ENGROSSED
COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 469
(By Senators Tomblin, Mr. President, and Boley,
By Request of the Executive)
____________
[Originating in the Committee on Finance;
reported March 2, 1995]
____________
A BILL to repeal articles four-b and four-c, chapter nine of the
code of West Virginia, one thousand nine hundred thirty-one,
as amended; to amend and reenact section two, article one of
said chapter; to amend and reenact section nine, article two
of said chapter; to further amend said article by adding
thereto three new sections, designated sections nine-a,
nine-b and nine-c; to amend and reenact section two, article
four of said chapter; to amend and reenact section two-b,
article four-a of said chapter; to amend and reenact section
twenty-a, article thirteen-a, chapter eleven of said code;
to amend and reenact sections one and three, article
twenty-six of said chapter; to amend and reenact section
thirty-two, article twenty-seven of said chapter; to amend and reenact sections two, three, five and six, article two-
d, chapter sixteen of said code; to further amend said
article by adding thereto a new section, designated section
three-a; and to amend and reenact section four, article
twenty-nine-c of said chapter, all relating generally to the
state's medicaid program; repealing the physician/medical
practitioner provider medicaid enhancement board and health
care provider medicaid enhancement board; defining certain
terms relating to the human services programs, including the
medicaid program; directing the secretary to expand the aged
and disabled waiver program and to decrease or eliminate
other optional programs if additional funding is needed for
that expansion; authorizing the secretary to execute
contracts for professional health care, managed care and
actuarial services; designating health care providers as
qualified providers of service; prohibiting exclusion of
licensed health care providers; prohibiting offers of gifts
of value as marketing techniques directed toward medicaid
managed care enrollees; requiring the consideration of
essential community providers as participating providers;
mandating a medicaid patient-managed care pilot program;
authorizing the department to seek a federal waiver for the
program; establishing contract requirements for benefits;
requiring certain information for enrollees; authorizing the
promulgation of rules relating to the program; directing
departmental neutrality in evaluating medicaid managed care programs; providing for the transfer of deposits into the
medical services fund of the taxes collected under the West
Virginia health care provider tax act of 1993 and the taxes
collected from providers of health care items or services
under the severance and business privilege tax act of 1993;
requiring the medical services fund to be used to make
expenditures for personal services, employee benefits,
current expenses, repairs and alterations and health care
provider payments of the division of human services for the
payment of medical services to recipients of specified
classes of welfare assistance; revising the expansion of
medicaid coverage to children; permitting licensure of
behavioral health facilities developing services for child
and adolescent medicaid recipients currently placed out-of-
state; prohibiting out-of-state placement of children or
adolescents for mental and behavioral health services, if
those services are available in-state; changing legislative
findings; defining certain terms for purposes of certificate
of need; imposing moratoriums on the approval of
certificates of need for new home health, hospice, mental
and behavioral health programs and sites, and on the
implementation of services pursuant to an existing
certificate of need; providing for certain exceptions to
moratorium; authorizing a rural primary care hospital to
convert acute care beds into a distinct-part nursing
facility; authorizing medicaid payment for skilled nursing and intermediate care beds in those hospitals; authorizing
the health care cost review authority to impose a moratorium
on certificate of need applications when the applicable
standards are obsolete or nonexistent; authorizing the
health care cost review authority to amend the certificate
of need standards when necessary; requiring a notice and
public comment period; requiring submission to and approval
by the governor on any proposed amendments or modifications
to those standards; establishing minimum criteria for
certificate of need reviews for personal care services; and
directing the legislative task force on uncompensated health
care and medicaid expenditures to monitor implementation of
the managed care program and study the feasibility of
changing the provider tax structure.
Be it enacted by the Legislature of West Virginia:
That articles four-b and four-c, chapter nine of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
be repealed; that section two, article one of said chapter be
amended and reenacted; that section nine, article two of said
chapter be amended and reenacted; that said article be further
amended by adding thereto three new sections, designated sections
nine-a, nine-b and nine-c; that section two, article four of said
chapter be amended and reenacted; that section two-b, article
four-a of said chapter be amended and reenacted; that said
article be further amended by adding thereto a new section,
designated section three; that section twenty-a, article thirteen-a, chapter eleven of said code be amended and reenacted;
that sections one and three, article twenty-six of said chapter
be amended and reenacted; that section thirty-two, article
twenty-seven of said chapter be amended and reenacted; that
sections two, three, five and six, article two-d, chapter sixteen
of said code be amended and reenacted; that said article be
further amended by adding thereto a new section, designated
section three-a; and that section four, article twenty-nine-c of
said chapter be amended and reenacted, all to read as follows:.
CHAPTER 9. HUMAN SERVICES.
ARTICLE 1. LEGISLATIVE PURPOSE AND DEFINITIONS.
§9-1-2. Definitions.
The following words and terms when used in this chapter
shall have the meaning hereafter ascribed to them unless the
context clearly indicates a different meaning, and any amendment
of this section shall apply to any verdict, settlement,
compromise or judgment entered after the effective date of the
amendment.
(a) The term "department" means the state division of human
services.
(b) The term "commissioner" means the commissioner of human
services.
(c) The term "federal-state assistance" means and includes:
(1) All forms of aid, care, assistance and services to or on
behalf of persons, which are authorized by, and who are
authorized to receive the same under and by virtue of, subchapters one, four, five, ten, fourteen, sixteen, eighteen and
nineteen, chapter seven, Title 42, United States Code, as those
subchapters have heretofore been and may hereafter be amended,
supplemented and revised by acts of Congress, and as those
subchapters so amended, supplemented and revised have heretofore
been and may hereafter be supplemented by valid rules and
regulations promulgated by authorized federal agents and
agencies, and as those subchapters so amended, supplemented and
revised have heretofore been and may hereafter be supplemented by
rules and regulations promulgated by the state division of human
services, which division rules and regulations shall be
consistent with federal laws, rules and regulations, but not
inconsistent with state law; and (2) all forms of aid, care,
assistance and services to persons, which are authorized by, and
who are authorized to receive the same under and by virtue of,
any act of Congress, other than the federal Social Security Act,
as amended, for distribution through the state division of human
services to recipients of any form of aid, care, assistance and
services to persons designated or referred to in subdivision (1)
of this subsection and to recipients of state assistance,
including by way of illustration, surplus food and food stamps,
which Congress has authorized the secretary of agriculture of the
United States to distribute to needy persons.
(d) The term "federal assistance" means and includes all
forms of aid, care, assistance and services to or on behalf of
persons, which are authorized by, and who are authorized to receive the same under and by virtue of, any act of Congress for
distribution through the state division of human services, the
cost of which is paid entirely out of federal appropriations.
(e) The term "state assistance" means and includes all forms
of aid, care, assistance, services and general relief made
possible solely out-of-state, county and private appropriations
to or on behalf of indigent persons, which are authorized by, and
who are authorized to receive the same under and by virtue of,
state division of human services' rules and regulations.
(f) The term "welfare assistance" means the three classes of
assistance administered by the state division of human services,
namely: Federal-state assistance, federal assistance and state
assistance.
(g) The term "indigent person" means any person who is
domiciled in this state and who is actually in need as defined by
department rules and regulations and has not sufficient income or
other resources to provide for such need as determined by the
state division of human services.
(h) The term "domiciled in this state" means being
physically present in West Virginia accompanied by an intention
to remain in West Virginia for an indefinite period of time and
to make West Virginia his or her permanent home. The state
division of human services may by rules and regulations
supplement the foregoing definition of the term "domiciled in
this state," but not in such a manner as would be inconsistent
with federal laws, rules and regulations applicable to and governing federal-state assistance.
(i) The term "medical services" means medical, surgical,
dental and nursing services, and other remedial services
recognized by law, in the home, office, hospital, clinic and any
other suitable place, provided or prescribed by persons permitted
or authorized by law to give such services; such services to
include drugs and medical supplies, appliances, laboratory,
diagnostic and therapeutic services, nursing home and
convalescent care and such other medical services and supplies as
may be prescribed by such persons.
(j) The term "general relief" means cash or its equivalent
in services or commodities expended for care and assistance to an
indigent person other than for care in a county infirmary, child
shelter or similar institution.
(k) The term "physician provider" means an allopathic or
osteopathic physician, rendering services within this state and
receiving reimbursement, directly as an individual provider or
indirectly as an employee or agent of a medical clinic,
partnership or other business entity.
(l) The term "nurse practitioner" means a registered nurse
qualified by virtue of his or her education and credentials and
approved by the West Virginia board of examiners for registered
professional nurses to practice as an advanced practice nurse
independently or in a collaborative relationship with a
physician.
(m) The term "nurse-midwife" means a qualified professional nurse registered with the West Virginia board of examiners for
registered professional nurses who by virtue of additional
training is specifically qualified to practice nurse-midwifery
according to the statement of standards for the practice of
nurse-midwifery as set forth by the American college of
nurse-midwives.
(n) The term "physician assistant" means an assistant to a
physician who is a graduate of an approved program of instruction
in primary health care or surgery, has attained a baccalaureate
or master's degree, has passed the national certification
examination and is qualified to perform direct patient care
services under the supervision of a physician.
(o) The term "secretary" means the secretary of the
department of health and human resources.
(p) The term "single state agency" means the single state
agency for medicaid in this state.
(q) The term "ambulance service provider" means a person
rendering ambulance services within this state and receiving
reimbursement, directly as an individual provider or indirectly
as an employee or agent of a medical clinic, partnership or other
business entity.
(r) The term "general health care provider" means an
audiologist, a behavioral health center, a chiropractor, a
community care center, an independent laboratory, an independent
X-ray service, an occupational therapist, an optician, an
optometrist, a physical therapist, a podiatrist, a private duty nurse, a psychologist, a rehabilitative specialist, a respiratory
therapist and a speech therapist rendering services within this
state and receiving reimbursement, directly as an individual
provider or indirectly as an employee or agent of a medical
clinic, partnership or other business entity.
(s) The term "inpatient hospital services provider" means a
provider of inpatient hospital services for purposes of Section
1903(w) of the Social Security Act.
(t) The term "intermediate care facility for the mentally
retarded services provider" means a provider of intermediate care
facility services for the mentally retarded for purposes of
Section 1903(w) of the Social Security Act.
(u) The term "nursing facility services provider" means a
provider of nursing facility services for purposes of Section
1903(w) of the Social Security Act.
(v) The term "outpatient hospital service provider" means a
hospital providing preventative, diagnostic, therapeutic,
rehabilitative or palliative services that are furnished to
outpatients.
(w) The term "subrogation" means a statutory right of
reimbursement in which the principles precedent for recovery at
equity or common law do not apply, so that reimbursement is given
first priority regardless of whether the injured party is made
whole or whether other creditors are paid.
