BILL REQ. #:  H-4771.1 

READ FIRST TIME 02/03/06.   

     AN ACT Relating to health professions discipline; amending RCW 18.130.060, 18.130.070, 18.130.050, 18.130.080, 18.130.160, and 18.130.175; adding new sections to chapter 18.130 RCW; adding a new section to chapter 43.43 RCW; repealing RCW 18.57.174 and 18.71.0193; providing an effective date; and providing an expiration date.

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

Sec. 1   RCW 18.130.060 and 2001 c 101 s 1 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 pro tem members to participate as members of a panel 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. Pro tem members appointed for matters under this chapter are appointed for a term of no more than one year. No pro tem member may serve more than four one-year terms. 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 panel shall be a regular member of the board appointed by the board chairperson. Panels 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 panels 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 panels may make interim orders and issue final decisions with respect to matters and cases delegated to the panel 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); and
     (6) To adopt rules, in consultation with the disciplining authorities, requiring every license holder to report information identified in RCW 18.130.070.

Sec. 2   RCW 18.130.070 and 2005 c 470 s 2 are each amended to read as follows:
     (1)(a) The ((disciplining authority may)) secretary shall adopt rules requiring ((any person, including, but not limited to, licensees, corporations, organizations, health care facilities, impaired practitioner programs, or voluntary substance abuse monitoring programs approved by the disciplining authority and state or local governmental agencies,)) every license holder to report to the appropriate disciplining authority any conviction, determination, or finding that ((a)) another license holder has committed an act which constitutes unprofessional conduct, or to report information to the disciplining authority, an impaired practitioner program, or voluntary substance abuse monitoring program approved by the disciplining authority, which indicates that the other license holder may not be able to practice his or her profession with reasonable skill and safety to consumers as a result of a mental or physical condition.
     (b) The secretary may adopt rules to require other persons, including corporations, organizations, health care facilities, impaired practitioner programs, or voluntary substance abuse monitoring programs approved by a disciplining authority, and state or local government agencies to report:
     (i) Any conviction, determination, or finding that a license holder has committed an act which constitutes unprofessional conduct; or
     (ii) Information to the disciplining authority, an impaired practitioner program, or voluntary substance abuse monitoring program approved by the disciplining authority, which indicates that the license holder may not be able to practice his or her profession with reasonable skill and safety to consumers as a result of a mental or physical condition.
     (c) If a report has been made by a hospital to the department pursuant to RCW 70.41.210, a report to the disciplining authority is not required. To facilitate meeting the intent of this section, the cooperation of agencies of the federal government is requested by reporting any conviction, determination, or finding that a federal employee or contractor regulated by the disciplining authorities enumerated in this chapter has committed an act which constituted unprofessional conduct and reporting any information which indicates that a federal employee or contractor regulated by the disciplining authorities enumerated in this chapter may not be able to practice his or her profession with reasonable skill and safety as a result of a mental or physical condition.
     (2) If a person fails to furnish a required report, the disciplining authority may petition the superior court of the county in which the person resides or is found, and the court shall issue to the person an order to furnish the required report. A failure to obey the order is a contempt of court as provided in chapter 7.21 RCW.
     (3) A person is immune from civil liability, whether direct or derivative, for providing information to the disciplining authority pursuant to the rules adopted under subsection (1) of this section.
     (4)(a) The holder of a license subject to the jurisdiction of this chapter shall report to the disciplining authority:
     (i) Any conviction, determination, or finding that ((the licensee)) he or she has committed unprofessional conduct or is unable to practice with reasonable skill or safety; and
     (ii) Any disqualification from participation in the federal medicare program, under Title XVIII of the federal social security act or the federal medicaid program, under Title XIX of the federal social security act.
     (b) Failure to report within thirty days of notice of the conviction, determination, ((or)) finding, or disqualification constitutes grounds for disciplinary action.

