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Introduced Version House Bill 2648 History

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Key: Green = existing Code. Red = new code to be enacted
H. B. 2648


(By Delegates Perdue, Boggs, Hatfield, Campbell,
Mahan, Hamilton, Michael and Morgan)

[Introduced February 18, 2009; referred to the
Committee on Health and Human Resources then the Judiciary.]



A BILL to amend and reenact §5-16-9 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §5-16B-11; to amend and reenact §9-5-15 of said code; to amend said code by adding thereto a new article, designated §16-29J-1, §16-29J-2 , §16-29J-3 , §16-29J-4 and §16-29J-5 ; and to amend said code by adding thereto a new section, designated §33-4-1a, all relating to protecting prescriber identifiable information in the same manner as individually identifiable health information.

Be it enacted by the Legislature of West Virginia:
That §5-16-9 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto a new section, designated §5-16B-11; that §9-5-15 of said code be amended and reenacted; that said code be amended by adding thereto a new article, designated §16-29J-1, §16-29J-2
, §16-29J-3 , §16-29J-4 and §16-29J-5 ; and that said code be amended by adding thereto a new section, designated §33-4-1a, all to read as follows:
CHAPTER 5. GENERAL POWERS AND DUTIES OF THE GOVERNOR, SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS; MISCELLANEOUS

AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.

ARTICLE 16. WEST VIRGINIA PUBLIC EMPLOYEES INSURANCE ACT.

§5-16-9. Authorization to execute contracts for group hospital and surgical insurance, group major medical insurance, group prescription drug insurance, group life and accidental death insurance and other accidental death insurance; mandated benefits; limitations; awarding of contracts; reinsurance; certificates for covered employees; discontinuance of contracts.

