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Senate Bill 573 History
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ENROLLED
Senate Bill No. 573
(By Senators Prezioso, McKenzie, Foster, Stollings, Kessler and Jenkins)
____________
[Passed March 8, 2007; in effect ninety days from passage.]
____________
AN ACT to
amend and reenact
§30-3-9, §30-3-12 and §30-3-16
of the
Code of West Virginia, 1931, as amended; to amend said code by
adding thereto a new article, designated
§30-3D-1, §30-3D-2
and §30-3D-3; and to amend said code by adding thereto a new
section, designated §30-14-11a
, all relating to authorizing
the West Virginia Board of Medicine and the West Virginia
Board of Osteopathy; designating programs in which physicians,
podiatrists and physician assistants may be monitored while
they pursue treatment and recovery for alcohol abuse, chemical
dependency or major mental illness; enrolling on a voluntary
basis without being subject to disciplinary action if the
person complies with the goals and restrictions of the
program; and requiring licenses for physicians, podiatrists
and physician assistants to expire rather than being suspended
if required continuing education is not documented.
Be it enacted by the Legislature of West Virginia:
That §30-3-9, §30-3-12 and 30-3-16 of the Code of West
Virginia, 1931, as amended, be amended and reenacted; that said
code be amended by adding thereto a new article, designated §30-3D-
1, §30-3D-2 and §30-3D-3, and that said code be amended by adding
thereto a new section, designated §30-14-11a, all to read as
follows:
ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-9. Records of board; expungement; examination; notice; public
information; voluntary agreements relating to alcohol
or chemical dependency; confidentiality of same;
physician-patient privileges.
(a) The board shall maintain a permanent record of the names
of all physicians, podiatrists, and physician assistants, 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 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 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 or applicant
shall be provided written notice within thirty 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 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 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 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 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 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 is in
compliance with the voluntary treatment program and the conditions
and procedures to monitor compliance.
(3) If any physician, podiatrist or physician assistant 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 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 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.
§30-3-12. Biennial renewal of license to practice medicine and
surgery or podiatry; continuing education; rules; fee; inactive license.
(a) A license to practice medicine and surgery or podiatry in
this state is valid for a term of two years.
(b) The license
shall be renewed:
(1)
Upon
receipt of
a
reasonable fee, as set by the board
;
(2)
Submission of an application on forms provided by the
board; and
(3)
A
certification
of participation in and successful
completion of a minimum of fifty hours of continuing medical or
podiatric education satisfactory to the board, as appropriate to
the particular license, during the preceding two-year period.
(c) The application may not require disclosure of a voluntary
agreement entered into pursuant to subsection (h), section nine of
this article.
(d)
Continuing medical education satisfactory to the board
is
continuing medical education designated as Category I by the
American Medical Association or the Academy of Family Physicians
and
alternate categories
approved by the board.
(e)
Continuing podiatric education satisfactory to the board
is continuing podiatric education approved by the Council on
Podiatric Education
and alternate categories
approved by the board.
(f)
Notwithstanding any provision of this chapter to the
contrary,
beginning the first day of July
, two thousand seven,
failure to timely submit to the board a certification
of successful
completion of a minimum of fifty hours of continuing medical or podiatric education satisfactory to the board, as appropriate to
the particular license, shall
result in the automatic
expiration
of
any license to practice medicine and surgery or podiatry until such
time as the certification,
with all supporting written
documentation, is submitted to and approved by the board.
(g) If a license is automatically expired and reinstatement is
sought within one year of the automatic expiration, the former
licensee shall:
(1) Provide certification
with supporting written
documentation of the successful completion of the required
continuing education;
(2)
Pay a renewal fee; and
(3) Pay
a reinstatement fee equal to fifty percent of the
renewal fee.
(h) If a license is automatically expired and
more than one
year has passed since the automatic expiration, the former licensee
shall:
(1) Apply for a new license;
(2) Provide certification
with supporting written
documentation of the successful completion of the required
continuing education; and
(3) Pay such fees as determined by the board.
(i)
Any individual who accepts the privilege of practicing
medicine and surgery or podiatry in this state is required to
provide supporting written documentation of the continuing education represented as received within thirty days of receipt of
a written request to do so by the board. If a licensee fails or
refuses to provide supporting written documentation of the
continuing education represented as received as required in this
section, such failure or refusal to provide supporting written
documentation is prima facie evidence of renewing a license to
practice medicine and surgery or podiatry by fraudulent
misrepresentation.
(j)
The board may renew, on an inactive basis, the license of
a physician or podiatrist who is currently licensed to practice
medicine and surgery or podiatry in, but is not actually
practicing, medicine and surgery or podiatry in this state.
