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Introduced Version - Originating in Committee House Bill 302 History

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Key: Green = existing Code. Red = new code to be enacted

WEST VIRGINIA LEGISLATURE

2022 THIRD EXTRAORDINARY SESSION

Originating

House Bill 302

By Delegates Jeffries, Pack, Jennings, Dean, Honaker, G. Ward, Rowan, Worrell, Mallow, Forsht, and Miller

[Originating in the Committee on Health and Human Resources; Reported on July 25, 2022]


 

A BILL to amend and reenact §9-2-11 of the code of West Virginia, 1931, as amended; to amend and reenact §16-2F-9 of said code; of said code; to amend and reenact §16-2I-9 of said code; to amend and reenact §16-2O-1 of said code; to amend and reenact §16-2P-1 of said code; to amend and reenact §16-2Q-1 of said code; to amend said code by adding thereto a new article designated, §16-2R-1, §16-2R-2,  §16-2R-3, §16-2R-4, §16-2R-5, 16-2R-6 and §16-2R-7; to amend and reenact §30-1-26 of said code; to amend and reenact §33-42-8 of said code; to amend and reenact §61-2-8 of said code; all relating to abortion. 

Be it enacted by the Legislature of West Virginia:


CHAPTER 9. HUMAN SERVICES.

ARTICLE 2. COMMISSIONER OF HUMAN SERVICES; POWERS, DUTIES AND RESPONSIBILITIES GENERALLY.


§9-2-11. Limitation on use of funds.

(a) No funds from the Medicaid program accounts may be used to pay for the performance of an abortion by surgical or chemical means unless the abortion is permitted by §16-2R-3.

(1) On the basis of the physician’s best clinical judgment, there is:

(i) A medical emergency that so complicates a pregnancy as to necessitate an immediate abortion to avert the death of the mother or for which a delay will create grave peril of irreversible loss of major bodily function or an equivalent injury to the mother: Provided, That an independent physician concurs with the physician’s clinical judgment; or

(ii) Clear clinical medical evidence that the fetus has severe congenital defects or terminal disease or is not expected to be delivered; or

(2) The individual is a victim of incest or the individual is a victim of rape when the rape is reported to a law-enforcement agency.

(b) The Legislature intends that the state’s Medicaid program not provide coverage for abortion on demand and that abortion services be provided only as expressly provided for in this section.


CHAPTER 16. PUBLIC HEALTH.

ARTICLE 2F. PARENTAL NOTIFICATION OF ABORTIONS PERFORMED ON UNEMANCIPATED MINORS.


§16-2F-9. Severability.

The provisions of subsection (cc), section ten, article two, chapter two of this code shall apply to the provisions of this article to the same extent as if said subsection were set forth in extenso herein.

            Effective from the date of passage, this article is no longer effective unless any provision of §16-2R-1 et seq. or any provision of §61-2-8 is found to be unconstitutional as provided in §16-2R-7.

ARTICLE 2I. WOMEN’S RIGHT TO KNOW ACT.


§16-2I-9. Severability.

If any one or more provision, section, subsection, sentence, clause, phrase or word of this article or the application thereof to any person or circumstance is found to be unconstitutional, the same is hereby declared to be severable and the balance of this article shall remain effective notwithstanding such unconstitutionality. The Legislature hereby declares that it would have passed this article, and each provision, section, subsection, sentence, clause, phrase or word thereof, irrespective of the fact that any one or more provision, section, subsection, sentence, clause, phrase or word be declared unconstitutional.

Effective from the date of passage, this article is no longer effective unless any provision of §16-2R-1 et seq. or any provision of §61-2-8 is found to be unconstitutional as provided in §16-2R-7.

ARTICLE 2O. UNBORN CHILD PROTECTION FROM DISMEMBERMENT ABORTION ACT.

§16-2O-1. Unborn Child Protection from Dismemberment Abortion Act.


(a) Definitions. — For purposes of this section:

(1) “Abortion” means the same as that term is defined in section two, article two-f, chapter sixteen of this code.

(2) “Attempt to perform an abortion” means the same as that term is defined in section two, article two-m, chapter sixteen of this code.

