From the Well | February 1, 2024

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86th West Virginia Legislature

State Capitol

February 1, 2024

West Virginia News Headlines

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FOSTER CARE: The House Senior, Children, and Family Issues Committee adopted four bills related to foster care.

DRUG BILL: The Senate Judiciary Committee passed Committee Substitute for Committee Substitute for Senate Bill 325, which adds section 60A-8-6a relating to 340B drugs.

PEIA COVERAGE: The Senate Health and Human Resources Committee adopted Senate Bill 453, whose provisions “require any pharmacy benefit manager (PBM) who contracts with PEIA to be entirely transparent in providing its full data around pricing and payments for drugs and to pharmacies.”

EMERGENCY SERVICES: The Senate Health and Human Resources Committee adopted Senate Bill 444, which requires insurance coverage for prehospital screening and stabilization of an emergency medical condition to include ambulance service.

LOCHHRA AUTHORITY: The Senate Finance Committee amended a House-adopted bill relating to expanding the authority of the Legislative Oversight Commission of Health and Human Resources Accountability (LOCHHRA).

BIRTHING: The House Health and Human Resources Committee passed legislation that relates to the licensure of birthing centers and updates procedures for applications and obtaining a license.

DENTAL CARE: The House Health and Human Resources Committee approved a bill that authorizes that dentures do not count against the yearly $1,000 coverage limit allowed by Medicaid.

PHYSICAL THERAPY: The House Health and Human Resources Committee passed House Bill 5343, which adds an athletic trainer to the state Board of Physical Therapy.

BEHAVIORAL HEALTH: The House Health and Human Resources Committee passed legislation that modernizes language and definitions and creates licenses for residential and nonresidential behavioral health centers.

SEQUESTRATION: The Senate Energy Industry and Mining Committee amended West Virginia’s environmental regulations related to carbon-sequestration enforcement and class-six injection well primacy.

ALCOHOL: The House Committee on Economic Development and Tourism passed two bills, one that involves regulating wineries and the other outdoor beverage sales.

CORRECTIONAL OFFICERS: The House Jails and Prisons Committee unanimously passed House Bill 4297, which recognizes the law enforcement powers of correctional officers employed by the Division of Corrections and Rehabilitation.

PRIVACY: The House Committee on Technology and Infrastructure passed House Bill 5271, which aims to create privacy protections for social care information.

INFRASTRUCTURE READY: The House Committee on Technology and Infrastructure legislation involving political subdivisions qualifying for infrastructure projects.

Provide a tax credit to for-profit and nonprofit corporations to encourage the continued operation of child-care facilities for the benefit of their employees

The Committee approved two other related measures.

The bill allows a “taxpayer” operating an existing childcare facility to be allowed a tax credit, the “aggregate amount of the credit is equal (to) 100% of the total amount expended by a taxpayer during a taxable year for the operation of an existing, qualified childcare facility less any amounts paid by employees during a taxable year. In the case of a qualified childcare property jointly owned by two or more unaffiliated employers, each employer’s credit is limited to that employer’s respective contribution to the cost of operating the qualified childcare.

Qualified child care property is defined as “all real property, other than land, and tangible personal property for use exclusively in the improvement or operation of an employer-provided childcare facility, including mounts expended on improvements, furniture, fixtures, and equipment directly related to the operation of childcare property but only if the children who use the facility are primarily children of employees who:

The taxpayer and other employers in the event the childcare property is owned jointly or severally by the taxpayer and one or more employers; or

A corporation that is a member of the taxpayer’s “affiliated group” within the meaning of section 1504(a) of the Internal Revenue Code; and

The taxpayer does not qualify for, or claim, any tax credit for the cost of operation for such qualified childcare property under other sections of law.

The bill also provides limitations on existing childcare facility credits based on the following conditions:

·     The credit, when combined with other allowable statutory tax credits, cannot exceed 100% of the amount of the taxpayer’s income tax liability for the taxable year as determined without regard to any other credits;

·     A tax credit claimed but not used in any taxable year may be carried forward for five years from the close of the taxable year in which the cost of operation was incurred; and

·     The employer must certify the names of the employees, the name of the childcare provider, and such other information as may be required by the Tax Department to ensure that credits are granted only to employers who provide or sponsor approved childcare as outlined in law.

