H. B. 4410
(By Delegates Miley, Fleischauer, Hatfield, Hunt,
Klempa, Mahan, Manchin, Moore, Morgan, Perdue, Cann)
[Introduced February 9, 2010
; referred to the
Committee on Banking and Insurance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §5-16-7f; to amend
said code by adding thereto a new section, designated §9-5-21;
and to amend said code by adding thereto a new section,
designated §33-16-3v, all relating to requiring health
insurance coverage for autism spectrum disorders; setting
forth the types of coverage required; requiring medical
services to be provided on a nondiscriminatory basis; and
defining terms.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §5-16-7f; that said
code be amended by adding thereto a new section, designated §9-5-
21; and that said code be amended by adding thereto a new section,
designated §33-16-3v, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD
OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS,
OFFICES, PROGRAMS, ETC.
ARTICLE 16. WEST VIRGINIA PUBLIC EMPLOYEES INSURANCE ACT.
§5-16-7f. Required coverage for autism spectrum disorder.
(a) The agency shall provide coverage for the diagnosis of
autism spectrum disorders and the treatment of autism spectrum
disorders. To the extent that the diagnosis of autism spectrum
disorders and the treatment of autism spectrum disorders are not
already covered by the agency, coverage under this section shall be
included in health insurance policies that are delivered, executed,
issued, amended, adjusted or renewed in this state, or outside this
state if insuring residents of this state, on or after the
effective date of the enactment of this section during the 2010
regular session of the Legislature. The agency may not terminate
coverage, or refuse to deliver, execute, issue, amend, adjust or
renew coverage to an individual solely because the individual is
diagnosed with one of the autism spectrum disorders, has received
treatment for autism spectrum disorders, or is at risk for a
diagnosis of autism spectrum disorders.
(b) Coverage under this section is not subject to any limits
on the number of visits an individual may make to an autism services provider.
(c) The coverage required under this section must not be
subject to dollar limits, deductibles or coinsurance provisions
that are less favorable to an insured than the dollar limits,
deductibles or coinsurance provisions that apply to physical
illness generally under the health insurance policy, except as
otherwise provided in subsection (d) of this section.
(d) This section may not be construed as limiting benefits
that are otherwise available to an individual covered by the
agency. Coverage for applied behavior analysis will be subject to
a maximum benefit of $36,000 per year. On or before July 30, 2012,
the agency shall, on an annual basis, adjust the maximum benefit
for inflation by using the Medical Care Component of the United
States Department of Labor Consumer Price Index for all urban
consumers (CPI-U). The agency is to submit the adjusted maximum
benefit for publication annually no later than July 1, of each
fiscal year, and the published adjusted maximum benefit will be
applicable in the following fiscal year to health insurance
policies offered by the agency. Payments made by an insurer on
behalf of a covered individual for any care, treatment,
intervention, service or item unrelated to autism spectrum
disorders will not be applied towards any maximum benefit
established under this section.
(e) For the purposes of this section, the following terms have
the following meaning:
(1) "Applied behavior analysis" means the design,
implementation and evaluation of environmental modifications, using
behavioral stimuli and consequences, to produce socially
significant improvement in human behavior, including the use of
direct observation, measurement and functional analysis of the
relationship between environment and behavior, and appropriate use
of evidence based behavioral interventions for each individual.
(2) "Autism services provider" means any person, entity or
group that provides treatment of autism spectrum disorders.
(3) "Autism spectrum disorders" means any of the pervasive
developmental disorders as defined by the most recent edition of
the Diagnostic and Statistical Manual of Mental Disorders (DSM),
including Autistic Disorder, Asperger's Disorder and Pervasive
Developmental Disorder, Not Otherwise Specified (PDD-NOS).
(4) "Certified behavior analyst" means a West Virginia
licensed psychiatrist or psychologist who is also board certified
as a behavior analyst by the Behavior Analyst Certification Board.
(5) "Diagnosis of autism spectrum disorders" means medically
necessary assessment, evaluations or tests to diagnose whether an
individual has one of the autism spectrum disorders provided by a
licenced physician or psychiatrist with experience in assessment of autism spectrum disorders.
(6) "Evidence-based research" means research that applies
rigorous, systematic and objective procedures to obtain valid
knowledge relevant to autism spectrum disorders.
(7) "Habilitative or rehabilitative care" means professional,
counseling and guidance services and treatment programs, including
applied behavior analysis, that are necessary to develop, maintain
and restore, to the maximum extent practicable, the functioning of
an individual.
(8) "Medically necessary" means reasonably expected to do the
following:
(A) Prevent the onset of an illness, condition, injury or
disability;
(B) Reduce or ameliorate the physical, mental or developmental
effects of an illness, condition, injury or disability; or
(C) Assist to achieve or maintain maximum functional capacity
in performing daily activities, taking into account both the
functional capacity of the individual and the functional capacities
that are appropriate for individuals of the same age.
