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WAC 246-16-200 Mandatory Reporting of unprofessional conduct and inability to practice with reasonable skill and safety.

This section establishes mandatory reporting requirements related to health care practitioners who commit unprofessional conduct or who are unable to practice with reasonable skill and safety due to a mental or physical condition. It is not intended to limit reports from any person who has concerns about a license holder’s conduct or ability to practice with reasonable skill and safety.

(a) “Approved impaired practitioner or voluntary substance abuse program” means a program authorized by RCW 18.130.175 and approved by a disciplining authority listed in RCW 18.130.040.

(b) “Conviction” means conviction of any gross misdemeanor or felony, and includes all instances in which a plea of guilty or nolo contendere is the basis for the conviction and all proceedings in which the sentence has been deferred or suspended.

(c) “Determination or finding” means a decision by an employer, association, professional review organization, state or federal agency, or court, regardless of whether adverse action or sanction has been imposed and regardless of whether the license holder appeals the decision.

(d) “License holder” means those persons holding a credential in a profession described in RCW 18.130.040(2).

(e) “Unable to practice with reasonable skill and safety due to a mental or physical condition” means a license holder who has been determined by a court to be incompetent or mentally ill, or a license holder who is reasonably likely to cause harm to a patient or client because of a mental or physical condition.

(f) “Unprofessional conduct” includes the acts, conduct, or conditions described in RCW 18.130.180, such as, not limited to:

     (i) Conviction of any crime or plea of guilty, whether or not the crime relates to the license holder’s profession;
     (ii) Conduct which leads to dismissal from employment for cause;
     (iii) Conduct which reasonably appears to be a contributing factor to the death of a patient;
     (iv) Conduct which reasonably appears to be a contributing factor to the harm of a patient that requires medical intervention;
     (v) Conduct which reasonably appears to violate accepted standards of practice and reasonably appears to create a risk of physical and/or emotional harm to a patient;
     (vi) Conduct involving a pattern of repeated acts or omissions of a similar nature in violation of the standards of practice that reasonably appears to create a risk to a patient;
     (vii) Drug trafficking or diversion;
     (viii) Conduct involving the misuse of alcohol, controlled substances, or legend drugs, whether or not prescribed to the license holder, where such conduct is related to practice or violates any other drug or alcohol-related law;
     (ix) Conduct involving sexual contact with a patient or other sexual misconduct;
     (x) Conduct involving patient abuse, including physical, verbal, and emotional;
     (xi) Conduct indicating unfitness to practice the profession or that would diminish the standing of the profession in the eyes of the public;
     (xii) Conduct involving fraud related to the practice;
     (xiii) Conduct involving practicing beyond the scope of the individual's license;
     (xiv) Practicing, or offering to practice, without a valid license, including practicing on a license lapsed for nonpayment of fees; and
     (xv) Violation of a disciplinary sanction imposed on the license holder’s license by the disciplining authority.

(a) Reports required under this section must be submitted to the department of health. The department will forward the report to the appropriate disciplining authority.

(i) If a patient has been harmed, a report to the department is required and a report to one of the approved impaired practitioner or voluntary substance abuse programs is not a substitute for reporting under this section.

(ii) Reports to a national practitioner data bank do not substitute for meeting the reporting requirement of this section.

(b) Reports should contain the following information, if known:
     (i) The name, address, and telephone number of the person making the report;
     (ii) The name, address, and telephone number(s) of the license holder being reported;
     (iii) The case number of any patient or client whose treatment is a subject of the report;
     (iv) A brief description or summary of the facts which gave rise to the report, including dates of occurrences;
     (v) If court action is involved, the name of the court, the date of filing, and the docket number; and
     (vi) Any further information which would aid in the evaluation of the report.

(c) All reports required under this section should be submitted as soon as possible, but must be submitted no later than thirty days after a determination is made or actual knowledge is acquired by the person reporting, whichever comes first.

