Text of UT SB 16 (2023)

S.B. 16 LEGISLATIVE GENERAL COUNSEL 6 Approved for Filing: C. Williams 6 6 12-16-22 2:09 PM 6 S.B. 16 1 SEX CHARACTERISTIC SURGICAL PROCEDURES 2 2023 GENERAL SESSION 3 STATE OF UTAH 4 Chief Sponsor: Michael S. Kennedy 5 House Sponsor: ____________ 6 7 LONG TITLE 8 Committee Note: 9 The Health and Human Services Interim Committee recommended this bill. 10 Legislative Vote: 12 voting for 5 voting against 1 absent 11 General Description: 12 This bill enacts provisions regarding sex characteristic surgical procedures. 13 Highlighted Provisions: 14 This bill: 15 < defines terms; 16 < prohibits performing sex characteristic surgical procedures on a minor for the 17 purpose of effectuating a sex change; and 18 < makes technical changes. 19 Money Appropriated in this Bill: 20 None 21 Other Special Clauses: 22 None 23 Utah Code Sections Affected: 24 AMENDS: 25 58-67-102, as last amended by Laws of Utah 2022, Chapter 233 26 58-67-502, as last amended by Laws of Utah 2021, Chapter 337 27 58-68-102, as last amended by Laws of Utah 2022, Chapter 233 *SB0016* S.B. 16 12-16-22 2:09 PM - 2 - 28 58-68-502, as last amended by Laws of Utah 2021, Chapter 337 29 30 Be it enacted by the Legislature of the state of Utah: 31 Section 1. Section 58-67-102 is amended to read: 32 58-67-102. Definitions. 33 In addition to the definitions in Section 58-1-102, as used in this chapter: 34 (1) (a) "Ablative procedure" means a procedure that is expected to excise, vaporize, 35 disintegrate, or remove living tissue, including the use of carbon dioxide lasers and erbium: 36 YAG lasers. 37 (b) "Ablative procedure" does not include hair removal. 38 (2) "ACGME" means the Accreditation Council for Graduate Medical Education of the 39 American Medical Association. 40 (3) "Administrative penalty" means a monetary fine or citation imposed by the division 41 for acts or omissions determined to constitute unprofessional or unlawful conduct, in 42 accordance with a fine schedule established by the division in collaboration with the board, as a 43 result of an adjudicative proceeding conducted in accordance with Title 63G, Chapter 4, 44 Administrative Procedures Act. 45 (4) "Associate physician" means an individual licensed under Section 58-67-302.8. 46 (5) "Attempted sex change" means an attempt or effort to change an individual's body 47 to present that individual as being of a sex or gender that is different from the individual's 48 biological sex at birth. 49 (6) "Biological sex at birth" means an individual's sex, as being male or female, 50 according to distinct reproductive roles as manifested by: 51 (a) sex and reproductive organ anatomy; 52 (b) chromosomal makeup; and 53 (c) endogenous hormone profiles. 54 [(5)] (7) "Board" means the Physicians Licensing Board created in Section 58-67-201. 55 [(6)] (8) "Collaborating physician" means an individual licensed under Section 56 58-67-302 who enters into a collaborative practice arrangement with an associate physician. 57 [(7)] (9) "Collaborative practice arrangement" means the arrangement described in 58 Section 58-67-807. 12-16-22 2:09 PM S.B. 16 - 3 - 59 [(8)] (10) (a) "Cosmetic medical device" means tissue altering energy based devices 60 that have the potential for altering living tissue and that are used to perform ablative or 61 nonablative procedures, such as American National Standards Institute (ANSI) designated 62 Class IIIb and Class IV lasers, intense pulsed light, radio frequency devices, and lipolytic 63 devices, and excludes ANSI designated Class IIIa and lower powered devices. 64 (b) Notwithstanding Subsection [(8)(a)] (10)(a), if an ANSI designated Class IIIa and 65 lower powered device is being used to perform an ablative procedure, the device is included in 66 the definition of cosmetic medical device under Subsection [(8)(a)] (10)(a). 67 [(9)] (11) "Cosmetic medical procedure": 68 (a) includes the use of cosmetic medical devices to perform ablative or nonablative 69 procedures; and 70 (b) does not include a treatment of the ocular globe such as refractive surgery. 71 [(10)] (12) "Diagnose" means: 72 (a) to examine in any manner another person, parts of a person's body, substances, 73 fluids, or materials excreted, taken, or removed from a person's body, or produced by a person's 74 body, to determine the source, nature, kind, or extent of a disease or other physical or mental 75 condition; 76 (b) to attempt to conduct an examination or determination described under Subsection 77 [(10)(a);] (12)(a); 78 (c) to hold oneself out as making or to represent that one is making an examination or 79 determination as described in Subsection [(10)(a);] (12)(a); or 80 (d) to make an examination or determination as described in Subsection [(10)(a)] 81 (12)(a) upon or from information supplied directly or indirectly by another person, whether or 82 not in the presence of the person making or attempting the diagnosis or examination. 83 [(11)] (13) "LCME" means the Liaison Committee on Medical Education of the 84 American Medical Association. 85 [(12)] (14) "Medical assistant" means an unlicensed individual who may perform tasks 86 as described in Subsection 58-67-305(6). 87 [(13)] (15) "Medically underserved area" means a geographic area in which there is a 88 shortage of primary care health services for residents, as determined by the Department of 89 Health and Human Services. S.B. 16 12-16-22 2:09 PM - 4 - 90 [(14)] (16) "Medically underserved population" means a specified group of people 91 living in a defined geographic area with a shortage of primary care health services, as 92 determined by the Department of Health and Human Services. 93 [(15)] (17) (a) (i) "Nonablative procedure" means a procedure that is expected or 94 intended to alter living tissue, but is not intended or expected to excise, vaporize, disintegrate, 95 or remove living tissue. 96 (ii) Notwithstanding Subsection [(15)(a)(i),] (17)(a)(i) nonablative procedure includes 97 hair removal. 98 (b) "Nonablative procedure" does not include: 99 (i) a superficial procedure as defined in Section 58-1-102; 100 (ii) the application of permanent make-up; or 101 (iii) the use of photo therapy and lasers for neuromusculoskeletal treatments that are 102 performed by an individual licensed under this title who is acting within the individual's scope 103 of practice. 104 [(16)] (18) "Physician" means both physicians and surgeons licensed under Section 105 58-67-301, Utah Medical Practice Act, and osteopathic physicians and surgeons licensed under 106 Section 58-68-301, Utah Osteopathic Medical Practice Act. 107 [(17)] (19) (a) "Practice of medicine" means: 108 (i) to diagnose, treat, correct, administer anesthesia, or prescribe for any human 109 disease, ailment, injury, infirmity, deformity, pain or other condition, physical or mental, real 110 or imaginary, including to perform cosmetic medical procedures, or to attempt to do so, by any 111 means or instrumentality, and by an individual in Utah or outside the state upon or for any 112 human within the state; 113 (ii) when a person not licensed as a physician directs a licensee under this chapter to 114 withhold or alter the health care services that the licensee has ordered; 115 (iii) to maintain an office or place of business for the purpose of doing any of the acts 116 described in Subsection [(17)(a)] (19)(a)(i) or (ii) whether or not for compensation; or 117 (iv) to use, in the conduct of any occupation or profession pertaining to the diagnosis or 118 treatment of human diseases or conditions in any printed material, stationery, letterhead, 119 envelopes, signs, or advertisements, the designation "doctor," "doctor of medicine," 120 "physician," "surgeon," "physician and surgeon," "Dr.," "M.D.," or any combination of these 12-16-22 2:09 PM S.B. 16 - 5 - 121 designations in any manner which might cause a reasonable person to believe the individual 122 using the designation is a licensed physician and surgeon, and if the party using the designation 123 is not a licensed physician and surgeon, the designation must additionally contain the 124 description of the branch of the healing arts for which the person has a license, provided that an 125 individual who has received an earned degree of doctor of medicine degree but is not a licensed 126 physician and surgeon in Utah may use the designation "M.D." if it is followed by "Not 127 Licensed" or "Not Licensed in Utah" in the same size and style of lettering. 128 (b) The practice of medicine does not include: 129 (i) except for an ablative medical procedure as provided in Subsection [(17)(b)(ii),] 130 (19)(b)(ii) the conduct described in Subsection [(17)(a)(i)] (19)(a)(i) that is performed in 131 accordance with a license issued under another chapter of this title; 132 (ii) an ablative cosmetic medical procedure if the scope of practice for the person 133 performing the ablative cosmetic medical procedure includes the authority to operate or 134 perform a surgical procedure; or 135 (iii) conduct under Subsection 58-67-501(2). 136 [(18)] (20) "Prescription device" means an instrument, apparatus, implement, machine, 137 contrivance, implant, in vitro reagent, or other similar or related article, and any component 138 part or accessory, which is required under federal or state law to be prescribed by a practitioner 139 and dispensed by or through a person or entity licensed under this chapter or exempt from 140 licensure under this chapter. 141 [(19)] (21) "Prescription drug" means a drug that is required by federal or state law or 142 rule to be dispensed only by prescription or is restricted to administration only by practitioners. 