Representative Douglas R. Welton proposes the following substitute bill:


1     
NURSE PRACTICE ACT AMENDMENTS

2     
2021 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Douglas R. Welton

5     
Senate Sponsor: Curtis S. Bramble

6     Cosponsors:
7     Kera Birkeland
8     Walt Brooks
9     Jefferson S. Burton
10     Jennifer Dailey-Provost
11     James A. Dunnigan
12     Marsha Judkins
Steven J. Lund
Phil Lyman
A. Cory Maloy
Carol Spackman Moss
Candice B. Pierucci
Paul Ray
Travis M. Seegmiller
V. Lowry Snow
Andrew Stoddard
Norman K. Thurston
Christine F. Watkins
Mike Winder
13     

14     LONG TITLE
15     General Description:
16          This bill modifies the Nurse Practice Act.
17     Highlighted Provisions:
18          This bill:
19          ▸     modifies the requirements a nurse practitioner must meet before prescribing a
20     Schedule II controlled substance; and
21          ▸     makes technical changes.
22     Money Appropriated in this Bill:
23          None
24     Other Special Clauses:
25          None
26     Utah Code Sections Affected:
27     AMENDS:
28          58-31b-102, as last amended by Laws of Utah 2020, Chapter 314
29          58-31b-502, as last amended by Laws of Utah 2020, Fifth Special Session, Chapter 4
30          58-31b-803, as last amended by Laws of Utah 2020, Chapter 339
31          62A-4a-213, as last amended by Laws of Utah 2019, Chapter 257
32     

33     Be it enacted by the Legislature of the state of Utah:
34          Section 1. Section 58-31b-102 is amended to read:
35          58-31b-102. Definitions.
36          In addition to the definitions in Section 58-1-102, as used in this chapter:
37          (1) "Administrative penalty" means a monetary fine or citation imposed by the division
38     for acts or omissions determined to be unprofessional or unlawful conduct in accordance with a
39     fine schedule established by division rule made in accordance with Title 63G, Chapter 3, Utah
40     Administrative Rulemaking Act, and as a result of an adjudicative proceeding conducted in
41     accordance with Title 63G, Chapter 4, Administrative Procedures Act.
42          (2) "Applicant" means an individual who applies for licensure or certification under
43     this chapter by submitting a completed application for licensure or certification and the
44     required fees to the department.
45          (3) "Approved education program" means a nursing education program that is
46     accredited by an accrediting body for nursing education that is approved by the United States
47     Department of Education.
48          (4) "Board" means the Board of Nursing created in Section 58-31b-201.
49          [(5) "Consultation and referral plan" means a written plan jointly developed by an
50     advanced practice registered nurse and, except as provided in Subsection 58-31b-803(4), a
51     consulting physician that permits the advanced practice registered nurse to prescribe Schedule
52     II controlled substances in consultation with the consulting physician.]
53          [(6) "Consulting physician" means a physician and surgeon or osteopathic physician
54     and surgeon licensed in accordance with this title who has agreed to consult with an advanced
55     practice registered nurse with a controlled substance license, a DEA registration number, and
56     who will be prescribing Schedule II controlled substances.]
57          [(7)] (5) "Diagnosis" means the identification of and discrimination between physical
58     and psychosocial signs and symptoms essential to the effective execution and management of
59     health care.
60          [(8)] (6) "Examinee" means an individual who applies to take or does take any
61     examination required under this chapter for licensure.
62          [(9)] (7) "Licensee" means an individual who is licensed or certified under this chapter.
63          [(10)] (8) "Long-term care facility" means any of the following facilities licensed by
64     the Department of Health pursuant to Title 26, Chapter 21, Health Care Facility Licensing and
65     Inspection Act:
66          (a) a nursing care facility;
67          (b) a small health care facility;
68          (c) an intermediate care facility for people with an intellectual disability;
69          (d) an assisted living facility Type I or II; or
70          (e) a designated swing bed unit in a general hospital.
