Senate Bill No. 350
(By Senators Minard and Stollings)
[Originating in the Committee on Finance;
reported March 1, 2011.]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §33-16G-1, §33-16G-2, §33-16G-3, §33-16G-4, §33-16G-5, §33-16G-6, §33-16G-7 and §33-16G-8, all relating to an all-payer claims database; declaring purpose; defining terms; developing the database by the Insurance Commissioner, Secretary of Health and Human Resources and Chairperson of the Health Care Authority; authorizing joint emergency and legislative rules; providing for compliance with privacy laws; permitting fees and assessments to be assessed; authorizing penalties to be set by rule; authorizing injunctive relief; establishing special revenue account; and allowing other sanctions.
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 article, designated §33-16G-1, §33-16G-2, §33-16G-3, §33-16G-4, §33-16G-5, §33-16G-6, §33-16G-7 and §33-16G-8, all to read as follows:
ARTICLE 16G. ALL-PAYER CLAIMS DATABASE.
(a) "All-payer claims database" or "APCD" means the program authorized by this article that collects, retains, uses and discloses information concerning the claims and administrative expenses of health care payers.
(b) "Chair" means the chairperson of the West Virginia Health Care Authority.
(c) "Commissioner" means the West Virginia Insurance Commissioner.
(d) "Data" means the data elements from enrollment and eligibility files, specified types of claims, and reference files for date elements not maintained in formats consistent with national coding standards.
(e) "Health care payer" means any entity that pays or administers the payment of health insurance claims or medical claims under workers’ compensation insurance to providers in this state, including workers’ compensation insurers; accident and sickness insurers; nonprofit hospital service corporations, medical service corporations and dental service organizations; nonprofit health service corporations; prepaid limited health service organizations; health maintenance organizations; and government payers, including but not limited to Medicaid, Medicare and the public employees insurance agency; the term also includes any third-party administrator including any pharmacy benefit manager, that administers a fully-funded or self-funded plan:
A “health insurance claim” does not include:
(1) Any claim paid under an individual or group policy providing coverage only for accident, or disability income insurance or any combination thereof; coverage issued as a supplement to liability insurance; liability insurance, including general liability insurance and automobile liability; credit-only insurance; coverage for on-site medical clinics; other similar insurance coverage, which may be specified by rule, under which benefits for medical care are secondary or incidental to other insurance benefits; or
(2) Any of the following if provided under a separate policy, certificate, or contract of insurance: Limited scope dental or vision benefits: benefits for long-term care, nursing home care, home health care, community-based care, or any combination thereof; coverage for only a specified disease or illness; or hospital indemnity or other fixed indemnity insurance.
“Health insurance claims” shall only include information from Medicare supplemental policies if the same information is obtained with respect to Medicare.
(f) "Personal identifiers" means information relating to an individual member or insured that identifies, or can be used to identify, locate or contact a particular individual member or insured, including but not limited to the individual's name, street address, social security number, e-mail address and telephone number.
(g) "Secretary" means the Secretary of the West Virginia Department of Health and Human Services.
(h) “Third-party administrator” has the same meaning ascribed to it in section two, article forty-six of this chapter.
§33-16G-2. Establishment and development of an all-payer claims database.
(a) The secretary, commissioner and chair, collectively referred to herein as the "MOU parties", shall enter into a memorandum of understanding to develop an all-payer claims database program.
(b) The memorandum of understanding shall, at a minimum:
(1) Provide that the commissioner will have primary responsibility for the collection of the data in order to facilitate the efficient administration of state oversight, the secretary will have primary responsibility for the retention of data supplied to the state under its health care oversight function, and the chair will have primary responsibility for the dissemination of the data;
(2) Delineate the MOU parties' roles, describe the process to develop legislative rules required by this article, establish communication processes and a coordination plan, and address vendor relationship management;
(3) Provide for the development of a plan for the financial stability of the APCD, including provision for funding by the MOU parties' agencies; and
(4) Provide for the use of the hospital discharge data collected by the West Virginia Health Care Authority as a tool in the validation of APCD reports.
§33-16G-3. Powers of the commissioner, secretary and chair; exemption from purchasing rules. (a) The MOU parties may:
(1) Accept gifts, bequests, grants or other funds dedicated to the furtherance of the goals of the APCD;
(2) Select a vendor to handle data collection and processing and such other tasks as deemed appropriate;
(3) Enter into agreements with other states to perform joint administrative operations, share information and assist in the development of multistate efforts to further the goals of this article: Provided, That any such agreements must include adequate protections with respect to the confidentiality of the information to be shared and comply with all state and federal laws and regulations;
(4) Enter into memoranda of understanding with other governmental agencies to carry out any of its functions, including contracts with other states to perform joint administrative functions;
(5) Attempt to ensure that the requirements with respect to the reporting of data be standardized so as to minimize the expense to parties subject to similar requirements in other jurisdictions;
(6) Enter into voluntary agreements to obtain data from payers not subject to mandatory reporting under this article; and
(7) Exempt a payer for class of payers from the requirements of this article for cause.
