Text of WA SB 5889 (2019)

AN ACT Relating to insurance communications confidentiality; 1 amending RCW 48.43.005, 48.43.505, 48.43.510, and 48.43.530; adding a 2 new section to chapter 48.43 RCW; creating a new section; and 3 providing an effective date. 4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON: 5 NEW SECTION. Sec. 1. The legislature finds and declares: 6 (1) All people deserve the right to choose the health services 7 that are right for them, and the right to confidential access to 8 those health services. 9 (2) When people are assured of the ability to confidentially 10 access health care services, they are more likely to seek health 11 services, disclose health risk behaviors to a clinician, and return 12 for follow-up care. 13 (3) When denied confidential access to needed care, people may 14 delay or forgo care, leading to higher rates of unprotected sex, 15 unintended pregnancy, untreated sexually transmitted infections, and 16 mental health issues, or they may turn to public health safety net 17 funds or free clinics to receive confidential care—important 18 resources that should be reserved for people who do not have 19 insurance coverage. 20 S-1444.1 SENATE BILL 5889 State of Washington 66th Legislature 2019 Regular Session By Senator Dhingra p. 1 SB 5889 Sec. 2. RCW 48.43.005 and 2016 c 65 s 2 are each amended to read 1 as follows: 2 Unless otherwise specifically provided, the definitions in this 3 section apply throughout this chapter. 4 (1) "Adjusted community rate" means the rating method used to 5 establish the premium for health plans adjusted to reflect 6 actuarially demonstrated differences in utilization or cost 7 attributable to geographic region, age, family size, and use of 8 wellness activities. 9 (2) "Adverse benefit determination" means a denial, reduction, or 10 termination of, or a failure to provide or make payment, in whole or 11 in part, for a benefit, including a denial, reduction, termination, 12 or failure to provide or make payment that is based on a 13 determination of an enrollee's or applicant's eligibility to 14 participate in a plan, and including, with respect to group health 15 plans, a denial, reduction, or termination of, or a failure to 16 provide or make payment, in whole or in part, for a benefit resulting 17 from the application of any utilization review, as well as a failure 18 to cover an item or service for which benefits are otherwise provided 19 because it is determined to be experimental or investigational or not 20 medically necessary or appropriate. 21 (3) "Applicant" means a person who applies for enrollment in an 22 individual health plan as the subscriber or an enrollee, or the 23 dependent or spouse of a subscriber or enrollee. 24 (4) "Basic health plan" means the plan described under chapter 25 70.47 RCW, as revised from time to time. 26 (5) "Basic health plan model plan" means a health plan as 27 required in RCW 70.47.060(2)(e). 28 (6) "Basic health plan services" means that schedule of covered 29 health services, including the description of how those benefits are 30 to be administered, that are required to be delivered to an enrollee 31 under the basic health plan, as revised from time to time. 32 (7) "Board" means the governing board of the Washington health 33 benefit exchange established in chapter 43.71 RCW. 34 (8)(a) For grandfathered health benefit plans issued before 35 January 1, 2014, and renewed thereafter, "catastrophic health plan" 36 means: 37 (i) In the case of a contract, agreement, or policy covering a 38 single enrollee, a health benefit plan requiring a calendar year 39 deductible of, at a minimum, one thousand seven hundred fifty dollars 40 p. 2 SB 5889 and an annual out-of-pocket expense required to be paid under the 1 plan (other than for premiums) for covered benefits of at least three 2 thousand five hundred dollars, both amounts to be adjusted annually 3 by the insurance commissioner; and 4 (ii) In the case of a contract, agreement, or policy covering 5 more than one enrollee, a health benefit plan requiring a calendar 6 year deductible of, at a minimum, three thousand five hundred dollars 7 and an annual out-of-pocket expense required to be paid under the 8 plan (other than for premiums) for covered benefits of at least six 9 thousand dollars, both amounts to be adjusted annually by the 10 insurance commissioner. 11 (b) In July 2008, and in each July thereafter, the insurance 12 commissioner shall adjust the minimum deductible and out-of-pocket 13 expense required for a plan to qualify as a catastrophic plan to 14 reflect the percentage change in the consumer price index for medical 15 care for a preceding twelve months, as determined by the United 16 States department of labor. For a plan year beginning in 2014, the 17 out-of-pocket limits must be adjusted as specified in section 18 1302(c)(1) of P.L. 111-148 of 2010, as amended. The adjusted amount 19 shall apply on the following January 1st. 20 (c) For health benefit plans issued on or after January 1, 2014, 21 "catastrophic health plan" means: 22 (i) A health benefit plan that meets the definition of 23 catastrophic plan set forth in section 1302(e) of P.L. 111-148 of 24 2010, as amended; or 25 (ii) A health benefit plan offered outside the exchange 26 marketplace that requires a calendar year deductible or out-of-pocket 27 expenses under the plan, other than for premiums, for covered 28 benefits, that meets or exceeds the commissioner's annual adjustment 29 under (b) of this subsection. 