H. B. 2480
(By Mr. Speaker, Mr. Chambers, and Delegate Burk)
(By Request of the Executive)
[Introduced March 4, 1993; referred to the
Select Committee on Health Care Policies.]
A BILL to repeal sections sixteen, seventeen and eighteen,
article two, chapter thirty-three of the code of West
Virginia, one thousand nine hundred thirty-one, as amended;
to amend and reenact section two, article four, chapter nine
of said code; to amend and reenact section twelve, article
fifteen of said chapter nine; to amend and reenact section
ten-b, article one, chapter sixteen of said code; to amend
and reenact section nine, article two-d of said chapter
sixteen; to amend article two-d of said chapter sixteen by
adding thereto a new section, designated section four-b; to
amend and reenact section nineteen, article twenty-nine-b of
said chapter sixteen; to amend and reenact section fifteen,
article one, chapter thirty of said code; to amend article
one of said chapter thirty by adding thereto two new
sections, designated sections seventeen and eighteen; and to
further amend said code by adding thereto a new chapter,
designated chapter sixteen-a, all relating to state health
care system and the restructuring thereof, including, but
not limited to, the creation of a state health care
authority; continuing state medical services fund so long as
health care authority deems necessary and granting health
care authority certain powers with respect to such fund;
providing that medicaid coverage be expanded to cover
children under age of six and pregnant women, in each case
whose household income is less than two hundred percent of
federal poverty level; providing that state uniform health
professionals data system be continued under executive
secretary of health profession licensing boards; exempting
from certificate of need review those services, facilities
or any substantial change therein or any capital expenditure
covered by a preliminary or final certificate of public
advantage issued by health care authority; providing that
certificate of need be issued only if proposed new
institutional health service within applicable certificate
of need allocation established by health care authority;
requiring state health care cost review authority to
consider criteria established by health care authority in
reviewing hospital rates and budgets, and to apply any
alternative methods of rate determination or methods of
charges and payments adopted by health care authority;
enacting West Virginia health care act of 1993; setting
forth legislative findings on condition of health care
system in state and health of state's citizens, includingdelivery and financing of health care in state; declaring
legislative intent to, among other things, provide over time
universal access to uniform standard of high quality,
medically appropriate health care services in state and
restructure state health care system; including definitions
for, among other terms, community care networks,
coordinating bodies, cooperative agreements and uniform
health benefits package; creating West Virginia health care
authority and setting forth provisions relating to
composition thereof, appointment of members, length and
number of terms of members, quorum requirements and
frequency of meetings, compensation of members, and informal
meetings by and among members and staff; transferring to
health care authority all property of state health care
planning commission; setting forth powers of health care
authority, including, but not limited to, power to conduct
hearings, charge fees for services, applications and
certificates, and promulgate rules; setting for hearing
procedures; providing for a director of health care
authority and that director be appointed by governor and be
responsible for managing and administering daily functions
of health care authority, including hiring of support staff;
allowing health care authority to use services of employees
from certain other state agencies; requiring health care
authority to involve state health care providers, payors and
citizens in carrying out its duties; specifying variousactions relating to health and health care for which health
care authority shall be responsible, including, but not
limited to, implementation of state health plan, development
of community care networks in state, and development of
uniform health benefits package; authorizing health care
authority to promulgate legislative rules for all health
care related policies, programs and services operated,
financed, monitored, managed, controlled, regulated or
provided by certain state agencies; designating health care
authority as sole state agency with which federal government
and other entities shall deal with respect to health care;
authorizing health care authority to transfer from one state
agency to another state agency such agency's budget insofar
as it pertains to health care; requiring health care
authority to submit to governor and Legislature on an annual
basis report on health care in state; requiring each state
agency to ensure that its policies and programs are
consistent with those set forth in or established pursuant
to chapter sixteen-a of the code; requiring health care
authority to update state health plan; designating health
care authority single state agency for purposes of medicaid
and providing that authority make all rules, regulations and
policies of state medicaid plan; requiring health care
authority to develop system for certifying community care
networks, including developing criteria for such
certification; requiring that such networks be directed bya coordinating body; providing for cooperative agreements
between health care providers or between health care
providers and coordinating body, and requiring that such
agreements be approved by health care authority and be in
existence prior to establishment of network; setting forth
procedures governing cooperative agreements and for issuance
of preliminary certificates of public advantage approving
proposed cooperative agreements; requiring holders of such
preliminary certificates to submit progress reports to
health care authority on periodic basis; providing for
extensions and rescissions of such preliminary certificates
by authority and requiring public notice on such decisions
in certain cases, and providing for hearings if requested by
parties adversely affected thereby; setting forth procedures
for issuance of certificate of public advantage; exempting
cooperative agreements, community care networks and
discussions relating thereto from coverage of federal and
state antitrust laws; requiring health care authority to
establish by rule incentives for health care providers to
organize community care networks, and to provide technical
assistance to communities and health care providers desiring
to establish community care networks; requiring health care
authority to develop plan for long-term care in state and to
develop health-promotion programs; requiring health care
authority to define a uniform health benefits package for
all state citizens, to coordinate health care purchasing andpayment functions of all state agencies, and to conduct
studies necessary to develop and implement health care
reforms; requiring health care authority to develop plan to
integrate workers' compensation medical benefits with the
health care services included in uniform health benefits
package, and plan to enable individuals and employers to
purchase insurance from public employees' insurance agency;
requiring health care authority to develop a global budget
for both institutional and individual providers beginning
with fiscal year beginning first day of July, one thousand
nine hundred ninety-six, and to establish by rule a budget
for capital expenditures which shall, among other things,
set maximum aggregate principal amount of certificates of
need which may be issued each year; requiring health care
authority to establish by rule systems of payment for
institutional health care providers, based on the medicare
diagnostic related group payment system, and for
noninstitutional health care providers, based on the
resource based relative value system, and to establish by
rule a system of uniform rates for services for all health
care providers by the first day of January, one thousand
nine hundred ninety-six, and requiring upon establishment of
such rates that health care providers shall accept as
payment in full for the delivery of such services the amount
so established; requiring health care authority to establish
plan of health insurance reforms for state, which plan shallconsider, among other things, a shift to community ratings;
creating an office of consumer advocacy within the health
care authority; requiring health care authority to develop
uniform billing forms and procedures; requiring health care
authority to develop an information system to provide basis
for reform; requiring that each employer in state provide
health care authority information regarding health care
coverage provided by such employer to its employees;
providing that any data collected by a state agency relating
to health care shall be property of health care authority;
providing that health care authority may make grants to
private or public entities; requiring that executive
secretary for health care boards shall report to health care
authority; requiring health care authority to develop a
single utilization review program for all payors of health
services, to develop a plan to create an excess liability
fund for health care provider malpractice, and to appoint an
ad hoc task force to make recommendations on improving tort
and liability system; creating a community and rural health
advisory council; establishing rural health loan program and
rural health scholars program; continuing office of
executive secretary of health professional licensing boards;
protecting from liability any member of certain professional
groups, including, but not limited to, physicians, lawyers,
real estate brokers, architects, certified public
accountants, engineers and various other healthprofessionals, who reports or otherwise provides evidence to
the governing board of such reporting persons's profession,
of the negligence, impairment or incompetence of another
member of such profession, except in cases involving actual
malice; and requiring health care authority to establish
rules with respect to self-referrals by health care
providers.
Be it enacted by the Legislature of West Virginia:
That sections sixteen, seventeen and eighteen, article two,
chapter thirty-three of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be repealed; that section
two, article four, chapter nine of said code be amended and
reenacted; that section twelve, article fifteen of said chapter
nine be amended and reenacted; that section ten-b, article one,
chapter sixteen of said code be amended and reenacted; that
section nine, article two-d of said chapter sixteen be amended
and reenacted; that article two-d of said chapter sixteen be
amended by adding thereto a new section, designated section four-
b; that section nineteen, article twenty-nine-b of said chapter
sixteen be amended and reenacted; that section fifteen, article
one, chapter thirty of said code be amended and reenacted; and
that article one of said chapter thirty be amended by adding
thereto two new sections, designated sections seventeen and
eighteen, and that said code be further amended by adding thereto
a new chapter, designated chapter sixteen-a, all to read as
follows:
CHAPTER 9. HUMAN SERVICES.
ARTICLE 4. STATE ADVISORY BOARD; MEDICAL SERVICES FUND;
ADVISORY COUNCIL; GENERAL RELIEF FUND.
§9-4-2. Medical services fund.
The special fund known as the state of West Virginia public
assistance medical services fund established by chapter one
hundred forty-three, acts of the Legislature, regular session,
one thousand nine hundred fifty-three, as amended by chapter two,
acts of the Legislature, first extraordinary session, one
thousand nine hundred sixty, and chapter forty-nine, acts of the
Legislature, regular session, one thousand nine hundred sixty-
six, chapter seventy-eight, acts of the Legislature, regular
session, one thousand nine hundred seventy, chapter one hundred
twenty-seven, acts of the Legislature, regular session, one
thousand nine hundred seventy-two, and chapter one hundred seven,
acts of the Legislature, regular session, one thousand nine
hundred eighty-three, shall be continued in accordance with the
provisions of this section so long as the same may be required by
federal laws, rules and regulations applicable to federal-state
assistance and thereafter so long as the commissioner health care
authority established by section one, article two, chapter
sixteen-a of this code shall deem such fund to be otherwise
necessary or desirable, and henceforth such special fund shall be
known as the department of human services medical services fund,
hereinafter referred to as the fund.
The fund shall consist of payments made into the fund out ofstate appropriations for medical services to recipients of
specified classes of welfare public assistance and such federal
grant-in-aid grants-in-aid as are made available for specified
classes of welfare public assistance. Any balance in the fund at
the end of any fiscal year shall remain in the fund and shall not
expire or revert. Payments shall be made out of the fund upon
requisition of the commissioner director of the health care
authority or his or her designee by means of a warrant signed by
the auditor and treasurer.
Recipients of those classes of welfare public assistance as
are specified by the department health care authority, consistent
with applicable federal laws, rules and regulations, shall be
entitled to have costs of necessary medical services paid out of
the fund, in the manner and amounts, to the extent, and for the
period determined from time to time to be feasible by the
commissioner health care authority pursuant to rules regulations
and standards established by him it. Such rules regulations and
standards shall comply with requirements of applicable federal
laws, rules and regulations and, prior to implementation of the
uniform health benefits package defined by section one, article
four, chapter sixteen-a of this code, shall be established on the
basis of money available for the purpose, the number of
recipients, the experience with respect to the incidence of
illness, disease, accidents, and other causes among such
recipients causing them to require medical services and the costs
thereof, the amounts which recipients require otherwise in orderto maintain a subsistence compatible with decency and health, and
any process developed by the health care authority to implement
such package. After implementation of the uniform health
benefits package hereinabove described, such rules and standards
shall be established on the basis of the uniform health benefits
package, subject to the requirements of applicable federal laws
and rules, and shall be subject to any other factor considered
relevant and proper by the commissioner health care authority:
Provided, That such rules and regulations respecting
qualifications shall permit the expenditure of state funds to pay
for care rendered in any birthing center licensed under the
provisions of article two-e, chapter sixteen of this code, by a
licensed nurse midwife or midwife as this occupation is defined
in section one, article fifteen, chapter thirty of this code, and
which care is within the scope of duties for such licensed nurse
midwife or midwife as permitted by the provisions of section
seven, article fifteen of said chapter thirty.
ARTICLE 15. MISCELLANEOUS PROVISIONS.
§9-15-12. Medicaid programs; maternity, infant and child care.
(a) The Legislature finds that high rates of infant
mortality and morbidity are costly to the state in terms of human
suffering and of expenditures for long-term institutionalization,
special education and medical care. It is well documented that
appropriate care during pregnancy and delivery can prevent many
of the expensive, disabling problems our children experience.
There exists a crisis in this state relating to the availabilityof obstetrical services, particularly to patients in rural areas,
and to the cost patients must pay for obstetrical services. The
availability of obstetrical service for medicaid patients enables
these patients to receive quality medical care and to give birth
to healthier babies and, consequently, improve the health status
of the next generation.
The Legislature further recognizes that public and private
insurance mechanisms remain inadequate, and poor women and
children are among the most likely to be without insurance.
Generally, low-income, uninsured children receive half as much
health care as their insured counterparts. The state is now
investing millions to care for sick infants whose deaths and
disabilities could have been avoided.
It is the intent of the Legislature that the department of
human services state participate in the medicaid program for
indigent children and pregnant women established by Congress
under the Consolidated Omnibus Budget Reconciliation Act (COBRA),
Public Law 99-272, the Sixth Omnibus Budget Reconciliation Act
(SOBRA), Public Law 99-504, and the Omnibus Budget Reconciliation
Act (OBRA), Public Law 100-203.
(b) The health care authority established by section one,
article two, chapter sixteen-a of this code shall direct the
office of medical services in the department of human services
shall health and human resources to:
(1) Extend the medicaid coverage to pregnant women and their
newborn infants to one hundred fifty percent of the federalpoverty level, effective the first day of July, one thousand nine
hundred eighty-eight.
(2) As provided under COBRA, SOBRA, and OBRA, effective the
first day of July, one thousand nine hundred eighty-eight,
infants shall be included under the medicaid coverage with all
children eligible for medicaid coverage born on or after the
first day of October, one thousand nine hundred eighty-three,
whose family incomes are at or below one hundred percent of the
federal poverty level and continuing until such children reach
the age of eight years.
(3) Elect the federal options provided under COBRA, SOBRA,
and OBRA, impacting pregnant women and children below the poverty
level: Provided, however, That no provision in this article
shall restrict the department of human services health care
authority in exercising new options provided by or to be in
compliance with new federal legislation that further expands
eligibility for children and pregnant women.
(4) Enter into an inter-agency agreement with the bureau of
public health within the department of health and human
resources, whereby the department of bureau of public health
shall be responsible for the implementation and program design
for a maternal and infant health care system to reduce infant
mortality in West Virginia. The health system design shall
include quality assurance measures, case management and patient
outreach activities. The department of human office of medical
services shall assume responsibility for claims processing inaccordance with established fee schedules, and financial aspects
of the program necessary to receive available federal dollars and
to meet federal rules. and regulations
(5) The department of bureau of public health shall transfer
to the department of human office of medical services through
inter-agency agreement such state funds as are necessary to
implement this program to the department of human services
medical services account; and the department of human office of
medical services shall, through inter-program transfer, provide
such state funds as are necessary to implement this program.
(6) Beginning the first day of July, one thousand nine
hundred eighty-eight, the state department of human office of
medical services shall increase to no less than six hundred
dollars the reimbursement rates under the medicaid programs for
prenatal care, delivery and post-partum care.
(c) In order to be in compliance with the provisions of
OBRA, through rules and regulations the department health care
authority shall ensure that pregnant women and children whose
incomes are above the Aid to Families and Dependent Children
(AFDC) payment level are not required to apply for entitlements
under the AFDC program as a condition of eligibility for medicaid
coverage. Further, the department of health and human resources
shall develop a short, simplified pregnancy/pediatric application
of no more than three pages, paralleling the simplified OBRA
standards.
(d) Commencing during the fiscal year beginning the firstday of July, one thousand nine hundred ninety-three, or as soon
thereafter as any waiver required under Title XIX of the Social
Security Act is received, the health care authority shall direct
the office of medical services to, and the office of medical
services shall, expand medicaid coverage to any child under the
age of six whose household income is less than two hundred
percent of the federal poverty level and to any pregnant women
whose household income is less than two hundred percent of the
federal poverty level. The office of medical services shall
within thirty days after the effective date of this section apply
for any federal waiver and shall promptly take all other actions
required for the implementation of this section.
(d) (e) Any woman who establishes eligibility under this
section shall continue to be treated as an eligible individual
without regard to any change in income of the family of which she
is a member under the end of the sixty day period beginning on
the last day of her pregnancy.
(e) (f) Nothing in this section shall be construed to give
the department of bureau of public health any jurisdiction over
the medicaid program or its operations.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 1. STATE BUREAU OF PUBLIC HEALTH.
§16-1-10b. Establishment of a uniform health professionals data
collection system.
