WEST virginia Legislature
2017 regular session
By
[
to the Committee on Banking and Insurance then Health and Human Resources.
A BILL to amend and
reenact §33-15-2a and §33-15-4, of the Code of West Virginia, 1931, as amended;
to amend said code by adding thereto three new sections designated §33-15-4p, §33-15-20a
and §33-15-22, all related to defining surprise bills and health care
providers, adding new disclosure requirements for health care providers,
hospitals and insurers, adding the requirement that insurers develop an access
plan for consumers, and establishing how surprise bills are to be handled in
certain circumstances.
Be it enacted by the Legislature
of West Virginia:
That §33-15-2a and §33-15-4
of the Code of West Virginia, 1931, as amended, be amended and reenacted; and
that said code be amended by adding thereto three new sections, designated §33-15-4p,
§33-15-20a and §33-15-22, all to read as follows:
ARTICLE 15. ACCIDENT AND
SICKNESS INSURANCE.
§33-15-2a. Definitions.
For
purposes of this section and sections two-b, two-c, two-d, two-e, two-f, two-g
and four-e:
(a)
"Accident and sickness insurance coverage" means benefits consisting
of medical care (provided directly, through insurance or reimbursement, or
otherwise and including items and services paid for as medical care) under any
hospital or medical service policy of certificate, hospital or medical service
plan contract, or health maintenance organization contract offered by an
insurer, but does not include short-term limited duration insurance.
(b)
"Bona fide Association" means an association which has been actively
in existence for at least five years; has been formed and maintained in good
faith for purposes other than obtaining insurance; does not condition
membership in the association on any health status-related factor relating to
an individual; makes accident and sickness insurance coverage offered through the
association available to all members regardless of any health status-related
factor relating to the members or individuals eligible for coverage through a
member; does not make accident and sickness insurance coverage offered through
the association available other than in connection with a member of the
association; and meets any additional requirements as may be set forth in this
chapter or by rule.
(c)
"COBRA continuation provision" means any of the following:
(1)
Section 4980B of the Internal Revenue Code of 1986, other than subsection
(f)(1) of such section insofar as it relates to pediatric vaccines;
(2) Part 6
of Subtitle B of Title I of the Employee Retirement Income Security Act of
1974, other than Section 609 of such act; or
(3) Title
XXII of the Public Health Service Act.
(d)
"Creditable coverage" means, with respect to an individual, coverage
of the individual under any of the following:
(1) A
group health plan;
(2)
Accident and sickness insurance coverage;
(3) Part A
or Part B of Title XVIII of the Social Security Act;
(4) Title
XIX of the Social Security Act, other than coverage consisting solely of
benefits under section 1928;
(5)
Chapter 55 of Title 10 of the United States Code;
(6) A
medical care program of the Indian Health Service or of a tribal organization;
(7) A
state health benefits risk pool;
(8) A
health plan offered under Chapter 89 of Title 5 of the United States Code;
(9) A
public health plan (as defined in federal regulations); or
(10) A
health benefit plan under section 5(e) of the Peace Corps Act (22 U.S.C.
2504(e)).
The term
"creditable coverage" does not include those benefits set forth in
section two-g of this article.
(e)
"Eligible individual" means an individual:
(1) For
whom, as of the date on which the individual seeks coverage, the aggregate
period of creditable coverage is eighteen months or more and whose most recent
prior creditable coverage was under a group health plan, governmental plan (as
defined in section 3(32) of the Employee Retirement Income Security Act of
1974), church plan (as defined in section 3(33) of the Employee Retirement
Income Security Act of 1974), or accident and sickness insurance coverage
offered in connection with any such plan;
(2) Who is
not eligible for coverage under a group health plan, Part A or Part B of Title
XVIII of the Social Security Act, or state plan under Title XIX of such act (or
any successor program), and does not have other accident and sickness insurance
coverage;
(3) With
respect to whom the most recent prior creditable coverage was not terminated as
a result of fraud, intentional misrepresentation of material fact under the
terms of the coverage, or nonpayment of premium;
(4) Who
did not turn down an offer of continuation of coverage under a COBRA
continuation provision or under a similar state program if it was offered; and
(5) Who,
if the individual elected such continuation coverage, has exhausted that
coverage under the COBRA continuation provision or similar state program.
(f)
"Group health plan" means an employee welfare benefit plan (as
defined in section 3(1) of the Employee Retirement Income Security Act of 1974)
to the extent that the plan provides medical care to employees and their
dependents (as defined under the terms of the plan) directly or through
insurance, reimbursement or otherwise.
