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WEST virginia legislature
2023 regular session
Introduced
Senate Bill 698
By Senator Takubo
[Introduced February 20, 2023; referred
to the Committee Health and Human Resources]
A BILL to amend and reenact §5B-1-10 of the Code of West Virginia, 1931, as amended; to amend and reenact §5B-2E-7b of said code; to amend and reenact §9-4B-1 and §9-4B-2 of said code; to amend and reenact §16-3C-2 of said code; to amend and reenact §16-4F-1 of said code; to amend and reenact §16-5-19 of said code; to amend and reenact §16-5H-2 and §16-5H-4 of said code; to amend and reenact §16-5Y-5 of said code; to amend and reenact §16-5BB-1 of said code; to amend and reenact §16-5DD-1 of said code; to amend and reenact §16-15-19 of said code; to amend and reenact §16-19-3 and §16-19-14 of said code; to amend and reenact §16-30-3 and §16-30-25 of said code; to amend and reenact §16-39-3 of said code; to amend and reenact §16-46-2 of said code; to amend and reenact §16-54-1 of said code; to amend and reenact §16-57-3 of said code; to amend and reenact §18-5-22b of said code; to amend and reenact §18B-16-3 of said code; to amend and reenact §18C-3-3 of said code; to amend and reenact §20-2-46e of said code; to amend and reenact §27-5-2, §27-5-3, and §27-5-4 of said code; to amend and reenact §29-5A-1 of said code; to amend and reenact §29-29-3 of said code; to amend and reenact §29-30-2 of said code; to amend and reenact §30-1-7a of said code; to amend and reenact §30-3-2, §30-3-5, §30-3-7, §30-3-9, §30-3-11c, and §30-3-15 of said code; to amend and reenact §30-3D-1, §30-3D-2, and §30-3D-3 of said code; to amend and reenact §30-3E-1, §30-3E-2, §30-3E-3, §30-3E-4, §30-3E-7, §30-3E-9, §30-3E-10a, §30-3E-11, §30-3E-12, §30-3E-12a, §30-3E-13, §30-3E-14, §30-3E-15, §30-3E-16, §30-3E-17, §30-3E-18, and §30-3E-19 of said code; to amend and reenact §30-14-3, §30-14-9a, §30-14-11a, and §30-14-14 of said code; to amend and reenact §30-36-10 of said code; to amend and reenact §33-15-14 of said code; to amend and reenact §33-42-3 of said code; to amend and reenact §55-7B-2 of said code; to amend and reenact §60A-9-5 of said code; to amend and reenact §60B-1-1 of said code; to amend and reenact §61-2-10b of said code; to amend and reenact §61-12-7 of said code; to amend and reenact §64-9-11, §64-9-13, and §64-9-14 of said code; all relating to changing the title "physician assistant" to "physician associate"; changing all physician assistant references to physician associate; correcting physician relationship from supervisory to collaborative to conform with code; and defining physician associate to be synonymous with physician assistant or any other proper title designated by the American Academy of Physician Associates.
Be it enacted by the Legislature of West Virginia:
(a) As used in this section, the following words and terms have the following meanings:
(1) "Continuum of Care" means the following health care providers or facilities, singularly or consecutively, that provide care for an individual:
(A) Assisted Living residence, as regulated and defined by §16-5D-1 et seq. of this code;
(B) Behavioral Health service, as defined by §16-2D-2(7) of this code;
(C) Hospice, as regulated and defined by §16-5I-1 et seq. of this code;
(D) Hospitals, as regulated and defined by §16-5B-1 et seq. of this code;
(E) Home Health agency, as regulated and defined by §16-2C-1 et seq. of this code;
(F) Skilled Nursing Facility/Nursing Home, as regulated and defined by §16-5C-1 et seq. of this code; and
(G) Emergency Medical Service Agency, as defined by §16-4C-1 et seq. of this code.
(2) "Department" means the Department of Commerce, including any and all agencies 11 within the Department of Commerce.
(3) "Direct-care status" means health care providers that for the majority of time deliver care or services to individuals in such a manner that the provider could be personally identifiable by the recipient of services.
(4) "Entity" means an individual, partnership, corporation, or other legal entity that employs or plans to employ skilled workers.
(5) "Government agency" means any state, county, municipal, or local public agency, board, committee, or division, including educational, vocational, and technical schools.
(6) "Health care facility" means a publicly or privately owned facility, agency, or entity that offers or provides health services, whether a for-profit or nonprofit entity and whether or not licensed, or required to be licensed, in whole or in part.
(7) "Health care provider" means a person authorized by law to provide professional health services in this state to an individual.
(8) "Health services" means clinically related preventive, diagnostic, treatment, or rehabilitative services.
(9) "Indirect-care status" means health care providers that for the majority of time perform managerial or administrative functions and are not in direct contact with consumers of care.
(10) "New graduate employee" means a health care provider within 18 months of graduation from a program qualifying the individual as a health care provider.
(11) "Private third-party" means an individual, partnership, corporation, or other legal entity that employs or plans to employ skilled workers in the workforce or that teaches, trains, certifies, or provides licensure for individuals in the workforce.
(12) "Report" means the report required to be completed and issued by the Secretary pursuant to this article.
(13) "Secretary" means the Secretary of the Department of Commerce.
(14) "Separations" means the number of full-time or part-time employees leaving an entity voluntarily or involuntarily excluding per diem, contract, agency, or traveling health care professionals.
(15) "Workforce" means an individual employed by an entity within the continuum of care.
(b) On or before February 1, 2021, the Secretary shall research, survey, study, and issue a public report on the existing workforce in the continuum of care, as well as the anticipated future workforce needs over the next 15 years.
(c) In addition to being made publicly available, the completed report shall be provided to the Legislative Oversight Commission on Health and Human Resources Accountability (LOCHHRA), created pursuant to §16-29E-1 et seq. of this code.
(d) In order to create the report required in this section in the most cost-effective and efficient manner, the Secretary may seek or obtain grants to facilitate the research, survey, and study; may enter into agreements with other governmental agencies, committees, research divisions, including educational institutions, for the collection and analysis of information; and may contract with private persons or companies: Provided, That any and all agreements, grants, or contracts for the assistance or sharing of information shall include confidentiality provisions consistent with the provisions of this section.
(e) The findings in the report shall summarize the data collected utilizing the categories and professions contained in this section. In presenting the findings, the report shall also break down its summaries on a statewide, regional, and county basis.
(f) The report, or any other disclosure of collected data, shall not identify specific entities, providers, or facilities, nor make specific correlation between an entity, provider, or facility and the workforce numbers at that entity, provider, or facility.
(g) To facilitate the timely collection and accuracy of data, the department is expressly authorized to seek, and specifically request, information from any entity, government agency, health care provider, health care facility, or private third-party: Provided, That the department shall only request information reasonably designed to elicit the information that is sought by this section, and in a manner intended to minimize obstruction to the requested entities providing necessary health services. Any entity, government agency, heath care provider, health care facility, or private third-party in receipt of a survey or request for information from the department shall comply with the request and provide any and all requested information pertinent to the research, survey, and study.
(h) The department shall research, survey, and study the following aspects of the continuum of care workforce:
(1) The number of individuals employed;
(2) The number of full-time and part-time individuals so employed;
(3) The number of contract, agency, or traveling nurse or specialists utilized;
(4) The number of vacancies;
(5) The number of employee separations;
(6) The number of new graduate employee separations;
(7) The average number of patients/residents treated at each entity;
(8) The overall number of individuals licensed, certified, or registered by the state to work in the health care continuum;
(9) The current rate of licensure, certification, or registration by the state to work in the health care continuum;
(10) The anticipated growth in the number of individuals that will be licensed, certified, or registered in the state to work in the continuum of care over the next 15 years;
(11) The availability of classes or courses offered by secondary, vocational, technical, community, and higher education schools or institutions to train those necessitating licensure, certification, or registration to work in the health care continuum; and
(12) The average number of graduates per year in those classes or courses offered to train those necessitating licensure, certification, or registration to work in the health care continuum.
(i) In collecting and reporting the data, the department shall utilize, at a minimum, the following categories and professions within the continuum of care:
(1) Categories of entities:
(i) Assisted Living;
(ii) Behavioral Health;
(iii) Hospice;
(iv) Hospital;
(v) Home Health;
(vi) Skilled Nursing Facility/Nursing Home; and
(vii) Emergency Medical Service Agency.
(2) Job Professions delineated by direct-care or indirect-care status:
(i) Physician (M.D./D.O.) by specialty;
(ii) Physician Assistant Associate;
(iii) Advanced Practice Registered Nurse by role and certification;
(iv) Registered Nurse;
(v) Licensed Professional Nurse;
(vi) Nurse Aide;
(vii) Medical Assistant;
(viii) Dietician;
(ix) Social Worker;
(x) Physical Therapist;
(xi) Physical Therapy Assistant;
(xii) Occupational Therapist;
(xiii) Occupational Therapy Assistant;
(xiv) Speech Therapist;
(xv) Respiratory Therapist;
(xvi) Psychologist;
(xvii) MDS/coding specialist;
(xviii) Pharmacist;
(xix) Pharmacy Technician;
(xx) Radiologic Technologist; and
(xxi) Emergency Medical Service Personnel.
(j) Any material, data, or other writing made or received by the department for the purpose of conducting the research, survey, study, or report, is deemed to be confidential trade secrets which are exempt from disclosure under the provisions of §29B-1-4 of this code.
(a) General. – When a qualified professional services destination facility is located at or adjacent to an existing historic resort hotel with at least five hundred rooms and the qualified professional services destination facility eligible for credit under this section is primarily engaged in furnishing services that are not subject to the tax imposed by article fifteen, chapter eleven of this code, then in lieu of the credits that otherwise would be allowable under section seven or seven-a of this article, the eligible company that complies with the requirements of this section may claim the credit provided in this section: Provided, That the maximum amount of credit allowable under this section is equal to twenty-five percent of the eligible company's qualified investment, as defined in this section.
(b) Definitions. – The following words and phrases when used in this section have the meanings given to them in this subsection unless the context in which used clearly indicates that a different meaning was intended by the Legislature.
(1) "Agreement" means an agreement entered into under subsection (g) of this section.
(2) "Compensation" means wages, salaries, commissions and any other form of remuneration paid to employees for personal services.
(3) "Cost-of-living adjustment" for any calendar year is the percentage, if any, by which the consumer price index for the preceding calendar year exceeds the consumer price index for the calendar year 2015.
(4) "Consumer price index" for any calendar year means the average of the federal consumer price index as of the close of the twelve-month period ending on August 31 of that calendar year.
(5) "Eligible company" for purposes of this section means any corporation, limited liability company, partnership, limited liability partnership, sole proprietorship, business trust, joint venture or any other entity operating a qualified professional services destination facility, whether owned or leased, within the state that: (A) creates at least one hundred twenty-five new jobs in this state within 36 months after the date the qualified investment is placed into service or use, and maintains those jobs for the entire ten year life of the tax credit specified in this section, (B) makes available to its full-time employees health insurance coverage and pays at least fifty percent of the premium for the health insurance, (C) generates, within 36 months after the date the qualified investment is placed into service or use, not less than $10 million of gross receipts upon which the taxes imposed under article twenty-seven, chapter eleven of this code are paid, and (D) meets the standards, limitations and requirements of this section and of the development office. An eligible company may operate or intend to operate directly or indirectly through a lessee or a contract operator.
(6) "Federal consumer price index" means the most recent consumer price index as of August 31 each year for all urban consumers published by the United States Department of Labor.
(7) "Health insurance benefits" means employer-provided coverage for medical expenses of the employee or the employee and his or her family under a group accident or health plan, or employer contributions to an Archer medical savings account, as defined in Section 220 of the Internal Revenue Code of 1986, as amended, or to a health savings account, as defined in Section 223 of the Internal Revenue Code, of the employee when the employer's contribution to any such account is not less than fifty percent of the maximum amount permitted for the year as employer-provided coverage under Section 220 or 223 of the Internal Revenue Code, whichever section is applicable.
(8) "Historic resort hotel" means a resort hotel registered with the United States Department of the Interior on the effective date of this amendment as a national historic landmark in its National Registry of Historic Places having not fewer than five hundred guest rooms.
(9) "New employee" means a person residing and domiciled in this state hired by the taxpayer to fill a position or a job in this state which previously did not exist in the taxpayer's business enterprise in this state prior to the date the application was filed under subsection (c) of this section. In no event may the number of new employees exceed the total net increase in the employer's employment in this state: Provided, That the Tax Commissioner may require that the net increase in the taxpayer's employment in this state be determined and certified for the taxpayer's controlled group as defined in article twenty-four of this chapter. In addition, a person is a "new employee" only if the person's duties are on a regular, full-time and permanent basis:
(A) "Full-time employment" means employment for at least eighty hours per month at a wage not less than the amount specified in subdivision (1), subsection (d) of this section; and
(B) "Permanent employment" does not include employment that is temporary or seasonal and therefore the wages, salaries and other compensation paid to the temporary or seasonal employees will not be considered for purposes of this section even if the compensation paid to the temporary or seasonal employee equals or exceeds the amount specified in paragraph (A) of this subdivision.
(10) "New job" means a job which did not exist in the business of the taxpayer in this state prior to filing the application for benefits under this section, and which is filled by a new employee.
(11) "Professional services" means only those services provided directly by: a physician licensed to practice in this State, a surgeon licensed to practice in this State, a dentist licensed to practice in this State, a podiatrist licensed to practice in this State, an osteopathic physician licensed to practice in this State, a psychologist licensed to practice in this State, an optometrist licensed to practice in this State, a registered nurse licensed to practice in this State, a physician assistant associate licensed to practice in this State, a licensed practical nurse licensed to practice in this State, a dental hygienist licensed to practice in this State, a social worker licensed to practice in this State, or any other health care professional licensed to practice in this State;
(12) "Qualified investment" means one-hundred percent of the cost of property purchased or leased for the construction and equipping of a qualified professional services destination facility which is placed in service or use in this State by an eligible company.
(A) The cost of property purchased for a qualified professional services destination facility is determined under the following rules:
(i) Cost does not include the value of property given in trade or exchange for the property purchased for business expansion.
(ii) If property is damaged or destroyed by fire, flood, storm or other casualty, or is stolen, then the cost of replacement property does not include any insurance proceeds received in compensation for the loss.
(iii) The cost of real property acquired by written lease for a primary term of ten years or longer is one hundred percent of the rent reserved for the primary term of the lease, not to exceed ten years.
(iv) The cost of tangible personal property acquired by written lease for a primary term of not less than four years.
(v) In the case of self-constructed property, the cost thereof is the amount properly charged to the capital account for depreciation in accordance with federal income tax law.
(vi) The cost of property used by the taxpayer out-of-state and then brought into this State, is determined based on the remaining useful life of the property at the time it is placed in service or use in this State, and the cost is the original cost of the property to the taxpayer less straight line depreciation allowable for the tax years or portions thereof the taxpayer used the property outside this State. In the case of leased tangible personal property, cost is based on the period remaining in the primary term of the lease after the property is brought into this State for use in a new or expanded business facility of the taxpayer, and is the rent reserved for the remaining period of the primary term of the lease, not to exceed ten years, or the remaining useful life of the property, determined as aforesaid, whichever is less.
(c) Credit against taxes. – The credit allowed by this section shall be equal to twenty-five percent of the eligible company's qualified investment in the qualified professional services destination facility and shall be taken and applied as provided in this subsection (c). Notwithstanding any other provision of this article to the contrary, no taxpayer or group of taxpayers may gain entitlement to more than $37.5 million total aggregate tax credit under this section and no taxpayer, or group of taxpayers, in the aggregate may apply more than $2.5 million of annual credit in any tax year under this section, either in the form of a refund or directly against a tax liability or in any combination thereof. This limitation applies to initial tax credit attributable to qualified investment in a qualified professional services destination facility, and to qualified investment in a follow-up project expansion, so that credit attributable additively and in the aggregate to both may not be applied to exceed $2.5 million annual credit in any tax year.
(1) Application of credit. – The amount of credit allowable under this subsection shall be taken over a ten-year period, at the rate of one tenth of the amount thereof per taxable year, beginning with the taxable year in which the eligible company places the qualified professional services destination facility, or part thereof, in service or use in this state, unless the eligible company elected to delay the beginning of the ten-year period until the next succeeding taxable year. This election shall be made in the annual income tax return filed under chapter eleven of this code for the taxable year in which the qualified professional services destination facility is first placed into service or use by the taxpayer. Once made, the election may not be revoked. The annual credit allowance is taken in the manner prescribed in subdivision (3) of this subsection (c): Provided, That if any credit remains after the initial ten year credit application period, the amount of remaining credit is carried forward to each ensuing tax year until used or until the expiration of the fifth taxable year subsequent to the end of the initial ten year credit application period. If any unused credit remains after expiration of the fifth taxable year subsequent to the end of the initial ten year credit application period, the amount thereof is forfeited. No carryback to a prior taxable year is allowed for the amount of any unused portion of any annual credit allowance.
(2) Placed in service or use. – For purposes of the credit allowed by this subsection (c), qualified investment or qualified investment property is considered placed in service or use in the earlier of the following taxable years:
(A) The taxable year in which, under the eligible company's depreciation practice, the period for depreciation with respect to the property begins; or
(B) The taxable year in which the property is placed in a condition or state of readiness and availability for a specifically assigned function.
(3) Application of annual credit allowance.
(A) In general.- The aggregate annual credit allowance for the current taxable year is an amount equal to the one-tenth part allowed under subdivision (1) of this subsection for qualified investment placed into service or use.
(B) Application of current year annual credit allowance. – The amount determined under this subsection (c) is allowed as a credit against one hundred percent of the eligible company's state tax liabilities applied as provided in paragraphs (C) and (D) of this subdivision (3), and in that order:
(C) Corporation net income taxes. - The amount of allowable tax credit for the year determined under paragraph (A) of this subdivision (3) shall first be applied to reduce the taxes imposed by article twenty-four, chapter eleven of this code, for the taxable year determined before application of allowable credits against tax.
(D) Personal income taxes. –
(i) If the eligible company is an electing small business corporation, as defined in section 1361 of the United States Internal Revenue Code of 1986, as amended, a partnership, a limited liability company that is treated as a partnership for federal income tax purposes or a sole proprietorship, then any unused credit after application of paragraph (C) of this subdivision (3) is allowed as a credit against the taxes imposed by article twenty-one, chapter eleven of this code on the members, owners, partners or interest holders in the eligible company.
(ii) Electing small business corporations, limited liability companies, partnerships and other unincorporated organizations shall allocate the credit allowed by this article among their members in the same manner as profits and losses are allocated for the taxable year.
(E) No credit is allowed under this subdivision (3) against any employer withholding taxes imposed by article twenty-one, chapter eleven of this code.
(F) The tax credits allowed under articles thirteen-j, thirteen-q, thirteen-s, thirteen-r, thirteen-w, and thirteen-aa of this code may not be applied to offset any tax against which the tax credit allowed under this article is allowed or authorized. No person, entity, company, or eligible company authorized or entitled to any tax credit allowed under this section or any member of the unitary group or any member of the controlled group of which the taxpayer is a member, may gain entitlement to any other economic development tax credit or economic development tax incentive which relates to the investment or activity upon which the credit authorized under this section is based.
(G) (i) In order to effectuate the purposes of this subdivision (3), the Tax Commissioner may propose for promulgation rules, including emergency rules, in accordance with article three, chapter twenty-nine-a of this code.
(ii) The Tax Commissioner may apply any amount of the tax credit otherwise available to a Taxpayer under this article, to pay any delinquent West Virginia state tax liability of the taxpayer, and interest and penalties as applicable.
(iii) Any amount of the tax credit otherwise available to a taxpayer under this article may be applied by the applicable administering agency to pay any outstanding obligation to a Workers' Compensation Fund, as defined in article two-c of chapter twenty-three of this code, or any outstanding obligation under the West Virginia Unemployment Compensation Act.
(iv) Any amount of the tax credit otherwise available to a taxpayer under this article, may be applied by the applicable administering agency to pay any delinquent or unpaid assessment, fee, fine, civil penalty or monetary imposition imposed by the West Virginia Division of Environmental Protection or the United States Environmental Protection Agency, or any agency charged with enforcing federal, state or local environmental or hazardous waste regulations.
(H) Unused credit, refundable credit. – If any annual credit remains after application of preceding paragraphs of this subdivision (3), the amount thereof shall be refunded annually to the eligible company, and distributed in accordance with the credit distribution specified in this subdivision (3): Provided, That the amount thereof may not exceed the limitation on annual tax credit or the limitation on total aggregate tax credit specified in this section.
(I) Forfeiture of credit. - If any credit remains after expiration of the fifth taxable year subsequent to the end of the initial ten year credit application period, such credit is forfeited, and may not be used to offset any West Virginia tax liability.
(d) Compensation of employees filling new jobs.
(1) The new jobs and new employee criteria which count toward qualification of a taxpayer as an eligible company for purposes of the tax credit allowed by this section shall be subject to the following limitations and requirements. A job counts toward qualification of a taxpayer as an eligible company if the job is a new job, as defined in this section, held by a new employee, as defined in this section, and the new job:
(A) Pays a median wage of at least $37,000 annually. Beginning January 1, 2015, and on January 1 of each year thereafter, the Tax Commissioner shall prescribe an amount that shall apply in lieu of the $37,000 amount for new jobs filled during that calendar year. This amount is prescribed by increasing the $37,000 figure by the cost-of-living adjustment for that calendar year. If any increase under this subdivision is not a multiple of $50, the increase shall be rounded to the next lowest multiple of $50;
(B) Provides health insurance. The employer may, in addition, offer benefits including child care, retirement and other benefits; and
(C) Is a full-time, permanent position, as those terms are defined in this section.
(D) Jobs that pay less than the statewide average nonfarm payroll wage, as determined annually by the West Virginia Bureau of Employment Programs, or that pay that salary, but do not also provide health benefits in addition to the salary, do not count toward qualification of a taxpayer as an eligible company under this section. Jobs that are less than full-time, permanent positions do not count toward qualification of a taxpayer as an eligible company under this section.
(E) The employer having obtained qualification as an eligible company under this section for the year in which the new job is filled is not required to raise wages of the employees currently employed in the new jobs upon which the initial qualification as an eligible company under this section was based by reason of the cost-of-living adjustment for new jobs filled in subsequent years provided the employer continues to provide healthcare.
(e) Application and review.
(1) Application. - An eligible company that meets the requirements of this section may apply to the Development Office for entitlement to the tax credit authorized under this section. The application shall be on a form prescribed by the Development Office and shall include all of the following:
(A) The name and address of the applicant;
(B) Documentation that the applicant is a eligible company;
(C) Documentation that the applicant meets the requirements of this section;
(D) Documentation that the applicant does not owe any delinquent taxes or any other amounts to the federal government, this state or any political subdivision of this state;
(E) An affidavit that the applicant has not filed for or publicly announced its intention to file for bankruptcy protection and that the company will not seek bankruptcy protection within the next six calendar months following the date of the application;
(F) A waiver of confidentiality under section five-d, article ten, chapter eleven of this code for information provided in the application; and
(G) Any other information required by the Development Office.
(f) Credit allowable.
(1) Certified multiple year projects.
(A) In general. - A multiple year qualified professional services destination facility project certified by the West Virginia Development Office is eligible for the credit allowable by this article. A project eligible for certification under this section is one where the qualified investment under this article creates at least the required minimum number of new jobs but the qualified investment is placed in service or use over a period of up to three successive tax years: Provided, That the qualified investment is made pursuant to a written business facility development plan of the taxpayer providing for an integrated project for investment at one or more new or expanded business facilities, a copy of which must be attached to the taxpayer's application for project certification and approved by the West Virginia Development Office, and the qualified investment placed in service or use during the first tax year would not have been made without the expectation of making the qualified investment placed in service or use during the next two succeeding tax years.
(B) Application for certification. - The application for certification of a project under this section shall be filed with and approved by the West Virginia Development Office prior to any credit being claimed or allowed for the project's qualified investment and new jobs created as a direct result of the qualified investment. This application shall be approved in writing and contain the information as the West Virginia Development Office may require to determine whether the project should be certified as eligible for credit under this article.
(C) Review. - Within 30 days of receipt of a complete application, the Development Office, in conjunction with the Tax Division of the Department of Revenue, shall review the application and determine if the applicant is an eligible company and that the requirements of this section have been met. Applications not approved within the 30 days specified in this subdivision are hereby deemed denied.
(D) Approval. - The Development Office may approve or deny the application. Upon approval of an application, the Development Office shall notify the applicant in writing and enter into an agreement with the eligible company for benefits under this section.
(2) Certified follow-up project expansions.
(A) An eligible company that intends to undertake a follow-up project expansion, may apply to the West Virginia Development Office for certification of a single, one-time, follow-up project expansion, and entitlement to an additional tax credit under this section in an amount which is the lesser of twenty-five percent of qualified investment in the follow-up project expansion or $12.5 million. No taxpayer, or group of taxpayers, in the aggregate may apply more than $2.5 million of annual credit in any tax year under this section, either in the form of a refund or directly against a tax liability or in any combination thereof. This limitation applies to initial tax credit attributable to qualified investment in a qualified professional services destination facility, and to qualified investment in a follow-up project expansion, so that credit attributable additively and in the aggregate to both may not be applied to exceed $2.5 million annual credit in any tax year.
(B) The requirements, limitations and qualifications applicable to qualified professional services destination facility projects under this section apply to follow-up project expansions, except for those requirements, limitations and qualifications expressly specified in this subdivision (2).
(C) Requirements for certification of a follow-up project expansion are as follows:
(i) The eligible company, pursuant to certification and authorization for entitlement to tax credit under subsection (1) of this section (f), has placed qualified investment of not less than $80 million into service in a qualified professional services destination facility within an initial period of not more than three tax years;
(ii) The eligible company intends to place additional qualified investment in service or use in the previously certified qualified professional services destination facility project, or an expansion or extension thereof. In no case shall a follow-up project expansion be certified if the follow-up project expansion property is not contiguous to, or within not more than one mile of, the initial qualified professional services destination facility;
(iii) The eligible company proposes to place the qualified investment in the follow-up project expansion in service or use in the fourth tax year subsequent to the tax year in which qualified investment was first placed into service or use in the initial qualified professional services destination facility project, or under a multiple year project certification, in the fourth, fifth and sixth tax year subsequent to the tax year in which qualified investment was first placed into service or use in the initial qualified professional services destination facility project;
(iv) The follow-up project expansion must create and maintain at least twenty-five net new jobs held by new employees, in addition to the new jobs created by the initial qualified professional services destination facility project. The loss of any West Virginia job at the eligible company will be subtracted from the count of new jobs attributable to the follow-up project expansion;
(v) The West Virginia Development Office shall not issue more than one certification for any follow-up project expansion; and
(vi) The West Virginia Development Office shall not issue certification of a follow-up project expansion unless the applicant provides convincing evidence to show that the follow-up project expansion will result in jobs creation specified in this subdivision, that such jobs will remain and be maintained in West Virginia for at least ten years subsequent to the placement of qualified investment into service or use in the follow-up project expansion, that the follow-up project expansion will not operate to the detriment of other West Virginia businesses or to the detriment of the economy, public welfare or moral character of West Virginia or its people.
(g) Agreement.
(1) The agreement between the eligible company and the Development Office shall be entered into before any benefits may be provided under this section.
(2) The agreement shall do all of the following:
(A) Specify the terms and conditions the eligible company must comply with in order to receive benefits under this section, other than those terms, limitations and conditions specified and mandated by statute or regulation; and
(B) Require the Development Office to certify all of the following to the Tax Division of the Department of Revenue each taxable year an agreement under this section is in effect:
(i) That the eligible company is eligible to receive benefits under this section;
(ii) The number of new jobs created by the company during each taxable year;
(iii) The amount of gross wages, as determined for purposes of Form W2, as filed with the Internal Revenue Service, being paid to each individual employed in a new job;
(iv) The amount of an eligible company's qualified investment;
(v) The maximum amount of credit allowable to the eligible company under this section; and
(vi) Any other information deemed necessary by the Development Office.
(h) Filing and contents.
(1) Filing. – On or before the due date of the income tax return for each tax year in which the agreement is in effect, an eligible company shall file with the Tax Division of the Department of Revenue a form prescribed by the Tax Commissioner.
(2) Contents. - The form specified under subdivision (1) of this subsection (h) shall request the following information:
(A) The name and Employer Identification Number of the eligible company;
(B) The effective date of the agreement;
(C) The reporting period end date;
(D) Information relating to each individual employed in a new job as required by the Tax Commissioner;
(E) Aggregate gross receipts for the tax period and gross receipts on which tax has been paid under article twenty-seven, chapter eleven of this code for the tax period; and
(F) Any other information required by the Tax Commissioner.
(3) Taking of credit. - The taxpayer, participant or participants claiming the credit for qualified investments in a certified project shall annually file with their income tax returns filed under chapter eleven of this code:
(A) Certification that the taxpayer's or participant's qualified investment property continues to be used in the project and if disposed of during the tax year, was not disposed of prior to expiration of its useful life;
(B) Certification that the new jobs created by the project's qualified investment continue to exist and are filled by persons who are residents of this State; and
(C) Any other information the Tax Commissioner requires to determine continuing eligibility to claim the annual credit allowance for the project's qualified investment.
(4) Confidentiality.- The contents of the completed form shall be subject to the confidentiality rules set forth in section five-d, article ten, chapter eleven of this code: Provided, That notwithstanding the provisions of section five-d, article ten, chapter eleven of this code, or any other provision of this code, tax returns, tax return information and such other information as may be necessary to administer the tax credits and programs authorized and specified by this article and in this section may be exchanged between the Tax Commissioner and the West Virginia Development Office without restriction.
