S.B. 18 Enrolled

HEALTH CARE PROVIDER PRACTICE AND
CONDUCT AMENDMENTS
1997 GENERAL SESSION
STATE OF UTAH
Sponsor: Robert F. Montgomery
AN ACT RELATING TO HEALTH; CLARIFYING ACTIONS THAT ARE UNLAWFUL
INVOLVEMENT IN A PHYSICIAN'S OR HEALTH CARE PROVIDER'S
INDEPENDENT JUDGMENT, AND ACTIONS THAT ARE NOT UNLAWFUL
INVOLVEMENT; AND PROVIDING PARALLEL LANGUAGE IN THE INSURANCE
CODE.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
31A-4-106, as last amended by Chapter 20, Laws of Utah 1995
58-67-102, as enacted by Chapter 248, Laws of Utah 1996
58-67-501, as enacted by Chapter 248, Laws of Utah 1996
58-68-102, as enacted by Chapter 248, Laws of Utah 1996
58-68-501, as enacted by Chapter 248, Laws of Utah 1996
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 31A-4-106 is amended to read:
31A-4-106. Provision of health care.
(1) As used in this section, "health care provider" has the same definition as in Section
78-14-3.
[(1)] (2) Except under Subsection [(2)] (3) or [(3)] (4), no person may directly or indirectly
provide health care, or arrange for, manage, or administer the provision or arrangement of, collect
advance payments for, or compensate providers of health care unless authorized to do so or
employed by someone authorized to do so under Chapter 5, 7, 8, 9, or 14.
[(2)] (3) Subsection [(1)] (2) does not apply to:
(a) a natural person or professional corporation that alone or with others professionally
associated with him or it, and without receiving consideration for services in advance of the need

for a particular service, provides the service personally with the aid of nonprofessional assistants;
(b) a health care facility as defined in Section 26-21-2 which is licensed or exempt from
licensing under Title 26, Chapter 21, and which does not engage in health care insurance as defined
under Subsection 31A-1-301(35);
(c) a person who files with the commissioner under Section 31A-1-105 a certificate from
the United States Department of Labor, or other evidence satisfactory to the commissioner, showing
that the laws of Utah are preempted under Section 514 of the Employee Retirement Income Security
Act of 1974 or other federal law;
(d) a person licensed under Chapter 23 who has arranged for the insurance of all services
under Subsection [(1)] (2) by an insurer authorized to do business in Utah, or under Section
31A-15-103, or who works for an uninsured employer that complies with Chapter 13; or
(e) an employer that self-funds its obligations to provide health care services or indemnity
for its employees, provided the employer complies with Chapter 13.
[(3) No] (4) A person may not provide administrative or management services for any other
person subject to Subsection [(1)] (2) and not exempt under Subsection [(2)] (3) unless the person
is an authorized insurer under Chapter 5, 7, 8, 9, or 14, or complies with Chapter 25.
(5) It is unlawful for any insurer or person providing, administering, or managing health
care insurance under Chapter 5, 7, 8, 9, or 14 to enter into a contract that limits a health care
provider's ability to advise the health care provider's patients or clients fully about treatment options
or other issues that affect the health care of the health care provider's patients or clients.
Section 2. Section 58-67-102 is amended to read:
58-67-102. Definitions.
In addition to the definitions in Section 58-1-102, as used in this chapter:
(1) "Administrative penalty" means a monetary fine imposed by the division for acts or
omissions determined to constitute unprofessional or unlawful conduct, as a result of an adjudicative
proceeding conducted in accordance with Title 63, Chapter 46b, Administrative Procedures Act.
(2) "ACGME" means the Accreditation Council for Graduate Medical Education of the
American Medical Association.

