SECOND
ENROLLMENT
COMMITTEE SUBSTITUTE
FOR
H. B. 4377
(By Mr. Speaker, Mr. Kiss, and Delegates Staton, Varner,
Mahan, Doyle, Browning and Hrutkay)
[Amended and Again Passed March 21, 2004, as a Result of the
Objections of the Governor; in Effect From Passage.]
AN ACT to amend and reenact §30-3-12 of the code of West Virginia,
1931, as amended; to amend and reenact §30-14-10 of said code;
and to amend and reenact §33-20F-4, §33-20F-5 and §33-20F-7 of
said code, all relating to physicians generally; permitting a
physician who allows his or her medical license to expire upon
retirement to retain the license certificate issued by the
board of medicine; authorizing the board of osteopathy to
propose legislative rules allowing inactive license status;
clarifying and correcting the premium taxes that the
physicians' mutual insurance company will be subject to;
providing exemption to certain physicians from special
assessment; providing for license suspension and civil penalty
for failure to pay the special assessment; and creating a
sunset provision.
Be it enacted by the Legislature of West Virginia:
That §30-3-12 of the code of West Virginia, 1931, as amended,
be amended and reenacted; that §30-14-10 of said code be amended
and reenacted; and that §33-20F-4, §33-20F-5 and §33-20F-7 of said
code be amended and reenacted, all to read as follows:
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.
ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-12. Biennial renewal of license to practice medicine and
surgery or podiatry; continuing education; rules; fee;
inactive license.
(a) A license to practice medicine and surgery or podiatry in
this state is valid for a term of two years and shall be renewed
upon a receipt of a reasonable fee, as set by the board, submission
of an application on forms provided by the board and, beginning
with the biennial renewal application forms completed by licensees
and submitted to the board in one thousand nine hundred
ninety-three, a certification in accordance with rules and
regulations promulgated by the board in accordance with chapter
twenty-nine-a of this code of participation in and successful
completion of a minimum of fifty hours of continuing medical or
podiatric education satisfactory to the board, as appropriate to
the particular license, during the preceding two-year period.
Continuing medical education satisfactory to the board is
continuing medical education designated as Category I by the
American Medical Association or the Academy of Family Physicians
and continuing podiatric education satisfactory to the board is
continuing podiatric education approved by the council on podiatric education.
In addition, the Legislature hereby finds and declares that it
is in the public interest to encourage alternate categories of
continuing education satisfactory to the board for physicians and
podiatrists. In order to provide adequate notice of the same to
physicians and podiatrists, no later than the first day of June,
one thousand nine hundred ninety-one, the board shall file rules
under the provisions of section fifteen, article three, chapter
twenty-nine-a of this code, delineating any alternate categories of
continuing medical or podiatric education which may be considered
satisfactory to the board and any procedures for board approval of
such continuing education.
Notwithstanding any provision of this chapter to the contrary,
failure to timely submit to the board a certification in accordance
with rules and regulations promulgated by the board in accordance
with chapter twenty-nine-a of this code of successful completion of
a minimum of fifty hours of continuing medical or podiatric
education satisfactory to the board, as appropriate to the
particular license, shall, beginning the first day of July, one
thousand nine hundred ninety-three, result in the automatic
suspension of any license to practice medicine and surgery or
podiatry until such time as the certification in accordance with
rules and regulations promulgated by the board in accordance with
chapter twenty-nine-a of this code, with all supporting written
documentation, is submitted to and approved by the board.
Any individual who accepts the privilege of practicing medicine and surgery or podiatry in this state is required to
provide supporting written documentation of the continuing
education represented as received within thirty days of receipt of
a written request to do so by the board. If a licensee fails or
refuses to provide supporting written documentation of the
continuing education represented as received as required in this
section, such failure or refusal to provide supporting written
documentation is prima facie evidence of renewing a license to
practice medicine and surgery or podiatry by fraudulent
misrepresentation.
(b) The board may renew, on an inactive basis, the license of
a physician or podiatrist who is currently licensed to practice
medicine and surgery or podiatry in, but is not actually
practicing, medicine and surgery or podiatry in this state. A
physician or podiatrist holding an inactive license shall not
practice medicine and surgery or podiatry in this state. His or
her inactive license may be converted by the board to an active one
upon a written request to the board that accounts for his or her
period of inactivity to the satisfaction of the board: Provided,
That beginning on the first day of July, one thousand nine hundred
ninety-three, such licensee submits written documentation of
participation in and successful completion of a minimum of fifty
hours of continuing medical or podiatric education satisfactory to
the board, as appropriate to the particular license, during each
preceding two-year period. An inactive license may be obtained
upon receipt of a reasonable fee, as set by the board, and submission of an application on forms provided by the board on a
biennial basis.
