WEST VIRGINIA LEGISLATURE
2023 REGULAR SESSION
ENROLLED
Committee Substitute for Committee Substitute for Senate Bill 268
By Senators Takubo, Hamilton, Queen, Plymale,
Deeds, and Nelson [Passed March 06, 2023; in effect from passage]
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1 AN ACT to amend and reenact §5-16-2, §5-16-3, §5-16-4, §5-16-5 of the Code of West Virginia,
2 1931, as amended; to repeal §5-16-5b of said code; to amend and reenact §5-16-7, §5-16-
3 7b, §5-16-7c, §5-16-7g, §5-16-8, §5-16-9, §5-16-10, §5-16-11, §5-16-13, §5-16-14, §5-16-
4 15, §5-16-16, §5-16-18, §5-16-23, §5-16-25, and §5-16-26 of said code; to repeal 5-16-28
5 of said code; and to amend said code by adding thereto three new sections, designated
6 §5-16-30, §5-16-31, and §5-16-32, all relating generally to the West Virginia Public
7 Employees Insurance Act; providing definitions; removing antiquated reporting
8 requirement; imposing fiduciary responsibility on finance board members and requiring
9 training; providing requirements for actuary opinions and financial plans; modifying levels
10 of reimbursements to health care providers; modifying public hearing requirements;
11 providing for the use of Governor’s revenue estimates; requiring director to provide certain
12 information to the board; requiring that certain actuary opinions and financial plans include,
13 but not be limited to, the aggregate premium cost-sharing percentages between employers
14 and employees, including the amounts of any subsidization of retired employee benefits, at
15 a level of 80 percent for the employer and 20 percent for employees beginning with the
16 plan year for fiscal year 2024; providing for retention of excess revenues; terminating the
17 Post-July 1, 2010, Employee Trust Fund; removing limitations on benefits for certain
18 services provided for autism spectrum disorder; moving certain provisions of law to other
19 places within the code; modifying provisions relating to coverage for reconstructive surgery
20 following mastectomies; modifying provisions relating to coverage for prescription insulin
21 drugs; providing for health and wellness programs; require PEIA to use networks to
22 provide care to members out of state; clarifying language allowing a PEIA plan to provide
23 benefits for retired employees and their spouses and dependents; requiring employees to
24 pay actuarial value of plan for spouse coverage in certain circumstances; requiring
25 programs that qualify for favorable income tax treatment; providing for optional dental,
26 optical, disability, and prepaid retirement plan, and audiology and hearing-aid service
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27 plans, and preferred provider plans; providing for employers’ payment of PEIA costs;
28 providing for coverage of members of the Legislature; providing for reserve fund and
29 quarterly reports; requiring an independent actuarial study of financial solvency of plan;
30 and providing that amendments made to article shall be incorporated into the plan
31 beginning with plan year 2024.
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 "Agency" or "PEIA" means the Public Employees Insurance Agency created by this article.
4 "Applied behavior analysis" means the design, implementation, and evaluation of
5 environmental modifications using behavioral stimuli and consequences in order to produce
6 socially significant improvement in human behavior and includes the use of direct observation,
7 measurement, and functional analysis of the relationship between environment and behavior.
8 "Autism spectrum disorder" means any pervasive developmental disorder, including
9 autistic disorder, Asperger’s syndrome, Rett syndrome, childhood disintegrative disorder, or
10 Pervasive Development Disorder as defined in the most recent edition of the Diagnostic and
11 Statistical Manual of Mental Disorders of the American Psychiatric Association.
12 "Certified behavior analyst" means an individual who is certified by the Behavior Analyst
13 Certification Board or certified by a similar nationally recognized organization.
14 "Dependent" includes an eligible employee's child under the age of 26 as defined in the
15 Patient Protection and Affordable Care Act.
16 "Device" means a blood glucose test strip, glucometer, continuous glucose monitor
17 (CGM), lancet, lancing device, or insulin syringe used to cure, diagnose, mitigate, prevent, or treat
18 diabetes or low blood sugar, but does not include insulin pumps.
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19 "Director" means the Director of the Public Employees Insurance Agency created by this
20 article.
21 "Distant site" means the telehealth site where the health care practitioner is seeing the
22 patient at a distance or consulting with a patient’s health care practitioner.
