Senate Bill No. 702


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[Originating in the Committee on Finance;

reported March 3, 1999.]

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A BILL to amend and reenact sections two, five, nine, twelve, thirteen and twenty-four, article sixteen, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said article by adding thereto three new sections, designated sections twelve-a, twelve-b and fifteen-a, all relating to the West Virginia public employee's insurance act; removing the design of the benefit plan from the purview of the finance board; phasing in a maximum premium cost for employers; providing criminal penalties for knowingly obtaining benefits or payments greater than those to which the individual is entitled; authorizing inspection of the premises, documents and records to determine compliance with billing practices; authorizing the director to negotiate and contract directly with health care providers; providing immunity for reporting fraudulent activities; prohibiting employees from using annual or sick leave which accrues after a specified date toward insurance coverage upon retirement; allowing the employee to use leave accrued prior to that date for extended insurance coverage; and permitting the employee to apply leave accrued after the specified date towards additional credited service under the retirement system, requiring approval of the director before any participating employer may offer to or contract for optional insurances; and limiting those retirees who are eligible for subsidized insurance.

Be it enacted by the Legislature of West Virginia:
That sections two, five, nine, twelve, thirteen and twenty- four, article sixteen, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that said article be further amended by adding thereto three new sections, designated sections twelve-a, twelve-b and fifteen-a, all to read as follows:
ARTICLE 16. WEST VIRGINIA PUBLIC EMPLOYEES INSURANCE ACT.
§5-16-2. Definitions.
The following words and phrases as used in this article, unless a different meaning is clearly indicated by the context, have the following meanings:
(1) "Advisory board" means the public employees insurance agency advisory board created by this article.
(2)(1) "Agency" means the public employees insurance agency created by this article.
(3)(2) "Director" means the director of the public employees insurance agency created by this article.
(4)(3) "Employee" means any person, including elected officers, who works regularly full time in the service of the state of West Virginia and, for the purpose of this article only, the term "employee" also means any person, including elected officers, who works regularly full time in the service of a county board of education; a county, city or town in the state; any separate corporation or instrumentality established by one or more counties, cities or towns, as permitted by law; any corporation or instrumentality supported in most part by counties, cities or towns; any public corporation charged by law with the performance of a governmental function and whose jurisdiction is coextensive with one or more counties, cities or towns; any comprehensive community mental health center or comprehensive mental retardation facility established, operated or licensed by the secretary of health and human resources pursuant to section one, article two-a, chapter twenty-seven of this code, and which is supported in part by state, county or municipal funds; any person who works regularly full time in the service of the university of West Virginia board of trustees or the board of directors of the state college system; and any person who works regularly full time in the service of a combined city-county health department created pursuant to article two, chapter sixteen of this code. On and after the first day of January, one thousand nine hundred ninety-four, and upon election by a county board of education to allow elected board members to participate in the public employees insurance program pursuant to this article, any person elected to a county board of education shall be deemed to be an "employee" during the term of office of the elected member: Provided, That the elected member shall pay the entire cost of the premium if he or she elects to be covered under this article. Any matters of doubt as to who is an employee within the meaning of this article shall be decided by the director.
On or after the first day of July, one thousand nine hundred ninety-seven, a person shall be considered an "employee" if that person meets the following criteria:
(i) Participates in a job-sharing arrangement as defined in section one, article one, chapter eighteen-a of this code;
(ii) Has been designated, in writing, by all other participants in that job-sharing arrangement as the "employee" for purposes of this section; and
(iii) Works at least one third of the time required for a full-time employee.
(5)(4) "Employer" means the state of West Virginia, its boards, agencies, commissions, departments, institutions or spending units; a county board of education; a county, city or town in the state; any separate corporation or instrumentality established by one or more counties, cities or towns, as permitted by law; any corporation or instrumentality supported in most part by counties, cities or towns; any public corporation charged by law with the performance of a governmental function and whose jurisdiction is coextensive with one or more counties, cities or towns; any comprehensive community mental health center or comprehensive mental retardation facility established, operated or licensed by the secretary of health and human resources pursuant to section one, article two-a, chapter twenty-seven of this code, and which is supported in part by state, county or municipal funds; and a combined city-county health department created pursuant to article two, chapter sixteen of this code. Any matters of doubt as to who is an "employer" within the meaning of this article shall be decided by the director. The term "employer" does not include within its meaning the national guard.
(6)(5) "Finance board" means the public employees insurance agency finance board created by this article.
(7)(6) "Plan" means the medical indemnity plan or a managed care plan option offered by the agency.
