WSR 99-24-132

PROPOSED RULES

INSURANCE COMMISSIONER'S OFFICE


[ Insurance Commissioner Matter No. R 99-2 -- Filed December 1, 1999, 11:25 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 99-13-198.

Title of Rule: Managed care revisions.

Purpose: The primary purpose is to make corrections to chapter 284-43 WAC and address several issues related to interpretations of the existing rules. Some provisions of chapter 284-43 WAC need correction as a consequence of changes in federal and state laws. Finally, new problems have been raised by consumers, by the health care community, and by carriers relating to implementation of the rules contained in chapter 284-43 WAC.

Statutory Authority for Adoption: RCW 48.02.060, 48.18.120, 48.20.450, 48.20.460, 48.30.010, 48.44.050, 48.46.030, and 48.46.200.

Statute Being Implemented: RCW 48.44.020, 48.46.060, and 48.46.090.

Summary: Existing rules require health carriers to exercise responsibility for the actions of persons and organizations acting on behalf of the carrier. This standard is clarified by noting that carriers may not offer as a defense to violations of agency rules, that a person or an organization working for the carrier committed the offense. Carriers are required to comply with all state and federal laws relating to the acts and practices of carriers and may not engage in acts or practices that would prevent a person from exercising a right to coverage granted under any state or federal law. The definition of managed care is expanded to include all plans that restrict consumers to the use of participating providers. Whenever a consumer's choice of a particular primary care doctor would limit the consumer to a smaller number of doctors than all of the doctors in the network (a subnetwork), the consumer must be informed in advance of the providers who will not be available as a consequence of this choice. Health carriers must include in their "access plan" that is filed with the commissioner a description of the carrier's privacy policies and procedures. Technical changes are made to the network reporting requirements. The women's direct access rule is amended to clarify that maternity care and reproductive health include all pregnancy-related services. Carriers may not limit coverage by type of provider nor may the carrier limit coverage in a manner that has the effect of excluding a particular type of women's health care practitioner. Carriers may not impose prior authorization requirements on women's practitioners unless the same requirement is imposed upon all other types of providers performing the same type of service. Carriers may not permit participating providers to limit women to the use of a smaller number of providers (a subnetwork) than those providers under contract as participating providers for the health plan. These changes are made to ensure that women continue to enjoy the benefits granted by statute. Changes are made to rules governing portability of benefits and preexisting conditions to conform to federal requirements. With respect to portability of benefits, a carrier may not impose a waiting period or similar exclusion for maternity benefits under a group plan whether or not related to preexisting health conditions. Carriers must count the day for first employment when calculating the preexisting condition waiting period when employers impose a probationary period for health benefits.

Reasons Supporting Proposal: Recent and ongoing changes in federal law impose requirements on health carriers and health plans sold to groups, particularly employers. The rules clarify carrier responsibility to obey these laws. Access plans required last year should contain information that advises the public of the degree and manner of protection of privacy for plan enrollees. Despite legislative enactment of a law granting women the right to self-refer of certain health conditions to any women's health care practitioner in a plan network, carriers and the providers under contract with the carrier have developed various methods of impermissibly limiting this right. Questions and difficulties in enforcing existing network rules require clarification and simplification to ease compliance. For example, some carriers do not provide information about some plan networks because the regulatory definition that governs reporting is too narrow. Finally, confusion has arisen with respect to the manner of calculating and interpreting waiting periods for preexisting conditions in group plans because of federal standards that override existing state rules.

Name of Agency Personnel Responsible for Drafting: John S. Conniff, P.O. Box 40255, Olympia, WA, (360) 664-3786; Implementation and Enforcement: Bethany Weidner, P.O. Box 40255, Olympia, WA, (360) 664-8137.

Name of Proponent: Deborah Senn, Insurance Commissioner, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: Existing rules require health carriers to exercise responsibility for the actions of persons and organizations acting on behalf of the carrier. This standard is clarified by noting that carriers may not offer as a defense to violations of agency rules, that a person or an organization working for the carrier committed the offense. The agency anticipates that carriers will oversee the activities of contracting persons and organizations with greater diligence to prevent violations of law. The rule will provide a basis for ongoing oversight of carrier compliance with the state and federal laws governing carrier practices not directly addressed by rule. The rule will clarify current reporting requirements by removing ambiguities as to the type of managed care plan governed by the rules. The rule will provide necessary information to consumers about health plan limitations. The rule will provide necessary information to consumers about health plan information privacy protections that could affect a consumer's decision to buy from a particular carrier. These changes will end the conflict between state and federal law that create legal liabilities for plan administrators forced to choose between state and federal.

Proposal Changes the Following Existing Rules: Existing rules require health carriers to exercise responsibility for the actions of persons and organizations acting on behalf of the carrier. This standard is clarified by noting that carriers may not offer as a defense to violations of agency rules, that a person or an organization working for the carrier committed the offense.

The definition of managed care is expanded to include all plans that restrict consumers to the use of participating providers. Health carriers must include in their "access plan" that is filed with the commissioner a description of the carrier's privacy policies and procedures. The rule will provide necessary information to consumers about health plan information privacy protections that could affect a consumer's decision to buy from a particular carrier. Technical changes are made to the network reporting requirements to simplify reporting. The women's direct access rule is amended to clarify that maternity care and reproductive health include all pregnancy-related services. Carriers may not limit coverage by type of provider nor may the carrier limit coverage in a manner that has the effect of excluding a particular type of women's health care practitioner. Carriers may not impose prior authorization requirements on women's practitioners unless the same requirement is imposed upon all other types of providers performing the same type of service. Carriers may not permit participating providers to limit women to the use of a smaller number of providers (a subnetwork) than those providers under contract as participating providers for the health plan. Changes are made to rules governing portability of benefits and preexisting conditions to conform to federal requirements. With respect to portability of benefits, a carrier may not impose a waiting period or similar exclusion for maternity benefits under a group plan whether or not related to preexisting health conditions. Carriers must count the day for first employment when calculating the preexisting condition waiting period when employers impose a probationary period for health benefits.

