BILL REQ. #: H-4225.1
State of Washington | 62nd Legislature | 2012 Regular Session |
READ FIRST TIME 02/07/12.
AN ACT Relating to furthering state implementation of the health benefit exchange and related provisions of the affordable care act; amending RCW 43.71.020, 43.71.030, 43.71.060, 48.42.010, 48.42.020, 48.41.060, 48.41.110, and 48.41.170; reenacting and amending RCW 48.43.005; adding new sections to chapter 48.43 RCW; adding new sections to chapter 43.71 RCW; adding a new section to chapter 70.47 RCW; adding new sections to chapter 48.41 RCW; repealing RCW 48.43.018, 48.41.020, 48.41.100, and 48.41.200; prescribing penalties; providing an effective date; and declaring an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 48.43.005 and 2011 c 315 s 2 and 2011 c 314 s 3 are
each reenacted and amended to read as follows:
Unless otherwise specifically provided, the definitions in this
section apply throughout this chapter.
(1) "Adjusted community rate" means the rating method used to
establish the premium for health plans adjusted to reflect actuarially
demonstrated differences in utilization or cost attributable to
geographic region, age, family size, and use of wellness activities.
(2) "Adverse benefit determination" means a denial, reduction, or
termination of, or a failure to provide or make payment, in whole or in
part, for a benefit, including a denial, reduction, termination, or
failure to provide or make payment that is based on a determination of
an enrollee's or applicant's eligibility to participate in a plan, and
including, with respect to group health plans, a denial, reduction, or
termination of, or a failure to provide or make payment, in whole or in
part, for a benefit resulting from the application of any utilization
review, as well as a failure to cover an item or service for which
benefits are otherwise provided because it is determined to be
experimental or investigational or not medically necessary or
appropriate.
(3) "Applicant" means a person who applies for enrollment in an
individual health plan as the subscriber or an enrollee, or the
dependent or spouse of a subscriber or enrollee.
(4) "Basic health plan" means the plan described under chapter
70.47 RCW, as revised from time to time.
(5) "Basic health plan model plan" means a health plan as required
in RCW 70.47.060(2)(e).
(6) "Basic health plan services" means that schedule of covered
health services, including the description of how those benefits are to
be administered, that are required to be delivered to an enrollee under
the basic health plan, as revised from time to time.
(7) "Board" means the governing board of the Washington health
benefit exchange established in chapter 43.71 RCW.
(8)(a) For grandfathered health benefit plans issued before January
1, 2014, and renewed thereafter, "catastrophic health plan" means:
(((a))) (i) In the case of a contract, agreement, or policy
covering a single enrollee, a health benefit plan requiring a calendar
year deductible of, at a minimum, one thousand seven hundred fifty
dollars and an annual out-of-pocket expense required to be paid under
the plan (other than for premiums) for covered benefits of at least
three thousand five hundred dollars, both amounts to be adjusted
annually by the insurance commissioner; and
(((b))) (ii) In the case of a contract, agreement, or policy
covering more than one enrollee, a health benefit plan requiring a
calendar year deductible of, at a minimum, three thousand five hundred
dollars and an annual out-of-pocket expense required to be paid under
the plan (other than for premiums) for covered benefits of at least six
thousand dollars, both amounts to be adjusted annually by the insurance
commissioner((; or)).
(c) Any health benefit plan that provides benefits for hospital
inpatient and outpatient services, professional and prescription drugs
provided in conjunction with such hospital inpatient and outpatient
services, and excludes or substantially limits outpatient physician
services and those services usually provided in an office setting
(b) In July 2008, and in each July thereafter, the insurance
commissioner shall adjust the minimum deductible and out-of-pocket
expense required for a plan to qualify as a catastrophic plan to
reflect the percentage change in the consumer price index for medical
care for a preceding twelve months, as determined by the United States
department of labor. The adjusted amount shall apply on the following
January 1st.
(c) For health benefit plans issued on or after January 1, 2014,
"catastrophic health plan" means:
(i) A health benefit plan that meets the definition of catastrophic
plan set forth in section 1302(e) of P.L. 111-148 of 2010, as amended;
or
(ii) A health benefit plan offered outside the exchange marketplace
that requires a calendar year deductible or out-of-pocket expenses
under the plan, other than for premiums, for covered benefits, that
meets or exceeds the commissioner's annual adjustment under (b) of this
subsection.
(((8))) (9) "Certification" means a determination by a review
organization that an admission, extension of stay, or other health care
service or procedure has been reviewed and, based on the information
provided, meets the clinical requirements for medical necessity,
appropriateness, level of care, or effectiveness under the auspices of
the applicable health benefit plan.
(((9))) (10) "Concurrent review" means utilization review conducted
during a patient's hospital stay or course of treatment.
(((10))) (11) "Covered person" or "enrollee" means a person covered
by a health plan including an enrollee, subscriber, policyholder,
beneficiary of a group plan, or individual covered by any other health
plan.
(((11))) (12) "Dependent" means, at a minimum, the enrollee's legal
spouse and dependent children who qualify for coverage under the
enrollee's health benefit plan.
(((12))) (13) "Emergency medical condition" means a medical
condition manifesting itself by acute symptoms of sufficient severity,
including severe pain, such that a prudent layperson, who possesses an
average knowledge of health and medicine, could reasonably expect the
absence of immediate medical attention to result in a condition (a)
placing the health of the individual, or with respect to a pregnant
woman, the health of the woman or her unborn child, in serious
jeopardy, (b) serious impairment to bodily functions, or (c) serious
dysfunction of any bodily organ or part.
(((13))) (14) "Emergency services" means a medical screening
examination, as required under section 1867 of the social security act
(42 U.S.C. 1395dd), that is within the capability of the emergency
department of a hospital, including ancillary services routinely
available to the emergency department to evaluate that emergency
medical condition, and further medical examination and treatment, to
the extent they are within the capabilities of the staff and facilities
available at the hospital, as are required under section 1867 of the
social security act (42 U.S.C. 1395dd) to stabilize the patient.
