§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.

§30-1-2. Oath.

Every person appointed as a member of any board referred to in this article, before proceeding to exercise the authority or discharge the duties of the office, shall take the oath prescribed by section 5 of article IV of the state Constitution, and shall file the certificate thereof with the Secretary of State.

§30-1-2a. Required orientation session.

(a) The Auditor shall provide at least one seminar each year for state licensing boards to inform the boards of the duties and requirements imposed by state law and rules. All state agencies shall cooperate with and assist in providing the seminar if the Auditor requests.

(b) The seminar may include the following topics:

(1) Powers and duties of the boards and board members;

(2) The financial procedures for boards;

(3) Purchasing requirements;

(4) Open meeting requirements;

(5) Ethics;

(6) Rule-making procedures;

(7) Procedures for the handling of complaints, investigations and administrative hearings;

(8) Disciplinary actions available to boards;

(9) Records management procedures;

(10) Annual reports; and

(11) Any other topics the Auditor determines necessary or informative.

(c) (1) The board members and the executive director or the chief financial officer of a board newly created under the provisions of this chapter shall attend a seminar provided under this section within one year of the creation of the board.

(2) The chairperson, the executive director or the chief financial officer of the board shall annually attend a seminar provided under this section.

(3) Each board member shall attend at least one seminar provided under this section during each term of office.

(d) The Auditor may charge a registration fee for the seminar to cover the cost of providing the seminar. The fee may be paid from funds available to a board and a board may approve an expense reimbursement for the attendance of its members, executive director and the chief financial officer of the board.

(e) Prior to January 1 of each year, the Auditor shall provide to the chairs of the Joint Standing Committee on Government Organization a list of:

(1) The names and titles of the persons who attended the seminar;

(2) The boards represented; and

(3) The number and dates of the seminars offered by the Auditor during the previous year.

(f) Ex officio members who are elected or appointed state officers or employees and members of boards that have purely advisory functions with respect to a department or agency of the state are exempt from the requirements of this section.

§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.

§30-1-4. Official seal; rules and regulations.

Every such board shall adopt an official seal which shall be affixed to all licenses or certificates of registration issued by it, and shall make such rules and regulations, not inconsistent with law, as are necessary to regulate its proceedings and to carry out the purposes and enforce the provisions of this chapter applicable to such board.

§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.

(b) The board may 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 may administer oaths for these purposes.

(c) Every board referred to in this chapter shall investigate and resolve complaints which it receives and shall, within six months of the complaint being filed, send a status report to the party filing the complaint and the respondent by certified mail with a signed return receipt and within one year of the status report’s return receipt date issue a final ruling, unless the party filing the complaint and the board agree in writing to extend the time for the final ruling. The time period for final ruling shall be tolled for any delay requested or caused by the respondent or by counsel for the respondent and in no event shall a complaint proceeding be dismissed for exceeding the time standards in this section when such overage is the result of procedural delay or obstructive action by the accused or his or her counsel or agents.

(d) 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, and shall provide public access on a website to all completed disciplinary actions in which discipline was ordered.  If a board is unable to provide access, the Attorney General shall provide a link to this information on the consumer protection division website, together with a link to the website of all other boards subject to this chapter. Every board shall 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 the violations. Every person licensed or registered by a board shall 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.

(e) 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.

§30-1-5a. Reporting of fraud and misappropriation of funds.

(a) Whenever a board referred to in this chapter obtains information that an employee, officer or member of the board may have misappropriated funds, engaged in fraud, or otherwise violated a law relating to the public trust, the board shall timely report such information or allegation in writing to the commission on special investigations, established in article five, chapter four of this code.

(b) The reporting of such information under subsection (a) of this section shall not prevent, relieve or replace a report to a law-enforcement agency, if appropriate or warranted.

§30-1-6. Application for license or registration; examination fee; establishment of application deadline and fees by legislative rule; prohibiting discrimination.

(a) An applicant for an authorization to practice under the provisions of this chapter shall apply in writing to the proper board and submit the applicable fees.

(b) Each board may establish, by legislative rule, a deadline for an application for an examination.

(c) Notwithstanding the specific fees set forth in this chapter, each board may set fees by legislative rule that are sufficient to enable the board to effectively carry out its duties and responsibilities. At least thirty days prior to proposing a rule on fees, the board shall notify its membership of the proposed rule by:

(1) Mailing a copy of the proposed rule to its membership; or

(2) Posting the proposed rule on its website and notifying its membership of the website posting by:

(A) Mailing a postcard;

(B) Emailing a notice; or

(C) Placing a notice in its newsletter.

(d) In addition to any other information required by the board, an applicant's social security number shall be recorded on an application: Provided, That the board shall redact the social security number on any copies provided to the public.

(e) A board may not discriminate against an applicant because of political or religious opinion or affiliation, marital status, race, color, gender, creed, age, national origin, disability or other protected group status.

(f) A board may deny an applicant an authorization to practice in this state if an applicant's authorization to practice in another jurisdiction has been revoked. The denial may be made by the board without a hearing unless the applicant requests a hearing within thirty days of the denial. A hearing must be conducted pursuant to the provisions of this article or the provisions contained in the rules of the board.

§30-1-6a.

Repealed.

Acts, 2014 Reg. Sess., Ch. 140.

§30-1-6b.

Repealed.

Acts, 2014 Reg. Sess., Ch. 140.

§30-1-7. Contents of license or certificate of registration.

Every license or certificate of registration issued by each board shall bear a serial or license number, the full name of the applicant, the date of issuance, and the seal of the board: Provided, That licenses or certificates of registration issued or renewed on or after July 1, 2003, will indicate both the date of issuance and the date of expiration. The licenses or certificates of registration 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.

(a) A board referred to in this chapter shall establish continuing education requirements as a prerequisite to license renewal. A 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.

(b) Notwithstanding any other provision of this code, a person issued an initial license to practice medicine and surgery, a license to practice podiatry or licensed as a physician assistant by the West Virginia Board of Medicine; a person issued a license to practice dentistry by the West Virginia Board of Dental Examiners; a person issued a license to practice optometry by the West Virginia Board of Optometry, a person licensed as a pharmacist by the West Virginia Board of Pharmacy; a person licensed to practice registered professional nursing or licensed as an advanced nurse practitioner by the West Virginia Board of Examiners for Registered Professional Nurses; a person licensed as a licensed practical nurse by the West Virginia State Board of Examiners for Licensed Practical Nurses; and a person licensed to practice medicine and surgery as an osteopathic physician and surgeon, or licensed or certified as an osteopathic as physician assistant by the West Virginia Board of Osteopathy shall complete drug diversion training, best-practice prescribing of controlled substances training, and training on prescribing and administering an opioid antagonist if that person prescribes, administers, or dispenses a controlled substance as that term is defined in §60A-1-101 of this code.

A person who receives his or her initial license or certificate from any of the boards set forth in this section shall complete the continuing education requirements set forth in this section within one year of receiving his or her initial license from that board.

§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 may 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 convicted of a felony or has been found to have engaged in such conduct, practices or acts, every board referred to in this chapter may enter into consent decrees, to reprimand, to enter into probation orders, to levy fines not to exceed $1,000 per day per violation, or any of these, singly or in combination. Each board may also 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.

(b) 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.

(c) Every board referred to in this chapter may 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.

(d) Every board referred to in this chapter may revoke the license or registration of an individual licensed or otherwise lawfully practicing within this state whose license or registration in any other state, territory, jurisdiction or foreign nation has been revoked by the licensing authority thereof.

(e) 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, except:

(1) A board is authorized to suspend or revoke a certificate, license, registration or authority prior to a hearing if the person's continuation in practice constitutes an immediate danger to the public; or

(2) After due diligence, if a board cannot locate a person licensed under the provisions of this chapter within sixty days of a complaint being filed against the licensee, then the board may suspend the license, certificate, registration or authority of the person without holding a hearing. After due diligence, if a Board still cannot locate the person licensed under the provisions of this chapter thirty days after the suspension of the person's license, certificate, registration or authority, then the board may revoke the license, certificate, registration or authority of the person without holding a hearing.

(f) 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 of the certificate, license, registration or authority 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 consider 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.

(g) 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.

(h) 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 are in accordance with the provisions for hearings which are set forth in this section.

(i) 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 of the hearing retained in its files. The board shall make a written report of its findings, which shall constitute part of the record.

(j) All proceedings under the provisions of this section are subject to review by the Supreme Court of Appeals.

(k) On or before July 1, 2001, every board referred to in this chapter shall adopt procedural rules in accordance with the provisions of article three, chapter twenty-nine-a of this code, which shall specify a procedure for the investigation and resolution of all complaints against persons licensed under this chapter. The proposed legislative rules relating only to complaint procedures or contested case hearing procedures required by the prior enactment of this subsection shall be redesignated as procedural rules in accordance with the provisions of article three, chapter twenty-nine-a of this code. Each board shall file the procedural rules required by this subsection by January 31, 2001. The public hearing or public comment period conducted for the proposed legislative rules shall serve as the public hearing or public comment period required by section five, article three, chapter twenty-nine-a of this code.

§30-1-8a. Reinstatement of license.

(a) Every board referred to in this chapter is authorized to consider the reinstatement of any license or registration that has been suspended, revoked or not renewed, upon a showing that the applicant can resume practicing with reasonable skill and safety.

(b) Each board may adopt a procedural rule in accordance with the provisions of article three, chapter twenty-nine-a of this code, specifying forms and procedures for application for reinstatement.

§30-1-8b. Mediation of complaints.

(a) Any board referred to in this chapter may, on its own motion or by stipulation of the parties, refer any complaints against persons licensed under this chapter to mediation.

(b) Any board may maintain a list of mediators with expertise in professional disciplinary matters or may obtain a list from the West Virginia center for dispute resolution or the West Virginia State Bar's mediator referral service. The board shall designate a mediator from the list by neutral rotation.

(c) The mediation is not considered a proceeding open to the public and any reports and records introduced at the mediation are not part of the public record. The mediator and all participants in the mediation shall maintain and preserve the confidentiality of all 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 to the use in writing.

(d) The mediation may not be used to delay any disciplinary proceeding.

§30-1-9. Administrative appeal of board action; judicial review.

(a) A person, not an applicant for or holder of a license to practice law, who has been denied a license or registration; whose certificate, license, registration, or authority has been suspended or revoked; or against whom disciplinary action has been otherwise imposed may appeal the final decision of the board.

(b) All proceedings in the appeal of the board’s action, and any judicial review thereof, shall be conducted in accordance with the provisions of §29A-5-1 et seq. of this code and any procedural rules adopted by the board pursuant thereto.

§30-1-10. Disposition of money fines; legislative audit; review of board’s fee structure.

(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 $10,000, whichever is greater, the State Treasurer shall:

(1) Transfer the excess amount to the state General Revenue Fund; and

(2) Notify the Legislative Auditor that the transfer has been made.

(b) (1) Every licensing board which is authorized by the provisions of this chapter shall be subject to audit by the office of the Legislative Auditor.

(2) Within a reasonable time after the State Treasurer notifies the Legislative Auditor of a transfer required to be made under this section, the Legislative Auditor shall conduct a review of the fee structure of the applicable board to determine if the amount of the board’s fees generate excessive revenue, when compared to the board’s normal expenses. If the Legislative Auditor finds that excess revenue is generated, he or she shall report his or her findings to the Legislature’s Joint Standing Committee on Government Organization, along with recommendations on how the fees can be adjusted to generate only the amount the board reasonably needs to operate under this chapter.

§30-1-11. Compensation of members; expenses.

(a) Each member of every board in this chapter is entitled to receive compensation for attending official meetings or engaging in official duties not to 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. A board member may not receive compensation for travel days that are not on the same day as the official meeting or official duties.

(b) The limitations contained in this section do not apply if they conflict with provisions of this chapter relating to a particular board and enacted after January 1, 1995.

(c) A board may reimburse actual and necessary expenses incurred for each day or portion of a day engaged in the discharge of official duties in a manner consistent with guidelines of the Travel Management Office of the Department of Administration.

(d) No member of any board in this chapter may receive compensation as an employee of the board.

§30-1-12. Record of proceedings; register of applicants; certified copies of records prima facie evidence; report to Governor and Legislature; public access.

(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, mailing address, 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, 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) The record of the board’s proceedings shall be open to public inspection at all reasonable times and copies provided upon oral or written request after payment of a reasonable fee, as determined by the board in accordance with the provisions of §29B-1-3 of this code.

(c) The register of applicants shall be made available upon written request on a form prescribed by the board. The form shall require the requester to provide at least the following information:

(1) Legal identity;

(2) Purpose for which the register is sought;

(3) A telephone number where the requester may be contacted by the board; and

(4) Whether copies of the register are requested.

If requested, copies of the register shall be provided after payment of a reasonable fee, as determined by the board in accordance with the provisions of §29B-1-3 of this code.

The board may deny a request that the register, or copies thereof, be made available or provided if it determines, in its discretion, that the request is made for an improper purpose.

(d) On or before January 1 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 activities for the preceding two years, containing the following information for that period:

(1) The total receipts and disbursements for each year;

(2) A list of amounts received in each year for the following categories of receipts:

(A) License applications, registrations, and renewals;

(B) Examination fees, if applicable;

(C) Other fees, including late fees, copying charges, and fees for printed certificates;

(D) Fines or penalties;

(E) Expense reimbursements from disciplinary actions; and

(F) Grants, special appropriations, or other sources of revenue not from fees;

(3) A list of amounts spent in each year for the following categories of expenditures:

(A) Personal services;

(B) Board member per diem compensation;

(C) Travel expenses and automobile mileage;

(D) Professional contracts;

(E) Rent;

(F) Office supplies;

(G) Postage;

(H) Entertainment and hosting;

(I) Insurance; and

(J) Bank costs;

(4) A complete list of the names of all persons newly licensed or registered;

(5) A table or list showing numbers of licensees or registrants by West Virginia county of practice or, for out-of-state licensees or registrants, by state of residence, and by specialty, if appropriate to the particular profession;

(6) Complaints filed and investigations opened by the board, with a brief classification of the nature of the complaint, together with the dates of compliance with the time requirements of §30-1-5(c) of this code, and the disposition, if any;

(7) In addition to complaints reported under the preceding subdivision, complaints resolved and investigations closed by the board, with a brief classification of the nature of the complaint, together with the dates of compliance with the time requirements of §30-1-5(c) of this code, and the disposition, if any; and

(8) Copies of the agendas for, and minutes of, board and committee or subcommittee meetings.

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 and with the legislative librarian.

(e) To promote public access, the secretary of every board shall ensure that the address and telephone number of the board are included every year in the state government listings of the Charleston area telephone directory. Every board shall maintain a website that provides at least the following information:

(1) Name of each board member;

(2) Names of all board staff;

(3) Contact information for each staff member, including office telephone number, office location, and office mailing address;

(4) A secure electronic means of contacting each staff member;

(5) The roster of licensed or registered practitioners;

(6) Copies of approved meeting minutes for meeting held during the preceding year;

(7) A schedule of regular meeting days for each calendar year; and

(8) Notice of each upcoming board meeting.

§30-1-13. Roster of licensed or registered practitioners.

The secretary of every board shall prepare and maintain a complete roster of the names of all persons licensed, or registered, and practicing in this state the profession or occupation to which such board relates, arranged alphabetically by name. Each board shall make the roster available upon request to any member of the public and shall also place and maintain the roster on its website.

§30-1-14. Remission of certain fees.

Every board of examination or registration referred to in this chapter is hereby authorized, under such rules and regulations as may be adopted by each board, to remit all annual license or annual registration fees required to be paid by any licensee or registrant under its supervision during such time as such licensee or registrant is serving with the Armed Forces of the United States of America, and to retain the name of such licensee or registrant in good standing on the roster of said board during said time.

§30-1-15. Office of executive secretary of the health profession licensing boards; appointment of executive secretary; duties.

The office of the executive secretary of the health professional licensing boards is hereby created. The health profession licensing boards shall include those boards provided for in articles two-a, four, five, six, seven, seven-a, eight, ten, fourteen, sixteen, seventeen, twenty, twenty-one, twenty-five and twenty-six of chapter thirty of this code. Notwithstanding any other provision of this code to the contrary the office space personnel, records and like business affairs of the health profession licensing boards shall be within the office of the executive secretary of the health profession licensing boards. The secretaries of each of the health profession licensing boards shall coordinate purchasing, record keeping, personnel, use of reporters and like matters under the executive secretary in order to achieve the most efficient and economical fulfillment of their functions. The executive secretary shall be appointed by the director of health and shall report to the director. The executive secretary shall keep the fiscal records and accounts of each of the boards. The executive secretary shall keep the director informed as to the needs of each of the boards. The executive secretary shall coordinate the activities and efforts of the boards with the activities of the health resources advisory council and shall see that the needs for health manpower perceived by the boards are communicated to the health resources advisory council. The executive secretary shall keep any statistics and information on health professions, collected by or for the boards and shall make such statistics and information available to the health resources advisory council to aid it in carrying out its responsibilities.

§30-1-16. Liability limitations of peer review committees and professional standards review committees.

No member of a peer review committee or a professional standards review committee of a state or local professional organization, including, but not limited to, committees established to review the practices of doctors of chiropractic, doctors of veterinary medicine, doctors of medicine, doctors of dentistry, attorneys at law, real estate brokers, architects, professional engineers, certified public accountants, public accountants or registered nurses shall be deemed liable to any person for any action taken or recommendation made within the scope of the functions of the committee, if the committee member acts without malice and in the reasonable belief that such action or recommendation is warranted by the facts known to him after reasonable effort to obtain the facts of the matter as to which such action is taken or recommendation is made.

§30-1-17. Annual reports.

(a) A licensing board, organized under the provisions of this chapter, may submit its annual report on electronic media to be filed in the same manner as a printed annual report, or transmitted electronically via the Internet. Any report filed in an electronic format shall be considered as having satisfied the filing requirements.

(b) If a board chooses to submit its annual report electronically, it shall transmit an electronic copy to the legislative manager.

§30-1-18. Retired, volunteer and inactive status licenses.

(a) Every board referred to in this chapter may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, to establish licensure criteria and continuing education requirements for retired, volunteer and inactive licenses.

(b) If a board which establishes licensure criteria as authorized in this section does not establish specific continuing education requirements, the retired, volunteer or inactive licensees shall comply with the same continuing education requirements as established by the respective boards for an active license.

§30-1-19. Combining board staff functions.

(a) Any board referred to in this chapter may combine administrative staff functions with any other board or boards referred to in this chapter, pursuant to the provisions of subsection (b) of this section, to carry out the administrative duties of the boards as set forth in this article, the practice acts of each board set forth in this chapter and the legislative rules of each board: Provided, That each board retains responsibility for fulfilling its statutory duties.

(b) Before combining administrative staff functions pursuant to subsection (a) of this section, the boards shall, in consultation with the office of the Attorney General, enter into a memorandum of understanding with the following provisions:

(1) The names of the boards combining administrative staff functions;

(2) The administrative staff functions being combined, including the staffs' titles and duties relative to each board;

(3) The prorata share of expenses that each board will be responsible for paying, including salaries, office rent, office supplies, telephone, fax and computer services, travel expenses and any other expenses anticipated by the boards;

(4) A description of how decisions will be made by the boards, including employment of staff, the staff's functions and duties, and any other necessary decisions;

(5) A description of how modifications may be made to the terms of the agreement; and

(6) Any other provisions necessary to set forth the agreement of the boards.

(c) The boards that combine administrative staff functions pursuant to this section, may promulgate rules in accordance with the provisions of chapter twenty-nine-a of this code, to make any necessary changes to facilitate the combining of administrative staff functions. The boards may also promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code, to correct any conflicts with a board's current rules.

§30-1-20. Certain boards to regulating health care professions to gather retirement information and include in annual reports.

(a) The health related professional licensing boards referred to in subsection (c) of this section shall request that their licensees provide the boards with their anticipated retirement dates, age, gender, percentage of time working direct services, percentage of time working administration and county of practice, in order to facilitate planning for future workforce needs for health care professionals.

(b) The boards shall redact personal identifiers and include only aggregate data in the annual reports required by the provisions of section twelve of this article, beginning with the annual report due on or before January 1, 2016.

(c) The provisions of this section apply to:

(1) The West Virginia Board of Medicine, established pursuant to the provisions of article three of this chapter;

(2) The West Virginia Board of Examiners for Registered Professional Nurses, established pursuant to the provisions of article seven of this chapter;

(3) The West Virginia Board of Examiners for Licensed Practical Nurses, established pursuant to the provisions of article seven-a of this chapter;

(4) The West Virginia Board of Pharmacy, established pursuant to the provisions of article five of this chapter;

(5) The West Virginia Board of Dentistry, established pursuant to the provisions of article four of this chapter; and

(6) The West Virginia Board of Osteopathy, established pursuant to the provisions of article fourteen of this chapter.

§30-1-21. Exemption from licensure for professional practice for a charitable function.

(a) A person holding an unrestricted license, certificate, registration or permit granted by another state or jurisdiction to practice a profession or occupation licensed under this chapter may serve as a volunteer without compensation for a charitable function for a period not to exceed ten days, subject to the approval process described in this section:Provided,That a person who has received any completed disciplinary actions in which discipline was ordered in any of the three most recent years, or is the subject of any pending disciplinary actions is not eligible for this charitable exemption from licensure.

(b) The person shall notify the board of the nature of the volunteer charitable practice, the specific dates the person will participate in the charitable practice, and shall provide to the board a list of all professional and occupational licenses, registrations, permits or certificates held in each state or jurisdiction for the previous three years.

(c) Upon a review of the information required by this section, the board shall provide a temporary authorization to a qualified volunteer to participate in the volunteer activity for the duration not to exceed ten days. Each board shall keep a record of each authorization issued pursuant to his section.

(d) The board may not charge a fee to authorize this charitable practice.

§30-1A-1. Legislative findings; policy.

(a) The Legislature finds that regulation should be imposed on an occupation or profession only when necessary for the protection of public health and safety. The Legislature further finds that establishing a procedure for reviewing the necessity of regulating an occupation or profession prior to enacting laws for such regulation and analyzing existing occupational regulations will better enable it to evaluate the need for the regulation and to determine the least restrictive regulation consistent with public health and safety.

(b) For occupational regulations and the boards of this state, it is the policy of this state that:

(1) The right of an individual to pursue a lawful occupation is a fundamental right;

(2) Where the state finds it is necessary to displace competition, it will use the least restrictive regulation to protect consumers from present, significant, and substantiated harms that threaten public health and safety; and

(3) Legislative leaders will assign the responsibility to review legislation and laws related to occupational regulations.

§30-1A-2. Required application for regulation of professional or occupational group; application and reporting dates.

(a) The Joint Standing Committee on Government Organization is responsible for facilitating the review of all legislation to enact or modify an occupational regulation to ensure compliance with the policy in §30-1A-1 of this code. The Joint Standing Committee on Government Organization shall refer the review of a proposal for regulation of any unregulated profession or occupation to the Performance Evaluation and Research Division of the Office of the Legislative Auditor.

 (b) Any professional or occupational group or organization, any individual, or any other interested party that proposes the regulation of any unregulated profession or occupation, or who proposes to establish, revise, or expand the scope of practice of a regulated profession or occupation shall submit an application to the Joint Standing Committee on Government Organization, as set out in this article.

 (c) The Joint Standing Committee on Government Organization may only accept an application for regulation of a profession or occupation, or establishment, revision, or expansion of the scope of practice of a regulated profession or occupation, when the party submitting an application files with the committee a statement of support for the proposed regulation that has been signed by at least 10 residents or citizens of the State of West Virginia who are members of the professional or occupational group or organization for which regulation is being sought, or for which establishment, revision, or expansion of the scope of practice of a regulated profession or occupation is being sought.

 (d) The completed application shall contain:

(1) A description of the occupation or profession for which regulation is proposed, or for which establishment, revision, or expansion of the scope of practice of a regulated profession or occupation is proposed, including a list of associations, organizations, and other groups currently representing the practitioners in this state, and an estimate of the number of practitioners in each group;

(2) A definition of the problem and the reasons why regulation or establishment, revision, or expansion of the scope of practice is necessary;

(3) The reasons why government certification, government registration, occupational licensure, or other type of regulation is being requested and why that regulatory alternative was chosen over a less restrictive alternative;

(4) A detailed statement of the proposed funding mechanism to pay the administrative costs of the regulation or the establishment, revision, or expansion of the scope of practice, or of the fee structure conforming with the statutory requirements of financial autonomy as set out in this chapter;

(5) A detailed statement of the location and manner in which the group plans to maintain records which are accessible to the public as set out in this chapter;

(6) The benefit to the public that would result from the proposed regulation or establishment, revision, or expansion of the scope of practice;

(7) The cost of the proposed regulation or establishment, revision, or expansion of the scope of practice; and

(8) Evidence, if any, of present, significant, and substantiated harms to consumers in the state.

§30-1A-2a.

Repealed.

Acts, 2007 Reg. Sess., Ch. 203.

§30-1A-3. Analysis and evaluation of application.

(a) The Joint Standing Committee on Government Organization shall refer the completed application of the professional or occupational group or organization to the Performance Evaluation and Research Division of the Office of the Legislative Auditor.

(b) The Performance Evaluation and Research Division of the Office of the Legislative Auditor shall conduct an analysis and evaluation of the application. The analysis and evaluation shall be based upon the criteria listed in subsections (c) through subsection (k) of this section. The Performance Evaluation and Research Division of the Office of the Legislative Auditor shall submit a report, and such supporting materials as may be required, to the Joint Standing Committee on Government Organization, as set out in this section.

(c) The Performance Evaluation and Research Division of the Office of the Legislative Auditor shall determine if the proposed regulation meets the state’s policy as set forth in §30-1A-1(b) of this code of using the least restrictive regulation necessary to protect consumers from present, significant, and substantiated harms.

(d) The Performance Evaluation and Research Division of the Office of the Legislative Auditor’s analysis in subsection (c) of this section will use a rebuttable presumption that consumers are sufficiently protected by market competition and private remedies, as listed in §30-1A-1a(1) through §30-1A-1a(4) of this code. The Joint Standing Committee on Government Organization will consider the use of private certification programs that allow a provider to give consumers information about the provider’s knowledge, skills, and association with a private certification organization.

(e) The Performance Evaluation and Research Division of the Office of the Legislative Auditor may rebut the presumption in subsection (d) of this section if it finds both credible empirical evidence of present, significant, and substantiated harm, and that consumers do not have the information and means to protect themselves against such harm. If evidence of such unmanageable harm is found, the committee may recommend the least restrictive government regulation to address the harm, as listed in §30-1A-1a(5) through §30-1A-1a(16) of this code.

(f) The Performance Evaluation and Research Division of the Office of the Legislative Auditor will use the following guidelines to form its recommendation in subsection (j) or subsection (k) of this section. If the harm arises from:

(1) Contractual disputes, including pricing disputes, the office may recommend enacting a specific civil cause of action in small-claims court or circuit court to remedy consumer harm. This cause of action may provide for reimbursement of attorney’s fees or court costs, if a consumer’s claim is successful;

(2) Fraud, the office may recommend strengthening powers under the state’s deceptive trade practices acts or requiring disclosures that will reduce misleading attributes of the specific good or service or other relevant recommendations;

(3) General health and safety risks, the office may recommend enacting a regulation on the related process or requiring a facility license;

(4) A lack of protection for a person who is not a party to a contract between providers and consumers, the office may recommend requiring the provider have insurance;

(5) A shortfall or imbalance in the consumer’s knowledge about the good or service relative to the provider’s knowledge (asymmetrical information), the office may recommend enacting government certification;

(6) An inability to qualify providers of new or highly specialized medical services for reimbursement by the state, the office may recommend enacting a specialty certification solely for medical reimbursement;

(7) A systematic information shortfall in which a reasonable consumer of the service is permanently unable to distinguish between the quality of providers and there is an absence of institutions that provide guidance to consumers, the office may recommend enacting an occupational license; and

(8) The need to address multiple types of harm, the office may recommend a combination of regulations. This may include a government regulation combined with a private remedy including third-party or consumer-created ratings and reviews, or private certification.

(g) The Performance Evaluation and Research Division and other relevant divisions of the Office of the Legislative Auditor’s analysis of the need for regulation in subsection (e) of this section shall include the effects of legislation on opportunities for workers, consumer choices and costs, general unemployment, market competition, governmental costs, and other effects.

(h) The Performance Evaluation and Research Division of the Office of the Legislative Auditor’s analysis of the need for regulation in subsection (e) of this section should include comparisons of the legislation to whether and how other states regulate the occupation, including the occupation’s scope of practice that other states use, and the personal qualifications other states require.

(i) The Performance Evaluation and Research Division of the Office of the Legislative Auditor may also request information from state agencies that contract with individuals in regulated occupations and others knowledgeable of the occupation, labor market economics, or other factors, including costs and benefits, a professional who works in the profession, a board member who regulates the profession, and any other interested party.

 (j) For an application proposing the regulation of an unregulated profession or occupation, the Performance Evaluation and Research Division of the Office of the Legislative Auditor’s report shall include evaluation, analysis, and findings as to:

(1) Whether the unregulated practice of the occupation or profession clearly harms or endangers the health, safety, or welfare of the public, and any evidence of present, significant, and substantiated harms to consumers in the state;

(2) The requisite personal qualifications, if any;

(3) The scope of practice, if applicable;

(4) If regulation is required to address evidence of harm to consumers in the state, the least restrictive regulation of the occupation or profession; and

(5) Whether the professional or occupational group or organization should be regulated as proposed in the application.

(k) For an application proposing the establishment, revision, or expansion of the scope of practice of a regulated profession or occupation, the report shall include the evaluation, analysis, and findings as set forth in subsection (j) of this section inasmuch as applicable, and a clear recommendation as to whether the scope of practice should be established, revised, or expanded as proposed in the application.

(l) The Performance Evaluation and Research Division of the Office of the Legislative Auditor shall submit its report to the Joint Standing Committee on Government Organization no later than nine months after receiving the application for analysis.

§30-1A-4. Public hearing and committee recommendations.

(a) After receiving the required report, the Joint Standing Committee on Government Organization may conduct public hearings to receive testimony from the public, the Governor or his or her designee, the group, organization, or individual who submitted the proposal for regulation, a professional who works in the field, a board member who regulates the profession, and any other interested party.

(b) The Joint Standing Committee on Government Organization may issue additional findings and recommendations regarding:

(1) The least restrictive regulation of the occupation or profession; and

(2) Whether regulation would result in the creation of a new agency or board or could be implemented more efficiently through an existing agency or board.

(c) The Joint Standing Committee on Government Organization shall provide the Performance Evaluation and Research Division of the Office of the Legislative Auditor’s report and its findings and recommendations, if any, to the next regular session of the Legislature.

(d) The Performance Evaluation and Research Division of the Office of the Legislative Auditor shall publish its report on its website. The Joint Standing Committee on Government Organization shall also make the report and any additional findings and recommendations publicly available.

(e) Any committee considering legislation to enact or modify an occupational regulation shall receive the Performance Evaluation and Research Division of the Office of the Legislative Auditor’s report and the Joint Standing Committee on Government Organization’s findings and recommendations as provided for in subsection (b) of this section, if applicable, prior to voting on the legislation.

(f) Nothing in this article shall be construed to preempt federal regulation or to require a private certification organization to grant or deny private certification to any individual.

§30-1A-5. Review of existing occupational licenses.

(a) Starting on July 1, 2021, the Performance Evaluation and Research Division of the Office of the Legislative Auditor is responsible for annually reviewing those current occupational licenses that the committee chairs select.

(b) The Performance Evaluation and Research Division of the Office of the Legislative Auditor shall review all occupational licenses within the subsequent eight years and shall repeat such review processes in each eight-year period thereafter.

(c) The Performance Evaluation and Research Division of the Office of the Legislative Auditor shall use the criteria set forth in §30-1A-3(c) through §30-1A-3(i) of this code to analyze all existing occupational licenses. The office also may consider research or other credible evidence regarding whether an existing regulation directly helps consumers to avoid present, significant, and recognizable harm.

(d)(1) Starting on July 1, 2022, the Performance Evaluation and Research Division of the Office of the Legislative Auditor shall report the findings of its reviews to the Joint Standing Committee on Government Organization. In its report, the Performance Evaluation and Research Division of the Office of the Legislative Auditor may make recommendations to the committee that the Legislature enact new legislation that:

(A) Repeals the occupational licenses;

(B) Converts the occupational licenses to less restrictive regulation as set forth in the definition of “least restrictive regulation” in §30-1A-1a of this code;

(C) Changes the requisite personal qualifications of an occupational license;

(D) Redefines the scope of practice in an occupational license; or

(E) Reflects other recommendations to the Legislature.

(2) The Performance Evaluation and Research Division of the Office of the Legislative Auditor also may recommend that no new legislation is enacted.

(3) Nothing in this article shall be construed to authorize the office to review the means that a private certification organization uses to issue, deny, or revoke a private certification to any individual, or to require a private certification organization to grant or deny private certification to any individual.

§30-1A-6. Article construction.

(a) Nothing in this article shall be construed as limiting or interfering with the right of any member of the Legislature to introduce or of the Legislature to consider any bill that would create a new state governmental department or agency or amend the law with respect to an existing department or agency.

(b) Notwithstanding the provisions of subsection (a) of this section, the recommendations of the Joint Standing Committee on Government Organization are to be given considerable weight in determining if a profession or occupation should be regulated, or if the scope of practice of a regulated profession or occupation should be established, revised, or expanded.

(c) In construing any governmental regulation of occupations, including an occupational licensing statute, rule, policy, or practice, the following interpretations are to govern, unless the regulation is unambiguous:

(1) Occupational regulations should be construed and applied to increase economic opportunities, promote competition, and encourage innovation;

(2) Any ambiguities in occupational regulations should be construed in favor of workers and aspiring workers to work; and

(3) The scope of practice in occupational regulations should be construed narrowly to avoid burdening individuals with regulatory requirements that only have an attenuated relationship to the goods and services they provide.

§30-1B-1. Legislative findings and declarations.

The Legislature finds that:

(1) In recognition of the enormous sacrifices made by members of the Armed Forces of the United States of America and their families in voluntary service to this state and our nation, the citizens of West Virginia must endeavor to find new and innovative ways to improve the lives of military families and support their personal and professional growth;

(2) Many current and former members of the United States Armed Forces have acquired extensive academic, professional and occupational training and experience in various professions and occupations while serving in the Armed Forces, comparable to or exceeding that required in this state to register for examination or qualify for licensure, certification, or registration for similar or related occupations and professions;

 (3) Veterans of the  armed forces and the spouses of current members who return or relocate to this state  are frequently delayed in beginning employment as professionals because of issues with obtaining licenses, certifications or registrations upon arrival or return to West Virginia;

(4) Because of the training and experiences these individuals have and the challenges they may face when seeking licensure, certification, or registration, it is in the best interests of this state to ease these burdens and ensure the boards in this chapter use the relevant experiences of these men and women to ensure they are able to find employment as quickly as possible.

§30-1B-2.  Licensure for individuals with military training and experience.

(a) Except as provided in subsection (c) of this section, and notwithstanding any other provision of this Code to the contrary, all boards referred to in this chapter shall issue a license, certification, or registration to a military-trained applicant to allow the applicant to lawfully practice the applicant's occupation in this state if, upon application to a board, the military-trained applicant satisfies the following conditions:

(1) Has been awarded a military occupational specialty and has done all of the following at a level that is substantially equivalent to or exceeds the requirements for licensure, certification, or registration of the board from which the applicant is seeking licensure, certification, or registration in this state:

(A) Completed a military program of training;

(B) Completed testing or equivalent training and experience; and

(C) Performed in the occupational specialty;

(2) Has engaged in the active practice of the occupation for which the person is seeking a license, certification, or permit from the board in this state for at least two of the five years preceding the date of the application under this section; and

(3) Has not committed any act in any jurisdiction that would have constituted grounds for refusal, suspension, or revocation of a license to practice that occupation in this state at the time the act was committed and has no pending complaints.

(b) No later than 15 days following receipt of an application from a military-trained applicant, the board shall either issue a license, certification, registration, or notify an applicant when the applicant's military training or experience does not satisfy the requirements for licensure, certification, or registration and specify the criteria or requirements that the board determined that the applicant failed to meet and the basis for that determination. If a military-trained applicant has a pending complaint under §30-1B-3(a)(3), the board shall notify the applicant no later than 15 days following the board receiving written notice of the disposition of the pending complaint.

(c) A board shall issue a license, certification, or registration to a military-trained applicant to allow the applicant to lawfully practice the applicant's occupation in this state if the military-trained applicant, upon application to the board, satisfies the following conditions:

(1) Presents official, notarized documentation, such as a U.S. Department of Defense Form 214 (DD-214), or similar substantiation, attesting to the applicant's military occupational specialty certification and experience in an occupational field within the board's purview; and

(2) Passes a proficiency examination offered by the board to military-trained applicants in lieu of satisfying the conditions set forth in subsection (a) of this section; However, if an applicant fails the proficiency examination, then the applicant may be required by the board to satisfy those conditions.

(d) In any case where a proficiency examination is not offered routinely by a board, the board shall design a fair proficiency examination for military-trained applicants to obtain licensure, certification, or registration under this section. If a proficiency examination is offered routinely by a board, that examination shall satisfy the requirements of this section.

(e) All relevant experience of a military service member in the discharge of official duties shall be credited in the calculation of years of practice in an occupation as required under subsection (a) of this section.

(f) A nonresident licensed, certified, or registered under this section shall be entitled to the same rights and subject to the same obligations as required of a resident licensed, certified, or registered by all boards referred to in this chapter.

(g) Nothing in this section may be construed to apply to the practice of law under §30-2-1 et seq. of this code, the practice of medicine under article § 30-3-1 et. seq. of this code, or the practice of osteopathic medicine under article § 30-14-1 et seq. of this code.

(h) Nothing in this section may be construed to prohibit a military-trained applicant from proceeding under the existing licensure, certification, or registration requirements established by a board referred to in this chapter.

(i) A board may not charge a military-trained applicant an initial application fee for a license, certification, registration, or temporary practice permit issued pursuant to this section: Provided, That nothing in this subsection may be construed to prohibit a board from charging its ordinary fee for a renewal application or prohibit a third party from charging actual costs for a service such as a background check.

§30-1B-3. Licensure  for military spouses.

(a)  Notwithstanding any other provision of this code to the contrary, all boards referred to in this chapter shall issue a license, certification, or registration to a military spouse to allow the spouse of an active duty military member who is a resident of this state who is assigned to state, or federal active duty in this state to lawfully practice the spouse's occupation in this state if, upon application to a board, the spouse satisfies the following conditions:

(1) Holds a current license, certification, or registration from another jurisdiction, and that jurisdiction's requirements for licensure, certification, or registration are substantially equivalent to or exceed the requirements for licensure, certification, or registration of the board for which the applicant is seeking licensure, certification, or registration in this state;

(2) Can demonstrate competency in the occupation through methods as determined by the board, such as having completed continuing education units or having had recent experience for at least two of the five years preceding the date of the application under this section;

(3) Has not committed any act in any jurisdiction that would have constituted grounds for refusal, suspension, or revocation of a license to practice that occupation in this state at the time the act was committed; and

(4) Is in good standing; has not been disciplined by the agency that had jurisdiction to issue the license, certification, or permit; and has no pending complaints.

(b) No later than 15 days following receipt of an application from a spouse the board shall either issue a license, certification, registration, or notify an applicant when the applicant's training or experience does not satisfy the requirements for licensure, certification, or registration and specify the criteria or requirements that the board determined that the applicant failed to meet and the basis for that determination. If an applicant who is a military spouse has a pending complaint under §30-1B-(a)(4), the board shall notify the applicant no later than 15 days following the board receiving written notice of the disposition of the pending complaint.

(c) All relevant experience of a military spouse, including full-time and part-time experience, regardless of whether in a paid or volunteer capacity, shall be credited in the calculation of years of practice in an occupation as required under subsection (a) of this section.

(d) A nonresident licensed, certified, or registered under this section is entitled to the same rights and subject to the same obligations as required of a resident licensed, certified, or registered by all boards referred to in this chapter.

(e) Nothing in this section may be construed to apply to the practice of law under article §30-2-1 et seq. of this code, the practice of medicine under article § 30-3-1 et. seq. of this code, or the practice of osteopathic medicine under article § 30-14-1 et seq. of this code.

(f) Nothing in this section may be construed to prohibit a spouse from proceeding under the existing licensure, certification, or registration requirements established by a board referred to in this chapter.

(g) A board may not charge a military spouse an initial application fee for a license, certification, registration, or temporary practice permit issued pursuant to this section: Provided, That nothing in this subsection may be construed to prohibit a board from charging its ordinary fee for a renewal application or prohibit a third party from charging actual costs for a service such as a background check.

§30-1B-4. Temporary licensure.

All boards referred to in this chapter shall issue a temporary practice permit to a military-trained applicant or military spouse licensed, certified, or registered in another jurisdiction while the military-trained applicant or military spouse is satisfying the requirements for licensure under sections two and three of this section no later than 15 days following receipt of an application; if that jurisdiction has licensure, certification, or registration standards substantially equivalent to the standards for licensure, certification, or registration of a board in this state. The temporary practice permit shall be issued using the same information as provided by the applicant in the licensure application and remain valid for the later of one year or the required renewal date for the occupation the temporary practice permit was issued for or until a license, certification, or registration is granted by the board. A temporary practice permit may be denied or revoked for a pending complaint after notice is provided to the military-trained applicant or military spouse as set forth under §30-1B-2(a)(3), §30-1B-3(a)(3), or §30-1B-3(a)(4) of this article.

§30-1B-5. Temporary licensure, certification or registration of spouses of persons on military active duty; waiver of certain license, certification or registration fees.

[Repealed.]

§30-1B-6. Rule-making authority.

The Boards referred to in this chapter may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article. Proposed rules may:

(1) Establish criteria or requirements for military education, training and experience that qualify the applicant to take an examination for licensure, certification or registration or for a waiver of any examination requirement to be licensed, certified or registered; and

(2) Implement the provisions of this article while ensuring competency, protecting the citizens of this state from harm, and addressing issues specific to each profession.

§30-1B-7. Data Collection.

[Repealed.]

§30-1B-8. Applicability.

The provisions of this article do not apply to the boards referred to in this chapter whose license, certification, or registration requirements are subject to the provisions of article twenty-four of this chapter.

§30-1B-9. Liberality of construction.

This article shall be liberally construed and applied to promote the public interest.

§30-1C-1. Purpose.

In order to strengthen access to health care, and in recognition of the advances in the delivery of health care, the member states of the Interstate Medical Licensure Compact have allied in common purpose to develop a comprehensive process that complements the existing licensing and regulatory authority of state medical boards, provides a streamlined process that allows physicians to become licensed in multiple states, thereby enhancing the portability of a medical license and ensuring the safety of patients. The Compact creates another pathway for licensure and does not otherwise change a state's existing medical practice statutes. The Compact also adopts the prevailing standard for licensure and affirms that the practice of medicine occurs where the patient is located at the time of the physician-patient encounter, and therefore, requires the physician to be under the jurisdiction of the state medical board where the patient is located.

State medical boards that participate in the Compact retain the jurisdiction to impose an adverse action against a license to practice medicine in that state issued to a physician through the procedures in the Compact.

§30-1C-2. Definitions.

In this article adopting the Interstate Medical Licensure Compact:

(a) "Bylaws" means those bylaws established by the Interstate Commission pursuant to section eleven of this article for its governance, or for directing and controlling its actions and conduct.

(b) "Commissioner" means the voting representative appointed by each member board pursuant to section eleven of this article.

(c) "Compact" means the Interstate Medical Licensure Compact.

(d) "Conviction" means a finding by a court that an individual is guilty of a criminal offense through adjudication, or entry of a plea of guilt or no contest to the charge by the offender. Evidence of an entry of a conviction of a criminal offense by the court shall be considered final for purposes of disciplinary action by a member board.

(e) "Expedited License" means a full and unrestricted medical license granted by a member state to an eligible physician through the process set forth in the Compact.

(f) "Interstate Commission" means the Interstate Medical Licensure Compact Commission created pursuant to section eleven of this article.

(g) "License" means authorization by a state for a physician to engage in the practice of medicine, which would be unlawful without the authorization.

(h) "Medical Practice Act" means laws and regulations governing the practice of allopathic and osteopathic medicine within a member state.

(i) "Member Board" means a state agency in a member state that acts in the sovereign interests of the state by protecting the public through licensure, regulation, and education of physicians as directed by the state government.

(j) "Member State" means a state that has enacted the Compact.

(k) "Practice of Medicine" means the clinical prevention, diagnosis, or treatment of human disease, injury, or condition requiring a physician to obtain and maintain a license in compliance with the Medical Practice Act of a member state.

(l) "Physician" means any person who:

(1) Is a graduate of a medical school accredited by the Liaison Committee on Medical Education, the Commission on Osteopathic College Accreditation, or a medical school listed in the International Medical Education Directory or its equivalent;

(2) Passed each component of the United States Medical Licensing Examination (USMLE) or the Comprehensive Osteopathic Medical Licensing Examination (COMLEX-USA) within three attempts, or any of its predecessor examinations accepted by a state medical board as an equivalent examination for licensure purposes;

(3) Successfully completed graduate medical education approved by the Accreditation Council for Graduate Medical Education or the American Osteopathic Association;

(4) Holds specialty certification or a time-unlimited specialty certificate recognized by the American Board of Medical Specialties or the American Osteopathic Association's Bureau of Osteopathic Specialists;

(5) Possesses a full and unrestricted license to engage in the practice of medicine issued by a member board;

(6) Has never been convicted, received adjudication, deferred adjudication, community supervision, or deferred disposition for any offense by a court of appropriate jurisdiction;

(7) Has never held a license authorizing the practice of medicine subjected to discipline by a licensing agency in any state, federal, or foreign jurisdiction, excluding any action related to nonpayment of fees related to a license;

(8) Has never had a controlled substance license or permit suspended or revoked by a state or the United States Drug Enforcement Administration; and

(9) Is not under active investigation by a licensing agency or law-enforcement authority in any state, federal, or foreign jurisdiction.

(m) "Offense" means a felony, gross misdemeanor, or crime of moral turpitude.

(n) "Rule" means a written statement by the Interstate Commission promulgated pursuant to section twelve of this article that is of general applicability, implements, interprets, or prescribes a policy or provision of the Compact, or an organizational, procedural, or practice requirement of the Interstate Commission, and has the force and effect of statutory law in a member state, and includes the amendment, repeal, or suspension of an existing rule.

(o) "State" means any state, commonwealth, district, or territory of the United States.

(p) "State of Principal License" means a member state where a physician holds a license to practice medicine and which has been designated as such by the physician for purposes of registration and participation in the Compact.

§30-1C-3. Eligibility.

(a) A physician must meet the eligibility requirements as defined in section two, subsection (l) of this article to receive an expedited license under the terms and provisions of the Compact.

(b) A physician who does not meet the requirements of section two of this article may obtain a license to practice medicine in a member state if the individual complies with all laws and requirements, other than the Compact, relating to the issuance of a license to practice medicine in that state.

§30-1C-4. Designation of state of principal license.

(a) A physician shall designate a member state as the state of principal license for purposes of registration for expedited licensure through the Compact if the physician possesses a full and unrestricted license to practice medicine in that state, and the state is:

(1) The state of primary residence for the physician;

(2) The state where at least twenty-five percent of the practice of medicine occurs; or

(3) The location of the physician's employer; or

(4) If no state qualifies under subdivision (1), (2), or (3) of this subsection, the state designated as state of residence for purpose of federal income tax.

(b) A physician may redesignate a member state as state of principal license at any time, as long as the state meets the requirements in subsection (a) of this section.

(c) The Interstate Commission is authorized to develop rules to facilitate redesignation of another member state as the state of principal license.

§30-1C-5. Application and issuance of expedited licensure.

(a) A physician seeking licensure through the Compact shall file an application for an expedited license with the member board of the state selected by the physician as the state of principal license.

(b) Upon receipt of an application for an expedited license, the member board within the state selected as the state of principal license shall evaluate whether the physician is eligible for expedited licensure and issue a letter of qualification, verifying or denying the physician's eligibility, to the Interstate Commission.

(1) Static qualifications, which include verification of medical education, graduate medical education, results of any medical or licensing examination, and other qualifications as determined by the Interstate Commission through rule, shall not be subject to additional primary source verification where already primary source verified by the state of principal license.

(2) The member board within the state selected as the state of principal license shall, in the course of verifying eligibility, perform a criminal background check of an applicant, including the use of the results of fingerprint or other biometric data checks compliant with the requirements of the Federal Bureau of Investigation, with the exception of federal employees who have suitability determination in accordance with 5 C.F.R. §731.202.

(3) Appeal on the determination of eligibility shall be made to the member state where the application was filed and shall be subject to the law of that state.

(c) Upon verification in subsection (b) of this section, physicians eligible for an expedited license shall complete the registration process established by the Interstate Commission to receive a license in a member state selected pursuant to subsection (a) of this section, including the payment of any applicable fees.

(d) After receiving verification of eligibility under subsection (b) of this section and any fees under subsection (c) of this section, a member board shall issue an expedited license to the physician. This license shall authorize the physician to practice medicine in the issuing state consistent with the Medical Practice Act and all applicable laws and regulations of the issuing member board and member state.

(e) An expedited license shall be valid for a period consistent with the licensure period in the member state and in the same manner as required for other physicians holding a full and unrestricted license within the member state.

(f) An expedited license obtained though the Compact shall be terminated if a physician fails to maintain a license in the state of principal licensure for a nondisciplinary reason, without redesignation of a new state of principal licensure.

(g) The Interstate Commission is authorized to develop rules regarding the application process, including payment of any applicable fees, and the issuance of an expedited license.

§30-1C-6. Fees for expedited licensure.

(a) A member state issuing an expedited license authorizing the practice of medicine in that state may impose a fee for a license issued or renewed through the Compact.

(b) The Interstate Commission is authorized to develop rules regarding fees for expedited licenses.

§30-1C-7. Renewal and continued participation.

(a) A physician seeking to renew an expedited license granted in a member state shall complete a renewal process with the Interstate Commission if the physician:

(1) Maintains a full and unrestricted license in a state of principal license;

(2) Has not been convicted, received adjudication, deferred adjudication, community supervision, or deferred disposition for any offense by a court of appropriate jurisdiction;

(3) Has not had a license authorizing the practice of medicine subject to discipline by a licensing agency in any state, federal, or foreign jurisdiction, excluding any action related to nonpayment of fees related to a license; and

(4) Has not had a controlled substance license or permit suspended or revoked by a state or the United States Drug Enforcement Administration.

(b) Physicians shall comply with all continuing professional development or continuing medical education requirements for renewal of a license issued by a member state.

(c) The Interstate Commission shall collect any renewal fees charged for the renewal of a license and distribute the fees to the applicable member board.

(d) Upon receipt of any renewal fees collected in subsection (c) of this section, a member board shall renew the physician's license.

(e) Physician information collected by the Interstate Commission during the renewal process will be distributed to all member boards.

(f) The Interstate Commission is authorized to develop rules to address renewal of licenses obtained through the Compact.

§30-1C-8. Coordinated information system.

(a) The Interstate Commission shall establish a database of all physicians licensed, or who have applied for licensure, under section five of this article.

(b) Notwithstanding any other provision of law, member boards shall report to the Interstate Commission any public action or complaints against a licensed physician who has applied or received an expedited license through the Compact.

(c) Member boards shall report disciplinary or investigatory information determined as necessary and proper by rule of the Interstate Commission.

(d) Member boards may report any nonpublic complaint, disciplinary, or investigatory information not required by subsection (c) of this section to the Interstate Commission.

(e) Member boards shall share complaint or disciplinary information about a physician upon request of another member board.

(f) All information provided to the Interstate Commission or distributed by member boards shall be confidential, filed under seal, and used only for investigatory or disciplinary matters.

(g) The Interstate Commission is authorized to develop rules for mandated or discretionary sharing of information by member boards.

§30-1C-9. Joint investigations.

(a) Licensure and disciplinary records of physicians are deemed investigative.

(b) In addition to the authority granted to a member board by its respective Medical Practice Act or other applicable state law, a member board may participate with other member boards in joint investigations of physicians licensed by the member boards.

(c) A subpoena issued by a member state shall be enforceable in other member states.

(d) Member boards may share any investigative, litigation, or compliance materials in furtherance of any joint or individual investigation initiated under the Compact.

(e) Any member state may investigate actual or alleged violations of the statutes authorizing the practice of medicine in any other member state in which a physician holds a license to practice medicine.

§30-1C-10. Disciplinary actions.

(a) Any disciplinary action taken by any member board against a physician licensed through the Compact shall be deemed unprofessional conduct which may be subject to discipline by other member boards, in addition to any violation of the Medical Practice Act or regulations in that state.

(b) If a license granted to a physician by the member board in the state of principal license is revoked, surrendered or relinquished in lieu of discipline, or suspended, then all licenses issued to the physician by member boards shall automatically be placed, without further action necessary by any member board, on the same status. If the member board in the state of principal license subsequently reinstates the physician's license, a licensed issued to the physician by any other member board shall remain encumbered until that respective member board takes action to reinstate the license in a manner consistent with the Medical Practice Act of that state.

(c) If disciplinary action is taken against a physician by a member board not in the state of principal license, any other member board may deem the action conclusive as to matter of law and fact decided, and:

(i) Impose the same or lesser sanction(s) against the physician so long as such sanctions are consistent with the Medical Practice Act of that state; or

(ii) Pursue separate disciplinary action against the physician under its respective Medical Practice Act, regardless of the action taken in other member states.

(d) If a license granted to a physician by a member board is revoked, surrendered or relinquished in lieu of discipline, or suspended, then any licenses issued to the physician by any other member boards shall be suspended, automatically and immediately without further action necessary by the other member boards, for ninety days upon entry of the order by the disciplining board, to permit the member boards to investigate the basis for the action under the Medical Practice Act of that state. A member board may terminate the automatic suspension of the license it issued prior to the completion of the ninety day suspension period in a manner consistent with the Medical Practice Act of that state.

§30-1C-11. Interstate Medical Licensure Compact Commission.

(a) The member states hereby create the "Interstate Medical Licensure Compact Commission".

(b) The purpose of the Interstate Commission is the administration of the Interstate Medical Licensure Compact, which is a discretionary state function.

(c) The Interstate Commission shall be a body corporate and joint agency of the member states and shall have all the responsibilities, powers, and duties set forth in the Compact, and such additional powers as may be conferred upon it by a subsequent concurrent action of the respective Legislatures of the member states in accordance with the terms of the Compact.

(d) The Interstate Commission shall consist of two voting representatives appointed by each member state who shall serve as Commissioners. In states where allopathic and osteopathic physicians are regulated by separate member boards, or if the licensing and disciplinary authority is split between multiple member boards within a member state, the member state shall appoint one representative from each member board. A Commissioner shall be an:

(1) Allopathic or osteopathic physician appointed to a member board;

(2) Executive director, executive secretary, or similar executive of a member board; or

(3) Member of the public appointed to a member board.

(e) The Interstate Commission shall meet at least once each calendar year. A portion of this meeting shall be a business meeting to address such matters as may properly come before the Commission, including the election of officers. The chairperson may call additional meetings and shall call for a meeting upon the request of a majority of the member states.

(f) The bylaws may provide for meetings of the Interstate Commission to be conducted by telecommunication or electronic communication.

(g) Each Commissioner participating at a meeting of the Interstate Commission is entitled to one vote. A majority of Commissioners shall constitute a quorum for the transaction of business, unless a larger quorum is required by the bylaws of the Interstate Commission. A Commissioner shall not delegate a vote to another Commissioner. In the absence of its Commissioner, a member state may delegate voting authority for a specified meeting to another person from that state who shall meet the requirements of subsection (d) of this section.

(h) The Interstate Commission shall provide public notice of all meetings and all meetings shall be open to the public. The Interstate Commission may close a meeting, in full or in portion, where it determines by a two-thirds vote of the Commissioners present that an open meeting would be likely to:

(1) Relate solely to the internal personnel practices and procedures of the Interstate Commission;

(2) Discuss matters specifically exempted from disclosure by federal statute;

(3) Discuss trade secrets, commercial, or financial information that is privileged or confidential;

(4) Involve accusing a person of a crime, or formally censuring a person;

(5) Discuss information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;

(6) Discuss investigative records compiled for law-enforcement purposes; or

(7) Specifically relate to the participation in a civil action or other legal proceeding.

(i) The Interstate Commission shall keep minutes which shall fully describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, including record of any roll call votes.

(j) The Interstate Commission shall make its information and official records, to the extent not otherwise designated in the Compact or by its rules, available to the public for inspection.

(k) The Interstate Commission shall establish an executive committee, which shall include officers, members, and others as determined by the bylaws. The executive committee shall have the power to act on behalf of the Interstate Commission, with the exception of rulemaking, during periods when the Interstate Commission is not in session. When acting on behalf of the Interstate Commission, the executive committee shall oversee the administration of the Compact including enforcement and compliance with the provisions of the Compact, its bylaws and rules, and other such duties as necessary.

(l) The Interstate Commission may establish other committees for governance and administration of the Compact.

§30-1C-12. Powers and duties of the Interstate Commission.

The Interstate Commission shall have the duty and power to:

(1) Oversee and maintain the administration of the Compact;

(2) Promulgate rules which shall be binding to the extent and in the manner provided for in the Compact;

(3) Issue, upon the request of a member state or member board, advisory opinions concerning the meaning or interpretation of the Compact, its bylaws, rules, and actions;

(4) Enforce compliance with Compact provisions, the rules promulgated by the Interstate Commission, and the bylaws, using all necessary and proper means, including, but not limited to, the use of judicial process;

(5) Establish and appoint committees including, but not limited to, an executive committee as required by section eleven of this article, which shall have the power to act on behalf of the Interstate Commission in carrying out its powers and duties;

(6) Pay, or provide for the payment of the expenses related to the establishment, organization, and ongoing activities of the Interstate Commission;

(7) Establish and maintain one or more offices;

(8) Borrow, accept, hire, or contract for services of personnel;

(9) Purchase and maintain insurance and bonds;

(10) Employ an executive director who shall have such powers to employ, select or appoint employees, agents, or consultants, and to determine their qualifications, define their duties, and fix their compensation;

(11) Establish personnel policies and programs relating to conflicts of interest, rates of compensation, and qualifications of personnel;

(12) Accept donations and grants of money, equipment, supplies, materials and services, and to receive, utilize, and dispose of it in a manner consistent with the conflict of interest policies established by the Interstate Commission;

(13) Lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve or use, any property, real, personal, or mixed;

(14) Sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal, or mixed;

(15) Establish a budget and make expenditures;

(16) Adopt a seal and bylaws governing the management and operation of the Interstate Commission;

(17) Report annually to the Legislatures and Governors of the member states concerning the activities of the Interstate Commission during the preceding year. Such reports shall also include reports of financial audits and any recommendations that may have been adopted by the Interstate Commission;

(18) Coordinate education, training, and public awareness regarding the Compact, its implementation, and its operation;

(19) Maintain records in accordance with the bylaws;

(20) Seek and obtain trademarks, copyrights, and patents; and

(21) Perform such functions as may be necessary or appropriate to achieve the purposes of the Compact.

§30-1C-13. Finance powers.

(a) The Interstate Commission may levy on and collect an annual assessment from each member state to cover the cost of the operations and activities of the Interstate Commission and its staff. The total assessment must be sufficient to cover the annual budget approved each year for which revenue is not provided by other sources. The aggregate annual assessment amount shall be allocated upon a formula to be determined by the Interstate Commission, which shall promulgate a rule binding upon all member states.

(b) The Interstate Commission shall not incur obligations of any kind prior to securing the funds adequate to meet the same.

(c) The Interstate Commission shall not pledge the credit of any of the member states, except by, and with the authority of, the member state.

(d) The Interstate Commission shall be subject to a yearly financial audit conducted by a certified or licensed public accountant and the report of the audit shall be included in the annual report of the Interstate Commission.

§30-1C-14. Organization and operation of the Interstate Commission.

(a) The Interstate Commission shall, by a majority of Commissioners present and voting, adopt bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of the Compact within twelve months of the first Interstate Commission meeting.

(b) The Interstate Commission shall elect or appoint annually from among its Commissioners a chairperson, a vice-chairperson, and a treasurer, each of whom shall have such authority and duties as may be specified in the bylaws. The chairperson, or in the chairperson's absence or disability, the vice-chairperson, shall preside at all meetings of the Interstate Commission.

(c) Officers selected in subsection (b) of this section shall serve without remuneration from the Interstate Commission.

(d) The officers and employees of the Interstate Commission shall be immune from suit and liability, either personally or in their official capacity, for a claim for damage to or loss of property or personal injury or other civil liability caused or arising out of, or relating to, an actual or alleged act, error, or omission that occurred, or that such person had a reasonable basis for believing occurred, within the scope of Interstate Commission employment, duties, or responsibilities; provided that such person shall not be protected from suit or liability for damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of such person.

(1) The liability of the executive director and employees of the Interstate Commission or representatives of the Interstate Commission, acting within the scope of such person's employment or duties for acts, errors, or omissions occurring within such person's state, may not exceed the limits of liability set forth under the Constitution and laws of that state for state officials, employees, and agents. The Interstate Commission is considered to be an instrumentality of the states for the purposes of any such action. Nothing in this subsection may be construed to protect such person from suit or liability for damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of such person.

(2) The Interstate Commission shall defend the executive director, its employees, and subject to the approval of the Attorney General or other appropriate legal counsel of the member state represented by an Interstate Commission representative, shall defend such Interstate Commission representative in any civil action seeking to impose liability arising out of an actual or alleged act, error or omission that occurred within the scope of Interstate Commission employment, duties or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such person.

(3) To the extent not covered by the state involved, member state, or the Interstate Commission, the representatives or employees of the Interstate Commission shall be held harmless in the amount of a settlement or judgment, including attorney's fees and costs, obtained against such persons arising out of an actual or alleged act, error, or omission that occurred within the scope of Interstate Commission employment, duties, or responsibilities, or that such persons had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such persons.

§30-1C-15. Rule making functions of the Interstate Commission.

(a) The Interstate Commission shall promulgate reasonable rules in order to effectively and efficiently achieve the purposes of the Compact. Notwithstanding the foregoing, in the event the Interstate Commission exercises its rulemaking authority in a manner that is beyond the scope of the purposes of the Compact, or the powers granted hereunder, then such an action by the Interstate Commission shall be invalid and have no force or effect.

(b) Rules deemed appropriate for the operations of the Interstate Commission shall be made pursuant to a rulemaking process that substantially conforms to the "Model State Administrative Procedure Act" of 2010, and subsequent amendments thereto.

(c) Not later than thirty days after a rule is promulgated, any person may file a petition for judicial review of the rule in the United States District Court for the District of Columbia or the federal district where the Interstate Commission has its principal offices, provided that the filing of such a petition shall not stay or otherwise prevent the rule from becoming effective unless the court finds that the petitioner has a substantial likelihood of success. The court shall give deference to the actions of the Interstate Commission consistent with applicable law and shall not find the rule to be unlawful if the rule represents a reasonable exercise of the authority granted to the Interstate Commission.

§30-1C-16. Oversight of Interstate Compact.

(a) The executive, legislative, and judicial branches of state government in each member state shall enforce the Compact and shall take all actions necessary and appropriate to effectuate the Compact's purposes and intent. The provisions of the Compact and the rules promulgated hereunder shall have standing as statutory law but shall not override existing state authority to regulate the practice of medicine.

(b) All courts shall take judicial notice of the Compact and the rules in any judicial or administrative proceeding in a member state pertaining to the subject matter of the Compact which may affect the powers, responsibilities or actions of the Interstate Commission.

(c) The Interstate Commission shall be entitled to receive all service of process in any such proceeding, and shall have standing to intervene in the proceeding for all purposes. Failure to provide service of process to the Interstate Commission shall render a judgment or order void as to the Interstate Commission, the Compact, or promulgated rules.

§30-1C-17. Enforcement of Interstate Compact.

(a) The Interstate Commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of the Compact.

(b) The Interstate Commission may, by majority vote of the Commissioners, initiate legal action in the United States District Court for the District of Columbia, or, at the discretion of the Interstate Commission, in the federal district where the Interstate Commission has its principal offices, to enforce compliance with the provisions of the Compact, and its promulgated rules and bylaws, against a member state in default. The relief sought may include both injunctive relief and damages. In the event judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation including reasonable attorney's fees.

(c) The remedies herein shall not be the exclusive remedies of the Interstate Commission. The Interstate Commission may avail itself of any other remedies available under state law or the regulation of a profession.

§30-1C-18. Default procedures.

(a) The grounds for default include, but are not limited to, failure of a member state to perform such obligations or responsibilities imposed upon it by the Compact, or the rules and bylaws of the Interstate Commission promulgated under the Compact.

(b) If the Interstate Commission determines that a member state has defaulted in the performance of its obligations or responsibilities under the Compact, or the bylaws or promulgated rules, the Interstate Commission shall:

(1) Provide written notice to the defaulting state and other member states, of the nature of the default, the means of curing the default, and any action taken by the Interstate Commission. The Interstate Commission shall specify the conditions by which the defaulting state must cure its default; and

(2) Provide remedial training and specific technical assistance regarding the default.

(c) If the defaulting state fails to cure the default, the defaulting state shall be terminated from the Compact upon an affirmative vote of a majority of the Commissioners and all rights, privileges, and benefits conferred by the Compact shall terminate on the effective date of termination. A cure of the default does not relieve the offending state of obligations or liabilities incurred during the period of the default.

(d) Termination of membership in the Compact shall be imposed only after all other means of securing compliance have been exhausted. Notice of intent to terminate shall be given by the Interstate Commission to the Governor, the majority and minority leaders of the defaulting state's Legislature, and each of the member states.

(e) The Interstate Commission shall establish rules and procedures to address licenses and physicians that are materially impacted by the termination of a member state, or the withdrawal of a member state.

(f) The member state which has been terminated is responsible for all dues, obligations, and liabilities incurred through the effective date of termination including obligations, the performance of which extends beyond the effective date of termination.

(g) The Interstate Commission shall not bear any costs relating to any state that has been found to be in default or which has been terminated from the Compact, unless otherwise mutually agreed upon in writing between the Interstate Commission and the defaulting state.

(h) The defaulting state may appeal the action of the Interstate Commission by petitioning the United States District Court for the District of Columbia or the federal district where the Interstate Commission has its principal offices. The prevailing party shall be awarded all costs of such litigation including reasonable attorney's fees.

§30-1C-19. Dispute resolution.

(a) The Interstate Commission shall attempt, upon the request of a member state, to resolve disputes which are subject to the Compact and which may arise among member states or member boards.

(b) The Interstate Commission shall promulgate rules providing for both mediation and binding dispute resolution as appropriate.

§30-1C-20. Member states, effective date and amendment.

(a) Any state is eligible to become a member state of the Compact.

(b) The Compact shall become effective and binding upon legislative enactment of the Compact into law by no less than seven states. Thereafter, it shall become effective and binding on a state upon enactment of the Compact into law by that state.

(c) The governors of nonmember states, or their designees, shall be invited to participate in the activities of the Interstate Commission on a nonvoting basis prior to adoption of the Compact by all states.

(d) The Interstate Commission may propose amendments to the Compact for enactment by the member states. No amendment shall become effective and binding upon the Interstate Commission and the member states unless and until it is enacted into law by unanimous consent of the member states.

§30-1C-21. Withdrawal.

(a) Once effective, the Compact shall continue in force and remain binding upon each and every member state; provided that a member state may withdraw from the Compact by specifically repealing the statute which enacted the Compact into law.

(b) Withdrawal from the Compact shall be by the enactment of a statute repealing the same, but shall not take effect until one year after the effective date of such statute and until written notice of the withdrawal has been given by the withdrawing state to the governor of each other member state.

(c) The withdrawing state shall immediately notify the chairperson of the Interstate Commission in writing upon the introduction of legislation repealing the Compact in the withdrawing state.

(d) The Interstate Commission shall notify the other member states of the withdrawing state's intent to withdraw within sixty days of its receipt of notice provided under subsection (c) of this section.

(e) The withdrawing state is responsible for all dues, obligations and liabilities incurred through the effective date of withdrawal, including obligations, the performance of which extend beyond the effective date of withdrawal.

(f) Reinstatement following withdrawal of a member state shall occur upon the withdrawing state reenacting the Compact or upon such later date as determined by the Interstate Commission.

(g) The Interstate Commission is authorized to develop rules to address the impact of the withdrawal of a member state on licenses granted in other member states to physicians who designated the withdrawing member state as the state of principal license.

§30-1C-22. Dissolution.

(a) The Compact shall dissolve effective upon the date of the withdrawal or default of the member state which reduces the membership in the Compact to one member state.

(b) Upon the dissolution of the Compact, the Compact becomes null and void and shall be of no further force or effect, and the business and affairs of the Interstate Commission shall be concluded and surplus funds shall be distributed in accordance with the bylaws.

§30-1C-23. Severability and construction.

(a) The provisions of the Compact shall be severable, and if any phrase, clause, sentence, or provision is deemed unenforceable, the remaining provisions of the Compact shall be enforceable.

(b) The provisions of the Compact shall be liberally construed to effectuate its purposes.

(c) Nothing in the Compact shall be construed to prohibit the applicability of other interstate compacts to which the states are members.

§30-1C-24. Binding effect of Compact and other laws.

(a) Nothing herein prevents the enforcement of any other law of a member state that is not inconsistent with the Compact.

(b) All laws in a member state in conflict with the Compact are superseded to the extent of the conflict.

(c) All lawful actions of the Interstate Commission, including all rules and bylaws promulgated by the Commission, are binding upon the member states.

(d) All agreements between the Interstate Commission and the member states are binding in accordance with their terms.

(e) In the event any provision of the Compact exceeds the Constitutional limits imposed on the Legislature of any member state, such provision shall be ineffective to the extent of the conflict with the Constitutional provision in question in that member state.

§30-1D-1.  Criminal background checks required of new applicants.

(a) This article shall be known as “Lynette’s Law.”

(b) The requirements in subsection (c) of this section for criminal background checks apply to those persons applying to be licensed in West Virginia for the first time by the boards governing licensing under the following sections:  Section ten, article three of this chapter; section four, article three-e of this chapter; section eight, article four of this chapter; section nine, article five of this chapter; section six, article seven of this chapter; section three, article seven-a of this chapter; section eight, article eight of this chapter; section eight, article ten of this chapter; section four, article fourteen of this chapter; and section seven, article twenty-one of this chapter.

(c) A person applying for licensing to a board listed in subsection (b) of this section must submit to a state and national criminal history record check, as set forth in this subsection: Provided, That an applicant for a license who is an attorney at law may submit a letter of good standing from the Clerk of the Supreme Court of Appeals of West Virginia in lieu of submitting to a state and national criminal history record check.

(1) This requirement is found not to be against public policy.

(2) The criminal history record check shall be based on fingerprints submitted to the West Virginia State Police or its assigned agent for forwarding to the Federal Bureau of Investigation.

(3) The applicant shall meet all requirements necessary to accomplish the state and national criminal history record check, including:

(A) Submitting fingerprints for the purposes set forth in this subsection; and

(B) Authorizing the board, the West Virginia State Police and the Federal Bureau of Investigation to use all records submitted and produced for the purpose of screening the applicant for a license.

(4) The results of the state and national criminal history record check may not be released to or by a private entity except:

(A) To the individual who is the subject of the criminal history record check;

(B) With the written authorization of the individual who is the subject of the criminal history record check; or

(C) Pursuant to a court order.

(5) The criminal history record check and related records are not public records for the purposes of chapter twenty-nine-b of this code.

(6) The applicant shall pay the actual costs of the fingerprinting and criminal history record check.

(d) Before implementing the provisions of this subsection, the board shall propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code.  The rules shall set forth the requirements and procedures for the criminal history check and must be consistent with standards established by the Federal Bureau of Investigation and the National Crime Prevention and Privacy Compact as authorized by 42 U. S. C. A. §14611, et seq.

§30-2-1. Certificate of good moral character; examination of applicants for license; licenses.

Any person desiring to obtain a license to practice law in the courts of this state shall appear before the circuit court of the county in which he has resided for the last preceding year and prove to the satisfaction of the court, or to the satisfaction of a committee of three attorneys practicing before the court, appointed by the court, that he is a person of good moral character, that he is eighteen years of age, and that he has resided in such county for one year next preceding the date of his appearance; and upon the presentation of such proof, the court shall enter an order on its record accordingly. The Supreme Court of Appeals shall prescribe and publish rules and regulations for the examination of all applicants for admission to practice law, which shall include the period of study and degree of preparation required of applicants previous to being admitted, as well as the method of examinations, whether by the court or otherwise. And the Supreme Court of Appeals may, upon the production of a duly certified copy of the order of the circuit court, hereinbefore mentioned, and upon being satisfied that the applicant has shown, upon an examination conducted in accordance with such rules and regulations, that he is qualified to practice law in the courts of this state, and upon being further satisfied that such rules and regulations have been complied with in all respects, grant such applicant a license to practice law in the courts of this state, and such license shall show upon its face that all the provisions of this section and of the said rules have been complied with: Provided, That any person who shall produce a duly certified copy of such order of the circuit court, and also a diploma of graduation from the college of law of West Virginia University reflecting a date of graduation prior to July 1, 1983, shall, upon presentation thereof in any of the courts of this state, be entitled to practice in any and all courts of this state, and the order so admitting him shall state the facts pertaining to the same.

§30-2-2. Attorneys from other jurisdictions.

Any person duly authorized to practice as an attorney at law in any jurisdiction other than this state may be admitted to practice as such in the courts of this state, as a visiting attorney, or as a resident attorney, upon first complying with the rules and regulations applicable thereto prescribed by the Supreme Court of Appeals of West Virginia, without being required to take the bar examinations of this state, if the other jurisdiction in which such person is already authorized to practice allows attorneys of this state to be admitted to the bar or to practice law in such jurisdiction without making it one of the necessary requirements that attorneys of this state take the bar examinations of such jurisdiction. The Supreme Court of Appeals of West Virginia shall prescribe specific rules and regulations dealing with the admission of such person from another jurisdiction to practice law in this state either as a visiting attorney or as a resident attorney; and no person from another jurisdiction shall be permitted to practice in the courts of this state in either classification until he has complied with the rules and regulations pertaining to such classification established by the Supreme Court of Appeals. Nothing herein contained shall affect the right or status of attorneys admitted to practice in this state prior to the enactment of this section.

§30-2-3. Oath.

Every attorney at law shall take the following oath before each court in which he proposes to practice, that is to say: If he be a resident of this state, an oath that he will support the Constitution of the United States and the Constitution of the State of West Virginia, honestly demean himself in the practice of the law, and to the best of his ability execute his office of attorney at law; if he be not a resident of this state, an oath that he will support the Constitution of the United States, honestly demean himself in the practice of the law, and to the best of his ability execute his office of attorney at law.

§30-2-4. Practice without license or oath; penalty; qualification after institution of suits.

(a) It is unlawful for any person to practice or appear as an attorney-at-law for another in a court  in this state or to make it a business to solicit employment for any attorney, or to hold himself or herself out to the public or any member thereof as being entitled to practice law, or in any other manner to assume, use or advertise the title of lawyer, attorney and counselor-at-law,   attorney and counselor or equivalent terms in any language, in such manner as to convey the impression that he or she is a legal practitioner of law, or in any manner to advertise that he or she, either alone or together with other persons, has, owns, conducts or maintains a law office, without first having been duly and regularly licensed and admitted to practice law in  the courts of this state, and without having subscribed and taken the oath required by the  provisions of section three of this article.

(b) Any person violating the provisions of subsection (a) of this section  is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $5,000, or confined in jail not more than ninety days, or both fined and confined, and on any subsequent offense, is guilty of a misdemeanor and shall be fined not more than $10,000, or confined in jail not more than one year, or both fined and confined:  Provided, That nothing herein prohibits a lawyer from advertising services or hiring a person to assist in advertising services as permitted by the Rules of Professional Conduct.

§30-2-5. Practice by corporations or voluntary associations; penalties; limitations of section.

Except as provided by section five-a of this article, it shall be unlawful for any corporation or voluntary association to practice or appear as an attorney at law for any person in any court of this state or before any judicial body, or to hold itself out to the public as being entitled to practice law, or to render or furnish legal services or advice, or to furnish an attorney or counsel to render legal services of any kind in actions or proceedings of any nature, or in any other manner to assume to be entitled to practice law, or assume, use or advertise the title of lawyer in such manner as to convey the impression that it is entitled to practice law or to furnish legal advice, services or counsel, or to advertise that, either alone or together with or by or through any person, whether a duly and regularly admitted attorney at law or not, it has, owns, conducts or maintains a law office for the practice of law, or for furnishing legal advice, services or counsel. It shall be unlawful further for any corporation or voluntary association to solicit, itself or by or through its officers, agents or employees, any claim or demand for the purpose of bringing an action thereon, or of settling the estate of any insolvent debtor, or of representing as attorney at law, or of furnishing legal advice, services or counsel to, a person sued or about to be sued in any action or proceeding, or against whom an action or proceeding has been or is about to be brought, or who may be affected by any action or proceeding which has or may be instituted in any court or before any judicial body, or for the purpose of so representing any person in the pursuit of any civil or criminal remedy. Any corporation or voluntary association violating the provisions of this section, or any officer, trustee, director, agent or employee of such corporation or voluntary association who directly or indirectly engages in any of the acts herein prohibited, or assists such corporation or voluntary association to do such prohibited acts, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $1,000. The fact that any such officer, trustee, director, agent or employee shall be a duly and regularly admitted attorney at law shall not be held to permit or allow any such corporation or voluntary association to do the acts prohibited herein, nor shall such fact be a defense upon the trial of any of the persons mentioned herein for a violation of the provisions of this section.

This section shall not apply to a partnership composed of licensed attorneys, or to a corporation or voluntary association lawfully engaged in examining and insuring the titles to real property, nor shall it prohibit a corporation or voluntary association from employing an attorney or attorneys in and about its own immediate affairs or in any litigation to which it is or may be a party, nor shall it apply to organizations organized for benevolent or charitable purposes, or for the purpose of assisting persons without means in the pursuit of any civil remedy.

§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 $50 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.

§30-2-6. Annulment or suspension of license for conviction of felony or crime involving moral turpitude.

Any court before which any attorney has been qualified, on proof being made to it that he has been convicted of any felony, or any other crime involving moral turpitude, shall annul his license to practice therein or suspend the same for such time as the court may prescribe.

§30-2-7. Suspension or annulment of license for malpractice; appeal.

If the Supreme Court of Appeals or any court of record of this state, except the county court, observe any malpractice therein by any attorney, or if complaint, verified by affidavit, be made to any such court of malpractice by any attorney therein, such court shall order the attorney to be summoned to show cause why his license shall not be suspended or annulled. A summons shall thereupon be issued by the clerk of such court containing a copy of the charges and requiring the attorney to appear and answer the same on a day to be named therein, which summons may be served in the same manner as a summons commencing an action may be served, and the service shall be made at least five days before the return day thereof. Upon the return of the summons executed, if the attorney appear and deny the charge of malpractice, the court shall, without a jury, try the same. If the attorney be found guilty by the court, or if he fail to appear and deny the charge, the court may either suspend or annul the license of such attorney as in its judgment shall seem right.

Whenever a judgment or decree shall be standing or rendered in any of said courts against an attorney for money collected by him as such, it shall be the duty of such court to suspend the license of such attorney until such judgment or decree shall be satisfied.

An appeal shall lie from any court of record of limited jurisdiction established under the provisions of section 19 of article VIII of the Constitution of this state, to the circuit court of the county, and from any circuit court to the Supreme Court of Appeals of the state, from any order suspending or annulling the license of any attorney proceeded against under the provisions of this section.

§30-2-8. Security for good behavior; contempt.

Nothing in the preceding section shall affect the right of any court to require from an attorney therein security for his good behavior, or to fine him for a contempt of the court.

§30-2-9. Revocation, annulment or suspension of license effective throughout state.

Any revocation, annulment or suspension of a license to practice law shall operate and be effective throughout the state.

§30-2-10. Clerk and sheriff or their deputies not to act as attorneys.

If any clerk, sheriff, or any deputy of either, or any person interested in the profits of any such office, shall act as attorney at law in any case in any court of which such clerk or sheriff is an officer, he shall forfeit $30.

§30-2-11. Liability of attorney to client for neglect of duty.

Every attorney at law shall be liable to his client for any damages sustained by the client by the neglect of his duty as such attorney.

§30-2-12. Liability of attorney or agent for loss of debt or money.

If any attorney at law or agent shall, by his negligence or improper conduct, lose any debt or other money of his client, he shall be charged with the principal of what is so lost, and interest thereon, in like manner as if he had received such principal, and it may be recovered from him by suit or motion.

§30-2-13. Liability of attorney for failure to pay over moneys collected; penalty.

If any attorney receive money for his client as such attorney and fail to pay the same on demand, or within six months after receipt thereof, without good and sufficient reason for such failure, it may be recovered from him by suit or motion; and damages in lieu of interest, not exceeding fifteen percent per annum until paid, may be awarded against him and he shall be deemed guilty of a misdemeanor and, be fined not less than twenty nor more than $500.

§30-2-14. Disbarment for offense under §30-2-13.

Any attorney convicted under the next preceding section shall, in addition to the punishment therein prescribed, be disbarred from practicing as an attorney in any of the courts of this state, and the same shall be entered by the court as part of its judgment.

§30-2-15. Compensation.

An attorney shall be entitled for his services as such to such sums as he may contract for with the party for whom the service is rendered; and, in the absence of such contract, he may recover of such party what his services were reasonably worth.

§30-2-16. Solicitation of employment by or for attorney in cases of personal injury or death; limitation of section; penalty.

It shall be unlawful for any attorney at law, either himself or by or through an agent, employee or other person acting on his behalf, to solicit in this state another person to employ, or procure or bring about the employment of, said attorney at law or any other attorney at law for the purpose of presenting, making, collecting, enforcing or prosecuting a claim, suit or action for damages for personal injury or death. It shall be unlawful for any person, as agent or employee or otherwise acting on behalf of an attorney at law, to solicit in this state another person to employ, or procure or bring about the employment of, said attorney at law or any other attorney at law for the purpose of presenting, making, collecting, enforcing or prosecuting such a claim, suit or action for damages. The solicitation by any person of another person to employ, or procure or bring about the employment of, any attorney at law for the purpose of presenting, making, collecting, enforcing or prosecuting such a claim, suit or action for damages, if followed by the employment of said attorney for such purposes, shall, in any prosecution of such person so soliciting, be prima facie evidence that such person so soliciting was an agent, employee or acting on behalf of said attorney at law.

Nothing in this section shall be construed to prohibit any person from employing or furnishing any attorney at law for the purpose of presenting, making, collecting, enforcing, prosecuting or defending against a claim, suit or action to which such person is or may be a party, or on it or by reason of which such person is or may be directly or indirectly liable to pay or respond in money, or to prohibit any attorney at law so employed or furnished from presenting, making, collecting, enforcing, prosecuting or defending against said claim, suit or action. Nothing in this section shall be construed to prohibit any benevolent or charitable organization from assisting persons without means in the pursuit of any civil remedy. Nothing in this section shall impair or affect the disciplinary powers of the courts over attorneys at law and counsel appearing or practicing therein. In the construction of this section the words "attorney at law" shall be applied to and include any attorney at law, whether admitted or licensed to practice, or practicing, law in this state or in any other place or in any court thereof.

Any person violating any provision of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $1,000 or confined in the county jail not more than six months, or both.

§30-2A-1.

Repealed.

Acts, 1980 Reg. Sess., Ch. 83.

§30-3-1. Legislative findings.

The Legislature hereby finds and declares that the practice of medicine and surgery and the practice of podiatry is a privilege and not a natural right of individuals. As a matter of public policy, it is necessary to protect the public interest through enactment of this article and to regulate the granting of such privileges and their use.

§30-3-2. Purpose.

The purpose of this article is to provide for the licensure and professional discipline of physicians and podiatrists and for the licensure and professional discipline of physician assistants and to provide a professional environment that encourages the delivery of quality medical services within this state.

§30-3-3. Short title.

This article shall be known and may be cited as the "West Virginia Medical Practice Act."

§30-3-4. Definitions.

As used in this article:

(1) "Board" means the West Virginia Board of Medicine established in section five of this article.

(2) "Medical peer review committee" means a committee of, or appointed by, a state or local professional medical society, or a committee of, or appointed by, a medical staff of a licensed hospital, long-term care facility or other health care facility, or any health care peer review organization as defined in section one, article three-c of this chapter, or any other organization of professionals in this state formed pursuant to state or federal law and authorized to evaluate medical and health care services.

(3) "Practice of medicine and surgery" means the diagnosis or treatment of, or operation or prescription for, any human disease, pain, injury, deformity or other physical or mental condition. "Surgery" includes the use on humans of lasers, ionizing radiation, pulsed light and radiofrequency devices. The provisions of this section do not apply to any person who is a duly licensed health care provider under other pertinent provisions of this code and who is acting within the scope of his or her license.

(4) "Practice of podiatry" means the examination, diagnosis, treatment, prevention and care of conditions and functions of the human foot and ankle by medical, surgical and other scientific knowledge and methods; with surgical treatment of the ankle authorized only when a podiatrist has been granted privileges to perform ankle surgery by a hospital's medical staff credentialing committee based on the training and experience of the podiatrist; and medical and surgical treatment of warts and other dermatological lesions of the hand which similarly occur in the foot. When a podiatrist uses other than local anesthesia, in surgical treatment of the foot, the anesthesia must be administered by, or under the direction of, an anesthesiologist or certified registered nurse anesthetist authorized under the State of West Virginia to administer anesthesia. A medical evaluation shall be made by a physician of every patient prior to the administration of other than local anesthesia.

(5) "State health officer" means the commissioner for the Bureau for Public Health or his or her designee, which officer or designee shall be a physician and shall act as secretary of the board and shall carry out any and all responsibilities assigned in this article to the secretary of the board.

§30-3-5. West Virginia Board of Medicine powers and duties continued; appointment and terms of members; vacancies; removal.

The West Virginia Board of Medicine has assumed, carried on, and succeeded to all the duties, rights, powers, obligations, and liabilities heretofore belonging to or exercised by the Medical Licensing Board of West Virginia. All the rules, orders, rulings, licenses, certificates, permits, and other acts and undertakings of the Medical Licensing Board of West Virginia as heretofore constituted have continued as those of the West Virginia Board of Medicine until they expired or were amended, altered, or revoked. The board remains the sole authority for the issuance of licenses to practice medicine and surgery, to practice podiatry, and to practice as physician assistants in this state under the supervision of physicians licensed under this article. The board shall continue to be a regulatory and disciplinary body for the practice of medicine and surgery, the practice of podiatry, and for physician assistants in this state.

The board shall consist of 15 members. One member shall be the state health officer ex officio, with the right to vote as a member of the board. The other 14 members shall be appointed by the Governor, with the advice and consent of the Senate. Eight of the members shall be appointed from among individuals holding the degree of doctor of medicine, and one shall hold the degree of doctor of podiatric medicine. Two members shall be physician assistants licensed by the board. Each of these members must be duly licensed to practice his or her profession in this state on the date of appointment and must have been licensed and actively practicing that profession for at least five years immediately preceding the date of appointment. Three lay members shall be appointed to represent health care consumers. Neither the lay members nor any person of the lay members’ immediate families shall be a provider of or be employed by a provider of health care services. The state health officer’s term shall continue for the period that he or she holds office as state health officer. Each other member of the board shall be appointed to serve a term of five years: Provided, That the members of the Board of Medicine holding appointments on the effective date of this section shall continue to serve as members of the Board of Medicine until the expiration of their term unless sooner removed. Each term shall begin on October 1 of the applicable year and a member may not be appointed to more than two consecutive full terms on the board.

A person is not eligible for membership on the board who is a member of any political party executive committee or, with the exception of the state health officer, who holds any public office or public employment under the federal government or under the government of this state or any political subdivision thereof.

In making appointments to the board, the Governor shall, so far as practicable, select the members from different geographical sections of the state. When a vacancy on the board occurs and less than one year remains in the unexpired term, the appointee shall be eligible to serve the remainder of the unexpired term and two consecutive full terms on the board.

No member may be removed from office by the Governor except for official misconduct, incompetence, neglect of duty, or gross immorality: Provided, That the expiration, surrender, or revocation of the professional license by the board of a member of the board shall cause the membership to immediately and automatically terminate.

§30-3-6. Conduct of business of West Virginia Board of Medicine; meetings; officers; compensation; expenses; quorum.

Every two years the board shall elect from among its members a president and vice president. Regular meetings shall be held as scheduled by the rules of the board. Special meetings of the board may be called by the joint action of the president and vice president or by any three members of the board on seven days' prior written notice by mail postage prepaid or electronic means or, in case of emergency, on two days' notice by telephone and electronic means. With the exception of the state health officer, members of the board shall receive compensation and expense reimbursement in accordance with section eleven, article one of this chapter.

A majority of the membership of the board constitutes a quorum for the transaction of business, and business is transacted by a majority vote of a quorum, except for disciplinary actions which shall require the affirmative vote of not less than five members or a majority vote of those present, whichever is greater.

Meetings of the board shall be held in public session. Disciplinary proceedings, prior to a finding of probable cause as provided in subsection (p), section fourteen of this article, shall be held in closed sessions, unless the party subject to discipline requests that the proceedings be held in public session.

§30-3-7. Powers and duties of West Virginia Board of Medicine.

(a) The board is autonomous and, in accordance with this article, shall determine qualifications of applicants for licenses to practice medicine and surgery, to practice podiatry, and to practice as a physician assistant for a physician licensed under this article, and shall issue licenses to qualified applicants and shall regulate the professional conduct and discipline of such individuals. In carrying out its functions, the board may:

(1) Adopt such rules as are necessary to carry out the purposes of this article;

(2) Hold hearings and conduct investigations, subpoena witnesses and documents and administer oaths;

(3) Institute proceedings in the courts of this state to enforce its subpoenas for the production of witnesses and documents and its orders and to restrain and enjoin violations of this article and of any rules promulgated under it;

(4) Employ investigators, attorneys, hearing examiners, consultants and such other employees as may be necessary, who shall be exempt from the classified service of the Division of Personnel and who shall serve at the will and pleasure of the board.

(5) Enter into contracts and receive and disburse funds according to law;

(6) Establish and certify standards for the supervision and certification of physician assistants;

(7) Authorize medical and podiatry corporations in accordance with the limitations of section fifteen of this article to practice medicine and surgery or podiatry through duly licensed physicians or podiatrists; and

(8) Perform such other duties as are set forth in this article or otherwise provided for in this code.

(b) The board shall submit an annual report of its activities to the Legislature. The report shall include a statistical analysis of complaints received, charges investigated, charges dismissed after investigation, the grounds for each such dismissal and disciplinary proceedings and disposition.

§30-3-7a. Findings and Rule-making authority.

(a) The Legislature finds that it is appropriate and in the public interest to require the board of Medicine to regulate the practice of Radiologist Assistants.

(b) The West Virginia Board of Medicine, with the advice of the West Virginia Medical Imaging and Radiation Therapy Technology Board of Examiners, shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to:

(1) Establish the scope of practice of a Radiologist Assistant;

(2) Develop the education and training requirements for a Radiologist Assistant; and

(3) Regulate Radiologist Assistants.

§30-3-8. State health officer to act as secretary of the board.

The state health officer, in addition to being a member of the board, shall act as its secretary. He or she shall, together with the president of the board, sign all licenses, reports, orders and other documents that may be required by the board in the performance of its duties.

§30-3-9. Records of board; expungement; examination; notice; public information; voluntary agreements relating to alcohol or chemical dependency; confidentiality of same; physician-patient privileges.

(a) The board shall maintain a permanent record of the names of all physicians, podiatrists, and physician assistants, licensed, certified or otherwise lawfully practicing in this state and of all persons applying to be so licensed to practice, along with an individual historical record for each such individual containing reports and all other information furnished the board under this article or otherwise. Such record may include, in accordance with rules established by the board, additional items relating to the individual's record of professional practice that will facilitate proper review of such individual's professional competence.

(b) Upon a determination by the board that any report submitted to it is without merit, the report shall be expunged from the individual's historical record.

(c) A physician, podiatrist, physician assistant or applicant, or authorized representative thereof, has the right, upon request, to examine his or her own individual historical record maintained by the board pursuant to this article and to place into such record a statement of reasonable length of his or her own view of the correctness or relevance of any information existing in such record. Such statement shall at all times accompany that part of the record in contention.

(d) A physician, podiatrist, physician assistant or applicant has the right to seek through court action the amendment or expungement of any part of his or her historical record.

(e) A physician, podiatrist, physician assistant or applicant shall be provided written notice within thirty days of the placement and substance of any information in his or her individual historical record that pertains to him or her and that was not submitted to the board by him or her.

(f) Except for information relating to biographical background, education, professional training and practice, a voluntary agreement entered into pursuant to subsection (h) of this section and which has been disclosed to the board, prior disciplinary action by any entity, or information contained on the licensure application, the board shall expunge information in an individual's historical record unless it has initiated a proceeding for a hearing upon such information within two years of the placing of the information into the historical record.

(g) Orders of the board relating to disciplinary action against a physician, podiatrist or physician assistant are public information.

(h)(1) In order to encourage voluntary participation in monitored alcohol chemical dependency or major mental illness programs and in recognition of the fact that major mental illness, alcoholism and chemical dependency are illnesses, a physician, podiatrist or physician assistant licensed, certified or otherwise lawfully practicing in this state or applying for a license to practice in this state may enter into a voluntary agreement with the physician health program as defined in section two, article three-d of this chapter. The agreement between the physician, podiatrist or physician assistant and the physician health program shall include a jointly agreed upon treatment program and mandatory conditions and procedures to monitor compliance with the program of recovery.

(2) Any voluntary agreement entered into pursuant to this subsection shall not be considered a disciplinary action or order by the board, shall not be disclosed to the board and shall not be public information if:

(A) Such voluntary agreement is the result of the physician, podiatrist or physician assistant self-enrolling or voluntarily participating in the board-designated physician health program;

(B) The board has not received nor filed any written complaints regarding said physician, podiatrist or physician assistant relating to an alcohol, chemical dependency or major mental illness affecting the care and treatment of patients, nor received any reports pursuant to subsection (b), section fourteen of this article relating to an alcohol or chemical dependency impairment; and

(C) The physician, podiatrist or physician assistant is in compliance with the voluntary treatment program and the conditions and procedures to monitor compliance.

(3) If any physician, podiatrist or physician assistant enters into a voluntary agreement with the board-approved physician health program, pursuant to this subsection and then fails to comply with or fulfill the terms of said agreement, the physician health program shall report the noncompliance to the board within twenty-four hours. The board may initiate disciplinary proceedings pursuant to subsection (a), section fourteen of this article or may permit continued participation in the physician health program or both.

(4) If the board has not instituted any disciplinary proceeding as provided for in this article, any information received, maintained or developed by the board relating to the alcohol or chemical dependency impairment of any physician, podiatrist or physician assistant and any voluntary agreement made pursuant to this subsection shall be confidential and not available for public information, discovery or court subpoena, nor for introduction into evidence in any medical professional liability action or other action for damages arising out of the provision of or failure to provide health care services.

In the board's annual report of its activities to the Legislature required under section seven of this article, the board shall include information regarding the success of the voluntary agreement mechanism established therein: Provided, That in making such report, the board shall not disclose any personally identifiable information relating to any physician, podiatrist or physician assistant participating in a voluntary agreement as provided herein.

Notwithstanding any of the foregoing provisions, the board may cooperate with and provide documentation of any voluntary agreement entered into pursuant to this subsection to licensing boards in other jurisdictions of which the board has become aware and may be appropriate.

(i) Any physician-patient privilege does not apply in any investigation or proceeding by the board or by a medical peer review committee or by a hospital governing board with respect to relevant hospital medical records, while any of the aforesaid are acting within the scope of their authority: Provided, That the disclosure of any information pursuant to this provision shall not be considered a waiver of any such privilege in any other proceeding.

§30-3-10. Licenses to practice medicine and surgery or podiatry.

(a) A person seeking licensure as an allopathic physician shall apply to the board.

(b) A license may be granted to an applicant who has graduated and received the degree of doctor of medicine or its equivalent from a school of medicine located within the United States, the Commonwealth of Puerto Rico, or Canada, and is approved by the Liaison Committee on Medical Education or by the board, and who:

(1) Submits a complete application;

(2) Pays the applicable fees;

(3) Demonstrates to the board’s satisfaction that the applicant:

(A) Is of good moral character;

(B) Is physically and mentally capable of engaging in the practice of medicine and surgery;

(C) Has, within 10 consecutive years, passed all component parts of the United States Medical Licensing Examination or any prior examination or examination series approved by the board which relates to a national standard, is administered in the English language, and is designed to ascertain an applicant’s fitness to practice medicine and surgery;

(D) Has successfully completed:

(i) A minimum of one year of graduate clinical training in a program is approved by the Accreditation Council for Graduate Medical Education; or

(ii) A graduate medical education residency program outside of the United States and a minimum of one year of fellowship training in the United States in a clinical field related to the applicant’s residency training which was completed:

(I) At an institution that sponsors or operates a residency program in the same clinical field or a related clinical field approved by the Accreditation Council for Graduate Medical Education; or

(II) At a time when accreditation was not available for the fellowship’s clinical field and the board has determined that the training was similar to accredited training due to objective standards, including, but not limited to, the presence of other accredited programs at the sponsoring institution during the applicant’s clinical training at the fellowship location; and

(E) Meets any other criteria for licensure set forth in this article or in rules promulgated by the board pursuant to §30-3-7 of this code and in accordance with §29A-3-1 et seq. of this code.

(c) A license may be granted to an applicant who has received the degree of doctor of medicine or its equivalent from a school of medicine located outside of the United States, the Commonwealth of Puerto Rico, and Canada, who:

(1) Submits a complete application;

(2) Pays the applicable fees;

(3) Demonstrates to the board’s satisfaction that the applicant:

(A) Is of good moral character;

(B) Is physically and mentally capable of engaging in the practice of medicine and surgery;

(C) Has, within 10 consecutive years, passed all component parts of the United States Medical Licensing Examination or any prior examination or examination series approved by the board which relates to a national standard, is administered in the English language, and is designed to ascertain an applicant’s fitness to practice medicine and surgery;

(D) Has successfully completed:

(i) A minimum of two years of graduate clinical training approved by the Accreditation Council for Graduate Medical Education;

(ii) A minimum of one year of graduate clinical training approved by the Accreditation Council for Graduate Medical Education or one year of fellowship training which comports with the requirements of subparagraph (iii) of this paragraph and the applicant holds a current certification by a member board of the American Board of Medical Specialties; or

(iii) A graduate medical education residency program outside of the United States and a minimum of two years of fellowship training in the United States in a clinical field related to the applicant’s residency training which was completed:

(I) At an institution that sponsors or operates a residency program in the same clinical field or a related clinical field approved by the Accreditation Council for Graduate Medical Education; or

(II) At a time when accreditation was not available for the fellowship’s clinical field and the board has determined that the training was similar to accredited training due to objective standards, including, but not limited to, the presence of other accredited programs at the sponsoring institution during the applicant’s clinical training at the fellowship location;

(E) Holds a valid ECFMG certificate issued by the Educational Commission for Foreign Medical Graduates or:

(i) Holds a full, unrestricted, and unconditional license to practice medicine and surgery under the laws of another state, the District of Columbia, Canada, or the Commonwealth of Puerto Rico;

(ii) Has been engaged in the practice of medicine on a full-time professional basis within the state or jurisdiction where the applicant is fully licensed for a period of at least five years; and

(iii) Is not the subject of any pending disciplinary action by a medical licensing board and has not been the subject of professional discipline reportable to the National Practitioner Data Bank by a medical licensing board in any jurisdiction;

(F) Can communicate in the English language; and

(G) Meets any other criteria for licensure set forth in this article or in rules promulgated by the board pursuant to §30-3-7 of this code and in accordance with §29A-3-1 et seq. of this code.

(d) A person seeking licensure as a podiatrist shall apply to the board. A license may be granted to an applicant who:

(1) Submits a complete application;

(2) Pays the applicable fees;

(3) Demonstrates to the board’s satisfaction that the applicant:

(A) Is of good moral character;

(B) Is physically and mentally capable of engaging in the practice of podiatric medicine and surgery;

(C) Has graduated and received the degree of doctor of podiatric medicine or its equivalent from a school of podiatric medicine approved by the Council of Podiatric Medical Education or by the board;

(D) Has, within 10 consecutive years, passed all component parts of the American Podiatric Medical Licensing Examination, or any prior examination or examination series approved by the board which relates to a national standard, is administered in the English language, and is designed to ascertain an applicant’s fitness to practice podiatric medicine;

(E) Has successfully completed a minimum of one year of graduate clinical training in a program approved by the Council on Podiatric Medical Education or the Colleges of Podiatric Medicine. The board may consider a minimum of two years of graduate podiatric clinical training in the United States armed forces or three years’ private podiatric clinical experience in lieu of this requirement; and

(F) Meets any other reasonable criteria for licensure set forth in this article or in legislative rules promulgated by the board.

(e) Notwithstanding any of the provisions of this article, the board may issue a restricted license to an applicant in extraordinary circumstances under the following conditions:

(1) Upon a finding by the board that based on the applicant’s exceptional education, training, and practice credentials, the applicant’s practice in the state would be beneficial to the public welfare;

(2) Upon a finding by the board that the applicant’s education, training, and practice credentials are substantially equivalent to the requirements of licensure established in this article;

(3) Upon a finding by the board that the applicant received his or her post-graduate medical training outside of the United States and its territories;

(4) That the restricted license issued under extraordinary circumstances is approved by a vote of three fourths of the members of the board; and

(5) That orders denying applications for a restricted license under this subsection are not appealable.

 (f) The board may propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code that establish and regulate the restricted license issued to an applicant in extraordinary circumstances pursuant to the provisions of this section.

(g) Personal interviews by board members of all applicants are not required. An applicant for a license may be required by the board, in its discretion, to appear for a personal interview and may be required to produce original documents for review by the board.

(h) All licenses to practice medicine and surgery granted prior to July 1, 2008, and valid on that date shall continue in full effect for the term and under the conditions provided by law at the time of the granting of the license: Provided, That the provisions of subsection (d) of this section do not apply to any person legally entitled to practice chiropody or podiatry in this state prior to June 11, 1965: Provided, however, That all persons licensed to practice chiropody prior to June 11, 1965, are permitted to use the term “chiropody-podiatry” and shall have the rights, privileges, and responsibilities of a podiatrist set out in this article.

(i) The board shall not issue a license to a person not previously licensed in West Virginia whose license has been revoked or suspended in another state until reinstatement of his or her license in that state.

(j) The board shall not issue an initial license, reinstate, or reactivate a license, to any individual whose license has been revoked, suspended, surrendered, or deactivated in another state based upon conduct which is substantially equivalent to an act of unprofessional conduct prohibited by §30-3-14(c) of this code or the board’s legislative rules, until reinstatement of his or her license in that state.

(k) The board need not reject a candidate for a nonmaterial technical or administrative error or omission in the application process that is unrelated to the candidate’s professional qualifications as long as there is sufficient information available to the board to determine the eligibility and qualifications of the candidate for licensure.

§30-3-10a. Special volunteer medical license; civil immunity for voluntary services rendered to indigents.

(a) There is hereby established a special volunteer medical license for physicians retired or retiring from the active practice of medicine who wish to donate their expertise for the medical care and treatment of indigent and needy patients in the clinical setting of clinics organized, in whole or in part, for the delivery of health care services without charge. The special volunteer medical license shall be issued by the West Virginia Board of Medicine to physicians licensed or otherwise eligible for licensure under this article and the rules promulgated hereunder without the payment of any application fee, license fee or renewal fee, shall be issued for a fiscal year or part thereof, and shall be renewable annually. The board shall develop application forms for the special license provided for in this subsection which shall contain the physician’s acknowledgment that:

(1) The physician’s practice under the special volunteer medical license will be exclusively and totally devoted to providing medical care to needy and indigent persons in West Virginia;

(2) the physician will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation, but may donate to the clinic the proceeds of any reimbursement for any medical services rendered under the special volunteer medical license;

(3) the physician will supply any supporting documentation that the board may reasonably require; and

(4) the physician agrees to continue to participate in continuing medical education as required of physicians in active practice.

(b) Any person engaged in the active practice of medicine in this state whose license is in good standing may donate their expertise for the medical care and treatment of indigent and needy patients under an arrangement with a clinic organized, in whole or in part, for the delivery of health care services without charge to the patient. Services rendered under an arrangement may be performed in either the physician’s office or the clinical setting.

(c) Any physician who renders any medical 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 medical license authorized under subsection (a) of this section or pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) 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 medical service at the clinic unless the act or omission was the result of the physician’s gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there must be a written agreement between the physician and the clinic pursuant to which the physician will provide voluntary noncompensated medical services under the control of the clinic to patients of the clinic before the rendering of any services by the physician at the clinic: Provided, That any clinic entering into such written agreement shall be required to maintain liability coverage of not less than $1 million per occurrence.

(d) Notwithstanding the provisions of subsection (a) 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 a physician rendering voluntary medical services at or for the clinic under a special volunteer medical license authorized under subsection (a) of this section or pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) of this section.

(e) For purposes of this section, “otherwise eligible for licensure” means the satisfaction of all the requirements for licensure as listed in section ten of this article and in the legislative rules promulgated hereunder, except the fee requirements of subsections (b) and (d) of said section and of the legislative rule promulgated by the board relating to fees.

(f) Nothing in this section may be construed as requiring the board to issue a special volunteer medical license to any physician whose medical license is or has been subject to any disciplinary action or to any physician who has surrendered a medical license or caused such license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her medical license, or who has elected to place a medical license in inactive status in lieu of having a complaint initiated or other action taken against his or her medical license, or who have been denied a medical license.

(g) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any physician 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 a physician who holds a special volunteer medical license or who renders such care and treatment pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) of this section: Provided, That this subsection shall not apply to a terminated policy, terminated contract of liability insurance or extended reporting endorsement attached thereto that provides "tail insurance" as defined by section two, article twenty-d, chapter thirty-three of this code: Provided, however, That nothing within this subsection shall be construed to extend coverage under a terminated policy or terminated contract of liability insurance or any extended reporting endorsement attached thereto to: (1) Alter or amend the effective policy period of any policy, contract of liability insurance or extended reporting endorsement; or (2) cover the treatment of indigent and needy patients by a physician who holds a special volunteer medical license or who renders such care and treatment pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) of this section.

§30-3-11. Endorsement of licenses to practice medicine and surgery and podiatry; fees; temporary license; summer camp doctors.

(a)(1) Any person seeking to be licensed to practice medicine and surgery in this state who holds a valid license to practice medicine and surgery attained under requirements similar to the requirement of §30-3-10 of this code from another state, the District of Columbia, the Commonwealth of Puerto Rico, or Canada; or

(2) Any person seeking to be licensed to practice podiatry in this state who holds a valid license to practice podiatry attained under requirements similar to the requirements in §30-3-10 of this code from another jurisdiction shall be issued a license to practice podiatry, as appropriate, in this state if he or she meets the following requirements:

(A) He or she must submit an application to the board on forms provided by the board and remit a licensure fee, as provided in legislative rule. The application must, as a minimum, require a statement that the applicant is a licensed physician or podiatrist in good standing and indicate whether any medical disciplinary action has been taken against him or her in the past; and

(B) He or she must demonstrate to the satisfaction of the board that he or she has the requisite qualifications to provide the same standard of care as a physician or podiatrist initially licensed in this state.

(b) The board may investigate the applicant and may request a personal interview to review the applicant’s qualifications and professional credentials.

(c) The board may grant a temporary license to an individual applying for licensure under this section if the individual meets the requirements of this section. A temporary license issued by the board authorizes the holder to practice medicine and surgery or podiatry in West Virginia for the term of the temporary license, and includes full prescriptive authority. The temporary license is valid until its holder has either been granted or denied a license at the next regular meeting of the board. The board may fix and collect a fee for a temporary license, as provided in legislative rule.

(d) The application fee shall be waived, and to the extent consistent with the integrity of the licensure process and the requirements for licensure as set forth in this section and in the relevant legislative rules, the board shall expedite its processing of an individual’s application to practice medicine and surgery, or practice podiatry: Provided, That the sole purpose for licensure is to provide services at a children’s summer camp for not more than one specifically designated three-week period annually. The license shall be issued for a period of the specifically designated three weeks only, on an annual basis.

§30-3-11a. Endorsement of licenses to practice medicine and surgery as medical school faculty.

(a) The board shall issue a limited license to practice medicine and surgery without examination to an individual appointed to a West Virginia medical school faculty who holds a valid license to practice medicine and surgery from another state, the District of Columbia, the Commonwealth of Puerto Rico, Canada or other country the board determines has substantially equivalent requirements for licensure as those jurisdictions, and who has completed the application form prescribed by the board, remitted a nonrefundable application fee in the amount of $150 and who presents satisfactory proof to the board that:

(1) He or she is of good moral and professional character;

(2) He or she is physically and mentally capable of engaging in the practice of medicine and surgery;

(3) He or she is able to communicate in English;

(4) He or she is a graduate of a school of medicine which is approved by the liaison committee on medical education or by the World Health Organization or by the board with the degree of doctor of medicine or its equivalent;

(5) He or she has successfully completed one year of approved graduate clinical training or a fellowship of at least one year, or has received training which the board determines to be equivalent to or exceeds the one year graduate clinical training or fellowship requirement;

(6) He or she has not committed any act in this or any other jurisdiction which would constitute the basis for disciplining a physician under section fourteen of this article; and

(7) He or she has been offered and has accepted a faculty appointment to teach in a medical school in this state.

(b) The board shall investigate the applicant and may request a personal interview to review the applicant's qualifications and professional credentials.

(c) The medical practice of a physician licensed under this section is limited to the medical center of the medical school to which the physician has been appointed to the faculty.

(d) A limited license issued under this section is valid for a term of one year. No limited license issued pursuant to this section may be renewed.