30 (9) "Certification" means a determination by a review 31 organization that an admission, extension of stay, or other health 32 care service or procedure has been reviewed and, based on the 33 information provided, meets the clinical requirements for medical 34 necessity, appropriateness, level of care, or effectiveness under the 35 auspices of the applicable health benefit plan. 36 (10) "Concurrent review" means utilization review conducted 37 during a patient's hospital stay or course of treatment. 38 (11) "Covered person" or "enrollee" means a person covered by a 39 health plan including an enrollee, subscriber, policyholder, 40 p. 3 SB 5889 beneficiary of a group plan, or individual covered by any other 1 health plan. 2 (12) "Dependent" means, at a minimum, the enrollee's legal spouse 3 and dependent children who qualify for coverage under the enrollee's 4 health benefit plan. 5 (13) "Emergency medical condition" means a medical condition 6 manifesting itself by acute symptoms of sufficient severity, 7 including severe pain, such that a prudent layperson, who possesses 8 an average knowledge of health and medicine, could reasonably expect 9 the absence of immediate medical attention to result in a condition 10 (a) placing the health of the individual, or with respect to a 11 pregnant woman, the health of the woman or her unborn child, in 12 serious jeopardy, (b) serious impairment to bodily functions, or (c) 13 serious dysfunction of any bodily organ or part. 14 (14) "Emergency services" means a medical screening examination, 15 as required under section 1867 of the social security act (42 U.S.C. 16 1395dd), that is within the capability of the emergency department of 17 a hospital, including ancillary services routinely available to the 18 emergency department to evaluate that emergency medical condition, 19 and further medical examination and treatment, to the extent they are 20 within the capabilities of the staff and facilities available at the 21 hospital, as are required under section 1867 of the social security 22 act (42 U.S.C. 1395dd) to stabilize the patient. Stabilize, with 23 respect to an emergency medical condition, has the meaning given in 24 section 1867(e)(3) of the social security act (42 U.S.C. 25 1395dd(e)(3)). 26 (15) "Employee" has the same meaning given to the term, as of 27 January 1, 2008, under section 3(6) of the federal employee 28 retirement income security act of 1974. 29 (16) "Enrollee point-of-service cost-sharing" means amounts paid 30 to health carriers directly providing services, health care 31 providers, or health care facilities by enrollees and may include 32 copayments, coinsurance, or deductibles. 33 (17) "Exchange" means the Washington health benefit exchange 34 established under chapter 43.71 RCW. 35 (18) "Final external review decision" means a determination by an 36 independent review organization at the conclusion of an external 37 review. 38 (19) "Final internal adverse benefit determination" means an 39 adverse benefit determination that has been upheld by a health plan 40 p. 4 SB 5889 or carrier at the completion of the internal appeals process, or an 1 adverse benefit determination with respect to which the internal 2 appeals process has been exhausted under the exhaustion rules 3 described in RCW 48.43.530 and 48.43.535. 4 (20) "Grandfathered health plan" means a group health plan or an 5 individual health plan that under section 1251 of the patient 6 protection and affordable care act, P.L. 111-148 (2010) and as 7 amended by the health care and education reconciliation act, P.L. 8 111-152 (2010) is not subject to subtitles A or C of the act as 9 amended. 10 (21) "Grievance" means a written complaint submitted by or on 11 behalf of a covered person regarding service delivery issues other 12 than denial of payment for medical services or nonprovision of 13 medical services, including dissatisfaction with medical care, 14 waiting time for medical services, provider or staff attitude or 15 demeanor, or dissatisfaction with service provided by the health 16 carrier. 17 (22) "Health care facility" or "facility" means hospices licensed 18 under chapter 70.127 RCW, hospitals licensed under chapter 70.41 RCW, 19 rural health care facilities as defined in RCW 70.175.020, 20 psychiatric hospitals licensed under chapter 71.12 RCW, nursing homes 21 licensed under chapter 18.51 RCW, community mental health centers 22 licensed under chapter 71.05 or 71.24 RCW, kidney disease treatment 23 centers licensed under chapter 70.41 RCW, ambulatory diagnostic, 24 treatment, or surgical facilities licensed under chapter 70.41 RCW, 25 drug and alcohol treatment facilities licensed under chapter 70.96A 26 RCW, and home health agencies licensed under chapter 70.127 RCW, and 27 includes such facilities if owned and operated by a political 28 subdivision or instrumentality of the state and such other facilities 29 as required by federal law and implementing regulations. 