W. Va. Code R. § 64-48-7

Current through Register Vol. XLI, No. 43, October 25, 2024

Section 64-48-7 - Investigative/Disciplinary

7.1. The Commissioner may initiate investigations on his or her own motion, and upon the written complaint of any person, cause investigations to be conducted to determine if disciplinary action is called for, and impose the sanctions upon emergency medical services personnel as described in W. Va. Code § 16-4C-9. Reasons for such actions include, but are not limited to:

7.1.1. Failure to comply with any requirements of subsections 6.1. or 6.2. of this rule;

7.1.2. Incompetent practice while providing emergency medical services;

7.1.3. Abuse or abandonment of a patient;

7.1.4. Willful preparation or filing of false medical reports or records, or the inducement of other persons to do so;

7.1.5. Destruction of medical records required to be maintained;

7.1.6. Failure to comply with patient care reporting requirements established by the Commissioner;

7.1.7. A willful or consistent pattern of failure to complete details on a patient's medical record;

7.1.8. Having a license, certification, or other authorization to practice a health care profession or occupation revoked, suspended, or subjected to disciplinary sanction;

7.1.9. Improper disclosure of confidential patient information;

7.1.10. Violating a duty imposed by W. Va. Code § 16-4C-1et seq., this rule, or an order of the Commissioner previously entered in a disciplinary proceeding; or

7.1.11. Other reasons determined by the Commissioner which may pose a threat to the health and safety of the public or exposes the public to risk or loss of life or property.

7.2. The Commissioner may initiate complaints and investigations and impose the sanctions upon EMS agencies described in W. Va. Code § 16-4C-9. Reasons for such actions include, but are not limited to:

7.2.1. Failure to comply with any requirements of section 4 of this rule;

7.2.2. Operating EMS vehicles which fail to comply with section 5 of this rule;

7.2.3. Failure to comply with all applicable rules, policies, and procedures of the OEMS;

7.2.4. Disclosure of medical or other information, if prohibited by federal or state law;

7.2.5. Preparation or filing of false medical reports or records, or the inducement of other persons to do so;

7.2.6. Failure to disclose illegal, unethical acts and conduct of emergency medical services personnel or agencies to OEMS;

7.2.7. Failure to report to OEMS, within 10 days, any known arrest, indictment, misdemeanor, or felony conviction, or revocation, suspension, or other disciplinary sanction of a certificate or other authorization to practice any health care profession or occupation in any state for all EMS personnel affiliated with the agency;

7.2.8. Destruction of medical records required to be maintained;

7.2.9. Refusal to render emergency medical care because of a patient's race, gender, creed, national origin, age, disability, medical problem, or financial inability to pay;

7.2.10. Violating a duty imposed by W. Va. Code § 16-4C-1et seq., this rule, or an order of the Commissioner previously entered in a disciplinary proceeding; or

7.2.11. Other reasons determined by the Commissioner which may pose a threat to the health and safety of the public or exposes the public to risk or loss.

7.3. Investigation. -- The Commissioner will conduct an investigation with the intent to obtain appropriate resolution of a complaint.

7.3.1. OEMS may conduct investigations in conjunction with licensed agencies or law enforcement personnel as well as conduct separate and distinct investigations.

7.3.2. OEMS will investigate any and all matters within its jurisdiction, in accordance with established investigative protocols.

7.3.3. If it is determined that OEMS does not have jurisdiction over an investigative matter, OEMS may refer the complaint to another agency or organization having jurisdiction.

7.3.4. Initiation of an OEMS investigation does not release an EMS agency or other responsible entity from performing an internal investigation or imposing sanctions.

7.4. A person who files false or slanderous allegations against emergency medical services personnel is subject to penalties for civil as well as criminal false reporting.

7.5. Disciplinary and Corrective Action. -- The Commissioner may impose disciplinary or corrective measures in this rule upon EMS agencies and emergency medical services personnel for non-compliance with this rule. Disciplinary options may include, but are not limited to, one or more of the following:

7.5.1. Administrative penalties of up to $5,000 per violation;

7.5.2. Denial of certification;

7.5.3. Written reprimand;

7.5.4. Limitation on the certificate holder's authorization to practice;

7.5.5. Limitation of the EMS agency's license to provide service;

7.5.6. Required refresher courses or other education at the individual's expense;

7.5.7. A consent agreement;

7.5.8. Probation;

7.5.9. Suspension;

7.5.10. Revocation; and

7.5.11. Mandatory participation and successful completion of a detoxification or rehabilitation program at the individual's expense.

