2834-S.E AMS HEA S5054.1

ESHB 2834 - S COMM AMD

By Committee on Health & Long-Term Care

Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. The legislature finds that:

(1) The protection of the health and safety of the people of Washington state is a paramount responsibility entrusted to the state. One of the means for achieving such protection is through regulation of health professionals and effective discipline of those health care professionals who engage in unprofessional conduct. The vast majority of health professionals are dedicated to their profession, and provide quality services to those in their care. However, effective mechanisms are needed to ensure that the small minority of health professionals who engage in unprofessional conduct are reported and disciplined in a timely and effective manner.

(2) Jurisdiction for health professions disciplinary processes is divided between the secretary of health and fourteen independent boards and commissions. While the presence of a board or commission consisting of members of the profession that they regulate may add value to some steps of the disciplinary process, in other instances their involvement may be unnecessary, or even an impediment, to safeguarding the public's health and safety. It is in the interests of both public health and safety and credentialed health care professionals that the health professions disciplinary system operate effectively and appropriately.

NEW SECTION. Sec. 2. (1) The task force on improvement of health professions discipline is established. The governor must appoint its members, and shall include:

(a) A representative of a medicare contracted professional review organization in Washington state;

(b) One or more representatives of the University of Washington school of health sciences or school of public health with expertise in health professions regulation;

(c) A representative of the foundation for health care quality;

(d) Four representatives of a broad range of different types of health care professionals, including one physician, none of whom currently serve, or have served in the past, on a health professions disciplinary board or commission;

(e) A representative of hospital-based coordinated quality improvement programs under RCW 70.41.200;

(f) A representative of a hospital peer review committee;

(g) The secretary of the department of health or the secretary's designee;

(h) A representative of the superior court judges association;

(i) A representative of the Washington state bar association who is an attorney with expertise in defending health professionals in health professions disciplinary proceedings in Washington;

(j) A representative of health care consumers, who does not currently serve and has not in the past served, on a health professions disciplinary board or commission;

(k) The attorney general or his or her designee; and

(l) Three members of the public, one of whom is a current or former public member of a disciplining authority included in chapter 18.130 RCW.

(2) The task force shall conduct an independent review of the funding of the health professions identified in RCW 18.130.040 and the allocation of resources to ensure equitable and consistent outcomes for all professions in the conduct of activities authorized under the uniform disciplinary act, chapter 18.130 RCW. The task force shall review all phases of the current health professions disciplinary process, from report intake through final case closure, and shall, at a minimum, examine and address the following issues:

(a) The ability of the disciplining authorities identified in RCW 18.130.040 to effectively safeguard the public from potentially harmful health care practitioners by timely case disposition while also ensuring the due process rights of credentialed health care practitioners;

(b) The feasibility of developing a uniform performance measurement system for health professions discipline;

(c) Whether there are components to the current health professions discipline system that serve as impediments to improving the quality of health professions discipline, including consideration of:

(i) The value of boards and commissions in the health professions disciplinary process; and

(ii) The respective roles of the secretary and boards and commissions in health professions disciplinary functions;

(d) The feasibility of allowing law enforcement agencies to share information from criminal investigations of credentialed health care providers regardless of whether the provider was not ultimately convicted;

(e) The extent to which investigation, charging, and sanctioning decisions are consistently applied across and within each of the disciplining authorities;

(f) The merits of limiting the public disclosure of certain information related to the health professions disciplinary process including complaint closure without investigation, complaint closure after investigation, and findings after adjudication of no violation of the uniform disciplinary act;

(g) The extent to which sanctions deviate from advisory guidelines regarding sanctions and the circumstances behind those deviations;

(h) Alternative fee structures for health care professionals to simplify funding and the use of those funds across all health care professions;

(i) The feasibility of the secretary of the department of health investigating and making case disposition decisions to ensure disciplinary consistency across and within professions;

(j) The extent to which gathering necessary evidence during investigations is impeded by current statutory constraints;

(k) The feasibility of allowing department of health staff attorneys to serve as attorneys of record in the prosecution of health care practitioners as a means to conserve resources and to expedite the disciplinary process; and

(l) The feasibility of allowing the department of health to freely exchange confidential health care and health care practitioner information with other governmental agencies when necessary in the discharge of the governmental agencies' statutorily mandated activities.

(3) The task force may establish technical advisory committees to assist in its efforts, and shall provide opportunities for interested parties to comment upon the task force's findings and recommendations prior to being finalized.

(4) Staff support to the task force shall be provided by the department of health and the office of financial management.

(5) The task force shall submit its report and recommendations for improvement of health professions discipline to the relevant committees of the legislature and the governor by October 1, 2005.

(6) Nothing in this act limits the secretary of health's authority to modify the internal processes or organizational framework of the department.

