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ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2745
(By Delegates Perry, Hartman, Walters, Hall,
Ashley and Azinger)
(By Request of the Insurance Commissioner)
[Passed March 12, 2011; in effect ninety days from passage.]
AN ACT
amend and reenact §33-4-14 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto a
new article, designated §33-4A-1, §33-4A-2, §33-4A-3, §33-4A-
4, §33-4A-5, §33-4A-6, §33-4A-7 and §33-4A-8, all relating to
the Insurance Commissioner generally;
providing that certain
information provided by insurance companies to the Insurance
Commissioner is confidential; exempting such confidential
information from the freedom of information disclosure
requirements; providing that such confidential information is
not subject to subpoena or discoverable in a private civil
action; commissioner's authority to release, share and receive
documents otherwise treated as confidential in furtherance of
the commissioner's official duties; stating conditions
attached thereto;
authorizing legislative rules; creating an
all-payer claims database; defining terms; developing the
database by the Insurance Commissioner, Secretary of Health
and Human Resources and Chairperson of the Health Care
Authority and providing powers in regard thereto; exempting
from purchasing rules; providing data subject to the database; providing for the protection of personal identifiers and the
confidentiality of information; permitting fees and
assessments to be assessed; authorizing penalties to be set
by rule; authorizing injunctive relief; establishing special
revenue account; and allowing other sanctions
.
Be it enacted by the Legislature of West Virginia:
That §33-4-14 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto a new article, designated §33-4A-1, §33-4A-2, §33-4A-3,
§33-4A-4, §33-4A-5, §33-4A-6, §33-4A-7 and §33-4A-8, all to read
as follows:
ARTICLE 4. GENERAL PROVISIONS.
§33-4-14. Financial statement filings; annual and quarterly
statements; required format; foreign insurers; agents
of the commissioner.
(a) Each licensed insurer shall annually on or before March
1, unless the time is extended by the commissioner for good cause
shown, file with the commissioner a true statement of its financial
condition, transactions and affairs as of the preceding December
31. Such statement shall be on the appropriate National
Association of Insurance Commissioners annual statement blank;
shall be prepared in accordance with the National Association of
Insurance Commissioners annual statement instructions handbook; and
shall follow the accounting practices and procedures prescribed by
the National Association of Insurance Commissioners accounting
practices and procedures manual as amended: Provided, That each
licensed insurer shall also file true statements of financial
condition on a more frequent basis if the commissioner so orders. The commissioner shall establish the frequency, due date and form
acceptable to him or her for such filings: Provided, however, That
the statement of an alien insurer shall relate only to its
transactions and affairs in the United States unless the
commissioner requires otherwise.
(b) Each domestic insurer shall also file with the
commissioner a true quarterly statement of its financial condition,
transactions and affairs as of March 31, June 30, and September 30,
of each year. Quarterly statements shall be due forty-five days
after the end of each quarter. All quarterly statements shall be
submitted on the appropriate National Association of Insurance
Commissioners quarterly statement blank; shall be prepared in
accordance with the National Association of Insurance Commissioners
quarterly statement instructions; and shall follow the accounting
practices and procedures prescribed by the National Association of
Insurance Commissioners accounting practices and procedures manual,
as amended. The commissioner may subject any licensed insurer to
the requirements of this section whenever the commissioner deems
it necessary.
(c) The commissioner may require that all or part of the
information contained in the annual statement blank and the
quarterly statement blanks be submitted in a computer-readable form
compatible with the electronic data processing system of the
department.
(d) Each domestic, foreign and alien insurer, organization or
corporation that is subject to the requirements of this section
shall annually, on or before March 1 each year, and forty-five days
after the end of the first, second and third calendar quarters, file with the National Association of Insurance Commissioners a
copy of its annual statement convention blank and the quarterly
statement blanks, along with such additional filings as prescribed
by the commissioner and shall pay the fee established by the
National Association of Insurance Commissioners for filing, review
or processing of the information. The information filed with the
National Association of Insurance Commissioners shall be in the
same format and scope as that required by the commissioner and
shall include the signed jurat page and any other required
information. Any amendments and addenda to the annual statement
filing and quarterly statement filings subsequently filed with the
commissioner shall also be filed with the National Association of
Insurance Commissioners.