(a) Any conviction, determination, or finding that he or she has committed unprofessional conduct or is unable to practice with reasonable skill and safety due to a mental or physical condition; and

(b) Any determination that he or she is disqualified from participation in the federal Medicare program or the federal Medicaid program.

(i) Any conviction, determination, or finding that another license holder has committed an act that constitutes unprofessional conduct, and

(ii) Information that indicates another license holder may not be able to practice his or her profession with reasonable skill and safety to consumers as a result of a mental or physical condition.

(b) A license holder is not required to report under this subsection if the reporting license holder:

(i) is part of a professional review organization as provided in subsection (5)(e) of this section;

(ii) is providing health care to the other license holder and the other license holder does not pose a clear and present danger to patients or clients; or

(iii) is part of a federally funded substance abuse program or approved impaired practitioner or voluntary substance abuse program and the other license holder is participating in treatment and does not pose a clear and present danger to patients or clients.

(a) Professional liability insurance carriers. Every institution or organization providing professional liability insurance directly or indirectly to a license holder shall send a complete report to the department of any malpractice settlement, award, or payment in excess of twenty thousand dollars as a result of a claim or action for damages alleged to have been caused by an insured license holder’s incompetence or negligence in the practice of the profession. Such institution or organization shall also report the award, settlement, or payment of three or more claims during a twelve-month period as a result of the license holder's alleged incompetence or negligence in the practice of the profession.

(b) Health care institutions. The chief administrator or executive officer or designee of any hospital or specialty hospital defined in chapter 70.41 RCW, ambulatory surgery center defined in chapter 70.230 RCW, childbirth center defined in chapter 18.46 RCW, nursing home defined in chapter 18.51 RCW, chemical dependency treatment programs defined in chapter 70.96A RCW, drug treatment agency defined in chapter 69.54 RCW, and public and private mental health treatment agencies defined in RCW 71.05.020, and 71.24.025, shall report to the department when:
(i) Any license holder’s services are terminated or are restricted based upon a determination that the license holder has committed an act which may constitute unprofessional conduct; or
(ii) The license holder may be unable to practice with reasonable skill or safety to clients by reason of a mental or physical condition.

(c) Associations and societies. The president or chief executive officer of any health care profession association or society within this state shall report to the department when the association or society determines that a license holder has committed unprofessional conduct or that the license holder may not be able to practice their profession with reasonable skill and safety to patients or clients as the result of any mental or physical condition. The report required by this section shall be made without regard to whether the license holder appeals, accepts, or acts upon the determination made by the association or society. Notification of appeal shall be included in the report.

(d) Service contractors and insurance carriers. The executive officer of every insurer and health care service contractor licensed under title 48 RCW operating in the state of Washington shall report to the department all final determinations or findings that a license holder has engaged in fraud in billing for services or has otherwise committed unprofessional conduct.

(e) Professional review organizations. Unless prohibited by federal or state law, every peer review committee, quality improvement committee, or other similarly designated professional review organization operating within the state of Washington shall report to the secretary:

(i) when it determines that a license holder has committed an act which constitutes unprofessional conduct, including consistent, excessive utilization of any test, treatment, or procedure when the services are clearly not called for under the circumstances in which such services were provided, and

(ii) Information which indicates that the license holder may not be able to practice their profession with reasonable skill and safety to consumers as a result of a mental or physical condition.

Professional review organizations and individual license holders participating in the professional review organization are not required to report during the investigative phase of the professional review organization’s operation if the organization completes the investigation in a timely manner.

(f) The department requests the assistance of the clerk of trial courts within the state to report all professional malpractice judgments and all convictions of the license holder, other than minor traffic violations.

The department requests the assistance of executive officers of any state or federal program operating in the state of Washington, under which a license holder is employed to provide patient or client care services, to report to the department whenever the license holder:

(i) has been determined to have demonstrated his/her incompetence or negligence in the practice of the profession,

(iii) is unable to practice with reasonable skill and safety to patients or clients.

