W. Va. Code R. § 11-1A-12

Current through Register Vol. XLI, No. 25, June 21, 2024

Section 11-1A-12 - Causes for Denial, Probation, Limitation, Discipline, Suspension or Revocation of Licenses and Other Professional Credentials

12.1. The Board may deny an application for a license, place a licensee or credential holder on probation, suspend a license or credential, limit or restrict a license or credential or revoke any license or credential upon satisfactory proof that the licensee or credential holder has:

12.1.a. Knowingly made, or presented or caused to be made or presented, any false, fraudulent or forged statement, writing, certificate, diploma or other material in connection with an application for a license or other credential;

12.1.b. Been or is involved in fraud, forgery, deception, collusion or conspiracy in connection with an examination for a license;

12.1.c. Become addicted to a controlled substance;

12.1.d. Become a chronic or persistent alcoholic;

12.1.e. Engaged in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public or any member thereof;

12.1.f. Willfully violated a confidential communication;

12.1.g. Had his or her license to practice medicine or podiatric medicine in any other state, territory, jurisdiction or foreign nation revoked, suspended, restricted or limited, or otherwise acted against, or has been subjected to any other disciplinary action by the licensing authority thereof, or has been denied licensure in any other state, territory, jurisdiction, or foreign nation.

12.1.h. Been or is unable to practice medicine or podiatric medicine with reasonable skill and safety to patients by reason of illness, drunkenness, excessive use of alcohol, drugs, chemicals or any other type of material, or by reason of any physical or mental abnormality;

12.1.i. Demonstrated a lack of professional competence to practice medicine or podiatric medicine with a reasonable degree of skill and safety for patients. In this connection, the Board may consider repeated acts of a physician or podiatric physician indicating his or her failure to properly treat a patient and may require the physician or podiatric physician to submit to inquiries or examinations, written or oral, by members of the Board, or by other physicians or podiatric physicians to practice medicine or podiatric medicine in this State, as the Board considers necessary to determine the professional qualifications of the licensee or credential holder;

12.1.j. Engaged in unprofessional conduct, including, but not limited to, any departure from, or failure to conform to, the standards of acceptable and prevailing medical or podiatric practice, or the ethics of the medical or podiatric profession, irrespective of whether or not a patient is injured thereby, or has committed any act contrary to honesty, justice or good morals, whether the same is committed in the course of his or her practice or otherwise and whether committed within or without this State;

12.1.k. Been convicted of or found guilty of a crime in any jurisdiction which directly relates to the practice of medicine or podiatric medicine or to the ability to practice medicine or podiatric medicine. Any plea of nolo contendere shall be considered conviction for purposes of this rule;

12.1.l. Advertised, practiced or attempted to practice under a name other than his or her own;

12.1.m. Failed to report to the Board any person whom the licensee or credential holder knows is in violation of this rule, other rules of the Board, or of provisions of the West Virginia Medical Practice Act or the West Virginia Physician Assistants Practice Act;

12.1.n. Aided, assisted, procured or advised any person to practice medicine or podiatry without a license or other practice credential or in a manner that is otherwise contrary to this rule, the West Virginia Medical Practice Act or the West Virginia Physician Assistants Practice Act;

12.1.o. Failed to perform any statutory or legal obligation placed upon a licensed or credentialed physician, podiatric physician or physician assistant;

12.1.p. Made or filed a report which the licensee or credential holder knows to be false; intentionally or negligently failed to file a report or record required by state or federal law, willfully impeded or obstructed such filing or induced another person to do so. The reports or records shall include only those which are signed in the capacity as a licensed or credentialed physician, podiatric physician or physician assistant.

