2326-S AMH CAMP BLAC 070

SHB 2326 - H AMD

By Representative Campbell

Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. The uniform disciplinary act provides a uniform process for addressing acts of unprofessional conduct affecting fifty-seven health professions regulated by the state. The disciplinary authorities include the secretary of health and sixteen boards and commissions charged with protecting the health and safety of patients from unprofessional conduct. It is recognized nationally as a model law and has worked well over time to provide uniformity and efficiency to the disciplinary process.

The legislature finds that it is necessary to further streamline the disciplinary process and ensure more equitable case dispositions among health care providers. An efficient division of responsibilities between the secretary of health with authority over most preliminary complaint investigations and charging decisions allows the health professionals sitting on the boards and commissions to retain the final authority on issuing findings and sanctions. These measures will ensure that investigations and charging decisions are free of any potential conflicts of interest and that sanctions are uniform across professional lines.

The legislature further finds that this act does not intend to change or modify, in any way, the relationship as it exists on the effective date of this section between boards and commissions and contractors providing services to impaired providers.

Sec. 2. 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)) provide consultation and assistance with investigations of complaints or reports of unprofessional conduct as defined in this chapter ((and)) as requested by the secretary. If the secretary determines that the complaint involves standards of practice or that clinical expertise is necessary, the secretary shall assure that the board or commission is actively involved in the investigation;

(3) To hold hearings as provided in this chapter;

(((3))) (4) To issue subpoenas and administer oaths in connection with any investigation, hearing, or proceeding held under this chapter;

(((4))) (5) 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))) (6) To compel attendance of witnesses at hearings;

(((6))) (7) In the course of ((investigating)) consulting and assisting with the investigation of a complaint or report of unprofessional conduct, to conduct practice reviews as requested by the secretary;

(((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)) provide consultation and assistance with investigations as requested by the secretary. 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;

(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).

Sec. 3. RCW 18.130.060 and 2001 c 101 s 1 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 pro tem members to participate as members of a panel 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. Pro tem members appointed for matters under this chapter are appointed for a term of no more than one year. No pro tem member may serve more than four one-year terms. 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. The chairperson of a panel shall be a regular member of the board appointed by the board chairperson. Panels 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 or commission. The authority to act through panels 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 panels may ((make interim orders and)) issue final orders and decisions with respect to matters and cases delegated to the panel 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)). The secretary may request the consultation and assistance of the appropriate disciplining authority, and where standards of practice or clinical expertise is necessary, the secretary shall assure that the board or commission is actively involved in the investigation;

(5) To review results of investigations conducted under this chapter and determine the appropriate disposition, which may include closure, notice of correction, stipulations permitted by RCW 18.130.172, or issuance of a statement of charges;

(6) To take emergency action ordering summary suspension of a license, or restriction or limitation of the license holder's practice pending proceedings by the disciplining authority;

(7) 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. 4. RCW 18.130.080 and 1998 c 132 s 9 are each amended to read as follows:

A person, including but not limited to consumers, ((licensees)) license holders, 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)) secretary charging a license holder or applicant with unprofessional conduct and specifying the grounds therefor or to report information to the ((disciplining authority)) secretary, 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)) secretary determines that the complaint merits investigation, or if the ((disciplining authority)) secretary has reason to believe, without a formal complaint, that a license holder or applicant may have engaged in unprofessional conduct, the ((disciplining authority)) secretary 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. 5. RCW 18.130.090 and 1993 c 367 s 1 are each amended to read as follows:

(1) If the ((disciplining authority)) secretary determines, upon investigation, that there is reason to believe a violation of RCW 18.130.180 has occurred, a statement of charge or charges shall be prepared and served upon the license holder or applicant at the earliest practical time. The statement of charge or charges shall be accompanied by a notice that the license holder or applicant may request a hearing to contest the charge or charges. The license holder or applicant must file a request for hearing with the disciplining authority within twenty days after being served the statement of charges. If the twenty-day limit results in a hardship upon the license holder or applicant, he or she may request for good cause an extension not to exceed sixty additional days. If the disciplining authority finds that there is good cause, it shall grant the extension. The failure to request a hearing constitutes a default, whereupon the disciplining authority may enter a decision on the basis of the facts available to it.