(6) Immunity. A person is immune from civil liability, whether direct or derivative, for providing information to the department under this section.

(a) Mandatory reports shall be exempt from public inspection and copying to the extent permitted under chapter 42.56 RCW.

(b) The identity of a whistleblower is protected as provided in chapter 246-15 WAC.

For the Draft Rules for changes to the Consumers Access to Vision Care (our contact lens law), please click HERE

Go to www.doh.wa.gov and then to Provider Credential Search in the right hand menu. Pick the profession in the drop down box, and fill in the name - you will be able to see if there has been action by the Department since 1998. This will only tell you if the person has a record in Washington State. DOH is working on a system to do more exclusive BG checks. Some persons may have a record that is not known if they were licensed before WA began doing BG checks.

The question asked was "Does a felony conviction automatically disqualify me
for optician licensure?" The official word is Maybe!! The state looks at each
application on an individual basis. The examples were, if it was armed robbery
20 years ago and the person did their time and is clean, yes. If it is a crime
against kids, absolutely not, if it is a felony in healthcare, no. There is a new
law going through right now this session that will make it clear and very specific.
In other words which crimes are acceptable and which ones won't be accepted.
Don't know if it will pass out of committee and what form it will be in and what
words will count.
Hope that answers the question.

It is time for the biennial adjustment to the allowable fees for searching and duplicating medical records. The current fees are effective through June 30, 2007.

RCW 70.02.010 requires the Department of Health to adjust these fees biennially according to the change in the Consumer Price Index. In addition to adjusting the fees, the department is also proposing an amendment to correct the statutory authority reference from 70.02.010(14) to 70.02.010(15). The subsection number was changed by 2006 legislation (ESSB 6106, Chapter 235, Laws of 2006).

A public hearing will be held April 26, 2007 at 9:00 AM at the Department of Health, 310 Israel Road SE, Room 153, Tumwater, Washington.

You may submit comments via our Rules Comment Web Site at http://www3.doh.wa.gov/policyreview/, or you may mail them to Sherry Thomas, Policy Coordinator, at Department of Health, P.O. Box 47850, Olympia, WA 98504-7850. Comments are due by April 19, 2007.

More details and a copy of the proposed rule amendment are available at the Rules Comment Web Site at the above link.

The vision care consumer assistance act has been in place in the state of Washington for many years.
However, it only passed nationally last year. Our law did not allow for it in this state. Therefore the
Department of Health has suggested some changes to our law to bring it in compliance with the federal law.
The changes are minor, but here is the simple definition of the purposed changes.

1) References that now include plano or non-corrective contact lenses in the law.
2) The definition of an 'initial prescription' and a 'finalized prescription'
3) Release of prescription when verification of insurance coverage is required
4) Release of prescription by electronic means when directed by, or on behalf of the patient
5) The title of this rule will now be 'Initial prescription' for corrective lenses.
6) The prescriber who completes the final follow up and final evaluation MUST provide a copy
of the finalized contact lens prescription to the practitioner who preformed the initial fitting and the
prescriber who performed the initial prescription.
7) Retention of private label contact lens info
8) Verbal explanation must be given to the patient at the time of exam if there are contraindications
to contact lens wear.

Any comments must be received no later that November 27th, 2006 by the Department of Health.

Find out which legislative district you reside in and who your representatives are HERE

