COMMITTEE SUBSTITUTE
FOR
H. B. 3288
(By Delegates Perry, Shaver, Ashley and Moore)
(Originating in the House Committee on Banking and Insurance)
[March 25, 2009]
A BILL to
amend and reenact §33-16-3a of the Code of West Virginia,
1931, as amended, relating to group accident and sickness
insurance requirements to cover treatment of mental illness;
providing that actual increases in costs for certain coverage
determine whether cost containment measures may be applied by
the insurer of certain groups; and removing certain provisions
regarding small groups.
Be it enacted by the Legislature of West Virginia:
That §33-16-3a of the Code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted to read as
follows:
ARTICLE 16. GROUP ACCIDENT AND SICKNESS INSURANCE.
§33-16-3a. Same -- Mental health.
(a) (1) Notwithstanding the requirements of subsection (b) of
this section, any health benefits plan described in this article that is delivered, issued or renewed in this state shall provide
benefits to all individual subscribers and members and to all group
members for expenses arising from treatment of serious mental
illness. The expenses do not include custodial care, residential
care or schooling. For purposes of this section, "serious mental
illness" means an illness included in the American Psychiatric
Association's Diagnostic and Statistical Manual of Mental
Disorders, as periodically revised, under the diagnostic categories
or subclassifications of: (i) (A) Schizophrenia and other
psychotic disorders; (ii) (B) bipolar disorders; (iii) (C)
depressive disorders; (iv) (D) substance-related disorders with the
exception of caffeine-related disorders and nicotine-related
disorders; (v) (E) anxiety disorders; and (vi) (F) anorexia and
bulimia.
(2) Notwithstanding any other provision in this section to the
contrary, in the event that an insurer can demonstrate actuarially
to the Insurance Commissioner that its total anticipated costs for
treatment for mental illness, for any plan will exceed or have
exceeded two percent of the total costs for such plan in any
experience period, then the insurer may apply whatever cost
containment measurers measures may be necessary, including, but not
limited to, limitations on inpatient and outpatient benefits, to
maintain costs below two percent of the total costs for the plan:
Provided, That for any group with twenty-five members or less, the insurer may apply such additional cost containment measures as may
be necessary if the total anticipated actual costs for the
treatment of mental illness will exceed one percent of the total
costs for the group plan year beginning after October 3, 2009, an
insurer providing a "group health plan," as defined in section
one-a of this article, with an average of more than fifty employees
on business days during the preceding calendar year, may not apply
cost containment measures as provided in this subdivision unless
the insurer can demonstrate that the application of this section
results in an increase of two percent of the actual total costs of
coverage for the plan year involved with respect to
medical-surgical benefits and mental health benefits under the
plan: Provided, however, That such cost containment measures
implemented are applicable only for the plan year following
approval of the request to implement cost containment measures.
(3) The insurer shall not discriminate between
medical-surgical benefits and mental health benefits in the
administration of its plan. With regard to both medical-surgical
and mental health benefits, it may make determinations of medical
necessity and appropriateness, and it may use recognized health
care quality and cost management tools, including, but not limited
to, utilization review, use of provider networks, implementation of
cost containment measures, preauthorization for certain treatments,
setting coverage levels including the number of visits in a given time period, using capitated benefit arrangements, using
fee-for-service arrangements, using third-party administrators, and
using patient cost sharing in the form of copayments, deductibles
and coinsurance.
(4) The provisions of amendments to this subsection shall
apply with respect to group health plans for plan years beginning
on or after January 1, two thousand three October 3, 2009.
(b) With respect to mental health benefits furnished to an
enrollee of a health benefit plan offered in connection with a
group health plan, for a plan year beginning on or after January 1,
1998, the following requirements shall apply to aggregate lifetime
limits and annual limits.
(1) Aggregate lifetime limits:
(A) If the health benefit plan does not include an aggregate
lifetime limit on substantially all medical and surgical benefits,
as defined under the terms of the plan but not including mental
health benefits, the plan may not impose any aggregate lifetime
limit on mental health benefits;
(B) If the health benefit plan limits the total amount that
may be paid with respect to an individual or other coverage unit
for substantially all medical and surgical benefits (in this
paragraph, "applicable lifetime limit"), the plan shall either
apply the applicable lifetime limit to medical and surgical
benefits to which it would otherwise apply and to mental health benefits, as defined under the terms of the plan, and not
distinguish in the application of the limit between medical and
surgical benefits and mental health benefits, or not include any
aggregate lifetime limit on mental health benefits that is less
than the applicable lifetime limit;
(C) If a health benefit plan not previously described in this
subdivision includes no or different aggregate lifetime limits on
different categories of medical and surgical benefits, the
commissioner shall propose rules for legislative approval in
accordance with the provisions of article three, chapter
twenty-nine-a of this code under which paragraph (B) of this
subdivision shall apply, substituting an average aggregate lifetime
limit for the applicable lifetime limit.
(2) Annual limits:
(A) If a health benefit plan does not include an annual limit
on substantially all medical and surgical benefits, as defined
under the terms of the plan but not including mental health
benefits, the plan may not impose any annual limit on mental health
benefits, as defined under the terms of the plan;
(B) If the health benefit plan limits the total amount that
may be paid in a twelve-month period with respect to an individual
or other coverage unit for substantially all medical and surgical
benefits (in this paragraph, "applicable annual limit"), the plan
shall either apply the applicable annual limit to medical and surgical benefits to which it would otherwise apply and to mental
health benefits, as defined under the terms of the plan, and not
distinguish in the application of the limit between medical and
surgical benefits and mental health benefits, or not include any
annual limit on mental health benefits that is less than the
applicable annual limit;
(C) If a health benefit plan not previously described in this
subdivision includes no or different annual limits on different
categories of medical and surgical benefits, the commissioner shall
propose rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code
under which paragraph (B) of this subdivision shall apply,
substituting an average annual limit for the applicable annual
limit.
(3) If a group health plan or a health insurer offers a
participant or beneficiary two or more benefit package options,
this subsection shall apply separately with respect to coverage
under each option.
NOTE: The purpose of this bill is to comply with recent
federal law changes with respect to mental health parity. The bill
provides that actual increases in costs determine whether cost
containment measures may be applied. The bill also removes certain
provisions regarding small groups.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.