H. B. 4402
(By Delegates Fleischauer, Compton and Leach)
[Introduced February 12, 1998; referred to the
Committee on Government Organization then Finance.]
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- two, relating to the managed care consumer protection act;
providing for a short title, stating legislative purpose and
intent; defining terms; providing that article applies to
all managed care entities operating within the state;
providing for access to personnel and facilities; providing
for choice of health care professional; prohibiting gag
rules; providing for coverage for drugs and devices;
requiring disclosures regarding experimental treatments;
providing for quality assurance programs; provision for data
systems and confidentiality; providing for clinical decision
making; providing for oversight authority; and establishing a grievance procedure, review and appeals.
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-two, to
read as follows:
ARTICLE 42. MANAGED CARE CONSUMER PROTECTION ACT.
This article shall be known and may be cited as the "Managed
Care Consumer Protection Act."
§33-42-2. Purpose and intent.
The purpose of this article is to ensure that enrollees
receive adequate health care services under a managed care
system. The intent of this article is to ensure that:
(a) Enrollees have full and timely access to appropriate
health care personnel and facilities;
(b) Enrollees have adequate choice among qualified health
(c) There is open communication between physicians and
(d) Enrollees have access to comprehensive pharmaceutical
(e) Enrollees have access to information regarding limits on coverage of experimental treatments;
(f) There is high quality of care within a managed care
(g) Medical decisions are made by the appropriate medical
(h) Health care professionals within a plan are
practitioners in good standing;
(i) Managed care plan data are available as appropriate;
(j) There is full public access to information regarding
health care service delivery within plans;
(k) The state has authority to oversee all managed care
(l) There is a fair vehicle for resolving enrollee
complaints in a managed care system; and
(m) There is timely resolution of enrollee grievances and
As used in this article:
(a) "Appeal" means a formal process whereby an enrollee,
whose care has been reduced, denied, or terminated or whereby the
enrollee deems the care inappropriate, can contest an adverse
grievance decision by the health care services plan.
(b) "Emergency" means a medical condition, the onset of which is sudden and unexpected, that manifests itself by symptoms
of sufficient severity, that a prudent layperson, who possesses
an average knowledge of health and medicine, could reasonably
assume that the condition requires immediate medical treatment,
and could expect that the absence of medical attention to result
in serious impairment to bodily functions or place the person's
health in serious jeopardy.
(c) "Enrollee" means an individual who is enrolled in the
managed care entity.
(d) "Expedited review" means a review process which takes no
more than seventy-two hours after the review is commenced.
(e) "Experimental treatment" means treatment that, while not
commonly used for a particular condition or illness, nevertheless
is recognized for treatment of the particular condition or
illness, and there is no clearly superior, nonexperimental
treatment alternative available to the enrollee.
(f) "Grievance" means a written complaint submitted by or on
behalf of the enrollee.
(g) "Health care provider" means a clinic, hospital
physician organization, preferred provider organization,
independent practice association, or other appropriately licensed
provider of health care services or supplies.
(h) "Health care professional" means a physician or other health care practitioner providing health care services.
(i) "Health care services" means services for the diagnosis,
prevention or treatment of a health condition, illness, injury or
(j) "Managed care entity" means any entity including a
licensed insurance company, hospital or medical service plan,
health maintenance organization, limited health services
organization, preferred provider organization, third-party
administrator or any person or entity that establishes, operates
or maintains a network of participating health care
(k) "Managed care plan" means a plan operated by a managed
care entity that provides for the financing and delivery of
health care services to persons enrolled in the plan, with
financial incentives for persons enrolled in the plan to use the
participating health care professionals and procedures covered by
(l) "Participating practitioner" means a health care
professional who has entered into an agreement with a managed
care entity to provide health care services to an enrollee in the
managed care plan.
(m) "Point of service option" means an option for the
enrollee to choose to receive service from a nonparticipating health care professional or provider.
(n) "Primary care practitioner" means a fully licensed
health care professional under contract with the plan, who has
been designated by the plan to coordinate, supervise, and/or
provide ongoing care to the enrollee and includes: (i) Primary
care physicians; and (ii) physician assistants and nurse
practitioners: Provided, That physician assistants and nurse
practitioners practice under the direct supervision of a fully
licensed primary care physician.