(8)(7) "Retired employee" means an employee of the state who retired after the twenty-ninth day of April, one thousand nine hundred seventy-one, and an employee of the university of West Virginia board of trustees or the board of directors of the state college system or a county board of education who retires on or after the twenty-first day of April, one thousand nine hundred seventy-two, and all additional eligible employees who retire on or after the effective date of this article, and meet the minimum eligibility requirements for their respective state retirement system and whose last employer is a participating employer: Provided, That for the purposes of this article, the employees who are not covered by a state retirement system shall, in the case of education employees, meet the minimum eligibility requirements of the state teachers retirement system, and in all other cases, meet the minimum eligibility requirements of the public employees retirement system.
§5-16-5. Purpose, powers and duties of the finance board; initial financial plan; financial plan for following year; and annual financial plans.
(a) The purpose of the finance board created by this article is to bring fiscal stability to the public employees insurance agency through development of an annual financial plan plans and long-range plans designed to meet the agency's estimated total financial requirements, taking into account all revenues projected to be made available to the agency, and apportioning necessary costs equitably among participating employers, employees and retired employees and providers of health care services.
(b) The finance board chairman shall retain the services of an impartial, professional actuary, with demonstrated experience in analysis of large group health insurance plans, to estimate the total financial requirements of the public employees insurance agency for each fiscal year and to review and render written professional opinions as to financial plans proposed by the finance board. The finance board actuary shall also employ the actuary to develop also assist in the development of alternative financing options and to perform such any other services as may be requested by the finance board or the director. All reasonable fees and expenses for actuarial services shall be paid by the public employees insurance agency. Any financial plan or modifications to a financial plan approved or proposed by the finance board pursuant to this section shall be submitted to and reviewed by the actuary, and may not be finally approved and submitted to the governor and to the Legislature without the actuary's written professional opinion that the plan may be reasonably expected to generate sufficient revenues to meet all estimated program and administrative costs of the agency, excluding including incurred but unreported claims, for the fiscal year for which the plan is proposed. The actuary's opinion on the initial plan required by subsection (d) of this section shall allow for a target of forty-five days of accounts payable to be carried over into the next fiscal year. The actuary's opinion on the financial plan for fiscal year one thousand nine hundred ninety-two shall allow for between thirty and forty-five days of accounts payable to be carried over into the next fiscal year. The actuary's opinion on the financial plan for any succeeding each fiscal year shall allow for no more than thirty days of accounts payable to be carried over into the next fiscal year. The actuary's opinion for any fiscal year shall not include a requirement for establishment of a reserve fund.
(c) All financial plans required by this section shall include the design of a benefit plan or plans. All financial plans required by this section shall establish:
(1) Maximum levels of reimbursement which the public employees insurance agency makes to categories of health care providers;
(2) Any necessary cost containment measures for implementation by the director;
(3) The levels of premium costs to participating employers: Provided, That for the fiscal year beginning on the first day of July, two thousand one, the premium cost for participating employers may not exceed ninety-one percent of the total premium cost: Provided, however, That for the fiscal year beginning on the first day of July, two thousand two, the premium cost for participating employers may not exceed ninety percent of the total premium cost: Provided further, That for the fiscal year beginning on the first day of July, two thousand three, the premium cost for participating employers may not exceed eighty-seven percent of the total premium cost: And provided further, That for the fiscal year beginning on the first day of July, two thousand four, the premium cost for participating employers may not exceed eighty-three percent of the total premium cost: And provided further, That for the fiscal year beginning on the first day of July, two thousand five, the premium cost for participating employers may not exceed eighty percent of the total premium cost: And provided further, That for each fiscal year beginning on or after the first day of July, two thousand six, the premium cost for participating employers shall be the lesser of: (A) Eighty percent of the total premium cost; or (B) the industry standard, as established by the finance board, for employer contributions in similar programs, and
(4) The types and levels of cost to participating employees and retired employees.
The financial plans may provide for different levels of costs based on the insureds' ability to pay. The finance board may establish different levels of costs to retired employees based upon length of employment with a participating employer, ability to pay, or other relevant factors. The financial plans may also include optional alternative benefit plans with alternative types and levels of cost. The finance board may develop policies which encourage the use of West Virginia health care providers.
In addition, the finance board may allocate a portion of the premium costs charged to participating employers to subsidize the cost of coverage for participating retired employees, on such terms as the finance board determines are equitable and financially responsible.
(d) Initial plan. -- The director shall convene the first meeting of the finance board no later than the fifteenth day of September, one thousand nine hundred ninety. For presentation by the director at the first meeting, the governor shall prepare an estimate of the total amount of general and special revenues which the state has or will have available to fund the public employees insurance agency and its programs for the fiscal year ending on the thirtieth day of June, one thousand nine hundred ninety-one.
