The West Virginia Briefing | September 18, 2018



Legislators endorse moving state’s foster care program to managed care


Members of the Legislative Oversight Commission on Health and Human Resources Accountability heard an in-the-weeds discussion of accountable care organizations versus managed care organizations at a late afternoon Sept. 17 meeting.


Members voted to write DHHR a letter endorsing moving the state’s foster care program into managed care.


A bill was introduced during the 2018 legislative session mandating the transfer: 4241.  By Del. Westfall, White, Criss, Rohrbach, Ellington, Summers and Hanshaw – Transitioning foster children into managed care (FN) – To Health and Human Resources then Finance


The bill made it out of House Finance . MetroNews reported on Feb. 20, “The House of Delegates Finance Committee passed [HN 4241] Monday that would place thousands of children under foster care into managed care programs through Medicaid.” The bill eventually died at the end of the session. 


While he admits disliking using the word, DHHR Deputy Secretary Jeremiah Samples explained addressing child care issues is “complicated.” DHHR officials have long told legislators issues are complicated when both sides are frustrated by a lack of comprehension and understanding.


As with most issues, it boils down to money.


Caroline Duckworth, program director for KEPRO, Inc., an ASO that has been active in the state for more than a decade, providing services for the Bureau for Medical Services, the Bureau for Children and Families and the Bureau for Behavioral Health an Health Facilities, argued ASOs are the better way to go to serve the needs of children and their families. The administrative funds ACOs receive do not reduce the money available for providing services. They adhere to DHHR policies. They don’t pay bills, handing off that task to another contactor. They assume no financial risk.


Samples said managed care companies have more flexibility in offering programs and don’t have to stick to state guidelines. (They must meet a variety of contract requirements to receive payment.)He said MCOs can build infrastructure—in some cases bringing children placed out of state for treatment back into state for care. (Legislators have, for decades, questioned DHHR on what they see as excessive out-of-state placements, taking money away from in-state providers.) MCOs also have more flexibility in paying providers. Samples called the foster care need a life and death situation.


Joint Health Committee approves preauthorization bill


Members of the Joint Committee on Health approved draft legislation requiring insurers to have available on their websites electronic preauthorization forms along with lists of services requiring preauthorization. The bill establishes deadlines for the insurance companies to act on the preauthorization requests. Members took the action at a Sept. 17 meeting. The bill will be considered during the 2019 session.


The bill is similar to SB 442, which was passed last session by the legislature and vetoed by Gov. Jim Justice. In his in his veto message, Justice noted, “…The legislation purports to void existing contractual agreements governing the prior authorization process by declaring them ‘unenforceable…’Insurance companies, with current contracts that govern response times for prior authorization, would have no alternative but to unilaterally alter these contracts based on the requirements of this bill. The legislative interference with current contracts would be unconstitutional”


The clause on which Justice based his veto is not in this year’s committee-approved bill.


The three physicians who are in the Senate, Health and Human Resources Chairman Tom Takubo from Kanawha County, Vice Chairman Michael Maroney from Marshall County and former Democrats-in-power Health Care Chairman Ron Stollings from Logan County, were cosponsors of the 2018 bill. 


House members unanimously approved the bill, including the House’s two physicians, House Health and Human Resources Chairman Joe Ellington of Mercer County and Cabell physician Matthew Rohrbach


In a social media post following the veto, Maroney wrote, “I am very disturbed by this veto and very concerned about the knowledge of our Governor. There is no way he understands this bill, or he would of signed it. Instead, he let all WVians down to appease the insurance lobby. What a disgrace.”


Gupta moves to March of Dimes


Dr. Rahul Gupta has notified staff at the Bureau for Public Health he will leave his position as commissioner/state health officer to join the March of Dimes as chief medical and health officer. (Here’s a link to the job description.) According to a MoD release, Gupta, “who gained national recognition for his work as public health commissioner for West Virginia, has been named Senior Vice President and Chief Medical and Health Officer at March of Dimes, the nation’s leader in mom and baby health.”


Gupta recently joined the board of directors of the Public Health Accreditation Board.


A May Politico profile named Gupta “The Immigrant Doctor Who’s Solving West Virginia’s Opioids Crisis.” He has been BPH commissioner since January 2015 and was named West Virginian of the year in 2018.


“Before becoming state health officer in January 2015,” the Associated Press reports, “Gupta served as executive director of the Kanawha-Charleston Health Department. [A job he started in March 2009] He played a key role in studying health issues in the aftermath of a 2014 chemical spill in Charleston that tainted drinking water for 300,000 people.”


Attorneys told to draft legislation about vaccine exemption authority 


Attorneys for the Joint Committee on Children and Families were instructed Tuesday at the conclusion of a committee meeting to draft legislation for the 2019 session allowing family physicians or pediatricians to decide if a child should receive an immunization medical exemption, bypassing the state-level approval system in place since 2015.


