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ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 243
(Senators Wooton, Bowman and Rowe, original sponsors)
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[Passed February 27, 2002; in effect ninety days from passage.]
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AN ACT to amend and reenact section fourteen, article three,
chapter thirty of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend article three-c
of said chapter by adding thereto a new section, designated
section four, all relating to the professional discipline of
physicians and podiatrists; requiring hospitals to report
certain information to the board of medicine regarding
disciplinary actions and related legal actions against
physicians or podiatrists; requiring managed care
organizations to report certain information to the board of
medicine regarding physicians or podiatrists; defining
"managed care organization"; including state board of risk and
insurance management among entities which must report on
certain legal actions to the board of medicine; requiring
clerks of courts to forward certain court orders to the board
of medicine; updating terminology and making certain technical
revisions; authorizing board of medicine to revoke licenses for period not to exceed ten years; prohibiting physicians or
podiatrists from practicing medicine, surgery or podiatry or
to otherwise deliver health care services when license is
temporarily suspended; eliminating ability of physician or
podiatrist whose license is revoked because of a felony drug
conviction from reapplying for licensure after five years; and
authorizing defendants who prevail in civil actions filed as
a result of peer review to recover attorney fees and court
costs in certain circumstances.
Be it enacted by the Legislature of West Virginia:
That section fourteen, article three, chapter thirty of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that article three-c of said
chapter be amended by adding thereto a new section, designated
section four, all to read as follows:
ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-14. Professional discipline of physicians and podiatrists;
reporting of information to board pertaining to medical
professional liability and professional incompetence required;
penalties; grounds for license denial and discipline of
physicians and podiatrists; investigations; physical and
mental examinations; hearings; sanctions; summary sanctions;
reporting by the board; reapplication; civil and criminal
immunity; voluntary limitation of license; probable cause
determinations.
(a) The board may independently initiate disciplinary
proceedings as well as initiate disciplinary proceedings based on
information received from medical peer review committees,
physicians, podiatrists, hospital administrators, professional
societies and others.
The board may initiate investigations as to professional
incompetence or other reasons for which a licensed physician or
podiatrist may be adjudged unqualified based upon criminal
convictions; complaints by citizens, pharmacists, physicians,
podiatrists, peer review committees, hospital administrators,
professional societies or others; or if there are five judgments or
settlements within the most recent five-year period in excess of
fifty thousand dollars each. The board may not consider any
judgments or settlements as conclusive evidence of professional
incompetence or conclusive lack of qualification to practice.
(b) Upon request of the board, any medical peer review
committee in this state shall report any information that may
relate to the practice or performance of any physician or
podiatrist known to that medical peer review committee. Copies of
the requests for information from a medical peer review committee
may be provided to the subject physician or podiatrist if, in the
discretion of the board, the provision of such copies will not
jeopardize the board's investigation. In the event that copies are
so provided, the subject physician or podiatrist is allowed fifteen
days to comment on the requested information and such comments must
be considered by the board.
The chief executive officer of every hospital shall, within
sixty days after the completion of the hospital's formal
disciplinary procedure and also after the commencement of and again
after the conclusion of any resulting legal action, report in
writing to the board the name of any member of the medical staff or
any other physician or podiatrist practicing in the hospital whose
hospital privileges have been revoked, restricted, reduced or
terminated for any cause, including resignation, together with all
pertinent information relating to such action. The chief executive
officer shall also report any other formal disciplinary action
taken against any physician or podiatrist by the hospital upon the
recommendation of its medical staff relating to professional
ethics, medical incompetence, medical professional liability, 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. Voluntary
cessation of hospital privileges for reasons unrelated to
professional competence or ethics need not be reported.
Any managed care organization operating in this state which
provides a formal peer review process shall report in writing to
the board, within sixty days after the completion of any formal
peer review process and also within sixty days after the
commencement of and again after the conclusion of any resulting
legal action, the name of any physician or podiatrist whose
credentialing has been revoked or not renewed by the managed care
organization. The managed care organization shall also report in writing to the board any other disciplinary action taken against a
physician or podiatrist relating to professional ethics,
professional liability, moral turpitude or drug or alcohol abuse
within sixty days after completion of a formal peer review process
which results in the action taken by the managed care organization.
