Text of UT HB 228 (2023)

H.B. 228 LEGISLATIVE GENERAL COUNSEL 6 Approved for Filing: A. Houston 6 6 01-17-23 2:03 PM 6 H.B. 228 1 UNPROFESSIONAL CONDUCT AMENDMENTS 2 2023 GENERAL SESSION 3 STATE OF UTAH 4 Chief Sponsor: Michael J. Petersen 5 Senate Sponsor: Curtis S. Bramble 6 7 LONG TITLE 8 General Description: 9 This bill modifies and enacts provisions relating to the provision of conversion therapy 10 to minors. 11 Highlighted Provisions: 12 This bill: 13 < defines terms; 14 < prohibits certain health care professionals from providing conversion therapy to a 15 minor; 16 < clarifies that verbal or written communication by itself does not fall within the 17 definition of conversion therapy; and 18 < makes technical and conforming changes. 19 Money Appropriated in this Bill: 20 None 21 Other Special Clauses: 22 None 23 Utah Code Sections Affected: 24 AMENDS: 25 58-1-501, as last amended by Laws of Utah 2020, Chapters 289, 339 26 58-1-502, as last amended by Laws of Utah 2020, Chapter 339 27 58-31b-102, as last amended by Laws of Utah 2022, Chapter 277 *HB0228* H.B. 228 01-17-23 2:03 PM - 2 - 28 58-31b-502, as last amended by Laws of Utah 2022, Chapter 290 29 58-55-402, as last amended by Laws of Utah 2011, Chapter 195 30 58-60-102, as last amended by Laws of Utah 2021, Chapter 313 31 58-60-110, as last amended by Laws of Utah 2019, Chapter 419 32 58-61-102, as last amended by Laws of Utah 2013, Chapters 16, 123 33 58-61-502, as last amended by Laws of Utah 2001, Chapter 281 34 58-67-102, as last amended by Laws of Utah 2022, Chapter 233 35 58-67-502, as last amended by Laws of Utah 2021, Chapter 337 36 58-68-102, as last amended by Laws of Utah 2022, Chapter 233 37 58-68-502, as last amended by Laws of Utah 2021, Chapter 337 38 58-70a-102, as last amended by Laws of Utah 2021, Chapters 312, 313 39 58-70a-503, as last amended by Laws of Utah 2022, Chapter 290 40 ENACTS: 41 58-1-511, Utah Code Annotated 1953 42 43 Be it enacted by the Legislature of the state of Utah: 44 Section 1. Section 58-1-501 is amended to read: 45 58-1-501. Unlawful and unprofessional conduct. 46 (1) "Unlawful conduct" means conduct, by any person, that is defined as unlawful 47 under this title and includes: 48 (a) practicing or engaging in, representing oneself to be practicing or engaging in, or 49 attempting to practice or engage in any occupation or profession requiring licensure under this 50 title if the person is: 51 (i) not licensed to do so or not exempted from licensure under this title; or 52 (ii) restricted from doing so by a suspended, revoked, restricted, temporary, 53 probationary, or inactive license; 54 (b) (i) impersonating another licensee or practicing an occupation or profession under a 55 false or assumed name, except as permitted by law; or 56 (ii) for a licensee who has had a license under this title reinstated following disciplinary 57 action, practicing the same occupation or profession using a different name than the name used 58 before the disciplinary action, except as permitted by law and after notice to, and approval by, 01-17-23 2:03 PM H.B. 228 - 3 - 59 the division; 60 (c) knowingly employing any other person to practice or engage in or attempt to 61 practice or engage in any occupation or profession licensed under this title if the employee is 62 not licensed to do so under this title; 63 (d) knowingly permitting the person's authority to practice or engage in any occupation 64 or profession licensed under this title to be used by another, except as permitted by law; 65 (e) obtaining a passing score on a licensure examination, applying for or obtaining a 66 license, or otherwise dealing with the division or a licensing board through the use of fraud, 67 forgery, or intentional deception, misrepresentation, misstatement, or omission; 68 (f) (i) issuing, or aiding and abetting in the issuance of, an order or prescription for a 69 drug or device to a person located in this state: 70 (A) without prescriptive authority conferred by a license issued under this title, or by 71 an exemption to licensure under this title; or 72 (B) with prescriptive authority conferred by an exception issued under this title or a 73 multistate practice privilege recognized under this title, if the prescription was issued without 74 first obtaining information, in the usual course of professional practice, that is sufficient to 75 establish a diagnosis, to identify underlying conditions, and to identify contraindications to the 76 proposed treatment; and 77 (ii) Subsection (1)(f)(i) does not apply to treatment rendered in an emergency, on-call 78 or cross coverage situation, provided that the person who issues the prescription has 79 prescriptive authority conferred by a license under this title, or is exempt from licensure under 80 this title; or 81 (g) aiding or abetting any other person to violate any statute, rule, or order regulating 82 an occupation or profession under this title. 83 (2) (a) "Unprofessional conduct" means conduct, by a licensee or applicant, that is 84 defined as unprofessional conduct under this title or under any rule adopted under this title and 85 includes: 86 [(a)] (i) violating any statute, rule, or order regulating an occupation or profession 87 under this title; 88 [(b)] (ii) violating, or aiding or abetting any other person to violate, any generally 89 accepted professional or ethical standard applicable to an occupation or profession regulated H.B. 228 01-17-23 2:03 PM - 4 - 90 under this title; 91 [(c)] (iii) subject to the provisions of Subsection (4), engaging in conduct that results in 92 conviction, a plea of nolo contendere, or a plea of guilty or nolo contendere that is held in 93 abeyance pending the successful completion of probation with respect to a crime of moral 94 turpitude or any other crime that, when considered with the functions and duties of the 95 occupation or profession for which the license was issued or is to be issued, bears a substantial 96 relationship to the licensee's or applicant's ability to safely or competently practice the 97 occupation or profession; 98 [(d)] (iv) engaging in conduct that results in disciplinary action, including reprimand, 99 censure, diversion, probation, suspension, or revocation, by any other licensing or regulatory 100 authority having jurisdiction over the licensee or applicant in the same occupation or profession 101 if the conduct would, in this state, constitute grounds for denial of licensure or disciplinary 102 proceedings under Section 58-1-401; 103 [(e)] (v) engaging in conduct, including the use of intoxicants, drugs, narcotics, or 104 similar chemicals, to the extent that the conduct does, or might reasonably be considered to, 105 impair the ability of the licensee or applicant to safely engage in the occupation or profession; 106 [(f)] (vi) practicing or attempting to practice an occupation or profession regulated 107 under this title despite being physically or mentally unfit to do so; 108 [(g)] (vii) practicing or attempting to practice an occupation or profession regulated 109 under this title through gross incompetence, gross negligence, or a pattern of incompetency or 110 negligence; 111 [(h)] (viii) practicing or attempting to practice an occupation or profession requiring 112 licensure under this title by any form of action or communication which is false, misleading, 113 deceptive, or fraudulent; 114 [(i)] (ix) practicing or attempting to practice an occupation or profession regulated 115 under this title beyond the scope of the licensee's competency, abilities, or education; 116 [(j)] (x) practicing or attempting to practice an occupation or profession regulated 117 under this title beyond the scope of the licensee's license; 118 [(k)] (xi) verbally, physically, mentally, or sexually abusing or exploiting any person 119 through conduct connected with the licensee's practice under this title or otherwise facilitated 120 by the licensee's license; 01-17-23 2:03 PM H.B. 228 - 5 - 121 [(l)] (xii) acting as a supervisor without meeting the qualification requirements for that 122 position that are defined by statute or rule; 123 [(m)] (xiii) issuing, or aiding and abetting in the issuance of, an order or prescription 124 for a drug or device: 125 [(i)] (A) without first obtaining information in the usual course of professional 126 practice, that is sufficient to establish a diagnosis, to identify conditions, and to identify 127 contraindications to the proposed treatment; or 128 [(ii)] (B) with prescriptive authority conferred by an exception issued under this title, 129 or a multi-state practice privilege recognized under this title, if the prescription was issued 130 without first obtaining information, in the usual course of professional practice, that is 131 sufficient to establish a diagnosis, to identify underlying conditions, and to identify 132 contraindications to the proposed treatment; 133 [(n)] (xiv) violating a provision of Section 58-1-501.5; [or] 134 [(o)] (xv) violating the terms of an order governing a license[.]; or 135 (xvi) violating Section 58-1-511. 136 (b) "Unprofessional conduct" does not include verbal or written communication by 137 itself, except where a verbal or written communication by itself constitutes conduct defined as 138 unprofessional conduct in this title. 139 (c) A rule adopted under this title that defines "unprofessional conduct" shall be 140 consistent with Subsection (2)(b). 141 (3) Unless otherwise specified by statute or administrative rule, in a civil or 142 administrative proceeding commenced by the division under this title, a person subject to any 143 of the unlawful and unprofessional conduct provisions of this title is strictly liable for each 144 violation. 145 (4) The following are not evidence of engaging in unprofessional conduct under 146 Subsection [(2)(c)] (2)(a)(iii): 147 (a) an arrest not followed by a conviction; or 148 (b) a conviction for which an individual's incarceration has ended more than seven 149 years before the date of the division's consideration, unless: 150 (i) after the incarceration the individual has engaged in additional conduct that results 151 in another conviction, a plea of nolo contendere, or a plea of guilty or nolo contendere that is H.B. 228 01-17-23 2:03 PM - 6 - 152 held in abeyance pending the successful completion of probation; or 153 (ii) the conviction was for: 154 (A) a violent felony as defined in Section 76-3-203.5; 155 (B) a felony related to a criminal sexual act pursuant to Title 76, Chapter 5, Part 4, 156 Sexual Offenses, or Title 76, Chapter 5b, Sexual Exploitation Act; or 157 (C) a felony related to criminal fraud or embezzlement, including a felony pursuant to 158 Title 76, Chapter 6, Part 5, Fraud, or Title 76, Chapter 6, Part 4, Theft. 159 Section 2. Section 58-1-502 is amended to read: 160 58-1-502. Unlawful and unprofessional conduct -- Penalties. 161 (1) (a) Unless otherwise specified in this title, a person who violates the unlawful 162 conduct provisions defined in this title is guilty of a class A misdemeanor. 163 (b) Unless a specific fine amount is specified elsewhere in this title, the director or the 164 director's designee may assess an administrative fine of up to $1,000 for each instance of 165 unprofessional or unlawful conduct defined in this title. 