West Virginia has made progress in healthcare price transparency on several fronts, including implementing an APCD, passing legislation easing access to medical records, and creating annual financial disclosure requirements for facilities in order to determine the reasonableness of healthcare costs among providers. West Virginia also closely regulates hospital prices, requiring hospitals to submit all changes and amendments to hospital charges for approval. However, competition in the insurance market is weak, as only one carrier issues qualified health plans on the individual insurance market and premiums for employer-sponsored plans are some of the highest in the country.
In the 2017 legislative session, West Virginia Governor Jim Justice signed HB 2459, which exempts financially distressed hospitals in acquisition proceedings from going through the traditional Certificate of Need process. In the 2018 legislative session, West Virginia enacted legislation to regulate pharmaceutical costs and transparency. West Virginia passed the Pharmacy Audit Integrity and Transparency Act (SB 46), which provides that a pharmacy may inform consumers of lower cost alternatives and cost share to assist health care consumers, and penalizes any pharmacy benefit managers that attempt to prohibit such disclosure. West Virginia joins a growing number of states that aim to reduce the cost of prescription drugs by increasing transparency around pricing. Additionally, the state also passed HB 4524, which mandates that pharmacists substitute biological prescriptions with lower-costing generic biological drugs.
West Virginia’s most recent legislative session ran from 1/10/2018 – 3/10/2018.
Recent Legislative Developments
|2018||SB 46||This bill (titled the Pharmacy Audit Integrity and Transparency Act) provides that a pharmacy, pharmacist, or pharmacy technician may inform consumers of lower cost alternatives and cost share to assist health care consumers in making informed decisions. It also prohibits pharmacy benefit managers from penalizing a pharmacy, pharmacist, or pharmacy technician for discussing certain information with consumers. Under the bill, pharmacy benefit managers are prohibited from collecting cost shares exceeding the total submitted charges by a pharmacy, pharmacist, or pharmacy technician, and pharmacy benefit managers are limited as to when they may charge certain adjudicated claim fees to a pharmacy, pharmacist, or pharmacy technician. Employee benefit plans under the ERISA or Medicare Part D are excluded from this code section.||Passed – signed by the Governor on 3/10/18. West Virginia Code § 33-51-9.|
|HB 4021||This bill creates a process which permits a person to search for highest value health care; designating article as “Right to Shop”; providing definitions; establishing a Comparable Health Care Service Incentive Program, beginning January 1, 2019; requiring insurance carriers to develop health care transparency tools; patient freedom and choice to seek health care insurance; requiring price transparency; and requiring the Public Employees Insurance Agency to conduct an analysis of the cost effectiveness of implementing an incentive-based program for current enrollees and retirees.||Failed.|
|2017||HB 2327||This bill defines “surprise bills” and sets out to protect consumers from surprise bills in certain circumstances, requires additional disclosures by health care providers, hospitals and insurers and requires insurers to develop an access plan with certain components for consumers, and establish how surprise bills are to be handled in certain circumstances.
“Surprise bill” means an invoice for health care services, other than emergency services, received by a patient in one of three circumstances: (1) An insured receives services from an out-of-network health care provider at an in- network hospital or ambulatory surgery center, where a participating health care provider is unavailable or an out-of-network health care provider renders services without the patient’s knowledge. (2) An insured receives services from an out-of-network health care provider, where the services were referred by an in-network provider without the patient’s express written acknowledgment that the referral is to an out-of-network provider, and that the referral may result in costs not covered in the health plan. (3) An uninsured patient receives services at a hospital or ambulatory surgery center and does not receive the disclosures required in subdivision (1), subsection (b), section four, article fifteen, chapter thirty-three of this code.
