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Introduced Version House Bill 4303 History

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Key: Green = existing Code. Red = new code to be enacted
H. B. 4303


(By Delegates Morgan, Martin, Argento, Higgins,
Reynolds, Craig, Swartzmiller, Palumbo and Stephens )
[Introduced January 28, 2008; referred to the
Committee on Government Organization then Judiciary.]



A BILL to amend and reenact §30-36-18 and §30-36-19, of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto three new sections, designated §30-36-21, §30-36-22 and §30-36-23, all relating to the board of acupuncture; clarifying disciplinary causes and actions; providing for complaint investigations, hearings and injunctions; and providing civil and criminal penalties.

Be it enacted by the Legislature of West Virginia:
That §30-36-18 and §30-36-19, of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto three new sections, designated §30-36-21, §30-36-22 and §30-36-23, all to read as follows:
ARTICLE 36. ACUPUNCTURISTS.
§30-36-18. Reprimands, probations, suspensions and revocations; grounds. Causes for denial, probation, limitation, discipline, suspension or revocation of licenses of acupuncturists.
(a)The board, on the affirmative vote of a majority of its full authorized membership, may reprimand any licensee, place any licensee on probation, or suspend or revoke a license if the licensee: may refuse to issue, refuse to renew, suspend, revoke or limit any license or practice privilege and may take disciplinary action against a licensee who, after notice and a hearing, has been adjuged by the board as unqualified for any of the following reasons:
(a)(1) Fraudulently or deceptively obtains or attempts to obtain a license for the applicant or licensee or for another; Fraud, misrepresentation or deceit in obtaining or maintaining a license.
(b)(2) Fraudulently or deceptively:
(1) Uses a license; or
(2) Solicits or advertises. Failure by any licensee to maintain compliance with the requirements for the issuance or renewal of a license.
(c) (3) Is guilty of immoral or unprofessional conduct in the practice of acupuncture; Dishonesty, fraud, professional negligence in the performance of acupuncture, or a willful departure from the accepted standards of practice and professional conduct;
(d) (4) Is professionally, physically or mentally incompetent; Violation of any provision of this article or any rule promulgated hereunder;
(e) (5) Provides professional services while:
(1) Under the influence of alcohol; or
(2) Using any narcotic or controlled substance, as defined in section one hundred one, article one, chapter sixty-a of this code, or other drug that is in excess of therapeutic amounts or without a valid medical indication; Violation of any professional standard or rule of professional conduct;
(f) (6) Knowingly violates any provision of this article or any rule of the board adopted under this article; Failure to comply with the provisions of this article or any rule promulgated hereunder;
(g) (7) Is convicted of or pleads guilty or nolo contendere to a felony or to a crime involving moral turpitude, whether or not any appeal or other proceeding is pending to have the conviction or plea set aside; Failure to comply with any order of final decision of the board;
(h) (8) Practices acupuncture with an unauthorized person or assists an unauthorized person in the practice of acupuncture; Failure to respond to a request or action of the board;
(i) (9) Is disciplined by the licensing or disciplinary authority of any other state or country or convicted or disciplined by a court of any state or country for an act that would be grounds for disciplinary action under this section; Conviction of a crime involving moral turpitude;
(j) (10) Willfully makes or files a false report or record in the practice of acupuncture; Conviction or a felony or a crime involving dishonesty or fraud or any similar crime under the laws of the United States, this state or another jurisdiction, if the underlying act or omission involved would have constituted a crime under the laws of this state;
(k) (11) Willfully fails to file or record any report as required by law, willfully impedes or obstructs the filing or recording of the report, or induces another to fail to file or record the report; Knowingly using any false or deceptive statements in advertising;
(l) (12) Submits a false statement to collect a fee; or Conduct adversely affecting the licensee's fitness to perform acupuncture; or
(m) (13) Refuses, withholds from, denies or discriminates against an individual with regard to the provision of professional services for which the person is licensed and qualified to render because the individual is HIV positive, in conformity with standards established for treatment by physicians, dentists and other licensed health care professionals in cases of this nature.
Conduct set forth by legislative rule as a cause for denial, probation, limitation, discipline, suspension or revocation or licenses of acupuncturists.
(b) The board shall suspend or revoke any license if it finds the existence of any grounds which would justify the denial of an application for such license if application were then being made for it.
(c) Disciplinary action may include, but is not limited to, a reprimand, censure, probation, administrative fines, and mandatory attendance at continuing education seminars or other training as ordered by the board.
§30-36-19. Due process procedure.
