BILL REQ. #:  H-0255.2 

Read first time 01/24/13.   Referred to Committee on Government Accountability & Oversight.

     AN ACT Relating to administrative adjudicatory proceedings coming before the department of health; amending RCW 18.130.050, 18.130.095, 18.130.100, 69.45.080, 69.50.305, 70.05.120, and 34.12.030; adding a new section to chapter 43.70 RCW; adding new sections to chapter 18.130 RCW; and adding a new section to chapter 34.12 RCW.

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

Sec. 1   RCW 18.130.050 and 2008 c 134 s 3 are each amended to read as follows:
     Except as provided in RCW 18.130.062, 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;
     (3) To hold hearings as provided in this chapter;
     (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;
     (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;
     (6) To compel attendance of witnesses at hearings;
     (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 RCW 18.130.230;
     (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 RCW 18.130.135. 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;
     (9) To conduct show cause hearings in accordance with RCW 18.130.062 or 18.130.135 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;
     (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;
     (((12))) (11) To enter into contracts for professional services determined to be necessary for adequate enforcement of this chapter;
     (((13))) (12) To contract with license holders or other persons or organizations to provide services necessary for the monitoring and supervision of 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;
     (((14))) (13) To adopt standards of professional conduct or practice;
     (((15))) (14) 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 RCW 18.130.390;
     (((16))) (15) 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))) (16) To designate individuals authorized to sign subpoenas and statements of charges;
     (((18))) (17) 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;
     (((19))) (18) To review and audit the records of licensed health facilities' or services' quality assurance committee decisions in which a 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. 2   RCW 18.130.095 and 2008 c 134 s 9 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 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 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 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 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. The presiding officer shall not vote on or make any final decision in cases pertaining to standards of practice or where clinical expertise is necessary. 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)) the office of administrative hearings under RCW 18.130.100(2) to determine and issue decisions on all legal issues and motions arising during adjudicative proceedings.

Sec. 3   RCW 18.130.100 and 1989 c 175 s 69 are each amended to read as follows:
     (1) The procedures governing adjudicative proceedings before agencies under chapter 34.05 RCW, the administrative procedure act, govern all hearings before the disciplining authority. The disciplining authority has, in addition to the powers and duties set forth in this chapter, all of the powers and duties under chapter 34.05 RCW, which include, without limitation, all powers relating to the administration of oaths, the receipt of evidence, the issuance and enforcing of subpoenas, and the taking of depositions.
     (2)(a) In all adjudicative proceedings held under this chapter, a disciplining authority identified in RCW 18.130.040(2)(b) shall use the office of administrative hearings as authorized in chapter 34.12 RCW. The disciplining authority shall make the final decision regarding the disposition of the license unless the disciplining authority elects to delegate in writing the final decision to the presiding officer. The disciplining authority may not delegate the final decision regarding disposition of the license or imposition of sanctions in any case pertaining to standards of practice or where clinical expertise is necessary.
     (b) In all adjudicative proceedings held under this chapter, the secretary shall use the office of administrative hearings as authorized in chapter 34.12 RCW. An administrative law judge appointed under RCW 34.12.030 shall enter an initial order pursuant to RCW 34.05.461 subject to review by the secretary or his or her designee. Pursuant to RCW 34.05.464, the secretary may, by rule, provide that initial orders in specified classes of cases may become final without further agency action, unless, within a specified time period:
     (i) The secretary upon his or her own motion determines that the initial order should be reviewed; or
     (ii) A party to the proceedings files a petition for administrative review of the initial order.

NEW SECTION.  Sec. 4   A new section is added to chapter 43.70 RCW to read as follows:
     In all adjudicative proceedings before the secretary or the department, the secretary shall use the office of administrative hearings as authorized in chapter 34.12 RCW. An administrative law judge appointed under RCW 34.12.030 shall enter an initial order pursuant to RCW 34.05.461 subject to review by the secretary or his or her designee. Pursuant to RCW 34.05.464, the secretary may, by rule, provide that initial orders in specified classes of cases may become final without further agency action, unless, within a specified time period:
     (1) The secretary upon his or her own motion determines that the initial order should be reviewed; or
     (2) A party to the proceedings files a petition for administrative review of the initial order.