NEW SECTION.  Sec. 3   A new section is added to chapter 18.130 RCW to read as follows:
     Any individual who applies for a license or temporary practice permit or holds a license or temporary practice permit and is prohibited from practicing a health care profession in another state because of an act of unprofessional conduct that is substantially equivalent to an act of unprofessional conduct prohibited by this chapter or any of the chapters specified in RCW 18.130.040 is prohibited from practicing a health care profession in this state until proceedings of the appropriate disciplining authority have been completed under RCW 18.130.050.

Sec. 4   RCW 18.130.050 and 1995 c 336 s 4 are each 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)) license holder's practice pending proceedings by the disciplining authority. Consistent with section 3 of this act, a disciplining authority shall issue a summary suspension of the license or temporary practice permit of a license holder prohibited from practicing a health care profession in another state, federal, or foreign jurisdiction because of an act of unprofessional conduct that is substantially equivalent to an act of unprofessional conduct prohibited by this chapter or any of the chapters specified in RCW 18.130.040. The summary suspension remains in effect until proceedings by the Washington disciplining authority have been completed;
     (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. 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 18.130.080 and 1998 c 132 s 9 are each amended to read as follows:
     (1) A person, including but not limited to consumers, licensees, corporations, organizations, health care facilities, impaired practitioner programs, or voluntary substance abuse monitoring programs approved by disciplining authorities, and state and local governmental agencies, may submit a written complaint to the disciplining authority charging a license holder or applicant with unprofessional conduct and specifying the grounds therefor or to report information to the disciplining authority, or voluntary substance abuse monitoring program, or an impaired practitioner program approved by the disciplining authority, which indicates that the license holder may not be able to practice his or her profession with reasonable skill and safety to consumers as a result of a mental or physical condition. If the disciplining authority determines that the complaint merits investigation, or if the disciplining authority has reason to believe, without a formal complaint, that a license holder or applicant may have engaged in unprofessional conduct, the disciplining authority shall investigate to determine whether there has been unprofessional conduct. In determining whether or not to investigate, the disciplining authority shall consider any prior complaints received by the disciplining authority, any prior findings of fact under RCW 18.130.110, any stipulations to informal disposition under RCW 18.130.172, and any comparable action taken by other state disciplining authorities.
     (2) Notwithstanding subsection (1) of this section, the disciplining authority shall initiate an investigation in every instance where the disciplining authority receives information that a health care provider has been disqualified from participating in the federal medicare program, under Title XVIII of the federal social security act, or the federal medicaid program, under Title XIX of the federal social security act.
     (3) A person who files a complaint or reports information under this section in good faith is immune from suit in any civil action related to the filing or contents of the complaint.

Sec. 6   RCW 18.130.160 and 2001 c 195 s 1 are each amended to read as follows:
     Upon a finding, after hearing, that a license holder or applicant has committed unprofessional conduct or is unable to practice with reasonable skill and safety due to a physical or mental condition, the disciplining authority may issue an order providing for one or any combination of the following:
     (1) Revocation of the license;
     (2) Suspension of the license for a fixed or indefinite term;
     (3) Restriction or limitation of the practice;
     (4) Requiring the satisfactory completion of a specific program of remedial education or treatment;
     (5) The monitoring of the practice by a supervisor approved by the disciplining authority;
     (6) Censure or reprimand;
     (7) Compliance with conditions of probation for a designated period of time;
     (8) Payment of a fine for each violation of this chapter, not to exceed five thousand dollars per violation. Funds received shall be placed in the health professions account;
     (9) Denial of the license request;
     (10) Corrective action;
     (11) Refund of fees billed to and collected from the consumer;
     (12) A surrender of the practitioner's license in lieu of other sanctions, which must be reported to the federal data bank.
     Any of the actions under this section may be totally or partly stayed by the disciplining authority. Safeguarding the public's health and safety is the paramount responsibility of every disciplining authority and in determining what action is appropriate, the disciplining authority must first consider what sanctions are necessary to protect or compensate the public. Only after such provisions have been made may the disciplining authority consider and include in the order requirements designed to rehabilitate the license holder or applicant. All costs associated with compliance with orders issued under this section are the obligation of the license holder or applicant.
     The licensee or applicant may enter into a stipulated disposition of charges that includes one or more of the sanctions of this section, but only after a statement of charges has been issued and the licensee has been afforded the opportunity for a hearing and has elected on the record to forego such a hearing. The stipulation shall either contain one or more specific findings of unprofessional conduct or inability to practice, or a statement by the licensee acknowledging that evidence is sufficient to justify one or more specified findings of unprofessional conduct or inability to practice. The stipulation entered into pursuant to this subsection shall be considered formal disciplinary action for all purposes.

