H. B. 2901

(By Delegates Fleischauer, Compton,
Coleman, Caputo and Collins)
[Introduced February 25, 1999; referred to the
Committee on Government Organization.]

A BILL to amend and reenact sections one, two and three, article twenty-five-c, chapter thirty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said article by adding thereto fourteen new sections, designated sections two-a, two-b, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen and fifteen, all relating to the patients' bill of rights; defining additional terms; stating legislative purpose and intent; providing that the article applies to all managed care entities operating within the state; providing for notice of certain subscribers' rights; providing for access to personnel and facilities; providing for standards regarding emergency services; providing for choice of health care professionals; providing for the prohibition of gag rules; providing for coverage for drugs and devices; requiring disclosures regarding experimental treatments; providing for quality assurance programs; providing for data systems and confidentiality; providing for clinical decisionmaking; providing for oversight authority; and establishing a grievance procedure, review and appeals.

Be it enacted by the Legislature of West Virginia:
That sections one, two and three, article twenty-five-c, chapter thirty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that said article be further amended by adding thereto fourteen new sections, designated sections two-a, two-b, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen and fifteen, all to read as follows:
§33-25C-1. Title.

This article may be referred to as the "1999 Patients' Bill of Rights."
§33-25C-2. Definitions.
(a) "Appeal" means a formal process whereby an enrollee, whose care has been reduced, denied, or terminated or whereby the enrollee deems the care inappropriate, can contest an adverse grievance decision by the health care services plan.
(a) (b) "Commissioner" means the commissioner of insurance.
(c) "Emergency" means a medical condition, the onset of which is sudden and unexpected, that manifests itself by symptoms of sufficient severity, that a prudent layperson, who possesses an average knowledge of health and medicine, could reasonably assume that the condition requires immediate medical treatment, and could expect the absence of medical attention to result in serious impairment to bodily functions or place the person's health in serious jeopardy.
(d) "Enrollee" means an individual who is enrolled in the managed care entity.
(e) "Expedited review" means a review process which takes no more than seventy-two hours after the review is commenced.
(f) "Experimental treatment" means treatment that, while not commonly used for a particular condition or illness, nevertheless is recognized for treatment of the particular condition or illness, and there is no clearly superior, nonexperimental treatment alternative available to the enrollee.
(g) "Grievance" means a written complaint submitted by or on behalf of the enrollee.
(h) "Health care provider" means a clinic, hospital physician organization, preferred provider organization, independent practice association, or other appropriately licensed provider of health care services or supplies.
(i) "Health care professional" means a physician or other health care practitioner providing health care services.
(j) "Health care services" means services for the diagnosis, prevention or treatment of a health condition, illness, injury or disease.
(k) "Managed care entity" means any entity including a licensed insurance company, hospital or medical service plan, health maintenance organization, limited health services organization, preferred provider organization, third-party administrator or any person or entity that establishes, operates or maintains a network of participating health care professionals.
(b) (l) "Managed care plan" or "plan" means any health maintenance organization or prepaid limited health care organization that provides for the financing and delivery of health care services to persons enrolled in the plan, with financial incentives for persons enrolled in the plan to use the participating health care professionals and procedures covered by the plan.
(m) "Participating practitioner" means a health care professional who has entered into an agreement with a managed care entity to provide health care services to an enrollee in the managed care plan.
(n) "Point of service option" means an option for the enrollee to choose to receive service from a nonparticipating health care professional or provider.
(o) "Primary care practitioner" means a fully licensed health care professional under contract with the plan, who has been designated by the plan to coordinate, supervise, and/or provide ongoing care to the enrollee and includes: (i) Primary care physicians; and (ii) physician assistants and nurse practitioners.
(c) (p) "Provider" means any physician, hospital or other person or organization which is licensed or otherwise authorized in this state to provide health care services or supplies.
(q) "Prudent layperson" is a person without specific medical training for the illness or condition in question who acts as a reasonable person would under similar circumstances.
(r) "Quality assurance" means the ongoing evaluation of the quality of health care provided to enrolles.
§33-25C-2a. Purpose and intent.
