H. B. 2212
(By Delegate Huntwork)
[Introduced February 19, 1993; referred to the
Committee on Government Organization then Finance.]
A BILL to amend chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article twenty-nine-e,
relating to creating the "Health Care Cost Control Act of
1993"; stating purpose, scope and legislative findings;
providing definitions; creating a health care cost review
authority; establishing a medical advisory committee;
declaring incentives to modify unsafe behavior; making seat
belt use mandatory; providing misdemeanor criminal penalty;
declaring failure to wear set belt an act of negligence;
providing for reduction of damages in tort for failure to
wear seat belt; exceptions to wearing seat belts;
restricting smoking and prohibiting tobacco advertising in
public places; providing misdemeanor criminal penalty;
providing insurance and public health incentives for
wellness; requiring county boards of health to make certain
testing or medical procedures available to county residents;
determining amounts third party payors are required to pay
for testing or procedures; requiring county boards of health
to provide information regarding lists of primary care
physicians or other providers who are accepting new
patients, together with fee schedules, general information
regarding exercises, with warnings and disclaimers, general
dietary information, information and education relating to
childbirth and parenting and health maintenance information;
establishing a uniform standard payment schedule for health
care providers and health insurers; providing incentives for
certain services and attempting to reduce or eliminate
existing incentives for certain high cost procedures;
defining circumstances when the fixed fee is to be accepted
as payment in full by providers subject to specific
instances; encouraging cost-based shopping and situations
when the standard fee schedule is not binding on health care
consumers, providers or insurers; requiring insurers to
publish and distribute payment schedules for common medical
services and procedures to policyholders; providing
malpractice reform; providing nonjudicial remedies for
substandard health care; requiring the licensing board to
investigate complaints and procedure to handle such
complaints; providing optional pretrial review of health
related professional liability claims; creating a medical
liability review commission, stating composition and
qualifications of members; appointed by governor; commissionto review all evidence of claim, prior to trial and render
opinion, which may be introduced as evidence in trial;
providing for limit on liability for noneconomic loss and
periodic payment of future damages; limiting contingent
attorney fees in actions for injuries alleging medical
professional liability; joint and several liability limited
by preexisting conditions and by good faith settlements;
when punitive damages may be awarded; reducing amount of
economic damages by amounts received from collateral
sources; requiring certification of merit to be attached to
complaint filed in medical professional liability action;
providing for the prioritization of health care spending;
establishing a mandatory standard health benefits plan;
requiring the reporting of restricted procedures; review of
cases by health care cost review authority; controlling the
bureaucracy; identifying inappropriate financial incentives;
prohibiting certain contingent fees and credentialing;
prohibiting certain physician self-referral; promulgation of
rules by HCCRA; health insurance overhead and guaranteed
loss ratios; premium rate approval by insurance commissioner
after the first day of January, one thousand nine hundred
ninety-four; hospital reimbursement rates after the first
day of January, one thousand nine hundred ninety-four; costs
of education; hospital boards of directors; authority and
who may serve on; control of duplicative health care
services; designation of primary care providers; incentives;selection of coverage; nonpayment for duplicative services;
profits from health care ventures; advertising of health
care and related services; and providing penalties for
violations, including actions against licensures and civil
fines.
Be it enacted by the Legislature of West Virginia:
That chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article twenty-nine-e,
to read as follows:
§16-29E-1. Short title.
This article shall be known and may be cited as the "Health
Care Cost Control Act."
§16-29E-2. Purpose and scope.
It is the intent of this article to control expenditures on
health care in West Virginia to the extent possible without
compromising:
(1) The quality and availability of health care; or
(2) The actual health of West Virginia's residents and
citizens.
The scope of this article shall be the identification and
mitigation of any and all expenditures on health care and/or
related goods and services which increase the total cost of
health care in West Virginia without significantly improving the
quality or availability of health care services or the actual
health of West Virginia's citizens.
§16-29E-3. Legislative findings.
The Legislature finds and declares as follows:
(a) Access to high-quality, affordable, basic health care is
a right of every citizen and a primary concern of public policy.
(b) West Virginia's health care system and consequently the
health of West Virginians, is in jeopardy due to the following
factors:
(1) The spiraling aggregate cost of health care services;
(2) The high demand for health care services;
(3) The unavailability of affordable health insurance
coverage for many West Virginians;
(4) The inaccessibility of health care services; and
(5) The state's high proportion of uncompensated and
undercompensated health care.
(c) Although the price of specific health care services in
West Virginia may be lower than national averages, high health
care costs nevertheless contribute to the following significant
hardships for our people, government and economy:
(1) Health insurance is increasingly unavailable or
unaffordable to the people of West Virginia;
(2) Uninsured or underinsured health care services often
result in financial catastrophe for West Virginia's families;
(3) The deferral of needed health care services and/or
preventive health care contribute to an increased incidence of
marginal to poor health among West Virginia's citizens;
(4) An increasing and unmanageable burden on the statebudget due to health care costs has resulted in higher taxes and
reduced government services for the people of West Virginia;
(5) The increasing cost of employee health benefits erodes
the competitiveness of West Virginia's industries, jeopardizing
jobs; and
(6) The increasing cost of health care benefits erodes the
disposable income of West Virginia's employees, retarding
economic development.
(d) The following factors, which add to the cost of health
care without significantly improving the quality thereof or
access thereto, must be reduced to the extent possible:
(1) Overutilization of health care services due to the poor
health habits of West Virginia's citizens;
(2) Overutilization of health care services due to
inappropriate provider incentives;
(3) Overutilization of health care services due to an
absence of appropriate consumer restraints;
(4) Overutilization of health care services due to tort-
conscious medical decisions;
(5) Inappropriate allocation of health care resources due to
an absence of spending priorities;
(6) Irrational valuation of health care services, rewarding
resource-intensive procedures substantially more than less costly
cognitive and primary care services;
(7) Excessive administrative costs, advertising and profits
in the health insurance and hospital industries;
(8) Excessive costs due to unnecessary bureaucracy,
overregulation and redundancy throughout the entire health care
system, both public and private;
(9) Excessive incomes of certain workers in health-related
fields, including many insurance company employees, many hospital
administrative personnel and many health care providers;
(10) Overlapping and redundant services being provided by
practitioners in different, often competing, health care
disciplines.
(e) A reduction of the unproductive health care costs
identified above would be desirable regardless of the method by
which health care may be financed, a separate matter requiring
the attention of the Legislature of West Virginia and the
Congress of the United States.
(f) Since the first and foremost cause of health care
expenditures is impaired health, to the extent that good health
can be maintained or restored by legislation relating to the
physical, mental, environmental, or social condition of the
people of West Virginia, or affecting their health related
behavior, it is appropriate for the Legislature to act thereon,
within the framework of the constitution.
(g) Under current circumstances, "market forces" which might
moderate the cost of health care rarely exist. Virtually all
health care expenditures result from the decisions of health care
practitioners acting with the consent of their patients. While
most health care decisions are wisely and appropriately made inother respects, they are generally made without consideration of
cost, because health care practitioners usually have neither
incentive nor sanction to make cost a priority and because
patients often lack the incentive and/or the knowledge to
participate in cost-conscious decision making. To reduce health
care costs, a cost-competitive health care marketplace must be
created at the primary care level, and, whenever practicable,
providers and patients must be empowered and expected to make
cost-conscious health care choices.
(h) An inherent conflict of interest exists when a health
care provider refers a patient to an entity in which the health
care provider has an ownership or profit-sharing interest, or,
conversely, when a provider is financially rewarded for
withholding services. For cost control to become a consistent
and appropriate consideration in medical decisions, the incentive
for providers to favor one course of action over another based on
greater financial reward must be eliminated.
(i) Under certain circumstances, where it is inappropriate
or unrealistic for patients to consider cost in the choice of
health care, public policy should protect health care consumers
by means of a binding fee schedule. Examples of such
circumstances are:
(1) In true emergencies, where time rather than cost should
dictate health care choices;
(2) In the pricing of hospital-based ancillary services,
where patients have no meaningful control over the choice oflaboratory, X-ray and other services;
(3) In the care of those patients who, because of age or
mental status, are incapable of making appropriate cost-based
health care choices;
(4) In the care of those patients for whom, because of
poverty or other hardship, any significant cost would be an
obstacle to health care.
(j) Existing policies regarding medical malpractice neither
adequately reduce the incidence of substandard health care
services nor reliably identify and sanction substandard health
care practitioners. Moreover, they have raised the aggregate
cost of health care by creating a climate in which health care
services are often performed to ward off malpractice claims
rather than to provide optimum patient care and they have
restricted the availability of many important health care
services by making the practice of certain "high-risk" health
care specialties financially or emotionally untenable. The
following are ways in which the Legislature can protect the
public interest in affordable, available health care without
restricting the right of a party injured by negligence or
incompetence to be fully compensated for their loss:
(1) Create mechanisms to penalize patterns of substandard
health care rather than catastrophic instances thereof;
(2) Create an advisory panel to present independent
information and opinions to juries in malpractice cases;
(3) Limit noneconomic damages to two hundred fifty thousanddollars, except for gross negligence or intentional injury;
(4) Require that economic damages be reimbursed as they are
incurred, not "before the fact" or in a lump sum;
(5) Restrict attorney's fees to a maximum of twenty-five
percent of moneys awarded if a tort-related liability claim is
adjudicated at trial, and a maximum of ten thousand dollars if a
case is settled before trial;
(6) Establish that no person be required to pay a greater
percentage of a liability award than the percentage of actual
liability for the injury attributed to that person by the jury;
(7) Establish that "punitive damages" be paid into the West
Virginia fund for victims of crime, rather than to the plaintiff
in a specific case;
(8) Assure that collateral sources of compensation be
considered in awarding economic damages.
(k) However distasteful they may be, limitations on access
to health care exist in some form in every society, under every
health care system. Access may be limited inappropriately by
individual patients' ability to pay, by a scarcity of certain
services or by overt rationing or appropriately by the rational
prioritization of health care services based on costs and
benefits. Unless public policy requires that health care be made
available to all according to a rational assessment of the costs
and benefits of specific services, the ability of individuals or
communities to pay for health care services will continue to
determine their availability.
