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AN ACT Relating to health care and disciplinary actions for health care providers; authorizing expanded health care practices; creating a new section; amending RCW 18.130; providing an effective date; and declaring an emergency. 

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

NEW SECTION Sec 1.  RCW Chapter 18 is amended to read as follows:

This chapter may be cited as the “Patient Choice in Health Care Act.”

RCW 18.____   Purpose.

The purpose of this chapter is:

(1)  to protect a person’s right to seek health care of their choice;

(2) to assure the people of the state of Washington that they maintain access to all health care options including conventional treatment methods as well as other treatment modalities designed to complement or substitute for conventional treatment methods; and

(3) to permit health care professionals licensed, certified or registered by the state of Washington to offer expanded and complementary or alternative health care treatments in accordance with this chapter.

RCW 18.        Definitions.

For the purpose of this chapter the terms in this section have the meanings given.

(2)  “Expanded health care practices and services” means health care and healing methods, modalities, treatments, procedures, or protocols which have not been generally adopted by a profession, or which are not generally considered to be within the prevailing minimum standards of care of a profession, or that are not standard practices of a profession in a particular community.

(3)  “Licensed health care practitioner” means a health care practitioner licensed, certified or registered by the state of Washington to practice a health care profession under a licensing board or the Department of Health.

(4) “Patient” shall include a patient’s parent, guardian or conservator, as appropriate.

RCW 18.        Right to Provide Expanded Health Care.

Notwithstanding any other Washington statutes, administrative rules, and other laws governing or authorizing health-related professionals to practice their professions, a licensed health care practitioner may provide expanded health care practices and services to patients as long as:

(1)  The provider reasonably believes that the treatments or services have a reasonable basis for potential benefit to the patient;

(2) the treatment or services do not pose a substantially greater risk of direct and significant physical or emotional harm to a patient, when used as directed, than that of conventional treatment that would have been recommended;

(3)  the treatment or services are provided with reasonable skill and safety according to the practitioner’s knowledge, education, experience, and training in the expanded health care practice or service; and

(4)  the practitioner complies with the disclosures set forth in RCW 18._[directly below] of this Act.

RCW 18.        Disclosure Guidelines for Expanded Practice.

Prior to administering or treating a patient with an expanded health care practice or service, a practitioner shall:

(1)  disclose in writing to the patient that a proposed health care treatment or service is a

treatment modality designed to complement or substitute for conventional treatment methods;

 (2) obtain informed consent from the patient according to Washington law for providing medical treatments; and

(3)  obtain written acknowledgment from the patient that the patient/ has received the information required by this section.

RCW 18.        Evidence; Complaints; Investigations; Burden of Proof.

(1)  Experts; Knowledge and Competency.  Notwithstanding, RCW 18.130.080, for any investigation or disciplinary proceeding regarding a healing act or health care practitioner for performance of expanded health care practices and services, the authorized licensing board or regulatory authority shall use experts who have comparable specialized knowledge, training, and clinical occupational experience in the practice method or treatment used by the practitioner being investigated.    The expert must devote the majority of expert’s practice to methodologies or treatment used by the practitioner being investigated.  The expert’s active medical practice or teaching experience must have been within five years of the date of the occurrence giving rise to the disciplinary proceeding.  If an expert fails to meet these requirements, the expert is not acting in good faith.

(2)  Complaints; Investigations.  

(a)  Notwithstanding any provisions of RCW 18, a complainant or the complainant’s guardian or legal representative must sign a written complaint to the disciplining authority regarding unprofessional conduct, if the complaint is based on use of expanded and complementary or alternative health care treatments.  The members of the disciplining authority must determine as to each complaint that there is probable cause to merit an investigation of the allegations in the complaint by the disciplining authority.

(b)  A practitioner practicing in compliance with this Act may not have his license or registration revoked, suspended, or conditioned, or have any other form of reprimand imposed upon him, or be denied a license, certification or registration based on the fact that he:

(i)  recommended or utilized expanded health care practices; or

(ii)  referred a patient to, or co-managed a patient/client with, a practitioner of expanded health care practices or a practitioner who is practicing in compliance with this Act or any other provision of state law.

            (c)  A complaint against a license holder or applicant based solely on the use of a procedure, in the absence of any proof of harm to a patient, shall not be in good faith and such a complainant is not immune from suit in a civil action as provided in RCW 18.120.080(3).

(3)  Burden of Proof.  In any proceeding under this section, the authorized licensing board or regulatory authority having jurisdiction over the practitioner bears the burden of proof regarding the practitioner’s deviation from the requirements  set out in this chapter and must prove a violation of this chapter by clear and convincing evidence.