71          [(11)] (9) "Medication aide certified" means a certified nurse aide who:
72          (a) has a minimum of 2,000 hours experience working as a certified nurse aide;
73          (b) has received a minimum of 60 hours of classroom and 40 hours of practical training
74     that is approved by the division in collaboration with the board, in administering routine
75     medications to patients or residents of long-term care facilities; and
76          (c) is certified by the division as a medication aide certified.
77          [(12) "Pain clinic" means the same as that term is defined in Section 58-1-102.]
78          [(13)] (10) (a) "Practice as a medication aide certified" means the limited practice of
79     nursing under the supervision, as defined by the division by rule made in accordance with Title
80     63G, Chapter 3, Utah Administrative Rulemaking Act, of a licensed nurse, involving routine
81     patient care that requires minimal or limited specialized or general knowledge, judgment, and
82     skill, to an individual who:
83          (i) is ill, injured, infirm, has a physical, mental, developmental, or intellectual
84     disability; and
85          (ii) is in a regulated long-term care facility.
86          (b) "Practice as a medication aide certified":
87          (i) includes:
88          (A) providing direct personal assistance or care; and
89          (B) administering routine medications to patients in accordance with a formulary and
90     protocols to be defined by the division by rule made in accordance with Title 63G, Chapter 3,
91     Utah Administrative Rulemaking Act; and
92          (ii) does not include assisting a resident of an assisted living facility, a long term care
93     facility, or an intermediate care facility for people with an intellectual disability to self
94     administer a medication, as regulated by the Department of Health by rule made in accordance
95     with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
96          [(14)] (11) "Practice of advanced practice registered nursing" means the practice of
97     nursing within the generally recognized scope and standards of advanced practice registered
98     nursing as defined by rule and consistent with professionally recognized preparation and
99     education standards of an advanced practice registered nurse by a person licensed under this
100     chapter as an advanced practice registered nurse. "Practice of advanced practice registered
101     nursing" includes:
102          (a) maintenance and promotion of health and prevention of disease;
103          (b) diagnosis, treatment, correction, consultation, and referral [for common health
104     problems];
105          (c) prescription or administration of prescription drugs or devices including:
106          (i) local anesthesia;
107          (ii) Schedule III-V controlled substances; and
108          (iii) Subject to Section 58-31b-803, Schedule II controlled substances; or
109          (d) the provision of preoperative, intraoperative, and postoperative anesthesia care and
110     related services upon the request of a licensed health care professional by an advanced practice
111     registered nurse specializing as a certified registered nurse anesthetist, including:
112          (i) preanesthesia preparation and evaluation including:
113          (A) performing a preanesthetic assessment of the patient;
114          (B) ordering and evaluating appropriate lab and other studies to determine the health of
115     the patient; and
116          (C) selecting, ordering, or administering appropriate medications;
117          (ii) anesthesia induction, maintenance, and emergence, including:
118          (A) selecting and initiating the planned anesthetic technique;
119          (B) selecting and administering anesthetics and adjunct drugs and fluids; and
120          (C) administering general, regional, and local anesthesia;
121          (iii) postanesthesia follow-up care, including:
122          (A) evaluating the patient's response to anesthesia and implementing corrective
123     actions; and
124          (B) selecting, ordering, or administering the medications and studies listed in this
125     Subsection [(14)] (11)(d); and
126          (iv) other related services within the scope of practice of a certified registered nurse
127     anesthetist, including:
128          (A) emergency airway management;
129          (B) advanced cardiac life support; and
130          (C) the establishment of peripheral, central, and arterial invasive lines; and
131          (v) for purposes of this Subsection [(14)] (11)(d), "upon the request of a licensed health
132     care professional":
133          (A) means a health care professional practicing within the scope of the health care
134     professional's license, requests anesthesia services for a specific patient; and
135          (B) does not require an advanced practice registered nurse specializing as a certified
136     registered nurse anesthetist to [enter into a consultation and referral plan or] obtain additional
137     authority to select, administer, or provide preoperative, intraoperative, or postoperative
138     anesthesia care and services.
