Adopted by House 4-9-2009
SB552 HB&I AM 4-6
The Committee on Banking and Insurance moved to amend the bill
page two by striking out everything after the enacting clause and
inserting in lieu thereof the following:
"That §33-15D-1, §33-15D-2, §33-15D-3, §33-15D-4, §33-15D-5,
§33-15D-6, §33-15D-7, §33-15D-8, §33-15D-9, §33-15D-10 and §33-15D-
11 of the Code of West Virginia, 1931, as amended, be repealed;
that said code be amended by adding a new section thereto,
designated §33-16-3t; that §33-16F-1, §33-16F-2, §33-16F-3, §33-
16F-4, §33-16F-5, §33-16F-6, §33-16F-7 and §33-16F-8 of said code
be amended and reenacted; and that said code be amended by adding
thereto two new sections, designated §33-16F-9 and §33-16F-10, all
to read as follows:
ARTICLE 16. GROUP ACCIDENT AND SICKNESS INSURANCE.
§33-16-3t. Special enrollment period under the American Recovery
and Reinvestment Act of 2009.
(a) The Legislature finds that recent attempts to assist
unemployed persons during the economic downturn beginning at the
end of 2009 included a federal initiative to provide subsidies to
certain persons who have lost their employer-sponsored health
insurance coverage. As part of the American Recovery and
Reinvestment Act of 2009, certain involuntarily terminated
employees and their dependents were given an second opportunity to elect subsidized COBRA coverage. This federal initiative also
included relief to certain persons not covered by the federal COBRA
laws, but access to such relief was made dependent on the states
acting to require that such persons be given notice of their right
to elect such coverage. Therefore, the Legislature intends that
this section be interpreted in such a manner as to maximize the
opportunity of West Virginians to obtain these much needed
(b) Definitions. As used in this section:
(1) "Assistance eligible individual" means any qualified
beneficiary who was eligible for continuation coverage between
September 1, 2008 and February 17, 2009 due to a covered employee's
termination from employment during this period and who elected such
(2) "Continuation coverage" means accident and sickness
insurance coverage offered to persons pursuant to policy provisions
required by subsection (e), section three of this article.
(3) "Covered employee" means a person who was involuntarily
terminated by a small employer between September 1, 2008 and
February 16, 2009, and at the time of his or her termination either
(i) was eligible for but did not elect to enroll in continuation
coverage; or (ii) enrolled but subsequently discontinued enrollment
in continuation coverage.
(4) "Qualified beneficiary" has the same meaning as that term
is defined in §607(3) of the Employee Retirement Income Security Act of 1974, 29 U.S.C. §1167(3).
(5) "Small employer" means any employer that had fewer than
twenty (20) employees during fifty percent (50%) or more of its
typical business days in the previous calendar year.
(c) An individual who does not have an election of
continuation coverage in effect on February 17, 2009, but who would
be an assistance eligible individual if such election were in
effect, may elect continuation coverage pursuant to this section.
Such election shall be made no later than sixty days after the date
the administrator of the group health plan (or other entity
involved) provides the notice required by section 3001(a)(7) of the
American Recovery and Reinvestment Act of 2009. The administrator
of the group health plan (or other entity involved) shall provide
such individuals with additional notice of the right to elect
coverage pursuant to this subsection prior to April 18, 2009.
(d) Continuation coverage elected pursuant to subsection (c)
of this section shall commence with the first period of coverage
beginning on or after February 17, 2009: Provided, That
continuation coverage elected pursuant to this subsection shall not
extend beyond the maximum eighteen-month period provided for by
subsection (e), section three of this article.
(e) With respect to an individual who elects continuation
coverage pursuant to subsection (b) of this section, the period
beginning on the date of the involuntary termination and ending on
the date of the first period of coverage on or after February 17, 2009, shall be disregarded for purposes of determining the sixty-
three day period referred to in subsection (b), section three-m of
"ARTICLE 16F. WEST VIRGINIA AFFORDABLE HEALTH CARE PLAN.
§33-16F-1. Legislative intent.
The Legislature finds that the inability of a significant
number of state residents to obtain affordable health insurance
coverage adversely affects everyone in our state. Therefore, it is
the intent of the Legislature to expand the availability of health
care options for uninsured residents by developing affordable
health care products that emphasize coverage for basic and
preventive health care services, provide inpatient hospital and
emergency care services and offer optional catastrophic coverage.
