COM SUB FOR COM SUB FOR SB 54
COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
SENATE BILL NO. 54
(By Senator Burdette, Mr. President, and Boley,
By Request of the Executive)
[Originating in the Judiciary Committee;
Reported March 3, 1994.]
A BILL to repeal section ten-b, article one, chapter sixteen of
the code of West Virginia, one thousand nine hundred thirty-
one, as amended; to repeal article one-a of said chapter; to
repeal section fifteen, article one, chapter thirty of said
code; to amend and reenact section twelve, article
twenty-one, chapter eleven of said code; to amend and
reenact section six, article twenty-four of said chapter; to
amend and reenact sections three and twenty, article
twenty-nine-b, chapter sixteen of said code; to amend said
code by adding thereto a new chapter, designated chapter
sixteen-a; to amend and reenact section three, article
three, chapter eighteen of said code; to further amend said
article by adding thereto a new section, designated section
one-a; to amend and reenact section one, article three,
chapter eighteen-c of said code; to further amend said
article by adding thereto two new sections, designated
sections one-a and three; to amend and reenact section one,
article two, chapter twenty-seven of said code; to amend
chapter twenty-nine-a of said code by adding a new article,
designated article three-c; to amend and reenact sections
one, three, four-a, five, six, seven, eight, ten, eleven and
twelve, article one, chapter thirty of said code; to further
amend said article by adding three new sections, designated
sections one-a, four-b and seventeen; to amend article
fifteen, chapter thirty-three of said code by adding thereto
a new section, designated section seventeen; and to amend
article sixteen of said chapter by adding thereto a new
section, designated section twelve, all relating to the
state health care system and the restructuring thereof,
including, but not limited to, the creation of a state
health care policy commission; legislative intent;
definitions; creating West Virginia health care policy
commission; providing for an executive director of the
commission; setting forth the duties of the executive
director; setting forth powers of commission; providing the
commission with rule-making powers; specifying various
actions relating to health and health care for which health
care commission and executive director shall be responsible;
requiring health care commission to update state health
plan; continuing the health professions' data collection
system under the executive director; requiring health care
policy commission to develop system for certifying healthcare networks and exempting from coverage of federal and
state antitrust laws; requiring health care policy
commission to develop plan for long-term care in state and
to develop health-promotion programs; requiring development
of tort reform proposals; prohibiting the duplication of
services between the commission and state agencies;
commission to terminate on date certain without further
legislative action; restructuring the public health system;
purpose; definitions; creating public health system
advisory council; focusing public health on core functions
and population-based services; requiring the creation of
regional public health networks; requiring health care
policy commission to develop an information system to
provide basis for reform; requiring reports of state
agencies; providing for the format of reports; requiring
specific types of information from certain agencies;
providing confidentiality provisions relating to the release
of information and specifying classes of individuals that
may receive the information; requiring certain studies;
providing criminal penalties for breach of confidentiality;
relating to general supervision of schools; establishing
health education loan program and rural health education
loan program; providing for loan forgiveness; establishing
the rural health scholars program; declaration of purpose of
licensure and registration; requiring officers of state
boards of examination or registration to register annually
with specific state entities; requiring the inclusion of a
lay member to all boards; limiting number of terms of boardmembers; providing for subpoena power; requiring timely
investigation and resolution of complaints; requiring
reporting of violations of practice acts; authorizing boards
to establish by rule, fees for licensure and registration in
amounts sufficient to perform their duties; prohibiting the
assignment of license or certificate; permitting the
suspension or revocation of license for individuals
convicted of crimes; authorizing the promulgation of rules
related to, but not limited to, conduct, negligence,
standards of professional conduct; protecting from liability
any member of certain professional groups who report or
otherwise provide evidence to the governing board of such
reporting person's profession, of the negligence, impairment
or incompetence of another member of such profession, except
in cases involving actual malice; establishing health care
investment accounts; authorizing adjustment to state income
tax for individuals and businesses investing in health care
investment accounts; defining proper trustee; authorizing
insurers to combine benefit plans with health care
investment accounts; authorizing the commissioner to
promulgate rules and regulations; and authorizing the tax
commissioner to promulgate rules relating to penalties for
early or unauthorized withdrawals.
Be it enacted by the Legislature of West Virginia:
That section ten-b, article one, chapter sixteen of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; that article one-a of said chapter be
repealed; that section twelve, article twenty-one, chapter elevenof said code be amended and reenacted; that section six, article
twenty-four of said chapter be amended and reenacted; that
sections three and twenty, article twenty-nine-b, chapter sixteen
of said code be amended and reenacted; that said code be amended
by adding thereto a new chapter, designated chapter sixteen-a;
that section three, article three, chapter eighteen be amended
and reenacted; that said article be further amended by adding
thereto a new section designated one-a; that section one, article
three, chapter eighteen-c of said code be amended and reenacted;
that said article be further amended by adding thereto two new
sections, designated sections one-a and three; that section one,
article two, chapter twenty-seven of said code be amdended and
reenacted; that chapter twenty-nine-a be amended by adding
thereto a new article, designated article three-c; that sections
one, three, four-a, five, six, seven, eight, ten, eleven and
twelve, article one, chapter thirty of said code be amended and
reenacted; that said article be further amended by adding thereto
three new sections, designated sections one-a, four-b and
seventeen; that article fifteen, chapter thirty-three of said
code be amended by adding thereto a new section, designated
section seventeen; and that article sixteen of said chapter be
amended by adding thereto a new section, designated section
twelve, all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 21. PERSONAL INCOME TAX.
§11-21-12. West Virginia adjusted gross income of resident
individual.
(a) General. -- The West Virginia adjusted gross income ofa resident individual means his or her federal adjusted gross
income as defined in the laws of the United States for the
taxable year with the modifications specified in this section.
(b) Modifications increasing federal adjusted gross income.
-- There shall be added to federal adjusted gross income unless
already included therein the following items:
(1) Interest income on obligations of any state other than
this state or of a political subdivision of any such other state
unless created by compact or agreement to which this state is a
party;
(2) Interest or dividend income on obligations or securities
of any authority, commission or instrumentality of the United
States, which the laws of the United States exempt from federal
income tax but not from state income taxes;
(3) Income taxes imposed by this state or any other taxing
jurisdiction, to the extent deductible in determining federal
adjusted gross income and not credited against federal income
tax: Provided, That this modification shall not be made for
taxable years beginning after the thirty-first day of December,
one thousand nine hundred eighty-six;
(4) Interest on indebtedness incurred or continued to
purchase or carry obligations or securities the income from which
is exempt from tax under this article, to the extent deductible
in determining federal adjusted gross income;
(5) Interest on a depository institution tax-exempt savings
certificate which is allowed as an exclusion from federal gross
income under Section 128 of the Internal Revenue Code, for the
federal taxable year;
(6) The amount allowed as a deduction from federal gross
income under Section 221 of the Internal Revenue Code by married
couples who file a joint federal return for the federal taxable
year: Provided, That this modification shall not be made for
taxable years beginning after the thirty-first day of December,
one thousand nine hundred eighty-six;
(7) The deferral value of certain income that is not
recognized for federal tax purposes, which value shall be an
amount equal to a percentage of the amount allowed as a deduction
in determining federal adjusted gross income pursuant to the
accelerated cost recovery system under Section 168 of the
Internal Revenue Code for the federal taxable year, with the
percentage of the federal deduction to be added as follows with
respect to the following recovery property: Three-year property
-- no modification; five-year property -- ten percent; ten-year
property -- fifteen percent; fifteen-year public utility property
-- twenty-five percent; and fifteen-year real property -- thirty-
five percent: Provided, That this modification shall not apply to
any person whose federal deduction is determined by the use of
the straight line method: Provided, however, That this
modification shall not be made for taxable years beginning after
the thirty-first day of December, one thousand nine hundred
eighty-six; and
(8) The amount of a lump sum distribution for which the
taxpayer has elected under Section 402(e) of the Internal Revenue
Code of 1986, as amended, to be separately taxed for federal
income tax purposes.
(c) Modifications reducing federal adjusted gross income. --There shall be subtracted from federal adjusted gross income to
the extent included therein:
(1) Interest income on obligations of the United States and
its possessions to the extent includible in gross income for
federal income tax purposes;
(2) Interest or dividend income on obligations or securities
of any authority, commission or instrumentality of the United
States or of the state of West Virginia to the extent includible
in gross income for federal income tax purposes but exempt from
state income taxes under the laws of the United States or of the
state of West Virginia, including federal interest or dividends
paid to shareholders of a regulated investment company, under
Section 852 of the Internal Revenue Code for taxable years ending
after the thirtieth day of June, one thousand nine hundred
eighty-seven;
(3) Any gain from the sale or other disposition of property
having a higher fair market value on the first day of January,
one thousand nine hundred sixty-one, than the adjusted basis at
said date for federal income tax purposes: Provided, That the
amount of this adjustment is limited to that portion of any such
gain which does not exceed the difference between such fair
market value and such adjusted basis: Provided, however, That if
such gain is considered a long-term capital gain for federal
income tax purposes, the modification shall be limited to forty
percent of such portion of the gain: Provided further, That this
modification shall not be made for taxable years beginning after
the thirty-first day of December, one thousand nine hundred
eighty-six;
(4) The amount of any refund or credit for overpayment of
income taxes imposed by this state, or any other taxing
jurisdiction, to the extent properly included in gross income for
federal income tax purposes;
(5) Annuities, retirement allowances, returns of
contributions and any other benefit received under the West
Virginia public employees retirement system, the West Virginia
state teachers retirement system and all forms of military
retirement, including regular armed forces, reserves and national
guard, including any survivorship annuities derived therefrom, to
the extent includible in gross income for federal income tax
purposes: Provided, That notwithstanding any provisions in this
code to the contrary, this modification shall be limited to the
first two thousand dollars of benefits received under the West
Virginia public employees retirement system, the West Virginia
state teachers retirement system and all forms of military
retirement including regular armed forces, reserves and national
guard, including any survivorship annuities derived therefrom, to
the extent includible in gross income for federal income tax
purposes for taxable years beginning after the thirty-first day
of December, one thousand nine hundred eighty-six; and the first
two thousand dollars of benefits received under any federal
retirement system to which Title 4 U.S.C. §111 applies: Provided,
however, That the total modification under this paragraph shall
not exceed two thousand dollars per person receiving such
retirement benefits and this limitation shall apply to all
returns or amended returns filed after the last day of December,
one thousand nine hundred eighty-eight;
(6) Retirement income received in the form of pensions and
annuities after the thirty-first day of December, one thousand
nine hundred seventy-nine, under any West Virginia police, West
Virginia firemen's retirement system or the West Virginia
department of public safety death, disability and retirement
fund, including any survivorship annuities derived therefrom, to
the extent includible in gross income for federal income tax
purposes;
(7) Federal adjusted gross income in the amount of eight
thousand dollars received from any source after the thirty-first
day of December, one thousand nine hundred eighty-six, by any
person who has attained the age of sixty-five on or before the
last day of the taxable year, or by any person certified by
proper authority as permanently and totally disabled, regardless
of age, on or before the last day of the taxable year, to the
extent includible in federal adjusted gross income for federal
tax purposes: Provided, That if a person has a medical
certification from a prior year and he is still permanently and
totally disabled, a copy of the original certificate is
acceptable as proof of disability. A copy of the form filed for
the federal disability income tax exclusion is acceptable:
Provided, however, That:
(i) Where the total modification under subdivisions (1),
(2), (5) and (6) of this subsection is eight thousand dollars per
person or more, no deduction shall be allowed under this
subdivision; and
(ii) Where the total modification under subdivisions (1),
(2), (5) and (6) of this subsection is less than eight thousanddollars per person, the total modification allowed under this
subdivision for all gross income received by such person shall be
limited to the difference between eight thousand dollars and the
sum of modifications under such subdivisions;
(8) Federal adjusted gross income in the amount of eight
thousand dollars received from any source after the thirty-first
day of December, one thousand nine hundred eighty-six, by the
surviving spouse of any person who had attained the age of sixty-
five or who had been certified as permanently and totally
disabled, to the extent includible in federal adjusted gross
income for federal tax purposes: Provided, That:
(i) Where the total modification under subdivisions (1),
(2), (5), (6) and (7) of this subsection is eight thousand
dollars or more, no deduction shall be allowed under this
subdivision; and
(ii) Where the total modification under subdivisions (1),
(2), (5), (6) and (7) of this subsection is less than eight
thousand dollars per person, the total modification allowed under
this subdivision for all gross income received by such person
shall be limited to the difference between eight thousand dollars
and the sum of such subdivisions;
(9) Any pay or allowances received, after the thirty-first
day of December, one thousand nine hundred seventy-nine, by West
Virginia residents who have not attained the age of sixty-five,
as compensation for active service in the armed forces of the
United States: Provided, That such deduction shall be limited to
an amount not to exceed four thousand dollars: Provided,
however, That this modification shall not be made for taxableyears beginning after the thirty-first day of December, one
thousand nine hundred eighty-six;
(10) Gross income to the extent included in federal adjusted
gross income under Section 86 of the Internal Revenue Code for
federal income tax purposes: Provided, That this modification
shall not be made for taxable years beginning after the thirty-
first day of December, one thousand nine hundred eighty-six;
(11) The amount of any lottery prize awarded by the West
Virginia state lottery commission, to the extent properly
included in gross income for federal income tax purposes:
Provided, That for taxable years beginning after the thirty-first
day of December, one thousand nine hundred ninety-two, this
modification shall not be made for lottery prizes awarded by the
West Virginia state lottery commission;
(12) Individual, employee and employer contributions and
interest accruing to health care investment accounts established
pursuant to section seventeen, article fifteen and/or section
twelve, article sixteen, chapter thirty-three of this code to the
extent included in federal adjusted gross income; and
(13) Any other income which this state is prohibited from
taxing under the laws of the United States.
(d) Modification for West Virginia fiduciary adjustment. --
There shall be added to or subtracted from federal adjusted gross
income, as the case may be, the taxpayer's share, as beneficiary
of an estate or trust, of the West Virginia fiduciary adjustment
determined under section nineteen of this article.
(e) Partners and S corporation shareholders. -- The amounts
of modifications required to be made under this section by apartner or an S corporation shareholder, which relate to items of
income, gain, loss or deduction of a partnership or an S
corporation, shall be determined under section seventeen of this
article.
(f) Husband and wife. -- If husband and wife determine their
federal income tax on a joint return but determine their West
Virginia income taxes separately, they shall determine their West
Virginia adjusted gross incomes separately as if their federal
adjusted gross incomes had been determined separately.
ARTICLE 24. CORPORATION NET INCOME TAX.
§11-24-6. Adjustments in determining West Virginia taxable
income.
(a) General. -- In determining West Virginia taxable income
of a corporation, its taxable income as defined for federal
income tax purposes shall be adjusted and determined before the
apportionment provided by section seven of this article, by the
items specified in this section.
(b) Adjustments increasing federal taxable income. -- There
shall be added to federal taxable income, unless already included
in the computation of federal taxable income, the following
items:
(1) Interest or dividends on obligations or securities of
any state or of a political subdivision or authority thereof;
(2) Interest or dividends (less related expenses to the
extent not deducted in determining federal taxable income) on
obligations or securities of any authority, commission or
instrumentality of the United States which the laws of the United
States exempt from federal income tax but not from state incometaxes;
(3) Income taxes and other taxes, including franchise and
excise taxes, which are based on, measured by, or computed with
reference to net income, imposed by this state or any other
taxing jurisdiction, to the extent deducted in determining
federal taxable income;
(4) The amount of unrelated business taxable income as
defined by Section 512 of the Internal Revenue Code of 1986, as
amended, of a corporation which by reason of its purposes is
generally exempt from federal income taxes; and
(5) The amount of any net operating loss deduction taken for
federal income tax purposes under Section 172 of the Internal
Revenue Code of 1986, as amended.
