H. B. 4335
(By Delegate Hunt)
[Introduced February 11, 1998; referred to the
Committee on Government Organization then Finance.]
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 thirty-eight,
relating to clinical exercise physiologists; providing for
the licensing and regulating of clinical exercise
physiologists by the West Virginia board of exercise
physiologists; defining terms; creating board and providing
for powers and duties; providing qualifications for
licensure and license renewal; providing for the licensing
of current practitioners; requiring and providing for the
examination for licensure; specifying fees; allowing for
license denial, revocation and suspension, and disciplinary
actions; specifying prohibition; providing criminal
violation and penalty; specifying exemptions; and allowing injunctive relief.
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 thirty-eight,
to read as follows:
ARTICLE 38. CLINICAL EXERCISE PHYSIOLOGISTS.
§30-38-1. Short title.
This article may be cited as "West Virginia Clinical
Exercise Physiologist Licensing Act."
§30-38-2. Definitions.
As used in this article the following terms have the
meanings ascribed to them unless the context clearly indicates
otherwise:
(a) "Board" means the West Virginia board of exercise
physiologists.
(b) "Licensed clinical exercise physiologist" means a person
with approval and collaboration of a licensed physician who
formulates, develops and implements exercise protocols and
programs; administers functional and diagnostic exercise tests;
applies exercise principles to groups such as geriatric,
pediatric, and obstetric populations, and to the general public
in preventive activities; and provides counseling and education regarding such exercise programs and tests to individuals for
whom such services are necessary. Individuals for whom such
services are necessary may include, but are not limited to, those
with cardiovascular, pulmonary, metabolic, immunologic,
inflammatory, orthopedic and neuromuscular diseases and
conditions. This list of qualifying diseases and conditions may
be modified by the board as indication and procedures of
applications are further developed and matured.
(c) "Exercise protocols and programs" means the intensity,
duration, frequency and mode of activity to improve the patient's
functional ability.
(d) "Licensed physician" means a person who is licensed by
the West Virginia state board of medical examiners to practice
medicine in this state or is licensed to practice medicine in
another state.
§30-38-3. Board created; number and appointment of members;
eligibility; terms; filling vacancies; limitations
on number of terms; duties and powers of the board.
(a) There is hereby created the West Virginia board of
exercise physiologists. The board is appointed by the governor
with the advice and consent of the Senate and is composed of five
members; two to serve until the thirtieth day of June, one thousand nine hundred ninety-nine; two to serve until the
thirtieth day of June, two thousand; one to serve until the
thirtieth day of June, two thousand one. At least three board
members shall be exercise physiologists, each of which shall have
been engaged in practice as an exercise physiologist for at least
five years prior to appointment. As the terms of office,
respectively, of the board members expire by limitation, the
governor shall appoint to fill the vacancy a qualified person
whose term is for five years from the day on which the term of
his or her immediate predecessor expired. All interim vacancies
occurring on the board shall be filled for the unexpired term by
the governor.
(b) No person is eligible to serve on the board for or
during more than two successive terms.
(c) The governor may remove any member of the board for
misconduct, incapacity or neglect of duty. The governor is the
sole judge of the sufficiency of the cause of removal. The
governor shall report every such removal promptly to the
Legislature if it is in session; otherwise at the beginning of
the next session thereof.
(d) The board shall:
(1) Establish qualifications for practicing clinical
exercise physiology.
(2) Approve, withhold, deny or restrict each application,
as appropriate; and issue a license to any qualified applicant.
(3) Establish guidelines and procedures for revocation,
suspension, and renewal of licenses. Upon notice and for cause,
the board may revoke or suspend any license.
(4) Renew the license of any licensee in good standing.
(5) Maintain a record of its proceedings regarding the
regulation and licensing of clinical exercise physiologists in a
file maintained solely for that purpose.
(6) Maintain a roster of all licensed clinical exercise
physiologists. The board shall annually prepare a roster of
names and addresses of all current licensees. A copy of the
roster shall be made available to any person requesting it upon
payment of a fee established by the board as sufficient to cover
the cost of the roster.
(7) Adopt a code of professional ethics and examination
procedures and propose rules for legislative approval in
accordance with the provisions of article three, chapter twenty- nine-a of this code, as it may consider necessary to implement
this article in accordance with the state administrative
procedure act in chapter twenty-nine-a of this code.
(8) Establish and publish minimum standards of practice of
clinical exercise physiology in accordance with those developed and accepted by the profession.
(9) Take appropriate administrative actions to regulate the
practice of clinical exercise physiology.