A small business economic impact statement has been prepared under chapter 19.85 RCW.

Small Business Economic Impact Statement

Overview: In 1997, the commissioner began the rule-making process on R 97-3, Managed care rules, which dealt with standards and reporting for managed health care plans offered in the state. After considerable dialogue with carriers, the rules were adopted in January of 1998. Since that time, several issues have arisen which call for technical changes and clarifications to those rules. This proposed rule accomplishes that purpose. This proposed rule includes provisions to make the original rule better conform to other legal code, adds certain items required by the federal government, clarifies issues relating to direct access to women's health care providers, clarifies required filing dates, and incorporates some additional health care plans into the original rule's reporting requirements.

Is the rule required by federal law or federal regulation? This rule is not required by federal law or regulation; however, some provisions of the rule do incorporate requirements of federal law.

What industry is affected by the proposed rule? The industry codes that would be affected by the proposed rules include Hospital and Medical Service Plans, industry code #6324 and health plans offered by Accident and Health Insurers, industry code #6321. In Washington, hospital and medical service plans are called health care service contractors (HCSCs) and health maintenance organizations (HMOs).

List the specific parts of the proposed rule which may impose a cost to business: WAC 284-43-200(6) would require health carriers to disclose in its provider directory when the covered person's choice of a particular primary care provider will result in the inability to access other participating providers.

WAC 284-43-210(11) would require that a description of the health carrier's policy and procedures relating to health information privacy be filed with a product's "access plan."

Health carriers offering managed care health plans within the state currently provide the Office of Insurance Commissioner with certain filings giving information about those plans. The filings include an "access plan" (a one-time filing supplemented when there are material changes to a plan), enrollment information (filed on an annual basis), provider information (filed on a monthly basis), and network accessibility reports based on GeoAccess computer software (or other similar network analysis software, filed on an annual basis). These proposed rules would require some health carriers to file such reports for additional health care plans. Although carriers have already made the capital investments allowing them to provide these filings, and have staff available to produce them, these rules will require some carriers to incur marginal additional costs in order to provide some additional reports. Any additional reports would be produced with existing systems and staff during the normal process of developing the reports that are currently required. The extent to which any particular carrier will need to provide additional reports will depend on the products it sells; carriers which offer only plans featuring primary care providers will not need to file any additional reports.

WAC 284-43-720(2) stipulates that when an employer providing group health coverage to his or her employees imposes a probationary period or similar delay in eligibility for health plan coverage of new employees, the health carrier shall count the day of first employment as the effective date of coverage for purposes of calculating the preexisting condition waiting period. This is currently an ambiguous portion of the administrative code, with some carriers following this protocol and all carriers in need of clarification.

WAC 284-43-250 is amended to clarify certain aspects of the women's direct access rule. Despite legislative enactment of a law granting women the right to self-refer of certain health conditions to any women's health care practitioner in a plan network, some carriers (and providers under contract with the carriers) have developed various methods of impermissibly limiting this right. While those carriers could conceivably incur additional cost by changing these practices, the practices themselves were an improper circumvention of statute, and thus the costs will not be greater than foreseen by policymakers - or greater than the cost borne by carriers that have not engaged in such practices.

What percentage of the industries in the four-digit standard industrial classification will be affected by the rule? The proposed rule would affect 100% of the health carriers that offer health plans subject to regulation by the Insurance Commissioner.

Will the rule impose a disproportionately higher economic burden on small businesses within the four-digit classification? The OIC is only aware of one business that meets the statutory definition of "small business" for purposes of this economic impact statement. That small business offers only two health care plans, and is currently reporting the information required under the original rules for both those plans. Thus, this small business will not incur additional reporting costs as a result of this rule; the impact in this regard will therefore not be disproportionately higher on small business. If anything, the rule will place a slightly higher proportional cost on the larger businesses which offer a wider variety of health care plans.

Can mitigation be used to reduce the economic impact of the rule on small businesses and still meet the objectives of the proposed rule? The rule does not include any mitigatory tactics to reduce the already minimal anticipated costs to small business. The commissioner encourages any suggestions that can accomplish the goals in a more cost-efficient manner and encourages dialogue with all carriers.

What steps will the commissioner take to reduce the costs of the rule on small businesses? During the drafting of the original "managed care rules" (Insurance Commissioner Matter 97-3), several changes to preliminary drafts of the filing requirements were made in order to reduce the economic impact of the proposed rule. Since this proposed rule deals with technical changes to the earlier managed care rules, and there is only one small business in the market to this agency's knowledge, additional cost-saving approaches were not incorporated to these new rules.

The rule-drafting process will continue and small businesses are invited to comment on any proposed section of the rule and offer suggestions or alternatives. The rule drafters will continue to discuss the proposed rules with industry representatives to discuss methods to reduce any potential costs on smaller carriers. Additionally, the commissioner will provide technical assistance to aid carriers in understanding and implementing the new rules.

Which mitigation techniques have been considered and incorporated into the proposed rule? Since these proposed rules deal with technical changes to the earlier managed care rules, additional mitigation techniques were not used in these rules. The rule drafters will discuss the proposed rules with industry representatives to discuss methods to reduce any potential costs.

