Senate Bill No. 385
(By Senators Walker, Scott, Kessler, Bowman, Minear, Anderson
and Bailey)
____________
[Introduced February 3, 1998; referred to
the Committee on Government Organization.]
____________
A BILL to amend and reenact section thirteen, article three,
chapter thirty of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to specifying
that the practice of medicine across state lines where a
physician or podiatrist is located outside the state and the
patient is located within this state requires a license
except in emergencies or in infrequent or irregular
situations or when done without compensation or expectation
of compensation on an informal basis; and clarifying that
the three-month exemption for licensure in certain cases for
physicians or podiatrists who physically enter the state may
be utilized once only.
Be it enacted by the Legislature of West Virginia:
That section thirteen, article three, chapter thirty of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-13. Unauthorized practice of medicine and surgery or
podiatry; criminal penalties; limitations.
(a) A person shall not engage in the practice of medicine
and surgery or podiatry in this state, hold himself or herself
out as qualified to practice medicine and surgery or podiatry or
use any title, word or abbreviation to indicate to or induce
others to believe that he or she is licensed to practice medicine
and surgery or podiatry in this state unless he or she is
actually licensed under the provisions of this article. A
physician or podiatrist is deemed to be engaged in the practice
of medicine and surgery or podiatry in this state when a
physician or podiatrist who is located outside this state renders
a written or otherwise documented medical opinion concerning
diagnosis or treatment of a patient within this state as a result
of transmission of individual patient data, specimens or other
material, by electronic or other means from within this state to
such physician or podiatrist or his or her agent. A physician or
podiatrist is deemed to be engaged in the practice of medicine
and surgery or podiatry in this state when a physician or podiatrist located outside this state renders treatment to a
patient within this state as a result of transmission of
individual patient data by electronic or other means from within
this state to such physician or podiatrist or his or her agent.
No person may practice as a physician's assistant, hold
himself or herself out as qualified to practice as a physician's
assistant, or use any title, word or abbreviation to indicate to
or induce others to believe that he or she is licensed to
practice as a physician's assistant in this state unless he or
she is actually licensed under the provisions of this article.
Any person who violates the provisions of this subsection is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than ten thousand dollars, or imprisoned in the
county jail not more than twelve months, or both fined and
imprisoned.
(b) The provisions of this section do not apply to:
(1) Persons who are duly licensed health care providers
under other pertinent provisions of this code who are physically
located within this state and are acting within the scope of
their license;
(2) Physicians or podiatrists licensed in other states or
foreign countries who physically enter this state who are acting
in a consulting capacity or who render care and treatment to a patient, with physicians or podiatrists duly licensed in this
state, or who render a medical or podiatric opinion, for a period
of not more than three months: Provided, That this exemption is
applicable on a one-time only basis;
(3) Persons holding licenses granted by another state or
foreign country who are physically located inside this state who
are commissioned medical officers of, a member of or employed by
the armed forces of the United States, the United States public
health service, the veterans' administration of the United
States, any federal institution or any other federal agency while
engaged in the performance of their official duties;
(4) Any person providing first-aid care in emergency
situations;
(5) The practice of the religious tenets of any recognized
church in the administration of assistance to the sick or
suffering by mental or spiritual means;
(6) Visiting medical faculty who physically enter this
state, engaged in teaching or research duties at a medical school
or institution recognized by the board and who are in this state
for periods of not more than six months: Provided, That the
individuals do not otherwise engage in the practice of medicine
or podiatry outside of the auspices of their sponsoring
institutions;
(7) Persons physically located inside this state enrolled in
a school of medicine approved by the liaison committee on medical
education or by the board, or persons physically located inside
this state enrolled in a school of podiatric medicine approved by
the council of podiatry education or by the board, or persons
enrolled in an undergraduate or graduate physician assistant
program approved by the committee on allied health education and
accreditation or its successor on behalf of the American Medical
Association or by the board, or persons physically located inside
this state engaged in graduate medical training in a program
approved by the liaison committee on graduate medical education
or the board, or engaged in graduate podiatric training in a
program approved by the council on podiatric medical education or
by the board, who are performing functions in the course of
training including with respect to functions performed by medical
residents or medical students under the supervision of a licensed
physician, ordering and obtaining laboratory tests, medications
and other patient orders by computer or other electronic means
and no other provision of this code to the contrary may be
construed to prohibit or limit medical residents' or medical
students' use of computers or other electronic devices in this
manner;
(8) The fitting, recommending or sale of corrective shoes, arch supports or similar mechanical appliances in commercial
establishments; and
(9) The fitting or sale of a prosthetic or orthotic device
not involving any surgical procedure, in accord with a
prescription of a physician, osteopathic physician, or where
chiropractors or podiatrists are authorized by law to prescribe
such a prosthetic or orthotic device, in accord with a
prescription of a chiropractor or podiatrist, by a practitioner
or registered technician certified by the American Board for
Certification of Orthotics and Prosthetics in either prosthetics
or orthotics: Provided, That the sale of any prosthetic or
orthotic device by a partnership, proprietorship or corporation
which employs such a practitioner or registered technician who
fitted the prosthetic or orthotic device shall not constitute the
unauthorized practice of medicine: Provided, however, That the
practitioner or registered technician may, without a
prescription, make recommendation solely to a physician or
osteopathic physician or to a chiropractor or podiatrist
otherwise authorized by law to prescribe a particular prosthetic
or orthotic device, regarding any prosthetic or orthotic device
to be used for a patient upon a request for such recommendation;
and,
(10) Any physician or podiatrist located outside this state who engages in the practice of medicine and surgery or podiatry
on a person within this state (a) in an emergency or (b) on an
informal basis without compensation or without expectation of
compensation or (c) on an irregular or infrequent basis which
occurs less than once a month or involves less than ten patients
on an annual basis or comprises less than one percent of the
physician's or podiatrist's diagnostic or therapeutic practice.
(c) This section shall not be construed as being in any way
a limitation upon the services of a physician's assistant
performed in accordance with the provisions of this article.
(d) Persons covered under this article may be permitted to
utilize electronic signature or unique electronic identification
to effectively sign materials, transmitted by computer or other
electronic means, upon which signature is required for the
purpose of authorized medical practice. Such signatures are
deemed legal and valid for purposes related to the provision of
medical services. This subsection does not confer any new
practice privilege or right on any persons covered under this
article.
NOTE: The purpose of this bill is to require, with some
exceptions, physicians and podiatrists to have a West Virginia
license before engaging in extensive practice within this state.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates language that would be added.