[atlas:bill]

AN ACT Relating to use of integrative, complementary, and alternative medicine; amending RCW 18.57.001, 18.71.010, 18.71.015, 18.130.050, 18.130.060, and 18.130.180; adding a new section to chapter 18.57 RCW; adding a new section to chapter 18.71 RCW; adding new sections 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 is aware that an increasing and significant number of Washington residents are seeking integrative, complementary, and alternative therapies in their health care. The legislature further recognizes that physicians and osteopathic physicians and surgeons are increasingly incorporating such therapies into their own practices. The legislature recognizes that innovative practices that could benefit patients and improve care should be given reasonable and responsible degrees of latitude to practice medicine using conventional, integrative, complementary, and alternative therapies. The legislature finds that abusive criticism of alternative practitioners and threats to their licensure solely because they offer their patients an integrated practice should not be tolerated. Within guidelines which ensure informed consent, all physicians and osteopathic physicians and surgeons have the right to use any conventional, integrative, complementary or alternative treatment they determine appropriate to achieve the best therapeutic outcome. The legislature also finds that patients, when informed of all of their options and choices, have the right to be treated by a qualified physician or osteopathic physician and surgeon who is licensed to practice medicine for any health problem or illness with any conventional, integrative, complementary, or alternative treatment.

Sec. 2. RCW 18.57.001 and 1996 c 178 s 2 are each amended to read as follows:

As used in this chapter:

(1) "Board" means the Washington state board of osteopathic medicine and surgery;

(2) "Department" means the department of health;

(3) "Secretary" means the secretary of health; ((~~and~~))

(4) "Osteopathic medicine and surgery" means the use of any and all methods in the treatment of disease, injuries, deformities, and all other physical and mental conditions in and of human beings, including the use of osteopathic manipulative therapy;

(5) "Integrative, complementary, and alternative medicine" means the methods of diagnosis, treatment, or interventions that are not acknowledged to be conventional but that may be offered by some licensed osteopathic physicians and surgeons in addition to, or as an alternative to, conventional medicine, and that provide a reasonable potential to protect, strengthen, or heal the body or otherwise make therapeutic gains in a patient's health or medical condition and that are not reasonably outweighed by the risk of such methods; and

(6) "Conventional medicine" means those methods of diagnosis, treatment, or interventions that are offered by most licensed osteopathic physicians and surgeons as generally accepted methods of routine practice, based upon medical training, experience, and review of the peer reviewed scientific literature.

Sec. 3. RCW 18.71.010 and 1994 sp.s. c 9 s 302 are each amended to read as follows:

The following terms used in this chapter shall have the meanings set forth in this section unless the context clearly indicates otherwise:

(1) "Commission" means the Washington state medical quality assurance commission.

(2) "Secretary" means the secretary of health.

(3) "Resident physician" means an individual who has graduated from a school of medicine which meets the requirements set forth in RCW 18.71.055 and is serving a period of postgraduate clinical medical training sponsored by a college or university in this state or by a hospital accredited by this state. For purposes of this chapter, the term shall include individuals designated as intern or medical fellow.

(4) "Emergency medical care" or "emergency medical service" has the same meaning as in chapter 18.73 RCW.

(5) "Integrative, complementary, and alternative medicine" means the methods of diagnosis, treatment, or interventions that are not acknowledged to be conventional but that may be offered by some licensed physicians in addition to, or as an alternative to, conventional medicine, and that provide a reasonable potential to protect, strengthen, or heal the body or otherwise make therapeutic gains in a patient's health or medical condition and that are not reasonably outweighed by the risk of such methods.

(6) "Conventional medicine" means those methods of diagnosis, treatment, or interventions that are offered by most licensed physicians as generally accepted methods of routine practice, based upon medical training, experience, and review of the peer reviewed scientific literature.

Sec. 4. RCW 18.71.015 and 1999 c 366 s 4 are each amended to read as follows:

The Washington state medical quality assurance commission is established, consisting of thirteen individuals licensed to practice medicine in the state of Washington under this chapter, at least two of whom shall be physicians, a significant portion of whose practices includes integrative, complementary, and alternative medicine, two individuals who are licensed as physician assistants under chapter 18.71A RCW, and four individuals who are members of the public, at least two of whom are consumers of integrative, complementary, and alternative medicine. Each congressional district now existing or hereafter created in the state must be represented by at least one physician member of the commission. The terms of office of members of the commission are not affected by changes in congressional district boundaries. Public members of the commission may not be a member of any other health care licensing board or commission, or have a fiduciary obligation to a facility rendering health services regulated by the commission, or have a material or financial interest in the rendering of health services regulated by the commission.

