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The 2007 Legislative Session is nearing its end, the last day is Saturday, March 10. As we enter the final week of the legislative session, only 385 of the 2071 bills introduced (18%) survived the cross-over deadline on Wednesday and will be considered by the opposite chamber. Key policy issues to be debated during the final days include table games, pay raises, and tax reforms. A number of healthcare bills are still "alive" at this point. This newsletter provides an update on all the WVSMA policy issues. |
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This bill clarifies that all drugs, durable medical equipment, mobility enhancing equipment and prosthetic devices purchased by physicians, clinics or hospitals will no longer be subject to the 6% sales tax. This bill essentially puts to rest the debate over whether physicians and hospitals are subject to the sales tax and how it is to be implemented. Recently there have been a number of law suits brought by hospitals and other providers claiming they should not be subject to the sales tax. Pharmaceuticals are not subject to tax if purchased and sold by retail pharmacies. The WVSMA has been working with the Tax Commission and the Governor's office on this issue for the past two years along with the WV Hospital Association, to attempt to reach agreement on a piece of legislation to repeal the tax. The Governor not only has come around to support the plan but also had the legislation introduced by his request.
The bill passed the House on February 14 and was referred to the Senate Finance Committee where it sits currently. |
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This is the rule that was filed in the summer by the Health Care Authority upon the request of the Hospital Association. The rule tightens up all aspects of the certificate of need law impacting private physician practices. It consists of a definition of diagnostic center and creates six "tests" that determine if a physician office or clinic must apply for a CON to provide laboratory or imaging services to their patients. The rule also establishes a list of items that require automatic CON approval. WVSMA has been working to make significant improvements in a couple areas of the rule and has come up against strong opposition from the Hospital Association. The WVSMA has been lobbying to get two amendments to the rule - delete the prohibition regarding physician to physician referral for diagnostic services and delete the automatic CON on the purchase of CT scanners.
Currently the WVSMA is still in negotiations with the Health Care Authority, Hospital Associaiton and the Governor's office regarding modifications to the referral language in the rule. The rule is now bundled in SB 278 which consists of 19 other rules filed by the DHHR. It has passed the Senate and is currently in the House Judiciary Committee.
Recap: The Senate Health Committee took up their version of the rule (SB 266) a couple weeks ago. After an hour and a half discussion where representatives of the WV State Medical Association, the Health Care Authority and the WV Hospital Association testified before the Committee, the rule passed out without either of the amendments requested by the WVSMA.
Senators Ron Stollings, MD (D, Boone) and Evan Jenkins (D, Cabell) both did an excellent job speaking from the perspective of the WVSMA and raising concerns generally of the medical community. Dr. Austin Wallace, WVSMA President-Elect testified before the Committee and also very eloquently argued the issue. Senator Stollings offered an amendment to remove CT Scanners from the list of CON reviewable services. Senator Brooks McCabe (D, Kanawha) and Senator Dan Foster, MD (D, Kanawha) both spoke against the amendment and at the end of the day, the support was not there among the other Senators for the amendment. It failed on a voice vote. The second amendment was not offered after the first loss. The Senate bill was second referenced to the Senate Judiciary Committee.
The next day, Feb 14, over in the House the House Health Committee took up their version of the bill in an evening meeting. Again, the WVSMA attempted to amend the bill. Delegates Marshall Long, DO and Margaret Anne Staggers, MD both are members of the House Health Committee. Delegates Staggers and Long attempted to amend the referral section totally out of the bill. Again after much debate this amendment also failed. The House bill was then sent to the House Judiciary Committee.
Next the fight went back over to the Senate where the Senate version of the bill was taken up by the Senate Judiciary Committee. Dr. Austin Wallace again spoke before the committee and Dr Ganpat Thakker, MD spoke on behalf of the American Academy of Cardiology. Senator Evan Jenkins attempted to amend the rule again by deleting the entire section prohibiting physician to physician referral. He argued strongly that a vote against his amendment would be a vote in favor of bigger government intrusion into the private practice of medicine, negatively impact access to patient care, negatively impact patient convenience and pose higher costs to patients by restricting competition. Senator Dan Foster, MD again spoke against the amendment saying that his interest was to see an agreement reached between the Medical Association and the Hospital Association and since that has not happened he did not support the amendment. Jenkins' amendment failed on a tie vote. The following is the roll call:
In favor of Jenkins Amendment:
Senators Barnes, Caruth, Deem, Hall, Jenkins, McKenzie, Stollings and Yoder
Against Jenkins Amendment:
Senators Foster, Green, Hunter, Minard, Oliverio, Wells, White and Kessler
Senator Minard offered two amendments that were provided by request of the Health Care Authority. One amendment was to dispel the concerns raised by physicians, specifically the Greenbrier Clinic, regarding the concerns on the referral language. The amendment would "grandfather in" all physician practices and clinics who are already taking referrals and providing diagnostic services. Any practice wishing to be grandfathered in must however report data to the Health Care Authority and be subject to an audit if the authority wishes to have more data. Senator Jenkins raised concerns regarding the new reporting requirements. The amendment was adopted on a voice vote.
