H. B. 2251


(By Mr. Speaker (Mr. Chambers) and Delegate Ashley)
(By Request of the Executive)
[Introduced January 26, 1995; referred to the
Committee on Government Organization then Finance.]



A BILL to amend chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article one-b, relating to the preservation and enhancement of rural health infrastructure through the authorization and regulation of rural health care networks; the creation of a rural health care network board; the assignment of staff resources from the department of health and human resources; the employment of an executive director for purposes of supervising rural health care networks; the creation of powers for the rural health care network board; the designation of the board's membership; the authorization of preliminary discussions by health care providers of rural health care network formation; the requirements for certification by the rural health care network board of rural health care network coordination agreements and rural health care networks; the procedural requirements for certification of rural health care coordination agreements and rural health care networks; the standard and criteria for approval of rural health care network coordination agreements and rural health care networks; the continuing nature of certificate of need requirements; the supervision of rural health care networks and the use of rural health care network monitors; the standards and procedures for modification or termination of approval of rural health care networks; the time limitation on accepting or granting applications related to the formation of rural health care networks; and the designation of a termination date for the rural health care network program.

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 a new article, designated article one-b, to read as follows:
ARTICLE 1B. RURAL HEALTH INFRASTRUCTURE PRESERVATION AND
ENHANCEMENT ACT.

§16-1B-1. Statement of legislative intent.

