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Engrossed Version Senate Bill 522 History

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Key: Green = existing Code. Red = new code to be enacted
ENGROSSED

Senate Bill No. 522

(By Senators Wooton, Humphreys, Holliday, Dittmar,

Macnaughtan, Miller, Minard, Dalton, Ross,

Anderson and Claypole)

__________

[Originating in the Committee on the Judiciary;

reported March 1, 1994.]

__________




A BILL to amend and reenact section sixteen, article fifteen, chapter thirty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to further amend said article by adding thereto two new sections designated sections seventeen and eighteen; to amend and reenact section eleven, article sixteen of said chapter; to further amend said article by adding two new sections, designated sections twelve and thirteen; to amend and reenact section two, article sixteen-c of said chapter; to amend and reenact section four, article twenty-four of said chapter; to amend and reenact section six, article twenty-five of said chapter; to amend and reenact section twenty-four, article twenty-five-a of said chapter; and to amend and reenact section fifteen-a, article two, chapter forty-eight of said code, all relating to health coverage; coverage of children; employer's obligations; equal
treatment of state agency; coordination of benefits with medicaid; and medical support enforcement.
Be it enacted by the Legislature of West Virginia:
That section sixteen, article fifteen, chapter thirty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that said article be further amended by adding thereto two new sections, designated sections seventeen and eighteen; that section eleven, article sixteen of said chapter be amended and reenacted; that said article be further amended by adding thereto two new sections, designated sections twelve and thirteen; that section two, article sixteen-c of said chapter be amended and reenacted; that section four, article twenty-four of said chapter be amended and reenacted; that section six, article twenty-five of said chapter be amended and reenacted; that section twenty-four, article twenty-five-a of said chapter be amended and reenacted; and that section fifteen-a, article two, chapter forty-eight of said code be amended and reenacted, all to read as follows:
CHAPTER 33. INSURANCE.

ARTICLE 15. ACCIDENT AND SICKNESS INSURANCE.

§33-15-16. Policies not to exclude insured's children from coverage.

(a) An insurer issuing accident and sickness policies in this state shall provide coverage for the child or children of the insured without regard to the amount of child support ordered to be paid or actually paid by the insured, if any, and without regard to the fact that the insured may not have legal custody of the child or children or that the child or children may not beresiding in the home of the insured.
(b) An insurer shall not deny enrollment of a child under the health plan of the child's parent on the grounds that:
(1) The child was born out of wedlock;
(2) The child is not claimed as a dependent on the parent's federal tax return; or
(3) The child does not reside with the parent or in the insurer's service area.
(c) Where a child has health coverage through an insurer of a noncustodial parent the insurer shall:
(1) Provide such information to the custodial parent as may be necessary for the child to obtain benefits through that coverage;
(2) Permit the custodial parent (or the provider, with the custodial parent's approval) to submit claims for covered services without the approval of the noncustodial parent; and
(3) Make payments on claims submitted in accordance with subdivision (2) of this subsection directly to the custodial parent, the provider or the state medicaid agency.
(d) Where a parent is required by a court or administrative order to provide health coverage for a child, and the parent is eligible for family health coverage, the insurer shall:
(1) Permit the parent to enroll, under the family coverage, a child who is otherwise eligible for the coverage without regard to any enrollment season restrictions;
(2) If the parent is enrolled but fails to make application to obtain coverage for the child, enroll the child under family coverage upon application of the child's other parent, the stateagency administering the medicaid program or the state agency administering 42 U.S.C. §651 through §669, the child support enforcement program; and
(3) Not disenroll (or eliminate coverage of) the child unless the insurer is provided satisfactory written evidence that:
(A) The court or administrative order is no longer in effect; or
(B) The child is or will be enrolled in comparable health coverage through another insurer which will take effect not later than the effective date of disenrollment.
§33-15-17. Equal treatment of state agency.

An insurer may not impose requirements on a state agency, which has been assigned the rights of an individual eligible for medical assistance under medicaid and covered for health benefits from the insurer, that are different from requirements applicable to an agent or assignee of any other individual so covered.
§33-15-18. Coordination of benefits with medicaid.

Any health insurer, health maintenance organization as defined in article twenty-five-a of this chapter or hospital and medical service corporations as defined in article twenty-four of this chapter is prohibited from considering the availability or eligibility for medical assistance in this or any other state under 42 U.S.C. §1396a, (Section 1902 of the Social Security Act) herein referred to as medicaid, when considering eligibility for coverage or making payments under its plan for eligible enrollees, subscribers, policyholders or certificateholders.
ARTICLE 16. GROUP ACCIDENT AND SICKNESS INSURANCE.