The commissioner of the bureau of public health shall
establish a uniform health professionals data system to collectand maintain data on health professionals in this state
established with the commissioner of the bureau of public health
shall be continued under the executive secretary of the health
profession licensing boards continued by section fifteen, article
one, chapter thirty of this code. This The data to be collected
and maintained shall include, but not be limited to, the
following information about each health professional: His or her
name, profession, the area of the state where practicing,
educational background, employer's name, and number of years
practicing within the profession. The boards provided for under
articles three, four, four-a, five, seven, seven-a, fourteen,
fourteen-a, fifteen, sixteen, twenty, twenty-one, twenty-three
and twenty-eight, chapter thirty of this code, and any successor
or successors thereto, shall collect the data on health
professionals under their jurisdiction on an annual basis and in
the format prescribed by the commissioner executive secretary and
approved by the health care authority established by section one,
article two, chapter sixteen-a of this code. Each such board
shall be required to pay to the bureau of health care authority
an amount, to be determined by the commissioner health care
authority, to cover expenses incurred by or on behalf of the
bureau of health executive secretary in establishing and
maintaining the uniform health professionals data system required
by this section. The commissioner health care authority shall
publish or caused to be published annually and make available,
upon request, a report setting forth the data which was collectedthe previous year; areas of the state which the collected data
indicates have a shortage of health professionals; and
projections, based upon the collected data, as to the need for
more health professionals in certain areas.
ARTICLE 2D. CERTIFICATE OF NEED.
§16-2D-4b. Services, facilities and expenditures identified in
certificate of public advantage not subject to
certificate of need.
A holder of a preliminary certificate of public advantage
issued by the state health care authority under section three,
article three, chapter sixteen-a of this code, or a certificate
of public advantage issued by the health care authority under
section five, article three, chapter sixteen-a of this code, is
not required to obtain a certificate of need for any health care
service or facility, or any substantial change therein, or any
capital expenditure specifically described and approved in its
preliminary certificate of public advantage or certificate of
public advantage, as applicable. The health care authority
created by section one, article two, chapter sixteen-a of this
code shall provide the state agency with a copy of each
preliminary certificate of public advantage and certificate of
public advantage upon the issuance thereof. Any health care
service or health care facility, or any substantial change
therein, or any capital expenditure not specifically described
and approved in a preliminary certificate of public advantage or
certificate of public advantage shall require a certificate ofneed unless otherwise exempt from this article.
§16-2D-9. State agency to render final decision; issue
certificate of need; certificate of need
allocation; write findings; specify capital
expenditure maximum.
(a) Only the state agency, or the appropriate administrative
or judicial review body, may issue, deny or withdraw certificates
of need, grant exemptions from certificate of need reviews, or
determine that certificate of need reviews are not required.
(b) Except as provided in subsection (f) of this section, A
certificate of need may only be issued if the proposed new
institutional health service is:
(1) Found to be needed; and
(2) Except in emergency circumstances that pose a threat to
public health, consistent with the state health plan: Provided,
That if a health care facility which is controlled, directly or
indirectly, by a health maintenance organization applies for a
certificate of need for a proposed new institutional health
service, the state agency may not disapprove the application
solely because such an institutional health service is not
discussed in the state health plan or annual implementation plan
and other policies of the health care authority; and
(3) Within the applicable certificate of need allocation
established by the health care authority pursuant to section
five, article four, chapter sixteen-a of this code.
(c) The state agency shall render a final decision on everyapplication for a certificate of need or application for
exemption in the form of an approval, a denial, or an approval
with conditions. Any decision of the state agency with respect
to a certificate of need, or exemption, shall be based solely on:
(1) The review of the state agency conducted in accordance
with procedures and criteria in this article and in regulations
rules adopted pursuant to section eight of this article; and
(2) The record established in administrative proceedings
held with respect to the certificate of need or exemption.
(d) Approval with conditions does not give the state agency
authority to mandate new institutional health services not
proposed by the health care facility or health maintenance
organization applicant. Issuance of a certificate of need or
exemption may not be made subject to any condition unless the
condition directly relates to criteria in this article or in
rules and regulations adopted pursuant to section eight of this
article. Conditions may be imposed upon the operations of the
health care facility or health maintenance organization for no
longer than a three-year period. Compliance with such conditions
may be enforced through the mechanisms detailed in section
thirteen of this article.
(e)(1) For each proposed new institutional health service it
approves, the state agency shall, in addition to the written
findings required in subsection (e), section six of this article,
make a written finding, which shall take into account the current
accessibility of the facility as a whole, on the extent to whichthe new institutional health service will meet the criteria in
subdivisions (4), (14) and (25), subsection (a), section six of
this article, regarding the needs of medically underserved
population populations, except in the following cases:
(A) Where the proposed new institutional health service is
one described in subsection (g) of this section to eliminate or
prevent certain imminent safety hazards or to comply with certain
licensure or accreditation standards; or
(B) Where the new institutional health service is a proposed
capital expenditure not directly related to the provision of
health services or to beds or major medical equipment; or
(C) Where the new institutional health service is proposed
by or on behalf of a health care facility which is controlled,
directly or indirectly, by a health maintenance organization.
(2) If the state agency disapproves a proposed new
institutional health service for failure to meet the needs of
medically underserved populations, it shall so state in a written
finding.
(f)(1) Notwithstanding review criteria in subdivision (12),
subsection (a), section six of this article, if a health care
facility which is controlled, directly or indirectly, by a health
maintenance organization applies for a certificate of need, such
application shall be approved by the state agency if the state
agency finds, in accordance with criteria prescribed by the state
agency by regulations adopted pursuant to section eight of this
article, that:
(A) Approval of such application is required to meet the
needs of the members of the health maintenance organization and
of the new members which such organization can reasonably be
expected to enroll; and
(B) The health maintenance organization is unable to
provide, through services or facilities which can reasonably be
expected to be available to the organization, its institutional
health services in a reasonable and cost-effective manner which
is consistent with the basic method of operation of the
organization and which makes such services available on a long-
term basis through physicians and other health professionals
associated with it.
(2) Except as provided in subdivision (1), subsection (b),
section four of this article, a health care facility, or any part
thereof, or medical equipment with respect to which a certificate
of need was issued under this subsection, may not be sold or
leased, and a controlling interest in such facility or equipment
or in a lease of such facility or equipment may not be acquired
unless the state agency issues a certificate of need approving
the sale, acquisition or lease.
(g)(1) Notwithstanding review criteria in section six of
this article, an application for a certificate of need shall be
approved, if the state agency finds that the facility or service
with respect to which such capital expenditure is proposed to be
made is needed and that the obligation of such capital
expenditure is consistent with the state health plan, for acapital expenditure which is required:
(A) To eliminate or prevent imminent safety hazards as
defined by federal, state or local fire, building or life safety
codes or regulations;
(B) To comply with state licensure standards; or
(C) To comply with accreditation or certification standards,
compliance with which is required to receive reimbursements under
Title XVIII of the Social Security Act or payments under the
state plan for medical assistance approved under Title XIX of
such act.
(2) An application for a certificate of need approved under
this subsection shall be approved only to the extent that the
capital expenditure is required to eliminate or prevent the
hazards described in subparagraph paragraph (A), subdivision (1),
of this subsection (g), or to comply with the standards described
in either subparagraph paragraph (B) or (C), subdivision (1), of
this subsection. (g) of this section
(h)(1) The state agency shall send its decision along with
written findings to the person proposing the new institutional
health service or exemption applicant and shall make it available
to others upon request.
(2) In the case of a new institutional health service
proposed by a health maintenance organization, the state agency
shall send the written findings to the appropriate regional
office of the federal department of health and human services at
the time they are sent to the applicant.
(3) In any decision where the state agency finds that a
proposed new institutional health service does not satisfy the
criteria in subdivisions (4), (14) and (25), subsection (a),
section six of this article, regarding the needs of medically
underserved population, it shall so notify in writing the
applicant and the appropriate regional office of the federal
department of health and human services.
(i) In the case of a final decision to approve or approve
with conditions a proposal for a new institutional health
service, the state agency shall issue a certificate of need to
the person proposing the new institutional health service
applicant.
(j) The state agency shall specify in the certificate the
maximum amount of capital expenditures which may be obligated
under such certificate. The state agency shall prescribe the
method used to determine capital expenditure maximums and shall
adopt regulations rules pursuant to section eight of this article
for the review of approved new institutional health services for
which the capital expenditure maximum is exceeded or is expected
to be exceeded.
(k) If the state agency fails to make a decision within the
time period specified for the review, the applicant may, within
one year following the expiration of such period, bring an
action, at the election of the applicant, in either the circuit
court of Kanawha County, or with the judge thereof in vacation,
or in the circuit court of the county in which the applicant orany one of the applicants resides or does business, or with the
judge thereof in vacation, to require the state agency to approve
or disapprove the application. An application for a proposed new
institutional health service or exemption may not be approved or
denied by the circuit court solely because the state agency
failed to reach a decision.
ARTICLE 29B. WEST VIRGINIA HEALTH CARE COST REVIEW AUTHORITY.
§16-29B-19. Rate-setting powers generally.
(a) The board shall have power: (1) To initiate reviews and
investigations of hospital rates and establish and approve such
rates; (2) to initiate reviews and investigations of hospital
rates for specific services and the component factors which
determine such rates; (3) to initiate reviews and investigations
of hospital budgets and the specific components of such budgets;
and (4) to approve or disapprove hospital rates and budgets
taking into consideration the criteria set forth in section
twenty of this article and the rules of the health care authority
created by section one, article two, chapter sixteen-a of this
code.
(b) In the interest of promoting the most efficient and
effective use of hospital service, the board health care
authority may adopt and approve, and the board shall apply,
alternative methods of rate determination. The board health care
authority may also adopt, and the board shall apply, methods of
charges and payments of an experimental nature which are in the
public interest and consistent with the purpose purposes of thisarticle and of chapter sixteen-a of this code.
CHAPTER 16A. WEST VIRGINIA HEALTH CARE ACT OF 1993.
ARTICLE 1. GENERAL PROVISIONS.
§16A-1-1. Short title.
This chapter shall be known and may be cited as the "West
Virginia Health Care Act of 1993."
§16A-1-2. Legislative findings.
(a) The Legislature hereby finds and declares that there is
a crisis in health care in West Virginia and that the existing
methods of delivering and financing health care services are
exacerbating this crisis rather than eliminating it.
(b) The Legislature hereby finds and declares further that
many citizens of West Virginia have health problems, as evidenced
by the state's mortality rates for heart and cardiopulmonary
diseases, cancer and diabetes, and that many of their health
problems are caused by behavioral habits, including improper
diet, lack of exercise and tobacco consumption, all of which can
be changed through health education and promotion.
(c) The Legislature hereby finds and declares further that
at least two hundred fifty thousand citizens of West Virginia,
including at least seventy thousand children, have no health
insurance; that many other citizens are underinsured; and that
people without adequate health insurance have difficulty finding
health care providers who will serve them, postpone their basic
preventive care needs until they are ill or injured and ignore
their chronic care needs until they become acute and sometimescatastrophic, resulting in more extensive and costly care.
(d) The Legislature hereby finds and declares further that
insurance coverage does not alone guarantee access to health
care; that West Virginia's primary and preventive health care
services are inadequate; that the state has an insufficient
number of certain types of health care providers and a
maldistribution of others; that cultural and geographic factors
and inadequate transportation contribute to the state's health
care problems; and that the state's health care system lacks
coordination and cooperation among both health care providers and
state agencies.
(e) The Legislature finds and declares further that the
costs of health care in West Virginia increase dramatically every
year; that in the year one thousand nine hundred ninety-one alone
health care expenditures in the state amounted to approximately
four billion three hundred million dollars, or two thousand four
hundred dollars for every citizen of the state, and that West
Virginians without insurance received approximately one hundred
fifty-four million dollars of uncompensated care; that during the
past decade per capita health care expenditures in West Virginia
rose at an average annual rate of nine and one-half percent,
exceeding the general inflation rate for the same period; and
that the current system of financing health care encourages or
requires cost shifting, making insurance more costly and in some
instances unaffordable and placing a significant financial burden
on both employers and employees.
(f) The Legislature hereby finds and declares further that
the crisis and problems hereinabove described dictate that the
existing system of delivering and financing health care in West
Virginia be restructured so as to ensure the health and well-
being of the citizens of this state; that, although health
reforms may ultimately occur at the federal level, this state
must act promptly to begin to reform its health care delivery
system, to implement cost containment and to develop the
infrastructure and information systems which will form the basis
for major financial and service delivery reforms; and that the
Legislature and the health care authority hereinafter created
must act aggressively to implement state health care reforms and
to implement in this state at the earliest possible date any
appropriate federal health care reforms.
(g) The Legislature hereby finds and declares further that
the development and implementation of the reforms hereinabove
described require the creation of a state health care authority
with such powers and authority as hereinafter provided.
§16A-1-3. Purpose and intent.
(a) The intent of this legislation is to provide, over time,
universal access to a uniform standard of high quality, medically
appropriate health care services in West Virginia.
(b) It is the further intent of this legislation to
restructure West Virginia's health care delivery system into a
community-based system of care which will (i) offer a continuum
of care managed by primary care providers; (ii) promote andsupport a provider team approach to health care delivery; (iii)
focus on improving the health status of the community; (iv)
recognize as priorities health promotion, preventive care and
primary care; and (v) recognize the importance of each individual
assuming personal responsibility for his or her health and health
care.
(c) It is the further intent of this legislation that the
state's health care delivery system be restructured through
public and private actions at both the state and local levels;
that state government's role be to promote a vision, set
boundaries, develop incentives and serve as a catalyst for
private local action, and to measure the results thereof; that
state government support and promote the establishment of
community care networks, providing technical assistance and
grants for demonstration projects and assisting in community
organization as appropriate, but that the actual planning,
establishment and operation of such networks occur at the local
level within the framework of a state plan; and that the process
of restructuring the state's health care delivery system promote
collaboration among public, voluntary and private providers of
health care services, between the public and private sectors and
between state government and communities within the state.
(d) It is the further intent of this legislation to
restructure the state's health care delivery system by
encouraging, with financial incentives or otherwise, rather than
mandating, participation by health care providers and consumersin community care networks.
(e) It is the further intent of this legislation to
ultimately finance West Virginia's health care system, to the
extent possible, on a fair, equitable and reasonable basis,
without reliance on cost shifting, so as to ensure affordable,
high quality, medically appropriate health care services, and to
rechannel savings from the health care cost containment required
by this chapter within the health care system to increase access
to a uniform standard of high quality, medically appropriate
health care services.
(f) It is the further intent of this legislation to
encourage the coordination and integration of health care
services; to promote the development of managed care systems; to
promote the development of community-based services for persons
with special needs; to foster individual responsibility for
health and health care; to encourage health care promotion and
disease prevention; to provide for the equitable distribution of
scarce resources; to maximize the appropriate use of federal
funds; to simplify administrative burdens associated with the
delivery of and payment for health care services; and to improve
the health of the citizens of West Virginia.
(g) It is the further intent of this legislation to require
the state health care authority hereinafter created and other
state agencies acting on its behalf, by the earliest practicable
date, to collect the data, conduct actuarial and other studies,
and develop the information systems necessary to provide a basisfor the health care authority to develop the most appropriate and
effective reforms in the financing and delivery of health care
services and to assess on an ongoing and timely basis the status
of the health of the citizens of West Virginia and the state's
health care delivery system, the effectiveness of reforms made
and the potential effect of any proposed reforms.
(h) It is the further intent of this legislation to reform
West Virginia's health care system in a comprehensive, rather
than piecemeal, manner and to achieve such reform in incremental
phases involving a multi-year process; to adjust any measures to
achieve such reform hereafter taken from time to time, to be
consistent with health care reforms undertaken at the federal
level; and to continuously monitor and reassess such measures to
establish and maintain the health care system intended by this
legislation.
(i) The purpose of this legislation is to address the
findings and declarations set forth in section two of this
article and to carry out the intent set forth in this chapter.
This legislation shall be liberally construed to accomplish such
purpose.
§16A-1-4. Definitions.
