DAR File No. 44119
This rule was published in the November 1, 2019, issue (Vol. 2019, No. 21) of the Utah State Bulletin.
Commerce, Occupational and Professional Licensing
Rule R156-31b
Nurse Practice Act Rule
Notice of Proposed Rule
(Amendment)
DAR File No.: 44119
Filed: 10/07/2019 01:33:32 PM
RULE ANALYSIS
Purpose of the rule or reason for the change:
As authorized by Section 58-31b-503, the Board of Nursing recommends these proposed amendments to provide monetary fines for nurses who fail to comply with new Utah Code provisions enacted by H.B. 191, passed in the 2019 General Session, and H.B. 3001, passed in the 2018 Third Special Session.
Summary of the rule or change:
In Section R156-31b-402, these proposed amendments add to the fine schedule for nurses the following sanctions: 1) for an advanced practice registered nurse (APRN) who violates Section 58-37-19: initial offense $250; second offense $500; third and subsequent offense(s) $1,000; for an APRN who violates Title 26, Chapter 61a: initial offense $250; second offense $500; third and subsequent offense(s) $1,000. In addition, these amendments replace the fine schedule language with a table. In Section R156-31b-502, these proposed amendments add to the list of unprofessional conduct: 1) for an APRN, failing to discuss the risks of using an opiate with a patient or the patient's guardian in accordance with Section 58-37-19; 2) for an APRN, violating any provision of Title 26, Chapter 61a, the Utah Medical Cannabis Act; and 3) failing to practice within limits of competency.
Statutory or constitutional authorization for this rule:
- Section 58-31b-101
- Subsection 58-1-106(1)(a)
- Subsection 58-1-202(1)(a)
Anticipated cost or savings to:
the state budget:
The fiscal note for H.B. 191 (2019) estimated that two prescribers annually would pay a fine of $500 to $1,000 for non-compliance, for aggregate revenue of approximately $1,500 annually. The fiscal note for H.B. 3001 (2018) estimated the impact and it is available at: https://le.utah.gov/~2018S3/bills/static/HB3001.html. Any fines levied would be paid into the Nurse Education and Enforcement Account. The Division of Occupational and Professional Licensing (Division) estimates that these proposed amendments may result in two additional investigations of violations or complaints at a cost of $300 each for a total of $600. These amendments are not expected to impact any existing state practices or procedures, and as described below in the analysis for small businesses and non-small businesses, the Division does not expect any state agencies that may be acting as employers of licensees to experience any measurable fiscal impacts. No other impact to the state is expected beyond a minimal cost to the Division of approximately $75 to disseminate this rule once these proposed amendments are made effective.
local governments:
The Division estimates that these proposed amendments will have no measurable impact on local governments. None of these amendments are expected to impact existing local governments' practices or procedures. Additionally, as described below in the analysis for small businesses and non-small businesses, the Division does not expect any local governments that may be acting as employers of licensees to experience any measurable fiscal impacts.
small businesses:
These proposed amendments will regulate the APRNs practicing in Utah, which may indirectly affect the estimated 403 small businesses in Utah comprising establishments of licensed APRNs, or who employ APRNs, such as private or group practices, clinics, hospitals, private mental health practices, or medical centers (NAICS 621399, 621330, 621498, and 621999). However, these amendments are not expected to result in any measurable fiscal impact to small businesses. First, these amendments only impose a penalty for noncompliance with Utah Code requirements, and the practices of most small businesses are, or should be, already consistent with existing requirements. Second, these amendments will only affect licensees who violate the statute and are sanctioned, and as described below for other persons, for the typical licensee these proposed amendments will have no fiscal impact. Accordingly, any impact from non-compliance will never be uniformly felt across the industry, and most small businesses will never be impacted. Finally, although a small business employing a licensee who is sanctioned may face indirect financial costs, it is impossible to estimate what those costs might be because any such violations are unforeseeable, and because any indirect costs that a small business may potentially experience from any potential sanctions will vary widely depending on the unique characteristics of the employer and the individual characteristics and actions of each licensee. This relevant data is unavailable and the cost of acquiring any such data is prohibitively expensive.
