H-4499.2  _______________________________________________

                 SECOND SUBSTITUTE HOUSE BILL 1618

          _______________________________________________

State of Washington      55th Legislature     1998 Regular Session

By House Committee on Health Care (originally sponsored by Representatives Skinner, Dyer, Conway, Zellinsky, Cody, Backlund, Parlette and Clements)

Read first time 01/22/98.  Referred to Committee on .

Modifying certain aspects of programs that treat impaired physicians.

    AN ACT Relating to treatment programs for impaired physicians; amending RCW 18.71.0195, 18.71.300, 18.71.310, 18.71.320, 18.71.330, 18.71.340, 18.130.070, 18.130.080, 18.130.175, and 18.130.300; adding a new section to chapter 18.71 RCW; adding a new section to chapter 18.57 RCW; and creating a new section.

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

NEW SECTION. Sec. 1.  The legislature finds that the self-imposed license surcharge on physician licenses to fund a program to help physicians with chemical dependency or mental illness is not being fully spent on that program.  It is the intent of the legislature that the program be fully funded and that funds collected into the impaired physician account be spent only on the program.

    Sec. 2.  RCW 18.71.0195 and 1994 sp.s. c 9 s 328 are each amended to read as follows:

    (1) The contents of any report file under RCW 18.130.070 shall be confidential and exempt from public disclosure pursuant to chapter 42.17 RCW, except that it may be reviewed (a) by the licensee involved or his or her counsel or authorized representative who may submit any additional exculpatory or explanatory statements or other information, which statements or other information shall be included in the file, or (b) by a representative of the commission, or investigator thereof, who has been assigned to review the activities of a licensed physician.

    Upon a determination that a report is without merit, the commission's records may be purged of information relating to the report.

    (2) Every individual, medical association, medical society, hospital, medical service bureau, health insurance carrier or agent, professional liability insurance carrier, professional standards review organization, ((and)) agency of the federal, state, or local government ((shall be)), or the entity established by RCW 18.71.300 and its officers, agents, and employees are immune from civil liability, whether direct or derivative, for providing information to the commission under RCW 18.130.070, or for which an individual health care provider has immunity under the provisions of RCW 4.24.240, 4.24.250, or 4.24.260.

    Sec. 3.  RCW 18.71.300 and 1994 sp.s. c 9 s 329 are each amended to read as follows:

    ((Unless the context clearly requires otherwise,))  The definitions in this section apply throughout RCW 18.71.310 through 18.71.340 unless the context clearly requires otherwise.

    (1) (("Committee")) "Entity" means a nonprofit corporation formed by physicians who have expertise in the areas of ((alcoholism)) alcohol abuse, drug abuse, ((or)) alcoholism, other drug addictions, and mental illness and who broadly represent the physicians of the state and that has been designated to perform any or all of the activities set forth in RCW 18.71.310(1) ((pursuant to rules adopted)) by the commission ((under chapter 34.05 RCW)).

    (2) "Impaired" or "impairment" means the ((presence of the diseases of alcoholism, drug abuse, mental illness)) inability to practice medicine with reasonable skill and safety to patients by reason of physical or mental illness including alcohol abuse, drug abuse, alcoholism, other drug addictions, or other debilitating conditions.

    (3) "Impaired physician program" means the program for the prevention, detection, intervention, ((and)) monitoring, and treatment of impaired physicians established by the commission pursuant to RCW 18.71.310(1).

    (4) "Physician" or "practitioner" means a person licensed under this chapter, chapter 18.71A RCW, or a professional licensed under another chapter of Title 18 RCW whose disciplining authority has a contract with the entity for an impaired practitioner program for its license holders.

    (5) "Treatment program" means a plan of care and rehabilitation services provided by those organizations or persons authorized to provide such services to be approved by the commission or entity for impaired physicians taking part in the impaired physician program created by RCW 18.71.310.

    Sec. 4.  RCW 18.71.310 and 1997 c 79 s 2 are each amended to read as follows:

    (1) The commission shall enter into a contract with the ((committee)) entity to implement an impaired physician program.  The commission may enter into a contract with the entity for up to six years in length.  The impaired physician program may include any or all of the following:

    (a) ((Contracting)) Entering into relationships supportive of the impaired physician program with ((providers of)) professionals who provide either evaluation or treatment ((programs)) services, or both;

    (b) Receiving and ((evaluating)) assessing reports of suspected impairment from any source;

    (c) Intervening in cases of verified impairment, or in cases where there is reasonable cause to suspect impairment;

    (d) Upon reasonable cause, referring suspected or verified impaired physicians ((to)) for evaluation or treatment ((programs));

    (e) Monitoring the treatment and rehabilitation of impaired physicians including those ordered by the commission;

    (f) Providing ((post-treatment)) monitoring and continuing treatment and rehabilitative support of ((rehabilitative impaired)) physicians;

    (g) Performing such other activities as agreed upon by the commission and the ((committee)) entity; and

    (h) Providing prevention and education services.

