Current through Register Vol. XLI, No. 24, June 14, 2024
Section 24-1-18 - [Effective until 7/1/2024] Causes For Denial, Probation, Limitation, Discipline, Suspension Or Revocation of Licenses of Osteopathic Physicians18.1. The Board may deny an application for a license, place a licensee on probation, suspend a license, limit or restrict a license or revoke any license issued by the Board, upon satisfactory proof that the licensee has:18.1.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;18.1.b. Been or is involved in fraud, forgery, deception, collusion or conspiracy in connection with an examination for a license;18.1.c. Become addicted to a controlled substance;18.1.d. Become a chronic or persistent alcoholic;18.1.e. Engaged in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public or any member of the public;18.1.f. Willfully violated a confidential communication;18.1.g. Had his or her license to practice osteopathic 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;18.1.h. Been or is unable to practice osteopathic medicine with reasonable skill and safety to patients by reason of illness, drunkenness, excessive use of alcohol, drugs, chemicals or any other type of substance, or by reason of any physical or mental abnormality;18.1.i. Demonstrated a lack of professional competence to practice osteopathic medicine with a reasonable degree of skill and safety for patients. In this connection, the Board may consider repeated acts of a physician indicating his or her failure to properly treat a patient and may require the physician to submit to inquiries or examinations, written or oral, by members of the Board, or by other physicians licensed to practice osteopathic medicine in this state, as the Board considers necessary to determine the professional qualifications of the licensee;18.1.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 practice, or the ethics of the osteopathic medical profession, irrespective of whether or not a patient is injured by the conduct, or has committed any act contrary to honesty, justice or good morals, whether the act is committed in the course of his or her practice and whether committed within or without this state;18.1.k. Been convicted of or found guilty of a crime in any jurisdiction which directly relates to the practice of osteopathic medicine or to the ability to practice osteopathic medicine. Any plea of nolo contendere is considered conviction for purposes of this rule;18.1.l. Advertised, practiced or attempted to practice under a name other than his or her own;18.1.m. Failed to report to the Board any person whom the licensee knows is in violation of this rule or of provisions of W. Va. Code §§ 30-14-1et seq. or 30-3E-1 et seq.;18.1.n. Aided, assisted, procured or advised any unlicensed person to practice osteopathic medicine contrary to this rule or W. Va. Code §§ 30-14-1et seq. or 30-3E-1 et seq.;18.1.o. Failed to perform any statutory or legal obligation placed upon a licensed physician;18.1.p. Made or filed a report which the licensee knows to be false; intentionally or negligently failed to file a report or record required by state or federal law or willfully impeded or obstructed the 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 physician;18.1.q. Paid or received any commission, bonus, kickback or rebate, or engaged in any split-fee arrangement in any form whatsoever with a physician, podiatrist, 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 from receiving a fee for professional consultation services;18.1.r. Engaged in sexual contact with a current patient who is not a spouse of the physician or exercised influence within a patient-physician relationship for purposes of engaging a patient in sexual activity;18.1.s. Made deceptive, untrue or fraudulent representations in the practice of osteopathic medicine or employed a trick or scheme in the practice of osteopathic medicine when the trick or scheme fails to conform to the generally prevailing standards of treatment in the medical community;18.1.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;18.1.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;18.1.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 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 professional practice, without regard to his or her intent;18.1.w. Prescribed, dispensed or administered any drug appearing on any schedule set forth in W. Va. Code §§ 60A-2-204 through 212 by the physician to himself or herself, except one prescribed, dispensed or administered to the physician by another practitioner authorized to prescribe, dispense or administer medicinal drugs;18.1.x. Engaged in malpractice or failed to practice osteopathic medicine with that level of care, skill and treatment which is recognized by a reasonable, prudent physician engaged in the same or a similar specialty as being acceptable under similar conditions and circumstances;18.1.y. Performed any procedure or prescribed any therapy which, by the prevailing standards of medical practice in the community, would constitute experimentation on a human subject, without first obtaining full, informed and written consent from the patient;18.1.z. Practiced or offered to practice osteopathic medicine and surgery beyond the scope permitted by law or accepted and performed professional responsibilities which the licensee knows or has reason to know he or she is not competent to perform;18.1.aa. Delegated professional responsibilities to a person whom the licensee knew or had reason to know is not qualified by training, experience or licensure to perform the responsibilities;18.1.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 relates to or in part regulates the practice of osteopathic medicine, when the licensee or applicant knows or should know that the 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;18.1.cc. Presigned blank prescription forms;18.1.dd. 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-2-204 through 212, to or for any person except for:18.1.dd.1. The treatment of narcolepsy; attention deficit disorder, which is a behavioral syndrome characterized by inappropriate symptoms of moderate to severe distractibility, short attention span, hyperactivity, emotional liability and impulsivity; or drug-induced brain dysfunction; or binge eating disorder;18.1.dd.2. 