30 (23) "Health care provider" or "provider" means: 31 (a) A person regulated under Title 18 or chapter 70.127 RCW, to 32 practice health or health-related services or otherwise practicing 33 health care services in this state consistent with state law; or 34 (b) An employee or agent of a person described in (a) of this 35 subsection, acting in the course and scope of his or her employment. 36 (24) "Health care service" means that service offered or provided 37 by health care facilities and health care providers relating to the 38 prevention, cure, or treatment of illness, injury, or disease. 39 p. 5 SB 5889 (25) "Health carrier" or "carrier" means a disability insurer 1 regulated under chapter 48.20 or 48.21 RCW, a health care service 2 contractor as defined in RCW 48.44.010, or a health maintenance 3 organization as defined in RCW 48.46.020, and includes "issuers" as 4 that term is used in the patient protection and affordable care act 5 (P.L. 111-148). 6 (26) "Health plan" or "health benefit plan" means any policy, 7 contract, or agreement offered by a health carrier to provide, 8 arrange, reimburse, or pay for health care services except the 9 following: 10 (a) Long-term care insurance governed by chapter 48.84 or 48.83 11 RCW; 12 (b) Medicare supplemental health insurance governed by chapter 13 48.66 RCW; 14 (c) Coverage supplemental to the coverage provided under chapter 15 55, Title 10, United States Code; 16 (d) Limited health care services offered by limited health care 17 service contractors in accordance with RCW 48.44.035; 18 (e) Disability income; 19 (f) Coverage incidental to a property/casualty liability 20 insurance policy such as automobile personal injury protection 21 coverage and homeowner guest medical; 22 (g) Workers' compensation coverage; 23 (h) Accident only coverage; 24 (i) Specified disease or illness-triggered fixed payment 25 insurance, hospital confinement fixed payment insurance, or other 26 fixed payment insurance offered as an independent, noncoordinated 27 benefit; 28 (j) Employer-sponsored self-funded health plans; 29 (k) Dental only and vision only coverage; 30 (l) Plans deemed by the insurance commissioner to have a short- 31 term limited purpose or duration, or to be a student-only plan that 32 is guaranteed renewable while the covered person is enrolled as a 33 regular full-time undergraduate or graduate student at an accredited 34 higher education institution, after a written request for such 35 classification by the carrier and subsequent written approval by the 36 insurance commissioner; and 37 (m) Civilian health and medical program for the veterans affairs 38 administration (CHAMPVA). 39 p. 6 SB 5889 (27) "Individual market" means the market for health insurance 1 coverage offered to individuals other than in connection with a group 2 health plan. 3 (28) "Material modification" means a change in the actuarial 4 value of the health plan as modified of more than five percent but 5 less than fifteen percent. 6 (29) "Open enrollment" means a period of time as defined in rule 7 to be held at the same time each year, during which applicants may 8 enroll in a carrier's individual health benefit plan without being 9 subject to health screening or otherwise required to provide evidence 10 of insurability as a condition for enrollment. 11 (30) "Preexisting condition" means any medical condition, 12 illness, or injury that existed any time prior to the effective date 13 of coverage. 14 (31) "Premium" means all sums charged, received, or deposited by 15 a health carrier as consideration for a health plan or the 16 continuance of a health plan. Any assessment or any "membership," 17 "policy," "contract," "service," or similar fee or charge made by a 18 health carrier in consideration for a health plan is deemed part of 19 the premium. "Premium" shall not include amounts paid as enrollee 20 point-of-service cost-sharing. 21 (32) "Review organization" means a disability insurer regulated 22 under chapter 48.20 or 48.21 RCW, health care service contractor as 23 defined in RCW 48.44.010, or health maintenance organization as 24 defined in RCW 48.46.020, and entities affiliated with, under 25 contract with, or acting on behalf of a health carrier to perform a 26 utilization review. 27 (33) "Small employer" or "small group" means any person, firm, 28 corporation, partnership, association, political subdivision, sole 29 proprietor, or self-employed individual that is actively engaged in 30 business that employed an average of at least one but no more than 31 fifty employees, during the previous calendar year and employed at 32 least one employee on the first day of the plan year, is not formed 33 primarily for purposes of buying health insurance, and in which a 34 bona fide employer-employee relationship exists. In determining the 35 number of employees, companies that are affiliated companies, or that 36 are eligible to file a combined tax return for purposes of taxation 37 by this state, shall be considered an employer. Subsequent to the 38 issuance of a health plan to a small employer and for the purpose of 39 determining eligibility, the size of a small employer shall be 40 p. 7 SB 5889 determined annually. Except as otherwise specifically provided, a 1 small employer shall continue to be considered a small employer until 2 the plan anniversary following the date the small employer no longer 3 meets the requirements of this definition. A self-employed individual 4 or sole proprietor who is covered