BILL REQ. #:  H-3889.2 

Read first time 01/21/2004.   Referred to Committee on Health Care.

     AN ACT Relating to improving health professions discipline; amending RCW 4.24.260, 18.71.0193, 18.57.011, 18.71.019, 18.130.010, 18.130.150, 18.130.180, and 18.130.900; reenacting and amending RCW 18.130.040; and creating new sections.

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

NEW SECTION.  Sec. 1   The legislature finds that:
     (1) The protection of the health and safety of the people of Washington state is a paramount responsibility entrusted to the state. One of the means for achieving such protection is through regulation of health professionals and effective discipline of those health care professionals who engage in unprofessional conduct. The vast majority of health professionals are dedicated to their profession, and provide quality services to those in their care. However, effective mechanisms are needed to ensure that the small minority of health professionals who engage in unprofessional conduct are reported and disciplined in a timely and effective manner.
     (2) Jurisdiction for health professions disciplinary processes is divided between the secretary of health and fourteen independent boards and commissions. While the presence of a board or commission consisting of members of the profession that they regulate may add value to some steps of the disciplinary process, in other instances their involvement may be unnecessary, or even an impediment, to safeguarding the public's health and safety. It is in the interests of both public health and safety and credentialed health care professionals that the health professions disciplinary system operate effectively and appropriately.

NEW SECTION.  Sec. 2   (1) The task force on improvement of health professions discipline is established. The governor must appoint its members, and shall include:
     (a) A representative of a medicare contracted professional review organization in Washington state;
     (b) One or more representatives of the University of Washington school of health sciences or school of public health with expertise in health professions regulation;
     (c) A representative of the foundation for health care quality;
     (d) Two representatives of health care professionals, neither of whom currently serve, or have served in the past, on a health professions disciplinary board or commission;
     (e) A representative of hospital-based continuous quality improvement programs under RCW 70.41.200;
     (f) A representative of a hospital peer review committee;
     (g) The secretary of the department of health;
     (h) A representative of the superior court judges association;
     (i) A representative of the Washington state bar association; and
     (j) A representative of health care consumers, who does not currently serve and has not in the past served, on a health professions disciplinary board or commission.
     (2) The task force shall conduct an independent review of the funding of the health professions and all phases of the current health professions disciplinary process, from report intake through final case closure, and shall, at a minimum, examine and address the following issues:
     (a) The ability of the disciplining authorities identified in RCW 18.130.040 to effectively safeguard the public from potentially harmful health care practitioners while also ensuring the due process rights of credentialed health care practitioners;
     (b) The feasibility of developing a uniform performance measurement system for health professions discipline;
     (c) Whether there are components to the current health professions discipline system that serve as impediments to improving the quality of health professions discipline, including consideration of:
     (i) The value of boards and commissions in the health professions disciplinary process; and
     (ii) The respective roles of the secretary and boards and commissions in health professions disciplinary functions;
     (d) The feasibility of allowing law enforcement agencies to share information from criminal investigations of credentialed health care providers regardless of whether the provider was not ultimately convicted; and
     (e) Alternative fee structures for health care professionals to simplify funding and the use of those funds across all health care professions.
     (3) The task force may establish technical advisory committees to assist in its efforts, and shall provide opportunities for interested parties to comment upon the task force's findings and recommendations prior to being finalized.
     (4) Staff support to the task force shall be provided by the department of health and the office of financial management.
     (5) The task force shall submit its report and recommendations for improvement of health professions discipline to the relevant committees of the legislature and the governor by October 1, 2005.
     (6) Nothing in this act limits the secretary of health's authority to modify the internal processes or organizational framework of the department.
     (7) Members of the task force shall be reimbursed for travel expenses as provided in RCW 43.03.050 and 43.03.060.

Sec. 3   RCW 4.24.260 and 1994 sp.s. c 9 s 701 are each amended to read as follows:
     ((Physicians licensed under chapter 18.71 RCW, dentists licensed under chapter 18.32 RCW, and pharmacists licensed under chapter 18.64 RCW)) Any member of a health profession listed under RCW 18.130.040 who, in good faith, makes a report, files charges, or presents evidence against another member of ((their)) a health profession based on the claimed ((incompetency or gross misconduct)) unprofessional conduct as provided in RCW 18.130.180 or inability to practice with reasonable skill and safety to consumers by reason of any physical or mental condition as provided in RCW 18.130.170 of such person before the ((medical quality assurance commission established under chapter 18.71 RCW, in a proceeding under chapter 18.32 RCW, or to the board of pharmacy under RCW 18.64.160)) agency, board, or commission responsible for disciplinary activities for the person's profession under chapter 18.130 RCW, shall be immune from civil action for damages arising out of such activities. A person prevailing upon the good faith defense provided for in this section is entitled to recover expenses and reasonable attorneys' fees incurred in establishing the defense and in addition shall receive statutory damages of twenty-five thousand dollars.

