Executive Summary. Utah Physician Licensure Statute

Transcription

1 Executive Summary Utah Physician Licensure Statute Licensure Requirements: Those wishing to practice medicine in the state of Utah need to obtain a full medical license. However, the Utah Licensure Statute exempts practitioners licensed in other states from the full licensure requirement, allowing them to practice medicine in Utah for a limited duration of time for a specific event. Licensure Reciprocity: The Utah Licensure Statute does allow for license reciprocity between states under specific circumstances. Licensure Exceptions: The Utah Licensure Statute allows for the following common exceptions: Consultative Services: Physicians are able to offer consultative services without being required to receive full medical licensure. Military Exception: Those physicians, licensed in any one of the 50 states, are permitted to administer care to military members, as either a civilian contract employee or a military physician officer, without having to first receive additional licensure. Emergency Exception: A physician is permitted to administer care to a person in an emergency situation, regardless if that physician is licensed in Utah. Domestic administration of family remedies. Internet Prescribing of Medications: The Utah Licensure Administrative Code allows licensed practitioners to prescribe only legend drugs following an online questionnaire, provided that the online assessment and diagnosis is based upon a comprehensive health history that requires the patient to provide answers to all the required questions and does not rely upon default answers. Controlled substances may not be prescribed via the Internet.

2 For more licensure information, please contact the Utah Division of Occupational and Professional Licensing at (801) or click here for the website. UTAH PHYSICIAN LICENSURE STATUTE Title 58. Occupations and Professions Chapter 1. Division of Occupational and Professional Licensing Act License Application Licensing Procedure 1 According to the Federation of State Medical Boards, the 10 th Amendment police power grants states the right to regulate the practice of medicine. (1) (a) Each license applicant shall apply to the division in writing upon forms available from the division. Each completed application shall contain documentation of the particular qualifications required of the applicant, shall include the applicant's Social Security number, shall be verified by the applicant, and shall be accompanied by the appropriate fees. (b) An applicant's Social Security number is a private record under Subsection 63G-2-302(1)(h). (2) (a) A license shall be issued to an applicant who submits a complete application if the division determines that the applicant meets the qualifications of licensure. 2 (b) A written notice of additional proceedings shall be provided to an applicant who submits a complete application, but who has been, is, or will be placed under investigation by the division for conduct directly bearing upon the applicant's qualifications for licensure, if the outcome of additional proceedings is required to determine the division's response to the application. 1 In State v. Hoffman, 1987, 733 P.2d 502, the Court held that the right to practice medicine is not constitutionally superior to state's power to impose comprehensive and rigid regulations on practice. 2 In Carbaugh v. Asbestos Corp. Ltd., 2007, 167 P.3d 1063, 585 Utah Adv. Rep. 13, 2007 UT 65, the Court explained that the the Utah State Medical Board requires physicians to be licensed before practing medicine in order to protect the people from Utah from the unrestrained practice of medicine. CTeL Comment: For Example, Physician A is licensed in Utah, meaning that the Utah State Medical Board has reviewed Physician A's academic, personal, and professional background and has deemed her competent to practice medicine in Utah. This practice is considered to be a good public policy measure because it helps shield the people living in Utah from incompetent medical care.

3 (c) A written notice of denial of licensure shall be provided to an applicant who submits a complete application if the division determines that the applicant does not meet the qualifications of licensure. (d) A written notice of incomplete application and conditional denial of licensure shall be provided to an applicant who submits an incomplete application. This notice shall advise the applicant that the application is incomplete and that the application is denied, unless the applicant corrects the deficiencies within the time period specified in the notice and otherwise meets all qualifications for licensure. (3) Before any person is issued a license under this title, all requirements for that license as established under this title and by rule shall be met. (4) If all requirements are met for the specific license, the division shall issue the license License by Endorsement The division may issue a license without examination to a person who has been licensed in any state, district, or territory of the United States or in any foreign country, whose education, experience, and examination requirements are, or were at the time the license was issued, equal to those of this state. Before any person may be issued a license under this section, he shall produce satisfactory evidence of his qualifications, identity, and good standing in his occupation or profession. In Call v. Billings, 104 Utah 429, 140 P.2d 640 (1943), an application for a Utah license to practice naturopathy was based upon an Arizona license to practice naturopathy and the Arizona State Board of Naturopathic Examiners certificate of good standing of the applicant as an Arizona naturopath. Notwithstanding these Arizona qualifications, the applicant did not meet the requirements of the Utah statutes, and thus application was properly denied. 3 Occupational and professional licensing statutes were not intended to establish unreasonable boundaries between professions and occupations subject to license, but to insure the public against imposition by persons who are not qualified by training and experience to render successfully and efficiently the services they offer to perform for compensation. Smith v. American Packing & Provision Co., 102 Utah 351, 130 P.2d 951 (1942).

