Health Law Monitor

West Virginia Health Law 2023 Legislative Update

April 21, 2023

West Virginia Health Law 2023 Legislative Update

The 2023 Regular Session of the West Virginia Legislature was not short on headlines, and bills impacting the health care industry often took center stage. During the last week of March 2023, all completed legislation that the governor had not already signed became law. This occurred via a West Virginia constitutional provision that automatically transforms any remaining unsigned completed legislation into law without requiring the governor’s approval after fifteen days (excluding Sundays) from the legislative session’s end date.[1]

To keep our state and our clients updated, Jackson Kelly PLLC has summarized a few impactful bills that will affect health care industry participants including providers, patients, health plans, and others.

H.B. 2006 – Reorganizing DHHR

Splitting up the Department of Health and Human Resources (DHHR) was one of the biggest stories to persist throughout the legislative term. Lawmakers often cited that this reorganization stemmed from allegations over the years involving mismanagement and inefficient administration of its approximately $8 billion budget.[2] H.B. 2006 provides that over the remainder of this year, DHHR will undergo changes to break up into the following three separate departments by January 2024: (1) the Department of Health; (2) the Department of Health Facilities; and (3) the Department of Human Services.[3] The bill also mandates that the three departments share an administrative office, and it further empowers the Inspector General to conduct oversight under the Department of Health.

S.B. 577 - Reducing Copay Cap on Insulin and Devices and Permitting Purchase of Testing Equipment Without Prescription

Beginning January 1, 2024, this bill will reduce the health insurance cost-sharing limit from $100 to $35 for a 30-day supply for covered prescription insulin.[4] This places state insulin cost-sharing caps on par with Medicare Part D health plans.[5] The $35 limit is in aggregate—meaning that this limit is not just a per-drug limit, so it applies even in situations where a person uses more than one type of insulin. While at least five other states have aggregate cost-sharing limits for insulin, they all clock in at $100.[6] Furthermore, this bill sets a $100 aggregate limit on a 30-day covered device supply.[7] A “device” in the bill is a blood glucose test strip, glucometer, continuous glucose monitor, lancet, lancing device, or insulin syringe. S.B. 577 also provides that health insurers will not require a prescription for a blood testing kit for ketones.

S.B. 267 – Updating Law Regarding Prior Authorizations

S.B. 267 seeks to streamline the process in which providers must receive prior authorization from health insurers before administering certain medical care during an episode of care.[8] The bill requires health care providers and health insurers to communicate through an electronic portal and to send prior authorization forms through that portal. It also reduces the available time in which a health insurer must respond to a provider’s prior authorization request by setting a five-business-day limit for routine requests and a two-business-day limit when there could be adverse health or safety outcomes without the care or treatment. The bill also tightens time limits for a decision’s appeal process.

S.B. 267 also revises a practitioner’s “gold card” status, which exempts practitioners under certain circumstances from needing prior authorization before administering treatment. Once the bill takes effect, a practitioner will be exempt from the prior authorization process for at least 6 months when the practitioner has received at least a 90% final prior approval rating over a six-month period in a year where the practitioner has performed an average of 30 procedures. S.B. 267 takes effect beginning June 6, 2023.

S.B. 613 – Relating Generally to Certificates of Need

Revising (or potentially repealing) West Virginia’s certificate of need law has been a consistent topic in the West Virginia Legislature for several sessions now.[9] This law governs situations when health care providers need permission from the West Virginia Health Care Authority prior to implementing certain actions, including but not limited to adding or expanding certain types of health care services, incurring capital expenditures in certain instances, and incurring capital expenditures beyond a statutorily set expenditure minimum.[10] S.B. 613, effective upon passage, captures lawmakers’ sentiment by making significant changes to the law.[11]

Among these changes is a definitional change to a hospital’s “campus.” Until this bill, a campus consisted of the grounds and adjacent grounds of a health care facility that were not separated by a public right of way.[12] Now, a “campus” consists of “the physical area immediately adjacent to the hospital’s main buildings, other areas, and structures that are not strictly contiguous to the main buildings, but are located within 250 yards of the main buildings.”[13] This is important as the bill exempts from certificate of need requirements “hospital services,” provided on a hospital’s “campus.” The bill defines hospital services as “services provided primarily to an inpatient to include, but not be limited to, preventative, diagnostic, treatment, or rehabilitative services provided in various departments on a hospital campus.”[14]

Other key changes the bill makes include (1) exempting birthing centers from a certificate of need requirement; (2) exempting from a certificate of need requirement a private practice with at least seven office locations acquiring one MRI machine, regardless of cost; and (3) raising the expenditure minimum from $5 million to $100 million.