166 (2) (a) In addition to any other statutory penalty for a violation related to a specific 167 occupation or profession regulated by this title, if upon inspection or investigation, the division 168 concludes that a person has violated Subsection 58-1-501(1)(a), (1)(c), (1)(g), or [(2)(o)] 169 (2)(a)(xv), or a rule or order issued with respect to those subsections, and that disciplinary 170 action is appropriate, the director or the director's designee from within the division shall 171 promptly: 172 (i) issue a citation to the person according to this section and any pertinent rules; 173 (ii) attempt to negotiate a stipulated settlement; or 174 (iii) notify the person to appear before an adjudicative proceeding conducted under 175 Title 63G, Chapter 4, Administrative Procedures Act. 176 (b) (i) The division may assess a fine under this Subsection (2) against a person who 177 violates Subsection 58-1-501(1)(a), (1)(c), (1)(g), or [(2)(o)] (2)(a)(xv), or a rule or order 178 issued with respect to those subsections, as evidenced by: 179 (A) an uncontested citation; 180 (B) a stipulated settlement; or 181 (C) a finding of a violation in an adjudicative proceeding. 182 (ii) The division may, in addition to or in lieu of a fine under Subsection (2)(b)(i), 01-17-23 2:03 PM H.B. 228 - 7 - 183 order the person to cease and desist from violating Subsection 58-1-501(1)(a), (1)(c), (1)(g), or 184 [(2)(o)] (2)(a)(xv), or a rule or order issued with respect to those subsections. 185 (c) Except for a cease and desist order, the division may not assess the licensure 186 sanctions cited in Section 58-1-401 through a citation. 187 (d) A citation shall: 188 (i) be in writing; 189 (ii) describe with particularity the nature of the violation, including a reference to the 190 provision of the chapter, rule, or order alleged to have been violated; 191 (iii) clearly state that the recipient must notify the division in writing within 20 192 calendar days of service of the citation if the recipient wishes to contest the citation at a hearing 193 conducted under Title 63G, Chapter 4, Administrative Procedures Act; and 194 (iv) clearly explain the consequences of failure to timely contest the citation or to make 195 payment of a fine assessed by the citation within the time specified in the citation. 196 (e) The division may issue a notice in lieu of a citation. 197 (f) (i) If within 20 calendar days from the service of the citation, the person to whom 198 the citation was issued fails to request a hearing to contest the citation, the citation becomes the 199 final order of the division and is not subject to further agency review. 200 (ii) The period to contest a citation may be extended by the division for cause. 201 (g) The division may refuse to issue or renew, suspend, revoke, or place on probation 202 the license of a licensee who fails to comply with a citation after it becomes final. 203 (h) The failure of an applicant for licensure to comply with a citation after it becomes 204 final is a ground for denial of license. 205 (i) Subject to the time limitations described in Subsection 58-1-401(6), the division 206 may not issue a citation under this section after the expiration of one year following the date on 207 which the violation that is the subject of the citation is reported to the division. 208 (j) The director or the director's designee shall assess fines according to the following: 209 (i) for the first offense handled pursuant to Subsection (2)(a), a fine of up to $1,000; 210 (ii) for a second offense handled pursuant to Subsection (2)(a), a fine of up to $2,000; 211 and 212 (iii) for each subsequent offense handled pursuant to Subsection (2)(a), a fine of up to 213 $2,000 for each day of continued offense. H.B. 228 01-17-23 2:03 PM - 8 - 214 (3) (a) An action for a first or second offense that has not yet resulted in a final order of 215 the division may not preclude initiation of a subsequent action for a second or subsequent 216 offense during the pendency of a preceding action. 217 (b) The final order on a subsequent action is considered a second or subsequent 218 offense, respectively, provided the preceding action resulted in a first or second offense, 219 respectively. 220 (4) (a) The director may collect a penalty that is not paid by: 221 (i) referring the matter to a collection agency; or 222 (ii) bringing an action in the district court of the county where the person against whom 223 the penalty is imposed resides or in the county where the office of the director is located. 224 (b) A county attorney or the attorney general of the state shall provide legal assistance 225 and advice to the director in an action to collect a penalty. 226 (c) A court may award reasonable attorney fees and costs to the prevailing party in an 227 action brought by the division to collect a penalty. 228 Section 3. Section 58-1-511 is enacted to read: 229 58-1-511. Prohibition on providing conversion therapy to a minor. 230 (1) As used in this section: 231 (a) (i) "Conversion therapy" means a practice or treatment intended to influence or 232 change sexual orientation or gender identity that: 233 (A) subjects a patient or client to physical discomfort through aversive treatment that 234 causes nausea, vomiting, or other unpleasant physical sensation; 235 (B) provides electric shock or other electrical therapy, including electroconvulsive 236 therapy or transcranial magnet stimulation; 237 (C) subjects a patient to touching themself or another individual as part of the therapy; 238 or 239 (D) causes the patient to engage in physical self-harm or physical self-inflicted pain. 240 (ii) "Conversion therapy" does not include verbal or written communication by itself. 241 (b) "Health care professional" means an individual who is licensed, or an individual 242 who provides mental health therapy as part of the individual's training for a profession that is 243 licensed, under: 244 (i) Chapter 31b, Nurse Practice Act; 01-17-23 2:03 PM H.B. 228 - 9 - 245 (ii) Chapter 60, Mental Health Professional Practice Act; 246 (iii) Chapter 61, Psychologist Licensing Act; 247 (iv) Chapter 67, Utah Medical Practice Act; 248 (v) Chapter 68, Utah Osteopathic Medical Practice Act; or 249 (vi) Chapter 70a, Utah Physician Assistant Act. 250 (2) A health care professional may not provide conversion therapy to a patient or client 251 who is younger than 18 years old. 252 (3) A violation of this section is unprofessional conduct. 253 Section 4. Section 58-31b-102 is amended to read: 254 58-31b-102. Definitions. 255 In addition to the definitions in Section 58-1-102, as used in this chapter: 256 (1) "Administrative penalty" means a monetary fine or citation imposed by the division 257 for acts or omissions determined to be unprofessional or unlawful conduct in accordance with a 258 fine schedule established by division rule made in accordance with Title 63G, Chapter 3, Utah 259 Administrative Rulemaking Act, and as a result of an adjudicative proceeding conducted in 260 accordance with Title 63G, Chapter 4, Administrative Procedures Act. 261 (2) "Applicant" means an individual who applies for licensure or certification under 262 this chapter by submitting a completed application for licensure or certification and the 263 required fees to the department. 264 (3) "Approved education program" means a nursing education program that is 265 accredited by an accrediting body for nursing education that is approved by the United States 266 Department of Education. 267 (4) "Board" means the Board of Nursing created in Section 58-31b-201. 268 (5) "Diagnosis" means the identification of and discrimination between physical and 269 psychosocial signs and symptoms essential to the effective execution and management of 270 health care. 271 (6) "Examinee" means an individual who applies to take or does take any examination 272 required under this chapter for licensure. 273 (7) "Licensee" means an individual who is licensed or certified under this chapter. 274 (8) "Long-term care facility" means any of the following facilities licensed by the 275 Department of Health and Human Services pursuant to Title 26, Chapter 21, Health Care H.B. 228 01-17-23 2:03 PM - 10 - 276 Facility Licensing and Inspection Act: 277 (a) a nursing care facility; 278 (b) a small health care facility; 279 (c) an intermediate care facility for people with an intellectual disability; 280 (d) an assisted living facility Type I or II; or 281 (e) a designated swing bed unit in a general hospital. 282 (9) "Medication aide certified" means a certified nurse aide who: 283 (a) has a minimum of 2,000 hours experience working as a certified nurse aide; 284 (b) has received a minimum of 60 hours of classroom and 40 hours of practical training 285 that is approved by the division in collaboration with the board, in administering routine 286 medications to patients or residents of long-term care facilities; and 287 (c) is certified by the division as a medication aide certified. 288 (10) (a) "Practice as a medication aide certified" means the limited practice of nursing 289 under the supervision, as defined by the division by rule made in accordance with Title 63G, 290 Chapter 3, Utah Administrative Rulemaking Act, of a licensed nurse, involving routine patient 291 care that requires minimal or limited specialized or general knowledge, judgment, and skill, to 292 an individual who: 293 (i) is ill, injured, infirm, has a physical, mental, developmental, or intellectual 294 disability; and 295 (ii) is in a regulated long-term care facility. 296 (b) "Practice as a medication aide certified": 297 (i) includes: 298 (A) providing direct personal assistance or care; and 299 (B) administering routine medications to patients in accordance with a formulary and 300 protocols to be defined by the division by rule made in accordance with Title 63G, Chapter 3, 301 Utah Administrative Rulemaking Act; and 302 (ii) does not include assisting a resident of an assisted living facility, a long term care 303 facility, or an intermediate care facility for people with an intellectual disability to self 304 administer a medication, as regulated by the Department of Health and Human Services by rule 305 made in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act. 306 (11) "Practice of advanced practice registered nursing" means the practice of nursing 01-17-23 2:03 PM H.B. 228 - 11 - 307 within the generally recognized scope and standards of advanced practice registered nursing as 308 defined by rule and consistent with professionally recognized preparation and education 309 standards of an advanced practice registered nurse by a person licensed under this chapter as an 310 advanced practice registered nurse. "Practice of advanced practice registered nursing" includes: 311 (a) maintenance and promotion of health and prevention of disease; 312 (b) diagnosis, treatment, correction, consultation, and referral; 313 (c) prescription or administration of prescription drugs or devices including: 314 (i) local anesthesia; 315 (ii) Schedule III-V controlled substances; and 316 (iii) Subject to Section 58-31b-803, Schedule II controlled substances; or 317 (d) the provision of preoperative, intraoperative, and postoperative anesthesia care and 318 related services upon the request of a licensed health care professional by an advanced practice 319 registered nurse specializing as a certified registered nurse anesthetist, including: 320 (i) preanesthesia preparation and evaluation including: 321 (A) performing a preanesthetic assessment of the patient; 322 (B) ordering and evaluating appropriate lab and other studies to determine the health of 323 the patient; and 324 (C) selecting, ordering, or administering appropriate medications; 325 (ii) anesthesia induction, maintenance, and emergence, including: 326 (A) selecting and initiating the planned anesthetic technique; 327 (B) selecting and administering anesthetics and adjunct drugs and fluids; and 328 (C) administering general, regional, and local anesthesia; 329 (iii) postanesthesia follow-up care, including: 330 (A) evaluating the patient's response to anesthesia and implementing corrective 331 actions; and 332 (B) selecting, ordering, or administering the medications and studies listed in this 333 Subsection (11)(d); 334 (iv) other related services within the scope of practice of a certified registered nurse 335 anesthetist, including: 336 (A) emergency airway management; 337 (B) advanced cardiac life support; and H.B. 228 01-17-23 2:03 PM - 12 - 338 (C) the establishment of peripheral, central, and arterial invasive lines; and 339 (v) for purposes of this Subsection (11)(d), "upon the request of a licensed health care 340 professional": 341 (A) means a health care professional practicing within the scope of the health care 342 professional's license, requests anesthesia services for a specific patient; and 343 (B) does not require an advanced practice registered nurse specializing as a certified 344 registered nurse anesthetist to obtain additional authority to select, administer, or provide 345 preoperative, intraoperative, or postoperative anesthesia care and services. 