Sec. 4   RCW 18.71.0193 and 1994 sp.s. c 9 s 327 are each amended to read as follows:
     (1) A ((licensed health care professional)) physician licensed under this chapter shall report to the commission when he or she has personal knowledge that a practicing physician has either committed an act or acts which may constitute statutorily defined unprofessional conduct or that a practicing physician may be unable to practice medicine with reasonable skill and safety to patients by reason of illness, drunkenness, excessive use of drugs, narcotics, chemicals, or any other type of material, or as a result of any mental or physical conditions.
     (2) Reporting under this section is not required by:
     (a) An appropriately appointed peer review committee member of a licensed hospital or by an appropriately designated professional review committee member of a county or state medical society during the investigative phase of their respective operations if these investigations are completed in a timely manner; or
     (b) A treating licensed health care professional of a physician currently involved in a treatment program as long as the physician patient actively participates in the treatment program and the physician patient's impairment does not constitute a clear and present danger to the public health, safety, or welfare.
     (3) The commission may impose disciplinary sanctions, including license suspension or revocation, on any ((health care professional subject to the jurisdiction of the commission)) physician licensed under this chapter who has failed to comply with this section.
     (4) Every physician licensed under this chapter who reports to the commission as required under subsection (1) of this section in good faith is immune from civil liability for damages arising out of the report, whether direct or derivative. A person prevailing upon the defense provided for in this section is entitled to recover expenses and reasonable attorneys' fees incurred in establishing the defense and in addition shall receive statutory damages of ten thousand dollars. Statutory damages may be denied if the court finds that the complaint or information was communicated in bad faith.

Sec. 5   RCW 18.57.011 and 1987 c 150 s 41 are each amended to read as follows:
     (1) The uniform disciplinary act, chapter 18.130 RCW, governs unlicensed practice, the issuance and denial of licenses, and the discipline of licensees under this chapter.
     (2) The standard of proof for all disciplinary actions, other than criminal actions, under chapter 18.130 RCW against an osteopathic physician licensed under this chapter is proof by a preponderance of the evidence, except actions where the commission orders the revocation of the osteopathic physician's license. The standard of proof to order the revocation of the osteopathic physician's license is proof by clear, cogent, and convincing evidence.

Sec. 6   RCW 18.71.019 and 1996 c 195 s 1 are each amended to read as follows:
     (1) The Uniform Disciplinary Act, chapter 18.130 RCW, governs unlicensed practice and the issuance and denial of licenses and discipline of licensees under this chapter. When a panel of the commission revokes a license, the respondent may request review of the revocation order of the panel by the remaining members of the commission not involved in the initial investigation. The respondent's request for review must be filed within twenty days of the effective date of the order revoking the respondent's license. The review shall be scheduled for hearing by the remaining members of the commission not involved in the initial investigation within sixty days. The commission shall adopt rules establishing review procedures.
     (2) The standard of proof for all disciplinary actions, other than criminal actions, under chapter 18.130 RCW against a physician licensed under this chapter is a preponderance of the evidence, except actions where the commission orders the revocation of the physician's license. Where the commission orders the revocation of the physician's license, the standard of proof shall be clear and convincing evidence.

Sec. 7   RCW 18.130.010 and 1994 sp.s. c 9 s 601 are each amended to read as follows:
     It is the intent of the legislature to strengthen and consolidate disciplinary and licensure procedures for the licensed health and health-related professions and businesses by providing a uniform disciplinary act with standardized procedures for the licensure of health care professionals and the enforcement of laws the purpose of which is to ((assure the public of the adequacy of professional competence and conduct in the healing arts)) reduce unprofessional conduct and unsafe practices in health care, protect the public health, safety, and welfare, and promote patient safety.
     It is also the intent of the legislature that all health and health-related professions newly credentialed by the state come under the Uniform Disciplinary Act.
     Further, the legislature declares that the addition of public members on all health care commissions and boards can give both the state and the public, which it has a paramount statutory responsibility to protect, assurances of accountability and confidence in the various practices of health care.

Sec. 8   RCW 18.130.040 and 2003 c 275 s 2 and 2003 c 258 s 7 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 and designated apprentices 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 licensed under chapter 18.06 RCW;
     (viii) Radiologic technologists certified and X-ray technicians registered under chapter 18.84 RCW;
     (ix) Respiratory care practitioners licensed under chapter 18.89 RCW;
     (x) Persons registered under chapter 18.19 RCW;
     (xi) Persons licensed as mental health counselors, marriage and family therapists, and social workers under chapter 18.225 RCW;
     (xii) Persons registered as nursing pool operators under chapter 18.52C RCW;
     (xiii) Nursing assistants registered or certified under chapter 18.88A RCW;
     (xiv) Health care assistants certified under chapter 18.135 RCW;
     (xv) Dietitians and nutritionists certified under chapter 18.138 RCW;
     (xvi) Chemical dependency professionals certified under chapter 18.205 RCW;
     (xvii) Sex offender treatment providers certified under chapter 18.155 RCW;
     (xviii) Persons licensed and certified under chapter 18.73 RCW or RCW 18.71.205;
     (xix) Denturists licensed under chapter 18.30 RCW;
     (xx) Orthotists and prosthetists licensed under chapter 18.200 RCW;
     (xxi) Surgical technologists registered under chapter 18.215 RCW; and
     (xxii) Recreational therapists.
     (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 of hearing and speech 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 and registrations 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.
     (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) The standard of proof for all disciplinary actions, other than criminal actions, under this chapter is proof by a preponderance of the evidence, except actions regarding licenses issued under chapters 18.57 and 18.71 RCW. The preponderance of the evidence standard is consistent with the primary purpose for proceedings under this chapter, which is the protection of the public health, safety, and welfare.
     (5) 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.