(l) The traditional valuation of health care services
creates incentives to perform high cost, hospital-based
procedures rather than cognitive and primary care services. The
need for an immense bureaucracy devoted to preauthorization of
services, utilization review and the like results in large part
from this fact. It is imperative that a payment scale be adopted
which eliminates the financial incentive to perform procedures.
Eliminating the major cause of unnecessary procedures would
reduce the need for a major part of the massive health care
bureaucracy.
(m) The profits, salaries and overhead of health insurance
companies, hospital corporations and other profit-oriented health
care ventures have become a substantial factor in the aggregate
cost of health care. In addition to higher cost, other pervasive
problems which result from the application of traditional
business concepts to health care include:
(1) Marketing and advertising which create inappropriate
demand for, unrealistic expectations of, or misconceptions about
health care services;
(2) The avoidance of responsibility for poorly remunerative
patients or services;
(3) Competition for patients, facilities and services based
on profitability rather than community need;
(4) A pervasive focus on the financial consequences of
health care rather than the welfare of patients.
(n) Those profits which result from efficiency, economy orproductivity are appropriate in health care and related services,
but those profits which result from misinformation, from the
artificial creation of demand, from the avoidance of community
responsibility, from monopolistic practices or from strategies
that select financially rewarding patients or services are not.
(o) The redundant oversight of health care by overlapping
peer review organizations, private and public inspection
agencies, utilization review standards, multiple insurance
companies and the like create waste, duplication, inefficiency
and instances of poor patient care throughout the health care
system. To the extent possible, these services should be
combined and simplified.
(p) It is in the public interest to maintain regulated
competition in health care, both between different types of
health care, such as chiropractic versus allopathic medical care,
and between practitioners offering similar health care services.
However, the costly practice of freely and/or simultaneously
utilizing competing health care services or health care
disciplines must be curtailed.
(q) Therefore, whereas the purpose of this enactment is to
provide for a comprehensive resolution of the matters set forth
above, the Legislature has determined that, insofar as they
relate to or otherwise affect the overall cost of health care for
the people of West Virginia, changes in the laws regulating
health insurance and the health insurance industry, the laws
regulating hospitals and the hospital industry, the lawsregulating various classes of health care providers, the laws
regulating third-party payment for certain health care services,
the laws regulating the extent and nature of profits which may
derive from investment in health-related ventures, the laws
regulating the public behavior of West Virginia's citizens as it
relates to identified health care risks, the laws regulating the
pattern of utilization of health care services as it relates both
to the decisions of health care providers and those of the
public-at-large, and the common law and statutory rights and
procedures under which our citizens may seek compensation for
health care related injuries and death must be enacted together
as necessary, mutual and synergistic components of the
appropriate legislative response.
§16-29E-4. Definitions.
As used in this article:
(1) "Ancillary hospital services" means those hospital
services such as clinical laboratory services, diagnostic imaging
services, electrocardiography and other similar diagnostic
services which are not directly therapeutic in nature but which
are necessary to allow and support direct patient care.
(2) "Balance billing" means to submit a bill of charges for
medical services which are greater than the amount allowed or
established in the standard provider fee schedule created
pursuant to section seven of this article.
(3) "Bank" means an institution for the custody, loan or
exchange of money and regulated under the banking laws of one ofthe several states of the United States.
(4) "Board" means the West Virginia health care cost review
authority.
(5) "Board of directors," in reference to hospitals, means
that group of people, defined according to the separate bylaws of
various hospitals, who exercise supervisory and managerial powers
over a hospital and its employees.
(6) "CPT codes" means current common procedure terminology
codes.
(7) "Calendar year" means a period of a year beginning with
the first day of January, and ending with the thirty-first day of
December.
(8) "Chiropractic physician" means a practitioner of
chiropractic licensed by, or eligible to be licensed by the West
Virginia board of chiropractic examiners.
(9) "Cognitive services" means activities related to health
care which require medical knowledge or skill but which do not
involve the performance of an identifiable diagnostic test or
therapeutic procedure.
(10) "Collateral source" means any individual, organization,
government, governmental subdivision or agency, or any other
legal entity that has compensated a claimant for injuries for
which the claimant is alleging damages due to medical
professional liability.
(11) "Commission" means the medical liability review
commission established pursuant to section eight of this article.
(12) "Contingent fees" means fees for services which are
dependent or conditioned on the outcome of an action.
(13) "Copayment" means a payment for health care services
made by the recipient of such services which is over-and-above
that payment made by a health insurer, up to the standard
provider fee schedule established pursuant to section seven of
this article.
(14) "Cost of living" means the cost of purchasing those
goods and services which are included in an accepted federal or
state index of consumption.
(15) "DRG" means diagnosis-related group.
(16) "DRG payment schedule" means a prospective payment
schedule for inpatient hospital services in which uniform
reimbursement rates are set for diagnosis-related groups, based
on average costs, resource consumption and length-of-hospital-
stay patterns.
(17) "Diagnosis related group" means one of a comprehensive
classification of groups of patients based on diagnosis, resource
consumption and length-of-hospital-stay patterns.
(18) "Diagnostic procedure" means a health care service
which is not directly therapeutic in nature, but the purpose of
which is to provide information regarding the nature of a health
problem or to monitor a course of treatment.
(19) "Economic damages" means the full value of all money,
property, or income lost or expended as the result of an injury,
plus interest on such losses from the time such loss occurred,plus the present value of all future lost income or expenses
related to such injury.
(20) "Family practice" means that health care specialty
defined and certified by the American academy of family practice.
(21) "HCCRA" means the West Virginia health care cost review
authority.
(22) "HMO" means a health maintenance organization.
(23) "Health care discipline" means a distinct category of
health care theory and practice, such as nursing, allopathic
medicine, osteopathic medicine and chiropractic.
(24) "Health maintenance organization" means a prepaid
health care plan operating pursuant to article twenty-five-a,
chapter thirty-three of this code.
(25) "Home health services" means in-home health care
provided for home-bound patients by employees of home health
agencies.
(26) "Imaging procedure" means a diagnostic procedure
intended to provide information in visual form regarding the
presence or absence of abnormal anatomic or physiologic
conditions.
(27) "Immunization" means the administration of vaccines or
other measures to create a condition of immunity or resistance to
infections or infectious diseases.
(28) "Incentive" means something which tends to incite or to
influence actions.
(29) "Indication" means a specific circumstance that makesor tends to make a particular medical decision or action
necessary or advisable.
(30) "Inpatient hospital services" means health care
services which are provided to a person who has been admitted to
and is under the observation and care of a licensed hospital.
(31) "Insurance commissioner" means the insurance
commissioner of West Virginia.
(32) "Insurer" means any entity transacting individual or
group health and accident insurance pursuant to chapter thirty-
three of this code.
(33) "Intentional" means done voluntarily, purposefully and
by design.
(34) "Internal medicine" means that medical specialty
defined and certified by the American board of internal medicine.
(35) "Investment interest" means ownership or partial
ownership, except ownership of registered securities and/or
shares of publicly owned corporations.
(36) "Laboratory test" means a diagnostic procedure
generally performed by a clinical laboratory.
(37) "Loss ratio" means the ratio of incurred claims to
earned premiums.
(38) "Malpractice" means medical professional liability.
(39) "Malpractice carrier" means an insurer indemnifying
against losses for medical professional liability.
(40) "Medicaid" means the federal medicaid program and any
state agencies or programs created pursuant thereto.
(41) "Medical advisory committee" means that committee
created pursuant to subsection (b), section five of this article.
(42) "Medical physician" means a medical doctor licensed by,
or eligible to be licensed by the West Virginia board of
medicine.
(43) "Medical professional liability" means any liability
for damages resulting from the death or injury of a person for
any tort or breach of contract based on health care services
rendered, or which should have been rendered, by a health care
provider or health care facility to a patient.
(44) "Medicare" means the federal medicare program.
(45) "Negligent" means marked by neglect or carelessness.
(46) "Noneconomic loss" means losses including, but not
limited to, pain, suffering, mental anguish and grief.
(47) "Nonprofit hospital" means a hospital organized and
licensed as a nonprofit hospital or hospital corporation.
(48) "Obstetrics" means that medical discipline dealing with
pregnancy, labor and delivery and generally defined and certified
by the American board of obstetrics and gynecology.
(49) "Operation" means a surgical procedure carried out on
a living body, generally involving the use of instruments,
anesthesia and sterile technique.
(50) "Operative procedure" means an operation.
(51) "Osteopathic physician" means a practitioner of
osteopathic medicine licensed by, or eligible to be licensed by,
the West Virginia board of osteopathy.
(52) "Pediatrics" means a health care specialty dealing with
the health care of children, and generally defined and certified
by the American board of pediatrics.
(53) "Peer review" means critical review of the medical
records or the services of health care providers by similar
providers who were uninvolved in those records or care.
(54) "Physical therapy" means that health care practice
dealing with the evaluation and treatment of disease processes
and trauma by the use of physical agents, the education for which
is generally defined and certified by the American physical
therapy association.
(55) "Practitioner" means a person providing health care
services.
(56) "Preauthorization" means prior approval.
(57) "Present value of future damages" means an estimation
of future losses resulting from an injury, assuming that their
dollar value will remain constant.
(58) "Primary care" means a health care service dealing with
a wide range of common health care problems, and serving as a
source of referral when specialty health care services are
necessary.
(59) "Primary care physician" means a physician providing
primary care services.
(60) "Primary care provider" means any health care provider
engaged in primary care services.
(61) "Privilege" means permission granted to a health carepractitioner to render specific patient care services in a
hospital, including access to the hospital, its facilities and
personnel.
(62) "Probable cause" means facts or circumstances that
would lead a reasonable person to conclude that a charge or
accusation is well-founded.
(63) "Procedure" means a specific, defined health care
service.
(64) "Professional service" means a procedure or function
performed by a licensed health care provider in the course of
practicing his or her profession.
(65) "Progressive copayments" means a schedule of copayments
whose dollar amount becomes greater with increasing personal
income.
(66) "Provider" means a licensed health care practitioner
performing medical procedures and services.
(67) "Public roadway" means any road or right-of-way
accessible to members of the general public.
