BILL REQ. #:  Z-1118.1 

Read first time 01/22/2004.   Referred to Committee on Health Care.

     AN ACT Relating to health professions disciplinary procedures; amending RCW 18.130.060, 18.130.090, and 18.130.190; adding a new section to chapter 18.130 RCW; and providing an effective date.

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

Sec. 1   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. 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 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;
     (5) To obtain copies of health care information pursuant to RCW 70.02.050(2) that are relevant to a matter under investigation. In the event there is reasonable cause to believe a delay will result in the destruction or alteration of such records, investigators may enter the facility, during normal business hours, where the records are located and immediately make copies of the original records;
     (6) To obtain an administrative investigation warrant in accordance with section 2 of this act in the event it is necessary to obtain physical evidence;
     (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).

NEW SECTION.  Sec. 2   A new section is added to chapter 18.130 RCW to read as follows:
     (1) In the event it is necessary to obtain physical evidence, a judge of a court of competent jurisdiction, and upon proper oath or affirmation showing probable cause, may issue warrants for the purpose of conducting administrative investigations authorized by this chapter, or rules adopted under this chapter, and removal of property appropriate to the investigations. For purposes of the issuance of administrative investigation warrants, probable cause exists upon showing a valid public interest in the effective enforcement of this chapter, or rules adopted under this chapter, sufficient to justify administrative investigation of the area, premises, building, or conveyance in the circumstances specified in the application for the warrant.
     (2) A warrant shall be issued only upon receipt of an affidavit of a designated officer or employee having knowledge of the facts alleged, sworn to before the judge and establishing the grounds for issuing the warrant. If the judge is satisfied that grounds for the application exist or that there is probable cause to believe they exist, the judge shall issue a warrant identifying the area, premises, building, or conveyance to be inspected, the purpose of the investigation, and, if appropriate, the type of property to be inspected, if any. The warrant shall:
     (a) State the grounds for its issuance and the name of each person whose affidavit has been taken in support;
     (b) Be directed to a person authorized by RCW 18.130.060 to execute it;
     (c) Command the person to whom it is directed to inspect the area, premises, building, or conveyance identified for the purpose specified and, if appropriate, direct the seizure of the property specified;
     (d) Identify the item or types of property to be removed, if any; and
     (e) Direct that it be served during normal business hours and designate the judge to whom it shall be returned.
     (3) A warrant issued in accordance with this section must be executed and returned within ten days of its date unless, upon a showing of a need for additional time, the court orders otherwise. If property is removed in accordance with a warrant, a copy shall be given to the person from whom or from whose premises the property is taken, together with a receipt for the property taken. The return of the warrant shall be made promptly, accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the person executing the warrant and of the person from whose possession or premises the property was taken, if present, or in the presence of at least one credible person other than the person executing the warrant. A copy of the inventory shall be delivered to the person from whom or from whose premises the property was taken and to the applicant for the warrant.
     (4) The judge who has issued a warrant shall attach a copy of the documents in connection with the warrant and cause them to be filed with the clerk of the court of the county in which the warrant is to be executed.
     (5) In the event consent to entry and removal of property is given, a warrant is not required. A written inventory shall be made and provided as set forth in subsection (3) of this section.

Sec. 3   RCW 18.130.090 and 1993 c 367 s 1 are each amended to read as follows:
     (1) If the disciplining authority 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)) may 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)) an adjudicative proceeding to contest the charge or charges.
     (a) The license holder or applicant must file a request for ((hearing)) an adjudicative proceeding 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.
     (b) The failure to request ((a hearing)) an adjudicative proceeding constitutes a default((, whereupon)). The disciplining authority may then enter a decision on the basis of the facts available to it.
     (2) As an alternative to filing a statement of charge or charges, the disciplining authority may issue to a license holder or applicant a written notice of action imposing any sanction authorized under RCW 18.130.160. The notice shall state the reasons for the action.
     (a) The applicant or license holder has the right to an adjudicative proceeding. If an adjudicative proceeding is requested, the action will be of no effect, other than to identify the allegations and proposed sanctions. The license holder or applicant must file a request for an adjudicative proceeding with the disciplining authority within twenty days after being served the action. 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.
     (b) In the event no request for an adjudicative proceeding is filed within the time allowed by (a) of this subsection, the action becomes effective.
     (3) If ((a hearing)) an adjudicative proceeding is requested, the time of the ((hearing)) adjudicative proceeding shall be fixed by the disciplining authority as soon as convenient, but the ((hearing)) adjudicative proceeding shall not be held earlier than thirty days after service of the charges or notice of action upon the license holder or applicant.

