DAR File No. 32707

Commerce, Occupational and Professional Licensing

R156-67

Utah Medical Practice Act Rules

NOTICE OF PROPOSED RULE

DAR File No.: 32707
Filed: 06/04/2009, 09:44
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Division and the Physicians Licensing Board reviewed this rule and determined that changes needed to be made.

Summary of the rule or change:

Throughout the rule the term "rules" has been replaced with "rule" where applicable. In Section R156-67-302d, amendments to this section update references and clarify the circumstances for individuals who may be required to take the Special Purpose Examination (SPEX) to create a consistent requirement between the medical professions. In Section R156-67-304, amendments to this section clarify the expectations and requirements for continuing education required of licensed physicians/surgeons. The Division of Occupational and Professional Licensing is also added as an approved provider for continuing education. In Section R156-67-306, a word correction is made. In Section R156-67-502, added as unprofessional conduct the violation of any provision of the American Medical Association's (AMA) Code of Medical Ethics. In Section R156-67-602, updated the AMA Code of Medical Ethics to the 2008-2009 edition.

State statutory or constitutional authorization for this rule:

Section 58-67-101 and Subsections 58-1-106(1)(a) and 58-1-202(1)(a)

This rule or change incorporates by reference the following material:

Adds the AMA "Code of Medical Ethics", 2008-2009 edition; and deletes the "Code of Medical Ethics" of the Council on Ethical and Judicial Affairs as published by the AMA Policy Compendium, 2001 edition

Anticipated cost or savings to:

the state budget:

The Division will incur minimal costs of approximately $50 to print and distribute the rule once the proposed amendments are made effective. The Division also incurred a cost of $69.95 to purchase the updated edition of the AMA Code of Medical Ethics. Any costs incurred will be absorbed in the Division's current budget.

local governments:

The proposed amendments only apply to licensed physicians/surgeons and applicants for licensure in that classification. As a result, the proposed amendments do not apply to local governments.

small businesses and persons other than businesses:

The proposed amendments only apply to licensed physicians/surgeons and applicants for licensure in that classification. Licensees and applicants for licensure may work in a small business; however, the proposed amendments would not directly affect the business. As a result of the proposed amendments, licensees will now have an additional option with respect to obtaining required continuing education hours as a result of the Division being added as an approved continuing education provider. Licensees may see minimal savings in continuing education costs as a result of the Division now providing continuing education training for the profession. However, any exact amount of savings is unable to be determined. There may be unknown costs if a licensee engages in violation of the AMA Code of Medical Ethics which is being added as unprofessional conduct and if an administrative proceeding is initiated as a result of any violation committed by a licensee. However, if a licensee does not engage in the unprofessional conduct behavior, no costs will be incurred. Any person who wanted to purchase a copy of the AMA Code of Medical Ethics would incur a cost of approximately $70 if not an AMA member. However, it is not a requirement that each licensee have a copy of this book in their possession.

Compliance costs for affected persons:

The proposed amendments only apply to licensed physicians/surgeons and applicants for licensure in that classification. As a result of the proposed amendments, licensees will now have an additional option with respect to obtaining required continuing education hours as a result of the Division being added as an approved continuing education provider. Licensees may see minimal savings in continuing education costs as a result of the Division now providing continuing education training for the profession. However, any exact amount of savings is unable to be determined. There may be unknown costs if a licensee engages in violation of the AMA Code of Medical Ethics which is being added as unprofessional conduct and if an administrative proceeding is initiated as a result of any violation committed by a licensee. However, if a licensee does not engage in the unprofessional conduct behavior, no costs will be incurred. Any person who wanted to purchase a copy of the AMA Code of Medical Ethics would incur a cost of approximately $70 if not an AMA member. However, it is not a requirement that each licensee have a copy of this book in their possession.