Sec. 5   RCW 69.45.080 and 1987 c 411 s 8 are each amended to read as follows:
     (1) The manufacturer is responsible for the actions and conduct of its representatives with regard to drug samples.
     (2) The board may hold a public hearing to examine a possible violation and may require a designated representative of the manufacturer to attend.
     (3)(a) If a manufacturer fails to comply with this chapter following notification by the board, the board may impose a civil penalty of up to five thousand dollars. The board shall take no action to impose any civil penalty except pursuant to a hearing held in accordance with chapter 34.05 RCW.
     (b) In all adjudicative proceedings held under this section, the board shall use the office of administrative hearings as authorized in chapter 34.12 RCW. The board shall make the final decision unless it elects to delegate in writing the final decision to the presiding officer.
     (4) Specific drug samples which are distributed in this state in violation of this chapter, following notification by the board, shall be subject to seizure following the procedures set out in RCW 69.41.060.

Sec. 6   RCW 69.50.305 and 1971 ex.s. c 308 s 69.50.305 are each amended to read as follows:
     (a) Any registration, or exemption from registration, issued pursuant to the provisions of this chapter shall not be denied, suspended, or revoked unless the board denies, suspends, or revokes such registration, or exemption from registration, by proceedings consistent with the administrative procedure act, chapter 34.05 RCW.
     (b) The board may suspend any registration simultaneously with the institution of proceedings under RCW 69.50.304, or where renewal of registration is refused, if it finds that there is an imminent danger to the public health or safety which warrants this action. The suspension shall continue in effect until the conclusion of the proceedings, including judicial review thereof, unless sooner withdrawn by the board or dissolved by a court of competent jurisdiction.
     (c) In all adjudicative proceedings held under this section, the board shall use the office of administrative hearings as authorized in chapter 34.12 RCW. The board shall make the final decision unless it elects to delegate in writing the final decision to the presiding officer.

Sec. 7   RCW 70.05.120 and 2003 c 53 s 350 are each amended to read as follows:
     (1) Any local health officer or administrative officer appointed under RCW 70.05.040, if any, who shall refuse or neglect to obey or enforce the provisions of chapters 70.05, 70.24, and 70.46 RCW or the rules, regulations or orders of the state board of health or who shall refuse or neglect to make prompt and accurate reports to the state board of health, may be removed as local health officer or administrative officer by the state board of health and shall not again be reappointed except with the consent of the state board of health. Any person may complain to the state board of health concerning the failure of the local health officer or administrative officer to carry out the laws or the rules and regulations concerning public health, and the state board of health shall, if a preliminary investigation so warrants, call a hearing to determine whether the local health officer or administrative officer is guilty of the alleged acts. Such hearings shall be held pursuant to the provisions of chapter 34.05 RCW, and the rules and regulations of the state board of health adopted thereunder. In all adjudicative proceedings held under this section, the state board of health shall use the office of administrative hearings as authorized in chapter 34.12 RCW. The state board of health shall make the final decision unless it elects to delegate in writing the final decision to the presiding officer.
     (2) Any member of a local board of health who shall violate any of the provisions of chapters 70.05, 70.24, and 70.46 RCW or refuse or neglect to obey or enforce any of the rules, regulations or orders of the state board of health made for the prevention, suppression or control of any dangerous contagious or infectious disease or for the protection of the health of the people of this state, is guilty of a misdemeanor, and upon conviction shall be fined not less than ten dollars nor more than two hundred dollars.
     (3) Any physician who shall refuse or neglect to report to the proper health officer or administrative officer within twelve hours after first attending any case of contagious or infectious disease or any diseases required by the state board of health to be reported or any case suspicious of being one of such diseases, is guilty of a misdemeanor, and upon conviction shall be fined not less than ten dollars nor more than two hundred dollars for each case that is not reported.
     (4) Any person violating any of the provisions of chapters 70.05, 70.24, and 70.46 RCW or violating or refusing or neglecting to obey any of the rules, regulations or orders made for the prevention, suppression and control of dangerous contagious and infectious diseases by the local board of health or local health officer or administrative officer or state board of health, or who shall leave any isolation hospital or quarantined house or place without the consent of the proper health officer or who evades or breaks quarantine or conceals a case of contagious or infectious disease or assists in evading or breaking any quarantine or concealing any case of contagious or infectious disease, is guilty of a misdemeanor, and upon conviction thereof shall be subject to a fine of not less than twenty-five dollars nor more than one hundred dollars or to imprisonment in the county jail not to exceed ninety days or to both fine and imprisonment.