(c) Adjustments decreasing federal taxable income. -- There
shall be subtracted from federal taxable income to the extent
included therein:
(1) Any gain from the sale or other disposition of property
having a higher fair market value on the first day of July, one
thousand nine hundred sixty-seven, than the adjusted basis at
said date for federal income tax purposes: Provided, That the
amount of this adjustment is limited to that portion of any such
gain which does not exceed the difference between such fair
market value and such adjusted basis;
(2) The amount of any refund or credit for overpayment of
income taxes and other taxes, including franchise and excise
taxes, which are based on, measured by, or computed with
reference to net income, imposed by this state or any other
taxing jurisdiction, to the extent properly included in grossincome for federal income tax purposes;
(3) The amount added to federal taxable income due to the
elimination of the reserve method for computation of the bad debt
deduction;
(4) The full amount of interest expense actually disallowed
in determining federal taxable income which was incurred or
continued to purchase or carry obligations or securities of any
state or of any political subdivision thereof;
(5) The amount required to be added to federal taxable
income as a dividend received from a foreign (non-United States)
corporation under Section 78 of the Internal Revenue Code of
1986, as amended, by a corporation electing to take the foreign
tax credit for federal income tax purposes;
(6) The amount of salary expenses disallowed as a deduction
for federal income tax purposes due to claiming the federal jobs
credit under Section 51 of the Internal Revenue Code of 1986, as
amended;
(7) The amount included in federal adjusted gross income by
the operation of Section 951 of the Internal Revenue Code of
1986, as amended;
(8) Employer contributions to health care investment
accounts established pursuant to section twelve, article sixteen,
chapter thirty-three of this code to the extent included in
federal taxable income; and
(9) Any amount included in federal adjusted gross income
which is foreign source income. Foreign source income includes:
(A) Interest and dividends, other than those derived from
sources within the United States;
(B) Rents, royalties, license and technical fees from
property located or services performed without the United States
or from any interest in such property, including rents, royalties
or fees for the use of or the privilege of using without the
United States any patents, copyrights, secret process and
formulas, good will, trademarks, trade brands, franchises and
other like properties; and
(C) Gains, profits or other income from the sale of
intangible or real property located without the United States.
In determining the source of "foreign source income", the
provisions of Sections 861, 862 and 863 of the Internal Revenue
Code of 1986, as amended, shall be applied.
(d) Net operating loss deduction. -- Except as otherwise
provided in this subsection, there shall be allowed as a
deduction for the taxable year an amount equal to the aggregate
of: (1) The West Virginia net operating loss carryovers to such
year; plus (2) the net operating loss carrybacks to such year:
Provided, That no more than three hundred thousand dollars of net
operating loss from any taxable year beginning after the thirty-
first day of December, one thousand nine hundred ninety-two, may
be carried back to any previous taxable year. For purposes of
this subsection, the term "West Virginia net operating loss
deduction" means the deduction allowed by this subsection,
determined in accordance with Section 172 of the Internal Revenue
Code of 1986, as amended.
(1) Special rules. --
(A) When the corporation further adjusts its adjusted
federal taxable income under section seven of this article, theWest Virginia net operating loss deduction allowed by this
subsection shall be deducted after the section seven adjustments
are made;
(B) The tax commissioner shall prescribe such transition
regulations as he deems necessary for fair and equitable
administration of this subsection as amended by this act.
(2) Effective date. -- The provisions of this subsection, as
amended by chapter one hundred nineteen, acts of the Legislature,
one thousand nine hundred eighty-eight, shall apply to all
taxable years ending after the thirtieth day of June, one
thousand nine hundred eighty-eight; and to all loss carryovers
from taxable years ending on or before said thirtieth day of
June.
(e) Special adjustments for expenditures for water and air
pollution control facilities. --
(1) If the taxpayer so elects under subdivision (2) of this
subsection, there shall be:
(A) Subtracted from federal taxable income the total of the
amounts paid or incurred during the taxable year for the
acquisition, construction or development within this state of
water pollution control facilities or air pollution control
facilities as defined in Section 169 of the Internal Revenue
Code; and
(B) Added to federal taxable income the total of the amounts
of any allowances for depreciation and amortization of such water
pollution control facilities or air pollution control facilities,
as so defined, to the extent deductible in determining federal
taxable income.
(2) The election referred to in subdivision (1) of this
subsection shall be made in the return filed within the time
prescribed by law (including extensions thereof) for the taxable
year in which such amounts were paid or incurred. Such election
shall be made in such manner, and the scope of application of
such election shall be defined, as the tax commissioner may by
regulations prescribe, and shall be irrevocable when made as to
all amounts paid or incurred for any particular water pollution
control facility or air pollution control facility.
(3) Notwithstanding any other provisions of this subsection
or of section seven of this article to the contrary, if the
taxpayer's federal taxable income is subject to allocation and
apportionment under said section, the adjustments prescribed in
paragraphs (A) and (B), subdivision (1) of this subsection shall
(instead of being made to the taxpayer's federal taxable income
before allocation and apportionment thereof as provided in
section seven of this article) be made to the portion of the
taxpayer's net income, computed without regard to such
adjustments, allocated and apportioned to this state in
accordance with section seven of this article.
(f) Allowance for certain government obligations and
obligations secured by residential property. -- The West Virginia
taxable income of a taxpayer subject to this article as adjusted
in accordance with subsections (b), (c), (d) and (e) of this
section shall be further adjusted by multiplying such taxable
income after such adjustment by said subsections by a fraction
equal to one minus a fraction:
(1) The numerator of which is the sum of the average of themonthly beginning and ending account balances during the taxable
year (account balances to be determined at cost in the same
manner that such obligations, investments and loans are reported
on Schedule L of the Federal Form 1120) of the following:
(A) Obligations or securities of the United States, or of
any agency, authority, commission or instrumentality of the
United States and any other corporation or entity created under
the subdivision or authority thereof;
(B) Obligations or securities of this state and any
political subdivision or authority thereof;
(C) Investments or loans primarily secured by mortgages, or
deeds of trust, on residential property located in this state and
occupied by nontransients; and
(D) Loans primarily secured by a lien or security agreement
on residential property in the form of a mobile home, modular
home or double-wide, located in this state and occupied by
nontransients.
(2) The denominator of which is the average of the monthly
beginning and ending account balances of the total assets of the
taxpayer which are shown on Schedule L of Federal Form 1120,
which are filed by the taxpayer with the Internal Revenue
Service.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 29B. HEALTH CARE COST REVIEW AUTHORITY.
§16-29B-3. Definitions.
As used in this article, unless a different meaning clearly
appears from the context:
(a) "Charges" means the economic value established foraccounting purposes of the goods and services a hospital provides
for all classes of purchasers;
(b) "Class of purchaser" means a group of potential hospital
patients with common characteristics affecting the way in which
their hospital care is financed. Examples of classes of
purchasers are medicare beneficiaries, welfare recipients,
subscribers of corporations established and operated pursuant to
article twenty-four, chapter thirty-three of this code, members
of health maintenance organizations and other groups as defined
by the board;
(c) "Board" means the three member board of directors of the
West Virginia health care cost review authority, an autonomous
division within the state department of health;
(d) "Health care provider" means a person, partnership,
corporation, facility or institution licensed, certified or
authorized by law to provide professional health care service in
this state to an individual during this individual's medical
care, treatment or confinement;
(e) "Hospital" means a facility subject to licensure as such
under the provisions of article five-b of this chapter,
pyschiatric facilities, and any acute care facility operated by
the state government which is primarily engaged in providing to
inpatients, by or under the supervision of physicians, diagnostic
and therapeutic services for medical diagnosis, treatment and
care of injured, disabled or sick persons, and does not include
state mental health facilities or state long-term care
facilities;
(f) "Person" means an individual, trust, estate,partnership, committee, corporation, association or other
organization such as a joint stock company, estate or political
subdivision or instrumentality thereof;
(g) "Purchaser" means a consumer of patient care services,
a natural person who is directly or indirectly responsible for
payment for such patient care services rendered by a hospital,
but does not include third-party payors;
(h) "Rates" means all value given or money payable to
hospitals for health care services, including fees, charges and
cost reimbursements;
(i) "Records" means accounts, books and other data related
to health care costs at health care facilities subject to the
provisions of this article which do not include privileged
medical information, individual personal data, confidential
information, the disclosure of which is prohibited by other
provisions of this code and the laws enacted by the federal
government, and information, the disclosure of which would be an
invasion of privacy;
(j) "Third-party payor" means any natural person, person,
corporation or government entity responsible for payment for
patient care services rendered by hospitals; and
(k) "Related organization" means an organization, whether
publicly owned, nonprofit, tax-exempt or for profit, related to
a hospital through common membership, governing bodies, trustees,
officers, stock ownership, family members, partners or limited
partners including, but not limited to, subsidiaries,
foundations, related corporations and joint ventures. For the
purposes of this subsection family members shall mean brothersand sisters, whether by the whole or half blood, spouse,
ancestors and lineal descendents.
§16-29B-20. Rate determination.
(a) Upon commencement of review activities, no rates may be
approved by the board nor payment be made for services provided
by hospitals under the jurisdiction of the board by any purchaser
or third-party payor to or on behalf of any purchaser or class of
purchasers unless:
(1) The costs of the hospital's services are reasonably
related to the services provided and the rates are reasonably
related to the costs;
(2) The rates are equitably established among all purchasers
or classes of purchasers within a hospital without discrimination
unless federal or state statutes or regulations conflict with
this requirement. On and after the effective date of this
section, a summary of every proposed contract for the payment of
patient care services between a purchaser or third-party payor
and a hospital shall be filed by the hospital with its rate
application for review by the board. No contract for the payment
of patient care services between a purchaser or third-party payor
and a hospital which establishes discounts to the purchaser or
third-party payor shall take effect until it is approved by the
board. The board shall approve or deny the proposed contract
within the overall rate review period established in section
twenty-one of this article. No discount shall be approved by the
board which constitutes an amount below the actual cost to the
hospital.
The hospital shall demonstrate to the board that the cost ofany discount contained in the contract will not be shifted to any
other purchaser or third-party payor. The hospital shall further
demonstrate that the discount will not result in a decrease in
its proportion of medicare, medicaid or uncompensated care
patients. In addition, the hospital shall demonstrate to the
board that the discount is based upon criteria which constitutes
a quantifiable economic benefit to the hospital. All information
submitted to the board shall be certified by the hospital
administrator as to its accuracy and truthfulness;
(3) The rates of payment for medicaid are reasonable and
adequate to meet the costs which must be incurred by efficiently
and economically operated hospitals subject to the provisions of
this article. The rates shall take into account the situation of
hospitals which serve disproportionate numbers of low income
patients and assure that individuals eligible for medicaid have
reasonable access, taking into account geographic location and
reasonable travel time, to inpatient hospital services of
adequate quality;
(4) The rates are equitable in comparison to prevailing
rates for similar services in similar hospitals as determined by
the board; and
(5) In no event shall a hospital's receipt of emergency
disaster funds from the federal government be included in such
hospital's gross revenues for either rate-setting or assessment
purposes.
(b) In the interest of promoting efficient and appropriate
utilization of hospital services, the board shall review and make
findings on the appropriateness of projected gross revenues fora hospital as such revenues relate to charges for services and
anticipated incidence of service. The board shall further render
a decision as to the amount of net revenue over expenditures that
is appropriate for the effective operation of the hospital.
(c) When applying the criteria set forth above, the board
shall consider all relevant factors, including, but not limited
to, the following: The economic factors in the hospital's area;
the hospital's efforts to share services; the hospital's efforts
to employ less costly alternatives for delivering substantially
similar services or producing substantially similar or better
results in terms of the health status of those served; the
efficiency of the hospital as to cost and delivery of health
care; the quality of care; occupancy level; a fair return on
invested capital, not otherwise compensated for; whether the
hospital is operated for profit or not for profit; costs of
education; and income from any investments and assets not
associated with patient care, including, but not limited to,
parking garages, residences, office buildings owned by rural
hospitals, and income from related organizations and restricted
funds whether or not so associated: Provided, That no costs
associated with the leasing or provision of office space shall
be permitted for consideration in rate-setting: Provided,
however, That hospitals located in rural areas may consider the
costs of providing office space to a health care practitioner
during that practitioner's first year of association with that
hospital.
(d) Wages, salaries and benefits paid to or on behalf of
nonsupervisory employees of hospitals subject to this articleshall not be subject to review unless the board first determines
that such wages, salaries and benefits may be unreasonably or
uncustomarily high or low. Said exemption does not apply to
accounting and reporting requirements contained in this article,
nor to any that may be established by the board. "Nonsupervisory
personnel", for the purposes of this section, means, but is not
limited to, employees of hospitals subject to the provisions of
this article who are paid on an hourly basis.
(e) Reimbursement of capital and operating costs for new
services and capital projects subject to article two-d of this
chapter shall not be allowed by the board if such costs were
incurred subsequent to the eighth day of July, one thousand nine
hundred seventy-seven, unless they were exempt from review or
approved by the state health planning and development agency
prior to the first day of July, one thousand nine hundred eighty-
four, pursuant to the provisions of article two-d of this
chapter.
(f) The board shall consult with relevant licensing agencies
and may require them to provide written findings with regard to
their statutory functions and information obtained by them in the
pursuit of those functions. Any licensing agency empowered to
suggest or mandate changes in buildings or operations of
hospitals shall give notice to the board together with any
findings.
(g) Rates shall be set by the board in advance of the year
during which they apply except for the procedure set forth in
subsection (c), section twenty-one of this article and shall not
be adjusted for costs actually incurred.
(h) All determinations, orders and decisions of the board
with respect to rates and revenues shall be prospective in
nature.
(i) No hospital may charge for services at rates in excess
of those established in accordance with the requirements of and
procedures set forth in this article.
(j) Notwithstanding any other provision of this article, the
board shall approve all requests for rate increases by hospitals
which are licensed for one hundred beds or less and which are not
located in a standard metropolitan statistical area where the
rate of increase is equal to or less than the lowest rate of
inflation as established by a recognized inflation index for
either the national or regional hospital industry. The board
may, by regulation, impose reporting requirements to ensure that
a hospital does not exceed the rate of increases permitted
herein.
(k) Notwithstanding any other provision of this article, the
board shall develop an expedited review process applicable to all
hospitals licensed for more than one hundred beds or that are
located in a standard metropolitan statistical area for rate
increase requests which may be based upon a recognized inflation
index for the national or regional hospital industry.
CHAPTER 16A. WEST VIRGINIA HEALTH CARE ACCESS
AND REFORM ACT OF 1994.
ARTICLE 1. GENERAL PROVISIONS.
§16A-1-1. Short title.
This chapter shall be known and may be cited as the "West
Virginia Health Care Access and Reform Act of 1994".
§16A-1-2. Legislative intent.
It is the intent of the Legislature to:
(A) Develop comprehensive and secure health care coverage;
(B) Simplify the health care system for consumers and health
care professionals;
(C) Control the cost of health care for employers, employees
and others who pay for health care coverage;
(D) Ensure high quality health care;
(E) Encourage all individuals to take responsibility for
their health status; and
(F) Establish a health care policy commission to:
(1) Implement the provisions of this article;
(2) Collect information related to all aspects of health
care services in this state;
(3) Develop policy recommendations based on the need to
establish an effective and efficient health care delivery system;
and
(4) Coordinate the activities of state agencies that deliver
health care services, implementing policies designed to contain
costs.
§16A-1-3. Definitions.
For purposes of this chapter:
(a) "Capitated managed care option" means a health services
system 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.
(b) "Certificate of need" means certificate of need asdescribed in article two-d, chapter sixteen of this code.
(c) "Certificate of need allocation" means the maximum
aggregate principal amount of certificates of need allocated by
the commission 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.
(d) "Commission" means the health care policy commission
established in section four of this article.
(e) "Cost containment" means measures designed to control
and reduce increases in health care expenditures.
(f) "Expenditure target" means a budget developed for
aggregate health care spending within a specified time period.
(g) "Executive director" means the chief operations officer
of the health care policy commission established in section five
of this article.
(h) "Global budget" means an annually set or negotiated cap
on 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.
(i) "Health" means both physical and mental health.