143 (22) (a) "Primary sex characteristic surgical procedure" means any of the following if 144 done for the purpose of effectuating or facilitating an individual's attempted sex change: 145 (i) for an individual whose biological sex at birth is male, castration, orchiectomy, 146 penectomy, vaginoplasty, or vulvoplasty; 147 (ii) for an individual whose biological sex at birth is female, hysterectomy, 148 oophorectomy, metoidioplasty, or phalloplasty; or 149 (iii) any surgical procedure that is related to or necessary for a procedure described in 150 Subsection (22)(a)(i) or (ii), that would result in the sterilization of an individual who is not 151 sterile. S.B. 16 12-16-22 2:09 PM - 6 - 152 (b) "Primary sex characteristic surgical procedure" does not include: 153 (i) surgery or other procedures or treatments performed on an individual who: 154 (A) is born with external biological sex characteristics that are irresolvably ambiguous; 155 (B) is born with 46, XX chromosomes with virilization; 156 (C) is born with 46, XY chromosomes with undervirilization; 157 (D) has both ovarian and testicular tissue; or 158 (E) has been diagnosed by a physician, based on genetic or biochemical testing, with a 159 sex development disorder characterized by abnormal sex chromosome structure, sex steroid 160 hormone production, or sex steroid hormone action for a male or female; or 161 (ii) removing a body part: 162 (A) because the body part is cancerous or diseased; or 163 (B) for a reason that is medically necessary, other than to effectuate or facilitate an 164 individual's attempted sex change. 165 (23) (a) "Secondary sex characteristic surgical procedure" means any of the following 166 if done for the purpose of effectuating or facilitating an individual's attempted sex change: 167 (i) for an individual whose biological sex at birth is male, breast augmentation surgery, 168 chest feminization surgery, or facial feminization surgery; or 169 (ii) for an individual whose biological sex at birth is female, mastectomy, breast 170 reduction surgery, chest masculinization surgery, or facial masculinization surgery. 171 (b) "Secondary sex characteristic surgical procedure" does not include: 172 (i) surgery or other procedures or treatments performed on an individual who: 173 (A) is born with external biological sex characteristics that are irresolvably ambiguous; 174 (B) is born with 46, XX chromosomes with virilization; 175 (C) is born with 46, XY chromosomes with undervirilization; 176 (D) has both ovarian and testicular tissue; or 177 (E) has been diagnosed by a physician, based on genetic or biochemical testing, with a 178 sex development disorder characterized by abnormal sex chromosome structure, sex steroid 179 hormone production, or sex steroid hormone action for a male or female; or 180 (ii) removing a body part: 181 (A) because the body part is cancerous or diseased; or 182 (B) for a reason that is medically necessary, other than to effectuate or facilitate an 12-16-22 2:09 PM S.B. 16 - 7 - 183 individual's attempted sex change. 184 [(20)] (24) "SPEX" means the Special Purpose Examination of the Federation of State 185 Medical Boards. 186 [(21)] (25) "Unlawful conduct" means the same as that term is defined in Sections 187 58-1-501 and 58-67-501. 188 [(22)] (26) "Unprofessional conduct" means the same as that term is defined in 189 Sections 58-1-501 and 58-67-502, and as may be further defined by division rule. 190 Section 2. Section 58-67-502 is amended to read: 191 58-67-502. Unprofessional conduct. 192 (1) "Unprofessional conduct" includes, in addition to the definition in Section 193 58-1-501: 194 (a) using or employing the services of any individual to assist a licensee in any manner 195 not in accordance with the generally recognized practices, standards, or ethics of the 196 profession, state law, or division rule; 197 (b) making a material misrepresentation regarding the qualifications for licensure under 198 Section 58-67-302.7 or [Section] 58-67-302.8; 199 (c) violating the dispensing requirements of Chapter 17b, Part 8, Dispensing Medical 200 Practitioner and Dispensing Medical Practitioner Clinic Pharmacy, if applicable; 201 (d) violating the requirements of Title 26, Chapter 61a, Utah Medical Cannabis Act; 202 [or] 203 (e) falsely making an entry in, or altering, a medical record with the intent to conceal: 204 (i) a wrongful or negligent act or omission of an individual licensed under this chapter 205 or an individual under the direction or control of an individual licensed under this chapter; or 206 (ii) conduct described in Subsections (1)(a) through (d) or Subsection 58-1-501(1)[.]; 207 or 208 (f) performing, or causing to be performed, upon an individual who is less than 18 209 years old: 210 (i) a primary sex characteristic surgical procedure; or 211 (ii) a secondary sex characteristic surgical procedure. 212 (2) "Unprofessional conduct" does not include: 213 (a) in compliance with Section 58-85-103: S.B. 16 12-16-22 2:09 PM - 8 - 214 (i) obtaining an investigational drug or investigational device; 215 (ii) administering the investigational drug to an eligible patient; or 216 (iii) treating an eligible patient with the investigational drug or investigational device; 217 or 218 (b) in accordance with Title 26, Chapter 61a, Utah Medical Cannabis Act: 219 (i) when registered as a qualified medical provider or acting as a limited medical 220 provider, as those terms are defined in Section 26-61a-102, recommending the use of medical 221 cannabis; 222 (ii) when registered as a pharmacy medical provider, as that term is defined in Section 223 26-61a-102, providing pharmacy medical provider services in a medical cannabis pharmacy; or 224 (iii) when registered as a state central patient portal medical provider, as that term is 225 defined in Section 26-61a-102, providing state central patient portal medical provider services. 226 (3) Notwithstanding Subsection (2)(b), the division, in consultation with the board and 227 in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, shall define 228 unprofessional conduct for a physician described in Subsection (2)(b). 229 Section 3. Section 58-68-102 is amended to read: 230 58-68-102. Definitions. 231 In addition to the definitions in Section 58-1-102, as used in this chapter: 232 (1) (a) "Ablative procedure" means a procedure that is expected to excise, vaporize, 233 disintegrate, or remove living tissue, including the use of carbon dioxide lasers and erbium: 234 YAG lasers. 235 (b) "Ablative procedure" does not include hair removal. 236 (2) "ACGME" means the Accreditation Council for Graduate Medical Education of the 237 American Medical Association. 238 (3) "Administrative penalty" means a monetary fine imposed by the division for acts or 239 omissions determined to constitute unprofessional or unlawful conduct, as a result of an 240 adjudicative proceeding conducted in accordance with Title 63G, Chapter 4, Administrative 241 Procedures Act. 242 (4) "AOA" means the American Osteopathic Association. 243 (5) "Associate physician" means an individual licensed under Section 58-68-302.5. 244 (6) "Attempted sex change" means an attempt or effort to change an individual's body 12-16-22 2:09 PM S.B. 16 - 9 - 245 to present that individual as being of a sex or gender that is different from the individual's 246 biological sex at birth. 247 (7) "Biological sex at birth" means an individual's sex, as being male or female, 248 according to distinct reproductive roles as manifested by: 249 (a) sex and reproductive organ anatomy; 250 (b) chromosomal makeup; and 251 (c) endogenous hormone profiles. 252 [(6)] (8) "Board" means the Osteopathic Physician and Surgeon's Licensing Board 253 created in Section 58-68-201. 254 [(7)] (9) "Collaborating physician" means an individual licensed under Section 255 58-68-302 who enters into a collaborative practice arrangement with an associate physician. 256 [(8)] (10) "Collaborative practice arrangement" means the arrangement described in 257 Section 58-68-807. 258 [(9)] (11) (a) "Cosmetic medical device" means tissue altering energy based devices 259 that have the potential for altering living tissue and that are used to perform ablative or 260 nonablative procedures, such as American National Standards Institute (ANSI) designated 261 Class IIIb and Class IV lasers, intense pulsed light, radio frequency devices, and lipolytic 262 devices and excludes ANSI designated Class IIIa and lower powered devices. 263 (b) Notwithstanding Subsection [(9)(a)] (11)(a), if an ANSI designated Class IIIa and 264 lower powered device is being used to perform an ablative procedure, the device is included in 265 the definition of cosmetic medical device under Subsection [(9)(a)] (11)(a). 266 [(10)] (12) "Cosmetic medical procedure": 267 (a) includes the use of cosmetic medical devices to perform ablative or nonablative 268 procedures; and 269 (b) does not include a treatment of the ocular globe such as refractive surgery. 270 [(11)] (13) "Diagnose" means: 271 (a) to examine in any manner another person, parts of a person's body, substances, 272 fluids, or materials excreted, taken, or removed from a person's body, or produced by a person's 273 body, to determine the source, nature, kind, or extent of a disease or other physical or mental 274 condition; 275 (b) to attempt to conduct an examination or determination described under Subsection S.B. 16 12-16-22 2:09 PM - 10 - 276 [(11)(a)] (13)(a); 277 (c) to hold oneself out as making or to represent that one is making an examination or 278 determination as described in Subsection [(11)(a)] (13)(a); or 279 (d) to make an examination or determination as described in Subsection [(11)(a)] 280 (13)(a) upon or from information supplied directly or indirectly by another person, whether or 281 not in the presence of the person making or attempting the diagnosis or examination. 282 [(12)] (14) "Medical assistant" means an unlicensed individual who may perform tasks 283 as described in Subsection 58-68-305(6). 