The 60-day 2011 Legislative Session was adjourned on Saturday, March 12 at the stroke of midnight.  This brought to an end what many have said was the most unusual Session in generations.  With Governor Joe Manchin vacating his position for a post in the US Senate, a domino effect occurred with political leaders all down the line maneuvering for better positions.  With Senate President Earl Ray Tomblin taking office as Acting-Governor the fight for the would-be Acting-Senate President created much tension and confusion, resulting in the Supreme Court having to weigh in on the proper process for filling that vacancy.  That fight caused quite the divide among the Senate with at times a 50/50 split in the membership on which camp should maintain the power – the “new direction” under the Leadership of Senator Jeff Kessler or the “status-quo” of the current leadership members under Earl Ray Tomblin.  As we know, the story ends with Senator Kessler’s team winning that fight and thus there we began the 2011 Legislative Session.

The Dominos; however, were still falling.  With so many people throwing their hats into the ring to run for Governor, jokes abounded that a simpler way to wade through the hopefuls was to simply find out who in fact is NOT running for Governor!  With the Acting-Governor, the Acting Senate President and the Speaker of the House of Delegates all in the running, a leadership vacuum trifecta of sorts was created and set out some strange politics for the duration of the Session.

There was much talk that a number of looming issues would be addressed including regulating (and taxing of course) Marcellus Shale natural gas drilling, finding budgetary solutions to the underfunded Other Post Employment Benefits fund (OPEB) and increasing the tobacco tax.  But talk was all that ended up happening on those big issues.

With all of the political maneuverings it was hard to imagine that anything would actually pass, and many bills were not, but still a number of good issues were addressed.  This publication provides you with a summary of many of the healthcare related bills that were dealt with this legislative Session.  For copies of the full bills you can access the West Virginia Legislature’s web site at www.legis.state.wv.us or if you have any questions regarding any of these or other bills you may contact Amy N. Tolliver, MS WVSMA Government Relations Specialist at amy@wvsma.com or 304-925-0342 x25.

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On March 8 the West Virginia Supreme Court of Appeals heard oral arguments in the MacDonald v. City Hospital case.  This case is paramount to the future practice of medicine for West Virginia physicians and to the healthcare community in general.  The plaintiffs are challenging the caps on non-economic damages in the medical professional liability act.  We expect the Court to decide on this case before their current term ends sometime in early June. 

In 2003 the WV Legislature passed HB 2122, this bill contained a number of landmark provisions that, taken as an entire package, reformed the medical liability system, stabilized the insurance market and led to the past decade of improvement in the provision of health care services to the people of West Virginia.  Foremost among the reforms was the implementation of a cap of $250,000 for non-economic damages, while adjusting the cap to $500,000 for cases involving death, loss of a limb or permanent disability.  Before passage of this bill WV law allowed for a $1 Million cap on non-economic damages. The MacDonald case brings into question the $500,000 cap and jeopardizes the $250,000 cap as well. 

In 2004, James MacDonald was admitted to the City Hospital with pneumonia. Previously, Mr. MacDonald had received a kidney transplant and continued to suffer from diabetes. Following his treatment in 2004, MacDonald and his wife sued City Hospital and his treating physician, Sayed Ahmed MD, claiming to suffer muscle pain to his lower extremities due to their medical negligence. In 2008, the jury awarded MacDonald $92,000 in medical expenses, $37,000 in lost wages, $250,000 for past pain and suffering and $750,000 for future pain and suffering. It also awarded his surviving spouse $500,000 for sorrow and mental anguish. The jury's one and a half million dollars aggregated award for pain and suffering exceeded the cap by one million dollars. Consequently, the trial judge reduced the award to $500,000, citing the 2003 statutory cap. MacDonald's attorneys then appealed the decision contending that the cap was unconstitutional.

The West Virginia Supreme Court of Appeals previously upheld the one million dollar cap on non-economic damages in 1991, by a 5-0 vote. Ten years later, in 2001, in the case Verba v. Ghaphery, the Court upheld the one million dollar cap by a 3-2 vote. The upholding of the previous cap twice is a good track record but does not bring certainty that the Court will uphold the lower caps.

If the Court determines the caps are unconstitutional it may place into doubt the constitutionality of other provisions of the medical malpractice statute.  We will certainly see an increase in the cost of malpractice insurance to West Virginia health care providers.  An Illinois study found that medical liability insurance rose 18% after the cap was removed.  This may jeopardize improvements in physician recruitment and retention in West Virginia by precipitating the retirement and relocation of physicians to other states.

