H. B. 4655
(By Delegates Compton and Perdue)
[Introduced February 22, 2002; referred to the
Committee on Government Organization.]
A BILL to amend and reenact sections fourteen and sixteen, article
three, chapter thirty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to amend and
reenact section twenty, article four of said chapter; to amend
and reenact section seven, article five of said chapter; to
amend and reenact section eleven, article seven of said
chapter; to amend and reenact section eight, article eight of
said chapter; to amend and reenact section eleven, article
fourteen of said chapter; to amend and reenact section two,
article fourteen-a of said chapter; to amend and reenact
section six, article fifteen of said chapter; to amend and
reenact section eleven, article sixteen of said chapter; and to amend and reenact section ten, article twenty of said
chapter, all relating to
providing licensure penalties for
health care providers in default on medical education
scholarship and loan service obligations.
Be it enacted by the Legislature of West Virginia:
That sections fourteen and sixteen, article three, chapter
thirty of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; that section
twenty, article four of said chapter be amended and reenacted; that
section seven, article five of said chapter be amended and
reenacted; that section eleven, article seven of said chapter be
amended and reenacted; that section eight, article eight of said
chapter be amended and reenacted; that section eleven, article
fourteen of said chapter be amended and reenacted; that section
two, article fourteen-a of said chapter be amended and reenacted;
that section six, article fifteen of said chapter be amended and
reenacted; that section eleven, article sixteen of said chapter be
amended and reenacted; and that section ten, article twenty of said
chapter be amended and reenacted, all to read as follows:
ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-14. Professional discipline of physicians and podiatrists;
reporting of information to board pertaining to professional malpractice and professional
incompetence required; penalties; grounds for license
denial and discipline of physicians and podiatrists;
investigations; physical and mental examinations;
hearings; sanctions; summary sanctions; reporting by
the board; reapplication; civil and criminal
immunity; voluntary limitation of license; probable
cause determinations.
(a) The board may independently initiate disciplinary
proceedings as well as initiate disciplinary proceedings based on
information received from medical peer review committees,
physicians, podiatrists, hospital administrators, professional
societies and others.
The board may initiate investigations as to professional
incompetence or other reasons for which a licensed physician or
podiatrist may be adjudged unqualified based upon criminal
convictions; complaints by citizens, pharmacists, physicians,
podiatrists, peer review committees, hospital administrators,
professional societies or others; or if there are five judgments or
settlements within the most recent five-year period in excess of
fifty thousand dollars each. The board may not consider any
judgments or settlements as conclusive evidence of professional incompetence or conclusive lack of qualification to practice.
(b) Upon request of the board, any medical peer review
committee in this state shall report any information that may
relate to the practice or performance of any physician or
podiatrist known to that medical peer review committee. Copies of
the requests for information from a medical peer review committee
may be provided to the subject physician or podiatrist if, in the
discretion of the board, the provision of such copies will not
jeopardize the board's investigation. In the event that copies are
so provided, the subject physician or podiatrist is allowed fifteen
days to comment on the requested information and such comments must
be considered by the board.
After the completion of the hospital's formal disciplinary
procedure and after any resulting legal action, the chief executive
officer of the hospital shall report in writing to the board within
sixty days the name of any member of the medical staff or any other
physician or podiatrist practicing in the hospital whose hospital
privileges have been revoked, restricted, reduced or terminated for
any cause, including resignation, together with all pertinent
information relating to such action. The chief executive officer
shall also report any other formal disciplinary action taken against any physician or podiatrist by the hospital upon the
recommendation of its medical staff relating to professional
ethics, medical incompetence, medical malpractice, moral turpitude
or drug or alcohol abuse. Temporary suspension for failure to
maintain records on a timely basis or failure to attend staff or
section meetings need not be reported. Voluntary cessation of
hospital privileges for reasons unrelated to professional
competence or ethics need not be reported.
Any professional society in this state comprised primarily of
physicians or podiatrists which takes formal disciplinary action
against a member relating to professional ethics, professional
incompetence, professional malpractice, moral turpitude or drug or
alcohol abuse, shall report in writing to the board within sixty
days of a final decision the name of the member, together with all
pertinent information relating to the action.
Every person, partnership, corporation, association, insurance
company, professional society or other organization providing
professional liability insurance to a physician or podiatrist in
this state shall submit to the board the following information
within thirty days from any judgment, or settlement of a civil or
medical malpractice action excepting product liability actions: The date of any judgment or settlement; whether any appeal has been
taken on the judgment, and, if so, by which party; the amount of
any settlement or judgment against the insured; and other
information as the board may require.
Within thirty days after a person known to be a physician or
podiatrist licensed or otherwise lawfully practicing medicine and
surgery or podiatry in this state or applying to be so licensed is
convicted of a felony under the laws of this state, or of any crime
under the laws of this state involving alcohol or drugs in any way,
including any controlled substance under state or federal law, the
clerk of the court of record in which the conviction was entered
shall forward to the board a certified true and correct abstract of
record of the convicting court. The abstract shall include the
name and address of the physician or podiatrist or applicant, the
nature of the offense committed and the final judgment and sentence
of the court.
Upon a determination of the board that there is probable cause
to believe that any person, partnership, corporation, association,
insurance company, professional society or other organization has
failed or refused to make a report required by this subsection, the
board shall provide written notice to the alleged violator stating the nature of the alleged violation and the time and place at which
the alleged violator shall appear to show good cause why a civil
penalty should not be imposed. The hearing shall be conducted in
accordance with the provisions of article five, chapter
twenty-nine-a of this code. After reviewing the record of the
hearing, if the board determines that a violation of this
subsection has occurred, the board shall assess a civil penalty of
not less than one thousand dollars nor more than ten thousand
dollars against the violator. Anyone so assessed shall be notified
of the assessment in writing and the notice shall specify the
reasons for the assessment. If the violator fails to pay the
amount of the assessment to the board within thirty days, the
attorney general may institute a civil action in the circuit court
of Kanawha County to recover the amount of the assessment. In any
such civil action, the court's review of the board's action shall
be conducted in accordance with the provisions of section four,
article five, chapter twenty-nine-a of this code. Notwithstanding
any other provision of this article to the contrary, when there are
conflicting views by recognized experts as to whether any alleged
conduct breaches an applicable standard of care, the evidence must
be clear and convincing before the board may find that the physician has demonstrated a lack of professional competence to
practice with a reasonable degree of skill and safety for patients.
Any person may report to the board relevant facts about the
conduct of any physician or podiatrist in this state which in the
opinion of that person amounts to professional malpractice or
professional incompetence.
The board shall provide forms for filing reports pursuant to
this section. Reports submitted in other forms shall be accepted
by the board.
The filing of a report with the board pursuant to any
provision of this article, any investigation by the board or any
disposition of a case by the board does not preclude any action by
a hospital, other health care facility or professional society
comprised primarily of physicians or podiatrists to suspend,
restrict or revoke the privileges or membership of the physician or
podiatrist.
