BILL REQ. #:  S-2066.1 

READ FIRST TIME 02/23/07.   

     AN ACT Relating to disciplinary actions for health care providers regulated under chapter 18.130 RCW; amending RCW 18.130.080, 18.130.180, and 18.130.020; adding a new section to chapter 18.130 RCW; and creating a new section.

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

NEW SECTION.  Sec. 1   The legislature recognizes that Washington citizens desire and receive health care and treatment from a variety of professional providers. The legislature further recognizes that some health care providers have used the professional disciplinary process as a means of attacking other health care providers. In order to prevent unwarranted attacks on other health care providers where the health of the patient is not at risk, the legislature is making changes in the uniform disciplinary act to ensure that all complaints against health care providers are grounded in real harm to the patient rather than mere disagreement about the type of procedure provided.

Sec. 2   RCW 18.130.080 and 2006 c 99 s 5 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. The complainant must sign the written complaint to the disciplining authority. The members of the disciplining authority must determine as to each complaint that there is probable cause to merit an investigation of the allegations in the complaint by the disciplining authority. If the disciplining authority determines that the complaint merits an 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 conducting the investigation, the disciplining authority may consult with a practitioner or practitioners who utilize the procedure in question in the complaint in their practices to determine whether the license holder or applicant against whom the complaint has been filed is guilty of 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. A complaint against a license holder or applicant based solely on the use of a procedure, in the absence of any proof of harm to a patient, shall not be in good faith.

NEW SECTION.  Sec. 3   A new section is added to chapter 18.130 RCW to read as follows:
     In order to sustain a complaint against a license holder or applicant, the disciplining authority must provide the testimony of at least one practitioner who utilizes the procedure that is the subject of the complaint in question in his or her practice, or when there is no practitioner who utilizes the procedure in question that is readily available, a practitioner who practices complementary alternative medicine may be used, to establish the license holder or applicant is guilty of unprofessional conduct.

Sec. 4   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)) procedure 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)) and the patient has signed a writing that complies with the requirements set forth in RCW 7.70.060. The writing shall constitute prima facie evidence that the patient gave his or her consent to the treatment that is the subject of the complaint;
     (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;
     (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. 5   RCW 18.130.020 and 1995 c 336 s 1 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.
     (11) "False, fraudulent, or misleading advertising" means a statement that includes a misrepresentation of fact that is likely to mislead or deceive because of a failure to disclose material facts, that is intended or likely to create false or unjustified expectations of favorable results, or that includes representations or implications that in reasonable probability will cause an ordinarily prudent person to misunderstand or to be deceived.