346 (12) "Practice of nursing" means assisting individuals or groups to maintain or attain 347 optimal health, implementing a strategy of care to accomplish defined goals and evaluating 348 responses to care and treatment, and requires substantial specialized or general knowledge, 349 judgment, and skill based upon principles of the biological, physical, behavioral, and social 350 sciences. "Practice of nursing" includes: 351 (a) initiating and maintaining comfort measures; 352 (b) promoting and supporting human functions and responses; 353 (c) establishing an environment conducive to well-being; 354 (d) providing health counseling and teaching; 355 (e) collaborating with health care professionals on aspects of the health care regimen; 356 (f) performing delegated procedures only within the education, knowledge, judgment, 357 and skill of the licensee; 358 (g) delegating nursing tasks that may be performed by others, including an unlicensed 359 assistive personnel; and 360 (h) supervising an individual to whom a task is delegated under Subsection (12)(g) as 361 the individual performs the task. 362 (13) "Practice of practical nursing" means the performance of nursing acts in the 363 generally recognized scope of practice of licensed practical nurses as defined by division rule 364 made in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and as 365 provided in this Subsection (13) by an individual licensed under this chapter as a licensed 366 practical nurse and under the direction of a registered nurse, licensed physician, or other 367 specified health care professional as defined by division rule made in accordance with Title 368 63G, Chapter 3, Utah Administrative Rulemaking Act. Practical nursing acts include: 01-17-23 2:03 PM H.B. 228 - 13 - 369 (a) contributing to the assessment of the health status of individuals and groups; 370 (b) participating in the development and modification of the strategy of care; 371 (c) implementing appropriate aspects of the strategy of care; 372 (d) maintaining safe and effective nursing care rendered to a patient directly or 373 indirectly; and 374 (e) participating in the evaluation of responses to interventions. 375 (14) "Practice of registered nursing" means performing acts of nursing as provided in 376 this Subsection (14) by an individual licensed under this chapter as a registered nurse within 377 the generally recognized scope of practice of registered nurses as defined by division rule made 378 in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act. Registered 379 nursing acts include: 380 (a) assessing the health status of individuals and groups; 381 (b) identifying health care needs; 382 (c) establishing goals to meet identified health care needs; 383 (d) planning a strategy of care; 384 (e) prescribing nursing interventions to implement the strategy of care; 385 (f) implementing the strategy of care; 386 (g) maintaining safe and effective nursing care that is rendered to a patient directly or 387 indirectly; 388 (h) evaluating responses to interventions; 389 (i) teaching the theory and practice of nursing; and 390 (j) managing and supervising the practice of nursing. 391 (15) "Registered nurse apprentice" means an individual licensed under Subsection 392 58-31b-301(2)(b) who is learning and engaging in the practice of registered nursing under the 393 indirect supervision of an individual licensed under: 394 (a) Subsection 58-31b-301(2)(c), (e), or (f); 395 (b) Chapter 67, Utah Medical Practice Act; or 396 (c) Chapter 68, Utah Osteopathic Medical Practice Act. 397 (16) "Routine medications": 398 (a) means established medications administered to a medically stable individual as 399 determined by a licensed health care practitioner or in consultation with a licensed medical H.B. 228 01-17-23 2:03 PM - 14 - 400 practitioner; and 401 (b) is limited to medications that are administered by the following routes: 402 (i) oral; 403 (ii) sublingual; 404 (iii) buccal; 405 (iv) eye; 406 (v) ear; 407 (vi) nasal; 408 (vii) rectal; 409 (viii) vaginal; 410 (ix) skin ointments, topical including patches and transdermal; 411 (x) premeasured medication delivered by aerosol/nebulizer; and 412 (xi) medications delivered by metered hand-held inhalers. 413 (17) "Unlawful conduct" means the same as that term is defined in Sections 58-1-501 414 and 58-31b-501. 415 (18) "Unlicensed assistive personnel" means any unlicensed individual, regardless of 416 title, who is delegated a task by a licensed nurse as permitted by division rule made in 417 accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and the standards 418 of the profession. 419 (19) "Unprofessional conduct" means the same as that term is defined in Sections 420 58-1-501 and 58-31b-502 and as may be further defined by division rule made in accordance 421 with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and subject to Subsections 422 58-1-501(2)(b) and 58-31b-502(2)(b). 423 Section 5. Section 58-31b-502 is amended to read: 424 58-31b-502. Unprofessional conduct. 425 (1) "Unprofessional conduct" includes: 426 (a) failure to safeguard a patient's right to privacy as to the patient's person, condition, 427 diagnosis, personal effects, or any other matter about which the licensee is privileged to know 428 because of the licensee's or person with a certification's position or practice as a nurse or 429 practice as a medication aide certified; 430 (b) failure to provide nursing service or service as a medication aide certified in a 01-17-23 2:03 PM H.B. 228 - 15 - 431 manner that demonstrates respect for the patient's human dignity and unique personal character 432 and needs without regard to the patient's race, religion, ethnic background, socioeconomic 433 status, age, sex, or the nature of the patient's health problem; 434 (c) engaging in sexual relations with a patient during any: 435 (i) period when a generally recognized professional relationship exists between the 436 person licensed or certified under this chapter and the patient; or 437 (ii) extended period when a patient has reasonable cause to believe a professional 438 relationship exists between the person licensed or certified under the provisions of this chapter 439 and the patient; 440 (d) (i) as a result of any circumstance under Subsection (1)(c), exploiting or using 441 information about a patient or exploiting the licensee's or the person with a certification's 442 professional relationship between the licensee or holder of a certification under this chapter and 443 the patient; or 444 (ii) exploiting the patient by use of the licensee's or person with a certification's 445 knowledge of the patient obtained while acting as a nurse or a medication aide certified; 446 (e) unlawfully obtaining, possessing, or using any prescription drug or illicit drug; 447 (f) unauthorized taking or personal use of nursing supplies from an employer; 448 (g) unauthorized taking or personal use of a patient's personal property; 449 (h) unlawful or inappropriate delegation of nursing care; 450 (i) failure to exercise appropriate supervision of persons providing patient care services 451 under supervision of the licensed nurse; 452 (j) employing or aiding and abetting the employment of an unqualified or unlicensed 453 person to practice as a nurse; 454 (k) failure to file or record any medical report as required by law, impeding or 455 obstructing the filing or recording of such a report, or inducing another to fail to file or record 456 such a report; 457 (l) breach of a statutory, common law, regulatory, or ethical requirement of 458 confidentiality with respect to a person who is a patient, unless ordered by a court; 459 (m) failure to pay a penalty imposed by the division; 460 (n) prescribing a Schedule II controlled substance without complying with the 461 requirements in Section 58-31b-803, if applicable; H.B. 228 01-17-23 2:03 PM - 16 - 462 (o) violating Section 58-31b-801; 463 (p) violating the dispensing requirements of Section 58-17b-309 or Chapter 17b, Part 464 8, Dispensing Medical Practitioner and Dispensing Medical Practitioner Clinic Pharmacy, if 465 applicable; 466 (q) falsely making an entry in, or altering, a medical record with the intent to conceal: 467 (i) a wrongful or negligent act or omission of an individual licensed under this chapter 468 or an individual under the direction or control of an individual licensed under this chapter; or 469 (ii) conduct described in Subsections (1)(a) through (o) or Subsection 58-1-501(1); [or] 470 (r) violating the requirements of Title 26, Chapter 61a, Utah Medical Cannabis Act[.]; 471 or 472 (s) violating Section 58-1-511. 473 (2) "Unprofessional conduct" does not include[,]: 474 (a) in accordance with Title 26, Chapter 61a, Utah Medical Cannabis Act, when 475 registered as a qualified medical provider, or acting as a limited medical provider, as those 476 terms are defined in Section 26-61a-102, recommending the use of medical cannabis[.]; or 477 (b) verbal or written communication by itself, except where a verbal or written 478 communication by itself constitutes conduct described in Section 58-1-501 or Subsection 479 (1)(a). 480 (3) Notwithstanding Subsection (2), the division, in consultation with the board and in 481 accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, shall define 482 unprofessional conduct for an advanced practice registered nurse described in Subsection (2). 483 Section 6. Section 58-55-402 is amended to read: 484 58-55-402. Investigation of regulated activity. 485 (1) The division shall be responsible for the investigation of persons and activities in 486 violation of the provisions of this chapter. 487 (2) (a) Investigation by the division shall include investigations of: 488 (i) licensees engaged in unlawful or unprofessional conduct; and 489 (ii) unlicensed persons engaged in the conduct of activity or work regulated under this 490 chapter and for which a license is required. 