Much of the testimony during the meeting was consumed by three mothers complaining of trouble with the current exemption system. (BPH General Counsel Brian Skinner told the committee 9 out of 10 exemption applications are approved.) While they were the only speakers on the committee’s agenda, Committee Cochairman Sen. Patricia Rucker, whose biography describes her as a “home schooling mother” (In many cases, children are home schooled because their parents choose not to have them vaccinated.) allowed vaccination proponents to answer questions from committee members.


Dr. Bradley Henry, a Charleston physician and pharmacist and former president of the West Virginia State Medical Association, spoke about the importance of vaccinations, as did West Virginia University physicianKathryn S. Moffett, an expert in pediatric infectious diseases; and State Epidemiologist Dr. Loretta Haddy. Dr. Alvin Moss, another WVU physician who shocked the medical community several years ago with his anti-vaccination rhetoric, said he had written three medical exemptions this year and all were denied. He said physicians should have final say in granting an exemption and called West Virginia’s process the nation’s most cumbersome.


Sen. Rucker has a history of opposing mandatory vaccinations.

We reported July 25: Solons voice concern to BPH over vaccine monitoring because feds failed to submit vaccine reports. The Journal reports, “West Virginia … Delegate Chanda Adkins, R-Raleigh, and Sen. Patricia Rucker, R-Jefferson, contacted state health officials to voice concerns about the state’s vaccine monitoring system after learning the federal Department of Health and Human Services hasn’t submitted required reports on vaccine safety to Congress the last two years.”


Rucker sponsored a bill during the 2018 session dealing with exemptions from mandated immunizations: SB330.   By Sen. Sypolt, Azinger, Karnes, Mann, Maynard and Rucker – Relating to exemptions from mandated immunizations – Health and Human Resources then Judiciary


Canadian arbitrator rules against requiring unvaccinated nurses to wear masks. Precision Vaccinations reports, “The Ontario Nurses’ Association has won a 2nd court decision on a ‘vaccinate or mask’ … policy.


“A group of hospitals in Toronto must abandon a policy of forcing staff to wear surgical masks during the influenza season if they have not received the vaccine, a Canadian arbitrator ruled in a 53-page decision.”




Canada cannabis overdoses increase. The Star reports, “The number of Hamiltonians visiting emergency departments for marijuana overdoses has more than tripled in six years.


“The steady rise of acute cannabis poisoning from 2012 to 2017 chronicled in Hamilton’s proposed public health strategy for non-medical cannabis is raising flags as the drug becomes legal in Canada on Oct. 17.


Progress in opioid crisis. WCJB reports, “Figures from a U.S. government survey … show some progress in the fight against the ongoing opioid addiction crisis with fewer people in 2017 using heroin for the first time compared to the previous year.”


Blue Cross nixes paying for Tennessee OxyContin prescriptions. Governing reports, “The largest health insurance company in Tennessee will stop covering OxyContin prescriptions next year as part of sweeping policy changes intended to combat opioid addiction and make pain pills less valuable on the black market.”


Marijuana stocks climbing The Motley Fool reports, “The big day is rapidly approaching. In just over a month, on Oct. 17, recreational marijuana will go on sale in licensed dispensaries throughout Canada. When fully legal, the sale of adult-use weed is expected to usher in high demand and big dollar figures for the industry.

“In anticipation of this legalization — and the big profits that are projected to follow — marijuana stock investors and Wall Street have pushed the valuations of many pot stocks into nosebleed territory.”


Oregon wants to force taper Medicaid recipients off pain medication in a year. The National Pain Report reports, “Oregon’s Chronic Pain Task Force will gather in Wilsonville, Oregon Thursday morning (September 20).


“The meeting will review written and verbal comments received during the August 9 Value-based Benefits Subcommittee meeting on the Chronic Pain Task Force’s controversial recommendation to force taper Oregon Medicaid patients off opioids in a year.


Joint Finance Committee hears reports on surplus, sports betting, opioid response


West Virginia ended the fiscal year on June 30 with a surplus. For the first time since 2012, the surplus came about without mid-year budget cuts. Tax and Revenue Secretary David Hardy made the report at a Sept. 17 meeting of the Joint Committee on Finance. Hardy said state revenue is $33.4 million above estimates.


Sports betting underway, and dysfunction continues as Interim Lottery Director out, Old Lottery Director Back In


Acting Lottery Commissioner Doug Buffington said  The Greenbrier,  Hollywood Casino at Charles Town Racesand Wheeling Island Casino  each paid the $100,000 fee to allow for sports betting and have the wagering up and running in sports betting lounges Buffington said Mountaineer Casino Racetrack and Resort has not yet filed for a sports betting license, but he expects it to do so.