(o) "Prudent layperson" is a person without specific medical
training for the illness or condition in question who acts as a
reasonable person would under similar circumstances.
(p) "Quality assurance" means the ongoing evaluation of the
quality of health care provided to enrolles.
§33-42-4. Applicability and scope.
This article applies to all managed care entities operating
within the state.
§33-42-5. Access to personnel and facilities.
(a) Each managed care plan shall include a sufficient number
and type of primary care practitioners and specialists,
throughout the service area, to meet the needs of enrollees and
to provide meaningful choice. Each managed care plan shall
demonstrate that it offers:
(1) An adequate number of accessible acute care hospital
services, within a reasonable distance and/or travel time;
(2) An adequate number of accessible primary care
practitioners, within a reasonable distance and/or travel time:
Provided, That primary care practitioners include family practice
and general practice physicians, internists, obstetrician/
gynecologists and pediatricians;
(3) An adequate number of accessible specialists and
subspecialists, within a reasonable distance and/or travel time:
Provided, That when the type of medical specialist needed for a
specific condition is not represented on the specialty panel,
enrollees shall be afforded access to nonparticipating health
(4) The availability of specialty medical services,
including physical therapy, occupational therapy and
rehabilitation services; and
(5) The availability of nonpanel specialists, when a
patient's unique medical circumstances warrant it.
(b) Each managed care plan shall provide for continuity of
care with established primary care practitioners when the health
care professional's contract is terminated. The plan shall allow
enrollees, at no additional out-of-pocket cost, to continue
receiving services from a primary care practitioner whose contract with the plan is terminated without cause. This
continuance shall be effective for sixty days when the enrollee
requests continued care.
(c) Each managed care plan shall provide telephone access to
the managed care plan for sufficient time during business and
evening hours to ensure enrollee access for routine care, and
twenty-four-hour telephone access to either the plan or a
participating provider or practitioner, for emergency care or
authorization for care.
(d) Each managed care plan shall establish reasonable
standards for waiting times to obtain appointments, except as
provided below for emergency services. These standards shall
include appointment scheduling guidelines based on the type
of health care service, including prenatal care appointments,
well-child visits and immunizations, routine physicals, follow-up
appointments for chronic conditions and urgent care.
(e) Each managed care plan shall cover and reimburse
expenses for emergency care obtained, without prior
authorization, in situations where a prudent layperson could
reasonably believe the condition required immediate attention at
the nearest facility.
(f) Each managed care plan shall demonstrate that it has
developed an access plan to meet the needs of vulnerable and under-served populations:
(1) When a significant number of enrollees in the plan
speaks a first language other than English, the plan shall
provide access to personnel fluent in languages other than
English, to the greatest extent possible; and
(2) The plan shall develop standards for continuity of care
following enrollment, including sufficient information on how to
access care within the plan.
(g) Each managed care plan shall hold enrollees harmless
against claims from participating practitioners in the managed
care plan for payment of the cost of covered health services.
§33-42-6. Choice of health care professional.
(a) Each enrollee shall be afforded an adequate choice among
managed care plan health care professionals who are accessible
(b) Each managed care plan shall permit enrollees to choose
their own primary care practitioner from a list of health care
professionals within the plan. This list shall be updated as
health care professionals are added or removed and shall include:
(1) A sufficient number of primary care practitioners who
are accepting new enrollees; and
(2) A sufficient mix of primary care practitioners that
reflects a diversity that is adequate to meet the needs of the enrolled population's varied characteristics, including age,
gender, race and health status.
(c) Each managed care plan shall develop a system to permit
enrollees to use a personal physician other than a primary care
physician when the enrollee's medical conditions warrant it.
This may include enrollees suffering from chronic diseases as
well as those with other special needs.
(d) Each managed care plan shall provide continuity of care
and appropriate referral to specialists within the plan, when
specialty care is warranted:
(1) Enrollees shall be afforded access to medical
specialists on a timely basis; and
(2) Enrollees shall be provided with a choice of specialists
when a referral is made.
(e) Each managed care plan shall offer an indemnity option,
a point-of-service option and a managed care plan. The point-of- service option may require that the enrollee in the plan pay a
reasonable portion of the costs of such out-of-plan care.
(f) Each plan shall provide enrollees with access to a
consultation for a second opinion.
§33-42-7. Gag rules.