(g)
“Health care provider” means a person, partnership, corporation, facility,
hospital or institution licensed, certified or authorized by law to provide
professional health care service in this state to an individual during the
individual’s medical treatment, or behavioral health care, treatment or
confinement.
(g) (h)
"Health status-related factor" means an individual's health status,
medical condition (including both physical and mental illnesses), claims
experience, receipt of health care, medical history, genetic information, and
evidence of insurability (including conditions arising out of acts of domestic
violence) or disability.
(h) (i)
"Higher-level coverage" means a policy form for which the actuarial
value of the benefits under the coverage is at least fifteen percent greater
than the actuarial value of lower-level coverage offered by the insurer in this
state, and the actuarial value of the benefits under the coverage is at least
one hundred percent but not greater than one hundred twenty percent of a
weighted average.
(i) (j)
"Individual market" means the market for accident and sickness
insurance coverage offered to individuals other than in connection with a group
health plan.
(j) (k)
"Insurer" means an entity licensed by the commissioner to transact
accident and sickness insurance in this state and subject to this chapter, but
does not include a group health plan or short term limited duration insurance.
(k) (l)
"Lower-level coverage" means a policy form for which the actuarial
value of the benefits under the coverage is at least eighty-five percent but
not greater than one hundred percent of a weighted average.
(l) (m)
"Medical care" means amounts paid for, or paid for insurance
covering, the diagnosis, cure, mitigation, treatment or prevention of disease,
or amounts paid for the purpose of affecting any structure or function of the
body, including the amounts paid for transportation primarily for and essential
to such care.
(m) (n)
"Network plan" means accident and sickness insurance coverage of an
insurer under which the financing and delivery of medical care (including items
and services paid for as medical care) are provided, in whole or in part,
through a definite set of providers under contract with the insurer.
(n) (o)
"Preexisting condition exclusion" means a limitation or exclusion of
benefits relating to a condition based on the fact that the condition was
present before the date of enrollment for coverage, whether or not any medical
advice, diagnosis, care or treatment was recommended or received before such
date.
(p)
“Surprise bill” means an invoice for health care services, other than emergency
services, received by a patient in one of three circumstances:
(1) An
insured receives services from an out-of-network health care provider at an
in-network hospital or ambulatory surgery center, where a participating health
care provider is unavailable or an out-of-network health care provider renders
services without the patient’s knowledge.
(2) An
insured receives services from an out-of-network health care provider, where the
services were referred by an in-network provider without the patient’s express
written acknowledgment that the referral is to an out-of-network provider, and
that the referral may result in costs not covered in the health plan.
(3) An
uninsured patient receives services at a hospital or ambulatory surgery center
and does not receive the disclosures required in subdivision (1), subsection
(b), section four, article fifteen, chapter thirty-three of this code.
(o) (q)
"Weighted average" means the average actuarial value of the benefits
provided by all the accident and sickness insurance coverage issued (as elected
by the insurer) either by that insurer or by all insurers in this state in the
individual accident and sickness market during the previous year (not including
coverage issued under this section), weighted by enrollment for the different
coverage.
§33-15-4. Required
policy provisions.
Except as
provided in section six of this article, each such policy delivered or issued
for delivery to any person in this state shall contain the provisions specified
in this section in the words in which the same appear in this section: Provided,
That the insurer may, at its option, substitute for one or more of such
provisions corresponding provisions of different wording approved by the
commissioner which are in each instance not less favorable in any respect to
the insured or the beneficiary. Such provisions shall be preceded individually
by the caption appearing in this section or, at the option of the insurer, by
such appropriate individual or group captions or subcaptions as the
commissioner may approve.
(a) A
provision as follows:
"Entire
Contract; Changes: This policy, including the endorsements and the attached
papers, if any, constitutes the entire contract of insurance. No change in this
policy shall be valid until approved by an executive officer of the insurer and
unless such approval be endorsed hereon or attached hereto. No agent has
authority to change this policy or to waive any of its provisions."
(b) A
provision as follows:
"Time
Limit on Certain Defenses:
(1) After two years from the date of issue of
this policy no misstatements, except fraudulent misstatements, made by the
applicant in the application for such policy shall be used to void the policy
or to deny a claim for loss incurred or disability (as defined in the policy)
commencing after the expiration of such two-year period."
The
foregoing policy provision shall not be so construed as to affect any legal
requirement for avoidance of a policy or denial of a claim during such initial
two-year period, nor to limit the application of subdivisions (a), (b), (c),
(d) and (e) of section five of this article in the event of misstatement with
respect to age or occupation or other insurance. A policy which the insured has
the right to continue in force subject to its terms by the timely payment of
premium (i) until at least age fifty, or (ii) in the case of a policy issued
after age forty-four, for at least five years from its date of issue, may
contain in lieu of the foregoing the following provision (from which the clause
in parentheses may be omitted at the insurer's option) under the caption
"Incontestable":
"After
this policy has been in force for a period of two years during the lifetime of
the insured (excluding any period during which the insured is disabled), it
shall become incontestable as to the statements contained in the application.