persons other than small businesses, businesses, or local governmental entities:
There are approximately 2,908 licensed APRNs that may be affected by these proposed amendments. No measurable fiscal impact to these persons is expected. First, these proposed amendments will only affect licensees who violate the statute(s) and are sanctioned, so that most licensees will never be impacted. These amendments only impose a penalty for noncompliance with existing Utah Code requirements, and the practices of most licensees are, or should be, already consistent with existing professional practice requirements. Further, the goal of this rule is to provide a deterrent, such that there is a $0 net impact on all parties involved and minimal occasions to sanction a licensee for noncompliance. Therefore, for the typical licensee, these proposed amendments are expected to have no direct or indirect fiscal impact. Second, although a licensee who is sanctioned may experience a fiscal impact, it is impossible to estimate what such costs might be with any accuracy at present, both because they would apply only in cases of unforeseeable violations, and because any potential costs would depend on the unique characteristics and actions of each individual licensee. This relevant data is unavailable and the cost of acquiring any such data is prohibitively expensive.
Compliance costs for affected persons:
As described above for other persons, the Division does not anticipate any compliance costs for any affected persons from these proposed amendments.
Comments by the department head on the fiscal impact the rule may have on businesses:
These proposed amendments replace the fine schedule language with a table. These amendments also provide monetary fines for nurses who fail to comply with new Utah Code provisions enacted by H.B. 191 (2019) and H.B. 3001 (2018). In addition, these amendments add to the list of unprofessional conduct: 1) failing to discuss the risks of using an opiate with a patient or the patient's guardian in accordance with Subsection 58-37-19, 2) violating any provision of Title 26, Chapter 61a, the Utah Medical Cannabis Act, and 3) failing to practice within limits of competency. Small Businesses (less than 50 employees): These proposed amendment will regulate APRNs practicing in Utah, which may indirectly affect the estimated 403 small businesses in Utah comprising establishments of licensed APRNs or who employ APRNs, such as private or group practices, clinics, hospitals, private mental health practices, or medical centers (NAICS 621399, 621330, 621498, and 621999). However, these amendments are not expected to result in any measurable fiscal impact to small businesses. First, these amendments only impose a penalty for noncompliance with Utah Code requirements, and the practices of most small businesses are, or should be, already consistent with existing requirements. Second, these amendments will only affect licensees who violate the statute and are sanctioned. For the typical licensee, these proposed amendments will have no fiscal impact. Accordingly, any impact from non-compliance will never be uniformly felt across the industry, and most small businesses will never be impacted. Finally, although a small business employing a licensee who is sanctioned may face indirect financial costs, it is impossible to estimate what those costs might be because any such violations are unforeseeable, and because any indirect costs that a small business may potentially experience from any potential sanctions will vary widely depending on the unique characteristics of the employer and the individual characteristics and actions of each licensee. This relevant data is unavailable and the cost of acquiring any such data is prohibitively expensive. Regulatory Impact to Non-Small Businesses (50 or more employees): These proposed amendment will regulate APRNs practicing in Utah, which may indirectly affect the estimated 101 non-small businesses in Utah comprising establishments of APRNs or who employ APRNs, such as private or group practices, hospitals, or medical centers (NAICS 621110, 622210, 622310). However, these proposed amendments are not expected to result in any measurable fiscal impact for non-small business for the same reasons as described above for small businesses. They are either inestimable, for the reasons stated, or there is no fiscal impact.
