COMMITTEE SUBSTITUTE
FOR
H. B. 4058
(By Mr. Speaker, Mr. Kiss, and Delegates Douglas,
Staton, Ashley and Trump)
(Originating in the Committee on the Judiciary)
[February 13, 1998]
A BILL to amend chapter thirty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article three-a, relating to
limiting disciplinary actions against certain health
professionals prescribing, administering or dispensing
controlled substances in the management of intractable pain.
Be it enacted by the Legislature of West Virginia:
That chapter thirty of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended by adding thereto
a new article, designated article three-a, all to read as follows:
ARTICLE 3A. MANAGEMENT OF INTRACTABLE PAIN.
§30-3A-1. Definitions.
For the purposes of this article, the words or terms defined
in this section have the meanings ascribed to them. These
definitions are applicable unless a different meaning clearly appears from the context.
(1) An "accepted guideline" is a care or practice guideline
for pain management developed by a nationally recognized clinical
or professional association, or a specialty society or government- sponsored agency that has developed practice or care guidelines
based on original research or on review of existing research and
expert opinion. Guidelines established primarily for purposes of
coverage, payment or reimbursement do not qualify as accepted
practice or care guidelines when offered to limit treatment options
otherwise covered by the provisions of this article.
(2) "Board" or "licensing board" means the West Virginia
board of medicine, the West Virginia board of osteopathy, the West
Virginia board of registered nurses or the West Virginia board of
pharmacy.
(3) "Intractable pain" means a state of pain having a cause
that cannot be removed. Intractable pain exists if an effective
relief or cure of the cause of the pain (1) is not possible, or (2)
has not been found after reasonable efforts. Intractable pain may
be temporary or chronic.
(4) "Nurse" means a registered nurse licensed in the state of
West Virginia pursuant to the provisions of article seven of this
chapter.
(5) "Pain-relieving controlled substance" includes but is not
limited to an opioid or other drug classified as a schedule II controlled substance and recognized as effective for pain relief,
and excludes any drug that has no accepted medical use in the
United States or lacks accepted safety for use in treatment under
medical supervision, including but not limited to any drug
classified as a schedule I controlled substance.
(6) "Pharmacist" means a registered pharmacist licensed in the
state of West Virginia pursuant to the provisions of article five
of this chapter.
(7) "Physician" means a physician licensed in the state of
West Virginia pursuant to the provisions of article three or
article fourteen of this chapter.
§30-3A-2. Limitation on disciplinary sanctions or criminal
punishment related to management of intractable pain.
(a) A physician shall not be subject to disciplinary sanctions
by a licensing board or criminal punishment by the state for
prescribing, administering or dispensing pain-relieving controlled
substances, even in excess of average dosages, for the purpose of
alleviating or controlling intractable pain, if the physician can
demonstrate by reference to an accepted guideline that his or her
practice substantially complied with that guideline. Evidence of
substantial compliance with an accepted guideline may be rebutted
only by the testimony of a clinical expert. Evidence of
noncompliance with an accepted guideline is not sufficient alone to
support disciplinary or criminal action.
(b) A registered nurse shall not be subject to disciplinary
sanctions by a licensing board or criminal punishment by the state
for administering pain-relieving controlled substances to alleviate
or control intractable pain, if administered in accordance with the
orders of a licensed physician.
(c) A registered pharmacist shall not be subject to
disciplinary sanctions by a licensing board or criminal punishment
by the state for dispensing a prescription for a pain-relieving
controlled substance to alleviate or control intractable pain, if
dispensed in accordance with the orders of a licensed physician:
Provided, That the prescription legend must contain the statement
"Diagnosis: Intractable pain".
(d) For purposes of this section, the term "disciplinary
sanctions" includes both remedial and punitive sanctions imposed on
a licensee by a licensing board, arising from either formal or
informal proceedings.
(e) The provisions of this section shall apply to the
treatment of all patients for intractable pain, regardless of the
patient's prior or current chemical dependency or addiction. The
board may develop and issue policies or guidelines establishing
standards and procedures for the application of this article to the
care and treatment of persons who are chemically dependent or
addicted.
§30-3A-3. Acts subject to discipline or prosecution.
(a) Nothing in this article shall prohibit disciplinary
action or criminal prosecution of a physician for:
(1) Failing to maintain complete, accurate, and current
records documenting the physical examination and medical history of
the patient, the basis for the clinical diagnosis of the patient,
and the treatment plan for the patient;
(2) Writing a false or fictitious prescription for a
controlled substance scheduled in article two, chapter sixty-a of
this code; or
(3) Prescribing, administering, or dispensing a controlled
substance in violation of the provisions of the federal
Comprehensive Drug Abuse Prevention and Control Act of 1970, 21
U.S.C. §§801, et seq. or chapter sixty-a of this code; or
(4) Diverting controlled substances prescribed for a patient
to the physician's own personal use.
(b) Nothing in this article shall prohibit disciplinary
action or criminal prosecution of a nurse or pharmacist for:
(1) Administering or dispensing a controlled substance in
violation of the provisions of the federal Comprehensive Drug Abuse
Prevention and Control Act of 1970, 21 U.S.C. §§801, et seq. or
chapter sixty-a of this code; or
(2) Diverting controlled substances prescribed for a patient
to the nurse's or pharmacist's own personal use.
§30-3A-4. Construction of article.
This article may not be construed to legalize, condone,
authorize or approve mercy killing or assisted suicide.
NOTE: The purpose of this bill is to limit disciplinary
actions against certain health professionals prescribing,
administering or dispensing controlled substances in the management
of intractable pain.
This article is new; therefore, strike-throughs and
underscoring have been omitted.