Senate Bill No. 162

(By Senators Bailey, Minard, Bowman, Kessler and Rowe)

____________

[Introduced January 10, 2002; referred to the Committee

on Banking and Insurance.]

____________
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 twenty-five-f, relating to patient protection; providing that the article's provisions are applicable to all who are involved with any form of managed care organization, including preferred provider organizations, health maintenance organizations and any type of organizational practice of medicine which does not include medical partnerships or solo practice; requiring administrators of health benefit plans to annually file certain information with the insurance commissioner; providing disclosure requirements related to information that is required to be filed; requiring health care carriers to maintain networks of providers of health care sufficient to ensure available services for covered individuals; specifying general responsibilities of health care carriers; requiring health care carriers to adopt standards for the selection of service providers; providing for a system in which to address and resolve complaints by a review board; providing notice requirements relating to the handling of complaints; prohibiting the limiting of liability of a health care carrier for actions of a physician; and requiring the offering of a point-of-service plan designed to receive covered services from out-of-network health care providers without first having to obtain a referral or prior authorization from the health care carrier.

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 twenty-five-f, to read as follows:
ARTICLE 25F. PATIENT PROTECTION.
§33-25F-1. Managed care reporting and disclosure requirements.
(a) The administrator of every health benefit plan operating under the authority of the commissioner of insurance shall annually, on or before the first day of each year, file in the office of the commissioner, on a form prescribed by the commissioner, the following information, to the extent applicable:
(1) The number of and reasons for complaints received from plan participants regarding medical treatment;
(2) The number of participants who terminated coverage under the plan for any reason;
(3) The number of provider contracts that were terminated in the preceding year and the reasons for termination. This information shall include the number of providers leaving the plan and the number of new providers;
(4) Utilization data, including statistics relating to the utilization, quality, availability and accessibility of services, as defined by the commissioner; and
(5) Aggregate financial compensation data, including the percentage of providers paid under a capitation arrangement, discounted fee-for-service or salary, the services included in the capitation payment, and the range of compensation paid by withhold or incentive payments.
(b) The name, or group or institutional name, of an individual provider may not be disclosed pursuant to this section. No civil liability arises from compliance with the provisions of this section, provided that the acts or omissions are made in good faith and do not constitute gross negligence, willful or wanton misconduct or intentional wrongdoing.
(c) Each health benefit plan shall provide the following applicable information to plan participants and prospective participants upon request:
(1) The evidence of coverage, subscriber contract, health insurance policy or the contract and benefit summary of any other type of health benefit plan;
(2) An explanation for the utilization review criteria and treatment protocol under which treatments are provided for conditions specified by the prospective participant. This explanation shall be in writing if so requested;
(3) In the event a recommended treatment is denied, written reasons for the denial and an explanation of the utilization review criteria or treatment protocol upon which the denial was based;
(4) The plan's restrictive formularies or prior approval requirements for obtaining prescription drugs, whether a particular drug or therapeutic class of drugs is excluded from its formulary, and the circumstances under which a nonformulary drug may be covered; and
(5) The plan's procedures and medically based criteria for determining whether a specified procedure, test or treatment is experimental.
(d) For the purposes of this article, "health benefit plan" or "plan" means: (1) Health maintenance organization subscriber contracts; and (2) insurance company or hospital and medical service corporation preferred provider benefit plans in which utilization review or quality management programs are used to manage the provision of covered health care services, and in which enrollees are given incentives through benefit differentials to limit the receipt of covered health care services to those provided by participating providers.
(e) All health maintenance organizations shall provide emergency services on a twenty-four-hour a day basis without prior authorization. Additionally, if, in the event of an emergency, it is not feasible because of time or geographic constraints, or if the participant is out of the area of the health maintenance organization, then an out-of-network provider may be used without prior authorization. An "emergency," for the purposes of this article, means a situation involving health that an ordinary person would view as an emergency. This does not include mild colds, routine aches and pains not associated with acute trauma.
(f) Health maintenance organizations shall provide annually pap smears, low-density radiation mammograms, routine screening tests for prostate cancer and a routine chest X ray. Additionally, midwife, child immunization services and rehabilitative services, shall be covered and available for provision in appropriate medical situations.
(g) All health maintenance organizations shall provide psychiatric and mental health care coverage which includes, on an annual basis, if needed, not less than one evaluation and twelve sessions of treatment.
§33-25F-2. Network adequacy; standards; access plan required.
(a) A health-care carrier offering a managed care plan in this state shall maintain a network that is sufficient in numbers and types of providers to ensure that all services to covered persons are accessible without unreasonable delay. Sufficiency in number and type of provider is determined in accordance with the requirements of this section. Covered persons shall have access to emergency care twenty-four-hours a day, seven days a week. A health-care carrier providing a managed care plan shall use reasonable criteria to determine sufficiency. The criteria may include, but is not limited to:
(1) A ratio of specialty care providers to covered persons;
(2) A ratio of primary care providers to covered persons;
(3) Geographic accessibility;
(4) Waiting times for appointments with participating providers; and
(5) Hours of operation.
(b) The volume of technological and specialty services available to serve the needs of covered persons requiring technologically advanced or specialty care shall be maintained at a level sufficient to provide accessibility to all persons covered under the particular plan.
