WEST VIRGINIA LEGISLATURE
2023 REGULAR SESSION
Introduced House Bill 2534
By Delegates Summer and Forsht [Introduced January 13, 2023; Referred to the Committee on Banking and Insurance then Finance]
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1 A BILL to repeal §5-16-5a and §5-16-5b of the Code of West Virginia, 1931, as amended; to
2 amend and reenact §5-16-2, §5-16-3, §5-16-4, §5-16-5, §5-16-7, §5-16-7b, §5-16-7c, §5-
3 16-7g, §5-16-8, §5-16-9, §5-16-10, §5-16-11, §5-16-13, §5-16-14, §5-16-15, §5-16-16, §5-
4 16-18, §5-16-23, §5-16-25, §5-16-26, §5-16-28; and to amend said code by adding thereto
5 one new section, designated §5-16-30; relating to public employees insurance.
Be it enacted by the Legislature of West Virginia:
ARTICLE 16. WEST VIRGINIA PUBLIC EMPLOYEES INSURANCE ACT.
§5-16-2. Definitions.
1 The following words and phrases as used in this article, unless a different meaning is
2 clearly indicated by the context, have the following meanings:
3 (1) "Agency" means the Public Employees Insurance Agency created by this article.
4 "Dependent" includes an eligible employee's child under the age of 25 as defined in the
5 Patient Protection and Affordable Care Act.
6 "Applied behavior analysis" means the design, implementation, and evaluation of
7 environmental modifications using behavioral stimuli and consequences in order to produce
8 socially significant improvement in human behavior and includes the use of direct observation,
9 measurement, and functional analysis of the relationship between environment and behavior.
10 "Autism spectrum disorder" means any pervasive developmental disorder including
11 autistic disorder, Asperger’s syndrome, Rett syndrome, childhood disintegrative disorder, or
12 Pervasive Development Disorder as defined in the most recent edition of the Diagnostic and
13 Statistical Manual of Mental Disorders of the American Psychiatric Association.
14 "Certified behavior analyst" means an individual who is certified by the Behavior Analyst
15 Certification Board or certified by a similar nationally recognized organization.
16 (2) "Director" means the Director of the Public Employees Insurance Agency created by
17 this article.
18 "Distant site" means the telehealth site where the health care practitioner is seeing the
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19 patient at a distance or consulting with a patient’s health care practitioner.
20 (3) "Employee" means any person, including an elected officer, who works regularly full-
21 time in the service of the State of West Virginia and, for the purpose of this article only, the term
22 "employee" also means any person, including an elected officer, who works regularly full-time in
23 the service of a county board of education; a public charter school established pursuant to §18-
24 5G-1 et seq. of this code if the charter school includes in its charter contract entered into pursuant
25 to §18-5G-7 of this code a determination to participate in the Public Employees Insurance
26 program; a county, city, or town in the State; any separate corporation or instrumentality
27 established by one or more counties, cities, or towns, as permitted by law; any corporation or
28 instrumentality supported in most part by counties, cities, or towns; any public corporation charged
29 by law with the performance of a governmental function and whose jurisdiction is coextensive with
30 one or more counties, cities, or towns; any comprehensive community mental health center
31 or intellectually and developmentally disabled facility established, operated, or licensed by the
32 Secretary of Health and Human Resources pursuant to §27-2A-1 of this code and which is
33 supported in part by state, county, or municipal funds; any person who works regularly full-time in
34 the service of the Higher Education Policy Commission, the West Virginia Council for Community
35 and Technical College Education or a governing board, as defined in §18B-1-2 of this code; any
36 person who works regularly full-time in the service of a combined city-county health department
37 created pursuant to §16-2-1 et seq. of this code; any person designated as a 21st Century Learner
38 Fellow pursuant to §18A-3-11 of this code; and any person who works as a long-term substitute as
39 defined in §18A-1-1 of this code in the service of a county board of education: Provided, That a
40 long-term substitute who is continuously employed for at least 133 instructional days during an
41 instructional term, and, until the end of that instructional term, is eligible for the benefits provided in
42 this article until September 1 following that instructional term: Provided, however, That a long-term
43 substitute employed fewer than 133 instructional days during an instructional term is eligible for
44 the benefits provided in this article only during such time as he or she is actually employed as a
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45 long-term substitute. On and after January 1, 1994, and upon election by a county board of
46 education to allow elected board members to participate in the Public Employees Insurance
47 Program pursuant to this article, any person elected to a county board of education shall be
48 considered to be an "employee" during the term of office of the elected member. Upon election by
49 the state Board of Education to allow appointed board members to participate in the Public
50 Employees Insurance Program pursuant to this article, any person appointed to the state Board of
51 Education is considered an "employee" during the term of office of the appointed
52 member: Provided further, That the elected member of a county board of education and the
53 appointed member of the state Board of Education shall pay the entire cost of the premium if he or
54 she elects to be covered under this article. Any matters of doubt as to who is an employee within
55 the meaning of this article shall be decided by the director.