§33-16-11. Group policies not to exclude insured's children from coverage.

(a) An insurer issuing group accident and sickness policies in this state shall provide coverage for the child or children of each employee or member of the insured group without regard to the amount of child support ordered to be paid or actually paid by such employee or member, if any, and without regard to the fact that the employee or member may not have legal custody of the child or children or that the child or children may not be residing in the home of the employee or member.
(b) An insurer shall not deny enrollment of a child under the health plan of the child's parent on the grounds that:
(1) The child was born out of wedlock;
(2) The child is not claimed as a dependent on the parent's federal tax return; or
(3) The child does not reside with the parent or in the insurer's service area.
(c) Where a child has health coverage through an insurer of a noncustodial parent the insurer shall:
(1) Provide such information to the custodial parent as may be necessary for the child to obtain benefits through that coverage;
(2) Permit the custodial parent (or the provider, with the custodial parent's approval) to submit claims for covered services without the approval of the noncustodial parent; and
(3) Make payments on claims submitted in accordance with subdivision (2) of this subsection directly to the custodial parent, the provider or the state medicaid agency.
(d) Where a parent is required by court or administrative order to provide health coverage for a child, and the parent is eligible for family health coverage, the insurer shall:
(1) Permit the parent to enroll, under the family coverage, a child who is otherwise eligible for the coverage without regard to any enrollment season restrictions;
(2) If the parent is enrolled but fails to make application to obtain coverage for the child, enroll the child under family coverage upon application of the child's other parent, the state agency administering the medicaid program or the state agency administering 42 U.S.C §651 through §669, the child support enforcement program; and
(3) Not disenroll (or eliminate coverage of) the child unless the insurer is provided satisfactory written evidence that:
(A) The court or administrative order is no longer in effect; or
(B) The child is or will be enrolled in comparable health coverage through another insurer which will take effect not later than the effective date of disenrollment.
§33-16-12. Equal treatment of state agency.

An insurer may not impose requirements on a state agency, which has been assigned the rights of an individual eligible for medical assistance under medicaid and covered for health benefits from the insurer, that are different from requirements applicable to an agent or assignee of any other individual so covered.
§33-16-13. Coordination of benefits with medicaid.

Any health insurer including a group health plan, as definedin Section 607(1) of the Employee Retirement Income Security Act of 1974, health maintenance organization as defined in article twenty-five-a of this chapter or hospital and medical service corporations as defined in article twenty-four of this chapter is prohibited from considering the availability or eligibility for medical assistance in this or any other state under 42 U.S.C. §1396a, (Section 1902 of the Social Security Act) herein referred to as medicaid, when considering eligibility for coverage or making payments under its plan for eligible enrollees, subscribers policyholders or certificateholders.
ARTICLE 16C. EMPLOYER GROUP ACCIDENT AND SICKNESS INSURANCE POLICIES.

§33-16C-2. Definitions.

As used in this article:
(a) "Basic policy" means a group accident and sickness insurance contract for medical, surgical or hospital care that is required to contain only those minimum benefits and coverages mandated by this article, but which may contain other benefits and coverages which have been approved by the insurance commissioner.
(b) "Commissioner" means the insurance commissioner of West Virginia.
(c) "Department" means the department of insurance.
(d) "Eligible employee" means an employee who is employed by the employer for an average of at least twenty hours per week; includes individuals who are sole proprietors, general partners and limited partners; and includes individuals who either work or reside in this state.
(e) "Eligible employer" means a corporation, partnership or proprietorship which has done business in this state for at least one year and has not offered health insurance to all of its employees within the twelve months preceding its application for a basic policy as defined by this section.
(f) "Family member" means an eligible employee's spouse and any dependent child or stepchild under the age of eighteen or under age twenty-three if a full-time student at an accredited school: Provided, That the spouse, child or stepchild is not eligible for medicare.
(g) "Insurer" means any of the following entities that holds a valid certificate of authority from the commissioner: An insurance company authorized to transact accident and sickness insurance; a hospital service corporation, medical service corporation or health service corporation organized pursuant to article twenty-four of this chapter; a health care corporation organized pursuant to article twenty-five of this chapter; or a health maintenance organization organized pursuant to article twenty-five-a of this chapter.
(h) "Premium" means the consideration for insurance, by whatever name called.
ARTICLE 24. HOSPITAL SERVICE CORPORATIONS, MEDICAL SERVICE CORPORATIONS, DENTAL SERVICE CORPORATIONS AND HEALTH SERVICE CORPORATIONS.

