COMMITTEE SUBSTITUTE
FOR
H. B. 2091
(By Delegates Douglas, Hutchins, Fleischauer,
Manuel and Caputo)
(Originating in the Committee on
Banking and Insurance)
[March 27, 1997]
A BILL to amend article four, chapter thirty-three of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
twenty; and to amend and reenact section twenty-four,
article twenty-five-a of said chapter, all relating to
prohibiting insurers from denying life or accident and
sickness insurance coverage to an individual who has been or
is the victim of abuse.
Be it enacted by the Legislature of West Virginia:
That chapter article four, thirty-three of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section
twenty; and to amend and reenact section twenty-four, article
twenty-five-a of said chapter, all to read as follows:
CHAPTER 33. INSURANCE.
ARTICLE 4. GENERAL PROVISIONS.
§33-4-20. Cancellation, nonrenewal or limitation of coverage of
life or sickness and accident insurance.
(a) For purposes of this section, the following definitions
shall apply:
(1) "Abuse," as used in this section, means the occurrence
of one or more of the following acts between family or household
members:
(A) Attempting to cause or intentionally, knowingly or
recklessly causing physical harm to another with or without
dangerous or deadly weapons;
(B) Placing another in reasonable apprehension of physical
harm;
(C) Creating fear of physical harm by harassment,
psychological abuse or threatening acts;
(D) Committing either sexual assault or sexual abuse as those
terms are defined in articles eight-b and eight-d, chapter sixty- one of this code;
(E) Holding, confining, detaining or abducting another person
against that person's will;
(F) Intentionally or recklessly damaging, destroying or
taking the tangible property of another individual;
(G) Insulting, taunting or challenging another individual or
engaging in a course of alarming or distressing conduct in a
manner which is likely to provoke a violent or disorderly
response or which is likely to cause humiliation, degradation or
fear in another individual;
(H) Trespassing on or in the property of another individual,
or on or in property from which the trespasser has been excluded
by court order;
(I) Child abuse or neglect, as defined in section three,
article one, chapter forty-nine of this code;
(J) Kidnapping, concealment or removal of a minor child from
his or her custodian or from a person entitled to visitation, as
set forth in sections fourteen through fourteen-e, article two,
chapter sixty-one of this code.
(2) "Family or household member" means current or former
spouses, persons living as spouses, persons who formerly resided
as spouses, parents, children and stepchildren, current or former
sexual or intimate partners, other persons related by blood or
marriage, persons who are presently or in the past have resided
or cohabited together or a person with whom the victim has a
child in common.
(3) "Victim of abuse," as used in this section, means an
individual who has been or is subject to abuse, including but not
limited to an individual who seeks, has sought or should have
sought medical or psychological treatment for abuse, protection
from abuse or shelter from abuse.
(b) For all policies issued or renewed after the effective
date of this section, no person or entity engaged in the business
of providing life or health insurance, or both, in this state
may:
(1) Deny, refuse to issue, refuse to renew, refuse to
reissue, cancel or otherwise terminate an insurance policy or
restrict coverage on any individual because that individual is,
has been or may be the victim of abuse';.
(2) Add any surcharge or rating factor to a premium of an
insurance policy because an individual has been or may be the
victim of abuse;
(3) Exclude or limit coverage for losses or deny a claim incurred because an individual has been or may be the victim of
abuse; or
(4) Require as part of the application process any
information regarding whether that individual has been or may be
the victim of abuse.
(c) Nothing in this section may be construed to prohibit a
person from declining to issue an insurance policy insuring the
life of an individual who is or has been the victim of abuse if
the perpetrator of abuse is the applicant or would be the owner
of the insurance policy.
(d) Nothing in this section may be construed to prohibit a
person from underwriting or rating a risk on the basis of a
preexisting physical or mental condition, even if the condition
had been caused by abuse:
Provided, That:
(1) The person routinely underwrites or rates the condition
in the same manner with respect to an insured or an applicant who
is not a victim of abuse;
(2) The fact that an individual is, has been, or may be the
victim of abuse may not be considered a physical or mental
condition; and
(3) The underwriting or rating is not used to evade the
intent of this law or any other provision of law. A person may
not be held civilly or criminally liable for any cause of action
which may be brought because of compliance with this section.
