DAR File No. 27358

Commerce, Occupational and Professional Licensing

R156-1

General Rules of the Division of Occupational and Professional Licensing

NOTICE OF 120-DAY (EMERGENCY) RULE

DAR File No.: 27358
Filed: 08/24/2004, 08:30
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The proposed amendments add provisions to allow the prescribing of certain drugs by physicians via the Internet thus implementing Subsection 58-1-501(4) which was amended during the 2004 legislative session in S.B. 114. (DAR NOTE: S.B. 114 is found at UT L 2004 Ch 280, and was effective 07/01/2004.)

Summary of the rule or change:

In Section R156-1-102, added a definition for "branching questionnaire" which is used in Section R156-1-601. Section R156-1-601 is a new section that is being added which establishes the protocols for medical online assessment, diagnosis, and prescribing. (DAR NOTE: A corresponding amendment is under DAR No. 27377 in this issue.)

State statutory or constitutional authorization for this rule:

Subsections 58-1-106(1)(a) and 58-1-501(4), and Section 58-1-308

Anticipated cost or savings to:

the state budget:

The Division will incur costs of approximately $50 to reprint the rule as a result of this emergency rule filing. Any costs incurred will be absorbed in the Division's current budget.

local governments:

Emergency amendments do not apply to local governments.

other persons:

The Division does not foresee any costs or savings associated with this emergency rule filing except that the changes will allow a company which has operated in Utah under a consent agreement to continue to provide their services. If the proposed changes are not adopted via an emergency rule filing, that company may have to cease and desist their services until the changes may be adopted through a regular rule filing, thus creating a significant adverse effect on their financial welfare.

Compliance costs for affected persons:

The Division does not foresee any costs or savings associated with this emergency rule filing except that the changes will allow a company which has operated in Utah under a consent agreement to continue to provide their services. If the proposed changes are not adopted via an emergency rule filing, that company may have to cease and desist their services until the changes may be adopted through a regular rule filing, thus creating a significant adverse effect on their financial welfare.

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

This emergency rule filing establishes standards of practice for online assessment and diagnosis as authorized by recent statutory amendments. No additional fiscal impact to businesses is foreseen beyond those previously addressed by the Utah Legislature in its passage of the amendments to Section 58-1-501. Klarice A. Bachman, Executive Director

Emergency rule reason and justification:

The Division of Occupational and Professional Licensing entered into a Consent Agreement with PCM Venture I that allows a physician licensed in Utah to prescribe specific legend drugs to Utahns based on a branching health questionnaire. If PCM Venture I was required to cease and desist from providing services, the economic effect would be great and would create a threat to their economic welfare. The Division believed that the statute, as written, would allow the existing Consent Agreement to carry forth without and before implementing rules specific to Subsection 58-1-501(4).

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

Direct questions regarding this rule to:

Laura Poe at the above address, by phone at 801-530-6789, by FAX at 801-530-6511, or by Internet E-mail at lpoe@utah.gov

This rule is effective on:

08/24/2004

Authorized by:

J. Craig Jackson, Director

RULE TEXT

R156. Commerce, Occupational and Professional Licensing.

R156-1. General Rules of the Division of Occupational and Professional Licensing.

R156-1-102. Definitions.

In addition to the definitions in Title 58, as used in Title 58 or these rules:

(1) "Active and in good standing" means a licensure status which allows the licensee full privileges to engage in the practice of the occupation or profession subject to the scope of the licensee's license classification.

(2) "Aggravating circumstances" means any consideration or factors that may justify an increase in the severity of an action to be imposed upon an applicant or licensee.

(3) "Branching questionnaire", as used in Section R156-1-601, means an adaptive, progressive inquiry used by a physician to determine a health history and assessment, and serves as the basis for a diagnosis.

([3]4) "Cancel" or "cancellation" means nondisciplinary action by the division to rescind, repeal, annul, or void a license issued in error. Such action includes rescinding a license issued to an applicant whose payment of the required application fee is dishonored when presented for payment.

