Senate Bill No. 25
(By Senators Boley, Hunter, Minear, Deem, White and Scott)
[Originating in the Committee on Banking and Insurance;
reported March 6, 1998.]
A BILL to amend chapter thirty-three of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
by adding thereto a new article, designated article forty- two, relating to women's access to health care; defining
terms; legislative findings and purpose; requiring providers
of health benefits policies to provide coverage for direct
access to women's health care providers and specified
services without referral or additional deductibles or
copayments; disclosure of female enrollees' rights to direct
access to certain health care services; disclosure of
certain exclusions from coverage; disclosure of right to
limit coverage to medically necessary and appropriate
services; prohibiting certain cost-sharing; permitting
limitations on the number of women's health care providers
in a network under certain conditions; prohibiting partial-birth abortions; definition of terms; establishing criminal
penalties; creating exceptions; and short title.
Be it enacted by the Legislature of West Virginia:
That chapter thirty-three of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article forty-two, to
read as follows:
ARTICLE 42. WOMEN'S ACCESS TO HEALTH CARE ACT.
§33-42-1. Short title.
This article shall be known and may be cited as the "Women's
Access To Health Care Act".
§33-42-2. General provisions and definitions.
For purposes of this article:
(1) "Women's health care provider" means an
obstetrician/gynecologist or certified nurse-midwife practicing
within the lawful scope of a health care practice that is devoted
to providing health care services to women throughout their
(2) "Health benefit policy" means any individual or group
plan, policy or contract for health care services issued,
delivered, issued for delivery or renewed in this state by a
health care corporation, health maintenance organization,
accident and sickness insurer, fraternal benefit society, nonprofit hospital service corporation, nonprofit medical service
corporation or similar entity.
(3) "Partial birth abortion" means an abortion in which the
person performing the abortion partially vaginally delivers a
living fetus before killing the fetus and completing the
(4) "Physician performing a partial birth abortion" means a
doctor of medicine or osteopathy legally authorized to practice
medicine and surgery in West Virginia, or any other individual
who is legally authorized by the state to perform abortions:
Provided, That any individual who is not a physician or not
otherwise legally authorized by the state to perform abortions,
but who nevertheless directly performs a partial-birth abortion,
is subject to the provisions of this article.
(5) "Vaginally delivers a living fetus before killing the
fetus" means deliberately and intentionally delivering into the
vagina a living fetus, or a substantial portion thereof, for the
purpose of performing a procedure that physician knows will kill
the fetus, and kills the fetus.
§33-42-3. Legislative findings and purpose.
The Legislature of West Virginia hereby finds and declares
that delivery of health care services for women has been proven
to be variable from that of men and enacts this article for the
purpose of providing for the improved delivery and accessibility of health care services to women in this state.
§33-42-4. Required coverage.
No health benefits policy that covers hospital, medical or
surgical expenses may require as a condition to the coverage of
the services of a women's health care provider that an enrollee,
subscriber or insured first obtain a referral from another
physician. Services covered by this section are limited to those
services specified in the published recommendation of the
accreditation council for graduate medical education for training
as an obstetrician/gynecologist for physicians or the American
college of nurse-midwives' core competencies for nurse-midwives.
These services include diagnosis, treatment and referral.
§33-42-5. Required disclosure.
Every health benefits policy that is issued, delivered,
issued for delivery or renewed in this state on or after the
first day of July, one thousand nine hundred ninety-eight, shall
disclose in writing to enrollees, subscribers and insureds, in
clear and accurate language, the female enrollee's right of
direct access to a women's health care provider of her choice.
The information required to be disclosed shall include, at a
minimum, any specific women's health care services that are
excluded from coverage and the health benefits policy's right to
limit coverage to medically necessary and appropriate women's
health care services.
§33-42-6. Certain cost-sharing prohibited.
No health benefits policy may impose additional copayments
or deductibles for female enrollees' direct access to in-network,
participating women's health care providers unless the same
additional cost-sharing is imposed for other types of health care
services not delineated in this article.
§33-42-7. Limitation on number of women's health care providers.
A health benefits policy may limit the number of women's
health care providers in a network: Provided, That a sufficient
number of providers are available to serve a defined population
or geographic service area so that female enrollees will have
direct and timely access to women's health care providers.
§33-42-8. Partial birth abortions prohibited; criminal
penalties; exceptions; hearings by state board of medicine.
(a) Any physician who knowingly performs a partial-birth
abortion and thereby kills a human fetus is guilty of a felony
and shall be fined not less than ten thousand dollars, nor more
than fifty thousand dollars, or imprisoned not more than two
years, or both fined and imprisoned. This section does not apply
to a partial-birth that is necessary to save the life of a mother
whose life is endangered by a physical disorder, illness or
(b) A person charged pursuant to this section may seek a hearing before the West Virginia board of medicine on the issue
of whether the physician's act was necessary to save the life of
a mother whose life is endangered by a physical disorder, illness
or injury. The findings of the board of medicine are admissible
on this issue at the trial of the physician. Upon a motion by
the defendant, the court shall delay the beginning of trial for
not more than thirty days to permit the board of medicine hearing
to take place.
§33-42-9. Civil action by wronged parties permitted.
(a) The father, if married to the mother at the time she
receives a partial-birth abortion performed in violation of this
article, and if the mother has not attained the age of eighteen
at the time of the abortion, the maternal grandparents of the
fetus, may in a civil action obtain appropriate relief, unless
the pregnancy resulted from the plaintiff's criminal conduct or
the plaintiff consented to the abortion.
(b) Relief granted pursuant to this section includes:
(1) Monetary damages for all injuries, psychological and
physical, caused by the violation of this article; and
(2) Statutory damages equal to three times the cost of the