BILL REQ. #: H-5153.1
| State of Washington | 60th Legislature | 2008 Regular Session |
READ FIRST TIME 02/05/08.
AN ACT Relating to health professions; amending RCW 18.130.020, 18.130.050, 18.130.060, 18.130.080, 18.130.095, 18.130.170, 18.130.310, 70.41.210, 43.70.320, 18.130.140, 18.130.150, 18.130.165, 18.130.172, 18.130.180, 9.96A.020, 9.95.240, and 43.43.825; reenacting and amending RCW 18.130.160, 18.130.040, and 18.130.040; adding new sections to chapter 18.130 RCW; adding a new section to chapter 42.52 RCW; creating new sections; prescribing penalties; providing effective dates; and providing an expiration date.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 From statehood, Washington has
constitutionally provided for the regulation of the practice of
medicine and the sale of drugs and medicines. This constitutional
recognition of the importance of regulating health care practitioners
derives not from providers' financial interest in their license, but
from the greater need to protect the public health and safety by
assuring that the health care providers and medicines that society
relies upon meet certain standards of quality.
The legislature finds that the issuance of a license to practice as
a health care provider should be a means to ensure quality and not be
a means to ensure financial benefit for providers. Statutory and
administrative requirements provide sufficient due process protections
to prevent the unwarranted revocation of a health care provider's
license. While those due process protections must be maintained, there
is an urgent need to return to the original constitutional mandate that
patients be ensured quality from their health care providers. The
legislature has recognized and medical malpractice reforms have
recognized the importance of quality and patient safety through such
measures as a new adverse events reporting system. Reforms to the
health care provider licensing system is another step toward improving
quality in health care. Therefore, the legislature intends to increase
the authority of those engaged in the regulation of health care
providers to swiftly identify and remove health care providers who pose
a risk to the public.
Sec. 2 RCW 18.130.020 and 1995 c 336 s 1 are each amended to read
as follows:
((Unless the context clearly requires otherwise,)) The definitions
in this section apply throughout this chapter unless the context
clearly requires otherwise.
(1) "Disciplining authority" means the agency, board, or commission
having the authority to take disciplinary action against a holder of,
or applicant for, a professional or business license upon a finding of
a violation of this chapter or a chapter specified under RCW
18.130.040.
(2) "Department" means the department of health.
(3) "Secretary" means the secretary of health or the secretary's
designee.
(4) "Board" means any of those boards specified in RCW 18.130.040.
(5) "Clinical expertise" means the proficiency or judgment that a
license holder in a particular profession acquires through clinical
experience or clinical practice and that is not possessed by a lay
person.
(6) "Commission" means any of the commissions specified in RCW
18.130.040.
(((6))) (7) "Unlicensed practice" means:
(a) Practicing a profession or operating a business identified in
RCW 18.130.040 without holding a valid, unexpired, unrevoked, and
unsuspended license to do so; or
(b) Representing to a consumer, through offerings, advertisements,
or use of a professional title or designation, that the individual is
qualified to practice a profession or operate a business identified in
RCW 18.130.040, without holding a valid, unexpired, unrevoked, and
unsuspended license to do so.
(((7))) (8) "Disciplinary action" means sanctions identified in RCW
18.130.160.
(((8))) (9) "Practice review" means an investigative audit of
records related to the complaint, without prior identification of
specific patient or consumer names, or an assessment of the conditions,
circumstances, and methods of the professional's practice related to
the complaint, to determine whether unprofessional conduct may have
been committed.
(((9))) (10) "Health agency" means city and county health
departments and the department of health.
(((10))) (11) "License," "licensing," and "licensure" shall be
deemed equivalent to the terms "license," "licensing," "licensure,"
"certificate," "certification," and "registration" as those terms are
defined in RCW 18.120.020.
(12) "Standards of practice" means the care, skill, and learning
associated with the practice of a profession.
Sec. 3 RCW 18.130.050 and 2006 c 99 s 4 are each amended to read
as follows:
Except as provided in section 5 of this act, 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));
(3) To hold hearings as provided in this chapter;
(((3))) (4) To issue subpoenas and administer oaths in connection
with any investigation, consideration of an application for license,
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 a complaint or report of
unprofessional conduct, to conduct practice reviews and to issue
citations and assess fines for failure to produce documents, records,
or other items in accordance with section 20 of this act;
(((7))) (8) 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. Within
fourteen days of a request by the affected license holder, the
disciplining authority must provide a show cause hearing in accordance
with the requirements of section 6 of this act. Consistent with RCW
18.130.370, a disciplining authority shall issue a summary suspension
of the license or temporary practice permit of a license holder
prohibited from practicing a health care profession in another state,
federal, or foreign jurisdiction because of an act of unprofessional
conduct that is substantially equivalent to an act of unprofessional
conduct prohibited by this chapter or any of the chapters specified in
RCW 18.130.040. The summary suspension remains in effect until
proceedings by the Washington disciplining authority have been
completed;
(((8))) (9) To conduct show cause hearings in accordance with
section 5 or 6 of this act to review an action taken by the
disciplining authority to suspend a license or restrict or limit a
license holder's practice pending proceedings by the disciplining
authority;
(10) 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. Disciplining authorities identified in RCW
18.130.040(2)(b) may not delegate the final decision regarding
disposition of the license or imposition of sanctions to a presiding
officer in any case pertaining to standards of practice or where
clinical expertise is necessary;
(((9))) (11) To use individual members of the boards to direct
investigations and to authorize the issuance of a citation under
subsection (7) of this section. However, the member of the board shall
not subsequently participate in the hearing of the case;
(((10))) (12) To enter into contracts for professional services
determined to be necessary for adequate enforcement of this chapter;
(((11))) (13) To contract with ((licensees)) license holders or
other persons or organizations to provide services necessary for the
monitoring and supervision of ((licensees)) license holders 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))) (14) To adopt standards of professional conduct or
practice;
(((13))) (15) 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. After January 1, 2009, all sanctions
must be issued in accordance with section 12 of this act;
(((14))) (16) To restrict or place conditions on the practice of
new licensees in order to protect the public and promote the safety of
and confidence in the health care system;
(17) To designate individuals authorized to sign subpoenas and
statements of charges;
(((15))) (18) 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))) (19) To review and audit the records of licensed health
facilities' or services' quality assurance committee decisions in which
a ((licensee's)) license holder'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. 4 RCW 18.130.060 and 2006 c 99 s 1 are each amended to read
as follows:
In addition to the authority specified in RCW 18.130.050 and
section 5 of this act, the secretary has the following additional
authority:
(1) To employ such investigative, administrative, and clerical
staff as necessary for the enforcement of this chapter. The secretary
must, whenever practical, make primary assignments on a long-term basis
to foster the development and maintenance of staff expertise. To
ensure continuity and best practices, the secretary will regularly
evaluate staff assignments and workload distribution;
(2) Upon the request of a board or commission, to appoint pro tem
members to participate as members of a panel of the board or commission
in connection with proceedings specifically identified in the request.
