Senate Bill No. 49

(By Senator Blatnik)

____________

[Introduced January 18, 1995; referred to the Committee
on Government Organization.]
____________




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.