ENROLLED
Senate Bill No. 358
(By Senators Wooton, Anderson, Buckalew, Dittmar,
Miller, Ross, Schoonover, Scott and Yoder)
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[Passed March 9, 1996; in effect ninety days from passage.]
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AN ACT to amend and reenact sections one, three, four-a, five, six,
seven, eight, ten, eleven and twelve, article one, chapter
thirty of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to further amend said article by
adding thereto two new sections, designated sections one-a and
seven-a; and to amend and reenact section five-a, article two
of said chapter, all relating to state boards of examination
or registration; application of article; legislative findings
and declaration; officers; lay members of professional boards;
meetings; quorum; investigatory powers; duties; application
for license or registration; fees; contents of license or
certificate of registration; continuing education; denial,
suspension or revocation of a license or registration;
disposition of money; compensation of members; expenses; record of proceedings; register of applicants; report to
governor and Legislature; and legal corporations.
Be it enacted by the Legislature of West Virginia:
That sections one, three, four-a, five, six, seven, eight,
ten, eleven and twelve, article one, chapter thirty of the code of
West Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted; that said article be further amended by
adding thereto two new sections, designated sections one-a and
seven-a; and that section five-a, article two of said chapter be
amended and reenacted, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS APPLICABLE TO ALL STATE BOARDS OF
EXAMINATION OR REGISTRATION REFERRED TO IN CHAPTER.
§30-1-1. Application of article.
Unless otherwise specifically provided, every board of
examination or registration referred to in this chapter shall
conform to the requirements prescribed in the following sections of
this article.
§30-1-1a. Legislative findings and declaration.
The Legislature hereby finds and declares that as a matter of
public policy the practice of the professions referred to in this
chapter is a privilege and is not a natural right of individuals.
The fundamental purpose of licensure and registration is to protect the public, and any license, registration, certificate or other
authorization to practice issued pursuant to this chapter is a
revocable privilege.
§30-1-3. Officers.
(a) Every board referred to in this chapter shall elect
annually from its members a president and a secretary who shall
hold their offices for one year, but shall continue to hold their
offices until their successors are elected. However, the state
board of law examiners, the state board of examiners for nurses and
the state board of dental examiners may each elect a secretary from
outside their membership.
(b) The officers of the boards referred to in this chapter
shall register annually with the governor, the secretary of
administration, the legislative auditor and the secretary of state.
§30-1-4a. Lay members of professional boards.
(a) Notwithstanding any provisions of this code to the
contrary, the governor shall appoint at least one lay person to
represent the interests of the public on every health professional
licensing board which is referred to in this chapter. If the total
number of members on any of these boards after the appointment of
one lay person is an even number, one additional lay person shall
be appointed. Lay members shall serve in addition to any other members otherwise provided for by law or rule. Lay members shall
be at least eighteen years of age, shall be of good moral
character, and shall be competent to represent and safeguard the
interests of the public. Each lay member is empowered to
participate in and vote on all transactions and business of the
board, committee or group to which he or she is appointed.
(b) Any person whose addition to a board as a lay member under
the provisions of this section results in the addition of an odd
number of lay additions to the board shall serve for a term ending
in an odd-numbered year on the date in that year on which terms of
the professional members expire. Of the members first appointed,
each shall serve for a term ending in the year one thousand nine
hundred seventy-nine, and the successor to each of the first
members shall serve for a term equal in length to the terms of the
other professional members of the board.
(c) Any person whose addition to a board as a lay member under
the provisions of this section results in the addition of an even
number of lay additions to the board shall serve for a term ending
in an even-numbered year on the date in that year on which terms of
the professional members expire. Of the members first appointed,
each shall serve for a term ending in the year one thousand nine
hundred seventy-eight, and the successor to each of the first members shall serve for a term equal in length to the terms of the
other professional members of the board.
§30-1-5. Meetings; quorum; investigatory powers; duties.