The members of the commission shall be appointed by the governor. Members of the initial commission may be appointed to staggered terms of one to four years, and thereafter all terms of appointment shall be for four years. The governor shall consider such physician and physician assistant members who are recommended for appointment by the appropriate professional associations in the state. In appointing the initial members of the commission, it is the intent of the legislature that, to the extent possible, the existing members of the board of medical examiners and medical disciplinary board repealed under section 336, chapter 9, Laws of 1994 sp. sess. be appointed to the commission. No member may serve more than two consecutive full terms. Each member shall hold office until a successor is appointed.

Each member of the commission must be a citizen of the United States, must be an actual resident of this state, and, if a physician, must have been licensed to practice medicine in this state for at least five years.

The commission shall meet as soon as practicable after appointment and elect officers each year. Meetings shall be held at least four times a year and at such place as the commission determines and at such other times and places as the commission deems necessary. A majority of the commission members appointed and serving constitutes a quorum for the transaction of commission business.

The affirmative vote of a majority of a quorum of the commission is required to carry any motion or resolution, to adopt any rule, or to pass any measure of ordinary business of the commission except for the revocation of a physician's license. Except for revoking a physician's license, the commission may appoint panels consisting of at least three members. A quorum for the transaction of any other business by a panel is a minimum of three members. A majority vote of a quorum of the panel is required to transact business delegated to it by the commission, with the exception of revocation of a physician's license. The commission shall utilize a panel consisting of all regular members of the commission when considering revocation of a physician's license. In order to revoke a physician's license, a majority of the thirteen regularly appointed commission members must concur with the decision to revoke.

Each member of the commission shall be compensated in accordance with RCW 43.03.265 and in addition thereto shall be reimbursed for travel expenses incurred in carrying out the duties of the commission in accordance with RCW 43.03.050 and 43.03.060. Any such expenses shall be paid from funds appropriated to the department of health.

Whenever the governor is satisfied that a member of a commission has been guilty of neglect of duty, misconduct, or malfeasance or misfeasance in office, the governor shall file with the secretary of state a statement of the causes for and the order of removal from office, and the secretary shall forthwith send a certified copy of the statement of causes and order of removal to the last known post office address of the member.

Vacancies in the membership of the commission shall be filled for the unexpired term by appointment by the governor within sixty days after the vacancy occurs.

The members of the commission are immune from suit in an action, civil or criminal, based on its disciplinary proceedings or other official acts performed in good faith as members of the commission.

Whenever the workload of the commission requires, the commission may request that the secretary appoint pro tempore members of the commission. When serving, pro tempore members of the commission have all of the powers, duties, and immunities, and are entitled to all of the emoluments, including travel expenses, of regularly appointed members of the commission, except that pro tempore members shall not participate in license revocation decisions.

NEW SECTION. Sec. 5. A new section is added to chapter 18.57 RCW to read as follows:

The board shall use the following guidelines to determine whether an osteopathic physician and surgeon's conduct violates the practice of medicine or RCW 18.130.180(4):

(1) Prior to offering advice about integrative, complementary, and alternative medicine, the osteopathic physician and surgeon shall undertake an assessment of the patient. This assessment shall include but not be limited to conventional methods of diagnosis and may include nonconventional methods of diagnosis, and shall be documented in the patient's chart. Such assessment shall include the following:

(a) Adequate assessment of the patient's pertinent medical history and medical records;

(b) Documentation as to whether conventional medical treatment options have been discussed with the patient, including substances or materials to be used and possible or probable side effects, and referral input if necessary;

(c) Documentation as to whether conventional medical options have been tried, and if so, to what effect, or a statement as to whether conventional options have been refused by the patient;

(d) If a treatment is offered which is not considered to be conventional, documentation of at least a verbal and written informed consent for each treatment plan must be included, including documentation that the risks and benefits of the use of the treatment were discussed with the patient or guardian, including substances or materials to be used and possible or probable side effects, and referral input if necessary;

(e) Documentation as to whether the integrative, complementary, or alternative medicine could interfere with any other ongoing conventional treatment.

(2) The osteopathic physician and surgeon may offer the patient integrative, complementary, or alternative medicine pursuant to a documented treatment plan tailored for the individual needs of the patient by which treatment progress or success can be evaluated with stated objectives such as pain relief or improved physical or psychosocial function. Such a documented treatment plan shall consider pertinent medical history, previous medical records and physical examination, as well as the need for further testing, consultations, referrals, or the use of other treatment modalities.

(3) The osteopathic physician and surgeon may use the integrative, complementary, or alternative medicine subject to documented periodic review of the patient's care by the osteopathic physician and surgeon at reasonable intervals in view of the individual circumstances of the patient in regard to progress toward reaching treatment objectives which takes into consideration the treatment prescribed, ordered, or administered, as well as any new information about the etiology of the complaint.