12.1.q. Paid or received any commission, bonus, kickback or rebate, or engaged in any split-fee arrangement in any form whatsoever with a physician, podiatric physician, -other practitioner, _organization, agency or person, either directly or indirectly, for patients referred to providers of health care goods and services, including, but not limited to, hospitals, nursing homes, clinical laboratories, ambulatory surgical centers or pharmacies. The provisions of this subdivision shall not be construed to prevent a physician or podiatric physician from receiving a fee for professional consultation services;

12.1.r. Exercised influence within a provider-patient relationship for purposes of engaging a patient in sexual activity, engaged in sexual activity with a patient, sexually harassed or exploited a patient, or otherwise violated the professional conduct standards set forth in the Board's legislative rule prohibiting practitioner sexual misconduct, W. Va. Code R. § 11-16-1et. seq.;

12.1.s. Made deceptive, untrue or fraudulent representations in the practice of medicine or podiatric medicine and surgery or employed a trick or scheme in the practice of medicine or podiatric medicine and surgery when the trick or scheme fails to conform to the generally prevailing standards of treatment in the medical or podiatric community;

12.1.t. Solicited patients, either personally or through an agent, through the use of fraud, intimidation, undue influence, or by overreaching or vexatious conduct. A solicitation is any communication which directly or implicitly requests an immediate response from the recipient;

12.1.u. Failed to keep written records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results and test results and treatment rendered, if any;

12.1.v. Exercised influence on the patient or client in such a manner as to exploit the patient or client for the financial gain of the licensee or credential holder, or of a third party, which shall include, but not be limited to, the promoting or selling of services, goods, appliances or drugs and the promoting or advertising on any prescription form of a community pharmacy. For the purposes of this subdivision, it is legally presumed that prescribing, dispensing, administering, mixing or otherwise preparing legend drugs, including all controlled substances, inappropriately or in excessive or inappropriate quantities, is not in the best interests of the patient and is not in the course of the physician's or podiatric physician's professional practice, without regard to his or her intent;

12.1.w. Prescribed, dispensed or administered any medicinal drug appearing on any schedule set forth in W. Va. Code § 60A-1-1 et. seq. by the physician or podiatric physician to himself or herself, except one prescribed, dispensed or administered to the physician or podiatric physician by another practitioner authorized to prescribe, dispense or administer medicinal drugs;

12.1.x. Engaged in malpractice or failed to practice medicine or podiatric medicine with that level of care, skill and treatment which is recognized by a reasonable, prudent, physician or podiatric physician engaged in the same or a similar specialty as being acceptable under similar conditions and circumstances;

12.1.y. Performed any procedure or prescribed any therapy which, by the prevailing standards of medical or podiatric practice in the community, would constitute experimentation on a human subject, without first obtaining full, informed and written consent from the patient;

12.1.z. Practiced or offered to practice medicine and surgery or podiatric medicine and surgery beyond the scope permitted by law or accepted and performed professional responsibilities which the licensee or credential holder knows or has reason to know he or she is not competent to perform;

12.1.aa. Delegated professional responsibilities to a person whom the licensee or credential holder knew or had reason to know is not qualified by training, experience or professional credential to perform the responsibilities;

12.1.bb. Violated or attempted to violate any law or lawfully promulgated rule or regulation of this State, any other state, the Board, the United States or any other lawful authority (without regard to whether the violation is criminally punishable), which law or rule or regulation relates to or in part regulates the practice of medicine or podiatric medicine and surgery, when the licensee, credential holder or applicant knows or should know that such action is violative of the law, rule or regulation; or has violated a lawful order of the Board; or has failed to comply with a lawfully issued subpoena of the Board; or has violated an order of any court entered pursuant to any proceedings commenced by the Board;

12.1.cc. Pre-signed blank prescription forms;

12.1.dd. Prescribed any medicinal drug appearing on Schedule II in W. Va. Code § 60A-1-1et. seq. for office use;

12.1.ee. Prescribed, ordered, dispensed, administered, supplied, sold or given any drug which is an amphetamine or sympathomimetic amine drug and a compound designated as a Schedule II controlled substance under W. Va. Code § 60A-1-1et. seq. to or for any person except for:

12.1.ee.A. The treatment of narcolepsy; binge eating disorder, attention deficit disorder, a behavioral syndrome characterized by inappropriate symptoms of moderate to severe distractibility, short attention span, hyperactivity, emotional lability and impulsivity; or drug-induced brain dysfunction;

12.1.ee.B. The differential diagnostic psychiatric evaluation of depression or the treatment of depression or the treatment of depression shown to be refractory to other therapeutic modalities; or

12.1.ee.C. The clinical investigation of the effects of such drugs or compounds when an investigative protocol therefore is submitted to, reviewed and approved by the Board before such investigation is begun;

12.1.ff. Knowingly maintained a professional connection or association with any person who is in violation of the West Virginia Medical Practice Act or the rules of the Board; or has knowingly aided, assisted, procured or advised any person to practice medicine or podiatry contrary to the West Virginia Medical Practice Act or to the Rules of the Board; or knowingly performed any act which in any way aids, assists, procures, advises or encourages any unlicensed and uncredentialed person or entity to practice medicine or podiatry; or has divided fees or agreed to divide fees received for professional services with any person, firm, association, corporation or other entity for bringing or referring a patient; or has engaged in the practice of medicine or podiatry as an officer or employee of any corporation other than one organized and existing pursuant to the West Virginia Medical Practice Act, except as a licensed or credentialed physician, podiatric physician or physician assistant, intern or resident of a hospital or teaching institution licensed by this State;

12.1.gg. Offered, undertaken or agreed to cure or treat disease by a secret method, procedure, treatment or medicine; or has treated, operated or prescribed for any human condition, by a method, means, or procedure which the licensee or credential holder has refused to divulge upon demand of the Board.

12.1.hh. Engaged in false or deceptive advertising.

12.1.ii. Engaged in advertising that is not in the public interest. Advertising that is not in the public interest includes the following, with the exceptions specifically listed:

12.1.ii.A. Advertising that has the effect of intimidating or exerting undue pressure;

12.1.ii.B. Advertising which is false, deceptive, misleading, sensational or flamboyant;

12.1.ii.C. Advertising which guarantees satisfaction or a cure;

12.1.ii.D. Advertising which offers gratuitous services or discounts, the purpose of which is to deceive the public. This subdivision does not apply to advertising which contains an offer to negotiate fees, nor to advertising in conjunction with an established policy or program of free care for patients; and

12.1.ii.E. Advertising which makes claims of professional superiority which a licensee or credential holder is unable to substantiate.

12.1.jj. Failure to maintain a medical record for each patient which is adequate to enable the physician or podiatric physician to provide proper diagnosis and treatment, and/or to keep such patient medical records for a minimum of three years from the date of the last patient encounter and in a manner which permits the former patient or a successor practitioner access to them within the terms of this rule and as set forth in W. Va. Code § 16-29-1et seq.

12.1.kk Practicing clinical medicine and surgery pursuant to an administrative medicine license.

12.2. Acts declared to constitute dishonorable, unethical or unprofessional conduct: As used in this rule at subdivision 12.1.e, "Dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public or any member thereof" includes, but is not limited to:

12.2.a. Prescribing or dispensing any "Controlled Substance" as defined in W. Va. Code § 60A-1-1et. seq.:

12.2.a.A. With the intent or knowledge that a controlled substance will be used or is likely to be used other than medicinally or for an accepted therapeutic purpose;

12.2.a.B. With the intent to evade any law with respect to the sale, use or disposition of the controlled substances;

12.2.a.C. For the licensee's or credential holder's personal use, or for the use of his or her immediate family when the licensee or credential holder knows or has reason to know that an abuse of controlled substance(s) is occurring, or may result from such a practice; or

12.2.a.D. In such amounts that the licensee or credential holder knows or has reason to know, under the attendant circumstances, that the amounts prescribed or dispensed are excessive under accepted and prevailing medical practice standards;