For purposes of this chapter:
(a) "Annual report" means the report required by section
five, article two of this chapter.
(b) "Authority" means the West Virginia health care
authority established by section one, article two of thischapter.
(c) "Care management" means the monitoring and coordination
of a person's health care by a care manager, who assumes
responsibility for the comprehensive health management of such
person, including, but not limited to, patient education,
counseling, guidance, maintaining such person's health records,
providing preventive and primary care at the level appropriate to
the individual care manager's training or expertise and
monitoring and coordinating all other appropriate health care
services and social services as necessary, for such person.
(d) "Care manager" means the primary care physician,
physician assistant, nurse practitioner, health maintenance
organization or other person or entity that provides care
management to a person.
(e) "Certificate" means a certificate of public advantage
issued by the authority to a community care network pursuant to
article three of this chapter.
(f) "Community" means a geographic area with which a person
identifies himself or herself, which usually corresponds to a
county or a municipality and surrounding communities within a
county. Having services "available in a community" means within
a reasonable distance, generally not more than thirty minutes'
driving time from an individual's residence, ensuring reasonable
access to health care services to each person within the
community. For secondary and tertiary care within a community
care network, a "community" may extend beyond county borders orthe state's borders.
(g) "Community care network" means a locally based
organization of health care, education and support service
providers, which promotes a cooperative and collaborative
approach to the delivery of health care services and provides for
the complete range of health care and, in some cases, social
needs of its patients, and which is planned, established and
operated on a community level within the framework of a state
plan.
(h) "Community rating" means the insurance practice of
pooling covered individuals without regard to their actual or
perceived health status or health care costs experience to
develop an average insurance premium price, which may be adjusted
as provided by rule of the authority, including, but not limited
to, the creation of two or more risk categories to reflect
factors such as age.
(i) "Certificate of need" means certificate of need as
described in article two-d, chapter sixteen of this code.
(j) "Continuous quality improvement" or "CQI" means a
quality management tool that focuses on improvement of the
average. Under the continuous quality improvement model,
utilization of health care services, as well as the methods used
to provide those services, are monitored on an ongoing basis.
These procedures and outcomes of care are analyzed, with reports
of patterns of care made available to appropriate individuals and
agencies, including health care providers, patients, licensingboards and payors.
(k) "Certificate of need allocation" means the maximum
aggregate principal amount of certificates of need allocated by
the authority to a particular class of institutional health
services, as defined in article two-d, chapter sixteen of this
code, in a particular area during a calendar year, all in
accordance with section five, article four of this chapter.
(l) "Coordinating body" means the board of directors or
other entity organized to direct a community care network
pursuant to subsection (c), section one, article three of this
chapter.
(m) "Cooperative agreement" means an agreement between two
or more health care providers, or between one or more health care
providers and a coordinating body, for the sharing, allocation or
referral of patients or for the sharing or allocation of
personnel, instructional programs, support services and
facilities, medical, diagnostic or laboratory facilities or
procedures, or other services customarily offered by health care
providers.
(n) "Cost containment" means a series of measures designed
to control and reduce increases in health care expenditures.
(o) "ERISA" means the Employee Retirement Income Security
Act of 1974, title 29, United States Code, sections 1001 et seq.
(p) "Expenditure target" means a budget developed for
aggregate health care spending within a specified time period.
(q) "Global budget" means an annually set or negotiated capon total health care expenditures. A global budget may apply to
a region, a population, a group of providers, a particular
hospital or a health plan responsible for the comprehensive care
of its members.
(r) "Health" means both physical and mental health.
(s) "Health care facility" means any facility, including,
but not limited to, hospitals, ambulatory surgical facilities,
nursing homes, mental health centers and primary care clinics
designated as such by rule of the authority: Provided, That such
designation may be different for different purposes provided by
this chapter.
(t) "Health care provider" means any person, facility or
institution, including, but not limited to, a person, facility or
institution licensed, certified or authorized by law to provide
health care services in this state, designated as such by rule of
the authority: Provided, That such designation may be different
for different purposes provided by this chapter.
(u) "Health care services" means any services delivered to
a person to promote healthful living, maintain health or
stability of chronic conditions, treat illness, injury or disease
or restore function, including, but not limited to, health
promotion and education, primary care, secondary care and
tertiary care.
(v) "Health education" means any combination of learning
opportunities designed to facilitate voluntary adaptations of
behavior conducive to health.
(w) "Health maintenance organization" means an organization
which provides its enrollees with a package of health services,
directly in its own clinical setting, or through contractual
arrangements, for a predetermined, prepaid fee which does not
change with the nature or extent of services provided, and which
organization complies with applicable provisions of this code,
including, but not limited to, article twenty-five-a, chapter
thirty-three of this code.
(x) "Health promotion" means any combination of health
education and related organizational, political and economic
interventions designed to facilitate behavioral and environmental
adaptations that will improve or protect health.
(y) "Health services" means services, including drugs and
durable medical equipment, delivered to individuals and families
by a wide range of health professionals that may be preventive,
diagnostic, curative, restorative, or palliative. Health
services may also be directed to the entire population or
communities. This latter category of services includes
prevention and control of communicable diseases, community health
protection, and a wide range of health promotion and education
activities in communities, schools and workplaces.
(z) "High-tech care" means care involving specialized
services, equipment or procedures, or new or emerging
technologies, presently including, but not limited to, positron
emission tomography, organ transplantation, megavoltage radiation
therapy, lithotripsy, magnetic resonance imaging, cardiaccatheterization, open heart surgery, neonatal intensive care
units and burn units, all of which such services, equipment,
procedures and technologies shall be further identified by rule
of authority.
(aa) "Long-term care" means the health care, personal care
and social services required by persons who have lost, or never
acquired, some degree of functional capacity, delivered on a
long-term basis.
(bb) "Managed care" means a system of comprehensive and
coordinated health care, such as that provided by a certified
community care network, which includes care management, quality
assurance, utilization review and similar measures to ensure
appropriate, high quality health care and the appropriate use of
limited resources and containment of costs.
(cc) "Medicaid" means the state and federal program that
provides reimbursement for health care services for eligible
persons and families.
(dd) "Medicare" means the federal program administered by
the United States social security administration that covers the
medical care of patients over age sixty-five and certain
qualified persons under age sixty-five.
(ee) "Payor" means public, private, governmental and
nongovernmental payors or purchasers of health care services, all
in conformance with federal laws, rules and regulations.
(ff) "Planning commission" means the health care planning
commission established by article one-a, chapter sixteen of thiscode.
(gg) "Practice guideline" means a systematically developed
statement designed to assist health care providers and patients
to make decisions about appropriate health care for specific
clinical conditions.
(hh) "Preventive care" means actions and programs undertaken
to prevent disease or its consequences, including, without
limitation, health care programs such as immunizations aimed at
warding off illnesses; early detection of diseases, such as pap
smears; to inhibit further deterioration of the body, such as
exercise or prophylactic surgery; to promote health through
altering behavior, such as health education programs; and to
improve the healthfulness of the environment.
(ii) "Primary care" means health care delivery that
emphasizes first contact care and assumes overall and ongoing
responsibility for a person in health promotion, disease
prevention, health maintenance, diagnosis and treatment of
illness and injury more simple or common than would be treated
with secondary or tertiary care, restorative care and management
of chronic care. Primary care involves a relationship between a
patient and primary care provider or a primary care provider
team, which seeks to achieve comprehensive coordination of the
patient's health care, including the educational, behavioral,
biological and social aspects thereof. It is a patient-oriented
approach that emphasizes the continuity of comprehensive care
over the full spectrum of health services, beginning with patientassessment, wellness and prevention and extending through health
management, lifestyle modification, health education and care
management of needed services. The primary care provider is the
patient's advocate within the health care delivery system. The
appropriate use of consultants, specialists and community and
other resources is an integral function of effective primary
care.
(jj) "Provider team" means a group of health care
professionals, including, but not limited to, physicians,
physician assistants, nurses, nurse practitioners, psychologists,
social workers, physical therapists, dentists and pharmacists,
working together to provide health care services, with each
professional providing health care services in the area and at
the level appropriate to his or her training or expertise.
(kk) "Public health" means that broad segment of health the
mission of which is to fulfill society's interest in assuring
conditions in which people can be healthy; involves organized
community efforts to prevent disease and to promote health, based
on epidemiology; and encompasses both activities undertaken
within the formal structure of government and the associated
efforts of private and voluntary organizations and individuals.
The principal functions of public health are assessment, policy
development and assurance of a healthful natural environment.
(ll) "Quality assurance" means a program to measure and
monitor the quality of care rendered by a group or institution
and includes procedures to remedy deficiencies or problems.
(mm) "Secondary care" means services, other than those
services constituting primary care or tertiary care, provided by
medical specialists who generally do not have first contact with
patients, such as cardiologists, orthopods, urologists and
dermatologists, and includes routine hospitalization, specialized
outpatient care and more complex diagnostic and therapeutic
procedures.
(nn) "Service coordination" means the coordination of
activities, including social and health care services, for the
purpose of placing an individual with special needs within the
appropriate system, including, but not limited to, assessment and
planning based thereon, the arrangement, coordination and
monitoring of services, and advocacy.
(oo) "State agency" means any division, agency, board,
department, authority, bureau, commission, or any other state
governmental body.
(pp) "State health plan" means the plan of the planning
authority required by section four, article one-a, chapter
sixteen of this code and, after the first day of September, one
thousand nine hundred ninety-three, the plan of the authority
required by section seven, article two of this chapter.
(qq) "Tertiary care" means services, other than those
services constituting primary care and secondary care, provided
by highly specialized providers, such as high-tech care,
neurosurgeons or thoracic surgeons, which frequently require
highly sophisticated equipment and support facilities andgenerally are provided in inpatient hospital facilities.
(rr) "Uniform health benefits package" means the uniform
high quality, medically appropriate health care services that the
authority defines pursuant to section one, article four of this
chapter as those services to which universal access should be
ultimately provided.
(ss) "Universal access" means access by the citizens of West
Virginia to the uniform health benefits package regardless of
ability to pay or other socioeconomic factors.
(tt) "Utilization review" means evaluation of the necessity,
appropriateness and efficiency of the use of medical services,
procedures and facilities, including, but not limited to, review
of the appropriateness of admissions to health care facilities,
services ordered and provided, length of stay and discharge
practices, on a prospective, concurrent and retrospective basis.
ARTICLE 2. WEST VIRGINIA HEALTH CARE AUTHORITY.
§16A-2-1. West Virginia health care authority created;
composition; appointment of authority members;
terms of office; expenses and compensation;
meetings; quorum; records; transfer of planning
commission property.
(a) There is hereby created the West Virginia health care
authority. The authority shall be a governmental instrumentality
and a body corporate and shall have the powers and duties set
forth in this chapter.
(b) The authority shall consist of five members, each ofwhom shall be a citizen of West Virginia and shall be appointed
by the governor with the advice and consent of the Senate. The
governor shall appoint the members based on their commitment to
health care reform and their knowledge of and experience and
interest in health and health care, and they shall be
representative of the citizenry of West Virginia. In appointing
members, the governor shall consider the need for geographic
diversity and for expertise in the areas of law, consumer
advocacy, health planning, administration and policy, economics
and finance, medicine and public health. No more than three of
the five members may be of the same political party. The
appointment of the initial members of the authority shall be made
by the governor not later than the first day of July, one
thousand nine hundred ninety-three. The terms of the five
members appointed by the governor first taking office on or after
the effective date of this chapter shall expire as designed by
the governor at the time of appointment, one at the end of the
first year, two at the end of the second year and two at the end
of the third year, after the first day of July, one thousand nine
hundred ninety-three. The successor of each such appointed
member shall be appointed for a term of six years in the same
manner as the original appointments were made, except that any
person appointed to fill a vacancy occurring prior to the
expiration of the term for which his or her predecessor was
appointed shall be appointed only for the remainder of such term.
Each member shall serve until the appointment and qualificationof his or her successor. Members may be reappointed to serve
additional terms: Provided, That no member may serve more than
two consecutive six-year terms.
(c) Before entering upon his or her duties, each member of
the authority shall comply with the requirements of article one,
chapter six of this code. The governor may remove any member
only for cause as provided in article six, chapter six of this
code. Within thirty days of removal or acceptance of the
resignation of a member, the governor shall appoint a person,
qualified as described above, to fill the vacancy.
(d) Each member of the authority may be paid two hundred
dollars for each day of performing services as a member and shall
be reimbursed for all reasonable and necessary expenses actually
incurred in the performance of his or her duties.
(e) The governor shall designate a chair of the authority
from among its members, who shall have a two-year term beginning
on the first day of July. The director of the authority,
provided for in section three of this article, shall serve as the
secretary-treasurer of the authority, but shall not be a member.
The authority may elect from its members such other officers as
it deems necessary.
(f) A majority of the members of the authority shall
constitute a quorum, and a quorum must be present for the
authority to conduct business. The affirmative vote of at least
the majority of the members present shall be necessary for any
action taken by vote of the authority. No vacancy in themembership of the authority shall impair the rights of a quorum
by such vote to exercise all the rights and perform all the
duties of the authority.
(g) The authority shall meet at least monthly, and more
often if it deems necessary. Notwithstanding any other provision
in this code to the contrary, the authority, or any member or
members thereof, may meet informally with the director and the
staff of the authority for the purposes of receiving and
analyzing data, reports and other information and discussing
matters for which the authority is responsible, and all such
informal meetings shall be exempt from the requirements of
section three, article nine-a, chapter six of this code:
Provided, That no decisions requiring a vote of the authority may
be made at such informal meetings, and all other meetings of the
authority shall be conducted and records of the authority shall
be kept in accordance with the provisions of article nine-a,
chapter six of this code.
(h) All rights, assets and other property of the planning
commission, including, but not limited to, any grants and other
moneys, owned by or used in the administration of the planning
commission as of the first day of July, one thousand nine hundred
ninety-three, shall be transferred to the authority effective as
of the first day of July, one thousand nine hundred ninety-three,
the authority being hereby constituted the successor in interest
to the planning commission in all such respects.
§16A-2-2. Powers of the authority generally; hearings;
emergency rules.
(a) The authority shall have the following general powers:
(1) To acquire, own, hold and dispose of property, whether
real, personal, tangible, intangible or mixed.
(2) To enter into leases and lease-purchase agreements,
whether as lessee or lessor.
(3) To borrow money, issue forms of indebtedness and
mortgage and otherwise grant security interests in its property,
including as security for such borrowing or other indebtedness.
(4) To sue and be sued.
(5) To make bylaws and to develop and implement procedures
governing the internal operation and administration of the
authority, including guidelines for purchasing and performing its
duties hereunder involving the expenditure of funds.
(6) To adopt an official seal.
(7) To make contracts of every kind and nature, including,
but not limited to, interstate agreements or compacts, and to
execute all instruments necessary or convenient for performing
its duties hereunder.
(8) To solicit, accept and use gifts, grants, bequests or
donations of property, funds, security interests, money,
materials, labor, supplies or services from any governmental
entity or unit or any person, firm, foundation or corporation and
to do all things necessary, useful, desirable or convenient in
connection with the procurement, acceptance or disposition or use
of such gifts or grants, or complying with the terms of anyagreement entered into.
(9) To solicit and accept proposals in furtherance of the
purposes of this chapter.
(10) To negotiate written agreements and procedures with,
between or among any department, agency or division of state or
federal government, and provide or contract with any governmental
entities or other agencies or persons in this state or other
states to carry out the duties and responsibilities of the
authority.
(11) To require all officers and employees of any state
agency to furnish any records or information which the authority,
or the director on its behalf, requests for carrying out the
purposes of this chapter: Provided, That the authority shall
hold any records or information received confidential as may be
required under state or federal law.
(12) To charge fees for services rendered by, applications
made to, and certificates granted or information distributed by,
the authority, all as determined by rule of the authority, and to
require reimbursement for expenses incurred by the authority in
rendering services, receiving applications, granting certificates
and providing information. Payments of fees shall be deposited
into a special revolving fund in the state treasury. Any
balance, including accrued interest, in the special revolving
fund at the end of any fiscal year shall not revert to the
general revenue fund, but shall remain in the special revolving
fund for use by the authority in performing its duties hereunderin ensuring fiscal years.