(3) “Dismemberment abortion” means, with the purpose of causing the death of an unborn child, purposely to dismember a living unborn child and extract him or her one piece at a time from the uterus through use of clamps, grasping forceps, tongs, scissors or similar instruments that, through the convergence of two rigid levers, slice, crush or grasp a portion of the unborn child’s body to cut or rip it off.  The term “dismemberment abortion” includes an abortion in which a dismemberment abortion is performed to cause the death of an unborn child but suction is subsequently used to extract fetal parts after the death of the unborn child. The term “dismemberment abortion” does not include an abortion which uses suction to dismember the body of the unborn child by sucking fetal parts into a collection container, an abortion following fetal demise which uses a suction curette, suction curettage or forceps to dismember the body of a dead unborn child, or when forceps are used following an induced fetal demise by other means.   

(4)  “Medical emergency” means the same as that term is defined in section two, article two-m, chapter sixteen of this code.

 (5) “Physician” means the same as that term is defined in section two, article two-m, chapter sixteen of this code.

 (6) “Reasonable medical judgement” means the same as that term is defined in section two, article two-M, chapter sixteen of this code.

 (7) “Woman” means a female human being whether or not she has reached the age of majority.

(b)  Prohibition. —

No person may perform, or attempt to perform, a dismemberment abortion as defined in this section, unless in reasonable medical judgment the woman has a condition that, on the basis of reasonable medical judgment, so complicates her medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions.  No condition may be deemed a medical emergency if based on a claim or diagnosis that the woman will engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function.

(c) Enforcement. — 

(1) Any physician or other licensed medical practitioner who intentionally or recklessly performs or induces an abortion in violation of this article is considered to have acted outside the scope of practice permitted by law or otherwise in breach of the standard of care owed to patients, and is subject to discipline from the applicable licensure board for that conduct, including, but not limited to, loss of professional license to practice.

(2) Any person, not subject to subdivision (1) of this subsection, who intentionally or recklessly performs or induces an abortion in violation of this article is considered to have engaged in the unauthorized practice of medicine in violation of section thirteen, article three, chapter thirty of this code, and, upon conviction, subject to the penalties contained in that section.

(3) In addition to the penalties set forth in subdivisions (1) and (2) of this section, a patient may seek any remedy otherwise available to such patient by applicable law.

(4) No penalty may be assessed against any patient upon whom an abortion is performed or induced or attempted to be performed or induced.

 (d) Miscellaneous Provisions. —

 (1) This section does not prevent an abortion by any other method for any reason including rape and incest.

(2) Nothing in this section may be construed as creating or recognizing a right to abortion, nor a right to a particular method of abortion.

(e) Effective from the date of passage, this section is no longer effective unless any provision of §16-2R-1 et seq. or any provision of §61-2-8 is found to be unconstitutional as provided in §16-2R-7.

ARTICLE 2P. BORN-ALIVE ABORTION SURVIVORS PROTECTION ACT.

§16-2P-1. Born-Alive Abortion Survivors Protection Act.


(a) Definitions. — For purposes of this section:

(1) “Abortion” has the same meaning as that set forth in §16-2F-2 of this code.

(2) “Attempt to perform an abortion” has the same meaning as that set forth in §16-2M-2 of this code.

(3) “Born alive” means the complete expulsion or extraction from its mother of the fetus, at any stage of development, who after such expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.

(4) “Fetus” has the same meaning as that set forth in §16-2M-2 of this code.

(5) “Licensed Medical Professional” means a person licensed under Chapter 30 of this code practicing within his or her scope of practice.

(6) “Physician” has the same meaning as set forth in §16-2M-2 of this code.

(7) “Reasonable medical judgment” has the same meaning as set forth in §16-2M-2 of this code.

(b) Prohibition. —

(1) If a physician performs or attempts to perform an abortion that results in a child being born alive the physician shall:

(A) Exercise the same degree of reasonable medical judgment to preserve the life and health of the child as a physician would render to any other child born alive at the same gestational age; and

(B) Ensure that the child born alive is immediately transported and admitted to a hospital.

(2) A person who has knowledge of a failure to comply with the requirements of this subsection shall report the failure to the applicable licensing board.

(c) Enforcement. —

(1) Any physician or other licensed medical professional who knowingly and willingly violates subsection (b) of this section is considered to have breached the standard of care owed to patients, and is subject to discipline from the applicable licensure board for that conduct, including, but not limited to, loss of professional license to practice.

(2) Any person, not subject to subdivision (1) of this subsection, who knowingly and willfully violates subsection (b) of this section is guilty of the unauthorized practice of medicine in violation of §30-3-13 of this code, and, upon conviction thereof, is subject to the penalties contained in that section.