12.2.b. Issuing or publishing in any manner whatsoever, representations in which grossly improbable or extravagant statements are made which have a tendency to deceive or defraud the public, or a member thereof, including, but not limited to:

12.2.b.A. Any representation in which the licensee or credential holder claims that he or she is able to cure or treat manifestly incurable diseases, ailments or infirmities by any method, procedure, treatment or medicine which the licensee or credential holder knows or has reason to know has little or no therapeutic value;

12.2.b.B. Represents or professes or holds himself or herself out as being able and willing to treat diseases, ailments or infirmities under a system or school of practice:

12.2.b.B(a) Other than that for which he or she holds a certificate, credential or license granted by the Board;

12.2.b.B(b) Other than that for which he or she holds a degree or diploma from a school otherwise recognized as accredited by the Board; or

12.2.b.B(c) Which he or she professes to be self-taught;

12.2.c. A serious act, or a pattern of acts committed during the course of his or her medical or podiatric practice which, under the attendant circumstances, would be considered to be gross incompetence, gross ignorance, gross negligence or malpractice, including the performance of any unnecessary service or procedure;

12.2.d. Conduct which is calculated to bring or has the effect of bringing the medical or podiatric profession into disrepute, including, but not limited to, any departure from or failure to conform to the standards of acceptable and prevailing medical or podiatric practice within the state, and any departure from or failure to conform to the current principles of medical ethics of the AMA available from the AMA in Chicago, Illinois, or the principles of podiatric ethics of the APMA available from the APMA in Bethesda, Maryland. For the purposes of this subsection, actual injury to a patient need not be established;

12.2.e. Any charges or fees for any type of service rendered within seventy-two hours of the initial visit, if the licensee or credential holder advertises free service, free examination or free treatment;

12.2.f. The administration of anabolic steroids for other than therapeutic purposes;

12.2.g. Failing to meet the standard of practice in connection with any supervisory and/or collaborative agreement with any category of health practitioner;

12.2.h. Violation of the Board rules for dispensing prescription drugs, as set forth in West Virginia Board of Medicine Rule 11 CSR 5;

12.2.i. Charging or collecting an excessive, unconscionable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:

12.2.i.A. The time and effort required;

12.2.i.B. The novelty and difficulty of the procedure or treatment;

12.2.i.C. The skill required to perform the procedure or treatment properly;

12.2.i.D. Any requirements or conditions imposed by the patient or circumstances;

12.2.i.E. The nature and length of the professional relationship with the patient;

12.2.i.F. The experience, reputation, and ability of the licensee or credential holder; and

12.2.i.G. The nature of the circumstances under which the services are provided.

In any case where it is found that an excessive, unconscionable fee has been charged, in addition to any actions taken under the provisions of subsection 12.3 of this rule, the Board may require the licensee or credential holder to reduce or pay back the fee; and

12.2.j. Failure by a licensee or credential holder to report a known or observed violation of this rule, the rule for dispensing prescription drugs as set forth in West Virginia Board of Medicine Rule 11 CSR 5, and/or the provisions of the West Virginia Medical Practice Act.

12.2.k. A practice of providing treatment recommendations relating to issuing prescriptions, via electronic or other means, for persons without establishing an on-going provider-patient relationship wherein the physician, podiatric physician or physician assistant has obtained information adequate to support the prescription: Provided, That this definition does not apply: in a documented emergency; or in an on-call or cross coverage situation; or where patient care is rendered in consultation with another provider who has an ongoing relationship with the patient, and who has agreed to supervise the patient's treatment, including use of any prescribed medications.