as a group of one must also: (a) 5 Have been employed by the same small employer or small group for at 6 least twelve months prior to application for small group coverage, 7 and (b) verify that he or she derived at least seventy-five percent 8 of his or her income from a trade or business through which the 9 individual or sole proprietor has attempted to earn taxable income 10 and for which he or she has filed the appropriate internal revenue 11 service form 1040, schedule C or F, for the previous taxable year, 12 except a self-employed individual or sole proprietor in an 13 agricultural trade or business, must have derived at least fifty-one 14 percent of his or her income from the trade or business through which 15 the individual or sole proprietor has attempted to earn taxable 16 income and for which he or she has filed the appropriate internal 17 revenue service form 1040, for the previous taxable year. 18 (34) "Special enrollment" means a defined period of time of not 19 less than thirty-one days, triggered by a specific qualifying event 20 experienced by the applicant, during which applicants may enroll in 21 the carrier's individual health benefit plan without being subject to 22 health screening or otherwise required to provide evidence of 23 insurability as a condition for enrollment. 24 (35) "Standard health questionnaire" means the standard health 25 questionnaire designated under chapter 48.41 RCW. 26 (36) "Utilization review" means the prospective, concurrent, or 27 retrospective assessment of the necessity and appropriateness of the 28 allocation of health care resources and services of a provider or 29 facility, given or proposed to be given to an enrollee or group of 30 enrollees. 31 (37) "Wellness activity" means an explicit program of an activity 32 consistent with department of health guidelines, such as, smoking 33 cessation, injury and accident prevention, reduction of alcohol 34 misuse, appropriate weight reduction, exercise, automobile and 35 motorcycle safety, blood cholesterol reduction, and nutrition 36 education for the purpose of improving enrollee health status and 37 reducing health service costs. 38 (38)(a) "Protected individual" means: 39 p. 8 SB 5889 (i) An adult covered as a dependent on the enrollee's health 1 benefit plan, including an individual enrolled on the health benefit 2 plan of the individual's registered domestic partner; or 3 (ii) A minor who may obtain health care without the consent of a 4 parent or legal guardian, pursuant to state or federal law. 5 (b) "Protected individual" does not include an individual deemed 6 not competent to provide informed consent for care under RCW 7 11.88.010(1)(e). 8 (39) "Sensitive health care services" means health services 9 related to reproductive health, sexually transmitted diseases, 10 substance use disorder, gender dysphoria, gender affirming care, 11 domestic violence, and mental health. 12 Sec. 3. RCW 48.43.505 and 2000 c 5 s 5 are each amended to read 13 as follows: 14 (1) Health carriers and insurers shall adopt policies and 15 procedures that conform administrative, business, and operational 16 practices to protect an enrollee's and protected individual's right 17 to privacy or right to confidential health care services granted 18 under state or federal laws. 19 (2) A health carrier may not require protected individuals to 20 obtain the policyholder, primary subscriber, or other covered 21 person's authorization to receive health care services or to submit a 22 claim if the protected individual has the right to consent to care. 23 (3) A health carrier must recognize the right of a protected 24 individual or enrollee to exclusively exercise rights granted under 25 this section regarding health information related to care that the 26 enrollee or protected individual has received. 27 (4) A health carrier or insurer must direct all communication 28 regarding a protected individual's receipt of sensitive health care 29 services directly to the protected individual receiving care, or to a 30 physical or email address or telephone number specified by the 31 protected individual. A carrier or insurer may not disclose nonpublic 32 personal health information concerning sensitive health care services 33 provided to a protected individual to any person, including the 34 policyholder, the primary subscriber, or any plan enrollees other 35 than the protected individual receiving care, without the express 36 written consent of the protected individual receiving care. 37 Communications subject to this limitation include the following 38 written, verbal, or electronic communications: 39 p. 9 SB 5889 (a) Bills and attempts to collect payment; 1 (b) A notice of adverse benefits determinations; 2 (c) An explanations of benefits notice; 3 (d) A carrier's request for additional information regarding a 4 claim; 5 (e) A notice of a contested claim; 6 (f) The name and address of a provider, a description of services 7 provided, and other visit information; and 8 (g) Any written, oral, or electronic communication from a carrier 9 that contains protected health information. 10 (5) Protected individuals may request that health carrier 11 communications regarding the receipt of sensitive health care 12 services be sent to another individual, including the policyholder, 13 primary subscriber, or a health care provider, for the purposes of 14 appealing adverse benefits determinations. 