Stabilize, with respect to an emergency medical condition, has the
meaning given in section 1867(e)(3) of the social security act (42
U.S.C. 1395dd(e)(3)).
(((14))) (15) "Employee" has the same meaning given to the term, as
of January 1, 2008, under section 3(6) of the federal employee
retirement income security act of 1974.
(((15))) (16) "Enrollee point-of-service cost-sharing" means
amounts paid to health carriers directly providing services, health
care providers, or health care facilities by enrollees and may include
copayments, coinsurance, or deductibles.
(((16))) (17) "Exchange" means the Washington health benefit
exchange established under chapter 43.71 RCW.
(18) "Final external review decision" means a determination by an
independent review organization at the conclusion of an external
review.
(((17))) (19) "Final internal adverse benefit determination" means
an adverse benefit determination that has been upheld by a health plan
or carrier at the completion of the internal appeals process, or an
adverse benefit determination with respect to which the internal
appeals process has been exhausted under the exhaustion rules described
in RCW 48.43.530 and 48.43.535.
(((18))) (20) "Grandfathered health plan" means a group health plan
or an individual health plan that under section 1251 of the patient
protection and affordable care act, P.L. 111-148 (2010) and as amended
by the health care and education reconciliation act, P.L. 111-152
(2010) is not subject to subtitles A or C of the act as amended.
(((19))) (21) "Grievance" means a written complaint submitted by or
on behalf of a covered person regarding: (a) Denial of payment for
medical services or nonprovision of medical services included in the
covered person's health benefit plan, or (b) service delivery issues
other than denial of payment for medical services or nonprovision of
medical services, including dissatisfaction with medical care, waiting
time for medical services, provider or staff attitude or demeanor, or
dissatisfaction with service provided by the health carrier.
(((20))) (22) "Health care facility" or "facility" means hospices
licensed under chapter 70.127 RCW, hospitals licensed under chapter
70.41 RCW, rural health care facilities as defined in RCW 70.175.020,
psychiatric hospitals licensed under chapter 71.12 RCW, nursing homes
licensed under chapter 18.51 RCW, community mental health centers
licensed under chapter 71.05 or 71.24 RCW, kidney disease treatment
centers licensed under chapter 70.41 RCW, ambulatory diagnostic,
treatment, or surgical facilities licensed under chapter 70.41 RCW,
drug and alcohol treatment facilities licensed under chapter 70.96A
RCW, and home health agencies licensed under chapter 70.127 RCW, and
includes such facilities if owned and operated by a political
subdivision or instrumentality of the state and such other facilities
as required by federal law and implementing regulations.
(((21))) (23) "Health care provider" or "provider" means:
(a) A person regulated under Title 18 or chapter 70.127 RCW, to
practice health or health-related services or otherwise practicing
health care services in this state consistent with state law; or
(b) An employee or agent of a person described in (a) of this
subsection, acting in the course and scope of his or her employment.
(((22))) (24) "Health care service" means that service offered or
provided by health care facilities and health care providers relating
to the prevention, cure, or treatment of illness, injury, or disease.
(((23))) (25) "Health carrier" or "carrier" means a disability
insurer regulated under chapter 48.20 or 48.21 RCW, a health care
service contractor as defined in RCW 48.44.010, or a health maintenance
organization as defined in RCW 48.46.020, and includes "issuers" as
that term is used in the patient protection and affordable care act
(P.L. 111-148).
(((24))) (26) "Health plan" or "health benefit plan" means any
policy, contract, or agreement offered by a health carrier to provide,
arrange, reimburse, or pay for health care services except the
following:
(a) Long-term care insurance governed by chapter 48.84 or 48.83
RCW;
(b) Medicare supplemental health insurance governed by chapter
48.66 RCW;
(c) Coverage supplemental to the coverage provided under chapter
55, Title 10, United States Code;
(d) Limited health care services offered by limited health care
service contractors in accordance with RCW 48.44.035;
(e) Disability income;
(f) Coverage incidental to a property/casualty liability insurance
policy such as automobile personal injury protection coverage and
homeowner guest medical;
(g) Workers' compensation coverage;
(h) Accident only coverage;
(i) Specified disease or illness-triggered fixed payment insurance,
hospital confinement fixed payment insurance, or other fixed payment
insurance offered as an independent, noncoordinated benefit;
(j) Employer-sponsored self-funded health plans;
(k) Dental only and vision only coverage; and
(l) Plans deemed by the insurance commissioner to have a short-term
limited purpose or duration, or to be a student-only plan that is
guaranteed renewable while the covered person is enrolled as a regular
full-time undergraduate or graduate student at an accredited higher
education institution, after a written request for such classification
by the carrier and subsequent written approval by the insurance
commissioner.
(((25))) (27) "Material modification" means a change in the
actuarial value of the health plan as modified of more than five
percent but less than fifteen percent.
(((26))) (28) "Open enrollment" means a period of time as defined
in rule to be held at the same time each year, during which applicants
may enroll in a carrier's individual health benefit plan without being
subject to health screening or otherwise required to provide evidence
of insurability as a condition for enrollment.
(((27))) (29) "Preexisting condition" means any medical condition,
illness, or injury that existed any time prior to the effective date of
coverage.
(((28))) (30) "Premium" means all sums charged, received, or
deposited by a health carrier as consideration for a health plan or the
continuance of a health plan. Any assessment or any "membership,"
"policy," "contract," "service," or similar fee or charge made by a
health carrier in consideration for a health plan is deemed part of the
premium. "Premium" shall not include amounts paid as enrollee point-of-service cost-sharing.
