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7 LONG TITLE
8 General Description:
9 This bill modifies a health care provider's liability under certain circumstances.
10 Highlighted Provisions:
11 This bill:
12 ▸ modifies the duty of care, under certain circumstances, for a health care provider
13 who deviates from medical norms or established practices;
14 ▸ prohibits the Division of Professional Licensing from sanctioning a health care
15 provider's license for deviating from medical norms or established practices under
16 certain circumstances;
17 ▸ allows a health care provider who deviates from medical norms or established
18 practices to advertise if certain criteria are met; and
19 ▸ makes technical changes.
20 Money Appropriated in this Bill:
21 None
22 Other Special Clauses:
23 None
24 Utah Code Sections Affected:
25 AMENDS:
26 58-1-501, as last amended by Laws of Utah 2020, Chapters 289, 339
27 58-17b-502, as last amended by Laws of Utah 2022, Chapter 465
28 ENACTS:
29 78B-3-428, Utah Code Annotated 1953
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31 Be it enacted by the Legislature of the state of Utah:
32 Section 1. Section 58-1-501 is amended to read:
33 58-1-501. Unlawful and unprofessional conduct.
34 (1) "Unlawful conduct" means conduct, by any person, that is defined as unlawful
35 under this title and includes:
36 (a) practicing or engaging in, representing oneself to be practicing or engaging in, or
37 attempting to practice or engage in any occupation or profession requiring licensure under this
38 title if the person is:
39 (i) not licensed to do so or not exempted from licensure under this title; or
40 (ii) restricted from doing so by a suspended, revoked, restricted, temporary,
41 probationary, or inactive license;
42 (b) (i) impersonating another licensee or practicing an occupation or profession under a
43 false or assumed name, except as permitted by law; or
44 (ii) for a licensee who has had a license under this title reinstated following disciplinary
45 action, practicing the same occupation or profession using a different name than the name used
46 before the disciplinary action, except as permitted by law and after notice to, and approval by,
47 the division;
48 (c) knowingly employing any other person to practice or engage in or attempt to
49 practice or engage in any occupation or profession licensed under this title if the employee is
50 not licensed to do so under this title;
51 (d) knowingly permitting the person's authority to practice or engage in any occupation
52 or profession licensed under this title to be used by another, except as permitted by law;
53 (e) obtaining a passing score on a licensure examination, applying for or obtaining a
54 license, or otherwise dealing with the division or a licensing board through the use of fraud,
55 forgery, or intentional deception, misrepresentation, misstatement, or omission;
56 (f) (i) issuing, or aiding and abetting in the issuance of, an order or prescription for a
57 drug or device to a person located in this state:
58 (A) without prescriptive authority conferred by a license issued under this title, or by
59 an exemption to licensure under this title; or
60 (B) with prescriptive authority conferred by an exception issued under this title or a
61 multistate practice privilege recognized under this title, if the prescription was issued without
62 first obtaining information, in the usual course of professional practice, that is sufficient to
63 establish a diagnosis, to identify underlying conditions, and to identify contraindications to the
64 proposed treatment; and
65 (ii) Subsection (1)(f)(i) does not apply to treatment rendered in an emergency, on-call
66 or cross coverage situation, provided that the person who issues the prescription has
67 prescriptive authority conferred by a license under this title, or is exempt from licensure under
68 this title; or
69 (g) aiding or abetting any other person to violate any statute, rule, or order regulating
70 an occupation or profession under this title.
71 (2) (a) "Unprofessional conduct" means conduct, by a licensee or applicant, that is
72 defined as unprofessional conduct under this title or under any rule adopted under this title and
73 includes:
74 [
75 under this title;
76 [
77 accepted professional or ethical standard applicable to an occupation or profession regulated
78 under this title;
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80 conviction, a plea of nolo contendere, or a plea of guilty or nolo contendere that is held in
81 abeyance pending the successful completion of probation with respect to a crime of moral
82 turpitude or any other crime that, when considered with the functions and duties of the
83 occupation or profession for which the license was issued or is to be issued, bears a substantial
84 relationship to the licensee's or applicant's ability to safely or competently practice the
85 occupation or profession;
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87 censure, diversion, probation, suspension, or revocation, by any other licensing or regulatory
88 authority having jurisdiction over the licensee or applicant in the same occupation or profession
89 if the conduct would, in this state, constitute grounds for denial of licensure or disciplinary
90 proceedings under Section 58-1-401;
91 [
92 similar chemicals, to the extent that the conduct does, or might reasonably be considered to,
93 impair the ability of the licensee or applicant to safely engage in the occupation or profession;
94 [
95 under this title despite being physically or mentally unfit to do so;
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97 under this title through gross incompetence, gross negligence, or a pattern of incompetency or
98 negligence;
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100 licensure under this title by any form of action or communication which is false, misleading,
101 deceptive, or fraudulent;
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103 under this title beyond the scope of the licensee's competency, abilities, or education;
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105 under this title beyond the scope of the licensee's license;
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107 through conduct connected with the licensee's practice under this title or otherwise facilitated
108 by the licensee's license;
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110 position that are defined by statute or rule;
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112 for a drug or device:
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114 practice, that is sufficient to establish a diagnosis, to identify conditions, and to identify
115 contraindications to the proposed treatment; or
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117 or a multi-state practice privilege recognized under this title, if the prescription was issued
118 without first obtaining information, in the usual course of professional practice, that is
119 sufficient to establish a diagnosis, to identify underlying conditions, and to identify
120 contraindications to the proposed treatment;
121 [
122 [
123 (b) "Unprofessional conduct" does not include:
124 (i) a health care provider, as defined in Section 78B-3-403 and who is licensed under
125 this title, deviating from medical norms or established practices if the conditions described in
126 Subsection (5) are met; and
127 (ii) notwithstanding Section 58-1-501.6, a health care provider advertising that the
128 health care provider deviates from medical norms or established practices, including the
129 maladies the health care provider treats, if the health care provider:
130 (A) does not guarantee any results regarding any health care service;
131 (B) fully discloses on the health care provider's website that the health care provider
132 deviates from medical norms or established practices with a conspicuous statement; and
133 (C) includes the health care provider's contact information on the website.