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;18.1.dd.3. The clinical investigation of the effects of the drugs or compounds when an investigative protocol for the drugs or compounds is submitted to, reviewed and approved by the Board before the investigation is begun; or18.1.dd.4. The treatment of obesity, when consistent with excessive appetite, for periods not to exceed 2 weeks per six-week period;18.1.ee. Knowingly maintained a professional connection or association with any person who is in violation of W. Va. Code §§ 30-14-1et seq. or 30-3E-1 et seq. or the rules of the Board; or has knowingly aided, assisted, procured or advised any person to practice osteopathic medicine contrary to W. Va. Code §§ 30-14-1et seq. or 30-3E-1 et seq. or to the rules of the Board; or knowingly performed any act which in any way aids, assists, procures, advises or encourages any unlicensed person or entity to practice osteopathic medicine; 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 osteopathic medicine as an officer or employee of any corporation other than one organized and existing pursuant to W. Va. Code § 30-14-1et seq. except as a licensed physician, intern or resident of a hospital or teaching institution licensed by this state;18.1.ff. 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 has refused to divulge upon demand of the Board;18.1.gg. Engaged in false or deceptive advertising. "False or Deceptive Advertising" means a statement that includes a misrepresentation of fact, is likely to mislead or deceive because of a failure to disclose material facts, is intended or is likely to create false or unjustified expectations of favorable results or includes representations or implications that in reasonable probability will cause an ordinary prudent person to misunderstand or be deceived; or18.1.hh. 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: 18.1.hh.1. Advertising that has the effect of intimidating or exerting undue pressure;18.1.hh.2. Advertising which is false, deceptive, misleading, sensational or flamboyant;18.1.hh.3. Advertising which guarantees satisfaction or a cure;18.1.hh.4. 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; and18.1.hh.5. Advertising which makes claims of professional superiority which a licensee is unable to substantiate.18.2. As used in section 18.1.e. of this rule, "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: 18.2.a. Prescribing or dispensing any "Controlled Substance" as defined in W. Va. Code §§ 60A-2-204 through 212:18.2.a.1. 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;18.2.a.2. With the intent to evade any law with respect to the sale, use or disposition of the controlled substance;18.2.a.3. For the licensee's personal use;18.2.a.4. For the use of his or her immediate family for any period of treatment, or sequence of such periods, exceeding 3 days;18.2.a.5. Without making an in-person examination of the patient at least once out of every 6 months for the duration of the treatment;18.2.a.6. Without making and keeping documentation of the examination of the patient, diagnosis, basis for treatment, and treatment plan, in a manner consistent with the standards of acceptable and prevailing medical practice;18.2.a.7. In amounts that the licensee knows or has reason to know, under the attendant circumstances, that the amounts so prescribed or dispensed are excessive under accepted and prevailing medical practice standards; or18.2.a.8. When the licensee knows, or has reason to know, that an abuse or improper diversion of the prescribed or dispensed substance is occurring or is likely to occur.18.2.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 of the public, including, but not limited to:18.2.b.1. Any representation in which the licensee 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 knows or has reason to know has little or no therapeutic value; or18.2.b.2. Any representation in which the licensee claims that he or she is able and willing to treat diseases, ailments or infirmities under a system or school of practice; other than that for which he or she holds a certificate or license granted by the Board; other than that for which he or she holds a degree or diploma from a school otherwise recognized as accredited by the Board; or which he or she professes to be self-taught;18.2.c. A serious act, or a pattern of acts committed during the course of his or her medical 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;18.2.d. Conduct which is calculated to bring or has the effect of bringing the osteopathic medical profession into disrepute, including, but not limited to, any departure from or failure to conform to the standards of acceptable and prevailing medical practice within the state, and any departure from or failure to conform to the principles of medical ethics of the AOA. For the purposes of this subsection, actual injury to a patient need not be established;18.2.e. Any charges or fees for any type of service rendered within 72 hours of the initial visit, if the licensee advertises free service, free examination or free treatment;18.2.f. The administration of anabolic steroids for other than therapeutic purposes;18.2.g. The use of chelation therapy for diseases and conditions other than acute hypercalcemia, lead poisoning, and intoxications caused by some other heavy metals;18.2.h. Charging or collecting an excessive, unconscionable fee.18.2.h.1. The Board shall take into account the following factors: 18.2.h.1.A. The time and effort required for performing services rendered;18.2.h.1.B. The novelty and difficulty of the procedure or treatment;18.2.h.1.C. The skill required to perform the procedure or treatment properly;18.2.h.1.D. Any requirements or conditions imposed by the patient or circumstances;18.2.h.1.E. The nature and length of the professional relationship with the patient;18.2.h.1.F. The experience, reputation, and ability of the licensee; and18.2.h.1.G. The nature of the circumstances under which the services are provided.18.2.h.2. In any case where it is found that an excessive, unconscionable fee has been charged, in addition to any actions taken, the Board may require the licensee to reduce or pay back the fee.18.2.i. Failure by a licensee to report a known or observed violation of this rule, and/or the provisions of W. Va. Code §§ 30-14-1et seq. or 30-3E-1 et seq.18.3. When the Board finds that any applicant is unqualified to be granted a license or finds that any licensee should be disciplined pursuant to W. Va. Code §§ 30-14-1et seq. or 30-3E-1 et seq. or rules of the Board, the Board may proceed as described in the West Virginia Board of Osteopathic Medicine rule Disciplinary and Complaint Procedures Title 24 CSR 6.