491 (b) (i) As used in this Subsection (2)(b), "sign contractor": 492 (A) means a sign installation contractor or nonelectrical outdoor advertising sign 01-17-23 2:03 PM H.B. 228 - 17 - 493 contractor, as classified and defined in division rules; and 494 (B) does not include a sign installation contractor or nonelectrical outdoor advertising 495 sign contractor, as classified and defined in division rules, that is subject to Title 72, Chapter 7, 496 Part 5, Utah Outdoor Advertising Act. 497 (ii) The division shall maintain a record of the number of unlicensed persons found to 498 have engaged each year in the conduct of activity or work regulated under this chapter for 499 which a license as a sign contractor is required, including the location where a violation 500 occurred. 501 (3) The division shall decline to proceed with investigation of the violation of any 502 provisions of this chapter if the division finds there is no apparent material jeopardy to the 503 public health, safety, and welfare. 504 (4) The division shall have no responsibility for the inspection of construction work 505 performed in the state to determine compliance with applicable codes, or industry and 506 workmanship standards, except as provided in Subsections [58-1-501(2)(g)] 507 58-1-501(2)(a)(vii), 58-55-502(2), (3), and (4), and 58-55-501(16). 508 (5) Authorized representatives of the division shall be permitted to enter upon the 509 premises or site of work regulated under this chapter for the purpose of determining 510 compliance with the provisions of this chapter. 511 Section 7. Section 58-60-102 is amended to read: 512 58-60-102. Definitions. 513 In addition to the definitions in Section 58-1-102, as used in this chapter: 514 (1) "Client" or "patient" means an individual who consults or is examined or 515 interviewed by an individual licensed under this chapter who is acting in the individual's 516 professional capacity. 517 (2) "Confidential communication" means information obtained by an individual 518 licensed under this chapter, including information obtained by the individual's examination of 519 the client or patient, which is: 520 (a) (i) transmitted between the client or patient and an individual licensed under this 521 chapter in the course of that relationship; or 522 (ii) transmitted among the client or patient, an individual licensed under this chapter, 523 and individuals who are participating in the diagnosis or treatment under the direction of an H.B. 228 01-17-23 2:03 PM - 18 - 524 individual licensed under this chapter, including members of the client's or patient's family; and 525 (b) made in confidence, for the diagnosis or treatment of the client or patient by the 526 individual licensed under this chapter, and by a means not intended to be disclosed to third 527 persons other than those individuals: 528 (i) present to further the interest of the client or patient in the consultation, 529 examination, or interview; 530 (ii) reasonably necessary for the transmission of the communications; or 531 (iii) participating in the diagnosis and treatment of the client or patient under the 532 direction of the mental health therapist. 533 (3) "Hypnosis" means, when referring to individuals exempted from licensure under 534 this chapter, a process by which an individual induces or assists another individual into a 535 hypnotic state without the use of drugs or other substances and for the purpose of increasing 536 motivation or to assist the individual to alter lifestyles or habits. 537 (4) "Individual" means a natural person. 538 (5) "Mental health therapist" means an individual who is practicing within the scope of 539 practice defined in the individual's respective licensing act and is licensed under this title as: 540 (a) a physician and surgeon, or osteopathic physician engaged in the practice of mental 541 health therapy; 542 (b) an advanced practice registered nurse, specializing in psychiatric mental health 543 nursing; 544 (c) an advanced practice registered nurse intern, specializing in psychiatric mental 545 health nursing; 546 (d) a psychologist qualified to engage in the practice of mental health therapy; 547 (e) a certified psychology resident qualifying to engage in the practice of mental health 548 therapy; 549 (f) a physician assistant specializing in mental health care under Section 58-70a-501.1; 550 (g) a clinical social worker; 551 (h) a certified social worker; 552 (i) a marriage and family therapist; 553 (j) an associate marriage and family therapist; 554 (k) a clinical mental health counselor; or 01-17-23 2:03 PM H.B. 228 - 19 - 555 (l) an associate clinical mental health counselor. 556 (6) "Mental illness" means a mental or emotional condition defined in an approved 557 diagnostic and statistical manual for mental disorders generally recognized in the professions of 558 mental health therapy listed under Subsection (5). 559 (7) "Practice of mental health therapy" means treatment or prevention of mental illness, 560 whether in person or remotely, including: 561 (a) conducting a professional evaluation of an individual's condition of mental health, 562 mental illness, or emotional disorder consistent with standards generally recognized in the 563 professions of mental health therapy listed under Subsection (5); 564 (b) establishing a diagnosis in accordance with established written standards generally 565 recognized in the professions of mental health therapy listed under Subsection (5); 566 (c) prescribing a plan for the prevention or treatment of a condition of mental illness or 567 emotional disorder; and 568 (d) engaging in the conduct of professional intervention, including psychotherapy by 569 the application of established methods and procedures generally recognized in the professions 570 of mental health therapy listed under Subsection (5). 571 (8) "Remotely" means communicating via Internet, telephone, or other electronic 572 means that facilitate real-time audio or visual interaction between individuals when they are not 573 physically present in the same room at the same time. 574 (9) "Unlawful conduct" is as defined in Sections 58-1-501 and 58-60-109. 575 (10) "Unprofessional conduct" is as defined in Sections 58-1-501 and 58-60-110, and 576 may be further defined by division rule subject to Subsections 58-1-501(2)(b) and 577 58-60-110(1)(b). 578 Section 8. Section 58-60-110 is amended to read: 579 58-60-110. Unprofessional conduct. 580 (1) (a) As used in this chapter, "unprofessional conduct" includes: 581 [(a)] (i) using or employing the services of any individual to assist a licensee in any 582 manner not in accordance with the generally recognized practices, standards, or ethics of the 583 profession for which the individual is licensed, or the laws of the state; 584 [(b)] (ii) failure to confine practice conduct to those acts or practices: 585 [(i)] (A) in which the individual is competent by education, training, and experience H.B. 228 01-17-23 2:03 PM - 20 - 586 within limits of education, training, and experience; and 587 [(ii)] (B) which are within applicable scope of practice laws of this chapter; 588 [(c)] (iii) disclosing or refusing to disclose any confidential communication under 589 Section 58-60-114 or 58-60-509; [and] 590 [(d)] (iv) a pattern of failing to offer a patient the opportunity to waive the patient's 591 privacy rights under the Standards for Privacy of Individually Identifiable Health Information, 592 45 C.F.R., Parts 160 and 164[.]; and 593 (v) a violation of Section 58-1-511. 594 (b) "Unprofessional conduct" does not include verbal or written communication by 595 itself, except where a verbal or written communication by itself constitutes conduct described 596 in Section 58-1-501 or Subsection (1)(a). 597 (2) ["Unprofessional] Subject to Subsection (1)(b), "unprofessional conduct" under this 598 chapter may be further defined by division rule. 599 (3) Notwithstanding Section 58-1-401, the division may not act upon the license of a 600 licensee for unprofessional conduct under Subsection [(1)(d)] (1)(a)(iv). 601 Section 9. Section 58-61-102 is amended to read: 602 58-61-102. Definitions. 603 In addition to the definitions in Section 58-1-102, as used in this chapter: 604 (1) "Board" means the Psychologist Licensing Board created in Section 58-61-201. 605 (2) "Client" or "patient" means an individual who consults or is examined or 606 interviewed by a psychologist acting in his professional capacity. 607 (3) "Confidential communication" means information, including information obtained 608 by the psychologist's examination of the client or patient, which is: 609 (a) (i) transmitted between the client or patient and a psychologist in the course of that 610 relationship; or 611 (ii) transmitted among the client or patient, the psychologist, and individuals who are 612 participating in the diagnosis or treatment under the direction of the psychologist, including 613 members of the client's or patient's family; and 614 (b) made in confidence, for the diagnosis or treatment of the client or patient by the 615 psychologist, and by a means not intended to be disclosed to third persons other than those 616 individuals: 01-17-23 2:03 PM H.B. 228 - 21 - 617 (i) present to further the interest of the client or patient in the consultation, 618 examination, or interview; 619 (ii) reasonably necessary for the transmission of the communications; or 620 (iii) participating in the diagnosis and treatment of the client or patient under the 621 direction of the psychologist. 622 (4) "Hypnosis" means, regarding individuals exempted from licensure under this 623 chapter, a process by which one individual induces or assists another individual into a hypnotic 624 state without the use of drugs or other substances and for the purpose of increasing motivation 625 or to assist the individual to alter lifestyles or habits. 626 (5) "Individual" means a natural person. 627 (6) "Mental health therapist" means an individual licensed under this title as a: 628 (a) physician and surgeon, or osteopathic physician engaged in the practice of mental 629 health therapy; 630 (b) an advanced practice registered nurse, specializing in psychiatric mental health 631 nursing; 632 (c) an advanced practice registered nurse intern, specializing in psychiatric mental 633 health nursing; 634 (d) psychologist qualified to engage in the practice of mental health therapy; 635 (e) a certified psychology resident qualifying to engage in the practice of mental health 636 therapy; 637 (f) clinical social worker; 638 (g) certified social worker; 639 (h) marriage and family therapist; 640 (i) an associate marriage and family therapist; 641 (j) a clinical mental health counselor; or 642 (k) an associate clinical mental health counselor. 643 (7) "Mental illness" means a mental or emotional condition defined in an approved 644 diagnostic and statistical manual for mental disorders generally recognized in the professions of 645 mental health therapy listed under Subsection (6). 