(9) "Pharmacy care" means medications prescribed by a licensed
physician and any health-related services deemed medically
necessary to determine the need or effectiveness of the
medications.
(10) "Psychiatric care" means direct or consultative services
provided by a psychiatrist licensed in the state in which the
psychiatrist practices.
(11) "Psychological care" means direct or consultative
services provided by a psychologist licensed in the state in which
the psychologist practices.
(12) "Therapeutic care" means services provided by licensed or
certified speech therapists, occupational therapists or physical
therapists under the direction of a certified behavioral analyst.
(13) "Treatment for autism spectrum disorders" means the
following care prescribed, provided or ordered for an individual
diagnosed with one of the autism spectrum disorders by a licensed
physician or a licensed psychologist who determines the care to be
medically necessary:
(A) Habilitative or rehabilitative care;
(B) Pharmacy care;
(C) Psychiatric care;
(D) Psychological care; or
(E) Therapeutic care.
(F) Any care for individuals with autism spectrum disorders
that is determined by Department of Health and Human Resources,
based upon its review of best practices or evidence-based research,
as required by section twenty-one, article five, chapter nine of this code, to be medically necessary shall be covered by the
agency.
(f) Except for inpatient services, if an individual is
receiving treatment for autism spectrum disorders, the agency has
the right to request a review of that treatment not more than once
every twelve months unless the agency and the individual's licensed
physician or licensed psychologist agree that a more frequent
review is necessary. The cost of obtaining any review shall be
borne by the agency.
(g) This section may not be construed as affecting any
obligation to provide services to an individual under an
individualized family service plan, an individualized education
program, or an individualized service plan.
CHAPTER 9. HUMAN SERVICES.
ARTICLE 5. MISCELLANEOUS PROVISIONS.
§9-5-21. Medicaid; required coverage for autism spectrum
disorders.
(a) The Department of Health and Human Resources shall provide
coverage for the diagnosis of autism spectrum disorders and the
treatment of autism spectrum disorders for Medicaid recipients. To
the extent that the diagnosis of autism spectrum disorders and the
treatment of autism spectrum disorders are not already covered by
Medicaid, coverage under this section shall be provided to current and future Medicaid recipients on or after the effective date of
the enactment of this section during the 2010 regular session of
the Legislature. The department may not terminate coverage, or
refuse to deliver, execute, issue, amend, adjust or renew coverage
to an individual solely because the individual is diagnosed with
one of the autism spectrum disorders, has received treatment for
autism spectrum disorders or is at risk for a diagnosis of autism
spectrum disorders.
(b) Coverage under this section will not be subject to any
limits on the number of visits an individual may make to an autism
services provider.
(c) The coverage required under this section is not to be
subject to dollar limits, deductibles or coinsurance provisions
that are less favorable to an insured than the dollar limits,
deductibles or coinsurance provisions that apply to physical
illness generally under the health insurance policy, except as
otherwise provided in subsection (d)of this section.
(d) This section may not be construed as limiting benefits
that are otherwise available to an individual covered by the
department. Coverage for applied behavior analysis will be subject
to a maximum benefit of $36,000 per year. On or before July 30,
2012, the department shall, on an annual basis, adjust the maximum
benefit for inflation by using the Medical Care Component of the United States Department of Labor Consumer Price Index for all
urban consumers (CPI-U). The department is to submit the adjusted
maximum benefit for publication annually no later than July 1, of
each fiscal year, and the published adjusted maximum benefit will
be applicable in the following fiscal year Medicaid recipients.
Payments made by the department on behalf of a recipient for any
care, treatment, intervention, service or item unrelated to autism
spectrum disorders will not be applied towards any maximum benefit
established under this section.
(e) For the purposes of this section, the following terms have
the following meaning:
(1) "Applied behavior analysis" means the design,
implementation and evaluation of environmental modifications, using
behavioral stimuli and consequences, to produce socially
significant improvement in human behavior, including the use of
direct observation, measurement and functional analysis of the
relationship between environment and behavior, and appropriate use
of evidence based behavioral interventions for each individual.
(2) "Autism services provider" means any person, entity or
group that provides treatment of autism spectrum disorders.
(3) "Autism spectrum disorders" means any of the pervasive
developmental disorders as defined by the most recent edition of
the Diagnostic and Statistical Manual of Mental Disorders (DSM), including Autistic Disorder, Asperger's Disorder and Pervasive
Developmental Disorder, Not Otherwise Specified (PDD-NOS).
(4) "Certified behavior analyst" means a West Virginia
licensed psychiatrist or psychologist who is also board certified
as a behavior analyst by the Behavior Analyst Certification Board.