4 Temporary License (1) (a) The division may issue a temporary license to a person who has met all license requirements except the passing of an examination. In this case: (i) the licensee shall take the next available examination; and The Utah State Medical Board may issue a temporary medical license to an incoming physician who already holds a medical license in a state whose licensure requirements are equal or greater than the requirements of Utah. (ii) the temporary license automatically expires upon release of official examination results if the applicant fails the examination. (b) The division may issue a temporary license to a person licensed in another state or country who is in Utah temporarily to teach or assist a Utah resident licensed to practice an occupation or profession under this title. (c) The division may issue a temporary license to a person licensed in another state who met the requirements for licensure in that state, which were equal to or greater than the requirements for licensure of this state at the time the license was obtained in the other state, upon a finding by the division, in collaboration with the appropriate board, that the issuance of a temporary license is necessary to or justified by: (i) a local or national emergency or any governmental action causing an unusual circumstance that might be reasonably considered to materially jeopardize the public health, safety, or welfare if a temporary license is not issued; (ii) a lack of necessary available services in any community or area of the state from an occupation or profession licensed under this title, if the lack of services might be reasonably considered to materially jeopardize the public health, safety, or welfare if a temporary license is not issued; or (iii) a need to first observe an applicant for licensure in this state in a monitored or supervised practice of the applicant's occupation or profession before a decision is made by the division either to grant or deny the applicant a regular license.

5 (2) The division may not issue a temporary license to a person who qualifies for one under Subsection (1)(a) more than three consecutive times within the three-year period immediately following the issuance of the first temporary license. (3) The division may not issue a temporary license to a person solely because there is a competitive advantage enjoyed or a competitive disadvantage suffered by any party caused by the absence of a licensed person, unless in addition there is or will be a material risk presented to the public health, safety, or welfare Exemptions from Licensure Every state allows for some form of licensure exception. However, licensure exceptions vary among states. (1) Except as otherwise provided by statute or rule, the following individuals may engage in the practice of their occupation or profession, subject to the stated circumstances and limitations, without being licensed under this title: An exception, accepted by all 50 states, does NOT require a medical student to obtain full licensure before administering care to a patient, as long as that student is under the supervision of a licensed physician. (a) an individual serving in the armed forces of the United States, the United States Public Health Service, the United States Department of Veterans Affairs, or other federal agencies while engaged in activities regulated under this chapter as a part of employment with that federal agency if the individual holds a valid license to practice a regulated occupation or profession issued by any other state or jurisdiction recognized by the division; 4 All 50 states allow for the military exception. A physician practicing in the military need only be licensed in one state to have licensure reciprocity in all 50 states. (b) a student engaged in activities constituting the practice of a regulated occupation or profession while in training in a recognized school approved by the division to the extent the activities are supervised by qualified faculty, staff, or designee and the activities are a defined part of the training program; (c) an individual engaged in an internship, residency, preceptorship, postceptorship, fellowship, apprenticeship, or on-the-job training program approved by the division while under the supervision of qualified individuals; (d) an individual residing in another state and licensed to practice a regulated occupation or profession in that state, who is called in for a consultation by an 4 In the 1960s, when Americans began exploring space travel, NASA started investing in technology that would allow astronauts to receive care at a distance. This process later became known as telemedicine. Shortly thereafter, the military began using telemedicine to triage medical injuries on the battlefield.

