H. B. 2362

(By Delegates Fleischauer, Webster, Brown,
Hatfield, Doyle and Amores)
[Introduced January 16, 2003; referred to the
Committee on the Judiciary.]

A BILL to amend chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto two new articles, designated articles two-i and two-j; and to amend chapter thirty-three of said code by adding thereto a new article, designated article seventeen, all relating to requiring a physician to obtain the informed consent of his or her patient before ending the patient's pregnancy by inducing an abortion.

Be it enacted by the Legislature of West Virginia:

That chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto two new articles, designated articles two-i and two-j; and that chapter thirty-three of said code be amended by adding thereto a new article, designated article seventeen, to read as follows:
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 2I. INFORMED CONSENT FOR ABORTIONS.

§16-2I-1. Definitions.

For the purposes of this article, the words or phrases defined in this section have the meanings ascribed to them. These definitions are applicable unless a different meaning clearly appears from the context.

(1) "Abortion" means the deliberately induced termination of a woman's pregnancy by the outside intervention of a physician, other than with the intent to cause a live birth. As used in this article, the word "abortion" is a limited legal term. It is not to have attributed to it its broader medical meaning or definition, and does not include a spontaneous abortion or a traumatic abortion. Abortion does not mean the use of an intrauterine device or birth control pill to inhibit or prevent ovulation, fertilization or the implantation of a fertilized ovum within the uterus.

(2) "Conception" or "fertilization" means a process that consists of the penetration and impregnation of the female reproductive cell (the ovum) by the male reproductive cell (the spermatozoon), and their subsequent fusion.

(3) "Department" means the department of health and human resources.

(4) "Facility" or "medical facility" means any public or private hospital, clinic, center, medical school, medical training institution, health care facility, physician's office, infirmary, dispensary, ambulatory surgical treatment center or other institution or location in which persons receive medical care.

(5) "Health care professional" means a physician licensed to practice in this state, a registered nurse, a licensed practical nurse, a physician's assistant, or any other health care professional licensed to practice in this state.

(6) "Iatrogenic trauma" means trauma inflicted on a patient while a physician is administering professional medical care to the patient.

(7) "Medical emergency" means a condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant female as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.

(8) "Physician" means any medical doctor or osteopath licensed to practice medicine in this state.

(9) "Pregnancy" means the condition of a woman having an embryo or fetus in her body, usually in the uterus, commencing with conception. The provisions of this article are not applicable to an ectopic pregnancy.

(10) "Probable gestational age of the embryo or fetus" means the reasonably probable gestational age of the embryo or fetus at

the time the abortion is planned to be performed, in the judgment of an attending physician.

(12) "Spontaneous abortion" means the termination of a woman's pregnancy that occurs without intentional intervention.

(13) "Stable internet website" means a website that, to the extent reasonably practicable, is safeguarded from having its content altered other than by the department of health and human resources.

(14) "Traumatic abortion" means an unintentional termination of the pregnancy of a woman that has been caused by accidental injury, iatrogenic trauma, or psychological stress.

§16-2I-3. Informed consent; exchange of information and questions between physician and patient.

(a) A physician shall obtain the informed consent of his or her patient before ending the patient's pregnancy by inducing an abortion. Informed consent is reached through consultation, counseling and the use of informational and educational materials by the physician and the patient. Consent to an abortion is informed consent if the physician or his or her medical personnel and the patient discharge the following responsibilities, facilitating an exchange of information and questions that culminates in the patient's agreement to a specific medical or surgical intervention:

(1) The physician ascertains that the patient was provided with the informational materials described in section four of this article at some time after conception but before the twenty-four-hour period immediately preceding the time when the procedure is to be performed;

(2) The physician advises the patient that under the Constitution of the United States and the Constitution of the state of West Virginia, that she has the right to terminate her pregnancy, that her decision is a liberty that is protected against state interference, and that her decision is free from unwarranted governmental intrusion into matters that affect a person so fundamentally as the decision as to whether to bear or beget a child.

(3) The physician solicits from the patient the information necessary to decide the choice of a proposed abortion procedure and to adapt the disclosure of risks and benefits to the particular patient;

(4) The physician tells the patient how long she has been pregnant and the probable gestational age at the time the abortion is to be induced;

(5) The physician discusses with the patient the choice of the specific procedure proposed to end the patient's pregnancy and explains how the procedure will be performed;

(6) The physician discusses with the patient the medical indications for the procedure, if any, including both fetal and maternal indications;

(7) The physician discusses with the patient any reasonably foreseeable risks, complications or discomforts that the patient may experience, including, but not limited to, the risks of infection, hemorrhage, danger to subsequent pregnancies and infertility, or any other reasonably foreseeable medical risk.