Comments by the department head on the fiscal impact the rule may have on businesses:

This rule filing makes various technical amendments and sets forth the circumstances that would require an applicant to take the SPEX. As discussed in the rule summary, these changes are not expected to create any fiscal impact to businesses. Francine A. Giani, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Commerce
Occupational and Professional Licensing
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY UT 84111-2316

Direct questions regarding this rule to:

Noel Taxin at the above address, by phone at 801-530-6621, by FAX at 801-530-6511, or by Internet E-mail at ntaxin@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

07/31/2009

Interested persons may attend a public hearing regarding this rule:

7/08/2009 at 9:00 AM, Heber Wells Bldg, 160 E 300 S, Conference Room 474 (fourth floor), Salt Lake City, UT

This rule may become effective on:

08/07/2009

Authorized by:

Thad LeVar, Deputy Director

R156. Commerce, Occupational and Professional Licensing.

R156-67. Utah Medical Practice Act Rule[s].

R156-67-101. Title.

[These rules]This rule shall be known as the "Utah Medical Practice Act Rule[s]".

 

R156-67-102. Definitions.

In addition to the definitions in Title 58, Chapters 1 and 67, as used in Title 58, Chapters 1 and 67 or [these rules]this rule:

(1) "ACCME" means the Accreditation Council for Continuing Medical Education.

(2) "Alternate medical practices", as used in Section R156-67-603, means treatment or therapy which is determined in an adjudicative proceeding conducted in accordance with Title 63G, Chapter 4, Administrative Procedures Act, to be:

(a) not generally recognized as standard in the practice of medicine;

(b) not shown by current generally accepted medical evidence to present a greater risk to the health, safety, or welfare of the patient than does prevailing treatment considered to be the standard in the profession of medicine; and

(c) supported by a body of current generally accepted written documentation demonstrating the treatment or therapy has reasonable potential to be of benefit to the patient to whom the therapy or treatment is to be given.

(3) "AMA" means the American Medical Association.

(4) "FLEX" means the Federation of State Medical Boards Licensing Examination.

(5) "FMGEMS" means the Foreign Medical Graduate Examination in Medical Science.

(6) "FSMB" means the Federation of State Medical Boards.

(7) "Homeopathic medicine" means a system of medicine employing and limited to substances prepared and prescribed in accordance with the principles of homeopathic pharmacology as described in the Homeopathic Pharmacopoeia of the United States, its compendia, addenda, and supplements, as officially recognized by the federal Food, Drug and Cosmetic Act, Public Law 717.21 U.S. Code Sec. 331 et seq., as well as the state of Utah's food and drug laws and Controlled Substances Act.

(8) "LMCC" means the Licentiate of the Medical Council of Canada.

(9) "NBME" means the National Board of Medical Examiners.

(10) "Unprofessional conduct" as defined in Title 58, Chapters 1 and 67 is further defined in accordance with Subsection 58-1-203(1)(e), in Section R156-67-502.

(11) "USMLE" means the United States Medical Licensing Examination.

 

R156-67-103. Authority - Purpose.

[These rules are]This rule is adopted by the division under the authority of Subsection 58-1-106(1)(a) to enable the division to administer Title 58, Chapter 67.

 

R156-67-302d. Qualifications for Licensure - Examination Requirements.

(1) In accordance with Subsection 58-67-302(1)(g), the required licensing examination sequence is the following:

(a) the FLEX components I and II on which the applicant shall have achieved a score of not less than 75 on each component part;[ or]

(b) the NBME examination parts I, II, and III on which the applicant shall achieve a passing score of not less than 75 on each part;[ or]

(c) the USMLE, steps 1, 2 and 3 on which the applicant shall achieve a score of not less than 75 on each step;[ or]

(d) the LMCC examination, Parts 1 and 2;[ or]

(e) the NBME part I or the USMLE step 1 and the NBME part II or the USMLE step 2 and the NBME part [II]III or the USMLE step 3;[ or]

(f) the FLEX component 1 and the USMLE step 3; or

(g) the NBME part I or the USMLE step 1 and the NBME part II or the USMLE step 2 and the FLEX component 2.

(h) In [addition]accordance with Subsection 58-67-302.5(1)(g), all applicants who are foreign medical graduates shall pass the FMGEMS unless they pass the USMLE steps 1 and 2.

(2) In accordance with Subsections 58-67-302[(2)(d)](1)(g) and (2)(e), an applicant [under the following circumstances ]may be required to take the SPEX examination [to document his qualification for licensure]if the applicant:

(a) has not practiced in the past [three]five years;

(b) has had disciplinary action [in the past]within the past five years; or

(c) has had a substance abuse disorder or physical or mental impairment within the past five years which may affect [his]the applicant's ability to safely practice[; or

(d) has had a history of substance abuse].