Individuals so appointed must meet the same minimum qualifications as
regular members of the board or commission. 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 or commission 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 or commission.
The chairperson of a panel shall be a regular member of the board or
commission appointed by the board or commission chairperson. Panels
have authority to act as directed by the board or commission 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 and within the
authority of the board or commission. The authority to act through
panels does not restrict the authority of the board or commission to
act as a single body at any phase of proceedings within the board's or
commission's jurisdiction. Board or commission panels may ((make
interim orders and)) issue final orders and decisions with respect to
matters and cases delegated to the panel by the board or commission.
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); and
(6) To adopt rules, in consultation with the disciplining
authorities, requiring every license holder to report information
identified in RCW 18.130.070.
NEW SECTION. Sec. 5 A new section is added to chapter 18.130 RCW
to read as follows:
(1)(a) With regard to complaints that only allege that a license
holder has committed an act or acts of unprofessional conduct involving
sexual misconduct, the secretary shall serve as the sole disciplining
authority in every aspect of the disciplinary process, including
initiating investigations, investigating, determining the disposition
of the complaint, holding hearings, preparing findings of fact, issuing
orders or dismissals of charges as provided in RCW 18.130.110, entering
into stipulations permitted by RCW 18.130.172, or issuing summary
suspensions under section 6 of this act.
(b) The provisions of (a) of this subsection only apply to cases in
which the act or acts of sexual misconduct do not also involve issues
of clinical expertise or standards of practice.
(2)(a) Within seventy-two hours of receiving a complaint related to
a license holder that is regulated by a board or commission identified
in RCW 18.130.040(2)(b) and that only alleges acts of sexual
misconduct, the secretary shall send the complaint and any other
information that may be available related to the complaint or a
preliminary investigation of the complaint to the board or commission
responsible for the discipline of the license holder named in the
complaint. If, upon review of the complaint and other information
received from the secretary, the board or commission determines that
the case involves issues of clinical expertise or standards of
practice, then the case, upon notice to the secretary, must be
transferred to and become the responsibility of that board or
commission under its authority under RCW 18.130.050 as a disciplining
authority. Within seventy-two hours of receipt of a complaint from the
secretary, the board or commission must identify whether the complaint
should be transferred.
(b) The secretary's staff that participate in making an initial
determination that a complaint alleges acts involving sexual misconduct
that does not include issues of clinical expertise or standards of
practice may not participate in the review of that determination
conducted by the board or commission under (a) of this subsection.
NEW SECTION. Sec. 6 A new section is added to chapter 18.130 RCW
to read as follows:
(1) Upon an order of a disciplining authority to summarily suspend
a license, or restrict or limit a license holder's practice pursuant to
RCW 18.130.050 or section 5 of this act, the license holder is entitled
to a show cause hearing before a panel or health law judge identified
in subsection (2) of this section within fourteen days of requesting a
show cause hearing. The license holder must request the show cause
hearing within twenty-one days of the issuance of the order. At the
show cause hearing, the disciplining authority has the burden of
demonstrating that the license holder poses an immediate threat to the
public health and safety. The license holder must request a hearing
regarding the statement of charges in accordance with RCW 18.130.090.
(2)(a) In the case of a license holder who is regulated by a board
or commission identified in RCW 18.130.040(2)(b), the show cause
hearing must be held by a panel of the appropriate board or commission.
(b) In the case of a license holder who is regulated by the
secretary under RCW 18.130.040(2)(a), the show cause hearing must be
held by a health law judge.
(3) At the show cause hearing, the show cause hearing panel or
health law judge may consider all evidence and shall provide the
license holder with an opportunity to provide testimony and be
represented by legal counsel.
(4)(a) If the show cause hearing panel or health law judge
determines that the license holder does not pose an immediate threat to
the public health and safety, the panel or health law judge may
overturn the summary suspension or restriction order.
(b) If the show cause hearing panel or health law judge determines
that the license holder poses an immediate threat to the public health
and safety, the summary suspension or restriction order shall remain in
effect. The show cause hearing panel or health law judge may amend the
order as long as the amended order ensures that the license holder will
no longer pose an immediate threat to the public health and safety.
(5) Within forty-five days of the show cause hearing panel's
determination to sustain the summary suspension or place restrictions
on the license, the license holder may request a full hearing on the
merits of the disciplining authority's decision to suspend or restrict
the license. A full hearing must be provided within forty-five days of
receipt of the request for a hearing, unless stipulated otherwise.
NEW SECTION. Sec. 7 A new section is added to chapter 18.130 RCW
to read as follows:
(1)(a) The secretary is authorized to receive criminal history
record information that includes nonconviction data for any purpose
associated with investigation or licensing and investigate the complete
criminal history and pending charges of all applicants and license
holders.
(b) Dissemination or use of nonconviction data for purposes other
than that authorized in this section is prohibited. Disciplining
authorities shall restrict the use of background check results in
determining the individual's suitability for a license and in
conducting disciplinary functions.
(2)(a) The secretary shall establish requirements for each
applicant for an initial license to obtain a state background check
through the state patrol prior to the issuance of any license. The
background check may be fingerprint-based at the discretion of the
department.
(b) The secretary shall specify those situations where a background
check under (a) of this subsection is inadequate and an applicant for
an initial license must obtain an electronic fingerprint-based national
background check through the state patrol and federal bureau of
investigation. Situations where a background check is inadequate may
include instances where an applicant has recently lived out of state or
where the applicant has a criminal record in Washington. The secretary
shall issue a temporary practice permit to an applicant who must have
a national background check conducted if the background check conducted
under (a) of this subsection does not reveal a criminal record in
Washington, and if the applicant meets the provisions of RCW
18.130.075.
(3) In addition to the background check required in subsection (2)
of this section, an investigation may include an examination of state
and national criminal identification data. The disciplining authority
shall use the information for determining eligibility for licensure or
renewal. The disciplining authority may also use the information when
determining whether to proceed with an investigation of a report under
RCW 18.130.080. For a national criminal history records check, the
department shall require fingerprints be submitted to and searched
through the Washington state patrol identification and criminal history
section. The Washington state patrol shall forward the fingerprints to
the federal bureau of investigation.
(4) The secretary shall adopt rules to require license holders to
report to the disciplining authority any arrests, convictions, or other
determinations or findings by a law enforcement agency occurring after
the effective date of this section for a criminal offense. The report
must be made within fourteen days of the conviction.