6 individual licensed in this state, and the services provided are limited to that consultation; (e) an individual who is invited by a recognized school, association, society, or other body approved by the division to conduct a lecture, clinic, or demonstration of the practice of a regulated occupation or profession if the individual does not establish a place of business or regularly engage in the practice of the regulated occupation or profession in this state; (f) an individual licensed under the laws of this state, other than under this title, to practice or engage in an occupation or profession, while engaged in the lawful, professional, and competent practice of that occupation or profession; (g) an individual licensed in a health care profession in another state who performs that profession while attending to the immediate needs of a patient for a reasonable period during which the patient is being transported from outside of this state, into this state, or through this state; States often require physicians to be in good moral standing before granting the incoming physician a temporary or permanent medical license. California and Washington are two other states that grant a licensure exemption to physicians tending to an athletic team or group. (h) an individual licensed in another state or country who is in this state temporarily to attend to the needs of an athletic team or group, except that the practitioner may only attend to the needs of the athletic team or group, including all individuals who travel with the team or group in any capacity except as a spectator; (i) an individual licensed and in good standing in another state, who is in this state: (i) temporarily, under the invitation and control of a sponsoring entity; (ii) for a reason associated with a special purpose event, based upon needs that may exceed the ability of this state to address through its licensees, as determined by the division; and (iii) for a limited period of time not to exceed the duration of that event, together with any necessary preparatory and conclusionary periods; and

7 (j) a law enforcement officer, as defined under Section , who: (i) is operating a voice stress analyzer in the course of the officer's full-time employment with a federal, state, or local law enforcement agency; (ii) has completed the manufacturer's training course and is certified by the manufacturer to operate that voice stress analyzer; and (iii) is operating the voice stress analyzer in accordance with Section , regarding deception detection instruments. (2) (a) A practitioner temporarily in this state who is exempted from licensure under Subsection (1) shall comply with each requirement of the licensing jurisdiction from which the practitioner derives authority to practice. (b) Violation of a limitation imposed by this section constitutes grounds for removal of exempt status, denial of license, or other disciplinary proceedings. (3) An individual who is licensed under a specific chapter of this title to practice or engage in an occupation or profession may engage in the lawful, professional, and competent practice of that occupation or profession without additional licensure under other chapters of this title, except as otherwise provided by this title. (4) Upon the declaration of a national, state, or local emergency, a public health emergency as defined in Section 26-23b-102, or a declaration by the President of the United States or other federal official requesting public health-related activities, the division in collaboration with the board may: CTeL Comment: In the case of a national emergency, like bioterrorism or a natural disaster, licensure requirements may be suspended for purposes of rendering care to the public by physicians who are not licensed in the state where the harm occurred. (a) suspend the requirements for permanent or temporary licensure of individuals who are licensed in another state. Individuals exempt under this Subsection (4)(a) are exempt from licensure for the duration of the emergency while engaged in the scope of practice for which they are licensed in the other state; (b) modify, under the circumstances described in this Subsection (4) and Subsection (5), the scope of practice restrictions under this title for individuals who are licensed under this title as:

8 (i) a physician under Chapter 67, Utah Medical Practice Act, or Chapter 68, Utah Osteopathic Medical Practice Act; (ii) a nurse under Chapter 31b, Nurse Practice Act, or Chapter 31c, Nurse Licensure Compact; (iii) a certified nurse midwife under Chapter 44a, Nurse Midwife Practice Act; (iv) a pharmacist, pharmacy technician, or pharmacy intern under Chapter 17b, Pharmacy Practice Act; (v) a respiratory therapist under Chapter 57, Respiratory Care Practices Act; (vi) a dentist and dental hygienist under Chapter 69, Dentist and Dental Hygienist Practice Act; and (vii) a physician assistant under Chapter 70a, Physician Assistant Act; (c) suspend the requirements for licensure under this title and modify the scope of practice in the circumstances described in this Subsection (4) and Subsection (5) for medical services personnel or paramedics required to be certified under Section 26-8a-302; (d) suspend requirements in Subsections 58-17b-620(3) through (6) which require certain prescriptive procedures; (e) exempt or modify the requirement for licensure of an individual who is activated as a member of a medical reserve corps during a time of emergency as provided in Section 26A-1-126; and (f) exempt or modify the requirement for licensure of an individual who is registered as a volunteer health practitioner as provided in Title 26, Chapter 49, Uniform Emergency Volunteer Health Practitioners Act. (5) Individuals exempt under Subsection (4)(c) and individuals operating under modified scope of practice provisions under Subsection (4)(b): (a) are exempt from licensure or subject to modified scope of practice for the duration of the emergency;

