A N
A C T
RELATING TO HEALTH
AND SAFETY -- UNLICENSED HEALTH CARE PRACTICES
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Introduced By: Representative Arthur J. Corvese |
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Date Introduced: January 09, 2002 |
It is enacted
by the General Assembly as follows:
SECTION 1. Title 23 of the General Laws entitled "Health and
Safety" is hereby amended by adding thereto the following chapter:
CHAPTER 74
UNLICENSED HEALTH CARE PRACTICES
(1)
"Director" or "director of health" means the director of
the department of health or the director's designee;
(2)
"Unlicensed health care client" means an individual who receives
services from an unlicensed health care practitioner;
(3)
"Unlicensed health care practices" means the broad domain of
unlicensed healing methods and treatments, including, but not limited to: (i)
acupressure; (ii) Alexander technique; (iii) aroma therapy; (iv) ayurveda; (v)
cranial sacral therapy; (vi) crystal therapy; (vii) detoxification practices
and therapies; (viii) energetic healing; (ix) rolfing; (x) Gerson therapy and
colostrum therapy; (xi) therapeutic touch; (xii) herbology or herbalism; (xiii)
polarity therapy; (xiv) homeopathy; (xv) nondiagnostic iridology; (xvi) body
work; (xvii) reiki; (xviii) mind-body healing practices; (ixx) naturopathy; and
(xx) Qi Gong energy healing. "Unlicensed health care practices" do
not include surgery, x-ray radiation, prescribing, administering, or dispensing
legend drugs and controlled substances, practices that invade the human body by
puncture of the skin, setting fractures, any practice included in the practice
of dentistry, the manipulation or adjustment of articulations of joints, or the
spine, also known as chiropractic medicine as defined in chapter 5-30, the
healing art of acupuncture as defined in chapter 5-37.2, or practices that are
permitted under section 5-37-15 or section 5-34-31(6).
(4)
"Unlicensed health care practitioner" means a person who:
(i) is not
licensed by a health-related licensing board or the director of health; or
holds a license issued by a health-related licensing board or the department of
health in this state, but does not hold oneself out to the public as being
licensed or registered by the director or a health-related licensing board when
engaging in unlicensed health care;
(ii) has not
had a license issued by a health-related licensing board or the director of
health revoked or suspended without reinstatement unless the right to engage in
unlicensed health care practices has been established by order of the director
of health;
(iii) is
engaging in unlicensed health care practices; and
(iv) is providing
unlicensed health care services for remuneration or is holding oneself out to
the public as a practitioner of unlicensed health care practices.
(b) This
chapter does not apply to, control, prevent, or restrict the practice, service,
or activity of lawfully marketing or distributing food products, including
dietary supplements as defined in the federal dietary supplement health and
education act, educating customers about such products, or explaining the uses
of such products. Under Rhode Island law, an unlicensed health care
practitioner may not provide a medical diagnosis.
(c) A health
care practitioner, licensed or registered by the director or a health-related
licensing board, who engages in unlicensed health care while practicing under
the practitioner's license or registration, shall be regulated by and be under
the jurisdiction of the applicable health-related licensing board with regard
to the unlicensed health care practices.
(d) Subject
to the provisions of this chapter, persons in Rhode Island are authorized to
practice as unlicensed health care practitioners and receive remuneration for
their services.
23-74-2. Maltreatment of
minors prohibited. -
Nothing in this chapter shall restrict the ability of a local law enforcement
agency or the director of the department of children, youth and families, to
take action regarding the maltreatment of minors. A parent who obtains
unlicensed health care for the parent's minor child is not relieved of the duty
to seek necessary medical care consistent with the requirements of the general
laws. A complementary or alternative health care practitioner who is providing
services to a child shall be subject to the reporting provisions of chapter
40-11 entitled "Abused and Neglected Children."
23-74-3. Professional accountability. - The department shall maintain
and keep current a file containing the reports and complaints filed against
unlicensed health care practitioners within the director's jurisdiction. Each
complaint filed with the department must be investigated.
23-74-4. Prohibited conduct. - The director may impose
disciplinary action as described in this chapter against any unlicensed health
care practitioner. The following conduct is prohibited and is grounds for
disciplinary action:
(1)
Conviction of a crime, including a finding or verdict of guilt, and admission
of guilt, or a no contest plea, in any court in Rhode Island or any other
jurisdiction in the United States, reasonably related to engaging in health
care practices. Conviction, as used in this subdivision, includes a conviction
of an offense which, if committed in this state, would be deemed a felony or
misdemeanor, without regard to its designation elsewhere, or a criminal
proceeding where a finding or verdict of guilty is made or returned, but the
adjudication of guilt is either withheld or not entered.