(c) The board shall not require any physician or podiatrist
who is retired or retiring from the active practice of medicine and
surgery or the practice of podiatry and who is voluntarily
surrendering their license
to return to the board the license
certificate issued to them by the board.
ARTICLE 14. OSTEOPATHIC PHYSICIANS AND SURGEONS.
§30-14-10. Annual renewal of license; fee; refresher training a
prerequisite; effect of failure to renew;
reinstatement.
(a) All holders of certificates of license to practice as
osteopathic physicians and surgeons in this state shall renew them
biennially on or before the first day of July, by the payment of a
reasonable renewal fee, the amount of such reasonable fee to be set
by the board rules to the secretary of the board. The secretary of
the board shall notify each certificate holder by mail of the
necessity of renewing his or her certificate at least thirty days
prior to the first day of July of each year.
(b) As a prerequisite to renewal of a certificate of license
issued by the board, each holder of such a certificate shall
furnish biennially to the secretary of the board satisfactory
evidence of having completed thirty-two hours of educational
refresher course training, of which the total amount of hours must
be AOA approved, and fifty percent of the required thirty-two hours
shall be category (1).
(c) The failure to renew a certificate of license shall
operate as an automatic suspension of the rights and privileges
granted by its issuance. The board may propose rules for
legislative approval, pursuant to the provisions of article three,
chapter twenty-nine-a of this code, providing that an osteopathic
physician may renew a certificate of license on an inactive basis.
(d) A certificate of license suspended by a failure to make a
biennial renewal thereof may be reinstated by the board upon
compliance of the certificate holder with the following
requirements:
(1) Presentation to the board of satisfactory evidence of
educational refresher training of quantity and standard approved by
the board for the previous two years;
(2) Payment of all fees for the previous two years that would
have been paid had the certificate holder maintained his or her
certificate in good standing; and
(3) Payment to the board of a reasonable reinstatement fee,
the amount of such reasonable fee to be set by the board rules.
CHAPTER 33. INSURANCE.
ARTICLE 20F.PHYSICIANS' MUTUAL INSURANCE COMPANY.
§33-20F-4. Authorization for creation of company; requirements and
limitations.
(a) Subject to the provisions of this article, a physicians'
mutual insurance company may be created as a domestic, private,
nonstock, nonprofit corporation. As an incentive for its creation,
the company may be eligible for funds from the Legislature in accordance with the provisions of section seven of this article.
The company must remain for the duration of its existence a
domestic mutual insurance company owned by its policyholders and
may not be converted into a stock corporation, a for-profit
corporation or any other entity not owned by its policyholders.
The company may not declare any dividend to its policyholders;
sell, assign or transfer substantial assets of the company; or
write coverage outside this state, except for counties adjoining
this state, until after any and all debts owed by the company to
the state have been fully paid.
(b) For the duration of its existence, the company is not and
may not be considered a department, unit, agency, or
instrumentality of the state for any purpose. All debts, claims,
obligations, and liabilities of the company, whenever incurred,
shall be the debts, claims, obligations, and liabilities of the
company only and not of the state or of any department, unit,
agency, instrumentality, officer, or employee of the state.
(c) The moneys of the company are not and may not be
considered part of the general revenue fund of the state. The
debts, claims, obligations, and liabilities of the company are not
and may not be considered a debt of the state or a pledge of the
credit of the state.
(d) The company is not subject to provisions of article nine-
a, chapter six of this code or the provisions of article one,
chapter twenty-nine-b of this code.
(e)(1) All premiums collected by the company are subject to the premium taxes, additional premium taxes, additional fire and
casualty insurance premium taxes and surcharges contained in
sections fourteen, fourteen-a, fourteen-d and thirty-three, article
three of this chapter:
Provided, That while the loan to the
company of moneys from the West Virginia tobacco settlement medical
trust fund pursuant to section nine of this article remains
outstanding, the commissioner may waive the company's premium
taxes, additional premium taxes and additional fire and casualty
insurance premium taxes if payment would render the company
insolvent or otherwise financially impaired.
