Text of WA SB 5400 (2024)

AN ACT Relating to actions by health professions disciplining 1 authorities against license applicants and license holders for 2 providing reproductive health care services or gender affirming 3 treatment; amending RCW 18.130.180; reenacting and amending RCW 4 18.130.055; and adding a new section to chapter 18.130 RCW. 5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON: 6 Sec. 1. RCW 18.130.055 and 2019 c 446 s 46 and 2019 c 444 s 24 7 are each reenacted and amended to read as follows: 8 (1) The disciplining authority may deny an application for 9 licensure or grant a license with conditions if the applicant: 10 (a) Has had his or her license to practice any health care 11 profession suspended, revoked, or restricted, by competent authority 12 in any state, federal, or foreign jurisdiction, except as provided in 13 section 3 of this act; 14 (b) Has committed any act defined as unprofessional conduct for a 15 license holder under RCW 18.130.180, except as provided in RCW 16 9.97.020 and section 3 of this act; 17 (c) Has been convicted or is subject to current prosecution or 18 pending charges of a crime involving moral turpitude or a crime 19 identified in RCW 43.43.830, except as provided in RCW 9.97.020, 20 18.205.097, and 18.19.095. For purposes of this section, conviction 21 S-0538.1 SENATE BILL 5400 State of Washington 68th Legislature 2023 Regular Session By Senators Salomon, Saldaña, Kuderer, Rolfes, and Randall p. 1 SB 5400 includes all instances in which a plea of guilty or nolo contendere 1 is the basis for the conviction and all proceedings in which the 2 prosecution or sentence has been deferred or suspended. At the 3 request of an applicant for an original license whose conviction is 4 under appeal, the disciplining authority may defer decision upon the 5 application during the pendency of such a prosecution or appeal; 6 (d) Fails to prove that he or she is qualified in accordance with 7 the provisions of this chapter, the chapters identified in RCW 8 18.130.040(2), or the rules adopted by the disciplining authority; or 9 (e) Is not able to practice with reasonable skill and safety to 10 consumers by reason of any mental or physical condition. 11 (i) The disciplining authority may require the applicant, at his 12 or her own expense, to submit to a mental, physical, or psychological 13 examination by one or more licensed health professionals designated 14 by the disciplining authority. The disciplining authority shall 15 provide written notice of its requirement for a mental or physical 16 examination that includes a statement of the specific conduct, event, 17 or circumstances justifying an examination and a statement of the 18 nature, purpose, scope, and content of the intended examination. If 19 the applicant fails to submit to the examination or provide the 20 results of the examination or any required waivers, the disciplining 21 authority may deny the application. 22 (ii) An applicant governed by this chapter is deemed to have 23 given consent to submit to a mental, physical, or psychological 24 examination when directed in writing by the disciplining authority 25 and further to have waived all objections to the admissibility or use 26 of the examining health professional's testimony or examination 27 reports by the disciplining authority on the grounds that the 28 testimony or reports constitute privileged communications. 29 (2) The provisions of RCW 9.95.240 and chapter 9.96A RCW do not 30 apply to a decision to deny a license under this section. 31 (3) The disciplining authority shall give written notice to the 32 applicant of the decision to deny a license or grant a license with 33 conditions in response to an application for a license. The notice 34 must state the grounds and factual basis for the action and be served 35 upon the applicant. 36 (4) A license applicant who is aggrieved by the decision to deny 37 the license or grant the license with conditions has the right to an 38 adjudicative proceeding. The application for adjudicative proceeding 39 must be in writing, state the basis for contesting the adverse 40 p. 2 SB 5400 action, include a copy of the adverse notice, and be served on and 1 received by the department within twenty-eight days of the decision. 2 The license applicant has the burden to establish, by a preponderance 3 of evidence, that the license applicant is qualified in accordance 4 with the provisions of this chapter, the chapters identified in RCW 5 18.130.040(2), and the rules adopted by the disciplining authority. 