Senator Minard offered a second amendment posed by the HCA which would allow physician practices and clinics to accept some referral patients for lab or imaging services. The amendment capped the amount at 100 procedures or 10% of the total # of procedures performed, whichever is less. This was also adopted on a voice vote.
On Wednesday February 28, the last day to pass a bill from one house to the other, the full Senate took up and passed SB 278. The rule passed without amendments being posed on the floor by Senators Jenkins and Stollings. The WVSMA had spent over 4 hours in negotiations that afternoon in the Governor's office with the Hospital Association and the Health Care Authority and had come closer to an agreement on modifications to the rule. The Senators pulled their amendments in the spirit of cooperation and allowing that process to continue. The bill is now in the House Judiciary Committee where any potential agreement on amendments will be inserted into the bill.
It was made clear to all parties that though the WVSMA was interested in seeing the entire rule be withdrawn the Governor was not willing to go that far. However, the parties were encouraged by the Governor to come up with modifications to the rule that both sides could live with.
Negotiations are not over at this point but there has been tentative agreement on the direction an amendment would take.
First, all parties have agreed to pull out the reporting requirements placed in the rule as part of the "grandfathering" clause. The Senate Judiciary Committee had amended the rule to "grandfather" in all physician practices which are not currently in compliance with the rule. Our understanding of this grandfathering provision would cover those practices which are currently providing diagnostic services to patients (either through referral or other) to continue to do so at the current level they are offering those diagnostic services (# procedures). This sounds good, however, all practices would have been required to report to the Health Care Authority their current status in order to qualify for the "grandfathering." This reporting was sharply objected to by the WVSMA. The current proposal on the table is that all physician practices would be grandfathered at their 2006 level or at a level that is an average of the past three years, without being required to initially report to the HCA. Only in the case that a complaint is filed against a practice/physician with the HCA (typically by another provider) would the HCA then require that practice to prove they have not increased their diagnostic services. which are otherwise disallowed. The exact language being discussed is the following:
The practice/office would be grandfathered in if:
"Such laboratory or imaging services were offered by the private office practice on the effective date of this rule; provided however, that the number of laboratory or imaging procedures performed on patients who are sent to the private office practice subsequent to the effective date of this rule for the sole purpose of obtaining laboratory or imaging services must remain at or below the level performed on such patients in 2006, or the level established by calculating an annual average based upon calendar years 2004 through 2006, inclusive."
Second, there was a significant amount of discussion regarding the "referral prohibition." This section clarifies that physician offices, which take referrals from other physician offices for the purpose of providing a lab or imaging service, are considered a "diagnostic center" and must receive a Certificate of Need in order to accept those referrals. The WVSMA has raised significant concerns regarding this section of the rule. The proposed language modification being discussed would allow practices to perform up to 25% of their total annual lab or imaging procedures on patients that are referred to them solely for that purpose. In other words, the patients are not seen by the physician and they are not considered a patient of the practice, they merely receive the imaging or lab service and were sent back to the referring physician.
The exact language being discussed is:
A physician practice/clinic would be considered a diagnostic center and must apply for and be approved for a Certificate of Need if it is ...
2.1.c. Any facility owned or operated by one or more health professionals licensed, authorized, or organized pursuant to Chapter 30 of the West Virginia Code which offers laboratory or imaging services to patients that are sent by other licensed health care professionals for the sole purpose of obtaining the laboratory or imaging services, regardless of the cost associated with the proposal. A facility shall not be deemed a diagnostic center under subsection 2.1.c. if the proportion of laboratory procedures performed on such patients does not exceed 25% of the total laboratory procedures performed by the facility, and the proportion of imaging procedures performed on such patients does not exceed 25% of the total imaging procedures performed by the facility.