(a) Every board referred to in this chapter shall hold at
least one meeting each year, at such time and place as it may
prescribe by rule, for the examination of applicants who desire to
practice their respective professions or occupations in this state
and to transact any other business which may legally come before
it. The board may hold additional meetings as may be necessary,
which shall be called by the secretary at the direction of the
president or upon the written request of any three members. A
majority of the members of the board constitutes a quorum for the
transaction of its business. The board is authorized to compel the
attendance of witnesses, to issue subpoenas, to conduct
investigations and hire an investigator, and to take testimony and
other evidence concerning any matter within its jurisdiction. The
president and secretary of the board are authorized to administer
oaths for these purposes.
(b) Every board referred to in this chapter has a duty to
investigate and resolve complaints which it receives and shall do
so in a timely manner. Every board shall provide public access to
the record of the disposition of the complaints which it receives, in accordance with the provisions of chapter twenty-nine-b of this
code. Every board has a duty to report violations of individual
practice acts contained in this chapter to the board by which the
individual may be licensed, and shall do so in a timely manner upon
receiving notice of such violations. Every person licensed or
registered by a board has a duty to report to the board which
licenses or registers him or her a known or observed violation of
the practice act or the board's rules by any other person licensed
or registered by the same board, and shall do so in a timely
manner. Law-enforcement agencies or their personnel and courts
shall report in a timely manner to the appropriate board any
violations of individual practice acts by any individual.
(c) Whenever a board referred to in this chapter obtains
information that a person subject to its authority has engaged in,
is engaging in, or is about to engage in any act which constitutes
or will constitute a violation of the provisions of this chapter
which are administered and enforced by that board, it may apply to
the circuit court for an order enjoining the act. Upon a showing
that the person has engaged, is engaging, or is about to engage in
any such act, the court shall order an injunction, restraining
order or other order as the court may deem appropriate.
§30-1-6. Application for license or registration; examination fee.
(a) Every applicant for license or registration under the
provisions of this chapter shall apply for such license or
registration in writing to the proper board and shall transmit with
his or her application an examination fee which the board is
authorized to charge for an examination or investigation into the
applicant's qualifications to practice.
(b) Each board referred to in this chapter is authorized to
establish by rule a deadline for application for examination which
shall be no less than ten nor more than ninety days prior to the
date of the examination.
(c) Boards may set by rule fees relating to the licensing or
registering of individuals, which shall be sufficient to enable the
boards to carry out effectively their responsibilities of licensure
or registration and discipline of individuals subject to their
authority:
Provided, That when any board proposes to promulgate a
rule regarding fees for licensing or registration, that board shall
notify its membership of the proposed rule by mailing a copy of the
proposed rule to the membership at the time that the proposed rule
is filed with the secretary of state for publication in the state
register in accordance with section five, article three, chapter
twenty-nine-a of this code.
§30-1-7. Contents of license or certificate of registration.
Every license or certificate of registration issued by each
board shall bear a serial number, the full name of the applicant,
the date of issuance, and the seal of the board. It shall be
signed by the board's president and secretary or executive
secretary. No license or certificate of registration granted or
issued under the provisions of this chapter may be assigned.
§30-1-7a. Continuing education.
Each board referred to in this chapter shall establish
continuing education requirements as a prerequisite to license
renewal. Each board shall develop continuing education criteria
appropriate to its discipline, which shall include, but not be
limited to, course content, course approval, hours required and
reporting periods.
§30-1-8. Denial, suspension or revocation of a license or
registration; probation; proceedings; effect of suspension or
revocation; transcript; report; judicial review.
(a) Every board referred to in this chapter is authorized to
suspend or revoke the license of any person who has been convicted
of a felony or who has been found to have engaged in conduct,
practices or acts constituting professional negligence or a willful
departure from accepted standards of professional conduct. Where
any person has been so convicted of a felony or has been found to have engaged in such conduct, practices or acts, every board
referred to in this chapter is further authorized to enter into
consent decrees, to reprimand, to enter into probation orders, to
levy fines not to exceed one thousand dollars per day per
violation, or any of these, singly or in combination. Each board
is also authorized to assess administrative costs. Any costs which
are assessed shall be placed in the special account of the board,
and any fine which is levied shall be deposited in the state
treasury's general revenue fund. For purposes of this section, the
word "felony" means a felony or crime punishable as a felony under
the laws of this state, any other state, or the United States.