|HB 2068||This bill authorizes the board of directors of the West Virginia Health Information Network and the West Virginia Health Care Authority to determine and, with the approval of the Joint Committee on Government and Finance, to implement a method for providing an interoperable health information network, which may include transferring the assets and liabilities of the current health information network to a private nonprofit corporation.||Failed.|
|PATIENT PROTECTION AND TRANSPARENCY ACT: requires the West Virginia Insurance Commissioner to provide on the Department’s website information regarding qualified health plans being offered for sale through the exchange. Required information includes: (i) the names of physicians, hospitals, and other health care providers that are in network; (ii) a list of the type of specialists in network; (iii) exclusions from coverage by category of benefits; (iv) restrictions on use and quantities; (v) the dollar amount of copayments; (vi) the percentage of coinsurance by item and service; (vii) require cost-sharing; (viii) information sufficient to determine whether a drug is on a formulary; (ix) clinical pre-requisites and authorization requirements; (x) a description of how medications will be included/excluded from the deductible; (xi) a description of out-of-pocket costs; (xii) information sufficient to determine whether a specific drug is covered or furnished by a physician/clinic; (xii) an explanation of out-of—network providers or noncovered services; (xiv) the appeals process; and (xv) contact information for the plan.
PHARMACEUTICAL COST MANAGEMENT: would require the Health Care Authority subcommittee to explore requirements and criteria for prescription drug manufacturers to disclose expenditures for advertising, marketing, and promotion based on aggregate national data gathered by federal sources through the ACA.
|Passed — This bill was passed as of 3/18/16 and was amended into West Virginia Code §33-50|
|HB 2924||PHARMACEUTICAL COST MANAGEMENT: would require the Health Care Authority subcommittee to explore requirements and criteria for prescription drug manufacturers to disclose expenditures for advertising, marketing, and promotion based on aggregate national data gathered by federal sources through the ACA.||Failed.|
|2018||HB 4524||This bill requires a pharmacist who receives a prescription for a specific biological product to select a less expensive interchangeable biological product, unless, in the exercise of his or her professional judgment, the pharmacist believes that the less expensive drug is not suitable for the particular patient. The pharmacist must provide notice to the patient regarding the selection of a less expensive interchangeable biological product.||Passed – Governor signed on 3/10/18. West Virginia Code § 30-5-12c.|
|SB 560||Would prohibit a pharmacy benefit manager from charging a pharmacist or pharmacy a fee related to the adjudication of a claim. Would prohibit pharmacy benefit manager from entering into a contract that would prevent disclosure of billed or allowed amounts, reimbursement rates, and out of pocket costs. Would prohibit pharmacy benefit manager from requiring payment for covered prescription that is greater than copayment, allowable claim amount or prescription cost without use of health benefit plan, other prescription benefits and discounts. Would prohibit pharmacy benefit manager from placing trademark or logo on a medical and prescription drug card.||Failed.|
|HB 4287||This bill prohibits a contract between a health care provider and a pharmacy benefit manager from containing a provision that prohibits disclosure of billed or allowed amounts, reimbursement rates, or out-of-pocket costs. No health carrier or pharmacy benefits manager shall require an individual to make a payment at the point of sale for a covered prescription in an amount more than the cheapest option between:
(1) The applicable copayment for such prescription medication;
(2) The allowable claim amount for the prescription medication; or
(3) The amount an individual would pay for the prescription medication if the individual purchased the prescription medication without using a health benefit plan, or any other source of prescription medication benefits or discount.
|HB 4294||The Bureau for Medical Services shall design and establish a wholesale prescription drug importation program in consultation with relevant stakeholders and federal agencies that will meet relevant requirements of 21 U.S.C. § 384, including safety and cost savings. To establish this program, the bureau shall designate a state agency to become a licensed wholesaler for the purpose of seeking federal certification and approval to import safe prescription drugs at low cost for West Virginia’s consumers. The design and implementation of the program must conform to certain criteria, including: (1) The program shall use Canadian suppliers regulated under the appropriate Canadian and provincial laws;(2) The program shall have a process to sample the purity, chemical composition, and potency of imported products; (3) The program shall only import those prescription pharmaceuticals expected to generate substantial savings for West Virginia’s consumers; (4) The program shall ensure imported products will not be distributed, dispensed, or sold outside of West Virginia’s borders; (5) Voluntary participant, state-licensed, pharmacies and administering providers shall only charge individual consumers and health plans the actual acquisition cost of the imported, dispensed product and others.||Failed.|
|HB4527||This bill requires health care insurance policies to provide coverage for services performed by a pharmacist.||Failed.|