(e) Before the limited license has expired, a physician licensed under this section may apply for a license to practice medicine and surgery in West Virginia pursuant to the provisions of section twelve of this article: Provided, That any license granted by the board pursuant to this subsection, retains the practice limitations set out in subsection (c) of this section.

(f) Any license issued under this section will automatically expire and be void, without notice to the physician, when the physician's faculty appointment is terminated. The dean of the medical school shall notify the board within five days of the termination of a faculty appointment of a physician licensed pursuant to this section.

(g) A physician licensed under this section must keep all medical licenses issued by other jurisdictions in good standing and must notify the board, within fifteen days of its occurrence, of any denial, suspension or revocation of or any limitation placed on a medical license issued by another jurisdiction.

§30-3-11b. License to practice medicine and surgery at certain state veterans nursing home facilities.

(a) The board is authorized and encouraged to the best of its ability to issue a license to practice medicine and surgery in this state without examination to a physician that currently holds a license to practice medicine and surgery at a Federal Veterans Administration Hospital upon completion of an application form prescribed by the board and who presents satisfactory proof to the board that he or she is currently employed and practicing in a Federal Veterans Administration Hospital that is located in a county in which a nursing home operated by the West Virginia Department of Veteran's Assistance is located: Provided, That the physician shall maintain an valid, unrestricted license to practice medicine in another state.

(b) The medical practice for which a physician is licensed under this section is limited to practice in a nursing home operated by the West Virginia Department of Veteran's Assistance that is located in the same county in which the Federal Veterans Administration Hospital where the individual is employed.

(c) No fee may be assessed to an individual licensed or seeking licensure pursuant to this section.

(d) The board shall propose emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code to implement the provisions of this section.

(e) The board shall report to the Legislative Oversight Commission on Health and Human Resources Accountability and the Legislative Oversight Commission on Education Accountability by July 1, 2016 on the implementation of this section including the number of licenses issued, number of complaints, and any other pertinent legislation.

§30-3-12. Biennial renewal of license to practice medicine and surgery or podiatry; continuing education; rules; fee; inactive license; denial for conviction of felony offense.

(a) A license to practice medicine and surgery or podiatry in this state is valid for a term of two years.

(b) The license shall be renewed:

(1) Upon receipt of a reasonable fee, as set by the board;

(2) Submission of an application on forms provided by the board; and

(3) A certification of participation in and successful completion of a minimum of fifty hours of continuing medical or podiatric education satisfactory to the board, as appropriate to the particular license, during the preceding two-year period.

(c) The application may not require disclosure of a voluntary agreement entered into pursuant to subsection (h), section nine of this article.

(d) Continuing medical education satisfactory to the board is continuing medical education designated as Category I by the American Medical Association or the Academy of Family Physicians and alternate categories approved by the board.

(e) Continuing podiatric education satisfactory to the board is continuing podiatric education approved by the Council on Podiatric Education and alternate categories approved by the board.

(f) Notwithstanding any provision of this chapter to the contrary, beginning July 1, 2007, failure to timely submit to the board a certification of successful completion of a minimum of fifty hours of continuing medical or podiatric education satisfactory to the board, as appropriate to the particular license, shall result in the automatic expiration of any license to practice medicine and surgery or podiatry until such time as the certification, with all supporting written documentation, is submitted to and approved by the board.

(g) If a license is automatically expired and reinstatement is sought within one year of the automatic expiration, the former licensee shall:

(1) Provide certification with supporting written documentation of the successful completion of the required continuing education;

(2) Pay a renewal fee; and

(3) Pay a reinstatement fee equal to fifty percent of the renewal fee.

(h) If a license is automatically expired and more than one year has passed since the automatic expiration, the former licensee shall:

(1) Apply for a new license;

(2) Provide certification with supporting written documentation of the successful completion of the required continuing education; and

(3) Pay such fees as determined by the board.

(i) Any individual who accepts the privilege of practicing medicine and surgery or podiatry in this state is required to provide supporting written documentation of the continuing education represented as received within thirty days of receipt of a written request to do so by the board. If a licensee fails or refuses to provide supporting written documentation of the continuing education represented as received as required in this section, such failure or refusal to provide supporting written documentation is prima facie evidence of renewing a license to practice medicine and surgery or podiatry by fraudulent misrepresentation.

(j) The board may renew, on an inactive basis, the license of a physician or podiatrist who is currently licensed to practice medicine and surgery or podiatry in, but is not actually practicing, medicine and surgery or podiatry in this state. A physician or podiatrist holding an inactive license shall not practice medicine and surgery or podiatry in this state.

(k) An inactive license may be converted by the board to an active license upon a written request by the licensee to the board that:

(1) Accounts for his or her period of inactivity to the satisfaction of the board; and

(2) Submits written documentation of participation in and successful completion of a minimum of fifty hours of continuing medical or podiatric education satisfactory to the board, as appropriate to the particular license, during each preceding two-year period.

(l) An inactive license may be obtained upon receipt of a reasonable fee, as set by the board, and submission of an application on forms provided by the board on a biennial basis.

(m) The board may not require any physician or podiatrist who is retired or retiring from the active practice of medicine and surgery or the practice of podiatry and who is voluntarily surrendering their license to return to the board the license certificate issued to them by the board.

(n) The board may deny or refuse to reissue a license to any person who has been convicted of a felony under the laws of this state, any other state, the United States or the laws of any other country or state outside of the United States.

§30-3-13. Licensing requirements for the practice of medicine and surgery or podiatry; exceptions; unauthorized practice; notice; criminal penalties.

(a) It is unlawful for any person who does not hold an active, unexpired license issued pursuant to this article, or who is not practicing pursuant to the licensure exceptions set forth in this section, to:

(1) Engage in the practice of medicine and surgery or podiatry in this state;

(2) Represent that he or she is a physician, surgeon or podiatrist authorized to practice medicine and surgery or podiatry in this state; or

(3) Use any title, word or abbreviation to indicate or induce others to believe that he or she is licensed to practice medicine and surgery or podiatry in this state.

(b) It is unlawful for any person who does not hold an active, unexpired license issued pursuant to this article to engage in the practice of telemedicine within this state.  As used in this section, the “practice of telemedicine” means the practice of medicine using communication tools such as electronic communication, information technology or other means of interaction between a licensed health care professional in one location and a patient in another location, with or without an intervening health care provider, and typically involves secure real time audio/video conferencing or similar secure audio/video services, remote monitoring, interactive video and store and forward digital image or health data technology to provide or support health care delivery by replicating the interaction of a traditional in person encounter between a provider and a patient.  The practice of telemedicine occurs in this state when the patient receiving health care services through a telemedicine encounter is physically located in this state.

(c) It is not unlawful for a person:

(1) Who is a licensed health care provider under this code to act within his or her scope of practice;

(2) Who is not a licensed health care professional in this state to provide first aid care in an emergency situation; or

(3) To engage in the bona fide religious tenets of any recognized church in the administration of assistance to the sick or suffering by mental or spiritual means.

(d) The following persons are exempt from the licensure requirements under this article:

(1) A person enrolled in a school of medicine approved by the Liaison Committee on Medical Education or by the board;

(2) A person enrolled in a school of podiatric medicine approved by the Council of Podiatry Education or by the board;

(3) A person engaged in graduate podiatric training in a program approved by the Council on Podiatric Education or by the board;

(4) A physician or podiatrist engaged in the performance of his or her official duties holding one or more licenses from another state or foreign country and who is a commissioned medical officer of, a member of or employed by:

(A) The United States Military;

(B) The Department of Defense;

(C) The United States Public Health Service; or

(D) Any other federal agency;

(5) A physician or podiatrist holding one or more unrestricted licenses granted by another state or foreign country serving as visiting medical faculty engaged in education, training or research duties at a medical school or institution recognized by the board for up to six months if:

(A) The physician does not engage in the practice of medicine and surgery or podiatry outside of the auspices of the sponsoring school or institution; and

(B) The sponsoring medical school or institution provides prior written notification to the board including the physician’s name, all jurisdictions of licensure and the beginning and end date of the physician’s visiting medical faculty status;

 (6) A physician or podiatrist holding one or more unrestricted licenses granted by another state present in the state as a member of an air ambulance treatment team or organ harvesting team;

 (7) A physician or podiatrist holding one or more unrestricted licenses granted by another state or foreign country providing a consultation on a singular occasion to a licensed physician or podiatrist in this state, whether the consulting physician or podiatrist is physically present in the state for the consultation or not;

 (8) A physician or podiatrist holding one or more unrestricted licenses granted by another state or foreign country providing teaching assistance, in a medical capacity, for a period not to exceed seven days;

 (9) A physician or podiatrist holding one or more unrestricted licenses granted by another state or foreign country serving as a volunteer in a noncompensated role for a charitable function for a period not to exceed seven days; and

 (10) A physician or podiatrist holding one or more unrestricted licenses granted by another state or foreign country providing medical services to a college or university affiliated and/or sponsored sports team or an incorporated sports team if:

(A) He or she has a written agreement with that sports team to provide care to team members, band member, cheerleader, mascot, coaching staff and families traveling with the team for a specific sporting event, team appearance or training camp occurring in this state;

(B) He or she may only provide care or consultation to team members, coaching staff and families traveling with the team no longer than seven consecutive days per sporting event;

(C) He or she is not authorized to practice at a health care facility or clinic, acute care facility or urgent care center located in this state, but the physician may accompany the patient to the facility and consult; and

(D) The physician or podiatrist may be permitted, by written permission from the executive director, to extend his or her authorization to practice medicine for a maximum of seven additional consecutive days if the requestor shows good cause for the extension.

(e) A physician or podiatrist who does not hold a license issued by the board and who is practicing medicine in this state pursuant to the exceptions to licensure set forth in this section may practice in West Virginia under one or more of the licensure exceptions for no greater than a cumulative total of thirty days in any one calendar year.

(f) The executive director shall send by certified mail to a physician not licensed in this state a written order that revokes the privilege to practice medicine under this section if the executive director finds good cause to do so.  If no current address can be determined, the order may be sent by regular mail to the physician’s last known address.

(g) A person who engages in the unlawful practice of medicine and surgery or podiatry while holding a license issued pursuant to this article which has been classified by the board as expired for ninety days or fewer is guilty of a misdemeanor and, upon conviction, shall be fined not more than $5,000 or confined in jail not more than twelve months, or both fined and confined.

(h) A person who is found to be engaging in the practice of medicine and: (1) Has never been licensed by the board under this article; (2) holds a license which has been classified by the board as expired for greater than ninety days; or (3) holds a license which has been placed in inactive status, revoked, suspended or surrendered to the board is guilty of a felony and, upon conviction, shall be fined not more than $10,000 or imprisoned in a correctional facility for not less than one year nor more than five years or both fined and imprisoned.

(i)  Upon a determination by the board that any report or complaint submitted to it concerns allegations of the unlawful practice of medicine and surgery by an individual who is licensed under another article of this chapter, the board shall refer the complaint to the appropriate licensing authority.  Additionally, whenever the board receives credible information that an individual is engaging in the unlawful practice of medicine and surgery or podiatry in violation of this section, the board may report such information to the appropriate state and/or federal law enforcement authority and/or prosecuting attorney.

§30-3-13a. Telemedicine practice; requirements; exceptions; definitions; rule-making.

(a) Definitions. – For the purposes of this section:

(1) “Chronic nonmalignant pain” means pain that has persisted after reasonable medical efforts have been made to relieve the pain or cure its cause and that has continued, either continuously or episodically, for longer than three continuous months. “Chronic nonmalignant pain” does not include pain associated with a terminal condition or illness or with a progressive disease that, in the normal course of progression, may reasonably be expected to result in a terminal condition or illness.

(2) “Physician” means a person licensed or registered by the West Virginia Board of Medicine to practice allopathic medicine in West Virginia.

(3) “Store and forward telemedicine” means the asynchronous computer-based communication of medical data or images from an originating location to a physician or podiatrist at another site for the purpose of diagnostic or therapeutic assistance.

(4) “Telemedicine” means the practice of medicine using tools such as electronic communication, information technology, store and forward telecommunication, audio only telephone calls, or other means of interaction between a physician or podiatrist in one location and a patient in another location, with or without an intervening health care provider.

(5) “Telemedicine technologies” means technologies and devices which enable secure communications and information exchange in the practice of telemedicine, and typically involve the application of secure real-time audio/video conferencing or similar secure video services, remote monitoring or store and forward digital image technology, or audio only telephone calls to provide or support health care delivery by replicating the interaction of a traditional in-person encounter between a physician or podiatrist and a patient.

(b) Licensure or registration. –

(1) The practice of medicine occurs where the patient is located at the time the telemedicine technologies are used.

(2) A physician or podiatrist who practices telemedicine must be licensed as provided in this article or registered as provided in §30-1-1 et seq. of this code.

(3) This section does not apply to:

(A) An informal consultation or second opinion, at the request of a physician or podiatrist who is licensed to practice medicine or podiatry in this state: Provided, That the physician or podiatrist requesting the opinion retains authority and responsibility for the patient’s care; and

(B) Furnishing of medical assistance by a physician or podiatrist in case of an emergency or disaster, if no charge is made for the medical assistance.

(c) Physician-patient or podiatrist-patient relationship through telemedicine encounter. –

(1) A physician-patient or podiatrist-patient relationship may not be established through:

Text-based communications such as e-mail, Internet questionnaires, text-based messaging, or other written forms of communication.

(2) If an existing physician-patient or podiatrist-patient relationship does not exist prior to the utilization to telemedicine technologies, or if services are rendered solely through telemedicine technologies, a physician-patient or podiatrist-patient relationship may only be established:

(A) Through the use of telemedicine technologies which incorporate interactive audio using store and forward technology, real-time videoconferencing, or similar secure video services during the initial physician-patient or podiatrist-patient encounter;

(B) For the practice of pathology and radiology, a physician-patient relationship may be established through store and forward telemedicine or other similar technologies; or

(C) Through the use of audio-only calls or conversations that occur in real time. Patient communication though audio-visual communication is preferable, if available or possible. Audio-only calls or conversations that occur in real time may be used to establish the physician-patient relationship.

(3) Once a physician-patient or podiatrist-patient relationship has been established, either through an in-person encounter or in accordance with subdivision (2) of this subsection, the physician or podiatrist may utilize any telemedicine technology that meets the standard of care and is appropriate for the patient presentation.

(d) Telemedicine practice. –

A physician or podiatrist using telemedicine technologies to practice medicine or podiatry shall:

(1) Verify the identity and location of the patient;

(2) Provide the patient with confirmation of the identity and qualifications of the physician or podiatrist;

(3) Provide the patient with the physical location and contact information of the physician;

(4) Establish or maintain a physician-patient or podiatrist-patient relationship that conforms to the standard of care;

(5) Determine whether telemedicine technologies are appropriate for the patient presentation for which the practice of medicine or podiatry is to be rendered;

(6) Obtain from the patient appropriate consent for the use of telemedicine technologies;

(7) Conduct all appropriate evaluations and history of the patient consistent with traditional standards of care for the patient presentation;

(8) Create and maintain health care records for the patient which justify the course of treatment and which verify compliance with the requirements of this section; and

(9) The requirements of §30-3-13(a)(1) through §30-3-13(a)(8) of this code do not apply to the practice of pathology or radiology medicine through store and forward telemedicine.

(e) Standard of care. –

 The practice of medicine or podiatry provided via telemedicine technologies, including the establishment of a physician-patient or podiatrist-patient relationship and issuing a prescription via electronic means as part of a telemedicine encounter, are subject to the same standard of care, professional practice requirements and scope of practice limitations as traditional in-person physician-patient or podiatrist-patient encounters. Treatment, including issuing a prescription, based solely on an online questionnaire, does not constitute an acceptable standard of care.

(f) Patient records. –

The patient record established during the use of telemedicine technologies shall be accessible and documented for both the physician or podiatrist and the patient, consistent with the laws and legislative rules governing patient health care records. All laws governing the confidentiality of health care information and governing patient access to medical records shall apply to records of practice of medicine or podiatry provided through telemedicine technologies. A physician or podiatrist solely providing services using telemedicine technologies shall make documentation of the encounter easily available to the patient, and subject to the patient’s consent, to any identified care provider of the patient.

(g) Prescribing limitations. –

(1) A physician or podiatrist who practices medicine to a patient solely through the utilization of telemedicine technologies may not prescribe to that patient any controlled substances listed in Schedule II of the Uniform Controlled Substances Act: 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.

(2) The prescribing limitations in this subsection do not apply when a physician is providing treatment to patients who are minors, or if 18 years of age or older, who are enrolled in a primary or secondary education program and are diagnosed with intellectual or developmental disabilities, neurological disease, Attention Deficit Disorder, Autism, or a traumatic brain injury in accordance with guidelines as set forth by organizations such as the American Psychiatric Association, the American Academy of Child and Adolescent Psychiatry, or the American Academy of Pediatrics. The physician must maintain records supporting the diagnosis and the continued need of treatment.

(3) The prescribing limitations in this subsection do not apply to a hospital, excluding the emergency department, when a physician submits an order to dispense a controlled substance, listed in Schedule II of the Uniform Controlled Substances Act, to a hospital patient for immediate administration in a hospital.

(4) A physician or podiatrist may not prescribe any pain-relieving controlled substance listed in Schedule II of the Uniform Controlled Substance Act as part of a course of treatment for chronic nonmalignant pain solely based upon a telemedicine encounter: 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.

(5) A physician or health care provider may not prescribe any drug with the intent of causing an abortion. The term “abortion” has the same meaning ascribed to it in §16-2F-2 of this code.

(h) Exceptions. –

This article does not prohibit the use of audio-only or text-based communications by a physician or podiatrist who is:

(1) Responding to a call for patients with whom a physician-patient or podiatrist-patient relationship has been established through an in-person encounter by the physician or podiatrist;

(2) Providing cross coverage for a physician or podiatrist who has established a physician-patient or podiatrist-patient relationship with the patient through an in-person encounter; or

(3) Providing medical assistance in the event of an emergency.

(i) Rulemaking. –

The West Virginia Board of Medicine and West Virginia Board of Osteopathic Medicine may propose joint rules for legislative approval in accordance with §29A-3-1, of this code to implement standards for and limitations upon the utilization of telemedicine technologies in the practice of medicine and podiatry in this state.

(j) Preserving traditional physician-patient or podiatrist-patient relationship. –

Nothing in this section changes the rights, duties, privileges, responsibilities, and liabilities incident to the physician-patient or podiatrist-patient relationship, nor is it meant or intended to change in any way the personal character of the physician-patient or podiatrist-patient relationship. This section does not alter the scope of practice of any health care provider or authorize the delivery of health care services in a setting, or in a manner, not otherwise authorized by law.

§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 determination; referral to law-enforcement authorities; rulemaking.

(a) (1) 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, the Board of Pharmacy, and others.

(2) 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 unfavorable outcomes arising out of medical professional liability. The board shall initiate an investigation if it receives notice that three or more judgments, or any combination of judgments and settlements resulting in five or more unfavorable outcomes arising from medical professional liability, have been rendered or made against the physician or podiatrist within a five-year period. The board may not consider any judgments or settlements as conclusive evidence of professional incompetence or conclusive lack of qualification to practice.

(b) (1) 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. If copies are provided, the subject physician or podiatrist is allowed 15 days to comment on the requested information and the comments shall be considered by the board.

(2) The chief executive officer of every hospital shall, within 60 days after the completion of the hospital’s formal disciplinary procedure and also within 60 days 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.

(3) Any managed care organization operating in this state which provides a formal peer review process shall report in writing to the board, within 60 days after the completion of any formal peer review process and also within 60 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 60 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.

(4) 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 60 days of a final decision the name of the member, together with all pertinent information relating to the action.

(5) Any person licensed or authorized by the board to provide health care services to patients in this state shall submit a written report to the board of any of the following incidents the person reasonably believes to have occurred involving a person licensed or authorized by the board to provide health care services to patients in this state:

(A) Exercising influence within a provider-physician relationship for the purpose of engaging a patient in sexual activity;

(B) Engaging in sexual misconduct with a patient;

(C) Violating established medical or professional protocols regarding transferring controlled substances or prescribing controlled substances;

(D) Engaging in conduct which jeopardizes patient safety; or

(E) Other gross misconduct.

All reports required by this subdivision shall be submitted to the board within 30 days of the reportable incident, or if the licensee or other authorized person with a duty to report gained knowledge of the incident after it occurred, within 30 days of the licensee or other authorized person’s knowledge of the incident. Failure of a licensee or other authorized person to report any such incidents to the board constitutes unprofessional conduct and is grounds for disciplinary action by the board. A physician who is licensed by the board and who obtains responsive information exclusively while functioning as the executive director or employee of a board-approved professional health program shall only be required to report in conformity with §30-3-9(h) of this code.

(6) 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 30 days from any judgment or settlement of a civil or medical professional liability action excepting product liability actions: the name of the insured; 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 required by the board.

(7) Within 30 days from the entry of an order by a court in a medical professional liability action or other civil action in which 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.

(8) Within 30 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 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.

(9) 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 §29A-5-1 et seq. 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 $1,000 nor more than $10,000 against the violator. The board shall notify any person so assessed 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 30 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 civil action, the court’s review of the board’s action shall be conducted in accordance with §29A-5-4 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 shall be clear and convincing before the board may find that the physician or podiatrist has demonstrated a lack of professional competence to practice with a reasonable degree of skill and safety for patients.

(10) 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.

(11) The board shall provide forms for filing reports pursuant to this section. Reports submitted in other forms shall be accepted by the board.

(12) 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.

(13) Any person who reports pursuant to this subsection, in good-faith and without fraud or malice, is immune from civil liability. Reports made in bad-faith, fraudulently, or maliciously constitute unprofessional conduct and, if made by persons licensed or authorized to practice by the board, are grounds for disciplinary action pursuant to § 30-3-14(c) of this code.

(c) The board may deny an application for a 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 or other authorization 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 covered in this subdivision 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 in this subdivision, “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 or engaging in other sexual misconduct;

(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, including, but not 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. 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, as defined in Schedules II and III of the Uniform Controlled 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;

(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, 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; or

(22) Knowingly failing to report to the board any act of gross misconduct committed by another licensee of the board or failing to comply with any reporting requirement set forth in §30-3-14(b) of this code.

(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, 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. Upon application of a physician that has had his or her license revoked because of a drug-related felony conviction, upon completion of any sentence of confinement, parole, probation, or other court-ordered supervision, and full satisfaction of any fines, judgments, or other fees imposed by the sentencing court, the board may issue the applicant a new license upon a finding that the physician is, except for the underlying conviction, otherwise qualified to practice medicine: Provided, That the board may place whatever terms, conditions, or limitations it deems appropriate upon a physician licensed pursuant to this subsection.

(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’s or podiatrist’s current patients, the investigating body may conduct a limited investigation related to the physician’s or podiatrist’s current capacity and qualification to practice and may recommend conditions, restrictions, or limitations on the physician’s 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 90 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 considers appropriate, as provided in this section.

(f) The investigating body, as provided in §30-3-14(e) of this code, 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 an 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 an 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 §29A-5-1 et seq. 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 20 days of the date of service of the written notice of charges or 60 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 may 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 20 days of the date of service of the written notice of charges, the board shall disclose any exculpatory evidence with a continuing duty to do so throughout the disciplinary process. Within 30 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 §30-3-14(c) of this code, 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 any period of time, including for the life of the licensee, that the board may find to be reasonable and necessary according to evidence presented in a hearing before the board or its designee;

(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 $1,000 nor more than $10,000.

(k) Notwithstanding the provisions of §30-1-8 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 in §30-3-4(j) of this code 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 15 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 this article has the right to judicial review as provided in §29A-5-1 et seq. and §29A-6-1 et seq. 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 60 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 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 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 in this section. 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 §30-3-14(c) of this code. If probable cause is found to exist, all proceedings on the charges shall be open to the public who are 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) If the board receives notice that a physician or podiatrist has been subjected to disciplinary action or has had his or her credentials suspended or revoked by the board, a hospital, or a professional society, as defined in §30-3-14(b) of this code, for three or more incidents during a five-year period, the board shall require the physician or podiatrist to practice under the direction of a physician or podiatrist designated by the board for a specified period of time to be established by the board.

(r) 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 that list. If the board and the physician or podiatrist are unable to agree on a mediator, the board shall designate a mediator from the list by neutral rotation. The mediation may 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.

(s) A physician licensed under this article may not be disciplined for providing expedited partner therapy in accordance with §16-4F-1 et seq. of this code.

(t) Whenever the board receives credible information that a licensee of the board is engaging or has engaged in criminal activity or the commitment of a crime under state or federal law, the board shall report the information, to the extent that sensitive or confidential information may be publicly disclosed under law, to the appropriate state or federal law-enforcement authority and/or prosecuting authority. This duty exists in addition to and is distinct from the reporting required under federal law for reporting actions relating to health care providers to the United States Department of Health and Human Services.

(u) The board shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code which define sexual misconduct and identify prohibited professional misconduct, including sexual misconduct, for which an application may be denied and/or a license or other authorization to practice may be subject to disciplinary action by the board pursuant to this section.

§30-3-15. Certificate of authorization requirements for medical corporations.

(a) Unlawful acts. — It is unlawful for any corporation to practice or offer to practice medicine, surgery, podiatric medicine, or to perform medical acts through one or more physician assistants in this state without a certificate of authorization issued by the board designating the corporation as an authorized medical corporation.

(b) Certificate of authorization for in-state medical corporation. —The board may issue a certificate of authorization for a medical corporation to one or more individuals licensed by the board. Licensees of the West Virginia Board of Osteopathic Medicine may join with licensees of the board to receive a certificate of authorization from the board. Eligible licensees may apply for a certificate of authorization by:

(1) Filing a written application with the board on a form prescribed by the board;

(2) Furnishing satisfactory proof to the board that each shareholder of the proposed medical or podiatry corporation is a licensed physician pursuant to this article, §30-3E-1 et seq., or §30-14-1 et seq. of this code; and

(3) Submitting applicable fees which are not refundable.

(c) Certificate of authorization for out-of-state medical corporation. — A medical corporation formed outside of this state for the purpose of engaging in the practice of medicine, surgery, and/or podiatric medicine may receive a certificate of authorization from the board to be designated a foreign medical corporation by:

(1) Filing a written application with the board on a form prescribed by the board;

(2) Furnishing satisfactory proof to the board that the medical corporation has received a certificate of authorization or similar authorization from the appropriate authorities as a medical corporation or professional corporation in its state of incorporation and is currently in good standing with that authority;

(3) Furnishing satisfactory proof to the board that at least one shareholder of the proposed medical corporation is a licensed physician or podiatric physician pursuant to this article and is designated as the corporate representative for all communications with the board regarding the designation and continuing authorization of the corporation as a foreign medical corporation;

(4) Furnishing satisfactory proof to the board that all of the medical corporation’s shareholders are licensed physicians, podiatric physicians, or physician assistants in one or more states and submitting a complete list of the shareholders, including each shareholder’s name, their state or states of licensure, and their license number(s); and

(5) Submitting applicable fees which are not refundable.

(d) Notice of certificate of authorization to Secretary of State. — When the board issues a certificate of authorization to a medical corporation, then the board shall notify the Secretary of State that a certificate of authorization has been issued. When the Secretary of State receives a notification from the board, he or she shall attach that certificate of authorization to the corporation application and, upon compliance by the corporation with the pertinent provisions of this code, shall notify the incorporators that the medical corporation, through licensed physicians, podiatrists, and/or physician assistants may engage in the practice of medicine, surgery, or the practice of podiatry in West Virginia.

(e) Authorized practice of medical corporation. — An authorized medical corporation may only practice medicine and surgery through individual physicians, podiatric physicians, or physician assistants licensed to practice medicine and surgery in this state. Physicians, podiatric physicians, and physician assistants may be employees rather than shareholders of a medical corporation, and nothing herein requires a license for or other legal authorization of, any individual employed by a medical corporation to perform services for which no license or other legal authorization is otherwise required.

(f) Renewal of certificate of authorization. — A medical corporation holding a certificate of authorization shall register biennially, on or before the expiration date on its certificate of authorization, on a form prescribed by the board, and pay a biennial fee. If a medical corporation does not timely renew its certificate of authorization, then its certificate of authorization automatically expires.

(g) Renewal for expired certificate of authorization. — A medical corporation whose certificate of authorization has expired may reapply for a certificate of authorization by submitting a new application and application fee in conformity with subsection (b) or (c) of this section.

(h) Ceasing operation - In-state medical corporation. — A medical corporation formed in this state and holding a certificate of authorization shall cease to engage in the practice of medicine, surgery, or podiatry when notified by the board that:

(1) One of its shareholders is no longer a duly licensed physician, podiatric physician, or physician assistant in this state; or

(2) The shares of the medical corporation have been sold or transferred to a person who is not licensed by the board or the Board of Osteopathic Medicine. The personal representative of a deceased shareholder shall have a period, not to exceed 12 months from the date of the shareholder’s death, to transfer the shares. Nothing herein affects the existence of the medical corporation or its right to continue to operate for all lawful purposes other than the professional practice of licensed physicians, podiatric physicians, and physician assistants.

(i) Ceasing operation - Out-of-state medical corporation. — A medical corporation formed outside of this state and holding a certificate of authorization shall immediately cease to engage in practice in this state if:

(1) The corporate shareholders no longer include at least one shareholder who is licensed to practice in this state pursuant to this article;

(2) The corporation is notified that one of its shareholders is no longer a licensed physician, podiatric physician, or physician assistant; or

(3) The shares of the medical corporation have been sold or transferred to a person who is not a licensed physician, podiatric physician, or physician assistant. The personal representative of a deceased shareholder shall have a period, not to exceed 12 months from the date of the shareholder’s death, to transfer the shares. In order to maintain its certificate of authorization to practice medicine and surgery, podiatric medicine, or to perform medical acts through one or more physician assistants during the 12-month period, the medical corporation shall, at all times, have at least one shareholder who is licensed in this state pursuant to this article. Nothing herein affects the existence of the medical corporation or its right to continue to operate for all lawful purposes other than the professional practice of licensed physicians, podiatric physicians, and physician assistants.

(j) Notice to Secretary of State. — Within 30 days of the expiration, revocation, or suspension of a certificate of authorization by the board, the board shall submit written notice to the Secretary of State.

(k) Unlawful acts. — It is unlawful for any corporation to practice or offer to practice medicine, surgery, podiatric medicine, or to perform medical acts through one or more physician assistants after its certificate of authorization has expired or been revoked, or if suspended, during the term of the suspension.

(l) Application of section. — Nothing in this section is meant or intended to change in any way the rights, duties, privileges, responsibilities, and liabilities incident to the physician-patient or podiatrist-patient relationship, nor is it meant or intended to change in any way the personal character of the practitioner-patient relationship. Nothing in this section shall be construed to require a hospital licensed pursuant to §16-5B-1 et seq. of this code to obtain a certificate of authorization from the board so long as the hospital does not exercise control of the independent medical judgment of physicians and podiatric physicians licensed pursuant to this article.

(m) Court evidence. — A certificate of authorization issued by the board to a corporation to practice medicine and surgery, podiatric medicine, or to perform medical acts through one or more physician assistants in this state that has not expired, been revoked, or suspended is admissible in evidence in all courts of this state and is prima facie evidence of the facts stated therein.

(n) Penalties. — Any officer, shareholder, or employee of a medical corporation who violates this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 per violation.

§30-3-16. Educational Permit.

(a) Beginning July 1, 2019, no person shall participate in a program of graduate medical training in this state unless such person holds a license to practice medicine and surgery in this state or has been issued an educational permit issued by the board.

(b) An educational permit issued by the board authorizes the recipient to practice medicine and surgery only within the parameters of the recipient’s training program.  

(c) An applicant for an educational permit shall file an application with the board and furnish evidence establishing that the applicant has satisfied the following requirements:

(1) The applicant is eighteen years of age or over;

(2) The applicant has paid the applicable fee;

(3) The applicant is of good moral character;

(4) The applicant has:

(A) Graduated from an allopathic college approved by the Liaison Committee on Medical Education;

(B) Graduated from a medical college that meets requirements for certification by the Educational Commission for Foreign Medical Graduates; or

(C) Completed an alternate pathway for meeting initial entry requirements or prerequisite or transfer requirements recognized by the Accreditation Council for Graduate Medical Education;

(5) The applicant:

(A) Is under contract as a resident in a program of post-graduate clinical training approved by the Accreditation Council for Graduate Medical Education; or

(B) Has completed a residency program approved by the Accreditation Council for Graduate Medical Education or a residency program recognized by the Educational Commission for Foreign Medical Graduates and is under contract as a fellow in an approved program of post-graduate clinical training sponsored by an institution that is accredited to provide graduate medical education;

(6) The applicant has never held a license to practice medicine and surgery in West Virginia; and

(7) The applicant has fulfilled any other reasonable requirement specified in rule by the Board.

(d) An educational permit shall be valid for up to one year of post-graduate training. An educational permit may be renewed if the holder remains eligible to receive a renewed permit.

(e) The Board may deny an application or suspend or revoke a permit at any time upon grounds defined by the board by legislative rule.

(f) In order to give timely effect to this section, the board may promulgate emergency rules pursuant to the provisions of §29A-3-15 of this code, including:

 (1) An implementation schedule for the issuance of educational permits prior to July 1, 2019;

(2) The extent to which residents and fellows may practice medicine and surgery pursuant to an educational permit;

(3) Criteria for the issuance of reciprocal educational permits for out of state allopathic medical residents seeking to complete a residency rotation in West Virginia;

(4) Requirements for educational permits and the renewal of such permits, including eligibility criteria for renewal;

(5)  Criteria for when an educational permit application may be denied;

(6) Grounds for permit suspension or revocation;

(7) A fee schedule;

(8) Procedures for transitioning existing medical education trainees prior to implementation; and

(9) Any other rules necessary to effectuate and implement the provisions of this section.

§30-3-16a.

Repealed.

Acts, 2014 Reg. Sess., Ch. 142.

§30-3-17. Limitation of article.

The practice of medicine and surgery by persons possessing the degree of doctor of osteopathy and authorized by the laws of this state to practice medicine and surgery shall in no way be affected by the provisions of this article.

§30-3-18. Combining staff functions with West Virginia Board of Osteopathic Medicine.

The West Virginia Board of Medicine may employ investigators, attorneys, clerks and administrative staff in collaboration with the West Virginia Board of Osteopathic Medicine to share duties and functions between the two boards when it may be efficient and practical for the functioning of the boards. Any sharing of staff or staff resources shall be documented and performed pursuant to the provisions of section nineteen, article one of this chapter.

§30-3A-1. Definitions.

For the purposes of this article, the words or terms defined in this section have the meanings ascribed to them. These definitions are applicable unless a different meaning clearly appears from the context.

“Accepted guideline” is a care or practice guideline for pain management developed by a nationally recognized clinical or professional association or a specialty society or government-sponsored agency that has developed practice or care guidelines based on original research or on review of existing research and expert opinion. An accepted guideline also includes policy or position statements relating to pain management issued by any West Virginia board included in §30-1-1 et seq. of this code with jurisdiction over various health care practitioners. Guidelines established primarily for purposes of coverage, payment, or reimbursement do not qualify as accepted practice or care guidelines when offered to limit treatment options otherwise covered by the provisions of this article.

“Board” or “licensing board” means the West Virginia Board of Medicine, the West Virginia Board of Osteopathy, the West Virginia Board of Registered Nurses, the West Virginia Board of Pharmacy, the West Virginia Board of Optometry, or the West Virginia Board of Dentistry.

“Nurse” means a registered nurse licensed in the State of West Virginia pursuant to the provisions of §30-7-1 et seq. of this code.

“Pain” means an unpleasant sensory and emotional experience associated with actual or potential tissue damage or described in terms of such damage.

“Pain-relieving controlled substance” includes, but is not limited to, an opioid or other drug classified as a Schedule II through V controlled substance and recognized as effective for pain relief, and excludes any drug that has no accepted medical use in the United States or lacks accepted safety for use in treatment under medical supervision including, but not limited to, any drug classified as a Schedule I controlled substance.

“Pharmacist” means a registered pharmacist licensed in the State of West Virginia pursuant to the provisions of §30-5-1 et seq. of this code.

 “Prescriber” shall mean:

(1) A physician licensed pursuant to the provisions of §30-3-1 et seq. or §30-14-1 et seq. of this code;

(2) An advanced practice registered nurse with prescriptive authority as set forth in §30-7-15a of this code;

(3) A dentist licensed pursuant to the provisions of §30-4-1 et seq. of this code; and

(4) An optometrist licensed pursuant to the provisions of §30-8-1 et seq. of this code.

§30-3A-2. Limitation on disciplinary sanctions or criminal punishment related to management of pain.

(a) A prescriber is not subject to disciplinary sanctions by a licensing board or criminal punishment by the state for prescribing, administering, or dispensing pain-relieving controlled substances for the purpose of alleviating or controlling pain if:

(1) In the case of a dying patient experiencing pain, the prescriber practices in accordance with an accepted guideline as defined in §30-3A-1 of this code and discharges his or her professional obligation to relieve the dying patient’s pain and promote the dignity and autonomy of the dying patient; or

(2) In the case of a patient who is not dying and is experiencing pain, the prescriber discharges his or her professional obligation to relieve the patient’s pain, if the prescriber can demonstrate by reference to an accepted guideline that his or her practice substantially complied with that accepted guideline. Evidence of substantial compliance with an accepted guideline may be rebutted only by the testimony of a clinical expert. Evidence of noncompliance with an accepted guideline is not sufficient alone to support disciplinary or criminal action.

 (b) A health care provider, as defined in §55-7B-2 of this code, with prescriptive authority is not subject to disciplinary sanctions by a licensing board or criminal punishment by the state for declining to prescribe, or declining to continue to prescribe, any controlled substance to a patient which the health care provider with prescriptive authority is treating if the health care provider with prescriptive authority in the exercise of reasonable prudent judgment believes the patient is misusing the controlled substance in an abusive manner or unlawfully diverting a controlled substance legally prescribed for their use.

(c) A licensed registered professional nurse is not subject to disciplinary sanctions by a licensing board or criminal punishment by the state for administering pain-relieving controlled substances to alleviate or control pain, if administered in accordance with the orders of a licensed physician.

(d) A licensed pharmacist is not subject to disciplinary sanctions by a licensing board or criminal punishment by the state for dispensing a prescription for a pain-relieving controlled substance to alleviate or control pain, if dispensed in accordance with the orders of a licensed physician.

(e) For purposes of this section, the term “disciplinary sanctions” includes both remedial and punitive sanctions imposed on a licensee by a licensing board, arising from either formal or informal proceedings.

(f) The provisions of this section apply to the treatment of all patients for pain, regardless of the patient’s prior or current chemical dependency or addiction. The board may develop and issue policies or guidelines establishing standards and procedures for the application of this article to the care and treatment of persons who are chemically dependent or addicted.

§30-3A-3. Acts subject to discipline or prosecution.

(a) Nothing in this article shall prohibit disciplinary action or criminal prosecution of a prescriber for:

(1) Failing to maintain complete, accurate, and current records documenting the physical examination and medical history of the patient, the basis for the clinical diagnosis of the patient, and the treatment plan for the patient;

(2) Writing a false or fictitious prescription for a controlled substance scheduled in §60A-2-201 et seq. of this code; or

(3) Prescribing, administering, or dispensing a controlled substance in violation of the provisions of the federal Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§801, et seq. or chapter §60A-1-101 et seq. of this code;

(4) Diverting controlled substances prescribed for a patient to the physician’s own personal use or

(5) Abnormal or unusual prescribing or dispensing patterns, or both as identified by the Controlled Substance Monitoring Program set forth in §60A-9-1 et seq. of this code.  These prescribing and dispensing patterns may be discovered in the report filed with the appropriate board as required by section §60A-9-1 et seq. of this code.  

(b) Nothing in this article shall prohibit disciplinary action or criminal prosecution of a nurse or pharmacist for:

(1) Administering or dispensing a controlled substance in violation of the provisions of the federal Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§801, et seq. or §60A-1-101 of this code; or

(2) Diverting controlled substances prescribed for a patient to the nurse’s or pharmacist’s own personal use.

§30-3A-4. Abnormal or unusual prescribing practices.

 (a) Upon receipt of the quarterly report set forth in §60A-9-1 et seq. of this code, the licensing board shall notify the prescriber that he or she has been identified as a potentially unusual or abnormal prescriber.  The board may take appropriate action, including, but not limited to, an investigation or disciplinary action based upon the findings provided in the report.  

 (b) A licensing board may upon receipt of credible and reliable information independent of the quarterly report as set forth in §60A-9-1 et seq. of this code initiate an investigation into any alleged abnormal prescribing or dispensing practices of a licensee.

(c) The licensing boards and prescribers shall have all rights and responsibilities in their practice acts.

§30-3B-1.

Repealed.

Acts, 1984 Reg. Sess., Ch. 75.

§30-3C-1. Definitions.

As used in this article:

"Document" means any information, data, reports, or records prepared by or on behalf of a health care provider and includes mental impressions, analyses, and/or work product.

 "Health care facility" means any clinic, hospital, pharmacy, nursing home, assisted living facility, residential care community, end-stage renal disease facility, home health agency, child welfare agency, group residential facility, behavioral health care facility or comprehensive community mental health center, intellectual/developmental disability center or program, or other ambulatory health care facility in and licensed, regulated, or certified by the State of West Virginia under state or federal law and any state-operated institution or clinic providing health care and any related entity to the health care facility as that term is defined in §55-7B-1 et seq. of this code.

 "Health care provider" means a person, partnership, corporation, professional limited liability company, health care facility, entity or institution licensed by, or certified in, this state or another state, to provide health care or professional health care services, including a physician, osteopathic physician, physician’s assistant, advanced practice registered nurse, health care facility, dentist, registered or licensed practical nurse, optometrist, podiatrist, chiropractor, physical therapist, speech-language pathologist, audiologist, occupational therapist, psychologist, pharmacist, technician, certified nursing assistant, emergency medical services personnel, emergency medical services authority or agency, any person supervised by or acting under the direction of a licensed professional, any person taking actions or providing service or treatment pursuant to or in furtherance of a physician’s plan of care, a health care facility’s plan of care, medical diagnosis, or treatment; or an officer, employee, or agent of a health care provider acting in the course and scope of the officer’s, employee’s, or agent’s employment.

"Peer review" means the procedure for evaluation by health care providers of the quality, delivery, and efficiency of services ordered or performed by other health care professionals, including practice analysis, inpatient hospital and extended care facility utilization review, medical audit, ambulatory care review, claims review and patient safety review, preparation for or simulation of audits or surveys of any kind, and all forms of quality assurance/performance improvement whether or not required by any statute, rule, or regulation applicable to a health care facility or health care provider.

 "Review organization" means any committee, organization, individual, or group of individuals engaging in peer review, including, without limitation, a hospital medical executive committee and/or subcommittee thereof, a hospital utilization review committee, a hospital tissue committee, a medical audit committee, a health insurance review committee, a health maintenance organization review committee, hospital, medical, dental, and health service corporation review committee, a hospital plan corporation review committee, a professional health service plan review committee or organization, a dental review committee, a physicians" advisory committee, a podiatry advisory committee, a nursing advisory committee, any committee or organization established pursuant to a medical assistance program, the Joint Commission on Accreditation of Health Care Organizations or similar accrediting body or any entity established by such accrediting body or to fulfill the requirements of such accrediting body, any entity established pursuant to state or federal law for peer review purposes, and any committee established by one or more state or local professional societies or institutes, to gather and review information relating to the care and treatment of patients for the purposes of: (i) Evaluating and improving the quality of health care rendered; (ii) reducing morbidity or mortality; or (iii) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care. It shall also mean any hospital board committee or organization reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto, and any professional standards review organizations established or required under state or federal statutes or regulations.

§30-3C-2. Immunity from liability.

(a) Notwithstanding any other provision of law, no person providing information to any review organization shall be held, by reason of having provided such information, to be civilly liable under any law, unless:

(1) Such information is unrelated to the performance of the duties and functions of such review organization, or (2) such information is false and the person providing such information knew, or had reason to believe, that such information was false.

(b) A review organization or any member, agent or employee thereof who, in the absence of malice and gross negligence, acts upon or furnishes counsel, services or information to a review organization shall be immune from liability for loss or injury to the person whose activities are being reviewed.

§30-3C-3. Confidentiality of records.

(a) Any document prepared by or on behalf of a health care provider for the purpose of improving the quality, delivery, or efficiency of health care or for the purpose of credentialing or reviewing health care providers is confidential and privileged and shall not be subject to discovery in a civil action or administrative proceeding.  Such documents include, without limitation:

(1) Nursing home, as referred to in §55-7B-6(e) of this code, incident or event reports, except reports pertaining to the plaintiff of that civil action, or reports of same or similar incidents within a reasonable time frame of the events at issue in the civil action, containing only factual information, but excluding personal identification information;

(2) Documents related to review organization proceedings for hiring, disciplining, terminating, credentialing, issuing staff privileges, renewing staff privileges, or alleged misconduct of a health care provider;

(3) Review organization documents;

(4) Quality control and performance improvement documents;

(5) Documents satisfying regulatory obligations related to quality assurance and performance improvement; and

(6) Reviews, audits, and recommendations of consultants or other persons or entities engaged in the performance of peer review.

(b) A person who testifies before a review organization, or who is a member of a review organization, shall not be required to testify regarding, or be asked about, his or her testimony before such review organization, deliberations of the review organization, or opinions formed as a result of the review organization’s proceedings. A person who testifies before a review organization, or who is a member of a review organization, shall not be prevented from testifying in court or an administrative hearing as to matters within his or her personal knowledge.

(c)  All peer review proceedings, communications, and documents of a review organization and all records developed or obtained during an investigation conducted pursuant to §30-3-1 et seq., §30-3E-1 et seq., and/or §30-14-1 et seq. of this code shall be confidential and privileged and shall not be subject to discovery in any civil action or administrative proceeding: Provided, That an individual may be given access to any document that was used as the basis for an adverse professional review action against him or her, subject to such protective order as may be appropriate to maintain the confidentiality of the information contained therein. Privilege is not deemed to be waived unless the review organization executes a written waiver authorizing the release of such peer review proceedings, communications, or documents.

(d) Nothing in this section limits the disclosure of peer review proceedings, communications, and documents by a review organization or a health care facility to a medical licensing board pursuant to the provisions of §30-3-1 et seq. and §30-14-1 et seq. of this code.

§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.

§30-3D-1. Definitions.

For the purposes of this article, the following words and terms have the meanings ascribed to them, unless the context clearly indicates otherwise.

(1) "Boards" mean the West Virginia Board of Medicine and Board of Osteopathy.

(2) "Major mental illness" means a diagnosis of a mental disorder within the axis of psychotic or affective or mood, or alcohol or chemical abuse, or alcohol or chemical dependency, as stipulated in the International Code of Diagnosis.

(3) "Physician and physician assistant" mean those health care professionals licensed by the West Virginia Board of Medicine or the West Virginia Board of Osteopathy.

(4) "Podiatrist" means those individuals licensed by the West Virginia Board of Medicine to undertake the practice of podiatry.

(5) "Qualifying illness" means the diagnosis of alcohol or substance abuse or alcohol or substance dependency or major mental illness.

§30-3D-2. Physician health program.

(a) The boards are authorized to designate one or more physician health programs. To be eligible for designation by the boards, a physician health program shall:

(1) Agree to make their services available to all licensed West Virginia physicians, podiatrists and physicians' assistants with a qualifying illness;

(2) Provide for the education of physicians, podiatrists and physicians' assistants with respect to the recognition and treatment of alcohol, chemical dependency and mental illness and the availability of the physician health program for qualifying illnesses;

(3) Offer assistance to any person in referring a physician, podiatrist or physicians' assistant for purposes of assessment or treatment or both for a qualifying illness;

(4) Monitor the status of a physician, podiatrist or physicians' assistant who enters treatment for a qualifying illness pursuant to a written, voluntary agreement during treatment;

(5) Monitor the compliance of a physician, podiatrist or physicians' assistant who enters into a written, voluntary agreement for a qualifying illness with the physician health program setting forth a course for recovery;

(6) Agree to accept referrals from the boards to provide monitoring services pursuant to a board order; and

(7) Include such other requirements as the boards deem necessary.

(b) A designated physician health program shall:

(1) Set and collect reasonable fees, grants and donations for administration and services provided;

(2) Work collaboratively with the boards to develop model compliance agreements;

(3) Work collaboratively with the boards to identify qualified providers of services as may be needed by the individuals participating in the physician health program;

(4) Report to the boards no less than annually, statistics including the number of individuals served by license held; the number of compliant individuals; the number of individuals who have successfully completed their agreement period; and the number of individuals reported to a particular board for suspected noncompliance: Provided, That in making such report the physician health program shall not disclose any personally identifiable information relating to any physician, podiatrist or physician assistant participating in a voluntary agreement as provided herein.

(c) The fact that a physician, physician's assistant or podiatrist is participating in a designated physician health program is confidential, as is all physicians, podiatrists or physicians assistants patient information, acquired, created or used by the physician health program, and it shall remain confidential and may not be subject to discovery or subpoena in a civil case. The disclosure of participation and noncompliance to the appropriate board, as required by a compliance agreement, waives the confidentiality as to the appropriate board for disciplinary purposes.

(d) The physician health program and all persons engaged in physician health program activities are immune from civil liability and no civil action may be brought or maintained while the physician health program and all persons engaged in physician health program activities are acting in good faith and within the scope of their duties.

(e) The boards are immune from civil liability and no civil action may be brought or maintained against the boards or the state for an injury alleged to have been the result of the activities of the physician health program or the boards referral of an individual to the physician health program when they are acting in good faith and within the scope of their duties.

§30-3D-3. Discretionary authority of boards to designate programs.

The West Virginia Board of Medicine and the West Virginia Board of Osteopathy have the sole discretion to designate physician health programs for licensees of the respective boards and no provision of this article may be construed to entitle any physician, podiatrist or physician assistant to the creation or designation of a physician health program for any individual qualifying illness or group of qualifying illnesses.

§30-3E-1. Definitions.

As used in this article:

“Approved program” means an educational program for physician assistants approved and accredited by the Accreditation Review Commission on Education for the Physician Assistant or its successor. Prior to 2001, approval and accreditation would have been by either the Committee on Allied Health Education and Accreditation or the Commission on Accreditation of Allied Health Education Programs.

“Boards” means the West Virginia Board of Medicine and the West Virginia Board of Osteopathic Medicine.

“Chronic condition” means a condition which lasts three months or more, generally cannot be prevented by vaccines, can be controlled but not cured by medication, and does not generally disappear. These conditions include, but are not limited to, arthritis, asthma, cardiovascular disease, cancer, diabetes, epilepsy and seizures, and obesity.

“Collaborating physician” means a doctor of medicine, osteopathy, or podiatry fully licensed, by the appropriate board in this state, without restriction or limitation, who collaborates with physician assistants.

“Collaboration” means overseeing the activities of the medical services rendered by a physician assistant. Constant physical presence of the collaborating physician is not required as long as the collaborating physician and physician assistant are, or can be, easily in contact with one another by telecommunication. Collaboration does not require the personal presence of the collaborating physician at the place or places where services are rendered.

“Endorsement” means a summer camp or volunteer endorsement authorized under this article.

“Health care facility” means any licensed hospital, nursing home, extended care facility, state health or mental institution, clinic, or physician office.

“License” means a license issued by either of the boards pursuant to the provisions of this article.

“Licensee” means a person licensed pursuant to the provisions of this article.

“Physician” means a doctor of allopathic or osteopathic medicine who is fully licensed pursuant to the provisions of either §30-3-1 et seq. or §30-14-1 et seq. of this code to practice medicine and surgery in this state.

“Physician assistant” means a person who meets the qualifications set forth in this article and is licensed pursuant to this article to practice medicine with a collaborating physician.

“Practice notification” means a written notice to the appropriate licensing board that a physician assistant will practice in collaboration with one or more collaborating physicians in the state of West Virginia.

§30-3E-2. Powers and duties of the boards.

In addition to the powers and duties set forth in this code for the boards, the boards shall:

(1) Establish the requirements for licenses and temporary licenses pursuant to this article;

(2) Establish the procedures for submitting, approving, and rejecting applications for licenses and temporary licenses;

(3) Propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code to implement the provisions of this article;

(4) Compile and publish an annual report that includes a list of currently licensed physician assistants and their primary practice locations in the state; and

(5) Take all other actions necessary and proper to effectuate the purposes of this article.

§30-3E-3. Rulemaking.

(a) The boards shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code to implement the provisions of this article, including:

(1) The extent to which physician assistants may practice in this state;

(2) The extent to which physician assistants may pronounce death;

(3) Requirements for licenses and temporary licenses;

(4) Requirements for practice notifications;

(5) Requirements for continuing education;

(6) Conduct of a licensee for which discipline may be imposed;

(7) The eligibility and extent to which a physician assistant may prescribe;

(8) A fee schedule; and

(9) Any other rules necessary to effectuate the provisions of this article.

(b) The boards may propose emergency rules pursuant to §29A-3-1 et seq. of this code to ensure conformity with this article.

(c) (1) A physician assistant may not prescribe a Schedule I controlled substance as provided in §60A-2-204 of this code.

(2) A physician assistant may prescribe up to a three-day supply of a Schedule II narcotic as provided in §60A-2-206 of this code.

(3) There are no other limitations on the prescribing authority of a physician assistant, except as provided in §16-54-1 et seq. of this code.

§30-3E-4. License to practice as a physician assistant.

(a) A person seeking licensure as a physician assistant shall apply to the Board of Medicine or to the Board of Osteopathic Medicine. The appropriate board shall issue a license to practice as a physician assistant with the collaboration of that board’s licensed physicians or podiatrists.

(b) A license may be granted to a person who:

(1) Files a complete application;

(2) Pays the applicable fees;

(3) Demonstrates to the board’s satisfaction that he or she:

(A) Obtained a baccalaureate or master’s degree from an accredited program of instruction for physician assistants;

(B) Prior to July 1, 1994, graduated from an approved program of instruction in primary health care or surgery; or

(C) Prior to July 1, 1983, was certified by the Board of Medicine as a physician assistant then classified as Type B;

(4) Has passed the Physician Assistant National Certifying Examination administered by the National Commission on Certification of Physician Assistants;

(5) Has a current certification from the National Commission on Certification of Physician Assistants or has a current license in good standing from a state that does not require a physician assistant to maintain national certification;

(6) Is mentally and physically able to engage safely in practice as a physician assistant;

(7) Has not had a physician assistant license, certification, or registration in any jurisdiction suspended or revoked;

(8) Is not currently subject to any limitation, restriction, suspension, revocation, or discipline concerning a physician assistant license, certification, or registration in any jurisdiction: Provided, That if a board is made aware of any problems with a physician assistant license, certification, or registration and agrees to issue a license, certification, or registration notwithstanding the provisions of this subdivision or subdivision (7) of this subsection;

(9) Is of good moral character; and

(10) Has fulfilled any other requirement specified by the appropriate board.

(c) A board may deny an application for a physician assistant license to any applicant determined to be unqualified by the board.

§30-3E-5. Temporary license.

(a) A temporary license may be issued by the boards to a person applying for a license under this article, if the person meets all of the qualifications for a license but is awaiting the next scheduled meeting of the board for action upon his or her application.

(b) The temporary license expires six months after issuance or after the board acts, whichever is earlier.

§30-3E-6.  License renewal requirements.

(a) A licensee shall renew biennially, on a schedule established by the appropriate licensing board, by submitting:

(1) A complete renewal application;

(2) The renewal fee; and

(3) An attestation that all continuing education requirements for the reporting period have been met.

(b) If a licensee fails to timely renew his or her license, then the license automatically expires.

§30-3E-7.  Expired license requirements.

(a) If a license automatically expires and reinstatement is sought within one year of the automatic expiration, then an applicant shall submit:

(1) A complete reinstatement application;

(2) The applicable fees;

(3) Proof that he or she has passed Physician Assistant National Certifying Examination; and

(4) An attestation that all continuing education requirements have been met.

(b) If a license automatically expires and more than one year has passed since the automatic expiration, then an applicant shall apply for a new license.

§30-3E-8

Repealed

Acts, 2017 Reg. Sess., Ch.

§30-3E-9. Practice requirements.

(a) A physician assistant may not practice independent of a collaborating physician.

(b) A physician assistant may practice in collaboration with physicians in any practice setting pursuant to a practice notification which has been filed with, and activated by, the appropriate board in accordance with §30-3E-10a of this code: Provided, That a physician assistant who is currently practicing in collaboration with physicians pursuant to a practice agreement which was authorized by a board prior to June 1, 2021, may continue to practice under that authorization until the practice agreement terminates or until June 1, 2022, whichever is sooner.

(c) Notwithstanding any other provision of this code to the contrary, and to the degree permitted by federal law, physician assistants shall be considered providers and shall not be reimbursed at rates lower than other providers who render similar health services by health insurers as well as health plans operated or paid for by the state.

§30-3E-10. Practice agreement requirements.

[Repealed.]

§30-3E-11. Collaboration with physician assistants.

(a) Unless otherwise prohibited by a health care facility, a physician who practices medicine or podiatry at a health care facility may collaborate with any physician assistant who holds an active practice notification with the same facility.

(b) When collaborating with physician assistants, collaborating physicians shall observe, direct, and evaluate the physician assistant’s work, records, and practices as necessary for appropriate and meaningful collaboration.

(c) A health care facility is only legally responsible for the actions or omissions of a physician assistant when the physician assistant is employed by or on behalf of the facility.

(d) Every licensed physician assistant shall be individually responsible and liable for the care they provide. This article does not relieve physician assistants or collaborating physicians of responsibility and liability which otherwise may exist for acts and omissions occurring during collaboration.

§30-3E-12. Scope of practice.

(a) A license issued to a physician assistant by the appropriate state licensing board shall authorize the physician assistant to perform medical acts commensurate with their education, training, and experience and which they are competent to perform, consistent with the rules of the boards. Medical acts include prescribing, dispensing, and administering of controlled substances, prescription drugs, or medical devices.

(b) A physician assistant shall provide only those medical services for which they have been prepared by their education, training, and experience and are competent to perform, consistent with sound medical practice and that will protect the health and safety of the patient. This may occur in any health care setting, both hospital and outpatient in accordance with their practice notification.

(c) A physician assistant with an active practice notification may perform medical acts and/or procedures in collaboration with physicians which are consistent with the physician assistant’s education, training and experience, the collaborating physician’s scope of practice, and any credentialing requirements of the health care facility where the physician assistant holds an active practice notification.

(d) This article does not authorize a physician assistant to perform any specific function or duty delegated by this code to those persons licensed as chiropractors, dentists, dental hygienists, optometrists, or pharmacists, or certified as nurse anesthetists.

§30-3E-12a.  Physician assistant signatory authority.

(a) A physician assistant may provide an authorized signature, certification, stamp, verification, affidavit or endorsement on documents within the scope of their practice, including, but not limited to, the following documents:

(1) Death certificates: Provided, That the physician assistant has received training on the completion of death certificates;

(2) “Physician orders for life sustaining treatment”, “physician orders for scope of treatment” and “do not resuscitate” forms;

(3) Handicap hunting certificates; and

(4) Utility company forms requiring maintenance of utilities regardless of ability to pay.

(b) A physician assistant may not sign a certificate of merit for a medical malpractice claim against a physician.

§30-3E-13. Identification.

(a) While practicing, a physician assistant shall wear a name tag that identifies him or her as a physician assistant.

(b) A physician assistant shall keep his or her license and current practice notification available for inspection at his or her place of practice.

§30-3E-14. Special volunteer physician assistant license.

(a) A special volunteer physician assistant license may be issued to a physician assistant who:

(1) Is retired or is retiring from the active practice of medicine; and

(2) Wishes to donate his or her expertise for the medical care and treatment of indigent and needy patients in the clinical setting of clinics organized, in whole or in part, for the delivery of health care services without charge.

(b) The special volunteer physician assistant license shall be issued by the appropriate licensing board:

(1) To a physician assistant licensed or otherwise eligible for licensure under this article;

(2) Without the payment of any fee; and

(3) The initial license shall be issued for the remainder of the licensing period.

(c) The special volunteer physician assistant license shall be renewed consistent with the appropriate licensing board’s other licensing requirements.

(d) The appropriate licensing board shall develop application forms for the special volunteer physician assistant license which shall contain the physician assistant’s acknowledgment that:

(1) The physician assistant’s practice under the special volunteer physician assistant license shall be exclusively devoted to providing medical care to needy and indigent persons in West Virginia;

(2) The physician assistant will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation, for any medical services rendered under the special volunteer physician assistant license;

(3) The physician assistant shall supply any supporting documentation that the appropriate licensing board may reasonably require; and

(4) The physician assistant agrees to continue to participate in continuing education as required by the appropriate licensing board for the special volunteer physician assistant license.

(e) A physician assistant and his or her collaborating physician who render medical 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 physician assistant license, without payment or compensation or the expectation or promise of payment or compensation, are immune from liability for any civil action arising out of any act or omission resulting from the rendering of the medical service at the clinic unless the act or omission was the result of the physician assistant’s and his or her collaborating physician’s gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there shall be a written agreement between the physician assistant and the clinic pursuant to which the physician assistant shall provide voluntary uncompensated medical services under the control of the clinic to patients of the clinic before the rendering of any services by the physician assistant at the clinic. Any clinic entering into a written agreement is required to maintain liability coverage of not less than $1 million per occurrence.

(f) Notwithstanding the provisions 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 a physician assistant rendering voluntary medical services at or for the clinic under a special volunteer physician assistant license.

(g) For purposes of this section, “otherwise eligible for licensure” means the satisfaction of all the requirements for licensure under this article, except the fee requirements.

(h) Nothing in this section may be construed as requiring the appropriate licensing board to issue a special volunteer physician assistant license to any physician assistant whose license is or has been subject to any disciplinary action or to any physician assistant who has surrendered a physician assistant license or caused his or her license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her license, or who has elected to place a physician assistant license in inactive status in lieu of having a complaint initiated or other action taken against his or her license, or who has been denied a physician assistant license.

(i) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any physician assistant covered under the provisions of this article shall be read so as to contain a provision or endorsement whereby the company issuing the 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 the 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 a physician assistant who holds a special volunteer physician assistant license.

§30-3E-15.  Summer camp or volunteer endorsement — West Virginia licensee.

(a) The appropriate licensing board may grant a summer camp or volunteer endorsement to provide services at a children’s summer camp or volunteer services for a public or community event to a physician assistant who:

(1) Is currently licensed by the appropriate licensing board;

(2) Has no current discipline, limitations or restrictions on his or her license;

(3) Has submitted a timely application; and

(4) Attests that:

(A) The organizers of the summer camp and public or community event have arranged for a collaborating physician to be available as needed to the physician assistant;

(B) The physician assistant shall limit his or her scope of practice to medical acts which are within his or her education, training and experience; and

(C) The physician assistant will not prescribe any controlled substances or legend drugs as part of his or her practice at the summer camp or public or community event.

(b) A physician assistant may only receive one summer camp or volunteer endorsement annually. The endorsement is active for one specifically designated period annually, which period cannot exceed three weeks.

(c) A fee cannot be assessed for the endorsement if the physician assistant is volunteering his or her services without compensation or remuneration.

§30-3E-16.  Summer camp or volunteer endorsement — Out-of-state licensee.

(a) The appropriate licensing board may grant a summer camp or volunteer endorsement to provide services at a children’s summer camp or volunteer services for a public or community event to a physician assistant licensed from another jurisdiction who:

(1) Is currently licensed in another jurisdiction and has a current certification from the National Commission on Certification of Physician Assistants;

(2) Has no current discipline, limitations or restrictions on his or her license;

(3) Has passed the Physician Assistant National Certifying Examination administered by the National Commission on Certification of Physician Assistants;

(4) Has submitted a timely application;

(5) Has paid the applicable fees; and

(6) Attests that:

(A) The organizers of the summer camp and public or community event have arranged for a collaborating physician to be available as needed to the physician assistant;

(B) The physician assistant shall limit his or her scope of practice to medical acts which are within his or her education, training and experience; and

(C) The physician assistant will not prescribe any controlled substances or legend drugs as part of his or her practice at the summer camp or public or community event; and

(7) Has fulfilled any other requirements specified by the appropriate board.

(b) A physician assistant may only receive one summer camp or volunteer endorsement annually. The endorsement is active for one specifically designated period annually, which period cannot exceed three weeks.

§30-3E-17. Complaint process.

(a) All hearings and procedures related to denial of a license, and all complaints, investigations, hearings, and procedures regarding a physician assistant license and the discipline accorded thereto, shall be in accordance with the processes and procedures set forth in either §30-3-1 et seq. or §30-14-1 et seq. of this code, depending on which board licenses the physician assistant.

(b) The boards may impose the same discipline, restrictions, and/or limitations upon the license of a physician assistant as they are authorized to impose upon physicians and/or podiatrists.

(c) The boards shall direct to the appropriate licensing board a complaint against a physician assistant and/or a collaborating physician.

(d) In the event that independent complaint processes are warranted by the boards with respect to the professional conduct of a physician assistant or a collaborating physician, the boards are authorized to work cooperatively and to disclose to one another information which may assist the recipient appropriate licensing board in its disciplinary process. The determination of what information, if any, to disclose shall be at the discretion of the disclosing board.

(e) A physician assistant licensed under this article may not be disciplined for providing expedited partner therapy in accordance with §16-4F-1 et seq. of this code.

§30-3E-18. Health care facility reporting requirements.

(a) A health care facility shall report, in writing, to the appropriate licensing board within sixty days after the completion of the facility's formal disciplinary procedure or after the commencement and conclusion of any resulting legal action against a licensee.

(b) The report shall include:

(1) The name of the physician assistant practicing in the facility whose privileges at the facility have been revoked, restricted, reduced or terminated for any cause including resignation;

(2) All pertinent information relating to the action; and

(3) The formal disciplinary action taken against the physician assistant by the facility relating to professional ethics, medical incompetence, medical malpractice, moral turpitude or drug or alcohol abuse.

(c) A health care facility does not need to report temporary suspensions for failure to maintain records on a timely basis or for failure to attend staff or section meetings.

§30-3E-19. Unlawful act and penalty.

It is unlawful for any physician assistant to represent to any person that he or she is a physician, surgeon or podiatrist. A person who violates this section is guilty of a felony and, upon conviction thereof, shall be imprisoned in 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.

§30-3F-1. Definitions.

As used in this section:

(1) “Boards” means the West Virginia Board of Medicine; the West Virginia Board of Osteopathic Medicine, the West Virginia Board of Optometry, West Virginia Board of Physical Therapy, West Virginia Board of Chiropractic, West Virginia Board of Dentistry and the West Virginia Board of Examiners for Registered Professional Nurses;

(2) “Direct medical care membership agreement” means a written contractual agreement between a care provider and a person, or the person’s legal representative;

(3) “Direct medical care provider” means an individual or legal entity, alone or with others professionally associated with the provider or other legal entity, that is authorized to provide medical care services and who chooses to enter into a direct medical care membership agreement;

(4) “Medical products” means any product used to diagnose or manage a disease, including any medical device, treatment or drug;

(5) “Medical services” means a screen, assessment, diagnosis or treatment for the purpose of promotion of health or the detection and management of disease or injury within the competency and training of the direct medical care provider; and

(6) “Medical care provider” means an individual or other legal entity that is authorized to provide medical services and medical products under his or her scope of practice in this state.

§30-3F-2. Direct Medical Care.

(a) A person or a legal representative of a person may seek care outside of an insurance plan, or outside of the Medicaid or Medicare program, and pay for the care.

(b) A medical care provider may accept payment for medical services or medical products outside of an insurance plan.

(c) A medical care provider may accept payment for medical services or medical products provided to a Medicaid or Medicare beneficiary.

(d) A patient or legal representative does not forfeit insurance benefits, Medicaid benefits or Medicare benefits by purchasing medical services or medical products outside the system.

(e) The offer and provision of medical services or medical products purchased and provided under this article is not an offer of insurance nor regulated by the insurance laws of the state.

(f) The direct medical care provider may not bill third parties on a fee for service basis for services provided under the direct medical care membership agreement.

(g) A medical care provider may not bill any third-party payer for services rendered or products sold pursuant to a direct medical care membership agreement.

§30-3F-3. Prohibited and authorized practices.

(a) A direct medical care membership agreement is not insurance and is not subject to regulation by the Office of the Insurance Commission.

(b) A direct medical care provider or its agent is not required to obtain a certification of authority or license under chapter thirty-three to market, sell or offer to sell a direct care agreement.

(c) A direct medical care membership agreement is not a discount medical plan.

(d) A direct medical care membership agreement shall:

(1) Be in writing;

(2) Be signed by the medical care provider or agent of the medical care provider and the individual patient or his or her legal representative;

(3) Allow either party to terminate the agreement on at least 30 days prior written notice to the other party;

(4) Describe the scope of medical care services that are covered by the periodic fee;

(5) Specify the periodic fee and any additional fees outside of the periodic fee for ongoing care under the agreement;

(6) Specify the duration of the agreement and any automatic renewal periods. Any per-visit charges under the agreement will be less than the monthly equivalent of the periodic fee. The person is not required to pay more than twelve months of the fee in advance. Funds are not earned by the practice until the month of ongoing care is completed. Upon discontinuing the agreement all unearned funds are returned to the patient; and

(7) Prominently state in writing that the agreement is not health insurance.

§30-3F-4. Rules.

The boards may propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code, to effectuate the provisions of this article.

§30-3F-5. Violations.

Violations of this article constitute unprofessional conduct and may subject violators to sanctions which may be pursued by the boards.

§30-4-1. Unlawful acts.

(a) It is unlawful for any person to practice or offer to practice dentistry or dental hygiene in this state without a license, issued under the provisions of this article, or advertise or use any title or description tending to convey or give the impression that they are a dentist or dental hygienist, unless the person is licensed under the provisions of this article.

(b) A business entity may not render any service or engage in any activity which, if rendered or engaged in by an individual, would constitute the practice of dentistry, except through a licensee.

§30-4-2. Applicable law.

The practices authorized under the provisions of this article and the Board of Dentistry are subject to article one of this chapter, the provisions of this article and any rules promulgated hereunder.

§30-4-3. Definitions.

As used in §30-4-1 et seq., §30-4A-1 et seq., and §30-4B-1 et seq. of this code, the following words and terms have the following meanings:

"AAOMS" means the American Association of Oral and Maxillofacial Surgeons;

"AAPD" means the American Academy of Pediatric Dentistry;

"ACLS" means advanced cardiac life support;

"ADA" means the American Dental Association;

"AMA" means the American Medical Association;

"ASA" means American Society of Anesthesiologists;

"Anxiolysis/minimal sedation" means removing, eliminating, or decreasing anxiety by the use of a single anxiety or analgesia medication that is administered in an amount consistent with the manufacturer’s current recommended dosage for the unsupervised treatment of anxiety, insomnia, or pain, in conjunction with nitrous oxide and oxygen. This does not include multiple dosing or exceeding current normal dosage limits set by the manufacturer for unsupervised use by the patient at home for the treatment of anxiety;

"Approved dental hygiene program" means a program that is approved by the board and is accredited, or its educational standards are deemed by the board to be substantially equivalent to those required by the Commission on Dental Accreditation of the American Dental Association;

"Approved dental school, college, or dental department of a university" means a dental school, college, or dental department of a university that is approved by the board and is accredited, or its educational standards are deemed by the board to be substantially equivalent to those required by the Commission on Dental Accreditation of the American Dental Association;

"Authorize" means that the dentist is giving permission or approval to dental auxiliary personnel to perform delegated procedures in accordance with the dentist’s diagnosis and treatment plan;

"BLS" means basic life support;

"Board" means the West Virginia Board of Dentistry;

"Business entity" means any firm, partnership, association, company, corporation, limited partnership, limited liability company, or other entity;

"Central nervous system anesthesia" means an induced, controlled state of unconsciousness or depressed consciousness produced by a pharmacologic method;

"Certificate of qualification" means a certificate authorizing a dentist to practice a specialty;

"CPR" means cardiopulmonary resuscitation;

"Conscious sedation/moderate sedation" means an induced, controlled state of depressed consciousness, produced through the administration of nitrous oxide and oxygen and/or the administration of other agents whether enteral or parenteral, in which the patient retains the ability to independently and continuously maintain an airway and to respond purposefully to physical stimulation and to verbal command;

"CRNA" means certified registered nurse anesthetist;

"Defibrillator" means an electronic device that applies an electric shock to the heart to restore the normal functional rhythm of a fibrillating, nonfunctional heart and includes an Automatic Electronic Defibrillator (AED);

"Delegated procedures" means those procedures specified by law or by rule of the board and performed by dental auxiliary personnel under the supervision of a licensed dentist;

"Dentist anesthesiologist" means a dentist who is trained in the practice of anesthesiology and has completed an additional approved anesthesia education course;

"Dental anesthesiology" is the specialty of dentistry and discipline of anesthesiology encompassing the art and science of managing pain, anxiety, and overall patient health during dental, oral, maxillofacial, and adjunctive surgical or diagnostic procedures throughout the entire perioperative period. The specialty is dedicated to promoting patient safety as well as access to care for all dental patients, including the very young and patients with special health care needs;

"Dental assistant" means a person qualified by education, training, or experience who aids or assists a dentist in the delivery of patient care in accordance with delegated procedures as specified by the board by rule or who may perform nonclinical duties in the dental office;

"Dental auxiliary personnel" or "auxiliary" means dental hygienists and dental assistants who assist the dentist in the practice of dentistry;

"Dental hygiene" means the performance of educational, preventive or therapeutic dental services and as further provided in §30-4-11 of this code and legislative rule;

"Dental hygienist" means a person licensed by the board to practice and who provides dental hygiene and other services as specified by the board by rule to patients in the dental office and in a public health setting;

"Dental laboratory" means a business performing dental laboratory services;

"Dental laboratory services" means the fabricating, repairing, or altering of a dental prosthesis;

"Dental laboratory technician" means a person qualified by education, training, or experience who has completed a dental laboratory technology education program and who fabricates, repairs, or alters a dental prosthesis in accordance with a dentist’s work authorization;

"Dental office" means the place where the licensed dentist and dental auxiliary personnel are practicing dentistry;

"Dental prosthesis" means an artificial appliance fabricated to replace one or more teeth or other oral or peri-oral structure in order to restore or alter function or aesthetics;

"Dental public health" is the science and art of preventing and controlling dental diseases and promoting dental health through organized community efforts. It is that form of dental practice which considers the community to be the patient rather than any individual. It is concerned with the dental health education of the public, with applied dental research, and with the administration of group dental care programs as well as the prevention and control of dental diseases on a community basis;

"Dentist" means an individual licensed by the board to practice dentistry;

"Dentistry" means the evaluation, diagnosis, prevention, and treatment, of diseases, disorders, and conditions of the oral cavity and the maxillofacial, adjacent, and associated structures and their impact on the human body;

"Direct supervision" means supervision provided by a licensed dentist who is physically present in the dental office or treatment facility when procedures are being performed;

"Endodontics" is the branch of dentistry which is concerned with the morphology, physiology, and pathology of the human dental pulp and periradicular tissues. Its study and practice encompass the basic and clinical sciences including biology of the normal pulp, the etiology, diagnosis, prevention, and treatment of diseases and injuries of the pulp and associated periradicular conditions;

"Facility permit" means a permit for a facility where sedation procedures are used that correspond with the level of anesthesia provided;

"General anesthesia" means an induced, controlled state of unconsciousness in which the patient experiences complete loss of protective reflexes, as evidenced by the inability to independently maintain an airway, the inability to respond purposefully to physical stimulation or the inability to respond purposefully to verbal command;

"Deep conscious sedation/general anesthesia" includes partial loss of protective reflexes while the patient retains the ability to independently and continuously maintain an airway;

"General supervision" means a dentist is not required to be in the office or treatment facility when procedures are being performed, has personally authorized the procedures to be completed, and will evaluate the treatment provided at a future appointment, by the dental auxiliary personnel;

"Health care provider BLS/CPR" means health care provider basic life support/cardiopulmonary resuscitation;

"License" means a license to practice dentistry or dental hygiene;

"Licensee" means a person holding a license;

"Mobile dental facility" means any self-contained facility in which dentistry or dental hygiene will be practiced which may be moved, towed, or transported from one location to another;

"Portable dental unit" means any non-facility in which dental equipment, utilized in the practice of dentistry, is transported to and utilized on a temporary basis in an out-of-office location, including, but not limited to, patients’ homes, schools, nursing homes, or other institutions;

"Oral medicine" is the specialty of dentistry responsible for the oral health care of medically complex patients and for the diagnosis and management of medically related disorders or conditions affecting the oral and maxillofacial region;

"Oral pathology" is the specialty of dentistry and discipline of pathology that deals with the nature, identification, and management of diseases affecting the oral and maxillofacial regions. It is a science that investigates the causes, processes, and effects of these diseases. The practice of oral pathology includes research and diagnosis of diseases using clinical, radiographic, microscopic, biochemical, or other examinations;

"Oral and maxillofacial radiology" is the specialty of dentistry and discipline of radiology concerned with the production and interpretation of images and data produced by all modalities of radiant energy that are used for the diagnosis and management of diseases, disorders, and conditions of the oral and maxillofacial region;

"Oral and maxillofacial surgery" is the specialty of dentistry which includes the diagnosis, surgical and adjunctive treatment of diseases, injuries, and defects involving both the functional and aesthetic aspects of the hard and soft tissues of the oral and maxillofacial region;

"Orofacial pain" is the specialty of dentistry that encompasses the diagnosis, management and treatment of pain disorders of the jaw, mouth, face and associated regions, which specialty is dedicated to the evidenced-based understanding of the underlying pathophysiology, etiology, prevention, and treatment of these disorders and improving access to interdisciplinary patient care. These disorders as they relate to orofacial pain include but are not limited to temporomandibular muscle and joint (TMJ) disorders, jaw movement disorders, neuropathic and neurovascular pain disorders, headache, and sleep disorders;

"Orthodontics and dentofacial orthopedics" is the dental specialty that includes the diagnosis, prevention, interception, and correction of malocclusion, as well as neuromuscular and skeletal abnormalities of the developing or mature orofacial structures;

"PALS" means pediatric advanced life support;

"Pediatric dentistry" is an age-defined specialty that provides both primary and comprehensive preventive and therapeutic oral health care for infants and children through adolescence, including those with special health care needs;

"Pediatric patient" means infants and children;

"Periodontics" is that specialty of dentistry which encompasses the prevention, diagnosis, and treatment of diseases of the supporting and surrounding tissues of the teeth or their substitutes and the maintenance of the health, function, and aesthetics of these structures and tissues;

"Physician anesthesiologist" means a physician, medical doctor, or doctor of osteopathy who is specialized in the practice of anesthesiology;

"Prosthodontics" is the dental specialty pertaining to the diagnosis, treatment planning, rehabilitation and maintenance of the oral function, comfort, appearance and health of patients with clinical conditions associated with missing or deficient teeth and/or oral and maxillofacial tissues using biocompatible substitutes;

"Public health practice" means treatment or procedures in a public health setting which shall be designated by a rule promulgated by the board to require direct, general, or no supervision of a dental hygienist by a dentist;

"Public health setting" means hospitals, schools, correctional facilities, jails, community clinics, long-term care facilities, nursing homes, home health agencies, group homes, state institutions under the Department of Health Facilities, public health facilities, homebound settings, accredited dental hygiene education programs, and any other place designated by the board by rule;

"Qualified monitor" means an individual who by virtue of credentialing and/or training is qualified to check closely and document the status of a patient undergoing anesthesia and observe utilized equipment;

"Relative analgesia/minimal sedation" means an induced, controlled state of minimally depressed consciousness, produced solely by the inhalation of a combination of nitrous oxide and oxygen or single oral premedication without the addition of nitrous oxide and oxygen in which the patient retains the ability to independently and continuously maintain an airway and to respond purposefully to physical stimulation and to verbal command;

"Specialty" means the practice of a certain branch of dentistry;

"Subcommittee" means West Virginia Board of Dentistry Subcommittee on Anesthesia; and

"Work authorization" means a written order for dental laboratory services which has been issued by a licensed dentist.

§30-4-4. Board of Dental Examiners.

(a) The West Virginia Board of Dental Examiners is continued and on July 1, 2013, the board shall be renamed the West Virginia Board of Dentistry. The members of the board in office on the date this section takes effect shall, unless sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and qualified.

(b) The Governor, by and with the advice and consent of the Senate, shall appoint:

(1) Six licensed dentists;

(2) One licensed dental hygienist;

(3) One nationally certified dental assistant or currently practicing dental assistant with a minimum of ten years experience; and

(4) One citizen member who is not licensed under the provisions of this article and does not perform any services related to the practice of dentistry.

(c) The West Virginia Dental Association may submit recommendations to the Governor for the appointment of the licensed dentists board members, the West Virginia Association of Dental Hygienists may submit recommendations to the Governor for the appointment of a Dental Hygienist board member and the West Virginia Dental Assistant Association may submit recommendations to the Governor for the appointment of a dental assistant board member.

(d) A person connected with a commercial entity that may derive financial gain from the profession of dentistry and a person employed as full-time faculty with a dental college, school or dental department of a university are not eligible for appointment to the board.

(e) After the initial appointment term, the appointment term is five years. A member may not serve more than two consecutive terms. A member who has served two consecutive full terms may not be reappointed for at least one year after completion of his or her second full term. A member may continue to serve until his or her successor has been appointed and qualified.

(f) Each licensed member of the board, at the time of his or her appointment, shall have held a license in this state for a period of not less than five years immediately preceding the appointment.

(g) Each member of the board shall be a resident of this state during the appointment term.

(h) A vacancy on the board shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant.

(i) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.

(j) A licensed member of the board immediately and automatically forfeits membership to the board if his or her license to practice is suspended or revoked in any jurisdiction.

(k) A member of the board immediately and automatically forfeits membership to the board if he or she is convicted of a felony under the laws of any jurisdiction or becomes a nonresident of this state.

(l) The board shall elect annually one of its members as president and one member as secretary who shall serve at the will and pleasure of the board.

(m) Each member of the board is entitled to receive compensation and expense reimbursement in accordance with article one of this chapter.

(n) A simple majority of the membership serving on the board at a given time is a quorum for the transaction of business.

(o) The board shall hold at least two meetings annually. Other meetings shall be held at the call of the president or upon the written request of four members, at the time and place as designated in the call or request.

(p) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state.

(q) The members of the board, when acting in good faith and without malice, shall enjoy immunity from individual civil liability while acting within the scope of their duties as board members.

§30-4-5. Powers of the board.

The board has all the powers and duties set forth in this article, by rule, in article one of this chapter and elsewhere in law, including:

(1) Hold meetings;

(2) Establish procedures for submitting, approving and rejecting applications for a license, certificate and permit;

(3) Determine the qualifications of any applicant for a license, certificate and permit;

(4) Establish the fees charged under the provisions of this article;

(5) Issue, renew, deny, suspend, revoke or reinstate a license, certificate and permit;

(6) Prepare, conduct, administer and grade written, oral or written and oral examinations for a license;

(7) Contract with third parties to administer the examinations required under the provisions of this article;

(8) Maintain records of the examinations the board or a third party administers, including the number of persons taking the examination and the pass and fail rate;

(9) Maintain an office and hire, discharge, establish the job requirements and fix the compensation of employees and contract with persons necessary to enforce the provisions of this article.

 (10) Employ investigators, attorneys, hearing examiners, consultants and other employees as may be necessary who are exempt from the classified service and who serve at the will and pleasure of the board.

(11) Investigate alleged violations of the provisions of this article and articles four-a and four-b of this chapter and legislative rules, orders and final decisions of the board;

(12) Conduct disciplinary hearings of persons regulated by the board;

(13) Determine disciplinary action and issue orders;

(14) Institute appropriate legal action for the enforcement of the provisions of this article;

(15) Maintain an accurate registry of names and addresses of all persons regulated by the board;

(16) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;

(17) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article;

(18) Sue and be sued in its official name as an agency of this state; and

(19) Confer with the Attorney General or his or her assistant in connection with legal matters and questions.

§30-4-6. Rule-making authority.

(a) The board shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article and articles four-a and four-b of this chapter including:

(1) Standards and requirements for licenses, certifications and permits;

(2) Requirements for third parties to prepare and/or administer examinations and reexaminations;

(3) Educational and experience requirements;

(4) Continuing education requirements and approval of continuing education courses;

(5) Procedures for the issuance and renewal of licenses, certifications and permits;

(6) Establish a fee schedule;

(7) Regulate dental specialities;

(8) Delegate procedures to be performed by a dental hygienist;

(9) Delegate procedures to be performed by a dental assistant;

(10) Designate the services and procedures performed under direct supervision, general supervision in public health practice;

(11) Designate additional public health settings;

(12) Regulate the use of firm or trade names;

(13) Regulate dental corporations;

(14) Regulate mobile dental facilities;

(15) Regulate portable dental units;

(16) Regulate professional limited liability companies;

(17) Establish professional conduct requirements;

(18) Establish the procedures for denying, suspending, revoking, reinstating or limiting the practice of licensees, certifications and permitees;

(19) Standards and requirements for agreements with organizations to form professional recovery networks;

(20) Establish an alcohol and chemical dependency treatment program, including standards and requirements;

(21) Establish requirements for inactive or revoked licenses, certifications and permits;

(22) Regulate dental anesthesia, including:

(A) Fees;

(B) Evaluations;

(C) Equipment;

(D) Emergency drugs;

(E) Definitions;

(F) Qualified monitor requirements; and

(G) Education;

(23) Any other rules necessary to implement this article.

(b) All of the board's rules in effect and not in conflict with these provisions shall remain in effect until they are amended or rescinded.

§30-4-7. Fees; special revenue account; administrative fines.

(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the State Treasury designated the Board of Dentists and Dental Hygienist Special Fund, which is continued and shall be known as the Board of Dentistry Special Fund. The fund is used by the board for the administration of this article. Except as may be provided in article one of this chapter, the board retains the amount in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.

(b) Any amounts received as administrative fines imposed pursuant to this article shall be deposited into the general revenue fund of the State Treasury.

§30-4-8. License to practice dentistry.

(a) The board shall issue a license to practice dentistry to an applicant who meets the following:

(1) Is at least 18 years of age;

(2) Does not have any criminal convictions which would bar the applicant’s licensure pursuant to §30-1-24 of this code;

(3) Is a graduate of and has a diploma from a school accredited by the Commission on Dental Accreditation or equivalently approved dental college, school, or dental department of a university as determined by the board;

(4) Has passed a national board examination as given by the Joint Commission on National Dental Examinations and a clinical examination administered by the Commission on Dental Competency Assessments, the Central Regional Dental Testing Service, the Council of Interstate Testing Agencies, the Southern Regional Testing Agency, or the Western Regional Examining Board, or the successor to any of those entities, which demonstrates competency, and passed each individual component with no compensatory scoring in:

(A) Endodontics, including access opening of a posterior tooth and access, canal instrumentation, and obturation of an anterior tooth;

(B) Fixed prosthodontics, including an anterior crown preparation and two posterior crown preparations involving a fixed partial denture factor;

(C) Periodontics, including scaling and root planing; and

(D) Restorative, including a class II amalgam or composite preparation and restoration and a class III composite preparation and restoration.

(E) The board may consider clinical examinations taken prior to July 1, 2019, or individual state clinical examinations as equivalent which demonstrates competency.

(5) Has not been found guilty of cheating, deception, or fraud in the examination or any part of the application;

(6) Has paid the application fee specified by rule;

(7) Not be an alcohol or drug abuser, as these terms are defined in §27-1A-11 of this code: Provided, That an applicant in an active recovery process, which may, in the discretion of the board, be evidenced by participation in a 12-step program or other similar group or process, may be considered; and

(8) Meets the other requirements specified by rule.

(b) A dentist may not represent to the public that he or she is a specialist in any branch of dentistry or limit his or her practice to any branch of dentistry unless first issued a certificate of qualification in that branch of dentistry by the board.

(c) A license to practice dentistry issued by the board shall for all purposes be considered a license issued under this section: Provided, That a person holding a license shall renew the license.

§30-4-8a. Dental specialties.

(a) The Board of Dentistry may issue a dental specialty license authorizing a dentist to represent himself or herself to the public as a specialist, and to practice as a specialist, upon proper application and fee for each specialty and as provided pursuant to the provisions of this article.

(b) A dentist may not represent himself or herself to the public as a specialist, nor practice as a specialist, unless the individual:

(1) Has successfully completed a board-recognized dental specialty/advanced education program accredited by the Commission on Dental Accreditation;

(2) Holds a general dental license in this state; and

(3) Has completed any additional requirements set forth in state law or rules and has been issued a dental specialty license by the board.

(c) Specialties recognized by the board and the educational requirements for obtaining a specialty license shall include:

(1) Dental public health. — In order to qualify for this specialty, the licensee shall have successfully completed a minimum of one full-time academic year of at least eight calendar months, each of graduate or post-graduate education, internship, or residency.

(2) Endodontics. — In order to qualify for this specialty, the licensee shall have successfully completed a minimum of two full-time academic years of at least eight calendar months, each of graduate or post-graduate education, internship, or residency.

(3) Oral and maxillofacial surgery. — In order to qualify for this specialty, the licensee shall have successfully completed a minimum of three full-time academic years of at least eight calendar months, each of graduate or post-graduate education, internship, or residency.

(4) Oral and maxillofacial radiology. — In order to qualify for this specialty, the licensee shall have successfully completed a minimum of two full-time years of at least eight calendar months each, of graduate or post-graduate education, internship, or residency.

(5) Orthodontics and dentofacial orthopedics. — In order to qualify for this specialty, the licensee shall have successfully completed a minimum of two full-time academic years of at least eight calendar months, each of graduate or post-graduate education, internship, or residency. In addition, any applicant for an orthodontic and dentofacial orthopedic specialty certificate shall submit verification of successful completion of the American Board of Orthodontics written examination.

(6) Pediatric dentistry. — In order to qualify for this specialty, the licensee shall have successfully completed a minimum of two full-time academic years of at least eight calendar months, each of graduate or post-graduate education, internship, or residency.

(7) Periodontics. — In order to qualify for this specialty, the licensee shall have successfully completed a minimum of two full-time academic years of at least eight calendar months, each of graduate or post-graduate education, internship, or residency.

(8) Prosthodontics. — In order to qualify for this specialty, the licensee shall have successfully completed a minimum of two full-time academic years of at least eight calendar months, each of graduate or post-graduate education, internship, or residency.

(9) Oral pathology. — In order to qualify for this specialty, the licensee shall have successfully completed a minimum of two full-time academic years of at least eight calendar months, each of graduate or post-graduate education, internship, or residency.

(10) Dental anesthesiology. – In order to qualify for this specialty, the licensee shall have successfully completed a minimum of two full-time academic years, accredited by the Commission on Dental Accreditation of the American Dental Association, through (1) a graduate or post-graduation education; (2) an internship; or (3) a residency. Each full-time academic year must have consisted of at least eight calendar months.

(11) Oral medicine. – In order to qualify for this specialty, the licensee shall have successfully completed a minimum of two full-time academic years, accredited by the Commission on Dental Accreditation of the American Dental Association, through (1) a graduate or post-graduation education; (2) an internship; or (3) a residency. Each full-time academic year must have consisted of at least eight calendar months.

(12) Orofacial pain. – In order to qualify for this specialty, the licensee shall have successfully completed a minimum of two full-time academic years, accredited by the Commission on Dental Accreditation of the American Dental Association, through (1) a graduate or post-graduation education; (2) an internship; or (3) a residency. Each full-time academic year must have consisted of at least eight calendar months.

(d) The licensee shall limit his or her practice of dentistry only to the specialty or specialties in which he or she is licensed and in which he or she holds himself or herself out to the public as a specialist.

(e) If a licensee lists his or her services in a telephone directory or on the internet, then the licensee shall only list those specialties in which he or she practices in his or her office or offices.

(f) The limitation of practice is removed for purposes of volunteering services in organized health clinics and at charitable events.

§30-4-9. Scope of practice of a dentist.

The practice of dentistry includes the following:

(1) Coordinate dental services to meet the oral health needs of the patient;

(2) Examine, evaluate and diagnose diseases, disorders and conditions of the oral cavity, maxillofacial area and adjacent and associated structures;

(3) Treat diseases, disorders and conditions of the oral cavity, maxillofacial area and the adjacent and associated structures;

(4) Provide services to prevent diseases, disorders and conditions of the oral cavity, maxillofacial area and the adjacent and associated structures;

(5) Fabricate, repair or alter a dental prosthesis;

(6) Administer anesthesia in accordance with the provisions of article four-a of this chapter;

(7) Prescribe drugs necessary for the practice of dentistry;

(8) Execute and sign a death certificate when it is required in the practice of dentistry;

(9) Employ and supervise dental auxiliary personnel;

(10) Authorize delegated procedures to be performed by dental auxiliary personnel; and

(11) Perform any other work included in the curriculum of an approved dental school, college or dental department of a university.

§30-4-10. License to practice dental hygiene.

(a) The board shall issue a dental hygienist license to an applicant who meets the following requirements:

(1) Is at least 18 years of age;

(2) Does not have any criminal convictions which would bar the applicant’s licensure pursuant to §30-1-24 of this code;

(3) Is a graduate with a degree in dental hygiene from an approved dental hygiene program of a college, school, or dental department of a university;

(4) Has passed a national board examination as given by the Joint Commission on National Dental Examinations and passed a board-approved examination designed to determine the applicant’s level of clinical skills;

(5) Has not been found guilty of cheating, deception, or fraud in the examination or any part of the application;

(6) Has paid the application fee specified by rule;

(7) Is not an alcohol or drug abuser, as those terms are defined in §27-1A-11 of this code: Provided, That an applicant in an active recovery process, which may, in the discretion of the board, be evidenced by participation in a 12-step program or other similar group or process, may be considered; and

(8) Meets the other requirements specified by rule.

(b) A dental hygienist license issued by the board and in good standing on the effective date of the amendments to this section shall for all purposes be considered a dental hygienist license issued under this section: Provided, That a person holding a dental hygienist license shall renew the license.

§30-4-10a.

Repealed.

Acts, 2013 Reg. Sess., Ch. 150.

§30-4-11. Scope of practice for a dental hygienist.

The practice of dental hygiene includes the following:

(1) Perform a complete prophylaxis, including the removal of any deposit, accretion or stain from supra and subgingival, the surface of a tooth or a restoration;

(2) Apply a medicinal agent to a tooth for a prophylactic purpose;

(3) Take a radiograph for interpretation by a dentist;

(4) Instruct a patient on proper oral hygiene practice;

(5) Place sealants on a patient's teeth without a prior examination by a licensed dentist: Provided, That for this subdivision, the dental hygienist has a public health practice permit issued by the board, and subject to a collaborative agreement with a supervising dentist and the patient is referred for a dental examination within six months of sealant application;

(6) Perform all delegated procedures of a dental hygienist specified by rule by the board; and

(7) Performing all delegated procedures of a dental assistant specified by rule by the board.

§30-4-12. License renewal.

(a) All persons regulated by this article shall annually or biannually, renew his or her board authorization by completing a form prescribed by the board and submitting any other information required by the board.

(b) The board shall charge a fee for each renewal of a board authorization and shall charge a late fee for any renewal not paid by the due date.

(c) The board shall require as a condition of renewal that each licensee, certificate holder or permittee complete continuing education.

(d) The board may deny an application for renewal for any reason which would justify the denial of an original application.

§30-4-13. Board authorizations shall be displayed.

(a) The board shall prescribe the form for a board authorization, and may issue a duplicate upon payment of a fee.

(b) Any person regulated by this article shall conspicuously display his or her board authorization at his or her principal place of practice.

§30-4-14. Dental intern, resident, or teaching permit.

(a) The board may issue a dental intern or dental resident permit to an applicant who has been accepted as a dental intern or dental resident by a licensed hospital or dental school in this state which maintains an established dental department under the supervision of a licensed dentist and meets the following qualifications:

(1) Has graduated from a Commission on Dental Accreditation or equivalent approved dental college, school or dental department of a university with a degree in dentistry;

(2) Has paid the application fee specified by rule; and

(3) Meets the other qualifications specified by rule.

(b) The dental intern or dental resident permit may be renewed and expires on the earlier of:

(1) The date the permit holder ceases to be a dental intern or dental resident; or

(2) One year after the date of issue.

(c) The board may issue a teaching permit to an applicant who is not otherwise licensed to practice dentistry in this state and who meets the following conditions:

(1) Is authorized or is eligible, as determined by the board, for a authorization to practice dentistry in another jurisdiction;

(2) Has met or been approved under the credentialing standards of a dental school or an academic medical center with which the person is to be affiliated: Provided, That the dental school or academic medical center is accredited by the Commission on Dental Accreditation or Joint Commission on Accreditation of Health Care Organizations;

(3) The permittee may teach and practice dentistry in or on behalf of a dental school or college offering a doctoral degree in dentistry operated and conducted in this state, in connection with an academic medical center or at any teaching hospital adjacent to a dental school or an academic medical center;

(4) Shall successfully complete the West Virginia Dental Law Examination;

(5) Shall pay annual renewal fees to the board;

(6) Shall comply with continuing education requirements; and

(7) Has had no disciplinary actions taken or pending against him or her by any other jurisdiction.

(d) A teaching permit may be renewed annually with a written recommendation from the dental school dean.

(e) While in effect, a permittee is subject to the restrictions and requirements imposed by this article to the same extent as a licensee. In addition, a permittee may not receive any fee for service other than a salary paid by the hospital or dental school.

§30-4-15. Special volunteer dentist or dental hygienist license; civil immunity for voluntary services rendered to indigents.

(a) There is continued a special volunteer dentist and dental hygienist license for dentists and dental hygienists retired or retiring from the active practice of dentistry and dental hygiene who wish to donate their expertise for the care and treatment of indigent and needy patients in the clinical setting of clinics organized, in whole or in part, for the delivery of health care services without charge. The special volunteer dentist or dental hygienist license shall be issued by the board to a dentist or dental hygienist licensed or otherwise eligible for 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 the remainder of the licensing period and renewed consistent with the board’s other licensing requirements. The board shall develop application forms for the special license provided in this subsection which shall contain the dentist’s or dental hygienist’s acknowledgment that:

(1) The dentist’s or dental hygienist’s practice under the special volunteer dentist or dental hygienist license will be exclusively devoted to providing dentistry or dental hygiene care to needy and indigent persons in West Virginia;

(2) The dentist or dental hygienist will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation but may donate to the clinic the proceeds of any reimbursement, for any dentistry or dental hygiene services rendered under the special volunteer dentist or dental hygienist license;

(3) The dentist or dental hygienist will supply any supporting documentation that the board may reasonably require; and

(4) The dentist or dental hygienist agrees to continue to participate in continuing professional education as required by the board for the special volunteer dentist or dental hygienist.

(b) Any person engaged in the active practice of dentistry and dental hygiene in this state whose license is in good standing may donate their expertise for the care and treatment of indigent and needy patients pursuant to an arrangement with a clinic organized, in whole or in part, for the delivery of health care services without charge to the patient. Services rendered pursuant to an arrangement may be performed in either the office of the dentist or dental hygienist or the clinical setting.

(c) Any dentist or dental hygienist who renders any dentistry or dental hygiene 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 dentist or dental hygienist license authorized under subsection (a) of this section or pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) of this section without payment or compensation or the expectation or promise of payment or compensation is immune from liability in any civil action arising out of any act or omission incident to rendering service at the clinic unless the act or omission was the result of the dentist’s or dental hygienist’s gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there shall be a written agreement between the dentist or dental hygienist and the clinic, pursuant to which the dentist or dental hygienist will provide voluntary uncompensated services under the control of the clinic to patients of the clinic, executed prior to the rendering of any services by the dentist or dental hygienist 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.

(d) 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 a dentist or dental hygienist rendering voluntary uncompensated services at or for the clinic under a special volunteer dentist or dental hygienist license issued under subsection (a) of this section or who renders such care and treatment pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) of this section.

(e) For purposes of this section, “otherwise eligible for licensure” means the satisfaction of all the requirements for licensure as listed in section eight of this article and in the legislative rules promulgated thereunder, except the fee requirements of subdivision (6) of said section and of the legislative rules promulgated by the board relating to fees.

(f) Nothing in this section may be construed as requiring the board to issue a special volunteer dentist or dental hygienist license to any dentist or dental hygienist whose license is or has been subject to any disciplinary action or to any dentist or dental hygienist who has surrendered a license or caused such license to lapse, expire or become inactive in lieu of having a complaint initiated or other action taken against his or her license, or who has been denied a dentist or dental hygienist license.

 (g) Any policy or contract of liability insurance providing coverage for liability that is sold, issued or delivered in this state to any dentist or dental hygienist 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 a dentist or dental hygienist who holds a special volunteer dentist or dental hygienist license or who renders such care and treatment pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) of this section.

§30-4-16. Dental corporations and professional limited liability companies.

(a) Dental corporations and professional limited liability companies are continued.

(b) One or more dentists licensed by the board may organize and become a shareholder or shareholders of a dental corporation, or member or members of a professional limited liability company, domiciled within this state under the terms and conditions and subject to the limitations and restrictions specified by rule.

(c) No corporation or professional limited liability company may practice dentistry, or any of its branches, or hold itself out as being capable of doing so without a certificate of authorization from the board.

(d) When the Secretary of State receives a certificate of authorization to act as a dental corporation or professional limited liability company from the board, he or she shall attach the authorization to the corporation application and, upon compliance with the applicable provisions of Chapter 31 or Chapter 31B of this code, the Secretary of State shall issue to the incorporators a certificate of incorporation for the dental corporation or to the organizers a certificate of organization for the professional limited liability company.

(e) A corporation or professional limited liability company holding a certificate of authorization shall renew annually, on or before June 30, on a form prescribed by the board and pay an annual fee in an amount specified by rule.

(f) A dental corporation or professional limited liability company may practice dentistry only through one or more dentists licensed to practice dentistry in this state, but the dentist or dentists may be employees rather than shareholders or members of the corporation or company.

(g) A dental corporation holding a certificate of authorization shall cease to engage in the practice of dentistry upon being notified by the board that any of its shareholders is no longer a licensed dentist or when any shares of the corporation have been sold or disposed of to a person who is not a licensed dentist: Provided

, That the personal representative of a deceased shareholder has a period, not to exceed twenty-four months from the date of the shareholder’s death, to dispose of the shares; but nothing contained herein may be construed as affecting the existence of the corporation or its right to continue to operate for all lawful purposes other than the practice of dentistry.

§30-4-17. Reinstatement.

(a) A licensee against whom disciplinary action has been taken under the provisions of this article shall be afforded an opportunity to demonstrate the qualifications to resume practice. The application for reinstatement shall be in writing and subject to the procedures specified by the board by rule.

(b) A licensee who does not complete annual renewal, as specified herein and by the board by rule, and whose license has lapsed for one year or longer, shall make application for reinstatement as specified by the board by rule.

(c) The board, at its discretion and for cause, may require an applicant for reinstatement to undergo a physical and/or mental evaluation, at his or her expense, to determine whether the applicant is competent to practice dentistry or dental hygiene.

§30-4-18. Actions to enjoin violations.

(a) If the board obtains information that any person 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 article, the rules promulgated pursuant to this article or a final order or decision of the board, it may issue a notice to the person to cease and desist in engaging in the act and/or apply to the circuit court in the county of the alleged violation for an order enjoining the act.

(b) The circuit court may issue a temporary injunction pending a decision on the merits and may issue a permanent injunction based on its findings in the case.

(c) The judgment of the circuit court on an application permitted by the provisions of this section is final unless reversed, vacated or modified on appeal to the West Virginia Supreme Court of Appeals.

§30-4-19. Complaints; investigations; due process procedure; grounds for disciplinary action.

(a) The board may initiate a complaint upon receipt of the quarterly report from the Board of Pharmacy as required by §60A-9-1 et seq. of this code or upon receipt of credible information and shall, upon the receipt of a written complaint of any person, cause an investigation to be made to determine whether grounds exist for disciplinary action under this article or the legislative rules promulgated pursuant to this article.

(b) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the licensee, certificate holder, or permittee has violated §30-4-19 (g) of this code or rules promulgated pursuant to this article.

(c) Upon a finding of probable cause to go forward with a complaint, the board shall provide a copy of the complaint to the licensee, certificate holder, or permittee.

(d) Upon a finding that probable cause exists that the licensee, certificate holder, or permittee has violated §30-4-19(g) of this code or rules promulgated pursuant to this article, the board may enter into a consent decree or hold a hearing for disciplinary action against the licensee, certificate holder, or permittee. Any hearing shall be held in accordance with the provisions of this article and shall require a violation to be proven by a preponderance of the evidence.

(e) A member of the complaint committee or the executive director of the board may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations against any person regulated by this article.

(f) Any member of the board or its executive director may sign a consent decree or other legal document on behalf of the board.

(g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend, restrict, or revoke the license, certificate, or permit of, or impose probationary conditions upon, or take disciplinary action against, any licensee, certificate holder, or permittee for any of the following reasons:

(1) Obtaining a board authorization by fraud, misrepresentation, or concealment of material facts;

(2) Being convicted of a felony crime, or being convicted of a misdemeanor crime related to the practice of dentistry or dental hygiene;

(3) Being guilty of malpractice or neglect in the practice of dentistry or dental hygiene;

(4) Violation of a lawful order or legislative rule of the board;

(5) Having had a board authorization revoked or suspended, other disciplinary action taken, or an application for a board authorization denied by the proper authorities of another jurisdiction;

(6) Aiding, abetting, or supervising the practice of dentistry or dental hygiene by an unlicensed person;

(7) Engaging in conduct, while acting in a professional capacity, which has endangered or is likely to endanger the health, welfare, or safety of the public;

(8) Having an incapacity that prevents one from engaging in the practice of dentistry or dental hygiene, with reasonable skill, competence, and safety to the public;

(9) Committing fraud in connection with the practice of dentistry or dental hygiene;

(10) Failing to report to the board one’s surrender of a license or authorization to practice dentistry or dental hygiene in another jurisdiction while under disciplinary investigation by any of those authorities or bodies for conduct that would constitute grounds for action as defined in this section;

(11) Failing to report to the board any adverse judgment, settlement, or award arising from a malpractice claim related to conduct that would constitute grounds for action as defined in this section;

(12) Being guilty of unprofessional conduct as contained in the American Dental Association principles of ethics and code of professional conduct. The following acts are conclusively presumed to be unprofessional conduct:

(A) Being guilty of any fraud or deception;

(B) Abusing alcohol or drugs;

(C) Violating or improperly disclosing any professional confidence;

(D) Harassing, abusing, intimidating, insulting, degrading, or humiliating a patient physically, verbally, or through another form of communication;

(E) Obtaining any fee by fraud or misrepresentation;

(F) Employing directly or indirectly, or directing or permitting any suspended or unlicensed person, to perform operations of any kind or to treat lesions of the human teeth or jaws, or correct malimposed formations thereof;

(G) Practicing or offering or undertaking to practice dentistry under any firm name or trade name not approved by the board;

(H) Having a professional connection or association with, or lending his or her name to, another for the illegal practice of dentistry, or having a professional connection or association with any person, firm, or corporation holding himself or herself, themselves, or itself out in any manner contrary to this article;

(I) Making use of any advertising relating to the use of any drug or medicine of unknown formula;

(J) Advertising to practice dentistry or perform any operation thereunder without causing pain;

(K) Advertising professional superiority or the performance of professional services in a superior manner;

(L) Advertising to guarantee any dental service;

(M) Advertising in any manner that is false or misleading in any material respect; or

(N) Engaging in any action or conduct which would have warranted the denial of the license.

(13) Knowing or suspecting that a licensee is incapable of engaging in the practice of dentistry or dental hygiene, with reasonable skill, competence, and safety to the public, and failing to report that information to the board;

(14) Using or disclosing protected health information in an unauthorized or unlawful manner;

(15) Engaging in any conduct that subverts or attempts to subvert any licensing examination or the administration of any licensing examination;

(16) Failing to furnish to the board or its representatives any information legally requested by the board or failing to cooperate with or engaging in any conduct which obstructs an investigation being conducted by the board;

(17) Announcing or otherwise holding himself or herself out to the public as a specialist or as being specially qualified in any particular branch of dentistry or as giving special attention to any branch of dentistry or as limiting his or her practice to any branch of dentistry without first complying with the requirements established by the board for the specialty and having been issued a certificate of qualification in the specialty by the board;

(18) Failing to report to the board within 72 hours of becoming aware of any life threatening occurrence, serious injury, or death of a patient resulting from the licensee’s or permittee’s dental treatment;

(19) Administering sedation anesthesia without a valid permit, or other violation of §30-4A-1 et seq. of this code;

(20) Failing to observe or adhere to regulations, standards, or guidelines regarding infection control, disinfection, or sterilization, or otherwise applicable to dental care settings;

(21) Failing to report to the board any driving under the influence and/or driving while intoxicated offense; or

(22) Violation of any of the terms or conditions of any order entered in any disciplinary action.

(h) For the purposes of §30-4-19(g) of this code, disciplinary action may include:

(1) Reprimand;

(2) Probation;

(3) Restrictions;

(4) Suspension;

(5) Revocation;

(6) Administrative fine, not to exceed $1,000 per day per violation;

(7) Mandatory attendance at continuing education seminars or other training;

(8) Practicing under supervision or other restriction; or

(9) Requiring the licensee or permittee to report to the board for periodic interviews for a specified period of time.

(i) In addition to any other sanction imposed, the board may require a licensee or permittee to pay the board’s costs incurred in investigating and adjudicating a disciplinary matter, including the board’s legal fees.

(j) The board may defer disciplinary action with regard to an impaired licensee or permittee who voluntarily signs an agreement, in a form satisfactory to the board, agreeing not to practice dental care and to enter an approved treatment and monitoring program in accordance with the board’s legislative rules: Provided, That this subsection does not apply to a licensee or permittee who has been convicted of, pleads guilty to, or enters a plea of nolo contendere to an offense relating to a controlled substance in any jurisdiction.

(k) A person authorized to practice under this article who reports or otherwise provides evidence of the negligence, impairment, or incompetence of another member of this profession to the board or to any peer review organization is not liable to any person for making the report if the report is made without actual malice and in the reasonable belief that the report is warranted by the facts known to him or her at the time.

