BILL REQ. #:  S-0703.3 

Read first time 01/30/09.   Referred to Committee on Health & Long-Term Care.

     AN ACT Relating to access to alternative health care practitioners; and adding a new chapter to Title 18 RCW.

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

NEW SECTION.  Sec. 1   This act may be known and cited as the health care choice act.

NEW SECTION.  Sec. 2   (1) The legislature finds that, based upon a comprehensive report by the national institutes of health and other research data, hundreds of thousands of individuals in this state are presently receiving a substantial amount of health care from providers of health care services who are not licensed, registered, or certified by this state. Such health care services are often referred to as complementary and alternative health care practices or natural healing therapies and modalities.
     (2) The legislature, in RCW 18.120.010, confirms its intent that all individuals should be permitted to enter into a health profession unless there is an overwhelming need for the state to protect the interests of the public by restricting entry into the profession and, if such a need is identified, the regulation adopted by the state should be set at the least restrictive level consistent with the public interest to be protected.
     (3) It is the intent of the legislature to allow health care practitioners who are not licensed, certified, or registered by the state, to provide health care services, unless there is clear and convincing evidence that the specific health care service causes serious physical or mental harm or causes imminent and significant risk of discernable, significant, and serious physical or mental injury, under the circumstances in which the health care practitioner knew, or in the exercise of reasonable care should have known, would result in such injury.
     (4) It is recognized that this chapter may authorize conduct by health care practitioners who are not licensed, certified, or registered by the state, which may be interpreted by the department of health or regulatory boards or commissions as overlapping with the statutory definition of the unlicensed practice of a health profession in RCW 18.120.020(4). It is the intent of this chapter to provide those practicing under this chapter safe harbor from violations of other provisions in this title.

NEW SECTION.  Sec. 3   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Health care services" means health care and healing therapies and methods that are not prohibited by section 4 of this act and that are provided by a person who is not licensed, certified, or registered as a health care practitioner by this state. "Health care services" include, but are not limited to, the use of:
     (a) Natural elements such as air, heat, water, and light;
     (b) Class I or class II medical devices approved by the federal food and drug administration;
     (c) Other medical devices, tools, or procedures that may be nontraditional, unique, or experimental;
     (d) Vitamins, minerals, herbs, natural food products and their extracts, and nutritional supplements;
     (e) Dietary supplements as defined by the federal dietary supplement and health education act of 1994;
     (f) Homeopathic remedies;
     (g) Detoxification practices, including but not limited to sauna, foot baths, baths including the addition of herbs or other substances, colon hydrotherapy, and oxidative therapies; and
     (h) Traditional cultural health care practices.
     (2) "Diagnosis" means an intentional statement that someone has a specific medical condition reflected in the ICD-10 coding scheme or set out in an authoritative textbook relied upon by licensed practitioners of a specific regulated health care discipline.

NEW SECTION.  Sec. 4   Notwithstanding any other provision of law, a person who provides health care services in accordance with this chapter, but who is not licensed, certified, or registered by this state as a health care professional or practitioner, shall not be in violation of a law based on the unlicensed practice of a health profession as defined in RCW 18.120.020(4) unless the person:
     (1) Holds out, states, indicates, advertises, or implies to any person that he or she is a licensed, certified, or registered health care practitioner under the laws of the state;
     (2) Performs surgery or any other procedure that harmfully severs or punctures the tissue of the body, except for finger pricking for screening purposes;
     (3) Prescribes or administers X-ray radiation or any other form of ionizing radiation to any person;
     (4) Prescribes or dispenses corrective vision lenses or prescribes or administers vision therapy;
     (5) Prescribes or administers a legend drug or controlled substance that state or federal law requires be prescribed or dispensed to the end user exclusively by a licensed, certified, or registered health care practitioner;
     (6) Performs a chiropractic adjustment of the articulations of joints or the spine;
     (7) Provides deep stroking of the muscle tissue of the human body, or represents that a practice is massage therapy;
     (8) Sets fractures;
     (9) Performs a health care service that is specifically described as the exclusive purview of the licensed practitioner in the individual practice acts of health professions as defined in RCW 18.120.020(4) and is included in the curriculum of the profession's required educational programs, and is routinely practiced by members of that profession, provided that it does not fall under any exception in this chapter and is not routinely performed by laymen as self-care;
     (10) Provides an initial diagnosis; or
     (11) Diagnoses and treats a physical or mental condition of any person that causes an individual serious physical or mental harm or causes imminent and significant risk of physical or mental injury, under the circumstances in which the health care practitioner knew, or in the exercise of reasonable care should have known, would result in such injury. Such injury or risk of injury must be proven by clear and convincing evidence.

NEW SECTION.  Sec. 5   (1) Any person providing health care services who is not licensed, certified, or registered by this state and who is advertising or charging a fee for health care services, shall, prior to providing such services on a fee basis, disclose to the individual, a written statement with the following provisions:
     (a) A statement that the practitioner is not a state licensed, certified, or registered practitioner;
     (b) The practitioner's name, business address, and telephone number;
     (c) The nature of the health care services available;
     (d) The highest academic degree or credential obtained by the practitioner, the field of study or credential and the name of the institution from which it was obtained.
     (2) A written copy of this statement must be posted in a prominent location in the office or treatment location of the practitioner providing the service in at least a twelve-pitch font size, or shall be incorporated in other written materials provided to the clients if the practitioner does not physically meet with them in a fixed business location. Reasonable accommodations shall be made for those clients who cannot read or who have communication impairments and those who do not read or speak English or the language of the providing practitioner.
     (3) The practitioner must also obtain informed consent prior to providing services.

NEW SECTION.  Sec. 6   (1)(a) The legislature finds that the practices covered by this chapter are matters vitally affecting the public interest for the purpose of applying the consumer protection act, chapter 19.86 RCW. A violation of this chapter is not reasonable in relation to the development and preservation of business and is an unfair or deceptive act in trade or commerce and an unfair method of competition for the purpose of applying the consumer protection act, chapter 19.86 RCW.
     (b) The attorney general may bring an action to obtain a cease and desist order against a practitioner for a violation. In any proceeding under this chapter, the attorney general bears the burden of proof and must meet that burden with clear and convincing evidence. However, before enforcement proceedings may commence, good faith mediation must be utilized by the state in an attempt to bring a practitioner into voluntary compliance with this section.
     (2) Notwithstanding state laws that define the unlicensed practice of a health profession as defined in RCW 18.120.020(4), any alternative or complementary health care services that are being provided or practitioners that are providing services in compliance with this chapter are outside the scope and jurisdiction of the professional quality assurance commissions or regulatory boards and the uniform disciplinary act under chapter 18.130 RCW.

NEW SECTION.  Sec. 7   Any pending investigations or disciplinary actions that could not be brought under the provisions of this chapter shall be dismissed within thirty days of the effective date of this act. Any disciplinary sanctions that have been imposed in pending or final actions that could not be brought under the provisions of this chapter, are revoked and must be expunged within sixty days of the effective date of this act without application by the health care practitioner. All fines or costs collected shall be refunded.

NEW SECTION.  Sec. 8   This act does not prevent any health care professional who is licensed, certified, or registered by this state, from providing health care services under this chapter.

NEW SECTION.  Sec. 9   Sections 1 through 8 of this act constitute a new chapter in Title 18 RCW.