(5) The secretary shall conduct an annual review of a
representative sample of all license holders who have previously
obtained a background check through the department. The selection of
the license holders to be reviewed must be representative of all
categories of license holders and geographic locations.
(6)(a) When deciding whether or not to issue an initial license,
the disciplining authority shall consider the results of any background
check conducted under subsection (2) of this section that reveals a
conviction for any criminal offense that constitutes unprofessional
conduct under this chapter or the chapters specified in RCW
18.130.040(2) or a series of arrests that when considered together
demonstrate a pattern of behavior that, without investigation, may pose
a risk to the safety of the license holder's patients.
(b) If the background check conducted under subsection (2) of this
section reveals any information related to unprofessional conduct that
has not been previously disclosed to the disciplining authority, the
disciplining authority shall take appropriate disciplinary action
against the license holder.
(7) The department shall:
(a) Require the applicant or license holder to submit full sets of
fingerprints if necessary to complete the background check;
(b) Require the applicant to submit any information required by the
state patrol; and
(c) Notify the applicant of the results of the background check.
If any background check reveals a criminal record, the department shall
send the applicant a copy of the record upon request.
(8) Criminal justice agencies shall provide the secretary with both
conviction and nonconviction information that the secretary requests
for investigations under this chapter.
(9) There is established a unit within the department for the
purpose of detection, investigation, and prosecution of any act
prohibited or declared unlawful under this chapter. The secretary will
employ supervisory, legal, and investigative personnel for the unit who
must be qualified by training and experience.
Sec. 8 RCW 18.130.080 and 2006 c 99 s 5 are each amended to read
as follows:
(1) ((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,)) (a) An individual, an impaired practitioner program, or a
voluntary substance abuse monitoring program approved by a disciplining
authority, 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.
(b)(i) Every license holder, corporation, organization, health care
facility, and state and local governmental agency that employs a
license holder shall report to the disciplining authority when any
license holder's services have been terminated or restricted based upon
a final determination that the license holder has either committed an
act or acts that may constitute unprofessional conduct or 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.
(ii) All reports required by (b)(i) of this subsection must be
submitted to the disciplining authority as soon as possible, but no
later than twenty days after a determination has been made. A report
should contain the following information, if known:
(A) The name, address, and telephone number of the person making
the report;
(B) The name, address, and telephone number of the license holder
being reported;
(C) The case number of any patient whose treatment is the subject
of the report;
(D) A brief description or summary of the facts that gave rise to
the issuance of the report, including dates of occurrences;
(E) If court action is involved, the name of the court in which the
action is filed, the date of filing, and the docket number; and
(F) Any further information that would aid in the evaluation of the
report.
(iii) Mandatory reports required by (b)(i) of this subsection are
exempt from public inspection and copying to the extent permitted under
chapter 42.56 RCW or to the extent that public inspection or copying of
the report would invade or violate a person's right to privacy as set
forth in RCW 42.56.050.
(2) If the disciplining authority determines that ((the)) a
complaint submitted under subsection (1) of this section 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.
In determining whether or not to investigate, the disciplining
authority shall consider any prior complaints received by the
disciplining authority, any prior findings of fact under RCW
18.130.110, any stipulations to informal disposition under RCW
18.130.172, and any comparable action taken by other state disciplining
authorities.
(((2))) (3) Notwithstanding subsection (((1))) (2) of this section,
the disciplining authority shall initiate an investigation in every
instance where:
(a) The disciplining authority receives information that a health
care provider has been disqualified from participating in the federal
medicare program, under Title XVIII of the federal social security act,
or the federal medicaid program, under Title XIX of the federal social
security act; or
(b) There is a pattern of complaints, arrests, or other actions
that may not have resulted in a formal adjudication of wrongdoing, but
when considered together demonstrate a pattern of similar conduct that,
without investigation, likely poses a risk to the safety of the license
holder's patients.
(4) Failure of a license holder to submit a mandatory report to the
disciplining authority under subsection (1)(b) of this section is
punishable by a civil penalty not to exceed five hundred dollars and
constitutes unprofessional conduct.
(5) If a report has been made by a hospital to the department under
RCW 70.41.210 or an ambulatory surgical facility under RCW 70.230.120,
a report to the disciplining authority under subsection (1)(b) of this
section is not required.
(((3) 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.))
(6) A person is immune from civil liability, whether direct or
derivative, for providing information in good faith to the disciplining
authority under this section.
(7)(a) The secretary is authorized to receive criminal history
record information that includes nonconviction data for any purpose
associated with the investigation or licensing of persons under this
chapter.
(b) Dissemination or use of nonconviction data for purposes other
than that authorized in this section is prohibited.
Sec. 9 RCW 18.130.095 and 2005 c 274 s 231 are each amended to
read as follows:
(1)(a) The secretary, in consultation with the disciplining
authorities, shall develop uniform procedural rules to respond to
public inquiries concerning complaints and their disposition, active
investigations, statement of charges, findings of fact, and final
orders involving a ((licensee)) license holder, applicant, or
unlicensed person. The uniform procedural rules adopted under this
subsection apply to all adjudicative proceedings conducted under this
chapter and shall include provisions for establishing time periods for
initial assessment, investigation, charging, discovery, settlement, and
adjudication of complaints, and shall include enforcement provisions
for violations of the specific time periods by the department, the
disciplining authority, and the respondent. A ((licensee)) license
holder must be notified upon receipt of a complaint, except when the
notification would impede an effective investigation. At the earliest
point of time the ((licensee)) license holder must be allowed to submit
a written statement about that complaint, which statement must be
included in the file. Complaints filed after July 27, 1997, are exempt
from public disclosure under chapter 42.56 RCW until the complaint has
been initially assessed and determined to warrant an investigation by
the disciplining authority. Complaints determined not to warrant an
investigation by the disciplining authority are no longer considered
complaints, but must remain in the records and tracking system of the
department. Information about complaints that did not warrant an
investigation, including the existence of the complaint, may be
released only upon receipt of a written public disclosure request or
pursuant to an interagency agreement as provided in (b) of this
subsection. Complaints determined to warrant no cause for action after
investigation are subject to public disclosure, must include an
explanation of the determination to close the complaint, and must
remain in the records and tracking system of the department.
(b) The secretary, on behalf of the disciplining authorities, shall
enter into interagency agreements for the exchange of records, which
may include complaints filed but not yet assessed, with other state
agencies if access to the records will assist those agencies in meeting
their federal or state statutory responsibilities. Records obtained by
state agencies under the interagency agreements are subject to the
limitations on disclosure contained in (a) of this subsection.