(e) Foreign insurers that are domiciled in a state which has
a law substantially similar to subsection (a) of this section shall
be deemed in compliance with this section.
(f) In the absence of actual malice, members of the National
Association of Insurance Commissioners, their duly authorized
committees, subcommittees and task forces, their delegates,
National Association of Insurance Commissioners employees and all
others charged with the responsibility of collecting, reviewing,
analyzing and disseminating the information developed from the
filing of the annual statement convention blanks and the quarterly
statement blanks shall be acting as agents of the commissioner
under the authority of this article and shall not be subject to
civil liability for libel, slander or any other cause of action by
virtue of their collection, review, and analysis or dissemination
of the data and information collected from the filings required hereunder.
(g)(1) All financial analysis ratios and examination synopses
concerning insurance companies that are submitted to the
commissioner by the National Association of Insurance Commissioners
insurance regulatory information system, and all actuarial
reports, work papers and actuarial summaries submitted by insurers
in conjunction with their annual financial statements is
confidential by law and privileged. These documents are not
subject to disclosure pursuant to chapter twenty-nine-b of this
code, are not subject to subpoena and are not subject to discovery
or admissible as evidence in any private civil action: Provided,
That nothing in this section may be construed to limit the ability
of parties in a civil action to discover such information from
insurers under the Rules of Civil Procedure.
(2) This subsection shall not be construed to limit the
commissioner's authority to release the documents to the Actuarial
Board for Counseling and Discipline (ABCD), so long as the material
is required for the purpose of professional disciplinary
proceedings and the ABCD establishes procedures satisfactory to the
commissioner for preserving the confidentiality of the documents;
nor shall this section be construed to limit the commissioner's
authority to use the documents, materials or other information in
furtherance of any regulatory or legal action brought as part of
the commissioner's official duties.
(3) Neither the commissioner nor any person who received
documents, materials or other information while acting under the
authority of the commissioner shall be permitted or required to
testify in any private civil action concerning any confidential documents, materials or information subject to subdivision (1) of
this subsection.
(4) In order to assist in the performance of the
commissioner's duties, the commissioner:
(A) May share documents, materials or other information,
including the confidential and privileged documents, materials or
information subject to subparagraph (1) of this subsection with
other state, federal and international regulatory agencies, and
with state, federal and international law enforcement authorities,
provided that the recipient agrees to maintain the confidentiality
and privileged status of the document, material or other
information and has the legal authority to maintain
confidentiality; and
(B) May receive documents, materials or information, including
otherwise confidential and privileged documents, materials or
information, from the National Association of Insurance
Commissioners and its affiliates and subsidiaries, and from
regulatory and law enforcement officials of other foreign or
domestic jurisdictions, and shall maintain as confidential or
privileged any document, material or information received with
notice or the understanding that it is confidential or privileged
under the laws of the jurisdiction that is the source of the
document, material or information.
(h) The commissioner may suspend, revoke or refuse to renew
the certificate of authority of any insurer failing to file its
annual statement or the quarterly statement blanks, or any other
statement of financial condition required by this section, when due
or within any extension of time which the commissioner, for good cause, may have granted.
(i) Any variance to the requirements of this section shall
require the express authorization of the commissioner.
(j) The commissioner shall propose rules for legislative
approval in accordance with article three, chapter twenty-nine-a
of this code to effectuate the requirements of this article.
ARTICLE 4A. ALL-PAYER CLAIMS DATABASE.
§33-4A-1. Definitions.
(a) "All-payer claims database" or "APCD" means the program
authorized by this article that collects, retains, uses and
discloses information concerning the claims and administrative
expenses of health care payers.
(b) "Chair" means the chairperson of the West Virginia Health
Care Authority.
(c) "Commissioner" means the West Virginia Insurance
Commissioner.
(d) "Data" means the data elements from enrollment and
eligibility files, specified types of claims, and reference files
for data elements not maintained in formats consistent with
national coding standards.