(8) The physician discusses the possible benefits associated with the abortion procedure;

(9) The physician explains to the patient any reasonable alternative procedure or treatment that might be beneficial to the patient;

(10) The physician explains to the patient the importance of prenatal care if she decides to carry the fetus to term, particularly with regard to preventing birth defects;

(11) The physician discusses the medical risks associated with carrying a fetus to term, including, when medically accurate, the risks of hyperemesis gravidarum, placenta previa, intrauterine growth retardation (IUGR), gestational diabetes, hypertensive disorders of pregnancy, preterm labor and premature rupture of membranes, bleeding, hemorrhage, and placental abruption, pregnancy loss, and other common medical complications that may occur during pregnancy;

(12) The physician discusses the possible symptoms and risks that may be involved with postpartum distress;

(13) The physician confirms that the patient has been informed, by telephone or in person, by the physician who is to perform the abortion, by a referring physician, or by medical personnel of either physician, at least twenty-four hours before the abortion:

(A) That medical assistance benefits may be available for prenatal care, childbirth and neonatal care;

(B) That the father is liable to assist in the support of her child, even in instances in which the father has offered to pay for the abortion;

(14) The physician provides the patient with information as to organizations, programs and services that are available to assist a safe and healthful pregnancy.

(15) The physician affords the patient the opportunity to ask any questions she may have in following the abortion procedure or carrying the fetus to term, and attempts to answer the questions to the patient's satisfaction;

(16) The physician informs the patient that consent to abortion must be voluntarily given, explains to the patient that consent may be withdrawn by her until a particular time in her treatment, and accurately describes that time as it pertains to her procedure;

(17) The patient provides information to the physician or his or her medical personnel which is, within the patient's knowledge, accurate and complete; and

(18) If the patient decides to have the procedure performed, she certifies in writing, before the procedure is performed:

(A) That the procedure to be performed has been identified and that she has been informed how it is to be performed;

(B) That she has been informed of physical and psychological risks, complications or discomforts that she may experience, associated with her condition;

(D) That any questions that she may have had regarding the procedure have been answered to her satisfaction;

(E) That the information required to be provided to her in accordance with section four of this article has been provided; and

(F) That she voluntarily and freely authorizes the physician to perform the procedure.

(b) If, in the medical judgment of the physician, the results of a physical examination or tests or the availability of other relevant information subsequently indicates a need for a revision of the information previously provided to the patient, that revised information may be communicated to, and discussed with, the patient at any time prior to inducing an abortion.
§16-2I-4.
Information materials related to informed consent.

(a) Before the first day of September two thousand two, the

department of health and human resources shall cause to be published, in English and in each language which is the primary language of two percent or more of the state's population, and shall cause to be available on the state website provided for in section five of this article, the following printed materials in such a way as to ensure that the information is easily comprehensible:

(1) Geographically indexed materials designed to inform the female of public and private agencies and services available to assist a female through pregnancy, upon childbirth, and while the child is dependent, including adoption agencies, which materials shall include a comprehensive list of the agencies available, a description of the services they offer, and a description of the manner, including telephone numbers, in which they might be contacted or, at the option of the department of health and human resources, printed materials including a toll-free, twenty-four hour a day telephone number which may be called to obtain, orally, such a list and description of agencies in the locality of the caller and of the services they offer;

(2) Materials designed to inform the female of the probable anatomical and physiological characteristics of the embryo or fetus at two-week gestational increments from the time when a female can be known to be pregnant to full term, including any relevant information on the possibility of the embryo or fetus's survival and pictures or drawings representing the development of embryos or fetuses at two-week gestational increments: Provided, That any pictures or drawings must contain the dimensions of the fetus and must be realistic and appropriate for the stage of pregnancy depicted. The materials shall be objective, nonjudgmental, and designed to convey only accurate scientific information about the embryo or fetus at the various gestational ages. The material shall also contain objective information describing the methods of abortion procedures commonly employed, the medical risks commonly associated with each procedure, and the possible detrimental psychological effects of abortion;

(3) Materials designed to inform the female of the medical risks commonly associated with carrying a fetus to term, including, when medically accurate, the risks of hyperemesis gravidarum, placenta previa, intrauterine growth retardation (IUGR), gestational diabetes, hypertensive disorders of pregnancy, preterm labor and premature rupture of membranes, bleeding, hemorrhage, and placental abruption, pregnancy loss, and other common medical complications that may occur during pregnancy;