134 (3) Unless otherwise specified by statute or administrative rule, in a civil or
135 administrative proceeding commenced by the division under this title, a person subject to any
136 of the unlawful and unprofessional conduct provisions of this title is strictly liable for each
137 violation.
138 (4) The following are not evidence of engaging in unprofessional conduct under
139 Subsection [
140 (a) an arrest not followed by a conviction; or
141 (b) a conviction for which an individual's incarceration has ended more than seven
142 years before the date of the division's consideration, unless:
143 (i) after the incarceration the individual has engaged in additional conduct that results
144 in another conviction, a plea of nolo contendere, or a plea of guilty or nolo contendere that is
145 held in abeyance pending the successful completion of probation; or
146 (ii) the conviction was for:
147 (A) a violent felony as defined in Section 76-3-203.5;
148 (B) a felony related to a criminal sexual act pursuant to Title 76, Chapter 5, Part 4,
149 Sexual Offenses, or Title 76, Chapter 5b, Sexual Exploitation Act; or
150 (C) a felony related to criminal fraud or embezzlement, including a felony pursuant to
151 Title 76, Chapter 6, Part 5, Fraud, or Title 76, Chapter 6, Part 4, Theft.
152 (5) In accordance with Subsection (2)(b)(i), a health care provider may deviate from
153 medical norms or established practices if:
154 (a) the health care provider does not deviate outside of the health care provider's scope
155 of practice and possesses the education, training, and experience to competently and safely
156 administer the alternative health care service;
157 (b) the health care provider does not provide an alternative health care service that is
158 otherwise contrary to any state or federal law;
159 (c) the alternative health care service has reasonable potential to be of benefit to the
160 patient to whom the alternative health care service is to be given;
161 (d) the potential benefit of the alternative health care service outweighs the known
162 harms or side effects of the alternative health care service;
163 (e) the alternative health care service is reasonably justified under the totality of the
164 circumstances;
165 (f) after diagnosis but before providing the alternative health care service:
166 (i) the health care provider educates the patient on the health care services that are
167 within the medical norms and established practices;
168 (ii) the health care provider discloses to the patient that the health care provider is
169 recommending an alternative health care service that deviates from medical norms and
170 established practices;
171 (iii) the health care provider discusses the rationale for deviating from medical norms
172 and established practices with the patient;
173 (iv) the health care provider discloses any potential risks associated with deviation
174 from medical norms and established practices; and
175 (v) the patient signs and acknowledges a notice of deviation; and
176 (g) before providing an alternative health care service, the health care provider
177 discloses to the patient that the patient may enter into an agreement describing what would
178 constitute the health care provider's negligence related to deviation.
179 (6) As used in this section, "notice of deviation" means a written notice provided by a
180 health care provider to a patient that:
181 (a) is specific to the patient;
182 (b) indicates that the health care provider is deviating from medical norms or
183 established practices in the health care provider's recommendation for the patient's treatment;
184 (c) describes how the alternative health care service deviates from medical norms or
185 established practices;
186 (d) describes the potential risks and benefits associated with the alternative health care
187 service;
188 (e) describes the health care provider's reasonably justified rationale regarding the
189 reason for the deviation; and
190 (f) provides clear and unequivocal notice to the patient that the patient is agreeing to
191 receive the alternative health care service which is outside medical norms and established
192 practices.
193 Section 2. Section 58-17b-502 is amended to read:
194 58-17b-502. Unprofessional conduct.