For purposes of this subsection, "managed care organization" means
a plan that establishes, operates or maintains a network of health
care providers who have entered into agreements with and been
credentialed by the plan to provide health care services to
enrollees or insureds to whom the plan has the ultimate obligation
to arrange for the provision of or payment for health care services
through organizational arrangements for ongoing quality assurance,
utilization review programs or dispute resolutions.
Any professional society in this state comprised primarily of
physicians or podiatrists which takes formal disciplinary action
against a member relating to professional ethics, professional
incompetence, medical
professional liability, moral turpitude or drug or alcohol abuse,
shall report in writing to the board within sixty days of a final
decision the name of the member, together with all pertinent
information relating to the action.
Every person, partnership, corporation, association, insurance
company, professional society or other organization providing
professional liability insurance to a physician or podiatrist in
this state, including the state board of risk and insurance
management, shall submit to the board the following information within thirty days from any judgment or settlement of a civil or
medical professional liability action excepting product liability
actions: The date of any judgment or settlement; whether any
appeal has been taken on the judgment and, if so, by which party;
the amount of any settlement or judgment against the insured; and
other information as the board may require.
Within thirty days from the entry of an order by a court in a
medical professional liability action or other civil action wherein
a physician or podiatrist licensed by the board is determined to
have rendered health care services below the applicable standard of
care, the clerk of the court in which the order was entered shall
forward a certified copy of the order to the board.
Within thirty days after a person known to be a physician or
podiatrist licensed or otherwise lawfully practicing medicine and
surgery or podiatry in this state or applying to be so licensed is
convicted of a felony under the laws of this state or of any crime
under the laws of this state involving alcohol or drugs in any way,
including any controlled substance under state or federal law, the
clerk of the court of record in which the conviction was entered
shall forward to the board a certified true and correct abstract of
record of the convicting court. The abstract shall include the
name and address of the physician or podiatrist or applicant, the
nature of the offense committed and the final judgment and sentence
of the court.
Upon a determination of the board that there is probable cause
to believe that any person, partnership, corporation, association, insurance company, professional society or other organization has
failed or refused to make a report required by this subsection, the
board shall provide written notice to the alleged violator stating
the nature of the alleged violation and the time and place at which
the alleged violator shall appear to show good cause why a civil
penalty should not be imposed. The hearing shall be conducted in
accordance with the provisions of article five, chapter
twenty-nine-a of this code. After reviewing the record of the
hearing, if the board determines that a violation of this
subsection has occurred, the board shall assess a civil penalty of
not less than one thousand dollars nor more than ten thousand
dollars against the violator. Anyone so assessed shall be notified
of the assessment in writing and the notice shall specify the
reasons for the assessment. If the violator fails to pay the
amount of the assessment to the board within thirty days, the
attorney general may institute a civil action in the circuit court
of Kanawha County to recover the amount of the assessment. In any
such civil action, the court's review of the board's action shall
be conducted in accordance with the provisions of section four,
article five, chapter twenty-nine-a of this code. Notwithstanding
any other provision of this article to the contrary, when there are
conflicting views by recognized experts as to whether any alleged
conduct breaches an applicable standard of care, the evidence must
be clear and convincing before the board may find that the
physician has demonstrated a lack of professional competence to
practice with a reasonable degree of skill and safety for patients.
Any person may report to the board relevant facts about the
conduct of any physician or podiatrist in this state which in the
opinion of that person amounts to medical professional liability or
professional incompetence.
The board shall provide forms for filing reports pursuant to
this section. Reports submitted in other forms shall be accepted
by the board.
The filing of a report with the board pursuant to any
provision of this article, any investigation by the board or any
disposition of a case by the board does not preclude any action by
a hospital, other health care facility or professional society
comprised primarily of physicians or podiatrists to suspend,
restrict or revoke the privileges or membership of the physician or
podiatrist.