(b) Contracts for professional services for the development and operation of the APCD are not subject to the provisions of article three, chapter five-a of this code relating to the Purchasing Division of the Department of Administration. The award of such contracts shall be subject to a competitive process established by the MOU parties.
(c) The MOU parties shall make an annual report to the
Governor, which shall also be filed with the Joint Committee on
Government and Finance, summarizing the activities of the APCD in
the preceding calendar year.
§33-16G-4. Data subject to this article.
(a) All health care payers shall submit data to the commissioner or an entity designated by the commissioner at such times and in a form specified in rule. Any health care payer that the commissioner determines paid or administered the payment of health insurance claims in this state for policies on fewer than 500 covered lives in the previous calendar year is exempt from the requirements of this article.
(b) Data submitted in accordance with this article shall be considered confidential by law and privileged, are exempt from disclosure pursuant to chapter twenty-nine-b of this code, are not open to public inspection, are not subject to subpoena, are not subject to discovery or admissible in evidence in any criminal, private civil or administrative action, are not subject to production pursuant to court order, and shall only be used and disclosed pursuant to law and legislative rules promulgated pursuant to this article.
(c)(1) Data submitted to and retained by the APCD shall be available as a resource for the MOU parties to continuously review health care utilization, expenditures and performance in West Virginia and to enhance the ability of consumers to make informed and cost-effective health care decisions.
(2) Data submitted to and retained by the APCD may, in accordance with this article and the legislative rules promulgated pursuant to this article, also be available as a resource for insurers, researchers, employers, providers, purchasers of health care, consumers, and state agencies.
(d) Notwithstanding any other provision of law to the
contrary, the APCD shall not disclose any data that contain
personal identifiers. The MOU parties, in accordance with
procedures and standards set forth in legislative rule, may approve
access to other data elements not prohibited from disclosure by the
APCD, as well as synthetic or created unique identifiers, for use
by researchers, including government agencies, with
established protocols for safeguarding confidential or privileged
information. The MOU parties' use of the data shall not constitute
§33-16G-5. User fees; waiver.
Reasonable user fees may be set collected in the manner established in legislative rule, for the right to access and use the data available from the APCD. The chair may reduce or waive the fee if he or she determines that the user is unable to pay the scheduled fees and that the user has a viable plan to use the data or information in research of general value to the public health.
§33-16G-6. Enforcement; injunctive relief.
In the event of any violation of this article or any rule adopted thereunder, the commissioner, secretary or chair may seek to enjoin a further violation in the circuit court of Kanawha County. Injunctive relief ordered pursuant to this section may be in addition to any other remedies and enforcement actions available to the commissioner under this chapter.
§33-16G-7. Special revenue account created.
(a) There is hereby created a special revenue account in the State Treasury, designated the West Virginia All-Payer Claims Database Fund, which shall be an interest-bearing account and may be invested in the manner permitted by article six, chapter twelve of this code, with the interest income a proper credit to the fund and which shall not revert to the general revenue, unless otherwise designated in law. The fund shall be overseen by the commissioner, secretary and chair, shall be administered by the commissioner, and shall be used to pay all proper costs incurred in implementing the provisions of this article.
(b) The following funds shall be paid into this account:
(1) Penalties imposed on health care payers pursuant to this article and rules promulgated hereunder;
(2) Funds received from the federal government;
(3) Appropriations from the Legislature; and
(4) All other payments, gifts, grants, bequests or income from any source.
§33-16G-8. Rule-making authority.
To effectuate the provisions of this article, the MOU parties may propose joint rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code as necessary to implement this article. No actions to collect data or assess fees pursuant to this article may be undertaken until rules promulgated hereunder are made effective. Such rules may include, but are not limited to, the following:
(a) Procedures for the collection, retention, use and disclosure of data from the APCD, including procedures and safeguards to protect the privacy, integrity, confidentiality and availability of any data;
(b) Penalties against health care payers for violation of rules governing the submission of data, including a schedule of fines for failure to file data or to pay assessments;
(c) Fees payable by users of the data and the process for a waiver or reduction of user fees. Any such fees shall be established at a level that, when considered together with other available funding sources, is deemed necessary to sustain the operation of the APCD;
(d) A proposed time frame for the creation of the database;
(e) Criteria for determining whether data collected, beyond the listed personal identifiers, is confidential clinical, confidential financial data or privileged medical information, and procedures to give affected providers and health care payers notice and opportunity to comment in response to requests for information that may be considered confidential or privileged;
(f) Penalties, including fines and other administrative sanctions, that may be imposed by the commissioner for a health care payer's failure to comply with requirements of this article and rules adopted hereunder; and
(g) Establishment of advisory boards to provide advice to the
MOU parties with respect to the various functions of the APCD.