9 (b) must be engaged in the distribution of medicines or medical devices in response to the emergency or declaration; and (c) must be employed by or volunteering for: (i) a local or state department of health; or (ii) a host entity as defined in Section For additional guidance on unlawful and unprofessional conduct, see Utah Administrative Code R located at the end of this document Unlawful and Unprofessional Conduct (1) Unlawful conduct means conduct, by any person, that is defined as unlawful under this title and includes: (a) practicing or engaging in, representing oneself to be practicing or engaging in, or attempting to practice or engage in any occupation or profession requiring licensure under this title if the person is: (i) not licensed to do so or not exempted from licensure under this title; or (ii) restricted from doing so by a suspended, revoked, restricted, temporary, probationary, or inactive license; CTeL Comment: For example, Physician A was feeling stressed during work and began drinking on the job. This would be an example of both unprofessional and unlawful conduct where the physician is likely to lose his license for a temporary or permanent period of time. (b) impersonating another licensee or practicing an occupation or profession under a false or assumed name, except as permitted by law; According to the Federation of State Medical Boards, an applicant has a total of three attempts to pass the USMLE Step 3. (c) knowingly employing any other person to practice or engage in or attempt to practice or engage in any occupation or profession licensed under this title if the employee is not licensed to do so under this title; (d) knowingly permitting the person's authority to practice or engage in any occupation or profession licensed under this title to be used by another, except as permitted by law; (e) obtaining a passing score on a licensure examination, applying for or obtaining a license, or otherwise dealing with the division or a licensing board

10 through the use of fraud, forgery, or intentional deception, misrepresentation, misstatement, or omission; or (f) (i) unless Subsection (2)(m) or (4) applies, 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: (A) without prescriptive authority conferred by a license issued under this title, or by an exemption to licensure under this title; (B) 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: The Utah State Medical Board prohibits the use of an online medical questionnaire to administer prescription drugs over the internet. (I) 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; or (II) based on a questionnaire completed by the patient on the internet, or toll-free telephone number, when there exists no other bona fide patient-practitioner relationship; or (C) in violation of Subsection (2)(m), when the licensed person who issued, or aided and abetted another in the issuance of the prescription has violated Subsection (2)(m) on more than 100 prescriptions within a 30 day period of time; and (ii) Subsection (1)(f) does not apply to treatment rendered in an emergency, on-call or cross coverage situation, provided that the person who issues the prescription has prescriptive authority conferred by a license under this title, or is exempt from licensure under this title. (2) Unprofessional conduct means conduct, by a licensee or applicant, that is defined as unprofessional conduct under this title or under any rule adopted under this title and includes: 5 5 Once a professional is certified, the public's interest in his professional performance in treating patients is paramount. The public may appropriately place great reliance on self-governing functions and

11 (a) violating, or aiding or abetting any other person to violate, any statute, rule, or order regulating an occupation or profession under this title; (b) violating, or aiding or abetting any other person to violate, any generally accepted professional or ethical standard applicable to an occupation or profession regulated under this title; (c) engaging in conduct that results in conviction, a plea of nolo contendere, or a plea of guilty or 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 occupation or profession for which the license was issued or is to be issued, bears a reasonable relationship to the licensee's or applicant's ability to safely or competently practice the occupation or profession; (d) 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 same occupation or profession if the conduct would, in this state, constitute grounds for denial of licensure or disciplinary proceedings under Section ; CTeL Comment: For example, Physician A is having difficultly staying awake, so she begins taking illegal narcotics. This example would be a violation of this section. (e) 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 the occupation or profession; (f) practicing or attempting to practice an occupation or profession regulated under this title despite being physically or mentally unfit to do so; standards of the profession. Thus, general statutory standards like unprofessional conduct are acceptable as applied to treatment of patients in measuring professional performance. Vance v. Fordham, 671 P.2d 124 (1983).

