WEST VIRGINIA LEGISLATURE
2024 REGULAR SESSION
Introduced Senate Bill 383
By Senators Caputo, Woelfel, Chapman, and Plymale [Introduced January 12, 2024; referred to the Committee on Health and Human Resources;
and then to the Committee on Finance]
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1 A BILL to amend and reenact §5-16-7 of the Code of West Virginia, 1931, as amended; to amend
2 and reenact §5-16B-6e of said code; to amend and reenact §33-16-3v of said code; to
3 amend and reenact §33-24-7k of said code; and to amend and reenact §33-25A-8j of said
4 code, all relating to increasing the required insurance coverage for autism spectrum
5 disorders.
Be it enacted by the Legislature of West Virginia:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE
GOVERNOR, SECRETARY OF STATE AND ATTORNEY GENERAL;
BOARD OF PUBLIC WORKS; MISCELLANEOUS AGENCIES,
COMMISSIONS, OFFICES, PROGRAMS, ETC.
ARTICLE 16. WEST VIRGINIA PUBLIC EMPLOYEES INSURANCE ACT.
§5-16-7. Authorization to establish plans; mandated benefits; optional plans; separate rating for claims experience purposes.
1 (a) The agency shall establish plans for those employees herein made eligible and
2 establish and promulgate rules for the administration of these plans subject to the limitations
3 contained in this article. These plans shall include:
4 (1) Coverages and benefits for x-ray and laboratory services in connection with
5 mammograms when medically appropriate and consistent with current guidelines from the United
6 States Preventive Services Task Force; pap smears, either conventional or liquid-based cytology,
7 whichever is medically appropriate and consistent with the current guidelines from either the
8 United States Preventive Services Task Force or the American College of Obstetricians and
9 Gynecologists; and a test for the human papilloma virus when medically appropriate and
10 consistent with current guidelines from either the United States Preventive Services Task Force or
11 the American College of Obstetricians and Gynecologists, when performed for cancer screening
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12 or diagnostic services on a woman age 18 or over;
13 (2) Annual checkups for prostate cancer in men age 50 and over;
14 (3) Annual screening for kidney disease as determined to be medically necessary by a
15 physician using any combination of blood pressure testing, urine albumin or urine protein testing,
16 and serum creatinine testing as recommended by the National Kidney Foundation;
17 (4) For plans that include maternity benefits, coverage for inpatient care in a duly licensed
18 health care facility for a mother and her newly born infant for the length of time which the attending
19 physician considers medically necessary for the mother or her newly born child. No plan may deny
20 payment for a mother or her newborn child prior to 48 hours following a vaginal delivery or prior to
21 96 hours following a caesarean section delivery if the attending physician considers discharge
22 medically inappropriate;
23 (5) For plans which provide coverages for post-delivery care to a mother and her newly
24 born child in the home, coverage for inpatient care following childbirth as provided in subdivision
25 (4) of this subsection if inpatient care is determined to be medically necessary by the attending
26 physician. These plans may include, among other things, medicines, medical equipment,
27 prosthetic appliances, and any other inpatient and outpatient services and expenses considered
28 appropriate and desirable by the agency; and
29 (6) Coverage for treatment of serious mental illness:
30 (A) The coverage does not include custodial care, residential care, or schooling. For
31 purposes of this section, "serious mental illness" means an illness included in the American
32 Psychiatric Association’s diagnostic and statistical manual of mental disorders, as periodically
33 revised, under the diagnostic categories or subclassifications of:
34 (i) Schizophrenia and other psychotic disorders;
35 (ii) Bipolar disorders;
36 (iii) Depressive disorders;
37 (iv) Substance-related disorders with the exception of caffeine-related disorders and
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38 nicotine-related disorders;
39 (v) Anxiety disorders; and
40 (vi) Anorexia and bulimia.
41 With regard to a covered individual who has not yet attained the age of 19 years, "serious
42 mental illness" also includes attention deficit hyperactivity disorder, separation anxiety disorder,
43 and conduct disorder.