7.6. The factors which may be considered by the Commissioner when determining the appropriate disciplinary action include, but are not limited to:

7.6.1. The nature and severity of the actions under consideration;

7.6.2. Any actual or potential harm to the public or public trust;

7.6.3. Any actual or potential harm to a patient;

7.6.4. The individual's prior disciplinary record;

7.6.5. Prior remediation;

7.6.6. The number or variety of the actions under consideration;

7.6.7. Any aggravating evidence;

7.6.8. Any mitigating evidence;

7.6.9. Any discipline imposed by the OEMS or the State Medical Director, if any, for the same occurrence; and

7.6.10. In cases of criminal conviction or arrest, compliance with the terms of the sentence or court ordered conditions.

7.7. Administrative Penalties. -- OEMS may impose an administrative penalty of up to $5,000 per violation on any licensee or certificate holder found by the preponderance of the evidence to have committed any of the infractions described by this rule.

7.7.1. In assessing penalties, OEMS will give due consideration to the appropriateness of the penalty with respect to factors that include the gravity of the violation, the good faith of the licensee or certificate holder, the history of previous violations, and the totality of the discipline to be imposed.

7.7.2. Penalties shall be paid in a manner prescribed by the Commissioner within 60 days of receipt of notice of a penalty.

7.8. The procedures for hearings, rights of appeal, judicial review apply as set forth in W. Va. Code § 16-4C-10.

7.8.1. It is the intention of this rule to safeguard the residents of West Virginia by preventing any person who may be unfit or unqualified from engaging in emergency medical services and to safeguard the interests of emergency medical services personnel by affording them due process of law and an opportunity for fair notice and a meaningful hearing.

7.8.2. Those persons adversely affected by the enforcement of this rule desiring a contested case hearing to determine any rights, duties, interests or privileges shall do so in a manner prescribed in the West Virginia Bureau for Public Health rule, 64CSR1, "Rules of Procedure for Contested Case Hearings and Declaratory Rulings," and the provisions of this rule.

7.9. Confidentiality of Proceedings.

7.9.1. Any action taken by the Commissioner prior to the completion of administrative remedies and procedures established by W. Va. Code § 16-4C-10 and § 29A-5-1et seq. will remain confidential to the greatest extent consistent with the public good and state law.

7.9.2. The Commissioner will communicate proposed action prior to the completion of the administrative remedies and procedures only to the affected individual, his or her EMS agency, the agency's medical director and the regional medical director of the region affected.

7.10. Filing Papers.

7.10.1. Written communications concerning proceedings under this rule must be filed with the Commissioner by mailing the communications to the OEMS and the Commissioner will consider the postmark on the communications to be the filing date of the communications.

7.10.2. The Commissioner will furnish copies of the written communications to the affected individual, his or her EMS agency's official representative, the agency's medical director and the regional medical director for the region affected, and a notation shall be endorsed on the communications showing those persons who have been furnished copies.

7.11. Emergency Suspension. -- The Commissioner or Director may issue an emergency suspension order to any licensee or certificate holder if there is probable cause that the conduct or continued service or practice of any licensee or certificate holder may create danger to public health or safety.

7.11.1. An emergency suspension is effective immediately without a hearing or prior notice to the license or certificate holder. Notice to the license or certificate holder will be presumed established on the date that a copy of the signed emergency suspension order is sent to the licensee or certificate holder via U.S. certified mail, return receipt requested, at the address shown in the current records of OEMS or via personal service.

7.11.2. The Commissioner will send a copy of the emergency suspension order to the licensee's or certificate holder's EMS agency's official representative and medical director and may send the order to other parties whose legitimate interests may be at risk;

7.11.3. Written request for a hearing must be received within 10 days of the notification of suspension order. The written request shall specify the grounds for the appeal;

7.11.4. Upon receipt of the written request, OEMS will respond to the request for a hearing within 10 days;

7.11.5. Appeals are governed by W. Va. Code § 29A-5-1et seq.

W. Va. Code R. § 64-48-7