A
physician or podiatrist holding an inactive license shall not
practice medicine and surgery or podiatry in this state.
(k)
An
inactive license may be converted by the board to an
active
license
upon a written request
by the licensee
to the board
that:
(1)
Accounts for his or her period of inactivity to the
satisfaction of the board;
and
(2)
Submits written documentation
of participation in and successful completion of a minimum of fifty
hours of continuing medical or podiatric education satisfactory to
the board, as appropriate to the particular license, during each
preceding two-year period.
(l)
An inactive license may be obtained upon receipt of a
reasonable fee, as set by the board, and submission of an application on forms provided by the board on a biennial basis.
(m) The board may not require any physician or podiatrist who
is retired or retiring from the active practice of medicine and
surgery or the practice of podiatry and who is voluntarily
surrendering their license to return to the board the license
certificate issued to them by the board.
§30-3-16. Physician assistants; definitions; Board of Medicine
rules; annual report; licensure; temporary license;
relicensure; job description required; revocation or
suspension of licensure; responsibilities of supervising
physician; legal responsibility for physician assistants;
reporting by health care facilities; identification;
limitations on employment and duties; fees; continuing
education; unlawful representation of physician assistant as
a physician; criminal penalties.
(a) As used in this section:
(1)
"Approved program" means an educational program for
physician assistants approved and accredited by the committee on
allied health education and accreditation on behalf of the American
Medical Association or its successor;
(2)
"Health care facility" means any licensed hospital,
nursing home, extended care facility, state health or mental
institution, clinic or physician's office;
(3)
"Physician assistant" 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 a physician;
(4)
"Physician assistant-midwife" means a physician assistant
who meets all qualifications set forth under subdivision
(3)
of
this subsection and fulfills the requirements set forth in
subsection (d) of this section, is subject to all provisions of
this section and assists in the management and care of a woman and
her infant during the prenatal, delivery and postnatal periods;
and
(5)
"Supervising physician" means a doctor or doctors of
medicine or podiatry permanently licensed in this state who assume
legal and supervisory responsibility for the work or training of
any physician assistant under his or her supervision.
(b) The board shall promulgate rules pursuant to the
provisions of article three, chapter twenty-nine-a of this code
governing the extent to which physician assistants may function in
this state. The rules shall provide that
the physician assistant
Is
limited to the performance of those services for which he or she is
trained and that he or she
performs only under the supervision and
control of a physician permanently licensed in this state, but that
supervision and control does not require the personal presence of
the supervising physician at the place or places where services are
rendered if the physician assistant's normal place of employment is on the premises of the supervising physician
.
The supervising
physician may send the physician assistant off the premises to
perform duties under his or her direction, but a separate place of
work for the physician assistant may not be established. In
promulgating the rules, the
board shall allow the physician
assistant to perform those procedures and examinations and in the
case of certain authorized physician assistants to prescribe at the
direction of his or her supervising physician in accordance with
subsection
(n)
of this section those categories of drugs submitted
to it in the job description required by this section
. Certain
authorized physician assistants may pronounce death in accordance
with the rules proposed by the board which receive legislative
approval. The board shall compile and publish an annual report that
includes a list of currently licensed physician assistants and
their employers and location in the state.
(c)
The board shall license as a physician assistant any
person who files an application together with a proposed job
description and furnishes satisfactory evidence to it that he or
she has met the following standards:
(1)
Is a graduate of an approved program of instruction in
primary health care or surgery;
(2)
Has passed the certifying examination for a primary care
physician assistant administered by the national commission on
certification of physician assistants and has maintained
certification by that commission so as to be currently certified;
(3)
Is of good moral character; and
(4)
Has attained a baccalaureate or master's degree.
(d)
The board shall license as a physician assistant-midwife
any person who meets the standards set forth under subsection (d)
of this section and, in addition thereto, the following standards:
(1)
Is a graduate of a school of midwifery accredited by the
American college of nurse-midwives;
(2)
Has passed an examination approved by the board;
and
(3)
Practices midwifery under the supervision of a board-
certified obstetrician, gynecologist or a board-certified family
practice physician who routinely practices obstetrics.
(e)
The board may license as a physician assistant any person
who files an application together with a proposed job description
and furnishes satisfactory evidence that he or she is of good moral
character and meets either of the following standards:
(1) He or she is a graduate of an approved program of
instruction in primary health care or surgery prior to the first
day of July, one thousand nine hundred ninety-four, and has passed
the certifying examination for a physician assistant administered
by the national commission on certification of physician assistants
and has maintained certification by that commission so as to be
currently certified; or
(2) He or she had been certified by the board as a physician
assistant then classified as "Type B" prior to the first day of
July, one thousand nine hundred eighty-three.