    (2) A contract entered into under subsection (1) of this section shall be financed by a surcharge of ((up to)) twenty-five dollars per year on each license renewal or issuance of a new license to be collected by the department of health from every physician ((and surgeon)) licensed under this chapter, or a physician assistant licensed under chapter 18.71A RCW, in addition to other license fees.  These moneys shall be placed in the ((health professions)) impaired physician account to be used solely for the implementation of the impaired physician program.

    Sec. 5.  RCW 18.71.320 and 1994 sp.s. c 9 s 331 are each amended to read as follows:

    The ((committee)) entity shall develop procedures in consultation with the commission for:

    (1) Periodic reporting of statistical information regarding impaired physician activity;

    (2) Periodic disclosure and joint review of such information as the commission may deem appropriate regarding reports received, contacts or investigations made, and the disposition of each report((:  PROVIDED, That)).  However, the ((committee)) entity shall not disclose any personally identifiable information except as provided in subsections (3) and (4) of this section;

    (3) Immediate reporting to the commission of the name and results of any contact or investigation regarding any suspected or verified impaired physician who is reasonably believed probably to constitute an imminent danger to himself or herself or to the public;

    (4) Reporting to the commission, in a timely fashion, any suspected or verified impaired physician who ((refuses)) fails to cooperate with the ((committee, refuses)) entity, fails to submit to evaluation or treatment, or whose impairment is not substantially alleviated through treatment, ((and)) or who, in the opinion of the ((committee)) entity, is probably unable to practice medicine with reasonable skill and safety((.  However, impairment, in and of itself, shall not give rise to a presumption of the inability to practice medicine with reasonable skill and safety));

    (5) Informing each participant of the impaired physician program of the program procedures, the responsibilities of program participants, and the possible consequences of noncompliance with the program.

    Sec. 6.  RCW 18.71.330 and 1994 sp.s. c 9 s 332 are each amended to read as follows:

    If the commission has reasonable cause to believe that a physician is impaired, the commission shall cause an evaluation of such physician to be conducted by the ((committee)) entity or the ((committee's)) entity's designee or the commission's designee for the purpose of determining if there is an impairment.  The ((committee)) entity or appropriate designee shall report the findings of its evaluation to the commission.

    Sec. 7.  RCW 18.71.340 and 1987 c 416 s 6 are each amended to read as follows:

    All ((committee)) entity records are not subject to disclosure pursuant to chapter 42.17 RCW.

    Sec. 8.  RCW 18.130.070 and 1989 c 373 s 19 are each amended to read as follows:

    (1) The disciplining authority may 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, to report to the disciplining authority any conviction, determination, or finding that a 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 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.  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 disciplinary 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 disciplinary 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) The holder of a license subject to the jurisdiction of this chapter shall report to the disciplining authority any conviction, determination, or finding that the licensee has committed unprofessional conduct or is unable to practice with reasonable skill or safety.  Failure to report within thirty days of notice of the conviction, determination, or finding constitutes grounds for disciplinary action.

    Sec. 9.  RCW 18.130.080 and 1986 c 259 s 5 are each amended to read as follows:

    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.  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. 10.  RCW 18.130.175 and 1993 c 367 s 3 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((:  PROVIDED, That)) or by any other provider approved by the entity established under chapter 18.71 RCW or the medical quality assurance 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.  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 RCW 42.17.250 through 42.17.450, 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 RCW 42.17.250 through 42.17.450 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.

    Sec. 11.  RCW 18.130.300 and 1994 sp.s. c 9 s 605 are each amended to read as follows:

(1) The secretary, members of the boards or commissions, or individuals acting on their behalf are immune from suit in any action, civil or criminal, based on any disciplinary proceedings or other official acts performed in the course of their duties.

(2) A voluntary substance abuse monitoring program or an impaired practitioner program approved by a disciplining authority, or individuals acting on their behalf, are immune from suit in a civil action based on any disciplinary proceedings or other official acts performed in the course of their duties.

NEW SECTION. Sec. 12.  A new section is added to chapter 18.71 RCW to read as follows:

    The impaired physician account is created in the custody of the state treasurer.  All receipts from RCW 18.71.310 from license surcharges on physicians and physician assistants shall be deposited into the account.  Expenditures from the account may only be used for the impaired physician program under this chapter.  Only the secretary of health or the secretary's designee may authorize expenditures from the account.  No appropriation is required for expenditures from this account.

NEW SECTION. Sec. 13.  A new section is added to chapter 18.57 RCW to read as follows:

    The board may assess an additional fee of up to twenty-five dollars on each licensee solely for physician assistants participating in a physician health program.

NEW SECTION. Sec. 14.  If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

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