Sec. 7   RCW 18.130.175 and 2005 c 274 s 233 are each amended to read as follows:
     (1) In lieu of disciplinary action under RCW 18.130.160 and if the disciplining authority determines that the unprofessional conduct may be the result of substance abuse, the disciplining authority may refer the license holder to a voluntary substance abuse monitoring program approved by the disciplining authority.
     The cost of the treatment shall be the responsibility of the license holder, but the responsibility does not preclude payment by an employer, existing insurance coverage, or other sources. Primary alcoholism or other drug addiction treatment shall be provided by approved treatment programs under RCW 70.96A.020 or by any other provider approved by the entity or the commission. However, nothing shall prohibit the disciplining authority from approving additional services and programs as an adjunct to primary alcoholism or other drug addiction treatment. The disciplining authority may also approve the use of out-of-state programs. Referral of the license holder to the program shall be done only with the consent of the license holder. Referral to the program may also include probationary conditions for a designated period of time. If the license holder does not consent to be referred to the program or does not successfully complete the program, the disciplining authority may take appropriate action under RCW 18.130.160 which includes suspension of the license unless or until the disciplining authority, in consultation with the director of the voluntary substance abuse monitoring program, determines the license holder is able to practice safely. The secretary shall adopt uniform rules for the evaluation by the disciplinary authority of a relapse or program violation on the part of a license holder in the substance abuse monitoring program. The evaluation shall encourage program participation with additional conditions, in lieu of disciplinary action, when the disciplinary authority determines that the license holder is able to continue to practice with reasonable skill and safety.
     (2) In addition to approving substance abuse monitoring programs that may receive referrals from the disciplining authority, the disciplining authority may establish by rule requirements for participation of license holders who are not being investigated or monitored by the disciplining authority for substance abuse. License holders voluntarily participating in the approved programs without being referred by the disciplining authority shall not be subject to disciplinary action under RCW 18.130.160 for their substance abuse, and shall not have their participation made known to the disciplining authority, if they meet the requirements of this section and the program in which they are participating.
     (3) The license holder shall sign a waiver allowing the program to release information to the disciplining authority if the licensee does not comply with the requirements of this section or is unable to practice with reasonable skill or safety. The substance abuse program shall report to the disciplining authority any license holder who fails to comply with the requirements of this section or the program or who, in the opinion of the program, is unable to practice with reasonable skill or safety. License holders shall report to the disciplining authority if they fail to comply with this section or do not complete the program's requirements. License holders may, upon the agreement of the program and disciplining authority, reenter the program if they have previously failed to comply with this section.
     (4) The treatment and pretreatment records of license holders referred to or voluntarily participating in approved programs shall be confidential, shall be exempt from chapter 42.56 RCW, and shall not be subject to discovery by subpoena or admissible as evidence except for monitoring records reported to the disciplining authority for cause as defined in subsection (3) of this section. Monitoring records relating to license holders referred to the program by the disciplining authority or relating to license holders reported to the disciplining authority by the program for cause, shall be released to the disciplining authority at the request of the disciplining authority. Records held by the disciplining authority under this section shall be exempt from chapter 42.56 RCW and shall not be subject to discovery by subpoena except by the license holder.
     (5) "Substance abuse," as used in this section, means the impairment, as determined by the disciplining authority, of a license holder's professional services by an addiction to, a dependency on, or the use of alcohol, legend drugs, or controlled substances.
     (6) This section does not affect an employer's right or ability to make employment-related decisions regarding a license holder. This section does not restrict the authority of the disciplining authority to take disciplinary action for any other unprofessional conduct.
     (7) A person who, in good faith, reports information or takes action in connection with this section is immune from civil liability for reporting information or taking the action.
     (a) The immunity from civil liability provided by this section shall be liberally construed to accomplish the purposes of this section and the persons entitled to immunity shall include:
     (i) An approved monitoring treatment program;
     (ii) The professional association operating the program;
     (iii) Members, employees, or agents of the program or association;
     (iv) Persons reporting a license holder as being possibly impaired or providing information about the license holder's impairment; and
     (v) Professionals supervising or monitoring the course of the impaired license holder's treatment or rehabilitation.
     (b) The courts are strongly encouraged to impose sanctions on clients and their attorneys whose allegations under this subsection are not made in good faith and are without either reasonable objective, substantive grounds, or both.
     (c) The immunity provided in this section is in addition to any other immunity provided by law.

