Bill Text: WV HB4621 | 2022 | Regular Session | Introduced


Bill Title: Relating to scope of practice

Spectrum: Partisan Bill (Republican 5-0)

Status: (Introduced - Dead) 2022-02-09 - To House Government Organization [HB4621 Detail]

Download: West_Virginia-2022-HB4621-Introduced.html

WEST virginia legislature

2022 regular session

Originating

House Bill 4621

By Delegates Rohrbach, D. Jeffries, Summers, Criss and Longanacre

[Originating in the Committee on Health and Human Resources; Reported on February 8, 2022]

A BILL to repeal §30-4-9 and §30-4-11, of the Code of West Virginia, 1931, as amended; to repeal §30-3E-10a, §30-3E-11, and §30-3E-12 of said code; to repeal §30-4-9 and §30-4-11 of said code; to repeal §30-5-10 and §30-5-12 of said code; to repeal §30-7-15, §30-7-15a, §30-7-15b, §30-7-15c and §30-7-15e of said code; to repeal §30-8-9, §30-8-14 and §30-8-15 of said code; to repeal §30-10-9 and §30-10-11 of said code; to repeal §30-16-18 of said code; to repeal §30-20-9 of said code; to repeal §30-20A-5 of said code; to repeal §30-23-10, §30-23-11, §30-23-16, §30-23-18 and §30-23-21 of said code; to repeal §30-30-11, §30-30-13 and §30-30-15 of said code; to repeal §30-32-13 and §30-32-14 of said code; to repeal §30-36-13 of said code; to amend said code by adding thereto a new section, designated §30-1-27; to amend and reenact §30-1A-2 and §30-1A-3 of said code; to amend and reenact §30-8-6 and §30-8-14 of said code; to amend and reenact §30-28-4 of said code; and to amend and reenact §30-34-2 of said code; all relating to scope of practice.

Be it enacted by the Legislature of West Virginia:


ARTICLE 1. GENERAL PROVISIONS APPLICABLE TO ALL STATE BOARDS OF EXAMINATION OR REGISTRATION REFERRED TO IN CHAPTER.

§30-1-27. Scope of practice.

(a) For the purposes of this section:

“Health care practitioner” means a person authorized to practice under §30-3E-1 et seq., §30-4-1 et seq., §30-5-1 et seq., §30-7-1 et seq., §30-7A-1 et seq., §30-8-1 et seq., §30-10-1 et seq., §30-16-1 et seq., §30-20-1 et seq., §30-20A-1 et seq., §30-21-1 et seq., §30-23-1 et seq., §30-26-1 et seq., §30-28-1 et seq., §30-30-1 et seq., §30-31-1 et seq., §30-32-1 et seq., §30-34-1 et seq., §30-35-1 et seq., §30-36-1 et seq., §30-37-1 et seq.

(b) Notwithstanding any provision in this chapter to the contrary, a health care practitioner, is authorized to practice his or her profession to the full extent of his or her education and training.

(c) A health care practitioner's board may not adopt a legislative rule or policy defining a health care practitioner's scope of practice.  

(d) A health care practitioner is subject to discipline by his or her board for practicing outside of his or her education or training.  The burden of proof is placed upon the health care practitioner to prove to the board he or she is properly educated or trained.


ARTICLE 1A. PROCEDURE FOR REGULATION OF OCCUPATIONS AND PROFESSIONS.

§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-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) (4) 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.

ARTICLE 8. OPTOMETRISTS.


§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) (9) Continuing education requirements for licensees;

(12) (10) The procedures for denying, suspending, revoking, reinstating or limiting the practice of licensees, certificate holders and permittees;

(13) (11) Requirements for inactive or revoked licenses, certificates or permits; and

(14) Requirements for an expanded scope of practice for those procedures that are taught at fifty percent of all accredited optometry schools; and

(15) (12) 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.


§30-8-14. 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.

An optometrist may:

(A) Not prescribe a Schedule I.

(B) Prescribe a 3 day supply of a Schedule II narcotic;

There are no other limitations on an optometrist's prescribing authority, except as provided in §16-54-1 et seq.