§30-38-4. License required.
Within ninety days of the confirmation of the members of the
board by the Senate, no person may practice clinical exercise
physiology or in any way represent himself or herself as a
licensed clinical exercise physiologist unless he or she is
licensed to do so pursuant to the provisions of this article or
is exempt therefrom.
§30-38-5. Qualifications for licensure; renewal.
(a) The board shall issue a license to each applicant who
files an application upon a form and in such manner as the board
prescribes, accompanied by the fee as set by the board, and who
furnishes satisfactory evidence to the board that he or she:
(1) Is at least twenty-one years of age;
(2) Is of good moral character;
(3) Is not in violation of this article and the legislative
rules promulgated hereunder;
(4) Has a minimum of a graduate degree in an exercise
science curriculum from an accredited school approved by the
board, and has successfully completed an internship of three
hundred hours in exercise physiology under supervision of a licensed clinical exercise physiologist;
(5) Has passed an examination to the satisfaction of the
board; and
(6) Has completed certain course work as required by the
board.
(b) The board shall license and renew annually the license
to practice clinical exercise physiology for any person who
presents satisfactory evidence of qualifications as specified in
this section and under the legislative rules governing clinical
exercise physiology.
(c) No license may be denied any applicant based upon the
applicant's race, religion, creed, national origin, sex or
physical impairment.
(d) Licenses shall be renewed annually for members in good
standing according to procedures adopted by the board.
(e) The board may require continuing education course work
as a condition of license renewal.
§30-38-6. Licensing of current practitioners.
(a) Any person currently practicing as a clinical exercise
physiologist for a period of twelve consecutive months prior to
the effective date of this article shall be licensed as a
clinical exercise physiologist upon application and payment of
the applicable licensing fee if he or she meets the qualifications established by the board and the following
criteria:
(1) Is at least twenty-one years of age;
(2) Is of good moral character;
(3) Is not in violation of this article and the legislative
rules promulgated hereunder; and
(4) Has a minimum of a bachelors degree in an exercise
studies curriculum from an accredited school and meets any two of
the following criteria:
(A) Has one year experience as an exercise physiologist in
a clinical setting, after receiving degree;
(B) Is certified as an exercise specialist by the American
college of sports medicine;
(C) Is recommended by two licensed physicians, one of whom
is board certified; or
(D) Has successfully completed an exercise physiology
internship of two hundred hours in a clinical setting.
(b) After a period of one year from the effective date of
this article no person may be licensed under the provisions of
this section.
§30-38-7. Examination.
(a) The board shall select examinations prepared by
established associations representing clinical exercise physiologist disciplines. The board shall prepare and publish a
listing of acceptable examinations annually.
(b) The examination shall test the applicant's knowledge of
subjects the board considers useful in determining the
applicant's fitness to practice clinical exercise physiology.
(c) An applicant shall successfully pass an examination to
the satisfaction of the board to be eligible for licensure as a
clinical exercise physiologist. Any applicant who fails an
examination and is as a result denied licensure may retake the
examination upon application and payment of an additional
examination fee.
§30-38-8. Fees.
(a) The board shall collect the following fees:
(1) Application fee -- $75.00;
(2) Renewal fee -- $25.00;
(3) Reissuance for lost or destroyed license -- $25.00.
(b) In addition to the fees provided in subsection (a) of
this section, the applicant shall pass an examination as
determined by the board, and the applicant shall incur the cost
of the examination.
(c) Each applicant who applies for the renewal of a license
after his or her license has expired shall pay a late fee of
twenty-five dollars for each late application.
(d) The fees established in this section are not refundable
except under such conditions as the board may establish.
§30-38-9. Denial, revocation or suspension of licenses.
(a) As provided in this article the board may withhold,
suspend, restrict, revoke or refuse to issue or renew any license
issued or applied for. The board may otherwise discipline a
licensed clinical exercise physiologist after notice and
opportunity for hearing pursuant to the administrative procedures
act in chapter twenty-nine-a of this code, upon proof that the
applicant or licensed clinical exercise physiologist:
(1) Has been convicted in a court of competent jurisdiction
of a felony or any offense involving moral turpitude, the record
of conviction being conclusive evidence thereof;
(2) Has violated the code of professional ethics of licensed
clinical exercise physiologists adopted by the board;
(3) Has used any narcotic or alcoholic beverage to an extent
or in a manner that is dangerous to any other person or to an
extent that the use impairs his or her ability to perform the
work of a licensed clinical exercise physiologist;
(4) Has impersonated another person holding a clinical
exercise physiologist license or allowed another person to use
his or her license;
(5) Has used fraud or deception in applying for a license;
(6) Has allowed his or her name or license issued under this
article to be used in connection with any person who performs
clinical exercise physiology services outside of the scope of his
or her training, experience or competence;
(7) Is legally adjudicated mentally incompetent, the record
of the adjudication being conclusive evidence thereof; or
(8) Has willfully or negligently violated any provision of
this article.