(2) The uniform procedures for conducting investigations shall
provide that prior to taking a written statement:
(a) For violation of this chapter, the investigator shall inform
such person, in writing of: (i) The nature of the complaint; (ii) that
the person may consult with legal counsel at his or her expense prior
to making a statement; and (iii) that any statement that the person
makes may be used in an adjudicative proceeding conducted under this
chapter; and
(b) From a witness or potential witness in an investigation under
this chapter, the investigator shall inform the person, in writing,
that the statement may be released to the ((licensee)) license holder,
applicant, or unlicensed person under investigation if a statement of
charges is issued.
(3) Only upon the authorization of a disciplining authority
identified in RCW 18.130.040(2)(b), the secretary, or his or her
designee, may serve as the presiding officer for any disciplinary
proceedings of the disciplining authority authorized under this
chapter, except in cases pertaining to standards of practice or where
clinical expertise is necessary. Except as provided in RCW
18.130.050(((8))) (10), the presiding officer shall not vote on or make
any final decision. All functions performed by the presiding officer
shall be subject to chapter 34.05 RCW. The secretary, in consultation
with the disciplining authorities, shall adopt procedures for
implementing this subsection.
(4) The uniform procedural rules shall be adopted by all
disciplining authorities listed in RCW 18.130.040(2), and shall be used
for all adjudicative proceedings conducted under this chapter, as
defined by chapter 34.05 RCW. The uniform procedural rules shall
address the use of a presiding officer authorized in subsection (3) of
this section to determine and issue decisions on all legal issues and
motions arising during adjudicative proceedings.
Sec. 10 RCW 18.130.160 and 2006 c 99 s 6 and 2006 c 8 s 104 are
each reenacted and 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 consider the imposition of
sanctions, taking into account)) shall issue an order including
sanctions adopted in accordance with the schedule adopted under section
12 of this act giving proper consideration to any prior findings of
fact under RCW 18.130.110, any stipulations to informal disposition
under RCW 18.130.172, and any action taken by other in-state or out-of-state disciplining authorities((, and issue an)). The order
((providing)) must provide for one or any combination of the following,
as directed by the schedule:
(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.
Any of the actions under this section may be totally or partly
stayed by the disciplining authority. Safeguarding the public's health
and safety is the paramount responsibility of every disciplining
authority ((and)). In determining what action is appropriate, the
disciplining authority must consider the schedule adopted under section
12 of this act. Where the schedule allows flexibility in determining
the appropriate sanction, 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 disciplining
authority may order permanent revocation of a license if it finds that
the license holder can never be rehabilitated or can never regain the
ability to practice with reasonable skill and safety.
Surrender or permanent revocation of a license under this section
is not subject to a petition for reinstatement under RCW 18.130.150.
The disciplining authority may determine that a case presents
unique circumstances that the schedule adopted under section 12 of this
act does not adequately address. The disciplining authority may
deviate from the schedule adopted under section 12 of this act when
selecting appropriate sanctions, but the disciplining authority must
issue a written explanation of the basis for not following the
schedule.
The ((licensee or applicant)) license holder 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)) license holder 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)) license holder 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. 11 RCW 18.130.170 and 1995 c 336 s 8 are each amended to
read as follows:
(1) If the disciplining authority 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 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 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. The license holder ((or applicant)) shall be
provided written notice of the disciplining authority'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 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 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 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 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 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 shall be paid out of the health professions
account. In addition to any examinations ordered by the disciplining
authority, the ((licensee)) license holder 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 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))) (8).
(f) A determination by a court of competent jurisdiction that a
license holder ((or applicant)) is mentally incompetent or ((mentally
ill)) an individual with mental illness 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)) a 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 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 on the ground that the testimony or reports
constitute privileged communications.
NEW SECTION. Sec. 12 A new section is added to chapter 18.130
RCW to read as follows:
(1) Each of the disciplining authorities identified in RCW
18.130.040(2)(b) shall appoint a representative to review the
secretary's sanctioning guidelines, as well as guidelines adopted by
any of the boards and commissions, and collaborate to develop a
schedule that defines appropriate ranges of sanctions that are
applicable upon a determination that a license holder has committed
unprofessional conduct as defined in this chapter or the chapters
specified in RCW 18.130.040(2). The schedule must identify aggravating
and mitigating circumstances that may enhance or reduce the sanction
imposed by the disciplining authority for unprofessional conduct. The
schedule must apply to all disciplining authorities. In addition, the
disciplining authorities shall make provisions for instances in which
there are multiple findings of unprofessional conduct. When
establishing the proposed schedule, the disciplining authorities shall
consider maintaining consistent sanction determinations that maximize
the protection of the public's health and while maintaining the rights
of health care providers of the different health professions. The
disciplining authorities shall submit the proposed schedule and
recommendations to modify or adopt the secretary's guidelines to the
secretary no later than November 15, 2008.
(2) The secretary shall adopt rules establishing a uniform
sanctioning schedule that is consistent with the proposed schedule
developed under subsection (1) of this section. The schedule shall be
applied to all disciplinary actions commenced under this chapter after
January 1, 2009. The secretary shall use his or her emergency
rule-making authority pursuant to the procedures under chapter 34.05
RCW, to adopt rules that take effect no later than January 1, 2009, to
implement the schedule.
(3) The disciplining authority may determine that a case presents
unique circumstances that the schedule adopted under this section does
not adequately address. The disciplining authority may deviate from
the schedule adopted under this section when selecting appropriate
sanctions, but the disciplining authority must issue a written
explanation in the order of the basis for not following the schedule.
(4) The secretary shall report to the legislature by January 15,
2009, on the adoption of the sanctioning schedule.
Sec. 13 RCW 18.130.310 and 1989 1st ex.s. c 9 s 313 are each
amended to read as follows:
(1) Subject to RCW 40.07.040, the disciplinary authority shall
submit ((a biennial)) an annual report to the legislature on its
proceedings during the ((biennium)) year, detailing the number of
complaints made, investigated, and adjudicated and manner of
disposition. In addition, the report must provide data on the
department's background check activities conducted under section 7 of
this act and the effectiveness of those activities in identifying
potential license holders who may not be qualified to practice safely.
The report must summarize the distribution of the number of cases
assigned to each attorney and investigator for each profession. The
identity of the attorney and investigator must remain anonymous. The
report may include recommendations for improving the disciplinary
process, including proposed legislation. The department shall develop
a uniform report format.
(2) Each disciplining authority identified in RCW 18.130.040(2)(b)
may submit an annual report to complement the report required under
subsection (1) of this section. Each report may provide additional
information about the disciplinary activities, rule-making and policy
activities, and receipts and expenditures for the individual
disciplining authority.