(2) No
claim for loss incurred or disability (as defined in the policy) commencing
after two years from the date of issue of this policy shall be reduced or
denied on the ground that a disease or physical condition not excluded from
coverage by name or specific description effective on the date of loss had
existed prior to the effective date of coverage of this policy."
(c) A
provision as follows:
"Grace
Period: A grace period of __________________ (insert a number not less than §7'
for weekly premium policies, §10' for monthly premium policies and §31' for all
other policies) days will be granted for the payment of each premium falling
due after the first premium, during which grace period the policy shall
continue in force."
(d) A
provision as follows:
"Reinstatement:
If any renewal premium be not paid within the time granted the insured for
payment, as subsequent acceptance of premium by the insurer or by any agent
duly authorized by the insurer to accept such premium, without requiring in
connection therewith an application for reinstatement, shall reinstate the
policy: Provided, That if the insurer or such agent requires an
application for reinstatement and issues a conditional receipt for the premium
tendered, the policy will be reinstated upon approval of such application by
the insurer, or lacking such approval, upon the forty-fifth day following the
date of such conditional receipt unless the insurer has previously notified the
insured in writing of its disapproval of such application. The reinstated
policy shall cover only loss resulting from such accidental injury as may be
sustained after the date of reinstatement and loss due to such sickness as may
begin more than ten days after such date. In all other respects the insured and
insurer shall have the same rights thereunder as they had under the policy
immediately before the due date of the defaulted premium, subject to any
provisions endorsed hereon or attached hereto in connection with the
reinstatement."
(e) A
provision as follows:
"Notice
of Claim: Written notice of claim must be given to the insurer within twenty
days after the occurrence or commencement of any loss covered by the policy, or
as soon thereafter as is reasonably possible. Notice given by or on behalf of
the insured or the beneficiary to the insurer at ____________________ (insert
the location of such office as the insurer may designate for the purpose), or
to any authorized agent of the insurer, with information sufficient to identify
the insured, shall be deemed notice to the insurer."
In a
policy providing a loss-of-time benefit which may be payable for at least two
years, an insurer may at its option insert the following between the first and
second sentences of the above provision:
"Subject
to the qualifications set forth below, if the insured suffers loss of time on
account of disability for which indemnity may be payable for at least two
years, he or she shall, at least once in every six months after having
given notice of claim give to the insurer notice of continuance of said
disability, except in the event of legal incapacity. The period of six months
following any filing of proof by the insured or any payment by the insurer on
account of such claim or any denial of liability, in whole or in part, by the
insurer shall be excluded in applying this provision. Delay in the giving of
such notice shall not impair the insured's right to any indemnity which would
otherwise have accrued during the period of six months preceding the date on
which such notice is actually given."
(f) A
provision as follows:
"Claim
Forms: The insurer, upon receipt of a notice of claim, will furnish to the
claimant such forms as are usually furnished by it for filing proofs of loss.
If such forms are not furnished within fifteen days after the giving of such
notice the claimant shall be deemed to have complied with the requirements of
this policy as to proof of loss upon submitting, within the time fixed in the
policy for filing proofs of loss, written proof covering the occurrence, the
character and the extent of the loss for which claim is made."
(g) A
provision as follows:
"Proof
of Loss: Written proof of loss must be furnished to the insurer at its said
office in case of claim for loss for which this policy provides any periodic
payment contingent upon continuing loss within ninety days after the
termination of the period for which the insurer is liable and in case of claim
for any other loss within ninety days after the date of such loss. Failure to
furnish such proof within the time required shall not invalidate nor reduce any
claim if it was not reasonably possible to give proof within such time,
provided such proof is furnished as soon as reasonably possible and in no event,
except in the absence of legal capacity, later than one year from the time
proof is otherwise required."
(h) A
provision as follows:
"Time
of Payment of Claims: Indemnities payable under this policy for any loss other
than loss for which this policy provides any periodic payment will be paid
immediately upon receipt of due written proof of such loss. Subject to due
written proof of loss, all accrued indemnities for loss for which this policy
provides periodic payment will be paid _____________ (insert period for payment
which must not be less frequently than monthly) and any balance remaining
unpaid upon the termination of liability will be paid immediately upon receipt
of due written proof."