139          [(15)] (12) "Practice of nursing" means assisting individuals or groups to maintain or
140     attain optimal health, implementing a strategy of care to accomplish defined goals and
141     evaluating responses to care and treatment, and requires substantial specialized or general
142     knowledge, judgment, and skill based upon principles of the biological, physical, behavioral,
143     and social sciences. "Practice of nursing" includes:
144          (a) initiating and maintaining comfort measures;
145          (b) promoting and supporting human functions and responses;
146          (c) establishing an environment conducive to well-being;
147          (d) providing health counseling and teaching;
148          (e) collaborating with health care professionals on aspects of the health care regimen;
149          (f) performing delegated procedures only within the education, knowledge, judgment,
150     and skill of the licensee;
151          (g) delegating nursing tasks that may be performed by others, including an unlicensed
152     assistive personnel; and
153          (h) supervising an individual to whom a task is delegated under Subsection [(15)]
154     (12)(g) as the individual performs the task.
155          [(16)] (13) "Practice of practical nursing" means the performance of nursing acts in the
156     generally recognized scope of practice of licensed practical nurses as defined by division rule
157     made in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and as
158     provided in this Subsection [(16)] (13) by an individual licensed under this chapter as a
159     licensed practical nurse and under the direction of a registered nurse, licensed physician, or
160     other specified health care professional as defined by division rule made in accordance with
161     Title 63G, Chapter 3, Utah Administrative Rulemaking Act. Practical nursing acts include:
162          (a) contributing to the assessment of the health status of individuals and groups;
163          (b) participating in the development and modification of the strategy of care;
164          (c) implementing appropriate aspects of the strategy of care;
165          (d) maintaining safe and effective nursing care rendered to a patient directly or
166     indirectly; and
167          (e) participating in the evaluation of responses to interventions.
168          [(17)] (14) "Practice of registered nursing" means performing acts of nursing as
169     provided in this Subsection [(17)] (14) by an individual licensed under this chapter as a
170     registered nurse within the generally recognized scope of practice of registered nurses as
171     defined by division rule made in accordance with Title 63G, Chapter 3, Utah Administrative
172     Rulemaking Act. Registered nursing acts include:
173          (a) assessing the health status of individuals and groups;
174          (b) identifying health care needs;
175          (c) establishing goals to meet identified health care needs;
176          (d) planning a strategy of care;
177          (e) prescribing nursing interventions to implement the strategy of care;
178          (f) implementing the strategy of care;
179          (g) maintaining safe and effective nursing care that is rendered to a patient directly or
180     indirectly;
181          (h) evaluating responses to interventions;
182          (i) teaching the theory and practice of nursing; and
183          (j) managing and supervising the practice of nursing.
184          [(18)] (15) "Routine medications":
185          (a) means established medications administered to a medically stable individual as
186     determined by a licensed health care practitioner or in consultation with a licensed medical
187     practitioner; and
188          (b) is limited to medications that are administered by the following routes:
189          (i) oral;
190          (ii) sublingual;
191          (iii) buccal;
192          (iv) eye;
193          (v) ear;
194          (vi) nasal;
195          (vii) rectal;
196          (viii) vaginal;
197          (ix) skin ointments, topical including patches and transdermal;
198          (x) premeasured medication delivered by aerosol/nebulizer; and
199          (xi) medications delivered by metered hand-held inhalers.
200          [(19)] (16) "Unlawful conduct" means the same as that term is defined in Sections
201     58-1-501 and 58-31b-501.
202          [(20)] (17) "Unlicensed assistive personnel" means any unlicensed individual,
203     regardless of title, who is delegated a task by a licensed nurse as permitted by division rule
204     made in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and the
205     standards of the profession.
206          [(21)] (18) "Unprofessional conduct" means the same as that term is defined in
207     Sections 58-1-501 and 58-31b-502 and as may be further defined by division rule made in
208     accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
209          Section 2. Section 58-31b-502 is amended to read:
210          58-31b-502. Unprofessional conduct.
