Senate Bill No. 618
(By Senator Foster)
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[Introduced February 19, 2010; referred to the Committee on
Health and Human Resources; and then to the Committee on
Government Organization.]
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A BILL to amend and reenact §30-14A-1, §30-14A-2, §30-14A-3,
§30-14A-4 and §30-14A-5 of the Code of West Virginia, 1931, as
amended, all relating to osteopathic physician assistants
generally; reorganizing definitions; adopting consistent use
of the term "license" in lieu of "certificate"; modifying the
preconditions for authorization to prescribe drugs; modifying
the classes of pharmaceuticals that may be prescribed by an
osteopathic physician assistant; changing the amount of
certain drugs that may be prescribed; and providing for fees
to be set by legislative rule.
Be it enacted by the Legislature of West Virginia:
That §30-14A-1, §30-14A-2, §30-14A-3, §30-14A-4 and §30-14A-5
of the Code of West Virginia, 1931, as amended, be amended and
reenacted, all to read as follows:
ARTICLE 14A. ASSISTANTS TO OSTEOPATHIC PHYSICIANS AND SURGEONS.
§30-14A-1. Osteopathic physician assistant to osteopathic
physicians and surgeons; definitions; board of
osteopathy rules;
licensure; temporary licensure;
renewal of license; job description required;
revocation or suspension of license;
responsibilities of the supervising physician;
legal responsibility for osteopathic physician
assistants; reporting of disciplinary procedures;
identification; limitation on employment and
duties; fees; unlawful use of the title of
"osteopathic physician assistant"; unlawful
representation of an osteopathic physician
assistant as a physician; criminal penalties.
(a) As used in this section:
(1) "Osteopathic physician assistant" means an assistant to an
osteopathic physician who is a graduate of an approved program of
instruction in primary care or surgery, has passed the national
certification examination and is qualified to perform direct
patient care services under the supervision of an osteopathic
physician;
(2) "Supervising physician" means a doctor of osteopathy
permanently licensed in this state who assumes legal and supervising responsibility for the work or training of any
osteopathic physician assistant under his or her supervision;
(3)
(1)
"Approved program" means an educational program for
osteopathic physician assistants approved and accredited by the
committee on allied health education and accreditation or its
successor;
(4) "Health care facility" means any licensed hospital,
nursing home, extended care facility, state health or mental
institution, clinic or physician's office; and
(5)
(2)
"Direct supervision" means the presence of the
supervising physician at the site where the osteopathic physician
assistant performs medical duties;
(3) "Health care facility" means any licensed hospital,
nursing home, extended care facility, state health or mental
institution, clinic or physician's office;
(4) "Osteopathic physician assistant" means an assistant to an
osteopathic physician who is a graduate of an approved program of
instruction in primary care or surgery, has passed the national
certification examination and is qualified to perform direct
patient care services under the supervision of an osteopathic
physician; and
(5) "Supervising physician" means a doctor of osteopathy
permanently licensed in this state who assumes legal and supervising responsibility for the work or training of any
osteopathic physician assistant under his or her supervision.
(b) The board shall promulgate propose for approval
legislative and emergency rules governing the extent to which
osteopathic physician assistants may function in this state. Such
The rules shall provide that the osteopathic 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 an osteopathic physician permanently licensed in this
state, but such supervision and control does not require the
personal presence of the supervising physician at the place or
places where services are rendered if the osteopathic physician
assistant's normal place of employment is on the premises of the
supervising physician. The supervising physician may send the
osteopathic physician assistant off the premises to perform duties
under his or her direction, but a separate place of work for the
osteopathic physician assistant shall may not be established. In
promulgating such the rules, the board may allow the osteopathic
physician assistant to perform those procedures and examinations
and in the case of authorized osteopathic physician assistants to
prescribe at the direction of his or her supervising physician in
accordance with subsection (o) of this section those categories of
drugs submitted to it in the job description required by subsection
(e) of this section. The board shall compile and publish an annual report that includes a list of currently
certified
licensed
osteopathic physician assistants and their employers and location
in the state.
