Senate Bill No. 37
(By Senator Wooton)
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[Introduced January 12, 2000; referred to the Committee
on Health and Human Resources.]
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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 the
practice of telemedicine across state lines, including the
rendering of a medical opinion by a physician located
outside the state concerning diagnosis or treatment of a
patient within this state, which opinion has a direct effect
on the patient's care and treatment; requiring a medical
license in this state therefor; and providing for criminal
penalties.
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, 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 person engaged in the
practice of telemedicine is considered to be engaged in the
practice of medicine within this state and is subject to the
licensure requirements of this article. As used in this section,
the "practice of telemedicine" means the use of electronic
information and communication technologies to provide health care
when distance separates participants and includes one or both of
the following: (1) The rendering of a medical opinion concerning
diagnosis or treatment of a patient within this state by a
physician located outside this state, which opinion has a direct effect on the patient's care and treatment, as a result of the
transmission of individual patient data, specimens or other
material by electronic or other means from within this state to
the physician or his or her agent; or (2) the rendering of
treatment to a patient within this state by a physician located
outside 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 the physician 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 and are acting
within the scope of their license;
(2) Physicians or podiatrists licensed in other states or
foreign countries who are acting in a consulting capacity with
physicians or podiatrists duly licensed in this state, for a
period of not more than three months: Provided, That this
exemption is applicable on a one-time only basis;
(3) An individual physician or podiatrist, or physician or
podiatrist, or physician or podiatrist groups, or physicians or
podiatrists at a tertiary care or university hospital outside
this state and engaged in the practice of telemedicine who
consult or render second opinions concerning diagnosis or
treatment of patients within this state: (i) In an emergency or
without compensation or expectation of compensation; or (ii) on
an irregular or infrequent basis which occurs less than once a
month or less than twelve times in a calendar year;
(4) Persons holding licenses granted by another state or
foreign country 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;
(5) Any person providing first-aid care in emergency
situations;
(6) 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;
(7) Visiting medical faculty 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;
(8) Persons enrolled in a school of medicine approved by the
liaison committee on medical education or by the board, or
persons 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 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;
(9) The fitting, recommending or sale of corrective shoes,
arch supports or similar mechanical appliances in commercial
establishments; and
(10) 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.
(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: This bill requires a physician located outside the
state who renders a medical opinion concerning diagnosis or
treatment of a patient within this state, which opinion has a
direct effect on the patient's care and treatment, to be licensed
to practice medicine in West Virginia.
Strike-throughs indicate language which would be stricken
from the present law, and underscoring indicates new language
that would be added.