(68) "Punitive damages" means exemplary or vindictive
damages awarded against a party in a civil action to penalize
egregious behavior and to provide deterrence against similar
future conduct by any party. Punitive damages do not include
damages awarded for injury or loss.
(69) "Radiation therapy" means that medical practice dealing
with the treatment of disease by means of radiation and
radioactivity.
(70) "Rebate" means a return of part of a payment,
specifically a return of part of a health care premium in return
for healthy behavior.
(71) "Rehabilitative services" means health care services
involving multiple health care providers and disciplines in a
single setting for the purpose of assisting patients to recover
independence after catastrophic injuries or diseases.
(72) "Reinsurance" means insurance purchased by an insurer
to indemnify that insurer against unanticipated losses due to
claims made.
(73) "Responsible provider" means that health care provider
who made the decision to perform a restricted procedure.
(74) "Seat belt" means a system of straps or other
restraints designed to reduce injury in case of a motor vehicle
accident, approved for that purpose by the national highway
traffic safety administration, and used according to the
manufacturer's instructions.
(75) "Severity of disease" means a degree of illness
creating an atypical consumption of services or length-of-stay.
(76) "Single payor" means a government agency acting as a
single statewide insurer.
(77) "Skilled nursing services" means a level of nursing
care requiring the services of professional licensed and
registered nurses.
(78) "Specialty service" means a health care service
intended to provide care for particular types of patients ordiseases, or to perform particular health care procedures.
(79) "Statistical records" means collections of numerical or
quantitative data and the mathematical analysis thereof.
(80) "Standard fees" means fees established pursuant to
section seven of this article.
(81) "Substandard care" means health care which does not
exhibit that degree of care, skill and learning required or
expected of a reasonable, prudent health care provider in the
profession or class to which the health care provider belongs,
acting in the same or similar circumstances.
(82) "Surgery" means that specialty of medicine concerned
with diseases and conditions requiring or amenable to operative
procedures.
(83) "Surgical" means of or pertaining to surgery.
(84) "X-ray studies" means diagnostic imaging procedures
involving the use of X-rays.
§16-29E-5. Health care cost review authority.
(a) In addition to its rights and duties under chapter
sixteen, article twenty-nine-b of this code, the West Virginia
health care cost review authority, hereinafter referred to as the
board or as HCCRA, shall assume the rights and duties created
under this article. Unless specifically so stated, the
additional requirements of this article shall not in any way
modify the existing activities, procedures or obligations of the
board.
(b) The HCCRA medical advisory committee is herebyestablished. The HCCRA medical advisory committee shall consist
of seven members, all of whom shall be health care providers
licensed to practice in the state of West Virginia. One such
member shall be selected by the dean of the West Virginia
university school of medicine, one shall be appointed by the dean
of the Marshall university school of medicine, one shall be
appointed by the dean of the West Virginia school of osteopathic
medicine, one shall be appointed by the West Virginia state
medical association, one shall be appointed by the West Virginia
osteopathic association and two shall be appointed by the board.
The board shall consult with and receive the opinion of the
medical advisory committee prior to taking action on any matter
for which that committee's advice is required under this article.
Actions or policies established by HCCRA in accordance with
this article shall be consider rules subject to the provisions of
article three, chapter twenty-nine-a of this code.
(c) The additional funding requirements created by this
article shall be met by an assessment on the health care
providers, accident and sickness insurers and health maintenance
organizations regulated herein, on a pro rata basis using the
gross revenues of each provider and insurer. The amount of this
assessment shall be determined by the board, but in no case may
any obligation exceed one tenth of one percent of the gross
revenues of any entity. Such fees shall be paid to the state tax
department on or before the first day of July in each year and
shall be deposited into that special fund designated as the"health care cost review fund," with the moneys so collected
being expendable after appropriation by the Legislature for
purposes consistent with this article.
The state tax department shall make such deposits as an
aggregate and shall not disclose or make public the separate
payments or gross revenues of the providers regulated under this
article.
§16-29E-6. Incentives to modify unsafe behavior.
(a) Seat belt use mandatory:
(1) No person may operate a motor vehicle on a public
roadway within the state of West Virginia unless each occupant of
that vehicle is wearing a seat belt or is otherwise protected by
a passive restraint device approved by the national highway
traffic safety administration, except as provided in subdivision
(4) of this subsection.
(2) A person operating a motor vehicle in violation of this
subsection is guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not more than twenty-five dollars. This
subsection shall not be enforced unless a vehicle is stopped
because of a separate moving violation or is involved in a motor
vehicle accident in which a person is injured.
(3) In a motor vehicle accident in which a person not
wearing a seat belt is injured, except as provided in subdivision
(4) of this subsection, the failure to wear a seat belt shall be
considered an act of negligence and a cause of injury separate
and distinct from the cause of such accident. The purpose ofthis paragraph being to discourage the negligent failure to wear
a seat belt, and to place the financial and other consequences
for such negligence upon the responsible negligent party, it is
hereby stipulated that, unless they are one-and-the-same person,
the person responsible for the occurrance of an accident and the
person responsible for the failure of an injured party to wear a
seat belt shall not be considered joint tort feasors or be in any
other way financially coresponsible for the separate financial
obligations specified below. Therefore, although an injury or
injuries sustained by a motor vehicle passenger not wearing a
seat belt may be single and indivisible, financial responsibility
for such an injury or injuries is deemed to be multiple and
divisible, and shall be determined, divided and assigned as
follows:
(i) The total monetary damages resulting from such injury or
injuries shall be determined and the sum of five thousand dollars
shall be subtracted from the total so determined. This sum shall
be the responsibility of the injured person and no third party
payor shall be obligated to reimburse the injured person for the
initial five thousand dollars in damages.
(ii) If any monetary damages remain after step (i) above,
the amount shall be determined by which the injury or injuries so
sustained would probably, though not necessarily, have been
mitigated or prevented if the injured person had been wearing a
seat belt. In making this determination, averages from similar
accidents, other applicable statistical data and pertinent experttestimony shall be considered.
(iii) The balance of damages, if any, remaining after step
(i) above shall be reduced by the amount determined in step (ii)
above.
(iv) The amount of liability remaining after step (iii)
above, if any, is the amount which is due to the accident per se
and shall be the obligation of the person or persons whose
negligence caused the accident in which the injury or injuries
were suffered.
(v) The first five thousand dollars of damages, as specified
in step (i) above, plus the amount that seat belt usage would
probably have reduced damages, as determined in step (iii) above,
shall be the total amount of liability for the injury or injuries
due to the failure to wear a seat belt, and shall be the
obligation of the injured person, or of the person financially
responsible for the actions of the injured person if the injured
person is other than a competent adult.
(4) Under the following circumstances, the failure to wear
a seat belt shall be neither a violation of this article nor an
act of negligence subject to the provisions of subdivision (3) of
this subsection:
(i) If a passenger has a bona fide medical condition which
reasonably prevents the wearing of a seat belt, the failure of
that passenger to wear a seat belt shall not be a violation of
this act, nor, if that passenger is injured in a motor vehicle
accident, shall the provisions of subdivision (3) of thissubsection apply. After consultation with the medical advisory
committee, the board shall prepare a list of medical conditions,
if any, which would reasonably prevent the wearing of a seat
belt. In the case of an injury sustained in a motor vehicle
accident by a person not wearing a seat belt, the burden of proof
shall be on the person seeking to establish that such a medical
condition actually existed at the time of the injury.
(ii) If, under applicable federal or state laws, a vehicle
is not required to be equipped with seat belts, the provisions of
this subsection shall not apply.
(iii) If an accident is caused by the negligence of a person
illegally operating a vehicle under the influence of alcohol or
any other intoxicating or illegal substance, or if an accident
occurs due to intentional or wanton recklessness, or if an
accident occurs due to the negligence of an unlicensed driver or
a driver whose license is under suspension at the time of the
accident, the provisions of subdivision (3) of this subsection
shall not apply.
(b) Smoking restricted and tobacco advertising prohibited in
public places:
(1) In any indoor place accessible to members of the general
public, and during outdoor events accessible to members of the
general public at which those in attendance are seated or
otherwise positioned closely together, smoking shall be
prohibited except in designated smoking areas. Persons under the
age of eighteen years may not enter designated smoking areasunless accompanied by a parent or guardian. Any person violating
any provision of this paragraph is guilty of a misdemeanor, and,
upon conviction thereof, shall be fined not more than twenty-five
dollars.
(2) To meet the requirements of subdivision (1) of this
subsection, above, designated smoking areas must be clearly
marked, must be separate and discrete areas, must not, in the
aggregate, constitute more than fifty percent of the space within
the area they serve, must be so positioned or designed that smoke
therefrom will not significantly enter areas not designated as
smoking areas, and must not contain attractions or features
unavailable outside of smoking areas. Nothing contained herein
shall be interpreted to require the provision of a designated
smoking area within any public place or event, but, if a smoking
area be designated, it must comply with the requirements listed
herein. Any person, firm or corporation designating a smoking
area which fails to comply with the requirements of this
paragraph is guilty of a misdemeanor, and, upon conviction
thereof, shall be fined twenty-five dollars for the first offense
and an additional twenty-five dollars for each subsequent
offense.
(3) The advertising or promotion of cigarettes, cigarette
paper, cigars, pipes, snuff or chewing tobacco in any place
accessible to members of the general public under the age of
eighteen years is hereby prohibited. Any person, firm or
corporation violating any provision of this paragraph is guiltyof a misdemeanor, and, upon conviction thereof, shall be fined
one thousand dollars for the first offense and an additional one
thousand dollars for each subsequent offense.
(c) Insurance and public health incentives for wellness:
(1) After consultation with the medical advisory committee,
the board shall prepare, publish and update as necessary a
listing of those laboratory tests, X-ray studies, other
diagnostic procedures, immunizations and other disease-prevention
procedures, along with recommended frequencies for such tests,
studies and procedures, which it deems necessary and cost-
effective for routine health monitoring or disease prevention,
taking into account the diverse needs of the various subdivisions
of the population due to age, gender, occupation, geographical
location and the like.
The board shall further, on an annual basis, perform a
market study to determine and establish appropriate pricing for
each study and procedure so listed.