(c) The board may deny an application for license or other
authorization to practice medicine and surgery or podiatry in this
state and may discipline a physician or podiatrist licensed or
otherwise lawfully practicing in this state who, after a hearing,
has been adjudged by the board as unqualified due to any of the following reasons:
(1) Attempting to obtain, obtaining, renewing or attempting to
renew a license to practice medicine and surgery or podiatry by
bribery, fraudulent misrepresentation or through known error of the
board;
(2) Being found guilty of a crime in any jurisdiction, which
offense is a felony, involves moral turpitude or directly relates
to the practice of medicine. Any plea of nolo contendere is a
conviction for the purposes of this subdivision;
(3) False or deceptive advertising;
(4) Aiding, assisting, procuring or advising any unauthorized
person to practice medicine and surgery or podiatry contrary to
law;
(5) Making or filing a report that the person knows to be
false; intentionally or negligently failing to file a report or
record required by state or federal law; willfully impeding or
obstructing the filing of a report or record required by state or
federal law; or inducing another person to do any of the foregoing.
The reports and records as are herein covered mean only those that
are signed in the capacity as a licensed physician or podiatrist;
(6) Requesting, receiving or paying directly or indirectly a payment, rebate, refund, commission, credit or other form of profit
or valuable consideration for the referral of patients to any
person or entity in connection with providing medical or other
health care services or clinical laboratory services, supplies of
any kind, drugs, medication or any other medical goods, services or
devices used in connection with medical or other health care
services;
(7) Unprofessional conduct by any physician or podiatrist in
referring a patient to any clinical laboratory or pharmacy in which
the physician or podiatrist has a proprietary interest unless the
physician or podiatrist discloses in writing such interest to the
patient. The written disclosure shall indicate that the patient
may choose any clinical laboratory for purposes of having any
laboratory work or assignment performed or any pharmacy for
purposes of purchasing any prescribed drug or any other medical
goods or devices used in connection with medical or other health
care services;
As used herein, "proprietary interest" does not include an
ownership interest in a building in which space is leased to a
clinical laboratory or pharmacy at the prevailing rate under a
lease arrangement that is not conditional upon the income or gross receipts of the clinical laboratory or pharmacy;
(8) Exercising influence within a patient-physician
relationship for the purpose of engaging a patient in sexual
activity;
(9) Making a deceptive, untrue or fraudulent representation in
the practice of medicine and surgery or podiatry;
(10) Soliciting patients, either personally or by an agent,
through the use of fraud, intimidation or undue influence;
(11) Failing to keep written records justifying the course of
treatment of a patient, the records to include, but not be limited
to, patient histories, examination and test results and treatment
rendered, if any;
(12) Exercising influence on a patient in such a way as to
exploit the patient for financial gain of the physician or
podiatrist or of a third party. Any influence includes, but is not
limited to, the promotion or sale of services, goods, appliances or
drugs;
(13) Prescribing, dispensing, administering, mixing or
otherwise preparing a prescription drug, including any controlled
substance under state or federal law, other than in good faith and
in a therapeutic manner in accordance with accepted medical standards and in the course of the physician's or podiatrist's
professional practice: Provided, That a physician who discharges
his or her professional obligation to relieve the pain and
suffering and promote the dignity and autonomy of dying patients in
his or her care, and in so doing, exceeds the average dosage of a
pain relieving controlled substance, in Schedule II and III of the
Uniform Control Substance Act, does not violate this article;
(14) Performing any procedure or prescribing any therapy that,
by the accepted standards of medical practice in the community,
would constitute experimentation on human subjects without first
obtaining full, informed and written consent;
(15) Practicing or offering to practice beyond the scope
permitted by law or accepting and performing professional
responsibilities that the person knows or has reason to know he or
she is not competent to perform;
(16) Delegating professional responsibilities to a person when
the physician or podiatrist delegating the responsibilities knows
or has reason to know that the person is not qualified by training,
experience or licensure to perform them;
(17) Violating any provision of this article or a rule or
order of the board, or failing to comply with a subpoena or subpoena duces tecum issued by the board;
(18) Conspiring with any other person to commit an act or
committing an act that would tend to coerce, intimidate or preclude
another physician or podiatrist from lawfully advertising his or
her services;
(19) Gross negligence in the use and control of prescription
forms;
(20) Professional incompetence;
(21) The inability to practice medicine and surgery or
podiatry with reasonable skill and safety due to physical or mental
disability, including deterioration through the aging process or
loss of motor skill or abuse of drugs or alcohol. A physician or
podiatrist adversely affected under this subdivision shall be
afforded an opportunity at reasonable intervals to demonstrate that
he or she can resume the competent practice of medicine and surgery
or podiatry with reasonable skill and safety to patients. In any
proceeding under this subdivision, neither the record of
proceedings nor any orders entered by the board shall be used
against the physician or podiatrist in any other proceeding; or
(22)
The applicant or licensee is in breach of a service
obligation resulting from the applicant's or licensee's receipt of state or federal funding for the applicant's or licensee's medical
education.
(d) The board shall deny any application for a license or
other authorization to practice medicine and surgery or podiatry in
this state to any applicant who, and shall revoke the license of
any physician or podiatrist licensed or otherwise lawfully
practicing within this state who, is found guilty by any court of
competent jurisdiction of any felony involving prescribing,
selling, administering, dispensing, mixing or otherwise preparing
any prescription drug, including any controlled substance under
state or federal law, for other than generally accepted therapeutic
purposes. Presentation to the board of a certified copy of the
guilty verdict or plea rendered in the court is sufficient proof
thereof for the purposes of this article. A plea of nolo
contendere has the same effect as a verdict or plea of guilt.
(e) The board may refer any cases coming to its attention to
an appropriate committee of an appropriate professional
organization for investigation and report. Except for complaints
related to obtaining initial licensure to practice medicine and
surgery or podiatry in this state by bribery or fraudulent
misrepresentation, any complaint filed more than two years after the complainant knew, or in the exercise of reasonable diligence
should have known, of the existence of grounds for the complaint,
shall be dismissed: Provided, That in cases of conduct alleged to
be part of a pattern of similar misconduct or professional
incapacity that, if continued, would pose risks of a serious or
substantial nature to the physician or podiatrist's current
patients, the investigating body may conduct a limited
investigation related to the physician or podiatrist's current
capacity and qualification to practice, and may recommend
conditions, restrictions or limitations on the physician or
podiatrist's license to practice that it considers necessary for
the protection of the public. Any report shall contain
recommendations for any necessary disciplinary measures and shall
be filed with the board within ninety days of any referral. The
recommendations shall be considered by the board and the case may
be further investigated by the board. The board after full
investigation shall take whatever action it deems appropriate, as
provided herein.
(f) The investigating body, as provided for in subsection (e)
of this section, may request and the board under any circumstances
may require a physician or podiatrist or person applying for licensure or other authorization to practice medicine and surgery
or podiatry in this state to submit to a physical or mental
examination by a physician or physicians approved by the board. A
physician or podiatrist submitting to any such examination has the
right, at his or her expense, to designate another physician to be
present at the examination and make an independent report to the
investigating body or the board. The expense of the examination
shall be paid by the board. Any individual who applies for or
accepts the privilege of practicing medicine and surgery or
podiatry in this state is deemed to have given his or her consent
to submit to all examinations when requested to do so in writing by
the board and to have waived all objections to the admissibility of
the testimony or examination report of any examining physician on
the ground that the testimony or report is privileged
communication. If a person fails or refuses to submit to any such
examination under circumstances which the board finds are not
beyond his or her control, failure or refusal is prima facie
evidence of his or her inability to practice medicine and surgery
or podiatry competently and in compliance with the standards of
acceptable and prevailing medical practice.
(g) In addition to any other investigators it employs, the board may appoint one or more licensed physicians to act for it in
investigating the conduct or competence of a physician.