(2) On and after the first day of July, two thousand three,
any premium taxes and additional premium taxes paid by the company
and by any insurer on its medical malpractice line pursuant to
sections fourteen and fourteen-a, article three of this chapter,
shall be temporarily applied toward replenishing the moneys
appropriated from the West Virginia tobacco settlement medical
trust fund pursuant to subsection (c), section two, article eleven-
a, chapter four of this code pending repayment of the loan of such
moneys by the company.
(3) The state treasurer shall notify the commissioner when
the moneys appropriated from the West Virginia tobacco settlement
medical trust have been fully replenished, at which time the
commissioner shall resume depositing premium taxes and additional
premium taxes diverted pursuant to subdivision (2) of this
subsection in accordance with the provisions of sections fourteen
and fourteen-a, article three of this chapter.
(4) Payments received by the treasurer from the company in
repayment of any outstanding loan made pursuant to section nine of
this article shall be deposited in the West Virginia tobacco
settlement medical trust fund and dedicated to replenishing the
moneys appropriated therefrom under subsection (c), section two,
article eleven-a, chapter four of this code. Once the moneys
appropriated from the West Virginia tobacco settlement medical
trust fund have been fully replenished, the treasurer shall deposit
any payments from the company in repayment of any outstanding loan
made pursuant to section nine of this article in said fund and
transfer a like amount from said fund to the commissioner for
disbursement in accordance with the provisions of sections fourteen
and fourteen-a, article three of this chapter.
§33-20F-5. Governance and organization.
(a)(1) The board of risk and insurance management shall
implement the initial formation and organization of the company as
provided by this article.
(2) From the first day of July, two thousand three, until the
thirtieth day of June, two thousand four, the company shall be
governed by a provisional board of directors consisting of the
members of the board of risk and insurance management, the dean of
the West Virginia University School of Medicine or a physician
representative designated by him or her, and five physician
directors, elected by the policyholders whose policies are to be
transferred to the company pursuant to section nine of this
article.
(3) Only physicians who are licensed to practice medicine in
this state pursuant to article three or article fourteen, chapter
thirty of this code and who have purchased medical professional
liability coverage from the board of risk and insurance management
are eligible to serve as physician directors on the provisional
board of directors. One of the physician directors shall be
selected from a list of three physicians nominated by the West
Virginia Medical Association. The board of risk and insurance
management shall develop procedures for the nomination of the
remaining physician directors and for the conduct of the election,
to be held no later than the first day of June, two thousand three,
of all of the physician directors, including, but not limited to,
giving notice of the election to the policyholders. These
procedures shall be exempt from the provisions of article three,
chapter twenty-nine-a of this code.
(b) From the first day of July, two thousand four, the
company shall be governed by a board of directors consisting of
eleven directors, as follows:
(1) Five directors who are physicians licensed to practice
medicine in this state by the board of medicine or the board of
osteopathy, including at least one general practitioner and one
specialist:
Provided, That only physicians who have purchased
medical professional liability coverage from the board of risk and
insurance management are eligible to serve as physician
representatives on the company's first board of directors;
(2) Three directors who have substantial experience as an officer or employee of a company in the insurance industry;
(3) Two directors with general knowledge and experience in
business management who are officers and employees of the company
and are responsible for the daily management of the company; and
(4) One director who is a dean of a West Virginia school of
medicine or osteopathy or his or her designated physician
representative. This director's position shall rotate annually
among the dean of the West Virginia University School of Medicine,
the dean of the Marshall University Joan C. Edwards School of
Medicine and the dean of the West Virginia School of Osteopathic
Medicine. This director shall serve until such time as the moneys
loaned to the company from the West Virginia tobacco settlement
medical trust fund have been replenished as provided in subsection
(e), section four of this article. After the moneys have been
replenished to the West Virginia tobacco settlement medical trust
fund, this director shall be a physician licensed to practice
medicine in this state by the board of medicine or the board of
osteopathy.
(c) In addition to the eleven directors required by
subsection (b) of this section, the bylaws of the company may
provide for the addition of at least two directors who represent an
entity or institution which lends or otherwise provides funds to
the company.
(d) The directors and officers of the company are to be
chosen in accordance with the articles of incorporation and bylaws
of the company. The initial board of directors selected in accordance with the provisions of subdivision (3), subsection (a)
of this section shall serve for the following terms: (1) Three for
four-year terms; (2) three for three-year terms; (3) three for two-
year terms; and (4) two for one-year terms. Thereafter, the
directors shall serve staggered terms of four years. If an
additional director is added to the board as provided in subsection
(c) of this section, his or her initial term shall be for four
years. No director chosen pursuant to subsection (b) of this
section may serve more than two consecutive terms.