(3) In addition to the penalties set forth in this section, a patient may seek any remedy otherwise available to the patient by applicable law.

(4) No penalty may be assessed against any patient upon whom an abortion is performed or attempted to be performed.

(d) Effective from the date of passage, this section is no longer effective unless any provision of §16-2R-1 et seq. or any provision of §61-2-8 is found to be unconstitutional as provided in §16-2R-7.


ARTICLE 2Q. UNBORN CHILD WITH A DISABILITY PROTECTION AND EDUCATION ACT.

§16-2Q-1.  Abortion may not be performed because of a disability, except in a medical emergency.

(a) As used in this article:

“Abortion” means the same as that term is defined in §16-2F-2 of this code.

“Attempt to perform or induce an abortion” means the same as that term is defined in §16-2M-2 of this code.

“Because of a disability” means on account of the presence or presumed presence of a disability or diagnosis in a fetus including, but not limited to, chromosomal disorders or morphological malformations occurring as the result of atypical gene expressions.

“Commissioner” means the Commissioner of the Bureau for Public Health.

“Licensed medical professional” means a person licensed under Chapter 30 of this code practicing within his or her scope of practice.

“Medical emergency” means the same as that term is defined in §16-2I-1 of this code.

“Nonmedically viable fetus” means the same as that term is defined in §16-2M-2 of this code.

“Reasonable medical judgment” means the same as that term is defined in §16-2M-2 of this code.

(b) Except in a medical emergency or a nonmedically viable fetus, a licensed medical professional may not perform or attempt to perform or induce an abortion, unless the patient acknowledges that the abortion is not being sought because of a disability.  The licensed medical professional shall document these facts in the patient’s chart and report such with the commissioner.

(c) Except in a medical emergency or a nonmedically viable fetus, a licensed medical professional may not intentionally perform or attempt to perform or induce an abortion of a fetus, if the abortion is being sought because of a disability.

(d) (1) If a licensed medical professional performs or induces an abortion on a fetus, the licensed medical professional shall, within 15 days of the procedure, cause to be filed with the commissioner, on a form supplied by the commissioner, a report containing the following information:

(A) Date the abortion was performed;

(B) Specific method of abortion used;

(C) A statement from the patient confirming that the reason for the abortion was not because of a disability;

(D) Probable health consequences of the abortion to the patient;

(E) Whether a medical emergency existed; and

(F) Whether the fetus was a nonmedically viable fetus.

(2) The licensed medical professional shall sign the form as his or her attestation under oath that the information stated is true and correct to the best of his or her knowledge.

(3) Reports required and submitted under this section may not contain the name of the patient upon whom the abortion was performed or any other information or identifiers that would make it possible to identify, in any manner or under any circumstances, a woman who obtained or sought to obtain an abortion.

(g) A licensed medical professional that administers, or causes to be administered, a test for a disability or diagnosis to a fetus shall provide the patient with educational information made available by the bureau as provided in this section, within a reasonable time, if the test result confirms the presence of a disability.

(h) The Bureau for Public Health shall make the following available through the bureau’s publicly accessible internet website:

(1) Up-to-date, evidence-based information about any in-utero disability or diagnosis that has been peer reviewed by medical experts and any national disability rights organizations. The information provided shall include the following:

(A) Physical, developmental, educational, and psychosocial outcomes;

(B) Life expectancy;

(C) Clinical course;

(D) Intellectual and functional development;

(E) Treatment options; and

(F) Any other information the bureau deems necessary;

(2) Contact information regarding first call programs and support services, including the following:

(A) Information hotlines specific to any in-utero fetal disabilities or conditions;

(B) Relevant resource centers or clearinghouses;

(C) Information about adoption specific to disabilities;

(D) National and local disability rights organizations; and

(E) Education and support programs.

(i)The information provided in accordance with this section shall conform to the applicable standard or standards provided in the Enhanced National Standards for Culturally and Linguistically Appropriate Services in Health and Health Care as adopted by the United States Department of Health and Human Services and published in the Federal Register on September 24, 2013.

(j) A licensed medical professional who intentionally or recklessly performs or induces an abortion in violation of this section is considered to have acted outside the scope of practice permitted by law or otherwise in breach of the standard of care owed to a patient, and is subject to discipline from the applicable licensure board for that conduct, including, but not limited to, loss of professional license to practice.