284 [(13)] (15) "Medically underserved area" means a geographic area in which there is a 285 shortage of primary care health services for residents, as determined by the Department of 286 Health and Human Services. 287 [(14)] (16) "Medically underserved population" means a specified group of people 288 living in a defined geographic area with a shortage of primary care health services, as 289 determined by the Department of Health and Human Services. 290 [(15)] (17) (a) (i) "Nonablative procedure" means a procedure that is expected or 291 intended to alter living tissue, but is not expected or intended to excise, vaporize, disintegrate, 292 or remove living tissue. 293 (ii) Notwithstanding Subsection [(15)(a)(i)] (17)(a)(i), nonablative procedure includes 294 hair removal. 295 (b) "Nonablative procedure" does not include: 296 (i) a superficial procedure as defined in Section 58-1-102; 297 (ii) the application of permanent make-up; or 298 (iii) the use of photo therapy lasers for neuromusculoskeletal treatments that are 299 [preformed] performed by an individual licensed under this title who is acting within the 300 individual's scope of practice. 301 [(16)] (18) "Physician" means both physicians and surgeons licensed under Section 302 58-67-301, Utah Medical Practice Act, and osteopathic physicians and surgeons licensed under 303 Section 58-68-301, Utah Osteopathic Medical Practice Act. 304 [(17)] (19) (a) "Practice of osteopathic medicine" means: 305 (i) to diagnose, treat, correct, administer anesthesia, or prescribe for any human 306 disease, ailment, injury, infirmity, deformity, pain, or other condition, physical or mental, real 12-16-22 2:09 PM S.B. 16 - 11 - 307 or imaginary, or to attempt to do so, by any means or instrumentality, which in whole or in part 308 is based upon emphasis of the importance of the musculoskeletal system and manipulative 309 therapy in the maintenance and restoration of health, by an individual in Utah or outside of the 310 state upon or for any human within the state; 311 (ii) when a person not licensed as a physician directs a licensee under this chapter to 312 withhold or alter the health care services that the licensee has ordered; 313 (iii) to maintain an office or place of business for the purpose of doing any of the acts 314 described in Subsection [(17)(a)] (19)(a)(i) or (ii) whether or not for compensation; or 315 (iv) to use, in the conduct of any occupation or profession pertaining to the diagnosis or 316 treatment of human diseases or conditions, in any printed material, stationery, letterhead, 317 envelopes, signs, or advertisements, the designation "doctor," "doctor of osteopathic medicine," 318 "osteopathic physician," "osteopathic surgeon," "osteopathic physician and surgeon," "Dr.," 319 "D.O.," or any combination of these designations in any manner which might cause a 320 reasonable person to believe the individual using the designation is a licensed osteopathic 321 physician, and if the party using the designation is not a licensed osteopathic physician, the 322 designation must additionally contain the description of the branch of the healing arts for which 323 the person has a license, provided that an individual who has received an earned degree of 324 doctor of osteopathic medicine but is not a licensed osteopathic physician and surgeon in Utah 325 may use the designation "D.O." if it is followed by "Not Licensed" or "Not Licensed in Utah" 326 in the same size and style of lettering. 327 (b) The practice of osteopathic medicine does not include: 328 (i) except for an ablative medical procedure as provided in Subsection [(17)(b)(ii)] 329 (19)(b)(ii), the conduct described in Subsection [(17)(a)(i)] (19)(a)(i) that is performed in 330 accordance with a license issued under another chapter of this title; 331 (ii) an ablative cosmetic medical procedure if the scope of practice for the person 332 performing the ablative cosmetic medical procedure includes the authority to operate or 333 perform a surgical procedure; or 334 (iii) conduct under Subsection 58-68-501(2). 335 [(18)] (20) "Prescription device" means an instrument, apparatus, implement, machine, 336 contrivance, implant, in vitro reagent, or other similar or related article, and any component 337 part or accessory, which is required under federal or state law to be prescribed by a practitioner S.B. 16 12-16-22 2:09 PM - 12 - 338 and dispensed by or through a person or entity licensed under this chapter or exempt from 339 licensure under this chapter. 340 [(19)] (21) "Prescription drug" means a drug that is required by federal or state law or 341 rule to be dispensed only by prescription or is restricted to administration only by practitioners. 342 (22) (a) "Primary sex characteristic surgical procedure" means any of the following if 343 done for the purpose of effectuating or facilitating an individual's attempted sex change: 344 (i) for an individual whose biological sex at birth is male, castration, orchiectomy, 345 penectomy, vaginoplasty, or vulvoplasty; 346 (ii) for an individual whose biological sex at birth is female, hysterectomy, 347 oophorectomy, metoidioplasty, or phalloplasty; or 348 (iii) any surgical procedure that is related to or necessary for a procedure described in 349 Subsection (22)(a)(i) or (ii), that would result in the sterilization of an individual who is not 350 sterile. 351 (b) "Primary sex characteristic surgical procedure" does not include: 352 (i) surgery or other procedures or treatments performed on an individual who: 353 (A) is born with external biological sex characteristics that are irresolvably ambiguous; 354 (B) is born with 46, XX chromosomes with virilization; 355 (C) is born with 46, XY chromosomes with undervirilization; 356 (D) has both ovarian and testicular tissue; or 357 (E) has been diagnosed by a physician, based on genetic or biochemical testing, with a 358 sex development disorder characterized by abnormal sex chromosome structure, sex steroid 359 hormone production, or sex steroid hormone action for a male or female; or 360 (ii) removing a body part: 361 (A) because the body part is cancerous or diseased; or 362 (B) for a reason that is medically necessary, other than to effectuate or facilitate an 363 individual's attempted sex change. 364 (23) (a) "Secondary sex characteristic surgical procedure" means any of the following 365 if done for the purpose of effectuating or facilitating an individual's attempted sex change: 366 (i) for an individual whose biological sex at birth is male, breast augmentation surgery, 367 chest feminization surgery, or facial feminization surgery; or 368 (ii) for an individual whose biological sex at birth is female, mastectomy, breast 12-16-22 2:09 PM S.B. 16 - 13 - 369 reduction surgery, chest masculinization surgery, or facial masculinization surgery. 370 (b) "Secondary sex characteristic surgical procedure" does not include: 371 (i) surgery or other procedures or treatments performed on an individual who: 372 (A) is born with external biological sex characteristics that are irresolvably ambiguous; 373 (B) is born with 46, XX chromosomes with virilization; 374 (C) is born with 46, XY chromosomes with undervirilization; 375 (D) has both ovarian and testicular tissue; or 376 (E) has been diagnosed by a physician, based on genetic or biochemical testing, with a 377 sex development disorder characterized by abnormal sex chromosome structure, sex steroid 378 hormone production, or sex steroid hormone action for a male or female; or 379 (ii) removing a body part: 380 (A) because the body part is cancerous or diseased; or 381 (B) for a reason that is medically necessary, other than to effectuate or facilitate an 382 individual's attempted sex change. 383 [(20)] (24) "SPEX" means the Special Purpose Examination of the Federation of State 384 Medical Boards. 385 [(21)] (25) "Unlawful conduct" means the same as that term is defined in Sections 386 58-1-501 and 58-68-501. 387 [(22)] (26) "Unprofessional conduct" means the same as that term is defined in 388 Sections 58-1-501 and 58-68-502 and as may be further defined by division rule. 389 Section 4. Section 58-68-502 is amended to read: 390 58-68-502. Unprofessional conduct. 391 (1) "Unprofessional conduct" includes, in addition to the definition in Section 392 58-1-501: 393 (a) using or employing the services of any individual to assist a licensee in any manner 394 not in accordance with the generally recognized practices, standards, or ethics of the 395 profession, state law, or division rule; 396 (b) violating the dispensing requirements of Chapter 17b, Part 8, Dispensing Medical 397 Practitioner and Dispensing Medical Practitioner Clinic Pharmacy, if applicable; 398 (c) making a material misrepresentation regarding the qualifications for licensure under 399 Section 58-68-302.5; S.B. 16 12-16-22 2:09 PM - 14 - 400 (d) violating the requirements of Title 26, Chapter 61a, Utah Medical Cannabis Act; 401 [or] 402 (e) falsely making an entry in, or altering, a medical record with the intent to conceal: 403 (i) a wrongful or negligent act or omission of an individual licensed under this chapter 404 or an individual under the direction or control of an individual licensed under this chapter; or 405 (ii) conduct described in Subsections (1)(a) through (d) or Subsection 58-1-501(1)[.]; 406 or 407 (f) performing, or causing to be performed, upon an individual who is less than 18 408 years old: 409 (i) a primary sex characteristic surgical procedure; or 410 (ii) a secondary sex characteristic surgical procedure. 411 (2) "Unprofessional conduct" does not include: 412 (a) in compliance with Section 58-85-103: 413 (i) obtaining an investigational drug or investigational device; 414 (ii) administering the investigational drug to an eligible patient; or 415 (iii) treating an eligible patient with the investigational drug or investigational device; 416 or 417 (b) in accordance with Title 26, Chapter 61a, Utah Medical Cannabis Act: 418 (i) when registered as a qualified medical provider or acting as a limited medical 419 provider, as those terms are defined in Section 26-61a-102, recommending the use of medical 420 cannabis; 421 (ii) when registered as a pharmacy medical provider, as that term is defined in Section 422 26-61a-102, providing pharmacy medical provider services in a medical cannabis pharmacy; or 423 (iii) when registered as a state central patient portal medical provider, as that term is 424 defined in Section 26-61a-102, providing state central patient portal medical provider services. 425 (3) Notwithstanding Subsection (2)(b), the division, in consultation with the board and 426 in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, shall define 427 unprofessional conduct for a physician described in Subsection (2)(b).

