Representative Karianne Lisonbee proposes the following substitute bill:


1     
HEALTH CARE PRACTITIONER LIABILITY AMENDMENTS

2     
2023 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Kirk A. Cullimore

5     
House Sponsor: Karianne Lisonbee

6     

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
30     

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          [(a)] (i) violating any statute, rule, or order regulating an occupation or profession
75     under this title;
76          [(b)] (ii) violating, or aiding or abetting any other person to violate, any generally
77     accepted professional or ethical standard applicable to an occupation or profession regulated
78     under this title;
79          [(c)] (iii) subject to the provisions of Subsection (4), engaging in conduct that results in
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          [(d)] (iv) engaging in conduct that results in disciplinary action, including reprimand,
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          [(e)] (v) engaging in conduct, including the use of intoxicants, drugs, narcotics, or
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          [(f)] (vi) practicing or attempting to practice an occupation or profession regulated
95     under this title despite being physically or mentally unfit to do so;
96          [(g)] (vii) practicing or attempting to practice an occupation or profession regulated
97     under this title through gross incompetence, gross negligence, or a pattern of incompetency or
98     negligence;
99          [(h)] (viii) practicing or attempting to practice an occupation or profession requiring
100     licensure under this title by any form of action or communication which is false, misleading,
101     deceptive, or fraudulent;
102          [(i)] (ix) practicing or attempting to practice an occupation or profession regulated
103     under this title beyond the scope of the licensee's competency, abilities, or education;
104          [(j)] (x) practicing or attempting to practice an occupation or profession regulated
105     under this title beyond the scope of the licensee's license;
106          [(k)] (xi) verbally, physically, mentally, or sexually abusing or exploiting any person
107     through conduct connected with the licensee's practice under this title or otherwise facilitated
108     by the licensee's license;
109          [(l)] (xii) acting as a supervisor without meeting the qualification requirements for that
110     position that are defined by statute or rule;
111          [(m)] (xiii) issuing, or aiding and abetting in the issuance of, an order or prescription
112     for a drug or device:
113          [(i)] (A) without first obtaining information in the usual course of professional
114     practice, that is sufficient to establish a diagnosis, to identify conditions, and to identify
115     contraindications to the proposed treatment; or
116          [(ii)] (B) with prescriptive authority conferred by an exception issued under this title,
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          [(n)] (xiv) violating a provision of Section 58-1-501.5; or
122          [(o)] (xv) violating the terms of an order governing a license.
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 [(2)(c)] (2)(a)(iii):
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:
250          [(a)] (i) when registered as a pharmacy medical provider, as that term is defined in
251     Section 26-61a-102, providing pharmacy medical provider services in a medical cannabis
252     pharmacy; or
253          [(b)] (ii) when acting as a state central patient portal medical provider, as that term is
254     defined in Section 26-61a-102, providing state central patient portal medical provider
255     services[.]; or
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 Subsection 58-1-501(5) have been met.