15 (6) Health carriers shall: 16 (a) Limit disclosure of any information, including personal 17 health information, about a protected individual who is the subject 18 of the information and shall direct communications containing such 19 information directly to the protected individual, or to a physical or 20 email address or telephone number specified by the protected 21 individual, if he or she requests such a limitation, regardless of 22 whether the information pertains to sensitive services; 23 (b) Permit protected individuals to use the form described in 24 section 4(2) of this act and must also allow enrollees and protected 25 individuals to make the request by telephone, email, or the internet; 26 (c) Ensure that requests for nondisclosure remain in effect until 27 the protected individual revokes or modifies the request in writing; 28 (d) Limit disclosure of information under this subsection 29 consistent with the protected individual's request; and 30 (e) Ensure that requests for nondisclosure are implemented no 31 later than three days after receipt of a request. 32 (7) Health carriers may not require a protected individual to 33 waive any right to limit disclosure under this section as a condition 34 of eligibility for or coverage under a health benefit plan. 35 (8) For the protection of patient confidentiality, any 36 communication from a health carrier relating to the provision of 37 health care services, if the communications disclose protected health 38 information, including medical information or provider name and 39 address, relating to receipt of sensitive services, must be provided 40 p. 10 SB 5889 in the form and format requested by the individual patient receiving 1 care. 2 (9) The commissioner may adopt rules to implement this section 3 after considering relevant standards adopted by national managed care 4 accreditation organizations and the national association of insurance 5 commissioners, and after considering the effect of those standards on 6 the ability of carriers to undertake enrollee care management and 7 disease management programs. 8 NEW SECTION. Sec. 4. A new section is added to chapter 48.43 9 RCW to read as follows: 10 (1) The commissioner shall: 11 (a) Develop a process for the regular collection of information 12 from carriers on requests for confidential communications pursuant to 13 RCW 48.43.505 for the purposes of monitoring compliance, including 14 monitoring: 15 (i) The effectiveness of the process described in RCW 48.43.505 16 in allowing protected individuals to redirect insurance 17 communications, the extent to which protected individuals are using 18 the process, and whether the process is working properly; and 19 (ii) The education and outreach activities conducted by carriers 20 to inform enrollees about their right to confidential communications. 21 (b) Establish a process for ensuring compliance; and 22 (c) Develop rules necessary to implement this act. 23 (2) The commissioner shall work with stakeholders to develop and 24 make available to the public a standardized form that a protected 25 individual may submit to a carrier to make a confidential 26 communications request. At minimum, this form must: 27 (a) Inform a protected individual about the protected 28 individual's right to confidential communications; 29 (b) Allow a protected individual to indicate where to redirect 30 communications, including a specified physical or email address or 31 specified telephone number; and 32 (c) Include a disclaimer that it may take up to three days from 33 the date of receipt for a carrier to process the form. 34 Sec. 5. RCW 48.43.510 and 2012 c 211 s 26 are each amended to 35 read as follows: 36 (1) A carrier that offers a health plan may not offer to sell a 37 health plan to an enrollee or to any group representative, agent, 38 p. 11 SB 5889 employer, or enrollee representative without first offering to 1 provide, and providing upon request, the following information before 2 purchase or selection: 3 (a) A listing of covered benefits, including prescription drug 4 benefits, if any, a copy of the current formulary, if any is used, 5 definitions of terms such as generic versus brand name, and policies 6 regarding coverage of drugs, such as how they become approved or 7 taken off the formulary, and how consumers may be involved in 8 decisions about benefits; 9 (b) A listing of exclusions, reductions, and limitations to 10 covered benefits, and any definition of medical necessity or other 11 coverage criteria upon which they may be based; 12 (c) A statement of the carrier's policies for protecting the 13 confidentiality of health information; 14 (d) A statement of the cost of premiums and any enrollee cost- 15 sharing requirements; 16 (e) A summary explanation of the carrier's review of adverse 17 benefit determinations and grievance processes; 18 (f) A statement regarding the availability of a point-of-service 19 option, if any, and how the option operates; and 20 (g) A convenient means of obtaining lists of participating 21 primary care and specialty care providers, including disclosure of 22 network arrangements that restrict access to providers within any 23 plan network. The offer to provide the information referenced in this 24 subsection (1) must be clearly and prominently displayed on any 25 information provided to any prospective enrollee or to any 26 prospective group representative, agent, employer, or enrollee 27 representative. 