Each county board of health shall make such testing and\or
procedures available to any resident of the county or counties
which it serves at the prices determined by the health care cost
review authority. County boards of health may separately or
collectively designate or contract with private or public health
services, laboratories or the like to perform such testing. The
results of such testing shall be given directly to the person
tested, and shall not otherwise be released. County boards of
health shall not be obligated to provide medical advice regardingsuch health maintenance testing or procedures except as provided
in subdivision (2) of this subsection.
All third-party payors shall, without deductibles or
copayments, reimburse for the procedures so listed at the prices
so determined, within the frequencies so recommended.
If disease-prevention testing or procedures be performed by
health care facilities or providers other than county boards of
health or their designees, there shall be no obligation on third
party payors to reimburse for such services more than the amounts
determined by the board or at frequencies greater than those
designated by the board, nor is any third-party payor obligated
to pay for any disease-prevention service which is not listed by
HCCRA as necessary for that purpose.
(2) County boards of health shall make available to the
residents of the county or counties which they serve certain
types of generic medical information, as determined and
distributed by the health care cost review authority after
consultation with the medical advisory committee. Such
information may be in written, audio or visual form, and may be
disseminated as determined by HCCRA or the county boards of
health, including advertisements, mailings, literature displays,
classes, public forums or individual counseling.
HCCRA and the several county boards of health may provide
such health-related information as they deem appropriate, but,
after consultation with the medical advisory committee, shall, at
a minimum, provide information regarding the following topics:
(i) A list of primary care physicians and\or other primary
care providers who are accepting new patients within or near the
county served by that board of health, along with those
providers' education, board certification, hospital affiliations
and fee schedules, as reported under the requirements of section
seven of this article.
(ii) General information regarding exercise for
cardiovascular fitness, including specific fitness activities
with appropriate warnings and disclaimers.
(iii) General dietary information, including, at a minimum,
information on calorie restriction for the purpose of weight
control, dietary guidelines for control of salt intake and
dietary guidelines for the control of cholesterol.
(iv) Information and education regarding prenatal maternal
and fetal health, childbirth and parenting.
(v) Information regarding health-maintenance testing and
procedures as recommended under subdivision (1) of this
subsection, including the list of the procedures so recommended,
the general reasons for each such test or procedure and, in
general terms, appropriate responses to the results thereof.
(3) After consultation with the medical advisory committee,
the board shall establish a health insurance rebate program to
reward individuals who maintain healthy habits and lifestyles.
Such rebates shall be up to two hundred dollars per year for any
individual, and shall be based on objective criteria indicative
of beneficiaries' health-related behavior rather than theiractual state of health. Such criteria shall include control of
existing health problems, participation in exercise programs,
currency of vaccinations, control of body weight, avoidance of
substance abuse, tobacco usage, and motor vehicle violations, and
such additional factors as the board shall establish.
§16-29E-7. Fee and payment schedules.
(a) Establishment of a standard payment schedule for health
care providers and health insurers:
(1) The board shall establish and publish a standard
provider reimbursement schedule. This schedule shall establish
standard fees for all health care procedures which are performed
more than one hundred times annually within the state of West
Virginia and for which the board determines that insurance
reimbursement is appropriate. In establishing this schedule, the
board shall consider the following factors:
(i) The payment schedule shall be uniform statewide and
should provide similar reimbursement for similar services
provided by practitioners of similar experience, training and
skill.
(ii) The payment schedule shall provide additional
incentives for primary care, particularly in underserved areas.
(iii) To the extent possible without reducing the
availability of specialty and surgical health care services
within the state, the payment schedule shall attempt to reduce or
eliminate existing incentives to perform operative and other high
cost procedures.
(iv) The payment schedule shall not be so low as to reduce
or discourage the availability of health care under the
circumstances defined in subdivision (2) of this subsection, in
which balance billing is unlawful.
(2) Under the following circumstances, the payment schedule
determined pursuant to subdivision (1) of this subsection shall
be the fixed fee which providers must accept as payment in full,
and copayments or balance billing shall be unlawful except as
noted:
(i) For health care delivered in true emergencies, defined
as follows, the payment schedule shall be mandatory.
After consultation with the medical advisory committee, the
board shall develop and publish a list of those health problems
and circumstances which it deems to constitute true medical
emergencies. It shall be presumed that under such defined
emergency circumstances there should exist no cost-related
obstacle to health care, that health care consumers should
consider time rather than cost in the selection of health care
services and that health care providers and facilities should
cooperate rather than compete to assure the delivery of timely
health care.
(ii) For health care services provided to individuals who
are not mentally competent because of age or any other reason to
make informed, cost-conscious health care choices, the standard
payment schedule shall be mandatory.
(iii) For health care services provided to individuals whosefamily income is less than twice the defined federal poverty
level, any payment beyond carefully defined, progressive
copayments may constitute a barrier to health care. Under such
circumstances, the standard payment schedule developed pursuant
to this subsection shall be mandatory, provided that the board
may allow or require small copayments and\or deductibles, but
balance-billing beyond the standard fees and copayments so
established shall be prohibited.
(iv) For professional fees for ancillary hospital services,
both inpatient and outpatient, including, specifically, fees for
the interpretation of imaging procedures, electrocardiograms,
laboratory services and other services for which a professional
service by other than the attending physician is required by
hospital policy, regulation or law, the standard payment schedule
developed pursuant to subdivision (1) of this subsection shall be
mandatory.
(3) In order to encourage appropriate cost-based shopping by
health-care consumers, under no circumstances other than those
specifically stated in this article shall the standard fee
schedule established pursuant to subdivision (1) of this
subsection be binding upon health care consumers, providers or
insurers.
(b) Reporting and publishing of provider fees and
third-party reimbursement rates:
(1) On or before the first day of January of each year, all
insurers shall publish and distribute to all policyholders theirpayment schedules for common medical services and procedures, and
shall additionally make such information available to any member
of the public upon request. Such payments shall be uniform
throughout the state of West Virginia for providers of similar
training and skill. Additionally, insurers shall upon request
advise policyholders of their payment for any procedure. Such
payments shall be at least equal to the standard fee developed by
the board, less any policy-specific cost-sharing adjustment.
(2) On or before the first day of January of each year, each
health care provider licensed in the state of West Virginia shall
furnish to the board, and make available to any member of the
public upon request, the C.P.T. codes and fees for the twenty-
five procedures he or she most frequently performed during the
previous calendar year. Additionally, each provider shall
furnish to the board his or her fees for such other services as
the board may request and shall, upon the request of any patient,
advise that patient of the fee for any contemplated procedure or
service not so reported. Fees may be lowered for selected
patients, but providers may charge no patient more for any
procedure than the fee reported to the board for that procedure
during the applicable calendar year.
(3) The board shall compile the information it receives
pursuant to this subsection and shall distribute it to all county
boards of health, to all hospitals within the state, and to any
member of the general public upon request. Additionally, the
board shall develop useful price indices--such as the total feesfor a standard surgical procedure or the fees for a week of
hospital care to treat a nonsurgical medical problem--appropriate
to various types and specialties of health care providers, so
that members of the public may have meaningful information
regarding out-of-pocket cost differences between specific health
care providers.
§16-29E-8. Malpractice reform.
(a) Nonjudicial remedies for substandard health care.
(1) Upon the written complaint of any person, professional
organization, hospital administrator, hospital board of
directors, peer review organization, peer review committee,
health insurance company or health-related government agency to
any health care licensing board alleging that a health care
practitioner licensed thereby has failed to exercise that degree
of care, skill and learning required or expected of a reasonable,
prudent health care provider in the profession or class to which
the health care provider belongs, that licensing board shall
investigate the complaint in sufficient detail to determine
whether there is probable cause to believe that such a failure
occurred.
To make a determination under this article that a provider
has failed to follow the accepted standard of care, it is not
relevant whether such failure resulted in injury to or the death
of any patient.
In making such a determination, the licensing board may
employ the assistance, advice and council of such persons as itdeems necessary for the proper evaluation of the complaint.
Additionally, the licensing board may obtain medical records from
such sources as it deems necessary for the proper evaluation of
a complaint.
Any physician-patient privilege does not apply in any
investigation under this subsection while a licensing board is
acting within the scope of its authority:
Provided,
That the
disclosure of any information under this subsection shall not be
considered a waiver of any such privilege in any other
proceeding:
Provided, however,
That any medical records which
pertain to a person who has not expressly waved his or her rights
to the confidentiality of such records may not be open to the
public.
Upon the determination that there is probable cause to
believe that substandard care has occurred, the licensing board
shall notify the practitioner of such determination. The
practitioner has fifteen days to provide written comments on the
findings of the board, which comments shall remain part of any
record regarding the complaint. After review of such comments,
the board may uphold, revise or reverse its determination.
The complaints to and records of any licensing board
pursuant to this subsection are not open to the public nor may
any determination based on the complaint or its investigation be
the basis of any disciplinary action except, for physicians and
podiatrists, through subsequent disciplinary procedures specified
in section fourteen, article three, chapter thirty of this code,and for other practitioners under the established disciplinary
procedures of their respective licensing boards.
(2) Upon the basis of any such complaint, a licensing board
may further investigate the professional competence of any health
care practitioner licensed by that board, according to the
procedures specified within this subsection or according to the
procedures of section fourteen, article three, chapter thirty of
this code. If any licensing board finds probable cause to
believe that a violation of the standard of care specified in
subdivision (1) of this subsection has occurred in three separate
complaints regarding any licensee of that board during the most
recent five year period, or if three or more judgments arising
from medical professional liability have been rendered or made
against any health care practitioner during the most recent five
year period, that licensing board shall initiate an investigation
according to the procedures specified within this subsection.
(3) Further investigation by any licensing board under this
subsection shall be to determine whether a health care provider
generally exercises that degree of care, skill and learning
required or expected of a reasonable, prudent health care
provider in the profession or class to which the health care
provider belongs, acting in the same or similar circumstances.
In an investigation under subdivision (3) of this
subsection, the licensing board shall obtain and review records
relevant to a provider's services within the most recent six
month period. Such records shall include any disciplinaryactions by peer review organizations, hospitals, professional
societies and malpractice carriers. Additionally, the licensing
board shall review a sufficient number of randomly selected
hospital or outpatient medical records to ascertain the scope of
practice and practice habits of the subject provider.
