5948-S

AN ACT Relating to procedures for responding to violations of the uniform disciplinary act; amending RCW 18.130.090 and 18.130.175; adding a new section to chapter 18.130 RCW; and creating a new section.

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

Sec. 1. RCW 18.130.090 and 1986 c 259 s 6 are each amended to read as follows:

((~~(1)~~)) If the disciplining authority determines, upon investigation, that there is reason to believe a violation of RCW 18.130.180 has occurred, a statement of charge or charges shall be prepared and served upon the license holder or applicant at the earliest practical time. The statement of charge or charges shall be accompanied by a notice that the license holder or applicant may request a hearing to contest the charge or charges. The license holder or applicant must file a request for hearing with the disciplining authority within twenty days after being served the statement of charges. ((~~The failure to request a hearing constitutes a default, whereupon the disciplining authority may enter a decision on the basis of the facts available to it.~~

(2) If a hearing is requested, the time of the hearing shall be fixed by the disciplining authority as soon as convenient, but the hearing shall not be held earlier than thirty days after service of the charges upon the license holder or applicant. A notice of hearing shall be issued at least twenty days prior to the hearing, specifying the time, date, and place of the hearing. The notice shall also notify the license holder or applicant that a record of the proceeding will be kept, that he or she will have the opportunity to appear personally and to have counsel present, with the right to produce witnesses, who will be subject to cross-examination, and evidence in his or her own behalf, to cross-examine witnesses testifying against him or her, to examine such documentary evidence as may be produced against him or her, to conduct depositions, and to have subpoenas issued by the disciplining authority.)) If the twenty-day limit results in a hardship upon the license holder or applicant, he or she may request for good cause an extension not to exceed sixty additional days. If the disciplining authority finds that there is good cause, it shall grant the extension.

NEW SECTION. Sec. 2. A new section is added to chapter 18.130 RCW to read as follows:

DISCIPLINARY AUTHORITY--REQUIRED UNIFORM PROCEDURES. In the performance of its responsibilities under this chapter, the disciplinary authority shall:

(1) Develop a uniform procedure to respond to public inquiries concerning complaints and their disposition, active investigations, statement of charges, and findings of fact and final orders involving a licensee, applicant, or unlicensed person provided that public release of information related to disciplinary actions or violations of this chapter are limited to revocations of licenses. Suspension of a license or other conditions placed upon a license are not subject to public release;

(2) Upon making contact with a licensee, applicant, or unlicensed person for the purpose of investigation of a complaint, inform the licensee, applicant, or unlicensed person of the nature of the complaint and the individual's right to obtain legal counsel prior to responding to any inquiries by the disciplinary authority. The licensee, applicant, or unlicensed person shall also be informed that responses to the disciplinary authority's inquiries may be used in adjudicative proceedings;

(3) Upon issuance of a statement of charges to the licensee, applicant, or unlicensed person, provide full disclosure of pertinent records and other supporting information used in the investigation;

(4) Develop a uniform procedure for the timely and complete response to a licensee, applicant, or unlicensed person request for discovery, including reasonable interrogatories, request for production and depositions, and reasonable and appropriate request for department staff consultation concerning the investigation of the licensee, applicant, or unlicensed person;

(5) Allow the respondent to have at least ninety days to submit documents and any other evidence the respondent wishes to have considered in a settlement conference. Extension may be granted with showing of good cause.

(6) Not prohibit a licensee, applicant, or unlicensed person from agreeing to sanctions without admitting to a violation of this chapter;

(7) Honor a settlement concerning violations of this chapter with a licensee, applicant, or unlicensed person agreed to prior to a hearing, except that such settlements may be disapproved by the disciplinary authority for good cause. In any case, a licensee, applicant, or unlicensed person shall not be denied a hearing in accordance with chapter 34.05 RCW;

(8) Inform witnesses in an investigation that their responses to inquiries may be released to the licensee, applicant, or unlicensed person under investigation should a statement of charges be issued by the disciplinary authority;

(9) Comply with restrictions on ex parte communications as provided for under RCW 34.05.455.

Sec. 3. RCW 18.130.175 and 1991 c 3 s 270 are each amended to read as follows:

(1) In lieu of disciplinary action under RCW 18.130.160 and if the disciplining authority determines that the unprofessional conduct may be the result of substance abuse, the disciplining authority may refer the license holder to a voluntary substance abuse monitoring program approved by the disciplining authority.

