 9 s 604 are each amended to read as follows:
(1) The settlement
process must be substantially uniform for licensees governed by ((regulatory
entities having authority)) disciplining authorities under this
chapter. The disciplinary authorities may also use alternative dispute
resolution to resolve complaints during adjudicative proceedings.
(2) Disclosure of the
identity of reviewing disciplining authority members who participate in the
settlement process is available to the respondent((s)) or ((their
legal)) his or her representative upon request.
(3) The settlement
conference will occur only if a settlement is not achieved through written
documents. The respondent((s)) will have the opportunity to
conference either by phone or in person with the reviewing disciplining
authority member if the respondent chooses. The respondent((s))
may also have ((their)) his or her attorney conference either by
phone or in person with the reviewing disciplining authority member without the
respondent being present personally.
(4) If the respondent
wants to meet in person with the reviewing disciplining authority member, he or
she will travel to the reviewing ((disciplinary)) disciplining
authority member and have such a conference with ((the attorney general))
a department representative in attendance either by phone or in person.
Sec. 8. RCW 18.130.170 and 1987
c 150 s 6 are each amended to read as follows:
(1) If the disciplining
authority believes a license holder or applicant may be unable to practice with
reasonable skill and safety to consumers by reason of any mental or physical
condition, a statement of charges in the name of the disciplining authority
shall be served on the license holder or applicant and notice shall also be
issued providing an opportunity for a hearing. The hearing shall be limited to
the sole issue of the capacity of the license holder or applicant to practice
with reasonable skill and safety. If the disciplining authority determines
that the license holder or applicant is unable to practice with reasonable
skill and safety for one of the reasons stated in this subsection, the
disciplining authority shall impose such sanctions under RCW 18.130.160 as is
deemed necessary to protect the public.
(2)(a) In
investigating or adjudicating a complaint or report that a license holder or
applicant may be unable to practice with reasonable skill or safety by reason
of any mental or physical condition, the disciplining authority may require a
license holder or applicant to submit to a mental or physical examination by
one or more licensed or certified health professionals designated by the
disciplining authority. The license holder or applicant shall be provided
written notice of the disciplining authority's intent to order a mental or
physical examination, which notice shall include: (i) A statement of the
specific conduct, event, or circumstances justifying an examination; (ii) a
summary of the evidence supporting the disciplining authority's concern that
the license holder or applicant may be unable to practice with reasonable skill
and safety by reason of a mental or physical condition, and the grounds for
believing such evidence to be credible and reliable; (iii) a statement of the
nature, purpose, scope, and content of the intended examination; (iv) a
statement that the license holder or applicant has the right to respond in
writing within twenty days to challenge the disciplining authority's grounds
for ordering an examination or to challenge the manner or form of the
examination; and (v) a statement that if the license holder or applicant timely
responds to the notice of intent, then the license holder or applicant will not
be required to submit to the examination while the response is under
consideration.
(b) Upon submission
of a timely response to the notice of intent to order a mental or physical
examination, the license holder or applicant shall have an opportunity to
respond to or refute such an order by submission of evidence or written
argument or both. The evidence and written argument supporting and opposing
the mental or physical examination shall be reviewed by either a panel of the
disciplining authority members who have not been involved with the allegations
against the license holder or applicant or a neutral decision maker approved by
the disciplining authority. The reviewing panel of the disciplining authority
or the approved neutral decision maker may, in its discretion, ask for oral
argument from the parties. The reviewing panel of the disciplining authority
or the approved neutral decision maker shall prepare a written decision as to
whether: There is reasonable cause to believe that the license holder or
applicant may be unable to practice with reasonable skill and safety by reason
of a mental or physical condition, or the manner or form of the mental or
physical examination is appropriate, or both.