The WVSMA engaged in the case by filing a friend of the court brief in conjunction with the AMA, the WV Hospital Association, and various county medical societies and specialty societies.  We are closely monitoring the developments and will report to our members as soon as we hear any actions of the Court.  For additional information on the case please visit our website www.WVSMA.com.

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The following is a summary of healthcare related bills that passed this legislative session.

SB 216 - Modifying definition "imminent danger to physical well-being of a child"

The bill specifies the definition of “imminent danger“ in regard to child neglect or abuse to include alcohol and substance abuse by the parent, guardian or custodian when such substance abuse has impaired his or her parenting skills to a degree as to pose an imminent risk to a child’s health or safety.

SB 285 Extending time frame practitioners must write prescriptions on official tamper-resistant paper

The bill allows the Board of Pharmacy until January 1, 2012 to implement a tamper-resistant paper program established with the passage of legislation in the 2010 legislative session.  The 2010 bill required all prescriptions (controlled and non-controlled) that are written on paper to be written on special tamper proof paper approved by the Board of Pharmacy.  Electronic and phone based prescriptions are exempted from this requirement.  The Board plans to issue a request for proposals for contactors to bid for the ability to provide such paper to West Virginia prescribers at a fee.  Physicians and all other prescribers will be required to purchase their paper only from the approved vender(s) of the Board of Pharmacy.

SB 408 Creating WV Health Benefit Exchange Act
The bill establishes the ability for the WV Insurance Commissioner to implement a state healthcare exchange.  The exchange would facilitate the purchase and sale of health plans in the individual health care insurance market in West Virginia.  It will also facilitate a Small Business Health Options Program within the exchange to assist qualified small employers in facilitating enrollment of employees.

SB 428 Increasing fees charged by clerk of circuit court for medical professional liability actions

The bill simply adds $20 to the fee charged to the plaintiffs by the circuit courts to file a medical liability case.

SB 474 Relating to manufacturer's liability for prescription drug warning or instruction

The bill attempts to codify the “learned intermediary doctrine” by recognizing a manufacturer of a prescription drug is not liable in a products liability action for failing to provide a warning or other instruction directly to a consumer if an adequate warning or instruction has been provided to the physician.  The bill applies to cases that are filed in West Virginia by non-residents and stipulates that the duty to warn shall be governed solely by the product liability law of the place of injury.

SB 488 Revising HIV testing statute to conform with most recent recommendations from CDC

This bill was a key policy issue of the WVSMA this Session.  The bill brings West Virginia’s HIV testing statute into compliance with the most recent CDC recommendations on testing of adults and adolescents in healthcare settings.  The requirement for pre testing counseling and separate written consent for the HIV test are removed from law in favor of simple consent with an opt-out option for the patient.  The intent of updating the legislation is to remove barriers to testing so to increase testing.

SB 492 Relating to maximizing federal funding for state Medicaid program

The bill establishes the hospital Medicaid upper payment limit program designed to increase payments to certain acute care hospitals.  The bill increases the hospital provider tax by 0.88% on the gross receipts received or receivable by eligible acute care hospitals that provide inpatient or outpatient hospital services.  An eligible acute care hospital is any inpatient or outpatient hospital conducting business in this state that is not: state or government owned or designated facility; a critical access hospital; a licensed free-standing psychiatric or medical rehabilitation hospital; or a licensed long-term acute care hospital. The bill requires a state plan amendment to be developed by the Bureau for Medical Services and approved by CMS prior to implementation of the tax.

SB 532 Relating to fraud and abuse in Medicaid program

The bill expands the investigatory powers of the Medicaid fraud team and clears up some vague language in the current law.  The WVSMA successfully fought to make many changes to the bill that reduced the negative impact it could have on practicing physicians who may be investigated for fraud by Medicaid.

SB 560 Relating to confidentiality of Health Care Authority's rate-setting model

The bill makes the rate-setting models utilized by the Health Care Authority exempt from public disclosure. The Authority uses such models to make determinations regarding hospital rates.  The bill allows the options generated by the rate-setting models to be open following any decision by the board.

SB 570 Creating Volunteer for Nonprofit Youth Organizations Act

This bill was drafted to allow the Boy Scouts of America to bring in healthcare and law enforcement professionals from all over the nation to provide professional volunteer services during their soon to be annual Jamboree in the Hills event.  The bill allows the volunteers to provide services in state without having to be licensed.  The Boards of Medicine and Osteopathy raised concerns with the legislation and argued that it could jeopardize patient safety if there were no regulatory agency in state overseeing the physician volunteers those arguments fell on deaf ears.