In such investigation, the licensing board may employ such
persons as it deems necessary to compile and evaluate the
information so obtained. At a minimum, the records so obtained
shall be reviewed by a health care provider who is actively
practicing in the same or an essentially similar medical field as
the subject health care provider.
If, after a review of the above information, the licensing
board determines that the provider under investigation generally
fails to meet the accepted standard of care, resulting in
unnecessary or unusual risks or injuries to patients, it shall so
advise the subject provider, including a specific listing of the
alleged deficiencies. The subject provider has thirty days from
the receipt of such notification to respond to the findings of
the board.
If the subject provider accepts the findings of the
licensing board, the board shall immediately impose appropriate
sanctions upon the provider within the scope of its authority
under article three, chapter thirty of this code, in the case of
physicians and podiatrists, or under the applicable laws
referable to other licensing boards.
If the subject provider disputes the conclusions of theboard, the board shall consider the provider's written response
to the alleged deficiency or deficiencies. If, after such
consideration, the board continues to find disputed deficiencies,
it shall initiate formal disciplinary proceedings, which, for
physicians or podiatrists shall be under section fourteen,
article three, chapter thirty of this code, charging the subject
provider with professional incompetence.
(b) Optional pretrial review of health-related professional
liability claims.
(1) Medical liability review commission created:
(i) There is hereby created a medical liability review
commission as an independent agency within the executive branch.
The commission shall consist of five members, of whom one shall
be a medical or osteopathic physician licensed to practice in the
state of West Virginia, and one shall be a registered nurse
licensed to practice in the state of West Virginia. Members
shall be compensated as provided in the state budget from that
fund created in subdivision (iv) of this subsection, and known as
the medical liability review fund.
(ii) Members shall be appointed by the governor with the
advice and consent of the Senate from the list of candidates
submitted by the nominating bodies specified in subdivision (iii)
of this subsection. The governor shall designate one member
whose initial term of office shall be one year, one member whose
initial term shall be two years, one member whose initial term
shall be three years, one member whose initial term shall be fouryears, and one member whose initial term shall be five years.
Upon the completion of any member's term, he or she shall be
replaced by a nominee of the same body as nominated the member
whose term expired. After the initial appointments, the term of
office of all members shall be five years. Members shall be
eligible for reappointment and shall be removable by the governor
for neglect of duty or malfeasance in office, but for no other
cause. Annually, the governor shall designate one of the members
to serve as the chairperson of the commission. The chairperson
shall assume such additional powers and duties as the commission
shall determine, except that the chairperson shall exercise no
more than one vote on any matter before the commission.
(iii) Nominations for appointment to the commission shall be
as follows: For one position on the board, the West Virginia
medical association shall nominate two persons, of whom the
governor may appoint one, with the advice and consent of the
Senate; for one position, the West Virginia nursing association
shall nominate two persons, of whom the govenor may appoint one,
with the advice and consent of the Senate; for the remaining
three positions, the governor shall appoint such persons as he
may, subject to the advice and consent of the Senate.
(iv) There is hereby created in the state treasury a fund
known as the medical liability review fund. The funding
requirements of the medical liability review commission shall be
met by a tax of one tenth of one percent on all health care
related liability insurance providing coverage within the stateof West Virginia, plus such fees as the commission may assess for
its services and such funds as may be appropriated for this
purpose by the Legislature, all of which shall be placed into the
medical liability review fund, the moneys in which may be
expended by the commission after appropriation by the Legislature
for purposes consistent with this subsection.
(2) In addition to any other rights or duties created
herein, the medical liability review commission may:
(i) Adopt, amend and repeal necessary, appropriate and
lawful policy guidelines and rules in accordance with article
three, chapter twenty-nine-a of this code.
(ii) Meet, hold hearings, file complaints with health
provider licensing boards, and subpoena records, papers and
documents in connection therewith. The board may administer
oaths or affirmations in connection with any matter under its
jurisdiction.
(iii) Rent, purchase, maintain, sell, equip and assign
rights or dispose of any property consistent with the objectives
of the commission, subject to the approval of the Legislature.
(iv) Contract and be contracted with and execute all
instruments necessary or convenient in carrying out the
commission's functions and duties.
(v) Appoint such attorneys, claim reviewers, investigators
and other employees as are necessary for the proper performance
of its duties.
(vi) Delegate any of its powers to one or more of itsmembers or to one of its employees, provided that no opinion
regarding a specific legal action before it may be issued without
an affirmative vote thereon by at least three members of the
commission.
(vii) Apply for, receive, accept and expend on purposes
consistent with this subsection, gifts, payments and other funds
and advances from the United States, the state or any other
governmental body, agency or agencies or from any other private
or public corporation or person (with the exception of any
person, corporation, foundation or political action group
involved in the practice of medicine or law or primarily
identified or associated with legal or medical concerns) and
enter into agreements with respect thereto, including the
undertaking of studies, plans, demonstrations or projects,
provided that no such funds may inure in any respect to the
private benefit of any member of the commission.
(viii) Exercise all other powers which are reasonably
necessary to effect the express objectives of this article.
(3) Additional legislative directives:
(i) Upon the request of any party involved in a health-
related professional liability action, the commission shall,
within fifteen days, notify all parties to the action, plaintiff
and defendant, of its involvement therein.
(ii) Within thirty days of such notification, each party so
notified shall acknowledge such notification and shall provide
the commission with a summary of its position on the matter,along with the medical records, expert testimony and other
evidence it has developed in support of its position, and shall
from time to time update the information so provided if
substantial changes therein occur.
(iii) At any time that the commission determines that
additional facts or records concerning the matter in dispute are
needed, it may require, by subpoena, deposition or hearing, any
party to the action, or any third party, to provide such
information.
(iv) At any time, the commission may determine that it has
sufficient information to render an opinion about a matter before
it, whereupon it may issue an opinion subject to subdivision (4)
of this subsection.
(v) The commission shall be notified within forty-eight
hours if a trial date be set on any matter which is before the
commission. In any matter before the commission, at least sixty
days shall be allowed between such notification and the trial
date. Upon such notification, the commission shall require from
all parties to the case any evidence not previously provided
which may be considered at trial.
(vi) At least fourteen days prior to a trial date for any
matter before it, the commission shall render an opinion on the
matter, subject to the provisions of subdivision (4) of this
subsection.
(vii) An opinion of the medical liability advisory
commission may be introduced as evidence at any trial decidingany matter which has come before the commission by any party to
the action, defendant or plaintiff. If it be introduced, it
shall be introduced in its entirety, along with any supporting
material supplied by the commission. The failure of a majority
of the commission to agree on any specific matter shall not be
made known to the jury.
(4) Opinions of the commission shall not be issued without
the affirmative vote of at least three members of the commission.
Such opinions shall include a statement that the commission was
created by the Legislature to assure that juries adjudicating
malpractice cases have access to objective medical information,
and shall further include the names, occupations and method of
appointment of the members of the commission and the fact that
the commission's opinion is advisory in nature, the actual
decision being entirely the jury's. The opinion shall further
include a statement as to the percentage of cases in which the
commission's opinion has favored the plaintiff in an action, the
percentage which has favored the defendant, and the percentage in
which the commission has been unable to render an opinion.
Additionally, the opinion may include any, or all, of the
following:
(i) Answers to specific questions asked by any party to the
action;
(ii) An opinion supporting the position of any of the
parties to the action;
(iii) Recommendations as to the nature and extent ofeconomic damages suffered by any party to a case;
(iv)Recommendations as to the merit of any claim for
punitive damages;
(v) Information in written, printed, audio or visual form
bearing on any question which the board considers important to
the matter in dispute, including any explanatory remarks
concerning such information which the board may see fit to attach
thereto.
(5) Any member of, employee of, person under contract with
or person providing information to the commission, if acting in
good faith, is immune from suit under any law of this state or
political subdivision thereof for any act or decision made in
such capacity.
(6) Pursuant to the provisions of section four, article ten,
chapter four of this code, the medical liability review committee
shall continue to exist until the first day of July, one thousand
nine hundred ninety-eight, to allow for a completion of an audit
by the joint committee on government operations.
(c) Limit on liability for noneconomic loss.
In any medical professional liability action brought against
a health care provider, the maximum amount recoverable as damages
for noneconomic loss may not exceed two hundred fifty thousand
dollars.
(d) Periodic payment of future damages.
If the present value of all future damages awarded in any
health care related professional liability action exceeds twohundred fifty thousand dollars, the award shall be made in
accordance with a periodic payment schedule with the yearly
amount based on the life expectancy of the claimant. The court
may require the defendant to purchase an annuity making the
awarded yearly amounts if the court finds that the defendant may
not pay the awarded yearly amounts. Payments for future damages
shall cease in the event of the death of the claimant.
The parties may agree, with the approval of the court, to a
lump sum payment.
(e) In actions for injuries alleging medical professional
liability, contingent attorney fees are limited as follows:
(1) If an action is settled prior to the mandatory status
conference required in section six, article seven-b, chapter
fifty-five of this code, the plaintiff may not be required to pay
contingent attorney fees in excess of ten thousand dollars. In
calculating such fees, reasonable expenses shall first be
deducted.
(2) If an action is settled before or during trial, the
plaintiff may not be required to pay contingent attorney fees in
excess of twenty percent of any settlement, after reasonable
expenses have been deducted.
(3) If an action is adjudicated at trial, the plaintiff may
not be required to pay contingent attorney's fees in excess of
twenty-five percent of any award, after reasonable expenses have
been deducted.
(f) Joint and several liability:
(1) When factors other than medical professional liability,
such as the patient's preexisting medical condition or the
actions of individuals other than the health care provider,
including the patient, contribute to the patient's injury, the
health care provider's liability shall be limited to the extent
of his or her responsibility for the injury, as determined by the
jury.
(2) When a judgment of joint and several liability is
entered in a medical professional liability action, the total
dollar award to any plaintiff shall be reduced by a dollar amount
equal to the percentage of negligence and liability attributed by
the court or jury to any defendant who entered into a good faith
settlement with the plaintiff prior to the jury's report of its
findings to the court or the court's findings as to the total
dollar amount awarded as to damages, multiplied by the total
dollar award to any plaintiff. The remaining dollar amount of
the award shall be the obligation of the remaining jointly and
severally liable defendants.