(2) Engaging
in sexual contact with an unlicensed health care client, engaging in contact
that may be reasonably interpreted by a client as sexual or engaging in sexual
exploitation of a client.
(3)
Advertising that is false, fraudulent, deceptive, or misleading.
(4) Conduct
likely to deceive, defraud, or harm the public or demonstrating a willful or
careless disregard for the health or safety of an unlicensed health care client
in which case, proof of actual injury need not be established.
(5)
Adjudication as mentally incompetent or as a person who is dangerous to self or
adjudicated as any of the following: chemically dependent, mentally ill, mentally
retarded, mentally ill and dangerous to the public, or as a sexual psychopathic
personality or sexually dangerous person.
(6) Inability
to engage in unlicensed health care practices with reasonable safety to
unlicensed health care clients.
(7) Dependence
upon controlled substances, habitual drunkenness or engaging in unlicensed
health care practices while intoxicated or incapacitated by the use of drugs.
(8) Revealing
a communication from, or relating to, an unlicensed health care client except
when otherwise required or permitted by law.
(9) Failure
to comply with an unlicensed health care client's request to furnish a
unlicensed health care client record or report required by law.
(10)
Splitting fees or promising to pay a portion of a fee to any other professional
other than for services rendered by the other professional to the unlicensed
health care client.
(11) Engaging
in abusive or fraudulent billing practices, including violations of the federal
Medicare and Medicaid laws or state medical assistance laws.
(12)
Obtaining money, property, or services from an unlicensed health care client,
other than reasonable fees for services provided to the client, through the use
of undue influence, harassment, duress, deception, or fraud.
(13) Failure
to provide an unlicensed health care client with a copy of the client bill of
rights or violation of any provision of the client bill of rights.
(14)
Violating any order issued by the director.
(15) Failure
to comply with any provision of any rules adopted by the director.
(16) Failure
to comply with any additional disciplinary grounds established by the director
by rule.
(17)
Revocation, suspension, restriction, limitation, or other disciplinary action
against any health care license, certificate, registration, or right to
practice of the unlicensed health care practitioner in this or another state or
jurisdiction for offenses that would be subject to disciplinary action in this
state or failure to report to the department that charges regarding the
practitioner's license, certificate, registration, or right of practice have
been brought in this or another state or jurisdiction.
(18) False or
misleading use of the title "doctor," "Dr.",
"physician" alone or in combination with any other words, letters, or
insignia to describe the unlicensed health care practices the practitioner
provides.
23-74-5. Less customary approach. - The fact that a health care
practice may be a less customary approach to health care shall not constitute
the basis of a disciplinary action per se.
23-74-6. Evidence in
actions. - In
any disciplinary action alleging a professional violation of the provisions of
this chapter, a copy of the judgment or proceeding under the seal of the court
administrator or clerk of the administrative agency that entered the same is
admissible into evidence without further authentication and constitutes prima
facie evidence of its contents.
23-74-7. Examination access of medical
data. -
The director may require an unlicensed practitioner to undergo a physical or
psychiatric examination by a physician acceptable to the director from a list
provided to the practitioner if probable cause exists to believe that
allegations of misconduct against him or her are caused by an impairment which
has directly affected his or her ability to conduct his or her practice
professionally. In such circumstances, the director shall also be entitled to
obtain confidential health care information of the practitioner without the
practitioner's consent. The director may not discriminate on the basis of
disability in the administration of this section, nor subject qualified
individuals with disabilities to any discrimination on the basis of a
disability. All decisions of the director shall be based on the allegation of
unprofessional conduct and not due to probable cause of the conduct being
related to the disability of the practitioner. An unlicensed health care
practitioner affected under this section shall at reasonable intervals be given
an opportunity to demonstrate that the practitioner can resume the provision of
health care practices with reasonable safety to clients. In any proceeding
under this section, neither the record of proceedings nor the orders entered by
the director shall be used against an unlicensed health care practitioner in
any other proceeding.
23-74-8. Disciplinary actions. - Forms of disciplinary action.
When the director finds that an unlicensed health care practitioner has
violated any provision of this chapter, the director may take one or more of
the following actions, only against the individual practitioner:
(1) revoke
the right to practice;
(2) suspend
the right to practice;
(3) impose
limitations or conditions on the practitioner's provision of unlicensed health
care practices, impose rehabilitation requirements, or require practice under
supervision;
(4) assess
against the practitioner the administrative costs of the proceedings instituted
against him or her under this chapter; provided, that this assessment does not
exceed ten thousand dollars ($10,000);
(5) censure
or reprimand the practitioner;
(6) any other
action justified by the case.
