1     
PROHIBITION ON AGE BASED TESTING FOR

2     
PHYSICIANS

3     
2020 GENERAL SESSION

4     
STATE OF UTAH

5     
Chief Sponsor: Keven J. Stratton

6     
Senate Sponsor: ____________

7     

8     LONG TITLE
9     General Description:
10          This bill prohibits age-based testing of physicians for licensure, reimbursement,
11     employment, or admitting privileges.
12     Highlighted Provisions:
13          This bill:
14          ▸     prohibits age-based testing of physicians by the Division of Occupational and
15     Professional Licensing, a health care facility, and a managed care organization.
16     Money Appropriated in this Bill:
17          None
18     Other Special Clauses:
19          None
20     Utah Code Sections Affected:
21     AMENDS:
22          26-21-31, as last amended by Laws of Utah 2019, Chapter 445
23          31A-22-618, as last amended by Laws of Utah 2019, Chapter 136
24          31A-45-305, as last amended by Laws of Utah 2019, Chapter 445
25          58-67-302, as last amended by Laws of Utah 2019, Chapter 445
26          58-67-302.5, as last amended by Laws of Utah 2019, Chapter 445
27          58-68-302, as last amended by Laws of Utah 2019, Chapter 445
28     

29     Be it enacted by the Legislature of the state of Utah:
30          Section 1. Section 26-21-31 is amended to read:
31          26-21-31. Prohibition on certain age-based physician testing.
32          A health care facility may not require for purposes of employment, privileges, or
33     reimbursement, that a physician, as defined in Section 58-67-102, take a cognitive test when
34     the physician reaches a specified age[, unless the test reflects the standards described in
35     Subsections 58-67-302(5)(b)(i) through (x)].
36          Section 2. Section 31A-22-618 is amended to read:
37          31A-22-618. Nondiscrimination among health care professionals -- Prohibition on
38     age-based testing for physicians.
39          (1) Except as provided under Section 31A-45-303 and Subsection (2), and except as to
40     insurers licensed under Chapter 8, Health Maintenance Organizations and Limited Health
41     Plans, no insurer may unfairly discriminate against any licensed class of health care providers
42     by structuring contract exclusions which exclude payment of benefits for the treatment of any
43     illness, injury, or condition by any licensed class of health care providers when the treatment is
44     within the scope of the licensee's practice and the illness, injury, or condition falls within the
45     coverage of the contract. Upon the written request of an insured alleging an insurer has
46     violated this section, the commissioner shall hold a hearing to determine if the violation exists.
47     The commissioner may consolidate two or more related alleged violations into a single hearing.
48          (2) Coverage for licensed providers for behavioral analysis may be limited by an
49     insurer in accordance with Section 58-61-714. Nothing in this section prohibits an insurer
50     from electing to provide coverage for other licensed professionals whose scope of practice
51     includes behavior analysis.
52          (3) An insurer may not require for purposes of reimbursement that a physician, as
53     defined in Section 58-67-102, take a cognitive test when the physician reaches a specified age.
54          Section 3. Section 31A-45-305 is amended to read:
55          31A-45-305. Prohibition on certain age-based physician testing.
56          A managed care organization or other third party may not require for purposes of
57     reimbursement that a physician, as defined in Section 58-67-102, take a cognitive test when the
58     physician reaches a specified age[, unless the test reflects the standards described in
59     Subsections 58-67-302(5)(b)(i) through (x)].
60          Section 4. Section 58-67-302 is amended to read:
61          58-67-302. Qualifications for licensure.
