Senate Bill No. 425
(By Senators Stollings and Edgell)
[Introduced January 23, 2014; referred to the Committee on Health and Human Resources; and then to the Committee on Government Organization.]
A BILL to amend and reenact §30-3-16 and §30-3-16a of the Code of West Virginia, 1931, as amended, all relating to the licensure, supervision and regulation of physician assistants by the West Virginia Board of Medicine; defining term; providing for rule-making authority; setting forth licensing requirements; providing for a temporary license; providing for a practice agreement; setting out practice agreement requirements; setting forth requirements for a supervising physician; setting forth requirements for an alternate supervisory physician; providing for prescriptive authority for physician assistants; setting limits on the number of full-time physician assistants which may be supervised by a single supervisory physician; providing for emergency practice provisions; and providing for a summer camp license.
Be it enacted by the Legislature of West Virginia:
That §30-3-16 and §30-3-16a of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-16. Physician assistants; definitions; Board of Medicine rules; annual report; licensure; temporary license; license renewal; practice agreement 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) “Advance duties” means medical acts that require additional training beyond the basic education program training required for licensure as a physician assistant.
(2) “Alternate supervising physician” means one or more physicians licensed by the board and designated by the supervising physician to provide supervision of a physician assistant in accordance with a practice agreement authorized by the board.
(3) "Approved program" means an educational program for physician assistants approved and accredited by the Accreditation Review Commission on Education for the Physician Assistant or its successor. Prior to 2001, approval and accreditation would have been by either the Committee on Allied Health Education and Accreditation or the Accreditation Review Commission on Education for the Physician Assistant.
(4) “Board” means the West Virginia Board of Medicine.
(5) “Chronic condition” is a condition which lasts three months or more, generally cannot be prevented by vaccines, can be controlled but not cured by medication and does not generally disappear. These conditions include, but are not limited to, arthritis, asthma, cardiovascular disease, cancer, diabetes, epilepsy and seizures and obesity.
(6) "Health care facility" means any licensed hospital, nursing home, extended care facility, state health or mental institution, clinic or physician's office.
(7) “Hospital” means a facility licensed pursuant to article five-b of chapter sixteen of this code and any acute care facility operated by the state government that primarily provides inpatient diagnostic, treatment or rehabilitative services to injured, disabled or sick persons under the supervision of physicians and includes psychiatric hospitals.
(8) "Physician assistant" means a health care professional who meets the qualifications set forth in this article and is licensed pursuant to this article to practice medicine with physician supervision.
(9) “Practice Agreement” means a document that is executed between a supervision physician and a physician assistant and is filed with and approved by the board. Practice agreements include, but are not limited to: a description of the qualifications of the supervising physician and physician assistant, a description of the settings in which the physician will practice, a description of the continuous physician supervision mechanisms that are reasonable and appropriate for the practice setting and the experience and training of the physician assistant, a description of the delegated medical acts that are within the supervision physicians’s scope of practice, an attestation that all medical acts to be delegated to the physician assistant are within the scope of the supervising physician’s scope of practice and are appropriate to the physician assistant’s education, training and level of competence and other attestations as set forth by the board by rules promulgated pursuant to subsection (b) of this section.
(10) "Supervising physician" means a doctor of medicine or podiatry permanently and fully licensed by the board without restriction or limitation who supervises physician assistants.
(11) “Supervision” means overseeing the activities of, and accepting responsibility for, the medical services rendered by a physician assistant. Constant physical presence of the supervising physician is not required as long as the supervising physician and physician assistant are, or can be, easily in contact with one another by telecommunication. Supervision 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 the same premises as the supervising physician.
(b) The board shall promulgate rules, including emergency rules, pursuant to article three, chapter twenty-nine-a of this code to ensure conformity with this section, 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 with the supervision and control of a physician or podiatrist permanently licensed by the board. In promulgating the rules, the board shall allow the physician assistant to perform those procedures and examinations submitted to it in the practice agreement required by this section. Physician assistants may pronounce death in accordance with the rules. The board shall compile and publish an annual report that includes a list of currently licensed physician assistants and their supervising physician(s) and location(s) in the state.