(j) "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 commission and a sanatorium as
included in the definition of "hospital" in Title XVIII of the
federal Social Security Act and treatment and care compatible
with such services: Provided, That such designation may bedifferent for different purposes provided by this chapter.
(k) "Health 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.
(l) "Health care provider" means any person, facility or
institution, including, but not limited to, a person, facility or
institution licensed, certified, authorized or permitted by law
to provide health care services in this state, designated as such
by rule of the commission: Provided, That such designation may
be different for different purposes provided by this chapter.
(m) "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.
(n) "Health education" means any combination of learning
opportunities designed to facilitate voluntary adaptations of
behavior conducive to health.
(o) "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 whichorganization complies with applicable provisions of this code,
including, but not limited to, article twenty-five-a, chapter
thirty-three of this code.
(p) "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.
(q) "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.
(r) "Home care" means any organization or part thereof
exclusive of home health care agencies and hospice agencies,
which supply, arrange or refer personnel to provide home care
services for which that organization receives a fee,
consideration or compensation of any kind. The term includes,
but is not limited to, the following: Homemaker/home care aide
providers; companion care providers; registry services;
intravenous therapy providers; in-home dialysis providers;
durable medical equipment providers who offer an ongoing service
as part of providing the equipment; government departments and/or
contracted agencies that provide direct home care or
habilitative/rehabilitative services.
(s) "Home health care" means an organization or part
thereof, staffed and equipped to provide private duty care and/or
skilled nursing in their place of residence and at least one of
the following services: Physical therapy; occupational therapy;
speech therapy; medical, social or home health aide services to
aged disabled, ill or infirm persons on a part-time or
intermittent basis.
(t) "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.
(u) "Managed care" means a system of comprehensive and
coordinated health care, 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.
(v) "Medicaid" means the state and federal program that
provides reimbursement for health care services for eligible
persons and families.
(w) "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.
(x) "Payor" means public, private, governmental and
nongovernmental payors or purchasers of health care services, all
in conformance with federal laws, rules and regulations.
(y) "Practice guideline" means a systematically developed
statement designed to assist health care providers and patientsto make decisions about appropriate health care for specific
clinical conditions.
(z) "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.
(aa) "Primary care physician" means a generalist physician
who provides definitive care to the undifferentiated patient at
the point of first contact and takes continuing responsibility
for providing the patient's care. Such a physician must be
specifically trained to provide primary care services. Primary
care physicians devote the majority of their practice to
providing primary care services to a defined population of
patients. The style of primary care practice is such that the
personal primary care physician serves as the entry point for
substantially all of the patient's medical and health care needs
-- not limited by problem origin, organ system, gender or
diagnosis. Primary care physicians are advocates for the patient
in coordinating the use of the entire health care system to
benefit the patient.
(bb) "Primary care or primary care services" 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 andtreatment 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 patient assessment, 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.
(cc) "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
rather than the provision of individualized health services.
(dd) "Quality assurance" means a program to measure and
monitor the quality of care rendered by a group or institutionand includes procedures to remedy deficiencies or problems.
(ee) "Regional public health network" means the regional
public health network as described in article two of this
chapter.
(ff) "Rural" means the areas of the state which are
underserved for health care services.
(gg) "Small business" means any person, firm, corporation,
partnership or association actively engaged in business in the
state of West Virginia for at least one year who, on at least
fifty percent of its working days during the preceding year,
employed no more than forty-nine or not less than two eligible
employees.
(hh) "State agency" means any division, agency, board,
department, authority, bureau, commission or any other state
governmental body.
(ii) "State health plan" means the plan, as amended by the
health care planning commission through revision of certificate
of need standards and as to be amended by the health care policy
commission, establishing guidelines, goals, objectives and other
mechanisms by and through which state health programs serve the
provisions of this chapter. The state health plan will be filed
with the secretary of state and any amendments or proposed
amendments will be filed in the state register.
(jj) "State health programs" means those state agencies
determined by the health care policy commission to have policies,
programs, services, duties or responsibilities relating to health
or health care. At a minimum, such programs shall include the
department of health and human resources, the health care costreview authority, the division of workers' compensation, the
public employees' insurance agency, the division of insurance,
and the division of rehabilitation services.
§16A-1-4. West Virginia health care policy commission created;
composition; appointment of members; terms of office;
expenses and compensation; meetings; quorum; records;
removal of members.
(a) There is hereby created the West Virginia health care
policy commission as a governmental instrumentality and a body
corporate with the powers and duties set forth in this chapter.
(b) The commission shall consist of nine members appointed
by the governor with the advice and consent of the Senate and
three nonvoting members composed of the insurance commissioner,
the secretary of the department of health and human resources and
the chairman of the health care cost review authority. The chair
shall be designated by the governor. The terms of each member
shall be for six years, except that of those initially appointed,
one-third shall be appointed for two years, one-third shall be
appointed for four years and one-third shall be appointed for six
years. The governor may remove a member of the commission only
for cause as provided in article six, chapter six of this code.
Any member appointed to fill a vacancy occurring prior to the
expiration of a term shall be appointed only for the remainder of
the unexpired term. The governor shall make the initial
appointments to the board no later than the first day of June,
one thousand nine hundred ninety-four. Before entering upon his
or her duties as a member of the commission, each member shall
comply with the oath of office requirements of article one,chapter six of this code.
(c) Members shall be selected on the basis of their
experience and expertise in relevant subjects, including the
practice of medicine, nursing or other clinical practices; health
care financing and delivery; state health systems; consumer
protection, business or law; and delivery of care to vulnerable
populations.
(d) In appointing members of the commission, the governor
shall select members as follows:
One member shall represent physicians primarily in private
practice;
One member shall respresent hospitals;
Four members shall represent consumers, one of whom is over
the age of sixty-five and one of whom is disabled: Provided, That
no consumer member may have a pecuniary interest in or hold an
official relation to any health care plan, health care provider,
insurance company, pharmaceutical company, medical equipment
company or other affected industry;
One member shall represent small businesses that purchase
group health insurance;
One member shall represent organized labor; and
One member shall represent the nursing profession.
(e) Members of the commission shall be paid a per diem of
fifty dollars and actual expenses for days, or proportionately
for half days, traveling to, from or engaged in commission
business.
(f) A majority of the members of the commission shall
constitute a quorum, and a quorum must be present for thecommission to conduct business. The affirmative vote of at least
the majority of the members present is necessary for any action
taken by vote of the commission. No vacancy in the membership of
the commission impairs the rights of a quorum by vote to exercise
all the rights and perform all the duties of the commission.
Meetings of the commission shall be conducted in accordance with
the open meeting provisions of article nine-a, chapter six of
this code.
§16A-1-5. Executive director; duties; removal.
(a) The commission shall appoint a full-time executive
director to manage the operations of the commission.
(b) The executive director shall be the chief operations
officer of the commission and shall be responsible for the
following:
(1) Coordinating the activities of state health programs to
achieve the health care reform principles defined in the state
health plan;
(2) Gathering and evaluating provider concerns about the
health care system and developing strategies to respond to those
concerns;
(3) Overseeing all data collection and information system
reforms;
(4) Drafting the state health plan amendments and proposed
health care reform legislation;
(5) Planning and evaluating health care reforms; and
(6) Evaluating consumer concerns about the quality and
accessibility of health care services and developing strategies
to respond to those concerns.
(c) The executive director shall report directly to the
commission and may be removed from his or her position only by
majority vote of the commission.
§16A-1-6. Powers of the commission generally.
(a) The commission has the following general administrative
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 the lessee or lessor;
(3) To make bylaws and to develop and implement procedures
governing the internal operation and administration of the
commission, including guidelines for purchasing and performing
its duties under this chapter involving the expenditure of funds;
(4) To adopt an official seal;
(5) To employ staff, which shall be exempt from the
provisions of article six, chapter twenty-nine of this code;
(6) To make contracts and to execute all instruments
necessary or convenient for performing its duties and
administrative functions;
(7) To require, notwithstanding any other provision in this
code to the contrary, all officers and employees of any state
agency, board, commission or authority to furnish any records or
information which the commission or its staff requests for
carrying out the purposes of this chapter: Provided, That the
commission shall hold any records or information received as
confidential as the originating agency, board, commission or
authority must under state or federal law;
(8) To charge fees for services rendered by, and to require
reimbursement for expenses incurred by the commission in
rendering services, receiving applications, granting certificates
and providing information to public and private entities and
individuals, as determined by rule of the commission. Fees are
to 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 commission in performing
its duties under this chapter in ensuing fiscal years;
(9) To promulgate, pursuant to the provisions of chapter
twenty-nine-a of this code, such rules as it deems necessary to
implement the provisions of this chapter and to prevent the
circumvention and evasion thereof, including rules for all
policies, programs and services relating to health or health care
services that are operated, financed, monitored, managed,
controlled, regulated or provided by any state health program;
(10) To obligate and expend funds prior to the service
provided therefor, so as to enable the commission to provide
start-up funds for various programs and projects;
(11) To conduct hearings and investigations the commission
deems necessary for the performance of its duties. The
commission shall announce the time, date and purpose of all
hearings in a timely manner and shall open its hearings to the
public except as may be necessary to conduct business of an
executive nature. Any hearing may be conducted by the commission
or by a hearing examiner appointed for that purpose. The chairof the commission may issue subpoenas and subpoenas duces tecum,
which shall be issued and served pursuant to the time and
enforcement specifications in section one, article five, chapter
twenty-nine-a of this code;
(12) To exercise any and all other powers necessary for the
commission to discharge its duties and otherwise carry out the
purposes of this chapter.
(b) The commission is charged with the responsibility of
initiating and implementing comprehensive health care reform in
West Virginia consistent with other provisions included within
this chapter: Provided, That except as specifically designated
by this article, the commission shall not be responsible for the
day-to-day administration of any state health program. No person
harmed or aggrieved by the action or inaction of a particular
state health program shall have a right to appeal to the
commission to challenge that action or inaction or to sue the
commission for injuries resulting therefrom.
(c) Specific responsibilities of the commission shall be to
set policy guidelines and priorities for health care reform,
including, but not limited to:
(1) Quality assurance in the provision of health care
services, including regulations and licensing regarding health
care services, providers and payors;
(2) Data collection, analysis, research and planning with
respect to the state's health care system;
(3) Regulation, management, oversight and the development of
rate setting methodologies for public and private health care
purchasing in the state;
(4) The development of rate setting methodologies and
oversight of the health insurance industry in the state;
(5) The promotion of health care networks of preventive,
primary, secondary and tertiary care in the state;
(6) Planning and implementing methods to finance and contain
the costs of the state's health care system, including, but not
limited to, the development of rate setting and health care
financing methodologies;
(7) Being the state's designated liaison with the federal
government to implement at the earliest possible date policies
and programs consistent with appropriate federal reforms;
(8) Overseeing state health programs' compliance with the
state health plan;
(9) Disseminating information to the public regarding the
health status of West Virginians, the state's health care system,
and state and federal health care reform;
(10) Establishing licensing for ambulatory care, urgent
care, nursing care, home care, home health care and free-standing
health care; and
(11) Developing appropriate accountability systems for state
approved or provided health care programs. The commission may
contract with another entity, public or private, for the
development, implementation or review of accountability systems
or programs.
(d) The commission shall be solely responsible for amending
the state health plan in order to guide state health programs
toward achieving the health care reform principles defined in
this chapter. The state health plan heretofore amended by thehealth care planning commission through revision of certificate
of need standards and to include the 1990 state health plan as an
amendment to the 1982 state health plan and subsequent amendments
shall remain in effect until amended by majority vote of the
commission. All state health programs and their regulatory
activities shall comply with the provisions of the state health
plan as amended: Provided, That any proposed amendments to the
state health plan that contradict any specific provisions of this
code and thus cannot be implemented with executive action shall
be submitted to the Legislature in the form of proposed
legislation. The commission shall promulgate procedural rules
for amending the state health plan on or before the first day of
September, one thousand nine hundred ninety-four.
§16A-1-7. Specific duties of the commission and state agencies;
deadlines.
(a) Advisory groups. -- On or before the first day of July,
one thousand nine hundred ninety-four, the commission shall
establish an advisory group to represent health care provider
interests and concerns before the commission. The regional
health advisory councils now in existence shall continue to serve
as community health advisory committees, under the direction of
the executive director.
(b) State health programs. -- On or before the first day of
September, one thousand nine hundred ninety-four, the commission
shall determine the state health programs whose policies,
programs, services, duties or responsibilities relating to health
or health care will be subject to the state health plan. The
programs will include at a minimum, the department of health andhuman resources, the health care cost review authority, the
division of workers' compensation, the public employees'
insurance agency, the division of insurance and the division of
rehabilitation services. It is the responsibility of each state
health program to ensure that its policies, programs, services,
actions and expenditures are consistent with the provisions of
this chapter, the state health plan and other guidelines
established by the commission.
(c) Policy recommendations. -- On or before first day of
December, one thousand nine hundred ninety-four, the commission
shall present a preliminary set of administrative and legislative
recommendations to the governor and Legislature. On or before
the first day of October, one thousand nine hundred ninety-five,
the commission shall present a comprehensive set of specific
administrative and legislative recommendations to the governor
and the Legislature reasonably designed to:
(1) Guarantee that all West Virginians are covered by a
comprehensive set of health care benefits, regardless of
financial, employment or health status;
(2) Increase the availability of primary and preventive care
services and professionals in underserved areas of the state;
(3) Slow or reduce to the general inflation rate the rate of
health care cost increases for all payors;
(4) Improve the health status of the citizens of this state;
(5) Increase the administrative efficiency and quality of
state health programs;
(6) Maximize the opportunities presented by comprehensive
federal health care reform initiatives; and
(7) Assure the quality, integration and coordination of
health care services.
The recommendations described in this subsection shall be
accompanied by analyses of at least the following issues:
(A) The effect and estimated future value of cost
containment initiatives already implemented in state health
programs and methods to institute further cost containment
methods for such programs;
(B) The advisability of instituting rate setting
methodologies such as diagnostic related groups, resource-based
relative value scales and global budgets;
(C) The extent to which capitated and other managed health
care systems are available or potentially available in the state
and specifically, whether these systems allow the state to
provide medicaid coverage to the working poor without increasing
the overall costs of the program;
(D) The extent to which state-funded health profession
schools have helped increase access to primary and preventive
care services in underserved areas of the state and
recommendations regarding the same; and
(E) The need, if any, for reform of the health insurance
industry and the corresponding regulatory framework in this
state.
(d) Practice guidelines demonstration project. -- On or
before the first day of January, one thousand nine hundred
ninety-five, the commission shall promulgate, pursuant to the
provisions of chapter twenty-nine-a of this code, legislative
rules establishing practice guidelines for obstetrical services. Upon approval by the Legislature, these practice guidelines shall
provide the basis for an affirmative defense to malpractice
claims predicated on actions taken within those guidelines.
(e) Annual certificate of need capital allocation budget. --
On or before the first day of January, one thousand nine hundred
ninety-five and each year thereafter, the health care cost review
authority shall develop and submit to the legislative oversight
committee on health care policy, a maximum annual statewide
budget for capital expenditures requiring certificates of need.
This budget shall:
(1) Establish classes of certificates of need and the
maximum aggregate amount of certificates that may be issued
within each class each year;
(2) Support the regionalization of high technology and
specialty care and the development of primary care and other
community-based, low-cost services;
(3) Support the establishment and use of integrated health
care networks;
(4) Provide exceptions in emergency circumstances that pose
a threat to public health;
(5) Provide exceptions for border hospitals; and
(6) 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.
If necessary, the health care cost review authority shall
declare a moratorium on approval of certain or all classes of
certificates of need for up to a six-month period in order toeffectively implement this subsection. The health care cost
review authority shall have discretion to approve capital
expenditures in excess of its capital expenditure budget
allocation. In no event shall the annual capital expenditure cap
exceed the average of total capital expenditures subject to
certificate of need review for the preceding three fiscal years.