62          (1) An applicant for licensure as a physician and surgeon, except as set forth in
63     Subsection (2), shall:
64          (a) submit an application in a form prescribed by the division, which may include:
65          (i) submissions by the applicant of information maintained by practitioner data banks,
66     as designated by division rule, with respect to the applicant;
67          (ii) a record of professional liability claims made against the applicant and settlements
68     paid by or on behalf of the applicant; and
69          (iii) authorization to use a record coordination and verification service approved by the
70     division in collaboration with the board;
71          (b) pay a fee determined by the department under Section 63J-1-504;
72          (c) be of good moral character;
73          (d) if the applicant is applying to participate in the Interstate Medical Licensure
74     Compact under Chapter 67b, Interstate Medical Licensure Compact, consent to a criminal
75     background check in accordance with Section 58-67-302.1 and any requirements established by
76     rule made in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
77          (e) provide satisfactory documentation of having successfully completed a program of
78     professional education preparing an individual as a physician and surgeon, as evidenced by:
79          (i) having received an earned degree of doctor of medicine from an LCME accredited
80     medical school or college; or
81          (ii) if the applicant graduated from a medical school or college located outside the
82     United States or its territories, submitting a current certification by the Educational
83     Commission for Foreign Medical Graduates or any successor organization approved by the
84     division in collaboration with the board;
85          (f) satisfy the division and board that the applicant:
86          (i) has successfully completed 24 months of progressive resident training in a program
87     approved by the ACGME, the Royal College of Physicians and Surgeons, the College of
88     Family Physicians of Canada, or any similar body in the United States or Canada approved by
89     the division in collaboration with the board; or
90          (ii) (A) has successfully completed 12 months of resident training in an ACGME
91     approved program after receiving a degree of doctor of medicine as required under Subsection
92     (1)(e);
93          (B) has been accepted in and is successfully participating in progressive resident
94     training in an ACGME approved program within Utah, in the applicant's second or third year
95     of postgraduate training; and
96          (C) has agreed to surrender to the division the applicant's license as a physician and
97     surgeon without any proceedings under Title 63G, Chapter 4, Administrative Procedures Act,
98     and has agreed the applicant's license as a physician and surgeon will be automatically revoked
99     by the division if the applicant fails to continue in good standing in an ACGME approved
100     progressive resident training program within the state;
101          (g) pass the licensing examination sequence required by division rule made in
102     collaboration with the board;
103          (h) be able to read, write, speak, understand, and be understood in the English language
104     and demonstrate proficiency to the satisfaction of the board if requested by the board;
105          (i) meet with the board and representatives of the division, if requested, for the purpose
106     of evaluating the applicant's qualifications for licensure;
107          (j) designate:
108          (i) a contact person for access to medical records in accordance with the federal Health
109     Insurance Portability and Accountability Act; and
110          (ii) an alternate contact person for access to medical records, in the event the original
111     contact person is unable or unwilling to serve as the contact person for access to medical
112     records; and
113          (k) establish a method for notifying patients of the identity and location of the contact
114     person and alternate contact person, if the applicant will practice in a location with no other
115     persons licensed under this chapter.
116          (2) An applicant for licensure as a physician and surgeon by endorsement who is
117     currently licensed to practice medicine in any state other than Utah, a district or territory of the
118     United States, or Canada shall:
119          (a) be currently licensed with a full unrestricted license in good standing in any state,
120     district, or territory of the United States, or Canada;
121          (b) have been actively engaged in the legal practice of medicine in any state, district, or
122     territory of the United States, or Canada for not less than 6,000 hours during the five years
123     immediately preceding the date of application for licensure in Utah;
124          (c) comply with the requirements for licensure under Subsections (1)(a) through (e),
125     (1)(f)(i), and (1)(h) through (k);
126          (d) have passed the licensing examination sequence required in Subsection (1)(f) or
127     another medical licensing examination sequence in another state, district or territory of the
128     United States, or Canada that the division in collaboration with the board by rulemaking
129     determines is equivalent to its own required examination;
130          (e) not have any investigation or action pending against any health care license of the
131     applicant, not have a health care license that was suspended or revoked in any state, district or
132     territory of the United States, or Canada, and not have surrendered a health care license in lieu
133     of a disciplinary action, unless:
134          (i) the license was subsequently reinstated as a full unrestricted license in good
135     standing; or
136          (ii) the division in collaboration with the board determines to its satisfaction, after full
137     disclosure by the applicant, that:
138          (A) the conduct has been corrected, monitored, and resolved; or
139          (B) a mitigating circumstance exists that prevents its resolution, and the division in
140     collaboration with the board is satisfied that, but for the mitigating circumstance, the license
141     would be reinstated;
142          (f) submit to a records review, a practice history review, and comprehensive
143     assessments, if requested by the division in collaboration with the board; and
144          (g) produce satisfactory evidence that the applicant meets the requirements of this