(((29))) (31) "Review organization" means a disability insurer
regulated under chapter 48.20 or 48.21 RCW, health care service
contractor as defined in RCW 48.44.010, or health maintenance
organization as defined in RCW 48.46.020, and entities affiliated with,
under contract with, or acting on behalf of a health carrier to perform
a utilization review.
(((30))) (32) "Small employer" or "small group" means any person,
firm, corporation, partnership, association, political subdivision,
sole proprietor, or self-employed individual that is actively engaged
in business that employed an average of at least one but no more than
fifty employees, during the previous calendar year and employed at
least one employee on the first day of the plan year, is not formed
primarily for purposes of buying health insurance, and in which a bona
fide employer-employee relationship exists. In determining the number
of employees, companies that are affiliated companies, or that are
eligible to file a combined tax return for purposes of taxation by this
state, shall be considered an employer. Subsequent to the issuance of
a health plan to a small employer and for the purpose of determining
eligibility, the size of a small employer shall be determined annually.
Except as otherwise specifically provided, a small employer shall
continue to be considered a small employer until the plan anniversary
following the date the small employer no longer meets the requirements
of this definition. A self-employed individual or sole proprietor who
is covered as a group of one must also: (a) Have been employed by the
same small employer or small group for at least twelve months prior to
application for small group coverage, and (b) verify that he or she
derived at least seventy-five percent of his or her income from a trade
or business through which the individual or sole proprietor has
attempted to earn taxable income and for which he or she has filed the
appropriate internal revenue service form 1040, schedule C or F, for
the previous taxable year, except a self-employed individual or sole
proprietor in an agricultural trade or business, must have derived at
least fifty-one percent of his or her income from the trade or business
through which the individual or sole proprietor has attempted to earn
taxable income and for which he or she has filed the appropriate
internal revenue service form 1040, for the previous taxable year.
(((31))) (33) "Special enrollment" means a defined period of time
of not less than thirty-one days, triggered by a specific qualifying
event experienced by the applicant, during which applicants may enroll
in the carrier's individual health benefit plan without being subject
to health screening or otherwise required to provide evidence of
insurability as a condition for enrollment.
(((32))) (34) "Standard health questionnaire" means the standard
health questionnaire designated under chapter 48.41 RCW.
(((33))) (35) "Utilization review" means the prospective,
concurrent, or retrospective assessment of the necessity and
appropriateness of the allocation of health care resources and services
of a provider or facility, given or proposed to be given to an enrollee
or group of enrollees.
(((34))) (36) "Wellness activity" means an explicit program of an
activity consistent with department of health guidelines, such as,
smoking cessation, injury and accident prevention, reduction of alcohol
misuse, appropriate weight reduction, exercise, automobile and
motorcycle safety, blood cholesterol reduction, and nutrition education
for the purpose of improving enrollee health status and reducing health
service costs.
Sec. 2 RCW 43.71.020 and 2011 c 317 s 3 are each amended to read
as follows:
(1) The Washington health benefit exchange is established and
constitutes a public-private partnership separate and distinct from the
state, exercising functions delineated in chapter 317, Laws of 2011.
By January 1, 2014, the exchange shall operate consistent with the
affordable care act subject to statutory authorization. The exchange
shall have a governing board consisting of persons with expertise in
the Washington health care system and private and public health care
coverage. The initial membership of the board shall be appointed as
follows:
(a) By October 1, 2011, each of the two largest caucuses in both
the house of representatives and the senate shall submit to the
governor a list of five nominees who are not legislators or employees
of the state or its political subdivisions, with no caucus submitting
the same nominee.
(i) The nominations from the largest caucus in the house of
representatives must include at least one employee benefit specialist;
(ii) The nominations from the second largest caucus in the house of
representatives must include at least one health economist or actuary;
(iii) The nominations from the largest caucus in the senate must
include at least one representative of health consumer advocates;
(iv) The nominations from the second largest caucus in the senate
must include at least one representative of small business;
(v) The remaining nominees must have demonstrated and acknowledged
expertise in at least one of the following areas: Individual health
care coverage, small employer health care coverage, health benefits
plan administration, health care finance and economics, actuarial
science, or administering a public or private health care delivery
system.
(b) By December 15, 2011, the governor shall appoint two members
from each list submitted by the caucuses under (a) of this subsection.
The appointments made under this subsection (1)(b) must include at
least one employee benefits specialist, one health economist or
actuary, one representative of small business, and one representative
of health consumer advocates. The remaining four members must have a
demonstrated and acknowledged expertise in at least one of the
following areas: Individual health care coverage, small employer
health care coverage, health benefits plan administration, health care
finance and economics, actuarial science, or administering a public or
private health care delivery system.
(c) By December 15, 2011, the governor shall appoint a ninth member
to serve as chair. The chair may not be an employee of the state or
its political subdivisions. The chair shall serve as a nonvoting
member except in the case of a tie. The chair shall serve at the
pleasure of the governor.
(d) The following members shall serve as nonvoting, ex officio
members of the board:
(i) The insurance commissioner or his or her designee; and
(ii) The administrator of the health care authority, or his or her
designee.
(2) Initial members of the board shall serve staggered terms not to
exceed four years. Members appointed thereafter shall serve two-year
terms.
(3) A member of the board whose term has expired or who otherwise
leaves the board shall be replaced by gubernatorial appointment. When
the person leaving was nominated by one of the caucuses of the house of
representatives or the senate, his or her replacement shall be
appointed from a list of five nominees submitted by that caucus within
thirty days after the person leaves. If the member to be replaced is
the chair, the governor shall appoint a new chair within thirty days
after the vacancy occurs. A person appointed to replace a member who
leaves the board prior to the expiration of his or her term shall serve
only the duration of the unexpired term. Members of the board may be
reappointed to multiple terms.
(4)(a) No board member may be appointed if his or her participation
in the decisions of the board could benefit his or her own financial
interests or the financial interests of an entity he or she represents.