(x) The term "full reimbursement" means the department of
health and human resources' right of recovery of all amounts of medical assistance paid by medicaid on behalf of the recipient
regardless of whether the recipient is made whole.
(y) The term "estate" means all real and personal property
and other assets included within the individual's estate as
defined in this state's probate law.
(z) The term "services" means nursing facility services,
home and community-based services, and related hospital and
prescription drug services for which an individual received
medicaid medical assistance.
(aa) The term "essential community provider means,
facilities, entities or individual practitioners which provide a
full range of primary/acute care services to the population of a
medically underserved area or population. These providers are
the infrastructure of care to the uninsured, underinsured,
elderly and high risk populations and ensure access to preventive
and acute care for these individuals. These entities include:
County aging programs offering personal care services, primary
care centers designated by the department of health and human
resources and small and rural hospitals.
ARTICLE 2. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, AND OFFICE
OF COMMISSIONER OF HUMAN SERVICES; POWERS, DUTIES
AND RESPONSIBILITIES GENERALLY.
§9-2-9. Secretary to develop medicaid monitoring and case
management.
(a) On or before the first day of January, one thousand nine
hundred ninety-four, the secretary of the department of health and human resources shall:
(1) Develop a managed care system to monitor the services
provided by the medicaid program to individual clients;
(2) Develop an independent referral service, including the
review of individual cases for abuses of the program; and
(3) Develop a schedule for implementation of the managed
care and independent referral system. The managed care system
shall focus on, but not be limited to, the behavioral health and
mental health services.
(b) In addition thereto, and in accordance with applicable
federal medicaid laws, the secretary shall prepare
recommendations, to be submitted to the joint committee on
government and finance on or before the first day of January, one
thousand nine hundred ninety-four. In developing recommendations
the secretary shall consider as options the following:
(1) Review of medicaid services which are optional under
federal medicaid law and identification of services to be
retained, reduced or eliminated;
(2) The elimination, reduction or phase-out of: (i)
Services which are not generally available to West Virginia
citizens not covered under the state's medicaid program; or (ii)
services which are not generally covered under group policies of
insurance made available to employees of employers within the
state;
(3) The elimination or reduction of services, or reduction
of provider reimbursement rates,
for
identified services of marginal utility;
(4) Higher reimbursement rates for primary and preventive
care;
(5) Changes in fee structure, which may include a system of
prospective payments, and may include establishment of global
fees for identified services or diagnoses including maternity
care;
(6) Utilization caps for certain health care procedures;
(7) Restriction of coverage for cosmetic procedures;
(8) Identification of excessive use of certain health care
procedures by individuals and a policy to restrict excessive use;
(9) Identification of services which reduce the need for
more costly options for necessary care and retention or expansion
of those programs;
(10) Identification of services for which preauthorization
should be requirement for medicaid reimbursement;
(11) Recommendations relating to the development of a
demonstration project on long-term care, which demonstration
project may be limited to patients with alzheimer's disease;
(12) A policy concerning the department's procedures for
compliance, monitoring and inspection; and
(13) Such other options as may be developed.
(c) Beginning in fiscal year one thousand nine hundred
ninety-six, the secretary is directed to increase the number of
individuals served in the aged and disabled waiver program to no
less than five thousand. The secretary shall complete all federal requirements necessary to implement this section,
including the submission of any amendment to the state medicaid
plan, immediately following the effective date of this section.
Additional moneys for the medicaid program may not be
appropriated for this program and the secretary is directed to
decrease or eliminate existing optional programs to the extent
necessary to implement the provisions of this section.
(d) The secretary shall utilize in-state health care
facilities for inpatient treatment when such facilities are
available. Prior authorization, consistent with applicable
federal law, shall be required for out-of-state inpatient
treatment.
(e) The secretary shall report to the joint committee on
government and finance on the development and implementation of
medicaid programs that provide incentives to working persons.
The secretary shall consider: Subsidies for low income working
persons; individual or small employer buy-ins to the state
medicaid fund; prospective payment systems for primary care
physicians in undeserved areas; and a system to improve
monitoring of collections, expenditures, service delivery and
utilization.
(f) The secretary shall report quarterly to the joint
committee on government and finance regarding provider and
facility compliance with federal and state medicaid laws,
including, but not limited to, the following: The number of
inspections conducted during the previous quarter; description of programs, services and facilities reviewed; findings; and
recommendations for corrections.
§9-2-9a. Authorization to execute contracts for professional
health care, managed care and actuarial services.
(a) The secretary is hereby given exclusive authorization to
execute such contract or contracts as are necessary to implement
professional health care, managed care, actuarial and independent
referral systems for the medicaid program.
(b) The provisions of article three, chapter five-a of this
code, relating to the division of purchasing of the department of
administration, shall not apply to any contract or contracts for
professional health care, managed care, actuarial and independent
referral services for the medicaid program. Before entering into
any contracts for any professional health care, managed care,
actuarial and independent referral systems for the medicaid
program, as herein authorized, the secretary shall invite
competent sealed bids from all qualified providers of said
services. A health care provider is hereby deemed a qualified
provider of services for purposes of this section. The secretary
shall develop specifications and receive proposals and quotations
for bid purposes and may employ, without the requirement of
bidding, a consultant for developing the specifications and any
consultant so employed shall be disqualified from subsequent
bidding. Bids shall be obtained by public notice and by
soliciting sealed bids by sending requests to prospective
providers. The secretary shall award such contract or contracts on a competitive bid basis. In awarding the contract or
contracts, the secretary shall take into consideration the
experience of the offering provider. In awarding contracts to
implement professional health care and managed care, the
secretary may not exclude from participation any health provider
licensed to provide health services directly to the public.
(c) The provisions of chapter thirty-three of this code,
relating to the licensing and regulation of insurance companies,
shall apply to any entity contracting with the secretary to serve
as the department of health and human resources' managed care
organization for the medicaid managed behavioral health care
program. Health care providers shall not be excluded from the
selection as a managed care organization.
(d) Any contract or contracts executed by the secretary for
the provision of managed care for recipients in the medical
assistance program of the Social Security Act shall contain a
prohibition on marketing and recruiting techniques which involve
an offer of gifts of value to the prospective managed care
enrollee. Such offers shall be considered bribery and if it
comes to the attention of the secretary that an officer, employee
or agent of a health maintenance organization, managed care
organization or other managed care entity may be violating the
provisions of this subsection, the matter shall be referred to
the medicaid fraud control unit for investigation and referral
for prosecution pursuant to the provisions of article seven of
this chapter.
(e) The secretary may at the end of any contract period
discontinue any contract or contracts executed pursuant to this
article.
(f) No essential community provider shall be denied the
opportunity to become a participating provider in any medicaid
physical health managed care plan. If an essential community
provider requests the opportunity to become a participating
provider in any medicaid managed care plan for physical health
the secretary shall conduct reasonable and good faith
negotiations with essential community providers. If the
essential community provider meets the qualifications and
standards established by the secretary then the secretary shall
approve such provider as a participating provider:
Provided,
That any essential community provider shall meet indigent/charity
care guidelines established by the department and submit audited
financial reports to the secretary detailing their
indigent/charity care load.
§9-2-9b. The West Virginia medicaid patient-managed care
program.
(a) In addition to medicaid health-maintenance-organization-
managed care, the department of health and human resources shall
implement a pilot program for medicaid patient-managed care. The
goal of this program shall be to provide, in a cost-effective
manner, access to privately delivered health insurance coverage
for residents of this state who qualify for medicaid benefits and
are not included in any other waiver program. This pilot program shall involve no less than five thousand medicaid recipients. On
or before the first day of July, one thousand nine hundred
ninety-six, the secretary of the department of health and human
resources shall:
(1) Develop and prepare for implementation of the West
Virginia medicaid patient-managed care voucher program pursuant
to the provisions of this section. This program shall primarily
be a publicly financed voucher system providing access to
privately delivered health insurance coverage for eligible
medical assistance recipients. Research regarding implementation
of the program is to be funded with public or private grant
moneys;
(2) Develop, in cooperation with the commissioner of
insurance, a medical savings account program to be used in
conjunction with the patient-managed care program; and
(3) Request a waiver under Section 1115(b) of the federal
Social Security Act from the United States department of health
and human services to establish the patient-managed care program
on a multicounty basis. The waiver proposal shall include a
request for federal financial participation moneys for payment of
insurance premiums; enrollment fees for prepaid health care
delivery plans; and deposits to individual or family accounts
established for this program.
(b) Within ninety days following federal approval of the
waiver, the secretary shall:
(1) Establish the West Virginia medicaid patient-managed care pilot program within one or more distinct geographic
regions;
(2) Select at least three insurers in each region to
participate in the program. The insurers shall be selected
through a competitive bidding process, which is limited to, those
entities meeting the certification requirements of the provisions
of chapter thirty-three of this code, unless those requirements
are excluded by the provisions of this section; and
(3) Issue proof of eligibility to each person meeting the
eligibility requirements for program participation. Proof of
eligibility entitles the person to coverage under any health
insurance policy or contract offered in accordance with this
subsection.
(c) When insurance coverage is issued, the insurer shall
submit the proof of eligibility and a request for payment of the
premium to the department and the department shall pay the
premium within thirty days.
(d) The health insurance policies and contracts offered by
selected insurers shall be provided in accordance with the
following conditions:
(1) The policies and contracts are not subject to any
previous state-mandated benefits;
(2) Each policy and contract shall include, but not be
limited to the following benefits: Inpatient/outpatient hospital
services; patient training and supplies for the treatment and
control of diabetes mellitus; rural health clinic services; laboratory and X-ray services, including mammography; nurse
practitioners' services; home health services for individuals
twenty-one years of age and older; family planning services and
supplies; physicians' services; prenatal care and nurse-midwife
services; prescription drugs; childhood immunizations; early and
periodic screening, diagnosis and treatment services for
individuals twenty years of age and younger; and thirty days'
inpatient care coverage for mental health, mental retardation and
substance abuse:
Provided, That four days of intermediate care
coverage may be substituted for an inpatient day;
(3) Every effort shall be made to include the following
benefits:
(A) Chiropractic, podiatric and optometric services;
(B) Dental services, limited to surgical procedures,
emergency services and medically necessary palliative treatment,
which includes any diagnostic procedures, restorations or
extractions related to the need for palliative treatment; and
(C) Ambulance services, limited to medically necessary
emergency transportation;
(4) The insurer shall not impose any waiting period for
benefits, or otherwise reduce or restrict benefits, for any claim
that is the result of a high-risk condition;
(5) The insurer is to provide the individual with
information regarding: Coverage provisions and exclusions; prior
authorization or other review requirements; financial
arrangements that would limit the services offered, restrict referral options and establish incentives not to deliver certain
services; plan limitations and their affect on the individual
enrolled in that plan; and satisfaction standards for individuals
served by the plan;
(6) The insurer shall establish a utilization review and
claims audit process. Individuals will be encouraged to review
submitted claims and report any false claims to the insurer.