(i) A
provision as follows: "Payment of Claims: Indemnity for loss of life will
be payable in accordance with the beneficiary designation and the provisions
respecting such payment which may be prescribed herein and effective at the
time of payment. If no such designation or provision is then effective, such
indemnity shall be payable to the estate of the insured. Any other accrued
indemnities unpaid at the insured's death may, at the option of the insurer, be
paid either to such beneficiary or to such estate. All other indemnities will
be payable to the insured."
The
following provisions, or either of them, may be included with the foregoing
provisions at the option of the insurer:
"If
any indemnity of this policy shall be payable to the estate of the insured, or
to an insured or beneficiary who is a minor or otherwise not competent to give
a valid release, the insurer may pay such indemnity, up to an amount not
exceeding $_________ (insert an amount which shall not exceed $1,000), to any
relative by blood or connection by marriage of the insured or beneficiary who is
deemed by the insurer to be equitably entitled thereto. Any payment made by the
insurer in good faith pursuant to this provision shall fully discharge the
insurer to the extent of such payment."
"Subject
to any written direction of the insured in the application or otherwise all or
a portion of any indemnities provided by this policy on account of hospital
nursing, medical, or surgical services may, at the insurer's option and unless
the insured requests otherwise in writing not later than the time of filing
proofs of such loss, be paid directly to the hospital or person rendering such
services; but it is not required that the service be rendered by a particular
hospital or person."
(j) A
provision as follows:
"Physical
Examinations and Autopsy: The insurer at its own expense shall have the right
and opportunity to examine the person of the insured when and as often as it
may reasonably require during the pendency of a claim hereunder and to make an
autopsy in case of death where it is not forbidden by law."
(k) A
provision as follows:
"Legal
Actions: No action at law or in equity shall be brought to recover on this
policy prior to the expiration of sixty days after written proof of loss has
been furnished in accordance with the requirements of this policy. No such
action shall be brought after the expiration of three years after the time
written proof of loss is required to be furnished."
(l) A
provision as follows:
"Change
of Beneficiary: Unless the insured makes an irrevocable designation of
beneficiary, the right to change of beneficiary is reserved to the insured and
the consent of the beneficiary or beneficiaries shall not be requisite to
surrender or assignment of this policy or to any change of beneficiary or
beneficiaries, or to any other changes in this policy."
The first
clause of this provision, relating to the irrevocable designation of
beneficiary, may be omitted at the insurer's option.
(m) A
provision as follows:
An
access plan that includes the following components:
(1) The
insurer’s network, including how the use of telemedicine or telehealth or other
technology may be used to meet network access standards;
(2) The
insurer’s procedures for making and authorizing referrals within and outside
its network, if applicable;
(3) The
insurer’s process for monitoring and assuring on an ongoing basis the
sufficiency
of the network to meet the health care needs of populations that enroll in
network plans;
(4) The
insurer’s process for making available in consumer-friendly language the
criteria it has used to build its provider network, including information about
the breadth of the network and the criteria used to select or rank providers,
which must be made available through the health carrier’s on-line and in-print
provider directories;
(5) The
insurer’s efforts to address the needs of covered persons who may face barriers
to access to care, including, but not limited to, children with serious,
chronic or complex medical conditions, individuals with limited English
proficiency and illiteracy, individuals with diverse cultural and ethnic
backgrounds, and individuals with physical and mental disabilities;
(6) The
insurer’s methods for assessing the health care needs of covered persons and
their satisfaction with services;
(7) The
insurer’s method of informing covered persons of the plan’s services and
features, including but not limited to, the plan’s grievance procedures, its
process for choosing and changing providers, its process for updating its
provider directories for each of its network plans, a statement of services
offered, including those services offered through the preventative care
benefit, if applicable, and its procedures for providing and approving
emergency and specialty care;
(8) The
insurer’s system for ensuring the coordination and continuity of care for
covered persons referred to specialty physicians, for covered persons using
ancillary services, including social services and other community resources,
and for ensuring appropriate discharge planning;
(9) The
insurer’s process for enabling covered persons to change primary care
professionals;
(10)
The insurer’s proposed plan for providing continuity of care in the event of
contract termination between the health carrier and any of its participating
providers, or in the event of the health carrier’s insolvency or other
inability to continue operations. The description shall explain how covered
persons will be notified of the contract termination, or the health carrier’s
insolvency or other cessation of operations, and transferred to other providers
in a timely manner;
(11)
The insurer’s process for monitoring access to physician specialist services in
emergency room care, anesthesiology, radiology, hospitalist care and
pathology/laboratory services at their participating hospitals; and
(12)
Any other information required by the commissioner to determine compliance with
the provisions of this article.