(c) The board may deny an application for license or other
authorization to practice medicine and surgery or podiatry in this
state and may discipline a physician or podiatrist licensed or
otherwise lawfully practicing in this state who, after a hearing,
has been adjudged by the board as unqualified due to any of the
following reasons:
(1) Attempting to obtain, obtaining, renewing or attempting to
renew a license to practice medicine and surgery or podiatry by
bribery, fraudulent misrepresentation or through known error of the
board;
(2) Being found guilty of a crime in any jurisdiction, which
offense is a felony, involves moral turpitude or directly relates to the practice of medicine. Any plea of nolo contendere is a
conviction for the purposes of this subdivision;
(3) False or deceptive advertising;
(4) Aiding, assisting, procuring or advising any unauthorized
person to practice medicine and surgery or podiatry contrary to
law;
(5) Making or filing a report that the person knows to be
false; intentionally or negligently failing to file a report or
record required by state or federal law; willfully impeding or
obstructing the filing of a report or record required by state or
federal law; or inducing another person to do any of the foregoing.
The reports and records as are herein covered mean only those that
are signed in the capacity as a licensed physician or podiatrist;
(6) Requesting, receiving or paying directly or indirectly a
payment, rebate, refund, commission, credit or other form of profit
or valuable consideration for the referral of patients to any
person or entity in connection with providing medical or other
health care services or clinical laboratory services, supplies of
any kind, drugs, medication or any other medical goods, services or
devices used in connection with medical or other health care
services;
(7) Unprofessional conduct by any physician or podiatrist in
referring a patient to any clinical laboratory or pharmacy in which
the physician or podiatrist has a proprietary interest unless the
physician or podiatrist discloses in writing such interest to the
patient. The written disclosure shall indicate that the patient may choose any clinical laboratory for purposes of having any
laboratory work or assignment performed or any pharmacy for
purposes of purchasing any prescribed drug or any other medical
goods or devices used in connection with medical or other health
care services;
As used herein, "proprietary interest" does not include an
ownership interest in a building in which space is leased to a
clinical laboratory or pharmacy at the prevailing rate under a
lease arrangement that is not conditional upon the income or gross
receipts of the clinical laboratory or pharmacy;
(8) Exercising influence within a patient-physician
relationship for the purpose of engaging a patient in sexual
activity;
(9) Making a deceptive, untrue or fraudulent representation in
the practice of medicine and surgery or podiatry;
(10) Soliciting patients, either personally or by an agent,
through the use of fraud, intimidation or undue influence;
(11) Failing to keep written records justifying the course of
treatment of a patient, the records to include, but not be limited
to, patient histories, examination and test results and treatment
rendered, if any;
(12) Exercising influence on a patient in such a way as to
exploit the patient for financial gain of the physician or
podiatrist or of a third party. Any influence includes, but is not
limited to, the promotion or sale of services, goods, appliances or
drugs;
(13) Prescribing, dispensing, administering, mixing or
otherwise preparing a prescription drug, including any controlled
substance under state or federal law, other than in good faith and
in a therapeutic manner in accordance with accepted medical
standards and in the course of the physician's or podiatrist's
professional practice: Provided, That a physician who discharges
his or her professional obligation to relieve the pain and
suffering and promote the dignity and autonomy of dying patients in
his or her care and, in so doing, exceeds the average dosage of a
pain relieving controlled substance, in Schedule II and III of the
Uniform Control Substance Act, does not violate this article;
(14) Performing any procedure or prescribing any therapy that,
by the accepted standards of medical practice in the community,
would constitute experimentation on human subjects without first
obtaining full, informed and written consent;
(15) Practicing or offering to practice beyond the scope
permitted by law or accepting and performing professional
responsibilities that the person knows or has reason to know he or
she is not competent to perform;
(16) Delegating professional responsibilities to a person when
the physician or podiatrist delegating the responsibilities knows
or has reason to know that the person is not qualified by training,
experience or licensure to perform them;
(17) Violating any provision of this article or a rule or
order of the board or failing to comply with a subpoena or subpoena
duces tecum issued by the board;
(18) Conspiring with any other person to commit an act or
committing an act that would tend to coerce, intimidate or preclude
another physician or podiatrist from lawfully advertising his or
her services;
(19) Gross negligence in the use and control of prescription
forms;
(20) Professional incompetence; or
(21) The inability to practice medicine and surgery or
podiatry with reasonable skill and safety due to physical or mental
impairment, including deterioration through the aging process or
loss of motor skill or abuse of drugs or alcohol. A physician or
podiatrist adversely affected under this subdivision shall be
afforded an opportunity at reasonable intervals to demonstrate that
he or she may resume the competent practice of medicine and surgery
or podiatry with reasonable skill and safety to patients. In any
proceeding under this subdivision, neither the record of
proceedings nor any orders entered by the board shall be used
against the physician or podiatrist in any other proceeding.