Enrolled Copy S.B. 16 1 TRANSGENDER MEDICAL TREATMENTS AND PROCEDURES 2 AMENDMENTS 3 2023 GENERAL SESSION 4 STATE OF UTAH 5 Chief Sponsor: Michael S. Kennedy 6 House Sponsor: Katy Hall 7 8 LONG TITLE 9 General Description: 10 This bill enacts provisions regarding transgender medical treatments and procedures. 11 Highlighted Provisions: 12 This bill: 13 < defines terms; 14 < requires the Department of Health and Human Services to conduct a systematic 15 review of the medical evidence regarding hormonal transgender treatments and 16 provide recommendations to the Legislature; 17 < requires the Division of Professional Licensing to create a certification for 18 providing hormonal transgender treatments; 19 < requires a health care provider to meet certain requirements before providing a 20 hormonal transgender treatment; 21 < prohibits a health care provider from providing a hormonal transgender treatment to 22 new patients who were not diagnosed with gender dysphoria before a certain date; 23 < prohibits performing sex characteristic surgical procedures on a minor for the 24 purpose of effectuating a sex change; 25 < specifies that an individual may bring a medical malpractice action related to certain 26 medical treatments and procedures; 27 < specifies that an individual may disaffirm consent under certain circumstances; 28 < allows an individual to bring a medical malpractice action for treatment provided to S.B. 16 Enrolled Copy - 2 - 29 the individual as a minor if the individual later disaffirms consent; 30 < extends the medical malpractice statute of limitations related to providing certain 31 medical treatments and procedures; and 32 < makes technical changes. 33 Money Appropriated in this Bill: 34 None 35 Other Special Clauses: 36 This bill provides a special effective date. 37 This bill provides revisor instructions. 38 Utah Code Sections Affected: 39 AMENDS: 40 58-67-102, as last amended by Laws of Utah 2022, Chapter 233 41 58-67-502, as last amended by Laws of Utah 2021, Chapter 337 42 58-68-102, as last amended by Laws of Utah 2022, Chapter 233 43 58-68-502, as last amended by Laws of Utah 2021, Chapter 337 44 ENACTS: 45 26B-1-214, Utah Code Annotated 1953 46 58-1-603, Utah Code Annotated 1953 47 58-1-603.1, Utah Code Annotated 1953 48 78B-3-427, Utah Code Annotated 1953 49 Utah Code Sections Affected by Revisor Instructions: 50 58-1-603.1, Utah Code Annotated 1953 51 78B-3-427, Utah Code Annotated 1953 52 53 Be it enacted by the Legislature of the state of Utah: 54 Section 1. Section 26B-1-214 is enacted to read: 55 26B-1-214. Systematic medical evidence review of hormonal transgender Enrolled Copy S.B. 16 - 3 - 56 treatments. 57 (1) As used in this section, "hormonal transgender treatment" means the same as that 58 term is defined in Section 58-1-603. 59 (2) The department, in consultation with the Division of Professional Licensing created 60 in Section 58-1-103, the Physicians Licensing Board created in Section 58-67-201, the 61 Osteopathic Physician and Surgeon's Licensing Board created in Section 58-68-201, the 62 University of Utah, and a non-profit hospital system with multiple hospitals in Utah and 63 experience in specialty pediatric care, shall conduct a systematic medical evidence review 64 regarding the provision of hormonal transgender treatments to minors. 65 (3) The purpose of the systematic medical evidence review is to provide the Legislature 66 with recommendations to consider when deciding whether to lift the moratorium described in 67 Section 58-1-603.1. 68 (4) The systematic medical evidence review shall: 69 (a) analyze hormonal transgender treatments that are prescribed to a minor with gender 70 dysphoria, including: 71 (i) analyzing any effects and side effects of the treatment; and 72 (ii) whether each treatment has been approved by the federal Food and Drug 73 Administration to treat gender dysphoria; 74 (b) review the scientific literature regarding hormonal transgender treatments in 75 minors, including short-term and long-term impacts, literature from other countries, and rates 76 of desistence and time to desistence where applicable; 77 (c) review the quality of evidence cited in any scientific literature including to analyze 78 and report on the quality of the data based on techniques such as peer review, selection bias, 79 self-selection bias, randomization, sample size, and other applicable best research practices; 80 (d) include high quality clinical research assessing the short-term and long-term 81 benefits and harms of hormonal transgender treatments prescribed to minors with gender 82 dysphoria and the short-term and long-term benefits and harms of interrupting the natural S.B. 16 Enrolled Copy - 4 - 83 puberty and development processes of the child; 84 (e) specify the conditions under which the department recommends that a treatment not 85 be permitted; 86 (f) recommend what information a minor and the minor's parent should understand 87 before consenting to a hormonal transgender treatment; 88 (g) recommend the best practices a health care provider should follow to provide the 89 information described in Subsection (4)(f); 90 (h) describe the assumptions and value determinations used to reach a 91 recommendation; and 92 (i) include any other information the department, in consultation with the entities 93 described in Subsection (2), determines would assist the Legislature in enacting legislation 94 related to the provision of hormonal transgender treatment to minors. 95 (5) Upon the completion of the systematic medical evidence review, the department 96 shall provide the systematic medical evidence review to the Health and Human Services 97 Interim Committee. 98 Section 2. Section 58-1-603 is enacted to read: 99 58-1-603. Hormonal transgender treatment on minors -- Requirements. 100 (1) As used in this section: 101 (a) "Approved organization" means an organization with expertise regarding 102 transgender health care for minors that is approved by the division. 103 (b) "Biological sex at birth" means an individual's sex, as being male or female, 104 according to distinct reproductive roles as manifested by sex and reproductive organ anatomy, 105 chromosomal makeup, and endogenous hormone profiles. 106 (c) "Disorder of sexual development" means a sexual development disorder where an 107 individual: 108 (i) is born with external biological sex characteristics that are irresolvably ambiguous; 109 (ii) is born with 46, XX chromosomes with virilization; Enrolled Copy S.B. 16 - 5 - 110 (iii) is born with 46, XY chromosomes with undervirilization; 111 (iv) has both ovarian and testicular tissue; or 112 (v) has been diagnosed by a physician, based on genetic or biochemical testing, with 113 abnormal: 114 (A) sex chromosome structure; 115 (B) sex steroid hormone production; or 116 (C) sex steroid hormone action for a male or female. 117 (d) "Health care provider" means: 118 (i) a physician; 119 (ii) a physician assistant licensed under Chapter 70a, Utah Physician Assistant Act; or 120 (iii) an advanced practice registered nurse licensed under Subsection 58-31b-301(2)(e). 121 (e) (i) "Hormonal transgender treatment" means administering, prescribing, or 122 supplying for effectuating or facilitating an individual's attempted sex change: 123 (A) to an individual whose biological sex at birth is female, a dose of testosterone or 124 other androgens at levels above those normally found in an individual whose biological sex at 125 birth is female; 126 (B) to an individual whose biological sex at birth is male, a dose of estrogen or a 127 synthetic compound with estrogenic activity or effect at levels above those normally found in 128 an individual whose biological sex at birth is male; or 129 (C) a puberty inhibition drug. 130 (ii) "Hormonal transgender treatment" does not include administering, prescribing, or 131 supplying a substance described in Subsection (1)(e)(i) to an individual if the treatment is 132 medically necessary as a treatment for: 133 (A) precocious puberty; 134 (B) endometriosis; 135 (C) a menstrual, ovarian, or uterine disorder; 136 (D) a sex-hormone stimulated cancer; or S.B. 16 Enrolled Copy - 6 - 137 (E) a disorder of sexual development. 138 (f) "Mental health professional" means any of the following: 139 (i) a physician who is board certified for a psychiatry specialization recognized by the 140 American Board of Medical Specialists or the American Osteopathic Association's Bureau of 141 Osteopathic Specialists; 142 (ii) a psychologist licensed under Chapter 61, Psychologist Licensing Act; 143 (iii) a clinical social worker licensed under Chapter 60, Part 2, Social Worker 144 Licensing Act; 145 (iv) a marriage and family therapist licensed under Chapter 60, Part 3, Marriage and 146 Family Therapist Licensing Act; or 147 (v) a clinical mental health counselor licensed under Chapter 60, Part 4, Clinical 148 Mental Health Counselor Licensing Act. 149 (g) "Minor" means an individual who is less than 18 years old. 150 (h) "Physician" means an individual licensed under: 151 (i) Chapter 67, Utah Medical Practice Act; or 152 (ii) Chapter 68, Utah Osteopathic Medical Practice Act. 153 (i) "Puberty inhibition drug" means any of the following alone or in combination with 154 aromatase inhibitors: 155 (i) gonadotropin-releasing hormone agonists; or 156 (ii) androgen receptor inhibitors. 