W. Va. Code R. § 32-7-4 - Causes for Denial, Probation, Limitation, Discipline, Suspension or Revocation of Licenses of Acupuncturists
4.1. The Board may deny an application for
license, place a licensee on probation, suspend a license, limit or restrict a
licensee or revoke any license issued by the Board, upon satisfactory proof
that the licensee has:
4.1.1. 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;
4.1.2. Been or is involved in fraud, forgery,
deception, collusion or conspiracy in connection with an examination for a
license;
4.1.3. Become addicted to
a controlled substance;
4.1.4.
Become a chronic or persistent alcoholic;
4.1.5. Engaged in dishonorable, unethical or
unprofessional conduct of a character likely to deceive, defraud or harm the
public or member of the public;
4.1.6. Willfully violated a confidential
communication;
4.1.7. Had his or
her license to practice acupuncture or oriental 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;
4.1.8. Been or is unable to
practice acupuncture or oriental 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 any reason of any physical or
mental abnormality;
4.1.9.
Demonstrated a lack of professional competence to practice acupuncture or
oriental medicine with a reasonable degree of skill and safety for patients. In
this connection, the Board may consider repeated acts of an acupuncturist
indicating his or her failure to properly treat a patient and may require the
acupuncturist to submit to inquiries or examinations, written or oral, by
members of the Board, by its agent, or designee, as the Board considers
necessary to determine the professional qualifications of the
licensee;
4.1.10. Engaged in
unprofessional conduct, including, but not limited to, any departure from, or
failure to conform to, the standards of acceptable and prevailing oriental
medical practice, or the ethics of the oriental medical profession, or
unprofessional conduct as presented in the Board's rule, Code of Ethics for
Licensed Acupuncturist, 32CSR10 of the Boards Rules, irrespective of whether 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 or otherwise and whether committed within or without this
State;
4.1.11. Been convicted of or
found guilty of a crime in any jurisdiction which directly relates to the
practice of acupuncture or oriental medicine or to the ability to practice
acupuncture or oriental medicine. A plea of nolo contendere will be considered
conviction for the purposes of this rule;
4.1.12. Advertised, practiced or attempted to
practice under a name other than his or her own;
4.1.13. Failed to report to the Board any
person whom the licensee knows is in violation of this rule or of provisions of
the West Virginia Acupuncture Practice Act;
4.1.14. Aided, assisted, procured or advised
any unlicensed person to practice oriental medicine contrary to this rule or
the West Virginia Acupuncture Practice Act;
4.1.15. Failed to perform any statutory or
legal obligation placed upon an acupuncturist;
4.1.16. 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, willfully impeded or
obstructed the filing or induced another person to do so. The reports or
records will include only those which are signed in the capacity as a licensed
acupuncturist;
4.1.17. Paid or
received any commission, bonus, kickback or rebate, or engaged in any split-fee
arrangement in any form whatsoever with an acupuncturist, 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 will not be construed to prevent
an acupuncturist from receiving a fee for professional consultation
service;
4.1.18. Exercised
influence within a patient-practitioner relationship for purposes of engaging a
patient in sexual activity;
4.1.19.
Made deceptive, untrue or fraudulent representations in the practice of
oriental medicine or employed a trick or scheme in the practice of oriental
medicine when the trick or scheme fails to conform to the generally prevailing
standards of treatment in the oriental medical community;
4.1.20. Solicited patients, either personally
or through an agent, through 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;
4.1.21. 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;
4.1.22.
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 includes, but not be limited to, the promoting or selling of services,
goods, appliances or materia medica and the promotion or advertising on any
prescription form of a pharmacy. For the purposes of this subdivision,
prescribing, dispensing, administering, mixing or otherwise preparing materia
medica, including all controlled and non-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 acupuncturist or oriental medical
practitioners professional practice, without regard to his or her
intent;
4.1.23. Engaged in
malpractice or failed to practice acupuncture or oriental medicine with that
level of care, skill and treatment which are recognized by a reasonable,
prudent, acupuncturist or an oriental medical practitioner engaged in the same
or similar specialty as being acceptable under similar conditions and
circumstances;
4.1.24. Performed
any procedure or prescribed any therapy which, by the prevailing standards of
oriental medical practice in the community, would constitute experimentation on
a human subject, without first obtaining full, informed and written consent
from the patient;
4.1.25. Practiced
or offered to practice acupuncture beyond the scope permitted by the West
Virginia Acupuncture Practice Act or accepted and performed professional
responsibilities which the licensee knows or has reason to know he or she is
not competent to perform;
4.1.26.
Delegated professional responsibilities to a person whom the licensee knew or
had reason to know was not qualified by training, experience or licensure to
perform the responsibilities;
4.1.27. Violated or attempted to violate any
law or rule of any jurisdiction, which relates to the practice of
acupuncture.
4.1.28. Violated or
failed to comply with a lawful order of the Board, or has violated an order of
any court entered pursuant to any proceedings commenced by the Board;
4.1.29. Offered, undertaken or agreed to cure
or treat disease by a secret method, procedure, treatment or medicine; or has
treated for any human condition, by a method, means, or procedure which the
licensee has refused to divulge upon demand of the Board;
4.1.30. 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; or
4.1.31. Engaged in advertising that is not in
the public interest. Advertising that is not in the public interest includes
the following:
4.1.31.a. Advertising that has
the effect of intimidating or exerting undue pressure;
4.1.31.b. Advertising that uses
testimonials;
4.1.31.c. Advertising
which is false, deceptive, misleading, sensational or flamboyant;
4.1.31.d. Advertising which guarantees
satisfaction or a cure;
4.1.31.e.