Every board referred to in this chapter is authorized to promulgate
rules in accordance with the provisions of chapter twenty-nine-a of
this code to delineate conduct, practices or acts which, in the
judgment of the board, constitute professional negligence, a
willful departure from accepted standards of professional conduct
or which may render an individual unqualified or unfit for
licensure, registration or other authorization to practice.
(b) Notwithstanding any other provision of law to the
contrary, no certificate, license, registration or authority issued
under the provisions of this chapter may be suspended or revoked
without a prior hearing before the board or court which issued the certificate, license, registration or authority. However, this
does not apply in cases where a board is authorized to suspend or
revoke a certificate, license, registration or authority prior to
a hearing if the individual's continuation in practice constitutes
an immediate danger to the public.
(c) In all proceedings before a board or court for the
suspension or revocation of any certificate, license, registration
or authority issued under the provisions of this chapter, a
statement of the charges against the holder thereof and a notice of
the time and place of hearing shall be served upon the person as a
notice is served under section one, article two, chapter fifty-six
of this code, at least thirty days prior to the hearing, and he or
she may appear with witnesses and be heard in person, by counsel,
or both. The board may take oral or written proof, for or against
the accused, as it may deem advisable. If upon hearing the board
finds that the charges are true, it may suspend or revoke the
certificate, license, registration or authority, and suspension or
revocation shall take from the person all rights and privileges
acquired thereby.
(d) Pursuant to the provisions of section one, article five,
chapter twenty-nine-a of this code, informal disposition may also
be made by the board of any contested case by stipulation, agreed settlement, consent order or default. Further, the board may
suspend its decision and place a licensee found by the board to be
in violation of the applicable practice on probation.
(e) Any person denied a license, certificate, registration or
authority who believes the denial was in violation of this article
or the article under which the license, certificate, registration
or authority is authorized shall be entitled to a hearing on the
action denying the license, certificate, registration or authority.
Hearings under this subsection shall be in accordance with the
provisions for hearings which are set forth in this section.
(f) A stenographic report of each proceeding on the denial,
suspension or revocation of a certificate, license, registration or
authority shall be made at the expense of the board and a
transcript thereof retained in its files. The board shall make a
written report of its findings, which shall constitute part of the
record.
(g) All proceedings under the provisions of this section are
subject to review by the supreme court of appeals.
§30-1-10. Disposition of money fines; legislative audit.
(a) The secretary of every board referred to in this chapter
shall receive and account for all money which it derives pursuant
to the provisions of this chapter which are applicable to it. With the exception of money received as fines, each board shall pay all
money which is collected into a separate special fund of the state
treasury which has been established for each board. This money
shall be used exclusively by each board for purposes of
administration and enforcement of its duties pursuant to this
chapter. Any money received as fines shall be deposited into the
general revenue fund of the state treasury. When the special fund
of any board accumulates to an amount which exceeds twice the
annual budget of the board or ten thousand dollars, whichever is
greater, the excess amount shall be transferred by the state
treasurer to the state general revenue fund.
(b) Every licensing board which is authorized by the
provisions of this chapter shall be subject to audit by the office
of the legislative auditor.
§30-1-11. Compensation of members; expenses.
Each member of every board which is referred to in this
chapter shall receive compensation and expense reimbursement which
shall not exceed the amount paid to members of the Legislature for
their interim duties as recommended by the citizens legislative
compensation commission and authorized by law for each day or
portion thereof engaged in the discharge of official duties.
§30-1-12. Record of proceedings; register of applicants; certified copies of records prima facie evidence; report to governor and
Legislature.