§33-24-4. Exemptions; applicability of insurance laws.

Every corporation defined in section two of this article is hereby declared to be a scientific, nonprofit institution and exempt from the payment of all property and other taxes. Everycorporation, to the same extent the provisions are applicable to insurers transacting similar kinds of insurance and not inconsistent with the provisions of this article, shall be governed by and be subject to the provisions as hereinbelow indicated, of the following articles of this chapter: Article two (insurance commissioner), except that, under section nine of said article, examinations shall be conducted at least once every four years; article four (general provisions), except that section sixteen of said article shall not be applicable thereto; section thirty-four, article six (fee for form and rate filing); article six-c (guaranteed loss ratio); article seven (assets and liabilities); article eleven (unfair trade practices); article twelve (agents, brokers and solicitors), except that the agent's license fee shall be five dollars; section fourteen, article fifteen (individual accident and sickness insurance); section sixteen, article fifteen (coverage of children); section seventeen, article fifteen (equal treatment of state agency); section eighteen, article fifteen (coordination of benefits with medicaid); article fifteen-a (long-term care insurance); section three, article sixteen (required policy provisions); section three-a, article sixteen (mental illness); section three-c, article sixteen (group accident and sickness insurance); section three-d, article sixteen (medicare supplement insurance); section three-f, article sixteen (treatment of temporomandibular joint disorder and craniomandibular disorder); section eleven, article sixteen (coverage of children); section twelve, article sixteen (equal treatment of state agency); section thirteen, article sixteen (coordination of benefits with medicaid); articlesixteen-a (group health insurance conversion); article sixteen-c (small employer group policies); article sixteen-d (marketing and rate practices for small employers); article twenty-six-a (West Virginia life and health insurance guaranty association act), after the first day of October, one thousand nine hundred ninety- one; article twenty-seven (insurance holding company systems); article twenty-eight (individual accident and sickness insurance minimum standards); article thirty-three (annual audited financial report); article thirty-four (administrative supervision); 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); and article thirty-seven (managing general agents); and no other provision of this chapter may apply to these corporations unless specifically made applicable by the provisions of this article. If, however, the corporation is converted into a corporation organized for a pecuniary profit or if it transacts business without having obtained a license as required by section five of this article, it shall thereupon forfeit its right to these exemptions.
ARTICLE 25. HEALTH CARE CORPORATIONS.

§33-25-6. Supervision and regulation by insurance commissioner; exemption from insurance laws.

Corporations organized under this article are subject to supervision and regulation of the insurance commissioner. The corporations organized under this article, to the same extent these provisions are applicable to insurers transacting similar kinds of insurance and not inconsistent with the provisions ofthis article, shall be governed by and be subject to the provisions as hereinbelow indicated of the following articles of this chapter: Article four (general provisions), except that section sixteen of said article shall not be applicable thereto; article six-c (guaranteed loss ratio); article seven (assets and liabilities); article eight (investments); article ten (rehabilitation and liquidation); section fourteen, article fifteen (individual accident and sickness insurance); section sixteen, article fifteen (coverage of children); section seventeen, article fifteen (equal treatment of state agency); section eighteen, article fifteen (coordination of benefits with medicaid); section three, article sixteen (required policy provisions); section eleven, article sixteen (coverage of children); section twelve, article sixteen (equal treatment of state agency); section thirteen, 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-six-a (West Virginia life and health insurance guaranty association act); article twenty-seven (insurance holding company systems); article thirty-three (annual audited financial report); 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); and article thirty-seven (managing general agents); and no other provision of this chapter may apply to these corporations unless specifically made applicable by the provisions of this article.
ARTICLE 25A. HEALTH MAINTENANCE ORGANIZATION ACT.

§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 shall not be applicable to any health maintenance organization granted a certificate of authority under this article. This provision 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.
(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 herein 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 deemed to be practicing medicine and shall be exempt from the provision of chapter thirty of thiscode, relating to the practice of medicine.
(d) The provisions of section fifteen, article four (general provisions); article six-c (guaranteed loss ratio); article seven (assets and liabilities); article eight (investments); section fourteen, article fifteen (individual accident and sickness insurance); section sixteen, article fifteen (coverage of children); section seventeen, article fifteen (equal treatment of state agency); section eighteen, article fifteen (coordination of benefits with medicaid); article fifteen-b (uniform health care administration act); section three-f, article sixteen (treatment of temporomandibular disorder and craniomandibular disorder); section eleven, article sixteen (coverage of children); section twelve, article sixteen (equal treatment of state agency); section thirteen, 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); and article thirty-seven (managing general agents) shall be applicable to any health maintenance organization granted a certificate of authority under this article.
(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.
CHAPTER 48. DOMESTIC RELATIONS.