Francine A. Giani, Executive Director
The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:
CommerceOccupational and Professional Licensing
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY, UT 84111-2316
Direct questions regarding this rule to:
- Jeff Busjahn at the above address, by phone at 801-530-6789, by FAX at 801-530-6511, or by Internet E-mail at jbusjahn@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:
12/02/2019
Interested persons may attend a public hearing regarding this rule:
- 11/06/2019 10:30 AM, Heber Wells Bldg, 160 E 300 S, Conference Room 475 (fourth floor), Salt Lake City, UT
This rule may become effective on:
12/09/2019
Authorized by:
Mark Steinagel, Director
RULE TEXT
Appendix 1: Regulatory Impact Summary Table*
|
Fiscal Costs |
FY 2020 |
FY 2021 |
FY 2022 |
|
State Government |
$675 |
$600 |
$600 |
|
Local Government |
$0 |
$0 |
$0 |
|
Small Businesses |
$0 |
$0 |
$0 |
|
Non-Small Businesses |
$0 |
$0 |
$0 |
|
Other Person |
$0 |
$0 |
$0 |
|
Total Fiscal Costs: |
$675 |
$600 |
$600 |
|
|
|
|
|
|
Fiscal Benefits |
|
|
|
|
State Government |
$1,500 |
$1,500 |
$1,500 |
|
Local Government |
$0 |
$0 |
$0 |
|
Small Businesses |
$0 |
$0 |
$0 |
|
Non-Small Businesses |
$0 |
$0 |
$0 |
|
Other Persons |
$0 |
$0 |
$0 |
|
Total Fiscal Benefits: |
$1,500 |
$1,500 |
$1,500 |
|
|
|
|
|
|
Net Fiscal Benefits: |
$825 |
$900 |
$900 |
*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described above. Inestimable impacts for Non-Small Businesses are described below.
Appendix 2: Regulatory Impact to Non-Small Businesses
These proposed amendments will regulate APRNs practicing in Utah, which may indirectly affect the estimated 101 non-small businesses in Utah comprising establishments of APRNs, or who employ APRNs, such as private or group practices, hospitals, or medical centers (NAICS 621110, 622210, 622310). However, these proposed amendments are not expected to result in any measurable fiscal impact for non-small businesses. First, these amendments only impose a penalty for noncompliance with the Utah Code requirements, and the practices of most non-small businesses are, or should be, already consistent with existing requirements. Second, these amendments will only affect licensees who violate the statute and are sanctioned, and as described above for other persons, for the typical licensee these proposed amendments will have no fiscal impact. Accordingly, any impact from non-compliance will never be uniformly felt across the industry, and most non-small businesses will never be impacted. Finally, although a non-small business employing a licensee who is sanctioned may face indirect financial costs, it is impossible to estimate what those costs might be because any such violations are unforeseeable, and because any indirect costs that a non-small businesses may potentially experience from any potential sanctions will vary widely depending on the unique characteristics of the employer and the individual characteristics and actions of each licensee. This relevant data is unavailable and the cost of acquiring any such data is prohibitively expensive.
The head of the Department of Commerce, Francine Giani, has reviewed and approved this fiscal analysis.
R156. Commerce, Occupational and Professional Licensing.
R156-31b. Nurse Practice Act Rule.
R156-31b-402. Administrative Penalties.
In accordance with Sections 58-1-501,
58-31b-501, 58-31b-502, 58-31b-502.5, 58-31b-[801]503, Subsection 58-31b-102(1), and Section R156-31b-502, and
unless otherwise ordered by the presiding officer, the following
fine schedule shall apply
:[to a nurse or MAC.]