The Tax Commissioner is authorized to issues interpretative, legislative, and procedural rules deemed “useful or necessary to carry out the purpose of this section and to implement the intent of the Legislature,” as well as emergency rules.

Increase the tax credit for employers providing child care for employees

Relating to establishing a pilot program to develop a childcare program where the state, employer, and employee, contribute one-third of the total cost each

Relating to permit a guardian ad litem to request the assistance of a court appointed special advocate

HB5151

Relating to defining term fictive kin

HB5063

Modifying the time to terminate a foster care arrangement

HB4798

Informing caretaker of his or her rights at the initial point of contact during a child protective investigation

House Bill 5062 would amend existing code so a guardian ad litem “may request the appointment of a court-appointed special advocate, which the judge should strongly consider.”

Committee Counsel reiterated all other provisions of existing code remain, including provisions relating to petitions for hearings, parties to hearings, priority of hearings when cases of child neglect or abuse are suspected.

Counsel emphasized that under existing law, a transcript or recording is to be made of all proceedings unless waived by all parties to the proceeding with rules of evidence applying with appeals based on statute.

The evidence is to be transcribed and made available to the parties or their Counsel as soon as practicable for further proceedings.

If an indigent person intends to pursue further proceedings, the court reporter shall furnish a transcript of the hearing without cost to the indigent person if an affidavit is filed stating that he or she cannot pay for the transcript.

House Bill 5151 adds former foster parents to the definition of fictive kin, which Code currently defines as “”an adult of at least 21 years of age, who is not a relative of the child, as defined herein, but who has an established, substantial relationship with the child, including but not limited to, teachers, coaches, ministers, parents, or family members of the child’s friends. The bill was second-referenced to the House Judiciary Committee.

House Bill 5063 would modify the time to terminate a foster care arrangement from the current 18 consecutive months to six consecutive months. Based on his work with a foster care study group, Delegate Jonathan Pinson of Mason County said the legislation will speed up permanence to foster care situations, and that will provide foster children stability in determining permanent placement decisions. The bill was second-referenced to the House Judiciary Committee.

House Bill 4798, amends existing law relating to “caretaker rights.” The measure grants caretakers the right to receive information regarding their rights at the initial point of contact during a Child Protective Services investigation, including oral and written information detailing parent or caretaker’s rights unless the Child Protective Services worker at the point of initial contact “has reasonable cause to believe that exigent circumstances exist that present an imminent danger to the child’s life or health and there is no time to seek a court order, the Child Protective Services worker shall take all lawful measures necessary to protect the child’s life or health prior to disseminating information regarding the parent or caretaker’s rights.”

Unless the CPS worker determines otherwise, caretaker rights include provisions stating:

·     The parent or caretaker is not required, unless court-ordered, to permit the Child Protective Services representative to enter the residence of the parent or caretaker;

·     The parent or caretaker who is the subject of the investigation is entitled to be informed of the allegations being investigated;

·     The parent or caretaker is not required, unless court-ordered, to allow a Child Protective Services representative to interview or examine a child;

·     The service representative, and any statement made by the parent, caretaker or other family member may be used against the parent or caretaker in an administrative or court proceeding;

·     The parent or caretaker is entitled to seek the advice of an attorney and to have an attorney present when the parent or caretaker is questioned by a Child Protective Services representative;

·     The parent or caretaker is not required, unless court-ordered, to agree to any requests made by a c Child Protective Services representative, including, but not limited to, requests to sign a release of information, to take a drug or alcohol test, or to submit to a mental health evaluation;

·     The parent or caretaker is entitled to an attorney;

·     The parent or caregiver is entitled to contact information for resources that may be available to parents and caretakers during a Child Protective Services investigation, including legal services from a designated organization.

All bills have second references to the House Judiciary Committee.

Relating to distribution of drugs to safety net providers and contract pharmacies 

A 340B drug is defined in the bill as a covered outpatient drug that fits the meaning of federal law 42 USC 256b and has been subject to any offer for reduced prices by a manufacturer. It is purchased by a covered entity. The bill deals with the scope of the 340B program that is administered by the federal Secretary of Health and Human Services.

340B is a program that requires drugs be offered at a discount. The scope of the obligation has been the topic of litigation on the federal level, according to Committee Counsel.