(f) Statewide global budget target. -- On or before the
first day of December, one thousand nine hundred ninety-five and
each year thereafter, the commission shall specify in the state
health plan a projected statewide global budget target for total
annual health related expenditures in the state for the fiscal
year one thousand nine hundred ninety-six-ninety seven, detailing
appropriate categories of expenditures and describing the state
health programs involved in administering or regulating such
expenditures. For fiscal year one thousand nine hundred ninety-
seven-ninety-eight and each year thereafter, each state health
program shall take all steps necessary to ensure that the portion
of the statewide global budget over which it has administrative
or regulatory authority shall not exceed the statewide budget so
specified.
(g) Self-referral guidelines. -- On or before the first day
of July, one thousand nine hundred ninety-five, the commission
shall 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.
(h) Small business and self-employed health insurance pool.-- On or before the first day of January, one thousand nine
hundred ninety-five, the commission, the public employees
insurance agency and the insurance commissioner shall develop a
health insurance plan to provide affordable group health
insurance for small businesses and self-employed individuals.
The plan shall be administered by the public employees insurance
agency utilizing the pool for participating local government
agencies.
(i) Fee publication. -- On or before the first day of
January, one thousand nine hundred ninety-five, all health
profession licensing boards created by this code shall provide
the commission and publicly post a current list of fees for the
twenty-five most common procedures performed by the health care
providers licensed or regulated by each board pursuant to
consistent procedures and fee reporting standards set by the
commission.
(j) Moratorium on issuance of license. -- Unless otherwise
authorized by the commission, no facility may be issued a new
behavioral health facility license until the expiration of
eighteen months immediately following the effective date of this
article. This subsection does not apply to facilities filing for
renewal applications.
(k) Uniform billing. -- On or before the first day of
January, one thousand nine hundred ninety-five, the commission
shall develop uniform claims billing forms, uniform electronic
billing procedures and other uniform claims procedures for all
health care providers and payors. The uniform billing procedures
are to be designed to facilitate integrated billing of allprovider services and to eliminate the billing of separate units
of service for procedures that require interrelated units of
service.
(l) Preexisting conditions. -- Notwithstanding any other
provision of this code to the contrary, individual and group
accident, sickness and long-term care insurance policies,
including, but not limited to, those issued pursuant to articles
fifteen, fifteen-a, sixteen, twenty-four, twenty-five,
twenty-five-a, and twenty-eight, chapter thirty-three of this
code, may not contain pre-existing conditions clauses for
individuals who were continuously covered by another comparable
individual or group accident, sickness or long-term care
insurance policy up to thirty days prior to the date of
application. If the applicant is applying for coverage under a
health benefit plan in which the preexisting conditions provision
requires a longer exclusion period than the previous plan or the
applicant was still subject to the previous exclusion provision,
the health benefit plan shall credit the time that applicant was
covered under the previous plan. The insurance commissioner shall
draft proposed legislation or promulgate rules, pursuant to the
provisions of chapter twenty-nine-a, necessary to implement the
provisions of this section by the first day of July, one thousand
nine hundred ninety-five.
(m) Performance Audit. -- On or before the first day of
July, one thousand nine hundred ninety-five, and every year
thereafter, the commission shall contract with a nonstate agency
for a review of: (1) Their performance in attaining or
progressing toward each of the responsibilities and dutiesdelegated to them; and (2) the impact of implemented reforms on
the health care delivery system.
§16A-1-8. Management of state health programs and facilities.
(a) The following cost containment strategies must be
implemented by state health programs:
(1) Medicaid, public employees insurance agency and workers'
compensation shall consolidate certain administrative functions,
including, but not limited to, common claim forms, standardized
policies and procedures, shared hospital bill audit mechanisms,
and data reporting on or before the first day of July, one
thousand nine hundred ninety-four.
(2) Medicaid shall, on or before the first day of July, one
thousand nine hundred ninety-four:
(A) Implement a statewide capitated managed care system for
behavioral health care services that maximizes opportunities for
federal funding for such services without increasing total state
behavioral health expenditures; and
(B) Submit to the federal government necessary waiver
requests to implement a capitated managed care demonstration
project for families and the elderly.
(3) Public employees insurance agency shall develop and
implement a capitated managed care option for enrollees by the
first day of July, one thousand nine hundred ninety-five.
(b) The Legislature hereby finds that there is a critical
need for enrollees in state health programs to have adequate
access to primary care services; that there is a severe shortage
of primary care health professionals in this state; and that
there is increasing difficulty in recruiting and retainingprimary care professionals as demand for their services increases
nationwide. The Legislature further finds that there is
substantial need for state health programs to adequately
reimburse health professionals for primary care services provided
their enrollees. Accordingly, on or before the first day of
July, one thousand nine hundred ninety-four, public employees
insurance agency, medicaid and any other state health programs
designated by the commission to comply with this subsection shall
adopt enhanced reimbursement rates and other appropriate
mechanisms specifically designed to encourage primary care
professionals to practice in the state over the long term so that
the enrollees of state programs are assured primary care services
will be available to them.
§16A-1-9. Uniform health professionals' data system.
The uniform health professionals' data system previously
established under the commissioner of the bureau of public health
shall be continued under the executive director of the health
care policy commission. 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 health care profession licensing boards, 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 executive director. Each board
shall be required to transfer to the commission an amount, to be
determined by the commission based on the number of health careprofessionals under the jurisdiction of that board, to cover the
estimated cost of establishing and maintaining the uniform health
professionals' data system required by this section. The
executive director shall publish an annual report setting forth
an analysis of the data collected, including present number of
practicing professionals, geographic distribution and projected
shortages based on demographic information. The report shall be
distributed to the health care policy commission, the governor
and the Legislature on or before the first day of January, one
thousand nine hundred ninety-five, and the first day of January
every year thereafter.
§16A-1-10. Certification of health care networks.
(a) It is hereby the intent of the Legislature that the
commission on behalf of the state, become actively involved in
the development of cooperative and collaborative efforts by local
health care providers to ensure cost effective access to quality
health care services for the citizens of this state. This action
is imperative not only to make the best use of existing health
professionals and facilities, but also to retain those resources
in the future.
(b) On or before the first day of July, one thousand nine
hundred ninety-five, the commission shall promulgate rules to
develop and implement a system for preliminary and final
certification of health care networks. A health care network is
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 somecases, social needs of its patients, and which is planned,
established and operated on a community level within the
framework of a state plan. In order to be so designated, a
network must:
(1) Provide an analysis of access, costs and quality of
health care services for a geographically defined population;
(2) Provide or arrange for the delivery of integrated
preventive, primary care and acute care services; and
(3) Provide or arrange for the delivery of other health,
social and transportation services as deemed necessary by the
legally recognized organization.
(c) Health care providers including, but not limited to,
pharmacists, dentists, physicians and group medical practices and
other entities desiring to obtain certification of health care
networks must first obtain a preliminary certification from the
commission under subsection (b) of this section. Health care
providers and other entities are authorized to enter into
discussions regarding the establishment and certification of a
health care network and, upon obtaining a preliminary or final
certification of such health care network pursuant to this
section, shall be exempt or immune from the antitrust provisions
of state and federal law as provided under section eleven of this
article.
(d) Health care networks must meet other criteria as set
forth by the commission in the state health plan.
§16A-1-11. Antitrust; state action.
(a) The Legislature hereby specifically finds that in
certain circumstances, the benefits to the public of theintegration of and cooperation and collaboration among health
care providers, outweigh the benefits to the public that would
otherwise be derived from competition, and, consequently, in the
event that preliminary or final certification of a health care
network is made by the commission pursuant to this article, these
benefits 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 commission, to provide direction, supervision and
control over health care networks including, but not limited to,
pharmacists, dentists, physicians and group medical practices
certified pursuant to section ten of this article in order to
assure that the benefits of integration, collaboration and
cooperation outweigh the adverse effects of a reduction in
competition, if any, and in order as to provide immunity under
federal antitrust laws to the health care organizations or
practitioners receiving preliminary or final certification of
health care networks.
(c) The antitrust provisions set forth in article eighteen,
chapter forty-seven of this code do not apply to discussions
authorized under this article. Any contract, business or
financial arrangement or other activity, practice or arrangement
involving health care providers or other persons and receiving
preliminary or final certification by the commission under this
article does not constitute an unlawful contract, combination or
conspiracy in unreasonable restraint of trade or commerce.
Preliminary or final certification by the commission is an
absolute defense against any action under the state antitrustlaws.
(d) Nothing in this article gives the commission or any
person the right to require a health care provider or other
person to discuss or enter into a health care network or to
preclude a health care provider or other person from attempting
to collaborate or cooperate for the provision of health care
services independent of the certification process defined by the
commission. 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 pursuant to the provisions of this article.
§16A-1-12. Ready, willing and able provider provision;
definitions.
(a) As used in this section:
(1) "Health care services" means health care services or
products rendered or sold by a provider within the scope of the
providers' license or legal authorization. The term includes,
but is not limited to, hospital, medical, surgical, dental,
ambulance, vision and pharmaceutical services or products.
(2) "Health insurer" includes, but is not limited to, any
hospital or medical expense incurred policy; health, hospital or
medical service corporation contract; plan provided by a
multiple-employer welfare arrangement; health maintenance
organization contract offered by an employer; any other policy or
plan issued by an insurer which provides health related benefits
to small employers; subscription contract; third party
administrative plan; self-insured plan; preferred provider
organization; exclusive provider organization; public employeesinsurance agency; workers' compensation agency; vocational
rehabilitation agency; state medicaid program; or other similar
entity.
(3) "Insured" means an individual entitled to reimbursement
for expenses of health care services under a policy, certificate
subscribed contract issued or administered by a health insurer or
other arrangement.
(4) "Provider" means an individual or entity duly licensed
or legally authorized to provide health care services as set
forth in this subsection.
(b) Subject to the statutory authority of the health care
cost review authority and the insurance commissioner, a health
insurer may:
(1) Enter into agreements with providers relating to terms
and conditions of reimbursement for health care services that may
be rendered to insureds of the health insurer, including
agreements relating to the amounts to be charged insureds for
services rendered, quality standards, and the terms and
conditions for activities intended to reduce unnecessary or
inappropriate care; and
(2) Issue or administer policies in this state that include
incentives or disincentives for the insured to utilize the
services of a provider that has entered into an agreement with
the health insurer under subdivision (1) of this subsection.
(c) A health insurer shall establish terms and conditions which
must be met by providers wishing to enter into a reimbursement
agreement with the health insurer.
(d) These terms and conditions shall not discriminate against oramong providers. Differences in prices among providers based on
individual negotiations with such providers, market conditions,
patient mix, method of payment or price differences among
providers in different geographical areas shall not be deemed
unreasonable discrimination.
(e) No provider ready, willing and able to meet the terms of the
conditions established by a health insurer for any agreement for
the provision of health care services, as defined in subsection
(a) of this section, shall be denied the right to enter into an
agreement with the health insurer. Once the agreement is in
force, the provider must continue to meet the terms and
conditions of the agreement, including all quality, efficiency
and price standards set by the health insurer.
(f) This section shall not be construed to expand the scope of
insurance coverage beyond the policy, certificate of subscriber
agreement.
(g) Any party violating the provisions set forth in this section
shall be guilty of an unfair trade practice as set forth in
article eleven-a, chapter forty-seven of this code and subject to
the penalties thereunder.
§16A-1-13. Long-term care.
(a) The commission is 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 setting forth goals and objectives that
consider a full range of long-term care services, activities and
policy with respect to the following:
(1) A system for long-term care 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 noninstitutional 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 commission may 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.
§16A-1-14. Wellness; community-based health promotion programs.
(a) The Legislature hereby specifically finds that good
health is greatly influenced by socioeconomic factors, individual
lifestyles and behaviors and that organizational and
institutional changes must be made to support individual change.
(b) The commission shall develop or cause to be developed,
not later than the first day of January, one thousand nine
hundred ninety-five, a plan: (1) To provide education programs
on proper access and use of the health care system; and (2) to
encourage citizens to adopt and maintain healthful lifestyles.
The plan, among other measures, may include activities designed
to encourage citizens to:
(A) Establish a relationship with a primary care provider;
(B) Understand the benefits of continuity of care;
(C) Use health care providers appropriately;
(D) Follow a recommended schedule of preventive care;
(E) Follow the advice and instructions of their health care
providers;
(F) Take an active, informed role in the treatment process;
(G) Learn principles of self-care; and
(H) Complete advance directive documents such as those
provided for in articles thirty and thirty-a, chapter sixteen of
this code.
(c) The commission 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-1-15. Tort reform proposals.
The commission shall develop and submit to the governor and
the Legislature, not later than the first day of January, one
thousand nine hundred ninety-five, proposed tort reform
legislation designed to decrease to the national average the
state's average number of medical malpractice claims paid per one
thousand physicians.
§16A-1-16. Duplication of services prohibited; cooperation and
coordination agreements with other state agencies for use of
existing state services.
Services and programs currently operated by state agencies
and state entities may not be arbitrarily duplicated by the
health care policy commission. In developing services and
programs, the health care policy commission shall consult with
state agencies and state entities having current responsibilities
in those areas. If the commission determines that the services
and programs may be duplicative, the commission shall enter into
cooperative agreements with the agency or entity for the use of
space, services, equipment and personnel deemed necessary to
implement the provisions of this chapter. State agencies andentities shall fully cooperate with the commission in eliminating
any unnecessary duplication of services. Should the commission
determine that it is necessary to duplicate any existing service
or to employ additional personnel to perform the duplicated
services, the commission shall provide notice of that
determination to the governor, the secretary of health and human
resources and the agency or entity currently providing the
service. Upon notification by the commission, the agency or
entity with existing services shall reduce staffing and
employment positions used to provide those existing services on
the basis of one employee for each new employee hired by the
commission.
§16A-1-17. Effective date and termination date.
This article shall be effective from passage.
Notwithstanding the provisions of section four, article ten,
chapter four of this code to the contrary, this commission shall
terminate on the thirtieth day of June, one thousand nine hundred
ninety-six.
ARTICLE 2. PUBLIC HEALTH SYSTEM.
§16A-2-1. Short title.
This article shall be known as the "Public Health System Act
of 1994".
§16A-2-2. Legislative findings and purposes.
The health problems of West Virginia and pending federal
reforms demand that health care reform in this state include an
aggressive public health initiative that redefines the mission
and role of public health. Specifically, the state's public
health system must focus on providing core public healthfunctions and those population-based services and preventive
population-based services identified by the federal centers for
disease control and prevention and the institute of medicine. As
the public health role and mission are redefined and as a
reformed health care delivery system is implemented, many
individuals currently receiving primary care services from local
health departments will receive that care from other health care
providers as such providers become available to such individuals.
Care must be taken in a redesigned public health system to assure
that individuals will not lose needed services and our public
health system does not suffer because of any change in focus or
in method of funding local health services.
The purpose of this legislation is to promote the
achievement of all the above through the establishment of an
efficient and coordinated public health system in which local
boards of health, regional public health networks, the public
health system advisory council and the bureau of public health
work together to achieve the most effective public health system
possible.
§16A-2-3. Definitions.
For purposes of this article:
(a) "Core public health functions" means the assessment of
community health status and available resources; policy
development resulting in efforts to achieve better health; and
assuring that needed services are available, accessible and of
acceptable quality.
(b) "Population-based services" means services that focus on
the identification of health threats; protection of theenvironment, housing, food and water; community health
protection; screening and prevention services; health promotion
programs; and services that improve access to care.
(c) "Preventive population-based services" means services
that target the health status of the entire population, as
opposed to health care services which target individuals and
which are usually administered after a person becomes ill.
§16A-2-4. Public health system advisory council.
There is hereby created a public health system advisory
council (hereinafter "council"). The council shall be appointed
by the commissioner of the bureau of public health in the
department of health and human resources, who shall also appoint
the council's chair. The members of the council shall reside
throughout the state and represent diverse segments of the
public. The council members are to serve without compensation,
except they may be reimbursed for reasonable expenses incurred in
the performance of their duties. The department of health and
human resources shall, within funds available, provide the
council with such staff support, information and consultants as
the council deems necessary. Meetings of the council will be
called by the chair.
