Senate Bill No. 431
(By Senators Minard, Helmick, McCabe and Barnes)
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[Introduced March 3, 2009; referred to the Committee on Banking
and Insurance; and then to the Committee on Finance.]
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A BILL to amend and reenact §33-16D-16 of the Code of West
Virginia, 1931, as amended, relating to notice to in-state
medical providers of the participation provisions of the small
group health benefit plan.
Be it enacted by the Legislature of West Virginia:
That §33-16D-16 of the Code of West Virginia, 1931, as
amended, be amended and reenacted to read as follows:
ARTICLE 16D. MARKETING AND RATE PRACTICES FOR SMALL EMPLOYER
ACCIDENT AND SICKNESS INSURANCE POLICIES.
§33-16D-16. Authorization of uninsured small group health benefit
plans.
(a) Upon filing with and approval by the commissioner, any
carrier licensed pursuant to this chapter which accesses a health
care provider network to deliver services may offer a health
benefit plan and rates associated with the plan to a small employer subject to the conditions of this section and subject to the
provisions of this article. The health benefit plan shall be is
subject to the following conditions:
(1) The health benefit plan may be offered by the carrier only
to small employers which have not had a health benefit plan
covering their employees for at least six consecutive months before
the effective date of this section. After the passage of six
months from the effective date of this section, the health benefit
plan under this section may be offered by carriers only to small
employers which have not had a health benefit plan covering their
employees for twelve consecutive months;
(2) If a small employer covered by a health benefit plan
offered pursuant to this section no longer meets the definition of
a small employer as a result of an increase in eligible employees,
that employer shall remain covered by the health benefit plan until
the next annual renewal date;
(3) The small employer shall pay at least fifty percent of its
employees' premium amount for individual employee coverage;
(4) The commissioner shall promulgate emergency rules under
the provisions of article three, chapter twenty-nine-a of this code
on or before September 1, 2004, to place additional restrictions
upon the eligibility requirements for health benefit plans
authorized by this section in order to prevent manipulation of
eligibility criteria by small employers and otherwise implement the provisions of this section;
(5) Carriers must offer the health benefit plans issued
pursuant to this section through one of their existing networks of
health care providers;
(A) The director of the Public Employees Insurance Agency West
Virginia Health Care Authority shall, on or before May 1, 2004, and
each year thereafter, by regular mail, provide a written notice to
all known in-state health care providers that:
(i) Informs the health care provider regarding the provisions
of this section; and
(ii) Notifies the health care provider that if the health care
provider does not give written refusal to the director of the
Public Employees Insurance Agency West Virginia Health Care
Authority within thirty days from receipt of the notice or the
health care provider has not previously filed a written notice of
refusal to participate, the health care provider must participate
with and accept the products and provider reimbursements authorized
pursuant to this section;
(B) The carrier's network of health care providers, as well as
any health care provider which provides health care goods or
services to beneficiaries of any departments or divisions of the
state, as identified in article twenty-nine-d, chapter sixteen of
this code, shall accept the health care provider reimbursement
rates set pursuant to this section unless the health care provider gives written refusal to the director of the Public Employees
Insurance Agency West Virginia Health Care Authority between May 1
and June 1 that the provider will not participate in this program
for the next calendar year. Notwithstanding any provision of this
code to the contrary, health care providers may not be mandated to
participate in this program except under the opt-out provisions of
subdivision (5), subsection (a) of this section and therefore the
health care provider shall annually have the ability to file with
the director of the Public Employees Insurance Agency West Virginia
Health Care Authority written notice that the health care provider
will not participate with products issued pursuant to this section.