(a) The secretary of every board shall keep a record of its
proceedings and a register of all applicants for license or
registration, showing for each the date of his or her application,
his or her name, age, educational and other qualifications, place
of residence, whether an examination was required, whether the
applicant was rejected or a certificate of license or registration
granted, the date of this action, the license or registration
number, all renewals of the license or registration, if required,
and any suspension or revocation thereof. The books and register
of the board shall be open to public inspection at all reasonable
times, and the books and register, or a copy of any part thereof,
certified by the secretary and attested by the seal of the board,
shall be prima facie evidence of all matters recorded therein.
(b) On or before the first day of January of each year in
which the Legislature meets in regular session, the board shall
submit to the governor and to the Legislature a report of its
transactions for the preceding two years, an itemized statement of
its receipts and disbursements for that period, a full list of the
names of all persons licensed or registered by it during that
period, statistical reports by county of practice, by specialty if appropriate to the particular profession, and a list of any
complaints which were filed against persons licensed by the board,
including any action taken by the board regarding those complaints.
The report shall be certified by the president and the secretary of
the board, and a copy of the report shall be filed with the
secretary of state.
ARTICLE 2. ATTORNEYS-AT-LAW.
§30-2-5a. Legal corporations.
(a) One or more individuals, each of whom is licensed to
practice law within this state, may organize and become a
shareholder or shareholders of a legal corporation. Individuals
who may be practicing law as an organization created otherwise than
pursuant to the provisions of this section may incorporate under
and pursuant to this section. This section is not intended to
amend the statutory or common law as it relates to associations or
partnerships, except to allow partnerships of lawyers to organize
as a legal corporation.
(b) A legal corporation may render professional service only
through officers, employees and agents who are themselves duly
licensed to render legal service within this state. The term
"employee" or "agent" as used in this section does not include
secretaries, clerks, typists, paralegal personnel or other individuals who are not usually and ordinarily considered by custom
and practice to be rendering legal services for which a license is
required.
(c) This section does not modify the law as it relates to the
relationship between a person furnishing legal services and his
client, nor does it modify the law as it relates to liability
arising out of such a professional service relationship. Except
for permitting legal corporations, this section is not intended to
modify any legal requirement or court rule relating to ethical
standards of conduct required of persons providing legal service.
(d) A legal corporation may issue its capital stock only to
persons who are duly licensed attorneys.
(e) When not inconsistent with this section, the organization
and procedures of legal corporations shall conform to the
requirements of article one, chapter thirty-one of this code.
(f) The West Virginia state bar may require that lawyers under
its licensing authority must obtain its prior authorization before
beginning to act as a legal corporation and may require a fee of
not more than fifty dollars for each application for authorization
to form a legal corporation. The state bar may adopt rules: (1)
To set reasonable standards for granting or refusing prior
approval; (2) to require appropriate information therefor from a legal corporation applicant; and (3) to notify the secretary of
state that certain persons have been given authorization by the
state bar to form a legal corporation.
(g) Upon notification by the West Virginia state bar of its
approval, the secretary of state, upon compliance by the
incorporators with this section and the applicable provisions of
chapter thirty-one of this code, may issue to the incorporators a
certificate of incorporation for the legal corporation which then
may engage in practice through duly licensed or otherwise legally
authorized stockholders, employees and agents.
(h) A shareholder of a legal corporation may sell or transfer
his or her shares of stock in such corporation only to another
individual who is duly licensed to practice law in this state or
back to the corporation. However, a fiduciary representative of
the estate of a lawyer may hold the stock or interest of the lawyer
for a reasonable time during the administration of the estate.
(i) The corporate name of a legal corporation shall contain
the last name or names of one or more of its shareholders. If the
rules of the state bar so permit, the corporate name may contain or
include the name or names of former shareholders or of persons who
were associated with a predecessor partnership or other
organization. The corporate name shall also contain the words "legal corporation" or the abbreviation "L.C." The use of the word
"company", "corporation" or "incorporated" or any other words or
abbreviations in the name of a corporation organized under this
article which indicates that such corporation is a corporation,
other than the words "legal corporation" or the abbreviation
"L.C.", is specifically prohibited.
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