Many of you ask what is OAA and what does it do for me? It provides many of the same functions as your state association times 50 states. Although you may not see a direct benefit, let me try to list some of things I have seen over the years. The national speakers that we get for our conventions. You have commented about the new format for Roundtable, that comes from OAAs direction. Ideas for our newsletter. Fundraising ideas, chapter growth ideas, connections with neighboring states. We have a lobbyist who monitors national legislation, the new contact lens release bill! There is a new move about to try and get every state across the country to have at a minimum, registered opticians if not licensed opticians. For those of you who are not aware, our college program is in trouble. We have been able to make contact with an optician in North Carolina who has written a paper about the future of opticians. It was presented to the admin people at SCCC. Hopefully it may help some. OAA has members who sit on the ABO and NCLE boards. I absolutely believe if and when we go through any legislative activity again we will have friends from across the country who will offer to help and or have been through our issues and give advice so that we are not reinventing the wheel. (as we are so prone to doing!) In the past we were given money from OAA for our Vision care consumer assistance act legislation. We have been given a video tape that can be changed to use for advertising that promotes OAA and OAW. It does need to be developed with someone who understands those things, but it is in our possession and ready to go. We are now getting newsletters, so that you can stay current on what is happening across the country. If any of you are moving and need contacts in another part of the country, I can get names for you. And for your patients or customers. Not every state is active, but we do have many contacts. They provide a national convention, much like our own, which you are all entitled to attend. They have a management conference, for managers and owners with info other than optics.Your board is working hard to get OAA to have their national convention in Washington in 2 years, so that you can see them. ( although THEY seem an awful lot like us!)

Your Washington State License must be displayed in plain view of your customers. If you wish for privacy, you may black-out your mailing address.

Alphabet Soup for the Ophthalmic Industry

AAO American Academy of Optometry

AAO American Academy of Ophthalmology

ABO American Board of Opticianry

AOA American Optometric Association

BVI Better Vision Institute

CLAO Contact Lens Association of Ophthalmologists

CLI Contact Lens Institute

CLES Contact Lens Eyecare Symposium

COA Commission on Opticianry Accreditation

EFOO Educational Foundation in Ophthalmic Optics

JCAHPO Joint Commission on Allied Health Professionals in

Ophthalmology

NAO National Academy of Opticians

NCSORB National Committee of State Opticianry Regulatory Boards

NCLE National Contact Lens Examiners

NFOS National Federation of Opticianry Schools

OAA Opticians Association of America

VCA Vision Council of America

Education Task Force Cost & Feasability Results

At the request of the OAW and its board, pursuant to a vote taken at the spring convention of 2003 on Bill Gregory’s motion to accept option 3 and as amended by Glenn Charles’ motion to study the cost of formulating and presenting such an issue to the legislature, a committee was formed to look at the issue of making a two year degree mandatory for becoming a LDO in the state of Washington. As part of this investigation, information has been gathered and a schedule of events, a task list if you will, has been compiled spelling out the steps that must be done before this proposal can become law. Three things are apparent before the process actually begins, and those three things are:

It will take time

It will take commitment

It will take money

· The patients see us as professionals, but with formal education, other health care providers will see us as the professionals we are. As stated before, opticianry is the only health related job that can be attained other than by going to school. There must be input from opticians everywhere as to why this change is needed.

· All interested parties must meet together. This proposal requires meeting with all interested and involved parties around the entire state. These will NOT be one time meetings, rather it can be planned that there will be MANY meetings involved in submitting this proposal.

· Feasibility of the proposal needs to be discussed with all parties, and this includes technical college representatives. Could such a program be made available to all interested parties across the state? The question of conquering geographical/physical barriers should be addressed. Since this would involve the colleges, what would they have to do to make sure that this could move forward? It should be kept in mind that if the law is changed, schools must abide by state law. If the law changes, the school system will change. It should also be noted that there are now several “on line” opticianry degrees available; for example, the Charter Oaks State College degree.

· Meetings must occur with the Department of Health. Are there any barriers to this new requirement that they can see and state? It needs to be known if this proposal impacts the DOH financially, and along with the DOH are there potential impacts to employers and health care in general?

· Meetings must happen with the Department of Labor and Industries. These meetings must be of a collaborative nature to see what could be done about implementing this change.

· Meetings must be held with the optometrists, the ophthalmologists, the chains and any and all other parties that can be identified. These types of meetings must include ANY INTERESTED PARTIES.

· Build and prepare legislation reflecting what has been learned by meeting with all interested parties.

How Long Will This All Take?