The following words, when used in this article, have meanings ascribed to them in this section, except in those instances where the context clearly indicates a different meaning:
(a) "Board" means the physician/medical practitioner provider Medicaid enhancement board created to develop, review and recommend the physician/medical practitioner provider fee schedule;
(b) "Physician provider" means an allopathic or osteopathic physician, rendering services within this state and receiving reimbursement, directly as an individual provider or indirectly as an employee or agent of a medical clinic, partnership or other business entity;
(c) "Nurse practitioner" means a registered nurse qualified by virtue of his or her education and credentials and approved by the West Virginia board of examiners for registered professional nurses to practice as an advanced practice nurse independently or in a collaborative relationship with a physician;
(d) "Nurse-midwife" means a qualified professional nurse registered with the West Virginia board of examiners for registered professional nurses who by virtue of additional training is specifically qualified to practice nurse-midwifery according to the statement of standards for the practice of nurse-midwifery as set forth by the American college of nurse-midwives;
(e) "Physician assistant associate" means an assistant to a physician who is a graduate of an approved program of instruction in primary health care or surgery, has attained a baccalaureate or master's degree, has passed the national certification examination and is qualified to perform direct patient care services under the supervision of through collaboration with a physician. This term has the same meaning as "physician assistant" or any other title the American Academy of Physician Associates, or its successor association, currently designates for the profession that formerly was referred to as a physician assistant.
(f) "Registered nurse first assistant" means one who:
(1) Holds a current active registered nurse licensure;
(2) Is certified in perioperative nursing; and
(3) Has successfully completed and holds a degree or certificate from a recognized program which consists of:
(A) The association of operating room nurses, inc., care curriculum for the registered nurse first assistant; and
(B) One year of post-basic nursing study, which shall include at least forty-five hours of didactic instruction and one hundred twenty hours of clinical internship or its equivalent of two college semesters;
A registered nurse who was certified by the certification board of perioperative nursing before one thousand nine hundred ninety-seven is not required to fulfill the requirements of subdivision (3) of this subsection;
(g) "Perioperative nursing" means a practice of nursing in which the nurse provides preoperative, intraoperative and post-operative nursing care to surgical patients;
(h) "Secretary" means the secretary of the Department of Health and Human Resources; and
(i) "Single state agency" means the single state agency for Medicaid in this state.
There is hereby continued the West Virginia physician/medical practitioner provider Medicaid enhancement board to consist of eleven members. The board shall consist of ten members, appointed by the Governor, and the secretary, or his or her designee, who shall serve as an ex officio, nonvoting member. The members appointed by the Governor shall include five allopathic physicians, one osteopathic physician, one nurse practitioner, one nurse-midwife, and one physician assistant associate and one lay person. The Governor shall select four allopathic physician board members from a list of eight recommendations submitted to the Governor by the state medical association, one allopathic physician board member from a list of three recommendations submitted to the Governor by the state academy of family physicians, the osteopathic physician board member from three recommendations submitted to the Governor by the state osteopathic society, the nurse practitioner from three recommendations submitted to the Governor by the advanced nursing practice conference group of the West Virginia nurses association, the nurse-midwife from three recommendations submitted to the Governor by the West Virginia chapter of the American college of nurse-midwives, the physician assistant associate from three recommendations submitted to the Governor by the state physician assistant associate association and the lay board member, at his or her discretion. The respective associations shall submit their recommendations to the Governor within five days of the effective date of this article. The Governor shall make all appointments within 15 days from the receipt of all recommendations. After the initial appointment of the board, any appointment to fill a vacancy shall be for the unexpired term only, made in the same manner as the initial appointment, and the terms of all members expire on July 1, 1996. The board shall select a member to act as chairperson. The chairperson shall be the chief administrative officer and shall preside over official transactions of the board.
(a) HIV-related testing should be recommended by healthcare providers as part of a routine screening for treatable conditions and as part of routine prenatal and perinatal care. A physician, dentist, nurse practitioner, nurse midwife, physician assistant associate or the commissioner may also request targeted testing for any of the following:
(1) When there is cause to believe that the test could be positive. Persons who engage in high risk behavior should be encouraged to be screened for HIV at least annually;
(2) When there is cause to believe that the test could provide information important in the care of the patient; or
(3) When there is cause to believe that the results of HIV-testing of samples of blood or body fluids from a source patient could provide information important in the care of medical or emergency responders or other persons identified in rules proposed by the department for approval by the Legislature in accordance with the provisions of article three, chapter twenty-nine-a of this code: Provided, That the source patient whose blood or body fluids is being tested pursuant to this section must have come into contact with a medical or emergency responder or other person in such a way that a significant exposure has occurred;
(4) When there is no record of any HIV-related or other sexually transmitted disease testing during pregnancy and the woman presents for labor and delivery.
(b) All health care providers, the bureau or a local health department that routinely bill insurance companies or other third-party providers may bill for HIV-related testing and treatment.
(c) A patient consents to HIV-related testing when:
(1) The patient is informed either orally or in writing that:
(A) HIV-related testing will be performed as part of his or her routine care;
(B) HIV-related testing is voluntary; and
(C) He or she may decline HIV-related testing (opt-out); or
(2) The patient is informed that the patient’s general consent for medical care includes consent for HIV-related testing.
(d) A patient who opts-out of HIV-related testing must be informed that HIV-related testing may be obtained anonymously at a local or county health department.
(e) Any person seeking an HIV-related test in a local or county health department or at other HIV test setting provided by the commissioner who wishes to remain anonymous has the right to do so and must be provided written informed consent through the use of a coded system with no linking of individual identity to the test request or results.
(f) County or local health departments that routinely bill insurance companies or other third-party payers for service may bill for an HIV-related test if the person requesting the test does not request anonymity. No person may be refused a test at a local health department due to a lack of insurance or due to a request to remain anonymous.
(g) A person may not decline or opt-out of HIV-related testing and the provisions of subsections (a) and (c) of this section do not apply when:
(1) A health care provider or health facility procures, processes, distributes or uses:
(A) A human body part, including tissue and blood or blood products, donated for:
(i) A purpose specified under the uniform anatomical gift act; or
(ii) Transplant recipients;
(B) Semen provided for the purpose of artificial insemination and an HIV-related test is necessary to ensure medical acceptability of a recipient or such gift or semen for the purposes intended;
(2) A person is unable or unwilling to grant or withhold consent as the result of a documented bona fide medical emergency, as determined by a treating physician taking into account the nature and extent of the exposure to another person and the HIV-related test results are necessary for medical diagnostic purposes to provide appropriate emergency care or treatment to a medical or emergency responder, or any other person who has come into contact with a source patient in such a way that a significant exposure necessitates HIV testing or to a source patient who is unable to consent in accordance with rules proposed by the department for approval by the Legislature in accordance with article three, chapter twenty-nine-a of this code: Provided, That necessary treatment may not be withheld pending HIV test results: Provided, however, That all sampling and HIV testing of samples of blood and body fluids, without the opportunity for the source patient or patient’s representative to opt-out of the testing, shall be through the use of a pseudonym and in accordance with rules proposed by the department for approval by the Legislature in accordance with article three, chapter twenty-nine-a of this code; or
(3) The performance of an HIV-related test for the purpose of research if the testing is performed in a manner by which the identity of the test subject is not known and may not be retrieved by the researcher.
(h) Mandated testing:
(1) The performance of any HIV-related testing that is or becomes mandatory by court order or other legal process described herein does not require consent of the subject but will include counseling.
(2) The court having jurisdiction of the criminal prosecution shall order that an HIV-related test be performed on any persons charged with any of the following crimes or offenses:
(i) Prostitution; or
(ii) Sexual abuse, sexual assault, incest or sexual molestation.
(3) HIV-related tests performed on persons charged with prostitution, sexual abuse, sexual assault, incest or sexual molestation shall be confidentially administered by a designee of the bureau or the local or county health department having proper jurisdiction. The commissioner may designate health care providers in regional jail facilities to administer HIV-related tests on such persons if he or she determines it necessary and expedient.
(4) Costs associated with tests performed on persons charged with prostitution, sexual abuse, sexual assault, incest or sexual molestation may be charged to the defendant or juvenile respondent unless a court determines that the person charged with prostitution, sexual abuse, sexual assault, incest or sexual molestation is pecuniary unable to pay.
(A) If a person charged with prostitution, sexual abuse, sexual assault, incest or sexual molestation who is ordered to be tested is unable to pay, the cost of the HIV testing may be borne by the regional jail or other correctional or juvenile facility, the bureau or the local health department.
(B) If persons charged with prostitution, sexual abuse, sexual assault, incest or sexual molestation who is ordered to be tested has health insurance, the local health department or other providers performing the test may bill the health insurance of the person charged with prostitution, sexual abuse, sexual assault, incest or sexual molestation for the cost of the test.
(C) A person charged with prostitution, sexual abuse, sexual assault, incest or sexual molestation ordered to submit to a HIV-related test may not be permitted to remain anonymous and a local health department may administer and bill for the test.
(5) When the Commissioner of the Bureau of Public Health knows or has reason to believe, because of medical or epidemiological information, that a person, including, but not limited to, a person such as an IV drug abuser, or a person who may have a sexually transmitted disease, or a person who has sexually molested, abused or assaulted another, has HIV infection and is or may be a danger to the public health, he or she may issue an order to:
(i) Require a person to be examined and tested to determine whether the person has HIV infection;
(ii) Require a person with HIV infection to report to a qualified physician or health worker for counseling; and
(iii) Direct a person with HIV infection to cease and desist from specified conduct which endangers the health of others.
(6) If any person violates a cease and desist order issued pursuant to this section and, by virtue of that violation, the person presents a danger to the health of others, the commissioner shall apply to the circuit court of Kanawha County to enforce the cease and desist order by imposing any restrictions upon the person that are necessary to prevent the specific conduct that endangers the health of others.
(7) A person convicted of the offenses described in this section shall be required to undergo HIV-related testing and counseling immediately upon conviction and the court having jurisdiction of the criminal prosecution may not release the convicted person from custody and shall revoke any order admitting the defendant to bail until HIV-related testing and counseling have been performed and the result is known. The HIV-related test result obtained from the convicted person is to be transmitted to the court and, after the convicted person is sentenced, made part of the court record. If the convicted person is placed in the custody of the Division of Corrections, the court shall transmit a copy of the convicted person's HIV-related test results to the Division of Corrections. The HIV-related test results shall be closed and confidential and disclosed by the court and the bureau only in accordance with the provisions of section three of this article.
(8) The prosecuting attorney shall inform the victim, or parent or guardian of the victim, at the earliest stage of the proceedings of the availability of voluntary HIV-related testing and counseling conducted by the bureau and that his or her best health interest would be served by submitting to HIV-related testing and counseling. HIV-related testing for the victim shall be administered at his or her request on a confidential basis and shall be administered in accordance with the Centers for Disease Control and Prevention guidelines of the United States Public Health Service in effect at the time of such request. The victim who obtains an HIV-related test shall be provided with pre and post-test counseling regarding the nature, reliability and significance of the HIV-related test and the confidential nature of the test. HIV-related testing and counseling conducted pursuant to this subsection shall be performed by the designee of the commissioner of the bureau or by any local or county health department having proper jurisdiction.
(9) If a person receives counseling or is tested under this subsection and is found to be HIV infected and the person is not incarcerated, the person shall be referred by the health care provider performing the counseling or testing for appropriate medical care and support services. The local or county health departments or any other agency under this subsection may not be financially responsible for medical care and support services.
(10) The commissioner of the bureau or his or her designees may require a person to undergo an HIV or other sexually transmitted disease test if a person was possibly exposed to HIV or other sexually transmitted disease infected blood or other body fluids as a result of receiving or rendering emergency medical aid, providing funeral services or providing law-enforcement services. The commissioner of the bureau or his or her designees may use the results to determine the appropriate therapy, counseling and psychological support for the exposed person.
(11) If an HIV-related test required on persons convicted of prostitution, sexual abuse, sexual assault, incest or sexual molestation results in a negative reaction, upon motion of the state, the court having jurisdiction over the criminal prosecution may require the subject of the test to submit to further HIV-related tests performed under the direction of the bureau in accordance with the Centers for Disease Control and Prevention guidelines of the United States Public Health Service in effect at the time of the motion of the state.
(12) The costs of mandated testing and counseling provided under this subsection and pre and postconviction HIV-related testing and counseling provided the victim under the direction of the bureau pursuant to this subsection shall be paid by the by the individual to be tested or counseled or his or her medical insurance provider, if possible.
(13) The court having jurisdiction of the criminal prosecution shall order a person convicted of prostitution, sexual abuse, sexual assault, incest or sexual molestation to pay restitution to the state or the victim for the costs of any HIV-related testing and counseling provided the convicted person and the victim, unless the court has determined the convicted person to be indigent.
(14) Any funds recovered by the state as a result of an award of restitution under this subsection shall be paid into the State Treasury to the credit of a special revenue fund to be known as the HIV-testing Fund which is hereby created. The moneys so credited to the fund may be used solely by the bureau for the purposes of facilitating the performance of HIV-related testing and counseling under the provisions of this article.
(i) Nothing in this section is applicable to any insurer regulated under chapter thirty-three of this code: Provided, That the commissioner of insurance shall develop standards regarding consent for use by insurers which test for the presence of the HIV antibody.
(j) Whenever consent of the subject to the performance of HIV-related testing is required under this article, any such consent obtained, whether orally or in writing, shall be considered to be a valid and informed consent if it is given after compliance with the provisions of subsection (c) of this section.
As used in this article, unless the context otherwise indicates, the following terms have the following meanings:
(1) "Department" means the West Virginia Department of Health and Human Resources.
(2) "Expedited partner therapy" means prescribing, dispensing, furnishing or otherwise providing prescription antibiotic drugs to the sexual partner or partners of a person clinically diagnosed as infected with a sexually transmitted disease without physical examination of the partner or partners.
(3) "Health care professional" means:
(A) An allopathic physician licensed pursuant to article three, chapter thirty of this code;
(B) An osteopathic physician licensed pursuant to article fourteen, chapter thirty of this code;
(C) A physician assistant associate licensed pursuant to section four, article three-e, chapter thirty of this code;
(D) An advanced practice registered nurse authorized with prescriptive authority pursuant to section fifteen-a, article seven, chapter thirty of this code; or
(E) A pharmacist licensed pursuant to article five, chapter thirty of this code.
(4) "Sexually transmitted disease" means a disease that may be treated by expedited partner therapy as determined by rule of the department.
(a) A certificate of death for each death which occurs in this state shall be filed with the section of vital statistics, or as otherwise directed by the State Registrar, within five days after death, and prior to final disposition, and shall be registered if it has been completed and filed in accordance with this section.
(1) If the place of death is unknown, but the dead body is found in this state, the place where the body was found shall be shown as the place of death.
(2) If the date of death is unknown, it shall be approximated. If the date cannot be approximated, the date found shall be shown as the date of death.
(3) If death occurs in a moving conveyance in the United States and the body is first removed from the conveyance in this state, the death shall be registered in this state and the place where it is first removed shall be considered the place of death.
(4) If death occurs in a moving conveyance while in international waters or air space or in a foreign country or its air space and the body is first removed from the conveyance in this state, the death shall be registered in this state but the certificate shall show the actual place of death insofar as can be determined.
(5) In all other cases, the place where death is pronounced shall be considered the place where death occurred.
(b) The funeral director or other person who assumes custody of the dead body shall:
(1) Obtain the personal data from the next of kin or the best qualified person or source available including the deceased person’s social security number or numbers, which shall be placed in the records relating to the death and recorded on the certificate of death;
(2) Within forty-eight hours after death, provide the certificate of death containing sufficient information to identify the decedent to the physician nurse responsible for completing the medical certification as provided in subsection (c) of this section; and
(3) Upon receipt of the medical certification, file the certificate of death: Provided, That for implementation of electronic filing of death certificates, the person who certifies to cause of death will be responsible for filing the electronic certification of cause of death as directed by the State Registrar and in accordance with legislative rule.
(c) The medical certification shall be completed and signed within twenty-four hours after receipt of the certificate of death by the physician, physician assistant associate or advanced practice registered nurse in charge of the patient’s care for the illness or condition which resulted in death except when inquiry is required pursuant to chapter sixty-one, article twelve or other applicable provisions of this code.
(1) In the absence of the physician, physician assistant associate or advanced practice registered nurse or with his or her approval, the certificate may be completed by his or her associate physician, any physician who has been placed in a position of responsibility for any medical coverage of the decedent, the chief medical officer of the institution in which death occurred, or the physician who performed an autopsy upon the decedent, provided inquiry is not required pursuant to chapter sixty-one, article twelve of this code.
(2) The person completing the cause of death shall attest to its accuracy either by signature or by an approved electronic process.
(d) When inquiry is required pursuant to article twelve, chapter sixty-one or other applicable provisions of this code, the state Medical Examiner or designee or county medical examiner or county coroner in the jurisdiction where the death occurred or where the body was found shall determine the cause of death and shall complete the medical certification within forty-eight hours after taking charge of the case.
(1) If the cause of death cannot be determined within forty-eight hours after taking charge of the case, the medical examiner shall complete the medical certification with a "Pending" cause of death to be amended upon completion of medical investigation.
(2) After investigation of a report of death for which inquiry is required, if the state Medical Examiner or designee or county medical examiner or county coroner decline jurisdiction, the state Medical Examiner or designee or county medical examiner or county coroner may direct the decedent’s family physician or the physician who pronounces death to complete the certification of death: Provided, That the physician is not civilly liable for inaccuracy or other incorrect statement of death unless the physician willfully and knowingly provides information he or she knows to be false.
(e) When death occurs in an institution and the person responsible for the completion of the medical certification is not available to pronounce death, another physician may pronounce death. If there is no physician available to pronounce death, then a designated licensed health professional who views the body may pronounce death, attest to the pronouncement by signature or an approved electronic process and, with the permission of the person responsible for the medical certification, release the body to the funeral director or other person for final disposition: Provided, That if the death occurs in an institution during court-ordered hospitalization, in a correctional facility or under custody of law-enforcement authorities, the death shall be reported directly to a medical examiner or coroner for investigation, pronouncement and certification.
(f) If the cause of death cannot be determined within the time prescribed, the medical certification shall be completed as provided by legislative rule. The attending physician or medical examiner, upon request, shall give the funeral director or other person assuming custody of the body notice of the reason for the delay, and final disposition of the body may not be made until authorized by the attending physician, medical examiner or other persons authorized by this article to certify the cause of death.
(g) Upon receipt of autopsy results, additional scientific study, or where further inquiry or investigation provides additional information that would change the information on the certificate of death from that originally reported, the certifier or any State Medical Examiner who provides such inquiry under authority of article twelve, chapter sixty-one of this code shall immediately file a supplemental report of cause of death or other information with the section of vital statistics to amend the record, but only for purposes of accuracy.
(h) When death is presumed to have occurred within this state but the body cannot be located, a certificate of death may be prepared by the state Registrar only upon receipt of an order of a court of competent jurisdiction which shall include the finding of facts required to complete the certificate of death. The certificate of death will be marked "Presumptive" and will show on its face the date of death as determined by the court and the date of registration, and shall identify the court and the date of the order.
(i) The local registrar shall transmit each month to the county clerk of his or her county a copy of the certificates of all deaths occurring in the county, and if any person dies in a county other than the county within the state in which the person last resided prior to death, then the state Registrar shall furnish a copy of the death certificate to the clerk of the county commission of the county where the person last resided, from which copies the clerk shall compile a register of deaths, in a form prescribed by the state Registrar. The register shall be a public record.
(a) The Commissioner of the Bureau for Public Health may form a workgroup to conduct a study of adverse childhood experiences and their impact on the people of West Virginia. The workgroup may be comprised of the following members:
(1) The Commissioner of the Bureau of Children and Families, or his or her designee;
(2) The Dean of the West Virginia University School of Medicine, or his or her designee;
(3) The Dean of the Marshall University Joan C. Edwards School of Medicine, or his or her designee;
(4) The Dean of the West Virginia School of Osteopathic Medicine, or his or her designee;
(5) The Executive Director of the West Virginia Herbert Henderson Office of Minority Affairs, or his or her designee;
(6) The Director of the Office of Maternal, Child and Family Health, or his or her designee;
(7) Up to three representatives of primary care providers chosen by the West Virginia Primary Care Association;
(8) Up to three representatives of behavioral healthcare providers chosen by the West Virginia Behavioral Healthcare Providers Association;
(9) Up to two members chosen by the Adverse Childhood Experiences Coalition of West Virginia;
(10) One member chosen by the West Virginia Rural Health Association;
(11) One member chosen by the West Virginia Hospital Association;
(12) One member chosen by the West Virginia Nurses Association;
(13) One member chosen by the West Virginia Chapter of the American Academy of Pediatrics;
(14) One member chosen by the West Virginia State Medical Association;
(15) One member chosen by the West Virginia Osteopathic Medical Association;
(16) One member chosen by the West Virginia Academy of Family Physicians;
(17) One member chosen by the West Virginia Association of Physician Assistants Associates;
(18) One member chosen by the West Virginia Association of School Nurses;
(19) One member representing parents chosen by the West Virginia Circle of Parents Network;
(20) One member chosen by the West Virginia Foster, Adoptive and Kinship Network;
(21) The Commissioner of the Bureau for Behavioral Health, or his or her designee;
(22) One representative of the West Virginia Defending Childhood Initiative, commonly referred to as "Handle With Care," chosen by the West Virginia Children’s Justice Task Force;
(23) One member chosen by the West Virginia Chapter of the National Association for the Advancement of Colored People; and
(24) The West Virginia State Superintendent of Schools, or his or her designee.
(b) The Commissioner of the Bureau for Public Health may designate additional persons who may participate in the meetings of the workgroup: Provided, That any such person must be the administrative head of the office or division whose functions necessitate his or her inclusion in this process.
(c) The workgroup may develop recommended guidance, tools, and protocols for primary health care practitioners to undertake the following:
(1) Provide information to patients regarding the impact of adverse and positive childhood experiences on physical and mental health, and the risks and benefits of screening patients for adverse child experiences;
(2) Screen patients for adverse child experiences, childhood trauma, and positive childhood experiences that may impact a patient’s physical or mental health or the provision of health care services to the patient; and
(3) Within the context of a comprehensive systems approach, provide clinical response that medical providers should follow after screening, such as:
(A) Applying principles of trauma-informed care;
(B) Identification and treatment of adverse childhood experiences and associated health conditions;
(C) Patient education about toxic stress and buffering interventions, including supportive relationships, mental health treatment, exercise, sleep hygiene, healthy nutrition, and mindfulness and meditation practices;
(D) Validation of existing strengths and protective factors;
(E) Referral to patient resources which may include, but are not limited to, counseling and treatment programs, community-based medical and non-medical resources, and family support programs; and
(F) Follow-up as necessary.
(d) The workgroup may develop recommendations for education and training requirements to be completed for administering the screening process, trauma-informed care, and clinical response as described in this section.
(e) The Bureau for Public Health may provide staff for the workgroup. The workgroup may schedule one public hearing in each of the congressional districts in West Virginia as it relates to the screening protocols for adverse childhood experiences. The workgroup may develop and approve a final report by June 30, 2021, and a copy may be submitted to the Joint Committee on Government and Finance of the Legislature and the Governor. The workgroup will sunset on March 31, 2022.
(f) The Bureau for Public Health may develop screening protocols for adverse childhood experiences and make recommendations in a report to be submitted to the Governor no later than December 31, 2021: Provided, That prior to submission, the bureau may present its proposed screening protocols for adverse childhood experiences to the Legislative Oversight Committee on Health and Human Resources within 90 days after development of the drafts and prior to submission of the final protocols to the Governor. The Legislative Oversight Committee on Health and Human Resources shall have 90 days to review the standards and provide input to the bureau, which shall consider such input when developing the final standards for submission to the Governor. Upon submission to the Governor, the report may be distributed to all health care provider organizations in the state for consideration for adoption.
(g) Any screening protocols for adverse childhood experiences drafted pursuant to this section shall not become effective until on or after March 31, 2021.
"Chronic pain" means pain that has persisted after reasonable medical efforts have been made to relieve the pain or cure its cause and that has continued, either continuously or episodically, for longer than three continuous months. For purposes of this article, "chronic pain" does not include pain directly associated with a terminal condition.
"Director" means the Director of the Office of Health Facility Licensure and Certification within the Office of the Inspector General.
"Owner" means any person, partnership, association, or corporation listed as the owner of a pain management clinic on the licensing forms required by this article.
"Pain management clinic" means all privately-owned pain management clinics, facilities, or offices not otherwise exempted from this article and which meet both of the following criteria:
(1) Where in any month more than 50 percent of patients of the clinic are prescribed or dispensed Schedule II opioids or other Schedule II controlled substances specified in rules promulgated pursuant to this article for chronic pain resulting from conditions that are not terminal; and
(2) The facility meets any other identifying criteria established by the secretary by rule.
"Physician" means an individual authorized to practice medicine or surgery or osteopathic medicine or surgery in this state.
"Prescriber" means an individual who is authorized by law to prescribe drugs or drug therapy related devices in the course of the individual’s professional practice, including only a medical or osteopathic physician authorized to practice medicine or surgery; a physician assistant associate or osteopathic physician assistant associate who holds a certificate to prescribe drugs; or an advanced nurse practitioner who holds a certificate to prescribe.
"Secretary" means the Secretary of the West Virginia Department of Health and Human Resources. The secretary may define in rules any term or phrase used in this article which is not expressly defined.
(a) Any person, partnership, association or corporation that desires to operate a pain management clinic in this state must submit to the director documentation that the facility meets all of the following requirements:
(1) The clinic shall be licensed in this state with the secretary, the Secretary of State, the State Tax Department and all other applicable business or license entities.
(2) The application shall list all owners of the clinic. At least one owner shall be a physician actively licensed to practice medicine, surgery or osteopathic medicine or surgery in this state. The clinic shall notify the secretary of any change in ownership within ten days of the change and must submit a new application within the time frame prescribed by the secretary.
(3) Each pain management clinic shall designate a physician owner who shall practice at the clinic and who will be responsible for the operation of the clinic. Within ten days after termination of a designated physician, the clinic shall notify the director of the identity of another designated physician for that clinic. Failing to have a licensed designated physician practicing at the location of the clinic may be the basis for a suspension or revocation of the clinic license. The designated physician shall:
(A) Have a full, active and unencumbered license to practice medicine, surgery or osteopathic medicine or surgery in this state:
(B) Meet one of the following training requirements:
(i) Complete a pain medicine fellowship that is accredited by the Accreditation Council for Graduate Medical Education or such other similar program as may be approved by the secretary; or
(ii) Hold current board certification by the American Board of Pain Medicine or current board certification by the American Board of Anesthesiology or such other board certification as may be approved by the secretary.
(C) Practice at the licensed clinic location for which the physician has assumed responsibility;
(D) Be responsible for complying with all requirements related to the licensing and operation of the clinic;
(E) Supervise, control and direct the activities of each individual working or operating at the facility, including any employee, volunteer or individual under contract, who provides treatment of chronic pain at the clinic or is associated with the provision of that treatment. The supervision, control and direction shall be provided in accordance with rules promulgated by the secretary.
(4) All persons employed by the facility shall comply with the requirements for the operation of a pain management clinic established by this article or by any rule adopted pursuant to this article.
(5) No person may own or be employed by or associated with a pain management clinic who has previously been convicted of, or pleaded guilty to, any felony in this state or another state or territory of the United States. All owners, employees, volunteers or associates of the clinic shall undergo a criminal records check prior to operation of the clinic or engaging in any work, paid or otherwise. The application for license shall include copies of the background check for each anticipated owner, physician, employee, volunteer or associate. The secretary shall review the results of the criminal records check and may deny licensure for any violation of this requirement. The facility shall complete a criminal records check on any subsequent owner, physician, employee, volunteer or associate of the clinic and submit the results to the secretary for continued review.
(6) The clinic may not be owned by, nor may it employ or associate with, any physician or prescriber:
(A) Whose Drug Enforcement Administration number has ever been revoked;
(B) Whose application for a license to prescribe, dispense or administer a controlled substance has been denied by any jurisdiction; or
(C) Who, in any jurisdiction of this state or any other state or territory of the United States, has been convicted of or plead guilty or nolo contendere to an offense that constitutes a felony for receipt of illicit and diverted drugs, including controlled substances, as defined by section one hundred one, article one, chapter sixty-a of this code.
(7) A person may not dispense any medication, including a controlled substance, as defined by section one hundred one, article one, chapter sixty-a of this code, on the premises of a licensed pain management clinic unless he or she is a physician or pharmacist licensed in this state. Prior to dispensing or prescribing controlled substances, as defined by section one hundred one, article one, chapter sixty-a of this code, at a pain management clinic, the treating physician must access the Controlled Substances Monitoring Program database maintained by the Board of Pharmacy to ensure the patient is not seeking controlled substances from multiple sources. If the patient receives ongoing treatment, the physician shall also review the Controlled Substances Monitoring Program database at each patient examination or at least every ninety days. The results obtained from the Controlled Substances Monitoring Program database shall be maintained with the patient's medical records.
(8) Each clinic location shall be licensed separately, regardless of whether the clinic is operated under the same business name or management as another clinic.
(9) A pain management clinic shall not dispense to any patient more than a 72 hour supply of a controlled substance, as defined by section one hundred one, article one, chapter sixty-a of this code.
(10) The pain management clinic shall develop patient protocols, treatment plans and profiles, as prescribed by the secretary by rule, and which shall include, but not be limited by, the following guidelines:
(A) When a physician diagnoses an individual as having chronic pain, the physician may treat the pain by managing it with medications in amounts or combinations that may not be appropriate when treating other medical conditions. The physician's diagnosis shall be made after having the individual evaluated by one or more other physicians who specialize in the treatment of the area, system or organ of the body perceived as the source of the pain unless the individual has been previously diagnosed as suffering from chronic pain and is referred to the pain management clinic by such diagnosing physician. The physician's diagnosis and treatment decisions shall be made according to accepted and prevailing standards for medical care.
(B) The physician shall maintain a record of all of the following:
(i) Medical history and physical examination of the individual;
(ii) The diagnosis of chronic pain, including signs, symptoms and causes;
(iii) The plan of treatment proposed, the patient's response to the treatment and any modification to the plan of treatment;
(iv) The dates on which any medications were prescribed, dispensed or administered, the name and address of the individual to or for whom the medications were prescribed, dispensed or administered and the amounts and dosage forms for the drugs prescribed, dispensed or administered;
(v) A copy of the report made by the physician to whom referral for evaluation was made.