(c) The board shall issue a license to practice as a physician assistant under the supervision of a physician or podiatrist licensed by the board to any person who:
(1) Files a complete application;
(2) Pays the necessary fee as set by the board;
(3) Demonstrates to the board’s satisfaction that he or she:
(A) Obtained a baccalaureate or master’s degree from an accredited program of instruction for physician assistants; or
(B) Prior to July 1, 1994, graduated from an approved program of instruction in primary health care or surgery; or
(C) Prior to July 1, 1983, was certified by the board as a physician assistant then classified as “Type B”.
(4) Has passed the Physician Assistant National Certifying Examination administered by the National Commission on Certification of Physician Assistants and has maintained a current certification by that commission;
(5) Is mentally and physically able to engage safely in practice as a physician assistant;
(6) Has no physician assistant licensure, certification or registration in any jurisdiction currently suspended or revoked;
(7) Has no professional licensure, certification or registration in any jurisdiction under current discipline, or is subject to any limitation or restriction unless the board is aware of the discipline, limitation or restriction and agrees to licensure;
(8) Is of good moral character; and
(9) Submits to the board any further information the board deems necessary to evaluate the applicant’s qualifications.
(d) The board may grant a temporary license to an individual applying for licensure under this section if the individual meets all of the qualifications for licensure but is awaiting the next scheduled meeting of the board for action upon his or her application.
(e) If a physician assistant fails a recertification examination of the National Commission on Certification of Physician Assistants and is no longer certified, the physician assistant shall:
(1) Immediately notify his or her supervising physician or physicians and the board in writing; and
(2) Immediately cease practicing.
The license shall terminate automatically and the physician assistant is not eligible for reinstatement until he or she has obtained a passing score on the examination.
(f) The board may deny an application for license as a physician assistant in this state and may, after providing the licensee an opportunity for hearing, discipline a physician assistant licensed by the board who has been adjudged by the board as unqualified due to any of the reasons set forth in this article or in legislative rules regarding physician assistant licensure and discipline promulgated by the board.
(g) All hearings and processes related to physician assistant licensure and discipline shall be in accord with the processes and procedures set forth in section fourteen of this article.
(h) The board may impose and discipline, restrictions and limitations, or both, upon the license of any physician assistant which it is authorized to impose upon physicians and podiatrists. (I) A physician assistant may not practice independent of a supervising physician. Before a supervising physician may delegate medical acts to a licensed physician assistant, and before a physician assistant may practice as a physician assistant, the supervising physician and the physician assistant must file a completed practice agreement with the board in the form and manner prescribed by the board with the necessary fee. The fee shall be established by rule of the board. Once approved, the board shall issue written authorization for the physician assistant to commence practicing as a physician assistant pursuant to the practice agreement. Alternate supervising physician(s) shall be designated as part of the practice agreement.
(j) A 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 practice agreement are consistent with the skills and training of the supervising physician and the physician assistant. Activities shall be delegated to physician assistants in a manner consistent with sound medical practice and the protection of the health and safety of the patient and consistent with the practice agreement filed with the board.
(k) The board may decline to authorize a physician assistant to commence practicing pursuant to a practice agreement filed with the board if it determines that the practice agreement fails to meet the requirements established by the board. In its consideration of any practice agreement which proposes the delegation of advanced duties, the board may request additional information from the supervising physician and the physician assistant, or both, to evaluate the delegation of the advanced duties. The board may decline to authorize an advanced duty incorporated into a practice agreement if it determines that the physician assistant is unable to perform the proposed delegated duties safely.
(l) Practice agreements which include advanced duties which are to be performed in a hospital shall be approved if accompanied by certification that:
(1) A physician, with credentials that have been reviewed by the hospital or ambulatory surgical facility as a condition of employment as an independent contractor or as a member of the medical staff, supervises the physician assistant;
(2) The physician assistant has credentials that have been reviewed by the hospital or ambulatory surgical facility as a condition of employment as an independent contractor or as a member of the medical staff; and
(3) Each advanced duty to be delegated to the physician assistant is reviewed and approved within a process approved by the governing body of the health care facility before the physician assistant performs the advanced duties.
(m) If the board declines to approve a practice agreement or any proposed delegated act incorporated therein, the board shall provide the supervising physician and the physician assistant with written notice of the disapproval. A physician assistant who receives notice that the board has disapproved a practice agreement or an advanced duty under the practice agreement may not practice under the agreement or perform the disapproved function.