The “integrity fee” major league teams want the lottery to pay for up-to-the-second information seems to still be a bone of legislative contention. Legislators do not generally favor such a fee. Buffington said the Lottery Commission is currently addressing comments offered in response to a legislative rule.


Senate Finance Chairman Craig Blair said lots of rumors are going around about action the Lottery Commission plans and that they are “disturbing the hell” out of him. He encouraged Buffington to not do “something prematurely until the legislature is back in session and can work with you.”


Then today, Buffington was out, and welcome back Secretary of Administration John Myers who now fills the post that was left open when Alan Larrick stepped down effective Sept. 1.


Larrick was appointed to the job in January 2017.


Before he was confirmed by the Senate, Larrick wrote a letter saying he would step down from his law office, as required by law, but the Charleston Gazette-Mail reported last month that he never did. Larrick was tagged in several photos on Facebook, showing him conducting business deals out of his law office in Beckley.


Myers is no stranger to the West Virginia Lottery. Before he was appointed as secretary of administration he worked at the lottery from 2008-2017 and was acting director from 2015-2017.


Before he started his career in public service, Myers was the manager of corporate administration for Toyota Motor Manufacturing in Buffalo.


Crouch discusses opioid response


Department of Health and Human Resources Secretary Bill Crouch updated legislators on the state’s response to the opioid epidemic, including actions of the Office of Drug Control Policy. Crouch called the opioid epidemic “maybe the biggest challenge the state has ever faced” and cautioned there are no quick fixes.


He said the state expects to receive approximately $27 million in federal funds to fight the opioid epidemic Crouch said the state must widely use the money.

The state is expanding its medically assisted treatment program. Crouch said plans are in the work to involve local health departments in offering MAT. (DHHR officials later clarified participation will be voluntary.) Sen. Mark Drennan encouraged the secretary to closely monitor the program, noting the treatment drugs often create another level of addiction.


Situational awarenessAxios reports, “Experts agree that medication-assisted treatment works — and that it works even better when paired with psychotherapy and long-term care. But those services aren’t always accessible…


“’Increasing the oversight to ensure that all folks get access to MAT + evidence based psychosocial treatment as a condition of insurance reimbursement, especially with Medicaid, would be a good first step,’ said Jay Unick of the University of Maryland.”


We reported in August: DHHR has filed an agency-approved rule with the secretary of state dealing with office-based medication-assisted treatment (69CSR12). The major rule revision comes about because of the passage by the legislature and approval by the governor of SB 273, the governor’s primary bill to address the state’s opioid crisis. Filed with the rule are 64 pages of comments.


According to the filing, “This rule is being amended to comply with changes made by the legislature…to significantly reduce the regulatory burden of the rule and to allow the exercise of professional discretion by medical practitioners.”


The rule filed for public comment removed requirements from 25 sections of the 56-page rule.


While the rule’s stated purpose is to reduce regulatory burden, the main objection equired of physicians prescribing medication-assisted treatment in their offices. Many of the comments mention a letter written to the committee by James O. Berry, associate professor and vice chair of the West Virginia University Department of Behavioral Medicine and Psychiatry and Director of Addictions. 


Dr. Berry wrote, “As a licensed physician in West Virginia, I can prescribe an unlimited supply of Neurotin, Xanax and Adderall to as many patients who may request them. There are no additional rules required by legislators or state agents requiring such items as referral to vocational training or specifying the arrangements needed to be made when I go on vacation. There is no senate bill mandating an inspection by OHFLAC or extensive reporting requirements. Each of these medications mentioned … is diverted and sold on the street. The difference is these are not used to treat SUD [Substance Use Disorders.] …The disease is discriminated against… The challenge is to achieve the proper balance of regulation versus access.”


In many cases, the comments about the rule exceeded the scope of the legislation, and DHHR consistently replied, “The rule provision is consistent with the requirements of the statute.” If specific suggestions were not offered in the comments, the consistent reply was, “The comment is general in nature and offers no specific amendment.” DHHR also noted when the comments generated rule changes.


The rule will be considered by the Legislative Rule-Making Review Committee prior to the 2019 session. Expect lots of negotiation, right up to the passage of the rule by the legislature sometime in March 2019. 


Crouch said 498 drug treatment beds financed by Ryan Brown  funds are set to soon become available. He cautioned federal funds are currently available to pay for treatment but said the funding may be unavailable in subsequent years.


He said quick response teams—teams of addiction professionals who visit those treated for overdoses—are pushing about 20 people a month into treatment in Huntington, which has an established program. Charleston currently has a nascent QRT program, and they are expected to start in other areas.


Senate to vote today (Monday) on opioid bill. Prescription Pulse reports, “The Senate is set to vote late [Monday] afternoon on its massive opioid package… The Senate is already working with the House to reconcile their differences, so they can send a final version to the president’s desk before the midterm elections. The House passed its package, H.R. 6 (115) in June.”


