SUMMARY OF SIGNIFICANT LEGISLATION RELATING TO

MEDICAL PRACTICE OR PUBLIC HEALTH

INTRODUCED IN THE 2018 REGULAR SESSION OF

THE WEST VIRGINIA LEGISLATURE

The West Virginia State Medical Association ("WVSMA") was actively involved in advocating certain legislation relating to medical practice and public health. At times, that advocacy took the form of providing significant support for or input to policy decisions made by legislators. At other times, WVSMA opposed legislation and played a critical role in its defeat.

A. The following bills were enacted by the West Virginia Legislature during the 2018 regular session.  Do note that Governor Justice must act on these bills by or before midnight on March 28, 2018.  A failure to act does not result in a "pocket veto"; the only way to disapprove a bill is to veto it. Thus, a bill can become law without the Governor's signature.

SB 273-- The Opioid Reduction Act of 2018. This is the Governor’s bill on opioid reduction. The bill limits initial prescriptions of controlled substances to certain patients, with subsequent prescriptions also limited. It does not apply to certain patients such as those under cancer treatment, in palliative care, or in nursing homes, nor does it apply to patients who have been in an existing physician-patient relationship and under an opioid treatment plan prior to January 1, 2018. The bill requires narcotics contracts for any prescriptions exceeding 7 days whereby the patient is limited to receiving Schedule II drugs from one physician and pharmacy. A breach of the contract may be a basis for termination of the relationship. Finally, SB 273 strengthens existing law by requiring the Board of Pharmacy, upon consultation with affected professionals, to promulgate emergency rules which define abnormal prescribing practices and to report such on a quarterly basis to the appropriate licensing boards. WVSMA supported this bill and provided significant direction for policy makers relating to limitations on initial prescriptions for opioids. Also, language in the bill which appeared to expand the prescriptive authority for physician's assistants and APRNs was removed at the request of WVSMA. 

 

SB 442- -Relating to prior authorizations. The original purpose of this bill was to establish universal forms and deadlines when a prior authorization is submitted. However, the bill was amended such that payers are now required to post on their websites by October 2018 those particular forms they require for submission of requests for prior authorizations. Further, as of July 2019, payers must respond to electronic prior authorization requests within 48 hours for urgent and within 7 days for non-urgent matters. WVSMA supported this bill and engaged with lawmakers and their staff in the development of the underlying public policy for this legislation.

HB 4524-- Relating to the clarification of prescribing guidelines for biological products. The purpose of the bill was to provide definitions of biological and biosimilar products and to permit a pharmacist to substitute a biosimilar for a prescribed biological product only if permitted by the prescribing physician and if that biosimilar had been recognized by the FDA as interchangeable. However, if a physician expressly indicates on the prescription that the biological is medically necessary, there may be no such substitution. Pharmacists must report any permitted substitution to the physician within 5 business days. This bill was originally drafted by WVSMA and supported throughout the legislative process.

 

HB 4336- -Updating the schedule of controlled substances. This bill amended certain schedules of controlled substances and, among other things, added Gabapentin as a Schedule V controlled substance. WVSMA supported this bill and engaged with lawmakers and their staff in the development of the underlying public policy for this legislation

 

SB 401-- Requiring specified coverage in health benefit plans for outpatient and inpatient treatment for substance abuse disorders. Language in the bill which appeared to expand the prescriptive authority for psychologists was removed at the request of WVSMA. 

SB 576-- Relating to Patient Injury Compensation Fund. The purpose of this bill is to continue the collection of fees from hospital trauma centers, plaintiff's attorneys, and physicians for deposit in the Patient Injury Compensation Fund. Those moneys would then be used to pay out compensation to the closed class of qualified plaintiffs. Once those claims have been satisfied, the Fund would close on December 31, 2021. Together with the other participants, WVSMA supported the continuation of this Fund.