Which mitigation techniques were considered for incorporation into the proposed rule but were rejected, and why? No mitigation techniques were considered for incorporation and then rejected.

Briefly describe the reporting, recordkeeping, and other compliance requirements of the proposed rule: Health carriers offering managed care health plans within the state currently provide the Office of Insurance Commissioner with certain filings giving information about those plans. The filings include an "access plan" (a one-time filing supplemented when there are material changes to a plan), enrollment information (filed on an annual basis), provider information (filed on a monthly basis), and network accessibility reports based on GeoAccess computer software (or other similar network analysis software, filed on an annual basis). These proposed rules would require some health carriers to file such reports for additional health care plans. Although carriers have already made the capital investments allowing them to provide these filings, and have staff available to produce them, these rules will require some carriers to incur marginal additional costs in order to provide some additional reports. Any additional reports would be produced with existing systems and staff during the normal process of developing the reports that are currently required. The extent to which any particular carrier will need to provide additional reports will depend on the products it sells; carriers which offer only plans featuring primary care providers will not need to file any additional reports.

Health carriers would be required to disclose, in their provider directories, when a covered person's choice of a particular primary care provider will result in the inability to access other participating providers.

The rule would require that a description of the health carrier's policy and procedures relating to health information privacy be filed with the commissioner in a plan's "access plan." Access Plans are filed when a new product is offered, or when a material change is made to an existing plan.

List the kinds of professional services that a small business is likely to need in order to comply with the reporting, recordkeeping, and other compliance requirements of the proposed rule: A small business is not likely to need any additional professional services because of the proposed rule. If a small business markets a product for which a covered person's choice of a particular primary care provider will result in the inability to access other participating providers, it will need to point that out in its provider directory. However, this would be a marginal change done in the routine process of updating a provider directory, and is unlikely to require professional services.

The commissioner will seek to provide whatever technical assistance is necessary to enable the smaller carriers to understand and implement the rule.

Analyze the cost of compliance including, specifically: Cost of equipment: There is no anticipated additional cost of equipment. The equipment needed to supply required filings has already been purchased by the carriers.

Cost of supplies: The only anticipated cost of supplies attributable to the rule will be the paper and ink required by some carriers to provide additional Access Plans and enrollment figures to the OIC on an annual basis (at most); this is a negligible cost.

Cost of labor: It is not anticipated that the rule will be responsible for additional cost of labor. The most labor-intensive aspects of this rule would be the generation of some additional filings for some carriers. However, the information systems required for producing these reports are already in place, and thus their production would be a marginal investment of time by existing staff who are already producing similar filings which are currently required. OIC does not expect that any additional staff will be required as a result of this rule.

Cost of increased administration: There is no anticipated increased cost of administration. Additional filings should not require increased administration, since the filing formats are identical to those already provided to the OIC and carriers have already incorporated the filing process into their operations.

Compare the cost of compliance for small business with the cost of compliance for the largest business in the same four-digit classification: The cost of compliance for small business will be proportionally less for because it will not need to provide any additional filings to the OIC. In contrast, the largest business will likely need to provide some additional filings as a result of the rule, making any costs to it proportionally greater.

The rules drafters will consider any alternatives that accomplish the goals of the rules while mitigating the costs of compliance, particularly those costs incurred by small businesses.

Have businesses that will be affected been asked what the economic impact will be? In the original managed care rulemaking in 1997, the agency used surveys to determine economic impacts and received significant input from the industry. Since these rules represent technical clarifications and marginal additions to current filing requirements for some carriers, the companies were not resurveyed for economic impact information. The rule drafters will discuss the proposed rules with industry representatives to ascertain methods to reduce any potential costs.

How did the commissioner involve small business in the development of the proposed rule? The small business that is affected by the rule was notified by the CR-101, as was the rest of the insurance industry. This rule making revisits subjects addressed in earlier rule makings. Small carriers and other parties had the opportunity to participate in workgroup meetings and make comments throughout that rule making. The results of those discussions lead to the modifcations of the original rules and provided guidance through this rule making. As stated previously the drafters will discuss the proposed rule with any industry representatives, including those of small business, as the rule-making process continues.

How and when were affected small businesses advised of the proposed rule? The CR-101 for this rule was filed on June 23, 1999. It was mailed to interested parties and posted on the Commissioner's website.

A copy of the statement may be obtained by writing to Kacy Brandeberry, P.O. Box 40255, Olympia, WA 98504-0255, phone (360) 664-3784, fax (360) 664-2782, e-mail KacyB@oic.wa.gov.

RCW 34.05.328 applies to this rule adoption.

Hearing Location: 14th and Water, Cherberg Building, Olympia, Washington, Senate Hearing Room 2, on January 4, 2000, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Lorie Villaflores by TDD (360) 407-0409.

Submit Written Comments to: Kacy Brandeberry, P.O. Box 40255, Olympia, WA 98504-0255, Internet e-mail KacyB@oic.wa.gov, fax (360) 664-2782, by January 3, 2000.

Date of Intended Adoption: January 5, 2000.

December 1, 1999

Robert A. Harkins

Chief Deputy Commissioner

OTS-3531.1


AMENDATORY SECTION(Amending Order R 97-3, filed 1/22/98, effective 2/22/98)

WAC 284-43-120
Applicability and scope.

