38.2-3407.12 - Patient optional point-of-service benefit.
§ 38.2-3407.12. Patient optional point-of-service benefit.
A. As used in this section:
"Affiliate" shall have the meaning set forth in § 38.2-1322.
"Allowable charge" means the amount from which the carrier's payment to aprovider for any covered item or service is determined before taking intoaccount any cost-sharing arrangement.
"Carrier" means:
1. Any insurer licensed under this title proposing to offer or issue accidentand sickness insurance policies which are subject to Chapter 34 (§ 38.2-3400et seq.) or 39 (§ 38.2-3900 et seq.) of this title;
2. Any nonstock corporation licensed under this title proposing to issue ordeliver subscription contracts for one or more health services plans, medicalor surgical services plans or hospital services plans which are subject toChapter 42 (§ 38.2-4200 et seq.) of this title;
3. Any health maintenance organization licensed under this title whichprovides or arranges for the provision of one or more health care plans whichare subject to Chapter 43 (§ 38.2-4300 et seq.) of this title;
4. Any nonstock corporation licensed under this title proposing to issue ordeliver subscription contracts for one or more dental or optometric servicesplans which are subject to Chapter 45 (§ 38.2-4500 et seq.) of this title; and
5. Any other person licensed under this title which provides or arranges forthe provision of health care coverage or benefits or health care plans orprovider panels which are subject to regulation as the business of insuranceunder this title.
"Co-insurance" means the portion of the carrier's allowable charge for thecovered item or service which is not paid by the carrier and for which theenrollee is responsible.
"Co-payment" means the out-of-pocket charge other than co-insurance or adeductible for an item or service to be paid by the enrollee to the providertowards the allowable charge as a condition of the receipt of specific healthcare items and services.
"Cost sharing arrangement" means any co-insurance, co-payment, deductibleor similar arrangement imposed by the carrier on the enrollee as a conditionto or consequence of the receipt of covered items or services.
"Deductible" means the dollar amount of a covered item or service which theenrollee is obligated to pay before benefits are payable under the carrier'spolicy or contract with the group contract holder.
"Enrollee" or "member" means any individual who is enrolled in a grouphealth benefit plan provided or arranged by a health maintenance organizationor other carrier. If a health maintenance organization arranges or contractsfor the point-of-service benefit required under this section through anothercarrier, any enrollee selecting the point-of-service benefit shall be treatedas an enrollee of that other carrier when receiving covered items or servicesunder the point-of-service benefit.
"Group contract holder" means any contract holder of a group health benefitplan offered or arranged by a health maintenance organization or othercarrier. For purposes of this section, the group contract holder shall be theperson to which the group agreement or contract for the group health benefitplan is issued.
"Group health benefit plan" shall mean any health care plan, subscriptioncontract, evidence of coverage, certificate, health services plan, medical orhospital services plan, accident and sickness insurance policy orcertificate, or other similar certificate, policy, contract or arrangement,and any endorsement or rider thereto, offered, arranged or issued by acarrier to a group contract holder to cover all or a portion of the cost ofenrollees (or their eligible dependents) receiving covered health care itemsor services. Group health benefit plan does not mean (i) health care plans,contracts or policies issued in the individual market; (ii) coverages issuedpursuant to Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq.(Medicare), Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. orTitle XX of the Social Security Act, 42 U.S.C. § 1397 et seq. (Medicaid), 5U.S.C. § 8901 et seq. (federal employees), 10 U.S.C. § 1071 et seq. (CHAMPUS)or Chapter 28 (§ 2.2-2800 et seq.) of Title 2.2 (state employees); (iii)accident only, credit or disability insurance, or long-term care insurance,plans providing only limited health care services under § 38.2-4300 (unlessoffered by endorsement or rider to a group health benefit plan), CHAMPUSsupplement, Medicare supplement, or workers' compensation coverages; (iv) anemployee welfare benefit plan (as defined in section 3 (1) of the EmployeeRetirement Income Security Act of 1974, 29 U.S.C. § 1002 (1)), which isself-insured or self-funded; or (v) the essential and standard health benefitplans developed pursuant to § 38.2-3431 C.