The purpose of this article is to ensure that enrollees receive adequate health care services under a managed care system. The intent of this article is to ensure that:
(a) Enrollees have full and timely access to appropriate health care personnel and facilities;
(b) Enrollees have adequate choice among qualified health care professionals;
(c) There is open communication between physicians and enrollees;
(d) Enrollees have access to comprehensive pharmaceutical services;
(e) Enrollees have access to information regarding limits on coverage of experimental treatments;
(f) There is high quality of care within a managed care plan;
(g) Medical decisions are made by the appropriate medical personnel;
(h) Health care professionals within a plan are practitioners in good standing;
(i) Managed care plan data are available as appropriate;
(j) There is full public access to information regarding health care service delivery within plans;
(k) The state has authority to oversee all managed care plans;
(l) There is a fair vehicle for resolving enrollee complaints in a managed care system; and
(m) There is timely resolution of enrollee grievances and appeals.
§33-25C-2b. Applicability and scope.
This article applies to all managed care entities operating within the state.
§33-25C-3. Notice of certain subscriber rights.
All managed care plans must provide to subscribers on a form prescribed by the commissioner a notice of certain subscriber rights. The notice shall address the following areas:
(1) A description of an enrollee's rights and responsibilities, plan benefits, benefit limitations, premiums, and individual cost-sharing requirements;
(1) (2) The ability of the subscriber to pursue grievance and hearing procedures without reprisal from the managed care plan, along with an explanation of the plan's enrollee complaint procedure, including the appeals procedure for care denied, terminated or reduced;
(2) (3) A description of the plan's provider network, including the names and credentials of all participating physicians in the network, which further details how the subscriber may choose providers within the plan;
(3) (4) The subscriber's right to privacy and confidentiality;
(4) (5) The subscriber's ability to examine and offer corrections to their his or her own medical records;
(5) (6) The subscriber's right to be informed of plan policies and any charges for which the subscriber will be responsible;
(6) (7) The subscriber's ability to obtain evidence of the medical credentials of a plan provider such as diploma and board certifications;
(7) (8) The right of subscriber's subscribers to have coverage denials reviewed by appropriate medical professionals consistent with plan review procedures;
(9) A description of procedures to obtain emergency services and out of area services;
(10) The right of an enrollee to disenroll from the plan if his or her physician or specialist leaves the plan; and
(8) (11) Any other areas the commissioner may by rule require.
§33-25C-4. Access to personnel and facilities.
(a) Each managed care plan shall include a sufficient number and type of primary care practitioners and specialists, throughout the service area, to meet the needs of enrollees and to provide meaningful choice. Each managed care plan shall demonstrate that it offers:
(1) An adequate number of accessible acute care hospital services, within a reasonable distance and/or travel time;
(2) An adequate number of accessible primary care practitioners, within a reasonable distance and/or travel time: Provided, That primary care practitioners include family practice and general practice physicians, internists, obstetrician/gynecologists, pediatricians, physician assistants and nurse practitioners;
(3) An adequate number of accessible specialists and subspecialists, within a reasonable distance and/or travel time: Provided, That when the type of medical specialist needed for a specific condition is not represented on the specialty panel, enrollees shall be afforded access to nonparticipating health care professionals at no additional cost to the enrollee;
(4) The availability of specialty medical services, including physical therapy, occupational therapy and rehabilitation services; and
(5) The availability of nonpanel specialists, when a patient's unique medical circumstances warrant it.
(b) Each managed care plan shall provide for continuity of care with established primary care practitioners as follows:
(1) When the health care professional's contract is terminated, the plan shall allow enrollees, at no additional out-of-pocket cost, to continue receiving services from a primary care practitioner whose contract with the plan is terminated without cause. This continuance shall be effective for sixty days when the enrollee requests continued care;
(2) When the employer of the enrollee switches plans, the plan shall allow enrollees, at no additional out-of-pocket cost, to continue receiving services from his or her primary care practitioner. This continuance shall be effective for sixty days when the enrollee requests continued care;
(3) When either the employer of the enrollee switches plans, or when the health care professional's contract is terminated by the plan, the plan shall permit enrollees undergoing active treatment for an episode of illness or at anytime during a pregnancy, to continue to receive medically necessary covered services from the physician for up to sixty days or through post- partum care related to delivery: Provided, That the provider who is rendering services to an enrollee covered by this subsection shall agree: To accept reimbursement from the managed care plan at rates established by the managed care plan for applicable providers; to provide information to the managed care plan on services provided to an enrollee; and to adhere to the utilization review and care management protocols established by the plan;
(4) When a managed care plan becomes insolvent or ceases operations, covered services to enrollees will continue through the period for which a premium has been paid to the managed care plan on behalf of the covered person or until the covered person's discharge from an inpatient facility, whichever is greater. At no time may a participating provider collect or attempt to collect from a covered person any money owed to the provider by the terminated managed care plan; and
(5) Each managed care plan shall provide necessary preventive health services, ambulatory services and acute care services, and ongoing care management services for enrollees with chronic or disabling conditions.