(c) Upon receipt by
the disciplining authority of the written decision, or upon the failure of the
license holder or applicant to timely respond to the notice of intent, the
disciplining authority may issue an order requiring the license holder or
applicant to undergo a mental or physical examination. All such mental or physical
examinations shall be narrowly tailored to address only the alleged mental or
physical condition and the ability of the license holder or applicant to
practice with reasonable skill and safety. An order of the disciplining
authority requiring the license holder or applicant to undergo a mental or
physical examination is not a final order for purposes of appeal. The cost
of the examinations ordered by the disciplining authority shall be paid out of
the health professions account. In addition to any examinations ordered by the
disciplining authority, the licensee may submit physical or mental examination
reports from licensed or certified health professionals of the license holder's
or applicant's choosing and expense. ((Failure of a license holder or
applicant to submit to examination when directed constitutes grounds for
immediate suspension or denial of the license, consequent upon which a default
and final order may be entered without the taking of testimony or presentations
of evidence, unless the failure was due to circumstances beyond the person's
control.))
(d) If the
disciplining authority finds that a license holder or applicant has failed to
submit to a properly ordered mental or physical examination, then the disciplining
authority may order appropriate action or discipline under RCW 18.130.180(9),
unless the failure was due to circumstances beyond the person's control.
However, no such action or discipline may be imposed unless the license holder
or applicant has had the notice and opportunity to challenge the disciplining
authority's grounds for ordering the examination, to challenge the manner and
form, to assert any other defenses, and to have such challenges or defenses
considered by either a panel of the disciplining authority members who have not
been involved with the allegations against the license holder or applicant or a
neutral decision maker approved by the disciplining authority, as previously
set forth in this section. Further, the action or discipline ordered by the
disciplining authority shall not be more severe than a suspension of the
license, certification, registration or application until such time as the
license holder or applicant complies with the properly ordered mental or
physical examination.
(e) Nothing in this
section shall restrict the power of a disciplining authority to act in an
emergency under RCW 34.05.422(4), 34.05.479, and 18.130.050(7).
(f) A
determination by a court of competent jurisdiction that a license holder or
applicant is mentally incompetent or mentally ill is presumptive evidence of
the license holder's or applicant's inability to practice with reasonable skill
and safety. An individual affected under this section shall at reasonable
intervals be afforded an opportunity, at his or her expense, to
demonstrate that the individual can resume competent practice with reasonable
skill and safety to the consumer.
(3) For the purpose of
subsection (2) of this section, an applicant or license holder governed by this
chapter, by making application, practicing, or filing a license renewal, is
deemed to have given consent to submit to a mental, physical, or psychological
examination when directed in writing by the disciplining authority and further
to have waived all objections to the admissibility or use of the examining
health professional's testimony or examination reports by the disciplining
authority on the ground that the testimony or reports constitute privileged
communications.
Sec. 9. 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))
any health care 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; or
(d) Not providing
reasonable and timely access for authorized representatives of the disciplining
authority seeking to perform practice reviews at facilities utilized by the
license holder;
(9) Failure to comply
with an order issued by the ((disciplinary)) disciplining
authority or a stipulation for informal disposition entered into with the ((disciplinary))
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,
or by the use of financial inducements to any patient or witness to prevent or
attempt to prevent him or her from providing evidence in a disciplinary
proceeding;
(23) Current misuse of:
(a) Alcohol;
(b) Controlled
substances; or
(c) Legend drugs;
(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.
10. The secretary of health
shall coordinate and assist the regulatory boards and commissions of the health
professions with prescriptive authority in the development of uniform
guidelines for addressing opiate therapy for acute pain, and chronic pain
associated with cancer and other terminal diseases, or other chronic or
intractable pain conditions. The purpose of the guidelines is to assure the
provision of effective medical treatment in accordance with recognized national
standards and consistent with requirements of the public health and safety.
NEW
SECTION. Sec. 11. Sections 2 and 3 of this
act are necessary for the immediate preservation of the public peace, health,
or safety, or support of the state government and its existing public institutions,
and shall take effect immediately.
