H. B. 3311
(By Delegates Shook, Cowles, Brown, Schoen,
Crosier, Michael, Azinger and Cann)
[Introduced March 23, 2009; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §16-5G-2 and §16-5G-4 of the Code of
West Virginia, 1931, as amended, all relating to hospitals
owned or operated by nonprofit corporations, nonprofit
associations or local governmental units; clarifying that
these hospitals may have only one governing body whose
meetings shall be open to the public; enumerating matters
which may be acted upon in executive session; and clarifying
and expanding the authorization for the holding of executive
sessions.
Be it enacted by the Legislature of West Virginia:
That section §16-5G-2 and §16-5G-4 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 5G. OPEN HOSPITAL PROCEEDINGS.
§16-5G-2. Definitions.
As used in this article:
(1) "Decision" means any determination, action, vote or final
disposition of a motion, proposal, resolution, order or measure on
which a vote of the governing body is required at any meeting at
which a quorum is present;
(2) "Executive session" means any meeting or part of a meeting
of a the governing body of a hospital that is closed to the public;
(3) "Governing body" means:
(a) With respect to a hospital owned or operated by a
nonprofit corporation, the board of directors established pursuant
to section eight hundred one, article eight, chapter thirty-three-e
of this code;
(b) With respect to a county hospital, the board of trustees
established pursuant to section fifteen, article three, chapter
seven of this code; or
(c) With respect to all other hospitals subject to this
article, the
single board of directors
, board of trustees, or,
if
given another name, other the single group of governing board
members group of persons having the authority to make decisions
for
or recommendations on concerning the management and control of
policy or administration to such a hospital:
owned or operated by
a nonprofit corporation, nonprofit association or local
governmental unit, the membership of which governing body consists
of two or more members; Provided, That the medical staff of a hospital, the executive committee of the medical staff of a
hospital, and any other committee or subcommittee of the medical
staff of a hospital may not be considered the governing body.
(4) "Hospital" means any hospital owned or operated by a
nonprofit corporation, nonprofit association or local governmental
unit;
(5) "Meeting" means the convening of
the a governing body of
a hospital for which a quorum is required in order to make a
decision or to deliberate toward a decision on any matter:
Provided, That the convening of a committee, subcommittee or other
subcomponent of the governing body is not a meeting within the
meaning of this article unless the committee, subcommittee or other
subcomponent is vested with independent decision-making authority
and exercises the independent decision-making authority at any
convening; and That a medical staff conference is not a meeting
(6) "Quorum" means, unless otherwise defined by applicable
law, a simple majority of the constituent membership of
a the
governing body.
§16-5G-4. Exceptions.
(a) This article does not prevent the governing body of a
hospital from holding an executive session during a regular,
special or emergency meeting, after the presiding officer has
identified the authorization under this article for the holding of
such executive session and has presented it to the governing body and to the general public, but no official action shall be made in
such executive session
except as is necessary:
(1) To protect the confidentiality of protected health
information as defined by the Health Insurance Portability and
Accountability Act of 1996;
(2) To preserve the privilege and confidentiality of peer
review information as provided in article three-c, chapter thirty
of this code;
(3) To approve confidential legal settlements or otherwise act
in connection with matters described in subdivision (5), subsection
(b) of this section; or
(4) To end an executive session and readmit the public to a
meeting.
(b) An executive session may be held only upon a majority
affirmative vote of the members present of the governing body of a
hospital as defined in this article for the following:
(1) The appointment, employment, retirement, promotion,
demotion, disciplining, resignation, discharge, dismissal or
compensation of any officer or employee, or other personnel
matters, or for the purpose of conducting a hearing on a complaint
against an officer or employee, unless the officer or employee
requests an open meeting;
(2) The disciplining, suspension or expulsion of any student
or trainee enrolled in a program conducted by the hospital, unless the student or trainee requests an open meeting;
(3) Investigations and proceeding
s involving the issuance,
denial, suspension or revocation of the authority or privilege of
a medical practitioner to use the hospital and to engage in
particular kinds of practice or to perform particular kinds of
operations, unless the person seeking the authority or privilege or
whose authority or privilege was denied, suspended or revoked
requests an open meeting;
(4) Matters concerning the failure or refusal of a medical
practitioner to comply with reasonable regulations of a hospital
with respect to the conditions under which operations are performed
and other medical services are delivered;
(5) To
conduct privileged attorney-client communications or to
consider the work product of the hospital's attorney or the
hospital administration,
including, but not limited to, materials
prepared by an attorney or others in anticipation of litigation,
litigation strategies and reports, confidential legal settlements
and discussions, negotiations and alternative dispute resolution
proceedings conducted in pursuit of a legal settlement;
(6) The physical or mental health of any person, unless the
person requests an open meeting;
(7) Matters which, if discussed in public, would be likely to
affect adversely the reputation of any person;
(8) Any official investigation or matters relating to crime
prevention or law enforcement;
(9) The development of security personnel or devices; or
(10) Matters involving or affecting the purchase, sale or
lease of property, advance construction planning, the investment of
public funds or other matters involving competition which, if made
public, might adversely affect the financial or other interest of
the state or any political subdivision or the hospital;
or
(11) To consider or act upon the matters described in
subdivisions (1), (2), (3) and (4), subsection (a) of this section.
NOTE: The purpose of this bill is to clarify that hospitals
owned or operated by nonprofit corporations, nonprofit associations
or local governmental units have only one governing body whose
meetings shall be open to the public; to establish certain matters
that may be acted upon in executive session by the governing body
of a hospital; and to clarify and expand the authorization for the
holding of executive sessions.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.