Sec. 4   RCW 18.130.190 and 2003 c 53 s 141 are each amended to read as follows:
     (1) The secretary shall investigate complaints concerning practice by unlicensed persons of a profession or business for which a license is required by the chapters specified in RCW 18.130.040. In the investigation of the complaints, the secretary shall have the same authority as provided the secretary under RCW 18.130.050 and 18.130.060.
     (2) The secretary may issue a notice of intention to issue a cease and desist order to any person whom the secretary has reason to believe is engaged in the unlicensed practice of a profession or business for which a license is required by the chapters specified in RCW 18.130.040. The person to whom such notice is issued may request an adjudicative proceeding to contest the charges. The request for hearing must be filed within twenty days after service of the notice of intention to issue a cease and desist order. The failure to request a hearing constitutes a default, whereupon the secretary may enter a permanent cease and desist order, which may include a civil fine. All proceedings shall be conducted in accordance with chapter 34.05 RCW.
     (3) If the secretary makes a final determination that a person has engaged or is engaging in unlicensed practice, the secretary may issue a cease and desist order. In addition, the secretary may impose a civil fine in an amount not exceeding one thousand dollars for each day upon which the person engaged in unlicensed practice of a business or profession for which a license is required by one or more of the chapters specified in RCW 18.130.040. The proceeds of such fines shall be deposited to the health professions account.
     (4) If the secretary makes a written finding of fact that the public interest will be irreparably harmed by delay in issuing an order, the secretary may issue a temporary cease and desist order. The person receiving a temporary cease and desist order shall be provided an opportunity for a prompt hearing. The temporary cease and desist order shall remain in effect until further order of the secretary. The failure to request a prompt or regularly scheduled hearing constitutes a default, whereupon the secretary may enter a permanent cease and desist order, which may include a civil fine.
     (5) Neither the issuance of a cease and desist order nor payment of a civil fine shall relieve the person so practicing or operating a business without a license from criminal prosecution therefor, but the remedy of a cease and desist order or civil fine shall be in addition to any criminal liability. The cease and desist order is conclusive proof of unlicensed practice and may be enforced under RCW 7.21.060. This method of enforcement of the cease and desist order or civil fine may be used in addition to, or as an alternative to, any provisions for enforcement of agency orders set out in chapter 34.05 RCW.
     (6) The attorney general, a county prosecuting attorney, the secretary, a board, or any person may in accordance with the laws of this state governing injunctions, maintain an action in the name of this state to enjoin any person practicing a profession or business for which a license is required by the chapters specified in RCW 18.130.040 without a license from engaging in such practice or operating such business until the required license is secured. However, the injunction shall not relieve the person so practicing or operating a business without a license from criminal prosecution therefor, but the remedy by injunction shall be in addition to any criminal liability.
     (7)(a) Unlicensed practice of a profession or operating a business for which a license is required by the chapters specified in RCW 18.130.040, unless otherwise exempted by law, constitutes a gross misdemeanor for a single violation.
     (b) Each subsequent violation, whether alleged in the same or in subsequent prosecutions, is a class C felony punishable according to chapter 9A.20 RCW.
     (8) All fees, fines, forfeitures, and penalties collected or assessed by a court because of a violation of this section shall be remitted to the health professions account.

NEW SECTION.  Sec. 5   Section 4 of this act takes effect January 1, 2005.