12 (g) practicing or attempting to practice an occupation or profession regulated under this title through gross incompetence, gross negligence, or a pattern of incompetency or negligence; (h) practicing or attempting to practice an occupation or profession requiring licensure under this title by any form of action or communication which is false, misleading, deceptive, or fraudulent; 6 (i) practicing or attempting to practice an occupation or profession regulated under this title beyond the scope of the licensee's competency, abilities, or education; (j) practicing or attempting to practice an occupation or profession regulated under this title beyond the scope of the licensee's license; (k) verbally, physically, mentally, or sexually abusing or exploiting any person through conduct connected with the licensee's practice under this title or otherwise facilitated by the licensee's license; (l) acting as a supervisor without meeting the qualification requirements for that position that are defined by statute or rule; (m) unless Subsection (4) applies, issuing, or aiding and abetting in the issuance of, an order or prescription for a drug or device: (i) 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 (ii) based on a questionnaire completed by the patient on the internet, or toll free telephone number when there exists no other bona fide patientpractitioner relationship or bona fide referral by a practitioner involved in an existing patient-practitioner relationship; or (n) violating a provision of Section A person who is not a licensed medical doctor must not hold out to the public that they maintain those qualifications.

13 (3) Subsection (2)(m) does not apply to treatment rendered in an emergency, on-call, or cross coverage situation. (4) Notwithstanding Subsections (1)(f) and (2)(m), the division may permit a person licensed to prescribe under this title to prescribe a legend drug to a person located in this state if the division in collaboration with the appropriate professional board has permitted the specific prescriptive practice of the legend drug by rule. The requirement that physicians and surgeons be licensed in Utah in order to engage in the practice of medicine in Utah is subject to certain exceptions, which is designed to protect the people of Utah from the open and unrestrained practice of medicine. Carbaugh v. Asbestos Corp. Ltd., 167 P.3d 1063, 1066, 585 Utah Adv. Rep. 13 (2007) Licensure Required License Classifications (1) A license is required to engage in the practice of medicine, on or for any person in Utah, as a physician and surgeon, except as specifically provided in Section or (2) The division shall issue to a person who qualifies under this chapter a license in the classification of physician and surgeon. Physicians who wish to practice telemedicine in a state that lacks specific licensure requirements for telehealth providers may be required to seek a full medical license. There are 36 states that require telehealth providers to seek a full medical license in order to practice in that state. Utah is not one of those states Qualifications for Licensure (1) An applicant for licensure as a physician and surgeon, except as set forth in Subsection (2), shall: (a) submit an application in a form prescribed by the division, which may include: (i) submissions by the applicant of information maintained by practitioner data banks, as designated by division rule, with respect to the applicant; and (ii) a record of professional liability claims made against the applicant and settlements paid by or on behalf of the applicant;

14 (b) pay a fee determined by the department under Section 63J-1-504; (c) be of good moral character; (d) provide satisfactory documentation of having successfully completed a program of professional education preparing an individual as a physician and surgeon, as evidenced by having received an earned degree of doctor of medicine from: (i) an LCME accredited medical school or college; or (ii) a medical school or college located outside of the United States or its jurisdictions which at the time of the applicant's graduation, met criteria for LCME accreditation; (e) hold a current certification by the Educational Commission for Foreign Medical Graduates or any successor organization approved by the division in collaboration with the board, if the applicant graduated from a medical school or college located outside of the United States or its jurisdictions; (f) satisfy the division and board that the applicant: CTeL Comment: All states require proof of academic credentials. According to the Federation of State Medical Boards, most states require between one and three years of post graduate training. (i) has successfully completed 24 months of progressive resident training in a program approved by the ACGME, the Royal College of Physicians and Surgeons, the College of Family Physicians of Canada, or any similar body in the United States or Canada approved by the division in collaboration with the board; or (ii) (A) has successfully completed 12 months of resident training in an ACGME approved program after receiving a degree of doctor of medicine as required under Subsection (1)(d); (B) has been accepted in and is successfully participating in progressive resident training in an ACGME approved program