(c) Each managed care plan shall provide telephone access to the managed care plan for sufficient time during business and evening hours to ensure enrollee access for routine care, and twenty-four-hour telephone access to either the plan or a participating provider or practitioner, for emergency care or authorization for care.
(d) Each managed care plan shall establish reasonable standards for waiting times to obtain appointments, except as provided below for emergency services. These standards shall include appointment scheduling guidelines based on the type of health care service, including prenatal care appointments, well-child visits and immunizations, routine physicals, follow-up appointments for chronic conditions and urgent care.
(e) Each managed care plan shall demonstrate that it has developed an access plan to meet the needs of vulnerable and under-served populations:
(1) When a significant number of enrollees in the plan speaks a first language other than English, the plan shall provide access to personnel fluent in languages other than English, to the greatest extent possible; and
(2) The plan shall develop standards for continuity of care following enrollment, including sufficient information on how to access care within the plan.
(f) Each managed care plan shall hold enrollees harmless against claims from participating practitioners in the managed care plan for payment of the cost of covered health services.
§33-25C-5. Emergency services.
(a) Each managed care plan shall cover and reimburse expenses for emergency care obtained, without prior authorization, in situations where a prudent layperson could reasonably believe the condition required immediate attention at the nearest facility.
(b) Each emergency department who treats an enrollee shall call the managed care plan within thirty minutes of the point that the member is stabilized to discuss any proposed services not necessary to stabilize the patient; further, the managed care plan shall respond to a request to provide care from the emergency department within thirty minutes from when the request is made, unless the process provided in this subsection is waived by the managed care plan.
§33-25C-6. Choice of health care professionals.
(a) Each enrollee shall be afforded an adequate choice among managed care plan health care professionals who are accessible and qualified.
(b) Each managed care plan shall permit enrollees to choose their own primary care practitioner from a list of health care professionals within the plan. Each managed care plan shall permit enrollees to switch, at any time, from one primary care practitioner to another within the plan. This list shall be updated as health care professionals are added or removed and shall include:
(1) A sufficient number of primary care practitioners who are accepting new enrollees; and
(2) A sufficient mix of primary care practitioners that reflects a diversity that is adequate to meet the needs of the enrolled population's varied characteristics, including age, gender, race and health status.
(c) Each managed care plan shall develop a system to permit enrollees to use a personal physician other than a primary care physician when the enrollee's medical conditions warrant it. This may include enrollees suffering from chronic diseases as well as those with other special needs.
(d) Each managed care plan shall provide continuity of care and appropriate referral to specialists within the plan, when specialty care is warranted:
(1) Enrollees shall be afforded access to medical specialists on a timely basis; and
(2) Enrollees shall be provided with a choice of specialists when a referral is made.
(e) Each managed care plan shall offer an indemnity option, a point-of-service option and a managed care plan. The point-of-service option may require that the enrollee in the plan pay a reasonable portion of the costs of such out-of-plan care.
(f) Each plan shall provide enrollees with access to a consultation for a second opinion.
§33-25C-7. Gag rules.
(a) A managed care plan may not contract with a health care provider to limit the health care professional's disclosure to an enrollee or on behalf of an enrollee any information relating to his or her medical condition or treatment options.
(b) A health care professional may not be penalized, or his or her contract with the managed care plan terminated, because the health care professional offers referrals, or discusses medically necessary or appropriate care with, or on behalf of, the enrollee:
(1) All treatment options may be discussed; and
(2) Other information, determined by the health care professional to be in the best interests of the enrollee may be disclosed.
(c) A health care professional may not be penalized for discussing financial incentives and financial arrangements between the health care professional and the managed care entity.
