Bill Summary – FastDemocracy

Enrolled Copy                                                                              S.B. 171
           HEALTH CARE PRACTITIONER LIABILITY AMENDMENTS
                                        2023 GENERAL SESSION
                                            STATE OF UTAH
                                Chief Sponsor: Kirk A. Cullimore
                                House Sponsor: Karianne Lisonbee
 6
 LONG TITLE
 General Description:
         This bill modifies a health care provider's liability under certain circumstances.
 Highlighted Provisions:
         This bill:
         < modifies the duty of care, under certain circumstances, for a health care provider
 who deviates from medical norms or established practices;
         < prohibits the Division of Professional Licensing from sanctioning a health care
 provider's license for deviating from medical norms or established practices under
 certain circumstances;
         < allows a health care provider who deviates from medical norms or established
 practices to advertise if certain criteria are met; and
         < makes technical changes.
 Money Appropriated in this Bill:
         None
 Other Special Clauses:
         None
 Utah Code Sections Affected:
 AMENDS:
         58-1-501, as last amended by Laws of Utah 2020, Chapters 289, 339
         58-17b-502, as last amended by Laws of Utah 2022, Chapter 465
 ENACTS:
         78B-3-428, Utah Code Annotated 1953
       S.B. 171                                                                         Enrolled Copy
30
 Be it enacted by the Legislature of the state of Utah:
         Section 1. Section 58-1-501 is amended to read:
         58-1-501. Unlawful and unprofessional conduct.
         (1) "Unlawful conduct" means conduct, by any person, that is defined as unlawful
 under this title and includes:
         (a) practicing or engaging in, representing oneself to be practicing or engaging in, or
 attempting to practice or engage in any occupation or profession requiring licensure under this
 title if the person is:
         (i) not licensed to do so or not exempted from licensure under this title; or
         (ii) restricted from doing so by a suspended, revoked, restricted, temporary,
 probationary, or inactive license;
         (b) (i) impersonating another licensee or practicing an occupation or profession under a
 false or assumed name, except as permitted by law; or
         (ii) for a licensee who has had a license under this title reinstated following disciplinary
 action, practicing the same occupation or profession using a different name than the name used
 before the disciplinary action, except as permitted by law and after notice to, and approval by,
 the division;
         (c) knowingly employing any other person to practice or engage in or attempt to
 practice or engage in any occupation or profession licensed under this title if the employee is
 not licensed to do so under this title;
         (d) knowingly permitting the person's authority to practice or engage in any occupation
 or profession licensed under this title to be used by another, except as permitted by law;
         (e) obtaining a passing score on a licensure examination, applying for or obtaining a
 license, or otherwise dealing with the division or a licensing board through the use of fraud,
 forgery, or intentional deception, misrepresentation, misstatement, or omission;
         (f) (i) issuing, or aiding and abetting in the issuance of, an order or prescription for a
 drug or device to a person located in this state:
                                                         -2-
       Enrolled Copy                                                                               S.B. 171
          (A) without prescriptive authority conferred by a license issued under this title, or by
 an exemption to licensure under this title; or
          (B) with prescriptive authority conferred by an exception issued under this title or a
 multistate practice privilege recognized under this title, if the prescription was issued without
 first obtaining information, in the usual course of professional practice, that is sufficient to
 establish a diagnosis, to identify underlying conditions, and to identify contraindications to the
 proposed treatment; and
          (ii) Subsection (1)(f)(i) does not apply to treatment rendered in an emergency, on-call
 or cross coverage situation, provided that the person who issues the prescription has
 prescriptive authority conferred by a license under this title, or is exempt from licensure under
 this title; or
          (g) aiding or abetting any other person to violate any statute, rule, or order regulating
 an occupation or profession under this title.