This chapter shall apply to all health plans and all health carriers subject to the jurisdiction of the state of Washington except as otherwise expressly provided in this chapter.  Health carriers are responsible for compliance with the provisions of this chapter and are responsible for the compliance of any person or organization acting on behalf of or at the direction of the carrier, or acting pursuant to carrier standards or requirements concerning the coverage of, payment for, or provision of health care services. A carrier may not offer as a defense to a violation of any provision of this chapter that the violation arose from the act or omission of a participating provider or facility, network administrator, claims administrator, or other person under contract with the carrier rather than from the direct act or omission of the carrier.  Nothing in this chapter shall be construed to permit the direct regulation of health care providers or facilities by the office of the insurance commissioner.

[Statutory Authority: RCW 48.02.060, 48.20.450, 48.20.460, 48.30.010, 48.44.020, 48.44.050, 48.44.080, 48.46.030, 48.46.060(2), 48.46.200 and 48.46.243.  98-04-005 (Order R 97-3), 284-43-120, filed 1/22/98, effective 2/22/98.]


NEW SECTION
WAC 284-43-125
Compliance with state and federal laws.

Health carriers shall comply with all Washington state and federal laws relating to the acts and practices of carriers and relating to health plans. No carrier may engage in any act or practice that would prevent or limit a person from exercising a right to health care service or coverage granted under any state or federal law. For example, health carriers are expected to comply with federal laws governing mental health coverage and requiring certificates of creditable coverage under the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

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SUBCHAPTER B

HEALTH CARE NETWORKS
AMENDATORY SECTION(Amending Order R 97-3, filed 1/22/98, effective 2/22/98)

WAC 284-43-200
Network adequacy.

(1) A health carrier offering a managed care plan shall maintain each plan network in a manner that is sufficient in numbers and types of providers and facilities to assure that all health plan services to covered persons will be accessible without unreasonable delay.  In the case of emergency services, covered persons shall have access twenty-four hours per day, seven days per week.  The carrier's service area shall not be created in a manner designed to discriminate against persons because of age, sex, family structure, ethnicity, race, health condition, employment status, or socioeconomic status.  Each carrier shall ensure that its networks will meet these requirements by the end of the first year of operation; or, for those plans already in existence, ((within six months after the effective date of this rule)) by August 22, 1998.

(2) Sufficiency may be established by the carrier with reference to any reasonable criteria used by the carrier, including but not limited to: Provider-covered person ratios by specialty, primary care provider-covered person ratios, geographic accessibility, waiting times for appointments with participating providers, hours of operation, and the volume of technological and specialty services available to serve the needs of covered persons requiring technologically advanced or specialty care.  Evidence of carrier compliance with network adequacy standards that are substantially similar to those standards established by state agency health care purchasers (e.g., the state health care authority and the department of social and health services) and by private managed care accreditation organizations may be used to demonstrate sufficiency. At a minimum, a carrier will be held accountable for meeting those standards described and disclosed in its access plan(s) under WAC 284-43-210.

(3) In any case where the health carrier has an insufficient number or type of participating providers or facilities to provide a covered health care service, the carrier shall ensure through referral by the primary care provider or otherwise that the covered person obtains the covered service at no greater cost to the covered person than if the service were obtained from network providers and facilities, or shall make other arrangements acceptable to the commissioner.

(4) The health carrier shall establish and maintain adequate arrangements to ensure reasonable proximity of network providers and facilities to the business or personal residence of covered persons.  In determining whether a health carrier has complied with this provision, the commissioner will give due consideration to the relative availability of health care providers in the service area under consideration and to the standards established by state agency health care purchasers.

(5) A health carrier shall monitor, on an ongoing basis, the ability and clinical capacity of its network providers and facilities to furnish health plan services to covered persons.

(6) In every circumstance where the covered person's choice of a particular primary care provider will result in the covered person's inability to access other participating providers, the carrier must fully disclose in the provider directory that these restrictions or limitations apply. For example, if the primary care provider is the member of a large practice group, the provider may have a financial incentive to restrict access to only those specialists who are members of the same group. If this incentive will result in the primary care provider limiting referrals to particular providers, the covered person shall be informed in advance of those participating providers who will not be available to the covered person.

[Statutory Authority: RCW 48.02.060, 48.20.450, 48.20.460, 48.30.010, 48.44.020, 48.44.050, 48.44.080, 48.46.030, 48.46.060(2), 48.46.200 and 48.46.243.  98-04-005 (Order R 97-3), 284-43-200, filed 1/22/98, effective 2/22/98.]


AMENDATORY SECTION(Amending Order R 97-3, filed 1/22/98, effective 2/22/98)

WAC 284-43-210
((Network reporting requirement and)) Access plan.

Beginning January 1, 1999, health carriers shall file with the commissioner an access plan meeting the requirements of this subchapter for each of the managed care plans that the carrier offers in this state.  The health carrier shall make the access plans available on its business premises and shall provide them to any interested party upon request.  The carrier shall prepare an access plan prior to offering a new managed care plan, and shall update an existing access plan whenever it makes any material change to an existing managed care plan.  The access plan shall contain at least the following:

(1) A description of the health carrier's network of providers and facilities by license or certification type and by geographic location;

(2) ((The following provision is a restatement of a statutory requirement found in RCW 48.43.095 (1)(c) included here for ease of reference: "))A full description of the procedures to be followed by an enrollee for consulting a provider other than the primary care provider and whether the enrollee's primary care provider, the carrier's medical director, or another entity must authorize the referral(("));

(3) A description of the health carrier's process for monitoring and assuring on an ongoing basis the sufficiency of the network to provide covered services that meet the health care needs of populations that enroll in managed care plans;

