sb273 sub1
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 273
(Senators Blatnik and Macnaughtan)
__________
[Originating in the Committee on the Judiciary;
reported February 28, 1996.]
__________
A BILL to amend and reenact sections one, three, four-a, five,
six, seven, eight, ten, eleven, twelve and fifteen,
article one, chapter thirty of the code of West Virginia,
one thousand nine hundred thirty-one, as amended; and to
further amend said article by adding thereto two new
sections, designated sections one-a and seven-a, all
relating to state boards of examination or registration;
application of article; legislative findings and
declaration; registration of officers; bond of secretary;
lay members for professional boards; meetings; quorum;
powers relating to investigations; duties; applications
for licensing; setting of fees; examination of applicants; contents of licenses or certificates; requirements for
continuing education; grounds for denial, suspension or
revocation of license; probation; hearings; disposition of
fees and fines; compensation and expenses of members;
records of proceedings; register of applicants; annual
reports; immunity of members; limitations on liability of
reporting professionals; auditing by legislative auditor;
reporting results of litigation; and penalties.
Be it enacted by the Legislature of West Virginia:
That sections one, three, four-a, five, six, seven, eight,
ten, eleven, twelve and fifteen, article one, chapter thirty of
the code of West Virginia, one thousand nine hundred thirty-
one, as amended, be amended and reenacted; and that said
article be further amended by adding thereto two new sections,
designated sections one-a and seven-a, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS APPLICABLE TO ALL STATE BOARDS
OF EXAMINATION OR REGISTRATION REFERRED TO IN CHAPTER.
§30-1-1. Application of article.
Unless otherwise specifically provided, every board of
examination or registration referred to in this chapter
including the West Virginia boards of health shall conform to the requirements prescribed in the following sections of this
article.
§30-1-1a.
Legislative findings and declaration.
The Legislature hereby finds and declares that as a matter
of public policy, the practice of the professions referred to
in this chapter is a privilege and not a natural right of
individuals. The fundamental purpose of licensure and
registration is to protect the public and any license,
registration, certificate or other authorization to practice
issued pursuant to this statute is a revocable privilege.
§30-1-3. Officers; bond of secretary.
Every such board referred to in this chapter shall elect
annually from its members a president and a secretary who shall
hold their offices for one year and until their successors are
elected: Provided, That the state board of law examiners, the
state board of examiners for nurses and the state board of
dental examiners may each elect a secretary from outside its
membership. The secretary shall execute a surety bond
conditioned as required by law, which bond shall be approved by
the attorney general as to form and by the auditor as to
sufficiency, and, when so approved, shall be filed and recorded in the office of the secretary of state. Such officers shall
register annually with the governor, the secretary of
administration, the legislative auditor and the secretary of
state. The premium on said bond shall be regarded a proper
and necessary expense of the board.
§30-1-4a. Lay members for
health profession professional
boards.
Notwithstanding any provisions of this code to the
contrary, the governor shall appoint at least one lay person to
represent the interests of the public on every health
professional licensing board enumerated in section fifteen of
this article referred to in this chapter. If the total number
of members on any of these boards after the appointment of one
such lay person is an even number, one additional lay person
shall be appointed. Said These lay members shall serve in
addition to any other members otherwise provided for by law or
regulation rules. Such These lay members shall be of the age
of eighteen years or over, of good moral character and
competent to represent and safeguard the interests of the
public. The Each lay member is empowered to participate in and
vote on all transactions and businesses of the board, committee or group to which he or she is appointed.
Any person whose addition to a board as a lay member under
the provisions of this section results in the addition of an
odd number of lay additions to the board shall serve for a term
ending in an odd-numbered year on the date in that year on
which terms of the professional members expire; of such members
first appointed, each shall serve for a term ending on such
date in the year one thousand nine hundred seventy-nine, and
the successor to each such person shall serve for a term equal
in length to the terms of the other professional members of the
board. Any person whose addition to a board as a lay member
under the provisions of this section results in the addition of
an even number of lay additions to the board, shall serve for
a term ending in an even-numbered year on the date in that year
on which terms of the professional members expire; of such
members first appointed, each shall serve for a term ending on
such date in the year one thousand nine hundred seventy-eight,
and the successor to each such person shall serve for a term
equal in length to the terms of the other professional members
of the board.
§30-1-5. Meetings; quorum; powers
to compel attendance of witnesses and to take testimony relating to
investigations; duties.