§30-4-20. Procedures for hearing; right of appeal.

(a) Hearings are governed by the provisions of §30-1-8 of this code and the legislative rules promulgated pursuant to this article.

(b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.

(c) If the hearing is conducted by an administrative law judge, at the conclusion of the hearing he or she shall prepare a proposed written order containing findings of fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the board so directs. The board may accept, reject or modify the decision of the administrative law judge.

(d) Any member of the board or the executive director of the board has the authority to administer oaths and to examine any person under oath.

(e) If, after a hearing, the board determines the licensee or permittee has violated one or more provisions of this article or the board’s rules, a formal written decision shall be prepared which contains findings of fact, conclusions of law, and a specific description of the disciplinary actions imposed.

§30-4-21. Judicial review.

A person adversely affected by a decision of the board denying an application or entered after a hearing may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code and may appeal any ruling resulting from judicial review in accordance with article six of said chapter.

§30-4-22. Criminal offenses.

(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a person has committed a criminal offense in violation of this article, the board may bring such information to the attention of an appropriate law-enforcement official.

(b) Any person who practices dentistry or dental hygiene in this state and (1) has never been licensed by the board under this article, (2) holds a license that has been classified by the board as expired or lapsed, or (3) holds a license that has been inactive, revoked, or suspended as a result of disciplinary action, or surrendered to the board, is guilty of a felony and, upon conviction, shall be fined not more than $10,000 or imprisoned in a correctional facility for not less than one year nor more than five years, or both fined and imprisoned.

(c) Any person who holds himself or herself out as licensed to practice dentistry or dental hygiene in this State, or who uses any title, word, or abbreviation to indicate to or induce others to believe he or she is licensed to practice dentistry or dental hygiene in this State, and (1) has never been licensed by the board under this article, (2) holds a license that has been classified by the board as expired or lapsed, or (3) holds a license that has been inactive, revoked, or suspended as a result of disciplinary action, or surrendered to the board, is guilty of a misdemeanor and, upon conviction, shall be fined not more than $5,000 or confined in jail not more than twelve months, or both fined and confined.

§30-4-23. Single act evidence of practice.

In any action brought under this article, or under §30-4A-1 et seq. or §30-4B-1 et seq. of this code evidence of the commission of a single act prohibited by said article is sufficient to justify a penalty, injunction, restraining order or conviction without evidence of a general course of conduct.

§30-4-24. Inapplicability of article.

The provisions of this article do not apply to:

(1) A licensed physician or surgeon in the practice of his or her profession when rendering dental relief in emergency cases, unless he or she undertakes to reproduce or reproduces lost parts of the human teeth or to restore or replace lost or missing teeth in the human mouth;

(2) A dental laboratory in the performance of dental laboratory services, while the dental laboratory, in the performance of the work, conforms in all respects to the requirements of article four-b of this chapter, and further does not apply to persons performing dental laboratory services under the direct supervision of a licensed dentist;

(3) A student enrolled in an accredited D.D.S. or D.M.D. degree program or an accredited dental hygiene program practicing under the direct supervision of an instructor licensed by the board and (A) within a school, college, or university in this State; (B) in a dental clinic operated by a nonprofit organization providing indigent care; (C) in governmental or indigent care clinics in which the student is assigned to practice during his or her final academic year rotations; or (D) in a private dental office for a limited time during the student’s final academic year: Provided, That the supervising dentist holds appointment on the faculty of the school in which the student is enrolled;

(4) An authorized dentist of another state temporarily operating a clinic under the auspices of an organized and reputable dental college or reputable dental society, or to one lecturing before a reputable society composed exclusively of dentists; or

(5) A dentist whose practice is confined exclusively to the service of the United States Army, the United States Navy, the United States Air Force, The United States Coast Guard, the United States Public Health Service, the United States Veteran’s Bureau or any other authorized United States government agency or bureau.

§30-4-25. Declared public health emergencies.

During a declared public health emergency, dentists and dental hygienists with a local anesthesia certificate, may administer vaccines, perform FDA-authorized diagnostic tests to screen patients for infectious diseases, triage medical patients, and perform other ancillary medical procedures and activities as requested by medical personnel.

§30-4-26.

Repealed.

Acts, 2013 Reg. Sess., Ch. 150.

§30-4-27.

Repealed.

Acts, 2013 Reg. Sess., Ch. 150.

§30-4-28.

Repealed.

Acts, 2013 Reg. Sess., Ch. 150.

§30-4-29.

Repealed.

Acts, 2013 Reg. Sess., Ch. 150.

§30-4-30.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§30-4A-1. Requirement for anesthesia permit; qualifications and requirements for qualified monitors.

(a) No dentist may induce central nervous system anesthesia without first having obtained an anesthesia permit for the level of anesthesia being induced.

(b) The applicant for an anesthesia permit shall pay the appropriate permit fees and renewal fees, submit a completed board-approved application and consent to an office evaluation.

(c) Permits shall be renewed annually by June 30.

(d) Permit holders shall report the names and qualifications of each qualified monitor providing services to that permit holder. A qualified monitor may not perform the functions and responsibilities specified in this article for any level of anesthesia, other than relative analgesia/minimal sedation, without certification by the board. Qualified monitors shall apply for certification and pay the appropriate application fees and renewal fees. Qualified monitors are required to renew annually by the June 30. To be certified as a qualified monitor, the applicant must meet the following minimum qualifications:

(1) Possess a current health care provider BLS/CPR certification;

(2) For monitoring, conscious sedation/moderate sedation or general anesthesia/deep conscious sedation procedures, successful completion of an AAOMS or AAPD anesthesia assistants certification program; and

(3) For monitoring a nitrous oxide unit, successful completion of a board-approved course in nitrous oxide monitoring.

(e) A dentist shall hold a class permit equivalent to or exceeding the anesthesia level being provided unless the provider of anesthesia is a physician anesthesiologist or another licensed dentist who holds a current anesthesia permit issued by the board.

§30-4A-2. Presumption of Degree of Central Nervous System Depression.

(a) In any hearing where a question exists as to the level of central nervous system depression a licensee has induced, as outlined in this article, the board may base its findings on, among other things, the types, dosages and routes of administration of drugs administered to the patient and what result can reasonably be expected from those drugs in those dosages and routes administered in a patient of that physical and psychological status.

(b) No permit holder may have more than one person under conscious sedation/moderate sedation and/or general anesthesia/deep conscious sedation at the same time, exclusive of recovery.

§30-4A-3. Classes of anesthesia permits.

(a) The board shall issue the following permits:

(1) Class 2 Permit: A Class 2 Permit authorizes a dentist to induce anxiolysis/minimal sedation.

(2) Class 3 Permit: A Class 3 Permit authorizes a dentist to induce conscious sedation/moderate sedation as limited enteral (3a) and/or comprehensive parenteral (3b) and anxiolysis/minimal sedation.

(3) Class 4 Permit: A Class 4 Permit authorizes a dentist to induce general anesthesia/deep conscious sedation, conscious sedation/moderate sedation and anxiolysis/minimal sedation.

(b) When anesthesia services are provided in dental facilities by a medical doctor or doctor of osteopathy physician anesthesiologist or dentist anesthesiologist, the dental facility shall be inspected and approved for a Class 4 permit and the dentist shall have a minimum of a Class 2 permit. If anesthesia services are provided by a CRNA, the dental facility shall be inspected and approved for a Class 4 permit and the supervising dentist shall have the same level of permit for the level of anesthesia provided by the CRNA.

§30-4A-4. Qualifications, standards and continuing education requirements for relative analgesia/minimal sedation use.

(a) The board shall allow administration of relative analgesia/minimal sedation if the practitioner:

(1) Is a licensed dentist in the state;

(2) Holds valid and current documentation showing successful completion of a Health Care Provider BLS/CPR course; and

(3) Has completed a training course of instruction in dental school, continuing education or as a postgraduate in the administration of relative analgesia/minimal sedation.

(b) A practitioner who administers relative analgesia/minimal sedation shall have the following facilities, equipment and drugs available during the procedure and during recovery:

(1) An operating room large enough to adequately accommodate the patient on an operating table or in an operating chair and to allow delivery of age appropriate care in an emergency situation;

(2) An operating table or chair which permits the patient to be positioned so that the patient's airway can be maintained, quickly alter the patient's position in an emergency and provide a firm platform for the administration of basic life support;

(3) A lighting system which permits evaluation of the patient's skin and mucosa color and a backup lighting system of sufficient intensity to permit completion of any operation underway in the event of a general power failure;

(4) Suction equipment which permits aspiration of the oral and pharyngeal cavities;

(5) An oxygen delivery system with adequate age appropriate full face masks and appropriate connectors that is capable of delivering high flow oxygen to the patient under positive pressure, together with an adequate backup system;

(6) A nitrous oxide delivery system with a fail-safe mechanism that will ensure appropriate continuous oxygen delivery and a scavenger system; and

(7) A defibrillator device: Provided, That this requirement is only for Class 2, 3 and 4 permitees.

(c) All equipment used shall be appropriate for the height and weight and age of the patient.

(d) Before inducing relative analgesia/minimal sedation by means of nitrous oxide or a single premedication agent, a practitioner shall:

(1) Evaluate the patient;

(2) Give instruction to the patient or, when appropriate due to age or psychological status of the patient, the patient's guardian; and

(3) Certify that the patient is an appropriate candidate for relative analgesia/minimal sedation.

(e) A practitioner who administers relative analgesia/minimal sedation shall see that the patient's condition is visually monitored. At all times, the patient shall be observed by a qualified monitor until discharge criteria have been met.

(f) A qualified monitor's record shall include documentation of all medications administered with dosages, time intervals and route of administration including local anesthesia.

(g) A discharge entry shall be made in the patient's record indicating the patient's condition upon discharge.

(h) A qualified monitor shall hold valid and current documentation:

(1) Showing successful completion of a Health Care Provider BLS/CPR course; and

(2) Have received training and be competent in the recognition and treatment of medical emergencies, monitoring vital signs, the operation of nitrous oxide delivery systems and the use of the sphygmomanometer and stethoscope.

(i) The practitioner shall assess the patient's responsiveness using preoperative values as normal guidelines and discharge the patient only when the following criteria are met:

(1) The patient is alert and oriented to person, place and time as appropriate to age and preoperative neurological status;

(2) The patient can talk and respond coherently to verbal questioning or to preoperative neurological status;

(3) The patient can sit up unaided or without assistance or to preoperative neurological status;

(4) The patient can ambulate with minimal assistance or to preoperative neurological status; and

(5) The patient does not have uncontrollable nausea, vomiting or dizziness.

§30-4A-5. Qualifications, standards, and continuing education requirements for a Class 2 Permit.

(a) The board shall issue a Class 2 Permit to an applicant who:

(1) Is a licensed dentist in West Virginia;

(2) Holds valid and current documentation showing successful completion of a Health Care Provider BLS/CPR; and

(3) Has completed a board approved course of at least six hours didactic and clinical of either predoctoral dental school or postgraduate instruction.

(b) A dentist who induces relative analgesia/minimal sedation and anxiolysis/minimal sedation shall have the following facilities, properly maintained equipment and appropriate drugs available during the procedures and during recovery:

(1) An operating room large enough to adequately accommodate the patient on an operating table or in an operating chair and to allow an operating team of at least two individuals to freely move about the patient;

(2) An operating table or chair which permits the patient to be positioned so the operating team can maintain the patient's airway, quickly alter the patient's position in an emergency and provide a firm platform for the administration of basic life support;

(3) A lighting system which permits evaluation of the patient's skin and mucosal color and a backup lighting system of sufficient intensity to permit completion of any operation underway in the event of a general power failure;

(4) Suction equipment which permits aspiration of the oral and pharyngeal cavities;

(5) An oxygen delivery system with adequate age appropriate full face mask and appropriate connectors that is capable of delivering high flow oxygen to the patient under positive pressure, together with an adequate backup system;

(6) A nitrous oxide delivery system with a fail-safe mechanism that will ensure appropriate continuous oxygen delivery and a scavenger system;

(7) A recovery area that has available oxygen, adequate lighting, suction and electrical outlets. The recovery area can be the operating room;

(8) Sphygmomanometer, stethoscope and pulse oximeter;

(9) Emergency drugs as specified by rule;

(10) A defibrillator device; and

(11) All equipment and medication dosages shall be in accordance with the height and weight and age of the patient being treated.

(c) Before inducing anxiolysis/minimal sedation, a dentist shall:

(1) Evaluate the patient by using the ASA Patient Physical Status Classification of the ASA that the patient is an appropriate candidate for anxiolysis/minimal sedation; and

(2) Obtain written informed consent from the patient or patient's guardian for the anesthesia. The obtaining of the informed consent shall be documented in the patient's record.

(d) The dentist shall monitor and record the patient's condition or shall use a qualified monitor to monitor and record the patient's condition. The documented requirements of a qualified monitor monitoring anxiolysis/minimal sedation cases are as specified by rule. A Class 2 Permit holder may have no more than one person under anxiolysis/minimal sedation at the same time.

(e) The patient shall be monitored as follows:

(1) Patients shall have continuous monitoring using pulse oximetry. The patient's blood pressure, heart rate and respiration shall be recorded at least once before, during and after the procedure and these recordings shall be documented in the patient record. At all times, the patient shall be observed by a qualified monitor until discharge criteria have been met. If the dentist is unable to obtain this information, the reasons shall be documented in the patient's record. The record shall also include documentation of all medications administered with dosages, time intervals and route of administration including local anesthesia.

(2) A discharge entry shall be made by the dentist in the patient's record indicating the patient's condition upon discharge.

(f) A permit holder who uses anxiolysis/minimal sedation shall see that the patient's condition is visually monitored. The patient shall be monitored as to response to verbal stimulation, oral mucosal color and preoperative and postoperative vital signs.

(g) The dentist shall assess the patient's responsiveness using preoperative values as normal guidelines and discharge the patient only when the following criteria are met:

(1) Vital signs including blood pressure, pulse rate and respiratory rate are stable;

(2) The patient is alert and oriented to person, place and time as appropriate to age and preoperative neurological status;

(3) The patient can talk and respond coherently to verbal questioning or to preoperative neurological status;

(4) The patient can sit up unaided or to preoperative neurological status;

(5) The patient can ambulate with minimal assistance or to preoperative neurological status; and

(6) The patient does not have uncontrollable nausea or vomiting and has minimal dizziness.

(h) A dentist may not release a patient who has undergone anxiolysis/minimal sedation except to the care of a responsible adult third party.

§30-4A-6. Qualifications, standards, and continuing education requirements for Class 3 Anesthesia Permit.

(a) The board shall issue or renew a Class 3 Permit to an applicant who:

(1) Is a licensed dentist in West Virginia;

(2) Holds valid and current documentation showing successful completion of a Health Care Provider BLS/CPR course, ACLS and/or a PALS course if treating pediatric patients; and

(3) Satisfies one of the following criteria:

(A) Certificate of completion of a comprehensive training program in conscious sedation that satisfies the requirements described in the ADA Guidelines for Teaching Pain Control and Sedation to Dentists and Dental Students and the ADA Guidelines for the Use of Sedation and General Anesthesia by Dentists at the time training was commenced.

(B) Certificate of completion of an ADA-accredited postdoctoral training program which affords comprehensive and appropriate training necessary to administer and manage conscious sedation commensurate with these guidelines.

(C) In lieu of these requirements, the board may accept documented evidence of equivalent training or experience in conscious sedation anesthesia for Limited Enteral Permit as Class 3a or comprehensive Parenteral Permit as Class 3b as specified by rule.

(b) A dentist who induces conscious sedation shall have the following facilities, properly maintained age appropriate equipment and age appropriate medications available during the procedures and during recovery:

(1) An operating room large enough to adequately accommodate the patient on an operating table or in an operating chair and to allow an operating team of at least two individuals to freely move about the patient;

(2) An operating table or chair which permits the patient to be positioned so the operating team can maintain the patient's airway, quickly alter the patient's position in an emergency, and provide a firm platform for the administration of basic life support;

(3) A lighting system which permits evaluation of the patient's skin and mucosal color and a backup lighting system of sufficient intensity to permit completion of any operation underway in the event of a general power failure;

(4) Suction equipment which permits aspiration of the oral and pharyngeal cavities and a backup suction device which will function in the event of a general power failure;

(5) An oxygen delivery system with adequate age appropriate full face mask and appropriate connectors that is capable of delivering high flow oxygen to the patient under positive pressure, together with an adequate backup system;

(6) A nitrous oxide delivery system with a fail-safe mechanism that will ensure appropriate continuous oxygen delivery and a scavenger system;

(7) A recovery area that has available oxygen, adequate lighting, suction and electrical outlets. The recovery area can be the operating room;

(8) Sphygmomanometer, pulse oximeter, oral and nasopharyngeal airways, intravenous fluid administration equipment and/or equipment required for the standard of care or as specified by rule;

(9) Emergency drugs as specified by rule; and

(10) A defibrillator device.

(c) Before inducing conscious sedation, a dentist shall:

(1) Evaluate the patient and document, using the ASA Patient Physical Status Classifications, that the patient is an appropriate candidate for conscious sedation;

(2) Give written preoperative and postoperative instructions to the patient or, when appropriate due to age or neurological status of the patient, the patient's guardian; and

(3) Obtain written informed consent from the patient or patient's guardian for the anesthesia.

(d) The dentist shall ensure that the patient's condition is monitored and recorded on a contemporaneous record. The dentist shall use a qualified monitor to monitor and record the patient's condition in addition to the chair side dental assistant. A qualified monitor shall be present to monitor the patient at all times.

(e) The patient shall be monitored as follows:

(1) Patients shall have continuous monitoring using pulse oximetry and/or equipment required for the standard of care or as specified by rule by a qualified monitor until discharge criteria have been met. The documented requirements of a qualified monitor monitoring limited enteral or comprehensive parenteral sedations cases are as specified by rule. The patient's blood pressure, heart rate and respiration shall be recorded every five minutes and these recordings shall be documented in the patient record. The record shall also include documentation of preoperative and postoperative vital signs, all medications administered with dosages, time intervals and route of administration including local anesthesia. If the dentist is unable to obtain this information, the reasons shall be documented in the patient's record.

(2) During the recovery phase, the patient shall be monitored by a qualified monitor.

(3) A discharge entry shall be made by the dentist in the patient's record indicating the patient's condition upon discharge and the name of the responsible party to whom the patient was discharged.

(f) A dentist may not release a patient who has undergone conscious sedation/moderate sedation except to the care of a responsible adult third party.

(g) When discharging a pediatric patient the dentist shall follow the current edition of AAPD Guidelines for Monitoring and Management of Pediatric Patients During and After Sedation for Diagnostic and Therapeutic Procedures.

(h) The dentist shall assess the patient's responsiveness using preoperative values as normal guidelines and discharge the patient only when the following criteria are met:

(1) Vital signs including blood pressure, pulse rate and respiratory rate are stable;

(2) The patient is alert and oriented to person, place and time as appropriate to age and preoperative neurological status;

(3) The patient can talk and respond coherently to verbal questioning or to preoperative neurological status;

(4) The patient can sit up unaided or to preoperative neurological status;

(5) The patient can ambulate with minimal assistance or to preoperative neurological status; and

(6) The patient does not have uncontrollable nausea or vomiting and has minimal dizziness.

(i) A dentist who induces conscious sedation shall employ the services of a qualified monitor and a chair side dental assistant at all times who each shall hold a valid BLS/CPR certification and maintains certification as specified by rule.

§30-4A-6a.

Repealed.

Acts, 2013 Reg. Sess., Ch. 150.

§30-4A-6b.

Repealed.

Acts, 2013 Reg. Sess., Ch. 150.

§30-4A-6c.

Repealed.

Acts, 2013 Reg. Sess., Ch. 150.

§30-4A-6d.

Repealed.

Acts, 2013 Reg. Sess., Ch. 150.

§30-4A-7. Qualifications, standards, and continuing education requirements for Class 4 Anesthesia Permit.

(a) A Class 4 Permit permits the use of general anesthesia/deep conscious sedation, conscious sedation/moderate sedation and anxiolysis/minimal sedation.

(b) The board shall issue or renew a Class 4 Permit to an applicant who:

(1) Is a licensed dentist in West Virginia;

(2) Holds a valid and current documentation showing successful completion of a Healthcare Provider BLS/CPR course, Advanced Cardiac Life Support (ACLS) and/or Pediatric Advanced Life Support (PALS) course if treating pediatric patients;

(3) Satisfies one of the following criteria:

(A) Completion of an advanced training program in anesthesia and related subjects beyond the undergraduate dental curriculum that satisfies the requirements described in the ADA Guidelines for Teaching Pain Control and Sedation to Dentists and Dental Students and the ADA Guidelines for the Use of Sedation and General Anesthesia by Dentists at the time training was commenced;

(B) Completion of an ADA- or AMA-accredited postdoctoral training program which affords comprehensive and appropriate training necessary to administer and manage general anesthesia, commensurate with these guidelines;

(C) In lieu of these requirements, the board may accept documented evidence of equivalent training or experience in general anesthesia/deep conscious sedation.

(c) A dentist who induces general anesthesia/deep conscious sedation shall have the following facilities, properly maintained age appropriate equipment and age appropriate drugs available during the procedure and during recovery:

(1) An operating room large enough to adequately accommodate the patient on an operating table or in an operating chair and to allow an operating team of at least three individuals to freely move about the patient;

(2) An operating table or chair which permits the patient to be positioned so the operating team can maintain the patient's airway, quickly alter the patient's position in an emergency and provide a firm platform for the administration of basic life support;

(3) A lighting system which permits evaluation of the patient's skin and mucosal color and a backup lighting system of sufficient intensity to permit completion of any operation underway in the event of a general power failure;

(4) Suction equipment which permits aspiration of the oral and pharyngeal cavities and a backup suction device which will function in the event of a general power failure;

(5) An oxygen delivery system with adequate age appropriate full face mask and appropriate connectors that is capable of delivering high flow oxygen to the patient under positive pressure, together with an adequate backup system;

(6) A nitrous oxide delivery system with a fail-safe mechanism that will insure appropriate continuous oxygen delivery and a scavenger system;

(7) A recovery area that has available oxygen, adequate lighting, suction and electrical outlets. The recovery area can be the operating room;

(8) Equipment as specified by rule;

(9) Emergency drugs as specified by rule;

(10) A defibrillator device.

(d) Before inducing general anesthesia/deep conscious sedation the dentist shall:

(1) Evaluate the patient and document, using the ASA Patient Physical Status Classifications, that the patient is an appropriate candidate for general anesthesia or deep conscious sedation;

(2) Shall give written preoperative and postoperative instructions to the patient or, when appropriate due to age or neurological status of the patient, the patient's guardian; and

(3) Shall obtain written informed consent from the patient or patient's guardian for the anesthesia.

(e) A dentist who induces general anesthesia/deep conscious sedation shall ensure that the patient's condition is monitored and recorded on a contemporaneous record. The dentist shall use a qualified monitor to monitor and record the patient's condition on a contemporaneous record and a chair side dental assistant. The documented requirements of a qualified monitor monitoring general anesthesia/deep conscious sedation cases are as specified by rule. No permit holder may have more than one patient under general anesthesia at the same time.

(f) The patient shall be monitored as follows:

(1) Patients shall have continuous monitoring using pulse oximetry and/or equipment required for the standard of care or as specified by rule by a qualified monitor until discharge criteria have been met. The patient's blood pressure, heart rate and oxygen saturation shall be assessed every five minutes and shall be contemporaneously documented in the patient record. The record shall also include documentation of preoperative and postoperative vital signs, all medications administered with dosages, time intervals and route of administration including local anesthesia. The person administering the anesthesia may not leave the patient while the patient is under general anesthesia;

(2) During the recovery phase, the patient shall be monitored, including the use of pulse oximetry, by a qualified monitor; and

(3) A dentist may not release a patient who has undergone general anesthesia/deep conscious sedation except to the care of a responsible adult third party.

(4) When discharging a pediatric patient the dentist shall follow the current edition of AAPD Guidelines for the Monitoring and Management of Pediatric Patients During and After Sedation for Diagnostic and Therapeutic Procedures.

(g) The dentist shall assess the patient's responsiveness using preoperative values as normal guidelines and discharge the patient only when the following criteria are met:

(1) Vital signs including blood pressure, pulse rate and respiratory rate are stable;

(2) The patient is alert and oriented to person, place and time as appropriate to age and preoperative neurological status;

(3) The patient can talk and respond coherently to verbal questioning or to preoperative neurological status;

(4) The patient can sit up unaided or to preoperative neurological status;

(5) The patient can ambulate with minimal assistance or to preoperative neurological status; and

(6) The patient does not have uncontrollable nausea or vomiting and has minimal dizziness.

(7) A discharge entry shall be made in the patient's record by the dentist indicating the patient's condition upon discharge and the name of the responsible party to whom the patient was discharged.

(h) A dentist who induces general anesthesia shall employ the services of a qualified monitor and a chair side dental assistant at all times, who each shall hold a valid BLS/CPR certification and maintains certification as specified by rule.

§30-4A-8. Board to review, inspect and reinspect dentists for issuance of permits.

(a) By making application to the board for an anesthesia permit, a dentist consents and authorizes the board to review his or her credentials, inspect or reinspect his or her facilities and investigate any alleged anesthesia mortalities, misadventure or other adverse occurrences. The board shall conduct an in-office review or on-site inspection of any dentist applying for or holding a permit to administer anesthesia.

Prior to issuing a permit, the board shall conduct an on-site inspection of facility, equipment and auxiliary personnel of the applicant to determine if, in fact, all the requirements for the permit have been met. This inspection or evaluation, if required, shall be carried out by at least two members of the subcommittee. This evaluation is to be carried out in a manner following the principles, but not necessarily the procedures, set forth by the current edition of the AAOMS Office Anesthesia Evaluation Manual. On-site inspections are required and shall be performed for all Class 3a, 3b and 4 permitees. The board may reinspect annually, at its discretion, but shall perform an on-site inspection for all permit holders at least once every five years except Class 2 permit holders. The board reserves the right to conduct an on-site inspection whenever it deems necessary for all permit holders. All on-site inspections shall be held during regular business hours.

(b) Cancellation or failure to appear or be present for a scheduled evaluation by a permit holder, for an unexplained or unexcusable reason, shall be assessed a penalty fee two times the permit holders normal annual renewal fee. The penalty fee shall be separate from the annual renewal fees.

§30-4A-9. Office evaluations.

(a) The in-office evaluation shall include:

(1) Observation of one or more cases of anesthesia to determine the appropriateness of technique and adequacy of patient evaluation and care;

(2) Inspection of facilities, which shall include but not be limited to, the inspection of equipment, drugs and patient records and qualified monitor's certifications and documentation; and

(3) The evaluation shall be performed by a team appointed by the board and shall include a member of the subcommittee who holds a current anesthesia permit in the same class or in a higher class than that held by the permit holder being evaluated.

(4) Class 2 permit holders may be audited periodically as determined by the committee; and

(5) Class 3 and 4 permit holders shall be evaluated once every five years.

(b) A dentist utilizing a licensed dentist who holds a current anesthesia permit issued by the board shall have his or her office inspected to the level of a Class 4 permit as specified by section twelve of this article. The office is only approved at that level when the anesthesia permit holder is present and shall have the number of qualified monitors present as required by this article.

(c) In addition to the requirements of this article, a treating dentist who applies for a certificate to allow a CRNA to administer anesthesia and sedation to a patient shall maintain a permit as follows:

(1) A treating dentist who allows a CRNA to administer limited enteral sedation to a patient shall maintain a Class 3a permit for themselves and the administration site shall be inspected to a Class 4 permit level;

(2) A treating dentist who allows a CRNA to administer comprehensive parenteral sedation to a patient shall maintain a Class 3b permit for themselves and the administration site shall be inspected to a Class 4 permit level; and

(3) A treating dentist who allows a CRNA to administer general anesthesia/deep conscious sedation to a patient shall maintain a Class 4 permit for themselves and the administration site shall be inspected to a Class 4 permit level.

§30-4A-10. Reporting of Death, Serious Complications or Injury.

If a death, any serious complication or any injury occurs which may have resulted from the administration of general anesthesia/deep conscious sedation, conscious sedation/moderate sedation, anxiolysis/minimal sedation, or relative analgesia/minimal sedation, the licensee performing the dental procedure shall submit a written detailed report to the board within seventy-two hours of the incident along with copies of the patient's original complete dental records. If the anesthetic agent was administered by a person other than the person performing the dental procedure, that person shall also submit a detailed written report. The detailed report(s) shall include:

(1) Name, age and address of patient;

(2) Name of the licensee and other persons present during the incident along with their names and addresses;

(3) Address where the incident took place;

(4) Type of anesthesia and dosages of drugs administered to the patient including local anesthesia;

(5) A narrative description of the incident including approximate times and evolution of symptoms; and

(6) The anesthesia record and the signed informed consent form for the anesthesia.

§30-4A-11. Immunity from liability.

(a) Notwithstanding any other provision of law, no person providing information to the board or to the subcommittee may be held, by reason of having provided the information, to be civilly liable under any law unless the information was false and the person providing information knew or had reason to believe the such information was false.

(b) No member or employee of the board or the subcommittee may be held by reason of the performance by him or her of any duty, function or activity authorized or required of the board or the subcommittee to be civilly liable. The foregoing provisions of this subsection do not apply with respect to any action taken by any individual if the individual, in taking the action, was motivated by malice toward any person affected by the action.

§30-4A-12. Facility Inspections.

(a) The board shall perform an onsite evaluation of Class 3 and 4 applicants dental facilities, equipment, techniques and personnel prior to issuing a permit. The board may conduct further on-site evaluations.

(b) The board may inspect Class 2 applicants facilities.

§30-4A-13. Issuance of regular annual permits.

Upon the recommendation of the subcommittee, the board shall issue permits to applicable dentists. An anesthesia permit shall be renewed annually: Provided, That the permittee meets the requirements of this article and has not been subject to disciplinary action prohibiting issuance of the permit.

§30-4A-14. Waiting period for reapplication or reinspection of facilities.

A dentist whose application has been denied for failure to satisfy the requirements in the application procedure or the on-site evaluation shall wait thirty days from the date of the denial prior to reapplying and shall submit to another on-site evaluation prior to receiving a permit. The board and the subcommittee shall promptly reinspect the applicant dentist's facilities, techniques, equipment and personnel within ninety days after the applicant has made reapplication.

§30-4A-15. Application and annual renewal of regular permits; fees.

The board shall require an initial application fee and an annual renewal fee for Class 2, Class 3 and 4 Permits. Permits expire annually. The board shall renew permits for the use of anesthesia after the permittee satisfies the application for renewal.

§30-4A-16. Violations of article; penalties for practicing anesthesia without a permit.

Violations of any of the provisions of this article, whether intentional or unintentional, may result in the revocation or suspension of the dentist's permit to administer anesthesia; multiple or repeated violations or gross infractions, such as practicing anesthesia without a valid permit may result in suspension of the dentist's license to practice dentistry for up to one year as well as other disciplinary measures as deemed appropriate by the board.

§30-4A-17. Appointment of Subcommittee; credentials review; and on-site inspections.

(a) The board shall appoint a subcommittee to carry out the review and on-site inspection of any dentist applying for or renewing a permit under this article.

(b) The subcommittee shall make a recommendation for issuing or revoking a permit under this article.

(c) This subcommittee shall be known as the West Virginia Board of Dentistry Subcommittee on Anesthesia. The subcommittee shall, at a minimum, consist of one member of the board who shall act as chairman of the subcommittee and two members holding a Class 4 permit and two members holding a Class 3 permit.

(d) The subcommittee shall adopt policies and procedures related to the regulation of general anesthesia/deep conscious sedation, conscious sedation/moderate sedation, anxiolysis/minimal sedation, and relative analgesia/minimal sedation with the same being approved by the board. The subcommittee members shall be paid and reimbursed expenses pursuant to article one of this chapter.

§30-4A-18.

Repealed.

Acts, 2013 Reg. Sess., Ch. 150.

§30-4B-1. Unlawful acts.

(a) It is unlawful for any person, other than a dentist or other dental practitioner, to sell, offer for sale or furnish any dental prosthesis or other dental laboratory service to any person who is not a dentist or other dental practitioner.

(b) It is unlawful for any person to perform dental laboratory services without a work authorization: Provided, That this subsection does not apply to a dentist or other dental practitioner, or to their employees working under their direct supervision, performing dental laboratory services as a part of their own dental practice and for their own dental patients.

(c) It is unlawful for any dental laboratory to perform any dental laboratory service without the issuance of a work authorization by a dentist or other dental practitioner.

(d) It is unlawful for any dental laboratory or dentist who fabricates a full upper or full lower set of prosthetic dentures not to affix upon the dentures, in a nonremovable manner, the name of the patient, the initials of the dentist's state of practice and license identification.

(e) It is unlawful for any dental laboratory either directly or indirectly:

(1) To advertise that it is engaged in the business of performing dental laboratory services;

(2) To advertise it performs dental laboratory services for members of the public;

(3) To advertise a price for the performance of dental laboratory services; or

(4) To advertise techniques used or materials employed by it in the performance of dental laboratory services: Provided, That this subsection does not prevent dental laboratories from advertising in dental journals or in other professional dental publications or from communicating directly to a dentist and other dental practitioner or from listing the dental laboratory in business and telephone directories if the business and telephone directory announcements are limited to name, address and telephone number and do not occupy more than the number of lines necessary to disclose the information, or from displaying the trade name and address of the dental laboratory on the door of its place of business or on name plates or door plates exhibited on the interior or exterior of the place of business.

§30-4B-2. Work authorization required; contents; retention.

(a) No dental laboratory technician may perform any dental laboratory service without the issuance of a work authorization by a dentist or other dental practitioner.

(b) Each work authorization shall contain:

(1) The name and address of the dental laboratory to which it is directed;

(2) The case identification;

(3) A specification of the materials to be used;

(4) A description of the work to be done and, if necessary, diagrams thereof;

(5) The date of issue; and

(6) The signature and address of the dentist or other dental practitioner issuing the work authorization.

(c)A separate work authorization shall be issued for each patient of the dentist or other dental practitioner for whom a dental laboratory service is to be performed.

(d) Every work authorization shall be made in duplicate with the original being delivered to the dental laboratory to which it is directed and the copy being retained in the office of the issuing dentist or other dental practitioner. A work authorization shall be saved for a period of two years from its date of issue.

§30-4B-3. Denture identification.

 A dental laboratory or a dentist who engages in dental laboratory services and who fabricates any full upper or full lower set of prosthetic dentures shall affix upon the dentures, in a nonremovable manner, the name of the patient for whom the dentures are made and the initials of the dentist's state of practice and license identification number.

§30-4B-4. Review of dental laboratory services.

The board may review the dental laboratory services of a dental laboratory on a random and general basis without any requirement of a formal complaint or suspicion of impropriety.

§30-4B-5.

Repealed.

Acts, 2013 Reg. Sess., Ch. 150.

§30-4B-6.

Repealed.

Acts, 2013 Reg. Sess., Ch. 150.

§30-4B-7.

Repealed.

Acts, 2013 Reg. Sess., Ch. 150.

§30-4B-8.

Repealed.

Acts, 2013 Reg. Sess., Ch. 150.

§30-5-1. Short title.

This article shall be known as and may be cited as the "The Larry W. Border Pharmacy Practice Act".

§30-5-1a.

Repealed.

Acts, 2013 Reg. Sess., Ch. 148.

§30-5-1b.

Repealed.

Acts, 2013 Reg. Sess., Ch. 148.

§30-5-2. Unlawful acts.

(a) It is unlawful for any person in this state to practice or offer to practice pharmacist care without a license pursuant to the provisions of this article; or to practice or offer to assist in the practice of pharmacist care without being registered pursuant to the provisions of this article. Further, it is unlawful to advertise or use any title or description tending to convey or give the impression that he or she is a pharmacist or pharmacy technician, unless the person is licensed or registered under the provisions of this article.

(b) A business entity may not render any service or engage in any activity which, if rendered or engaged in by an individual, would constitute the practice of pharmacist care, except through a licensee.

(c) It is unlawful for the proprietor of a pharmacy or a ambulatory health care facility to permit a person, who is not a licensed pharmacist, to practice pharmacist care: Provided, That a charitable clinic pharmacy may permit a licensed prescribing practitioner to act in place of the pharmacist when no pharmacist is present in the charitable clinic.

§30-5-2a.

Repealed.

Acts, 2013 Reg. Sess., Ch. 148.

§30-5-3. Applicable law.

The practices authorized under the provisions of this article and the Board of Pharmacy are subject to article one of this chapter, the provisions of this article, and any rules promulgated pursuant this article.

§30-5-3a.

Repealed.

Acts, 2013 Reg. Sess., Ch. 148.

§30-5-4. Definitions.

As used in this article:

“Ambulatory health care facility” includes any facility defined in §16-5B-1 et seq. of this code, that also has a pharmacy, offers pharmacist care, or is otherwise engaged in the practice of pharmacist care.

“Active Ingredients” means chemicals, substances, or other components of articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of diseases in humans or animals or for use as nutritional supplements.

“Administer” means the direct application of a drug to the body of a patient or research subject by injection, inhalation, ingestion, or any other means.

“Board” means the West Virginia Board of Pharmacy.

“Board authorization” means a license, registration, or permit issued under this article.

“Chain Pharmacy Warehouse” means a permanent physical location for drugs or devices that acts as a central warehouse and performs intracompany sales and transfers of prescription drugs or devices to chain pharmacies, which are members of the same affiliated group, under common ownership and control.

“Charitable clinic pharmacy” means a clinic or facility organized as a not-for-profit corporation that has a pharmacy, offers pharmacist care, or is otherwise engaged in the practice of pharmacist care and dispenses its prescriptions free of charge to appropriately screened and qualified indigent patients.

“Collaborative pharmacy practice” is that practice of pharmacist care where one or more pharmacists have jointly agreed, on a voluntary basis, to work in conjunction with one or more physicians under written protocol where the pharmacist or pharmacists may perform certain patient care functions authorized by the physician or physicians under certain specified conditions and limitations.

“Collaborative pharmacy practice agreement” is a written and signed agreement, which is a physician directed approach, that is entered into between an individual physician or physician group, or for a medical provider in training where the agreement is signed by the supervising physician or chairperson of the medical department where the medical provider in training is practicing, and an individual pharmacist or pharmacists that provides for collaborative pharmacy practice for the purpose of drug therapy management of a patient.

“Common Carrier” means any person or entity who undertakes, whether directly or by any other arrangement, to transport property including prescription drugs for compensation.

“Component” means any active ingredient or added substance intended for use in the compounding of a drug product, including those that may not appear in such product.

“Compounding” means:

(A) The preparation, mixing, assembling, packaging, or labeling of a drug or device:

(i) As the result of a practitioner’s prescription drug order or initiative based on the practitioner/patient/pharmacist relationship in the course of professional practice for sale or dispensing; or

(ii) For the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale or dispensing; and

(B) The preparation of drugs or devices in anticipation of prescription drug orders based on routine, regularly observed prescribing patterns.

“Deliver” or “delivery” means the actual, constructive, or attempted transfer of a drug or device from one person to another, whether or not for a consideration.

“Device” means an instrument, apparatus, implement or machine, contrivance, implant or other similar or related article, including any component part or accessory, which is required under federal law to bear the label, “Caution: Federal or state law requires dispensing by or on the order of a physician.”

“Digital Signature” means an electronic signature based upon cryptographic methods of originator authentication, and computed by using a set of rules and a set of parameters so that the identity of the signer and the integrity of the data can be verified.

“Dispense” or “dispensing” means the interpretation, evaluation, and implementation of a prescription drug order, including the preparation, verification, and delivery of a drug or device to a patient or patient’s agent in a suitable container appropriately labeled for subsequent administration to, or use by, a patient.

“Distribute” or “Distribution” means to sell, offer to sell, deliver, offer to deliver, broker, give away, or transfer a drug, whether by passage of title, physical movement, or both. The term does not include:

(A) To dispense or administer;

(B) (i) Delivering or offering to deliver a drug by a common carrier in the usual course of business as a common carrier; or providing a drug sample to a patient by a practitioner licensed to prescribe such drug;

(ii) A health care professional acting at the direction and under the supervision of a practitioner; or the pharmacy of a hospital or of another health care entity that is acting at the direction of such a practitioner and that received such sample in accordance with the Prescription Drug Marketing Act and regulations to administer or dispense;

(iii) Intracompany sales.

“Drop shipment” means the sale of a prescription drug to a wholesale distributor by the manufacturer of the prescription drug or by that manufacturer’s colicensed product partner, that manufacturer’s third-party logistics provider, that manufacturer’s exclusive distributor, or by an authorized distributor of record that purchased the product directly from the manufacturer or from one of these entities whereby:

(A) The wholesale distributor takes title to but not physical possession of such prescription drug;

(B) The wholesale distributor invoices the pharmacy, pharmacy warehouse, or other person authorized by law to dispense or administer such drug; and

(C) The pharmacy, pharmacy warehouse, or other person authorized by law to dispense or administer such drug receives delivery of the prescription drug directly from the manufacturer or from that manufacturer’s colicensed product partner, that manufacturer’s third-party logistics provider, that manufacturer’s exclusive distributor, or from an authorized distributor of record that purchased the product directly from the manufacturer or from one of these entities.

“Drug” means:

(A) Articles recognized as drugs by the United States Food and Drug Administration, or in any official compendium, or supplement;

(B) An article, designated by the board, for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in humans or other animals;

(C) Articles, other than food, intended to affect the structure or any function of the body of human or other animals; and

(D) Articles intended for use as a component of any articles specified in paragraph (A), (B), or (C) of this subdivision.

“Drug regimen review” includes, but is not limited to, the following activities:

(A) Evaluation of the prescription drug orders and if available, patient records for:

(i) Known allergies;

(ii) Rational therapy-contraindications;

(iii) Reasonable dose and route of administration; and

(iv) Reasonable directions for use.

(B) Evaluation of the prescription drug orders and patient records for duplication of therapy.

(C) Evaluation of the prescription drug for interactions or adverse effects which may include, but are not limited to, any of the following:

(i) Drug-drug;

(ii) Drug-food;

(iii) Drug-disease; and

(iv) Adverse drug reactions.

(D) Evaluation of the prescription drug orders and if available, patient records for proper use, including overuse and underuse and optimum therapeutic outcomes.

“Drug therapy management” means the review of drug therapy regimens of patients by a pharmacist for the purpose of evaluating and rendering advice to a physician regarding adjustment of the regimen in accordance with the collaborative pharmacy practice agreement. Decisions involving drug therapy management shall be made in the best interest of the patient. Drug therapy management is limited to:

(A) Implementing, modifying, and managing drug therapy according to the terms of the collaborative pharmacy practice agreement;

(B) Collecting and reviewing patient histories;

(C) Performing patient evaluations that are mutually agreed upon in the collaborative agreement;

(D) Ordering screening laboratory tests that are dose related and specific to the patient’s medication or are protocol driven and are also specifically set out in the collaborative pharmacy practice agreement between the pharmacist and physician.

“Electronic data intermediary” means an entity that provides the infrastructure to connect a computer system, hand-held electronic device, or other electronic device used by a prescribing practitioner with a computer system or other electronic device used by a pharmacy to facilitate the secure transmission of:

(A) An electronic prescription order;

(B) A refill authorization request;

(C) A communication; or

(D) Other patient care information.

“E-prescribing” means the transmission, using electronic media, of prescription or prescription-related information between a practitioner, pharmacist, pharmacy benefit manager, or health plan as defined in 45 CFR §160.103, either directly or through an electronic data intermediary. E-prescribing includes, but is not limited to, two-way transmissions between the point of care and the pharmacist. E-prescribing may also be referenced by the terms “electronic prescription” or “electronic order”.

“Electronic Signature” means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.

“Electronic transmission” means transmission of information in electronic form or the transmission of the exact visual image of a document by way of electronic equipment.

“Emergency medical reasons” include, but are not limited to, transfers of a prescription drug by one pharmacy to another pharmacy to alleviate a temporary shortage of a prescription drug; sales to nearby emergency medical services, i.e., ambulance companies and firefighting organizations in the same state or same marketing or service area, or nearby licensed practitioners of prescription drugs for use in the treatment of acutely ill or injured persons; and provision of minimal emergency supplies of prescription drugs to nearby nursing homes for use in emergencies or during hours of the day when necessary prescription drugs cannot be obtained.

“Exclusive distributor” means an entity that:

(A) Contracts with a manufacturer to provide or coordinate warehousing, wholesale distribution, or other services on behalf of a manufacturer and who takes title to that manufacturer’s prescription drug, but who does not have general responsibility to direct the sale or disposition of the manufacturer’s prescription drug; and

(B) Is licensed as a wholesale distributor under this article.

“FDA” means the Food and Drug Administration, a federal agency within the United States Department of Health and Human Services.

“Health care entity” means a person that provides diagnostic, medical, pharmacist care, surgical, dental treatment, or rehabilitative care but does not include a wholesale distributor.

“Health information” means any information, whether oral or recorded in a form or medium, that:

(A) Is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse, and

(B) Relates to the past, present, or future physical or mental health or condition of an individual; or the past, present, or future payment for the provision of health care to an individual.

“Heath care system” means an organization of people, institutions, and resources that deliver health care services to meet the health needs of a target population.

“HIPAA” is the federal Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191).

“Immediate container” means a container and does not include package liners.

“Individually identifiable health information” is information that is a subset of health information, including demographic information collected from an individual and is created or received by a health care provider, health plan, employer, or health care clearinghouse; and relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and that identifies the individual; or with respect to which there is a reasonable basis to believe the information can be used to identify the individual.

“Intracompany sales” means any transaction between a division, subsidiary, parent, or affiliated or related company under the common ownership and control of a corporate or other legal business entity.

“Label” means a display of written, printed, or graphic matter upon the immediate container of any drug or device.

“Labeling” means the process of preparing and affixing a label to a drug container exclusive, however, of a labeling by a manufacturer, packer, or distributor of a nonprescription drug or commercially packaged prescription drug or device.

“Long-Term care facility” means a nursing home, retirement care, mental care, or other facility or institution that provides extended health care to resident patients.

“Mail-order pharmacy” means a pharmacy, regardless of its location, which dispenses greater than 25 percent of its prescription drugs via the mail or other delivery services.

“Manufacturer” means any person who is engaged in manufacturing, preparing, propagating, processing, packaging, repackaging, or labeling of a prescription drug, whether within or outside this state.

“Manufacturing” means the production, preparation, propagation, or processing of a drug or device, either directly or indirectly, by extraction from substances of natural origin or independently by means of chemical or biological synthesis and includes any packaging or repackaging of the substance or substances or labeling or relabeling of its contents and the promotion and marketing of the drugs or devices. Manufacturing also includes the preparation and promotion of commercially available products from bulk compounds for resale by pharmacies, practitioners, or other persons.

“Medical order” means a lawful order of a practitioner that may or may not include a prescription drug order.

“Medication therapy management” is a distinct service or group of services that optimize medication therapeutic outcomes for individual patients. Medication therapy management services are independent of, but can occur in conjunction with, the provision of a medication or a medical device. Medication therapy management encompasses a broad range of professional activities and responsibilities within the licensed pharmacist’s scope of practice.

These services may include the following, according to the individual needs of the patient:

(A) Performing or obtaining necessary assessments of the patient’s health status pertinent to medication therapy management;

(B) Optimize medication use, performing medication therapy, and formulating recommendations for patient medication care plans;

(C) Developing therapeutic recommendations, to resolve medication related problems;

(D) Monitoring and evaluating the patient’s response to medication therapy, including safety and effectiveness;

(E) Performing a comprehensive medication review to identify, resolve, and prevent medication-related problems, including adverse drug events;

(F) Documenting the care delivered and communicating essential information to the patient’s primary care providers;

(G) Providing verbal education and training designed to enhance patient understanding and appropriate use of his or her medications;

(H) Providing information, support services, and resources designed to enhance patient adherence with his or her medication therapeutic regimens;

(I) Coordinating and integrating medication therapy management services within the broader health care management services being provided to the patient; and

(J) Such other patient care services as may be allowed by law.

“Misbranded” means a drug or device that has a label that is false or misleading in any particular manner; or the label does not bear the name and address of the manufacturer, packer, or distributor and does not have an accurate statement of the quantities of the active ingredients in the case of a drug; or the label does not show an accurate monograph for prescription drugs.

“Nonprescription drug” means a drug which may be sold without a prescription and which is labeled for use by the consumer in accordance with the requirements of the laws and rules of this state and the federal government.

“Normal distribution channel” means a chain of custody for a prescription drug that goes directly or by drop shipment, from a manufacturer of the prescription drug, the manufacturer’s third-party logistics provider, or the manufacturer’s exclusive distributor to:

(A) A wholesale distributor to a pharmacy to a patient or other designated persons authorized by law to dispense or administer such prescription drug to a patient;

(B) A wholesale distributor to a chain pharmacy warehouse to that chain pharmacy warehouse’s intracompany pharmacy to a patient or other designated persons authorized by law to dispense or administer such prescription drug to a patient;

(C) A chain pharmacy warehouse to that chain pharmacy warehouse’s intracompany pharmacy to a patient or other designated persons authorized by law to dispense or administer such prescription drug to a patient;

(D) A pharmacy or to other designated persons authorized by law to dispense or administer such prescription drug to a patient; or

(E) As prescribed by the board’s legislative rules.

“Patient counseling” means the communication by the pharmacist of information, as prescribed further in the rules of the board, to the patient to improve therapy by aiding in the proper use of drugs and devices.

“Pedigree” means a statement or record in written form or electronic form, approved by the board, that records each wholesale distribution of any given prescription drug (excluding veterinary prescription drugs), which leaves the normal distribution channel.

“Person” means an individual, corporation, partnership, association, or any other legal entity, including government.

“Pharmacist” means an individual currently licensed by this state to engage in the practice of pharmacist care.

“Pharmacist Care” means the provision by a pharmacist of patient care activities, with or without the dispensing of drugs or devices, intended to achieve outcomes related to the cure or prevention of a disease, elimination, or reduction of a patient’s symptoms, or arresting or slowing of a disease process and as provided for in section ten.

“Pharmacist-in-charge” means a pharmacist currently licensed in this state who accepts responsibility for the operation of a pharmacy in conformance with all laws and legislative rules pertinent to the practice of pharmacist care and the distribution of drugs and who is personally in full charge of the pharmacy and pharmacy personnel.

“Pharmacist’s scope of practice pursuant to the collaborative pharmacy practice agreement” means those duties and limitations of duties placed upon the pharmacist by the collaborating physician.

“Pharmacy” means any place within this state where drugs are dispensed and pharmacist care is provided and any place outside of this state where drugs are dispensed and pharmacist care is provided to residents of this state.

“Pharmacy Intern” or “Intern” means an individual who is currently licensed to engage in the practice of pharmacist care while under the supervision of a pharmacist.

“Pharmacy related primary care” means the pharmacist’s activities in patient education, health promotion, selection and use of over the counter drugs and appliances and referral or assistance with the prevention and treatment of health related issues and diseases.

“Pharmacy Technician” means a person registered with the board to practice certain tasks related to the practice of pharmacist care as permitted by the board.

“Physician” means an individual currently licensed, in good standing and without restrictions, as an allopathic physician by the West Virginia Board of Medicine or an osteopathic physician by the West Virginia Board of Osteopathic Medicine.

“Practice notification” means a written notice to the appropriate licensing board that an individual physician or physician group or a medical provider in training where the agreement is signed by the supervising physician or chairperson of the medical department where the medical provider in training is practicing, and an individual pharmacist or pharmacists will practice in collaboration.

“Practice of telepharmacy” means the provision of pharmacist care by properly licensed pharmacists located within United States jurisdictions through the use of telecommunications or other technologies to patients or their agents at a different location that are located within United States jurisdictions.

“Practitioner” means an individual authorized by a jurisdiction of the United States to prescribe drugs in the course of professional practices, as allowed by law.

“Prescription drug” means any human drug required by federal law or regulation to be dispensed only by prescription, including finished dosage forms and active ingredients subject to section 503(b) of the federal Food, Drug and Cosmetic Act.

“Prescription or prescription drug order” means a lawful order from a practitioner for a drug or device for a specific patient, including orders derived from collaborative pharmacy practice, where a valid patient-practitioner relationship exists, that is communicated to a pharmacist in a pharmacy.

“Product Labeling” means all labels and other written, printed, or graphic matter upon any article or any of its containers or wrappers, or accompanying such article.

“Repackage” means changing the container, wrapper, quantity, or product labeling of a drug or device to further the distribution of the drug or device.

“Repackager” means a person who repackages.

“Therapeutic equivalence” mean drug products classified as therapeutically equivalent can be substituted with the full expectation that the substituted product will produce the same clinical effect and safety profile as the prescribed product which contain the same active ingredient(s); dosage form and route of administration; and strength.

“Third-party logistics provider” means a person who contracts with a prescription drug manufacturer to provide or coordinate warehousing, distribution, or other services on behalf of a manufacturer, but does not take title to the prescription drug or have general responsibility to direct the prescription drug’s sale or disposition. A third-party logistics provider shall be licensed as a wholesale distributor under this article and, in order to be considered part of the normal distribution channel, shall also be an authorized distributor of record.

“Valid patient-practitioner relationship” means the following have been established:

(A) A patient has a medical complaint;

(B) A medical history has been taken;

(C) A face-to-face physical examination adequate to establish the medical complaint has been performed by the prescribing practitioner or in the instances of telemedicine through telemedicine practice approved by the appropriate practitioner board; and

(D) Some logical connection exists between the medical complaint, the medical history, and the physical examination and the drug prescribed.

“Wholesale distribution” and “wholesale distributions” mean distribution of prescription drugs, including directly or through the use of a third-party logistics provider or any other situation in which title, ownership, or control over the prescription drug remains with one person or entity but the prescription drug is brought into this state by another person or entity on his, her, or its behalf, to persons other than a consumer or patient, but does not include:

(A) Intracompany sales, as defined in this section;

(B) The purchase or other acquisition by a hospital or other health care entity that is a member of a group purchasing organization of a drug for its own use from the group purchasing organization or from other hospitals or health care entities that are members of such organizations;

(C) The sale, purchase, or trade of a drug or an offer to sell, purchase or trade a drug by a charitable organization described in section 501(c)(3) of the United States Internal Revenue Code of 1986 to a nonprofit affiliate of the organization to the extent otherwise permitted by law;

(D) The sale, purchase, or trade of a drug or an offer to sell, purchase, or trade a drug among hospitals or other health care entities that are under common control. For purposes of this article, “common control” means the power to direct or cause the direction of the management and policies of a person or an organization, whether by ownership of stock, voting rights, by contract, or otherwise;

(E) The sale, purchase, or trade of a drug or an offer to sell, purchase or trade a drug for “emergency medical reasons” for purposes of this article includes transfers of prescription drugs by a retail pharmacy to another retail pharmacy to alleviate a temporary shortage, except that the gross dollar value of such transfers shall not exceed five percent of the total prescription drug sales revenue of either the transferor or transferee pharmacy during any 12 consecutive month period;

(F) The sale, purchase, or trade of a drug, an offer to sell, purchase, or trade a drug or the dispensing of a drug pursuant to a prescription;

(G) The distribution of drug samples by manufacturers’ representatives or distributors’ representatives, if the distribution is permitted under federal law [21 U. S. C. 353(d)];

(H) Drug returns by a pharmacy or chain drug warehouse to wholesale drug distributor or the drug’s manufacturer; or

(J) The sale, purchase, or trade of blood and blood components intended for transfusion.

“Wholesale drug distributor” or “wholesale distributor” means any person or entity engaged in wholesale distribution of prescription drugs, including, but not limited to, manufacturers, repackers, own-label distributors, jobbers, private-label distributors, brokers, warehouses, including manufacturers’ and distributors’ warehouses, chain drug warehouses and wholesale drug warehouses, independent wholesale drug traders, prescription drug repackagers, physicians, dentists, veterinarians, birth control and other clinics, individuals, hospitals, nursing homes and/or their providers, health maintenance organizations and other health care providers, and retail and hospital pharmacies that conduct wholesale distributions, including, but not limited to, any pharmacy distributor as defined in this section. A wholesale drug distributor shall not include any for hire carrier or person or entity hired solely to transport prescription drugs.

§30-5-5. West Virginia Board of Pharmacy.

(a) The West Virginia Board of Pharmacy is continued. The members of the board in office on July 1, 2013, shall, unless sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and qualified.

(b) The Governor, by and with the advice and consent of the Senate, shall appoint:

(1) Five members who are licensed to practice pharmacist care in this state; and

(2) Two citizen members, who are not licensed under the provisions of this article, and who do not perform any services related to the practice of the pharmacist care regulated under the provisions of this article.

(c) After the initial appointment term, the appointment term is five years. A member may not serve more than two consecutive terms. A member who has served two consecutive full terms may not be reappointed for at least one year after completion of his or her second full term. A member may continue to serve until his or her successor has been appointed and qualified.

(d) Each licensed member of the board, at the time of his or her appointment, shall have held a license in this state for a period of not less than three years immediately preceding the appointment.

(e) Each member of the board shall be a resident of this state during the appointment term.

(f) A vacancy on the board shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant.

(g) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.

(h) A licensed member of the board immediately and automatically forfeits membership to the board if his or her license to practice is suspended or revoked in any jurisdiction.

(i) A member of the board immediately and automatically forfeits membership to the board if he or she is convicted of a felony under the laws of any jurisdiction or becomes a nonresident of this state.

(j) The board shall elect annually one of its members as president, one member as vice president and one member as treasurer who shall serve at the will and pleasure of the board.

(k) Each member of the board is entitled to receive compensation and expense reimbursement in accordance with article one of this chapter.

(l) A simple majority of the membership serving on the board at a given time is a quorum for the transaction of business.

(m) The board shall hold at least two meetings annually. Other meetings shall be held at the call of the chairperson or upon the written request of three members, at the time and place as designated in the call or request.

(n) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state.

(o) The members of the board when acting in good faith and without malice shall enjoy immunity from individual civil liability while acting within the scope of their duties as board members.

§30-5-5a.

Repealed.

Acts, 2013 Reg. Sess., Ch. 148.

§30-5-5b.

Repealed.

Acts, 2013 Reg. Sess., Ch. 148.

§30-5-6. Powers and duties of the board.

(a) (1) The board has all the powers and duties set forth in this article, by rule, in §30-1-1 et seq. of this code and elsewhere in law, including the power to:

(2) Hold meetings;

(3) Establish additional requirements for a license, permit, and registration;

(4) Establish procedures for submitting, approving, and rejecting applications for a license, permit, and registration;

(5) Determine the qualifications of any applicant for a license, permit, and registration;

(6) Establish a fee schedule;

(7) Issue, renew, deny, suspend, revoke, or reinstate a license, permit, and registration;

(8) Prepare, conduct, administer, and grade written, oral, or written and oral examinations for a license and registration and establish what constitutes passage of the examination;

(9) Contract with third parties to administer the examinations required under the provisions of this article;

(10) Maintain records of the examinations the board or a third party administers, including the number of persons taking the examination and the pass and fail rate;

(11) Regulate mail order pharmacies;

(12) Maintain an office, and hire, discharge, establish the job requirements, and fix the compensation of employees and contract with persons necessary to enforce the provisions of this article. Inspectors shall be licensed pharmacists;

(13) Investigate alleged violations of the provisions of this article, legislative rules, orders, and final decisions of the board;

(14) Conduct disciplinary hearings of persons regulated by the board;

(15) Determine disciplinary action and issue orders;

(16) Institute appropriate legal action for the enforcement of the provisions of this article;

(17) Maintain an accurate registry of names and addresses of all persons regulated by the board;

(18) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;

(19) Propose rules in accordance with the provisions of §29A-3-1 et seq. of this code to implement the provisions of this article;

(20) Sue and be sued in its official name as an agency of this state;

(21) Confer with the Attorney General or his or her assistant in connection with legal matters and questions; and

(22) Take all other actions necessary and proper to effectuate the purposes of this article.

(b) The board is exempt from state purchasing laws, legislative rules, and policies for the purposes of spending grant money if the grant is in relation to substance use and controlled substances.

§30-5-6a.

Repealed.

Acts, 2013 Reg. Sess., Ch. 148.

§30-5-7. Rule-making authority.

(a) The board shall propose rules for legislative approval, in accordance with the provisions of §29A-3-1 et seq. of this code, to implement the provisions of this article and §60A-2-201 et seq., §60A-3-301 et seq., §60A-8-1 et seq., §60A-9-1 et seq., and §60A-10-1 et seq. of this code, including:

(1) Standards and requirements for a license, permit, and registration;

(2) Educational and experience requirements;

(3) Procedures for examinations and reexaminations;

(4) Requirements for third parties to prepare, administer or prepare, and administer examinations and reexaminations;

(5) The passing grade on the examination;

(6) Procedures for the issuance and renewal of a license, permit, and registration;

(7) A fee schedule;

(8) Continuing education requirements;

(9) Set standards for professional conduct;

(10) Establish equipment and facility standards for pharmacies;

(11) Approve courses and standards for training pharmacist technicians;

(12) Regulation of charitable clinic pharmacies;

(13) Regulation of mail-order pharmacies: Provided, That until the board establishes requirements that provide further conditions for pharmacists who consult with or who provide pharmacist care to patients regarding prescriptions dispensed in this state by a mail-order pharmacy, the pharmacist in charge of the out-of-state mail-order pharmacy shall be licensed in West Virginia and any other pharmacist providing pharmacist care from the mail-order pharmacy shall be licensed in the state where the pharmacy is located;

(14) Agreements with organizations to form pharmacist recovery networks;

(15) Create an alcohol or chemical dependency treatment program;

(16) Establish a ratio of pharmacy technicians to on-duty pharmacist operating in any outpatient, mail order, or institutional pharmacy;

(17) Regulation of telepharmacy;

(18) The minimum standards for a charitable clinic pharmacy and rules regarding the applicable definition of a pharmacist-in-charge, who may be a volunteer, at charitable clinic pharmacies: Provided, That a charitable clinic pharmacy may not be charged any applicable licensing fees and such clinics may receive donated drugs;

(19) Establish standards for substituted drug products;

(20) Establish the regulations for E-prescribing;

(21) Establish the proper use of the automated data processing system;

(22) Registration and control of the manufacture and distribution of controlled substances within this state;

(23) Regulation of pharmacies;

(24) Sanitation and equipment requirements for wholesalers, distributers, and pharmacies;

(25) Procedures for denying, suspending, revoking, reinstating, or limiting the practice of a licensee, permittee, or registrant;

(26) Regulations on prescription paper as provided in §16-5-27 of this code;

(27) Regulations on controlled substances as provided in §60A-2-201 et seq. of this code;

(28) Regulations on manufacturing, distributing, or dispensing any controlled substance as provided in §60A-3-301 of this code;

(29) Regulations on wholesale drug distribution as provided in §60A-8-1 et seq. of this code;

(30) Regulations on controlled substances monitoring as provided in §60A-9-1 et seq. of this code;

(31) Regulations on Methamphetamine Laboratory Eradication Act as provided in §60A-10-1 et seq. of this code;

(32) Establish and maintain an official prescription paper program; and

(33) Any other rules necessary to effectuate the provisions of this article.

(b) The board may provide an exemption to the pharmacist-in-charge requirement for the opening of a new retail pharmacy or during a declared emergency.

(c) The board, the Board of Medicine, and the Board of Osteopathic Medicine shall jointly agree and propose rules concerning collaborative pharmacy practice for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code.

(d) The board, with the advice of the Board of Medicine and the Board of Osteopathic Medicine, shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code to perform influenza and pneumonia immunizations on a person of 18 years of age or older. These rules shall provide, at a minimum, for the following:

(1) Establishment of a course, or provide a list of approved courses, in immunization administration. The courses shall be based on the standards established for such courses by the Centers for Disease Control and Prevention in the public health service of the United States Department of Health and Human Services;

(2) Definitive treatment guidelines which shall include, but not be limited to, appropriate observation for an adverse reaction of an individual following an immunization;

(3) Prior to administration of immunizations, a pharmacist shall have completed a board- approved immunization administration course and completed an American Red Cross or American Heart Association basic life-support training, and maintain certification in the same;

(4) Continuing education requirements for this area of practice;

(5) Reporting requirements for pharmacists administering immunizations to report to the primary care physician or other licensed health care provider as identified by the person receiving the immunization;

(6) Reporting requirements for pharmacists administering immunizations to report to the West Virginia Statewide Immunization Information;

(7) That a pharmacist may not delegate the authority to administer immunizations to any other person, unless administered by a licensed pharmacy intern or registered pharmacy technician under the direct supervision of a pharmacist of whom the pharmacist, the pharmacist technician and intern have successfully completed all board-required training; and

(8) Any other provisions necessary to implement the provisions of this section.

(e) The Board of Medicine and the Board of Osteopathic Medicine shall propose joint rules, by July 1, 2023, for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code to permit a licensed pharmacist, pharmacy technician or pharmacy intern to administer immunizations in accordance with definitive treatment guidelines for immunizations promulgated by the latest notice from the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention (CDC), including, but not limited to, the CDC’s recommended immunization schedule for adults, children, and adolescents. In addition, the joint rules shall permit a licensed pharmacist, pharmacy technician or pharmacy intern to administer immunizations in accordance with definitive treatment guidelines for immunizations promulgated by the latest notice from the CDC, including, but not limited to, the CDC’s recommended immunization schedule for adults, children, and adolescents to a person age 3 through 17, with written informed parental consent and there are no contraindications to that patient receiving that vaccine. These rules shall provide, at a minimum, the same provisions contained in subsections (d)(1) through (d)(8), inclusive, of this section.

(f) All of the board’s rules in effect and not in conflict with these provisions shall remain in effect until they are amended or rescinded.

§30-5-7a.

Repealed.

Acts, 2013 Reg. Sess., Ch. 148.

§30-5-7b.

Repealed.

Acts 2013, Reg. Sess., c. 148.

§30-5-7c.

Repealed.

Acts 2013, Reg. Sess., c. 148.

§30-5-8. Fees; special revenue account; administrative fines.

(a) All fees and other moneys, except fines, received by the board shall be deposited in a separate special revenue fund in the State Treasury designated the "Board of Pharmacy Fund", which fund is continued. The fund is used by the board for the administration of this article. Except as may be provided in article one of this chapter, the board shall retain the amounts in the special revenue account from year to year. Any compensation or expense incurred under this article is not a charge against the General Revenue Fund.

(b) The board shall deposit any amounts received as administrative fines imposed pursuant to this article into the General Revenue Fund of the State Treasury.

§30-5-9. Qualifications for licensure as pharmacist;

(a) To be eligible for a license to practice pharmacist care under the provisions of this article, the applicant shall:

(1) Submit a written application to the board;

(2) Be eighteen years of age or older;

(3) Pay all applicable fees;

(4) Graduate from an accredited school of pharmacy;

(5) Complete at least fifteen hundred hours of internship in a pharmacy under the instruction and supervision of a pharmacist;

(6) Pass an examination or examinations approved by the board;

(7) Not be an alcohol or drug abuser, as these terms are defined in section eleven, article one-a, chapter twenty-seven of this code: Provided, That an applicant in an active recovery process, which may, in the discretion of the board, be evidenced by participation in a twelve-step program or other similar group or process, may be considered;

(8) Present to the board satisfactory evidence that he or she is a person of good moral character, has not been convicted of a felony involving the sale or distribution of controlled substances;

(9) Not been convicted in any jurisdiction of any other felony or crime which bears a rational nexus to the individual's ability to practice pharmacist care, Provided, That an applicant with a felony conviction other than the felony conviction specified in subdivision eight of this section may apply to the board for licensure no sooner than five years after the date of the conviction. The board shall evaluate each applicant on a case by case basis; and

(10) Has fulfilled any other requirement specified by the board in rule.

(b) An applicant from another jurisdiction shall comply with all the requirements of this article.

§30-5-9a.

Repealed.

Acts, 2013 Reg. Sess., Ch. 148.

§30-5-10. Scope practice for licensed pharmacist;

(a) A licensed pharmacist may:

(1) Provide care related to the interpretation, evaluation, and implementation of medical orders;

(2) Dispense of prescription drug orders; participate in drug and device selection;

(3) Provide drug administration;

(4) Provide drug regimen review;

(5) Provide drug or drug-related research;

(6) Perform patient counseling;

(7) Provide pharmacy related primary care;

(8) Provide pharmacist care in all areas of patient care, including collaborative pharmacy practice;

(9) Compound and label drugs and drug devices;

(10) Proper and safe storage of drugs and devices;

(11) Maintain proper records;

(12) Provide patient counseling concerning the therapeutic value and proper use of drugs and devices;

(13) Order laboratory tests in accordance with drug therapy management; and

(14) Provide medication therapy management.

(b) A licensee meeting the requirements as promulgated by legislative rule may administer immunizations.

(c) The sale of any medicine, if the contents of its container, or any part thereof, taken at one time, are likely to prove poisonous, deleterious, or habit-forming is prohibited by any person other than a registered pharmacist, who shall take precautions to acquaint the purchaser of the nature of the medicine at the time of sale.

§30-5-10a.

Repealed.

Acts, 2013 Reg. Sess., Ch. 148.

§30-5-11. Registration of pharmacy technicians.

(a) To be eligible for registration as a pharmacy technician to assist in the practice of pharmacist care, the applicant shall:

(1) Submit a written application to the board;

(2) Pay the applicable fees;

(3) Have graduated from high school or obtained a Certificate of General Educational Development (GED) or equivalent.

(4) Have:

(A) Graduated from a competency-based pharmacy technician education and training program as approved by legislative rule of the board;

(B) Completed a pharmacy-provided, competency-based education and training program approved by the board; or

(C) Obtained a national certification as a pharmacy technician and have practiced in another jurisdiction for a period of time as determined by the board.

(5) Have successfully passed an examination developed using nationally recognized and validated psychometric and pharmacy practice standards approved by the board;

(6) Not be an alcohol or drug abuser, as these terms are defined in §27-1A-11 of this code: Provided, That an applicant in an active recovery process, which may, in the discretion of the board, be evidenced by participation in a 12-step program or other similar group or process, may be considered;

(7) Not have been convicted of a felony in any jurisdiction within 10 years preceding the date of application for license, which conviction remains unreversed;

(8) Not have been convicted of a misdemeanor or felony in any jurisdiction if the offense for which he or she was convicted bearing a rational nexus to the practice of pharmacist care, which conviction remains unreversed; and

(9) Have fulfilled any other requirement specified by the board in rule.

(b) A person whose license to practice pharmacist care has been denied, revoked, suspended, or restricted for disciplinary purposes in any jurisdiction is not eligible to be registered as a pharmacy technician.

(c) To be eligible to obtain a nuclear pharmacy technician endorsement, the applicant shall:

(1) Submit a written application to the board;

(2) Pay the applicable fees;

(3) Have graduated from high school or obtained a Certificate of General Educational Development (GED) or equivalent;

(4) Have successfully completed a pharmacy provided, competency-based nuclear pharmacy technician education and training program approved by the board;

(5) Have all applicable national certifications and comply with all federal rules and regulations;

(6) Not be an alcohol or drug abuser, as these terms are defined in §27-1A-11 of this code: Provided, That an applicant in an active recovery process, which may, in the discretion of the board, be evidenced by participation in a 12-step program or other similar group or process, may be considered;

(7) Not have been convicted of a felony in any jurisdiction within 10 years preceding the date of application for license, which conviction remains unreversed;

(8) Not have been convicted of a misdemeanor or felony in any jurisdiction if the offense for which he or she was convicted bearing a rational nexus to the practice of pharmacist care, which conviction remains unreversed; and

(9) Has fulfilled any other requirement specified by the board in any rule.

(d) A person whose license to practice pharmacist care has been denied, revoked, suspended, or restricted for disciplinary purposes in any jurisdiction is not eligible to be registered as a nuclear pharmacy technician.

§30-5-11a. Pharmacy technician trainee qualifications.

(a) To be eligible for registration as a pharmacy technician trainee to assist in the practice of pharmacist care, the applicant shall:

(1) Submit a written application to the board;

(2) Pay the applicable fees;

(3) (A) Have graduated from a high school or obtained a Certificate of General Educational Development (GED), or

(B) Be currently enrolled in a high school competency based pharmacy technician education and training program;

(4) (A) Be currently enrolled in a competency-based pharmacy technician education and training program of a learning institution or training center approved by the board; or

(B) Be an employee of a pharmacy in an on-the-job competency-based pharmacy technician training program.

(5) Not be an alcohol or drug abuser as these terms are defined in section 11, article one-a, chapter twenty-seven of this code:  Provided, That an applicant in an active recovery process, which may, in the discretion of the board, be evidenced by participation in a twelve-step program or other similar group or process, may be considered;

(6) Not have been convicted of a felony in any jurisdiction within ten years preceding the date of application for registration, which conviction remains unreversed;

(7) Not have been convicted of a misdemeanor or felony in any jurisdiction which bears a rational nexus to the practice of pharmacist care, which conviction remains unreversed; and

(8) Have requested and submitted to the board the results of a fingerprint-based state and a national electronic criminal history records check.

(b) The rules, authorized duties and unauthorized prohibitions as set out in section twelve of this article for pharmacy technicians apply to pharmacy technician trainees.

(c) The board shall promulgate an emergency rule and legislative rule pursuant article two, chapter twenty-nine-a, to authorize the requirements of this section to permit pharmacy technician trainees.

§30-5-12. Scope practice for registered pharmacy technician.

(a) A registered pharmacy technician shall, under the direct supervision of the licensed pharmacist, perform at a minimum the following:

(1) Assist in the dispensing process;

(2) Receive new written or electronic prescription drug orders;

(3) Compound;

(4) Stock medications;

(5) Complete a list of a patient’s current prescription and nonprescription medications to provide for medication reconciliation;

(6) Supervise registered pharmacy technicians and pharmacy technician trainees;

(7) Medical records screening;

(8) Administer immunizations, as provided by legislative rule; and

(9) Perform pharmacy technician product verification, where no clinical judgment is necessary and the pharmacist makes the final verification; if the registered pharmacy technician furnishes to the Board an affidavit signed and dated by the supervising pharmacist-in-charge of the facility which will employee the applicant attesting to the applicant’s competency in the advanced areas of practice that he or she will practice; and has either:

(A) Worked as a full-time registered pharmacy technician holding a pharmacy technician endorsement in West Virginia for at least the previous two years; or

(B) Worked as a full-time registered pharmacy technician holding a pharmacy technician license in good standing in another jurisdiction for at least the previous two years.

(b) A registered pharmacy technician may perform the following under indirect supervision of a licensed pharmacist:

(1) Process medical coverage claims; and

(2) Cashier.

(c) A registered pharmacy technician may not perform the following:

(1) Drug regimen review;

(2) Clinical conflict resolution;

(3) Contact a prescriber concerning prescription drug order clarification or therapy modification;

(4) Patient counseling;

(5) Dispense process validation;

(6) Prescription transfer;

(7) Receive new oral prescription drug orders;

(8) An act within the practice of pharmacist care that involves discretion or independent professional judgment; or

(9) A function which the registrant has not been trained and the function has not been specified in a written protocol with competency established.

(d) Indirect supervision of a registered pharmacy technician is permitted to allow a pharmacist to take one break of no more than 30 minutes during any contiguous eight-hour period. The pharmacist may leave the pharmacy area but may not leave the building during the break. When a pharmacist is on break, a pharmacy technician may continue to prepare prescriptions for the pharmacist(s verification. A prescription may not be delivered until the pharmacist has verified the accuracy of the prescription, and counseling, if required, has been provided to or refused by the patient.

(e) A pharmacy that permits indirect supervision of a pharmacy technician during a pharmacist(s break shall have either an interactive voice response system or a voice mail system installed on the pharmacy phone line in order to receive new prescription orders and refill authorizations during the break.

(f) The pharmacy shall establish protocols that require a registered pharmacy technician to interrupt the pharmacist’s break if an emergency arises.

(g) A registered pharmacy technician who has obtained a nuclear pharmacy technician endorsement, may under the direct supervision of the licensed nuclear pharmacist, perform the following:

(1) Assist in the dispensing process;

(2) Receive new written or electronic prescription drug orders;

(3) Mix compound ingredients for liquid products, suspensions, ointments, mixes, or blend for tablet granulations and capsule powders;

(4) Prepare radiopharmaceuticals;

(5) Record keeping;

(6) File and organize prescriptions;

(7) Create reports;

(8) Inventory tasks;

(9) Handle raw materials and intermediate or finished products;

(10) Perform general maintenance as required on pumps, homogenizers, filter presses, tablet compression machines, and other like machines;

(11) Perform standard operating procedures to meet current good manufacturing practices (GMP);

(12) Maintain records;

(13) Monitor and verify quality in accordance with statistical process or other control procedures; and

(14) Stock medications.

(h) A registered pharmacy technician who has obtained a nuclear pharmacy technician endorsement may not perform the following:

(1) Drug regimen review;

(2) Clinical conflict resolution;

(3) Contact a prescriber concerning prescription drug order clarification or therapy modification;

(4) Receive new oral prescription drug orders.

§30-5-12a.

Repealed.

Acts, 1995 Reg. Sess., Ch. 193.

§30-5-12b. Definitions; selection of generic drug products; exceptions; records; labels; manufacturing standards; rules; notice of substitution; complaints; notice and hearing; immunity.

(a) As used in this section:

(1) "Brand name" means the proprietary or trade name selected by the manufacturer and placed upon a drug or drug product, its container, label, or wrapping at the time of packaging.

(2) "Covered entity" means:

(A) Any hospital or medical service organization, insurer, health coverage plan, or health maintenance organization licensed in the state that contracts with another entity to provide prescription drug benefits for its customers or clients;

(B) Any health program administered by the state in its capacity as provider of health coverage; or

(C) Any employer, labor union, or other group of persons organized in the state that contracts with another entity to provide prescription drug benefits for its employees or members.

(3) "Covered individual" means a member, participant, enrollee, contract holder, policy holder, or beneficiary of a covered entity who is provided a prescription drug benefit by a covered entity. The term "covered individual" includes a dependent or other person provided a prescription drug benefit through a policy, contract, or plan for a covered individual.

 (4) "Generic name" means the official title of a drug or drug combination for which a new drug application, or an abbreviated new drug application, has been approved by the United States Food and Drug Administration and is in effect.

 (5) "Substitute" means to dispense a therapeutically equivalent generic drug product in the place of the drug ordered or prescribed.

 (6) "Equivalent" means drugs or drug products which are the same amounts of identical active ingredients and same dosage form and which will provide the same therapeutic efficacy and toxicity when administered to an individual and is approved by the United States Food and Drug Administration.

(b) A pharmacist who receives a prescription for a brand name drug or drug product shall substitute a less expensive equivalent generic name drug or drug product unless, in the exercise of his or her professional judgment, the pharmacist believes that the less expensive drug is not suitable for the particular patient: Provided, That a substitution may not be made by the pharmacist where the prescribing practitioner indicates that, in his or her professional judgment, a specific brand name drug is medically necessary for a particular patient.

(c) A written prescription order shall permit the pharmacist to substitute an equivalent generic name drug or drug product except where the prescribing practitioner has indicated in his or her own handwriting the words "Brand Medically Necessary". The following sentence shall be printed on the prescription form: "This prescription may be filled with a generically equivalent drug product unless the words "Brand Medically Necessary" are written, in the practitioner’s own handwriting, on this prescription form": Provided, That "Brand Medically Necessary" may be indicated on the prescription order other than in the prescribing practitioner’s own handwriting unless otherwise required by federal mandate.

(d) A verbal prescription order shall permit the pharmacist to substitute an equivalent generic name drug or drug product except where the prescribing practitioner indicates to the pharmacist that the prescription is "Brand Necessary" or "Brand Medically Necessary". The pharmacist shall note the instructions on the file copy of the prescription or chart order form.

(e) A person may not by trade rule, work rule, contract or in any other way prohibit, restrict, limit, or attempt to prohibit, restrict, or limit the making of a generic name substitution under the provisions of this section. An employer or his or her agent may not use coercion or other means to interfere with the professional judgment of the pharmacist in deciding which generic name drugs or drug products shall be stocked or substituted: Provided, That this section may not be construed to permit the pharmacist to generally refuse to substitute less expensive therapeutically equivalent generic drugs for brand name drugs and that any pharmacist so refusing is subject to the penalties prescribed §30-5-34 of this code.

(f) A pharmacist may substitute a drug pursuant to the provisions of this section only where there will be a savings to the purchaser. Where substitution is proper, pursuant to this section, or where the practitioner prescribes the drug by generic name, the pharmacist shall, consistent with his or her professional judgment, dispense the lowest retail cost-effective brand which is in stock.

 (g) If a pharmacist substitutes a drug pursuant to the provisions of this section, the patient shall receive the savings which shall be equal to the difference in the patient’s acquisition cost of the product prescribed and the acquisition cost of the substituted product: Provided, That this subsection may not apply if the patient is a covered individual.

(h) Each pharmacy shall maintain a record of any substitution of an equivalent generic name drug product for a prescribed brand name drug product on the file copy of a written, electronic or verbal prescription or chart order. The record shall include the manufacturer and generic name of the drug product selected.

(i) All drugs shall be labeled in accordance with the instructions of the practitioner.

(j) Unless the practitioner directs otherwise, the prescription label on all drugs dispensed by the pharmacist shall indicate the generic name using abbreviations, if necessary, and either the name of the manufacturer or packager, whichever is applicable in the pharmacist’s discretion. The same notation will be made on the original prescription retained by the pharmacist.

(k) A pharmacist may not dispense a product under the provisions of this section unless the manufacturer has shown that the drug has been manufactured with the following minimum good manufacturing standards and practices by:

(1) Labeling products with the name of the original manufacturer and control number;

(2) Maintaining quality control standards equal to or greater than those of the United States Food and Drug Administration;

(3) Marking products with an identification code or monogram; and

(4) Labeling products with an expiration date.

(l) The West Virginia Board of Pharmacy shall promulgate rules in accordance with the provisions of §29A-3-1 et seq. of this code which establish a formulary of generic type and brand name drug products which are determined by the board to demonstrate significant biological or therapeutic inequivalence and which, if substituted, would pose a threat to the health and safety of patients receiving prescription medication. The formulary shall be promulgated by the board within 90 days of the date of passage of this section and may be amended in accordance with the provisions of that chapter.

(m) A pharmacist may not substitute a generic-named therapeutically equivalent drug product for a prescribed brand name drug product if the brand name drug product or the generic drug type is listed on the formulary established by the West Virginia Board of Pharmacy pursuant to this article or is found to be in violation of the requirements of the United States Food and Drug Administration.

(n) Any pharmacist who substitutes any drug shall, either personally or through his or her agent, assistant, or employee, notify the person presenting the prescription of the substitution. The person presenting the prescription may refuse the substitution. Upon request the pharmacist shall relate the retail price difference between the brand name and the drug substituted for it.

(o) Every pharmacy shall post in a prominent place that is in clear and unobstructed public view, at or near the place where prescriptions are dispensed, a sign which shall read: "West Virginia law requires pharmacists to substitute a less expensive generic-named therapeutically equivalent drug for a brand name drug, if available, unless you or your physician direct otherwise". The sign shall be printed with lettering of at least one and one-half inches in height with appropriate margins and spacing as prescribed by the West Virginia Board of Pharmacy.

(p) The West Virginia Board of Pharmacy shall promulgate rules in accordance with §29A-3-1 et seq. of this code setting standards for substituted drug products and obtaining compliance with the provisions of this section. The board has the primary responsibility for enforcing the provisions of this section.

(q) Any person may file a complaint with the West Virginia Board of Pharmacy regarding any violation of the provisions of this article. The complaints shall be investigated by the Board of Pharmacy.

(r) Fifteen days after the board has notified, by registered mail, a person, firm, corporation, or copartnership that the person, firm, corporation, or copartnership is suspected of being in violation of a provision of this section, the board shall hold a hearing on the matter. If, as a result of the hearing, the board determines that a person, firm, corporation, or copartnership is violating any of the provisions of this section, it may, in addition to any penalties prescribed by §30-5-22 of this code, suspend or revoke the permit of any person, firm, corporation, or copartnership to operate a pharmacy.

(s) A pharmacist or pharmacy complying with the provisions of this section may not be liable in any way for the dispensing of a generic-named therapeutically equivalent drug, substituted under the provisions of this section, unless the generic-named therapeutically equivalent drug was incorrectly substituted.

(t) In no event where the pharmacist substitutes a drug under the provisions of this section may the prescribing physician be liable in any action for loss, damage, injury, or death of any person occasioned by or arising from the use of the substitute drug unless the original drug was incorrectly prescribed.

(u) Failure of a practitioner to specify that a specific brand name is necessary for a particular patient may not constitute evidence of negligence unless the practitioner had reasonable cause to believe that the health of the patient required the use of a certain product and no other.

§30-5-12c. Substitution of biological product: Definitions; selection of interchangeable biological products; exceptions; records; labels; manufacturing standards; emergency rules; complaints; and immunity.

(a) As used in this section:

“Biological product” means the same as that term is defined in 42 U.S.C.§ 262.

“Brand name” means the proprietary or trade name selected by the manufacturer and placed upon a drug or drug product, its container, label, or wrapping at the time of packaging.

“Interchangeable biological product” means a biological product that the federal Food and Drug Administration has:

(1) Licensed and determined meets the standards for interchangeability pursuant to 42 U.S.C § 262(k)(4); or

(2) Determined is therapeutically equivalent as set forth in the latest edition of or supplement to the federal Food and Drug Administration’s Approved Drug Products with Therapeutic Equivalence Evaluations.

“Proper name” means the nonproprietary name of a biological product.

“Substitute” means to dispense without the prescriber’s express authorization an interchangeable biological product in the place of the drug ordered or prescribed.

(b) Except as limited by subsection (c) and unless instructed otherwise by the patient, a pharmacist who receives a prescription for a specific biological product shall select a less expensive interchangeable biological product unless in the exercise of his or her professional judgment the pharmacist believes that the less expensive drug is not suitable for the particular patient. The pharmacist shall provide notice to the patient or the patient’s designee regarding the selection of a less expensive interchangeable biological product.

(c) If, in the professional opinion of the prescriber, it is medically necessary that an equivalent drug product or interchangeable biological product not be selected, the prescriber may so indicate by certifying that the specific brand-name drug product prescribed, or the specific brand-name biological product prescribed, is medically necessary for that particular patient. In the case of a prescription transmitted orally, the prescriber must expressly indicate to the pharmacist that the specific brand-name drug product prescribed, or the specific biological product prescribed is medically necessary.

(d) (1) Within five business days following the dispensing of a biological product, the dispensing pharmacist or the pharmacist’s designee shall communicate the specific product provided to the patient, including the name of the product and the manufacturer, to the prescriber through any of the following electronic records systems:

(A) An interoperable electronic medical records system;

(B) An electronic prescribing technology;

(C) A pharmacy benefit management system; or

(D) A pharmacy record.

(2) Communication through an electronic records system as described in §30-5-12c(d)(1) of this code is presumed to provide notice to the prescriber.

(3) If the pharmacist is unable to communicate pursuant to an electronic records system the pharmacist shall communicate to the prescriber which biological product was dispensed to the patient using facsimile, telephone, electronic transmission, or other prevailing means.

(4) Communication is not required under this subsection when:

(A) There is no Federal Food and Drug Administration approved interchangeable biological product for the product prescribed; or

(B) A refill prescription is not changed from the product dispensed on the prior filling of the

prescription.

(e) The pharmacist shall maintain a record of the biological product dispensed for at least two years. Such record shall include the manufacturer and proper name of the interchangeable biological product selected.

(f) All biological products shall be labeled in accordance with the instructions of the practitioner.

(g) Unless the practitioner directs otherwise, the prescription label on all biological products dispensed by the pharmacist shall indicate the proper name using abbreviations, if necessary, and either the name of the manufacturer or packager, whichever is applicable, in the pharmacist’s discretion. The same notation will be made on the original prescription retained by the pharmacist.

(h) A pharmacist may not dispense a product under the provisions of this section unless the manufacturer has shown that the biological product has been manufactured with the following minimum good manufacturing standards and practices by:

(1) Labeling products with the name of the original manufacturer and control number;

(2) Maintaining quality control standards equal to or greater than those of the United States Food and Drug Administration;

(3) Marking products with identification code or monogram; and

(4) Labeling products with an expiration date.

(i) The West Virginia Board of Pharmacy shall promulgate emergency rules pursuant to the provisions of §29A-3-15 of this code setting standards for substituted interchangeable biological products, obtaining compliance with the provisions of this section, and enforcing the provisions of this section.

(j) Any person shall have the right to file a complaint with the West Virginia Board of Pharmacy regarding any violation of the provisions of this article. Such complaints shall be investigated by the Board of Pharmacy.

(k) No pharmacist or pharmacy complying with the provisions of this section shall be liable in any way for the dispensing of an interchangeable biological product substituted under the provisions of this section, unless the interchangeable biological product was incorrectly substituted.

(l) In no event where the pharmacist substitutes an interchangeable biological product under the provisions of this section shall the prescribing physician be liable in any action for loss, damage, injury, or death of any person occasioned by or arising from, the use of the substitute biological product unless the original biological product was incorrectly prescribed.

(m) Failure of a practitioner to specify that a specific brand name is necessary for a particular patient shall not constitute evidence of negligence unless the practitioner had reasonable cause to believe that the health of the patient required the use of a certain product and no other.

§30-5-13. Pharmacist interns.

(a) To be eligible for a license to assist in the practice of pharmacist care as a pharmacy intern, the applicant shall be:

(1) Enrolled and progressing to obtain a degree in a professional degree program of a school or college of pharmacy that has been approved by the board, and is satisfactorily progressing toward meeting the requirements for licensure as a pharmacist; or

(2) A graduate of an approved professional degree program of a school or college of pharmacy or a graduate who has established educational equivalency by obtaining a Foreign Pharmacy Graduate Examination Committee Certificate, who is currently licensed by the board for the purpose of obtaining practical experience as a requirement for licensure as a pharmacist; or

(3) A qualified applicant awaiting examination for licensure or meeting board requirements for relicensure; or

(4) An individual participating in a pharmacy residency or fellowship program.

§30-5-14. Prohibiting the dispensing of prescription orders in absence of practitioner-patient relationship.

A pharmacist may not compound or dispense any prescription order when he or she has knowledge that the prescription was issued by a practitioner without establishing a valid practitioner-patient relationship. An online or telephonic evaluation by questionnaire, or an online or telephonic consultation, is inadequate to establish a valid practitioner-patient relationship: Provided, That this prohibition does not apply:

(1) In a documented emergency;

(2) In an on-call or cross-coverage situation;

(3) For the treatment of sexually transmitted diseases by expedited partner therapy as set forth in article four-f, chapter sixteen of this code; or

 (4) Where patient care is rendered in consultation with another practitioner who has an ongoing relationship with the patient and who has agreed to supervise the patient's treatment, including the use of any prescribed medications.

§30-5-14a.

Repealed.

Acts, 2013 Reg. Sess., Ch. 148.

§30-5-14b.

Repealed.

Acts, 2013 Reg. Sess., Ch. 148.

§30-5-15. Reciprocal licensure of pharmacists from other states or countries.

(a) The board may by reciprocity license pharmacists in this state who have been authorized to practice pharmacist care in another state: Provided, That the applicant for licensure meets the requirements of the rules for reciprocity promulgated by the board in accordance with the provisions of chapter twenty-nine-a of this code: Provided, however, That reciprocity is not authorized for pharmacists from another state where that state does not permit reciprocity to pharmacists licensed in West Virginia.

(b) The board may refuse reciprocity to pharmacists from another country unless the applicant qualifies under the legislative rules as may be promulgated by the board for licensure of foreign applicants.

§30-5-16. Renewal requirements.

(a) All persons regulated by this article shall annually or biannually, renew his or her board authorization by completing a form prescribed by the board and submitting any other information required by the board.

(b) The board shall charge a fee for each renewal of an board authorization and shall charge a late fee for any renewal not paid by the due date.

(c) The board shall require as a condition of renewal that each licensee or registrant complete continuing education.

(d) The board may deny an application for renewal for any reason which would justify the denial of an original application.

(e) After June 30, 2014, a previously registered pharmacy technician may renew his or her current registration without having successfully completed the requirements of subdivision six, subsection (a), of section eleven. The previously registered pharmacist may continue to renew his or her registration under this provision.

§30-5-16a.

Repealed.

Acts, 2013 Reg. Sess., Ch. 148.

§30-5-16b.

Repealed.

Acts, 2013 Reg. Sess., Ch. 148.

§30-5-16c.

Repealed.

Acts, 2013 Reg. Sess., Ch. 148.

§30-5-17. Special volunteer pharmacist license; civil immunity for voluntary services rendered to indigents.

(a) There is a special volunteer pharmacist license for pharmacists retired or retiring from the active practice of pharmacist care who wish to donate their expertise for the pharmacist care and treatment of indigent and needy patients in the clinical setting of clinics organized, in whole or in part, for the delivery of health care services without charge. The special volunteer pharmacist license shall be issued by the board to pharmacists licensed or otherwise eligible for licensure under this article and the legislative rules promulgated hereunder without the payment of an application fee, license fee or renewal fee, and the initial license shall be issued for the remainder of the licensing period, and renewed consistent with the boards other licensing requirements. The board shall develop application forms for the special license provided in this subsection which shall contain the pharmacist’s acknowledgment that:

(1) The pharmacist’s practice under the special volunteer pharmacist license shall be exclusively devoted to providing pharmacist care to needy and indigent persons in West Virginia;

(2) The pharmacist may not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation, but may donate to the clinic the proceeds of any reimbursement for any pharmacist care rendered under the special volunteer pharmacist license;

(3) The pharmacist will supply any supporting documentation that the board may reasonably require; and

(4) The pharmacist agrees to continue to participate in continuing professional education as required by the board for the special volunteer pharmacist license.

(b) Any person engaged in the active practice of pharmacist care in this state whose license is in good standing may donate their expertise for the care and treatment of indigent and needy patients pursuant to an arrangement with a clinic organized, in whole or in part, for the delivery of health care services without charge to the patient. Services rendered pursuant to an arrangement may be performed in either the pharmacist’s office or the clinical setting.

(c) Any pharmacist who renders any pharmacist care 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 pharmacist license authorized under subsection (a) of this section or pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) 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 pharmacist care at the clinic unless the act or omission was the result of the pharmacist’s gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there shall be a written agreement between the pharmacist and the clinic pursuant to which the pharmacist provides voluntary uncompensated pharmacist care under the control of the clinic to patients of the clinic before the rendering of any services by the pharmacist 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.

(d) 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 a pharmacist rendering voluntary pharmacist care at or for the clinic under a special volunteer pharmacist license authorized under subsection (a) of this section or who renders such care and treatment pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) of this section.

(e) For purposes of this section, "otherwise eligible for licensure" means the satisfaction of all the requirements for licensure as listed in section nine of this article and in the legislative rules promulgated thereunder, except the fee requirements of that section and of the legislative rules promulgated by the board relating to fees.

(f) Nothing in this section may be construed as requiring the board to issue a special volunteer pharmacist license to any pharmacist whose license is or has been subject to any disciplinary action or to any pharmacist who has surrendered a license or caused such license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her license, or who has elected to place a pharmacist license in inactive status in lieu of having a complaint initiated or other action taken against his or her license, or who has been denied a pharmacist license.

(g) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any pharmacist 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 a pharmacist who holds a special volunteer pharmacist license or who renders such care and treatment pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) of this section.

§30-5-18. Pharmacist requirements to participate in a collabora-tive pharmacy practice agreement.

For a pharmacist to participate in a collaborative pharmacy practice agreement, the pharmacist shall:

(a) Have an unrestricted and current license to practice as a pharmacist in West Virginia;

(b) Personally have or have employer coverage of at least $1 million of professional liability insurance coverage;

(c) Meet one of the following qualifications, at a minimum:

(1) Earned a Certification from the Board of Pharmaceutical Specialties, is a Certified Geriatric Practitioner, or has completed an American Society of Health System Pharmacists(ASHP) accredited residency program, which includes two years of clinical experience approved by the board; or

(2) Successfully completed the course of study and holds the academic degree of Doctor of Pharmacy and has three years of clinical experience approved by the board and has completed an Accreditation Council for Pharmacy Education (ACPE) approved practice based continuing pharmacy education activity in the area of practice covered by the collaborative pharmacy practice agreement; or

(3) Successfully completed the course of study and hold the academic degree of Bachelor of Science in Pharmacy and has five years of clinical experience approved by the board and has completed two ACPE approved practice based continuing pharmacy education activity with at least one program in the area of practice covered by a collaborative pharmacy practice agreement.

§30-5-19. Collaborative pharmacy practice agreement and practice notification.

(a) A pharmacist engaging in collaborative pharmacy practice shall have on file at his or her place of practice the collaborative pharmacy practice agreement. The existence and subsequent termination of the agreement and any additional information the rules may require concerning the agreement, including the agreement itself, shall be made available to the appropriate licensing board for review upon request. The agreement may allow the pharmacist, within the pharmacist’s scope of practice pursuant to the collaborative pharmacy practice agreement, to conduct drug therapy management activities approved by the collaborating physician. The collaborative pharmacy practice agreement shall be a voluntary process, which is a physician directed approach after informed consent of the patient and noted in the patient’s medical record, that is entered into between an individual physician or physician group and an individual pharmacist or pharmacists. A pharmacist may not diagnose.

(b) A collaborative pharmacy practice agreement may authorize a pharmacist to provide drug therapy management. In instances where drug therapy is discontinued, the pharmacist shall notify the treating physician of the discontinuance in the time frame and in the manner established by joint legislative rules. Each protocol developed, pursuant to the collaborative pharmacy practice agreement, shall contain detailed direction concerning the services that the pharmacists may perform for that patient. The protocol shall include, but need not be limited to:

(1) The specific drug or drugs to be managed by the pharmacist;

(2) The terms and conditions under which drug therapy may be implemented, modified, or discontinued;

(3) The conditions and events upon which the pharmacist is required to notify the physician;

(4) The laboratory tests that may be ordered in accordance with drug therapy management; and

(5) The mutually agreed upon patient evaluations the pharmacist may conduct.

(c) All activities performed by the pharmacist in conjunction with the protocol shall be documented in the patient’s medical record. The pharmacists shall report at least every 30 days to the physician regarding the patient’s drug therapy management. The collaborative pharmacy practice agreement and protocols shall be available for inspection by the board, the West Virginia Board of Medicine, or the West Virginia Board of Osteopathic Medicine, depending on the licensing board of the participating physician. A copy of the protocol shall be filed in the patient’s medical record.

(d) Collaborative pharmacy agreements may not include the management of controlled substances.

(e) A collaborative pharmacy practice agreement, meeting the requirements herein established and in accordance with joint rules, shall be allowed in the hospital setting, the nursing home setting, the medical school setting and the hospital, community pharmacy setting and ambulatory care clinics. The pharmacist shall be employed by or under contract to provide services to the hospital, community pharmacy, nursing home, ambulatory care clinic, or medical school, or hold a faculty appointment with one of the schools of pharmacy or medicine in this state.

(f) Notwithstanding any other provision to the contrary, a pharmacist or group of pharmacists may practice in collaboration with physicians in any practice setting, including but not limited to a health care system, pursuant to a practice notification which has been filed with the appropriate board: Provided, That a pharmacist who is currently in collaboration with physicians pursuant to a practice agreement which was approved prior to June 1, 2023, may continue to practice under that agreement until the practice agreement terminates or until June 1, 2024.

(g) The practice notification shall be filed with the appropriate licensing board and becomes effective immediately upon filing. The board retains jurisdiction to investigate any complaints filed regarding a practice notification with respect to their respective license holders.

(h) Nothing pertaining to collaborative pharmacy practice shall be interpreted to permit a pharmacist to accept delegation of a physician’s authority outside the limits included in the appropriate board’s statute and rules.

§30-5-20. Board authorizations shall be displayed.

(a) The board shall prescribe the form for an board authorization, and may issue a duplicate upon payment of a fee.

(b) Any person regulated by the article shall conspicuously display his or her board authorization at his or her principal business location.

§30-5-21. Responsibility for quality of drugs dispensed; exception; falsification of labels; deviation from prescription.

(a) All persons, whether licensed pharmacists or not, shall be responsible for the quality of all drugs, chemicals and medicines they may sell or dispense, with the exception of those sold in or dispensed unchanged from the original retail package of the manufacturer, in which event the manufacturer shall be responsible.

(b) Except as provided in section twelve-b of this article, the following acts shall be prohibited:

(1) The falsification of any label upon the immediate container, box and/or package containing a drug;

(2) The substitution or the dispensing of a different drug in lieu of any drug prescribed in a prescription without the approval of the practitioner authorizing the original prescription: Provided, That this may not be construed to interfere with the art of prescription compounding which does not alter the therapeutic properties of the prescription or appropriate generic substitute;

(3) The filling or refilling of any prescription for a greater quantity of any drug or drug product than that prescribed in the original prescription without a written or electronic order or an oral order reduced to writing, or the refilling of a prescription without the verbal, written or electronic consent of the practitioner authorizing the original prescription.

§30-5-22. Pharmacies to be registered.

(a) A pharmacy, an ambulatory health care facility, and a charitable clinic pharmacy shall register with the board.

(b) A person desiring to operate, maintain, open or establish a pharmacy shall register with the board.

(c) To be eligible for a registration to operate, maintain, open or establish a pharmacy the applicant shall:

(1) Submit a written application to the board;

(2) Pay all applicable fees;

(3) Designate a pharmacist-in-charge; and

(4) Successfully complete an inspection by the board.

(d) A separate application shall be made and separate registration issued for each location.

(e) Registration is not transferable.

(f) Registration expire and shall be renewed annually.

(g) If a registration expires, the pharmacy shall be reinspected and an inspection fee is required.

(h) A registrant shall employ a pharmacist-in-charge and operate in compliance with the legislative rules governing the practice of pharmacist care and the operation of a pharmacy.

(i) The provisions of this section do not apply to the sale of nonprescription drugs which are not required to be dispensed pursuant to a practitioner’s prescription.

(j) The provisions of this section do not apply to the sale or distribution of dialysate, drugs or devices necessary to perform home peritoneal renal dialysis to patients with end state renal disease, provided the requirements of §30-5-29 of this code are met.

§30-5-22a.

Repealed.

Acts, 2013 Reg. Sess., Ch. 148.

§30-5-23. Pharmacist-in-charge.

(a) A pharmacy shall be under the direction and supervision of a licensed pharmacist who shall be designated by the owner of the pharmacy as the pharmacist-in-charge: Provided, That the Board may permit by rule for a charitable clinic pharmacy to be supervised by a committee of pharmacists-in-charge who accept as a group the responsibilities of the required pharmacist-in-charge. This designation shall be filed with the board within thirty days of the designation.

(b) The pharmacist-in-charge is responsible for the pharmacy's compliance with state and federal pharmacy laws and regulations and for maintaining records and inventory.

(c) A pharmacist-in-charge may not hold such designated position at more than one pharmacy, whether within or outside the State of West Virginia: Provided, That the Board may permit by rule that he or she may volunteer as the pharmacist-in-charge at a charitable clinic pharmacy while serving as a pharmacist-in-charge in another pharmacy.

(d) An interim pharmacist-in-charge may be designated for a period not to exceed sixty days. The request for an interim pharmacist-in-charge shall detail the circumstances which warrant the change. This change in designation shall be filed with the board within thirty days of the designation.

§30-5-24. Permits for mail-order pharmacy.

(a) A mail-order pharmacy which dispenses drugs shall register with the board.

(b) A mail-order pharmacy shall submit an application for a permit to the board. The application shall require the following information:

(1) The owner of the mail-order pharmacy, whether an individual, a partnership, or a corporation.

(2) The names and titles of all individual owners, partners or corporate officers.

(3) The pharmacy manager.

(4) The pharmacist-in-charge.

(5) The complete address, telephone number and fax number of the mail-order pharmacy.

(c) This section does not apply to any mail-order pharmacy which operates solely as a wholesale distributor.

§30-5-25. Permit for manufacture and packaging of drugs, medicines, distribution of prescription drugs.

(a) Drugs may not be manufactured, made, produced, packed, packaged or prepared within the state, except under the personal supervision of a pharmacist or other qualified person as may be approved by the board;

(b) A person may not manufacture, package or prepare a drug without obtaining a permit from the board.

(c) A person, who offers for sale, sells, offers for sale through the method of distribution any prescription drugs is subject to this article.

(d) The application for a permit shall be made on a form to be prescribed and furnished by the board and shall be accompanied by an application fee.

(e) The board shall promulgate rules on permit requirements and sanitation requirements.

(f) Separate applications shall be made and separate permits issued for each place of manufacture, distribution, making, producing, packing, packaging or preparation.

§30-5-26. Filling of prescriptions more than one year after issuance.

A prescription order may not be dispensed after twelve months from the date of issuance by the practitioner. A pharmacist may fill the prescription after twelve months if the prescriber confirms to the pharmacist that he or she still wants the prescription filled and the pharmacist documents upon the prescription that the confirmation was obtained.

§30-5-27. Partial filling of prescriptions.

(a) The partial filling of a prescription is permissible for any prescription if the pharmacist is unable to supply, or the patient requests less than the full quantity called for in a written, electronic, or oral prescription, provided the pharmacist makes a notation of the quantity supplied on either the written prescription or in the electronic record.

(b) The partial filling of a prescription for a controlled substance listed in Schedule II is permissible if the pharmacist is unable to supply or the patient requests less than the full quantity called for in the prescription. The remaining portion of the prescription may be filled within seventy-two hours of the first partial filling: Provided, That if the remaining portion is not or cannot be filled within the seventy-two hour period, the pharmacist shall notify the prescribing individual practitioner. Further quantity may not be supplied beyond seventy-two hours without a new prescription.

§30-5-28. Partial filling of prescriptions for long-term care facility or terminally ill patients; requirements; records; violations.

(a) As used in this section, "long-term care facility" or "LTCF" means any nursing home, personal care home, or residential board and care home as defined in section two, article five-c, chapter sixteen of this code which provides extended health care to resident patients: Provided, That the care or treatment in a household, whether for compensation or not, of any person related by blood or marriage, within the degree of consanguinity of second cousin to the head of the household, or his or her spouse, may not be deemed to constitute a nursing home, personal care home or residential board and care home within the meaning of this article. This section does not apply to:

(1) Hospitals, as defined under section one, article five-b, chapter sixteen of this code or to extended care facilities operated in conjunction with a hospital;

(2) State institutions as defined in section six, article one, chapter twenty-seven or in section three, article one, chapter twenty-five, all of this code;

(3) Nursing homes operated by the federal government;

(4) Facilities owned or operated by the state government;

(5) Institutions operated for the treatment and care of alcoholic patients;

(6) Offices of physicians; or

(7) Hotels, boarding homes or other similar places that furnish to their guests only a room and board.

(b) As used in this section, "terminally ill" means that an individual has a medical prognosis that his or her life expectancy is six months or less.

(c) Schedule II prescriptions for patients in a LTCF and for terminally ill patients shall be valid for a period of sixty days from the date of issue unless terminated within a shorter period by the discontinuance of the medication.

(d) A prescription for a Schedule II controlled substance written for a patient in a LTCF or for a terminally ill patient may be filled in partial quantities, including, but not limited to, individual dosage units. The total quantity of Schedule II controlled substances dispensed in all partial filling may not exceed the total quantity prescribed.

(1) If there is any question whether a patient may be classified as having a terminal illness, the pharmacist shall contact the prescribing practitioner prior to partially filling the prescription.

(2) Both the pharmacist and the prescribing practitioner have a corresponding responsibility to assure that the controlled substance is for a terminally ill patient.

(e) The pharmacist shall record on the prescription that the patient is "terminally ill" or a "LTCF patient". A prescription that is partially filled and does not contain the notation "terminally ill" or "LTCF patient" shall be deemed to have been filled in violation of section three hundred eight, article three, chapter sixty-a of this code.

(f) For each partial filling, the dispensing pharmacist shall record on the back of the prescription, or on another appropriate record which is readily retrievable, the following information:

(1) The date of the partial filling;

(2) The quantity dispensed;

(3) The remaining quantity authorized to be dispensed; and

(4) The identification of the dispensing pharmacist.

(g) Information pertaining to current Schedule II prescriptions for terminally ill and LTCF patients may be maintained in a computerized system if such a system has the capability to permit either by display or printout, for each patient and each medication, all of the information required by this section as well as the patient's name and address, the name of each medication, original prescription number, date of issue, and prescribing practitioner information. The system shall also allow immediate updating of the prescription record each time a partial filling of the prescription is performed and immediate retrieval of all information required under this section.

§30-5-29. Limitations of article.

(a) This article may not be construed to prevent, restrict or in any manner interfere with the sale of nonnarcotic nonprescription drugs which may be lawfully sold without a prescription in accordance with the United States Food, Drug and Cosmetic Act or the laws of this state, nor may any legislative rule be adopted by the board which shall require the sale of nonprescription drugs by a licensed pharmacist or in a pharmacy or which shall prevent, restrict or otherwise interfere with the sale or distribution of such drugs by any retail merchant. The sale or distribution of nonprescription drugs may not be deemed to be improperly engaging in the practice of pharmacist care.

(b) This article may not be construed to interfere with any legally qualified practitioner of medicine, dentistry or veterinary medicine, who is not the proprietor of the store for the dispensing or retailing of drugs and who is not in the employ of such proprietor, in the compounding of his or her own prescriptions or to prevent him or her from supplying to his or her patients such medicines as he or she may deem proper, if such supply is not made as a sale.

(c) The exception provided in subsection (b) of this section does not apply to an ambulatory health care facility: Provided, That a legally licensed and qualified practitioner of medicine or dentistry may supply medicines to patients that he or she treats in a free clinic and that he or she deems appropriate.

(d) This article may not be construed to prevent, restrict or in any manner interfere with the sale or distribution of dialysate, drugs or devices necessary to perform home peritoneal renal dialysis to patients with end state renal disease, nor may any legislative rule be adopted by the board which shall require the sale or distribution of such peritoneal dialysis products by a licensed pharmacist or in a pharmacy, provided the following criteria are met:

(1) The dialysate, drugs or devices are approved or cleared by the Food and Drug Administration, as required by federal law.