(C) A physician, physician assistant associate, certified registered nurse anesthetist or advanced nurse practitioner shall perform a physical examination of a patient on the same day that the physician initially prescribes, dispenses or administers a controlled substance to a patient and at least four times a year thereafter at a pain management clinic according to accepted and prevailing standards for medical care.
(D) A physician authorized to prescribe controlled substances who practices at a pain management clinic is responsible for maintaining the control and security of his or her prescription blanks and any other method used for prescribing controlled substance pain medication. The physician shall comply with all state and federal requirements for tamper-resistant prescription paper. In addition to any other requirements imposed by statute or rule, the physician shall notify the secretary in writing within 24 hours following any theft or loss of a prescription blank or breach of any other method for prescribing pain medication.
(c) Upon satisfaction that an applicant has met all of the requirements of this article, the secretary may issue a license to operate a pain management clinic. An entity that obtains this license may possess, have custody or control of, and dispense drugs designated as Schedule II or Schedule III in sections two hundred six or two hundred eight, article two, chapter sixty-a of this code.
(a) The medication-assisted treatment program shall be licensed and registered in this state with the secretary, the Secretary of State, the State Tax Department, and all other applicable business or licensing entities.
(b) The program sponsor need not be a licensed physician but shall employ a licensed physician for the position of medical director, when required by the rules promulgated pursuant to this article.
(c) Each medication-assisted treatment program shall designate a medical director. If the medication-assisted treatment program is accredited by a Substance Abuse and Mental Health Services Administration approved accrediting body that meets nationally accepted standards for providing medication-assisted treatment, including the Commission on Accreditation of Rehabilitation Facilities or the Joint Commission on Accreditation of Healthcare Organizations, then the program may designate a medical director to oversee all facilities associated with the accredited medication-assisted treatment program. The medical director shall be responsible for the operation of the medication-assisted treatment program, as further specified in the rules promulgated pursuant to this article. He or she may delegate the day-to-day operation of a medication-assisted treatment program as provided in rules promulgated pursuant to this article. Within 10 days after termination of a medical director, the medication-assisted treatment program shall notify the director of the identity of another medical director for that program. Failure to have a medical director practicing at the program may be the basis for a suspension or revocation of the program license. The medical director shall:
(1) Have a full, active, and unencumbered license to practice allopathic medicine or surgery from the West Virginia Board of Medicine or to practice osteopathic medicine or surgery from the West Virginia Board of Osteopathic Medicine in this state and be in good standing and not under any probationary restrictions;
(2) Meet both of the following training requirements:
(A) If the physician prescribes a partial opioid agonist, he or she shall complete the requirements for the Drug Addiction Treatment Act of 2000; and
(B) Complete other programs and continuing education requirements as further described in the rules promulgated pursuant to this article;
(3) Practice at the licensed or registered medication-assisted treatment program a sufficient number of hours, based upon the type of medication-assisted treatment license or registration issued pursuant to this article, to ensure regulatory compliance, and carry out those duties specifically assigned to the medical director as further described in the rules promulgated pursuant to this article;
(4) Be responsible for monitoring and ensuring compliance with all requirements related to the licensing and operation of the medication-assisted treatment program;
(5) Supervise, control, and direct the activities of each individual working or operating at the medication-assisted treatment program, including any employee, volunteer, or individual under contract, who provides medication-assisted treatment at the program or is associated with the provision of that treatment. The supervision, control, and direction shall be provided in accordance with rules promulgated by the secretary; and
(6) Complete other requirements prescribed by the secretary by rule.
(d) Each medication-assisted treatment program shall designate counseling staff, either employees, or those used on a referral-basis by the program, which meet the requirements of this article and the rules promulgated pursuant to this article. The individual members of the counseling staff shall have one or more of the following qualifications:
(1) Be a licensed psychiatrist;
(2) Certification as an alcohol and drug counselor;
(3) Certification as an advanced alcohol and drug counselor;
(4) Be a counselor, psychologist, marriage and family therapist, or social worker with a master’s level education with a specialty or specific training in treatment for substance use disorders, as further described in the rules promulgated pursuant to this article;
(5) Under the direct supervision of an advanced alcohol and drug counselor, be a counselor with a bachelor’s degree in social work or another relevant human services field: Provided, That the individual practicing with a bachelor’s degree under supervision applies for certification as an alcohol and drug counselor within three years of the date of employment as a counselor;
(6) Be a counselor with a graduate degree actively working toward licensure or certification in the individual’s chosen field under supervision of a licensed or certified professional in that field and/or advanced alcohol and drug counselor;
(7) Be a psych-mental health nurse practitioner or a psych-mental health clinical nurse specialist; or
(8) Be a psychiatry CAQ-certified physician assistant associate.
(e) The medication-assisted treatment program shall be eligible for, and not prohibited from, enrollment with West Virginia Medicaid and other private insurance. Prior to directly billing a patient for any medication-assisted treatment, a medication-assisted treatment program must receive either a rejection of prior authorization, rejection of a submitted claim, or a written denial from a patient’s insurer or West Virginia Medicaid denying coverage for such treatment: Provided, That the secretary may grant a variance from this requirement pursuant to §15-5Y-6 of this code. The program shall also document whether a patient has no insurance. At the option of the medication-assisted treatment program, treatment may commence prior to billing.
(f) The medication-assisted treatment program shall apply for and receive approval as required from the United States Drug Enforcement Administration, Center for Substance Abuse Treatment, or an organization designated by Substance Abuse and Mental Health and Mental Health Administration.
(g) All persons employed by the medication-assisted treatment program shall comply with the requirements for the operation of a medication-assisted treatment program established within this article or by any rule adopted pursuant to this article.
(h) All employees of an opioid treatment program shall furnish fingerprints for a state and federal criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation. The fingerprints shall be accompanied by a signed authorization for the release of information and retention of the fingerprints by the Criminal Identification Bureau and the Federal Bureau of Investigation. The opioid treatment program shall be subject to the provisions of §16-49-1 et seq. of this code and subsequent rules promulgated thereunder.
(i) The medication-assisted treatment program shall not be owned by, nor shall it employ or associate with, any physician or prescriber:
(1) Whose Drug Enforcement Administration number is not currently full, active, and unencumbered;
(2) Whose application for a license to prescribe, dispense, or administer a controlled substance has been denied by and is not full, active, and unencumbered in any jurisdiction; or
(3) Whose license is anything other than a full, active, and unencumbered license to practice allopathic medicine or surgery by the West Virginia Board of Medicine or osteopathic medicine or surgery by the West Virginia Board of Osteopathic Medicine in this state, and who is in good standing and not under any probationary restrictions.
(j) A person may not dispense any medication-assisted treatment medication, including a controlled substance as defined by §60A-1-101 of this code, on the premises of a licensed medication-assisted treatment program, unless he or she is a physician or pharmacist licensed in this state and employed by the medication-assisted treatment program unless the medication-assisted treatment program is a federally certified narcotic treatment program. Prior to dispensing or prescribing medication-assisted treatment medications, the treating physician must access the Controlled Substances Monitoring Program Database to ensure the patient is not seeking medication-assisted treatment medications that are controlled substances from multiple sources and to assess potential adverse drug interactions, or both. Prior to dispensing or prescribing medication-assisted treatment medications, the treating physician shall also ensure that the medication-assisted treatment medication utilized is related to an appropriate diagnosis of a substance use disorder and approved for such usage. The physician shall also review the Controlled Substances Monitoring Program Database no less than quarterly and at each patient’s physical examination. The results obtained from the Controlled Substances Monitoring Program Database shall be maintained with the patient’s medical records.
(k) A medication-assisted treatment program responsible for medication administration shall comply with:
(1) The West Virginia Board of Pharmacy regulations;
(2) The West Virginia Board of Examiners for Registered Professional Nurses regulations;
(3) All applicable federal laws and regulations relating to controlled substances; and
(4) Any requirements as specified in the rules promulgated pursuant to this article.
(l) Each medication-assisted treatment program location shall be licensed separately, regardless of whether the program is operated under the same business name or management as another program.
(m) The medication-assisted treatment program shall develop and implement patient protocols, treatment plans, or treatment strategies and profiles, which shall include, but not be limited by, the following guidelines:
(1) When a physician diagnoses an individual as having a substance use disorder, the physician may treat the substance use disorder by managing it with medication in doses not exceeding those approved by the United States Food and Drug Administration as indicated for the treatment of substance use disorders and not greater than those amounts described in the rules promulgated pursuant to this article. The treating physician and treating counselor’s diagnoses and treatment decisions shall be made according to accepted and prevailing standards for medical care;
(2) The medication-assisted treatment program shall maintain a record of all of the following:
(A) Medical history and physical examination of the individual;
(B) The diagnosis of substance use disorder of the individual;
(C) The plan of treatment proposed, the patient’s response to the treatment, and any modification to the plan of treatment;
(D) The dates on which any medications were prescribed, dispensed, or administered, the name and address of the individual for whom the medications were prescribed, dispensed, or administered, and the amounts and dosage forms for any medications prescribed, dispensed, or administered;
(E) A copy of the report made by the physician or counselor to whom referral for evaluation was made, if applicable; and
(F) A copy of the coordination of care agreement, which is to be signed by the patient, treating physician, and treating counselor. If a change of treating physician or treating counselor takes place, a new agreement must be signed. The coordination of care agreement must be updated or reviewed at least annually. If the coordination of care agreement is reviewed, but not updated, this review must be documented in the patient’s record. The coordination of care agreement will be provided in a form prescribed and made available by the secretary;
(3) Medication-assisted treatment programs shall report information, data, statistics, and other information as directed in this code, and the rules promulgated pursuant to this article to required agencies and other authorities;
(4) A prescriber authorized to prescribe a medication-assisted treatment medication who practices at a medication-assisted treatment program is responsible for maintaining the control and security of his or her prescription blanks and any other method used for prescribing a medication-assisted treatment medication. The prescriber shall comply with all state and federal requirements for tamper-resistant prescription paper. In addition to any other requirements imposed by statute or rule, the prescriber shall notify the secretary and appropriate law-enforcement agencies in writing within 24 hours following any theft or loss of a prescription blank or breach of any other method of prescribing a medication-assisted treatment medication; and
(5) The medication-assisted treatment program shall have a drug testing program to ensure a patient is in compliance with the treatment strategy.
(n) Medication-assisted treatment programs shall only prescribe, dispense, or administer liquid methadone to patients pursuant to the restrictions and requirements of the rules promulgated pursuant to this article.
(o) The medication-assisted treatment program shall immediately notify the secretary, or his or her designee, in writing of any changes to its operations that affect the medication-assisted treatment program’s continued compliance with the certification and licensure requirements.
(p) If a physician treats a patient with more than 16 milligrams per day of buprenorphine then clear medical notes shall be placed in the patient’s medical file indicating the clinical reason or reasons for the higher level of dosage.
(q) If a physician is not the patient’s obstetrical or gynecological provider, the physician shall consult with the patient’s obstetrical or gynecological provider to the extent possible to determine whether the prescription is appropriate for the patient.
(r) A practitioner providing medication-assisted treatment may perform certain aspects of telehealth if permitted under his or her scope of practice.
(s) The physician shall follow the recommended manufacturer’s tapering schedule for the medication-assisted treatment medication. If the schedule is not followed, the physician shall document in the patient’s medical record and the clinical reason why the schedule was not followed. The secretary may investigate a medication-assisted treatment program if a high percentage of its patients are not following the recommended tapering schedule.
(a) West Virginia University may collect data on the incidence of Parkinson’s disease in West Virginia and other epidemiological data as required by this article.
(b) These terms are defined:
"Parkinson’s disease" means a chronic and progressive neurologic disorder resulting from deficiency of the neurotransmitter dopamine as the consequence of specific degenerative changes in the area of the brain called the basal ganglia. It is characterized by tremor at rest, slow movements, muscle rigidity, stooped posture, and unsteady or shuffling gait.
"Parkinsonisms" means related conditions that cause a combination of the movement abnormalities seen in Parkinson’s disease, such as tremor at rest, slow movement, muscle rigidity, impaired speech or muscle stiffness, which often overlap with and can evolve from what appears to be Parkinson’s disease. These include: Multiple System Atrophy (MSA), Dementia with Lewy Bodies (DLB), Corticobasal Degeneration (CBD), and Progressive Supranuclear Palsy (PSP).
(c) The registry and system of collection and dissemination of information shall be under the direction of West Virginia University, who may enter into contracts, grants, or other agreements as are necessary for the conduct of the program.
(d) All patients diagnosed with Parkinson’s disease or related Parkinsonisms, as advised by an Advisory Committee, shall be provided a notice regarding the collection of information and patient data on Parkinson’s disease. Patients who do not wish to participate in the collection of data for purposes of research in this registry shall affirmatively opt-out in writing after an opportunity to review the documents and ask questions. A patient may not be forced to participate in this registry.
(e) (1) West Virginia University shall establish a Parkinson’s Disease Registry Advisory Committee to:
(A) Assist in the development and implementation of the registry which may include a system for the collection and dissemination of information determining the incidence and prevalence of Parkinson’s disease and related Parkinsonisms;
(B) Determine what data shall be collected; and
(C) Generally, advise WVU.
(2) Membership of the committee may include:
(A) Neurologists from WVU, Marshall, and Charleston Area Medical Center;
(B) A movement disorder specialist;
(C) A primary care physician;
(D) A physician informaticist;
(E) Parkinson’s disease patients;
(F) Public health staff;
(G) Population health researchers familiar with registries;
(H) Parkinson’s disease researchers; and
(I) Anyone else West Virginia University deems necessary.
(f) Parkinson’s disease and related Parkinsonisms shall be reported, but the mere incidence of a patient with Parkinson’s shall be the sole required information for this registry for any patient who chooses not to participate. For the subset of patients who choose not to participate, further data may not be reported to the registry.
(g) A hospital, facility, physician, surgeon, physician assistant associate, and nurse practitioners, or other health care provider deemed necessary by West Virginia University diagnosing or providing treatment to Parkinson’s disease or Parkinsonism patients, shall report each case of Parkinson’s disease and Parkinsonisms to West Virginia University in a format prescribed by the university. West Virginia University may enter into data sharing contracts with data reporting entities and their associated electronic medical record systems vendors to securely and confidentially receive information related to Parkinson’s disease testing, diagnosis, and treatment.
(h) West Virginia University may enter into agreements to furnish data collected in this registry to other states’ Parkinson’s disease registries, federal Parkinson’s disease control agencies, local health officers, or health researchers for the study of Parkinson’s disease. Before confidential information is disclosed to those agencies, officers, researchers, or out-of-state registries, the requesting entity shall agree in writing to maintain the confidentiality of the information, and in the case of researchers, shall also do both of the following:
(1) Obtain approval of their committee for the protection of human subjects established in accordance with Part 46 (commencing with Section 46.101) of Title 45 of the Code of Federal Regulations; and
(2) Provide documentation to West Virginia University that demonstrates to the university’s satisfaction that the entity has established the procedures and ability to maintain the confidentiality of the information.
(i) Except as otherwise provided in this section, all information collected pursuant to this section shall be confidential. For purposes of this section, this information shall be referred to as confidential information.
(j) Notwithstanding any other law, a disclosure authorized by this section shall include only the information necessary for the stated purpose of the requested disclosure, used for the approved purpose, and not be further disclosed.
(k) Provided the security of confidentiality has been documented, the furnishing of confidential information to West Virginia University or its authorized representative in accordance with this section shall not expose any person, agency, or entity furnishing information to liability, and shall not be considered a waiver of any privilege or a violation of a confidential relationship.
(l) West Virginia University shall maintain an accurate record of all persons who are given access to confidential information. The record shall include the name of the person authorizing access; name, title, address, and organizational affiliation of persons given access; dates of access; and, the specific purpose for which information is to be used. The record of access shall be open to public inspection during normal operating hours of the university.
(m) Notwithstanding any other law, the confidential information shall not be available for subpoena, shall not be disclosed, discoverable, or compelled to be produced in any civil, criminal, administrative, or other proceeding. The confidential information shall not be deemed admissible as evidence in any civil, criminal, administrative, or other tribunal or court for any reason. This subsection does not prohibit the publication by West Virginia University of reports and statistical compilations that do not in any way identify individual cases or individual sources of information. Notwithstanding the restrictions in this subsection, the individual to whom the information pertains shall have access to his or her own information.
(n) This section does not preempt the authority of facilities or individuals providing diagnostic or treatment services to patients with Parkinson’s disease to maintain their own facility-based Parkinson’s disease registries
An authority shall have power to issue bonds from time to time, in its discretion, for any of its corporate purposes. An authority shall also have power to issue or exchange refunding bonds for the purpose of paying, retiring, extending or renewing bonds previously issued by it. An authority may issue such types of bonds as it may determine, including without limiting the generality of the foregoing, bonds on which the principal and interest are payable from income and revenues of the authority and from grants or contributions from the federal government or other source. Such income and revenues securing the bonds may be: Exclusively the income and revenues of the housing developments financed, in whole or in part, with the proceeds of such bonds; exclusively the income and revenues of certain designated housing developments, whether or not they are financed, in whole or in part, with the proceeds of such bonds; or the income and revenues of the authority generally. Any such bonds may be additionally secured by a pledge of any income or revenues of the authority, or a mortgage of any housing development, developments or other property of the authority.
As used in this article:
"Adult" means an individual who is at least 18 years of age.
"Agent" means an individual:
(1) Authorized by a medical power of attorney to make health care decisions on behalf of a prospective donor; or
(2) Expressly authorized by any other record signed by the donor to make an anatomical gift on his or her behalf.
"Anatomical gift" means a donation of all or part of a human body, to take effect after the donor’s death, for the purpose of transplantation, therapy, research, or education.
"Authorized person" means a person other than the donor who is authorized to make an anatomical gift of the donor’s body or part by §16-19-4 or §16-19-9 of this code.
"Certification of death" means a written pronouncement of death by an attending physician. Certification is required before an attending physician can allow removal of any part from the decedent’s body for transplant purposes.
"Decedent" means a deceased individual whose body is or may be the source of an anatomical gift. The term "decedent" includes a stillborn infant and, subject to restrictions imposed by law other than this article, a fetus.
"Disinterested witness" means a witness other than the spouse, child, parent, sibling, grandchild, grandparent, or guardian of, or another adult who exhibited special care and concern for, an individual who has made, amended, revoked, or refused to make an anatomical gift. The term "disinterested witness" does not include a person to whom an anatomical gift may pass pursuant to §16-19-11 of this code.
"Document of gift" means a donor card or other record used to make an anatomical gift. The term includes a statement or symbol on a driver’s license, identification card, hunting or fishing license, or donor registry.
"Donor" means an individual whose body or part is the subject of an anatomical gift.
"Donor registry" means a database that contains records of anatomical gifts and amendments to, or revocations, of anatomical gifts.
"Driver’s license" means a license or permit issued by the Division of Motor Vehicles to operate a vehicle.
"Eye bank" means a person licensed, accredited, or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage, or distribution of human eyes or portions of human eyes.
"Guardian" means a person appointed by a court to make decisions regarding the support, care, education, health, or welfare of an individual. The term "guardian" does not include guardian ad litem.
"Hunting or fishing license" means a license issued by the Division of Natural Resources pursuant to §20-2-1 et seq. of this code, for hunting and fishing in the state of West Virginia.
"Hospital" means a facility licensed as a hospital under the law of any state or a facility operated as a hospital by the United States, a state, or a subdivision of a state.
"Identification card" means an identification card issued by the Division of Motor Vehicles pursuant to §17B-2-1 of this code.
"Know" means to have actual knowledge. It does not include constructive notice and other forms of imputed knowledge.
"Medical examiner" means an individual appointed pursuant to §61-12-3 et seq. of this code to perform death investigations and to establish the cause and manner of death. The term "medical examiner" includes any person designated by the medical examiner to perform any duties required by this article.
"Minor" means an individual who is under 18 years of age.
"Organ procurement organization" means a nonprofit entity designated by the Secretary of the United States Department of Health and Human Services as an organ procurement organization pursuant to 42 U.S.C. §273(b).
"Parent" means another person’s natural or adoptive mother or father whose parental rights have not been terminated by a court of law.
"Part" means an organ, an eye, or tissue of a human being. The term does not include the whole body.
"Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
"Physician" means an individual authorized to practice medicine or osteopathy under the law of any state.
"Physician assistant associate" has the meaning provided in §30-3E-1 of this code.
"Procurement organization" means an eye bank, organ procurement organization, or tissue bank.
"Prospective donor" means an individual who is dead or near death and has been determined by a procurement organization to have a part that could be medically suitable for transplantation, therapy, research, or education. The term "prospective donor" does not include an individual who has made a refusal.
"Reasonably available" means able to be contacted by a procurement organization without undue effort and willing and able to act in a timely manner consistent with existing medical criteria necessary for the making of an anatomical gift.
"Recipient" means an individual into whose body a decedent’s part has been or is intended to be transplanted.
"Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
"Revocation" means the affirmative declaration of the potential donor’s withdrawal of their decision to make or not make a document of gift. It does not have the same meaning as a refusal but only establishes that the potential donor chooses not to make an affirmative declaration of their wishes.
"Refusal" means a record created under §16-19-7 of this code that expressly states an individual’s intent to bar other persons from making an anatomical gift of his or her body or part.
"Sign" means to execute or adopt a tangible symbol or attach to or logically associate with the record an electronic symbol, sound or process, with the present intent to authenticate or adopt a record.
"State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
"Surrogate" means an individual 18 years of age or older who is reasonably available, is willing to make health care decisions on behalf of an incapacitated person, possesses the capacity to make health care decisions, and is identified or selected by the attending physician or advanced nurse practitioner in accordance with §16-30-1 et seq. of this code as the person who is to make those decisions in accordance with the provisions of this article.
"Technician" means an individual qualified to remove or process parts by an organization that is licensed, accredited, or regulated under federal or state law. The term "technician" includes an enucleator, i.e., an individual who removes or processes eyes or parts of eyes.
"Tissue" means a portion of the human body other than an organ or an eye. The term "tissue" does not include blood unless the blood is donated for the purpose of research or education.
"Tissue bank" means a person that is licensed, accredited, or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage, or distribution of tissue.
"Transplant hospital" means a hospital that furnishes organ transplants and other medical and surgical specialty services required for the care of transplant patients.
(a) When a hospital refers an individual at or near death to a procurement organization, the organization shall make a reasonable search of the records of the Division of Motor Vehicles and any donor registry it knows of for the geographical area in which the individual resides to ascertain whether the individual has made an anatomical gift.
(b) The Division of Motor Vehicles shall allow a procurement organization reasonable access to information in the division’s records to ascertain whether an individual at or near death is a donor. The Commissioner of the Division of Motor Vehicles shall propose legislative rules for promulgation pursuant to §29A-3-1 et seq. of this code to facilitate procurement agencies’ access to records pursuant to this subsection.
(c) When a hospital refers an individual at or near death to a procurement organization, the organization may conduct any reasonable examination necessary to ensure the medical suitability of a part that is or could be the subject of an anatomical gift for transplantation, therapy, research, or education from a donor or a prospective donor. During the examination period, measures necessary to ensure the medical suitability of the part may not be withdrawn unless the hospital or procurement organization knows that the prospective donor expressed a contrary intent.
(d) Unless prohibited by law, at any time after a donor’s death, a person to whom a decedent’s part passes under §16-19-11 of this code may conduct any reasonable examination necessary to ensure the medical suitability of the body or part for its intended purpose.
(e) Unless prohibited by law, an examination under subsection (c) or (d) of this section may include an examination of all medical and dental records of the donor or prospective donor.
(f) Upon the death of a minor who was a donor or had signed a refusal, unless a procurement organization knows the minor is emancipated, the procurement organization shall conduct a reasonable search for the parents of the minor and provide the parents with an opportunity to revoke or amend the anatomical gift or revoke the refusal.
(g) Upon referral by a hospital under subsection (a) of this section, a procurement organization shall make a reasonable search for any person listed in §16-19-9 of this code having priority to make an anatomical gift on behalf of a prospective donor. If a procurement organization receives information that an anatomical gift to any other person was made, amended, or revoked, it shall promptly advise the other person of all relevant information.
(h) Except as provided in §16-19-22 of this code, the rights of the person to whom a part passes under §16-19-11 of this code are superior to the rights of all others. A person may accept or reject an anatomical gift, in whole or in part. Subject to the terms of the document of gift and this article, a person that accepts an anatomical gift of an entire body may allow embalming, burial, or cremation, and use of remains in a funeral service. If the gift is of a part, the person to whom the part passes under §16-19-11 of this code shall, upon the death of the donor and before embalming, burial, or cremation, cause the part to be removed without unnecessary mutilation.
(i) Neither the physician or the physician assistant associate who attends the decedent at death, nor the physician or the physician assistant associate who determines the time of death, may participate in the procedures for removing or transplanting a part from the decedent.
(j) A physician or technician may remove a donated part from the body of a donor that the physician or technician is qualified to remove.
(k) A medical examiner shall cooperate with any procurement organization to maximize the opportunity to recover anatomical gifts for the purpose of transplantation, therapy, research, or education.
(l) A part may not be removed from the body of a decedent under a medical examiner’s jurisdiction for transplantation, therapy, research, or education, nor delivered to a person for research or education, unless the part is the subject of an anatomical gift.
(m) Upon the request of a procurement organization, the medical examiner shall release to the procurement organization the name, contact information, name of the next of kin, and available medical and social history of a decedent whose body is under the medical examiner’s jurisdiction. If the decedent’s body or part is medically suitable for transplantation, therapy, research, or education, the medical examiner shall release the post-mortem examination results to the procurement organization. The procurement organization may not make a subsequent disclosure of the post-mortem examination results or other information received from the medical examiner unless the subsequent disclosure is relevant to transplantation, therapy, research, or education.
(n) If a hospital refers an individual whose death is imminent or who has died in a hospital to an organ procurement organization, and the organ procurement organization, in consultation with the individual’s attending physician or a designee, determines based upon a medical record review and other information supplied by the individual’s attending physician or a designee, that the individual may be a prospective donor; and the individual:
(1) Has not indicated in any document an intention to either limit the anatomical gifts of the individual to parts of the body which do not require a ventilator or other life-sustaining measures, or
(2) Has not indicated in any document an intention to deny making or refusing to make an anatomical gift; or
(3) Amended or revoked an anatomical gift in any document, the organ procurement organization may conduct a blood or tissue test or minimally invasive examination which is reasonably necessary to evaluate the medical suitability of a body part that is or may be the subject of an anatomical gift.
(o) Testing and examination conducted pursuant to subsection (n) shall comply with a denial or refusal to make an anatomical gift or any limitation expressed by the individual with respect to the part of the body to donate or a limitation the provision of a ventilator or other life-sustaining measures, or a revocation or amendment to an anatomical gift. The results of tests and examinations conducted pursuant to subsection (n) shall be used or disclosed only:
(1) To evaluate medical suitability for donation and to facilitate the donation process; and
(2) As otherwise required or permitted by law.
(p) A hospital may not withdraw or withhold any measures necessary to maintain the medical suitability of a body part that may be the subject of an anatomical gift until the organ procurement organization or designated requestor, as appropriate, has had the opportunity to advise the applicable persons under this article of the option to make an anatomical gift and has received or been denied authorization to proceed with recovery of the part.
(q) Subject to the individual’s wishes under §16-19-11(c)(3) of this code, after an individual’s death, persons who may receive anatomical gift pursuant to §16-19-11 of this code may conduct any test or examination reasonably necessary to evaluate the medical suitability of the body or part for its intended purpose.
(r) The provisions of this section may not be construed to preclude a medical examiner from performing an investigation of a decedent under the medical examiner’s jurisdiction.
For the purposes of this article:
"Actual knowledge" means the possession of information of the person’s wishes communicated to the health care provider orally or in writing by the person, the person’s medical power of attorney representative, the person’s health care surrogate, or other individuals resulting in the health care provider’s personal cognizance of these wishes. Constructive notice and other forms of imputed knowledge are not actual knowledge.
"Adult" means a person who is 18 years of age or older, an emancipated minor who has been established as such pursuant to the provisions of §49-4-115 of this code, or a mature minor.
"Advanced nurse practitioner" means a registered nurse with substantial theoretical knowledge in a specialized area of nursing practice and proficient clinical utilization of the knowledge in implementing the nursing process, and who has met the further requirements of the West Virginia Board of Examiners for Registered Professional Nurses rule, advanced practice registered nurse, 19 CSR 7, who has a mutually agreed upon association in writing with a physician, and has been selected by or assigned to the person and has primary responsibility for treatment and care of the person.
"Attending physician" means the physician selected by or assigned to the person who has primary responsibility for treatment and care of the person and who is a licensed physician. If more than one physician shares that responsibility, any of those physicians may act as the attending physician under this article.
"Capable adult" means an adult who is physically and mentally capable of making health care decisions and who is not considered a protected person pursuant to Chapter 44A of this code.
"Close friend" means any adult who has exhibited significant care and concern for an incapacitated person who is willing and able to become involved in the incapacitated person’s health care and who has maintained regular contact with the incapacitated person so as to be familiar with his or her activities, health, and religious and moral beliefs.
"Death" means a finding made in accordance with accepted medical standards of either: (1) The irreversible cessation of circulatory and respiratory functions; or (2) the irreversible cessation of all functions of the entire brain, including the brain stem.
"Guardian" means a person appointed by a court pursuant to chapter 44A of this code who is responsible for the personal affairs of a protected person and includes a limited guardian or a temporary guardian.
"Health care decision" means a decision to give, withhold, or withdraw informed consent to any type of health care, including, but not limited to, medical and surgical treatments, including life-prolonging interventions, psychiatric treatment, nursing care, hospitalization, treatment in a nursing home or other facility, home health care, and organ or tissue donation.
"Health care facility" means a facility commonly known by a wide variety of titles, including, but not limited to, hospital, psychiatric hospital, medical center, ambulatory health care facility, physicians’ office and clinic, extended care facility operated in connection with a hospital, nursing home, a hospital extended care facility operated in connection with a rehabilitation center, hospice, home health care, or other facility established to administer health care in its ordinary course of business or practice.