28 (2) Upon the request of any person, including a current enrollee, 29 prospective enrollee, or the insurance commissioner, a carrier must 30 provide written information regarding any health care plan it offers, 31 that includes the following written information: 32 (a) Any documents, instruments, or other information referred to 33 in the medical coverage agreement; 34 (b) A full description of the procedures to be followed by an 35 enrollee for consulting a provider other than the primary care 36 provider and whether the enrollee's primary care provider, the 37 carrier's medical director, or another entity must authorize the 38 referral; 39 p. 12 SB 5889 (c) Procedures, if any, that an enrollee must first follow for 1 obtaining prior authorization for health care services; 2 (d) A written description of any reimbursement or payment 3 arrangements, including, but not limited to, capitation provisions, 4 fee-for-service provisions, and health care delivery efficiency 5 provisions, between a carrier and a provider or network; 6 (e) Descriptions and justifications for provider compensation 7 programs, including any incentives or penalties that are intended to 8 encourage providers to withhold services or minimize or avoid 9 referrals to specialists; 10 (f) An annual accounting of all payments made by the carrier 11 which have been counted against any payment limitations, visit 12 limitations, or other overall limitations on a person's coverage 13 under a plan; however, the individual requesting an annual accounting 14 may only receive information about that individual's own care, and 15 may not receive information pertaining to protected individuals who 16 have requested confidential communications pursuant to RCW 48.43.505; 17 (g) A copy of the carrier's review of adverse benefit 18 determinations grievance process for claim or service denial and its 19 grievance process for dissatisfaction with care; and 20 (h) Accreditation status with one or more national managed care 21 accreditation organizations, and whether the carrier tracks its 22 health care effectiveness performance using the health employer data 23 information set (HEDIS), whether it publicly reports its HEDIS data, 24 and how interested persons can access its HEDIS data. 25 (3) Each carrier shall provide to all enrollees and prospective 26 enrollees a list of available disclosure items. 27 (4) Nothing in this section requires a carrier or a health care 28 provider to divulge proprietary information to an enrollee, including 29 the specific contractual terms and conditions between a carrier and a 30 provider. 31 (5) No carrier may advertise or market any health plan to the 32 public as a plan that covers services that help prevent illness or 33 promote the health of enrollees unless it: 34 (a) Provides all clinical preventive health services provided by 35 the basic health plan, authorized by chapter 70.47 RCW; 36 (b) Monitors and reports annually to enrollees on standardized 37 measures of health care and satisfaction of all enrollees in the 38 health plan. The state department of health shall recommend 39 appropriate standardized measures for this purpose, after 40 p. 13 SB 5889 consideration of national standardized measurement systems adopted by 1 national managed care accreditation organizations and state agencies 2 that purchase managed health care services; and 3 (c) Makes available upon request to enrollees its integrated plan 4 to identify and manage the most prevalent diseases within its 5 enrolled population, including cancer, heart disease, and stroke. 6 (6) No carrier may preclude or discourage its providers from 7 informing an enrollee of the care he or she requires, including 8 various treatment options, and whether in the providers' view such 9 care is consistent with the plan's health coverage criteria, or 10 otherwise covered by the enrollee's medical coverage agreement with 11 the carrier. No carrier may prohibit, discourage, or penalize a 12 provider otherwise practicing in compliance with the law from 13 advocating on behalf of an enrollee with a carrier. Nothing in this 14 section shall be construed to authorize a provider to bind a carrier 15 to pay for any service. 16 (7) No carrier may preclude or discourage enrollees or those 17 paying for their coverage from discussing the comparative merits of 18 different carriers with their providers. This prohibition 19 specifically includes prohibiting or limiting providers participating 20 in those discussions even if critical of a carrier. 21 (8) Each carrier must communicate enrollee information required 22 in chapter 5, Laws of 2000 by means that ensure that a substantial 23 portion of the enrollee population can make use of the information. 24 Carriers may implement alternative, efficient methods of 25 communication to ensure enrollees have access to information 26 including, but not limited to, web site alerts, postcard mailings, 27 and electronic communication in lieu of printed materials. 28 (9) The commissioner may adopt rules to implement this section. 