211          (1) "Unprofessional conduct" includes:
212          (a) failure to safeguard a patient's right to privacy as to the patient's person, condition,
213     diagnosis, personal effects, or any other matter about which the licensee is privileged to know
214     because of the licensee's or person with a certification's position or practice as a nurse or
215     practice as a medication aide certified;
216          (b) failure to provide nursing service or service as a medication aide certified in a
217     manner that demonstrates respect for the patient's human dignity and unique personal character
218     and needs without regard to the patient's race, religion, ethnic background, socioeconomic
219     status, age, sex, or the nature of the patient's health problem;
220          (c) engaging in sexual relations with a patient during any:
221          (i) period when a generally recognized professional relationship exists between the
222     person licensed or certified under this chapter and the patient; or
223          (ii) extended period when a patient has reasonable cause to believe a professional
224     relationship exists between the person licensed or certified under the provisions of this chapter
225     and the patient;
226          (d) (i) as a result of any circumstance under Subsection (1)(c), exploiting or using
227     information about a patient or exploiting the licensee's or the person with a certification's
228     professional relationship between the licensee or holder of a certification under this chapter and
229     the patient; or
230          (ii) exploiting the patient by use of the licensee's or person with a certification's
231     knowledge of the patient obtained while acting as a nurse or a medication aide certified;
232          (e) unlawfully obtaining, possessing, or using any prescription drug or illicit drug;
233          (f) unauthorized taking or personal use of nursing supplies from an employer;
234          (g) unauthorized taking or personal use of a patient's personal property;
235          (h) unlawful or inappropriate delegation of nursing care;
236          (i) failure to exercise appropriate supervision of persons providing patient care services
237     under supervision of the licensed nurse;
238          (j) employing or aiding and abetting the employment of an unqualified or unlicensed
239     person to practice as a nurse;
240          (k) failure to file or record any medical report as required by law, impeding or
241     obstructing the filing or recording of such a report, or inducing another to fail to file or record
242     such a report;
243          (l) breach of a statutory, common law, regulatory, or ethical requirement of
244     confidentiality with respect to a person who is a patient, unless ordered by a court;
245          (m) failure to pay a penalty imposed by the division;
246          (n) prescribing a Schedule II controlled substance without complying with the
247     requirements in Section 58-31b-803, if applicable;
248          (o) violating Section 58-31b-801;
249          (p) violating the dispensing requirements of Section 58-17b-309 or Chapter 17b, Part
250     8, Dispensing Medical Practitioner and Dispensing Medical Practitioner Clinic Pharmacy, if
251     applicable; or
252          [(q) establishing or operating a pain clinic without a consultation and referral plan for
253     Schedule II or III controlled substances; or]
254          [(r)] (q) falsely making an entry in, or altering, a medical record with the intent to
255     conceal:
256          (i) a wrongful or negligent act or omission of an individual licensed under this chapter
257     or an individual under the direction or control of an individual licensed under this chapter; or
258          (ii) conduct described in Subsections (1)(a) through [(q)] (o) or Subsection
259     58-1-501(1).
260          (2) "Unprofessional conduct" does not include, in accordance with Title 26, Chapter
261     61a, Utah Medical Cannabis Act, when registered as a qualified medical provider, as that term
262     is defined in Section 26-61a-102, recommending the use of medical cannabis.
263          (3) Notwithstanding Subsection (2), the division, in consultation with the board and in
264     accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, shall define
265     unprofessional conduct for an advanced practice registered nurse described in Subsection (2).
266          Section 3. Section 58-31b-803 is amended to read:
267          58-31b-803. Limitations on prescriptive authority for advanced practice
268     registered nurses.
269          (1) This section does not apply to an advanced practice registered nurse specializing as
270     a certified registered nurse anesthetist under Subsection 58-31b-102(14)(d).
271          (2) Except as provided in [Subsections (3) and 58-31b-502(1)(q)] Subsection (3), an
272     advanced practice registered nurse may prescribe or administer a Schedule II controlled
273     substance [without a consultation and referral plan].