The Boy Scouts have purchased a 1500 acre tract of land in Nicholas County and are gearing up to host their annual events in West Virginia.  This event draws an estimated 15,000 participants over a three week period.

HB 2479 Relating to dental anesthesia

The bill, proposed by the Board of Dentistry, modifies the Board’s regulation of anesthesia in dental offices.  It creates a certification program for anesthesia and requires that there be a person specifically designated as responsible for the anesthesia during any procedure who is not the person performing the procedure.

HB 2498 Relating to the practice of dentistry

HB 2505 Adding synthetic cannabinoids and hallucinogens and stimulants to the Schedule I list of controlled substances (K2)

This bill regulates and outlaws the sale of products that are synthetic marijuana and cocaine. Such products are generally sold at head shops as “bath salts”.  Teens are buying the products and many have gotten very sick from their consumption. The WVSMA supported this legislation and included it in our policy issues for the session.

HB 2522 Relating to nursing home administrative appeals

The bill creates an independent informal dispute resolution process for nursing homes by allowing a facility or licensee which is adversely affected by an order or citation of a deficient practice from the Office of Health Facility Licensure and Certification (OHFLAC) to request such dispute resolution process.

HB 2639 Authorizing miscellaneous boards and agencies to promulgate legislative rules

This omnibus bill contained 33 different rules all proposed by various state licensing boards.  Included in the bill were the rules of the Board of Osteopathy regarding expanded prescriptive authority and injections.  These rules were the result of the bill that passed last year which directed the optometric board to develop regulations to allow optometrists to perform many new duties beyond their scope of practice.  The rules, as passed, vastly broaden the prescribing ability of optometrists and allow them to perform injections around the globe of the eye. 

The WV Academy of Ophthalmology and the WVSMA fought hard to reign in the rules by limiting the prescriptions that could be written and require coordination with the patient’s family physician if any drugs would be prescribed or injected which affect the patient systemically.  Additionally, much effort was made to limit the types of injections that could be performed on patients.  A lot of discussion was had on retrobulbar, peribulbar and periocular injections and the concerns that optometrists are not trained to perform most of them nor trained to handle all the bad outcomes that may occur.

Though some committees made amendments that were proposed by the physician organizations to address patient safety concerns, the rules as finally passed by the full legislature were stripped back to the form in which they were proposed by the Board of Optometry.  This was a big loss for the physician community and for patient safety in West Virginia. 

HB 2693 Requiring insurance coverage for autism spectrum disorders

This bill requires insurers, including PEIA, to cover treatment for autism spectrum disorders.  The bill as passed requires insurers to cover such treatment from age 18 months (or diagnosis) through 18 years.  Coverage would be limited to $30,000 annually for the first three years when intensive treatment is typically required, then reduced to $2000 per month thereafter.

The passage of this bill was fought for by parents of autistic children and organizations which provide treatment and care to the children.  The WVSMA supported the legislation.

HB 2745 Providing that certain information provided by insurance companies to the Insurance Commissioner is confidential

The bill includes the provisions for the state to create an all payer claims database.  This database would hold all claims information from any and all payers doing business in West Virginia.  The insurance commissioner’s office, the DHHR and the Health Care Authority would all have a role in the development, maintenance and discrimination of any information.  The database is touted as a way to help patients wade through the cost and quality of healthcare options and to effectively illuminate trends in healthcare costs and quality. 

HB 2853 Providing for a special primary and general election to fill a vacancy in the office of Governor

The bill would call for the primary election to be held on May 14 and the general election to be held on Oct. 4. Another bill that passed, SB 342, appropriated $8 million to finance the special elections.

HB 2863 Providing for the costs of disability physical and/or mental examinations approved by the Consolidated Public Retirement Board under the West Virginia State Police plan

HB 2864  - All relating to the creation of a misdemeanor crime of unlawful restraint in the first and second degree

The bill, known as "Celena's Law", creates the misdemeanor crime of unlawful restraint in the first and second degree for domestic violence for any person who, without legal authority, intentionally restrains another with the intent that the other person not be allowed to leave the place of restraint and who does so by physical force or by overt or implied threat of violence or by actual physical restraint.

HB 2885 Allowing a guardian or conservator to be employed or in an employment contract with a behavioral health provider

The bill allows a guardian or conservator to provide care to a person with disabilities to be employed or in an employment contract with a behavioral health provider if payment for services provided under the contract or employment agreement is made pursuant to a waiver program and the person is related to the protected person.