(c) Whenever a health-care carrier has an insufficient number or type of participating providers to provide a covered benefit, the health-care carrier shall ensure that the covered person obtains the covered benefit at no greater cost to the covered person than if the covered benefit were obtained from participating providers or, shall otherwise make arrangements acceptable to the department of health and human resources, in consultation with the commissioner.
(d) The health-care carrier shall establish and maintain adequate provider networks to ensure reasonable proximity of participating providers to the businesses or personal residences of covered persons. In determining whether a health-care carrier has complied with this requirement, consideration shall be given to the relative availability of health care providers in the service under consideration.
(e) A health-care carrier shall monitor, on an ongoing basis, the ability, clinical capacity, financial capacity and legal authority of its providers to furnish all covered benefits to covered persons. An access plan for each managed care plan offered in this state shall describe or contain at least the following:
(1) A listing of the names and specialties of the health-care carrier's participating providers;
(2) The health-care carrier's procedures for making referrals within and outside its network;
(3) The health-care carrier's process for monitoring and ensuring, on an ongoing basis, the sufficiency of the network to meet the health-care needs of populations that enroll in the managed care plan;
(4) The health-care carrier's efforts to address the needs of covered persons with limited English proficiency or, with diverse cultural and ethnic backgrounds, or with physical and mental disabilities;
(5) The health-care carrier's methods for assessing the health-care needs of covered persons and their satisfaction with services;
(6) The health-care carrier's method of informing covered persons of the plan's services and features, including, but not limited to, the plan's grievance procedures, its procedures utilized for choosing and changing providers, and its procedures for providing and approving emergency and specialty care;
(7) The health-care carrier's system for ensuring the coordination and continuity of care for covered persons referred to specialty physicians and for covered persons using ancillary services, including social services and other community resources, and for ensuring appropriate discharge planning;
(8) The health-care carrier's process for enabling covered persons to change primary care professionals;
(9) The health-care carrier's proposed plan for providing continuity of care in the event of contract termination between the health-care carrier and a participating provider or in the event of the health-care carrier's insolvency or other inability to continue operations. The description shall explain how covered persons will be notified of the contract termination or the health-care carrier's insolvency or other cessation of operations and how covered services are intended to be transferred to other providers in a timely manner; and
(10) Any other information required by the commissioner to determine compliance with existing rules.
§33-25F-3. Health-care carriers, general responsibilities.
(a) A health-care carrier offering a managed care plan shall notify, in writing, prospective participating providers of the participating providers' responsibilities, concerning the health-care carrier's administrative policies and programs, including, but not limited to, payment terms, utilization reviews, the quality assurance programs, credentialing, grievance procedures, data reporting requirements, confidentiality requirements and applicable federal or state requirements.
(b) A health-care carrier may not offer an inducement under a managed care plan to provide less than medically necessary services to a covered person.
(c) A health-care carrier may not prohibit a participating provider from discussing a treatment option with a covered person or from advocating on behalf of a covered person within the utilization review or grievance processes established by the health-care carrier or a person contracting with the health-care carrier.
(d) A health-care carrier shall require a participating provider to make health records available to appropriate state and federal authorities, in accordance with the applicable state and federal laws related to the confidentiality of medical or health records, when the authorities are involved in assessing the quality of care or investigating a grievance or complaint of a covered person.
(e) A health-care carrier and participating provider shall provide at least sixty days' written notice to each other before terminating the contract between them without cause. The health-care carrier shall make a good faith effort to provide written notice of a termination, within fifteen working days of receipt or issuance of a notice of termination from or to a participating provider, to all covered persons who are patients seen on a regular basis by the participating provider whose contract is terminating, irrespective of whether the termination is for cause or without cause. If a contract termination involves a primary care professional, all covered persons who are patients of that primary care professional must be notified.
(f) A health-care carrier shall ensure that a participating provider furnishes covered benefits to all covered persons without regard to the covered person's enrollment in the plan as a private purchaser or as a participant in a publicly financed program of health-care services. This requirement does not apply to circumstances in which the participating provider should not render services because of the participating provider's lack of training, experience, or skill or because of restriction on the participating provider's license.
(g) A health-care carrier shall notify the participating providers of their obligation, if any, to collect applicable coinsurance, copayments or deductibles from covered persons under the evidence of coverage or of the participating providers' obligations, if any, to notify covered persons of the covered persons' personal financial obligations for noncovered benefits.
(h) A health-care carrier may not penalize a participating provider because the participating provider in good faith reports to the state or federal authorities an act or practice by the health-care carrier that may adversely affect patient health or welfare.
(i) A health-care carrier shall establish a mechanism by which a participating provider may determine in a timely manner whether or not a person is covered by the health-care carrier.
(j) A health-care carrier shall establish procedures for resolution of administrative, payment or other disputes between the health-care carrier and participating providers.