NEW SECTION.  Sec. 8   A new section is added to chapter 18.130 RCW to read as follows:
     The secretary of health, the state board of health, and each disciplining authority, as defined in RCW 18.130.020, shall adopt any rules necessary to implement chapter . . ., Laws of 2013 (this act).

NEW SECTION.  Sec. 9   A new section is added to chapter 18.130 RCW to read as follows:
     (1) All employees of the department of health serving as presiding officers in the department's adjudicative proceedings prior to the effective date of this section, and any administrative staff necessary to support the presiding officers, are transferred to the office of administrative hearings. The number of administrative staff who are transferred shall be determined by the department of health and the office of administrative hearings based on anticipated workload. Any such employees classified under chapter 41.06 RCW, the state civil service law, are assigned to the office of administrative hearings to perform their usual duties upon the same terms as formerly, without any loss of rights, subject to any action that may be appropriate thereafter in accordance with the laws and rules governing state civil service.
     (2) Except for those employees explicitly made subject to transfer to the office of administrative hearings from the department of health pursuant to this section, the transfer of employees required under this section shall not result in any increase in the total number of full-time employees employed by the office of administrative hearings.
     (3) The department of health shall not increase its number of full-time employees as the result of, or in response to, the transfer of employees required under this section.
     (4) Unless or until modified by the public employment relations commission pursuant to section 10 of this act:
     (a) The portion of the bargaining unit of employees at the department of health existing on the effective date of this section shall be considered an appropriate unit at the office of administrative hearings and will be so certified by the public employment relations commission.
     (b) The exclusive bargaining representatives recognized as representing the portion of the bargaining unit of employees at the department of health existing on the effective date of this section shall continue as the exclusive bargaining representatives of the transferred bargaining unit without the necessity of an election.

NEW SECTION.  Sec. 10   A new section is added to chapter 34.12 RCW to read as follows:
     (1) By January 1, 2014, the public employment relations commission may review the appropriateness of the collective bargaining unit transferred under section 9 of this act. The employer or the exclusive bargaining representative may petition the public employment relations commission to review the bargaining unit in accordance with this section.
     (2) If the commission determines the existing collective bargaining unit is appropriate pursuant to RCW 41.80.070, the exclusive bargaining representative certified to represent the bargaining unit prior to January 1, 2014, shall continue as the exclusive bargaining representative without the necessity of an election.
     (3) If the commission determines that the existing collective bargaining unit is not appropriate, the commission may modify the unit and order an election pursuant to RCW 41.80.080. The certified bargaining representative will not be required to demonstrate a showing of interest to be included on the ballot.
     (4) The commission may require an election pursuant to RCW 41.80.080 if similarly situated employees are represented by more than one employee organization. Certified bargaining representatives will not be required to demonstrate a showing of interest to be included on the ballot.

Sec. 11   RCW 34.12.030 and 1981 c 67 s 3 are each amended to read as follows:
     (1) The chief administrative law judge shall appoint administrative law judges to fulfill the duties prescribed in this chapter. All administrative law judges shall have a demonstrated knowledge of administrative law and procedures. ((The chief administrative law judge may establish different levels of administrative law judge positions.))
     (2) The chief administrative law judge may also contract with qualified individuals to serve as administrative law judges for specified hearings. Such individuals shall be compensated for their services on a contractual basis for each hearing, in accordance with chapter 43.88 RCW. Contracts authorized under this section are not subject to the processes in RCW 41.06.142 (1), (4), and (5). The chief administrative law judge may not contract with any individual who is at that time an employee of the state.
     (3) The chief administrative law judge may appoint such clerical and other specialized or technical personnel as may be necessary to carry on the work of this chapter.
     (4) ((The administrative law judges appointed under subsection (1) of this section are subject to discipline and termination, for cause, by the chief administrative law judge. Upon written request by the person so disciplined or terminated, the chief administrative law judge shall forthwith put the reasons for such action in writing. The person affected has a right of review by the superior court of Thurston county on petition for reinstatement or other remedy filed within thirty days of receipt of such written reasons.
     (5))) All employees of the office except the chief administrative law judge ((and the administrative law judges)) are subject to chapter 41.06 RCW.
     (((6))) (5) The office may adopt rules for its own operation and in furtherance of this chapter in accordance with chapter 34.05 RCW.