H. B. 2648
(By Delegates Perdue, Boggs, Hatfield, Campbell,
Mahan, Hamilton, Michael and Morgan)
[Introduced January 13, 2010; referred to the
Committee on Health and Human Resources then 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 $10,000 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
$5,000 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 Article three, chapter five-a of
this code, relating to the Division of Purchasing of the Department
of Finance and Administration,
shall does 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 by 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 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 However, an underwriting
insurance company or companies
may, at their own expense,
from
appointing appoint 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 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 disclosed 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 discussed 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 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 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 at least
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 $15,000 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.