Senate Bill No. 25
(Senators Boley, Hunter, Minear, Deem,
White and Scott, original sponsors)
[Passed March 14, 1998; in effect ninety days from passage.]
AN ACT 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- three, 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-three, to
read as follows:
ARTICLE 43. WOMEN'S ACCESS TO HEALTH CARE ACT.
§33-43-1. Short title.
This article shall be known and may be cited as the "Women's
Access To Health Care Act".
§33-43-2. Legislative findings and purpose.
The Legislature finds and declares that adequate delivery of
health care services to women requires direct access to primary
and preventative obstetrical and gynecological services, which
services may be provided as "well woman examinations", direct
access without prior authorization to prenatal and obstetrical
services for pregnant women and access to certain services
essential to the physical and psychological integrity of women.
For purposes of this article:
(1) "Advanced nurse practitioner" means a certified nurse-midwife, or an advanced nurse practitioner certified to practice
in family practice, women's health (ob/gyn), or primary care
adult, geriatric or pediatric practice, practicing within the
lawful scope of that provider's practice.
(2) "Health benefits 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, when the policy or plan covers
hospital, medical or surgical expenses.
(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 the physician or person
delivering the living fetus knows will kill the fetus, and kills
(6) "Women's health care provider" means an
obstetrician/gynecologist, advanced nurse practitioner certified
to practice in women's health (ob/gyn), certified nurse-midwife
or physician assistant-midwife practicing within the lawful scope
of that provider's practice.
§33-43-4. Limitations on conditions of coverage.
No health benefits policy may require as a condition to the
coverage of basic primary and preventative obstetrical and
gynecological services that a woman first obtain a referral from
a primary care physician: Provided, That for a health maintenance
organization authorized under article twenty-five-a of this
chapter, direct access, at least annually, to a women's health
care provider for purposes of a well woman examination shall
satisfy the foregoing requirement. No health benefits policy may
require as a condition to the coverage of prenatal or obstetrical
care that a woman first obtain a referral for those services by
a primary care physician. No health benefits policy providing
coverage for surgical services in a hospital inpatient or outpatient setting may deny coverage for: (1) Reconstruction of
the breast following mastectomy; or (2) reconstructive or
cosmetic surgery required as a result of an injury caused by an
act of family violence as defined in section three, article two- a, chapter forty-eight of this code, when the person inflicting
the injury was convicted of a felony, a lesser included
misdemeanor offense, or a charge of domestic battery for
inflicting the injury.
§33-43-5. 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.
§33-43-6. 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.
§33-43-7. 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.
§33-43-8. Partial-birth abortions prohibited; criminal
penalties; exceptions; hearings by state board of medicine.
(a) Any person 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 abortion that is necessary to save the life of
a mother when her life is endangered by a physical disorder,
illness or injury.
(b) A physician 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 pursuant to the provisions of subsection (a) of this
section. 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
(c) No woman may be prosecuted under the provisions of this
section for having a partial-birth abortion, nor may she be
prosecuted for conspiring to violate the provisions of this