A board member who develops such a conflict of interest shall resign or
be removed from the board.
(b) A board member may lobby on issues related to the exchange or
the state's implementation of the affordable care act, but only to:
(i) Provide information or communicating on matters pertaining to
official board business to any elected official; or (ii) advocate the
official position or interests of the board to any elected official.
A board member may communicate with a member of the legislature, on
issues related to the exchange or the state's implementation of the
affordable care act, on the request of that member or communicate to
the legislature, through proper board-approved channels, requests for
legislative action or appropriations deemed necessary for the efficient
conduct of the exchange or actually made in the proper performance of
his or her duties as a board member. For purposes of this subsection,
"lobby" has the same meaning as in RCW 42.17A.005.
(5) Members of the board must be reimbursed for their travel
expenses while on official business in accordance with RCW 43.03.050
and 43.03.060. The board shall prescribe rules for the conduct of its
business. Meetings of the board are at the call of the chair.
(6) The exchange and the board are subject only to the provisions
of chapter 42.30 RCW, the open public meetings act, and chapter 42.56
RCW, the public records act, and not to any other law or regulation
generally applicable to state agencies. Consistent with the open
public meetings act, the board may hold executive sessions to consider
proprietary or confidential nonpublished information.
(7)(a) The board shall establish an advisory committee to allow for
the views of the health care industry and other stakeholders to be
heard in the operation of the health benefit exchange.
(b) The board may establish technical advisory committees or seek
the advice of technical experts when necessary to execute the powers
and duties included in chapter 317, Laws of 2011.
(8) Members of the board are not civilly or criminally liable and
may not have any penalty or cause of action of any nature arise against
them for any action taken or not taken, including any discretionary
decision or failure to make a discretionary decision, when the action
or inaction is done in good faith and in the performance of the powers
and duties under chapter 317, Laws of 2011. Nothing in this section
prohibits legal actions against the board to enforce the board's
statutory or contractual duties or obligations.
(9) In recognition of the government-to-government relationship
between the state of Washington and the federally recognized tribes in
the state of Washington, the board shall consult with the American
Indian health commission.
Sec. 3 RCW 43.71.030 and 2011 c 317 s 4 are each amended to read
as follows:
(1) The exchange may, consistent with the purposes of this chapter:
(a) Sue and be sued in its own name; (b) make and execute agreements,
contracts, and other instruments, with any public or private person or
entity; (c) employ, contract with, or engage personnel; (d) pay
administrative costs; and (e) accept grants, donations, loans of funds,
and contributions in money, services, materials or otherwise, from the
United States or any of its agencies, from the state of Washington and
its agencies or from any other source, and use or expend those moneys,
services, materials, or other contributions.
(2) ((The powers and duties of the exchange and the board are
limited to those necessary to apply for and administer grants,
establish information technology infrastructure, and undertake
additional administrative functions necessary to begin operation of the
exchange by January 1, 2014. Any actions relating to substantive
issues included in RCW 43.71.040 must be consistent with statutory
direction on those issues.)) The exchange shall report its activities
and status to the governor and the legislature as requested, and no
less often than annually.
Sec. 4 RCW 43.71.060 and 2011 c 317 s 7 are each amended to read
as follows:
The health benefit exchange account is created in the custody of
the state treasurer. All receipts from federal grants received under
the affordable care act shall be deposited into the account.
Expenditures from the account may be used only for purposes consistent
with the grants. Until March 15, 2012, only the administrator of the
health care authority, or his or her designee, may authorize
expenditures from the account. Beginning March 15, 2012, only the
board of the Washington health benefit exchange, or its designee, may
authorize expenditures from the account. The account is subject to
allotment procedures under chapter 43.88 RCW, but an appropriation is
not required for expenditures.
NEW SECTION. Sec. 5 A new section is added to chapter 48.43 RCW
to read as follows:
(1) After making a finding under subsection (2) of this section,
the commissioner shall adopt rules prohibiting a carrier from offering
outside the exchange a health benefit plan that meets the definition of
a bronze level qualified health plan under section 1302 of P.L. 111-148
of 2010, as amended, unless the carrier offers the same plan inside the
exchange.
(2) The commissioner may not adopt rules under subsection (1) of
this section unless he or she finds, in consultation with the board,
that:
(a) The exchange is experiencing significant adverse selection or,
based upon current and projected health plan enrollment patterns, the
exchange is likely to experience significant adverse selection within
the next twelve months; or
(b) Consumers do not have an adequate choice of health plan options
among the actuarial value tiers specified in section 1302 of P.L. 111-148 in the exchange.
(3) Any rules adopted under this section may not go into effect
until one full regular session of the legislature has passed following
their adoption.
NEW SECTION. Sec. 6 A new section is added to chapter 48.43 RCW
to read as follows:
All health plans, other than catastrophic health plans, offered
outside of the exchange must conform with the actuarial value tiers
specified in section 1302 of P.L. 111-148, as amended, as bronze,
silver, gold, or platinum.
NEW SECTION. Sec. 7 A new section is added to chapter 43.71 RCW
to read as follows:
(1) The board shall certify a plan as a qualified health plan to be
offered through the exchange if the plan:
(a) Is determined by the insurance commissioner to meet the
requirements of Title 48 RCW and rules adopted by the commissioner
pursuant to chapter 34.05 RCW;
(b) Is determined by the board to meet the requirements of the
affordable care act for certification as a qualified health plan; and
(c) Is determined by the board to include tribal clinics and urban
Indian clinics as essential community providers in the plan's provider
network.
(2) Consistent with federal law, the board shall allow a stand-alone dental plan to offer coverage in the exchange.
(3) Upon request by the board, a state agency shall provide
information to the board for its use in determining if the requirements
under subsection (1)(b) or (c) of this section have been met. Unless
the agency and the board agree to a later date, the agency shall
provide the information within sixty days of the request. The exchange
shall reimburse the agency for the cost of compiling and providing the
requested information within one hundred eighty days of its receipt.