157 (j) "Transgender treatment certification" means a certification described in Subsection 158 (2). 159 (2) (a) The division shall create a transgender treatment certification on or before July 160 1, 2023. 161 (b) The division may issue the transgender treatment certification to an individual if the 162 individual: 163 (i) is a health care provider or a mental health professional; and Enrolled Copy S.B. 16 - 7 - 164 (ii) has completed at least 40 hours of education related to transgender health care for 165 minors from an approved organization. 166 (c) The division may renew a transgender treatment certification: 167 (i) at the time an individual renews the individual's license; and 168 (ii) if the individual has completed at least 20 hours of continuing education related to 169 transgender health care for minors from an approved organization during the individual's 170 continuing education cycle. 171 (d) Beginning January 1, 2024, providing a hormonal transgender treatment to a minor 172 without a transgender treatment certification is unprofessional conduct. 173 (3) (a) A health care provider may provide a hormonal transgender treatment to a 174 minor only if the health care provider has been treating the minor for gender dysphoria for at 175 least six months. 176 (b) Beginning July 1, 2023, before providing a hormonal transgender treatment to a 177 minor described in Subsection (3)(a), a health care provider shall: 178 (i) determine if the minor has other physical or mental health conditions, identify and 179 document any condition, and consider whether treating those conditions before treating the 180 gender dysphoria would provide the minor the best long-term outcome; 181 (ii) consider whether an alternative medical treatment or behavioral intervention to 182 treat the minor's gender dysphoria would provide the minor the best long-term outcome; 183 (iii) document in the medical record that: 184 (A) the health care provider has complied with Subsections (3)(b)(i) and (ii); and 185 (B) providing the hormonal transgender treatment will likely result in the best 186 long-term outcome for the minor; 187 (iv) obtain written consent from: 188 (A) the minor; and 189 (B) the minor's parent or guardian unless the minor is emancipated; 190 (v) discuss with the minor: S.B. 16 Enrolled Copy - 8 - 191 (A) the risks of the hormonal transgender treatment; 192 (B) the minor's short-term and long-term expectations regarding the effect that the 193 hormonal transgender treatment will have on the minor; and 194 (C) the likelihood that the hormonal transgender treatment will meet the short-term and 195 long-term expectations described in Subsection (3)(b)(v)(B); 196 (vi) unless the minor is emancipated, discuss with the minor's parent or guardian: 197 (A) the risks of the hormonal transgender treatment; 198 (B) the minor's short-term and long-term expectations regarding the effect that the 199 hormonal transgender treatment will have on the minor; 200 (C) the parent or guardian's short-term and long-term expectations regarding the effect 201 that the hormonal transgender treatment will have on the minor; and 202 (D) the likelihood that the hormonal transgender treatment will meet the short-term and 203 long-term expectations described in Subsections (3)(b)(vi)(B) and (C); 204 (vii) document in the medical record that the health care provider has provided the 205 information described in Subsections (3)(b)(viii) and (ix); 206 (viii) provide the minor the following information if providing the minor a puberty 207 inhibition drug: 208 (A) puberty inhibition drugs are not approved by the FDA for the treatment of gender 209 dysphoria; 210 (B) possible adverse outcomes of puberty blockers are known to include diminished 211 bone density, pseudotumor cerebri and long term adult sexual dysfunction; 212 (C) research on the long-term risks to children of prolonged treatment with puberty 213 blockers for the treatment of gender dysphoria has not yet occurred; and 214 (D) the full effects of puberty blockers on brain development and cognition are 215 unknown; 216 (ix) provide the minor the following information if providing a cross-sex hormone as 217 described in Subsection (1)(e)(i)(A) or (B): Enrolled Copy S.B. 16 - 9 - 218 (A) the use of cross-sex hormones in males is associated with risks that include blood 219 clots, gallstones, coronary artery disease, heart attacks, tumors of the pituitary gland, strokes, 220 elevated levels of triglycerides in the blood, breast cancer, and irreversible infertility; and 221 (B) the use of cross-sex hormones in females is associated with risks of erythrocytosis, 222 severe liver dysfunction, coronary artery disease, hypertension, and increased risk of breast and 223 uterine cancers; and 224 (x) upon the completion of any relevant information privacy release, obtain a mental 225 health evaluation of the minor as described in Subsection (4). 226 (4) The mental health evaluation shall: 227 (a) be performed by a mental health professional who: 228 (i) beginning January 1, 2024, has a current transgender treatment certification; and 229 (ii) is not the health care provider that is recommending or providing the hormonal 230 transgender treatment; 231 (b) contain a determination regarding whether the minor suffers from gender dysphoria 232 in accordance with the fifth edition of the Diagnostic and Statistical Manual of Mental 233 Disorders; 234 (c) confirm that the minor and the mental health professional have had at least three 235 therapy sessions; and 236 (d) document all of the minor's mental health diagnoses and any significant life events 237 that may be contributing to the diagnoses. 238 (5) A violation of Subsection (3) is unprofessional conduct. 239 Section 3. Section 58-1-603.1 is enacted to read: 240 58-1-603.1. Hormonal transgender treatment moratorium. 241 (1) As used in this section: 242 (a) "Health care provider" means the same as that term is defined in Section 58-1-603. 243 (b) "Hormonal transgender treatment" means the same as that term is defined in 244 Section 58-1-603. S.B. 16 Enrolled Copy - 10 - 245 (2) A health care provider may not provide a hormonal transgender treatment to a 246 patient who: 247 (a) is a minor as defined in Section 58-1-603; and 248 (b) is not diagnosed with gender dysphoria before the effective date of this bill. 249 (3) A violation of Subsection (2) is unprofessional conduct. 250 Section 4. Section 58-67-102 is amended to read: 251 58-67-102. Definitions. 252 In addition to the definitions in Section 58-1-102, as used in this chapter: 253 (1) (a) "Ablative procedure" means a procedure that is expected to excise, vaporize, 254 disintegrate, or remove living tissue, including the use of carbon dioxide lasers and erbium: 255 YAG lasers. 256 (b) "Ablative procedure" does not include hair removal. 257 (2) "ACGME" means the Accreditation Council for Graduate Medical Education of the 258 American Medical Association. 259 (3) "Administrative penalty" means a monetary fine or citation imposed by the division 260 for acts or omissions determined to constitute unprofessional or unlawful conduct, in 261 accordance with a fine schedule established by the division in collaboration with the board, as a 262 result of an adjudicative proceeding conducted in accordance with Title 63G, Chapter 4, 263 Administrative Procedures Act. 264 (4) "Associate physician" means an individual licensed under Section 58-67-302.8. 265 (5) "Attempted sex change" means an attempt or effort to change an individual's body 266 to present that individual as being of a sex or gender that is different from the individual's 267 biological sex at birth. 268 (6) "Biological sex at birth" means an individual's sex, as being male or female, 269 according to distinct reproductive roles as manifested by: 270 (a) sex and reproductive organ anatomy; 271 (b) chromosomal makeup; and Enrolled Copy S.B. 16 - 11 - 272 (c) endogenous hormone profiles. 273 [(5)] (7) "Board" means the Physicians Licensing Board created in Section 58-67-201. 274 [(6)] (8) "Collaborating physician" means an individual licensed under Section 275 58-67-302 who enters into a collaborative practice arrangement with an associate physician. 276 [(7)] (9) "Collaborative practice arrangement" means the arrangement described in 277 Section 58-67-807. 278 [(8)] (10) (a) "Cosmetic medical device" means tissue altering energy based devices 279 that have the potential for altering living tissue and that are used to perform ablative or 280 nonablative procedures, such as American National Standards Institute (ANSI) designated 281 Class IIIb and Class IV lasers, intense pulsed light, radio frequency devices, and lipolytic 282 devices, and excludes ANSI designated Class IIIa and lower powered devices. 283 (b) Notwithstanding Subsection [(8)(a)] (10)(a), if an ANSI designated Class IIIa and 284 lower powered device is being used to perform an ablative procedure, the device is included in 285 the definition of cosmetic medical device under Subsection [(8)(a)] (10)(a). 286 [(9)] (11) "Cosmetic medical procedure": 287 (a) includes the use of cosmetic medical devices to perform ablative or nonablative 288 procedures; and 289 (b) does not include a treatment of the ocular globe such as refractive surgery. 