|2017||SB 56||Requires insurance companies when setting reimbursement rates for any provider to be set by comparison of similar providers within the geographic area of the provider: Provided, however, that reimbursement rates may not be set by comparison of rates of any out of state facility regardless of its proximity to any provider licensed under the provision.||Failed.|
|2015- 2016||HB 2924||PHARMACEUTICAL COST MANAGEMENT: would require the Health Care Authority to appoint a Counsel on Pharmaceutical Cost Management, which could investigate and make recommendations on schedules for pharmaceutical drugs that remove costs for advertising from the pricing of pharmaceuticals.||Failed.|
|2018||HB2523||This bill proposed to eliminate the Certificate of Need Program.||Failed –Referred to Committee on Health and Human Resources on 1/10/18.|
|2017||HB 2459||Exempts financially distressed hospitals in acquisition proceedings from going through the traditional Certificate of Need process.||Passed –Approved by Governor 4/10/17.|
|HB 2523||Eliminates the Certificate of Need program.||Failed.|
|SB 123||Authorizes the Health Care Authority to promulgate a legislative rule relating to the exemption from the Certificate of Need.||Failed.|
|2015-2016||SB 597||Exempts certain actions of the Health Care Authority from state and federal antitrust laws; sets forth intent to immunize cooperative agreements approved and subject to supervision by the Health Care Authority; establishes that a cooperative agreement that is not approved and subject to supervision by the Health Care Authority shall not have immunity; and allows cooperative agreements between certain hospitals and other hospitals or health care providers in the state. Cooperative agreements provide for the sharing, allocation, consolidation by merger or 8 other combination of assets, or referral of patients, personnel, instructional programs, support 9 services and facilities or medical, diagnostic, or laboratory facilities or procedures or other 10 services traditionally offered by hospitals or other health care providers.||Passed – Signed by Governor as Chapter 203, Mar. 5/13/16. Amended into West Virginia Codes §16-29B-26, 28, and 29.|
Transparency in Healthcare
- West Virginia Codes §9-5-22 & 23 Requires that the Bureau for Medical Services submit an annual report to the legislature respecting Medicaid managed care, to include the following: the name and geographic service area of each managed care network that has contracted with the Bureau; the total number of providers in each managed care network broken down by specialty; the monthly average and total number of members enrolled in each network; the percentage of primary care practices that provide verified continuous phone access with the ability to reach a clinician within 30 minutes of contact; the amount of the average per member per month payments and total payments made; among other metrics and measures. The reports are to be made public on the Bureau’s website.
- West Virginia Codes § 16-29-1 requires that a healthcare provider must furnish a copy of a patient’s medical records upon the written request of the patient or his or her authorized representative within a reasonable time.
- West Virginia Codes § 16-29B-18 subjects healthcare providers to annual financial reporting requirements. A provider must provide a balance sheet, a statement of income and expenses, a statement of cash flows, and other information and reports as the state my prescribe.
- West Virginia Codes § 16-29B-25 directs the health care authority board to carry out analyses and studies of healthcare costs, the financial status of healthcare providers, “and any other appropriate related matters.” The board is permitted to publish and disseminate information “which would be useful to members of the general public in making informed choices about health care providers.”
- West Virginia Codes § 16-5F creates provider financial reporting requirements “to bring about a review as to the reasonableness of the costs of health care services.” Each covered facility must publish a legal advertisement in a qualified newspaper detailing the facility’s assets and liabilities, income and expenses, profit or loss for the period reported, and a statement of ownership. The facility is also required to file with the health care authority board a statement of services available; the total financial need of the facility and the resources with which it expects to meet such needs; the facility chargemaster; a statement of reports made to the federal health care financing administration; a statement of all charges, fees or salaries rendered to the covered facility exceeding a defined sum; a copy of all tax returns; and other cost reports as the board may require. Reports made to the board under this section shall be made available to the public upon request.
- West Virginia Code § 33-4A establishes an all-payer claims database (APCD), implemented as CompareCareWV.gov. APCD is a database for aggregating health care claims data from payers, providers, and other reporting entities in order to compare costs among physicians and health care systems, promote cost containment and facilitate quality improvement. CompareCareWV allows consumers to compare West Virginia hospital charges and quality indicators for provider facilities.
- West Virginia Codes §33-50, the Patient Protection and Transparency Act, requires the commissioner to provide information regarding health plans being offered for sale through the exchange in a formal easily found by a consumer. This information may be provided through links to specific information, including links to the website of each health carrier offering a qualified health plan for sale through the exchange.