(f)
Licensure of an assistant to a physician practicing the
specialty of ophthalmology is permitted under this section:
Provided,
That a physician assistant may not dispense a
prescription for a refraction.
(g)
When any graduate of an approved program submits an
application to the board for a physician assistant license,
accompanied by a job description as referenced by this section, the
board shall issue to that applicant a temporary license allowing
that applicant to function as a physician assistant until the
applicant successfully passes the national commission on
certification of physician assistants' certifying examination:
Provided,
That the applicant shall sit for and obtain a passing
score on the examination next offered following graduation from the
approved program.
No applicant shall receive a temporary license
who, following graduation from an approved program, has sat for and
not obtained a passing score on the examination.
A physician
assistant who has not been certified by the National Board of
Medical Examiners on behalf of the national commission on
certification of physician assistants will be restricted to work
under the direct supervision of the supervising physician.
(h)
A physician assistant who has been issued a temporary
license shall, within thirty days of receipt of written notice from
the national commission on certification of physician assistants of
his or her performance on the certifying examination, notify the
board in writing of his or her results. In the event of failure of that examination, the temporary license shall expire and terminate
automatically and the board shall so notify the physician assistant
in writing.
(i)
Any physician applying to the board to supervise a
physician assistant shall affirm that the range of medical services
set forth in the physician assistant's job description are
consistent with the skills and training of the supervising
physician and the physician assistant.
Before a physician assistant
can be employed or otherwise use his or her skills, the supervising
physician and the physician assistant must obtain approval of the
job description from the board.
The board may revoke or suspend any
license of an assistant to a physician for cause, after giving that
assistant an opportunity to be heard in the manner provided by
article five, chapter twenty-nine-a of this code and as set forth
in rules duly adopted by the board.
(j)
The supervising physician is responsible for observing,
directing and evaluating the work, records and practices of each
physician assistant performing under his or her supervision.
He or
she shall notify the board in writing of any termination of his or
her supervisory relationship with a physician assistant within ten
days of the termination.
The legal responsibility for any physician
assistant remains with the supervising physician at all times,
including occasions when the assistant under his or her direction
and supervision, aids in the care and treatment of a patient in a
health care facility.
In his or her absence, a supervising physician must designate an alternate supervising physician,
however, the legal responsibility remains with the supervising
physician at all times.
A health care facility is not legally
responsible for the actions or omissions of the physician assistant
unless the physician assistant is an employee of the facility.
(k)
The acts or omissions of a physician assistant employed by
health care facilities providing inpatient or outpatient services
shall be the legal responsibility of the facilities.
Physician
assistants employed by facilities in staff positions shall be
supervised by a permanently licensed physician.
(l)
A health care facility shall report in writing to the
board within sixty days after the completion of the facility's
formal disciplinary procedure, and also after the commencement, and
again after the conclusion, of any resulting legal action, the name
of any physician assistant practicing in the facility whose
privileges at the facility have been revoked, restricted, reduced
or terminated for any cause including resignation, together with
all pertinent information relating to the action.
The health care
facility shall also report any other formal disciplinary action
taken against any physician assistant by the facility relating to
professional ethics, medical incompetence, medical malpractice,
moral turpitude or drug or alcohol abuse.
Temporary suspension for
failure to maintain records on a timely basis or failure to attend
staff or section meetings need not be reported.
(m)
When functioning as a physician assistant, the physician assistant shall wear a name tag that identifies him or her as a
physician assistant. A two and one-half by three and one-half inch
card of identification shall be furnished by the board upon
licensure of the physician assistant.
(n)
A physician assistant may write or sign prescriptions or
transmit prescriptions by word of mouth, telephone or other means
of communication at the direction of his or her supervising
physician. The board shall promulgate rules pursuant to the
provisions of article three, chapter twenty-nine-a of this code
governing the eligibility and extent to which a physician assistant
may prescribe at the direction of the supervising physician. The
rules shall include, but not be limited to, the following:
(1) Provisions for approving a state formulary classifying
pharmacologic categories of drugs that may be prescribed by a
physician assistant:
(A) The following categories of drugs shall be excluded from
the formulary: Schedules I and II of the Uniform Controlled
Substances Act, anticoagulants, antineoplastic,
radiopharmaceuticals, general anesthetics and radiographic contrast
materials;
(B) Drugs listed under Schedule III shall be limited to a 72-
hour supply without refill;
and
(C) Categories of other drugs may be excluded as determined by
the board;
(2) All pharmacological categories of drugs to be prescribed by a physician assistant shall be listed in each job description
submitted to the board as required in subsection
(i)
of this
section;
(3) The maximum dosage a physician assistant may prescribe;
(4) A requirement that to be eligible for prescription
privileges, a physician assistant shall have performed patient care
services for a minimum of two years immediately preceding the
submission to the board of the job description containing
prescription privileges and shall have successfully completed an
accredited course of instruction in clinical pharmacology approved
by the board; and
(5) A requirement that to maintain prescription privileges, a
physician assistant shall continue to maintain national
certification as a physician assistant and, in meeting the national
certification requirements, shall complete a minimum of ten hours
of continuing education in rational drug therapy in each
certification period. Nothing in this subsection shall be construed
to permit a physician assistant to independently prescribe or
dispense drugs.