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(3) "Board" means the Physician's Licensing Board created in Section 58-67-201.
(4) "Diagnose" means:
(a) to examine in any manner another person, parts of a person's body, substances, fluids,
or materials excreted, taken, or removed from a person's body, or produced by a person's body, to
determine the source, nature, kind, or extent of a disease or other physical or mental condition;
(b) to attempt to conduct an examination or determination described under Subsection (4)(a);
(c) to hold oneself out as making or to represent that one is making an examination or
determination as described in Subsection (4)(a); or
(d) to make an examination or determination as described in Subsection (4)(a) upon or from
information supplied directly or indirectly by another person, whether or not in the presence of the
person making or attempting the diagnosis or examination.
(5) "LCME" means the Liaison Committee on Medical Education of the American Medical
Association.
(6) "Medical assistant" means an unlicensed individual working under the direct and
immediate supervision of a licensed physician and surgeon and engaged in specific tasks assigned
by the licensed physician and surgeon in accordance with the standards and ethics of the profession.
(7) "Physician" means both physicians and surgeons licensed under Section 58-67-301, Utah
Medical Practice Act, and osteopathic physicians and surgeons licensed under Section 58-68-301,
Utah Osteopathic Medical Practice Act.
(8) "Practice of medicine" means:
(a) to diagnose, treat, correct, or prescribe for any human disease, ailment, injury, infirmity,
deformity, pain or other condition, physical or mental, real or imaginary, or to attempt to do so, by
any means or instrumentality, and by an individual in Utah or outside the state upon or for any
human within the state;
(b) when a person not licensed as a physician directs a licensee under this chapter to
withhold or alter the health care services that the licensee has ordered, but practice of medicine does
not include any conduct under Subsection 58-67-501(2);
(c) to maintain an office or place of business for the purpose of doing any of the acts

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described in Subsection (8)(a) whether or not for compensation; or
(d) to use, in the conduct of any occupation or profession pertaining to the diagnosis or
treatment of human diseases or conditions in any printed material, stationery, letterhead, envelopes,
signs, or advertisements, the designation "doctor", "doctor of medicine", "physician", "surgeon",
"physician and surgeon", "Dr.," "M.D.," or any combination of these designations in any manner
which might cause a reasonable person to believe the individual using the designation is a licensed
physician and surgeon, and if the party using the designation is not a licensed physician and surgeon,
the designation must additionally contain the description of the branch of the healing arts for which
the person has a license.
(9) "Prescription drug or device" means:
(a) a drug or device which, under federal law, is required to be labeled with either of the
following statements or their equivalent:
(i) "CAUTION: Federal law prohibits dispensing without prescription"; or
(ii) "CAUTION: Federal law restricts this drug to use by or on the order of a licensed
veterinarian"; or
(b) a drug or device that is required by any applicable federal or state law or rule to be
dispensed on prescription only or is restricted to use by practitioners only.
(10) "SPEX" means the Special Purpose Examination of the Federation of State Medical
Boards.
(11) "Unlawful conduct" is as defined in Sections 58-1-501 and 58-67-501.
(12) "Unprofessional conduct" is as defined in Sections 58-1-501 and 58-67-502, and as may
be further defined by division rule.
Section 3. Section 58-67-501 is amended to read:
58-67-501. Unlawful conduct.
(1) "Unlawful conduct" includes, in addition to the definition in Section 58-1-501:
[(1)] (a) buying, selling, or fraudulently obtaining, any medical diploma, license, certificate,
or registration; [and]
[(2)] (b) aiding or abetting the buying, selling, or fraudulently obtaining of any medical

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diploma, license, certificate, or registration[.];
(c) substantially interfering with a licensee's lawful and competent practice of medicine in
accordance with this chapter by:
(i) any person or entity that manages, owns, operates, or conducts a business having a direct
or indirect financial interest in the licensee's professional practice; or
(ii) anyone other than another physician licensed under this title, who is engaged in direct
clinical care or consultation with the licensee in accordance with the standards and ethics of the
profession of medicine; or
(d) entering into a contract that limits a licensee's ability to advise the licensee's patients
fully about treatment options or other issues that affect the health care of the licensee's patients.
(2) "Unlawful conduct" does not include:
(a) establishing, administering, or enforcing the provisions of a policy of disability insurance
by an insurer doing business in this state in accordance with Title 31A, Insurance Code;
(b) adopting, implementing, or enforcing utilization management standards related to
payment for a licensee's services, provided that:
(i) utilization management standards adopted, implemented, and enforced by the payer have
been approved by a physician or by a committee that contains one or more physicians; and
(ii) the utilization management standards does not preclude a licensee from exercising
independent professional judgment on behalf of the licensee's patients in a manner that is
independent of payment considerations;
(c) developing and implementing clinical practice standards that are intended to reduce
morbidity and mortality or developing and implementing other medical or surgical practice standards
related to the standardization of effective health care practices, provided that:
(i) the practice standards and recommendations have been approved by a physician or by a
committee that contains one or more physicians; and
(ii) the practice standards do not preclude a licensee from exercising independent
professional judgment on behalf of the licensee's patients in a manner that is independent of
payment considerations;

