H. B. 4166
(By Delegates Morgan, Martin,
Higgins, Long and Palumbo)
[Introduced January 24, 2008; referred to the
Committee on Health and Human Resources then the Judiciary.]
A BILL to amend and reenact §30-3-13 of the Code of West Virginia,
1931, as amended, relating to unauthorized practice of
medicine and surgery or podiatry or as a physician assistant;
criminal penalties; reducing the amount of fine for a person
practicing on an expired license for less than three months;
specifying as a felony the unauthorized practice of medicine
and surgery or podiatry or as a physician assistant in all
other instances; providing for enhanced criminal penalties
where serious bodily injury results from such unauthorized
practice.
Be it enacted by the Legislature of West Virginia:
That §30-3-13 of the Code of West Virginia, 1931, 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; criminal penalties; limitations.
(a) A person
shall may 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.
(b) 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.
(c) 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.
(d) No person may A person may not 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 and, upon conviction thereof, shall be fined not more
than ten thousand dollars, or imprisoned in the county jail not
more than twelve months, or both fined and imprisoned.
(e) Any person who practices, or holds himself or herself out
as qualified to practice, or uses any title, word or abbreviation
to indicate to or induce others to believe he or she is licensed to
practice as a physician, podiatrist, or physician assistant without
an active, valid West Virginia license to practice that profession
is guilty of a felony and, upon conviction thereof, shall be fined
not more than ten thousand dollars or imprisoned in a state
correctional facility for not less than one year nor more than five
years, or both fined and imprisoned.
(f) Any person who intentionally practices a health care
profession licensed under this article with an expired license
which has not been renewed for any period of time up to three
months is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not more than five thousand dollars or imprisoned in jail for not more than twelve months, or both fined and imprisoned.
(g) Any person who intentionally practices a health care
profession licensed under this article without an active, valid
license when such practice results in serious bodily injury is
guilty of a felony and, upon conviction therefor, shall be fined
not more than twenty thousand dollars or imprisoned in a state
correctional facility for not less than two years nor more than ten
years, or both fined and imprisoned.
For purposes of this subsection, "serious bodily injury" means
death, brain or spinal damage, disfigurement; fracture or
dislocation of bones or joints; limitations of neurological,
physical, or sensory functions; or any conditions that required
subsequent surgical repair.
(b) (h) 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) (i) 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) (j) 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 reduce the fine for
health care professionals whose licenses are expired and who
practice for less than three months, and to specify as a felony the
unauthorized practice of medicine and surgery or podiatry or as a
physician assistant in all other instances and to provide for
enhanced criminal penalties where serious bodily injury results
from such unauthorized practice.
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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