29 In developing rules to implement this section, the commissioner shall 30 consider relevant standards adopted by national managed care 31 accreditation organizations and state agencies that purchase managed 32 health care services, as well as opportunities to reduce 33 administrative costs included in health plans. 34 Sec. 6. RCW 48.43.530 and 2012 c 211 s 20 are each amended to 35 read as follows: 36 (1) Each carrier and health plan must have fully operational, 37 comprehensive grievance and appeal processes, and for plans that are 38 not grandfathered, fully operational, comprehensive, and effective 39 p. 14 SB 5889 grievance and review of adverse benefit determination processes that 1 comply with the requirements of this section and any rules adopted by 2 the commissioner to implement this section. For the purposes of this 3 section, the commissioner must consider applicable grievance and 4 appeal or review of adverse benefit determination process standards 5 adopted by national managed care accreditation organizations and 6 state agencies that purchase managed health care services, and for 7 health plans that are not grandfathered health plans as approved by 8 the United States department of health and human services or the 9 United States department of labor. In the case of coverage offered in 10 connection with a group health plan, if either the carrier or the 11 health plan complies with the requirements of this section and RCW 12 48.43.535, then the obligation to comply is satisfied for both the 13 carrier and the plan with respect to the health insurance coverage. 14 (2) Each carrier and health plan must process as a grievance an 15 enrollee's expression of dissatisfaction about customer service or 16 the quality or availability of a health service. Each carrier must 17 implement procedures for registering and responding to oral and 18 written grievances in a timely and thorough manner. 19 (3) Each carrier and health plan must provide written notice to 20 an enrollee or the enrollee's designated representative, and the 21 enrollee's provider, of its decision to deny, modify, reduce, or 22 terminate payment, coverage, authorization, or provision of health 23 care services or benefits, including the admission to or continued 24 stay in a health care facility. Such notice must be sent directly to 25 a protected individual receiving care when accessing sensitive health 26 care services or when a protected individual has requested 27 confidential communication pursuant to RCW 48.43.505(5). 28 (4) An enrollee's written or oral request that a carrier 29 reconsider its decision to deny, modify, reduce, or terminate 30 payment, coverage, authorization, or provision of health care 31 services or benefits, including the admission to, or continued stay 32 in, a health care facility must be processed as follows: 33 (a) When the request is made under a grandfathered health plan, 34 the plan and the carrier must process it as an appeal; 35 (b) When the request is made under a health plan that is not 36 grandfathered, the plan and the carrier must process it as a review 37 of an adverse benefit determination; and 38 (c) Neither a carrier nor a health plan, whether grandfathered or 39 not, may require that an enrollee file a complaint or grievance prior 40 p. 15 SB 5889 to seeking appeal of a decision or review of an adverse benefit 1 determination under this subsection. 2 (5) To process an appeal, each plan that is not grandfathered and 3 each carrier offering that plan must: 4 (a) Provide written notice to the enrollee when the appeal is 5 received; 6 (b) Assist the enrollee with the appeal process; 7 (c) Make its decision regarding the appeal within thirty days of 8 the date the appeal is received. An appeal must be expedited if the 9 enrollee's provider or the carrier's medical director reasonably 10 determines that following the appeal process response timelines could 11 seriously jeopardize the enrollee's life, health, or ability to 12 regain maximum function. The decision regarding an expedited appeal 13 must be made within seventy-two hours of the date the appeal is 14 received; 15 (d) Cooperate with a representative authorized in writing by the 16 enrollee; 17 (e) Consider information submitted by the enrollee; 18 (f) Investigate and resolve the appeal; and 19 (g) Provide written notice of its resolution of the appeal to the 20 enrollee and, with the permission of the enrollee, to the enrollee's 21 providers. The written notice must explain the carrier's and health 22 plan's decision and the supporting coverage or clinical reasons and 23 the enrollee's right to request independent review of the carrier's 24 decision under RCW 48.43.535. 25 (6) Written notice required by subsection (3) of this section 26 must explain: 27 (a) The carrier's and health plan's decision and the supporting 28 coverage or clinical reasons; and 29 (b) The carrier's and grandfathered plan's appeal or for plans 30 that are not grandfathered, adverse benefit determination review 31 process, including information, as appropriate, about how to exercise 32 the enrollee's rights to obtain a second opinion, and how to continue 33 receiving services as provided in this section. 