(13) To form or participate in the formation of public,
quasi-public or public-private corporations, foundations or other
entities.
(14) To obligate and expend funds prior to the service
provided therefor, so as to enable the authority to provide
start-up funds for various programs and projects.
(15) To exercise any and all other powers necessary for the
authority to discharge its duties and otherwise carry out the
purposes of this chapter.
(b) The authority may conduct such hearings and
investigations as it deems necessary for the performance of its
duties. The authority shall announce the time, date and purpose
of all hearings in a timely manner and such hearings shall be
open to the public except as may be necessary to conduct business
of an executive nature.
(1) All hearings held by the authority, and any
administrative procedures undertaken in connection with and
following the hearing shall be subject to the provisions of
article five, chapter twenty-nine-a of this code except as
specifically stated to the contrary in this section.
(2) Any hearing may be conducted by the authority or by the
director or a hearing examiner appointed for such purpose. Any
member of the authority and the director may issue subpoenas and
subpoenas duces tecum, which shall be issued and served pursuant
to the time, fee and enforcement specifications in section one,article five, chapter twenty-nine-a of this code.
(3) Notwithstanding any other provision of this code to the
contrary, if a person alleges that a factual determination made
by the authority is incorrect, the burden of proof shall be on
such person to demonstrate that such determination is, in light
of the total record, not supported by substantial evidence. The
burden of proof remains with such person in all cases.
(4) After any hearing, after due deliberation, and in
consideration of all the testimony, the evidence and the total
record made, the authority shall render a decision in writing.
The written decision shall be accompanied by findings of fact and
conclusions of law as specified in section three, article five,
chapter twenty-nine-a of this code, and a copy of the decision
and accompanying findings and conclusions shall be served by
certified mail, return receipt requested, upon the party
demanding the hearing and upon its attorney of record, if any.
(5) In accordance with rules of the authority, any
interested individual, group or organization shall be recognized
as affected parties upon written request from the individual,
group or organization. Affected parties shall have the right to
bring relevant evidence before the authority and testify thereon.
Affected parties shall have equal access to records, testimony
and evidence before the authority.
(6) The decision of the authority shall be final unless
reversed, vacated or modified upon judicial review thereof, in
accordance with the provisions of subdivision (7) of thissubsection.
(7) Upon the entry of a final decision by the authority, any
affected party may, within thirty days after the entry of the
decision by the authority, appeal the decision in the circuit
court of Kanawha County. Decisions of the authority shall be
reviewed in accordance with the provisions for judicial review of
administrative decisions set forth in section four, article five,
chapter twenty-nine-a of this code.
(8) The authority may compel obedience to its lawful orders
by injunction or mandamus or other proper proceedings in the name
of the state in any circuit court having jurisdiction of the
parties or of the subject matter, or the supreme court of appeals
directly, and such proceeding shall be determined in an
expeditious manner.
(c) Not later than the first day of September, one thousand
nine hundred ninety-three, the authority shall identify by rule
those state agencies that the authority determines to have
policies, programs, services, duties or responsibilities relating
to health or health care. Such state agencies shall include, but
not be limited to, the department of health and human resources,
the health care cost review authority, the division of workers
compensation, the public employees' insurance agency, the
insurance commissioner of West Virginia and the division of
rehabilitation services.
(d) In addition to rules which the authority is required to
promulgate pursuant to this chapter, the authority may promulgatesuch other rules as it deems necessary to implement the
provisions of this chapter. Notwithstanding any other provision
in this code to the contrary, the secretary of state shall accept
and file as emergency rules under chapter twenty-nine-a of this
code any rules of the authority proposed as such.
§16A-2-3. Director of authority; powers; staff.
(a) Not later than the first day of July, one thousand nine
hundred ninety-three, the governor shall appoint the director of
the authority. The director shall serve at the will and pleasure
of the governor. The authority may at any time recommend to the
governor that the director be removed by submitting in writing to
the governor a recommendation setting forth the cause of such
recommendation.
(b) The director shall be responsible for managing and
administering the daily functions of the authority and for
performing any and all other actions necessary or helpful to the
effective functioning of the authority, and shall take such other
actions as directed by the authority. The director shall be
exempt from the provisions of article six, chapter twenty-nine of
this code. As secretary-treasurer of the authority, the director
shall give bond in the sum of fifty thousand dollars in the
manner provided in article two, chapter six of this code.
(c) The director may hire such other staff for the authority
as he or she deems necessary. Any such staff member, who at the
time of employment is subject to the provisions of article six,
chapter twenty-nine of this code may, at his or her election,remain under said provisions or be exempt from such provisions.
All staff members not covered by article six, chapter twenty-nine
of this code at the time of employment shall be exempt from such
provisions.
(d) The authority may use the services of one or more
employees in any state agency identified pursuant to subsection
(c), section two of this article, from time to time and for so
long as the authority may deem necessary. The authority shall
notify the chief administrator of a state agency in advance in
writing whenever it requires the services of such agency's
employee for more than two days in any two-week period. Upon
receipt of any request for the use of the services of staff of
any state agency, whether by written notice or otherwise, the
chief administrator of such state agency shall make such employee
or employees available to the authority.
§16A-2-4. Additional powers of the authority.
(a) Notwithstanding any other provision of this code to the
contrary, the authority shall ensure the implementation of the
intent and policies set forth in this chapter. In carrying out
this responsibility, the authority shall involve the citizens of
West Virginia, health care providers and payors, all as provided
in this chapter.
(b) The authority shall also be responsible for the
following actions, at such times as required herein or as
otherwise deemed appropriate by the authority, relating to health
or health care:
(1) Quality assurance in the provision of health care
services, and regulations and licensing regarding health care
services, providers and payors;
(2) Data collection, analysis, research, evaluation and
planning with respect to the state's health care system;
(3) The development and implementation of a uniform health
benefits package;
(4) Regulation, management or oversight and rate regulation
for both public and private health care purchasing in the state;
(5) The regulation and oversight of health insurance in the
state;
(6) The development of community care networks in the state;
(7) Planning and implementing methods to finance and contain
the costs of the state's health care system, including, but not
limited to, rate regulation and setting and working with the
federal government to implement at the earliest possible date
state policies and programs consistent with appropriate federal
reforms;
(8) Implementing the provisions of the state health plan;
and
(9) Dissemination to the public of information regarding the
health status of West Virginians, the state's health care system
and state and federal reforms.
(c) The following shall apply to state agencies identified
pursuant to subsection (c), section two of this article.
(1) Each state agency so identified shall have its budgetrequest approved by the authority prior to submitting such
request to the governor or to the secretary of the department of
finance and administration, and the director of the authority
shall serve ex-officio as a member of each board or authority of
each such state agency.
(2) The authority may promulgate legislative rules for all
policies, programs and services relating to health or health care
operated, financed, monitored, managed, controlled, regulated or
provided by any state agency identified by the authority in
accordance with subsection (c), section two of this article. All
such rules promulgated by state agencies relating to health care
prior to the effective date of this article shall continue in
force after the effective date of this article until superseded
or repealed by a rule of the authority. Each state agency shall
review its rules relating to health care and shall present to the
authority not later than the first day of July, one thousand nine
hundred ninety-four, proposed revised rules, consistent with this
legislation, the state health plan and other policies of the
authority, for adoption by the authority: Provided, That such
state agency shall make such deletions, additions or other
revisions to proposed rules as the authority may request.
(d) The authority is hereby designated the agency within the
state with which the federal government and other appropriate
entities shall deal with respect to health care. The authority
shall serve as the state's liaison with the federal government to
transmit information regarding the health care requirements ofWest Virginia and to provide the citizens of West Virginia with
information on federal policy proposals, and shall advocate for
such federal heath care reforms as it determines are in the best
interests of West Virginia.
(e) The authority shall submit, or cause to be submitted, on
a timely basis such applications for waivers, exemptions or
preemptions or such other requests for changes in the manner of
federal health care expenditures laws, rules or regulations,
including ERISA, medicare and medicaid, as it may deem necessary
to implement the provisions of this chapter.
(f) The authority may transfer from one state agency to
another state agency such agency's budget insofar as it pertains
to health care policies, programs and services, so as to
implement the provisions of this chapter, in accordance with a
procedure for notice and reconsideration set forth by rule of the
authority.
(g) Any reference in any other chapter of this code to the
state health planning agency, the health care planning council,
the planning commission or similar terms shall be deemed to mean
the authority.
§16A-2-5. Annual report; compliance by state agencies.
Not later than the first day of November, one thousand nine
hundred ninety-three, and thereafter annually on or by the same
date, the authority shall submit to the governor a report
containing the following:
(a) A review and analysis of the state's health care system,including the effectiveness of any reforms implemented, the
access to health care by all West Virginians and the quality and
cost of health care services provided. The report shall set
forth the general health status of the citizens of West Virginia
and any improvements in status made during the preceding fiscal
year. The report shall include an evaluation of the health-
related policies, programs and services of each state agency
during the preceding fiscal year and such policies, programs and
services related to the state health plan and the other plans and
policies of the authority. The report shall set forth the amount
by which the rate of growth in health care spending decreased
during the preceding fiscal year and an analysis of the effect of
such decrease. The report shall also set forth information or
demographics, health care facilities and the use of such
facilities.
(b) The authority's plan of action for the next state fiscal
year, including, but not limited to, the reforms which it intends
to implement, the policies which it intends to adopt and the
revisions to the state health plan which it intends to make.
(c) The authority's current policies which are not reflected
in any rules or in the state health plan.
(d) Such actions as the authority deems necessary or
appropriate to improve and increase the integration and
coordination of health care functions within state government so
as to improve the efficiency of state government as it relates to
the state's health care delivery and financing system.
(e) The governor shall approve or reject the report within
thirty days of its submission. If the governor rejects the
report, the authority shall, within thirty days, make necessary
revisions and resubmit the report for the governor's approval.
The governor shall approve or reject the report within thirty
days of its resubmittal. If the governor fails to approve or
reject the report within any thirty-day period, the report shall
be deemed approved. The process set forth herein shall continue
until the governor has approved the report. Upon approval of the
report by the governor, the authority shall submit the plan to
the Legislature and each state agency involved with health care
and shall make the report available to the public.
(f) Any plan or report required to be submitted to the
governor or the Legislature by another section in this chapter
may be combined with the annual report required by this section.
(g) The annual report and any other plan or report required
by this chapter shall set forth whether the actions taken were,
or the policy or plan is, consistent with federal health care
reforms and, if not, an explanation of the inconsistency.
§16A-2-6. Policies, programs and services of state agencies to
be consistent.
Each agency of state government shall ensure that its
policies, programs, services, actions and expenditures related to
health or health care are consistent with this chapter, the
annual report, the state health plan and other authority
policies. The authority shall require any state agency which itidentifies by rule as having any power or responsibility
necessary or appropriate to carry out this chapter, the annual
report, the state health plan or other authority policies or has
any other policy, program or service relating to health or health
care, to submit, and each state agency shall submit, a plan to
the authority for its approval, showing how such agency plans to
implement this chapter, the annual report, the state health plan
or other authority policies, describing such other health care
policy, program or service, and any expenditures or proposed
expenditures therefor. The authority shall establish by rule the
process for any such approval.
§16A-2-7. State health plan.
The authority shall update the state health plan required by
section four, article one-a, chapter sixteen of this code, with
the first update to be submitted to the governor not later than
the first day of November, one thousand nine hundred ninety-
three. The state health plan shall set priorities for the
operations of appropriate state agencies and identify the
priorities for the health care delivery system in West Virginia,
such that the allocation of the state's limited resources in
accordance with such priorities may be maximized. The state plan
shall also set forth the authority's policies regarding cost
containment and quality assurance, including practice guidelines;
shall describe those health care services that should be
available on a community, regional or state level, as further
defined by the authority; shall describe the number and types ofresources, including facilities, personnel, major medical
equipment, technologies and other resources required to make such
services available and to accomplish the other goals of the plan;
shall set forth any redistribution, substitution or other change
in such resources needed to make such services available; and
shall further state the extent to which existing health care
services and facilities require modernization, conversion to
other uses or closure, and the extent to which new health
services or facilities need to be constructed or acquired. The
state health plan shall promote the efficient allocation of
health care resources, taking into consideration the sharing,
consolidation or elimination of some resources, the development
of primary care services in underserved areas and the
establishment of community care networks as provided by article
four of this chapter. The authority shall review the state
health plan in connection with any health care reforms or other
actions at the federal level and shall make such revisions as are
necessary to conform the state health plan to appropriate federal
health care reforms and other actions.
§16A-2-8. Single state agency.
The authority shall be the single state agency for the
purposes of medicaid. As such, the authority shall make all
rules, regulations and policies of the state medicaid plan and
shall supervise the administration of the plan by the office of
medical services of the department of health and human resources.
Notwithstanding any other provision in this chapter to thecontrary, the office of the inspector general of the department
of health and human resources shall not be under the supervision
of the authority.
ARTICLE 3. HEALTH CARE DELIVERY SYSTEM.
§16A-3-1. Community care networks; criteria.
(a) Not later than the first day of July, one thousand nine
hundred ninety-four, the authority shall develop a system for
certification of community care networks. A certified community
care network shall provide preventive and primary care and meet
such other criteria as the authority shall set forth by rule. In
establishing such rule, the authority shall consider the
following:
(1) Flexibility in design and approach to meet the needs of
the local community;
(2) Coordinated and cooperative health planning;
(3) Operation by health care providers and direction by a
coordinating body as described in subsection (c) of this section,
both at the community level and within a state framework;
(4) Participation by health care providers within the
community, including both institutional providers and private
practitioners and other noninstitutional providers;
(5) An organized, comprehensive continuum of care from
preventive and primary care, including emergency care, through
secondary and tertiary levels of care, including social and other
appropriate services as necessary;
(6) Care management for each individual in the communitycare network, provided by primary care providers at the community
level, and service coordination when appropriate;
(7) Delivery of health care services by a provider team
within the parameters of the state health plan and consistent
with other authority rules and policies;
(8) A written plan for the use of practice guidelines,
quality assurance and utilization review consistent with the
state health plan and other authority rules and policies;
(9) A system to ensure accountability for the appropriate
use of limited resources and containment of costs consistent with
the state health plan and other authority rules and policies;
(10) A single automated patient health care record; and
(11) Shared communications systems.
(b) Each certified community care network shall be directed
by a coordinating body. The coordinating body shall be
representative of the consumers of health care services,
employers and other purchasers of health care services and the
diverse health care providers within the community, including
institutional providers, private practitioners and other
noninstitutional providers, all of whom shall be residents of the
area served or to be served by the community care network. The
coordinating body shall identify goals for the community care
network and assess the needs of the area served or to be served
by the community care network and may take such other actions as
it deems appropriate to carry out the duties imposed on it by
this article and as are authorized or required by the provisionsof the implementation plan for the establishment of a community
care network approved by the authority, as described in section
three of this article, the cooperative agreement or the
preliminary certificate of public advantage or by the certificate
of public advantage, as appropriate. The coordinating body shall
ensure that the implementation plan approved by the authority is
followed and that the community care network, when established,
accomplishes its goals and fulfills the purposes for which it was
established. The coordinating body shall not be a for-profit
entity but may be otherwise organized as the holders of the
preliminary certificate of public advantage and, after creation
of the coordinating body, as the coordinating body shall deem
appropriate to carry out the duties imposed on it by this
article.
(c) Not later than the first day of December, one thousand
nine hundred ninety-six, the authority shall evaluate the
progress of the community care networks and report on such
evaluation, together with recommendations for future actions, if
any, to the governor and the Legislature.
§16A-3-2. Cooperative agreements.
(a) Two or more health care providers, or one or more health
care providers and a coordinating body, intending to form a
community care network shall enter into a cooperative agreement
prior to the establishment of the network. Any two or more
health care providers, or one or more health care providers and
a coordinating body, intending to enter into discussions that maylead to the establishment, first, of a cooperative agreement and,
ultimately, of a community care network shall file with the
authority, not later than twenty days prior to the proposed date
of entering into the discussions, a letter of intent to discuss
establishment of a cooperative agreement and community care
network. The letter of intent shall provide such information as
the authority may by rule prescribe, including a brief
explanation of how the cooperative agreement to be discussed will
satisfy the goals of the authority and will result in the
establishment of a community care network.