ARTICLE 2. DIVORCE, ANNULMENT AND SEPARATE MAINTENANCE.

§48-2-15a. Medical support enforcement.

(a) For the purposes of this section:
(1) "Custodian for the children" means a parent, legal guardian, committee or other third party appointed by court order as custodian of child or children for whom child support is ordered.
(2) "Obligated parent" means a natural or adoptive parent who is required by agreement or order to pay for insurance coverage and medical care, or some portion thereof, for his or her child.
(3) "Insurance coverage" means coverage for medical, dental, including orthodontic, optical, psychological, psychiatric or other health care service.
(4) "Child" means a child to whom a duty of child support is owed.
(5) "Medical care" means medical, dental, optical, psychological, psychiatric or other health care service for children in need of child support.
(6) "Insurer" means any company, health maintenance organization, self-funded group, multiple employer welfare arrangement, hospital or medical services corporation, trust, group health plan, as defined in Section 607(1) of the Employee Retirement Income Security Act of 1974 or other entity which provides insurance coverage or offers a service benefit plan.
(b) In every action to establish or modify an order which requires the payment of child support, the court shall ascertainthe ability of each parent to provide medical care for the children of the parties. In any temporary or final order establishing an award of child support or any temporary or final order modifying a prior order establishing an award of child support, the court shall order one or more of the following:
(1) The court shall order either parent or both parents to provide insurance coverage for a child, if such insurance coverage is available to that parent on a group basis through an employer or through an employee's union. If similar insurance coverage is available to both parents, the court shall order the child to be insured under the insurance coverage which provides more comprehensive benefits. If such insurance coverage is not available at the time of the entry of the order, the order shall require that if such coverage thereafter becomes available to either party, that party shall promptly notify the other party of the availability of insurance coverage for the child.
(2) If the court finds that insurance coverage is not available to either parent on a group basis through an employer, multi-employer trust or employees' union, or that the group insurer is not accessible to the parties, the court may order either parent or both parents to obtain insurance coverage which is otherwise available at a reasonable cost.
(3) Based upon the respective ability of the parents to pay, the court may order either parent or both parents to be liable for reasonable and necessary medical care for a child. The court shall specify the proportion of the medical care for which each party shall be responsible.
(4) If insurance coverage is available, the court shall alsodetermine the amount of the annual deductible on insurance coverage which is attributable to the children and designate the proportion of the deductible which each party shall pay.
(5) The order shall require the obligor to continue to provide the child advocate office with information as to his or her employer's name and address and information as to the availability of employer-related insurance programs providing medical care coverage so long as the child continues to be eligible to receive support.
(c) The cost of insurance coverage shall be considered by the court in applying the child support guidelines provided for in section eight, article two, chapter forty-eight-a of this code.
(d) Within thirty days after the entry of an order requiring the obligated parent to provide insurance coverage for the children, that parent shall submit to the custodian for the child written proof that the insurance has been obtained or that an application for insurance has been made. Such proof of insurance coverage shall consist of, at a minimum:
(1) The name of the insurer;
(2) The policy number;
(3) An insurance card;
(4) The address to which all claims should be mailed;
(5) A description of any restrictions on usage, such as prior approval for hospital admission, and the manner in which to obtain such approval;
(6) A description of all deductibles; and
(7) Five copies of claim forms.
(e) The custodian for the child shall send the insurer or the obligated parent's employer the children's address and notice that the custodian will be submitting claims on behalf of the children. Upon receipt of such notice, or an order for insurance coverage under this section, the obligated parent's employer, multi-employer trust or union shall, upon the request of the custodian for the child, release information on the coverage for the children, including the name of the insurer.
(f) A copy of the court order for insurance coverage shall not be provided to the obligated parent's employer or union or the insurer unless ordered by the court, or unless:
(1) The obligated parent, within thirty days of receiving effective notice of the court order, fails to provide to the custodian for the child written proof that the insurance has been obtained or that an application for insurance has been made;
(2) The custodian for the child serves written notice by mail at the obligated parent's last known address of intention to enforce the order requiring insurance coverage for the child; and
(3) The obligated parent fails within fifteen days after the mailing of the notice to provide written proof to the custodian for the child that the child has insurance coverage.
