Senate Bill No. 287

(By Senator Blatnik)

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[Introduced February 2, 1996; referred to the Committee on Banking and Insurance; and then to the Committee on Finance .]
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A BILL to amend chapter thirty-three of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article forty- one, relating to the regulation of utilization review entities; duties of insurance commissioner; certificate of authority required; fees; denial and revocation of certificate of authority; minimum requirements of utilization review plan; protection of consumer privacy and confidentiality; determinations made; adverse decisions and preauthorizations; reconsideration of adverse decisions; reporting requirements; criminal and civil penalties; and reporting to governor and Legislature.

Be it enacted by the Legislature of West Virginia:
That chapter thirty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article forty-one, to read as follows:
ARTICLE 41. UTILIZATION REVIEW ACT.
§33-41-1. Legislative findings.

The Legislature finds that:
(a) Consumers of health care services in West Virginia are at great risk of reduced accessibility due to escalating cost of such services;
(b) A need exists for the examination of a cost-effective means for delivery of services without compromising quality, necessary treatment and confidentiality;
(c) Utilization review activities carried out by entities certified in accordance with this article can foster these goals;
(d) This article serves to protect consumers, businesses and providers by ensuring that utilization review entities are qualified to perform utilization review activities and to make informed decisions on the appropriateness of health care services while maintaining confidentiality and fair business practices in accordance with state and federal laws.
§33-41-2. Scope.
The provisions of this article apply only to utilization review activities of inpatient and outpatient health care services, including behavioral health services.
§33-41-3. Definitions.
The following words when used in this article have the meanings ascribed to them in this section, except in those instances where the context clearly indicates a different meaning:
(a) "Adverse decision" means a utilization review determination made by a utilization review entity that a proposed or delivered health care service:
(1) Is or was not necessary, appropriate, or efficient; and
(2) May result in noncoverage of this service.
There is no adverse decision if the utilization review entity and the health provider on behalf of the consumer reach an agreement on the proposed or delivered service.
(b) "Behavioral health service" means any medical, palliative, remedial, social or similar service recommended by a psychiatrist, physician or psychologist for the purposes of reducing mental disability and severity of impairment and restoring a patient to his best possible functional level. These services are designed for all individuals with conditions associated with nontraumatic injury, mental illness, development disabilities, substance abuse and drug dependency, or any thereof.
(c) "Certificate" means a certificate of authority granted by the commissioner to a utilization review entity under the provisions of this article.
(d) "Commissioner" means the commissioner of insurance of this state.
(e) "Concurrent review" means the review of an inpatient stay after the approval of the admission and the initial length of stay for the purpose of determining whether continuation of the stay is medically necessary and planning for discharge.
(f) "Consumer" means a recipient of health care services.
(g) "Emergency services" means services provided in or by a hospital emergency facility to evaluate and treat a medical condition manifesting itself by symptoms of sufficient severity that the absence of prompt medical attention could reasonably be expected by a prudent lay person, who possesses an average knowledge of health and medicine, to result in placing the health of the recipient of such services in serious jeopardy, serious impairment to body function, serious dysfunction of any body organ or part or the continuance of severe pain.
(h) "Health care provider" means any person, partnership, corporation, facility or institution licensed or certified or authorized by law to provide health care services in this state to an individual during that individual's medical care, treatment or confinement.
(i) "Health care service" means an act of diagnosis, treatment, medical evaluation or advice or such other act as may be permissible under the health care licensing statutes of this state.
(j) "Provider" means a licensed facility or certified individual providing health care services.
(k) "Utilization review" means a system for reviewing the appropriate and efficient allocation of health care resources and services given or proposed to be given to a consumer or group of consumers. Utilization review may include, but is not limited to, preauthorization, concurrent review and retrospective review.