195 (1) "Unprofessional conduct" includes:
196 (a) willfully deceiving or attempting to deceive the division, the board, or their agents
197 as to any relevant matter regarding compliance under this chapter;
198 (b) except as provided in Subsection (2):
199 (i) paying or offering rebates to practitioners or any other health care providers, or
200 receiving or soliciting rebates from practitioners or any other health care provider; or
201 (ii) paying, offering, receiving, or soliciting compensation in the form of a commission,
202 bonus, rebate, kickback, or split fee arrangement with practitioners or any other health care
203 provider, for the purpose of obtaining referrals;
204 (c) misbranding or adulteration of any drug or device or the sale, distribution, or
205 dispensing of any outdated, misbranded, or adulterated drug or device;
206 (d) engaging in the sale or purchase of drugs or devices that are samples or packages
207 bearing the inscription "sample" or "not for resale" or similar words or phrases;
208 (e) except as provided in Section 58-17b-503, accepting back and redistributing any
209 unused drug, or a part of it, after it has left the premises of a pharmacy;
210 (f) an act in violation of this chapter committed by a person for any form of
211 compensation if the act is incidental to the person's professional activities, including the
212 activities of a pharmacist, pharmacy intern, or pharmacy technician;
213 (g) violating:
214 (i) the federal Controlled Substances Act, Title II, P.L. 91-513;
215 (ii) Title 58, Chapter 37, Utah Controlled Substances Act; or
216 (iii) rules or regulations adopted under either act;
217 (h) requiring or permitting pharmacy interns or technicians to engage in activities
218 outside the scope of practice for their respective license classifications, as defined in this
219 chapter and division rules made in collaboration with the board, or beyond their scope of
220 training and ability;
221 (i) administering:
222 (i) without appropriate training, as defined by rule;
223 (ii) without a physician's order, when one is required by law; and
224 (iii) in conflict with a practitioner's written guidelines or written protocol for
225 administering;
226 (j) disclosing confidential patient information in violation of the provisions of the
227 Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat.
228 1936, as amended, or other applicable law;
229 (k) engaging in the practice of pharmacy without a licensed pharmacist designated as
230 the pharmacist-in-charge;
231 (l) failing to report to the division any adverse action taken by another licensing
232 jurisdiction, government agency, law enforcement agency, or court for conduct that in
233 substance would be considered unprofessional conduct under this section;
234 (m) as a pharmacist or pharmacy intern, compounding a prescription drug in a dosage
235 form which is regularly and commonly available from a manufacturer in quantities and
236 strengths prescribed by a practitioner;
237 (n) failing to act in accordance with Title 26, Chapter 64, Family Planning Access Act,
238 when dispensing a self-administered hormonal contraceptive under a standing order;
239 (o) violating the requirements of Title 26, Chapter 61a, Utah Medical Cannabis Act; or
240 (p) falsely making an entry in, or altering, a medical record with the intent to conceal:
241 (i) a wrongful or negligent act or omission of an individual licensed under this chapter
242 or an individual under the direction or control of an individual licensed under this chapter; or
243 (ii) conduct described in Subsections (1)(a) through (o) or Subsection 58-1-501(1).
244 (2) Subsection (1)(b) does not apply to:
245 (a) giving or receiving a price discount based on purchase volume;
246 (b) passing along a pharmaceutical manufacturer's rebate; or
247 (c) providing compensation for services to a veterinarian.
248 (3) "Unprofessional conduct" does not include[
249 (a) in accordance with Title 26, Chapter 61a, Utah Medical Cannabis Act:
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251 Section 26-61a-102, providing pharmacy medical provider services in a medical cannabis
252 pharmacy; or
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254 defined in Section 26-61a-102, providing state central patient portal medical provider
255 services[
256 (b) if a pharmacist reasonably believes that a prescription drug will have adverse or
257 harmful effects on an individual and warns the individual of the potential effects, filling a
258 prescription prescribed by a health care provider who:
259 (i) is operating within the health care provider's scope of practice; and
260 (ii) is deviating from a medical norm or established practice in accordance with
261 Subsection 58-1-501(2)(b)(i).
262 (4) Notwithstanding Subsection (3), the division, in consultation with the board and in
263 accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, shall define
264 unprofessional conduct for a pharmacist described in Subsections (3)(a) and (b).
265 Section 3. Section 78B-3-428 is enacted to read:
266 78B-3-428. Breach of duty for deviating from established practices.
267 (1) A health care provider does not breach the duty of care the heath care provider
268 owes to a patient:
269 (a) to the extent any alleged breach is based on actions related to the health care
270 provider's deviation from medical norms or established practices; and
271 (b) if the conditions described in Subsection 58-1-501(5) have been met.
272 (2) A health care facility is not vicariously liable for an action or claim described in
273 Subsection (1)(a) if the conditions described in Subsection 58-1-501(5) have been met.