The council will advise the health care policy commission
and the commissioner of the bureau of public health in the
department of health and human resources as to the development of
a public health system and engage in activities to promote that
development. Specifically, the council shall recommend to the
commissioner:
(a) The number and geographic boundaries of regional publichealth networks to be established throughout the state;
(b) The appropriate roles, relative authority,
responsibilities and accountability of the bureau of public
health, regional public health networks and local boards of
health in this state's public health system;
(c) The means of funding such networks;
(d) The training needs required by those networks, local
health departments and others involved in public health; and
(e) Such other matters as the council deems advisable to
promote the development of a public health system envisioned by
this act.
§16A-2-5. Local health boards.
In addition to duties performed by a local board of health
under articles two and two-a, chapter sixteen of this code, each
local health board shall coordinate its activities with its
regional public health network; conduct community health
assessment and assurance activities; develop local policy
recommendations based on its findings; deliver certain
population-based services; provide other core public health
functions; and assure the availability of primary health care
services to populations which might otherwise find these services
inaccessible.
Each local board of health shall appoint a person to serve
as a member of its regional public health network, except a
combined local board of health created under the authority of
section three, article two, chapter sixteen of this code, shall
appoint as many persons as members of its regional public health
network as there are jurisdictions which formed such combinedlocal boards.
If by the first day of March, one thousand nine hundred
ninety-five, a local board of health has not made its appointment
or appointments to its regional public health network, the
department of health and human resources will make such
appointment or appointments to serve until replaced by
appointment by the local board of health.
§16A-2-6. Regional public health networks.
The department of health and human resources, in
consultation with the public health system advisory council,
shall create regional public health networks to facilitate the
development of a model statewide public health system. A
regional public health network is a subdivision of the state and
shall execute the public health policies of the department of
health and human resources, so far as applicable to its region,
with such powers as are necessary to accomplish within its region
the public health system purposes of this act.
The regional health networks will consist of members
appointed by each local board of health located within the
applicable region in accordance with sections of this article.
The regional public health network chairs will be appointed by
the commissioner of the bureau of public health for three-year
terms, except that one third of the first set of chairs appointed
will be appointed for one year and one third of the first set of
chairs will be appointed for two years. Chairs may be
reappointed.
The regional public health networks shall receive such
funding as is made available by the state and other sources andeach network shall expend such funds toward the development and
maintenance of its regional public health network and for local
health services within its region.
ARTICLE 3. INFORMATION SYSTEM; REQUIREMENTS.
§16A-3-1. Information system.
(a) The commission shall develop an information system that
collects and provides data with which the commission can evaluate
health care reform initiatives and the effectiveness and
efficiency of health care services in the state. The commission
is responsible for coordinating data systems, analyzing studies
and developing and disseminating information to policy makers,
health care providers and the public.
(b) The commission 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-3-2. Collection of data; information to be provided.
(a) The commission is to collect data from health care
providers, health insurers and individuals in a manner that is
most cost-effective, and does not unduly burden the providers,
insurers or individuals. The commission may require health care
providers and health insurers to collect and provide, in
accordance with the provisions 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 commission by means of electronic media, tape or
diskette if available or as otherwise requested by thecommission.
(b) Each agency of state government required to submit a
report regarding any aspect of health care to the Legislature or
the governor, or both, shall, at the same time, submit a copy of
the report and source data in electronic and hard copy form to
the commission.
(c) The state health care cost review authority shall
provide to the commission 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 will
require each hospital to provide it with such other information
as the commission may reasonably request to carry out its duties.
The insurance commissioner of West Virginia is to provide to the
commission any information upon request and 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 commission all
information on health profession students and residents as the
commission reasonably requests. If the information is not
available, the boards will take necessary steps to compile the
information requested.
(d) Each agency of state government, including those
specified in subsection (c) of this section, shall provide the
commission with any data or information requested, including data
considered confidential or otherwise protected from external
release. The commission is subject to the same state and federal
statutory restrictions as are applicable to the agency from whichthe data was originally obtained. Data otherwise protected by
statute, may not be further transferred to any entity by the
commission without a separate written agreement with the agency
which originally provided the data to the commission.
(e) 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, are the property of
the commission and may be collected, maintained and used by such
state agencies only in accordance with the rules, policies or
guidelines established by the commission.
§16A-3-3. Confidentiality.
(a) The commission shall not release data that identifies
individuals by name except as specifically required by this code
or by court order. The commission 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 that are conducting
research on health outcomes, practice guidelines and medical
practice style and to researchers working under contract with the
commission. The commission also may release data to any other
person who the commission determines is appropriate to receive
the information: Provided, That recipients must agree to protect
the confidentiality of the data according to this article.
(b) Summary data derived from any of the data collected by
or for the commission may be released in studies produced by the
commission or by any of its contractors, cosponsors and research
affiliates.
(c) The commission is to adopt rules governing access to and
the use of data collected by or for the commission. 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-3-4. National health status indicators.
The commission 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 may 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-3-5. Study of administrative costs.
The commission shall study costs and additional requirements
incurred by health insurers, group purchasers, health care
providers and, to the extent possible, individuals surrounding
the collection and submission of information regarding health
care to the state and federal government, insurers and other
third parties. The commission shall implement by the first day
of July, one thousand nine hundred ninety-five, any reforms that
may reduce these costs without compromising the purposes for
which the information is collected.
§16A-3-6. Health care medical records, provider confidentiality;
criminal penalties.
(a) Any health care provider who has custody of medical
records may reveal specific medical information contained inthose 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 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 commission;
(5) 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;
(6) 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;
(7) Providing information to a third party payor for billing
purposes only;
(8) 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
(9) 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) The 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 is
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined two thousand dollars.
CHAPTER 18C. STUDENT LOANS; SCHOLARSHIPS AND STATE AID.
ARTICLE 3. HEALTH PROFESSIONALS STUDENT LOAN PROGRAMS.
§18C-3-1. Health education loan program; establishment;
administration; eligibility; penalty for nonperformance of
loan terms.
(a) Legislative findings. -- The Legislature finds that
there is a critical need for additional practicing health care
professionals in West Virginia. Therefore, there is hereby
created a health education student loan program to be
administered by the senior administrator of the higher education
central office in consultation with the vice chancellor for
health sciences. The purpose of this program is to provide a
loan for educational costs to students enrolled in healtheducation programs at eligible institutions of higher education
in this state, whether public or private, who intend to practice
their profession in the state following completion of their
studies. The loans are to be awarded on the basis of the
financial need of the student.
(b) Establishment of special account. -- There is hereby
established a special revolving fund account under the board of
trustees in the state treasury to be known as the "Health
Education Student Loan Fund" which shall be used to carry out the
purposes of this section. The fund shall consist of: (1) All
funds on deposit in the medical student loan fund in the state
treasury on the effective date of this section, or which are due
or become due for deposit in the fund as obligations made under
any previous enactment or reenactment of this section; (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 other 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: Provided,
That funds derived from the medical education fee shall be used
only for loans to qualified health education students at the
school where the fee was collected; (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, and repayment of any loans which may be
made from funds in excess of those needed for loans under this
section; (5) amounts provided by medical associations, hospitals,or other medical provider organizations in this state, or by
political subdivisions of the state, under an agreement which
requires the recipient to practice his or her health profession
in this state or in the political subdivision providing the funds
for a predetermined period of time and in such capacity as set
forth in the agreement; and (6) 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 health education student loan fund.
(c) Eligibility and forgiveness requirements for health
education student loan. -- An individual is eligible for a health
education student loan if the individual: (1) Is enrolled or
accepted for enrollment at the West Virginia university school of
medicine, Marshall university school of medicine, the West
Virginia school of osteopathic medicine in a program leading to
the degree of medical doctor (M.D.) or doctor of osteopathy
(D.O.) or any other health professional school in this state
approved by the senior administrator: Provided, That the
individual has not yet received one of these degrees and is not
in default of any previous student loan; (2) meets the
established academic standards; and (3) signs a contract to
practice his or her health profession in this state: Provided,
however, That for every year that an individual practices his or
her health profession in this state, an amount equal to the
average annual amount borrowed, up to twenty thousand dollars of
the loan granted to the individual, will be forgiven.
Loans may be awarded by the director of financial aid of anapproved school of medicine or other health profession school
with the approval of the senior administrator and in accordance
with such rules as may be adopted by the board of trustees on a
priority basis from the pool of all applications with the first
priority being a commitment to serve in an area of this state
following completion of the studies for which the loan is being
granted. A loan from the fund shall be limited to the cost of
education as determined by the applicable health profession
school up to twenty thousand dollars per year.
At the end of each fiscal year, any individual who has
received a health education student loan and who has completed
the education for which the loan was received 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 is to cancel an outstanding amount of the loan equal to
the average annual amount of the loan received up to twenty
thousand dollars for every full twelve consecutive calendar
months of such service.
If an individual, upon completion of the education for which
a loan was received pursuant to the provisions of this section,
fails to perform the service, fails to submit the required
statement of service, or submits a fraudulent statement, in
addition to other penalties, the individual is in breach of
contract resulting in a penalty of two times the amount of the
outstanding balance of the loan granted. The loan balance and
assessed penalties shall be paid within twelve months from thedate defined in the loan agreement. In cases of undue hardship,
the board of trustees may extend the repayment period but shall
impose an interest charge equal to the prime lending rate plus
three percent to the balance remaining after the initial twelve
month repayment period.
A loan recipient who subsequently 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 is 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) Loans granted under medical student loan program. -- Any
student granted a medical student loan under any enactment or
reenactment of this section shall be eligible for consideration
for receipt of such a loan, and/or obligated to repay such loan,
as the case may be, under the prior provisions. Thereafter, the
senior administrator may utilize any funds remaining in the
health education student loan fund or the medical student loan
fund, after all renewal loans have been disposed of, for the
purposes of the health education student loan program. An
individual is eligible for continuation of the medical student
loan if the individual demonstrates financial need, meets
established academic standards and is enrolled or accepted for
enrollment at one of the aforementioned schools of medicine in a
program leading to the degree of medical doctor (M.D.) or doctor
of osteopathy (D.O.): Provided, That the individual has not yet
received one of these degrees and is not in default of anyprevious student loan: Provided, however, That the board of
trustees shall give priority for the loans to residents of this
state, as defined by the board of trustees.
At the end of each fiscal year, any individual who has
received a medical student loan under prior enactments of this
section and who has actually rendered services as a medical
doctor or a doctor of osteopathy in this state, may 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 of services rendered, the board
of trustees shall cancel five thousand dollars of the outstanding
loan or loans for every full twelve consecutive calendar months
of such service.
(e) Report by senior administrator. -- No later than ninety
days following the end of each fiscal ye?ar, the senior
administrator shall prepare and submit a report to the board of
trustees for inclusion in the statewide report card required
under section six, article two, chapter eighteen-b of this code
to be submitted to the legislative oversight commission on
education accountability established under section eleven,
article three-a, chapter twenty-nine-a of this code. The report
of the senior administrator shall include at a minimum the
following information: (1) The number of loans awarded; (2) the
total amount of the loans awarded; (3) the amount of any
unexpended moneys in the fund; and (4) the rate of default during
the previous fiscal year on the repayment of previously awarded
loans.
(f) Promulgation of rules. -- The governing boards shallpromulgate rules necessary for the operation of this section.
§18C-3-1a. Rural health education loan program; establishment;
administration; eligibility; penalty for nonperformance of
loan terms.
(a) Establishment and purpose. -- There is hereby created a
rural health education loan program to be administered by the
senior administrator of the higher education central office in
consultation with the vice chancellor for health sciences. The
purpose of this program is to provide: (1) A loan for
educational costs to students enrolled in health education
programs at West Virginia institutions of higher education who
intend to practice their profession in underserved areas in the
state following completion of their studies or in a health care
specialty in which there is a shortage of health professionals as
determined by the health care policy commission; or (2)
reimbursements for eligible expenses in the rural health scholars
program, established in section three of this article. Loans and
scholars reimbursements are not to be awarded on the basis of the
financial need of the student, rather the loans are to be awarded
based on the need of the state to retain all levels of health
professionals, particularly primary care specialists.
Consideration will be given to students in programs leading to
degrees in advanced nursing practice and in the profession of
physician assistant and where possible to complement the rural
health initiative established in article sixteen, chapter
eighteen-b of this code: Provided, That financial need may be
considered when two or more applicants are equally qualified.
(b) Establishment of special account. -- There is herebyestablished a special revolving fund account under the board of
trustees in the state treasury to be known as the rural health
education loan fund which shall be used to carry out the purposes
of this section. The fund shall consist of: (1) Appropriations
provided by the Legislature; (2) penalties assessed to
individuals for failure to perform under the terms of a loan
contract as set forth under this section; (3) amounts provided by
health profession associations, hospitals, or other health care
provider organizations in this state, or by political
subdivisions of the state, under an agreement which requires the
recipient to practice his or her health profession in this state
or in the political subdivision providing the funds for a
predetermined period of time and in such capacity as set forth in
the agreement; and (4) 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
rural health education loan fund.
(c) Eligibility and forgiveness requirements for rural
health education loan. -- An individual is eligible for a rural
health education loan if the individual: (1) Is enrolled or
accepted for enrollment at any health professional school in this
state approved by the senior administrator: Provided, That the
individual has not yet received one of these degrees and is not
in default of any previous student loan; (2) meets the
established academic standards; and (3) 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 ashortage: Provided, however, That for every year that an
individual serves in an underserved area, an amount equal to the
average annual amount borrowed, up to twenty thousand dollars of
the loan granted will be forgiven.
Loans may be awarded by the senior administrator, with the
advice of the board of trustees and in accordance with any rules
adopted by the board of trustees, on a priority basis with the
first priority being a commitment to serve in an underserved area
of this state or in a health care specialty in which there is a
shortage of practitioners in the state as determined by the
health care policy commission with the advice of the office of
community and rural health services. A loan from the fund shall
be limited to the cost of education as determined by the
applicable health profession school up to twenty thousand dollars
per year.
At the end of each fiscal year, any individual who has
received a rural health education loan and who has completed the
education for which the loan was received shall submit to the
senior administrator 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 an outstanding amount of the loan equal to
the average annual amount of the loan received up to twenty
thousand dollars for every full twelve consecutive calendar
months of such service.
If an individual fails to perform the service, fails to
submit the required statement of service, or submits a fraudulentstatement, in addition to other penalties, the individual is in
breach of contract resulting in a penalty of two times the amount
of the outstanding balance of the loan granted. The loan balance
and assessed penalties shall be paid within twelve months from
the date defined in the loan agreement. In cases of undue
hardship, the board of trustees may extend the repayment period
but shall impose an interest charge equal to the prime lending
rate plus three percent to the balance remaining after the
initial twelve month repayment period.
A loan recipient who subsequently 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 is 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) Report by senior administrator. -- No later than ninety
days following the end of each fiscal ye?ar, the senior
administrator shall prepare and submit a report to the board of
trustees for inclusion in the statewide report card required
under section six, article two, chapter eighteen-b of this code
to be submitted to the legislative oversight commission on
education accountability established under section eleven,
article three-a, chapter twenty-nine-a of this code. The report
of the senior administrator shall include at a minimum the
following information: (1) The number of loans awarded; (2) the
total amount of the loans awarded; (3) the amount of any
unexpended moneys in the fund; and (4) the rate of default duringthe previous fiscal year on the repayment of previously awarded
loans.
(e) Promulgation of rules. -- The governing boards shall
promulgate rules necessary for the operation of this section.
§18C-3-3. Rural health scholars program.
The rural health scholars program is hereby created, which
program shall be administered by the senior administrator and
under the jurisdiction of the vice chancellor for health sciences
of the state university system in accordance with any policies
adopted by the board of trustees. The rural health scholars
program shall be funded with moneys from the rural health
education loan fund established pursuant to the provisions of
section one-a of this article.
The purpose of this program is to recognize outstanding
health profession students committed to practicing in rural areas
or primary care specialties. Students may be reimbursed up to
two thousand dollars per year for expenses incurred in working
with a rural practitioner or attending research conferences and
seminars regarding rural health care and primary care.
Reimbursements may be granted to support other activities the
vice chancellor and rural health advisory council consider
necessary or appropriate in promoting the recruitment and
retention of health profession students in rural areas or primary
care specialties.