ARTICLE 28. WEST VIRGINIA OCCUPATIONAL THERAPY PRACTICE ACT.


§30-28-4. Scope of practice; license and supervision requirements.

(a) The scope of practice of occupational therapy includes, but is not limited to:

(1) Methods or strategies selected to direct the process of interventions such as:

(A) Establishment, remediation, or restoration of a skill or ability that has not yet developed or is impaired;

(B) Compensation, modification, or adaptation of activity or environment to enhance performance;

(C) Maintenance and enhancement of capabilities without which performance in everyday life activities would decline;

(D) Health promotion and wellness to enable or enhance performance in everyday life activities; and

(E) Prevention of barriers to performance, including disability prevention.

(2) Evaluation of factors affecting activities of daily living (ADL), instrumental activities of daily living (IADL), education, work, play, leisure and social participation, including:

(A) Client factors, including body functions and body structures;

(B) Habits, routines, roles and behavior patterns;

(C) Cultural, physical, environmental, social and spiritual contexts and activity that affect performance; and

(D) Performance skills, including motor, process and communication/interaction skills.

(3) Interventions and procedures to promote or enhance safety and performance in activities of daily living (ADL), instrumental activities of daily living (IADL), education, work, play, leisure and social participation, including:

(A) Therapeutic use of occupations and preparatory, adjunctive and functional activities;

(B) Training in self-care, self-management home management and community/work reintegration;

(C) Development, remediation, or compensation of physical, cognitive, neuromuscular, sensory functions, visual, vestibular and behavioral skills;

(D) Therapeutic use of self, including one’s personality, insights, perceptions and judgments, as part of the therapeutic process;

(E) Education and training of individuals, including family members, care givers and others;

(F) Care coordination, case management and transition services;

(G) Consultative services to groups, programs, organizations or communities;

(H) Modification of environments (home, work, school or community) and adaptation of processes, including the application of ergonomic principles;

(I) Assessment, design, fabrication, application, fitting and training in assistive technology, adaptive devices, orthotic devices and training in the use of prosthetic devices to enhance occupational performance;

(J) Assessment, recommendation and training in techniques to enhance functional mobility, including wheelchair management;

(K) Community mobility and reentry;

(L) Management of feeding, eating and swallowing to enable eating and feeding performance; and

(M) Application of physical agent modalities, and use of a range of specific therapeutic procedures and techniques to enhance occupational performance skills. Use of physical agent modalities by occupational therapy assistants must be consistent with their education (e.g. superficial thermal and mechanical modalities) and used under the general supervision of an occupational therapist. The use of deep thermal or electrical modalities may only be performed by the occupational therapy assistant under the direct supervision of an occupational therapist, until the board shall promulgate rules as well as establish competency standards for the use of the modalities.

(b) No person may engage in the practice of occupational therapy or present herself or himself or herself as an occupational therapist or occupational therapy assistant in this state, or use the words "occupational therapist," "licensed occupational therapist," "occupational therapist registered," "occupational therapy assistant," "licensed occupational therapy assistant," "certified occupational therapy assistant," or "occupational therapy aide," or the letters "O.T.," "L.O.T.," "O.T.R.," "O.T.A.," "L.O.T.A.," "C.O.T.A.," or any other words, letters, abbreviations or insignia indicating or implying that he or she is an occupational therapist or occupational therapy assistant, unless he or she holds a valid, current license issued in accordance with the provisions of this article, which has not expired, been suspended or revoked.

(c) (b) No business entity may advertise or otherwise offer to provide or convey the impression that it is providing occupational therapy unless an individual holding a current valid license or permit under this article renders the occupational therapy services to which reference is made.

(d) An occupational therapy assistant may assist in the practice of occupational therapy under the general supervision of an occupational therapist.

(e) An occupational therapist or an occupational therapy assistant may delegate nonclient-related tasks to an occupational therapy aide only under the following conditions:

(1) The occupational therapy aide functions under the general supervision of either the occupational therapist or the occupational therapy assistant who is under the general supervision of the occupational therapist; and

(2) The occupational therapy aide provides only tasks for which he or she has been trained and has demonstrated competence.