(k) A person, not subject to subsection (f) of this section, who intentionally or recklessly performs or induces an abortion in violation of this article is considered to have engaged in the unauthorized practice of medicine in violation of §30-3-13 of this code, and upon conviction, subject to the penalties contained in that section.

(l) A penalty may not be assessed against any patient upon whom an abortion is performed or induced or attempted to be performed or induced.

(m) Effective from the date of passage, this article is no longer effective unless any provision of §16-2R-1 et seq. or any provision of §61-2-8 is found to be unconstitutional as provided in §16-2R-7.

ARTICLE 2R. UNBORN CHILD PROTECTION ACT.


§16-2R-1. Legislative findings.

The Legislature finds that the State of West Virginia has a legitimate interest to prohibit abortion. As provided in §6-57 of the WV Constitution, “Nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion.”


§16-2R-2. Definitions.

For purposes of this article:

Abortion” means the use of any instrument, medicine, drug, or any other substance or device with intent to terminate the pregnancy.

“Attempt to perform or induce an abortion” means an act or an omission of an act that, under the circumstances as the person believes them to be, constitutes a substantial step in a course of conduct planned to culminate in the performance or induction of an abortion.

“Contraceptive” means the prevention of pregnancy by interfering with the normal process of ovulation, fertilization, and implantation.

“Ectopic pregnancy” means a pregnancy in which the fetus develops outside the uterus, typically in a fallopian tube.

“Embryo” means the developing human pregnancy from the time of fertilization until the end of the eighth week of gestation.

“Fertilization” means the fusion of a human spermatozoon with a human ovum.

“Fetal tissue research” means tissue or cells obtained from a dead human embryo or fetus after a spontaneous or induced abortion or stillbirth.

“Fetus” means the developing young human in the uterus, specifically the unborn offspring in the postembryonic period from nine weeks after fertilization until birth.

“Licensed Medical Professional” means a person licensed under §30-1-1 et seq. of this code practicing within his or her scope of practice.

“Implantation” means when a fertilized egg has attached to the lining of the uterine wall.

“In vitro fertilization” means a complex series of procedures used to help with fertility or prevent genetic problems and assist with the conception of a child.

“Medical emergency” means a condition that so complicates the medical condition of a patient as to necessitate an immediate abortion to avert the patient’s death or for which a delay will create serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions. A condition is not deemed a medical emergency if based on a claim or diagnosis that the patient intends or may engage in conduct which results in the patient’s death or in substantial and irreversible physical impairment of a major bodily function.

“Miscarriage” means the spontaneous loss of a fetus before the 20th week of pregnancy.

“Nonmedically viable fetus” means a fetus that contains sufficient lethal fetal anomalies so as to render the fetus medically futile or incompatible with life outside the womb.

“Partial-birth abortion” means an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery.

“Pregnancy” means when a fertilized egg has implanted in the wall of a uterus.

“Reasonable medical judgment” means a medical judgment that would be made by a licensed medical professional, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.

“Stillbirth” means the loss of a fetus after the 19th week of pregnancy.

“Unemancipated minor” means any person less than 18 years of age who is not, or has not been, married, who is under the care, custody, and control of the person’s parent or parents, guardian, or court of competent jurisdiction pursuant to applicable federal law or as provided in §49-4-115 of this code.


§16-2R-3. Prohibition to perform an abortion.

An abortion may not be performed or induced or be attempted to be performed or induced unless in the reasonable medical judgment of a licensed medical professional:

(A) there exists a nonmedically viable fetus;

(B) there exists an ectopic pregnancy; or

(C) there exists a medical emergency.


§16-2R-4. Not considered an abortion.

(a) An abortion does not include:

(1) A miscarriage;

(2) A stillbirth;

(3) The use of existing established cell lines derived from aborted human embryos or fetuses;

(4) Medical treatment provided to patient by a licensed medical professional that results in the accidental death of or unintentional injury or death of a fetus;

(5) In vitro fertilization; and

(6) Human fetal tissue research, when performed in accordance with Sections 498A and 498B of the PHS Act (42 U.S.C. 289g-1 and 289g-2) and 45 C.F.R. 46.204 and 46.206.

(b) This article does not prevent the prescription, sale, transfer or use of contraceptive devices, instruments, medicines or drugs.

§16-2R-5. Requirements if an abortion is performed.


 (a) If an abortion is performed on an unemancipated minor pursuant to §16-2R-3(a)(1)(A)-(B), the licensed medical professional may not perform an abortion until notice of the pending abortion as required by this section is complete.