Every such board referred to in this chapter shall hold at
least two one meetings meeting each year, at such times and
places as it may prescribe by rule, for the examination of
applicants who desire to practice their respective professions
or occupations in this state, and for the transaction of such
other business as may legally come before it. The board may
hold such additional meetings as may be necessary, which shall
be called by the secretary at the direction of the president or
upon the written request of any three members. A majority of
the members of the board shall constitute constitutes a quorum
for the transaction of its business. The board shall have
power is authorized to compel the attendance of witnesses, to
issue subpoenas, to conduct investigations and hire an
investigator and to take testimony and proof concerning any
matter within its jurisdiction, and for such these purposes the
president and secretary of the board shall have the power are
authorized to administer oaths.
Every board referred to in this chapter has a duty to, and
shall in a timely manner, investigate and resolve complaints made to it and shall provide public access to the record of
disposition of complaints made to it in accordance with the
provisions of chapter twenty-nine-b of this code; and every
board has a duty to report, and shall report in a timely manner
upon receiving notice thereof, violations of individual
practice acts contained in this chapter by an individual, to
the board by which the individual may be licensed. Every
person licensed or registered by such board has a duty to
report, and shall report in a timely manner, to the board which
licenses or registers him or her, a known or observed violation
of the practice act or the board's rules by any other person
licensed or registered by the same board. Law-enforcement
agencies or their personnel and courts shall report in a timely
manner to the appropriate board any violations of individual
practice acts by any individual.
Whenever a board referred to in this chapter obtains
information that a person subject to its authority has engaged
in, is engaging in or is about to engage in any act which
constitutes or will constitute a violation of the provisions of
this chapter administered and enforced by that board, it may
make application to the circuit court for an order enjoining the acts and upon a showing that the person has engaged, is
engaging or is about to engage in any such act, an injunction,
restraining order or other order as the court may deem
appropriate shall be entered by the court.
§30-1-6. Application
for license or registration; examination
fee; renewal and single service fees; examination;
reexamination.
Every applicant for license or registration under the
provisions of this chapter shall apply therefor in writing to
the proper board at least ten days before the date of any
examination to be conducted by such board, and shall transmit
with his application an examination fee of twenty dollars,
unless a different fee is specially provided by law, which sum
the board is authorized to charge for an examination or
investigation into such applicant's qualifications to practice.
An applicant failing to pass an examination satisfactory to the
board shall, at either the first or second succeeding
examination conducted by the board, be entitled to a
reexamination without further cost, but one such reexamination
shall exhaust his privilege under this original application and
shall transmit with his or her application an examination fee which the board is authorized to charge for an examination or
investigation into the applicant's qualifications to practice.
Each board referred to in this chapter is authorized to
establish by rule a deadline for application for examination
which shall be no less than ten nor more than ninety days prior
to the date of the examination.
Boards may set by rule fees relating to the licensing or
registering of individuals, which shall be sufficient to enable
the boards to carry out effectively their responsibilities of
licensure or registration and discipline of individuals subject
to their authority: Provided, That when any board proposes to
promulgate a rule regarding fees for licensing or registration,
that board shall notify its membership of the proposed rule by
mailing a copy thereof to the membership at the time that the
proposed rule is filed with the secretary of state for
publication in the state register in accordance with section
five, article three, chapter twenty-nine-a of this code.
§30-1-7. Contents of license or certificate of registration
;
fee.
Every license or certificate of registration issued by
such each board shall bear a serial number, the full name of the applicant, the date of issuance, the seal of the board and
shall be signed by a majority of the members and attested by
its president and secretary or executive secretary. Unless
otherwise specially provided, the board shall charge a fee of
five dollars for every license or certificate or registration
issued by it, and a fee of five dollars for every duplicate
thereof, which fee shall be paid before such license or
certificate of registration, or duplicate, is issued:
Provided, That an applicant for registration as nurse shall be
granted a certificate of registration on passing the
examination of said board, without any charge therefor. No
license or certificate of registration granted or issued under
the provisions of this chapter shall may be assignable
assigned.
§30-1-7a. Continuing education.
Each board referred to in this chapter shall establish
continuing education requirements as a prerequisite to license
renewal. Each board shall develop continuing education
criteria appropriate to its discipline, which shall include,
but not be limited to, course content, course approval, hours
required and reporting periods.
§30-1-8. Denial, suspension or revocation of a license or
registration;
probation; proceedings; effect of suspension
or revocation; transcript; report; judicial review.
