2879-S.E AMS HEA S5027.1

ESHB 2879 - S COMM AMD

By Committee on Health & Long-Term Care

Strike everything after the enacting clause and insert the following:

"Sec. 1. RCW 18.130.090 and 1993 c 367 s 1 are each amended to read as follows:

(1) If the disciplining authority determines, upon investigation, that there is reason to believe a violation of RCW 18.130.180 has occurred, a statement of charge or charges ((shall)) may be prepared and served upon the license holder or applicant at the earliest practical time. The statement of charge or charges shall be accompanied by a notice that the license holder or applicant may request ((a hearing)) an adjudicative proceeding to contest the charge or charges.

(a) The license holder or applicant must file a request for ((hearing)) an adjudicative proceeding with the disciplining authority within twenty days after being served the statement of charges. Nothing in this section precludes the license holder and the disciplinary authority from engaging in settlement negotiations and resolving the matter through a settlement. If the twenty-day limit results in a hardship upon the license holder or applicant, he or she may request for good cause an extension not to exceed sixty additional days. If the disciplining authority finds that there is good cause, it shall grant the extension.

(b) The failure to request ((a hearing)) an adjudicative proceeding constitutes a default((, whereupon)). The disciplining authority may then enter a decision on the basis of the facts available to it.

(2) As an alternative to filing a statement of charge or charges, the disciplining authority may issue to a license holder or applicant a written notice of action identifying the allegations and proposed sanction, except revocation, authorized under RCW 18.130.160. The notice shall state the reasons for the action. The notice shall be sent to the license holder or applicant by certified mail, with return receipt requested.

(a) The applicant or license holder has the right to an adjudicative proceeding. If an adjudicative proceeding is requested, the action will be of no effect, other than to identify the allegations and proposed sanctions. The license holder or applicant must file a request for an adjudicative proceeding with the disciplining authority within twenty days after being served the action. If the twenty-day limit results in a hardship upon the license holder or applicant, he or she may request for good cause an extension not to exceed sixty additional days. If the disciplining authority finds that there is good cause, it shall grant the extension.

(b) In the event no request for an adjudicative proceeding is filed within the time allowed by (a) of this subsection and the department has received the return receipt from the certified mailing, the action becomes effective.

(c) In the event the license holder or applicant can show good cause for failure to receive and reply to the written notice of action and proposed sanction, the license holder or applicant may petition for reconsideration and judicial review according to the rights and privileges established for relief of all agency actions created in chapter 34.05 RCW, the administrative procedure act.

(3) If ((a hearing)) an adjudicative proceeding is requested, the time of the ((hearing)) adjudicative proceeding shall be fixed by the disciplining authority as soon as convenient, but the ((hearing)) adjudicative proceeding shall not be held earlier than thirty days after service of the charges or notice of action upon the license holder or applicant.

Sec. 2. RCW 18.130.190 and 2003 c 53 s 141 are each amended to read as follows:

(1) The secretary shall investigate complaints concerning practice by unlicensed persons of a profession or business for which a license is required by the chapters specified in RCW 18.130.040. In the investigation of the complaints, the secretary shall have the same authority as provided the secretary under RCW 18.130.050 and 18.130.060.

(2) The secretary may issue a notice of intention to issue a cease and desist order to any person whom the secretary has reason to believe is engaged in the unlicensed practice of a profession or business for which a license is required by the chapters specified in RCW 18.130.040. The person to whom such notice is issued may request an adjudicative proceeding to contest the charges. The request for hearing must be filed within twenty days after service of the notice of intention to issue a cease and desist order. The failure to request a hearing constitutes a default, whereupon the secretary may enter a permanent cease and desist order, which may include a civil fine. All proceedings shall be conducted in accordance with chapter 34.05 RCW.

(3) If the secretary makes a final determination that a person has engaged or is engaging in unlicensed practice, the secretary may issue a cease and desist order. In addition, the secretary may impose a civil fine in an amount not exceeding one thousand dollars for each day upon which the person engaged in unlicensed practice of a business or profession for which a license is required by one or more of the chapters specified in RCW 18.130.040. The proceeds of such fines shall be deposited to the health professions account.

(4) If the secretary makes a written finding of fact that the public interest will be irreparably harmed by delay in issuing an order, the secretary may issue a temporary cease and desist order. The person receiving a temporary cease and desist order shall be provided an opportunity for a prompt hearing. The temporary cease and desist order shall remain in effect until further order of the secretary. The failure to request a prompt or regularly scheduled hearing constitutes a default, whereupon the secretary may enter a permanent cease and desist order, which may include a civil fine.

(5) Neither the issuance of a cease and desist order nor payment of a civil fine shall relieve the person so practicing or operating a business without a license from criminal prosecution therefor, but the remedy of a cease and desist order or civil fine shall be in addition to any criminal liability. The cease and desist order is conclusive proof of unlicensed practice and may be enforced under RCW 7.21.060. This method of enforcement of the cease and desist order or civil fine may be used in addition to, or as an alternative to, any provisions for enforcement of agency orders set out in chapter 34.05 RCW.

(6) The attorney general, a county prosecuting attorney, the secretary, a board, or any person may in accordance with the laws of this state governing injunctions, maintain an action in the name of this state to enjoin any person practicing a profession or business for which a license is required by the chapters specified in RCW 18.130.040 without a license from engaging in such practice or operating such business until the required license is secured. However, the injunction shall not relieve the person so practicing or operating a business without a license from criminal prosecution therefor, but the remedy by injunction shall be in addition to any criminal liability.

(7)(a) Unlicensed practice of a profession or operating a business for which a license is required by the chapters specified in RCW 18.130.040, unless otherwise exempted by law, constitutes a gross misdemeanor for a single violation.

(b) Each subsequent violation, whether alleged in the same or in subsequent prosecutions, is a class C felony punishable according to chapter 9A.20 RCW.

(8) All fees, fines, forfeitures, and penalties collected or assessed by a court because of a violation of this section shall be remitted to the health professions account.

NEW SECTION. Sec. 3. Section 2 of this act takes effect January 1, 2005."

ESHB 2879 - S COMM AMD

By Committee on Health & Long-Term Care

On page 1, line 1 of the title, after "procedures;" strike the remainder of the title and insert "amending RCW 18.130.090 and 18.130.190; and providing an effective date."

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