(d) The board shall deny any application for a license or
other authorization to practice medicine and surgery or podiatry in
this state to any applicant who, and shall revoke the license of
any physician or podiatrist licensed or otherwise lawfully
practicing within this state who, is found guilty by any court of
competent jurisdiction of any felony involving prescribing,
selling, administering, dispensing, mixing or otherwise preparing
any prescription drug, including any controlled substance under state or federal law, for other than generally accepted therapeutic
purposes. Presentation to the board of a certified copy of the
guilty verdict or plea rendered in the court is sufficient proof
thereof for the purposes of this article. A plea of nolo
contendere has the same effect as a verdict or plea of guilt.
(e) The board may refer any cases coming to its attention to
an appropriate committee of an appropriate professional
organization for investigation and report. Except for complaints
related to obtaining initial licensure to practice medicine and
surgery or podiatry in this state by bribery or fraudulent
misrepresentation, any complaint filed more than two years after
the complainant knew, or in the exercise of reasonable diligence
should have known, of the existence of grounds for the complaint,
shall be dismissed: Provided, That in cases of conduct alleged to
be part of a pattern of similar misconduct or professional
incapacity that, if continued, would pose risks of a serious or
substantial nature to the physician or podiatrist's current
patients, the investigating body may conduct a limited
investigation related to the physician or podiatrist's current
capacity and qualification to practice and may recommend
conditions, restrictions or limitations on the physician or
podiatrist's license to practice that it considers necessary for
the protection of the public. Any report shall contain
recommendations for any necessary disciplinary measures and shall
be filed with the board within ninety days of any referral. The
recommendations shall be considered by the board and the case may be further investigated by the board. The board after full
investigation shall take whatever action it deems appropriate, as
provided herein.
(f) The investigating body, as provided for in subsection (e)
of this section, may request and the board under any circumstances
may require a physician or podiatrist or person applying for
licensure or other authorization to practice medicine and surgery
or podiatry in this state to submit to a physical or mental
examination by a physician or physicians approved by the board. A
physician or podiatrist submitting to any such examination has the
right, at his or her expense, to designate another physician to be
present at the examination and make an independent report to the
investigating body or the board. The expense of the examination
shall be paid by the board. Any individual who applies for or
accepts the privilege of practicing medicine and surgery or
podiatry in this state is considered to have given his or her
consent to submit to all examinations when requested to do so in
writing by the board and to have waived all objections to the
admissibility of the testimony or examination report of any
examining physician on the ground that the testimony or report is
privileged communication. If a person fails or refuses to submit
to any such examination under circumstances which the board finds
are not beyond his or her control, failure or refusal is prima
facie evidence of his or her inability to practice medicine and
surgery or podiatry competently and in compliance with the
standards of acceptable and prevailing medical practice.
(g) In addition to any other investigators it employs, the
board may appoint one or more licensed physicians to act for it in
investigating the conduct or competence of a physician.
(h) In every disciplinary or licensure denial action, the
board shall furnish the physician or podiatrist or applicant with
written notice setting out with particularity the reasons for its
action. Disciplinary and licensure denial hearings shall be
conducted in accordance with the provisions of article five,
chapter twenty-nine-a of this code. However, hearings shall be
heard upon sworn testimony and the rules of evidence for trial
courts of record in this state shall apply to all hearings. A
transcript of all hearings under this section shall be made, and
the respondent may obtain a copy of the transcript at his or her
expense. The physician or podiatrist has the right to defend
against any charge by the introduction of evidence, the right to be
represented by counsel, the right to present and cross-examine
witnesses and the right to have subpoenas and subpoenas duces tecum
issued on his or her behalf for the attendance of witnesses and the
production of documents. The board shall make all its final
actions public. The order shall contain the terms of all action
taken by the board.