TABLE
FINE SCHEDULE
VIOLATION FIRST OFFENSE SUBSEQUENT OFFENSE
58-31b-501(1) $ 500 - $ 4,000 $ 4,000 - $ 8,000
58-31b-501(2) $ 500 - $ 4,000 $ 4,000 - $ 8,000
58-31b-501(3) $ 2,000 - $ 7,500 $ 7,500 - $ 9,500
58-31b-601 $ 2,000 - $ 7,500 $ 7,500 - $ 9,500
R156-31b-602 $ 2,000 - $ 7,500 $ 7,500 - $ 9,500
58-1-501(1)(a) $ 500 - $ 5,000 $ 5,000 - $10,000
58-1-501(1)(b) $ 500 - $ 5,000 $ 5,000 - $10,000
58-1-501(1)(c) $ 500 - $ 5,000 $ 5,000 - $10,000
58-1-501(1)(d) $ 500 - $ 5,000 $ 5,000 - $10,000
58-1-501(1)(e) $ 500 - $ 5,000 $ 5,000 - $10,000
58-1-501(1)(f)(i) $ 500 - $ 5,000 $ 5,000 - $10,000
58-1-501(2)(a) $ 500 - $ 5,000 $ 5,000 - $10,000
58-1-501(2)(b) $ 500 - $ 5,000 $ 5,000 - $10,000
58-1-501(2)(c) $ 500 - $ 5,000 $ 5,000 - $10,000
58-1-501(2)(d) $ 500 - $ 5,000 $ 5,000 - $10,000
58-1-501(2)(e) $ 500 - $ 5,000 $ 5,000 - $10,000
58-1-501(2)(f) $ 500 - $ 5,000 $ 5,000 - $10,000
58-1-501(2)(g) $ 500 - $ 5,000 $ 5,000 - $10,000
58-1-501(2)(h) $ 500 - $ 5,000 $ 5,000 - $10,000
58-1-501(2)(i) $ 500 - $ 5,000 $ 5,000 - $10,000
58-1-501(2)(j) $ 500 - $ 5,000 $ 5,000 - $10,000
58-1-501(2)(k) $ 500 - $ 5,000 $ 5,000 - $10,000
58-1-501(2)(l) $ 500 - $ 5,000 $ 5,000 - $10,000
58-1-501(2)(m) $ 500 - $ 5,000 $ 5,000 - $10,000
58-1-501(2)(o) $ 250 - $ 4,000 $ 4,000 - $ 8,000
58-31b-502(1) $ 500 - $ 5,000 $ 5,000 - $10,000
58-31b-502(2) $ 500 - $ 5,000 $ 5,000 - $10,000
58-31b-502(3) $ 4,000 - $ 8,000 $ 8,000 - $10,000
58-31b-502(4) $ 2,000 - $ 5,000 $ 5,000 - $10,000
58-31b-502(5) $ 1,000 - $ 5,000 $ 5,000 - $10,000
58-31b-502(6) $ 1,000 - $ 5,000 $ 5,000 - $10,000
58-31b-502(7) $ 1,000 - $ 5,000 $ 5,000 - $10,000
58-31b-502(8) $ 500 - $ 5,000 $ 5,000 - $10,000
58-31b-502(9) $ 500 - $ 5,000 $ 5,000 - $10,000
58-31b-502(10) $ 500 - $ 5,000 $ 5,000 - $10,000
58-31b-502(11) $ 500 - $ 5,000 $ 5,000 - $10,000
58-31b-502(12) $ 500 - $ 5,000 $ 5,000 - $10,000
58-31b-502(13) $ 1,000 - $ 5,000 $ 5,000 - $10,000
58-31b-502(14) double the original penalty, up to $20,000
58-31b-502(15) $ 1,000 - $ 5,000 $ 5,000 - $10,000
58-31b-801 $ 1,000 - $ 5,000 $ 5,000 - $10,000
58-1-501(1) $ 500 - $ 5,000 $ 5,000 - $10,000
58-1-501(2) $ 500 - $ 5,000 $ 5,000 - $10,000
R156-31b-502(1)(a) $ 500 - $ 4,000 $ 4,000 - $ 8,000
R156-31b-502(1)(b) $ 500 - $ 5,000 $ 5,000 - $10,000
R156-31b-502(1)(f) $ 500 - $ 5,000 $ 5,000 - $10,000
R156-31b-502(1)(e) $ 1,000 - $ 5,000 $ 5,000 - $10,000
R156-31b-502(1)(g) $ 250 - $ 1,500 $ 1,500 - $10,000
R156-31b-502(1)(h) $ 250 - $ 1,500 $ 1,500 - $10,000
58-31b-502.5(1) $ 500 - $ 5,000 $ 1,500 - $10,000
Ongoing:$2,000 per day but not less than the second offense
58-31b-502.5(2) $ 500 - $ 5,000 $ 1,500 - $10,000
Ongoing:$2,000 per day but not less than the second offense
58-31b-502.5(3) $ 5,000 $ 10,000
Ongoing: $ 2,000 per day but not less than the
second offense
R156-31b-502(1)(i) $ 250 second offense $500
third and subsequent offenses $1,000
R156-31b-502(1)(j) $ 250 second offense $500
third and subsequent offenses $1,000
Subsequent offenses. Sanctions for an offense subsequent to
second offense, shall be $10,000 or $2,000 per day.