(4) Materials designed to inform the female of the possible symptoms and risks that may be involved with postpartum distress;

(5) Materials designed to inform the female that under the Constitution of the United States and the Constitution of the state of West Virginia, that she has the right to terminate her pregnancy, that her decision is a liberty that is protected against state interference, and that her decision is free from unwarranted governmental intrusion into matters that affect a person so fundamentally as the decision as to whether to bear or beget a child;

(6) Materials designed to teach the social, psychological and health gains to be realized by utilizing methods of birth control or abstaining from sexual activity; and

(7) Other materials designed to help a person evaluate the factors to be weighed in reaching a decision as to whether a pregnancy should be terminated by abortion.

(b) The materials referred to in subsection (a) of this section shall be printed in a typeface large enough to be clearly legible. The website provided for in section six of this article shall be maintained at a minimum resolution of seventy dots per inch. All pictures appearing on the website shall be a minimum of 200x300 pixels. All letters on the website shall be a minimum of eleven point font. All information and pictures shall be accessible with an industry standard browser, requiring no additional plug-ins.

(c) The materials required under this section shall be available at no cost from the department upon request and in appropriate number to any person or medical facility.
§16-2I-5. Informed consent information and education advisory committee.

There shall be an informed consent information and education advisory committee of not less than five and not more than ten members to serve as advisors and consultants to the Secretary of the Department. The role of the committee is to guide the department in the development of objective, medically and factually accurate print and web materials in compliance with the provisions of section four of this article. The committee shall meet at the call of the Secretary or otherwise at least twice each year. The members of the committee shall annually elect one of its members to serve as chairman.

The advisory committee shall be appointed by the secretary, and shall include among its members representatives from the department involved in family planning, the West Virginia medical association, the West Virginia nurses association, the women's health center and other state and nongovernmental agencies concerned with the establishment, operation or utilization of women's health services and facilities.

The members shall serve for five-year terms, or until replaced, except that in the first year one fifth of the members shall be named for a one-year term, one fifth for a two-year term, one fifth for a three-year term, one fifth for a four-year term, and one fifth for a five-year term. Thereafter each member shall be appointed for five years or until his or her successor is appointed. In the case of a vacancy the appointee shall serve the remainder of the unexpired term.

Members of the advisory committee shall be eligible to succeed themselves. Members of the advisory committee shall serve without compensation but shall be entitled to reimbursement for all reasonable and necessary expenses actually incurred in the performance of the duties of their office.
§16-2I-6. Internet website.

The department of health and human resources shall develop and maintain a stable internet website to provide the information described under section four of this article. No information regarding who uses the website may be collected or maintained. The department of health and human resources shall monitor the website on a daily basis to prevent and correct tampering.

§16-2I-7. Procedure in case of medical emergency.

When a medical emergency compels the performance of an abortion, the physician shall inform the female, prior to the abortion if possible, of the medical indications supporting the physician's judgment that an abortion is necessary to avert her death or that a twenty-four hour delay will create serious risk of substantial and irreversible impairment of a major bodily function.
§16-2I-8. Reporting requirements.

(a) Before the first day of September, two thousand two, the department of health and human resources shall prepare a reporting form for physicians containing a reprint of this article and listing:

(1) The number of females to whom the physician provided the information described in subsection (a), section three of this article; of that number, the number provided by telephone and the number provided in person; and of each of those numbers, the number provided in the capacity of a referring physician and the number provided in the capacity of a physician who is to perform the abortion;

(2) The number of females to whom the physician or an agent of the physician provided the information described in section three of this article; of that number, the number provided by telephone and the number provided in person; of each of those numbers, the number provided in the capacity of a referring physician and the number provided in the capacity of a physician who is to perform the abortion; and of each of those numbers, the number provided by the physician and the number provided by medical personnel of the physician;

(3) The number of females who availed themselves of the opportunity to obtain a copy of the printed information described in section four of this article other than on the website, and the number who did not; and of each of those numbers, the number who, to the best of the reporting physician's information and belief, went on to obtain the abortion; and

(4) The number of abortions performed by the physician in which information otherwise required to be provided at least twenty-four hours before the abortion was not so provided because an immediate abortion was necessary to avert the female's death, and the number of abortions in which the information was not so provided because a delay would create serious risk of substantial and irreversible impairment of a major bodily function.