§33-25A-24. Statutory construction and relationship to other
laws.
(a) Except as otherwise provided in this article, provisions of the insurance laws and provisions of hospital or medical
service corporation laws are not applicable to any health
maintenance organization granted a certificate of authority under
this article. The provisions of this article shall not apply to
an insurer or hospital or medical service corporation licensed
and regulated pursuant to the insurance laws or the hospital or
medical service corporation laws of this state except with
respect to its health maintenance corporation activities
authorized and regulated pursuant to this article. The
provisions of this article shall not apply to an entity properly
licensed by a reciprocal state to provide health care services to
employer groups, where residents of West Virginia are members of
an employer group, and the employer group contract is entered
into in the reciprocal state. For purposes of this subsection,
a "reciprocal state" means a state which physically borders West
Virginia and which has subscriber or enrollee hold harmless
requirements substantially similar to those set out in section
seven-a of this article.
(b) Factually accurate advertising or solicitation regarding
the range of services provided, the premiums and copayments
charged, the sites of services and hours of operation, and any
other quantifiable, nonprofessional aspects of its operation by
a health maintenance organization granted a certificate of
authority, or its representative shall not be construed to
violate any provision of law relating to solicitation or
advertising by health professions:
Provided, That nothing
contained in this subsection shall be construed as authorizing any solicitation or advertising which identifies or refers to any
individual provider or makes any qualitative judgment concerning
any provider.
(c) Any health maintenance organization authorized under this
article shall not be considered to be practicing medicine and is
exempt from the provisions of chapter thirty of this code,
relating to the practice of medicine.
(d) The provisions of section
s fifteen
and twenty, article
four (general provisions); section seventeen, article six
(noncomplying forms); article six-c (guaranteed loss ratio);
article seven (assets and liabilities); article eight
(investments); article nine (administration of deposits); article
twelve (agents, brokers, solicitors and excess line); section
fourteen, article fifteen (individual accident and sickness
insurance); section sixteen, article fifteen (coverage of
children); section eighteen, article fifteen (equal treatment of
state agency); section nineteen, article fifteen (coordination of
benefits with medicaid); article fifteen-b (uniform health care
administration act); section three, article sixteen (required
policy provisions); section three-f, article sixteen (treatment
of temporomandibular disorder and craniomandibular disorder);
section eleven, article sixteen (coverage of children); section
thirteen, article sixteen (equal treatment of state agency);
section fourteen, article sixteen (coordination of benefits with
medicaid); article sixteen-a (group health insurance conversion);
article sixteen-c (small employer group policies); article
sixteen-d (marketing and rate practices for small employers); article twenty-seven (insurance holding company systems); article
thirty-four-a (standards and commissioner's authority for
companies deemed to be in hazardous financial condition); article
thirty-five (criminal sanctions for failure to report
impairment); article thirty-seven (managing general agents); and
article thirty-nine (disclosure of material transactions) shall
be applicable to any health maintenance organization granted a
certificate of authority under this article. In circumstances
where the code provisions made applicable to health maintenance
organizations by this section refer to the "insurer", the
"corporation" or words of similar import, the language shall be
construed to include health maintenance organizations.
(e) Any long-term care insurance policy delivered or issued
for delivery in this state by a health maintenance organization
shall comply with the provisions of article fifteen-a of this
chapter.
(f) A health maintenance organization granted a certificate
of authority under this article shall be exempt from paying
municipal business and occupation taxes on gross income it
receives from its enrollees, or from their employers or others on
their behalf, for health care items or services provided directly
or indirectly by the health maintenance organization. This
exemption applies to all taxable years through the thirty-first
day of December, one thousand nine hundred ninety-six. The
commissioner and the tax department shall conduct a study of the
appropriations of imposition of the municipal business and
occupation tax or other tax on health maintenance organizations, and shall report to the regular session of the Legislature, one
thousand nine hundred ninety-seven, on their findings,
conclusions and recommendations, together with drafts of any
legislation necessary to effectuate their recommendations.