(l) "Utilization review entity" means a person or entity performing utilization review activities under contract with, acting on behalf of or directly employed by:
(1) Any resident or foreign corporation, partnership or business licensed to do business in this state; or
(2) A third party that provides or administers health benefits or services to citizens of this state, including:
(i) A health maintenance organization issued a certificate of authority in accordance with article twenty-five-a of this chapter that performs utilization review services for outside entities;
(ii) A health insurer as defined in this chapter;
(iii) A nonprofit hospital service corporation, medical service corporation, health service corporation or health care corporation authorized to offer health care services in this state in accordance with this chapter; or
(iv) Any nonresident or foreign utilization review entity providing utilization review activities for persons located within this state.
(k) "Utilization review plan" means a description of the standards and practices governing utilization review activities performed by a utilization review entity.
§33-41-4. Powers and duties of insurance commissioner.
(a) In addition to all other duties and powers granted to the commissioner in accordance with this chapter and all other applicable state laws, the commissioner shall, no later than one hundred eighty days after the effective date of this section, promulgate in accordance with the provisions of chapter twenty- nine-a of this code such rules as are necessary to carry out the provisions of this article.
(b) The commissioner may issue, deny, renew or refuse to renew on an annual basis and revoke certificates of authority to utilization review entities and to otherwise enforce the provisions of this article. The commissioner shall include within the rules promulgated pursuant to subsection (a) of this section the procedures and requirements for such certificates of authority.
(c) The commissioner may also establish by rule reporting requirements in order to carry out section thirteen of this article.
(d) The commissioner shall promulgate rules to provide the standards for the imposition of an administrative penalty under section fourteen of this article.
§33-41-5. Certificate of authority.
(a) A utilization review entity may not conduct utilization review activities in this state unless the commissioner has granted the utilization review entity a certificate of authority. The commissioner shall issue a certificate to an applicant that has met all the requirements stated herein and all applicable rules promulgated in accordance with this article. A certificate issued under this article is not transferable.
(b) Any utilization review entity that is operating in the state prior to the effective date of this article may continue to conduct utilization review activities until the commissioner acts upon its application submitted in accordance with this article: Provided, That such utilization review entity files an application and submits the appropriate fee within sixty days of the effective date of the rules promulgated pursuant to section four of this article.
(c) The commissioner may deny or revoke a certificate of authority to any utilization review entity or other person who is in violation of this article.
§ 33-41-6. Application for certificate; fees; designation.
(a) No person may engage in utilization review activities within this state unless such person first obtains a certificate of authority from the commissioner.
(b) An applicant for a certificate shall submit to the commissioner an application in the form and accompanied by any supporting documentation required by the commissioner, which application shall be signed and verified by the applicant.
(c) Every person making an application for a certificate in accordance with this article shall, at the same time he submits the application, submit to the commissioner an application fee in an amount to be determined by rule promulgated by the commissioner. All fees collected in accordance with this article shall be deposited into the special revenue account created by section thirteen, article three of this chapter, and shall be expended by the commissioner in furtherance of this article or for the operation of the department of insurance of this state. Any balance in the fund at the end of any fiscal year shall remain in the fund and shall not expire or revert.
§33-41-7. Denial; revocation.
(a) The commissioner shall deny a certificate of authority to any applicant if, upon review of the application:
(1) The commissioner finds that the applicant does not:
(i) Have available the services of sufficient numbers of registered physicians, psychologists, nurses, social workers or similarly qualified persons to carry out its utilization review activities; and
(ii) Meet any applicable rules the commissioner adopts under this article relating to the qualifications of utilization review entities or the performance of utilization review; or
(2) The commissioner finds that the applicant has not provided assurance satisfactory to the commissioner that:
(i) The procedures and policies of the utilization review entity will protect the confidentiality of medical records in accordance with applicable state and federal laws; and
(ii) The utilization review entity will be accessible to providers in accordance with section ten of this article.
(b) The commissioner shall investigate any complaint filed with him by a provider that a utilization review entity is violating this article or the rules promulgated by the commissioner. The commissioner may revoke a certificate of authority if the holder does not comply with performance assurances under this section, violates any provision of this article, violates any rule adopted under any provision of this article or is otherwise found by the commissioner to be transacting business in an unlawful manner.
§33-41-8. Utilization review plan.