(4) A description of the health carrier's efforts to address the needs of covered persons with limited English proficiency and literacy, with diverse cultural and ethnic backgrounds, and with physical and mental disabilities;

(5) A description of the health carrier's methods for assessing the health care needs of covered persons and their satisfaction with services;

(6) A description of the health carrier's method of informing covered persons of the plan's services and features, including but not limited to, the plan's grievance procedures, its process for covered persons choosing and changing providers, and its procedures for providing and approving emergency and specialty care including ((the following restated statutory requirements found in RCW 48.43.095 (1)(e), (f), and (i) included here for ease of reference: "))procedures, if any, that an enrollee must first follow for obtaining prior authorization for health care services((. . .,)) and((. . .))description of any reimbursement or payment arrangements, including, but not limited to, capitation provisions, fee-for-service provisions, and health care delivery efficiency provisions, between a carrier and a provider((. . .)), and((. . .)) descriptions and justifications for provider compensation programs, including any incentives or penalties that are intended to encourage providers to withhold services or minimize or avoid referrals to specialists(("));

(7) A description of the health carrier's system for ensuring the coordination and continuity of care for covered persons referred to specialty providers, for covered persons using ancillary services, including social services and other community resources, and for ensuring appropriate discharge planning;

(8) A description of the health carrier's proposed plan for providing continuity of care in the event of contract termination between the health carrier and any of its participating providers and facilities, or in the event of the health carrier's insolvency or other inability to continue operations.  The description shall explain how covered persons will be notified of the contract termination, or the health carrier's insolvency or other cessation of operations, and transferred to other providers in a timely manner; ((and))

(9) A description of the health carrier's strategy for integrating public health goals with health services offered to covered persons under the managed care plans of the health carrier, including a description of the health carrier's good faith efforts to initiate or maintain communication with public health agencies((.));

(10) A description of the health carrier's methods for assessing the health status of its covered persons including a description of how the carrier incorporates findings of local public health community assessments;

(11) A description of the health carrier's policy and procedures relating to health information privacy including information concerning any rights the covered person has to restrict access to health information and to obtain access to their own health information.

With respect to the above required elements of an access plan, each carrier shall provide sufficient information to allow the commissioner and consumers to determine the extent of a carrier's efforts.  For example, if a carrier makes little or no effort to coordinate health plan services with public health goals, then the carrier shall report that it does not coordinate services with public health goals.

[Statutory Authority: RCW 48.02.060, 48.20.450, 48.20.460, 48.30.010, 48.44.020, 48.44.050, 48.44.080, 48.46.030, 48.46.060(2), 48.46.200 and 48.46.243.  98-04-005 (Order R 97-3), 284-43-210, filed 1/22/98, effective 2/22/98.]


AMENDATORY SECTION(Amending Order R 97-3, filed 1/22/98, effective 2/22/98)

WAC 284-43-220
Network reports -- Format.

Beginning January 1, 1999, and by January 31st of every subsequent year, each health carrier shall provide a description of each of its networks to the commissioner.  In describing its network, each carrier shall include an explanation of its established access standards, noting the criteria used to measure the standards.  For example, a carrier should indicate whether travel distances or driving times are used to determine accessibility.  In addition, each carrier shall indicate which providers are classified as primary care providers, obstetric and women's health care providers.

(1) Beginning January 1, 1999, each health carrier shall provide the insurance commissioner with:

(a) An annual electronic or hard copy paper report of all participating providers by managed care plan and monthly updates.  This report shall contain all the data items shown in the table.  (Form A.) Filing of this data satisfies the reporting requirements of RCW 48.44.080 and the requirements of RCW 48.46.030 relating to filing of notices that describes changes in the provider network.

(b) An annual electronic or hard copy paper report indicating the total number of covered persons who were entitled to health care services during each month of the year, excluding nonresidents, by line of business, by product (with identifying form number filed with this office, if appropriate), by county, and by sex.  The report shall conform to the table.  (Form B.)

(2) In addition to the provider and covered persons reports, each carrier shall file annual reports meeting the standards below and shall update the reports whenever a material change in a carrier's provider network occurs that significantly affects the ability of covered persons to access covered services.  Each carrier shall file for each managed care plan (with identifying form number(s) filed with this office, if appropriate), using a network accessibility analysis system, such as GeoNetworks or any other similar system:

(a) A map showing the location of covered persons and primary care providers with a differentiation between single and multiple provider locations.

(b) An access table illustrating the relationship between primary care providers and covered persons as of December of each year by county, including at a minimum:

(i) County.

(ii) Total number of covered persons.

(iii) Total number of primary care providers.

(iv) Number of covered persons meeting the carrier's self defined access standard.

(v) Percentage of covered persons meeting the carrier's self defined access standard.

(vi) Average distance to at least one primary care provider for its covered persons.

(c) A list indicating alphabetically by county and by city:

(i) County;

(ii) City;

(iii) Total number of covered persons;

(iv) Total number of primary care providers (or, if the plan is a Preferred Provider Organization style of managed care, the total number of contracted providers);

(v) Total number of obstetric and women's health care providers;

(vi) Total number of specialists;

(vii) Total number of nonphysician providers by license type;

(viii) Total number of hospitals; and

(ix) Total number of pharmacies.

(3) A carrier may vary the method of reporting required under subsection (2) of this section upon written request and subsequent written approval by the commissioner after a showing by the carrier that the carrier does not use or does not have easy access to electronic or data systems permitting the method of reporting required without incurring substantial costs.


(WAC 284-43-220, Form A)

Place illustration here.

(WAC 284-43-220, Form B, page 1)

Place illustration here.