Discovery and reporting of a false claim shall entitle the
individual to payment by the insurer of an amount equal to
fifteen percent of the cost of the service or item falsely
reported. The insurer may collect this amount from the health
care provider;
(7) The department shall pay copayments and deductibles,
from the accounts established under this program, directly to the
health care provider for services rendered to the individuals;
and
(8) All information pertaining to an individual's medical
care is confidential, except the department shall have access to
information necessary to carry out its duties.
(e) Patients shall have a choice of physicians. The voucher
may be used by the individual to purchase any type of health
insurance or to participate in any health plan, including a
traditional insurance plan, a nonprofit professional health
service plan, a health maintenance organization, a risk-assuming
preferred provider organization, a preferred provider
organization with a "gatekeeper" role for primary care physicians organized and regulated as a health services corporation, a
benefit payment schedule plan or a fraternal benefit society:
Provided, That nothing shall prohibit the insurers who
successfully bid from contracting with local health departments
to provide all preventive and health services including: Home
health; immunizations; family planning; disease and accident
control; control of communicable and sexually transmitted
diseases; laboratory testing; health education and promotion;
case management of pregnant women, newborn infants and new
mothers; preventive health screenings including those for breast
and cervical cancer; and early periodic screenings, diagnosis and
treatment of children.
(f) The department shall establish individual and family
accounts, where more than one individual in a family is eligible
for participation, and deposit an amount equal to the capitation
rate in a medicaid health-maintenance-organization managed care.
Under no circumstances shall any medicaid managed care voucher
exceed the capitation rate for similar participants in medicaid
health-maintenance-organization-managed care. If the individual
is a minor, a parent or guardian shall be designated as
responsible for the account.
(g) Money in an account may be used to pay the deductibles
and copayments required to be paid under the contract and other
medical costs not covered by the contract, but which are
authorized to be paid by the individual.
(h) Nothing in this section is intended to limit the individual from supplementing the voucher to purchase a more
costly or comprehensive plan.
(i) After the anniversary date of the establishment of the
account, the department shall do the following:
(1) Except as provided in subsection (j) of this section,
give a voucher to the individual in an amount equal to the
balance remaining in the account after payment of all copayments
and deductibles required to be paid for health care services
rendered before the anniversary date. A voucher given under this
subdivision may be used for any of the following purposes:
(A) Education for one or more individuals covered by the
account;
(B) Job training services for one or more individuals
covered by the account;
(C) Child care services for one or more individuals covered
by the account;
(D) Long-term care expenses;
(E) The first-time purchase of a home; and
(F) Other expenses described in rules adopted by the
department.
(2) Except as provided in subsection (l) of this section,
credit to the account the amount established by the capitation
rate for health maintenance organization managed care.
(j) An individual may choose to leave the balance of the
amount in the account.
(k) The department may not pay the following for an individual participating in this program, other than from the
account: (1) Copayments; (2) deductibles; or (3) other health
care costs not covered by the contract.
(l) The department may close an account if the individual
becomes ineligible to participate in the medicaid program.
(m) The state may pool the money in all accounts established
under this section for investment purposes. Interest from
investments of money in the accounts shall be deposited in the
medical services trust fund established pursuant to the
provisions of section two-a, article four-a of this chapter.
(n) Employers who hire individuals participating in this
program may provide health care coverage for that individual by
buying into the remaining term of the individual's health plan.
The amount of the plan shall be pro-rated for the number of days
remaining in the current coverage.
(o) If an employer offers health care coverage to employees,
the employer shall extend coverage to, or continue coverage of,
an employee or an employee's dependents who are eligible to
receive benefits provided under this section.
(p) Medicaid recipients who have been rejected previously by
two or more insurers due to high-risk conditions shall be
included into the state high-risk pool. The difference between
the value of the voucher and the high-risk pool premium shall be
paid by the state medicaid program.
(q) An employer shall not fail to extend coverage to or
continue coverage of an employee or his dependents under any health care coverage provided by the employer solely to render
the employee or dependent eligible to receive benefits provided
under this program.
(r) The secretary is responsible for monitoring the
operation of the program and providing information to insurers
and medicaid eligible individuals regarding the benefits of
program participation.
(s) The secretary shall establish a mechanism for
administering the medical savings accounts, including
investigating the feasibility of private financial institutions
serving as repositories and administrators of the accounts.
(t) On or before the first day of January, one thousand nine
hundred ninety-seven, the secretary shall submit a program
evaluation report to the governor and the Legislature, which
shall include, but not be limited to, an independent analysis of
the program's effectiveness in delivery quality health services
in a cost effective manner.
(u) The secretary shall promulgate rules, pursuant to the
provisions of article three, chapter twenty-nine-a of this code,
to implement the provisions of this section.
(v) Within ninety days of federal approval of the waiver
application, the department shall promulgate rules to provide for
the fair, reasonable and equitable administration of the program,
including provisions relating to determining eligibility under
the program, issuance of proof of eligibility
certificates/vouchers by the department, annual determinations of the reimbursable premium account and procedures for the
reimbursement of selected insurers.
§9-2-9c. Department neutrality in managed care programs.
The department of health and human resources is directed to
remain neutral in developing all programs for medicaid managed
care. The Legislature intends for health maintenance
organizations, vouchers and gatekeeping to be regarded as equally
viable future options for the medicaid system on a state-wide
basis, and directs the department to take every precaution to
assure future decisions are based on valid facts and experiences
rather than invalid feelings and beliefs. All medicaid managed
care programs are to receive relatively equivalent resources,
personnel and staff time. With the outcome uncertain, the
department should not prejudge the results or prematurely commit
itself to any of the managed care programs. All programs are to
be pursued to the fullest extent possible and all shall be
objectively evaluated.
ARTICLE 4. STATE ADVISORY BOARD; MEDICAL SERVICES FUND; ADVISORY
COUNCIL; GENERAL RELIEF FUND.
§9-4-2. Medical services fund.
The special fund known as the state of West Virginia public
assistance medical services fund established by chapter one
hundred forty-three, acts of the Legislature, regular session,
one thousand nine hundred fifty-three, as amended by chapter two,
acts of the Legislature, first extraordinary session, one
thousand nine hundred sixty, and chapter forty-nine, acts of the Legislature, regular session, one thousand nine hundred
sixty-six, shall be continued in accordance with the provisions
of this section so long as the same may be required by federal
laws, rules and regulations applicable to federal-state
assistance and thereafter so long as the commissioner shall deem
such fund to be otherwise necessary or desirable, and henceforth
such special fund shall be known as the division of human
services medical services fund, hereinafter referred to as the
fund.
The fund shall consist of payments made into the fund out-
of-state appropriations for medical services to recipients of
specified classes of welfare assistance, taxes deposited under
subsection (a), section twenty-a, article thirteen-a, chapter
eleven of this code, commonly known as the severance and business
privilege tax act of 1993, and under section thirty-two, article
twenty-seven of said chapter, commonly known as the West Virginia
health care provider tax act of 1993, and such federal
grants-in-aid as are made available for specified classes of
welfare assistance. Any balance in the fund at the end of any
fiscal year shall remain in the fund and shall not expire or
revert. Payments shall be made out of the fund upon requisition
of the commissioner by means of a warrant signed by the auditor
and treasurer.
Recipients of those classes of welfare assistance as are
specified by the division of human services, consistent with
applicable federal laws, rules and regulations, shall be entitled to have costs of necessary medical services paid out of the fund,
in the manner and amounts, to the extent, and for the period
determined from time to time to be feasible by the commissioner
pursuant to rules, regulations and standards established by him.
Such rules, regulations and standards shall comply with
requirements of applicable federal laws, rules and regulations
and shall be established on the basis of money available for the
purpose, the number of recipients, the experience with respect to
the incidence of illness, disease, accidents and other causes
among such recipients causing them to require medical services
and the costs thereof, the amounts which recipients require
otherwise in order to maintain a subsistence compatible with
decency and health, and any other factor considered relevant and
proper by the commissioner:
Provided, That such rules and
regulations respecting qualifications shall permit the
expenditure of state funds to pay for care rendered in any
birthing center licensed under the provisions of article two-e,
chapter sixteen of this code, by a licensed nurse-midwife or
midwife as this occupation is defined in section one, article
fifteen, chapter thirty of this code, and which care is within
the scope of duties for such licensed nurse-midwife or midwife as
permitted by the provisions of section seven of said article.
Expenditures of the types heretofore made by the division of
human services to support the payment of medical services to
recipients of specified classes of welfare assistance, including
expenditures for personal services, employee benefits, current expense, repairs and alterations and health care provider
payments, may be made from the fund. The identification of the
general purpose and amount of all expenditures from the fund, to
the extent permitted by federal law, shall be available for
public inspection and an annual report totaling such expenditures
by type shall be available for such inspection. This section
shall be effective from date of passage.
ARTICLE 4A. MEDICAID UNCOMPENSATED CARE FUND.
§9-4A-2b. Expansion of coverage
to children and terminally ill.
(a) It is the intent of the Legislature that steps be taken
to expand coverage to children and the terminally ill and to pay
for this coverage by fully utilizing federal funds. To achieve
this intention, the department of health and human resources
shall undertake the following:
(1) Effective the first day of July, one thousand nine
hundred ninety-four, the department shall initiate a streamlined
application form, which shall be no longer than two pages, for
all families applying only for medicaid coverage for children.
(2) Effective the first day of July, one thousand nine
hundred ninety-four, the department shall initiate the option of
hospice care to terminally ill West Virginians who otherwise
qualify for medicaid. On or before the first day of January, one
thousand nine hundred ninety-five, and periodically thereafter,
the department shall report to the legislative task force on
uncompensated health care and medicaid expenditures created
pursuant to section four, article twenty-nine-c, chapter sixteen of this code regarding the program initiation provided for in
this subdivision. The report shall include, but not be limited
to, the total number, by age, of newly eligible clients served as
a result of the initiation of the program pursuant to this
subdivision, the average annual cost of coverage per client, and
the total cost, by provider type, to serve all clients.