(2) If a hearing is requested, the time of the hearing shall be fixed by the disciplining authority as soon as convenient, but the hearing shall not be held earlier than thirty days after service of the charges upon the license holder or applicant.

Sec. 6. RCW 18.130.160 and 2001 c 195 s 1 are each amended to read as follows:

Upon a finding, after hearing, that a license holder or applicant has committed unprofessional conduct or is unable to practice with reasonable skill and safety due to a physical or mental condition, the disciplining authority may issue an order providing for one or any combination of the following:

(1) Revocation of the license;

(2) Suspension of the license for a fixed or indefinite term;

(3) Restriction or limitation of the practice;

(4) Requiring the satisfactory completion of a specific program of remedial education or treatment;

(5) The monitoring of the practice by a supervisor approved by the disciplining authority;

(6) Censure or reprimand;

(7) Compliance with conditions of probation for a designated period of time;

(8) Payment of a fine for each violation of this chapter, not to exceed five thousand dollars per violation. Funds received shall be placed in the health professions account;

(9) Denial of the license request;

(10) Corrective action;

(11) Refund of fees billed to and collected from the consumer;

(12) A surrender of the practitioner's license in lieu of other sanctions, which must be reported to the federal data bank.

Except as otherwise provided in section 9 of this act, any of the actions under this section may be totally or partly stayed by the disciplining authority. In determining what action is appropriate, the disciplining authority must first consider what sanctions are necessary to protect or compensate the public. Only after such provisions have been made may the disciplining authority consider and include in the order requirements designed to rehabilitate the license holder or applicant. All costs associated with compliance with orders issued under this section are the obligation of the license holder or applicant.

The licensee or applicant may enter into a stipulated disposition of charges that includes one or more of the sanctions of this section, but only after a statement of charges has been issued and the licensee has been afforded the opportunity for a hearing and has elected on the record to forego such a hearing. The stipulation shall either contain one or more specific findings of unprofessional conduct or inability to practice, or a statement by the licensee acknowledging that evidence is sufficient to justify one or more specified findings of unprofessional conduct or inability to practice. The stipulation entered into pursuant to this subsection shall be considered formal disciplinary action for all purposes.

Sec. 7. RCW 18.130.170 and 1995 c 336 s 8 are each amended to read as follows:

(1) If the ((disciplining authority)) secretary believes a license holder or applicant 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)) secretary shall be served on the license holder or applicant 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 or applicant to practice with reasonable skill and safety. If the disciplining authority determines that the license holder or applicant 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 or applicant may be unable to practice with reasonable skill or safety by reason of any mental or physical condition, the ((disciplining authority)) secretary may require a license holder or applicant to submit to a mental or physical examination by one or more licensed or certified health professionals designated by the ((disciplining authority)) secretary. The license holder or applicant shall be provided written notice of the ((disciplining authority's)) secretary'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)) secretary's concern that the license holder or applicant 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 or applicant has the right to respond in writing within twenty days to challenge the ((disciplining authority's)) secretary'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 or applicant timely responds to the notice of intent, then the license holder or applicant 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 or applicant 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 applicant 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 or applicant 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)) secretary of the written decision, or upon the failure of the license holder or applicant to timely respond to the notice of intent, the ((disciplining authority)) secretary may issue an order requiring the license holder or applicant 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 or applicant to practice with reasonable skill and safety. An order of the ((disciplining authority)) secretary requiring the license holder or applicant 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)) secretary shall be paid out of the health professions account. In addition to any examinations ordered by the ((disciplining authority)) secretary, the licensee may submit physical or mental examination reports from licensed or certified health professionals of the license holder's or applicant's choosing and expense.

(d) If the disciplining authority finds that a license holder or applicant 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 or applicant has had the notice and opportunity to challenge the ((disciplining authority's)) secretary'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 applicant 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 or applicant complies with the properly ordered mental or physical examination.

(e) Nothing in this section shall restrict the power of ((a disciplining authority)) the secretary to act in an emergency under RCW 34.05.422(4), 34.05.479, and ((18.130.050(7))) 18.130.060(6).