(k) A contract between a health-care carrier and a participating provider may not contain definitions or other provisions that conflict with the definitions or provisions contained in the managed care plan. A contract between a health-care carrier and a participating provider shall set forth all of the responsibilities and obligations of the provider either in the contract or documents referenced in the contract. A health-care carrier shall make its best effort to furnish copies of any reference documents, if required by a participating provider, prior to execution of the contract.
§33-25F-4. Selection of providers; professional credentials standards.
(a) A health-care carrier shall adopt standards for selecting participating providers who are primary care professionals and for each health-care professional specialty within the health care carrier's network. The health-care carrier shall use the standards to select health-care professionals, the health-care carrier's intermediaries, and any provider network with which the health-care carrier contracts. A health-care carrier may not adopt selection criteria that allows the health-care carrier to:
(1) Avoid high-risk populations by excluding a provider because the provider is located in a geographic area that contains populations presenting a risk of higher than average claims, losses or use of health-care services; or
(2) Exclude a provider because the provider treats or specializes in treating populations presenting a risk of higher than average claims, losses or use of health-care services.
(b) A health-care carrier may use criteria established in accordance with the provisions of this section to select health-care professionals allowed to participate in the health-care carrier's managed care plan. A health-care carrier shall make its selection standards for participating providers available for review by the department and by each health-care professional who is subject to the selection standards.
(c) (1) A system for resolving complaints shall include, without limitation, an initial investigation, a review of the complaint by a review board and a procedure for appealing a determination regarding the complaint. The majority of the members of the review board must be insureds who receive health- care services from the managed care organization.
(2) Except as otherwise provided, a review board shall complete its review regarding a complaint or appeal and notify the insured of its determination not later than thirty days after the complaint or appeal is filed, unless the insured and the review board have agreed to a longer period of time.
(3) Any review board involving direct patient care or hospitalization issues shall include a minimum of three medical doctors or doctors of osteopathic medicine, of which one must be a specialist if the area in question involves specialty care.
(4) If a complaint involves an imminent and serious threat to the health of the insured, the managed care organization shall inform the insured immediately of his or her right to an expedited review of his or her complaint. If an expedited review is required, the review board shall notify the insured in writing of its determination within seventy-two hours after the complaint is filed.
(5) Notice provided to an insured by a review board regarding a complaint must include, without limitation, an explanation of any further rights of the insured regarding the complaint that are available under his or her health-care plan.
(d) No contract between a health-care carrier and a physician, for the purpose of delineating the rights and obligations of the parties within the provider network, may limit the liability of the health-care carrier for any actions of the physician for which the health-care carrier might otherwise be liable.
§33-25F-5. Point of service.
(a) A carrier which offers a managed care plan shall offer a point-of-service plan to every contract holder which would allow a covered person to receive covered services from out-of-network health-care providers without having to obtain a referral or prior authorization from the carrier. The point-of-service plan may require that a subscriber pay a higher deductible or copayment or higher premium for the plan pursuant to limits established by the department of health and human resources in consultation with the insurance commissioner's rules.
(b) A carrier shall provide each subscriber in a plan whose contract holder elects the point-of-service plan, with the opportunity, at the time of enrollment and during the annual open enrollment period, to enroll in the point-of-service plan option. The carrier shall provide written notice of the point- of-service plan to each subscriber in a plan whose contract holder elects the point-of-service plan and shall include in that notice a detailed explanation of the financial costs to be incurred by a subscriber who selects that plan.
(c) The requirements of this section do not apply to a carrier contract which offers a managed care plan that provides health-care services to medicaid recipients, or a federally qualified, nonprofit health maintenance organization.
(d) A carrier which offers a managed care plan utilizing a selective contracting arrangement approved in accordance with existing rules and that provides benefits for out-of-network providers is in compliance with this section.
(e) A health maintenance organization affiliated with an insurance company authorized to issue health benefit plans in this state that offers point-of-service benefits exclusively through a point-of-service plan provided by the affiliated insurance company using a selective contracting arrangement is in compliance with this section if the point-of-service plan is offered under the requirements of subsections (a) and (b) of this section.

NOTE: The purpose of this bill is to address coverage matters involving all persons who are involved with any form of managed care organization, including preferred provider organizations, health maintenance organizations or any type of organizational practice of medicine which does not include medical partnerships or solo practice. The major provisions of the bill are as follows: It requires administrators of health benefit plans to annually file certain information with the insurance commissioner; it sets forth disclosure requirements related to information that is required to be filed; it requires health-care carriers to maintain networks of providers of health-care sufficient to ensure available services for covered individuals; it enumerates general responsibilities of health-care carriers; it requires health-care carriers to adopt standards for the selection of service providers; it provides for a system in which to address and resolve complaints by a review board; it sets forth notice requirements relating to the handling of complaints; it prohibits the limiting of liability of a health-care carrier for actions or omissions of a physician; and, it requires the offering of a point-of-service plan designed to receive covered services from out-of-network health care providers without first having to obtain a referral or prior authorization from the health-care carrier.

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