(3) In accordance with Subsection (2) above, the passing score on the SPEX examination is 75.

 

R156-67-303. Renewal Cycle - Procedures.

(1) In accordance with Subsection 58-1-308(1), the renewal date for the two-year renewal cycle applicable to licensees under Title 58, Chapter 67 is established by rule in Section R156-1-308a.

(2) Renewal procedures shall be in accordance with Section R156-1-308c.

 

R156-67-304. Qualified Continuing Professional Education.

(1) The qualified continuing professional education set forth in Subsection 58-67-304(1) shall consist of 40 hours in each preceding two year licensure cycle.

(a) A minimum of 34 hours shall be in category 1 offerings as established by the ACCME[ in each preceding two year licensure cycle].

(b) A maximum of six hours of continuing education may come from the Division of Occupational and Professional Licensing.

([4]c) Participation in an ACGME approved residency program shall be considered to meet the continuing education requirement in a pro-rata amount equal to any part of that two year period.

(2) [The standard for qualified continuing professional education is that it consist of offerings or courses approved by institutions accredited by the ACCME to approve continuing medical education.]Continuing education under this section shall:

(a) be relevant to the licensee's professional practice;

(b) be prepared and presented by individuals who are qualified by education, training and experience to provide medical continuing education; and

(c) have a method of verification of attendance and completion which may include a "CME Self Reporting Log".

(3) Credit for continuing education shall be recognized in 50 minute hour blocks of time for education completed in formally established classroom courses, seminars, lectures, conferences or training sessions which meet the criteria listed in Subsection (2) above.

([3]4) A licensee must be able to document completion of the continuing professional education upon the request of the Division. Such documentation [should]shall be retained until the next renewal cycle.[ Documentation of completed qualified continuing professional education shall consist of any of the following:

(a) certificates from sponsoring agencies;

(b) transcripts of participation on applicable institutions letterhead; and

(c) "CME Self-Reporting Log".]

 

R156-67-306. Exemptions from Licensure.

In accordance with Subsection 58-1-307(1), exemptions from licensure as a physician and surgeon include the following:

(1) any physician [excepted]exempted from licensure, who engages in prescribing, dispensing, or administering a controlled substance outside of a hospital, shall be required to apply for and obtain a Utah Controlled Substance License as a condition precedent to them administering, dispensing or prescribing a controlled substance;

(2) any physician appointed to a graduate medical education or training program which is not accredited by the ACGME, for which [exception]exemption from licensure is requested under the provisions of Subsection 58-1-307(1)(c) shall apply for registration with and receive approval of the division and board as a condition precedent to that individual engaging in any activity included in the practice of medicine;

(3) any person engaged in a competent public screening program making measures of physiologic conditions including serum cholesterol, blood sugar and blood pressure, shall be exempt from licensure and shall not be considered to be engaged in the practice of medicine conditioned upon compliance with all of the following:

(a) all instruments or devices used in making measures are approved by the Food and Drug Administration of the U.S. Department of Health, to the extent an approval is required, and the instruments and devices are used in accordance with those approvals;

(b) the facilities and testing protocol meet any standards or personnel training requirements of the Utah Department of Health;

(c) unlicensed personnel shall not interpret results of measures or tests nor shall they make any recommendation with respect to treatment or the purchase of any product;

(d) licensed personnel shall act within the lawful scope of practice of their license classification;

(e) unlicensed personnel shall conform to the referral and follow-up protocol approved by the Utah Department of Health for each measure or test; and

(f) information provided to those persons measured or tested for the purpose of permitting them to interpret their own test results shall be only that approved by the Utah Department of Health;

(4) non-licensed public safety individuals not having emergency medical technician (EMT) certification who are designated by appropriate city, county, or state officials as responders may be issued and allowed to carry the Mark I automatic injector antidote kits and may administer the antidote to himself or his designated first response "buddy". Prior to being issued the kits, the designated responders must successfully complete a course on the use of auto-injectors. The kits may be issued to the responder only by his employing agency and procured through the Utah Department of Health.