(b) The division of health shall ensure that copies of the reporting forms described in subsection (a) of this section are provided:

(1) Before the first day of September two thousand two, to all physicians licensed to practice in this state;

(2) To each physician who subsequently becomes newly licensed to practice in this state, at the same time as official notification to that physician that the physician is so licensed; and

(3) By the first day of December of each year, other than the calendar year in which forms are distributed in accordance with subdivision (1) of this subsection, to all physicians licensed to practice in this state.

(c) By the twenty-eighth day of February of each year, each physician who provided, or whose agent provided, information to one or more females in accordance with section three of this article, during the previous calendar year shall submit to the department of

health and human resources, a copy of the form described in subsection (a) of this section, with the requested data entered accurately and completely.

(d) Reports that are not submitted by the end of a grace period of thirty days following the due date are subject to a late fee of five hundred dollars for each additional thirty-day period or portion of a thirty-day period they are overdue. Any physician required to report in accordance with this section who has not submitted a report, or has submitted only an incomplete report, more than one year following the due date, may, in an action brought by the department of health and human resources, be directed by a court of competent jurisdiction to submit a complete report within a period stated by court order or be subject to sanctions for civil contempt.

(e) By the first day of August of each year, the department of health and human resources shall issue a public report providing statistics for the previous calendar year compiled from all of the reports covering that year submitted in accordance with this section for each of the items listed in subsection (a) of this section. Each report shall also provide the statistics for all previous calendar years, adjusted to reflect any additional information from late or corrected reports. The department of health and human resources shall take care to ensure that none of the information included in the public reports could reasonably

lead to the identification of any individual providing information in accordance with subsection (a), (b) or (c) of this section.

(f) The department of health and human resources may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code which alter the dates established by subdivision (3), subsection (b), or subsections (c) or (e) of this section, or consolidate the forms or reports described in this section with other forms or reports to achieve administrative convenience or fiscal savings or to reduce the burden of reporting requirements, so long as reporting forms are sent to all licensed physicians in the state at least once every year and the report described in subsection (e) of this section is issued at least once every year.

§16-2I-9. Violation remedies.

(a) Any person, medical peer review committee, firm, corporation, member of the West Virginia board of medicine or public officer may make a complaint to the board of medicine charging a physician with a violation of this article.

(b) Any physician who violates the provisions of this article is subject to sanctions by the board of medicine. For the first violation, the board of medicine shall issue a written reprimand to the physician. For the second violation, the board of medicine shall impose a civil penalty in an amount of not less than five hundred dollars nor more than one thousand dollars. For the third violation, the board of medicine shall impose a civil penalty in an amount of not less than one thousand dollars nor more than five thousand dollars. For the fourth violation, the board of medicine shall suspend the physician's license for not less than one year. For a subsequent violation, the board of medicine shall revoke the physician's license.
ARTICLE 2J. EMERGENCY CONTRACEPTION.
§16-2J-1. Legislative findings.

The Legislature finds:

(1) Crimes of sexual assault cause significant physical, emotional, and psychological trauma to the victims, and this trauma is compounded by a victim's fear of becoming pregnant and bearing a child as a result of the sexual assault;

(2) Each year over thirty-two thousand women become pregnant in the United States as the result of sexual assault and approximately fifty percent of these pregnancies end in abortion;

(3) Standards of emergency care established by the American Medical Association require that sexual assault victims be counseled about their risk of pregnancy and offered emergency contraception;

(4) Many hospitals do not make emergency contraception available to sexual assault victims;

(5) As approved for use by the federal food and drug administration, emergency contraception can significantly reduce the risk of pregnancy;

(6) By providing emergency contraception to sexual assault victims in a timely manner, the trauma of sexual assault can be significantly reduced;
§16-2J-2. Definitions.

(1) "Emergency contraception" means any drug or device approved by the federal food and drug administration that may prevent pregnancy after intercourse.

(2) "Emergency care to sexual assault victims" means medical examinations, procedures, and services provided by a health care facility to a sexual assault victim following an alleged sexual assault.

(3) "Sexual assault victim" or "victim" means a female person alleged to have been the victim of an offense defined in article eight-b, chapter sixty-one of this code.
§16-2J-3. Emergency care to include informing sexual assault victim of emergency contraception; providing emergency contraception.

(a) It shall be the standard of care for hospitals that provide emergency care to sexual assault victims in this state to:

(1) Provide each sexual assault victim with medically and factually accurate and unbiased written and oral information about emergency contraception;

(2) Orally inform each sexual assault victim of her option to be provided emergency contraception at the health care facility; and

(3) Provide emergency contraception immediately at the health care facility to each sexual assault victim who requests it: Provided, That if the emergency contraception is in a form to be orally administered, the provision must include the initial dose, which the sexual assault victim can take at the hospital, and any follow-up dose, which the sexual assault victim can self-administer later.