(WAC 284-43-220, Form B, page 2)

Place illustration here.

[Statutory Authority: RCW 48.02.060, 48.20.450, 48.20.460, 48.30.010, 48.44.020, 48.44.050, 48.44.080, 48.46.030, 48.46.060(2), 48.46.200 and 48.46.243.  98-04-005 (Order R 97-3), 284-43-220, filed 1/22/98, effective 2/22/98.]


AMENDATORY SECTION(Amending Order R 97-3, filed 1/22/98, effective 2/22/98)

WAC 284-43-250
Health carrier standards for women's right to directly access certain health care practitioners for women's health care services.

(1)(a) "Women's health care services" is defined to include, but need not be limited to, maternity care, reproductive health services, gynecological care, general examination, and preventive care as medically appropriate, and medically appropriate follow-up visits for these services.  General examinations, preventive care, and medically appropriate follow-up care are limited to services related to maternity, reproductive health services, gynecological care, or other health services that are particular to women, such as breast examinations.  Women's health care services also include any appropriate health care service for other health problems, discovered and treated during the course of a visit to a women's health care practitioner for a women's health care service, which is within the practitioner's scope of practice. Maternity care, reproductive health, and preventive services include all pregnancy-related conditions including the desire to avoid pregnancy through the use of contraception, pregnancy termination, breast-feeding, and complications of pregnancy.

(b) A carrier may not exclude or limit coverage for women's health care services by a particular type of women's health care practitioner acting within his or her scope of practice unless such exclusion or limitation is similarly imposed upon all providers authorized by law to render such service. In addition, no carrier may exclude or limit coverage for appropriate health care service within a practitioner's scope of practice if the effect of such exclusion or limitation is to prevent access to services rendered by a particular type of women's health care practitioner. For example, a carrier may not impose a limitation on maternity services that would require all child birth to occur in a hospital attended by a physician thus, preventing a woman from choosing and using the birthing services of an advanced registered nurse practitioner specialist in midwifery.

(c) A carrier may not impose notification or prior authorization requirements upon women's health care practitioners who render women's health care services or upon women who directly access such services unless such notification or prior authorization requirement is imposed upon other providers for similar types of services. For example, a carrier may not require a nurse practitioner to notify the plan within seven days of providing direct women's health care services if a primary care provider would not also be required to provide seven-day notice to the carrier for the same or similar service.

(2) A health carrier shall not deny coverage for medically appropriate laboratory services, imaging services, diagnostic services, or prescriptions for pharmaceutical or medical supplies, which are ordered by a directly accessed women's health care practitioner, and which are within the practitioner's scope of practice, if such services would be covered when provided by another type of health care practitioner.  A health carrier shall not require authorization by another type of health care practitioner for these services.

(3)(a) All health carriers shall permit each female policyholder, subscriber, enrolled participant, or beneficiary of carrier policies, plans, and programs written, amended, or renewed after July 23, 1995, to directly access the types of women's health care practitioners identified in RCW 48.42.100(2), for appropriate covered women's health care services without prior referral from another health care practitioner.

(b) Direct access may be limited to those women's health care practitioners who have signed participating provider agreements with the carrier for a specific benefit plan network. Irrespective of the financial arrangements a carrier may have with participating providers, a carrier may not limit and shall not permit a network provider to limit access to a subset of participating providers or facilities within the network. Such an impermissible limitation might arise when a primary care provider's group practice receives a capitation payment for comprehensive care to a covered person and then represents to the covered person that only those gynecologists in the primary care provider's clinic are available for direct access.

(c) Every carrier shall include in each provider network, a sufficient number of each type of practitioner included in the definition of women's health care practitioners in RCW 48.42.100(2) to ensure that enrollees can exercise their right of direct access.

(4) To inform enrollees of their rights under RCW 48.42.100, all health carriers shall include in enrollee handbooks a written explanation of a woman's right to directly access women's health care practitioners for covered women's health care services.  Enrollee handbooks shall include information regarding any limitations to direct access, including, but not limited to:

(a) Limited direct access based on a benefit plan's closed network of practitioners, if appropriate; and

(b) The carrier's right to limit coverage to medically necessary and appropriate women's health care services.

(5) No carrier shall impose cost-sharing, such as copayments or deductibles, for directly accessed women's health care services, that are not required for access to health care practitioners acting as primary care providers.

[Statutory Authority: RCW 48.02.060, 48.20.450, 48.20.460, 48.30.010, 48.44.020, 48.44.050, 48.44.080, 48.46.030, 48.46.060(2), 48.46.200 and 48.46.243.  98-04-005 (Order R 97-3), 284-43-250, filed 1/22/98, effective 2/22/98.]

SUBCHAPTER G

ISSUANCE, RENEWAL, AND PORTABILITY OF HEALTH PLANS
AMENDATORY SECTION(Amending Order R 97-3, filed 1/22/98, effective 2/22/98)

WAC 284-43-710
Portability of health insurance benefits.

