ENROLLED
COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 618
(Senator Foster, original sponsor)
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[Passed March 11, 2010; in effect ninety days from passage.]
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AN ACT to amend and reenact §30-14A-1, §30-14A-2, §30-14A-3,
§30-14A-4 and §30-14A-5 of the Code of West Virginia, 1931, as
amended, all relating to osteopathic physician assistants;
updating definitions; clarifying use of the term "license" in
lieu of "certificate"; modifying the authorization to
prescribe drugs; modifying the classes of pharmaceuticals that
may be prescribed by an osteopathic physician assistant;
changing the amount of certain drugs that may be prescribed;
and authorizing fees to be set by legislative rule.
Be it enacted by the Legislature of West Virginia:
That §30-14A-1, §30-14A-2, §30-14A-3, §30-14A-4 and §30-14A-5
of the Code of West Virginia, 1931, as amended, be amended and
reenacted, all to read as follows:
ARTICLE 14A. ASSISTANTS TO OSTEOPATHIC PHYSICIANS AND SURGEONS.
§30-14A-1. Osteopathic physician assistant to osteopathic
physicians and surgeons; definitions; board of
osteopathy rules; licensure; temporary licensure;
renewal of license; job description required;
revocation or suspension of license;
responsibilities of the supervising physician;
legal responsibility for osteopathic physician
assistants; reporting of disciplinary procedures;
identification; limitation on employment and
duties; fees; unlawful use of the title of
"osteopathic physician assistant"; unlawful
representation of an osteopathic physician
assistant as a physician; criminal penalties.
(a) As used in this section:
(1) "Approved program" means an educational program for
osteopathic physician assistants approved and accredited by the
Committee on Allied Health Education and Accreditation or its
successor.
(2) "Board" means the Board of Osteopathy established under
the provisions of article fourteen, chapter thirty of this code.
(3) "Direct supervision" means the presence of the supervising
physician at the site where the osteopathic physician assistant
performs medical duties.
(4) "Health care facility" means any licensed hospital, nursing home, extended care facility, state health or mental
institution, clinic or physician's office.
(5) "License" means a certificate issued to an osteopathic
physician assistant who has passed the examination for a primary
care or surgery physician assistant administered by the National
Board of Medical Examiners on behalf of the National Commission on
Certification of Physician Assistants. All osteopathic physician
assistants holding valid certificates issued by the board prior to
March 31, 2010, shall be considered to be licensed under the
provisions of this article:
Provided, That a person holding a
certificate issued prior to March 31, 2010, must renew the license
pursuant to the provisions of this article.
(6) "Osteopathic physician assistant" means an assistant to an
osteopathic physician who is a graduate of an approved program of
instruction in primary care or surgery, has passed the national
certification examination and is qualified to perform direct
patient care services under the supervision of an osteopathic
physician.
(7) "Supervising physician" means a doctor of osteopathy
permanently licensed in this state who assumes legal and
supervising responsibility for the work or training of any
osteopathic physician assistant under his or her supervision.
(b) The board shall propose emergency and legislative rules
for legislative approval pursuant to the provisions of article
three, chapter twenty-nine-a of this code, governing the extent to which osteopathic physician assistants may function in this state.
The rules shall provide that:
(1) The osteopathic physician assistant is limited to the
performance of those services for which he or she is trained;
(2) The osteopathic physician assistant performs only under
the supervision and control of an osteopathic physician permanently
licensed in this state, but such supervision and control does not
require the personal presence of the supervising physician at the
place or places where services are rendered if the osteopathic
physician assistant's normal place of employment is on the premises
of the supervising physician. The supervising physician may send
the osteopathic physician assistant off the premises to perform
duties under his or her direction, but a separate place of work for
the osteopathic physician assistant may not be established; and
(3) The board may allow the osteopathic physician assistant to
perform those procedures and examinations and in the case of
authorized osteopathic physician assistants to prescribe at the
direction of his or her supervising physician in accordance with
subsections (p) and (q) of this section those categories of drugs
submitted to it in the job description required by subsection (f)
of this section.
(c) The board shall compile and publish an annual report that
includes a list of currently licensed osteopathic physician
assistants and their employers and location in the state.