Advertising which offers gratuitous services or discounts, the purpose of which
is to deceive the public. This paragraph 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
4.1.31.f. Advertising which make claims of
professional superiority which a licensee is unable to substantiate.
4.2. For the purposes
of Section 4.1., acts declared to constitute 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;
4.2.1. Prescribing or dispensing any
"Controlled Substance" as defined in the W. Va. Code §
60A-1-101(d),
except as defined in W. Va. Code §
30-36-2
when performed in accordance with the principles of oriental acupuncture
medical theories;
4.2.2. 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:
4.2.2.a. 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;
4.2.2.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, except:
4.2.2.b.1. for which he or
she holds a degree or diploma from a school otherwise recognized by the Board,
or
4.2.2.b.2. Which he or she
professes to be self-taught or self-developed.
4.2.3. A serious act, or a pattern of acts
committed during the course of an acupuncture 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;
4.2.4. Conduct which is calculated to bring
or has the effect of bringing the acupuncture or oriental medical profession
into disrepute, including, but not limited to, any departure from or failure to
conform to the standards of acceptable and prevailing oriental medical practice
within the State;
4.2.5. Any
charges or fees for any type of service rendered within forty-eight (48) hours
of the initial visit, if the licensee advertises free service, free examination
or free treatment;
4.2.6. Failing
to meet the standard of practice in connection with any supervisory and/or
collaborative agreement with any category of health practitioner licensed under
Chapter 30 of the W. Va. Code;
4.2.7. Charging or collecting an excessive or
unconscionable fee. Factors to be considered as guides in determining the
reasonableness of a fee include the following:
4.2.7.a. The time and effort
required;
4.2.7.b. The novelty and
difficulty of the procedure or treatment;
4.2.7.c. The skill required to perform the
procedure or treatment properly;
4.2.7.d. Any requirements or conditions
imposed by the patient or circumstances;
4.2.7.e. The nature and length of the
professional relationship with the patient;
4.2.7.f. The experience, reputation, and
ability of the licensee; and
4.2.7.g. The nature of the circumstances
under which the services are provided.
4.2.8. 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 section 4.3 of this rule, the Board may require
the licensee to reduce or pay back the fee.
4.3. When the Board finds that any applicant
is unqualified to be granted a license or finds that any licensee should be
disciplined pursuant to the West Virginia Acupuncture Practice Act or rules of
the Board, the Board may take anyone or more of the following actions:
4.3.1. Refuse to grant a license to an
applicant;
4.3.2. Administer a
public reprimand;
4.3.3. Suspend,
limit or restrict any license for a definite period, not to exceed five (5)
years;
4.3.4. Require any licensee
to participate in a program of education prescribed by the Board;
4.3.5. Revoke any license;
4.3.6. Require the licensee to submit to
care, counseling or treatment by physicians or other professional
persons;
4.3.7. Require him or her
to practice under the direction or supervision of another practitioner;
or
4.3.8. Require the licensee to
provide a period of free public or charitable service.
4.3.9. In addition to and in conjunction with
these actions, the Board may make a finding adverse to the licensee or
applicant, but withhold imposition of judgment and penalty, or it may impose
the judgment and penalty but suspend enforcement of the penalty and place the
acupuncturist on probation, which may be vacated upon the noncompliance with
any terms imposed by the Board. In its discretion, the Board may restore and
reissue a license under the West Virginia Acupuncture Practice Act, W. Va. Code
§
30-36-1
et. seq. , and as a condition it may impose any disciplinary or corrective
measure provided for in this Rule or in the West Virginia Acupuncture Practice
Act.
4.4. The Board has
the authority to place a licensee in a probationary status and to apply varying
conditions upon the licensee during the probationary period. Upon reaching the
conclusion that a licensee to practice acupuncture should be placed on
probation, the Board may impose anyone or more of the following conditions:
4.4.1. 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 appointed Board members will then
report back to the Board at its regularly scheduled meeting on the progress of
the licensee;
4.4.2. The Board may
request the probationary licensee to appear before the Board at intervals
determined by the Board order that the licensee may report on his or her
progress. During these appearances by the probationary licensee, the Board may
ask the probationary licensee questions so as to observe his or her behavior
and progress;
4.4.3. The Board may
select a physician or request the probationary licensee to select a physician
who will be approved by the Board and the physician shall submit periodic
progress reports on the probationary licensee as directed by Board;
4.4.4. The Board may appoint a medical
consultant whose responsibility is to conduct interviews with the probationary
licensee. The probationary licensee shall then 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;
4.4.5. In cases of
alcoholism and/or drug abuse, as a condition of probation, the Board may
require that the probationary licensee submit periodic blood samples and/or
urine drug screen samples;
4.4.6.
The Board may require that the probationary licensee authorize his or her
personal physician to submit to the Board, for review, the probationary
licensee's medical history, both as to past medical history and any and all new
medical history as may become available to the personal physician during the
period of the probationary term;
4.4.7. The Board may require that the
probationary licensee report all medications that he or she may be utilizing
and that he or she make the reports to the Board, at intervals as directed by
the Board from time to time;
4.4.8.
The Board may require that prior to the termination of a probationary term, the
probationary licensee appear at a regularly scheduled Board meeting and furnish
the Board with information as it may 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
probationary licensee with the terms of probation; and
4.4.9. In those situations where indicated,
the Board may impose additional terms of probation, restriction, or revocation
upon a licensee who has initially been placed on probation. The period of
probation shall not exceed five (5) years from its initiation date.
Notes
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