The cost of the treatment shall be the responsibility of the license holder, but the responsibility does not preclude payment by an employer, existing insurance coverage, or other sources. Primary alcoholism or drug treatment shall be provided by approved treatment ((~~facilities~~)) programs under RCW ((~~70.96A.020(2)~~)) 70.96A.020: PROVIDED, That nothing shall prohibit the disciplining authority from approving additional services and programs as an adjunct to primary alcoholism or drug treatment. The disciplining authority may also approve the use of out-of-state programs. Referral of the license holder to the program shall be done only with the consent of the license holder. Referral to the program may also include probationary conditions for a designated period of time. If the license holder does not consent to be referred to the program or does not successfully complete the program, the disciplining authority may take appropriate action under RCW 18.130.160. If the license holder has a setback in complying with the program, but program records indicate continuing progress toward the successful completion of the program, the disciplinary authority shall encourage the license holder to continue participation in the program and may impose additional conditions on the license holder, but shall not take action under RCW 18.130.160 unless the license holder is deemed unable to continue to practice with reasonable skill and safety under the conditions imposed on his or her license.

(2) In addition to approving substance abuse monitoring programs that may receive referrals from the disciplining authority, the disciplining authority may establish by rule requirements for participation of license holders who are not being investigated or monitored by the disciplining authority for substance abuse. License holders voluntarily participating in the approved programs without being referred by the disciplining authority shall not be subject to disciplinary action under RCW 18.130.160 for their substance abuse, and shall not have their participation made known to the disciplining authority, if they meet the requirements of this section and the program in which they are participating.

(3) The license holder shall sign a waiver allowing the program to release information to the disciplining authority if the licensee does not comply with the requirements of this section or is unable to practice with reasonable skill or safety. The substance abuse program shall report to the disciplining authority any license holder who fails to comply with the requirements of this section or the program or who, in the opinion of the program, is unable to practice with reasonable skill or safety. License holders shall report to the disciplining authority if they fail to comply with this section or do not complete the program's requirements. License holders may, upon the agreement of the program and disciplining authority, reenter the program if they have previously failed to comply with this section.

(4) The treatment and pretreatment records of license holders referred to or voluntarily participating in approved programs shall be confidential, shall be exempt from RCW 42.17.250 through 42.17.450, and shall not be subject to discovery by subpoena or admissible as evidence except for monitoring records reported to the disciplining authority for cause as defined in subsection (3) of this section. Monitoring records relating to license holders referred to the program by the disciplining authority or relating to license holders reported to the disciplining authority by the program for cause, shall be released to the disciplining authority at the request of the disciplining authority. Records held by the disciplining authority under this section shall be exempt from RCW 42.17.250 through 42.17.450 and shall not be subject to discovery by subpoena except by the license holder.

(5) "Substance abuse," as used in this section, means the impairment, as determined by the disciplining authority, of a license holder's professional services by an addiction to, a dependency on, or the use of alcohol, legend drugs, or controlled substances.

(6) This section does not affect an employer's right or ability to make employment-related decisions regarding a license holder. This section does not restrict the authority of the disciplining authority to take disciplinary action for any other unprofessional conduct.

(7) A person who, in good faith, reports information or takes action in connection with this section is immune from civil liability for reporting information or taking the action.

(a) The immunity from civil liability provided by this section shall be liberally construed to accomplish the purposes of this section and the persons entitled to immunity shall include:

(i) An approved monitoring treatment program;

(ii) The professional association operating the program;

(iii) Members, employees, or agents of the program or association;

(iv) Persons reporting a license holder as being impaired or providing information about the license holder's impairment; and

(v) Professionals supervising or monitoring the course of the impaired license holder's treatment or rehabilitation.

(b) The immunity provided in this section is in addition to any other immunity provided by law.

(8) In addition to health care professionals governed by this chapter, this section also applies to pharmacists under chapter 18.64 RCW and pharmacy assistants under chapter 18.64A RCW. For that purpose, the board of pharmacy shall be deemed to be the disciplining authority and the substance abuse monitoring program shall be in lieu of disciplinary action under RCW 18.64.160 or 18.64A.050. The board of pharmacy shall adjust license fees to offset the costs of this program.

NEW SECTION. Sec. 4. This act applies to all actions pending or in process before a disciplinary authority on January 1, 1993, or all actions initiated by a disciplinary authority on or after January 1, 1993, regardless of when the cause of action may have arisen. To this extent, this act applies retroactively, but in all other respects it applies prospectively.