(4) The osteopathic physician and surgeon shall keep complete and accurate records of the care provided including the assessment information in subsection (1) of this section.

(5) When considering unprofessional conduct, the board must consider whether alternative methods have a safety risk for the patient that is unreasonably greater than the conventional treatment for the patient's medical conditions. The act of not using, or the absence of the use of, a conventional treatment alone shall not establish unprofessional conduct if the osteopathic physician and surgeon has complied with this chapter.

(6) If the requirements set out in subsections (1) through (4) of this section are met, and if all treatment is properly documented, the board shall presume such practices are in conformity with the practice of medicine and not in conflict with RCW 18.130.180(4).

NEW SECTION. Sec. 6. A new section is added to chapter 18.71 RCW to read as follows:

The commission shall use the following guidelines to determine whether a physician's conduct violates the practice of medicine or RCW 18.130.180(4):

(1) Prior to offering advice about integrative, complementary, and alternative medicine, the physician shall undertake an assessment of the patient. This assessment shall include but not be limited to conventional methods of diagnosis and may include nonconventional methods of diagnosis, and shall be documented in the patient's chart. Such assessment shall include the following:

(a) Adequate assessment of the patient's pertinent medical history and medical records;

(c) Documentation as to whether conventional medical options have been tried, and if so, to what effect, or a statement as to whether conventional options have been refused by the patient;

(e) Documentation as to whether the integrative, complementary, or alternative medicine could interfere with any other ongoing conventional treatment.

(2) The physician may offer the patient integrative, complementary, or alternative medicine pursuant to a documented treatment plan tailored for the individual needs of the patient by which treatment progress or success can be evaluated with stated objectives such as pain relief or improved physical or psychosocial function. Such a documented treatment plan shall consider pertinent medical history, previous medical records and physical examination, as well as the need for further testing, consultations, referrals, or the use of other treatment modalities.

(3) The physician may use the integrative, complementary, or alternative medicine subject to documented periodic review of the patient's care by the physician at reasonable intervals in view of the individual circumstances of the patient in regard to progress toward reaching treatment objectives which takes into consideration the treatment prescribed, ordered, or administered, as well as any new information about the etiology of the complaint.

(4) The physician shall keep complete and accurate records of the care provided including the assessment information in subsection (1) of this section.

(5) When considering unprofessional conduct, the commission must consider whether alternative methods have a safety risk for the patient that is unreasonably greater than the conventional treatment for the patient's medical conditions. The act of not using, or the absence of the use of, a conventional treatment alone shall not establish unprofessional conduct if the physician has complied with this chapter.

(6) If the requirements set out in subsections (1) through (4) of this section are met, and if all treatment is properly documented, the commission shall presume such practices are in conformity with the practice of medicine and not in conflict with RCW 18.130.180(4).

Sec. 7. 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 practice pending proceedings by the disciplining authority;

(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, other than those related to an order to revoke a physician's license;

(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).

NEW SECTION. Sec. 8. A new section is added to chapter 18.130 RCW to read as follows:

A license holder subject to a final decision regarding disposition of his or her license may appeal the decision to the superior court.

NEW SECTION. Sec. 9. A new section is added to chapter 18.130 RCW to read as follows:

The disciplinary authorities under chapters 18.57 and 18.71 RCW have the authority to adopt standards of professional conduct or practice for conventional, integrative, complementary, and alternative medicine as defined in RCW 18.57.001 and 18.71.010.

Sec. 10. RCW 18.130.060 and 1995 c 336 s 5 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 not more than three pro tem members for the purpose of participating as members of one or more committees 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. 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, except that pro tem members may not participate in the revocation of a physician's license. The chairperson of a committee shall be a regular member of the board appointed by the board chairperson. Committees 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 committees 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 committees may make interim orders and issue final decisions with respect to matters and cases delegated to the committee 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).

Sec. 11. 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)(a) 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 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.

(b) For osteopathic physicians and surgeons under chapter 18.57 RCW and physicians under chapter 18.71 RCW, the use of integrative, complementary, and alternative medicine as defined in RCW 18.71.010 by itself shall not constitute unprofessional conduct, unless it can be demonstrated that such method has a safety risk for the patient that is unreasonably greater than the conventional treatment for the patient's medical conditions. The act of not using, or the absence of the use of, a conventional treatment alone shall not establish unprofessional conduct if the osteopathic physician and surgeon has complied with chapter 18.57 RCW or the physician has complied with chapter 18.71 RCW;

(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

(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.