(3) Effective the first day of July, one thousand nine
hundred ninety-four, the department shall accelerate the medicaid
option for coverage of medicaid to all West Virginia children
whose family income is below one hundred percent of the federal
poverty level. On or before the first day of January, one
thousand nine hundred ninety-five, and periodically thereafter,
the department shall report to the legislative task force on
uncompensated health care and medicaid expenditures regarding the
program acceleration provided for in this subdivision. The
report shall include, but not be limited to, the number of newly
eligible clients, by age, served as a result of the acceleration,
the average annual cost of coverage per client and the total cost
of all clients served by provider type.
(4) Effective the first day of July, one thousand nine
hundred ninety-six, the department may initiate the medicaid
option to expand coverage of medicaid to all West Virginia
children whose family income is below one hundred thirty-three
percent of the federal poverty level. Prior to any such program
expansion, but no earlier than the first day of January, one
thousand nine hundred ninety-six, the department shall submit a report to the governor and the Legislature regarding the
feasibility of the expansion. The report is to include, but not
be limited to, the number of newly eligible clients participating
in the programs specified in this section, the average annual
cost of coverage per client, the percentage of expected
participation for the expansion, the projected cost of the
expansion, the medical services trust fund balance and the future
disproportionate share moneys expected to be deposited in the
medical services trust fund pursuant to section two-a of this
article. The department shall continually update the additional
information required to be provided to the governor and the
Legislature regarding this expansion and periodically report the
information to the legislative task force on uncompensated health
care and medicaid expenditures created pursuant to section four,
article twenty-nine-c, chapter sixteen of this code.
(5) Effective the first day of July, one thousand nine
hundred ninety-seven, the department may initiate the medicaid
option to expand coverage of medicaid to all West Virginia
children whose family income is below one hundred fifty percent
of the federal poverty level. Prior to any such program
expansion, but no earlier than the first day of January, one
thousand nine hundred ninety-seven, the department shall submit
a report to the governor and the Legislature, regarding the
feasibility of the expansion. Additionally, the report is to
include, but not be limited to, the number of clients who would
be newly eligible to participate in the program, the average annual cost of coverage per client, by age, the percentage of
expected participation for the expansion and the projected cost
of the expansion, the balance of the medical services trust fund
and the future disproportionate share moneys expected to be
deposited in the medical services trust fund pursuant to section
two-a of this article. The department shall periodically update
and report to the legislative task force on uncompensated health
care and medicaid expenditures created pursuant to section four,
article twenty-nine-c, chapter sixteen of this code regarding the
additional information required to be submitted to the governor
and the Legislature.
(6) The provisions of this section shall not be construed as
requiring the department to expand medicaid coverage to children
after the first day of July, one thousand nine hundred
ninety-four.
(b) Notwithstanding the provisions of section two-a of this
article, the accruing interest in the medical services trust fund
may be utilized to pay for the programs specified in subsection
(a) of this section:
Provided, That to the extent the accrued
interest is not sufficient to fully fund the specified programs,
the disproportionate share hospital funds paid into the medical
services trust fund after the thirtieth day of June, one thousand
nine hundred ninety-four, may be applied to cover the cost of the
specified programs:
Provided, however, That in fiscal year one
thousand nine hundred ninety-five, the amount of funds applied
from the disproportionate share funds, not including accrued interest, shall not exceed ten million dollars:
Provided
further, That in the interest of fiscal responsibility, the
department shall terminate the program specified in subdivisions
(4) and (5), subsection (a) of this section, if the future moneys
deposited from disproportionate share payments in the medical
services trust fund are insufficient to cover the cost of the
expanded program.
(c) On the first day of January, one thousand nine hundred
ninety-five, and annually thereafter, the department shall report
to the governor and to the Legislature information regarding the
number of children and elderly covered by the program, the cost
of services by type of service provided, a cost-benefit analysis
of the acceleration and expansion on other insurers and the
reduction of uncompensated care in hospitals as a result of the
programs.
(d) The health care cost review authority established by
section five, article twenty-nine-b of this chapter shall
consider in its rate review that uncompensated care and charity
care are reduced by the programs specified in subsection (a) of
this section and shall take the reduction into account when
determining rates. This determination shall be undertaken in
each hospital's next rate review and shall be determined
prospectively.
(e) On the first day of January, one thousand nine hundred
ninety-five, and annually thereafter, the health care cost review
authority shall present to the governor and to the Legislature a report concerning the reduction in cost shift created by the
operation of the provisions of this article.
(f) The department shall review the additional utilization
by behavioral health centers as a result of the acceleration and
expansion for a period of eighteen months from the enactment of
this article:
Provided, That during the eighteen-month study
period the department shall not issue additional behavioral
health licenses:
Provided, however, That this license provision
does not apply to facilities filing for renewal applications
or
to any health care facility which has a certificate of need in
effect or an application pending on the first day of March, one
thousand nine hundred ninety-four:
Provided further, That this
licensure prohibition shall not apply to behavioral health
services provided pursuant to any agreement for state-owned
psychiatric hospitals which are approved by the federal health
care finance administration:
And provided further, That this
licensure prohibition shall not apply to facilities developing
mental and behavioral health services not readily available in
the state and which West Virginia child and adolescent medicaid
recipients are receiving out-of-state.
(g) By the first day of June, one thousand nine hundred
ninety-five, the department shall not place children and
adolescents who are medicaid recipients and in need of mental or
behavioral health services in facilities located outside the
state:
And provided further, That such facilities or services
are readily available in the state.
§9-4A-3. Cost containment procedures.
(a) At any time that accounts payable by the state to
providers of medicaid services exceeds one hundred million
dollars for a period of thirty consecutive days, the single state
agency shall prepare the necessary plan amendments, if any,
notify providers, recipients of services and the federal health
care finance administration as may be required by law, and
implement a plan to eliminate optional medicaid services as
provided in subsection (b) of this section. At any time that
accounts payable by the state to providers of medicaid services
exceeds two hundred million dollars for a period of thirty
consecutive days, the single state agency shall prepare the
necessary plan amendments, if any, and notify providers,
recipients of services and the health care finance administration
as may be required by law, and implement a plan to eliminate
optional medicaid services as provided in subsection (c) of this
section.
(b) In accordance with subsection (a) of this section, all
of the following optional services shall be eliminated when
accounts payable to providers of medicaid services exceeds one
hundred million dollars for thirty consecutive days: Physical
therapy, occupational therapy, speech therapy, private duty
nursing, nurse anesthetists, audiology, diagnostic services,
respiratory care services, prosthetic devices and seventy percent
of the optional disproportionate share payments to hospitals.
These optional services shall be eliminated only insofar as they are provided to persons twenty-one years of age or older.
(c) In accordance with subsection (a) of this section, the
following optional services shall be eliminated when accounts
payable to providers of medicaid services exceeds two hundred
million dollars for thirty consecutive days: The remaining thirty
percent of the disproportionate share payments to hospitals,
psychologic services; chiropractic services and podiatry
services. These optional services shall be eliminated only
insofar as they are provided to persons twenty-one years of age
or older.
(d) Prior to any withdrawal from the medical services trust
fund and after the provisions of subsections (b) and (c) have
been fully implemented, the following optional services shall be
eliminated: Prescription drugs, emergency transportation and the
aged and disabled waiver services.
(e) The provisions of subsections (b), (c) and (d) of this
section must be fully implemented prior to the transfer or
withdrawal of any moneys from the medical services trust fund
created pursuant to section two-a of this article.
(f) The department shall implement the prospective payment
to hospitals program by the first day of November, one thousand
nine hundred ninety-five.
CHAPTER 11. TAXATION.
ARTICLE 13A. SEVERANCE TAXES.
§11-13A-20a. Dedication of tax.
(a) The amount of taxes collected under this article from providers of health care items or services, including any
interest, additions to tax and penalties collected under article
ten of this chapter, less the amount of allowable refunds and any
interest payable with respect to such refunds, shall be deposited
into the division of human services medical services fund created
in section two, article four, chapter nine of this code. Any
funds remaining on the last day of June, one thousand nine
hundred ninety-five, in the special revenue fund created in the
state treasurer's office and known as the medicaid state share
fund shall be transferred to the division of human services
medical services fund and any subsequent deposits in the medicaid
state share fund shall also be so transferred. Said fund shall
have separate accounting for those health care providers defined
in section two, article one of said chapter.
(b) Notwithstanding the provisions of subsection (a) of this
section, for the remainder of fiscal year one thousand nine
hundred ninety-three and for each succeeding fiscal year, no
expenditures from taxes collected from providers of health care
items or services are authorized except in accordance with
appropriations by the Legislature.
(c) The amount of taxes on the privilege of severing timber
collected under section three-b of this article, including any
interest, additions to tax and penalties collected under article
ten of this chapter, less the amount of allowable refunds and any
interest payable with respect to such refunds, shall be paid into
a special revenue account in the state treasury to be appropriated by the Legislature for purposes of the division of
forestry.
(d) The amount of taxes collected under this article from
all other persons, including any interest, additions to tax and
penalties collected under article ten of this chapter, less the
amount of allowable refunds and any interest payable with respect
to such refunds, shall be deposited into the general revenue
fund.
ARTICLE 26. HEALTH CARE PROVIDER MEDICAID TAX.
§11-26-1. Legislative findings.
The Legislature finds and declares that:
(a) Medicaid provides access to basic medical care for our
citizens who are not physically, mentally or economically able to
provide for their own care;
(b) Inadequate compensation for health care providers
rendering medicaid services is a barrier to indigent persons
seeking access to health care services;
(c) Health care providers in this state are providing care,
without compensation, to many citizens who are not medicaid
eligible;
(d) Many health care providers are leaving this state due to
economic conditions;
(e) Without adequate compensation this state cannot attract
or retain a sufficient number of health care providers necessary
to serve our indigent population;
(f) Without additional medicaid funding this state cannot adequately compensate health care providers for the health care
services rendered to indigent patients;
(g) The tenth amendment of the United States constitution
guarantees to the states the power to tax;
(h) The Congress of the United States has enacted Section
4701 of the Omnibus Budget Reconciliation Act of 1990, P.L.
101-508, amending Section 1902 of the Social Security Act and
authorizing state medicaid agencies to attribute taxes imposed on
medicaid providers as part of the state share;
(i) Moneys generated in accordance with this article are
supplementary only and shall not be used to reduce the general
financial obligations of the state's medical assistance program
as appropriated by the Legislature; and
(j) These funds shall not be used for any purpose other
than those purposes stated in this article.
§11-26-3. Definitions.
The following words when used in this article have the
meaning ascribed to them in this section, except in those
instances where a different meaning is distinctly expressed or
the context in which the word is used clearly indicates a
different meaning is intended:
(a) "Cost-based service" means any service delivered by a
health care provider reimbursed under the medical assistance
program of this state solely on the basis of costs reported to
the single state agency, whether or not the provider is operating
on a profit or not-for-profit basis.