[(1) Initial and second offenses.
(a) Using a protected title, name, or initials, if the
user is not properly licensed under this chapter, in violation of
Subsection 58-31b-501(1):
initial offense: $500 - $4,000
second offense: $4,000 - $8,000
(b) Using any name, title, or initials that would cause a
reasonable person to believe the user is licensed or certified
under this chapter if the user is not properly licensed or
certified under this chapter, in violation of Subsection
58-31b-501(2):
initial offense: $500 - $4,000
second offense: $4,000 - $8,000
(c) Conducting a nursing education program in the state
for the purpose of qualifying individuals to meet requirements
for licensure under this chapter without the program having been
approved under Section 58-31b-601 or Subsection R156-31b-602, in
violation of Subsection 58-31b-501(3):
initial offense: $2,000 - $7,500
second offense: $7,500 - $9,500
(d) Practicing or engaging in, representing oneself to be
practicing or engaging in, or attempting to practice or engage in
the practice of nursing, if the person is not licensed to do so
or exempted from licensure under Utah Code 58-31b et seq. or
restricted from doing so by a suspended, revoked, restricted,
temporary, probationary, or inactive license, or in violation of
restrictions that have been placed on a license, in violation of
Subsection 58-1-501(1)(a):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(e) Impersonating another licensee, or practicing an
occupation or profession under a false or assumed name, in
violation of Subsection 58-1-501(1)(b):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(f) Knowingly employing a person to practice or engage in
or attempt to practice or engage in the practice of nursing if
the employee is not licensed to do so, in violation of Subsection
58-1-501(1)(c):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(g) Knowingly permitting the person's authority to
engage in the practice of nursing to be used by another person,
in violation of Subsection 58-1-501(1)(d):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(h) Obtaining a passing score on a licensure examination,
applying for or obtaining a license, or otherwise dealing with
the Division or Board through the use of fraud, forgery,
intentional deception, misrepresentation, misstatement, or
omission, in violation of Subsection 58-1-501(1)(e):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(i) Issuing, or aiding and abetting in the issuance of,
an order or prescription for a drug or device to a person located
in this state without prescriptive authority conferred by a
license, or by an exception to licensure; or with prescriptive
authority conferred by an exception or a multistate practice
privilege, if the prescription was issued without first obtaining
information, in the usual course of professional practice, that
is sufficient to establish a diagnosis, to identify underlying
conditions and to identify contraindications to the proposed
treatment, in violation of Subsection 58-1-501(1)(f)(i):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(j) Violating or aiding or abetting any other person to
violate any statute, rule, or order regulating the practice of
nursing, in violation of Subsection 58-1-501(2)(a):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(k) Violating, or aiding or abetting any other person to
violate any generally accepted professional or ethical standard
applicable to the practice of nursing, in violation of Subsection
58-1-501(2)(b):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(l) Engaging in conduct that results in conviction or a
plea of nolo contendere which is held in abeyance pending the
successful completion of probation with respect to a crime of
moral turpitude or any other crime that, when considered with the
functions and duties of the practice of nursing, bears a
reasonable relationship to the licensee's or applicant's
ability to safely or competently practice the profession, in
violation of Subsection 58-1-501(2)(c):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(m) Engaging in conduct that results in disciplinary
action, including reprimand, censure, diversion, probation,
suspension, or revocation, by any other licensing or regulatory
authority having jurisdiction over the licensee or applicant in
the profession of nursing if the conduct would, in the state of
Utah, constitute grounds for denial of licensure or disciplinary
proceedings under Section 58-1-401, in violation of Subsection
58-1-501(2)(d):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(n) Engaging in conduct, including the use of