646 (8) "Practice of mental health therapy" means the treatment or prevention of mental 647 illness, whether in person or remotely, including: H.B. 228 01-17-23 2:03 PM - 22 - 648 (a) conducting a professional evaluation of an individual's condition of mental health, 649 mental illness, or emotional disorder; 650 (b) establishing a diagnosis in accordance with established written standards generally 651 recognized in the professions of mental health therapy listed under Subsection (6); 652 (c) prescribing a plan for the prevention or treatment of a condition of mental illness or 653 emotional disorder; and 654 (d) engaging in the conduct of professional intervention, including psychotherapy by 655 the application of established methods and procedures generally recognized in the professions 656 of mental health therapy listed under Subsection (6). 657 (9) (a) "Practice of psychology" includes: 658 (i) the practice of mental health therapy by means of observation, description, 659 evaluation, interpretation, intervention, and treatment to effect modification of human behavior 660 by the application of generally recognized professional psychological principles, methods, and 661 procedures for the purpose of preventing, treating, or eliminating mental or emotional illness or 662 dysfunction, the symptoms of any of these, or maladaptive behavior; 663 (ii) the observation, description, evaluation, interpretation, or modification of human 664 behavior by the application of generally recognized professional principles, methods, or 665 procedures requiring the education, training, and clinical experience of a psychologist, for the 666 purpose of assessing, diagnosing, preventing, or eliminating symptomatic, maladaptive, or 667 undesired behavior and of enhancing interpersonal relationships, work and life adjustment, 668 personal effectiveness, behavioral health, and mental health; 669 (iii) psychological testing and the evaluation or assessment of personal characteristics 670 such as intelligence, personality, abilities, interests, aptitudes, and neuropsychological 671 functioning; 672 (iv) counseling, marriage and family therapy, psychoanalysis, psychotherapy, hypnosis, 673 and behavior analysis and therapy; 674 (v) diagnosis and treatment of mental and emotional disorders of disability, alcoholism 675 and substance abuse, disorders of habit or conduct, and the psychological aspects of physical 676 illness, accident, injury, or disability; and 677 (vi) psychoeducational evaluation, therapy, remediation, and consultation. 678 (b) An individual practicing psychology may provide services to individuals, couples, 01-17-23 2:03 PM H.B. 228 - 23 - 679 families, groups of individuals, members of the public, and individuals or groups within 680 organizations or institutions. 681 (10) "Remotely" means communicating via Internet, telephone, or other electronic 682 means that facilitate real-time audio or visual interaction between individuals when they are not 683 physically present in the same room at the same time. 684 (11) "Unlawful conduct" is as defined in Sections 58-1-501 and 58-61-501. 685 (12) "Unprofessional conduct" is as defined in Sections 58-1-501 and 58-61-502, and 686 may be further defined by division rule subject to Subsections 58-1-501(2)(b) and 687 58-61-502(1)(b). 688 Section 10. Section 58-61-502 is amended to read: 689 58-61-502. Unprofessional conduct. 690 (1) (a) As used in this chapter, "unprofessional conduct" includes: 691 [(a)] (i) using or employing the services of any individual to assist a licensee in any 692 manner not in accordance with the generally recognized practices, standards, or ethics of the 693 profession for which the individual is licensed, or the laws of the state; 694 [(b)] (ii) failure to confine practice conduct to those acts or practices: 695 [(i)] (A) in which the individual is competent by education, training, and experience 696 within limits of education, training, and experience; and 697 [(ii)] (B) which are within applicable scope of practice laws of this chapter; [and] 698 [(c)] (iii) disclosing or refusing to disclose any confidential communication under 699 Section 58-61-602[.]; and 700 (iv) a violation of Section 58-1-511. 701 (b) "Unprofessional conduct" does not include verbal or written communication by 702 itself, except where a verbal or written communication by itself constitutes conduct described 703 in Section 58-1-501 or Subsection (1)(a). 704 (2) "Unprofessional conduct" under this chapter may be further defined by division rule 705 subject to Subsection (1)(b). 706 Section 11. Section 58-67-102 is amended to read: 707 58-67-102. Definitions. 708 In addition to the definitions in Section 58-1-102, as used in this chapter: 709 (1) (a) "Ablative procedure" means a procedure that is expected to excise, vaporize, H.B. 228 01-17-23 2:03 PM - 24 - 710 disintegrate, or remove living tissue, including the use of carbon dioxide lasers and erbium: 711 YAG lasers. 712 (b) "Ablative procedure" does not include hair removal. 713 (2) "ACGME" means the Accreditation Council for Graduate Medical Education of the 714 American Medical Association. 715 (3) "Administrative penalty" means a monetary fine or citation imposed by the division 716 for acts or omissions determined to constitute unprofessional or unlawful conduct, in 717 accordance with a fine schedule established by the division in collaboration with the board, as a 718 result of an adjudicative proceeding conducted in accordance with Title 63G, Chapter 4, 719 Administrative Procedures Act. 720 (4) "Associate physician" means an individual licensed under Section 58-67-302.8. 721 (5) "Board" means the Physicians Licensing Board created in Section 58-67-201. 722 (6) "Collaborating physician" means an individual licensed under Section 58-67-302 723 who enters into a collaborative practice arrangement with an associate physician. 724 (7) "Collaborative practice arrangement" means the arrangement described in Section 725 58-67-807. 726 (8) (a) "Cosmetic medical device" means tissue altering energy based devices that have 727 the potential for altering living tissue and that are used to perform ablative or nonablative 728 procedures, such as American National Standards Institute (ANSI) designated Class IIIb and 729 Class IV lasers, intense pulsed light, radio frequency devices, and lipolytic devices, and 730 excludes ANSI designated Class IIIa and lower powered devices. 731 (b) Notwithstanding Subsection (8)(a), if an ANSI designated Class IIIa and lower 732 powered device is being used to perform an ablative procedure, the device is included in the 733 definition of cosmetic medical device under Subsection (8)(a). 734 (9) "Cosmetic medical procedure": 735 (a) includes the use of cosmetic medical devices to perform ablative or nonablative 736 procedures; and 737 (b) does not include a treatment of the ocular globe such as refractive surgery. 738 (10) "Diagnose" means: 739 (a) to examine in any manner another person, parts of a person's body, substances, 740 fluids, or materials excreted, taken, or removed from a person's body, or produced by a person's 01-17-23 2:03 PM H.B. 228 - 25 - 741 body, to determine the source, nature, kind, or extent of a disease or other physical or mental 742 condition; 743 (b) to attempt to conduct an examination or determination described under Subsection 744 (10)(a); 745 (c) to hold oneself out as making or to represent that one is making an examination or 746 determination as described in Subsection (10)(a); or 747 (d) to make an examination or determination as described in Subsection (10)(a) upon 748 or from information supplied directly or indirectly by another person, whether or not in the 749 presence of the person making or attempting the diagnosis or examination. 750 (11) "LCME" means the Liaison Committee on Medical Education of the American 751 Medical Association. 752 (12) "Medical assistant" means an unlicensed individual who may perform tasks as 753 described in Subsection 58-67-305(6). 754 (13) "Medically underserved area" means a geographic area in which there is a 755 shortage of primary care health services for residents, as determined by the Department of 756 Health and Human Services. 757 (14) "Medically underserved population" means a specified group of people living in a 758 defined geographic area with a shortage of primary care health services, as determined by the 759 Department of Health and Human Services. 760 (15) (a) (i) "Nonablative procedure" means a procedure that is expected or intended to 761 alter living tissue, but is not intended or expected to excise, vaporize, disintegrate, or remove 762 living tissue. 763 (ii) Notwithstanding Subsection (15)(a)(i), nonablative procedure includes hair 764 removal. 765 (b) "Nonablative procedure" does not include: 766 (i) a superficial procedure as defined in Section 58-1-102; 767 (ii) the application of permanent make-up; or 768 (iii) the use of photo therapy and lasers for neuromusculoskeletal treatments that are 769 performed by an individual licensed under this title who is acting within the individual's scope 770 of practice. 771 (16) "Physician" means both physicians and surgeons licensed under Section H.B. 228 01-17-23 2:03 PM - 26 - 772 58-67-301, Utah Medical Practice Act, and osteopathic physicians and surgeons licensed under 773 Section 58-68-301, Utah Osteopathic Medical Practice Act. 774 (17) (a) "Practice of medicine" means: 775 (i) to diagnose, treat, correct, administer anesthesia, or prescribe for any human 776 disease, ailment, injury, infirmity, deformity, pain or other condition, physical or mental, real 777 or imaginary, including to perform cosmetic medical procedures, or to attempt to do so, by any 778 means or instrumentality, and by an individual in Utah or outside the state upon or for any 779 human within the state; 780 (ii) when a person not licensed as a physician directs a licensee under this chapter to 781 withhold or alter the health care services that the licensee has ordered; 782 (iii) to maintain an office or place of business for the purpose of doing any of the acts 783 described in Subsection (17)(a) whether or not for compensation; or 784 (iv) to use, in the conduct of any occupation or profession pertaining to the diagnosis or 785 treatment of human diseases or conditions in any printed material, stationery, letterhead, 786 envelopes, signs, or advertisements, the designation "doctor," "doctor of medicine," 787 "physician," "surgeon," "physician and surgeon," "Dr.," "M.D.," or any combination of these 788 designations in any manner which might cause a reasonable person to believe the individual 789 using the designation is a licensed physician and surgeon, and if the party using the designation 790 is not a licensed physician and surgeon, the designation must additionally contain the 791 description of the branch of the healing arts for which the person has a license, provided that an 792 individual who has received an earned degree of doctor of medicine degree but is not a licensed 793 physician and surgeon in Utah may use the designation "M.D." if it is followed by "Not 794 Licensed" or "Not Licensed in Utah" in the same size and style of lettering. 795 (b) The practice of medicine does not include: 796 (i) except for an ablative medical procedure as provided in Subsection (17)(b)(ii), the 797 conduct described in Subsection (17)(a)(i) that is performed in accordance with a license issued 798 under another chapter of this title; 799 (ii) an ablative cosmetic medical procedure if the scope of practice for the person 800 performing the ablative cosmetic medical procedure includes the authority to operate or 801 perform a surgical procedure; or 802 (iii) conduct under Subsection 58-67-501(2). 