Notwithstanding any provision of this article to the contrary, during any meeting authorized by subsection (h) of this section to review implementation of the initial financial plan in light of actual experience, the finance board, in its discretion, may elect to redesign the initial financial plan so that revenues generated will meet all incurred and projected program and administrative costs of the public employees insurance agency by the end of the fiscal year ending on the thirtieth day of June, one thousand nine hundred ninety-two, rather than by the thirtieth day of June, one thousand nine hundred ninety-one. Before implementing any such modifications, the finance board shall obtain a written professional opinion from its actuary stating that the modified plan may be reasonably expected to generate sufficient revenues to meet all estimated program and administrative costs of the public employees insurance agency for the remainder of fiscal year one thousand nine hundred ninety-one and for fiscal year one thousand nine hundred ninety-two, allowing for between thirty and forty-five days of accounts payable to be carried over into fiscal year one thousand nine hundred ninety-three. The finance board shall also afford interested and affected persons an opportunity to offer comment on the modified plan at a public meeting of the finance board. Regardless of whether or not the finance board modifies the initial financial plan as authorized by this subsection, the finance board shall prepare a financial plan for fiscal year one thousand nine hundred ninety-two in accordance with subsection (e) of this section.
The finance board shall prepare, no later than the tenth day of November, one thousand nine hundred ninety, a proposed financial plan designed to generate revenues sufficient to meet all program and administrative costs of the public employees insurance agency which have already been incurred but are unpaid, or which the actuary estimates will be incurred and paid during the remainder of fiscal year one thousand nine hundred ninety-one, excluding incurred but unreported claims. The finance board shall establish in the proposed financial plan a target of forty-five days of accounts payable which may be carried over into the next fiscal year.
The finance board shall request its actuary to review the proposed financial plan and to render a written professional opinion stating whether the plan may be reasonably expected to generate sufficient revenues to meet all estimated program and administrative costs of the public employees insurance agency for the fiscal year. The actuary's report shall explain the basis of his or her opinion. If the actuary concludes that the proposed financial plan will not generate sufficient revenues to meet all anticipated costs, then the finance board shall make necessary modifications to the proposed plan to ensure that all actuarially-determined financial requirements of the agency will be met.
Upon obtaining the actuary's opinion and making all necessary modifications to the proposed plan, the finance board shall conduct two or more public hearings to receive public comment on the proposed financial plan, shall review such comments, and shall finalize and approve the financial plan no later than the twentieth day of November, one thousand nine hundred ninety. Employees shall be notified of any changes in the types and levels of employee costs or benefits contained in the financial plan at least thirty days prior to the date of implementation of the financial plan.
The finance board shall submit to the governor and to the Legislature the final, approved financial plan no later than the first day of December, one thousand nine hundred ninety. The financial plan shall become effective and shall be implemented by the director on the first day of January, one thousand nine hundred ninety-one.
(e) Plan for fiscal year one thousand nine hundred ninety-two. -- No later than the first day of December, one thousand nine hundred ninety, the governor shall prepare and provide to the finance board an estimate of the total amount of general and special revenues which the state will have available to fund the public employees insurance agency and its programs for the fiscal year beginning the first day of July, one thousand nine hundred ninety-one. The finance board shall request its actuary to estimate the total financial requirements of the public employees insurance agency for the fiscal year.
The finance board shall prepare a proposed financial plan designed to generate revenues sufficient to meet all estimated program and administrative costs of the public employees insurance agency for the fiscal year. The proposed financial plan shall allow for between thirty and forty-five days of accounts payable to be carried over into the next fiscal year. Before final adoption of the proposed financial plan, the finance board shall request its actuary to review the plan and to render a written professional opinion stating whether the plan will generate sufficient revenues to meet all estimated program and administrative costs of the public employees insurance agency for the fiscal year. The actuary's report shall explain the basis of its opinion. If the actuary concludes that the proposed financial plan will not generate sufficient revenues to meet all anticipated costs, then the finance board shall make necessary modifications to the proposed plan to ensure that all actuarially-determined financial requirements of the agency will be met.
Upon obtaining the actuary's opinion, the finance board shall conduct one or more public hearings in each congressional district to receive public comment on the proposed financial plan, shall review such comments, and shall finalize and approve the financial plan.
The finance board shall submit to the governor and to the Legislature its final, approved financial plan for fiscal year one thousand nine hundred ninety-two, together with the actuary's final written opinion, no later than the first day of May, one thousand nine hundred ninety-one. The financial plan shall become effective and shall be implemented by the director on the first day of July, one thousand nine hundred ninety-one.
(f) Annual plans. (d) (1) The finance board shall prepare in the manner provided in subsection (e) of this section, an annual financial plan for fiscal year one thousand nine hundred ninety-three and each fiscal year thereafter during which the finance board remains in existence. The finance board chairman shall request the actuary to estimate the total financial requirements of the public employees insurance agency for the fiscal year.