"Health care provider" means any licensed physician, dentist, nurse, physician assistant associate, paramedic, psychologist, or other person providing medical, dental, nursing, psychological, or other health care services of any kind.
"Incapacity" means the inability because of physical or mental impairment to appreciate the nature and implications of a health care decision, to make an informed choice regarding the alternatives presented, and to communicate that choice in an unambiguous manner.
"Life-prolonging intervention" means any medical procedure or intervention that, when applied to a person, would serve to artificially prolong the dying process. Life-prolonging intervention includes, among other things, nutrition and hydration administered intravenously or through a feeding tube. The term "life-prolonging intervention" does not include the administration of medication or the performance of any other medical procedure considered necessary to provide comfort or to alleviate pain.
"Living will" means a written, witnessed advance directive governing the withholding or withdrawing of life-prolonging intervention, voluntarily executed by a person in accordance with the requirements of §16-30-4 of this code.
"Mature minor" means a person, less than 18 years of age, who has been determined by a qualified physician, a qualified psychologist, or an advanced nurse practitioner to have the capacity to make health care decisions.
"Medical information" or "medical records" means and includes without restriction any information recorded in any form of medium that is created or received by a health care provider, health care facility, health plan, public health authority, employer, life insurer, school, or university or health care clearinghouse that relates to the past, present, or future physical or mental health of the person, the provision of health care to the person, or the past, present, or future payment for the provision of health care to the person.
"Medical power of attorney representative" or "representative" means a person, 18 years of age or older, appointed by another person to make health care decisions pursuant to §16-30-6 of this code or similar act of another state and recognized as valid under the laws of this state.
"Parent" means a person who is another person’s natural or adoptive mother or father or who has been granted parental rights by valid court order and whose parental rights have not been terminated by a court of law.
"Person" means an individual, corporation, business trust, trust, partnership, association, government, governmental subdivision or agency, or any other legal entity.
"Portable orders for scope of treatment (POST) form" means a standardized form containing orders by a qualified physician, an advanced practice registered nurse, or a physician assistant associate that details a person’s life-sustaining wishes as provided by §16-30-25 of this code.
"Principal" means a person who has executed a living will, medical power of attorney, or combined medical power of attorney and living will.
"Protected person" means an adult who, pursuant to chapter 44A of this code, has been found by a court, because of mental impairment, to be unable to receive and evaluate information effectively or to respond to people, events, and environments to an extent that the individual lacks the capacity to: (1) Meet the essential requirements for his or her health, care, safety, habilitation, or therapeutic needs without the assistance or protection of a guardian; or (2) manage property or financial affairs to provide for his or her support or for the support of legal dependents without the assistance or protection of a conservator.
"Qualified physician" means a physician licensed to practice medicine who has personally examined the person.
"Qualified psychologist" means a psychologist licensed to practice psychology who has personally examined the person.
"Surrogate decision-maker" or "surrogate" means an individual 18 years of age or older who is reasonably available, to make health care decisions on behalf of an incapacitated person, possesses the capacity to make health care decisions, and is identified or selected by the attending physician or advanced nurse practitioner in accordance with the provisions of this article as the person who is to make those decisions in accordance with the provisions of this article.
"Terminal condition" means an incurable or irreversible condition as diagnosed by the attending physician or a qualified physician for which the administration of life-prolonging intervention will serve only to prolong the dying process.
(a) The secretary of the Department of Health and Human Resources shall implement the statewide distribution of standardized portable orders for scope of treatment (POST) forms.
(b) Portable orders for scope of treatment forms shall be standardized forms used to reflect orders by a qualified physician, an advanced practice registered nurse, or a physician assistant associate for medical treatment of a person in accordance with that person’s wishes or, if that person’s wishes are not reasonably known and cannot with reasonable diligence be ascertained, in accordance with that person’s best interest. The form shall be bright pink in color to facilitate recognition by emergency medical services personnel and other health care providers and shall be designed to provide for information regarding the care of the patient, including, but not limited to, the following:
(1) The orders of a qualified physician, an advanced practice registered nurse, or a physician assistant associate regarding cardiopulmonary resuscitation, level of medical intervention in the event of a medical emergency, use of antibiotics, and use of medically administered fluids and nutrition and the basis for the orders;
(2) The signature of the qualified physician, an advanced practice registered nurse, or a physician assistant associate;
(3) Whether the person has completed an advance directive or had a guardian, medical power of attorney representative, or surrogate appointed;
(4) The signature of the person or his or her guardian, medical power of attorney representative, or surrogate acknowledging agreement with the orders of the qualified physician, an advanced practice registered nurse, or a physician assistant associate; and
(5) The date, location, and outcome of any review of the portable orders for scope of treatment form.
(c) The portable orders for scope of treatment form shall be kept as the first page in a person’s medical record in a health care facility unless otherwise specified in the health care facility’s policies and procedures and shall be transferred with the person from one health care facility to another.
For purposes of this article, the following words and phrases have the following meanings:
"Appropriate authority" means a federal, state, county, or municipal government body, agency or organization having jurisdiction over criminal law enforcement, regulatory violations, professional conduct or ethics, or waste or any member, officer, agent, representative, or supervisory employee thereof;
"Clergy" means an ordained clergy, such as a rabbi, priest, Islamic cleric, associate pastor, licensed minister, or lay minister serving under the direction of the congregation such as the Roman Catholic Eucharistic ministers;
"Commissioner" means the commissioner of the division of health;
"Direct patient care" means health care that provides for the physical, diagnostic, emotional, or rehabilitational needs of a patient or health care that involves examination, treatment, or preparation for diagnostic tests or procedures.
"Discrimination or retaliation" includes any threat, intimidation, discharge, or any adverse change in a health care worker’s position, location, compensation, benefits, privileges, or terms or conditions of employment that occurs as a result of a health care worker engaging in any action protected by this article.
"Good faith report" means a report of conduct defined in this article as wrongdoing or waste that is made without malice or consideration of personal benefit and which the person making the report has reasonable cause to believe is true.
"Health care entity" includes a health care facility, such as a hospital, clinic, nursing facility, or other provider of health care services.
"Health care facility" means:
(1) A hospital licensed pursuant to §16-5B-1 et seq. of this code;
(2) A nursing home licensed pursuant to §16-5C-1 et seq. of this code;
(3) An assisted living residence licensed pursuant to §16-5D-1 et seq. of this code; and
(4) Hospice licensed pursuant to §16-5I-1 et seq. of this code.
"Health care worker" means a person who provides direct patient care to patients of a health care entity and who is an employee of the health care entity, a subcontractor, or independent contractor for the health care entity, or an employee of the subcontractor or independent contractor. The term includes, but is not limited to, a nurse, nurse’s aide, laboratory technician, physician, intern, resident, physician assistant associate, physical therapist, or any other person who provides direct patient care.
"Patient" means a person living or receiving services as an inpatient at a healthcare facility.
"Public Health State of Emergency" means a federal or state declaration of a state of emergency arising from or relating to a public health crisis.
"Visitor" means any visitor from the patient’s family, or hospice visiting a patient in a healthcare facility.
"Waste" means the conduct, act, or omission by a health care entity that results in substantial abuse, misuse, destruction, or loss of funds, resources, or property belonging to a patient, a health care entity, or any federal or state program.
"Wrongdoing" means a violation of any law, rule, regulation, or generally recognized professional or clinical standard that relates to care, services, or conditions and which potentially endangers one or more patients or workers or the public.
As used in this article:
(1) "Initial responder" means emergency medical service personnel, as defined in subdivision (g), section three, article four-c of this chapter, including, but not limited to, a member of the West Virginia State Police, a sheriff, a deputy sheriff, a municipal police officer, a volunteer or paid firefighter and any other person acting under color of law who responds to emergencies.
(2) "Licensed health care provider" means a person, partnership, corporation, professional limited liability company, health care facility or institution licensed by or certified in this state to provide health care or professional health care services. This includes, but is not limited to, medical physicians, allopathic and osteopathic physicians, pharmacists, physician assistants associates or osteopathic physician assistants associates who hold a certificate to prescribe drugs, advanced nurse practitioners who hold a certificate to prescribe drugs, hospitals, emergency service agencies and others as allowed by law to prescribed drugs.
(3) "Opiates" or "opioid drugs" means drugs that are members of the natural and synthetic opium family, including, but not limited to, heroin, morphine, codeine, methadone, oxycodone, hydrocodone, fentanyl and hydromorphone.
(4) "Opioid antagonist" means a federal Food and Drug Administration-approved drug for the treatment of an opiate-related overdose, such as naloxone hydrochloride or other substance, that, when administered, negates or neutralizes, in whole or in part, the pharmalogical effects of an opioid in the body.
(5) "Opioid overdose prevention and treatment training program" or "program" means any program operated or approved by the Office of Emergency Medical Services as set forth in rules promulgated pursuant to this article.
(6) "Overdose" means an acute condition, including, but not limited to, life-threatening physical illness, coma, mania, hysteria or death, which is the result of the consumption or use of opioid drugs.
(7) "Standing order" means a written document containing rules, policies, procedures, regulations and orders for the conduct of patient care, including the condition being treated, the action to be taken and the dosage and route of administration for the drug prescribed.
As used in this section:
"Acute pain" means a time limited pain caused by a specific disease or injury.
"Chronic pain" means a noncancer, nonend of life pain lasting more than three months or longer than the duration of normal tissue healing.
"Health care practitioner" or "practitioner" means:
(1) A physician authorized pursuant to the provisions of §30-3-1 et seq. and §30-14-1 et seq. of this code;
(2) A podiatrist licensed pursuant to the provisions of §30-3-1 et seq. of this code;
(3) A physician assistant associate with prescriptive authority as set forth in §30-3E-3 of this code;
(4) An advanced practice registered nurse with prescriptive authority as set forth in §30-7-15a of this code;
(5) A dentist licensed pursuant to the provisions of §30-4-1 et seq. of this code;
(6) An optometrist licensed pursuant to the provisions of §30-8-1 et seq. of this code;
(7) A physical therapist licensed pursuant to the provisions of §30-20-1 et seq. of this code;
(8) An occupational therapist licensed pursuant to the provisions of §30-28-1 et seq. of this code;
(9) An osteopathic physician licensed pursuant to the provisions of §30-14-1 et seq. of this code; and
(10) A chiropractor licensed pursuant to the provisions of §30-16-1 et seq. of this code.
"Insurance provider" means an entity that is regulated under the provisions of §33-15-1 et seq., §33-16-1 et seq., §33-24-1 et seq., §33-25-1 et seq. and §33-25A-1 et seq. of this code.
"Office" means the Office of Drug Control Policy.
"Pain clinic" means the same as that term is defined in §16-5H-2 of this code.
"Pain specialist" means a practitioner who is board certified in pain management or a related field.
"Prescribe" means the advisement of a physician or other licensed practitioner to a patient for a course of treatment. It can include but is not limited to medication, services, supplies, equipment, procedures, diagnostic tests, or screening as permitted by the physician or other licensed practitioner’s scope of practice.
"Referral" means the recommendation by a person to another person for the purpose of initiating care by a health care practitioner.
"Schedule II opioid drug" means an opioid drug listed in §60A-2-206 of this code.
"Surgical procedure" means a medical procedure involving an incision with instruments performed to repair damage or arrest disease in a living body.
(a) The Department of Education, working in conjunction with the State Health Officer of the Department of Health and Human Resources, shall develop educational materials and guidelines, including a warning sign information sheet, regarding sudden cardiac arrest, including, but not limited to, symptoms and warning signs for students of all ages and risks associated with continuing to play or practice after experiencing the following symptoms: Fainting or seizures during exercise, unexplained shortness of breath, chest pains, dizziness, racing heart, or extreme fatigue. Training materials shall be developed for the use of parents, students, coaches, and administrators.
(b) The educational materials and other relevant materials shall be posted on the website of the Department of Education, Department of Health and Human Resources, and public schools to inform and educate parents, students, and coaches participating, or desiring to participate in, an athletic activity about the nature and warning signs of sudden cardiac arrest.
(c) Prior to the start of each athletic season, a school subject to this section shall hold an informational meeting for students, parents, guardians, or other persons having care or charge of a student regarding the warning signs of sudden cardiac arrest for children of all ages.
(d) No student may participate in an athletic activity until the student has submitted to a designated school official, a form signed by the student and the parent, guardian, or other person having care or charge of the student stating that the student and the parent, guardian, or other person having care or charge of the student have received and reviewed a copy of the information developed by the departments of health and education and posted on their respective webpages. A completed form shall be submitted each school year in which the student participates in an athletic activity.
(e) No individual may coach an athletic activity unless the individual has completed, on an annual basis, the sudden cardiac arrest training course approved by the Department of Education and Department of Health and Human Resources.
(f) A student shall not be allowed to participate in an athletic activity if either of the following is the case:
(1) The student is known to have exhibited syncope or fainting at any time prior to or following an athletic activity and has not been evaluated and cleared for return after exhibiting syncope or fainting; or
(2) The student experiences syncope or fainting while participating in, or immediately following, an athletic activity.
(g) If a student is not allowed to participate in or is removed from participation in an athletic activity under subsection (f) of this section, the student shall not be allowed to return to participation until the student is evaluated and cleared for return in writing by any of the following:
(1) A physician authorized under §30-3-1 et seq. and §30-14-1 et seq. of this code;
(2) A certified nurse practitioner, clinical nurse specialist, or certified nurse midwife; or
(3) A physician assistant associate licensed under §30-3E-1 et seq. and §30-14A-1 et seq. of this code.
(h) The licensed health care professional may consult with any other licensed or certified health care professionals in order to determine whether a student is ready to participate in the athletic activity.
(i) The governing body of a school shall establish penalties for a coach found in violation of the requirements of subsection (f) of this section.
(j) A school district, member of a school district, board of education, school district employee or volunteer, including a coach, is not liable for damages in a civil action for injury, death, or loss to person or property allegedly arising from providing services or performing duties under this section, unless the act or omission constitutes willful or wanton misconduct. This section does not eliminate, limit, or reduce any other immunity or defense that a school district, member of a board of education, or school district employee or volunteer, including a coach, may be entitled to under the law of this state.
(a) For the purposes of this section, the following words have the meanings specified unless the context clearly indicates a different meaning:
(1) "Medication" means asthma medicine, prescribed by:
(A) A physician licensed to practice medicine in all its branches; or
(B) A physician assistant associate who has been delegated the authority to prescribe asthma medications by a supervising physician; or
(C) An advanced practice registered nurse who has a written collaborative agreement with a collaborating physician. Such agreement shall delegate the authority to prescribe the medications for a student that pertain to the student's asthma and that have an individual prescription label.
(2) "Self-administration" or "self-administer" means a student's discretionary use of prescribed asthma medication.
(b) A student enrolled in a public, private, parochial or denominational school located within this state may possess and self-administer asthma medication subject to the following conditions:
(1) The parents or guardians of the student have provided to the school:
(A) A written authorization for the self-administration of asthma medication; and
(B) A written statement from the physician or advanced practice registered nurse which contains the name, purpose, appropriate usage and dosage of the student's medication and the time or times at which, or the special circumstances under which, the medication is to be administered;
(2) The student has demonstrated the ability and understanding to self-administer asthma medication by:
(A) Passing an assessment by the school nurse evaluating the student's technique of self-administration and level of understanding of the appropriate use of the asthma medication; or
(B) In the case of nonpublic schools that do not have a school nurse, providing to the school from the student's physician or advanced practice registered nurse written verification that the student has passed such an assessment; and
(3) The parents or guardians of the student have acknowledged in writing that they have read and understand a notice provided by the county board or nonpublic school that:
(A) The school, county school board or nonpublic school and its employees and agents are exempt from any liability, except for willful and wanton conduct, as a result of any injury arising from the self-administration of asthma medication by the student; and
(B) The parents or guardians indemnify and hold harmless the school, the county board of education or nonpublic school and its employees or guardians and agents against any claims arising out of the self-administration of the medication by the student.
(c) The information provided to the school pursuant to subsection (b) of this section shall be kept on file in the office of the school nurse or, in the absence of a school nurse, in the office of the school administrator.
(d) Permission for a student to self-administer asthma medication is effective for the school year for which it is granted and shall be renewed each subsequent school year if the requirements of this section are met.
(e) Permission to self-administer medication may be revoked if the administrative head of the school finds that the student's technique of self-administration and understanding of the use of the asthma medication is not appropriate or is willfully disregarded.
(f) A student with asthma who has met the requirements of this section may possess and use asthma medication:
(1) In school;
(2) At a school-sponsored activity;
(3) Under the supervision of school personnel; or
(4) Before or after normal school activities, such as before school or after school care on school operated property.
(g) The state board shall promulgate rules necessary to effectuate the provisions of this section in accordance with the provisions of article three-b, chapter twenty-nine-a of this code.
For purposes of this article, and in addition to the definitions set forth in section two, article one of this chapter, the terms used in this article have the following definitions ascribed to them:
(a) "Advisory panel" or "panel" means the West Virginia rural health advisory panel created under section six of this article.
(b) "Allied health care" means health care other than that provided by physicians, nurses, dentists and mid-level providers and includes, but is not limited to, care provided by clinical laboratory personnel, physical therapists, occupational therapists, respiratory therapists, medical records personnel, dietetic personnel, radiologic personnel, speech-language-hearing personnel and dental hygienists.
(c) "Mid-level provider" includes, but is not limited to, advanced nurse practitioners, nurse-midwives and physician assistants associates.
(d) "Office of community and rural health services" means that agency, staff or office within the Department of Health and Human Resources which has as its primary focus the delivery of rural health care.
(e) "Primary care" means basic or general health care which emphasizes the point when the patient first seeks assistance from the medical care system and the care of the simpler and more common illnesses. This type of care is generally rendered by family practice physicians, general practice physicians, general internists, obstetricians, pediatricians, psychiatrists and mid-level providers.
(f) "Primary health care education sites" or "sites", whether the term is used in the plural or singular, means those rural health care facilities established for the provision of educational and clinical experiences pursuant to section seven of this article.
(g) "Rural health care facilities" or "facilities", whether the term is used in the plural or singular, means nonprofit, free-standing primary care clinics in medically underserved or health professional shortage areas and nonprofit rural hospitals with 100 or less licensed acute care beds located in a nonstandard metropolitan statistical area.
(h) "Schools of medicine" means the West Virginia University school of medicine, which is the school of health sciences; the Marshall school of medicine, which is the Marshall medical school; and the West Virginia school of osteopathic medicine.
(i) "Vice chancellor" means the vice chancellor for health sciences provided for under section six, article two of this chapter.
(a) There is continued a special revolving fund account under the Higher Education Policy Commission in the State Treasury formerly known as the Health Sciences Scholarship Fund. The fund shall be used to accomplish the purposes of this section. The fund consists of any of the following:
(1) All unexpended health sciences scholarship funds on deposit in the State Treasury on the effective date of this section;
(2) Appropriations as may be provided by the Legislature;
(3) Repayments, including interest as set by the Vice Chancellor for Health Sciences, collected from program award recipients who fail to practice or teach in West Virginia under the terms of an award agreement or the Health Sciences Scholarship Program previously established by this section; and
(4) Amounts that may become available from other sources.
Balances remaining in the fund at the end of the fiscal year do not expire or revert to the general revenue. All costs associated with the administration of this section shall be paid from the Health Sciences Service Program Fund under the direction of the Vice Chancellor for Health Sciences.
(b) Award preference is given to West Virginia residents. An individual is eligible for consideration for a Health Sciences Service Program award if the individual:
(1) Either:
(A) Is a fourth-year medical student at the Marshall University School of Medicine, West Virginia School of Osteopathic Medicine, or West Virginia University School of Medicine who has been accepted in a primary care or emergency medicine internship/residency program in West Virginia; or
(B) Is enrolled in an approved education program at a West Virginia institution leading to a degree or certification in the field of nurse practitioner, nurse educator, nurse midwife, physician assistant associate, dentist, pharmacist, physical therapist, doctoral clinical psychologist, licensed independent clinical social worker, or other disciplines identified as shortage fields by the Vice Chancellor for Health Sciences; and
(2) Signs an agreement to practice for at least two years in an underserved area of West Virginia or, if pursuing a master’s degree in nursing, signs an agreement to teach at least two years for a school of nursing located in West Virginia, as may be determined by the Vice Chancellor for Health Sciences, after receiving the master’s degree.
(c) Program awards shall be in an amount set by the Higher Education Policy Commission of at least $20,000 for medical and dental students and at least $10,000 for all others and may be awarded by the Vice Chancellor for Health Sciences, with the advice of an advisory panel, from the pool of all applicants with a commitment to practice in an underserved area of West Virginia. This section does not grant or guarantee any applicant any right to a program award.
(d) A program award recipient who fails to practice in an underserved area of West Virginia within six months of the completion of his or her training, or who fails to complete his or her training or required teaching, is in breach of contract and is liable for repayment of the program award and any accrued interest. The granting or renewal of a license to practice in West Virginia or to reciprocal licensure in another state based upon licensure in West Virginia is contingent upon beginning payment and continuing payment until complete repayment of the award and any accrued interest. A license, renewal, or reciprocity may not be granted to any person whose repayment is in arrears. The appropriate regulatory board shall inform all other states where a recipient has reciprocated based upon West Virginia licensure of any refusal to renew licensure in West Virginia as a result of failure to repay the award. This provision shall be explained in bold type in the award contract. Repayment terms, not inconsistent with this section, shall be established by the Vice Chancellor for Health Sciences pursuant to the rule required by this section.
(A) A participant may receive a loan repayment program award of up to $10,000 each year in exchange for the participant completing one year of practice in an underserved area.
(B) A participant may not receive a program award for more than three years of practice.
(C) A participant must direct each award received toward the repayment of his or her educational loans.
(2) There is created a special revenue fund account under the Higher Education Policy Commission in the State Treasury known as the Mental Health Provider Student Loan Repayment Fund. The fund shall be used to accomplish the purposes of this subsection. The fund shall consist of appropriations as may be provided by the Legislature. Any moneys remaining in the fund at the close of a fiscal year shall be carried forward for use in the next fiscal year.
(f) Rule. — The Higher Education Policy Commission shall promulgate a rule pursuant to §29A-3A-1 et seq. of this code to implement and administer this section.
(g) As used in this section:
(1) "Training" means:
(A) The entire degree program or certification program for nurse midwives, nurse practitioners, nurse educators, physician assistants associates, dentists, pharmacists, physical therapists, doctoral clinical psychologists, licensed independent clinical social workers, and other disciplines identified as shortage fields by the Vice Chancellor for Health Sciences; or
(B) Completion of a degree program and an approved residency/internship program for students pursuing a degree in medicine or osteopathy, or as otherwise may be designated for such students in the rule required by this section.
(2) "Underserved area" means any primary care health professional shortage area located in the state as determined by the Bureau for Public Health or any additional health professional shortage area, including an emergency medicine professional determined by the Vice Chancellor for Health Sciences.
(a) A Class Q permit is a special statewide hunting permit entitling the permittee to hunt all legal species of game during the designated hunting seasons from a motor vehicle in accordance with the provisions of this section.
(b) The director shall furnish an application and a Class Q permit will be issued to applicants who meet one of the following conditions of permanent disability:
(1) Permanent or irreversible physical disability that prevents ability to ambulate without use of a wheelchair, walker, crutches, one leg brace or external prosthesis above the knee, or two leg braces or external prostheses below the knees for mobility.
(2) Multiple conditions that result in a minimum of 90 percent loss of use of a lower extremity.
(3) Lung disease to the extent that forced expiratory volume for one second when measured by spirometry is less than one liter or the arterial oxygen tension less than 60 millimeters of mercury on room air at rest.
(4) Cardiovascular disease to the extent that functional limitations are classified in severity as class 3 or 4, according to standards set by the American Heart Association and where ordinary physical activity causes palpitation, dyspnea or anginal pain.
(c) A licensed physician, physician assistant associate, advanced practice registered nurse or chiropractic physician must certify the applicant’s permanent disability by completing the permit application. The Class Q permit application shall be submitted to the division, which will issue a wallet sized card to the permittee.
(d) A person with a Class Q permit may not hunt or trap under the provisions of this section unless he or she is in possession of the Class Q permit card, a valid hunting license issued pursuant to §20-2-1 et seq. of this code or is a person excepted from licensing requirements pursuant to §20-2-27 and §20-2-28 of this code, and all documents or other lawful authorizations as prescribed in §20-2-37 of this code.
(e) A Class Q permit entitles the holder to hunt from a motor vehicle and, notwithstanding the provisions of §20-2-5 of this code, to possess a loaded firearm in a motor vehicle, but only under the following circumstances:
(1) The motor vehicle is stationary;
(2) The engine of the motor vehicle is not operating;
(3) The permittee and one individual, who is at least 16 years of age, to assist the permittee are the only occupants of the vehicle;
(4) The individual assisting the permittee may not hunt with a firearm, bow, or cross-bow while assisting the permittee;
(5) The vehicle is not parked on the right-of-way of any public road or highway; and
(6) The permittee observes all other pertinent laws and regulations.
(f) The director may propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code setting forth the qualifications of applicants and the permitting process.
(a) Any adult person may make an application for involuntary hospitalization for examination of an individual when the person making the application has reason to believe that the individual to be examined has a substance use disorder as defined by the most recent edition of the American Psychiatric Association in the Diagnostic and Statistical Manual of Mental Disorders, inclusive of substance use withdrawal, or is mentally ill and because of his or her substance use disorder or mental illness, the individual is likely to cause serious harm to himself, herself, or to others if allowed to remain at liberty while awaiting an examination and certification by a physician, psychologist, licensed professional counselor, licensed independent social worker, an advanced nurse practitioner, or physician assistant associate as provided in subsection (e) of this section: Provided, That a diagnosis of dementia, epilepsy, or intellectual or developmental disability alone may not be a basis for involuntary commitment to a state hospital.
(b) Notwithstanding any language in this subsection to the contrary, if the individual to be examined under the provisions of this section is incarcerated in a jail, prison, or other correctional facility, then only the chief administrative officer of the facility holding the individual may file the application, and the application must include the additional statement that the correctional facility itself cannot reasonably provide treatment and other services necessary to treat the individual’s mental illness or substance use.
(c) Application for involuntary custody for examination may be made to the circuit court, magistrate court, or a mental hygiene commissioner of the county in which the individual resides, or of the county in which he or she may be found. A magistrate before whom an application or matter is pending may, upon the availability of a mental hygiene commissioner or circuit court judge for immediate presentation of an application or pending matter, transfer the pending matter or application to the mental hygiene commissioner or circuit court judge for further proceedings unless otherwise ordered by the chief judge of the judicial circuit.
(d) The person making the application shall give information and state facts in the application required by the form provided for this purpose by the Supreme Court of Appeals.
(e) The circuit court, mental hygiene commissioner, or magistrate may enter an order for the individual named in the application to be detained and taken into custody as provided in §27-5-1 and §27-5-10 of this code for the purpose of holding a probable cause hearing as provided in §27-5-2 of this code. An examination of the individual to determine whether the individual meets involuntary hospitalization criteria shall be conducted in person unless an in person examination would create a substantial delay in the resolution of the matter in which case the examination may be by video conference, and shall be performed by a physician, psychologist, a licensed professional counselor practicing in compliance with §30-31-1 et seq. of this code, a licensed independent clinical social worker practicing in compliance with §30-30-1 et seq. of this code, an advanced nurse practitioner with psychiatric certification practicing in compliance with §30-7-1 et seq. of this code, a physician assistant associate practicing in compliance with §30-3-1 et seq. of this code, or a physician assistant associate practicing in compliance with §30-3E-1 et seq. of this code: Provided, That a licensed professional counselor, a licensed independent clinical social worker, a physician assistant associate, or an advanced nurse practitioner with psychiatric certification may only perform the examination if he or she has previously been authorized by an order of the circuit court to do so, the order having found that the licensed professional counselor, the licensed independent clinical social worker, physician assistant associate, or advanced nurse practitioner with psychiatric certification has particularized expertise in the areas of mental health and mental hygiene or substance use disorder sufficient to make the determinations required by the provisions of this section. The examination shall be provided or arranged by a community mental health center designated by the Secretary of the Department of Health and Human Resources to serve the county in which the action takes place. The order is to specify that the evaluation be held within a reasonable period of time not to exceed two hours and shall provide for the appointment of counsel for the individual: Provided, however, That the time requirements set forth in this subsection only apply to persons who are not in need of medical care for a physical condition or disease for which the need for treatment precludes the ability to comply with the time requirements. During periods of holding and detention authorized by this subsection, upon consent of the individual or if there is a medical or psychiatric emergency, the individual may receive treatment. The medical provider shall exercise due diligence in determining the individual’s existing medical needs and provide treatment the individual requires, including previously prescribed medications. As used in this section, "psychiatric emergency" means an incident during which an individual loses control and behaves in a manner that poses substantial likelihood of physical harm to himself, herself, or others. Where a physician, psychologist, licensed professional counselor, licensed independent clinical social worker, physician assistant associate, or advanced nurse practitioner with psychiatric certification has, within the preceding 72 hours, performed the examination required by this subsection the community mental health center may waive the duty to perform or arrange another examination upon approving the previously performed examination. Notwithstanding this subsection, §27-5-4(r) of this code applies regarding payment by the county commission for examinations at hearings. If the examination reveals that the individual is not mentally ill or has no substance use disorder, or is determined to be mentally ill or has a substance use disorder but not likely to cause harm to himself, herself, or others, the individual shall be immediately released without the need for a probable cause hearing and the examiner is not civilly liable for the rendering of the opinion absent a finding of professional negligence. The examiner shall immediately, but no later than 60 minutes after completion of the examination, provide the mental hygiene commissioner, circuit court, or magistrate before whom the matter is pending, and the state hospital to which the individual may be involuntarily hospitalized, the results of the examination on the form provided for this purpose by the Supreme Court of Appeals for entry of an order reflecting the lack of probable cause.
(f) A probable cause hearing shall be held promptly before a magistrate, the mental hygiene commissioner, or circuit judge of the county of which the individual is a resident or where he or she was found. If requested by the individual or his or her counsel, the hearing may be postponed for a period not to exceed 48 hours. Hearings may be conducted via videoconferencing unless the individual or his or her attorney object for good cause or unless the magistrate, mental hygiene commissioner, or circuit judge orders otherwise. The Supreme Court of Appeals is requested to develop regional mental hygiene collaboratives where mental hygiene commissioners can share on-call responsibilities, thereby reducing the burden on individual circuits and commissioners.
The individual shall be present at the hearing and has the right to present evidence, confront all witnesses and other evidence against him or her, and examine testimony offered, including testimony by representatives of the community mental health center serving the area. Expert testimony at the hearing may be taken telephonically or via videoconferencing. The individual has the right to remain silent and to be proceeded against in accordance with the Rules of Evidence of the Supreme Court of Appeals, except as provided in §27-1-12 of this code. At the conclusion of the hearing, the magistrate, mental hygiene commissioner, or circuit court judge shall find and enter an order stating whether or not it is likely that deterioration will occur without clinically necessary treatment, or there is probable cause to believe that the individual, as a result of mental illness or substance use disorder, is likely to cause serious harm to himself or herself or to others. Any such order entered shall be provided to the state hospital to which the individual may or will be involuntarily hospitalized within 60 minutes of filing absent good cause.
(g) Probable cause hearings may occur in the county where a person is hospitalized. The judicial hearing officer may: use videoconferencing and telephonic technology; permit persons hospitalized for substance use disorder to be involuntarily hospitalized only until detoxification is accomplished; and specify other alternative or modified procedures that are consistent with the purposes and provisions of this article to promote a prompt, orderly, and efficient hearing. The alternative or modified procedures shall fully and effectively guarantee to the person who is the subject of the involuntary commitment proceeding and other interested parties due process of the law and access to the least restrictive available treatment needed to prevent serious harm to self or others.
(h) If the magistrate, mental hygiene commissioner, or circuit court judge at a probable cause hearing or a mental hygiene commissioner or circuit judge at a final commitment hearing held pursuant to the provisions of §27-5-4 of this code finds that the individual, as a direct result of mental illness or substance use disorder is likely to cause serious harm to himself, herself, or others and because of mental illness or a substance use disorder requires treatment, the magistrate, mental hygiene commissioner, or circuit court judge may consider evidence on the question of whether the individual’s circumstances make him or her amenable to outpatient treatment in a nonresidential or nonhospital setting pursuant to a voluntary treatment agreement. At the conclusion of the hearing, the magistrate, mental hygiene commissioner, or circuit court judge shall find and enter an order stating whether or not it is likely that deterioration will occur without clinically necessary treatment, or there is probable cause to believe that the individual, as a result of mental illness or substance use disorder, is likely to cause serious harm to himself or herself or others. The agreement is to be in writing and approved by the individual, his or her counsel, and the magistrate, mental hygiene commissioner, or circuit court judge. If the magistrate, mental hygiene commissioner, or circuit court judge determines that appropriate outpatient treatment is available in a nonresidential or nonhospital setting, the individual may be released to outpatient treatment upon the terms and conditions of the voluntary treatment agreement. The failure of an individual released to outpatient treatment pursuant to a voluntary treatment agreement to comply with the terms of the voluntary treatment agreement constitutes evidence that outpatient treatment is insufficient and, after a hearing before a magistrate, mental hygiene commissioner, or circuit judge on the issue of whether or not the individual failed or refused to comply with the terms and conditions of the voluntary treatment agreement and whether the individual as a result of mental illness or substance use disorder remains likely to cause serious harm to himself, herself, or others, the entry of an order requiring admission under involuntary hospitalization pursuant to §27-5-3 of this code may be entered. Nothing in the provisions of this article regarding release pursuant to a voluntary treatment agreement or convalescent status may be construed as creating a right to receive outpatient mental health services or treatment, or as obligating any person or agency to provide outpatient services or treatment. Time limitations set forth in this article relating to periods of involuntary commitment to a mental health facility for hospitalization do not apply to release pursuant to the terms of a voluntary treatment agreement: Provided, That release pursuant to a voluntary treatment agreement may not be for a period of more than six months if the individual has not been found to be involuntarily committed during the previous two years and for a period of no more than two years if the individual has been involuntarily committed during the preceding two years. If in any proceeding held pursuant to this article the individual objects to the issuance or conditions and terms of an order adopting a voluntary treatment agreement, then the circuit judge, magistrate, or mental hygiene commissioner may not enter an order directing treatment pursuant to a voluntary treatment agreement. If involuntary commitment with release pursuant to a voluntary treatment agreement is ordered, the individual subject to the order may, upon request during the period the order is in effect, have a hearing before a mental hygiene commissioner or circuit judge where the individual may seek to have the order canceled or modified. Nothing in this section affects the appellate and habeas corpus rights of any individual subject to any commitment order.
The commitment of any individual as provided in this article shall be in the least restrictive setting and in an outpatient community-based treatment program to the extent resources and programs are available, unless the clear and convincing evidence of the certifying professional under subsection (e) of this section, who is acting in a manner consistent with the standard of care establishes that the commitment or treatment of that individual requires an inpatient hospital placement. Outpatient treatment will be based upon a plan jointly prepared by the department and the comprehensive community mental health center or licensed behavioral health provider.
(i) If the certifying professional determines that an individual requires involuntary hospitalization for a substance use disorder as permitted by §27-5-2(a) of this code which, due to the degree of the disorder, creates a reasonable likelihood that withdrawal or detoxification will cause significant medical complications, the person certifying the individual shall recommend that the individual be closely monitored for possible medical complications. If the magistrate, mental hygiene commissioner, or circuit court judge presiding orders involuntary hospitalization, he or she shall include a recommendation that the individual be closely monitored in the order of commitment.
(j) The Supreme Court of Appeals and the Secretary of the Department of Health and Human Resources shall specifically develop and propose a statewide system for evaluation and adjudication of mental hygiene petitions which shall include payment schedules and recommendations regarding funding sources. Additionally, the Secretary of the Department of Health and Human Resources shall also immediately seek reciprocal agreements with officials in contiguous states to develop interstate/intergovernmental agreements to provide efficient and efficacious services to out-of-state residents found in West Virginia and who are in need of mental hygiene services.
(a) Admission to a mental health facility for examination. — An individual shall be admitted to a mental health facility for examination and treatment upon entry of an order finding probable cause as provided in §27-5-2 of this code. Upon certification by a physician, psychologist, licensed professional counselor, licensed independent clinical social worker practicing in compliance with the provisions of §30-30-1 et seq. of this code, an advanced nurse practitioner with psychiatric certification practicing in compliance with §30-7-1 et seq. of this code, or a physician’s assistant associate practicing in compliance with §30-3E-1 et seq. of this code with advanced duties in psychiatric medicine that he or she has examined the individual and is of the opinion that the individual is mentally ill or has a substance use disorder and, because of the mental illness or substance use disorder, is likely to cause serious harm to himself, herself, or to others if not immediately restrained and treated: Provided, That the opinions offered by an independent clinical social worker, an advanced nurse practitioner with psychiatric certification, or a physician assistant associate with advanced duties in psychiatric medicine shall be within his or her particular areas of expertise, as recognized by the order of the authorizing court.
(b) Three-day time limitation on examination. — If the examination does not take place within three days from the date the individual is taken into custody, the individual shall be released. If the examination reveals that the individual is not mentally ill or has a substance use disorder, the individual shall be released.
(c) Three-day time limitation on certification. — The certification required in §27-5-3(a) of this code is valid for three days. Any individual with respect to whom the certification has been issued may not be admitted on the basis of the certification at any time after the expiration of three days from the date of the examination.
(d) Findings and conclusions required for certification. — A certification under this section shall include findings and conclusions of the mental examination, the date, time, and place of the examination, and the facts upon which the conclusion that involuntary commitment is necessary is based, including facts that less restrictive interventions and placements were considered but are not appropriate and available and that the risks and benefits were explained as required by §27-5-1(i) of this code.
(e) Notice requirements. — When an individual is admitted to a mental health facility or a state hospital pursuant to the provisions of this section, the chief medical officer of the facility shall immediately give notice of the individual’s admission to the individual’s spouse, if any, and one of the individual’s parents or guardians or if there is no spouse and are no parents or guardians, to one of the individual’s adult next of kin if the next of kin is not the applicant. Notice shall also be given to the community mental health facility, if any, having jurisdiction in the county of the individual’s residence. The notices other than to the community mental health facility shall be in writing and shall be transmitted to the person or persons at his, her, or their last known address by certified mail, return receipt requested.
(f) Three-day time limitation for examination and certification at mental health facility or state hospital. — After the individual’s admission to a mental health facility or state hospital, he or she may not be detained more than three days, excluding Sundays and holidays, unless, within the three-day period, the individual is examined by a staff physician and the physician certifies that in his or her opinion the patient is not suffering from a physical ailment manifesting behaviors which mimic mental illness but is mentally ill or has a substance use disorder and is likely to injure himself, herself, or others and requires continued commitment and treatment. If the staff physician determines that the individual does not meet the criteria for continued commitment, that the individual can be treated in an available outpatient community-based treatment program and poses no present danger to himself, herself or others, or that the individual has an underlying medical issue or issues that resulted in a determination that the individual should not have been committed, the staff physician shall release and discharge the individual as appropriate as soon as practicable.
(g) Twenty-day time limitation for institution of final commitment proceedings. — If, in the opinion of the examining physician, the patient is mentally ill or has a substance use disorder and because of the mental illness or substance use disorder is likely to injure himself, herself, or others if allowed to be at liberty, the chief medical officer shall, within 20 calendar days from the date of admission, institute final commitment proceedings as provided in §27-5-4 of this code. If the proceedings are not instituted within the 20-day period absent good cause, the individual shall be immediately released. After the request for hearing is filed, the hearing may not be canceled on the basis that the individual has become a voluntary patient unless the mental hygiene commissioner concurs in the motion for cancellation of the hearing.
(h) Thirty-five day time limitation for conclusion of all proceedings. — If all proceedings as provided in §27-3-1 et seq. and §27-4-1 et seq. of this code are not completed within 35 days from the date of filing the Application for Involuntary Custody for Mental Health Examination, the individual shall be immediately released.
(a) Involuntary commitment. — Except as provided in §27-5-2 and §27-5-3 of this code, no individual may be involuntarily committed to a mental health facility or state hospital except by order entered of record at any time by the circuit court of the county in which the person resides or was found, or if the individual is hospitalized in a mental health facility or state hospital located in a county other than where he or she resides or was found, in the county of the mental health facility and then only after a full hearing on issues relating to the necessity of committing an individual to a mental health facility or state hospital. If the individual objects to the hearing being held in the county where the mental health facility is located, the hearing shall be conducted in the county of the individual’s residence. Notwithstanding the provisions of this code to the contrary, all hearings for the involuntary final civil commitment of a person who is committed in accordance with §27-6A-1 et al. of this code shall be held by the circuit court of the county that has jurisdiction over the person for the criminal charges and such circuit court shall have jurisdiction over the involuntary final civil commitment of such person.
(b) How final commitment proceedings are commenced. — Final commitment proceedings for an individual may be commenced by the filing of a written application under oath by an adult person having personal knowledge of the facts of the case. The certificate or affidavit is filed with the clerk of the circuit court or mental hygiene commissioner of the county where the individual is a resident or where he or she may be found, or the county of a mental health facility if he or she is hospitalized in a mental health facility or state hospital located in a county other than where he or she resides or may be found. Notwithstanding anything any provision of this code to the contrary, all hearings for the involuntary final civil commitment of a person who is committed in accordance with §27-6A-1 et seq. of this code shall be commenced only upon the filing of a Certificate of the Licensed Certifier at the mental health facility where the person is currently committed.
(c) Oath; contents of application; who may inspect application; when application cannot be filed. —
(1) The person making the application shall do so under oath.
(2) The application shall contain statements by the applicant that the individual is likely to cause serious harm to self or others due to what the applicant believes are symptoms of mental illness or substance use disorder. Except for persons sought to be committed as provided in §27-6A-1 et seq. of this code, the applicant shall state in detail the recent overt acts upon which the clinical opinion is based.
(3) The written application, certificate, affidavit, and any warrants issued pursuant thereto, including any related documents filed with a circuit court, mental hygiene commissioner, or magistrate for the involuntary hospitalization of an individual are not open to inspection by any person other than the individual, unless authorized by the individual or his or her legal representative or by order of the circuit court. The records may not be published unless authorized by the individual or his or her legal representative. Disclosure of these records may, however, be made by the clerk, circuit court, mental hygiene commissioner, or magistrate to provide notice to the Federal National Instant Criminal Background Check System established pursuant to section 103(d) of the Brady Handgun Violence Prevention Act, 18 U.S.C. §922, and the central state mental health registry, in accordance with §61-7A-1 et seq. of this code, and the sheriff of a county performing background investigations pursuant to §61-7-1 et seq. of this code. Disclosure may also be made to the prosecuting attorney and reviewing court in an action brought by the individual pursuant to §61-7A-5 of this code to regain firearm and ammunition rights.
(4) Applications shall be denied for individuals as provided in §27-5-2(a) of this code.
(d) Certificate filed with application; contents of certificate; affidavit by applicant in place of certificate. —
(1) The applicant shall file with his or her application the certificate of a physician or a psychologist stating that in his or her opinion the individual is mentally ill or has a substance use disorder and that because of the mental illness or substance use disorder, the individual is likely to cause serious harm to self or others and requires continued commitment and treatment, and should be hospitalized. Except for persons sought to be committed as provided in §27-6A-1 et seq. of this code, the certificate shall state in detail the recent overt acts on which the conclusion is based, including facts that less restrictive interventions and placements were considered but are not appropriate and available. The applicant shall further file with his or her application the names and last known addresses of the persons identified in §27-5-4(e)(3) of this code.
(2) A certificate is not necessary when an affidavit is filed by the applicant showing facts and the individual has refused to submit to examination by a physician or a psychologist.
(e) Notice requirements; eight days’ notice required. — Upon receipt of an application, the mental hygiene commissioner or circuit court shall review the application, and if it is determined that the facts alleged, if any, are sufficient to warrant involuntary hospitalization, immediately fix a date for and have the clerk of the circuit court give notice of the hearing:
(1) To the individual;
(2) To the applicant or applicants;
(3) To the individual’s spouse, one of the parents or guardians, or, if the individual does not have a spouse, parents or parent or guardian, to one of the individual’s adult next of kin if the next of kin is not the applicant;
(4) To the mental health authorities serving the area;
(5) To the circuit court in the county of the individual’s residence if the hearing is to be held in a county other than that of the individual’s residence; and
(6) To the prosecuting attorney of the county in which the hearing is to be held.
(f) The notice shall be served on the individual by personal service of process not less than eight days prior to the date of the hearing and shall specify:
(1) The nature of the charges against the individual;
(2) The facts underlying and supporting the application of involuntary commitment;
(3) The right to have counsel appointed;
(4) The right to consult with and be represented by counsel at every stage of the proceedings; and
(5) The time and place of the hearing.
The notice to the individual’s spouse, parents or parent or guardian, the individual’s adult next of kin, or to the circuit court in the county of the individual’s residence may be by personal service of process or by certified or registered mail, return receipt requested, and shall state the time and place of the hearing.
(g) Examination of individual by court-appointed physician, psychologist, advanced nurse practitioner, or physician assistant associate; custody for examination; dismissal of proceedings. —
(1) Except as provided in subdivision (3) of this subsection, and except when a Certificate of the Licensed Examiner and an application for final civil commitment at the mental health facility where the person is currently committed has been completed and filed, within a reasonable time after notice of the commencement of final commitment proceedings is given, the circuit court or mental hygiene commissioner shall appoint a physician, psychologist, an advanced nurse practitioner with psychiatric certification, or a physician assistant associate with advanced duties in psychiatric medicine to examine the individual and report to the circuit court or mental hygiene commissioner his or her findings as to the mental condition or substance use disorder of the individual and the likelihood of causing serious harm to self or others. Any such report shall include the names and last known addresses of the persons identified in §27-5-4-(e)(3) of this code.
(2) If the designated physician, psychologist, advanced nurse practitioner, or physician assistant associate reports to the circuit court or mental hygiene commissioner that the individual has refused to submit to an examination, the circuit court or mental hygiene commissioner shall order him or her to submit to the examination. The circuit court or mental hygiene commissioner may direct that the individual be detained or taken into custody for the purpose of an immediate examination by the designated physician, psychologist, nurse practitioner, or physician assistant associate. All orders shall be directed to the sheriff of the county or other appropriate law-enforcement officer. After the examination has been completed, the individual shall be released from custody unless proceedings are instituted pursuant to §27-5-3 of this code.
(3) If the reports of the appointed physician, psychologist, nurse practitioner, or physician assistant associate do not confirm that the individual is mentally ill or has a substance use disorder and might be harmful to self or others, then the proceedings for involuntary hospitalization shall be dismissed.
(h) Rights of the individual at the final commitment hearing; seven days’ notice to counsel required. —
(1) The individual shall be present at the final commitment hearing, and he or she, the applicant and all persons entitled to notice of the hearing shall be afforded an opportunity to testify and to present and cross-examine witnesses.
(2) If the individual has not retained counsel, the court or mental hygiene commissioner, at least six days prior to hearing, shall appoint a competent attorney and shall inform the individual of the name, address, and telephone number of his or her appointed counsel.
(3) The individual has the right to have an examination by an independent expert of his or her choice and to present testimony from the expert as a medical witness on his or her behalf. The cost of the independent expert is paid by the individual unless he or she is indigent.
(4) The individual may not be compelled to be a witness against himself or herself.
(i) Duties of counsel representing individual; payment of counsel representing indigent. —
(1) Counsel representing an individual shall conduct a timely interview, make investigation, and secure appropriate witnesses, be present at the hearing, and protect the interests of the individual.
(2) Counsel representing an individual is entitled to copies of all medical reports, psychiatric or otherwise.
(3) The circuit court, by order of record, may allow the attorney a reasonable fee not to exceed the amount allowed for attorneys in defense of needy persons as provided in §29-21-1 et seq. of this code.
(j) Conduct of hearing; receipt of evidence; no evidentiary privilege; record of hearing. —
(1) The circuit court or mental hygiene commissioner shall hear evidence from all interested parties in chamber, including testimony from representatives of the community mental health facility.
(2) The circuit court or mental hygiene commissioner shall receive all relevant and material evidence which may be offered.
(3) The circuit court or mental hygiene commissioner is bound by the rules of evidence promulgated by the Supreme Court of Appeals except that statements made to health care professionals appointed under subsection (g) of this section by the individual may be admitted into evidence by the health care professional’s testimony, notwithstanding failure to inform the individual that this statement may be used against him or her. A health care professional testifying shall bring all records pertaining to the individual to the hearing. The medical evidence obtained pursuant to an examination under this section, or §27-5-2 or §27-5-3 of this code, is not privileged information for purposes of a hearing pursuant to this section.
(4) All final commitment proceedings shall be reported or recorded, whether before the circuit court or mental hygiene commissioner, and a transcript made available to the individual, his or her counsel or the prosecuting attorney within 30 days if requested for the purpose of further proceedings. In any case where an indigent person intends to pursue further proceedings, the circuit court shall, by order entered of record, authorize, and direct the court reporter to furnish a transcript of the hearings.
(k) Requisite findings by the court. —
(1) Upon completion of the final commitment hearing and the evidence presented in the hearing, the circuit court or mental hygiene commissioner shall make findings as to the following based upon clear and convincing evidence:
(A) Whether the individual is mentally ill or has a substance use disorder;
(B) Whether, as a result of illness or substance use disorder, the individual is likely to cause serious harm to self or others if allowed to remain at liberty and requires continued commitment and treatment;
(C) Whether the individual is a resident of the county in which the hearing is held or currently is a patient at a mental health facility in the county; and
(D) Whether there is a less restrictive alternative than commitment appropriate for the individual that is appropriate and available. The burden of proof of the lack of a less restrictive alternative than commitment is on the person or persons seeking the commitment of the individual: Provided, That for any commitment to a state hospital as defined by §27-1-6 of this code, a specific finding shall be made that the commitment of, or treatment for, the individual requires inpatient hospital placement and that no suitable outpatient community-based treatment program exists that is appropriate and available in the individual’s area.
(2) The findings of fact shall be incorporated into the order entered by the circuit court and must be based upon clear, cogent, and convincing proof.
(l) Orders issued pursuant to final commitment hearing; entry of order; change in order of court; expiration of order. —
(1) Upon the requisite findings, the circuit court may order the individual to a mental health facility or state hospital for a period not to exceed 90 days except as otherwise provided in this subdivision. During that period and solely for individuals who are committed under §27-6A-1 et seq. of this code, the chief medical officer of the mental health facility or state hospital shall conduct a clinical assessment of the individual at least every 30 days to determine if the individual requires continued placement and treatment at the mental health facility or state hospital and whether the individual is suitable to receive any necessary treatment at an outpatient community-based treatment program. If at any time the chief medical officer, acting in good faith and in a manner consistent with the standard of care, determines that: (i) The individual is suitable for receiving outpatient community-based treatment; (ii) necessary outpatient community-based treatment is available in the individual’s area as evidenced by a discharge and treatment plan jointly developed by the department and the comprehensive community mental health center or licensed behavioral health provider; and (iii) the individual’s clinical presentation no longer requires inpatient commitment, the chief medical officer shall provide written notice to the court of record and prosecuting attorney as provided in subdivision (2) of this section that the individual is suitable for discharge. The chief medical officer may discharge the patient 30 days after the notice unless the court of record stays the discharge of the individual. In the event the court stays the discharge of the individual, the court shall conduct a hearing within 45 days of the stay, and the individual shall be thereafter discharged unless the court finds by clear and convincing evidence that the individual is a significant and present danger to self or others, and that continued placement at the mental health facility or state hospital is required.
If the chief medical officer determines that the individual requires commitment and treatment at the mental health facility or state hospital at any time for a period longer than 90 days, then the individual shall remain at the mental health facility or state hospital until the chief medical officer of the mental health facility or state hospital determines that the individual’s clinical presentation no longer requires further commitment and treatment. The chief medical officer shall provide notice to the court, the prosecuting attorney, the individual, and the individual’s guardian or attorney, or both, if applicable, that the individual requires commitment and treatment for a period in excess of 90 days and, in the notice, the chief medical officer shall describe how the individual continues to meet commitment criteria and the need for ongoing commitment and treatment. The court, prosecuting attorney, the individual, or the individual’s guardian or attorney, or both, if applicable, may request any information from the chief medical officer that the court or prosecuting attorney considers appropriate to justify the need for the individual’s ongoing commitment and treatment. The court may hold any hearing that it considers appropriate.
(2) Notice to the court of record and prosecuting attorney shall be provided by personal service or certified mail, return receipt requested. The chief medical officer shall make the following findings:
(A) Whether the individual has a mental illness or substance use disorder that does not require inpatient treatment, and the mental illness or serious emotional disturbance is in substantial remission;
(B) Whether the individual has the independent ability to manage safely the risk factors resulting from his or her mental illness or substance use disorder and is not likely to deteriorate to the point that the individual will pose a likelihood of serious harm to self or others without continued commitment and treatment;
(C) Whether the individual is likely to participate in outpatient treatment with a legal obligation to do so;
(D) Whether the individual is not likely to participate in outpatient treatment unless legally obligated to do so;
(E) Whether the individual is capable of surviving safely in freedom by himself or herself or with the help of willing and responsible family members, guardian, or friends; and
(F) Whether mandatory outpatient treatment is a suitable, less restrictive alternative to ongoing commitment.
(3) The individual may not be detained in a mental health facility or state hospital for a period in excess of 10 days after a final commitment hearing pursuant to this section unless an order has been entered and received by the facility.
(4) An individual committed pursuant to §27-6A-3 of this code may be committed for the period he or she is determined by the court to remain an imminent danger to self or others.
(5) If the commitment of the individual as provided under subdivision (1) of this subsection exceeds two years, the individual or his or her counsel may request a hearing and a hearing shall be held by the mental hygiene commissioner or by the circuit court of the county as provided in subsection (a) of this section.
(m) Dismissal of proceedings. —If the individual is discharged as provided in subsection (l) of this section, the circuit court or mental hygiene commissioner shall dismiss the proceedings.
(n) Immediate notification of order of hospitalization. — The clerk of the circuit court in which an order directing hospitalization is entered, if not in the county of the individual’s residence, shall immediately upon entry of the order forward a certified copy of the order to the clerk of the circuit court of the county of which the individual is a resident.
(o) Consideration of transcript by circuit court of county of individual’s residence; order of hospitalization; execution of order. —
(1) If the circuit court or mental hygiene commissioner is satisfied that hospitalization should be ordered but finds that the individual is not a resident of the county in which the hearing is held and the individual is not currently a resident of a mental health facility or state hospital, a transcript of the evidence adduced at the final commitment hearing of the individual, certified by the clerk of the circuit court, shall immediately be forwarded to the clerk of the circuit court of the county of which the individual is a resident. The clerk shall immediately present the transcript to the circuit court or mental hygiene commissioner of the county.
(2) If the circuit court or mental hygiene commissioner of the county of the residence of the individual is satisfied from the evidence contained in the transcript that the individual should be hospitalized as determined by the standard set forth in subdivision one of this subsection, the circuit court shall order the appropriate hospitalization as though the individual had been brought before the circuit court or its mental hygiene commissioner in the first instance.
(3) This order shall be transmitted immediately to the clerk of the circuit court of the county in which the hearing was held who shall execute the order promptly.
(p) Order of custody to responsible person. — In lieu of ordering the individual to a mental health facility or state hospital, the circuit court may order the individual delivered to some responsible person who will agree to take care of the individual and the circuit court may take from the responsible person a bond in an amount to be determined by the circuit court with condition to restrain and take proper care of the individual until further order of the court.
(q) Individual not a resident of this state. — If the individual is found to be mentally ill or to have a substance use disorder by the circuit court or mental hygiene commissioner is a resident of another state, this information shall be immediately given to the Secretary of the Department of Health and Human Resources, or to his or her designee, who shall make appropriate arrangements for transfer of the individual to the state of his or her residence conditioned on the agreement of the individual, except as qualified by the interstate compact on mental health.
(r) Report to the Secretary of the Department of Health and Human Resources. —
(1) The chief medical officer of a mental health facility or state hospital admitting a patient pursuant to proceedings under this section shall immediately make a report of the admission to the Secretary of the Department of Health and Human Resources or to his or her designee.
(2) Whenever an individual is released from custody due to the failure of an employee of a mental health facility or state hospital to comply with the time requirements of this article, the chief medical officer of the mental health or state hospital facility shall immediately, after the release of the individual, make a report to the Secretary of the Department of Health and Human Resources or to his or her designee of the failure to comply.
(s) Payment of some expenses by the state; mental hygiene fund established; expenses paid by the county commission. —
(1) The state shall pay the commissioner’s fee and the court reporter fees that are not paid and reimbursed under §29-21-1 et seq. of this code out of a special fund to be established within the Supreme Court of Appeals to be known as the Mental Hygiene Fund.
(2) The county commission shall pay out of the county treasury all other expenses incurred in the hearings conducted under the provisions of this article whether or not hospitalization is ordered, including any fee allowed by the circuit court by order entered of record for any physician, psychologist, and witness called by the indigent individual. The copying and mailing costs associated with providing notice of the final commitment hearing and issuance of the final order shall be paid by the county where the involuntary commitment petition was initially filed.
(3) Effective July 1, 2022, the Department of Health and Human Resources shall reimburse the Sheriff, the Department of Corrections and Rehabilitation, or other law-enforcement agency for the actual costs related to transporting a patient who has been involuntary committed.
(a) The State Boxing Commission, heretofore created, is hereby continued and renamed the State Athletic Commission. The commission shall consist of five persons appointed by the Governor, by and with the consent of the Senate, no more than three of whom shall belong to the same political party and no two of whom shall be residents of the same county at the same time. One member shall have at least three years of experience in the sport of boxing. One member shall have at least three years of experience in the sport of mixed martial arts. One member shall have at least three years of experience in the health care industry as a licensed physician, registered nurse, nurse practitioner, or physicians’ physician assistant associate. Two members shall be citizen members who are not licensed under the provisions of this article and who do not perform any services related to the persons regulated under this article. The members shall serve without pay except that each member shall receive $100 for each day that he or she attends and participates in a public meeting in which the commission makes or deliberates towards an official act: Provided, That the compensation a member may receive pursuant to this subsection during each fiscal year may not exceed $2,000.
(b) At the expiration of the term of each member, his or her successor shall be appointed by the Governor for a term of four years. If there is a vacancy in the board, the vacancy shall likewise be filled by appointment by the Governor and the Governor shall likewise have the power to remove any commissioner at his or her pleasure.
(c) Any three members of the commission shall constitute a quorum for the exercise of the power or authority conferred upon it. The members of the commission shall, at the first meeting after their appointment, elect one of their number chairman of the commission and another of their number secretary of the commission, shall adopt a seal for the commission, and shall make such rules for the administration of their office, not inconsistent herewith, as they may consider expedient; and they may hereafter amend or abrogate such rules.
(d) The concurrence of at least three commissioners is necessary to render a choice or decision of the commission except that, notwithstanding the requirements of the Open Governmental Proceedings Act, §6-9a-1 et seq. of this code, a quorum of the commission may vote in writing to approve changes to the roster of participants or the roster of officials if the need for the substitution(s) is made known to the commission within 48 hours of an event that the commission previously approved: Provided, That the substitution(s) is necessary to effectuate the match: Provided, however, That the written decision of the commission is presented at the next scheduled meeting of the commission and recorded in its minutes.
As used in this article:
(a) "Applicant" means any emergency medical service applicant, law-enforcement applicant or medical services applicant, that is registered as a volunteer of the nonprofit organization, making application for a nonprofit volunteer permit under the provisions of this article.
(b) "Appropriate licensing agency" means the board, department, division or other agency in each jurisdiction charged with the licensing, certification or permitting of persons performing services of the nature and kind described or duties provided for in this article.
(c) "Emergency medical service applicant" means a person authorized to provide emergency medical services in West Virginia, or in another state who but for this article would be required to obtain a certification from the Commissioner of the Bureau for Public Health pursuant to article eight, chapter sixteen of this code to perform emergency medical services in this state.
(d) "Law-enforcement applicant" means a person authorized to work as a law-enforcement officer in West Virginia, or in another state who but for this article would be required to obtain authorization pursuant to article twenty-nine, chapter thirty of this code to work as a law-enforcement officer in this state: Provided, That any person authorized to work as a law-enforcement officer in another state shall have completed a training program approved by the governing authority of a political subdivision in order to work as a law-enforcement officer in that state.
(e) "Medical services applicant" means a person authorized to provide medical services in West Virginia, or in another state who but for this article would be required to obtain authorization to practice in this state, and who is a:
(1) Practitioner of medicine, surgery or podiatry as defined in article three, chapter thirty of this code;
(2) Physician assistant associate as defined in section three, article three, chapter thirty of this code;
(3) Chiropractor as defined in section three, article sixteen, chapter thirty of this code;
(4) Dentist or dental assistant as defined in article four, chapter thirty of this code;
(5) Nurse as defined in article seven or seven-a, chapter thirty of this code;
(6) Nurse practitioner as defined in section one, article four-b, chapter nine of this code;
(7) Occupational therapist as defined in section three, article twenty-eight, chapter thirty of this code;
(8) Practitioner of optometry as defined in section three, article eight, chapter thirty of this code;
(9) Osteopathic physician or surgeon as defined in article fourteen, chapter thirty of this code;
(10) Osteopathic physician assistant associate as defined in article fourteen-a, chapter thirty of this code;
(11) Pharmacist as defined in article five, chapter thirty of this code;
(12) Physical therapist as defined in article twenty, chapter thirty of this code;
(13) Professional counselor as defined in section three, article thirty-one, chapter thirty of this code;
(14) Practitioner of psychology or school psychologist as defined in section two, article twenty-one, chapter thirty of this code;
(15) Radiologic technologist, nuclear medicine technologist or practitioner of medical imaging and radiation therapy technology as defined in section four, article twenty-three, chapter thirty of this code; and
(16) Social worker licensed by the state Board of Social Work Examiners pursuant to article thirty, chapter thirty of this code.
(f) "Nonprofit volunteer permit" or "permit" means a permit issued to an applicant pursuant to the provisions of this article.
(g) "Nonprofit volunteer permittee" or "permittee" means a person holding a nonprofit volunteer permit issued under the provisions of this article.
(h) "Nonprofit youth organization" or "organization" means any nonprofit organization, including any subsidiary, affiliated or other related entity within its corporate or business structure, that has been chartered by the United States Congress to help train young people to do things for themselves and others, and that has established an area of at least six thousand contiguous acres within West Virginia in which to provide adventure or recreational activities for these young people and others.
(i) "Nonprofit volunteer organization medical director" means an individual licensed in West Virginia as a practitioner of medicine or surgery pursuant to article three, chapter thirty of this code, or an individual licensed in West Virginia as an osteopathic physician or surgeon pursuant to article fourteen, chapter thirty of this code, that has been designated by the nonprofit volunteer organization to serve as the medical director for an event or program offered by the organization.
The following words have the following meaning:
(a) "Credentialing" means obtaining, verifying and assessing the qualifications of a health practitioner to provide treatment, care or services in or for a health facility.
(b) "Disaster relief organization" means an entity that provides emergency or disaster relief services that include health or veterinary services provided by volunteer health practitioners and that:
(1) Is designated or recognized as a provider of those services pursuant to a disaster response and recovery plan adopted by an agency of the federal government or by the Governor of this state; or
(2) Regularly plans and conducts its activities in coordination with an agency of the federal government or any agency designated by the Governor.
(c) "Emergency" means an event or condition that is an emergency, disaster or public health emergency pursuant to a declaration of the Governor or any agency designated by the Governor.
(d) "Emergency declaration" means a declaration of emergency issued by the Governor or his or her designee pursuant to the laws of this state.
(e) "Emergency Management Assistance Compact" means the interstate compact approved by Congress by Public Law No. 104-321,110 Stat. 3877.
(f) "Entity" means a person other than an individual.
(g) "Health facility" means an entity licensed pursuant to the laws of this or another state to provide health or veterinary services.
(h) "Health practitioner" means an individual licensed pursuant to the laws of this or another state to provide health or veterinary services. For the purposes of this article, a health practitioner includes a physician, a physician assistant associate, a dentist, a dental hygienist, a pharmacist, a pharmacy technician, a pharmacy intern, a registered professional nurse, a licensed practical nurse, an optometrist, an osteopathic physician, a chiropractor, a physical therapist, a psychologist, an occupational therapist and a veterinarian.
(i) "Health services" means the provision of treatment, care, advice or guidance, or other services or supplies, related to the health or death of individuals or human populations, to the extent necessary to respond to an emergency, including:
(1) The following, concerning the physical or mental condition or functional status of an individual or affecting the structure or function of the body:
(A) Preventive, diagnostic, therapeutic, rehabilitative, maintenance or palliative care; and
(B) Counseling, assessment, procedures or other services;
(2) Sale or dispensing of a drug, a device, equipment or another item to an individual in accordance with a prescription; and
(3) Funeral, cremation, cemetery or other mortuary services.
(j) "Host entity" means an entity operating in this state which uses volunteer health practitioners to respond to an emergency.
(k) "License" means authorization and licensing by an appropriate licensing board to engage in health or veterinary services that are unlawful without the license. The term includes authorization pursuant to the laws of this state to an individual to provide health or veterinary services based upon a national certification issued by a public or private entity.
(l) "Person" means an individual, corporation, business trust, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency or instrumentality or any other legal or commercial entity.
(m) "Privileging" means the authorizing by an appropriate authority, such as a governing body, of a health practitioner to provide specific treatment, care or services at a health facility subject to limits based on factors that include license, education, training, experience, competence, health status and specialized skill.
(n) "Scope of practice" means the extent of the authorization to provide health or veterinary services granted to a health practitioner by a license issued to the practitioner in the state in which the principal part of the practitioner’s services is rendered, including any conditions imposed by the licensing authority.
(o) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States.
(p) "Veterinary services" means the provision of treatment, care, advice or guidance or other services or supplies related to the health or death of an animal or to animal populations, to the extent necessary to respond to an emergency, including:
(1) Diagnosis, treatment or prevention of an animal disease, injury or other physical or mental condition by the prescription, administration or dispensing of a vaccine, medicine, surgery or therapy;
(2) Use of a procedure for reproductive management; and
(3) Monitoring and treatment of animal populations for diseases that have spread or demonstrate the potential to spread to humans.
(q) "Volunteer health practitioner" means a health practitioner who provides health or veterinary services, whether or not the practitioner receives compensation for those services. The term does not include a practitioner who receives compensation pursuant to a preexisting employment relationship with a host entity or affiliate which requires the practitioner to provide health services in this state, unless the practitioner is not a resident of this state and is employed by a disaster relief organization providing services in this state while an emergency declaration is in effect.
(a) A board referred to in this chapter shall establish continuing education requirements as a prerequisite to license renewal. A board shall develop continuing education criteria appropriate to its discipline, which shall include, but not be limited to, course content, course approval, hours required and reporting periods.
(b) Notwithstanding any other provision of this code or the provision of a legislative rule to the contrary, each person issued a license to practice medicine and surgery, a license to practice podiatry or licensed as a physician assistant associate by the West Virginia Board of Medicine; each person issued a license to practice dentistry by the West Virginia Board of Dental Examiners, each person issued a license to practice optometry by the West Virginia Board of Optometry, each person licensed as a pharmacist by the West Virginia Board of Pharmacy, each person licensed to practice registered professional nursing or licensed as an advanced nurse practitioner by the West Virginia Board of Examiners for Registered Professional Nurses, each person licensed as a licensed practical nurse by the West Virginia State Board of Examiners for Licensed Practical Nurses and each person licensed to practice medicine and surgery as an osteopathic physician and surgeon or licensed or certified as an osteopathic as physician assistant associate by the West Virginia Board of Osteopathy shall complete drug diversion training, best-practice prescribing of controlled substances training, and training on prescribing and administration of an opioid antagonist and other relevant trainings as promulgated by the appropriate licensing board, as the trainings are established by his or her respective licensing board, if that person prescribes, administers or dispenses a controlled substance, as that term is defined in section one hundred one, article one, chapter sixty-a of this code.
(1) Notwithstanding any other provision of this code or the provision of any legislative rule to the contrary, the West Virginia Board of Medicine, the West Virginia Board of Dental Examiners, the West Virginia Board of Optometry, the West Virginia Board of Pharmacy, the West Virginia Board of Examiners for Registered Professional Nurses, the West Virginia State Board of Examiners for Licensed Practical Nurses and the West Virginia Board of Osteopathy shall establish continuing education requirements and criteria appropriate to their respective discipline on the subject of drug diversion training, best-practice prescribing of controlled substances training and prescribing and administration of an opioid antagonist training for each person issued a license or certificate by their respective board who prescribes, administers or dispenses a controlled substance, as that term is defined in section one hundred one, article one, chapter sixty-a of this code, and shall develop a certification form pursuant to subdivision (b)(2) of this section.
(2) Each person who receives his or her initial license or certificate from any of the boards set forth in subsection (b) of this section shall complete the continuing education requirements set forth in subsection (b) of this section within one year of receiving his or her initial license from that board and each person licensed or certified by any of the boards set forth in subsection (b) of this section who has held his or her license or certificate for longer than one year shall complete the continuing education requirements set forth in subsection (b) of this section as a prerequisite to each license renewal: Provided, That a person subject to subsection (b) of this section may waive the continuing education requirements for license renewal set forth in subsection (b) of this section if he or she completes and submits to his or her licensing board a certification form developed by his or her licensing board attesting that he or she has not prescribed, administered or dispensed a controlled substance, as that term is defined in section one hundred one, article one, chapter sixty-a of this code, during the entire applicable reporting period.
(c) Notwithstanding any other provision of this code or the provision of any legislative rule to the contrary, each person licensed to practice registered professional nursing or licensed as an advanced nurse practitioner by the West Virginia Board of Examiners for Registered Professional Nurses, each person licensed as a licensed practical nurse by the West Virginia State Board of Examiners for Licensed Practical Nurses, each person licensed to practice psychology by the Board of Examiners of Psychologists, each person licensed to practice social work by the West Virginia Board of Social Work and each person licensed to practice professional counseling by the West Virginia Board of Examiners in Counseling shall complete two hours of continuing education for each reporting period on mental health conditions common to veterans and family members of veterans, as the continuing education is established by his or her respective licensing board. In cooperation with the Secretary of the Department of Veterans’ Assistance, the continuing education shall include training on inquiring about whether the patients are veterans or family members of veterans, and screening for conditions such as post-traumatic stress disorder, risk of suicide, depression and grief and prevention of suicide. The two hours shall be part of the total hours of continuing education required by each board and not two additional hours.
The purpose of this article is to provide for the licensure and professional discipline of physicians and podiatrists and for the licensure and professional discipline of physician assistants associates and to provide a professional environment that encourages the delivery of quality medical services within this state.
The West Virginia Board of Medicine has assumed, carried on, and succeeded to all the duties, rights, powers, obligations, and liabilities heretofore belonging to or exercised by the Medical Licensing Board of West Virginia. All the rules, orders, rulings, licenses, certificates, permits, and other acts and undertakings of the Medical Licensing Board of West Virginia as heretofore constituted have continued as those of the West Virginia Board of Medicine until they expired or were amended, altered, or revoked. The board remains the sole authority for the issuance of licenses to practice medicine and surgery, to practice podiatry, and to practice as physician assistants associates in this state under the supervision of physicians licensed under this article. The board shall continue to be a regulatory and disciplinary body for the practice of medicine and surgery, the practice of podiatry, and for physician assistants associates in this state.
The board shall consist of 15 members. One member shall be the state health officer ex officio, with the right to vote as a member of the board. The other 14 members shall be appointed by the Governor, with the advice and consent of the Senate. Eight of the members shall be appointed from among individuals holding the degree of doctor of medicine, and one shall hold the degree of doctor of podiatric medicine. Two members shall be physician assistants associates licensed by the board. Each of these members must be duly licensed to practice his or her profession in this state on the date of appointment and must have been licensed and actively practicing that profession for at least five years immediately preceding the date of appointment. Three lay members shall be appointed to represent health care consumers. Neither the lay members nor any person of the lay members’ immediate families shall be a provider of or be employed by a provider of health care services. The state health officer’s term shall continue for the period that he or she holds office as state health officer. Each other member of the board shall be appointed to serve a term of five years: Provided, That the members of the Board of Medicine holding appointments on the effective date of this section shall continue to serve as members of the Board of Medicine until the expiration of their term unless sooner removed. Each term shall begin on October 1 of the applicable year and a member may not be appointed to more than two consecutive full terms on the board.
A person is not eligible for membership on the board who is a member of any political party executive committee or, with the exception of the state health officer, who holds any public office or public employment under the federal government or under the government of this state or any political subdivision thereof.
In making appointments to the board, the Governor shall, so far as practicable, select the members from different geographical sections of the state. When a vacancy on the board occurs and less than one year remains in the unexpired term, the appointee shall be eligible to serve the remainder of the unexpired term and two consecutive full terms on the board.
No member may be removed from office by the Governor except for official misconduct, incompetence, neglect of duty, or gross immorality: Provided, That the expiration, surrender, or revocation of the professional license by the board of a member of the board shall cause the membership to immediately and automatically terminate.
(a) The board is autonomous and, in accordance with this article, shall determine qualifications of applicants for licenses to practice medicine and surgery, to practice podiatry, and to practice as a physician assistant associate for a physician licensed under this article, and shall issue licenses to qualified applicants and shall regulate the professional conduct and discipline of such individuals. In carrying out its functions, the board may:
(1) Adopt such rules as are necessary to carry out the purposes of this article;
(2) Hold hearings and conduct investigations, subpoena witnesses and documents and administer oaths;
(3) Institute proceedings in the courts of this state to enforce its subpoenas for the production of witnesses and documents and its orders and to restrain and enjoin violations of this article and of any rules promulgated under it;
(4) Employ investigators, attorneys, hearing examiners, consultants and such other employees as may be necessary, who shall be exempt from the classified service of the Division of Personnel and who shall serve at the will and pleasure of the board. In addition, all personnel employed through the Department of Health and Human Resources on June 30, 2009, to provide services for the board are hereby transferred to the board effective July 1, 2009. However, the employment, salary, benefits or position classification of any person transferred under this section may not be reduced or diminished by reason of this section. All persons transferred shall retain their coverage under the classified service of the Division of Personnel and all matters relating to job classification, job tenure and conditions of employment shall remain in force and effect from and after the date of this section, to the same extent as if this section had not been reenacted. Also, nothing herein shall prohibit the disciplining or dismissal of any employee for cause.
(5) Enter into contracts and receive and disburse funds according to law;
(6) Establish and certify standards for the supervision and certification of physician assistants associates;
(7) Authorize medical and podiatry corporations in accordance with the limitations of section fifteen of this article to practice medicine and surgery or podiatry through duly licensed physicians or podiatrists; and
(8) Perform such other duties as are set forth in this article or otherwise provided for in this code.
(b) The board shall submit an annual report of its activities to the Legislature. The report shall include a statistical analysis of complaints received, charges investigated, charges dismissed after investigation, the grounds for each such dismissal and disciplinary proceedings and disposition.
(a) The board shall maintain a permanent record of the names of all physicians, podiatrists, and physician assistants associates, licensed, certified or otherwise lawfully practicing in this state and of all persons applying to be so licensed to practice, along with an individual historical record for each such individual containing reports and all other information furnished the board under this article or otherwise. Such record may include, in accordance with rules established by the board, additional items relating to the individual's record of professional practice that will facilitate proper review of such individual's professional competence.
(b) Upon a determination by the board that any report submitted to it is without merit, the report shall be expunged from the individual's historical record.
(c) A physician, podiatrist, physician assistant associate or applicant, or authorized representative thereof, has the right, upon request, to examine his or her own individual historical record maintained by the board pursuant to this article and to place into such record a statement of reasonable length of his or her own view of the correctness or relevance of any information existing in such record. Such statement shall at all times accompany that part of the record in contention.
(d) A physician, podiatrist, physician assistant associate or applicant has the right to seek through court action the amendment or expungement of any part of his or her historical record.
(e) A physician, podiatrist, physician assistant associate or applicant shall be provided written notice within 30 days of the placement and substance of any information in his or her individual historical record that pertains to him or her and that was not submitted to the board by him or her.
(f) Except for information relating to biographical background, education, professional training and practice, a voluntary agreement entered into pursuant to subsection (h) of this section and which has been disclosed to the board, prior disciplinary action by any entity, or information contained on the licensure application, the board shall expunge information in an individual's historical record unless it has initiated a proceeding for a hearing upon such information within two years of the placing of the information into the historical record.
(g) Orders of the board relating to disciplinary action against a physician, podiatrist or physician assistant associate are public information.
(h)(1) In order to encourage voluntary participation in monitored alcohol chemical dependency or major mental illness programs and in recognition of the fact that major mental illness, alcoholism and chemical dependency are illnesses, a physician, podiatrist or physician assistant associate licensed, certified or otherwise lawfully practicing in this state or applying for a license to practice in this state may enter into a voluntary agreement with the physician health program as defined in section two, article three-d of this chapter. The agreement between the physician, podiatrist or physician assistant associate and the physician health program shall include a jointly agreed upon treatment program and mandatory conditions and procedures to monitor compliance with the program of recovery.
(2) Any voluntary agreement entered into pursuant to this subsection shall not be considered a disciplinary action or order by the board, shall not be disclosed to the board and shall not be public information if:
(A) Such voluntary agreement is the result of the physician, podiatrist or physician assistant associate self-enrolling or voluntarily participating in the board-designated physician health program;
(B) The board has not received nor filed any written complaints regarding said physician, podiatrist or physician assistant associate relating to an alcohol, chemical dependency or major mental illness affecting the care and treatment of patients, nor received any reports pursuant to subsection (b), section fourteen of this article relating to an alcohol or chemical dependency impairment; and
(C) The physician, podiatrist or physician assistant associate is in compliance with the voluntary treatment program and the conditions and procedures to monitor compliance.
(3) If any physician, podiatrist or physician assistant associate enters into a voluntary agreement with the board-approved physician health program, pursuant to this subsection and then fails to comply with or fulfill the terms of said agreement, the physician health program shall report the noncompliance to the board within twenty-four hours. The board may initiate disciplinary proceedings pursuant to subsection (a), section fourteen of this article or may permit continued participation in the physician health program or both.
(4) If the board has not instituted any disciplinary proceeding as provided for in this article, any information received, maintained or developed by the board relating to the alcohol or chemical dependency impairment of any physician, podiatrist or physician assistant associate and any voluntary agreement made pursuant to this subsection shall be confidential and not available for public information, discovery or court subpoena, nor for introduction into evidence in any medical professional liability action or other action for damages arising out of the provision of or failure to provide health care services.
In the board's annual report of its activities to the Legislature required under section seven of this article, the board shall include information regarding the success of the voluntary agreement mechanism established therein: Provided, That in making such report, the board shall not disclose any personally identifiable information relating to any physician, podiatrist or physician assistant associate participating in a voluntary agreement as provided herein.
Notwithstanding any of the foregoing provisions, the board may cooperate with and provide documentation of any voluntary agreement entered into pursuant to this subsection to licensing boards in other jurisdictions of which the board has become aware and may be appropriate.
(i) Any physician-patient privilege does not apply in any investigation or proceeding by the board or by a medical peer review committee or by a hospital governing board with respect to relevant hospital medical records, while any of the aforesaid are acting within the scope of their authority: Provided, That the disclosure of any information pursuant to this provision shall not be considered a waiver of any such privilege in any other proceeding.
(a) For purposes of this section:
(1) "Administrative medicine" means administration or management related to the practice of medicine or to the delivery of health care services using the medical knowledge, skill, and judgment of a licensed physician that may affect the health of the public or medical research, excluding clinical trials on humans. Administrative medicine does not include the authority to practice clinical medicine; examine, care for, or treat patients; prescribe medications, including controlled substances; or direct or delegate medical acts or prescriptive authority to others.
(2) "Administrative medicine license" means a medical license restricted to the practice of administrative medicine. A physician with an administrative medicine license may manage the integration of clinical medicine, strategy, operations, and other business activities related to the delivery of health care services, advise organizations, both public and private, on health care matters; authorize and deny financial payments for care; organize and direct research programs; review care provided for quality; and perform other similar duties that do not require or involve direct patient care.
(3) "Clinical medicine" includes, but is not limited to:
(A) Direct involvement in patient evaluation, diagnosis, and treatment;
(B) Prescribing, administering, or dispensing any medication;
(C) Delegating medical acts, service, or prescriptive authority; and
(D) Supervision of physicians and/or podiatric physicians who practice clinical medicine, physician assistants associates who render medical services in collaboration with physicians, or the clinical practice of any other medical professional.
(b) The board may issue an administrative medicine license to a physician who:
(1) Files a complete application;
(2) Pays the applicable fee;
(3) Meets all qualifications and criteria for licensure set forth in §30-3-10 of this code and the board’s legislative rules; and
(4) Demonstrates competency to practice administrative medicine.
(c) Administrative medicine licensees may not practice clinical medicine.
(d) A physician applying to renew an administrative medicine license must pay the same fees and meet the same requirements for renewing an active status license, including submission of certification of participation in and successful completion of a minimum of 50 hours of continuing medical education satisfactory to the board during the preceding two-year period.
(e) The board may deny an application for an administrative medicine and may discipline an administrative medicine licensee who, after a hearing, has been adjudged by the board as unqualified due to any reason set forth in §30-3-14 of this code or the board’s rules and pursuant to the processes set forth therein.
(f) The board shall propose emergency rules pursuant to the provisions of §29A-3-1 et seq. of this code to implement the provisions of this section.
(a) Unlawful acts. — It is unlawful for any corporation to practice or offer to practice medicine, surgery, podiatric medicine, or to perform medical acts through one or more physician assistants associates in this state without a certificate of authorization issued by the board designating the corporation as an authorized medical corporation.
(b) Certificate of authorization for in-state medical corporation. —The board may issue a certificate of authorization for a medical corporation to one or more individuals licensed by the board. Licensees of the West Virginia Board of Osteopathic Medicine may join with licensees of the board to receive a certificate of authorization from the board. Eligible licensees may apply for a certificate of authorization by:
(1) Filing a written application with the board on a form prescribed by the board;
(2) Furnishing satisfactory proof to the board that each shareholder of the proposed medical or podiatry corporation is a licensed physician pursuant to this article, §30-3E-1 et seq., or §30-14-1 et seq. of this code; and
(3) Submitting applicable fees which are not refundable.
(c) Certificate of authorization for out-of-state medical corporation. — A medical corporation formed outside of this state for the purpose of engaging in the practice of medicine, surgery, and/or podiatric medicine may receive a certificate of authorization from the board to be designated a foreign medical corporation by:
(1) Filing a written application with the board on a form prescribed by the board;
(2) Furnishing satisfactory proof to the board that the medical corporation has received a certificate of authorization or similar authorization from the appropriate authorities as a medical corporation or professional corporation in its state of incorporation and is currently in good standing with that authority;
(3) Furnishing satisfactory proof to the board that at least one shareholder of the proposed medical corporation is a licensed physician or podiatric physician pursuant to this article and is designated as the corporate representative for all communications with the board regarding the designation and continuing authorization of the corporation as a foreign medical corporation;
(4) Furnishing satisfactory proof to the board that all of the medical corporation’s shareholders are licensed physicians, podiatric physicians, or physician assistants associates in one or more states and submitting a complete list of the shareholders, including each shareholder’s name, their state or states of licensure, and their license number(s); and
(5) Submitting applicable fees which are not refundable.
(d) Notice of certificate of authorization to Secretary of State. — When the board issues a certificate of authorization to a medical corporation, then the board shall notify the Secretary of State that a certificate of authorization has been issued. When the Secretary of State receives a notification from the board, he or she shall attach that certificate of authorization to the corporation application and, upon compliance by the corporation with the pertinent provisions of this code, shall notify the incorporators that the medical corporation, through licensed physicians, podiatrists, and/or physician assistants associates may engage in the practice of medicine, surgery, or the practice of podiatry in West Virginia.
(e) Authorized practice of medical corporation. — An authorized medical corporation may only practice medicine and surgery through individual physicians, podiatric physicians, or physician assistants associates licensed to practice medicine and surgery in this state. Physicians, podiatric physicians, and physician assistants associates may be employees rather than shareholders of a medical corporation, and nothing herein requires a license for or other legal authorization of, any individual employed by a medical corporation to perform services for which no license or other legal authorization is otherwise required.
(f) Renewal of certificate of authorization. — A medical corporation holding a certificate of authorization shall register biennially, on or before the expiration date on its certificate of authorization, on a form prescribed by the board, and pay a biennial fee. If a medical corporation does not timely renew its certificate of authorization, then its certificate of authorization automatically expires.
(g) Renewal for expired certificate of authorization. — A medical corporation whose certificate of authorization has expired may reapply for a certificate of authorization by submitting a new application and application fee in conformity with subsection (b) or (c) of this section.
(h) Ceasing operation - In-state medical corporation. — A medical corporation formed in this state and holding a certificate of authorization shall cease to engage in the practice of medicine, surgery, or podiatry when notified by the board that:
(1) One of its shareholders is no longer a duly licensed physician, podiatric physician, or physician assistant associate in this state; or
(2) The shares of the medical corporation have been sold or transferred to a person who is not licensed by the board or the Board of Osteopathic Medicine. The personal representative of a deceased shareholder shall have a period, not to exceed 12 months from the date of the shareholder’s death, to transfer the shares. Nothing herein affects the existence of the medical corporation or its right to continue to operate for all lawful purposes other than the professional practice of licensed physicians, podiatric physicians, and physician assistants associates.
(i) Ceasing operation - Out-of-state medical corporation. — A medical corporation formed outside of this state and holding a certificate of authorization shall immediately cease to engage in practice in this state if:
(1) The corporate shareholders no longer include at least one shareholder who is licensed to practice in this state pursuant to this article;
(2) The corporation is notified that one of its shareholders is no longer a licensed physician, podiatric physician, or physician assistant associate; or
(3) The shares of the medical corporation have been sold or transferred to a person who is not a licensed physician, podiatric physician, or physician assistant associate. The personal representative of a deceased shareholder shall have a period, not to exceed 12 months from the date of the shareholder’s death, to transfer the shares. In order to maintain its certificate of authorization to practice medicine and surgery, podiatric medicine, or to perform medical acts through one or more physician assistants associates during the 12-month period, the medical corporation shall, at all times, have at least one shareholder who is licensed in this state pursuant to this article. Nothing herein affects the existence of the medical corporation or its right to continue to operate for all lawful purposes other than the professional practice of licensed physicians, podiatric physicians, and physician assistants associates.
(j) Notice to Secretary of State. — Within 30 days of the expiration, revocation, or suspension of a certificate of authorization by the board, the board shall submit written notice to the Secretary of State.
(k) Unlawful acts. — It is unlawful for any corporation to practice or offer to practice medicine, surgery, podiatric medicine, or to perform medical acts through one or more physician assistants associates after its certificate of authorization has expired or been revoked, or if suspended, during the term of the suspension.
(l) Application of section. — Nothing in this section is meant or intended to change in any way the rights, duties, privileges, responsibilities, and liabilities incident to the physician-patient or podiatrist-patient relationship, nor is it meant or intended to change in any way the personal character of the practitioner-patient relationship. Nothing in this section shall be construed to require a hospital licensed pursuant to §16-5B-1 et seq. of this code to obtain a certificate of authorization from the board so long as the hospital does not exercise control of the independent medical judgment of physicians and podiatric physicians licensed pursuant to this article.
(m) Court evidence. — A certificate of authorization issued by the board to a corporation to practice medicine and surgery, podiatric medicine, or to perform medical acts through one or more physician assistants associates in this state that has not expired, been revoked, or suspended is admissible in evidence in all courts of this state and is prima facie evidence of the facts stated therein.
(n) Penalties. — Any officer, shareholder, or employee of a medical corporation who violates this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 per violation.
For the purposes of this article, the following words and terms have the meanings ascribed to them, unless the context clearly indicates otherwise.
(1) "Boards" mean the West Virginia Board of Medicine and Board of Osteopathy.
(2) "Major mental illness" means a diagnosis of a mental disorder within the axis of psychotic or affective or mood, or alcohol or chemical abuse, or alcohol or chemical dependency, as stipulated in the International Code of Diagnosis.
(3) "Physician and physician assistant associate" mean those health care professionals licensed by the West Virginia Board of Medicine or the West Virginia Board of Osteopathy.
(4) "Podiatrist" means those individuals licensed by the West Virginia Board of Medicine to undertake the practice of podiatry.
(5) "Qualifying illness" means the diagnosis of alcohol or substance abuse or alcohol or substance dependency or major mental illness.
(a) The boards are authorized to designate one or more physician health programs. To be eligible for designation by the boards, a physician health program shall:
(1) Agree to make their services available to all licensed West Virginia physicians, podiatrists and physicians' assistants associates with a qualifying illness;
(2) Provide for the education of physicians, podiatrists and physicians' assistants associates with respect to the recognition and treatment of alcohol, chemical dependency and mental illness and the availability of the physician health program for qualifying illnesses;
(3) Offer assistance to any person in referring a physician, podiatrist or physicians' assistant associate for purposes of assessment or treatment or both for a qualifying illness;
(4) Monitor the status of a physician, podiatrist or physicians' assistant associate who enters treatment for a qualifying illness pursuant to a written, voluntary agreement during treatment;
(5) Monitor the compliance of a physician, podiatrist or physicians' assistant associate who enters into a written, voluntary agreement for a qualifying illness with the physician health program setting forth a course for recovery;
(6) Agree to accept referrals from the boards to provide monitoring services pursuant to a board order; and
(7) Include such other requirements as the boards deem necessary.