290 [(10)] (12) "Diagnose" means: 291 (a) to examine in any manner another person, parts of a person's body, substances, 292 fluids, or materials excreted, taken, or removed from a person's body, or produced by a person's 293 body, to determine the source, nature, kind, or extent of a disease or other physical or mental 294 condition; 295 (b) to attempt to conduct an examination or determination described under Subsection 296 [(10)(a);] (12)(a); 297 (c) to hold oneself out as making or to represent that one is making an examination or 298 determination as described in Subsection [(10)(a);] (12)(a); or S.B. 16 Enrolled Copy - 12 - 299 (d) to make an examination or determination as described in Subsection [(10)(a)] 300 (12)(a) upon or from information supplied directly or indirectly by another person, whether or 301 not in the presence of the person making or attempting the diagnosis or examination. 302 [(11)] (13) "LCME" means the Liaison Committee on Medical Education of the 303 American Medical Association. 304 [(12)] (14) "Medical assistant" means an unlicensed individual who may perform tasks 305 as described in Subsection 58-67-305(6). 306 [(13)] (15) "Medically underserved area" means a geographic area in which there is a 307 shortage of primary care health services for residents, as determined by the Department of 308 Health and Human Services. 309 [(14)] (16) "Medically underserved population" means a specified group of people 310 living in a defined geographic area with a shortage of primary care health services, as 311 determined by the Department of Health and Human Services. 312 [(15)] (17) (a) (i) "Nonablative procedure" means a procedure that is expected or 313 intended to alter living tissue, but is not intended or expected to excise, vaporize, disintegrate, 314 or remove living tissue. 315 (ii) Notwithstanding Subsection [(15)(a)(i),] (17)(a)(i) nonablative procedure includes 316 hair removal. 317 (b) "Nonablative procedure" does not include: 318 (i) a superficial procedure as defined in Section 58-1-102; 319 (ii) the application of permanent make-up; or 320 (iii) the use of photo therapy and lasers for neuromusculoskeletal treatments that are 321 performed by an individual licensed under this title who is acting within the individual's scope 322 of practice. 323 [(16)] (18) "Physician" means both physicians and surgeons licensed under Section 324 58-67-301, Utah Medical Practice Act, and osteopathic physicians and surgeons licensed under 325 Section 58-68-301, Utah Osteopathic Medical Practice Act. Enrolled Copy S.B. 16 - 13 - 326 [(17)] (19) (a) "Practice of medicine" means: 327 (i) to diagnose, treat, correct, administer anesthesia, or prescribe for any human 328 disease, ailment, injury, infirmity, deformity, pain or other condition, physical or mental, real 329 or imaginary, including to perform cosmetic medical procedures, or to attempt to do so, by any 330 means or instrumentality, and by an individual in Utah or outside the state upon or for any 331 human within the state; 332 (ii) when a person not licensed as a physician directs a licensee under this chapter to 333 withhold or alter the health care services that the licensee has ordered; 334 (iii) to maintain an office or place of business for the purpose of doing any of the acts 335 described in Subsection [(17)(a)] (19)(a)(i) or (ii) whether or not for compensation; or 336 (iv) to use, in the conduct of any occupation or profession pertaining to the diagnosis or 337 treatment of human diseases or conditions in any printed material, stationery, letterhead, 338 envelopes, signs, or advertisements, the designation "doctor," "doctor of medicine," 339 "physician," "surgeon," "physician and surgeon," "Dr.," "M.D.," or any combination of these 340 designations in any manner which might cause a reasonable person to believe the individual 341 using the designation is a licensed physician and surgeon, and if the party using the designation 342 is not a licensed physician and surgeon, the designation must additionally contain the 343 description of the branch of the healing arts for which the person has a license, provided that an 344 individual who has received an earned degree of doctor of medicine degree but is not a licensed 345 physician and surgeon in Utah may use the designation "M.D." if it is followed by "Not 346 Licensed" or "Not Licensed in Utah" in the same size and style of lettering. 347 (b) The practice of medicine does not include: 348 (i) except for an ablative medical procedure as provided in Subsection [(17)(b)(ii),] 349 (19)(b)(ii) the conduct described in Subsection [(17)(a)(i)] (19)(a)(i) that is performed in 350 accordance with a license issued under another chapter of this title; 351 (ii) an ablative cosmetic medical procedure if the scope of practice for the person 352 performing the ablative cosmetic medical procedure includes the authority to operate or S.B. 16 Enrolled Copy - 14 - 353 perform a surgical procedure; or 354 (iii) conduct under Subsection 58-67-501(2). 355 [(18)] (20) "Prescription device" means an instrument, apparatus, implement, machine, 356 contrivance, implant, in vitro reagent, or other similar or related article, and any component 357 part or accessory, which is required under federal or state law to be prescribed by a practitioner 358 and dispensed by or through a person or entity licensed under this chapter or exempt from 359 licensure under this chapter. 360 [(19)] (21) "Prescription drug" means a drug that is required by federal or state law or 361 rule to be dispensed only by prescription or is restricted to administration only by practitioners. 362 (22) (a) "Primary sex characteristic surgical procedure" means any of the following if 363 done for the purpose of effectuating or facilitating an individual's attempted sex change: 364 (i) for an individual whose biological sex at birth is male, castration, orchiectomy, 365 penectomy, vaginoplasty, or vulvoplasty; 366 (ii) for an individual whose biological sex at birth is female, hysterectomy, 367 oophorectomy, metoidioplasty, or phalloplasty; or 368 (iii) any surgical procedure that is related to or necessary for a procedure described in 369 Subsection (22)(a)(i) or (ii), that would result in the sterilization of an individual who is not 370 sterile. 371 (b) "Primary sex characteristic surgical procedure" does not include: 372 (i) surgery or other procedures or treatments performed on an individual who: 373 (A) is born with external biological sex characteristics that are irresolvably ambiguous; 374 (B) is born with 46, XX chromosomes with virilization; 375 (C) is born with 46, XY chromosomes with undervirilization; 376 (D) has both ovarian and testicular tissue; or 377 (E) has been diagnosed by a physician, based on genetic or biochemical testing, with a 378 sex development disorder characterized by abnormal sex chromosome structure, sex steroid 379 hormone production, or sex steroid hormone action for a male or female; or Enrolled Copy S.B. 16 - 15 - 380 (ii) removing a body part: 381 (A) because the body part is cancerous or diseased; or 382 (B) for a reason that is medically necessary, other than to effectuate or facilitate an 383 individual's attempted sex change. 384 (23) (a) "Secondary sex characteristic surgical procedure" means any of the following 385 if done for the purpose of effectuating or facilitating an individual's attempted sex change: 386 (i) for an individual whose biological sex at birth is male, breast augmentation surgery, 387 chest feminization surgery, or facial feminization surgery; or 388 (ii) for an individual whose biological sex at birth is female, mastectomy, breast 389 reduction surgery, chest masculinization surgery, or facial masculinization surgery. 390 (b) "Secondary sex characteristic surgical procedure" does not include: 391 (i) surgery or other procedures or treatments performed on an individual who: 392 (A) is born with external biological sex characteristics that are irresolvably ambiguous; 393 (B) is born with 46, XX chromosomes with virilization; 394 (C) is born with 46, XY chromosomes with undervirilization; 395 (D) has both ovarian and testicular tissue; or 396 (E) has been diagnosed by a physician, based on genetic or biochemical testing, with a 397 sex development disorder characterized by abnormal sex chromosome structure, sex steroid 398 hormone production, or sex steroid hormone action for a male or female; or 399 (ii) removing a body part: 400 (A) because the body part is cancerous or diseased; or 401 (B) for a reason that is medically necessary, other than to effectuate or facilitate an 402 individual's attempted sex change. 403 [(20)] (24) "SPEX" means the Special Purpose Examination of the Federation of State 404 Medical Boards. 405 [(21)] (25) "Unlawful conduct" means the same as that term is defined in Sections 406 58-1-501 and 58-67-501. S.B. 16 Enrolled Copy - 16 - 407 [(22)] (26) "Unprofessional conduct" means the same as that term is defined in 408 Sections 58-1-501 and 58-67-502, and as may be further defined by division rule. 409 Section 5. Section 58-67-502 is amended to read: 410 58-67-502. Unprofessional conduct. 411 (1) "Unprofessional conduct" includes, in addition to the definition in Section 412 58-1-501: 413 (a) using or employing the services of any individual to assist a licensee in any manner 414 not in accordance with the generally recognized practices, standards, or ethics of the 415 profession, state law, or division rule; 416 (b) making a material misrepresentation regarding the qualifications for licensure under 417 Section 58-67-302.7 or [Section] 58-67-302.8; 418 (c) violating the dispensing requirements of Chapter 17b, Part 8, Dispensing Medical 419 Practitioner and Dispensing Medical Practitioner Clinic Pharmacy, if applicable; 420 (d) violating the requirements of Title 26, Chapter 61a, Utah Medical Cannabis Act; 421 [or] 422 (e) falsely making an entry in, or altering, a medical record with the intent to conceal: 423 (i) a wrongful or negligent act or omission of an individual licensed under this chapter 424 or an individual under the direction or control of an individual licensed under this chapter; or 425 (ii) conduct described in Subsections (1)(a) through (d) or Subsection 58-1-501(1)[.]; 426 or 427 (f) performing, or causing to be performed, upon an individual who is less than 18 428 years old: 429 (i) a primary sex characteristic surgical procedure; or 430 (ii) a secondary sex characteristic surgical procedure. 