Senate Bill No. 180
(By Senator Wooton)
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[Introduced February 19, 2001; referred to the Committee
on the Judiciary.]
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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 making the
unauthorized practice of medicine and surgery or podiatry, or
as a physician assistant, a felony rather than a misdemeanor.
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 or as a physician assistant; 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 term
"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 diagnosis of a patient within this state by a physician
located outside this state 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 felony and, upon conviction
thereof, shall be fined not more than ten thousand dollars, or
imprisoned in the county or regional jail not less than six nor
more than twelve months, or both fined not more than ten thousand
dollars 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 certified in the provision of custom
orthotic and prosthetic devices, respectively, by a nationally
recognized credentialing body for orthotics and prosthetics that is
accredited by the national commission for certifying agencies
(NCCA): 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:
The purpose of this bill is to increase the penalty for
the unauthorized practice of medicine and surgery or as physician
assistant from a misdemeanor to a felony.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would
be added.