COMMITTEE SUBSTITUTE
FOR
H. B. 4303
(By Delegates Morgan, Martin, Argento, Higgins,
Reynolds, Craig, Swartzmiller, Palumbo and Stephens)
(Originating in the Committee on the Judiciary)
[February 18, 2008]
A BILL to amend and reenact §30-36-18 and §30-36-19, of the Code of
West Virginia, 1931, as amended;
and to amend said code by
adding thereto two new sections, designated §30-36-21 and
§30-36-22, all relating to the Board of Acupuncture;
clarifying disciplinary causes and actions; providing for
complaint investigations, hearings; and providing civil and
criminal penalties.
Be it enacted by the Legislature of West Virginia:
That §30-36-18 and §30-36-19, of the Code of West Virginia,
1931, as amended, be amended and reenacted; and that said code be
amended by adding thereto two new sections, designated §30-36-21
and §30-36-22, all to read as follows:
ARTICLE 36. ACUPUNCTURISTS.
§
30-36-18. Reprimands, probations, suspensions and revocations;
grounds. Causes for denial, probation, limitation,
discipline, suspension or revocation of licenses of
acupuncturists.
(a) The board,
on the affirmative vote of a majority of its
full authorized membership, may reprimand any licensee, place any
licensee on probation, or suspend or revoke a license if the
licensee: may refuse to issue, refuse to renew, suspend, revoke,
limit a license or practice privilege, or take other disciplinary
action as provided in subsection (b), against a licensee for any of
the following reasons:
(a)(1) Fraudulently or deceptively obtains or attempts to
obtain a license for the applicant or licensee or for another;
Fraud, misrepresentation or deceit in obtaining or maintaining a
license.
(b)(2) Fraudulently or deceptively:
(1) Uses a license; or
(2) Solicits or advertises. Failure to maintain compliance
with the requirements for the issuance or renewal of a license.
(c) (3) Is guilty of immoral or unprofessional conduct in the
practice of acupuncture; Dishonesty, fraud, professional negligence
in the performance of acupuncture, or a willful departure from the
accepted standards of practice and professional conduct;
(d) (4) Is professionally, physically or mentally incompetent;
Violation of any provision of this article or rule promulgated
hereunder;
(e) (5) Provides professional services while:
(1) Under the influence of alcohol; or
(2) Using any narcotic or controlled substance, as defined in
section one hundred one, article one, chapter sixty-a of this code,
or other drug that is in excess of therapeutic amounts or without
a valid medical indication; Failure to comply with an order or
final decision of the board;
(f) (6) Knowingly violates any provision of this article or
any rule of the board adopted under this article; Failure to
respond to a request or action of the board;
(g) (7) Is convicted of or pleads guilty or nolo contendere to
a felony or to a crime involving moral turpitude, whether or not
any appeal or other proceeding is pending to have the conviction or
plea set aside; Conviction of a felony or a crime involving
dishonesty or fraud or any similar crime under the laws of the
United States, this state or another jurisdiction, if the
underlying act or omission involved would have constituted a crime
under the laws of this state;
(h) (8) Practices acupuncture with an unauthorized person or
assists an unauthorized person in the practice of acupuncture;
Knowingly using any false or deceptive statements in advertising;
(I) (9) Is disciplined by the licensing or disciplinary
authority of any other state or country or convicted or disciplined
by a court of any state or country for an act that would be grounds
for disciplinary action under this section; Conduct adversely
affecting the licensee's fitness to perform acupuncture; or
(j) (10) Willfully makes or files a false report or record in the practice of acupuncture; Obtaining, renewing or attempting to
obtain or renew a license, for himself, herself or another, through
the submission of any application or other writing that contains
false, fraudulent or misleading information.
(k) Willfully fails to file or record any report as required
by law, willfully impedes or obstructs the filing or recording of
the report, or induces another to fail to file or record the
report;
(l) Submits a false statement to collect a fee; or
(m) Refuses, withholds from, denies or discriminates against
an individual with regard to the provision of professional services
for which the person is licensed and qualified to render because
the individual is HIV positive, in conformity with standards
established for treatment by physicians, dentists and other
licensed health care professionals in cases of this nature.