(e) "Health care payer" means any entity that pays or
administers the payment of health insurance claims or medical
claims under workers' compensation insurance to providers in this
state, including workers' compensation insurers; accident and
sickness insurers; nonprofit hospital service corporations, medical
service corporations and dental service organizations; nonprofit
health service corporations; prepaid limited health service organizations; health maintenance organizations; and government
payers, including but not limited to Medicaid, Medicare and the
public employees insurance agency; the term also includes any
third-party administrator including any pharmacy benefit manager,
that administers a fully-funded or self-funded plan:
A "health insurance claim" does not include:
(1) Any claim paid under an individual or group policy
providing coverage only for accident, or disability income
insurance or any combination thereof; coverage issued as a
supplement to liability insurance; liability insurance, including
general liability insurance and automobile liability; credit-only
insurance; coverage for on-site medical clinics; other similar
insurance coverage, which may be specified by rule, under which
benefits for medical care are secondary or incidental to other
insurance benefits; or
(2) Any of the following if provided under a separate policy,
certificate, or contract of insurance: Limited scope dental or
vision benefits: benefits for long-term care, nursing home care,
home health care, community-based care, or any combination
thereof; coverage for only a specified disease or illness; or
hospital indemnity or other fixed indemnity insurance.
"Health insurance claims" shall only include information from
Medicare supplemental policies if the same information is obtained
with respect to Medicare.
(f) "Personal identifiers" means information relating to an
individual member or insured that identifies, or can be used to
identify, locate or contact a particular individual member or
insured, including but not limited to the individual's name, street address, social security number, e-mail address and telephone
number.
(g) "Secretary" means the Secretary of the West Virginia
Department of Health and Human Services.
(h) "Third-party administrator" has the same meaning ascribed
to it in section two, article forty-six of this chapter.
§33-4A-2. Establishment and development of an all-payer claims
database.
(a) The secretary, commissioner and chair, collectively
referred to herein as the "MOU parties", shall enter into a
memorandum of understanding to develop an all-payer claims database
program.
(b) The memorandum of understanding shall, at a minimum:
(1) Provide that the commissioner will have primary
responsibility for the collection of the data in order to
facilitate the efficient administration of state oversight, the
secretary will have primary responsibility for the retention of
data supplied to the state under its health care oversight
function, and the chair will have primary responsibility for the
dissemination of the data;
(2) Delineate the MOU parties' roles, describe the process to
develop legislative rules required by this article, establish
communication processes and a coordination plan, and address vendor
relationship management;
(3) Provide for the development of a plan for the financial
stability of the APCD, including provision for funding by the MOU
parties' agencies; and
(4) Provide for the use of the hospital discharge data collected by the West Virginia Health Care Authority as a tool in
the validation of APCD reports.
§33-4A-3. Powers of the commissioner, secretary and chair;
exemption from purchasing rules.
(a) The MOU parties may:
(1) Accept gifts, bequests, grants or other funds dedicated
to the furtherance of the goals of the APCD;
(2) Select a vendor to handle data collection and processing
and such other tasks as deemed appropriate;
(3) Enter into agreements with other states to perform joint
administrative operations, share information and assist in the
development of multistate efforts to further the goals of this
article: Provided, That any such agreements must include adequate
protections with respect to the confidentiality of the information
to be shared and comply with all state and federal laws and
regulations;
(4) Enter into memoranda of understanding with other
governmental agencies to carry out any of its functions, including
contracts with other states to perform joint administrative
functions;
(5) Attempt to ensure that the requirements with respect to
the reporting of data be standardized so as to minimize the expense
to parties subject to similar requirements in other jurisdictions;
(6) Enter into voluntary agreements to obtain data from payers
not subject to mandatory reporting under this article; and
(7) Exempt a payer for class of payers from the requirements
of this article for cause.
(b) Contracts for professional services for the development and operation of the APCD are not subject to the provisions of
article three, chapter five-a of this code relating to the
Purchasing Division of the Department of Administration. The award
of such contracts shall be subject to a competitive process
established by the MOU parties.
(c) The MOU parties shall make an annual report to the
Governor, which shall also be filed with the Joint Committee on
Government and Finance, summarizing the activities of the APCD in
the preceding calendar year.
§33-4A-4. Data subject to this article.
(a) All health care payers shall submit data to the
commissioner or an entity designated by the commissioner at such
times and in a form specified in rule. Any health care payer that
the commissioner determines paid or administered the payment of
health insurance claims in this state for policies on fewer than
500 covered lives in the previous calendar year is exempt from the
requirements of this article.