6 Sec. 2. RCW 18.130.180 and 2021 c 157 s 7 are each amended to 7 read as follows: 8 ((The)) Except as provided in section 3 of this act, the 9 following conduct, acts, or conditions constitute unprofessional 10 conduct for any license holder under the jurisdiction of this 11 chapter: 12 (1) The commission of any act involving moral turpitude, 13 dishonesty, or corruption relating to the practice of the person's 14 profession, whether the act constitutes a crime or not. If the act 15 constitutes a crime, conviction in a criminal proceeding is not a 16 condition precedent to disciplinary action. Upon such a conviction, 17 however, the judgment and sentence is conclusive evidence at the 18 ensuing disciplinary hearing of the guilt of the license holder of 19 the crime described in the indictment or information, and of the 20 person's violation of the statute on which it is based. For the 21 purposes of this section, conviction includes all instances in which 22 a plea of guilty or nolo contendere is the basis for the conviction 23 and all proceedings in which the sentence has been deferred or 24 suspended. Nothing in this section abrogates rights guaranteed under 25 chapter 9.96A RCW; 26 (2) Misrepresentation or concealment of a material fact in 27 obtaining a license or in reinstatement thereof; 28 (3) All advertising which is false, fraudulent, or misleading; 29 (4) Incompetence, negligence, or malpractice which results in 30 injury to a patient or which creates an unreasonable risk that a 31 patient may be harmed. The use of a nontraditional treatment by 32 itself shall not constitute unprofessional conduct, provided that it 33 does not result in injury to a patient or create an unreasonable risk 34 that a patient may be harmed; 35 (5) Suspension, revocation, or restriction of the individual's 36 license to practice any health care profession by competent authority 37 in any state, federal, or foreign jurisdiction, a certified copy of 38 p. 3 SB 5400 the order, stipulation, or agreement being conclusive evidence of the 1 revocation, suspension, or restriction; 2 (6) ((Except when authorized by RCW 18.130.345, the)) The 3 possession, use, prescription for use, or distribution of controlled 4 substances or legend drugs in any way other than for legitimate or 5 therapeutic purposes, diversion of controlled substances or legend 6 drugs, the violation of any drug law, or prescribing controlled 7 substances for oneself; 8 (7) Violation of any state or federal statute or administrative 9 rule regulating the profession in question, including any statute or 10 rule defining or establishing standards of patient care or 11 professional conduct or practice; 12 (8) Failure to cooperate with the disciplining authority by: 13 (a) Not furnishing any papers, documents, records, or other 14 items; 15 (b) Not furnishing in writing a full and complete explanation 16 covering the matter contained in the complaint filed with the 17 disciplining authority; 18 (c) Not responding to subpoenas issued by the disciplining 19 authority, whether or not the recipient of the subpoena is the 20 accused in the proceeding; or 21 (d) Not providing reasonable and timely access for authorized 22 representatives of the disciplining authority seeking to perform 23 practice reviews at facilities utilized by the license holder; 24 (9) Failure to comply with an order issued by the disciplining 25 authority or a stipulation for informal disposition entered into with 26 the disciplining authority; 27 (10) Aiding or abetting an unlicensed person to practice when a 28 license is required; 29 (11) Violations of rules established by any health agency; 30 (12) Practice beyond the scope of practice as defined by law or 31 rule; 32 (13) Misrepresentation or fraud in any aspect of the conduct of 33 the business or profession; 34 (14) Failure to adequately supervise auxiliary staff to the 35 extent that the consumer's health or safety is at risk; 36 (15) Engaging in a profession involving contact with the public 37 while suffering from a contagious or infectious disease involving 38 serious risk to public health; 39 p. 4 SB 5400 (16) Promotion for personal gain of any unnecessary or 1 inefficacious drug, device, treatment, procedure, or service; 2 (17) Conviction of any gross misdemeanor or felony relating to 3 the practice of the person's profession. For the purposes of this 4 subsection, conviction includes all instances in which a plea of 5 guilty or nolo contendere is the basis for conviction and all 6 proceedings in which the sentence has been deferred or suspended. 