Senate Bill No. 573
(By Senators Prezioso, McKenzie, Foster, Stollings, Kessler and
Jenkins)
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[Introduced February 14, 2007; referred to the Committee on
Health and Human Resources; and then to the Committee on
Finance.]
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A BILL to amend and reenact
§30-3-9 and §30-3-12
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 to designate 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; and voluntary enrollment
without being subject to disciplinary action if the person
complies with the goals and restrictions of the program.
Be it enacted by the Legislature of West Virginia:
That
§30-3-9 and §30-3-12
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 reporting of
participation in monitored alcohol or other chemical dependency
impairment 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 board reporting his or
her participation in a chemical dependency or alcohol treatment
program or reporting an alcohol or chemical dependency impairment
to the board and seek treatment for his or her dependency.
Pursuant to said agreement the board shall impose limitations on
the practice of said physician, podiatrist, or physician assistant.
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 reporting to the board his or her
participation in a chemical dependency or alcohol treatment program
or reporting to the board his or her alcohol or chemical dependency
impairment and requesting such an agreement for the purpose of
seeking treatment; and 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, or chemical dependency impairment
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 board shall 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 and shall be renewed
upon a receipt of a reasonable fee, as set by the board, submission
of an application on forms provided by the board and, beginning
with the biennial renewal application forms completed by licensees
and submitted to the board in one thousand nine hundred
ninety-three, a certification in accordance with rules and
regulations promulgated by the board in accordance with chapter
twenty-nine-a of this code 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.
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 continuing podiatric education satisfactory to the board is
continuing podiatric education approved by the council on podiatric
education. The application shall not require disclosure of a
voluntary agreement entered into pursuant to subsection (h),
section nine of this article.
In addition, the Legislature hereby finds and declares that it
is in the public interest to encourage alternate categories of
continuing education satisfactory to the board for physicians and
podiatrists. In order to provide adequate notice of the same to
physicians and podiatrists, no later than the first day of June,
one thousand nine hundred ninety-one, the board shall file rules
under the provisions of section fifteen, article three, chapter
twenty-nine-a of this code, delineating any alternate categories of
continuing medical or podiatric education which may be considered
satisfactory to the board and any procedures for board approval of
such continuing education.
Notwithstanding any provision of this chapter to the contrary,
failure to timely submit to the board a certification in accordance
with rules and regulations promulgated by the board in accordance
with chapter twenty-nine-a of this code 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, beginning the first day of July, one
thousand nine hundred ninety-three two thousand seven, result in
the automatic suspension expiration of any license to practice medicine and surgery or podiatry until such time as the
certification in accordance with rules and regulations promulgated
by the board in accordance with chapter twenty-nine-a of this code,
with all supporting written documentation, is submitted to and
approved by the board. The licensee shall pay the renewal fee and
if reinstatement is sought within one year of automatic expiration,
a reinstatement fee equal to fifty percent of the renewal. If more
than one year has passed from automatic expiration, the applicant
shall make a new application and provide supporting written
documentation with the required certification.
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.
(b) 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. His or
her inactive license may be converted by the board to an active one
upon a written request to the board that accounts for his or her
period of inactivity to the satisfaction of the board: Provided,
That beginning on the first day of July, one thousand nine hundred
ninety-three, such licensee 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. 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.
(c) The board shall 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.
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.
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(NOTE: The purpose of this bill is to authorize the West
Virginia Board of Medicine and the West Virginia Board of
Osteopathy to designate 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, and in which these persons may voluntarily
enroll without being subject to disciplinary action if the person
complies with the goals and restrictions of the program.
Strike-throughs indicate language that would be stricken from the
present law, and underscoring indicates new language that would be
added.
Section 30-3D-1, §30-3D-2, §30-3D-3 and §30-14-11a are new;
therefore, strike-throughs and underscoring have been omitted.)
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