(o)
A supervising physician may not supervise at any one time
more than three full-time physician assistants or their equivalent,
except that a physician may supervise up to four hospital-employed
physician assistants. No physician shall supervise more than four
physician assistants at any one time.
(p)
A physician assistant may not sign any prescription, except in the case of an authorized physician assistant at the
direction of his or her supervising physician in accordance with
the provisions of subsection
(n)
of this section.
A physician
assistant may not perform any service that his or her supervising
physician is not qualified to perform.
A physician assistant may
not perform any service that is not included in his or her job
description and approved by the board as provided for in this
section.
(q)
The provisions of this section do not authorize any
physician assistant 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.
(r)
Each application for licensure submitted by a licensed
supervising physician under this section is to be accompanied by a
fee of one hundred dollars.
A fee of fifty dollars is to be charged
for the biennial renewal of the license. A fee of twenty-five
dollars is to be charged for any change of supervising physician.
(s)
As a condition of renewal of physician assistant license,
each
physician assistant shall provide written documentation
of
participation in and successful completion during the preceding
two-year period of continuing education, in the number of hours
specified by the board by rule,
designated
as Category I by the
American Medical Association, American Academy of Physician Assistants or the Academy of Family Physicians and continuing
education, in the number of hours specified by the board by rule,
designated
as Category II by the association or either academy.
(t)
Notwithstanding any provision of this chapter to the
contrary,
beginning the first day of July
, two thousand seven,
failure to timely submit the required written documentation shall
result in the automatic
expiration
of any license as a physician
assistant until the written documentation is submitted to and
approved by the board.
(u) If a license is automatically expired and reinstatement is
sought within one year of the automatic expiration, the former
licensee shall:
(1) Provide certification
with supporting written
documentation of the successful completion of the required
continuing education;
(2)
Pay a renewal fee; and
(3) Pay
a reinstatement fee equal to fifty percent of the
renewal fee.
(v) If a license is automatically expired and
more than one
year has passed since the automatic expiration, the former licensee
shall:
(1) Apply for a new license;
(2) Provide certification
with supporting written
documentation of the successful completion of the required
continuing education; and
(3) Pay such fees as determined by the board.
(w)
It is unlawful for any physician assistant to represent to
any person that he or she is a physician, surgeon or podiatrist.
Any person who violates the provisions of this subsection is guilty
of a felony and, upon conviction thereof, shall be imprisoned in
the penitentiary for not less than one nor more than two years, or
be fined not more than two thousand dollars, or both fined and
imprisoned.
(x)
All physician assistants holding valid certificates issued
by the board prior to the first day of July, one thousand nine
hundred ninety-two, shall be considered to be licensed under this
section.
ARTICLE 3D. PHYSICIAN HEALTH PROGRAMS.
§30-3D-1. Definitions.
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" 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.
§30-3D-2. Physician health program.
(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
with a qualifying illness;
(2) Provide for the education of physicians, podiatrists and
physicians' assistants 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 for purposes of assessment or
treatment or both for a qualifying illness;
(4) Monitor the status of a physician, podiatrist or
physicians' assistant 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 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 participating in a voluntary agreement as provided
herein.
(c) The fact that a physician, physician's assistant or
podiatrist is participating in a designated physician health
program is confidential, as is all physicians, podiatrists or
physicians assistants 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.
§30-3D-3. Discretionary authority of boards to designate programs.
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 to the creation or
designation of a physician health program for any individual
qualifying illness or group of qualifying illnesses.
ARTICLE 14. OSTEOPATHIC PHYSICIANS AND SURGEONS.
§30-14-11a. Records of board; expungement; examination; notice;
public information; voluntary agreements relating to alcohol
or chemical dependency; confidentiality of same;
physician-patient privileges.
(a) The board shall maintain a permanent record of the names
of all osteopathic physicians and osteopathic physician assistants,
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,
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
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
or applicant shall be provided written notice within thirty 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 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 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 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 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 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 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 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 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 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.