(g) Punitive damages:
(1) Punitive damages shall be awarded in medical
professional liability actions only for egregious behavior that
is truly shocking, and where the evidence leaves no serious or
substantial doubt that the defendant in the action acted with
intent to cause serious injury to the plaintiff or acted with a
flagrant indifference to the rights of the plaintiff and with an
awareness that such conduct would result in serious injury to theplaintiff.
(2) If punitive damages are assessed in any medical
professional liability action, only the first ten thousand
dollars thereof shall be awarded to the plaintiff in that action.
Any punitive damages in excess of ten thousand dollars shall be
deposited into that special fund of the state of West Virginia
known as the "crime victims compensation fund," to be expended as
appropriated by the Legislature.
(h) Collateral sources:
(1) In any action finding medical professional liability,
the amount of economic damages shall be reduced by the total of
all amounts which have been paid or shall be paid for the benefit
of the claimant or which are otherwise available to him as a
result of the injury, from all collateral sources.
(2) Except for payments out of earned income to the United
States government pursuant to the federal Social Security Act,
any reduction because of sums paid to the claimant by a
collateral source shall be offset by any amount which has been
paid, contributed or forfeited to the collateral source by the
claimant in order to secure the claimant's rights to the sums
paid by the collateral source.
(i) Filing requirement of certification of merit:
Upon the filing of a medical professional liability action
against a health care provider, the attorney bringing the action
on behalf of the patient or his representative shall attach to
the complaint an affidavit stating that a qualified health carepractitioner practicing in the same or similar field of medicine
as each defendant health care provider has prepared a written
report which reflects his or her belief that there is a
"reasonable and meritorious cause for filing such action" and a
copy of such report shall be attached thereto.
§16-29E-9. Prioritization of health care spending.
(a) Mandatory standard health benefits plan
After consultation with the medical advisory committee and
the insurance commissioner of West Virginia, HCCRA shall
establish and periodically update a standard health benefits plan
which shall apply to every health insurance program and prepaid
health care plan operating within the state of West Virginia and
subject to the regulatory authority thereof. The standard plan
shall include alternatives of approximately equal cost per
covered individual, to allow the consumer choices specified in
section fourteen of this article. The plan shall include all of
the following:
(1) A listing of those services and circumstances for which
there shall be full payment without deductibles, copayments or
other contribution by insurees, which shall be those services and
circumstances specified previously in this article or elsewhere
within the code of West Virginia. For any service so specified,
the board may stipulate the price thereof, which shall be binding
on all health care providers and institutions within the state of
West Virginia unless otherwise noted in this article.
(2) A listing of other covered services and benefits,including such limitations on total payments, number of visits,
number of inpatient days and the like as the board may stipulate.
(3) A progressive scale of copayments and other
contributions by insurees for health care services not covered
under subdivision (1) of this subsection, based on family income.
Such payments shall be sufficiently large to encourage serious
consideration before seeking such health care services, but shall
not be so onerous as to create serious financial injury to
prudent beneficiaries. Such copayments shall be made to the
insurance carrier rather than to the health care provider. Such
copayments shall be so structured as to encourage less costly
health care choices, such as higher copayments for emergency room
services, for name brand drugs or otherwise more costly
medications, and the like.
(4) A list of services which are not covered under any
circumstances, or under limited circumstances. In the case of
procedures approved under limited circumstances, those
circumstances shall be specifically enumerated by the board,
shall be based on specific objective criteria and shall be
subject to the reporting requirements of this section.
(5) A list of services, in a specific order of priority,
which the board deems to be marginally cost-effective compared
with alternative health care expenditures. If the board
determines that insurance coverage of any or all such procedures
compromises the delivery of more cost-effective health care
services, the board may, after consultation with the medicaladvisory committee, discontinue coverage of such procedures,
according to the order of priority so established, subject to the
provisions of article three, chapter twenty-nine-a of this code.
(6) Nothing contained herein shall be construed to prevent
any insurer from offering coinsurance which provides for the
coverage of services limited or excluded under the standard
health benefits plan created herein.
(b) Reporting of restricted procedures.
(1) HCCRA shall create a list of technologies and procedures
deemed to be so costly or so subject to overutilization as to
require specific monitoring and control, including those
procedures listed pursuant to subdivision (4), subsection (a) of
this section. After consultation with the medical advisory
committee, the board shall establish a list of specific
indications for the use of any technology or the performance of
any procedure so indicated, such indications to be based on
specific, objective criteria rather than vague concepts such as
"medical necessity." Any technology or procedure so identified
shall be subject to the reporting requirement of this section.
(2) HCCRA shall promulgate and distribute a form for the
reporting of restricted procedures and/or the use of restricted
technologies, as specified in subdivision (4), subsection (a)
and subdivision (1) of this subsection of this section. Such
form shall be no larger than 8 1/2"x11." It shall be used by all
providers and all insurers to report all procedures restricted
under this article, except as provided herein.
(3) Prior to the performance of any procedure restricted
under subdivision (4), subsection (a) or subsection (1) of this
subsection of this section, the provider responsible for the
performance of such procedure shall complete the form created in
subdivision (2) of this subsection, and shall upon such form
provide an initial statement specifying the applicable indication
for such procedure as established by HCCRA. The responsible
provider shall assure that such form is forwarded to HCCRA, by
mail or otherwise. Additionally, a copy of the completed form
and attachments thereto shall accompany any request for payment
for the restricted service.
It may not be required that the initial statement specifying
the applicable indication for the restricted procedure include
documentation of such indication, nor may it be required that
such statement include any other medical history or medical
records. Unless otherwise expressly permitted or required by
law, no party may require preauthorization for such restricted
procedures or withhold payment for such procedures pending the
receipt or review of medical records or other documentation, nor
may preauthorization be required for any covered service not
subject to restriction under this section, by any insurer.
No person or insurer may be required to pay for the
performance of any restricted procedure until that person or
insurer has received a copy of the completed restricted procedure
reporting form.
(4) If a health care provider believes that a restrictedprocedure should be performed for reasons other than an
indication recognized by HCCRA, he or she may request
preauthorization for that procedure from a reviewing authority
which HCCRA shall designate for that purpose.
(5) A restricted procedure shall not be performed for
reasons other than an indication recognized by HCCRA without such
preauthorization unless the patient has knowingly signed a
consent form acknowledging that the procedure is being performed
for reasons inconsistent with the health care policies of the
state of West Virginia and that no third party payor may
reimburse for such services.
(6) HCCRA shall keep statistical and other records on all
health care providers reporting restricted procedures, and shall
review a sufficient number of cases involving restricted
procedures to assure general compliance with this article. In so
doing, HCCRA shall:
(i) Review in detail a small number of randomly selected
cases.
(ii) Review cases regarding which a specific complaint has
been received, provided that the cost for such investigation may
be imposed on the person or entity so complaining if the
complaint is not found by the board to be valid.
(iii) Review cases chosen because of any pattern,
statistical or otherwise, which the board feels may indicate
improper utilization of restricted procedures by any provider.
(7) In reviewing any case under this article, the boardshall obtain from any source such medical records and reports as
it requires to ascertain whether the responsible provider's
statement specifying the approved indication for the restricted
procedure was factual. Any physician-patient privilege does not
apply in any investigation under this section while the board is
acting within the scope of its authority:
Provided,
That the
disclosure of any information under this section shall not be
considered a waiver of any such privilege in any other
proceeding:
Provided, however,
That any medical records which
pertain to a person who has not expressly waived his or her
rights to the confidentiality of such records may not be open to
the public.
If it is determined that the responsible provider's
statement was substantially accurate, the review shall be
complete. In making such determination, the benefit of any
reasonable doubt shall go to the subject health care provider.
If it is determined that the responsible provider's
statement was inaccurate, the board shall notify the subject
provider of a finding of noncompliance and shall review such
additional cases as are necessary to determine whether a pattern
exists indicating intentional or negligent abuse of restricted
procedures by the subject provider. If, in the opinion of the
board, such a pattern exists, or if, after the first notice of
noncompliance, repeated instances thereof are detected, HCCRA may
file a complaint with the appropriate licensing board, to suspend
the subject provider's prerogative to order or perform restrictedprocedures pending disciplinary procedures by the licensing
board, or to pursue civil remedies specified in section seventeen
of this article.
(8) In the absence of an approved indication to perform any
procedure restricted by HCCRA under this section the failure to
perform such procedure may not be considered negligence in any
action alleging medical professional liability:
Provided,
That
in such action, the question of whether such an indication
actually existed is an open question of fact.
(c) Control of bureaucracy.
HCCRA shall undertake a study of the potential cost savings
that might result from consolidating the various bureaucratic
functions that regulate and control health care activities. The
study shall include:
(1) The potential cost savings which might result from the
development of a single-payer reimbursement system within the
state of West Virginia.
(2) The extent to which the regulations of medicare,
medicaid and private regulatory agencies could be combined into
a single set of rules, and the savings potentially resulting
therefrom.
(3) The extent to which the inspections required by various
public agencies and private groups could be performed by the same
group of inspectors or during the same period of time, and the
savings potentially resulting therefrom.
(4) The extent to which peer review activities in WestVirginia could be consolidated under a single agency and
redirected towards the identification and mitigation of serious
breeches of a standard of care rather than technical
deficiencies.
(5) The identification of other potential cost savings or
improved quality control that might result from the mitigation of
redundancy, conflicting regulations and/or waste in the health
care bureaucracy.
(6) Specific recommendations for legislation to effect such
potential savings or improvements, if any, such recommendations
to be made to the Legislature on or before the first day of
January, one thousand nine hundred ninety-four.
§16-29E-10. Inappropriate financial incentives.
(a) Contingent fees; financial credentialing.
No entity may employ, contract with, otherwise remunerate,
or grant benefits or privileges to any health care practitioner
for professional services, nor may any health care practitioner
knowingly enter into any such relationship, where such
employment, contract, remuneration, benefit or privilege, or the
level thereof, is contingent in any way upon the ordering or
performance by the practitioner of particular types, numbers or
quotas of laboratory, diagnostic, surgical or other procedures or
services based on their dollar value, profitability or other
economic consideration, or where the level of compensation is
contingent in any way on the withholding of such procedures or
services, except that the remuneration or compensation of healthcare providers based on the number of hours worked, the number of
patients treated, or the fees for professional services which are
personally performed by the health care practitioner are not
affected by this section.