(2) The dialysate, drugs or devices are lawfully held by a manufacturer or a manufacturer’s agent that has obtained the proper permit from the board as a manufacturer or wholesale distributor, or third-party logistics provider.

(3) The dialysate, drugs or devices are held and delivered in their original, sealed packaging from the manufacturing facility.

(4) The dialysate, drugs or devices are delivered only upon receipt of a physician’s prescription by a licensed pharmacy, and the transmittal of an order from the licensed pharmacy to the manufacturer or the manufacturer’s agent; and

(5) The manufacturer or a manufacturer’s agent delivers the dialysate, drugs, or devices directly to:

(A) A patient with chronic kidney failure, or his/her designee, for the patient’s self-administration of the dialysis therapy; or

(B) A health care provider or institution for administration or delivery of the dialysis therapy to a patient with chronic kidney failure.

(e) The provisions of §30-5-29(d) of this code shall not alter the manner in which dialysate, drugs, devices necessary to perform home peritoneal renal dialysis to patients with end state renal disease are billed by Medicaid under the current pharmacy benefit structure.

(f) A person who handles a prescription drug only during the point of sale to provide the prescription drug to a patient and accept payment is not subject to the licensure requirements of this article. This handling process includes the cashier having access to the pharmacy’s operating system to verify unique information for each patient. A pharmacy may require an individual to complete a criminal background check before he or she is hired.

§30-5-30. Actions to enjoin violations.

(a) If the board obtains information that any person 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 article, the rules promulgated pursuant to this article, or a final order or decision of the board, it may issue a notice to the person to cease and desist in engaging in the act and/or apply to the circuit court in the county of the alleged violation for an order enjoining the act.

(b) The circuit court may issue a temporary injunction pending a decision on the merits, and may issue a permanent injunction based on its findings in the case.

(c) The judgment of the circuit court on an application permitted by the provisions of this section is final unless reversed, vacated or modified on appeal to the West Virginia Supreme Court of Appeals.

§30-5-31. Complaints; investigations; due process procedure; grounds for disciplinary action.

(a) The board may initiate a complaint upon receipt of credible information, and shall upon the receipt of a written complaint of any person, cause an investigation to be made to determine whether grounds exist for disciplinary action under this article or the legislative rules promulgated pursuant to this article.

(b) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the licensee, registrant or permittee has violated subsection (g) of this section or rules promulgated pursuant to this article.

(c) Upon a finding of probable cause to go forward with a complaint, the board shall provide a copy of the complaint to the licensee, registrant or permittee.

(d) Upon a finding that probable cause exists that the licensee, registrant or permittee has violated subsection (g) of this section or rules promulgated pursuant to this article, the board may enter into a consent decree or hold a hearing for disciplinary action against the licensee, registrant or permittee. Any hearing shall be held in accordance with the provisions of this article, and shall require a violation to be proven by a preponderance of the evidence.

(e) Any member of the board or the executive director of the board may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations against any person regulated by the article.

(f) Any member of the board or its executive director may sign a consent decree or other legal document on behalf of the board.

(g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend, restrict or revoke the license, registration or permit of, or impose probationary conditions upon or take disciplinary action against, any licensee, registrant or permittee for any of the following reasons:

(1) Obtaining a board authorization by fraud, misrepresentation or concealment of material facts;

(2) Being convicted of a felony, other crime involving moral turpitude or a violation of chapter sixty-a of this code.

(3) Being guilty of unprofessional conduct which placed the public at risk, as defined by legislative rule of the board;

(4) Intentional violation of a lawful order or legislative rule of the board;

(5) Having had a board authorization revoked or suspended, other disciplinary action taken, or an application for a board authorization revoked or suspended by the proper authorities of another jurisdiction;

(6) Aiding or abetting unlicensed practice;

(7) Engaging in an act while acting in a professional capacity which has endangered or is likely to endanger the health, welfare or safety of the public;

(8) Incapacity that prevents a licensee or registrant from engaging in the practice of pharmacist care or assisting in the practice of pharmacist care, with reasonable skill, competence, and safety to the public;

(9) Violation of any laws, including rules pertaining thereto, of this or any other jurisdiction, relating to the practice of pharmacist care, drug samples, drug manufacturing, wholesale or retail drug or device distribution, or controlled substances;

(10) Committing fraud in connection with the practice of pharmacist care;

(11) Disciplinary action taken by another state or jurisdiction against a board authorization to practice pharmacist care based upon conduct by the licensee, registrant or permittee similar to conduct that would constitute grounds for actions as defined in this section;

(12) Failure to report to the board any adverse action taken by another licensing jurisdiction, government agency, law-enforcement agency, or court for conduct that would constitute grounds for action as defined in this section;

(13) Failure to report to the board one's surrender of a license or authorization to practice pharmacist care in another jurisdiction while under disciplinary investigation by any of those authorities or bodies for conduct that would constitute grounds for action as defined in this section;

(14) Failure to report to the board any adverse judgment, settlement, or award arising from a malpractice claim related to conduct that would constitute grounds for action as defined in this section;

(15) Knowing or suspecting that a licensee or registrant is incapable of engaging in the practice of pharmacist care or assisting in the practice of pharmacist care, with reasonable skill, competence, and safety to the public, and failing to report any relevant information to the board;

(16) Illegal use or disclosure of protected health information;

(17) Engaging in any conduct that subverts or attempts to subvert any licensing examination or the administration of any licensing examination;

(18) Failure to furnish to the board or its representatives any information legally requested by the board, or failure to cooperate with or knowingly engaging in any conduct which obstructs an investigation being conducted by the board;

(19) Agreeing to participate in a prescription drug product conversion program promoted or offered by a manufacturer, wholesaler or distributor of such product for which the pharmacist or pharmacy received any form of financial remuneration, or agreed to participate in a prescription drug program in which the pharmacist or pharmacy is promoted or offered as the exclusive provider of prescription drug products or whereby in any way the public is denied, limited or influenced in selecting pharmacist care or counseling;

(20) Violation of any of the terms or conditions of any order entered in any disciplinary action.

(h) For the purposes of subsection (g) of this section, effective July 1, 2013, disciplinary action may include:

(1) Reprimand;

(2) Probation;

(3) Restrictions;

(4) Suspension;

(5) Revocation;

(6) Administrative fine, not to exceed $1,000 per day per violation;

(7) Mandatory attendance at continuing education seminars or other training;

(8) Practicing under supervision or other restriction; or

(9) Requiring the licensee, registrant or permittee to report to the board for periodic interviews for a specified period of time.

(i) In addition to any other sanction imposed, the board may require a licensee, registrant or permittee to pay the costs of the proceeding.

(j) The board may defer disciplinary action with regard to an impaired licensee or registrant who voluntarily signs an agreement, in a form satisfactory to the board, agreeing not to practice pharmacist care and to enter an approved treatment and monitoring program in accordance with the board's legislative rule. This subsection, provided that this section should not apply to a licensee or registrant who has been convicted of, pleads guilty to, or enters a plea of nolo contendere or a conviction relating to a controlled substance in any jurisdiction.

(k) A person authorized to practice under this article, who reports or otherwise provides evidence of the negligence, impairment or incompetence of another member of this profession to the board or to any peer review organization, is not liable to any person for making such a report if such report is made without actual malice and in the reasonable belief that such report is warranted by the facts known to him or her at the time.

§30-5-32. Procedures for hearing; right of appeal.

(a) Hearings are governed by the provisions of section eight, article one of this chapter.

(b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.

(c) If the hearing is conducted by an administrative law judge, at the conclusion of a hearing he or she shall prepare a proposed written order containing findings of fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the board so directs. The board may accept, reject or modify the decision of the administrative law judge.

(d) Any member or the executive director of the board has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.

(e) If, after a hearing, the board determines the licensee, registrant or permittee has violated provisions of this article or the board's rules, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.

§30-5-33. Judicial review.

Any person adversely affected by a decision of the board entered after a hearing may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance with article six, chapter twenty-nine-a of this code.

§30-5-34. Criminal offenses.

(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a person authorized under this article has committed a criminal offense under this article, the board may bring its information to the attention of an appropriate law-enforcement official.

(b) Any person who intentionally practices, or presents himself or herself out as qualified to practice pharmacist care or to assist in the practice of pharmacist care, or uses any title, word or abbreviation to indicate to or induce others to believe he or she is licensed to practice as a pharmacist or pharmacist technician without obtaining an active, valid West Virginia license to practice that profession; or

With a license that is:

(1) Expired, suspended or lapsed; or

(2) Inactive, revoked, suspended as a result of disciplinary action, or surrendered;

is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than ten thousand dollars.

§30-6-1. License required to practice.

The practice of preparing dead human bodies for burial or cremation and the subsequent burial or cremation thereof has serious public health and safety considerations and should only be practiced by a person who has specific training in those fields.

Therefore, the Legislature hereby finds that to protect the public interest a person must have a license, as provided in this article, to practice embalming, funeral directing and cremation and to operate a funeral establishment and crematory in the State of West Virginia.

§30-6-2. Short title.

This article shall be known and may be cited as the "West Virginia Funeral Service Examiners Act".

§30-6-3. Definitions.

As used in this article, the following words and terms have the following meanings, unless the context clearly indicates otherwise:

“Alkaline hydrolysis” means the reduction of a dead human body to essential elements through a water-based dissolution process using alkaline chemicals, heat, agitation, and pressure to accelerate natural decomposition; the processing of hydrolyzed remains after removal from the alkaline hydrolysis vessel; placement of the processed remains in a hydrolyzed remains container; and release of the hydrolyzed remains to an appropriate party. Alkaline hydrolysis is a form of final disposition.

“Apprentice” means a person who is preparing to become a licensed funeral director or a funeral service licensee and is learning the practice of embalming, funeral directing, or cremation under the direct supervision and personal instruction of a duly licensed funeral service licensee.

“Authorized representative” means a person legally authorized or entitled to order the cremation or burial of the deceased, as established by rule. An authorized representative may include in the following order of precedence:

(a) The deceased, who has expressed his or her wishes regarding the disposal of their remains through a last will and testament, an advance directive, or preneed funeral contract, as defined in §45-14-2 of this code;

(b) The surviving spouse of the deceased, unless a petition to dissolve the marriage was pending at the time of decedent’s death;

(c) An individual previously designated by the deceased as the person with the right to control disposition of the deceased’s remains in a writing signed and notarized by the deceased: Provided, That no person may be designated to serve in such capacity for more than one nonrelative at any one time;

(d) The deceased’s next of kin;

(e) A court order;

(f) A public official who is charged with arranging the final disposition of an indigent deceased; or

(g) A representative of an institution who is charged with arranging the final disposition of a deceased who donated his or her body to science.

“Board” means the West Virginia Board of Funeral Service Examiners.

“Certificate” means a certification by the board to be a crematory operator.

“Courtesy card holder” means a person who only practices funeral directing periodically in West Virginia and is a licensed embalmer and funeral director in a state which borders West Virginia.

“Cremated remains” or “cremains” means all human remains, including foreign matter cremated with the human, recovered after the completion of cremation.

“Cremation” means the mechanical or thermal process whereby a dead human body is reduced to ashes and bone fragments and then further reduced by additional pulverization, burning, or re-cremating when necessary.

“Crematory” means a licensed place of business where a deceased human body is reduced to ashes and bone fragments.

“Crematory operator” means a person certified by the board to operate a crematory.

“Crematory operator in charge” means a certified crematory operator who accepts responsibility for the operation of a crematory.

“Deceased” means a dead human being for which a death certificate is required.

“Embalmer” means a person licensed to practice embalming.

“Embalming” means the practice of introducing chemical substances, fluids, or gases used for the purpose of preservation or disinfection into the vascular system or hollow organs of a dead human body by arterial or hypodermic injection for the restoration of the physical appearance of a deceased.

“Funeral” means a service, ceremony, or rites performed for the deceased with a body present.

“Funeral directing” means the business of engaging in the following:

(a) The shelter, custody, or care of a deceased;

(b) The arranging or supervising of a funeral or memorial service for a deceased; and

(c) The maintenance of a funeral establishment for the preparation, care, or disposition of a deceased.

“Funeral director” means a person licensed to practice funeral directing.

“Funeral establishment” means a licensed place of business devoted to the care, preparation, and arrangements for the transporting, embalming, funeral, burial, or other disposition of a deceased. A funeral establishment can include a licensed crematory.

“Funeral service licensee” means a person licensed after July 1, 2003, to practice embalming and funeral directing.

“License” means a license, which is not transferable or assignable, to:

(a) Practice embalming and funeral directing; and,

(b) Operate a crematory or a funeral establishment.

“Licensee” means a person holding a license issued under the provisions of this article.

“Licensee in charge” means a licensed embalmer and funeral director who accepts responsibility for the operation of a funeral establishment.

“Memorial service” means a service, ceremony, or rites performed for the deceased without a body present.

“Mortuary” means a licensed place of business devoted solely to the shelter, care, and embalming of the deceased.

“Person” means an individual, partnership, association, corporation, not-for-profit organization, or any other organization.

“Registration” means a registration issued by the board to be an apprentice to learn the practice of embalming, funeral directing, or cremation.

“State” means the State of West Virginia.

§30-6-4. Board of funeral service examiners.

(a) The "West Virginia Board of Embalmers and Funeral Directors" is hereby continued and shall, after June 30, 2002, be known as the "West Virginia Board of Funeral Service Examiners". The members of the board in office on July 1, 2002 shall, unless sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and qualified.

(b) Commencing with the board terms beginning July 1, 2002, the board shall consist of seven members appointed for terms of four years by the Governor, by and with the advice and consent of the Senate. Five members must be licensed embalmers and funeral directors, and one member must be a citizen member who is not licensed, certified or registered under the provisions of this article and who is not a person who performs any services related to the practice of embalming or funeral directing. Commencing with the board terms beginning July 1, 2002, the Governor shall appoint, by and with the advice and consent of the Senate, one person who operates a crematory in West Virginia which person shall replace the current board member whose term ended on June 30, 2002. The crematory operator who is appointed for the term commencing July 1, 2002, shall register and be certified, pursuant to the provisions of this article. Any crematory operator appointed thereafter shall be certified, pursuant to the provisions of this article.

(c) Each licensed member of the board, at the time of his or her appointment, must have held a license in this state for a period of not less than five years immediately preceding the appointment and each member must be a resident of this state during the appointment term. Each certified member must abide by the provisions of subsection (b) of this section. Board members must represent at least four different geographic regions of the state.

(d) No member may serve more than two consecutive full terms and any member having served two full terms may not be appointed for one year after completion of his or her second full term. A member shall continue to serve until his or her successor has been appointed and qualified.

(e) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.

(f) Any member of the board immediately and automatically forfeits his or her membership if he or she has his or her license or certificate to practice suspended or revoked by the board, is convicted of a felony under the laws of any state or the United States or becomes a nonresident of this state.

(g) The board shall annually elect one of its members as president and one of its members as secretary.

(h) Each member of the board shall receive compensation and expense reimbursement in accordance with section eleven, article one of this chapter.

§30-6-5. Powers of the board.

The board has all the powers set forth in article one of this chapter and in addition may:

(1) Sue and be sued in its official name as an agency of this state;

(2) Hire, fix the compensation of and discharge an executive director;

(3) Hire, fix the compensation of and discharge the employees necessary to enforce the provisions of this article;

(4) Set the requirements to be an inspector;

(5) Examine and determine the qualifications of any applicant for a license;

(6) Determine the qualifications of any applicant for a certificate;

(7) Set cremation procedures and requirements;

(8) Set the fees charged under the provisions of this article;

(9) Set the fines assessed under the provisions of this article;

(10) Issue, renew, deny, suspend, revoke or reinstate licenses and certificates and discipline licensees and certificate holders;

(11) Set the continuing education requirements for licensees and certificate holders;

(12) Investigate alleged violations of the provisions of this article and the rules promulgated hereunder, and orders and final decisions of the board;

(13) Conduct hearings upon charges calling for discipline of a licensee or revocation or suspension of a license;

(14) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article; and

(15) Take all other actions necessary and proper to effectuate the purposes of this article.

§30-6-6. Rule-making authority.

(a) The board shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article including, but not limited to, the following:

(1) The general practice of embalming, funeral directing and cremating, and operating a funeral establishment and crematory: Provided, That the board cannot require that an applicant for a license to operate a funeral establishment or crematory have either an embalmer's or funeral director's license, or a certificate to operate a crematory.

(2) The examinations administered under this article;

(3) The issuing and renewing of licenses, certificates and courtesy cards, including establishing a staggered biennial renewal schedule;

(4) The requirements for inactive licensees;

(5) The registration and regulation of apprentices;

(6) Establish a cremation procedure and crematory requirements;

(7) Establish inspection requirements for funeral establishments and crematories, including an inspection of a new facility and annual inspections of existing facilities;

(8) Establish inspector and investigator requirements;

(9) Setting the fees charged under the provisions of this article;

(10) Setting the fines assessed under the provisions of this article;

(11) Implementing requirements for continuing education for licensees;

(12) Denying, suspending, revoking, reinstating or limiting the practice of a licensee or certificate of qualification;

(13) The investigation and resolution of complaints against persons licensed, certified or registered under this article;

(14) Establish advertising standards; and

(15) Propose any other rules necessary to effectuate the provisions of this article.

(b) All rules in effect on the effective date of this article shall remain in effect until they are withdrawn, revoked or amended.

§30-6-7. Fees; special revenue account; administrative fines.

(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the state Treasury and be used for the administration of this article. Except as may be provided in section eleven, article one of this chapter, the board shall retain the amounts in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.

(b) Any amounts received as administrative fines imposed pursuant to this article shall be deposited into the General Revenue Fund of the state Treasury.

§30-6-8. Embalmer license requirements.

The board shall issue a license to practice embalming to an applicant who:

(a) Is free of a felony conviction bearing a rational nexus to the profession pursuant to §30-1-24 of this code;

(b) Is 18 years of age or over;

(c) Is a citizen of the United States or is eligible for employment in the United States;

(d) Has a high school diploma or its equivalent;

(e) Has completed one of the following education requirements, as evidenced by a transcript submitted to the board for evaluation:

(1)(A) Has an associate degree from an accredited college or university; or

(2) Has successfully completed at least 60 semester hours or 90 quarter hours of academic work in an accredited college or university toward a baccalaureate degree with a declared major field of study; and

(3) Has graduated from a school of mortuary science, accredited by the American Board of Funeral Service Education, Inc., which requires as a prerequisite to graduation the completion of a course of study of not less than 12 months; or

(B) Has a bachelor degree in mortuary science from an accredited college or university;

(f) Has completed a one-year apprenticeship, under the supervision of a licensed embalmer and funeral director actively and lawfully engaged in the practice of embalming and funeral directing in this state, which apprenticeship consisted of:

(1) Diligent attention to the work in the course of regular and steady employment and not as a side issue to another employment; and

(2) The apprentice taking an active part in:

(A) The operation of embalming not less than 35 dead human bodies; and

(B) Conducting not less than 35 funeral services;

(g) Passes, with an average score of not less than 75 percent, the following examinations:

(1) The International Conference of Funeral Service Examining Boards examination at a testing site provided by the national conference, which passage is a condition precedent to taking the state law examination;

(2) The West Virginia Laws, Rules, and Regulations Examination, administered by the International Conference of Funeral Service Examining Boards; and

(3) Any other examination required by the board; and

(h) Has paid all the appropriate fees.

A license to practice embalming issued by the board prior to July 1, 2012, shall for all purposes be considered a license issued under this section: Provided, That a person holding a license issued prior to July 1, 2012, must renew the license pursuant to the provisions of this article.

§30-6-9. Funeral director license requirements.

(a) The board shall issue a license to practice funeral directing to an applicant who meets the following requirements:

(1) Completed a bachelor’s degree from an accredited institution; and

(2) Completed a two-year apprenticeship under the supervision of a licensee in charge or an active licensed funeral director; and

(3) Has paid all the appropriate fees.

(b) The two-year apprenticeship must consist of the following work:

(1) Diligent attention to the work in the course, or regular and steady employment, and not as a side issue to another employment;

(2) Conducting not less than 35 disposition arrangements for individuals;

(3) Conducting not less than 35 funeral and/or memorial services; and

(4) Passes with an average score of not less than 75 percent, the West Virginia Laws, Rules, and Regulations Examination.

(c) A license to practice funeral directing issued by the board prior to July 1, 2002, shall for all purposes be considered a license issued under this section: Provided, That a person holding a license issued prior to July 1, 2022, must renew the license pursuant to the provisions of this article.

§30-6-10. Funeral service license requirements.

(a) Commencing July 1, 2003, the board shall issue a license to practice embalming and funeral directing, which license shall be known as a funeral service license, to an applicant who meets the following requirements:

(1) Is of good moral character;

(2) Is eighteen years of age or over;

(3) Is a citizen of the United States or is eligible for employment in the United States;

(4) Holds a high school diploma or its equivalent;

(5) Has completed one of the education requirements for an embalmer's license, set out in subdivision (5), subsection (a), section eight of this article; and

(6) Has paid all the appropriate fees.

(b) A license to practice embalming and funeral directing issued by the board prior to July 1, 2003, shall for all purposes be considered a license issued under this section.

(c) A person holding a license to practice embalming and funeral directing issued prior to July 1, 2003, must after July 1, 2003, renew his or her license pursuant to the provisions of this section.

(d) After July 1, 2003, wherever the terms "license to practice embalming and funeral directing" or "embalming and funeral directing license" are used in the code, the term "funeral service license" shall apply.

§30-6-11. Crematory operator certificate requirements.

(a) All crematory operators shall be certified by the board. The board shall issue a certificate to be a crematory operator to an applicant who meets the following requirements:

(1) Has completed a class, authorized by the board, on cremation and operating a crematory;

(2) Has paid all the appropriate fees; and

(3) Has completed such other requirements as prescribed by the board.

(b) All persons currently operating crematories shall by January 1, 2003, register with the board. By July 1, 2003, all persons currently operating crematories shall obtain a certificate to operate a crematory, pursuant to the provisions of this section.

(c) All certificates must be renewed biennially upon or before July 1.

(d) After July 1, 2003, all licensed crematories must have a certified crematory operator in charge.

§30-6-12. Licenses or equivalent from another state; license or certificate to practice in this state.

The board may issue a license to practice embalming and funeral directing or a certificate to be a crematory operator to an applicant of good moral character who holds a valid license or its equivalent to practice from another state if the applicant demonstrates that:

(1) He or she holds a license or its equivalent to practice in another state which was granted after completion of educational requirements substantially equivalent to those required in this state;

(2) He or she holds a license or its equivalent to practice in another state which was granted after passing, in that or another state, an examination that is substantially equivalent to the examination required in this state;

(3) Reciprocal rights are provided by such other state to holders of funeral director's or embalmer's licenses granted in this state. Such reciprocal licenses may be renewed biennially upon payment of the renewal license fee;

(4) He or she is not currently being investigated by a disciplinary authority of another state, does not have charges pending against his or her license or something equivalent to practice and has never had a license or something equivalent to practice revoked;

(5) He or she has not previously failed an examination for licensure as an embalmer or funeral director in this state;

(6) He or she has paid the application fee specified by rule; and

(7) Has completed such other action as required by the board.

§30-6-13. Courtesy cards.

(a) The board may issue biennial courtesy cards, on July 1, to licensed funeral directors and licensed embalmers in the states bordering on West Virginia, after the:

(1) Application for a courtesy card is made on a form prescribed by the board;

(2) Payment of a fee; and

(3) Adherence to such other requirements as specified by the board.

(b) A courtesy card may be issued under the following conditions:

(1) Holders of courtesy cards shall not be permitted to open or operate a place of business for the purpose of conducting funerals, embalming bodies or cremating in the State of West Virginia; and

(2) Holders of courtesy cards shall not be permitted to maintain an office or agency in this state for the purpose of conducting funerals, embalming bodies or cremating in the State of West Virginia.

(c) A violation of this section shall be sufficient cause for the board to immediately revoke or cancel the courtesy card of the violator.

§30-6-14. License and certificate renewal; conditions of renewal.

(a) The board shall biennially on July 1, and pursuant to a staggered schedule, renew a license to practice embalming and funeral directing or a certificate to be a crematory operator to every licensee or certificate holder desiring to continue in active practice or service.

(b) The board shall charge a fee for each renewal and a late fee for nonrenewal of a license or certificate.

(c) The board shall require as a condition for the renewal of a license to practice embalming and funeral directing or a certificate to be a crematory operator that each licensee participate in continuing education: Provided, That any licensed embalmer or funeral director sixty-five years or older with at least ten years experience as a licensed embalmer or licensed funeral director, is entitled to be issued, after payment of a fee, a license as an embalmer emeritus or funeral director emeritus and is exempt from all continuing education requirements. The emeritus license shall entitle the holder to all the rights and privileges of the license previously held by the licensee.

(d) Any person licensed to practice embalming and funeral directing or certified to be a crematory operator who does not desire to continue in active practice shall notify the board, in a manner specified by the board, and pay a fee, and shall, during such period, be listed by the board as being inactive. At such time a person desires to return to active practice, he or she must notify the board, in a manner specified by the board, and complete all the continuing education requirements.

§30-6-15. Continuing education.

(a) Hours of continuing education may be obtained by attending and participating in board-approved programs, meetings, seminars, or activities. It is the responsibility of each licensee to finance his or her costs of continuing education.

(b) Compliance with the requirements of continuing education, as specified by the board, is a prerequisite for license renewal.

§30-6-16. Inspector and inspection requirements.

(a) All inspectors employed by the board to inspect funeral establishments and crematories, pursuant to the provisions of this article, shall have a West Virginia embalmer’s license and a West Virginia funeral director’s license.

(b) Each inspector shall inspect a specific region, as designated by the board. Any person being employed as an inspector is prohibited from inspecting in the region in which he or she practices. If there is only one inspector, a board member, who is not from the region where the inspector practices, is authorized to inspect the facilities in the region where the inspector practices.

(c) All inspections shall be conducted in a manner so as not to interfere with the conduct of business within the funeral establishment or crematory. The board has the authority to enter, at all reasonable hours, for the purpose of inspecting the premises in which the business of embalming, funeral directing, or cremating is conducted.

(d) All of an inspector’s expenses, per diem, and compensation shall be paid out of the receipts of the board, but the allowances shall at no time exceed the receipts of the board.

(e) The board is authorized to set fees for inspections: Provided, That there shall be no fee for a biennial inspection, based on the funeral establishment’s renewal date.

§30-6-17. Apprenticeship.

(a) After July 1, 2022, the board shall issue a registration to be an apprentice funeral service licensee to an applicant who meets the following requirements:

(1) Is free of a felony conviction bearing a rational nexus to the profession pursuant to §30-1-24 of this code;

(2) Is 18 years of age or over;

(3) Is a citizen of the United States or be eligible for employment in the United States;

(4) Has a high school diploma or its equivalent;

(5) The required 60 semester hours or 90 quarter hours of college or university credits and mortuary school can be completed prior to, during, or after the apprenticeship; and

(6) Has paid the appropriate fees.

(b) Any person that commences an apprenticeship prior to January 1, 2003, may continue to serve such apprenticeship and is not subject to the requirements set forth in this section, but is subject to board approval.

(c) The board may set the requirements for an apprenticeship, including the manner in which it shall be served and the length of time, which shall not be more than one year for a funeral service licensee and shall not be more than two years for a funeral director.

(d) No licensed funeral director or licensed embalmer shall be permitted to register or have registered more than five apprentices under his or her license at the same time.

§30-6-18. Funeral establishment license requirements.

(a) Every funeral establishment in West Virginia shall be licensed prior to opening a funeral establishment for business to the public. The board shall issue a license to operate a funeral establishment to an applicant who meets the following requirements:

(1) The place of business has been approved by the board as having met all the requirements and qualifications to be a funeral establishment as are required by this article;

(2) Notify the board, in writing, at least thirty days before the proposed opening date, so there can be an inspection of the funeral establishment;

(3) Show proof that the funeral establishment passed the inspection;

(4) Show that the funeral establishment has employed a licensee in charge;

(5) Show that the licensee in charge is a licensed funeral director;

(6) Show that the licensee in charge will manage the funeral establishment and be responsible for all business conducted and services performed therein;

(7) Pay all the appropriate fees; and

(8) Complete such other requirements as specified by the board.

(b) All funeral establishment licenses must be renewed biennially, by a staggered schedule, upon or before July 1, and pay a renewal fee.

(c) Each funeral establishment license shall be valid for only one funeral establishment to be located at a specific street address. There shall be a separate license issued and a separate fee assessed to operate additional funeral establishments by the same applicant.

(d) A holder of a funeral establishment license that fails to pay fees for either the principal establishment or additional establishments by July 1, of the renewal year is subject to a penalty, a reinstatement fee for each establishment and the required renewal fee.

(e) The holder of a funeral establishment license who ceases to operate the funeral establishment at the location specified in the application shall, within twenty days thereafter, surrender the funeral establishment license to the board and the license shall be canceled by the board. In the event of the death of an individual who was the holder of a funeral establishment license, it shall be the duty of the holder's personal representative to surrender the funeral establishment license within one hundred twenty days of qualifying as the personal representative.

(f) If a licensee in charge ceases to be employed by a funeral establishment, then the holder of the funeral establishment license shall notify the board within thirty days of the cessation. Within thirty days after such notification, the holder of a funeral establishment license shall execute a new application for a funeral establishment license specifying the name of the new licensee in charge. A funeral establishment is prohibited from operating more than thirty days without a licensee in charge.

(g) A licensee whose embalmer's or funeral director's license has been revoked or a holder of a license to operate a funeral establishment whose license to operate has been revoked shall not operate, either directly or indirectly, or hold any interest in any funeral establishment or crematory: Provided, That a holder of a license to operate a funeral establishment whose license to operate has been revoked is not prohibited from leasing any property owned by him or her for use as a funeral establishment, so long as the property owner does not participate in the control or profit of the funeral establishment except as lessor of the premises for a fixed rental not dependent upon earnings.

(h) Failure to comply with any of these provisions shall be grounds for revocation of a funeral establishment license.

(i) A license to operate a funeral establishment issued by the board prior to July 1, 2002, shall for all purposes be considered a license issued under this section: Provided, That a funeral establishment holding a license issued prior to July 1, 2002, must renew the license pursuant to this section.

§30-6-19. Funeral establishment to be managed by a licensee in charge; license displayed.

(a) Every separate funeral establishment in this state offering the services set forth in this article shall be operated under the supervision and management of a licensee in charge who is licensed as a funeral director in this state who shall hold an active:

(1) Funeral Service licensee’s license in the State of West Virginia;

(2) Embalmers license in the State of West Virginia;

(3) Crematory Operator certificate in the State of West Virginia; and

(4) Pre-Need license in the State of West Virginia.

(b) Each separate funeral establishment in this state offering the services set forth in this article shall have its own license, which license shall be prominently displayed within the funeral establishment.

(c) All funeral establishments shall display in all advertising the name of the licensee in charge of the establishment.

(d) All funeral establishments shall prominently display within the funeral establishment the license of the licensee in charge.

(e) A licensee in charge shall supervise each separate establishment.

(f) Effective July 1, 2022, the board shall allow up to two years to complete the requirements under this section for the licensee in charge.

§30-6-20. Crematory license requirements.

(a) Every crematory shall be licensed in West Virginia. The board shall issue a crematory license to an applicant who meets the following requirements:

(1) The place of business has been approved by the board as having met all the requirements and qualifications to be a crematory as are required by this article;

(2) The crematory conforms with all local building codes;

(3) The crematory meets all applicable environmental standards;

(4) Notify the board, in writing, at least 30 days before the proposed opening date so there can be an inspection of the crematory;

(5) Show proof that the crematory passed the inspection;

(6) Have a certified crematory operator in charge;

(7) Pay all the appropriate fees; and

(8) Complete such other requirements as specified by the board.

(b) All crematory licenses must be renewed biennially, by a staggered schedule, upon or before July 1, and pay a renewal fee.

(c) Each crematory license shall be valid for only one crematory to be located at a specific street address. There shall be a separate license issued and a separate fee assessed to operate additional crematories by the same applicant.

(d) A holder of a crematory license that fails to pay fees for either the principal crematory or additional crematories by July 1, of the renewal year is subject to a penalty, a reinstatement fee for each crematory, and the required renewal fee.

(e) The holder of a crematory license who ceases to operate the crematory at the location specified in the application shall, within 20 days thereafter, surrender the crematory license to the board and the license shall be canceled by the board. In the event of the death of an individual who was the holder of a crematory license, it shall be the duty of the holder’s personal representative to surrender the crematory license within 120 days of qualifying as the personal representative.

(f) A holder of a certificate to operate a crematory whose certificate to operate has been revoked or a holder of a crematory license whose license has been revoked shall not operate, either directly or indirectly, or hold any interest in any crematory or funeral establishment: Provided, That a holder of a crematory license whose license has been revoked is not prohibited from leasing any property owned by him or her for use as a crematory, so long as the property owner does not participate in the control or profit of the crematory except as lessor of the premises for a fixed rental not dependent upon earnings.

(g) Failure to comply with any of these provisions shall be grounds for revocation of a crematory license.

(h) All persons that operate crematories shall by January 1, 2003, register with the board. By July 1, 2003, all persons that operate crematories shall obtain a crematory license, pursuant to the provisions of this section.

(i) All crematory licenses must be renewed biennially upon or before July 1.

(j) After July 1, 2003, all licensed crematories must have a certified crematory operator in charge.

(k) If a certified crematory operator in charge ceases to be employed by a crematory, then the holder of the crematory license shall notify the board within 30 days of the cessation. Within 30 days after such notification, the holder of a crematory license shall execute a new application for a crematory license specifying the name of the new certified crematory operator in charge. A crematory is prohibited from operating more than 30 days without a certified crematory operator in charge.

§30-6-21. Requirements for cremating.

(a) A crematory shall obtain written permission prior to cremating a dead human body. The written permission shall be obtained from persons authorized by the board as specified in rules.

(b) The written permission shall be on a standard form, prescribed by the board, and shall contain the following information:

(1) The identity of the deceased;

(2) The name of the person authorizing the cremation and the relationship, if any, to the deceased;

(3) Permission for the crematory to perform the cremation;

(4) The name of the person who will claim the cremains from the crematory; and

(5) Any other information required by the board.

(c) A crematory shall obtain a permit or authorization for cremation from the county medical examiner, the assistant county medical examiner or the county coroner of the county wherein the death occurred and do such other acts as required by section nine, article twelve, chapter sixty-one of this code: Provided, That a crematory may obtain a permit or authorization for cremation from the chief medical examiner if:

(1) The crematory is unable to obtain a permit from the county medical examiner, the assistant county medical examiner or the county coroner of the county wherein the death occurred; or

(2) The crematory has concerns following authorization by county personnel regarding the identity or cause of death of the deceased.

(d) The permit or authorization for cremation shall be on forms prescribed by the chief medical examiner. A permit or authorization for cremation may be done by facsimile.

(e) All crematories shall implement a cremation procedure. The board, by rules, shall establish the cremation procedure which shall include:

(1) An identification process for bodies;

(2) A tracking process for bodies from the time a body is delivered to a crematory through the time the cremains are claimed by the authorized person;

(3) Obtaining all the required signatures, as specified by the board, on the written permission for cremation;

(4) Only cremating one human body at a time and prohibiting comingling of cremains;

(5) The specified time period a crematory is required to keep unclaimed cremains;

(6) How to dispose of unclaimed cremains;

(7) A record-keeping process for cremations; and

(8) Any other requirements necessary to effectuate the provisions of this article.

(f) The board shall establish requirements for:

(1) The equipment needed to complete the cremation process; and

(2) The containers needed to store the cremains.

§30-6-22. Disposition of body of deceased person; penalty.

(a) No public officer, employee, physician or surgeon, or other person having a professional relationship with the deceased, shall send, or cause to be sent to an embalmer, funeral director or crematory operator the body of a deceased without first inquiring the desires of the deceased who has designated his or her wishes regarding the disposal of their remains through a last will and testament, an advance directive or preneed funeral contract, as defined in section two, article fourteen, chapter forty-five of this code; the surviving spouse of the deceased, unless a petition to dissolve the marriage was pending at the time of decedent's death; and, an individual previously designated by the deceased as the person with the right to control disposition of the deceased's remains in a writing signed and notarized by the deceased: Provided, That no person may be designated to serve in such capacity for more than one nonrelative at any one time. If there is no last will and testament, advance directive or preneed funeral contract, surviving spouse, or designated person, then the authority and direction of any next of kin or person who may be chargeable with the funeral expenses of the deceased shall be used as to the disposal of the body of the deceased. The provisions of this subsection are not applicable if the remains of the decedent are subject to disposition pursuant to subsection (b) of this section.

(b) Notwithstanding any provision of this code to the contrary, a United States Department of Defense Record of Emergency Data Form (DD Form 93) executed by a declarant who dies while serving in a branch of the United States Military as defined in 10 U. S. C. §1481 constitutes a valid form of declaration instrument and governs the disposition of the declarant's remains. The person named in the form as the person authorized to direct disposition of the remains may arrange for the final disposition of the declarant's last remains.

(c) Any person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500, nor more than $1,000, or imprisoned not less than ten days nor more than ninety days, or both.

§30-6-22a. Right of disposition; preneed contract; affidavit on disposition of remains; role of county commission; liability of funeral home.

(a) Notwithstanding section 22 of this article, a person who is 18 years of age or older and of sound mind, by entering into a preneed funeral contract, as defined in §47-14-2 of this code, may direct the location, manner and conditions of the disposition of the person’s remains and the arrangements for funeral goods and services to be provided upon the person’s death. The disposition directions and funeral prearrangements that are contained in a preneed funeral contract are not subject to cancellation or revision unless any resources set aside to fund the preneed funeral contract are insufficient under the terms of the preneed funeral contract to carry out the disposition directions and funeral prearrangements contained in the contract.

(b) As to any matter not addressed in a preneed funeral contract as described in subsection (a) of this section and except as provided in subsection (c) of this section, the right to control the disposition of the remains of a deceased person, the location, manner and conditions of disposition, and arrangements for funeral goods and services to be provided vests in the following, in the order named, provided that the person is 18 years or older and is of sound mind:

(1)(A) A person designated by the decedent as the person with the right to control the disposition in an affidavit executed in accordance with paragraph (B) of this subdivision; and

(B) A person who is 18 years of age or older and of sound mind wishing to authorize another person to control the disposition of his or her remains may execute an affidavit before a notary public in substantially the following form:

“I, ________________, do hereby designate ___________________ with the right to control the disposition of my remains upon my death. I ___ have/ ____ have not attached specific directions concerning the disposition of my remains with which the designee shall substantially comply, provided that these directions are lawful and there are sufficient resources in my estate to carry out the directions.

______________________________

Signed

State of _______________

County of ______________

I, _________________________, a Notary Public of said County, do certify that _____________________________________, as principal whose name is signed to the writing above bearing date on the ______ day of _________, 20____, has this day acknowledged the same before me.

Given under my hand this ______ day of ______, 20__.

My commission expires: _______________________________

____________________________

Notary Public”;

(2) The surviving spouse of the decedent;

(3) The sole surviving child of the decedent or, if there is more than one child of the decedent, the majority of the surviving children. However, less than one half of the surviving children shall be vested with the rights under this section if they have used reasonable efforts to notify all other surviving children of their instructions and are not aware of any opposition to those instructions on the part of more than one half of all surviving children;

(4) The surviving parent or parents of the decedent. If one of the surviving parents is absent, the remaining parent shall be vested with the rights and duties under this section after reasonable efforts have been unsuccessful in locating the absent surviving parent;

(5) The surviving brother or sister of the decedent or, if there is more than one sibling of the decedent, the majority of the surviving siblings. However, less than the majority of surviving siblings shall be vested with the rights and duties under this section if they have used reasonable efforts to notify all other surviving siblings of their instructions and are not aware of any opposition to those instructions on the part of more than one half of all surviving siblings;

(6) The surviving grandparent of the decedent or, if there is more than one surviving grandparent, the majority of the grandparents. However, less than the majority of the surviving grandparents shall be vested with the rights and duties under this section if they have used reasonable efforts to notify all other surviving grandparents of their instructions and are not aware of any opposition to those instructions on the part of more than one half of all surviving grandparents;

(7) Adult grandchildren.

(8) The guardian of the person of the decedent at the time of the decedent’s death if one had been appointed;

(9) The personal representative of the estate of the decedent;

(10) The person in the classes of the next degree of kinship, in descending order, under the laws of descent and distribution to inherit the estate of the decedent. If there is more than one person of the same degree, any person of that degree may exercise the right of disposition;

(11) If the disposition of the remains of the decedent is the responsibility of the state or a political subdivision of the state, the public officer, administrator or employee responsible for arranging the final disposition of decedent’s remains; or

(12) In the absence of any person under subdivisions (1) through (11) of this subsection, any other person willing to assume the responsibilities to act and arrange the final disposition of the decedent’s remains, including the funeral director with custody of the body, after attesting in writing that a good-faith effort has been made to no avail to contact the individuals under subdivisions (1) through (11) of this subsection.

(c) A person entitled under law to the right of disposition forfeits that right, and the right is passed on to the next qualifying person as listed in subsection (b) of this section, in the following circumstances:

(1) Any person charged with murder or voluntary manslaughter in connection with the decedent’s death and whose charges are known to the funeral director. However, if the charges against that person are dismissed or if the person is acquitted of the charges, the right of disposition is returned to the person;

(2) Any person who does not exercise his or her right of disposition within two days of notification of the death of decedent or within three days of decedent’s death, whichever is earlier;

(3) If the person and the decedent are spouses and a petition to dissolve the marriage was pending at the time of decedent’s death.

(d) Any person signing a funeral service agreement, cremation authorization form or any other authorization for disposition shall be deemed to warrant the truthfulness of any facts set forth therein, including the identity of the decedent whose remains are to be buried, cremated or otherwise disposed of, and the party’s authority to order the disposition. A funeral home has the right to rely on that funeral service agreement or authorization and shall have the authority to carry out the instructions of the person or persons the funeral home reasonably believes holds the right of disposition. The funeral home has no responsibility to independently investigate the existence of any next of kin or relative of the decedent where a means of disposition is fully set forth in a preneed funeral contract or other written directive of the deceased in accordance with this section. If there is more than one person in a class who are equal in priority and the funeral home has no knowledge of any objection by other members of that class, the funeral home may rely on and act according to the instructions of the first person in the class to make funeral and disposition arrangements, if no other person in that class provides written objections to the funeral home.

(e) No funeral establishment or funeral director who relies in good faith upon the instructions of a preneed funeral contract, written directive of the deceased, or an individual claiming the right of disposition in accordance with this section shall be subject to criminal or civil liability or subject to disciplinary action under this section for carrying out the disposition of the remains in accordance with those instructions.

§30-6-23. Refusal to issue or renew, suspension or revocation of license; disciplinary action.

(a) The board may refuse to renew, suspend, revoke or limit any license, certificate or registration or practice privilege of a licensee, or certificate or registration holder and may take disciplinary action against a licensee, or certificate or registration holder after a hearing. The board may refuse to issue, refuse to renew, suspend, revoke or limit any license, certificate or registration or practice privilege of a licensee, or certificate or registration holder for any of the following reasons:

(1) Fraud or deceit in obtaining or maintaining a license;

(2) Failure by any licensee, or certificate or registration holder to maintain compliance with requirements for issuance or renewal of a license, certificate or registration or to timely notify the board as required in this article;

(3) Dishonesty, fraud, professional negligence in the performance of services, or a willful departure from accepted standards and professional conduct;

(4) Violation of any provision of this article or any rule, including the violation of any professional standard or rule of professional conduct, or public health laws;

(5) Conviction of a felony or any crime of which dishonesty or fraud under the laws of the United States or this state, or conviction of any similar crime under the laws of any other state if the underlying act or omission involved would have constituted a crime under the laws of this state;

(6) Any conduct adversely affecting upon the licensee's, or certificate or registration holder's fitness to perform professional services;

(7) The use of false, misleading or unethical advertising by any licensee, or certificate or registration holder, or applicant for a license or certificate of registration;

(8) Upon satisfactory proof that a licensed embalmer, a licensed funeral director, or a certified crematory operator has taken undue advantage of his or her patrons or has committed a fraudulent act in the conduct of business;

(9) Solicitation of business by the licensee, or certificate or registration holder, or any agents, assistants or employees, whether such solicitation occurs after death or while death is impending, as specified by the board: Provided, That this subdivision does not prohibit proper advertising;

(10) If a licensee, or certificate or registration holder, knowingly permits a person not licensed, not certified, or not registered to engage in the profession of embalming, funeral directing or cremation;

(11) If a licensee, or certificate or registration holder, knowingly permits a person not licensed, not certified, or not registered to use his or her license number or numbers for the purpose of practicing, or discharging any of the duties of, the professions of embalming, funeral directing or cremation;

(12) Employment by the licensee of persons as "cappers", "steerers" or "solicitors", or other such persons to obtain funeral or cremation business;

(13) Employment, directly or indirectly, of any apprentice, agent, assistant, embalmer, employee or other person, on part or full time, or on commission, for the purpose of calling upon individuals or institutions by whose influence dead human bodies may be turned over to a particular funeral director, funeral establishment or crematory;

(14) The buying of business by the licensee, or certificate or registration holder, or any agents, assistants or employees, or the direct or indirect payment or offer of payment of a commission by the licensee, or certificate or registration holder, or any agent, assistants or employees, for the purpose of securing business;

(15) Gross immorality; and

(16) Chronic or persistent inebriety or addiction to alcohol, narcotics or other substance.

(b) If the board suspends, revokes, refuses to renew or limits any license, certificate or registration or practice privilege, the board shall give written notice of the action, including a statement of charges setting forth the reasons for the action, and notice of the date, time and place for a hearing. The hearing shall be held in accordance with the provisions of this article.

(c) Disciplinary action includes, but is not limited to, a reprimand, censure, probation, suspension of license, administrative fine not to exceed $1,000 per day per violation and mandatory attendance at continuing education seminars.

§30-6-24. Complaints; investigations.

(a) Upon receipt of a written complaint filed against any licensee, or certificate or registration holder, the board shall provide a copy of the complaint to the licensee, or certificate or registration holder.

(b) The board may investigate the complaint. If the board finds upon investigation that probable cause exists that the licensee, or certificate or registration holder, has violated any provision of this article or the rules promulgated hereunder, then the board shall serve the licensee, or certificate or registration holder, with a written statement of charges and a notice specifying the date, time and place of the hearing. The hearing shall be held in accordance with the provisions of this article.

(c) In addition to other sanctions imposed, the board may require a licensee, or certificate or registration holder to pay the costs of the proceeding if the licensee, or certificate or registration holder is in violation of any provision of this article or the rules promulgated hereunder.

§30-6-25. Hearing and judicial review.

(a) A hearing on a statement of charges shall be held in accordance with the provisions for hearing set forth in section eight, article one of this chapter and procedures specified by rule by the board.

(b) Any licensee, or certificate or registration holder, adversely affected by any decision of the board entered after a hearing, may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code and may appeal any ruling resulting from judicial review in accordance with said article.

§30-6-26. Reinstatement.

If the board has suspended, revoked or refused to renew a license, certificate or registration, the licensee, or certificate or registration holder, shall be afforded an opportunity to demonstrate the qualifications to resume practice. The application for reinstatement shall be in writing and subject to the procedures specified by the board.

§30-6-27. Unlawful acts.

It is unlawful for any person not licensed or certified under the provisions of this article to practice or offer to practice embalming, funeral directing or cremation, or to operate a funeral establishment or crematory in this state.

§30-6-28. Injunctions.

When, as a result of an investigation under this article or otherwise, the board or any other interested person believes that any person: (1) Has engaged, is engaging or is about to engage in the practice of embalming, funeral directing or cremating without a license or certificate; (2) has operated, is operating or is about to operate a funeral establishment or crematory; or (3) is in violation of any of the provisions of this article, the board or any other interested person may make application to any court of competent jurisdiction for an order enjoining the acts or practices and upon a showing that the person has engaged or is about to engage in any act or practice, an injunction, restraining order or another appropriate order may be granted by the court without bond.

§30-6-29. Criminal proceedings; penalties.

(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a person has knowingly violated the provisions of this article, the board may bring its information to the attention of the Attorney General or other appropriate law-enforcement officer who may cause appropriate criminal proceedings to be brought.

(b) Any person who knowingly violates any provision of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $2,500 or confined in the county or regional jail not more than one year, or both fined and imprisoned.

§30-6-30. Single act evidence of practice.

In any action brought or any proceeding initiated under this article, evidence of the commission of a single act prohibited by this article is sufficient to justify a penalty, injunction, restraining order or conviction without evidence of a general course of conduct.

§30-6-31. Inapplicability of article.

The provisions of this article do not apply to or interfere with:

(1) The duties of an officer of any local or state board of health who, in compliance with local or state board of health rules, may be charged with the duty of preparation for burial of a human body when death was caused by a virulent, communicable disease;

(2) The duties of an officer of a medical college, county medical society, anatomical association or other recognized person carrying out his or her responsibilities of dealing with indigent dead human bodies who are held subject for anatomical study; or

(3) The customs or rites of any religious sect in the burial of its dead: Provided, That embalming shall only be performed by a licensed embalmer.

§30-6-32.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§30-7-1. Definitions.

As used in this article:

“Advanced practice registered nurse” means a registered nurse who has acquired advanced clinical knowledge and skills preparing him or her to provide direct and indirect care to patients as a certified nurse practitioner, certified nurse-midwife, certified registered nurse anesthetist, or clinical nurse specialist, who has completed a board-approved graduate-level education program and who has passed a board-approved national certification examination;

“Board” means the West Virginia Board of Examiners for Registered Professional Nurses;

“Collaborative relationship” means a working relationship, structured through a written agreement, in which an advanced practice registered nurse may prescribe drugs in collaboration with a qualified physician;

“Direct patient care” means the provision of services to a sick, injured, mentally or physically disabled, elderly or fragile patient that requires some degree of interaction with that patient. Direct patient care may include assessment, treatment, counseling, procedures, self-care, patient education, administration of medication, and implementation of a care plan;

“Practice of registered professional nursing” or “registered professional nursing” means the performance for compensation of any service requiring substantial specialized judgment and skill based on knowledge and application of principles of nursing derived from the biological, physical and social sciences, such as responsible supervision of a patient requiring skill in observation of symptoms and reactions and the accurate recording of the facts, or the supervision and teaching of other persons with respect to such principles of nursing, or in the administration of medications and treatments as prescribed by a licensed physician, a licensed dentist or a licensed advanced practice registered nurse, or the application of such nursing procedures as involve understanding of cause and effect in order to safeguard life and health of a patient and others; and

“Temporary permit” means a permit authorizing the holder to practice registered professional nursing in this state until such permit is no longer effective or the holder is granted a license by the West Virginia State Board of Examiners for Registered Professional Nurses.

§30-7-1a. Eligibility for licensure by meeting requirements which existed prior to the legislative enactments during the 2012 legislative session.

[Repealed].

§30-7-2. License required to practice.

(a) It is unlawful for any person not licensed under the provisions of this article to practice or to offer to practice registered professional nursing in this state, or to use any title, sign, card or device to indicate that such person is a registered professional nurse: Provided, That any professional nurse holding an active, unencumbered license to practice in another state, who accompanies a patient to whom he or she administers nursing care while such patient is in transit or being transported into, out of, or through this state, may practice without a license issued under this article with the following limitations: (1) Such nurse may only administer nursing care to the patient whom they are accompanying in this state; and (2) under no circumstances is any such nurse authorized to practice nursing in this state for longer than forty-eight hours within any three-month period; and (3) under no circumstances shall any such nurse hold him or herself out as a registered professional nurse licensed in this state. Such forty-eight hour period shall commence and run from the time such nurse first enters the borders of this state in the company of his or her patient and therefrom run continuously, whether or not such nurse dispenses nursing care, until such forty-eight hour period has elapsed.

(b) To practice as an advanced practice registered nurse in this state, a person must have a valid advanced practice registered nurse license issued by the board. It is unlawful for any person to practice or offer to practice as an advanced practice registered nurse, to use any title, sign, card or device to indicate or give the impression that such person is an advanced practice registered nurse or to practice as, perform the role of, or use any title, sign, card or device to indicate that the person is a certified registered nurse anesthetist, certified nurse-midwife, clinical nurse specialist or certified nurse practitioner, unless that person is currently licensed by the board as an advanced practice registered nurse.

§30-7-3. Board of examiners for registered professional nurses.

(a) The West Virginia Board of Examiners for Registered Professional Nurses is renamed the West Virginia Board of Registered Nurses effective July 1, 2022. The members of the West Virginia Board of Examiners for Registered Professional Nurses shall remain as members until the new appointments are made.

(b) By July 1, 2022, the Governor, by and with the advice and consent of the Senate, shall appoint a new board as follows:

(1) One person licensed as an advanced practice registered professional nurse by the board;

(2) One person who is certified as a dialysis technician by the board;

(3) Four persons licensed as a registered professional nurse by the board and meet the following requirements:

(A) One registered professional nurse, who provides direct patient care in a long-term care facility, home health or hospice;

(B) Two registered professional nurses, who provide direct patient care in a hospital setting or acute care setting; and,

(C) One registered professional nurse, who teaches nursing; and,

(4) One citizen member who is not licensed under the provisions of this chapter and who has never performed any services as a health care professional.

(c) Organizations that represent nurses may submit to the Governor recommendations for the appointment of the licensed board members.

(d) The appointment term is four years. A member may not serve more than two consecutive terms. A member may continue to serve until his or her successor has been appointed and qualified.

(e) Each member of the board shall be a resident of this state during the appointment term.

(f) A vacancy on the board shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant.

(g) The Governor may remove any member from the board for neglect of duty, incompetency, or official misconduct.

(h) A licensed member of the board immediately and automatically forfeits membership to the board if his or her license to practice is disciplined in any jurisdiction.

(i) A member of the board immediately and automatically forfeits membership to the board if he or she is convicted of a felony under the laws of any jurisdiction or becomes a nonresident of this state.

(j) The board shall elect one of its members as president and one member as secretary who shall serve at the will and pleasure of the board.

(k) A member of the board is entitled to receive compensation and expense reimbursement in accordance with §30-1-1 et seq. of this code.

(l) A simple majority of the membership serving on the board at a given time is a quorum for the transaction of business.

(m) The board shall hold at least two meetings annually. Other meetings shall be held at the call of the president or upon the written request of four members, at the time and place as designated in the call or request.

(n) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state.

(o) A board member, when acting in good faith and without malice, shall enjoy immunity from individual civil liability while acting within the scope of their duties as board members.

§30-7-4. Organization and meetings of board; quorum; powers and duties generally; executive secretary; funds.

(a) The board has all the powers and duties set forth in this article, in §30-1-1 et seq. of this code and elsewhere in law, including the ability to:

(1) Hold meetings;

(2) Establish procedures for submitting, approving, and rejecting applications for a license and permit;

(3) Determine the qualifications of an applicant for a license and permit;

(4) Establish the fees charged under the provisions of this article;

(5) Issue, renew, restrict, deny, suspend, revoke, or reinstate a license and permit;

(6) Prepare, conduct, administer, and grade written, oral, or written and oral examinations for a license;

(7) Contract with third parties to administer the examinations required under the provisions of this article;

(8) Maintain records of the examinations the board, or a third party, administers, including the number of persons taking the examination and the pass and fail rate;

(9) Maintain an office and hire, discharge, establish the job requirements, and fix the compensation of employees, and contract with persons necessary to enforce the provisions of this article;

(10) Employ investigators, attorneys, hearing examiners, consultants, and other employees as may be necessary who are exempt from the classified service and who serve at the will and pleasure of the board;

(11) Delegate hiring of employees to the executive director;

(12) Investigate alleged violations of the provisions of this article and legislative rules, orders, and final decisions of the board;

(13) Conduct disciplinary hearings of persons regulated by the board;

(14) Determine disciplinary action and issue orders;

(15) Institute appropriate legal action for the enforcement of the provisions of this article;

(16) Maintain an accurate registry of names and addresses of all persons regulated by the board;

(17) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;

(18) Public meeting minutes to its website within 14 days of a meeting;

(19) Propose rules in accordance with the provisions of §29A-3-1 et seq. of this code to implement the provisions of this article;

(20) Sue and be sued in its official name as an agency of this state;

(21) Approve a nursing school;

(22) Establish a nurse health program;

(23) Implement the provisions of the enhanced nurse licensure compact in accordance with §30-7B-1 et seq. of this code;

(24) Coordinate with and assist the Center for Nursing in accordance with §30-7B-1 et seq. of this code; and

(25) Confer with the Attorney General or his or her assistant in connection with legal matters and questions.

(b) All fees and other moneys collected by the board pursuant to the provisions of this article shall be kept in a separate fund and expended solely for the purpose of this article. No part of this special fund shall revert to the General Funds of this state. The compensation provided by this article and all expenses incurred under this article shall be paid from this special fund. No compensation or expense incurred under this article shall be a charge against the General Funds of this state.

§30-7-5. Schools of nursing.

(a) A nursing program is determined to be board approved if the program is accredited by a national nursing accrediting agency recognized by the United States Department of Education. The accreditation is considered board approved and is exempt from board rules that require ongoing approval if the school or program maintains this accreditation.

(b) By July 1, 2022, all nursing programs shall be accredited by a national accrediting agency recognized by the United States Department of Education. A program created after July 1, 2018, shall have 5 years to obtain accreditation by an accrediting agency recognized by the United States Department of Education.

(c) The board may require information concerning the nursing program to be reported to the board by legislative rule. The requested information shall be consistent with information already being collected by the schools which is required to maintain the program’s accreditation.

(d) The board shall approve a new nursing program until the program is accredited by a national nursing accrediting agency recognized by the United States Department of Education.

§30-7-6. License to practice registered professional nursing.

(a) The board may issue a license to practice registered nursing to an applicant who meets the following requirements:

(1) Is at least 18 years of age;

(2) Has completed an approved four-year high school course of study or the equivalent thereof, as determined by the appropriate educational agency;

(3) Has completed a nursing education program;

(4) Has passed an examination approved by the board;

(5) Has paid the application fee specified by rule;

(6) Has completed a criminal background check, as required by §30-1D-1 et seq. of this code; and

(7) Is not an alcohol or drug abuser, as these terms are defined in §27-1A-11 of this code, unless an applicant in an active recovery process, which may be evidenced by participation in a Nurse Health Program, structured aftercare, or a 12-step program or other similar group or process, may be considered.

(b) A license to practice registered professional nursing issued by the board shall for all purposes be considered a license issued under this section: Provided, That a person holding a license shall renew the license.

§30-7-6a. Special volunteer registered professional nurse license; civil immunity for voluntary services rendered to indigents.

(a) There is established a special volunteer license for registered professional nurses retired or retiring from the active practice of nursing who wish to donate their expertise for the care and treatment of indigent and needy patients in the clinical setting of clinics organized, in whole or in part, for the delivery of health care services without charge. The special volunteer registered professional nurse license shall be issued by the West Virginia Board of Examiners for registered professional nurses to registered professional nurses licensed or otherwise eligible for 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 the remainder of the licensing period, and renewed consistent with the boards other licensing requirements. The board shall develop application forms for the special license provided in this subsection which shall contain the registered professional nurse’s acknowledgment that:

(1) The registered professional nurse’s practice under the special volunteer registered professional nurse license will be exclusively devoted to providing nursing care to needy and indigent persons in West Virginia;

(2) The registered professional nurse will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation but may donate to the clinic the proceeds of any reimbursement, for any nursing services rendered under the special volunteer registered professional nurse license;

(3) The registered professional nurse will supply any supporting documentation that the board may reasonably require; and

(4) The registered professional nurse agrees to continue to participate in continuing education as required by the board for the special volunteer registered professional nurse license.

(b) Any person engaged in the active practice of nursing in this state whose license is in good standing may donate their expertise for the care and treatment of indigent and needy patients pursuant to an arrangement with a clinic organized, in whole or in part, for the delivery of health care services without charge to the patient. Services rendered pursuant to an arrangement may be performed in either the office of the registered professional nurse or the clinical setting.

(c) Any registered professional nurse who renders nursing 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 registered professional nurse license authorized under subsection (a) of this section or pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) 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 nursing service at the clinic unless the act or omission was the result of the registered professional nurse’s gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there must be a written agreement between the registered professional nurse and the clinic pursuant to which the registered professional nurse will provide voluntary uncompensated nursing services under the control of the clinic to patients of the clinic before the rendering of any services by the registered professional nurse 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.

(d) 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 a registered professional nurse rendering voluntary nursing services at or for the clinic under a special volunteer registered professional nurse license authorized under subsection (a) of this section or who renders such care and treatment pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) of this section.

(e) For purposes of this section, "otherwise eligible for licensure" means the satisfaction of all the requirements for licensure as listed in section six of this article and in the legislative rules promulgated thereunder, except the fee requirements of that section and of the legislative rules promulgated by the board relating to fees.

(f) Nothing in this section may be construed as requiring the board to issue a special volunteer registered professional nurse license to any registered professional nurse whose license is or has been subject to any disciplinary action or to any registered professional nurse who has surrendered his or her license or caused such license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her license, or who has elected to place a registered professional nurse license in inactive status in lieu of having a complaint initiated or other action taken against his or her license, or who has been denied a registered professional nurse license.

(g) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any registered professional nurse 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 a registered professional nurse who holds a special volunteer registered professional nurse license or who renders such care and treatment pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) of this section.

§30-7-6b. Special volunteer license; civil immunity for voluntary services rendered to indigents.

(a) There is established a special volunteer license for advanced practice registered nurses retired or retiring from the active practice of nursing who wish to donate their expertise for the care and treatment of indigent and needy patients in the clinical setting of clinics organized, in whole or in part, for the delivery of health care services without charge. The special volunteer advanced practice registered nurse license shall be issued by the West Virginia Board of Examiners for Registered professional nurses to advanced practice registered nurses licensed or otherwise eligible for licensure pursuant to this article and the rules promulgated hereunder without the payment of an application fee, license fee or renewal fee, shall be issued for the remainder of the licensing period, and renewed consistent with the boards other licensing requirements. The board shall develop application forms for the special license provided in this subsection which shall contain the advanced practice registered nurse’s acknowledgment that:

(1) The advanced practice registered nurse’s practice pursuant to the special volunteer advanced practice registered nurses license will be exclusively devoted to providing nursing care to needy and indigent persons in West Virginia;

(2) The advanced practice registered nurse will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation but may donate to the clinic the proceeds of any reimbursement, for any nursing services rendered pursuant to the special volunteer advanced practice registered nurse license;

(3) The advanced practice registered nurse will supply any supporting documentation that the board may reasonably require; and

(4) The advanced practice registered nurse agrees to continue to participate in continuing education as required by the board for the special volunteer advanced practice registered nurse license.

(b) Any person licensed as an advanced practice registered nurse in this state whose license is in good standing may donate their expertise for the care and treatment of indigent and needy patients pursuant to an arrangement with a clinic organized, in whole or in part, for the delivery of health care services without charge to the patient. Services rendered pursuant to an arrangement may be performed in either the office of the advanced practice registered nurses or the clinical setting.

(c) A advanced practice registered nurse and his or her collaborating physician who render nursing service to indigent and needy patients of a clinic organized, in whole or in part, for the delivery of health care services without charge pursuant to a special volunteer advanced practice registered nurse license authorized pursuant to subsection (a) of this section or pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) 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 nursing service at the clinic unless the act or omission was the result of the advanced practice registered nurse’s and his or her collaborating physician’s gross negligence or willful misconduct. For the immunity pursuant to this subsection to apply, there must be a written agreement between the licensed practical nurse and the clinic pursuant to which the advanced practice registered nurse will provide voluntary uncompensated nursing services under the control of the clinic to patients of the clinic before the rendering of any services by the advanced practice registered nurse 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.

(d) 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 a advanced practice registered nurse rendering voluntary nursing services at or for the clinic pursuant to a special volunteer advanced practice registered nurse license authorized pursuant to subsection (a) of this section or who renders such care and treatment pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) of this section.

(e) For purposes of this section, “otherwise eligible for licensure” means the satisfaction of all the requirements for licensure as listed in section six of this article and in the rules promulgated thereunder, except the fee requirements of that section and of the legislative rules promulgated by the board relating to fees.

(f) Nothing in this section may be construed as requiring the board to issue a special volunteer advanced practice registered nurse license to any advanced practice registered nurse whose license is or has been subject to any disciplinary action or to any advanced practice registered nurse who has surrendered his or her license or caused such license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her license, or who has elected to place a advanced practice registered nurse license in inactive status in lieu of having a complaint initiated or other action taken against his or her license, or who has been denied a advanced practice registered nurse license.

(g) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any advanced practice registered nurse covered pursuant to 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 a advanced practice registered nurse who holds a special volunteer advanced practice registered nurse license or who renders such care and treatment pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) of this section.

§30-7-7. License to practice advanced practice registered nursing.

(a) The board may issue an advanced practice registered nurse license to an applicant who meets the following requirements:

(1) Is at least 18 years of age;

(2) Is currently certified by a national certification organization, approved by the board, in one or more of the following nationally recognized advance practice registered nursing roles: Certified registered nurse anesthetist, certified nurse-midwife, clinical nurse specialist, or certified nurse practitioner;

(3) Has paid the application fee specified by legislative rule; and

(4) Is not an alcohol or drug abuser, as these terms are defined in §27-1A-11 of this code, unless an applicant in an active recovery process, which may, in the discretion of the board, be evidenced by participation in a Nurse Health Program, structured aftercare, or a 12-step program or other similar group or process, may be considered.

(b) An advanced practice registered nurse license issued by the board and in good standing on the effective date of the amendments to this section shall for all purposes be considered an advanced practice registered nurse license issued under this section: Provided, That a person holding an advanced practice registered nurse license shall renew the license.

(c) An applicant, who is licensed in another jurisdiction as an advanced practice registered nurse, is eligible to apply for licensure.

(d) By virtue of being a licensed advanced practice registered nurse that person is also licensed as a registered professional nurse. The board may not charge an additional fee for registered professional nurse license

§30-7-8. License renewal.

(a) Persons regulated by this article shall annually or biennially, renew his or her board authorization by completing a form prescribed by the board and submitting any other information required by the board.

(b) The board shall charge a fee for each renewal of a board authorization and shall charge a late fee for any renewal not paid by the due date.

(c) The board may deny an application for renewal for any reason which would justify the denial of an original application.

§30-7-8a. Temporary permits.

The board may issue a temporary permit to a person applying for a license under this article.

§30-7-9. Contents of license or certificate.

Each license or certificate issued by the board shall bear a serial number, the full name of the applicant, the date of expiration of any such license and the date of issuance of any such certificate, the seal of the board, and shall be signed by the executive secretary of the board.

§30-7-10. Use of titles.

Any person licensed pursuant to this article may use the title "registered nurse" and the abbreviation "R.N." or the term "nurse". Except as otherwise provided in article seven-a of this chapter, no other person may assume a title or use abbreviations or any other words, letters, figures, signs, or devices to indicate that the person using the same is a registered professional nurse.

§30-7-11. Denial, revocation, or suspension of license; grounds for discipline.

(a) The board shall have the power to deny, revoke, or suspend any license to practice registered professional nursing issued or applied for in accordance with the provisions of this article, or to otherwise discipline a licensee or applicant upon proof that he or she:

(1) Is or was guilty of fraud or deceit in procuring or attempting to procure a license to practice registered professional nursing; or

(2) Has been convicted of a felony; or

(3) Is unfit or incompetent by reason of negligence, habits, or other causes; or

(4) Is habitually intemperate or is addicted to the use of habit-forming drugs; or

(5) Is mentally incompetent; or

(6) Is guilty of conduct derogatory to the morals or standing of the profession of registered nursing; or

(7) Is practicing or attempting to practice registered professional nursing without a license or reregistration; or

(8) Has demonstrated abnormal prescribing or dispensing practices pursuant to §30-3A-4 of this code; or

(9) Has willfully or repeatedly violated any of the provisions of this article.

 (b) An advanced practice registered nurse licensed under this article may not be disciplined for providing expedited partner therapy in accordance with §16-4F-1 et seq. of this code.

§30-7-11a. Voluntary agreements relating to alcohol or chemical dependency; confidentiality.

(a) In order to encourage voluntary participation in monitored alcohol, chemical dependency or major mental illness programs and in recognition of the fact that major mental illness, alcoholism and chemical dependency are illnesses, any person who holds a license to practice registered nursing in this state or who is applying for a license to practice registered nursing in this state may enter into a voluntary agreement with a nurse health program as defined in section one, article seven-e of this chapter. The agreement between the licensee or applicant and the nurse health program shall include a jointly agreed upon treatment program and mandatory conditions and procedures to monitor compliance with the program of recovery.

(b) Any voluntary agreement entered into pursuant to this section shall not be considered a disciplinary action or order by the board, shall not be disclosed to the board and shall not be public information if:

(1) Such voluntary agreement is the result of the licensee or applicant self enrolling or voluntarily participating in the board- designated nurse health program;

(2) The board has not received nor filed any written complaints regarding said licensee or applicant relating to an alcohol, chemical dependency or major mental illness affecting the care and treatment of patients; and

(3) The licensee or applicant is in compliance with the voluntary treatment program and the conditions and procedures to monitor compliance.

(c) Pursuant to this section, if any licensee or applicant enters into a voluntary agreement with a nurse health program as defined in section one, article seven-e of this chapter, and then fails to comply with or fulfill the terms of said agreement, the nurse health program shall report the noncompliance to the board within twenty-four hours. The board may initiate disciplinary proceedings pursuant to section eleven of this article or may permit continued participation in the nurse health program or both.

(d) If the board has not instituted any disciplinary proceeding as provided for in this article, any information received, maintained or developed by the board relating to the alcohol or chemical dependency impairment of any licensee or applicant and any voluntary agreement made pursuant to this section shall be confidential and not available for public information, discovery or court subpoena, nor for introduction into evidence in any medical professional liability action or other action for damages arising out of the provision of or failure to provide health care services.

(e) Notwithstanding any of the foregoing provisions, the board may cooperate with and provide documentation of any voluntary agreement entered into pursuant to this section to licensing boards in other jurisdictions of which the board has become aware and may be appropriate.

§30-7-12. Exceptions.

This article shall not be construed to prohibit:

(a) The furnishing of nursing assistance in an emergency; or

(b) The practice of nursing incidental to a program of study by students enrolled in a nursing education program accredited by the board; or

(c) The practice of any legally qualified nurse of another state who is employed by the United States or any bureau, division or agency thereof, while in the discharge of his or her official duties.

§30-7-13. Prohibitions and penalties.

It shall be a misdemeanor for any person, including any corporation or association, to:

(a) Sell or fraudulently obtain or furnish any nursing diploma, license or record or aid or abet therein; or

(b) Practice registered professional nursing under cover of any diploma, license or record illegally or fraudulently obtained or signed or issued or under fraudulent representation; or

(c) Practice registered professional nursing unless duly licensed to do so under the provisions of this article; or

(d) Use in connection with his or her name any designation tending to imply that he or she is licensed to practice registered professional nursing unless duly licensed so to practice under the provisions of this article; or

(e) Practice registered professional nursing during the time his or her license issued under the provisions of this article shall be suspended or revoked; or

(f) Conduct a nursing education program for the preparation of registered professional nursing practitioners unless such program has been accredited by the board; or

(g) Otherwise violate any provisions of this article.

Upon conviction, each such misdemeanor shall be punishable by a fine of not less than twenty-five nor more than $250.

§30-7-14. Injunction or other relief against unlawful acts.

The practice of registered professional nursing by any person who has not been licensed under the provisions of this article, or whose license has expired or has been suspended or revoked, is hereby declared to be inimical to the public health and welfare and to be a public nuisance. Whenever in the judgment of the board any person has engaged in, is engaging in or is about to engage in the practice of registered professional nursing without holding a valid license hereunder, or has engaged, is engaging or is about to engage in any act which constitutes, or will constitute, a violation of this article, the board may make application to the appropriate court having equity jurisdiction for an order enjoining such practices or acts, and upon a showing that such person has engaged, is engaging or is about to engage, in any such practices or acts, an injunction, restraining order, or such other order as the court may deem appropriate shall be entered by the court.

The remedy provided in this section shall be in addition to, and not in lieu of, all other penalties and remedies provided in this article.

§30-7-15. Administration of anesthetics.

In any case where it is lawful for a duly licensed physician or dentist practicing medicine or dentistry under the laws of this state to administer anesthetics, such anesthetics may lawfully be given and administered by any person (a) who has been licensed to practice registered professional nursing under this article, and (b) who holds a diploma or certificate evidencing his or her successful completion of the educational program of a school of anesthesia duly accredited by the American association of nurse anesthetists: Provided, That such anesthesia is administered by such person in the presence and under the supervision of such physician or dentist.

§30-7-15a. Prescriptive authority for prescription drugs.

(a) An advanced practice registered nurse may not prescribe a Schedule I controlled substance as provided in §60A-2-204 of this code.

(b) An advanced practice registered nurse may prescribe up to a three-day supply of a Schedule II narcotic as provided in §60A-2-206 of this code: Provided, That an advanced practice registered nurse who is participating in a clinical trial, with institutional review board approval, for the rural expansion of medication-assisted treatment for opioid use disorder may dispense for the time frame of the clinical trial, after registering with the Board of Pharmacy: Provided, however, That this exemption only permits one program to participate once in CTN-0102-XR, which is also the same program as provided for in §60A-9-4 of this code.

(c) There are no other limitations on the prescribing authority of an advanced practice registered nurse, except as provided in §16-54-1 et seq. of this code.

§30-7-15b. Eligibility for prescriptive authority; application; fee; collaborative relationships and agreements.

(a) An advanced practice registered nurse shall be eligible to apply for authorization to prescribe drugs pursuant to section fifteen-a of this article after satisfying the following requirements:

(1) Be licensed and certified in West Virginia as an advanced practice registered nurse;

(2) Be at least eighteen years of age;

(3) Have completed forty-five contact hours of education in pharmacology and clinical management of drug therapy under a program approved by the board, fifteen hours of which shall have been completed within the two-year period immediately prior to entering into a prerequisite collaborative relationship;

(4) Provide the board with evidence that he or she is a person of good moral character and not addicted to alcohol or the use of controlled substances;

(5) Does not have his or her advanced practice registered nursing license, certification or registration in any jurisdiction suspended, limited or revoked; and

(6) Submit a completed, notarized application to the board, accompanied by a fee as established by the board by rule.

(b) The board shall authorize an applicant to prescribe prescription drugs under the terms of a collaborative agreement and in accordance with section fifteen-a of this article and applicable legislative rules if the applicant has met the prerequisites of subsection (a) of this section and the following additional prerequisites are satisfied:

(1) The board is satisfied that the collaborating physician is licensed in good standing;

(2) The collaborative agreement is sufficient in form;

(3) The applicant has completed the education requirements; and

(4) The applicant has submitted a completed application on forms developed by the board and paid an application fee established by the board in legislative rule.

(c) A collaborative agreement for a collaborative relationship for prescriptive practice between a physician and an advanced practice registered nurse shall be set forth in writing and include, but not be limited to, the following:

(1) Mutually agreed upon written guidelines or protocols for prescriptive authority as it applies to the advanced practice registered nurse’s clinical practice;

(2) Statements describing the individual and shared responsibilities of the advanced practice registered nurse and the collaborating physician;

(3) Periodic and joint evaluation of prescriptive practice; and

(4) Periodic joint review and updating of the written guidelines or protocols.

(d) Verification of a collaborative agreement shall be filed with the board by the advanced practice registered nurse with documentation of completion of the education requirements described in subsection (a) of this section. The board shall forward a copy of the verified agreement to the board through which the collaborative physician is licensed.

(e) The board shall, upon application, authorize an advanced practice registered nurse to prescribe prescription drugs in accordance with section fifteen-a of this article without the further requirement of a collaborative agreement if the applicant has satisfied the following prerequisites:

(1) Has practiced at least three years in a duly-documented collaborative relationship with granted prescriptive authority;

(2) Licensed in good standing with the board; and

(3) Has submitted a completed application on forms developed by the board and paid an application fee established by the board in legislative rule.

(f) Notwithstanding the provisions of subsection (e) of this section, the board may require an advanced practice registered nurse to practice in a collaborative agreement if the board determines, by order arising out of the board’s complaint process, that a collaborative relationship is necessary for the rehabilitation of a licensee or for protection of the public.

§30-7-15c. Form of prescriptions; termination of authority; renewal; notification of termination of authority.

(a) Prescriptions authorized by an advanced practice registered nurse must comply with all applicable state and federal laws; must be signed by the prescriber with the initials "A.P.R.N." or the designated certification title of the prescriber; and must include the prescriber's identification number assigned by the board or the prescriber's national provider identifier assigned by the National Provider System pursuant to 45 C. F. R. §162.408.

(b) Prescriptive authorization shall be terminated if the advanced practice registered nurse has:

(1) Not maintained current authorization as an advanced practice registered nurse; or

(2) Prescribed outside the advanced practice registered nurse's scope of practice or has prescribed drugs for other than therapeutic purposes; or

(3) Has not filed verification of a collaborative agreement with the board if such an agreement is required.

(c) Prescriptive authority for an advanced practice registered nurse must be renewed biennially. Documentation of eight contact hours of pharmacology during the previous two years must be submitted at the time of renewal.

(d) The board shall notify the Board of Pharmacy within twenty-four hours after termination of, or change in, an advanced practice registered nurse's prescriptive authority.

§30-7-15d. Advanced practice registered nurse signatory authority.

(a) An advanced practice registered nurse may provide an authorized signature, certification, stamp, verification, affidavit or endorsement on documents within the scope of their practice, including, but not limited to, the following documents:

(1) Death certificates: Provided, That the advanced practice registered nurse has received training from the board on the completion of death certificates;

(2) “Physician orders for life sustaining treatment,” “physician orders for scope of treatment” and “do not resuscitate” forms;

(3) Handicap hunting certificates; and

(4) Utility company forms requiring maintenance of utilities regardless of ability to pay.

(b) An advanced practice registered nurse may not sign a certificate of merit for a medical malpractice claim against a physician.

§30-7-15e. Joint Advisory Council on Limited Prescriptive Authority.

[Repealed.]

§30-7-16. General law applicable.

Except to the extent that the provisions of this article may be inconsistent therewith, the board shall conform to the requirements prescribed in article one of this chapter.

§30-7-17.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§30-7-18. Nursing shortage study commission.

(a) A nursing shortage study commission shall be created by the board. The board shall appoint 9 members to the commission. The board shall appoint:

(1) One individual who is on the board;

(2) Two individuals that are employed as registered professional nurses in a hospital and who work primarily providing direct patient care;

(3) Two registered professional nurses who work as long-term care nurses, one of whom works in a nursing home and one of whom works for a home health agency, both of whom work primarily providing direct patient care;

(4) One nursing administrator;

(5) The Chancellor of the Higher Education Policy Commission;

(6) The West Virginia Nurses’ Association President; and

(7) The Executive Director of the Center for Nursing.

(b) Members of the commission are not entitled to compensation for services performed as members, but are entitled to reimbursement for all reasonable and necessary expenses actually incurred in the performance of their duties. Five of the appointed members is a quorum for the purpose of conducting business. The board shall meet at least monthly. The board shall designate a chair, who is not a public official. The commission shall conduct all meetings in accordance with the open meeting law pursuant to §6-9A-1 et seq. of this code.

(c) The commission shall:

(1) Study the nursing shortage in West Virginia and ways to alleviate it, including, but not limited to:

(A) Evaluating mechanisms currently available in the state and elsewhere intended to enhance education, recruitment, and retention of nurses in the workforce and to improve quality of care;

(B) Assessing the impact of shortages in nursing personnel on access to, and the delivery of, quality patient care;

(C) Developing recommendations on strategies to reverse the growing shortage of qualified nursing personnel in the state, including:

(i) Determining what changes are needed to existing programs, current scholarship programs and funding mechanisms to better reflect and accommodate the changing health care delivery environment and to improve quality of care to meet the needs of patients;

(ii) Facilitating career advancement within nursing;

(iii) Identifying more accurately specific shortage areas in a more timely manner;

(iv) Attracting middle and high school students into nursing as a career; and

(v) Projecting a more positive and professional image of nursing.

(2) Report its findings and recommendation to the Joint Committee on Health by December 1, 2022.

(3) Terminate January 1, 2023.

§30-7-19. Circulating registered nurses.

A registered nurse as defined in this article, qualified by education, licensed, and experienced in operating room nursing, shall be present as a circulating nurse in each operating room in a hospital, or ambulatory surgical center as defined by section one, article five-b, chapter sixteen of this code, during operative procedures.

§30-7-20. Pilot program.

[Repealed.]

§30-7A-1. Definitions.

(a) The term “practical nursing” means the performance for compensation of selected nursing acts in the care of the ill, injured, or infirm under the direction of a registered professional nurse or a licensed physician or a licensed dentist, and not requiring the substantial specialized skill, judgment and knowledge required in professional nursing.

(b) The term “practical nurse” means a person who has met all the requirements for licensure as a practical nurse and who engages in practical nursing as hereinabove defined.

(c) The term “board” as used in this article, shall mean the board of examiners for licensed practical nurses as set forth in section five of this article.

§30-7A-2. Use of titles.

(a) Any person licensed pursuant to this article may use the title "licensed practical nurse," "practical nurse" and the abbreviation "L.P.N" or the term "nurse". Except as otherwise provided in article seven of this chapter, no other person may assume such title, or use such abbreviation, or any other words, letters, figures, signs, or devices to indicate that the person using the same is a licensed practical nurse or a practical nurse.

§30-7A-3. Qualifications of applicants for license.

Except as otherwise provided in section six of this article, any person desiring to obtain a license to practice practical nursing shall submit to the board satisfactory evidence that he or she: (a) Is of good moral character; (b) has acquired at least a tenth grade education or its equivalent; (c) has completed a course of study in an accredited school for practical nurses as defined by the board and holds a diploma therefrom; and (d) has completed such other general educational requirements as may be prescribed by the board.

§30-7A-4. Application for license or registration; examination fee.

The provisions of section six, article one, chapter thirty of the code shall apply to this article, except that an applicant for license as a practical nurse shall pay such fee as the board shall prescribe.

§30-7A-5. Board of examiners; powers; duties.

The Governor shall appoint, by and with the advice and consent of the Senate, seven citizens of the State of West Virginia who shall constitute the “West Virginia state board of examiners for licensed practical nurses” and they shall be charged with the duty of administering the provisions of this article. Of the seven members so appointed two shall be licensed practical nurses, one of whom shall be a graduate of an approved school of practical nursing, and both of whom shall have had not less than five years' experience as licensed practical nurses, two shall be registered professional nurses, at least one of whom shall be experienced in practical nurse education; one shall be a doctor of medicine; one shall be a hospital administrator actively engaged as such in this state and one shall be a vocational educator. Such appointments shall be for terms of five years each, except that in the initial appointments, one licensed practical nurse and one registered professional nurse shall be appointed for a term of five years, one licensed practical nurse and one registered professional nurse shall be appointed for a term of four years, the doctor of medicine shall be appointed for a term of three years, the hospital administrator shall be appointed for a term of two years and the vocational educator shall be appointed for a term of one year. The practical nurses so to be appointed, initially and subsequently, shall be selected by the Governor from a list to be submitted to him by the Licensed Practical Nurses' Association of West Virginia, Inc., which list shall contain the names of at least two licensed practical nurses for each board member so to be appointed, who shall have been licensed by examination and who shall have not less than five years' experience as a licensed practical nurse. The doctor of medicine so appointed shall be selected by the Governor from two nominations submitted to him by the West Virginia state medical association; each registered professional nurse so appointed shall be selected by the Governor from two nominations submitted to him by the West Virginia Nurses Association, Inc.; the hospital administrator shall be appointed by the Governor from two nominations submitted to him by the West Virginia hospital association; and the vocational educator shall be appointed by the Governor from two nominations submitted to him by the state Board of Education. Any member of the board may be eligible for reappointment, but no member shall serve more than two successive terms. The board is hereby authorized to appoint and employ a qualified person to perform the duties of executive secretary and to act as educational advisor to the board. Such secretary shall act under the direction of the board. The board shall furnish the secretary a headquarters and shall provide such office equipment and clerical assistance as the duties of the office may require. The board shall have power to appoint such nurses, deputies, clerks, assistants, inspectors and employees as shall be necessary for the proper exercise of the powers and duties of the board. The compensation and expenses of the members of the board and its appointees and employees shall be paid out of such funds as are allocated to the board in its annual budget. The secretary shall keep the records of proceedings of the board, and shall keep a registry of the names and addresses of all practical nurses registered under this article, which registry shall be a public record. Said board shall hold not less than two regular meetings each year and such additional meetings at such times and places as the board may determine. The board is authorized to adopt and, from time to time, to revise such rules and regulations not inconsistent with this article, as may be necessary to enable it to carry into effect the provisions hereof. The board shall prescribe curricula and standards for schools and courses preparing persons for licensure under this article. It shall survey such schools and courses at such times as it may deem necessary. It shall survey and accredit such schools, clinical practice areas and courses as meet the requirements of this article and of the board. It shall examine, license and renew the license of duly qualified applicants.

§30-7A-6. Examination and licensure of practical nurses; present practitioners.

The applicant, except as hereinafter provided, shall be required to pass a written examination in such subjects as the board shall determine. Each written examination may be supplemented by such oral or practical examination as the board may deem necessary. The board shall determine the times and places for the examination. Notices of examination shall be sent by mail to each person known by the secretary to be an applicant for an examination or registration at least thirty days previous to any such scheduled examination. Upon the applicant's successful completion of an appropriate examination as prescribed by the board and satisfaction of the other requirements of this article, the board shall issue to the applicant a license to practice practical nursing. The board shall issue such license by endorsement to any applicant who has been duly licensed or registered as such, or to a person entitled to perform similar services under a different title, in another state, territory or foreign country if, in the opinion of the board, the applicant meets the other requirements for licensed practical nurses in this state. On or before June 30, 1968, any practical nurse who exhibits proof, satisfactory to the board, that he or she has been engaged in practical nursing in this state for a period of three years and who satisfactorily completes an appropriate examination as prescribed by the board shall be issued a license by waiver by said board, which shall be so designated on its face.

Any person obtaining a license by waiver who has completed extension courses equal in theory to those for the graduate practical nurses, as determined by the board, may at any time thereafter take the examination prescribed by the board for graduate practical nurses and obtain a license without the designation of "waiver" thereon.

§30-7A-6a. Special volunteer license; civil immunity for voluntary services rendered to indigents.

(a) There is established a special volunteer license for licensed practical nurses retired or retiring from the active practice of nursing who wish to donate their expertise for the care and treatment of indigent and needy patients in the clinical setting of clinics organized, in whole or in part, for the delivery of health care services without charge. The special volunteer license provided by this section shall be issued by the West Virginia Board of Examiners for licensed practical nurses to licensed practical nurses licensed or otherwise eligible for licensure pursuant to this article and the rules promulgated hereunder without the payment of an application fee, license fee or renewal fee, and the initial license shall be issued for the remainder of the licensing period, and renewed consistent with the boards other licensing requirements. The board shall develop application forms for the special license provided in this subsection which shall contain the licensed practical nurse’s acknowledgment that:

(1) The licensed practical nurse’s practice pursuant to the special volunteer licensed practical nurse license will be exclusively devoted to providing nursing care to needy and indigent persons in West Virginia;

(2) The licensed practical nurse will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation but may donate to the clinic the proceeds of any reimbursement, for any nursing services rendered pursuant to the special volunteer licensed practical nurse license;

(3) The licensed practical nurse will supply any supporting documentation that the board may reasonably require; and

(4) The licensed practical nurse agrees to continue to participate in continuing education as required by the board for the special volunteer licensed practical nurse license.

(b) Any person engaged in the active practice of licensed practical nursing in this state whose license is in good standing may donate their expertise for the care and treatment of indigent and needy patients pursuant to an arrangement with a clinic organized, in whole or in part, for the delivery of health care services without charge to the patient. Services rendered pursuant to an arrangement may be performed in either the office of the licensed practical nurse or the clinical setting.

(c) Any licensed practical nurse who renders nursing service to indigent and needy patients of a clinic organized, in whole or in part, for the delivery of health care services without charge pursuant to a special volunteer licensed practical nurse license authorized pursuant to subsection (a) of this section or pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) 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 nursing service at the clinic unless the act or omission was the result of the licensed practical nurse’s gross negligence or willful misconduct. For the immunity pursuant to this subsection to apply, there must be a written agreement between the licensed practical nurse and the clinic pursuant to which the licensed practical nurse will provide voluntary uncompensated nursing services under the control of the clinic to patients of the clinic before the rendering of any services by the licensed practical nurse 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.

(d) Notwithstanding the provisions of subsection (c) 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 a licensed practical nurse rendering voluntary nursing services at or for the clinic pursuant to a special volunteer licensed practical nurse license authorized pursuant to subsection (a) of this section or who renders such care and treatment pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) of this section.

(e) For purposes of this section, “otherwise eligible for licensure” means the satisfaction of all the requirements for licensure as listed in section six of this article and in the rules promulgated thereunder, except the fee requirements of that section and of the legislative rules promulgated by the board relating to fees.

(f) Nothing in this section may be construed as requiring the board to issue a special volunteer licensed practical nurse license to any licensed practical nurse whose license is or has been subject to any disciplinary action or to any licensed practical nurse who has surrendered his or her license or caused such license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her license, or who has elected to place a licensed practical nurse license in inactive status in lieu of having a complaint initiated or other action taken against his or her license, or who has been denied a licensed practical nurse license.

(g) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any licensed practical nurse covered pursuant to 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 a licensed practical nurse who holds a special volunteer licensed practical nurse license or who renders such care and treatment pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) of this section.

§30-7A-7. Renewal or reinstatement of license.

The license of every person licensed under the provisions of this article shall expire on June 30, next following the date of license. In order for such license to be renewed, the licensee shall comply with such rules and regulations of the board as are applicable to renewals. The renewal fee for all licenses shall be $5, subject to change by the board. Upon receipt of the renewal fee the board shall issue to the licensee a certificate of renewal for the current year, beginning July first and expiring June thirtieth of the following year. Such certificate shall render the holder thereof a legal practitioner for the period stated on the certificate of renewal. Any licensee who allows his or her license to lapse by failing to renew the license as provided above may be reinstated by the board on satisfactory explanation for such failure to renew his or her license and on payment of a reinstatement fee of $5, subject to change by the board, in addition to the renewal fee hereinbefore set out. Any person practicing practical nursing during the time his or her license has lapsed shall be considered an illegal practitioner and shall be subject to the penalties provided for violation of this article. A person licensed under the provisions of this article desiring to retire from practice temporarily shall give written notice of such desire to the board. Upon receipt of such notice the board shall place the name of such person upon the nonpracticing list. While remaining on this list the person shall not be subject to the payment of any renewal fees and shall not practice as a licensed practical nurse in the state. When such person desires to resume practice, application for renewal of license and payment of the renewal fee for the current year shall be made to the board.

§30-7A-7a. Supplemental fees to fund Center for Nursing; emergency rules.

[Repealed.]

§30-7A-8. Schools of practical nursing.

 (a) A practical nursing program is determined to be board approved if approved by the board, or the program is accredited by a national accrediting agency recognized by the United States Department of Education. The accreditation is considered board approved and is exempt from board rules that require ongoing approval if the school or program maintains this accreditation.

(b) By July 1, 2022, all practical nursing programs shall be accredited by a national accrediting agency recognized by the United States Department of Education. A program created after July 1, 2018, shall have 5 years to obtain accreditation by an accrediting agency recognized by the United States Department of Education.

(c) The board may require information concerning the practical nursing program to be reported to the board by legislative rule. The requested information shall be consistent with information already being collected by the schools which is required to maintain the program’s accreditation.

(d) The board shall approve a new practical nursing program until the program is accredited by a national accrediting agency recognized by the United States Department of Education.

§30-7A-9. Construction of article; acts not prohibited.

The provisions of this article shall not be construed as prohibiting:

(1) The care of a sick, disabled, injured, crippled or infirm person by a member or members of such person's family, or by close relatives, or by domestic servants, housekeepers or household aides thereof, whether employed regularly or because of emergency circumstances due to illness or other disabilities.

(2) The work and services of auxiliary hospital personnel, such as nursing aides, maids, orderlies, technicians, volunteer workers and other like hospital employees.

(3) Practical nursing by students enrolled in accredited schools for practical nursing incidental to their course of study.

(4) Practice of nursing in this state by any legally qualified practical nurse of another state or country for a period not to exceed six months or whose engagement requires such practical nurse to accompany and care for a patient temporarily residing in this state during the period of such engagement.

(5) Nursing services rendered by a graduate of an approved school of practical nursing working under qualified supervision during the period between completion of his or her course of nursing education and notification of the results of the first licensing examination following graduation. In cases of hardship and upon petition to the board, the board may grant an extension of such period to such graduate.

§30-7A-10. Disciplinary proceeding; grounds for discipline.

The board shall have the right, in accordance with rules and regulations promulgated under the provisions of article three, chapter twenty-nine-a of this code, to refuse to admit an applicant for the licensure examination for the hereinafter stated reasons, and also the board shall have the power to revoke or suspend any license to practice practical nursing issued by the board in accordance with the provisions of this article, or to otherwise discipline a licensee upon satisfactory proof that the person: (1) Is guilty of fraud or deceit in procuring or attempting to procure a license to practice practical nursing; or (2) is convicted of a felony; or (3) is habitually intemperate or is addicted to the use of habit-forming drugs; or (4) is mentally incompetent; or (5) is guilty of professional misconduct as defined by the board; or (6) who practices or attempts to practice without a license or who willfully or repeatedly violates any of the provisions of this article.

§30-7A-11. Prohibited acts; penalties.

It shall be a misdemeanor for any person, firm, corporation or association of persons to: (1) Sell or fraudulently obtain or furnish any nursing diploma, license or record or aid or abet therein; or (2) practice practical nursing unless duly licensed to do so under the provisions of this article; or (3) use in connection with his or her name any designation tending to imply that he or she is a licensed practical nurse unless duly licensed so to practice under the provisions of this article; or (4) practice practical nursing during the time his or her license issued under the provisions of this article shall be suspended or revoked; or (5) conduct a school of practical nursing or a course for training of practical nurses unless the school or course has been accredited by the board; or (6) otherwise violate any provision of this article.

Any person convicted of any such misdemeanor shall be punishable by a fine of not less than twenty-five nor more than $100.

§30-7A-12.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§30-7B-1. Definitions.

[Repealed.]

§30-7B-2. West Virginia Center for Nursing.

[Repealed.]

§30-7B-3. Center’s powers and duties.

[Repealed.]

§30-7B-4. Board of directors.

[Repealed.]

§30-7B-5. Powers and duties of the board of directors.

[Repealed.]

§30-7B-6. Expense reimbursement.

[Repealed.]

§30-7B-7. Reports.

[Repealed.]

§30-7B-8.

Repealed.

Acts, 2014 Reg. Sess., Ch. 137.

§30-7B-9.

Repealed.

Acts, 2014 Reg. Sess., Ch. 137.

§30-7B-10.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§30-7C-1. Definitions.

As used in this article:

(1) "Approved dialysis technician training program" means any board approved program used to train dialysis technicians including, but not limited to, a Board approved dialysis facility-sponsored training program or another state approved program.

(2) "Board" means the West Virginia Board of Examiners for Registered Professional Nurses.

(3) "Dialysis care" means performing and monitoring dialysis procedures which includes initiating and discontinuing dialysis, drawing blood, and administering medications authorized under section seven of this article.

(4) "Dialysis technician trainee" means an individual enrolled in an approved dialysis technician program.

(5) "Direct supervision" means initial and ongoing direction, procedural guidance, observation and evaluation, and the on-site presence of a registered nurse or physician.

(6) "Facility" means any entity that is certified by the Office of Health Facilities Licensure and Certification to provide dialysis services.

(7) "West Virginia dialysis technician or dialysis technician" means an individual certified by the board who has successfully completed an approved dialysis technician training program and who has achieved national certification as a dialysis technician, or an individual who meets the requirements set forth in subsection (b), section three of this article.

§30-7C-2. Authority to delegate care; dialysis care by trainees in approved program.

(a) A registered professional nurse licensed under the provisions of article seven of this chapter may delegate dialysis care to a dialysis technician if:

(1) The dialysis technician has completed the requirements set forth in this article and established by the board by legislative rule;

(2) The registered professional nurse considers the dialysis technician to be competent; and

(3) The dialysis technician provides the care under the direct supervision of the registered professional nurse.

(b) A registered professional nurse licensed under the provisions of article seven of this chapter may not delegate dialysis care to an individual who is listed on the nurse aide abuse registry with a substantiated finding of abuse, neglect or misappropriation of property.

(c) Nothing in this article may be construed to prohibit a dialysis technician trainee from performing dialysis care as a part of and within the scope of the clinical skills instruction segment of an approved dialysis technician training program.

§30-7C-3. Qualifications; exceptions; application form and fees.

(a) To be certified by the board as a dialysis technician, an individual shall demonstrate that he or she:

(1) Is of good moral character;

(2) Has acquired at least a high school diploma, general equivalency diploma or equivalent;

(3) Has successfully completed an approved dialysis technician training program;

(4) Has achieved national certification as a dialysis technician; and

(5) Has met such other qualifications required by the board by legislative rule.

(b) An applicant for certification shall file with the board an application as established by the board demonstrating that he or she has met the qualifications set forth in this section, and pay an application fee as established by legislative rule.

(c) (1) The board may, upon receipt of a completed application and fee in accordance with legislative rule, issue a temporary permit to practice as a dialysis technician to any applicant who has completed a board approved dialysis technician training program.

(2) A temporary permit is effective from the date of issuance until three days after the receipt by the applicant and the board of the results of the certification examination or after eighteen months whichever is sooner, unless the board revokes the temporary permit prior to its expiration.

 (3) A temporary permit may be renewed one time for an additional eighteen months from the renewal date unless the board revokes the temporary permit prior to its expiration, under the following circumstances:

(A)  The national certification has lapsed, and

(B)  A dialysis technician is required to work to qualify for recertification.

(d) A dialysis technician previously licensed under this article is continued to be licensed and is eligible to renew.  

§30-7C-4. Use of title "West Virginia dialysis technician" or "dialysis technician"; dialysis technician trainees.

(a) An individual certified by the board as a dialysis technician pursuant to the provisions of this article shal1 be known as a West Virginia dialysis technician or dialysis technician and may use the initials "D.T." after his or her name. After June 30, 2005, no other individual may use the title, abbreviation or any other words, letters, figures, signs or devices to indicate that he or she is a dialysis technician.

(b) An individual enrolled in an approved dialysis technician training program shall use the title dialysis technician trainee. A dialysis technician trainee shall adhere to the standards for dialysis technicians and is subject to disciplinary action by the board as provided in the board’s rules.

§30-7C-5. Authorized activities.

A dialysis technician is authorized to perform the following, under the direct supervision of a registered professional nurse or a licensed physician:

(1) Preparation and initiation of dialysis access sites;

(2) Initiating, delivering or discontinuing dialysis care; and

(3) Administration of the following medications only:

(A) Heparin to prime the pump, initiate treatment or for administration throughout the treatment, in an amount prescribed by a physician or other authorized practitioner. This may be done intravenously, peripherally via a fistula needle or in another clinically acceptable manner;

(B) Normal saline via the dialysis extra corporeal circuit as needed throughout the dialysis procedure; and

(C) Intradermal anesthetic in an amount prescribed by a physician or other authorized practitioner;

(4) Obtaining a blood specimen via the dialysis extra corporeal circuit or a peripheral access site;

(5) Reporting changes that arise in conjunction with dialysis care to the registered nurse or physician; and

(6) Engaging in other acts as delegated by the registered nurse or physician in order to provide dialysis care.

§30-7C-6. Approval of training programs and testing standards.

(a) The Board shall prescribe standards for approved dialysis technician training programs, and prescribe testing standards and requirements, by legislative rule.

(b) Persons and organizations providing training programs and testing services must be approved by the board.

(c) Approval may be denied or withdrawn for failure to meet the standards set out in code or rule.

§30-7C-7. Powers and duties of Board; rule-making authority.

(a) The Board may:

(1) Adopt and amend rules consistent with this article necessary to enable it to carry into effect the provisions of this article, including disciplinary rules;

(2) Prescribe standards for preparing individuals for the role of dialysis technician under this article;

(3) Provide for standards for approved dialysis technician training programs;

(4) Accredit educational programs for the preparation of dialysis technicians that meet the requirements of this article;

(5) Provide surveys of educational programs when the board considers it necessary;

(6) Approve, reapprove and prescribe standards for testing organizations and the tests offered by organizations for dialysis technicians;

(7) Deny or withdraw approval of testing organizations;

(8) Prescribe standards for dialysis technician trainees;

(9) Issue, renew or revoke temporary permits, endorsements and certifications for dialysis technicians;

(10) Deny or withdraw accreditation of approved dialysis technician training programs for failure to meet or maintain prescribed standards required by this article and by the board;

(11) Conduct hearings upon charges calling for discipline of a dialysis technician;

(12) Keep a record of all proceedings of the board; and

(13) Further regulate, as necessary, dialysis technicians: Provided, That the board is not authorized to establish staffing ratios.

(b) The Board shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of the code to:

(1) Prescribe standards for training programs;

(2) Prescribe testing standards and requirements;

(3) Prescribe requirements for persons and organizations providing training programs and testing services;

(4) Assess fees for the certification of dialysis technicians, approval of training programs, tests and providers of training programs and testing services, and other services performed by the board; and

(5) Provide for any other requirements necessary to carry out the purposes of this article.

(c) The Board may promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code for the purposes set forth in this section. Notwithstanding the provisions of section fifteen, article three, chapter twenty-nine-a of this code to the contrary, the legislative rule proposed by the board of Registered Professional Nurses entitled "Dialysis Technicians", [19CSR13] and authorized as an emergency rule by the Secretary of State on August 5, 2005, shall continue in full force and effect as an emergency rule until July 1, 2007, unless disapproved or authorized as a legislative rule, or otherwise amended by an Act of the Legislature.

§30-7C-8. Fees.

All fees and other moneys collected by the board pursuant to the provisions of this article shall be kept in a separate special fund called the Dialysis Technician Fund to be established for the board in the state Treasury and shall be used for the administration of this article. No part of this special fund reverts to the General Fund of this state. The costs and all expenses incurred under this article are to be paid from this special fund. No compensation or expense incurred under this article is a charge against the General Fund of this state.

§30-7C-9

Repealed

Acts, 2018 Reg. Sess., Ch. 181.

§30-7C-10. Disciplinary proceeding; grounds for discipline of a dialysis technician.

(a) The Board may, in accordance with rules promulgated under the provisions of article three, chapter twenty-nine-a of this code, refuse to approve a dialysis technician.

(b) The Board may deny, revoke or suspend its certification of a dialysis technician in accordance with the provisions of this article, or to otherwise impose discipline upon proof that he or she:

(1) Is or was guilty of fraud or deceit in procuring or attempting to procure approval to be a dialysis technician;

(2) Has been convicted of a felony;

(3) Is unfit or incompetent by reason of negligence, habits or other causes;

(4) Is habitually intemperate or is addicted to the use of alcohol or habit-forming drugs;

(5) Is mentally incompetent;

(6) Is guilty of conduct derogatory to the morals or standing of the practice;

(7) Is practicing or attempting to practice as a dialysis technician without Board approval; or

(8) Has willfully or repeatedly violated any of the provisions of this article.

(c) After following procedures to be determined by the board in rules, the discipline may include any of the following:

(1) Summary suspension of the right to practice or reprimand of the dialysis technician;

(2) Probation of the dialysis technician for a specified period of time, with or without limitations and conditions;

(3) Suspension of the dialysis technician for a specified period of time; or

(4) Permanent revocation of dialysis technician privileges.

(d) The Board may establish a committee that has the authority to resolve disciplinary matters through a formal consent agreement with a licensee, permitting the licensee to voluntarily agree to disciplinary action in lieu of a formal evidentiary hearing.

§30-7C-11. Prohibited acts; penalties.

(a) No individual, firm, corporation, facility or association of individuals may:

(1) Sell or fraudulently obtain or furnish any national dialysis technician certification credential or documentation of successful completion of a dialysis technician training program or aid or abet therein;

(2) Act as a dialysis technician unless authorized by the provisions of this article;

(3) Use in connection with his or her name any designation tending to imply that he or she is a dialysis technician unless authorized by the provisions of this article; or

(4) Otherwise violate any provision of this article.

(b) An individual violating a provision of subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than five hundred nor more than $1,000.

(c) It is unlawful for any individual to practice as a dialysis technician who is listed on the nurse aide abuse registry with a substantiated finding of abuse, neglect or misappropriation of property.

§30-7C-12. Judicial review; appeal to Supreme Court of Appeals.

(a) Any individual, firm, corporation, facility or association of individuals adversely affected by a decision of the board rendered after a hearing held in accordance with the provisions of this article is entitled to a judicial review of the decision. All of the pertinent provisions of section four, article five, chapter twenty-nine-a of this code apply to and govern the judicial review with like effect as if the provisions of section four of this article were set forth in this section.

(b) The judgment of the circuit court is final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals in accordance with the provisions of section one, article six, chapter twenty-nine of this code.

§30-7C-13. Injunction or other relief against unlawful acts.

(a) The practice of dialysis technician by an individual who has not met the requirements of this article is declared to be inimical to the public health and welfare and to be a public nuisance.

(b) Whenever, in the judgment of the board, an individual has engaged in, is engaging in, or is about to engage in, the practice of dialysis technician without holding a valid certification under this article, or has engaged, is engaging or is about to engage in any act which constitutes, or will constitute, a violation of this article, the board may make application to the appropriate court having equity jurisdiction for an order enjoining the practices or acts, and upon a showing that the individual has engaged, is engaging or is about to engage, in any such practices or acts, an injunction, restraining order, or other order as the court considers appropriate shall be entered by the court.

(c) The remedy provided in this section is in addition to, and not in lieu of, all other penalties and remedies provided in this article.

§30-7D-1. Pilot program.

 [Repealed.]

§30-7D-2. Definitions.

 [Repealed.]

§30-7D-3. Certificate required.

 [Repealed.]

§30-7D-4. Designated facilities.

 [Repealed.]

§30-7D-5. Qualifications.

 [Repealed.]

§30-7D-6. Scope of work.

 [Repealed.]

§30-7D-7. Renewal of certifications.

 [Repealed.]

§30-7D-8. Disciplinary actions.

 [Repealed.]

§30-7D-9. Offenses and penalties.

 [Repealed.]

§30-7D-10. Injunction.

 [Repealed.]

§30-7D-11. Medication Assistive Person Advisory Committee.

 [Repealed.]

§30-7D-12. Applicability of article.

 [Repealed.]

§30-7D-13. Rulemaking authority.

 [Repealed.]

§30-7E-1. Definitions.

For the purposes of this article, the following words and terms have the meanings ascribed to them, unless the context clearly indicates otherwise.

(1) “Board” means the West Virginia Board of Examiners for Registered Professional Nurses.

(2) “Major mental illness” means a diagnosis of a mental disorder within the axis of psychotic or affective or mood, alcohol or chemical abuse or alcohol or chemical dependency as stipulated in the International Code of Diagnosis.

(3) “Nurse” means those health care professionals licensed by the West Virginia Board of Examiners for Registered Professional Nurses.

(4) “Nurse health program” means a program meeting the requirements of this article.

(5) “Qualifying illness” means the diagnosis of alcohol or substance abuse, alcohol or substance dependency or major mental illness.

§30-7E-2. Nurse health program.

(a) The board is authorized to designate one or more nurse health programs. To be eligible for designation by the board, a nurse health program shall:

(1) Enter into an agreement with the board outlining specific requirements of the program;

(2) Agree to make its services available to all licensed West Virginia registered professional nurses with a qualifying illness;

(3) Provide for the education of nurses with respect to the recognition and treatment of alcohol, chemical dependency and mental illness and the availability of the nurse health program for qualifying illnesses;

(4) Offer assistance to any person in referring a nurse for purposes of assessment or treatment or both for a qualifying illness;

(5) Monitor the status of a nurse who enters treatment for a qualifying illness pursuant to a written, voluntary agreement during treatment;

(6) Monitor the compliance of a nurse who enters into a written, voluntary agreement for a qualifying illness with the nurse health program setting forth a course for recovery;

(7) Agree to accept referrals from the board to provide monitoring services pursuant to a board order; and

(8) Include such other requirements as the board deems necessary.

(b) A designated nurse health program shall:

(1) Set and collect reasonable fees, grants and donations for administration and services provided;

(2) Work collaboratively with the board to develop model compliance agreements;

(3) Work collaboratively with the board to identify qualified providers of services as may be needed by the individuals participating in the nurse health program;

(4) Report to the board, no less than annually, statistics including the number of individuals served; the number of compliant individuals; the number of individuals who have successfully completed their agreement period; and the number of individuals reported to the board for suspected noncompliance: Provided, That in making such report the nurse health program shall not disclose any personally identifiable information relating to any nurse participating in a voluntary agreement as provided herein: Provided, however, That in the case of a nurse not in compliance with the requirements, full disclosure of information will be provided to the board.

(c) The fact that a nurse is participating in a designated nurse health program is confidential, as is all nurse patient information acquired, created or used by the nurse health program, and it shall remain confidential and may not be subject to discovery or subpoena in a civil case. The disclosure of participation and noncompliance to the board, as required by a compliance agreement, waives the confidentiality as to the board for disciplinary purposes.

(d) The nurse health program and all persons engaged in nurse health program activities are immune from civil liability and no civil action may be brought or maintained while the nurse health program and all persons engaged in nurse health program activities are acting in good faith and within the scope of their duties.

(e) The board is immune from civil liability and no civil action may be brought or maintained against the board or the state for an injury alleged to have been the result of the activities of the nurse health program or the board referral of an individual to the nurse health program when they are acting in good faith and within the scope of their duties.

§30-7E-3. Discretionary authority of boards to designate programs.