intoxicants, drugs, narcotics, or similar chemicals, to the
extent that the conduct does, or might reasonably be considered
to, impair the ability of the licensee or applicant to safely
engage in practice of the nursing profession, in violation of
Subsection 58-1-501(2)(e):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(o) Practicing or attempting to practice the profession
of nursing despite being physically or mentally unfit to do so,
in violation of Subsection 58-1-501(2)(f):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(p) Practicing or attempting to practice the profession
of nursing through gross incompetence, gross negligence, or a
pattern of incompetency or negligence, in violation of Subsection
58-1-501(2)(g):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(q) Practicing or attempting to practice the profession
of nursing by any form of action or communication which is false,
misleading, deceptive, or fraudulent, in violation of Subsection
58-1-501(2)(h):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(r) Practicing or attempting to practice the profession
of nursing beyond the individual's scope of competency,
abilities, or education, in violation of Subsection
58-1-501(2)(i):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(s) Practicing or attempting to practice the profession
of nursing beyond the scope of licensure, in violation of
Subsection 58-1-501(2)(j):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(t) Verbally, physically, mentally, or sexually abusing
or exploiting any person through conduct connected with the
licensee's practice in the profession of nursing or otherwise
facilitated by the licensee's license, in violation of
Subsection 58-1-501(2)(k):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(u) Acting as a supervisor without meeting the
qualification requirements for that position that are defined by
statute or under these rules, in violation of Subsection
58-1-502(2)(l):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(v) Issuing, or aiding and abetting in the issuance of,
an order or prescription for a drug or device without first
obtaining information in the usual course of professional
practice, that is sufficient to establish a diagnosis, to
identify conditions, and to identify contraindications to the
proposed treatment; or with prescriptive authority conferred by
an exception issued under this title, or a multistate practice
privilege recognized under this title, if the prescription was
issued without first obtaining information, in the usual course
of professional practice, that is sufficient to establish a
diagnosis, to identify underlying conditions, and to identify
contraindications to the proposed treatment, in violation of
Subsection 58-1-501(2)(m):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(w) Failing to safeguard a patient's right to privacy
as to the patient's person, condition, diagnosis, personal
effects, or any other matter about which the licensee is
privileged to know because of the licensee's or person with a
certification's position, in violation of Subsection
58-31b-502(1):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(x) Failing to provide nursing service in a manner that
demonstrates respect for the patient's human dignity and
unique personal character and needs without regard to the
patient's race, religion, ethnic background, socioeconomic
status, age, gender, or nature of the patient's health
problem, in violation of Subsection 58-31b-502(2):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(y) Engaging in sexual relations with a patient, in
violation of Subsection 58-31b-502(3):
initial offense: $4,000 - $8,000
second offense: $8,000 - $10,000
(z) Exploiting or using information about a patient or
exploiting the professional relationship by use of knowledge of
the patient obtained while practicing the occupation or
profession, in violation of Subsection 58-31b-502(4):
initial offense: $2,000 - $5,000
second offense: $5,000 - $10,000
(aa) Unlawfully obtaining, possessing, or using any
prescription drug or illicit drug, in violation of Subsection
58-31b-502(5):
initial offense: $1,000 - $5,000
second offense: $5,000 - $10,000
(bb) Unauthorized taking or personal use of nursing
supplies from an employer, in violation of Subsection
58-31b-502(6):
initial offense: $1,000 - $5,000
second offense: $5,000 - $10,000
(cc) Unauthorized taking or personal use of a
patient's personal property, in violation of Subsection
58-31b-502(7):
initial offense: $1,000 - $5,000
second offense: $5,000 - $10,000
(dd) Knowingly entering into any medical record any false
