Senate Bill No. 551

(By Senators Walker, Bailey, Schoonover, Sharpe, Minard,

Hunter, Snyder, Bowman, Mitchell, Ball, Love and Minear)

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[Introduced February 17, 1999; referred to the Committee on Health and Human Resources; and then to the Committee on Finance.]

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A BILL to amend chapter nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article four-d, relating to the West Virginia medicaid prescription drug prior authorization act; providing legislative findings; definitions; creating the West Virginia medicaid prior authorization advisory board; defining the purpose, composition, duties and powers of the board; and providing that the board make recommendations to the state medicaid agency.

Be it enacted by the Legislature of West Virginia:
That chapter nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article four-d, to read as follows:
ARTICLE 4D. MEDICAID PRESCRIPTION DRUG PRIOR AUTHORIZATION ACT.
§9-4D-1. Legislative findings.
The Legislature finds that it is in the best interest of the citizens of the state of West Virginia, as consumers of health care products and services, to provide a health care delivery system that is effective and efficient, recognizing that prescription drugs are a cost-effective component of total patient care as it relates to any and all health care programs administered by the West Virginia state medicaid agency.
The medicaid prescription drug study group, was established by Executive Order No. 16-97 of Governor Cecil H. Underwood on the first day of November, one thousand nine hundred ninety- seven, for the purpose of evaluating strategies and options available to provide cost efficient and clinically effective pharmaceutical services to beneficiaries of the West Virginia medicaid program. Consistent with the final report issued by the medicaid prescription drug study group, dated the twenty-ninth day of September, one thousand nine hundred ninety-eight, the Legislature finds that mandatory prior authorization of prescription drugs can impose severe hardships on both recipients and providers if not implemented with due consideration of alternatives and development of procedures to alleviate any potential hardships. Before implementation, of any prior authorization programs, the state medicaid agency should: Review all alternatives, including education of patients and providers; provide for input by all affected parties; adopt steps to mitigate the impact on beneficiaries currently receiving the targeted medications; ensure adequate notice to beneficiaries and providers to allow for a smooth transition; and try other interventions, including education of patients and providers, before implementing prior authorization.
The Legislature further finds that in order for prior authorization requirements of prescription drugs to work effectively and efficiently, the safeguards and oversight set forth in this article must be established.
§9-4D-2. Definitions.
(a) "Board" means the medicaid drug prior authorization advisory board established pursuant to this article.
(b) "Commissioner" means the individual designated by the department of health and human resources to be in charge of the state medicaid agency.
(c) "Community pharmacist" is a pharmacist who practices in a free-standing store not located in a larger complex such as a mall.
(d) "Department" means the department of health and human resources.
(e) "Drug" means a drug, as defined in subsection (v), section one-b, article five, chapter thirty of this code, which has been prescribed by a duly authorized health care professional.
(f) "Drug utilization review" means both retrospective and prospective drug utilization review. Such programs are designed to educate physicians and pharmacists and thereby ensure that prescriptions are: (1) Appropriate; (2) medically necessary; and (3) not likely to have adverse medical results. Prospective drug utilization review screens for such problems as therapeutic duplication, drug-disease contraindications, drug-drug interactions, incorrect dosage or duration of treatment, drug allergy interactions and clinical abuse/misuse. Retrospective drug utilization review is the periodic examination of medicaid pharmacy claims data and other information sources to find patterns of fraud, abuse, gross overuse, or inappropriate or medically unnecessary care on part of physicians, pharmacists and patients.
(g) "Manufacturer" means the person who performs the operations necessary to produce a drug, as set forth in the United States food and drug administration's regulation, currently at 21 Code of Federal Regulations 201.1.
(h) "Prescription drug" means a drug, as defined in subsection (v), section one-b, article five, chapter thirty of this code, which has been prescribed by a duly authorized health care professional.
(i) "Prior authorization" means the administrative process of obtaining approval from a designated authority as to the appropriateness of a service or medication in order for the service or medication to be dispensed or reimbursed.
(j) "State medicaid agency" means the division of the department of health and human resources that is the federally designated single state agency charged with administration and supervision of the state medicaid program.
(k) "State plan" means the medicaid state plan as proposed by the state medicaid agency and approved by the federal agency authorized to approve such plans.
§9-4D-3. Medicaid drug prior authorization advisory board created; composition, appointment, term, compensation and immunity.
(a) There is hereby created a medicaid prior authorization advisory board, comprised of ten members to be appointed by the commissioner. Five members shall be physicians, at least three of whom shall care for a significant number of medicaid patients; three shall be pharmacists, at least two of whom shall be community pharmacists who serve a significant number of medicaid patients; one member shall be a representative of the pharmaceutical manufacturers; and one member shall be a medicaid beneficiary. All members shall be residents of the state of West Virginia. When making appointments to the board, with the exception of the medicaid beneficiary, all appointments shall be made from nominations made by the West Virginia medical association, West Virginia academy of family practice physicians, the West Virginia pharmacists association, West Virginia osteopathic medicine society and the pharmaceutical research and manufacturers of America.
The commissioner, or his or her designee, shall be an ex officio member of the board without vote and shall serve as secretary of the board without additional compensation.