SB 272-- Relating generally to drug control introduced by request of Governor Justice. The purpose of the bill is to require hospital emergency rooms and departments, as well as certain other law enforcement and medical care providers, to report suspected or confirmed drug overdoses to the Office of Drug Control Policy. This bill permits counties experiencing drug overdoses higher than the national average to establish certain community-based recognition and response efforts and seek federal and private funding to implement these programs. The bill requires all first responders, regardless of frequency of drug overdoses in their communities, to carry naloxone and be trained in its use. 

SB 510-- Relating to hospitals as a designation for stroke treatment. The purpose of this bill adds a designation as a thrombectomy-capable stroke center. The bill also modifies the composition of the advisory committee promoting stroke awareness and treatment and also prohibits inspections of such hospitals by DHHR as a result of their designation. The American Heart Association supported this bill, as did the WVSMA. It passed both chambers unanimously.

 

SB 434-- Specifying documents not subject to discovery. The purpose of this bill is to identify in law those documents generated during the peer review process that are not subject to civil discovery in subsequent proceedings, such as medical malpractice actions. The bill codified case law in that regard, providing continuity and clarity in those areas. 

B.    The following bills were supported by WVSMA, but were not enacted by the Legislature.

HB 4218-- Relating to medical professional liability. The purpose of this bill is to tighten the qualifications for the healthcare provider who signed a screening certificate of merit, which affidavit serves as a pre-condition to the commencement of a medical malpractice action. It also provides that if it appears to the court that a defendant health care provider has incurred attorney fees and costs unnecessarily because the claimant has submitted a screening certificate of merit that contains unfounded or unsupported conclusions against that healthcare provider, the court may order the claimant, or the healthcare provider who executed the screening certificate of merit, or both, to pay reasonable attorney fees and costs to the other party. While the bill advanced out of House Health and then House Judiciary Committees, the latter deleted the fee shift provision. Thus, while the bill ultimately passed the House 99-0, it was never taken up by the Senate because of the House's opposition to the fee shift. 

SB 61-- Prohibiting smoking in motor vehicle when minor 16 years old or less is present. This bill passed Senate Health Committee, but did not advance further and therefore did not pass this legislative session.

SB 103-- Establishing a tax credit for certain physicians who locate in WV to practice - The purpose of the bill is to establish a tax credit for physicians who are new graduates and locate in West Virginia to practice medicine for at least six years. This bill passed the Senate Health Committee, but did not advance further and therefore did not pass this legislative session.

HB 4197-- Relating to emergency dispatch. The purpose of this bill is to require persons employed to dispatch emergency calls in county emergency dispatch centers to complete a training course in emergency cardiovascular care for telephonic cardiopulmonary resuscitation. While the American Heart Association supported this bill, as did the WVSMA, there were disagreements between the two chambers over the extent of training and/or continuing education on CPR techniques that dispatchers were to complete. As a result, even though the bill passed out of the House and the Senate, the two chambers could not resolve this dispute and, the bill was not enacted.

HB 4344-- Relating to the tax on soft drinks. The purpose of this bill is to modify the tax on soft drinks to apply to sodas containing sugar sweeteners. The bill increases the tax to 2 cents per ounce on certain sodas. The bill redistributes revenue to include funding for the Public Employees Insurance Agency and certain schools at West Virginia University. While the American Heart Association and the WVSMA supported this bill, it did not advance this legislative session. 

C.  The WVSMA actively opposed the following bills which were not enacted by the Legislature.

 

HB 4260-- Providing prescriptive prescription authority to a licensed psychologist who meets certain criteria. The purpose of this bill is to provide a procedure for giving prescriptive authority to a licensed psychologist who meets certain criteria. WVSMA strongly opposed this bill and it never advanced out of its original committee of reference.

 

HB 4413-- Creating practice guidelines for Physician's Assistants. This bill was strongly supported by the physician’s assistant community who see the bill as leveling the business playing field between PAs and APRNs. Simply put, as introduced, this bill authorizes a PA to perform any specific function or duty delegated under W.Virginia law to allopathic or osteopathic physicians so long as certain minimum requirements are met. WVSMA strongly opposed this bill and, it never advanced out of its original committee of reference. 