431 (2) "Unprofessional conduct" does not include: 432 (a) in compliance with Section 58-85-103: 433 (i) obtaining an investigational drug or investigational device; Enrolled Copy S.B. 16 - 17 - 434 (ii) administering the investigational drug to an eligible patient; or 435 (iii) treating an eligible patient with the investigational drug or investigational device; 436 or 437 (b) in accordance with Title 26, Chapter 61a, Utah Medical Cannabis Act: 438 (i) when registered as a qualified medical provider or acting as a limited medical 439 provider, as those terms are defined in Section 26-61a-102, recommending the use of medical 440 cannabis; 441 (ii) when registered as a pharmacy medical provider, as that term is defined in Section 442 26-61a-102, providing pharmacy medical provider services in a medical cannabis pharmacy; or 443 (iii) when registered as a state central patient portal medical provider, as that term is 444 defined in Section 26-61a-102, providing state central patient portal medical provider services. 445 (3) Notwithstanding Subsection (2)(b), the division, in consultation with the board and 446 in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, shall define 447 unprofessional conduct for a physician described in Subsection (2)(b). 448 Section 6. Section 58-68-102 is amended to read: 449 58-68-102. Definitions. 450 In addition to the definitions in Section 58-1-102, as used in this chapter: 451 (1) (a) "Ablative procedure" means a procedure that is expected to excise, vaporize, 452 disintegrate, or remove living tissue, including the use of carbon dioxide lasers and erbium: 453 YAG lasers. 454 (b) "Ablative procedure" does not include hair removal. 455 (2) "ACGME" means the Accreditation Council for Graduate Medical Education of the 456 American Medical Association. 457 (3) "Administrative penalty" means a monetary fine imposed by the division for acts or 458 omissions determined to constitute unprofessional or unlawful conduct, as a result of an 459 adjudicative proceeding conducted in accordance with Title 63G, Chapter 4, Administrative 460 Procedures Act. S.B. 16 Enrolled Copy - 18 - 461 (4) "AOA" means the American Osteopathic Association. 462 (5) "Associate physician" means an individual licensed under Section 58-68-302.5. 463 (6) "Attempted sex change" means an attempt or effort to change an individual's body 464 to present that individual as being of a sex or gender that is different from the individual's 465 biological sex at birth. 466 (7) "Biological sex at birth" means an individual's sex, as being male or female, 467 according to distinct reproductive roles as manifested by: 468 (a) sex and reproductive organ anatomy; 469 (b) chromosomal makeup; and 470 (c) endogenous hormone profiles. 471 [(6)] (8) "Board" means the Osteopathic Physician and Surgeon's Licensing Board 472 created in Section 58-68-201. 473 [(7)] (9) "Collaborating physician" means an individual licensed under Section 474 58-68-302 who enters into a collaborative practice arrangement with an associate physician. 475 [(8)] (10) "Collaborative practice arrangement" means the arrangement described in 476 Section 58-68-807. 477 [(9)] (11) (a) "Cosmetic medical device" means tissue altering energy based devices 478 that have the potential for altering living tissue and that are used to perform ablative or 479 nonablative procedures, such as American National Standards Institute (ANSI) designated 480 Class IIIb and Class IV lasers, intense pulsed light, radio frequency devices, and lipolytic 481 devices and excludes ANSI designated Class IIIa and lower powered devices. 482 (b) Notwithstanding Subsection [(9)(a)] (11)(a), if an ANSI designated Class IIIa and 483 lower powered device is being used to perform an ablative procedure, the device is included in 484 the definition of cosmetic medical device under Subsection [(9)(a)] (11)(a). 485 [(10)] (12) "Cosmetic medical procedure": 486 (a) includes the use of cosmetic medical devices to perform ablative or nonablative 487 procedures; and Enrolled Copy S.B. 16 - 19 - 488 (b) does not include a treatment of the ocular globe such as refractive surgery. 489 [(11)] (13) "Diagnose" means: 490 (a) to examine in any manner another person, parts of a person's body, substances, 491 fluids, or materials excreted, taken, or removed from a person's body, or produced by a person's 492 body, to determine the source, nature, kind, or extent of a disease or other physical or mental 493 condition; 494 (b) to attempt to conduct an examination or determination described under Subsection 495 [(11)(a)] (13)(a); 496 (c) to hold oneself out as making or to represent that one is making an examination or 497 determination as described in Subsection [(11)(a)] (13)(a); or 498 (d) to make an examination or determination as described in Subsection [(11)(a)] 499 (13)(a) upon or from information supplied directly or indirectly by another person, whether or 500 not in the presence of the person making or attempting the diagnosis or examination. 501 [(12)] (14) "Medical assistant" means an unlicensed individual who may perform tasks 502 as described in Subsection 58-68-305(6). 503 [(13)] (15) "Medically underserved area" means a geographic area in which there is a 504 shortage of primary care health services for residents, as determined by the Department of 505 Health and Human Services. 506 [(14)] (16) "Medically underserved population" means a specified group of people 507 living in a defined geographic area with a shortage of primary care health services, as 508 determined by the Department of Health and Human Services. 509 [(15)] (17) (a) (i) "Nonablative procedure" means a procedure that is expected or 510 intended to alter living tissue, but is not expected or intended to excise, vaporize, disintegrate, 511 or remove living tissue. 512 (ii) Notwithstanding Subsection [(15)(a)(i)] (17)(a)(i), nonablative procedure includes 513 hair removal. 514 (b) "Nonablative procedure" does not include: S.B. 16 Enrolled Copy - 20 - 515 (i) a superficial procedure as defined in Section 58-1-102; 516 (ii) the application of permanent make-up; or 517 (iii) the use of photo therapy lasers for neuromusculoskeletal treatments that are 518 [preformed] performed by an individual licensed under this title who is acting within the 519 individual's scope of practice. 520 [(16)] (18) "Physician" means both physicians and surgeons licensed under Section 521 58-67-301, Utah Medical Practice Act, and osteopathic physicians and surgeons licensed under 522 Section 58-68-301, Utah Osteopathic Medical Practice Act. 523 [(17)] (19) (a) "Practice of osteopathic medicine" means: 524 (i) to diagnose, treat, correct, administer anesthesia, or prescribe for any human 525 disease, ailment, injury, infirmity, deformity, pain, or other condition, physical or mental, real 526 or imaginary, or to attempt to do so, by any means or instrumentality, which in whole or in part 527 is based upon emphasis of the importance of the musculoskeletal system and manipulative 528 therapy in the maintenance and restoration of health, by an individual in Utah or outside of the 529 state upon or for any human within the state; 530 (ii) when a person not licensed as a physician directs a licensee under this chapter to 531 withhold or alter the health care services that the licensee has ordered; 532 (iii) to maintain an office or place of business for the purpose of doing any of the acts 533 described in Subsection [(17)(a)] (19)(a)(i) or (ii) whether or not for compensation; or 534 (iv) to use, in the conduct of any occupation or profession pertaining to the diagnosis or 535 treatment of human diseases or conditions, in any printed material, stationery, letterhead, 536 envelopes, signs, or advertisements, the designation "doctor," "doctor of osteopathic medicine," 537 "osteopathic physician," "osteopathic surgeon," "osteopathic physician and surgeon," "Dr.," 538 "D.O.," or any combination of these designations in any manner which might cause a 539 reasonable person to believe the individual using the designation is a licensed osteopathic 540 physician, and if the party using the designation is not a licensed osteopathic physician, the 541 designation must additionally contain the description of the branch of the healing arts for which Enrolled Copy S.B. 16 - 21 - 542 the person has a license, provided that an individual who has received an earned degree of 543 doctor of osteopathic medicine but is not a licensed osteopathic physician and surgeon in Utah 544 may use the designation "D.O." if it is followed by "Not Licensed" or "Not Licensed in Utah" 545 in the same size and style of lettering. 546 (b) The practice of osteopathic medicine does not include: 547 (i) except for an ablative medical procedure as provided in Subsection [(17)(b)(ii)] 548 (19)(b)(ii), the conduct described in Subsection [(17)(a)(i)] (19)(a)(i) that is performed in 549 accordance with a license issued under another chapter of this title; 550 (ii) an ablative cosmetic medical procedure if the scope of practice for the person 551 performing the ablative cosmetic medical procedure includes the authority to operate or 552 perform a surgical procedure; or 553 (iii) conduct under Subsection 58-68-501(2). 