The Legislature finds that the following are true: (1) That the increasingly centralized control of health care resources threatens the continued provision of essential and primary health care services in rural areas of West Virginia; (2) that loss of such services would force residents in rural areas of West Virginia to travel long distances for primary and essential health care services, thereby placing the physical health and safety of such residents at risk; (3) that health care providers and consumers in certain threatened areas may desire to work voluntarily together to form integrated health care networks to plan, organize, and preserve their essential and primary health care services; (4) that federal law prohibits competing rural providers and consumers from voluntarily working together unless the state becomes actively involved in initially approving and regulating proposed voluntary networks; and (5) that any voluntary rural health care network formed pursuant to this article shall be of limited duration.
Nothing contained within this article is intended to require any existing or future managed care provider, or other health care provider, to comply with the terms of this article in order to operate within any market, including any rural health care market affected by the authorization of a rural health care network pursuant to the terms of this article.
§16-1B-2. Definitions.
For purposes of this article, the following terms shall have the meanings set forth in this section:
(a) "Agreement" means a rural health network care coordination agreement as that term is defined in this section;
(b) "Board" means the rural health care network board created by this article;
(c) "Department" means the department of health and human resources;
(d) "Network" means a rural health care network as that term is defined in this section;
(e) "Rural health care market" means a geographic area defined by the rural health care network board by rule within which the board finds that the continued existence of one or more health care services, provided by local health care providers within that geographic area, may be threatened, unless a rural health care network is formed;
(f) "Rural health care network" means a nonprofit corporation established by two or more health care providers in a rural health care market which exists for the purpose of implementing a rural health care network coordination agreement, as defined in this article, and which has been approved by the rural health care network board pursuant to the provisions of this article, including section nine of this article;
(g) "Rural health care network coordination agreement" means a non-exclusive agreement among two or more health care facilities or other health care providers for the sharing, allocation, or referral of patients, personnel, instructional programs, equipment, support services and facilities, or medical, diagnostic, or laboratory facilities or procedures or other services traditionally offered or purchased by health care facilities or other health care providers;
(h) "Rural primary health care provider" means an individual or entity that has traditionally served as a provider of primary health care services within a rural health care market; and
(i) "Secretary" means the secretary of the department of health and human resources.
§16-1B-3. Rural health care network board.
(a) There is hereby created the rural health care network board which shall be an agency within the department. The board shall consist of thirteen members, one of whom shall be the secretary, or his or her designee, who shall also serve as chairperson of the board. The other twelve members of the board shall be chosen by the governor with the advice and consent of the Senate and shall consist of the following:
(1) One member who is a licensed primary care physician, practicing and residing within the state;
(2) One member who is either a nurse practitioner or a physician's assistant, practicing and residing within the state;
(3) Two members who are health insurance payor administrators, employed and residing within the state;
(4) One member, residing within the state, who is a hospital administrator of a hospital within the state with fewer than one hundred patient beds;
(5) One member, residing within the state, who is a hospital administrator of a hospital within the state with one hundred patient beds or more;
(6) One member who represents the health sciences programs of the state university system;
(7) One member who represents the interests of primary care centers operating in the state;
(8) One member who represents the interests of public health providers operating in the state;
(9) One member who represents the interests of emergency medical services providers operating in the state; and
(10) Two members who are not employed in the health care field, residing within the state;
(b) The twelve members of the board other than the secretary, or his or her designee, shall each serve terms that commence on the first day of May, one thousand nine hundred ninety-five. Of the initial appointments to the board, four shall serve for one- year terms, four shall serve for two-year terms, and four shall serve for three-year terms. Thereafter, each appointment shall be for a three-year term commencing upon the expiration of the term of his or her previous term or of his or her predecessor's terms. Each board member shall, before entering upon the duties of his or her office, take and subscribe to the oath provided by section five, article IV of the Constitution of the State of West Virginia, which oath shall be filed in the office of the secretary of state.
(c) The presence of seven members of the board shall constitute a quorum for purposes of conducting the business of the board: Provided, That the concurrent judgment of seven board members when in session as the board shall be required to take any action.
§16-1B-4. Staff.
The secretary shall provide, on an as-needed basis, such staff members necessary to effectuate the provisions of this article from the existing personnel resources of the department: Provided, That the board may employ a full-time executive director.
§16-1B-5. Powers generally; budget expenses of the board.
(a) In addition to the powers granted to the board elsewhere in this article, the board may:
(1) Adopt, amend and repeal necessary, appropriate and lawful policy guidelines, rules in accordance with article three, chapter twenty-nine-a of this code: Provided, That subsequent amendments and modifications to any rule promulgated pursuant to this article and not exempt from the provisions of article three, chapter twenty-nine-a of this code may be implemented by emergency rule;
(2) Hold public hearings, conduct investigations and require the filing of information relating to matters affecting the creation and administration of rural health care networks subject to the provisions of this article and may subpoena witnesses, papers, records, documents and all other data in connection therewith. The board may administer oaths or affirmations in any hearing or investigation;
(3) Apply for, receive and accept gifts, payments, grants, and other funds and advances from the United States, the state or any other governmental body, agency or agencies or from any other private or public corporation or person (with the exception of any entity or individual subject to the provisions of this article), and enter into agreements with respect thereto, including the undertaking of studies, plans, demonstrations or projects: Provided, That any such gifts, payments or other funds shall be placed by the treasurer in a special revenue account, which funds shall be subject to reappropriation by the Legislature to such account at the end of each fiscal year;
(4) With the approval of the secretary, lease, rent, acquire, purchase, own, hold, construct, equip, maintain, operate, sell, encumber and assign rights or dispose of any property, real or personal, consistent with the objectives of the board as set forth in this article: Provided, That such acquisition or purchase of real property or construction of facilities shall be consistent with planning by the state building commissioner and subject to the approval of the Legislature;
(5) Contract and be contracted with and execute all instruments necessary or convenient in carrying out the board's functions and duties; and
(6) Exercise, subject to the limitations or restrictions herein imposed, all other powers which are reasonably necessary or essential to effect the express objectives and purposes of this article.
(b) The board shall annually prepare a budget for the next fiscal year for submission to the secretary, the governor and the Legislature which shall include all sums necessary to support the activities of the board.
(c) Each member of the board shall receive no compensation for his or her services as a member, but subject to any other applicable law regulating travel and other expenses for a state officer, he or she shall receive his or her actual and necessary travel and other expenses incurred in the performance of his or her official duties.
§16-1B-6. Board authorization of preliminary discussions by
health care providers of rural health care network formation.

(a) Health care providers that are considering the creation of a rural health care network may apply to the board, on an application form prescribed by the board, for authorization to engage in negotiations aimed at the execution of a rural health care network coordination agreement. Such applications, if granted by the board, shall be for specific and limited periods of time and for the limited purpose of drafting and executing a rural health care network coordination agreement: Provided, That no such authorization shall exceed ninety days: Provided, however, That such authorizations by the board shall not be subject to the procedural requirements set forth in section eight of this article.
(b) The board shall promulgate procedural rules, on or before the first day of July, one thousand nine hundred ninety-five, governing the process to be utilized by health care providers and the board in granting such authorizations. These rules shall include provisions requiring the active supervision and participation by the board or its staff in any discussions by health care providers pursuant to the terms of this section.
§16-1B-7. Application requirements for board certification of
rural health care network coordination agreements and rural health care networks.

