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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 ▸ provides immunity, under certain circumstances, for a health care provider who
13 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;
79 [
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;
86 [
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;
99 [
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;
111 [
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
116 [
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 practice in accordance with Section
126 78B-3-428; or
127 (ii) notwithstanding Section 58-1-501.6, a health care provider who advertises 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 treatment;
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 Section 2. Section 58-17b-502 is amended to read:
153 58-17b-502. Unprofessional conduct.
154 (1) "Unprofessional conduct" includes:
155 (a) willfully deceiving or attempting to deceive the division, the board, or their agents
156 as to any relevant matter regarding compliance under this chapter;
157 (b) except as provided in Subsection (2):
158 (i) paying or offering rebates to practitioners or any other health care providers, or
159 receiving or soliciting rebates from practitioners or any other health care provider; or
160 (ii) paying, offering, receiving, or soliciting compensation in the form of a commission,
161 bonus, rebate, kickback, or split fee arrangement with practitioners or any other health care
162 provider, for the purpose of obtaining referrals;
163 (c) misbranding or adulteration of any drug or device or the sale, distribution, or
164 dispensing of any outdated, misbranded, or adulterated drug or device;
165 (d) engaging in the sale or purchase of drugs or devices that are samples or packages
166 bearing the inscription "sample" or "not for resale" or similar words or phrases;
167 (e) except as provided in Section 58-17b-503, accepting back and redistributing any
168 unused drug, or a part of it, after it has left the premises of a pharmacy;
169 (f) an act in violation of this chapter committed by a person for any form of
170 compensation if the act is incidental to the person's professional activities, including the
171 activities of a pharmacist, pharmacy intern, or pharmacy technician;
172 (g) violating:
173 (i) the federal Controlled Substances Act, Title II, P.L. 91-513;
174 (ii) Title 58, Chapter 37, Utah Controlled Substances Act; or
175 (iii) rules or regulations adopted under either act;
176 (h) requiring or permitting pharmacy interns or technicians to engage in activities
177 outside the scope of practice for their respective license classifications, as defined in this
178 chapter and division rules made in collaboration with the board, or beyond their scope of
179 training and ability;
180 (i) administering:
181 (i) without appropriate training, as defined by rule;
182 (ii) without a physician's order, when one is required by law; and
183 (iii) in conflict with a practitioner's written guidelines or written protocol for
184 administering;
185 (j) disclosing confidential patient information in violation of the provisions of the
186 Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat.
187 1936, as amended, or other applicable law;
188 (k) engaging in the practice of pharmacy without a licensed pharmacist designated as
189 the pharmacist-in-charge;
190 (l) failing to report to the division any adverse action taken by another licensing
191 jurisdiction, government agency, law enforcement agency, or court for conduct that in
192 substance would be considered unprofessional conduct under this section;
193 (m) as a pharmacist or pharmacy intern, compounding a prescription drug in a dosage
194 form which is regularly and commonly available from a manufacturer in quantities and
195 strengths prescribed by a practitioner;
196 (n) failing to act in accordance with Title 26, Chapter 64, Family Planning Access Act,
197 when dispensing a self-administered hormonal contraceptive under a standing order;
198 (o) violating the requirements of Title 26, Chapter 61a, Utah Medical Cannabis Act; or
199 (p) falsely making an entry in, or altering, a medical record with the intent to conceal:
200 (i) a wrongful or negligent act or omission of an individual licensed under this chapter
201 or an individual under the direction or control of an individual licensed under this chapter; or
202 (ii) conduct described in Subsections (1)(a) through (o) or Subsection 58-1-501(1).
203 (2) Subsection (1)(b) does not apply to:
204 (a) giving or receiving a price discount based on purchase volume;
205 (b) passing along a pharmaceutical manufacturer's rebate; or
206 (c) providing compensation for services to a veterinarian.
207 (3) "Unprofessional conduct" does not include[
208 (a) in accordance with Title 26, Chapter 61a, Utah Medical Cannabis Act:
209 [
210 Section 26-61a-102, providing pharmacy medical provider services in a medical cannabis
211 pharmacy; or
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213 defined in Section 26-61a-102, providing state central patient portal medical provider
214 services[
215 (b) if a pharmacist reasonably believes that a prescription drug will have adverse or
216 harmful effects on an individual and warns the individual of the potential effects, filling a
217 prescription prescribed by a health care provider who:
218 (i) is operating within the health care provider's scope of practice; and
219 (ii) is deviating from a medical norm or established practice in accordance with Section
220 78B-3-428.
221 (4) Notwithstanding Subsection (3), the division, in consultation with the board and in
222 accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, shall define
223 unprofessional conduct for a pharmacist described in Subsections (3)(a) and (b).
224 Section 3. Section 78B-3-428 is enacted to read:
225 78B-3-428. Immunity from liability for deviating from established practices.
226 (1) A health care provider is immune from a malpractice action against a health care
227 provider:
228 (a) to the extent the claim is based on actions related to the health care provider's
229 deviation from medical norms or established practices; and
230 (b) if the health care provider complied with Subsection (2).
231 (2) A health care provider seeking immunity under Subsection (1):
232 (a) may not deviate outside of the health care provider's scope of practice;
233 (b) may not provide a health care service that is otherwise contrary to any state law;
234 (c) shall provide the patient a written notice that the health care provider is deviating
235 from medical norms and established practices;
236 (d) shall obtain from the patient a written acknowledgment that the patient understood
237 that the health care provider was deviating from medical norms or established practices;
238 (e) shall document in the patient's medical record the health care provider's rationale
239 regarding the reason for the deviation;
240 (f) shall share the rationale described in Subsection (2)(e) with the patient before
241 providing care that deviates from medical norms or established practices;
242 (g) shall disclose any known harms other patients have suffered related to the
243 deviation; and
244 (h) shall disclose to the patient that the patient may enter into an agreement describing
245 what would constitute the health care provider's negligence related to the deviation.
246 (3) A health care facility is not vicariously liable for an action or claim described in
247 Subsection (1)(a) if the health care facility's health care provider acted in accordance with
248 Subsection (2).