23 "Employee" means any person, including an elected officer, who works regularly full-time
24 in the service of the State of West Virginia; and, for the purpose of this article only, the term
25 "employee" also means any person, including an elected officer, who works regularly full-time in
26 the service of a county board of education; a public charter school established pursuant to §18-
27 5G-1 et seq. of this code if the charter school includes in its charter contract entered into pursuant
28 to §18-5G-7 of this code a determination to participate in the Public Employees Insurance
29 program; a county, city, or town in the state; any separate corporation or instrumentality
30 established by one or more counties, cities, or towns, as permitted by law; any corporation or
31 instrumentality supported in most part by counties, cities, or towns; any public corporation charged
32 by law with the performance of a governmental function and whose jurisdiction is coextensive with
33 one or more counties, cities, or towns; any comprehensive community mental health center or
34 intellectually and developmentally disabled facility established, operated, or licensed by the
35 Secretary of the Department of Health and Human Resources pursuant to §27-2A-1 of this code
36 and which is supported in part by state, county, or municipal funds; any person who works
37 regularly full-time in the service of the Higher Education Policy Commission, the West Virginia
38 Council for Community and Technical College Education, or a governing board as defined in §18B-
39 1-2 of this code; any person who works regularly full-time in the service of a combined city-county
40 health department created pursuant to §16-2-1 et seq. of this code; any person designated as a
41 21st Century Learner Fellow pursuant to §18A-3-11 of this code; and any person who works as a
42 long-term substitute as defined in §18A-1-1 of this code in the service of a county board of
43 education: Provided, That a long-term substitute who is continuously employed for at least 133
44 instructional days during an instructional term, and, until the end of that instructional term, is
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45 eligible for the benefits provided in this article until September 1 following that instructional
46 term: Provided, however, That a long-term substitute employed fewer than 133 instructional days
47 during an instructional term is eligible for the benefits provided in this article only during such time
48 as he or she is actually employed as a long-term substitute. On and after January 1, 1994, and
49 upon election by a county board of education to allow elected board members to participate in the
50 Public Employees Insurance Program pursuant to this article, any person elected to a county
51 board of education shall be considered to be an "employee" during the term of office of the elected
52 member. Upon election by the State Board of Education to allow appointed board members to
53 participate in the Public Employees Insurance Program pursuant to this article, any person
54 appointed to the State Board of Education is considered an "employee" during the term of office of
55 the appointed member: Provided further, That the elected member of a county board of education
56 and the appointed member of the State Board of Education shall pay the entire cost of the
57 premium if he or she elects to be covered under this article. Any matters of doubt as to who is an
58 employee within the meaning of this article shall be decided by the director.
59 On or after July 1, 1997, a person shall be considered an "employee" if that person meets
60 the following criteria:
61 (A) Participates in a job-sharing arrangement as defined in §18A-1-1 et seq. of this code;
62 (B) Has been designated, in writing, by all other participants in that job-sharing
63 arrangement as the "employee" for purposes of this section; and
64 (C) Works at least one-third of the time required for a full-time employee.
65 "Employer" means the State of West Virginia, its boards, agencies, commissions,
66 departments, institutions, or spending units; a county board of education; a public charter school
67 established pursuant to §18-5G-1 et seq. of this code if the charter school includes in its charter
68 contract entered into pursuant to §18-5G-7 of this code a determination to participate in the Public
69 Employees Insurance Program; a county, city, or town in the state; any separate corporation or
70 instrumentality established by one or more counties, cities, or towns, as permitted by law; any
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71 corporation or instrumentality supported in most part by counties, cities, or towns; any public
72 corporation charged by law with the performance of a governmental function and whose
73 jurisdiction is coextensive with one or more counties, cities, or towns; any comprehensive
74 community mental health center or intellectually and developmentally disabled facility established,
75 operated, or licensed by the Secretary of the Department of Health and Human Resources
76 pursuant to §27-2A-1 et seq. of this code and which is supported in part by state, county, or
77 municipal funds; a combined city-county health department created pursuant to §16-2-1 et seq. of
78 this code; and a corporation meeting the description set forth in §18B-12-3 of this code that is
79 employing a 21st Century Learner Fellow pursuant to §18A-3-11 of this code but the corporation is
80 not considered an employer with respect to any employee other than a 21st Century Learner
81 Fellow. Any matters of doubt as to who is an "employer" within the meaning of this article shall be
82 decided by the director. The term "employer" does not include within its meaning the National
83 Guard.
84 "Established patient" means a patient who has received professional services, face-to-
85 face, from the physician, qualified health care professional, or another physician or qualified health
86 care professional of the exact same specialty and subspecialty who belongs to the same group
87 practice, within the past three years.
88 "Finance board" means the Public Employees Insurance Agency finance board created
89 by this article.
90 "Health care practitioner" means a person licensed under §30-1-1 et seq. of this code who
91 provides health care services.
92 "Originating site" means the location where the patient is located, whether or not
93 accompanied by a health care practitioner, at the time services are provided by a health care
94 practitioner through telehealth, including, but not limited to, a health care practitioner’s office,
95 hospital, critical access hospital, rural health clinic, federally qualified health center, a patient’s
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96 home, and other nonmedical environments such as school-based health centers, university-based
97 health centers, or the work location of a patient.
98 "Objective evidence" means standardized patient assessment instruments, outcome
99 measurements tools, or measurable assessments of functional outcome. Use of objective
100 measures at the beginning of treatment, during, and after treatment is recommended to quantify
101 progress and support justifications for continued treatment. The tools are not required but their use
102 will enhance the justification for continued treatment.
103 "Person" means any individual, company, association, organization, corporation, or other
104 legal entity.
105 "Plan" means a group hospital and surgical insurance plan or plans, a group prescription
106 drug insurance plan or plans, a group major medical insurance plan or plans, and a group life and
107 accidental death insurance plan or 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
118 or 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
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122 of clinical patient data such as weight, blood pressure, pulse, pulse oximetry, blood glucose, and
123 other condition-specific data; medication adherence monitoring; and interactive video
124 conferencing with or without digital image upload.
125 "Retired employee" means an employee of the state who retired after April 29, 1971, and
126 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
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148 Employees Insurance Agency as a retired employee. As a matter of law, the Public Employees
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 s