At the time of the filing of the application and other supporting documentation, the utilization review entity shall submit to the commissioner the following:
(1) A utilization review plan that includes at least all of the following:
(i) The specific criteria and standards to be used in conducting utilization review activities for proposed or delivered health care services. Such criteria and standards and any revisions thereof shall be published and made available to the commissioner. Any revisions to the criteria or standards must be submitted to the commissioner for approval prior to implementation;
(ii) The provisions by which consumers and providers may seek reconsideration of adverse decisions by the utilization review entity and the provisions by which consumers and providers will be informed of such provisions;
(iii) Expedited procedures for reconsideration and appeal of adverse decisions in emergency situations; and
(iv) A quality assurance program that meets or exceeds the standards adopted by the national utilization review committee and demonstrates to the commissioner that the utilization review entity's activities do not arbitrarily deny services to enrolled or eligible participants.
(2) The type, qualifications and credentials of the personnel either employed by or under contract to the utilization review entity to perform utilization review activities.
(3) The procedures and policies to ensure that a representative of the utilization review entity is accessible by a toll-free telephone number to consumers and providers for twenty-four hours a day, seven days a week. The utilization review entity may not deny any health care services rendered at any time a representative is not accessible.
(4) The policies and procedures to ensure that all applicable state and federal laws to protect the confidentiality of individual medical records are followed.
(5) A copy of the materials designed to inform applicable consumers and providers of the requirements of the utilization review plan.
(6) A list of the providers and third party payers for which the utilization review entity is performing utilization review services in this state.
(7) The policies and procedures to ensure that the utilization review entity has a formal program for the orientation and training of personnel either employed or under contract to perform utilization review activities.
(8) A list of health providers involved in establishing the specific criteria and standards to be used in conducting utilization review activities.
(9) Certification by the utilization review entity that the criteria and standards to be used in conducting utilization review activities are:
(i) Objective;
(ii) Clinically valid;
(iii) Compatible with established principles of health care; and
(iv) Flexible enough to allow deviations from norms when justified on a case-by-case basis.
The information listed above is subject to the approval of the commissioner, and the commissioner may request corrected or additional information upon reviewing the information submitted. The commissioner shall consider the information submitted in determining whether to issue or deny a certificate. The commissioner shall make the information submitted pursuant to this section available for public review. The utilization review entity shall provide each provider listed as a recipient of its services with a copy of its review standards, criteria and procedures.
§33-41-9. Consumer privacy and confidentiality.
(a) Each utilization review entity shall have written procedures for assuring that consumer-specific information obtained during the process of utilization review will be:
(1) Limited to the minimum amount of information that is necessary to process the claim for the specific procedure in question;
(2) Relevant and necessary for providing appropriate utilization review services;
(3) Used only for the purposes of utilization review and case management of the particular consumer; and
(4) Kept confidential in accordance with this article and with all applicable state and federal laws.
§33-41-10. Determinations by utilization review entities.
(a) Nonemergency courses of treatment. Except as provided in subsection (b) of this section, a utilization review entity shall:
(1) Make all initial determinations on whether to authorize or certify a nonemergency course of treatment for a consumer on a timely basis, not later than one business day from receipt of the information necessary to make the determination; and
(2) Promptly notify the attending physician, provider and consumer of the determination.
(b) Extended stays or additional health care services. A utilization review entity shall:
(1) Make all determinations on whether to authorize or certify an extended stay in a health care facility or additional health care services on a timely basis, not later than one business day from receipt of the information necessary to make the determination; and
(2) Promptly notify the attending physician, provider and consumer of the determination.
(c) Reconsideration. If an initial determination is made by the utilization review entity not to authorize or certify a course of treatment, an extended stay in a health care facility, or additional health care services and the attending physician, provider or consumer believes the determination warrants an immediate reconsideration, the utilization review entity shall provide the attending physician, provider or consumer an opportunity to seek reconsideration of that determination by telephone on an expedited basis, not to exceed twenty-four hours from the time the physician, provider or consumer first sought the reconsideration.