15 All 50 states have some form of English proficiency requirements for the licensure examination. This requirement was created as a public policy measure to ensure that physicians licensed to practice in the United States are proficient in the English language. within Utah, in the applicant's second or third year of postgraduate training; and (C) has agreed to surrender to the division the applicant's license as a physician and surgeon without any proceedings under Title 63G, Chapter 4, Administrative Procedures Act, and has agreed the applicant's license as a physician and surgeon will be automatically revoked by the division if the applicant fails to continue in good standing in an ACGME approved progressive resident training program within the state; (g) pass the licensing examination sequence required by division rule made in collaboration with the board; (h) be able to read, write, speak, understand, and be understood in the English language and demonstrate proficiency to the satisfaction of the board if requested by the board; (i) meet with the board and representatives of the division, if requested, for the purpose of evaluating the applicant's qualifications for licensure; (j) designate: The Utah State Medical Board withholds the right to NOT grant an applicant a medical license. (i) a contact person for access to medical records in accordance with the federal Health Insurance Portability and Accountability Act; and (ii) an alternate contact person for access to medical records, in the event the original contact person is unable or unwilling to serve as the contact person for access to medical records; and (k) establish a method for notifying patients of the identity and location of the contact person and alternate contact person, if the applicant will practice in a location with no other persons licensed under this chapter. (2) An applicant for licensure as a physician and surgeon by endorsement shall: (a) be currently licensed with a full unrestricted license in good standing in any state, district, or territory of the United States;

16 (b) have been actively engaged in the legal practice of medicine in any state, district, or territory of the United States for not less than 6,000 hours during the five years immediately preceding the date of application for licensure in Utah; (c) not have any action pending against the applicant's license; (d) not have a license that was suspended or revoked in any state, unless the license was subsequently reinstated as a full unrestricted license in good standing; and If a physician has had her medical license previously revoked in another state, the Utah State Medical Board withholds the right to deny the physician a medical license. (e) produce satisfactory evidence of the applicant's qualifications, identity, and good standing to the satisfaction of the division in collaboration with the board. (3) An applicant for licensure by endorsement may engage in the practice of medicine under a temporary license while the applicant's application for licensure is being processed by the division, provided: (a) the applicant submits a complete application required for temporary licensure to the division; (b) the applicant submits a written document to the division from: (i) a health care facility licensed under Title 26, Chapter 21, Health Care Facility Licensing and Inspection Act, stating that the applicant is practicing under the invitation of the health care facility; or (ii) two individuals licensed under this chapter, whose license is in good standing and who practice in the same clinical location, both stating that: (A) the applicant is practicing under the invitation of the individual; and (B) the applicant will practice at the same clinical location as the individual;

17 (c) the applicant submits a signed certification to the division that the applicant meets the requirements of Subsection (2); (d) the applicant does not engage in the practice of medicine until the division has issued a temporary license; (e) the temporary license is only issued for and may not be extended beyond the duration of one year from issuance; and (f) the temporary license expires immediately and prior to the expiration of one year from issuance, upon notification from the division that the applicant's application for licensure by endorsement is denied. (4) The division shall issue a temporary license under Subsection (3) within 15 business days after the applicant satisfies the requirements of Subsection (3) Exemptions from Licensure In addition to the exemptions from licensure in Section , the following individuals may engage in the described acts or practices without being licensed under this chapter: (1) an individual rendering aid in an emergency, when no fee or other consideration of value for the service is charged, received, expected, or contemplated; 7 Where a person treats, diagnoses, or advises for some physical ailment for compensation, that a domestic family remedy such as Chinese herbs was administered or advised, does not stand an absolute defense. State v. Yee Foo Lun, 45 Utah 531, 147 P. 488 (1915). (2) an individual administering a domestic or family remedy; All 50 states allow for the emergency exception because it is considered good public policy. (3) (a) (i) a person engaged in the sale of vitamins, health foods, dietary supplements, herbs, or other products of nature, the sale of which is not otherwise prohibited by state or federal law; and (ii) a person acting in good faith for religious reasons, as a matter of conscience, or based on a personal belief, when obtaining or providing 7 CTel Comment: An example of a medical emergency in which a physician is permitted to assist is a car accident on the interstate highway. A physician can render care to save the injured person s life, regardless of where the physician is licensed.