(b) "Department" means the West Virginia department of
health and human resources. The term "secretary" means the
secretary of the West Virginia department of health and human
resources, or his or her designee.
(c) "Gross receipts" or "gross proceeds" means all payments
received by a health care provider enrolled in this state's
medical assistance program for services delivered pursuant to
Title XIX of the United States Social Security Act, as amended,
and means any and all medicaid reimbursement payments made by the
West Virginia department of health and human resources, or a
division thereof, within the limitations set forth in this
subsection, to such health care provider:
Provided, That this
definition does not include payments received for medicare
coinsurance and deductibles as defined in Title XVIII of the
Social Security Act, and does not include reimbursements made for
cost-based services.
(d) "Health care provider" or "provider" includes physician
providers, ambulance service providers, dentist providers,
general health care providers and outpatient hospital service
providers as defined in section two, article one, chapter nine of
this code, and any other person directly receiving enhanced
medicaid reimbursement payments.
(e) "Single state agency" means the single state agency for
medicaid in this state.
(f) "Taxpayer" means a health care provider required to pay
the medicaid enhancement tax imposed by this article.
ARTICLE 27. HEALTH CARE PROVIDER TAXES.
§11-27-32. Dedication of tax.
(a) The amount of taxes collected under this article,
including any interest, additions to tax and penalties collected
under article ten of this chapter, less the amount of allowable
refunds, the amount of any interest payable with respect to such
refunds, and costs of administration and collection, shall be
deposited into the division of human services medical services
fund named in section two, article four, chapter nine of this
code. Any funds remaining on the last day of June, one thousand
nine hundred ninety-five, in the special revenue fund created in
the state treasurer's office and known as the medicaid state
share fund shall be transferred to the division of human services
medical services fund and any subsequent deposits in the medicaid
state share fund shall also be so transferred. The tax
commissioner shall have separate accounting for those health care
providers defined in section two, article one of said chapter,
except that taxes paid by hospitals may be combined and reported
as a single item. The tax commissioner shall retain from the
taxes collected during each fiscal year the amount of two hundred
thousand dollars to be used for administration and collection of
these taxes.
(b) Notwithstanding the provisions of subsection (a) of this
section, for the remainder of fiscal year one thousand nine
hundred ninety-three and for each succeeding fiscal year, no
expenditures from any of the several health care provider funds are authorized except in accordance with appropriations by the
Legislature.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 2D. CERTIFICATE OF NEED.
§16-2D-2. Definitions.
As used in this article, unless otherwise indicated by the
context:
(a) "Affected person" means:
(1) The applicant;
(2) An agency or organization representing consumers;
(3) Any individual residing within the geographic area
served or to be served by the applicant;
(4) Any individual who regularly uses the health care
facilities within that geographic area;
(5) The health care facilities which provide services
similar to the services of the facility under review and which
will be significantly affected by the proposed project;
(6) The health care facilities which, prior to receipt by
the state agency of the proposal being reviewed, have formally
indicated an intention to provide similar services in the future;
(7) Third-party payors who reimburse health care facilities
similar to those proposed for services;
(8) Any agency which establishes rates for health care
facilities similar to those proposed; or
(9) Organizations representing health care providers.
(b) "Ambulatory health care facility" means a facility which is free-standing and not physically attached to a health care
facility and which provides health care to noninstitutionalized
and nonhomebound persons on an outpatient basis. This definition
does not include the private office practice of any one or more
health professionals licensed to practice in this state pursuant
to the provisions of chapter thirty of this code:
Provided, That
such exemption from review of private office practice shall not
be construed to include such practices where major medical
equipment otherwise subject to review under the provisions of
this article is acquired, offered or developed:
Provided,
however, That such exemption from review of private office
practice shall not be construed to include certain health
services otherwise subject to review under the provisions of
subdivision (1), subsection (a), section four of this article.
(c) "Ambulatory surgical facility" means a facility which is
free-standing and not physically attached to a health care
facility and which provides surgical treatment to patients not
requiring hospitalization. This definition does not include the
private office practice of any one or more health professionals
licensed to practice surgery in this state pursuant to the
provisions of chapter thirty of this code:
Provided, That such
exemption from review of private office practice shall not be
construed to include such practices where major medical equipment
otherwise subject to review under the provisions of this article
is acquired, offered or developed:
Provided, however, That such
exemption from review of private office practice shall not be construed to include certain health services otherwise subject to
review under the provisions of subdivision (1), subsection (a),
section four of this article.
(d) "Applicant" means: (1) The governing body or the person
proposing a new institutional health service who is, or will be,
the health care facility licensee wherein the new institutional
health service is proposed to be located; and (2) in the case of
a proposed new institutional health service not to be located in
a licensed health care facility, the governing body or the person
proposing to provide such new institutional health service.
Incorporators or promoters who will not constitute the governing
body or persons responsible for the new institutional health
service may not be an applicant.
(e) "Bed capacity" means the number of beds for which a
license is issued to a health care facility or, if a facility is
unlicensed, the number of adult and pediatric beds permanently
staffed and maintained for immediate use by inpatients in patient
rooms or wards.
(f) "Capital expenditure" means an expenditure:
(1) Made by or on behalf of a health care facility; and
(2) (A) Which: (i) Under generally accepted accounting
principles is not properly chargeable as an expense of operation
and maintenance; or (ii) is made to obtain either by lease or
comparable arrangement any facility or part thereof or any
equipment for a facility or part; and (B) which: (i) Exceeds the
expenditure minimum; or (ii) is a substantial change to the bed capacity of the facility with respect to which the expenditure is
made; or (iii) is a substantial change to the services of such
facility. For purposes of subparagraph (i) of this paragraph,
the cost of any studies, surveys, designs, plans, working
drawings, specifications and other activities, including staff
effort and consulting and other services, essential to the
acquisition, improvement, expansion or replacement of any plant
or equipment with respect to which an expenditure described in
this paragraph is made shall be included in determining if such
expenditure exceeds the expenditure minimum. Donations of
equipment or facilities to a health care facility which if
acquired directly by such facility would be subject to review
shall be considered capital expenditures, and a transfer of
equipment or facilities for less than fair market value shall be
considered a capital expenditure for purposes of such
subdivisions if a transfer of the equipment or facilities at fair
market value would be subject to review. A series of
expenditures, each less than the expenditure minimum, which when
taken together are in excess of the expenditure minimum, may be
determined by the state agency to be a single capital expenditure
subject to review. In making its determination, the state agency
shall consider: Whether the expenditures are for components of
a system which is required to accomplish a single purpose;
whether the expenditures are to be made over a two-year period
and are directed towards the accomplishment of a single goal
within the health care facility's long-range plan; or whether the expenditures are to be made within a two-year period within a
single department such that they will constitute a significant
modernization of the department.
(g) "Expenditure minimum" means seven hundred fifty thousand
dollars per fiscal year.
(h) "Health", used as a term, includes physical and mental
health.
(i) "Health care facility" is defined as including
hospitals, skilled nursing facilities, kidney disease treatment
centers, including free-standing hemodialysis units, intermediate
care facilities, ambulatory health care facilities, ambulatory
surgical facilities, home health agencies, hospice agencies,
rehabilitation facilities and health maintenance organizations;
community mental health and mental retardation facilities,
whether under public or private ownership, or as a profit or
nonprofit organization and whether or not licensed or required to
be licensed in whole or in part by the state. For purposes of
this definition, "community mental health and mental retardation
facility" means a private facility which provides such
comprehensive services and continuity of care as emergency,
outpatient, partial hospitalization, inpatient and consultation
and education for individuals with mental illness, mental
retardation or drug or alcohol addiction.
(j) "Health care provider" means a person, partnership,
corporation, facility or institution licensed or certified or
authorized by law to provide professional health care service in this state to an individual during that individual's medical
care, treatment or confinement.
(k) "Health maintenance organization" means a public or
private organization, organized under the laws of this state,
which:
(1) Is a qualified health maintenance organization under
Section 1310(d) of the Public Health Service Act, as amended,
Title 42 United States Code Section 300e-9(d); or
(2) (A) Provides or otherwise makes available to enrolled
participants health care services, including substantially the
following basic health care services: Usual physician services,
hospitalization, laboratory, X-ray, emergency and preventive
services and out-of-area coverage; and
(B) Is compensated except for copayments for the provision
of the basic health care services listed in paragraph (A) of this
subdivision to enrolled participants on a predetermined periodic
rate basis without regard to the date the health care services
are provided and which is fixed without regard to the frequency,
extent or kind of health service actually provided; and
(C) Provides physicians' services primarily: (i) Directly
through physicians who are either employees or partners of such
organization; or (ii) through arrangements with individual
physicians or one or more groups of physicians organized on a
group practice or individual practice basis.
(l) "Health services" means clinically related preventive,
diagnostic, treatment or rehabilitative services including alcohol, drug abuse and mental health services.
(m) "Home health agency" is an organization primarily
engaged in providing directly or through contract arrangements,
professional nursing services, home health aide services, and
other therapeutic and related services, including, but not
limited to, physical, speech and occupational therapy and
nutritional and medical social services to persons in their place
of residence on a part-time or intermittent basis.
(n) "Hospice agency" means a private or public agency or
organization licensed in West Virginia for the administration or
provision of hospice care services to terminally ill persons in
such persons' temporary or permanent residences by using an
interdisciplinary team, including, at a minimum, persons
qualified to perform nursing, social work services, the general
practice of medicine or osteopathy and pastoral or spiritual
counseling. Hospice agencies do not include home health or home
care service agencies.
(o) "Hospital" means an institution which is primarily
engaged in providing to inpatients, by or under the supervision
of physicians, diagnostic and therapeutic services for medical
diagnosis, treatment and care of injured, disabled or sick
persons or rehabilitation services for the rehabilitation of
injured, disabled or sick persons. This term also includes
psychiatric and tuberculosis hospitals.
(p) "Intermediate care facility" means an institution which
provides, on a regular basis, health-related care and services to individuals who do not require the degree of care and treatment
which a hospital or skilled nursing facility is designed to
provide, but who, because of their mental or physical condition,
require health-related care and services above the level of room
and board.
(q) "Long-range plan" means a document formally adopted by
the legally constituted governing body of an existing health care
facility or by a person proposing a new institutional health
service. Each long-range plan shall consist of the information
required by the state agency in regulations adopted pursuant to
section eight of this article.