(b) Notice of license denial, revocation or suspension or
disciplinary action shall be sent to the applicant or licensee by
registered or certified mail or served personally on the
applicant or licensee. The notice shall state the particular
reasons for the proposed action and shall set a date at which
time the applicant or licensee will be given the opportunity for
a prompt and fair hearing. The written notice shall be sent to
the person's last known address, but the nonappearance of the
person may not prevent such a hearing. For the purpose of the
hearing, the board may subpoena on its own behalf persons, books
and papers of the applicant or licensee. The applicant or
licensee may appear by counsel or personally in his or her own
behalf.
(c) On the basis of any hearing or upon failure to appear of
the applicant or licensee, the board shall make a determination specifying its findings of fact and conclusion of law. A copy of
the determination shall be sent by registered or certified mail
or served personally upon the applicant or licensee. The
decision of the board denying, revoking or suspending the license
shall become final thirty days after being mailed or served
unless within such period the applicant or licensee appeals the
decision as provided by the administrative procedures act in
chapter twenty-nine-a of this code. No appeal while pending
appropriate court action may supersede denial, revocation or
suspension. All proceedings and evidence presented at hearings
before the board are admissible during appellate proceedings.
(d) Every order and judgment of the board shall take effect
immediately on its promulgation unless the board in the order or
judgment sets a probationary period for the applicant or
licensee. The order and judgment shall continue in effect until
expiration of any specified time period or termination by a court
of competent jurisdiction. The board shall notify all licensees
of any action taken against a licensee and may make public its
orders and judgments in such manner and form as it considers
proper.
§30-38-10. Violation; penalty.
(a) After the effective date of this article no person may
assume or use the title or designation "licensed clinical exercise physiologist" unless he or she has in his or her
possession a valid license issued by the board under the
authority of this article.
(b) Any person who violates the provisions of this article
is guilty of a misdemeanor, and upon conviction thereof, shall be
fined not more than five hundred dollars.
§30-38-11. Injunction; penalty; attorney's fees; costs.
(a) The board may initiate an action in any competent court
requesting an injunction to enjoin any person from practicing as
a clinical exercise physiologist as defined in section two of
this article until the person becomes licensed under the
provisions of this article. Such an injunction is not subject
to release upon bond.
(b) If it is proven in court that the defendant has violated
the provisions of this article, the court shall enter an order
enjoining the defendant from such actions.
(c) In case of violation of any injunction issued under the
provisions of this section, the court may summarily charge the
offender with contempt of court.
(d) The injunctive proceedings are in addition to, and not
in lieu of, all other penalties and remedies provided for in this
article.
(e) In the action for an injunction, the board may demand of the defendant a penalty of not more than five hundred dollars and
attorney's fees not to exceed one hundred dollars, in addition to
the costs of court. A judgment for penalty, attorney's fees and
costs may be rendered in the same judgment in which the
injunction is made absolute.
(f) The proceedings for injunction shall be summary and by
the judge without a jury.
§30-38-12. Exemptions.
The following persons and their activities are exempt from
the licensing requirements of this article:
(a) Any person directly supervised by a licensed physician
whose primary duty it is to provide graded exercise testing
within the confines of the physician's office. Neither person
may represent himself or herself to the public as a licensed
clinical exercise physiologist;
(b) Any student in an accredited educational institution
performing functions as part of the prescribed course of study
under the supervision of a licensed clinical exercise
physiologist. A student may only represent himself or herself as
an unlicensed student of the profession in which he or she is
being trained;
(c) Any person employed as a clinical exercise physiologist
by any federal or state agency when the person's activities constitute duties for which he or she is employed and are
performed solely within the confines of the employing agency; (d) Any natural person licensed as a health care provider
under any other provision of law while acting within the scope of
that licensure.
§30-38-13. Prohibition.
Nothing in this article allows a licensed clinical exercise
physiologist to practice physical therapy as defined in section
two, article twenty, chapter thirty of this code, or to represent
himself or herself as a physical therapist or a physical
therapist assistant.
NOTE: The purpose of this bill is to require licensing of
clinical exercise physiologists.
This article is new; therefore, strike-throughs and
underscoring have been omitted.