(a) Every board referred to in this chapter is authorized
to suspend or revoke the license of any person convicted of a
felony or who has been found to have engaged in conduct,
practices or acts constituting professional negligence or a
willful departure from accepted standards of professional
conduct. Where any person has been so convicted of a felony or
has been found to have engaged in such conduct, practices or
acts, every board referred to in this chapter is further
authorized to enter into consent decrees, to reprimand, to
enter into probation orders; to levy fines not to exceed one
thousand dollars per day per violation; or any of these, singly
or in combination; and further, to assess administrative costs
in addition thereto: Provided, That any costs assessed shall
be placed in the special account of said board and any fine
levied shall be deposited in the state treasury's general
revenue fund. For purposes of this section, the word "felony"
means a felony or crime punishable as a felony under the laws
of this state, the United States or any of them. Every board referred to in this chapter is authorized to promulgate rules
in accordance with the provisions of chapter twenty-nine-a of
this code to delineate conduct, practices or acts which, in the
judgment of the board, constitute professional negligence, a
willful departure from accepted standards of professional
conduct or which may render an individual unqualified or unfit
for licensure, registration or other authorization to practice.
(a) (b) Notwithstanding any other provision of law to the
contrary, no certificate, license, registration or authority
issued under the provisions of this chapter may be suspended or
revoked without a prior hearing before the board or court
issuing said certificate, license, registration or authority:
Provided, That this subsection does not apply in cases where a
board is authorized to suspend or revoke a certificate,
license, registration or authority prior to a hearing if the
individual's continuation in practice constitutes an immediate
danger to the public.
(b)(c) In all proceedings before a board or court for the
suspension or revocation of any certificate, license,
registration or authority issued under the provisions of this
chapter, a statement of the charges against the holder thereof and a notice of the time and place of hearing shall be served
upon the person as a notice is served under section one,
article two, chapter fifty-six of this code, at least thirty
days prior to the hearing and he or she may appear with
witnesses and be heard in person, by counsel, or both. The
board may take such oral or written proof, for or against the
accused, as it may deem advisable. If upon such hearing the
board finds that the charges are true, it may suspend or revoke
the certificate, license, registration or authority, and such
suspension or revocation shall take from the person all rights
and privileges acquired thereby.
Pursuant to the provisions of section one, article five,
chapter twenty-nine-a of this code, informal disposition may
also be made by the board of any contested case by stipulation,
agreed settlement, consent order or default. Further, the board
may suspend its decision and place a licensee found by the
board to be in violation of the applicable practice on
probation.
(c) (d) Any person denied a license, certificate,
registration or authority who believes such the denial was in
violation of this article or the article under which said license, certificate, registration or authority is authorized
shall be entitled to a hearing on the action denying said
license, certificate, registration or authority. Hearings
under this subsection shall be in accordance with the
provisions for hearings set forth in subsection (b) (c) of this
section.
(d)(e) A stenographic report of each proceeding on the
denial, suspension or revocation of a certificate, license,
registration or authority shall be made at the expense of the
board and a transcript thereof retained in its files. The
board shall make a written report of its findings, which shall
constitute part of the record.
(e)(f) All proceedings under the provisions of this
section shall be are subject to review by the supreme court of
appeals.
§30-1-10. Disposition of moneys;
report to auditor;
legislative audit; fines.
The secretary of every such board referred to in this
chapter shall receive and account for all moneys derived by
virtue of the provisions of this chapter applicable to such
board it and shall pay them into a separate special fund of the state treasury monthly, on or before the tenth day of the month
succeeding the month in which such moneys were received. He
shall also, on the first day of January and July in each year,
or within five days thereafter, certify to the state auditor a
detailed statement of all such moneys received by him during
the preceding six months established for each board where the
funds shall be used exclusively by each board for purposes of
administration and enforcement of its statute: Provided, That
when the special fund of any board accumulates in excess of two
times the annual budget of the board or ten thousand dollars,
whichever is greater, the amount in excess shall be transferred
by the state treasurer to the state general revenue fund:
Provided, however, That any fines levied shall be deposited in
the general revenue fund of the state treasury. Every
licensing board whose operators are authorized by the
provisions of this chapter shall be subject to audit by the
office of the legislative auditor.
§30-1-11. Compensation of members; expenses.