(a) The director is hereby given exclusive authorization to execute such contract or contracts as are necessary to carry out the provisions of this article and to provide the plan or plans of group hospital and surgical insurance coverage, group major medical insurance coverage, group prescription drug insurance coverage and group life and accidental death insurance coverage selected in accordance with the provisions of this article, such contract or contracts to be executed with one or more agencies, corporations, insurance companies or service organizations licensed to sell group hospital and surgical insurance, group major medical insurance, group prescription drug insurance and group life and accidental death insurance in this state.
(b) The group hospital or surgical insurance coverage and group major medical insurance coverage herein provided for shall include coverages and benefits for X-ray and laboratory services in connection with mammogram and pap smears when performed for cancer screening or diagnostic services and annual checkups for prostate cancer in men age fifty and over. Such benefits shall include, but not be limited to, the following:
(1) Mammograms when medically appropriate and consistent with the current guidelines from the United States Preventive Services Task Force;
(2) A pap smear, either conventional or liquid-based cytology, whichever is medically appropriate and consistent with the current guidelines from the United States Preventative Services Task Force or The American College of Obstetricians and Gynecologists, for women age eighteen and over;
(3) A test for the human papilloma virus (HPV) for women age eighteen or over, when medically appropriate and consistent with the current guidelines from either the United States Preventive Services Task Force or The American College of Obstetricians and Gynecologists for women age eighteen and over;
(4) A checkup for prostate cancer annually for men age fifty or over; and
(5) Annual screening for kidney disease as determined to be medically necessary by a physician using any combination of blood pressure testing, urine albumin or urine protein testing and serum creatinine testing as recommended by the National Kidney Foundation.
(c) The group life and accidental death insurance herein provided for shall be in the amount of $10,000 for every employee. The amount of the group life and accidental death insurance to which an employee would otherwise be entitled shall be reduced to $5,000 upon such employee attaining age sixty-five.
(d) All of the insurance coverage to be provided for under this article may be included in one or more similar contracts issued by the same or different carriers.
(e) The provisions of article Article three, chapter five-a of this code, relating to the Division of Purchasing of the Department of Finance and Administration, shall does not apply to any contracts for any insurance coverage or professional services authorized to be executed under the provisions of this article. Before entering into any contract for any insurance coverage as authorized in by this article, the director shall invite competent bids from all qualified and licensed insurance companies or carriers, who may wish to offer plans for the insurance coverage desired. Provided, That the The director shall negotiate and contract directly with health care providers and other entities, organizations and vendors in order to secure competitive premiums, prices and other financial advantages. The director shall deal directly with insurers or health care providers and other entities, organizations and vendors in presenting specifications and receiving quotations for bid purposes. No commission or finder's fee, or any combination thereof, shall be paid to any individual or agent.; but this shall not preclude However, an underwriting insurance company or companies may, at their own expense, from appointing appoint a licensed resident agent, within this state, to service the companies' contracts awarded under the provisions of this article. Commissions reasonably related to actual service rendered for the agent or agents may be paid by the underwriting company or companies. Provided, however, That in In no event shall payment be made to any agent or agents when no actual services are rendered or performed. The director shall award the contract or contracts on a competitive basis. In awarding the contract or contracts the director shall take into account the experience of the offering agency, corporation, insurance company or service organization in the group hospital and surgical insurance field, group major medical insurance field, group prescription drug field and group life and accidental death insurance field and its facilities for the handling of claims. In evaluating these factors, the director may employ the services of impartial, professional insurance analysts or actuaries, or both. Any contract executed by the director with a selected carrier shall be a contract to govern all eligible employees subject to the provisions of this article. Nothing contained in this article shall prohibit any insurance carrier from soliciting employees covered hereunder to purchase additional hospital and surgical, major medical or life and accidental death insurance coverage.
(f) The director may authorize the carrier with whom a primary contract is executed to reinsure portions of the contract with other carriers which elect to be a reinsurer and who are legally qualified to enter into a reinsurance agreement under the laws of this state.
(g) Each employee who is covered under any contract or contracts shall receive a statement of benefits to which the employee, his or her spouse and his or her dependents are entitled under the contract, setting forth the information as to whom the benefits are payable, to whom claims shall be submitted and a summary of the provisions of the contract or contracts as they affect the employee, his or her spouse and his or her dependents.
(h) The director may at the end of any contract period discontinue any contract or contracts it has executed with any carrier and replace the same with a contract or contracts with any other carrier or carriers meeting the requirements of this article.
(i) The director shall provide by contract or contracts entered into under the provisions of this article the cost for coverage of children's immunization services from birth through age sixteen years to provide immunization against the following illnesses: Diphtheria, polio, mumps, measles, rubella, tetanus, hepatitis-b, haemophilus influenza-b and whooping cough. Additional immunizations may be required by the Commissioner of the Bureau for Public Health for public health purposes. Any contract entered into to cover these services shall require that all costs associated with immunization, including the cost of the vaccine, if incurred by the health care provider, and all costs of vaccine administration, be exempt from any deductible, per visit charge and/or copayment provisions which may be in force in these policies or contracts. This section does not require that other health care services provided at the time of immunization be exempt from any deductible and/or copayment provisions.
(j) As permitted under Section 264(c) (2) of Federal Law 104-191, West Virginia requires that any and all prescriber identifiable information shall be included within the definition of individually identifiable health information and constitutes an additional category of protected health information pursuant to article twenty-nine-j of chapter sixteen.
ARTICLE 16B. WEST VIRGINIA CHILDREN'S HEALTH INSURANCE PROGRAM.
§5-16B-11. Confidentiality of prescriber information.
As permitted under Section 264(c)(2) of Federal Law 104-191, West Virginia requires that any and all prescriber identifiable information shall be included within the definition of individually identifiable health information and constitutes an additional category of protected health information pursuant to article twenty-nine-j of chapter sixteen.
CHAPTER 9. HUMAN SERVICES.

ARTICLE 5. MISCELLANEOUS PROVISIONS.
§9-5-15. Medicaid program; preferred drug list and utilization review.