(2) The finance board shall prepare a proposed financial plan designed to generate revenues sufficient to meet all estimated program and administrative costs of the public employees insurance agency for the fiscal year. The proposed financial plan shall allow for no more than thirty days of accounts payable to be carried over into the next fiscal year. Before final adoption of the proposed financial plan, the finance board shall request the actuary to review the plan and to render a written professional opinion stating whether the plan will generate sufficient revenues to meet all estimated program and administrative costs of the public employees insurance agency for the fiscal year. The actuary's report shall explain the basis of its opinion. If the actuary concludes that the proposed financial plan will not generate sufficient revenues to meet all anticipated costs, then the finance board shall make necessary modifications to the proposed plan to ensure that all actuarially-determined financial requirements of the agency will be met.
(3) Upon obtaining the actuary's opinion, the finance board shall conduct one or more public hearings in each congressional district to receive public comment on the proposed financial plan, shall review such comments, and shall finalize and approve the financial plan.
(4) Any such financial plan shall be designed to allow thirty days or less of accounts payable to be carried over into the next fiscal year. For each such fiscal year, the governor shall provide his or her estimate of total revenues to the finance board no later than the first fifteenth day of July October of the preceding fiscal year. The finance board shall submit its final, approved financial plan, after obtaining the necessary actuary's opinion and conducting one or more public hearings in each congressional district, to the governor and to the Legislature no later than the first day of January preceding the fiscal year. The financial plan for a fiscal year shall become becomes effective and shall be implemented by the director on the first day of July of such the fiscal year. In addition to each final, approved financial plan required under this section, the finance board shall also simultaneously submit financial statements based on generally accepted accounting practices (GAAP) and the final, approved plan restated on an accrual basis of accounting, which shall include allowances for incurred but not reported claims: Provided, That the financial statements and the accrual-based financial plan restatement shall not affect the approved financial plan.
(g) (e) The provisions of chapter twenty-nine-a of this code shall not apply to the preparation, approval and implementation of the financial plans required by this section.
(f) Beginning on the first day of January, two thousand, and every year thereafter, the finance board shall submit to the governor and the Legislature, a prospective financial plan, for no less than five years, for the programs provided for in this article. The board shall consider the trends for the program and the industry; the medical rate of inflation; utilization patterns; cost of services; and, state specific information such as average age of employee population, active to retiree ratios, the service delivery system and health status of the population.
(h) (g) The finance board shall meet on at least a quarterly basis to review implementation of its current financial plan in light of the actual experience of the public employees insurance agency. The board shall review actual costs incurred, any revised cost estimates provided by the actuary, expenditures, and any other factors affecting the fiscal stability of the plan, and may make any additional modifications to the plan necessary to ensure that the total financial requirements of the agency for the current fiscal year are met. The financial board may not increase the types and levels of cost to employees during its quarterly review except in the event of a true emergency.
(i) (h) For any fiscal year in which legislative appropriations differ from the governor's estimate of general and special revenues available to the agency, the finance board shall, within thirty days after passage of the budget bill, make any modifications to the plan necessary to ensure that the total financial requirements of the agency for the current fiscal year are met.
(j) The types and levels of costs to employers, employees and retired employees participating in public employees insurance agency group insurance plans which are currently in effect on the effective date of this article are hereby authorized. The types and levels of costs to employees participating in public employees insurance agency group insurance plans which are currently in effect on the effective date of this article shall remain in effect unless and until changed or authorized to be changed by the finance board in a financial plan prepared and approved in accordance with this section.
(i) Upon a majority vote, the finance board may change the benefit plan design presented by the director.
§5-16-9. Authorization to execute contracts for group hospital and surgical insurance, group major medical insurance, group prescription drug insurance, group life and accidental death insurance and other accidental death insurance; mandated benefits; limitations; awarding of contracts; reinsurance; certificates for covered employees; discontinuance of contracts.
(a) The director is hereby given exclusive authorization to execute such contract or contracts as are necessary to carry out the provisions of this article and to provide the plan or plans of group hospital and surgical insurance coverage, group major medical insurance coverage, group prescription drug insurance coverage and group life and accidental death insurance coverage selected in accordance with the provisions of this article, such contract or contracts to be executed with one or more agencies, corporations, insurance companies or service organizations licensed to sell group hospital and surgical insurance, group major medical insurance, group prescription drug insurance and group life and accidental death insurance in this state.
(b) The group hospital or surgical insurance coverage and group major medical insurance coverage herein provided for shall include coverages and benefits for X ray and laboratory services in connection with mammograms and pap smears when performed for cancer screening or diagnostic services and annual checkups for prostate cancer in men age fifty and over. Such benefits shall include, but not be limited to, the following:
(1) Baseline or other recommended mammograms for women age thirty-five to thirty-nine, inclusive;
(2) Mammograms recommended or required for women age forty to forty-nine, inclusive, every two years or as needed;
(3) A mammogram every year for women age fifty and over;
(4) A pap smear annually or more frequently based on the woman's physician's recommendation for women age eighteen and over; and
(5) A checkup for prostate cancer annually for men age fifty or over.