Sec. 14 RCW 70.41.210 and 2005 c 470 s 1 are each amended to read
as follows:
(1) The chief administrator or executive officer of a hospital
shall report to the department when the practice of a health care
practitioner as defined in subsection (2) of this section is
restricted, suspended, limited, or terminated based upon a conviction,
determination, or finding by the hospital that the health care
practitioner has committed an action defined as unprofessional conduct
under RCW 18.130.180. The chief administrator or executive officer
shall also report any voluntary restriction or termination of the
practice of a health care practitioner as defined in subsection (2) of
this section while the practitioner is under investigation or the
subject of a proceeding by the hospital regarding unprofessional
conduct, or in return for the hospital not conducting such an
investigation or proceeding or not taking action. The department will
forward the report to the appropriate disciplining authority.
(2) The reporting requirements apply to the following health care
practitioners: Pharmacists as defined in chapter 18.64 RCW; advanced
registered nurse practitioners as defined in chapter 18.79 RCW;
dentists as defined in chapter 18.32 RCW; naturopaths as defined in
chapter 18.36A RCW; optometrists as defined in chapter 18.53 RCW;
osteopathic physicians and surgeons as defined in chapter 18.57 RCW;
osteopathic ((physician [physicians'])) physicians' assistants as
defined in chapter 18.57A RCW; physicians as defined in chapter 18.71
RCW; physician assistants as defined in chapter 18.71A RCW; podiatric
physicians and surgeons as defined in chapter 18.22 RCW; and
psychologists as defined in chapter 18.83 RCW.
(3) Reports made under subsection (1) of this section shall be made
within fifteen days of the date: (a) A conviction, determination, or
finding is made by the hospital that the health care practitioner has
committed an action defined as unprofessional conduct under RCW
18.130.180; or (b) the voluntary restriction or termination of the
practice of a health care practitioner, including his or her voluntary
resignation, while under investigation or the subject of proceedings
regarding unprofessional conduct under RCW 18.130.180 is accepted by
the hospital.
(4) Failure of a hospital to comply with this section is punishable
by a civil penalty not to exceed ((two)) five hundred ((fifty))
dollars.
(5) A hospital, its chief administrator, or its executive officer
who files a report under this section is immune from suit, whether
direct or derivative, in any civil action related to the filing or
contents of the report, unless the conviction, determination, or
finding on which the report and its content are based is proven to not
have been made in good faith. The prevailing party in any action
brought alleging the conviction, determination, finding, or report was
not made in good faith, shall be entitled to recover the costs of
litigation, including reasonable attorneys' fees.
(6) The department shall forward reports made under subsection (1)
of this section to the appropriate disciplining authority designated
under Title 18 RCW within fifteen days of the date the report is
received by the department. The department shall notify a hospital
that has made a report under subsection (1) of this section of the
results of the disciplining authority's case disposition decision
within fifteen days after the case disposition. Case disposition is
the decision whether to issue a statement of charges, take informal
action, or close the complaint without action against a practitioner.
In its biennial report to the legislature under RCW 18.130.310, the
department shall specifically identify the case dispositions of reports
made by hospitals under subsection (1) of this section.
(7) The department shall not increase hospital license fees to
carry out this section before July 1, ((2007)) 2008.
NEW SECTION. Sec. 15 A new section is added to chapter 42.52 RCW
to read as follows:
Members of a health profession board or commission as identified in
RCW 18.130.040(2)(b) may express their professional opinions to an
elected official about the work of the board or commission on which the
member serves, even if those opinions differ from the department of
health's official position. Such communication shall be to inform the
elected official and not to lobby in support or opposition to any
initiative to the legislature.
Sec. 16 RCW 43.70.320 and 1993 c 492 s 411 are each amended to
read as follows:
(1) There is created in the state treasury an account to be known
as the health professions account. All fees received by the department
for health professions licenses, registration, certifications,
renewals, or examinations and the civil penalties assessed and
collected by the department under RCW 18.130.190 shall be forwarded to
the state treasurer who shall credit such moneys to the health
professions account.
(2) All expenses incurred in carrying out the health professions
licensing activities of the department shall be paid from the account
as authorized by legislative appropriation, except as provided in
subsection (4) of this section. Any residue in the account shall be
accumulated and shall not revert to the general fund at the end of the
biennium.
(3) The secretary shall biennially prepare a budget request based
on the anticipated costs of administering the health professions
licensing activities of the department which shall include the
estimated income from health professions fees.
(4) The secretary shall, at the request of a board or commission as
applicable, spend unappropriated funds in the health professions
account that are allocated to the requesting board or commission to
meet unanticipated costs of that board or commission when revenues
exceed more than fifteen percent over the department's estimated
six-year spending projections for the requesting board or commission.
Unanticipated costs shall be limited to spending as authorized in
subsection (3) of this section for anticipated costs.
Sec. 17 RCW 18.130.040 and 2007 c 269 s 17 and 2007 c 70 s 11 are
each reenacted and amended to read as follows:
(1) This chapter applies only to the secretary and the boards and
commissions having jurisdiction in relation to the professions licensed
under the chapters specified in this section. This chapter does not
apply to any business or profession not licensed under the chapters
specified in this section.
(2)(a) The secretary has authority under this chapter in relation
to the following professions:
(i) Dispensing opticians licensed and designated apprentices under
chapter 18.34 RCW;
(ii) Naturopaths licensed under chapter 18.36A RCW;
(iii) Midwives licensed under chapter 18.50 RCW;
(iv) Ocularists licensed under chapter 18.55 RCW;
(v) Massage operators and businesses licensed under chapter 18.108
RCW;
(vi) Dental hygienists licensed under chapter 18.29 RCW;
(vii) Acupuncturists licensed under chapter 18.06 RCW;
(viii) Radiologic technologists certified and X-ray technicians
registered under chapter 18.84 RCW;
(ix) Respiratory care practitioners licensed under chapter 18.89
RCW;
(x) Persons registered under chapter 18.19 RCW;
(xi) Persons licensed as mental health counselors, marriage and
family therapists, and social workers under chapter 18.225 RCW;
(xii) Persons registered as nursing pool operators under chapter
18.52C RCW;
(xiii) Nursing assistants registered or certified under chapter
18.88A RCW;
(xiv) Health care assistants certified under chapter 18.135 RCW;
(xv) Dietitians and nutritionists certified under chapter 18.138
RCW;
(xvi) Chemical dependency professionals certified under chapter
18.205 RCW;
(xvii) Sex offender treatment providers and certified affiliate sex
offender treatment providers certified under chapter 18.155 RCW;
(xviii) Persons licensed and certified under chapter 18.73 RCW or
RCW 18.71.205;
(xix) Denturists licensed under chapter 18.30 RCW;
(xx) Orthotists and prosthetists licensed under chapter 18.200 RCW;
(xxi) Surgical technologists registered under chapter 18.215 RCW;
(xxii) Recreational therapists; and
(xxiii) Animal massage practitioners certified under chapter 18.240
RCW.