          (2) (a) "Unprofessional conduct" means conduct, by a licensee or applicant, that is
 defined as unprofessional conduct under this title or under any rule adopted under this title and
 includes:
          [(a)] (i) violating any statute, rule, or order regulating an occupation or profession
 under this title;
          [(b)] (ii) violating, or aiding or abetting any other person to violate, any generally
 accepted professional or ethical standard applicable to an occupation or profession regulated
 under this title;
          [(c)] (iii) subject to the provisions of Subsection (4), engaging in conduct that results in
 conviction, a plea of nolo contendere, or a plea of guilty or nolo contendere that is held in
 abeyance pending the successful completion of probation with respect to a crime of moral
 turpitude or any other crime that, when considered with the functions and duties of the
 occupation or profession for which the license was issued or is to be issued, bears a substantial
 relationship to the licensee's or applicant's ability to safely or competently practice the
 occupation or profession;
                                                       -3-
        S.B. 171                                                                        Enrolled Copy
        [(d)] (iv) engaging in conduct that results in disciplinary action, including reprimand,
 censure, diversion, probation, suspension, or revocation, by any other licensing or regulatory
 authority having jurisdiction over the licensee or applicant in the same occupation or profession
 if the conduct would, in this state, constitute grounds for denial of licensure or disciplinary
 proceedings under Section 58-1-401;
        [(e)] (v) engaging in conduct, including the use of intoxicants, drugs, narcotics, or
 similar chemicals, to the extent that the conduct does, or might reasonably be considered to,
 impair the ability of the licensee or applicant to safely engage in the occupation or profession;
        [(f)] (vi) practicing or attempting to practice an occupation or profession regulated
 under this title despite being physically or mentally unfit to do so;
        [(g)] (vii) practicing or attempting to practice an occupation or profession regulated
 under this title through gross incompetence, gross negligence, or a pattern of incompetency or
 negligence;
        [(h)] (viii) practicing or attempting to practice an occupation or profession requiring
 licensure under this title by any form of action or communication which is false, misleading,
 deceptive, or fraudulent;
        [(i)] (ix) practicing or attempting to practice an occupation or profession regulated
 under this title beyond the scope of the licensee's competency, abilities, or education;
        [(j)] (x) practicing or attempting to practice an occupation or profession regulated
 under this title beyond the scope of the licensee's license;
        [(k)] (xi) verbally, physically, mentally, or sexually abusing or exploiting any person
 through conduct connected with the licensee's practice under this title or otherwise facilitated
 by the licensee's license;
        [(l)] (xii) acting as a supervisor without meeting the qualification requirements for that
 position that are defined by statute or rule;
        [(m)] (xiii) issuing, or aiding and abetting in the issuance of, an order or prescription
 for a drug or device:
        [(i)] (A) without first obtaining information in the usual course of professional
                                                       -4-
        Enrolled Copy                                                                              S.B. 171
 practice, that is sufficient to establish a diagnosis, to identify conditions, and to identify
 contraindications to the proposed treatment; or
         [(ii)] (B) with prescriptive authority conferred by an exception issued under this title,
 or a multi-state practice privilege recognized under this title, if the prescription was issued
 without first obtaining information, in the usual course of professional practice, that is
 sufficient to establish a diagnosis, to identify underlying conditions, and to identify
 contraindications to the proposed treatment;
         [(n)] (xiv) violating a provision of Section 58-1-501.5; or
         [(o)] (xv) violating the terms of an order governing a license.
         (b) "Unprofessional conduct" does not include:
         (i) a health care provider, as defined in Section 78B-3-403 and who is licensed under
 this title, deviating from medical norms or established practices if the conditions described in
 Subsection (5) are met; and
         (ii) notwithstanding Section 58-1-501.6, a health care provider advertising that the
 health care provider deviates from medical norms or established practices, including the
 maladies the health care provider treats, if the health care provider:
         (A) does not guarantee any results regarding any health care service;
         (B) fully discloses on the health care provider's website that the health care provider
 deviates from medical norms or established practices with a conspicuous statement; and
         (C) includes the health care provider's contact information on the website.
         (3) Unless otherwise specified by statute or administrative rule, in a civil or
 administrative proceeding commenced by the division under this title, a person subject to any
 of the unlawful and unprofessional conduct provisions of this title is strictly liable for each
 violation.
         (4) The following are not evidence of engaging in unprofessional conduct under
 Subsection [(2)(c)] (2)(a)(iii):
         (a) an arrest not followed by a conviction; or
         (b) a conviction for which an individual's incarceration has ended more than seven
                                                        -5-
        S.B. 171                                                                         Enrolled Copy
 years before the date of the division's consideration, unless:
        (i) after the incarceration the individual has engaged in additional conduct that results
 in another conviction, a plea of nolo contendere, or a plea of guilty or nolo contendere that is
 held in abeyance pending the successful completion of probation; or
        (ii) the conviction was for:
        (A) a violent felony as defined in Section 76-3-203.5;
        (B) a felony related to a criminal sexual act pursuant to Title 76, Chapter 5, Part 4,
 Sexual Offenses, or Title 76, Chapter 5b, Sexual Exploitation Act; or
        (C) a felony related to criminal fraud or embezzlement, including a felony pursuant to
 Title 76, Chapter 6, Part 5, Fraud, or Title 76, Chapter 6, Part 4, Theft.