7 Nothing in this section abrogates rights guaranteed under chapter 8 9.96A RCW; 9 (18) ((The procuring, or aiding or abetting in procuring, a 10 criminal abortion; 11 (19))) The offering, undertaking, or agreeing to cure or treat 12 disease by a secret method, procedure, treatment, or medicine, or the 13 treating, operating, or prescribing for any health condition by a 14 method, means, or procedure which the licensee refuses to divulge 15 upon demand of the disciplining authority; 16 (((20))) (19) The willful betrayal of a practitioner-patient 17 privilege as recognized by law; 18 (((21))) (20) Violation of chapter 19.68 RCW or a pattern of 19 violations of RCW 41.05.700(8), 48.43.735(8), 48.49.020, 48.49.030, 20 71.24.335(8), or 74.09.325(8); 21 (((22))) (21) Interference with an investigation or disciplinary 22 proceeding by willful misrepresentation of facts before the 23 disciplining authority or its authorized representative, or by the 24 use of threats or harassment against any patient or witness to 25 prevent them from providing evidence in a disciplinary proceeding or 26 any other legal action, or by the use of financial inducements to any 27 patient or witness to prevent or attempt to prevent him or her from 28 providing evidence in a disciplinary proceeding; 29 (((23))) (22) Current misuse of: 30 (a) Alcohol; 31 (b) Controlled substances; or 32 (c) Legend drugs; 33 (((24))) (23) Abuse of a client or patient or sexual contact with 34 a client or patient; 35 (((25))) (24) Acceptance of more than a nominal gratuity, 36 hospitality, or subsidy offered by a representative or vendor of 37 medical or health-related products or services intended for patients, 38 in contemplation of a sale or for use in research publishable in 39 professional journals, where a conflict of interest is presented, as 40 p. 5 SB 5400 defined by rules of the disciplining authority, in consultation with 1 the department, based on recognized professional ethical standards; 2 (((26))) (25) Violation of RCW 18.130.420; 3 (((27))) (26) Performing conversion therapy on a patient under 4 age eighteen; 5 (((28))) (27) Violation of RCW 18.130.430. 6 NEW SECTION. Sec. 3. A new section is added to chapter 18.130 7 RCW to read as follows: 8 (1) Notwithstanding RCW 18.130.180, the following shall not 9 constitute unprofessional conduct under this chapter: 10 (a) The provision of, authorization of, recommendation of, aiding 11 in, assistance in, referral for, or other participation in any 12 reproductive health care services or gender affirming treatment, by a 13 license holder acting in accordance with the laws of this state, 14 including those relating to accepted standards of care, regardless of 15 whether the patient is a resident of this state or another state; 16 (b) A conviction or disciplinary action based solely on the 17 license holder's violation of another state's laws prohibiting the 18 provision of, authorization of, recommendation of, aiding in, 19 assistance in, referral for, or other participation in any 20 reproductive health care services or gender affirming treatment. 21 (2) Except as required by chapter 18.71B RCW, the following, 22 alone or in combination, shall not serve as the basis for a denial of 23 an application for licensure, licensure renewal, or temporary 24 practice permit, or for any other disciplinary action by a 25 disciplining authority against an applicant or license holder: 26 (a) The provision of, authorization of, recommendation of, aiding 27 in, assistance in, referral for, or other participation in any 28 reproductive health care services or gender affirming treatment, by a 29 license holder acting in accordance with the laws of this state, 30 including those relating to accepted standards of care, regardless of 31 whether the patient is a resident of this state or another state; 32 (b) A conviction or disciplinary action based solely on the 33 license holder's violation of another state's laws prohibiting the 34 provision of, authorization of, recommendation of, aiding in, 35 assistance in, referral for, or other participation in any 36 reproductive health care services or gender affirming treatment. 37 (3) Nothing in this section shall be construed to expand the 38 scope of practice of any license holder licensed under this title, 39 p. 6 SB 5400 nor does this section give any such license holder the authority to 1 act outside their scope of practice as defined under this title. 2 (4) For the purposes of this section the following definitions 3 apply: 4 (a) "Gender affirming treatment" means a service or product that 5 a health care provider, as defined in RCW 70.02.010, provides to an 6 individual to support and affirm the individual's gender identity. 7 "Gender affirming treatment" includes, but is not limited to, 8 treatment for gender dysphoria. "Gender affirming treatment" can be 9 provided to two spirit, transgender, nonbinary, and other gender 10 diverse individuals. 11 (b) "Reproductive health care services" means any medical 12 services or treatments, including pharmaceutical and preventive care 13 services or treatments, directly involved in the reproductive system 14 and its processes, functions, and organs involved in reproduction. 15 --- END --- p. 7 SB 5400