(5) "Diagnosis of autism spectrum disorders" means medically
necessary assessment, evaluations or tests to diagnose whether an
individual has one of the autism spectrum disorders provided by a
licenced physician or psychiatrist with experience in assessment of
autism spectrum disorders.
(6) "Evidence-based research" means research that applies
rigorous, systematic and objective procedures to obtain valid
knowledge relevant to autism spectrum disorders.
(7) "Habilitative or rehabilitative care" means professional,
counseling and guidance services and treatment programs, including
applied behavior analysis, that are necessary to develop, maintain
and restore, to the maximum extent practicable, the functioning of
an individual.
(8) "Medically necessary" means reasonably expected to do the
following:
(A) Prevent the onset of an illness, condition, injury or
disability;
(B) Reduce or ameliorate the physical, mental or developmental effects of an illness, condition, injury or disability; or
(C) Assist to achieve or maintain maximum functional capacity
in performing daily activities, taking into account both the
functional capacity of the individual and the functional capacities
that are appropriate for individuals of the same age.
(9) "Pharmacy care" means medications prescribed by a licensed
physician and any health-related services deemed medically
necessary to determine the need or effectiveness of the
medications.
(10) "Psychiatric care" means direct or consultative services
provided by a psychiatrist licensed in the state in which the
psychiatrist practices.
(11) "Psychological care" means direct or consultative
services provided by a psychologist licensed in the state in which
the psychologist practices.
(12) "Therapeutic care" means services provided by licensed or
certified speech therapists, occupational therapists or physical
therapists under the direction of a certified behavioral analyst.
(13) "Treatment for autism spectrum disorders" means the
following care prescribed, provided or ordered for an individual
diagnosed with one of the autism spectrum disorders by a licensed
physician or a licensed psychologist who determines the care to be
medically necessary:
(A) Habilitative or rehabilitative care;
(B) Pharmacy care;
(C) Psychiatric care;
(D) Psychological care; or
(E) Therapeutic care.
(F) Any care for individuals with autism spectrum disorders
that is determined by the department to be medically necessary
shall be covered by the department. The department shall consult
with The Center for Excellence at West Virginia University, the
Autism Center at Marshall University, the Insurance Commissioner,
and other experts in the diagnosis and treatment of autism spectrum
disorders to review best practices or evidence-based research to
determine if other types of care or treatment of autism spectrum
disorders should be authorized as medically necessary for purposes
of Medicaid and other public and private health care programs,
plans or policies. The department shall report any such
determinations of medically necessary care or treatment of autism
spectrum disorders together with recommendations for any necessary
legislation to implement the required coverage to the President of
the Senate and the Speaker of the House of Delegates on or before
January 1 of each year.
(f) Except for inpatient services, if an individual is
receiving treatment for autism spectrum disorders, the department has the right to request a review of that treatment not more than
once every twelve months unless the agency and the individual's
licensed physician or licensed psychologist agree that a more
frequent review is necessary. The cost of obtaining any review
shall be borne by the department.
(g) This section will not be construed as affecting any
obligation to provide services to an individual under an
individualized family service plan, an individualized education
program, or an individualized service plan.
(h) The department is authorized to seek federal approval
through a Medicaid waiver or a state plan amendment for the
provision of occupational therapy, speech therapy, physical
therapy, applied behavior analysis and treatment and behavior
assistant services to individuals who are six years of age and
under and have a diagnosed autism spectrum disorder as defined in
this section. Coverage for such services shall be limited to
$36,000 annually and may not exceed $108,000 in total lifetime
benefits. This limitation does not apply to activities of daily
living and other such supportive services currently provided under
the waiver program.
(i) The department shall submit an annual report beginning on
January 1, 2011, to the President of the Senate, the Speaker of the
House of Delegates, regarding progress on obtaining federal approval and recommendations for the implementation of these home
and community-based services. The department may not implement
subsection (h) of this section without prior legislative approval.
CHAPTER 33. INSURANCE.
ARTICLE 16. GROUP ACCIDENT AND SICKNESS INSURANCE.
§33-16-3v. Requirements for coverage of autism spectrum disorders.
(a) A health insurance policy issued pursuant to the
provisions of this chapter, except supplemental health insurance,
shall provide coverage for the diagnosis of autism spectrum
disorders and the treatment of autism spectrum disorders. To the
extent that the diagnosis of autism spectrum disorders and the
treatment of autism spectrum disorders are not already covered by
a health insurance policy, coverage under this section will be
included in health insurance policies that are delivered, executed,
issued, amended, adjusted or renewed in this state, or outside this
state if insuring residents of this state, on or after sixty days
from the effective date of this section. No insurer may terminate
coverage, or refuse to deliver, execute, issue, amend, adjust or
renew coverage to an individual solely because the individual is
diagnosed with one of the autism spectrum disorders or has received
treatment for autism spectrum disorders.