(h) In every disciplinary or licensure denial action, the
board shall furnish the physician or podiatrist or applicant with
written notice setting out with particularity the reasons for its
action. Disciplinary and licensure denial hearings shall be
conducted in accordance with the provisions of article five,
chapter twenty-nine-a of this code. However, hearings shall be
heard upon sworn testimony and the rules of evidence for trial
courts of record in this state shall apply to all hearings. A
transcript of all hearings under this section shall be made, and
the respondent may obtain a copy of the transcript at his or her
expense. The physician or podiatrist has the right to defend
against any charge by the introduction of evidence, the right to be
represented by counsel, the right to present and cross-examine
witnesses and the right to have subpoenas and subpoenas duces tecum
issued on his or her behalf for the attendance of witnesses and the
production of documents. The board shall make all its final
actions public. The order shall contain the terms of all action
taken by the board.
(i) In disciplinary actions in which probable cause has been found by the board, the board shall
, within twenty days of the date
of service of the written notice of charges or sixty days prior to
the date of the scheduled hearing, whichever is sooner, provide the
respondent with the complete identity, address, and telephone
number of any person known to the board with knowledge about the
facts of any of the charges; provide a copy of any statements in
the possession of or under the control of the board; provide a list
of proposed witnesses with addresses and telephone numbers, with a
brief summary of his or her anticipated testimony; provide
disclosure of any trial expert pursuant to the requirements of Rule
26(b)(4) of the West Virginia Rules of Civil Procedure; provide
inspection and copying of the results of any reports of physical
and mental examinations or scientific tests or experiments; and
provide a list and copy of any proposed exhibit to be used at the
hearing: Provided, That the board shall not be required to furnish
or produce any materials which contain opinion work product
information or would be violative of the attorney-client privilege.
Within twenty days of the date of service of the written notice of
charges
, the board shall be required to disclose any exculpatory
evidence with a continuing duty to do so throughout the
disciplinary process. Within thirty days of receipt of the board's mandatory discovery, the respondent shall provide the board with
the complete identity, address, and telephone number of any person
known to the respondent with knowledge about the facts of any of
the charges; provide a list of proposed witnesses with addresses
and telephone numbers, to be called at hearing, with a brief
summary of his or her anticipated testimony; provide disclosure of
any trial expert pursuant to the requirements of Rule 26(b)(4) of
the West Virginia Rules of Civil Procedure; provide inspection and
copying of the results of any reports of physical and mental
examinations or scientific tests or experiments; and provide a list
and copy of any proposed exhibit to be used at the hearing.
(j) Whenever it finds any person unqualified because of any of
the grounds set forth in subsection (c) of this section, the board
may enter an order imposing one or more of the following:
(1) Deny his or her application for a license or other
authorization to practice medicine and surgery or podiatry;
(2) Administer a public reprimand;
(3) Suspend, limit or restrict his or her license or other
authorization to practice medicine and surgery or podiatry for not
more than five years, including limiting the practice of that
person to, or by the exclusion of, one or more areas of practice, including limitations on practice privileges;
(4) Revoke his or her license or other authorization to
practice medicine and surgery or podiatry or to prescribe or
dispense controlled substances;
(5) Require him or her to submit to care, counseling or
treatment designated by the board as a condition for initial or
continued licensure or renewal of licensure or other authorization
to practice medicine and surgery or podiatry;
(6) Require him or her to participate in a program of
education prescribed by the board;
(7) Require him or her to practice under the direction of a
physician or podiatrist designated by the board for a specified
period of time; and
(8) Assess a civil fine of not less than one thousand dollars
nor more than ten thousand dollars.
(k) Notwithstanding the provisions of section eight, article
one, chapter thirty of this code, if the board determines the
evidence in its possession indicates that a physician's or
podiatrist's continuation in practice or unrestricted practice
constitutes an immediate danger to the public, the board may take
any of the actions provided for in subsection (i) of this section on a temporary basis and without a hearing, if institution of
proceedings for a hearing before the board are initiated
simultaneously with the temporary action and begin within fifteen
days of the action. The board shall render its decision within
five days of the conclusion of a hearing under this subsection.
(l) Any person against whom disciplinary action is taken
pursuant to the provisions of this article has the right to
judicial review as provided in articles five and six, chapter
twenty-nine-a of this code: Provided, That a circuit judge may
also remand the matter to the board if it appears from competent
evidence presented to it in support of a motion for remand that
there is newly discovered evidence of such a character as ought to
produce an opposite result at a second hearing on the merits before
the board and:
(1) The evidence appears to have been discovered since the
board hearing; and
(2) The physician or podiatrist exercised due diligence in
asserting his or her evidence and that due diligence would not have
secured the newly discovered evidence prior to the appeal. Except
with regard to an order of temporary suspension of a license for
six months or less, a person may not practice medicine and surgery or podiatry or deliver health care services in violation of any
disciplinary order revoking or limiting his or her license while
any such review is pending. Within sixty days, the board shall
report its final action regarding restriction, limitation,
suspension or revocation of the license of a physician or
podiatrist, limitation on practice privileges or other disciplinary
action against any physician or podiatrist to all appropriate state
agencies, appropriate licensed health facilities and hospitals,
insurance companies or associations writing medical malpractice
insurance in this state, the American medical association, the
American podiatry association, professional societies of physicians
or podiatrists in the state and any entity responsible for the
fiscal administration of medicare and medicaid.
(m) Any person against whom disciplinary action has been taken
under the provisions of this article shall at reasonable intervals
be afforded an opportunity to demonstrate that he or she can resume
the practice of medicine and surgery or podiatry on a general or
limited basis. At the conclusion of a suspension, limitation or
restriction period, the physician or podiatrist has the right to
resume practice pursuant to the orders of the board: Provided,
That for a revocation pursuant to subsection (d) of this section a reapplication may not be accepted for a period of at least five
years.
(n) Any entity, organization or person, including the board,
any member of the board, its agents or employees and any entity or
organization or its members referred to in this article, any
insurer, its agents or employees, a medical peer review committee
and a hospital governing board, its members or any committee
appointed by it acting without malice and without gross negligence
in making any report or other information available to the board or
a medical peer review committee pursuant to law and any person
acting without malice and without gross negligence who assists in
the organization, investigation or preparation of any such report
or information or assists the board or a hospital governing body or
any committee in carrying out any of its duties or functions
provided by law, is immune from civil or criminal liability, except
that the unlawful disclosure of confidential information possessed
by the board is a misdemeanor as provided for in this article.
(o) A physician or podiatrist may request in writing to the
board a limitation on or the surrendering of his or her license to
practice medicine and surgery or podiatry or other appropriate
sanction as provided herein. The board may grant the request and, if it considers it appropriate, may waive the commencement or
continuation of other proceedings under this section. A physician
or podiatrist whose license is limited or surrendered or against
whom other action is taken under this subsection has a right at
reasonable intervals to petition for removal of any restriction or
limitation on or for reinstatement of his or her license to
practice medicine and surgery or podiatry.
(p) In every case considered by the board under this article
regarding discipline or licensure, whether initiated by the board
or upon complaint or information from any person or organization,
the board shall make a preliminary determination as to whether
probable cause exists to substantiate charges of disqualification
due to any reason set forth in subsection (c) of this section. If
probable cause is found to exist, all proceedings on the charges
shall be open to the public who shall be entitled to all reports,
records, and nondeliberative materials introduced at the hearing,
including the record of the final action taken: Provided, That any
medical records, which were introduced at the hearing and which
pertain to a person who has not expressly waived his or her right
to the confidentiality of the records, may not be open to the
public nor is the public entitled to the records.
