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Introduced Version House Bill 4466 History

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Key: Green = existing Code. Red = new code to be enacted
H. B. 4466


(By Delegates Webster, Caputo, DeLong, Fragale, M. Poling, White, Morgan, Miley, Hrutkay, Proudfoot and Fleischauer)

[Introduced February 8, 2008; referred to the

Committee on the Judiciary.]




A BILL to amend and reenact §33-2-16 and §33-2-17 of the Code of West Virginia, 1931, as amended, relating to the Insurance Commissioner's Office of Consumer Advocacy; purpose; qualifications; and powers and duties.

Be it enacted by the Legislature of West Virginia:
That §33-2-16 and §33-2-17 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
§33-2-16. Office of Consumer Advocacy established; Director of Consumer Advocacy; promulgation of rules.

(a) There is hereby created within the agency of the Insurance Commissioner the independent Office of Consumer Advocacy to represent the interests of insurance consumers in this state. The agency shall consist of a Director of the Office of Consumer Advocacy and such employees as may be authorized by law.
(b) The position of Director of the Office of Consumer Advocacy is a full-time position. The Director shall be an attorney licensed in the State of West Virginia. The Director shall be appointed by the Governor for a term of four years to coincide with the term of the Governor and may be discharged only for failure to carry out the duties of the office or for other good and sufficient cause: Provided, That the current Director of the Office of Consumer Advocacy or other appointee of the Commissioner shall continue in the position until the Governor appoints a new Director.
(c) To be eligible to serve as Director of the Office of Consumer Advocacy, a person must:
(1) be licensed to practice law in this state;
(2) have demonstrated a strong commitment to and involvement in efforts to safeguard the rights of the public; and
(3) possess the knowledge and experience necessary to practice effectively in insurance proceedings.
(d) A person is not eligible for appointment as Director of the Office of Consumer Advocacy if the person or the person's spouse:
(1) is employed by or participates in the management of a business entity or other organization regulated by or receiving funds from the Commissioner;
(2) owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization regulated by or receiving funds from the Commissioner or the office; or
(3) uses or receives a substantial amount of tangible goods, services, or funds from the Commissioner or the office, other than compensation or reimbursement authorized by law for Office of Consumer Advocacy membership, attendance, or expenses.
(b e) The Insurance Commissioner shall provide office space, equipment and supplies for the office.
(c f) The Director may promulgate rules pursuant to article three, chapter twenty-nine-a of this code in order to effect the purposes of this section and sections seventeen and eighteen of this article.
(d g) On or before the first day of each regular session of the Legislature, the Director shall file with the Governor, the Clerk of the Senate and the Clerk of the House of Delegates a report detailing the actions taken by the division Office of Consumer Advocacy in the preceding calendar year.
§33-2-17. Powers and duties of the Office of Consumer Advocacy
(a) In addition to the authority established under the rules promulgated by the Director, the Office of Consumer Advocacy is authorized to: The Office of Consumer Advocacy:
(1) may assess the impact of insurance rates, rules, and forms on insurance consumers in this state; and
(2) shall advocate in the office's own name positions determined by the public counsel to be most advantageous to a substantial number of insurance consumers.
(3) may appear or intervene, as a party or otherwise, as a matter of right before the commissioner or department on behalf of insurance consumers, as a class, in matters involving:
(A) rates, rules, and forms affecting:
(i) property and casualty insurance;
(ii) title insurance;
(iii) credit life insurance;
(iv) credit accident and health insurance; or
(v) any other line of insurance for which the commissioner or department promulgates, sets, adopts, or approves rates, rules, or forms;
(B) rules affecting life, health, or accident insurance; or
(C) withdrawal of approval of policy forms if the public counsel presents persuasive evidence to the department that the forms do not comply with this code, a rule adopted under this code, or any other law;
(4) may initiate or intervene as a matter of right or otherwise appear in a judicial proceeding involving or arising from an action taken by an administrative agency in a proceeding in which the Office of Consumer Advocacy previously appeared under the authority granted by this article;
(5) may appear or intervene, as a party or otherwise, as a matter of right on behalf of insurance consumers as a class in any proceeding in which the public counsel determines that insurance consumers are in need of representation; and
(6) may appear or intervene before the commissioner as a party or otherwise on behalf of small commercial insurance consumers, as a class, in a matter involving rates, rules, or forms affecting commercial insurance consumers, as a class, in any proceeding in which the Office of Consumer Advocacy determines that small commercial consumers are in need of representation.
(7) may recommend legislation to the legislature that the Office of Consumer Advocacy determines would positively affect the interests of insurance consumers.

