H. B. 2388
(By Delegates Jenkins, Mezzatesta and Spencer)
[Passed March 14, 1998; in effect ninety days from passage.]
AN ACT to amend chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto two new articles, designated article twenty-two-a
and article twenty-two-b, relating to the administration of
hearing loss testing for newborn infants; requiring certain
payment for testing; authorizing the director of health to
promulgate legislative rules to establish testing protocols
and reasonable fee schedules; and authorizing an advisory
committee; establishing the West Virginia birth score
program; establishing legislative findings and intent;
authorizing the division of health to establish and
implement a birth score program which identifies newborn
children at high risk for postneonatal mortality,
debilitating conditions and developmental delays and refers
those children to primary care physicians for subsequent
follow-up care; requiring hospitals, birthing facilities, attending physicians and other persons attending a birth to
require and ensure that a birth score is determined;
providing an exemption to program participation when it
conflicts with religious beliefs; authorizing the division
of health to provide necessary medical and other needed
referrals; and authorizing the division of health to propose
legislative rules, including penalties, to ensure
implementation of and compliance with the birth score
Be it enacted by the Legislature of West Virginia:
That chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto two new articles, designated article twenty-two-a
and article twenty-two-b, all to read as follows:
ARTICLE 22A. TESTING OF NEWBORN INFANTS FOR HEARING IMPAIRMENTS.
§16-22A-1. Testing required.
The physician or midwife in attendance at, or present
immediately after, a live birth shall perform, or cause to be
performed, a test for hearing loss in the infant unless the
infant's parents refuse under subsection (c), section three of
this article to have the testing performed. For any infant
delivered at a nonlicensed facility, including home births, the
physician or other health care provider shall inform the parents
of the need to obtain testing within the first month of life.
The director of the division of health shall prescribe the test or tests to be administered in accordance with this article.
§16-22A-2. Rule making authorized.
The director of the division of health shall propose
legislative rules for promulgation in accordance with the
provisions of article three, chapter twenty-nine-a of this code
to: (1) Establish a reasonable fee schedule for tests
administered pursuant to this article, which shall be used to
cover program costs not otherwise covered by federal grant funds
specifically secured for this purpose; (2) establish a cost- effective testing protocol based upon available technology and
national standards; (3) establish reporting and referral
requirements; and (4) establish a date for implementation of the
testing protocol, which shall not be later than the first day of
July, one thousand nine hundred ninety-nine.
§16-22A-3. Fees for testing; payment of same.
(a) Testing required under this article shall be a covered
benefit reimbursable by all health insurers except for health
insurers that offer only supplemental coverage policies or
policies which cover only specified diseases. All policies
issued pursuant to articles fifteen, sixteen, twenty-four and
twenty-five-a of chapter thirty-three of this code shall provide
coverage for the testing required under this article.
(b) The department of health and human resources shall pay
for testing required under this article when the newborn infant
is eligible for medical assistance under the provisions of section twelve, article five, chapter nine of this code.
(c) In the absence of a third-party payor, the parents of a
newborn infant shall be informed of the testing availability and
its costs and they may refuse to have the testing performed.
Charges for the testing required under this article shall be paid
by the hospital or other health care facility where the infant's
birth occurred: Provided, That nothing contained in this section
may be construed to preclude the hospital or other health care
facility from billing the infant's parents directly.
§16-22A-4. Hearing impairment testing advisory committee
(a) There is hereby established a West Virginia hearing
impairment testing advisory committee which shall advise the
director of the division of health regarding the protocol,
validity, monitoring and cost of testing procedures required
under this article. This committee is to meet four times per
year for the initial two years and on the call of the director
thereafter. The director shall serve as the chair and shall
appoint twelve members, one representing each of the following
(1) A representative of the health insurance industry;
(2) An otolaryngologist or otologist;
(3) An audiologist with experience in evaluating infants;
(4) A neonatologist;
(5) A pediatrician;
(6) A hospital administrator;
(7) A speech or language pathologist;
(8) A teacher or administrative representative from the West
Virginia school of the deaf;
(9) A parent of a hearing-impaired child;
(10) A representative from the office of early intervention
services within the department of health and human resources;
(11) A representative from the state department of
(12) A representative from the West Virginia commission for
the deaf and hard-of-hearing.