(a) Upon filing with the board a written complaint charging a person with being guilty of any of the acts described in section sixteen of this article, the administrative secretary or other authorized employee of the board shall provide a copy of the complaint or list of allegations to the person about whom the complaint was filed. That person will have twenty days thereafter to file a written response to the complaint. The board shall thereafter, if the allegations warrant, make an investigation. If the board finds reasonable grounds for the complaint, a time and place for a hearing shall be set, notice of which shall be served on the licensee or applicant at least fifteen calendar days in advance of the hearing date. The notice shall be by personal service or by certified or registered mail sent to the last known address of the person. The board may, on its own motion, conduct an investigation to determine whether there are any grounds for disciplinary action against a licensee. The board shall, upon the written complaint of any person, conduct an investigation to determine whether there are any grounds for disciplinary action against a licensee. For the purposes of an investigation, a member of the board or the executive director of the board may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation.
(b) The board may petition the circuit court for the county within which the hearing is being held to issue subpoenas for the attendance of witnesses and the production of necessary evidence in any hearing before it. Upon request of the respondent or of his or her counsel, the board shall petition the court to issue subpoenas in behalf of the respondent. The circuit court upon petition may issue such subpoenas as it deems necessary.
Upon receipt of a written complaint filed against any licensee, the board shall provide a copy of the complaint to the licensee.
(c) Unless otherwise provided in this article, hearing procedures shall be promulgated in accordance with, and a person who feels aggrieved by a decision of the board may take an appeal pursuant to, the administrative procedures in this state as provided in chapter twenty-nine-a of this code.
If the board finds, upon investigation, that probable cause exists that the licensee has violated any provision of this article or the rules promulgated hereunder, then the board shall serve the licensee with a written statement of charges and a notice specifying the date, time and place of the hearing. The hearing shall be held in accordance with the provisions of this article.
§30-36-21. Hearing and judicial review.
(a) Any person adversely affected by an order entered by the board is entitled to a hearing. A hearing on a statement of the charges shall be held in accordance with the provisions for hearings set forth in article one of this chapter and the procedures specified by the board by rule.
(b) Either party may elect to have an administrative law judge or hearing examiner conduct the hearing and must notify the other party of the election. The administrative law judge or hearing examiner, at the conclusion of a hearing, shall prepare a proposed order which contains findings of fact and conclusions of law. Disciplinary action may be a part of the proposed order, or the board may reserve this obligation for its consideration. The board may accept, reject or modify the decision of the administrative law judge or hearing examiner.
(c) For the purpose of conducting a hearing, a member of the board or the executive director of the board may issue subpoenas and subpoenas duces tecum which shall be issued, served, and enforced as specified in section one, article five, chapter twenty-nine-a of this code.
(d) If, after a hearing, the board determines the licensee has violated any provision of this article, or the board's rules, a formal decision shall be prepared and signed by a member of the board or the executive director of the board, which contains findings of fact, conclusions of law and specifically states the disciplinary actions imposed.
(e) Any licensee adversely affected by any decision of the board entered after a hearing may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance with article five, chapter twenty-nine-a of this code.
§
30-36-22. Injunctions.
(a) When, by reason of an investigation under this article or otherwise, the board or any other interested person believes that a person has violated or is about to violate any provision of this article, any rule promulgated hereunder, any order of the board or any final decision of the board, the board or any other interested person may apply to any court of competent jurisdiction for an injunction against such person enjoining such person from the violation. Upon a showing that the person has engaged in or is about to engage in any prohibited act or practice, an injunction, restraining order or other appropriate order may be granted by the court without bond.
(b) A cause of action by the board may be brought in the circuit court of Kanawha County or in the circuit court of the county where the cause of action took place.
§
30-36-23. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a person has knowingly violated the provisions of this article, the board may bring its information to the attention of the Attorney General or other appropriate law-enforcement officer who may cause criminal proceedings to be brought.
(b) If a court of law finds that a person knowingly violated any provision of this article, any rule promulgated hereunder, any order of the board or any final decision of the board, then the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars and no more than one thousand dollars for each violation, imprisoned for up to six months for each violation, or both fined and imprisoned.



NOTE: The purpose of this bill is to clarify disciplinary cases, investigations, hearings, injunctions and penalties for the board of Acupuncture.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

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