§33-15-4p. Required
disclosures:
(a)
Health care providers must:
(1)
Disclose to patients and prospective patients, in writing or through their
website, their plan and hospital affiliations prior to the provision of
nonemergency services and verbally at the time an appointment is scheduled.
(2) An
out of network provider must inform the patient, prior to providing
nonemergency services that: (i) The actual or estimated amount for the service
is available upon request, and (ii) if requested, will be disclosed in writing
with a warning that costs could go up if unanticipated complications occur.
(b)
Physicians, in addition to the foregoing, must provide a patient and the
inpatient or outpatient hospital in which the patient is scheduled for
admission with the name, practice name, mailing address and phone number of any
other physician scheduled to treat the patient and information as to how to
determine the health plan in which the provider participates.
(c)
Hospitals must post the following information on their website:
(1)
Standard charges for services provided by the hospital, including
diagnosis-related groups (DRGs);
(2) The
health plans in which they participate;
(3) A
warning that: (i) Charges for health care provider’s who provide services in
the hospital are not part of the hospital’s charges; and (ii) health care
providers who provide services in the hospital may not be in the same networks
as the hospital; and
(4) The
name, address and phone number of both contracted specialty practice group
providers and employed physicians, together with information regarding how they
can be contacted to determine their plan affiliations.
(5) In
addition, in the registration and admission materials provided in advance of
the provision of nonemergency services, hospitals must: (i) Advise patients to
check with the health care provider arranging their services to determine the
name, address and phone number of any other health care provider involved in
the patient’s care, and whether any employed or contracted specialty physicians
are expected to participate in the patient’s care; and (ii) provide patients
with information regarding how they can timely determine the health plans in
which the health care providers participate.
(d)
Health Plans shall:
(1)
Provide information in writing and on the Internet that allows consumers to
estimate anticipated out-of-pocket costs for out of network services in a
particular geographical area based on the difference between what the insurer
will reimburse for the out of network services and the usual and customary
costs for the out of network services.
(2)
Upon request from an enrollee or prospective enrollee, disclose the approximate
dollar amount that the insurer will pay for a particular out of network service
but that the approximation is not binding on the insurer and may change.
§33-15-20a. Insurers
requirements related to in-network and out of network providers.
(a) An
insurer shall have a process to assure that a covered person obtains a covered
benefit at an in-network level of benefits from a nonparticipating provider, or
shall make other arrangements acceptable to the commissioner when:
(1) The
insurer has a sufficient network, but has determined that it does not have a
type of provider available to provide the covered benefit to the covered person
or it does not have a participating provider available to provide the covered
benefit without unreasonable travel or delay; or
(2) The
insurer has an insufficient number or type of participating providers available
to provide the covered benefit to the covered person without unreasonable
travel or delay.
(b) The
insurer shall specify the process a covered person may use to request access to
obtain a covered benefit from a nonparticipating out of network provider as
provided in subsection (a) of this section when:
(1) The
covered person is diagnosed with a condition or disease that requires specialized
health care services or medical services; and
(2) The
insurer:
(i)
Does not have a network provider of the required specialty with the
professional training and expertise to treat or provide health care services
for the condition or disease; or
(ii) Cannot
provide reasonable access to a network provider with the required specialty
with the professional training and expertise to treat or provide health care
services for the condition or disease without unreasonable delay.
(c) The
insurer shall treat the services the covered person receives from a nonnetwork
provider pursuant to subdivision two of subsection b of this section as if the
services were provided by a network provider.
(d) The
process described in this section must ensure that requests to obtain a covered
benefit from a nonparticipating provider are addressed in a timely fashion
appropriate to the covered person’s condition.
§33-15-22. Coverage
of surprise bills.
(a) In
order to be protected from surprise bills, the consumer must sign an assignment
of benefits form which will enable the provider to seek payment directly from
the consumer’s insurer by submitting the assignment of benefit form along with
a copy of the bill believed to be a surprise bill. Upon payment of a reasonable
payment of a surprise bill, the provider can dispute the amount through an
independent dispute resolution process established by the commissioner.
(b) The
independent dispute process will consider, among other things, whether there is
a significant disparity between the fee charged by the health care provider as
compared to other fees paid to similarly qualified out-of-network providers in
the same region, the level of training and education of the health care
provider, and the complexity and circumstances of the case.
NOTE: The purpose of this bill is
to define surprise bills, to protect consumers from surprise bills in certain
circumstances, to require additional disclosures by health care providers,
hospitals and insurers and to require insurers to develop an access plan with certain
components for consumers, and establishing how surprise bills are to be handled
in certain circumstances.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.