(b) Every hospital providing services to alleged sexual assault victims must develop a protocol that ensures that each victim of sexual assault will receive medically and factually accurate and written and oral information about emergency contraception; the indications and counter-indications and risks associated with the use of emergency contraception; and a description of how and when victims may be provided emergency contraception upon the written order of a licensed physician. The department shall approve the protocol if it finds that the implementation of the protocol would provide sufficient protection for a victim of an alleged sexual assault.

(c) Each health care facility shall ensure that each person who provides care to sexual assault victims is provided with medically and factually accurate and unbiased information about emergency contraception.

(d) In addition to any other remedies, the department of health and human resources shall respond to complaints and shall periodically determine whether health care facilities are complying with this section. The department may use all means available to verify compliance with this section. If the department determines that a health care facility is not in compliance, the department shall:

(1) Impose a fine of five thousand dollars for each sexual assault victim denied medically and factually accurate and unbiased information about emergency contraception or who is not offered or provided emergency contraception;

(2) Impose a fine of five thousand dollars for failure to comply with subsection (b) of this section. For every thirty days that the health care facility is not in compliance with subsection (c) of this section, an additional fine of five thousand dollars shall be imposed; and

(3) After two violations, suspend or revoke the certificate of authority or deny the health care facility's application for certificate of authority.

CHAPTER 33. INSURANCE.
ARTICLE 17. CONTRACEPTIVE COVERAGE.
§33-17-1. Definitions.

(1) "Covered person" means a policy holder, subscriber, certificate holder, enrollee, or other individual who is participating in, or receiving coverage under, a health insurance plan.

(2) "Health insurance plan" means any individual or group plan, policy, certificate, subscriber contract, or contract of insurance provided by a managed care plan, preferred provider agreement, or health maintenance organization that is delivered, issued, renewed, modified, amended or extended by a health insurer in this state that pays for or purchases health care services for covered persons.

(3) "Health insurer" means a disability insurer, health care insurer, health maintenance organization, accident and sickness insurer, fraternal benefit society, nonprofit hospital service corporation, health service corporation, health care service plan, preferred provider organization or arrangement, or multiple employer welfare arrangement.

(4) "Outpatient contraceptive services" means consultations, examinations, procedures and medical services, provided on an outpatient basis and related to the use of contraceptive drugs and devices to prevent pregnancy.
§33-17-2. Parity for contraceptive drugs, devices and outpatient services.

(a) Health insurance plans that provide benefits for prescription drugs or devices shall not exclude or restrict benefits to covered persons for any prescription contraceptive drug or device approved by the federal food and drug administration.

(4) Health insurance plans that provide benefits for outpatient services provided by a health care professional shall not exclude or restrict outpatient contraceptive services for covered persons.
§33-17-3. Extraordinary surcharges prohibited.

A health insurance plan is prohibited from:

(1) Imposing deductibles, copayments, other cost-sharing mechanisms, or waiting periods for prescription contraceptive drugs or devices greater than deductibles, copayments, other cost-sharing mechanisms, or waiting periods for other covered prescription drugs or devices.

(2) Imposing deductibles, copayments, other cost-sharing mechanisms, or waiting periods for outpatient contraceptive services greater than such deductibles, copayments, other cost-sharing mechanisms, or waiting periods for other covered outpatient services.
§33-17-4. Additional prohibitions.

A health insurance plan is prohibited from:

(1) Denying eligibility, continued eligibility, enrollment, or renewal of coverage to any individual because of their use or potential use of contraceptives.

(2) Providing monetary payments or rebates to covered persons to encourage them to accept less than the minimum protections available under this section.

(3) Penalizing, or otherwise reducing or limiting the reimbursement of a health care professional because such professional prescribed contraceptive drugs or devices, or provided contraceptive services.

(4) Providing incentives, monetary or otherwise, to a health care professional to induce such professional to withhold contraceptive drugs, devices or services from covered persons.
§33-17-5. Enforcement.

In addition to any remedies at common law, the insurance commissioner shall receive and review written complaints regarding compliance with this section. The insurance commissioner may use all investigatory tools available to verify compliance with this section. If the insurance commissioner determines that a health insurance plan is not in compliance with any section in this article, the commissioner shall:

(1) Impose a fine of $10,000 per violation of this section. An additional $10,000 shall be imposed for every 30 days that a health insurance plan is not in compliance; and/or

(2) Suspend or revoke the certificate of authority or deny the health insurer's application for a certificate of authority.