(d) Emergency inpatient admissions. For emergency inpatient admissions, a utilization review entity may not render an adverse decision or deny payment for emergency services solely because the attending physician, provider or consumer did not notify the utilization review entity of the emergency admission within twenty-four hours or other prescribed period of time after that admission or because the patient's medical condition prevented the provider from determining:
(1) The patient's coverage status; or
(2) The utilization review entity's emergency admission notification requirements.
(e) Access. Utilization review activities and utilization review shall not be used to deny or limit consumers' access to medically necessary emergency treatment.
§33-41-11. Adverse decisions and preauthorizations.
(a) Adverse decisions. All adverse decisions shall be made by a physician or by a panel of other appropriate health providers with at least two physicians selected by the utilization review entity who are:
(1)(i)Board certified in the same specialty as the treatment under review; or
(ii) Actively practicing, or have demonstrated expertise, in the specific area of health care services or treatment under review; and
(2) Not compensated by the utilization review entity in a manner that provides a financial incentive, directly or indirectly, to deny or reduce coverage.
(b) Preauthorized or approved courses of treatment. If a course of treatment has been preauthorized or approved for a consumer, a utilization review entity may not revise or modify the specific criteria or standards used in the utilization review plan in order to make an adverse decision regarding the services delivered to that consumer.
§33-41-12. Reconsideration of adverse decisions.
(a) In the event a consumer or provider seeks reconsideration of an adverse decision by a utilization review entity, the final determination of the adverse decision shall be made based on the professional judgement of a physician, or a panel of other appropriate health care providers with at least two physicians selected by the utilization review entity who are
(1)(i) Board certified in the same specialty as the treatment under review; or
(ii) Actively practicing, or have demonstrated expertise, in the specific area of health care services or treatment under review; and
(2) Not compensated by the utilization review entity in a manner that provides a financial incentive directly or indirectly to deny or reduce coverage.
(b) Every final determination of reconsideration of an adverse decision by a utilization review entity shall be made in writing and shall reference the specific criteria and standards, including interpretive guidelines, upon which the denial or reduction in coverage is based.
(c) No utilization review entity may charge a fee to a consumer or health provider for an appeal of an adverse decision.
(d) No health care provider may charge a fee for preparation of documents relating to review of an adverse decision except for reasonable copying charges to the extent permitted by state law.
§33-41-13. Reporting requirements.
The commissioner may establish reporting requirements in order to evaluate the effectiveness of utilization review entities and to determine if the utilization review entities and the utilization review programs are in compliance with the provisions of this article and applicable rules.
§33-41-14. Penalties.
(a) Criminal. An entity which violates any provision of this article or any rule adopted hereunder is guilty of a misdemeanor, and, upon conviction thereof, may be fined not more than one thousand dollars. Each day a criminal violation is continued shall be a separate offense.
(b) Civil. In addition to the provisions of subsection (a) of this section, the commissioner may impose an administrative penalty of up to five thousand dollars for a violation of any provision of this article and may revoke the entity's certificate of authority.
§33-41-14. Reporting to governor and Legislature.
Prior to the first day of each regular legislative session, the commissioner shall submit a report to the governor and to the Legislature regarding utilization review entities. Such report shall include but not be limited to their conduct, licensure status, consumer complaints and the response of reviewing entities and cost effectiveness in relation to such conduct.


NOTE: The purpose of this bill is to require utilization review entities to receive a certificate of authority from the Insurance Commissioner; to require application fees to be deposited into a nonexpiring account for the Insurance Commissioner; to set forth the criteria upon which a certificate of authority must be denied or revoked; to require utilization review entities to prepare utilization review plans, including utilization review criteria and procedures for reconsideration; to require written procedures to assure confidentiality of consumer-specific information; to set parameters for certain utilization review decisions and for adverse decisions and precertification; to provide criminal and civil penalties for violation; and to require the Insurance Commissioner to implement the article through the adoption of rules and to report annually to the governor and Legislature.

This article is new; therefore, underscoring and strike- throughs have been omitted.