(b) The authority shall review the letter of intent and
determine, on the basis of the information provided to it,
whether the cooperative agreement to be discussed is consistent
with the goals of the authority and will likely result in
establishment of a community care network.
(c) The authority shall provide by rule for notice to each
party to the letter of intent of the authority's determination
and whether the parties may proceed with discussions regarding a
cooperative agreement and a community care network.
(d) The parties shall give the authority notice of all
discussions regarding the cooperative agreement or the community
care network and shall afford the director, or his or her
designee, the opportunity to participate in the discussions, all
as further provided by rule of the authority.
§16A-3-3. Preliminary certificates of public advantage.
(a) Two or more health care providers, or one or more healthcare providers and a coordinating body, that have held
discussions authorized by section two of this article and that
wish to proceed with the establishment of a cooperative agreement
under this section shall file all of the following with the
authority:
(1) A copy of the proposed cooperative agreement.
(2) A description of the potential health care providers to
be included in the proposed community care network and the
geographic area to be included.
(3) An implementation plan that states the following:
(A) How and when each action specified in the cooperative
agreement shall be taken;
(B) How each specified action will meet the goals of the
authority and lead to the establishment of a community care
network; and
(C) How and when, within a period of not more than three
years from the date of issuance of the preliminary certificate of
public advantage provided herein, each of the authority's
criteria for the establishment of a certified community care
network will be met. Any implementation plan filed prior to
adoption by the authority of the rule required by subsection (b),
section one of this article shall use the items set forth in
subdivisions one through eleven, subsection (b), section one of
this article as the criteria to satisfy. The coordinating body
shall be organized not later than six months after the date of
issuance of the preliminary certificate of public advantageprovided herein.
(4) Letters of support for establishment of the community
care network from those citizens, employers and health care
providers, as the authority shall deem representative of the
community or communities to be served by the community care
network.
(5) An analysis of the impact of the proposed cooperative
action on reducing health care costs for consumers, improving
access to health care services, and improving the quality of
patient care, including an assessment of the advantages and
disadvantages of the proposed action;
(6) Any information the parties desire to present to the
authority in support of the cooperative agreement; and
(7) Any additional information the authority considers
necessary to complete its review.
(b) Upon receipt of a filing under subsection (a) of this
section the authority shall conduct a review of the documents
filed to determine whether the proposed cooperative agreement and
implementation plan can reasonably be expected to satisfy the
goals identified by the authority and result in the establishment
of a community care network. The authority shall provide by rule
a procedure to ensure public access to the information filed and
the opportunity for public comment on the proposed cooperative
agreement and implementation plan.
(c) The authority shall issue a preliminary certificate of
public advantage approving a proposed cooperative agreement if itdetermines that the proposed cooperative agreement and
implementation plan can reasonably be expected to satisfy the
goals identified by the authority pursuant to subsection (a),
section one of this article, that the proposed agreement is
likely to result in the establishment of a community care
network, and that the requirements of subsection (e) of this
section are met. The certificate shall specify the goals the
cooperative agreement is required to satisfy, the health care
services or facilities involved in and approved under the
cooperative agreement and, as such, exempt from certificate of
need review pursuant to section four-b, article two-d, chapter
sixteen of this code, and the intervals at which the progress
reports required by section four of this article must be made.
Upon receipt of the preliminary certificate, the parties may
enter into the cooperative agreement.
(d) The authority shall establish by rule the procedure for
notifying the parties to the cooperative agreement of the
issuance or denial of the preliminary certificate of public
advantage and for contesting such issuance or denial. At the
written request of any person and payment of a reasonable fee to
cover the cost of copying, the director shall provide a copy of
a preliminary certificate of public advantage issued under this
section or of a notice denying the preliminary certificate.
(e)(1) The authority may issue a preliminary certificate of
public advantage for a cooperative agreement only if it
determines, on the advice of counsel, all of the following:
(A) That the benefits likely to result from the cooperative
agreement substantially outweigh any disadvantages attributable
to a reduction in competition likely to result; and
(B) That any reduction in competition likely to result from
the cooperative agreement is reasonably necessary to obtain the
benefits likely to result.
(2) In determining whether the criterion under subdivision
(1)(A) of this subsection is met, the authority shall find that
the following are likely to result from the cooperative
agreement: Provided, That the authority may waive one or more,
but not all, of such criteria if the authority determines that
the criteria are substantially met.
(A) The quality of health care provided to residents of the
state will be enhanced;
(B) A health care provider, if any, and health care
facilities that customarily serve the communities in the area
likely affected by the cooperative agreement will be preserved;
(C) Services provided by the health care providers that are
parties to the cooperative agreement will improve cost
efficiency;
(D) The use of health care resources and equipment in the
area likely affected by the cooperative agreement will improve;
(E) The arrangement will result in lower health care costs
or greater access to health care services than exist in the area
likely affected by the cooperative agreement prior to the
effective date of the agreement; or
(F) Duplication of health care resources in the area likely
affected by the cooperative agreement will be avoided.
(3) The authority's evaluation of any disadvantages
attributable to any reduction in competition likely to result
from the cooperative agreement may include, but need not be
limited to, the following factors:
(A) The extent of any likely adverse impact on the ability
of health maintenance organizations, preferred provider
organizations or other health care payors to negotiate optimal
payment and service arrangements with hospitals, physicians,
allied health care professionals or other health care providers;
(B) The extent of any reduction in competition among
physicians, allied health professionals, other health care
providers or other persons furnishing goods or services to, or in
connection with, hospitals that is likely to result directly or
indirectly from the cooperative agreement; and
(C) The extent of any likely adverse effect on patients in
the quality, availability and price of health care services.
(4) In order to determine that the criterion under
subdivision (1)(B) of this subsection is met, the authority shall
consider whether any other arrangements that are less restrictive
on competition would likely achieve substantially the same
benefits or a more favorable balance of benefits over
disadvantages than that likely to be achieved from the
arrangement contemplated by the proposed cooperative agreement.
(d) The authority may condition the issuance of apreliminary certificate of public advantage on a modification of
all or part of a proposed cooperative agreement, including the
elimination of any restrictions on competition that are not
reasonably related to the goals of controlling costs, improving
access or quality, or the goals of the implementation plan, or
both. The authority may also establish conditions for approval
that are reasonably necessary to protect against any abuses of
private economic power, including the unreasonable exercise of
power by an institutional health care provider that adversely
affects one or more noninstitutional health care providers or by
a secondary or tertiary care provider that adversely affect
preventive or primary care providers, and to ensure that the
arrangement is appropriately supervised and regulated by the
state.
(e) Additional cooperative agreements or amendments to the
existing cooperative agreement or agreements necessary to effect
the proposed community care network shall be submitted to the
authority for approval, modification or rejection by the process
described in this section. The preliminary certificate of public
advantage shall be amended as necessary to reflect the
authority's determination.
§16A-3-4. Progress reports; revocation of preliminary
certificate of public advantage; rules.
(a) The holders of a preliminary certificate of public
advantage shall submit progress reports to the authority at
intervals specified in the preliminary certificate. A progressreport shall contain all of the following:
(1) A description of the progress of the holders of the
preliminary certificate in taking the actions specified in the
cooperative agreement and in meeting the goals specified in the
preliminary certificate and the criteria for the establishment of
a community care network as set forth in the holders' approved
implementation plan;
(2) An analysis of the impact of the cooperative agreement
on reducing health care costs for consumers, improving access to
health care services and improving the quality of health care;
(3) If the holders of the preliminary certificate of public
advantage are not making the progress required under the
implementation plan, the reasons for the lack of progress and a
proposed revised implementation plan; and
(4) Any additional information the authority considers
necessary to determine the progress of the cooperative agreement
and under the implementation plan.
(b) If, at the end of three years, the holders of the
preliminary certificate of public advantage have not established
a certified community care network, the holders must apply for an
extension of their preliminary certificate of public advantage.
In such case, the holders shall submit to the authority the
documents and other information, and the authority shall make the
findings, required by section three of this article.
(c) The authority may rescind a preliminary certificate of
public advantage by issuing a rescission order if the holders ofthe preliminary certificate fail to make the progress reports
required by subsection (a) of this section or if it determines,
on the basis of its review of the cooperative agreement, progress
reports and any other information available to it, that the
holders are not meeting the goals specified in the preliminary
certificate, that the establishment of a community care network
in accordance with the implementation plan is unlikely, or that
the likely benefits from the cooperative agreement or proposed
community care network no longer outweigh any disadvantage
attributable to any potential reduction in competition resulting
from the cooperative agreement or proposed community care
network.
(d) Prior to issuing an order rejecting an extension or
rescinding a preliminary certificate of public advantage, the
authority shall give notice to the health care providers of its
intention to issue the order, shall publish such notice as a
class I legal advertisement, as defined in article three, chapter
fifty-nine of this code, in a newspaper or newspapers of general
circulation in the community or communities affected by the
cooperative agreement and give such other notice as the authority
may prescribe by rule. The notice shall contain such information
and shall provide for a period of time during which the authority
will accept evidence regarding its proposed order, all as
provided by rule of the authority. If the authority determines
that there is no longer any reason for rejection of the extension
or rescission of the preliminary certificate, it shall so notifyeach of the holders and any interested party from whom it
received evidence. If the authority determines that there is
still reason to reject the extension or rescind the preliminary
certificate of public advantage, it shall issue a rejection or
rescission order.
(e) One or more of the holders of the preliminary
certificate of public advantage or any other person adversely
affected by the authority's order may appeal a rejection or
rescission order by filing written notice of appeal with the
authority not later than thirty days after its issuance. If an
appeal is filed, the authority shall appoint an attorney to
conduct a hearing on whether the holders of the preliminary
certificate have substantially complied with the cooperative
agreement and plan of implementation approved by the authority
and whether the likely benefits of the cooperative agreement
continue to outweigh any disadvantages attributable to any
reduction in competition resulting from the cooperative
agreement. The burden of proof is on the party or parties filing
the appeal.
(f) The hearing officer shall issue a report to the
authority that sets forth findings of fact and conclusions of
law, with a recommendation to the authority for further action.
The authority shall accept, reject or modify, in whole or part,
the recommendation and shall issue a final order. Such order is
appealable in the circuit court of Kanawha County, or to the
judge thereof in vacation. During the pendency of the appealbefore the hearing officer, authority, court or judge, the
rejection or rescission order shall be held in abeyance.
(g) The authority shall adopt the rules required to
implement sections two through four of this article, including
rules that specify the additional information required to be
included in progress reports and establishing criteria to be used
by the authority in deciding whether to issue a rejection or
rescission order, not later than the first day of August, one
thousand nine hundred ninety-three.
(h) If a party to a cooperative agreement that is issued a
preliminary certificate of public advantage terminates its
participation in the agreement, the party shall file a notice of
termination with the authority not less than thirty days before
the termination takes effect. If all parties to the cooperative
agreement terminate their participation in the agreement, the
authority shall revoke the preliminary certificate of public
advantage for the agreement.
(i) If a rejection or rescission order is upheld, or a
preliminary certificate is revoked, the health care providers
subject to the preliminary certificate shall ensure to the
satisfaction of the authority the continuing care of the health
care consumers affected by the cooperative agreement.
(j) For the purposes of rejection or rescission of a
preliminary certificate of public advantage, the unavoidable
costs associated with cancelling the cooperative agreement shall
be considered when weighing the benefits against thedisadvantages of the arrangement.
(k) The authority shall maintain a file of all cooperative
agreements for which preliminary certificates of public advantage
have been issued and remain in effect.
§16A-3-5. Certificate of public advantage.
(a) After issuance of a preliminary certificate of public
advantage, a community care network may be certified by meeting
the criteria provided for in section one of this article and
receiving from the authority a certificate of public advantage
pursuant to the provisions of this section.
(b) The authority shall set forth by rule the state's method
of approval and continuing active supervision of a community care
network, including recertification not less often than every
three years and a procedure for revoking a certificate. The
procedures established and findings required by the authority
shall be similar to, and shall involve no less state approval or
continuing active supervision, or public notice and comment, than
those required by sections two through four of this article for
preliminary certificates of public advantage.
(c) The authority may establish one or more levels of
community care networks in the manner described in this section,
all as the authority shall determine necessary to ensure a smooth
progression from a cooperative agreement to a certified community
care network.
§16A-3-6. Antitrust; state action.
(a) The Legislature hereby specifically finds that theintegration of and cooperation and collaboration among health
care providers, including those that would otherwise be in
competition, often provide more benefits than the competition
that would otherwise be provided and, consequently, with the
determinations made by the authority pursuant to this article,
justify exemption from the antitrust provisions of state and
federal law.
(b) It is the intent of this article to require the state,
through the authority, to provide direction, supervision and
control over cooperative agreements and community care networks
entered into under this article. To achieve the goals of this
chapter, it is the intent that this state direction, supervision
and control of cooperative agreements and community care
networks, and actions taken in connection therewith, will provide
state action immunity under federal antitrust laws to the health
care providers and coordinating bodies that enter into
discussions authorized under section two of this article, into
cooperative agreements under section three of this article or
into community care networks under section five of this article.
(c) The antitrust provisions set forth in article eighteen,
chapter forty-seven of this code do not apply to discussions
authorized under section two of this article, cooperative
agreements entered under section three of this article or a
community care network established under section five of this
article, or to any discussion or other conduct pertaining to a
cooperative agreement or community care network or carried outpursuant to a cooperative agreement or in a community care
network. Any contract, business or financial arrangement or
other activity, practice or arrangement involving health care
providers or other persons that is approved by the authority
under this article does not constitute an unlawful contract,
combination or conspiracy in unreasonable restraint of trade or
commerce. Approval by the authority is an absolute defense
against any action under the state antitrust laws.
(d) Nothing in this article gives the authority or any
person the right to require a health care provider or other
person to discuss or enter into a cooperative agreement or a
community care network. This article has no effect on any
cooperative agreement made, cooperative action entered into or
network formed by two or more health care providers or other
persons who are not acting under this article.
§16A-3-7. Incentives for community care networks.
The ultimate goal for community care networks is to provide
universal access to the citizens of West Virginia to a uniform
health benefits package at a reasonable, affordable cost. The
focus of community care networks shall be on maintaining the
health of West Virginia's citizens and providing incentives for
the most appropriate and efficient way of addressing their health
care needs. In furtherance of this goal, the authority is hereby
authorized and directed to establish by rule, not later than the
first day of July, one thousand nine hundred ninety-four,
incentives for health care providers to organize into communitycare networks and for consumers to use the services provided by
community care networks, and such other incentives as it deems
necessary to implement the reforms set forth in this chapter and
the provisions of the state health plan. In establishing such
rules, the authority shall consider preferential reimbursement
for providers in community care networks, decreased deductibles
and copayments for consumers participating in community care
networks, reimbursement rates reflecting the priorities of
preventive and primary health care, reimbursement rates
encouraging providers to serve rural areas, uniform billing forms
and procedures for providers within community care networks, and
uniform utilization review procedures for providers within
community care networks.
§16A-3-8. Technical assistance; demonstration projects.
(a) The authority is hereby authorized and directed to
provide technical assistance for expanding and supporting
existing community health centers, to work with private
practitioners in forming rural health clinics or federally
qualified health centers, to assist and support public health
departments in expanding their services to offer comprehensive
primary care services, to assist communities in recruiting
primary care practitioners to areas designated as underserved by
the state, to assist and support small rural hospitals in
developing primary care services and to assist providers in
establishing outreach programs to underserved communities.