(c) The board shall
certify
license
as an osteopathic
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) He or she is a graduate of an approved program of
instruction in primary health care or surgery;
(2) He or she has passed the examination for a primary care
physician assistant or surgery administered by the national board
of medical examiners on behalf of the national commission on
certification of physician assistants; and
(3) He or she is of good moral character.
(d) When any graduate of an approved program submits an
application to the board, accompanied by a job description in
conformity with subsection (e) of this section, for an osteopathic
physician assistant
certificate
license,
the board may issue to
such the applicant a temporary
certificate
license
allowing such
the applicant to function as an osteopathic physician assistant for
the period of one year. Said The temporary
certificate
license
may be renewed for one additional year upon the request of the
supervising physician. An osteopathic physician assistant who has
not been certified as such 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.
(e) Any osteopathic physician applying to the board to
supervise an osteopathic physician assistant shall provide a job
description that sets forth the range of medical services to be
provided by such the assistant. Before an osteopathic physician
assistant can be employed or otherwise use his or her skills, the
supervising physician must obtain approval of the job description
from the board. The board may revoke or suspend any
certification
license
of an assistant to a physician for cause, after giving such
person an opportunity to be heard in the manner provided by
sections eight and nine, article one of this chapter.
(f) The supervising physician is responsible for observing,
directing and evaluating the work records and practices of each
osteopathic 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 an
osteopathic physician assistant within ten days of his or her
termination. The legal responsibility for any osteopathic
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 an osteopathic
physician assistant unless the osteopathic physician assistant is
an employee of the facility.
(g) The acts or omissions of an osteopathic physician
assistant employed by health care facilities providing inpatient
services shall be is the legal responsibility of said the
facilities. Osteopathic physician assistants employed by such
facilities in staff positions shall be supervised by a permanently
licensed physician.
(h) 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 osteopathic 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 such action. The health
care facility shall also report any other formal disciplinary
action taken against any osteopathic 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.
(i) When functioning as an osteopathic physician assistant,
the osteopathic physician assistant shall wear a name tag that
identifies him or her as a physician assistant.
(j) (1) A supervising physician shall not supervise at any
time more than three osteopathic physician assistants, except that
a physician may supervise up to four hospital-employed osteopathic
physician assistants: Provided, That an alternative supervisor has
been designated for each.
(2) An osteopathic physician assistant shall not perform any
service that his or her supervising physician is not qualified to
perform.
(3) An osteopathic physician assistant shall 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.
(4) The provisions of this section do not authorize an
osteopathic physician assistant to perform any specific function or
duty delegated by this code to those persons licensed as
chiropractors, dentists, registered nurses, licensed practical
nurses, dental hygienists, optometrists or pharmacists or certified
as nurse anesthetists.
(k)
Each job description submitted by a licensed osteopathic
supervising physician shall be accompanied by a fee of one hundred
dollars. A fee of fifty dollars shall be charged for the annual
renewal of the certificate. A fee of twenty-five dollars shall be
charged for any change of supervising physician.
An application for
license or renewal of license shall be accompanied by payment of an
application fee established by legislative rule of the Board of
Osteopathy.
(l)
As a condition of renewal of osteopathic physician
assistant
certification
license,
each osteopathic physician
assistant shall provide written documentation satisfactory to the
board of participation in and successful completion of continuing
education in courses approved by the board of osteopathy for the
purposes of continuing education of osteopathic physician
assistants. The osteopathy board shall promulgate legislative rules
for minimum continuing hours necessary for
certification
renewal
of
license.
These rules shall provide for minimum hours equal to or
more than the hours necessary for national certification.
Notwithstanding any provision of this chapter to the contrary,
failure to timely submit such the required written documentation
shall result in the automatic suspension of any
certification
license
as an osteopathic physician assistant until such time as the
written documentation is submitted to and approved by the board.
(m)
It is unlawful for any person who is not
certified
licensed
by the board as an osteopathic physician assistant to use the title
of "osteopathic physician assistant" or to represent to any other
person that he or she is an osteopathic physician assistant. Any
person who violates the provisions of this subsection is guilty of
a misdemeanor and, upon conviction thereof, shall be fined not more
than $2,000.