(4) A decision by the board denying a request to certify or
recertify a plan as a qualified health plan may be appealed according
to procedures adopted by the board.
NEW SECTION. Sec. 8 A new section is added to chapter 43.71 RCW
to read as follows:
The board shall establish a rating system for qualified health
plans to assist consumers in evaluating plan choices in the exchange.
Rating factors established by the board must include, but are not
limited to:
(1) Affordability with respect to premiums, deductibles, and point-of-service cost-sharing;
(2) Provider reimbursement methods that incentivize chronic care
management and care coordination for enrollees with complex, high-cost,
or multiple chronic conditions;
(3) Provider reimbursement methods that reward health homes that,
by using chronic care management, reduce emergency department and
inpatient care;
(4) Promotion of appropriate primary care and preventive services
utilization;
(5) High standards for provider network adequacy, including
consumer choice of providers and service locations and robust provider
participation intended to improve access to underserved populations
through participation of essential community providers, family planning
providers and pediatric providers; and
(6) Protection of the privacy of patients' personal health
information.
Sec. 9 RCW 48.42.010 and 1985 c 264 s 15 are each amended to read
as follows:
(1) Notwithstanding any other provision of law, and except as
provided in this chapter, any person or other entity which provides
coverage in this state for life insurance, annuities, loss of time,
medical, surgical, chiropractic, physical therapy, speech pathology,
audiology, professional mental health, dental, hospital, or optometric
expenses, whether the coverage is by direct payment, reimbursement, the
providing of services, or otherwise, shall be subject to the authority
of the state insurance commissioner, unless the person or other entity
shows that while providing the services it is subject to the
jurisdiction and regulation of another agency of this state, any
subdivisions thereof, or the federal government.
(2) "Another agency of this state, any subdivision thereof, or the
federal government" does not include the Washington health benefit
exchange under chapter 43.71 RCW or P.L. 111-148 of 2010, as amended.
Sec. 10 RCW 48.42.020 and 1983 c 36 s 2 are each amended to read
as follows:
(1) A person or entity may show that it is subject to the
jurisdiction and regulation of another agency of this state, any
subdivision thereof, or the federal government, by providing to the
insurance commissioner the appropriate certificate, license, or other
document issued by the other governmental agency which permits or
qualifies it to provide the coverage as defined in RCW 48.42.010.
(2) "Another agency of this state, any subdivision thereof, or the
federal government" does not include the Washington health benefit
exchange under chapter 43.71 RCW or P.L. 111-148 of 2010, as amended.
NEW SECTION. Sec. 11 A new section is added to chapter 48.43 RCW
to read as follows:
Certification by the Washington health benefit exchange of a plan
as a qualified health plan, or of a carrier as a qualified issuer, does
not exempt the plan or carrier from any of the requirements of this
title or rules adopted by the commissioner pursuant to chapter 34.05
RCW.
NEW SECTION. Sec. 12 A new section is added to chapter 48.43 RCW
to read as follows:
(1) Consistent with federal law, the commissioner, in consultation
with the board and the health care authority, shall, by rule, select a
benchmark plan for purposes of establishing the essential health
benefits in Washington state under P.L. 111-148 of 2010, as amended.
The commissioner shall make his or her selection from the following
options:
(a) The three largest small group plans in the state by enrollment;
or
(b) The largest health maintenance organization in the state's
commercial market by enrollment.
(2) If the essential health benefits benchmark plan does not
include all of the ten benefit categories specified by section 1302 of
P.L. 111-148, as amended, the commissioner, in consultation with the
board and the health care authority, shall, by rule, supplement the
benchmark plan benefits as needed to meet the requirements of section
1302.
(3) A health plan required to offer the essential health benefits
under P.L. 111-148 of 2010, as amended, may not be offered in the state
unless the commissioner finds that it is substantially equal to the
benchmark plan. When making this determination, the commissioner must
ensure that the plan:
(a) Covers the ten essential health benefits categories specified
in section 1302 of P.L. 111-148 of 2010, as amended;
(b) Does not create a significant risk of biased selection based on
health status; and
(c) Contains meaningful benefits in each of the ten essential
health benefits categories specified by section 1302 of P.L. 111-148 of
2010, as amended.
NEW SECTION. Sec. 13 A new section is added to chapter 70.47 RCW
to read as follows:
(1) The director of the health care authority shall provide the
necessary certifications to the secretary of the federal department of
health and human services under section 1331 of P.L. 111-148 of 2010,
as amended, for the purposes of Washington state's adoption of the
federal basic health program option, unless, by July 1, 2012, the
governor finds that:
(a) Anticipated federal funding under section 1331 will be
insufficient, absent any additional funding from the state, to provide
at least the essential health benefits to eligible individuals under
section 1331 during the period of calendar years 2014 through 2019:
(i) At enrollee premium levels below the levels that would be
applicable to persons with income between one hundred thirty-four and
two hundred percent of the federal poverty level through the Washington
health benefits exchange;
(ii) Using health plan payment rates sufficient to ensure access to
care for enrollees and incentivize an adequate provider network, in
conjunction with innovative payment methodologies and standard health
plan performance measures that will create incentives for the use of
effective cost containment and health care quality strategies; and
(iii) Assuming reasonable basic health program administrative costs
and the potential impact of federal basic health plan program funding
reconciliation under section 1331(d) of the affordable care act; and
(b) Sufficient funds are available to support the design and
development work necessary for the program to begin providing health
coverage to enrollees beginning January 1, 2014.
(2) Prior to making this finding, the director shall:
(a) Actively consult with the board of the Washington health
benefit exchange, the office of the insurance commissioner, consumer
advocates, provider organizations, carriers, and other interested
organizations;
(b) Consider any available objective analysis specific to
Washington state, by an independent nationally recognized consultant
that has been actively engaged in analysis and economic modeling of the
federal basic health program option for multiple states.