The bill before the Committee would not allow drug manufacturers to refuse or restrict 340B drugs. It authorizes a $50,000 fine, and oversight is given to the Board of Pharmacy. No private cause of action is allowed.

After hearing from several witnesses, Senator Tom Takubo, a physician from Kanawha County and lead sponsor of the bill, asked a representative of PhRma how he should respond to patients who no longer can get their medications.

“I just took your 340B from you,” Senator Takubo said.

The PhRma representative responded, “Companies are forced to give discounts beyond the original intent.”

Senator Takubo noted that the original intent was to help low-income people.

Senator Mike Stuart of Kanawha County read some information he found online and stated, “These companies are making remarkable amounts of money.”

He later spoke in favor of the bill but said it’s not a perfect solution.

“Some of the profits are extraordinary,” he said. “I celebrate those profits. But there’s no area that’s more confusing to people than health care.”

Senator Patricia Rucker of Jefferson County apologized to the Committee about the “tone” of her questioning.

“I support this, but we should be concerned about transparency,” she said.

Chair Charles Trump of Morgan County said she had nothing for which to apologize and had asked appropriate questions.

Senator Takubo concluded the discussion by reading an e-mail he had just received from one of his patients who works at a pharmacy. His patient said he had a customer with a seizure disorder, and the manufacturer decided the patient could only get the brand name. The customer had to go to a pharmacy 90 miles away.

“This is what happens when 340B access is restricted in West Virginia,” Senator Takubo said.

Requiring pricing and payment transparency from pharmacy benefits managers contracting with PEIA

For all pharmacy claims, PBMs are to report, “The overall total number of claims in which the pharmacy benefits manager reimbursed a pharmacy provider for more or less than the amount charged to the agency for all claims processed by the pharmacy benefit manager during the month, including the total amount paid to the pharmacy provider per claim, including, but not limited to, the following:

·     cost of drug reimbursement;

·     dispensing fees;

·     copayments;

·     amount charged to the agency for each claim by the pharmacy benefit manager;

·     date of service;

·     National Drug Intelligence Center data

·     drug name;

·     drug strength;

·     quantity;

·     days of therapy;

·     Rx count;

·     mail/retail code;

·     brand/generic indicator;

·     specialty drug indicator;

·     compound indicator;

·     formulary indicator;

·     gross cost;

·     member cost;

·     plan cost;

·     dispense as written;

·     pharmacy NPI number;

·     pharmacy Claim ID;

·     prescriber NPI number;

·     pharmacy name; and

·     ingredient costs.

As stated in the legislation, PEIA is required to include several items in its PBM requests for proposals and contracts, including:

·     A per-member per-month guarantee that is entirely based on the total pharmacy program cost, with the pharmacy benefit manager contractually agreeing to an at-risk administrative fee model if the total pharmacy program cost guarantee is not met.

·     Disclosure of all information and data related to contracting, reimbursement, networks, rebates, fees, and any other information and data requested by PEIA, the Legislature, and vendors for performing study and analysis.

·     Utilization of a national average drug acquisition cost-based pricing source when charging PEIA and reimbursement source when reimbursing pharmacies regardless of distribution channel. If NADAC is unavailable, wholesale acquisition cost (WAC) is to be used. (There are considerations for fee schedules used by the Centers for Medicare and Medicaid Services, which, if beneficial to PEIA, the agency is to “conduct a study and analysis of that model and report to the Legislature on these findings.”

·     100% of drug manufacturer rebates go directly to PEIA, which does not include discounted payments through 340(B) programs (for indigent clients),

·     Network participation to all licensed West Virginia pharmacies seeking participation in the pharmacy network.

·     Prohibited use of spread pricing, claw backs, fees, or make any formulary changes or decisions that favor brand or specialty pharmaceuticals over generic pharmaceuticals.

The RFP is to be issued with a July 1, 2025, effective date.

The measure was discussed in 2023 legislative interim sessions.

Clarifying health insurance coverage for certain emergency services

The insurer shall pay claims for prehospital screening and stabilization of an emergency condition by an ambulance service if the insured is transported to an emergency room of a facility provider or if the patient declines to be transported against medical advice.

The measure attempts to address situations where Emergency Medical Services personnel are called, but a patient either isn’t transported to a hospital or declines transportation.