Sec. 9   RCW 18.130.150 and 1997 c 58 s 831 are each amended to read as follows:
     (1)(a) A person whose license has been suspended or revoked under this chapter may petition the disciplining authority for reinstatement after an interval as determined by the disciplining authority in the order. The disciplining authority shall hold hearings on the petition and may deny the petition or may order reinstatement and impose terms and conditions as provided in RCW 18.130.160 and issue an order of reinstatement. The person whose license has been suspended or revoked has the burden of proving, by a preponderance of the evidence, that the license should be reinstated. The disciplining authority may consider the following nonexclusive factors when assessing whether to reinstate the license:
     (i) The person's character, standing, and professional reputation in the community in which he or she practiced before the suspension or revocation;
     (ii) The ethical standards the person observed in his or her health care practice;
     (iii) The nature and character of the charges for which the license was suspended or revoked;
     (iv) The sufficiency of the action taken in connection with the charges and whether restitution was made when required;
     (v) The time that has elapsed since the suspension or revocation and the person's attitude, conduct, and reformation subsequent to the suspension or revocation;
     (vi) The person's prior proficiency in practicing the profession and his or her expected competency should the license be reinstated; and
     (vii) The sincerity, frankness, and truthfulness of the person in presenting and discussing the factors relating to the suspension or revocation.
     (b) The disciplining authority may require successful completion of an examination as a condition of reinstatement.
     (2) A person whose license has been suspended for noncompliance with a support order or a residential or visitation order under RCW 74.20A.320 may petition for reinstatement at any time by providing the secretary a release issued by the department of social and health services stating that the person is in compliance with the order. If the person has continued to meet all other requirements for reinstatement during the suspension, the secretary shall automatically reissue the person's license upon receipt of the release, and payment of a reinstatement fee, if any.

Sec. 10   RCW 18.130.180 and 1995 c 336 s 9 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 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. Full faith and credit will be extended to the action by the competent authority, even if procedures or standards of proof vary in the other jurisdiction;
     (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;
     (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 disciplining authority or a stipulation for informal disposition entered into with the disciplining authority;
     (10) Aiding or abetting an unlicensed person to practice when a license is required;
     (11) Violations of rules established by any health agency;
     (12) Practice beyond the scope of practice as defined by law or rule;
     (13) Misrepresentation or fraud in any aspect of the conduct of the business or profession;
     (14) Failure to adequately supervise auxiliary staff to the extent that the consumer's health or safety is at risk;
     (15) Engaging in a profession involving contact with the public while suffering from a contagious or infectious disease involving serious risk to public health;
     (16) Promotion for personal gain of any unnecessary or inefficacious drug, device, treatment, procedure, or service;
     (17) Conviction of any gross misdemeanor or felony relating to the practice of the person's profession. For the purposes of this subsection, conviction includes all instances in which a plea of guilty or nolo contendere is the basis for conviction and all proceedings in which the sentence has been deferred or suspended. Nothing in this section abrogates rights guaranteed under chapter 9.96A RCW;
     (18) The procuring, or aiding or abetting in procuring, a criminal abortion;
     (19) The offering, undertaking, or agreeing to cure or treat disease by a secret method, procedure, treatment, or medicine, or the treating, operating, or prescribing for any health condition by a method, means, or procedure which the licensee refuses to divulge upon demand of the disciplining authority;
     (20) The willful betrayal of a practitioner-patient privilege as recognized by law;
     (21) Violation of chapter 19.68 RCW;
     (22) Interference with an investigation or disciplinary proceeding by willful misrepresentation of facts before the disciplining authority or its authorized representative, or by the use of threats or harassment against any patient or witness to prevent them from providing evidence in a disciplinary proceeding or any other legal action, 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.

Sec. 11   RCW 18.130.900 and 1986 c 259 s 14 are each amended to read as follows:
     (1) This chapter shall be known and cited as the uniform disciplinary act.
     (2) This chapter applies to any conduct, acts, or conditions occurring on or after June 11, 1986.
     (3) This chapter does not apply to or govern the construction of and disciplinary action for any conduct, acts, or conditions occurring prior to June 11, 1986. Such conduct, acts, or conditions must be construed and disciplinary action taken according to the provisions of law existing at the time of the occurrence in the same manner as if this chapter had not been enacted.
     (4) The amendments to chapter 18.130 RCW in sections 7, 8, 9, and 10 of this act are clarifying amendments and should not be construed as a change in the construction and application of chapter 18.130 RCW.