(i) In disciplinary actions in which probable cause has been
found by the board, the board shall, within twenty days of the date
of service of the written notice of charges or sixty days prior to
the date of the scheduled hearing, whichever is sooner, provide the
respondent with the complete identity, address and telephone number of any person known to the board with knowledge about the facts of
any of the charges; provide a copy of any statements in the
possession of or under the control of the board; provide a list of
proposed witnesses with addresses and telephone numbers, with a
brief summary of his or her anticipated testimony; provide
disclosure of any trial expert pursuant to the requirements of rule
26(b)(4) of the West Virginia rules of civil procedure; provide
inspection and copying of the results of any reports of physical
and mental examinations or scientific tests or experiments; and
provide a list and copy of any proposed exhibit to be used at the
hearing: Provided, That the board shall not be required to furnish
or produce any materials which contain opinion work product
information or would be a violation of the attorney-client
privilege. Within twenty days of the date of service of the
written notice of charges, the board shall be required to disclose
any exculpatory evidence with a continuing duty to do so throughout
the disciplinary process. Within thirty days of receipt of the
board's mandatory discovery, the respondent shall provide the board
with the complete identity, address and telephone number of any
person known to the respondent with knowledge about the facts of
any of the charges; provide a list of proposed witnesses with
addresses and telephone numbers, to be called at hearing, with a
brief summary of his or her anticipated testimony; provide
disclosure of any trial expert pursuant to the requirements of rule
26(b)(4) of the West Virginia rules of civil procedure; provide
inspection and copying of the results of any reports of physical and mental examinations or scientific tests or experiments; and
provide a list and copy of any proposed exhibit to be used at the
hearing.
(j) Whenever it finds any person unqualified because of any of
the grounds set forth in subsection (c) of this section, the board
may enter an order imposing one or more of the following:
(1) Deny his or her application for a license or other
authorization to practice medicine and surgery or podiatry;
(2) Administer a public reprimand;
(3) Suspend, limit or restrict his or her license or other
authorization to practice medicine and surgery or podiatry for not
more than five years, including limiting the practice of that
person to, or by the exclusion of, one or more areas of practice,
including limitations on practice privileges;
(4) Revoke his or her license or other authorization to
practice medicine and surgery or podiatry or to prescribe or
dispense controlled substances for a period not to exceed ten
years;
(5) Require him or her to submit to care, counseling or
treatment designated by the board as a condition for initial or
continued licensure or renewal of licensure or other authorization
to practice medicine and surgery or podiatry;
(6) Require him or her to participate in a program of
education prescribed by the board;
(7) Require him or her to practice under the direction of a
physician or podiatrist designated by the board for a specified period of time; and
(8) Assess a civil fine of not less than one thousand dollars
nor more than ten thousand dollars.
(k) Notwithstanding the provisions of section eight, article
one, chapter thirty of this code, if the board determines the
evidence in its possession indicates that a physician's or
podiatrist's continuation in practice or unrestricted practice
constitutes an immediate danger to the public, the board may take
any of the actions provided for in subsection (j) of this section
on a temporary basis and without a hearing if institution of
proceedings for a hearing before the board are initiated
simultaneously with the temporary action and begin within fifteen
days of the action. The board shall render its decision within
five days of the conclusion of a hearing under this subsection.
(l) Any person against whom disciplinary action is taken
pursuant to the provisions of this article has the right to
judicial review as provided in articles five and six, chapter
twenty-nine-a of this code: Provided, That a circuit judge may
also remand the matter to the board if it appears from competent
evidence presented to it in support of a motion for remand that
there is newly discovered evidence of such a character as ought to
produce an opposite result at a second hearing on the merits before
the board and:
(1) The evidence appears to have been discovered since the
board hearing; and
(2) The physician or podiatrist exercised due diligence in asserting his or her evidence and that due diligence would not have
secured the newly discovered evidence prior to the appeal. A
person may not practice medicine and surgery or podiatry or deliver
health care services in violation of any disciplinary order
revoking, suspending or limiting his or her license while any
appeal is pending. Within sixty days, the board shall report its
final action regarding restriction, limitation, suspension or
revocation of the license of a physician or podiatrist, limitation
on practice privileges or other disciplinary action against any
physician or podiatrist to all appropriate state agencies,
appropriate licensed health facilities and hospitals, insurance
companies or associations writing medical malpractice insurance in
this state, the American medical association, the American podiatry
association, professional societies of physicians or podiatrists in
the state and any entity responsible for the fiscal administration
of medicare and medicaid.