([4]5) "Charges" means the acts or omissions alleged to constitute either unprofessional or unlawful conduct or both by a licensee, which serve as the basis to consider a licensee for inclusion in the diversion program authorized in Section 58-1-404.

([5]6) "Denial of licensure" means action by the division refusing to issue a license to an applicant for initial licensure, renewal of licensure, reinstatement of licensure or relicensure.

([6]7) "Disciplinary action" means adverse licensure action by the division under the authority of Subsections 58-1-401(2)(a) through (2)(b).

([7]8) "Diversion agreement" means a formal written agreement between a licensee, the division, and a diversion committee, outlining the terms and conditions with which a licensee must comply as a condition of entering in and remaining under the diversion program authorized in Section 58-1-404.

([8]9) "Diversion committees" mean diversion advisory committees authorized by Subsection 58-1-404(2)(a)(i) and created under Subsection R156-1-404a.

([9]10) "Duplicate license" means a license reissued to replace a license which has been lost, stolen, or mutilated.

([10]11) "Emergency review committees" mean emergency adjudicative proceedings review committees created by the division under the authority of Subsection 58-1-108(2).

([11]12) "Expire" or "expiration" means the automatic termination of a license which occurs:

(a) at the expiration date shown upon a license if the licensee fails to renew the license before the expiration date; or

(b) prior to the expiration date shown on the license:

(i) upon the death of a licensee who is a natural person;

(ii) upon the dissolution of a licensee who is a partnership, corporation, or other business entity; or

(iii) upon the issuance of a new license which supersedes an old license, including a license which:

(A) replaces a temporary license;

(B) replaces a student or other interim license which is limited to one or more renewals or other renewal limitation; or

(C) is issued to a licensee in an upgraded classification permitting the licensee to engage in a broader scope of practice in the licensed occupation or profession.

([12]13) "Inactive" or "inactivation" means action by the division to place a license on inactive status in accordance with Sections 58-1-305 and R156-1-305.

([13]14) "Investigative subpoena authority" means, except as otherwise specified in writing by the director, the division enforcement counsel, or if the division enforcement counsel is unable to so serve for any reason, the assistant director, or if both the division enforcement counsel and the assistant director are unable to so serve for any reason, the department enforcement counsel.

([14]15) "License" means a right or privilege to engage in the practice of a regulated occupation or profession as a licensee.

([15]16) "Limit" or "limitation" means nondisciplinary action placing either terms and conditions or restrictions or both upon a license:

(a) issued to an applicant for initial licensure, renewal or reinstatement of licensure, or relicensure; or

(b) issued to a licensee in place of the licensee's current license or disciplinary status.

([16]17) "Mitigating circumstances" means any consideration or factors that may justify a reduction in the severity of an action to be imposed upon an applicant or licensee.

([17]18) "Nondisciplinary action" means adverse licensure by the division under the authority of Subsections 58-1-401(1) or 58-1-401(2)(c) through (2)(d).

([18]19) "Peer committees" mean advisory peer committees to boards created by the legislature in Title 58 or by the division under the authority of Subsection 58-1-203(1)(f).

([19]20) "Private reprimand" means disciplinary action to formally reprove or censure a licensee for unprofessional or unlawful conduct, with the documentation of the action being classified as a private record.

([20]21) "Probation" means disciplinary action placing terms and conditions upon a license;

(a) issued to an applicant for initial licensure, renewal or reinstatement of licensure, or relicensure; or

(b) issued to a licensee in place of the licensee's current license or disciplinary status.

([21]22) "Public reprimand" means disciplinary action to formally reprove or censure a licensee for unprofessional or unlawful conduct, with the documentation of the action being classified as a public record.

([22]23) "Regulatory authority" as used in Subsection 58-1-501(2)(d) means any governmental entity who licenses, certifies, registers, or otherwise regulates persons subject to its jurisdiction, or who grants the right to practice before or otherwise do business with the governmental entity.