(b) A designated physician health program shall:
(1) Set and collect reasonable fees, grants and donations for administration and services provided;
(2) Work collaboratively with the boards to develop model compliance agreements;
(3) Work collaboratively with the boards to identify qualified providers of services as may be needed by the individuals participating in the physician health program;
(4) Report to the boards no less than annually, statistics including the number of individuals served by license held; the number of compliant individuals; the number of individuals who have successfully completed their agreement period; and the number of individuals reported to a particular board for suspected noncompliance: Provided, That in making such report the physician health program shall not disclose any personally identifiable information relating to any physician, podiatrist or physician assistant associate participating in a voluntary agreement as provided herein.
(c) The fact that a physician, physician's assistant associate or podiatrist is participating in a designated physician health program is confidential, as is all physicians, podiatrists or physicians assistants associates patient information, acquired, created or used by the physician health program, and it shall remain confidential and may not be subject to discovery or subpoena in a civil case. The disclosure of participation and noncompliance to the appropriate board, as required by a compliance agreement, waives the confidentiality as to the appropriate board for disciplinary purposes.
(d) The physician health program and all persons engaged in physician health program activities are immune from civil liability and no civil action may be brought or maintained while the physician health program and all persons engaged in physician health program activities are acting in good faith and within the scope of their duties.
(e) The boards are immune from civil liability and no civil action may be brought or maintained against the boards or the state for an injury alleged to have been the result of the activities of the physician health program or the boards referral of an individual to the physician health program when they are acting in good faith and within the scope of their duties.
The West Virginia Board of Medicine and the West Virginia Board of Osteopathy have the sole discretion to designate physician health programs for licensees of the respective boards and no provision of this article may be construed to entitle any physician, podiatrist or physician assistant associate to the creation or designation of a physician health program for any individual qualifying illness or group of qualifying illnesses.
As used in this article:
"Approved program" means an educational program for physician assistants associates approved and accredited by the Accreditation Review Commission on Education for the Physician Assistant Associate or its successor. Prior to 2001, approval and accreditation would have been by either the Committee on Allied Health Education and Accreditation or the Commission on Accreditation of Allied Health Education Programs.
"Boards" means the West Virginia Board of Medicine and the West Virginia Board of Osteopathic Medicine.
"Chronic condition" means a condition which lasts three months or more, generally cannot be prevented by vaccines, can be controlled but not cured by medication, and does not generally disappear. These conditions include, but are not limited to, arthritis, asthma, cardiovascular disease, cancer, diabetes, epilepsy and seizures, and obesity.
"Collaborating physician" means a doctor of medicine, osteopathy, or podiatry fully licensed, by the appropriate board in this state, without restriction or limitation, who collaborates with physician assistants associates.
"Collaboration" means overseeing the activities of the medical services rendered by a physician assistant associate. Constant physical presence of the collaborating physician is not required as long as the collaborating physician and physician assistant associate are, or can be, easily in contact with one another by telecommunication. Collaboration does not require the personal presence of the collaborating physician at the place or places where services are rendered.
"Endorsement" means a summer camp or volunteer endorsement authorized under this article.
"Health care facility" means any licensed hospital, nursing home, extended care facility, state health or mental institution, clinic, or physician office.
"License" means a license issued by either of the boards pursuant to the provisions of this article.
"Licensee" means a person licensed pursuant to the provisions of this article.
"Physician" means a doctor of allopathic or osteopathic medicine who is fully licensed pursuant to the provisions of either §30-3-1 et seq. or §30-14-1 et seq. of this code to practice medicine and surgery in this state.
"Physician assistant associate" means a person who meets the qualifications set forth in this article and is licensed pursuant to this article to practice medicine with a collaborating physician. This term has the same meaning as "physician assistant" or any other title the American Academy of Physician Associates, or its successor association, currently designates for the profession that formerly was referred to as a physician assistant.
"Practice notification" means a written notice to the appropriate licensing board that a physician assistant associate will practice in collaboration with one or more collaborating physicians in the state of West Virginia.
In addition to the powers and duties set forth in this code for the boards, the boards shall:
(1) Establish the requirements for licenses and temporary licenses pursuant to this article;
(2) Establish the procedures for submitting, approving, and rejecting applications for licenses and temporary licenses;
(3) Propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code to implement the provisions of this article;
(4) Compile and publish an annual report that includes a list of currently licensed physician assistants associates and their primary practice locations in the state; and
(5) Take all other actions necessary and proper to effectuate the purposes of this article.
(a) The boards shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code to implement the provisions of this article, including:
(1) The extent to which physician assistants associates may practice in this state;
(2) The extent to which physician assistants associates may pronounce death;
(3) Requirements for licenses and temporary licenses;
(4) Requirements for practice notifications;
(5) Requirements for continuing education;
(6) Conduct of a licensee for which discipline may be imposed;
(7) The eligibility and extent to which a physician assistant associate may prescribe;
(8) A fee schedule; and
(9) Any other rules necessary to effectuate the provisions of this article.
(b) The boards may propose emergency rules pursuant to §29A-3-1 et seq. of this code to ensure conformity with this article.
(c) (1) A physician assistant associate may not prescribe a Schedule I controlled substance as provided in §60A-2-204 of this code.
(2) A physician assistant associate may prescribe up to a three-day supply of a Schedule II narcotic as provided in §60A-2-206 of this code.
(3) There are no other limitations on the prescribing authority of a physician assistant associates, except as provided in §16-54-1 et seq. of this code.
(a) A person seeking licensure as a physician assistant associate shall apply to the Board of Medicine or to the Board of Osteopathic Medicine. The appropriate board shall issue a license to practice as a physician assistant associate with the collaboration of that board’s licensed physicians or podiatrists.
(b) A license may be granted to a person who:
(1) Files a complete application;
(2) Pays the applicable fees;
(3) Demonstrates to the board’s satisfaction that he or she:
(A) Obtained a baccalaureate or master’s degree from an accredited program of instruction for physician assistants associates;
(B) Prior to July 1, 1994, graduated from an approved program of instruction in primary health care or surgery; or
(C) Prior to July 1, 1983, was certified by the Board of Medicine as a physician assistant associate then classified as Type B;
(4) Has passed the Physician Assistant Associate National Certifying Examination administered by the National Commission on Certification of Physician Assistants Associates;
(5) Has a current certification from the National Commission on Certification of Physician Assistants Associates or has a current license in good standing from a state that does not require a physician assistant associate to maintain national certification;
(6) Is mentally and physically able to engage safely in practice as a physician assistant associate;
(7) Has not had a physician assistant associate license, certification, or registration in any jurisdiction suspended or revoked;
(8) Is not currently subject to any limitation, restriction, suspension, revocation, or discipline concerning a physician assistant associate license, certification, or registration in any jurisdiction: Provided, That if a board is made aware of any problems with a physician assistant associate license, certification, or registration and agrees to issue a license, certification, or registration notwithstanding the provisions of this subdivision or subdivision (7) of this subsection;
(9) Is of good moral character; and
(10) Has fulfilled any other requirement specified by the appropriate board.
(c) A board may deny an application for a physician assistant associate license to any applicant determined to be unqualified by the board.
(a) If a license automatically expires and reinstatement is sought within one year of the automatic expiration, then an applicant shall submit:
(1) A complete reinstatement application;
(2) The applicable fees;
(3) Proof that he or she has passed Physician Assistant Associate National Certifying Examination; and
(4) An attestation that all continuing education requirements have been met.
(b) If a license automatically expires and more than one year has passed since the automatic expiration, then an applicant shall apply for a new license.
(a) A physician assistant associate may not practice independent of a collaborating physician.
(b) A physician assistant associate may practice in collaboration with physicians in any practice setting pursuant to a practice notification which has been filed with, and activated by, the appropriate board in accordance with §30-3E-10a of this code: Provided, That a physician assistant associate who is currently practicing in collaboration with physicians pursuant to a practice agreement which was authorized by a board prior to June 1, 2021, may continue to practice under that authorization until the practice agreement terminates or until June 1, 2022, whichever is sooner.
(c) Notwithstanding any other provision of this code to the contrary, and to the degree permitted by federal law, physician assistants associates shall be considered providers and shall not be reimbursed at rates lower than other providers who render similar health services by health insurers as well as health plans operated or paid for by the state.
(a) Before a licensed physician assistant associate may practice in collaboration with physicians, the physician assistant associate and a health care facility shall:
(1) File a practice notification with the appropriate licensing board;
(2) Pay the applicable fee; and
(3) Receive written notice from the appropriate licensing board that the practice notification is complete and active.
(b) The licensing boards shall promulgate emergency rules to establish the content and criteria for submission of practice notifications.
(c) A physician assistant associate shall notify the board, in writing, within 10 days of the termination of a practice notification. Failure to provide timely notice of the termination constitutes unprofessional conduct and disciplinary proceedings may be instituted by the appropriate licensing board.
(a) Unless otherwise prohibited by a health care facility, a physician who practices medicine or podiatry at a health care facility may collaborate with any physician assistant associate who holds an active practice notification with the same facility.
(b) When collaborating with physician assistants associates, collaborating physicians shall observe, direct, and evaluate the physician assistant’s associate’s work, records, and practices as necessary for appropriate and meaningful collaboration.
(c) A health care facility is only legally responsible for the actions or omissions of a physician assistant associate when the physician assistant associate is employed by or on behalf of the facility.
(d) Every licensed physician assistant associate shall be individually responsible and liable for the care they provide. This article does not relieve physician assistants associates or collaborating physicians of responsibility and liability which otherwise may exist for acts and omissions occurring during collaboration.
(a) A license issued to a physician assistant associate by the appropriate state licensing board shall authorize the physician assistant associate to perform medical acts commensurate with their education, training, and experience and which they are competent to perform, consistent with the rules of the boards. Medical acts include prescribing, dispensing, and administering of controlled substances, prescription drugs, or medical devices.
(b) A physician assistant associate shall provide only those medical services for which they have been prepared by their education, training, and experience and are competent to perform, consistent with sound medical practice and that will protect the health and safety of the patient. This may occur in any health care setting, both hospital and outpatient in accordance with their practice notification.
(c) A physician assistant associate with an active practice notification may perform medical acts and/or procedures in collaboration with physicians which are consistent with the physician assistant’s associate’s education, training and experience, the collaborating physician’s scope of practice, and any credentialing requirements of the health care facility where the physician assistant associate holds an active practice notification.
(d) This article does not authorize a physician assistant associate to perform any specific function or duty delegated by this code to those persons licensed as chiropractors, dentists, dental hygienists, optometrists, or pharmacists, or certified as nurse anesthetists.
(a) A physician assistant associate may provide an authorized signature, certification, stamp, verification, affidavit or endorsement on documents within the scope of their practice, including, but not limited to, the following documents:
(1) Death certificates: Provided, That the physician assistant associate has received training on the completion of death certificates;
(2) "Physician orders for life sustaining treatment", "physician orders for scope of treatment" and "do not resuscitate" forms;
(3) Handicap hunting certificates; and
(4) Utility company forms requiring maintenance of utilities regardless of ability to pay.
(b) A physician assistant associate may not sign a certificate of merit for a medical malpractice claim against a physician.
(a) While practicing, a physician assistant associate shall wear a name tag that identifies him or her as a physician assistant associate.
(b) A physician assistant associate shall keep his or her license and current practice notification available for inspection at his or her place of practice.
(a) A special volunteer physician assistant associate license may be issued to a physician assistant associate who:
(1) Is retired or is retiring from the active practice of medicine; and
(2) Wishes to donate his or her expertise for the medical care and treatment of indigent and needy patients in the clinical setting of clinics organized, in whole or in part, for the delivery of health care services without charge.
(b) The special volunteer physician assistant associate license shall be issued by the appropriate licensing board:
(1) To a physician assistant associate licensed or otherwise eligible for licensure under this article;
(2) Without the payment of any fee; and
(3) The initial license shall be issued for the remainder of the licensing period.
(c) The special volunteer physician assistant associate license shall be renewed consistent with the appropriate licensing board’s other licensing requirements.
(d) The appropriate licensing board shall develop application forms for the special volunteer physician assistant associate license which shall contain the physician assistant’s associate’s acknowledgment that:
(1) The physician assistant’s associate's practice under the special volunteer physician assistant associate license shall be exclusively devoted to providing medical care to needy and indigent persons in West Virginia;
(2) The physician assistant associate will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation, for any medical services rendered under the special volunteer physician assistant associate license;
(3) The physician assistant associate shall supply any supporting documentation that the appropriate licensing board may reasonably require; and
(4) The physician assistant associate agrees to continue to participate in continuing education as required by the appropriate licensing board for the special volunteer physician assistant associate license.
(e) A physician assistant associate and his or her collaborating physician who render medical 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 physician assistant associate license, without payment or compensation or the expectation or promise of payment or compensation, are immune from liability for any civil action arising out of any act or omission resulting from the rendering of the medical service at the clinic unless the act or omission was the result of the physician assistant’s associate’s and his or her collaborating physician’s gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there shall be a written agreement between the physician assistant associate and the clinic pursuant to which the physician assistant associate shall provide voluntary uncompensated medical services under the control of the clinic to patients of the clinic before the rendering of any services by the physician assistant associate at the clinic. Any clinic entering into a written agreement is required to maintain liability coverage of not less than $1 million per occurrence.
(f) Notwithstanding the provisions 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 a physician assistant associate rendering voluntary medical services at or for the clinic under a special volunteer physician assistant associate license.
(g) For purposes of this section, "otherwise eligible for licensure" means the satisfaction of all the requirements for licensure under this article, except the fee requirements.
(h) Nothing in this section may be construed as requiring the appropriate licensing board to issue a special volunteer physician assistant associate license to any physician assistant associate whose license is or has been subject to any disciplinary action or to any physician assistant associate who has surrendered a physician assistant associate license or caused his or her license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her license, or who has elected to place a physician assistant associate license in inactive status in lieu of having a complaint initiated or other action taken against his or her license, or who has been denied a physician assistant associate license.
(i) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any physician assistant associate covered under the provisions of this article shall be read so as to contain a provision or endorsement whereby the company issuing the 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 the 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 a physician assistant associate who holds a special volunteer physician assistant associate license.
(a) The appropriate licensing board may grant a summer camp or volunteer endorsement to provide services at a children’s summer camp or volunteer services for a public or community event to a physician assistant associate who:
(1) Is currently licensed by the appropriate licensing board;
(2) Has no current discipline, limitations or restrictions on his or her license;
(3) Has submitted a timely application; and
(4) Attests that:
(A) The organizers of the summer camp and public or community event have arranged for a collaborating physician to be available as needed to the physician assistant associate;
(B) The physician assistant associate shall limit his or her scope of practice to medical acts which are within his or her education, training and experience; and
(C) The physician assistant associate will not prescribe any controlled substances or legend drugs as part of his or her practice at the summer camp or public or community event.
(b) A physician assistant associate may only receive one summer camp or volunteer endorsement annually. The endorsement is active for one specifically designated period annually, which period cannot exceed three weeks.
(c) A fee cannot be assessed for the endorsement if the physician assistant associate is volunteering his or her services without compensation or remuneration.
(a) The appropriate licensing board may grant a summer camp or volunteer endorsement to provide services at a children’s summer camp or volunteer services for a public or community event to a physician assistant associate licensed from another jurisdiction who:
(1) Is currently licensed in another jurisdiction and has a current certification from the National Commission on Certification of Physician Assistants Associates;
(2) Has no current discipline, limitations or restrictions on his or her license;
(3) Has passed the Physician Assistant Associate National Certifying Examination administered by the National Commission on Certification of Physician Assistants Associates;
(4) Has submitted a timely application;
(5) Has paid the applicable fees; and
(6) Attests that:
(A) The organizers of the summer camp and public or community event have arranged for a collaborating physician to be available as needed to the physician assistant associate;
(B) The physician assistant associate shall limit his or her scope of practice to medical acts which are within his or her education, training and experience; and
(C) The physician assistant associate will not prescribe any controlled substances or legend drugs as part of his or her practice at the summer camp or public or community event; and
(7) Has fulfilled any other requirements specified by the appropriate board.
(b) A physician assistant associate may only receive one summer camp or volunteer endorsement annually. The endorsement is active for one specifically designated period annually, which period cannot exceed three weeks.
(a) All hearings and procedures related to denial of a license, and all complaints, investigations, hearings, and procedures regarding a physician assistant associate license and the discipline accorded thereto, shall be in accordance with the processes and procedures set forth in either §30-3-1 et seq. or §30-14-1 et seq. of this code, depending on which board licenses the physician assistant associate.
(b) The boards may impose the same discipline, restrictions, and/or limitations upon the license of a physician assistant associate as they are authorized to impose upon physicians and/or podiatrists.
(c) The boards shall direct to the appropriate licensing board a complaint against a physician assistant associate and/or a collaborating physician.
(d) In the event that independent complaint processes are warranted by the boards with respect to the professional conduct of a physician assistant associate or a collaborating physician, the boards are authorized to work cooperatively and to disclose to one another information which may assist the recipient appropriate licensing board in its disciplinary process. The determination of what information, if any, to disclose shall be at the discretion of the disclosing board.
(e) A physician assistant associate licensed under this article may not be disciplined for providing expedited partner therapy in accordance with §16-4F-1 et seq. of this code.
(a) A health care facility shall report, in writing, to the appropriate licensing board within sixty days after the completion of the facility's formal disciplinary procedure or after the commencement and conclusion of any resulting legal action against a licensee.
(b) The report shall include:
(1) The name of the physician assistant associate practicing in the facility whose privileges at the facility have been revoked, restricted, reduced or terminated for any cause including resignation;
(2) All pertinent information relating to the action; and
(3) The formal disciplinary action taken against the physician assistant associate by the facility relating to professional ethics, medical incompetence, medical malpractice, moral turpitude or drug or alcohol abuse.
(c) A health care facility does not need to report temporary suspensions for failure to maintain records on a timely basis or for failure to attend staff or section meetings.
It is unlawful for any physician assistant associate to represent to any person that he or she is a physician, surgeon or podiatrist. A person who violates this section 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.
(a) The West Virginia Board of Osteopathy is continued and effective July 1, 2012 shall be known as the West Virginia Board of Osteopathic Medicine. The members of the board shall continue to serve until a successor is appointed and may be reappointed.
(b) The Governor shall appoint, by and with advice and consent of the Senate, two additional members and stagger their initial terms:
(1) One person who is a licensed osteopathic physician or surgeon; and
(2) One person who is a licensed osteopathic physician assistant associate.
(c) The board consists of the following seven members, who are appointed to staggered terms by the Governor with the advice and consent of the Senate:
(1) Four licensed osteopathic physicians and surgeons;
(2) One licensed osteopathic physician assistant associate; and
(3) Two citizen members, who are not associated with the practice of osteopathic medicine.
(d) After the initial appointment, a board member's term shall be for 5 years.
(e) The West Virginia Osteopathic Medical Association may submit recommendations to the Governor for the appointment of an osteopathic physician board member, and the West Virginia Association of Physician Assistants Associates may submit recommendations to the Governor for the appointment of an osteopathic physician assistant associate board member.
(f) Each licensed member of the board, at the time of his or her appointment, must have held a license in this state for a period of not less than five years immediately preceding the appointment.
(g) Each member of the board must be a U.S. citizen and a resident of this state for a period of not less than five years immediately preceding the appointment and while serving as a member of the board.
(h) A member may not serve more than two consecutive full terms. A member having served two consecutive full terms may not be appointed for one year after completion of his or her second full term. A member may continue to serve until a successor has been appointed and has qualified.
(i) A vacancy on the board shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant and the appointment shall be made within sixty days of the vacancy.
(j) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.
(k) A member of the board immediately and automatically forfeits membership to the board if his or her license to practice is suspended or revoked, he or she is convicted of a felony under the laws of any jurisdiction, or he or she becomes a nonresident of this state.
(l) The board shall elect annually one of its members as a chairperson and one of its members as a secretary who shall serve at the will of the board.
(m) Each member of the board is entitled to compensation and expense reimbursement in accordance with article one of this chapter.
(n) A simple majority of the membership serving on the board at a given time constitutes a quorum.
(o) The board shall hold at least two meetings each year. Other meetings may be held at the call of the chairperson or upon the written request of two members, at the time and place as designated in the call or request.
(p) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state.
(q) The members of the board when acting in good faith, without malice and within the scope of their duties as board members shall enjoy immunity from individual civil liability.
(a) One or more osteopathic physicians, allopathic physicians, or physician assistants associates may form an osteopathic medical corporation. An osteopathic physician or osteopathic physician assistant associate shall file a written application with the board on a form prescribed by the board, and shall furnish proof satisfactory to the board that the signer or all of the signers of such application is or are duly licensed. A reasonable fee, to be set by the board rules, shall accompany the application, no part of which shall be returnable.
(b) If the board finds that the signer or all of the signers of the application are licensed, the board shall notify the Secretary of State that a certificate of authorization has been issued.
(c) When the Secretary of State receives notification from the board that a certain individual or individuals has or have been issued a certificate of authorization, he or she shall attach the authorization to the corporation application and upon compliance by the corporation with §31-1-1 et seq. of this code, the Secretary of State shall notify the incorporators that the corporation may engage in the appropriate practice.
(a) The board shall maintain a permanent record of the names of all osteopathic physicians and osteopathic physician assistants associates, licensed, certified or otherwise lawfully practicing in this state and of all persons applying to be so licensed to practice, along with an individual historical record for each such individual containing reports and all other information furnished the board under this article or otherwise. When the board receives a report submitted pursuant to the provisions of section twelve-a of this article, or when the board receives or initiates a complaint regarding the conduct of anyone practicing osteopathic medicine or surgery, the board shall create a separate complaint file in which the board shall maintain all documents relating to the investigation and action upon the alleged conduct.
(b) Upon a determination by the board that any report submitted to it is without merit, the report shall be expunged from the individual's historical record.
(c) An osteopathic physician, osteopathic physician assistant associate, or applicant, or authorized representative thereof, has the right, upon request, to examine his or her own individual records maintained by the board pursuant to this article and to place into such record a statement of reasonable length of his or her own view of the correctness or relevance of any information existing in such record. Such statement shall at all times accompany that part of the record in contention.
(d) An osteopathic physician, osteopathic physician assistant associate or applicant has the right to seek through court action the amendment or expungement of any part of his or her historical record.
(e) An osteopathic physician, osteopathic physician assistant associate or applicant shall be provided written notice within 30 days of the placement and substance of any information in his or her individual historical record that pertains to him or her and that was not submitted to the board by him or her, other than requests for verification of the status of the individual's license and the board's responses thereto.
(f) Except for information relating to biographical background, education, professional training and practice, a voluntary agreement entered into pursuant to subsection (h) of this section and which has been disclosed to the board, prior disciplinary action by any entity, or information contained on the licensure application, the board shall expunge information in an individual's complaint file unless it has initiated a proceeding for a hearing upon such information within two years of the placing of the information into the complaint file.
(g) Orders of the board relating to disciplinary action against a physician, or physician assistant associate are public information.
(h) (1) In order to encourage voluntary participation in monitored alcohol, chemical dependency or major mental illness programs and in recognition of the fact that major mental illness, alcoholism and chemical dependency are illnesses, an osteopathic physician or osteopathic physician assistant associate licensed, certified, or otherwise lawfully practicing in this state or applying for a license to practice in this state may enter into a voluntary agreement with the board-designated physician health program. The agreement between the physician or physician assistant associate and the physician health program shall include a jointly agreed upon treatment program and mandatory conditions and procedures to monitor compliance with the program of recovery.
(2) Any voluntary agreement entered into pursuant to this subsection shall not be considered a disciplinary action or order by the board, shall not be disclosed to the board and shall not be public information if:
(A) Such voluntary agreement is the result of the physician or physician assistant associate self-enrolling or voluntarily participating in the board-designated physician health program;
(B) The board has not received nor filed any written complaints regarding said physician or physician assistant associate relating to an alcohol, chemical dependency or major mental illness affecting the care and treatment of patients, nor received any written reports pursuant to subsection (b), section fourteen of this article relating to an alcohol or chemical dependency impairment; and
(C) The physician or physician assistant associate is in compliance with the voluntary treatment program and the conditions and procedures to monitor compliance.
(3) If any osteopathic physician or osteopathic physician assistant associate enters into a voluntary agreement with the board-approved physician health program, pursuant to this subsection and then fails to comply with, or fulfill the terms of said agreement the physician health program shall report the noncompliance to the board within twenty-four hours. The board may initiate disciplinary proceedings pursuant to section eleven of this article or may permit continued participation in the physician health program or both.
(4) If the board has not instituted any disciplinary proceeding as provided in this article, any information received, maintained, or developed by the board relating to the alcohol or chemical dependency impairment of any osteopathic physician or osteopathic physician assistant associate and any voluntary agreement made pursuant to this subsection shall be confidential and not available for public information, discovery or court subpoena, nor for introduction into evidence in any medical professional liability action or other action for damages arising out of the provision of or failure to provide health care services.
In the board's annual report of its activities to the Governor and the Legislature required under section twelve, article one of this chapter, the board shall include information regarding the success of the voluntary agreement mechanism established therein: Provided, That in making such report the board shall not disclose any personally identifiable information relating to any osteopathic physician or osteopathic physician assistant associate participating in a voluntary agreement as provided herein.
Notwithstanding any of the foregoing provisions, the board may cooperate with and provide documentation of any voluntary agreement entered into pursuant to this subsection to licensing boards in other jurisdictions of which the board has become aware and as may be appropriate.
(i) Any physician-patient privilege does not apply in any investigation or proceeding by the board or by a medical peer review committee or by a hospital governing board with respect to relevant hospital medical records, while any of the aforesaid are acting within the scope of their authority: Provided, That the disclosure of any information pursuant to this provision shall not be considered a waiver of any such privilege in any other proceeding.
(a) The board shall propose rules for legislative approval, in accordance with article three, chapter twenty-nine-a of this code, to implement the provisions of this article, including:
(1) Standards and requirements for licenses and permits;
(2) Procedures for examinations and reexaminations;
(3) Requirements for third parties to prepare or administer, or both, examinations and reexaminations;
(4) Educational and experience requirements;
(5) Standards for approval of courses and curriculum;
(6) Procedures for the issuance and renewal of licenses and permits;
(7) A fee schedule;
(8) Regulation of osteopathic medical corporations;
(9) Regulation of profession limited liability companies;
(10) Regulation of osteopathic physician assistants associates;
(11) Continuing education requirements for licensees;
(12) The standards for and limitations upon the utilization of telemedicine technologies;
(13) The procedures for denying, suspending, restricting, revoking, reinstating or limiting the practice of licensees and permittees;
(14) Adopting a standard for ethics;
(15) Requirements for revoked licenses or permits; and
(16) Any other rules necessary to effectuate the provisions of this article.
(b) All of the board's rules in effect and not in conflict with these provisions shall remain in effect until they are amended or rescinded.
(a) To qualify for a license, an applicant shall:
(1) Be free of a felony conviction bearing a rational nexus to the profession pursuant to §30-1-24 of this code;
(2) Be at least 18 years of age;
(3) Demonstrate competence in performing acupuncture by meeting one of the following standards for education, training, or demonstrated experience:
(A) Graduation from a course of training of at least 1,800 hours, including 300 clinical hours, that is:
(i) Approved by the national accreditation commission for schools and colleges of acupuncture and oriental medicine; or
(ii) Found by the board to be equivalent to a course approved by the national accreditation commission for schools and colleges of acupuncture and oriental medicine;
(B) Achievement of a passing score on an examination that is:
(i) Given by the national commission for the certification of acupuncturists; or
(ii) Determined by the board to be equivalent to the examination given by the national commission for the certification of acupuncturists;
(C) Successful completion of an apprenticeship consisting of at least 2,700 hours within a five-year period under the direction of an individual properly approved by that jurisdiction to perform acupuncture; or
(D) Performance of the practice of acupuncture in accordance with the law of another jurisdiction or jurisdictions for a period of at least three years within the five years immediately prior to application that consisted of at least 500 patient visits per year; and
(4) Achievement of any other qualifications that the board establishes in rules.
(b) Notwithstanding any other provisions of this code to the contrary, to qualify for a certificate as an auricular detoxification specialist, an applicant shall:
(1) Be at least 18 years old;
(2) Be authorized in this state to engage in any of the following:
(A) Physician assistant associate, pursuant to §30-3E-1 et seq. of this code;
(B) Dentist, pursuant to §30-4-1 et seq. of this code;
(C) Registered professional nurse, pursuant to §30-7-1 et seq. of this code;
(D) Practical nurse, pursuant to §30-7A-1 et seq. of this code;
(E) Psychologist, pursuant to §30-21-1 et seq. of this code;
(F) Occupational therapist, pursuant to §30-28-1 et seq. of this code;
(G) Social worker, pursuant to §30-30-1 et seq. of this code;
(H) Professional counselor, pursuant to §30-31-1 et seq. of this code;
(I) Emergency medical services provider, pursuant to §16-4C-1 et seq. of this code;
(J) Corrections medical providers, pursuant to §15A-1-1 et seq. of this code; or
(K) Any other profession the board determines is eligible to engage in the practice of auricular acudetox.
(3) Provide evidence of successful completion of a board-approved auricular acudetox program;
(4) Submit a completed application as prescribed by the board; and
(5) Submit the appropriate fees as provided for by legislative rule.
(c) A certificate may be issued to a retired or inactive professional as described in §30-36-10(b) of this code: Provided, That the professional meets the qualifications for a certificate holder and the last three years of professional activity were performed in good standing: Provided, however, That a person who holds a certificate or its equivalent in another jurisdiction as an auricular detoxification specialist may be approved by the board to practice auricular acudetox during a public health emergency or state of emergency for a duration to be provided for in legislative rules of the board.
Notwithstanding any other provisions of law, when any health insurance policy, health care services plan or other contract provides for the payment of medical expenses, benefits or procedures, such policy, plan or contract shall be construed to include payment to all health care providers including medical physicians, osteopathic physicians, podiatric physicians, chiropractic physicians, midwives, physician assistants associates and nurse practitioners who provide medical services, benefits or procedures which are within the scope of each respective provider’s license. Any limitation or condition placed upon services, diagnoses or treatment by, or payment to, any particular type of licensed provider shall apply equally to all types of licensed providers without unfair discrimination as to the usual and customary treatment procedures of any of the aforesaid providers.