(c) The group life and accidental death insurance herein provided for shall be in the amount of ten thousand dollars for every employee. The amount of the group life and accidental death insurance to which an employee would otherwise be entitled shall be reduced to five thousand dollars upon such employee attaining age sixty-five.
(d) All of the insurance coverage to be provided for under this article may be included in one or more similar contracts issued by the same or different carriers.
(e) The provisions of article three, chapter five-a of this code, relating to the division of purchases of the department of finance and administration, shall not apply to any contracts for any insurance coverage or professional services authorized to be executed under the provisions of this article. Before entering into any contract for any insurance coverage, as herein authorized, said director shall invite competent bids from all qualified and licensed insurance companies or carriers, who may wish to offer plans for the insurance coverage desired: Provided, That the director may in his or her discretion negotiate and contract with health care providers directly in order to secure competitive premiums. The director shall deal directly with insurers or health care providers in presenting specifications and receiving quotations for bid purposes. No commission or finder's fee, or any combination thereof, shall be paid to any individual or agent; but this shall not preclude an underwriting insurance company or companies, at their own expense, from appointing a licensed resident agent, within this state, to service the companies' contracts awarded under the provisions of this article. Commissions reasonably related to actual service rendered for such agent or agents may be paid by the underwriting company or companies: Provided, however, That in no event shall payment be made to any agent or agents when no actual services are rendered or performed. The director shall award such contract or contracts on a competitive basis. In awarding the contract or contracts the director shall take into account the experience of the offering agency, corporation, insurance company or service organization in the group hospital and surgical insurance field, group major medical insurance field, group prescription drug field and group life and accidental death insurance field, and its facilities for the handling of claims. In evaluating these factors, the director may employ the services of impartial, professional insurance analysts or actuaries or both. Any contract executed by the director with a selected carrier shall be a contract to govern all eligible employees subject to the provisions of this article. Nothing contained in this article shall prohibit any insurance carrier from soliciting employees covered hereunder to purchase additional hospital and surgical, major medical or life and accidental death insurance coverage.
(f) The director may authorize the carrier with whom a primary contract is executed to reinsure portions of such contract with other carriers which elect to be a reinsurer and who are legally qualified to enter into a reinsurance agreement under the laws of this state.
(g) Each employee who is covered under any such contract or contracts shall receive a statement of benefits to which such employee, his or her spouse and his or her dependents are entitled thereunder, setting forth such information as to whom such benefits shall be payable, to whom claims shall be submitted, and a summary of the provisions of any such contract or contracts as they affect the employee, his or her spouse and his or her dependents.
(h) The director may at the end of any contract period discontinue any contract or contracts it has executed with any carrier and replace the same with a contract or contracts with any other carrier or carriers meeting the requirements of this article
(i) The director shall provide by contract or contracts entered into under the provisions of this article the cost for coverage of children's immunization services from birth through age sixteen years to provide immunization against the following illnesses: Diphtheria, polio, mumps, measles, rubella, tetanus, hepatitis-b, haemophilus influenzae-b and whooping cough. Additional immunizations may be required by the commissioner of the bureau of public health for public health purposes. Any contract entered into to cover these services shall require that all costs associated with immunization, including the cost of the vaccine, if incurred by the health care provider, and all costs of vaccine administration, be exempt from any deductible, per visit charge and/or copayment provisions which may be in force in these policies or contracts. This section does not require that other health care services provided at the time of immunization be exempt from any deductible and/or copayment provisions.
§5-16-12. Misrepresentation by employer, employee or provider; penalty.
(a) Any person who knowingly secures or attempts to secure benefits payable under this article or anything of value to which the person is not entitled, or who knowingly secures or attempts to secure greater benefits than those to which the person is entitled, by willfully misrepresenting the presence or extent of benefits to which the person is entitled under a collateral insurance source, or by willfully misrepresenting any material fact relating to any other information requested by the director or by willfully overcharging for services provided, or by willfully misrepresenting the diagnosis or nature of the service provided, may be found to be overpaid and shall be civilly liable for any overpayment. In addition to the civil remedy provided herein, the director shall withhold payment of any benefits or other payment due to that person until any overpayment has been recovered or may directly set off, after holding internal administrative proceedings to assure due process, any such overcharges or improperly derived payment against benefits or other payment due such person hereunder. Nothing in this section shall be construed to limit any other remedy or civil or criminal penalty provided by law.