Best estimates range in the area of 8-12 years. This will allow time for all meetings to occur and all apprentices registered to finish out their allotted time under the current law.

How Would This Affect Current License Holders?

Any legislation would have to include a “grandfather” clause under which all current license holders would still continue to hold their licenses; basically, if this law were to pass, all current license holders would be unaffected by the change. The proposed change would only affect persons wishing to sit for the LDO exam after the law goes into effect, and not already enrolled as an apprentice.

How Much Money Do We Need To Make This Happen?

The best estimates put the cost of developing this legislation at approximately 50-55 thousand dollars per year for the time noted above, depending on the rapidity of the process. This amount should cover the cost of a lobbyist and PAC contributions. We do not need to have all the money in hand to begin the process! As far as money to fund this project, it is recommended that we should contact all national organizations, state organizations and the national federation of opticianry schools to present our mission and to ask for their financial support. THE AMOUNT NOTED IS A REASONABLE ESTIMATE OF THE COSTS OF ENACTING THIS LEGISLATION.

This proposal, as noted near the beginning of this report, is going to take time, effort and money. Every optician in this state should be informed as to what is being proposed. If it is decided that this project should go forward, all opticians must understand what is being proposed, support the proposal and the outcome. It needs to be said that if we go ahead, every member of the OAW will need to become a “de facto” member of the committee and be prepared to work as needed to attain the goal.

Volunteer Opticians Needed

The Millionair Club of Seattle , a mission downtown, has an eye clinic established one day a week. We have been dispensing about 275 pair of eyeglasses per year there for the last 12 years. The eye exams are provided by VOSH doctors. The equipment is all donated. The lenses are paid for by the West Seattle Lions Club. The frames are all new, donated by many sources.

We are in need of optician volunteers, licensed or not, Thursday AM, from 9:00 to about 12:00 . You will usually see 7 people plus maybe a repair or two. Only very basic skills are needed: PD’s, seg heights & frame pre-adjustments. Only SV & flat topped bifocals are used.

The people are so appreciative. They are clean & sober, or else they wouldn’t qualify to get the glasses. It’s mostly men and a few women. If you can spare even one morning in 4 to 6 months, it would be greatly appreciated.

Please contact Diane Charles to be added to the schedule. Her phone number is (425) 885-7028 Tuesday-Saturday.

What to do about un-licensed practice?

First of all, what constitutes un-licensed practice? Obviously, someone practicing opticianry independently without evidence of a license on the premises. A “frame consultant” taking PDs and seg heights. An un-licensed employee of a medical doctor or optometrist who works while the doctor is at another location. An apprentice optician working longer unsupervised hours than allowed.

What can you do about it? While an anonymous call to the Department of Health sounds tempting, the only real way to get action is to file a written complaint. The complaint should be as detailed as possible as to the time(s) of the infraction, the name of the individual, and the nature of the infraction, as well as your name. The chance of your name being revealed to the individual is very small, but can happen in a court of law. Most enforcement is made voluntarily by either the individual or the employer.

Could this practice harm the public? According to David Magby, the Chief Investigator for the DOH, if the answer is “yes” the individual will be contacted within a few days to two weeks, depending on the urgency of the situation. Upon receiving a written complaint, the investigative unit has up to 150 days to complete its investigation. David says the average investigation is being completed within 90 days. Companies and corporations are not subject to investigation, as they are not licensed entities in this state, a situation that could change in the future.

One way you can be sure not to be mistaken for an un-licensed practitioner is to keep your license in plain view of the public at your practice. Encourage the public to ask for the licensed status of the dispensers they encounter. And don’t be too shy to report infractions!

Report infractions in written form to Judy Haenke, our Optician Program director at the Department of Health. Letter, fax or email will work. The mailing address is:

Washington Department of Health

Health Professions Quality Assurance Division (HPQAD)

PO Box 1099

Olympia, WA 98507-1099

fax # (360) 586-0745

email: judy.haenke@doh.wa.gov

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