Based on Committee discussion, including remarks by Senator Eric Tarr of Putnam County, Senate Finance Committee Chair, the bill is seen as having “neutral” costs if EMS personnel can stabilize a patient rather than the patient being transported to an emergency room or hospital, freeing more dollars to secure EMS services.

Although Senate Health and Human Resources Chair Mike Maroney of Marshall County suggested the second reference to Senate Finance be abrogated, Senator Tarr, in response, said the Senate Finance Committee could delve into greater detail about the “net costs” or benefits of having EMS services stabilize patients onsite rather than transporting them to hospitals so they can receive reimbursement, a chief complaint of EMS providers who contend they are not reimbursed that unless a patient is transported to a hospital.

Most Committee discussion, however, dealt with removal of medical evacuation as a reimbursable expense or expense reimbursement as determined to conform to insurance policy guidelines.

Committee testimony, including remarks of Sherri A. Young, Department of Health Cabinet Secretary, indicated federal law comes into play if the patient expires prior to medical evacuation, which could result with insureds being billed for fees to ensure aircraft transfer of patients.

Jody Ratliff, West Virginia Director of Emergency Services, who said he served as a medivac pilot for 12 years, noted only one instance where airlift was declined by a patient.

And, as with Vice Chair Tom Takubo of Kanawha County, a physician, medical airlift is most often dependent upon hospital recommendation.

Senator Patricia Rucker of Jefferson County broached the issue, wondering why those provisions were removed from the bill.

According to Committee Counsel, the bill was narrowed to address “on-the-ground” incidents.

At the end of the discussion, Senator Rucker said, “I guess we’re going to have to deal with another bill” to address the issue.

Relating to the Legislative Oversight Commission on Health and Human Resources Accountability

The Senate Health and Human Resources Committee amended House Bill 4595 to clarify LOCHHRA executive sessions, the proceedings of which are not subject to the state’s Freedom of Information Act (FOIA).

HB4595 permits executive sessions for matters relating to “to investigations of child abuse, nursing home abuse, IDD waiver, adult protective service matter, child protective services, and hospital abuse.”

The Committee expanded items of investigations to include both “abuse” and neglect.”

Additionally, the Senate Health and Human Committee clarified that matters, if warranting a “criminal investigation,” would be referred to the Commission on Special Investigations.

The Committee would have to approve referral to the Commission on Special Investigations.

HB4595 provides LOCHHRA powers and duties to:

·     Make a continuing investigation, study, and review of the practices, policies and procedures of the health care and social services agencies;

·     Make a continuing investigation, study, and review of all matters related to health and social policy in the state;

·     Review program development by the various agencies.

·     Conduct studies on health and human services.

The bill also grants LOCHHRA subpoena powers, which, as discussed in House Health, the Legislature’s committees are granted.

The bill was commended for passage by LOCHHRA.

Relating to the licensure of birthing centers

The bill relates to the licensure of birthing centers and updates procedures for applications and obtaining a license.

Several minimum standards are set forth, including setting the minimum required services and prohibited services. Regulation comes under the Office of Health Facility Licensure and Certification.

The amendment removes the purpose as stated in the introduced bill, updates definitions, and clarifies best practices and evidence-based practices.

Relating to Medicaid dental coverage

With the reorganization of DHHR, the service would come under the Department of Human Services.

Dr. Wayne Dunn, a Parkersburg dentist, was asked whether the coverage was enough. He responded, “If dentures are exempt, that will help. There is a deficiency there, but this helps.”

Relating to adding an athletic trainer to the Board of Physical Therapy

The number of persons on the board are changed and will include four physical therapists (decreased from five), one physical therapist assistant, one licensed athletic trainer, and one citizen member.

The licensed athletic trainer shall be immediately appointed to replace the physical therapist whose term expires next.

Relating to the regulation of behavioral health centers

Oversight will come under the Office of Health Facility Licensure and Certification. Minimum standards are set forth, and a governing body and administrator are designated as a necessity.

Relating to administration of WV Water Pollution Control Act and Underground Carbon Dioxide Sequestration and Storage

West Virginia seeks primacy to speed up carbon sequestration projects, such as hydrogen hubs. The now the bill heads to the Senate Judiciary Committee for additional consideration.