01-17-23 2:03 PM H.B. 228 - 27 - 803 (18) "Prescription device" means an instrument, apparatus, implement, machine, 804 contrivance, implant, in vitro reagent, or other similar or related article, and any component 805 part or accessory, which is required under federal or state law to be prescribed by a practitioner 806 and dispensed by or through a person or entity licensed under this chapter or exempt from 807 licensure under this chapter. 808 (19) "Prescription drug" means a drug that is required by federal or state law or rule to 809 be dispensed only by prescription or is restricted to administration only by practitioners. 810 (20) "SPEX" means the Special Purpose Examination of the Federation of State 811 Medical Boards. 812 (21) "Unlawful conduct" means the same as that term is defined in Sections 58-1-501 813 and 58-67-501. 814 (22) "Unprofessional conduct" means the same as that term is defined in Sections 815 58-1-501 and 58-67-502, and as may be further defined by division rule subject to Subsections 816 58-1-501(2)(b) and 58-67-502(2)(c). 817 Section 12. Section 58-67-502 is amended to read: 818 58-67-502. Unprofessional conduct. 819 (1) "Unprofessional conduct" includes, in addition to the definition in Section 820 58-1-501: 821 (a) using or employing the services of any individual to assist a licensee in any manner 822 not in accordance with the generally recognized practices, standards, or ethics of the 823 profession, state law, or division rule; 824 (b) making a material misrepresentation regarding the qualifications for licensure under 825 Section 58-67-302.7 or Section 58-67-302.8; 826 (c) violating the dispensing requirements of Chapter 17b, Part 8, Dispensing Medical 827 Practitioner and Dispensing Medical Practitioner Clinic Pharmacy, if applicable; 828 (d) violating the requirements of Title 26, Chapter 61a, Utah Medical Cannabis Act; 829 [or] 830 (e) falsely making an entry in, or altering, a medical record with the intent to conceal: 831 (i) a wrongful or negligent act or omission of an individual licensed under this chapter 832 or an individual under the direction or control of an individual licensed under this chapter; or 833 (ii) conduct described in Subsections (1)(a) through (d) or Subsection 58-1-501(1)[.]; H.B. 228 01-17-23 2:03 PM - 28 - 834 or 835 (f) a violation of Section 58-1-511. 836 (2) "Unprofessional conduct" does not include: 837 (a) in compliance with Section 58-85-103: 838 (i) obtaining an investigational drug or investigational device; 839 (ii) administering the investigational drug to an eligible patient; or 840 (iii) treating an eligible patient with the investigational drug or investigational device; 841 [or] 842 (b) in accordance with Title 26, Chapter 61a, Utah Medical Cannabis Act: 843 (i) when registered as a qualified medical provider or acting as a limited medical 844 provider, as those terms are defined in Section 26-61a-102, recommending the use of medical 845 cannabis; 846 (ii) when registered as a pharmacy medical provider, as that term is defined in Section 847 26-61a-102, providing pharmacy medical provider services in a medical cannabis pharmacy; or 848 (iii) when registered as a state central patient portal medical provider, as that term is 849 defined in Section 26-61a-102, providing state central patient portal medical provider 850 services[.]; or 851 (c) verbal or written communication by itself, except where a verbal or written 852 communication by itself constitutes conduct described in Section 58-1-501 or Subsection (1). 853 (3) Notwithstanding Subsection (2)(b), the division, in consultation with the board and 854 in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, shall define 855 unprofessional conduct for a physician described in Subsection (2)(b). 856 Section 13. Section 58-68-102 is amended to read: 857 58-68-102. Definitions. 858 In addition to the definitions in Section 58-1-102, as used in this chapter: 859 (1) (a) "Ablative procedure" means a procedure that is expected to excise, vaporize, 860 disintegrate, or remove living tissue, including the use of carbon dioxide lasers and erbium: 861 YAG lasers. 862 (b) "Ablative procedure" does not include hair removal. 863 (2) "ACGME" means the Accreditation Council for Graduate Medical Education of the 864 American Medical Association. 01-17-23 2:03 PM H.B. 228 - 29 - 865 (3) "Administrative penalty" means a monetary fine imposed by the division for acts or 866 omissions determined to constitute unprofessional or unlawful conduct, as a result of an 867 adjudicative proceeding conducted in accordance with Title 63G, Chapter 4, Administrative 868 Procedures Act. 869 (4) "AOA" means the American Osteopathic Association. 870 (5) "Associate physician" means an individual licensed under Section 58-68-302.5. 871 (6) "Board" means the Osteopathic Physician and Surgeon's Licensing Board created in 872 Section 58-68-201. 873 (7) "Collaborating physician" means an individual licensed under Section 58-68-302 874 who enters into a collaborative practice arrangement with an associate physician. 875 (8) "Collaborative practice arrangement" means the arrangement described in Section 876 58-68-807. 877 (9) (a) "Cosmetic medical device" means tissue altering energy based devices that have 878 the potential for altering living tissue and that are used to perform ablative or nonablative 879 procedures, such as American National Standards Institute (ANSI) designated Class IIIb and 880 Class IV lasers, intense pulsed light, radio frequency devices, and lipolytic devices and 881 excludes ANSI designated Class IIIa and lower powered devices. 882 (b) Notwithstanding Subsection (9)(a), if an ANSI designated Class IIIa and lower 883 powered device is being used to perform an ablative procedure, the device is included in the 884 definition of cosmetic medical device under Subsection (9)(a). 885 (10) "Cosmetic medical procedure": 886 (a) includes the use of cosmetic medical devices to perform ablative or nonablative 887 procedures; and 888 (b) does not include a treatment of the ocular globe such as refractive surgery. 889 (11) "Diagnose" means: 890 (a) to examine in any manner another person, parts of a person's body, substances, 891 fluids, or materials excreted, taken, or removed from a person's body, or produced by a person's 892 body, to determine the source, nature, kind, or extent of a disease or other physical or mental 893 condition; 894 (b) to attempt to conduct an examination or determination described under Subsection 895 (11)(a); H.B. 228 01-17-23 2:03 PM - 30 - 896 (c) to hold oneself out as making or to represent that one is making an examination or 897 determination as described in Subsection (11)(a); or 898 (d) to make an examination or determination as described in Subsection (11)(a) upon 899 or from information supplied directly or indirectly by another person, whether or not in the 900 presence of the person making or attempting the diagnosis or examination. 901 (12) "Medical assistant" means an unlicensed individual who may perform tasks as 902 described in Subsection 58-68-305(6). 903 (13) "Medically underserved area" means a geographic area in which there is a 904 shortage of primary care health services for residents, as determined by the Department of 905 Health and Human Services. 906 (14) "Medically underserved population" means a specified group of people living in a 907 defined geographic area with a shortage of primary care health services, as determined by the 908 Department of Health and Human Services. 909 (15) (a) (i) "Nonablative procedure" means a procedure that is expected or intended to 910 alter living tissue, but is not expected or intended to excise, vaporize, disintegrate, or remove 911 living tissue. 912 (ii) Notwithstanding Subsection (15)(a)(i), nonablative procedure includes hair 913 removal. 914 (b) "Nonablative procedure" does not include: 915 (i) a superficial procedure as defined in Section 58-1-102; 916 (ii) the application of permanent make-up; or 917 (iii) the use of photo therapy lasers for neuromusculoskeletal treatments that are 918 preformed by an individual licensed under this title who is acting within the individual's scope 919 of practice. 920 (16) "Physician" means both physicians and surgeons licensed under Section 921 58-67-301, Utah Medical Practice Act, and osteopathic physicians and surgeons licensed under 922 Section 58-68-301, Utah Osteopathic Medical Practice Act. 923 (17) (a) "Practice of osteopathic medicine" means: 924 (i) to diagnose, treat, correct, administer anesthesia, or prescribe for any human 925 disease, ailment, injury, infirmity, deformity, pain, or other condition, physical or mental, real 926 or imaginary, or to attempt to do so, by any means or instrumentality, which in whole or in part 01-17-23 2:03 PM H.B. 228 - 31 - 927 is based upon emphasis of the importance of the musculoskeletal system and manipulative 928 therapy in the maintenance and restoration of health, by an individual in Utah or outside of the 929 state upon or for any human within the state; 930 (ii) when a person not licensed as a physician directs a licensee under this chapter to 931 withhold or alter the health care services that the licensee has ordered; 932 (iii) to maintain an office or place of business for the purpose of doing any of the acts 933 described in Subsection (17)(a) whether or not for compensation; or 934 (iv) to use, in the conduct of any occupation or profession pertaining to the diagnosis or 935 treatment of human diseases or conditions, in any printed material, stationery, letterhead, 936 envelopes, signs, or advertisements, the designation "doctor," "doctor of osteopathic medicine," 937 "osteopathic physician," "osteopathic surgeon," "osteopathic physician and surgeon," "Dr.," 938 "D.O.," or any combination of these designations in any manner which might cause a 939 reasonable person to believe the individual using the designation is a licensed osteopathic 940 physician, and if the party using the designation is not a licensed osteopathic physician, the 941 designation must additionally contain the description of the branch of the healing arts for which 942 the person has a license, provided that an individual who has received an earned degree of 943 doctor of osteopathic medicine but is not a licensed osteopathic physician and surgeon in Utah 944 may use the designation "D.O." if it is followed by "Not Licensed" or "Not Licensed in Utah" 945 in the same size and style of lettering. 946 (b) The practice of osteopathic medicine does not include: 947 (i) except for an ablative medical procedure as provided in Subsection (17)(b)(ii), the 948 conduct described in Subsection (17)(a)(i) that is performed in accordance with a license issued 949 under another chapter of this title; 950 (ii) an ablative cosmetic medical procedure if the scope of practice for the person 951 performing the ablative cosmetic medical procedure includes the authority to operate or 952 perform a surgical procedure; or 953 (iii) conduct under Subsection 58-68-501(2). 954 (18) "Prescription device" means an instrument, apparatus, implement, machine, 955 contrivance, implant, in vitro reagent, or other similar or related article, and any component 956 part or accessory, which is required under federal or state law to be prescribed by a practitioner 957 and dispensed by or through a person or entity licensed under this chapter or exempt from H.B. 228 01-17-23 2:03 PM - 32 - 958 licensure under this chapter. 