(b) The boards and commissions having authority under this chapter
are as follows:
(i) The podiatric medical board as established in chapter 18.22
RCW;
(ii) The chiropractic quality assurance commission as established
in chapter 18.25 RCW;
(iii) The dental quality assurance commission as established in
chapter 18.32 RCW governing licenses issued under chapter 18.32 RCW and
licenses and registrations issued under chapter 18.260 RCW;
(iv) The board of hearing and speech as established in chapter
18.35 RCW;
(v) The board of examiners for nursing home administrators as
established in chapter 18.52 RCW;
(vi) The optometry board as established in chapter 18.54 RCW
governing licenses issued under chapter 18.53 RCW;
(vii) The board of osteopathic medicine and surgery as established
in chapter 18.57 RCW governing licenses issued under chapters 18.57 and
18.57A RCW;
(viii) The board of pharmacy as established in chapter 18.64 RCW
governing licenses issued under chapters 18.64 and 18.64A RCW;
(ix) The medical quality assurance commission as established in
chapter 18.71 RCW governing licenses and registrations issued under
chapters 18.71 and 18.71A RCW;
(x) The board of physical therapy as established in chapter 18.74
RCW;
(xi) The board of occupational therapy practice as established in
chapter 18.59 RCW;
(xii) The nursing care quality assurance commission as established
in chapter 18.79 RCW governing licenses and registrations issued under
that chapter;
(xiii) The examining board of psychology and its disciplinary
committee as established in chapter 18.83 RCW; and
(xiv) The veterinary board of governors as established in chapter
18.92 RCW.
(3) In addition to the authority to discipline license holders, the
disciplining authority has the authority to grant or deny licenses
((based on the conditions and criteria established in this chapter and
the chapters specified in subsection (2) of this section. This chapter
also governs any investigation, hearing, or proceeding relating to
denial of licensure or issuance of a license conditioned on the
applicant's compliance with an order entered pursuant to RCW 18.130.160
by)). The disciplining authority may also grant a license subject to
conditions.
(4) All disciplining authorities shall adopt procedures to ensure
substantially consistent application of this chapter, the Uniform
Disciplinary Act, among the disciplining authorities listed in
subsection (2) of this section.
Sec. 18 RCW 18.130.040 and 2007 c 269 s 17, 2007 c 253 s 13, and
2007 c 70 s 11 are each reenacted and amended to read as follows:
(1) This chapter applies only to the secretary and the boards and
commissions having jurisdiction in relation to the professions licensed
under the chapters specified in this section. This chapter does not
apply to any business or profession not licensed under the chapters
specified in this section.
(2)(a) The secretary has authority under this chapter in relation
to the following professions:
(i) Dispensing opticians licensed and designated apprentices under
chapter 18.34 RCW;
(ii) Naturopaths licensed under chapter 18.36A RCW;
(iii) Midwives licensed under chapter 18.50 RCW;
(iv) Ocularists licensed under chapter 18.55 RCW;
(v) Massage operators and businesses licensed under chapter 18.108
RCW;
(vi) Dental hygienists licensed under chapter 18.29 RCW;
(vii) Acupuncturists licensed under chapter 18.06 RCW;
(viii) Radiologic technologists certified and X-ray technicians
registered under chapter 18.84 RCW;
(ix) Respiratory care practitioners licensed under chapter 18.89
RCW;
(x) Persons registered under chapter 18.19 RCW;
(xi) Persons licensed as mental health counselors, marriage and
family therapists, and social workers under chapter 18.225 RCW;
(xii) Persons registered as nursing pool operators under chapter
18.52C RCW;
(xiii) Nursing assistants registered or certified under chapter
18.88A RCW;
(xiv) Health care assistants certified under chapter 18.135 RCW;
(xv) Dietitians and nutritionists certified under chapter 18.138
RCW;
(xvi) Chemical dependency professionals certified under chapter
18.205 RCW;
(xvii) Sex offender treatment providers and certified affiliate sex
offender treatment providers certified under chapter 18.155 RCW;
(xviii) Persons licensed and certified under chapter 18.73 RCW or
RCW 18.71.205;
(xix) Denturists licensed under chapter 18.30 RCW;
(xx) Orthotists and prosthetists licensed under chapter 18.200 RCW;
(xxi) Surgical technologists registered under chapter 18.215 RCW;
(xxii) Recreational therapists;
(xxiii) Animal massage practitioners certified under chapter 18.240
RCW; and
(xxiv) Athletic trainers licensed under chapter 18.250 RCW.
(b) The boards and commissions having authority under this chapter
are as follows:
(i) The podiatric medical board as established in chapter 18.22
RCW;
(ii) The chiropractic quality assurance commission as established
in chapter 18.25 RCW;
(iii) The dental quality assurance commission as established in
chapter 18.32 RCW governing licenses issued under chapter 18.32 RCW and
licenses and registrations issued under chapter 18.260 RCW;
(iv) The board of hearing and speech as established in chapter
18.35 RCW;
(v) The board of examiners for nursing home administrators as
established in chapter 18.52 RCW;
(vi) The optometry board as established in chapter 18.54 RCW
governing licenses issued under chapter 18.53 RCW;
(vii) The board of osteopathic medicine and surgery as established
in chapter 18.57 RCW governing licenses issued under chapters 18.57 and
18.57A RCW;
(viii) The board of pharmacy as established in chapter 18.64 RCW
governing licenses issued under chapters 18.64 and 18.64A RCW;
(ix) The medical quality assurance commission as established in
chapter 18.71 RCW governing licenses and registrations issued under
chapters 18.71 and 18.71A RCW;
(x) The board of physical therapy as established in chapter 18.74
RCW;
(xi) The board of occupational therapy practice as established in
chapter 18.59 RCW;
(xii) The nursing care quality assurance commission as established
in chapter 18.79 RCW governing licenses and registrations issued under
that chapter;
(xiii) The examining board of psychology and its disciplinary
committee as established in chapter 18.83 RCW; and
(xiv) The veterinary board of governors as established in chapter
18.92 RCW.
(3) In addition to the authority to discipline license holders, the
disciplining authority has the authority to grant or deny licenses
((based on the conditions and criteria established in this chapter and
the chapters specified in subsection (2) of this section. This chapter
also governs any investigation, hearing, or proceeding relating to
denial of licensure or issuance of a license conditioned on the
applicant's compliance with an order entered pursuant to RCW 18.130.160
by)). The disciplining authority may also grant a license subject to
conditions.
(4) All disciplining authorities shall adopt procedures to ensure
substantially consistent application of this chapter, the Uniform
Disciplinary Act, among the disciplining authorities listed in
subsection (2) of this section.