18 any information regarding health care and the use of any product under Subsection (3)(a)(i); and (b) Subsection (3)(a) does not: (i) allow a person to diagnose any human disease, ailment, injury, infirmity, deformity, pain, or other condition; or (ii) prohibit providing truthful and non-misleading information regarding any of the products under Subsection (3)(a)(i); (4) a person engaged in good faith in the practice of the religious tenets of any church or religious belief, without the use of prescription drugs; (5) an individual authorized by the Department of Health under Section , to withdraw blood to determine the alcohol or drug content pursuant to Section 41-6a-523; (6) a medical assistant while working under the direct and immediate supervision of a licensed physician and surgeon, to the extent the medical assistant is engaged in tasks appropriately delegated by the supervisor in accordance with the standards and ethics of the practice of medicine; (7) an individual engaging in the practice of medicine when: A physician is exempted from licensure requirements as long as the physician is in good standing, administers the services on a volunteer basis, and does not accept a fee. (a) the individual is licensed in good standing as a physician in another state with no licensing action pending and no less than ten years of professional experience; (b) the services are rendered as a public service and for a noncommercial purpose; (c) no fee or other consideration of value is charged, received, expected, or contemplated for the services rendered beyond an amount necessary to cover the proportionate cost of malpractice insurance; and (d) the individual does not otherwise engage in unlawful or unprofessional conduct; and

19 (8) an individual providing expert testimony in a legal proceeding. 8 Title 26. Utah Health Code Chapter 18. Medical Assistance Act Telemedicine Reimbursement Rulemaking (1) (a) On or after July 1, 2008, communication by telemedicine is considered face to face contact between a health care provider and a patient under the state's medical assistance program if: (i) the communication by telemedicine meets the requirements of administrative rules adopted in accordance with Subsection (3); and (ii) the health care services are eligible for reimbursement under the state's medical assistance program. (b) This Subsection (1) applies to any managed care organization that contracts with the state's medical assistance program. (2) The reimbursement rate for telemedicine services approved under this section: (a) shall be subject to reimbursement policies set by the state plan; and (b) may be based on: (i) a monthly reimbursement rate; (ii) a daily reimbursement rate; or (iii) an encounter rate. (3) The department shall adopt administrative rules in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, which establish: 8 To qualify for the expert testimony exception to Utah s licensure requirements, an unlicensed individual s practices or acts must be reasonably related to the testimony that they are preparing to give; foreign experts must carefully design their diagnostic activities to produce medical data that will be helpful in preparing their testimony, and they should be careful not to exceed the scope of the exception, leaving to others matters of treatment and disease management not customarily associated with the duties of an expert witness, Carbaugh v. Asbestos Corp. Ltd., 167 P.3d 1063, 1068, 585 Utah Adv. Rep. 13 (2007).

20 (a) the particular telemedicine services that are considered face to face encounters for reimbursement purposes under the state's medical assistance program; and (b) the reimbursement methodology for the telemedicine services designated under Subsection (3)(a). Physicians are able to prescribe medication over the internet, using an online medical questionnaire, if they are prescribing legend drugs. UTAH ADMINISTRATIVE CODE R Online Assessment, Diagnosis, and Prescribing Protocols (1) In accordance with Subsection (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 9 and may not include controlled substances; (d) the practice is authorized by this rule and a written 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 written agreement shall include: 9 Legend drug means a drug limited by 503(b)(1) of the federal Food, Drug, and Cosmetic Act to being dispensed by or upon a medical practitioner s prescription because the drug is: (i) Habit-forming; (ii) Toxic or causes potential harm; or (iii) Limited in its use, so that it is only under a practitioner s supervision by the new drug application for the drug.