(1) Every health carrier shall waive any preexisting condition exclusion or limitation for persons or groups who had similar health coverage under a different health plan at any time during the three-month period immediately preceding the date of application for the new health plan to the extent that such person was continuously covered under the immediately preceding health plan.  If the person was continuously covered for at least three months under the immediately preceding health plan, the carrier may not impose a waiting period for coverage of preexisting conditions unless the plan is dissimilar to the immediately preceding plan as determined in accordance with subsection (4) of this section.  If the person was continuously covered for less than three months under the immediately preceding health plan, the carrier may not impose a waiting period for a preexisting condition that exceeds the difference between the number of months the person was continuously covered under the immediately preceding health plan and any preexisting condition waiting period under the new health plan.  For purposes of portability of benefits under this section and to meet federal requirements (adapted from the federal definition of "creditable coverage" under section 701 of Public Law 104-191, August 21, 1996), "health plan" includes:

(a) Employer provided health plans including self-funded plans;

(b) Part A or part B of Title XVIII of the Social Security Act;

(c) Title XIX of the Social Security Act, other than coverage consisting solely of benefits under section 1928 of the Act;

(d) Chapter 55 of Title 10, United States Code;

(e) A medical care program of the Indian Health Service or of a tribal organization;

(f) The Washington state health insurance pool created under RCW 48.41.040;

(g) A health plan offered under chapter 89 of Title 5, United States Code;

(h) The state basic health plan; and

(i) A health benefit plan under section 5(e) of the Peace Corps Act (22 U.S.C. Sec. 2504(e)).

(2) When an employer providing group health coverage to his or her employees imposes a probationary period or similar delay in eligibility for health plan coverage of new employees, the health carrier shall count the day of first employment with the new employer as the first day of coverage for purposes of applying the portability of benefit provisions of this section so that the new employees and dependents obtain the protections of this rule at the end of such probationary period.

(3) A carrier may not avoid the portability requirements of this section by taking into consideration, for rating purposes, the health condition or health experience of a person applying for an individual health plan or of a person being added to an existing group plan.  For example, a person being added to a group or applying for an individual health plan who is availing himself or herself of the portability provisions of this section may not be rated based upon health conditions or past health experience.

(4) For purposes of this section only, a new health plan is similar to the immediately preceding health plan if the actuarial value of the benefits under the new health plan as a whole is not more than twenty-five percent greater than the benefits provided under the immediately preceding health plan when all cost-sharing and other benefit limitations are taken into consideration.

A health carrier asserting that the new health plan is dissimilar to the immediately preceding health plan of a person applying for coverage must provide such person with a written statement describing the basis for the carrier's determination.

(5) Nothing contained in this section requires a health carrier to amend a health plan to provide new benefits in its existing health plans.  For example, if a person was provided maternity benefits under the immediately preceding health plan, the carrier need not amend the new health plan being purchased to provide such benefits if the new health plan being purchased does not include maternity benefits for any covered person.  In addition, nothing in this section requires a carrier to waive benefit limitations not related to an individual or group's preexisting conditions or health history.  For example, this rule does not apply to a one-year waiting period for use of a particular benefit (e.g., organ transplants) imposed equally upon all covered persons without regard to health condition. However, this rule does prohibit and a carrier may not apply any waiting period or similar exclusion for use of maternity benefits under a group plan whether or not related to preexisting health conditions.

[Statutory Authority: RCW 48.02.060, 48.20.450, 48.20.460, 48.30.010, 48.44.020, 48.44.050, 48.44.080, 48.46.030, 48.46.060(2), 48.46.200 and 48.46.243.  98-04-005 (Order R 97-3), 284-43-710, filed 1/22/98, effective 2/22/98.]


AMENDATORY SECTION(Amending Order R 97-3, filed 1/22/98, effective 2/22/98)

WAC 284-43-720
Guaranteed issue and restrictions on the denial, exclusion, or limitation of health benefits for preexisting conditions.

(1) All health carriers shall accept for enrollment any state resident within the carrier's service area and provide or assure the provision of all covered services regardless of age, sex, family structure, ethnicity, race, health conditions, geographic location, employment status, socioeconomic status, other conditions or situation, or HIV status.  Thus, health carriers may not reject health plan applicants and may not limit or exclude plan coverage for any reason associated with health risk or perceived health risk except for the imposition of a preexisting condition exclusion as permitted in this chapter.

(2) No carrier may reject an applicant for any health plan it offers based upon preexisting conditions of the applicant or in the case of a group applicant, individuals within the group and no carrier may deny, exclude, or otherwise limit coverage for an individual's preexisting health conditions; except that a carrier may impose a three-month benefit waiting period for preexisting conditions for which medical advice was given, or for which a provider recommended or provided treatment within the three months before the effective date of coverage.

When an employer providing group health coverage to his or her employees imposes a probationary period or similar delay in eligibility for health plan coverage of new employees, the health carrier shall count the day of first employment as the effective date of coverage for purposes of calculating the preexisting condition waiting period.

(3) Genetic information shall not be treated as a health condition in the absence of a diagnosis of the condition related to such information.

(4) A carrier may not impose any preexisting condition exclusion relating to pregnancy as a preexisting condition in group health plans.

(5) No carrier may avoid the requirements of this section through the creation of a new rate classification or the modification of an existing rate classification.  A new or changed rate classification will be deemed an attempt to avoid the provisions of this section if the new or changed classification would substantially discourage applications for coverage from individuals or groups who are higher than average health risks.  For example, a carrier could not create a new rate classification for "uninsurable risks."

(6) The guaranteed issue provisions of this section do not apply to health plans in which the carrier has zero enrollment.

[Statutory Authority: RCW 48.02.060, 48.20.450, 48.20.460, 48.30.010, 48.44.020, 48.44.050, 48.44.080, 48.46.030, 48.46.060(2), 48.46.200 and 48.46.243.  98-04-005 (Order R 97-3), 284-43-720, filed 1/22/98, effective 2/22/98.]

OTS-3530.1


AMENDATORY SECTION(Amending WSR 99-19-032, Matter No. R 98-7, filed 9/8/99, effective 10/9/99)

WAC 284-43-130
Definitions.

