H. B. 4546
(By Delegates Perdue, White, Boggs, Webster,
Hatfield, Delong, Campbell, Mahan,
Hamilton, Michael and Morgan)
[Introduced February 14, 2008; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §5-16-9 of the Code of West Virginia,
1931, as amended; to amend said code by adding thereto a new
section, designated §5-16B-11; to amend and reenact §9-5-15 of
said code; to amend said code by adding thereto a new article,
designated §16-29J-1, §16-29J-2
, §16-29J-3
, §16-29J-4
and
§16-29J-5
; and to amend said code by adding thereto a new
section, designated §33-4-1a, all relating to protecting
prescriber identifiable information in the same manner as
individually identifiable health information.
Be it enacted by the Legislature of West Virginia:
That §5-16-9 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that said code be amended by adding
thereto a new section, designated §5-16B-11; that §9-5-15 of said
code be amended and reenacted; that said code be amended by adding
thereto a new article, designated §16-29J-1, §16-29J-2
, §16-29J-3
,
§16-29J-4
and §16-29J-5
; and that said code be amended by adding
thereto a new section, designated §33-4-1a, all to read as follows:
CHAPTER 5. GENERAL POWERS AND DUTIES OF THE GOVERNOR, SECRETARY
OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS;
MISCELLANEOUS
AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.
ARTICLE 16. WEST VIRGINIA PUBLIC EMPLOYEES INSURANCE ACT.
§5-16-9. Authorization to execute contracts for group hospital and
surgical insurance, group major medical insurance,
group prescription drug insurance, group life and
accidental death insurance and other accidental death
insurance; mandated benefits; limitations; awarding of
contracts; reinsurance; certificates for covered
employees; discontinuance of contracts.
(a) The director is hereby given exclusive authorization to
execute such contract or contracts as are necessary to carry out
the provisions of this article and to provide the plan or plans of
group hospital and surgical insurance coverage, group major medical
insurance coverage, group prescription drug insurance coverage and
group life and accidental death insurance coverage selected in
accordance with the provisions of this article, such contract or
contracts to be executed with one or more agencies, corporations,
insurance companies or service organizations licensed to sell group
hospital and surgical insurance, group major medical insurance,
group prescription drug insurance and group life and accidental
death insurance in this state.
(b) The group hospital or surgical insurance coverage and
group major medical insurance coverage herein provided for shall
include coverages and benefits for X-ray and laboratory services in
connection with mammogram and pap smears when performed for cancer
screening or diagnostic services and annual checkups for prostate
cancer in men age fifty and over. Such benefits shall include, but
not be limited to, the following:
(1) Mammograms when medically appropriate and consistent with
the current guidelines from the United States Preventive Services
Task Force;
(2) A pap smear, either conventional or liquid-based cytology,
whichever is medically appropriate and consistent with the current
guidelines from the United States Preventative Services Task Force
or The American College of Obstetricians and Gynecologists, for
women age eighteen and over;
(3) A test for the human papilloma virus (HPV) for women age
eighteen or over, when medically appropriate and consistent with
the current guidelines from either the United States Preventive
Services Task Force or The American College of Obstetricians and
Gynecologists for women age eighteen and over;
(4) A checkup for prostate cancer annually for men age fifty
or over; and
(5) Annual screening for kidney disease as determined to be
medically necessary by a physician using any combination of blood pressure testing, urine albumin or urine protein testing and serum
creatinine testing as recommended by the National Kidney
Foundation.
(c) The group life and accidental death insurance herein
provided for shall be in the amount of ten thousand dollars for
every employee. The amount of the group life and accidental death
insurance to which an employee would otherwise be entitled shall be
reduced to five thousand dollars upon such employee attaining age
sixty-five.
(d) All of the insurance coverage to be provided for under
this article may be included in one or more similar contracts
issued by the same or different carriers.