        (5) In accordance with Subsection (2)(b)(i), a health care provider may deviate from
 medical norms or established practices if:
        (a) the health care provider does not deviate outside of the health care provider's scope
 of practice and possesses the education, training, and experience to competently and safely
 administer the alternative health care service;
        (b) the health care provider does not provide an alternative health care service that is
 otherwise contrary to any state or federal law;
        (c) the alternative health care service has reasonable potential to be of benefit to the
 patient to whom the alternative health care service is to be given;
        (d) the potential benefit of the alternative health care service outweighs the known
 harms or side effects of the alternative health care service;
        (e) the alternative health care service is reasonably justified under the totality of the
 circumstances;
        (f) after diagnosis but before providing the alternative health care service:
        (i) the health care provider educates the patient on the health care services that are
 within the medical norms and established practices;
        (ii) the health care provider discloses to the patient that the health care provider is
 recommending an alternative health care service that deviates from medical norms and
                                                        -6-
        Enrolled Copy                                                                            S.B. 171
 established practices;
        (iii) the health care provider discusses the rationale for deviating from medical norms
 and established practices with the patient;
        (iv) the health care provider discloses any potential risks associated with deviation
 from medical norms and established practices; and
        (v) the patient signs and acknowledges a notice of deviation; and
        (g) before providing an alternative health care service, the health care provider
 discloses to the patient that the patient may enter into an agreement describing what would
 constitute the health care provider's negligence related to deviation.
        (6) As used in this section, "notice of deviation" means a written notice provided by a
 health care provider to a patient that:
        (a) is specific to the patient;
        (b) indicates that the health care provider is deviating from medical norms or
 established practices in the health care provider's recommendation for the patient's treatment;
        (c) describes how the alternative health care service deviates from medical norms or
 established practices;
        (d) describes the potential risks and benefits associated with the alternative health care
 service;
        (e) describes the health care provider's reasonably justified rationale regarding the
 reason for the deviation; and
        (f) provides clear and unequivocal notice to the patient that the patient is agreeing to
 receive the alternative health care service which is outside medical norms and established
 practices.
        Section 2. Section 58-17b-502 is amended to read:
        58-17b-502. Unprofessional conduct.
        (1) "Unprofessional conduct" includes:
        (a) willfully deceiving or attempting to deceive the division, the board, or their agents
 as to any relevant matter regarding compliance under this chapter;
                                                      -7-
        S.B. 171                                                                          Enrolled Copy
         (b) except as provided in Subsection (2):
         (i) paying or offering rebates to practitioners or any other health care providers, or
 receiving or soliciting rebates from practitioners or any other health care provider; or
         (ii) paying, offering, receiving, or soliciting compensation in the form of a commission,
 bonus, rebate, kickback, or split fee arrangement with practitioners or any other health care
 provider, for the purpose of obtaining referrals;
         (c) misbranding or adulteration of any drug or device or the sale, distribution, or
 dispensing of any outdated, misbranded, or adulterated drug or device;
         (d) engaging in the sale or purchase of drugs or devices that are samples or packages
 bearing the inscription "sample" or "not for resale" or similar words or phrases;
         (e) except as provided in Section 58-17b-503, accepting back and redistributing any
 unused drug, or a part of it, after it has left the premises of a pharmacy;
         (f) an act in violation of this chapter committed by a person for any form of
 compensation if the act is incidental to the person's professional activities, including the
 activities of a pharmacist, pharmacy intern, or pharmacy technician;
         (g) violating:
         (i) the federal Controlled Substances Act, Title II, P.L. 91-513;
         (ii) Title 58, Chapter 37, Utah Controlled Substances Act; or
         (iii) rules or regulations adopted under either act;
         (h) requiring or permitting pharmacy interns or technicians to engage in activities
 outside the scope of practice for their respective license classifications, as defined in this
 chapter and division rules made in collaboration with the board, or beyond their scope of
 training and ability;
         (i) administering:
         (i) without appropriate training, as defined by rule;
         (ii) without a physician's order, when one is required by law; and
         (iii) in conflict with a practitioner's written guidelines or written protocol for
 administering;
                                                       -8-
        Enrolled Copy                                                                            S.B. 171
        (j) disclosing confidential patient information in violation of the provisions of the
 Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat.