COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 49
(By Senator Blatnik)
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[Originating in the Committee on Government
Organization; reported February 27, 1995.]
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A BILL to amend and reenact sections one, three, four-a, five,
six, seven, eight, ten, eleven, twelve and fifteen,
article one, chapter thirty of the code of West Virginia,
one thousand nine hundred thirty-one, as amended; and to
further amend said article by adding thereto two new
sections, designated sections one-a and seven-a, all
relating to state boards of examination or registration;
application of article; legislative findings and
declaration; registration of officers; bond of secretary;
lay members for professional boards; meetings; quorum;
powers relating to investigations; duties; applications
for licensing; setting of fees; examination of applicants; contents of licenses or certificates; requirements for
continuing education; grounds for denial, suspension or
revocation of license; probation; hearings; disposition of
fees and fines; annual audits; compensation and expenses
of members; records of proceedings; register of
applicants; annual reports; immunity of members;
limitations on liability of reporting professionals;
reporting results of litigation; and penalties.
Be it enacted by the Legislature of West Virginia:
That sections one, three, four-a, five, six, seven, eight,
ten, eleven, twelve and fifteen, article one, chapter thirty of
the code of West Virginia, one thousand nine hundred thirty-
one, as amended, be amended and reenacted; and that said
article be further amended by adding thereto two new sections,
designated sections one-a and seven-a, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS APPLICABLE TO ALL STATE BOARDS
OF EXAMINATION OR REGISTRATION REFERRED TO IN CHAPTER.
§30-1-1. Application of article.
Unless otherwise specifically provided, every board of
examination or registration referred to in this chapter shall
conform to the requirements prescribed in the following sections of this article.
§30-1-1a. Legislative findings and declaration.
The Legislature hereby finds and declares that as a matter
of public policy, the practice of the professions referred to
in this chapter is a privilege and not a natural right of
individuals. The fundamental purpose of licensure and
registration is to protect the public and any license,
registration, certificate or other authorization to practice
issued pursuant to this statute is a revocable privilege.
§30-1-3. Officers; bond of secretary.
Every board referred to in this chapter shall elect
annually from its members a president and a secretary who shall
hold their offices for one year and until their successors are
elected: Provided, That the state board of law examiners, the
state board of examiners for nurses and the state board of
dental examiners may each elect a secretary from outside its
membership. Such officers shall register annually with the
governor, the secretary of administration, the legislative
auditor and the secretary of state. The secretary shall
execute a surety bond conditioned as required by law, which
bond shall be approved by the attorney general as to form and by the auditor as to sufficiency, and, when so approved, shall
be filed and recorded in the office of the secretary of state.
The premium on said bond shall be regarded a proper and
necessary expense of the board.
§30-1-4a. Lay members for professional boards.
Notwithstanding any provisions of this code to the
contrary, the governor shall appoint at least one lay person to
represent the interests of the public on every health
professional licensing board, referred to in this chapter. If
the total number of members on any of these boards after the
appointment of one such lay person is an even number, one
additional lay person shall be appointed. These lay members
shall serve in addition to any other members otherwise provided
for by law or rules. These lay members shall be of the age of
eighteen years or over, of good moral character and competent
to represent and safeguard the interests of the public. Each
lay member is empowered to participate in and vote on all
transactions and businesses of the board, committee or group to
which he or she is appointed.
Any person whose addition to a board as a lay member under
the provisions of this section results in the addition of an odd number of lay additions to the board shall serve for a term
ending in an odd-numbered year on the date in that year on
which terms of the professional members expire; of such members
first appointed, each shall serve for a term ending on such
date in the year one thousand nine hundred seventy-nine, and
the successor to each such person shall serve for a term equal
in length to the terms of the other professional members of the
board. Any person whose addition to a board as a lay member
under the provisions of this section results in the addition of
an even number of lay additions to the board, shall serve for
a term ending in an even-numbered year on the date in that year
on which terms of the professional members expire; of such
members first appointed, each shall serve for a term ending on
such date in the year one thousand nine hundred seventy-eight,
and the successor to each such person shall serve for a term
equal in length to the terms of the other professional members
of the board.
§30-1-5. Meetings; quorum; powers relating to investigations;
duties.
Every board referred to in this chapter shall hold at
least two meetings each year, at such times and places as it may prescribe by rule, for the examination of applicants who
desire to practice their respective professions or occupations
in this state, and for the transaction of other business as may
legally come before it. The board may hold additional meetings
as may be necessary, which shall be called by the secretary at
the direction of the president or upon the written request of
any three members. A majority of the members of the board
constitutes a quorum for the transaction of its business. The
board is authorized to compel the attendance of witnesses, to
issue subpoenas, to conduct investigations and hire an
investigator and to take testimony and proof concerning any
matter within its jurisdiction, and for these purposes the
president and secretary of the board are authorized to
administer oaths.
Every board referred to in this chapter has a duty to, and
shall in a timely manner, investigate and resolve complaints
made to it and shall provide public access to the record of
disposition of complaints made to it in accordance with the
provisions of chapter twenty-nine-b of this code; and every
board has a duty to report, and shall report in a timely manner
upon receiving notice thereof, violations of individual practice acts contained in this chapter by an individual, to
the board by which the individual may be licensed. Every
person licensed or registered by such board has a duty to
report, and shall report in a timely manner, to the board which
licenses or registers him or her, a known or observed violation
of the practice act or the board's rules by any other person
licensed or registered by the same board. Law-enforcement
agencies or their personnel and courts shall report in a timely
manner to the appropriate board any violations of individual
practice acts by any individual.
Whenever a board referred to in this chapter obtains
information that a person subject to its authority has engaged
in, is engaging in or is about to engage in any act which
constitutes or will constitute a violation of the provisions of
this chapter administered and enforced by that board, it may
make application to the circuit court for an order enjoining
the acts and upon a showing that the person has engaged, is
engaging or is about to engage in any such act, an injunction,
restraining order or other order as the court may deem
appropriate shall be entered by the court.
§30-1-6. Application; renewal and single service fees; examination; reexamination.
Every applicant for license or registration under the
provisions of this chapter shall apply therefor in writing to
the proper board and shall transmit with his or her application
an examination fee which the board is authorized to charge for
an examination or investigation into the applicant's
qualifications to practice.
Each board referred to in this chapter is authorized to
establish by rule a deadline for application for examination
which shall be no less than ten nor more than ninety days prior
to the date of the examination.
Boards may set by rule fees relating to the licensing or
registering of individuals, which shall be sufficient to enable
the boards to carry out effectively their responsibilities of
licensure or registration and discipline of individuals subject
to their authority.
§30-1-7. Contents of license or certificate of registration.
Every license or certificate of registration issued by
each board shall bear a serial number, the full name of the
applicant, the date of issuance, the seal of the board and
shall be signed by its president and secretary or executive secretary. No license or certificate of registration granted
or issued under the provisions of this chapter may be assigned.
§30-1-7a. Continuing education.
Each board referred to in this chapter shall establish
continuing education requirements as a prerequisite to license
renewal. Each 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.
§30-1-8. Denial, suspension or revocation of a license or
registration; probation; proceedings; effect of suspension
or revocation; transcript; report; judicial review.
(a) Every board referred to in this chapter is authorized
to suspend or revoke the license of any person convicted of a
felony or who has been found to have engaged in conduct,
practices or acts constituting professional negligence or a
willful departure from accepted standards of professional
conduct. Where any person has been so convicted of a felony or
has been found to have engaged in such conduct, practices or
acts, every board referred to in this chapter is further
authorized to enter into consent decrees, to reprimand, to enter into probation orders; to levy fines not to exceed one
thousand dollars per day per violation; or any of these, singly
or in combination; and further, to assess administrative costs
in addition thereto: Provided, That any costs assessed shall
be placed in the special account of said board and any fine
levied shall be deposited in the state treasury's general
revenue fund. For purposes of this section, the word "felony"
means a felony or crime punishable as a felony under the laws
of this state, the United States or any of them. Every board
referred to in this chapter is authorized to promulgate rules
in accordance with the provisions of chapter twenty-nine-a of
this code to delineate conduct, practices or acts which, in the
judgment of the board, constitute professional negligence, a
willful departure from accepted standards of professional
conduct or which may render an individual unqualified or unfit
for licensure, registration or other authorization to practice.
(b) Notwithstanding any other provision of law to the
contrary, no certificate, license, registration or authority
issued under the provisions of this chapter may be suspended or
revoked without a prior hearing before the board or court
issuing said certificate, license, registration or authority: Provided, That this subsection does not apply in cases where a
board is authorized to suspend or revoke a certificate,
license, registration or authority prior to a hearing if the
individual's continuation in practice constitutes an immediate
danger to the public.
(c) In all proceedings before a board or court for the
suspension or revocation of any certificate, license,
registration or authority issued under the provisions of this
chapter, a statement of the charges against the holder thereof
and a notice of the time and place of hearing shall be served
upon the person as a notice is served under section one,
article two, chapter fifty-six of this code, at least thirty
days prior to the hearing and he or she may appear with
witnesses and be heard in person, by counsel, or both. The
board may take oral or written proof, for or against the
accused, as it may deem advisable. If upon hearing the board
finds that the charges are true, it may suspend or revoke the
certificate, license, registration or authority, and suspension
or revocation shall take from the person all rights and
privileges acquired thereby.
Pursuant to the provisions of section one, article five, chapter twenty-nine-a of this code, informal disposition may
also be made by the board of any contested case by stipulation,
agreed settlement, consent order or default. Further, the board
may suspend its decision and place a licensee found by the
board to be in violation of the applicable practice on
probation.
(d) Any person denied a license, certificate, registration
or authority who believes the denial was in violation of this
article or the article under which said license, certificate,
registration or authority is authorized shall be entitled to a
hearing on the action denying said license, certificate,
registration or authority. Hearings under this subsection
shall be in accordance with the provisions for hearings set
forth in subsection (c) of this section.