- West Virginia Code § 33-51-9, the Pharmacy Audit Integrity and Transparency Act (website URL still pending), provides that a pharmacy may inform consumers of lower cost alternatives and cost share to assist health care consumers in making informed decisions. It also prohibits pharmacy benefit managers from penalizing a pharmacy for discussing certain information with consumers. Pharmacy benefit managers are also prohibited from collecting cost shares exceeding the total submitted charges by a pharmacy, and pharmacy benefit managers are limited as to when they may charge certain adjudicated claim fees to a pharmacy. Employee benefit plans under the ERISA or Medicare Part D are excluded from this code section.
- West Virginia Code § 30-5-12c (website URL still pending) requires a pharmacist who receives a prescription for a specific biological product to select a less expensive interchangeable biological product, unless, in the exercise of his or her professional judgment, the pharmacist believes that the less expensive drug is not suitable for the particular patient. The pharmacist must provide notice to the patient regarding the selection of a less expensive interchangeable biological product.
- West Virginia Codes §§ 33-15-4o through 33-25A-8o sets forth regulations related to prescription step therapy protocol.
- West Virginia Codes § 33-16D-16 nullifies most favored nation clauses as applied to healthcare provider reimbursement rates used by a carrier for a small employer health benefit plan in an agreement between an insurance carrier and a participating provider. A most favored nations clause is an agreement between a payer (such as an insurance company) and a provider that typically requires a provider to give the payer the lowest rate that it gave to any other comparable payer, which can be anticompetitive by encouraging oligopolistic pricing by large payers and increasing barriers for new entrants.
- West Virginia Codes, § 5-16-3 defines the duties of the Director of the Public Employees Insurance Agency in managing the public employees insurance program, to include the following cost-saving initiatives: implementing and evaluating medical home models, establishing accountable care organizations, explore alternative payment methodologies for care delivery (such as capitation payments or risk-sharing), and adopting measures recommended by CMS.
- West Virginia Codes § 16-2L-5 authorizes the state Medicaid agency to contract with provider sponsored networks. The statute articulates the legislature’s intent to exempt such agreements and coordination among health care providers to establish and operate provider sponsored networks from federal anti-trust statutes.
- West Virginia Codes §16-2D prohibits health care providers from acquiring, replacing, or adding to their facilities and equipment, except in specified circumstances, without the prior approval of the West Virginia Health Care Authority through the state’s Certificate of Need process. A Certificate of Need regime aims to reduce healthcare overheard by reducing unnecessary or duplicative services, but can be anticompetitive by increasing regulatory barriers for new entrants.
- West Virginia Codes §16-29B-26 Exempts certain actions of the Health Care Authority from state and federal antitrust laws; sets forth intent to immunize cooperative agreements approved and subject to supervision by the Health Care Authority; establishes that a cooperative agreement that is not approved and subject to supervision by the Health Care Authority shall not have immunity; and allows cooperative agreements between certain hospitals and other hospitals or health care providers in the state. Cooperative agreements provide for the sharing, allocation, consolidation by merger or 8 other combination of assets, or referral of patients, personnel, instructional programs, support 9 services and facilities or medical, diagnostic, or laboratory facilities or procedures or other 10 services traditionally offered by hospitals or other health care providers.
FY 2018 BUDGET
West Virginia’s fiscal year begins on July 1 and ends on June 30 of the following year. West Virginia enacted its budget during a special legislative session. To view West Virginia’s FY 2018 Budget, click here.
On October 21, 2016, a federal district court approved a settlement between St. Mary’s Medical Center, Charleston Area Medical Center, and DOJ. The settlement prohibits hospitals from sharing advertising schemes. DOJ sued the hospitals in April 2016, alleging that the two unlawfully agreed to limit advertising of competing health services.
On July 6, 2016 the FTC voted to abandon its challenge to the merger of Cabell Huntington and St. Mary’s hospitals in light of state legislation that exempted the deal from federal antitrust scrutiny. The West Virginia Healthcare Authority had approved the merger in June, despite the fact that the FTC had tried to block the deal last November. The WV state legislature’s SB 597, which gave the Attorney General and Health Care Authority Jurisdiction over cooperative agreements like the one at issue here and provided for an exemption from federal antitrust scrutiny, went into effect in March 2016.