145     Subsection (2) to the satisfaction of the division in collaboration with the board.
146          (3) An applicant for licensure by endorsement may engage in the practice of medicine
147     under a temporary license while the applicant's application for licensure is being processed by
148     the division, provided:
149          (a) the applicant submits a complete application required for temporary licensure to the
150     division;
151          (b) the applicant submits a written document to the division from:
152          (i) a health care facility licensed under Title 26, Chapter 21, Health Care Facility
153     Licensing and Inspection Act, stating that the applicant is practicing under the:
154          (A) invitation of the health care facility; and
155          (B) the general supervision of a physician practicing at the facility; or
156          (ii) two individuals licensed under this chapter, whose license is in good standing and
157     who practice in the same clinical location, both stating that:
158          (A) the applicant is practicing under the invitation and general supervision of the
159     individual; and
160          (B) the applicant will practice at the same clinical location as the individual;
161          (c) the applicant submits a signed certification to the division that the applicant meets
162     the requirements of Subsection (2);
163          (d) the applicant does not engage in the practice of medicine until the division has
164     issued a temporary license;
165          (e) the temporary license is only issued for and may not be extended or renewed
166     beyond the duration of one year from issuance; and
167          (f) the temporary license expires immediately and prior to the expiration of one year
168     from issuance, upon notification from the division that the applicant's application for licensure
169     by endorsement is denied.
170          (4) The division shall issue a temporary license under Subsection (3) within 15
171     business days after the applicant satisfies the requirements of Subsection (3).
172          (5) The division may not require the following requirements for licensure:
173           (a) a post-residency board certification; or
174          (b) a cognitive test when the physician reaches a specified age[, unless:].
175          [(i) the screening is based on evidence of cognitive changes associated with aging that
176     are relevant to physician performance;]
177          [(ii) the screening is based on principles of medical ethics;]
178          [(iii) physicians are involved in the development of standards for assessing
179     competency;]
180          [(iv) guidelines, procedures, and methods of assessment, which may include cognitive
181     screening, are relevant to physician practice and to the physician's ability to perform the tasks
182     specifically required in the physician's practice environment;]
183          [(v) the primary driver for establishing assessment results is the ethical obligation of
184     the profession to the health of the public and patient safety;]
185          [(vi) the goal of the assessment is to optimize physician competency and performance
186     through education, remediation, and modifications to a physician's practice environment or
187     scope;]
188          [(vii) a credentialing committee determines that public health or patient safety is
189     directly threatened, the screening permits a physician to retain the right to modify the
190     physician's practice environment to allow the physician to continue to provide safe and
191     effective care;]
192          [(viii) guidelines, procedures, and methods of assessment are transparent to physicians
193     and physicians' representatives, if requested by a physician or a physician's representative, and
194     physicians are made aware of the specific methods used, performance expectations and
195     standards against which performance will be judged, and the possible outcomes of the
196     screening or assessment;]
197          [(ix) education or remediation practices that result from screening or assessment
198     procedures are:]
199          [(A) supportive of physician wellness;]
200          [(B) ongoing; and]
201          [(C) proactive; and]
202          [(x) procedures and screening mechanisms that are distinctly different from for cause
203     assessments do not result in undue cost or burden to senior physicians providing patient care.]
204          Section 5. Section 58-67-302.5 is amended to read:
205          58-67-302.5. Licensing of graduates of foreign medical schools.
206          (1) Notwithstanding any other provision of law to the contrary, an individual enrolled
207     in a medical school outside the United States, its territories, the District of Columbia, or
208     Canada is eligible for licensure as a physician and surgeon in this state if the individual has
209     satisfied the following requirements:
210          (a) meets all the requirements of Subsection 58-67-302(1), except for Subsection
211     58-67-302(1)(e);
212          (b) has studied medicine in a medical school located outside the United States which is
213     recognized by an organization approved by the division;
214          (c) has completed all of the formal requirements of the foreign medical school except
215     internship or social service;
216          (d) has attained a passing score on the educational commission for foreign medical
217     graduates examination or other qualifying examinations such as the United States Medical
218     Licensing Exam parts I and II, which are approved by the division or a medical school
219     approved by the division;
220          (e) has satisfactorily completed one calendar year of supervised clinical training under
221     the direction of a United States medical education setting accredited by the liaison committee
222     for graduate medical education and approved by the division;
223          (f) has completed the postgraduate hospital training required by Subsection
224     58-67-302(1)(f)(i); and
225          (g) has passed the examination required by the division of all applicants for licensure.
