Senate Bill No. 49
(By Senator Blatnik)
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[Introduced January 18, 1995; referred to the Committee
on Government Organization.]
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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 PROVISION APPLICABLE TO ALL STATE BOARDS OF
EXAMINATION OR REGISTRATION REFERRED TO IN
CHAPTER.
§30-1-1. Application of article.
Unless otherwise specially specifically provided, every
board of examination or registration referred to in this chapter
including the West Virginia board of health, 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 such 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, enumerated in section fifteen of this article
referred to in this chapter. If the total number of members on
any of such these boards after the appointment of one such lay
person is an even number, one additional lay person shall be
appointed. Said These lay members shall serve in addition to any
other members otherwise provided for by law or regulation rules.
Such 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. The 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 such 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 such other business as may
legally come before it. The board may hold such 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 shall constitute constitutes a quorum for the transaction
of its business. The board shall have power 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 such these purposes the president and
secretary of the board shall have the power 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 at least ten days before the date of any examination
to be conducted by such board, and shall transmit with his or her
application an examination fee of twenty dollars, unless a
different fee is specially provided by law, which sum the board
is authorized to charge for an examination or investigation into
such the applicant's qualifications to practice. An applicant
failing to pass an examination satisfactory to the board shall,
at either the first or second succeeding examination conducted by
the board, be entitled to a reexamination without further cost,
but one such reexamination shall exhaust his privilege under his
original application.
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 such
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 a majority of the members and attested by its
president and secretary or executive secretary. Unless otherwise
specially provided, the board shall charge a fee of five dollars
for every license or certificate of registration issued by it,
and a fee of five dollars for every duplicate thereof, which fee
shall be paid before such license or certificate of registration,
or duplicate, is issued: Provided, That an applicant for
registration as nurse shall be granted a certificate of
registration on passing the examination of said board, without
any charge therefor. No license or certificate of registration
granted or issued under the provisions of this chapter shall may
be assignable 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.
(a) (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.
(b) (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 such 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 such
oral or written proof, for or against the accused, as it may deem
advisable. If upon such hearing the board finds that the charges
are true, it may suspend or revoke the certificate, license,
registration or authority, and such suspension or revocation
shall take from the person all rights and privileges acquired
thereby.
The board may resolve any charges by informal disposition,
as provided in section one, article five, chapter twenty-nine of
this code, and may suspend its own decision and place a licensee
heard and found by the board to be in violation of the applicable
practice on probation.
(c) (d) Any person denied a license, certificate,
registration or authority who believes such 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 (b) (c) of this section.
(d) (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.
(e) (f) All proceedings under the provisions of this section
shall be are subject to review by the supreme court of appeals.
§30-1-10. Disposition of moneys; fines; annual audit.
The secretary of every such board referred to in this
chapter shall receive and account for all moneys derived by
virtue of the provisions of this chapter applicable to such
board it, and shall pay them into the state treasury monthly, on or before the tenth day of the month succeeding the month in
which such moneys were received. He shall also, on the first day
of January and July in each year, or within five days
thereafter, certify to the state auditor a detailed statement of
all such moneys received by him during the preceding six months
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 such board shall receive thirty-five
dollars 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 such the board. The secretary shall
receive such salary as may be prescribed by the board, but in
proceedings relative to the fixing of his salary the secretary
shall have no vote. All authorized compensation and all expenses
certified by the board as properly and necessarily incurred in
the discharge of its duties shall be paid out of the state
treasury, from funds appropriated for that purpose, on warrants
of the state auditor issued on requisitions signed by the
president and secretary of 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 such 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 such this action,
the license or registration number, all renewals, of such license
or registration, 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 such 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, and a full
list of the names of all persons licensed or registered by it
during such 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.
The office of the executive secretary of the health
professional licensing boards is hereby created. The health
profession licensing boards shall include those boards provided
for in articles two-a, four, five, six, seven, seven-a, eight,
ten, fourteen, sixteen, seventeen, twenty, twenty-one, twenty-
five and twenty-six of chapter thirty of this code.
Notwithstanding any other provision of this code to the contrary
the office space personnel, records and like business affairs of
the health profession licensing boards shall be within the office
of the executive secretary of the health profession licensing
boards. The secretaries of each of the health profession
licensing boards shall coordinate purchasing, record keeping,
personnel, use of reporters and like matters under the executive
secretary in order to achieve the most efficient and economical
fulfillment of their functions. The executive secretary shall be
appointed by the director of health and shall report to the
director. The executive secretary shall keep the fiscal records
and accounts of each of the boards. The executive secretary shall keep the director informed as to the needs of each of the
boards. The executive secretary shall coordinate the activities
and efforts of the boards with the activities of the health
resources advisory council and shall see that the needs for
health manpower perceived by the boards are communicated to the
health resources advisory council. The executive secretary shall
keep any statistics and information on health professions,
collected by or for the boards and shall make such statistics
and information available to the health resources advisory
council to aid it in carrying out its responsibilities.
(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 claim or cause of action is asserted 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 claim or cause of
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 is liable for all
attorney's fees, costs and expenses incurred by the reporting professional or entity.
(d) Within thirty days of the dismissal, settlement,
adjudication or other termination of any claim or cause of action
asserted against any professional or entity reporting under the
provisions of this chapter, the person or persons filing the
claim or cause of 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 claim or cause of action;
and
(4) The result or disposition of the claim or cause of
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.
NOTE: The purpose of this bill is to provide for annual
registration of professional board officers; increase
accountability in the professions regulated under chapter thirty
by mandating and facilitating disciplinary procedures and
investigations of complaints; limiting the liability of board
members and licensed individuals or entities which act on or
report violations, negligence, impairment and incompetence among
professional colleagues; require boards to establish criteria for
continuing professional education; provide for uniformity in
establishing licensing or registration fees and compensation and
expenses of board members; provide for special accounts in which
fees may be accumulated; provide authority to levy fines;
authorize boards to enter into consent decrees and probation
orders, issue reprimands, and suspend or revoke licenses or other
authorization to practice a profession; and, require annual
statistical reports.
§§30-1-1a and 7a are new, therefore strike-throughs and
underscoring have been omitted.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.