The members of the board, shall be appointed for overlapping terms of four years, except that the original appointments shall be for terms of one, two, three and four years, respectively. Any member whose term expires may be reappointed by the commissioner.
Each member of the committee shall receive reimbursement for reasonable and necessary travel expenses for each day actually served in attendance at meetings of the council in accordance with the state's travel regulations. Requisitions for the expenses shall be accompanied by an itemized statement, which shall be filed with the auditor and preserved as a public record.
From its membership, the board shall elect a physician as a chairman of the board.
(b) The members of the board shall be immune, individually and jointly, from civil liability for any act, decision, or omission done or made in performance of their duties pursuant to this article while serving as a member of such board, provided that such act, decision, or omission is not done or made in bad faith or with malicious intent.
§9-4D-4. Board meetings, duties and powers generally.
(a) The board shall establish its own procedural rules and meet at such times and places as are designated by the secretary or at the written request of two board members, but in no event shall the board meet less than four times per year. A quorum for action by the board consists of six members. Except as set forth in this article, all proceedings of the board are subject to the West Virginia open government proceedings act.
(b) In addition to other powers and duties expressly set forth elsewhere in this article, the board shall make recommendations to the state medicaid agency regarding drugs that are presently subject to prior authorization and drugs or drug categories to be subject to prior authorization and prior authorization requirements for prescription drug coverage under the state plan, as well as any subsequent amendments to or revisions of such prior authorization requirements from time to time.
The state medicaid agency may accept or reject such recommendations, in whole or in part, and may amend or add to such recommendations, except that the state medicaid agency may not add to the recommendation of drugs and categories of drugs to be subject to prior authorization. Any drug identified by a state agency for possible inclusion for prior authorization shall likewise be received by the state medicaid agency and dealt with in accordance with the same process provided for any other drug.
(c) In formulating its recommendations to the state medicaid agency, the board shall conduct public hearings prior to making such recommendations to the state medicaid agency. The state medicaid agency shall give thirty days' written notice by mail of the time and place of its hearings and meetings to any manufacturer whose product is being reviewed by the board and to any interested persons who request the board in writing that they be informed of such hearings and meetings. Such persons shall be afforded a reasonable opportunity to be heard and present information. Thirty days prior to the public hearing, the board shall publish a notice in the Saturday Charleston newspapers and the state register. The notice shall identify the specific subject of the public hearing and the time date and place of the hearing.
§9-4D-5. Prior authorization of prescription drug products.
(a) The board shall review prescription drug products to recommend for prior authorization under the state plan in accordance with this article and regulations promulgated by the state medicaid agency in accordance with the provisions of chapter twenty-nine-a of this code. Such review may be initiated by the board itself, or by written request of the state medicaid agency. The board shall complete its recommendations to the state medicaid agency within no more than six months from receipt of any such request. Before recommending that a drug or category of drugs be subject to prior authorization, the state medicaid agency shall review all other alternatives; provided for input from beneficiaries; and try other interventions, such as provider and patient education.
In formulating its recommendations to the state medicaid agency the board shall consider the potential impact on patient care and the potential fiscal impact of prior authorization on pharmacy, physician, hospitalization and outpatient costs. Any proposed regulation making a drug or category of drugs subject to prior authorization shall be accompanied by a statement of the estimated impact of such action on pharmacy, physician, hospitalization and outpatient costs.
(b) The board may not recommend that a new drug or category be subject to prior authorization, until twelve months of drug utilization review data is available to review.
(c) The committee shall review immediately any prescription drug which became subject to prior authorization on or after the first day of January, one thousand nine hundred ninety-eight. The prescription drug shall be available without prior authorization until this review is completed.
(d) Except as part of its initial action to review prescription drugs subject to prior authorization on or after the first day of January, one thousand nine hundred ninety-eight, the board may not review any drug for which it has recommended or the state medicaid agency has required prior authorization within the previous twelve months, unless new or previously unavailable relevant and objective information is presented.
(c) After receiving a recommendation from the board that a drug is recommended for prior authorization, the bureau shall notify the manufacturer of any such drug that the same has been so recommended. Such notice shall inform the manufacturer of the results of the clinical findings and any pertinent evidence from the evaluation conducted by the board that demonstrates prescribing or dispensing patterns indicative of abuse, misuse or inappropriate use. Such notice shall further inform the manufacturer that it may, within one hundred eighty days of the date of the notice, appear before the board to propose a plan of drug utilization instruction to be implemented to instruct prescribers and pharmacists in criteria and standards designed to identify the potential abuse, misuse or inappropriate use of the drug and to prevent such abuse, misuse, or inappropriate use. Development of an acceptable plan for educational intervention of patients and providers shall stay the requirement of prior authorization of such drug. In the event that a plan is not submitted by the affected manufacturer within such one hundred eighty days, or a plan is submitted but found not to be acceptable, the drug recommended for prior authorization may be so required with the approval for payment granted only when the drug is prescribed for a medically accepted indication, as required by section 1927 of the Social Security Act.
