Senate Bill No. 395
(By Senators Prezioso, Jenkins, Hunter and Foster)
____________
[Introduced January 31, 2007; referred to the Committee on Health
and Human Resources.]
____________
A BILL to amend and reenact §30-3A-1 and §30-3A-2 of the Code of
West Virginia, 1931, as amended, all relating to the
management of pain by physicians; eliminating the definition
of "intractable pain" and defining the word "pain"; and making
conforming amendments to the Pain Management Act.
Be it enacted by the Legislature of West Virginia:
That §30-3A-1 and §30-3A-2 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 3A. MANAGEMENT OF PAIN ACT.
§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. An accepted guideline also includes
policy or position statements relating to pain management issued by
any West Virginia board included in chapter thirty of this code
with jurisdiction over various health care practitioners.
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) (3) "Nurse" means a registered nurse licensed in the State
of West Virginia pursuant to the provisions of article seven of
this chapter.
(4) "Pain" means an unpleasant sensory or emotional experience associated with actual or potential tissue damage or described in
terms of such damage.
(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 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 for the purpose of alleviating or controlling
intractable pain when:
(1) In a case of intractable pain involving a dying patient,
in practicing in accordance with an accepted guideline as defined
in section one of this article, the physician discharges his or her professional obligation to relieve the dying patient's intractable
pain and promote the dignity and autonomy of the dying patient;
even though the dosage exceeds the average dosage of a
pain-relieving controlled substance;
or
(2) In the case of intractable pain involving a patient who is
not dying, the physician discharges his or her professional
obligation to relieve the patient's intractable pain even though
the dosage exceeds the average dosage of a pain-relieving
controlled substance, if the physician can demonstrate by reference
to an accepted guideline that his or her practice substantially
complied with that accepted 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.
(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.
_______
(NOTE: The purpose of this bill is to substitute the
definition of pain with the definition currently in use by the
Board of Medicine and the Board of Osteopathy that is verbatim of
the definition adopted by the Federation of State Medical Boards in
model policy. The bill also makes conforming statutory changes
suggested by the National Pain and Policies Study Group.
Strike-throughs indicate language to be stricken from current
law and underscoring indicates language to be added.)
_______
HEALTH AND HUMAN RESOURCES COMMITTEE AMENDMENT
On page three, section one, line one, by striking out the word
"or" and inserting in lieu thereof the word "and".