HB 3021 Adding two new members to the Comprehensive Behavioral Health Commission

HB 3028 Expanding the responsibilities of the Maternal Mortality Review Team

The bill adds review of infant mortality to the work of the existing Maternal Mortality Review Team.  This bill was proposed by the WV Perinatal Partnership and supported by the WVSMA as a way to address West Virginia’s high rate of infant mortality, particularly of Caucasian infants. 

HB 3075 Increasing the time period in the hold-harmless provision when distributing state aid to local health departments

The bill keeps the fund disbursement to local boards of health at the current level in the state budget.

HB 3105 Providing immunity from civil or criminal liability for first responders who use forced entry to a residence

The bill provides immunity to first responders (law-enforcement officers, firefighters, emergency medical services personnel and others) that respond to calls for emergency medical assistance from civil or criminal liability who use forced entry into a residence.

HB 3114 Allowing the development and operation of a nursing home on the grounds of a critical access hospital meeting certain restrictions

The bill will allow for the development and operation of a nursing home on the grounds of a critical access hospital meeting certain limitations and exemptions from nursing home suspension and certificate of need (CON) requirements. This will allow the sale of the long term care beds at Summers Memorial Hospital to another company due to their closing without going through the CON process.

HB 3196 Establishing a program and procedure for certifying medications assistive persons in the health industry

The bill establishes a pilot program and procedures for monitoring the practice of unlicensed personnel administering medication in nursing homes. The program will be conducted by the West Virginia Board of Examiners for Registered Personnel Nurses.

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Each Session the Legislature proposes various resolutions for study topics over the coming year.  When the Legislature meeting for their monthly meetings during the Spring and Summer months they will review the issues and draft legislation on any topics which they have determined warrant addressing.

HCR 85 - Requests a study on retaining in West Virginia additional practicing health care professionals.

HCR124 - Requests a study on the possible need to regulate the rental network PPO market. (This study was proposed by the WVSMA)

HCR 125 Requests a study relating to requiring direct payment by health insurance companies and health maintenance organizations to out-of-network health care providers. (This study was proposed by the WV Hospital Association)

HCR 136 Requests a study of the rural health initiative to determine the most effective manner to provide rural health opportunities in the state.

HCR 143 Requests a study on combining the state health care programs into a single agency.

HCR 144 Requests a study on the feasibility of requiring the WV DHHR to annually review rates its various programs pay to health care providers.

SCR 54 Requests a study of scope of practice of health care professions.

SCR 77 Requests a study on the transparency of healthcare providers’ training and degrees held.

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The following is a listing of various healthcare related bills that failed this Session.

SB 80 Redefining basis for disqualification of prospective jurors

The bill allowed for nursing women to request to be dismissed from jury duty or to be granted upon request accommodations to nurse or pump.

SB 82 Declaring child’s right to nurse in public place is socially acceptable

The bill clarified in law that a woman has a right to nurse her child in public wherever she and the child have a right to be.

SB 78 Requiring parental consent for minor to use tanning device

The bill required teens under age fourteen to receive parental consent prior to utilizing a tanning bead.

SB 64 Permitting unlicensed personnel to administer medications in certain circumstances

The bill allowed for unlicensed persons (not nurses or other) to administer medications to certain patients.

SB 319 Establishing tax credit for certain medical providers

The bill allowed for a tax credit for physicians who volunteer their time at free health clinics.

SB 407 Incorporating federal health insurance reforms into insurance code

The bill would have placed into WV law many provisions of the federal Affordable Care Act enabling the WV Insurance Commissioner to regulate the areas.  Provisions included were: increasing the age of coverage for dependent children, requiring coverage of preventive care, disallowing annual or lifetime benefit limits and prohibitions on preexisting conditions.  The bill was hotly debated and ultimately fell prey to the partisan debate over healthcare reform.

SB 471/HB 2881 Expanding prescriptive authority of certain nurses

Both bills were proposed by the Nurses Association and would have removed the requirement for nurse practitioners and nurse midwives to have collaborative agreements with physicians.  The House bill was sponsored by Delegate Margaret Staggers, MD and the Senate bill was proposed by Senator Dan Foster, MD.  The bills were strongly opposed by the WVSMA. It is expected that similar legislation will be proposed next year.

SB 526  Allowing certain emergency service providers possess Naloxone to administer in suspected overdoses

The bill allowed first responders including EMS and state police to possess naloxone and administer it to individuals in suspected cases of opioid overdose.