(d) The board shall license as an osteopathic physician
assistant any person who files an application together with a
proposed job description and furnishes satisfactory evidence that
he or she has met the following standards:
(1) Is a graduate of an approved program of instruction in
primary health care or surgery;
(2) Has passed the examination for a primary care or surgery
physician assistant administered by the National Board of Medical
Examiners on behalf of the National Commission on Certification of
Physician Assistants; and
(3) Is of good moral character.
(e) When any graduate of an approved program submits an
application to the board, accompanied by a job description in
conformity with this section, for an osteopathic physician
assistant license, the board may issue to the applicant a temporary
license allowing the applicant to function as an osteopathic
physician assistant for the period of one year. The temporary
license may be renewed for one additional year upon the request of
the supervising physician. An osteopathic physician assistant who
has not been certified as such by the National Board of Medical
Examiners on behalf of the National Commission on Certification of
Physician Assistants will be restricted to work under the direct
supervision of the supervising physician.
(f) Any osteopathic physician applying to the board to
supervise an osteopathic physician assistant shall provide a job description that sets forth the range of medical services to be
provided by the assistant. Before an osteopathic physician
assistant can be employed or otherwise use his or her skills, the
supervising physician must obtain approval of the job description
from the board. The board may revoke or suspend any license of an
assistant to a physician for cause, after giving such person an
opportunity to be heard in the manner provided by sections eight
and nine, article one of this chapter.
(g) The supervising physician is responsible for observing,
directing and evaluating the work records and practices of each
osteopathic physician assistant performing under his or her
supervision. He or she shall notify the board in writing of any
termination of his or her supervisory relationship with an
osteopathic physician assistant within ten days of his or her
termination. The legal responsibility for any osteopathic
physician assistant remains with the supervising physician at all
times, including occasions when the assistant, under his or her
direction and supervision, aids in the care and treatment of a
patient in a health care facility. In his or her absence, a
supervising physician must designate an alternate supervising
physician; however, the legal responsibility remains with the
supervising physician at all times. A health care facility is not
legally responsible for the actions or omissions of an osteopathic
physician assistant unless the osteopathic physician assistant is
an employee of the facility.
(h) The acts or omissions of an osteopathic physician
assistant employed by health care facilities providing inpatient
services are the legal responsibility of the facilities.
Osteopathic physician assistants employed by such facilities in
staff positions shall be supervised by a permanently licensed
physician.
(i) A health care facility shall report in writing to the
board within sixty days after the completion of the facility's
formal disciplinary procedure, and also after the commencement, and
again after the conclusion, of any resulting legal action, the name
of any osteopathic physician assistant practicing in the facility
whose privileges at the facility have been revoked, restricted,
reduced or terminated for any cause including resignation, together
with all pertinent information relating to such action. The health
care facility shall also report any other formal disciplinary
action taken against any osteopathic physician assistant by the
facility relating to professional ethics, medical incompetence,
medical malpractice, moral turpitude or drug or alcohol abuse.
Temporary suspension for failure to maintain records on a timely
basis or failure to attend staff or section meetings need not be
reported.
(j) When functioning as an osteopathic physician assistant,
the osteopathic physician assistant shall wear a name tag that
identifies him or her as a physician assistant.
(k) (1) A supervising physician shall not supervise at any
time more than three osteopathic physician assistants, except that
a physician may supervise up to four hospital-employed osteopathic
physician assistants
: Provided, That an alternative supervisor has
been designated for each.
(2) An osteopathic physician assistant shall not perform any
service that his or her supervising physician is not qualified to
perform.
(3) An osteopathic physician assistant shall not perform any
service that is not included in his or her job description and
approved by the board as provided in this section.
(4) The provisions of this section do not authorize an
osteopathic physician assistant to perform any specific function or
duty delegated by this code to those persons licensed as
chiropractors, dentists, registered nurses, licensed practical
nurses, dental hygienists, optometrists or pharmacists or certified
as nurse anesthetists.
(l) An application for license or renewal of license shall be
accompanied by payment of a fee which shall be established by
legislative rule of the Board of Osteopathy pursuant to the
provisions of article three, chapter twenty-nine-a of this code.