(1 8) Institute may institute, intervene in, or otherwise participate in, as an advocate for the public interest and the interests of insurance consumers, proceedings in state and federal courts, before administrative agencies or before the Health Care Authority, concerning applications or proceedings before the Health Care Authority or the review of any act, failure to act or order of the Health Care Authority;
(2 9) At may at the request of one or more policyholders, or whenever the public interest is served, to advocate the interests of those policyholders in proceedings arising out of any filing made with the Insurance Commissioner by any insurance company or relating to any complaint alleging an unfair or deceptive act or practice in the business of insurance;
(3 10) At may at the request of one or more third-party claimant who does not have legal representation at a hearing on his or her claim, or whenever the public interest is served, to advocate the interests of those third-party claimants in proceedings arising out of any filing made with the Insurance Commissioner by any insurance company or relating to any third-party complaint alleging an unfair claims settlement practice;
(4 11) Institute may institute, intervene in or otherwise participate in, as an advocate for the public interest and the interests of insurance consumers, proceedings in state and federal courts, before administrative agencies, or before the Insurance Commissioner, concerning applications or proceedings before the Commissioner or the review of any act, failure to act or order of the Insurance Commissioner;
(5 12) Review and shall compile information, data and studies of the reasonable and customary rate schedules of health care providers and health insurers for the purposes of reviewing, establishing, investigating, or supporting any policy regarding health care insurance rates;
(6 13) Exercise may exercise all the same rights and powers regarding examination and cross-examination of witnesses, presentation of evidence, rights of appeal and other matters as any party in interest appearing before the Insurance Commissioner or the Health Care Authority;
(7 14) Hire may hire consultants, experts, lawyers, actuaries, economists, statisticians, accountants, clerks, stenographers, support staff, assistants and other personnel necessary to carry out the provisions of this section and sections sixteen and eighteen of this article, which personnel shall be paid from special revenue funds appropriated for the use of the office;
(8 15) Contract may contract for the services of technically qualified persons in the area of insurance matters to assist in the preparation and presentation of matters before the courts, the Insurance Commissioner, administrative agencies or the Health Care Authority, which persons shall be paid from special revenue funds appropriated for the use of the office;
(9 16) Make may make recommendations to the Legislature concerning legislation to assist the Office in the performance of its duties;
(10 17) Communicate may communicate and exchange data and information with other federal or state agencies, divisions, departments or officers and with other interested parties, including, but not limited to, health care providers, insurance companies, consumers or other interested parties; and
(11 18) Perform may perform other duties to effect the purposes of the Office office of consumer advocacy; and
(19) shall prepare an annual budget for presentation to the Legislature by the Commissioner, which must be adequate to carry out the duties of the Office of Consumer Advocacy.
(b) The provisions of this section do not apply to any filing made by an insurance company, or act or order performed or issued by the Commissioner, or complaint filed by a policyholder with the Commissioner prior to the thirtieth day of June, one thousand nine hundred ninety-one. All proceedings and orders in connection with these prior matters shall be governed by the law in effect at the time of the filing, or performance or issuance of the act or order. (b) The Office of Consumer Advocacy may not intervene or appear in:
(1) any proceeding or hearing before the commissioner , or any other proceeding, that relates to approval or consideration of an individual charter, license, certificate of authority, acquisition, merger, or examination; or
(2) any proceeding concerning the solvency of an individual insurer, a financial issue, a policy form, advertising, or another regulatory issue affecting an individual insurer or agent.
(c) Nothing in this section may be construed to authorize the Director to participate in the review and consideration of any rate filing made pursuant to this chapter.
(c) The Office of Consumer Advocacy:

(1) is entitled to the same access as a party, other than the Commissioner's staff, to Commission records available in a proceeding before the Commissioner under the authority granted to the office of consumer advocacy by this article; and
(2) is entitled to obtain discovery of any nonprivileged matter that is relevant to the subject matter involved in a proceeding or submission before the Commissioner as authorized by this chapter.

Note: The bill expands the powers of the Office of Consumer Advocacy within in the Office of the Insurance Commissioner. Additionally, the bill provides specific qualifications for the Director of the Office of Consumer Advocacy.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

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