(b) The authority shall also provide technical assistance tocommunities and health care providers who desire to establish
community care networks. The authority shall, not later than the
first day of July, one thousand nine hundred ninety-four, develop
a program for no fewer than five community care network
demonstration projects. The authority may provide grant money
for all or any part of a demonstration project, either with funds
appropriated to it by the Legislature or through federal, private
or other grant funds, or both: Provided, That the authority may
make grants only to nonprofit organizations and in making grants
shall consider the financial need of the communities or health
care providers, or both. The projects shall to the extent
possible demonstrate different methods of establishing community
care networks. The projects may include community organization,
planning, development and implementation of a cooperative
agreement, and development and implementation of a community care
network, or any of such actions. The authority shall report to
the governor and the Legislature from time to time, not less
often than annually, on the progress of any demonstration
project.
(c) The authority shall explore the creation of a low-
interest revolving loan fund for community-based primary care
centers and for community care networks and shall make a
recommendation regarding such loan fund to the governor and the
Legislature not later than the first day of December, one
thousand nine hundred ninety-three.
§16A-3-9. Long-term care.
(a) The authority shall be responsible for comprehensive
long-term care planning and shall develop and submit to the
governor and the Legislature, not later than the first day of
September, one thousand nine hundred ninety-five, a comprehensive
state long-term care plan. The long-term care plan shall set
forth goals and objectives taking into consideration a full range
of long-term care services and activities and policy with respect
to the following:
(1) A system for long-term support based upon an
individual's functional needs and not categorical labels.
(2) Policies, programs and resource allocation
recommendations that reflect a shift away from providing
traditional care in medically oriented facilities toward
providing support in natural environments whenever possible.
(3) The development of an effective system of service
coordination for long-term care consumers that provides for
varying levels of support depending upon the needs of the
individual.
(4) Recommendations for the development, integration and
coordination of services, including, but not limited to, the
following:
(A) Case management;
(B) In-home services;
(C) Care-giver support;
(D) Alternative community living;
(E) Rehabilitation services;
(F) Mental health services;
(G) Transportation services;
(H) Assistive technologies;
(I) Long-term care facilities, in patient mental health
facilities and rehabilitation facilities;
(J) Education; and
(K) Other services to meet people's basic needs.
(5) Strengthening informal support systems as part of long-
term care; and
(6) Emphasis on consumer participation and direction.
(b) The authority may from time to time engage in research
and demonstration activities for the purpose of designing,
testing and implementing statewide strategies for long-term care
service development in accordance with the long-term care plan.
§16-3-10. Wellness; community-based health promotion programs.
(a) The Legislature hereby specifically finds that good
health is greatly influenced by social and economic factors and
individual lifestyles and behaviors and that organizational and
institutional changes must be made to support individual change.
(b) The authority shall develop or cause to be developed,
not later than the first day of November, one thousand nine
hundred ninety-three, a plan for educating West Virginians on
proper access and use of the health care system and for
encouraging West Virginians to adopt and maintain healthful
lifestyles. Such plans, among other measures, shall encouragepeople to:
(1) Establish a relationship with a primary care provider
before they get sick;
(2) Assure continuity of care by remaining with one primary
care provider unless there is a substantial reason to change
providers;
(3) Use a primary care provider rather than a hospital
emergency room for nonemergency health care problems;
(4) Follow a recommended schedule of preventive care;
(5) Follow the advice and instructions of their health care
providers;
(6) Take an active, informed role in the treatment process;
(7) Learn principles of self-care; and
(8) Complete advance directive documents such as those
provided for in articles thirty and thirty-a, chapter sixteen of
this code.
(c) The authority shall also support and encourage health
promotion and wellness in the workplace by providing educational
and administrative support to entities, including, but not
limited to, any nonprofit corporation organized to promote
wellness among private employers, to promote, coordinate, assist
and disseminate successful wellness initiatives and shall promote
and support the creation and maintenance of organized community-
based health promotion programs throughout the state.
§16A-3-11. School health.
The authority shall work with the state department ofeducation to further refine the strategy to implement the school
health projects of the department of education and the school
health committee, including identifying training requirements,
determining sources and required amounts of funding, and
establishing a time line for implementing comprehensive school
health programs in grades kindergarten through twelfth in every
school in the state not later than the academic year beginning in
one thousand nine hundred ninety-seven.
§16A-3-12. Comprehensive children's health services.
The authority shall work with the governor's cabinet on
children and families to implement the comprehensive health
services recommended in the report of the children's commission
within the cabinet.
ARTICLE 4. HEALTH CARE BENEFITS; FINANCING; COST CONTAINMENT.
§16A-4-1. Uniform health benefits package.
(a) In furtherance of achieving the goal of providing
universal access to a uniform health benefits package, as
intended by this chapter, the authority shall define a uniform
health benefits package for the citizens of West Virginia not
later than the first day of December, one thousand nine hundred
ninety-three. The uniform health benefits package shall include,
but not be limited to, health education, child health care,
pregnancy-related care, behavioral health services, emergency
care, preventive and primary care, and necessary and appropriate
secondary and tertiary care. In developing the uniform health
benefits package, the authority shall consider the following:
(1) Preventive care, including health promotion and primary
care as priorities.
(2) Return to function as a key consideration for secondary
and tertiary care.
(3) Basing decisions about providing health care services on
individual needs, considering the effectiveness of treatment,
quality of life and long-term benefits.
(4) Offering benefits within the context of a system of
managed care, with practice guidelines setting boundaries for
treatment decisions.
(b) The authority shall also determine which health care
services shall be available on a community level, a regional
level or a state-wide level.
(c) Notwithstanding subsection (a) of this section, the
authority shall revise the state's uniform health benefits
package from time to time as necessary to coordinate with
applicable federal health care reform.
§16A-4-2. State purchasing.
(a) Beginning the first day of January, one thousand nine
hundred ninety-four, the authority shall coordinate the health
care purchasing and payment functions of the state public
employees' insurance agency, the division of workers'
compensation, the department of health and human resources, the
division of rehabilitation services, the division of corrections
and other appropriate state agencies designated by rule of the
authority: Provided, That the authority shall not consolidatethe programs or funds of such agencies or require the transfer of
any program or the agency's budget therefor to the authority
without prior legislative approval, except as herein expressly
provided. The authority shall establish by rule the procedures
for purchasing and payment by such agencies. Such rules shall
consider, among other things, the following:
(1) The benefits package provided by such agency;
(2) The fees and charges reimbursed by such agency;
(3) Utilization review and other cost control methods;
(4) Coordination with other state agencies;
(5) Incentives for the development of community care
networks, preventive and primary health care services and
services in rural areas;
(6) Requirements for personal responsibility of health and
health care;
(7) Administrative forms and procedures; and
(8) Other appropriate policy matters.
(b) The authority may negotiate and contract with health
care providers and other appropriate groups on behalf of all or
any one of the agencies.
(c) The authority shall undertake a study of consolidating
the health care purchasing programs or the health care funds, or
both, of the state and shall submit a report of such study to the
governor and the Legislature not later than the first day of
December, one thousand nine hundred ninety-four.
§16A-4-3. Financing; actuarial study; federal actions.
(a) The authority shall contract for and undertake on-going
actuarial studies and economic analyses, beginning not later than
the first day of September, one thousand nine hundred ninety-
three, to provide the authority with information needed to
develop and implement state and federal health care reforms. The
studies and analyses shall include:
(1) The cost of the uniform health benefits package defined
under section one of this article;
(2) The financial impact on consumers, health care
providers, health insurers and state government of proposed
reforms, such as a shift to community rating for health insurance
underwriting and guaranteed policy renewability;
(3) The financial impact on West Virginia and its citizens
of reforms being proposed at the federal level;
(4) The effect of various financing mechanisms, including
any proposed at the federal level, on different segments of the
state's economy, defining them in relation to the existing health
care financing system;
(5) The effect of any financing proposal on the border areas
of the state;
(6) The amount of state subsidy required under the various
proposals submitted;
(7) The projected savings from the implementation of various
cost containment methods; and
(8) Such other information as the authority may deem
necessary or appropriate to carry out its responsibilities underthis chapter.
(b) The authority shall, at least quarterly, assess its
policies and plans as they relate to the federal government's
plans with respect to health care. The authority shall obtain
such additional information, conduct such further research and
revise its policies and plans as may be necessary to ensure that
the state's health care policies are consistent with federal
policy reforms and that the authority can take any actions
necessary to implement appropriate federal reforms in West
Virginia at the earliest date possible under the applicable
federal laws or regulations.
(c) The authority shall consider the methods for integrating
any federally funded and federally controlled programs into any
programs to be funded or controlled, or both, by the state. The
authority shall pursue any federal waivers, exemptions or
preemptions as needed for such integration.
(d) The authority may seek to become a demonstration state
for federal health care reform.
(e) Based upon the information derived from the studies and
analyses compiled pursuant to this section and any health care
reforms at the federal level, the authority shall submit to the
governor and the Legislature:
(1) Not later than the first day of December, one thousand
nine hundred ninety-three, a plan detailing the costs and
benefits of using federal funds to the greatest extent legally
possible and appropriate, including waivers and exemptions neededfrom the federal government;
(2) Not later than the first day of December, one thousand
nine hundred ninety-four, a plan for integrating workers'
compensation medical benefits with the provisions of health care
services included in the uniform health benefits package; and
(3) Not later than the first day of July, one thousand nine
hundred ninety-five, a plan to enable individuals and employers
for whom participation would be more economical than the purchase
of private insurance to purchase insurance from the public
employees' insurance agency.
§16A-4-4. Expenditure targets; global budgeting.
The Legislature anticipates the establishment by the federal
government of global budgeting as a method to contain health care
costs. To prepare for such budgeting, and to develop expertise
in expenditure targets for various types of health care
providers, the authority shall not later than the first day of
January, one thousand nine hundred ninety-four, develop
retrospective expenditure totals, by provider type, for the
fiscal year ending on the thirtieth day of June, one thousand
nine hundred ninety-three, using available data. The authority
shall also, based on available data, estimate expenditure targets
for the fiscal years ending on the thirtieth day of June, one
thousand nine hundred ninety-four and one thousand nine hundred
ninety-five, respectively. Not later than the first day of July,
one thousand nine hundred ninety-five, the authority shall
develop a global budget for both institutional andnoninstitutional providers for the fiscal year beginning on the
first day of July, one thousand nine hundred ninety-six. Such
global budget and any cost containment methods to keep
expenditures within the budget shall be established by rule of
the authority in accordance with chapter twenty-nine-a of this
code and may not be designated as emergency rules. Such rules
and other methodologies used by the authority to set expenditure
targets and develop a global budget shall be revised from time to
time as necessary to conform to federal health care reforms.
§16A-4-5. Certificate of need allocation.
The Legislature hereby specifically finds that the state's
health care system must avoid duplication of services, encourage
shared use of high-tech diagnostic equipment, efficient use of
equipment and technology and eliminate over-capacity caused by
excess equipment and technology. Further, the state must avoid
the acquisition or creation of unneeded specialty services. To
that end, the authority shall establish by rule, not later than
the first day of November, one thousand nine hundred ninety-
three, a process for determining a budget for capital
expenditures for the fiscal year beginning the first day of July,
one thousand nine hundred ninety-four, and for each fiscal year
thereafter. Such process and budget shall:
(a) Establish classes of certificate of need and the maximum
aggregate principal amount of certificates, that may be issued
within each class during a year;
(b) Support the regionalization of high-tech and specialtycare and the development of primary care and other
community-based, low-cost services;
(c) Support the establishment and use of community care
networks;
(d) Provide for exceptions in emergency circumstances that
pose a threat to public health; and
(e) Provide for the application of the budget and
certificate of need allocation by the health care cost review
authority pursuant to article two-d, chapter sixteen of this
code.
§16A-4-6. Rates.
(a) Not later than the first day of September, one thousand
nine hundred ninety-four, the authority shall establish by rule
a system of payment for institutional health care providers to be
implemented by the state health care cost review authority, based
on the medicare diagnostic related group payment system, with
such modifications as shall be deemed by the authority necessary
to serve the best interests of the state's health care system.
(b) Not later than the first day of September, one thousand
nine hundred ninety-five, the authority shall establish by rule
a system of payment for noninstitutional health care providers to
be implemented by the state health care cost review authority,
based on the resource based relative value system, with such
modifications as shall be deemed by the authority necessary to
serve the best interests of the state's health care system.
(c) Not later than the first day of September, one thousandnine hundred ninety-six, the authority shall submit to the
governor and the Legislature a plan for establishing and
implementing a system of prepaid, prospective payment for all
health care providers, to be implemented by the state health care
cost review authority, for the delivery of health care services
included in the uniform health benefits package.
(d) Upon establishment of uniform rates as provided in this
section, each health care provider shall accept as payment in
full for the delivery of such services the amount so established.
In such instance, the health care provider shall bill the payor
directly for the services and shall not bill the beneficiary or
any other person on behalf of the beneficiary and, except for
deductibles or other payments specified in the applicable plan or
plans, the beneficiary shall not be personally liable for any of
the charges, including any balance claimed by the provider to be
owed as being the difference between that provider's charge or
charges and the amount established as set forth in this section.
Any health care service which is not included in the uniform
health benefits package shall be the responsibility of the
beneficiary.
(e) Both public and private payors and health care providers
shall be subject to any rates set in accordance with this
section.
(f) The rate-setting methodologies and plan for prepayment
hereinabove provided shall be coordinated to the extent possible
with any federal prospective payment system or other reforms, andthe authority shall revise its rules, or shall present to the
governor and Legislature legislation required, to comply with
such federal reforms.
(g) As soon as possible, in relationship to federal health
care financing reforms, the authority shall develop and submit to
the governor and Legislature a mechanism for recapturing any
savings in the state's health care system and applying such
savings to finance universal access to the uniform health
benefits package.
(h) In establishing any rules and plans under this section,
the authority shall consider the incentives required by section
seven, article three of this chapter and shall recognize the
personal responsibility of each individual for his or her own
health and health care.
§16A-4-7. Insurance reform.
Not later than the first day of December, one thousand nine
hundred ninety-four, the authority shall submit to the governor
and Legislature a plan of health insurance reforms for the state.
Such plan shall consider:
(a) A shift to community ratings and a risk adjustment
strategy to equalize the risk to insurance companies as a shift
to community rating occurs;
(b) Coverage of all West Virginians for the uniform health
benefits package;
(c) The cost of the uniform health benefits package,
including any additional premium allowance for administration bythe insurer;
(d) Offer of at least one managed care option;
(e) Guaranteed loss ratio standards, with methods for
rebating excess premiums;
(f) Quality assurance;
(g) Guaranteed renewability of an insurance policy at a
premium rate that does not take into account claims experience or
any change in health status of the insured that occurred after
initial issuance of the policy;
(h) Portability of insurance coverage from employer to
employer or to unemployment and back to employment;
(i) Appropriateness of waiting periods and preexisting
conditions;
(j) Supervision of health care insurance by the authority,
including procedures for appeals; and
(k) Standard forms and data elements.
§16A-4-8. Office of consumer advocacy established; appointed by
director; promulgation of rules; authority.
(a) There is hereby created within the authority the office
of consumer advocacy. The director of the authority shall
appoint the consumer advocate or advocates for such office.
(b) The authority shall promulgate rules to effect the
purposes of this section.
(c) In addition to the authority established under the rules
promulgated by the authority, the office of consumer advocacy
may:
(1) Institute, intervene in, or otherwise participate in, as
an advocate for the public interest and the interests of health
care consumers, proceedings in state and federal courts, before
federal and state agencies, including, but not limited to, the
insurance commissioner of West Virginia, the department of health
and human resources, and state health care cost review authority,
concerning applications, proceedings or complaints before them or
the review of any act, failure to act, or order of such agency;
(2) Review information, data and studies of health care
costs for the purposes of reviewing, establishing, investigating
or supporting any policy regarding health care financing;
(3) Exercise all the same rights and powers regarding
examination and cross-examination of witnesses, presentation of
evidence, rights of appeal and other matters as any party in
interest appearing before the authority;
(4) Hire consultants, experts, lawyers, actuaries,
economists, statisticians, accountants, clerks, stenographers,
support staff, assistants and other personnel necessary to carry
out the provisions of this section, which personnel shall be paid
from special revenue funds appropriated for the use of the
office;
(5) Contract for the services of technically qualified
persons in health care matters to assist in the preparation and
presentation of matters before the courts, the authority or
federal or state agencies, which persons shall be paid from
special revenue funds appropriated for the use of the office;
(6) Make recommendations to the Legislature concerning
legislation to assist the office in the performance of its
duties;
(7) Communicate and exchange data and information with other
federal or state agencies, and with other interested parties,
including, but not limited to, health care consumers, insurance
companies or other interested parties; and
(8) Perform other duties to effect the purposes of the
office.