The parties to a rural health care network coordination agreement may apply to the board for approval of that agreement and for approval of the rural health care network proposed by that agreement. The application shall be on a form prescribed by the board and shall include the following:
(a) A copy of the proposed rural health care network coordination agreement, and a listing of all legal and natural persons that are parties to the agreement or that are proposed participants in the rural health care network called for by the agreement;
(b) A detailed description of the nature and scope of the cooperation and joint activities contemplated by the proposed rural health care network coordination agreement;
(c) A detailed description of the assets, stock, money or other consideration passing to and among the parties to the rural health care network coordination agreement and passing to and among the parties to the proposed rural health care network;
(d) An explanation of how the standards for approval, set forth in section nine of this article, apply to the particular rural health care network proposal under consideration;
(e) An analysis of whether the health care market served by the proposed rural health care network meets the definition of rural health care market as set forth pursuant to this article;
(f) A description of how the participants in the proposed network will continue the traditional health care provider training programs that exist, at the time of the filing of the rural health care network application, within the facilities maintained by participants in the proposed rural health care network; and
(g) Any other material that the board may require, pursuant to the regulations promulgated by the board and that is reasonably related to the approval of a rural health care network coordination agreement or a rural health care network.
§16-1B-8. Procedural requirements for board certification of rural health care coordination agreements and rural health care networks.
(a) The board shall review all submitted applications and conduct such hearings as it deems necessary for the proper approval or disapproval of a rural health care network and shall hold hearings when required by provisions of this chapter or upon the written demand therefor by a person aggrieved by any act or failure to act by the board, or when required by any rule, regulation or order of the board. All hearings of the board shall be noticed and conducted in the manner set forth in section one, article five, chapter twenty-nine-a of this code. All hearings of the board shall be announced in the manner set forth in article nine-a, chapter six of this code, and such hearings shall be open to the public except as otherwise provided by said article.
(b) All pertinent provisions of article five, chapter twenty-nine-a of this code shall apply to and govern the hearing and administrative procedures in connection with and following the hearing except as specifically stated to the contrary in this article.
(c) Any hearing may be conducted by members of the board or by a hearing examiner appointed for such purpose. The board or the hearing examiner may issue subpoenas and subpoenas duces tecum which shall be issued and served pursuant to the time, fee and enforcement specifications set forth in section one, article five, chapter twenty-nine-a of this code.
(d) Following any hearing, and due deliberation thereof, and in consideration of the total record made, the board shall either grant or deny the application in writing. The written grant or denial may be accompanied by whatever findings and conclusions the board deems necessary, but the decision need not comply with the provisions of section three, article five, chapter twenty-nine-a of this code. A copy of the board's decision shall be served by first class mail on the party demanding the hearing, or upon that party's designated agent, if any.
(e) In no case shall the procedure set forth in this section take longer than one hundred twenty days to complete, such period to commence upon the date of the filing of an application.
§16-1B-9. Standard for approval by the board of rural health
care network coordination agreements and rural health care networks; criteria.

(a) The board shall approve a rural health care network coordination agreement and proposed rural health care network if it determines that such agreement and network are likely to maintain and improve the cost effectiveness, availability, quality or delivery of hospital or other health care services in the affected rural health care market and that such agreement and network are consistent with other state statutory health care policies and programs. The board shall also take into consideration, before approving a rural health care network coordination agreement and proposed rural health care network, the benefits of any reduction or elimination of competition in the affected rural health care market, and whether such benefits equal or exceed the disadvantages of any such reduction or elimination of competition. The board may impose such reasonable and related conditions and restrictions on the parties to the coordination agreement as it deems necessary to assure compliance with the standard set forth in this subsection.
(b) In determining whether a rural health care network coordination agreement and a proposed rural health care network meet the standard set forth in subsection (a) of this section, the board shall consider whether such agreement and proposed network meet the following criteria:
(1) The agreement and network serve a rural health care market, as that term is defined pursuant to this article;
(2) The agreement and network provide for a nonexclusive relationship among the health care providers participating in the agreement and network such that each provider can contract with other health care entities that are not parties to the agreement or members of the network;
(3) The agreement and network provide for the inclusion of each rural primary health care provider in the applicable rural health care market to the extent that each primary health care provider seeks to participate on reasonable terms in the agreement and network;
(4) The agreement and network seek to foster the redistribution and rearrangement of existing health care resources within an existing rural health care market, rather than the creation or construction of new programs or facilities;
(5) The agreement and network enhance the availability or quality of hospital or other health care services provided to consumers in rural health care markets in West Virginia;
(6) The agreement and network preserve hospitals or other health care facilities or providers within geographic proximity to the communities traditionally served by such hospitals, facilities or providers;
(7) The agreement and network reduce the cost of services provided by the health care providers involved;
(8) The agreement and network increase the efficiency with which services are provided by the health care providers involved;
(9) The agreement and network improve the utilization of existing health care resources and existing capital equipment in the rural health care market involved;
(10) The agreement and network reduce or eliminate unnecessary duplication of health care resources;
(11) The agreement and network provide for the exploration and utilization of technology aimed at improving the administration and delivery of health care services in the affected markets;
(12) The agreement and network are supported by health care consumers in the affected rural health care market;
(13) The agreement and network assure the maintenance of adequate and appropriate acute care services, of adequate and appropriate primary care services, of adequate and appropriate emergency medical services, and of adequate and appropriate public health services;
(14) The agreement and network expire on or before the thirtieth day of June, two thousand;
(15) The agreement and network provide for a transition of the network from state protection under the terms of this article to unprotected status on or before the thirtieth day of June, two thousand; and
(16) The agreement and network meet such other criteria as the board, by rule, shall deem appropriate or necessary.
§16-1B-10. Certificate of need requirements applicable; other
licensure requirements.