(r) "Major medical equipment" means a single unit of
medical equipment or a single system of components with related
functions which is used for the provision of medical and other
health services and which costs in excess of three hundred
thousand dollars, except that such term does not include medical
equipment acquired by or on behalf of a clinical laboratory to
provide clinical laboratory services if the clinical laboratory
is independent of a physician's office and a hospital and it has
been determined under Title XVIII of the Social Security Act to
meet the requirements of paragraphs ten and eleven of Section
1861(s) of such act, Title 42 United States Code Sections
1395x(10) and (11). In determining whether medical equipment
costs more than three hundred thousand dollars, the cost of
studies, surveys, designs, plans, working drawings,
specifications and other activities essential to the acquisition of such equipment shall be included. If the equipment is
acquired for less than fair market value, the term "cost"
includes the fair market value.
(s) "Medically underserved population" means the population
of an urban or rural area designated by the state agency as an
area with a shortage of personal health services or a population
having a shortage of such services, after taking into account
unusual local conditions which are a barrier to accessibility or
availability of such services. Such designation shall be in
regulations adopted by the state agency pursuant to section eight
of this article and the population so designated may include the
state's medically underserved population designated by the
federal secretary of health and human services under Section
330(b)(3) of the Public Health Service Act, as amended, Title 42
United States Code Section 254(b)(3).
(t) "New institutional health service" means such service
as described in section three of this article.
(u) "Offer", when used in connection with health services,
means that the health care facility or health maintenance
organization holds itself out as capable of providing, or as
having the means for the provision of, specified health services.
(v) "Person" means an individual, trust, estate,
partnership, committee, corporation, association and other
organizations such as joint-stock companies and insurance
companies, a state or a political subdivision or instrumentality
thereof or any legal entity recognized by the state.
(w) "Personal care services" means medically oriented
activities or tasks ordered by a physician and which is
implemented according to a nursing plan of care which has been
completed by, and which is supervised by, a registered nurse and
billed to the state. These services include those activities
which are intended to enable persons to meet their physical needs
and to be treated by a physician in their place of residence.
The term shall include, but not be limited to, services related
to personal hygiene, dressing, feeding, nutrition, environmental
support functions and health related tasks.
(x) "Physician" means a doctor of medicine or osteopathy
legally authorized to practice by the state.
(y) "Proposed new institutional health service" means such
service as described in section three of this article.
(z) "Psychiatric hospital" means an institution which
primarily provides to inpatients, by or under the supervision of
a physician, specialized services for the diagnosis, treatment
and rehabilitation of mentally ill and emotionally disturbed
persons.
(aa) "Rehabilitation facility" means an inpatient facility
which is operated for the primary purpose of assisting in the
rehabilitation of disabled persons through an integrated program
of medical and other services which are provided under competent
professional supervision.
(bb) "Review agency" means an agency of the state,
designated by the governor as the agency for the review of state agency decisions.
(cc) "Skilled nursing facility" means an institution or a
distinct part of an institution which is primarily engaged in
providing to inpatients skilled nursing care and related services
for patients who require medical or nursing care or
rehabilitation services for the rehabilitation of injured,
disabled or sick persons.
(dd) "State agency" means the health care cost review
authority created, established, and continued pursuant to article
twenty-nine-b of this chapter.
(ee) "State health plan" means the document approved by the
governor after preparation by the former statewide health
coordinating council or that document as approved by the governor
after amendment by the health care planning council or its
successor agency.
(ff) "Health care planning council" means the body
established by section five-a of this article to participate in
the preparation and amendment of the state health plan and to
advise the state agency.
(gg) "Substantial change to the bed capacity" of a health
care facility means any change, with which a capital expenditure
is associated, that increases or decreases the bed capacity, or
relocates beds from one physical facility or site to another, but
does not include a change by which a health care facility
reassigns existing beds as swing beds between acute care and
long-term care categories:
Provided, That a decrease in bed capacity in response to federal rural health initiatives shall be
excluded from this definition.
(hh) "Substantial change to the health services" of a health
care facility means the addition of a health service which is
offered by or on behalf of the health care facility and which was
not offered by or on behalf of the facility within the twelve-
month period before the month in which the service is first
offered, or the termination of a health service which was offered
by or on behalf of the facility:
Provided, That "substantial
change to the health services" does not include the providing of
ambulance service, wellness centers or programs, adult day care
or respite care by acute care facilities.
(ii) "To develop", when used in connection with health
services, means to undertake those activities which upon their
completion will result in the offer of a new institutional health
service or the incurring of a financial obligation, in relation
to the offering of such a service.
§16-2D-3. Certificate of need; new institutional health
services defined.
(a) Except as provided in section four of this article, any
new institutional health service may not be acquired, offered or
developed within this state except upon application for and
receipt of a certificate of need as provided by this article.
Any new personal care service offered by any person, facility,
corporation or entity, other than an agency of the state, may not
be offered or developed in this state, if the service is to be funded in whole, or in part, by state or federal medicaid funds,
except upon application for and receipt of a certificate of need
as provided in section six of this article. Whenever a new
institutional health service for which a certificate of need is
required by this article is proposed for a health care facility
for which, pursuant to section four of this article, no
certificate of need is or was required, a certificate of need
shall be issued before the new institutional health service is
offered or developed. No person may knowingly charge or bill for
any health services associated with any new institutional health
service that is knowingly acquired, offered or developed in
violation of this article and any bill made in violation of this
section is legally unenforceable.
(b) For purposes of this article, a proposed "new
institutional health service" includes:
(1) The construction, development, acquisition or other
establishment of a new health care facility or health maintenance
organization;
(2) The partial or total closure of a health care facility
or health maintenance organization with which a capital
expenditure is associated;
(3) Any obligation for a capital expenditure incurred by or
on behalf of a health care facility, except as exempted in
section four of this article, or health maintenance organization
in excess of the expenditure minimum or any obligation for a
capital expenditure incurred by any person to acquire a health care facility. An obligation for a capital expenditure is
considered to be incurred by or on behalf of a health care
facility:
(A) When a contract, enforceable under state law, is entered
into by or on behalf of the health care facility for the
construction, acquisition, lease or financing of a capital asset;
(B) When the governing board of the health care facility
takes formal action to commit its own funds for a construction
project undertaken by the health care facility as its own
contractor; or
(C) In the case of donated property, on the date on which
the gift is completed under state law;
(4) A substantial change to the bed capacity of a health
care facility with which a capital expenditure is associated;
(5) The addition of health services which are offered by or
on behalf of a health care facility or health maintenance
organization and which were not offered on a regular basis by or
on behalf of the health care facility or health maintenance
organization within the twelve-month period prior to the time the
services would be offered;
(6) The addition of ventilator services for any nursing
facility bed by any health care facility or health maintenance
organization;
(7) The deletion of one or more health services, previously
offered on a regular basis by or on behalf of a health care
facility or health maintenance organization which is associated with a capital expenditure;
(8) A substantial change to the bed capacity or health
services offered by or on behalf of a health care facility,
whether or not the change is associated with a proposed capital
expenditure, if the change is associated with a previous capital
expenditure for which a certificate of need was issued and if the
change will occur within two years after the date the activity
which was associated with the previously approved capital
expenditure was undertaken;
(9) The acquisition of major medical equipment;
(10) A substantial change in an approved new institutional
health service for which a certificate of need is in effect. For
purposes of this subsection, "substantial change" shall be
defined by the state agency in regulations adopted pursuant to
section eight of this article; or
(11) An expansion of the service area of any hospice agency
or home health service, regardless of the time period in which
the expansion is contemplated or made.
§16-2D-3a. Moratoriums on letters of intent and applications for
certificates of need for home health, hospice, group
residential facilities and mental and behavioral health
facilities.
(a) There shall be a moratorium on the filing of letters of
intent and applications for all certificates of need for new
services within agencies and facilities which provide or propose
to provide home health services, as defined in section two of this article, and upon new sites by any facility, agency or
service which offers or seeks to offer such services. This
moratorium shall end on the first day of August, one thousand
nine hundred ninety-six. No agency, facility or service shall
tender a letter of intent or application for a certificate of
need for such services prior to that date.
(b) There shall be a moratorium on the filing of letters of
intent and applications for all certificates of need for new
services within those agencies or facilities which provide or
propose to provide hospices and bereavement services, as
described in article five-i of this chapter, and upon new sites
by any facility, agency or service which offers or seeks to offer
such services. This moratorium shall end on the first day of
August, one thousand nine hundred ninety-six. No agency,
facility or service shall tender a letter of intent or
application for a certificate of need for such services prior to
that date.
(c) There shall be a moratorium on the filing of letters of
intent and applications for all certificates of need for new
services within those agencies or facilities which provide or
propose to provide group residential facility services, mental
and behavioral health services and any other services governed by
chapter twenty-seven of this code, and upon new sites by any
facility, agency or service which offers or seeks to offer such
services, except that this moratorium shall not apply to agencies
or facilities which seek a certificate of need: For the sole purpose of creating placements, services, programs or sites for
individuals who were residents of the Colin Anderson center on or
after the first day of January, one thousand nine hundred ninety-
five, or for individuals displaced by residents of Colin Anderson
center moving into community-based settings; for the purpose of
creating placements, services, programs or sites necessary to
prevent individuals from being institutionalized; or for the
purpose of creating placements, services, programs or sites for
specialized foster care; or for the development of mental or
behavioral health services, programs or facilities which are not
readily available in the state and which West Virginia child and
adolescent medicaid recipients are receiving out-of-state. This
moratorium shall end on the first day of August, one thousand
nine hundred ninety-six, or upon the date of implementation of a
medicaid managed behavioral health plan, whichever occurs first.
No agency, facility or service subject to this moratorium shall
tender a letter of intent or pursue application for a certificate
of need for such services prior to that date unless the stated
purpose: Is to provide placements, services, programs or sites
for individuals who were residents of the Colin Anderson center
on or after the first day of January, one thousand nine hundred
ninety-five, or for individuals displaced by residents of Colin
Anderson center moving into community-based settings; is to
create placements, services, programs or sites necessary to
prevent individuals from being institutionalized; or is to create
placements, services, programs or sites for specialized foster care; or is to develop mental or behavioral health services,
programs or facilities which are not readily available in the
state and which West Virginia child and adolescent medicaid
recipients are receiving out-of-state.
(d) No extensions beyond the twelve-month period from
certificate of need approval shall be granted for those
facilities, agencies and services described in subsections (a),
(b) and (c) of this section. This subsection shall apply only to
those certificates approved after the twenty-ninth day of
January, one thousand nine hundred ninety-five, and prior to the
effective date of this section.
(e) A substantial change of a pending or approved
certificate of need for those services described in subsections
(a), (b) and (c) of this section shall be subject to the
moratorium imposed by this section.
§16-2D-5. Powers and duties of state agency.
(a) The state agency is hereby empowered to administer the
certificate of need program as provided by this article.
