1     
ACUPUNCTURIST LIABILITY AMENDMENTS

2     
2022 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Luz Escamilla

5     
House Sponsor: Robert M. Spendlove

6     

7     LONG TITLE
8     Committee Note:
9          The Health and Human Services Interim Committee recommended this bill.
10               Legislative Vote:     14 voting for     0 voting against     4 absent
11     General Description:
12          This bill amends the Health Care Providers Immunity from Liability Act and the
13     Retired Volunteer Health Care Practitioner Act.
14     Highlighted Provisions:
15          This bill:
16          ▸     adds licensed acupunturists to those health care professionals who have limited
17     immunity under certain circumstances for providing volunteer services; and
18          ▸     adds licensed acupuncturist to the definition of a health care practitioner under the
19     Retired Volunteer Health Care Practitioner Act.
20     Money Appropriated in this Bill:
21          None
22     Other Special Clauses:
23          None
24     Utah Code Sections Affected:
25     AMENDS:
26          58-13-2, as last amended by Laws of Utah 2013, Chapter 44
27          58-13-3, as last amended by Laws of Utah 2016, Chapters 108 and 238

28          58-81-102, as last amended by Laws of Utah 2016, Chapter 238
29     

30     Be it enacted by the Legislature of the state of Utah:
31          Section 1. Section 58-13-2 is amended to read:
32          58-13-2. Emergency care rendered by licensee.
33          (1) A person licensed under Title 58, Occupations and Professions, to practice as any
34     of the following health care professionals, who is under no legal duty to respond, and who in
35     good faith renders emergency care at the scene of an emergency gratuitously and in good faith,
36     is not liable for any civil damages as a result of any acts or omissions by the person in
37     rendering the emergency care:
38          (a) osteopathic physician;
39          (b) physician and surgeon;
40          (c) naturopathic physician;
41          (d) dentist or dental hygienist;
42          (e) chiropractic physician;
43          (f) physician assistant;
44          (g) optometrist;
45          (h) nurse licensed under Section 58-31b-301 or 58-31d-102;
46          (i) podiatrist;
47          (j) certified nurse midwife;
48          (k) respiratory care practitioner;
49          (l) pharmacist, pharmacy technician, and pharmacy intern;
50          (m) direct-entry midwife licensed under Section 58-77-301; [or]
51          (n) veterinarian[.]; or
52          (o) acupuncturist licensed under Chapter 72, Acupuncture Licensing Act.
53          (2) This Subsection (2) applies to a health care professional:
54          (a) (i) described in Subsection (1); and
55          (ii) who is under no legal duty to respond to the circumstances described in Subsection
56     (3);
57          (b) who is:
58          (i) (A) activated as a member of a medical reserve corps as described in Section

59     26A-1-126 during the time of an emergency or declaration for public health related activities as
60     provided in Subsection 26A-1-126(2); or
61          (B) participating in training to prepare the medical reserve corps to respond to a
62     declaration of an emergency or request for public health related activities pursuant to
63     Subsection 26A-1-126(2);
64          (ii) acting within the scope of:
65          (A) the health care professional's license; or
66          (B) practice as modified under Subsection 58-1-307(4) or Section 26A-1-126; and
67          (iii) acting in good faith without compensation or remuneration as defined in
68     Subsection 58-13-3(2); or
69          (c) who is acting as a volunteer health practitioner under Title 26, Chapter 49, Uniform
70     Emergency Volunteer Health Practitioners Act.
71          (3) A health care professional described in Subsection (2) is not liable for any civil
72     damages as a result of any acts or omissions by the health care professional in rendering care as
73     a result of:
74          (a) implementation of measures to control the causes of epidemic and communicable
75     diseases and other conditions significantly affecting the public health or necessary to protect
76     the public health as set out in Title 26A, Chapter 1, Local Health Departments;
77          (b) investigating and controlling suspected bioterrorism and disease as set out in Title
78     26, Chapter 23b, Detection of Public Health Emergencies Act; and
79          (c) responding to a national, state, or local emergency, a public health emergency as
80     defined in Section 26-23b-102, or a declaration by the President of the United States or other
81     federal official requesting public health-related activities.
82          (4) The immunity in Subsection (3) is in addition to any immunity or protection in state
83     or federal law that may apply.
84          (5) For purposes of Subsection (2)(b)(iii) remuneration does not include:
85          (a) food supplied to the volunteer;
86          (b) clothing supplied to the volunteer to help identify the volunteer during the time of
87     the emergency; or
88          (c) other similar support for the volunteer.
89          Section 2. Section 58-13-3 is amended to read:

90          58-13-3. Qualified immunity -- Health professionals -- Charity care.
91          (1) (a) (i) The Legislature finds many residents of this state do not receive medical care
92     and preventive health care because they lack health insurance or because of financial
93     difficulties or cost.
94          (ii) The Legislature also finds that many physicians, charity health care facilities, and
95     other health care professionals in this state would be willing to volunteer medical and allied
96     services without compensation if they were not subject to the high exposure of liability
97     connected with providing these services.
98          (b) The Legislature therefore declares that its intention in enacting this section is to
99     encourage the provision of uncompensated volunteer charity health care in exchange for a
100     limitation on liability for the health care facilities and health care professionals who provide
101     those volunteer services.
102          (2) As used in this section:
103          (a) "Continuing education requirement" means the requirement for hours of continuing
104     education, established by the division, with which a health care professional must comply to
105     renew the health care professional's license under the applicable chapter described in
106     Subsection (2)(c).
107          (b) "Health care facility" means any clinic or hospital, church, or organization whose
108     primary purpose is to sponsor, promote, or organize uncompensated health care services for
109     people unable to pay for health care services.
110          (c) "Health care professional" means a person licensed under:
111          (i) Chapter 5a, Podiatric Physician Licensing Act;
112          (ii) Chapter 16a, Utah Optometry Practice Act;
113          (iii) Chapter 17b, Pharmacy Practice Act;
114          (iv) Chapter 24b, Physical Therapy Practice Act;
115          (v) Chapter 31b, Nurse Practice Act;
116          (vi) Chapter 40, Recreational Therapy Practice Act;
117          (vii) Chapter 41, Speech-Language Pathology and Audiology Licensing Act;
118          (viii) Chapter 42a, Occupational Therapy Practice Act;
119          (ix) Chapter 44a, Nurse Midwife Practice Act;
120          (x) Chapter 49, Dietitian Certification Act;

121          (xi) Chapter 60, Mental Health Professional Practice Act;
122          (xii) Chapter 67, Utah Medical Practice Act;
123          (xiii) Chapter 68, Utah Osteopathic Medical Practice Act;
124          (xiv) Chapter 69, Dentist and Dental Hygienist Practice Act;
125          (xv) Chapter 70a, Utah Physician Assistant Act;
126          (xvi) Chapter 71, Naturopathic Physician Practice Act; [and]
127          (xvii) Chapter 72, Acupuncture Licensing Act; and
128          (xviii) Chapter 73, Chiropractic Physician Practice Act.
129          (d) "Remuneration or compensation":
130          (i) (A) means direct or indirect receipt of any payment by a health care professional or
131     health care facility on behalf of the patient, including payment or reimbursement under
132     Medicare or Medicaid, or under the state program for the medically indigent on behalf of the
133     patient; and
134          (B) compensation, salary, or reimbursement to the health care professional from any
135     source for the health care professional's services or time in volunteering to provide
136     uncompensated health care; and
137          (ii) does not mean:
138          (A) any grant or donation to the health care facility used to offset direct costs
139     associated with providing the uncompensated health care such as:
140          (I) medical supplies;
141          (II) drugs; or
142          (III) a charitable donation that is restricted for charitable services at the health care
143     facility; or
144          (B) incidental reimbursements to the volunteer such as:
145          (I) food supplied to the volunteer;
146          (II) clothing supplied to the volunteer to help identify the volunteer during the time of
147     volunteer services;
148          (III) mileage reimbursement to the volunteer; or
149          (IV) other similar support to the volunteer.
150          (3) A health care professional who provides health care treatment at or on behalf of a
151     health care facility is not liable in a medical malpractice action if:

152          (a) the treatment was within the scope of the health care professional's license under
153     this title;
154          (b) neither the health care professional nor the health care facility received
155     compensation or remuneration for the treatment;
156          (c) the acts or omissions of the health care professional were not grossly negligent or
157     willful and wanton; and
158          (d) prior to rendering services:
159          (i) the health care professional disclosed in writing to the patient, or if a minor, to the
160     patient's parent or legal guardian, that the health care professional is providing the services
161     without receiving remuneration or compensation; and
162          (ii) the patient consented in writing to waive any right to sue for professional
163     negligence except for acts or omissions which are grossly negligent or are willful and wanton.
164          (4) A health care facility which sponsors, promotes, or organizes the uncompensated
165     care is not liable in a medical malpractice action for acts and omissions if:
166          (a) the health care facility meets the requirements in Subsection (3)(b);
167          (b) the acts and omissions of the health care facility were not grossly negligent or
168     willful and wanton; and
169          (c) the health care facility has posted, in a conspicuous place, a notice that in
170     accordance with this section the health care facility is not liable for any civil damages for acts
171     or omissions except for those acts or omissions that are grossly negligent or are willful and
172     wanton.
173          (5) A health care professional who provides health care treatment at a federally
174     qualified health center, as defined in Subsection 1905(1)(2)(b) of the Social Security Act, or an
175     Indian health clinic or Urban Indian Health Center, as defined in Title V of the Indian Health
176     Care Improvement Act, is not liable in a medical malpractice action if:
177          (a) the treatment was within the scope of the health care professional's license under
178     this title;
179          (b) the health care professional:
180          (i) does not receive compensation or remuneration for treatment provided to any
181     patient that the provider treats at the federally qualified health center, the Indian health clinic,
182     or the Urban Indian Health Center; and