Nothing contained within this article shall be construed to immunize or exclude any person or entity from the provisions of article two-d, chapter sixteen of this code, nor shall any provision of this article be construed to limit the application of any other statute concerning the licensure of facilities, services, or professions and any activities, undertaken pursuant to a rural health care network coordination agreement or through a rural health care network, shall comply with all applicable law.
§16-1B-11. Supervision of rural health care networks by the board; network monitors; reporting.
(a) Once a rural health care network coordination agreement and a rural health care network have been approved by the board, the board shall designate a network monitor to regularly review the activities of that network. A network monitor shall have full and immediate access, upon request of the monitor or the board, to any information, materials, or personnel maintained or employed by his or her assigned rural health care network or by any participating provider in that network. Each network shall provide its network monitor with reasonable written notice prior to all meetings among officers, directors, or key personnel of the network or of any participating provider in a rural health care network. A network monitor shall have full and immediate access to all meetings among officers, directors or key personnel of the network, or of any participant provider in a rural health care network.
(b) Each rural health care network shall provide the board with a semiannual report on the thirty-first day of December and on the thirtieth day of June of each calendar year. These reports shall contain an evaluation by each network of its continuing compliance with the criteria set forth in section nine of this article, as well as any other information which the board may require by rule. The board may require, at any time, such additional reports as it deems necessary to its continuing supervision of rural health care networks approved pursuant to the provisions of this article.
§16-1B-12. Modification or termination of board approval of network; standards; procedures.
(a) The board, upon the request of any network monitor or any participant in a network, or, notwithstanding the requirements of subsection (c), section three of this article, upon its own motion approved by at least five members of the board, may modify or terminate its original approval of a rural health care network coordination agreement and a rural health care network if it determines that:
(1) The board's original approval of the agreement and network was procured by fraud or other material misrepresentation;
(2) The parties to the agreement or the participants in the network have failed, in some material respect, to comply with the terms of this article, to comply with the terms of the agreement as approved by the board, to maintain the structure of the network as approved by the board or to abide by the terms of the board's original decision approving the agreement and network;
(3) The parties to the agreement or the participants in the network have failed or refused to comply with the monitoring or reporting requirements of section eleven of this article; or
(4) The agreement or network no longer meets the standard or criteria for approval set forth in section nine of this article.
(b) If the board shall commence, based on its own motion or otherwise, a proceeding to modify or terminate an agreement or network that it originally approved, the board shall provide an opportunity for a hearing in accordance with the provisions of section eight of this article, and notice of such hearing shall be given to all parties subject to the agreement, all participants in the network and any other parties admitted to any previous proceeding involving the agreement.
(c) The termination of any approval of a rural health care network coordination agreement or rural health care network pursuant to the provisions of this section shall be prospective in application.
§16-1B-13. Time limitation on accepting or granting applications for negotiations, agreements and networks.
(a) Notwithstanding any other provision of this article to the contrary, no application for approval of preliminary network negotiations, pursuant to the provisions of section six of this article, may be accepted or granted after the thirty-first day of December, one thousand nine hundred ninety-eight.
(b) Notwithstanding any other provision of this article to the contrary, no application for approval of a rural health care network coordination agreement and rural health care network, pursuant to the provisions of section seven of this article, may be accepted or granted after the thirtieth day of June, one thousand nine hundred ninety-nine.
§16-1B-14. Termination date.
The board shall terminate on the thirtieth day of June, two thousand, unless extended by legislation before that date.





NOTE: The purpose of the bill is to establish a board, to be staffed by existing personnel, to oversee and facilitate the creation of health care networks in rural areas between existing providers and facilities. The bill preserves existing providers and facilities in such areas.

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