(a) A managed care plan may not contract with a health care
provider to limit the health care professional's disclosure to an enrollee or on behalf of an enrollee any information relating to
his or her medical condition or treatment options.
(b) A health care professional may not be penalized, or his
or her contract with the managed care plan terminated, because
the health care professional offers referrals, or discusses
medically necessary or appropriate care with, or on behalf of,
(1) All treatment options may be discussed; and
(2) Other information, determined by the health care
professional to be in the best interests of the enrollee may be
(c) A health care professional may not be penalized for
discussing financial incentives and financial arrangements
between the health care professional and the managed care entity.
§33-42-8. Drugs and devices.
(a) Each managed care plan shall provide coverage for all
drugs and devices approved by the United States food and drug
administration, whether or not that drug or device has been
approved for the specific treatment or condition, so long as the
primary care practitioner or other medical specialist treating
the enrollee determines the drug or device is medically necessary
and appropriate for the enrollee's condition.
(b) Each managed care service plan shall establish and operate a drug utilization review program that includes the
(1) Retrospective review of prescription drugs furnished to
(2) Education of physicians, enrollees and pharmacists
regarding the appropriate use of prescription drugs.
(c) Each managed care plan shall provide for a drug
utilization review program with ongoing periodic examination of
data on outpatient prescription drugs to ensure quality
therapeutic outcomes for enrollees:
(1) The drug utilization review program's primary emphasis
shall be to enhance quality of care for enrollees by assuring
appropriate drug therapy;
(2) The drug utilization review program shall include the
(i) Clinically relevant criteria and standards for drug
(ii) Nonproprietary criteria and standards, developed and
revised through an open, professional consensus process; and
(iii) Interventions which focus on improving therapeutic
(3) The confidentiality of the relationship between
enrollees and health care professionals shall be protected at all times.
(d) The health care services plan shall provide an
educational outreach program as part of the drug utilization
(1) The outreach program shall be directed to enrollees,
pharmacists and other health care professionals; and
(2) The outreach program shall emphasize the appropriate use
of prescription drugs.
(e) Prospective review of drug therapy may only deny
services in cases of enrollee ineligibility, coverage limitations
or fraud; and
(f) The prescribing health care professional shall determine
the appropriate drug therapy for the enrollee; no substitutions
shall be made without the direct approval of the prescriber.
§33-42-9. Experimental treatments.
(a) A managed care plan which limits coverage for services
shall define the limitation and disclose the limits in any
agreement or certificate of coverage. This disclosure shall
(1) Who is authorized to make such a determination; and
(2) The criteria the plan uses to determine whether a
service is experimental.
(b) A managed care plan that denies coverage for an experimental treatment, procedure, drug or device for an enrollee
who has a terminal condition or illness shall provide the
enrollee with a denial letter within twenty working days of the
submitted request. The letter shall include:
(1) The name and title of the individual making the
(2) A statement setting forth the specific medical and
scientific reasons for denying coverage;
(3) A description of alternative treatment, services or
supplies covered by the plan, if any; and
(4) A copy of the plan's grievance and appeal procedure.
§33-42-10. Quality assurance program.
(a) The managed care plan shall develop comprehensive
quality assurance standards, adequate to identify, evaluate and
remedy problems relating to access, continuity and quality of
care. These standards shall include:
(1) An ongoing, written, internal quality assurance program;
(2) Specific written guidelines for quality of care studies
and monitoring, including attention to vulnerable populations;
(3) Performance and clinical outcomes-based criteria;
(4) A procedure for remedial action to correct quality
problems, including written procedures for taking appropriate
(5) A plan for data gathering and assessment; and
(6) A peer review process.
(b) Each managed care plan shall have a process for
selection of health care professionals who will be on the plan's
participating practitioner list, with written policies and
procedures for review and approval used by the plan:
(1) The plan shall establish minimum professional
(2) The plan shall demonstrate that it has consulted with
appropriately qualified health care professionals to establish
(3) The plan's process shall include verification of the
individual practitioner's license, history of suspension or
revocation and liability claims history; and
(4) Each managed care plan shall establish a formal,
written, ongoing, process for the reevaluation of all
participating physicians within a specified number of years after
the initial acceptance: Provided, That reevaluations shall
include updates of the previous review criteria and an assessment
of the performance pattern based on criteria including enrollee
clinical outcomes, number of complaints and malpractice actions.