(q) Notwithstanding any other provisions of this article, the
board may at any time, on its own motion, or upon motion by the
complainant, or upon motion by the physician or podiatrist, or by
stipulation of the parties, refer the matter to mediation. The
board shall obtain a list from the West Virginia state bar's
mediator referral service of certified mediators with expertise in
professional disciplinary matters. The board and the physician or
podiatrist may choose a mediator from this list. If the board and
the physician or podiatrist are unable to agree on a mediator, the
board shall designate a mediator from this listing by neutral
rotation. The mediation shall not be considered a proceeding open
to the public and any reports and records introduced at the
mediation shall not become part of the public record. The mediator
and all participants in the mediation shall maintain and preserve
the confidentiality of all mediation proceedings and records. The
mediator may not be subpoenaed or called to testify or otherwise be
subject to process requiring disclosure of confidential information
in any proceeding relating to or arising out of the disciplinary or
licensure matter mediated: Provided, That any confidentiality
agreement and any written agreement made and signed by the parties
as a result of mediation may be used in any proceedings subsequently instituted to enforce the written agreement. The
agreements may be used in other proceedings if the parties agree in
writing to do this.
§30-3-16. Physician assistants; definitions; board of medicine
rules; annual report; licensure; temporary license;
relicensure; job description required; revocation or
suspension of licensure; responsibilities of
supervising physician; legal responsibility for
physician assistants; reporting by health care
facilities; identification; limitations on employment
and duties; fees; continuing education; unlawful
representation of physician assistant as a physician;
criminal penalties.
(a) As used in this section:
(1) "Physician assistant" means an assistant to a physician
who is a graduate of an approved program of instruction in primary
health care or surgery, has attained a baccalaureate or master's
degree, has passed the national certification examination and is
qualified to perform direct patient care services under the
supervision of a physician;
(2) "Physician assistant-midwife" means a physician assistant
who meets all qualifications set forth under subdivision (1) of this subsection and fulfills the requirements set forth in
subsection (d) of this section; is subject to all provisions of
this section; and assists in the management and care of a woman and
her infant during the prenatal, delivery and postnatal periods;
(3) "Supervising physician" means a doctor or doctors of
medicine or podiatry permanently licensed in this state who assume
legal and supervisory responsibility for the work or training of
any physician assistant under his or her supervision;
(4) "Approved program" means an educational program for
physician assistants approved and accredited by the committee on
allied health education and accreditation on behalf of the American
medical association or its successor; and
(5) "Health care facility" means any licensed hospital,
nursing home, extended care facility, state health or mental
institution, clinic or physician's office.
(b) The board shall promulgate rules pursuant to the
provisions of article three, chapter twenty-nine-a of this code
governing the extent to which physician assistants may function in
this state. The rules shall provide that the physician assistant
is limited to the performance of those services for which he or she
is trained and that he or she performs only under the supervision and control of a physician permanently licensed in this state, but
that supervision and control does not require the personal presence
of the supervising physician at the place or places where services
are rendered if the physician assistant's normal place of
employment is on the premises of the supervising physician. The
supervising physician may send the physician assistant off the
premises to perform duties under his or her direction, but a
separate place of work for the physician assistant may not be
established. In promulgating the rules, the board shall allow the
physician assistant to perform those procedures and examinations
and in the case of certain authorized physician assistants to
prescribe at the direction of his or her supervising physician in
accordance with subsection (l) of this section those categories of
drugs submitted to it in the job description required by this
section. Certain authorized physician assistants may pronounce
death in accordance with the rules proposed by the board which
receive legislative approval. The board shall compile and publish
an annual report that includes a list of currently licensed
physician assistants and their employers and location in the state.
(c) The board shall license as a physician assistant any
person who files an application together with a proposed job description and furnishes satisfactory evidence to it that he or
she has met the following standards:
(1) He or she is a graduate of an approved program of
instruction in primary health care or surgery;
(2) He or she has passed the certifying examination for a
primary care physician assistant administered by the national
commission on certification of physician assistants and has
maintained certification by that commission so as to be currently
certified;
(3) He or she is of good moral character; and
(4) He or she has attained a baccalaureate or master's degree.
(d) The board shall license as a physician assistant-midwife
any person who meets the standards set forth under subsection (c)
of this section and, in addition thereto, the following standards:
(1) He or she is a graduate of a school of midwifery
accredited by the American college of nurse-midwives;
(2) He or she has passed an examination approved by the board;
(3) He or she practices midwifery under the supervision of a
board certified obstetrician, gynecologist or a board certified
family practice physician who routinely practices obstetrics.
(e) The board may license as a physician assistant any person who files an application together with a proposed job description
and furnishes satisfactory evidence that he or she is of good moral
character and meets either of the following standards:
(1) He or she is a graduate of an approved program of
instruction in primary health care or surgery prior to the first
day of July, one thousand nine hundred ninety-four, and has passed
the certifying examination for a physician assistant administered
by the national commission on certification of physician assistants
and has maintained certification by that commission so as to be
currently certified; or
(2) He or she had been certified by the board as a physician
assistant then classified as "Type B", prior to the first day of
July, one thousand nine hundred eighty-three.
Licensure of an assistant to a physician practicing the
specialty of ophthalmology is permitted under this section:
Provided, That a physician assistant may not dispense a
prescription for a refraction.
(f) When any graduate of an approved program submits an
application to the board for a physician assistant license,
accompanied by a job description as referenced by this section, the
board shall issue to that applicant a temporary license allowing that applicant to function as a physician assistant until the
applicant successfully passes the national commission on
certification of physician assistants' certifying examination:
Provided, That the applicant shall sit for and obtain a passing
score on the examination next offered following graduation from the
approved program. No applicant shall receive a temporary license
who, following graduation from an approved program, has sat for and
not obtained a passing score on the examination. A physician
assistant who has not been certified by the national board of
medical examiners on behalf of the national commission on
certification of physician assistants will be restricted to work
under the direct supervision of the supervising physician.
A physician assistant who has been issued a temporary license
shall, within thirty days of receipt of written notice from the
national commission on certification of physician assistants of his
or her performance on the certifying examination, notify the board
in writing of his or her results. In the event of failure of that
examination, the temporary license shall expire and terminate
automatically, and the board shall so notify the physician
assistant in writing.
(g) Any physician applying to the board to supervise a physician assistant shall affirm that the range of medical services
set forth in the physician assistant's job description are
consistent with the skills and training of the supervising
physician and the physician assistant. Before a physician
assistant can be employed or otherwise use his or her skills, the
supervising physician and the physician assistant must obtain
approval of the job description from the board. The board may
revoke or suspend any license of an assistant to a physician for
cause, and including the denial, suspension or revocation of the
license application or license of an assistant to a physician who
is in breach of a service obligation resulting from that
applicant's or licensee's receipt of state or federal funding for
the applicant's or licensee's physician assistant education,
after
giving that assistant an opportunity to be heard in the manner
provided by article five, chapter twenty-nine-a of this code and as
set forth in rules duly adopted by the board.
(h) The supervising physician is responsible for observing,
directing and evaluating the work, records and practices of each
physician assistant performing under his or her supervision. He or
she shall notify the board in writing of any termination of his or
her supervisory relationship with a physician assistant within ten days of the termination. The legal responsibility for any
physician assistant remains with the supervising physician at all
times, including occasions when the assistant under his or her
direction and supervision, aids in the care and treatment of a
patient in a health care facility. In his or her absence, a
supervising physician must designate an alternate supervising
physician, however, the legal responsibility remains with the
supervising physician at all times. A health care facility is not
legally responsible for the actions or omissions of the physician
assistant unless the physician assistant is an employee of the
facility.
