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Introduced Version House Bill 2249 History

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hb2249 intr
H. B. 2249


(By Delegates Leach and Craig)
[Introduced February 11, 2005; referred to the
Committee on the Judiciary.]




A BILL to amend and reenact §30-3-13 of the Code of West Virginia, 1931, as amended, relating to making the unauthorized practice of medicine and surgery or podiatry or as a physician assistant a felony rather than a misdemeanor.

Be it enacted by the Legislature of West Virginia:
That §30-3-13
of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-13. Unauthorized practice of medicine and surgery or podiatry or as a physician assistant; criminal penalties; limitations.

(a) A person shall not engage in the practice of medicine and surgery or podiatry, hold himself or herself out as qualified to practice medicine and surgery or podiatry or use any title, word or abbreviation to indicate to or induce others to believe that he or she is licensed to practice medicine and surgery or podiatry in this State unless he or she is actually licensed under the provisions of this article. A person engaged in the practice of telemedicine is considered to be engaged in the practice of medicine within this State and is subject to the licensure requirements of this article. As used in this section, the term "practice of telemedicine" means the use of electronic information and communication technologies to provide health care when distance separates participants and includes one or both of the following: (1) The diagnosis of a patient within this State by a physician located outside this State as a result of the transmission of individual patient data, specimens or other material by electronic or other means from within this State to the physician or his or her agent; or (2) the rendering of treatment to a patient within this State by a physician located outside this State as a result of transmission of individual patient data, specimens or other material by electronic or other means from within this State to the physician or his or her agent. No person may practice as a physician's assistant, hold himself or herself out as qualified to practice as a physician's assistant, or use any title, word or abbreviation to indicate to or induce others to believe that he or she is licensed to practice as a physician's assistant in this State unless he or she is actually licensed under the provisions of this article. Any person who violates the provisions of this subsection is guilty of a misdemeanor felony and, upon conviction thereof, shall be fined not more than ten thousand dollars, or imprisoned in the county jail a state correctional facility not less than one nor more than twelve months two years, or both fined and imprisoned.
(b) The provisions of this section do not apply to:
(1) Persons who are duly licensed health care providers under other pertinent provisions of this code and are acting within the scope of their license;
(2) Physicians or podiatrists licensed in other states or foreign countries who are acting in a consulting capacity with physicians or podiatrists duly licensed in this State, for a period of not more than three months: Provided, That this exemption is applicable on a one-time only basis;
(3) An individual physician or podiatrist, or physician or podiatrist, or physician or podiatrist groups, or physicians or podiatrists at a tertiary care or university hospital outside this State and engaged in the practice of telemedicine who consult or render second opinions concerning diagnosis or treatment of patients within this State: (i) In an emergency or without compensation or expectation of compensation; or (ii) on an irregular or infrequent basis which occurs less than once a month or less than twelve times in a calendar year;
(4) Persons holding licenses granted by another state or foreign country who are commissioned medical officers of, a member of or employed by the armed forces of the United States, the United States Public Health Service, the Veterans' Administration of the United States, any federal institution or any other federal agency while engaged in the performance of their official duties;
(5) Any person providing first-aid care in emergency situations;
(6) The practice of the religious tenets of any recognized church in the administration of assistance to the sick or suffering by mental or spiritual means;
(7) Visiting medical faculty engaged in teaching or research duties at a medical school or institution recognized by the board and who are in this state for periods of not more than six months: Provided, That the individuals do not otherwise engage in the practice of medicine or podiatry outside of the auspices of their sponsoring institutions;
(8) Persons enrolled in a school of medicine approved by the liaison Committee on Medical Education or by the Board, or persons enrolled in a school of podiatric medicine approved by the council of podiatry education or by the board, or persons enrolled in an undergraduate or graduate physician assistant program approved by the Committee on Allied Health Education and Accreditation or its successor on behalf of the American Medical Association or by the Board, or persons engaged in graduate medical training in a program approved by the liaison Committee on Graduate Medical Education or the Board, or engaged in graduate podiatric training in a program approved by the council on podiatric medical education or by the Board, who are performing functions in the course of training including with respect to functions performed by medical residents or medical students under the supervision of a licensed physician, ordering and obtaining laboratory tests, medications and other patient orders by computer or other electronic means and no other provision of this code to the contrary may be construed to prohibit or limit medical residents' or medical students' use of computers or other electronic devices in this manner;
(9) The fitting, recommending or sale of corrective shoes, arch supports or similar mechanical appliances in commercial establishments; and
(10) The fitting or sale of a prosthetic or orthotic device not involving any surgical procedure, in accord with a prescription of a physician, osteopathic physician or where chiropractors or podiatrists are authorized by law to prescribe such a prosthetic or orthotic device, in accord with a prescription of a chiropractor or podiatrist, by a practitioner certified in the provision of custom orthotic and prosthetic devices, respectively, by a nationally recognized credentialing body for orthotics and prosthetics that is accredited by the National Commission for Certifying Agencies (NCCA): Provided, That the sale of any prosthetic or orthotic device by a partnership, proprietorship or corporation which employs such a practitioner or registered technician who fitted the prosthetic or orthotic device shall not constitute the unauthorized practice of medicine: Provided, however, That the practitioner or registered technician may, without a prescription, make recommendation solely to a physician or osteopathic physician or to a chiropractor or podiatrist otherwise authorized by law to prescribe a particular prosthetic or orthotic device, regarding any prosthetic or orthotic device to be used for a patient upon a request for such recommendation.
(c) This section shall not be construed as being in any way a limitation upon the services of a physician's assistant performed in accordance with the provisions of this article.
(d) Persons covered under this article may be permitted to utilize electronic signature or unique electronic identification to effectively sign materials, transmitted by computer or other electronic means, upon which signature is required for the purpose of authorized medical practice. Such signatures are deemed legal and valid for purposes related to the provision of medical services. This subsection does not confer any new practice privilege or right on any persons covered under this article.

NOTE:
The purpose of this bill is to increase the penalty for the unauthorized practice of medicine and surgery or as physician assistant from a misdemeanor to a felony.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

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