23-74-9. Discovery -- Subpoenas. - In all matters relating to the
lawful activities of the department, the director may issue subpoenas and
compel the attendance of witnesses and the production of all necessary papers,
books, records, documents, and other evidentiary material. Any person failing
or refusing to appear or testify regarding any matter about which the person
may be lawfully questioned or failing to produce any papers, books, records,
documents or other evidentiary materials in the matter to be heard, after
having been required by order of the director or by a subpoena of the director
to do so may, upon application to the district court in any district, be
ordered to comply with the order or subpoena. The director may administer oaths
to witnesses or take their affirmation. Depositions may be taken within or
without the state in the manner provided by law for the taking of depositions
in civil actions. A subpoena or other process may be served upon a person it
names anywhere within the state by any officer authorized to serve subpoenas or
other process in civil actions in the same manner as prescribed by law for
service of process issued out of the district court of this state.
23-74-10. Hearings. - (a) If the director proposes to
take action against the practitioner as described in this chapter and pursuant
to section 23-1-22, the director must first notify the practitioner against
whom the action is proposed to be taken and provide the practitioner with an
opportunity to request a hearing. If the practitioner does not request a
hearing by notifying the director within thirty (30) days after service of the
notice of the proposed action, the director may proceed with the action without
a hearing. If a hearing is requested, a hearing shall be scheduled by the
director as soon as is practicable. The director shall, issue a notice of a
hearing of the charges, which shall specify the time and place of the hearing
and notify the accused that he or she may file with the director a written
response within twenty (20) days of the date of service. The notice shall also
notify the accused that a stenographic record of the proceedings will be kept,
that he or she will have the opportunity to appear personally and to have
counsel present with the right to produce witnesses and evidence in his or her
own behalf, to cross examine witnesses, to examine any documentary evidence
that may be produced against him or her and to have subpoenas issued by the
director.
(b) The
director may at the director's discretion reinstate the right to practice and
may impose any disciplinary measure listed under this chapter. Provided, the
time limits set forth herein shall control over any inconsistent or contrary
provisions in section 23-1-22.
23-74-11. Suspension. - (a) Penalties in suspension. In
addition to any other remedy provided by law, the director may, acting through
a person to whom the director has delegated this authority and without a
hearing, suspend the right of an unlicensed health care practitioner to
practice if the director's delegate finds that the practitioner has violated a
statute or rule that the director is empowered to enforce and continued
practice by the practitioner would create an immediate risk of harm to others.
The suspension is in effect upon service of a written order on the practitioner
specifying the statute or rule violated. The order remains in effect until the
director issues a final order in the matter after a hearing or upon agreement
between the director and the practitioner. Service of the order is effective if
the order is served on the practitioner or counsel of record personally or by
first class mail. Within ten (10) days of service of the order, the director
shall hold a hearing. Within five (5) working days after the hearing, the
director shall issue an order.
(b) All
findings in hearings under this chapter shall be made by clear and convincing
evidence.
(c) Any
practitioner aggrieved by an order of the director may appeal such order
pursuant to the provisions of chapter 42-35, of the administrative procedures
act.
(d) Automatic
suspension. The right of an unlicensed health care practitioner to practice is
automatically suspended if: (1) a guardian of an unlicensed health care
practitioner is appointed by order of a court of competent jurisdiction; or (2)
the practitioner is committed by order of a court. The right to practice
remains suspended until the practitioner is restored to capacity by a court and
upon petition by the practitioner; the director terminates the suspension after
a hearing or upon agreement between the director and the practitioner.
23-74-12. Licensed or regulated
practitioners. - If a practitioner investigated under this chapter is licensed
or registered by the director of health or a health-related licensing board, is
subject to the jurisdiction of the director, and the director determines that
the practitioner has violated any provision of this chapter, the director in
addition to taking disciplinary action under this section:
(1) may, if
the practitioner is licensed or regulated in another capacity by the director,
take further disciplinary action against the practitioner in that capacity; or
(2) shall, if
the practitioner is licensed or registered in another capacity by a
health-related licensing board, report the director's findings under this
section, and may make a nonbinding recommendation that the board take further
action against the practitioner in that capacity.
23-74-13. Additional remedies. - (a) Cease and desist. (1) The
director may issue a cease and desist order to stop a person from violating or
threatening to violate a statute, rule, or order which the department has
issued or is empowered to enforce. The cease and desist order must state the
reason for its issuance and give notice of the person's right to request a
hearing under the provisions of both this chapter and chapter 23-1. If, within
fifteen (15) days of service of the order, the subject of the order fails to
request a hearing in writing, the order is the final order of the director and
is not reviewable by a court or agency.