(i) The acts or omissions of a physician assistant employed by
health care facilities providing inpatient or outpatient services
shall be the legal responsibility of the facilities. Physician
assistants employed by facilities in staff positions shall be
supervised by a permanently licensed physician.
(j) A health care facility shall report in writing to the
board within sixty days after the completion of the facility's
formal disciplinary procedure, and also after the commencement, and
again after the conclusion, of any resulting legal action, the name
of any physician assistant practicing in the facility whose privileges at the facility have been revoked, restricted, reduced
or terminated for any cause including resignation, together with
all pertinent information relating to the action. The health care
facility shall also report any other formal disciplinary action
taken against any physician assistant by the facility relating to
professional ethics, medical incompetence, medical malpractice,
moral turpitude or drug or alcohol abuse. Temporary suspension for
failure to maintain records on a timely basis or failure to attend
staff or section meetings need not be reported.
(k) When functioning as a physician assistant, the physician
assistant shall wear a name tag that identifies him or her as a
physician assistant. A two and one-half by three and one-half inch
card of identification shall be furnished by the board upon
licensure of the physician assistant.
(l) A physician assistant may write or sign prescriptions or
transmit prescriptions by word of mouth, telephone or other means
of communication at the direction of his or her supervising
physician. The board shall promulgate rules pursuant to the
provisions of article three, chapter twenty-nine-a of this code
governing the eligibility and extent to which a physician assistant
may prescribe at the direction of the supervising physician. The rules shall include, but not be limited to, the following:
(1) Provisions for approving a state formulary classifying
pharmacologic categories of drugs that may be prescribed by a
physician assistant:
(A) The following categories of drugs shall be excluded from
the formulary: Schedules I and II of the uniform controlled
substances act, anticoagulants, antineoplastic,
radiopharmaceuticals, general anesthetics and radiographic contrast
materials;
(B) Drugs listed under Schedule III shall be limited to a
seventy-two hour supply without refill;
(C) Categories of other drugs may be excluded as determined by
the board;
(2) All pharmacological categories of drugs to be prescribed
by a physician assistant shall be listed in each job description
submitted to the board as required in subsection (g) of this
section;
(3) The maximum dosage a physician assistant may prescribe;
(4) A requirement that to be eligible for prescription
privileges, a physician assistant shall have performed patient care
services for a minimum of two years immediately preceding the submission to the board of the job description containing
prescription privileges and shall have successfully completed an
accredited course of instruction in clinical pharmacology approved
by the board; and
(5) A requirement that to maintain prescription privileges, a
physician assistant shall continue to maintain national
certification as a physician assistant, and in meeting the national
certification requirements shall complete a minimum of ten hours of
continuing education in rational drug therapy in each certification
period. Nothing in this subsection shall be construed to permit a
physician assistant to independently prescribe or dispense drugs.
(m) A supervising physician may not supervise at any one time
more than three full-time physician assistants or their equivalent,
except that a physician may supervise up to four hospital-employed
physician assistants. No physician shall supervise more than four
physician assistants at any one time.
A physician assistant may not sign any prescription, except in
the case of an authorized physician assistant at the direction of
his or her supervising physician in accordance with the provisions
of subsection (l) of this section. A physician assistant may not
perform any service that his or her supervising physician is not qualified to perform. A physician assistant may not perform any
service that is not included in his or her job description and
approved by the board as provided for in this section.
The provisions of this section do not authorize any physician
assistant to perform any specific function or duty delegated by
this code to those persons licensed as chiropractors, dentists,
dental hygienists, optometrists or pharmacists or certified as
nurse anesthetists.
(n) Each application for licensure submitted by a licensed
supervising physician under this section is to be accompanied by a
fee of one hundred dollars. A fee of fifty dollars is to be
charged for the biennial renewal of the license. A fee of
twenty-five dollars is to be charged for any change of supervising
physician.
(o) Beginning with the biennial renewal forms completed by
physician assistants and submitted to the board in the year one
thousand nine hundred ninety-three, as a condition of renewal of
physician assistant license, each physician assistant shall provide
written documentation pursuant to rules promulgated by the board in
accordance with chapter twenty-nine-a of this code of participation
in and successful completion during the preceding two-year period of continuing education, in the number of hours specified by the
board by rule, designated as Category I by the American medical
association, American academy of physician assistants or the
academy of family physicians, and continuing education, in the
number of hours specified by the board by rule, designated as
Category II by the association or either academy. Notwithstanding
any provision of this chapter to the contrary, failure to timely
submit the required written documentation shall result in the
automatic suspension of any license as a physician assistant until
the written documentation is submitted to and approved by the
board.
(p) It is unlawful for any physician assistant to represent to
any person that he or she is a physician, surgeon or podiatrist.
Any person who violates the provisions of this subsection is guilty
of a felony and, upon conviction thereof, shall be imprisoned in
the penitentiary a state correctional facility for not less than
one nor more than two years, or be fined not more than two thousand
dollars, or both fined and imprisoned.
(q) All physician assistants holding valid certificates issued
by the board prior to the first day of July, one thousand nine
hundred ninety-two, shall be considered to be licensed under this section.
ARTICLE 4. WEST VIRGINIA DENTAL PRACTICE ACT.
§30-4-20. Refusal to issue or renew, suspension or revocation of
license; disciplinary action.
