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ENGROSSED
Senate Bill No. 388
(By Senators Prezioso, Minard, Stollings and Foster)
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[Introduced January 31, 2007; referred to the Committee on Health
and Human Resources; and then to the Committee on the Judiciary.]
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A BILL to amend and reenact §48-12-101, §48-12-102 and §48-12-103
of the Code of West Virginia, 1931, as amended, all relating
to medical support provisions in child support orders;
defining terms; establishing procedures for allocation of the
costs of medical support between the parties to a child
support order; and providing guidelines for setting medical
support.
Be it enacted by the Legislature of West Virginia:
That §48-12-101, §48-12-102 and §48-12-103 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 12. MEDICAL SUPPORT.
§48-12-101. Definitions applicable to medical support enforcement.
For the purposes of this article:
(1) "Appropriate health insurance coverage" means insurance
coverage that is reasonable in cost, comprehensive in nature and
reasonably accessible to the child to be covered.
(2) "Cash medical support" means an amount ordered to be paid
toward the cost of health insurance provided by a public entity or
by another person through employment or otherwise, or for other
medical costs not covered by insurance.
(1) (3) "Custodian for the children" means a parent, legal
guardian, committee or other third party appointed by court order
as custodian of a child or children for whom child support is
ordered.
(2) (4) Obligated parent" means a natural or adoptive parent
who is required by agreement or order to pay for insurance coverage
and medical care, or some portion thereof, for his or her child.
(3) (5) "Insurance coverage" means coverage for medical,
dental, including orthodontic, optical, prescription
pharmaceuticals, psychological, psychiatric or other health care
services.
(4) (6) "Child" means a child to whom a duty of child support
is owed.
(5) (7) "Medical care" means medical, dental, optical,
prescription pharmaceuticals, psychological, psychiatric or other
health care service for children in need of child support.
(6) (8) "Insurer" means any company, health maintenance
organization, self-funded group, multiple employer welfare arrangement, hospital or medical services corporation, trust, group
health plan, as defined in 29 U. S. C. §1167, Section 607(1) of the
Employee Retirement Income Security Act of 1974 or other entity
which provides insurance coverage or offers a service benefit plan.
(7) (9) "National medical support notice" means the written
notice described in 29 U. S. C. §1169 (a)(5)(C) and 42 U. S. C.
§666(a)(19) and issued as a means of enforcing the health care
coverage provisions in a child support order for children whose
parent or parents are required to provide health-care coverage
through an employment-related group health plan. This notice is
consider under ERISA to be a qualified medical child support order
(QMSO).
(8) (10) "Qualified medical child support order" means a
medical child support order which creates or recognizes the
existence of an alternate recipient's right to, or assigns to an
alternate recipient the right to, receive benefits from which a
participant or beneficiary is eligible under a group health plan.
A qualified medical child support order must include the name and
the last known mailing address, if any, of the participant and the
name and mailing address of each alternate recipient covered by the
order, except that, to the extent provided in the order, the name
and mailing address of an official of the IV-D agency may be
substituted for the mailing address of any alternate recipient, a
reasonable description of the type of coverage provided to each
alternate recipient or the manner in which the type of coverage is determined and the time period for which the order applies.
(11) "Reasonably accessible health insurance coverage" means
that the coverage will provide payment for the primary health care
services within a 45-mile radius or with a 45-minute drive from the
child's primary residence.
(12) "Reasonable costs" means the child's portion of the
medical insurance premiums not exceeding five percent of the gross
income of the parent who provides the coverage.
§48-12-102. Court-ordered medical support.
In every action to establish or modify an order which requires
the payment of child support, the court shall ascertain the ability
of each parent to provide medical care for the children of the
parties. In any temporary or final order establishing an award of
child support or any temporary or final order modifying a prior
order establishing an award of child support, the court shall order
one or more of the following: address the provision of medical
support through one or more of the following methods:
(1) The court shall order either parent or both parents to
provide insurance coverage for a child, if such insurance coverage
is available to that parent on a group basis through an employer,
multiemployer trust or through an employee's union. If similar
insurance coverage is available to both parents, the court shall
order the child to be insured under the insurance coverage which
provides more comprehensive benefits. If such insurance coverage
is not available at the time of the entry of the order, the order shall require that if such coverage thereafter becomes available to
either party, that party shall promptly notify the other party of
the availability of insurance coverage for that child. The court
shall determine whether appropriate medical insurance coverage as
defined in section one hundred one of this article is available to
either parent. If such insurance coverage exists, the court shall
order the appropriate parent to enroll the child in that coverage
and the cost of providing appropriate medical insurance shall be
entered on line 5b of worksheet A for the basic shared parenting
child support calculation as provided in section two hundred four,
article thirteen of this code or line 12b of worksheet B for the
extended shared parenting child support calculation as provided in
said section.
(2) If the court finds that insurance coverage is not
available to either parent on a group basis through an employer,
multiemployer trust or employees' union, or that the group insurer
is not accessible to the parties, the court may order either parent
or both parents to obtain insurance coverage which is otherwise
available at a reasonable cost.
(3) (2) Based upon the respective ability of the parent to
pay, the court may order either parent or both parents to be liable
for reasonable and necessary medical care for a child. The court
shall specify the proportion of the medical care for which each
party shall be responsible. If the court does not include the cost
of the medical insurance in the child support calculation, the court may order the other parent to contribute to the cost of the
premium through an award of medical support. If the amount of the
award of child support in the order is determined using the child
support guidelines, the court shall order that nonrecurring or
subsequently occurring uninsured medical expenses in excess of two
hundred fifty dollars per year per child shall be separately
divided between the parties in proportion to their adjusted gross
incomes.
(4) (3)
If insurance coverage is available, the court shall
also determine the amount of the annual deductible on insurance
coverage which is attributable to the children and designate the
proportion of the deductible which each party shall pay. If neither
parent currently has access to appropriate medical insurance
coverage, the court shall take the following actions:
(a) The court shall order the parties to provide appropriate
medical insurance coverage if it becomes available in the future;
and
(b) The court shall order the payment of cash medical support
by either or both parties. The amount of the cash medical support
to be awarded is within the discretion of the court but the total
of the cash medical support and cost of the insurance premiums
shall not exceed five percent of the payor's gross income.
(c) In setting a cash medical support award, the court may
consider the costs of uncovered medical expenses for the child, the
relative percentages of the parties' incomes or the cost to the government to provide medical coverage for the child.
(d) If the support obligor's adjusted gross income is less
than two hundred percent of the federal poverty level, the court
shall set the cash medical support amount at zero.
(e) Cash medical support shall be collected and enforced in
the same manner as child support payments.
(5) (4)
The order shall require the obligor to continue to
provide the Bureau for Child Support Enforcement with information
as to his or her employer's name and address and information as to
the availability of employer-related insurance programs providing
medical care coverage so long as the child continues to be eligible
to receive support.
§48-12-103. Cost of medical support considered in applying
support guidelines.
The cost of insurance coverage shall be considered by the
court in applying the child support guidelines provided for in
article 13-101, et seq. [§§ 48-13-101 et seq.]. The Bureau for
Child Support Enforcement or the parties to the case may bring a
petition to modify the medical support obligations upon
notification of any new source of insurance coverage or any change
in circumstances as set forth in section one hundred six, article
fourteen of this chapter.
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