(7) Members of the task force shall be reimbursed for travel expenses as provided in RCW 43.03.050 and 43.03.060.

Sec. 3. RCW 4.24.260 and 1994 sp.s. c 9 s 701 are each amended to read as follows:

((Physicians licensed under chapter 18.71 RCW, dentists licensed under chapter 18.32 RCW, and pharmacists licensed under chapter 18.64 RCW)) Any member of a health profession listed under RCW 18.130.040 who, in good faith, makes a report, files charges, or presents evidence against another member of ((their)) a health profession based on the claimed ((incompetency or gross misconduct)) unprofessional conduct as provided in RCW 18.130.180 or inability to practice with reasonable skill and safety to consumers by reason of any physical or mental condition as provided in RCW 18.130.170 of such person before the ((medical quality assurance commission established under chapter 18.71 RCW, in a proceeding under chapter 18.32 RCW, or to the board of pharmacy under RCW 18.64.160)) agency, board, or commission responsible for disciplinary activities for the person's profession under chapter 18.130 RCW, shall be immune from civil action for damages arising out of such activities. A person prevailing upon the good faith defense provided for in this section is entitled to recover expenses and reasonable attorneys' fees incurred in establishing the defense.

Sec. 4. RCW 18.71.0193 and 1994 sp.s. c 9 s 327 are each amended to read as follows:

(1) A ((licensed health care professional)) physician licensed under this chapter shall report to the commission when he or she has personal knowledge that a practicing physician has either committed an act or acts which may constitute statutorily defined unprofessional conduct or that a practicing physician may be unable to practice medicine with reasonable skill and safety to patients by reason of illness, drunkenness, excessive use of drugs, narcotics, chemicals, or any other type of material, or as a result of any mental or physical conditions.

(2) Reporting under this section is not required by:

(a) An appropriately appointed peer review committee member of a licensed hospital or by an appropriately designated professional review committee member of a county or state medical society during the investigative phase of their respective operations if these investigations are completed in a timely manner; or

(b) A treating licensed health care professional of a physician currently involved in a treatment program as long as the physician patient actively participates in the treatment program and the physician patient's impairment does not constitute a clear and present danger to the public health, safety, or welfare.

(3) The commission may impose disciplinary sanctions, including license suspension or revocation, on any ((health care professional subject to the jurisdiction of the commission)) physician licensed under this chapter who has failed to comply with this section.

(4) Every physician licensed under this chapter who reports to the commission as required under subsection (1) of this section in good faith is immune from civil liability for damages arising out of the report, whether direct or derivative. A person prevailing upon the defense provided for in this section is entitled to recover expenses and reasonable attorneys' fees incurred in establishing the defense.

Sec. 5. RCW 18.130.010 and 1994 sp.s. c 9 s 601 are each amended to read as follows:

It is the intent of the legislature to strengthen and consolidate disciplinary and licensure procedures for the licensed health and health-related professions and businesses by providing a uniform disciplinary act with standardized procedures for the licensure of health care professionals and the enforcement of laws the purpose of which is to ((assure the public of the adequacy of professional competence and conduct in the healing arts)) reduce unprofessional conduct and unsafe practices in health care, protect the public health, safety, and welfare, and promote patient safety.

It is also the intent of the legislature that all health and health-related professions newly credentialed by the state come under the Uniform Disciplinary Act.

Further, the legislature declares that the addition of public members on all health care commissions and boards can give both the state and the public, which it has a paramount statutory responsibility to protect, assurances of accountability and confidence in the various practices of health care.

Sec. 6. 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) 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;

(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. Full faith and credit will be extended to the action by the competent authority, even if procedures or standards of proof vary in the other jurisdiction;

(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

(c) Legend drugs;

(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.

Sec. 7. RCW 18.130.900 and 1986 c 259 s 14 are each amended to read as follows:

(1) This chapter shall be known and cited as the uniform disciplinary act.

(2) This chapter applies to any conduct, acts, or conditions occurring on or after June 11, 1986.

(3) This chapter does not apply to or govern the construction of and disciplinary action for any conduct, acts, or conditions occurring prior to June 11, 1986. Such conduct, acts, or conditions must be construed and disciplinary action taken according to the provisions of law existing at the time of the occurrence in the same manner as if this chapter had not been enacted.

(4) The amendments to chapter 18.130 RCW in sections 5 and 6 of this act are clarifying amendments and should not be construed as a change in the construction and application of chapter 18.130 RCW."

ESHB 2834 - S COMM AMD

By Committee on Health & Long-Term Care

On page 1, line 1 of the title, after "discipline;" strike the remainder of the title and insert "amending RCW 4.24.260, 18.71.0193, 18.130.010, 18.130.180, and 18.130.900; and creating new sections."

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