959 (19) "Prescription drug" means a drug that is required by federal or state law or rule to 960 be dispensed only by prescription or is restricted to administration only by practitioners. 961 (20) "SPEX" means the Special Purpose Examination of the Federation of State 962 Medical Boards. 963 (21) "Unlawful conduct" means the same as that term is defined in Sections 58-1-501 964 and 58-68-501. 965 (22) "Unprofessional conduct" means the same as that term is defined in Sections 966 58-1-501 and 58-68-502 and as may be further defined by division rule subject to Subsections 967 58-1-501(2)(b) and 58-68-502(2)(c). 968 Section 14. Section 58-68-502 is amended to read: 969 58-68-502. Unprofessional conduct. 970 (1) "Unprofessional conduct" includes, in addition to the definition in Section 971 58-1-501: 972 (a) using or employing the services of any individual to assist a licensee in any manner 973 not in accordance with the generally recognized practices, standards, or ethics of the 974 profession, state law, or division rule; 975 (b) violating the dispensing requirements of Chapter 17b, Part 8, Dispensing Medical 976 Practitioner and Dispensing Medical Practitioner Clinic Pharmacy, if applicable; 977 (c) making a material misrepresentation regarding the qualifications for licensure under 978 Section 58-68-302.5; 979 (d) violating the requirements of Title 26, Chapter 61a, Utah Medical Cannabis Act; 980 [or] 981 (e) falsely making an entry in, or altering, a medical record with the intent to conceal: 982 (i) a wrongful or negligent act or omission of an individual licensed under this chapter 983 or an individual under the direction or control of an individual licensed under this chapter; or 984 (ii) conduct described in Subsections (1)(a) through (d) or Subsection 58-1-501(1)[.]; 985 or 986 (f) a violation of Section 58-1-511. 987 (2) "Unprofessional conduct" does not include: 988 (a) in compliance with Section 58-85-103: 01-17-23 2:03 PM H.B. 228 - 33 - 989 (i) obtaining an investigational drug or investigational device; 990 (ii) administering the investigational drug to an eligible patient; or 991 (iii) treating an eligible patient with the investigational drug or investigational device; 992 [or] 993 (b) in accordance with Title 26, Chapter 61a, Utah Medical Cannabis Act: 994 (i) when registered as a qualified medical provider or acting as a limited medical 995 provider, as those terms are defined in Section 26-61a-102, recommending the use of medical 996 cannabis; 997 (ii) when registered as a pharmacy medical provider, as that term is defined in Section 998 26-61a-102, providing pharmacy medical provider services in a medical cannabis pharmacy; or 999 (iii) when registered as a state central patient portal medical provider, as that term is 1000 defined in Section 26-61a-102, providing state central patient portal medical provider 1001 services[.]; or 1002 (c) verbal or written communication by itself, except where a verbal or written 1003 communication by itself constitutes conduct described in Section 58-1-501 or Subsection (1). 1004 (3) Notwithstanding Subsection (2)(b), the division, in consultation with the board and 1005 in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, shall define 1006 unprofessional conduct for a physician described in Subsection (2)(b). 1007 Section 15. Section 58-70a-102 is amended to read: 1008 58-70a-102. Definitions. 1009 In addition to the definitions in Section 58-1-102, as used in this chapter: 1010 (1) "Board" means the Physician Assistant Licensing Board created in Section 1011 58-70a-201. 1012 (2) "Competence" means possessing the requisite cognitive, non-cognitive, and 1013 communicative abilities and qualities to perform effectively within the scope of practice of the 1014 physician assistant's practice while adhering to professional and ethical standards. 1015 (3) "Health care facility" means the same as that term is defined in Section 26-21-2. 1016 (4) "Mental health therapist" means the same as that term is defined in Section 1017 58-60-102. 1018 (5) "Physician" means the same as that term is defined in Section 58-67-102. 1019 (6) "Physician assistant" means an individual who is licensed to practice under this H.B. 228 01-17-23 2:03 PM - 34 - 1020 chapter. 1021 (7) "Practice as a physician assistant" means the professional activities and conduct of 1022 a physician assistant, also known as a PA, in diagnosing, treating, advising, or prescribing for 1023 any human disease, ailment, injury, infirmity, deformity, pain, or other condition under the 1024 provisions of this chapter. 1025 (8) "Practice of mental health therapy" means the same as that term is defined in 1026 Section 58-60-102. 1027 (9) "Unlawful conduct" means the same as that term is defined in Sections 58-1-501 1028 and 58-70a-502. 1029 (10) "Unprofessional conduct" means "unprofessional conduct": 1030 (a) as defined in Sections 58-1-501 and 58-70a-503; and 1031 (b) as further defined by the division by rule subject to Subsections 58-1-501(2)(b) and 1032 58-70a-503(3). 1033 Section 16. Section 58-70a-503 is amended to read: 1034 58-70a-503. Unprofessional conduct. 1035 (1) "Unprofessional conduct" includes: 1036 (a) violation of a patient confidence to any person who does not have a legal right and a 1037 professional need to know the information concerning the patient; 1038 (b) knowingly prescribing, selling, giving away, or directly or indirectly administering, 1039 or offering to prescribe, sell, furnish, give away, or administer any prescription drug except for 1040 a legitimate medical purpose upon a proper diagnosis indicating use of that drug in the amounts 1041 prescribed or provided; 1042 (c) prescribing prescription drugs for oneself or administering prescription drugs to 1043 oneself, except those that have been legally prescribed for the physician assistant by a licensed 1044 practitioner and that are used in accordance with the prescription order for the condition 1045 diagnosed; 1046 (d) in a practice that has physician assistant ownership interests, failure to allow a 1047 physician the independent final decision making authority on treatment decisions for the 1048 physician's patient; 1049 (e) violating the dispensing requirements of Chapter 17b, Part 8, Dispensing Medical 1050 Practitioner and Dispensing Medical Practitioner Clinic Pharmacy, if applicable; 01-17-23 2:03 PM H.B. 228 - 35 - 1051 (f) falsely making an entry in, or altering, a medical record with the intent to conceal: 1052 (i) a wrongful or negligent act or omission of an individual licensed under this chapter 1053 or an individual under the direction or control of an individual licensed under this chapter; or 1054 (ii) conduct described in Subsections (1)(a) through (e) or Subsection 58-1-501(1); 1055 [and] 1056 (g) violating the requirements of Title 26, Chapter 61a, Utah Medical Cannabis Act[.]; 1057 and 1058 (h) a violation of Section 58-1-511. 1059 (2) (a) "Unprofessional conduct" does not include, in accordance with Title 26, Chapter 1060 61a, Utah Medical Cannabis Act, when registered as a qualified medical provider or acting as a 1061 limited medical provider, as those terms are defined in Section 26-61a-102, recommending the 1062 use of medical cannabis. 1063 (b) Notwithstanding Subsection (2)(a), the division, in consultation with the board and 1064 in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, shall define 1065 unprofessional conduct for a physician assistant described in Subsection (2)(a). 1066 (3) "Unprofessional conduct" does not include verbal or written communication by 1067 itself, except where a verbal or written communication by itself constitutes conduct described 1068 in Section 58-1-501 or Subsection (1).

Enrolled Copy H.B. 228 1 UNPROFESSIONAL CONDUCT AMENDMENTS 2 2023 GENERAL SESSION 3 STATE OF UTAH 4 Chief Sponsor: Michael J. Petersen 5 Senate Sponsor: Curtis S. Bramble 6 Cosponsors: 7 Nelson T. Abbott 8 Cheryl K. Acton 9 Carl R. Albrecht 10 Kera Birkeland 11 Bridger Bolinder 12 Brady Brammer 13 Walt Brooks 14 Jefferson S. Burton 15 Kay J. Christofferson 16 Joseph Elison 17 Matthew H. Gwynn Katy Hall Jon Hawkins Colin W. Jack Tim Jimenez Dan N. Johnson Marsha Judkins Quinn Kotter Jason B. Kyle Trevor Lee Karianne Lisonbee Steven J. Lund Phil Lyman A. Cory Maloy Calvin R. Musselman Judy Weeks Rohner Rex P. Shipp Casey Snider Keven J. Stratton Mark A. Strong Jordan D. Teuscher Christine F. Watkins Douglas R. Welton 18 19 LONG TITLE 20 General Description: 21 This bill modifies and enacts provisions relating to the provision of conversion therapy 22 to minors. 23 Highlighted Provisions: 24 This bill: 25 < defines terms; 26 < prohibits certain health care professionals from providing conversion therapy to a 27 minor client; 28 < includes a severability clause; and H.B. 228 Enrolled Copy - 2 - 29 < makes technical and conforming changes. 30 Money Appropriated in this Bill: 31 None 32 Other Special Clauses: 33 None 34 Utah Code Sections Affected: 35 AMENDS: 36 58-1-501, as last amended by Laws of Utah 2020, Chapters 289, 339 37 ENACTS: 38 58-1-511, Utah Code Annotated 1953 39 40 Be it enacted by the Legislature of the state of Utah: 41 Section 1. Section 58-1-501 is amended to read: 42 58-1-501. Unlawful and unprofessional conduct. 43 (1) "Unlawful conduct" means conduct, by any person, that is defined as unlawful 44 under this title and includes: 45 (a) practicing or engaging in, representing oneself to be practicing or engaging in, or 46 attempting to practice or engage in any occupation or profession requiring licensure under this 47 title if the person is: 48 (i) not licensed to do so or not exempted from licensure under this title; or 49 (ii) restricted from doing so by a suspended, revoked, restricted, temporary, 50 probationary, or inactive license; 51 (b) (i) impersonating another licensee or practicing an occupation or profession under a 52 false or assumed name, except as permitted by law; or 53 (ii) for a licensee who has had a license under this title reinstated following disciplinary 54 action, practicing the same occupation or profession using a different name than the name used 55 before the disciplinary action, except as permitted by law and after notice to, and approval by, 56 the division; Enrolled Copy H.B. 228 - 3 - 57 (c) knowingly employing any other person to practice or engage in or attempt to 58 practice or engage in any occupation or profession licensed under this title if the employee is 59 not licensed to do so under this title; 60 (d) knowingly permitting the person's authority to practice or engage in any occupation 61 or profession licensed under this title to be used by another, except as permitted by law; 62 (e) obtaining a passing score on a licensure examination, applying for or obtaining a 63 license, or otherwise dealing with the division or a licensing board through the use of fraud, 64 forgery, or intentional deception, misrepresentation, misstatement, or omission; 65 (f) (i) issuing, or aiding and abetting in the issuance of, an order or prescription for a 66 drug or device to a person located in this state: 67 (A) without prescriptive authority conferred by a license issued under this title, or by 68 an exemption to licensure under this title; or 69 (B) with prescriptive authority conferred by an exception issued under this title or a 70 multistate practice privilege recognized under this title, if the prescription was issued without 71 first obtaining information, in the usual course of professional practice, that is sufficient to 72 establish a diagnosis, to identify underlying conditions, and to identify contraindications to the 73 proposed treatment; and 74 (ii) Subsection (1)(f)(i) does not apply to treatment rendered in an emergency, on-call 75 or cross coverage situation, provided that the person who issues the prescription has 76 prescriptive authority conferred by a license under this title, or is exempt from licensure under 77 this title; or 78 (g) aiding or abetting any other person to violate any statute, rule, or order regulating 79 an occupation or profession under this title. 