(f) A determination by a court of competent jurisdiction that a license holder or applicant is mentally incompetent or mentally ill is presumptive evidence of the license holder's or applicant'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, an applicant or 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)) secretary 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)) secretary on the ground that the testimony or reports constitute privileged communications.

Sec. 8. RCW 18.130.172 and 2000 c 171 s 29 are each amended to read as follows:

(1) Except for those acts of unprofessional conduct specified in section 9 of this act, prior to serving a statement of charges under RCW 18.130.090 or 18.130.170, the ((disciplinary authority)) secretary may furnish a statement of allegations to the licensee or applicant 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)) secretary and the applicant or 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 applicant or 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; an acknowledgement 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 or applicant 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 or applicant may agree to reimburse the ((disciplinary authority)) secretary 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)) secretary 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 or applicant declines to agree to disposition of the charges by means of a stipulation pursuant to subsection (2) of this section, the ((disciplinary authority)) secretary 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 or applicant and the ((disciplinary authority)) secretary, 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)) secretary. Should the licensee or applicant fail to pay any agreed reimbursement within thirty days of the date specified in the stipulation for payment, the ((disciplinary authority)) secretary may seek collection of the amount agreed to be paid in the same manner as enforcement of a fine under RCW 18.130.165.

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

(1) The disciplining authority shall revoke the license of a license holder who is found to have committed three acts of unprofessional conduct from the following list in any combination within a ten-year period:

(a) Any act defined in RCW 18.130.180(4) that causes or substantially contributes to the death of or severe injury to a patient or creates a significant risk of harm to the public;

(b) Any act defined in RCW 18.130.180(6);

(c) Any act defined in RCW 18.130.180(7) that causes or substantially contributes to the death of or severe injury to a patient or creates a significant risk of harm to the public;

(d) Any act defined in RCW 18.130.180(17);

(e) Any act defined in RCW 18.130.180(23) that causes or substantially contributes to the death of or severe injury to a patient or creates a significant risk of harm to the public;

(f) Any act of abuse to a client or patient as defined in RCW 18.130.180(24); and

(g) Any sexual contact with a client or patient as defined in RCW 18.130.180(24).

(2) For purposes of determining whether a license holder is found to have committed three acts of unprofessional conduct for purposes of this section:

(a) Under subsection (1)(g) of this section, one or more acts with one patient or client that are charged as part of one statement of charges shall be considered one act of unprofessional conduct; and

(b) Under all other paragraphs of subsection (1) of this section, each incident of unprofessional conduct shall be considered one act of unprofessional conduct.

(3) A finding of mitigating circumstance for an act of unprofessional conduct may be issued and, except for (a) of this subsection, applied one time for any license holder or applicant for a license, and if so, that finding of unprofessional conduct shall not count as one of the three that triggers a license revocation for purposes of this section. A finding of mitigating circumstances under (a) of this subsection may be issued and applied as many times as the license holder meets the criteria for such a finding and shall not count as one of the three findings that triggers the revocation of a license for the purposes of this section. Except for (a) of this subsection, after a finding of mitigating circumstances is issued and applied, no subsequent findings under this section may consider any mitigating circumstances. The following mitigating circumstances may be considered:

(a) For subsection (1)(a) of this section, the act involved a high-risk procedure, there was no lower-risk alternative to that procedure, the patient was informed of the risks of the procedure and consented to it anyway, and prior to the institution of disciplinary actions the license holder took appropriate remedial measures;

(b) There is a strong potential for rehabilitation of the license holder; or

(4) Nothing in this section limits the authority of the disciplining authority to revoke a license or take other disciplinary action when the license holder has committed only one or two acts of unprofessional conduct instead of three."

EFFECT: Eliminates the requirement that the Secretary of Health consult with the disciplining authority for matters pertaining to standards of practice or where clinical expertise are necessary. Requires that the Secretary of Health assure that health professions boards and commissions be actively involved in investigations pertaining to standards of practice or where clinical expertise are required. Specifies that one or more acts of sexual misconduct with the same patient or client that is charged as part of a single statement of charges is considered one act of unprofessional conduct for purposes of revoking a health care provider's license under the three strikes provisions. Allows the mitigating factor relating to high-risk procedures to be applied more than once.