44 (B) The agency shall not discriminate between medical-surgical benefits and mental health
45 benefits in the administration of its plan. With regard to both medical-surgical and mental health
46 benefits, it may make determinations of medical necessity and appropriateness and it may use
47 recognized health care quality and cost management tools including, but not limited to, limitations
48 on inpatient and outpatient benefits, utilization review, implementation of cost-containment
49 measures, preauthorization for certain treatments, setting coverage levels, setting maximum
50 number of visits within certain time periods, using capitated benefit arrangements, using fee-for-
51 service arrangements, using third-party administrators, using provider networks, and using patient
52 cost sharing in the form of copayments, deductibles, and coinsurance. Additionally, the agency
53 shall comply with the financial requirements and quantitative treatment limitations specified in 45
54 CFR 146.136(c)(2) and (c)(3), or any successor regulation. The agency may not apply any
55 nonquantitative treatment limitations to benefits for behavioral health, mental health, and
56 substance use disorders that are not applied to medical and surgical benefits within the same
57 classification of benefits: Provided, That any service, even if it is related to the behavioral health,
58 mental health, or substance use diagnosis if medical in nature, shall be reviewed as a medical
59 claim and undergo all utilization review as applicable;
60 (7) Coverage for general anesthesia for dental procedures and associated outpatient
61 hospital or ambulatory facility charges provided by appropriately licensed health care individuals in
62 conjunction with dental care if the covered person is:
63 (A) Seven years of age or younger or is developmentally disabled and is an individual for
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64 whom a successful result cannot be expected from dental care provided under local anesthesia
65 because of a physical, intellectual, or other medically compromising condition of the individual and
66 for whom a superior result can be expected from dental care provided under general anesthesia.
67 (B) A child who is 12 years of age or younger with documented phobias or with
68 documented mental illness and with dental needs of such magnitude that treatment should not be
69 delayed or deferred and for whom lack of treatment can be expected to result in infection, loss of
70 teeth, or other increased oral or dental morbidity and for whom a successful result cannot be
71 expected from dental care provided under local anesthesia because of such condition and for
72 whom a superior result can be expected from dental care provided under general anesthesia.
73 (8) (A) All plans shall include coverage for diagnosis, evaluation, and treatment of autism
74 spectrum disorder in individuals ages 18 months to 18 years. To be eligible for coverage and
75 benefits under this subdivision, the individual must be diagnosed with autism spectrum disorder at
76 age eight or younger. Such plan shall provide coverage for treatments that are medically
77 necessary and ordered or prescribed by a licensed physician or licensed psychologist and in
78 accordance with a treatment plan developed from a comprehensive evaluation by a certified
79 behavior analyst for an individual diagnosed with autism spectrum disorder.
80 (B) The coverage shall include, but not be limited to, applied behavior analysis which shall
81 be provided or supervised by a certified behavior analyst. The annual maximum benefit for applied
82 behavior analysis required by this subdivision shall be in an amount not to exceed $90,000 per
83 individual for three consecutive years from the date treatment commences. At the conclusion of
84 the third year, coverage for applied behavior analysis required by this subdivision shall be in an
85 amount not to exceed $6,000 per month, until the individual reaches 18 years of age, as long as
86 the treatment is medically necessary and in accordance with a treatment plan developed by a
87 certified behavior analyst pursuant to a comprehensive evaluation or reevaluation of the
88 individual. This subdivision does not limit, replace, or affect any obligation to provide services to an
89 individual under the Individuals with Disabilities Education Act, 20 U. S. C. §1400 et seq., as
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90 amended from time to time, or other publicly funded programs. Nothing in this subdivision requires
91 reimbursement for services provided by public school personnel.
92 (C) The certified behavior analyst shall file progress reports with the agency semiannually.
93 In order for treatment to continue, the agency must receive objective evidence or a clinically
94 supportable statement of expectation that:
95 (i) The individual’s condition is improving in response to treatment;
96 (ii) A maximum improvement is yet to be attained; and
97 (iii) There is an expectation that the anticipated improvement is attainable in a reasonable
98 and generally predictable period of time.
99 (D) To the extent that the provisions of this subdivision require benefits that exceed the
100 essential health benefits specified under section 1302(b) of the Patient Protection and Affordable
101 Care Act, Pub. L. No. 111-148, as amended, the specific benefits that exceed the specified
102 essential health benefits shall not be required of insurance plans offered by the Public Employees
103 Insurance Agency.
104 (9) For plans that include maternity benefits, coverage for the same maternity benefits for
105 all individuals participating in or receiving coverage under plans that are issued or renewed on or
106 after January 1, 2014: Provided, That to the extent that the provisions of this subdivision require
107 benefits that exceed the essential health benefits specified under section 1302(b) of the Patient
108 Protection and Affordable Care Act, Pub. L. No. 111-148, as amended, the specific benefits that
109 exceed the specified essential health benefits shall not be required of a health benefit plan when
110 the plan is offered in this state.