12.3. When the Board finds that any applicant is unqualified to be granted a license or finds that any licensee or credential holder should be disciplined pursuant to the West Virginia Medical Practice Act or rules of the Board, the Board may take any one or more of the following actions:

12.3.a. Refuse to grant a license to an applicant;

12.3.b. Administer a public reprimand;

12.3.c. Suspend, limit or restrict any license for a definite period, not to exceed five years;

12.3.d. Require any licensee or credential holder to participate in a program of education prescribed by the Board;

12.3.e. Revoke any license or credential;

12.3.f. Require the licensee or credential holder to submit to care, counseling or treatment by physicians or other professional persons;

12.3.g. Assess a civil fine of between $1,000 and $10,000 and/or assess cost of the Board's investigation and administrative proceedings against the licensee or credential holder;

12.3.h. Require him or her to practice under the direction or supervision of another practitioner or

12.3.i. Require the licensee or credential holder to provide a period of free public or charitable service.

In addition to and in conjunction with these actions, the Board may make a finding adverse to the licensee, credential holder or applicant, but withhold imposition of judgment and penalty, or it may impose the judgement and penalty but suspend enforcement of penalty and place the physician or podiatric physician on probation. Probation may be vacated upon noncompliance with such reasonable terms as the Board may impose. In its discretion, the Board may restore and reissue a license to practice medicine or podiatric medicine issued under the West Virginia Medical Practice Act or any antecedent law, and as a condition thereof, it may impose any disciplinary or corrective measure provided for in this Rule or in the West Virginia Medical Practice Act.

12.4. The Board has the authority to place a licensee or credential in a probationary status and to apply varying conditions during the probationary period.

12.4.a. Conditions for probation: Upon reaching the conclusion that a license or credential should be placed on probation, the Board may impose any one or more of the following conditions:

12.4.a.A. The Board may appoint one or more Board members to be responsible for having the probationary licensee report for interviews on a regular basis. These interviews may be set up on a periodic basis as determined by the Board and the Board members so appointed shall report back to the Board at its regularly scheduled meeting on the progress of the licensee or credential holder;

12.4.a.B. The Board may cause the probationary licensee or credential holder to appear before the Board at such intervals as the Board may determine to provide progress reports. During these appearances, the Board may ask questions so as to observe behavior and probationary progress;

12.4.a.C. The Board may select a physician or podiatric physician, as applicable, or request the subject licensee or credential holder to select a physician or podiatric physician, as applicable, for Board approval. The physician or podiatric physician shall submit periodic progress reports on the concerned licensee or credential holder as the Board may direct;

12.4.a.D. The Board may appoint a medical consultant whose responsibility is to handle interviews with the probationary licensee or credential holder. The probationary licensee or credential holder shall report to the appointed medical consultant on a regular basis as determined by the Board, and the medical consultant shall report to the Board at intervals determined by the Board;

12.4.a.E. In cases of alcoholism and/or drug abuse, as a condition of probation, the Board may require that the probationary licensee or credential holder submit periodic blood samples and/or urine drug screen samples or participate in direct monitoring by the Board-designated physician health program;

12.4.a.F. The Board may require that a probationary licensee or credential holder report all medications that he or she may be utilizing and that he or she make reports to the Board, at such intervals as the Board may direct from time to time;

12.4.a.G. The Board may require that the probationary licensee or credential holder authorize his or her personal physician or provider to submit to the Board, for review, the subject licensee's or credential holder's medical history, both as to past medical history and any and all new medical history as may become available to the personal physician or provider during the period of the probationary term;

12.4.a.H. The Board may require that prior to the termination of a probationary term, the probationary licensee or credential holder appear at a regularly scheduled Board or Board Committee meeting and furnish the Board with information as it may then request, and the Board may utilize subpoenas, subpoenas duces tecum and its investigators as it considers necessary to gather facts and evidence to determine compliance by the subject licensee or credential holder with the terms of probation; and

12.4.a.I. In those situations where indicated, the Board may impose additional terms of probation upon a licensee or credential holder who has initially been placed on probation, as long as the entire period of any additional imposed probationary period does not exceed five years from the initiation date of the originally imposed probationary period.

W. Va. Code R. § 11-1A-12