(3) The director shall report any findings and supporting analysis
made under this section to the relevant policy and fiscal committees of
the legislature.
(4) If implemented, the federal basic health program must be guided
by the following principles:
(a) Meeting the minimum state certification standards in section
1331 of the federal patient protection and affordable care act;
(b) To the extent allowed by the federal department of health and
human services, twelve-month continuous eligibility for the basic
health program, and corresponding twelve-month continuous enrollment in
standard health plans by enrollees; or, in lieu of twelve-month
continuous eligibility, financing mechanisms that enable enrollees to
remain with a plan for the entire plan year;
(c) Achieving an appropriate balance between:
(i) Premiums and cost-sharing minimized to increase the
affordability of insurance coverage;
(ii) Standard health plan contracting requirements that minimize
plan and provider administrative costs, while holding standard health
plans accountable for performance and enrollee health outcomes, and
ensuring adequate enrollee notice and appeal rights; and
(iii) Health plan payment rates that are sufficient to ensure
access to care for enrollees and incentivize an adequate provider
network, in conjunction with innovative payment methodologies and
standard health plan performance measures that will create incentives
for the use of effective cost containment and health care quality; and
(d) Transparency in program administration, including active and
ongoing consultation with basic health program enrollees and interested
organizations.
NEW SECTION. Sec. 14 A new section is added to chapter 48.43 RCW
to read as follows:
(1) The commissioner, in consultation with the board, shall adopt
rules establishing the reinsurance program required by P.L. 111-148 of
2010, as amended. Consistent with federal law, the rules must, at a
minimum, establish:
(a) A mechanism to collect reinsurance contribution funds;
(b) A reinsurance payment formula; and
(c) A mechanism to disburse reinsurance payments.
(2)(a) The rules must compensate carriers offering health plans in
the exchange for the possibility of increased risk in the exchange and
incentivize carrier participation in the exchange by making any or all
of the following modifications to the reinsurance payment formula
established by federal law:
(i) Establishing a lower attachment point inside the exchange than
outside the exchange;
(ii) Establishing a higher reinsurance cap inside the exchange than
outside the exchange or eliminating the reinsurance cap inside the
exchange; or
(iii) Establishing a higher coinsurance rate inside the exchange
than outside the exchange.
(b) The commissioner may adjust the rules adopted under this
subsection (2) as needed to preserve a healthy market both inside and
outside of the exchange.
(3) The rules adopted by the commissioner under this section may
not designate the reinsurance entity, unless the commissioner is
specifically authorized to do so by statute.
Sec. 15 RCW 48.41.060 and 2011 c 314 s 13 are each amended to
read as follows:
(1) The board shall have the general powers and authority granted
under the laws of this state to insurance companies, health care
service contractors, and health maintenance organizations, licensed or
registered to offer or provide the kinds of health coverage defined
under this title. In addition thereto, the board shall:
(a) ((Designate or establish the standard health questionnaire to
be used under RCW 48.41.100 and 48.43.018, including the form and
content of the standard health questionnaire and the method of its
application. The questionnaire must provide for an objective
evaluation of an individual's health status by assigning a discreet
measure, such as a system of point scoring to each individual. The
questionnaire must not contain any questions related to pregnancy, and
pregnancy shall not be a basis for coverage by the pool. The
questionnaire shall be designed such that it is reasonably expected to
identify the eight percent of persons who are the most costly to treat
who are under individual coverage in health benefit plans, as defined
in RCW 48.43.005, in Washington state or are covered by the pool, if
applied to all such persons;)) Establish appropriate rates, rate schedules, rate
adjustments, expense allowances, claim reserve formulas and any other
actuarial functions appropriate to the operation of the pool. Rates
shall not be unreasonable in relation to the coverage provided, the
risk experience, and expenses of providing the coverage. Rates and
rate schedules may be adjusted for appropriate risk factors such as age
and area variation in claim costs and shall take into consideration
appropriate risk factors in accordance with established actuarial
underwriting practices consistent with Washington state individual plan
rating requirements under RCW 48.44.022 and 48.46.064;
(b) Obtain from a member of the American academy of actuaries, who
is independent of the board, a certification that the standard health
questionnaire meets the requirements of (a) of this subsection;
(c) Approve the standard health questionnaire and any modifications
needed to comply with this chapter. The standard health questionnaire
shall be submitted to an actuary for certification, modified as
necessary, and approved at least every thirty-six months unless at the
time when certification is required the pool will be discontinued
before the end of the succeeding thirty-six month period. The
designation and approval of the standard health questionnaire by the
board shall not be subject to review and approval by the commissioner.
The standard health questionnaire or any modification thereto shall not
be used until ninety days after public notice of the approval of the
questionnaire or any modification thereto, except that the initial
standard health questionnaire approved for use by the board after March
23, 2000, may be used immediately following public notice of such
approval;
(d)
(((e))) (b)(i) Assess members of the pool in accordance with the
provisions of this chapter, and make advance interim assessments as may
be reasonable and necessary for the organizational or interim operating
expenses. Any interim assessments will be credited as offsets against
any regular assessments due following the close of the year.
(ii) Self-funded multiple employer welfare arrangements are subject
to assessment under this subsection only in the event that assessments
are not preempted by the employee retirement income security act of
1974, as amended, 29 U.S.C. Sec. 1001 et seq. The arrangements and the
commissioner shall initially request an advisory opinion from the
United States department of labor or obtain a declaratory ruling from
a federal court on the legality of imposing assessments on these
arrangements before imposing the assessment. Once the legality of the
assessments has been determined, the multiple employer welfare
arrangement certified by the insurance commissioner must begin payment
of these assessments.