"Group specific administrative cost" means the direct administrative costincurred by a carrier related to the offer of the point-of-service benefit toa particular group contract holder.
"Health care plan" shall have the meaning set forth in § 38.2-4300.
"Person" means any individual, corporation, trust, association,partnership, limited liability company, organization or other entity.
"Point-of-service benefit" means a health maintenance organization'sdelivery system or covered benefits, or the delivery system or coveredbenefits of another carrier under contract or arrangement with the healthmaintenance organization, which permit an enrollee (and eligible dependents)to receive covered items and services outside of the provider panel,including optometrists and clinical psychologists, of the health maintenanceorganization under the terms and conditions of the group contract holder'sgroup health benefit plan with the health maintenance organization or withanother carrier arranged by or under contract with the health maintenanceorganization and which otherwise complies with this section. Without limitingthe foregoing, the benefits offered or arranged by a carrier's indemnitygroup accident and sickness policy under Chapter 34 (§ 38.2-3400 et seq.) ofthis title, health services plan under Chapter 42 (§ 38.2-4200 et seq.) ofthis title or preferred provider organization plan under Chapter 34 (§38.2-3400 et seq.) or 42 (§ 38.2-4200 et seq.) of this title which permit anenrollee (and eligible dependents) to receive the full range of covered itemsand services outside of a provider panel, including optometrists and clinicalpsychologists, and which are otherwise in compliance with applicable law andthis section shall constitute a point-of-service benefit.
"Preferred provider organization plan" means a health benefit programoffered pursuant to a preferred provider policy or contract under § 38.2-3407or covered services offered under a preferred provider subscription contractunder § 38.2-4209.
"Provider" means any physician, hospital or other person, includingoptometrists and clinical psychologists, that is licensed or otherwiseauthorized in the Commonwealth to deliver or furnish health care items orservices.
"Provider panel" means the participating providers or referral providerswho have a contract, agreement or arrangement with a health maintenanceorganization or other carrier, either directly or through an intermediary,and who have agreed to provide items or services to enrollees of the healthmaintenance organization or other carrier.
B. To the maximum extent permitted by applicable law, every health care planoffered or proposed to be offered in this Commonwealth by a healthmaintenance organization licensed under this title to a group contract holdershall provide or include, or the health maintenance organization shallarrange for or contract with another carrier to provide or include, apoint-of-service benefit to be provided or offered in conjunction with thehealth maintenance organization's health care plan as an additional benefitfor the enrollee, at the enrollee's option, individually to accept or reject.In connection with its group enrollment application, every health maintenanceorganization shall, at no additional cost to the group contract holder, makeavailable or arrange with a carrier to make available to the prospectivegroup contract holder and to all prospective enrollees, in advance of initialenrollment and in advance of each reenrollment, a notice in form andsubstance acceptable to the Commission which accurately and completelyexplains to the group contract holder and prospective enrollee thepoint-of-service benefit and permits each enrollee to make his or herelection. The form of notice provided in connection with any reenrollment maybe the same as the approved form of notice used in connection with initialenrollment and may be made available to the group contract holder andprospective enrollee by the carrier in any reasonable manner.
C. To the extent permitted under applicable law, a health maintenanceorganization providing or arranging, or contracting with another carrier toprovide, the point-of-service benefit under this section and a carrierproviding the point-of-service benefit required under this section underarrangement or contract with a health maintenance organization:
1. May not impose, or permit to be imposed, a minimum enrollee participationlevel on the point-of-service benefit alone;
2. May not refuse to reimburse a provider of the type listed or referred toin § 38.2-3408 or § 38.2-4221 for items or services provided under thepoint-of-service benefit required under this section solely on the basis ofthe license or certification of the provider to provide such items orservices if the carrier otherwise covers the items or services provided andthe provision of the items or services is within the provider's lawful scopeof practice or authority; and
3. Shall rate and underwrite all prospective enrollees of the group contractholder as a single group prior to any enrollee electing to accept or rejectthe point-of-service benefit.