§33-25C-8. Drugs and devices.
(a) Each managed care plan shall provide coverage for all drugs and devices approved by the United States food and drug administration, whether or not that drug or device has been approved for the specific treatment or condition, so long as the primary care practitioner or other medical specialist treating the enrollee determines the drug or device is medically necessary and appropriate for the enrollee's condition.
(b) Each managed care service plan shall establish and operate a drug utilization review program that includes the following:
(1) Retrospective review of prescription drugs furnished to enrollees; and
(2) Education of physicians, enrollees and pharmacists regarding the appropriate use of prescription drugs.
(c) Each managed care plan shall provide for a drug utilization review program with ongoing periodic examination of data on outpatient prescription drugs to ensure quality therapeutic outcomes for enrollees:
(1) The drug utilization review program's primary emphasis shall be to enhance quality of care for enrollees by assuring appropriate drug therapy; and
(2) The drug utilization review program shall include the following:
(A) Clinically relevant criteria and standards for drug therapy;
(B) Nonproprietary criteria and standards, developed and revised through an open, professional consensus process; and
(C) Interventions which focus on improving therapeutic outcomes.
(3) The confidentiality of the relationship between enrollees and health care professionals shall be protected at all times.
(d) The health care services plan shall provide an educational outreach program as part of the drug utilization review program:
(1) The outreach program shall be directed to enrollees, pharmacists and other health care professionals; and
(2) The outreach program shall emphasize the appropriate use of prescription drugs.
(e) Prospective review of drug therapy may only deny services in cases of enrollee ineligibility, coverage limitations or fraud; and
(f) The prescribing health care professional shall determine the appropriate drug therapy for the enrollee; no substitutions shall be made without the direct approval of the prescriber.
§33-25C-9. Experimental treatments.
(a) A managed care plan which limits coverage for services shall define the limitation and disclose the limits in any agreement or certificate of coverage. This disclosure shall include:
(1) Who is authorized to make such a determination; and
(2) The criteria the plan uses to determine whether a service is experimental.
(b) A managed care plan that denies coverage for an experimental treatment, procedure, drug or device for an enrollee who has a terminal condition or illness shall provide the enrollee with a denial letter within twenty working days of the submitted request. The letter shall include:
(1) The name and title of the individual making the decision;
(2) A statement setting forth the specific medical and scientific reasons for denying coverage;
(3) A description of alternative treatment, services or supplies covered by the plan, if any; and
(4) A copy of the plan's grievance and appeal procedure.
§33-25C-10. Quality assurance program.
(a) The managed care plan shall develop comprehensive quality assurance standards, adequate to identify, evaluate and remedy problems relating to access, continuity and quality of care. These standards shall include:
(1) An ongoing, written, internal quality assurance program;
(2) Specific written guidelines for quality of care studies and monitoring, including attention to vulnerable populations;
(3) Performance and clinical outcomes-based criteria;
(4) A procedure for remedial action to correct quality problems, including written procedures for taking appropriate corrective action;
(5) A plan for data gathering and assessment; and
(6) A peer review process.
(b) Each managed care plan shall have a process for selection of health care professionals who will be on the plan's participating practitioner list, with written policies and procedures for review and approval used by the plan:
(1) The plan shall establish minimum professional requirements;
(2) The plan shall demonstrate that it has consulted with appropriately qualified health care professionals to establish the requirements;
(3) The plan's process shall include verification of the individual practitioner's license, history of suspension or revocation and liability claims history; and
(4) Each managed care plan shall establish a formal, written, ongoing, process for the reevaluation of all participating physicians within a specified number of years after the initial acceptance: Provided, That reevaluations shall include updates of the previous review criteria and an assessment of the performance pattern based on criteria including enrollee clinical outcomes, number of complaints and malpractice actions.
(c) The plans shall not use a health care professional beyond, or outside of, his or her legally authorized scope of practice.
§33-25C-11. Distribution of consumer guides.
Each plan shall publish and widely distribute on an annual basis a consumer guide on managed care plan performance to assist consumers, employers, and government purchasers in the selection of managed care plans. The comparative performance information in the consumer guide must include, at a minimum: Premium prices; cost-sharing requirements; benefit coverage descriptions; benefit limitations; clinical and service quality indicators; disenrollment rates; and enrollee satisfaction rates.