554 [(18)] (20) "Prescription device" means an instrument, apparatus, implement, machine, 555 contrivance, implant, in vitro reagent, or other similar or related article, and any component 556 part or accessory, which is required under federal or state law to be prescribed by a practitioner 557 and dispensed by or through a person or entity licensed under this chapter or exempt from 558 licensure under this chapter. 559 [(19)] (21) "Prescription drug" means a drug that is required by federal or state law or 560 rule to be dispensed only by prescription or is restricted to administration only by practitioners. 561 (22) (a) "Primary sex characteristic surgical procedure" means any of the following if 562 done for the purpose of effectuating or facilitating an individual's attempted sex change: 563 (i) for an individual whose biological sex at birth is male, castration, orchiectomy, 564 penectomy, vaginoplasty, or vulvoplasty; 565 (ii) for an individual whose biological sex at birth is female, hysterectomy, 566 oophorectomy, metoidioplasty, or phalloplasty; or 567 (iii) any surgical procedure that is related to or necessary for a procedure described in 568 Subsection (22)(a)(i) or (ii), that would result in the sterilization of an individual who is not S.B. 16 Enrolled Copy - 22 - 569 sterile. 570 (b) "Primary sex characteristic surgical procedure" does not include: 571 (i) surgery or other procedures or treatments performed on an individual who: 572 (A) is born with external biological sex characteristics that are irresolvably ambiguous; 573 (B) is born with 46, XX chromosomes with virilization; 574 (C) is born with 46, XY chromosomes with undervirilization; 575 (D) has both ovarian and testicular tissue; or 576 (E) has been diagnosed by a physician, based on genetic or biochemical testing, with a 577 sex development disorder characterized by abnormal sex chromosome structure, sex steroid 578 hormone production, or sex steroid hormone action for a male or female; or 579 (ii) removing a body part: 580 (A) because the body part is cancerous or diseased; or 581 (B) for a reason that is medically necessary, other than to effectuate or facilitate an 582 individual's attempted sex change. 583 (23) (a) "Secondary sex characteristic surgical procedure" means any of the following 584 if done for the purpose of effectuating or facilitating an individual's attempted sex change: 585 (i) for an individual whose biological sex at birth is male, breast augmentation surgery, 586 chest feminization surgery, or facial feminization surgery; or 587 (ii) for an individual whose biological sex at birth is female, mastectomy, breast 588 reduction surgery, chest masculinization surgery, or facial masculinization surgery. 589 (b) "Secondary sex characteristic surgical procedure" does not include: 590 (i) surgery or other procedures or treatments performed on an individual who: 591 (A) is born with external biological sex characteristics that are irresolvably ambiguous; 592 (B) is born with 46, XX chromosomes with virilization; 593 (C) is born with 46, XY chromosomes with undervirilization; 594 (D) has both ovarian and testicular tissue; or 595 (E) has been diagnosed by a physician, based on genetic or biochemical testing, with a Enrolled Copy S.B. 16 - 23 - 596 sex development disorder characterized by abnormal sex chromosome structure, sex steroid 597 hormone production, or sex steroid hormone action for a male or female; or 598 (ii) removing a body part: 599 (A) because the body part is cancerous or diseased; or 600 (B) for a reason that is medically necessary, other than to effectuate or facilitate an 601 individual's attempted sex change. 602 [(20)] (24) "SPEX" means the Special Purpose Examination of the Federation of State 603 Medical Boards. 604 [(21)] (25) "Unlawful conduct" means the same as that term is defined in Sections 605 58-1-501 and 58-68-501. 606 [(22)] (26) "Unprofessional conduct" means the same as that term is defined in 607 Sections 58-1-501 and 58-68-502 and as may be further defined by division rule. 608 Section 7. Section 58-68-502 is amended to read: 609 58-68-502. Unprofessional conduct. 610 (1) "Unprofessional conduct" includes, in addition to the definition in Section 611 58-1-501: 612 (a) using or employing the services of any individual to assist a licensee in any manner 613 not in accordance with the generally recognized practices, standards, or ethics of the 614 profession, state law, or division rule; 615 (b) violating the dispensing requirements of Chapter 17b, Part 8, Dispensing Medical 616 Practitioner and Dispensing Medical Practitioner Clinic Pharmacy, if applicable; 617 (c) making a material misrepresentation regarding the qualifications for licensure under 618 Section 58-68-302.5; 619 (d) violating the requirements of Title 26, Chapter 61a, Utah Medical Cannabis Act; 620 [or] 621 (e) falsely making an entry in, or altering, a medical record with the intent to conceal: 622 (i) a wrongful or negligent act or omission of an individual licensed under this chapter S.B. 16 Enrolled Copy - 24 - 623 or an individual under the direction or control of an individual licensed under this chapter; or 624 (ii) conduct described in Subsections (1)(a) through (d) or Subsection 58-1-501(1)[.]; 625 or 626 (f) performing, or causing to be performed, upon an individual who is less than 18 627 years old: 628 (i) a primary sex characteristic surgical procedure; or 629 (ii) a secondary sex characteristic surgical procedure. 630 (2) "Unprofessional conduct" does not include: 631 (a) in compliance with Section 58-85-103: 632 (i) obtaining an investigational drug or investigational device; 633 (ii) administering the investigational drug to an eligible patient; or 634 (iii) treating an eligible patient with the investigational drug or investigational device; 635 or 636 (b) in accordance with Title 26, Chapter 61a, Utah Medical Cannabis Act: 637 (i) when registered as a qualified medical provider or acting as a limited medical 638 provider, as those terms are defined in Section 26-61a-102, recommending the use of medical 639 cannabis; 640 (ii) when registered as a pharmacy medical provider, as that term is defined in Section 641 26-61a-102, providing pharmacy medical provider services in a medical cannabis pharmacy; or 642 (iii) when registered as a state central patient portal medical provider, as that term is 643 defined in Section 26-61a-102, providing state central patient portal medical provider services. 644 (3) Notwithstanding Subsection (2)(b), the division, in consultation with the board and 645 in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, shall define 646 unprofessional conduct for a physician described in Subsection (2)(b). 647 Section 8. Section 78B-3-427 is enacted to read: 648 78B-3-427. Transgender procedures upon a minor -- Right of action -- Informed 649 consent requirements -- Statute of limitations. Enrolled Copy S.B. 16 - 25 - 650 (1) As used in this section: 651 (a) "Hormonal transgender treatment" means the same as that term is defined in 652 Section 58-1-603. 653 (b) "Minor" means the same as that term is defined in Section 58-1-603. 654 (2) (a) Notwithstanding any other provision of law, a malpractice action against a 655 health care provider may be brought against a health care provider for damages arising from: 656 (i) providing a hormonal transgender treatment to a minor without complying with the 657 requirements described in Section 58-1-603; 658 (ii) negligence in providing a hormonal transgender treatment to a minor; or 659 (iii) providing a treatment or procedure described in Subsection (2)(b)(ii) to a minor 660 without the minor's consent including if the minor disaffirms consent under Subsection (3). 661 (3) (a) Notwithstanding any other provision of law, an individual who gave informed 662 consent as a minor or for whom consent was given under Section 78B-3-406, may disaffirm the 663 consent if: 664 (i) the treatment at issue began after the effective date of this bill; 665 (ii) the consent was provided for any of the following: 666 (A) a hormonal transgender treatment; 667 (B) a primary sex characteristic surgical procedure as defined in Section 58-67-102; or 668 (C) a secondary sex characteristic surgical procedure as defined in Section 58-67-102; 669 (iii) under the totality of the circumstances, a health care provider would have reason to 670 believe that the minor, or a similarly situated minor, could later regret having given consent; 671 (iv) the individual suffered a permanent physical injury; and 672 (v) the consent is disaffirmed in writing before the individual reaches the age of 25 673 years old. 674 (b) A disaffirmation of consent under this Subsection (3) relates back to the day the 675 original consent was given. 676 (4) Notwithstanding any other provision of law, a malpractice action against a health S.B. 16 Enrolled Copy - 26 - 677 care provider described in Subsection (2)(a) may be brought before the patient is 25 years old if 678 the treatment at issue in the malpractice action began, occurred, or continued on or after the 679 effective date of this bill. 680 (5) Sections 78B-3-404 and 78B-3-406 do not apply to an action described in this 681 section. 682 Section 9. Effective date. 683 If approved by two-thirds of all the members elected to each house, this bill takes effect 684 upon approval by the governor, or the day following the constitutional time limit of Utah 685 Constitution, Article VII, Section 8, without the governor's signature, or in the case of a veto, 686 the date of veto override. 687 Section 10. Revisor instructions. 688 The Legislature intends that the Office of Legislative Research and General Counsel, in 689 preparing the Utah Code database for publication, replace each instance of the phrase "the 690 effective date of this bill" with the bill's actual effective date in the following Utah Code 691 sections: 692 (1) Section 58-1-603.1; and 693 (2) Section 78B-3-427.