226          (2) Satisfaction of the requirements of Subsection (1) is in lieu of:
227          (a) the completion of any foreign internship or social service requirements; and
228          (b) the certification required by Subsection 58-67-302(1)(e).
229          (3) Individuals who satisfy the requirements of Subsections (1)(a) through (g) shall be
230     eligible for admission to graduate medical education programs within the state, including
231     internships and residencies, which are accredited by the liaison committee for graduate medical
232     education.
233          (4) A document issued by a medical school located outside the United States shall be
234     considered the equivalent of a degree of doctor of medicine for the purpose of licensure as a
235     physician and surgeon in this state if:
236          (a) the foreign medical school is recognized by an organization approved by the
237     division;
238          (b) the document granted by the foreign medical school is issued after the completion
239     of all formal requirements of the medical school except internship or social service; and
240          (c) the foreign medical school certifies that the person to whom the document was
241     issued has satisfactorily completed the requirements of Subsection (1)(c).
242          (5) The division may not require as a requirement for licensure a cognitive test when
243     the physician reaches a specified age[, unless the test reflects the standards described in
244     Subsections 58-67-302(5)(b)(i) through (x)].
245          (6) The provisions for licensure under this section shall be known as the "fifth pathway
246     program."
247          Section 6. Section 58-68-302 is amended to read:
248          58-68-302. Qualifications for licensure.
249          (1) An applicant for licensure as an osteopathic physician and surgeon, except as set
250     forth in Subsection (2), shall:
251          (a) submit an application in a form prescribed by the division, which may include:
252          (i) submissions by the applicant of information maintained by practitioner data banks,
253     as designated by division rule, with respect to the applicant;
254          (ii) a record of professional liability claims made against the applicant and settlements
255     paid by or on behalf of the applicant; and
256          (iii) authorization to use a record coordination and verification service approved by the
257     division in collaboration with the board;
258          (b) pay a fee determined by the department under Section 63J-1-504;
259          (c) be of good moral character;
260          (d) if the applicant is applying to participate in the Interstate Medical Licensure
261     Compact under Chapter 67b, Interstate Medical Licensure Compact, consent to a criminal
262     background check in accordance with Section 58-68-302.1 and any requirements established by
263     rule made in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
264          (e) provide satisfactory documentation of having successfully completed a program of
265     professional education preparing an individual as an osteopathic physician and surgeon, as
266     evidenced by:
267          (i) having received an earned degree of doctor of osteopathic medicine from an AOA
268     approved medical school or college; or
269          (ii) submitting a current certification by the Educational Commission for Foreign
270     Medical Graduates or any successor organization approved by the division in collaboration
271     with the board, if the applicant is graduated from an osteopathic medical school or college
272     located outside of the United States or its territories which at the time of the applicant's
273     graduation, met criteria for accreditation by the AOA;
274          (f) satisfy the division and board that the applicant:
275          (i) has successfully completed 24 months of progressive resident training in an
276     ACGME or AOA approved program after receiving a degree of doctor of osteopathic medicine
277     required under Subsection (1)(e); or
278          (ii) (A) has successfully completed 12 months of resident training in an ACGME or
279     AOA approved program after receiving a degree of doctor of osteopathic medicine as required
280     under Subsection (1)(e);
281          (B) has been accepted in and is successfully participating in progressive resident
282     training in an ACGME or AOA approved program within Utah, in the applicant's second or
283     third year of postgraduate training; and
284          (C) has agreed to surrender to the division the applicant's license as an osteopathic
285     physician and surgeon without any proceedings under Title 63G, Chapter 4, Administrative
286     Procedures Act, and has agreed the applicant's license as an osteopathic physician and surgeon
287     will be automatically revoked by the division if the applicant fails to continue in good standing
288     in an ACGME or AOA approved progressive resident training program within the state;
289          (g) pass the licensing examination sequence required by division rule, as made in
290     collaboration with the board;
291          (h) be able to read, write, speak, understand, and be understood in the English language
292     and demonstrate proficiency to the satisfaction of the board, if requested by the board;
293          (i) meet with the board and representatives of the division, if requested for the purpose
294     of evaluating the applicant's qualifications for licensure;
295          (j) designate:
296          (i) a contact person for access to medical records in accordance with the federal Health
297     Insurance Portability and Accountability Act; and
298          (ii) an alternate contact person for access to medical records, in the event the original
299     contact person is unable or unwilling to serve as the contact person for access to medical
300     records; and
301          (k) establish a method for notifying patients of the identity and location of the contact
302     person and alternate contact person, if the applicant will practice in a location with no other
303     persons licensed under this chapter.