D. The premium imposed by a carrier with respect to enrollees who select thepoint-of-service benefit may be different from that imposed by the healthmaintenance organization with respect to enrollees who do not select thepoint-of-service benefit. Unless a group contract holder determinesotherwise, any enrollee who accepts the point-of-service benefit shall beresponsible for the payment of any premium over the amount of the premiumapplicable to an enrollee who selects the coverage offered by the healthmaintenance organization without the point-of-service benefit and for anyidentifiable group specific administrative cost incurred directly by thecarrier or any administrative cost incurred by the group contract holder inoffering the point-of-service benefit to the enrollee. If a carrier offersthe point-of-service benefit to a group contract holder where no enrollees ofthe group contract holder elect to accept the point-of-service benefit andincurs an identifiable group specific administrative cost directly as aconsequence of the offering to that group contract holder, the carrier mayreflect that group specific administrative cost in the premium charged toother enrollees selecting the point-of-service benefit under this section.Unless the group contract holder otherwise directs or authorizes the carrierin writing, the carrier shall make reasonable efforts to ensure that noportion of the cost of offering or arranging the point-of-service benefitshall be reflected in the premium charged by the carrier to the groupcontract holder for a group health benefit plan without the point-of-servicebenefit. Any premium differential and any group specific administrative costimposed by a carrier relating to the cost of offering or arranging thepoint-of-service benefit must be actuarially sound and supported by a sworncertification of an officer of each carrier offering or arranging thepoint-of-service benefit filed with the Commission certifying that thepremiums are based on sound actuarial principles and otherwise comply withthis section. The certifications shall be in a form, and shall be accompaniedby such supporting information in a form acceptable to the Commission.
E. Any carrier may impose different co-insurance, co-payments, deductiblesand other cost-sharing arrangements for the point-of-service benefit requiredunder this section based on whether or not the item or service is providedthrough the provider panel of the health maintenance organization; providedthat, except to the extent otherwise prohibited by applicable law, any suchcost-sharing arrangement:
1. Shall not impose on the enrollee (or his or her eligible dependents, asappropriate) any co-insurance percentage obligation which is payable by theenrollee which exceeds the greater of: (i) thirty percent of the carrier'sallowable charge for the items or services provided by the provider under thepoint-of-service benefit or (ii) the co-insurance amount which would havebeen required had the covered items or services been received through theprovider panel;
2. Shall not impose on an enrollee (or his or her eligible dependents, asappropriate) a co-payment or deductible which exceeds the greatest co-paymentor deductible, respectively, imposed by the carrier or its affiliate underone or more other group health benefit plans providing a point-of-servicebenefit which are currently offered and actively marketed by the carrier orits affiliate in the Commonwealth and are subject to regulation under thistitle; and
3. Shall not result in annual aggregate cost-sharing payments to the enrollee(or his or her eligible dependents, as appropriate) which exceed the greatestannual aggregate cost-sharing payments which would apply had the covereditems or services been received under another group health benefit planproviding a point-of-service benefit which is currently offered and activelymarketed by the carrier or its affiliate in the Commonwealth and which issubject to regulation under this title.
F. Except to the extent otherwise required under applicable law, any carrierproviding the point-of-service benefit required under this section may notutilize an allowable charge or basis for determining the amount to bereimbursed or paid to any provider from which covered items or services arereceived under the point-of-service benefit which is not at least asfavorable to the provider as that used:
1. By the carrier or its affiliate in calculating the reimbursement orpayment to be made to similarly situated providers under another group healthbenefit plan providing a point-of-service benefit which is subject toregulation under this title and which is currently offered or arranged by thecarrier or its affiliate and actively marketed in the Commonwealth, if thecarrier or its affiliate offers or arranges another such group health benefitplan providing a point-of-service benefit in the Commonwealth; or
2. By the health maintenance organization in calculating the reimbursement orpayment to be made to similarly situated providers on its provider panel.
G. Except as expressly permitted in this section or required under applicablelaw, no carrier shall impose on any person receiving or providing health careitems or services under the point-of-service benefit any condition or penaltydesigned to discourage the enrollee's selection or use of thepoint-of-service benefit, which is not otherwise similarly imposed either:(i) on enrollees in another group health benefit plan, if any, currentlyoffered or arranged and actively marketed by the carrier or its affiliate inthe Commonwealth or (ii) on enrollees who receive the covered items orservices from the health maintenance organization's provider panel. Nothingin this section shall preclude a carrier offering or arranging apoint-of-service benefit from imposing on enrollees selecting thepoint-of-service benefit reasonable utilization review, preadmissioncertification or precertification requirements or other utilization or costcontrol measures which are similarly imposed on enrollees participating inone or more other group health benefit plans which are subject to regulationunder this title and are currently offered and actively marketed by thecarrier or its affiliates in the Commonwealth or which are otherwise requiredunder applicable law.