(iii) If there has not been a final determination of the legality
of these assessments, then beginning on the earlier of (A) the date the
fourth multiple employer welfare arrangement has been certified by the
insurance commissioner, or (B) April 1, 2006, the arrangement shall
deposit the assessments imposed by this subsection into an interest
bearing escrow account maintained by the arrangement. Upon a final
determination that the assessments are not preempted by the employee
retirement income security act of 1974, as amended, 29 U.S.C. Sec. 1001
et seq., all funds in the interest bearing escrow account shall be
transferred to the board;
(((f))) (c) Issue policies of health coverage in accordance with
the requirements of this chapter; and
(((g) Establish procedures for the administration of the premium
discount provided under RCW 48.41.200(3)(a)(iii);)) (d) Provide certification to the commissioner when
assessments will exceed the threshold level established in RCW
48.41.037.
(h) Contract with the Washington state health care authority for
the administration of the premium discounts provided under RCW
48.41.200(3)(a) (i) and (ii);
(i) Set a reasonable fee to be paid to an insurance producer
licensed in Washington state for submitting an acceptable application
for enrollment in the pool; and
(j)
(2) In addition thereto, the board may:
(a) Enter into contracts as are necessary or proper to carry out
the provisions and purposes of this chapter including the authority,
with the approval of the commissioner, to enter into contracts with
similar pools of other states for the joint performance of common
administrative functions, or with persons or other organizations for
the performance of administrative functions;
(b) Sue or be sued, including taking any legal action as necessary
to avoid the payment of improper claims against the pool or the
coverage provided by or through the pool;
(c) Appoint appropriate legal, actuarial, and other committees as
necessary to provide technical assistance in the operation of the pool,
policy, and other contract design, and any other function within the
authority of the pool; and
(d) Conduct periodic audits to assure the general accuracy of the
financial data submitted to the pool, and the board shall cause the
pool to have an annual audit of its operations by an independent
certified public accountant.
(3) Nothing in this section shall be construed to require or
authorize the adoption of rules under chapter 34.05 RCW.
Sec. 16 RCW 48.41.110 and 2011 c 315 s 6 are each amended to read
as follows:
(1) The pool shall offer one or more care management plans of
coverage. Such plans may, but are not required to, include point of
service features that permit participants to receive in-network
benefits or out-of-network benefits subject to differential cost
shares. The pool may incorporate managed care features into existing
plans.
(2) The administrator shall prepare a brochure outlining the
benefits and exclusions of pool policies in plain language. After
approval by the board, such brochure shall be made reasonably available
to participants or potential participants.
(3) The health insurance policies issued by the pool shall pay only
reasonable amounts for medically necessary eligible health care
services rendered or furnished for the diagnosis or treatment of
covered illnesses, injuries, and conditions. Eligible expenses are the
reasonable amounts for the health care services and items for which
benefits are extended under a pool policy.
(4) The pool shall offer at least two policies, one of which will
be a comprehensive policy that must comply with RCW 48.41.120 and must
at a minimum include the following services or related items:
(a) Hospital services, including charges for the most common
semiprivate room, for the most common private room if semiprivate rooms
do not exist in the health care facility, or for the private room if
medically necessary, including no less than a total of one hundred
eighty inpatient days in a calendar year, and no less than thirty days
inpatient care for alcohol, drug, or chemical dependency or abuse per
calendar year;
(b) Professional services including surgery for the treatment of
injuries, illnesses, or conditions, other than dental, which are
rendered by a health care provider, or at the direction of a health
care provider, by a staff of registered or licensed practical nurses,
or other health care providers;
(c) No less than twenty outpatient professional visits for the
diagnosis or treatment of alcohol, drug, or chemical dependency or
abuse rendered during a calendar year by a state-certified chemical
dependency program approved under chapter 70.96A RCW, or by one or more
physicians, psychologists, or community mental health professionals,
or, at the direction of a physician, by other qualified licensed health
care practitioners;
(d) Drugs and contraceptive devices requiring a prescription;
(e) Services of a skilled nursing facility, excluding custodial and
convalescent care, for not less than one hundred days in a calendar
year as prescribed by a physician;
(f) Services of a home health agency;
(g) Chemotherapy, radioisotope, radiation, and nuclear medicine
therapy;
(h) Oxygen;
(i) Anesthesia services;
(j) Prostheses, other than dental;
(k) Durable medical equipment which has no personal use in the
absence of the condition for which prescribed;
(l) Diagnostic x-rays and laboratory tests;
(m) Oral surgery including at least the following: Fractures of
facial bones; excisions of mandibular joints, lesions of the mouth,
lip, or tongue, tumors, or cysts excluding treatment for
temporomandibular joints; incision of accessory sinuses, mouth salivary
glands or ducts; dislocations of the jaw; plastic reconstruction or
repair of traumatic injuries occurring while covered under the pool;
and excision of impacted wisdom teeth;
(n) Maternity care services;
(o) Services of a physical therapist and services of a speech
therapist;
(p) Hospice services;
(q) Professional ambulance service to the nearest health care
facility qualified to treat the illness or injury;
(r) Mental health services pursuant to RCW 48.41.220; and
(s) Other medical equipment, services, or supplies required by
physician's orders and medically necessary and consistent with the
diagnosis, treatment, and condition.
(5) The board shall design and employ cost containment measures and
requirements such as, but not limited to, care coordination, provider
network limitations, preadmission certification, and concurrent
inpatient review which may make the pool more cost-effective.
(6) The pool benefit policy may contain benefit limitations,
exceptions, and cost shares such as copayments, coinsurance, and
deductibles that are consistent with managed care products, except that
differential cost shares may be adopted by the board for nonnetwork
providers under point of service plans. No limitation, exception, or
reduction may be used that would exclude coverage for any disease,
illness, or injury.