(n) A physician licensed by the West Virginia Board of Medicine may supervise a physician assistant:
(1) As a supervising physician in accordance with a practice agreement authorized by the board;
(2) As an alternate supervising physician if:
(A) The alternate supervising physician supervises in accordance with the practice agreement authorized by the board;
(B) The alternate supervising physician has been designated as such in the practice agreement authorized by the board; and
(C) The alternate supervisor only delegates those medical acts that have been authorized by the practice agreement and are within the scope of practice of both the primary supervising physician and the alternate supervising physician.
(o) 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. The legal responsibility for any physician assistant remains with the supervising physician at all times including occasions when the physician assistant under his or her direction and supervision aids in the care and treatment of a patient in a health care facility. A supervising physician must designate an alternate supervising physician, if the supervising physician is to be absent, but 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 employed by or on behalf of the facility. Credentialed medical facility staff and attending physicians of a hospital who provide direction to or utilize physician assistants employed by or on behalf of the hospital are considered alternate supervising physicians as defined in subdivision (a) (2) of this section.
(p) 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 after the commencement and 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.
(q) When functioning as a physician assistant, the physician assistant shall wear a name tag that identifies him or her as a physician assistant. Identification shall be furnished by the board upon licensure of the physician assistant. Physician assistants licensed by this article shall keep their license and current practice agreement(s) available for inspection at their primary place of practice. A physician assistant shall notify the board in writing of any termination of the practice agreement under which the physician assistant is authorized to practice within ten days of the termination. Failure of a physician assistant to provide written notification to the board that an approved practice agreement has terminated with the ten day time frame constitutes unprofessional conduct and disciplinary proceedings may be instituted.
(r) 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 his or her supervising physician. The rules shall include, but not be limited to, the following:
(1) A list of drugs and pharmacologic categories, or both, the prescription of which may not be delegated to a physician assistant, including all drugs listed in Schedules I and II of the Uniform Controlled Substances Act, antineoplastic and chemotherapeutic agents, or both, used in the active treatment of current cancer, radiopharmaceuticals, general anesthetics, radiographic contrast materials and any other limitation or exclusions of specific drugs or categories of drugs as determined by the board;
(2) Authority to include, in a practice agreement, the delegation of prescribing authority for up to a seventy-two hour supply of drugs listed under Schedule III of the Uniform Controlled Substances Act so long as the prescription is nonrefillable and an annual supply of any drug, with the exception of controlled substances, which is prescribed for the treatment of a chronic condition, other than chronic pain management with the chronic condition being treated identified on the prescription; and
(3) A description of the education and training required for a physician assistant to be eligible to receive delegated prescriptive writing authority as part of a practice agreement.
(s) A supervising physician may delegate prescribing, dispensing and administering of controlled substances, prescription drugs or medical devices if the practice agreement includes:
(1) A notice of intent to delegate prescribing of controlled substances, prescription drugs or medical devices;
(2) An attestation that all prescribing activities of the physician assistant will comply with applicable federal and state law governing the practice of physician assistants;
(3) An attestation that all medical charts or records will contain a notation of any prescriptions written by a physician assistant in accordance with this section;
(4) An attestation that all prescriptions written under this section will include the physician assistant’s name and the supervising physician’s name, business address and business telephone number legibly written or printed; and
(5) An attestation that the physician assistant has successfully completed each of the requirements established by the board to be eligible to prescribe pursuant to a practice agreement accompanied by the production of any required documentation establishing eligibility.
(t) A supervising physician may enter into practice agreements with up to five full-time physician assistants at any one time. A physician is prohibited from providing supervision to greater than five physician assistants at any one time, whether the supervision is undertaken as a supervising physician or as an alternate supervisor. However, a physician practicing medicine in an emergency department of a hospital or a physician who supervises a physician assistant who is employed by or on behalf of a hospital, may provide supervision for up to five physician assistants per shift if the physician has an authorized practice agreement in place with the supervised physician assistant(s) or the physician has been properly registered as an alternate supervising physician for each physician assistant.
(u) A license issued to a physician assistant by the board shall authorize the physician assistant to perform medical acts:
(1) Delegated to the physician assistant as part of an authorized practice agreement;
(2) Appropriate to the education, training and experience of the physician assistant;
(3) Customary to the practice of the supervising physician; and
(4) Consistent with the rules governing physician assistant practice promulgated by the board.