(e) The incorporators are to prepare and file articles of
incorporation and bylaws in accordance with the provisions of this
article and the provisions of chapters thirty-one and thirty-three
of this code.
§33-20F-7. Initial capital and surplus; special assessment; failure
to pay assessment; disposition of civil penalty collected.
(a) There is hereby created in the state treasury a special
revenue account designated as the "Board of Risk and Insurance
Management Physicians' Mutual Insurance Company Account" solely for
the purpose of receiving moneys transferred from the West Virginia
Tobacco Medical Trust Fund pursuant to sub- section (c), section
two, article eleven-a, chapter four of this code for the company's
use as initial capital and surplus.
(b) On the first day of July, two thousand three, a special
one-time assessment, in the amount of one thousand dollars, shall
be imposed on every physician licensed by the board of medicine or
by the board of osteopathy for the privilege of practicing medicine in this state: Provided, That the following physicians shall be
exempt from the assessment:
(1) A faculty physician who meets the criteria for full-time
faculty under subsection (f), section one, article eight, chapter
eighteen-b of this code, who is a full-time employee of a school of
medicine or osteopathic medicine in this state, and who does not
maintain a private practice;
(2) A resident physician who is a graduate of a medical school
or college of osteopathic medicine enrolled and who is
participating in an accredited full-time program of post-graduate
medical education in this state;
(3) A physician who has presented suitable proof that he or
she is on active duty in armed forces of the United States and who
will not be reimbursed by the armed forces for the assessment;
(4) A physician who receives more than fifty percent of his or
her practice income from providing services to federally qualified
health center as that term is defined in 42 U.S.C. § 1396d(l)(2);
(5) A physician who practices solely under a special volunteer
medical license authorized by section ten-a, article three or
section twelve-b, article fourteen, chapter thirty of this code.
The assessment is to be imposed and collected by the board of
medicine and the board of osteopathy on forms prescribed by each
licensing board;
(6) A physician who is licensed on an inactive basis pursuant
to subsection (b), section twelve, article three, chapter thirty of
this code or section ten, article fourteen, chapter thirty or a physician who voluntarily surrenders his license: Provided, That a
retired osteopathic physician, who submits to the board of
osteopathy an affidavit asserting that he or she receives no
monetary remuneration for any medical services provided, executed
under the penalty of perjury and if executed outside the state of
West Virginia, verified, may be considered to be licensed on an
inactive basis: Provided, however, That if a physician elects to
resume an active license to practice in the state and the physician
has never paid the assessment, then as a condition of receiving an
active status license, the physician must pay the special one-time
assessment; and
(7) A physician who practices less than forty hours a year
providing medical genetic services to patients within this state.
(c) The entire proceeds of the special assessment collected
pursuant to subsection (b) of this section shall be dedicated to
the company. The board of medicine and the board of osteopathy
shall promptly pay over to the company all amounts collected
pursuant to this section to be used as policyholder surplus for the
company.
(d) Any physician who applies to purchase insurance from the
company and who has not paid the assessment pursuant to subsection
(b) of this section shall pay one thousand dollars to the company
as a condition of obtaining insurance from the company.
(e) A physician who fails to pay the special one-time
assessment imposed on the first day of July, two thousand three,
pursuant to subsection (b) of this section, on or before
the thirtieth day of June, two thousand four
, or when the license is
due for renewal, whichever is earlier, and has received written
notice of the assessment and option to elect inactive status, at
least thirty days before the licensure renewal date or by
the
thirtieth day of May, two thousand four
, is subject to a civil
penalty in the amount of two hundred fifty dollars payable to
either the board of medicine or the board of osteopathy.
Furthermore, and notwithstanding any provision of chapter thirty to
the contrary, the board of medicine or the board of osteopathy
shall immediately suspend the license to practice medicine or
podiatry of any physician who received notice and failed to pay the
special assessment by the first day of July, two thousand four.
Any license to practice medicine suspended pursuant to this section
shall remain suspended until both the special assessment and the
civil penalty are paid in full.
(f) The entire proceeds of the civil penalty collected
pursuant to subsection (e) of this section shall be dedicated to
the company. The board of medicine and the board of osteopathy
shall promptly pay over to the company all amounts collected
pursuant to subsection (e) of this section to be used as
policyholder surplus for the company.
(g) The requirements of subsection (b), (c), (d), (e) and (f)
of this section shall terminate on January 1, 2008 unless continued
or reestablished.
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