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This bill legalizes the use of electronic prescribing technology in West Virginia by clarifying that a prescription may be written, oral and "electronic." It also clarifies that a prescription may go through an "electronic intermediary." Current law requires a prescription to go straight from the prescriber to the pharmacist however e-prescribing systems process the prescriptions through a clearing house as they go to the pharmacy from the physician. This modification to the law is seen as providing a big boost toward encouraging more physicians to utilize e-prescribing technology.
The bill passed the Senate early in the session on February 5 and has been double referenced in the House first to the health Committee and Second to the Judiciary Committee. It is currently in the House Health Committee. |
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Four years ago the Legislature passed the Mental Health parity Act which requires insurers to provide insurance coverage for mental illnesses on par with physical illnesses. The bill placed financial protections in law by allowing insurers to ask to be exempted from the law if their cost of providing the coverage exceeded 2%. The law was passed with a "sunset" provision that essentially allows it to cease on March 31, 2007 unless the Legislature specifically takes action to extend the law. Also included was a requirement for the Insurance Commissioner to annually report to the Legislature the financial impact this law on insurers.
This new bill removes the "sunset" requirement from the current law, essentially placing the law onto the books permanently. It also removes the reporting requirement of the Insurance Commissioner.
The bill (HB 2578) passed the House on February 6 and was double referenced in the Senate first to Banking and Insurance and Second to Finance. It is passed the B&I Committee on Wed, Feb 28 and is currently in the Finance Committee. |
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Second Hand Smoke -
One bill moving through the Legislature aimed at protecting the public from second hand smoke is SB 219. This bill prohibits smoking in cars when children under 14 are present. The bill came out of the Senate Health Committee with stiff fines and allowed this as a "first offense" meaning law enforcement could pull someone over if they observed someone smoking and they thought a passenger looked under 14 years of age. The Senate Judiciary Committee amended the bill to make it a "second offense" meaning that law enforcement would have to observe the driver committing another offense (like speeding) before pulling them over and then ticketing them for smoking in the car with a child as well. The fine was dropped down from $50-$250 to $10-$20. The fines and the secondary offense are similar to the law currently on the books requiring seatbelt use.
The bill passed the Senate on February 21 and was single referenced to the House Judiciary Committee where is currently sits. Some trouble has found this bill and some legislators are putting pressure on Committee Chair Webster to not run the bill.
Cigarette and Smokeless Tobacco Excise Taxes
Though a few bills have been introduced this session aiming to increase the cigarette and smokeless tobacco taxes no action has been taken by the legislature to date. It seems evident at this point in the game that this issue will not be taken up this session.
Tobacco Prevention Funding
The 2007 fiscal year state budget that Governor Manchin proposed includes funding for tobacco prevention at the current level, $5.85 million. The Budget will not be run by the Legislature until the final week of session so we are watching to make sure the funding is retatined.
Creating Tobacco Settlement Finance Authority & Securitizing Tobacco Funds - SB 185
Legislation aiming to allow the State to sell bonds to securitize the future 20 years of tobacco settlement payments to the State is up for passage in the Senate today (Feb 27). This legislation as introduced establishes the Tobacco Settlement Finance Authority and requires the sale to bring in at least $700 million. The proceeds will be used to pay down the debt in the Workers Comp and State Teachers Retirement System. The Senate Finance committee passed the bill and amended it to direct all the funds to pay down the Teachers Retirement debt. They also increased the minimum sale threshold to $750 million. The bill was amended on the floor to up that threshold to $800 million. The bill has passed the Senate and is now in the House Finance Committee. |
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Legislation requiring the State to increase the number of metabolic tests performed on all newborns is moving through the Legislature. HB 2583 would increase the number from the current 8 that are done to 29 tests. The Bureau for Public Health would continue to operate this program and pay for the tests for all WV newborns however they are authorized to initiate billing to insurers for the cost of the tests.