(v) The provisions of this section do not authorize a 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. Nothing in this section limits the right of an individual to practice a health occupation that the individual is authorized to practice under this chapter.
(w) Each application for licensure, temporary licensure and renewal of a license and each practice agreement submitted to the board shall be accompanied by the appropriate fee as set by the board.
(x) As a condition of renewal of physician assistant license, which shall occur on a biennial basis on a schedule established by the board, each physician assistant shall provide:
(1) Proof that the physician assistant is currently certified and has been continuously certified during the preceding licensure period by the National Commission on Certification of Physician Assistants;
(2) An attestation that all continuing education requirements established by the board for the reporting period have been met;
(3) A complete renewal application with supporting documentation, including and required documentation of participation in and successful completion of continuing education; and
(4) Payment of the appropriate fee.
(y) Notwithstanding any provision of this chapter to the contrary, failure to timely submit a completed application, the required documentation and the fee, or both, required for license renewal shall result in the automatic expiration of any license as a physician assistant.
(z) If a license is automatically expired and reinstatement is sought within one year of the automatic expiration, the former licensee shall provide:
(1) Proof that the physician assistant is currently certified, and has been continuously certified during the preceding licensure period, by the National Commission on Certification of Physician Assistants;
(2) An attestation that all continuing education requirements established by the board for the reporting period have been met;
(3) A complete reinstatement application with supporting documentation, including and required documentation of participation in and successful completion of continuing education; and
(4) Payment of a renewal fee plus a reinstatement fee equal to fifty percent of the renewal fee.
(aa) If a license is automatically expired and more than one year has passed since the automatic expiration, the former licensee shall apply for a new license.
(bb) It is unlawful for any physician assistant to represent to any person that he or she is a physician, surgeon or podiatrist. A person who violates the provisions of this subsection is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one nor more than two years, or be fined not more than $2,000, or both fined and imprisoned.
§30-3-16a. Special volunteer physician assistant license; civil immunity for voluntary services rendered to indigents.
(a) There is established a special volunteer physician assistant license for physician assistants retired or retiring from the active practice of medicine who wish to donate their expertise for the medical care and treatment of indigent and needy patients in the clinic setting of clinics organized, in whole or in part, for the delivery of health care services without charge. The special volunteer physician assistant license shall be issued by the West Virginia Board of Medicine to physician assistants licensed or otherwise eligible for licensure under this article and the legislative rules promulgated hereunder without the payment of an application fee, license fee or renewal fee, and the initial license shall be issued for the remainder of the licensing period, and renewed consistent with the boards other licensing requirements. The board shall develop application forms for the special license provided in this subsection which shall contain the physician assistant’s acknowledgment that:
(1) The physician assistant’s practice under the special volunteer physician assistant license will be exclusively devoted to providing medical care to needy and indigent persons in West Virginia;
(2) The physician assistant will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation, for any medical services rendered under the special volunteer physician assistant license;
(3) The physician assistant will supply any supporting documentation that the board may reasonably require; and
(4) The physician assistant agrees to continue to participate in continuing education as required by the board for the special volunteer physician assistant license.
(b) Any physician assistant who renders any medical service to indigent and needy patients of a clinic organized, in whole or in part, for the delivery of health care services without charge under a special volunteer physician assistant license authorized under subsection (a) of this section without payment or compensation or the expectation or promise of payment or compensation, is immune from liability for any civil action arising out of any act or omission resulting from the rendering of the medical service at the clinic unless the act or omission was the result of the physician assistant’s gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there must be a written agreement between the physician assistant and the clinic pursuant to which the physician assistant will provide voluntary uncompensated medical services under the control of the clinic to patients of the clinic before the rendering of any services by the physician assistant at the clinic: Provided, That any clinic entering into such a written agreement is required to maintain liability coverage of not less than $1 million per occurrence.
(c) Notwithstanding the provisions of subsection (b) of this section, a clinic organized, in whole or in part, for the delivery of health care services without charge is not relieved from imputed liability for the negligent acts of a physician assistant rendering voluntary medical services at or for the clinic under a special volunteer physician assistant license authorized under subsection (a) of this section.