Medical marijuana program stymied because banks won’t take pot money


West Virginia’s medical marijuana program is stymied because the two banks with which the state contracts for banking services will not accept “marijuana money.” Diana Stout, general counsel in the treasurer’s office, explained the banking conundrum to the Joint Committee on Health at a meeting on Sept. 17.


BB&T, with which the state does the majority of its business, and US Bank have informed the treasurer’s office they will not accept money from the medical marijuana program. Since then, Stout said treasurer’s office officials have been working to find a solution but have so far been unsuccessful.


While 30 states and the District of Columbia have passed laws dealing with medical or recreational marijuana, it remains a controlled substance and illegal to possess under federal and state law. The problem happened, as we reported in January, when Attorney General Jeff Sessions rescinded an Obama-era Justice Department memorandum that encouraged U. S. attorneys in states with laws allowing recreational marijuana to “deprioritize” investigations.

This is what the Obama-era memorandum says about medical marijuana: “The Department’s previous memoranda specially addressed the exercise of prosecutorial discretion in states with laws authorizing marijuana cultivation and distribution for medical use. In those contexts, the Department advised that it likely was not an efficient use of federal resources to focus enforcement efforts on seriously ill individuals or their individual caregivers.”


During questioning by Del. Mike Pushkin, Stout admitted she was unaware of any cases successfully prosecuted against banks.


Stout said the treasurer officials have come up with two alternatives to address the situation. One would be opening a state bank to receive money from medical cannabis sales. At a proposed $2 million price tag, this approach was deemed too expensive.


The other possibility is a “closed loop system” that would allow deposits to be made and withdrawals to occur with a single entity. Stout said the treasurer’s office solicited information from 78 banking entities 9mostly state-chartered banks and credit unions) and received only two responses. Stout said a third possibility is the treasurer’s office keeping on hand from deposits the large amount of cash medical marijuana sales are expected to generate. She called this alternative cumbersome, difficult to monitor and expensive.


The treasurer has requested the governor seek an opinion from the attorney general on the legality of the closed system or the state bank. Stout said she is unaware if the attorney general has issued such an opinion.


Committee members voted to send a letter to the governor asking for an update on the opinion request and to ask the speaker of the house and president of the senate to request such an opinion.




Judicial Advisory Commission receiving applications for two judgeships. The Office of the Governor reports, “The Judicial Vacancy Advisory Commission … will receive applications  immediately for the pending vacancy on the First Judicial Circuit serving the Counties of Ohio, Brooke, and Hancock and the pending vacancy on the Judicial Circuit serving the County of Fayette. The deadline for applications is October 9, 2018, and the deadline for submittal of letters of recommendation is October 16, 2018. Interviews will be held on October 23 and 24, 2018.”


Armstead, Jenkins must respond to writs. MetroNews reports, “The state Supreme Court entered two scheduling orders … in connection with the challenges filed following Gov. Jim Justice’s appointments of Third District Congressman Evan Jenkins and former House of Delegates Speaker Tim Armstead to the Court.

“According to one scheduling order, Jenkins and Secretary of State Mac Warner must respond to a writ of mandamus filed by Clay County lawyer Wayne King by the end of … Monday, Sept. 17.


“The second order, in connection with a protest filed by Charleston attorney William Schwartz, gives Jenkins, Armstead, Warner and Gov. Jim Justice until … Wednesday, Sept. 19, to respond to the claims.”


Supreme Court impeachments may alter reproductive rights. Rewire reports, “West Virginia’s Supreme Court of Appeals garnered national attention in August when the state’s House of Delegates voted to impeach the entire bench. This unusual move by the Republican-led state House Judiciary Committee throws not only the fate of the justices into question, but could mean critical changes to reproductive rights in the state.”



Red State Dems waiting on Republican action. The Hill reports, “Red-state Senate Democrats, so far holding the line against Supreme Court nominee Brett Kavanaugh, are expected to wait on centrist Republican Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska) before announcing their own positions.


“No Democrat has yet come out in support of Kavanaugh, more than a week after his confirmation hearings wrapped up. Last year, Democratic Sens. Joe Manchin (W.Va.) and Heidi Heitkamp (N.D.) announced their support for President Trump’s first Supreme Court nominee, Neil Gorsuch, one week after his hearings ended.


Manchin proving resilient in strong Trump State [West Virginia]. The Hill reports, “Fifty days out from the November elections, Democrats are widely seen as favored to retake the House majority and are increasingly seen as having a real chance at winning back the Senate if a series of close races break in their direction…


“In West Virginia, Sen. Joe Manchin (D) is proving resilient in what may be Trump’s strongest state in the nation.”