(b) Coverage under this section is not subject to any limits
on the number of visits an individual may make to an autism services provider.
(c) The coverage required under this section must not be
subject to dollar limits, deductibles or coinsurance provisions
that are less favorable to an insured than the dollar limits,
deductibles or coinsurance provisions that apply to physical
illness generally under the health insurance policy, except as
otherwise provided in subsection (d) of this section.
(d) This section may not be construed as limiting benefits
that are otherwise available to an individual under a health
insurance policy.
(e) Coverage for applied behavior analysis will be subject to
a maximum benefit of $36,000 per year. After December 31, 2012,
the Insurance Commissioner shall, on an annual basis, adjust the
maximum benefit for inflation by using the Medical Care Component
of the United States Department of Labor Consumer Price Index for
all urban consumers (CPI-U). The commissioner will submit the
adjusted maximum benefit for publication annually no later than
January 1 of each calendar year, and the published adjusted maximum
benefit will be applicable in the following calendar year to health
insurance policies subject to this act. Payments made by an
insurer on behalf of a covered individual for any care, treatment,
intervention, service, or item unrelated to autism spectrum
disorders will not be applied towards any maximum benefit established under this section.
(f) As used in this section:
(1) "Applied behavior analysis" means the design,
implementation and evaluation of environmental modifications, using
behavioral stimuli and consequences, to produce socially
significant improvement in human behavior, including the use of
direct observation, measurement and functional analysis of the
relationship between environment and behavior, and appropriate use
of evidence based behavioral interventions for each individual.
(2) "Autism services provider" means any person, entity or
group that provides treatment of autism spectrum disorders.
(3) "Autism spectrum disorders" means any of the pervasive
developmental disorders as defined by the most recent edition of
the Diagnostic and Statistical Manual of Mental Disorders (DSM),
including Autistic Disorder, Asperger's Disorder and Pervasive
Developmental Disorder, Not Otherwise Specified(PDD-NOS).
(4) "Certified behavior analyst" means a West Virginia
licensed psychiatrist or psychologist who is also board certified
as a behavior analyst by the Behavior Analyst Certification Board.
(5) "Diagnosis of autism spectrum disorders" means medically
necessary assessment, evaluations or tests to diagnose whether an
individual has one of the autism spectrum disorders provided by a
licenced physician or psychiatrist with experience in assessment of autism spectrum disorders.
(6) "Evidence-based research" means research that applies
rigorous, systematic and objective procedures to obtain valid
knowledge relevant to autism spectrum disorders.
(7) "Habilitative or rehabilitative care" means professional,
counseling and guidance services and treatment programs, including
applied behavior analysis, that are necessary to develop, maintain
and restore, to the maximum extent practicable, the functioning of
an individual.
(8) "Medically necessary" means reasonably expected to do the
following:
(A) Prevent the onset of an illness, condition, injury or
disability;
(B) Reduce or ameliorate the physical, mental or developmental
effects of an illness, condition, injury or disability; or
(C) Assist to achieve or maintain maximum functional capacity
in performing daily activities, taking into account both the
functional capacity of the individual and the functional capacities
that are appropriate for individuals of the same age.
(9) "Pharmacy care" means medications prescribed by a licensed
physician and any health-related services deemed medically
necessary to determine the need or effectiveness of the
medications.
(10) "Psychiatric care" means direct or consultative services
provided by a psychiatrist licensed in the state in which the
psychiatrist practices.
(11) "Psychological care" means direct or consultative
services provided by a psychologist licensed in the state in which
the psychologist practices.
(12) "Therapeutic care" means services provided by licensed or
certified speech therapists, occupational therapists or physical
therapists under the direction of a certified behavioral analyst.
(13) "Treatment for autism spectrum disorders" means the
following care prescribed, provided or ordered for an individual
diagnosed with one of the autism spectrum disorders by a licensed
physician or a licensed psychologist who determines the care to be
medically necessary:
(A) Habilitative or rehabilitative care;
(B) Pharmacy care;
(C) Psychiatric care;
(D) Psychological care; or
(E) Therapeutic care.
(g) Except for inpatient services, if an individual is
receiving treatment for autism spectrum disorders, an insurer will
have the right to request a review of that treatment not more than
once every twelve months unless the insurer and the individual's licensed physician or licensed psychologist agrees that a more
frequent review is necessary. The cost of obtaining any review
will be borne by the insurer.
(h) This section may not be construed as affecting any
obligation to provide services to an individual under an
individualized family service plan, an individualized education
program, or an individualized service plan.
NOTE: The purpose of this bill is to require health insurance
coverage for autism spectrum disorders. The bill sets forth the
types of coverage required and requires therapeutic services to be
provided on a nondiscriminatory basis. The bill also defines
terms.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.