(b) The state agency shall cooperate with the health care
planning commission in developing rules and regulations for the
certificate of need program to the extent appropriate for the
achievement of efficiency in their reviews and consistency in
criteria for such reviews.
(c) The state agency may seek advice and assistance of other
persons, organizations and other state agencies in the
performance of the state agency's responsibilities under this article.
(d) For health services for which competition appropriately
allocates supply consistent with the state health plan, the state
agency shall, in the performance of its functions under this
article, give priority, where appropriate to advance the purposes
of quality assurance, cost effectiveness and access, to actions
which would strengthen the effect of competition on the supply of
such services.
(e) For health services for which competition does not or
will not appropriately allocate supply consistent with the state
health plan, the state agency shall, in the exercise of its
functions under this article, take actions, where appropriate to
advance the purposes of quality assurance, cost effectiveness and
access and the other purposes of this article, to allocate the
supply of such services.
(f) Notwithstanding the provisions of section seven of this
article, the state agency may charge a fee for the filing of any
application, the filing of any notice in lieu of an application,
the filing of any exemption determination request or the filing
of any request for a declaratory ruling. The fees charged may
vary according to the type of matter involved, the type of health
service or facility involved or the amount of capital expenditure
involved. The state agency shall implement this subsection by
filing procedural rules pursuant to chapter twenty-nine-a of this
code. The fees charged shall be deposited into a special fund
known as the certificate of need program fund to be expended for the purposes of this article.
(g) No hospital, nursing home or other health care facility
shall add any intermediate care or skilled nursing beds to its
current licensed bed complement. This prohibition also applies
to the conversion of acute care or other types of beds to
intermediate care or skilled nursing beds:
Provided, That
hospitals eligible under the provisions of section four-a and
subsection (i), section five of this article may convert acute
care beds to skilled nursing beds in accordance with the
provisions of these sections, upon approval by the state agency.
Furthermore, no certificate of need shall be granted for the
construction or addition of any intermediate care or skilled
nursing beds except in the case of facilities designed to replace
existing beds in unsafe existing facilities. A health care
facility in receipt of a certificate of need for the construction
or addition of intermediate care or skilled nursing beds which
was approved prior to the effective date of this section must
incur an obligation for a capital expenditure within twelve
months of the date of issuance of the certificate of need. No
extensions shall be granted beyond the twelve-month period:
Provided, however, That a maximum of sixty beds may be approved,
as a demonstration project, by the state agency for a unit to
provide nursing services to patients with alzheimer's disease if:
(1) The unit is located in an existing facility which was
formerly owned and operated by the state of West Virginia and is
presently owned by a county of the state of West Virginia; (2) the facility has provided health care services, including
personal care services, within one year prior to the effective
date of this section; (3) the facility demonstrates that awarding
the certificate of need and operating the facility will be cost
effective for the state; and (4) that any applicable lease,
lease-purchase or contract for operating the facility was awarded
through a process of competitive bidding consistent with state
purchasing practices and procedures:
Provided further, That an
application for said demonstration project shall be filed with
the state agency on or before the twenty-first day of October,
one thousand nine hundred ninety-three.
(h) No additional intermediate care facility for the
mentally retarded (ICF/MR) beds shall be granted a certificate of
need, except that prohibition does not apply to ICF/MR beds
approved under the Kanawha county circuit court order of the
third day of August, one thousand nine hundred eighty-nine, civil
action number MISC-81-585 issued in the case of
E. H. v. Matin,
168 W.V. 248, 284 S.E.2d 232 (1981).
(i) Notwithstanding the provisions of subsection (g),
section five of this article and, further notwithstanding the
provisions of subsection (d), section three of this article, an
existing acute care hospital may apply to the health care cost
review authority for a certificate of need to convert acute care
beds to skilled nursing beds:
Provided, That the proposed
skilled nursing beds are medicare certified only:
Provided,
however, That any hospital which converts acute care beds to medicare certified only skilled nursing beds is prohibited from
billing for any medicaid reimbursement for any beds so converted.
In converting beds, the hospital must convert a minimum of one
acute care bed into one medicare certified only skilled nursing
bed. The health care cost review authority may require a
hospital to convert up to and including three acute care beds for
each medicare certified only skilled nursing bed:
Provided
further, That a hospital designated or provisionally designated
as a rural primary care hospital may convert up to thirty beds to
a distinct-part nursing facility, including skilled nursing beds
and intermediate care beds, on a one-for-one basis if said rural
primary care hospital also meets the following criteria: The
hospital is located in a county without a certified free standing
nursing facility. Notwithstanding the prior provisions of this
subsection, said hospital may bill for medicaid reimbursement for
beds so converted:
And provided further, That if said hospital
rejects designation as a rural primary care hospital, said
hospital may not bill for medicaid reimbursement. The health
care cost review authority shall adopt rules to implement this
subsection which require that:
(1) All acute care beds converted shall be permanently
deleted from the hospital's acute care bed complement and the
hospital may not thereafter add, by conversion or otherwise,
acute care beds to its bed complement without satisfying the
requirements of subsection (d), section three of this article for
which purposes such an addition, whether by conversion or otherwise, shall be considered a substantial change to the bed
capacity of the hospital notwithstanding the definition of that
term found in subsection (ee), section two of this article.
(2) The hospital shall meet all federal and state licensing
certification and operational requirements applicable to nursing
homes including a requirement that all skilled care beds created
under this subsection shall be located in distinct-part, long-
term care units.
(3) The hospital must demonstrate a need for the project.
(4) The hospital must use existing space for the medicare
certified only skilled nursing beds. Under no circumstances
shall the hospital construct, lease or acquire additional space
for purposes of this section.
(5) The hospital must notify the acute care patient, prior
to discharge, of facilities with skilled nursing beds which are
located in or near the patient's county of residence.
Nothing in this subsection shall negatively affect the
rights of inspection and certification which are otherwise
required by federal law or regulations or by this code of duly
adopted regulations of an authorized state entity.
(j) Notwithstanding the provisions of subsection (g) of this
section, a retirement life care center with no skilled nursing
beds may apply to the health care cost review authority for a
certificate of need for up to sixty skilled nursing beds provided
the proposed skilled beds are medicare certified only. On a
statewide basis, a maximum of one hundred eighty skilled beds which are medicare certified only may be developed pursuant to
this subsection. The state health plan shall not be applicable
to projects submitted under this subsection. The health care
cost review authority shall adopt rules to implement this
subsection which shall include:
(1) A requirement that the one hundred eighty beds are to be
distributed on a statewide basis;
(2) There shall be a minimum of twenty beds and a maximum of
sixty beds in each approved unit;
(3) The unit developed by the retirement life care center
shall meet all federal and state licensing certification and
operational requirements applicable to nursing homes;
(4) The retirement center must demonstrate a need for the
project;
(5) The retirement center must offer personal care, home
health services and other lower levels of care to its residents;
and
(6) The retirement center must demonstrate both short and
long-term financial feasibility.
Nothing in this subsection shall negatively affect the
rights of inspection and certification which are otherwise
required by federal law or regulations or by this code of duly
adopted regulations of an authorized state entity.
(k) The provisions of this article are severable and if any
provision, section or part thereby shall be held invalid,
unconstitutional or inapplicable to any person or circumstance, such invalidity, unconstitutionality or inapplicability shall not
affect or impair any other remaining provisions contained herein.
(l) The state agency is hereby empowered to order a
moratorium upon the processing of an application or applications
for the development of a new institutional health service filed
pursuant to section three of this article, when criteria and
guidelines for evaluating the need for such new institutional
health service have not yet been adopted or are obsolete. Such
moratorium shall be declared by a written order which shall
detail the circumstances requiring the moratorium. Upon the
adoption of criteria for evaluating the need for the new
institutional health service affected by the moratorium, or one
hundred eighty days from the declaration of a moratorium,
whichever is less, the moratorium shall be declared to be over
and affected applications shall be processed pursuant to section
six of this article.
(m) The state agency shall coordinate the collection of
information needed to allow the state agency to develop
recommended modifications to certificate of need standards as
required in this article. When the state agency proposes
amendments or modifications to the certificate of need standards,
they shall file with the secretary of state, for publication in
the state register, a notice of proposed action, including the
text of all proposed amendments and modifications, and a date,
time and place for receipt of general public comment. To comply
with the public comment requirement of this section, the state agency may hold a public hearing or schedule a public comment
period for the receipt of written statements or documents.
All proposed amendments and modifications to the certificate
of need standards, with a record of the public hearing or written
statements and documents received pursuant to a public comment
period, shall be presented to the governor. Within thirty days
of receiving said proposed amendments or modifications, the
governor shall either approve or disapprove all or part of said
amendments and modifications and, for any portion of amendments
or modifications not approved, shall specify the reason or
reasons for nonapproval. Any portions of the amendments or
modifications not approved by the governor may be revised and
resubmitted.
§16-2D-6. Minimum criteria for certificate of need reviews.