 

R156-67-502. Unprofessional Conduct.

"Unprofessional conduct" includes:

(1) prescribing for oneself any Schedule II or III controlled substance; however, nothing in [these rules]this rule shall be interpreted by the division or the board to prevent a licensee from using, possessing or administering to himself a Schedule II or III controlled substance which was legally prescribed for him by a licensed practitioner acting within his scope of licensure when it is used in accordance with the prescription order and for the use for which it was intended;

(2) knowingly prescribing, selling, giving away or administering, directly or indirectly, or offering to prescribe, sell, furnish, give away or administer any scheduled controlled substance as defined in Title 58, Chapter 37 to a drug dependent person, as defined in Subsection 58-37-2(s) unless permitted by law and when it is prescribed, dispensed or administered according to a proper medical diagnosis and for a condition indicating the use of that controlled substance is appropriate;

(3) knowingly engaging in billing practices which are abusive and represent charges which are grossly excessive for services rendered;

(4) directly or indirectly giving or receiving any fee, commission, rebate or other compensation for professional services not actually and personally rendered or supervised; however, nothing in this section shall preclude the legal relationships within lawful professional partnerships, corporations or associations or the relationship between an approved supervising physician and physician assistants or advanced practice nurses supervised by them;

(5) knowingly failing to transfer a copy of pertinent and necessary medical records or a summary thereof to another physician when requested to do so by the subject patient or by his legally designated representative;

(6) failing to furnish to the board information requested by the board which is known by a licensee with respect to the quality and adequacy of medical care rendered to patients by physicians licensed under the Medical Practice Act;

(7) failing as an operating surgeon to perform adequate pre-operative and primary post-operative care of the surgical condition for a patient in accordance with the standards and ethics of the profession or to arrange for competent primary post-operative care of the surgical condition by a licensed physician and surgeon who is equally qualified to provide that care;

(8) billing a global fee for a procedure without providing the requisite care;

(9) supervising the providing of breast screening by diagnostic mammography services or interpreting the results of breast screening by diagnostic mammography to or for the benefit of any patient without having current certification or current eligibility for certification by the American Board of Radiology. However, nothing in this subsection shall be interpreted to prevent a licensed physician and surgeon from reviewing the results of any breast screening by diagnostic mammography procedure upon a patient for the purpose of considering those results in determining appropriate care and treatment of that patient if the results are interpreted by a physician and surgeon qualified under this subsection and a timely written report is prepared by the interpreting physician and surgeon in accordance with the standards and ethics of the profession;

(10) failing of a licensee under Title 58, Chapter 67, without just cause to repay as agreed any loan or other repayment obligation legally incurred by the licensee to fund the licensee's education or training as a medical doctor;

(11) failing of a licensee under Title 58, Chapter 67, without just cause to comply with the terms of any written agreement in which the licensee's education or training as a medical doctor is funded in consideration for the licensee's agreement to practice in a certain locality or type of locality or to comply with other conditions of practice following licensure;

(12) a physician providing services to a department of health by participating in a system under which the physician provides the department with completed and signed prescriptions without the name and address of the patient, or date the prescription is provided to the patient when the prescription form is to be completed by authorized registered nurses employed by the department of health which services are not in accordance with the provisions of Section 58-17a-620;

(13) failing to keep the division informed of a current address and telephone number;[ and]

(14) engaging in alternate medical practice except as provided in Section R156-67-603; and

(15) violation of any provision of the American Medical Association (AMA) "Code of Medical Ethics", 2008-2009 edition, which is hereby incorporated by reference.

 

R156-67-602. Medical Records.

In accordance with Subsection 58-67-803(1), medical records shall be maintained to be consistent with the following:

(1) all applicable laws, regulations, and rules; and

(2) the "AMA Code of Medical Ethics", 2008-2009 edition[ of the Council on Ethical and Judicial Affairs as published in the AMA Policy Compendium, 2001 edition], which is hereby incorporated by reference.

 

KEY: physicians, licensing

Date of Enactment or Last Substantive Amendment: [February 19, 2002]2009

Notice of Continuation: June 26, 2006

Authorizing, and Implemented or Interpreted Law: 58-67-101; 58-1-106(1)(a); 58-1-202(1)(a)