The West Virginia Board of Examiners of Registered Professional Nurses has the sole discretion to designate nurse health programs for licensees of the board and no provision of this article may be construed to entitle any nurse to the creation or designation of a nurse health program for any individual qualifying illness or group of qualifying illnesses.

§30-7F-1. Findings and Declaration of Purpose.

(a) The party states find that:

(1) The health and safety of the public are affected by the degree of compliance with and the effectiveness of enforcement activities related to state nurse licensure laws;

(2) Violations of nurse licensure and other laws regulating the practice of nursing may result in injury or harm to the public;

(3) The expanded mobility of nurses and the use of advanced communication technologies as part of our nation’s health care delivery system require greater coordination and cooperation among states in the areas of nurse licensure and regulation;

(4) New practice modalities and technology make compliance with individual state nurse licensure laws difficult and complex;

(5) The current system of duplicative licensure for nurses practicing in multiple states is cumbersome and redundant for both nurses and states; and

(6) Uniformity of nurse licensure requirements throughout the states promotes public safety and public health benefits.

(b) The general purposes of this compact are to:

(1) Facilitate the states’ responsibility to protect the public’s health and safety;

(2) Ensure and encourage the cooperation of party states in the areas of nurse licensure and regulation;

(3) Facilitate the exchange of information between party states in the areas of nurse regulation, investigation and adverse actions;

(4) Promote compliance with the laws governing the practice of nursing in each jurisdiction;

(5) Invest all party states with the authority to hold a nurse accountable for meeting all state practice laws in the state in which the patient is located at the time care is rendered through the mutual recognition of party state licenses;

(6) Decrease redundancies in the consideration and issuance of nurse licenses; and

(7) Provide opportunities for interstate practice by nurses who meet uniform licensure requirements.

§30-7F-2. Definitions.

As used in this compact:

(1) “Adverse action” means any administrative, civil, equitable or criminal action permitted by a state’s laws which is imposed by a licensing board or other authority against a nurse, including actions against an individual’s license or multistate licensure privilege such as revocation, suspension, probation, monitoring of the licensee, limitation on the licensee’s practice, or any other encumbrance on licensure affecting a nurse’s authorization to practice, including issuance of a cease and desist action.

(2) “Alternative program” means a nondisciplinary monitoring program approved by a licensing board.

(3) “Coordinated licensure information system” means an integrated process for collecting, storing and sharing information on nurse licensure and enforcement activities related to nurse licensure laws that is administered by a nonprofit organization composed of and controlled by licensing boards.

(4) “Current significant investigative information” means:

(A) Investigative information that a licensing board, after a preliminary inquiry that includes notification and an opportunity for the nurse to respond, if required by state law, has reason to believe is not groundless and, if proven true, would indicate more than a minor infraction; or

(B) Investigative information that indicates that the nurse represents an immediate threat to public health and safety regardless of whether the nurse has been notified and had an opportunity to respond.

(5) “Encumbrance” means a revocation or suspension of, or any limitation on, the full and unrestricted practice of nursing imposed by a licensing board.

(6) “Home state” means the party state which is the nurse’s primary state of residence.

(7) “Licensing board” means a party state’s regulatory body responsible for issuing nurse licenses.

(8) “Multistate license” means a license to practice as a registered or a licensed practical/vocational nurse (LPN/VN) issued by a home state licensing board that authorizes the licensed nurse to practice in all party states under a multistate licensure privilege.

(9) “Multistate licensure privilege” means a legal authorization associated with a multistate license permitting the practice of nursing as either a registered nurse (RN) or LPN/VN in a remote state.

(10) “Nurse” means RN or LPN/VN, as those terms are defined by each party state’s practice laws.

(11) “Party state” means any state that has adopted this compact.

(12) “Remote state” means a party state, other than the home state.

(13) “Single-state license” means a nurse license issued by a party state that authorizes practice only within the issuing state and does not include a multistate licensure privilege to practice in any other party state.

(14) “State” means a state, territory or possession of the United States and the District of Columbia.

(15) “State practice laws” means a party state’s laws, rules and regulations that govern the practice of nursing, define the scope of nursing practice, and create the methods and grounds for imposing discipline. “State practice laws” do not include requirements necessary to obtain and retain a license, except for qualifications or requirements of the home state.

§30-7F-3. General Provisions and Jurisdiction.

(a) A multistate license to practice registered or licensed practical/vocational nursing issued by a home state to a resident in that state will be recognized by each party state as authorizing a nurse to practice as a registered nurse (RN) or as a licensed practical/vocational nurse (LPN/VN), under a multistate licensure privilege, in each party state.

(b) A state must implement procedures for considering the criminal history records of applicants for initial multistate license or licensure by endorsement. Such procedures shall include the submission of fingerprints or other biometric-based information by applicants for the purpose of obtaining an applicant’s criminal history record information from the Federal Bureau of Investigation and the agency responsible for retaining that state’s criminal records.

(c) Each party state shall require the following for an applicant to obtain or retain a multistate license in the home state:

(1) Meets the home state’s qualifications for licensure or renewal of licensure, as well as, all other applicable state laws;

(2) (A) Has graduated or is eligible to graduate from a licensing board-approved RN or LPN/VN prelicensure education program; or

(B) Has graduated from a foreign RN or LPN/VN prelicensure education program that:

(i) Has been approved by the authorized accrediting body in the applicable country and;

(ii) Has been verified by an independent credentials review agency to be comparable to a licensing board-approved prelicensure education program.

(3) Has, if a graduate of a foreign prelicensure education program not taught in English or if English is not the individual’s native language, successfully passed an English proficiency examination that includes the components of reading, speaking, writing and listening;

(4) Has successfully passed an NCLEX-RN® or NCLEX-PN® Examination or recognized predecessor, as applicable;

(5) Is eligible for or holds an active, unencumbered license;

(6) Has submitted, in connection with an application for initial licensure or licensure by endorsement, fingerprints or other biometric data for the purpose of obtaining criminal history record information from the Federal Bureau of Investigation and the agency responsible for retaining that state’s criminal records;

(7) Has not been convicted or found guilty, or has entered into an agreed disposition, of a felony offense under applicable state or federal criminal law;

(8) Has not been convicted or found guilty, or has entered into an agreed disposition, of a misdemeanor offense related to the practice of nursing as determined on a case-by-case basis;

(9) Is not currently enrolled in an alternative program;

(10) Is subject to self-disclosure requirements regarding current participation in an alternative program; and

(11) Has a valid United States Social Security number.

(d) All party states shall be authorized, in accordance with existing state due process law, to take adverse action against a nurse’s multistate licensure privilege such as revocation, suspension, probation or any other action that affects a nurse’s authorization to practice under a multistate licensure privilege, including cease and desist actions. If a party state takes such action, it shall promptly notify the administrator of the coordinated licensure information system. The administrator of the coordinated licensure information system shall promptly notify the home state of any such actions by remote states.

(e) A nurse practicing in a party state must comply with the state practice laws of the state in which the client is located at the time service is provided. The practice of nursing is not limited to patient care, but shall include all nursing practice as defined by the state practice laws of the party state in which the client is located. The practice of nursing in a party state under a multistate licensure privilege will subject a nurse to the jurisdiction of the licensing board, the courts and the laws of the party state in which the client is located at the time service is provided.

(f) Individuals not residing in a party state shall continue to be able to apply for a party state’s single-state license as provided under the laws of each party state. However, the single- state license granted to these individuals will not be recognized as granting the privilege to practice nursing in any other party state. Nothing in this compact shall affect the requirements established by a party state for the issuance of a single-state license.

(g) Any nurse holding a home state multistate license, on the effective date of this compact, may retain and renew the multistate license issued by the nurse’s then-current home state, provided that:

(1) A nurse, who changes primary state of residence after this compact’s effective date, must meet all applicable subsection (c) section three requirements to obtain a multistate license from a new home state.

(2) A nurse who fails to satisfy the multistate licensure requirements in subsection (c) section three due to a disqualifying event occurring after this compact’s effective date shall be ineligible to retain or renew a multistate license, and the nurse’s multistate license shall be revoked or deactivated in accordance with applicable rules adopted by the Interstate Commission of Nurse Licensure Compact Administrators (“Commission”).

§30-7F-4. Applications for Licensure in a Party State.

(a) Upon application for a multistate license, the licensing board in the issuing party state shall ascertain, through the coordinated licensure information system, whether the applicant has ever held, or is the holder of, a license issued by any other state, whether there are any encumbrances on any license or multistate licensure privilege held by the applicant, whether any adverse action has been taken against any license or multistate licensure privilege held by the applicant and whether the applicant is currently participating in an alternative program.

(b) A nurse may hold a multistate license, issued by the home state, in only one party state at a time.

(c) If a nurse changes primary state of residence by moving between two party states, the nurse must apply for licensure in the new home state, and the multistate license issued by the prior home state will be deactivated in accordance with applicable rules adopted by the commission.

(1) The nurse may apply for licensure in advance of a change in primary state of residence.

(2) A multistate license shall not be issued by the new home state until the nurse provides satisfactory evidence of a change in primary state of residence to the new home state and satisfies all applicable requirements to obtain a multistate license from the new home state.

(d) If a nurse changes primary state of residence by moving from a party state to a nonparty state, the multistate license issued by the prior home state will convert to a single-state license, valid only in the former home state.

§30-7F-5. Additional Authorities Invested in Party State Licensing Boards.

(a) In addition to the other powers conferred by state law, a licensing board shall have the authority to:

(1) Take adverse action against a nurse’s multistate licensure privilege to practice within that party state.

(A) Only the home state shall have the power to take adverse action against a nurse’s license issued by the home state.

(B) For purposes of taking adverse action, the home state licensing board shall give the same priority and effect to reported conduct received from a remote state as it would if such conduct had occurred within the home state. In so doing, the home state shall apply its own state laws to determine appropriate action.

(2) Issue cease and desist orders or impose an encumbrance on a nurse’s authority to practice within that party state.

(3) Complete any pending investigations of a nurse who changes primary state of residence during the course of such investigations. The licensing board shall also have the authority to take appropriate action(s) and shall promptly report the conclusions of such investigations to the administrator of the coordinated licensure information system. The administrator of the coordinated licensure information system shall promptly notify the new home state of any such actions.

(4) Issue subpoenas for both hearings and investigations that require the attendance and testimony of witnesses, as well as, the production of evidence. Subpoenas issued by a licensing board in a party state for the attendance and testimony of witnesses or the production of evidence from another party state shall be enforced in the latter state by any court of competent jurisdiction, according to the practice and procedure of that court applicable to subpoenas issued in proceedings pending before it. The issuing authority shall pay any witness fees, travel expenses, mileage and other fees required by the service statutes of the state in which the witnesses or evidence are located.

(5) Obtain and submit, for each nurse licensure applicant, fingerprint or other biometric-based information to the Federal Bureau of Investigation for criminal background checks, receive the results of the Federal Bureau of Investigation record search on criminal background checks and use the results in making licensure decisions.

(6) If otherwise permitted by state law, recover from the affected nurse the costs of investigations and disposition of cases resulting from any adverse action taken against that nurse.

(7) Take adverse action based on the factual findings of the remote state, provided that the licensing board follows its own procedures for taking such adverse action.

(b) If adverse action is taken by the home state against a nurse’s multistate license, the nurse’s multistate licensure privilege to practice in all other party states shall be deactivated until all encumbrances have been removed from the multistate license. All home state disciplinary orders that impose adverse action against a nurse’s multistate license shall include a statement that the nurse’s multistate licensure privilege is deactivated in all party states during the pendency of the order.

(c) Nothing in this compact shall override a party state’s decision that participation in an alternative program may be used in lieu of adverse action. The home state licensing board shall deactivate the multistate licensure privilege under the multistate license of any nurse for the duration of the nurse’s participation in an alternative program.

§30-7F-6. Coordinated Licensure Information System and Exchange of Information.

(a) All party states shall participate in a coordinated licensure information system of all licensed registered nurses (RNs) and licensed practical/vocational nurses (LPNs/VNs). This system will include information on the licensure and disciplinary history of each nurse, as submitted by party states, to assist in the coordination of nurse licensure and enforcement efforts.

(b) The commission, in consultation with the administrator of the coordinated licensure information system, shall formulate necessary and proper procedures for the identification, collection and exchange of information under this compact.

(c) All licensing boards shall promptly report to the coordinated licensure information system any adverse action, any current significant investigative information, denials of applications (with the reasons for such denials) and nurse participation in alternative programs known to the licensing board regardless of whether such participation is deemed nonpublic or confidential under state law.

(d) Current significant investigative information and participation in nonpublic or confidential alternative programs shall be transmitted through the coordinated licensure information system only to party state licensing boards.

(e) Notwithstanding any other provision of law, all party state licensing boards contributing information to the coordinated licensure information system may designate information that may not be shared with nonparty states or disclosed to other entities or individuals without the express permission of the contributing state.

(f) Any personally identifiable information obtained from the coordinated licensure information system by a party state licensing board shall not be shared with nonparty states or disclosed to other entities or individuals except to the extent permitted by the laws of the party state contributing the information.

(g) Any information contributed to the coordinated licensure information system that is subsequently required to be expunged by the laws of the party state contributing that information shall also be expunged from the coordinated licensure information system.

(h) The compact administrator of each party state shall furnish a uniform data set to the compact administrator of each other party state, which shall include, at a minimum:

(1) Identifying information;

(2) Licensure data;

(3) Information related to alternative program participation; and

(4) Other information that may facilitate the administration of this compact, as determined by commission rules.

(i) The compact administrator of a party state shall provide all investigative documents and information requested by another party state.

§30-7F-7. Establishment of the Interstate Commission of Nurse Licensure Compact Administrators.

(a) The party states hereby create and establish a joint public entity known as the Interstate Commission of Nurse Licensure Compact Administrators.

(1) The commission is an instrumentality of the party states.

(2) Venue is proper, and judicial proceedings by or against the commission shall be brought solely and exclusively, in a court of competent jurisdiction where the principal office of the commission is located. The commission may waive venue and jurisdictional defenses to the extent it adopts or consents to participate in alternative dispute resolution proceedings.

(3) Nothing in this compact shall be construed to be a waiver of sovereign immunity.

(b) Membership, Voting and Meetings.

(1) Each party state shall have and be limited to one administrator. The head of the state licensing board or designee shall be the administrator of this compact for each party state. Any administrator may be removed or suspended from office as provided by the law of the state from which the administrator is appointed. Any vacancy occurring in the commission shall be filled in accordance with the laws of the party state in which the vacancy exists.

(2) Each administrator shall be entitled to one vote with regard to the promulgation of rules and creation of bylaws and shall otherwise have an opportunity to participate in the business and affairs of the commission. An administrator shall vote in person or by such other means as provided in the bylaws. The bylaws may provide for an administrator’s participation in meetings by telephone or other means of communication.

(3) The commission shall meet at least once during each calendar year. Additional meetings shall be held as set forth in the bylaws or rules of the commission.

(4) All meetings shall be open to the public, and public notice of meetings shall be given in the same manner as required under the rulemaking provisions in section eight.

(5) The commission may convene in a closed, nonpublic meeting if the commission must discuss:

(A) Noncompliance of a party state with its obligations under this compact;

(B) The employment, compensation, discipline or other personnel matters, practices or procedures related to specific employees or other matters related to the commission’s internal personnel practices and procedures;

(C) Current, threatened or reasonably anticipated litigation;

(D) Negotiation of contracts for the purchase or sale of goods, services or real estate;

(E) Accusing any person of a crime or formally censuring any person;

(F) Disclosure of trade secrets or commercial or financial information that is privileged or confidential;

(G) Disclosure of information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;

(H) Disclosure of investigatory records compiled for law enforcement purposes;

(I) Disclosure of information related to any reports prepared by or on behalf of the commission for the purpose of investigation of compliance with this compact; or

(J) Matters specifically exempted from disclosure by federal or state statute.

(6) If a meeting, or portion of a meeting, is closed pursuant to this provision, the commission’s legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exempting provision. The commission shall keep minutes that fully and clearly describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, and the reasons therefor, including a description of the views expressed. All documents considered in connection with an action shall be identified in such minutes. All minutes and documents of a closed meeting shall remain under seal, subject to release by a majority vote of the commission or order of a court of competent jurisdiction.

(c) The commission shall, by a majority vote of the administrators, prescribe bylaws or rules to govern its conduct as may be necessary or appropriate to carry out the purposes and exercise the powers of this compact, including but not limited to:

(1) Establishing the fiscal year of the commission;

(2) Providing reasonable standards and procedures:

(A) For the establishment and meetings of other committees; and

(B) Governing any general or specific delegation of any authority or function of the commission;

(3) Providing reasonable procedures for calling and conducting meetings of the commission, ensuring reasonable advance notice of all meetings and providing an opportunity for attendance of such meetings by interested parties, with enumerated exceptions designed to protect the public’s interest, the privacy of individuals, and proprietary information, including trade secrets. The commission may meet in closed session only after a majority of the administrators vote to close a meeting in whole or in part. As soon as practicable, the commission must make public a copy of the vote to close the meeting revealing the vote of each administrator, with no proxy votes allowed;

(4) Establishing the titles, duties and authority and reasonable procedures for the election of the officers of the commission;

(5) Providing reasonable standards and procedures for the establishment of the personnel policies and programs of the commission. Notwithstanding any civil service or other similar laws of any party state, the bylaws shall exclusively govern the personnel policies and programs of the commission; and

(6) Providing a mechanism for winding up the operations of the commission and the equitable disposition of any surplus funds that may exist after the termination of this compact after the payment or reserving of all of its debts and obligations;

(d) The commission shall publish its bylaws and rules, and any amendments thereto, in a convenient form on the website of the commission.

(e) The commission shall maintain its financial records in accordance with the bylaws.

(f) The commission shall meet and take such actions as are consistent with the provisions of this compact and the bylaws.

(g) The commission shall have the following powers:

(1) To promulgate uniform rules to facilitate and coordinate implementation and administration of this compact. The rules shall have the force and effect of law and shall be binding in all party states;

(2) To bring and prosecute legal proceedings or actions in the name of the commission, provided that the standing of any licensing board to sue or be sued under applicable law shall not be affected;

(3) To purchase and maintain insurance and bonds;

(4) To borrow, accept or contract for services of personnel, including, but not limited to, employees of a party state or nonprofit organizations;

(5) To cooperate with other organizations that administer state compacts related to the regulation of nursing, including but not limited to sharing administrative or staff expenses, office space or other resources;

(6) To hire employees, elect or appoint officers, fix compensation, define duties, grant such individuals appropriate authority to carry out the purposes of this compact, and to establish the commission’s personnel policies and programs relating to conflicts of interest, qualifications of personnel and other related personnel matters;

(7) To accept any and all appropriate donations, grants and gifts of money, equipment, supplies, materials and services, and to receive, utilize and dispose of the same; provided that at all times the commission shall avoid any appearance of impropriety or conflict of interest;

(8) To lease, purchase, accept appropriate gifts or donations of, or otherwise to own, hold, improve or use, any property, whether real, personal or mixed; provided that at all times the commission shall avoid any appearance of impropriety;

(9) To sell, convey, mortgage, pledge, lease, exchange, abandon or otherwise dispose of any property, whether real, personal or mixed;

(10) To establish a budget and make expenditures;

(11) To borrow money;

(12) To appoint committees, including advisory committees comprised of administrators, state nursing regulators, state legislators or their representatives, and consumer representatives, and other such interested persons;

(13) To provide and receive information from, and to cooperate with, law-enforcement agencies;

(14) To adopt and use an official seal; and

(15) To perform such other functions as may be necessary or appropriate to achieve the purposes of this compact consistent with the state regulation of nurse licensure and practice.

(h) Financing of the commission.

(1) The commission shall pay, or provide for the payment of, the reasonable expenses of its establishment, organization and ongoing activities.

(2) The commission may also levy on and collect an annual assessment from each party state to cover the cost of its operations, activities and staff in its annual budget as approved each year. The aggregate annual assessment amount, if any, shall be allocated based upon a formula to be determined by the commission, which shall promulgate a rule that is binding upon all party states.

(3) The commission shall not incur obligations of any kind prior to securing the funds adequate to meet the same; nor shall the commission pledge the credit of any of the party states, except by, and with the authority of, such party state.

(4) The commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the commission shall be audited yearly by a certified or licensed public accountant, and the report of the audit shall be included in and become part of the annual report of the commission.

(i) Qualified Immunity, Defense and Indemnification.

(1) The administrators, officers, executive director, employees and representatives of the commission shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or alleged act, error or omission that occurred, or that the person against whom the claim is made had a reasonable basis for believing occurred, within the scope of commission employment, duties or responsibilities; provided that nothing in this paragraph shall be construed to protect any such person from suit or liability for any damage, loss, injury or liability caused by the intentional, willful or wanton misconduct of that person.

(2) The commission shall defend any administrator, officer, executive director, employee or representative of the commission in any civil action seeking to impose liability arising out of any actual or alleged act, error or omission that occurred within the scope of commission employment, duties or responsibilities, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities; provided that nothing herein shall be construed to prohibit that person from retaining his or her own counsel; and provided further that the actual or alleged act, error or omission did not result from that person’s intentional, willful or wanton misconduct.

(3) The commission shall indemnify and hold harmless any administrator, officer, executive director, employee or representative of the commission for the amount of any settlement or judgment obtained against that person arising out of any actual or alleged act, error or omission that occurred within the scope of commission employment, duties or responsibilities, or that such person had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities, provided that the actual or alleged act, error or omission did not result from the intentional, willful or wanton misconduct of that person.

§30-7F-8. Rulemaking.

(a) The commission shall exercise its rulemaking powers pursuant to the criteria set forth in this section and the rules adopted thereunder. Rules and amendments shall become binding as of the date specified in each rule or amendment and shall have the same force and effect as provisions of this compact.

(b) Rules or amendments to the rules shall be adopted at a regular or special meeting of the commission.

(c) Prior to promulgation and adoption of a final rule or rules by the commission, and at least sixty days in advance of the meeting at which the rule will be considered and voted upon, the commission shall file a notice of proposed rulemaking:

(1) On the website of the commission; and

(2) On the website of each licensing board or the publication in which each state would otherwise publish proposed rules.

(d) The notice of proposed rulemaking shall include:

(1) The proposed time, date and location of the meeting in which the rule will be considered and voted upon;

(2) The text of the proposed rule or amendment, and the reason for the proposed rule;

(3) A request for comments on the proposed rule from any interested person; and

(4) The manner in which interested persons may submit notice to the commission of their intention to attend the public hearing and any written comments.

(e) Prior to adoption of a proposed rule, the commission shall allow persons to submit written data, facts, opinions and arguments, which shall be made available to the public.

(f) The commission shall grant an opportunity for a public hearing before it adopts a rule or amendment.

(g) The commission shall publish the place, time and date of the scheduled public hearing.

(1) Hearings shall be conducted in a manner providing each person who wishes to comment a fair and reasonable opportunity to comment orally or in writing. All hearings will be recorded, and a copy will be made available upon request.

(2) Nothing in this section shall be construed as requiring a separate hearing on each rule. Rules may be grouped for the convenience of the commission at hearings required by this section.

(h) If no one appears at the public hearing, the commission may proceed with promulgation of the proposed rule.

(i) Following the scheduled hearing date, or by the close of business on the scheduled hearing date if the hearing was not held, the commission shall consider all written and oral comments received.

(j) The commission shall, by majority vote of all administrators, take final action on the proposed rule and shall determine the effective date of the rule, if any, based on the rulemaking record and the full text of the rule.

(k) Upon determination that an emergency exists, the commission may consider and adopt an emergency rule without prior notice, opportunity for comment or hearing, provided that the usual rulemaking procedures provided in this compact and in this section shall be retroactively applied to the rule as soon as reasonably possible, in no event later than ninety days after the effective date of the rule. For the purposes of this provision, an emergency rule is one that must be adopted immediately in order to:

(1) Meet an imminent threat to public health, safety or welfare;

(2) Prevent a loss of commission or party state funds; or

(3) Meet a deadline for the promulgation of an administrative rule that is required by federal law or rule.

(l) The commission may direct revisions to a previously adopted rule or amendment for purposes of correcting typographical errors, errors in format, errors in consistency or grammatical errors. Public notice of any revisions shall be posted on the website of the commission. The revision shall be subject to challenge by any person for a period of thirty days after posting. The revision may be challenged only on grounds that the revision results in a material change to a rule. A challenge shall be made in writing, and delivered to the commission, prior to the end of the notice period. If no challenge is made, the revision will take effect without further action. If the revision is challenged, the revision may not take effect without the approval of the commission.

§30-7F-9. Oversight, Dispute Resolution and Enforcement.

(a) Oversight

(1) Each party state shall enforce this compact and take all actions necessary and appropriate to effectuate this compact’s purposes and intent.

(2) The commission shall be entitled to receive service of process in any proceeding that may affect the powers, responsibilities or actions of the commission, and shall have standing to intervene in such a proceeding for all purposes. Failure to provide service of process in such proceeding to the commission shall render a judgment or order void as to the commission, this compact or promulgated rules.

(b) Default, Technical Assistance and Termination

(1) If the commission determines that a party state has defaulted in the performance of its obligations or responsibilities under this compact or the promulgated rules, the commission shall:

(A) Provide written notice to the defaulting state and other party states of the nature of the default, the proposed means of curing the default or any other action to be taken by the commission; and

(B) Provide remedial training and specific technical assistance regarding the default.

(2) If a state in default fails to cure the default, the defaulting state’s membership in this compact may be terminated upon an affirmative vote of a majority of the administrators, and all rights, privileges and benefits conferred by this compact may be terminated on the effective date of termination. A cure of the default does not relieve the offending state of obligations or liabilities incurred during the period of default.

(3) Termination of membership in this compact shall be imposed only after all other means of securing compliance have been exhausted. Notice of intent to suspend or terminate shall be given by the commission to the Governor of the defaulting state and to the executive officer of the defaulting state’s licensing board and each of the party states.

(4) A state whose membership in this compact has been terminated is responsible for all assessments, obligations and liabilities incurred through the effective date of termination, including obligations that extend beyond the effective date of termination.

(5) The commission shall not bear any costs related to a state that is found to be in default or whose membership in this compact has been terminated unless agreed upon in writing between the commission and the defaulting state.

(6) The defaulting state may appeal the action of the commission by petitioning the U.S. District Court for the District of Columbia or the federal district in which the commission has its principal offices. The prevailing party shall be awarded all costs of such litigation, including reasonable attorneys’ fees.

(c) Dispute Resolution

(1) Upon request by a party state, the commission shall attempt to resolve disputes related to the compact that arise among party states and between party and nonparty states.

(2) The commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes, as appropriate.

(3) In the event the commission cannot resolve disputes among party states arising under this compact:

(A) The party states may submit the issues in dispute to an arbitration panel, which will be comprised of individuals appointed by the compact administrator in each of the affected party states and an individual mutually agreed upon by the compact administrators of all the party states involved in the dispute.

(B) The decision of a majority of the arbitrators shall be final and binding.

(d) Enforcement

(1) The commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact.

(2) By majority vote, the commission may initiate legal action in the U.S. District Court for the District of Columbia or the federal district in which the commission has its principal offices against a party state that is in default to enforce compliance with the provisions of this compact and its promulgated rules and bylaws. The relief sought may include both injunctive relief and damages. In the event judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation, including reasonable attorneys’ fees.

(3) The remedies herein shall not be the exclusive remedies of the commission. The commission may pursue any other remedies available under federal or state law.

§30-7F-10. Effective Date, Withdrawal and Amendment.

(a) This compact shall become effective and binding on the earlier of the date of legislative enactment of this compact into law by no less than twenty-six states or December 31, 2018. All party states to this compact, that also were parties to the prior Nurse Licensure Compact, superseded by this compact, (“prior compact”), shall be deemed to have withdrawn from said prior compact within six months after the effective date of this compact.

(b) Each party state to this compact shall continue to recognize a nurse’s multistate licensure privilege to practice in that party state issued under the prior compact until such party state has withdrawn from the prior compact.

(c) Any party state may withdraw from this compact by enacting a statute repealing the same. A party state’s withdrawal shall not take effect until six (6) months after enactment of the repealing statute.

(d) A party state’s withdrawal or termination shall not affect the continuing requirement of the withdrawing or terminated state’s licensing board to report adverse actions and significant investigations occurring prior to the effective date of such withdrawal or termination.

(e) Nothing contained in this compact shall be construed to invalidate or prevent any nurse licensure agreement or other cooperative arrangement between a party state and a nonparty state that is made in accordance with the other provisions of this compact.

(f) This compact may be amended by the party states. No amendment to this compact shall become effective and binding upon the party states unless and until it is enacted into the laws of all party states.

(g) Representatives of nonparty states to this compact shall be invited to participate in the activities of the commission, on a nonvoting basis, prior to the adoption of this compact by all states.

§30-7F-11. Construction and Severability.

This compact shall be liberally construed so as to effectuate the purposes thereof. The provisions of this compact shall be severable, and if any phrase, clause, sentence or provision of this compact is declared to be contrary to the Constitution of any party state or of the United States, or if the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this compact shall be held to be contrary to the Constitution of any party state, this compact shall remain in full force and effect as to the remaining party states and in full force and effect as to the party state affected as to all severable matters.

§30-8-1. Unlawful acts.

(a) It is unlawful for any person to practice or offer to practice optometry in this state without a license or permit issued under the provisions of this article, or advertise or use any title or description tending to convey the impression that they are an optometrist unless the person has been duly licensed or permitted under the provisions of this article.

(b) A business entity may not render any service or engage in any activity which, if rendered or engaged in by an individual, would constitute the practice of optometry, except through a licensee or permittee.

(c) A licensee may not practice optometry as an employee of any commercial or mercantile establishment.

(d) A licensee may not practice optometry on premises not separate from premises whereon eyeglasses, lenses, eyeglass frames or any other merchandise or products are sold by any other person. For the purposes of this section, any room or suite of rooms in which optometry is practiced shall be considered separate premises if it has a separate and direct entrance from a street or public hallway or corridor within a building, which corridor is partitioned off by partitions from floor to ceiling.

(e) A person who is not licensed under this article as an optometrist may not characterize himself or herself as an "optometrist" or "doctor of optometry" nor may a person use the designation "OD".

§30-8-2. Applicable law.

The practice of optometry and the Board of Optometry are subject to the provisions of article one of this chapter, the provisions of this article and the board's rules.

§30-8-2a.

Repealed.

Acts, 2010 Reg. Sess., Ch. 152.

§30-8-2b.

Repealed.

Acts, 2010 Reg. Sess., Ch. 152.

§30-8-3. Definitions.

As used in this article:

(a) "Appendages" means the eyelids, the eyebrows, the conjunctiva and the lacrimal apparatus.

(b) "Applicant" means any person making application for a license, certificate or temporary permit under the provisions of this article.

(c) "Board" means the West Virginia Board of Optometry.

(d) "Business entity" means any firm, partnership, association, company, corporation, limited partnership, limited liability company or other entity owned by licensees that practices optometry.

(e) "Certificate" means a prescription certificate issued under section fifteen of this article.

(f) "Certificate holder" means a person authorized to prescribe certain drugs under section fifteen of this article.

(g) "Examination, diagnosis and treatment" means a method compatible with accredited optometric education and professional competence pursuant to this article.

(h) "License" means a license to practice optometry.

(i) "Licensee" means an optometrist licensed under the provisions of this article.

(j) "Ophthalmologist" means a physician specializing in ophthalmology licenced in West Virginia to practice medicine and surgery under article thereof this chapter or osteopathy under article fourteen of this chapter.

(k) "Permittee" means a person holding a temporary permit.

(l) "Practice of optometry" means the examining, diagnosing and treating of any visual defect or abnormal condition of the human eye or its appendages within the scope established in this article or associated rules.

(m) "Temporary permit" or "permit" means a permit issued to a person who has graduated from an approved school, has taken the examination prescribed by the board, and is awaiting the results of the examination.

§30-8-3a.

Repealed.

Acts, 2010 Reg. Sess., Ch. 152.

§30-8-3b.

Repealed.

Acts, 2010 Reg. Sess., Ch. 152.

§30-8-4. Board of Optometry.

(a) The West Virginia Board of Optometry is continued. The members of the board in office on July 1, 2010, shall, unless sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and qualified.

(b) The board shall consist of the following members appointed by the Governor, by and with the advice and consent of the Senate:

(1) Five licensed optometrists; and

(2) Two citizen members, who are not licensed under the provisions of this article and who do not perform any services related to the practice of the profession regulated under the provisions of this article.

(c) Each licensed member of the board, at the time of his or her appointment, must have held a professional license in this state for a period of not less than three years immediately preceding the appointment.

(d) Each member of the board must be a resident of this state during the appointment term.

(e) The term shall be three years. A member may not serve more than two consecutive full terms. A member may continue to serve until a successor has been appointed and has qualified.

(f) A vacancy on the board shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant and the appointment shall be made within sixty days of the vacancy.

(g) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.

(h) A member of the board immediately and automatically forfeits membership to the board if his or her license to practice is suspended or revoked, is convicted of a felony under the laws of any jurisdiction, or becomes a nonresident of this state.

(i) The board shall elect annually a president and a secretary-treasurer from its members who serve at the will of the board.

(j) Each member of the board is entitled to compensation and expense reimbursement in accordance with article one of this chapter.

(k) A majority of the members of the board constitutes a quorum.

(l) The board shall hold at least two meetings a year. Other meetings may be held at the call of the president or upon the written request of two members at the time and place as designated in the call or request.

(m) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state.

§30-8-5. Powers and duties of the board.

(a) The board has all the powers and duties set forth in this article, by rule, in article one of this chapter and elsewhere in law.

(b) The board shall:

(1) Hold meetings, conduct hearings and administer examinations;

(2) Establish requirements for licenses, certificates and permits;

(3) Establish procedures for submitting, approving and rejecting applications for licenses, certificates and permits;

(4) Determine the qualifications of any applicant for licenses, certificates and permits;

(5) Prepare, conduct, administer and grade examinations for licenses;

(6) Determine the passing grade for the examinations;

(7) Maintain records of the examinations by the board or a third party administer, including the number of persons taking the examinations and the pass and fail rate;

(8) Hire, discharge, establish the job requirements and fix the compensation of the executive secretary;

(9) Maintain an office and hire, discharge, establish the job requirements and fix the compensation of employees, investigators and contracted employees necessary to enforce the provisions of this article;

(10) Investigate alleged violations of the provisions of this article, legislative rules, orders and final decisions of the board;

(11) Conduct disciplinary hearings of persons regulated by the board;

(12) Determine disciplinary action and issue orders;

(13) Institute appropriate legal action for the enforcement of the provisions of this article;

(14) Maintain an accurate registry of names and addresses of all licensees regulated by the board;

(15) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;

(16) Establish the continuing education requirements for licensees;

(17) Issue, renew, combine, deny, suspend, revoke or reinstate licenses, certificates and permits;

(18) Establish a fee schedule;

(19) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article; and

(20) Take all other actions necessary and proper to effectuate the purposes of this article.

(c) The board may:

(1) Contract with third parties to administer the examinations required under the provisions of this article;

(2) Sue and be sued in its official name as an agency of this state; and

(3) Confer with the Attorney General or his or her assistant in connection with legal matters and questions.

§30-8-5a.

Repealed.

Acts, 2010 Reg. Sess., Ch. 152.

§30-8-6. Rulemaking.

(a) The board shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this article, including:

(1) Standards and requirements for licenses, certificates and permits;

(2) Procedures for examinations and reexaminations;

(3) Requirements for third parties to prepare and/or administer examinations and reexaminations;

(4) Educational and experience requirements;

(5) The passing grade on the examinations;

(6) Standards for approval of courses and curriculum;

(7) Procedures for the issuance and renewal of licenses, certificates and permits;

(8) A fee schedule;

(9) A prescription drug formulary classifying those categories of oral drugs rational to the diagnosis and treatment of visual defects or abnormal conditions of the human eye and its appendages, which may be prescribed by licensees from Schedules III, IV and V of the Uniform Controlled Substances Act. The drug formulary may also include oral antibiotics, oral nonsteroidal anti-inflammatory drugs and oral carbonic anhydrase inhibitors;

(10) Requirements for prescribing and dispensing contact lenses that contain and deliver pharmaceutical agents that have been approved by the Food and Drug Administration as a drug;

(11) Continuing education requirements for licensees;

(12) The procedures for denying, suspending, revoking, reinstating or limiting the practice of licensees, certificate holders and permittees;

(13) Requirements for inactive or revoked licenses, certificates or permits;

(14) Requirements for an expanded scope of practice for those procedures that are taught at fifty percent of all accredited optometry schools; and

(15) Any other rules necessary to effectuate the provisions of this article.

(b) All of the board's rules in effect on July 1, 2010, shall remain in effect until they are amended or repealed, and references to provisions of former enactments of this article are interpreted to mean provisions of this article.

(c) The board shall promulgate procedural and interpretive rules in accordance with section eight, article three, chapter twenty-nine-a of this code.

§30-8-7. Fees; special revenue account; administrative fines.

(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the State Treasury designated the "West Virginia Board of Optometry Fund", which is continued. The fund is used by the board for the administration of this article. Except as may be provided in article one of this chapter, the board retains the amount in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.

(b) Any amount received as fines, imposed pursuant to this article, shall be deposited into the General Revenue Fund of the State Treasury.

§30-8-8. License to practice optometry.

(a) To be eligible for a license to engage in the practice of optometry, the applicant must:

(1) Be at least twenty-one years of age;

(2) Be of good moral character;

(3) Graduate from a school approved by the Accreditation Council on Optometric Education or successor organization;

(4) Pass an examination prescribed by the board;

(5) Complete an interview with the board;

(6) Not be addicted to the use of alcohol, drugs or other controlled substances;

(7) Not have been convicted of a felony in any jurisdiction within ten years preceding the date of application for license, which conviction has not been reversed; and

(8) Not have been convicted of a misdemeanor or felony in any jurisdiction if the offense for which he or she was convicted related to the practice of optometry, which conviction has not been reversed.

(b) A registration to practice issued by the board prior to July 1, 2010, shall for all purposes be considered a license issued under this article: Provided, That a person holding a registration issued prior to July 1, 2010, must renew pursuant to the provisions of this article.

§30-8-9. Scope of practice.

(a)  A licensee may:

(1) Examine, diagnose and treat diseases and conditions of the human eye and its appendage within the scope established in this article or associated rules;

(2) Administer or prescribe any drug for topical application to the anterior segment of the human eye for use in the examination, diagnosis or treatment of diseases and conditions of the human eye and its appendages: Provided, That the licensee has first obtained a certificate;

(3)(A) Administer or prescribe any drug from the drug formulary, as established by the board pursuant to section six of this article, for use in the examination, diagnosis or treatment of diseases and conditions of the human eye and its appendages: Provided, That the licensee has first obtained a certificate;

(B) New drugs and new drug indications may be added to the drug formulary by approval of the board;

(4) Administer epinephrine by injection to treat emergency cases of anaphylaxis or anaphylactic shock;

(5) Prescribe and dispense contact lenses that contain and deliver pharmaceutical agents and that have been approved by the Food and Drug Administration as a drug;

(6) Prescribe, fit, apply, replace, duplicate or alter lenses, prisms, contact lenses, orthoptics, vision training, vision rehabilitation;

(7) Perform the following procedures:

(A) Remove a foreign body from the ocular surface and adnexa utilizing a nonintrusive method;

(B) Remove a foreign body, external eye, conjunctival, superficial, using topical anesthesia;

(C) Remove embedded foreign bodies or concretions from conjunctiva, using topical anesthesia, not involving sclera;

(D) Remove corneal foreign body not through to the second layer of the cornea using topical anesthesia;

(E) Epilation of lashes by forceps;

(F) Closure of punctum by plug; and

(G) Dilation of the lacrimal puncta with or without irrigation;

(8) Furnish or provide any prosthetic device to correct or relieve any defects or abnormal conditions of the human eye and its appendages;

(9) Order laboratory tests rational to the examination, diagnosis, and treatment of a disease or condition of the human eye and its appendages;

(10) Use a diagnostic laser; and

(11) A licensee is also permitted to perform those procedures authorized by the board prior to January 1, 2010.

(b) A licensee may not:

(1) Perform surgery except as provided in this article or by legislative rule;

(2) Use a therapeutic laser;

(3) Use Schedule II controlled substances. However, an oral pharmaceutical certified licensee may prescribe hydrocodone and hydrocodone containing drugs for a duration of no more than three days;

(4) Treat systemic disease; or

(5) Present to the public that he or she is a specialist in surgery of the eye.

§30-8-10. Exceptions from licensure.

The following persons are exempt from licensure under this article:

(1) Persons licensed to practice medicine and surgery under article three of this chapter or osteopathy under article fourteen of this chapter; and

(2) Persons and business entities who sell or manufacture ocular devices in a permanently established place of business, who neither practice nor attempt to practice optometry.

§30-8-11. Issuance of license; renewal of license; renewal fee.

(a) A licensee shall annually or biennially on or before July 1, renew his or her license by completing a form prescribed by the board, paying the renewal fee and submitting any other information required by the board.

(b) The board shall charge a fee for renewal of a license, and a late fee for any renewal not paid by the due date.

(c) The board shall require as a condition of renewal of a license that each licensee complete continuing education.

(d) The board may deny an application for renewal for any reason which would justify the denial of an original application for a license.

§30-8-12. Temporary permits.

(a) Upon proper application and the payment of a fee, the board may issue, without examination, a temporary permit to engage in the practice of optometry in this state.

(b) If the permittee receives a passing score on the examination, a temporary permit expires thirty days after the permittee receives the results of the examination.

(c) If the permittee receives a failing score on the examination, the temporary permit expires immediately.

(d) An applicant under this subsection may only be issued one temporary permit. Upon the expiration of a temporary permit, a person may not practice as an optometrist until he or she is fully licensed under the provisions of this article. In no event may a permittee practice on a temporary permit beyond a period of ninety consecutive days.

(e) A temporary permittee under this section shall work under the supervision of a licensee, with the scope of such supervision to be defined by the board by legislative rule.

§30-8-13. License from another jurisdiction; license to practice in this state.

(a) The board may issue a license to practice to an applicant of good moral character who holds a valid license or other authorization to practice optometry from another jurisdiction, if the applicant demonstrates that he or she:

(1) Holds a license or other authorization to practice optometry in another state which requirements are substantially equivalent to those required in this state;

(2) Does not have charges pending against his or her license or other authorization to practice, and has never had a license or other authorization to practice revoked;

(3) Has not previously failed an examination for professional licensure in this state;

(4) Has paid the applicable fee;

(5) Has passed the examination prescribed by the board; and

(6) Has fulfilled any other requirement specified by the board.

(b) In its discretion, the board may interview and examine an applicant for licensing under this section. The board may enter into agreements for reciprocal licensing with other jurisdictions having substantially similar requirements for licensure.

§30-8-14. Prescriptive authority.

(a) A licensee may prescribe: (1) Topical pharmaceutical agents; (2) oral pharmaceutical agents that are included in the drug formulary established by the board pursuant to section six of this article or new drugs or new drug indications added by a decision of the board; and (3) contact lenses that contain and deliver pharmaceutical agents that have been approved by the Food and Drug Administration as a drug.

(b) An applicant must:

(1) Submit a completed application;

(2) Pay the appropriate fee;

(3) Show proof of current liability insurance coverage;

(4) Complete the board required training;

(5) Pass an examination; and

(6) Complete any other criteria the board may establish by rule.

§30-8-15. Administration of injectable pharmaceutical agents.

(a) A licensee may not administer pharmaceutical agents by injection, other than epinephrine to treat emergency cases of anaphylaxis or anaphylactic shock, unless the provisions of this section, along with any legislative rule promulgated pursuant to this section, have been met.

(b) Additional pharmaceutical agents by injection may be included in the rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code. These rules shall provide, at a minimum, for the following:

(1) Establishment of a course, or provide a list of approved courses, in administration of pharmaceutical agents by injection;

(2) Definitive treatment guidelines which shall include, but not be limited to, appropriate observation for an adverse reaction of an individual following the administration of a pharmaceutical agent by injection;

(3) A requirement that a licensee shall have completed a board approved injectable administration course and completed an American Red Cross or American Heart Association basic life-support training, and maintain certification in the same;

(4) Continuing education requirements for this area of practice;

(5) Reporting requirements for licensees administering pharmaceutical agents by injection to report to the primary care physician or other licensed health care provider as identified by the person receiving the pharmaceutical agent by injection;

(6) Reporting requirements for licensees administering pharmaceutical agents by injection to report to the appropriate entities;

(7) That a licensee may not delegate the authority to administer pharmaceutical agents by injection to any other person; and

(8) Any other provisions necessary to implement the provisions of this section.

(c) In no event may a licensee be granted authority under this section to administer a pharmaceutical agent by injection directly into the globe of the eye.

§30-8-16. Special volunteer license; civil immunity for voluntary services rendered to indigents.

(a) There is established a special volunteer license for optometrists who are retired or are retiring from the active practice of optometry and wish to donate their expertise for the care and treatment of indigent and needy patients in the clinical setting of clinics organized, in whole or in part, for the delivery of health care services without charge.

(b) The special volunteer license shall be issued by the board to optometrists licensed or otherwise eligible for licensure under this article without the payment of an application fee, license fee or renewal fee, and shall be issued for the remainder of the licensing period, and renewed consistent with the boards other licensing requirements.

(c) The board shall develop application forms for the special volunteer license provided in this section which shall contain the optometrist’s acknowledgment that:

(1) The optometrist’s practice under the special volunteer license will be exclusively devoted to providing optometrical care to needy and indigent persons in West Virginia;

(2) The optometrist will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation but may donate to the clinic the proceeds of any reimbursement, for any optometrical services rendered under the special volunteer license;

(3) The optometrist will supply any supporting documentation that the board may reasonably require; and

(4) The optometrist agrees to continue to participate in continuing education as required by the board for a special volunteer license.

(d) Any person engaged in the active practice of optometry in this state whose license is in good standing may donate their expertise for the care and treatment of indigent and needy patients pursuant to an arrangement with a clinic organized, in whole or in part, for the delivery of health care services without charge to the patient. Services rendered pursuant to an arrangement may be performed in either the office of the optometrist or the clinical setting.

(e) Any optometrist who renders any optometrical 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 license authorized under this section or pursuant to an arrangement with a clinic as authorized pursuant to subsection (d) 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 optometrical service at the clinic unless the act or omission was the result of the optometrist’s gross negligence or willful misconduct. In order for the immunity under this subsection to apply, before the rendering of any services by the optometrist at the clinic, there must be a written agreement between the optometrist and the clinic stating that the optometrist will provide voluntary uncompensated optometrical services under the control of the clinic to patients of the clinic before the rendering of any services by the optometrist 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.

(f) Notwithstanding the provisions of subsection (d) 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 optometrist rendering voluntary optometrical services at or for the clinic under a special volunteer license under this section or who renders such care and treatment pursuant to an arrangement with a clinic as authorized pursuant to subsection (d) of this section.

(g) For purposes of this section, "otherwise eligible for licensure" means the satisfaction of all the requirements for licensure in this article except the fee requirements.

(h) Nothing in this section may be construed as requiring the board to issue a special volunteer license to any optometrist whose license is or has been subject to any disciplinary action or to any optometrist who has surrendered a license or caused such license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her license, or who has elected to place a license in inactive status in lieu of having a complaint initiated or other action taken against his or her license, or who has been denied a license.

(i) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any optometrist 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 optometrist who holds a special volunteer license or who renders such care and treatment pursuant to an arrangement with a clinic as authorized pursuant to subsection (d) of this section.

§30-8-17. Optometric business entities.

(a) Only licensees may own a business entity that practices optometry.

(b) A licensee may be employed by the business entity.

(c) A business entity shall cease to engage in the practice of optometry when it is not wholly owned by licensees: Provided, That the personal representative of a deceased shareholder shall have a period, not to exceed eighteen months from the date of such shareholder's death, to dispose of such shares.

§30-8-18. Complaints; investigations; due process procedure; grounds for disciplinary action.

(a) The board may upon its own motion based on credible information or based upon the quarterly report from the Board of Pharmacy as required by §60A-9-1 et seq. of this code shall upon the written complaint of any person cause an investigation to be made to determine whether grounds exist for disciplinary action under this article or the legislative rules of the board.

(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the complaint to the licensee, certificate holder, or permittee.

(c) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the licensee or permittee has violated §30-8-18(g) of this code or rules promulgated pursuant to this article.

(d) Upon a finding that probable cause exists that the licensee or permittee has violated §30-8-18(g) of this code or rules promulgated pursuant to this article, the board may enter into a consent decree or hold a hearing for the suspension or revocation of the license, certificate, or permit or the imposition of sanctions against the licensee, certificate holder, or permittee. Any hearing shall be held in accordance with the provisions of this article, and the provisions of §29A-5-1 and §29A-6-1 et seq. of this code.

(e) Any member of the board or the executive secretary of the board may issue subpoenas and subpoenas duces tecum on behalf of the board to obtain testimony and documents to aid in the investigation of allegations against any person regulated by the article.

(f) Any member of the board or its executive secretary may sign a consent decree or other legal document on behalf of the board.

(g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend, or revoke the license, certificate, or permit of, impose probationary conditions upon or take disciplinary action against, any licensee, certificate holder, or permittee for any of the following reasons once a violation has been proven by a preponderance of the evidence:

(1) Obtaining a license, certificate, or permit by fraud, misrepresentation or concealment of material facts;

(2) Being convicted of a felony or other crime involving moral turpitude;

(3) Being guilty of unprofessional conduct which placed the public at risk;

(4) Intentional violation of a lawful order;

(5) Having had an authorization to practice optometry revoked, suspended, other disciplinary action taken, by the proper authorities of another jurisdiction;

(6) Having had an application to practice optometry denied by the proper authorities of another jurisdiction;

(7) Exceeded the scope of practice of optometry;

(8) Aiding or abetting unlicensed practice;

(9) Engaging in an act while acting in a professional capacity which has endangered or is likely to endanger the health, welfare, or safety of the public; or

(10) False and deceptive advertising; this includes, but is not limited to, the following:

(A) Advertising “free examination of eyes”, or words of similar import and meaning; or

(B) Advertising frames or mountings for glasses, contact lenses, or other optical devices which does not accurately describe the same in all its component parts.

(h) For the purposes of §30-8-18(g) of this code disciplinary action may include:

(1) Reprimand;

(2) Probation;

(3) Administrative fine, not to exceed $1,000 per day per violation;

(4) Mandatory attendance at continuing education seminars or other training;

(5) Practicing under supervision or other restriction;

(6) Requiring the licensee or certificate holders to report to the board for periodic interviews for a specified period of time; or

(7) Other corrective action considered by the board to be necessary to protect the public, including advising other parties whose legitimate interests may be at risk.

§30-8-19. Procedures for hearing; right of appeal.

(a) Hearings shall be governed by the provisions of section eight, article one of this chapter.

(b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.

(c) If the hearing is conducted by an administrative law judge, at the conclusion of a hearing he or she shall prepare a proposed written order containing findings of fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the board so directs. The board may accept, reject or modify the decision of the administrative law judge.

(d) Any member or the executive secretary of the board has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.

(e) If, after a hearing, the board determines the licensee, certificate holder or permittee has violated the provisions of this article or the board's legislative rules, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.

§30-8-20. Judicial review.

Any licensee, certificate holder or permittee adversely affected by a decision of the board entered after a hearing may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance with article six, chapter twenty-nine-a of this code.

§30-8-21. Criminal proceedings; penalties.

(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a licensee, certificate holder or permittee has committed a criminal offense under this article, the board may bring its information to the attention of an appropriate law-enforcement official.

(b) A person violating section one of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $1,000 nor more than $5,000 or confined in jail not more than six months, or both fined and confined.

§30-8-22. Single act evidence of practice.

In any action brought or in any proceeding initiated under this article, evidence of the commission of a single act prohibited by this article is sufficient to justify a penalty, injunction, restraining order or conviction without evidence of a general course of conduct.

§30-8A-1. Definitions.

As used in this article:

(a) “Contact Lens” means a lens placed directly on the surface of the eye, regardless of whether it is intended to correct a visual defect. Contact lens includes, but is not limited to, a cosmetic, therapeutic, or corrective lens.

(b) "Board" means the West Virginia Board of Optometry.

(c) "Diagnostic contact lens" means a contact lens used to determine a proper contact lens fit.

(d) "Direct supervision" means supervision that occurs when a licensee is actually present in the building.

(e) "Examination and evaluation"means an assessment of the ocular health and visual status of a patient that does not consist solely of objective refractive data or information generated by an automated refracting device or other automated testing device for the purpose of writing a valid prescription.

(f) "Licensee" means a person who is authorized to engage in the practice of optometry under article eight, chapter thirty of this code.

(g) "Special requirements" means the type of lens design, lens material, tint, or lens treatments.

(h) "Spectacles" means an optical instrument or device worn or used by an individual that has one or more lenses designed to correct or enhance vision to address the visual needs of the individual wearer. This includes spectacles that may be adjusted to achieve different types or levels of visual correction or enhancement.

(i) “Valid prescription” means one of the following, as applicable:

(1) For a contact lens, a written or electronic order by a licensee who has conducted an examination and evaluation of a patient and has determined a satisfactory fit for the contact lens based on an analysis of the physiological compatibility of the lens or the cornea and the physical fit and refractive functionality of the lens on the patient's eye. To be a valid prescription under this subdivision, it shall at least include the following:

(A) A statement that the prescription is for a contact lens;

(B) The contact lens type or brand name, or for a private label contact lens, the name of the manufacturer, trade name of the private label brand, and, if applicable, trade name of the equivalent or similar brand;

(C) All specifications necessary to order and fabricate the contact lens, including, if applicable, the power, material, base curve or appropriate designation, and diameter;

(D) The quantity of contact lenses to be dispensed;

(E) The number of refills;

(F) Specific wearing instructions and contact lens disposal parameters;

(G) The patient's name;

(H) The date of the examination and evaluation;

(I) The date the prescription is originated;

(J) The prescribing licensee's name, address, and telephone number;

(K) The prescribing licensee's written or electronic signature, or other form of authentication; and

(L) An expiration date of not less than one year from the date of the examination and evaluation or a statement of the reasons why a shorter time is appropriate based on the medical needs of the patient.

(2) For spectacles, a written or electronic order by a licensee who has examined and evaluated a patient. To be a valid prescription under this subdivision, it shall include at least the following:

(A) A statement that the prescription is for spectacles;

(B) As applicable and as specified for each eye, the lens power including the spherical power, cylindrical power including axis, prism, and power of the multifocal addition;

(C) Any special requirements, the omission in the opinion of the prescribing licensee, would adversely affect the vision or ocular health of the patient;

(D) The patient's name;

(E) The date of the examination and evaluation;

(F) The date the prescription is originated;

(G) The prescribing licensee's name, address, and telephone number;

(H) The prescribing licensee's written or electronic signature, or other form of authentication; and

(I) An expiration date of not less than one year from the date of the examination and evaluation or a statement of the reasons why a shorter time is appropriate based on the medical needs of the patient.

§30-8A-2. Prescriptions.

(a) Except as otherwise provided in subsection (b), spectacles and contact lenses are medical devices and are subject to the requirements of this article.

(b) The requirements of this article do not apply to the following:

(1) A diagnostic contact lens that is used by a licensee during an examination and evaluation;

(2) An optical instrument or device that is not intended to correct or enhance vision; or

(3) An optical instrument or device that is sold without consideration of the visual status of the individual who will use the optical instrument or device.

§30-8A-3. Prohibited Actions.

A person may not:

(1) Employ objective or subjective physical means to determine the accommodative or refractive condition; the range, power of vision or muscular equilibrium of the human eye or prescribe spectacles or contact lenses based on that determination unless that activity is performed by a licensee or performed by a person under direct supervision.

(2) Dispense, give, or sell spectacles or contact lenses unless dispensed, given, or sold pursuant to a valid prescription.

(3) Use an automated refractor or other automated testing device to generate objective refractive data unless that use is under direct supervision.

§30-8A-4. Enforcement.

(a) The board shall enforce the provisions of this article.

(b) The board may promulgate a legislative rule in accordance with the provisions of article three, chapter twenty-nine-a of this code regarding the implementation of this article.

(c) The board is not required to wait until harm to human health has occurred to initiate an investigation under this section.

(d) If a person is in violation of this article and is licensed by another board, the board shall refer to the appropriate licensing board to enforce the provisions of their article.

§30-8A-5. Criminal Penalty for violation.

A person violating this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $1,000 nor more than $5,000.

§30-9-1. License required to practice.

To protect the public interest in receiving accurate and reliable financial information and assurance, certified public accountants, public accountants, and accounting firms are required to be licensed as provided in this article.

§30-9-2. Definitions.

As used in this article, the following words and terms have the following meanings, unless the context or associated language clearly indicates otherwise:

(1) “Affiliated entity” means an entity that controls, is controlled by, or is under common control with, a firm. For purposes of this definition, an entity controls another entity if the entity directly or indirectly or acting in concert with one or more other affiliated entities, or through one or more subsidiaries, owns, controls, holds with power to vote, or holds proxies representing, more than fifty percent of the voting interest in such entity.

(2) “Assurance” means any act or action, whether written or oral, expressing an opinion or conclusion about the reliability of a financial statement or about its conformity with any financial accounting standards.

(3) “Attest services” means providing the following services:

(A)  Any audit or other engagement to be performed in accordance with the statements on Auditing Standards (SAS);

(B)  Any review of a financial statement to be performed in accordance with the statements on Standards for Accounting and Review Services (SSARS);

(C)  Any examination of prospective financial information to be performed in accordance with applicable Statements on Standards for Attestation Engagements (SSAE);

(D)  Any engagement to be performed in accordance with the Auditing Standards of the Public Company Accounting Oversight Board (PCAOB); or

(E) Any examination, review or agreed upon procedures engagement to be performed in accordance with the statements on Standards for Attestation Engagements (SSAE), other than an examination described in paragraph (C) of this subdivision.

(4) “Audit” means expressing an opinion about the fairness of presentation of financial statements in accordance with the statements on Auditing Standards.

(5) “Authorization” means an authorization issued pursuant to this article that entitles a permit holder or an individual practitioner to perform attest or compilation services.

(6) “Board” means the West Virginia Board of Accountancy.

(7) “Business entity” means any corporation, partnership, limited partnership, limited liability partnership, professional limited liability partnership, limited liability company, professional limited liability company, joint venture, business trust or any other form of business organization. The term “business entity” includes a firm.

(8) “Certificate” means a certificate as a certified public accountant issued or renewed by the board pursuant to this article or corresponding provisions of prior law.

(9) “Certified public accountant” or “CPA” means the holder of a certificate.

(10) “Client” means a person or entity that agrees with a licensee or licensee’s employer to receive any professional service.

(11) “Commission” means compensation, except a referral fee, for recommending or referring any product or service to be supplied by another person.

(12) “Compilation services” means providing a service performed in accordance with the statements on Standards for Accounting and Review Services that presents, in the form of a financial statement, information that is the representation of management without an expression of assurance on the statement: Provided, That this definition does not apply to the use of the term “compilation” in section thirty-one of this article.

(13) “Contingent fee” means a fee established for the performance of any service pursuant to an arrangement in which no fee will be charged unless a specified finding or result is attained, or in which the amount of the fee is otherwise dependent upon the finding or result of the service. A fee fixed by a court, taxing authority or other public authority is not a contingent fee.

 (14) “Examination”, when used with reference to prospective financial statements, means expressing an opinion about the fairness of presentation of financial information in accordance with the statements on Standards for Attestation Engagements.

(15) “Financial statement” means a writing or other presentation, including accompanying notes, which presents, in whole or in part, historical or prospective financial position, results of operations or changes in financial position of any person, corporation, partnership or other entity.

(16) “Firm” means any business entity, including, but not limited to, accounting corporations and professional limited liability companies, in which two or more certified public accountants or public accountants hold an ownership or membership interest, in terms of the financial interests and voting rights of all partners, officers, shareholders, members or managers, and the primary business activity of which is the provision of professional services to the public by certified public accountants or public accountants.

(17) “Firm ownership requirements” means, with respect to:

(A) Any professional limited liability company organized pursuant to article thirteen, chapter thirty-one-b of this code, consisting of one or more licensed certified public accountants or licensed public accountants;

(B) Any other firm where:

(i) A simple majority of ownership of the firm, in terms of financial interests and voting rights of all partners, officers, shareholders, members or managers, belongs either to:

(I) Certified public accountants holding a certificate under section twelve of this article or the equivalent provision of another state; or

(II) Public accountants who have met the continuing professional education requirements of subsection (b), section twelve of this article and who are not subject to the exemption or limitation set forth in subdivisions (1) or (2), subsection (b), section twelve of this article or similar provisions of another state.

(ii) All owners of the firm who are not certified public accountants or public accountants are active participants in the firm or in affiliated entities.

(18) “Foreign” means any country other than the United States.

(19) “Good moral character” means lack of a history of dishonesty or felonious activity.

(20) “Home office” means the client’s office address.

(21) “Individual practitioner” means a certified public accountant or a public accountant who offers professional services to the public but who does not practice in a firm.

(22) “License” means a certificate, permit, registration or authorization.

(23) “Licensee” means the holder of a license.

(24) “Manager” means a manager of a professional limited liability company.

(25) “Member” means a member of a professional limited liability company.

(26) “Nonlicensee” means a person or business entity that does not hold a license.

(27) “Out-of-state certificate” means a valid certificate as a certified public accountant or equivalent designation issued or renewed under the laws of another state: Provided, That “out-of-state certificate” does not include any certificate as a certified public accountant or equivalent designation that was issued or renewed solely by virtue of a holder’s prior status as a public accountant or its equivalent in the state of issuance and not by virtue of the holder’s having met the certification requirements of the state of issuance.

(28) “Out-of-state permit” means a valid permit as a firm of certified public accountants or another designation equivalent to a permit issued or renewed by the board and that is issued or renewed under the laws of another state.

(29) “Peer Review” means a study, appraisal or review of one or more aspects of the professional work of a licensee by a person who holds a certificate or an out-of-state certificate and who is not affiliated with the licensee being reviewed.

(30) “Permit” means a permit issued to a firm pursuant to this article.

(31) “Principal place of business” means the licensee’s office location in the state where the licensee holds a certificate or registration.

(32) “Professional services” means those services that involve the specialized knowledge and skills of a certified public accountant or a public accountant delivered by any means, including but not limited to, in person, by mail, telephone or by electronic means.

(33) “Public accountant” means a person holding a registration who is not a certified public accountant.

(34) “Referral fee” means compensation for recommending or referring any service of a licensee to any person.

(35) “Registration” means a registration as a public accountant issued by the board pursuant to prior law governing the registration of public accountants and renewed by the board pursuant to this article.

(36) “Report”, when used with reference to financial statements, means an opinion or disclaimer of opinion or other form of language or representation which states or implies any form of assurance or denial of assurance.

(37) “Rule” means any rule proposed for legislative approval by the board pursuant to this article.

(38) “State” means any state of the United States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands or Guam.

(39) “Substantial equivalency” or “substantially equivalent” means or refers to a determination by the board or its designee that the education, examination and experience requirements contained in the statutes or rules of another state are comparable to or exceed the education, examination and experience requirements contained in the Uniform Accountancy Act, or that an individual certified public accountant’s education, examination and experience qualifications are comparable to or exceed the education, examination and experience requirements contained in the Uniform Accountancy Act.

(40) “Substantial equivalency practitioner” means any individual whose principal place of business is not in this state, who holds a certificate from another state and has complied with the provisions of section sixteen of this article.

(41) “Uniform Accountancy Act” means the Uniform Accountancy Act, fifth edition, revised (July 2007), jointly published by the American Institute of Certified Public Accountants and the National Association of State Boards of Accountancy.

§30-9-3. Board of accountancy; appointment; terms, qualifications of members; removal of members; compensation of members; civil liability protection for members.

(a) The West Virginia board of accountancy is hereby continued.

(b) (1) Commencing with the board terms beginning July 1, 2001, the board shall consist of seven members appointed for terms of three years by the Governor with the advice and consent of the Senate. Five members must be certified public accountants; one member must be a public accountant so long as twenty-five or more public accountants are registered by the board, but if there are fewer than twenty-five public accountants registered by the board, then the member may be either a public accountant or a certified public accountant; and one member must be a citizen member who is a resident of this state, who is not licensed under the provisions of this article and who also is not a bookkeeper, enrolled agent or a person who provides or offers to provide to the public any bookkeeping, tax preparation, financial advisory or insurance service: Provided, That the members of the board in office on July 1, 2001, shall continue to serve until their respective terms expire.

(2) Each licensed member of the board, at the time of his or her appointment, must have held a license in this state for a period of not less than five years immediately preceding the appointment and each member must be a resident of this state during the appointment term.

(3) Each appointment of a public accountant, whether for a full term or to fill a vacancy, must be made by the Governor from among three nominees selected by the West Virginia Public Accountants Association and each appointment of a certified public accountant, whether for a full term or to fill a vacancy, must be made by the Governor from among three nominees selected by the West Virginia Society of Certified Public Accountants: Provided, That when the appointment of a certified public accountant is to fill the seat held on July 1, 2001, by a public accountant, then the appointment, whether for a full term or to fill a vacancy, must be made by the Governor from among three nominees selected by the West Virginia Public Accountants Association. When the appointment is for a full term, the nominations must be submitted to the Governor not later than eight months prior to the date on which the appointment will become effective. When the appointment is to fill a vacancy, the nominations must be submitted to the Governor within ten days after a request for the nominations has been made by the Governor to the president of the West Virginia Society of Certified Public Accountants or president of the West Virginia Public Accountants Association. If the society or the association fails to submit to the Governor nominations for an appointment in accordance with the requirements of this section, the Governor may make the appointment without the nominations.

(c) No member may serve more than two consecutive full terms, and any member having served two full terms may not be appointed for one year after completion of his or her second full term. A member shall continue to serve until his or her successor has been appointed and qualified.

(d) If a board member is unable to complete a term, the Governor shall appoint a person of similar qualifications to complete the unexpired term: Provided, That if the board member is a certified public accountant or public accountant, the Governor shall appoint a person from any nominees submitted pursuant to subdivision (3), subsection (b) of this section. Each vacancy occurring on the board must be filled by appointment within sixty days after the vacancy is created.

(e) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.

(f) Any member of the board shall immediately and automatically forfeit his or her membership if he or she has his or her certificate or registration suspended or revoked by the board, is convicted of a felony under the laws of any state or the United States, or becomes a nonresident of this state.

(g) Each member of the board shall receive compensation and expense reimbursement in accordance with section eleven, article one of this chapter.

(h) Board members are exempt from civil liability for any decision made or any act done in good faith in the performance of any duty or the exercise of any power granted under this article.

§30-9-4. Powers of the board.

The board has all the powers set forth in article one of this chapter, and in addition may:

(1) Sue and be sued in its official name as an agency of this state;

(2) Hire, fix the compensation of and discharge the employees necessary for the administration of this article;

(3) Examine and determine the qualifications of any applicant for a license;

(4) Issue, renew, deny, suspend, revoke or reinstate licenses and take disciplinary action against licensees;

(5) Investigate alleged violations of the provisions of this article, reasonable rules promulgated hereunder and orders and final decisions of the board;

(6) Conduct hearings upon charges calling for the revocation or suspension of a license or take disciplinary action against a licensee, firm or substantial equivalency practitioner;

(7) Cooperate with the appropriate authorities in other states in the investigation and enforcement of violations of this article or comparable acts of other states;

(8) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code; and

(9) Take all other actions necessary and proper to effectuate the purposes of this article.

§30-9-5. Rule-making authority.

(a) The board shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article, including, but not limited to, the following:

(1) The education required of an applicant;

(2) The experience required of an applicant;

(3) The examination administered under this article;

(4) Issuing or renewing a certificate, registration, permit or authorization;

(5) Denying, suspending, revoking, or reinstating a certificate, registration, permit or authorization;

(6) The conduct of investigations;

(7) Firm ownership requirements;

(8) Accounting corporations;

(9) Substantial equivalency requirements;

(10) Continuing professional education requirements for licensees, including exemptions;

(11) Peer review requirements;

(12) Professional conduct requirements;

(13) Identifying professional services required to be performed in accordance with the applicable statements on standards;

(14) Use of the titles "certified public accountant," "CPA," "public accountant" and "PA";

(15) Use of commissions, referral fees and contingent fees;

(16) Fees for the issuance and renewal of a certificate, registration, permit or authorization and other fees authorized by this article; and

(17) Other rules the board considers necessary and proper for implementing the provisions of this article.

(b) All rules in effect on July 1, 2001, will remain in effect until they are superseded.

§30-9-6. Fees; special fund; administrative fines.

(a) All fees and other moneys, except administrative fines, received by the board must be deposited in the separate special fund which has been established for the board in the State Treasury and must be used for the administration of this article. Except as may be provided in section eleven, article one of this chapter, the board shall retain the amounts in the special fund from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.

(b) Any amounts received as administrative fines imposed pursuant to this article must be deposited into the General Revenue Fund of the State Treasury.

§30-9-7. Issuance of certificate; certificates issued prior to the first day of July, two thousand one.

(a) The board shall issue an original certificate to an applicant who demonstrates that:

(1) He or she has met one of the following qualifications for a certificate:

(A) He or she meets the qualifications for a certificate set forth in section eight of this article;

(B) He or she holds an out-of-state certificate and meets the requirements of section nine of this article;

(C) He or she holds an out-of-state certificate, does not meet the requirements of section nine of this article but does meet the requirements of section ten of this article; or

(D) He or she holds a substantially equivalent foreign designation and meets the requirements of section eleven of this article.

(2) He or she has submitted an application, in writing, on a form prescribed by the board: Provided, That the application must require an applicant to list all states in which he or she has applied for or holds an out-of-state certificate and any past denial, revocation or suspension of an out-of-state certificate;

(3) He or she is trustworthy and of good moral character;

(4) He or she has paid the appropriate fee prescribed by the board;

(5) He or she has submitted to a state and national criminal history record check, as set forth in this subdivision.

(A) This requirement is found not to be against public policy.

(B) The criminal history record check shall be based on fingerprints submitted to the West Virginia State Police or its assigned agent for forwarding to the Federal Bureau of Investigation.

(C) The applicant shall meet all requirements necessary to accomplish the state and national criminal history record check, including:

(i) Submitting fingerprints for the purposes set forth in this subsection; and

(ii) Authorizing the board, the West Virginia State Police and the Federal Bureau of Investigation to use all records submitted and produced for the purpose of screening the applicant for a certificate.

(D) The results of the state and national criminal history record check may not be released to or by a private entity except:

(i) To the individual who is the subject of the criminal history record check;

(ii) With the written authorization of the individual who is the subject of the criminal history record check; or

(iii) Pursuant to a court order.

(E) The criminal history record check and related records are not public records for the purposes of chapter twenty-nine-b of this code.

(F) The applicant shall pay the actual costs of the fingerprinting and criminal history record check.

(G) The board may propose rules to implement the provisions of this section for legislative approval in accordance with article three, chapter twenty-nine-a of this code. The rules must be consistent with standards established by the Federal Bureau of Investigation and the National Crime Prevention and Privacy Compact as authorized by 42 U. S. C. §14611, et seq.

(b) Certificates will initially be issued for a period to expire on June 30 following the date of issue.

(c) A certificate issued by the board prior to July 1, 2001, will for all purposes be considered a certificate issued under this section: Provided, That a person holding a certificate issued prior to July 1, 2001, must renew the certificate pursuant to section twelve of this article.

§30-9-8. Education, examination and experience certificate requirements.

The board shall issue a certificate to an applicant of good moral character who meets the following requirements:

(1) At least one hundred fifty semester hours of college education including a baccalaureate or higher degree conferred by a college or university, the total education program to include an accounting concentration or equivalent, as determined by the board to be appropriate;

(2) Passage of the uniform certified public accountant examination published by the American institute of certified public accountants or its successor and any additional examination required by the board by rule that tests the applicant's knowledge of subjects related to the practice of accounting: Provided, That before applying for the examination required by this subsection, an applicant is required to have met the baccalaureate degree requirement but not the one hundred fifty semester hour requirement of subsection (1) of this section; and

(3) At least one year of experience in providing any type of service or advice involving the use of accounting, attest, compilation, management advisory, financial advisory, tax or consulting skills. The experience requirement may be satisfied by employment in private practice, government, industry, not-for-profit organization, academia or public practice. An applicant's experience must be verified by a licensee and must meet requirements specified by rule.

§30-9-9. Substantial equivalency certificate requirements.

The board shall issue a certificate to an applicant who holds a valid out-of-state certificate if the state of issuance extends similar privileges to holders of certificates under circumstances similar to those described in this section and if the board determines that:

(1) The state of issuance of the out-of-state certificate has certified public accountant certification requirements that are substantially equivalent to the certified public accountant certification requirements of the uniform accountancy act; or

(2) The applicant has individual qualifications that are substantially equivalent to the certified public accountant certification requirements of the uniform accountancy act.

§30-9-10. Not substantially equivalent certificate requirements.

The board shall issue a certificate to an applicant of good moral character who holds a valid out-of-state certificate but who does not qualify for a certificate under the provisions of section nine of this article if the applicant meets the education, experience, examination and continuing education requirements specified by the board by rule.

§30-9-11. Foreign designation certificate requirements.

The board shall issue a certificate to an applicant of good moral character who holds a foreign designation in public accountancy if:

(1) The foreign authority that granted the designation regulates the practice of public accountancy and allows a person holding a certificate issued by this state to obtain the foreign authority's comparable designation; and

(2) The applicant meets the education, examination, experience and continuing education requirements specified by the board by rule.

§30-9-12. Certificate renewal; conditions of renewal.

(a) The board shall renew a certificate for a one-year period beginning on July 1, of each year after its issuance in accordance with renewal procedures and fees specified by rule: Provided, That an applicant for renewal of a certificate shall list on his or her application all states and foreign jurisdictions in which he or she has applied for or held an out-of-state certificate or foreign designation and any denial, revocation or suspension of an out-of-state certificate or foreign designation.

(b) The board shall require as a condition for the renewal of a certificate that each certified public accountant participate in continuing professional education in accordance with the requirements specified by rule, subject to the following exemptions and limitations:

(1) The board shall by rule exempt from the continuing professional education requirements set forth in this subsection any certified public accountant who does not perform or offer to perform any professional service to the public, either directly or indirectly through his or her employer.

(2) Any certified public accountant receiving the exemption from continuing professional education requirements must place the word "inactive" adjacent to his or her "CPA" title on any business card, telephone directory listing, letterhead or any other similar document or device, with the exception of the licensee's certificate on which the "CPA" title appears: Provided, That a certified public accountant receiving the exemption from continuing professional education requirements who has completely discontinued his or her performance of professional services, who has no active management or supervisory responsibilities in a firm, and who is at least sixty-two years of age is not required to place the word "inactive" or any other word adjacent to his or her "CPA" title on any business card, telephone directory listing, letterhead or any other similar document or device.

(3) The board may by rule phase in continuing professional education requirements over a period of three years for any certified public accountant who, as of July 1, 2001, has not been subject to continuing professional education requirements and who subsequently elects to perform or offers to perform any professional service to the public during a subsequent certificate renewal period within the three-year phase-in period.

§30-9-13. Duty to inform board of denials, suspensions, revocations, limitations.

Each licensee must notify the board, within thirty days of its occurrence, of any denial, suspension or revocation of or any limitation placed on a license or out-of-state certificate.

§30-9-14. Holder of out-of-state certificate establishing principal place of business in state.

A holder of an out-of-state certificate who intends to establish his or her principal place of business in this state must first apply for the issuance of a certificate.

§30-9-15. Public accountants.

A person who on July 1, 2001, holds a registration as a public accountant issued under prior law is entitled to have the registration renewed under the same terms, upon fulfillment of the same continuing professional education requirements, on the same renewal schedule and subject to the same restrictions and the payment of the same fees that are required for the renewal of a certificate under section twelve of this article. Any registration not so renewed will expire on June 30, 2002.

§30-9-16. Substantial equivalency practice privileges.

(a) An individual whose principal place of business is not in this state and who holds an out-of-state certificate has all the rights and privileges of a certificate holder of this state without the need to obtain a certificate if:

(1) The state that issued the out-of-state certificate has certification requirements that are substantially equivalent to the certification requirements of the Uniform Accountancy Act; or

(2) The individual holds a valid license as a certified public accountant from any state which the National Association of State Boards of Accountancy National Qualification Appraisal Service has not verified to be in substantial equivalence with the CPA licensure requirements of the Uniform Accountancy Act and the individual has obtained from the National Association of State Boards of Accountancy National Qualification Appraisal Service verification that his or her CPA qualifications are substantially equivalent to the CPA licensure requirements of the Uniform Accountancy Act. Any individual who qualifies for practice privileges pursuant to this subdivision before January 1, 2012, and who passed the uniform CPA examination and holds a valid license issued by any other state is exempt from the education requirement in the Uniform Accountancy Act for purposes of this section.

(b) An individual who offers or renders professional services under this section shall be granted practice privileges in this state, and no notice, fee, or other submission is required of any such individual. Such an individual is subject to the requirements in subsection (c) of this section.

(c) (1) Any individual performing or offering to perform any services in the state as a substantial equivalency practitioner and the firm which employs that out-of-state certificate holder are simultaneously subject to the jurisdiction of the board concerning all matters within the scope of this article and are required to comply with the provisions of this article and applicable rules.

(2) The state board of accountancy of the state of issuance of any substantial equivalency practitioner's certificate is appointed as his or her agent upon which process may be served in an action or proceeding by the board.

(d) In the event the certificate from the state of the individual's principal place of business is no longer valid, the individual will cease offering or rendering professional services in this state individually and on behalf of a firm.

(e) Subject to the provisions of subsection (f) of this section, an individual who qualifies for the practice privileges under this section may only perform any of the following services, for any entity with its home office in this state, through a firm which has obtained a permit issued under section seventeen of this article and an authorization issued under section nineteen of this article:

(1) A financial statement audit or other engagement to be performed in accordance with the statements on Auditing Standards;

(2) An examination of prospective financial information to be performed in accordance with the statements on Standards for Attestation Engagements; or

(3) An engagement to be performed in accordance with the Auditing Standards of the Public Company Accounting Oversight Board.

(f) An individual practitioner who is also a substantial equivalency practitioner may provide the services set out in subsection (e) of this section without obtaining a permit issued under section seventeen of this article, but must obtain the authorization issued under section nineteen of this article.

(g) A certificate holder of this state offering or rendering services or using their CPA title in another state is subject to disciplinary action in this state for an act committed in another state for which the certificate holder would be subject to discipline in that other state.

(h) The board shall investigate any complaint made by the board of accountancy of another state.

§30-9-17. Issuance and renewal of permits.

(a) The board shall grant or renew permits to firm applicants that demonstrate their qualifications in accordance with this section.

(b) Firms meeting the following criteria must hold a permit issued under this section:

(1) Any firm with an office in this state performing attest or compilation services;

(2) Any firm with an office in this state that uses the title "CPA" or "CPA firm"; or

(3) Any firm that does not have an office in this state but performs attest services described in subdivisions (A), (C) or (D), subsection (3), section two of this article for a client having its home office in this state.

(c) A firm that does not have an office in this state may perform services described in subdivision (B), subsection (3), section two of this article, or subsection (12), section two of this article, for a client having its home office in this state and may use the title "CPA" or "CPA firm" without a permit issued under this section only if it meets firm ownership requirements and is undergoing a peer review program that conforms with applicable rules, and performs the services through an individual with practice privileges under section sixteen of this article.

(d) A firm that does not have an office in this state and does not perform attest services or compilation services for a client having its home office in this state may perform other professional services while using the title "CPA" or "CPA firm" in this state without a permit issued under this section only if it performs the services through an individual with practice privileges under section sixteen of this article: Provided, That the firm may lawfully perform the services in the state where the individuals with practice privileges have their principal place of business.

(e) Applicants for a permit must demonstrate that:

(1) Each partner, officer, shareholder, member or manager of the firm whose principal place of business is in this state and who performs or offers to perform professional services in this state holds a certificate or a registration; and

(2) The firm meets firm ownership requirements.

(f) An application for the issuance of a permit must be made in the form specified by the board by rule and must include the following information:

(1) The names of all partners, officers, shareholders, members or managers of the firm whose principal place of business is in this state;

(2) The location of each office of the firm within this state and the name of the certified public accountant or public accountant in charge of each office; and

(3) Any issuance, denial, revocation or suspension of an out-of-state permit.

(g) Permits will initially be issued for a period to expire on June 30 following the date of issue.

(h) The board shall renew a permit for a one-year period beginning on July 1, of each year after initial issuance in accordance with the requirements for initial issuance of a permit in this section.

(i) The board shall charge an application fee for the initial issuance or renewal of a permit in an amount specified by rule.

§30-9-18. Notification of changes in firm ownership; revocation of permit.

(a) A permit holder must notify the board in writing, within thirty days after its occurrence, of any change in the identities of partners, officers, shareholders, members or managers whose principal place of business is in this state, any change in the number or location of offices within this state, any change in the identity of the persons in charge of those offices, and any issuance, denial, revocation or suspension of a permit or equivalent designation by any other state.

(b) The board shall suspend or revoke the permit of any firm that ceases to meet firm ownership requirements due to changes in firm ownership or personnel due to the death or retirement of a partner, officer, shareholder, member or manager and that fails to take corrective action in the manner and during the time period specified by rule.

§30-9-19. Issuance and renewal of authorizations.

(a) Commencing with July 1, 2001, no person or business entity may provide attest or compilation services without having first obtained an authorization issued by the board. An applicant may apply to provide attest services or compilation services or both. This requirement does not apply to individuals performing attest or compilation services based on the practice privilege under section sixteen of this article except as required under subsection (e) of that section, or to business entities performing attest or compilation services that are not required to obtain a permit under subsections (c) or (d), section seventeen of this article. Any substantial equivalency practitioner who issues a compilation report as an individual practitioner or on behalf of a business entity may do so without obtaining an authorization under this section so long as such individual does so in accordance with the requirements set out in subdivisions (1) and (2), subsection (f) of this section.

(b) Applications for the issuance of authorizations must be made in the form specified by the board by rule.

(c) Authorizations will initially be issued for a period to expire on June 30 following the date of initial issuance.

(d) The board shall issue an authorization to a permit holder that demonstrates that:

(1) Any certified public accountant, public accountant or substantial equivalency practitioner who signs or authorizes someone to sign an attest or compilation report on behalf of the permit holder meets the competency requirements set forth in the professional standards for those services specified by rule;

(2) All attest and compilation services rendered by the permit holder in this state are verified by a certified public accountant, substantial equivalency practitioner or a public accountant; and

(3) The permit holder is undergoing a peer review program that conforms with applicable rules.

(e) A firm may simultaneously apply for the issuance or renewal of a permit and the issuance or renewal of an authorization by demonstrating that the firm meets the requirements of section seventeen of this article and subsection (d) of this section.

(f) The board shall issue an authorization to an individual practitioner who demonstrates that he or she:

(1) Signs an attest or compilation report as a certified public accountant, public accountant or substantial equivalency practitioner, as applicable and meets the competency requirements set forth in the professional standards for those services specified by rule; and

(2) Is undergoing a peer review program that conforms with applicable rules.

(g) The board shall renew an authorization for a one year period beginning on July 1, of each year after initial issuance in accordance with the requirements for initial issuance of an authorization in this section.

(h) The board shall charge an application fee for the initial issuance or renewal of an authorization in an amount specified by rule.

§30-9-20. Refuse to issue or renew; suspension, revocation of license; disciplinary action.

(a) The board may refuse to issue, refuse to renew, suspend, revoke or limit any license or practice privilege of any licensee, substantial equivalency practitioner or firm and may take disciplinary action against a licensee or substantial equivalency practitioner practicing in this state who, after hearing, has been adjudged by the board as unqualified because of any of the following reasons:

(1) Fraud or deceit in obtaining or maintaining a license or substantial equivalency practice privilege;

(2) Cancellation, revocation, suspension or refusal to renew an out-of-state certificate, an out-of-state permit or substantial equivalency practice privilege for disciplinary reasons in any other state for any cause other than a failure to pay an annual fee for the renewal of an out-of-state certificate or out-of-state permit in the other state;

(3) Failure by any licensee to maintain compliance with requirements for issuance or renewal of a license or to timely notify the board as required under section eighteen of this article;

(4) Revocation or suspension of the right of a licensee or substantial equivalency practitioner to practice before any state or federal agency;

(5) Dishonesty, fraud, professional negligence in the performance of services as a licensee or substantial equivalency practitioner or in the filing or failure to file the licensee's or substantial equivalency practitioner's own income tax returns, or a willful departure from accepted standards of professional conduct applicable to licensees and substantial equivalency practitioners;

(6) Violation of any provision of this article or any rule, including the violation of any professional standard or rule of professional conduct;

(7) Conviction of a felony or any crime an element of which is dishonesty or fraud under the laws of the United States or this state, or conviction of any similar crime under the laws of any other state if the underlying act or omission involved would have constituted a crime under the laws of this state;

(8) Performance of any fraudulent act by any licensee or substantial equivalency practitioner;

(9) Any conduct adversely reflecting upon the licensee's or substantial equivalency practitioner's fitness to perform professional services;

(10) Making any false or misleading statement or verification in support of an application for a license filed by another person or firm; or

(11) Engaging in the unlawful practice of law as defined by the West Virginia Supreme Court of Appeals.

(b) If the board suspends, revokes, refuses to issue, refuses to renew or limits any license or practice privilege, the board shall give written notice of the denial, including a statement of charges setting forth the reasons for the denial, and notice of the date, time and place for hearing. The hearing must be held in accordance with the provisions of section twenty-two of this article.

(c) Disciplinary action includes, but is not limited to, a reprimand, censure, probation, administrative fine not to exceed $1,000 per day per violation, and mandatory attendance at continuing professional education seminars.

§30-9-21. Complaints; investigation.

(a) Upon receipt of a written complaint filed against any licensee, substantial equivalency practitioner or firm, the board shall provide a copy of the complaint to the licensee, substantial equivalency practitioner or firm.

(b) The board may investigate the complaint. If the board finds upon investigation that probable cause exists that the licensee, substantial equivalency practitioner or firm has violated any provision of this article or the rules, the board shall serve the licensee, substantial equivalency practitioner or firm with a written statement of charges and a notice specifying the date, time and place of hearing. The hearing must be held in accordance with section twenty-two of this article.

(c) The board may review the publicly available professional work of a licensee, substantial equivalency practitioner, or firm on a general and random basis, without any requirement of a formal complaint or suspicion of impropriety. If the board discovers reasonable grounds, the board may conduct an investigation and upon its own motion, may file a written statement of charges, including a notice specifying the date, time and place of hearing, against the licensee, firm or substantial equivalency practitioner.

§30-9-22. Hearing; judicial review; notification to out-of-state board of accountancy; costs of proceedings.

(a) A hearing on a statement of charges must be held in accordance with the provisions for hearing set forth in section eight, article one of this chapter and procedures specified by rule.

(b) Any licensee, substantial equivalency practitioner or firm adversely affected by any decision of the board entered after a hearing may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance with article five, chapter twenty-nine-a of this code.

(c) If the board renders a decision refusing to issue, refusing to renew, suspending or revoking a license, or the board takes disciplinary action, the board shall determine whether the licensee, substantial equivalency practitioner or firm holds an out-of-state certificate or permit, and if so, the board shall notify the board of accountancy of the state of issuance of its decision in the manner, under the circumstances and within the time specified by rule.

(d) In addition to other sanctions imposed, the board shall require a licensee, firm or substantial equivalency practitioner to pay the costs of the proceeding.

§30-9-23. Reinstatement.

If the board has suspended, revoked or refused to renew a license or has revoked the practice privileges of a substantial equivalency practitioner, the licensee, firm or substantial equivalency practitioner against whom action has been taken under the provisions of this article, must be afforded an opportunity to demonstrate the qualifications to resume practice. The application for reinstatement must be in writing and is subject to the procedures specified by rule.

§30-9-24. Licensees' working papers; clients' records.

(a) Any statement, record, schedule, working paper, and memorandum made by a licensee or a partner, shareholder, officer, director, member, manager or employee of a licensee incident to, or in the course of, rendering services to a client while a licensee, remains the property of the licensee in the absence of an express agreement between the licensee and the client to the contrary: Provided, That this subsection does not apply to a report submitted by the licensee to the client or to a statement, record, schedule, working paper or memorandum provided by the client to the licensee or to a partner, shareholder, officer, director, member, manager or employee of a licensee.

(b) No statement, record, schedule, working paper, or memorandum made by a licensee or a partner, shareholder, officer, director, member, manager or employee of a licensee incident to, or in the course of, rendering services to a client while a licensee may be sold, transferred or bequeathed, without the consent of the client or the client's personal representative or assignee, to anyone other than one or more surviving partners, stockholders, members or new partners, new stockholders, or new members of the licensee, or any combined or merged firm or successor in interest to the licensee.

(c) Nothing in this section may be construed to prohibit any temporary transfer of a workpaper or other material necessary in the course of carrying out a peer review or as otherwise interfering with the disclosure of information as authorized by rule.

(d) In addition to any statement, record, schedule, working paper, memorandum or report required to be furnished or returned to a client in accordance with subsection (a) of this section, a licensee shall furnish to a client or former client, upon request made within a reasonable time after original issuance of the document in question:

(1) A copy of the tax return of the client;

(2) A copy of any report or other document issued by the licensee to or for the client and not formally withdrawn or disavowed by the licensee prior to the request;

(3) A copy of any working paper, to the extent that it would ordinarily constitute part of the client's records and is not otherwise available to the client; and

(4) Any accounting or other record belonging to, or obtained from or on behalf of, a client that the licensee removed from the client's premises or received for the client's account: Provided, That a licensee may make and retain copies of the documents of the client when they form the basis for work done by the licensee.

(e) Nothing in this section requires a licensee to keep any workpaper beyond the period prescribed in any other applicable statute.

§30-9-25. Commissions, referral fees and contingent fees.

(a) To the extent specified by rule, a licensee may for a contingent fee represent a client before a taxing authority within the scope of practice of public accounting: Provided, That this provision may not be construed either to limit or to expand the scope of practice of public accounting, and may not be construed to permit the unauthorized practice of law.

(b) All agreements or arrangements in which a licensee is to be paid a commission, referral fee or contingent fee must be in writing, state the method by which the fee is to be determined, must be signed by both the licensee and the client, and must be delivered to the client before the performance of any services or the delivery of any product to which the commission, referral fee or contingent fee relates. A contingent fee arrangement must state the method of calculation of the fee, including the percentage or percentages which accrue to the licensee in the event of all foreseeable outcomes, the expenses to be deducted from any recovery, collection or other amount on which the fee may be based, and whether the expenses are to be deducted before or after the contingent fee is calculated.

§30-9-26. Unlawful acts.

(a) No authorization holder or substantial equivalency practitioner may perform attest or compilation services in a manner other than pursuant to the statements on standards relating to those services specified by rule.

(b) (1) No licensee or substantial equivalency practitioner or firm may, for a commission or referral fee, recommend or refer to a client any product or service or refer any product or service to be supplied by a client, or perform for a contingent fee any professional services for or receive a referral fee, commission or contingent fee from a client for whom the licensee, the substantial equivalency practitioner or firm works or associates or in which either of them owns an interest or who performs for that client:

(A) An audit or review of a financial statement;

(B) A compilation of a financial statement when the licensee or substantial equivalency practitioner expects, or reasonably might expect, that a third party will use the financial statement and the compilation report does not disclose a lack of independence; or

(C) An examination of prospective financial information.

(2) The prohibition in subdivision one of this subsection applies only during the period in which the licensee or substantial equivalency practitioner is engaged to perform any of the services listed in subdivision (1) of this subsection and the period covered by any historical financial statements involved in any of those listed services.

(c) No licensee or substantial equivalency practitioner may for a contingent fee prepare an original or amended tax return or claim for a tax refund or serve as an expert witness.

(d) No licensee may use a professional or firm name or designation that: (1) Is deceptive or misleading about the legal form of the firm, or about the persons who are partners, officers, members, managers or shareholders of the firm, or about any other matter; or (2) contains a name or term other than past or present partners, officers, members, managers or shareholders of the firm or of a predecessor firm engaged in the practice of accounting.

(e) No person or firm that does not hold an authorization to perform attest services, or is not otherwise exempt from the authorization requirement, may perform or offer to perform attest services, and no person or firm that does not hold an authorization to perform compilation services, or is not otherwise exempt from the authorization requirement, may perform or offer to perform compilation services.

(f) No individual practitioner who holds an authorization may perform or offer to perform attest services for a client of his or her employer through or on behalf of his or her employer.

(g) No person who is not a certified public accountant, a public accountant or a substantial equivalency practitioner may:

(1) Issue a report on financial statements of any other person, business entity, or governmental unit or otherwise render or offer to render any attest or compilation service: Provided, That this subdivision does not prohibit any act of a public official or public employee in the performance of that person's duties or the performance by any person of other services involving the use of accounting skills, including the preparation of tax returns, management advisory services, and the preparation of financial statements without the issuance of reports thereon: Provided, however, That this subdivision does not prohibit any person who is not a certified public accountant, a public accountant or a substantial equivalency practitioner to prepare financial statements or issue nonattest transmittals of information thereon that do not purport to have been performed in accordance with the applicable statements on standards;

(2) Claim to hold a certificate, registration or authorization or make any other claim of licensure or approval related to the preparation of financial statements or the issuance of reports thereon that is false or misleading;

(3) Claim to have used "generally accepted accounting principles," "generally accepted accounting standards," "public accountancy standards," "public accountancy principles," "generally accepted auditing principles" or "generally accepted auditing standards" in connection with the preparation of any financial statement, or use any of these terms to describe any complete or partial variation from those standards or principles or to imply complete or partial conformity with those standards or principles;

(4) State or imply that he or she is tested, competent, qualified or proficient in financial standards established by the American institute of certified public accountants or any agency thereof, the governmental accounting standards board or any agency thereof, the securities and exchange commission or any agency thereof, the financial accounting standards board or any agency thereof, or any successor entity to any of these entities;

(5) Assume or use the titles "certified accountant," "chartered accountant," "enrolled accountant," "licensed accountant," "registered accountant," "Auditor," "independent Auditor" or any other title or designation that a reasonable person may confuse with the titles "certified public accountant" or "public accountant," or assume or use the abbreviations "CA," "LA," "RA," or similar abbreviation that a reasonable person may confuse with the abbreviations "CPA" or "PA": Provided, That the title "Enrolled Agent" and the abbreviation "EA" may only be used by individuals so designated by the Internal Revenue Service;

(6) Use language in any statement relating to the financial affairs of a person or entity that is conventionally used by a licensee in a report on a financial statement;

(7) Use the words "audit," "audit report," "independent audit," "examine," "examination," "opinion" or "review" in a report on a financial statement;

(8) Assume or use any title that includes the words "accountant," "Auditor," or "accounting" in connection with any other language (including the language of a report) that implies that the person or business entity holds a license or has special competence in accounting or auditing: Provided, That this subdivision does not prohibit any officer, partner, member, manager or employee of any business entity from affixing that person's own signature to any statement in reference to the financial affairs of the business entity with any wording designating the position, title, or office that the person holds therein, nor does it prohibit any act of a public official or employee in the performance of the person's duties;

(9) Use or assume the title "certified public accountant," the abbreviation "CPA," or any other title, designation, word, combination of letters, abbreviation, sign, card or device that may lead a reasonable person to believe that the person is a certified public accountant or the holder of an out-of-state certificate; or

(10) Assume or use the title "public accountant," the abbreviation "PA," or any other title, designation, word, combination of letters, abbreviation, sign, card or device that may lead a reasonable person to believe that the person is a public accountant.

(h) Only a business entity that holds a permit or is exempt from the permit requirement under subsections (c) or (d), section seventeen of this article, may assume or use the designations "certified public accountants," "CPA firm," "public accountants," or "PA firm" or the abbreviations "CPAs," or "PAs," or any other title, designation, word, combination of letters, abbreviation, sign, card or device that may lead a reasonable person to believe that the business entity is a firm or holds a permit.

(i) The display or uttering by a person of any printed, engraved or written instrument, bearing the name of the person in conjunction with any of the claims, titles, words or phrases listed in this section is, for purposes of this section, prima facie evidence that the person has engaged in the acts.

(j) Notwithstanding any provision in this section to the contrary, it is not a violation of this section for a firm or business entity which does not hold a permit under section seventeen or an authorization under section nineteen of this article and which does not have an office in this state to provide its professional services in this state so long as it complies with subsection (c) or (d) of section seventeen, whichever is applicable, and with any applicable provision of section nineteen of this article.

§30-9-27. Injunctions against unlawful acts.

When, as a result of an investigation under this article or otherwise, the board or any other interested person believes that any person or business entity has engaged, is engaging, or is about to engage in any acts or practices that constitute or will constitute a violation of section twenty-six of this article, the board or any other interested person may make application to any court of competent jurisdiction for an order enjoining the acts or practices, and upon a showing that the person or business entity has engaged or is about to engage in any act or practice, an injunction, restraining order, or another appropriate order may be granted by the court without bond.

§30-9-28. Criminal proceedings; penalties.

(a) When, by reason of an investigation under section twenty-one of this article or otherwise, the board has reason to believe that any person or firm has knowingly engaged in acts or practices that constitute a violation of section twenty-six of this article, the board may bring its information to the attention of the Attorney General or other appropriate law-enforcement officer who may cause appropriate criminal proceedings to be brought thereon.

(b) Any person or firm who knowingly violates any provision of section twenty-six of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or imprisoned in the county or regional jail not more than one year, or both fined and imprisoned.

§30-9-29. Single act evidence of practice.

In any action or proceeding brought under sections twenty-seven or twenty-eight of this article or any proceeding initiated under section twenty-one of this article, evidence of the commission of a single act prohibited by this article is sufficient to justify a penalty, injunction, restraining order or conviction, respectively, without evidence of a general course of conduct.

§30-9-30. Accounting corporations.

(a) All accounting corporations created prior to July 1, 2001, are hereby continued.

(b) On or after July 1, 2001, one or more certified public accountants or public accountants may organize and become a shareholder or shareholders of an accounting corporation domiciled within this state under the terms and conditions and subject to the limitations and restrictions specified by rule.

(c) When the Secretary of State receives a certification of authorization to act as an accounting corporation, he or she shall attach the authorization to the corporation application and, upon compliance with the applicable provisions of chapter thirty-one of this code, the Secretary of State shall issue to the incorporators a certificate of incorporation for the accounting corporation.

§30-9-31. Inapplicability of article.

(a) Nothing contained in this article may be construed to prevent any person from describing himself or herself as an "accountant" or a "bookkeeper" or from stating that he or she practices accountancy or bookkeeping; nor, subject to certification and registration requirements herein imposed, may this article be construed to prevent any person from: (1) Performing services involving the use of accounting skills; (2) rendering tax services, management advisory or consulting services; (3) keeping of books of account and related accounting records; or (4) preparing, compiling or assembling financial statements without the expression of an assurance.

(b) The prohibitions of this section and the other provisions of this article may not be construed to preclude a person or business entity not holding a certificate or registration from using the following or substantially similar language: "I (We) have compiled the accompanying (financial statements) of (name of entity) as of (time period) for the (period) then ended. A compilation is limited to presenting in the form of financial statements information that is the representation of management (owners). I (We) have not audited or reviewed the accompanying financial statements and, accordingly, do not express an opinion or any other form of assurance on them. Management has elected to omit substantially all (or certain) required disclosures (and the statement of changes in financial position). If omitted disclosures were included in the financial statements, they might influence the user's conclusions about the (entity's) financial position, results of operations and changes in financial position. Accordingly, these financial statements are not designed for those who are not informed about these matters."

(c)Nothing contained in this article may be construed to prohibit an employee from furnishing services to his or her employer.

(d) Nothing in this article prohibits a practicing attorney or group of attorneys from preparing or presenting records or documents customarily prepared by an attorney or group of attorneys in connection with the attorney's professional work in the practice of law.

§30-9-32.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§30-9-33. Mandatory training in federal antitrust law and state action immunity.

It shall be required of the West Virginia Board of Accountancy, and their representatives from the Attorney General’s office, to obtain initial training on the subject of federal antitrust law and state action immunity by July 1, 2016, and thereafter on an annual basis. The purpose of the training is to provide those members with the knowledge to be able to identify the risks of any action that may be taken by the board that could be construed as possible antitrust violations.

§30-9-34. Indemnification.

In the event that a lawsuit is filed alleging violation of federal antitrust laws, the board may indemnify its board members and current and former employees for expenses reasonably incurred in connection with judicial or administrative proceedings to which they are or may become parties by reason of the performance of their official duties

§30-10-1. Unlawful acts.

(a) It is unlawful for any person to practice or offer to practice veterinary medicine, veterinary technology or animal euthanasia in this state without a license, registration or certificate issued under the provisions of this article, or advertise or use any title or description tending to convey the impression that they are a veterinarian, veterinary technician or animal euthanasia technician unless such person has been duly licensed, registered or certified under the provisions of this article.

(b) A business entity may not render any service or engage in any activity which, if rendered or engaged in by an individual, would constitute the practice of veterinary medicine, veterinary technology or animal euthanasia, except through a licensee, registrant or certificate holder.

§30-10-2. Applicable law.

The practice of veterinary medicine, veterinary technology and animal euthanasia, and the Board of Veterinary Medicine are subject to the provisions of article one of this chapter, the provisions of this article and the board's rules.

§30-10-3. Definitions.

As used in this article, the following words and terms have the following meanings:

(a) "Animal" means any animal other than human, and the term includes fowl, birds, amphibians, fish, and reptiles, wild or domestic, living or dead.

(b) "Animal control facility" means a municipal or county operated humane society or animal shelter incorporated and organized under the laws of this state, or a humane society or an animal shelter classified as 501(c)(3) by the Internal Revenue Service, with at least one certified animal euthanasia technician.

(c) "Applicant" means a person making application for a license, certificate, registration or permit, under the provisions of this article.

(d) "Board" means the West Virginia Board of Veterinary Medicine.

(e) "Business entity" means any firm, partnership, association, company, corporation, limited partnership, limited liability company or other entity performing veterinary medicine, veterinary technology or animal euthanasia.

(f) "Certificate" means an animal euthanasia technician certificate issued under the provisions of this article.

(g) "Certificate holder" means a person holding a certificate issued under the provisions of this article.

(h) "Certified animal euthanasia technician" means a person who is certified by the board to euthanize animals in accordance with the provisions of this article.

(i) "General supervision" means the supervising veterinarian is in the building where the animal is being treated, has given instructions for treatment and is quickly and easily available.

(j) "Indirect supervision" means the performance of procedures on the orders of a supervising veterinarian.

(k) "License" means a veterinary medicine license issued under the provisions of this article.

(l) "Licensee" means a person holding a license issued under the provisions of this article.

(m) "Permit" means a temporary permit to practice veterinary medicine issued by the board.

(n) "Permittee" means a person holding a permit issued under the provisions of this article.

(o) "Practice of veterinary medicine" means to diagnose, treat, correct, change, relieve or prevent any disease, deformity, defect, injury, or other physical or mental condition, of any animal, or to prescribe for or to administer to any animal any drug, medicine, biologic, apparatus, application, anesthetic or other therapeutic or diagnostic substance or technique, or to render advice or any recommendation with respect to any of the foregoing.

(p) "Practice of veterinary technology" means the science and art of providing all aspects of professional medical care, services and treatment for animals with the exceptions of diagnosis, prognosis, surgery, prescription and application of any treatments, drugs, medications or appliances, where a valid veterinarian-client-patient relationship exists.

(q) "Registered veterinary technician" means a person who is duly registered to practice veterinary technology under the provisions of this article.

(r) "Registrant" means a person holding a registration issued under the provisions of this article.

(s) "Registration" means a veterinary technician registration issued under the provisions of this article.

(t) "Supervising veterinarian" means a veterinarian, licensed under this article, who assumes responsibility for the professional care given to an animal by a person authorized by this article to work under his or her general or indirect supervision.

(u) "Veterinarian" means a person who is licensed to practice veterinary medicine under the provisions of this article.

(v) "Veterinary assistant" means a person who has not met the requirements for becoming a registered veterinary technician. The duties and tasks of a veterinary assistant are instructed from and directly supervised by a licensed veterinarian, who is accountable for the veterinary assistant's actions. The supervising veterinarian is responsible for determining the ability and competence of the veterinary assistant to perform the directed task or procedure.

(w) "Veterinarian-client-patient relationship" means a relationship between a veterinarian, a client and a patient, and exists when:

(1) A veterinarian assumes responsibility for medical judgments regarding the health of an animal and the client who is the owner or other caretaker of the animal agrees to follow the veterinarian's instructions; or

(2) A veterinarian, through personal examination of an animal or a representative sample of a herd or flock, obtains sufficient information to make at least a general or preliminary diagnosis of the medical condition of the animal, herd or flock, which diagnosis is expanded through medically appropriate visits to the premises where the animal, herd or flock is kept.

§30-10-3a.

Repealed.

Acts, 1967 Reg. Sess., Ch. 154.

§30-10-4. Board of Veterinary Medicine.

(a) The West Virginia Board of Veterinary Medicine is continued. The members of the board in office on July 1, 2010, shall, unless sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and qualified.

(b) Prior to July 1, 2010, the Governor, by and with the advice and consent of the Senate, shall appoint:

(1) A registered veterinary technician for a term of five years; and

(2) A licensed veterinarian for a term of four years.

(c) Commencing July 1, 2010, the board shall consist of the following nine members, appointed by the Governor by and with the advice and consent of the Senate:

(1) Six members licensed to practice veterinary medicine in this state;

(2) One member registered to practice veterinary technology in this state; and

(3) Two citizen members, who are not licensed, registered, certified or permitted under the provisions of this article, and who do not perform any services related to the practice of the professions regulated under the provisions of this article.

(d) After the initial appointment term, the appointment term is five years. A member may not serve more than two consecutive terms. A member who has served two consecutive full terms may not be reappointed for at least one year after completion of his or her second full term. A member may continue to serve until his or her successor has been appointed and qualified.

(e) Each licensed or registered member of the board, at the time of his or her appointment, must have held a license or registration in this state for a period of not less than three years immediately preceding the appointment.

(f) Each member of the board must be a resident of this state during the appointment term.

(g) A vacancy on the board shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant.

(h) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.

(i) A licensed or registered member of the board immediately and automatically forfeits membership to the board if his or her license or registration to practice is suspended or revoked.

(j) A member of the board immediately and automatically forfeits membership to the board if he or she is convicted of a felony under the laws of any jurisdiction or becomes a nonresident of this state.

(k) The board shall elect annually one of its members as chairperson and one member as secretary-treasurer who shall serve at the will and pleasure of the board.

(l) Each member of the board is entitled to receive compensation and expense reimbursement in accordance with article one of this chapter.

(m) A majority of the members of the board constitutes a quorum.

(n) A veterinary technician member may not be employed by a veterinarian on the board.

(o) The board shall hold at least one annual meeting. Other meetings shall be held at the call of the chairperson or upon the written request of three members, at the time and place as designated in the call or request.

(p) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state.

§30-10-5. Powers and duties of the board.

The board has all the powers and duties set forth in this article, by rule, in article one of this chapter and elsewhere in law, including:

(1) Hold meetings, conduct hearings and administer examinations;

(2) Establish requirements for a license, permit, certificate and registration;

(3) Establish procedures for submitting, approving and rejecting applications for a license, permit, certificate and registration;

(4) Determine the qualifications of any applicant for a license, permit, certificate and registration;

(5) Establish the fees charged under the provisions of this article;

(6) Issue, renew, deny, suspend, revoke or reinstate a license, permit, certificate and registration;

(7) Prepare, conduct, administer and grade written, oral or written and oral examinations for a license, certificate and registration;

(8) Determine the passing grade for the examinations;

(9) Contract with third parties to administer the examinations required under the provisions of this article;

(10) Maintain records of the examinations the board or a third party administers, including the number of persons taking the examination and the pass and fail rate;

(11) Maintain an office, and hire, discharge, establish the job requirements and fix the compensation of employees and contract with persons necessary to enforce the provisions of this article;

(12) Investigate alleged violations of the provisions of this article, legislative rules, orders and final decisions of the board;

(13) Conduct disciplinary hearings of persons regulated by the board;

(14) Determine disciplinary action and issue orders;

(15) Institute appropriate legal action for the enforcement of the provisions of this article;

(16) Maintain an accurate registry of names and addresses of all persons regulated by the board;

(17) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;

(18) Establish, by legislative rule, the continuing education requirements for licensees, permitees, certificate holders and registrants;

(19) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article;

(20) Sue and be sued in its official name as an agency of this state;

(21) Confer with the Attorney General or his or her assistant in connection with legal matters and questions; and

(22) Take all other actions necessary and proper to effectuate the purposes of this article.

§30-10-6. Rule-making authority.

(a) The board shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this article, including:

(1) Standards and requirements for a license, permit, certificate and registration;

(2) Educational and experience requirements;

(3) Procedures for examinations and reexaminations;

(4) Requirements for third parties to prepare, administer or prepare and administer examinations and reexaminations;

(5) The passing grade on the examination;

(6) Standards for approval of courses;

(7) Establish a certified animal euthanasia technician's program;

(8) Procedures for the issuance and renewal of a license, permit, certificate and registration;

(9) A fee schedule;

(10) Continuing education requirements;

(11) Set standards for ethical conduct;

(12) Establish procedures and requirements for facility inspections;

(13) Clarify the veterinarian-client-patient relationship;

(14) The procedures for denying, suspending, revoking, reinstating or limiting the practice of a licensee, permittee, certificate holder or registrant;

(15) Requirements for a revoked license, permit, certificate and registration; and

(16) Any other rules necessary to effectuate the provisions of this article.

(b) All of the board's rules in effect on July 1, 2010, shall remain in effect until they are amended, modified, repealed or replaced.

§30-10-7. Fees; special revenue account; administrative fines.