Hospitals and birthing centers are currently required to ensure that each newborn be tested for phenylketonuria, galactosemia, hypothyroidism, sickle cell anemia and certain other diseases specified by the Bureau for Public Health. By the July 1, 2007, the Bureau for Public Health will also require testing for the following: congenital adrenal hyperplasia, cystic fibrosis and biotinidase deficiency. Then by July 1, 2008 the Bureau for Public Health will also require testing for: isovaleric acidemia, glutaric acidemia type I, 3- Hydroxy-3-methylglutaric aciduria, multiple carboxylase deficiency, methylmalonic acidemia-mutase deficiencvy form, 3-methylcrotonyl- CoA carboxylase deficiency, methylmalonic acidemia, Cbl A and Cbl B forms, propionic acidemia, beta-ketothiolase deficiency, medium- chain acyl-CoA dehydrogenase deficiency, very long-chain acyl-CoA dehydrogenase deficiency, long-chain hydroxyacyl-CoA dehydrogenase deficiency, trifunctional protein deficiency, carnitine uptake defeat, maple syrup urine disease, homocystinuria, citrullinemia type I, argininosuccinate acidemia, tyrosinemia type I, hemoglobin S/Beta-thalassemia, sickle C disease and hearing deficiency
This bill has passed the House and was single referenced to the Senate Finance Committee where it currently sits. |
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Legislation aimed at modifying and clarifying the current statute relating to sale of soft drinks in schools has passed the House (HB 2842). The bill clarifies when and if soft drinks and healthy beverages may be sold or served. The bill clearly states that soft drinks may not be sold or served during the school day in any elementary, middle or junior high school. It allows High Schools to permit the sale of soft drinks during times other than breakfast or lunch. It clarifies that "healthy beverages" must be made equally accessible to students and vending machines must be stocked with 50% healthy beverages. Healthy beverage is defined in current law and is not modified in this bill as water, 20% fruit or vegetable juice and low-fat milk. This 20% threshold has been objected to by groups promoting healthy lifestyles and addressing the epidemic of overweight children.
The profits from the sale of healthy beverages offered through a school nutrition program accrue to the benefit of the nutrition program and that 75% of the profits from other sales of healthy beverages and soft drinks in a county school shall be allocated by a majority vote of the faculty senate of each school. The remaining twenty-five percent of those profits is to be allocated to the purchase of necessary supplies by the principal of the school.
Similar legislation originated in the Senate and was up for passage at the same time the House passed their bill (SB 745). The Senate bill was identical to the House bill however the definition of Healthy Beverage was modified - to read "water, 100% fruit and vegetable juice and low-fat milk." The Senate bill was referred back into the Senate Education Committee where it now sits with the House bill. |
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Legislation aimed at strengthening the ATV safety laws has failed again this year. SB 509 which passed out of the Roads and Transportation and Judiciary Committees was up for second reading on the Senate floor on Tuesday, Feb 27 but was removed from the calendar by the Senate Rules Committee. The bill would have prohibited the operation of any ATV on any paved road, prohibited passengers unless the vehicle is made for allowing passengers, required all persons under age 18 to wear size appropriate helmets. Persons would have been allowed to operate their ATV on the shoulder of a paved road for a distance of no longer than 2 miles and must keep at or below 25 miles per hour and have headlights and taillights if operated at night.
Another important component of the bill would have authorized the DOH, DMV, State Police and the Governor's Highway Safety Program to create an all-terrain vehicle incident form. Law enforcement officers are required to complete the form when an all-terrain vehicle is involved in any incident. The incident form was required to include, but not be limited to, the following:
(1) The type and cause of the incident; (2) The location of the incident; (3) The presence of a passenger on an all-terrain vehicle; (4) The contact information of the operator of an all-terrain vehicle and any passenger on an all-terrain vehicle; (5) A description of the all-terrain vehicle, including a statement that a passenger is or is not allowed under manufacturers' recommendations; (6) A description of the incident; (7) A description of the injuries; and (8) The types of safety equipment used by the operator of an all-terrain vehicle and any passenger on an all-terrain vehicle.
Another piece of legislation (SB 508) that would have required registration of all ATV's in WV died early in the Senate Roads and Transportation Committee. There were many issues raised regarding the taxes that were to be accessed on the sale of ATVs and the registration fees. |
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Legislation that would remove the current helmet law for all motorcycle drivers and passengers has died in the House Judiciary Committee. The House Roads and Transportation committee passed this bill out on Feb 14. The bill removed the helmet requirement for any motorcycle driver or passenger over the age of 21. It clarifies that drivers must have a valid motorcycle operator's license for at least two years before being eligible to drive without a helmet.
After the bill was referred to House Judiciary the WVSMA wrote a letter to the Judiciary Chair, Delegate Carrie Webster, requesting that she not run the bill in her Committee. |
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This is the bill that specifies that breastfeeding in public is not indecent. Breastfeeding advocates have been working to get similar legislation passed for two years. Their interest is in making breastfeeding mothers feel more comfortable feeding their children in public so to decrease any stigma associatied with it and increase the incidence of breastfeeding in WV overall. WV has one of the lowest incidences of breastfeeding in the nation.