CHAPTER 27. MENTALLY ILL PERSONS.
ARTICLE 2. MENTAL HEALTH FACILITIES.
§27-2-1. State hospitals and other facilities; transfer of
control and property from department of mental health to
department of health; civil service coverage.
The state hospitals heretofore established at Weston,
Huntington, Lakin and St. Marys shall be continued and known
respectively as the Weston hospital, Huntington hospital, Lakin
hospital, and Colin Anderson center. Said state hospitals and
centers shall be managed, directed and controlled by the
department of health and human resources: Provided, That the
secretary of health and human resources may sell, lease or
otherwise transfer to the private sector the ownership or
operation of the facility at Weston, or portion thereof, if said
sale, lease or transfer will allow the services rendered at no
less than fifty of the beds at said facility to become medicaid
reimbursable: Provided, however, That any such sale, lease or
transfer shall not be subject to certificate of need review or
any other provision of article two-d, chapter sixteen of this
code. Any person employed by the department of mental health who
on the effective date of this article is a classified civil
service employee shall, within the limits contained in section
two, article six, chapter twenty-nine of this code, remain in the
civil service system as a covered employee. The secretary of
health and human resources is hereby authorized to bring said
hospitals into structural compliance with appropriate fire and
health standards. All references in this code or elsewhere in
law to the "West Virginia training school" shall be taken and
construed to mean and refer to the "Colin Anderson Center".
The control of the property, records and financial and other
affairs of state mental hospitals and other state mental health
facilities is hereby transferred from the department of mentalhealth to the department of health and human resources. As the
chief executive officer, secretary of health and human resources
shall, in respect to the control and management of such state
hospitals and other state mental health facilities, perform the
same duties and functions as were heretofore exercised or
performed by the department of mental health. The title to all
property of such state hospitals and other state facilities is
hereby transferred to and vested in the department of health and
human resources.
Notwithstanding any other provisions of this code to the
contrary, whenever in this code there is a reference to the
department of mental health, it shall be construed to mean and
shall be a reference to the secretary of health and human
resources.
CHAPTER 29A. STATE ADMINISTRATIVE PROCEDURES ACT
ARTICLE 3C. HEALTH POLICY RULEMAKING.
§29A-3C-1. Definitions.
As used in this article:
(a) "Commission" means the health care policy commission as
defined in chapter sixteen-a of this code, any agent of the
commission who is granted rule-making authority under the
provision of that chapter, or any agency identified by the
commission or the legislative oversight committee with
rule-making authority pursuant to the provisions of this chapter.
(b) "Committee" means the legislative oversight committee on
health policy;
§29A-3C-2. Rules to be promulgated only in accordance with this
article.
In addition to other rule-making requirements imposed by law
and except to the extent specifically exempted by the provisions
of this chapter or other applicable law, every rule (including
any amendment of or rule to repeal any other rule) shall be
promulgated by the commission only in accordance with this
article and shall be and remain effective only to the extent that
it has been or is promulgated in accordance with this article.
§29A-3C-3. Limitations on authority to exercise rule-making
power.
(a) Except when, and to the extent, that this chapter or any
other provision of law now or hereafter made expressly exempts
the commission, or a particular grant of the rule-making power,
from the provisions of this article, every grant of rule-making
power to the commission heretofore provided, shall be construed
and applied to be effective only:
(1) If heretofore lawfully exercised in accordance with the
prior provisions of this chapter and the resulting rule has not
been revoked or invalidated by the provisions hereof or by the
commission; or
(2) If exercised in accordance with the provisions hereof.
(b) The commission shall not be deemed to have the power and
authority to promulgate a legislative rule without compliance
with this article unless: (1) The provision of this code,
heretofore or hereafter enacted, granting such power and
authority, expressly exempts its exercise from legislative rule-
making review prior to promulgation; or (2) the grant of such
power and authority is exempted from the application of this
chapter by the express provisions of this chapter. To the extentany such grant of power and authority, not so exempt, shall be
deemed to exceed the limits and provisions of this article, such
power and authority to promulgate legislative rules is hereby
revoked.
§29A-3C-4. Rules of procedure required.
In addition to other rule-making requirements imposed by
law:
(a) The commission shall adopt procedural rules governing
the formal and informal procedures prescribed or authorized by
this chapter. Procedural rules shall include rules of practice
before the commission, together with forms and instructions.
(b) To assist interested persons dealing with it, the
commission, shall so far as deemed practicable, supplement its
rules or regulations with descriptive statements of its
procedures.
§29A-3C-5. Filing of proposed procedural rules and interpretive
rules.
(a) When the commission proposes a procedural rule or an
interpretive rule, the agency shall file in the state register a
notice of its action, including the text of the rule as proposed.
(b) All proposed rules filed under subsection (a) of this
section shall have a fiscal note attached itemizing the cost of
implementing the rules as they relate to this state and to
persons affected by the rules and regulations. Such fiscal note
shall include all information included in a fiscal note for
either house of the Legislature and a statement of the economic
impact of the rule on the state or its residents. The objectives
of the rules shall be clearly and separately stated in the fiscalnote by the agency issuing the proposed rules. No procedural or
interpretive rule shall be void or voidable by virtue of
noncompliance with this subsection.
§29A-3C-6. Notice of proposed rulemaking.
When the commission proposes to promulgate a rule other than
an emergency rule it shall file in the state register a notice of
its action, including a text of the rule proposed, a fiscal note
as defined in subsection (b), section five of this article, and
any request for the submission of evidence to be presented on any
factual determinations or inquiries required by law to promulgate
such rule. If the commission is considering alternative draft
proposals it may include the text thereof.
The notice shall fix a date, time and place for the taking
of evidence for any findings and determinations which are a
condition precedent to promulgation of the proposed rule and
contain a general description of the issues to be decided. If no
findings and determinations are required as a condition precedent
to promulgation, the notice shall fix a date, time and place for
receipt of public comment on such proposed rule.
If findings and determinations are a condition precedent to
the promulgation of such rule, then an opportunity for public
comment on the merits of the rule shall be afforded after such
findings and determinations are made. In such event, notice of
the hearing, or of the period for receiving public comment on the
proposed rule shall be attached to and filed as a part of the
findings and determinations of the commission when filed in the
state register.
In any hearing for public comment on the merits of the rule,the commission may limit presentations to written material. The
time, date and place fixed in the notice shall constitute the
last opportunity to submit any written material relevant to any
hearing, all of which may be earlier submitted by filing with the
commission. After the public hearing or the close of the public
comment period, whichever is later, the commission shall not
permit the filing or receipt of, nor shall it consider, any
attempted ex parte communications directed to it in the form of
additional comment, prior to the submission of its final
commission-approved rule to the legislative oversight committee
on health policy pursuant to the provisions of section thirteen
of this article.
The commission may also, at its expense, cause to be
published as a Class I legal publication in every county of the
state, any notice required by this section.
Any citizen or other interested party may appear and be
heard at such hearings as are required by this section.
§29A-3C-7. Filing findings and determinations for rules in
state register; evidence deemed public record.
(a) Incident to fixing a date for public comment on a
proposed rule, the commission shall promulgate the findings and
determinations required as a condition precedent thereto, and
state fully and succinctly the reasons therefor and file such
findings and determinations in the state register. If the
commission amends the proposed rule as a result of the evidence
or comment presented pursuant to section six of this article,
such amendment shall be filed with a description of any changes
and statement listed for the amendment.
(b) The statement of reasons and a transcript of all
evidence and public comment received pursuant to notice are
public records and shall be carefully preserved by the commission
and be open for public inspection and copying for a period of not
less than five years from the date of the hearing.
§29A-3C-8. Notice of hearings.
Notices of hearings required by sections six and seven of
this article shall be filed in the state register not less than
thirty nor more than sixty days before the date of such hearing
or the last day specified therein for receiving written material.
Any hearing may be continued from time to time and place to place
by the commission which shall have the effect of extending the
last day for receipt of evidence or public comment. Notice of
such continuance shall be promptly filed thereafter in the state
register.
§29A-3C-9. Adoption of procedural and interpretive rules.
A procedural and interpretive rule, shall be considered by
the commission for adoption not later than six months after the
close of public comment and a notice of withdrawal or adoption
shall be filed in the state register within that period. Failure
to file such notice shall constitute withdrawal and the secretary
of state shall note such failure in the state register
immediately upon the expiration of the six-month period.
A procedural or interpretive rule may be amended by the
commission prior to final adoption without further hearing or
public comment. No such amendment may change the main purpose of
the rule. If the fiscal implications have changed since the rule
was proposed, a new fiscal note shall be attached to the noticeof filing. Upon adoption of the rule (including any such
amendment) the commission shall file the text of the adopted
procedural or interpretive rule with its notice of adoption in
the state register and the same shall be effective on the date
specified in the rule or thirty days after such filing, whichever
is later.
§29A-3C-10. Proposal of legislative rules.
When the commission proposes a legislative rule, other than
an emergency rule, it shall be deemed to be applying to the
Legislature for permission, to be granted by law, to promulgate
such rule as approved by the commission for submission to the
Legislature or as amended and authorized by the Legislature by
law.
When proposing a legislative rule, other than an emergency
rule, the commission shall first file in the state register a
notice of its proposal, including the text of the legislative
rule and including all materials required in the case of a
procedural or interpretive rule. The commission shall then
proceed as in the case of a procedural and interpretive rule to
the point of, but not including final adoption. In lieu of final
adoption, the commission shall approve the rule, including any
amendments, for submission to the Legislature and file such
notice of approval in the state register and with the legislative
oversight committee on health policy.
Approval of the rule by the commission for submission to the
Legislature shall be deemed to be approval for submission to the
Legislature only and not deemed to give full force and effect
until authority to do so is granted by law.
§29A-3C-11. Creation of a legislative oversight committee on
health policy.
(a) There is hereby created a joint commission of the
Legislature known as the legislative oversight committee on
health policy to review all legislative rules of the commission
and such other rules as the committee deems appropriate. The
committee shall be composed of six members of the Senate
appointed by the president of the Senate and six members of the
House of Delegates appointed by the speaker of the House of
Delegates. No more than five of the six members appointed by the
president of the Senate and the speaker of the House of
Delegates, respectively, may be members of the same political
party. In addition, the president of the Senate and the speaker
of the House of Delegates shall be ex officio nonvoting members
of the committee and shall designate the cochairs. At least one
of the Senate members and one of the House members shall be the
chairman of the committee on health and human resources of the
Senate and House, respectively, and at least one of the Senate
members and at least one of the House members shall be a member
of the committee on finance of the Senate and House,
respectively. The members shall serve until their successors
shall have been appointed as heretofore provided. Members of the
committee shall receive such compensation and expenses as
provided in article two-a, chapter four of this code. Such
expenses and all other expenses including those incurred in the
employment of legal, technical, investigative, clerical,
stenographic, advisory and other personnel shall be paid from an
appropriation to be made expressly for the legislative oversightcommittee on health policy, but if no such appropriation be made,
such expenses shall be paid from the appropriation under "Account
No. 103 for Joint Expenses", but no expense of any kind whatever
payable under said account for joint expenses shall be incurred
unless first approved by the joint committee on government and
finance. The committee shall meet at any time both during
sessions of the Legislature and in the interim.
(b) The committee may adopt such rules of procedure as it
considers necessary for the submission, presentation and
consideration of rules.
§29A-3C-12. Additional powers and duties; subpoena powers.
(a) In addition to the powers and duties conferred upon the
committee pursuant to the provisions of this article, the
committee shall make a continuing investigation, study and review
of the practices, policies and procedures of the commission and
of any and all matters related to health policy in the state and
shall make annual reports to the Legislature of the results of
such investigation, study and review.
(b) These reports shall describe and evaluate in a concise
manner:
(1) The major activities of the commission for the fiscal
year immediately past, including important policy decisions
reached on initiatives undertaken during that year, especially as
such activities, decisions and initiatives relate to the
implementation of: (A) Health care reform; (B) the objective of
improving the accessibility of appropriate health care in all
areas of this state; and
(C) the objective of improving the health status of the citizensof this state.
(2) Other information considered by the committee to be
important, including recommendations for statutory, fiscal or
other reform and reasons for such recommendations.
Further, these reports may specify in what manner said
practices, policies and procedures may or should be modified to
satisfy the goal of efficient and effective health care reform
and to improve the quality of health care available in this
state.
The committee may meet as often as may be necessary and
employ such professional, clerical and technical personnel as it
considers necessary to perform effectively the duties herein
prescribed.
(c) The committee shall conduct a study to determine whether
the bureaucracies of the state department of health and human
resources effectively and efficiently deliver services to the
citizens of this state. The committee may request assistance
from the legislative auditor to conduct this study.
(d) For purposes of carrying out its duties, the committee
is hereby empowered and authorized to examine witnesses and to
subpoena such persons and books, records, documents, papers or
any other tangible things as it believes should be examined to
make a complete investigation. All witnesses appearing before
the committee shall testify under oath or affirmation, and any
member of the committee may administer oaths or affirmations to
such witnesses. To compel the attendance of witnesses at such
hearings or the production of any books, records, documents,
papers or any other tangible thing, the committee is herebyempowered and authorized to issue subpoenas, signed by one of the
cochairs, in accordance with section five, article one, chapter
four of this code. Such subpoenas shall be served by any person
authorized by law to serve and execute legal process and service
shall be made without charge. Witnesses subpoenaed to attend
hearings shall be allowed the same mileage and per diem as is
allowed witnesses before any petit jury in this state.
If any person subpoenaed to appear at any hearing shall
refuse to appear or to answer inquiries there propounded, or
shall fail or refuse to produce books, records, documents, papers
or any other tangible thing within his control when the same are
demanded, the committee shall report the facts to the circuit
court of Kanawha county or any other court of competent
jurisdiction and such court may compel obedience to the subpoena
as though such subpoena had been issued by such court in the
first instance.
§29A-3C-13. Submission of legislative rules to the legislative
oversight committee on health policy.
(a) When the commission finally approves a proposed
legislative rule for submission to the Legislature, pursuant to
the provisions of section ten of this article, the commission
shall submit to the legislative oversight committee on health
policy at its offices or at a regular meeting of such committee
fifteen copies of: (1) The full text of the legislative rule as
finally approved by the commission, with new language underlined
and with language to be deleted from any existing rule stricken-
through but clearly legible; (2) a brief summary of the content
of the legislative rule and a description and a copy of anyexisting rule which the commission proposes to amend or repeal;
(3) a statement of the circumstances which require the rule; (4)
a fiscal note containing all information included in a fiscal
note for either house of the Legislature and a statement of the
economic impact of the rule on the state or its residents; and
(5) any other information which the committee may request or
which may be required by law.
(b) The committee shall review each proposed legislative
rule and, in its discretion, may hold public hearings thereon.
Such review shall include, but not be limited to, a determination
of:
(1) Whether the commission has exceeded the scope of its
statutory authority in approving the proposed legislative rule;
(2) Whether the proposed legislative rule is in conformity
with the legislative intent of the statute which the rule is
intended to implement, extend, apply, interpret or make specific;
(3) Whether the proposed legislative rule conflicts with any
other provision of this code or with any other rule adopted by
the same or a different agency;
(4) Whether the proposed legislative rule is necessary to
fully accomplish the objectives of the statute under which the
proposed rule was promulgated;
(5) Whether the proposed legislative rule is reasonable,
especially as it affects the convenience of the general public or
of persons particularly affected by it;
(6) Whether the proposed legislative rule could be made less
complex or more readily understandable by the general public; and
(7) Whether the proposed legislative rule was promulgated incompliance with the requirements of this article and with any
requirements imposed by any other provision of this code.
(c) After reviewing the legislative rule, the committee
shall recommend that the Legislature:
(1) Authorize the commission to promulgate the legislative
rule; or
(2) Authorize the commission to promulgate part of the
legislative rule; or
(3) Authorize the commission to promulgate the legislative
rule with certain amendments; or
(4) Recommend that the rule be withdrawn.