(d) The provisions of this section do not apply to any
matter pending prior to the first day of July, one thousand nine
hundred ninety-three. All proceedings and orders in connection
with these prior matters shall be governed by the law in effect
at the time of the initiation of the matter.
(e) The office of consumer advocacy shall be funded in an
amount to be appropriated by the Legislature from special revenue
funds.
§16A-4-9. Uniform billing.
The authority shall develop uniform billing forms, uniform
electronic billing procedures and other uniform claims procedures
for all health care providers by the first day of January, one
thousand nine hundred ninety-four.
ARTICLE 5. INFORMATION SYSTEM; REQUIREMENTS.
§16A-5-1. Information system.
(a) The authority shall develop an information system that
provides data with which the authority can evaluate health carereform initiatives and the effectiveness and efficiency of health
care services in the state with which the public can make health
care decisions. The authority shall be responsible for
coordinating data systems, analyzing studies and developing and
disseminating information to policy makers, health care providers
and the public. Specifically, the authority shall be responsible
for the following:
(1) Development of a base line and on-going studies to
determine the effectiveness of the policies implemented by the
authority, specifically with respect to access, cost and quality
of care;
(2) Applied research using existing and newly established
health care data bases and promotion of applications based on
existing research;
(3) In cooperation with physicians, the development of
outcome-based practice guidelines;
(4) Development and implementation of data collection
procedures and standards and minimum data elements to ensure a
high level of cooperation from health care providers, health
insurers and state and local agencies, and promulgation of rules
not later than the first day of January, one thousand nine
hundred ninety-four establishing such collection procedures and
standards and such minimum data elements for state and local
agencies indicated by such rules as maintaining data bases
relating to health or health care;
(5) Participation as a partner or sponsor of private sectorinitiatives that promote publicly disseminated applied research
on health care delivery, outcomes, costs, quality and management;
(6) Technical assistance to health information systems
planners in the purchase and acquisition of information systems
and related software and such other technical assistance
determined necessary by the authority;
(7) Dissemination of information to state policy makers,
health care providers and the public, and ensuring that such
information is understandable to the general public;
(8) Assistance to researchers, whether public, private or
public-private, in obtaining access to health-related data bases;
(9) Preparation of a plan to develop medical records,
including electronic medical records, with common data elements
for use within community care networks, and, notwithstanding
anything in this code to the contrary, establishment by rule of
processes to permit the use of electronic signatures by health
care providers in conjunction with electronic medical records and
invoices for payment based on such records.
(10) Publication of studies on the use of health care
services to assist community care networks in organizing and
developing their health care services;
(11) Development of data and methods that can be used to
calculate regional and statewide spending limits and various
options for expressing spending limits, such as maximum
percentage growth rates or actuarially adjusted average per
capita rates that reflect the demographics of the state or aregion of the state;
(12) Development of methods to adjust spending limits to
account for patients who are not West Virginia residents, to
reflect care provided to a person outside the person's region,
and to adjust for demographic changes over time; and
(13) Adoption of rules defining standards for access to, and
retention, security and destruction of, electronic medical
records.
(b) Data and research initiatives by the authority shall:
(1) Serve the needs of the general public, payors and
providers of public sector health care programs, employers and
other purchasers of health care, health care providers and health
insurers;
(2) Promote publicly disseminated, applied research on
health care delivery, outcomes, costs, quality and management;
(3) Conduct research and promote health care applications
based on scientifically sound and statistically valid methods;
(4) Be statewide in scope so as to benefit health care
purchasers and providers in all parts of West Virginia and to
ensure a broad and representative data base for research,
comparisons and applications;
(5) Emphasize data that is useful, relevant and nonredundant
of existing data: Provided, That the initiatives may duplicate
existing private activities if duplication is necessary to ensure
that the data collected will be in the public domain;
(6) Be structured to minimize the administrative burden onhealth insurers, health care providers and the health care
delivery system and to minimize any effect on the privacy of
individuals;
(7) Promote continuous improvement in the quality,
efficiency and effectiveness of health care delivery; and
(8) Determine the need for new data bases.
(c) Data and research initiatives related to public sector
health care programs shall:
(1) Assist the state's current health care financing and
delivery programs to deliver and purchase health care in a manner
that promotes improvements in health care efficiency and
effectiveness;
(2) Assist the state in its public health activities,
including the analysis of disease prevalence and trends and the
development of public health responses;
(3) Assist the state in developing and refining its overall
health policy, including policy related to health care costs,
quality and access; and
(4) Provide a data source that allows the evaluation of
state health care financing and delivery programs.
(d) The authority may carry out its responsibilities under
this article either directly or indirectly by delegating to
another state agency or by contracting with any public, private
or public-private entity.
§16A-5-2. Collection of data; information to be provided.
(a) The authority shall collect data from health careproviders, health insurers and individuals in the most cost-
effective manner, which does not unduly burden the providers,
insurers or individuals. The authority may require health care
providers and health insurers to collect and provide, subject to
the provision of this article requiring confidentiality, patient
health records and to cooperate in other ways with the data
collection process. Each payor of health care services in the
state shall furnish any information reasonably required by the
authority. Such information shall be provided by electronic
media, tape or diskette if available or as otherwise requested by
the authority.
(b) Each employer in the state providing health insurance
coverage to its employees shall provide the authority, not later
than the first day of July, one thousand nine hundred ninety-
four, and on or by the first day of July of each year thereafter,
information regarding any health care coverage provided by the
employer for its employees, including the number and employment
status of those covered, total and individual costs, health care
services covered, deductibles, copayments and other relevant
information, all as reasonably required by the authority. The
employer shall also inform each employee in writing of the cost
of that employee's health care coverage incurred by the employer.
For purposes of this subsection, "employee" includes any family
members or other dependents included with the employee for
coverage.
(c) Each agency of state government required to submit areport regarding any aspect of health care to the Legislature or
the governor, or both, shall, at the same time, submit a copy of
such report to the authority.
(d) The state health care cost review authority shall
provide to the authority all data it receives regarding hospital
discharges, nursing home occupancy rates, ambulatory-surgical
data and similar information. In addition to information
currently received, the health care cost review authority shall
require each hospital to provide it with such other information
as the authority may reasonably request to carry out its duties.
The insurance commissioner of West Virginia shall provide to the
authority any information upon request and shall enforce the
applicable requirements of this section. The university of West
Virginia board of trustees and the board of directors of the
state college system shall provide to the authority all
information on health professions students and residents as the
authority reasonably requests. If such information is not
available, the boards shall take necessary steps to compile such
information.
(e) Each agency of state government, including those
specified in subsection (d) of this section, shall provide the
authority with any data or information requested, including data
that are considered confidential or otherwise protected from
external release. Such data shall be subject to the same state
and federal statutory provisions as are applicable to the agency
from which the data was originally obtained. Data which isotherwise protected by statue shall not be further transferred to
any entity by the authority without a separate written agreement
with the agency which originally provided the data to the
authority.
(f) All data collected and maintained by any state agency
relating to health care or any aspect of health care delivery in
West Virginia, and any compilation, summary or analysis thereof
or other information in connection therewith, shall be the
property of the authority and shall be collected, maintained and
used by such state agencies only in accordance with the rules,
policies or guidelines established by the authority.
§16A-5-3. Confidentiality.
(a) The authority shall not release data that identifies
individuals by name except as specifically required by this code
or by court order. The authority may release data identifying
individuals by number or similar methods and other data not
generally available to the public, to researchers affiliated with
university research centers or departments who are conducting
research on health outcomes, practice guidelines and medical
practice style, and to researchers working under contract with
the authority. The authority may also release such data to any
other person who the authority determines is appropriate to
receive such information: Provided, That such persons must agree
to protect the confidentiality of such data according to this
article.
(b) Summary data derived from any of the data collected byor for the authority may be released in studies produced by the
authority or by any of its contractors, cosponsors and research
affiliates.
(c) The authority shall adopt rules to establish criteria
and procedures to govern access to and the use of data collected
by or for the authority. Records regarding individuals shall not
be subject to release under article one, chapter twenty-nine-b of
this code or under any other freedom of information provisions.
§16A-5-4. Policy and technical advisory committee.
The authority shall convene a policy and technical advisory
committee, consisting of health service researchers, health care
providers, health care consumers and representatives of health
insurance, of businesses that purchase health coverage and of
state government, which shall meet at least quarterly. Among
other things, the committee shall:
(a) Design policies and standards for health data;
(b) Evaluate methods of data collection and recommend to the
authority methods of data collection that minimize administrative
burdens, address data privacy concerns and meet the needs of
health service researchers;
(c) Review and make recommendations for research studies;
and
(d) Participate in data and research policy development as
part of authority and grant-funded initiatives.
§16A-5-5. Federal and other grants.
The authority may seek federal funding and funding fromprivate and other nonstate sources for appropriate initiatives
provided by this article.
§16A-5-6. Contracts and grants.
To carry out the duties assigned to it in this article the
authority may contract with or provide grants to private or
public-private sector entities or to other governmental entities.
Any contract or grant must require such other entity to maintain
the data on individuals which it receives according to this
article and any other statutory provisions applicable to such
data.
§16A-5-7. National health status indicators.
The authority shall implement or cause to be implemented a
periodic analysis and publication of data necessary to measure
progress toward objectives for at least ten of the priority areas
of the national health objectives and participate or cause the
bureau of public health of the department of health and human
resources to participate in the development and implementation of
a national set of health status indicators appropriate for
federal, state and local health agencies.
§16A-5-8. Study of administrative costs.
The authority shall study costs and requirements incurred by
health insurers, group purchasers, health care providers and, to
the extent possible, individuals that are related to the
collection and submission of information regarding health care to
the state and federal government, insurers and other third
parties. The authority shall implement by the first day of July,one thousand nine hundred ninety-four, any reforms that may
reduce these costs without compromising the purposes for which
the information is collected.
§16A-5-9. Health care medical records, confidentiality;
criminal penalties.
(a) Any health care provider who has custody of medical
records may reveal specific medical information contained in
those records to the individual on whom the record is kept, to
the individual's agent or representative, or as otherwise
specifically authorized in this code.
(b) Any health care provider who has custody of health care
records may not reveal specific health care information contained
in those records to any person unless authorized by the
individual on whom the record is kept.
(c) Subsection (b) of this section does not apply to a
health care provider who has custody of medical records if the
provider is:
(1) Performing health care services or allied support
services for or on behalf of a patient;
(2) Providing information requested by or to further the
purpose of a medical review committee, accreditation board or
commission or in response to a court order;
(3) Providing information required to conduct the proper
activities of the health care provider;
(4) Providing information to a governmental agency
performing its lawful duties as authorized by state or federallaw;
(5) Providing information at the request of a researcher for
medical and health care research under a protocol approved by an
institutional review board or as requested by the authority;
(6) Revealing the contents of health care records under
circumstances where the identity of the patient is not disclosed,
either directly or indirectly, to the recipient of the records;
(7) Providing information to an insurance company or to a
defendant or the defendant's legal counsel, in connection with a
potential or actual malpractice claim against a health care
provider;
(8) Providing information requested by another health care
provider of medical care for the sole purpose of treating the
individual on whom the record is kept;
(9) Providing information to a third party payor for billing
purposes only;
(10) Providing information to a nonprofit health service
plan or a blue cross or blue shield plan to coordinate benefit
payments under more than one sickness and accident, dental, or
hospital and medical insurance policy other than an individual
policy; or
(11) Providing information to organ and tissue procurement
personnel in accordance with any applicable laws or rules at the
request of a physician for a patient whose organs and tissue may
be donated for the purpose of evaluating the patient for possible
organ and tissue donation.
(d) Knowing breach of the confidentiality of any health care
records by a health care provider or anyone who obtains access to
personally identifiable health care information shall be a
misdemeanor, punishable by up to six months in the county jail or
a fine of two thousand dollars or both.
ARTICLE 6. HEALTH CARE PROFESSIONS; LICENSING BOARDS;
UTILIZATION REVIEW; QUALITY OF CARE; RURAL HEALTH
LOAN PROGRAM AND RURAL HEALTH SCHOLARS PROGRAM.
§16A-6-1. Executive secretary for health care boards; task
force on health care licensing boards.
(a) The executive secretary for health care boards provided
in section fifteen, article one, chapter thirty of this code
shall report to the authority, which shall fill such position not
later than the first day of September, one thousand nine hundred
ninety-three.
(b) The executive secretary shall be the chair of an ad hoc
task force on health care licensing boards, which is hereby
created. The task force shall be composed of representatives of
health care providers, existing licensing boards and consumers.
The task force shall make recommendations to the authority and
the Legislature no later than the first day of December, one
thousand nine hundred ninety-four. The task force shall prepare
the following implementation strategies:
(1) Define and coordinate language, purpose and public
service orientation of practice acts for the various state
boards;
(2) Require consistent record keeping and reporting for
practice boards;
(3) Subject to section seventeen, article one, chapter
thirty of this code, require boards, providers, law enforcement
agencies and courts to report actual and possible medically
related violations to practice boards within specified time
limits;
(4) Provide consumer access to specified information from
practice boards;
(5) Provide boards with broader disciplinary
responsibilities and options;
(6) Provide protection for board members, providers and
consumers who provide information in good faith;
(7) Provide for funding of practice boards;
(8) Create a complaint and feed-back system which covers all
practice boards;
(9) Evaluate classes of unlicensed providers for licensing
and accreditation;
(10) Establish licensing for ambulatory care, urgent care,
nursing care, and free-standing health care;
(11) Merge boards for similar health care providers;
(12) Require boards to develop and use assessment processes;
and
(13) Require continuing education for relicensing.
(c) Not later than the first day of January, one thousand
nine hundred ninety-four, the authority shall submit to thegovernor and the Legislature a plan for licensing providers of
home health services.
§16A-6-2. Utilization review; practice guidelines.
(a) The authority shall develop a single utilization review
program for all payors of health services within the state not
later than the first day of July, one thousand nine hundred
ninety-four. Such review shall be based on nationally recognized
review criteria prior to the development of practice guidelines
described below.
(b) The rules of the authority adopted to effect a single
utilization review program shall consider the following:
(1) The need for health care data obtained from standardized
utilization review to be analyzed by the community care networks.
(2) The need for the continuous quality improvement model to
serve as the basis for utilization review within community care
networks.
(3) The need for educational programs for health care
professionals and the public on health care management,
emphasizing effective interactions among the various interest
groups.
(4) The framework and strategies necessary for an orderly
transition into a statewide utilization review and quality
assurance program.
(c) The authority shall review national standards and,
working with representatives of appropriate health care
professional societies and organizations, shall establishpractice guidelines. In requiring such, the Legislature
recognizes that only health care professionals can develop
practice guidelines but that the process of sanctioning such
practice guidelines is a responsibility of state government. The
authority shall establish the framework for guideline selection
not later than the first day of January, one thousand nine
hundred ninety-four.
(d) After the authority has established practice guidelines,
such guidelines shall form the basis for development of uniform
quality assurance and utilization review. Not later than the
first day of September, one thousand nine hundred ninety-four,
the authority shall set forth by rule the process for such
development. The process for development shall include technical
expertise from health care professionals and at least one
demonstration project prior to implementation of uniform quality
assurance and utilization review based on practice guidelines.
§16A-6-3. Excess liability fund.
(a) Not later than the first day of July, one thousand nine
hundred ninety-four, the authority shall submit to the governor
and the Legislature a plan to create an excess liability fund for
health care provider malpractice.