274          (3) An advanced practice registered nurse described in Subsection (4) may not
275     prescribe or administer a Schedule II controlled substance unless the advanced practice
276     registered nurse [prescribes or administers Schedule II controlled substances in accordance
277     with a consultation and referral plan.]:
278          (a) receives a board certification from a nationally recognized organization;
279          (b) completes at least 30 hours of instruction, or the equivalent number of credit hours,
280     pertaining to advanced pharmacology during a graduate education program;
281          (c) when obtaining licensure with the division, demonstrates completion of at least
282     seven hours of continuing education pertaining to prescribing opioids; and
283          (d) participates in a prescribing mentorship under which the advanced practice
284     registered nurse:
285          (i) is mentored by:
286          (A) a physician licensed in accordance with this title; or
287          (B) an advance practice registered nurse who has been licensed at least three years; and
288          (ii) periodically provides the mentor described in Subsection (4)(d)(i) timesheets that,
289     in total, demonstrate 1,000 hours of clinical experience.
290          (4) Subsection (3) applies to an advanced practice registered nurse who:
291          (a) [(i)] is engaged in independent solo practice; and
292          [(ii) (A)] (b) (i) has been licensed as an advanced practice registered nurse for less than
293     one year; or
294          [(B)] (ii) has less than 2,000 hours of experience practicing as a licensed advanced
295     practice registered nurse[; or].
296          [(b) owns or operates a pain clinic.]
297          [(5) Notwithstanding Subsection 58-31b-102(5), an advanced practice registered nurse
298     with at least three years of experience as a licensed advanced practice registered nurse may
299     supervise a consultation and referral plan for an advanced practice registered nurse described in
300     Subsection (4)(a).]
301          Section 4. Section 62A-4a-213 is amended to read:
302          62A-4a-213. Psychotropic medication oversight pilot program.
303          (1) As used in this section, "psychotropic medication" means medication prescribed to
304     affect or alter thought processes, mood, or behavior, including antipsychotic, antidepressant,
305     anxiolytic, or behavior medication.
306          (2) The division shall, through contract with the Department of Health, establish and
307     operate a psychotropic medication oversight pilot program for children in foster care to ensure
308     that foster children are being prescribed psychotropic medication consistent with their needs.
309          (3) The division shall establish an oversight team to manage the psychotropic
310     medication oversight program, composed of at least the following individuals:
311          (a) an "advanced practice registered nurse," as defined in [Subsection] Section
312     58-31b-102[(14)], employed by the Department of Health; and
313          (b) a child psychiatrist.
314          (4) The oversight team shall monitor foster children:
315          (a) six years old or younger who are being prescribed one or more psychotropic
316     medications; and
317          (b) seven years old or older who are being prescribed two or more psychotropic
318     medications.
319          (5) The oversight team shall, upon request, be given information or records related to
320     the foster child's health care history, including psychotropic medication history and mental and
321     behavioral health history, from:
322          (a) the foster child's current or past caseworker;
323          (b) the foster child; or
324          (c) the foster child's:
325          (i) current or past health care provider;
326          (ii) natural parents; or
327          (iii) foster parents.
328          (6) The oversight team may review and monitor the following information about a
329     foster child:
330          (a) the foster child's history;
331          (b) the foster child's health care, including psychotropic medication history and mental
332     or behavioral health history;
333          (c) whether there are less invasive treatment options available to meet the foster child's
334     needs;
335          (d) the dosage or dosage range and appropriateness of the foster child's psychotropic
336     medication;
337          (e) the short-term or long-term risks associated with the use of the foster child's
338     psychotropic medication; or
339          (f) the reported benefits of the foster child's psychotropic medication.
340          (7) (a) The oversight team may make recommendations to the foster child's health care
341     providers concerning the foster child's psychotropic medication or the foster child's mental or
342     behavioral health.
343          (b) The oversight team shall provide the recommendations made in Subsection (7)(a)
344     to the foster child's parent or guardian after discussing the recommendations with the foster
345     child's current health care providers.
346          (8) The division may adopt administrative rules in accordance with Title 63G, Chapter
347     3, Utah Administrative Rulemaking Act, necessary to administer this section.
348          (9) The division shall report to the Child Welfare Legislative Oversight Panel
349     regarding the psychotropic medication oversight pilot program by October 1 of each even
350     numbered year.