As used in this article:
"West Virginia affordable health care plan" means a health
insurance plan approved under this article.
"West Virginia affordable health care plan entity" or "plan
entity" means an entity licensed under this chapter that develops
and proposes a West Virginia affordable health care plan and, if
the plan is approved, is responsible for administering the plan and
paying claims of plan enrollees.
"Enrollee" means an individual who has been determined to be
eligible for and is receiving health insurance coverage under a
West Virginia affordable health care plan.
§33-16F-3. Plan proposals; approval of plans.
(a) The commissioner shall announce, no later than July 1,
2009, an invitation to prospective West Virginia affordable health
care plan entities to submit West Virginia affordable health care
plan proposals. The invitation shall include guidelines for the
review of West Virginia affordable health care plan applications,
policies and associated rates.
(b) In reviewing proposals under this article, the
commissioner shall consider the proposed plans' effectiveness in
improving the health status of individuals, their impact on
maintaining and improving health and their potential to reduce the
unnecessary consumption of health care services.
§33-16F-4. Required plan provisions; grounds for disapproval;
(a) To be approved, plan entities must assure that each
proposed plan will provide cost containment through the use of plan
design features such as limits on the number of services, caps on
benefit payments or co-payments for services.
(b) To provide consumer choice, plan entities must develop and
submit two alternative benefit option plans having different cost
and benefit levels, including at least one plan that provides
catastrophic coverage. Plans providing catastrophic coverage must,
at a minimum, provide coverage for preventive health services and
inpatient hospital stays and may also include coverage of one or
more of the following: Hospital emergency care services and outpatient facility services; outpatient surgery; or outpatient
(c) All plans must offer prescription drug benefit coverage.
(d) Plan enrollment materials must provide information in
plain language on policy benefit coverage, benefit limits, cost-
sharing requirements, exclusions and a clear representation of what
is not covered in the plan. The enrollment materials must include
a standard disclosure form developed by the commissioner that must
be reviewed and executed by all consumers purchasing West Virginia
affordable health care plan coverage.
(e) The commissioner shall disapprove any plan that:
(1) Contains any ambiguous, inconsistent or misleading
provisions or any exceptions or conditions that deceptively affect
or limit the benefits purported to be assumed in the general
coverage provided by the plan;
(2) Provides benefits that are unreasonable in relation to the
premium charged; or
(3) Contains provisions that are unfair or inequitable,
contrary to the public policy of this state, encourage
misrepresentation or result in unfair discrimination in sales
§33-16F-5. Eligibility of individuals and groups.
(a) Individuals. -- Eligibility to enroll in an individual
West Virginia affordable health care plan is limited to any
resident of this state who:
(1) Is not covered by a private insurance policy and is not
eligible for coverage under an employer-sponsored group plan or
through a public health insurance program, such as Medicare,
Medicaid or the state Children's Health Insurance Program; and
(2) Has not been covered by any health insurance program at
any time during the past six months, unless coverage under a health
insurance program was terminated within the previous six months due
to loss of a job that provided an employer-sponsored health benefit
plan or death of, or divorce from, a spouse who was provided an
employer-sponsored health benefit plan or, with respect to a public
health insurance program, eligibility for such program was lost due
to an inability to meet income or categorical requirements:
Provided, That an individual may not be excluded from enrollment in
a West Virginia affordable health care plan on the ground that he
or she is eligible for or is enrolled in a COBRA plan.
(b) Group. -- An otherwise eligible group may not obtain
coverage under a West Virginia affordable health care plan unless
the group has not had coverage under any health insurance plan at
any time during the previous six months.
§33-16F-6. Regulation and marketing of plans.
(a) The commissioner shall issue guidelines to ensure that
West Virginia affordable health care plans meet minimum standards
for quality of and access to care.
(b) Initial filings and changes in West Virginia affordable
health care plan benefits, premiums and policy forms are subject to regulatory oversight by the commissioner.
(c) The commissioner shall develop a public awareness program
to be implemented throughout the state for the promotion of the
plans approved under this article, which may include assistance
from state health insurance benefits advisors.
(d) Each West Virginia affordable health care plan must
maintain enrollment data and provide network data and reasonable
records to enable the commissioner to assess the plans.