21 (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.

22 APPENDIX Definitions In addition to the definitions in Section , as used in this chapter: (1) ACGME means the Accreditation Council for Graduate Medical Education of the American Medical Association. (2) Administrative penalty means a monetary fine imposed by the division for acts or omissions determined to constitute unprofessional or unlawful conduct, as a result of an adjudicative proceeding conducted in accordance with Title 63G, Chapter 4, Administrative Procedures Act. (3) Board means the Physicians Licensing Board created in Section (4) Diagnose means: (a) to examine in any manner another person, parts of a person's body, substances, fluids, or materials excreted, taken, or removed from a person's body, or produced by a person's body, to determine the source, nature, kind, or extent of a disease or other physical or mental condition; (b) to attempt to conduct an examination or determination described under Subsection (4)(a); (c) to hold oneself out as making or to represent that one is making an examination or determination as described in Subsection (4)(a); or (d) to make an examination or determination as described in Subsection (4)(a) upon or from information supplied directly or indirectly by another person, whether or not in the presence of the person making or attempting the diagnosis or examination. (5) LCME means the Liaison Committee on Medical Education of the American Medical Association. (6) Medical assistant means an unlicensed individual working under the direct and immediate supervision of a licensed physician and surgeon and engaged in specific tasks assigned by the licensed physician and surgeon in accordance with the standards and ethics of the profession.

23 (7) Physician means both physicians and surgeons licensed under Section , Utah Medical Practice Act, and osteopathic physicians and surgeons licensed under Section , Utah Osteopathic Medical Practice Act. (8) Practice of medicine means: The right to practice medicine, to diagnose maladies, and to prescribe for their treatment is not constitutionally superior to a state s power to impose comprehensive and rigid regulations on those practices. State v. Hoffman, 733 P.2d 502 (1987). (a) to diagnose, treat, correct, administer anesthesia, or prescribe for any human disease, ailment, injury, infirmity, deformity, pain or other condition, physical or mental, real or imaginary, or to attempt to do so, by any means or instrumentality, and by an individual in Utah or outside the state upon or for any human within the state, except that conduct described in this Subsection (8)(a) that is performed by a person legally and in accordance with a license issued under another chapter of this title does not constitute the practice of medicine; 10 (b) when a person not licensed as a physician directs a licensee under this chapter to withhold or alter the health care services that the licensee has ordered, but practice of medicine does not include any conduct under Subsection (2); (c) to maintain an office or place of business for the purpose of doing any of the acts described in Subsection (8)(a) whether or not for compensation; or (d) to use, in the conduct of any occupation or profession pertaining to the diagnosis or treatment of human diseases or conditions in any printed material, stationery, letterhead, envelopes, signs, or advertisements, the designation doctor, doctor of medicine, physician, surgeon, physician and surgeon, Dr., M.D., or any combination of these designations in any manner which might cause a reasonable person to believe the individual using the designation is a licensed physician and surgeon, and if the party using the designation is not a licensed physician and surgeon, the designation must additionally contain the description of the branch of the healing arts for which the person has a license. 10 The practice of medicine includes chiropractic treatment, Shober v. Industrial Commission, 92 Utah 399, 68 P.2d 756, (1937).

24 (9) Prescription drug or device means: (a) a drug or device which, under federal law, is required to be labeled with either of the following statements or their equivalent: (i) CAUTION: Federal law prohibits dispensing without prescription ; or (ii) CAUTION: Federal law restricts this drug to use by or on the order of a licensed veterinarian ; or (b) a drug or device that is required by any applicable federal or state law or rule to be dispensed on prescription only or is restricted to use by practitioners only. (10) SPEX means the Special Purpose Examination of the Federation of State Medical Boards. (11) Unlawful conduct is as defined in Sections and (12) Unprofessional conduct is as defined in Sections and , and as may be further defined by division rule.