(b) A licensed medical professional or his or her agent may personally give notice directly, in person or by telephone to the parent, the guardian or conservator of the unemancipated minor at their usual place of residence.  Upon delivery of the notice, forty-eight hours shall pass until the abortion may be performed.

(c) A licensed medical professional or his or her agent may provide notice by certified mail addressed to the parent, the guardian or conservator of the unemancipated minor at their usual place of residence, return receipt requested. The delivery shall be sent restricted delivery assuring that the letter is delivered only to the addressee. Time of delivery shall be deemed to occur at twelve o’clock noon on the next day on which regular mail delivery takes place unless. Upon delivery of the notice, forty-eight hours shall pass until the abortion may be performed.

(d) Notice may be waived if the person entitled to notice certifies in writing that he or she has been notified.

 (e) An unemancipated minor who objects to the notice being given to a parent or legal guardian may petition for a waiver of the notice to the circuit court of the county in which the unemancipated minor resides or in which the abortion is to be performed, or to the judge of either of such courts.

(f) The petition need not be made in any specific form and shall be sufficient if it fairly sets forth the facts and circumstances of the matter, but shall contain the following information:

(1) The age and educational level of the unemancipated minor;

(2) The county and state in which the unemancipated minor resides; and

(3) A brief statement of the unemancipated minor’s reason or reasons for the desired waiver of notification of the parent or guardian of such unemancipated minor.

A patient petition may not be dismissed nor may any hearing thereon be refused because of any defect in the form of the petition.

(g) The Attorney General shall prepare suggested form petitions and accompanying instructions and shall make the same available to the clerks of the circuit courts. The clerks shall make the form petitions and instructions available in the clerk’s office.

(h) The proceedings held pursuant to this section shall be confidential and the court shall conduct the proceedings in camera. The court shall inform the unemancipated minor of her right to be represented by counsel. If the unemancipated minor is without the requisite funds to retain the services of an attorney, the court will appoint an attorney to represent the unemancipated minor’s interest in the matter. If the unemancipated minor desires the services of an attorney, an attorney shall be appointed to represent the unemancipated minor, if the unemancipated minor advises the court under oath or affidavit that the unemancipated minor is financially unable to retain counsel. An attorney appointed to represent the unemancipated minor shall be appointed and paid for his services pursuant to the provisions of §29-21-1 et seq. . The pay shall not exceed the sum of $100.

(i) The court shall conduct a hearing upon the petition without delay, but may not exceed the next succeeding judicial day. The court shall render its decision immediately upon its submission and, its written order not later than twenty-four hours and entered in the record by the clerk of the court. All testimony, documents, evidence, petition, orders entered thereon and all records relating to the matter shall be sealed by the clerk and shall not be opened to any person except upon order of the court upon a showing of good cause. A separate order book for the purposes of this article shall be maintained by the clerk and shall be sealed and not open to inspection by any person save upon order of the court for good cause shown.

(j) Notice as required by this section shall be ordered waived by the court if the court finds either:

(1) That the unemancipated minor is mature and well informed sufficiently to make the decision to proceed with the abortion independently and without the notification or involvement of her parent or legal guardian; or

(2) That notification to the person or persons to whom notification would otherwise be required would not be in the best interest of the unemancipated minor.

 (k) A confidential appeal shall be available to any unemancipated minor to whom a court denies an order authorizing an abortion without notification. An order authorizing an abortion without notification may not be appealed. Access to the trial court and the Supreme Court of Appeals shall be given to an unemancipated minor.

(l) Filing fees are not required of any unemancipated minor who avails herself of any of the procedures provided by this section.

(m) (1) If a licensed medical professional performs or induces an abortion on a fetus, the licensed medical professional shall, within 15 days of the procedure, cause to be filed with the commissioner, on a form supplied by the commissioner, a report containing the following information:

(A) Date the abortion was performed;

(B) Specific method of abortion used; and

(C) The exemption, under which, the abortion was performed;

(2) The licensed medical professional shall sign the form as his or her attestation under oath that the information stated is true and correct to the best of his or her knowledge.

(3) Reports required and submitted under this subsection may not contain the name of the patient upon whom the abortion was performed or any other information or identifiers that would make it possible to identify, in any manner or under any circumstances, a patient who obtained or sought to obtain an abortion.