(a) All fees and other moneys, except fines, received by the board shall be deposited in a separate special revenue fund in the State Treasury designated the "Board of Veterinary Medicine Fund", which fund is continued. The fund is used by the board for the administration of this article. Except as may be provided in article one of this chapter, the board shall retain the amounts in the special revenue account from year to year. Any compensation or expense incurred under this article is not a charge against the General Revenue Fund.

(b) The board shall deposit any amounts received as administrative fines imposed pursuant to this article into the General Revenue Fund of the State Treasury.

§30-10-8. Requirements for Veterinary License.

(a) To be eligible for a license to practice veterinary medicine under the provisions of this article, the applicant must:

(1) Be of good moral character;

(2) (A) Be a graduate of an accredited school approved by the board; or

(B) Be a graduate of a foreign veterinary school and hold a certificate of competence issued by a foreign veterinary graduate educational organization as approved by the board;

(3) Have passed the examinations required by the board;

(4) Be at least eighteen years of age;

(5) Be a citizen of the United States or be eligible for employment in the United States;

(6) Not have been convicted of a crime involving moral turpitude;

(7) Not have been convicted of a felony under the laws of any jurisdiction within five years preceding the date of application for licensure which conviction remains unreversed; and

(8) Not have been convicted of a misdemeanor or a felony under the laws of any jurisdiction at any time if the offense for which the applicant was convicted related to the practice of veterinary medicine or animal abuse or neglect.

(b) A person seeking a license under the provisions of this article shall submit an application on a form prescribed by the board and pay all applicable fees.

(c) An applicant from another jurisdiction shall comply with all the requirements of this article.

(d) A license to practice veterinary medicine issued by the board prior to July 1, 2010, shall for all purposes be considered a license issued under this article and may be renewed under this article.

(e) An application for a license to practice veterinary medicine submitted to the board prior to July 1, 2010, shall be considered in conformity with the licensing provisions of this article and the rules promulgated thereunder in effect at the time of the submission of the application.

§30-10-9. Scope of practice for a licensed veterinarian.

A person licensed to practice veterinary medicine may do the following:

(a) Prescribe or administer any drug, medicine, treatment, method or practice for an animal.

(b) Perform any operation or manipulation on or apply any apparatus or appliance to an animal.

(c) Give instruction or demonstration for the cure, amelioration, correction or reduction or modification of an animal condition, disease, deformity, defect, wound or injury.

(d) Diagnose or prognosticate an animal condition, disease, deformity, defect, wound or injury for hire, fee, reward or compensation that is directly or indirectly promised, offered, expected, received or accepted.

(e) Prescribe or administer any legally authorized drug, medicine, treatment, method or practice, perform any operation or manipulation, or apply any apparatus or appliance for the cure, amelioration, correction or modification of an animal condition, disease, deformity, defect, wound or injury for hire, fee, compensation or reward that is directly or indirectly promised, offered, expected, received or accepted.

§30-10-10. Requirements for a registered veterinary technician.

(a) To be eligible for a registration to practice veterinary technology under the provisions of this article, the applicant must:

(1) Be of good moral character;

(2) Have a degree in veterinary technology from an accredited school, approved by the board;

(3) Have passed the examinations required by the board;

(4) Be at least eighteen years of age;

(5) Be a citizen of the United States or be eligible for employment in the United States;

(6) Not have been convicted of a crime involving moral turpitude;

(7) Not have been convicted of a felony under the laws of any jurisdiction within five years preceding the date of application for registration which conviction remains unreversed; and

(8) Not have been convicted of a misdemeanor or a felony under the laws of any jurisdiction at any time if the offense for which the applicant was convicted related to the practice of veterinary technology or animal abuse or neglect.

(b) A person seeking registration under the provisions of this

article shall submit an application on a form prescribed by the board and pay all applicable fees.

(c) A person registered to practice veterinary technology issued by the board prior to July 1, 2010, shall for all purposes be considered registered under this article and may renew pursuant to the provisions of this article.

§30-10-11. Scope of practice for registered veterinary technician.

(a) A registered veterinary technician may do the following under general supervision:

(1) Administer anesthesia, including induction, intravenous sedation, and maintenance and recovery from anesthesia;

(2) Perform dental prophylaxis;

(3) Establish open airways;

(4) Administer resuscitative oxygen procedures;

(5) Administer resuscitative drugs, in the event of cardiac arrest;

(6) Administer immunizations that are not required by law to be administered by a licensed veterinarian;

(7) Prepare or supervise the preparation of patients for surgery;

(8) Assist the veterinarian in immunologic, diagnostic, medical, chemotherapeutic and surgical procedures; and

(9) Perform external suturing.

(b) A registered veterinary technician may do the following under either general or indirect supervision:

(1) Perform diagnostic imaging;

(2) Perform intravenous catheterization;

(3) Administer and apply medications and treatments by oral intramuscular, intravenous and subcutaneous routes;

(4) Apply bandages;

(5) Perform cardiac and respiratory monitoring;

(6) Perform appropriate procedures to control bleeding;

(7) Apply temporary splints or immobilizing bandages;

(8) Perform ear flushing;

(9) Collect specimens; and

(10) Perform laboratory procedures.

(c) A veterinary technician may, without supervision, use emergency treatment procedures when an animal has been placed in a life threatening condition and immediate treatment is necessary to sustain the animal's life. The registered veterinary technician shall immediately take steps to secure the general supervision of a veterinarian.

§30-10-12. Requirements to be a certified animal euthanasia technician.

(a) To be eligible to be a certified animal euthanasia technician a person must:

(1) Apply at least thirty days prior to the date the next written examinations are scheduled, using a form prescribed by the board;

(2) Have a high school diploma or GED;

(3) Pay application and examination fees;

(4) Complete the certified animal euthanasia technician's program established by the board;

(5) Pass the written and practical skills examinations;

(6) Pass the prescribed background check; and

(7) Complete all the other requirements established by the board.

(b) A certified animal euthanasia technician may practice animal euthanasia at a legally operated animal control facility.

(c) A person certified as an animal euthanasia technician by the board prior to July 1, 2010, shall for all purposes be considered certified under this article and may renew pursuant to the provisions of this article.

(d) A person certified by another state or jurisdiction with certification requirements equivalent to, or exceeding, the certification standards of this state may be issued a certification under this section upon the submission of a completed application and the appropriate fees, as established by the board in legislative rules.

§30-10-13. Requirements for certified animal euthanasia technicians program.

(a) The board shall create a certified animal euthanasia technician's program. The board shall design this program to teach applicants for certification record keeping and the legal, safety and practical information needed to become a certified animal euthanasia technician.

(b) (1) The board shall administer written examinations to an applicant for certification. The written examinations shall test the applicant's knowledge of the following:

(A) Animal restraint;

(B) Drug enforcement agency regulations;

(C) Record keeping requirements for controlled substances;

(D) Handling, inventory, security and proper storage of euthanasia drugs, solutions and syringes;

(E) The certification process;

(F) Legal requirements;

(G) Stress management;

(H) Approved animal euthanasia drug usage;

(I) Jurisprudence; and

(J) Other subject areas specified by the board in a legislative rule.

(2) The applicant shall pass the written examinations with a minimum correct score, as determined by the board, in order to be eligible to take the practical skills examination provided in subsection (c) of this section.

(c) In addition to the written examinations provided under subsection (b) of this section, the board shall administer a practical skills examination to an applicant who has successfully passed the written examinations. The board shall conduct the practical skills examination in a manner that tests an applicant's ability to properly restrain an animal, measure a correct dosage of euthanasia solution, locate an injection site and perform an injection. In order to pass the practical skills examination, an applicant shall exhibit to the board that he or she can locate an injection site and perform an injection and also perform euthanasia correctly and humanely.

(d) An applicant who successfully passes the written examinations and the practical skills examination required by this section shall sign a form authorizing the board to make inquiries through the United States Department of Justice, or any other legal jurisdiction or entity, for the purpose of determining the character and reputation of the applicant and other matters relating to the certification of the applicant.

§30-10-14. Scope of practice for an animal euthanasia technician.

(a) A certified animal euthanasia technician may euthanize animals assigned to the care of an animal control facility.

(b) A certified animal euthanasia technician shall practice euthanasia within the limitations imposed by this article and rules promulgated by the board under this article.

(c) A certified animal euthanasia technician may not practice or offer to practice his or her profession outside the direct authority of the animal control facility which employs him or her or otherwise contracts for his or her services.

(d) A certified animal euthanasia technician is not qualified and may not indicate that he or she is qualified to act in any capacity relative to animals beyond his or her specified and regulated authority to euthanize animals at the instruction of the animal control facility by which he or she is employed.

(e) Annually, before January 15, a certified animal euthanasia technician shall report to the board the number of animals euthanized at his or her facility during the previous calendar year.

§30-10-15. Renewal requirements.

(a) All persons regulated by the article shall annually or biennially before January 1, renew his or her license, registration or certification by completing a form prescribed by the board, paying all applicable fees and submitting any other information required by the board.

(b) At least thirty days prior to January 1, the board shall mail to every person regulated by the article an application for renewal.

(c) The board shall charge a fee for each renewal and a late fee for any renewal not properly completed and received with the appropriate fee by the due date.

(d) The board shall require as a condition of renewal that each licensee, registrant and certificate holder complete continuing education.

(e) The board may deny an application for renewal for any reason which would justify the denial of an original application.

(f) The board may authorize the waiving of the renewal fee of a licensed veterinarian or registered veterinarian technician during the period when he or she is on active duty with any branch of the armed services or the public health service of the United States or a declared emergency.

(g) After July 1, 2010, a previously certified animal euthanasia technician may renew his or her certification without having obtained a high school degree or GED.

§30-10-16. Temporary permits for a veterinarian.

(a) Upon completion of an application and payment of the applicable fees, the board may issue a temporary permit to a person to practice veterinary medicine in this state who has completed the educational requirements set out in this article, is waiting to take the state examination, and is working under a supervising veterinarian.

(b) The temporary permit is valid for a period not to exceed the next scheduled examination date first held following the issuance of the temporary permit and expires the day after the board gives written notice to the permittee of the results.

(c) A temporary permit may be revoked by a majority vote of the board without a hearing.

§30-10-17. Exemptions from article.

The following persons are exempt from licensing under the provisions of this article:

(a) An employee of the federal government performing his or her official duties, as defined by the employing agency;

(b) A student of a veterinary school working under the direct supervision of a licensed veterinarian;

(c) A person advising with respect to or performing acts which the board has prescribed by legislative rule as accepted livestock management practices;

(d) The owner of an animal, the owner's employees, or persons assisting the owner without any fee or compensation, caring for and treating the animal, except where the ownership of the animal was transferred for the purpose of circumventing the provisions of this article;

(e) A member of the faculty of a veterinary school performing his or her regular duties and functions, including lecturing, giving instructions or demonstrations, at a veterinary school or in connection with a board approved continuing education course or seminar;

(f) A person selling or applying a pesticide, insecticide or herbicide;

(g) A person engaging in bona fide scientific research which reasonably requires experimentation involving animals;

(h) A person engaging in bona fide scientific research in consultation with a licensed veterinarian in this state;

(i) A person treating or relieving a living animal in the case of an emergency for no fee or other compensation;

(j) A person who disposes of the carcass of a dead animal; and

(k) Veterinary assistants acting under the general supervision of a licensed veterinarian.

§30-10-18. Display of license, permit, registration and certificate.

(a) The board shall prescribe the form for a license, permit, registration and certificate and may issue a duplicate upon payment of a fee.

(b) Any person regulated by this article shall conspicuously display his or her license, permit, registration or certification at his or her principal business location.

§30-10-19. Complaints; investigations; due process procedure; grounds for disciplinary action.

(a) The board may upon its own motion and shall upon the written complaint of any person or based upon the quarterly report from the Board of Pharmacy as required by §60A-9-1 et seq. of this code cause an investigation to be made to determine whether grounds exist for disciplinary action under this article.

(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the complaint to the licensee, permittee, registrant, or certificate holder.

(c) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the licensee, permittee, registrant, or certificate holder has violated any provision of this article.

(d) Upon a finding that probable cause exists that the licensee, permittee, registrant, or certificate holder has violated this article, the board may enter into a consent decree or hold a hearing for the suspension or revocation of the license, permit, registration, or certificate or the imposition of sanctions against the licensee, permittee, registrant, or certificate holder. The hearing shall be held in accordance with the provisions of this article.

(e) Any member of the board or the executive director of the board may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations against any person regulated by this article.

(f) Any member of the board or its executive director may sign a consent decree or other legal document on behalf of the board.

(g) The board may, after notice and opportunity for hearing, deny, refuse to renew, suspend, or revoke the license, permit, registration, or certificate of, impose probationary conditions upon or take disciplinary action against, any licensee, permittee, registrant, or certificate holder for any of the following reasons:

(1) Obtaining a license, permit, registration, or certificate by fraud, misrepresentation, or concealment of material facts;

(2) Being convicted of a felony or other crime involving moral turpitude;

(3) Being guilty of unprofessional conduct;

(4) Intentional violation of this article or lawful order;

(5) Having had a license or other authorization to practice revoked or suspended, other disciplinary action taken, or an application for licensure or other authorization refused, revoked, or suspended by the proper authorities of another jurisdiction, irrespective of intervening appeals and stays; or

(6) Engaging in any act which has endangered or is likely to endanger the health, welfare, or safety of the public.

(h) For the purposes of §30-10-19(g) of this code, disciplinary action may include:

(1) Reprimand;

(2) Probation;

(3) Administrative fine, not to exceed $1,000 a day per violation;

(4) Mandatory attendance at continuing education seminars or other training;

(5) Practicing under supervision or other restriction;

(6) Requiring the licensee, permittee, registrant, or certificate holder to report to the board for periodic interviews for a specified period of time; or

(7) Other corrective action considered by the board to be necessary to protect the public, including advising other parties whose legitimate interests may be at risk.

§30-10-20. Procedures for hearing; right of appeal.

(a) Hearings shall be governed by the provisions of section eight, article one of this chapter.

(b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.

(c) If the hearing is conducted by an administrative law judge, the administrative law judge shall prepare a proposed written order containing findings of fact and conclusions of law at the conclusion of a hearing. The proposed order may contain proposed disciplinary actions if the board so directs. The board may accept, reject or modify the decision of the administrative law judge.

(d) Any member or the executive director of the board has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.

(e) If, after a hearing, the board determines the licensee, permittee, registrant or certificate holder has violated this article, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.

§30-10-21. Judicial review; appeal to Supreme Court of Appeals.

Any licensee, permittee, registrant or certificate holder adversely affected by a decision of the board entered after a hearing may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance with article six, chapter twenty-nine-a of this code.

§30-10-22. Criminal proceedings; penalties.

(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a person has knowingly violated this article, the board may bring its information to the attention of an appropriate law-enforcement official who may cause criminal proceedings to be brought.

(b) Any person violating a provision of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000 or confined in jail not more than six months, or both fined and confined.

§30-10-23. Single act evidence of practice.

In any action brought or in any proceeding initiated under this article, evidence of the commission of a single act prohibited by this article is sufficient to justify a penalty, injunction, restraining order or conviction without evidence of a general course of conduct.

§30-10A-1.

Repealed.

Acts, 2010 Reg. Sess., Ch. 153.

§30-10A-2.

Repealed.

Acts, 2010 Reg. Sess., Ch. 153.

§30-10A-3.

Repealed.

Acts, 2010 Reg. Sess., Ch. 153.

§30-10A-4.

Repealed.

Acts, 2010 Reg. Sess., Ch. 153.

§30-10A-5.

Repealed.

Acts, 2010 Reg. Sess., Ch. 153.

§30-10A-6.

Repealed.

Acts, 2010 Reg. Sess., Ch. 153.

§30-10A-7.

Repealed.

Acts, 2010 Reg. Sess., Ch. 153.

§30-10A-8.

Repealed.

Acts, 2010 Reg. Sess., Ch. 153.

§30-10A-9.

Repealed.

Acts, 2010 Reg. Sess., Ch. 153.

§30-11-1.

Repealed.

Acts, 1980 Reg. Sess., Ch. 83.

§30-11-10.

Repealed.

Acts, 1980 Reg. Sess., Ch. 83.

§30-11-11.

Repealed.

Acts, 1980 Reg. Sess., Ch. 83.

§30-11-2.

Repealed.

Acts, 1980 Reg. Sess., Ch. 83.

§30-11-3.

Repealed.

Acts, 1980 Reg. Sess., Ch. 83.

§30-11-4.

Repealed.

Acts, 1980 Reg. Sess., Ch. 83.

§30-11-5.

Repealed.

Acts, 1980 Reg. Sess., Ch. 83.

§30-11-6.

Repealed.

Acts, 1980 Reg. Sess., Ch. 83.

§30-11-7.

Repealed.

Acts, 1980 Reg. Sess., Ch. 83.

§30-11-8.

Repealed.

Acts, 1980 Reg. Sess., Ch. 83.

§30-11-9.

Repealed.

Acts, 1980 Reg. Sess., Ch. 83.

§30-12-1. Board of architects.

In order to safeguard the life, health, property and public welfare of the people of this state and to protect the people against the unauthorized, unqualified and improper practice of architecture, the West Virginia board of architects, heretofore created, shall continue in existence and shall consist of seven members, five of whom shall be architects, appointed by the Governor by and with the advice and consent of the Senate, and two of whom shall be lay members, not of the same political party affiliation, appointed by the Governor by and with the advice and consent of the Senate. Each member who is an architect shall have been engaged in the active practice of his profession in the State of West Virginia for not fewer than ten years previous to his appointment. The members of the board in office on the date this article takes effect, in the year one thousand nine hundred ninety, shall, unless sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and have qualified. Each member shall be appointed for a term of five years.

The board shall pay each member the same compensation and expense reimbursement as is 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.

Pursuant to the provisions of chapter twenty-nine-a of this code, the board, in addition to the authority, powers and duties granted to it by this article, has the authority to promulgate rules relating to the regulation of the practice of architecture and may include rules pertaining to the registration of architects. Any disciplinary proceedings held by the board shall be held in accordance with the provisions of the administrative procedures act for contested cases pursuant to the provisions of article five of said chapter.

§30-12-2. Definitions.

The following words as used in this article, unless the context otherwise requires, have the following meanings:

(1) "Architect" means any person who engages in the practice of architecture as hereinafter defined.

(2) "Board" means the West Virginia board of architects established by section one of this article.

(3) "Direct supervision" means that degree of supervision by a person overseeing the work of another person whereby the supervisor has both control over and detailed professional knowledge of the work prepared under his or her supervision.

(4) "Good moral character" means such character as will enable a person to discharge the fiduciary duties of an architect to his client and to the public for the protection of health, safety and welfare. Evidence of inability to discharge such duties include the commission of an offense justifying discipline under section eight of this article.

(5) "Practice of architecture" means rendering or offering to render those services, hereinafter described, in connection with the design and construction, enlargement or alteration of a building or group of buildings and the space within and surrounding such buildings, which have as their principal purpose human occupancy or habitation; the services referred to include planning, providing preliminary studies, designs, drawings, specifications and other technical submissions and administration of construction contracts.

(6) "Registered architect" means an architect holding a current registration.

(7) "Registration" means the certificate of registration issued by board.

(8) "Technical submissions" means designs, drawings, specifications, studies and other technical reports prepared in the course of practicing architecture.

§30-12-3. Fees.

(a) Notwithstanding any other provision of the law to the contrary, the board is authorized and empowered to establish by legislative rule in accordance with the provisions of article three, chapter twenty-nine-a of this code a schedule of fees to be charged to applicants. The board shall charge for: Examination, reexamination, renewal of certificates, restoration of expired certificates, reciprocal registration and for any other matters deemed appropriate by the board.

(b) Until such time as the board establishes otherwise, the fees previously set by legislative rule remain in effect.

§30-12-4. Registration qualifications.

Every person applying to the board for initial registration shall submit an application accompanied by the fee established in accordance with section three of this article with satisfactory evidence that such person holds an accredited professional degree in architecture or has completed such other education as the board considers equivalent to an accredited professional degree and with satisfactory evidence that such person has completed such practical training in architectural work as the board requires. If an applicant is qualified, the board shall, by means of a written examination, examine the applicant on such technical and professional subjects as prescribed by it. None of the examination materials are public records as defined in article one, chapter twenty-nine-b of this code. The board may exempt from such written examination an applicant who holds certification issued by the national council of architectural registration boards. The board may adopt as its own rules governing practical training and education those guidelines published from time to time by the national council of architectural registration boards. The board may also adopt the examinations and grading procedures of the national council of architectural registration board and the accreditation decisions of the national architectural accrediting board. The board shall issue its registration to each applicant who is found to be of good moral character and who satisfies the requirements set forth in this section. The registration is effective upon issuance.

§30-12-5. Registration renewal.

The board shall mail each year to every registered architect an application for renewal of registration. The application, properly filled out and accompanied by the renewal fee established in accordance with section three of this article, shall be returned to the board on or before the date established by the board. After verification of the facts stated in the renewal application, the board shall issue a registration which is valid for one year, expiring on June 30 of each year. Any holder of a registration who fails to renew his or her application on or before the prescribed date, before again engaging in the practice of architecture within the state, is required to apply for reinstatement, pay the prescribed fee and, in circumstances considered appropriate by the board, may be required to be reexamined.

§30-12-6. Certificate of registration.

Every registered architect having a place of business or employment within the state shall display his or her certificate of registration in a conspicuous place in such place of business or employment. A new certificate of registration, to replace a lost, destroyed or mutilated certificate, shall be issued by the board upon payment of a fee established in accordance with section three of this article and such certificate shall be stamped or marked "duplicate."

§30-12-7. Seal.

(a) Every registered architect shall have a seal of a design authorized by the board by rule. All technical submissions prepared by such architect, or under his or her direct supervision, shall be stamped with the impression of his or her seal. No architect holding a registration may impress his or her seal on any technical submissions unless they were prepared under his or her direct supervision: Provided, That in the case of the portions of such technical submissions prepared under the direct supervision of persons consulting with or employed by the architect, the architect may sign or seal those portions of the technical submission if the architect has reviewed such portions and has coordinated their preparation.

(b) No public official charged with the enforcement duties of a municipal building inspector may accept or approve any technical submissions involving the practice of architecture unless the technical submissions have been stamped as required by this section or by a registered engineer or the applicant has certified thereon the applicability of a specific exception under section twelve of this article permitting the preparation of such technical submissions by a person not registered thereunder. A building permit issued with respect to technical submissions which do not conform with the requirements of this section is invalid.

§30-12-8. Disciplinary powers.

The board may revoke, suspend or annul a registration, or impose a civil penalty in an amount not more than $2,000 for each violation, upon satisfactory proof to the board that any person has violated the provisions of this article or any rules promulgated by the board under this article. In hearing matters arising under this section, the board may take into account suitable evidence of reform.

§30-12-9. Disciplinary proceedings.

Charges against any person involving any matter coming within the jurisdiction of the board shall be in writing and shall be filed with the board. Such charges, at the discretion of the board, shall be heard within a reasonable time after being so filed. The accused person has the right at such hearing to appear personally, with or without counsel, to cross-examine adverse witnesses and to produce evidence and witnesses in his or her defense. The board shall set the time and place for such hearing and shall cause a copy of the charges, together with a notice of the time and place fixed for the hearing, to be sent by registered mail to the accused person, at his or her latest place or residence or business known to the board, at least thirty days before such date. If after such hearing the board finds the accused person has violated any of the provisions of this article or any of the rules promulgated by the board, it may issue any order described in section eight of this article. If the board finds no such violation, then it shall enter an order dismissing the charges. If the order revokes, suspends or annuls an architect's registration, the board shall so notify, in writing, the Secretary of State and the clerk of the municipality in the state wherein such architect has a place of business, if any.

The board may reissue a registration to any person whose registration has been revoked. Application for the reissuance of the registration shall be made in such a manner as the board may direct and shall be accompanied by a fee established in accordance with section three of this article.

§30-12-10. Registration; prima facie evidence.

Every registration issued and remaining in force is prima facie evidence in all courts of the state that the person named therein is legally registered as an architect for the period for which it is issued and of all other facts stated therein.

§30-12-11. Prohibition.

Except as hereinafter set forth in section twelve of this article, no person may directly or indirectly engage in the practice of architecture in the state or use the title "architect," "registered architect," "architectural designer," or display or use any words, letters, figures, titles, sign, card, advertisement or other symbol or device indicating that such person is an architect or is practicing architecture, unless he or she is registered under the provisions of this article. No person may aid or abet any person, not registered under the provisions of this chapter, in the practice of architecture.

§30-12-11a. Construction administration services required.

(a) The owner of any real property who allows a project to be constructed on such real property shall be engaged in the practice of architecture unless such owner may have employed or may have caused others to have employed a registered architect or registered engineer to furnish "construction administration services" with respect to such project.

(b) For purposes of this section, the following terms shall have the following meanings:

(1) "Building official" means the person appointed by the municipality or state subdivision having jurisdiction over the project to have principal responsibility for the safety of the project as finally built.

(2) "Construction administration services" comprises at the following services: (A) Visiting the construction site on a regular basis as is necessary to determine that the work is proceeding generally in accordance with the technical submissions submitted to the building official at the time the building permit was issued; (B) processing shop drawings, samples, and other submittals required of the contractor by the terms of construction contract documents; and (C) notifying an owner and the building official of any code violations, changes which affect code compliance, the use of any materials, assemblies, components, or equipment prohibited by a code, major or substantial changes between such technical submissions which he or she identifies as constituting a hazard to the public, which he or she observes in the course of performing his or her duties.

(3) "Owner" means with respect to any real property and of the following persons: (A) The holder of a mortgage secured by such real property; (B) the holder, directly or indirectly, of an equity interest in such real property exceeding ten percent of the aggregate equity interests in such real property; (C) the record owner of such real property; or (D) the lessee of all or any portion of such real property when the lease covers all of that portion of such real property upon which the project is being constructed, the lessee has significant approval rights with respect to the project, and the lease, at the time the construction of the project begins, has a remaining term of not less than ten years.

(4) "Project" means the construction, enlargement, or alteration of a building, other than a building exempted by the provisions of section twelve of this article, which has as its principal purpose human occupancy or habitation.

(c) If the registered engineer or registered architect who sealed the technical submissions which were submitted to the building official at the time the building permit was issued has not been employed to furnish construction administration services at the time such registered architect or registered engineer issued such technical submissions, he or she shall note on such technical submissions that he or she has not been so employed. If he or she is not employed to furnish construction administration services when construction of the project begins, he or she shall file, not later than thirty days after such construction begins, with the board and with the building official, on a form prescribed by the board, a notice setting forth the names of the owner or owners known to him or her, the address of the project, and the name, if known to him or her, of the registered architect employed to perform construction administration services. If he or she believes that no registered architect or registered engineer has been so employed, he or she shall so state on the form. Any registered architect or registered engineer who fails to place the note on his or her technical submissions or to file such notice, as required by this paragraph, shall have violated the provisions of this chapter and shall be subject to discipline as set forth herein.

(d) If the board determines, with respect to a particular project or class of projects, that the public is adequately protected without the necessity of a registered architect or registered engineer performing construction administrative services, the board may waive the requirements of this section with respect to such project or class of projects.

§30-12-12. Exceptions.

Nothing in this article may be construed to prevent:

(a) Any of the activities that, apart from this exemption, would constitute the practice of architecture, if performed in connection with any of the following:

(1) A detached single family dwelling and any sheds, storage buildings and garages incidental thereto;

(2) A multifamily residential structure not in excess of three stories excluding any basement area;

(3) Farm buildings, including barns, silos, sheds or housing for farm equipment and machinery, livestock, poultry or storage, if such structures are designed to be occupied by no more than ten persons;

(4) Any alteration, renovation or remodeling of a building, if such alteration, renovation or remodeling does not affect structural or other safety features of the building or if the work contemplated by the design does not require the issuance of a permit under any applicable building code;

(5) Preengineered buildings, including mobile classrooms purchased by county school boards; and

(6) A commercial structure which is to contain not more than seventy-six hundred square feet and not in excess of one story excluding any basement area.

(b) The preparation of any detailed or shop drawings required to be furnished by a contractor, or the administration of construction contracts by persons customarily engaged in contracting work.

(c) The preparation of technical submissions or the administration of construction contracts by employees of a person or organization lawfully engaged in the practice of architecture when such employees are acting under the direct supervision of a registered architect.

(d) Officers and employees of the United States of America from engaging in the practice of architecture as employees of said United States of America.

(e) A partnership, corporation or other business entity from performing or holding itself out as able to perform any of the services involved in the practice of architecture, provided such practice is actually carried on under the direct supervision of architects registered in the State of West Virginia.

(f) A nonresident, who holds a certificate to practice architecture in the state in which he resides and in addition holds the certification issued by the national council of architectural registration boards, from agreeing to perform or holding herself or himself out as able to perform any of the professional services involved in the practice of architecture: Provided, That he or she may not perform any of the professional services involved in the practice of architecture until registered as hereinbefore provided and he or she notifies the board in writing if, prior to registration, he or she engages in any of the activities permitted by this paragraph.

(g) The practice of landscape architecture as defined in section two, article twenty-two of this chapter.

§30-12-13. Enforcement.

The board shall enforce the provisions of this article and of the rules adopted hereunder. If any person refuses to obey any decision or order of the board, the board or, upon the request of the board, the Attorney General or the appropriate prosecuting attorney, may file an action for the enforcement of such decision or order, including injunctive relief, in the circuit court of the county of residence of such person. After due hearing, the court shall order the enforcement of such decision or order, or any part thereof, if legally and properly made by the board and, where appropriate, injunctive relief.

§30-12-14. Penalties.

Whoever violates any provision of this article is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $1,000 or imprisoned in the county jail for not more then twelve months, or both fined and imprisoned.

§30-12-15.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§30-13-1. Legislative findings; intent.

The Legislature hereby determines the need to regulate the practice of engineering; to provide for the registration of qualified persons as professional engineers and the certification of engineer interns; to define the terms "engineer", "professional engineer", "engineer intern" and "practice of engineering"; to create a state board of registration for professional engineers and provide for the appointment and compensation of its members; to fix the term of members of the board and define its powers and duties; to set forth the minimum qualifications and other requirements for registration as an engineer and certification as an engineer intern; to establish registration fees with expiration and renewal requirements; to impose certain duties upon the state and political subdivisions thereof in connection with public works; and to provide for the enforcement of this article and penalties for its violation.

§30-13-2. General provisions.

In order to safeguard life, health and property and to promote the public welfare, the practice of engineering in this state is hereby declared to be subject to regulation in the public interest. It is unlawful for any person to practice or to offer to practice engineering in this state, as defined in the provisions of this article, or to use in connection with his or her name or otherwise assume or advertise any title or description tending to convey the impression that he or she is a registered or licensed engineer, unless the person has been duly registered or exempted under the provisions of this article. Engineering is hereby declared a learned profession and its practitioners are held accountable to the state and the public by professional standards in keeping with the ethics and practice of other learned professions in this state. The practice of engineering is a privilege granted by the state.

§30-13-3. Definitions.

Unless the context in which used clearly requires a different meaning as used in this article:

(a) "Board" means the West Virginia state board of registration for professional engineers as provided for in this article.

(b) "Consulting engineer" means a professional engineer whose principal occupation is the independent practice of engineering; whose livelihood is obtained by offering engineering services to the public; who serves clients as an independent fiduciary; who is devoid of public, commercial and product affiliation that might tend to infer a conflict of interest; and who is cognizant of their public and legal responsibilities and is capable of discharging them.

(c) "Engineer" means a person who is qualified to practice engineering by reason of special knowledge and use of the mathematical, physical and engineering sciences and the principles and methods of engineering analysis and design, acquired by engineering education and engineering experience.

(d) "Engineer intern" means a person who has qualified for, taken and has passed an examination in the fundamental engineering subjects, as provided in this article.

(e) "Practice of engineering" means any service or creative work, the adequate performance of which requires engineering education, training and experience in the application of special knowledge of the mathematical, physical and engineering sciences to such services or creative work as consultation, investigation, evaluation, planning and design of engineering works and systems; planning the use of land and water; teaching of advanced engineering subjects, engineering surveys and studies; and the review of construction for the purpose of assuring compliance with drawings and specifications any of which embraces such services or work, either public or private, in connection with any utilities, structures, buildings, machines, equipment, processes, work systems, projects and industrial or consumer products or equipment of a mechanical, electrical, hydraulic, pneumatic or thermal nature, insofar as they involve safeguarding life, health or property, and including such other professional services as may be necessary to the planning, progress and completion of any engineering services. Engineering surveys include all survey activities required to support the sound conception, planning, design, construction, maintenance and operation of engineered projects.

Any person who practices any branch of the profession of engineering or who, by verbal claim, sign, advertisement, letterhead, card or in any other way represents himself or herself to be a professional engineer, or by using another title implies that he or she is a professional engineer or that he or she is registered under this article or who holds himself or herself out as able to perform, or who performs any engineering service or work or any other service designated by the practitioner which is recognized as engineering, is considered to practice or offer to practice engineering within the meaning and intent of this article.

(f) "Professional engineer" means a person who has been duly registered or licensed as a professional engineer by the board. The board may designate a professional engineer, on the basis of education, experience and examination, as being licensed in a specific discipline or branch of engineering signifying the area in which the engineer has demonstrated competence.

(g) "Responsible charge" means direct control and personal supervision of engineering work.

(h) "Rules of professional responsibility for professional engineers" means those rules, if any, promulgated by the West Virginia state board of registration for professional engineers as authorized by this article.

§30-13-4. Board of registration for professional engineers; appointment and term.

There is hereby created the board of registration for professional engineers which shall hereafter be referred to as the board. The board shall be composed of five members appointed by the Governor, by and with the consent of the Senate, preferably from a list of names submitted by the West Virginia society of professional engineers. The members of the board shall be qualified and shall meet the requirements of section five of this article. The Governor shall present each board member with a certificate of appointment. Each board member shall make and file an oath or affirmation with the Secretary of State to faithfully execute the duties of a member of the board. Members of the board shall serve a term of five years. Of the members first appointed, one shall serve a term of one year, one shall serve a term of two years, one shall serve a term of three years, one shall serve a term of four years and one shall serve a term of five years. Members are eligible for reappointment but no member may be appointed for more than three full consecutive terms. Each member shall hold office until the expiration of the term for which appointed or until a successor has been duly appointed and has qualified. In the event of a vacancy on the board due to resignation, death or for any cause resulting in an unexpired term and if not filled within three months by the Governor, the board may appoint a member to serve in the vacancy until the Governor makes the appointment. Members of the former board whose terms have not expired shall fill the term on this board which corresponds with the length of the unexpired term of that member.

§30-13-5. Board qualifications.

Each member of the board must be a citizen of the United States and a resident of this state. Each member shall have been engaged in the lawful practice of engineering as a professional engineer for at least twelve years; shall have been in responsible charge of engineering projects for at least five years; and shall be a registered professional engineer in this state.

§30-13-6. Compensation and expenses.

Each member of the board shall receive compensation for time spent, and reimbursement for reasonable and necessary expenses incurred, in the performance of board-related duties pursuant to section eleven, article one of this chapter.

§30-13-7. Removal of members and vacancies.

The Governor may remove any member of the board for misconduct, incompetency, neglect of duty or for any reason prescribed by law for removal of state officials. Vacancies in the membership of the board shall be filled for the unexpired term.

§30-13-8. Organization and meetings.

The board shall hold at least one regular meeting each year. Special meetings may be held as the bylaws of the board provide. Each year the board shall elect the following officers: A president, a vice president and a secretary, who shall serve at the will and pleasure of the board. A quorum of the board shall consist of not less than three professional engineer members.

§30-13-9. Board powers.

(a) The board may adopt and amend bylaws not inconsistent with the Constitution and laws of this state. The board may promulgate and shall adopt "rules of professional responsibility for professional engineers". These rules are binding to any person registered with the board under the provisions of this article. These rules are also applicable to firms holding a certificate of authorization as provided in section seventeen of this article.

(b) The board may subpoena witnesses and compel their attendance and it may also subpoena books, papers, documents or other pertinent data in any disciplinary matters or in any case involving an allegation of a violation of the provisions of this article. The board may apply to the circuit court of Kanawha county to enforce compliance with any subpoena it issues.

(c) The board may seek an injunction in circuit court to enforce the provisions of this article or to restrain a person or entity from violating a provision of this article. In pursuing injunctive relief under this section, the board shall not be required to prove that an adequate remedy at law does not exist or that substantial or irreparable damage would result from the continued violation. The members of the board may not be personally liable for any decisions made in good faith in pursuing injunctive relief.

(d) The board may require all applicants for registration to take and successfully pass an examination of their fitness and qualifications to become registered.

(e) The board may require that a registered professional engineer demonstrate continuing professional competency in engineering as a condition of renewal or reregistration.

(f) Board members are exempt from civil liability for any decision made or any act done in good faith in the performance of any duty or the exercise of any power granted under this article.

§30-13-10. Receipt of fees, fund established, disbursements.

There is hereby established within the State Treasury a "board of professional engineers fund". The board shall deposit all fees and other moneys received by the board into the fund. The moneys in the fund shall be used for expenses of the board and shall be requisitioned on the signatures of the president and secretary of the board. The secretary of the board shall annually furnish an accounting of all funds received and expended by the board to the Governor and to each house of the Legislature. The board may use the moneys in the fund to employ necessary staff, pay for membership fees to the national council of examiners for engineering and surveying and for any other necessary and reasonable expense of the board: Provided, That the board may not issue warrants in excess of moneys in the fund.

§30-13-11. Records and reports.

(a) The board shall keep a record of its proceedings and of all applications for registration. The record shall show: (1) The name, age and last known address of each applicant; (2) the date of application; (3) place of business of such applicant; (4) education, experience and other qualifications; (5) type of examination required; (6) whether or not the applicant was rejected; (7) whether or not a certificate of registration was granted; (8) the date of the action by the board; and (9) such information as may be deemed necessary by the board.

(b) The record of the board is prima facie evidence of the proceedings of the board and a transcript duly certified by the secretary shall be admissible as evidence with the same force and effect as if the original were produced.

(c) On July 1, of each year, the board shall submit to the Governor a report of its transactions of the preceding year and shall transmit to the Governor a complete statement of the receipts and expenditures of the board, attested to by affidavits of its chairman and secretary.

(d) Board records and papers of the following class are of a confidential nature and are not public records: Examination material for examinations not yet given, file records of examination problem solutions, letters of inquiry and reference concerning applicants, board inquiry forms concerning applicants, investigation files where any investigation is still pending and all other materials of like confidential nature.

§30-13-12. Roster.

A complete roster with the names and the last known addresses of all registered professional engineers shall be published by the secretary of the board at intervals established by the board. Copies of this roster may be mailed to each person registered and shall be placed on file with the Secretary of State and may be distributed or sold to county and city officials and to the public.

§30-13-13. Requirements for registration of professional engineers and certification of engineer interns.

(a) General requirements. – Every person who desires to be certified as an engineer intern or to be registered as a professional engineer in this state must comply with the following requirements:

(1) Submission of a completed application specified by the board and payment of the application fee specified by rule of the board;

(2) Be at least eighteen years of age;

(3) Be of good moral character;

(4) Submit statements of reference as specified by rule of the board;

(5) Graduate from a four-year engineering curriculum accredited by the Engineering Accreditation Commission of the Accreditation Board for Engineering and Technology (EAC/ABET), or an equivalent as approved by the board as being of satisfactory standing; and

(6) Be free of any grounds for disqualification as set forth in subsection of (a) of section twenty-one of this article.

(b) Certification of an engineer intern. – In addition to the foregoing general requirements, an applicant must meet the following requirements to be certified as an engineer intern in this state:

(1) Satisfactorily complete the required examination on the fundamentals of engineering; and

(2) Complete each additional requirement that the board may specify by legislative rule.

(c) Registration of a professional engineer. – In addition to the general requirements specified in subsection (a) of this section, an applicant must meet the following requirements to be certified as a professional engineer in this state:

(1) Meet all the requirements for certification as an engineer intern;

(2) Submit a record of four years or more of progressive experience in engineering work of a grade and a character that indicates to the board that the applicant may be competent to practice engineering;

(3) Satisfactorily complete the required examination on the principles and practice of engineering;

(4) Complete each additional requirement that the board may specify by legislative rule.

(d) Registration of a professional engineer through comity or reciprocal registration. – Notwithstanding the requirements of the foregoing subsection of this section, the board may issue a license to an applicant who holds a valid license or other authorization to practice engineering from another state, if the applicant satisfies the general requirements of subsection (a) of this section, satisfies the additional requirements specified by rule of the board and meets one of the following requirements:

(1) Holds a license or other authorization to engage in the practice of engineering issued by a proper authority of any jurisdiction, based on requirements that do not conflict with the provisions of this article and possesses credentials that are, in the judgment of the board, of a standard equivalent to or not lower than that specified in the applicable licensure act and rules in effect in this state at the time such license was issued, upon application, which may include a council record with NCEES; or

(2) Holds a valid council record with NCEES, which is the compilation of documents maintained by NCEES of an applicant's qualifications as a professional engineer, including official transcripts, engineering examination results, employment verifications and references, which indicates that the applicant meets the requirements of this article.

(e) Certification or registration of qualified applicants. – The board shall issue a certification to a qualified applicant who meets the requirements for certification as an engineer intern and shall issue a professional engineer registration to a qualified applicant who meets the requirements for registration as a professional engineer.

(f) Continuation of existing registrations and certificates. – A registration or certificate issued by the board prior to July 1, 2013, shall for all purposes be considered a registration or certificate issued under this article: Provided, That a person registered or certified prior to July 1, 2013, must renew the registration or certification pursuant to the provisions of this article and the rules of the board.

§30-13-13a. Designations of nonpracticing status.

The board may designate a professional engineer as ineligible to practice or offer to practice engineering in this state using one of the following terms:

(1) Professional engineer-retired. – A registrant may apply for retired status upon certification that he or she is no longer practicing or offering to practice engineering in this state for remuneration.

(2) Professional engineer-inactive. – A registrant may request inactive status upon affirmation that he or she is no longer practicing or offering to practice engineering in this state.

(3) Professional engineer-lapsed. – A registrant's license is lapsed when the registrant does not respond to renewal notices or pay the required fees.

(4) Professional engineer-invalidated. – A registrant's license is invalidated when he or she is unable to provide sufficient proof that any condition of renewal set forth in this article or by board rule has been met.

§30-13-14. Application and registration fee.

Every person seeking to become registered as a professional engineer or seeking to become certified as an engineer intern shall file an application on forms provided by the board. The application shall be made under oath and shall include:

(a) The level of education of the applicant;

(b) A summary of the applicant's technical experience; and

(c) The names and complete mailing addresses of any references.

Applicants may not use the names of board members as references.

In lieu of information required on the board's application forms, the board may accept the verified information contained in a valid council record issued by the national council of examiners for engineering and surveying for professional engineer applicants.

The board shall set fees for all applicants for registration and certification by promulgating legislative rules under the provisions of article three, chapter twenty-nine-a of this code.

Fees of unsuccessful applicants and the fees of applicants who have been refused registration or certification for any purpose shall be retained by the board to cover administrative costs.

§30-13-15. Examinations.

(a) The board has the power to establish, by legislative rule, the requirements for examination for registration as a professional engineer and certification as an engineer intern including, but not limited to, the following criteria: subject matter, prerequisites for testing, passing score, examination sites and schedules, entities authorized to administer examinations, prerequisites for testing and form of testing, including examination by electronic or other means.

(b) The board's rules for examination shall include the following minimum requirements:

(1) An examination to qualify to be an engineer intern, to test the applicant's knowledge and understanding of the fundamentals of engineering; and

(2) An examination to qualify as a professional engineer, to test the applicant's knowledge and understanding of the principles and practice of engineering.

(c) If the board determines that the safe and ethical practice of engineering in this state requires examination of matters specific to the law and practice in this state, the board may also establish criteria, by legislative rule, for an examination of the applicant's knowledge and understanding of this state's statutes, rules, professional ethics and design requirements.

(d) A candidate for registration as a professional engineer who fails the examination of the principles and practice of engineering may retake the examination one time upon payment of the fee established by the board. In the event of a second failure, the candidate may not repeat the examination unless the examinee demonstrates to the board that he or she has pursued additional instruction or training to correct the candidate's deficit areas of knowledge.

(e) In the event that examination requirements, test administration procedures, scoring or testing methods are modified by a board-approved testing entity providing standard tests for use by the board, the board has the authority to promulgate emergency rules to adopt and reflect those changes.

§30-13-16. Certificates and seals.

(a) The board shall issue a certificate of registration to any applicant who, in the opinion of the board, has met the requirements of this article. The certificate of registration shall carry the designation "professional engineer". It shall give the full name of the registrant with their registration number and shall be signed by the chairman and the secretary under the seal of the board. The certificate of registration grants the recipient authority to practice in this state.

(b) An unexpired and unrevoked certificate is prima facie evidence that the person named on it is entitled to all rights, privileges and responsibilities of a professional engineer.

(c) Every registrant shall obtain a seal for use in identifying his or her official professional work. The design of the seal shall be determined by the board and shall bear the registrant's name, registrant's registration number, the legend "registered professional engineer, state of West Virginia" and such other words or figures as the board may prescribe. The seal may be a rubber stamp. Whenever the seal is applied, the registrant's written signature shall be adjacent to or across the seal. No further words or wording are required. A facsimile signature is not acceptable. Whenever presented to a client or any public or governmental agency, the seal, signature and date shall be placed on all specifications, reports, drawings, plans, design information and calculations in accordance with rules promulgated by the board. The seal and signature shall be used by registrants only when the work being stamped was under the registrant's complete direction and control.

In the case of a registrant of another state using a temporary permit issued by this state, the registrant shall use the state of permanent registration seal and shall affix his or her signature and temporary permit number to all work. In the case of a registrant checking the work of an out-of-state registrant, the state registrant shall completely check and have complete dominion and control of the design. The complete dominion and control includes possession of the sealed and signed reproducible construction drawings with complete signed and sealed design calculations indicating all changes in design.

(d) The board shall issue to any applicant who, in the opinion of the board, has met the requirements of this article, an enrollment card as engineer intern, which indicates that his or her name has been recorded in the board office. The engineer intern enrollment card does not authorize the holder to practice as a professional engineer. It is unlawful for a registrant to affix or to permit his or her seal and signature to be affixed to any document after the expiration of his or her certificate or for the purpose of aiding or abetting any other person to evade or attempt to evade any provisions of this article.

§30-13-17. Certificates of authorization required; naming of engineering firms.

(a) No person or firm is authorized to practice or offer to practice engineering in this state until the person or firm has been issued a certificate of authorization by the board.

(b) A person or firm desiring a certificate of authorization must file all the required information with the board on an application form specified by the board. The required information shall include the sworn statement of the engineer in responsible charge who is a professional engineer registered in this state. The board shall issue a certificate of authorization to an applicant who has met all the requirements and paid the fees set forth in board rules.

(c) No person or firm is relieved of responsibility for the conduct or acts of its agents, employees, officers or partners due to compliance with the provisions of this article. No individual practicing engineering under the provisions of this article is relieved of responsibility for engineering services performed due to his or her employment or other relationship with a person or firm holding a certificate of authorization.

(d) An engineer who renders occasional, part-time or contract engineering services to or for a firm may not be designated as being in responsible charge for the professional activities of the firm unless that engineer is an owner or principal of the firm.

(e) The Secretary of State shall not issue a certificate of authority or business registration or license to an applicant whose business includes, among the objectives for which it is established, the words engineer, engineering or any modification or derivation thereof unless the board of registration for this profession has issued to the applicant a certificate of authorization or a letter indicating eligibility to receive the certificate. The certificate or letter from the board shall be filed with the application filed with the Secretary of State to do business in West Virginia.

(f) The Secretary of State shall decline to register a trade name or service mark which includes the words engineer, engineering or modifications or derivatives thereof in its business name or logotype except those businesses holding a certificate of authorization issued under the provisions of this article.

(g) The certificate of authorization may be renewed or reinstated in accordance with board rule and upon payment of the required fees.

(h) Every holder of a certificate of authorization has a duty to notify the board promptly of any change in information previously submitted to the board in an application for a certificate of authorization.

§30-13-18. Renewals and reinstatement.

(a) Certificates of registration and certificates of authorization expire on the last day of December of the year indicated on the certificate, and the holder of any certificate that is not timely renewed is ineligible to practice or offer to practice engineering in this state until the certificate has been reinstated in accordance with rules promulgated by the board.

(b) Certificates may be renewed only in accordance with board rule, which may include payment of a late fee for renewals not postmarked by December 31 of the year in which renewal is required. The board shall notify every person or firm holding an active certificate under this article of the certificate renewal requirements at least one month prior to the renewal date. The notice shall be made by mail or electronic means using the contact information provided to the board.

(c) A certificate that was not timely renewed or for other reason was given a nonpracticing status may be reinstated under rules promulgated by the board and may require reexamination and payment of fees set forth in board rules.

(d) Effective July 1, 2015, the board may renew certificates on a biennial basis.

(e) The board shall promulgate emergency rules pursuant to section fifteen, article three, chapter twenty-nine-a of this code to implement the provisions of this section.

§30-13-19. Reissuance of certificates.

A new certificate of registration or certificate of authorization to replace any certificate lost, destroyed or mutilated may be issued subject to the rules of the board. A charge established by rule shall be made for each new certificate.

§30-13-20. Public works.

Government agencies, authorities, officials and employees may not engage in the practice of engineering involving either public or private property unless the provisions of this article are met.

§30-13-21. Disciplinary action--Revocation, suspension, refusal to issue, restore or renew, probation, civil penalty, reprimand.

(a) The board may suspend or revoke or refuse to issue, restore or renew a certificate of registration of, or place on probation, impose a civil penalty or reprimand any professional engineer who has:

(1) Perpetrated any fraud or deceit in obtaining or attempting to obtain or renew a certificate of registration or certificate of authorization;

(2) Been negligent, incompetent or committed an act of misconduct in the practice of engineering;

(3) Been convicted of or has entered a plea of nolo contendere to any crime under the laws of the United States or any state or territory thereof, which is a felony whether related to practice or not; and conviction of or entry of a plea of nolo contendere to any crime, whether a felony, misdemeanor or otherwise, an essential element of which is dishonesty, or which is directly related to the practice of engineering;

(4) Failed to comply with any of the provisions of this article or any of the rules promulgated under it;

(5) Been disciplined by another state, territory, the District of Columbia, foreign country, the United States government or any other governmental agency, if at least one of the grounds for discipline is the same or substantially equivalent to those grounds for discipline contained in this article;

(6) Failed within thirty days to provide information requested by the board as a result of a formal or informal complaint to the board which would indicate a violation of this article;

(7) Knowingly made false statements or signed false statements, certificates or affidavits to induce payment;

(8) Aided or assisted another person in violating any provision of this article or the rules promulgated;

(9) Violated any terms of probation imposed by the board or using a seal or practicing engineering while the professional engineer's license is suspended, revoked, nonrenewed or inactive;

(10) Signed or affixed the professional engineer's seal or permitted the professional engineer's seal or signature to be affixed to any specifications, reports, drawings, plans, design information, construction documents or calculations or revisions which have not been prepared or completely checked by the professional engineer or under the professional engineer's direct supervision or control;

(11) Engaged in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public;

(12) Provided false testimony or information to the board; and

(13) Been habitually intoxicated or addicted to or by the use of drugs or alcohol.

(b) In addition to any other penalty provided in this article, the board may assess civil penalties against any person who violates any provision of this article or any rule promulgated by the board for each offense in an amount determined by the board.

(c) The board shall prepare and shall adopt "rules of professional responsibility for professional engineers". The board may revise and amend these "rules of professional responsibility for professional engineers" from time to time and shall notify each registrant in writing of any revisions or amendments.

(d) The board may:

(1) Revoke a certificate of authorization;

(2) Suspend a certificate of authorization of any firm for a period of time not exceeding two years where one or more of its officers or directors of the firm have been found guilty of any conduct which would authorize a revocation or suspension of his or her certificate of registration under the provisions of this article;

(3) Place the person or firm on probation for a period of time and make the person or firm subject to conditions as the board may specify;

(4) Assess a civil penalty and related costs for each count or separate offense in an amount set by the board.

§30-13-22. Disciplinary action -- Procedures.

(a) Any person may file a complaint with the board that a person or firm subject to the provisions of this article has committed a fraud, been deceitful, been grossly negligent, incompetent, guilty of misconduct or has violated the "rules of professional responsibility for professional engineers".

(b) All complaints, unless dismissed by the board as unfounded, trivial or unless settled informally, shall be heard by the board within six months after the date each complaint was received by the board.

(c) The board shall fix the time and place for hearings on complaints and a copy of all charges, together with a notice of the time and place of hearing on the complaint the person or firm complained against or mailed to the last known address of the person or firm at least thirty days prior to the hearing. At the hearing, the person or firm shall have the right to appear in person or by counsel, or both, to cross-examine witnesses and to produce evidence and witnesses in his her or its defense. If the accused person or firm fails or refuses to appear, the board may proceed to hear the complaint and determine the validity of the charges.

(d) If after the hearing a majority of the board votes in favor of sustaining the charges, the board shall reprimand or assess a civil penalty against the person or firm complained against. The board may also suspend, revoke, refuse to issue or refuse to restore or renew an individual's certificate of registration or a firm's certificate of authorization. In addition, the board may place a registrant on probation.

(e) Any person or firm aggrieved by any action of the board in assessing a civil penalty, denying, suspending, refusing to issue, refusing to restore or renew or revoking a certificate of registration or a certificate of authorization, may appeal the board's decision to the circuit court.

(f) Any civil penalty assessed as a result of a hearing shall be paid within fifty days after the decision becomes final.

(g) The board may, upon petition of a person or firm, reissue a certificate of registration or authorization, provided that a majority of the members of the board votes in favor of such issuance.

§30-13-23. Criminal offenses.

Any person who practices or offers to practice engineering in this state without being registered in accordance with the provisions of this article, or any person, firm, partnership, organization, association, corporation or other entity using or employing the words engineer, engineering or any modification or derivative thereof in its name or form of business activity except as authorized in this article, or any person presenting or attempting to use the certificate of registration or the seal of another, or any person who gives any false or forged evidence of any kind to the board or to any member thereof in obtaining or attempting to obtain a certificate of registration, or any person who falsely impersonates any other registrant of like or different name, or any person who attempts to use an expired, suspended or revoked or nonexistent certificate of registration, or who practices or offers to practice when not qualified, or any person who falsely claims that he or she is registered or authorized under this article, or any person who violates any of the provisions of this article is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $500, or imprisoned in the county jail not more than six months, or both fined and imprisoned.

Any person who commits a second or subsequent offense under this section is guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than ten nor more than twenty years.

The Attorney General may act as legal adviser to the board and render any legal assistance as may be necessary in carrying out the provisions of this article. The board may employ counsel and necessary assistance to aid in the enforcement of this article and the compensation and expenses of the council shall be paid from the funds of the board.

§30-13-24. Exemptions.

This article may not be construed to prevent the practice by:

(a) Other professions. -- The practice of any other legally recognized profession;

(b) Temporary permits. -- The practice or offer to practice engineering by a person not a resident of or having no established place of business in this state, provided the person is legally qualified by registration to practice engineering, as defined in this article, in their own state or country. The person shall make application to the board in writing and after payment of a fee established by the board may be granted a written permit for a definite period of time not to exceed one year to do a specific job: Provided, That no right to practice engineering shall accrue to the applicant with respect to any other works not set forth in the permit; and

(c) Employees and subordinates. -- The work of an employee or a subordinate of a person holding a certificate of registration under this article, or an employee of a person practicing lawfully: Provided, That the work does not include final engineering designs or decisions and is done under the direct supervision of and verified by a person holding a certificate of registration under this article or a person practicing lawfully. Any regular full-time employee of a person, partnership, corporation or other business entity who is engaged solely and exclusively in performing services for such person, partnership, corporation or other business entity, who is not required by any provision of the law other than this article to be a registered professional engineer and whose services are performed on, or in connection with, property owned or leased by such person, partnership, corporation or other business entity, or in which such person, partnership, corporation or other business entity has an interest, estate or possessory right, and are not offered or made available to the public. This exemption includes the use of job title and personal classification by such person, but no name, title or words may be used which tend to convey the impression that an unlicensed person is offering professional engineering services to the public.

§30-13-25.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§30-13A-1. Unlawful acts.

(a) It is unlawful for any person to practice or offer to practice surveying in this state without a license issued under the provisions of this article, or advertise or use any title or description tending to convey the impression that they are a surveyor, unless such person has been licensed under the provisions of this article.

(b) It is unlawful for any firm to practice or offer to practice surveying in this state without a certificate of authorization issued under the provisions of this article, or advertise or use any title or description tending to convey the impression that it is a surveying firm, unless such firm has been issued a certificate of authorization under the provisions of this article.

§30-13A-2. Applicable law.

The practice of surveying and the West Virginia Board of Professional Surveyors are subject to the provisions of article one of this chapter, the provisions of this article and the board's rules.

§30-13A-3. Definitions.

As used in this article, the following words and terms have the following meanings:

(a) "Applicant" means a person making application for a license or a firm making application for a certificate of authorization, under the provisions of this article.

(b) "Board" means the West Virginia Board of Professional Surveyors.

(c) "Boundary survey" means a survey, in which property lines and corners of a parcel of land have been established by a survey and a description of survey has been written and a plat has been prepared for the property.

(d) "Cadastral survey" means a survey representing the ownership, relative positions and dimensions of land, objects and estates.

(e) "Certificate holder" means a firm holding a certificate of authorization issued by the board.

(f) "Certificate of authorization" means a certificate issued under the provisions of this article to a firm providing surveying services.

(g) "Construction survey" means the laying of stakes for a construction project.

(h) "Direct supervision" means the responsible licensee is in direct control of all field and office surveying operations. Direct control does not necessarily require the actual physical presence of the responsible licensee at the site of the survey, nor prohibit the responsible licensee from maintaining simultaneous direct supervision of more than one survey.

(i) "Endorsee" means a person holding an endorsement to practice in a specialized field of surveying issued by the board under the provisions of this article.

(j) "Endorsement" means an authorization, in addition to a professional surveyor license, to practice in a specialized field of surveying issued by the board.

(k) "Firm" means any nongovernmental business entity, including an individual, association, partnership or corporation, providing surveying services.

(l) "Geodetic control survey" means a survey involving the precise measurement of points on the earth's surface which form the framework or control for a large map or project.

(m) "Geographic information system (GIS)" means a system of hardware, software and procedures designed to support the capture and management of spatially referenced information.

(n) "Hydrographic survey" means a survey that measures and determines the topographic features of water bodies and the adjacent land areas, including the width, depth and course of water bodies and other relative features.

(o) "Inactive" means the status granted by the board to a licensee or endorsee.

(p) "Land information system (LIS)" means a system of hardware, software and procedures designed to support the capture and management of spatially referenced information.

(q) "License" means a surveying license issued under the provisions of this article.

(r) "Licensee" means a person holding a surveying license issued under the provisions of this article.

(s) "Metes and bounds" means a description where the land or the associated effects on the land have been measured by starting at a known point and describing, in sequence, the lines by direction and distance forming the boundaries of the land or a defined area relative to the physical land features, associated effects or structural improvements on the land.

(t) "Monument" means a permanent marker, either boundary or nonboundary, used to establish corners or mark boundary lines of a parcel of land or reference the geospatial relationship of other objects.

(u) "Mortgage/loan inspection survey" means a survey in which property lines and corners have not been established.

(v) "Oil or gas well survey" means a survey and plat of a proposed oil or gas well, including the location of the well, the surface or mineral tract on which the well is located, the physical features surrounding the well, all creeks or streams near the well and any other identifying characteristics of the land to specify the location of the well. An oil or gas well survey must be performed in accordance with other provisions of this code affecting oil and gas well surveys.

(w) "Partition survey" means a survey where the boundary lines of a newly created parcel of land are established and the new corners are monumented.

(x) "Photogrammetry" means the use of aerial photography, other imagery and surveying principles to prepare scaled maps or other survey products reflecting the contours, features and fixed works of the earth's surface.

(y) "Practice of surveying" means providing professional surveying services, including consulting, investigating, expert testimony, evaluating, planning, mapping and surveying.

(z) "Responsible charge" means direct control of surveying work under the direct supervision of a licensee or person authorized in another state or country to engage in the practice of surveying.

(aa) "Retracement survey" means a survey where the boundary lines and corners of a parcel of land are reestablished from an existing legal or deed description.

(bb) "Strip" means a description of an area by reference to an alignment, usually a right-of-way or an easement, stating the number of feet on each side of the alignment, the relative position of the alignment, a reference to the measurements and monuments where the alignment crosses a parcel of land and the source of title for each parcel of land the alignment crosses.

(cc) "Subdivision" means the division of a lot, tract or parcel of land into two or more lots, tracts or parcels of land.

(dd) "Surface mine survey" means a survey of the surface mine permit area, including the location of the surface mine, the surface or mineral tracts on which the surface mine is located, the physical features surrounding the surface mine, all creeks or streams near the surface mine and any other identifying characteristics of the land to specify the location of the surface mine permit area. A surface mine survey must be performed in accordance with other provisions of this code affecting surface mine surveys.

(ee) "Survey" or "land survey" means to measure a parcel of land and ascertain its boundaries, corners and contents or make any other authoritative measurements.

(ff) "Surveying" or "land surveying" means providing, or offering to provide, professional services using such sciences as mathematics, geodesy, and photogrammetry, and involving both:

(1) The making of geometric measurements and gathering related information pertaining to the physical or legal features of the earth, improvements on the earth, the space above, on or below the earth; and

(2) Providing, utilizing or developing the same into survey products such as graphics, data, maps, plans, reports, descriptions or projects. Professional services include acts of consultation, investigation, testimony evaluation, expert technical testimony, planning, mapping, assembling and interpreting gathered measurements and information related to any one or more of the following:

(A) Determining by measurement the configuration or contour of the earth's surface or the position of fixed objects thereon.

(B) Determining by performing geodetic surveys the size and shape of the earth or the position of any point on the earth.

(C) Determining the position for any survey control monument or reference point.

(D) Creating, preparing or modifying electronic, computerized or other data relative to the performance of the activities in the above-described paragraphs (A) through (C), inclusive, of this subdivision.

(E) Locating, relocating, establishing, reestablishing or retracing property lines or boundaries of any tract of land, road, right-of-way or easement.

(F) Making any survey for the division, subdivision, or consolidation of any tract or tracts of land.

(G) Locating or laying out alignments, positions or elevations for the construction of fixed works.

(H) Determining, by the use of principles of surveying, the position for any boundary or nonboundary survey monument or reference point, or establishing or replacing any such monument or reference point.

(I) Creating, preparing or modifying electronic or computerized or other data relative to the performance of the activities in the above-described paragraphs (E) through (H), inclusive, of this subdivision.

(3) Any person who engages in surveying, who by verbal claim, sign, advertisement, letterhead, card or in any other way represents themselves to be a professional surveyor, or who implies through the use of some other title that they are able to perform, or who does perform, any surveying service or work or any other service designated by the practitioner which is recognized as surveying, is practicing, or offering to practice, surveying within the meaning and intent of this article.

(gg) "Surveyor", "professional surveyor" or "land surveyor" means a person licensed to practice surveying under the provisions of this article.

(hh) "Surveyor, retired", "professional surveyor, retired" or "land surveyor, retired" means a licensed surveyor no longer practicing surveying, who has chosen to retire and has been granted the honorific title of "Professional Surveyor, Retired".

(ii) "Surveyor-in-charge" means a licensee designated by a firm to oversee the surveying activities and practices of the firm.

(jj) "Surveyor intern" means a person who has passed an examination covering the fundamentals of land surveying.

(kk) "Underground survey" means a survey that includes the measurement of underground mine workings and surface features relevant to the underground mine, the placing of survey points (spads) for mining direction, the performance of horizontal and vertical control surveys to determine the contours of a mine, the horizontal and vertical location of mine features, and the preparation of maps, reports and documents, including mine progress maps and mine ventilation maps. An underground mine survey must be performed in accordance with other provisions of this code affecting underground mine surveys.

§30-13A-4. Board of Professional Surveyors.

(a) The "West Virginia Board of Professional Surveyors" is continued. Any member of the board, except the endorsed underground surveyor member, in office on July 1, 2010, may continue to serve until his or her successor has been appointed and qualified.

(b) Prior to July 1, 2010, the Governor, by and with the advice and consent of the Senate, shall appoint one licensed professional surveyor with at least ten years of experience in land surveying to replace the endorsed underground surveyor.

(c) Commencing July 1, 2010, the board shall consist of the following five members with staggered terms:

(1) Three licensed professional surveyors with at least ten years of experience in land surveying;

(2) One person who has a license in another field of practice other than surveying and also who has a surveyor license by examination and has practiced surveying for at least ten years; and

(3) One citizen member who is not regulated under the provisions of this article and does not perform any services related to the practice of surveying under the provisions of this article.

(d) Each licensed member of the board, at the time of his or her appointment, must have held a license in this state for a period of not less than three years immediately preceding the appointment.

(e) Each member must be appointed by the Governor, by and with the advice and consent of the Senate, and must be a resident of this state during the appointment term.

(f) The term of each board member is four years.

(g) No member may serve more than two consecutive full terms and any member having served two full terms may not be appointed for one year after completion of his or her second full term. A member shall continue to serve until his or her successor has been appointed and qualified.

(h) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.

(i) A licensed member of the board immediately and automatically forfeits membership to the board if his or her license to practice is suspended or revoked.

(j) A member of the board immediately and automatically forfeits membership to the board if he or she is convicted of a felony under the laws of any jurisdiction or becomes a nonresident of this state.

(k) The board shall designate one of its members as chairperson and one member as secretary-treasurer.

(l) Each member of the board is entitled to receive compensation and expense reimbursement in accordance with section eleven, article one of this chapter.

(m) A majority of the members of the board shall constitute a quorum.

(n) The board shall hold at least one annual meeting. Other meetings shall be held at the call of the chairperson, or upon the written request of two members, at such time and place as designated in the call or request.

§30-13A-5. Powers and duties of the board.

The board has all the powers and duties set forth in article one of this chapter and also the following powers and duties:

(1) Hold meetings, conduct hearings and administer examinations and reexaminations;

(2) Set the requirements for a license, endorsement, surveyor-in-charge and certificate of authorization;

(3) Establish qualifications for licensure and procedures for submitting, approving and disapproving applications for a license, endorsement and certificate of authorization;

(4) Examine the qualifications of any applicant for a license and endorsement;

(5) Prepare, conduct, administer and grade examinations and reexaminations required under the provisions of this article;

(6) Determine the passing grade for the examinations and reexaminations required under the provisions of this article;

(7) Administer, or contract with third parties to administer, the examinations and reexaminations required under the provisions of this article;

(8) Maintain records of the examinations and reexaminations the board or a third party administers, including the number of persons taking the examination or reexamination and the pass and fail rate;

(9) Maintain an accurate registry of names and addresses of all licensees and endorsees;

(10) Maintain an accurate registry of names and addresses of firms holding a certificate of authorization;

(11) Establish the standards for surveys;

(12) Define the fees charged under the provisions of this article;

(13) Issue, renew, deny, suspend, revoke or reinstate licenses and endorsements, and discipline such persons;

(14) Issue, renew, deny, suspend, revoke or reinstate certificates of authorization and discipline such firms;

(15) Establish and implement the continuing education requirements for licensees and endorsees;

(16) Sue and be sued in its official name as an agency of this state;

(17) Hire, set the job requirements for, fix the compensation of and discharge investigators and the employees necessary to enforce the provisions of this article;

(18) Investigate alleged violations of the provisions of this article, the rules promulgated hereunder, and orders and final decisions of the board;

(19) Conduct hearings upon charges calling for discipline of a licensee, endorsee or certificate holder, or revocation or suspension of a license, endorsement or certificate of authorization;

(20) Set disciplinary action and issue orders;

(21) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article; and

(22) Take all other actions necessary and proper to effectuate the purposes of this article.

§30-13A-6. Rule-making authority.

(a) The board shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article, including:

(1) Setting the standards and requirements for licensure, endorsement, surveyor-in-charge and certificate of authorization;

(2) Setting the procedure for examinations and reexaminations;

(3) Establishing requirements for third parties to administer examinations and reexaminations;

(4) Establishing procedures for the issuance and renewal of a license, endorsement and certificate of authorization;

(5) Setting a schedule of fees;

(6) Establishing and implementing requirements for continuing education for licensees and endorsees;

(7) Evaluating the curriculum, experience and the instructional hours required for a license and endorsement;

(8) Denying, suspending, revoking, reinstating or limiting the practice of a licensee, endorsee or certificate holder;

(9) Establishing electronic signature requirements;

(10) Establishing minimum standards for surveys;

(11) Establishing a process to record plats;

(12) Establishing seal and document certification standards; and

(13) Proposing any other rules or taking other action necessary to effectuate the provisions of this article.

(b) All rules in effect on July 1, 2010, shall remain in effect until they are amended, modified, repealed or replaced.

§30-13A-7. Fees; special revenue account; administrative fines.

(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the State Treasury designated the "Board of Professional Surveyors Fund" which fund is continued. The fund shall be used by the board for the administration of this article. Except as may be provided in section eleven, article one of this chapter, the board shall retain the amounts in the special revenue fund from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.

(b) Any amounts received as fines imposed pursuant to this article shall be deposited into the General Revenue Fund of the State Treasury.

§30-13A-8. Education, experience and examination requirements for a surveying license.

(a) Before a person may apply for a surveying license, the person must have completed one of the following educational, experience and examination requirements:

(1) Has a four-year degree or a bachelor degree in surveying approved by the board, which degree must include a minimum of thirty hours of surveying or surveying-related courses, has passed an examination in the fundamentals of land surveying, has two years or more of experience in surveying in responsible charge, has passed an examination in the principles and practice of land surveying and has passed the West Virginia examination;

(2) Has a four-year degree or a bachelor degree, has completed a minimum of thirty hours of surveying or surveying-related courses, has passed an examination in the fundamentals of land surveying, has four years or more of experience in surveying, including two years of experience in responsible charge under the direct supervision of a licensee or a person authorized in another jurisdiction to engage in the practice of surveying, has passed an examination in the principles and practice of land surveying and has passed the West Virginia examination; or

(3) Has a two-year degree or an associate degree in surveying or a related field approved by the board, which degree must include a minimum of thirty hours of surveying or surveying-related courses, has passed an examination in the fundamentals of land surveying, has four years or more of experience in surveying, including two years of experience in responsible charge under the direct supervision of a licensee or a person authorized in another state or country to engage in the practice of surveying, has passed an examination in the principles and practice of land surveying and has passed the West Virginia examination.

(b) A person graduating from a two-year or four-year approved surveying degree program with a grade point average of 3.0 or higher is permitted to take the examination in the fundamentals of land surveying during his or her final semester.

(c) A person must pass the examination in the fundamentals of land surveying and complete the work experience before he or she is allowed to take the examination in the principles and practice of land surveying and the West Virginia examination.

(d) The examination in the fundamentals of land surveying, the examination in the principles and practice of land surveying and the West Virginia examination shall each be held at least once each year at the time and place determined by the board. A person who fails to pass all or any part of an examination may apply for reexamination, as prescribed by the board, and shall furnish additional information and fees as required by the board.

(e) A person who began the education, experience or examination requirements and were approved by the board prior to December 31, 2004, have until December 31, 2012, to complete such requirements for licensure.

§30-13A-9. Surveying license requirements.

(a) The board shall issue a surveying license to an applicant who meets the following requirements:

(1) Is of good moral character;

(2) Is at least eighteen years of age;

(3) Is a citizen of the United States or is eligible for employment in the United States;

(4) Holds a high school diploma or its equivalent;

(5) Has not been convicted of a crime involving moral turpitude; and

(6) Has completed all of one of the education, experience and examination requirements set out in section eight of this article.

(b) An application for a surveying license shall be made on forms provided by the board and include the following:

(1) Name and address of the applicant;

(2) Applicant's education and experience;

(3) Location and date of passage of all the examinations;

(4) Names of five persons for reference, at least three of whom shall be licensees or persons authorized in another jurisdiction to engage in the practice of surveying, and who have knowledge of the applicant's work; and

(5) Any other information the board prescribes.

(c) An applicant shall pay all the applicable fees.

(d) A license to practice surveying issued by the board prior to July 1, 2010, shall for all purposes be considered a license issued under this article: Provided, That a person holding a license to practice surveying issued by the board prior to July 1, 2010, must renew the license pursuant to the provisions of this article.

§30-13A-10. Scope of Practice.

(a) A licensee may measure a parcel of land and ascertain its boundaries, corners and contents or make any other authoritative measurements and, in the case of measuring a parcel of land, the licensee shall offer to record the map or plat of the measurements of the survey, for a reasonable fee, for the client, in the office of the clerk of the county commission of the county in which the land is located. The practice of surveying can be any of the following, but not limited to:

(1) The performance of a boundary, cadastral, construction, geodetic control, hydrographic, land, mortgage/loan inspection, oil or gas well, partition, photogrammetry, retracement, subdivision or surface mine survey; or

(2) The location, relocation, establishment, reestablishment, laying out or retracement of any property line or boundary of any parcel of land or of any road or utility right-of-way, easement, strip or alignment or elevation of any fixed works by a licensed surveyor.

(b) Activities that must be performed under the responsible charge of a professional surveyor, unless specifically exempted in subsection (c) of this section, include, but are not limited to, the following:

(1) The creation of maps and georeferenced databases representing authoritative locations for boundaries, the location of fixed works, or topography;

(2) Maps and georeferenced databases prepared by any person, firm, or government agency where that data is provided to the public as a survey product;

(3) Original data acquisition, or the resolution of conflicts between multiple data sources, when used for the authoritative location of features within the following data themes: Geodetic control, orthoimagery, elevation and hydrographic, fixed works, private and public boundaries, and cadastral information;

(4) Certification of positional accuracy of maps or measured survey data;

(5) Adjustment or authoritative interpretation of raw survey data;

(6) Geographic Information System (GIS) - based parcel or cadastral mapping used for authoritative boundary definition purposes wherein land title or development rights for individual parcels are, or may be, affected;

(7) Authoritative interpretation of maps, deeds, or other land title documents to resolve conflicting data elements;

(8) Acquisition of field data required to authoritatively position fixed works or cadastral data relative to geodetic control; and

(9) Analysis, adjustment or transformation of cadastral data of the parcel layer(s) with respect to the geodetic control layer within a GIS resulting in the affirmation of positional accuracy.

(c) The following items are not included as activities within the practice of surveying:

(1) The creation of general maps:

(A) Prepared by private firms or government agencies for use as guides to motorists, boaters, aviators, or pedestrians;

(B) Prepared for publication in a gazetteer or atlas as an educational tool or reference publication;

(C) Prepared for or by education institutions for use in the curriculum of any course of study;

(D) Produced by any electronic or print media firm as an illustrative guide to the geographic location of any event; or

(E) Prepared by laypersons for conversational or illustrative purposes. This includes advertising material and users guides.

(2) The transcription of previously georeferenced data into a GIS or LIS by manual or electronic means, and the maintenance thereof, provided the data are clearly not intended to indicate the authoritative location of property boundaries, the precise definition of the shape or contour of the earth, and/or the precise location of fixed works of humans.

(3) The transcription of public record data, without modification except for graphical purposes, into a GIS- or LIS-based cadastre (tax maps and associated records) by manual or electronic means, and the maintenance of that cadastre, provided the data are clearly not intended to authoritatively represent property boundaries. This includes tax maps and zoning maps.

(4) The preparation of any document by any federal government agency that does not define real property boundaries. This includes civilian and military versions of quadrangle topographic maps, military maps, satellite imagery, and other such documents.

(5) The incorporation or use of documents or databases prepared by any federal agency into a GIS/LIS, including but not limited to federal census and demographic data, quadrangle topographic maps, and military maps.

(6) Inventory maps and databases created by any organization, in either hard-copy or electronic form, of physical features, facilities, or infrastructure that are wholly contained within properties to which they have rights or for which they have management responsibility. The distribution of these maps and/or databases outside the organization must contain appropriate metadata describing, at a minimum, the accuracy, method of compilation, data source(s) and date(s), and disclaimers of use clearly indicating that the data are not intended to be used as a survey product.

(7) Maps and databases depicting the distribution of natural resources or phenomena prepared by foresters, geologists, soil scientists, geophysicists, biologists, archeologists, historians, or other persons qualified to document such data.

(8) Maps and georeferenced databases depicting physical features and events prepared by any government agency where the access to that data is restricted by statute. This includes georeferenced data generated by law enforcement agencies involving crime statistics and criminal activities.

§30-13A-11. Exemptions from licensing.

(a) The following persons are exempt from licensure under the provisions of this article:

(1) Any employee of a person or firm, when such employee is engaged in the practice of land surveying exclusively for the person or firm, by which employed, or, if a corporation, its parents, affiliates or subsidiaries, and such person, firm, association or corporation does not hold himself, herself or itself out to the public as being engaged in the business of land surveying.

(2) Any employee or officer of the United States, this state or any political subdivision thereof, or their agents, when such employee is engaged in the practice of land surveying exclusively for such governmental unit: Provided, That each county surveyor of lands first elected or first appointed after January 1, 2013, pursuant to section 1, article IX of the West Virginia Constitution, shall be a surveyor licensed pursuant to the provisions of this article and such licensee shall be in good standing.

(b) The minimum standards for surveys, established by the board, apply notwithstanding the exemptions provided by this section.

§30-13A-12. Surveyor intern requirements.

(a) To be recognized as a surveyor intern by the board, a person must meet the following requirements:

(1) Is of good moral character;

(2) Is at least eighteen years of age;

(3) Is a citizen of the United States or is eligible for employment in the United States;

(4) Holds a high school diploma or its equivalent;

(5) Has not been convicted of a crime involving moral turpitude;

(6) Has completed one of the education requirements set out in section eight of this article; and

(7) Has passed an examination in the fundamentals of land surveying.

(b) A surveyor intern must pass the principles and practice of land surveying examination and the West Virginia examination within ten years of passing the fundamentals of land surveying examination. If the examinations are not passed within ten years, then the surveyor intern must retake the fundamentals of land surveying examination.

§30-13A-13. License from another state.

The board may issue a license to practice surveying in this state to an applicant of good moral character who holds a valid license or other authorization to practice surveying from another state if the applicant demonstrates that:

(1) He or she or she holds a license or other authorization to practice surveying in another state which was granted after completion of educational, experience and examinations requirements substantially equivalent to those required in this state;

(2) He or she is not currently being investigated by a disciplinary authority of another state, does not have charges pending against his or her license or other authorization to practice surveying and has never had a license or other authorization to practice surveying revoked;

(3) He or she has not previously failed an examination for licensure in this state;

(4) He or she has paid all the applicable fees; and

(5) Has completed such other action as required by the board.

§30-13A-14. License, endorsement and certificate of authorization renewal requirements.

(a) A licensee or endorsee wanting to continue in active practice shall, annually or biennially, on or before July 1, renew his or her license or endorsement and pay a renewal fee.

(b) A certificate holder wanting to continue in active practice shall, annually or biennially, on or before January 1, renew the certificate and pay a renewal fee.

(c) The board shall charge a fee for each a renewal and a late fee for any renewal not paid by the due date.

(d) The board shall require as a condition of renewal that each licensee or endorsee complete continuing education.

(e) The board may deny an application for renewal for any reason which would justify the denial of an original application for a license, endorsement or certificate of authorization.

(f) The board may authorize the waiving of the renewal fee of a licensee or endorsee during the period when he or she is on active duty with any branch of the armed services.

§30-13A-15. Inactive license requirements.

(a) A licensee who does not want to continue in active practice shall notify the board in writing and be granted inactive status.

(b) A person granted inactive status shall pay an inactive fee and is exempt from the continuing education requirements and cannot practice in this state.

(c) When an inactive licensee wants to return to active practice, he or she must complete all the continuing education requirements and pay all the applicable fees as determined by the board.

§30-13A-16. Delinquent and expired license requirements.

(a) If a license is not renewed when due, then the board shall automatically place the licensee on delinquent status.

(b) The fee for a person on delinquent status shall increase at a rate, determined by the board, for each month or fraction thereof that the renewal fee is not paid, up to a maximum of thirty-six months.

(c) Within thirty-six months of being placed on delinquent status, if a licensee wants to return to active practice, he or she must complete all the continuing education requirements and pay all the applicable fees as determined by the board.

(d) After thirty-six months of being placed on delinquent status, a license is automatically placed on expired status and cannot be renewed. A person whose license has expired must reapply for a new license.

§30-13A-17. Retired license requirements.

(a) A licensee who does not want to continue practicing surveying and who has chosen to retire shall notify the board in writing and may be granted retired status.

(b) A person granted retired status shall be given the honorific title of "Professional Surveyor, Retired" and cannot practice in this state.

§30-13A-18. Requirements for when a person fails an examination.

(a) Any person failing any of the examinations for surveying is not permitted to work as a licensed surveyor under the provisions of this article until the person has passed all the examinations.

(b) A person failing the fundamentals of land surveying examination may still gain experience as required in section eight of this article until he or she passes the examination.

(c) A person who has passed the fundamentals of land surveying examination, but failed the principles and practice examination or West Virginia examination may only work as a surveyor intern under the direct supervision of a licensee or a person authorized in another jurisdiction to engage in the practice of surveying until he or she passes all of the examinations.

§30-13A-19. Display of license, endorsement and certificate of authorization.

(a) The board shall prescribe the form for a license, endorsement and certificate of authorization and may issue a duplicate license, endorsement and certificate of authorization upon payment of a fee.

(b) A licensee, endorsee and certificate holder shall conspicuously display his or her license, endorsement or certificate of authorization at his or her principal place of practice.

§30-13A-20. Certificate of authorization requirements.

(a) Each firm practicing surveying in West Virginia shall have a certificate of authorization.

(b) The board shall issue a certificate of authorization to a firm that:

(1) Practices surveying in West Virginia;

(2) Provides proof that the firm has employed a surveyor-in-charge;

(3) Has paid all applicable fees; and

(4) Completes such other requirements as specified by the board.

§30-13A-21. Surveyor-in-charge requirements.

(a) A firm practicing surveying must operate all surveying activities under the supervision and management of a surveyor-in-charge who shall be a licensee who is licensed in this state.

(b) The designated surveyor-in-charge is responsible for the surveying work in this state provided by the firm.

(c) A licensee cannot be designated as a surveyor-in-charge for more than one firm without approval of the board.

(d) A licensee who performs part-time or consulting surveying services for a firm cannot be designated as a surveyor-in-charge for that firm unless the licensee is an officer, a majority interest holder or owner of the firm.

(e) The responsibilities of a surveyor-in-charge include:

(1) Renewal of the certificate of authorization;

(2) Notification to the board of any change in the surveyor-in-charge;

(3) Supervising the firm's employees, including licensees, and other personnel providing surveying services in this state; and

(4) Ensuring that the policies of the firm adhere to the provisions of this article.

(f) The board may authorize a licensee to supervise the work of an individual that is not an employee of the licensee, nor is employed by the same firm as the licensee. The potential supervisor must apply to the board for this authorization.

§30-13A-22. Complaints; investigations; due process procedure; grounds for disciplinary action.

(a) The board may upon its own motion based on credible information, and shall upon the written complaint of any person, cause an investigation to be made to determine whether grounds exist for disciplinary action under this article.

(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the complaint to the licensee or certificate holder.

(c) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the licensee or certificate holder has violated this article.

(d) Upon a finding that probable cause exists that the licensee or certificate holder has violated this article, the board may enter into a consent decree or hold a hearing for the suspension or revocation of the license or certificate of authorization or the imposition of sanctions against the licensee or certificate holder. Any hearing shall be held in accordance with the provisions of this article.

(e) Any member of the board or the executive secretary of the board may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations against any person regulated by the article.

(f) Any member of the board or its executive secretary may sign a consent decree or other legal document on behalf of the board.

(g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend, restrict or revoke the license or certificate of authorization of, or impose probationary conditions upon or take disciplinary action against, any licensee or certificate holder for any of the following reasons once a violation has been proven by a preponderance of the evidence:

(1) Obtaining a license or certificate of authorization by fraud, misrepresentation or concealment of material facts;

(2) Being convicted of a felony or other crime involving moral turpitude;

(3) Being guilty of unprofessional conduct which placed the public at risk;

(4) Intentional violation of a lawful order or legislative rule of the board;

(5) Having had a license or other authorization to practice revoked or suspended, or other disciplinary action taken by the proper authorities of another jurisdiction;

(6) Aiding or abetting unlicensed practice; or

(7) Engaging in an act while acting in a professional capacity which has endangered or is likely to endanger the health, welfare or safety of the public.

(h) For the purposes of subsection (g) of this section, disciplinary action may include:

(1) Reprimand;

(2) Probation;

(3) Restrictions;

(4) Administrative fine, not to exceed $1,000 per day per violation;

(5) Mandatory attendance at continuing education seminars or other training;

(6) Practicing under supervision or other restriction; or

(7) Requiring the licensee or certificate holder to report to the board for periodic interviews for a specified period of time.

(i) In addition to any other sanction imposed, the board may require a licensee or certificate holder to pay the costs of the proceeding.

§30-13A-23. Procedures for hearing.

(a) Hearings are governed by the provisions of section eight, article one of this chapter.

(b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.

(c) If the hearing is conducted by an administrative law judge, at the conclusion of a hearing he or she shall prepare a proposed written order containing findings of fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the board so directs. The board may accept, reject or modify the decision of the administrative law judge.

(d) Any member or the executive secretary of the board has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.

(e) If, after a hearing, the board determines the licensee or certificate holder has violated provisions of this article, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.

§30-13A-24. Judicial review.

Any licensee or certificate holder adversely affected by a decision of the board entered after a hearing may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance with article six, chapter twenty-nine-a of this code.

§30-13A-25. Criminal proceedings; penalties.

(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a person has knowingly violated the provisions of this article, the board may bring its information to the attention of the appropriate law-enforcement officer who may cause appropriate criminal proceedings to be brought.

(b) If a court of law finds that a person knowingly violated this article, any order of the board or any final decision of the board, then the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined no less than $100 and no more than $1,000 for each violation, confinement in a regional correctional facility for up to thirty days for each violation, or both fined and confined.

§30-13A-26.

Repealed.

Acts, 2010 Reg. Sess., Ch. 148.

§30-13A-27.

Repealed.

Acts, 2010 Reg. Sess., Ch. 148.

§30-13A-28.

Repealed.

Acts, 2010 Reg. Sess., Ch. 148.

§30-13A-29.

Repealed.

Acts, 2010 Reg. Sess., Ch. 148.

§30-13A-30.

Repealed.

Acts, 2010 Reg. Sess., Ch. 148.

§30-13A-31.

Repealed.

Acts, 2010 Reg. Sess., Ch. 148.

§30-13A-32.

Repealed.

Acts, 2010 Reg. Sess., Ch. 148.

§30-13A-33.

Repealed.

Acts, 2010 Reg. Sess., Ch. 148.

§30-13A-34.

Repealed.

Acts, 2010 Reg. Sess., Ch. 148.

§30-13A-35.

Repealed.

Acts, 2010 Reg. Sess., Ch. 148.

§30-13A-36.

Repealed.

Acts, 2010 Reg. Sess., Ch. 148.

§30-13A-37.

Repealed.

Acts, 2010 Reg. Sess., Ch. 148.

§30-14-1. License required.

It is unlawful for any person to practice or offer to practice medicine and surgery as an osteopathic physician and surgeon in this state without a license or permit issued by the West Virginia Board of Osteopathic Medicine: Provided, That any license heretofore issued under the laws of this state, authorizing its holder to practice osteopathy and surgery, shall in no way be affected by the enactment of this article; except that the holder of every such license shall be subject to all of the provisions of this article respecting the requirements and obligations herein prescribed for the continuance in force of such license.

§30-14-2. Definitions.

“Accreditation Council for Graduate Medical Education” (ACGME) is the body responsible for accrediting the majority of graduate medical education programs for physicians (both medical doctors and doctors of osteopathic medicine), including medical internship, residency, and fellowship programs;

“Accredited osteopathic college” means a college of osteopathy and surgery which requires as a minimum prerequisite for admission preprofessional training of at least two years of academic work in specified scientific subjects, as prescribed by the board or by the college accrediting agency of the American Osteopathic Association, in an accredited college of arts and sciences and which requires for graduation a course of study approved by the board in accordance with the minimum standards established by the American Osteopathic Association;

“American Osteopathic Association” (AOA) is the entity that serves as the primary certifying body for osteopathic physicians and is the accrediting agency for osteopathic graduate medical education. Prior to the implementation of a single accreditation system for graduate medical education in the United States of America under the ACGME, which began in 2015 and will be fully implemented by July 1, 2020, the AOA also served as the accrediting body for osteopathic graduate medical education programs in the United States of America;

“Approved program of post-graduate clinical training” means a program of clinical training approved by, or subject to approval by, the American Osteopathic Association or approved by the Accreditation Council for Graduate Medical Education for the purposes of intern or resident training;

“Board” means the West Virginia Board of Osteopathic Medicine: Provided, That where used elsewhere in the code, the West Virginia Board of Osteopathy and Board of Osteopathy shall also mean the West Virginia Board of Osteopathic Medicine;

“License” means legal authorization issued by the board to a fully qualified osteopathic physician to engage in the regular practice of osteopathic medicine and surgery;

“Osteopathy” means that system of the healing art which places the chief emphasis on the structural integrity of the body mechanism as being the most important single factor in maintaining the well-being of the organism in health and disease;

“Permit” means a limited, legal authorization issued by the board to an osteopathic physician to practice osteopathic medicine and surgery in this state while serving under special circumstances of public need or while undergoing post-graduate clinical training as a prerequisite to licensure;

“Reciprocal endorsement” means a duly authenticated verification of the board, addressed to a board or agency of another country, state, territory, province, or the District of Columbia, vouching that a license issued to an osteopathic physician and surgeon pursuant to the laws of this state is currently valid and not suspended or revoked for any cause or causes specified in this article.

§30-14-3. Board of Osteopathic Medicine.

(a) The West Virginia Board of Osteopathy is continued and effective July 1, 2012 shall be known as the West Virginia Board of Osteopathic Medicine. The members of the board shall continue to serve until a successor is appointed and may be reappointed.

(b) The Governor shall appoint, by and with advice and consent of the Senate, two additional members and stagger their initial terms:

(1) One person who is a licensed osteopathic physician or surgeon; and

(2) One person who is a licensed osteopathic physician assistant.

(c) The board consists of the following seven members, who are appointed to staggered terms by the Governor with the advice and consent of the Senate:

(1) Four licensed osteopathic physicians and surgeons;

(2) One licensed osteopathic physician assistant; and

(3) Two citizen members, who are not associated with the practice of osteopathic medicine.

(d) After the initial appointment, a board member's term shall be for 5 years.

(e) The West Virginia Osteopathic Medical Association may submit recommendations to the Governor for the appointment of an osteopathic physician board member, and the West Virginia Association of Physician Assistants may submit recommendations to the Governor for the appointment of an osteopathic physician assistant board member.

(f) Each licensed member of the board, at the time of his or her appointment, must have held a license in this state for a period of not less than five years immediately preceding the appointment.

(g) Each member of the board must be a U.S. citizen and a resident of this state for a period of not less than five years immediately preceding the appointment and while serving as a member of the board.

(h) A member may not serve more than two consecutive full terms. A member having served two consecutive full terms may not be appointed for one year after completion of his or her second full term. A member may continue to serve until a successor has been appointed and has qualified.

(i) A vacancy on the board shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant and the appointment shall be made within sixty days of the vacancy.

(j) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.

(k) A member of the board immediately and automatically forfeits membership to the board if his or her license to practice is suspended or revoked, he or she is convicted of a felony under the laws of any jurisdiction, or he or she becomes a nonresident of this state.

(l) The board shall elect annually one of its members as a chairperson and one of its members as a secretary who shall serve at the will of the board.

(m) Each member of the board is entitled to compensation and expense reimbursement in accordance with article one of this chapter.

(n) A simple majority of the membership serving on the board at a given time constitutes a quorum.

(o) The board shall hold at least two meetings each year. Other meetings may be held at the call of the chairperson or upon the written request of two members, at the time and place as designated in the call or request.

(p) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state.

(q) The members of the board when acting in good faith, without malice and within the scope of their duties as board members shall enjoy immunity from individual civil liability.

§30-14-4. Application for license or educational permit.

(a) Each applicant for examination by the board, with the exception of assistants to osteopathic physicians and surgeons, as hereinafter provided, shall submit an application therefor on forms prepared and furnished by the board.

(b) Each applicant for a license shall furnish evidence, verified by oath and satisfactory to the board, establishing that the applicant has satisfied the following requirements:

(1) The applicant is 18 years of age or over;

(2) The applicant has graduated from an accredited osteopathic college;

 (3) The applicant has successfully completed a minimum of one year of post-doctoral, clinical training in a program approved by the American Osteopathic Association or the Accreditation Council for Graduate Medical Education.

 (c) Each applicant for an educational permit shall furnish evidence, verified by oath and satisfactory to the board, establishing that the applicant has satisfied the following requirements:

(1) The applicant is 18 years of age or over;

(2) The applicant has graduated from an accredited osteopathic college; and

(3) The applicant is under contract as an intern or resident in an approved program of post-graduate clinical training.

(d) The board may not issue a license or permit to any person until the applicant has paid the application fee established by legislative rule of the board.

(e) In order to give timely effect to the amendments to this section and §30-14-10 of this article, the board is authorized to propose a legislative rule consistent with these amendments as an emergency rule under the provisions of §29A-3-15 of this code.

§30-14-5. Examination.

In order to receive a license to practice osteopathic medicine and surgery, an applicant must satisfactorily complete a standard, national examination, specified through legislative rule of the board or an examination administered by the licensing authority of another state and approved by the board as equivalent to the national examination or to the former West Virginia state examination.

The examination for a license to practice medicine and surgery as an osteopathic physician and surgeon shall cover substantive and clinical knowledge in all the essential branches of medicine and surgery including anatomy, physiology, chemistry, pharmacology, pathology, public health--preventive medicine, surgery, obstetrics and gynecology, osteopathic medicine, materia medica principles and practice of osteopathy. The list of subjects may be expanded or regrouped at the discretion of the board.

§30-14-6. Issuance of license without examination; fee.

The board may at its discretion issue a license without examination to an applicant who has been licensed by the national board of examiners for osteopathic physicians and surgeons, and to an applicant who has been licensed by examination in any country, state, territory, province or the District of Columbia, provided the requirements for licensure in the country, state, territory, province or the District of Columbia in which the applicant is licensed are deemed by the board to have been equivalent to requirements for licensure in this state at the date such license was issued. The board may also at its discretion issue a license without examination to an osteopathic physician and surgeon who is a graduate of an accredited osteopathic college and who has passed the examination for admission into the medical corps of any of the armed services of the United States or the United States Public Health Service. But no license shall be issued under the provisions of this section until the person applying therefor shall have paid to the board a reasonable fee, the amount of such reasonable fee to be set by the board rules, and any other fees applicable to investigation.

§30-14-7. Reciprocal endorsement fee.

For the issuance of any reciprocal endorsement, the board shall collect a reasonable fee, the amount of such reasonable fee to be set by the board rules.

§30-14-8. Temporary permits.

A temporary permit to practice in areas where medical services are needed, as determined by the board, may be granted by the board to a qualified applicant eligible for licensure who applies for examination during the period between examinations or regular meetings of the board. A temporary permit may also be granted by the board to a qualified applicant eligible for licensure by national boards or reciprocity for a period of thirty days, in which time applicant must appear before one of the board members for an interview for permanent licensure. Such temporary permit shall be effective until its holder has either been granted or denied a license at the next regular meeting of the board. Such permit shall be subject to revocation when, in the opinion of the board, the terms and conditions prescribed in the permit have been violated.

§30-14-8A.

Repealed.

Acts, 1988 Reg. Sess., Ch. 99.

§30-14-9. Duties and rights of osteopathic physicians and surgeons.

Osteopathic physicians and surgeons licensed hereunder shall have the same rights and privileges as physicians and surgeons of other schools of medicine.

Osteopathic physicians and surgeons shall observe and be subject to all state and municipal regulations relative to reporting births and deaths and all matters pertaining to the public health with equal rights and obligations as physicians of other schools of medicine, and such reports shall be accepted by the officers of the department to which the same are made.

Osteopathic physicians and surgeons licensed hereunder shall have the same rights and privileges as physicians and surgeons of other schools of medicine with respect to the treatment of cases or the holding of health offices or offices in public institutions.

§30-14-9a. Osteopathic medical corporations — Application for registration; fee; notice to Secretary of State of issuance of certificate; action by secretary of state.

(a) One or more osteopathic physicians, allopathic physicians, or physician assistants may form an osteopathic medical corporation. An osteopathic physician or osteopathic physician assistant shall file a written application with the board on a form prescribed by the board, and shall furnish proof satisfactory to the board that the signer or all of the signers of such application is or are duly licensed. A reasonable fee, to be set by the board rules, shall accompany the application, no part of which shall be returnable.

(b) If the board finds that the signer or all of the signers of the application are licensed, the board shall notify the Secretary of State that a certificate of authorization has been issued.

(c) When the Secretary of State receives notification from the board that a certain individual or individuals has or have been issued a certificate of authorization, he or she shall attach the authorization to the corporation application and upon compliance by the corporation with §31-1-1 et seq. of this code, the Secretary of State shall notify the incorporators that the corporation may engage in the appropriate practice.

§30-14-9b. Same - Rights and limitations generally; biennial registration; fee; when practice to cease; admissibility and effect of certificate signed by board; penalty.

(a) An osteopathic medical corporation may practice osteopathic medicine and surgery only through individual osteopathic physicians and surgeons duly licensed to practice osteopathic medicine or surgery in the State of West Virginia, but such osteopathic physicians and surgeons may be employees rather than shareholders of such corporation, and nothing herein contained shall be construed to require a license for or other legal authorization of any individual employed by such corporation to perform services for which no license or other legal authorization is otherwise required. Nothing contained in sections five and nine-a and this section of this article is meant or intended to change in any way the rights, duties, privileges, responsibilities and liabilities incident to the osteopathic physician-patient relationship nor is it meant or intended to change in any way the personal character of the osteopathic physician-patient relationship. A corporation holding such certificate of authorization shall register biennially, on or before June 30, on a form prescribed by the board, and shall pay an annual reasonable registration fee, the amount of such reasonable fee to be set by the board rules.

(b) An osteopathic medical corporation holding a certificate of authorization shall cease to engage in the practice of osteopathic medicine and surgery upon being notified by the board that any of its shareholders is no longer a duly licensed osteopathic physician or surgeon, or when any shares of such corporation have been sold or disposed of to a person who is not a duly licensed osteopathic physician or surgeon: Provided, That the personal representative of a deceased shareholder shall have a period, not to exceed twelve months from the date of such shareholder's death, to dispose of such shares; but nothing contained herein shall be construed as affecting the existence of such corporation or its right to continue to operate for all lawful purposes other than the practice of osteopathic medicine and surgery.

(c) No corporation shall practice osteopathic medicine or surgery, or any of its branches, or hold itself out as being capable of doing so, without a certificate from the board; nor shall any corporation practice osteopathic medicine or surgery or any of its branches, or hold itself out as being capable of doing so, after its certificate has been revoked, or if suspended, during the term of such suspension. A certificate signed by the secretary of the board to which is affixed the official seal of the board to the effect that it appears from the records of the board that no such certificate to practice osteopathic medicine or surgery or any of its branches in the state has been issued to any such corporation specified therein or that such certificate has been revoked or suspended shall be admissible in evidence in all courts of this state and shall be prima facie evidence of the facts stated therein.

(d) Any officer, shareholder or employee of such corporation who participates in a violation of any provision of this section shall be guilty of a misdemeanor and, upon conviction, shall be fined not exceeding $1,000.

§30-14-10. Renewal of license; fee; refresher training a prerequisite; effect of failure to renew; reinstatement; educational permit.

(a) All holders of licenses to practice as osteopathic physicians and surgeons in this state shall renew the licenses biennially on or before July 1, by the payment of a renewal fee, to the board. The board shall notify each licensee of the necessity of renewing his or her license at least thirty days prior to the expiration of the license.

(b) As a prerequisite to renewal of a license issued by the board, each licensee shall furnish biennially to the board satisfactory evidence of having completed thirty-two hours of educational refresher course training, of which the total amount of hours must be approved by the American Osteopathic Association, and fifty percent of the required thirty-two hours shall be classified as category (1).

(c) The failure to renew a license shall operate as an automatic suspension of the rights and privileges granted by its issuance. The board may propose rules for legislative approval, pursuant to the provisions of article three, chapter twenty-nine-a of this code, providing that an osteopathic physician may renew a license on an inactive basis.

(d) A license suspended by a failure to make a biennial renewal thereof may be reinstated by the board upon compliance of the licensee with the following requirements:

(1) Presentation to the board of satisfactory evidence of educational refresher training of quantity and standard approved by the board for the previous two years;

(2) Payment of all fees for the previous two years that would have been paid had the suspended licensee maintained his or her license in good standing; and

(3) Payment to the board of a reinstatement fee specified by legislative rule of the board.

(e) An educational permit authorizes the holder to practice osteopathic medicine and surgery only for work performed within an approved program of post-graduate clinical training under the supervision of a duly licensed osteopathic or allopathic physician. The first educational permit issued to a graduate of an accredited osteopathic college may be valid for a period of fifteen months and subsequent educational permits issued to the same person may be valid for not more than twelve months. An educational permit shall expire upon the termination of the permit holder from an approved program of post-graduate clinical training and may also be suspended or revoked by the board at any time upon grounds defined by the board by legislative rule.

§30-14-11. Refusal, suspension or revocation of license; suspension or revocation of certificate of authorization.

 (a) The board may refuse to issue a license, suspend or revoke a license, fine a licensee, order restitution or rehabilitative action by a licensee, or order a combination thereof for any one or more of the following causes:

(1) Conviction of a felony, as shown by a certified copy of the record of the trial court: Provided, That if the conviction is for an offense that involves the transfer, delivery or illicit possession of a prescription drug, then the board shall revoke or refuse to issue the license of the convicted physician or physician’s assistant for a period of time until the physician or physician’s assistant demonstrates a record of rehabilitation and that he or she has the integrity, moral character and professional competence to practice in this state;

(2) Conviction of a misdemeanor involving moral turpitude;

(3) Violation of any provision of this article regulating the practice of osteopathic physicians and surgeons;

(4) Fraud, misrepresentation or deceit in procuring or attempting to procure admission to practice;

(5) Gross malpractice;

(6) Advertising by means of knowingly false or deceptive statements;

(7) Advertising, practicing or attempting to practice under a name other than one’s own;

(8) Habitual drunkenness, or habitual addiction to the use of morphine, cocaine or other habit-forming drugs; or

(9) Knowingly failing to report to the board any act of gross misconduct committed by another licensee of the board.

(b) The board shall also have the power to suspend or revoke for cause any certificate of authorization issued by it. It shall have the power to reinstate any certificate of authorization suspended or revoked by it.

(c) An osteopathic physician licensed under this article may not be disciplined for providing expedited partner therapy in accordance with article four-f, chapter sixteen of this code.

§30-14-11a. Records of board; expungement; examination; notice; public information; voluntary agreements relating to alcohol or chemical dependency; confidentiality of same; physician-patient privileges.

(a) The board shall maintain a permanent record of the names of all osteopathic physicians and osteopathic physician assistants, licensed, certified or otherwise lawfully practicing in this state and of all persons applying to be so licensed to practice, along with an individual historical record for each such individual containing reports and all other information furnished the board under this article or otherwise. When the board receives a report submitted pursuant to the provisions of section twelve-a of this article, or when the board receives or initiates a complaint regarding the conduct of anyone practicing osteopathic medicine or surgery, the board shall create a separate complaint file in which the board shall maintain all documents relating to the investigation and action upon the alleged conduct.

(b) Upon a determination by the board that any report submitted to it is without merit, the report shall be expunged from the individual's historical record.

(c) An osteopathic physician, osteopathic physician assistant, or applicant, or authorized representative thereof, has the right, upon request, to examine his or her own individual records maintained by the board pursuant to this article and to place into such record a statement of reasonable length of his or her own view of the correctness or relevance of any information existing in such record. Such statement shall at all times accompany that part of the record in contention.

(d) An osteopathic physician, osteopathic physician assistant or applicant has the right to seek through court action the amendment or expungement of any part of his or her historical record.

(e) An osteopathic physician, osteopathic physician assistant or applicant shall be provided written notice within thirty days of the placement and substance of any information in his or her individual historical record that pertains to him or her and that was not submitted to the board by him or her, other than requests for verification of the status of the individual's license and the board's responses thereto.

(f) Except for information relating to biographical background, education, professional training and practice, a voluntary agreement entered into pursuant to subsection (h) of this section and which has been disclosed to the board, prior disciplinary action by any entity, or information contained on the licensure application, the board shall expunge information in an individual's complaint file unless it has initiated a proceeding for a hearing upon such information within two years of the placing of the information into the complaint file.

(g) Orders of the board relating to disciplinary action against a physician, or physician assistant are public information.

(h) (1) In order to encourage voluntary participation in monitored alcohol, chemical dependency or major mental illness programs and in recognition of the fact that major mental illness, alcoholism and chemical dependency are illnesses, an osteopathic physician or osteopathic physician assistant licensed, certified, or otherwise lawfully practicing in this state or applying for a license to practice in this state may enter into a voluntary agreement with the board-designated physician health program. The agreement between the physician or physician assistant and the physician health program shall include a jointly agreed upon treatment program and mandatory conditions and procedures to monitor compliance with the program of recovery.

(2) Any voluntary agreement entered into pursuant to this subsection shall not be considered a disciplinary action or order by the board, shall not be disclosed to the board and shall not be public information if:

(A) Such voluntary agreement is the result of the physician or physician assistant self-enrolling or voluntarily participating in the board-designated physician health program;

(B) The board has not received nor filed any written complaints regarding said physician or physician assistant relating to an alcohol, chemical dependency or major mental illness affecting the care and treatment of patients, nor received any written reports pursuant to subsection (b), section fourteen of this article relating to an alcohol or chemical dependency impairment; and

(C) The physician or physician assistant is in compliance with the voluntary treatment program and the conditions and procedures to monitor compliance.

(3) If any osteopathic physician or osteopathic physician assistant enters into a voluntary agreement with the board-approved physician health program, pursuant to this subsection and then fails to comply with, or fulfill the terms of said agreement the physician health program shall report the noncompliance to the board within twenty-four hours. The board may initiate disciplinary proceedings pursuant to section eleven of this article or may permit continued participation in the physician health program or both.

(4) If the board has not instituted any disciplinary proceeding as provided in this article, any information received, maintained, or developed by the board relating to the alcohol or chemical dependency impairment of any osteopathic physician or osteopathic physician assistant and any voluntary agreement made pursuant to this subsection shall be confidential and not available for public information, discovery or court subpoena, nor for introduction into evidence in any medical professional liability action or other action for damages arising out of the provision of or failure to provide health care services.

In the board's annual report of its activities to the Governor and the Legislature required under section twelve, article one of this chapter, the board shall include information regarding the success of the voluntary agreement mechanism established therein: Provided, That in making such report the board shall not disclose any personally identifiable information relating to any osteopathic physician or osteopathic physician assistant participating in a voluntary agreement as provided herein.

Notwithstanding any of the foregoing provisions, the board may cooperate with and provide documentation of any voluntary agreement entered into pursuant to this subsection to licensing boards in other jurisdictions of which the board has become aware and as may be appropriate.

(i) Any physician-patient privilege does not apply in any investigation or proceeding by the board or by a medical peer review committee or by a hospital governing board with respect to relevant hospital medical records, while any of the aforesaid are acting within the scope of their authority: Provided, That the disclosure of any information pursuant to this provision shall not be considered a waiver of any such privilege in any other proceeding.

§30-14-12. Offenses; penalties.

(a) Each of the following acts constitutes a misdemeanor, punishable upon conviction by a fine of not less than $1,000 nor more than $10,000:

(1) The obtaining of or an attempt to obtain a license or permit to practice in the profession for money or any other thing of value, by fraudulent misrepresentation;

(2) The making of any willfully false oath or affirmation whenever an oath or affirmation is required by this article; and

(3) Advertising, practicing or attempting to practice under a name other than one’s own.

(b) Any person who practices or attempts to practice osteopathic medicine without a license or permit is guilty of a felony and, upon conviction, shall be fined not more than $10,000, or imprisoned in a correctional facility for not less than one year nor more than five years, or both fined and imprisoned.

§30-14-12a. Initiation of suspension or revocation proceedings allowed and required; reporting of information to board pertaining to professional malpractice and professional incompetence required; penalties; probable cause determinations; referrals to law-enforcement authorities.

(a) The board may independently initiate suspension or revocation proceedings as well as initiate suspension or revocation proceedings based on information received from any person, including but not limited to the Board of Pharmacy as required by §60A-9-1 et seq. of this code.

The board shall initiate investigations as to professional incompetence or other reasons for which a licensed osteopathic physician and surgeon may be adjudged unqualified if the board receives notice that three or more judgments or any combination of judgments and settlements resulting in five or more unfavorable outcomes arising from medical professional liability have been rendered or made against such osteopathic physician within a five-year period.

(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 osteopathic physician known to that medical peer review committee. Copies of such requests for information from a medical peer review committee may be provided to the subject osteopathic physician 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 provided, the subject osteopathic physician has 15 days to comment on the requested information and such comments must be considered by the board.

After the completion of a hospital’s formal disciplinary procedure and after any resulting legal action, the chief executive officer of such hospital shall report in writing to the board within 60 days the name of any member of the medical staff or any other osteopathic physician 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 osteopathic physician by the hospital upon the recommendation of its medical staff 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.

Any professional society in this state comprised primarily of osteopathic physicians or physicians and surgeons of other schools of medicine which takes formal disciplinary action against a member relating to professional ethics, professional incompetence, professional malpractice, moral turpitude, or drug or alcohol abuse, shall report in writing to the board within 60 days of a final decision the name of such member, together with all pertinent information relating to such action.

Every person, partnership, corporation, association, insurance company, professional society, or other organization providing professional liability insurance to an osteopathic physician in this state shall submit to the board the following information within 30 days from any judgment, dismissal, or settlement of a civil action or of any claim involving the insured: The date of any judgment, dismissal, 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 such other information required by the board.