183          (ii) is not eligible to be included in coverage under the Federal Tort Claims Act for the
184     treatment provided at the federally qualified health center, the Indian health clinic, or the Urban
185     Indian Health Center;
186          (c) the acts or omissions of the health care professional were not grossly negligent or
187     willful and wanton; and
188          (d) prior to rendering services:
189          (i) the health care professional disclosed in writing to the patient, or if a minor, to the
190     patient's parent or legal guardian, that the health care professional is providing the services
191     without receiving remuneration or compensation; and
192          (ii) the patient consented in writing to waive any right to sue for professional
193     negligence except for acts or omissions that are grossly negligent or are willful and wanton.
194          (6) Immunity from liability under this section does not extend to the use of general
195     anesthesia or care that requires an overnight stay in a general acute or specialty hospital
196     licensed under Title 26, Chapter 21, Health Care Facility Licensing and Inspection Act.
197          (7) The provisions of Subsection (5) apply to treatment provided by a healthcare
198     professional on or after May 13, 2014.
199          (8) A health care professional:
200          (a) may, in accordance with Subsection (8)(b), fulfill up to 15% of the health care
201     professional's continuing education requirement with hours the health care professional spends
202     providing health care treatment described in Subsection (3) or (5); and
203          (b) subject to Subsection (8)(a), earns one hour of the health care professional's
204     continuing education requirement for every four documented hours of volunteer health care
205     treatment.
206          Section 3. Section 58-81-102 is amended to read:
207          58-81-102. Definitions.
208          For purposes of this chapter:
209          (1) "Board" means the state licensing board created for each of the health care
210     practitioners included in Subsection (2).
211          (2) "Health care practitioner" includes:
212          (a) a podiatrist licensed under Chapter 5a, Podiatric Physician Licensing Act;
213          (b) a physical therapist licensed under Chapter 24b, Physical Therapy Practice Act;

214          (c) a nurse or advanced practice registered nurse licensed under Chapter 31b, Nurse
215     Practice Act;
216          (d) a recreational therapist licensed under Chapter 40, Recreational Therapy Practice
217     Act;
218          (e) an occupational therapist licensed under Chapter 42a, Occupational Therapy
219     Practice Act;
220          (f) a nurse midwife licensed under Chapter 44a, Nurse Midwife Practice Act;
221          (g) a mental health professional licensed under Chapter 60, Mental Health Professional
222     Practice Act;
223          (h) a psychologist licensed under Chapter 61, Psychologist Licensing Act;
224          (i) a physician licensed under Chapter 67, Utah Medical Practice Act;
225          (j) an osteopath licensed under Chapter 68, Utah Osteopathic Medical Practice Act;
226          (k) a dentist or dental hygienist licensed under Chapter 69, Dentist and Dental
227     Hygienist Practice Act;
228          (l) a physician assistant licensed under Chapter 70a, Utah Physician Assistant Act;
229          (m) a pharmacist licensed under Chapter 17b, Pharmacy Practice Act; [or]
230          (n) an optometrist licensed under Chapter 16a, Utah Optometry Practice Act[.]; or
231          (o) an acupuncturist licensed under Chapter 72, Acupuncture Licensing Act.
232          (3) "Qualified location" means:
233          (a) a clinic, hospital, church, or organization whose primary purpose is to sponsor,
234     promote, or organize uncompensated health care services for people unable to pay for health
235     care services; and
236          (b) is a location approved by the division.
237          (4) "Remuneration or compensation" means the same as that term is defined in Section
238     58-13-3.
239          (5) "Supervising professional" means a health care practitioner:
240          (a) who has an active license in the state in good standing;
241          (b) with a scope of practice that is appropriate for supervising the applicant as
242     determined by the division and board; and
243          (c) who is practicing at the qualified location.
244          (6) "Supervision" means:

245          (a) the level of supervision required for:
246          (i) a social service worker in Chapter 60, Mental Health Professional Practice Act;
247          (ii) a dental hygienist in Chapter 69, Dentist and Dental Hygienist Practice Act;
248          (iii) a recreational therapist technician in Chapter 40, Recreational Therapy Practice
249     Act; and
250          (iv) an occupational technician assistant in Chapter 42a, Occupational Therapy Practice
251     Act; and
252          (b) for the health care practitioners listed in Subsections (2)(a) through (m) and not
253     included in Subsection (5)(a):
254          (i) entering into a delegation of service agreement with a supervising professional in
255     accordance with Subsection 58-81-103(2);
256          (ii) having the ability to contact the supervising professional during the time the
257     volunteer is providing volunteer services; and
258          (iii) for every 40 hours of volunteer service hours, meeting with the supervising
259     professional.
260          (7) "Volunteer" means the individual health care practitioner:
261          (a) will devote the health care practitioner's practice exclusively to providing care to
262     the needy and indigent in the state:
263          (i) within:
264          (A) the practitioner's scope of practice; and
265          (B) the delegation of service agreement between the volunteer and the supervising
266     professional; and
267          (ii) at a qualified location;
268          (b) will agree to donate professional services in a qualified location; and
269          (c) will not receive remuneration or compensation for the health care practitioner's
270     services.