80 (2) "Unprofessional conduct" means conduct, by a licensee or applicant, that is defined 81 as unprofessional conduct under this title or under any rule adopted under this title and 82 includes: 83 (a) violating any statute, rule, or order regulating an occupation or profession under this 84 title; H.B. 228 Enrolled Copy - 4 - 85 (b) violating, or aiding or abetting any other person to violate, any generally accepted 86 professional or ethical standard applicable to an occupation or profession regulated under this 87 title; 88 (c) subject to the provisions of Subsection (4), engaging in conduct that results in 89 conviction, a plea of nolo contendere, or a plea of guilty or nolo contendere that is held in 90 abeyance pending the successful completion of probation with respect to a crime of moral 91 turpitude or any other crime that, when considered with the functions and duties of the 92 occupation or profession for which the license was issued or is to be issued, bears a substantial 93 relationship to the licensee's or applicant's ability to safely or competently practice the 94 occupation or profession; 95 (d) engaging in conduct that results in disciplinary action, including reprimand, 96 censure, diversion, probation, suspension, or revocation, by any other licensing or regulatory 97 authority having jurisdiction over the licensee or applicant in the same occupation or profession 98 if the conduct would, in this state, constitute grounds for denial of licensure or disciplinary 99 proceedings under Section 58-1-401; 100 (e) engaging in conduct, including the use of intoxicants, drugs, narcotics, or similar 101 chemicals, to the extent that the conduct does, or might reasonably be considered to, impair the 102 ability of the licensee or applicant to safely engage in the occupation or profession; 103 (f) practicing or attempting to practice an occupation or profession regulated under this 104 title despite being physically or mentally unfit to do so; 105 (g) practicing or attempting to practice an occupation or profession regulated under this 106 title through gross incompetence, gross negligence, or a pattern of incompetency or negligence; 107 (h) practicing or attempting to practice an occupation or profession requiring licensure 108 under this title by any form of action or communication which is false, misleading, deceptive, 109 or fraudulent; 110 (i) practicing or attempting to practice an occupation or profession regulated under this 111 title beyond the scope of the licensee's competency, abilities, or education; 112 (j) practicing or attempting to practice an occupation or profession regulated under this Enrolled Copy H.B. 228 - 5 - 113 title beyond the scope of the licensee's license; 114 (k) verbally, physically, mentally, or sexually abusing or exploiting any person through 115 conduct connected with the licensee's practice under this title or otherwise facilitated by the 116 licensee's license; 117 (l) acting as a supervisor without meeting the qualification requirements for that 118 position that are defined by statute or rule; 119 (m) issuing, or aiding and abetting in the issuance of, an order or prescription for a 120 drug or device: 121 (i) without first obtaining information in the usual course of professional practice, that 122 is sufficient to establish a diagnosis, to identify conditions, and to identify contraindications to 123 the proposed treatment; or 124 (ii) with prescriptive authority conferred by an exception issued under this title, or a 125 multi-state practice privilege recognized under this title, if the prescription was issued without 126 first obtaining information, in the usual course of professional practice, that is sufficient to 127 establish a diagnosis, to identify underlying conditions, and to identify contraindications to the 128 proposed treatment; 129 (n) violating a provision of Section 58-1-501.5; [or] 130 (o) violating the terms of an order governing a license[.]; or 131 (p) violating Section 58-1-511. 132 (3) Unless otherwise specified by statute or administrative rule, in a civil or 133 administrative proceeding commenced by the division under this title, a person subject to any 134 of the unlawful and unprofessional conduct provisions of this title is strictly liable for each 135 violation. 136 (4) The following are not evidence of engaging in unprofessional conduct under 137 Subsection (2)(c): 138 (a) an arrest not followed by a conviction; or 139 (b) a conviction for which an individual's incarceration has ended more than seven 140 years before the date of the division's consideration, unless: H.B. 228 Enrolled Copy - 6 - 141 (i) after the incarceration the individual has engaged in additional conduct that results 142 in another conviction, a plea of nolo contendere, or a plea of guilty or nolo contendere that is 143 held in abeyance pending the successful completion of probation; or 144 (ii) the conviction was for: 145 (A) a violent felony as defined in Section 76-3-203.5; 146 (B) a felony related to a criminal sexual act pursuant to Title 76, Chapter 5, Part 4, 147 Sexual Offenses, or Title 76, Chapter 5b, Sexual Exploitation Act; or 148 (C) a felony related to criminal fraud or embezzlement, including a felony pursuant to 149 Title 76, Chapter 6, Part 5, Fraud, or Title 76, Chapter 6, Part 4, Theft. 150 Section 2. Section 58-1-511 is enacted to read: 151 58-1-511. Prohibition on providing conversion therapy to a minor. 152 (1) As used in this section: 153 (a) "Conversion therapy" means a practice or treatment by which a health care 154 professional intends to change a minor client's sexual orientation or gender identity, or to 155 impose a different sexual orientation or gender identity upon a minor client, including a 156 practice or treatment that: 157 (i) subjects a minor client to physical discomfort through aversive treatment that causes 158 nausea, vomiting, or other unpleasant physical sensation; 159 (ii) provides electric shock or other electrical therapy, including electroconvulsive 160 therapy or transcranial magnetic stimulation; 161 (iii) subjects a minor client to touching themself or another individual as part of the 162 therapy; or 163 (iv) causes the minor client to engage in physical self-harm or physical self-inflicted 164 pain. 165 (b) "Health care professional" means an individual who is licensed, or an individual 166 who provides mental health therapy as part of the individual's training for a profession that is 167 licensed, under: 168 (i) Chapter 31b, Nurse Practice Act; Enrolled Copy H.B. 228 - 7 - 169 (ii) Chapter 60, Mental Health Professional Practice Act; 170 (iii) Chapter 61, Psychologist Licensing Act; 171 (iv) Chapter 67, Utah Medical Practice Act; 172 (v) Chapter 68, Utah Osteopathic Medical Practice Act; or 173 (vi) Chapter 70a, Utah Physician Assistant Act. 174 (c) "Minor client" means an individual who is younger than 18 years old and who 175 consults, is examined or interviewed by, or receives services, care, or treatment from a health 176 care professional who is acting in their professional capacity. 177 (d) "Religious advisor" means an individual who is designated by a religious 178 organization or association as clergy, minister, pastor, priest, rabbi, imam, bishop, stake 179 president, or other spiritual advisor. 180 (e) (i) "Sexual orientation" means the same as that term is defined in Section 181 34A-5-102. 182 (ii) "Sexual orientation" does not include an action that would constitute sexual abuse 183 or sexual exploitation as those terms are defined in Section 80-1-102. 184 (2) A health care professional who is acting in their professional capacity may not 185 provide conversion therapy to a minor client. 186 (3) A health care professional who is not intending to change a minor client's sexual 187 orientation or gender identity, or to impose a different sexual orientation or gender identity 188 upon a minor client, may engage in any professional and lawful conduct, including a practice or 189 treatment by which the health care professional: 190 (a) is neutral with respect to sexual orientation and gender identity; 191 (b) provides a minor client with acceptance, support, and understanding; 192 (c) provides treatment to a minor client who is considering a gender transition in any 193 direction, including exploration of the timing thereof; 194 (d) facilitates a minor client's social support, ability to cope, or the exploration and 195 development of the minor client's identity, including sexual orientation or gender identity; 196 (e) addresses unlawful, unsafe, premarital, or extramarital sexual activities in a manner H.B. 228 Enrolled Copy - 8 - 197 that is neutral with respect to sexual orientation and gender identity; 198 (f) discusses moral, philosophical, or religious beliefs or practices; 199 (g) addresses body-image issues, social pressure, or sex or gender stereotypes; 200 (h) addresses co-occurring mental health, neurological, developmental, trauma, or 201 family issues; 202 (i) helps a minor client to understand and assess the stages and timing of identity 203 development; 204 (j) consistent with other applicable laws, rules, orders, and ethical standards, discusses 205 with a minor client's parent or guardian the mental health or development of a minor client; or 206 (k) assists the minor client to understand the medical, social, or other implications of 207 decisions related to sexual orientation or gender identity. 208 (4) Subsection (2) does not apply to: 209 (a) an individual who is both a health care professional and a religious advisor, when 210 the individual is acting substantially in the capacity of a religious advisor and not in the 211 capacity of a health care professional; or 212 (b) an individual who is both a health care professional and a parent or grandparent, 213 when the individual is acting substantially in the capacity of a parent or grandparent and not in 214 the capacity of a health care professional. 215 (5) A violation of this section is unprofessional conduct. 216 (6) A rule adopted under this title that defines "unprofessional conduct" shall be 217 consistent with this section. 218 (7) If any provision of this section or the application of any provision to any person or 219 circumstance is held invalid by a final decision of a court of competent jurisdiction, the 220 invalidity does not affect other provisions or applications of this section which can be given 221 effect without the invalid provision or application, and to this end the provisions of this section 222 are severable.