(2) A hearing
must be initiated by the department not later than thirty (30) days from the
date of the department's receipt of a written hearing request. Within thirty
(30) days of the hearing the director shall issue a final order modifying,
vacating, or making permanent the cease and desist order, as the facts require.
The final order remains in effect until modified or vacated by the director.
(3) When a
request for a stay accompanies a timely hearing request, the director may, in
the director's discretion, grant the stay. If the director does not grant a
requested stay, the director shall refer the request to the superior court
within three (3) working days of receipt of the request. Within ten (10) days
after receiving the request from the director, a superior court judge shall
issue an order to grant or deny the stay.
(4) In the
event of noncompliance with a cease and desist order, the director may
institute a proceeding in superior court to obtain injunctive relief or other
appropriate relief, including a civil penalty payable to the department not
exceeding ten thousand dollars ($10,000) for each separate violation.
(5)
Injunctive relief. In addition to any other remedy provided by law, including
the issuance of a cease and desist order under subsection (a), the director may
in his or her own name, bring an action in superior court for injunctive relief
to restrain an unlicensed health care practitioner from a violation or
threatened violation of any statute, rule, or order which the director is
empowered to regulate, enforce, or issue.
(b)
Additional powers. The issuance of a cease and desist order or injunctive
relief granted under this section does not relieve a practitioner from criminal
prosecution by a competent authority or from disciplinary action by the
director.
23-74-14. Unlicensed health care client bill
of rights. -
(a) Scope. All unlicensed health care practitioners shall provide to each
unlicensed health care client prior to providing treatment a written copy of
the unlicensed health care client bill of rights. A copy must also be posted in
a prominent location in the office of the unlicensed health care practitioner. Reasonable
accommodations shall be made for those clients who cannot read or who have
communication impairments and those who do not read or speak English. The
unlicensed health care client bill of rights shall include the following.
(1) the name,
unlicensed health care title, business address, and telephone number of the
unlicensed health care practitioner;
(2) the
degrees, training, experience, or other qualifications of the practitioner
regarding the unlicensed health care being provided, followed by the following
statement in bold print:
"The
state of Rhode Island has not adopted any educational and training standards
for unlicensed health care practitioners. This statement of credentials is for
information purposes only.
Under Rhode
Island law, an unlicensed health care practitioner may not provide a medical
diagnosis. If a client desires a diagnosis from a licensed physician,
chiropractor, or acupuncture practitioner, or services from a physician,
chiropractor, nurse, osteopath, physical therapist, dietician, nutritionist,
acupuncture practitioner, athletic trainer, or any other type of health care
provider, the client may seek such services at any time";
(3) the name,
business address, and telephone number of the practitioner's supervisor, if any;
(4) notice
that an unlicensed health care client has the right to file a complaint with
the practitioner's supervisor, if any, and the procedure for filing complaints;
(5) the name,
address, and telephone number of the department and notice that a client may file
complaints with the department;
(6) the
practitioner's fees per unit of service, the practitioner's method of billing
for such fees, the names of any insurance companies that agreed to reimburse
the practitioner, or health maintenance organizations with whom the
practitioner contracts to provide service, whether the practitioner accepts
Medicare, medical assistance, or general assistance medical care, and whether
the practitioner is willing to accept partial payment, or to waive payment, and
in what circumstances;
(7) a
statement that the client has a right to reasonable notice of changes in
services or charges;
(8) a brief
summary, in plain language, of the theoretical approach used by the
practitioner in providing services to clients;
(9) notice
that the client has a right to complete and current information concerning the
practitioner's assessment and recommended service that is to be provided,
including the expected duration of the service to be provided;
(10) a
statement that clients may expect to be free from verbal, physical, or sexual
abuse by the practitioner;
(11) a
statement that client records and transactions with the practitioner are
confidential, unless release of these records is authorized in writing by the
client, or otherwise provided by law;
(12) a
statement of the client's right to be allowed access to records and written
information from records in accordance with the provisions of this chapter;
(13) a
statement that the client has the right to choose freely among available
practitioners and to change practitioners after services have begun, within the
limits of health insurance, medical assistance, or other health programs;
(14) a
statement that the client has a right to a coordinated transfer when there will
be a change in the provider of services;
(15) a
statement that the client may refuse services or treatment, unless otherwise
provided by law; and
(16) a
statement that the client may assert the client's rights without retaliation.
(b)
Acknowledgement by client. Prior to the provision of any service, an unlicensed
health care client must sign a written statement attesting that the client has
received the unlicensed health care client bill of rights.
SECTION 2. This act shall take effect upon passage.