(c) The plans shall not use a health care professional
beyond, or outside of, his or her legally authorized scope of practice.
§33-42-11. Data systems and confidentiality.
(a) The managed care plan shall provide information on a
plan's structure, decision making process, health care benefits
and exclusions, cost and cost-sharing requirements, list of
contracting providers and health care professionals as well as
grievance and appeal procedures to all potential enrollees, all
enrollees covered by the plan, and to the state oversight agency.
(b) The managed care plan shall collect and report annually
to the state oversight agency specified data including:
(1) Gross outpatient and hospital utilization data;
(2) Enrollee clinical outcome data;
(3) The number and types of enrollee grievances or
complaints during the year, the status of decisions, and the
average time required to reach a decision; and
(4) The number, amount and disposition of malpractice claims
resolved during the year by the managed care plan and any of its
participating health care professionals.
(c) All data, as specified in subsections (a) and (b) of
this section, shall be reported to the state oversight agency and
shall be available to the public on a timely basis.
(d) The managed care plan shall establish written policies
and procedures for the handling of medical records and enrollees communications to ensure enrollee confidentiality.
(e) The managed care plan shall ensure the confidentiality
of specified enrollee information, including, but not limited to,
prior medical history, medical record information and claims
information, except where disclosure of this information is
required by law.
(f) The managed care plan shall be prohibited from releasing
any individual patient record information, unless such release is
authorized in writing by the enrollee.
§33-42-12. Clinical decision making.
(a) The managed care plan shall appoint a medical director
who is a physician licensed to practice in this state. The
medical director is responsible for treatment policies,
protocols, quality assurance activities and utilization
management decisions of the plan.
(b) The managed care plan shall inform enrollees of the
financial arrangements between the plan and contracting
physicians and pharmacists, if those arrangements include
incentives or bonuses for restriction of services.
§33-42-13. Oversight authority.
(a) The insurance commissioner shall identify an agency
within state government, or shall contract with an outside
entity, to oversee managed care plans operating within the state.
(b) The state oversight agency is hereby authorized to
oversee managed care plans operating within this state.
(c) No managed care plan may operate in this state unless it
has been legally authorized by the state oversight agency.
(d) The state oversight agency shall perform audits on an
annual basis, to review enrollee clinical outcome data, enrollee
service data, operational and other financial data.
(e) Nothing in this article may preclude the state oversight
agency from investigating complaints, grievances or appeals on
behalf of enrollees or health care professionals.
(f) The state oversight agency shall develop:
(1) Standards for compliance of plans regarding mandated
(2) Legislative rules relating to types of penalties for
§33-42-14. Grievance procedures, reviews and appeals.
(a) The managed care plan shall provide written notification
to enrollees, in a language calculated to be understood by
enrollees, regarding the right to file a grievance. At a
minimum, notification shall be given:
(1) Prior to enrollment in the plan; and
(2) At the time care is denied or limited under the plan.
(b) At the time of a denial, the plan shall notify the enrollee of the right to file a grievance:
(1) The notice shall be written; and
(2) The notice shall include the reason for denial, the name
of the individual responsible for the decision, the criteria for
determination, and the enrollee's right to file a grievance.
(c) The grievance procedure shall include:
(1) Identification of the reviewing body and an explanation
of the process of review;
(2) An initial investigation and review;
(3) Notification within a reasonable amount of time of the
outcome of the grievance; and
(4) An appeal procedure.
(d) The managed care plan shall set reasonable time limits
for each part of the review process, but in no case may the
review extend beyond thirty days.
(e) The managed care plan shall provide for expedited review
for cases involving an imminent, emergent or serious threat to
the health of the enrollee:
(1) The plan shall immediately inform the enrollee of this
(2) The plan must provide the enrollee with a written
statement of the disposition or pending status of the grievance
within seventy-two hours of the commencement of the review process.
(f) The managed care plan shall report to the state
oversight agency the number of grievances and appeals received by
the plan within a specified time period including, if applicable,
the outcomes or current status of the grievances and/or appeals
as well as the average time taken to resolve both grievances and
NOTE: The purpose of this bill is to enact statutory
protection for consumers of managed health care plans.
This article is new; therefore, strike-throughs and
underscoring have been omitted.