BILL REQ. #:  H-0965.1 

Read first time 01/21/09.   Referred to Committee on Health Care & Wellness.

     AN ACT Relating to health professions discipline; and amending RCW 18.130.110, 18.130.170, and 18.130.172.

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

Sec. 1   RCW 18.130.110 and 2005 c 274 s 232 are each amended to read as follows:
     (1)(a) In the event of a finding of unprofessional conduct, the disciplining authority shall prepare and serve findings of fact and an order as provided in chapter 34.05 RCW, the Administrative Procedure Act.
     (b) If the license holder or applicant is found to have not committed unprofessional conduct, the disciplining authority shall forthwith prepare and serve findings of fact and an order of dismissal of the charges, including public exoneration of the licensee or applicant. If the license holder was subject to summary suspension or restriction under RCW 18.130.135, the disciplining authority shall, within five business days of the order of dismissal, issue the license holder a new license.
     (c) The findings of fact and order shall be retained by the disciplining authority as a permanent record.
     (2) The disciplining authority shall report the issuance of statements of charges and final orders in cases processed by the disciplining authority to:
     (a) The person or agency who brought to the disciplining authority's attention information which resulted in the initiation of the case;
     (b) Appropriate organizations, public or private, which serve the professions;
     (c) The public. Notification of the public shall include press releases to appropriate local news media and the major news wire services; and
     (d) Counterpart licensing boards in other states, or associations of state licensing boards.
     (3) This section shall not be construed to require the reporting of any information which is exempt from public disclosure under chapter 42.56 RCW.
     (4) For purposes of this section, "public exoneration" includes, but is not limited to, the removal of any press releases regarding the disciplinary proceedings from the department's web site and the modification of any other documents on the web site pertaining to the disciplinary proceedings to indicate that the license holder has been exonerated. The modifications to the documents on the web site must use the term "exonerated."

Sec. 2   RCW 18.130.170 and 2008 c 134 s 11 are each amended to read as follows:
     (1) If the disciplining authority believes a license holder 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 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 to practice with reasonable skill and safety. If the disciplining authority determines that the license holder 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 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 to submit to a mental or physical examination by one or more licensed or certified health professionals designated by the disciplining authority from a roster of at least ten licensed or certified health professionals maintained by the disciplining authority for purposes of this subsection. The license holder may request that the examination be performed by a professional who is not on the disciplining authority's roster. The department shall utilize the professional requested by the license holder unless it finds that the professional is unqualified to perform the examination or the professional is unlikely to perform the examination in an impartial manner due to a preexisting relationship with the license holder. If the department utilizes the professional requested by the license holder, it may not pay the professional more than it pays the professionals on its roster. The license holder 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 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 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 timely responds to the notice of intent, then the license holder 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 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 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 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 to timely respond to the notice of intent, the disciplining authority may issue an order requiring the license holder 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 to practice with reasonable skill and safety. An order of the disciplining authority requiring the license holder 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 license holder may submit physical or mental examination reports from licensed or certified health professionals of the license holder's choosing and expense.
     (d) If the disciplining authority finds that a license holder 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 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 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 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(8).
     (f) A determination by a court of competent jurisdiction that a license holder is mentally incompetent or an individual with mental illness is presumptive evidence of the license holder'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, a 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. 3   RCW 18.130.172 and 2008 c 134 s 24 are each amended to read as follows:
     (1) Prior to serving a statement of charges under RCW 18.130.090 or 18.130.170, the disciplinary authority may furnish a statement of allegations to the licensee along with a detailed summary of the evidence relied upon to establish the allegations and a proposed stipulation for informal resolution of the allegations. These documents shall be exempt from public disclosure until such time as the allegations are resolved either by stipulation or otherwise.
     (2) The disciplinary authority and the licensee may stipulate that the allegations may be disposed of informally in accordance with this subsection. The stipulation shall contain a statement of the facts leading to the filing of the complaint; the act or acts of unprofessional conduct alleged to have been committed or the alleged basis for determining that the licensee is unable to practice with reasonable skill and safety; a statement that the stipulation is not to be construed as a finding of either unprofessional conduct or inability to practice; a statement that the stipulation does not constitute an admission on behalf of the licensee of any of the facts or acts alleged in the stipulation; an acknowledgment that a finding of unprofessional conduct or inability to practice, if proven, constitutes grounds for discipline under this chapter; and an agreement on the part of the licensee that the sanctions set forth in RCW 18.130.160, except RCW 18.130.160 (1), (2), (6), and (8), may be imposed as part of the stipulation, except that no fine may be imposed but the licensee may agree to reimburse the disciplinary authority the costs of investigation and processing the complaint up to an amount not exceeding one thousand dollars per allegation; and an agreement on the part of the disciplinary authority to forego further disciplinary proceedings concerning the allegations. A stipulation entered into pursuant to this subsection shall not be considered formal disciplinary action.
     (3) If the licensee declines to agree to disposition of the charges by means of a stipulation pursuant to subsection (2) of this section, the disciplinary authority may proceed to formal disciplinary action pursuant to RCW 18.130.090 or 18.130.170.
     (4) Upon execution of a stipulation under subsection (2) of this section by both the licensee and the disciplinary authority, the complaint is deemed disposed of and shall become subject to public disclosure on the same basis and to the same extent as other records of the disciplinary authority. Should the licensee fail to pay any agreed reimbursement within thirty days of the date specified in the stipulation for payment, the disciplinary authority may seek collection of the amount agreed to be paid in the same manner as enforcement of a fine under RCW 18.130.165.