(7)(a) The pool may not reject an individual for health plan
coverage based upon preexisting conditions of the individual or deny,
exclude, or otherwise limit coverage for an individual's preexisting
health conditions; except that it shall impose a six-month benefit
waiting period for preexisting conditions for which medical advice was
given, for which a health care provider recommended or provided
treatment, or for which a prudent layperson would have sought advice or
treatment, within six months before the effective date of coverage.
The preexisting condition waiting period shall not apply to prenatal
care services or extend beyond December 31, 2013. The pool may not
avoid the requirements of this section through the creation of a new
rate classification or the modification of an existing rate
classification. Credit against the waiting period shall be as provided
in subsection (8) of this section.
(b) The pool shall not impose any preexisting condition waiting
period for any person under the age of nineteen.
(8)(a) Except as provided in (b) of this subsection, the pool shall
credit any preexisting condition waiting period in its plans for a
person who was enrolled at any time during the sixty-three day period
immediately preceding the date of application for the new pool plan.
For the person previously enrolled in a group health benefit plan, the
pool must credit the aggregate of all periods of preceding coverage not
separated by more than sixty-three days toward the waiting period of
the new health plan. For the person previously enrolled in an
individual health benefit plan other than a catastrophic health plan,
the pool must credit the period of coverage the person was continuously
covered under the immediately preceding health plan toward the waiting
period of the new health plan. For the purposes of this subsection, a
preceding health plan includes an employer-provided self-funded health
plan.
(b) The pool shall waive any preexisting condition waiting period
for a person who is an eligible individual as defined in section
2741(b) of the federal health insurance portability and accountability
act of 1996 (42 U.S.C. 300gg-41(b)).
(9) If an application is made for the pool policy as a result of
rejection by a carrier, then the date of application to the carrier,
rather than to the pool, should govern for purposes of determining
preexisting condition credit.
(10) The pool shall contract with organizations that provide care
management that has been demonstrated to be effective and shall
encourage enrollees who are eligible for care management services to
participate. The pool may encourage the use of shared decision making
and certified decision aids for preference-sensitive care areas.
Sec. 17 RCW 48.41.170 and 1987 c 431 s 17 are each amended to
read as follows:
The commissioner shall adopt rules pursuant to chapter 34.05 RCW
that((:)) implement this chapter.
(1) Provide for disclosure by the member of the availability of
insurance coverage from the pool; and
(2)
NEW SECTION. Sec. 18 A new section is added to chapter 48.41 RCW
to read as follows:
For policies renewed beginning January 1, 2014:
(1) Rates for pool coverage may be no more than the average
individual standard rate charged for coverage comparable to pool
coverage by the five largest members, measured in terms of individual
market enrollment, offering such coverages in the state. In the event
five members do not offer comparable coverage, rates for pool coverage
may be no more than the standard risk rate established using reasonable
actuarial techniques and must reflect anticipated experience and
expenses for such coverage in the individual market.
(2)(a) The pool shall reduce an enrollee's premium obligation as
needed to provide the enrollee with premium subsidies equivalent to
what he or she would have received in the exchange if the enrollee:
(i) Has a modified adjusted gross income below four hundred percent
of federal poverty level;
(ii) Is not enrolled in medicare; and
(iii) Does not have an offer of minimum essential coverage.
(b) Premium subsidies provided under this subsection shall be
funded through member assessments.
NEW SECTION. Sec. 19 A new section is added to chapter 48.41 RCW
to read as follows:
Only persons enrolled in a health benefit plan through the pool on
December 31, 2013, who do not disenroll after December 31, 2013, are
eligible for pool coverage.
NEW SECTION. Sec. 20 A new section is added to chapter 48.41 RCW
to read as follows:
(1) The pool may perform all or part of the risk management
functions in the federal patient protection and affordable care act if
authorized by statute.
(2) To further timely state implementation of the federal patient
protection and affordable care act in the state, the pool is authorized
to conduct preoperational and planning activities related to these
programs, including defining and implementing an appropriate legal
structure or structures to administer and coordinate these programs.
(3) Funding for the transitional reinsurance program as provided by
assessments pursuant to section 1341 of the federal patient protection
and affordable care act may be increased in this state by inclusion of
additional assessment amounts to cover the administrative costs of
operation of the reinsurance program including reimbursement of the
reasonable costs incurred by the pool for preoperational activities
undertaken pursuant to this section.
(4) The pool shall report on these activities to the appropriate
committees of the senate and house of representatives by December 15,
2012, and December 15, 2013.
NEW SECTION. Sec. 21 The following acts or parts of acts, as now
existing or hereafter amended, are each repealed, effective January 1,
2014:
(1) RCW 48.43.018 (Requirement to complete the standard health
questionnaire -- Exemptions -- Results) and 2010 c 277 s 1 & 2009 c 42 s 1;
(2) RCW 48.41.020 (Intent) and 2000 c 79 s 5 & 1987 c 431 s 2;
(3) RCW 48.41.100 (Eligibility for coverage) and 2011 c 315 s 5,
2011 c 314 s 15, 2009 c 555 s 3, 2007 c 259 s 30, 2001 c 196 s 3, 2000
c 79 s 12, 1995 c 34 s 5, 1989 c 121 s 7, & 1987 c 431 s 10; and
(4) RCW 48.41.200 (Rates -- Standard risk and maximum) and 2007 c 259
s 28, 2000 c 79 s 17, 1997 c 231 s 214, & 1987 c 431 s 20.
NEW SECTION. Sec. 22 If any provision of this act or its
application to any person or circumstance is held invalid, the
remainder of the act or the application of the provision to other
persons or circumstances is not affected.
NEW SECTION. Sec. 23 Sections 15, 17, and 19 of this act take
effect January 1, 2014.
NEW SECTION. Sec. 24 Sections 3 and 4 of this act are necessary
for the immediate preservation of the public peace, health, or safety,
or support of the state government and its existing public
institutions, and take effect immediately.