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.