The committee shall file notice of its action in the state
register and with the commission proposing the rule: Provided,
That when the committee makes the recommendations of subdivision
(2), (3) or (4) of this subsection, the notice shall contain a
statement of the reasons for such recommendation.
(d) When the committee recommends that a rule be authorized,
in whole or in part, by the Legislature, the committee shall
instruct its staff or the office of legislative services to draft
a bill authorizing the commission to promulgate all or part of
the legislative rule, and incorporating any amendments the
committee desires. If the committee recommends that the rule not
be authorized, it shall include in its report a draft of a bill
authorizing promulgation of the rule together with a
recommendation. Any draft bill prepared under this section shall
contain a legislative finding that the rule is within the
legislative intent of the statute which the rule is intended to
implement, extend, apply or interpret and shall be available forany member of the Legislature to introduce to the Legislature.
§29A-3C-14. Submission of legislative rules to Legislature.
(a) No later than forty days before the sixtieth day of each
regular session of the Legislature, the cochairs of the
legislative oversight committee on health policy shall submit to
the clerk of the respective houses of the Legislature copies of
all proposed legislative rules which have been submitted to and
considered by the committee pursuant to the provisions of section
thirteen of this article and which have not been previously
submitted to the Legislature for study, together with the
recommendations of the committee with respect to such rules, a
statement of the reasons for any recommendation that a rule be
amended or withdrawn, and a statement that a bill authorizing the
legislative rule has been drafted by the staff of the committee
or by legislative services pursuant to section twelve of this
article. The cochairs of the committee may also submit such
rules at the direction of the committee at any time before or
during a special session in which consideration thereof may be
appropriate. The committee may withhold from its report any
proposed legislative rule which was submitted to the committee
fewer than two hundred ten days before the end of the regular
session. The clerk of each house shall submit the report to his
or her house at the commencement of the next session.
All bills introduced authorizing the promulgation of a rule
may be referred by the speaker of the House of Delegates and by
the president of the Senate to appropriate standing committees of
the respective houses for further consideration or the matters
may be otherwise dealt with as each house or its rules provide. The Legislature may by act authorize the commission to adopt a
legislative rule incorporating the entire rule, or may authorize
the commission to adopt a rule with any amendments which the
Legislature shall designate. The clerk of the house originating
such act shall forthwith file a copy of any bill of authorization
enacted with the secretary of state and with the commission and
the clerk of each house may prepare and file a synopsis of
legislative action during any session on any proposed rule
submitted to the house during such session for which authority to
promulgate was not by law provided during such session. In
acting upon the separate bills authorizing the promulgation of
rules, the Legislature may, by amendment or substitution, combine
the separate bills of authorization insofar as the various rules
authorized therein are proposed by agencies which are placed
under the administration of one of the single separate executive
departments identified under the provisions of section two,
article one, chapter five-f of this code, or the Legislature may
combine the separate bills of authorization by agency or agencies
within an executive department. In the case of rules proposed
for promulgation by an agency which is not administered by an
executive department pursuant to the provisions of article two of
said chapter, the separate bills of authorization for the
proposed rules of that agency may, by amendment or substitution,
be combined. The foregoing provisions relating to combining
separate bills of authorization according to department or agency
are not intended to restrict the permissible breadth of bills of
authorization and do not preclude the Legislature from otherwise
combining various bills of authorization which have a unity ofsubject matter. Any number of provisions may be included in a
bill of authorization, but the single object of the bill shall be
to authorize the promulgation of proposed legislative rules.
(b) If the Legislature fails during its regular session to
act upon all or part of any legislative rule which was submitted
to it by the legislative oversight committee on health policy
during such session, the commission may not thereafter issue any
rule or directive or take other action to implement such rule or
part thereof unless and until otherwise authorized to do so.
(c) Nothing herein shall be construed to prevent the
Legislature by law from authorizing or authorizing and directing
the commission to promulgate legislative rules not proposed by
the commission or upon which some procedure specified in this
chapter is not yet complete.
(d) Whenever the Legislature is convened by proclamation of
the governor, upon his or her own initiative or upon application
of the members of the Legislature, or whenever a regular session
of the Legislature is extended or convened by the vote or
petition of its members, the Legislature may by act enacted
during such extraordinary or extended session authorize, in whole
or in part, any legislative rule whether submitted to the
legislative oversight committee on health policy, or not, if
legislative action on such rule during such session is a lawful
order of business.
(e) Whenever a date is required by this section to be
computed in relation to the end of a regular session of the
Legislature, such date shall be computed without regard to any
extensions of such session occasioned solely by the proclamationof the governor.
(f) Whenever a date is required to be computed from or is
fixed by the first day of a regular session of the Legislature,
it shall be computed or fixed in the year one thousand nine
hundred eighty-four, and each fourth year thereafter without
regard to the second Wednesday of January of such years.
§29A-3C-15. Adoption of legislative rules; effective date.
(a) Except as the Legislature may by law otherwise provide,
within sixty days after the effective date of an act authorizing
promulgation of a legislative rule, the rule shall be promulgated
only in conformity with the provisions of law authorizing and
directing the promulgation of such rule. In the case of a rule
proposed by an agency which is administered by an executive
department pursuant to the provisions of article two, chapter
five-f of this code, the secretary of the department shall
promulgate the rule as authorized by the Legislature. In the
case of an agency which is not subject to administration by the
secretary of an executive department, the agency which proposed
the rule for promulgation shall promulgate the rule as authorized
by the Legislature.
(b) A legislative rule authorized by the Legislature shall
become effective thirty days after such filing in the state
register, or on the effective date fixed by the authorizing act
or if none is fixed by law, such later date not to exceed ninety
days, as is fixed by the commission.
(c) The secretary of state shall note in the state register
the effective date of an authorized and promulgated legislative
rule, and shall promptly publish the duly promulgated rule in acode of state rules maintained by his or her office.
§29A-3C-16. Withdrawal or modification of proposed rules.
(a) Any legislative rule proposed by the commission may be
withdrawn any time before passage of a law authorizing or
authorizing and directing its promulgation, but no such action
shall be construed to affect the validity, force or effect of a
law enacted authorizing or authorizing and directing the
promulgation of an authorized legislative rule or exercising
compliance with such law. The commission shall file a notice of
any such action in the state register.
(b) At any time before a proposed legislative rule has been
submitted by the legislative oversight committee on health policy
to the Legislature pursuant to the provisions of section fourteen
of this article, the commission may modify the proposed rule to
meet the objections of the committee. The commission shall file
in the state register a notice of its modifying action including
a copy of the modified rule, but shall not be required to comply
with any provisions of this article requiring opportunity for
public comment or taking of evidence with respect to such
modification. If a legislative rule has been withdrawn, modified
and then resubmitted to such committee, the rule shall be
considered to have been submitted to such committee on the date
of such resubmission.
§29A-3C-17. Emergency legislative rules; procedure for
promulgation; definition.
(a) The commission, and any agency identified pursuant to
section one of this article with authority to propose legislative
rules may, without hearing, find that an emergency existsrequiring that emergency rules be promulgated and promulgate the
same in accordance with this section. Such emergency rules,
together with a statement of the facts and circumstances
constituting the emergency, shall be filed in the state register
and a notice of such filing shall be published in the state
register. Such emergency rules shall become effective upon the
approval of the secretary of state in accordance with section
eighteen of this article or upon the forty-second day following
such filing, whichever occurs first, upon such filing. Such
emergency rules may adopt, amend or repeal any legislative rule,
but the circumstances constituting the emergency requiring such
adoption, amendment or repeal shall be stated with particularity
and be subject to de novo review by any court having original
jurisdiction of an action challenging their validity. Fourteen
copies of the rules and of the required statement shall be filed
forthwith with the secretary of state and one copy shall be filed
immediately with the legislative oversight committee on health
policy.
An emergency rule shall be effective for not more than
fifteen months and shall expire earlier if any of the following
occurs:
(1) The secretary of state, acting under the authority
provided for in section eighteen of this article, disapproves the
emergency rule because: (A) The emergency rule or an amendment
to the emergency rule exceeds the scope of the law authorizing or
directing the promulgation thereof; (B) an emergency does not
exist justifying the promulgation of the emergency rule; or (C)
the emergency rule was not promulgated in compliance with theprovisions of this section. An emergency rule may not be
disapproved pursuant to the authority granted by paragraphs (A)
or (B) of this subdivision on the basis that the secretary of
state disagrees with the underlying public policy established by
the Legislature in enacting the supporting legislation. An
emergency rule which would otherwise be approved as being
necessary to comply with a time limitation by this code or by a
federal statute or regulation may not be disapproved pursuant to
the authority granted by paragraphs (A) or (B) of this
subdivision on the basis that the commission has failed to file
the emergency rule prior to the date fixed by such time
limitation. When the supporting statute specifically directs an
agency to promulgate an emergency rule, or specifically finds
that an emergency exists and directs the promulgation of an
emergency rule, the emergency rule may not be disapproved
pursuant the authority granted by paragraph (B) of this
subdivision. An emergency rule may not be disapproved on the
basis that the Legislature has not specifically directed the
commission to promulgate the emergency rule, or has not
specifically found that an emergency exists and directed the
promulgation of an emergency rule.
(2) The commission has not previously filed and fails to
file a notice of public hearing on the proposed rule within
thirty days of the date the proposed rule was filed as an
emergency rule; in which case the emergency rule expires on the
thirty-first day.
(3) The commission has not previously filed and fails to
file the proposed rule with the legislative oversight committeeon health policy within ninety days of the date the proposed rule
was filed as an emergency rule; in which case the emergency rule
expires on the ninety-first day.
(4) The Legislature has authorized or directed promulgation
of an authorized legislative rule dealing with substantially the
same subject matter since such emergency rule was first
promulgated, and in which case the emergency rule expires on the
date the authorized rule is made effective.
(5) The Legislature has, by law, disapproved of such
emergency rule; in which case the emergency rule expires on the
date the law becomes effective.
(b) Any amendment to an emergency rule made by the
commission shall be filed in the state register and does not
constitute a new emergency rule for the purpose of acquiring
additional time or avoiding the expiration dates in subdivision
(1), (2), (3), (4) or (5), subsection (a) of this section.
(c) Once an emergency rule expires due to the conclusion of
fifteen months or due to the effect of subdivision (1), (2), (3)
(4) or (5), subsection (a) of this section, the commission may
not refile the same or similar rule as an emergency rule.
(d) Emergency legislative rules currently in effect under
other provisions of this chapter may be refiled under the
provisions of this section.
(e) The provision of this section shall not be used to avoid
or evade any provision of this article or any other provisions of
this code, including any provisions for legislative review and
approval of proposed rules. Any emergency rule promulgated for
any such purpose may be contested in a judicial proceeding beforea court of competent jurisdiction.
(f) The legislative oversight committee on health policy may
review any emergency rule to determine: (1) Whether the
emergency rule or an amendment to the emergency rule exceeds the
scope of the law authorizing or directing the promulgation
thereof; (2) whether there exists an emergency justifying the
promulgation of such emergency rule; and (3) whether the
emergency rule was promulgated in compliance with the
requirements and prohibitions contained in this section. The
committee may recommend to the commission, the Legislature, or
the secretary of state such action as it may deem proper.
(g) For the purposes of this section, an emergency exists
when the promulgation of an emergency rule is necessary: (1) For
the immediate preservation of the public peace, health, safety or
welfare; (2) to comply with a time limitation established by this
code or by a federal statute or regulation; (3) or to prevent
substantial harm to the public interest.
§29A-3C-18. Disapproval of emergency rules by the secretary of
state; judicial review.
(a) Upon the filing of an emergency rule by the commission
under the provisions of section seventeen of this article, the
secretary of state shall review such rule and, within forty-two
days of such filing, shall issue a decision as to whether or not
such emergency rule should be disapproved.
(b) The secretary of state shall disapprove an emergency
rule if he determines:
(1) That the commission has exceeded the scope of its
statutory authority in promulgating the emergency rule;
(2) That an emergency does not exist justifying the
promulgation of the rule; or
(3) That the rule was not promulgated in compliance with the
provisions of section seventeen of this article.
(c) If the secretary of state determines, based upon the
contents of the rule or the supporting information filed by the
commission, that the emergency rule should be disapproved, he or
she may disapprove such rule without further investigation,
notice or hearing. If, however, the secretary of state concludes
that the information submitted by the commission is insufficient
to allow a proper determination to be made as to whether the
emergency rule should be disapproved, he or she shall make
further investigation, including, but not limited to, requiring
the commission or other interested parties to submit additional
information or comment or fixing a date, time and place for the
taking of evidence on the issues involved in making a
determination under the provisions of this section.
(d) The determination of the secretary of state shall be
reviewable by the supreme court of appeals under its original
jurisdiction, based upon a petition for a writ of mandamus,
prohibition of certiorari, as appropriate. Such proceeding may
be instituted by:
(1) The commission which promulgated the emergency rule;
(2) A member of the Legislature; or
(3) Any person whose personal property interests will be
significantly affected by the approval or disapproval of the
emergency rule by the secretary of state.
§29A-3C-19. Legislative review of procedural rules,
interpretive rules and existing legislative rules.
The legislative oversight committee on health policy may
review any procedural rules, interpretive rules or existing
legislative rules and may make recommendations concerning such
rules to the Legislature, or to the commission or to both the
Legislature and the commission.
§29A-3C-20. Prior rules.
Any rule lawfully promulgated prior to the effective date of
this chapter shall remain in full force and effect until:
(1) Such rule is expressly made ineffective by the
provisions of this chapter; or
(2) Such rule should expire by reason of failure to refile
the same as provided in section five of article two, or expires
pursuant to its own terms and provisions lawfully made before the
effective date of this section; or
(3) Such rule is repealed by the lawful act of the
commission in conformity with this chapter; or
(4) Such rule is invalidated by an act of the Legislature or
the force and effect of another law.
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.
ARTICLE 1. GENERAL PROVISIONS APPLICABLE TO ALL STATE BOARDS OF
EXAMINATION OR REGISTRATION REFERRED TO IN THIS
CHAPTER.
§30-1-1. Application of article.
Unless otherwise specifically provided, every board of
examination or registration referred to in this chapter shall
conform to the requirements prescribed in the following sectionsof this article.
§30-1-1a. Legislative findings and declaration.
As a matter of public policy, the practice of the
professions referred to in this chapter is a privilege and not a
natural right of individuals. The fundamental purpose of
licensure and registration is to protect the public, and any
license, registration, certificate or other practice
authorization issued pursuant to this statute is a revocable
privilege.
§30-1-3. Officers; bond of secretary.
Every board shall elect annually from its members a
president and a secretary who shall hold their offices for one
year and until their successors are elected: Provided, That the
state board of law examiners, the state board of examiners for
nurses and the state board of dental examiners may each elect a
secretary from outside its membership. All officers shall
register annually with the governor, the commissioner of finance
and administration, the legislative auditor and the secretary of
state. The secretary shall execute a surety bond conditioned as
required by law, which bond shall be approved by the attorney
general as to form and by the auditor as to sufficiency, and,
when so approved, shall be filed and recorded in the office of
the secretary of state. The premium on said bond shall be
regarded a proper and necessary expense of the board.
§30-1-4a. Lay members of profession boards.
Notwithstanding any provisions of this code to the contrary,
the governor shall appoint at least one lay person to represent
the interest of the public on every professional licensing boardreferred to in this chapter. If the total number of members on
any of the boards after the appointment of one lay person is an
even number, one additional lay person shall be appointed. Said
lay members shall serve in addition to any other members
otherwise provided for by law or regulation. Such lay members
shall be of the age of eighteen years or over, of good moral
character, and competent to represent and safeguard the interests
of the public. The lay member is empowered to participate in and
vote on all transactions and business of the board, committee or
group to which he or she is appointed.
