ENROLLED
Senate Bill No. 388
(By Senators Prezioso, Minard, Stollings and Foster)
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[Passed March 10, 2007; in effect ninety days from passage.]
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AN ACT to amend and reenact §48-12-101, §48-12-102 and §48-12-103
of the Code of West Virginia, 1931, as amended, all relating
to medical support provisions in child support orders;
defining terms; establishing procedures for allocation of the
costs of medical support between the parties to a child
support order; and providing guidelines for setting medical
support.
Be it enacted by the Legislature of West Virginia:
That §48-12-101, §48-12-102 and §48-12-103 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 12. MEDICAL SUPPORT.
§48-12-101. Definitions applicable to medical support enforcement.
For the purposes of this article:
(1) "Appropriate health insurance coverage" means insurance coverage that is reasonable in cost, comprehensive in nature and
reasonably accessible to the child to be covered.
(2) "Cash medical support" means an amount ordered to be paid
toward the cost of health insurance provided by a public entity or
by another person through employment or otherwise, or for other
medical costs not covered by insurance.
(3) "Custodian for the children" means a parent, legal
guardian, committee or other third party appointed by court order
as custodian of a child or children for whom child support is
ordered.
(4) 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.
(5) "Insurance coverage" means coverage for medical, dental,
including orthodontic, optical, prescription pharmaceuticals,
psychological, psychiatric or other health care services.
(6) "Child" means a child to whom a duty of child support is
owed.
(7) "Medical care" means medical, dental, optical,
prescription pharmaceuticals, psychological, psychiatric or other
health care service for children in need of child support.
(8) "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 29 U. S. C. §1167, 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.
(9) "National medical support notice" means the written notice
described in 29 U. S. C. §1169 (a)(5)(C) and 42 U. S. C.
§666(a)(19) and issued as a means of enforcing the health care
coverage provisions in a child support order for children whose
parent or parents are required to provide health-care coverage
through an employment-related group health plan. This notice is
consider under ERISA to be a qualified medical child support order
(QMSO).
(10) "Qualified medical child support order" means a medical
child support order which creates or recognizes the existence of an
alternate recipient's right to, or assigns to an alternate
recipient the right to, receive benefits from which a participant
or beneficiary is eligible under a group health plan. A qualified
medical child support order must include the name and the last
known mailing address, if any, of the participant and the name and
mailing address of each alternate recipient covered by the order,
except that, to the extent provided in the order, the name and
mailing address of an official of the IV-D agency may be
substituted for the mailing address of any alternate recipient, a
reasonable description of the type of coverage provided to each
alternate recipient or the manner in which the type of coverage is
determined and the time period for which the order applies.
(11) "Reasonably accessible health insurance coverage" means that the coverage will provide payment for the primary health care
services within a reasonable distance from the child's primary
residence.
(12) "Reasonable costs" means the child's portion of the
medical insurance premiums not exceeding five percent of the gross
income of the parent who provides the coverage.
§48-12-102. Court-ordered medical support.
In every action to establish or modify an order which requires
the payment of child support, the court shall ascertain the 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
address the provision of medical support through one or more of the
following methods:
(1) The court shall determine whether appropriate medical
insurance coverage as defined in section one hundred one of this
article is available to either parent. If such insurance coverage
exists, the court shall order the appropriate parent to enroll the
child in that coverage and the cost of providing appropriate
medical insurance shall be entered on line 5b of worksheet A for
the basic shared parenting child support calculation as provided in
section two hundred four, article thirteen of this code or line 12b
of worksheet B for the extended shared parenting child support
calculation as provided in said section.
(2) If the court does not include the cost of the medical
insurance in the child support calculation, the court may order the
other parent to contribute to the cost of the premium through an
award of medical support. If the amount of the award of child
support in the order is determined using the child support
guidelines, the court shall order that nonrecurring or subsequently
occurring uninsured medical expenses in excess of two hundred fifty
dollars per year per child shall be separately divided between the
parties in proportion to their adjusted gross incomes.
(3) If neither parent currently has access to appropriate
medical insurance coverage, the court shall take the following
actions:
(a) The court shall order the parties to provide appropriate
medical insurance coverage if it becomes available in the future;
and
(b) The court shall order the payment of cash medical support
by either or both parties. The amount of the cash medical support
to be awarded is within the discretion of the court but the total
of the cash medical support and cost of the insurance premiums
shall not exceed five percent of the payor's gross income.
(c) In setting a cash medical support award, the court may
consider the costs of uncovered medical expenses for the child, the
relative percentages of the parties' incomes or the cost to the
government to provide medical coverage for the child.
(d) If the support obligor's adjusted gross income is less than two hundred percent of the federal poverty level, the court
shall set the cash medical support amount at zero.
(e) Cash medical support shall be collected and enforced in
the same manner as child support payments.
(4) The order shall require the obligor to continue to provide
the Bureau for Child Support Enforcement 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.
§48-12-103. Cost of medical support considered in applying
support guidelines.
The Bureau for Child Support Enforcement or the parties to the
case may bring a petition to modify the medical support obligations
upon notification of any new source of insurance coverage or any
change in circumstances as set forth in section one hundred six,
article fourteen of this chapter.