Within 30 days after a person known to be an osteopathic physician licensed or otherwise lawfully practicing medicine and surgery in this state or applying to be 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 such osteopathic physician 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 §29A-5-1 et seq. of this code.  After reviewing the record of such hearing, if the board determines that a violation of this subsection has occurred, the board shall assess a civil penalty of not less than $1,000 nor more than $10,000 against such violator. The board shall notify anyone assessed 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 30 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 §29A-5-4 of this code.

Any person may report to the board relevant facts about the conduct of any osteopathic physician in this state which in the opinion of such person amounts to professional malpractice 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 osteopathic physicians or physicians and surgeons of other schools of medicine to suspend, restrict, or revoke the privileges or membership of such osteopathic physician.

(c) In every case considered by the board under this article regarding suspension, revocation, or issuance of a license 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 cause to suspend, revoke, or refuse to issue a license as set forth in §30-14-11(a) of this code. If such probable cause is found to exist, all proceedings on such charges shall be open to the public who are entitled to all reports, records, and nondeliberative materials introduced at such hearing, including the record of the final action taken: Provided, That any medical records, which were introduced at such hearing and which pertain to a person who has not expressly waived his or her right to the confidentiality of such records, shall not be open to the public nor is the public entitled to such records. If a finding is made that probable cause does not exist, the public has a right of access to the complaint or other document setting forth the charges, the findings of fact and conclusions supporting such finding that probable cause does not exist, if the subject osteopathic physician consents to such access.

(d) If the board receives notice that an osteopathic physician has been subjected to disciplinary action or has had his or her credentials suspended or revoked by the board, a medical peer review committee, a hospital or professional society, as defined in §30-14-12(a) of this code, for three or more incidents in a five-year period, the board shall require the osteopathic physician to practice under the direction of another osteopathic physician for a specified period to be established by the board.

(e) Whenever the board receives credible information that a licensee of the board is engaging or has engaged in criminal activity or the commitment of a crime under state or federal law, the board shall report the information, to the extent that sensitive or confidential information may be publicly disclosed under law, to the appropriate state or federal law-enforcement authority and/or prosecuting authority. This duty exists in addition to and is distinct from the reporting required under federal law for reporting actions relating to health care providers to the United States Department of Health and Human Services.

§30-14-12b. Special volunteer medical license; civil immunity for voluntary services rendered to indigents.

(a) There is hereby established a special volunteer medical license for physicians 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 clinical setting of clinics organized, in whole or in part, for the delivery of health care services without charge. The special volunteer medical license shall be issued by the West Virginia Board of Osteopathic Medicine to physicians licensed or otherwise eligible for licensure under this article and the rules promulgated hereunder without the payment of any application fee, license fee or renewal fee, shall be issued for a fiscal year or part thereof, and shall be renewable annually. The board shall develop application forms for the special license provided for in this subsection which shall contain the physician’s acknowledgment that: (1) The physician’s practice under the special volunteer medical license will be exclusively and totally devoted to providing medical care to needy and indigent persons in West Virginia; (2) the physician will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation but may donate to the clinic the proceeds of any reimbursement, for any medical services rendered under the special volunteer medical license; (3) the physician will supply any supporting documentation that the board may reasonably require; and (4) the physician agrees to continue to participate in continuing medical education as required of physicians in active practice.

(b) Any person engaged in the active practice of osteopathy in this state whose license is in good standing may donate their expertise for the medical care and treatment of indigent and needy patients pursuant to an arrangement with a clinic organized, in whole or in part, for the delivery of health care services without charge to the patient. Services rendered pursuant to an arrangement may be performed in either the physician’s office or the clinical setting.

(c) Any physician who renders any medical service to indigent and needy patients of clinics organized, in whole or in part, for the delivery of health care services without charge under a special volunteer medical license authorized under subsection (a) of this section or pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) 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 medical service at the clinic unless the act or omission was the result of the physician’s gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there must be a written agreement between the physician and the clinic pursuant to which the physician will provide voluntary noncompensated medical services under the control of the clinic to patients of the clinic before the rendering of any services by the physician at the clinic: Provided, That any clinic entering into such written agreement shall be required to maintain liability coverage of not less than $1 million per occurrence.

(d) Notwithstanding the provisions of subsection (a) of this section, a clinic organized, in whole or in part, for the delivery of health care services without charge shall not be relieved from imputed liability for the negligent acts of a physician rendering voluntary medical services at or for the clinic under a special volunteer medical license authorized under said subsection or who renders such services pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) of this section.

(e) For purposes of this section, “otherwise eligible for licensure” means the satisfaction of all the requirements for licensure as listed in section ten of this article and in the legislative rules promulgated hereunder, except the fee requirements of subsections (b) and (d) of said section and of the legislative rule promulgated by the board relating to fees.

(f) Nothing in this section may be construed as requiring the board to issue a special volunteer medical license to any physician whose medical license is or has been subject to any disciplinary action or to any physician who has surrendered a medical license or caused such license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her medical license, or who has elected to place a medical license in inactive status in lieu of having a complaint initiated or other action taken against his or her medical license, or who have been denied a medical license.

(g) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any physician 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 a physician who holds a special volunteer medical license or who renders such care and treatment pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) of this section.

§30-14-12c. License to practice as an osteopathic physician and surgeon at certain state veterans nursing home facilities.

(a) The board is authorized and encouraged to the best of its ability to issue a license to practice as an osteopathic physician and surgeon in this state without examination to a physician that currently holds a license to practice as an osteopathic physician and surgeon at a Federal Veterans Administration Hospital upon completion of an application form prescribed by the board and who presents satisfactory proof to the board that he or she is currently employed and practicing in a Federal Veterans Administration Hospital that is located in a county in which a nursing home operated by the West Virginia Department of Veteran's Assistance is located: Provided, That the osteopathic physician shall maintain an valid, unrestricted license to practice osteopathic medicine in another state.

(b) The practice for which an osteopathic physician and surgeon is licensed under this section is limited to practice in a nursing home operated by the West Virginia Department of Veteran's Assistance that is located in the same county in which the Federal Veterans Administration Hospital where the individual is employed.

(c) No fee may be assessed to an individual licensed or seeking licensure pursuant to this section.

(d) The board shall propose emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code to implement the provisions of this section.

(e) The board shall report to the Legislative Oversight Commission on Health and Human Resources Accountability and the Legislative Oversight Commission on Education Accountability by July 1, 2016 on the implementation of this section including the number of licenses issued, number of complaints, and any other pertinent legislation.

§30-14-12d. Telemedicine practice; requirements; exceptions; definitions; rulemaking.

(a) Definitions. – For the purposes of this section:

(1) “Chronic nonmalignant pain” means pain that has persisted after reasonable medical efforts have been made to relieve the pain or cure its cause and that has continued, either continuously or episodically, for longer than three continuous months. “Chronic nonmalignant pain” does not include pain associated with a terminal condition or illness or with a progressive disease that, in the normal course of progression, may reasonably be expected to result in a terminal condition or illness.

(2) “Physician” means a person licensed or registered by the West Virginia Board of Osteopathic Medicine to practice osteopathic medicine in West Virginia.

(3) “Store and forward telemedicine” means the asynchronous computer-based communication of medical data or images from an originating location to a physician at another site for the purpose of diagnostic or therapeutic assistance.

(4) “Telemedicine” means the practice of medicine using tools such as electronic communication, information technology, store and forward telecommunication, audio only telephone calls, or other means of interaction between a physician in one location and a patient in another location, with or without an intervening health care provider.

(5) “Telemedicine technologies” means technologies and devices which enable secure communications and information exchange in the practice of telemedicine, and typically involve the application of secure real-time audio/video conferencing or similar secure video services, remote monitoring or store and forward digital image technology, or audio only telephone calls, to provide or support health care delivery by replicating the interaction of a traditional in-person encounter between a physician and a patient.

(b) Licensure or registration. –

(1) The practice of medicine occurs where the patient is located at the time the telemedicine technologies are used.

(2) A physician who practices telemedicine must be licensed as provided in this article or registered as provided in §30-1-1 et seq. of this code.

(3) This section does not apply to:

(A) An informal consultation or second opinion, at the request of a physician who is licensed to practice medicine in this state: Provided, That the physician requesting the opinion retains authority and responsibility for the patient’s care; and

(B) Furnishing of medical assistance by a physician in case of an emergency or disaster if no charge is made for the medical assistance.

(c) Physician-patient relationship through telemedicine encounter. –

(1) A physician-patient relationship may not be established through:

Text-based communications such as e-mail, Internet questionnaires, text-based messaging, or other written forms of communication.

(2) If an existing physician-patient relationship is not present prior to the utilization to telemedicine technologies, or if services are rendered solely through telemedicine technologies, a physician-patient relationship may only be established:

(A) Through the use of telemedicine technologies which incorporate interactive audio using store and forward technology, real-time videoconferencing, or similar secure video services during the initial physician-patient encounter;

(B) For the practice of pathology and radiology, a physician-patient relationship may be established through store and forward telemedicine or other similar technologies; or

(C) Through the use of audio-only calls or conversations that occur in real time. Patient communication though audio-visual communication is preferable, if available or possible. Audio-only calls or conversations that occur in real time may be used to establish the physician-patient relationship.

(3) Once a physician-patient relationship has been established, either through an in-person encounter or in accordance with subdivision (2) of this subsection, the physician may utilize any telemedicine technology that meets the standard of care and is appropriate for the patient presentation.

(d) Telemedicine practice. – A physician using telemedicine technologies to practice medicine shall:

(1) Verify the identity and location of the patient;

(2) Provide the patient with confirmation of the identity and qualifications of the physician;

(3) Provide the patient with the physical location and contact information of the physician;

(4) Establish or maintain a physician-patient relationship which conforms to the standard of care;

(5) Determine whether telemedicine technologies are appropriate for the patient presentation for which the practice of medicine is to be rendered;

(6) Obtain from the patient appropriate consent for the use of telemedicine technologies;

(7) Conduct all appropriate evaluations and history of the patient consistent with traditional standards of care for the patient presentation;

(8) Create and maintain health care records for the patient which justify the course of treatment and which verify compliance with the requirements of this section; and

(9) The requirements of §30-3-13(a)(1) through §30-3-13(a)(8) of this code do not apply to the practice of pathology or radiology medicine through store and forward telemedicine.

(e) Standard of care. –

The practice of medicine provided via telemedicine technologies, including the establishment of a physician-patient relationship and issuing a prescription via electronic means as part of a telemedicine encounter, are subject to the same standard of care, professional practice requirements, and scope of practice limitations as traditional in-person physician-patient encounters. Treatment, including issuing a prescription, based solely on an online questionnaire does not constitute an acceptable standard of care.

(f) Patient records. –

The patient record established during the use of telemedicine technologies shall be accessible and documented for both the physician and the patient, consistent with the laws and legislative rules governing patient health care records. All laws governing the confidentiality of health care information and governing patient access to medical records shall apply to records of practice of medicine provided through telemedicine technologies. A physician solely providing services using telemedicine technologies shall make documentation of the encounter easily available to the patient, and subject to the patient’s consent, to any identified care provider of the patient.

(g) Prescribing limitations. –

(1) A physician or podiatrist who practices medicine to a patient solely through the utilization of telemedicine technologies may not prescribe to that patient any controlled substances listed in Schedule II of the Uniform Controlled Substances Act: 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.

(2) The prescribing limitations in this subsection do not apply when a physician is providing treatment to patients who are minors, or if 18 years of age or older, who are enrolled in a primary or secondary education program and are diagnosed with intellectual or developmental disabilities, neurological disease, Attention Deficit Disorder, Autism, or a traumatic brain injury in accordance with guidelines as set forth by organizations such as the American Psychiatric Association, the American Academy of Child and Adolescent Psychiatry, or the American Academy of Pediatrics. The physician must maintain records supporting the diagnosis and the continued need of treatment.

(3) The prescribing limitations in this subsection do not apply to a hospital, excluding the emergency department, when a physician submits an order to dispense a controlled substance, listed in Schedule II of the Uniform Controlled Substances Act, to a hospital patient for immediate administration in a hospital.

(4) A physician or podiatrist may not prescribe any pain-relieving controlled substance listed in Schedule II of the Uniform Controlled Substance Act as part of a course of treatment for chronic nonmalignant pain solely based upon a telemedicine encounter: 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.

(5) A physician or health care provider may not prescribe any drug with the intent of causing an abortion. The term “abortion” has the same meaning ascribed to it in §16-2F-2 of this code.

(h) Exceptions. –

This section does not prohibit the use of audio-only or text-based communications by a physician who is:

(1) Responding to a call for patients with whom a physician-patient relationship has been established through an in-person encounter by the physician;

(2) Providing cross coverage for a physician who has established a physician-patient or relationship with the patient through an in-person encounter; or

(3) Providing medical assistance in the event of an emergency.

(i) Rulemaking. –

The West Virginia Board of Medicine and West Virginia Board of Osteopathic Medicine may propose joint rules for legislative approval in accordance with §29A-3-1, of this code to implement standards for and limitations upon the utilization of telemedicine technologies in the practice of medicine in this state. The West Virginia Board of Medicine and the West Virginia Board of Osteopathic Medicine may promulgate emergency rules pursuant to the provisions of §29A-3-15 of this code to implement the provisions of the bill passed during the 2021 session of the Legislature.

(j) Preservation of the traditional physician-patient relationship. –

Nothing in this section changes the rights, duties, privileges, responsibilities, and liabilities incident to the physician-patient relationship, nor is it meant or intended to change in any way the personal character of the physician-patient relationship. This section does not alter the scope of practice of any health care provider or authorize the delivery of health care services in a setting, or in a manner, not otherwise authorized by law.

§30-14-13. Limitation of article.

The practice of medicine and surgery by persons possessing the degree of doctor of medicine and authorized by the laws of this state to practice medicine and surgery shall in no way be affected by the provisions of this article.

§30-14-14. Rulemaking.

 (a) The board shall propose rules for legislative approval, in accordance with article three, chapter twenty-nine-a of this code, to implement the provisions of this article, including:

(1) Standards and requirements for licenses and permits;

(2) Procedures for examinations and reexaminations;

(3) Requirements for third parties to prepare or administer, or both, examinations and reexaminations;

(4) Educational and experience requirements;

(5) Standards for approval of courses and curriculum;

(6) Procedures for the issuance and renewal of licenses and permits;

(7) A fee schedule;

(8) Regulation of osteopathic medical corporations;

(9) Regulation of profession limited liability companies;

(10) Regulation of osteopathic physician assistants;

(11) Continuing education requirements for licensees;

(12) The standards for and limitations upon the utilization of telemedicine technologies;

(13) The procedures for denying, suspending, restricting, revoking, reinstating or limiting the practice of licensees and permittees;

(14) Adopting a standard for ethics;

(15) Requirements for revoked licenses or permits; and

(16) Any other rules necessary to effectuate the provisions of this article.

(b) All of the board's rules in effect and not in conflict with these provisions shall remain in effect until they are amended or rescinded.

§30-14-15

Repealed

Acts, 2017 Reg. Sess., Ch. 119.

§30-14-16. Combining staff functions with West Virginia Board of Medicine.

The West Virginia Board of Osteopathic Medicine may employ investigators, attorneys, clerks and administrative staff in collaboration with the West Virginia Board of Medicine to share duties and functions between the two boards when it may be efficient and practical for the functioning of the boards. Any sharing of staff or staff resources shall be documented and performed pursuant to the provisions of section nineteen, article one of this chapter.

§30-14A-1.

Repealed.

Acts, 2014 Reg. Sess., Ch. 142.

§30-14A-2.

Repealed.

Acts, 2014 Reg. Sess., Ch. 142.

§30-14A-3.

Repealed.

Acts, 2014 Reg. Sess., Ch. 142.

§30-14A-4.

Repealed.

Acts, 2014 Reg. Sess., Ch. 142.

§30-14A-5.

Repealed.

Acts, 2014 Reg. Sess., Ch. 142.

§30-15-1

Repealed.

Acts, 2016 Reg. Sess., Ch. 175

§30-15-2

Repealed.

Acts, 2016 Reg. Sess., Ch. 175

§30-15-3

Repealed.

Acts, 2016 Reg. Sess., Ch. 175

§30-15-4

Repealed.

Acts, 2016 Reg. Sess., Ch. 175

§30-15-5

Repealed.

Acts, 2016 Reg. Sess., Ch. 175

§30-15-6

Repealed.

Acts, 2016 Reg. Sess., Ch. 175

§30-15-7

Repealed.

Acts, 2016 Reg. Sess., Ch. 175

§30-15-7a

Repealed.

Acts, 2016 Reg. Sess., Ch. 175

§30-15-7b

Repealed.

Acts, 2016 Reg. Sess., Ch. 175

§30-15-7c

Repealed.

Acts, 2016 Reg. Sess., Ch. 175

§30-15-8

Repealed.

Acts, 2016 Reg. Sess., Ch. 175

§30-16-1. Purpose and legislative intent.

It is declared to be a policy of this state that the practice of chiropractic is a privilege granted to qualified persons and that, in order to safeguard the public health, safety and welfare, protect the public from the unprofessional, improper, incompetent and unlawful practice of chiropractic, it is necessary to provide regulatory authority over persons practicing chiropractic. The primary responsibility and obligation of the West Virginia board of chiropractic is to protect the public.

§30-16-2. License required; exceptions.

(a) No person may practice or offer to practice, in this state, chiropractic without a license issued by the West Virginia board of chiropractic. A certificate or license issued under the laws of this state, authorizing its holder to practice chiropractic, before the effective date of this article is not affected by the enactment of this article, except that the holder of a certificate of license issued prior to the effective date of this article is subject to all the provisions of this article respecting the requirements and obligations prescribed for the continuance in force of the certificate of license.

(b) This article does not prohibit:

(1) Students from engaging in training in a chiropractic school accredited by the counsel on chiropractic education or its successor;

(2) Licensed chiropractors from providing service in cases of emergency where no fee or other consideration is contemplated, charged or received;

(3) Commissioned chiropractic officers of the Armed Forces of the United States and chiropractic officers of the United States Public Health Service or the Veterans' Administration of the United States from discharging their official duties, except:

(A) Those officers who hold chiropractic licenses in the state are subject to the provisions of this article; and

(B) Those officers shall be fully licensed to practice chiropractic in one or more jurisdictions of the United States;

(4) Individuals from practicing the tenets of a religion or administering to the sick or suffering by mental or spiritual means in accord with the tenets. This provision does not exempt these individuals from the public health laws of the state or federal government; or

(5) A person from administering a lawful domestic or family remedy to a member of his or her own family.

§30-16-3. Definitions.

The following words, unless the context clearly indicates otherwise, have the meaning ascribed to them in this section:

(1) "Board" means the West Virginia board of chiropractic;

(2) "Chiropractor" means a practitioner of chiropractic;

(3) "Chiropractic services" means those health care services provided within the scope of chiropractic practice as defined by this article and by chiropractors licensed by the board;

(4) "Chiropractic" is the science and art which utilizes the inherent recuperative powers of the body and the relationship between the neuromusculoskeletal structures and functions of the body, particularly of the spinal column and the nervous system, in the restoration and maintenance of health. The use of the designation doctor of chiropractic, chiropractor, chiropractic physician or D.C., is the practice of chiropractic.

The practice of chiropractic also includes the examination and assessment of members of the public that are not patients of the examining chiropractor. Further, the practice of chiropractic includes the review of information relating to the duration and necessity of chiropractic care that affects the course of care, the treatment plan or payment and reimbursement concerning chiropractic patients residing within the State of West Virginia.

The practices and procedures which may be employed by doctors of chiropractic are based on the academic and clinical training received in and through chiropractic colleges accredited by the council of chiropractic education or its successors and as determined by the board. These include the use of diagnostic, analytical and therapeutic procedures specifically including the adjustment and manipulation of the articulations and adjacent tissues of the human body, particularly of the spinal column, including the treatment of intersegmental disorders. Patient care and management is conducted with due regard for environmental and nutritional factors, as well as first aid, hygiene, sanitation, rehabilitation and physiological therapeutic procedures designed to assist in the restoration and maintenance of neurological integrity and homeostatic balance;

(5) "Spinal manipulation" and "spinal adjustment" are interchangeable terms that identify a method of skillful and beneficial treatment where a person uses direct thrust or leverage to move a joint of the patient's spine beyond its normal range of motion, but without exceeding the limits of anatomical integrity.

§30-16-4. West Virginia Board of Chiropractic; establishment and composition.

(a) The "West Virginia Board of Chiropractic" is continued. Effective July 1, 2012, the board is composed of four licensed chiropractors and one person to represent the interest of the public. All are appointed by the Governor, with the advice and consent of the Senate, from a list of three names recommended by the West Virginia Chiropractic Society, Incorporated. Each chiropractic member of the board shall have been a resident of and engaged in the active practice of chiropractic in the state for a period of at least five years preceding his or her appointment.

(b) As existing board members' terms expire, newly appointed board members are appointed by the Governor for a term of office of three years. No member may serve more than two full consecutive three-year terms. When a vacancy in the membership of the board occurs for a cause other than the expiration of a term, the Governor shall appoint a new member from a list of three names recommended by West Virginia Chiropractic Society, Incorporated, to fill the unexpired portion of the term of office.

(c) The Governor may remove any member of the board in case of incompetency, neglect of duty, gross immorality or malfeasance in office.

(d) The board shall conduct an annual training program to familiarize new board members with their duties.

(e) Each member of the board is entitled to receive compensation in the amount paid to members of the Legislature for interim duties for each day or substantial portion that he or she is engaged in the work of the board or of its committees. Members are entitled to be reimbursed for actual and necessary expenses incurred in carrying out his or her duties.

§30-16-5. Powers and duties of the board.

(a) The board shall:

(1) Administer, coordinate and enforce the provisions of this article, evaluate the qualifications of applicants, supervise the examination of applicants, issue or deny original or endorsement licenses;

(2) Investigate allegations of violations of this article and impose penalties if violations of this article have occurred;

(3) Propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, which shall after adoption govern and control the professional conduct of every person who holds a license to practice chiropractic in this state, and which shall include, but not be limited to, rules that:

(A) Delineate qualifications for licensure, including qualifications for practice in specialties;

(B) Specify requirements for the renewal of licensure;

(C) Set forth procedures for licensure of chiropractors;

(D) Establish a fee schedule for the amount and payment of all fees and charges;

(E) Establish standards of professional conduct;

(F) Establish procedures for disciplinary actions and complaint resolutions; and

(G) Provide for duties of board members;

(4) Evaluate the professional education and training of applicants for licensure and licensure renewal;

(5) Evaluate the previous professional performance of applicants for licensure and licensure renewal;

(6) Accept or deny applications for license renewal;

(7) Establish appropriate fees and charges to support the active and effective pursuit of its legal responsibilities;

(8) Employ personnel as determined by its needs and budget;

(9) Request legal advice and assistance, as needed, from the Attorney General;

(10) Enter into contracts necessary to carry out its responsibilities under this article, including contracts for professional services that may include investigation, financing or legal services;

(11) Develop and adopt a budget; and

(12) Communicate disciplinary actions to relevant state and federal authorities and to other state chiropractic licensing authorities.

§30-16-6. Application for license; requirements for licensure.

(a) Any person wanting to practice chiropractic in this state shall apply to the board for license to practice and shall provide the board and attest to the following information and documentation in a manner required by the board:

(1) His or her full name, and any other name ever used, current address, social security number and date and place of birth;

(2) A recent signed photograph and sample of handwriting;

(3) Originals of all documents and credentials required by the board or notarized photocopies of other verification acceptable to the board;

(4) A list of all jurisdictions, United States or foreign, in which the applicant is licensed or has applied for licensure to practice chiropractic or is authorized or has applied for authorization to practice chiropractic;

(5) A list of all jurisdictions, United States or foreign, in which the applicant has been denied licensure or authorization to practice chiropractic or has voluntarily surrendered a license or an authorization to practice chiropractic;

(6) A list of all sanctions, judgments, awards, settlements or convictions against the applicant in any jurisdiction, United States or foreign, that would constitute grounds for disciplinary action under this article or the board's rules;

(7) A detailed educational history, including places, institutions, dates and program descriptions, of all his or her education beginning with secondary schooling including all college, preprofessional, professional and professional graduate education; and

(8) Any other information or documentation the board may later determine necessary and as adopted by reasonable rules in accordance with the provisions of article three, chapter twenty-nine-a of this code.

(b) Each applicant shall establish to the board that the applicant:

(1) Is eighteen years of age or older;

(2) Is of good moral character;

(3) Is a graduate of an accredited high school giving a four-year course or has an education equivalent to the same;

(4) Has attended for at least two academic years, consisting of no less than sixty semester hours, an accredited academic college or university and that after July 1, 2005, the applicant has obtained a bachelor's degree consisting of no less than one hundred twenty-eight semester hours from an accredited academic college or university, with a minimum of sixty hours in basic sciences mandated by the council on chiropractic education;

(5) Is a holder of the degree of doctor of chiropractic from and a graduate of a chiropractic college or school located in the United States, its territories or possessions which was approved by the council on chiropractic education or its successor at the time the degree was conferred or that the applicant is the holder of a degree of doctor of chiropractic from college of a foreign country that the board determines is acceptable as set forth in section eight;

(6) Has passed the national board of chiropractic licensing examination Parts I, II, III and IV, satisfactory to the board and any other examination, test or procedure determined necessary by the board;

(7) Has demonstrated familiarity with the statutes and rules of the jurisdiction relating to the practice of chiropractic and acknowledges in writing that he or she has read and understands this article and the current rules relating to the practice of chiropractic in West Virginia;

(8) Is physically, mentally and professionally capable of practicing chiropractic in a manner acceptable to the board and submits to a physical, mental or professional competency examination or a drug dependency evaluation considered necessary by the board; and

(9) Has paid all fees and completed and attested to the accuracy of all application and information forms required by the board.

(c) The applicant is responsible for verifying to the satisfaction of the board, the validity of all credentials required for his or her chiropractic licensure. The board shall review and verify chiropractic credentials and screen applicant records through recognized national chiropractic physician information services and data banks.

§30-16-7. Examination; certificates of license.

(a) No person may receive a license to practice chiropractic unless he or she successfully completes the national board of chiropractic examination Parts I, II, III and IV and an oral examination administered by the board covering jurisprudence. Examinations shall be conducted at least two times throughout the calendar year and the board shall issue certificates of license to all applicants who successfully pass the examinations. No license may be issued under this section until the person applying has paid to the board the prescribed fee.

(b) All applicants are required to attain a minimum passing score in each national board Parts I, II, III and IV examinations. All applicants are required to secure an average grade of seventy percent on the oral examination. If an applicant does not successfully complete the oral examination, he or she may retake the oral examination. If a satisfactory score is not achieved on the second attempt, the applicant shall take and successfully complete a national special purposes examination for chiropractic examination before sitting for another oral examination.

(c) Any individual found by the board to have engaged in conduct that subverts or attempts to subvert the chiropractic licensing examination process is, at the discretion of the board, subject to having the scores on the licensing examination withheld or declared invalid, being disqualified from the practice of chiropractic or subjected to other appropriate sanctions. The federation of chiropractic licensing boards shall be informed of all such actions. The board shall provide notification to all applicants of the prohibitions on conduct that subverts or attempts to subvert the licensing examination process and of the sanctions imposed for the conduct. A copy of the notification attesting that he or she has read and understood the notification shall be signed by the applicant and filed with his or her application.

§30-16-7a. Special volunteer chiropractor license; civil immunity for voluntary services rendered to indigents.

(a) There is established a special volunteer license for chiropractors retired or retiring from active practice who wish to donate their expertise for the care and treatment of indigent and needy patients in the clinical setting of clinics organized, in whole or in part, for the delivery of health care services without charge. The special volunteer license provided by this section shall be issued by the West Virginia Board of Chiropractic to chiropractors licensed or otherwise eligible for licensure pursuant to this article and the rules promulgated hereunder without the payment of an application fee, license fee or renewal fee, and the initial license shall be issued for the remainder of the licensing period, and renewed consistent with the boards other licensing requirements. The board shall develop application forms for the special volunteer license provided in this section which shall contain the applicant’s acknowledgment that:

(1) The applicant’s practice pursuant to the special volunteer license will be exclusively devoted to providing chiropractic care to needy and indigent persons in West Virginia;

(2) The applicant may not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation but may donate to the clinic the proceeds of any reimbursement for any chiropractic services rendered pursuant to the special volunteer license;

(3) The applicant shall supply any supporting documentation that the board may reasonably require; and

(4) The applicant shall continue to participate in continuing education as required by the board for special volunteer chiropractor’s licenses.

(b)  Any person engaged in the active practice of chiropractic in this state whose license is in good standing may donate their expertise for the care and treatment of indigent and needy patients pursuant to an arrangement with a clinic organized, in whole or in part, for the delivery of health care services without charge to the patient. Services rendered pursuant to an arrangement may be performed in either the chiropractor’s office or the clinical setting.

(c) Any chiropractor who renders any chiropractic service to indigent and needy patients of a clinic organized, in whole or in part, for the delivery of health care services without charge pursuant to a special volunteer license authorized pursuant to subsection (a) of this section or an arrangement with a clinic as authorized pursuant to subsection (b) 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 chiropractic service at the clinic unless the act or omission was the result of gross negligence or willful misconduct on the part of the chiropractor. For the immunity pursuant to this subsection to apply, there must be a written agreement between the chiropractor and the clinic stating that the chiropractor will provide voluntary uncompensated chiropractic services under the control of the clinic to patients of the clinic before the rendering of any services by the chiropractor 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.

(d) Notwithstanding the provisions of subsection (c) 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 a chiropractor rendering voluntary chiropractic services at or for the clinic pursuant to a special volunteer license authorized pursuant to this section or who renders such care and treatment pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) of this section.

(e) For purposes of this section, “otherwise eligible for licensure” means the satisfaction of all the requirements for licensure for a chiropractor except the fee requirements.

(f) Nothing in this section may be construed as requiring the board to issue a special volunteer license to any chiropractor whose license is or has been subject to any disciplinary action or to any chiropractor who has surrendered a license or caused a license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her license, or who has elected to place a license in inactive status in lieu of having a complaint initiated or other action taken against his or her license or who has been denied a license.

(g) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any chiropractor covered pursuant to 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 policy holder or any beneficiary there of the policy, to any claim covered by the terms of the 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 a chiropractor who holds a special volunteer license or who renders such care and treatment pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) of this section.

§30-16-8. Licensing of foreign graduates.

(a) Any person wanting to practice chiropractic in this state who is a graduate of a chiropractic school located outside the United States, its territories or possessions, shall establish to the board that the applicant:

(1) Possesses a degree of doctor of chiropractic or a board approved equivalent based upon satisfactory completion of educational programs acceptable to the board;

(2) Is eligible by virtue of his or her chiropractic education and training for unrestricted licensure or authorization to practice chiropractic in the country in which he or she received that education and training;

(3) Has successfully completed all required parts of the examination conducted by the national board of chiropractic;

(4) Has a demonstrated command of the English language; and

(5) Has satisfied all applicable requirements of the United States immigration and naturalization service.

(b) All credentials, diplomas and other required documentation in a foreign language submitted to the board by or on behalf of an applicant, shall be accompanied by notarized English translations acceptable to the board.

§30-16-9. Licensure by endorsement; temporary licensure; restricted licensure.

(a) The board is authorized, in its discretion, to issue a license by endorsement to an applicant who:

(1) Has complied with all current chiropractic licensing requirements except for the oral examination;

(2) Has passed a chiropractic licensing examination given in English in another state, the District of Columbia or a territory or possession of the United States, that the board determines is equivalent to its own current examination requirements;

(3) Has a valid current chiropractic license in another state, the District of Columbia or a territory or possession of the United States without any past or current disciplinary action taken upon that license; and

(4) Successfully completes an oral examination administered by the board covering jurisprudence and clinical competency.

(b) No license may be issued under the provisions of this section until the person applying has paid to the board the prescribed fee.

(c) The board is authorized, in its discretion, to issue a temporary license to visiting chiropractic physicians and visiting professors for the treatment of individuals involved with special events to applicants demonstrably qualified for a full and unrestricted chiropractic license under the requirements of this article and that hold a current valid license in another state, territory or possession of the United States or the District of Columbia without any past or current disciplinary actions against that license. A temporary license may not be issued under the provisions of this section until the person applying has paid to the board the prescribed fee.

(d) The board is authorized to issue conditional, restricted or otherwise circumscribed licenses for a limited and specific period of time as it determines necessary.

§30-16-10. Licensing chiropractors from other states; fee.

Persons licensed to practice chiropractic under the laws of any other state, territory or the District of Columbia having requirements equivalent to those of this article, and extending like privileges to practitioners of this state, may in the discretion of the board be licensed to practice in this state without examination. No license may be issued under the provisions of this section until the person applying has completed satisfactorily an oral examination and has paid the fee required by the board.

§30-16-11. Disciplinary actions.

(a) The board may take disciplinary action against any licensee or certificate holder holding a license or certificate issued under this article after giving reasonable notice and an opportunity to be heard pursuant to the provisions of section one, article five, chapter twenty-nine-a of this code, when it finds that any person has engaged in conduct in violation of the rules adopted by the board, including, but not limited to, the following:

(1) Fraud or misrepresentation in applying for or procuring a chiropractic license or in connection with applying for or procuring periodic renewal of a chiropractic license;

(2) Cheating on or attempting to subvert the chiropractic licensing examination or examinations;

(3) Being found guilty of a crime in any jurisdiction, which offense is a felony, involves moral turpitude or directly relates to the practice of chiropractic. Any plea of nolo contendere is a conviction for the purposes of this subdivision;

(4) Conduct likely to deceive, defraud or harm the public;

(5) Making a false or misleading statement regarding his or her skill or the efficiency or value of the chiropractic treatment;

(6) Representing to a patient that an incurable condition, sickness, disease or injury can be cured;

(7) Willfully or negligently violating the confidentiality between chiropractic physician and patient except as required by law;

(8) Negligence in the practice of chiropractic as determined by the board;

(9) Being found mentally incompetent or insane by any court of competent jurisdiction;

(10) Being physically or mentally unable to engage safely in the practice of chiropractic;

(11) Practice or other behavior that demonstrates an incapacity or incompetence to practice chiropractic;

(12) Use of any false, fraudulent or deceptive statement in any document connected with the practice of chiropractic;

(13) Practicing chiropractic under a false or assumed name;

(14) Aiding or abetting the practice of chiropractic by an unlicensed, incompetent or impaired person;

(15) Allowing another person or organization to use his or her license to practice chiropractic;

(16) Commission of any act of sexual abuse, sexual misconduct or sexual exploitation related to the licensee's practice of chiropractic;

(17) Being addicted or habituated to a drug or intoxicant;

(18) Obtaining any fee by fraud, deceit or misrepresentation;

(19) Employing abusive billing practices;

(20) Directly or indirectly giving or receiving any fee, commission, rebate or other compensation for professional services not actually rendered: Provided, That this prohibition does not preclude the legal functioning of lawful professional partnerships, corporations or associations;

(21) Disciplinary action of another state or jurisdiction against a license or other authorization to practice chiropractic based upon acts or conduct by the licensee similar to acts or conduct that constitute grounds for action as defined in this section, a certified copy of the record of the action taken by the other state or jurisdiction being conclusive evidence thereof;

(22) Failure to report to the board within thirty days of any adverse action, disciplinary action, sanctions or punishment taken against him or her by another state licensing board or licensing jurisdiction, United States or foreign, by a peer review body, health care institution, professional or chiropractic society or association, governmental agency, law-enforcement agency or court for acts or conduct similar to acts or conduct that constitute grounds for action as defined in this section;

(23) Failure to report to the board within thirty days of the surrender of a license or other authorization to practice chiropractic in another state or jurisdiction or surrender of membership on any chiropractic staff or in any chiropractic or professional association or society while under disciplinary investigation by any of those authorities or bodies for acts or conduct similar to acts or conduct that constitute grounds for action as defined in this section;

(24) Any adverse judgment, award or settlement against the licensee resulting from a chiropractic liability claim related to acts or conduct similar to acts or conduct that constitute grounds for action as defined in this section;

(25) Failure to report to the board within thirty days any adverse judgment, settlement or award arising from a chiropractic liability claim related to acts or conduct similar to acts or conduct that constitute grounds for action as defined in this section;

(26) Failure to transfer or release pertinent and necessary chiropractic records to another physician in a timely fashion when legally requested to do so by the subject patient or by a legally designated representative of the subject patient;

(27) Improper management of chiropractic patient records;

(28) Failure to furnish the board, its investigators or representatives, information legally requested by the board;

(29) Failure to cooperate with a lawful investigation conducted by the board; or

(30) Violation of any provision of this article or the rules of the board or of an action, stipulation or agreement with the board.

(b) Upon a finding of a violation by a chiropractor of one or more of the grounds for discipline contained in subsection (a) of this section, the board may impose one or more of the following penalties:

(1) Revocation of the chiropractic license;

(2) Suspension of the chiropractic license;

(3) Probation;

(4) Stipulations, limitations, restrictions and conditions relating to practice;

(5) Reprimand;

(6) Monetary redress to another party;

(7) A period of free public or charity service;

(8) Satisfactory completion of an educational, training or treatment program, or a combination of programs;

(9) Imposition of an administrative penalty, not to exceed $1,000 per day per violation; or

(10) Payment of administrative costs for the disciplinary action, including, but not limited to, attorney fees, investigation expenses, hearing examiner fees, witness fees and cost of monitoring compliance with the board's orders.

(c) The board may issue a confidential letter of concern to a licensee when, though evidence does not warrant formal proceedings, the board has noted indications of possible misconduct of a licensee that could lead to serious consequences and formal action. In the letter of concern, the board is also authorized at its discretion to request clarifying information from the licensee.

(d) The board may require professional competency, physical, mental or chemical dependency examinations of any applicant or licensee including withdrawal and laboratory examination of bodily fluids.

(e) In every disciplinary case considered by the board pursuant to this article, whether initiated by the board or upon complaint or information from any person or organization, the board shall make a preliminary determination whether probable cause exists to substantiate charges due to any reasons set forth in this section. If probable cause is not found in the complaint, all proceedings relating to the complaint and the response of the licensee or his or her representative shall be held confidential and may not be made available to the public or to any other state or federal agency or court. If probable cause is found to exist, all proceedings on the charges shall be open to the public, who are entitled to all reports, records and nondeliberative materials introduced at the hearing, including the record of any final action taken: Provided, That any medical records pertaining to the person who has not waived his or her right to the confidentiality of the records are not open to the public. For purposes of the hearing, the board has the power to subpoena witnesses, documents or any other tangible evidence. The board may, in its discretion, meet in an informal conference with the accused licensee who seeks or agrees to the conference. Disciplinary action taken against a licensee as a result of the informal conference and agreed to in writing by the board and the accused licensee is binding and a matter of public record. The holding of an informal conference does not preclude an open formal hearing if the board determines it is necessary.

(f) If the board determines that the evidence in its possession indicates that a chiropractor's continuation in practice or unrestricted practice constitutes an immediate threat to the public health and safety or when a licensee is convicted of a felony, whether or not related to the practice of chiropractic, the board may seek an injunction in the circuit court of proper jurisdiction for immediate relief implementing any of the board's authority provided in this article.

(g) All disciplinary actions taken by the board shall be reported to the federation of licensing boards, appropriate federal agencies and any other state boards with which the disciplined licensee may also be registered or licensed and all the actions, including related findings of fact and conclusions of law, are matters of public record. Voluntary surrender of and voluntary limitations on a chiropractic license of any person are also matters of public record and shall also be reported to the appropriate agencies.

§30-16-12. Impaired chiropractors.

(a) As contained in this section the term impairment is defined as the inability of a licensee to practice chiropractic with reasonable skill and safety by reason of:

(1) Mental illness;

(2) Physical illness, including, but not limited to, physical deterioration that adversely affects cognitive, motor or perceptive skills; or

(3) Habitual or excessive use or abuse of drugs defined in law as controlled substances, of alcohol or other substances that impair ability.

(b) The board may after a probable cause determination and hearing require a licensee or applicant to submit to a mental or physical examination or a chemical dependency evaluation by physicians designated by the board. The results of the examination or evaluation are admissible at any hearing before the board despite any claim of privilege under contrary rule or statute. Every person who receives a license to practice chiropractic or files an application for a license to practice chiropractic thereby consents to submit to a mental or physical examination or a chemical dependency evaluation and has waived all objections to the admissibility of the results in any hearing before the board. If a licensee or applicant fails to submit to an examination or evaluation when properly directed to do so by the board, the board may enter a final order upon proper notice, hearing and proof of their refusal.

(c) Upon the determination by the board after examination and hearing that a licensee is impaired the board shall take one or more of the following actions:

(1) Direct the licensee to submit to care, counseling or treatment acceptable to the board;

(2) Suspend, limit or restrict the chiropractic license for the duration of the impairment; or

(3) Revoke the chiropractic license.

(d) Any licensee or applicant prohibited from practicing chiropractic under this section, shall at reasonable intervals be afforded an opportunity to demonstrate to the satisfaction of the board that he or she can assume or begin the practice of chiropractic with reasonable skill and safety.

§30-16-13. Protected action, immunity and communication.

(a) There is no monetary liability on the part of, and no cause of action for damages arising against, any current or former member, officer, administrator, peer review committee member, staff member, committee member, examiner, representative, agent, employee, consultant, witness or any other person serving or having served the board, either as a part of the board's operation or as an individual, as a result of any act, omission, proceeding, conduct or decision related to his or her duties undertaken or performed in good faith and within the scope of the function of the board.

(b) A current or former member, officer, administrator, staff member, committee member, examiner, representative, agent, employee, consultant or any other person serving or having served the board may request the state to defend him or her against any claim or action arising out of any act, omission, proceeding, conduct or decision related to his or her duties undertaken or performed in good faith and within the scope of the function of the board.

(c) Every communication made by or on behalf of any person, institution, agency or organization to the board or to any person designated by the board relating to an investigation or the initiation of an investigation, whether by way of report, complaint or statement, is privileged. No action or proceeding, civil or criminal, is permitted against the person, institution, agency or organization by whom or on whose behalf the communication was made in good faith.

§30-16-14. Enforcement.

(a) The board shall enforce the provisions of this article and the rules adopted under this article. If any person refuses to obey any decision or order of the board, the board or, upon the request of the board, the Attorney General or the appropriate prosecuting attorney, may file an action for the enforcement of the decision or order, including injunctive relief, in the circuit court of the county of residence of the person. After due hearing, the court shall order the enforcement of the decision or order, or any part thereof, if legally and properly made by the board and where appropriate, injunctive relief. The board is authorized to issue a cease and desist order to restrain any person or any corporation or association and its officers and directors from violating the provisions of this article.

(b) Each of the following acts is a misdemeanor, punishable upon conviction by a fine of not less than $500 nor more than maximum allowed by state law, or by confinement in a county or regional jail for not less than thirty days nor more than one year, or both, in the discretion of the court:

(1) The obtaining of or attempt to obtain a license by the use of fraud, deceit or willful misrepresentation;

(2) The practice or attempting to practice as a chiropractor without a license granted under the provisions of this article, or practicing or attempting to practice while the license is suspended or after the license has been revoked;

(3) The use of any title to induce belief that the use of the title is engaged in the practice of chiropractic, if the use of the title has not fully complied with the provisions of this article;

(4) The buying, selling or fraudulent procurement of any diploma of, or license to practice chiropractic; and

(5) The violation of any provision of this article regulating the practice of chiropractors.

(c) Each day any person violates a provision of this article is a separate and distinct offense.

§30-16-15. Annual renewal; failure to renew; reinstatement.

(a) All holders of certificates of license to practice chiropractic in this state shall renew them annually on or before July 1, of each year by:

(1) Paying the board an annual renewal fee in an amount determined by the board;

(2) Returning the renewal application form with all required information complete and accurate; and

(3) Presenting to the board evidence of completion of at least eighteen hours of continuing education each year of which up to six hours may be mandated in special subjects by the board.

(b) The board shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, establishing all additional continuing education requirements and all criteria for fulfillment of the continuing education requirements.

(c) The board shall notify each certificate holder by mail, at least thirty days prior to July 1, of each year, of the necessity of renewing his or her certificate. Failure to renew a certificate of license to practice chiropractic operates as an automatic suspension of the rights and privileges granted by its issuance.

(d) A certificate or license suspended by a failure to make the required annual renewal may be reinstated by the board, except as provided in subsection (e) of this section, upon:

(1) Presentation of evidence of completion of the required hours of continuing education for each year the license has been suspended; and

(2) Payment of all fees that would have been paid if the certificate holder had maintained the certificate in good standing and the payment to the board of a reinstatement fee in an amount to be determined by the board.

(e) No certificate may be reinstated after a lapse of two years. After a lapse of two years, a license may be issued only after the former certificate holder, subsequent to the lapse, has fulfilled all other requirements of licensure as set forth in section six of this article and has passed the national special purposes examination for chiropractic examination.

§30-16-16. Initiation of suspension or revocation proceedings allowed and required; reporting of information to board pertaining to professional malpractice and professional incompetence required; penalties.

(a) The board may independently initiate suspension or revocation proceedings as well as initiate suspension or revocation proceedings based on information received from any person. The board shall initiate investigations as to professional incompetence or other reasons for which a licensed chiropractor may be adjudged unqualified if the board receives notice that five or more judgments or settlements arising from professional liability have been rendered or made against the chiropractor.

(b) Upon request of the board, any peer review committee in this state shall report any information that may relate to the practice or performance of any chiropractor known to that peer review committee. Copies of the requests for information from a peer review committee may be provided to the subject chiropractor if, in the discretion of the board, the provision of the copies does not jeopardize the board's investigation. In the event that copies are provided, the subject chiropractor is allowed fifteen days to comment on the requested information and the comments shall be considered by the board.

(c) After the completion of a hospital's formal disciplinary procedure and after any resulting legal action, the chief executive officer of the hospital shall report in writing to the board within sixty days the name of any chiropractor who is a member of the staff or any other chiropractor 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 the action. The chief executive officer shall also report any other formal disciplinary action taken against any chiropractor by the hospital upon the recommendation of its professional staff 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.

(d) Any professional society in this state comprised primarily of chiropractors which takes any form of disciplinary action against a member relating to professional ethics, professional incompetence, professional malpractice, 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.

(e) Every person, partnership, corporation, association, insurance company, professional society or other organization providing professional liability insurance to a chiropractor in this state shall submit to the board the following information within thirty days from any judgment, dismissal or settlement of a civil action or of any claim involving the insured:

(1) The date of any judgment, dismissal or settlement;

(2) Whether any appeal has been taken on the judgment, and if so, by which party;

(3) The amount of any settlement or judgment against the insured; and

(4) Other information the board requires.

(f) Within thirty days after a person known to be a chiropractor licensed or otherwise lawfully practicing chiropractic in this state or applying to be so licensed is convicted of a felony 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 the record of the convicting court. The abstract shall include the name and address of the chiropractor or applicant, the nature of the offense committed and the final judgment and sentence of the court.

(g) 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 $1,000 nor more than $10,000 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.

(h) Any person may report to the board relevant facts about the conduct of any chiropractor in this state which in the opinion of the person amounts to professional malpractice or professional incompetence.

(i) The board shall provide forms for filing reports pursuant to this section. Reports submitted in other forms including verbal report shall be accepted by the board.

(j) 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 chiropractors to suspend, restrict or revoke the privileges or membership of the chiropractor.

§30-16-17. Who may practice chiropractic; title of chiropractor; minimum education required for spinal manipulation.

(a) No person licensed under chapter thirty of this code may perform or authorize a spinal manipulation or spinal adjustment without having first received a minimum of four hundred hours of classroom instruction in spinal manipulation or spinal adjustment and a minimum of eight hundred hours of supervised clinical training at a facility where spinal manipulation or spinal adjustment is a primary method of treatment. Violation of this section is an unlawful practice of chiropractic and is grounds for the offending health care provider's licensing board to suspend, revoke or refuse to renew provider's license or take any other disciplinary action allowed by law.

(b) Every chiropractor who has complied with the provisions of this article is entitled to practice chiropractic in this state. The title of chiropractor shall be doctor of chiropractic and is designated by the letters "D.C." The titles "D.C.," doctor of chiropractic, chiropractor, chiropractic physician are interpreted as the same.

§30-16-18. Scope of practice; chiropractic assistants; expert testimony.

(a) Any chiropractor who has complied with the provisions of this article may use any instrument or procedure, for the purpose of diagnosis and analysis of disease or abnormalities: Provided, That the person is trained to perform the procedures and use the instruments through a chiropractic college approved by the counsel on chiropractic education or its successor. Any chiropractor properly qualified under this article may engage in the use of physiotherapeutic devices, physiotherapeutic modalities, physical therapy and physical therapy techniques. Licensed chiropractors may also employ properly trained chiropractic assistants to perform duties under supervision that are generally conducted by chiropractic assistants which are not otherwise prohibited by the board. The board shall propose and promulgate rules in accordance with the provisions governing legislative rules, contained in article three, chapter twenty-nine-a of this code governing chiropractic assistants, including, but not limited to, minimum qualifications, scope of practice, and supervision requirements. A licensed chiropractor may not engage in conduct outside this scope and beyond his or her training and knowledge.

(b) A doctor of chiropractic duly licensed under this article is presumed to be competent to testify before the circuit courts of this state or in any other state administrative proceeding as an expert witness.

§30-16-19. Duty of chiropractor to observe health rules; reports of health officer and local registrar of vital statistics.

Doctors of chiropractic shall observe and are subject to all state and municipal rules in regard to the control of infectious diseases, and to any and all other matters pertaining to public health. They shall report to the public health officer in the manner required by law. It is the duty of each doctor of chiropractic in this state to report to the registrar of vital statistics of his or her magisterial district, within ten days of its occurrence, any death which may come under his or her supervision, with a certificate of the cause of death and correlative facts as may be at that time required by the division of health.

§30-16-20. Use of physiotherapeutic devices; electrodiagnostic devices; specialty practice.

(a) No chiropractor may use any physiotherapeutic devices or electrodiagnostic devices in practice until he or she has certified to the board that he or she has completed at least the minimum classroom hours required for certification in the use of these procedures in classes sponsored by or conducted by a chiropractic college approved by the council of chiropractic education or its successor.

(b) Electrodiagnostic devices include, but are not limited to, the following: Videofluoroscopy and diagnostic ultrasound, including needle and surface electromyography, nerve conduction velocity studies, somatosensory testing and neuromuscular junction testing. The board may designate other devices as electrodiagnostic devices covered by this section by rule.

(c) As contained in this section, the term "specialty" includes, but is not limited to, orthopedics, neurology, chiropractic sports physician, radiology, pediatrics, nutrition, rehabilitation, acupuncture, chiropractic internist, behavioral health, diagnostic imagining and physiotherapeutics. No chiropractor is permitted to practice in a specialty in the chiropractic field or hold himself or herself out as being a specialist in the chiropractic field until the licensee has successfully completed a certified program in that specialty at a chiropractic college approved by the council on chiropractic education or its successor and approved by the board. The program shall consist of a minimum number of hours to be determined by the board. Successful completion of the final certification exam is required.

§30-16-21. Chiropractic corporations.

(a) One or more individuals, each of whom is licensed to practice chiropractic within this state may organize and become a shareholder or shareholders of a chiropractic corporation. Individuals who may be practicing chiropractic 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 chiropractors to organize as a chiropractic corporation.

(b) A chiropractic corporation may render professional service only through officers, employees and agents who are themselves duly licensed to render chiropractic service within this state. The term "employee" or "agent" as used in this section, does not include secretaries, clerks, typists, paraprofessional personnel or other individuals who are not usually and ordinarily considered by custom and practice to be rendering chiropractic 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 chiropractic services and his or her client, nor does it modify the law as it relates to liability arising out of the professional service relationship. Except for permitting chiropractic corporations this section is not intended to modify any legal requirement or court rule relating to ethical standards of conduct required of persons providing chiropractic services.

(d) A chiropractic corporation may issue its capital stock only to persons who are duly licensed by the board.

(e) When not inconsistent with this section, the organization and procedures of chiropractic corporations shall conform to the requirements of article one, chapter thirty-one of this code.

§30-16-22. Offenses; penalties.

(a) Each of the following acts shall constitute a misdemeanor, punishable upon conviction by a fine of not less than $100 nor more than $500, or by imprisonment in the county jail for not less than thirty days nor more than one year, or both, in the discretion of the court, and each day any person shall so violate any provisions of this article shall constitute a separate and distinct offense:

(1) The obtaining of or attempt to obtain a license by the use of fraud, deceit or willful misrepresentation;

(2) The practice, or attempting to practice, as a chiropractor without a license granted under the provisions of this article, or practicing or attempting to practice while said license is suspended, or after said license has been revoked;

(3) The use of any title to induce belief that the user of said title is engaged in the practice of chiropractic, if the user of said title has not fully complied with the provisions of this article;

(4) The buying, selling or fraudulent procurement of any diploma of, or license to practice, chiropractic;

(5) The violation of any provision of this article regulating the practice of chiropractors.

(b) A person shall not engage in the practice of chiropractic or hold himself or herself out as qualified to practice chiropractic or use any title, word or abbreviation to indicate to or induce others to believe that he or she is licensed to chiropractic in this state unless he or she is actually licensed under the provisions of this article. Any person who violates the provisions of this subsection is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000, or imprisoned in the county jail not more than three months, or both fined and imprisoned.

§30-17-1. Unlawful acts.

It is unlawful for any person to practice or offer to practice environmental health science and public health sanitation in this state without being licensed, certified or permitted under the provisions of this article, or to advertise or use any title or description tending to convey the impression that the person is a registered sanitarian, sanitarian or sanitarian-in-training unless he or she has been duly authorized under the provisions of this article, and the license, certification or permit has not expired or been suspended or revoked.

§30-17-2. Applicable law.

The practice of environmental health science and public health sanitation, and the board are subject to the provisions of article one of this chapter, the provisions of this article and any rules promulgated hereunder.

§30-17-3. Definitions.

As used in this article, the following words and terms have the following meanings:

(a) "Board" means the State Board of Sanitarians.

(b) "Bureau" means the Bureau for Public Health.

(c) "Certificate holder" means a person holding a certification issued by the board.

(d) "Certificate" means a document issued to a sanitarian under the provisions of this article.

(e) "Environmental health science" means public health science that includes, but is not limited to, the following bodies of knowledge: air quality, food quality and protection, hazardous and toxic substances, consumer product safety, housing, institutional health and safety, community noise control, radiation protection, recreational facilities, solid and liquid waste management, vector control, drinking water quality, milk sanitation and rabies control.

(f) "License" means a document issued to a registered sanitarian under the provisions of this article.

(g) "Licensee" means a person holding a license issued by the board.

(h) "Permit" means a document issued to a sanitarian-in-training under the provisions of this article.

(i) "Permittee" means a person holding a permit issued by the board.

(j) "Practice of public health sanitation" means the consultation, instruction, investigation, inspection or evaluation by an employee of the bureau, or a municipal or county health department with the primary purpose of improving or conducting administration of enforcement of state laws and rules.

(k) "Registered sanitarian" means a person who is licensed by the board and is uniquely qualified by education, specialized training, experience and examination to assist in the enforcement of public health sanitation laws and environmental sanitation regulations, and to effectively plan, organize, manage, evaluate and execute one or more of the many diverse disciplines comprising the field of public health sanitation.

(l) "Sanitarian" means a person who is certified by the board and is uniquely qualified by education in the arts and sciences, specialized training and credible field experience to assist in the enforcement of public health sanitation laws and environmental sanitation regulations, and to effectively plan, organize, manage, evaluate and execute one or more of the many diverse disciplines comprising the field of public health sanitation.

(m) "Sanitarian-in-training" means a person who is permitted by the board and possesses the necessary educational qualifications for certificate as a sanitarian, but who has not completed the experience requirements in the fields of public health sanitation and environmental health science as required for certificate.

§30-17-4. State Board of Sanitarians.

(a) The Board of Registration for Sanitarians is continued and commencing July 1, 2010, shall be known as the State Board of Sanitarians. Any member of the board, except one registered sanitarian, in office on July 1, 2010, may continue to serve until his or her successor has been appointed and qualified.

(b) Prior to July 1, 2010, the Governor, by and with the advice and consent of the Senate, shall appoint one certified sanitarian to replace one registered sanitarian.

(c) Commencing July 1, 2010, the board shall consist of the following seven voting members with staggered terms:

(1) Four members who are registered sanitarians;

(2) One member who has a certificate as a sanitarian at the time of the appointment: Provided, That if the member becomes a registered sanitarian during his or her appointment term, then the person may not be reappointed as the certified sanitarian member, but may be reappointed as a registered sanitarian member; and

(3) Two citizen members who are not licensed, certified, or permitted under the provisions of this article, and who do not perform any services related to the practice of the professions regulated under the provisions of this article.

(d) Each member must be appointed by the Governor, by and with the advice and consent of the Senate, and must be a resident of this state during the appointment term.

(e) The term of each board member is five years.

(f) No member may serve more than two consecutive full terms and any member having served two full terms may not be appointed for one year after completion of his or her second full term. A member shall continue to serve until his or her successor has been appointed and qualified.

(g) Each licensed or certified member shall have been engaged in the practice of environmental health science or public health sanitation for at least five years immediately preceding the appointment.

(h) Each licensed or certified member shall maintain an active license or certificate with the board during his or her term.

(i) The Governor may remove any member from the board for neglect of duty, incompetency, or official misconduct.

(j) A licensed or certified member of the board immediately and automatically forfeits membership to the board if his or her license or certificate to practice is suspended or revoked.

(k) A member of the board immediately and automatically forfeits membership to the board if he or she is convicted of a felony under the laws of any jurisdiction or becomes a nonresident of this state.

(l) The board shall designate one of its members as chairperson who serves at the will of the board.

(m) Each member of the board is entitled to receive compensation and expense reimbursement in accordance with §30-1-11 of this code.

(n) A majority of the members of the board shall constitute a quorum.

(o) The board shall hold at least two annual meetings. Other meetings may be held at the call of the chairperson, or upon the written request of two members, at such time and place as designated in the call or request.

(p) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article IV of the Constitution of this state.

§30-17-5. Powers and duties of the board.

The board has all the powers and duties set forth in article one of this chapter and also the following powers and duties:

(1) Hold meetings, conduct hearings and administer examinations;

(2) Set the requirements for a license, permit and certificate;

(3) Establish procedures for submitting, approving and rejecting applications for a license, permit and certificate;

(4) Determine the qualifications of any applicant for a license, permit and certificate;

(5) Prepare, conduct, administer and grade written, oral or written and oral examinations for a license;

(6) Determine the passing grade for the examinations;

(7) Contract with third parties to administer the examinations required under the provisions of this article;

(8) Maintain records of the examinations the board or a third party administers, including the number of persons taking the examination and the pass and fail rate;

(9) Maintain an office, and hire, discharge, establish the job requirements and fix the compensation of employees and contracted employees necessary to enforce the provisions of this article;

(10) Define the fees charged under the provisions of this article;

(11) Issue, renew, deny, suspend, revoke or reinstate a license, permit and certificate;

(12) Investigate alleged violations of the provisions of this article, legislative rules, orders and final decisions of the board;

(13) Conduct disciplinary hearings of persons regulated by the board;

(14) Determine disciplinary action and issue orders;

(15) Institute appropriate legal action for the enforcement of the provisions of this article;

(16) Maintain an accurate registry of names and addresses of all persons regulated by the board;

(17) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;

(18) Establish the continuing education requirements for licensees, permittees and certificate holders;

(19) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article;

(20) Sue and be sued in its official name as an agency of this state;

(21) Confer with the Attorney General or his or her assistant in connection with legal matters and questions; and

(22) Take all other actions necessary and proper to effectuate the purposes of this article.

§30-17-6. Rulemaking.

(a) The board shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this article, including:

(1) Standards and requirements for a license, permit or certificate;

(2) Procedures for examinations and reexaminations;

(3) Requirements for third parties to prepare and/or administer examinations and reexaminations;

(4) Educational, experience and training requirements, and the passing grade on the examination;

(5) Standards for approval of courses;

(6) Procedures for the issuance and renewal of a license, permit or certificate;

(7) A fee schedule;

(8) The continuing education requirements;

(9) The procedures for denying, suspending, revoking, reinstating or limiting the practice of a licensee, permittee or certificate holder;

(10) Requirements for an inactive or revoked license, permit or certificate; and

(11) Any other rules necessary to effectuate the provisions of this article.

(b) All of the board's rules in effect on July 1, 2010, shall remain in effect until they are amended or repealed, and references to provisions of former enactments of this article are interpreted to mean provisions of this article.

(c) The board is authorized to promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code, to set fees for the issuance and renewal of licenses, certificates and permits for an eighteen month period commencing July 1, 2010, and ending December 31, 2011.

§30-17-7. Fees; special revenue account; administrative fines.

(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the State Treasury designated the "Sanitarians Operating Fund", which fund is continued. The fund shall be used by the board for the administration of this article. Except as may be provided in article one of this chapter, the board shall retain the amounts in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.

(b) Any amounts received as fines imposed, pursuant to this article, shall be deposited into the General Revenue Fund of the State Treasury.

§30-17-8. Qualifications for licensure as a registered sanitarian.

(a) To be eligible to be licensed as a registered sanitarian, the applicant must:

(1) Be of good moral character;

(2) Have a bachelor's or higher degree from an accredited college or university;

(3) Successfully complete a sanitarian's training course of a minimum of three hundred hours, as approved by the board;

(4) Have at least two years of experience in the field of public health sanitation and environmental health science; and

(5) Pass an examination, as required by the board.

(b) An applicant may substitute a successfully completed master's or higher degree in public health, environmental science, sanitary science, community hygiene or other science field, as approved by the board, for one of the required years of experience.

(c) A registration issued by the board prior to July 1, 2010, shall for all purposes be considered a license issued under this article: Provided, That a person holding a registration issued prior to July 1, 2010, must renew pursuant to the provisions of this article.

§30-17-9. Qualifications for certificate as a sanitarian.

(a) To be eligible to be certified as a sanitarian, the applicant must:

(1) Be of good moral character;

(2) Have a bachelor's or higher degree from an accredited college or university;

(3) Successfully complete a sanitarian's training course of a minimum of three hundred hours, as approved by the board; and

(4) Have at least two years of experience in the field of public health sanitation and environmental health science.

(b) An applicant may substitute a successfully completed master's or higher degree in public health, environmental science, sanitary science, community hygiene or other science field as approved by the board for one of the required years of experience.

(c) A person who is registered as a sanitarian-in-training by the board and on or before July 1, 2010, has two or more years of experience in the field of public health sanitation and environmental health science, as approved by the board, shall for all purposes be considered certified under this article: Provided, That such a person must renew pursuant to the provisions of this article.

§30-17-10. Qualifications for permit as a sanitarian-in-training.

(a) To be eligible to be permitted as a sanitarian-in-training, the applicant must:

(1) Be of good moral character;

(2) Have a bachelor's or higher degree from an accredited college or university; and

(3) Successfully complete a sanitarian's training course of a minimum of three hundred hours within twelve months of being hired as a sanitarian-in-training.

(b) A person may practice as a sanitarian-in-training for a period not to exceed three years.

(c) The board may waive the requirements of subdivision (3) of subsection (a) and subsection (b) of this section, for a person who experiences an undue hardship, as determined by the board.

§30-17-11. Persons exempted from licensure.

The activities and services of qualified members of other recognized professions practicing environmental health science consistent with the laws of this state, their training and any code of ethics of their professions so long as such person does not represent themselves as a registered sanitarian, sanitarian or sanitarian-in-training as defined by this article.

§30-17-12. License from another state.

The board may issue a license or a certificate to practice environmental health science or public health sanitation in this state, without requiring an examination, to an applicant from another jurisdiction who:

(1) Is of good moral character;

(2) Holds a valid sanitarian license or other authorization to practice environmental health science or public health sanitation in another jurisdiction and meets requirements which are substantially equivalent to the requirements set forth in this article;

(3) Is not currently being investigated by a disciplinary authority of this state or another jurisdiction, does not have charges pending against his or her license or other authorization to practice environmental health science or public health sanitation, and has never had a license or other authorization to practice environmental health science or public health sanitation revoked;

(4) Has not previously failed an examination for licensure in this state;

(5) Has paid all the applicable fees;

(6) Completes any additional training as determined by the board; and

(7) Completes such other action as required by the board.

§30-17-13. Renewal requirements.

(a) The board may issue, renew and charge fees for licenses, certificates and permits for an eighteen month period commencing July 1, 2010, and ending December 31, 2011.

(b) Commencing January 1, 2012, and annually or biennially thereafter, a person regulated by this article shall renew his or her license, permit or certificate by completing a form prescribed by the board, paying the applicable fees and submitting any other information required by the board.

(c) The board shall charge a fee for each renewal of a license, permit or certificate and may charge a late fee for any renewal not paid by the due date.

(d) The board shall require as a condition for the renewal of a license, permit or certificate that each person regulated by this article complete continuing education.

(e) The board may deny an application for renewal for any reason which would justify the denial of an original application for a license, permit or certificate.

§30-17-14. Display of license, permit or certificate.

(a) The board shall prescribe the form for a license, permit and certificate and may issue a duplicate upon payment of a fee.

(b) Any person, not employed by the bureau or a municipal or county health department, shall conspicuously display his or her license, permit or certificate at his or her principal place of practice.

(c) A person regulated by the board shall carry valid proof of licensure, permit or certificate on his or her person during the performance of his or her duties.

§30-17-15. Complaints; investigations; due process procedure; grounds for disciplinary action.

(a) The board may upon its own motion and shall upon the written complaint of any person cause an investigation to be made to determine whether grounds exist for disciplinary action under this article.

(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the complaint to the licensee, permittee or certificate holder.

(c) The board may cause an investigation to be made into the facts and circumstances giving rise to the complaint.

(d) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the licensee, permittee or certificate holder has violated this article.

(e) Upon a finding that probable cause exists that the licensee, permittee or certificate holder has violated this article, the board may enter into a consent decree or hold a hearing for the suspension or revocation of the license, certificate or permit or the imposition of sanctions against the licensee, permittee or certificate holder. The hearing shall be held in accordance with the provisions of this article.

(f) Any member of the board or the executive director of the board may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations against any person regulated by this article.

(g) Any member of the board or its executive director may sign a consent decree or other legal document on behalf of the board.

(h) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend or revoke the license, permit or certificate of, impose probationary conditions upon or take disciplinary action against, any licensee, permittee or certificate holder for any of the following reasons:

(1) Obtaining a license, permit or certificate by fraud, misrepresentation or concealment of material facts;

(2) Being convicted of a felony or other crime involving moral turpitude;

(3) Being guilty of unprofessional conduct which placed the public at risk;

(4) Violating this article or lawful order of the board that placed the public at risk;

(5) Having had a license or other authorization revoked or suspended, other disciplinary action taken, or an application for licensure or other authorization denied by the proper authorities of another jurisdiction, irrespective of intervening appeals and stays; or

(6) Engaging in any act which has endangered or is likely to endanger the health, welfare or safety of the public.

(i) For the purposes of subsection (h) of this section, disciplinary action may include:

(1) Reprimand;

(2) Probation;

(3) Administrative fine, not to exceed $1,000 per day per violation;

(4) Mandatory attendance at continuing education seminars or other training;

(5) Practicing under supervision or other restriction;

(6) Requiring the licensee, permittee or certificate holder to report to the board for periodic interviews for a specified period of time; or

(7) Other corrective action considered by the board to be necessary to protect the public, including advising other parties whose legitimate interests may be at risk.

§30-17-16. Procedures for hearing; right of appeal.

(a) Hearings are governed by the provisions of section eight, article one of this chapter.

(b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.

(c) If the hearing is conducted by an administrative law judge, at the conclusion of a hearing he or she shall prepare a proposed written order containing findings of fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the board so directs. The board may accept, reject or modify the decision of the administrative law judge.

(d) Any member or the executive director of the board has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.

(e) If, after a hearing, the board determines the licensee, permittee or certificate holder has violated this article, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.

§30-17-17. Judicial review; appeal to Supreme Court of Appeals.

Any licensee, permittee or certificate holder adversely affected by a decision of the board entered after a hearing may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance with article six, chapter twenty-nine-a of this code.

§30-17-18. Criminal proceedings; penalties.

(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a licensee, permittee or certificate holder has knowingly violated this article, the board may bring its information to the attention of an appropriate law-enforcement official who may cause criminal proceedings to be brought.

(b) If a court finds that a person violating this article, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000 or confined in jail not more than six months, or both fined and confined.

§30-17-19. Single act evidence of practice.

In any action brought or in any proceeding initiated under this article, evidence of the commission of a single act prohibited by this article is sufficient to justify a penalty, injunction, restraining order or conviction without evidence of a general course of conduct.

§30-18-1. Definitions.

For the purposes of this article, except where the context clearly requires otherwise, the following terms shall have the meanings ascribed to them:

(1) "Applicant" means a person who files a completed application as required by sections three and six of this article to be licensed to conduct a private investigation business or a security guard business. When a person other than a natural person is applying for a license, the applicant shall be the person whose qualifications are presented to meet the experience or education requirements of sections two or five of this article.

(2) "Private investigation business" means the business of doing an investigation or investigations, for hire, reward or any other type of remuneration, to obtain information about:

(A) A crime which is alleged to have occurred or is threatened to occur;

(B) The habits, activities, conduct, movements, location, associations, transactions, reputation or character of any person;

(C) The credibility of witnesses or other persons;

(D) The location or recovery of lost or stolen property;

(E) The causes or origins of any fire, accident or injury to any property, real or personal, or to identify or locate any person or persons responsible for any such fire, accident or injury;

(F) The truth or falsity of any statement or representation, whether written or oral, or of any type of depiction;

(G) Any matters which constitute evidence or which may lead to the discovery of evidence to be used before any judicial or quasijudicial tribunal, including, but not limited to, civil or criminal courts, administrative agencies, investigating committees, or boards of award or arbitration;

(H) The whereabouts of any missing or kidnapped person;

(I) The affiliation, connection or relationship of any person with any corporation or other business entity, union, organization, society or association, or with any official, member or representative thereof;

(J) Any person or persons seeking employment in the place of any employee or employees who have quit work by reason of any strike; or

(K) The conduct, honesty, efficiency, loyalty or activities of employees, agents, contractors and subcontractors.

(3) "Firm license" means the license held by a person whom the Secretary of State has authorized to operate a private detective investigative firm or security guard firm after such person has filed and completed an application pursuant to the application requirements contained in sections three or six and has satisfied the eligibility requirements contained in sections two or five.

(4) "Person" means a natural person, a group of persons or individuals acting individually or as a group, a corporation, company, partnership, association, society, firm, or any business organization or entity organized or existing under the laws of this or any other state or country;

(5) (A) "Private detective" or "private investigator" means a person who is licensed pursuant to the provisions of this article to conduct a private investigation business, as defined in subdivision (2) of this section, and who conducts such business individually and independently from any private detective or investigative firm;

(B) "Private detective" or "private investigator" does not include:

(i) Any individual while acting as an adjuster for an insurance company or companies;

(ii) Individuals employed exclusively and regularly by only one employer in connection with the affairs of such employer only;

(iii) An officer or employee of the United States, or any law-enforcement officer of this state or any political subdivision thereof, while such officer or employee is engaged in the performance of his official duties or while working for a private employer in his off-duty hours;

(iv) Attorneys or counselors-at-law or any employee or representative of such attorney or counselor;

(v) Any corporation duly authorized by this state to operate central burglar or fire alarm protection business; or

(vii) Any investigator of crime appointed by a prosecuting attorney of a county pursuant to the provisions of section two, article four, chapter seven of this code.

(6) "Private detective or investigative firm" means any private detective agency or business or any investigative agency or business that is operated by a licensed private detective or investigator and which employs one or more other persons who actually conduct the private investigation business as defined in subdivision (2) of this section.

(7) (A) "Security guard" means a person who is licensed pursuant to the provisions of this article to conduct a security guard business, as defined in subdivision (8) of this section, and who conducts such business individually and independently from a security guard firm.

(B) "Security guard" does not include a person who is employed exclusively and regularly by only one employer in connection with the affairs of such employer only, or a person who is otherwise hereinafter excluded from the requirements of this article;

(8) (A) "Security guard business" means the business of furnishing, for hire, reward or other remuneration, watchmen, guards, bodyguards, private patrolmen or other persons, to:

(i) Protect property, real or personal, or any person;

(ii) To prevent theft, unlawful taking, misappropriation or concealment of goods, wares or merchandise, money, bonds, stocks, notes or other valuable documents, papers and articles of value; or

(iii) To furnish for hire, guard dogs or armored motor vehicle security services, in connection with the protection of persons or property;

(B) "Security guard business" does not include any activities or duties for which it is necessary to be trained and certified as a law-enforcement officer in accordance with the provisions of article twenty-nine, chapter thirty of this code.

(9) "Security guard firm" means any security guard agency or business that is operated by a licensed security guard and which employs one or more other persons who actually conduct a security guard business as defined in subdivision (8) of this section.

§30-18-2. Eligibility requirements for license to conduct the private investigation business.

(a) In order to be eligible for any license to conduct the private investigation business, an applicant shall:

(1) Be at least 18 years of age;

(2) Be a citizen of the United States or an alien who is legally residing within the United States;

(3) Not have had any previous license to conduct a private investigation business or to conduct a security guard business revoked or any application for any such licenses or registrations denied by the appropriate governmental authority in this or any other state or territory;

(4) Not have been declared incompetent by reason of mental defect or disease by any court of competent jurisdiction unless a court has subsequently determined that the applicant’s competency has been restored;

(5) Not suffer from habitual drunkenness or from narcotics addiction or dependence;

(6) Be of good moral character;

(7) Have a minimum of one year of experience, education, or training in any one of the following areas, or some combination thereof:

(A) Course work that is relevant to the private investigation business at an accredited college or university;

(B) Employment as a member of any United States government investigative agency, employment as a member of a state or local law-enforcement agency, or service as a sheriff;

(C) Employment by a licensed private investigative or detective agency for the purpose of conducting the private investigation business;

(D) Service as a magistrate in this state; or

(E) Any other substantially equivalent training or experience; or

(F) Military service.

(8) Not have been convicted of a felony in this state or any other state or territory;

(9) Not have been convicted of any of the following:

(A) Illegally using, carrying, or possessing a pistol or other dangerous weapon;

(B) Making or possessing burglar’s instruments;

(C) Buying or receiving stolen property;

(D) Entering a building unlawfully;

(E) Aiding an inmate’s escape from prison;

(F) Possessing or distributing illicit drugs;

(G) Any misdemeanor involving moral turpitude or for which dishonesty of character is a necessary element; and

(10) Not have violated any provision of §30-18-8 of this code.

The provisions of this section shall not prevent the issuance of a license to any person who, subsequent to his or her conviction, shall have received an executive pardon therefor, removing this disability.

(b) Any person who qualifies for a private investigator’s license shall also be qualified to conduct security guard business upon notifying the Secretary of State in writing that the person will be conducting such business.

(c) No person may be employed as a licensed private investigator while serving as magistrate.

§30-18-3. Application requirements for a license to conduct the private investigation business.

(a) To be licensed to be a private detective, a private investigator or to operate a private detective or investigative firm, each applicant shall file an application with the Secretary of State in a manner or method authorized and in such form as the secretary may prescribe.

(b) On the application each applicant shall provide the following information: The applicant’s name, birth date, citizenship, physical description, military service, current residence, residences for the preceding seven years, qualifying education or experience, the location of each of his or her offices in this state, and any other information requested by the Secretary of State in order to comply with the requirements of this article.

(c) In the case of a corporation that is seeking a firm license, the application shall be signed by the president of such corporation and shall specify the name of the corporation, the date and place of its incorporation, the names and titles of all officers, the location of its principal place of business, and the name of the city, town or village, stating the street and number, and otherwise such apt description as will reasonably indicate the location. If the corporation has been incorporated in a state other than West Virginia, a certificate of good standing from the state of incorporation must accompany the application. This information must be provided in addition to that required to be provided by the applicant.

(d) The applicant shall provide:

(1) Information in the application about whether the applicant has ever been arrested for or convicted of any crime or wrongs, either done or threatened, against the government of the United States;

(2) Information about offenses against the laws of West Virginia or any state; and

(3) Any facts as may be required by the Secretary of State to show the good character, competency and integrity of the applicant.

To qualify for a firm license, the applicant shall provide such information for each person who will be authorized to conduct the private investigation business and for each officer, member, or partner of the firm.

(e) As part of the application, each applicant shall give the Secretary of State permission to review the records held by the West Virginia State Police for any convictions that may be on record for the applicant.

(f) For each applicant applying for a license, the application shall be accompanied by one recent full-face photograph.

(g) For each applicant, the application shall be accompanied by:

(1) Character references from at least five reputable citizens. Each reference must have known the applicant for at least five years preceding the application. No reference may be connected to the applicant by blood or marriage. All references must have been written for the purpose of the application for a license to conduct the private investigation business; and

(2) A nonrefundable application processing service charge of $50, which shall be payable to the Secretary of State to offset the cost of license review and criminal investigation background report from the West Virginia State Police, along with a license fee of $100 if the applicant is an individual, or $200 if the applicant is a firm. The license fee shall be deposited to the General Revenue Fund and shall be refunded only if the license is denied.

(h) All applicants for private detective or private investigator licenses or for private investigation firm licenses shall file in the office of Secretary of State a surety bond or sufficient proof of liability insurance as required by the Secretary of State.

(i) If a surety bond is obtained in lieu of liability insurance, such bond shall:

(1) Be in the sum of $5,000 and conditioned upon the faithful and honest conduct of such business by such applicant;

(2) Be written by a company recognized and approved by the Insurance Commissioner of West Virginia and approved by the Attorney General of West Virginia with respect to its form;

(3) Be in favor of the State of West Virginia for any person who is damaged by any violation of this article. The bond must also be in favor of any person damaged by such a violation.

(j) Any person claiming against the bond required by subsection (i) of this section for a violation of this article may maintain an action at law against any licensed individual or firm and against the surety. The surety shall be liable only for damages awarded under §30-18-12 of this code and not the punitive damages permitted under that section. The aggregate liability of the surety to all persons damaged by a person or firm licensed under this article may not exceed the amount of the bond.

§30-18-4. Requirements for employees conducting the private investigation business under a firm license.

(a) Any person who has a private detective firm or investigative firm license shall be responsible for supervising any employee or other individual who conducts the private investigation business under the authority of such person's firm license, regardless of whether such employee or other individual receives compensation for conducting such business. Such supervision shall include providing any education or training that is reasonably necessary to ensure compliance with the requirements of this article.

(b) Any employee or individual who conducts the private investigation business under the authority of a private detective or investigative firm license shall:

(1) Satisfy the requirements of section two of this article, except that such person need not satisfy the education and training requirements contained in subdivision (7) of section two; and

(2) Authorize the Secretary of State to review the records held by the division of public safety for any convictions that may be on record for such employee or individual.

(c) A holder of a private detective or investigative firm license is prohibited from authorizing any individual or employee to conduct a private investigation business if such individual does not comply with the requirements of this section.

(d) For every employee or individual who conducts the business of private investigation under the authority of a private detective or investigative firm license, the holder of such license must maintain a recent full-face photograph and one complete set of fingerprints on file at such firm's central business location in this state. Upon request, the holder of the firm license must release the photographs and fingerprints to the Secretary of State.

§30-18-5. Eligibility requirements to be licensed to conduct security guard business.

(a) In order to be eligible for any license to conduct security guard business, an applicant shall:

(1) Be at least 18 years of age;

(2) Be a citizen of the United States or an alien who is legally residing within the United States;

(3) Not have had any previous license to conduct security guard business or to conduct the private investigation business revoked or any application for any such licenses or registrations denied by the appropriate governmental authority in this or any other state or territory;

(4) Not have been declared incompetent by reason of mental defect or disease by any court of competent jurisdiction unless said court has subsequently determined that the applicant’s competency has been restored;

(5) Not suffer from habitual drunkenness or from narcotics addiction or dependence;

(6) Have had at least one year verified, full time employment conducting security guard business or conducting the private investigation business working for a licensed firm or have one year of substantially equivalent training or experience;

(7) Not have been convicted of a felony in this state or any other state or territory;

(8) Not have been convicted of any of the following:

(A) Illegally using, carrying, or possessing a pistol or other dangerous weapon;

(B) Making or possessing burglar’s instruments;

(C) Buying or receiving stolen property;

(D) Entering a building unlawfully;

(E) Aiding an inmate’s escape from prison;

(F) Possessing or distributing illicit drugs; and

(9) Not have violated any provision of §30-18-8 of this code.

The provisions of this section shall not prevent the issuance of a license to any person who, subsequent to his or her conviction, shall have received an executive pardon therefor, removing this disability.

§30-18-6. Application requirements for a license to conduct security guard business.

(a) To be licensed as a security guard or to operate a security guard firm, each applicant shall file a written application, under oath, and file an application with the Secretary of State in a manner or method authorized and in such form as the secretary may prescribe.

(b) On the application, each applicant shall provide the following information: The applicant’s name, birth date, citizenship, physical description, military service, current residence, residences for the preceding seven years, qualifying education or experience, the location of each of his or her offices in this state, and any other information requested by the Secretary of State in order to comply with the requirements of this article.

(c) In the case of a corporation that is seeking a firm license, the application shall be signed by the president of such corporation and shall specify the name of the corporation, the date and place of its incorporation, the names and titles of all officers, the location of its principal place of business, and the name of the city, town, or village, stating the street and number, and otherwise such apt description as will reasonably indicate the location. If the corporation has been incorporated in a state other than West Virginia, a certificate of good standing from the state of incorporation must accompany the application. This information shall be provided in addition to that required to be provided the applicant.

(d) The applicant shall provide:

(1) Information in the application about whether the applicant has ever been arrested for or convicted of any crime or wrongs, either done or threatened, against the government of the United States;

(2) Information about offenses against the laws of West Virginia or any state;

(3) Any facts as may be required by the Secretary of State to show the good character, competency, and integrity of the applicant; and

(4) To qualify for a firm license, the same information for each person who would be authorized to conduct security guard business under the applicant’s firm license and for each officer, member, or partner in the firm.

(e) As part of the application, each applicant shall give the Secretary of State permission to review the records held by the West Virginia State Police for any convictions that may be on record for the applicant.

(f) For each applicant for a license, the application shall be accompanied by one recent full-face photograph of the applicant.

(g) For each applicant, the application shall be accompanied by:

(1) Character references from at least five reputable citizens. Each reference must have known the applicant for at least five years preceding the application. No reference may be connected to the applicant by blood or marriage. All references must have been written for the purpose of the application for a license to conduct security guard business; and

(2) A nonrefundable application processing service charge of $50, which shall be payable to the Secretary of State to offset the cost of license review and criminal investigation background report from the West Virginia State Police, along with a license fee of $100 if the applicant is an individual, or $200 if the applicant is a firm. The license fee shall be deposited to the General Revenue Fund, and shall be refunded only if the license is denied.

(h) All applicants for security guard licenses or security guard firm licenses shall file in the office of the Secretary of State a surety bond or sufficient proof of liability insurance as required by the Secretary of State.

(i) If a surety bond is obtained in lieu of liability insurance, such bond shall:

(1) Be in the sum of $5,000 and conditioned upon the faithful and honest conduct of such business by such applicant;

(2) Be written by a company recognized and approved by the Insurance Commissioner of West Virginia and the Attorney General of West Virginia with respect to its form;

(3) Be in favor of the State of West Virginia for any person who is damaged by any violation of this article. The bond must also be in favor of any person damaged by such a violation.

(j) Any person claiming against the bond required by subsection (i) of this section for a violation of this article may maintain an action at law against any licensed individual or firm and against the surety. The surety shall be liable only for damages awarded under §30-18-12 of this code and not the punitive damages permitted under that section. The aggregate liability of the surety to all persons damaged by a person or firm licensed under this article may not exceed the amount of the bond.

§30-18-7. Requirements for employees conducting security guard business under a firm license.

(a) Any person who has a security guard firm license shall be responsible for supervising any employee or other individual who conducts security guard business under the authority of such person's firm license, regardless of whether such employee or other individual receives compensation for conducting such business. Such supervision shall include providing any education or training that is reasonably necessary to ensure compliance with the requirements of this article.

(b) Any employee or individual who conducts security guard business under the authority of a firm license shall:

(1) Satisfy the requirements of section five of this article, except that such person need not satisfy the prior employment requirements contained in subdivision (7) of section five; and

(2) Authorize the Secretary of State to review the records held by the department of public safety for any convictions that may be on record for such employee or individual.

(c) A holder of a security guard firm license is prohibited from authorizing any individual or employee to conduct security guard business if such individual does not comply with the requirements of this section.

(d) For every employee or individual who conducts security guard business under the authority of a security guard firm license, the holder of such license must maintain a recent full-face photograph and one complete set of fingerprints on file at such firm's central business location in this state. Upon request, the holder of the firm license must release the photographs and fingerprints to the Secretary of State.

§30-18-8. Prohibitions.

(a) No person shall engage in the private investigation business or security guard business without having first obtained from the Secretary of State a license to conduct such business.

(b) All licensed persons, including private detectives, private investigators, security guards, private detective or investigative firms and security guard firms, are prohibited from transferring their licenses to an unlicensed person, firm or agency. This prohibition includes contracting or subcontracting with an unlicensed person, firm or agency to conduct the private investigation business or security guard business.

(c) It is unlawful for any person subject to the provisions of this article to knowingly commit any of the following:

(1) Employ any individual to perform the duties of an employee who has not first complied with all provisions of this article and the adopted regulations;

(2) Falsely represent that a person is the holder of a valid license;

(3) Make a false report with respect to any matter with which he or she is employed;

(4) Divulge any information acquired from or for a client to persons other than the client or his or her authorized agent without express authorization to do so or unless required by law;

(5) Accept employment which includes obtaining information intended for illegal purposes;

(6) Authorize or permit another person to violate any provision of this article or any rule of the Secretary of State adopted for this article.

§30-18-9. Renewal of license.

A license granted under the provisions of this article shall be in effect for two years from the date the certificate of license is issued and may be renewed for a period of two years by the Secretary of State upon application, in such form as the secretary may prescribe, and upon payment of the fee and the filing of the surety bond or proof of liability insurance. At the time of applying for renewal of a license, the Secretary of State may require any person to provide additional information to reflect any changes in the original application or any previous renewal. Any fee charged by the Secretary of State for renewal of a license shall not exceed $50.

§30-18-10. Authority of Secretary of State.

(a) When the Secretary of State is satisfied as to the good character, competency, and integrity of an applicant, of all employees or individuals conducting the private investigation business or security guard services under a firm license and, if the applicant is a firm, of each member, officer or partner, he or she shall issue and deliver to the applicant a certificate of license. Each license issued shall be for a period of two years and is revocable at all times for cause shown pursuant to subsection (b) of this section or any rules promulgated pursuant thereto.

(b) The Secretary of State may propose for promulgation in accordance with the provisions of chapter 29A of this code legislative rules necessary for the administration and enforcement of this article and for the issuance, suspension, and revocation of licenses issued under the provisions of this article. The Secretary of State shall afford any applicant an opportunity to be heard in person or by counsel when a determination is made to deny, revoke, or suspend an applicant’s license or application for license, including a renewal of a license. The applicant has 15 days from the date of receiving written notice of the Secretary of State’s adverse determination to request a hearing on the matter of denial, suspension, or revocation. The action of the Secretary of State in granting, renewing, or in refusing to grant or to renew, a license is subject to review by the circuit court of Kanawha County or other court of competent jurisdiction.

(c) At any hearing before the Secretary of State to challenge an adverse determination by the Secretary of State on the matter of a denial, suspension, or revocation of a license, if the adverse determination is based upon a conviction for a crime which would bar licensure under the provisions of this article, the hearing shall be an identity hearing only and the sole issue which may be contested is whether the person whose application is denied or whose license is suspended or revoked is the same person convicted of the crime.

(d) The Secretary of State shall require each applicant to submit to a state and national criminal history record check, as set forth in this subsection:

(1) The criminal history record check shall be based on fingerprints submitted to the West Virginia State Police or its assigned agent for forwarding to the Federal Bureau of Investigation.

(2) The applicant shall meet all requirements necessary to accomplish the state and national criminal history record check, including:

(A) Submitting fingerprints for the purposes set forth in this section, if required by the Secretary of State, West Virginia State Police, or the Federal Bureau of Investigation; and

(B) Authorizing the Secretary of State, the West Virginia State Police, and the Federal Bureau of Investigation to use all records submitted and produced for the purpose of screening the applicant for a license.

(3) The results of the state and national criminal history record check may not be released to or by a private entity except:

(A) To the individual who is the subject of the criminal history record check;

(B) With the written authorization of the individual who is the subject of the criminal history record check; or

(C) Pursuant to a court order.

(4) The criminal history record check and related records are not public records for the purposes of chapter 29B of this code.

(5) The applicant shall ensure that the criminal history record check is completed as soon as possible after the date of the original application for registration.

(6) The applicant shall pay the actual costs of the fingerprinting and criminal history record check.

§30-18-11. Penalties.

(a) Any person, licensed or unlicensed, who violates any of the provisions of this article is guilty of a misdemeanor and, upon conviction, shall be fined not less than $100 nor more than $5,000 or be confined in jail for not more than one year, or both.

(b) In the case of a violation of subsection (a) of section eight, a fine is assessed by the court for each day that an individual conducted the private investigation business or security guard business. In the case of a firm license, the fine is based on each day that the private investigative or security services were provided multiplied by the number of unauthorized persons providing those services.

§30-18-12. Action for damages.

Any individual who is injured by a violation of this article may bring an action for recovery of damages, including punitive damages plus reasonable attorney's fees and court costs.

§30-18-13. Disposition of fees.

All fees collected hereunder by the Secretary of State shall be paid to the treasurer of the state and deposited in the General Revenue Fund.

§30-19-1. Use of descriptive title restricted.

(a) No person may use in connection with his or her name or otherwise assume, use or advertise any title or description tending to convey the impression that he or she is a registered forester or registered forestry technician unless he or she is certified in accordance with this article.

(b) Nothing contained in this article shall be construed as preventing any person, firm, partnership or corporation from practicing forestry, managing woodlands or forests, removing any products or planting trees on any land, in any manner desired.

§30-19-2. Applicable law.

The practice of forestry and the state Board of Registration of Foresters are subject to article one of this chapter, this article, and any rules promulgated hereunder.

§30-19-3. Definitions.

As used in this article, the following words and terms have the following meanings:

(a) "Board" means the state Board of Registration of Foresters.

(b) "Certificate" means a certificate issued to practice as a registered forester or registered forestry technician.

(c) "Certification" means a certificate issued under the provisions of this article.

(d) "Certified" means a person holding a certification issued under the provisions of this article.

(e) "Forester" means a person who has acquired specialized forestry training by reason of his or her knowledge of the natural sciences, mathematics, silviculture, forest protection, forest management, forest economics and forest utilization, acquired by professional forestry education and practical experience.

(f) "Forester-in-training" or "Forestry technician-in- training" means a person who possesses the necessary educational qualifications as prescribed in this article for certification, but who has not completed the experience requirements in the field of forestry as required for certification.

(g) "Forestry" means the professional practice embracing the science, business, and the art of creating, conserving and managing forests and forestlands for the sustained use and enjoyment of their resources, material or other forest produce.

(h) "Practice of forestry" means professional forestry services, including the consultation, investigation, evaluation, planning or responsible supervision of any forestry activities when such professional service requires the application of forestry principles and techniques.

(i) "Permit" means a document issued as evidence of qualification to practice as a forester-in-training or forestry technician-in-training under this article.

(j) "Permitee" means a person holding a permit issued under the provisions of this article.

(k) "Registered Forester" means a forester certified under this article.

(l) "Registered Forestry Technician" means a forestry technician certified under this article.

§30-19-4. State Board of Registration of Foresters.

(a) The State Board of Registration of Foresters is continued. The members of the board in office on July 1, 2009, shall, unless sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and qualified.

(b) To be effective on July 1, 2009, the Governor shall appoint, by and with the advise and consent of the Senate, a registered forestry technician to replace the board member whose term ends on June 30, 2009.

(c) Commencing July 1, 2009, the board shall consist of the following five members:

(1) Four registered foresters; and

(2) One registered forestry technician.

(d) Each member shall be appointed by the Governor, by and with the consent of the Senate, from five nominees recommended by the West Virginia Division of the Society of American Foresters. The term is for five years.

(e) A member may not serve more than two consecutive full terms. A member having served two consecutive full terms may not be appointed for one year after completion of his or her second full term. A member may continue to serve until a successor has been appointed and qualified.

(f) Each member of the board shall be a resident of West Virginia during the appointment term.

(g) Each member must have been certified in this state for a period of not less than three years prior to his or her appointment and must have engaged in the practice of forestry for at least ten years.

(h) Each member shall maintain an active certification with the board.

(i) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.

(j) A member of the board immediately and automatically forfeits membership to the board if his or her certification has been suspended or revoked, is convicted of a felony under the laws of any jurisdiction, or becomes a nonresident of this state.

(k) The board shall elect annually one of its members as chairperson and one member as secretary who shall serve at the will and pleasure of the board.

(l) Each member of the board is entitled to compensation and expense reimbursement in accordance with article one of this chapter.

(m) A majority of the members serving on the board constitutes a quorum.

(n) The board shall hold at least two meetings annually. Other meetings shall be held at the call of the chairperson or upon the written request of two members, at such time and place as designated in the call or request.

(o) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state.

§30-19-5. Powers and duties of the board.

(a) The board has all the powers and duties set forth in this article, by rule, in article one of this chapter and elsewhere in law.

(b) The board shall:

(1) Hold meetings, conduct hearings and administer examinations;

(2) Establish requirements for a certification or permit;

(3) Establish procedures for submitting, approving and rejecting applications for a certification or permit;

(4) Determine the qualifications of any applicant for a certification or permit;

(5) Prepare, conduct, administer and grade written, oral or written and oral examinations for a certificate;

(6) Determine the passing grade for the examinations;

(7) Maintain records of the examinations the board or a third party administers, including the number of persons taking the examination and the pass and fail rate;

(8) Maintain an office, and hire, discharge, establish the job requirements and fix the compensation of employees and contracted employees necessary to enforce this article;

(9) Investigate alleged violations of this article, legislative rules, orders and final decisions of the board;

(10) Conduct disciplinary hearings of persons regulated by the board;

(11) Determine disciplinary action and issue orders;

(12) Institute appropriate legal action for the enforcement of this article;

(13) Maintain an accurate registry of names and addresses of all persons regulated by the board;

(14) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;

(15) Establish, by legislative rule, the continuing education requirements for certificate holders and permittees; and

(16) Propose rules in accordance with article three, chapter twenty-nine-a of this code to implement this article.

(c) The board may:

(1) Contract with third parties to administer the examinations required under this article;

(2) Define, by legislative rule, the fees charged under this article;

(3) Issue, renew, deny, suspend, revoke or reinstate a certification or permit;

(4) Sue and be sued in its official name as an agency of this state;

(5) Confer with the Attorney General or his or her assistant in connection with legal matters and questions; and

(6) Take all other actions proper to effectuate the purposes of this article.

§30-19-6. Rulemaking.

(a) The board shall propose rules for legislative approval, in accordance with article three, chapter twenty-nine-a of this code, to implement this article, including:

(1) Standards and requirements for a certification and permit;

(2) Procedures for examinations and reexaminations;

(3) Requirements for third parties to prepare and/or administer examinations and reexaminations;

(4) Educational and experience requirements, and the passing grade on the examination;

(5) Standards for ethical conduct;

(6) Procedures for the issuance and renewal of a certification and permit;

(7) A fee schedule;

(8) Continuing education requirements for a certificate holder and permittee;

(9) Procedures for denying, suspending, revoking, reinstating or limiting the practice of a certificate holder or permittee;

(10) Requirements for inactive or revoked certificate and permit; and

(11) Any other rules necessary to effectuate the provisions of this article.

(b) All of the board's rules in effect on the effective date of this article shall remain in effect until amended or repealed, and references to former enactments of this act are interpreted to mean this article.

§30-19-7. Fees; special revenue account; administrative fines.

(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the state Treasury designated the "Board of Foresters Fund", which fund is continued. The fund shall be used by the board for the administration of this article. Except as provided in article one of this chapter, the board shall retain the amounts in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.

(b) Any amounts received as administrative fines imposed pursuant to this article shall be deposited into the General Revenue Fund of the state Treasury.

§30-19-8. General requirements to be certified as a registered forester.

(a) To be eligible to be certified as a registered forester, the applicant must:

(1) Be of good moral character;

(2) Have a high school diploma or its equivalent;

(3) Have obtained either:

(A) Completion of a four-year degree program or masters degree program in forest management, accredited by the Society of American Foresters, or other accrediting body as determined by the board, and have two years related experience in the field of forestry; or

(B) Completion of a two-year technical forestry program in a program accredited or recognized by the Society of American Foresters, completion of a bachelor's degree in a field used in the practice of forestry as approved by the board and four years related experience in the field of forestry;

(4) Successfully pass an examination approved by the board.

(b) Those persons licensed by the board as a forester as of the effective date of this section are not required to take the examination.

§30-19-9. General requirements to be registered forestry technician.

To be eligible to be certified as a registered forestry technician, the applicant must:

(1) Be of good moral character;

(2) Have a high school diploma or its equivalent;

(3) Graduate from a two-year technical forestry program accredited or recognized by the Society of American Foresters;

(4) Complete four years of related experience in the field of forestry.

§30-19-10. Qualifications for permit as a forester-in-training or a forestry technician-in-training.

(a) The board may issue a permit to practice as a forester-in-training or a forestry technician-in-training to an applicant who meets all the requirements for certification, except the experience requirements of paragraph (A) or (B), subdivision three, subsection (a), section eight or subdivision four, section nine.

(b) A permit to practice as a forester-in-training or forestry technician-in-training may be renewed annually for a period not to exceed five years. The board may extend the five year limitation if the board finds the applicant experienced an undue hardship which prevented the attainment of the required experience.

§30-19-11. License from another state.

The board may issue a certification to a person as a registered forester in this state, without requiring an examination, to an applicant from another jurisdiction who:

(1) Is not a resident of this state;

(2) Is of good moral character;

(3) Holds a valid forestry license or other authorization to practice forestry in another jurisdiction which meets requirements that are substantially equivalent to the certification requirements set forth in this article;

(4) Is not currently being investigated by a disciplinary authority of this state or another jurisdiction, does not have charges pending against his or her authorization, and has never had his or her authorization revoked;

(5) Has not previously failed an examination for certification in this state;

(6) Has paid all the applicable fees; and

(7) Has completed such other action as required by the board.

§30-19-12. Renewal requirements.

(a) All persons regulated under the provisions of this article shall annually before January 1, renew his or her certification or permit by completing a form prescribed by the board and submit any other information required by the board.

(b) At least thirty days prior to July 1 of each year, the board shall mail to every person regulated under the provisions of this article an application for renewal.

(c) The board shall charge a fee for each renewal of a certification or permit and may charge a late fee for any renewal not paid in a timely manner.

(d) The board shall require as a condition for the renewal of a certification or permit that each person regulated under the provisions of this article complete continuing education.

(e) The board may deny an application for renewal for any reason which would justify the denial of an original application for a certification or permit.

§30-19-13. Complaints; investigations; due process procedure; grounds for disciplinary action.

(a) The board may upon its own motion based on credible information, and shall upon the written complaint of any person, cause an investigation to be made to determine whether grounds exist for disciplinary action under this article or the legislative rules of the board.

(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the complaint to the certificate holder or permittee.

(c) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the certificate holder or permittee has violated subsection (g) of this section or rules promulgated pursuant to this article.

(d) Upon a finding that probable cause exists that the certificate holder or permittee has violated subsection (g) of this section or rules promulgated pursuant to this article, the board may enter into a consent decree or hold a hearing for the suspension or revocation of the certification or permit or the imposition of sanctions against the certificate holder or permittee. Any hearing shall be held in accordance with the provisions of this article.

(e) Any member of the board or the executive director of the board may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations against any person regulated by the article.

(f) Any member of the board or its executive director may sign a consent decree or other legal document on behalf of the board.

(g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend or revoke the certification or permit of, impose probationary conditions upon or take disciplinary action against, any certificate holder or permittee for any of the following reasons once a violation has been proven by a preponderance of the evidence:

(1) Obtaining a certification or permit by fraud, misrepresentation or concealment of material facts;

(2) Being convicted of a felony or other crime involving moral turpitude;

(3) Being guilty of unprofessional conduct as defined by legislative rule of the board;

(4) Violating this article or lawful order or rule of the board;

(5) Having had a certificate or permit revoked or suspended, other disciplinary action taken, or an application for certification or permit or other authorization refused, revoked or suspended by the proper authorities of another jurisdiction; or

(6) Engaging in any act which has endangered or is likely to endanger the health, welfare or safety of the public.

(h) For the purposes of subsection (g) of this section, disciplinary action may include:

(1) Reprimand;

(2) Probation;

(3) Administrative fine, not to exceed $1,000 per day per violation;

(4) Mandatory attendance at continuing education seminars or other training;

(5) Practicing under supervision or other restriction;

(6) Requiring the certificate holder or permitee to report to the board for periodic interviews for a specified period of time; or

(7) Other corrective action considered by the board to be necessary to protect the public, including advising other parties whose legitimate interests may be at risk.

§30-19-14. Procedures for hearing; right of appeal.

(a) Hearings shall be governed by section eight, article one of this chapter.

(b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.

(c) If the hearing is conducted by an administrative law judge, at the conclusion of a hearing he or she shall prepare a proposed written order containing findings of fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the board so directs. The board may accept, reject or modify the decision of the administrative law judge.

(d) Any member or the executive director of the board has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.

(e) If, after a hearing, the board determines the certificate holder or permittee has violated this article or the board's rules, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.

§30-19-15. Judicial review; appeal to Supreme Court of Appeals.

Any certificate holder or permittee adversely affected by a decision of the board entered after a hearing may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance with article six, chapter twenty-nine-a of this code.

§30-19-16. Criminal proceedings; penalties.

(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a certificate holder or permitee has committed a criminal offense under this article, the board may bring the information to the attention of an appropriate law-enforcement official.

(b) Effective July 15, 2009, a person violating a provision of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000 or confined in jail not more than six months, or both fined and confined.

§30-19-17. Single act evidence of practice.

In any action brought or in any proceeding initiated under this article, evidence of the commission of a single act prohibited by this article is sufficient to justify a penalty, injunction, restraining order or conviction without evidence of a general course of conduct.

§30-20-1. Unlawful acts.

(a) It is unlawful for any person to practice or offer to practice physical therapy in this state without a license or permit issued under the provisions of this article, or advertise or use any title or description tending to convey the impression that they are a physical therapist or a physical therapist assistant unless the person has been duly licensed or permitted under the provisions of this article, and the license or permit has not expired, been suspended or revoked.

(b) A business entity may not render any service or engage in any activity which, if rendered or engaged in by an individual, would constitute the practice of physical therapy, except through a licensee or permittee.

(c) A person who is not licensed under this article as a physical therapist may not characterize himself or herself as a "physical therapist", "physiotherapist", or "doctor of physical therapy", nor may a person use the designation "PT", "DPT", "LPT", "CPT", or "RPT".

(d) A person who is not licensed under this article as a physical therapist assistant may not characterize himself or herself as a "physical therapist assistant", nor may a person use the designation "PTA".

§30-20-2. Applicable law.

The practices licensed under the provisions of this article and the Board of Physical Therapy are subject to article one of this chapter, the provisions of this article, and any rules promulgated hereunder.

§30-20-3. Definitions.

As used in this article:

(1) "Applicant" means any person making application for an original or renewal license or a temporary permit under the provisions of this article.

(2) "Board" means the West Virginia Board of Physical Therapy.

(3) "Business entity" means any firm, partnership, association, company, corporation, limited partnership, limited liability company or other entity providing physical therapy services.

(4) "Consultation" means a physical therapist renders an opinion or advice to another physical therapist or health care provider through telecommunications.

(5) "Direct supervision" means the actual physical presence of the physical therapist in the immediate treatment area where the treatment is being rendered.

(6) "General supervision" means the physical therapist must be available at least by telecommunications.

(7) "License" means a physical therapist license or license to act as a physical therapist assistant issued under the provisions of this article.

(8) "Licensee" means a person holding a license under the provisions of this article.

(9) "On-site supervision" means the supervising physical therapist is continuously on-site and present in the building where services are provided, is immediately available to the person being supervised, and maintains continued involvement in appropriate aspects of each treatment session.

(10) "Permit" or "temporary permit" means a temporary permit issued under the provisions of this article.

(11) "Permittee" means any person holding a temporary permit issued pursuant to the provisions of this article.

(12) "Physical therapy aide" means a person trained under the direction of a physical therapist who performs designated and routine tasks related to physical therapy services under the direction supervision of a physical therapist.

(13) "Physical therapist" means a person engaging in the practice of physical therapy who holds a license or permit issued under the provisions of this article.

(14) "Physical therapist assistant" means a person holding a license or permit issued under the provisions of this article who assists in the practice of physical therapy by performing patient related activities delegated to him or her by a physical therapist and performs under the supervision of a physical therapist and which patient related activities commensurate with his or her education and training, including physical therapy procedures, but not the performance of evaluative procedures or determination and modification of the patient plan of care.

(15) "Practice of physical therapy" or "physiotherapy" means the care and services as described in section nine of this article.

(16) "Telecommunication" means audio, video or data communication.

§30-20-4. West Virginia Board of Physical Therapy.

(a) The West Virginia Board of Physical Therapy is continued. The members of the board in office on July 1, 2010, shall, unless sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and qualified.

(b) To be effective July 1, 2010, the Governor shall appoint, by and with the advice and consent of the Senate:

(1) One person who is a physical therapist assistant for a term of five years; and

(2) One citizen member, who is not licensed under the provisions of this article and who does not perform any services related to the practice of the professions regulated under the provisions of this article or have a financial interest in any health care profession, for a term of three years.

(c) Commencing July 1, 2010, the board shall consist of the following seven members:

(1) Five physical therapists;

(2) One physical therapist assistant; and

(3) One citizen member.

(d) After the initial appointment term, the term shall be for five years. All appointments to the board shall be made by the Governor by and with the advice and consent of the Senate.

(e) Each licensed member of the board, at the time of his or her appointment, must have held a license in this state for a period of not less than five years immediately preceding the appointment.

(f) Each member of the board must be a resident of this state during the appointment term.

(g) A member may not serve more than two consecutive full terms. A member may continue to serve until a successor has been appointed and has qualified.

(h) A vacancy on the board shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant and the appointment shall be made within sixty days of the vacancy.

(i) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.

(j) A licensed member of the board immediately and automatically forfeits membership to the board if his or her license to practice is suspended or revoked.

(k) Any member of the board immediately and automatically forfeits membership to the board if he or she is convicted of a felony under the laws of any jurisdiction or becomes a nonresident of this state.

(l) The board shall elect annually one of its members as chairperson who serves at the will of the board.

(m) Each member of the board is entitled to compensation and expense reimbursement in accordance with article one of this chapter.

(n) A majority of the members of the board constitutes a quorum.

(o) The board shall hold at least two annual meetings. Other meetings may be held at the call of the chairperson or upon the written request of two members, at the time and place as designated in the call or request.

(p) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state.

§30-20-5. Powers and duties of the board.

(a) The board has all the powers and duties set forth in this article, by rule, in article one of this chapter and elsewhere in law.

(b) The board shall:

(1) Hold meetings, conduct hearings and administer examinations;

(2) Establish requirements for licenses and permits;

(3) Establish procedures for submitting, approving and rejecting applications for licenses and permits;

(4) Determine the qualifications of any applicant for licenses and permits;

(5) Prepare, conduct, administer and grade examinations for licenses;

(6) Determine the passing grade for the examinations;

(7) Maintain records of the examinations the board or a third party administers, including the number of persons taking the examinations and the pass and fail rate;

(8) Hire, discharge, establish the job requirements and fix the compensation of the executive secretary;

(9) Maintain an office, and hire, discharge, establish the job requirements and fix the compensation of employees, investigators and contracted employees necessary to enforce the provisions of this article;

(10) Investigate alleged violations of the provisions of this article, legislative rules, orders and final decisions of the board;

(11) Conduct disciplinary hearings of persons regulated by the board;

(12) Determine disciplinary action and issue orders;

(13) Institute appropriate legal action for the enforcement of the provisions of this article;

(14) Maintain an accurate registry of names and addresses of all persons regulated by the board;

(15) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;

(16) Establish the continuing education requirements for licensees;

(17) Issue, renew, combine, deny, suspend, restrict, revoke or reinstate licenses and permits;

(18) Establish a fee schedule;

(19) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article; and

(20) Take all other actions necessary and proper to effectuate the purposes of this article.

(c) The board may:

(1) Contract with third parties to administer examinations required under the provisions of this article;

(2) Sue and be sued in its official name as an agency of this state; and

(3) Confer with the Attorney General or his or her assistant in connection with legal matters and questions.

§30-20-6. Rulemaking.

(a) The board shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this article, including:

(1) Standards and requirements for licenses and permits;

(2) Procedures for examinations and reexaminations;

(3) Requirements for third parties to prepare or administer, or both, examinations and reexaminations;

(4) Educational and experience requirements;

(5) The passing grade on the examinations;

(6) Standards for approval of courses and curriculum;

(7) Procedures for the issuance and renewal of licenses and permits;

(8) A fee schedule;

(9) The scope of practice and supervision of physical therapist assistants;

(10) Responsibilities of a physical therapist and physical therapist assistant concerning the practice and supervision of physical therapy aides;

(11) Continuing education requirements for licensees;

(12) Establishing a maximum ratio of physical therapist assistants, or physical therapy aides involved in the practice of physical therapy, or any combinations that can be supervised by a physical therapist at any one time;

(13) Exceptions to the ratio of physical therapist assistants a physical therapist may supervise including emergencies, safety and temporary situations;

(14) Permitting a physical therapist assistant to directly supervise a physical therapy aide in an emergency situation;

(15) The procedures for denying, suspending, restricting, revoking, reinstating or limiting the practice of licensees and permittees;

(16) Adopt a standard for ethics;

(17) Requirements for inactive or revoked licenses or permits; and

(18) Any other rules necessary to effectuate the provisions of this article.