Each member of every such board shall receive thirty-five
dollars for each day actually spent in attending the sessions
of the board, or of its committees, and in necessary travel, and shall be reimbursed for all actual and necessary expenses
incurred in carrying out the provisions of this chapter
applicable to such board. The secretary shall receive such
salary as may be prescribed by the board, but in proceedings
relative to the fixing of his salary the secretary shall have
no vote. All authorized compensation and all expenses
certified by the board as properly and necessarily incurred in
the discharge of its duties shall be paid out of the state
treasury, from funds appropriated for that purpose, on warrants
of the state auditor issued on requisitions signed by the
president and secretary of the board. compensation and expense
reimbursement not in excess of the amount paid to members of
the Legislature for their interim duties as recommended by the
citizens legislative compensation commission and authorized by
law for each day or portion thereof engaged in the discharge of
official duties.
§30-1-12. Record of proceedings; register of applicants;
certified copies of records prima facie evidence; report
to governor
and Legislature.
The secretary of every such board shall keep a record of
its proceedings and a register of all applicants for license or registration, showing for each the date of his or her
application, his or her name, age, educational and other
qualifications, place of residence, whether an examination was
required, whether the applicant was rejected or a certificate
of license or registration granted, the date of such this
action, the license or registration number, all renewals of
such license or registration, if required, and any suspension
or revocation thereof. The books and register of the board
shall be open to public inspection at all reasonable times, and
such the books and register, or a copy of any part thereof,
certified by the secretary and attested by the seal of the
board, shall be prima facie evidence of all matters recorded
therein.
On or before the first day of January of each year in
which the Legislature meets in regular session the board shall
submit to the governor and to the Legislature a report of its
transactions for the preceding two years, together with an
itemized statement of its receipts and disbursements, and a
full list of the names of all persons licensed or registered by
it during such that period and statistical reports by county of
practice, by specialty, if appropriate to the particular profession, and a list of any complaints filed regarding those
so licensed or registered and any action taken thereon,
certified by the president and the secretary. A copy of the
report shall be filed with the secretary of state.
§30-1-15. Civil immunity for board members; liability
limitations of professionals reporting to boards;
peer review committees and professional review
committees; reporting results of litigation to
committees; procedure for imposing penalties.
(a) All members of the boards herein are immune
from civil liability while acting within the scope of their
duties as board members.
(b) Any member of a professional group or
organization, who is subject to the provisions of this chapter,
including, but not limited to, doctors of medicine, doctors of
chiropractic, doctors of veterinary medicine, osteopathic
physicians and surgeons, doctors of dentistry, pharmacists,
attorneys-at-law, real estate brokers, architects, professional
engineers, certified public accountants, public accountants,
registered nurses or licensed practical nurses who, pursuant to
the provisions of this chapter, or pursuant to any rule promulgated by the applicable governing board for that
profession, or pursuant to the rules or bylaws of any peer
review organization, reports or otherwise provides evidence of
the professional negligence, impairment or incompetence of
another member of his or her profession to the governing board
for the profession or to any peer review organization or
committee, is not liable to any person for making such a
report: Provided, That the report is made without actual
malice and in the reasonable belief that the report is
warranted by the facts known to him or her at the time.
(c) If a claim or cause of action is asserted against a
member of any profession included within the provisions of this
chapter, whether an individual or an entity, as a result of the
filing of a report by that member pursuant to the provisions of
this chapter, or the rules of the applicable governing board
for that profession, or pursuant to the rules or bylaws of any
peer review organization or committee, and the claim or cause
of action is subsequently dismissed, settled or adjudicated in
favor of the person or entity making the required report, the
person or persons who initiated the claim or action is liable
for all attorney's fees, costs and expenses incurred by the reporting professional or entity only if the circuit court
finds that the action was brought with malice or in violation
of rule eleven of the West Virginia rules of civil procedure.
(d) Within thirty days of the dismissal, settlement,
adjudication or other termination of any claim or cause of
action asserted against any professional or entity reporting
under the provisions of this chapter, the person or persons
filing the claim or cause of action shall submit to the
applicable governing board the following information:
(1) The parties involved;
(2) The court in which the action was filed, if
applicable;
(3) The basis and nature of the claim or cause of action;
and
(4) The result or disposition of the claim or cause of
action.
(e) The governing boards of each profession subject to the
provisions of this chapter shall promulgate legislative rules
pursuant to the provisions of chapter twenty-nine-a of this
code, establishing procedures for imposing sanctions and
penalties against any member of the profession who fails to submit to the board the information required by this section.
(f) The provisions of this section do not preclude the
application of any protection of immunity which may be
otherwise set forth under any article in this chapter.
Sections one-a and seven-a are new; therefore,
strike-throughs and underscoring have been omitted.
Section fifteen has been rewritten; therefore, strike-
throughs and underscoring have been omitted.