 

SB 448-- Relating to the establishment of professional associations. The purpose of this bill was to recognize professional associations as a business entity. Such associations are comprised of professionals licensed by boards and included all healthcare providers. The bill also recognized professionals licensed by out of state boards, but did not impose local oversight of their practices. This bill advanced out of the Senate, but was held in House Government Organizations Committee and got no further. WVSMA strongly opposed the advancement of this bill in the form in which it was introduced because it could potentially expand the scope of authority of certain healthcare providers and shield them from oversight by the appropriate domestic licensing board. 

 

HB 2521- -Relating to the Nurse Compact. The purpose of this bill is to enact the Advanced Practice Registered Nurse Compact in West Virginia. The bill would have permitted multi-state licensing privileges through the Interstate Commission of Advanced Practice Registered Nurse Compact Administrators. The bill also set forth procedures for recognition of prescriptive authority for controlled and non-controlled substances. WVSMA opposed this bill and it never advanced out of its original committee of reference. 

SB 337--Permits parents of a newborn to opt out of the application of erythromycin, or equivalent medication, on the eyes of their child and goes on to legally immunize that decision from any adverse action for abuse and neglect or child endangerment by DHHR or other legal entity. This bill never advanced out of its original committee of reference.

HB 4304-- Creating the Board of Nursing. The purpose of this bill is to combine the board of Examiners for Licensed Practical Nurses and West Virginia Board of Examiners for Registered Professional Nurses into a new Board of Nurses. WVSMA did not support the bill in its form when it passed out of the House, partly because it purported to establish in law the scope of practice for nurses in West Virginia. Ultimately, the bill did not advance out of Senate Health and failed to become law.

HB 4481-- Relating to mandatory inter-board reporting by licensees or registrants of the boards of medicine, osteopathic medicine, nursing. The purpose of this bill is to require licensees or registrants of the boards of medicine, osteopathic medicine, registered professional nursing, and practical nursing to report the incapacity or inability to practice of any licensee or registrant of his or her own board or to the other three listed boards. Language in the bill which would have expanded the duty to report on those professionals to their respective licensing boards was removed at the request of WVSMA, though we did not thereafter support the bill. Indeed, while the bill advanced out of the House, it remained pending in Senate Health Committee where it failed to advance this legislative session.

D. The WVSMA did not take an overt or active role in the opposition of the following bills, the majority of which were not enacted by the Legislature.

HB 4014-- Relating to reorganization of the West Virginia Department of Health and Human Resources - in House Health and Human Resources. The purpose of the bill is to reorganize the West Virginia Department of Health and Human Resources by creating the Departments of Health and Compliance, Human Services and Healthcare Facilities, and the Office of the Inspector General. WVSMA did not take an active role in the legislative process over this bill beyond ensuring that any investigations of health care providers be insulated from the political process. While the bill passed the House, it never advanced out of Senate Finance Committee.

HB 4623-- Relating to obtaining substance use treatment. The purpose of this bill is to require pregnant and post-partum women to obtain substance abuse treatment services; permits certain testing; and, requires reporting of positive drug screen results to the Department of Health and Human Resources. The bill also requires DHHR to conduct an assessment and permits the filing of petitions for involuntary commitment or reports of abuse and neglect to be filed in certain circumstances.  While HB 4623 passed the House Health Committee, and later the House, it failed to advance out of Senate Health Committee.

HB 4153-- Relating to imposition of health care provider tax on managed care organizations. The purpose of this bill was to impose a tiered tax on MCOs depending on the average number of Medicaid beneficiaries they managed. The imposition of this tax was dependent upon obtaining prior approval from CMS. The bill advanced out of the House but remained in Senate Health when the legislative session concluded. WVSMA did not take a position on this bill.

SJR 12- -A proposed amendment to the West Virginia Constitution that would declare that nothing within the constitution protects the right to an abortion, nor compels the State to fund the same. The joint resolution passed by a vote of more than two-thirds in each chamber and will therefore be placed on ballot in the November election. 

This newsletter seeks to provide an overview of activity during the Legislative Session. Updates on bills relating to healthcare and the practice of medicine are published weekly.

If you have questions or concerns, please contact Danny Scalise, Executive Director at scalise@wvsma.org .