For purposes of this article:
(1) "Advanced nurse practitioner" means a certified nurse-midwife, or an advanced nurse practitioner certified to practice in family practice, women's health (ob/gyn), or primary care adult, geriatric or pediatric practice, practicing within the lawful scope of that provider's practice.
(2) "Health benefits policy" means any individual or group plan, policy or contract for health care services issued, delivered, issued for delivery or renewed in this state by a health care corporation, health maintenance organization, accident and sickness insurer, fraternal benefit society, nonprofit hospital service corporation, nonprofit medical service corporation or similar entity, when the policy or plan covers hospital, medical or surgical expenses.
(3) "Partial-birth abortion" means an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery.
(4) "Physician performing a partial-birth abortion" means a doctor of medicine or osteopathy legally authorized to practice medicine and surgery in West Virginia, or any other individual who is legally authorized by the state to perform abortions: Provided, That any individual who is not a physician or not otherwise legally authorized by the state to perform abortions, but who nevertheless directly performs a partial-birth abortion, is subject to the provisions of this article.
(5) "Vaginally delivers a living fetus before killing the fetus" means deliberately and intentionally delivering into the vagina a living fetus, or a substantial portion thereof, for the purpose of performing a procedure that the physician or person delivering the living fetus knows will kill the fetus, and kills the fetus.
(6) "Women's health care provider" means an obstetrician/ gynecologist, advanced nurse practitioner certified to practice in women's health (ob/gyn), certified nurse-midwife or physician assistant associate-midwife practicing within the lawful scope of that provider's practice.
For the purposes of this article, the following words shall have the meanings ascribed to them in this section unless the context clearly indicates a different meaning:
(a) "Board" means the State Board of Risk and Insurance Management.
(b) "Collateral source" means a source of benefits or advantages for economic loss that the claimant has received from:
(1) Any federal or state act, public program, or insurance which provides payments for medical expenses, disability benefits, including workers’ compensation benefits, or other similar benefits. Benefits payable under the Social Security Act and Medicare are not considered payments from collateral sources except for social security disability benefits directly attributable to the medical injury in question;
(2) Any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental, nursing, rehabilitation, therapy or other health care services, or provide similar benefits, but excluding any amount that a group, organization, partnership, corporation, or health care provider agrees to reduce, discount, or write off of a medical bill;
(3) Any group accident, sickness, or income disability insurance, any casualty or property insurance, including automobile and homeowners’ insurance, which provides medical benefits, income replacement, or disability coverage, or any other similar insurance benefits, except life insurance, to the extent that someone other than the insured, including the insured’s employer, has paid all or part of the premium or made an economic contribution on behalf of the plaintiff; or
(4) Any contractual or voluntary wage continuation plan provided by an employer or otherwise or any other system intended to provide wages during a period of disability.
(c) "Consumer Price Index" means the most recent Consumer Price Index for All Consumers published by the United States Department of Labor.
(d) "Emergency condition" means any acute traumatic injury or acute medical condition which, according to standardized criteria for triage, involves a significant risk of death or the precipitation of significant complications or disabilities, impairment of bodily functions or, with respect to a pregnant woman, a significant risk to the health of the unborn child.
(e) "Health care" means:
(1) Any act, service, or treatment provided under, pursuant to, or in the furtherance of a physician’s plan of care, a health care facility’s plan of care, medical diagnosis, or treatment;
(2) Any act, service, or treatment performed or furnished, or which should have been performed or furnished, by any health care provider or person supervised by or acting under the direction of a health care provider or licensed professional for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement, including, but not limited to, staffing, medical transport, custodial care, or basic care, infection control, positioning, hydration, nutrition, and similar patient services; and
(3) The process employed by health care providers and health care facilities for the appointment, employment, contracting, credentialing, privileging, and supervision of health care providers.
(f) "Health care facility" means any clinic, hospital, pharmacy, nursing home, assisted living facility, residential care community, end-stage renal disease facility, home health agency, child welfare agency, group residential facility, behavioral health care facility or comprehensive community mental health center, intellectual/developmental disability center or program, or other ambulatory health care facility, in and licensed, regulated, or certified by the State of West Virginia under state or federal law and any state-operated institution or clinic providing health care and any related entity to the health care facility.
(g) "Health care provider" means a person, partnership, corporation, professional limited liability company, health care facility, entity, or institution licensed by, or certified in, this state or another state, to provide health care or professional health care services, including, but not limited to, a physician, osteopathic physician, physician assistant associate, advanced practice registered nurse, hospital, health care facility, dentist, registered or licensed practical nurse, optometrist, podiatrist, chiropractor, physical therapist, speech-language pathologist, audiologist, occupational therapist, psychologist, pharmacist, technician, certified nursing assistant, emergency medical service personnel, emergency medical services authority or agency, any person supervised by or acting under the direction of a licensed professional, any person taking actions or providing service or treatment pursuant to or in furtherance of a physician’s plan of care, a health care facility’s plan of care, medical diagnosis or treatment; or an officer, employee, or agent of a health care provider acting in the course and scope of the officer’s, employee’s or agent’s employment.
(h) "Injury" or "Medical injury" means injury or death to a patient arising or resulting from the rendering of or failure to render health care.
(i) "Medical professional liability" means any liability for damages resulting from the death or injury of a person for any tort or breach of contract based on health care services rendered, or which should have been rendered, by a health care provider or health care facility to a patient. It also means other claims that may be contemporaneous to or related to the alleged tort or breach of contract or otherwise provided, all in the context of rendering health care services.
(j) "Medical professional liability insurance" means a contract of insurance or any actuarially sound self-funding program that pays for the legal liability of a health care facility or health care provider arising from a claim of medical professional liability. In order to qualify as medical professional liability insurance for purposes of this article, a self-funding program for an individual physician must meet the requirements and minimum standards set forth in §55-7B-12 of this code.
(k) "Noneconomic loss" means losses, including, but not limited to, pain, suffering, mental anguish, and grief.
(l) "Occurrence" means any and all injuries to a patient arising from health care rendered by a health care facility or a health care provider and includes any continuing, additional, or follow-up care provided to that patient for reasons relating to the original health care provided, regardless if the injuries arise during a single date or multiple dates of treatment, single or multiple patient encounters, or a single admission or a series of admissions.
(m) "Patient" means a natural person who receives or should have received health care from a licensed health care provider under a contract, expressed or implied.
(n) "Plaintiff" means a patient or representative of a patient who brings an action for medical professional liability under this article.
(o) "Related entity" means any corporation, foundation, partnership, joint venture, professional limited liability company, limited liability company, trust, affiliate, or other entity under common control or ownership, whether directly or indirectly, partially or completely, legally, beneficially, or constructively, with a health care provider or health care facility; or which owns directly, indirectly, beneficially, or constructively any part of a health care provider or health care facility.
(p) "Representative" means the spouse, parent, guardian, trustee, attorney, or other legal agent of another.
(a)(1) The information required by this article to be kept by the Board of Pharmacy is confidential and not subject to the provisions of §29B-1-1 et seq. of this code or obtainable as discovery in civil matters absent a court order and is open to inspection only by inspectors and agents of the Board of Pharmacy, members of the West Virginia State Police expressly authorized by the Superintendent of the West Virginia State Police to have access to the information, authorized agents of local law-enforcement agencies as members of a federally affiliated drug task force, authorized agents of the federal Drug Enforcement Administration, duly authorized agents of the Bureau for Medical Services, duly authorized agents of the Office of the Chief Medical Examiner for use in post-mortem examinations, duly authorized agents of the Office of Health Facility Licensure and Certification for use in certification, licensure, and regulation of health facilities, duly authorized agents of licensing boards of practitioners in this state and other states authorized to prescribe Schedules II, III, IV, and V controlled substances, prescribing practitioners and pharmacists, a dean of any medical school or his or her designee located in this state to access prescriber level data to monitor prescribing practices of faculty members, prescribers, and residents enrolled in a degree program at the school where he or she serves as dean, a physician reviewer designated by an employer of medical providers to monitor prescriber level information of prescribing practices of physicians, advance practice registered nurses, or physician assistants associates in their employ, and a chief medical officer of a hospital or a physician designated by the chief executive officer of a hospital who does not have a chief medical officer, for prescribers who have admitting privileges to the hospital or prescriber level information, and persons with an enforceable court order or regulatory agency administrative subpoena. All law-enforcement personnel who have access to the Controlled Substances Monitoring Program Database shall be granted access in accordance with applicable state laws and the Board of Pharmacy’s rules, shall be certified as a West Virginia law-enforcement officer and shall have successfully completed training approved by the Board of Pharmacy. All information released by the Board of Pharmacy must be related to a specific patient or a specific individual or entity under investigation by any of the above parties except that practitioners who prescribe or dispense controlled substances may request specific data related to their Drug Enforcement Administration controlled substance registration number or for the purpose of providing treatment to a patient: Provided, That the West Virginia Controlled Substances Monitoring Program Database Review Committee established in §60A-9-5(b) of this code is authorized to query the database to comply with §60A-9-5(b) of this code.
(2) Subject to the provisions of §60A-9-5(a)(1) of this code, the Board of Pharmacy shall also review the West Virginia Controlled Substances Monitoring Program Database and issue reports that identify abnormal or unusual practices of patients and practitioners with prescriptive authority who exceed parameters as determined by the advisory committee established in this section. The Board of Pharmacy shall communicate with practitioners and dispensers to more effectively manage the medications of their patients in the manner recommended by the advisory committee. All other reports produced by the Board of Pharmacy shall be kept confidential. The Board of Pharmacy shall maintain the information required by this article for a period of not less than five years. Notwithstanding any other provisions of this code to the contrary, data obtained under the provisions of this article may be used for compilation of educational, scholarly, or statistical purposes, and may be shared with the West Virginia Department of Health and Human Resources for those purposes, as long as the identities of persons or entities and any personally identifiable information, including protected health information, contained therein shall be redacted, scrubbed, or otherwise irreversibly destroyed in a manner that will preserve the confidential nature of the information. No individual or entity required to report under §60A-9-4 of this code may be subject to a claim for civil damages or other civil relief for the reporting of information to the Board of Pharmacy as required under and in accordance with the provisions of this article.
(3) The Board of Pharmacy shall establish an advisory committee to develop, implement, and recommend parameters to be used in identifying abnormal or unusual usage patterns of patients and practitioners with prescriptive authority in this state. This advisory committee shall:
(A) Consist of the following members: A physician licensed by the West Virginia Board of Medicine; a dentist licensed by the West Virginia Board of Dental Examiners; a physician licensed by the West Virginia Board of Osteopathic Medicine; a licensed physician certified by the American Board of Pain Medicine; a licensed physician board certified in medical oncology recommended by the West Virginia State Medical Association; a licensed physician board certified in palliative care recommended by the West Virginia Center on End of Life Care; a pharmacist licensed by the West Virginia Board of Pharmacy; a licensed physician member of the West Virginia Academy of Family Physicians; an expert in drug diversion; and such other members as determined by the Board of Pharmacy.
(B) Recommend parameters to identify abnormal or unusual usage patterns of controlled substances for patients in order to prepare reports as requested in accordance with §60A-9-5(a)(2) of this code.
(C) Make recommendations for training, research, and other areas that are determined by the committee to have the potential to reduce inappropriate use of prescription drugs in this state, including, but not limited to, studying issues related to diversion of controlled substances used for the management of opioid addiction.
(D) Monitor the ability of medical services providers, health care facilities, pharmacists, and pharmacies to meet the 24-hour reporting requirement for the Controlled Substances Monitoring Program set forth in §60A-9-3 of this code, and report on the feasibility of requiring real-time reporting.
(E) Establish outreach programs with local law enforcement to provide education to local law enforcement on the requirements and use of the Controlled Substances Monitoring Program Database established in this article.
(b) The Board of Pharmacy shall create a West Virginia Controlled Substances Monitoring Program Database Review Committee of individuals consisting of two prosecuting attorneys from West Virginia counties, two physicians with specialties which require extensive use of controlled substances and a pharmacist who is trained in the use and abuse of controlled substances. The review committee may determine that an additional physician who is an expert in the field under investigation be added to the team when the facts of a case indicate that the additional expertise is required. The review committee, working independently, may query the database based on parameters established by the advisory committee. The review committee may make determinations on a case-by-case basis on specific unusual prescribing or dispensing patterns indicated by outliers in the system or abnormal or unusual usage patterns of controlled substances by patients which the review committee has reasonable cause to believe necessitates further action by law enforcement or the licensing board having jurisdiction over the practitioners or dispensers under consideration. The licensing board having jurisdiction over the practitioner or dispenser under consideration shall report back to the Board of Pharmacy regarding any findings, investigation, or discipline resulting from the findings of the review committee within 30 days of resolution of any action taken by the licensing board resulting from the information provided by the Board of Pharmacy. The review committee shall also review notices provided by the chief medical examiner pursuant to §61-12-10(h) of this code and determine on a case-by-case basis whether a practitioner who prescribed or dispensed a controlled substance resulting in or contributing to the drug overdose may have breached professional or occupational standards or committed a criminal act when prescribing the controlled substance at issue to the decedent. Only in those cases in which there is reasonable cause to believe a breach of professional or occupational standards or a criminal act may have occurred, the review committee shall notify the appropriate professional licensing agency having jurisdiction over the applicable practitioner or dispenser and appropriate law-enforcement agencies and provide pertinent information from the database for their consideration. The number of cases identified shall be determined by the review committee based on a number that can be adequately reviewed by the review committee. The information obtained and developed may not be shared except as provided in this article and is not subject to the provisions of §29B-1-1 et seq. of this code or obtainable as discovering in civil matters absent a court order.
(c) The Board of Pharmacy is responsible for establishing and providing administrative support for the advisory committee and the West Virginia Controlled Substances Monitoring Program Database Review Committee. The advisory committee and the review committee shall elect a chair by majority vote. Members of the advisory committee and the review committee may not be compensated in their capacity as members but shall be reimbursed for reasonable expenses incurred in the performance of their duties.
(d) The Board of Pharmacy shall promulgate rules with advice and consent of the advisory committee, after consultation with the licensing boards set forth in §60A-9-5(d)(4) of this code and in accordance with the provisions of §29A-3-1 et seq. of this code. The legislative rules must include, but shall not be limited to, the following matters:
(1) Identifying parameters used in identifying abnormal or unusual prescribing or dispensing patterns;
(2) Processing parameters and developing reports of abnormal or unusual prescribing or dispensing patterns for patients, practitioners, and dispensers;
(3) Establishing the information to be contained in reports and the process by which the reports will be generated and disseminated;
(4) Dissemination of these reports at least quarterly to:
(A) The West Virginia Board of Medicine codified in §30-3-1 et seq. of this code;
(B) The West Virginia Board of Osteopathic Medicine codified in §30-14-1 et seq. of this code;
(C) The West Virginia Board of Examiners for Registered Professional Nurses codified in §30-7-1 et seq. of this code;
(D) The West Virginia Board of Dentistry codified in §30-4-1 et seq. of this code; and
(E) The West Virginia Board of Optometry codified in §30-8-1 et seq. of this code; and
(5) Setting up processes and procedures to ensure that the privacy, confidentiality, and security of information collected, recorded, transmitted, and maintained by the review committee is not disclosed except as provided in this section.
(e) Persons or entities with access to the West Virginia Controlled Substances Monitoring Program Database pursuant to this section may, pursuant to rules promulgated by the Board of Pharmacy, delegate appropriate personnel to have access to said database.
(f) Good faith reliance by a practitioner on information contained in the West Virginia Controlled Substances Monitoring Program Database in prescribing or dispensing or refusing or declining to prescribe or dispense a Schedule II, III, IV, or V controlled substance shall constitute an absolute defense in any civil or criminal action brought due to prescribing or dispensing or refusing or declining to prescribe or dispense.
(g) A prescribing or dispensing practitioner may notify law enforcement of a patient who, in the prescribing or dispensing practitioner’s judgment, may be in violation of §60A-4-410 of this code, based on information obtained and reviewed from the Controlled Substances Monitoring Program Database. A prescribing or dispensing practitioner who makes a notification pursuant to this subsection is immune from any civil, administrative, or criminal liability that otherwise might be incurred or imposed because of the notification if the notification is made in good faith.
(h) Nothing in the article may be construed to require a practitioner to access the West Virginia Controlled Substances Monitoring Program Database except as provided in §60A-9-5 of this code.
(i) The Board of Pharmacy shall provide an annual report on the West Virginia Controlled Substances Monitoring Program to the Legislative Oversight Commission on Health and Human Resources Accountability with recommendations for needed legislation no later than January 1 of each year
As used in this chapter:
"Board" means the West Virginia Board of Pharmacy.
"Controlled substance" means a drug, substance, or immediate precursor in Schedules I through V of §60A-2-1 et seq. of this code, and Schedules I through V of 21 CFR Part 1308.
"Donor" means any person, including an individual member of the public, or any entity legally authorized to possess drugs with a license or permit in good standing in the state in which it is located, including, but not limited to, a wholesaler or distributor, third party logistic provider, pharmacy, dispenser, clinic, surgical or health center, detention and rehabilitation center, laboratory, medical or pharmacy school, prescriber or other health care professional, or healthcare facility. Donor also means government agencies and entities that are federally authorized to possess drugs including, but not limited to, drug manufacturers, repackagers, relabelers, outsourcing facilities, Veteran Affairs hospitals, and prisons.
"Drugs" means both prescription and nonprescription ("over-the-counter") drugs.
"Eligible patient" means an indigent person. However, if the recipient’s supply of donated drugs exceeds the need for donated drugs by indigent patients, then any other person in need of a particular drug can be an eligible patient.
"Eligible recipient" means a pharmacy, wholesaler, reverse distributor, hospital, federally qualified health center, nonprofit clinic, healthcare facility, an entity participating in a drug donation or repository program pursuant to another state’s law, or private office of a healthcare professional that has been authorized by the West Virginia Board of Pharmacy.
"Healthcare facility" means a facility licensed by the State of West Virginia as a:
(1) Nursing home;
(2) Personal care home;
(3) Assisted living community;
(4) Residential care facility for the elderly;
(5) Hospice;
(6) Hospital;
(7) Home health agency; or
(8) A similar entity licensed in the state in which it is located.
"Health care professional" means a person who is licensed by the State of West Virginia to practice as a:
(1) Physician;
(2) Registered nurse or licensed practical nurse;
(3) Physician assistant associate;
(4) Dentist or dental hygienist;
(5) Optometrist; or
(6) Pharmacist
"Indigent patient" means a patient whose income is at or below the income eligibility requirements of the West Virginia Medicaid program, or who is uninsured, underinsured, or enrolled in a public assistance health benefits program.
"Program" means the donated drug repository program established by rule pursuant to §60B-1-8 of this code.
"Transaction date" means the date on which ownership of the drugs is transferred between two participants of the program as established by contract or other arrangement. If no such contract or arrangement exists, the transaction date shall be the date the drug was accepted into inventory by the recipient.
(a) For purposes of this section:
(1) "Government representative" means any officer or employee of the state or a political subdivision thereof, or a person under contract with a state agency or political subdivision thereof.
(2) "Health care worker" means any nurse, nurse practitioner, physician, physician assistant associate or technician practicing at, and all persons employed by or under contract to a hospital, county or district health department, long-term care facility, physician’s office, clinic or outpatient treatment facility.
(3) "Emergency service personnel" means any paid or volunteer firefighter, emergency medical technician, paramedic, or other emergency services personnel employed by or under contract with an emergency medical service provider or a state agency or political subdivision thereof.
(4) "Utility worker" means any individual employed by a public utility or electric cooperative or under contract to a public utility, electric cooperative or interstate pipeline.
(5) "Law-enforcement officer" has the same definition as this term is defined in W.Va. Code §30-29-1, except for purposes of this section, "law-enforcement officer" shall additionally include those individuals defined as "chief executive" in W.Va. Code §30-29-1.
(6) "Correctional employee" means any individual employed by the West Virginia Division of Corrections, the West Virginia Regional Jail Authority, and the West Virginia Division of Juvenile Services and an employee of an entity providing services to incarcerated, detained or housed persons pursuant to a contract with such agencies.
(b) Malicious assault. — Any person who maliciously shoots, stabs, cuts or wounds or by any means causes bodily injury with intent to maim, disfigure, disable or kill a government representative, health care worker, utility worker, emergency service personnel, correctional employee or law-enforcement officer acting in his or her official capacity, and the person committing the malicious assault knows or has reason to know that the victim is acting in his or her official capacity is guilty of a felony and, upon conviction thereof, shall be confined in a correctional facility for not less than three nor more than 15 years.
(c) Unlawful assault. — Any person who unlawfully but not maliciously shoots, stabs, cuts or wounds or by any means causes a government representative, health care worker, utility worker, emergency service personnel, correctional employee or law-enforcement officer acting in his or her official capacity bodily injury with intent to maim, disfigure, disable or kill him or her and the person committing the unlawful assault knows or has reason to know that the victim is acting in his or her official capacity is guilty of a felony and, upon conviction thereof, shall be confined in a correctional facility for not less than two nor more than five years.
(d) Battery. — Any person who unlawfully, knowingly and intentionally makes physical contact of an insulting or provoking nature with a government representative, health care worker, utility worker, emergency service personnel, correctional employee or law-enforcement officer acting in his or her official capacity and the person committing the battery knows or has reason to know that the victim is acting in his or her official capacity, or unlawfully and intentionally causes physical harm to that person acting in such capacity and the person committing the battery knows or has reason to know that the victim is acting in his or her official capacity, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $500 or confined in jail not less than one month nor more than 12 months or both fined and confined. If any person commits a second such offense, he or she is guilty of a felony and, upon conviction thereof, shall be fined not more than $1,000 or imprisoned in a state correctional facility not less than one year nor more than three years, or both fined and imprisoned. Any person who commits a third violation of this subsection is guilty of a felony and, upon conviction thereof, shall be fined not more than $2,000 or imprisoned in a state correctional facility not less than two years nor more than five years, or both fined and imprisoned.
(e) Assault. — Any person who unlawfully attempts to commit a violent injury to the person of a government representative, health care worker, utility worker, emergency service personnel, correctional employee or law-enforcement officer, acting in his or her official capacity and the person committing the battery knows or has reason to know that the victim is acting in his or her official capacity, or unlawfully commits an act which places that person acting in his or her official capacity in reasonable apprehension of immediately receiving a violent injury and the person committing the battery knows or has reason to know that the victim is acting in his or her official capacity, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than 24 hours nor more than six months, fined not more than $200, or both fined and confined.
(f) Any person convicted of any crime set forth in this section who is incarcerated in a facility operated by the West Virginia Division of Corrections or the West Virginia Regional Jail Authority, or is in the custody of the Division of Juvenile Services and is at least eighteen years of age or subject to prosecution as an adult, at the time of committing the offense and whose victim is a correctional employee may not be sentenced in a manner by which the sentence would run concurrent with any other sentence being served at the time the offense giving rise to the conviction of a crime set forth in this section was committed.
(a) The chief medical examiner shall appoint for each county in the state a county medical examiner to serve for a term of three years under the supervision of the chief medical examiner. A county medical examiner shall be medically trained and licensed by the State of West Virginia as a physician, registered nurse, paramedic, emergency medical technician or a physician assistant associate, be certified in the practice of medicolegal death investigation. County medical examiners are authorized to establish the fact of death, and to make investigations into all deaths in their respective counties that come within the provisions of §61-2-8 and §61-2-10 of this code and shall in timely fashion record findings of an investigation using forms prescribed by the chief medical examiner. A county medical examiner may be removed from office for cause at any time by the chief medical examiner. Any vacancy in the office of county medical examiner shall be filled by the chief medical examiner. One person may be appointed to serve as county medical examiner for more than one county, and a county medical examiner need not be a resident of the county which he or she serves. If the chief medical examiner determines that it is necessary, he or she may appoint any person medically trained and licensed by the State of West Virginia as a physician, registered nurse, paramedic, emergency medical technician or a physician assistant associate to act as an assistant county medical examiner for a term of three years. An assistant shall have the same powers and duties as a county medical examiner and shall perform his or her duties under the supervision of the chief medical examiner.
(b) A county medical examiner or his or her assistant county medical examiner shall, at all times, be available to perform the duties required under this article. He or she shall, additionally, be paid a fee, as determined by the chief medical examiner, but only for the actual performance of his or her duties.
(c) County medical examiners and assistant county medical examiners are authorized to determine the cause and manner of death in any case falling within the provisions of section eight of this article, subject to the supervision of the chief medical examiner, and may exercise any of the powers attendant to the investigation of deaths.
The legislative rule filed in the State Register on July 30, 2021, authorized under the authority of §30-37-6 of this code, modified by the West Virginia Massage Therapy Licensure Board to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on September 1, 2021, relating to the West Virginia Massage Therapy Licensure Board (General Provisions, 194 CSR 01), is authorized with the amendment set forth below:
On page 4, subdivision 4.1.h, after the words "written medical directive" by inserting the words "prescribed by a medical doctor, doctor of osteopathy, physician assistant associate, or an advanced practice registered nurse".
(a) The legislative rule filed in the State Register on July 30, 2021, authorized under the authority of §30-3-7 of this code, relating to the West Virginia Board of Medicine (Licensing and Disciplinary Procedures: Physicians, Podiatric Physicians and Surgeons, 11 CSR 01A), is authorized.
(b) The legislative rule filed in the State Register on July 30, 2021, authorized under the authority of §30-3E-3 of this code, modified by the West Virginia Board of Medicine to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on November 2, 2021, relating to the West Virginia Board of Medicine (Licensure, Practice Requirements, Disciplinary and Complaint Procedures, Continuing Education, Physician Assistants, 11 CSR 01B), is authorized.
(c) The legislative rule filed in the State Register on July 30, 2021, authorized under the authority of §30-3-7 of this code, modified by the West Virginia Board of Medicine to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on October 25, 2021, relating to the West Virginia Board of Medicine (Dispensing of Prescription Drugs by Practitioners, 11 CSR 05), is authorized.
(d) The legislative rule filed in the State Register on July 30, 2021, authorized under the authority of §30-3-7 of this code, relating to the West Virginia Board of Medicine (Continuing Education for Physicians and Podiatric Physicians, 11 CSR 06), is authorized.
(e) The legislative rule filed in the State Register on July 30, 2021, authorized under the authority of §60A-9-5a of this code, modified by the West Virginia Board of Medicine to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on October 25, 2021, relating to the West Virginia Board of Medicine (Practitioner Requirements for Accessing the West Virginia Controlled Substances Monitoring Program Database, 11 CSR 10), is authorized.
(f) The legislative rule filed in the State Register on July 30, 2021, authorized under the authority of §30-3-7 of this code, modified by the Board of Medicine to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on October 25, 2021, relating to the West Virginia Board of Medicine (Establishment and Regulation of Limited License to Practice Medicine and Surgery at Certain State Veterans Nursing Home Facilities, 11 CSR 11), is authorized.
(g) The legislative rule filed in the State Register on July 30, 2021, authorized under the authority of §30-3E-3 of this code, modified by the West Virginia Board of Medicine to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on October 25, 2021, relating to the West Virginia Board of Medicine (Registration to Practice During Declared State of Emergency, 11 CSR 14), is authorized.
(h) The legislative rule filed in the State Register on July 30, 2021, authorized under the authority of §30-3-7 of this code, modified by the Board of Medicine to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on December 16, 2021, relating to the Board of Medicine (Telehealth and Interstate Telehealth Registration for Physicians, Podiatric Physicians and Physician Assistants, 11 CSR 15), is authorized with the amendment set forth below:
On page seven, by striking out all of subsection 7.4 and inserting in lieu thereof a new subsection 7.4 to read as follows:
7.4 Nothing in this rule requires a practitioner to use telemedicine technologies to treat a patient if the practitioner, in his or her discretion, determines that an in-person encounter is required.;
And,
On page nine, subsection 8.4, by striking out the words "based solely upon a telemedicine encounter".
(a) The legislative rule filed in the State Register on July 30, 2021, authorized under the authority of §30-14-14 of this code, modified by the West Virginia Board of Osteopathic Medicine to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on September 24, 2021, relating to the West Virginia Board of Osteopathic Medicine (Licensing Procedures for Osteopathic Physicians, 24 CSR 01), is authorized.
(b) The legislative rule filed in the State Register on July 30, 2021, authorized under the authority of §30-3E-3 of this code, modified by the West Virginia Board of Osteopathic Medicine to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on September 29, 2021, relating to the West Virginia Board of Osteopathic Medicine (Osteopathic Physician Assistants, 24 CSR 02), is authorized.
(c) The legislative rule filed in the State Register on July 30, 2021, authorized under the authority of §60A-9-5a of this code, modified by the West Virginia Board of Osteopathic Medicine to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on September 24, 2021, relating to the West Virginia Board of Osteopathic Medicine (Practitioner Requirements for Controlled Substances Licensure and Accessing the West Virginia Controlled Substances Monitoring Program Database, 24 CSR 07), is authorized.
(d) The legislative rule filed in the State Register on July 30, 2021, authorized under the authority of §30-14-14 of this code, modified by the Board of Osteopathic Medicine to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on December 15, 2021, relating to the Board of Osteopathic Medicine (Telehealth Practice and Interstate Telehealth Registration for Osteopathic Physicians and Physician Assistants, 24 CSR 10), is authorized with the amendment set forth below:
On page seven, by striking out all of subsection 7.4 and inserting in lieu thereof a new subsection 7.4 to read as follows:
7.4 Nothing in this rule requires a practitioner to use telemedicine technologies to treat a patient if the practitioner, in his or her discretion, determines that an in-person encounter is required.;
And,
On page nine, subsection 8.4, by striking out the words "based solely upon a telemedicine encounter".
NOTE: The purpose of this bill is to change code references to "physician assistant" to "physician associate." It defines physician associate to be synonymous with any other term that the American Academy of Physician Associates designates as the proper name of the profession formerly known as physician assistant. The bill also corrects one definition of physician associate by establishing that the physician associate is required to have a collaborative relationship with a physician, as opposed to the physician supervising the physician associate, which conforms with the rest of the code.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
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