111 (10) (A) Coverage, through the age of 20, for amino acid-based formula for the treatment of
112 severe protein-allergic conditions or impaired absorption of nutrients caused by disorders affecting
113 the absorptive surface, function, length, and motility of the gastrointestinal tract. This includes the
114 following conditions, if diagnosed as related to the disorder by a physician licensed to practice in
115 this state pursuant to either §30-3-1 et seq. or §30-14-1 et seq. of this code:
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116 (i) Immunoglobulin E and nonimmunoglobulin E-medicated allergies to multiple food
117 proteins;
118 (ii) Severe food protein-induced enterocolitis syndrome;
119 (iii) Eosinophilic disorders as evidenced by the results of a biopsy; and
120 (iv) Impaired absorption of nutrients caused by disorders affecting the absorptive surface,
121 function, length, and motility of the gastrointestinal tract (short bowel).
122 (B) The coverage required by paragraph (A) of this subdivision shall include medical foods
123 for home use for which a physician has issued a prescription and has declared them to be
124 medically necessary, regardless of methodology of delivery.
125 (C) For purposes of this subdivision, "medically necessary foods" or "medical foods" shall
126 mean prescription amino acid-based elemental formulas obtained through a pharmacy: Provided,
127 That these foods are specifically designated and manufactured for the treatment of severe allergic
128 conditions or short bowel.
129 (D) The provisions of this subdivision shall not apply to persons with an intolerance for
130 lactose or soy.
131 (11) The cost for coverage of children’s immunization services from birth through age 16
132 years to provide immunization against the following illnesses: Diphtheria, polio, mumps, measles,
133 rubella, tetanus, hepatitis-b, hemophilia influenzae-b, and whooping cough. Any contract entered
134 into to cover these services shall require that all costs associated with immunization, including the
135 cost of the vaccine, if incurred by the health care provider, and all costs of vaccine administration
136 be exempt from any deductible, per visit charge, and copayment provisions which may be in force
137 in these policies or contracts. This section does not require that other health care services
138 provided at the time of immunization be exempt from any deductible or copayment provisions.
139 (12) The provision requiring coverage for 12-month refill for contraceptive drugs codified at
140 §33-58-1 of this code.
141 (13) The group life and accidental death insurance herein provided shall be in the amount
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142 of $10,000 for every employee.
143 (b) The agency shall make available to each eligible employee, at full cost to the employee,
144 the opportunity to purchase optional group life and accidental death insurance as established
145 under the rules of the agency. In addition, each employee is entitled to have his or her spouse and
146 dependents, as defined by the rules of the agency, included in the optional coverage, at full cost to
147 the employee, for each eligible dependent.
148 (c) The finance board may cause to be separately rated for claims experience purposes:
149 (1) All employees of the State of West Virginia;
150 (2) All teaching and professional employees of state public institutions of higher education
151 and county boards of education;
152 (3) All nonteaching employees of the Higher Education Policy Commission, West Virginia
153 Council for Community and Technical College Education, and county boards of education; or
154 (4) Any other categorization which would ensure the stability of the overall program.
155 (d) The agency shall maintain the medical and prescription drug coverage for Medicare-
156 eligible retirees by providing coverage through one of the existing plans or by enrolling the
157 Medicare-eligible retired employees into a Medicare-specific plan, including, but not limited to, the
158 Medicare/Advantage Prescription Drug Plan. If a Medicare-specific plan is no longer available or
159 advantageous for the agency and the retirees, the retirees remain eligible for coverage through the
160 agency.
161 (e) The agency shall establish procedures to authorize treatment with a nonparticipating
162 provider if a covered service is not available within established time and distance standards and
163 within a reasonable period after service is requested, and with the same coinsurance, deductible,
164 or copayment requirements as would apply if the service were provided at a participating provider,
165 and at no greater cost to the covered person than if the services were obtained at or from a
166 participating provider.
167 (f) If the Public Employees Insurance Agency offers a plan that does not cover services
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168 provided by an out-of-network provider, it may provide the benefits required in paragraph (A),
169 subdivision (6), subsection (a) of this section if the services are rendered by a provider who is
170 designated by and affiliated with the Public Employees Insurance Agency, and only if the same
171 requirements apply for services for a physical illness.
172 (g) In the event of a concurrent review for a claim for coverage of services for the
173 prevention of, screening for, and treatment of behavioral health, mental health, and substance use
174 disorders, the service continues to be a covered service until the Public Employees Insurance
175 Agency notifies the covered person of the determination of the claim.
176 (h) Unless denied for nonpayment of premium, a denial of reimbursement for services for
177 the prevention of, screening for, or treatment of behavioral health, mental health, and substance
178 use disorders by the Public Employees Insurance Agency shall include the following language:
179 (1) A statement explaining that covered persons are protected under this section, which
180 provides that limitations placed on the access to mental he