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(d) requesting or recommending that a patient obtain a second opinion from a licensee;
(e) conducting peer review, quality evaluation, quality improvement, risk management, or
similar activities designed to identify and address practice deficiencies with health care providers,
health care facilities, or the delivery of health care;
(f) providing employment supervision or adopting employment requirements that do not
interfere with the licensee's ability to exercise independent professional judgment on behalf of the
licensee's patients, provided that employment requirements that may not be considered to interfere
with an employed licensee's exercise of independent professional judgment include:
(i) an employment requirement that restricts the licensee's access to patients with whom the
licensee's employer does not have a contractual relationship, either directly or through contracts with
one or more third-party payers; or
(ii) providing compensation incentives that are not related to the treatment of any particular
patient;
(g) providing benefit coverage information, giving advice, or expressing opinions to a
patient or to a family member of a patient to assist the patient or family member in making a
decision about health care that has been recommended by a licensee; or
(h) any otherwise lawful conduct that does not substantially interfere with the licensee's
ability to exercise independent professional judgment on behalf of the licensee's patients and that
does not constitute the practice of medicine as defined in this chapter.
Section 4. Section 58-68-102 is amended to read:
58-68-102. Definitions.
In addition to the definitions in Section 58-1-102, as used in this chapter:
(1) "Administrative penalty" means a monetary fine imposed by the division for acts or
omissions determined to constitute unprofessional or unlawful conduct, as a result of an adjudicative
proceeding conducted in accordance with Title 63, Chapter 46b, Administrative Procedures Act.
(2) "ACGME" means the Accreditation Council for Graduate Medical Education of the
American Medical Association.
(3) "AOA" means the American Osteopathic Association.

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(4) "Board" means the Osteopathic Physician's Licensing Board created in Section
58-68-201.
(5) "Diagnose" means:
(a) to examine in any manner another person, parts of a person's body, substances, fluids,
or materials excreted, taken, or removed from a person's body, or produced by a person's body, to
determine the source, nature, kind, or extent of a disease or other physical or mental condition;
(b) to attempt to conduct an examination or determination described under Subsection (5)(a);
[or]
(c) to hold oneself out as making or to represent that one is making an examination or
determination as described in Subsection (5)(a); or
(d) to make an examination or determination as described in Subsection (5)(a) upon or from
information supplied directly or indirectly by another person, whether or not in the presence of the
person making or attempting the diagnosis or examination.
(6) "Medical assistant" means an unlicensed individual working under the direct and
immediate supervision of a licensed osteopathic physician and surgeon and engaged in specific tasks
assigned by the licensed osteopathic physician and surgeon in accordance with the standards and
ethics of the profession.
(7) "Physician" means both physicians and surgeons licensed under Section 58-67-301, Utah
Medical Practice Act, and osteopathic physicians and surgeons licensed under Section 58-68-301,
Utah Osteopathic Medical Practice Act.
(8) "Practice of osteopathic medicine" means:
(a) to diagnose, treat, correct, or prescribe for any human disease, ailment, injury, infirmity,
deformity, pain, or other condition, physical or mental, real or imaginary, or to attempt to do so, by
any means or instrumentality, which in whole or in part is based upon emphasis of the importance
of the musculoskeletal system and manipulative therapy in the maintenance and restoration of health,
by an individual in Utah or outside of the state upon or for any human within the state;
(b) when a person not licensed as a physician directs a licensee under this chapter to
withhold or alter the health care services that the licensee has ordered, but practice of medicine does