H. Except as expressly otherwise permitted in this section or as otherwiserequired under applicable law, the scope of the health care items andservices which are covered under the point-of-service benefit required underthis section shall at least include the same health care items and serviceswhich would be covered if provided under the health maintenanceorganization's health care plan, including without limitation any items orservices covered under a rider or endorsement to the applicable health careplan. Carriers shall be required to disclose prominently in all group healthbenefit plans and in all marketing materials utilized with respect to suchgroup health benefit plans that the scope of the benefits provided under thepoint-of-service option are at least as great as those provided through theHMO's health care plan for that group. Filings of point-of-service benefitssubmitted to the Commission shall be accompanied by a certification signed byan officer of the filing carrier certifying that the scope of thepoint-of-service benefits includes at a minimum the same health care itemsand services as are provided under the HMO's group health care plan for thatgroup.
I. Nothing in this section shall prohibit a health maintenance organizationfrom offering or arranging the point-of-service benefit (i) as a separategroup health benefit plan or under a different name than the healthmaintenance organization's group health benefit plan which does not containthe point-of-service benefit or (ii) from managing a group health benefitplan under which the point-of-service benefit is offered in a manner whichseparates or otherwise differentiates it from the group health benefit planwhich does not contain the point-of-service benefit.
J. Notwithstanding anything in this section to the contrary, to the extentpermitted under applicable law, no health maintenance organization shall berequired to offer or arrange a point-of-service benefit under this sectionwith respect to any group health benefit plan offered to a group contractholder if the health maintenance organization determines in good faith thatthe group contract holder will be concurrently offering another group healthbenefit plan or a self-insured or self-funded health benefit plan whichallows the enrollees to access care from their provider of choice whether ornot the provider is a member of the health maintenance organization's panel.
K. This section shall apply only to group health benefit plans issued in theCommonwealth in the commercial group market by carriers regulated by thistitle and shall not apply to (i) health care plans, contracts or policiesissued in the individual market; (ii) coverages issued pursuant to TitleXVIII of the Social Security Act, 42 U.S.C. § 1395 et seq. (Medicare), TitleXIX of the Social Security Act, 42 U.S.C. § 1396 et seq. or Title XX of theSocial Security Act, 42 U.S.C. § 1397 et seq. (Medicaid), 5 U.S.C. § 8901 etseq. (federal employees), 10 U.S.C. § 1071 et seq. (CHAMPUS) or Chapter 28 (§2.2-2800 et seq.) of Title 2.2 (state employees); (iii) accident only, creditor disability insurance, or long-term care insurance, plans providing onlylimited health care services under § 38.2-4300 (unless offered by endorsementor rider to a group health benefit plan), CHAMPUS supplement, Medicaresupplement, or workers' compensation coverages; (iv) an employee welfarebenefit plan (as defined in section 3 (1) of the Employee Retirement IncomeSecurity Act of 1974, 29 U.S.C. § 1002 (1)), which is self-insured orself-funded; or (v) the essential and standard health benefit plans developedpursuant to § 38.2-3431 C.
L. This section shall apply to group health benefit plans issued or renewedby carriers in this Commonwealth on or after July 1, 1998.
M. Nothing in this section shall operate to limit any rights or obligationsarising under §§ 38.2-3407, 38.2-3407.7, 38.2-3407.10, 38.2-3407.11,38.2-4209, 38.2-4209.1, 38.2-4312 or § 38.2-4312.1.
N. If any provision of this section or its application to any person orcircumstance is held invalid for any reason in a court of competentjurisdiction, the invalidity shall not affect the other provisions or anyother application of this section which shall be given effect without theinvalid provision or application, and for this purpose the provisions of thissection are declared severable.
(1998, c. 908.)