NEW SECTION.  Sec. 8   A new section is added to chapter 43.43 RCW to read as follows:
     (1) Upon a guilty plea or conviction of a person for any felony crime involving homicide under chapter 9A.32 RCW, assault under chapter 9A.36 RCW, kidnapping under chapter 9A.40 RCW, sex offenses under chapter 9A.44 RCW, burglary or trespass under chapter 9A.52 RCW, theft or robbery under chapter 9A.56 RCW, or fraud under chapter 9A.60 RCW the prosecuting attorney shall notify the state patrol of such guilty pleas or convictions.
     (2) When the state patrol receives information that a person has pled guilty to or been convicted of one of the felony crimes under subsection (1) of this section, the state patrol shall transmit that information to the department of health. It is the duty of the department of health to identify whether the person holds a credential issued by a disciplining authority listed under RCW 18.130.040, and provide this information to the disciplining authority that issued the credential to the person who pled guilty or was convicted of a crime listed in subsection (1) of this section.

NEW SECTION.  Sec. 9   A new section is added to chapter 18.130 RCW to read as follows:
     (1) When developing its biennial budget request for appropriation of the health professions account created in RCW 43.70.320, beginning in the 2007-2009 budget and continuing in subsequent biennia, the department shall specify the number of full-time employees designated as investigators and attorneys and the costs associated with supporting their activities. The department shall also specify the additional full-time employees designated as investigators and attorneys that are required to achieve a staffing level that is able to respond promptly, competently, and appropriately to the workload associated with health professions disciplinary activities and the costs associated with supporting disciplinary activities. In identifying the need for additional staff, the department shall develop a formula based on its prior experience with staff levels compared to the number of providers, complaints, investigations, and other criteria that the department determines is relevant to staffing level decisions. The department must request additional funds for activities that most critically impact public health and safety. The budget request must specify the methodology used for each biennium.
     (2) The joint legislative audit and review committee, in consultation with the department, shall report to the legislature by December 1, 2010, with recommendations for formulas for determining appropriate staffing levels for investigators and attorneys at the department of health involved in the health professions disciplinary process to achieve prompt, competent, and appropriate responses to complaints of unprofessional conduct. The report must be based upon the department's prior experience with staff levels compared to the number of providers, complaints, investigations, and other criteria that the department finds are relevant to determining appropriate staffing levels.
     (3) This section expires July 1, 2011.

NEW SECTION.  Sec. 10   The following acts or parts of acts are each repealed:
     (1) RCW 18.57.174 (Duty to report unprofessional conduct--Exceptions) and 2000 c 171 s 20 & 1986 c 300 s 9; and
     (2) RCW 18.71.0193 (Duty to report unprofessional conduct--Exceptions) and 1994 sp.s. c 9 s 327 & 1986 c 300 s 5.

NEW SECTION.  Sec. 11   Section 7 of this act takes effect July 1, 2006.