H. B. 4327

         (By Delegates Tomblin, R. Phillips, Sponaugle,

           Lynch, Skaff, Boggs, Caputo, Marcum, White,

               Manchin and Mr. Speaker (Mr. Miley))

         [Introduced January 24, 2014; referred to the

         Committee on the Judiciary then Finance.]

A BILL to amend and reenact §30-3A-3 of the Code of West Virginia, 1931, as amended, relating to the management of intractable pain act; providing a felony criminal penalty for a physician, nurse or pharmacist prescribing, administering, or dispensing a controlled substance in violation of this section; providing fines collected for violations only be used for substance abuse and rehabilitation facilities; and requiring indefinite mandatory loss of license.

Be it enacted by the Legislature of West Virginia:

    That §30-3A-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

ARTICLE 3A. MANAGEMENT OF INTRACTABLE PAIN.

§30-3A-3. Acts subject to discipline or prosecution.

    (a) Nothing in this article shall prohibits disciplinary action or criminal prosecution of a physician for:

    (1) Failing to maintain complete, accurate, and current records documenting the physical examination and medical history of the patient, the basis for the clinical diagnosis of the patient, and the treatment plan for the patient;

    (2) Writing a false or fictitious prescription for a controlled substance scheduled in article two, chapter sixty-a of this code; or

    (3) Prescribing, administering, or dispensing a controlled substance in violation of the provisions of the federal Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§801, et seq. or chapter sixty-a of this code; or

    (4) Diverting controlled substances prescribed for a patient to the physician’s own personal use.

    (b) Nothing in this article shall prohibit disciplinary action or criminal prosecution of a nurse or pharmacist for:

    (1) Administering or dispensing a controlled substance in violation of the provisions of the federal Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§801, et seq. or chapter sixty-a of this code; or

    (2) Diverting controlled substances prescribed for a patient to the nurse’s or pharmacist’s own personal use.

    (c) A physician, nurse or pharmacist who is convicted in a criminal prosecution for violations of this section is guilty of a felony and, in addition to a minimum fine imposed of $250,000, shall be imprisoned in a state correctional facility for not less than five nor more than ten years. The license of such a physician, nurse or pharmacist to practice in this state shall be revoked indefinitely.

    The fines collected from violations of this section shall only be used for substance abuse and rehabilitation facilities.

    NOTE: The purpose of this bill is to provide a felony criminal penalty for violations of provisions of this section by a physician, nurse or pharmacist convicted in a criminal prosecution; and require a mandatory loss of license for an indefinite period. The bill also requires that fines collected for violations only be used for substance abuse and rehabilitation facilities.

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