The bill passed the full Legislature on Monday, Feb 26, and is on its way to the Governor.
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This is enabling legislation that will allow the Board of Medicine and the Board of Osteopathic Medicine to contract with a Physician Health Program to provide monitoring services for physicians with substance abuse/addiction and major mental illnesses. This bill is the result of over a year and a half of research and collaboration between the WVSMA, WV Society of Osteopathic Medicine, Board of Medicine, Board of Osteopathic Medicine, WV Hospital Association, WV Mutual Insurance Agency, and WV PAGE. The bill allows the Boards to take a "therapeutic" instead of "punitive" approach toward physicians with addictions and mental illnesses and helps to steer them into treatment voluntarily.
The bill also modifies the current statute regarding non-renewal of medical licenses. Currently if a physician allows their license to lapse by simply not paying the renewal fee, the Board of Medicine 'suspends' their license. Though it is a non-disciplinary suspension it still is regarded as a suspension that is on the physician's record. The bill changes this to "expiration" and modifies the process to reinstate the license to active status.
The bill passed the House Finance Committee on Friday morning (March 2). The committee members asked a number of good questions. Robert "Bob" Knittle, Executive Director of the Board of Medicine spoke to the bill and answered the Member's questions. The bill passed unanimously on a voice vote.
The bill was amended to include the provisions of another bill the Board of Medicine is pushing. SB 474 would change the term "suspension" to "expiration" under the section of the code relating to failure of a licensed physician to renew their license timely. Currently if a physician misses the deadline and fails to pay their renewal fee the board gives the physician a non-disciplinary suspension. Since "suspension" is looked at as a very specific disciplinary action by credentialing agencies and others, the Board is seeking to change this term to "expiration." They have also set forth a process for those physicians to reinstate their licenses and have included a one time processing fee equal to $150.
The bill will now go straight to the floor of the House and after passage will be sent back to the Senate for them to concur with the House amendments. |
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An amended version of HB 3164, the Governor's Bill to strengthen the state Pharmaceutical Advocate and Pharmaceutical Cost Management Council, passed the House of Delegates on a vote of 76-19 this week. In addition to requiring pharmaceutical companies to disclose detailed information about marketing and advertising costs, (including the names of physicians who received any gifts or grants) the legislation allows WV to join a multi-state consortium representing at least 5 million people to negotiate lower prescription drug prices for the State. The bill also revises the composition of the Pharmaceutical Cost Management Council to include consumers and representatives from labor, the faith-based community, seniors, and the business community. The bill is double-referenced to Senate Health and Senate Finance committees.
Pharmaceutical industry has been hotly opposing this bill. It is understood that the Governor no longer supports the bill with the House amendments. This issue is long from over. |
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March 10 is the last day of the regular legislative session. The House of Delegates will report out their budget early next week and the Senate will report their version. Both houses will refuse to accept the other house's budget and a conference committee will be formed to "work out the differences". The Governor will extend the session for approximately a week to give time for the Budget Conference Committee to agree on how to spend the taxes collected. Most likely the budget will be approved by March 17th, if history can be a predictor for this year. The extended session will provide an opportunity to correct any bills that passed that have errors in them. |
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Bills relating to ATV safety, expanding the scope of dental hygienists, child welfare reform, remote dispensing of prescription drugs, vaccinations, changes to minimum wage laws, repeal of the soft drink tax, and long-term substance abuse treatment did not complete legislative action this week. Several bills relating to joint parenting and custody issues, including criminalizing false reporting of child abuse/neglect, are expected to be study issues during the interim process. A packed public hearing was held this week which included speakers from the MAD DAD organization who called for system reforms, and domestic violence and child abuse prevention advocates who testified that current laws are working to protect children. Vaccinations for children, including mercury in vaccines and other issues such as the HPV vaccine for girls entering sixth grade, are also expected to be on the legislative radar screen for the next sessi on. Study resolutions have also been introduced on issues such as redesign and expansion of school health, nurse practitioner scope of practice issues, and child welfare reform. |
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March 03, 2007
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Legislative Web Site
For more information on any of the bills included in this newsletter or others moving through the Legislature click on the following link:
Bill Status
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WVSMA Government Relations Team:
Amy N. Tolliver, MS
Government Relations Specialist
West Virginia State Medical Association
amy@wvsma.com
304.925.0342 ext: 25
Nancy S. Tonkin
President
Tonkin Management Group
nstonkin@citynet.net
304.345.6808
Becky King
Tonkin Management Group
bk517@attglobal.net
304.345.6808
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