(a) The board may refuse to issue, refuse to renew, suspend,
revoke or limit any license or practice privilege of a licensee and
may take disciplinary action against a licensee who, after hearing,
has been adjudged by the board as unqualified for any of the
following reasons:
(1) The presentation to the board of any diploma, license or
certificate illegally or fraudulently obtained, or one obtained
from an institution which is not reputable, or one obtained from an
unrecognized or irregular institution or state board;
(2) Suspension or revocation of a license issued by another
state or territory on grounds which would be the basis of
discipline in this state;
(3) Incompetent, negligent or willful misconduct in the
practice of dentistry or dental hygiene, which shall include the
departure from, or the failure to conform to, the minimal standards
of acceptable and prevailing dental or dental hygiene practice in
their area of expertise as shall be determined by the board. The
board need not establish actual injury to the patient in order to adjudge a licensee guilty of this conduct;
(4) Engaging in conduct that indicates a lack of knowledge of,
an inability to apply or the negligent application of principles or
skills of dentistry or dental hygiene;
(5) Being guilty of gross ignorance or gross inefficiency in
his or her profession;
(6) Being convicted of a felony; and a certified copy of the
record of the court of conviction shall be sufficient proof of
conviction;
(7) Announcing or otherwise holding himself or herself out to
the public as a specialist or as being specially qualified in any
particular branch of dentistry or as giving special attention to
any branch of dentistry or as limiting his or her practice to any
branch of dentistry without first complying with the requirements
established by the board for the specialty and having been issued
a certificate of qualification in the specialty by the board; or
(8)
The applicant or licensee is in breach of a service
obligation resulting from the applicant's or licensee's receipt of
state or federal funding for the applicant's or licensee's dental
education; or
(8) (9) Being guilty of unprofessional conduct as contained in the American dental association principles of ethics and code of
professional conduct. The following acts or any of them are
conclusively presumed to be unprofessional conduct:
(A) Being guilty of any fraud or deception;
(B) Committing a criminal operation or being convicted of a
crime involving moral turpitude;
(C) Abusing alcohol or drugs;
(D) Violating any professional confidence or disclosing any
professional secret;
(E) Being grossly immoral;
(F) Employing what are known as "cappers" or "steerers" to
obtain business;
(G) Obtaining any fee by fraud or misrepresentation;
(H) Employing directly or indirectly, or directing or
permitting any suspended or unlicenced person so employed, to
perform operations of any kind or to treat lesions of the human
teeth or jaws or correct malimposed formations thereof;
(I) Practicing, or offering, or undertaking to practice
dentistry under any firm name or trade name not approved by the
board;
(J) Having a professional connection or association with, or lending his or her name to another, for the illegal practice of
dentistry, or professional connection or association with any
person, firm or corporation holding himself, themselves or itself
out in any manner contrary to this article;
(K) Making use of any advertising relating to the use of any
drug or medicine of unknown formula;
(L) Advertising to practice dentistry or perform any operation
thereunder without causing pain;
(M) Advertising professional superiority or the performance of
professional services in a superior manner;
(N) Advertising to guarantee any dental service;
(O) Advertising in any manner that is false or misleading in
any material respect;
(P) Soliciting subscriptions from individuals within or
without the state for, or advertising or offering to individuals
within or without the state, a course or instruction or course
materials in any phase, part or branch of dentistry or dental
hygiene in any journal, newspaper, magazine or dental publication,
or by means of radio, television or United States mail, or in or by
any other means of contacting individuals: Provided, That the
provisions of this paragraph may not be construed so as to prohibit: (i) An individual dentist or dental hygienist from
presenting articles pertaining to procedures or technique to state
or national journals or accepted dental publications; or (ii)
educational institutions approved by the board from offering
courses or instruction or course materials to individual dentists
and dental hygienists from within or without the state; or
(Q) Engaging in any action or conduct which would have
warranted the denial of the license.
(b) The term advertising, as used in this section, shall be
construed to include any type of public media.
(c) Disciplinary action includes, but is not limited to, a
reprimand, censure, probation, administrative fine not to exceed
one thousand dollars per day per violation and mandatory attendance
at continuing professional education seminars.
(d) This entire section is passed in the interest of the
public health, safety and welfare and its provisions must be
liberally construed to carry out its object and purpose.
ARTICLE 5. PHARMACISTS, PHARMACY TECHNICIANS, PHARMACY INTERNS
AND PHARMACIES.
§30-5-7. Grounds for suspension or revocation of license or
disciplinary proceedings; penalties and procedures;
temporary suspensions; reporting of disciplinary action.
(a) The board shall have the power to withhold, revoke or
suspend any license or any certificate issued under this article or
to penalize or discipline any pharmacist or pharmacy after giving
reasonable notice and an opportunity to be heard pursuant to the
provisions of section one, article five, chapter twenty-nine-a of
this code, any person who has:
(1) Become unfit or incompetent to practice pharmacy by reason
of: (A) Alcohol or substance abuse; (B) insanity; or (C) any
abnormal physical or mental condition which threatens the safety of
persons to whom such person might sell or dispense prescriptions,
drugs, or devices, or for whom he might manufacture, prepare or
package, or supervise the manufacturing, preparation, or packaging
of prescriptions, drugs or devices;
(2) Been convicted in any of the courts of this state, the
United States of America, or any other state, of a felony or any
crime involving moral turpitude which bears a rational nexus to the
individual's ability to practice as a pharmacist or pharmacist
technician;
(3) Violated any of the provisions of this chapter or chapter
sixteen of this code;
(4) Failed to comply with the rules of professional conduct
adopted by the board pursuant to section two of this article;
(5) Knowledge or suspicion that a pharmacist, pharmacy
technician or pharmacy intern is incapable of engaging in the
practice of pharmacy with reasonable skill, competence and safety
and has failed to report this information to the board;
(6) Committed fraud as a licensee in connection with the
practice of pharmacy;
(7) Performed an act outside this state which would constitute
a violation within this state; or
(8)
Is in breach of a service obligation resulting from the
applicant's or licensee's receipt of state or federal funding for
the applicant's or licensee's pharmacy education; or
(8) (9) Agreed to participate in a legend drug product
conversion program promoted or offered by a manufacturer,
wholesaler or distributor of such product for which the pharmacist
or pharmacy received any form of financial remuneration, or agreed
to participate in a legend drug program in which the pharmacist or
pharmacy is promoted or offered as the exclusive provider of legend
drug products or whereby in any way the public is denied, limited
or influenced in selecting pharmaceutical service or counseling.
(b) Upon a finding of a violation of one or more of the above
grounds for discipline by a pharmacist, intern or pharmacy
technician, the board may impose one or more of the following
penalties:
(1) Suspension of the offender's license or registration for
a term to be determined by the board;
(2) Revocation of the offender's license or registration;
(3) Restriction of the offender's license or registration to
prohibit the offender from performing certain acts or from engaging
in the practice of pharmacy in a particular manner for a term to be
determined by the board;
(4) Imposition of a fine not to exceed one thousand dollars
for each offense;
(5) Refusal to renew the offender's license or registration;
(6) Placement of the offender on probation and supervision by
the board for a period to be determined by the board.
(c) All final decisions of the board shall be subject to
judicial review pursuant to the procedures of article five, chapter
twenty-nine-a of this code.
(d) In the case of a pharmacy or wholesale distributor, the
disciplinary order may be entered as to the corporate owner, if any, as well as to the pharmacist, officer, owner or partner of the
pharmacy or wholesale distributor if it is found that such person
or entity had knowledge of or knowingly participated in one or more
of the violations set forth in this article or of article three,
chapter sixty-a of this code.
(e) Notwithstanding the provisions of section eight, article
one, chapter thirty of this code, if the board determines that the
evidence in its possession indicates that a pharmacist's
continuation in practice or unrestricted practice constitutes an
immediate danger to the public, the board may, on a temporary basis
and without a hearing, take any of the actions provided for in this
section if proceedings for a hearing before the board are initiated
simultaneously with the temporary action and begin within fifteen
days of such action. The board shall render its decision within
five days of the conclusion of a hearing conducted pursuant to the
provisions of this section.
(f) In every disciplinary or licensure case considered by the
board pursuant to this article, whether initiated by the board or
upon complaint or information from any person or organization, the
board shall make a preliminary determination as to whether probable
cause exists to substantiate charges of disqualification due to any reason set forth in this section. If such probable cause is found
to exist, all proceedings on such charges shall be open to the
public, who shall be entitled to all reports, records and
nondeliberative materials introduced at such hearing, including the
record of any final action taken: Provided, That any medical
records pertaining to a person who has not expressly waived his or
her right to the confidentiality of such records shall not be open
to the public.
(g) All disciplinary actions taken by the board shall be
reported to the national board of pharmacy, appropriate federal
agencies and to any other state boards with which the disciplined
licensee may also be registered or licensed.
ARTICLE 7. REGISTERED PROFESSIONAL NURSES.
§30-7-11. Denial, revocation or suspension of license; grounds for
discipline.