NEW SECTION. Sec. 19 A new section is added to chapter 18.130
RCW to read as follows:
(1) The disciplining authority may deny an application for
licensure or grant a license with conditions if the applicant:
(a) Has had his or her license to practice any health care
profession suspended, revoked, or restricted, by competent authority in
any state, federal, or foreign jurisdiction;
(b) Has committed any act defined as unprofessional conduct for a
license holder under RCW 18.130.180;
(c) Has been convicted or is subject to current prosecution or
pending charges of a crime involving moral turpitude or a crime
identified in RCW 43.43.830. For 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
prosecution or sentence has been deferred or suspended. At the request
of an applicant for an original license whose conviction is under
appeal, the disciplining authority may defer decision upon the
application during the pendency of such a prosecution or appeal;
(d) Fails to prove that he or she is qualified in accordance with
the provisions of this chapter, the chapters identified in RCW
18.130.040(2), or the rules adopted by the disciplining authority; or
(e) Is not able to practice with reasonable skill and safety to
consumers by reason of any mental or physical condition.
(i) The disciplining authority may require the applicant, at his or
her own expense, to submit to a mental, physical, or psychological
examination by one or more licensed health professionals designated by
the disciplining authority. The disciplining authority shall provide
written notice of its requirement for a mental or physical examination
that includes a statement of the specific conduct, event, or
circumstances justifying an examination and a statement of the nature,
purpose, scope, and content of the intended examination. If the
applicant fails to submit to the examination or provide the results of
the examination or any required waivers, the disciplining authority may
deny the application.
(ii) An applicant governed by this chapter is deemed to have given
consent to submit to a mental, physical, or psychological examination
when directed in writing by the disciplining authority 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 on the grounds that the testimony or reports
constitute privileged communications.
(2) The provisions of RCW 9.95.240 and chapter 9.96A RCW do not
apply to a decision to deny a license under this section.
(3) The disciplining authority shall give written notice to the
applicant of the decision to deny a license or grant a license with
conditions in response to an application for a license. The notice
must state the grounds and factual basis for the action and be served
upon the applicant.
(4) A license applicant who is aggrieved by the decision to deny
the license or grant the license with conditions has the right to an
adjudicative proceeding. The application for adjudicative proceeding
must be in writing, state the basis for contesting the adverse action,
include a copy of the adverse notice, and be served on and received by
the department within twenty-eight days of the decision. The license
applicant has the burden to establish, by a preponderance of evidence,
that the license applicant is qualified in accordance with the
provisions of this chapter, the chapters identified in RCW
18.130.040(2), and the rules adopted by the disciplining authority.
NEW SECTION. Sec. 20 A new section is added to chapter 18.130
RCW to read as follows:
(1)(a) A licensee must produce documents, records, or other items
that are within his or her possession or control within twenty-one
calendar days of service of a request by a disciplining authority. If
the twenty-one calendar day limit results in a hardship upon the
licensee, he or she may request, for good cause, an extension not to
exceed thirty additional calendar days.
(b) In the event the licensee fails to produce the documents,
records, or other items as requested by the disciplining authority or
fails to obtain an extension of the time for response, the disciplining
authority may issue a written citation and assess a fine of up to one
hundred dollars per day for each day after the issuance of the citation
until the documents, records, or other items are produced.
(c) In no event may the administrative fine assessed by the
disciplining authority exceed five thousand dollars for each
investigation made with respect to the violation.
(2) Citations issued under this section must include the following:
(a) A statement that the citation represents a determination that
the person named has failed to produce documents, records, or other
items as required by this section and that the determination is final
unless contested as provided in this section;
(b) A statement of the specific circumstances;
(c) A statement of the monetary fine, which is up to one hundred
dollars per day for each day after the issuance of the citation;
(d) A statement informing the licensee that if the licensee desires
a hearing to contest the finding of a violation, the hearing must be
requested by written notice to the disciplining authority within twenty
days of the date of issuance of the citation. The hearing is limited
to the issue of whether the licensee timely produced the requested
documents, records, or other items or had good cause for failure to do
so; and
(e) A statement that in the event a licensee fails to pay a fine
within thirty days of the date of assessment, the full amount of the
assessed fine must be added to the fee for renewal of the license
unless the citation is being appealed.
(3) RCW 18.130.165 governs proof and enforcement of the fine.
(4) Administrative fines collected under this section must be
deposited in the health professions account created in RCW 43.70.320.
(5) Issuance of a citation under this section does not preclude the
disciplining authority from pursuing other action under this chapter.
(6) The disciplining authority shall establish and make available
to licensees the maximum daily monetary fine that may be issued under
subsection (2)(c) of this section. The disciplining authority shall
review the maximum fine on a regular basis, but at a minimum, each
biennium.
Sec. 21 RCW 18.130.140 and 1984 c 279 s 14 are each amended to
read as follows:
An individual who has been disciplined ((or)), whose license has
been denied, or whose license has been granted with conditions by a
disciplining authority may appeal the decision as provided in chapter
34.05 RCW.
Sec. 22 RCW 18.130.150 and 1997 c 58 s 831 are each amended to
read as follows:
A person whose license has been suspended ((or revoked)) under this
chapter may petition the disciplining authority for reinstatement after
an interval as determined by the disciplining authority in the order
unless the disciplining authority has found, pursuant to RCW
18.130.160, that the licensee can never be rehabilitated or can never
regain the ability to practice with reasonable skill and safety. The
disciplining authority shall hold hearings on the petition and may deny
the petition or may order reinstatement and impose terms and conditions
as provided in RCW 18.130.160 and issue an order of reinstatement. The
disciplining authority may require successful completion of an
examination as a condition of reinstatement.
A person whose license has been suspended for noncompliance with a
support order or ((a residential or)) visitation order under RCW
74.20A.320 may petition for reinstatement at any time by providing the
secretary a release issued by the department of social and health
services stating that the person is in compliance with the order. If
the person has continued to meet all other requirements for
reinstatement during the suspension, the secretary shall automatically
reissue the person's license upon receipt of the release, and payment
of a reinstatement fee, if any.
Sec. 23 RCW 18.130.165 and 1993 c 367 s 20 are each amended to
read as follows:
Where an order for payment of a fine is made as a result of a
citation under section 20 of this act or a hearing under RCW 18.130.100
or 18.130.190 and timely payment is not made as directed in the final
order, the disciplining authority may enforce the order for payment in
the superior court in the county in which the hearing was held. This
right of enforcement shall be in addition to any other rights the
disciplining authority may have as to any licensee ordered to pay a
fine but shall not be construed to limit a licensee's ability to seek
judicial review under RCW 18.130.140.
In any action for enforcement of an order of payment of a fine, the
disciplining authority's order is conclusive proof of the validity of
the order of payment of a fine and the terms of payment.