(b) The authority shall consider the following in developing
an excess liability fund plan:
(1) Whether economic and noneconomic losses recoverable from
the fund should be limited;
(2) Who should bear the additional premium cost of the fund;
(3) Whether awards from the fund shall be in periodic
installments or a lump sum;
(4) Whether participation in the fund shall be mandatory;
(5) What threshold of primary insurance coverage each
participant in the fund shall have;
(6) Whether the threshold of primary insurance coverage
shall be categorized by risk category or whether the premium paid
for a uniform threshold shall be based upon the specialty risk
category;
(7) Whether a participant provider shall have the option to
self-insure for the threshold amount;
(8) Whether the premium paid for coverage by the fund shall
be reduced if the provider has primary insurance coverage above
the threshold amounts;
(9) Whether the fund shall operate on a claims-made or
occurrence basis;
(10) Whether assets of the fund shall be protected from any
other use;
(11) Whether lower premiums shall be used as incentives for
providers to participate in community care networks for a
practice in rural areas or in primary care;
(12) Who shall manage the fund; and
(13) Whether providers covered by state insurance policies
shall be allowed to continue with the basic coverage provided by
the state before the fund is activated on claims made against
them.
(c) Prior to submission of such plan, the authority shall
contract for and conduct an actuarial study to determine the
financial feasibility and cost effectiveness of such fund,
including the amount of premiums required. Such financial
information shall be included in the plan submitted to the
governor and the Legislature.
§16A-6-4. Task force on tort and liability system.
Not later than the first day of October, one thousand nine
hundred ninety-three, the authority shall appoint an ad hoc task
force to study and make recommendations on ways to improve the
tort and liability system as it relates to health care providers'
malpractice. Such task force shall consider mandatory scheduling
conferences within time limits; reduction in the statute of
limitations and other procedures; changes in prefiling discovery
to include only those parties directly involved; alternate
dispute resolution mechanisms for health care negligence suits;
incentives for early resolution through creation of an
accelerated compensation event system; the manner in which
practice guidelines may be used as standards of care in
malpractice cases; a sliding scale for attorney fees; revision of
the collateral source rules in malpractice suits; and such other
matters as the authority may request or the task force may deem
appropriate. The authority shall report to the governor and the
Legislature not later than the first day of December, one
thousand nine hundred ninety-four, with an implementation plan
for improving the tort and liability system. The authority mayconduct one or more demonstration projects in connection with
such task force and plan.
§16A-6-5. Community and rural health advisory council; strategy
for improving recruitment and retention of health
care students and professionals.
(a) There is hereby created the West Virginia community and
rural health advisory council. The council shall include
consumers and providers of health care in rural areas,
representatives of agencies serving rural areas, representatives
of health professions training and education and persons involved
in policy making affecting health care in rural areas. The
majority of the council shall at all times be representatives of
local community interests. The members of the community and
rural health advisory council serving as an advisory group to the
office of community and rural health services of the bureau of
public health on the effective date of this chapter shall
constitute the initial membership of the council: Provided, That
the authority may with the advice of the commissioner of the
bureau of public health and the vice chancellor of health
sciences for the university of West Virginia system, appoint any
additional members it deems necessary from time to time to
fulfill the membership requirements prescribed by this section.
(b) The council shall advise the authority in the areas of
program development, health care planning and legislation, shall
coordinate and evaluate state health professions recruitment
programs and shall advise the authority and the bureau of publichealth in the development and implementation of special projects
as the authority or the bureau may from time to time request. In
addition, the council shall advise the vice chancellor of health
sciences for the university of West Virginia system in developing
new recruitment programs and retention of health professionals;
developing the rural health scholars program described below,
including recommending awards to the university of West Virginia
board of trustees through the vice chancellor of health sciences;
and advising the vice chancellor and the bureau of public health
in the development and operation of a rural health technical
assistance center. While the council may from time to time make
recommendations relating to health care applicable statewide, its
focus shall be on health care delivery in rural and underserved
areas.
(c) With the advice of the council, the authority shall
develop and submit to the governor and the Legislature, not later
than the first day of December, one thousand nine hundred ninety-
three, a long-term strategy for improving the recruitment and
retention of health care professionals.
§16A-6-6. Rural health loan program.
(a) There is hereby established in the state treasury a
special revolving account under the university of West Virginia
board of trustees, to be known as the rural health loan fund.
(b) The fund shall consist of:
(1) All funds on deposit in the medical student loan fund
and the heath education student loan fund in the state treasuryon the thirtieth day of June, one thousand nine hundred ninety-
four, or which are due or become due for deposit in either fund
as obligations made under section one, article three, chapter
eighteen-c of this code;
(2) Thirty-three percent of the annual collections from the
medical education fee established by section four, article ten,
chapter eighteen-b of this code, or such higher percentage as may
be established by the board of trustees by legislative rule
subject to approval of the Legislature pursuant to the provisions
of article three-a, chapter twenty-nine-a of this code;
(3) Appropriations provided by the Legislature;
(4) Penalties assessed to individuals for failure to perform
under the terms of a loan contract as set forth under this
section or under section one, article three, chapter eighteen-c
of this code, and repayment of any loans which may be made from
funds in excess of those needed for loans under this section; and
(5) Other amounts which may be available from external
sources.
Balances remaining in the fund at the end of the fiscal year
shall not expire or revert. All costs associated with the
administration of this section shall be paid from the fund.
(c)(1) An individual is eligible for a rural health loan if
the individual:
(A) Is enrolled or accepted for enrollment at the university
of West Virginia school of medicine, Marshall University school
of medicine, West Virginia school of osteopathic medicine in aprogram leading to the degree of medical doctor or doctor of
osteopathy or in any of the state's other health profession
schools: Provided, That the individual has not yet received one
of these degrees and is not in default of any previous student
loan;
(B) Meets the established academic standards; and
(C) Signs a contract to practice his or her health
profession in an underserved area of the state or in a health
care specialty in which there is a shortage: Provided, however,
That for every year than an individual practices in an
underserved area or in a health care specialty in which there is
a shortage, twenty thousand dollars of the loan granted to the
individual will be forgiven. For purposes of this section,
underserved areas of the state and health care specialties in
which there are shortages shall be those designated by the
authority with the advice of the council and the bureau of public
health.
(2) Loans shall be awarded by the director of financial aid
of the applicable school of medicine or other health profession
school, with the approval of the senior administrator, on a
priority basis from the pool of all applications, with the first
priority being a commitment to serve in an underserved area of
the state or in a health care specialty in which there is a
shortage of practitioners in the state as determined by the
authority, with the advice of the council and the bureau of
public health. A loan from the fund shall be limited to the costof education as determined by the applicable health profession
school or twenty thousand dollars, whichever is less.
(3) At the end of each fiscal year after completion of his
or her education and during his or her period of service, any
individual who has received a rural health loan shall submit to
the board of trustees a notarized, sworn statement of service on
a form provided for that purpose. Upon receipt of such statement
in proper form and verification that the individual has complied
with the terms under which the loan was granted, the board of
trustees shall cancel up to twenty thousand dollars of the
outstanding loan for every full twelve consecutive calendar
months of such service.
(4) If an individual fails to submit the required statement
of service, or submits a fraudulent statement, in addition to
other penalties, the individual shall be in breach of contract
and shall pay a penalty to the fund equal to three times the
amount of the then outstanding balance of such individual's loan.
(5) A loan recipient who fails to meet the academic
standards necessary for completion of the course of study under
which the loan was granted or who fails to complete the course of
study under which the original loan was granted shall be liable
for repayment of the loan amount under the terms for the
repayment of loans established by the board of trustees at the
time the loan contract was executed.
(d) The fund established by this section shall be used for
loans beginning in the academic year beginning one thousand ninehundred ninety-four. The student loan programs established under
section one, article three, chapter eighteen-c of this code shall
continue to operate through the end of the academic year
beginning one thousand nine hundred ninety-three. Students
receiving loans under such existing programs who qualify for
rural health loans as prescribed by this section shall be given
priority for loans from the rural health fund. If a student with
a loan from an existing program applies for and receives a loan
from the rural health fund, the loans shall be consolidated and
the aggregate amount of the loan shall be subject to the
repayment provisions, including the forgiveness and penalty
provisions, set forth in this section.
(e) When a borrower under the rural health loan fund has
completed his or her education and has served his or her
commitment, such that no rural health loan is then outstanding,
he or she may apply in each ensuing year to the rural health loan
program for an additional loan of not to exceed twenty thousand
dollars to repay any other outstanding educational loans.
(f) The secretary of the state department of education and
the arts shall promulgate the procedural rules necessary for the
operation of this section.
(g) Notwithstanding anything in this article to the
contrary, the funds derived from medical student fees shall be
used only for loans to qualified medical students at the school
from which the fees come.
(h) The health sciences scholarship program shall beconsolidated with the rural health loan fund.
§16A-6-7. Rural health scholars program.
The rural health scholars program is hereby created under
the vice chancellor of health affairs of the university of West
Virginia system. The program shall recognize outstanding
achievements by students interested in practicing in rural areas
or primary care specialties, shall reimburse students for up to
two thousand dollars per year for expenses incurred by the
student in attending research conferences and seminars regarding
rural health care and primary care, and shall support such other
activities as the community and rural health advisory council
created by section five of this article shall advise the
authority, the commissioner of the state bureau of public health
and the vice chancellor as necessary or appropriate to promote
the recruitment and retention of students and health care
providers in rural areas or primary care specialties.
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.
ARTICLE 1. GENERAL PROVISIONS.
§30-1-15. Office of executive secretary of the health
profession licensing boards; appointment of
executive secretary; duties.
The office of the executive secretary of the health
profession licensing boards created by chapter one hundred two,
acts of the Legislature, regular session, one thousand nine
hundred seventy-seven is hereby continued under the health care
authority established by section one, article two, chaptersixteen-a of this code. The health profession licensing boards
shall include those boards provided for in articles two-a four,
five, six, seven, seven-a, eight, ten, fourteen, sixteen,
seventeen, twenty, twenty-one, twenty-five and twenty-six of
chapter thirty of this code. Notwithstanding any other provision
of this code to the contrary, the office space, personnel,
records and like business affairs of the health profession
licensing boards shall be within the office of the executive
secretary of the health profession licensing boards. The
secretaries of each of the health profession licensing boards
shall coordinate purchasing, record keeping, personnel, use of
reporters and like matters under the executive secretary in order
to achieve the most efficient and economical fulfillment of their
functions. The executive secretary shall be appointed by the
director of health care authority and shall report to the
director of the authority. The executive secretary shall keep
the fiscal records and accounts of each of the boards. The
executive secretary shall keep the director informed as to the
needs of each of the boards. The executive secretary shall
coordinate the activities and efforts of the boards with the
activities of the health resources advisory council plan policy,
and programs of the health care authority and shall see that the
needs for health manpower care professionals perceived by the
boards are communicated to the health resources advisory council
health care authority. The executive secretary shall keep any
statistics and information on health professions, collected by orfor the boards and shall make such statistics and information
available to the health resources advisory council health care
authority to aid it in carrying out its responsibilities.
§30-1-17. Liability limitations of professionals reporting
provider negligence, impairment or incompetence to
peer review committees and professional standards
review committees; reporting results of litigation
to committees; procedure for imposing penalties.
(a) Any member of a professional group or organization
covered by this chapter, including, but not limited to, doctors
of medicine, doctors of chiropractic, doctors of veterinary
medicine, osteopathic physicians and surgeons, doctors of
dentistry, pharmacists, attorneys-at-law, real estate brokers,
architects, professional engineers, certified public accountants,
public accountants, registered nurses, or licensed practical
nurses, who, pursuant to any rule promulgated by the applicable
governing board for that profession, or pursuant to the rules,
regulations or by-laws of any peer review organization, reports
or otherwise provides evidence of the negligence, impairment or
incompetence of another member of his or her profession to the
governing board for such profession or to any peer review
organization shall not be liable to any person for making such a
report if such report is made without actual malice and in the
reasonable belief that such report is warranted by the facts
known to him or her at the time.
(b) In the event a claim or cause of action is assertedagainst a member of any profession included in this chapter,
whether an individual or an entity, as a result of the filing of
a report by such member pursuant to the provisions of this
chapter, or the rules and regulations of the applicable governing
board for that profession, or pursuant to rules, regulations or
by-laws of any peer review organization, and such claim or cause
of action is subsequently dismissed, settled or adjudicated in
favor of the person or entity making the required report, the
person or persons who initiated the claim or action shall be
liable for all attorneys fees, costs and expenses incurred by the
reporting professional.
(c) Within thirty days of the dismissal, settlement,
adjudication or other termination of any claim or cause of action
asserted against any professional reporting under the provisions
of this chapter, the person or persons filing such claim or cause
of action shall submit to the applicable governing board the
following information:
(1) The names of the parties involved;
(2) The name of the court in which the action was filed, if
applicable;
(3) The bases and nature of the claim or cause of action;
and
(4) The results of such claim or cause of action, including
dismissal, settlement, court or jury verdict, or other means of
termination.
(d) The health care authority established by section one,article two, chapter sixteen-a of this code shall promulgate
legislative rules pursuant to the provisions of chapter twenty-
nine-a of this code, establishing procedures for imposing
sanctions and penalties against any member of such profession who
fails to submit to the board the information required by this
section.
(e) The provisions of this section shall not preclude the
application of any immunity protections which may be set forth
under any article in this chapter.
§30-1-18. Provider self-referral.
(a) The Legislature hereby finds that the referral of a
patient by a health care provider to a provider of health care
services in which the referring health care provider has an
investment interest represents a potential conflict of interest.
The Legislature further finds that these referral practices may
limit or eliminate competitive alternatives in the health care
services market, may result in over-utilization of health care
services, may increase costs to the health care system, and may
adversely affect the quality of heath care. Notwithstanding the
findings hereinabove set forth, the Legislature further finds
that it may be appropriate for health care providers to own
entities providing health care services, and to refer patients to
such entities, as long as certain safeguards are present in the
arrangement.
(b) Not later than the first day of September, one thousand
nine hundred ninety-three, the health care authority establishedby section one, article two, chapter sixteen-a of this code,
shall by rule establish directives for health care providers
regarding prohibited patient referrals between health care
providers and entities providing health care services to protect
the citizens of West Virginia from unnecessary and costly health
care expenditures: Provided, That such rules shall be no less
restrictive than any applicable federal laws, rules or
regulations.
NOTE: The purpose of the West Virginia Health Care Act of
1993 is to take the first steps toward a comprehensive reform of
the health care system in West Virginia. The Act establishes
the West Virginia Health Care Authority to carry out the Act;
requires the Authority to identify by rule state agencies with
policies, programs or responsibilities relating to health or
health care and requires such agencies to submit budgets and
plans to the Authority; empowers the Authority to transfer
health care money among state agencies; requires an annual
report and reform plan to be approved by the Governor and
submitted to the Legislature; requires the Authority to update
the state health plan, and designates the Authority as the
single state agency. The Authority is responsible for the
establishment of a community-based system of care and for
certifying community care networks, and for issuing preliminary
certificates of public advantage for cooperative agreements
leading thereto. The Authority is to provide active supervision
that, with specific findings in the Act and by the Authority are
intended to constitute state action for purpose of federal
antitrust laws.
The Act further requires the Authority to define a uniform
health benefits package, to conduct state health care purchasing
and payment functions, to undertake actuarial studies and
analysis, to prepare for global budgeting, to limit aggregate
annual capital expenditures, to set rates binding on both
providers and payors, to establish a plan for prepaid,
prospective rates and to make recommendations regarding insurance
reform. The Act establishes an office of consumer advocacy
within the Authority, and designates the Authority the single
state agency for Medicaid.
The Act requires the Authority to develop an information
system from which evaluations can be made and on which decisions
can be based and provides for confidentiality of data. The Act
sets forth standards for release of medical records.
The Act places the executive secretary of health care
boards under the Authority. The Act requires development of
uniform quality assurance and utilization review based on
practice guidelines and submission of a plan to establish an
excess liability fund; establishes a task force on the tort and
liability system, a community and rural health advisory council,
a rural health loan program and a rural health scholars program;
provides limitations on liability for persons reporting provider
negligence; and requires standards regarding provider self-
referral.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
Section four-b, article two-d, chapter sixteen; chapter
sixteen-a; and sections seventeen and eighteen, article one,
chapter thirty are new; therefore, underscoring and strike-
throughs have been omitted.