The board shall have the power to deny, revoke or suspend any
license to practice registered professional nursing issued or
applied for in accordance with the provisions of this article, or
to otherwise discipline a licensee or applicant upon proof that he
or she:
(a) Is or was guilty of fraud or deceit in procuring or
attempting to procure a license to practice registered professional nursing; or
(b) Has been convicted of a felony; or
(c) Is unfit or incompetent by reason of negligence, habits or
other causes; or
(d) Is habitually intemperate or is addicted to the use of
habit-forming drugs; or
(e) Is mentally incompetent; or
(f) Is guilty of conduct derogatory to the morals or standing
of the profession of registered nursing; or
(g) Is practicing or attempting to practice registered
professional nursing without a license or reregistration; or
(h)
Is in breach of a service obligation resulting from the
applicant's or licensee's receipt of state or federal funding for
the applicant's or licensee's nursing education; or
(h) (i) Has wilfully willfully or repeatedly violated any of
the provisions of this article.
ARTICLE 8. OPTOMETRISTS.
§30-8-8. Refusal to issue, suspension or revocation of
certificate; false and deceptive advertising.
The board may either refuse to issue, or may refuse to renew,
or may suspend or revoke any certificate of registration for any
one, or any combination, of the following causes: Violation of a rule or regulation governing the ethical practice of optometry
promulgated by the board under the authority granted by this
article; conviction of a felony, as shown by a certified copy of
the record of the court wherein such conviction was had; the
obtaining of, or the attempt to obtain, a certificate of
registration, or practice in the profession of optometry, or money,
or any other thing of value, by fraudulent misrepresentation; gross
malpractice; continued practice by a person knowingly having an
infectious disease; alcohol or substance abuse;
the applicant or
licensee is in breach of a service obligation resulting from the
applicant's or licensee's receipt of state or federal funding for
the applicant's or licensee's optometry education;
advertising,
practicing, or attempting to practice under a name other than one's
own; advertising by means of knowingly false or deceptive
statements. All advertising, whether by means of newspapers, or in
any manner, whatsoever, of the following statements, or statements
of similar import, that are "false and deceptive" within the
meaning of this law, shall be prohibited. False and deceptive
advertising shall include, but not be limited to, the following:
(a) Advertising "free examination of eyes," or words of similar
import and meaning; (b) advertising frames or mountings for glasses, contact lenses, or other optical devices which does not
accurately describe the same in all its component parts.
ARTICLE 14. OSTEOPATHIC PHYSICIANS AND SURGEONS.
§30-14-11. Refusal, suspension or revocation of license;
suspension or revocation of certificate of
authorization.
(a) The board may either refuse to issue or may suspend or
revoke any license for any one or more of the following causes:
(1) Conviction of a felony, as shown by a certified copy of
the record of the trial court;
(2) Conviction of a misdemeanor involving moral turpitude;
(3) Violation of any provision of this article regulating the
practice of osteopathic physicians and surgeons;
(4) Fraud, misrepresentation or deceit in procuring or
attempting to procure admission to practice;
(5) Gross malpractice;
(6) Advertising by means of knowingly false or deceptive
statements;
(7) Advertising, practicing or attempting to practice under a
name other than one's own;
(8) The applicant or licensee is in breach of a service
obligation resulting from the applicant's or licensee's receipt of state or federal funding for the applicant's or licensee's
osteopathic medical education; or
(8) (9) Habitual drunkenness, or habitual addiction to the use
of morphine, cocaine or other habit-forming drugs.
(b) The board shall also have the power to suspend or revoke
for cause any certificate of authorization issued by it. It shall
have the power to reinstate any certificate of authorization
suspended or revoked by it.
ARTICLE 14A. ASSISTANTS TO OSTEOPATHIC PHYSICIANS AND SURGEONS.
§30-14A-2. Approval and certification by board of osteopathy.
Approval of a job description and establishment of
qualifications for employment as an assistant to an osteopathic
physician and surgeon must be obtained from the board of
osteopathy. The board of osteopathy shall certify each qualified
applicant for employment as an assistant to an osteopathic
physician and surgeon upon submission of a job description, and
shall provide for biennial renewal of certification. The board
shall have the power to revoke or suspend any certification of an
assistant to an osteopathic physician and surgeon, for cause,
and
including the denial, suspension or revocation of the application
or certification of an assistant to an osteopathic physician who
is in breach of a service obligation resulting from that applicant's or licensee's receipt of state or federal funding for
the applicant's or licensee's osteopathic physician assistant
education,
after having given the person an opportunity to be heard
in the manner provided by sections eight and nine, article one of
this chapter.
ARTICLE 15. NURSE-MIDWIVES.
§30-15-6. Denial, suspension or revocation of licenses.
(a) The board may deny, suspend or revoke a license
application or license for any of the following reasons:
(1) Failure to remain current in annual registration;
(2) Gross negligence in performance of service as provided by
the statement of standards for the practice of nurse-midwifery by
the American college of nurse-midwives; or
(3)
The applicant or licensee is in breach of a service
obligation resulting from the applicant's or licensee's receipt of
state or federal funding for the applicant's or licensee's nursing
or midwifery education; or
(3) (4) The commission of a crime in association with the
practice of nurse-midwifery.
(b) Before any license shall be denied, revoked or suspended,
the accused shall be furnished with a written statement of the
reasons for such suspension or revocation and shall be given reasonable notice of, and be entitled to, a hearing before the
board, in person, or by attorney, according to the provisions of
chapter twenty-nine-a of this code.
ARTICLE 16. CHIROPRACTORS.
§30-16-11. Disciplinary actions.