(b) The board shall promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code, to establish a maximum ratio of physical therapist assistants, or physical therapy aides involved in the practice of physical therapy, or any combinations that can be supervised by a physical therapist at any one time.

(c) All of the board's rules in effect on July 1, 2010, shall remain in effect until they are amended or repealed and references to provisions of former enactments of this article are interpreted to mean provisions of this article.

§30-20-7. Fees; special revenue account; administrative fines.

(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the State Treasury designated the "West Virginia Board of Physical Therapy Fund", which is continued. The fund is used by the board for the administration of this article. Except as may be provided in article one of this chapter, the board retains the amount in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.

(b) Any amounts received as fines pursuant to this article shall be deposited into the General Revenue Fund of the State Treasury.

§30-20-8. License to practice physical therapy.

(a) To be eligible for a license to engage in the practice of physical therapy, the applicant must:

(1) Submit an application to the board;

(2) Be at least eighteen years of age;

(3) Be of good moral character;

(4) Have graduated from an accredited school of physical therapy approved by the Commission on Accreditation in Physical Therapy Education or a successor organization;

(5) Pass a national examination as approved by the board;

(6) Not be an alcohol or drug abuser, as these terms are defined in section eleven, article one-a, chapter twenty-seven of this code: Provided, That an applicant in an active recovery process, which may, in the discretion of the board, be evidenced by participation in a twelve-step program or other similar group or process, may be considered;

(7) Not have been convicted of a felony in any jurisdiction within ten years preceding the date of application for license which conviction remains unreversed;

(8) Not have been convicted of a misdemeanor or felony in any jurisdiction if the offense for which he or she was convicted related to the practice of physical therapy, which conviction remains unreversed; and

(9) Has fulfilled any other requirement specified by the board.

(b) A physical therapist shall use the letters "PT" immediately following his or her name to designate licensure under this article.

(c) A license to practice physical therapy issued by the board prior to July 1, 2010, is considered a license issued under this article: Provided, That a person holding a license issued prior to July 1, 2010, must renew the license pursuant to the provisions of this article.

§30-20-8a. West Virginia Board of Physical Therapy criminal history record checks.

(a) The West Virginia Board of Physical Therapy is authorized to require state and national criminal history record checks for the purpose of issuing licenses. The West Virginia Board of Physical Therapy shall require an applicant, including physical therapists and physical therapy assistants, as a condition of eligibility for initial license to submit to a state and national criminal history record check as set forth in this section.

(b) The applicant shall meet all requirements necessary to accomplish the state and national criminal history record check, including:

(1) Submitting fingerprints for the purposes set forth in this subsection; and

(2) Authorizing the board, the West Virginia State Police, and the Federal Bureau of Investigation to use all records submitted and produced for the purpose of screening the applicant for a license.

(c) The results of the state and national criminal history record check may not be released to or by a private entity except:

(1) To the individual who is the subject of the criminal history record check;

(2) With the written authorization of the individual who is the subject of the criminal history record check; or

(3) Pursuant to a court order.

(d) The criminal history record check and related records are not public records for the purposes of §29B-1-1 et seq. of this code.

(e) The applicant shall ensure that the criminal history record check is completed as soon as possible after the date of the original application for registration.

(f) The applicant shall pay the actual costs of the fingerprinting and criminal history record check.

(g) The board may not disqualify an applicant for initial licensure because of a prior criminal conviction that has not been reversed unless that conviction is for a crime that bears a rational nexus to the occupation requiring licensure.   

(h) The board may not use crimes involving moral turpitude in making licensure determinations.

(i) If an applicant is disqualified for licensure because of a criminal conviction that has not been reversed, the board shall afford the applicant the opportunity to reapply for licensure after the expiration of five years from the date of conviction or date of release from the penalty that was imposed, whichever is later, if the individual has not been convicted of any other crime during that period of time: Provided, That convictions for violent or sexual offenses or offenses shall subject an individual to a longer period of disqualification, to be determined by the board.

(j) An individual with a criminal record who has not previously applied for licensure, certification, or registration may petition the board at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license or other authorization to practice. This petition shall include sufficient details about the individual’s criminal record to enable the board to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction. The board shall inform the individual of his or her standing within 60 days of receiving the petition from the applicant. The board may charge a fee established by rule to recoup its costs for each petition.

(k) The board shall propose rules or amendments to existing rules for legislative approval to comply with the provisions of this section. These rules or amendments to rules shall be proposed pursuant to the provisions of §29A-3-1 et seq. of this code within the applicable time limit to be considered by the Legislature during its regular session in the year 2020.

§30-20-9. Scope of practice of a physical therapist.

A physical therapist may:

(1) Examine, evaluate and test patients or clients with mechanical, physiological and developmental impairments, functional limitations, and disabilities or other health and movement related conditions in order to determine a diagnosis, prognosis and plan of treatment intervention, and to assess the ongoing effects of intervention: Provided, That electromyography examination and electrodiagnostic studies other than the determination of chronaxia and strength duration curves shall not be performed except under the supervision of a physician electromyographer and electrodiagnostician;

(2) Alleviate impairments, functional limitations and disabilities by designing, implementing and modifying treatment interventions that may include, but are not limited to: therapeutic exercise; functional training in self-care in relation to motor control function; mobility; in home, community or work integration or reintegration; manual therapy techniques including mobilization of the joints; therapeutic massage; fabrication of assistive, adaptive, orthothic, prosthetic, protective and supportive devices and equipment; airway clearance techniques; integumentary protection and repair techniques; patient-related instruction; mechanical and electrotherapeutic modalities; and physical agent or modalities including, but not limited to, heat, cold, light, air, water and sound;

(3) Reduce the risk of injury, impairment, functional limitation and disability, including the promotion and maintenance of fitness, health and wellness in populations of all ages; and

(4) Engage in administration, consultation and research.

§30-20-10. License to act as a physical therapist assistant.

(a) To be eligible for a license to act as a physical therapist assistant, the applicant must:

(1) Submit an application to the board;

(2) Be at least eighteen years of age;

(3) Be of good moral character;

(4) Have graduated from a two-year college level education program for physical therapist assistants which meets the standards established by the Commission on Accreditation in Physical Therapy Education and the board;

(5) Have passed the examination approved by the board for a license to act as a physical therapist assistant;

(6) Not be an alcohol or drug abuser, as these terms are defined in section eleven, article one-a, chapter twenty-seven of this code: Provided, That an applicant in an active recovery process, which may, in the discretion of the board, be evidenced by participation in a twelve-step program or other similar group or process, may be considered;

(7) Not have been convicted of a felony in any jurisdiction within ten years preceding the date of application for license which conviction remains unreversed;

(8) Not have been convicted of a misdemeanor or felony in any jurisdiction if the offense for which he or she was convicted related to the practice of physical therapy, which conviction remains unreversed; and

(10) Meet any other requirements established by the board.

(b) A physical therapist assistant shall use the letters "PTA" immediately following his or her name to designate licensure under this article.

(c) A license to act as a physical therapist assistant issued by the board prior to July 1, 2010, is considered a license issued under this article: Provided, That a person holding a license issued prior to July 1, 2010, must renew the license pursuant to the provisions of this article.

§30-20-11. License to practice physical therapy from another jurisdiction.

(a) The board may issue a license to practice physical therapy to an applicant who holds a valid license or other authorization to practice physical therapy from another state, if the applicant:

(1) Holds a license or other authorization to practice physical therapy in another state which was granted after completion of educational requirements substantially equivalent to those required in this state;

(2) Passed an examination that is substantially equivalent to the examination required in this state;

(3) Does not have charges pending against his or her license or other authorization to practice, and has never had a license or other authorization to practice revoked;

(4) Has not previously failed an examination for a license to practice physical therapy in this state;

(5) Has paid the applicable fee;

(6) Is a citizen of the United States or is eligible for employment in the United States; and

(7) Has fulfilled any other requirement specified by the board.

(b) The board may issue a license to practice physical therapy to an applicant who has been educated outside of the United States, if the applicant:

(1) Provides satisfactory evidence that the applicant's education is substantially equivalent to the educational requirements for physical therapists under the provisions of this article;

(2) Provides written proof that the applicant's school of physical therapy is recognized by its own ministry of education;

(3) Has undergone a credentials evaluation as directed by the board that determines that the candidate has met uniform criteria for educational requirements as further established by rule;

(4) Has paid the applicable fee;

(5) Is eligible for employment in the United States; and

(6) Complete any additional requirements as required by the board.

(c) The board may issue a restricted license to an applicant who substantially meets the criteria established in subsection (b) of this section.

§30-20-12. Temporary permits.

(a) Upon completion of the application and payment of the nonrefundable fees, the board may issue a temporary permit, for a period not to exceed ninety days, to an applicant to practice as a physical therapist in this state or act as a physical therapist assistant in this state, if the applicant has completed the educational requirements set out in this article, pending the examination and who works under a supervising physical therapist with the scope of the supervision to be defined by legislative rule.

(b) The temporary permit expires thirty days after the board gives written notice to the permittee of the results of the first examination held following the issuance of the temporary permit, if the permittee receives a passing score on the examination. The permit shall expire immediately if the permittee receives a failing score on the examination.

(c) A temporary permit may be revoked by a majority vote of the board.

(d) An applicant may be issued only one temporary permit, and upon the expiration of the temporary permit, may not practice as a physical therapist or act as physical therapist assistant until he or she is fully licensed under the provisions of this article.

§30-20-13. Special volunteer physical therapist license, physical therapist assistant license; civil immunity for voluntary services rendered to indigents.

(a) There is established a special volunteer license for physical therapists or physical therapist assistants, as the case may be, retired or retiring from active practice who wish to donate their expertise for the care and treatment of indigent and needy patients in the clinical setting of clinics organized, in whole or in part, for the delivery of health care services without charge. The special volunteer license provided by this section shall be issued by the West Virginia Board of Physical Therapy to physical therapists or physical therapist assistants licensed or otherwise eligible for licensure under this article and the legislative rules promulgated hereunder without the payment of an application fee, license fee or renewal fee, and the initial license shall be issued for the remainder of the licensing period, and renewed consistent with the boards other licensing requirements. The board shall develop application forms for the special volunteer license provided in this section which shall contain the applicant’s acknowledgment that:

(1) The applicant’s practice under the special volunteer license will be exclusively devoted to providing physical therapy care to needy and indigent persons in West Virginia;

(2) The applicant may not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation but may donate to the clinic the proceeds of any reimbursement for any physical therapy services rendered under the special volunteer license;

(3) The applicant shall supply any supporting documentation that the board may reasonably require; and

(4) The applicant shall continue to participate in continuing education as required by the board for special volunteer physical therapists or physical therapist assistants license, as the case may be.

(b) Any person engaged in the active practice of physical therapy in this state whose license is in good standing may donate their expertise for the care and treatment of indigent and needy patients pursuant to an arrangement with a clinic organized, in whole or in part, for the delivery of health care services without charge to the patient. Services rendered pursuant to an arrangement may be performed in either the physical therapist’s office or the clinical setting.

(c) Any physical therapist or physical therapist assistant who renders any physical therapy 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 license authorized under subsection (a) of this section or pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) 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 physical therapy service at the clinic unless the act or omission was the result of gross negligence or willful misconduct on the part of the physical therapist or physical therapist assistant. In order for the immunity under this subsection to apply, there must be a written agreement between the physical therapist or physical therapist assistant and the clinic stating that the physical therapist or physical therapist assistant will provide voluntary uncompensated physical therapy services under the control of the clinic to patients of the clinic before the rendering of any services by the physical therapist or physical therapist 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.

(d) 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 a physical therapist or physical therapist assistant rendering voluntary physical therapy services at or for the clinic under a special volunteer license authorized under this section or who renders such care and treatment pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) of this section.

(e) For purposes of this section, "otherwise eligible for licensure" means the satisfaction of all the requirements for licensure for a physical therapist or physical therapist assistant, as the case may be, except the fee requirements.

(f) Nothing in this section may be construed as requiring the board to issue a special volunteer license to any physical therapist or physical therapist assistant whose license is or has been subject to any disciplinary action or to any physical therapist or physical therapist assistant who has surrendered a license or caused a license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her license, or who has elected to place a license in inactive status in lieu of having a complaint initiated or other action taken against his or her license or who has been denied a license.

(g) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any physical therapist or physical therapist 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 policy holder or any beneficiary thereof the policy, to any claim covered by the terms of the 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 a physical therapist or physical therapist assistant who holds a special volunteer license or who renders such care and treatment pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) of this section.

§30-20-14. Renewal requirements.

(a) All persons regulated by this article shall annually or biannually before January 1, renew his or her license by completing a form prescribed by the board and submitting any other information required by the board.

(b) The board shall charge a fee for each renewal of a license and shall charge a late fee for any renewal not paid by the due date.

(c) The board shall require as a condition of renewal that each licensee complete continuing education.

(d) The board may deny an application for renewal for any reason which would justify the denial of an original application for a license.

§30-20-15. Delinquent and expired license requirements.

(a) If a license is not renewed when due, then the board shall automatically place the licensee on delinquent status.

(b) The fee for a person on delinquent status shall increase at a rate, determined by the board, for each month or fraction thereof that the renewal fee is not paid, up to a maximum of thirty-six months.

(c) Within thirty-six months of being placed on delinquent status, if a licensee wants to return to active practice, he or she must complete all the continuing education requirements and pay all the applicable fees as set by rule.

(d) After thirty-six months of being placed on delinquent status, a license is automatically placed on expired status and cannot be renewed. A person whose license has expired must reapply for a new license.

§30-20-16. Inactive license requirements.

(a) A licensee who does not want to continue an active practice shall notify the board in writing and be granted inactive status.

(b) A person granted inactive status is not subject to the payment of any fee and may not practice physical therapy or act as a physical therapist assistant in this state.

(c) When the person wants to return to the practice of physical therapy or act as a physical therapist assistant, the person shall submit an application for renewal along with all applicable fees as set by rule.

§30-20-17. Exemptions from licensure.

(a) The following persons are exempt from licensing requirements under the provisions of this article:

(1) A person who practices physical therapy pursuant to a course of study at an institution of higher learning, including, but not limited to, activities conducted at the institution of higher learning and activities conducted outside the institution if under the on-site supervision of a physical therapist;

(2) A person who practices physical therapy in the United States Armed Services, United States Public Health Service or Veterans Administration pursuant to federal regulations for state licensure of health care providers;

(3) A physical therapist who is licensed in another jurisdiction of the United States or credentialed to practice physical therapy in another country if that person is teaching, demonstrating or providing physical therapy services in connection with teaching or participating in an educational seminar of no more than sixty calendar days in a calendar year;

(4) A physical therapist who is licensed in another state if that person is consulting;

(5) A physical therapist who is licensed in another jurisdiction, if that person by contract or employment is providing physical therapy to individuals affiliated with or employed by established athletic teams, athletic organizations or performing arts companies temporarily practicing, competing or performing in the state for no more than sixty calendar days in a calendar year;

(6) A physical therapist who is licensed in another jurisdiction who enters this state to provide physical therapy during a declared local, state or national disaster or emergency. This exemption applies for no longer than sixty calendar days in a calendar year following the declaration of the emergency. The physical therapist shall notify the board of their intent to practice;

(7) A physical therapist licensed in another jurisdiction who is forced to leave his or her residence or place of employment due to a declared local, state or national disaster or emergency and due to the displacement seeks to practice physical therapy. This exemption applies for no longer than sixty calendar days in a calendar year following the declaration of the emergency. The physical therapist shall notify the board of their intent to practice;

(8) A person administering simple massages and the operation of health clubs so long as not intended to constitute or represent the practice of physical therapy;

(9) A physical therapist assistant assisting an exempt physical therapist; and

(10) Nothing contained in this article prohibits a person from practicing within his or her scope of practice as authorized by law.

§30-20-18. Display of license.

(a) The board shall prescribe the form for a license and permit, and may issue a duplicate license or permit upon payment of a fee.

(b) Any person regulated by the article shall conspicuously display his or her license or permit at his or her principal business location.

§30-20-19. Complaints; investigations; due process procedure; grounds for disciplinary action.

(a) The board may upon its own motion based on credible information, and shall upon the written complaint of any person, cause an investigation to be made to determine whether grounds exist for disciplinary action under this article or the legislative rules promulgated pursuant to this article.

(b) Upon initiation or receipt of the complaint, the board shall provide a copy of the complaint to the licensee or permittee.

(c) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the licensee or permittee has violated subsection (g) of this section or rules promulgated pursuant to this article.

(d) Upon a finding that probable cause exists that the licensee or permittee has violated subsection (g) of this section or rules promulgated pursuant to this article, the board may enter into a consent decree or hold a hearing for the suspension or revocation of the license or permit or the imposition of sanctions against the licensee or permittee. Any hearing shall be held in accordance with the provisions of this article.

(e) Any member of the board or the executive secretary of the board may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations against any person regulated by the article.

(f) Any member of the board or its executive secretary may sign a consent decree or other legal document on behalf of the board.

(g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend, restrict or revoke the license or permit of, or impose probationary conditions upon or take disciplinary action against, any licensee or permittee for any of the following reasons once a violation has been proven by a preponderance of the evidence:

(1) Obtaining a license or permit by fraud, misrepresentation or concealment of material facts;

(2) Being convicted of a felony or other crime involving moral turpitude;

(3) Being guilty of unprofessional conduct which placed the public at risk, as defined by legislative rule of the board;

(4) Intentional violation of a lawful order or legislative rule of the board;

(5) Having had a license or other authorization revoked or suspended, other disciplinary action taken, or an application for licensure or other authorization revoked or suspended by the proper authorities of another jurisdiction;

(6) Aiding or abetting unlicensed practice; or

(7) Engaging in an act while acting in a professional capacity which has endangered or is likely to endanger the health, welfare or safety of the public.

(h) For the purposes of subsection (g) of this section, effective July 1, 2010, disciplinary action may include:

(1) Reprimand;

(2) Probation;

(3) Restrictions;

(4) Administrative fine, not to exceed $1,000 per day per violation;

(5) Mandatory attendance at continuing education seminars or other training;

(6) Practicing under supervision or other restriction; or

(7) Requiring the licensee or permittee to report to the board for periodic interviews for a specified period of time.

(i) In addition to any other sanction imposed, the board may require a licensee or permittee to pay the costs of the proceeding.

§30-20-20. Procedures for hearing; right of appeal.

(a) Hearings are governed by the provisions of section eight, article one of this chapter.

(b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.

(c) If the hearing is conducted by an administrative law judge, at the conclusion of a hearing he or she shall prepare a proposed written order containing findings of fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the board so directs. The board may accept, reject or modify the decision of the administrative law judge.

(d) Any member or the executive secretary of the board has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.

(e) If, after a hearing, the board determines the licensee or permittee has violated provisions of this article or the board's rules, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.

§30-20-21. Judicial review.

Any licensee or permittee adversely affected by a decision of the board entered after a hearing may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance with article six, chapter twenty-nine-a of this code.

§30-20-22. Criminal proceedings; penalties.

(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a licensee or permittee has committed a criminal offense under this article, the board may bring its information to the attention of an appropriate law-enforcement official.

(b) A person violating section one of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $5,000 or confined in jail not more than six months, or both fined and confined.

§30-20A-1. Unlawful acts.

 (a) It is unlawful for any person to practice or offer to practice athletic training in this state without a license or permit issued under the provisions of this article, or advertise or use any title or description tending to convey the impression that they are an athletic trainer unless the person has been duly licensed or permitted under the provisions of this article, and the license or permit has not expired, been suspended, or revoked.

(b) A business entity may not render any service or engage in any activity which, if rendered or engaged in by an individual, would constitute the practice of athletic training, except through a licensee or permittee.

(c) A person may not advertise or represent himself or herself as an "athletic trainer", "licensed athletic trainer", "certified athletic trainer", "athletic trainer certified", "L.A.T.", "C.A.T.", and/or "ATC" or make use of any words, abbreviations, titles, or insignia that indicate, imply, or represent that he or she is an athletic trainer, unless he or she is licensed by the board.

§30-20A-2. Applicable law.

The practices licensed under the provisions of this article and the Board of Physical Therapy are subject to §30-1-1 et seq. and §30-20A-1 et seq. of this code and any rules promulgated hereunder.

(a)The board has all the powers and duties set forth in this article, by rule, §30-1-1 et seq. of this code, and elsewhere in law.

(b)The board shall:

(1) Hold meetings, conduct hearings, and administer examinations;

(2) Establish requirements for licenses and permits;

(3) Establish procedures for submitting, approving, and rejecting applications for licenses and permits;

(4) Determine the qualifications of any applicant for licenses and permits;

(5) Prepare, conduct, administer, and grade examinations for licenses;

(6) Determine the passing grade for the examinations;

(7) Maintain records of the examinations the board or a third party administers, including the number of persons taking the examination and the pass and fail rate;

(8) Hire, discharge, establish the job requirements, and fix the compensation of the executive secretary;

(9) Maintain an office, and hire, discharge, establish the job requirements, and fix the compensation of employees, investigators, and contracted employees necessary to enforce the provisions of this article;

(10) Investigate alleged violations of the provisions of this article, legislative rules, orders, and final decisions of the board;

(11) Conduct disciplinary hearings of persons regulated by the board;

(12) Determine disciplinary action and issue orders;

(13) Institute appropriate legal action for the enforcement of the provisions of this article;

(14) Maintain an accurate registry of names and addresses of all persons regulated by the board;

(15) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;

(16) Establish the continuing education requirements for licenses;

(17) Issue, renew, combine, deny, suspend, restrict, revoke, or reinstate licenses and permits;

(18) Establish a fee schedule;

(19) Take all other actions necessary and proper to effectuate the purposes of this article;

(20) Propose rules for legislative approval, in accordance with the provisions of §29A-3-1 et seq. of this code to implement provisions of this article, including:

(A) Establish standards and requirements for licenses and permits;

(B) Establish procedures for examinations and re-examinations;

(C) Establish requirements for third parties to prepare and administer examinations and re-examinations;

(D) Establish educational and experience requirements;

(E) Establish the passing grade on examinations;

(F) Establish standards for approval of courses and curriculum;

(G) Establish procedures for the issuance and renewal of licenses and permits;

(H) Establish a fee schedule;

(I) Establish continuing education requirements for licenses;

(J) Establish the procedures for denying, suspending, restricting, revoking, reinstating, or limiting the practice of licensees and permittees;

(K) Adopt a standard for ethics;

(L) Establish requirements for inactive or revoked licenses or permits;

(M) Any other rules necessary to effectuate the provisions of this article; and

(N) All of the board’s rules in effect January 1, 2020, shall remain in effect until they are amended or repealed, and references to provisions of former enactments of this section are interpreted to mean provisions of this article;

(21) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the State Treasury designated the West Virginia Board of Physical Therapy Fund which is continued. The fund is used by the board for the administration of this article. Except as may be provided in §30-1-1 et seq. of this code, the board retains the amount in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund;

(22) Any amounts received as fines pursuant to this article shall be deposited into the General Revenue Fund of the State Treasury.

(c)The board may:

(1) Contract with third parties to administer examinations required under the provisions of this article;

(2) Sue and be sued in its official name as an agency of this state; and

(3) Confer with the Attorney General or his or her assistant in connection with legal matters and questions.

§30-20A-3. Definitions.

As used in this article:

"Applicant" means any person making application for an original or renewal license to act as an athletic trainer under the provisions of this article.

"Athletic injury or condition" means any injury or condition sustained by an individual that occurs during, or as a result of, the individual’s participation in organized athletic or recreational athletic activity that requires physical strength, agility, flexibility, speed, stamina, or range of motion or a substantially similar injury or condition resulting from occupational activity immediately upon the onset of such injury or condition.

"Athletic trainer" is an individual engaged in the practice of athletic training who holds a license under the provisions of this article.

"Athletic training" and "the practice of athletic training" means the care and services provided by a licensed athletic trainer as described under the provisions of this article.

"Board" means the West Virginia Board of Physical Therapy established under §30-20-1 et seq. of this code.

"Consulting" means that an athletic trainer renders an opinion or advice to another athletic trainer or health care provider through telecommunication or other means or electronic communication.

"Direct supervision" means the licensed athletic trainer must be physically present and be able to intervene on behalf of the athletic training student, permittee, and patient when the athletic training student is providing athletic training services.

"General supervision" means referral by prescription to treat conditions for an athletic injury or condition from a licensed doctor of medicine, doctor of osteopathy, doctor of chiropractic, podiatrist, or physical therapist except that the physical presence of the licensed doctor of medicine, doctor of osteopathy, doctor of chiropractic, podiatrist, or physical therapist is not required if the supervising licensed doctor of medicine, doctor of osteopathy, doctor of chiropractic, podiatrist, or physical therapist is readily available for consultation by direct communication, radio, telephone, facsimile, telecommunication, or other electronic means.

"License" means an athletic trainer license or license to act as an athletic trainer issued by the board under the provisions of this article.

 "Licensee" means a person licensed as an athletic trainer under the provisions of this article.

"Permittee" means any person holding a temporary permit issued pursuant to the provision of this article.

"Permit" or "temporary permit" means a temporary permit issued under the provisions of this article.

"The practice of athletic training" means the services as described in §30-20A-5 of this code.

§30-20A-4. License to practice athletic training.

 (a) To be eligible for a license to engage in the practice of athletic training, the applicant must:

(1) Be at least 18 years of age;

(2) Submit an application in the form prescribed by the board;

(3) An athletic trainer registration issued by the board prior to January 1, 2020, is considered a license issued under this article: Provided, That a person holding a license issued prior to January 1, 2020, must renew the license pursuant to a registration and renewal schedule adopted by the board and the provisions of this article;

(4) If subsequent to January 1, 2020, be a graduate of an accredited institution as approved by the Commission on Accreditation of Athletic Training Education or successor organization;

(5) Pass a national examination approved by the board;

(6) Complete a criminal background check as required by §30-1D-1 of this code;

(7) Pay the required fee;

(8) Not be an alcohol or drug abuser, as these terms are defined in §27-1A-11 of this code: Provided, That an applicant in an active recovery process, which may, in the discretion of the board, be evidenced by participation in a 12-step program or other similar group or process, may be considered;

(9) Not have been convicted of a felony in any jurisdiction within 10 years preceding the date of application for license which conviction remains unreversed;

(10) Not have been convicted of a misdemeanor or felony in any jurisdiction if the offense for which he or she was convicted related to the practice of athletic training, which conviction remains unreversed; and

(11) Has fulfilled any other requirement specified by the board.

(b) An athletic trainer shall use the letters "LAT" immediately following his or her name followed by the "ATC" credential to designate licensure under this article.

§30-20A-5. Scope of practice of an athletic trainer.

(a) The practice of athletic training is defined as the application of principles, methods, and procedures for managing athletic injuries or conditions, which shall include the prevention, emergency care, clinical examination and assessment, therapeutic intervention, and treatment of athletic injuries or conditions through the use of appropriate preventative and supportive devices, and within the professional preparation and education of a licensed athletic trainer subject to the general supervision within this article. Athletic training includes recognizing illness and referring to the appropriate health care professional and implementation of treatment pursuant to the orders of those professionals listed under "General Supervision" within this article. Athletic training also includes instruction to coaches, athletes, parents, medical personnel, and communities in the area of care and prevention of athletic injuries or conditions.

(b) The scope of practice described in this section does not include the practice of physical therapy, the practice of occupational therapy, the practice of medicine, the practice of osteopathic medicine, surgery, the practice of chiropractic, or the management of systemic medical or neurological conditions or diseases of body systems that are not within the professional preparation and education of a licensed athletic trainer.

§30-20A-6. License to practice athletic training from another jurisdiction.

 (a) The board may issue a license to practice athletic training to an applicant who holds a valid license or other authorization to practice athletic training from another state, if the applicant:

(1) Holds a license or other authorization to practice athletic training in another state which was granted after completion of educational requirements substantially equivalent to those required in this state;

(2) Passed an examination that is substantially equivalent to the examination required in this state;

(3) Does not have charges pending against his or her license or other authorization to practice, and has never had a license or other authorization to practice revoked;

(4) Has paid the applicable fee;

(5) Is a citizen of the United States or is eligible for employment in the United States; and

(6) Has fulfilled any other requirement specified by the board.

(b) The board may issue a license to practice athletic training to an applicant who has been educated outside of the United States, if the applicant:

(1) Provides satisfactory evidence that the applicant’s education is substantially equivalent to the educational requirements for athletic trainers under the provisions of this article;

(2) Provides written proof that the applicant’s school of athletic training is recognized by its own ministry of education;

(3) Has undergone a credentials evaluation as directed by the board that determines that the candidate has met uniform criteria for educational requirements as further established by rule;

(4) Has paid the applicable fee;

(5) Is eligible for employment in the United States; and

(6) Completes any additional requirements as required by the board.

(c) The board may issue a restricted license to an applicant who substantially meets the criteria established in subsection (b) of this section.

§30-20A-7. Temporary permits.

 (a) Upon completion of the application and payment of the nonrefundable fees, the board may issue a temporary permit, for a period not to exceed 90 days, to an applicant to practice as an athletic trainer in this state if the applicant has completed the educational requirements set out in this article, pending the examination, and who works under the direct supervision of a licensed athletic trainer.

(b) The temporary permit expires 30 days after the board gives written notice to the permittee of the results of the first examination held following the issuance of the temporary permit, if the permittee receives a passing score on the examination. The permit shall expire immediately if the permittee receives a failing score on the examination.

(c) A temporary permit may be revoked by a majority vote of the board.

(d) An applicant may be issued only one temporary permit, and, upon the expiration of the temporary permit, may not practice as an athletic trainer until he or she is fully licensed under the provisions of this article.

§30-21-1. Legislative findings and declaration of public policy.

The Legislature of the State of West Virginia hereby determines and finds that in the public interest persons should not engage in the practice of psychology in this state without the requisite experience and training and without adequate regulation and control; and that there is presently no adequate means to protect the interests of the citizens of this state from the unauthorized, unqualified and unregulated practice of psychology. It is therefore declared to be the public policy of this state that the practice of psychology affects the general welfare and public interest of the state and its citizens; that persons without the necessary qualifications, training and education, and persons not of good character should not engage in the practice of psychology; and that the evils of such unauthorized and unqualified practice may be best prevented and the interest of the public best served by regulating and controlling such practice as provided in this article.

§30-21-2. Definitions.

Unless the context in which used clearly requires a different meaning, as used in this article:

(a) "Applicant" means any person making application for an original or renewal license or a temporary permit under the provisions of this article.

(b) "Licensee" means any person holding a license or a temporary permit issued under the provisions of this article.

(c) "Board" means the board of examiners of psychologists created by this article.

(d) "Psychology" means the science involving the principles, methods and procedures of understanding, predicting and influencing behavior; the principles pertaining to learning, perception, motivation, thinking, emotions and interpersonal relationships; the methods and procedures of interviewing and counseling; the methods and procedures of psychotherapy, meaning the use of learning, conditioning methods and emotional reactions, in a professional relationship, to assist a person or persons to modify feelings, attitudes and behavior, which are intellectually, socially or emotionally maladjustive or ineffectual; the constructing, administering and interpreting of tests of intelligence, special abilities, aptitudes, interests, attitudes, personality characteristics, emotions and motivation; the psychological evaluation, prevention and improvements of adjustment problems of individuals and groups; and the resolution of interpersonal and social conflicts.

(e) "Practice of psychology" means the rendering or offering to render for a fee, salary or other compensation, monetary or otherwise, any psychological service involving: (i) The application of the principles, methods and procedures of understanding, predicting and influencing behavior; (ii) the application of the principles pertaining to learning, perception, motivation, thinking, emotions and interpersonal relationships; (iii) the application of the methods and procedures of interviewing and counseling; (iv) the application of the methods and procedures of psychotherapy, meaning the use of learning, conditioning methods and emotional reactions, in a professional relationship, to assist a person or persons to modify feelings, attitudes and behavior, which are intellectually, socially or emotionally maladjustive or ineffectual; (v) the constructing, administering and interpreting of tests of intelligence, special abilities, aptitudes, interests, attitudes, personality characteristics, emotions and motivation; (vi) the psychological evaluation, prevention and improvement of adjustment problems of individuals and groups; and (vii) the resolution of interpersonal and social conflicts.

However, for the purpose of this article, the term "practice of psychology" shall not include:

(1) Teaching, lecturing or engaging in research in psychology as part of salaried employment at an institution of higher learning;

(2) The official duties of a person employed as a psychologist by the State of West Virginia or any of its departments, agencies, divisions or bureaus, or local governments, except for the West Virginia Department of Education, a county board of education, or a regional education agency, which duties are performed under the direct and regular supervision of a licensee;

(3) The official duties of a person employed as a psychologist by any department, agency, division or bureau of the United States of America;

(4) The official duties of a person working under the direct and regular supervision of a licensee for the purpose of gaining the experience required for a license hereunder by the provisions of subdivision (4), subsection (a), section seven of this article, which experience is of a type approved by the board;

(5) The use, in good faith, of certain psychological techniques, procedures, methods and principles as an incident to engaging in a recognized occupation or profession, other than the practice of psychology, including, but not limited to, the occupation or profession of a physician, lawyer, dentist, social worker, sociologist, political scientist, economist, probation or parole officer, rehabilitation or marriage counselor, clergyman, audiologist, speech pathologist, teacher, educational or guidance counselor and a placement or personnel director;

(6) The activities of a student of psychology, psychological intern or psychological resident, which activities are a part of and are engaged in pursuant to a course of study at an institution of higher learning; or

(7) The activities of an assistant or technician which are performed under the direct and regular supervision of a licensee.

(f) "Examination" means the examination in psychology required by subdivision (5), subsection (a), section seven of this article.

(g) "School psychological services" means the activities which school psychologists may engage in to promote mental health and to facilitate the education of school age children, which include, but are not limited to, the following:

(A) Consultation, which includes collaboration with individuals and groups of school personnel, parents, families and representatives of community agencies;

(B) Psychological and psychoeducational assessment, which includes the gathering, interpreting and communicating of information derived from the assessment process which relates to learning and behavior;

(C) Intervention, which includes individual and group counseling, behavioral intervention and crisis intervention;

(D) Education, which includes parent training, school inservice and community education;

(E) Facilitation, which includes assisting in developing useful communication between diverse groups of people separated by institutional, bureaucratic, educational or other barriers;

(F) Research, which includes designing, reporting and utilizing the results of research of a psychological nature;

(G) Program planning and evaluation, which includes program development, program implementation, program evaluation and problem solving for organizational decision making;

(H) Supervision, which includes the supervision of intern school psychologists, other school psychologists and personnel contracted to provide either psychological or psychoeducational assessment data;

However, for the purpose of this article, the term "practice of school psychology" shall not include:

(1) The activities of clinical, counseling, child, industrial, health, and other types of psychology which the board determines to be outside the scope of school psychology activities;

(2) Teaching, lecturing or engaging in research in school psychology as part of salaried employment at an institution of higher learning;

(3) The official duties of a person employed as a school psychologist by the State of West Virginia or any of its departments, agencies, divisions or bureaus, or local governments, except for the West Virginia Department of Education, a county board of education, or a regional education service agency, which duties are performed under the direct and regular supervision of a licensee;

(4) The official duties of a person employed as a school psychologist by any department, agency, division or bureau of the United States of America;

(5) The official duties of a school psychologist working under the direct and regular supervision of a licensee for the purpose of gaining the experience required for a license hereunder by the provisions of subdivision (4), subsection (a), section seven of this article, which experience is of a type approved by the board;

(6) The use, in good faith, of certain psychological techniques, procedures, methods and principles as an incident to engaging in a recognized occupation or profession, other than the practice of school psychology, including, but not limited to, the occupation or profession of a physician, lawyer, dentist, social worker, sociologist, political scientist, economist, probation or parole officer, rehabilitation or marriage counselor, clergyman, audiologist, speech pathologist, teacher, educational or guidance counselor and placement or personnel director;

(7) The activities of a student of school psychology, school psychological intern or extern, which activities are a part of and are engaged in pursuant to a course of study at an institution of higher learning;

(8) The activities of an assistant or technician which are performed under the direct and regular supervision of a licensee.

(h) "Practice of school psychology" means the rendering or offering to render for a fee, salary or other compensation to an individual or to the public school psychological services as defined in this article;

(i) "School psychologist" means any person who proposes to provide school psychological services as defined herein, to the public and in so doing claims to have the knowledge, training, expertise and ethical standards necessary to engage in such practice;

(j) "School board" means a West Virginia county school board and also means the West Virginia Department of Education, or a regional educational service agency;

(k) "School board employee" means any person who provides services for the school board and is reimbursed via a salary and benefits and who has met the educational requirements under the state law and regulations of the West Virginia Board of Education to be certified or otherwise empowered by the State Superintendent of Schools to provide school psychological services for school boards;

(l) "School board contractee" means any person who provides services for one or more school boards and is reimbursed on a per evaluation, per unit of service, or some other contract basis;

(m) "School psychologist resident" means a school psychologist who provides school psychology services on a school board property and is a school board employee;

(n) "Licensed school psychologist" means a school psychologist who provides school psychology services on school board property and is a school board employee or contractee;

(o) "Licensed school psychologist independent practitioners" means a school psychologist who provides school psychology services to an individual or the public on school board or nonschool board property, and provide such services for a fee or other compensation, or as a school board employee or contractee.

§30-21-3. License required; firms, associations and corporations engaging in the practice of psychology.

(a) No person shall engage in, offer to engage in, or hold himself or herself out to the public as being engaged in, the practice of psychology in this state, nor shall any person use in connection with any trade, business, profession or occupation, except in those instances specifically excluded from the definition of the practice of psychology by subparagraphs (1), (2), (3), (4) and (6), subdivision (e), section two of this article, the word "psychologist," "psychology," "psychological" or any other title, word or abbreviation which induces or tends to induce the belief that such person is qualified to engage or is engaged in the practice of psychology, unless and until he or she shall first obtain a license or temporary permit to engage in the practice of psychology in accordance with the provisions of this article, which license or temporary permit remains unexpired, unsuspended and unrevoked: Provided, That such license or temporary permit shall not be required for an individual who is the holder of a school psychology certificate or permit issued by the West Virginia Department of Education and who is engaged in the practice of school psychology solely within the scope of employment as a school board employee: Provided, however, That no such license or temporary permit shall be required for a psychologist who is not a resident of this state, who is the holder of a license or certificate to engage in the practice of psychology issued by a state with licensing or certification requirements determined by the board to be at least as great as those provided in this article, who has no regular place of practice in this state and who engages in the practice of psychology in this state for a period of not more than ten days in any calendar year.

(b) No firm, association or corporation shall, except through a licensee or licensees, render any service or engage in any activity which if rendered or engaged in by any individual would constitute the practice of psychology.

§30-21-4. Duties of licensee; construction of article.

(a) It shall be the duty of a licensee when entering into any psychologist-client relationship to assist his client in obtaining professional help for all aspects of his problem which fall outside the boundaries of the licensee's competence. It shall also be the duty of a licensee to encourage his client to make provision for the medical diagnosis and treatment of relevant medical problems and, whenever indicated, to make referral to or seek consultation with medical specialists.

(b) Nothing in this article shall be construed as permitting the administering or prescribing of drugs or as infringing upon the practice of medicine and surgery.

§30-21-5. Creation of board of examiners of psychologists; members, terms, meetings, officers, oath and compensation; general provisions.

(a) There is hereby created the state board of examiners of psychologists which shall be composed of five members appointed by the Governor by and with the advice and consent of the Senate. Each member shall have been actively engaged in the practice of psychology or in the teaching of psychology in the State of West Virginia for at least two years immediately preceding his appointment and shall be the holder of a license under the provisions of this article, or, in the case of the members first appointed, shall be eligible for such a license: Provided, That at least one member of the board shall be a licensed school psychologist.

(b) The members of the board shall be appointed for overlapping terms of three years each and until their respective successors have been appointed and have qualified, except for the original appointments. For the purpose of original appointments, two members shall be appointed for a term of three years and until their successors have been appointed and have qualified, two members shall be appointed for a term of two years and until their successors have been appointed and have qualified and one member shall be appointed for a term of one year and until his successor has been appointed and has qualified. Members may be reappointed for any number of terms. Before entering upon the performance of his duties, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state. Vacancies shall be filled by appointment by the Governor for the unexpired term of the member whose office shall be vacant and such appointment shall be made within sixty days of the occurrence of such vacancy. Any member may be removed by the Governor in case of incompetency, neglect of duty, gross immorality or malfeasance in office.

(c) The board shall elect from its membership a chairman and secretary who shall serve at the will and pleasure of the board. A majority of the members of the board shall constitute a quorum and meetings shall be held at the call of the chairman or upon the written request of three members at such time and place as designated in such call or request, and, in any event, the board shall meet at least once annually to conduct the examination hereinafter provided for and to transact such other business as may come before it. Members may be paid such reasonable compensation as the board may from time to time determine, and in addition may be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their duties, which compensation and expenses shall be paid in accordance with the provisions of subsection (b), section six of this article.

§30-21-6. Powers and duties of board; funds of board.

(a) The board shall:

(1) Examine applicants and determine their eligibility for a license or temporary permit to engage in the practice of psychology;

(2) Examine applicants and determine their eligibility for a license or temporary permit to engage in the practice of school psychology as a licensed school psychologist and/or licensed school psychologist independent practitioner.

(3) Prepare, conduct and grade an apt and proper written, oral or written and oral examination of applicants for a license and determine the satisfactory passing score thereon;

(4) Promulgate reasonable rules and regulations implementing the provisions of this article and the powers and duties conferred upon the board hereby, including, but not limited to, reasonable rules and regulations establishing standards to insure the proper supervision of all persons working under the direct and regular supervision of a licensee under the provisions of this article, all of which reasonable rules and regulations shall be promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code, set reasonable fees and record them in legislative rules, Title 17, Series 1.

(5) Issue, renew, deny, suspend or revoke licenses and temporary permits to engage in the practice of psychology in accordance with the provisions of this article and, in accordance with the administrative procedures hereinafter provided, may review, affirm, reverse, vacate or modify its order with respect to any such denial, suspension or revocation;

(6) Investigate alleged violations of the provisions of this article, reasonable rules and regulations promulgated hereunder and orders and final decisions of the board and take appropriate disciplinary action against any licensee for the violation thereof or institute appropriate legal action for the enforcement of the provisions of this article, reasonable rules and regulations promulgated hereunder and orders and final decisions of the board or take such disciplinary action and institute such legal action;

(7) Employ, direct, discharge and define the duties of full or part-time professional, clerical or other personnel necessary to effectuate the provisions of this article;

(8) Keep accurate and complete records of its proceedings, certify the same as may be appropriate, and prepare, from time to time, a list showing the names and addresses of all licensees;

(9) Whenever it deems it appropriate, confer with the Attorney General or his assistants in connection with all legal matters and questions; and

(10) Take such other action as may be reasonably necessary or appropriate to effectuate the provisions of this article.

(b) All moneys paid to the board shall be accepted by a person designated by the board and deposited by him with the treasurer of the state and credited to an account to be known as the "board of examiners of psychologists fund." All of the reasonable compensation of the members of the board, the reimbursement of all reasonable and necessary expenses actually incurred by such members and all other costs and expenses incurred by the board in the administration of this article shall be paid from such fund, and no part of the state's General Revenue Fund shall be expended for this purpose.

§30-21-7. Qualifications of applicants; exceptions; applications; fee.

(a) To be eligible for a license to engage in the practice of psychology, the applicant must:

(1) Be at least eighteen years of age;

(2) Be of good moral character;

(3) Be a holder of a doctor of philosophy degree or its equivalent or a master's degree in psychology from an accredited institution of higher learning, with adequate course study at such institution in psychology, the adequacy of any such course study to be determined by the board;

(4) When the degree held is a doctor of philosophy degree or its equivalent, at least one thousand and eight hundred hours must be a predoctoral internship in the performance of any of the psychological services described in subdivision (e), section two of this article, including those activities excluded from the definition of the term "practice of psychology" in said subdivision (e), and, when the degree held is a master's degree, have at least five years' experience subsequent to receiving said degree in the performance of any of the psychological services described in said subdivision (e), including those activities excluded from the definition of the term "practice of psychology" in said subdivision (e);

(5) Have passed the examination prescribed by the board, which examination shall cover the basic subject matter of psychology and psychological skills and techniques;

(6) Not have been convicted of a felony or crime involving moral turpitude; and

(7) Not, within the next preceding six months, have taken and failed to pass the examination required by subdivision (5), subsection (a) of this section.

(b) The following persons shall be eligible for a license to engage in the practice of psychology without examination:

(1) Any applicant who holds a doctor of philosophy degree or its equivalent from an institution of higher learning, with adequate course study at such institution in psychology and who is a diplomate of the "American Board of Examiners in Professional Psychology"; and

(2) Any person who holds a license or certificate to engage in the practice of psychology issued by any other state, the requirements for which license or certificate are found by the board to be at least as great as those provided in this article.

(c) Any person who is engaged in the practice of psychology in this state, or is engaged in any of the activities described in subdivision (e), (1), (2) or (3), section two of this article, in this state, on the effective date of this article and has been so engaged for a period of two consecutive years immediately prior thereto shall be eligible for a license to engage in the practice of psychology without examination and without meeting the requirements of subdivision (4), subsection (a) of this section, if application for such license is made within six months after the effective date of this article and if such person meets the requirements of subdivisions (1), (2), (3) and (6), subsection (a) of this section: Provided, That an equivalent of a master's degree in psychology may be considered by the board, only for the purpose of this subsection (c), as meeting the requirements of subdivision (3), subsection (a) of this section.

(d) Any applicant for any such license shall submit an application therefor at such time (subject to the time limitation set forth in subsection (c) of this section), in such manner, on such forms and containing such information as the board may from time to time by reasonable rule and regulation prescribe, and pay to the board an application fee.

§30-21-7a. Eligibility for school psychologist resident.

(a) To qualify as a school psychologist resident the applicant must have obtained a master's degree in school psychology from a board approved graduate program within a board approved institution of higher education.

(b) If such individuals are employed by school board(s) to practice school psychology, they may, within sixty days of the initiation of their employment, register with the board and pay a reasonable fee.

§30-21-7b. Eligibility for licensed school psychologist.

To meet minimum requirements for this license the applicant must:

(1) Have obtained a valid certificate of school psychology granted by the State Superintendent of Schools, have obtained a certificate of advanced study in school psychology and obtained a master's degree in school psychology from a board-approved institution of higher education, or have received equivalent training as determined by the board;

(2) Have completed at least three academic years of supervised experience in school psychology which includes a one year post degree internship or externship towards completion of the requirements for a certificate of advance study in school psychology or similar designation approved by the board: Provided, That such supervised experience shall include at least one face to face meeting between the supervisor and supervisee per month.

(3) Have passed a standardized national examination in school psychology promulgated by the National Association of School Psychologists or other similar organizations and approved as a standardized testing vehicle for school psychologists by the board;

(4) Have passed an oral examination conducted by the board; and

(5) Complete appropriate application and other forms, provide evidence of credentials, and pay appropriate fees as determined by the board.

§30-21-7c. Eligibility for licensed school psychologist independent practitioner.

(1) Such applicants shall meet all the minimum requirements for eligibility as a licensed school psychologist;

(2) Complete an additional two years of board approved supervision by a licensed school psychologist; and

(3) Pass an oral examination conducted by the board.

§30-21-7d. Eligibility for current school psychologist.

(1) Any person who holds a current certificate of advanced study and has the equivalent of three academic years experience in school psychology or any licensed psychologist who has been approved by the state Department of Education on the effective date of this section shall not be required to comply with the provisions of section seven-b, article twenty-one, chapter thirty of this code. Such persons shall submit appropriate documentation of credentials to the board, application form, and pay an application fee: Provided, That such applicants pass an oral exam given by the board of psychology.

(2) Such persons seeking eligibility as a licensed school psychologist independent practitioner must meet the provisions of section seven-b of this article, must have completed the equivalency of two years supervised experience and shall complete an oral examination before the board, submit required documentation, pay appropriate fees and complete additional supervision and training requirements as determined by the board. Applicants seeking eligibility pursuant to this section must make application on or before July 1, 1992.

§30-21-7e. Eligibility of doctoral applicants.

Applicants with a doctorate of philosophy degree or its equivalent who apply for licensure as a school psychologist must complete one year of board-approved supervision or two years of such supervision if they have not had an internship, pass a standardized national examination in school psychology as defined in subdivision (3), section seven-b of this article, pass an oral examination given by the board, and pay appropriate fees.

§30-21-8. Issuance of license; renewal of license; renewal fee; display of license.

(a) The board shall issue a license to engage in the practice of psychology to those persons who meet the requirements of this article.

(b) The license shall be valid for a period of two years from the date issued and may be renewed for a period of two years without examination upon application for renewal on a form prescribed by the board and payment to the board of a reasonable renewal fee to be set by the board by legislative rule: Provided, That the board may deny an application for renewal for any reason which would justify the denial of an original application for a license.

(c) The board shall prescribe the form of licenses and each license shall be conspicuously displayed by the licensee at his principal place of practice.

§30-21-8a. Issuance of license; renewal of license; renewal fee; display of license.

On and after July 1, 1991 and thereafter, whenever the board finds that applicants meet all of the requirements of this article for a license to engage in the practice of school psychology, it shall forthwith issue to them such licenses; and otherwise the board shall deny the same. The license shall be valid for a period of three years from the date issued and may be renewed for a period of three years without examination upon application for renewal on a form prescribed by the board and payment to the board of a renewal fees: Provided, That the board may deny an application for renewal for any reason which would justify the denial of an original application for a license. The board shall prescribe the form of licenses and each license shall be conspicuously displayed by the licensee at the licensee's principal place of practice.

§30-21-9. Temporary permits.

(a) Upon proper application, the board may issue, without examination, a temporary permit to engage in the practice of psychology in this state:

(1) Pending examination, to an applicant who meets the qualifications of subdivisions (1), (2), (3), (4), (6) and (7), subsection (a), section seven of this article, which temporary permit shall expire thirty days after the board gives written notice of the results of the examination held next following the issuance of such temporary permit and such permit may not be renewed nor may another permit be issued to the same person; and

(2) To a psychologist who is not a resident of this state and who meets the requirements of subdivisions (1), (2), (3), (4), (6) and (7), subsection (a), section seven of this article, which temporary permit shall be valid only for a period of ninety days in the calendar year in which issued, and such permit may not be renewed nor may another permit be issued to the same person in the same calendar year.

(b) The fee for any temporary permit shall be set by the board by legislative rule.

§30-21-10. Suspension or revocation of license or temporary permit.

(a) The board may at any time upon its own motion and shall upon the verified written complaint of any person conduct an investigation to determine whether there are any grounds for the suspension or revocation of a license or temporary permit issued under the provisions of this article.

(b) The board shall suspend or revoke any license or temporary permit when it finds the holder thereof has:

(1) Been convicted of a felony or other crime involving moral turpitude;

(2) Obtained a license or temporary permit by means of fraud or deceit;

(3) Been incompetent, grossly negligent, or guilty of other malpractice as defined by the board by reasonable rules and regulations; or

(4) Failed or refused to comply with the provisions of this article or any reasonable rule and regulation promulgated by the board hereunder or any order or final decision of the board.

(c) The board shall also suspend or revoke any license or temporary permit if it finds the existence of any grounds which would justify the denial of an application for such license or temporary permit if application were then being made for it.

§30-21-10a. Rulemaking.

(a) The board may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to provide for:

(1) Licensure requirements, including requirements for applications, examinations, reciprocity, temporary permits and reinstatement;

(2) Fees for licenses, renewals of licenses and other services provided by the board;

(3) Experience, education and continuing education requirements and approval of courses; and

(4) Any other purpose to carry out the requirements of this article.

(b) Any rules in effect as of the passage of this article will remain in effect until amended, modified, repealed or replaced.

§30-21-11. Procedures for hearing.

(a) Whenever the board shall deny an application for any original or renewal license or deny an application for a temporary permit or shall suspend or revoke any license or temporary permit, it shall make and enter an order to that effect and serve a copy thereof on the applicant or licensee, as the case may be, by certified mail, return receipt requested. Such order shall state the grounds for the action taken and shall require that any license or temporary permit suspended or revoked thereby shall be returned to the board by the holder within twenty days after receipt of said copy of said order.

(b) Any person adversely affected by any such order shall be entitled to a hearing thereon (as to all issues not excluded from the definition of a "contested case" as set forth in article one, chapter twenty-nine-a of this code) if, within twenty days after receipt of a copy thereof, he files with the board a written demand for such hearing. A demand for hearing shall operate automatically to stay or suspend the execution of any order suspending or revoking a license or temporary permit or denying an application for a renewal license. The board may require the person demanding such hearing to give reasonable security for the costs thereof and if such person does not substantially prevail at such hearing such costs shall be assessed against him and may be collected by an action at law or other proper remedy.

(c) Upon receipt of a written demand for such hearing, the board shall set a time and place therefor not less than ten and not more than thirty days thereafter. Any scheduled hearing may be continued by the board upon its own motion or for good cause shown by the person demanding the hearing.

(d) All of the pertinent provisions of article five, chapter twenty-nine-a of this code shall apply to and govern the hearing and the administrative procedures in connection with and following such hearing, with like effect as if the provisions of said article five were set forth in this subsection.

(e) Any such hearing shall be conducted by a quorum of the board. For the purpose of conducting any such hearing any member of the board shall have the power and authority to issue subpoenas and subpoenas duces tecum which shall be issued and served within the time, for the fees and shall be enforced, as specified in section one, article five of said chapter twenty- nine-a, and all of the said section one provisions dealing with subpoenas and subpoenas duces tecum shall apply to subpoenas and subpoenas duces tecum issued for the purpose of a hearing hereunder.

(f) At any such hearing the person who demanded the same may represent himself to be represented by an attorney at law admitted to practice before any circuit court of this state. Upon request by the board, it shall be represented at any such hearing by the Attorney General or his assistants without additional compensation.

(g) After any such hearing and consideration of all of the testimony, evidence and record in the case, the board shall render its decision in writing. The written decision of the board shall be accompanied by findings of fact and conclusions of law as specified in section three, article five, chapter twenty- nine-a of this code, and a copy of such decision and accompanying findings and conclusions shall be served by certified mail, return receipt requested, upon the person demanding such hearing, and his attorney of record, if any.

(h) The decision of the board shall be final unless reversed, vacated or modified upon judicial review thereof in accordance with the provisions of section twelve of this article.

§30-21-12. Judicial review; appeal to Supreme Court of Appeals; legal representation for board.

Any person adversely affected by a decision of the board rendered after a hearing held in accordance with the provisions of section eleven of this article shall be entitled to judicial review thereof. All of the pertinent provisions of section four, article five, chapter twenty-nine-a of this code shall apply to and govern such judicial review with like effect as if the provisions of said section four were set forth in this section.

The judgment of the circuit court shall be final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals in accordance with the provisions of section one, article six, chapter twenty-nine-a of this code.

Legal counsel and services for the board in all appeal proceedings in any circuit court and the Supreme Court of Appeals shall be provided by the Attorney General or his assistants and in any circuit court by the prosecuting attorney of the county as well, all without additional compensation.

§30-21-13. Penalties.

Any person who violates any of the provisions of this article, any of the reasonable rules and regulations promulgated hereunder or any order or any final decision of the board shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $500, or imprisoned in the county jail not more than six months, or both fined and imprisoned.

§30-21-14. Actions to enjoin violations.

Whenever it appears to the board that any person has been or is violating or is about to violate any provision of this article, any reasonable rule and regulation promulgated hereunder or any order or final decision of the board, the board may apply in the name of the state to the circuit court of the county in which the violation or violations or any part thereof has occurred, is occurring or is about to occur, or the judge thereof in vacation, for an injunction against such person and any other persons who have been, are or are about to be, involved in any practices, acts or omissions, so in violation, enjoining such person or persons from any such violation or violations. Such application may be made and prosecuted to conclusion whether or not any such violation or violations have resulted or shall result in prosecution or conviction under the provisions of section thirteen of this article.

Upon application by the board, the circuit courts of this state may by mandatory or prohibitory injunction compel compliance with the provisions of this article, the reasonable rules and regulations promulgated hereunder and all orders and final decisions of the board. The court may issue a temporary injunction in any case pending a decision on the merits of any application filed.

The judgment of the circuit court upon any application permitted by the provisions of this section shall be final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals. Any such appeal shall be sought in the manner and within the time provided by law for appeals from circuit courts in other civil actions.

The board shall be represented in all such proceedings by the Attorney General or his assistants and in such proceedings in the circuit court by the prosecuting attorneys of the several counties as well, all without additional compensation.

§30-21-15. Severability.

If any provision of this article or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect other provisions or applications of the article, and to this end the provisions of this article are declared to be severable.

§30-21-16.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§30-21-17. Special volunteer psychologists license; civil immunity for voluntary services rendered to indigents.

(a) There is established a special volunteer psychologists license for psychologists retired or retiring from the active practice of psychology who wish to donate their expertise for the psychological care and treatment of indigent and needy patients in the clinical setting of clinics organized, in whole or in part, for the delivery of health care services without charge. The special volunteer psychologist license shall be issued by the West Virginia Board of Examiners of Psychologists to psychologists licensed or otherwise eligible for licensure under this article and the legislative rules promulgated hereunder without the payment of an application fee, license fee or renewal fee, and the initial license shall be issued for the remainder of the licensing period, and renewed consistent with the boards other licensing requirements. The board shall develop application forms for the special license provided in this subsection which shall contain the psychologist’s acknowledgment that:

(1) The psychologist’s practice under the special volunteer psychologists license will be exclusively devoted to providing psychological care to needy and indigent persons in West Virginia;

(2) The psychologist will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation but may donate to the clinic the proceeds of any reimbursement, for any psychological services rendered under the special volunteer psychological license;

(3) The psychologist will supply any supporting documentation that the board may reasonably require; and

(4) The psychologist agrees to continue to participate in continuing education as required by the board for a special volunteer psychologists license.

(b) Any person engaged in the active practice of psychology in this state whose license is in good standing may donate their expertise for the care and treatment of indigent and needy patients pursuant to an arrangement with a clinic organized, in whole or in part, for the delivery of health care services without charge to the patient. Services rendered pursuant to an arrangement may be performed in either the psychologist’s office or the clinical setting.

(c) Any psychologist who renders any psychological 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 psychologist 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 psychological service at the clinic unless the act or omission was the result of the psychologist’s gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there must be a written agreement between the psychologist and the clinic pursuant to which the psychologist will provide voluntary uncompensated psychological services under the control of the clinic to patients of the clinic before the rendering of any services by the psychologists 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.

(d) 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 a psychologist rendering voluntary psychological services at or for the clinic under a special volunteer psychological license authorized under subsection (a) of this section or who renders such care and treatment pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) of this section.

(e) For purposes of this section, "otherwise eligible for licensure" means the satisfaction of all the requirements for licensure as listed in section seven of this article and in the legislative rules promulgated thereunder, except the fee requirements of subsection (d) of that section and of the legislative rules promulgated by the board relating to fees.

(f) Nothing in this section may be construed as requiring the board to issue a special volunteer psychologist license to any psychologist whose license is or has been subject to any disciplinary action or to any psychologist who has surrendered a psychologist license or caused such license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her license, or who has elected to place a psychologist license in inactive status in lieu of having a complaint initiated or other action taken against his or her license, or who has been denied a psychologist license.

(g) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any psychologist 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 a psychologist who holds a special volunteer psychologist license or who renders such care and treatment pursuant to an arrangement with a clinic as authorized pursuant to subsection (b) of this section.

§30-22-1. License required to practice.

The practice of landscape architecture requires education, training and experience and should only be practiced by a licensed landscape architect. Therefore, the Legislature finds that in order to protect the health, safety, interest and welfare of the public and to provide for the regulation of landscape architecture in this state, a person must have a license, as provided in this article, to practice as a landscape architect.

§30-22-2. Unlawful acts.

(a) It is unlawful for any person to practice or offer to practice landscape architecture in this state without a license issued under the provisions of this article, or advertise or use any title or description tending to convey the impression that the person is a licensed landscape architect, unless such person has been duly licensed under the provisions of this article.

(b) It is unlawful for any firm to practice or offer to practice landscape architecture in this state without a certificate of authorization issued under the provisions of this article, or advertise or use any title or description tending to convey the impression that it is a landscape architectural firm, unless such firm has been issued a certificate of authorization under the provisions of this article.

§30-22-3. Applicable law.

The practice of landscape architecture and the board of Landscape Architects are subject to the provisions of article one of this chapter and the provisions of this article and any rules promulgated thereunder.

§30-22-4. Definitions.

As used in this article, the following words and terms have the following meanings, unless the context clearly indicates otherwise:

(a) "Accredited" means a school, college or university accredited by the Landscape Architectural Accreditation Board (LAAB) or any other accrediting body recognized by the board.

(b) "Applicant" means a person making application for a license or a permit, or a firm making application for a certificate of authorization, under the provisions of this article.

(c) "Board" means the West Virginia Board of Landscape Architects.

(d) "Certificate of authorization" means a certificate issued under the provisions of this article to a firm providing landscape architectural services.

(e) "Certificate of authorization holder" means a firm certified under the provisions of this article to provide landscape architectural services.

(f) "Examination" means the examination in landscape architecture required for licensure.

(g) "Firm" means any business entity, partnership, association, company, corporation, limited partnership, limited liability company or other entity providing landscape architectural services.

(h) "Landscape architect" means a person licensed under the provisions of this article to practice landscape architecture.

(i) "Landscape architecture" means the analysis, planning, design, management and stewardship of the natural and built environments.

(j) "License" means a landscape architecture license issued under the provisions of this article.

(k) "Licensee" means a person holding a landscape architecture license issued under the provisions of this article.

(l) "Permittee" means a person holding a temporary permit.

(m) "Practice of landscape architecture" means the performance of professional services, including but not limited to, analysis, consultations, evaluations, research, planning, design, management or responsible supervision of projects principally directed at the functional, aesthetic use, preservation and stewardship of the land and natural and built environments, including:

(1) Investigation, selection and allocation of land and water resources for appropriate uses;

(2) Formulation of feasibility studies and graphic and written criteria to govern the planning, design and management of land and water resources;

(3) Preparation, review and analysis of those aspects of land use master plans, subdivision plans and preliminary plats as are related to landscape architecture;

(4) Determination of the location and siting of improvements, including buildings and other features, as well as the access and environs for those improvements associated with the practice of landscape architecture;

(5) Design of land forms, soil conservation and erosion control methods, site lighting, water features, irrigation systems, plantings, pedestrian and vehicular circulation systems and related construction details, and natural drainage, surface and ground water drainage systems: Provided, That such systems do not require structural design of system components or a hydraulic analysis of the receiving storm water conveyance system; and

(6) Preparation, filing and administration of plans, drawings, specifications and other related construction documents.

(n) "Temporary permit" means a permit to practice landscape architecture issued by the board for a period of time not to exceed one year.

§30-22-5. Board of Landscape Architects.

(a) The West Virginia Board of Landscape Architects is hereby continued and shall be composed of three members, two of whom must be licensed landscape architects, appointed by the Governor by and with the advice and consent of the Senate, for staggered terms of three years.

(b) Each licensed member of the board, at the time of his or her appointment, must have held a license in this state for a period of not less than three years and must have been a resident of this state for a period of not less than one year immediately preceding the appointment.

(c) Each member of the board must be a resident of this state during the appointment term.

(d) No member may serve more than three consecutive full terms and any member having served three consecutive full terms may not be appointed for one year after completion of his or her third full term. A member shall continue to serve until his or her successor has been appointed and qualified. Any member currently serving on the board on the effective date of this article may be reappointed in accordance with the provisions of this section.

(e) A vacancy on the board shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant.

(f) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.

(g) Any member of the board immediately and automatically forfeits his or her membership if he or she has his or her license to practice suspended or revoked by the board, is convicted of a felony under the laws of any state or the United States, or becomes a nonresident of this state.

(h) The board shall designate one of its members as chairperson and one member as secretary-treasurer who shall serve at the will of the board.

(i) Each member of the board is entitled to receive compensation and expense reimbursement in accordance with article one of this chapter.

(j) A majority of the members of the board shall constitute a quorum.

(k) The board shall hold at least one annual meeting. Other meetings shall be held at the call of the chairperson or upon the written request of two members, at such time and place as designated in the call or request.

§30-22-5a.

Repealed.

Acts, 2006 Reg. Sess., Ch. 183.

§30-22-6. Powers and duties of the board.

(a) The board has all the powers and duties set forth in this article, by rule, in article one of this chapter, and elsewhere in law.

(b) The board's powers and duties include:

(1) Holding meetings, conducting hearings and administering examinations and reexaminations;

(2) Setting the requirements for a license, temporary permit and certificate of authorization;

(3) Establishing procedures for submitting, approving and rejecting applications for a license, temporary permit and certificate of authorization;

(4) Determining the qualifications of any applicant for a license, temporary permit and certificate of authorization;

(5) Preparing, conducting, administering and grading written, oral or written and oral examinations and reexaminations for a license;

(6) Contracting with third parties to prepare and/or administer the examinations and reexaminations required under the provisions of this article;

(7) Determining the passing grade for the examinations;

(8) Maintaining records of the examinations and reexaminations the board or a third party administers, including the number of persons taking the examination or reexamination and the pass and fail rate;

(9) Maintaining an accurate registry of names and addresses of all persons and firms regulated by the board;

(10) Defining, by legislative rule, the fees charged under the provisions of this article;

(11) Issuing, renewing, denying, suspending, revoking or reinstating licenses, temporary permits and certificates of authorization;

(12) Establishing, by legislative rule, the continuing education requirements for licensees;

(13) Suing and being sued in its official name as an agency of this state;

(14) Maintaining an office, and hiring, discharging, setting the job requirements and fixing the compensation of employees and investigators necessary to enforce the provisions of this article;

(15) Investigating alleged violations of the provisions of this article, the rules promulgated hereunder, and orders and final decisions of the board;

(16) Conducting disciplinary hearings of all persons and business entities regulated by the board;

(17) Setting disciplinary action and issuing orders;

(18) Instituting appropriate legal action for the enforcement of the provisions of this article;

(19) Keeping accurate and complete records of its proceedings, and certifying the same as may be appropriate;

(20) Proposing rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article; and

(21) Taking all other actions necessary and proper to effectuate the purposes of this article.

§30-22-7. Rule-making authority.

(a) The board shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this article, including the establishment of:

(1) Standards and requirements for licensure, temporary permits and certificates of authorization;

(2) Procedures for examinations and reexaminations;

(3) Requirements for third parties to prepare and/or administer examinations and reexaminations;

(4) Educational and experience requirements, and the passing grade on the examination for licensure;

(5) Procedures for the issuance and renewal of a license, temporary permit and certificate of authorization;

(6) A fee schedule: Provided, That the fee schedule in effect as of July 1, 2005, will remain in effect until amended, modified, repealed or replaced by the legislative rule promulgated pursuant to this subsection;

(7) Continuing education requirements for licensees;

(8) The procedures for denying, suspending, revoking, reinstating or limiting the practice of a licensee, permittee or certificate of authorization holder;

(9) Requirements for inactive or revoked licenses, temporary permits or certificates of authorization; and

(10) Any other rules necessary to effectuate the provisions of this article.

(b) All rules in effect on the effective date of this article shall remain in effect until they are amended, modified, repealed or replaced.

§30-22-8. Fees; special revenue account; administrative fines.

(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the state Treasury designated the "Board of Landscape Architects Fund," which fund is hereby continued. The fund shall be used by the board for the administration of this article. Except as may be provided in article one of this chapter, the board shall retain the amounts in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.

(b) Any amounts received as fines imposed pursuant to this article shall be deposited into the General Revenue Fund of the state Treasury.

§30-22-9. Education, experience and examination requirements for licensure.

(a) An applicant for licensure under this article must have completed one of the following educational and/or experience requirements:

(1) Has a bachelor degree in landscape architecture from an accredited college or university and at least two years of experience in landscape architecture under the supervision of a landscape architect or a person having qualifications acceptable to the board and similar to the qualifications of a landscape architect;

(2) Has a graduate degree in landscape architecture from an accredited college or university and at least one year of experience in landscape architecture under the supervision of a landscape architect or a person having qualifications acceptable to the board and similar to the qualifications of a landscape architect; or

(3) (A) Prior to December 31, 2006, has completed at least ten years of experience in landscape architecture, including at least six years of experience in landscape architecture under the supervision of a landscape architect or a person having qualifications acceptable to the board and similar to the qualifications of a landscape architect; or

(B) Prior to December 31, 2006, has begun the ten years of experience in landscape architecture set out in subdivision (3) (A) of this subsection, and has not completed the experience requirements prior to December 31, 2006, then the person must notify the board that he or she will be making application under this subdivision and comply with the procedures prescribed by the board; or

(C) On and after January 1, 2007, has completed at least ten years of experience in landscape architecture under the supervision of a landscape architect or a person having qualifications acceptable to the board and similar to the qualifications of a landscape architect.

(b) An applicant for licensure under this article must pass the examination prescribed by the board.

§30-22-10. License requirements.

(a) The board shall issue a license to practice under the provisions of this article to an applicant who meets the following requirements:

(1) Is of good moral character;

(2) Is at least eighteen years of age;

(3) Is a citizen of the United States or is eligible for employment in the United States;

(4) Has not been convicted of a crime involving moral turpitude;

(5) Has not had his or her application for a license to practice as a landscape architect refused in any state of the United States;

(6) Has not had his or her license to practice landscape architecture suspended or revoked in any state of the United States; and

(7) Has completed the licensure requirements set out in this article and the rules promulgated hereunder.

(b) The board may issue a license to practice under the provisions of this article to an applicant who does not meet the licensure requirements set out in subdivisions (5) or (6) of subsection (a) of this section, but who does meet the licensure requirements established by rule by the board.

(c) An application for a license shall be made on forms prescribed by the board.

(d) An applicant shall pay all the applicable fees.

(e) A license to practice landscape architecture issued by the board prior to July 1, 2006, shall for all purposes be considered a license issued under this article: Provided, That a person holding a license to practice landscape architecture issued prior to July 1, 2006, must renew the license pursuant to the provisions of this article.

§30-22-11. License from another jurisdiction; license to practice in this state.

The board may issue a license to practice landscape architecture in this state, without requiring an examination, to an applicant of good moral character who holds a valid license or other authorization to practice landscape architecture from another jurisdiction, if the applicant:

(1) Holds a license or other authorization to practice landscape architecture in another jurisdiction and meets requirements which are substantially equivalent to the licensure requirements set forth in this article;

(2) Is not currently being investigated by a disciplinary authority of this state or another jurisdiction, does not have charges pending against his or her license or other authorization to practice landscape architecture, and has never had a license or other authorization to practice landscape architecture revoked;

(3) Has not previously failed an examination for licensure in this state;

(4) Has paid all the applicable fees; and

(5) Has completed such other action as required by the board.

§30-22-12. License renewal requirements.

(a) A licensee shall, annually or biennially upon or before July 1, renew his or her license by completing a form prescribed by the board and paying a renewal fee.

(b) At least thirty days prior to July 1, either annually or biennially, the secretary-treasurer of the board shall mail to every licensee a notice of renewal, an application for renewal and a statement for the renewal fee.

(c) The board shall charge a fee for each renewal of a license and a late fee for any renewal not paid in a timely manner.

(d) The board shall require as a condition for the renewal of a license that each licensee complete continuing education requirements.

(e) The board may deny an application for renewal for any reason which would justify the denial of an original application for a license.

§30-22-13. Inactive license requirements.

(a) A licensee who chooses not to continue in active practice and notifies the board in writing, may be granted inactive status.

(b) A person granted inactive status shall pay an inactive fee, is exempt from the continuing education requirements and cannot practice in this state.

(c) When an inactive licensee wants to return to active practice, he or she must complete all the continuing education requirements, pay all the applicable fees and meet all the other requirements prescribed by the board.

§30-22-14. Retired license requirements.

(a) A licensee who chooses to retire and notifies the board in writing, may be granted retired status.

(b) A person granted retired status cannot practice landscape architecture in this state.

§30-22-15. Reinstatement.

The board may reinstate a license upon a showing that the applicant is qualified to resume practice. The applicant shall pay all applicable fees and shall meet all the requirements prescribed by the board.

§30-22-16. Temporary permits.

(a) Upon proper application and payment of the applicable fees, the board may issue a temporary permit, for a period of time not to exceed one year, to an applicant who has completed the educational and/or experience requirements set out in this article, but who has not taken the examination.

(b) The temporary permit expires thirty days after the board gives written notice to the permittee of the results of the first examination held following the issuance of the temporary permit.

(c) The temporary permit may not be renewed nor another temporary permit be issued to the same person.

(d) The temporary permit may be revoked for any reason which would justify the suspension, revocation, limitation or denial of a license.

§30-22-17. Display of license.

(a) The board shall prescribe the form for a license and may issue a duplicate license, upon payment of a fee.

(b) A licensee shall conspicuously display his or her license at his or her principal place of practice.

§30-22-18. Seal requirements.

(a) Each licensee must have a seal, authorized by the board, which seal shall include the licensee's name and the words: "Professional Landscape Architect, State of West Virginia," and any other words or figures prescribed by the board.

(b) All working drawings and specifications prepared by a licensee shall be signed and stamped with the licensee's seal: Provided, That nothing contained in this article shall be construed to permit the seal of a landscape architect to serve as a substitute for the seal of an architect, an engineer or a professional surveyor whenever the seal of such architect, engineer or professional surveyor is required by law.

(c) It is unlawful for a person who is not licensed under the provisions of this article to affix a seal on a document.

§30-22-19. Certificate of authorization requirements.

(a) After July 1, 2006, a firm practicing landscape architecture in West Virginia shall have a certificate of authorization.

(b) The board shall issue a certificate of authorization to a firm that:

(1) Wants to practice landscape architecture in West Virginia;

(2) Provides proof that the firm employs a West Virginia licensed landscape architect;

(3) Has paid all applicable fees; and

(4) Completes such other requirements as specified by the board.

(c) The name of the employed licensee in direct control or having personal supervision of the practice of the firm shall appear as the landscape architect on all plans, drawings, specifications, reports or other instruments of service rendered or submitted by the firm.

§30-22-20. Certificate of authorization renewal requirements.

(a) A firm wanting to continue in active practice shall, annually or biennially upon or before July 1, renew its certificate of authorization and pay a renewal fee.

(b) At least thirty days prior to July 1, either annually or biennially, the secretary-treasurer of the board shall mail to every certificate of authorization holder a notice of renewal, an application for renewal and a statement for the renewal fee.

(c) The board shall charge a fee for each renewal of a certificate of authorization and a late fee for any renewal not paid in a timely manner.

§30-22-21. Display of certificate of authorization.

(a) The board shall prescribe the form for a certificate of authorization, and may issue a duplicate certificate of authorization upon payment of a fee.

(b) A firm shall conspicuously display its certificate of authorization at its principal place of practice.

§30-22-22. Exemptions from article.

(a) Nothing in this article shall prohibit any professional engineer, professional surveyor, or forester licensed or registered under the provisions of this code from providing services for which they are licensed or registered.

(b) Nothing in this article shall prohibit any architect licensed or registered under the provisions of this code from performing any of the services included within the definition of the practice of landscape architecture as set forth in subsection (m), section four of this article when incidental to the practice of architecture as defined in article twelve of this chapter.

(c) Nothing in this article shall prohibit a nursery person, agriculturist, horticulturist, gardener, landscape designer, landscape contractor, grader, cultivator of land, garden or lawn caretaker from engaging in the occupation of growing or marketing nursery stock, preparing planting plans, installing plant material, providing drawings or graphic diagrams necessary for the proper layout of goods or materials, or arranging for the installation of goods or materials on private or public land.

(d) Nothing in this article shall prohibit state, county, city or other municipal, urban or regional planners and designers from preparing plans or diagrams necessary to the planning, design and management of communities or regions.

(e) Nothing in this article shall prohibit an individual from making landscape plans, drawings or specifications for property owned, leased or rented by the individual for his or her personal use.

(f) Only licensed landscape architects shall use the title, "Landscape Architect", or other similar words or titles which implies licensure.

§30-22-23. Refusal to issue or renew, suspension or revocation;

disciplinary action.

(a) The board may refuse to issue, refuse to renew, suspend, revoke or limit any license, temporary permit, certificate of authorization or practice privilege and may take disciplinary action against a licensee, permittee or certificate of authorization holder who, after notice and a hearing, has been adjudged by the board as unqualified for any of the following reasons:

(1) Fraud, misrepresentation or deceit in obtaining or maintaining a license, temporary permit or certificate of authorization;

(2) Failure by any licensee, permittee or certificate of authorization holder to maintain compliance with the requirements for the issuance or renewal of a license, temporary permit or certificate of authorization;

(3) Dishonesty, fraud, professional negligence in the performance of landscape architectural services, or a willful departure from the accepted standards of landscape architecture and the professional conduct of landscape architects;

(4) Violation of any provision of this article or any rule promulgated hereunder;

(5) Violation of any professional standard or rule of professional conduct;

(6) Failure to comply with the provisions of this article or any rule promulgated hereunder;

(7) Failure to comply with any order or final decision of the board;

(8) Failure to respond to a request or action of the board;

(9) Conviction of a crime involving moral turpitude;

(10) Conviction of a felony or a crime involving dishonesty or fraud or any similar crime under the laws of the United States, this state or another jurisdiction, if the underlying act or omission involved would have constituted a crime under the laws of this state;

(11) Any conduct adversely affecting the licensee's, permittee's or certificate of authorization holder's fitness to perform landscape architectural services; or

(12) Knowingly using any false or deceptive statements in advertising.

(b) If the board suspends, revokes, refuses to issue, refuses to renew or limits any license, temporary permit, certificate of authorization or practice privilege, the board shall make and enter an order to that effect and give written notice of the order to the person by certified mail, return receipt requested, which order shall include a statement of the charges setting forth the reasons for the action, and notice of the date, time and place of the hearing. If a license, temporary permit, certificate of authorization is ordered suspended or revoked, then the licensee, permittee or certificate of authorization holder shall, within twenty days after receipt of the order, return the license, temporary permit, certificate of authorization to the board. The hearing shall be held in accordance with the provisions of this article.

(c) Disciplinary action includes, but is not limited to, a reprimand, censure, probation, administrative fines, and mandatory attendance at continuing education seminars.

§30-22-24. Complaints; investigations; notice.

(a) The board may, on its own motion, conduct an investigation to determine whether there are any grounds for disciplinary action against a licensee, permittee or certificate of authorization holder. The board shall, upon the verified written complaint of any person, conduct an investigation to determine whether there are any grounds for disciplinary action against a licensee, permittee or certificate of authorization holder.

(b) Upon receipt of a written complaint filed against any licensee, permittee or certificate of authorization holder, the board shall provide a copy of the complaint to the licensee, permittee or certificate of authorization holder.

(c) If the board finds, upon investigation, that probable cause exists that the licensee, permittee or certificate of authorization holder has violated any provision of this article or the rules promulgated hereunder, then the board shall serve the licensee, permittee or certificate of authorization holder with a written statement of charges and a notice specifying the date, time and place of the hearing. The hearing shall be held in accordance with the provisions of this article.

§30-22-25. Hearing and judicial review.

(a) Any person adversely affected by an order entered by the board is entitled to a hearing. A hearing on a statement of the charges shall be held in accordance with the provisions for hearings set forth in article one of this chapter and the procedures specified by the board by rule.

(b) Any licensee, permittee or certificate of authorization holder, adversely affected by any decision of the board entered after a hearing, may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance with article five, chapter twenty-nine-a of this code.

§30-22-26. Injunctions.

(a) When, by reason of an investigation under this article or otherwise, the board or any other interested person believes that a person has violated or is about to violate any provision of this article, any rule promulgated hereunder, any order of the board or any final decision of the board, the board or any other interested person may apply to any court of competent jurisdiction for an injunction against such person enjoining such person from the violation. Upon a showing that the person has engaged in or is about to engage in any prohibited act or practice, an injunction, restraining order or other appropriate order may be granted by the court without bond.

(b) A cause of action by the board may be brought in the circuit court of the county where the cause of action took place.

§30-22-27. Criminal proceedings; penalties.

(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a person has knowingly violated the provisions of this article, the board may bring its information to the attention of the Attorney General or other appropriate law-enforcement officer who may cause appropriate criminal proceedings to be brought.

(b) If a court of law finds that a person knowingly violated any provision of this article, any rule promulgated hereunder, any order of the board or any final decision of the board, then the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 and no more than $1,000 for each violation, imprisoned for up to thirty days for each violation, or both fined and imprisoned.

§30-22-28. Single act evidence of practice.

In any action brought or in any proceeding initiated under this article, evidence of the commission of a single act prohibited by this article is sufficient to justify a penalty, injunction, restraining order or conviction without evidence of a general course of conduct.

§30-22-29.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§30-23-1. License required to practice.

The Legislature finds that in the interest of public health that:

(1) The people of this state should be protected from excessive and improper exposure to ionizing radiation, radioactive isotopes, radio waves, and magnetic fields energy; and

(2) A person performing medical imaging or radiation therapy technology in this state shall be licensed.

Therefore, it is the purpose of this article to regulate the practice of medical imaging or radiation therapy in this state by requiring that a person have a license, apprentice license or permit when practicing medical imaging or radiation therapy technology.

§30-23-2. Unlawful acts.

(a) It is unlawful for any person to practice or offer to practice medical imaging or radiation therapy technology in this state without a license, apprentice license or permit issued under the provisions of this article, or advertise or use any title or description tending to convey the impression that the person is a licensed Medical Imaging Technologist or Radiation Therapy Technologist, unless such person has been duly licensed under the provisions of this article, and such license, apprentice license or permit has not expired, been suspended or revoked.

(b) Without a licensee, it is unlawful for any business entity to render any service or engage in any activity which if rendered or engaged in by an individual, would constitute the practice of medical imaging or radiation therapy technology.

§30-23-3. Applicable law.

The practice of medical imaging or radiation therapy technology and the Medical Imaging and Radiation Therapy Technology Board of Examiners are subject to the provisions of article one of this chapter and the provisions of this article and any rules promulgated thereunder.

§30-23-4. Definitions.

As used in this article, the following words and terms have the following meanings, unless the context clearly indicates otherwise:

(a) "ASPMA" means the American Society of Podiatric Medical Assistants.

(b) "ARMRIT" means the American Registry of Magnetic Resonance Imaging Technologists.

(c) "ARRT" means the American Registry of Radiologic Technologist.

(d) "Board" means the West Virginia Medical Imaging and Radiation Therapy Technology Board of Examiners.

(e) "Business entity" means any firm, partnership, association, company, corporation, limited partnership, limited liability company or other entity providing medical imaging or radiation therapy technology.

(f) "Dental X-rays" means X-rays taken of the oral cavity with x-ray units designed for this specific performance.

(g) "JRCERT" means the Joint Review Committee on Education in Radiologic Technology.

(h) "JRCNMT" means the Joint Review Committee on Education Programs in Nuclear Medicine Technology.

(i) "License" means a medical imaging and radiation therapy technology license issued under the provisions of this article.

(j) "Licensed practitioner" means a person licensed in West Virginia to practice medicine, chiropractic, podiatry, osteopathy or dentistry.

(k) "Licensee" means a person holding a license issued under the provisions of this article.

(l) "Magnetic Resonance Imaging or MRI" means the performance of medical imaging using radio waves, magnetic fields and a computer to produce images of the body tissues.

(m) "Medical Imaging" means the use of ionizing radiation, electromagnetic radiation, or radioactivity for evaluation of body tissue in order to diagnose injury and disease by means of image production.

(n) "NMTCB" means the Nuclear Medicine Technology Certification Board.

(o) "Nuclear Medicine Technologist" means a person holding a nuclear medicine license issued under the provisions of this article.

(p) "Nuclear Medicine Technology" means the compounding, calibrating, dispensing and administrating of radio-pharmaceuticals, pharmaceuticals and radio-nuclides under the direction of an individual listed as an authorized user by the U.S. Nuclear Regulatory Commission for the production of images for diagnosis and/or treatment of various disorders.

(q) "Permittee" means any person holding a podiatric medical assistant permit issued pursuant to the provisions of this article.

(r) "PET/CT Technologist" means an individual recognized by the board as qualified to operate a PET/CT scanner.

(s) "PET/CT Technology" means the operation of a Positron Emission Tomography/Computerized Tomography scanner to view internal images of the body.

(t) "Podiatric medical assistant" means a person who has been issued a permit under the provisions of this article, to perform podiatric radiographs.

(u) "Podiatric radiographs" means radiographs confined to the foot and ankle performed on dedicated podiatric X-ray equipment.

(v) "Practice of Medical Imaging and Radiation Therapy Technology" means the practice of Radiologic Technology, Radiation Therapy, Nuclear Medicine Technology and Magnetic Resonance Imaging Technology.

(w) "Radiologic technologist" means a person, other than a licensed practitioner, who applies medical imaging or assists in the application of ionizing radiation to human beings for diagnostic or therapeutic purposes as prescribed by a licensed practitioner.

(x) "Radiologic technology" means the application of ionizing radiation or assisting in the application of medical imaging to human beings for diagnostic or therapeutic purposes as prescribed by a licensed practitioner.

(y) "Radiologist" means a licensed practitioner who has successfully completed a residency in the field of Radiology and specializes in the use of medical imaging for the diagnosis or treatment of disease.

(z) "Radiologist Assistant or RA" means an individual who is licensed under the rules of the West Virginia Board of Medicine and has completed specialized training from an accredited program in the profession and passed a written examination as recognized by the West Virginia Board of Medicine.

(aa) "Radiology resident" means a licensed practitioner who is in training to become a Radiologist and who uses medical imaging in the diagnosis or treatment of disease, under the supervision of a Radiologist.

(bb) "Supervision" means responsibility for and control of quality, safety and technical aspects in the application of medical imaging technology on human beings for diagnostic or therapeutic purposes.

(cc) "Technology" means Medical Imaging Technology or Radiation Therapy Technology.

§30-23-5. Medical Imaging and Radiation Therapy Technology Board of Examiners.

(a) The West Virginia Medical Imaging and Radiation Therapy Technology Board of Examiners is continued. The members of the board in office, unless sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and qualified.

(b) The board shall consist of the following nine members, appointed by the Governor by and with the advice and consent of the Senate:

(1) Three licensed practitioners, two of whom shall be Radiologists;

(2) Three licensed Radiologic Technologists, one of whom shall be an active medical imaging educator;

(3) One licensed Nuclear Medicine Technologist;

(4) One licensed Magnetic Resonance Imaging; and

(5) One citizen member, who is not licensed under the provisions of this article and does not perform any services related to the practice licensed under the provisions of this article.

(c) Each member shall be appointed for a term of three years and may not serve more than two consecutive full terms. A member having served two consecutive full terms may not be appointed for one year after completion of his or her second full term. A member continues to serve until a successor has been appointed and has qualified. The terms shall be staggered in accordance with the initial appointments under prior enactments of this article.

(d) Each member of the board shall be a resident of West Virginia during the appointment term.

(e) The Radiologic Technologists, Nuclear Medicine Technologists and the Magnetic Resonance Imaging Technologists serving on the board shall maintain an active license with the board.

(f) A vacancy on the board shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant.

(g) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.

(h) A licensed member of the board immediately and automatically forfeits membership to the board if his or her license to practice has been suspended or revoked. A member of the board immediately and automatically forfeits membership to the board if he or she is convicted of a felony under the laws of any state or the United States, or becomes a nonresident of this state.

(i) The board shall designate one of its members as chairperson and one member as secretary who shall serve at the will of the board.

(j) Each member of the board shall receive compensation and expense reimbursement in accordance with article one of this chapter.

(k) A majority of the members serving on the board shall constitute a quorum.

(l) The board shall hold at least two annual meetings. Other meetings shall be held at the call of the chairperson or upon the written request of two members, at such time and place as designated in the call or request.

(m) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state.

§30-23-6. Powers and duties of the board.

(a) The board has all the powers and duties set forth in this article, by rule, in article one of this chapter, and elsewhere in law.

(b) The board shall:

(1) Hold meetings, conduct hearings and administer examinations;

(2) Establish requirements for a license, apprentice license and permit;

(3) Establish procedures for submitting, approving and rejecting applications for a license, apprentice license and permit;

(4) Determine the qualifications of any applicant for a license, permit, certificate and registration;

(5) Provide standards for approved schools of Medical Imaging and Radiation Therapy Technology, procedures for obtaining and maintaining approval, and procedures of revocation of approval where standards are not maintained: Provided, That the standards for approved schools meet at least the minimal requirements of the American Registry of Radiologic Technologist JRCERT, JRCNMT or standards determined programmatically equivalent by the board;

(6) Work with the West Virginia Board of Medicine to determine the scope of practice, the required education and training, and the type of regulations necessary for Radiologist Assistants;

(7) Prepare, conduct, administer and grade written, oral or written and oral examinations for a license, certificate and registration;

(8) Determine the passing grade for the examinations;

(9) Maintain records of the examinations the board or a third party administers, including the number of persons taking the examination and the pass and fail rate;

(10) Maintain an office, and hire, discharge, establish the job requirements and fix the compensation of employees and contract with persons necessary to enforce the provisions of this article;

(11) Investigate alleged violations of the provisions of this article, legislative rules, orders and final decisions of the board;

(12) Conduct disciplinary hearings of persons regulated by the board;

(13) Determine disciplinary action and issue orders;

(14) Institute appropriate legal action for the enforcement of the provisions of this article;

(15) Maintain an accurate registry of names and addresses of all persons regulated by the board;

(16) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;

(17) Establish, by legislative rule, the continuing education requirements for licensees, permittees, certificate holders and registrants; and

(18) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article.

(c) The board may:

(1) Contract with third parties to administer the examinations required under the provisions of this article;

(2) Define, by legislative rule, the fees charged under the provisions of this article;

(3) Issue, renew, deny, suspend, revoke or reinstate a license, permit, certificate and registration;

(4) Sue and be sued in its official name as an agency of this state;

(5) Confer with the Attorney General or his or her assistant in connection with legal matters and questions; and

(6) Take all other actions necessary and proper to effectuate the purposes of this article.

§30-23-6a.

Repealed.

Acts, 2007 Reg. Sess., Ch. 206.

§30-23-6b.

Repealed.

Acts, 2007 Reg. Sess., Ch. 206.

§30-23-7. Rule making.

(a) The board shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this article, including:

(1) Standards and requirements for licensure, apprentice licensure and permits to practice medical imaging or radiation therapy technology;

(2) Procedures for examinations and reexaminations;

(3) Requirements for third parties to prepare and/or administer examinations and reexaminations;

(4) Educational and experience requirements, and the passing grade on the examination;

(5) Standards for approval of courses;

(6) Procedures for the issuance and renewal of a license, apprentice license and permit;

(7) A fee schedule;

(8) Continuing education requirements for licensees;

(9) The procedures for denying, suspending, revoking, reinstating or limiting the practice of a licensee or permittee;

(10) Requirements for inactive or revoked licenses, apprentice licenses and permits; and

(11) Any other rules necessary to effectuate the provisions of this article.

(b) All rules in effect on the effective date of this article shall remain in effect until they are amended or repealed, and references to provisions of former enactments of this act are interpreted to mean provisions of this article.

§30-23-8. Fees; special revenue account; administrative fines.

(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the state Treasury designated the "Board of Examiners of Medical Imaging Technology Fund", which fund is hereby continued. The fund shall be used by the board for the administration of this article. Except as may be provided in article one of this chapter, the board shall retain the amounts in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.

(b) Any amounts received as fines imposed pursuant to this article shall be deposited into the General Revenue Fund of the state Treasury.

§30-23-9. Requirements for Radiologic Technology license.

(a) To be eligible for a license to practice Radiologic Technology, the applicant must:

(1) Be of good moral character;

(2) Have a high school diploma or its equivalent;

(3) Have successfully completed an accredited program in Radiologic technology, as determined by an accreditation body recognized by the board, from a school of Radiologic Technology that has been approved by the board;

(4) Have passed the examination prescribed by the board, which examination shall cover the basic subject matter of Radiologic Technology, skills and techniques; and

(5) Not have been convicted of a felony under the laws of any state or the United States within five years preceding the date of application for licensure, which conviction remains unreversed; and

(6) Not have been convicted of a misdemeanor or a felony under the laws of any state or the United States at any time if the offense for which the applicant was convicted related to the practice of Medical Imaging, which conviction remains unreversed.

(b) A person seeking a Radiologic Technology license shall submit an application on a form prescribed by the board and pay the license fee, which fee shall be returned to the applicant if the license application is denied.

(c) A Radiologic Technology license issued by the board prior to July 1, 2009, shall for all purposes be considered a license issued under this article.

§30-23-10. Scope of Practice for a Radiologic Technologist.

The scope of practice of a Radiologic Technologist includes the following:

(1) Analysis and correlation of procedure requests and clinical information provided by a physician or patient, or both, for preprocedure determination of the appropriate exam, its extent, and its scope;

(2) Evaluation of the physical, mental and emotional status of the patient with respect to the ability to understand the risk versus benefit of the procedure and to undergo the procedure requested;

(3) Selection, preparation, and operation of medical imaging equipment and accessories to perform procedures;

(4) Positioning patient to best demonstrate anatomy of interest, while respecting patient's physical limitations and comfort;

(5) Determination of imaging exposure factors, setting of factors on control panel, and application of medical imaging exposures;

(6) Application of radiation protection principles to minimize radiation exposure to patient, self, and others;

(7) Evaluation of images for technical quality;

(8) Performance of noninterpretive fluoroscopic procedures according to institutional policy;

(9) Oversight of image processing standards and the appropriate labeling of images;

(10) Administering contrast media after consultation with, and under the supervision of, a physician who is immediately and physically available;

(11) Maintaining values congruent with the profession's Code of Ethics and scope of practice as well as adhering to national, institutional and/or departmental standards, policies and procedures regarding delivery of services and patient care; and

(12) Performing any other duties that the board authorizes for a Radiologic Technologist.

§30-23-11. Scope of Practice for a Radiation Therapist.

The scope of practice for a Radiation Therapist includes the following:

(1) Providing Radiation Therapy services by contributing as an essential member of the radiation oncology treatment team through provision of total quality care of each patient undergoing a prescribed course of treatment;

(2) Evaluating and assessing treatment delivery components;

(3) Providing Radiation Therapy treatment delivery services to cure or improve the quality of life of patients by accurately delivering a prescribed course of treatment;

(4) Evaluating and assessing daily, the physical and emotional status of each patient to treatment delivery;

(5) Maintaining values congruent with the profession's Code of Ethics and scope of practice as well as adhering to national, institutional and/or departmental standards, policies and procedures regarding treatment delivery and patient care; and

(6) Performing any other duties that the board authorizes for a Radiation Therapist.

§30-23-12. Exemptions from Radiologic Technology license.

The following persons are not required to obtain a Radiologic Technology license in accordance with the provisions of this article:

(1) A Medical Imaging Technology student enrolled in and attending an approved school of Medical Imaging Technology who as part of his or her course of study applies medical imaging technology to a human being under the supervision of a licensed Medical Imaging Technologist;

(2) A person acting as a dental assistant or dental hygienist who under the supervision of a licensed dentist operates only radiographic dental equipment for the sole purpose of dental radiography of the oral cavity;

(3) A person engaged in performing the duties of a Medical Imaging Technologist in the person's employment by an agency, bureau or division of the government of the United States;

(4) A licensed practitioner, Radiologist or Radiology resident;

(5) A person licensed as a Radiologist Assistant under the West Virginia Board of Medicine; and

(6) A person who demonstrated to the board, prior to July 1, 1999, that he or she:

(A) Had engaged in the practice of Radiologic Technology for the limited purpose of performing bone densitometry in this state for five or more years;

(B) Practiced under the supervision of a licensed practitioner; and

(C) Received a densitometry technologist degree certified by the International Society for Clinical Densitometry.

§30-23-13. Requirements for temporary Medical Imaging and Radiation Therapy Technology license.

(a) The board may issue a temporary Medical Imaging and Radiation Therapy Technology license to engage in the practice of Medical Imaging and Radiation Therapy Technology in this state to an applicant who meets the qualifications for a Medical Imaging and Radiation Therapy Technology license, but has not passed the examination.

(b) Temporary licenses expire as provided by rule.

§30-23-14. Medical Imaging and Radiation Therapy Technology license from another state; license to practice in this state.

The board may issue a license to practice Medical Imaging and Radiation Therapy Technology in this state, without requiring an examination, to an applicant from another jurisdiction who:

(1) Is not a resident of this state;

(2) Is of good moral character:

(3) Holds a valid Medical Imaging and Radiation Therapy Technology license, certificate or other authorization, including the American Registry of Radiologic Technologists, or Nuclear Medicine Technology Certification Board or equivalent to practice Medical Imaging and Radiation Therapy Technology in another jurisdiction and meets requirements which are substantially equivalent to the Medical Imaging and Radiation Therapy Technology licensure requirements set forth in this article;

(4) Is not currently being investigated by a disciplinary authority of this state or another jurisdiction, does not have charges pending against his or her license or other authorization to practice Medical Imaging and Radiation Therapy Technology, and has never had a license or other authorization to practice Medical Imaging and Radiation Therapy Technology revoked;

(5) Has not previously failed an examination for licensure in this state;

(6) Has paid all the applicable fees; and

(7) Has completed other action as required by the board.

§30-23-15. Requirements for Nuclear Medicine Technologist license

(a) To be eligible for a license to practice Nuclear Medicine Technology, the applicant must:

(1) Be of good moral character;

(2) Have a high school diploma or its equivalent;

(3) Not have been convicted of a felony under the laws of any state or the United States within five years preceding the date of application for licensure, which conviction remains unreversed;

(4) Not have been convicted of a misdemeanor or a felony under the laws of any state or the United States at any time if the offense for which the applicant was convicted related to the practice of Medical Imaging, which conviction remains unreversed.

(5) Meet one of the following qualifications:

(A) Have a baccalaureate or associate degree in one of the physical or biological sciences pertaining to the Medical Imaging or Radiation Therapy profession;

(B) Have a baccalaureate or associate degree in other disciplines of Medical Imaging with successful completion of courses in the following areas: college algebra, physics or chemistry, human anatomy, physiology, and radiation safety;

(C) National certification as a certified Nuclear Medicine Technologist (CNMT);

(D) National certification as a Registered Radiographer (ARRT (R));

(E) National certification as a Registered Radiographer specializing in Nuclear Medicine (ARRT (N)); or

(F) National certification as a Radiation Therapist (ARRT (T)); and

(6) Pass an examination which has been approved by the board, with a minimum passing score of seventy-five percent, which examination shall cover the basic subject matter of medical imaging, radiation safety, skills and techniques as it pertains to Nuclear Medicine.

(b) A person seeking a Nuclear Medicine Technology license shall submit an application on a form prescribed by the board and pay the license fee, which fee shall be returned to the applicant if the license application is denied.

(c) A Nuclear Medicine Technology license issued by the board prior to July 1, 2007, shall for all purposes be considered a license issued under this article: Provided, That a person holding a Nuclear Medicine Technology license issued prior to July 1, 2007, must renew the license pursuant to the provisions of this article.

§30-23-16. Scope of practice for Nuclear Medicine Technologist.

The scope of practice for Nuclear Medicine Technology includes the following:

(1) The practice of diagnostic in-vivo procedures and in-vitro procedures which include:

(A) Analysis and correlation of procedure request and clinical information provided by the referring physician or patient, or both, for determination of appropriate exam, extent, and scope;

(B) Evaluation of the physical and emotional status of the patient with respect to the ability to undergo the procedure requested;

(C) Immediate predose review of patient's identification, prescribed dose quantity and route of administration, and identification of the test agent designed to prevent dose mis-administration;

(D) Preparation of the appropriate radiopharmaceutical with measurement of dose activity;

(E) Administration of appropriate diagnostic dose levels of radiopharmaceuticals;

(F) Administration of nonradioactive pharmaceuticals utilized in conjunction with a nuclear medicine imaging or in-vivo procedure, for example, cholecystokinin, furosemide, vitamin B12, in accordance with hospital or facility procedures, excluding narcotic and sedating medication;

(G) Selection of appropriate imaging or test parameters, or both;

(H) Obtaining images according to established protocols and any special views to optimize information as appropriate;

(I) Placement of patient in proper position using supportive materials and immobilizer as necessary;

(J) Assuring appropriate image labeling as to patient;

(K) Monitoring of patient and equipment during procedure for determination and application of any corrective actions necessary;

(L) Monitoring of data collection and processing and performance of technical analysis of test results;

(M) Preparation and performance of laboratory in-vivo nuclear medicine procedures, inclusive of the selection and operation of laboratory counting equipment, performance of calculations and data processing necessary for completion of lab procedures and the submission of results to the physician or licensee;

(N) Oversight and application of image development; and

(O) Performance of in-vitro testing of serum, plasma, or other body fluids using radio immunoassay, or similar ligand assay methods.

(2) The practice for handling radiopharmaceuticals which includes:

(A) Preparation, by means of tagging, compounding, etc., in accordance with manufacturer's specifications;

(B) Measurement and calculation of activity of radionuclides with a dose calibrator;

(C) Application of radioactive decay calculations to determine required volume or unit form necessary to deliver the prescribed radioactive dose; and

(D) Recording of radiopharmaceutical information on a patient's permanent record.

(3) The practice for radionuclide therapy which includes:

(A) Assisting licensee in the preparation and applications of therapeutic radionuclides;

(B) Oversight of radiation safety practices related to the handling and administration of radiopharmaceuticals for therapy of patients;

(C) Maintenance of records of radioactive material receipt, use, storage, and disposal in accordance with regulatory requirements;

(D) Oversight and enforcement of radiation safety policies, practices, and regulations regarding the possession and use of radioactive materials;

(E) Performance of radiation safety procedures such as radiation survey and wipe testing of incoming radioactive shipments and facility fixtures;

(F) Maintaining values congruent with the profession's code of ethics and scope of practice as well as adhering to national, institutional and/or departmental standards, policies and procedures regarding delivery of services and patient care; and

(G) Performing any other duties that the board determines may be performed by a Nuclear Medicine Technologist.

(4) The scope of practice for a Nuclear Medicine Technologist or certified PET Technologist to operate a multimodality device, i.e. PET/CT, SPECT/CT etc, requires that:

(A) A Nuclear Medicine Technologist, (ARRT(N) or NMTCB) or certified PET Technologist may administer radiopharmaceuticals and/or ionizing radiation from an integrated multimodality device, if the ionizing radiation is produced for the sole purpose of attenuation correction and considered an essential component of the procedure, provided the licensee has obtained proper documented training that has been approved by the board in the radiation safety aspect of the operation of these units; and

(B) A licensed radiographer, (ARRT(R)), or Nuclear Medicine Technologist with an additional certification by the ARRT or other nationally recognized certifying body in computed tomography, shall operate the computed tomography scanner if it is used for any other diagnostic radiographic procedures.

§30-23-17. Requirements for Magnetic Resonance Imaging Technologist license.

(a) To be eligible for a license to practice Magnetic Resonance Imaging Technology, the applicant must:

(1) Be of good moral character;

(2) Have a high school diploma or its equivalent;

(3) Not have been convicted of a felony under the laws of any state or the United States within five years preceding the date of application for licensure, which conviction remains unreversed;

(4) Not have been convicted of a misdemeanor or a felony under the laws of any state or the United States at any time if the offense for which the applicant was convicted related to the practice of Medical Imaging, which conviction remains unreversed.

(5) Meet one of the following qualifications:

(A) Have a baccalaureate or associate degree in one of the physical or biological sciences pertaining to the Medical Imaging or Radiation Therapy profession;

(B) Have a baccalaureate or associate degree in other disciplines of Medical Imaging with successful completion of courses in the following areas: college algebra, physics or chemistry, human anatomy, physiology, and radiation safety;

(C) National certification as a certified Nuclear Medicine Technologist (CNMT);

(D) National certification as a Registered Radiographer (ARRT (R));

(E) National certification as a Registered Radiographer specializing in Nuclear Medicine (ARRT (N));

(F) National certification as a Radiation Therapist (ARRT(T); or

(G) National certification as an MRI technologist (ARRT (MR) or ARMRIT); and

(6) Pass an examination which has been approved by the board, with a minimum passing score of seventy-five percent, which examination shall cover the basic subject matter of Medical Imaging, radiation safety, skills and techniques as it pertains to Magnetic Resonance Imaging.

(b) A person seeking a Magnetic Resonance Imaging Technology license shall submit an application on a form prescribed by the board and pay the license fee, which fee shall be returned to the applicant if the license application is denied.

(c) A Magnetic Resonance Imaging Technology license issued by the board prior to July 1, 2007, shall for all purposes be considered a license issued under this article: Provided, That a person holding a Magnetic Resonance Imaging Technology license issued prior to July 1, 2007, must renew the license pursuant to the provisions of this article.

§30-23-18. Scope of Practice for Magnetic Resonance Imaging Technologist.

The scope of practice for Magnetic Resonance Imaging Technology includes the following:

(1) Make arrangements with other departments for ancillary patient services (e.g. transportation, anesthesia);

(2) Orient patient and family to requirements necessary for the exam and instruct patient regarding preparation prior to imaging procedures;

(3) Assist with scheduling patients and coordinating exams to assure smooth work flow and review patient's chart to verify physician's orders;

(4) Assist patient on and off the scanning table and maintain communication and provide reassurance to patient throughout scanning procedure;

(5) Obtain patient's medical history prior to scan and observe patient's vital signs, O2 saturation, patient's level of consciousness during scanning procedure, and observe patient's physical status prior to discharge from the scanning procedure;

(6) Maintain controlled access to restricted area of strong magnetic field to ensure safety of patients, visitors, and hospital personnel and screen patient for ferrous and RF-sensitive material prior to entrance into magnetic field;

(7) Evacuate patient in emergency situation (e.g., quench, code, metallic object);

(8) Provide hearing protection to patient and others;

(9) Inspect equipment to make sure it is operable and safe (e.g., coils, cables, door seals), perform document and interpret the results of daily QC tests (center frequency, signal to noise, image quality and artifacts);

(10) Monitor specific absorption rate (SAR) and cryogen levels;

(11) Position patient according to type of study indicated and enter patient's data needed to initiate scan;

(12) Explain the risks of contrast media injections, obtain signed consent form, determine appropriate dose required, program or activate the power injector and administer the contrast media;

(13) Select all parameters needed to obtain a highly diagnostic image;

(14) Archive images to or retrieve images from data storage devices;

(15) Evaluate quality of filmed images and reformat images;

(16) Perform automatic or manual frequency tuning;

(17) Differentiate between normal and abnormal images to assess completion of procedure;

(18) Monitor image production and discriminate between technically acceptable and unacceptable images;

(19) Maintaining values congruent with the profession's code of ethics and scope of practice as well as adhering to national, institutional and/or departmental standards, policies and procedures regarding delivery of services and patient care; and

(20) Perform any other duties that the board authorizes.

§30-23-19. Requirements for an apprentice license for Nuclear Medicine Technologists and Magnetic Resonance Imaging Technologists.

(a) The board may issue an apprentice license to an individual who is practicing as a Nuclear Medicine Technologist or a Magnetic Resonance Imaging Technologist prior to July 1, 2007 but has not obtained certification in the discipline. A notarized letter, signed by the individual's supervising licensed physician, must be submitted with the individual's application, stating that the individual has performed the duties of a Nuclear Medicine Technologist or Magnetic Resonance Imaging Technologist prior to July 1, 2007.

(b) The apprentice license is valid for one year. An apprentice license may be renewed annually for an additional four years, giving the individual a total of five years to complete the requirements and successfully pass the certification examination for a Nuclear Medicine Technologist license or a Magnetic Resonance Imaging Technologist license. All individuals possessing an apprentice license must work under the supervision of a licensed practitioner for MRI, an authorized user for nuclear medicine or a technologist who is licensed in that discipline.

(c) Any individual possessing a valid Medical Imaging license issued by the board and seeks to cross-train in the discipline of Nuclear Medicine Technology or Magnetic Resonance Imaging Technology, may obtain an apprentice license in that discipline for the purpose of obtaining the necessary clinical experience requirements in order to qualify to sit for the required examination. This apprentice license will be valid for one year and renewable for four years, giving a cross-trained individual five years to obtain certification in the discipline.

§30-23-20. Requirements for Podiatric Medical Assistant permit.

(a) To be eligible for a Podiatric Medical Assistant permit to perform podiatric radiographs, the applicant must:

(1) Be of good moral character;

(2) Have a high school diploma or its equivalent;

(3) Pass a written examination for certification from the American Society of Podiatric Medical Assistants (ASPMA);

(4) Maintain an active certification in the American Society of Podiatric Medical Assistants (ASPMA) and meet all requirements of that organization including the continuing education requirements;

(5) Not have been convicted of a felony under the laws of any state or the United States within five years preceding the date of application for licensure, which conviction remains unreversed; and

(6) Not have been convicted of a misdemeanor or felony under the laws of any state or the United States at any time if the offense for which the applicant was convicted related to the practice of Radiologic Technology, which conviction remains unreversed.

(b) A person seeking a Podiatric Medical Assistant permit shall submit an application on a form prescribed by the board and pay the permit fee, which fee shall be returned to the applicant if the permit application is denied.

Upon application for renewal, the permittee shall submit documentation of an active certification in ASPMA and payment of a renewal fee.

(c) A Podiatric Medical Assistant permit issued by the board prior to July 1, 2007, shall for all purposes be considered a permit issued under this article: Provided, That a person holding a Podiatric Medical Assistant permit issued prior to July 1, 2007, must renew the permit pursuant to the provisions of this article.

§30-23-21. Scope of practice for Podiatric Medical Assistants.

The scope of practice for a Podiatric Medical Assistant includes the following:

(a) The use of equipment specifically designed for the performance of foot or ankle podiatric radiographs, as approved by the board; and

(b) Performed under the supervision of a licensed Podiatrist.

§30-23-22. License and permit renewal requirements.