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.