(m) Any person against whom disciplinary action has been taken
under the provisions of this article shall, at reasonable
intervals, be afforded an opportunity to demonstrate that he or she
can resume the practice of medicine and surgery or podiatry on a
general or limited basis. At the conclusion of a suspension,
limitation or restriction period the physician or podiatrist may
resume practice if the board has so ordered.
(n) Any entity, organization or person, including the board,
any member of the board, its agents or employees and any entity or
organization or its members referred to in this article, any insurer, its agents or employees, a medical peer review committee
and a hospital governing board, its members or any committee
appointed by it acting without malice and without gross negligence
in making any report or other information available to the board or
a medical peer review committee pursuant to law and any person
acting without malice and without gross negligence who assists in
the organization, investigation or preparation of any such report
or information or assists the board or a hospital governing body or
any committee in carrying out any of its duties or functions
provided by law is immune from civil or criminal liability, except
that the unlawful disclosure of confidential information possessed
by the board is a misdemeanor as provided for in this article.
(o) A physician or podiatrist may request in writing to the
board a limitation on or the surrendering of his or her license to
practice medicine and surgery or podiatry or other appropriate
sanction as provided herein. The board may grant the request and,
if it considers it appropriate, may waive the commencement or
continuation of other proceedings under this section. A physician
or podiatrist whose license is limited or surrendered or against
whom other action is taken under this subsection may, at reasonable
intervals, petition for removal of any restriction or limitation on
or for reinstatement of his or her license to practice medicine and
surgery or podiatry.
(p) In every case considered by the board under this article
regarding discipline or licensure, whether initiated by the board
or upon complaint or information from any person or organization, the board shall make a preliminary determination as to whether
probable cause exists to substantiate charges of disqualification
due to any reason set forth in subsection (c) of this section. If
probable cause is found to exist, all proceedings on the charges
shall be open to the public who shall be entitled to all reports,
records and nondeliberative materials introduced at the hearing,
including the record of the final action taken: Provided, That any
medical records, which were introduced at the hearing and which
pertain to a person who has not expressly waived his or her right
to the confidentiality of the records, may not be open to the
public nor is the public entitled to the records.
(q) Notwithstanding any other provisions of this article, the
board may, at any time, on its own motion, or upon motion by the
complainant, or upon motion by the physician or podiatrist, or by
stipulation of the parties, refer the matter to mediation. The
board shall obtain a list from the West Virginia state bar's
mediator referral service of certified mediators with expertise in
professional disciplinary matters. The board and the physician or
podiatrist may choose a mediator from this list. If the board and
the physician or podiatrist are unable to agree on a mediator, the
board shall designate a mediator from this listing by neutral
rotation. The mediation shall not be considered a proceeding open
to the public and any reports and records introduced at the
mediation shall not become part of the public record. The mediator
and all participants in the mediation shall maintain and preserve
the confidentiality of all mediation proceedings and records. The mediator may not be subpoenaed or called to testify or otherwise be
subject to process requiring disclosure of confidential information
in any proceeding relating to or arising out of the disciplinary or
licensure matter mediated: Provided, That any confidentiality
agreement and any written agreement made and signed by the parties
as a result of mediation may be used in any proceedings
subsequently instituted to enforce the written agreement. The
agreements may be used in other proceedings if the parties agree in
writing.
ARTICLE 3C.HEALTH CARE PEER REVIEW ORGANIZATION PROTECTION.
§30-3C-4.Liability for court costs and attorney fees in certain
civil actions.
Any party or parties who institute an action as a result of a
peer review may be liable for court costs and reasonable attorney's
fees, if the defendant substantially prevails and if the action, or
the plaintiff's conduct during the litigation of the action, was
frivolous, unreasonable, without foundation, or in bad faith.