§33-16F-7. Applicability of certain provisions; commissioner's
authority to forbear from applying certain provisions.
(a) Individual plans. -- Only the following provisions of
article fifteen of this chapter apply to West Virginia entities
offering individual plans pursuant to this article: Sections two-
a, two-d, two-e, three, four, four-c, four-e, four-f, four-g, five,
six, seven, eight, nine, thirteen, fourteen, sixteen, seventeen,
eighteen, nineteen and twenty. Notwithstanding any other provision
of this code, the provisions of article twenty-eight of this
chapter and legislative rules regulating individual accident and
sickness policies, including the rule contained in series 12, title
114 of the West Virginia Code of State Rules, do not apply to
individual plans issued pursuant to this article unless and to the
extent specifically incorporated in rules promulgated pursuant to
the authority conferred by section eleven of this article.
(b) Group plans. -- Only the following provisions of article
sixteen of this chapter apply to insurers offering group plans pursuant to this article: Sections one-a, three, three-g, three-j,
three-k, three-l, three-m, three-n, three-o, three-p, four, five,
six, seven, nine, ten, eleven, twelve, thirteen, fourteen and
fifteen; all other provisions of article sixteen do not apply to
group plans approved pursuant to this article unless and to the
extent the provisions are specifically incorporated in rules
promulgated by the commissioner. Notwithstanding any other
provision of this code or of the code of state rules, the
provisions of article sixteen-e of this chapter and of legislative
rules regulating group accident and sickness policies, including
the rule set forth in series 39, title 114 of the West Virginia
Code of State Rules, do not apply to group plans approved pursuant
to this article unless and to the extent specifically incorporated
in rules promulgated by the commissioner pursuant to the authority
conferred by section eleven of this article.
(c) Small group plans. -- With respect to any group plan
approved under this article and offered to any "small employer", as
that term is defined in section two, article sixteen-d of this
chapter, the following provisions of article sixteen-d apply:
Sections two, four, seven, eight, twelve, thirteen and fourteen:
Provided, That only the sentence preceding the proviso in section
thirteen, article sixteen-d of this chapter applies to small
employer plans approved pursuant to this article. Notwithstanding
any other provision of this code, all other provisions of article
sixteen-d of this chapter do not apply to small employer plans approved pursuant to this article unless and to the extent such
provisions are specifically incorporated in rules promulgated by
(d) Forbearance by the commissioner. -- The commissioner may
forbear from applying any other statutory or regulatory
requirements to an insurer offering an individual or group plan
approved pursuant to this article, including any requirements in
articles twenty-four and twenty-five-a of this chapter, if he or
she determines that such forbearance serves the principles set
forth in section one of this article.
(e) Existing limited benefit plans. -- Plans approved pursuant
to the provisions of article fifteen-d of this chapter, as that
article existed prior to its repeal during the 2009 regular
legislative session, and this article, as that it existed prior to
its amendment and reenactment during the 2009 regular legislative
session, remain in effect and are subject to those provisions.
§33-16F-8. Assessment of the West Virginia program.
The commissioner shall:
(1) Provide an assessment of the West Virginia affordable
health care plans and their potential applicability in other
(2) Use West Virginia affordable health care plans to gather
more information to evaluate low-income, consumer-driven benefit
(3) Submit by March 1, 2011, and annually thereafter, a report to the Governor, the President of the Senate and the Speaker of the
House of Delegates that provides the information specified in this
section and recommendations relating to the successful
implementation and administration of the program.
Coverage under a West Virginia affordable health care plan is
not an entitlement and a cause of action does not arise against the
state, a local government entity, any other political subdivision
of the state or any agency for failure to make coverage available
to eligible persons under this article.
§33-16F-10. Emergency and legislative rules authorized.
The commissioner may promulgate emergency and legislative
rules under the provisions of article three, chapter twenty-nine-a
of this code, to prescribe requirements regarding rate making,
which may include rules establishing loss ratio standards for the
plans; to place limitations on eligibility for coverage under the
approved plans; to establish standards to determine whether a plan
qualifies as creditable coverage; to determine what medical
treatments, procedures and related health services benefits must be
included in the plans; and to provide for any other matters deemed
necessary to further the intent of this article."