§9-4D-6. System performance requirements.
(a) From and after the effective date of this article, the state medicaid agency shall not subject prescription drugs or category of drugs to prior authorization requirements until:
(1) The state medicaid agency has in place administrative systems and protocols that accept telephonic and facsimile requests for authorization from all health care providers qualified to prescribe or dispense prescription drugs, on a continuous basis, twenty-four hours a day, seven days a week, with staff and system resources sufficient to provide responses to requests for prior authorization within four hours of the submission of the requests.
Further, if the state medicaid agency fails to provide a response to a request for prior authorization within the time limits established, the health care provider or person qualified to dispense prescription drugs making the request, shall be authorized to dispense or provide the patient with a supply of medication for which the request was made sufficient to cover the patient's need for a seventy-two hour period, or such lesser period of time as prescribed by the health care provider, and the bureau shall cover the cost of such a drug or medication, and further, if no response is received within twenty-four hours of the time so made, the prescription shall be deemed to have been authorized as written by the prescriber.
The state medicaid agency shall provide physicians with an appeals process which is transparent, open, and offers a timely response to any decision which results in the denial of care for patients.
The state medicaid agency shall provide patients with access to a grievance appeals process.
§9-4D-7. Avoidance of interfering with the practice of medicine.
Except as hereinafter provided, the state medicaid agency may not use a system of prior authorization for the purchase of drugs to restrict payment of a drug prescribed for a medically accepted indication, as that term is defined under federal law, by requiring the prescribing physician to alter the prescribed therapy or demonstrate use of any treatment other than that which, in the said physician's professional judgment, is what the patient needs or requires.
§9-4D-8. Confidential proprietary information.
Confidential proprietary information identified as such by a manufacturer or supplier in writing in advance and furnished to the board or the bureau, may not be subject to the disclosure requirements of the West Virginia Open Government Proceedings Act. The department shall promulgate rules and regulations in accordance with the provisions of chapter twenty-nine-a of this code to establish the manner by which such confidential information shall be protected.
§9-4D-9. Medical practice concerns and minimization of patent burdens.
The board, in cooperation with physicians, other prescribers, pharmacists, patients and drug manufacturers, shall observe a policy of avoidance of prior authorization, except to address problems of abuse, misuse or inappropriate use. The board shall periodically recommend to the state medicaid agency that it remove drugs from the prior authorization category consistent with current data regarding and dispensing patterns as annually evaluated. The board shall adopt policies to ensure that the administrative cost and burden of complying with prior authorization requirements is not imposed on health care providers who treat patients for a particular disease or condition that involves the utilization of a drug that is subject to prior authorization. In no event shall the majority of drugs in a particular therapeutic category or subcategory be subject to prior authorization absent compelling evidence of systematic and consistent abuse, misuse or inappropriate use.
The state medicaid agency shall further propose rules for legislative promulgation, pursuant to chapter twenty-nine-a of this code, that provide for the timely approval of the dispensing and payment for any drug required to have prior authorization. The proposed rules shall contain provisions for the prompt review of any decision to withhold dispensing or payment, to avoid delaying care ordered by a patient's health care provider as medically necessary.
§9-4D-10. Annual report to joint commission; legislative oversight.
(a) The board shall report annually to the legislative oversight commission on health and human resources accountability regarding its recommendations for prior authorization of drug products.
(b) The medicaid prior authorization advisory board shall annually submit a report to the Legislature detailing information for the preceding year as follows:
(1) The number of requests received during the year for prior authorization by drug;
(2) A listing of the drugs and drug categories that were placed under prior authorization along with a written statement of the rationale for the prior authorization of the drug;
(3) The average administrative cost to the department for each such call, factoring, among other things, staff salaries and benefits, telephone service, management information systems, consulting fees, office expenses and overhead;
(4) The total administrative cost to the board and relevant state agencies for maintaining a prior authorization program;
(5) The approximate time spent by health care providers in complying with prior authorization requirements, including time spent on hold and attempting to secure an open phone line;
(6) The number of prior authorization requests that resulted in an approval and permitting the dispensing of the prescription as written;
(7) The number of negative responses to requests for prior authorization that were appealed, the number of appeals that resulted in a reversal of the negative response and the number of appeals that sustained the negative response;
(8) The number and nature of complaints lodged by consumer; and
(9) The number and nature of complaints lodged by health care providers, including pharmacists.




NOTE: The purpose of this bill is to create the West Virginia medicaid prescription drug prior authorization act; provide legislative findings; provide definitions; create the West Virginia medicaid prior authorization advisory board; define the purpose, composition, duties and powers of the board; and provide that the board make recommendations to the state medicaid agency.

This article is new; therefore, strike-throughs and underscoring have been omitted.