(n) An abortion performed pursuant to §16-2R-3 may not use the partial birth abortion procedure.

(o)  In addition to the requirements provided in this section, if an abortion is performed in accordance with the provisions of §16-2R-3(a)(2), the licensed medical professional shall perform an ultrasound.  The licensed medical professional shall provide the patient with the opportunity to view or decline to view an active ultrasound image of the fetus.


§16-2R-6. Penalties.

(a) The criminal penalty established in §61-2-8 applies to this section. This is subsection is effective 90 days from passage.

(b) A licensed medical professional who violates the provisions of this article is considered to have acted outside the scope of practice permitted by law or otherwise in breach of the standard of care owed to a patient, and is subject to discipline from the applicable licensure board for that conduct, including, but not limited to, loss of professional license to practice.

(c) A licensed medical professional charged pursuant to §61-2-8 may seek a hearing before his or her licensure board on the issue of whether the licensed medical professional’s act was necessary to save the life of the patient. The findings of the licensure board are admissible on this issue at the trial of the license medical professional. Upon a motion by the defendant, the court shall delay the beginning of trial for not more than thirty days to permit the licensure board hearing to take place.

(d) This article may not be construed to subject a mother to a criminal penalty for any violation of this article and §61-2-8.


§16-2R-7. Severability.

            If any provision of this article or any provision of §61-2-8 is found to be unconstitutional, this entire article is deemed to be unconstitutional and the provisions of §16-2F-1 et seq., §16-2I-1 et seq., §16-2O-1, §16-2P-1, §16-2Q-1, and §33-42-8 immediately become effective.

CHAPTER 30. PROFESSIONS AND OCCUPATIONS.


ARTICLE 1. GENERAL PROVISIONS APPLICABLE TO ALL STATE BOARDS OF EXAMINATION OR REGISTRATION REFERRED TO IN CHAPTER.


§30-1-26. Telehealth practice.


(a) For the purposes of this section:

“Abortifacient” means mifepristone, misoprostol or any other chemical or drug dispensed with the intent of causing an abortion.

“Established patient” means a patient who has received professional services, face-to-face, from the physician, qualified health care professional, or another physician or qualified health care professional of the exact same specialty and subspecialty who belongs to the same group practice, within the past three years.

“Health care practitioner” means a person authorized to practice under §30-3-1 et seq., §30-3E-1 et seq., §30-4-1 et seq., §30-5-1 et seq., §30-7-1 et seq., §30-7A-1 et seq., §30-8-1 et seq., §30-10-1 et seq., §30-14-1 et seq., §30-16-1 et seq., §30-20-1 et seq., §30-20A-1 et seq., §30-21-1 et seq., §30-23-1 et seq., §30-26-1 et seq., §30-28-1 et seq., §30-30-1 et seq., §30-31-1 et seq., §30-32-1 et seq., §30-34-1 et seq., §30-35-1 et seq., §30-36-1 et seq., §30-37-1 et seq. and any other person licensed under this chapter that provides health care services.

“Interstate telehealth services” means the provision of telehealth services to a patient located in West Virginia by a health care practitioner located in any other state or commonwealth of the United States.

“Registration” means an authorization to practice a health profession regulated by §30-1-1 et seq. of this code for the limited purpose of providing interstate telehealth services within the registrant’s scope of practice.

“Telehealth services” means the use of synchronous or asynchronous telecommunications technology or audio only telephone calls by a health care practitioner to provide health care services, including, but not limited to, assessment, diagnosis, consultation, treatment, and monitoring of a patient; transfer of medical data; patient and professional health-related education; public health services; and health administration. The term does not include internet questionnaires, e-mail messages, or facsimile transmissions.

(b) Unless provided for by statute or legislative rule, a health care board, referred to in §30-1-1 et seq. of this code, shall propose an emergency rule for legislative approval in accordance with the provisions of §29A-3-15 et seq. of this code to regulate telehealth practice by a telehealth practitioner. The proposed rule shall consist of the following:

(1) The practice of the health care service occurs where the patient is located at the time the telehealth services are provided;

(2) The health care practitioner who practices telehealth shall be:

(A) Licensed in good standing in all states in which he or she is licensed and not currently under investigation or subject to an administrative complaint; and

(B) Registered as an interstate telehealth practitioner with the appropriate board in West Virginia;

(3) When the health care practitioner-patient relationship is established;