Any person whose addition to a board as a lay member under
the provisions of this section results in the addition of an odd
number of lay additions to the board, shall serve for a term
ending in an odd-numbered year on the date in that year on which
terms of the professional members expire; of such members first
appointed, each shall serve for a term ending on such date in the
year one thousand nine hundred seventy-nine, and the successor to
each such person shall serve for a term equal in length to the
terms of the other professional members of the board. Any person
whose addition to a board as a lay member under the provisions of
this section results in the addition of an even number of lay
additions to the board, shall serve for a term ending in an even-
numbered year on the date in that year on which terms of the
professional members expire; of such members first appointed,
each shall serve for a term ending on such date in the year one
thousand nine hundred seventy-eight, and the successor to each
such person shall serve for a term equal in length to the terms
of the other professional members of the board.
§30-1-4b. Limitation on number of terms a health professional
board member may serve.
No board member shall serve more than two consecutive terms
on any professional board.
§30-1-5. Meetings; quorum; powers relating to investigations;
duties.
Every board shall hold at least two meetings each year, at
the times and places as it may prescribe by rule, for the
examination of applicants who desire to practice their respective
professions or occupations in this state, and for the transaction
of any other business as may legally come before it. The board
may hold additional meetings as may be necessary, which shall be
called by the secretary at the direction of the president or upon
the written request of any three members. A majority of the
members of the board shall constitute a quorum for the
transaction of its business. The board shall have power to
compel the attendance of witnesses, to issue subpoenas, to
conduct investigations and hire an investigator, and to take
testimony and proof concerning any matter within its
jurisdiction, and for such purposes the president and secretary
of the board shall have the power to administer oaths.
Every board has a duty to, and shall in a timely manner,
investigate and resolve complaints made to it, and shall provide
the public access to the disposition of complaints made to it in
accordance with the provisions of chapter twenty-nine-b of this
code, and every board has a duty to report, and shall report in
a timely manner upon receiving notice thereof, violations of
individual practice acts within this chapter by an individual tothe board where that individual may be licensed.
§30-1-6. Application; renewal and single service fees;
examination; reexamination.
Every applicant for license or registration under the
provisions of this chapter shall apply therefor in writing to the
proper board and shall transmit with his or her application an
examination fee which the board is authorized to charge for an
examination or investigation into that applicant's qualifications
to practice.
Each board is hereby authorized to establish by rule a
deadline for application for examination which shall be no less
than ten nor more than ninety days prior to the date of the
examination.
Notwithstanding any other provision of this chapter to the
contrary, boards may set by rule fees relating to the licensing
or registering of individuals, which fees shall be sufficient to
enable the boards to carry out effectively their responsibilities
of licensure or registration and discipline of individuals
subject to their authority, but the fees shall not exceed two
hundred dollars per year.
§30-1-7. Contents of license or certificate of registration.
Every license or certificate of registration issued by such
board shall bear a serial number, the full name of the applicant,
the date of issuance, the seal of the board, and shall be signed
by its president and secretary or executive secretary. No
license or certificate of registration granted or issued under
the provisions of this chapter is assignable.
§30-1-8. Denial, suspension or revocation of a license or
registration; probation; proceedings; effect of suspension
or revocation; transcript; report; judicial review.
(a) Every board governed by this chapter is hereby
authorized to suspend, revoke or place on probation the license
of any person found guilty of a felony or crime or who has
engaged in conduct, practices or acts constituting negligence or
willful departure from accepted standards of professional
conduct. The words "felony" and "crime" mean a felony or crime
in violation of the laws of this state, the United States, or any
other state. Every board is hereby authorized to promulgate
rules in accordance with the provisions of chapter twenty-nine-a
of this code, to delineate conduct, practices or acts which in
the judgment of the board, constitute negligence or willful
departure from accepted standards of professional conduct or
which may render an individual unqualified for licensure or other
authorization to practice.
(b) Notwithstanding any other provision of law to the
contrary, no certificate, license, registration or authority
issued under the provisions of this chapter may be suspended or
revoked without a prior hearing before the board or court issuing
said certificate, license, registration or authority: Provided,
That this subsection shall not apply in cases where a board is
authorized to suspend or revoke a certificate, license,
registration or authority prior to a hearing if the individual's
continuation in practice constitutes an immediate danger to the
public.
(c) In all proceedings before a board or court for the
suspension or revocation of any certificate, license,registration or authority issued under the provisions of this
chapter, a statement of the charges against the holder thereof
and a notice of the time and place of hearing shall be served
upon such person as a notice is served under section one, article
two, chapter fifty-six of this code, at least thirty days prior
to the hearing, and he or she may appear with witnesses and be
heard in person, by counsel, or both. The board may take such
oral or written proof, for or against the accused, as it may deem
advisable. If upon such hearing the board finds that the charges
are true, it may suspend or revoke the certificate, license,
registration or authority, and such suspension or revocation
shall take from the person all rights and privileges acquired
thereby.
(d) Any person denied a license, certificate, registration
or authority who believes the denial was in violation of this
article or the article under which said license, certificate,
registration or authority is authorized shall be entitled to a
hearing on the action denying said license, certificate,
registration or authority. Hearings under this subsection shall
be in accordance with the provisions for hearings set forth in
subsection (c) of this section.
(e) A stenographic report of each proceeding on the denial,
suspension or revocation of a certificate, license, registration
or authority shall be made at the expense of the board and a
transcript thereof retained in its files. The board shall make
a written report of its findings, which shall constitute part of
the record.
(f) All proceedings under the provisions of this sectionshall be subject to review by the supreme court of appeals.
§30-1-10. Disposition of moneys; fines; annual audit.
The secretary of every such board shall receive and account
for all moneys derived by virtue of the provisions of this
chapter applicable to such board, and shall pay them into a
separate special fund of the state treasury established for each
board where the funds shall be used exclusively by each board for
purposes of administration and enforcement of its statute:
Provided, That when the special fund of any board accumulates in
excess of two times the annual budget of the board or ten
thousand dollars, whichever is greater, the amount in excess
shall be transferred by the state treasurer to the state general
revenue fund: Provided, however, That any and all fines levied
shall be deposited in the state treasury general revenue fund.
The state auditor shall audit the financial records of each board
annually, and shall report to each board and the Legislature as
to the audit.
§30-1-11. Compensation of members; expenses.
Each member of every such board shall receive an amount not
to exceed one hundred dollars for each day actually spent in
attending the sessions of the board, or of its committees, and in
necessary travel, which amount shall be set by the board by rule
and shall be reimbursed for all actual and necessary expenses
incurred in carrying out the provisions of this chapter
applicable to such board. The secretary shall receive such
salary as may be prescribed by the board, but in proceedings
relative to the fixing of his or her salary the secretary shall
have no vote. All authorized compensation and all expensescertified by the board as properly and necessarily incurred in
the discharge of its duties shall be paid out of the state
treasury, from funds appropriated for that purpose, on warrants
of the state auditor issued on requisitions signed by the
president and secretary of the board.
§30-1-12. Record of proceedings; register of applicants;
certified copies of records prima facie evidence; report to
governor and Legislature.
The secretary of every such board shall keep a record of its
proceedings and a register of all applicants for license or
registration, showing for each the date of his application, his
or her name, age, educational and other qualifications, place of
residence, whether an examination was required, whether the
applicant was rejected or a certificate of license or
registration granted, the date of such action, the license or
registration number, all renewals of such license or
registration, if required, and any suspension or revocation
thereof. The books and register of the board shall be open to
public inspection at all reasonable times, and such books and
register, or a copy of any part thereof, certified by the
secretary and attested by the seal of the board, shall be prima
facie evidence of all matters recorded therein.
On or before the first day of January of each year the board
shall submit to the governor and to the Legislature a report of
its transactions for the preceding year, together with an
itemized statement of its receipts and disbursements, a full list
of the names of all persons licensed or registered by it during
that period, and a list of any complaints filed regarding thoseso licensed or registered and action taken thereon, certified by
the president and the secretary. A copy of the report shall be
filed with the secretary of state.
§30-1-17. Civil and criminal immunity; 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 board or board member subject to the provisions of
this article acting without malice and without gross negligence
in making any report or other information available to a
governing board or peer review committee pursuant to law is
immune from civil or criminal liability.
(b) 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 or
bylaws 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 that profession or to any peer review organization is not
liable to any person for making a report if that report is made
without actual malice and in the reasonable belief that thereport is warranted by the facts known to him or her at the time.
(c) In the event a claim or cause of action is asserted
against 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 that member pursuant to the provisions of this
chapter, the rules of the applicable governing board for that
profession or the rules or bylaws of any peer review
organization, and the 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 is liable for all attorneys fees,
costs and expenses incurred by the reporting professional.
In the event a claim or cause of action is asserted against
a member of any profession included in this chapter by the
applicable governing board and the claim or cause of action is
subsequently dismissed, settled or adjudicated in favor of the
person defending against such claim, the applicable governing
board initiating the claim or action is liable for all attorneys
fees, costs and expenses incurred by the reporting professional.
(d) 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 the 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 the claim or cause of action, including
dismissal, settlement, court or jury verdict, or other means of
termination.
(e) No later than the first day of July, one thousand nine
hundred ninety-five, the health care policy commission
established by section four, article one, 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 the health care profession who fails to submit to the
applicable governing board the information required by this
section: Provided, That no governing board of any profession
covered by this chapter shall be precluded from applying
sanctions and penalties provided for in its practice act and
legislative rules adopted pursuant to the provisions of this
chapter against any member of the profession, with regard to
failing to submit to the governing board the information required
by this section: Provided, however, That any sanctions and
penalties applied by health profession boards may not be less
stringent than those contained in the legislative rules
promulgated by the health care policy commission under this
section.
(f) 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.
CHAPTER 33. INSURANCE.
ARTICLE 15. ACCIDENT AND SICKNESS INSURANCE.
§33-15-17. Individual health care investment accounts;
definitions; ownership; trustees; regulations.
(a) Any individual resident of this state may establish a
health care investment account to serve as self-insurance for the
payment of medical expenses. As used in this section "individual
health care investment account" means a trust for the payment of
medical expenses created or organized for the exclusive benefit
of an individual, his or her children and dependents, and his or
her beneficiaries. "Medical expenses" means amounts paid for
services for the diagnosis, cure, mitigation, treatment or
prevention of disease, or for the purpose of affecting any
structure or function of the body; for insurance premiums for
combined plans issued pursuant to this section; but excluding
expenses for cosmetic surgery as defined in Section 213 of the
Internal Revenue Code. Funds in an individual health care
investment account may not be used for payment of medical
expenses which any third-party payor is obligated to pay, except
for expenses of a medicaid-eligible individual covered under the
state's medicaid program. An individual health care investment
account established pursuant to this section shall be the
property of the individual establishing the account.
(b) The trustee for an individual health care investment
account shall be a bank or other entity qualified as a trustee of
individual retirement accounts under Section 408 of the Internal
Revenue Code. An insurer so qualified may act as trustee. The
assets of the trust shall not be commingled with other property
except in a common trust fund or common investment fund. Atrustee who is an insurer may hold the assets of individuals
insured under individual accident and sickness plans in a common
fund for the account of all individuals who have an interest in
the trust, if there is a separate accounting for the interest of
each individual or member. In the case of an insurer who acts as
trustee, account funds held by the trustee are subject to the
protections afforded by article twenty-six-a of this chapter.
(c) Any insurer issuing accident and sickness policies in
this state in accordance with the provisions of this article may
offer a benefit plan including deductibles or copayments combined
with individual self-insurance through the establishment of
individual health care investment accounts. A benefit plan
established pursuant to this subsection shall provide that
medical expenses included within deductible or copayment
provisions of the accident and sickness policy for the individual
or for his or her covered dependents and therefore not payable be
paid by the individual from the individual health care investment
account. A benefit plan may limit payment of medical expenses
within the plan deductible from the health care investment
account to expenses which are covered services under the policy.
(d) The commissioner shall issue reasonable regulations to
establish specific standards for individual health care
investment accounts and for plans in which a policy of insurance
is combined with self-insurance under an individual health care
investment account. Such standards shall be in addition to and
in accordance with the applicable laws of this state and may
cover, but shall not be limited to:
(1) Definitions of terms;
(2) An annual contribution minimum for individual health
care investment accounts;
(3) An annual contribution maximum for individual health
care investment accounts;
(4) Limitations upon an individual's access to or use of
individual health care investment account funds and circumstances
under which funds in the account may be dispersed;
(5) Circumstances under which a combined benefit plan
offered through an insurer may permit reduced contributions to
the individual health care investment account, which
circumstances may include the accruing of a specified account
balance; and
(6) Provisions relating to reporting payments for the
benefit of an individual from an individual health care
investment account for medical expenses to an insurer offering a
combined benefit plan.
(e) The tax commissioner is authorized to establish pursuant
to rules promulgated pursuant to chapter twenty-nine-a of this
code penalties for early or unauthorized withdrawals from
individual health care investment accounts, which penalties may
not exceed federal penalties for early or unauthorized
withdrawals from individual retirement accounts under the
Internal Revenue Code.
ARTICLE 16. GROUP ACCIDENT AND SICKNESS INSURANCE.
§33-16-12. Individual health care investment accounts;
definitions; ownership; contributions; trustees;
regulations.
(a) Any insurer issuing group accident and sickness policiesin this state, the public employees insurance agency and any
employer offering a health benefit plan pursuant to the
Employment Retirement Security Act of 1974 may offer a benefit
plan including deductibles or copayments combined with employee
self-insurance through the establishment of individual health
care investment accounts. As used in this section "individual
health care investment account" means a trust for the payment of
medical expenses created or organized for the exclusive benefit
of an individual, his or her dependents covered under a group
accident and sickness policy, and his or her beneficiaries.
"Medical expenses" means amounts paid for services for the
diagnosis, cure, mitigation, treatment or prevention of disease,
or for the purpose of affecting any structure or function of the
body; for insurance premiums for combined plans issued pursuant
to this section; but excluding expenses for cosmetic surgery as
defined in Section 213 of the Internal Revenue Code. Funds in an
individual health care investment account may not be used for
payment of medical expenses which any third-party payor is
obligated to pay, except for medical expenses of a medicaid-
eligible individual covered under the state's medicaid program.
A benefit plan established pursuant to this section shall provide
that medical expenses included within deductible or copayment
provisions of the group accident and sickness policy and
therefore not payable under the group policy for the employee or
for his or her covered dependents be paid by the employee from
the individual health care investment account. A benefit plan
may limit payment of medical expenses within the group plan
deductible from the health care investment account to expenseswhich are covered services under the group policy.
(b) An individual health care investment account established
pursuant to this section shall be the property of the employee
covered under the group accident and sickness plan.
Contributions to the plan shall be paid by the employer, the
employee or the employer and employee jointly.
(c) The trustee for an individual health care investment
account shall be a bank or other entity qualified as a trustee of
individual retirement accounts under Section 408 of the Internal
Revenue Code. An insurer so qualified may act as trustee. The
assets of the trust shall not be commingled with other property
except in a common trust fund or common investment fund. The
trustee may hold the assets of employees insured under a group
accident and sickness plan in a common fund for the account of
all individuals who have an interest in the trust, if there is a
separate accounting for the interest of each employee or member.
In the case of an insurer who acts as trustee, account funds held
by the trustee are subject to the protections afforded by article
twenty-six-a of this chapter.
(d) The commissioner shall issue reasonable regulations to
establish specific standards for plans in which a group policy is
combined with self-insurance under an individual health care
investment account. Such standards shall be in addition to and
in accordance with the applicable laws of this state and may
cover, but shall not be limited to:
(1) Definitions of terms;
(2) An annual contribution minimum for individual health
care investment accounts;
(3) An annual contribution maximum for individual health
care investment accounts;
(4) Limitations which a plan may impose upon an employee's
access to or use of individual health care investment account
funds and circumstances under which funds in the account may be
dispersed;
(5) Circumstances under which a plan may permit reduced
contributions to the individual health care investment account,
which circumstances may include the accruing of a specified
account balance; and
(6) Provisions relating to reporting payments for the
benefit of an employee from an individual health care investment
account for medical expenses to the group policy insurer.
(e) The tax commissioner is authorized to establish pursuant
to rules promulgated pursuant to chapter twenty-nine-a of this
code penalties for early or unauthorized withdrawals from
individual health care investment accounts, which penalties may
not exceed federal penalties for early or unauthorized
withdrawals from individual retirement accounts under the
Internal Revenue Code.