(b) Physician self-referral prohibited.
(1) Except as provided in subdivision (4) of this
subsection, no health care practitioner may refer any patient for
any service designated in subdivision (3) of this subsection to
any entity in which the health care practitioner has an
investment interest or other interest such that the referral of
that patient would financially benefit the health care
practitioner other than by the payment of fees for professional
services personally performed by the practitioner.
(2) Except as provided in subdivision (4) of this
subsection, no health care provider may profit from or enjoy any
other personal financial gain, directly or indirectly, from any
service performed by or at the instigation of or upon the order
of that provider and designated in subdivision (3) of this
subsection.
(3) The services subject to the prohibitions of this
subsection are:
(i) Physical therapy services;
(ii) Rehabilitative services;
(iii) Clinical laboratory services;
(iv) Diagnostic imaging services; and
(v) Radiation therapy services.
(4) The following services and circumstances are exempt from
the provisions of this section:
(i) A health care practitioner may receive compensation for
procedures and services which are personally performed by the
health care practitioner;
(ii) Radiologists may receive compensation for diagnostic
imaging services which are performed by or under the supervision
of that radiologist if they are performed pursuant to a
consultation requested by another physician;
(iii) A pathologist may receive compensation for diagnostic
clinical laboratory tests and pathological examination services,
if such tests and services are furnished by or under the
supervision of the pathologist pursuant to a consultation from
another physician;
(iv) Recognizing the convenience and utility of having
available within practitioners' offices the services prohibited
herein, practitioners may provide such services or contract for
such services to be performed within their offices:
Provided,
That the office be physically separate from any facility offering
similar services, that the practitioner's aggregate profit or
other financial benefit from all such services taken together
shall be no more than five thousand dollars per annum, and that,
for services billed by the physician but performed by an entity
outside of the physician's practice, the physician may not charge
an amount above his or her cost for such services, except for a
five dollar fee for phlebotomy services and a two dollar fee forthe handling of other specimens.
HCCRA shall promulgate such rules and require such separate
accounting of financial activities related to restricted services
as to assure compliance with these provisions, subject to article
three, chapter twenty-nine-a of this code; and
(v) Physicians who are currently referring to entities in
which they have an investment interest or who are providing
services restricted by this section may continue to refer to such
entities and provide such services until the first day of
January, one thousand nine hundred ninety-six, but no physician
may enter into any new such referral pattern or begin to provide
any such service after the first day of January, one thousand
nine hundred ninety-three.
(c) HCCRA, working with the insurance commissioner, the
various health care provider organizations and the deans of West
Virginia's schools of medicine and osteopathy, shall reduce to
the extent possible the financial incentives for health care
providers to enter certain specialties rather than others, to
locate in certain areas rather than others and to make certain
diagnostic and therapeutic choices rather than others.
Recognizing that fees for various medical services are subject to
nation-wide pricing patterns beyond the control of this state or
any of its agencies, and that the consequences of driving such
services from West Virginia would be catastrophic, including the
loss of the economic activity created by such services and the
exodus from West Virginia of residents seeking such services,HCCRA shall, to the extent possible without significantly
compromising the availability of specialty and surgical health
care services within West Virginia, use the reimbursement rate-
setting authority and other powers granted in this article to:
(1) Minimize the financial incentives for particular classes
of health care providers to perform certain procedures as opposed
to cognitive and other services. Such fee adjustments should be
based on the time required for given classes of providers to
perform various services, and should include a combination of
reduced fees for procedures and increased fees for cognitive and
other nonsurgical services.
(2) Create incentives for primary care, including family
practice, internal medicine, pediatrics and obstetrics,
especially in underserved areas of West Virginia, by means of:
(i) Enhanced fee schedules for certain services in certain
areas, the provisions of paragraph (i), subdivision (1),
subsection (a), section seven of this article notwithstanding.
(ii) Recruitment of physicians into underserved areas,
including income guarantees, provision of office space,
malpractice insurance coverage and such other incentives as may
be necessary.
(iii) Relief from the provisions of the physician self-
referral and restricted services profit limitations created
above.
(3) Use any means necessary, subject to article three,
chapter twenty-nine-a of this code to:
(i) Inform the public of its rights under this article.
(ii) Educate the public in the use of the reimbursement
schedules and fee schedules created herein to make cost-conscious
health care decisions.
(iii) Encourage the public to make use of the wellness
incentives created herein, including the cost-free procedures and
medical information available through the various county health
departments.
(iv) Make the public aware of less costly alternatives in
health care services, including hospital rates, practitioner's
fees, alternative types of treatment and alternative health care
disciplines.
§16-29E-11. Health insurance overhead; guaranteed loss ratios.
(a) Premium rate approval.
After the first day of January, one thousand nine hundred
ninety-four, the insurance commissioner shall disapprove any
application for premium rate charges for any individual or group
accident and sickness insurance policy issued by any insurer
pursuant to chapter thirty-three of this code, or for any
contract or coverage issued by any health maintenance
organization pursuant to chapter thirty-three of this code, if
the overall premium rate structure for all health and accident
insurance or coverage issued within West Virginia by the insurer
or health maintenance organization making such application is not
in compliance with the following requirements:
(1) The expected ratio of claims incurred to premiums earnedby the insurer or health maintenance organization must be ninety
percent or greater. Any taxes on earned premiums and any costs
for reinsurance shall first be subtracted from the premiums
received before calculating this ratio:
Provided,
That to
qualify for this exemption, any reinsurance premium rate must
also be based on a loss ratio of ninety percent. Also before
calculating this ratio, any insurer or health maintenance
organization which directly provides health care services to its
policy holders, which employs health care practitioners, and
which owns and maintains facilities and equipment to provide
health care services, may include in the total of claims incurred
the wages and benefits of such health care practitioners, and the
costs of owning and maintaining such facilities and equipment, to
the extent that such employees, facilities and equipment are used
to provide direct health care services to policyholders.
(2) The highest premium rate per covered beneficiary for any
individual or group accident and sickness insurance policy issued
in West Virginia by any insurer or health maintenance
organization must not exceed one hundred twenty percent of the
lowest premium rate for a policy providing a similar benefit
package issued in West Virginia by that insurer or health
maintenance organization.
(b) Except as provided in subsection (c) of this section,
after the first day of January, one thousand nine hundred ninety-
four, no insurer may transact any individual, group or employer
group accident and sickness insurance, or operate any healthmaintenance organization or other prepaid health care plan
pursuant to chapter thirty-three of this code, without the
expressed approval of the insurance commissioner of the premium
rates for such coverage.
(c) Any insurer may apply to the insurance commissioner to
operate on a guaranteed loss ratio basis, pursuant to article
six-c, chapter thirty-three of this code:
Provided,
That after
the first day of January, one thousand nine hundred ninety-four,
the guaranteed loss ratio shall not be less than ninety percent.
§16-29E-12. Hospital reimbursement rates.
After the first day of January, one thousand nine hundred
ninety-four, reimbursement for all inpatient hospital services
provided in the state of West virginia to the beneficiaries of
individual or group health and accident insurance policies issued
in West Virginia, or to the enrollees of any health maintenance
organization, or to the beneficiaries of any employee benefit
plan covering hospital services, shall be based on and determined
by reference to a system of diagnosis related groups (DRG's) as
established by HCCRA, subject to article three, chapter twenty-
nine-a of this code. Such DRG's and the reimbursement rates
therefor shall further be subject to the following:
(a) The DRG categories, modifiers and definitions adopted by
HCCRA shall be patterned generally after those used to determine
hospital reimbursement under the federal medical system, but may
be modified and enhanced as necessary by HCCRA.
(b) On at least a yearly basis, HCCRA shall determine apayment rate for hospital services, which generally shall be
expressed as a single, uniform numerical multiplier of the DRG
payment schedule established by medicare.
(c) The payment rate for selected DRG's shall be modified
upward or downward by HCCRA if it appears that certain services
produce atypical levels of profit or loss compared to other
services. In making such modifications, HCCRA shall attempt to
assure that all necessary hospital services are equally
profitable, to create the incentive for hospitals to compete for
patients based on the total number served rather than on the
basis of particularly profitable services or types of patients.
(d) The payment schedule shall be generally uniform
statewide. It shall not be modified based on traditional
hospital charges or fees, but may be modified up to a total of
two and one-half percent upward or downward for any or all DRG's,
as determined by HCCRA, based on one or more of the following
considerations:
(1) Any difference in the cost of living between the areas
in which various hospitals are located.
(2) Any major departure from the expected severity of
disease within any major DRG at any particular hospital, if
adequately documented.
(3) Payments made by hospitals to service debts owed to
banks or other commercial lending institutions:
Provided,
That
if any hospital is owed money other than for unpaid hospital
services, or if any hospital has incurred any mortgage or otherlien against its assets, and the proceeds of such mortgage or
lien have passed from the control of the hospital board of
directors or have been used for purposes that do not relate
directly to the provision of health care services, such payments
may not be considered in reimbursement rates.
(4) Costs of education.
(e) An additional adjustment of the reimbursement rate for
any hospital shall be made for the profits and/or losses from
laboratory, X-ray, or other diagnostic services, physical therapy
services, rehabilitation services, home health services, skilled
nursing services, clinics and other outpatient health care
services provided by, owned by, or otherwise financially
associated with that hospital, up to the full total dollar amount
of such profits or losses.
(f) An additional adjustment shall be made for any unusually
high or low amount of uncompensated or undercompensated inpatient
care provided by any hospital, the value of such services to be
determined by reference to the DRG category of such care and the
standard DRG reimbursement schedule.
(g) An additional adjustment to the reimbursement rate for
any hospital shall be made based on the income or profits
realized by that hospital from any investments and assets not
associated with patient care, up to the full dollar value of such
income or profits.
§16-29E-13. Hospital boards of directors.