(b) Members of this advisory committee shall serve without
compensation. A majority of members constitutes a quorum for the
transaction of all business. Members shall serve for two-year
terms and may not serve for more than two consecutive terms.
ARTICLE 22B. BIRTH SCORE PROGRAM.
§16-22B-1. Legislative findings; intent; purpose.
(a)The Legislature hereby finds that until 1984, West
Virginia had one of the highest rates of postneonatal mortality
in the United States, which is defined as infants dying between
one month and one year of age. In the early 1980s, studies in
West Virginia showed that infants at greatest risk of dying
during the first year after birth had poor attendance at regular
physician visits and often received minimal health care. The
system for assessing infants at risk for postneonatal mortality, debilitating conditions and developmental delays was erratic and
many West Virginia physicians were poorly trained about risk
assessment. Uniform guidelines for at-risk infants to enter care
did not exist.
(b)In 1985, the birth scoring system, a cooperative
effort between the division of health and the West Virginia
university department of pediatrics was initiated. The goals of
the scoring system were: (1) To identify newborns at greatest
risk for death between one month and one year of age; and (2) to
link high risk infants with physicians for close follow-up during
the first year of life.
(c)Since its inception, the birth scoring system has
been expanded to identify and link infants at risk for
debilitating conditions and developmental delays with necessary
and available services. The program has been greatly successful
in identifying at-risk newborns and in obtaining appropriate
medical care for those infants.
(d)With the success of the birth scoring system at
reducing postneonatal mortality rates in the state, it is the
intention of the Legislature to establish the birth score system
as a universal, preventive program to be enacted at the delivery
of each newborn in the state. The purpose of this article is to
ensure that all of the state's birthing hospitals and facilities
adopt and implement this prevention program.
§16-22B-2. Birth score program established.
(a)The division of health within the department of
health and human resources is hereby authorized to establish and
implement a birth score program designed to combat postneonatal
mortality and to detect debilitating conditions and possible
developmental delays in newborn infants in the state.
(b)The purpose and goals of the birth score program are
to reduce the incidence of postneonatal mortality and disease by:
(1)Identifying newborns at greatest risk for death
between one month and one year of age; and
(2)Linking these infants with physicians for close
follow-up during the first year of life.
(c)The birth score of a newborn infant shall be
determined pursuant to the program established by the division of
health by trained hospital or birthing facility personnel
immediately after the infant is delivered.
§16-22B-3. Determination of birth score; referral to physician.
(a)Any hospital or birthing facility in which an infant
is born, any physician attending the infant, or any other person
attending the infant if not under the care of a physician, shall
require and ensure that a birth score is determined for the
newborn infant in order to assess the level of risk for
postneonatal mortality, debilitating conditions and developmental
delays: Provided, That no birth score shall be determined or
birth score program implemented if the parent or guardian objects
to the birth score program on the grounds that it conflicts with their religious tenets and practices. Any infant delivered at a
nonlicensed facility, including, but not limited to, home births,
shall have a birth score determined by the child's primary
physician within ten days of birth, subject to the exception set
forth in this subsection.
(b)When any infant receives a high risk birth score, as
determined by the program established by this article, the
parents shall be informed of the birth score and its
implications, and then linked with a local primary care physician
for a recommended six visits in the first six months of the
(c)The division of health, in cooperation with other
state departments and agencies, may provide necessary medical and
other referrals for services related to infants determined to be
at high risk for postneonatal mortality and other debilitating
conditions and developmental delays.
On or before the thirtieth day of June, one thousand nine
hundred ninety-eight, the division of health shall propose rules
for legislative approval in accordance with the provisions of
article three, chapter twenty-nine-a of this code as may be
needed to establish the program, ensure compliance and assess
penalties as needed to implement the provisions of this article.