SB 766

            
2020 SESSION

20104452D

SENATE BILL NO. 766


Offered January 8, 2020


Prefiled January 8, 2020

A BILL to amend and reenact �� 32.1-330.2 and 38.2-3407.4 and 
 of the Code of Virginia, relating to health care; explanation of benefits; 
 sensitive health care services.
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Patron-- Barker

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Referred to Committee on Commerce and Labor

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Be it enacted by the General Assembly of Virginia:
 
 
1. That �� 32.1-330.2 and 38.2-3407.4 of the Code of Virginia 
 are amended and reenacted as follows:
 
 
� 32.1-330.2. Medicaid managed care programs; program 
 information documents; plain language required.
 
 
A. Whenever medical assistance services pursuant to this 
 chapter are furnished through managed care programs, the Board of Medical 
 Assistance Services shall require that all program information documents 
 furnished recipients covered thereunder shall be written in nontechnical, 
 readily understandable language, using words of common, everyday usage.
 
 
B. Each sponsor or administrator of any such managed care 
 program shall test the readability of its program information documents by use 
 of the Flesch Readability Formula, as set forth in Rudolf Flesch, The Art of 
 Readable Writing (1949, as revised 1974), and no program information document 
 shall be used unless it achieves a Flesch total readability score of forty 40 
 or more. The requirements of this subsection shall not apply to language which that 
 is mandated by federal or state laws, regulations, 
 or agencies.
 
 
C. All program information documents within the scope of this 
 section, and all amendments thereto, shall be filed with the Department of 
 Medical Assistance Services in advance of their use and distribution, 
 accompanied by certificates setting forth the Flesch scores and certifying 
 compliance with the requirements of this section. Any program information 
 document which that 
 is exempt from the requirements of subsection B shall be accompanied by a 
 documentation of the federal or state law, regulation, 
 or agency mandate that authorizes the exemption.
 
 
D. For the purpose of this section, the term "program 
 information documents" means all forms, brochures, handbooks, or other documentation (i) 
 provided recipients covered under Medicaid managed care programs, and (ii) describing the 
 programs medical care coverages and the rights and responsibilities of 
 recipients covered thereunder. Further, the term "recipient" shall include includes potential recipients 
 and recipients.
 
 
E. Each contract 
 between the Department and a sponsor or 
 administrator that contracts with the Department to provide services through 
 the Medicaid managed care program shall require that the 
 sponsor or administrator provide each recipient covered under its program with an 
 explanation of benefits that complies with the requirements of � 38.2-3407.4.
 
 
� 38.2-3407.4. Explanation of benefits.
 
 
A. As used in this section:
 
 
"Carrier" means any 
 insurer issuing an accident and sickness insurance policy, corporation issuing 
 subscription contracts, health maintenance organization, or managed 
 care organization.
 
 
"Explanation 
 of benefits" means a form provided by a carrier that 
 explains the amounts covered under a policy or plan and shows the 
 amounts payable by a covered person or recipient to a 
 health care provider.
 
 
"Managed care 
 organization" means a sponsor or 
 administrator that contracts with the Department of Medical Assistance Services 
 to provide services through the Medicaid managed care program.
 
 
"Sensitive health care 
 services" includes health care services that a 
 covered person or recipient may reasonably be expected to prefer not be 
 disclosed to another person, such as services related to reproductive 
 health, mental health, or substance 
 use disorders, provided 
 that the specific health care services that 
 constitute sensitive health care services shall be as specified in 
 regulations adopted by the Commission 
 that define sensitive health care services as required by subdivision D 4.
 
 
B. Each insurer issuing an accident and sickness insurance 
 policy, a corporation issuing 
 subscription contracts, and each health 
 maintenance organization carrier 
 shall file for approval provide to covered persons or 
 recipients an explanation of benefits forms in a form 
 approved by the Commission. These explanation of 
 benefit forms shall be subject to the requirements of � 38.2-316 or � 38.2-4306, as applicable.
 
 
B. C. The 
 explanation of benefits shall accurately and clearly set forth the benefits 
 payable under the contract or program.
 
 
C. D. The 
 Commission may issue shall adopt regulations to establish that:
 
 
1. Establish 
 standards for the accuracy and clarity of the information presented in an 
 explanation of benefits.
 
 
D. The term "explanation 
 of benefits" as used in this section shall include any form provided by 
 an insurer, health services plan or health maintenance organization which explains 
 the amounts covered under a policy or plan or shows the amounts payable by a 
 covered person to a health care provider;
 
 
2. Establish alternative 
 methods of 
 delivery of the explanation of benefits that 
 permit (i) a subscriber who is legally authorized to 
 consent to care for a covered 
 person or recipient, (ii) a covered 
 person or recipient who is 
 legally authorized to consent to that covered persons or 
 recipients own care, or (iii) 
 another party who has the exclusive legal authorization to consent to care for 
 the covered person or recipient to receive the 
 explanation of benefits by an 
 alternative method, provided that such alternative method is in 
 compliance with the provisions of 45 C.F.R. � 164.522 regarding 
 the right to request privacy protection for protected health information;
 
 
3. Require the 
 carrier to take all reasonable actions 
 to ensure that its internal processes and systems prohibit the 
 identification or description of 
 sensitive health care services in its 
 explanations of benefits; and
 
 
4. Define "sensitive 
 health care services." In developing that 
 definition, the Commission shall consider the 
 recommendations of the National Committee on Vital and Health Statistics and 
 similar regulations in other states and shall consult with experts in fields 
 including infectious disease, reproductive and sexual health, domestic violence 
 and sexual assault, mental health, and 
 substance use disorders.
 
 
E. A carrier that requires a 
 covered person to make a request for confidential communications in writing in 
 accordance with 45 C.F.R. � 164.522(b) shall accept the 
 form of the explanation of benefits approved by the Commission.
 
 
2. That by August 1, 2020, the State Corporation Commission 
 shall commence a proceeding in accordance with its rules of practice and 
 procedure for the adoption of the regulations that are required by subsection D 
 of � 38.2-3407.4 of the Code of Virginia as amended and reenacted by this act.
 
 
3. That the provisions of the 
 first enactment of this act shall become effective 90 days after the date the State 
 Corporation Commission enters a final order adopting the regulations pursuant 
 to the proceeding commenced pursuant to the second enactment of this act.