Once a health care provider has filed a notice of refusal with the
director West Virginia Health Care Authority, the notice shall
remain effective until rescinded by the provider and the provider
shall not be required to renew the notice each year;
(C) The Public Employees Insurance Agency West Virginia Health
Care Authority is responsible for receiving the responses, if any,
from the health care providers that have elected not to participate
and for providing a list to the commissioner of those health care
providers that have elected not to participate;
(D) Those health care providers that do not file a notice of
refusal shall be considered to have accepted participation in this
program and to accept Public Employees Insurance Agency health care
provider reimbursement rates for their services as set by this section;
(E) Health care provider reimbursement rates used by the
carrier for a health benefit plan offered pursuant to this section
shall have no effect on provider rates for other products offered
by the carrier and most-favored-nation clauses do not apply to the
rates;
(6) With respect to the health benefit plans authorized by
this section, the carrier shall reimburse network health care
providers at the same health care provider reimbursement rates in
effect for the managed care and health maintenance organization
plans offered by the West Virginia Public Employees Insurance
Agency. Beginning in the year 2004, and in each year thereafter,
the health care provider reimbursement rates set under this section
shall may not be lowered from the level of the rates in effect on
the July 1 of that year for the managed care and health maintenance
plans offered by the Public Employees Insurance Agency. While it
is the intent of this paragraph to govern rates for plans offered
pursuant to this section for annual periods, this paragraph in no
way prevents the Public Employees Insurance Agency from making
provider reimbursement rate adjustments to Public Employees
Insurance Agency plans during the course of each year. If there is
a dispute regarding the determination of appropriate rates pursuant
to this section, the Director of the Public Employees Insurance
Agency shall, in his or her sole discretion, specify the appropriate rate to be applied;
(A) The health care provider reimbursement rates as authorized
by this section shall be accepted by the health care provider as
payment in full for services or products provided to a person
covered by a product authorized by this section;
(B) Except for the health care provider rates authorized under
this section, a carrier's payment methodology, including copayments
and deductibles and other conditions of coverage, remains
unaffected by this section;
(C) The provisions of this section do not require the Public
Employees Insurance Agency to give carriers access to the
purchasing networks of the Public Employees Insurance Agency. The
Public Employees Insurance Agency may enter into agreements with
carriers offering health benefit plans under this section to permit
the carrier, at its election, to participate in drug purchasing
arrangements pursuant to article sixteen-c, chapter five of this
code, including the multistate drug purchasing program. This
paragraph provides authorization of the agreements pursuant to
section four of said article;
(7) Carriers may not underwrite products authorized by this
section more strictly than other small group policies governed by
this article;
(8) With respect to health benefit plans authorized by this
section, a carrier shall have a minimum anticipated loss ratio of seventy-seven percent to be eligible to make a rate increase
request after the first year of providing a health benefit plan
under this section;
(9) Products authorized under this section are exempt from the
premium taxes assessed under sections fourteen and fourteen-a,
article three of this chapter;
(10) A carrier may elect to nonrenew any health benefit plan
to an eligible employer if, at any time, the carrier determines, by
applying the same network criteria which it applies to other small
employer health benefit plans, that it no longer has an adequate
network of health care providers accessible for that eligible small
employer. If the carrier makes a determination that an adequate
network does not exist, the carrier has no obligation to obtain
additional health care providers to establish an adequate network;
(11) Upon thirty days' advance notice to the commissioner, a
carrier may, at any time, elect to nonrenew all health benefit
plans issued pursuant to this section. If a carrier nonrenews all
its business issued pursuant to this section for any reason other
than the adequacy of the provider network, the carrier may not
offer this health benefit plan to any eligible small employer for
a period of at least two years after the last eligible small
employer is nonrenewed; and
(12) The Insurance Commissioner may not approve any health
benefit plan issued pursuant to this section until it has obtained any necessary federal governmental authorizations or waivers. The
Insurance Commissioner shall apply for and obtain all necessary
federal authorizations or waivers.
(b) Health benefit plans authorized by this section are not
intended to violate the prohibition set out in subsection (a),
section four of this article.
(c) If no carrier has offered a health benefit plan under this
section by the first day of July, two thousand five, except for
failure to obtain a federal authorization or waiver pursuant to
subdivision (12), subsection (a) of this section, the director of
the Public Employees Insurance Agency and the Insurance
Commissioner may, if they agree, jointly develop a proposed program
for consideration by the Legislature for the Public Employees
Insurance Agency to offer small group health plans to uninsured
small employer groups. The proposed program shall not be acted
upon by the Public Employees Insurance Agency until the Legislature
approves the program.
(d) If no carrier or the Public Employees Insurance Agency has
offered a health benefit plan pursuant to this section within three
years from the effective date of this section, the provisions of
this section expire and become null and void.
(e) (c) The commissioner shall appoint a policy advisory
committee to provide advice to the commissioner regarding providing
health insurance to uninsureds and to monitor the effectiveness of this section. The committee shall contain members the commissioner
considers appropriate, but shall have members representing at least
the following interest groups: Labor, hospital providers,
physician providers, private business, local government, insurance
carriers and the uninsured.
(f) (d) Carriers offering health benefit plans pursuant to
this section shall annually or before December 1 of each year
report in a form acceptable to the commissioner the number of
health benefit plans written by the carrier and the number of
individuals covered under the health benefit plans.
(g) (e) To the extent that provisions of this section differ
from those contained elsewhere in this chapter, the provisions of
this section control.
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(NOTE: The purpose of this bill is to reassign the
responsibility for providing notice under this code section to
in-state medical providers and receiving provider elections to opt
out of the small-group insurance program from the Public Employee
Insurance Agency to the West Virginia Health Care Authority.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)