(a) The board may take disciplinary action against any
licensee or certificate holder holding a license or certificate
issued under this article after giving reasonable notice and an
opportunity to be heard pursuant to the provisions of section one,
article five, chapter twenty-nine-a of this code, when it finds
that any person has engaged in conduct in violation of the rules
adopted by the board, including, but not limited to, the following:
(1) Fraud or misrepresentation in applying for or procuring a
chiropractic license or in connection with applying for or
procuring periodic renewal of a chiropractic license;
(2) Cheating on or attempting to subvert the chiropractic
licensing examination or examinations;
(3) Being found guilty of a crime in any jurisdiction, which
offense is a felony, involves moral turpitude or directly relates
to the practice of chiropractic. Any plea of nolo contendere is a
conviction for the purposes of this subdivision;
(4) Conduct likely to deceive, defraud or harm the public;
(5) Making a false or misleading statement regarding his or
her skill or the efficiency or value of the chiropractic treatment;
(6) Representing to a patient that an incurable condition,
sickness, disease or injury can be cured;
(7) Willfully or negligently violating the confidentiality
between chiropractic physician and patient except as required by
law;
(8) Negligence in the practice of chiropractic as determined
by the board;
(9) Being found mentally incompetent or insane by any court of
competent jurisdiction;
(10) Being physically or mentally unable to engage safely in
the practice of chiropractic;
(11) Practice or other behavior that demonstrates an
incapacity or incompetence to practice chiropractic;
(12) Use of any false, fraudulent or deceptive statement in
any document connected with the practice of chiropractic;
(13) Practicing chiropractic under a false or assumed name;
(14) Aiding or abetting the practice of chiropractic by an
unlicensed, incompetent or impaired person;
(15) Allowing another person or organization to use his or her license to practice chiropractic;
(16) Commission of any act of sexual abuse, sexual misconduct
or sexual exploitation related to the licensee's practice of
chiropractic;
(17) Being addicted or habituated to a drug or intoxicant;
(18) Obtaining any fee by fraud, deceit or misrepresentation;
(19) Employing abusive billing practices;
(20) Directly or indirectly giving or receiving any fee,
commission, rebate or other compensation for professional services
not actually rendered: Provided, That this prohibition does not
preclude the legal functioning of lawful professional partnerships,
corporations or associations;
(21) Disciplinary action of another state or jurisdiction
against a license or other authorization to practice chiropractic
based upon acts or conduct by the licensee similar to acts or
conduct that constitute grounds for action as defined in this
section, a certified copy of the record of the action taken by the
other state or jurisdiction being conclusive evidence thereof;
(22) Failure to report to the board within thirty days of any
adverse action, disciplinary action, sanctions or punishment taken
against him or her by another state licensing board or licensing jurisdiction, United States or foreign, by a peer review body,
health care institution, professional or chiropractic society or
association, governmental agency, law-enforcement agency or court
for acts or conduct similar to acts or conduct that constitute
grounds for action as defined in this section;
(23) Failure to report to the board within thirty days of the
surrender of a license or other authorization to practice
chiropractic in another state or jurisdiction or surrender of
membership on any chiropractic staff or in any chiropractic or
professional association or society while under disciplinary
investigation by any of those authorities or bodies for acts or
conduct similar to acts or conduct that constitute grounds for
action as defined in this section;
(24) Any adverse judgment, award or settlement against the
licensee resulting from a chiropractic liability claim related to
acts or conduct similar to acts or conduct that constitute grounds
for action as defined in this section;
(25) Failure to report to the board within thirty days any
adverse judgment, settlement or award arising from a chiropractic
liability claim related to acts or conduct similar to acts or
conduct that constitute grounds for action as defined in this section;
(26) Failure to transfer or release pertinent and necessary
chiropractic records to another physician in a timely fashion when
legally requested to do so by the subject patient or by a legally
designated representative of the subject patient;
(27) Improper management of chiropractic patient records;
(28) Failure to furnish the board, its investigators or
representatives, information legally requested by the board;
(29) Failure to cooperate with a lawful investigation
conducted by the board; or
(30) The applicant or licensee is in breach of a service
obligation resulting from the applicant's or licensee's receipt of
state or federal funding for the applicant's or licensee's
chiropractic education; or
(30) (31) Violation of any provision of this article or the
rules of the board or of an action, stipulation or agreement with
the board.
(b) Upon a finding of a violation by a chiropractor of one or
more of the grounds for discipline contained in subsection (a) of
this section, the board may impose one or more of the following
penalties:
(1) Revocation of the chiropractic license;
(2) Suspension of the chiropractic license;
(3) Probation;
(4) Stipulations, limitations, restrictions and conditions
relating to practice;
(5) Reprimand;
(6) Monetary redress to another party;
(7) A period of free public or charity service;
(8) Satisfactory completion of an educational, training or
treatment program, or a combination of programs;
(9) Imposition of an administrative penalty, not to exceed one
thousand dollars per day per violation; or
(10) Payment of administrative costs for the disciplinary
action, including, but not limited to, attorney fees, investigation
expenses, hearing examiner fees, witness fees and cost of
monitoring compliance with the board's orders.
(c) The board may issue a confidential letter of concern to a
licensee when, though evidence does not warrant formal proceedings,
the board has noted indications of possible misconduct of a
licensee that could lead to serious consequences and formal action.
In the letter of concern, the board is also authorized at its discretion to request clarifying information from the licensee.
(d) The board may require professional competency, physical,
mental or chemical dependency examinations of any applicant or
licensee including withdrawal and laboratory examination of bodily
fluids.
(e) In every disciplinary case considered by the board
pursuant to this article, whether initiated by the board or upon
complaint or information from any person or organization, the board
shall make a preliminary determination whether probable cause
exists to substantiate charges due to any reasons set forth in this
section. If probable cause is not found in the complaint, all
proceedings relating to the complaint and the response of the
licensee or his or her representative shall be held confidential
and may not be made available to the public or to any other state
or federal agency or court. If probable cause is found to exist,
all proceedings on the charges shall be open to the public, who are
entitled to all reports, records and nondeliberative materials
introduced at the hearing, including the record of any final action
taken: Provided, That any medical records pertaining to the person
who has not waived his or her right to the confidentiality of the
records are not open to the public. For purposes of the hearing, the board has the power to subpoena witnesses, documents or any
other tangible evidence. The board may, in its discretion, meet in
an informal conference with the accused licensee who seeks or
agrees to the conference. Disciplinary action taken against a
licensee as a result of the informal conference and agreed to in
writing by the board and the accused licensee is binding and a
matter of public record. The holding of an informal conference
does not preclude an open formal hearing if the board determines it
is necessary.
(f) If the board determines that the evidence in its
possession indicates that a chiropractor's continuation in practice
or unrestricted practice constitutes an immediate threat to the
public health and safety or when a licensee is convicted of a
felony, whether or not related to the practice of chiropractic, the
board may seek an injunction in the circuit court of proper
jurisdiction for immediate relief implementing any of the board's
authority provided in this article.
(g) All disciplinary actions taken by the board shall be
reported to the federation of licensing boards, appropriate federal
agencies and any other state boards with which the disciplined
licensee may also be registered or licensed and all the actions, including related findings of fact and conclusions of law, are
matters of public record. Voluntary surrender of and voluntary
limitations on a chiropractic license of any person are also
matters of public record and shall also be reported to the
appropriate agencies.
ARTICLE 20. PHYSICAL THERAPISTS.
§30-20-10. Denial, suspension or revocation of license or
temporary permit.
(a) The board may at any time upon its own motion, and shall
upon the written complaint of any person, conduct an investigation
to determine whether there are any grounds for the denial,
suspension or revocation of a license application, license or
temporary permit issued under the provisions of this article.
(b) The board shall have the authority to reprimand, enter
into consent decrees, enter into probation orders, levy fines not
to exceed one thousand dollars per day per violation, assess
administration fees, deny, suspend or revoke the license
application, license or temporary permit of any applicant or
licensee who the board determines has:
(1) Used narcotic drugs, other controlled substances or
alcohol to the extent that it affects his or her professional
competency; or
(2) Been convicted of violating any state or federal law
relating to controlled substances, which conviction remains
unreversed;
(3) Been, in the judgment of the board, guilty of immoral or
unprofessional conduct;
(4) Been convicted of a felony or a crime involving moral
turpitude;
(5) Been declared mentally incompetent by a court of competent
jurisdiction;
(6) Obtained or attempted to obtain a license issued under the
provisions of this article by fraud or willful misrepresentation;
(7) Been grossly negligent in the practice of physical therapy
or in acting as a physical therapy assistant, as the case may be;
(8) Treated or undertaken to treat a human being otherwise
than by physical therapy and as authorized by this article;
(9) Is in breach of a service obligation resulting from the
applicant's or licensee's receipt of state or federal funding for
the applicant's or licensee's physical therapy education;
(9) (10) Failed or refused to comply with the provisions of
this article or any reasonable rule promulgated by the board
hereunder or any order or final decision of the board;
(10) (11) In the case of a physical therapist, employed a
physical therapy assistant who is not a licensed physical therapy
assistant; or employed or utilized a licensed physical therapy
assistant or physical therapy aide without complying with the
provisions of this article or the rules of the board; or
(11) (12) In the case of a physical therapy assistant,
practiced physical therapy other than in accordance with the
definitional requirements of a physical therapy assistant as
specified in subdivision (i), section two of this article.
NOTE: The purpose of this bill is to provide licensure
penalties for health care providers in default on medical education
scholarship and loan service obligations.
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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