SB 614 Permitting specific law-enforcement officials access to certain confidential pharmaceutical information (similar to HB 2892/ SB 489)

A number of bills were introduced this Session which attempted to address various components of controlled substance diversion.  All of the bills granted County Sheriffs blanket access to the controlled substances database and most required the Board of Pharmacy to create a system to determine parameters for inappropriate prescribing and then to “red flag” those patients and providers who fall outside those parameters.  The red flag reports would then be sent to law enforcement and appropriate licensing boards. 

The WVSMA engaged heavily on each of the bills and fought to ensure access to the database is limited to those who are trained will use it only for proper investigatory purposes.  Additionally, the WVSMA raised serious concerns regarding the establishment of “proper prescribing parameters” and argued that it is very difficult to establish such parameters due to the varied nature of physician specialties and individual practices and individual patient care concerns. 

Ultimately none of the bills passed, but the WVSMA recognizes that a concerted effort should be made to address the issue of controlled substance diversion and that physicians should take the lead in proposing the solution.  The WVSMA is convening a select committee to work to develop legislation and that could be proposed either in a special session this year or next legislative session.

HB 2370 Removing the Commissioner of the Bureau for Public Health from professional licensure boards

The bill would have removed the Public Health Commissioner from most of the allied healthcare boards of licensure.

HB 2439 Requiring insurance coverage of spouses and dependents for pregnancy and contraceptive services

The bill would have required insurers to cover contraceptive and pregnancy care of covered dependent children. 

HB 2524 Relating to the practice of speech-language pathology and audiology

The bill re-wrote the practice act for speech-language pathologists and audiologists.  The WVSMA raised concerns regarding the expansion of the scope of practice for both groups which were proposed in the bill.

HB 2513 Relating to the Practice of Pharmacy

The bill re-wrote the practice act for pharmacists.  Many meetings were held on this bill with input from the WVSMA and other interested parties, as the bill in various stages would have grossly expanded the practice act of pharmacists.

HB 3037 Creating crime and criminal penalties for drug and alcohol abuse during pregnancy resulting in diagnosed harm to infant

The bill would have made it a crime to abuse drugs while pregnant and placed penalties on the women.  This legislation goes in direct conflict with the efforts of the Perinatal Partnership and the WVSMA over previous years to make certain information regarding pregnancy risks confidential so that women will not be fearful of obtaining maternity care.

HB 3052 Providing a procedure under group accident and sickness insurance policies for assignment of benefits directly to providers 

The bill allowed patients to directly assign their benefits to out of network providers.  It would have enabled out of network providers to be directly reimbursed from insurers rather then the payment going to the patient then the provider being responsible for invoicing the patient. The bill was proposed by the WV Hospital Association and supported by the WVSMA.

HB 3085 Including oral or written inquiry of a patient about possession, ownership or storage of firearms as a reason for invoking disciplinary proceedings against physicians

The bill would have disallowed physicians from discussing gun ownership or access to guns in the home with their patients and established disciplinary actions against the physicians by the boards of medicine and osteopathy.  Evidently this was a bill proposed by the NRA.  The WVSMA worked hard against the bill and was able to get the bill pulled from the House Judiciary Committee agenda.

SB440/HB 2946 Requiring prescription for drug products containing chemical precursors of methamphetamine

The bill required a prescription for individuals to purchase all drugs containing pseudoephedrine.  The bill was recommended as a way to reduce the methamphetamine production in state.  The bill was one of the most highly debated bills this session.  Law enforcement and physicians groups and drug treatment professional arguing for the bill saying it would impact the diversion of the drug and lives harmed.  The pharmaceutical industry and retail pharmacies argued that the bill was unnecessarily burdensome to individuals who were properly accessing and using the drug.  In an unusual move, the bill was voted down on the floor of the Senate.  

HB 2973/SB 362 Increasing the excise tax on cigarettes and all other tobacco products

The bill increased the cigarette tax by $1 to $1.55 per pack and the wholesale price of smokeless tobacco by 43% to 50 percent of the wholesale price. It was suspected by many that the bill may have a chance of passage this session, but to no avail.  The bill was supported by the WVSMA.

HB 3192 Relating to those persons or entities that enters into direct contracts with providers for the delivery of health care services

The bill allowed the WV Insurance Commissioner to regulate the rental or leasing of PPO’s networks. In recent years, the health insurance market has developed a secondary market in physician discounts that has negatively affected physician’s ability to manage their practices.  The lack of regulatory oversight in the Preferred Provider Organization (PPO) industry has resulted in the proliferation of entities that are engaged in the lucrative business of developing health care provider panels and then leasing the panels and associated discounts to various entities. 

The WVSMA proposed this bill and the study resolution (SCR 77).  We will be working with the legislature over the coming year to develop support for the legislation next session.

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