(a) The board of directors of any nonprofit hospital, and ofany hospital owned by a county, city or other political
subdivision of the state of West Virginia shall have and retain
control over all decisions of the hospital relating to or
affecting the cost of hospital services or the type of health
care services offered by the hospital. Such control may not be
delegated by contract or otherwise to any other person or entity.
The scope of authority granted herein shall be interpreted
broadly, and shall include the employment and supervision of the
chief executive officer of the hospital and control over all
funds received as payment for health care and related services.
(b) No person may serve on the board of directors of any
nonprofit hospital or hospital owned by any county, city or other
political subdivision of the state of West Virginia who is
employed by or receives any other remuneration or financial
benefit from the hospital or from any subsidiary or affiliate
thereof, or who owns or is employed by any entity selling or
seeking to sell goods or services to that hospital.
(c) No person may serve the board of directors of any
nonprofit hospital or hospital owned by any county, city or other
political subdivision of the state of West Virginia who owns, is
employed by, or has other financial interest in any other
hospital or any other entity providing any health-related service
which is in competition with such hospital or with any service
offered by such hospital.
§16-29E-14. Control of duplicative health care services.
(a) Designation of primary care provider; incentives.
(1) Any person who is a beneficiary of any individual or
group accident and sickness policy issued pursuant to chapter
thirty-three of this code shall, on or before the first day of
January of each year, be offered by the insurer the opportunity
to designate a personal primary care provider for the ensuing
calendar year. Primary care providers for the enrollees of
health maintenance organizations shall be designated according to
the terms of the enrollee's contract with the health maintenance
organization.
(2) Any health care services provided by a beneficiary's
designated primary care provider, or upon the order of or at the
request of that provider, or by another provider consulted by the
designated provider, or by another provider covering for such
designated provider, shall be reimbursed by the beneficiary's
insurer to at least the level of the standard payment schedule
for health care services established by HCCRA pursuant to section
seven of this article, subject to any policy-specific copayments
and limitations of coverage.
(3) Any health care service provided by or at the request of
provider who is not listed in subdivision (2) of this subsection,
except as provided in subdivision (2), subsection (b), section
seven of this article, shall be reimbursed by the insurer at no
more than ninety percent of the standard payment schedule
established by HCCRA, subject to any policy-specific copayments
and limitations of coverage. The remaining ten percent shall be
the obligation of the beneficiary.
(b) Selection of coverage.
The mandatory standard benefit package established by HCCRA
pursuant to section eight of this article shall include
sufficient preselectable choices to satisfy the policy of
nondiscrimination among health care providers established in
chapter thirty-three of this code while strongly discouraging the
simultaneous utilization of competing health care services and/or
disciplines. Such choices shall conform to the following
guidelines:
(1) On or before the first day of January of each year,
beneficiaries shall be offered a choice of basic coverage
packages, which choices shall include:
(i) Primarily medical or osteopathic physician coverage with
limited coverage of chiropractic physicians or other secondary
providers, such limitations to include limited or no payments or
substantial copayments for services from such secondary
providers; or
(ii) Primarily chiropractic physician coverage with limited
coverage for medical and osteopathic physicians and/or other
secondary providers, such limitations to include limited or no
payments or substantial copayments for services from such
secondary providers; or
(iii) Such other choices as HCCRA shall determine.
(2) Such alternative basic benefit packages shall be
designed to be of approximately equal cost per covered
individual.
(3) Such alternative basic benefit packages shall be
structured so as to strongly encourage the use of only one health
care discipline, and, to the extent possible, of only one health
care provider during any calendar year.
(c) Nonpayment for duplicative services.
No insurer is obligated to reimburse for any outpatient
laboratory test, X-ray or other diagnostic procedure, or any
similar procedure, which is performed twice or more within any
three-month period unless such test or procedure meets one or
more of the following criteria:
(1) Any tests or procedures ordered or performed by the
beneficiary's designated primary care provider.
(2) Both tests or procedures were ordered by the same
provider, and no similar test or procedure has also been done by
another provider in the interim.
(3) The statement or bill requesting reimbursement for any
such procedure is accompanied by a written explanation of the
necessity therefor, in sufficient detail to demonstrate the need
for such repetition.
§16-29E-15. Profits from health care ventures.
(a) This section does not apply to any medical equipment or
facility which is wholly owned and operated by any hospital or
hospitals operating within the state of West Virginia, and more
than fifty percent of the use of which is to provide services to
inpatients of such hospital or hospitals.
(b) On or before the first day of January, one thousand ninehundred ninety-five, HCCRA shall promulgate rules pursuant to
section three, chapter twenty-nine-a of this code, which shall
require that:
(1) Any person or entity which owns or operates medical
equipment or facilities used to perform diagnostic testing or
procedures for which that person or entity receives total
payments of more than five thousand dollars per year shall report
such ownership to HCCRA.
(2) On a form and in a manner to be determined by HCCRA, any
such person or entity shall report all required financial
activity associated with such equipment or its operation,
including the cost to purchase, the cost to finance, the cost to
operate, the depreciation thereof and such other information as
HCCRA shall require.
(3) On the basis of the information so supplied, HCCRA shall
determine the charges for any procedure using such equipment. In
establishing such charges, HCCRA shall consider:
(i) The amount invested in such equipment.
(ii) The cost of servicing any debt resulting from the
purchase of such equipment.
(iii) The risk, if any, involved in such investment.
(iv) The reasonable cost to operate such equipment.
(v) A reasonable profit or return from the ownership of such
equipment, which generally shall not be greater than five percent
per year, based on the amount invested and considering any
depreciation or appreciation of the value of such equipment.
§16-29E-16. Advertising of health care and related services.
(a) Any paid advertising of health care or related services
must be submitted to and preapproved by HCCRA. Those entities
specifically subject to this provision shall include all licensed
health care practitioners, all hospitals and hospital
corporations, all medical corporations, all insurers and all
health maintenance organizations and other partnerships,
corporations or associations providing health care services.
(b) In general, such advertising should be limited to:
(1) Statements which are generally factual in nature;
(2) Statements which inform the public as to the
availability of certain health care services:
Provided,
That
such statements may not serve to increase the demand for such
services unless HCCRA believes that such increased demand is in
the public interest;
(3) The relative cost of specific health care services from
specific providers or hospitals;
(4) Other factors relating to the location, convenience or
cost of health care services.
(c) In general, HCCRA shall disapprove any paid advertising
which:
(1) Is political in nature, or which is designed to affect
public policy, unless such advertising is paid for by individuals
in accordance with laws referable to political activity and
lobbying;
(2) Contains information which is untrue, misleading ordeceptive;
(3) Contains any statement, image or other means of
communication which is intended to increase demand for specific
health care services, unless HCCRA, after consultation with the
medical advisory committee, determines that such increased demand
is in the public interest;
(4) Contains any statement or implication which tends to
denigrate the character or competence of any health care
provider, unless such statement is a direct quotation from a
licensing or reviewing body which has sanctioned, publicly
reprimanded or otherwise publicly censured such provider.
§16-29E-17. Penalties for violations.
(a) Except as otherwise provided herein, any violation of
this article is subject to any or all of the following penalties:
(1) Actions against the licensure of any practitioner or
institution may include: A public reprimand; restrictions or
limitations of authorization to provide health care services;
revocation of certificate of need; suspension of licensure for up
to five years; revocation of licensure.
(2) Remedial actions which may be required include: A
program of education as prescribed by the board; a requirement to
practice or do business under the direction of another person
specified by the board; public service as specified by the board.
(3) Civil fines of not less than one hundred dollars nor
more than one thousand dollars may be assessed against any entity
and any individual for a first violation of this article.
(4) Civil fines of not less than one thousand dollars nor
more than ten thousand dollars may be levied against any entity
and any individual for a second violation of this article.
(5) Civil fines of not less than ten thousand dollars nor
more than one hundred thousand dollars may be assessed against
any entity and any individual for repeated violations of this
article.
(6) In addition to any such fines, any financial gain
realized as a result of any violation of this article shall be
refunded by any individual or any entity responsible for such
violation.
(b) Upon determination by the board that there is probable
cause to believe that any person, partnership, corporation,
association, insurance company, health maintenance organization
or other entity subject to the provisions of this article has
violated any provisions of this article, or if any such entity
fails or refuses to make a report required by this article, the
board shall provide written notice to the alleged violator
stating the nature of the alleged violation and the time and
place at which the alleged violator shall appear to show good
cause why such a penalty should not be imposed.
The hearing shall be conducted in accordance with the
provisions of article five, chapter twenty-nine-a of this code.
After reviewing the record of such hearing, if the board
determines that a violation of this article has occurred, the
board shall assess a penalty as described above:
Provided,
Thatno action may be taken against the licensure of any individual
without a subsequent disciplinary hearing conducted by the
respective licensing board.
Anyone so penalized shall be notified in writing and the
notification shall include the reasons for such penalty. If the
violator fails to meet the penalty within thirty days, or such
longer period as may be specified by the board, the attorney
general may institute a civil action in the circuit court of
Kanawha County to enforce the penalty.
(c) Any person against whom a civil penalty is assessed
pursuant to the provisions of this article, has the right to
judicial review as provided in articles five and six, chapter
twenty-nine-a of this code.
NOTE: This bill creates the Health Care Cost Control Act of
1993. Its stated intent is to control expenditures on health
care without compromising the quality or availability of health
care. The bill establishes a medical advisory committee within
the West Virginia Health Care Cost Review Authority ("HCCRA").
It makes seat belt use mandatory; it restricts smoking and
prohibits advertising of tobacco in public places. The bill
establishes fee and payment schedules for health care providers
and health insurers. The bill addresses medical malpractice
reform, limiting contingent fees for plaintiffs' attorneys and
noneconomic loss liability; punitive damages and provides for
credit for collateral source payments. The bill provides for a
mandatory standard health benefits plan and it deals with
inappropriate financial incentives. The bill also addresses
health insurance overhead and guaranteed loss ratios; hospital
reimbursement rates; and who may serve on hospital boards of
directors. It controls duplicative health care services and
profits from health care ventures and advertising of health care
and related services. And, finally, the bill provides penalties
for violations, including action against the licensure of any
practitioner or institution and the assessment of civil and
criminal penalties.
This article is new; therefore, strike-throughs and
underscoring have been omitted.