(a) Except as provided in subsections (f) and (g), section
nine of this article, in making its determination as to whether
a certificate of need shall be issued, the state agency shall, at
a minimum, consider all of the following criteria that are
applicable:
Provided, That in the case of a health maintenance
organization or an ambulatory care facility or health care
facility controlled, directly or indirectly, by a health
maintenance organization or combination of health maintenance
organizations, the criteria considered shall be only those set
forth in subdivision (12) of this subsection:
Provided, however,
That the criteria set forth in subsection (f) of this section
applies to all hospitals, nursing homes and health care facilities when ventilator services are to be provided for any
nursing facility bed:
(1) The recommendation of the designated health systems
agency for the health service area in which the proposed new
institutional health service is to be located;
(2) The relationship of the health services being reviewed
to the state health plan and to the applicable health systems
plan and annual implementation plan adopted by the designated
health systems agency for the health service area in which the
proposed new institutional health service is to be located;
(3) The relationship of services reviewed to the long-range
development plan of the person providing or proposing the
services;
(4) The need that the population served or to be served by
the services has for the services proposed to be offered or
expanded, and the extent to which all residents of the area, and
in particular low income persons, racial and ethnic minorities,
women, handicapped persons, other medically underserved
population and the elderly, are likely to have access to those
services;
(5) The availability of less costly or more effective
alternative methods of providing the services to be offered,
expanded, reduced, relocated or eliminated;
(6) The immediate and long-term financial feasibility of the
proposal as well as the probable impact of the proposal on the
costs of and charges for providing health services by the person proposing the new institutional health service;
(7) The relationship of the services proposed to the
existing health care system of the area in which the services are
proposed to be provided;
(8) In the case of health services proposed to be provided,
the availability of resources, including health care providers,
management personnel and funds for capital and operating needs,
for the provision of the services proposed to be provided and the
need for alternative uses of these resources as identified by the
state health plan, applicable health systems plan and annual
implementation plan;
(9) The appropriate and nondiscriminatory utilization of
existing and available health care providers;
(10) The relationship, including the organizational
relationship, of the health services proposed to be provided to
ancillary or support services;
(11) Special needs and circumstances of those entities which
provide a substantial portion of their services or resources, or
both, to individuals not residing in the health service areas in
which the entities are located or in adjacent health service
areas. The entities may include medical and other health
professional schools, multidisciplinary clinics and specialty
centers;
(12) To the extent not precluded by subdivision (1),
subsection (f), section nine of this article, the special needs
and circumstances of health maintenance organizations. These needs and circumstances are limited to:
(A) The needs of enrolled members and reasonably anticipated
new members of the health maintenance organization for the health
services proposed to be provided by the organization; and
(B) The availability of the new health services from
nonhealth maintenance organization providers or other health
maintenance organizations in a reasonable and cost-effective
manner which is consistent with the basic method of operation of
the health maintenance organization. In assessing the
availability of these health services from these providers, the
agency shall consider only whether the services from these
providers:
(i) Would be available under a contract of at least five
years' duration;
(ii) Would be available and conveniently accessible through
physicians and other health professionals associated with the
health maintenance organization;
(iii) Would cost no more than if the services were provided
by the health maintenance organization; and
(iv) Would be available in a manner which is
administratively feasible to the health maintenance organization;
(13) The special needs and circumstances of biomedical and
behavioral research projects which are designed to meet a
national need and for which local conditions offer special
advantages;
(14) In the case of a reduction or elimination of a service, including the relocation of a facility or a service, the need
that the population presently served has for the service, the
extent to which that need will be met adequately by the proposed
relocation or by alternative arrangements and the effect of the
reduction, elimination or relocation of the service on the
ability of low income persons, racial and ethnic minorities,
women, handicapped persons, other medically underserved
population and the elderly, to obtain needed health care;
(15) In the case of a construction project: (A) The cost
and methods of the proposed construction, including the costs and
methods of energy provision; and (B) the probable impact of the
construction project reviewed on the costs of providing health
services by the person proposing the construction project and on
the costs and charges to the public of providing health services
by other persons;
(16) In the case of health services proposed to be provided,
the effect of the means proposed for the delivery of proposed
health services on the clinical needs of health professional
training programs in the area in which the services are to be
provided;
(17) In the case of health services proposed to be provided,
if the services are to be available in a limited number of
facilities, the extent to which the schools in the area for
health professions will have access to the services for training
purposes;
(18) In the case of health services proposed to be provided, the extent to which the proposed services will be accessible to
all the residents of the area to be served by the services;
(19) In accordance with section five of this article, the
factors influencing the effect of competition on the supply of
the health services being reviewed;
(20) Improvements or innovations in the financing and
delivery of health services which foster competition, in
accordance with section five of this article, and serve to
promote quality assurance and cost effectiveness;
(21) In the case of health services or facilities proposed
to be provided, the efficiency and appropriateness of the use of
existing services and facilities similar to those proposed;
(22) In the case of existing services or facilities, the
quality of care provided by the services or facilities in the
past;
(23) In the case where an application is made by an
osteopathic or allopathic facility for a certificate of need to
construct, expand or modernize a health care facility, acquire
major medical equipment or add services, the need for that
construction, expansion, modernization, acquisition of equipment,
or addition of services shall be considered on the basis of the
need for and the availability in the community of services and
facilities for osteopathic and allopathic physicians and their
patients. The state agency shall consider the application in
terms of its impact on existing and proposed institutional
training programs for doctors of osteopathy and medicine at the student, internship and residency training levels;
(24) The special circumstances of health care facilities
with respect to the need for conserving energy;
(25) The contribution of the proposed service in meeting the
health related needs of members of medically underserved
populations which have traditionally experienced difficulties in
obtaining equal access to health services, particularly those
needs identified in the state health plan, applicable health
systems plan and annual implementation plan, as deserving of
priority. For the purpose of determining the extent to which the
proposed service will be accessible, the state agency shall
consider:
(A) The extent to which medically underserved populations
currently use the applicant's services in comparison to the
percentage of the population in the applicant's service area
which is medically underserved, and the extent to which medically
underserved populations are expected to use the proposed services
if approved;
(B) The performance of the applicant in meeting its
obligation, if any, under any applicable federal regulations
requiring provision of uncompensated care, community service or
access by minorities and handicapped persons to programs
receiving federal financial assistance, including the existence
of any civil rights access complaints against the applicant;
(C) The extent to which medicare, medicaid and medically
indigent patients are served by the applicant; and
(D) The extent to which the applicant offers a range of
means by which a person will have access to its services,
including, but not limited to, outpatient services, admission by
a house staff and admission by personal physician;
(26) The existence of a mechanism for soliciting consumer
input into the health care facility's decision-making process.
(b) The state agency may include additional criteria which
it prescribes by regulations adopted pursuant to section eight of
this article.
(c) Criteria for reviews may vary according to the purpose
for which a particular review is being conducted or the types of
health services being reviewed.
(d) An application for a certificate of need may not be made
subject to any criterion not contained in this article or not
contained in regulations adopted pursuant to section eight of
this article.
(e) In the case of any proposed new institutional health
service, the state agency may not grant a certificate of need
under its certificate of need program unless, after consideration
of the appropriateness of the use of existing facilities
providing services similar to those being proposed, the state
agency makes, in addition to findings required in section nine of
this article, each of the following findings in writing: (1)
That superior alternatives to the services in terms of cost,
efficiency and appropriateness do not exist and the development
of alternatives is not practicable; (2) that existing facilities providing services similar to those proposed are being used in an
appropriate and efficient manner; (3) that in the case of new
construction, alternatives to new construction, such as
modernization or sharing arrangements, have been considered and
have been implemented to the maximum extent practicable; (4) that
patients will experience serious problems in obtaining care of
the type proposed in the absence of the proposed new service; and
(5) that in the case of a proposal for the addition of beds for
the provision of skilled nursing or intermediate care services,
the addition will be consistent with the plans of other agencies
of the state responsible for the provision and financing of long-
term care facilities or services including home health services.
(f) In the case where an application is made by a hospital,
nursing home or other health care facility to provide ventilator
services which have not previously been provided for a nursing
facility bed, the state agency shall consider the application in
terms of the need for the service and whether the cost exceeds
the level of current medicaid services. No facility may, by
providing ventilator services, provide a higher level of service
for a nursing facility bed without demonstrating that the change
in level of service by provision of the additional ventilator
services will result in no additional fiscal burden to the state.
(g) In the case where application is made by any person or
entity to provide personal care services which are to be billed
for medicaid reimbursement, the state agency shall consider the
application in terms of the need for the service and whether the cost exceeds the level of the cost of current medicaid services.
No person or entity may provide personal care services to be
billed for medicaid reimbursement without demonstrating that the
provision of the personal care service will result in no
additional fiscal burden to the state. The state agency will
also consider the total fiscal liability to the state for all
applications which have been submitted.
ARTICLE 29C. INDIGENT CARE.
§16-29C-4. Legislative study; appointment of members; expenses;
reports; termination.
Not later than the first day of June, one thousand nine
hundred eighty-five, the president of the Senate and speaker of
the House of Delegates of the West Virginia Legislature shall
appoint a legislative task force on uncompensated health care and
medicaid expenditures which shall meet, study and make
recommendations as herein provided.
The task force shall be composed of three members of the
Senate appointed by the president from the membership of the
Senate standing committee on health and human resources, three
members of the House of Delegates appointed by the speaker from
the membership of the House of Delegates standing committee on
health and human resources and a number of citizens appointed
jointly by the president and speaker which, in their discretion,
adequately provides for the appropriate representation of the
interests of the providers of health care services, the providers
of health care insurance, state departments involved in the administration of health care and health care related programs
and the citizens of this state. Of the members of the Senate
appointed by the president, not more than two shall be from the
same political party. Of the members of the House of Delegates
appointed by the speaker, not more than two shall be from the
same political party.
Members originally appointed to the task force shall serve
for terms beginning on the date of appointment and ending on the
thirtieth day of June, one thousand nine hundred ninety-six,
unless sooner replaced by the president or the speaker as
applicable or, in the discretion of the president and the
speaker, unless the work of the task force is completed or the
need for the task force no longer exists prior to that date. The
task force shall cease to exist on the thirtieth day of June, one
thousand nine hundred ninety-six.
The task force shall meet on such dates as may be approved
by the joint committee on government and finance for the regular
meetings of its subcommittees unless approval is first obtained
from the joint committee on government and finance for additional
meetings. The task force shall conduct studies on the amount of
funds expended by hospitals and other health care providers of
this state for services to persons who are unable to pay for
those services and for which they receive no other form of
reimbursement, the extent to which persons in this state forego
needed medical services because of insufficient income and assets
to pay for those services, the extent to which the state is maximizing available federal programs and moneys in providing
health care services to the citizens of this state, the operation
of the programs and funds created by this article and the roles
of the public, private and private nonprofit sectors in providing
health care services to the citizens of this state. The task
force shall also study the state medicaid program in order to
determine if the state medicaid agency, as the payor of last
resort, is expending maximum effort to identify alternate private
insurance resources for medicaid beneficiaries and shall study
the feasibility and financial impact upon the state of assuring
increased access to medicaid beneficiaries to primary health care
in the nonhospital setting by requiring enrollment in a primary
care clinic program, if available, and of the establishment of
different and lesser schedules of payment for primary health
services delivered by a hospital emergency room as compared to
the schedule of payments for emergency room services of a true
medical emergency nature. The task force shall study and monitor
the implementation of the state's medicaid managed care program,
including the number of client's enrolled, types of services
offered and the number and types of providers offering services
through that program. The study shall also include the
feasibility and financial impact of changing the structure of the
state's health care provider medicaid tax and the fiscal impact
of any recommended changes.
The task force shall file an interim report with the joint
committee on government and finance and the Legislature on the date of the last meeting of the joint committee on government and
finance prior to commencement of the regular session of the
Legislature in each year before the final report of the task
force is filed with the joint committee on government and finance
and the Legislature on or before the thirtieth day of June, one
thousand nine hundred ninety-six.
The members of the task force shall be entitled to
compensation at the rate authorized for members of the
Legislature participating in legislative interim meetings and to
reimbursement for reasonable and necessary expenses actually
incurred in attending meetings of the task force, except that any
employee of the state appointed to the task force is not entitled
to such compensation. Funds necessary for the work of the task
force shall be paid from joint appropriations to the Senate and
House of Delegates but no such funds shall be spent or
obligations incurred in the conduct of such work without prior
approval of the joint committee on government and finance.