or misleading information or altering a medical record in any way
for the purpose of concealing an act, omission, or record of
events, medical condition, or any circumstance related to the
patient and the medical or nursing care provided, in violation of
Subsection 58-31b-502(8):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(ee) Unlawful or inappropriate delegation of nursing
care, in violation of Subsection 58-31b-502(9):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(ff) Failing to exercise appropriate supervision of
persons providing patient care services under supervision of the
licensed nurse, in violation of Subsection
58-31b-502(10):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(gg) Employing or aiding and abetting the employment of
unqualified or unlicensed person to practice as a nurse or MAC,
in violation of Subsection 58-31b-502(11):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(hh) Failing to file or record any medical report as
required by law, impeding or obstructing the filing or recording
of such a report, or inducing another to fail to file or record
such a report, in violation of Subsection
58-31b-502(12):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(ii) Breaching a statutory, common law, regulatory, or
ethical requirement of confidentiality with respect to a person
who is a patient, in violation of Subsection
58-31b-502(13):
initial offense: $1,000 - $5,000
second offense: $5,000 - $10,000
(jj) Failing to pay a penalty imposed by the Division, in
violation of Subsection 58-31b-502(14): double the original
penalty amount up to $20,000
(kk) Prescribing a schedule II-III controlled substance
without a consulting physician or outside of a consultation and
referral plan, in violation of Subsections 58-31b-502(1)(o),
58-31b-502(1)(r), and Section 58-31b-803:
initial offense: $1,000 - $5,000
second offense: $5,000 - $10,000
(ll) Failing to confine practice within the limits of
competency, in violation of Section 58-31b-801:
initial offense: $1,000 - $5,000
second offense: $5,000 - $10,000
(mm) Engaging in any other conduct which constitutes
unprofessional or unlawful conduct, in violation of Subsection
58-1-501(1) or (2):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(nn) Engaging in a sexual relationship with a patient
surrogate concurrent with the professional relationship, in
violation of Subsection R156-31b-502(1)(e):
initial offense: $1,000 - $5,000
second offense: $5,000 - $10,000
(oo) Failing to destroy a license that has expired due to
the issuance and receipt of an increased scope of practice
license, in violation of Subsection R156-31b-502(1)(a):
initial offense: $500 - $4,000
second offense: $4,000 - $8,000
(pp) Knowingly accepting or retaining a license that has
been issued pursuant to a mistake or on the basis of erroneous
information, in violation of Subsection
R156-31b-502(1)(b):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(qq) Engaging in practice in a disruptive manner, in
violation of Subsection R156-31b-502(1)(f):
initial offense: $500 - $5,000
second offense: $5,000 - $10,000
(rr) Violating the term of an order governing a license,
in violation of Subsection 58-1-501(2)(o):
initial offense: $250 - $4,000
second offense: $4,000 - $8,000
(ss) Administering sedation or anesthesia intravenously
to a patient in an outpatient setting that is not an emergency
department, without first obtaining the required consent from the
patient in writing, in violation of Subsection
58-31b-502.5(1):
first offense: $500 - $5,000
second offense: $1,500-$10,000
ongoing offense(s): $2,000 per day but not less than the
second offense
(tt) failing to report any adverse event under Section
26-1-40, with respect to the administering of sedation or
anesthesia intravenously to a patient in an outpatient setting
that is not an emergency department, in violation of Subsection
58-31b-502.5(2):
first offense: $500 - $5,000
second offense: $1,500 - $10,000
ongoing offense(s): $2,000 per day but not less than the
second offense
(uu) during a procedure for which sedation or anesthesia
will be administered intravenously to a patient in an outpatient
setting that is not an emergency department, failing to have
access to an advanced cardiac life support crash cart with
equipment that is regularly maintained according to guidelines
established by the American Heart Association, in violation of
Subsection 58-31b-502.5(3):
first offense: $5,000
second offense: $10,000
ongoing offense(s): $2,000 per day but not less than the
second offense
(2) Subsequent offenses. Sanctions for an offense
subsequent to the second offense, shall be $10,000 or $2,000 per
day.]