([23]24) "Reinstate" or "reinstatement" means to activate an expired license or to restore a license which is restricted, as defined in Subsection (26)(b), or is suspended, or placed on probation, to a lesser restrictive license or an active in good standing license.

([24]25) "Relicense" or "relicensure" means to license an applicant who has previously been revoked or has previously surrendered a license.

([25]26) "Remove or modify restrictions" means to remove or modify restrictions, as defined in Subsection (26)(a), placed on a license issued to an applicant for licensure.

([26]27) "Restrict" or "restriction" means disciplinary action qualifying or limiting the scope of a license:

(a) issued to an applicant for initial licensure, renewal or reinstatement of licensure, or relicensure in accordance with Section 58-1-304; or

(b) issued to a licensee in place of the licensee's current license or disciplinary status.

([27]28) "Revoke" or "revocation" means disciplinary action by the division extinguishing a license.

([28]29) "Suspend" or "suspension" means disciplinary action by the division removing the right to use a license for a period of time or indefinitely as indicated in the disciplinary order, with the possibility of subsequent reinstatement of the right to use the license.

([29]30) "Surrender" means voluntary action by a licensee giving back or returning to the division in accordance with Section 58-1-306, all rights and privileges associated with a license issued to the licensee.

([30]31) "Temporary license" or "temporary licensure" means a license issued by the division on a temporary basis to an applicant for initial licensure, renewal or reinstatement of licensure, or relicensure in accordance with Section 58-1-303.

([31]32) "Unprofessional conduct" as defined in Title 58 is further defined, in accordance with Subsection 58-1-203(1)(e), in Section R156-1-502.

([32]33) "Warning or final disposition letters which do not constitute disciplinary action" as used in Subsection 58-1-108(3) mean letters which do not contain findings of fact or conclusions of law and do not constitute a reprimand, but which may address any or all of the following:

(a) division concerns;

(b) allegations upon which those concerns are based;

(c) potential for administrative or judicial action; and

(d) disposition of division concerns.

R156-1-601. Online Assessment, Diagnosis and Prescribing Protocols.

(1) In accordance with Subsection 58-1-501(4), a person licensed to prescribe under this title may prescribe legend drugs to a person located in this state following an online assessment and diagnosis in accordance with the following conditions:

(a) the prescribing practitioner is licensed in good standing in this state;

(b) an assessment and diagnosis is based upon a comprehensive health history and an assessment tool that requires the patient to provide answers to all the required questions and does not rely upon default answers, such as a branching questionnaire;

(c) only includes legend drugs and may not include controlled substances;

(d) the practice is authorized in a consent agreement signed by the Division and the practitioner and approved by a panel comprised of three board members from the Physicians Licensing Board or the Osteopathic Physician and Surgeon's Licensing Board and three members from the Utah State Board of Pharmacy. The consent agreement shall include:

(i) the specific name of the drug or drugs approved to be prescribed;

(ii) the policies and procedures that address patient confidentiality;

(iii) a method for electronic communication by the physician and patient;

(iv) a mechanism for the Division to be able to conduct audits of the website and records to ensure an assessment and diagnosis has been made prior to prescribing any medications; and

(v) a mechanism for the physician to have ready access to all patients' records.

KEY: diversion programs, licensing, occupational licensing

August 24, 2004

Notice of Continuation May 2, 2002

58-1-106(1)(a)

58-1-308

58-1-501(4)

ADDITIONAL INFORMATION

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For questions regarding the content or application of this rule, please contact Laura Poe at the above address, by phone at 801-530-6789, by FAX at 801-530-6511, or by Internet E-mail at lpoe@utah.gov

For questions about the rulemaking process, please contact the Division of Administrative Rules (801-538-3764). Please Note: The Division of Administrative Rules is NOT able to answer questions about the content or application of these administrative rules.