(g) (1) Upon service of the order requiring insurance coverage for the children, the employer, multi-employer trust or union shall enroll the child as a beneficiary in the group insurance plan and withhold any required premium from the obligated parent's income or wages.
(2) If more than one plan is offered by the employer, multi- employer trust or union, the child shall be enrolled in the mostcomprehensive plan otherwise available to the obligated parent at a reasonable cost.
(3) Insurance coverage for the child which is ordered pursuant to the provisions of this section shall not be terminated except as provided in subsection (j) of this section.
(h) Where a parent is required by a court or administrative order to provide health coverage, which is available through an employer doing business in this state, the employer is required:
(1) To permit the parent to enroll under family coverage any child who is otherwise eligible for coverage without regard to any enrollment season restrictions;
(2) If the parent is enrolled but fails to make application to obtain coverage of the child, to enroll the child under family coverage upon application by the child's other parent, by the state agency administering the medicaid program or by the child advocate office;
(3) Not to disenroll (or eliminate coverage of) any such child unless the employer is provided satisfactory written evidence that:
(A) The court or administrative order is no longer in effect;
(B) The child is or will be enrolled in comparable coverage which will take effect no later than the effective date of disenrollment; or
(C) The employer has eliminated family health coverage for all of its employees.
(4) To withhold from the employees compensation the employee's share (if any) of premiums for health coverage (exceptthat the amount so withheld may not exceed the maximum amount permitted to be withheld under Section 303(b) of the Consumer Credit Protection Act) and to pay this amount to the insurer.
(i) (1) The signature of the custodian for the child shall constitute a valid authorization to the insurer for the purposes of processing an insurance payment to the provider of medical care for the child.
(2) No insurer, employer or multi-employer trust in this state may refuse to honor a claim for a covered service when the custodian for the child or the obligated parent submits proof of payment for medical bills for the child.
(3) The insurer shall reimburse the custodian for the child or the obligated parent who submits copies of medical bills for the child with proof of payment.
(4) All insurers in this state shall comply with the provisions of section sixteen, article fifteen, chapter thirty-three of this code and section eleven, article sixteen of said chapter and shall provide insurance coverage for the child of a covered employee notwithstanding the amount of support otherwise ordered by the court and regardless of the fact that the child may not be living in the home of the covered employee.
(j) When an order for insurance coverage for a child pursuant to this section is in effect and the obligated parent's employment is terminated, or the insurance coverage for the child is denied, modified or terminated, the insurer shall in addition to complying with the requirements of article sixteen-a, chapter thirty-three of this code, within ten days after the notice of change in coverage is sent to the covered employee, notify thecustodian for the child and provide an explanation of any conversion privileges available from the insurer.
(k) A child of an obligated parent shall remain eligible for insurance coverage until the child is emancipated or until the insurer under the terms of the applicable insurance policy terminates said child from coverage, whichever is later in time, or until further order of the court.
(l)If the obligated parent fails to comply with the order to provide insurance coverage for the child, the court shall:
(1) Hold the obligated parent in contempt for failing or refusing to provide the insurance coverage, or for failing or refusing to provide the information required in subsection (d) of this section;
(2) Enter an order for a sum certain against the obligated parent for the cost of medical care for the child, and any insurance premiums paid or provided for the child during any period in which the obligated parent failed to provide the required coverage; and
(3) In the alternative, other enforcement remedies available under sections two and three, article five, chapter forty-eight-a of this code, or otherwise available under law, may be used to recover from the obligated parent the cost of medical care or insurance coverage for the child. The child advocate office may garnish the wages, salary or other employment income of, and withhold amounts from state tax refunds to, in addition to any other remedies available under law, any person who:
(A) Is required by court or administrative order to provide coverage of the cost of health services to a child eligible formedical assistance under medicaid; and
(B) Has received payment from a third party for the costs of such services but has not used the payments to reimburse either the other parent or guardian of the child or the provider of the services, to the extent necessary to reimburse the state medicaid agency for its costs. Claims for current and past due child support shall take priority over these claims.
(m) Proof of failure to maintain court ordered insurance coverage for the child constitutes a showing of substantial change in circumstances or increased need pursuant to section fifteen of this article, and provides a basis for modification of the child support order.
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