(f) An occupation therapist or an occupational therapy assistant may delegate specifically selected client-related tasks to an occupational therapy aide only under the following conditions:

(1) The occupational therapy aide functions under the direct continuous supervision of either the occupational therapist or the occupational therapy assistant that is under the general supervision of the occupational therapist;

(2) The occupational therapy aide provides only tasks for which he or she has been trained and has demonstrated competence;

(3) The outcome anticipated for the delegated task is predictable;

(4) The client and the environment are stable and will not require judgment, interpretation or adaptation by the occupational therapy aide; and

(5) The supervising occupational therapist is responsible for the tasks delegated to the occupational therapy aide.

ARTICLE 34. BOARD OF RESPIRATORY CARE PRACTITIONERS.


§30-34-2. Definitions.

(a) "Board" means the West Virginia board for respiratory care;

(b) "Formal training" means a supervised, structured educational activity that includes preclinical didactic and laboratory activities and clinical activities. The training must be approved by an accrediting agency recognized by the board. It shall include an evaluation of competence through standardized testing mechanisms that the board determines to be both valid and reliable;

(c) "Graduate respiratory care therapist" means an individual who has graduated from a respiratory therapist educational program and is scheduled to take the next available examination administered by the state or a national organization approved by the board;

(d) "Practice of respiratory care" means the practice of respiratory care, and any part of respiratory care, by persons licensed under the provisions of this article and is limited to that which has been learned through formal or special training including performance evaluation to evaluate competence. The practice of respiratory care may be performed in any clinic, hospital, skilled nursing facility, private dwelling or other place considered appropriate or necessary by the board in accordance with the prescription or verbal orders of a licensed physician or other legally authorized person with prescriptive authority, or under the direction of a qualified medical director. Practice of respiratory care includes, but is not limited to:

(1) The administration of pharmacological, diagnostic and therapeutic agents related to respiratory care procedures necessary to implement a treatment, disease prevention, pulmonary rehabilitative or diagnostic regimen prescribed by a physician;

(2) Transcription and implementation of written or verbal orders of a physician or other legally authorized person with prescriptive authority, pertaining to the practice of respiratory care;

(3) Observing and monitoring signs and symptoms, general behavior, general physical response to respiratory care treatment and diagnostic testing, including determination of whether such signs, symptoms, reactions, behavior or general response exhibit abnormal characteristics;

(4) Based on observed abnormalities, appropriate reporting, referral or implementation of respiratory care protocols or changes in treatment pursuant to the written or verbal orders of a person with prescriptive authority under the laws of the State of West Virginia; or

(5) The initiation of emergency procedures under the rules of the board or as otherwise permitted in this article;

(e) "Qualified medical director" means the medical director of any inpatient or outpatient respiratory care service, department or home care agency. The medical director shall be a licensed physician who is knowledgeable in the diagnosis and treatment of respiratory problems. This physician shall be responsible for the quality, safety and appropriateness of the respiratory services provided and require that respiratory care be ordered by a physician, or other legally authorized person with prescriptive authority, who has medical responsibility for the patient. The medical director shall be readily accessible to the respiratory care practitioners and assure their competency;

(f) "Respiratory care" means the allied health profession responsible for the direct and indirect services in the treatment, management, diagnostic testing and care of patients with deficiencies and abnormalities associated with the cardiopulmonary system, under a qualified medical director. Respiratory care includes inhalation therapy and respiratory therapy;

(g) "Respiratory care education program" means a course of study leading to eligibility for licensure, registry or certification in respiratory care and the program is approved by the board;

(h) "Respiratory therapist" means an individual who has successfully completed an accredited training program, and who has successfully completed a certification or registry examination for respiratory therapists administered by the state or a national organization approved by the board and who is licensed by the board as a licensed respiratory therapist;

(i) "Student respiratory care therapist" means an individual enrolled in a respiratory educational program and whose sponsoring educational institution assumes responsibility for the supervision of, and the services rendered by, the student respiratory care practitioner while he or she is functioning in a clinical training capacity.

 

NOTE: The purpose of this bill is to permit health care practitioner to practice his or her profession to the extent of his or her education and training.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

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