Except as defined in other subchapters and unless the context requires otherwise, the following definitions shall apply throughout this chapter.

(1) "Covered health condition" means any disease, illness, injury or condition of health risk covered according to the terms of any health plan.

(2) "Covered person" means an individual covered by a health plan including an enrollee, subscriber, policyholder, or beneficiary of a group plan.

(3) "Emergency medical condition" means the emergent and acute onset of a symptom or symptoms, including severe pain, that would lead a prudent layperson acting reasonably to believe that a health condition exists that requires immediate medical attention, if failure to provide medical attention would result in serious impairment to bodily functions or serious dysfunction of a bodily organ or part, or would place the person's health in serious jeopardy.

(4) "Emergency services" means otherwise covered health care services medically necessary to evaluate and treat an emergency medical condition, provided in a hospital emergency department.

(5) "Enrollee point-of-service cost-sharing" or "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.

(6) "Facility" means an institution providing health care services, including but not limited to hospitals and other licensed inpatient centers, ambulatory surgical or treatment centers, skilled nursing centers, residential treatment centers, diagnostic, laboratory, and imaging centers, and rehabilitation and other therapeutic settings.

(7) "Grievance" means a written complaint submitted by or on behalf of a covered person regarding:

(a) Denial of health care services or payment for health care services; or

(b) Issues other than health care services or payment for health care services including dissatisfaction with health care services, delays in obtaining health care services, conflicts with carrier staff or providers, and dissatisfaction with carrier practices or actions unrelated to health care services.

(8) "Health care provider" or "provider" means:

(a) A person regulated under Title 18 RCW 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.

(9) "Health care service" or "health 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.

(10) "Health carrier" or "carrier" means a disability insurance company regulated under chapter 48.20 or 48.21 RCW, a health care service contractor as defined in RCW 48.44.010, and a health maintenance organization as defined in RCW 48.46.020.

(11) "Health plan" or "plan" means any individual or group policy, contract, or agreement offered by a health carrier to provide, arrange, reimburse, or pay for health care service except the following:

(a) Long-term care insurance governed by chapter 48.84 RCW;

(b) Medicare supplemental health insurance governed by chapter 48.66 RCW;

(c) Limited health care service offered by limited health care service contractors in accordance with RCW 48.44.035;

(d) Disability income;

(e) Coverage incidental to a property/casualty liability insurance policy such as automobile personal injury protection coverage and homeowner guest medical;

(f) Workers' compensation coverage;

(g) Accident only coverage;

(h) Specified disease and hospital confinement indemnity when marketed solely as a supplement to a health plan;

(i) Employer-sponsored self-funded health plans;

(j) Dental only and vision only coverage; and

(k) 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.

(12) "Managed care plan" means a health plan that ((coordinates the provision of covered health care services to a covered person through the use of a primary care provider and a network)) restricts covered persons to the use of participating providers and facilities.

(13) "Medically necessary" or "medical necessity" in regard to mental health services is a carrier determination as to whether a health service is a covered benefit if the service is consistent with generally recognized standards within a relevant health profession.

(14) "Mental health provider" means a health care provider or a health care facility authorized by state law to provide mental health services.

(15) "Mental health services" means in-patient or out-patient treatment, partial hospitalization or out-patient treatment to manage or ameliorate the effects of a mental disorder listed in the Diagnostic and Statistical Manual (DSM) IV published by the American Psychiatric Association, excluding diagnoses and treatments for substance abuse, 291.0 through 292.9 and 303.0 through 305.9.

(16) "Network" means the group of participating providers and facilities providing health care services to a particular health plan.  A health plan network for carriers offering more than one health plan may be smaller in number than the total number of participating providers and facilities for all plans offered by the carrier.

(17) "Out-patient therapeutic visit" or "out-patient visit" means a clinical treatment session with a mental health provider of a duration consistent with relevant professional standards used by the carrier to determine medical necessity for the particular service being rendered, as defined in Physicians Current Procedural Terminology, published by the American Medical Association.

(18) "Participating provider" and "participating facility" means a facility or provider who, under a contract with the health carrier or with the carrier's contractor or subcontractor, has agreed to provide health care services to covered persons with an expectation of receiving payment, other than coinsurance, copayments, or deductibles, from the health carrier rather than from the covered person.

(19) "Person" means an individual, a corporation, a partnership, an association, a joint venture, a joint stock company, a trust, an unincorporated organization, any similar entity, or any combination of the foregoing.

(20) "Primary care provider" means a participating provider who supervises, coordinates, or provides initial care or continuing care to a covered person, and who may be required by the health carrier to initiate a referral for specialty care and maintain supervision of health care services rendered to the covered person.

(21) "Preexisting condition" means any medical condition, illness, or injury that existed any time prior to the effective date of coverage.

(22) "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.

(23) "Small group" means a health plan issued to a small employer as defined under RCW 48.43.005(24) comprising from one to fifty eligible employees.

[Statutory Authority: RCW 48.02.060, 48.30.010, 48.44.050, 48.46.200, 48.30.040, 48.44.110 and 48.46.400.  99-19-032 (Matter No. R 98-7), 284-43-130, filed 9/8/99, effective 10/9/99.  Statutory Authority: RCW 48.02.060, 48.20.450, 48.20.460, 48.30.010, 48.44.020, 48.44.050, 48.44.080, 48.46.030, 48.46.060(2), 48.46.200 and 48.46.243.  98-04-005 (Order R 97-3), 284-43-130, filed 1/22/98, effective 2/22/98.]

Washington State Code Reviser's Office