(b) Any employer, employee or provider who knowingly secures or attempts to secure benefits payable under this article or any other thing of value to which the person is not entitled, or knowingly attempts to secure greater benefits than those to which the person is entitled, by willfully misrepresenting, or aiding in the misrepresentation of, any material fact relating to employment, diagnosis or services rendered is guilty of a felony and upon conviction thereof, shall be fined not more than five thousand dollars, imprisoned for not longer than two years, or both.
§5-16-12a. Inspections; violations and penalties.
(a) The director, designated representatives of the director, and law-enforcement officers of the state, acting at the request of the director, are authorized to inspect the place of business and pertinent records, documents and papers of any person or provider submitting a request for payment of claims under the provisions of this article to the extent deemed reasonably necessary to determine compliance with proper and lawful billing practices. For the purpose of making an inspection, the director, designated representative and law-enforcement officers are authorized at reasonable times, to enter the place of business for the sole purpose of reviewing and auditing pertinent records, documents and papers related to the payment of claims.
(b) Any person who violates any provision of this article is guilty of a misdemeanor and is subject to a fine of not less than one hundred dollars but not more than five hundred dollars, or imprisonment for a period of not less than twenty-four hours but not more than fifteen days, or both.
§5-16-12b. Privileges and immunity.
(a) Any person who makes a report or furnishes information, written or oral, concerning suspected, anticipated or fraudulent activity to secure benefits payable under this article, or to secure greater benefits than those to which the person or provider is entitled, is entitled to those privileges and immunities existing under common or statutory law, as well as the immunity established herein.
(b) In the absence of fraud, malice or bad faith, no person or agent, employee or designee of that person shall be subject to civil liability of any nature arising out of that person's provision of information related to suspected, anticipated or fraudulent activity in the securing of benefits payable or securing greater benefits than those to which the person or provider is entitled.
(c) Nothing in this section shall be construed to limit, abrogate or modify existing statutes or case law applicable to the duties or liabilities of persons acting in a manner that is itself fraudulent, with malice or in bad faith.
§5-16-13. Payment of costs by employer and employee; coverage for employee's spouse and dependents generally; short term continuance of coverage for involuntary employee termination; extended insurance coverage for retired employees with accrued annual leave and sick leave; increased retirement benefits for retired employees with accrued annual and sick leave; additional eligible retired employees; option for health insurance coverage without life insurance coverage made available to retirees; health insurance for surviving dependents of deceased employees.
(a) The director is hereby authorized to may provide under any contract or contracts entered into under the provisions of this article that the costs of any such group hospital and surgical insurance, group major medical insurance, group prescription drug insurance, group life and accidental death insurance benefit plan or plans may be paid by the employer and employee. In addition, each employee shall be is entitled to have his or her spouse and dependents, as defined by the rules of the public employees insurance agency, included in any group hospital and surgical insurance, group major medical insurance or group prescription drug insurance coverage: Provided, That such the spouse and dependent coverage shall be limited to excess or secondary coverage for each spouse and dependent who has primary coverage from any other source. For purposes of this section, the term "primary coverage" means individual or group hospital and surgical insurance coverage or individual or group major medical insurance coverage or group prescription drug coverage in which the spouse or dependent is the named insured or certificate holder. The director may require proof regarding spouse and dependent primary coverage and shall adopt rules governing the nature, discontinuance and resumption of any employee's coverage for his or her spouse and dependents.
(b) Should If a participating employee be is terminated from employment involuntarily or in through a reduction of work force, the employee's insurance coverage provided under this article shall continue for a period of three months at no additional cost to the employee. An employee discharged for misconduct shall is not be eligible for extended benefits under this section. Coverage may be extended up to the maximum period of three months, while administrative remedies contesting the charge of misconduct are pursued. If the discharge for misconduct be is upheld, the full cost of the extended coverage shall be reimbursed by the employee. If the employee is again employed or recalled to active employment within twelve months of his or her prior termination, he or she shall not be considered a new enrollee and shall not be required to again contribute his or her share of the premium cost, if he or she had already fully contributed such that share during the prior period of employment.
(c) Except as otherwise provided in subsection (f) of this section for higher education full-time faculty employed on an annual contract basis other than for twelve months, when a participating employee, who has elected to participate in the plan before the first day of July, one thousand nine hundred eighty-eight, is compelled or required by law to retire before reaching the age of sixty-five, or when a participating employee voluntarily retires as provided by law, that employee's accrued annual leave and sick leave, if any, shall be credited toward an extension of the insurance coverage provided by this article, according to the following formulae: Such The insurance coverage for a retired employee shall continue one additional month for every two days of annual leave or sick leave, or both, which the employee had accrued as of the effective date of his or her retirement. For a retired employee, his or her spouse and dependents, such the insurance coverage shall continue one additional month for every three days of annual leave or sick leave, or both, which the employee had accrued as of the effective date of his or her retirement: Provided, That the director may not credit any annual or sick leave for any employee hired on or after the first day of July, one thousand nine hundred ninety-nine, toward an extension of the participating employee's insurance coverage provided by this article: Provided, however, That the employee hired on or after the first day of July, one thousand nine hundred ninety-nine may elect to apply any leave accrued to acquire additional credited service in the public employees retirement system under the provisions of subsection (e) of this section.