(b) For the purposes of subsection (a), other disciplinary
action means one or more of the following:
(1) reprimand;
(2) administrative fine not to exceed one thousand dollars per
day per violation;
(3) probation;
(4) mandatory attendance at continuing education seminars or
other training.
§
30-36-19. Due process procedure.
(a)
Upon filing with the board a written complaint charging a person with being guilty of any of the acts described in section
sixteen of this article, the administrative secretary or other
authorized employee of the board shall provide a copy of the
complaint or list of allegations to the person about whom the
complaint was filed. That person will have twenty days thereafter
to file a written response to the complaint. The board shall
thereafter, if the allegations warrant, make an investigation. If
the board finds reasonable grounds for the complaint, a time and
place for a hearing shall be set, notice of which shall be served
on the licensee or applicant at least fifteen calendar days in
advance of the hearing date. The notice shall be by personal
service or by certified or registered mail sent to the last known
address of the person. The board may upon its own motion and shall
upon the filing of a complaint by any person, determine whether the
allegations against a licensee, if taken as true, would constitute
a violation of the provisions of this article or rules promulgated
pursuant to this article.
(b)
The board may petition the circuit court for the county
within which the hearing is being held to issue subpoenas for the
attendance of witnesses and the production of necessary evidence in
any hearing before it. Upon request of the respondent or of his or
her counsel, the board shall petition the court to issue subpoenas
in behalf of the respondent. The circuit court upon petition may
issue such subpoenas as it deems necessary.
Upon initiation or
receipt of the complaint, the board shall provide a copy of the complaint to the licensee.
(c) Unless otherwise provided in this article, hearing
procedures shall be promulgated in accordance with, and a person
who feels aggrieved by a decision of the board may take an appeal
pursuant to, the administrative procedures in this state as
provided in chapter twenty-nine-a of this code.
The board may
cause an investigation to be made into the facts and circumstances
giving rise to the complaint and any person licensed by the board
has an affirmative duty to assist the board, or its authorized
representative, in the conduct of its investigation.
(d) After reviewing any information obtained through an
investigation, the board shall determine if probable cause exists
that the licensee has violated any provision of this article or
rules promulgated pursuant to this article.
(e) Upon a finding that probable cause exists that the
licensee has violated any provision of this article or rules
promulgated pursuant to this article, the board shall hold a
hearing for the suspension or revocation of a license, or the
imposition of sanctions against a licensee. The hearing shall be
held in accordance with the provisions of section twenty-one of
this article.
(f) Any member of the board or the executive director of the
board may issue subpoenas and subpoenas duces tecum to obtain
testimony and documents to aid in the investigation of allegations
against a licensee.
§30-36-21. Hearing and judicial review.
(a) Hearings shall be conducted in accordance with the
provisions of article five, chapter twenty-nine-a of this code and
the board's rules.
(b) Either the board or the licensee may elect to have an
administrative law judge or hearing examiner conduct the hearing.
(c) At the conclusion of a hearing conducted by an
administrative law judge or hearing examiner, a proposed written
order shall be prepared containing findings of fact and conclusions
of law. The board may request that disciplinary actions imposed be
a part of the proposed order, or may reserve this obligation for
its consideration. The board may accept, reject or modify the
decision of the administrative law judge or hearing examiner.
(d)
Any member or the executive director of the board has the
authority to administer oaths, to examine any person under oath,
and issue subpoenas.
(e) If, after a hearing, the board determines the licensee has
violated any provision of this article or the board's rules, a
formal written decision shall be prepared which contains findings
of fact, conclusions of law and specifically lists the disciplinary
actions imposed.
(f) Any licensee adversely affected by a decision of the board
entered after a hearing, may obtain judicial review of the decision
in accordance with section four, article five, chapter
twenty-nine-a of this code.
§30-36-22. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article
or otherwise, the board has reason to believe that a person has
knowingly violated the provisions of this article or rules
promulgated pursuant to this article, the board may bring its
information to the attention of an appropriate law-enforcement
official who may cause criminal proceedings to be brought.
(b) Any person violating a provision of this article or rule
promulgated pursuant to this article
, is guilty of a misdemeanor
and, upon conviction thereof, shall be fined not less than one
hundred dollars nor more than one thousand dollars or confined in
jail not more than six months, or both fined and confined.
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