§33-25C-12. Data systems and confidentiality.
(a) The managed care plan shall provide information on a plan's structure, decision making process, health care benefits and exclusions, cost and cost-sharing requirements, list of contracting providers and health care professionals as well as grievance and appeal procedures to all potential enrollees, all enrollees covered by the plan, and to the state oversight agency.
(b) The managed care plan shall collect and report annually to the state oversight agency specified data including:
(1) Gross outpatient and hospital utilization data;
(2) Enrollee clinical outcome data;
(3) The number and types of enrollee grievances or complaints during the year, the status of decisions, and the average time required to reach a decision; and
(4) The number, amount and disposition of malpractice claims resolved during the year by the managed care plan and any of its participating health care professionals.
(c) All data, as specified in subsections (a) and (b) of this section, shall be reported to the state oversight agency and shall be available to the public on a timely basis.
(d) The managed care plan shall establish written policies and procedures for the handling of medical records and enrollees communications to ensure enrollee confidentiality.
(e) The managed care plan shall ensure the confidentiality of specified enrollee information, including, but not limited to, prior medical history, medical record information and claims information, except where disclosure of this information is required by law.
(f) The managed care plan shall be prohibited from releasing any individual patient record information, unless such release is authorized in writing by the enrollee.
§33-25C-13. Clinical decision making.
(a) The managed care plan shall appoint a medical director who is a physician licensed to practice in this state. The medical director is responsible for treatment policies, protocols, quality assurance activities and utilization management decisions of the plan.
(b) The managed care plan shall inform enrollees of the financial arrangements between the plan and contracting physicians and pharmacists, if those arrangements include incentives or bonuses for restriction of services.
§33-25C-14. Oversight authority.
(a) The insurance commissioner shall identify an agency within state government, or shall contract with an outside entity, to oversee managed care plans operating within the state.
(b) The state oversight agency is hereby authorized to oversee managed care plans operating within this state.
(c) No managed care plan may operate in this state unless it has been legally authorized by the state oversight agency.
(d) The state oversight agency shall perform audits on an annual basis, to review enrollee clinical outcome data, enrollee service data, operational and other financial data.
(e) Nothing in this article may preclude the state oversight agency from investigating complaints, grievances or appeals on behalf of enrollees or health care professionals.
(f) The state oversight agency shall develop:
(1) Standards for compliance of plans regarding mandated requirements; and
(2) Legislative rules relating to types of penalties for violations.
§33-25C-15. Grievance procedures, reviews and appeals.
(a) The managed care plan shall provide written notification to enrollees, in a language calculated to be understood by enrollees, regarding the right to file a grievance. At a minimum, notification shall be given:
(1) Prior to enrollment in the plan; and
(2) At the time care is denied or limited under the plan.
(b) At the time of a denial, the plan shall notify the enrollee of the right to file a grievance:
(1) The notice shall be written; and
(2) The notice shall include the reason for denial, the name of the individual responsible for the decision, the criteria for determination, and the enrollee's right to file a grievance.
(c) The grievance procedure shall include:
(1) Identification of the reviewing body and an explanation of the process of review;
(2) An initial investigation and review;
(3) Notification within a reasonable amount of time of the outcome of the grievance; and
(4) An appeal procedure.
(d) The managed care plan shall set reasonable time limits for each part of the review process, but in no case may the review extend beyond thirty days.
(e) The managed care plan shall provide for expedited review for cases involving an imminent, emergent or serious threat to the health of the enrollee:
(1) The plan shall immediately inform the enrollee of this right; and
(2) The plan must provide the enrollee with a written statement of the disposition or pending status of the grievance within seventy-two hours of the commencement of the review process.
(f) The managed care plan shall report to the state oversight agency the number of grievances and appeals received by the plan within a specified time period including, if applicable, the outcomes or current status of the grievances and/or appeals as well as the average time taken to resolve both grievances and appeals.

NOTE: The purpose of this bill is to amend the "Patient's Bill of Rights" to enhance statutory protection for consumers of managed health care plans.

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

§§33-25C-2a, 2b and 4 through 15 are new; therefore, strike-throughs and underscoring have been omitted.