Other Noteworthy Health Legislation

This is just a glimpse of the changes that occurred during this legislative session. Other newly enacted legislation impacting health law that may be of interest includes the following:

H. B. 2007 – Prohibiting Certain Medical Practices
H.B. 2029 – Repeal All Payer Claims Database
H.B. 2648 – Authorizing Certain Agencies and Boards of the DHHR to promulgate a Legislative Rule
H.B 2757 – Relating to Immunizations Performed in a Pharmacy
H.B. 2759 – Relating to Updating the Health Care Provider Tax
H.B. 2993 – Relating to Rural Emergency Hospital Licensure
H.B. 3141 – Relating to the Practice of Dentistry
H.B. 3166 – To Permit a Hospital to Hold a Patient Experiencing Psychiatric Emergency for Up to 72 Hours
H.B. 3199 – Removing the Requirement that an Ectopic Pregnancy Be Reported
H.B. 3337 – Prohibiting Additional Drug and Alcohol Treatment Facilities and Services in a Certain County
S.B. 241 – Patient Brokering Act
S.B. 268 – Relating to PEIA
S.B. 361 – Authorizing Miscellaneous Boards and Agencies to Promulgate Legislative Rules
S.B. 476 – Exempting Managed Care Contracts from Purchasing Requirements
S.B. 552 – Relating to Abortion
S.B. 526 – Including Early Detection and Diagnosis of Alzheimer’s and Other Dementias in Public Health Programs and Services
S.B. 605 – Requiring State Medical Examiner to Enter Into Contracts with Procurement Organization
S.B. 617 - Relating to Intellectual and Development Disabilities Waiver Program Workforce Study
S.B. 679 – Requiring Office of Inspector General to Promulgate Rules Concerning Location of Forensic Group Homes

As always, your Jackson Kelly health care team is ready to advise you or your organization of this new legislation or any other health care compliance matter you may encounter.

[1] See W. Va. Const., art. VII, § 14. The fifteen-day timetable only occurs when the legislative session has ended. During the session, the governor has five days (excluding Sundays).

[2] See, e.g., Lawmakers consider pervasive issues while focusing on whether to split DHHR, MetroNews (Mar. 6, 2022, 11:51 AM), https://wvmetronews.com/2022/03/06/lawmakers-consider-pervasive-issues-while-focusing-on-whether-to-split-dhhr/ (last visited Apr. 1, 2023).

[3] H.B. 2006, 2023 Leg., Reg. Sess. (W. Va. 2023).

[4] S.B. 577, 2023 Leg. Reg. Sess., (W. Va. 2023).

[5] 42 U.S.C. § 1395w-102(a)(9)(D).

[6] See Colo. Rev. Stat. 10-16-151(2) (2023); Del. Code Ann. 18, § 3344b(b)(1) (2023); 215 Ill. Comp. Stat. 5/356z.41(c) (2023); Me. Stat. 24-A, §4317-C (2023); Vt. Stat. Ann. 8, § 4089i(h) (2023).

[7] S.B. 577.

[8] S.B. 267, 2023 Leg. Reg. Sess. (W. Va. 2023).

[9] See e.g., UPDATE Bill to get rid of CON process dies in House Health, MetroNews (Feb. 1, 2022, 12:39 PM), https://wvmetronews.com/2022/02/01/patch-adams-testifies-against-certificate-of-need-program-for-wv-hospitals/ (last visited Apr. 1, 2023).

[10] See W. Va. Code § 16-2D-1 et seq. (2023).

[11] S.B. 613, 2023 Leg. Reg. Sess. (W. Va. 2023).

[12] See W. Va. Code § 16-2D-2(9) (2022).

[13] See id. at § 16-2D-2(9) (2023) (emphasis added).

[14] See id. at 16-2D-2(9).

Attorneys

J. Parker Zopp