(e) The provisions of article three, chapter five-a of this
code, relating to the Division of Purchasing of the Department of
Finance and Administration, shall not apply to any contracts for
any insurance coverage or professional services authorized to be
executed under the provisions of this article. Before entering
into any contract for any insurance coverage, as authorized in this
article, the director shall invite competent bids from all
qualified and licensed insurance companies or carriers, who may
wish to offer plans for the insurance coverage desired
: Provided,
That the director shall negotiate and contract directly with health
care providers and other entities, organizations and vendors in
order to secure competitive premiums, prices and other financial advantages. The director shall deal directly with insurers or
health care providers and other entities, organizations and vendors
in presenting specifications and receiving quotations for bid
purposes. No commission or finder's fee, or any combination
thereof, shall be paid to any individual or agent; but this shall
not preclude an underwriting insurance company or companies, at
their own expense, from appointing a licensed resident agent,
within this state, to service the companies' contracts awarded
under the provisions of this article. Commissions reasonably
related to actual service rendered for the agent or agents may be
paid by the underwriting company or companies
: Provided, however,
That in no event shall payment be made to any agent or agents when
no actual services are rendered or performed. The director shall
award the contract or contracts on a competitive basis. In
awarding the contract or contracts the director shall take into
account the experience of the offering agency, corporation,
insurance company or service organization in the group hospital and
surgical insurance field, group major medical insurance field,
group prescription drug field and group life and accidental death
insurance field and its facilities for the handling of claims. In
evaluating these factors, the director may employ the services of
impartial, professional insurance analysts or actuaries or both.
Any contract executed by the director with a selected carrier shall
be a contract to govern all eligible employees subject to the provisions of this article. Nothing contained in this article
shall prohibit any insurance carrier from soliciting employees
covered hereunder to purchase additional hospital and surgical,
major medical or life and accidental death insurance coverage.
(f) The director may authorize the carrier with whom a primary
contract is executed to reinsure portions of the contract with
other carriers which elect to be a reinsurer and who are legally
qualified to enter into a reinsurance agreement under the laws of
this state.
(g) Each employee who is covered under any contract or
contracts shall receive a statement of benefits to which the
employee, his or her spouse and his or her dependents are entitled
under the contract, setting forth the information as to whom the
benefits are payable, to whom claims shall be submitted and a
summary of the provisions of the contract or contracts as they
affect the employee, his or her spouse and his or her dependents.
(h) The director may at the end of any contract period
discontinue any contract or contracts it has executed with any
carrier and replace the same with a contract or contracts with any
other carrier or carriers meeting the requirements of this article.
(i) The director shall provide by contract or contracts
entered into under the provisions of this article the cost for
coverage of children's immunization services from birth through age
sixteen years to provide immunization against the following illnesses: Diphtheria, polio, mumps, measles, rubella, tetanus,
hepatitis-b, haemophilus influenza-b and whooping cough.
Additional immunizations may be required by the Commissioner of the
Bureau for Public Health for public health purposes. Any contract
entered into to cover these services shall require that all costs
associated with immunization, including the cost of the vaccine, if
incurred by the health care provider, and all costs of vaccine
administration, be exempt from any deductible, per visit charge
and/or copayment provisions which may be in force in these policies
or contracts. This section does not require that other health care
services provided at the time of immunization be exempt from any
deductible and/or copayment provisions.
(j) As permitted under Section 264(c) (2) of Federal Law
104-191, West Virginia requires that any and all prescriber
identifiable information shall be included within the definition of
individually identifiable health information and constitutes an
additional category of protected health information pursuant to
article twenty-nine-j of chapter sixteen.
ARTICLE 16B. WEST VIRGINIA CHILDREN'S HEALTH INSURANCE PROGRAM.
§5-16B-11. Confidentiality of prescriber information.
As permitted under Section 264(c)(2) of Federal Law 104-191,
West Virginia requires that any and all prescriber identifiable
information shall be included within the definition of individually
identifiable health information and constitutes an additional category of protected health information pursuant to article
twenty-nine-j of chapter sixteen.
CHAPTER 9. HUMAN SERVICES.
ARTICLE 5. MISCELLANEOUS PROVISIONS.
§9-5-15. Medicaid program; preferred drug list and utilization
review.
The Legislature finds that it is a public necessity that trade
secrets, rebate amounts, percentage of rebate, manufacturer's
pricing and supplemental rebates that are contained in records, as
well as any meetings at which this information is negotiated or
discussed need confidentiality to insure the most significant
rebates available for the state. Information pertaining to similar
agreements with the federal government and negotiated by
pharmaceutical manufacturers is confidential pursuant to 42 U.S.C.
1396r-8. A rebate as a percentage of average manufacture price is
confidential under federal law and the federal rebate could be made
known if not protected by state law. Because of the protection
afforded by federal law, if this information is not protected by
state law, manufacturers will not be willing to offer a rebate in
West Virginia. Further, the Legislature finds that the number and
value of supplemental rebates obtained by the department will
increase, to the benefit of Medicaid recipients, if information
related to the supplemental rebates is protected in the records of
the department and in meetings in which this information is disclosed because manufacturers will be assured they will not to be
placed at a competitive disadvantage by exposure of this
information.
Further, as permitted under Section 264(c)(2) of Federal Law
104-191, West Virginia requires that any and all prescriber
identifiable information shall be included within the definition of
individually identifiable health information and constitutes an
additional category of protected health information pursuant to
article twenty-nine-j of chapter sixteen.