304          (2) An applicant for licensure as an osteopathic physician and surgeon by endorsement
305     who is currently licensed to practice osteopathic medicine in any state other than Utah, a
306     district or territory of the United States, or Canada shall:
307          (a) be currently licensed with a full unrestricted license in good standing in any state,
308     district or territory of the United States, or Canada;
309          (b) have been actively engaged in the legal practice of osteopathic medicine in any
310     state, district or territory of the United States, or Canada for not less than 6,000 hours during
311     the five years immediately preceding the day on which the applicant applied for licensure in
312     Utah;
313          (c) comply with the requirements for licensure under Subsections (1)(a) through (e),
314     (1)(f)(i), and (1)(h) through (k);
315          (d) have passed the licensing examination sequence required in Subsection (1)(g) or
316     another medical licensing examination sequence in another state, district or territory of the
317     United States, or Canada that the division in collaboration with the board by rulemaking
318     determines is equivalent to its own required examination;
319          (e) not have any investigation or action pending against any health care license of the
320     applicant, not have a health care license that was suspended or revoked in any state, district or
321     territory of the United States, or Canada, and not have surrendered a health care license in lieu
322     of a disciplinary action, unless:
323          (i) the license was subsequently reinstated as a full unrestricted license in good
324     standing; or
325          (ii) the division in collaboration with the board determines, after full disclosure by the
326     applicant, that:
327          (A) the conduct has been corrected, monitored, and resolved; or
328          (B) a mitigating circumstance exists that prevents its resolution, and the division in
329     collaboration with the board is satisfied that, but for the mitigating circumstance, the license
330     would be reinstated;
331          (f) submit to a records review, a practice review history, and physical and
332     psychological assessments, if requested by the division in collaboration with the board; and
333          (g) produce evidence that the applicant meets the requirements of this Subsection (2) to
334     the satisfaction of the division in collaboration with the board.
335          (3) An applicant for licensure by endorsement may engage in the practice of medicine
336     under a temporary license while the applicant's application for licensure is being processed by
337     the division, provided:
338          (a) the applicant submits a complete application required for temporary licensure to the
339     division;
340          (b) the applicant submits a written document to the division from:
341          (i) a health care facility licensed under Title 26, Chapter 21, Health Care Facility
342     Licensing and Inspection Act, stating that the applicant is practicing under the:
343          (A) invitation of the health care facility; and
344          (B) the general supervision of a physician practicing at the health care facility; or
345          (ii) two individuals licensed under this chapter, whose license is in good standing and
346     who practice in the same clinical location, both stating that:
347          (A) the applicant is practicing under the invitation and general supervision of the
348     individual; and
349          (B) the applicant will practice at the same clinical location as the individual;
350          (c) the applicant submits a signed certification to the division that the applicant meets
351     the requirements of Subsection (2);
352          (d) the applicant does not engage in the practice of medicine until the division has
353     issued a temporary license;
354          (e) the temporary license is only issued for and may not be extended or renewed
355     beyond the duration of one year from issuance; and
356          (f) the temporary license expires immediately and prior to the expiration of one year
357     from issuance, upon notification from the division that the applicant's application for licensure
358     by endorsement is denied.
359          (4) The division shall issue a temporary license under Subsection (3) within 15
360     business days after the applicant satisfies the requirements of Subsection (3).
361          (5) The division may not require :
362          (a) a post-residency board certification[.]; or
363          (b) a cognitive test when the physician reaches a specified age[, unless the test reflects
364     the standards described in Subsections 58-67-302(5)(b)(i) through (x)].