56 On or after July 1, 1997, a person shall be considered an "employee" if that person meets
57 the following criteria:
58 (A) Participates in a job-sharing arrangement as defined in §18A-1-1 of this code;
59 (B) Has been designated, in writing, by all other participants in that job-sharing
60 arrangement as the "employee" for purposes of this section; and
61 (C) Works at least one-third of the time required for a full-time employee.
62 (4) "Employer" means the State of West Virginia, its boards, agencies, commissions,
63 departments, institutions, or spending units; a county board of education; a public charter school
64 established pursuant to §18-5G-1 et seq. of this code if the charter school includes in its charter
65 contract entered into pursuant to §18-5G-7 of this code a determination to participate in the Public
66 Employees Insurance Program; a county, city, or town in the state; any separate corporation or
67 instrumentality established by one or more counties, cities, or towns, as permitted by law; any
68 corporation or instrumentality supported in most part by counties, cities, or towns; any public
69 corporation charged by law with the performance of a governmental function and whose
70 jurisdiction is coextensive with one or more counties, cities or towns; any comprehensive
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71 community mental health center or intellectually and developmentally disabled facility established,
72 operated or licensed by the Secretary of Health and Human Resources pursuant to §27-2A-1 of
73 this code and which is supported in part by state, county or municipal funds; a combined city-
74 county health department created pursuant to §16-2-1 et seq. of this code; and a corporation
75 meeting the description set forth in §18B-12-3 of this code that is employing a 21st Century
76 Learner Fellow pursuant to §18A-3-11 of this code but the corporation is not considered an
77 employer with respect to any employee other than a 21st Century Learner Fellow. Any matters of
78 doubt as to who is an "employer" within the meaning of this article shall be decided by the director.
79 The term "employer" does not include within its meaning the National Guard.
80 "Established patient" means a patient who has received professional services, face-to-
81 face, from the physician, qualified health care professional, or another physician or qualified health
82 care professional of the exact same specialty and subspecialty who belongs to the same group
83 practice, within the past three years.
84 (5) "Finance board" means the Public Employees Insurance Agency finance board created
85 by this article.
86 "Health care practitioner" means a person licensed under §30-1-1 et seq. of this code who
87 provides health care services.
88 "Originating site" means the location where the patient is located, whether or not
89 accompanied by a health care practitioner, at the time services are provided by a health care
90 practitioner through telehealth, including, but not limited to, a health care practitioner’s office,
91 hospital, critical access hospital, rural health clinic, federally qualified health center, a patient’s
92 home, and other nonmedical environments such as school-based health centers, university-based
93 health centers, or the work location of a patient.
94 "Objective evidence" means standardized patient assessment instruments, outcome
95 measurements tools, or measurable assessments of functional outcome. Use of objective
96 measures at the beginning of treatment, during, and after treatment is recommended to quantify
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97 progress and support justifications for continued treatment. The tools are not required but their use
98 will enhance the justification for continued treatment.
99 (6) "Person" means any individual, company, association, organization, corporation or
100 other legal entity. including, but not limited to, hospital, medical or dental service corporations;
101 health maintenance organizations or similar organization providing prepaid health benefits; or
102 individuals entitled to benefits under the provisions of this article
103 (7) "Plan" unless the context indicates otherwise, means the medical indemnity plan, the
104 managed care plan option, or the group life insurance plan offered by the agency. a group hospital
105 and surgical insurance plan or plans, a group prescription drug insurance plan or plans, a group
106 major medical insurance plan or plans, and a group life and accidental death insurance plan or
107 plans.
108 "Prescription insulin drug" means a prescription drug that contains insulin and is used to
109 treat diabetes, and includes at least one type of insulin in all of the following categories:
110 (1) Rapid-acting;
111 (2) Short-acting;
112 (3) Intermediate-acting;
113 (4) Long-acting;
114 (5) Pre-mixed insulin products;
115 (6) Pre-mixed insulin/GLP-1 RA products; and
116 (7) Concentrated human regular insulin.
117 "Primary coverage" means individual or group hospital and surgical insurance coverage or
118 individual or group major medical insurance coverage or group prescription drug coverage in
119 which the spouse or dependent is the named insured or certificate holder.