(m) As a condition of renewal of an osteopathic physician
assistant license, each osteopathic physician assistant shall
provide written documentation satisfactory to the board of
participation in and successful completion of continuing education in courses approved by the board of osteopathy for the purposes of
continuing education of osteopathic physician assistants. The
osteopathy board shall propose legislative rules for minimum
continuing hours necessary for the renewal of a license. These
rules shall provide for minimum hours equal to or more than the
hours necessary for national certification. Notwithstanding any
provision of this chapter to the contrary, failure to timely submit
the required written documentation shall result in the automatic
suspension of any license as an osteopathic physician assistant
until such time as the written documentation is submitted to and
approved by the board.
(n) It is unlawful for any person who is not licensed by the
board as an osteopathic physician assistant to use the title of
"osteopathic physician assistant" or to represent to any other
person that he or she is an osteopathic physician assistant. Any
person who violates the provisions of this subsection is guilty of
a misdemeanor and, upon conviction thereof, shall be fined not more
than $2,000.
(o) It is unlawful for any osteopathic physician assistant to
represent to any person that he or she is a physician. Any person
who violates the provisions of this subsection is guilty of a
felony, and, upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than one, nor more than two
years, or be fined not more than $2,000, or both fined and
imprisoned.
(p) An osteopathic physician assistant may write or sign
prescriptions or transmit prescriptions by word of mouth, telephone
or other means of communication at the direction of his or her
supervising physician. The board shall propose rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code governing the eligibility
and extent to which such an osteopathic physician assistant may
prescribe at the direction of the supervising physician. The rules
shall provide for a state formulary classifying pharmacologic
categories of drugs which may be prescribed by such an osteopathic
physician assistant. In classifying such pharmacologic categories,
those categories of drugs which shall be excluded shall include, but
not be limited to, Schedules I and II of the Uniform Controlled
Substances Act, anticoagulants, antineoplastics,
radiopharmaceuticals, general anesthetics and radiographic contrast
materials. Drugs listed under Schedule III are limited to a
seventy-two hour supply without refill. The rules shall provide
that all pharmacological categories of drugs to be prescribed by an
osteopathic physician assistant shall be listed in each job
description submitted to the board as required in this section. The
rules shall provide the maximum dosage an osteopathic physician
assistant may prescribe.
(q) The rules shall also provide that to be eligible for such
prescription privileges, an osteopathic physician assistant must
submit an application to the board for such privileges. The rules shall also provide that an osteopathic physician assistant shall have
performed patient care services for a minimum of two years
immediately preceding the submission to the board of said application
for prescription privileges and shall have successfully completed an
accredited course of instruction in clinical pharmacology approved
by the board. The rules shall also provide that to maintain
prescription privileges, an osteopathic physician assistant shall
continue to maintain national certification as an osteopathic
physician assistant, and in meeting such national certification
requirements shall complete a minimum of ten hours of continuing
education in rational drug therapy in each licensing period. Nothing
in this subsection may be construed to permit an osteopathic
physician assistant to independently prescribe or dispense drugs.
§30-14A-2. Approval and licensure by board of osteopathy.
Approval of a job description and establishment of qualifications
for employment as an assistant to an osteopathic physician and surgeon
must be obtained from the Board of Osteopathy. The Board of
Osteopathy shall license each qualified applicant for employment as
an assistant to an osteopathic physician and surgeon upon submission
of a job description, and shall provide for biennial renewal of the
license. The board has the power to revoke or suspend any license of
an assistant to an osteopathic physician and surgeon, for cause, after
having given the person an opportunity to be heard in the manner
provided by sections eight and nine, article one of this chapter.
§30-14A-3. Rulemaking.
(a) The Board of Osteopathy shall propose rules for legislative
approval in accordance with the provisions of article three, chapter
twenty-nine-a of this code, to implement the provisions of this
article, including:
(1) Establishing fees; and
(2) Any other rules necessary to effectuate the provisions of
this article.
(b) The fees in effect on the effective date of the reenactment
of this section during the regular session of the Legislature in 2010
will remain in effect until modified by legislative rule.
§30-14A-4. Limitation on scope of duties.
Assistants to osteopathic physicians and surgeons may not sign
prescriptions or perform any service which his or her employing
osteopathic physician and surgeon is not qualified to perform.
§30-14A-5. Special volunteer osteopathic physician assistant
license; civil immunity for voluntary services rendered to
indigents.