Committee Substitute for Senate Bill 596 would give West Virginia primary regulatory authority from the EPA over class-six injection wells. It also would make permit holders responsible for noncompliance prior to receiving a certificate of completion.

Scott Mandirola from the West Virginia Department of Environmental Protection explained the bill’s modifications. It would clarify enforcement authority for carbon sequestration and require 50 years of monitoring after injection ends before liability is transferred unless the Secretary of DEP approves an earlier timeline. That matches EPA requirements.

Senators asked questions about monitoring wells, the need for primacy, CO2 migration risks, and whether CO2 is a pollutant. It was explained that proper well construction and monitoring is needed to ensure CO2 stays contained. While CO2 itself may not contaminate water, leakage still could impact groundwater reservoirs.

Mr. Mandirola noted that CO2 would be buried in rock formations and far below any ground or well water.

Revising state law regulating farm wineries

HB5295

Authorizing a private outdoor designated area to simultaneously host multiple qualified permit holders

House Bill 5294 aims to revise state law regulating farm wineries in West Virginia. It allows farm wineries to be more competitive with neighboring states by removing some restrictions, such as no longer requiring farm wineries to provide prepared food and instead allowing prepackaged food. It also removes the requirement that samples be complimentary for hard cider sales at farm wineries. The bill passed the Committee with a recommendation to pass and be referred to the Committee on Government Organization.

The Committee adopted a strike-and-insert amendment that made some minor substantive changes to the bill, such as revising the acreage and volume thresholds for different classes of farm wineries. The amendment also incorporated portions of Senate Bill 320 that were not already covered by the introduced version of HB5294.

HB5295 expressly authorizes a private outdoor designated area to simultaneously host multiple qualified permit holders, including a special class S2 license holder and properly insured private fairs and festivals. It clarifies that dual licensing is permitted and that a qualified permit holder operating in a private outdoor designated area may include private fair and festival licensees.

The Committee adopted an amendment to HB5295 that struck language that could have limited local governments’ ability to act on economic development and tourism issues related to private outdoor designated areas. Specifically, it removed language stating that a private outdoor designated area could be found liable for the actions of neighboring permit holders.

The Committee approved the amendment to encourage more tourism and economic development opportunities for municipalities across the state regarding private outdoor designated areas. The bill passed the Committee with an amendment and was recommended to pass and be referred to the Committee on Government Organization.

Law Enforcement Officers Safety Act

The Commissioner is authorized to consult with the Law Enforcement Professional Standards Subcommittee with regard to training. Correctional officers’ powers of arrest are limited and not changed with the bill.

While the bill recognizes Correctional Officers as law enforcement officers, it does not require them to attend the State Police Academy.

The bill brings West Virginia law into compliance with the federal Law Enforcement Officers Safety Act for eligible employees.

Relating to Privacy of Social Care information

The legislation would require individual consent for personal information to be included in a closed-loop referral system for social services. Individuals would have the right to revoke consent at any time. Organizations would be prohibited from selling, licensing, or sharing individually identifiable social care information without consent.

The bill includes exemptions for information protected under HIPAA (Health Insurance Portability and Accountability Act), FERPA (Family Educational Rights and Privacy Act), and the Gramm-Leach-Bliley Act.

Creating Infrastructure Ready Jurisdictions

The Committee amended the statement of legislative intent, reducing it and making changes to the definition section.

The Committee discussed grant-scoring preferences and how federal regulations may affect eligibility. The Committee learned that various political subdivisions, such as counties, public service districts, and school boards, could potentially qualify as infrastructure-ready jurisdictions and receive funding incentives as long as they meet requirements.

The Committee reported the bill to the floor and recommended passage.

35th Day: February 13, 2024 — Last day to introduce bills in the House. House Rule 91a does not apply to originating or supplementary appropriation bills, and does not apply to Senate or House resolutions or concurrent resolutions

41st Day: February 19, 2024 — Last day to introduce bills in the Senate. Senate Rule 14 does not apply to originating or supplementary appropriation bills and does not apply to Senate or House resolutions or concurrent resolutions

47th Day: February 25, 2024 — Bills due out of committees in house of origin to ensure three full days for readings

50th Day: February 28, 2024 — Last day to consider bill on third reading in house of origin; does not include budget or supplementary appropriation bills

60th Day: March 9, 2024 — Adjournment at midnight