Sec. 2.  RCW 18.130.180  is 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] procedure 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] and the patient has signed a writing that complies with the requirements set forth in RCW 7.70.060.  The writing shall constitute prima facie evidence that the patient gave his or her consent to the treatment that is the subject of the complaint;

            (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 the controlled substances or legend drugs in any way other than for legitimate or therapeutic purposes, diversion of controlled substances or legend drugs, the violation of any drug law, or prescribing controlled substances for oneself;

            (7) Violation of any state or federal statute or administrative rule regulating the profession in question, including any statute or rule defining or establishing standards of patient care or professional conduct or practice;

            (8)  Failure to cooperate with the disciplining authority by:

            (a)  Not furnishing any papers or documents;

            (b)  Not furnishing in writing a full and complete explanation covering the matter contained in the complaint filed with the disciplining authority;

            (c)  Not responding to subpoenas issued by the disciplining authority, whether or not the recipient of the subpoena is the accused in the proceeding; or

            (d)  Not providing reasonable and timely access for authorized representatives of the disciplining authority seeking to perform practice reviews at facilities utilized by the license holder;

            (9)  Failure to comply with an order issued by the disciplining authority or a stipulation for informal disposition entered into with the disciplining authority;

            (10)  Aiding or abetting an unlicensed person to practice when a license is required;

            (11)  Violations of rules established by any health agency;

            (12)  Practice beyond the scope of practice as defined by law or rule;

            (13)  Misrepresentation or fraud in any aspect of the conduct of the business or profession;

            (14)  Failure to adequately supervise auxiliary staff to the extent that the consumer’s health or safety is at risk;

            (15)  Engaging in a profession involving contact with the public while suffering from a contagious or infectious disease involving serious risk to public health;

            (16)  Promotion for personal gain of any unnecessary or inefficacious drug, device, treatment, procedure, or service;

            (17)  Conviction of any gross misdemeanor or felony relating to the practice of the person’s profession.  For the purposes of this subsection, conviction includes all instances in which a plea of guilty or nolo contendere is the basis for conviction and all proceedings in which the sentence has been deferred or suspended.  Nothing in this section abrogates rights guaranteed under chapter 9.96A RCW;

            (18)  The procuring, or aiding or abetting in procuring, a criminal abortion;

            (19)  The offering, undertaking, or agreeing to cure or treat disease by a secret method, procedure, treatment, or medicine, or the treating, operating, or prescribing for any health condition by a method, means, or procedure which the licensee refuses to divulge upon demand of the disciplining authority;

            (20)  The willful betrayal of a practitioner-patient privilege as recognized by law;

            (21)  Violation of chapter 19.68 RCW;

            (22)  Interference with an investigation or disciplinary proceeding by willful misrepresentation of facts before the disciplining authority or its authorized representative, or by the use of threats or harassment against any patient or witness to prevent them from providing evidence in a disciplinary proceeding or any other legal action, or by the use of financial inducements to any patient or witness to prevent or attempt to prevent him or her from providing evidence in a disciplinary proceeding;

            (23)  Current misuse of:

            (a)  Alcohol;

            (b)  Controlled substances; or

            (c)  Legend drugs;

            (24)  Abuse of a client or patient or sexual contact with a client or patient;

            (25)  acceptance of more than a nominal gratuity, hospitality, or subsidy offered by a representative or vendor of medical or health-related products or services intended for patients, in contemplation of a sale or for use in research publishable in professional journals, where a conflict of interest is presented, as defined by rules of the disciplining authority, in consultation with the department, based on recognized professional ethical standards.

Sec 3.   RCW 18.130 .020 is amended to read as follows: 

            Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

            (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)  “Commission” means any of the commissions specified in RCW 18.130.040.

            (6)  “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 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)  “Disciplinary action” means sanctions identified in RCW 18.130.160.

            (8)  “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)  “Health agency” means city and county health departments and the department of health.

            (10)  “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.

            (11)  “False, fraudulent, or misleading advertising” means a statement that includes a misrepresentation of fact that is likely to mislead or deceive because of a failure to disclose material facts, that is intended or likely to create false or unjustified expectations of favorable results, or that includes representations or implications that in reasonable probability will cause an ordinarily prudent person to misunderstand or to be deceived.

NEW SECTION.   Sec. 4.  Any pending investigations or disciplinary actions involving licensed practitioners that could not be brought under the provisions of this Act must be dismissed.  Any disciplinary sanctions that have been imposed that could not have been imposed under the provisions of this Act are revoked and must be expunged without application by the licensed health care practitioner within sixty days of the effective date of this Act.  Any fines or fees paid shall be refunded.  To this extent, this Act applies retroactively, but in all other respects it applies prospectively.

NEW SECTION.  Sec. 5.   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 thirty days after passage.

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