The Secretary of the Department of Health and Human Resources
has the authority to develop a preferred drug list, in accordance
with federal law, which shall consist of federally approved drugs.
The department, through administration of the Medicaid program, may
reimburse, where applicable and in accordance with federal law,
entities providing and dispensing prescription drugs from the
preferred drug list.
The secretary of the department is hereby authorized to
negotiate and enter into agreements with pharmaceutical
manufacturers for supplemental rebates for Medicaid reimbursable
drugs.
The provisions of article three, chapter five-a of this code
shall not apply to any contract or contracts entered into under
this section.
Trade secrets, rebate amounts, percentage of rebate, manufacturer's pricing and supplemental rebates which are contained
in the department's records and those of its agents with respect to
supplemental rebate negotiations and which are prepared pursuant to
a supplemental rebate agreement are confidential and exempt from
all of article one, chapter twenty-nine-b of this code.
Those portions of any meetings of the committee at which trade
secrets, rebate amounts, percentage of rebate, manufacturer's
pricing and supplemental rebates are disclosed for discussion or
negotiation of a supplemental rebate agreement are exempt from all
of article nine-a, chapter six of this code.
The secretary of the department will monitor and evaluate the
effects of this provision on Medicaid recipients, the Medicaid
program, physicians and pharmacies.
The commissioner shall implement a drug utilization review
program to assure that prescribing and dispensing of drug products
result in the most rational cost-effective medication therapy for
Medicaid patients.
Any moneys received in supplemental rebates will be deposited
in the medical services fund established in section two, article
four, chapter nine of this code.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 29J. PRESCRIBER-IDENTIFIABLE INFORMATION PROTECTION ACT.
§16-29J-1. Purpose.
The purpose of this article is to require that any and all prescriber identifiable information, with regard to any
prescription for which payment may be made under any West Virginia
government health plan or West Virginia health plan,
shall be
included within the definition of individually identifiable health
information and constitutes an additional category of protected
health information.
§16-29J-2. Short title.
This article may be cited as the "Prescriber Identifiable
Information Protection Act."
§16-29J-3. Definitions.
For the purposes of this article:
(a) "HIPAA" means Federal Public Law 104-191, the Health
Insurance Portability and Accountability Act of 1996.
(b) "HIPAA Privacy Rule" means the regulations promulgated
under Section 264(c) of HIPAA, currently found at 67 Federal
Regulation 53182 (Aug. 14, 2002).
(c) "Individually identifiable health information" and
"protected health information" shall be as described in the HIPAA
Privacy Rule.
(d) "West Virginia Government Health Plan" means any health or
insurance program for which the State of West Virginia is a payor,
in full or in part. State health plans shall include, but not be
limited to, Public Employees Insurance Program, Medicaid, the
Children's Health Insurance Program; Regional Jail and Correctional Facilities and Juvenile Facilities.
(e) "West Virginia Health Plan" means any person licensed by
West Virginia pursuant to chapter thirty-three of this code to
provide health insurance or health benefits within the state.
(f) "Prescriber" means any person authorized under applicable
law to write prescriptions in West Virginia.
(g) "Prescriber identifiable information" means any record or
information which identifies or enables any person to potentially
determine the identity of a prescriber with regard to any
prescription for which payment may be made under any West Virginia
government health plan or West Virginia health plan.
§16-29J-4. Enactment.
(a) The West Virginia Health Care Authority shall ensure that
patient specific protected health information, including
"prescriber identifiable information," be disclosed only in
accordance with the patient's authorization or best interest to
those having a need to know, in compliance with state
confidentiality laws and the Health Insurance Portability and
Accountability Act of 1996 and any amendments and regulations under
the act.
(b) The health information, including "prescriber identifiable
information," data and records of the West Virginia Health
Information Network shall be exempt from disclosure under the
provisions of chapter twenty-nine-b of this code.
§16-29J-5. Enforcement.
Each violation of this section shall be punishable by a civil
penalty of up to fifteen thousand dollars per occurrence.
CHAPTER 33. INSURANCE.
ARTICLE 4. GENERAL PROVISIONS.
§33-4-1a. Confidentiality of prescriber information.
As permitted under Section 264(c)(2) of Federal Law 104-191,
West Virginia requires that any and all prescriber identifiable
information shall be included within the definition of individually
identifiable health information and constitutes an additional
category of protected health information pursuant to article
twenty-nine-j of chapter sixteen.
NOTE: The purpose of the bill is to protect the privacy of a
person's prescription information.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.