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not include any conduct under Subsection 58-68-501(2);
(c) to maintain an office or place of business for the purpose of doing any of the acts
described in Subsection (8)(a) whether or not for compensation; or
(d) to use, in the conduct of any occupation or profession pertaining to the diagnosis or
treatment of human diseases or conditions, in any printed material, stationery, letterhead, envelopes,
signs, or advertisements, the designation "doctor," "doctor of osteopathic medicine," "osteopathic
physician," "osteopathic surgeon," "osteopathic physician and surgeon," "Dr.," "D.O.," or any
combination of these designations in any manner which might cause a reasonable person to believe
the individual using the designation is a licensed osteopathic physician, and if the party using the
designation is not a licensed osteopathic physician, the designation must additionally contain the
description of the branch of the healing arts for which the person has a license.
(9) "Prescription drug or device" means:
(a) a drug or device which, under federal law, is required to be labeled with either of the
following statements or their equivalent:
(i) "CAUTION: Federal law prohibits dispensing without prescription"; or
(ii) "CAUTION: Federal law restricts this drug to use by or on the order of a licensed
veterinarian"; or
(b) a drug or device that is required by any applicable federal or state law or rule to be
dispensed on prescription only or is restricted to use by practitioners only.
(10) "SPEX" means the Special Purpose Examination of the Federation of State Medical
Boards.
(11) "Unlawful conduct" is as defined in Sections 58-1-501 and 58-68-501.
(12) "Unprofessional conduct" is as defined in Sections 58-1-501 and 58-68-502 and as may
be further defined by division rule.
Section 5. Section 58-68-501 is amended to read:
58-68-501. Unlawful conduct.
(1) "Unlawful conduct" includes, in addition to the definition in Section 58-1-501:
[(1)] (a) buying, selling, or fraudulently obtaining any osteopathic medical diploma, license,

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certificate, or registration; and
[(2)] (b) aiding or abetting the buying, selling, or fraudulently obtaining of any osteopathic
medical diploma, license, certificate, or registration[.];
(c) substantially interfering with a licensee's lawful and competent practice of medicine in
accordance with this chapter by:
(i) any person or entity that manages, owns, operates, or conducts a business having a direct
or indirect financial interest in the licensee's professional practice; or
(ii) anyone other than another physician licensed under this title, who is engaged in direct
clinical care or consultation with the licensee in accordance with the standards and ethics of the
profession of medicine; or
(d) entering into a contract that limits a licensee's ability to advise the licensee's patients
fully about treatment options or other issues that affect the health care of the licensee's patients.
(2) "Unlawful conduct" does not include:
(a) establishing, administering, or enforcing the provisions of a policy of disability insurance
by an insurer doing business in this state in accordance with Title 31A, Insurance Code;
(b) adopting, implementing, or enforcing utilization management standards related to
payment for a licensee's services, provided that:
(i) utilization management standards adopted, implemented, and enforced by the payer have
been approved by a physician or by a committee that contains one or more physicians; and
(ii) the utilization management standards does not preclude a licensee from exercising
independent professional judgment on behalf of the licensee's patients in a manner that is
independent of payment considerations;
(c) developing and implementing clinical practice standards that are intended to reduce
morbidity and mortality or developing and implementing other medical or surgical practice standards
related to the standardization of effective health care practices, provided that:
(i) the practice standards and recommendations have been approved by a physician or by a
committee that contains one or more physicians; and
(ii) the practice standards do not preclude a licensee from exercising independent

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professional judgment on behalf of the licensee's patients in a manner that is independent of
payment considerations;
(d) requesting or recommending that a patient obtain a second opinion from a licensee;
(e) conducting peer review, quality evaluation, quality improvement, risk management, or
similar activities designed to identify and address practice deficiencies with health care providers,
health care facilities, or the delivery of health care;
(f) providing employment supervision or adopting employment requirements that do not
interfere with the licensee's ability to exercise independent professional judgment on behalf of the
licensee's patients, provided that employment requirements that may not be considered to interfere
with an employed licensee's exercise of independent professional judgment include:
(i) an employment requirement that restricts the licensee's access to patients with whom the
licensee's employer does not have a contractual relationship, either directly or through contracts with
one or more third-party payers; or
(ii) providing compensation incentives that are not related to the treatment of any particular
patient;
(g) providing benefit coverage information, giving advice, or expressing opinions to a
patient or to a family member of a patient to assist the patient or family member in making a
decision about health care that has been recommended by a licensee; or
(h) any otherwise lawful conduct that does not substantially interfere with the licensee's
ability to exercise independent professional judgment on behalf of the licensee's patients and that
does not constitute the practice of medicine as defined in this chapter.

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