(d) (1) Notwithstanding the preceding provisions of subsection (c) of this section, except as otherwise provided in subsection (f) of this section for higher education full-time faculty employed on an annual contract basis other than for twelve months, when a participating employee who elects to participate in the plan on and after the first day of July, one thousand nine hundred eighty-eight, is compelled or required by law to retire before reaching the age of sixty-five, or when such a participating employee voluntarily retires as provided by law, that employee's annual leave or sick leave, if any, shall be credited toward one half of the premium cost of the insurance provided by this article, for periods and scope of coverage determined according to the following formulae: (1) One additional month of single retiree coverage for every two days of annual leave or sick leave, or both, which the employee had accrued as of the effective date of his or her retirement; or (2) one additional month of coverage for a retiree, his or her spouse and dependents for every three days of annual leave or sick leave, or both, which the employee had accrued as of the effective date of his or her retirement. The remaining premium cost shall be borne by such the retired employee if he or she elects such coverage: Provided, That the director may not credit any annual or sick leave for any employee hired on or after the first day of July, one thousand nine hundred ninety-nine, toward an extension of the participating employee's insurance coverage provided by this article: Provided, however, That the employee hired on or after the first day of July, one thousand nine hundred ninety-nine may elect to apply any leave accrued to acquire additional credited service in the public employees retirement system under the provisions of subsection (e) of this section.
(2) For purposes of this subsection, an employee who has been a participant under spouse or dependent coverage and who reenters the plan within twelve months after termination of his or her prior coverage shall be considered to have elected to participate in the plan as of the date of commencement of the prior coverage. For purposes of this subsection, an employee shall not be considered a new employee after returning from extended authorized leave on or after the first day of July, one thousand nine hundred eighty-eight.
(e) In the alternative to the extension of insurance coverage through premium payment provided in the two preceding subsections (c) and (d) of this section, the participating employee's accrued annual leave and sick leave may be applied, on the basis of two days retirement service credit for each one day of accrued annual and sick leave, toward an increase in the employee's retirement benefits with such the days constituting additional credited service in computation of such the benefits under any state retirement system. However, such the credited service shall not be used in meeting initial eligibility for retirement criteria, but only as additional service credited in excess thereof of the required service.
(f) When a participating employee, who is a higher education full-time faculty member employed on an annual contract basis other than for twelve months, is compelled or required by law to retire before reaching the age of sixty-five, or when such a the participating employee voluntarily retires as provided by law, that employee's insurance coverage, as provided by this article, shall be extended according to the following formulae: Such The insurance coverage for a retired higher education full-time faculty member, formerly employed on an annual contract basis other than for twelve months, shall continue beyond the effective date of his or her retirement one additional year for each three and one-third years of teaching service, as determined by uniform guidelines established by the university of West Virginia board of trustees and the board of directors of the state college system, for individual coverage, or one additional year for each five years of teaching service for "family" coverage: Provided, That the director may not credit any annual or sick leave for employees hired after the first day of July, one thousand nine hundred ninety-nine, toward an extension of the employee's insurance coverage provided by this article: Provided, however, That the employee hired on or after the first day of July, one thousand nine hundred ninety-nine may elect to apply any leave accrued to acquire additional credited service in the public employees retirement system under the provisions of subsection (e) of this section.
(g) Any employee who retired prior to the twenty-first day of April, one thousand nine hundred seventy-two, and who also otherwise meets the conditions of the "retired employee" definition in section two of this article, shall be is eligible for insurance coverage under the same terms and provisions of this article. The retired employee's premium contribution for any such the coverage shall be established by the finance board.
(h) All retirees under the provisions of this article, including those defined in section two of this article; those retiring prior to the twenty-first day of April, one thousand nine hundred seventy-two; and those hereafter retiring shall be from a participating employer are eligible for and permitted to obtain health insurance coverage. The retired employee's premium contribution for any such the coverage shall be established by the finance board.
(i) A surviving spouse and dependents of a deceased employee, who was either an active or retired employee just immediately prior to such decease, shall be his or her death are entitled to be included in any group insurance coverage provided under this article, and such the spouse and dependents shall bear the premium cost of such the insurance coverage. The finance board shall establish the premium cost of any such the coverage.