(d) For purposes of this section, “otherwise eligible for licensure” means the satisfaction of all the requirements for licensure as listed in section sixteen of this article and in the legislative rules promulgated thereunder, except the fee requirements of subsection (n) of that section and of the legislative rules promulgated by the board relating to fees.
(e) Nothing in this section may be construed as requiring the board to issue a special volunteer physician assistant license to any physician assistant whose license is or has been subject to any disciplinary action or to any physician assistant who has surrendered a physician assistant license or caused such the license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her license, or who has elected to place a physician assistant license in inactive status in lieu of having a complaint initiated or other action taken against his or her license, or who has been denied a physician assistant license.
(f) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any physician assistant covered under the provisions of this article, shall be read so as to contain a provision or endorsement whereby the company issuing such the policy waives or agrees not to assert as a defense on behalf of the policyholder or any beneficiary thereof, to any claim covered by the terms of such the policy within the policy limits, the immunity from liability of the insured by reason of the care and treatment of needy and indigent patients by a physician assistant who holds a special volunteer physician assistant license.
(g) A physician assistant, licensed in this state or licensed or authorized to practice in any other jurisdiction of the United States or who is credentialed as a physician assistant by a federal employer who is responding to a need for medical care created by an emergency or a state or local disaster (not to be defined as an emergency situation which occurs in the place of one’s employment), may render such care that the physician assistant is able to provide without supervision as it is defined in this section, or with such supervision as is available.
(1) Any physician who supervises a physician assistant providing medical care in response to an emergency or state or local disaster is not required to meet the requirements set forth in this section for a supervising physician.
(2) A physician assistant, licensed in this state or licensed or authorized to practice in other states of the United States who voluntarily and gratuitously renders emergency medical assistance other than in the ordinary course of employment or practice, is not liable for civil damages or any personal injuries which result from acts or omissions by those persons in rendering emergency care when the physician assistant is acting in good faith and within his or her education, training and experience. The immunity granted by this section does not apply to acts or omissions constituting gross, willful or wanton negligence or when the medical assistance is rendered at any hospital, physician’s office or other health care delivery entity where those services are normally rendered.
(3) A physician who supervises a physician assistant voluntarily and gratuitously providing emergency care as described in this subsection, is not liable for civil damages for any personal injuries which result from acts or omissions by the physician assistant rendering emergency care.
(h) The board may grant a physician assistant, currently licensed by the board who holds a license with no current discipline, limitations or restrictions on any professional license restrictions, and who has submitted a timely application on a form prescribed by the board, a summer camp or volunteer endorsement to provide services at a children’s summer camp or volunteer services for a public or community event. The board may grant no more than one summer camp endorsement annually to licensees of the board. Any summer camp or volunteer endorsement shall last for no more than one specifically designated three week period annually. An application fee may not be assessed for the endorsement for a licensee of the board if the physician assistant is volunteering his or her services to the camp without compensation or remuneration.
(I) The board may also grant a limited summer camp license to any physician assistant, currently licensed or authorized to practice in any other state, who has no current discipline, limitations or restrictions on any professional license in any jurisdiction, and who has submitted a timely application along with documentation of current NCPPA certification, authorizing the physician assistant to provide services at a children’s summer camp for no more than one specifically designated three-week period annually.
(j) To be eligible for a summer camp license or a summer camp or volunteer endorsement, the physician assistant must apply in a timely fashion and on a form prescribed by the board, and attest that:
(1) The organizers of the summer camp and public or community event have arranged for a supervising physician to be available as needed to the physician assistant;
(2) The physician assistant will limit his or her scope of practice to medical acts which are within his or her education, training and experience; and
(3) The physician assistant will not prescribe any controlled substances or legend drugs as part of his or her physician assistant practice at the summer camp or public or community event.
NOTE: The purpose of this bill is to modernize the licensure and regulation of physician assistants by the West Virginia Board of Medicine. It permits physician assistant to obtain licensure prior to finding employment, prohibits physician assistants from practicing without an approved practice agreement on file with the board and authorizes physician assistants to practice in emergency situations and under volunteer licenses/endorsements. The bill does not modify in any way the established scope of practice for physician assistants.
Strike-throughs indicate language that would be stricken from the present law and underscoring indicates new language that would be added.
Section 30-3-16 has been completely rewritten; therefore, strike-throughs and underscoring have been omitted.