R156-31b-502. Unprofessional Conduct.
(1) "Unprofessional conduct" includes:
(a) failing to destroy a license that has expired due to the issuance and receipt of an increased scope of practice license;
(b) knowingly accepting or retaining a license that has been issued pursuant to a mistake or on the basis of erroneous information;
(c) as [to ]an RN or LPN, issuing a prescription for a
prescription drug to a patient
, except in accordance with the provisions of Section
58-17b-620[,] or as may be otherwise legally permissible;
(d) failing as the nurse accountable for directing nursing practice of an agency to verify any of the following:
(i) that standards of nursing practice are established and carried out;
(ii) that safe and effective nursing care is provided to patients;
(iii) that guidelines exist for the organizational management and management of human resources needed for safe and effective nursing care to be provided to patients; or
(iv) that the nurses employed by the agency have the knowledge, skills, ability and current competence to carry out the requirements of their jobs;
(e) engaging in sexual contact with a patient surrogate concurrent with the nurse/patient relationship unless the nurse affirmatively shows by clear and convincing evidence that the contact:
(i) did not result in any form of abuse or exploitation of the surrogate or patient; and
(ii) did not adversely alter or affect in any way:
(A) the nurse's professional judgment in treating the patient;
(B) the nature of the nurse's relationship with the surrogate; or
(C) the nature of the nurse's relationship with the patient;
(f) engaging in disruptive behavior in the practice of nursing;
(g) prescribing to oneself any controlled
substance drug, in violation of Subsection R156-37-502(1)(a);[ and]
(h) violating any federal or state law relating to controlled substances, including self-administering any controlled substance which is not lawfully prescribed by another licensed practitioner having authority to prescribe the drug, in violation of Section R156-37-502;
(i) as an APRN, failing to discuss the risks of using an opiate with a patient or the patient's guardian before issuing an initial opiate prescription in accordance with Section 58-37-19;
(j) as an APRN, violating a provision of Title 26, Chapter 61a, Utah Medical Cannabis Act; and
(k) failing to practice within limits of competency, in violation of Section 58-31b-801.
(2) In accordance with a prescribing practitioner's order and an IHP, a registered nurse who, in reliance on a school's policies or the delegation rule as provided in Sections R156-31b-701 and R156-31b-701a, delegates or trains an unlicensed assistive person to administer medications under Sections 53A-11-601, R156-31b-701 and R156-31b-701a, shall not be considered to have engaged in unprofessional conduct for inappropriate delegation.
KEY: licensing, nurses
Date of Enactment or Last Substantive Amendment: [
August 22,
]2019
Notice of Continuation: January 8, 2018
Authorizing, and Implemented or Interpreted Law: 58-31b-101; 58-1-106(1)(a); 58-1-202(1)(a)
Additional Information
More information about a Notice of Proposed Rule is available online.
The Portable Document Format (PDF) version of the Bulletin is the official version. The PDF version of this issue is available at https://rules.utah.gov/publicat/bull_pdf/2019/b20191101.pdf. The HTML edition of the Bulletin is a convenience copy. Any discrepancy between the PDF version and HTML version is resolved in favor of the PDF version.
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For questions regarding the content or application of this rule, please contact Jeff Busjahn at the above address, by phone at 801-530-6789, by FAX at 801-530-6511, or by Internet E-mail at jbusjahn@utah.gov. For questions about the rulemaking process, please contact the Office of Administrative Rules.