(n) It is unlawful for any osteopathic physician assistant to
represent to any person that he or she is a physician. Any person
who violates the provisions of this subsection is guilty of a
felony, and, upon conviction thereof, shall be imprisoned in the
penitentiary a state correctional facility for not less than one,
nor more than two years, or be fined not more than $2,000, or both
fined and imprisoned.
(o)
An osteopathic physician assistant providing primary care
outpatient services
in a medically underserved area or other area of
need, both as defined by the board,
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 and regulations
governing the eligibility and extent to which such an osteopathic
physician assistant may prescribe at the direction of the
supervising physician. The regulations shall provide for a state
formulary classifying pharmacologic categories of drugs which may be prescribed by such an osteopathic physician assistant. In
classifying such pharmacologic categories, those categories of drugs
which shall be excluded shall include, but not be limited to,
Schedules I and II of the uniform controlled substances act,
anticoagulants, antineoplastics,
antipsychotics
,
radiopharmaceuticals, general anesthetics and radiographic contrast
materials. Drugs listed under Schedule III shall be are limited to
a
forty-eight seventy-two hour supply without refill. The
regulations shall provide that all pharmacological categories of
drugs to be prescribed by an osteopathic physician assistant shall
be listed in each job description submitted to the board as required
in subsection (e) of this section. The regulations shall provide
the maximum dosage an osteopathic physician assistant may prescribe.
The regulations shall also provide that to be eligible for such
prescription privileges, an osteopathic physician assistant must
submit an application to the board for such privileges. The
regulations shall also provide that an osteopathic physician
assistant shall have performed patient care services for a minimum
of two years immediately preceding the submission to the board of
said application for prescription privileges and shall have
successfully completed an accredited course of instruction in
clinical pharmacology approved by the board. The regulations shall
also provide that to maintain prescription privileges, an osteopathic
physician assistant shall continue to maintain national certification as an osteopathic physician assistant, and in meeting such 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 may be construed to permit
an osteopathic physician assistant to independently prescribe or
dispense drugs.
§30-14A-2. Approval and
certification licensure by board of
osteopathy.
Approval of a job description and establishment of qualifications
for employment as an assistant to an osteopathic physician and surgeon
must be obtained from the Board of Osteopathy. The Board of
Osteopathy shall certify license each qualified applicant for
employment as an assistant to an osteopathic physician and surgeon
upon submission of a job description, and shall provide for biennial
renewal of certification license. The board shall have has the power
to revoke or suspend any certification license of an assistant to an
osteopathic physician and surgeon, for cause, after having given the
person an opportunity to be heard in the manner provided by sections
eight and nine, article one of this chapter.
§30-14A-3. Fees.
Each job description submitted by a permanently licensed
osteopathic physician and surgeon shall be accompanied by a fee of
fifty dollars. A fee of twenty-five dollars shall be charged for each
biennial renewal of Certification. The Board of Osteopathy may charge reasonable fees, to be established by legislative rule, for processing
an application for license, renewal of license, request to change
supervising physician and modification of the job description of an
osteopathic physician assistant.
§30-14A-4. Limitation on scope of duties.
Assistants to osteopathic physicians and surgeons shall may not
sign prescriptions or perform any service which his or her employing
osteopathic physician and surgeon is not qualified to perform.
§30-14A-5. Special volunteer osteopathic physician assistant
certification license; civil immunity for voluntary services
rendered to indigents.