(a) There is established a special volunteer osteopathic
physician assistant license for osteopathic physician assistants
retired or retiring from the active practice of osteopathy who wish
to donate their expertise for the medical care and treatment of
indigent and needy patients in the clinic setting of clinics
organized, in whole or in part, for the delivery of health care
services without charge. The special volunteer osteopathic physician
assistant license shall be issued by the West Virginia Board of Osteopathy to osteopathic physician assistants licensed or otherwise
eligible for licensure under this article and the legislative rules
promulgated hereunder without the payment of an application fee,
license fee or renewal fee, shall be issued for and the remainder of
the licensing period and renewed consistent with the boards other
licensing requirements. The board shall develop application forms for
the special license provided in this subsection which shall contain
the osteopathic physician assistant's acknowledgment that:
(1) The osteopathic physician assistant's practice under the
special volunteer osteopathic physician assistant license will be
exclusively devoted to providing osteopathic care to needy and
indigent persons in West Virginia;
(2) The osteopathic physician assistant will not receive any
payment or compensation, either direct or indirect, or have the
expectation of any payment or compensation, for any osteopathic
services rendered under the special volunteer osteopathic physician
assistant license;
(3) The osteopathic physician assistant will supply any
supporting documentation that the board may reasonably require; and
(4) The osteopathic physician assistant agrees to continue to
participate in continuing education as required by the board for a
special volunteer osteopathic physician assistant license.
(b) Any osteopathic physician assistant who renders any
osteopathic service to indigent and needy patients of a clinic
organized, in whole or in part, for the delivery of health care services without charge under a special volunteer osteopathic
physician assistant license authorized under subsection (a) of this
section without payment or compensation or the expectation or promise
of payment or compensation, is immune from liability for any civil
action arising out of any act or omission resulting from the rendering
of the osteopathic service at the clinic unless the act or omission
was the result of the osteopathic physician assistant's gross
negligence or willful misconduct. In order for the immunity under
this subsection to apply, there must be a written agreement between
the osteopathic physician assistant and the clinic pursuant to which
the osteopathic physician assistant will provide voluntary
uncompensated medical services under the control of the clinic to
patients of the clinic before the rendering of any services by the
osteopathic physician assistant at the clinic: Provided, That any
clinic entering into such written agreement is required to maintain
liability coverage of not less than $1 million per occurrence.
(c) Notwithstanding the provisions of subsection (b) of this
section, a clinic organized, in whole or in part, for the delivery of
health care services without charge is not relieved from imputed
liability for the negligent acts of an osteopathic physician assistant
rendering voluntary medical services at or for the clinic under a
special volunteer osteopathic physician assistant license authorized
under subsection (a) of this section.
(d) For purposes of this section, "otherwise eligible for
licensure" means the satisfaction of all the requirements for licensure set out in this article and in the legislative rules
promulgated thereunder. The term does not include the fee requirement
set out in this article or legislative rules promulgated by the board
relating to fees.
(e) Nothing in this section may be construed as requiring the
board to issue a special volunteer osteopathic physician assistant
license to any osteopathic physician assistant whose certificate,
license or other authorization to practice is or has been subject to
any disciplinary action, or to any osteopathic physician assistant who
has surrendered an osteopathic physician assistant certificate,
license or other authorization to practice, or caused such
certificate, license or other authorization to practice to lapse,
expire and become invalid in lieu of having a complaint initiated or
other action taken against his or her certificate, license or other
authorization to practice, or who has elected to place an osteopathic
physician assistant certificate, license or other authorization to
practice in inactive status in lieu of having a complaint initiated
or other action taken against his or her certificate, license or other
authorization to practice, or who has been denied a certificate,
license or other authorization to practice as an osteopathic physician
assistant in any jurisdiction.
(f) Any policy or contract of liability insurance providing
coverage for liability sold, issued or delivered in this state to any
osteopathic physician assistant covered under the provisions of this
article, shall be read so as to contain a provision or endorsement whereby the company issuing such policy waives or agrees not to assert
as a defense on behalf of the policyholder or any beneficiary thereof,
to any claim covered by the terms of such policy within the policy
limits, the immunity from liability of the insured by reason of the
care and treatment of needy and indigent patients by an osteopathic
physician assistant who holds a special volunteer osteopathic
physician assistant license.