(j) In construing the provisions of this section or any other provisions of this code, the Legislature declares that it is not now nor has it ever been the Legislature's intent that elected public officials be provided any sick leave, annual leave or personal leave, and the enactment of this section is based upon the fact and assumption that no statutory or inherent authority exists extending sick leave, annual leave or personal leave to elected public officials and the very nature of such those positions preclude the arising or accumulation of such sick leave, annual leave or personal leave, so as to be thereafter usable as premium paying credits for which such the officials may claim extended insurance benefits.
(k) An employee, eligible for coverage under the provisions of this article who has twenty years of service with any agency or entity participating in the public employees insurance program or who has been covered by the public employees insurance program for twenty years may, upon leaving employment with a participating agency or entity, continue to be covered by the program if the employee pays one hundred and five percent of the cost of retiree coverage: Provided, That the employee shall elect to continue coverage under this subsection within two years of the date the employment with a participating agency or entity is terminated.
§5-16-15a. Prior notification and opportunity to comment for optional insurance.

Any participating employer shall, prior to offering to its employees any of the optional insurance described in section fifteen of this article which is not made available by the director, notify the director and allow him or her to comment on the optional insurance to be offered. The employer may contract for such optional insurance only with a solvent insurance company that is licensed by the insurance commissioner to transact insurance in this state and may place the insurance only through agents duly licensed by the insurance commissioner.
§5-16-24. Rules for administration of article; eligibility of certain retired employees and dependents of deceased members for coverage; employees on medical leave of absence entitled to coverage; life insurance.

The director shall promulgate such any necessary rules and regulations as may be required for the effective administration of the provisions of this article. Except as specifically provided in subsection (e), section four of this article, all rules and regulations of the public employees insurance agency and all hearings held by the public employees insurance agency shall be are exempt from the provisions of chapter twenty-nine-a of this code. Any rules and regulations now in existence promulgated by the public employees insurance board or director shall remain in full force and effect until they are amended or replaced by the director.
Such regulations The rules shall provide that any employee of the state who has been compelled or required by law to retire before reaching the age of sixty-five years shall be is eligible to participate in the public employees' health insurance program at the premium contribution established by the finance board after any extended coverage to which he or she, his or her spouse and dependents may be entitled by virtue of his or her accrued annual leave or sick leave, pursuant to the provisions of section thirteen of this article, has expired. Any employee who voluntarily retires, as provided by law, shall be is eligible to participate in the public employees' health insurance program at the premium contribution established by the finance board after any extended coverage to which he or she, his or her spouse and dependents may be entitled by virtue of his or her accrued annual leave or sick leave, pursuant to the provisions of section thirteen of this article, has expired: Provided, That the employee's last employer is a participating employer. The dependents of any deceased retired employee shall be are entitled to continue their participation and coverage upon payment of the premium contribution established by the finance board. In establishing the cost of health insurance coverage for retired employees and their spouses and dependents, the finance board, in its discretion, may cause the claims experience of such the retired employees and their spouses and dependents to be rated separately from that of active employees and their spouses and dependents, or may cause the claims experience of retired and active employees, and their spouses and dependents, to be rated together.
Any employee who is on a medical leave of absence, approved by his or her employer, shall, is subject to the following provisions of this paragraph, be is entitled to continue his or her coverage until he or she returns to his or her employment, and such the employee and employer shall continue to pay their proportionate share of premium costs as provided by this article: Provided, That the employer shall be is obligated to pay its proportionate share of the premium cost only for a period of one year: Provided, however, That during the period of such the leave of absence, the employee shall, at least once each month, submit to the employer the statement of a qualified physician certifying that the employee is unable to return to work.
Any retiree retiring heretofore or hereafter, shall be is eligible to participate in the public employees' life insurance program, including the optional life insurance coverage as already available to active employees under this article, at his or her own expense for the cost of coverage, based upon actuarial experience; and the director shall prepare, by rule and regulation, for such that participation and coverages under declining term insurance and optional additional coverage for such the retirees.
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(NOTE: The purpose of this bill is to clarify the duties of the Finance Board and the Director. It also phases in a maximum premium percentage of 80% for employers over a five-year period, which may be lowered in 2006, based on industry standards for similar programs. It also provides that employees hired on or after July 1, 1999 may not use sick or annual leave to extend insurance coverage upon retirement, but allows use of accrued leave to be used to increase credited service under the Public Employees Retirement System. Additionally, this bill provides that to be eligible for subsidized insurance upon retirement, the employee's last employer had to be a participating employer. The bill provides penalties for individuals receiving benefits or payments to which they are not entitled, penalties for fraudulent activity and immunity from civil liability concerning reporting of those activities. It also authorizes the PEIA director to negotiate and contract directly with health care providers and insurers.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§5-16-12a, 12b and 15a are new; therefore, underlining and strike-throughs have been omitted.)