(a) There is established a special volunteer osteopathic
physician assistant certificate license for osteopathic physician
assistants retired or retiring from the active practice of osteopathy
who wish to donate their expertise for the medical care and treatment
of indigent and needy patients in the clinic setting of clinics
organized, in whole or in part, for the delivery of health care
services without charge. The special volunteer osteopathic physician
assistant certificate license shall be issued by the West Virginia
Board of Osteopathy to osteopathic physician assistants certified
licensed or otherwise eligible for certification licensure under this
article and the legislative rules promulgated hereunder without the
payment of an application fee, license fee or renewal fee, shall be
issued for and the remainder of the licensing period and renewed consistent with the boards other licensing requirements. The board
shall develop application forms for the special certificate license
provided in this subsection which shall contain the osteopathic
physician assistant's acknowledgment that:
(1) The osteopathic physician assistant's practice under the
special volunteer osteopathic physician assistant certificate license
will be exclusively devoted to providing osteopathic care to needy and
indigent persons in West Virginia;
(2) The osteopathic physician assistant will not receive any
payment or compensation, either direct or indirect, or have the
expectation of any payment or compensation, for any osteopathic
services rendered under the special volunteer osteopathic physician
assistant certificate license;
(3) The osteopathic physician assistant will supply any
supporting documentation that the board may reasonably require; and
(4) The osteopathic physician assistant agrees to continue to
participate in continuing education as required by the board for a
special volunteer osteopathic physician assistant license.
(b) Any osteopathic physician assistant who renders any
osteopathic service to indigent and needy patients of a clinic
organized, in whole or in part, for the delivery of health care
services without charge under a special volunteer osteopathic
physician assistant certificate license authorized under subsection
(a) of this section without payment or compensation or the expectation or promise of payment or compensation, is immune from liability for
any civil action arising out of any act or omission resulting from the
rendering of the osteopathic service at the clinic unless the act or
omission was the result of the osteopathic physician assistant's gross
negligence or willful misconduct. In order for the immunity under
this subsection to apply, there must be a written agreement between
the osteopathic physician assistant and the clinic pursuant to which
the osteopathic physician assistant will provide voluntary
uncompensated medical services under the control of the clinic to
patients of the clinic before the rendering of any services by the
osteopathic physician assistant at the clinic: Provided, That any
clinic entering into such written agreement is required to maintain
liability coverage of not less than $1 million per occurrence.
(c) Notwithstanding the provisions of subsection (b) of this
section, a clinic organized, in whole or in part, for the delivery of
health care services without charge is not relieved from imputed
liability for the negligent acts of an osteopathic physician assistant
rendering voluntary medical services at or for the clinic under a
special volunteer osteopathic physician assistant certificate license
authorized under subsection (a) of this section.
(d) For purposes of this section, "otherwise eligible for
certification licensure" means the satisfaction of all the
requirements for certification licensure as listed in section one of
this article and in the legislative rules promulgated thereunder. The term does not include the fee requirement of section three of this
article or of legislative rules promulgated by the board relating to
fees.
(e) Nothing in this section may be construed as requiring the
board to issue a special volunteer osteopathic physician assistant
certificate license to any osteopathic physician assistant whose
certificate or license is or has been subject to any disciplinary
action or to any osteopathic physician assistant who has surrendered
an osteopathic a physician assistant certificate, license, or other
authorization to practice or caused such certificate, license, or
other authorization to practice to lapse, expire and become invalid
in lieu of having a complaint initiated or other action taken against
his or her certificate, or who has elected to place an osteopathic
physician assistant certificate authorization to practice in inactive
status in lieu of having a complaint initiated or other action taken
against his or her certificate, certificate, license, or other
authorization to practice or who has been denied authorization to
practice as an osteopathic physician assistant certificate in any
jurisdiction.
(f) Any policy or contract of liability insurance providing
coverage for liability sold, issued or delivered in this state to any
osteopathic physician assistant covered under the provisions of this
article, shall be read so as to contain a provision or endorsement
whereby the company issuing such policy waives or agrees not to assert as a defense on behalf of the policyholder or any beneficiary thereof,
to any claim covered by the terms of such policy within the policy
limits, the immunity from liability of the insured by reason of the
care and treatment of needy and indigent patients by an osteopathic
physician assistant who holds a special volunteer osteopathic
physician assistant certificate license.
NOTE: The purpose of this bill is to amend the requirements for
licensing of osteopathic physician assistants and the conditions under
which osteopathic physician assistant may prescribe drugs, to parallel
the requirements and conditions for physician assistants who are
supervised by medical doctors.
Strike-throughs indicate language that would be stricken from the
present law, and underscoring indicates new language that would be
added.