120 "Remote patient monitoring services" means the delivery of home health services using
121 telecommunications technology to enhance the delivery of home health care, including monitoring
122 of clinical patient data such as weight, blood pressure, pulse, pulse oximetry, blood glucose, and
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123 other condition-specific data; medication adherence monitoring; and interactive video
124 conferencing with or without digital image upload.
125 (8) "Retired employee" means an employee of the state who retired after April 29, 1971,
126 and an employee of the Higher Education Policy Commission, the Council for Community and
127 Technical College Education, a state institution of higher education or a county board of education
128 who retires on or after April 21, 1972, and all additional eligible employees who retire on or after
129 the effective date of this article, meet the minimum eligibility requirements for their respective state
130 retirement system and whose last employer immediately prior to retirement under the state
131 retirement system is a participating employer in the state retirement system and in the Public
132 Employees Insurance Agency: Provided, That for the purposes of this article, the employees who
133 are not covered by a state retirement system, but who are covered by a state-approved or state-
134 contracted retirement program or a system approved by the director, shall, in the case of education
135 employees, meet the minimum eligibility requirements of the State Teachers Retirement System
136 and in all other cases, meet the minimum eligibility requirements of the Public Employees
137 Retirement System and may participate in the Public Employees Insurance Agency as retired
138 employees upon terms as the director sets by rule as authorized in this article. Employers with
139 employees who are, or who are eligible to become, retired employees under this article shall be
140 mandatory participants in the Retiree Health Benefit Trust Fund created pursuant to §5-16D-1 et
141 seq. of this code. Nonstate employers may opt out of the West Virginia other post-employment
142 benefits plan of the Retiree Health Benefit Trust Fund and elect to not provide benefits under the
143 Public Employees Insurance Agency to retirees of the nonstate employer, but may do so only upon
144 the written certification, under oath, of an authorized officer of the employer that the employer has
145 no employees who are, or who are eligible to become, retired employees and that the employer
146 will defend and hold harmless the Public Employees Insurance Agency from any claim by one of
147 the employer’s past, present, or future employees for eligibility to participate in the Public
148 Employees Insurance Agency as a retired employee. As a matter of law, the Public Employees
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149 Insurance Agency shall not be liable in any respect to provide plan benefits to a retired employee
150 of a nonstate employer which has opted out of the West Virginia other post-employment benefits
151 plan of the Retiree Health Benefit Trust Fund pursuant to this section.
152 "Telehealth services" means the use of synchronous or asynchronous telecommunications
153 technology or audio only telephone calls by a health care practitioner to provide health care
154 services, including, but not limited to, assessment, diagnosis, consultation, treatment, and
155 monitoring of a patient; transfer of medical data; patient and professional health-related education;
156 public health services; and health administration. The term does not include e-mail messages, or
157 facsimile transmissions.
158 "Virtual telehealth" means a new patient or follow-up patient for acute care that does not
159 require chronic management or scheduled medications.
§5-16-3. Composition of Public Employees Insurance Agency; appointment, qualifications,
compensation and duties of director of agency; employees; civil service coverage.
1 (a) The Public Employees Insurance Agency consists of the director, the Finance Board,
2 the Advisory Board and any employees who may be authorized by law. The director shall be
3 appointed by the Governor, with the advice and consent of the Senate, and serves at the will and
4 pleasure of the Governor. The director shall have at least three years' experience in health or
5 governmental health benefit administration as his or her primary employment duty prior to
6 appointment as director. The director shall receive actual expenses incurred in the performance of
7 official business. The director shall employ any administrative, technical and clerical employees
8 required for the proper administration of the programs provided in this article. The director shall
9 perform the duties that are required of him or her under the provisions of this article and is the
10 Chief Administrative Officer of the Public Employees Insurance Agency. The director may employ
11 a deputy director.
12 (b) Except for the director, his or her personal secretary, the deputy director and the chief
13 financial officer, all positions in the agency shall be included in the classified service of the civil
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14 service system pursuant to article six, chapter twenty-nine §29-6-1 et seq. of this code.
15 (c) The director is responsible for the administration and management of the Public
16 Employees Insurance Agency as provided in this article and in connection with his or her
17 responsibility may make all rules necessary to effectuate the provisions of this article. Nothing in
18 §5-16-4 or §5-16-5, limits the director's ability to manage on a day-to-day basis the group
19 insurance plans required or authorized by this article, including, but not limited to, administrative
20 contracting, studies, analyses and audits, eligibility determinations, utilization management
21 provisions and incentives, provider negotiations, provider contracting and payment, designation of
22 covered and noncovered services, offering of additional coverage