(b) Data submitted in accordance with this article shall be
considered confidential by law and privileged, are exempt from
disclosure pursuant to chapter twenty-nine-b of this code, are not
open to public inspection, are not subject to subpoena, are not
subject to discovery or admissible in evidence in any criminal,
private civil or administrative action, are not subject to
production pursuant to court order, and shall only be used and
disclosed pursuant to law and legislative rules promulgated
pursuant to this article.
(c)(1) Data submitted to and retained by the APCD shall be
available as a resource for the MOU parties to continuously review health care utilization, expenditures and performance in West
Virginia and to enhance the ability of consumers to make informed
and cost-effective health care decisions.
(2) Data submitted to and retained by the APCD may, in
accordance with this article and the legislative rules promulgated
pursuant to this article, also be available as a resource for
insurers, researchers, employers, providers, purchasers of health
care, consumers, and state agencies.
(d) Notwithstanding any other provision of law to the
contrary, the APCD shall not disclose any data that contain
personal identifiers. The MOU parties, in accordance with
procedures and standards set forth in legislative rule, may approve
access to other data elements not prohibited from disclosure by the
APCD, as well as synthetic or created unique identifiers, for use
by researchers, including government agencies, with
established protocols for safeguarding confidential or privileged
information. The MOU parties' use of the data shall not constitute
a disclosure.
§33-4A-5. User fees; waiver.
Reasonable user fees may be set in the manner established in
legislative rule, for the right to access and use the data
available from the APCD. The chair may reduce or waive the fee if
he or she determines that the user is unable to pay the scheduled
fees and that the user has a viable plan to use the data or
information in research of general value to the public health.
§33-4A-6. Enforcement; injunctive relief.
In the event of any violation of this article or any rule
adopted thereunder, the commissioner, secretary or chair may seek to enjoin a further violation in the circuit court of Kanawha
County. Injunctive relief ordered pursuant to this section may be
in addition to any other remedies and enforcement actions available
to the commissioner under this chapter.
§33-4A-7. Special revenue account created.
(a) There is hereby created a special revenue account in the
State Treasury, designated the West Virginia All-Payer Claims
Database Fund, which shall be an interest-bearing account and may
be invested in the manner permitted by article six, chapter twelve
of this code, with the interest income a proper credit to the fund
and which shall not revert to the general revenue, unless otherwise
designated in law. The fund shall be overseen by the commissioner,
secretary and chair, shall be administered by the commissioner, and
shall be used to pay all proper costs incurred in implementing the
provisions of this article.
(b) The following funds shall be paid into this account:
(1) Penalties imposed on health care payers pursuant to this
article and rules promulgated hereunder;
(2) Funds received from the federal government;
(3) Appropriations from the Legislature; and
(4) All other payments, gifts, grants, bequests or income from
any source.
§33-4A-8. Rule-making authority.
To effectuate the provisions of this article, the MOU parties
may propose joint rules for legislative approval in accordance with
the provisions of article three, chapter twenty-nine-a of this code
as necessary to implement this article. No actions to collect data
or assess fees pursuant to this article may be undertaken until rules promulgated hereunder are made effective. Such rules may
include, but are not limited to, the following:
(a) Procedures for the collection, retention, use and
disclosure of data from the APCD, including procedures and
safeguards to protect the privacy, integrity, confidentiality and
availability of any data;
(b) Penalties against health care payers for violation of
rules governing the submission of data, including a schedule of
fines for failure to file data or to pay assessments;
(c) Fees payable by users of the data and the process for a
waiver or reduction of user fees. Any such fees shall be
established at a level that, when considered together with other
available funding sources, is deemed necessary to sustain the
operation of the APCD;
(d) A proposed time frame for the creation of the database;
(e) Criteria for determining whether data collected, beyond
the listed personal identifiers, is confidential clinical data,
confidential financial data or privileged medical information, and
procedures to give affected providers and health care payers notice
and opportunity to comment in response to requests for information
that may be considered confidential or privileged;
(f) Penalties, including fines and other administrative
sanctions, that may be imposed by the commissioner for a health
care payer's failure to comply with requirements of this article
and rules adopted hereunder; and
(g) Establishment of advisory boards to provide advice to the
MOU parties with respect to the various functions of the APCD.