The Legislature finds that it is a public necessity that trade secrets, rebate amounts, percentage of rebate, manufacturer's pricing and supplemental rebates that are contained in records, as well as any meetings at which this information is negotiated or discussed disclosed need confidentiality to insure the most significant rebates available for the state. Information pertaining to similar agreements with the federal government and negotiated by pharmaceutical manufacturers is confidential pursuant to 42 U.S.C. 1396r-8. A rebate as a percentage of average manufacture price is confidential under federal law and the federal rebate could be made known if not protected by state law. Because of the protection afforded by federal law, if this information is not protected by state law, manufacturers will not be willing to offer a rebate in West Virginia. Further, the Legislature finds that the number and value of supplemental rebates obtained by the department will increase, to the benefit of Medicaid recipients, if information related to the supplemental rebates is protected in the records of the department and in meetings in which this information is disclosed discussed because manufacturers will be assured they will not to be placed at a competitive disadvantage by exposure of this information.
Further, as permitted under Section 264(c)(2) of Federal Law 104-191, West Virginia requires that any and all prescriber identifiable information shall be included within the definition of individually identifiable health information and constitutes an additional category of protected health information pursuant to article twenty-nine-j of chapter sixteen.
The Secretary of the Department of Health and Human Resources has the authority to develop a preferred drug list, in accordance with federal law, which shall consist of federally approved drugs. The department, through administration of the Medicaid program, may reimburse, where applicable and in accordance with federal law, entities providing and dispensing prescription drugs from the preferred drug list.
The secretary of the department is hereby authorized to negotiate and enter into agreements with pharmaceutical manufacturers for supplemental rebates for Medicaid reimbursable drugs.
The provisions of article Article three, chapter five-a of this code shall not apply to any contract or contracts entered into under this section.
Trade secrets, rebate amounts, percentage of rebate, manufacturer's pricing and supplemental rebates which are contained in the department's records and those of its agents with respect to supplemental rebate negotiations and which are prepared pursuant to a supplemental rebate agreement are confidential and exempt from all of article one, chapter twenty-nine-b of this code.
Those portions of any meetings of the committee at which trade secrets, rebate amounts, percentage of rebate, manufacturer's pricing and supplemental rebates are disclosed for discussion or negotiation of a supplemental rebate agreement are exempt from all of article nine-a, chapter six of this code.
The secretary of the department will monitor and evaluate the effects of this provision on Medicaid recipients, the Medicaid program, physicians and pharmacies.
The commissioner shall implement a drug utilization review program to assure that prescribing and dispensing of drug products result in the most rational cost-effective medication therapy for Medicaid patients.
Any moneys received in supplemental rebates will be deposited in the Medical Services Fund established in section two, article four, chapter nine of this code.
CHAPTER 16. PUBLIC HEALTH.

ARTICLE 29J. PRESCRIBER-IDENTIFIABLE INFORMATION PROTECTION ACT.
§16-29J-1. Purpose.

The purpose of this article is to require that any and all prescriber identifiable information, with regard to any prescription for which payment may be made under any West Virginia government health plan or West Virginia health plan,
shall be included within the definition of individually identifiable health information and constitutes an additional category of protected health information.
§16-29J-2. Short title.
This article may be cited as the "Prescriber Identifiable Information Protection Act."
§16-29J-3. Definitions.
For the purposes of this article:
(a) "HIPAA" means Federal Public Law 104-191, the Health Insurance Portability and Accountability Act of 1996.
(b) "HIPAA Privacy Rule" means the regulations promulgated under Section 264(c) of HIPAA, currently found at 67 Federal Regulation 53182 (Aug. 14, 2002).
(c) "Individually identifiable health information" and "protected health information" shall be as described in the HIPAA Privacy Rule.
(d) "West Virginia Government Health Plan" means any health or insurance program the State of West Virginia is a payor, in full or in part. State health plans shall include, but not be limited to, Public Employees Insurance Program, Medicaid, the Children's Health Insurance Program; Regional Jail and Correctional Facilities and Juvenile Facilities.
(e) "West Virginia Health Plan" means any person licensed by West Virginia pursuant to chapter thirty-three of this code to provide health insurance or health benefits within the state.
(f) "Prescriber" means any person authorized under applicable law to write prescriptions in West Virginia.
(g) "Prescriber identifiable information" means any record or information which identifies or enables any person to at least potentially determine the identity of a prescriber with regard to any prescription for which payment may be made under any West Virginia government health plan or West Virginia health plan.

§16-29J-4. Enactment.
(a) The West Virginia Health Care Authority shall ensure that patient specific protected health information, including "prescriber identifiable information," be disclosed only in accordance with the patient's authorization or best interest to those having a need to know, in compliance with state confidentiality laws and the Health Insurance Portability and Accountability Act of 1996 and any amendments and regulations under the act.
(b) The health information, including "prescriber identifiable information," data and records of the West Virginia Health Information Network shall be exempt from disclosure under the provisions of chapter twenty-nine-b of this code.
§16-29J-5. Enforcement.
Each violation of this section shall be punishable by a civil penalty of up to $15,000 per occurrence.
CHAPTER 33. INSURANCE.

ARTICLE 4. GENERAL PROVISIONS.
§33-4-1a. Confidentiality of prescriber information.
As permitted under Section 264(c)(2) of Federal Law 104-191, West Virginia requires that any and all prescriber identifiable information shall be included within the definition of individually identifiable health information and constitutes an additional category of protected health information pursuant to article twenty-nine-j of chapter sixteen.

NOTE: The purpose of the bill is to protect the privacy of a person's prescription information.


Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
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