(e) A stenographic report of each proceeding on the
denial, suspension or revocation of a certificate, license,
registration or authority shall be made at the expense of the
board and a transcript thereof retained in its files. The
board shall make a written report of its findings, which shall
constitute part of the record.
(f) All proceedings under the provisions of this section are subject to review by the supreme court of appeals.
§30-1-10. Disposition of moneys; fines; annual audit
.
The secretary of every board referred to in this chapter
shall receive and account for all moneys derived by virtue of
the provisions of this chapter applicable to it and shall pay
them into a separate special fund of the state treasury
established for each board where the funds shall be used
exclusively by each board for purposes of administration and
enforcement of its statute: Provided, That when the special
fund of any board accumulates in excess of two times the annual
budget of the board or ten thousand dollars, whichever is
greater, the amount in excess shall be transferred by the state
treasurer to the state general revenue fund: Provided,
however, That any fines levied shall be deposited in the
general revenue fund of the state treasury. The state auditor
shall audit the financial records of each board annually and
shall report to each board and the Legislature as to the audit.
§30-1-11. Compensation of members; expenses.
Each member of every board shall receive an amount not to
exceed one hundred dollars, which amount shall be set by the
board by rule, for each day actually spent in attending the sessions of the board, or of its committees, and in necessary
travel and shall be reimbursed for all actual and necessary
expenses incurred in carrying out the provisions of this
chapter applicable to the board.
§30-1-12. Record of proceedings; register of applicants;
certified copies of records prima facie evidence; report
to governor and Legislature.
The secretary of every board shall keep a record of its
proceedings and a register of all applicants for license or
registration, showing for each the date of his or her
application, his or her name, age, educational and other
qualifications, place of residence, whether an examination was
required, whether the applicant was rejected or a certificate
of license or registration granted, the date of this action,
the license or registration number, all renewals, if required,
and any suspension or revocation thereof. The books and
register of the board shall be open to public inspection at all
reasonable times, and the books and register, or a copy of any
part thereof, certified by the secretary and attested by the
seal of the board, shall be prima facie evidence of all matters
recorded therein.
On or before the first day of January of each year in
which the Legislature meets in regular session the board shall
submit to the governor and to the Legislature a report of its
transactions for the preceding two years, together with an
itemized statement of its receipts and disbursements, a full
list of the names of all persons licensed or registered by it
during that period and statistical reports by county of
practice, by specialty, if appropriate to the particular
profession, and a list of any complaints filed regarding those
so licensed or registered and any action taken thereon,
certified by the president and the secretary. A copy of the
report shall be filed with the secretary of state.
§30-1-15. Civil immunity for board members; liability
limitations of professionals reporting to boards; peer
review committees and professional review committees;
reporting results of litigation to committees; procedure
for imposing penalties.
(a) All members of the boards herein are immune from civil
liability while acting within the scope of their duties as
board members.
(b) Any member of a professional group or organization, who is subject to the provisions of this chapter, including,
but not limited to, doctors of medicine, doctors of
chiropractic, doctors of veterinary medicine, osteopathic
physicians and surgeons, doctors of dentistry, pharmacists,
attorneys-at-law, real estate brokers, architects, professional
engineers, certified public accountants, public accountants,
registered nurses or licensed practical nurses who, pursuant to
the provisions of this chapter, or pursuant to any rule
promulgated by the applicable governing board for that
profession, or pursuant to the rules or by-laws of any peer
review organization, reports or otherwise provides evidence of
the professional negligence, impairment or incompetence of
another member of his or her profession to the governing board
for the profession or to any peer review organization or
committee, is not liable to any person for making such a
report: Provided, That the report is made without actual
malice and in the reasonable belief that the report is
warranted by the facts known to him or her at the time.
(c) If a civil action is brought against a member of any
profession included within the provisions of this chapter,
whether an individual or an entity, as a result of the filing of a report by that member pursuant to the provisions of this
chapter, or the rules of the applicable governing board for
that profession, or pursuant to the rules or by-laws of any
peer review organization or committee, and the civil action is
subsequently dismissed, settled or adjudicated in favor of the
person or entity making the required report, the person or
persons who initiated the claim or action may be liable for all
attorney's fees, costs and expenses incurred by the reporting
professional or entity only if the circuit court finds that the
action was brought with malice or in violation of rule eleven
of the West Virginia rules of civil procedure.
(d) Within thirty days of the dismissal, settlement,
adjudication or other termination of any civil action asserted
against any professional or entity reporting under the
provisions of this chapter, the person or persons filing the
action shall submit to the applicable governing board the
following information:
(1) The parties involved;
(2) The court in which the action was filed, if
applicable;
(3) The basis and nature of the action; and
(4) The result or disposition of the action.
(e) The governing boards of each profession subject to the
provisions of this chapter shall promulgate legislative rules
pursuant to the provisions of chapter twenty-nine-a of this
code, establishing procedures for imposing sanctions and
penalties against any member of the profession who fails to
submit to the board the information required by this section.
(f) The provisions of this section do not preclude the
application of any protection of immunity which may be
otherwise set forth under any article in this chapter.