(4) The standard of care for the provision of telehealth services.  The standard of care shall require that with respect to the established patient, the patient shall visit an in-person health care practitioner within 12 months of using the initial telemedicine service or the telemedicine service shall no longer be available to the patient until an in-person visit is obtained.  This requirement may be suspended, in the discretion of the health care practitioner, on a case-by-case basis, and it does not to the following services: acute inpatient care, post-operative follow-up checks, behavioral medicine, addiction medicine, or palliative care;

(5) A prohibition of prescribing any controlled substance listed in Schedule II of the Uniform Controlled Substance Act, unless authorized by another section: Provided, That the prescribing limitations contained in this section do not apply to a physician or a member of the same group practice with an established patient;

(6) Establish the conduct of a registrant for which discipline may be imposed by the board of registration;

(7) Establish a fee, not to exceed the amount to be paid by a licensee, to be paid by the interstate telehealth practitioner registered in the state;

(8) A reference to the Board’s discipline process; and

(9) A prohibition of prescribing or dispensing an abortifacient.

(c) A registration issued pursuant to the provisions of or the requirements of this section does not authorize a health care professional to practice from a physical location within this state without first obtaining appropriate licensure.

(d) By registering to provide interstate telehealth services to patients in this state, a health care practitioner is subject to:

(1) The laws regarding the profession in this state, including the state judicial system and all professional conduct rules and standards incorporated into the health care practitioner’s practice act and the legislative rules of registering board; and

(2) The jurisdiction of the board with which he or she registers to provide interstate telehealth services, including such board’s complaint, investigation, and hearing process.

(e) A health care professional who registers to provide interstate telehealth services pursuant to the provisions of or the requirements of this section shall immediately notify the board where he or she is registered in West Virginia and of any restrictions placed on the individual’s license to practice in any state or jurisdiction.

(f) A person currently licensed in this state is not subject to registration but shall practice telehealth in accordance with the provisions of this section and the rules promulgated thereunder.

ARTICLE 42. WOMEN’S ACCESS TO HEALTH CARE ACT.


§33-42-8. Partial-birth abortions prohibited; criminal penalties; exceptions; hearings by state Board of Medicine.

(a) Any person who knowingly performs a partial-birth abortion and thereby kills a human fetus is guilty of a felony and, shall be fined not less than $10,000, nor more than $50,000, or imprisoned not more than two years, or both fined and imprisoned. This section does not apply to a partial-birth abortion that is necessary to save the life of a mother when her life is endangered by a physical disorder, illness or injury.

(b) A physician charged pursuant to this section may seek a hearing before the West Virginia Board of Medicine on the issue of whether the physician’s act was necessary to save the life of a mother pursuant to the provisions of subsection (a) of this section. The findings of the Board of Medicine are admissible on this issue at the trial of the physician. Upon a motion by the defendant, the court shall delay the beginning of trial for not more than thirty days to permit the Board of Medicine hearing to take place.

(c) No woman may be prosecuted under the provisions of this section for having a partial-birth abortion, nor may she be prosecuted for conspiring to violate the provisions of this section.

(d) Effective from the date of passage, this section is no longer effective unless any provision of §16-2R-1 et seq. or any provision of §61-2-8 is found to be unconstitutional as provided in §16-2R-7.

CHAPTER 61. CRIMES AND THEIR PUNISHMENT.


ARTICLE 2. CRIMES AGAINST THE PERSON.


§61-2-8. Abortion; penalty.

Any person who shall administer to, or cause to be taken by, a woman, any drug or other thing, or use any means, with intent to destroy her unborn child, or to produce abortion or miscarriage, and shall thereby destroy such child, or produce such abortion or miscarriage, shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than three nor more than ten years; and if such woman die by reason of such abortion performed upon her, such person shall be guilty of murder. No person, by reason of any act mentioned in this section, shall be punishable where such act is done in good faith, with the intention of saving the life of such woman or child.


(a) A person who performs an abortion or attempts to perform or induces an abortion in violation of this §16-2R-1 et seq. is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than 3 years and not more than 10 years.

(b) If a woman dies during the performance of an abortion; the attempt of an abortion; or the inducement of an abortion, the person doing such is subject to the provisions of §61-2-3, unless the abortion is permitted under §16-2R-3.

(c) This section may not be construed to subject a mother to a criminal penalty for any violation of this section.

(d) This section is effective 90 days from passage.


 

NOTE: The purpose of this bill is to clarify West Virginia’s abortion laws.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

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