Sec. 24 RCW 18.130.172 and 2000 c 171 s 29 are each amended to
read as follows:
(1) Prior to serving a statement of charges under RCW 18.130.090 or
18.130.170, the disciplinary authority 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 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 acknowledgment 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 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 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 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, 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. 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 may seek collection of the amount agreed to be paid in the
same manner as enforcement of a fine under RCW 18.130.165.
Sec. 25 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;
(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, records, or other
items;
(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. 26 RCW 9.96A.020 and 1999 c 16 s 1 are each amended to read
as follows:
(1) Subject to the exceptions in subsections (3) and (4) of this
section, and unless there is another provision of law to the contrary,
a person is not disqualified from employment by the state of Washington
or any of its counties, cities, towns, municipal corporations, or
quasi-municipal corporations, nor is a person disqualified to practice,
pursue or engage in any occupation, trade, vocation, or business for
which a license, permit, certificate or registration is required to be
issued by the state of Washington or any of its counties, cities,
towns, municipal corporations, or quasi-municipal corporations solely
because of a prior conviction of a felony. However, this section does
not preclude the fact of any prior conviction of a crime from being
considered.
(2) A person may be denied employment by the state of Washington or
any of its counties, cities, towns, municipal corporations, or quasi-municipal corporations, or a person may be denied a license, permit,
certificate or registration to pursue, practice or engage in an
occupation, trade, vocation, or business by reason of the prior
conviction of a felony if the felony for which he or she was convicted
directly relates to the position of employment sought or to the
specific occupation, trade, vocation, or business for which the
license, permit, certificate or registration is sought, and the time
elapsed since the conviction is less than ten years. However, for
positions in the county treasurer's office, a person may be
disqualified from employment because of a prior guilty plea or
conviction of a felony involving embezzlement or theft, even if the
time elapsed since the guilty plea or conviction is ten years or more.
(3) A person is disqualified for any certificate required or
authorized under chapters 28A.405 or 28A.410 RCW, because of a prior
guilty plea or the conviction of a felony involving sexual exploitation
of a child under chapter 9.68A RCW, sexual offenses under chapter 9A.44
RCW where a minor is the victim, promoting prostitution of a minor
under chapter 9A.88 RCW, or a violation of similar laws of another
jurisdiction, even if the time elapsed since the guilty plea or
conviction is ten years or more.
(4) A person is disqualified from employment by school districts,
educational service districts, and their contractors hiring employees
who will have regularly scheduled unsupervised access to children,
because of a prior guilty plea or conviction of a felony involving
sexual exploitation of a child under chapter 9.68A RCW, sexual offenses
under chapter 9A.44 RCW where a minor is the victim, promoting
prostitution of a minor under chapter 9A.88 RCW, or a violation of
similar laws of another jurisdiction, even if the time elapsed since
the guilty plea or conviction is ten years or more.
(5) The provisions of this chapter do not apply to issuance of
licenses or credentials for professions regulated under chapter 18.130
RCW.
(6) Subsections (3) and (4) of this section only apply to a person
applying for a certificate or for employment on or after July 25, 1993.
Subsection (5) of this section only applies to a person applying for a
license or credential on or after the effective date of this section.
Sec. 27 RCW 9.95.240 and 2003 c 66 s 1 are each amended to read
as follows:
(1) Every defendant who has fulfilled the conditions of his or her
probation for the entire period thereof, or who shall have been
discharged from probation prior to the termination of the period
thereof, may at any time prior to the expiration of the maximum period
of punishment for the offense for which he or she has been convicted be
permitted in the discretion of the court to withdraw his or her plea of
guilty and enter a plea of not guilty, or if he or she has been
convicted after a plea of not guilty, the court may in its discretion
set aside the verdict of guilty; and in either case, the court may
thereupon dismiss the information or indictment against such defendant,
who shall thereafter be released from all penalties and disabilities
resulting from the offense or crime of which he or she has been
convicted. The probationer shall be informed of this right in his or
her probation papers: PROVIDED, That in any subsequent prosecution,
for any other offense, such prior conviction may be pleaded and proved,
and shall have the same effect as if probation had not been granted, or
the information or indictment dismissed.
(2)(a) After the period of probation has expired, the defendant may
apply to the sentencing court for a vacation of the defendant's record
of conviction under RCW 9.94A.640. The court may, in its discretion,
clear the record of conviction if it finds the defendant has met the
equivalent of the tests in RCW 9.94A.640(2) as those tests would be
applied to a person convicted of a crime committed before July 1, 1984.
(b) The clerk of the court in which the vacation order is entered
shall immediately transmit the order vacating the conviction to the
Washington state patrol identification section and to the local police
agency, if any, which holds criminal history information for the person
who is the subject of the conviction. The Washington state patrol and
any such local police agency shall immediately update their records to
reflect the vacation of the conviction, and shall transmit the order
vacating the conviction to the federal bureau of investigation. A
conviction that has been vacated under this section may not be
disseminated or disclosed by the state patrol or local law enforcement
agency to any person, except other criminal justice enforcement
agencies.
(3) This section does not apply to chapter 18.130 RCW.
Sec. 28 RCW 43.43.825 and 2006 c 99 s 8 are each amended to read
as follows:
(1) Upon a guilty plea or conviction of a person for any felony
crime involving homicide under chapter 9A.32 RCW, assault under chapter
9A.36 RCW, kidnapping under chapter 9A.40 RCW, ((or)) sex offenses
under chapter 9A.44 RCW, financial crimes under chapter 9A.60 RCW,
violations of the uniform controlled substances act under chapter 69.50
RCW, any drug offense defined under RCW 9.94A.030, or a crime of any
type classified as a felony under Washington state law, the prosecuting
attorney shall notify the state patrol of such guilty pleas or
convictions.
(2) When the state patrol receives information that a person has
pled guilty to or been convicted of one of the felony crimes under
subsection (1) of this section, the state patrol shall transmit that
information to the department of health. It is the duty of the
department of health to identify whether the person holds a credential
issued by a disciplining authority listed under RCW 18.130.040, and
provide this information to the disciplining authority that issued the
credential to the person who pled guilty or was convicted of a crime
listed in subsection (1) of this section.
NEW SECTION. Sec. 29 Section 17 of this act expires July 1,
2008.
NEW SECTION. Sec. 30 Section 18 of this act takes effect July 1,
2008.
NEW SECTION. Sec. 31 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.
NEW SECTION. Sec. 32 The code reviser is directed to put the
defined terms in RCW 18.130.020 in alphabetical order.
NEW SECTION. Sec. 33 Except for sections 2 and 18 of this act,
which take effect July 1, 2008, and for section 7 of this act, which
takes effect January 1, 2009, this act is necessary for the immediate
preservation of the public peace, health, or safety, or support of the
state government and its existing public institutions, and takes effect
immediately.