34 (7) When an enrollee requests that the carrier or health plan 35 reconsider its decision to modify, reduce, or terminate an otherwise 36 covered health service that an enrollee is receiving through the 37 health plan and the carrier's or health plan's decision is based upon 38 a finding that the health service, or level of health service, is no 39 longer medically necessary or appropriate, the carrier and health 40 p. 16 SB 5889 plan must continue to provide that health service until the appeal, 1 or for health plans that are not grandfathered, the review of an 2 adverse benefit determination, is resolved. If the resolution of the 3 appeal, review of an adverse benefit determination, or any review 4 sought by the enrollee under RCW 48.43.535 affirms the carrier's or 5 health plan's decision, the enrollee may be responsible for the cost 6 of this continued health service. 7 (8) Each carrier and health plan must provide a clear explanation 8 of the grievance and appeal, or for plans that are not grandfathered, 9 the process for review of an adverse benefit determination process 10 upon request, upon enrollment to new enrollees, and annually to 11 enrollees and subcontractors. 12 (9) Each carrier and health plan must ensure that each grievance, 13 appeal, and for plans that are not grandfathered, grievance and 14 review of adverse benefit determinations, process is accessible to 15 enrollees who are limited English speakers, who have literacy 16 problems, or who have physical or mental disabilities that impede 17 their ability to file a grievance, appeal or review of an adverse 18 benefit determination. 19 (10)(a) Each plan that is not grandfathered and the carrier that 20 offers it must: Track each appeal until final resolution; maintain, 21 and make accessible to the commissioner for a period of three years, 22 a log of all appeals; and identify and evaluate trends in appeals. 23 (b) Each grandfathered plan and the carrier that offers it must: 24 Track each review of an adverse benefit determination until final 25 resolution; maintain and make accessible to the commissioner, for a 26 period of six years, a log of all such determinations; and identify 27 and evaluate trends in requests for and resolution of review of 28 adverse benefit determinations. 29 (11) In complying with this section, plans that are not 30 grandfathered and the carriers offering them must treat a rescission 31 of coverage, whether or not the rescission has an adverse effect on 32 any particular benefit at that time, and any decision to deny 33 coverage in an initial eligibility determination as an adverse 34 benefit determination. 35 NEW SECTION. Sec. 7. If any provision of this act or its 36 application to any person or circumstance is held invalid, the 37 remainder of the act or the application of the provision to other 38 persons or circumstances is not affected. 39 p. 17 SB 5889 NEW SECTION. Sec. 8. This act takes effect January 1, 2020. 1 --- END --- p. 18 SB 5889

CERTIFICATION OF ENROLLMENT SUBSTITUTE SENATE BILL 5889 Chapter 56, Laws of 2019 66th Legislature 2019 Regular Session HEALTH INSURANCE COMMUNICATIONS--CONFIDENTIALITY EFFECTIVE DATE: January 1, 2020 Passed by the Senate March 6, 2019 Yeas 27 Nays 19 CYRUS HABIB President of the Senate Passed by the House April 4, 2019 Yeas 55 Nays 39 FRANK CHOPP Speaker of the House of Representatives CERTIFICATE I, Brad Hendrickson, Secretary of the Senate of the State of Washington, do hereby certify that the attached is SUBSTITUTE SENATE BILL 5889 as passed by Senate and the House of Representatives on the dates hereon set forth. BRAD HENDRICKSON Secretary Approved April 17, 2019 1:24 PM FILED April 18, 2019 JAY INSLEE Governor of the State of Washington Secretary of State State of Washington AN ACT Relating to insurance communications confidentiality; 1 amending RCW 48.43.005, 48.43.505, 48.43.510, and 48.43.530; adding a 2 new section to chapter 48.43 RCW; creating a new section; and 3 providing an effective date. 4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON: 5 NEW SECTION. Sec. 1. The legislature finds and declares: 6 (1) All people deserve the right to choose the health services 7 that are right for them, and the right to confidential access to 8 those health services. 9 (2) When people are assured of the ability to confidentially 10 access health care services, they are more likely to seek health 11 services, disclose health risk behaviors to a clinician, and return 12 for follow-up care. 13 (3) When denied confidential access to needed care, people may 14 delay or forgo care, leading to higher rates of unprotected sex, 15 unintended pregnancy, untreated sexually transmitted infections, and 16 mental health issues, or they may turn to public health safety net 17 funds or free clinics to receive confidential care—important 18 resources that should be reserved for people who do not have 19 insurance coverage. 20 SUBSTITUTE SENATE BILL 5889 Passed Legislature - 2019 Regular Session State of Washington 66th Legislature 2019 Regular Session By Senate Health & Long Term Care (originally sponsored by Senator Dhingra) READ FIRST TIME 02/22/19. p. 1 SSB 5889.SL Sec. 2. RCW 48.43.005 and 2016 c 65 s 2 are each amended to read 1 as follows: 2 Unless otherwise specifically provided, the definitions in this 3 section apply throughout this chapter. 4 (1) "Adjusted community rate" means the rating method used to 5 establish the premium for health plans adjusted to reflect 6 actuarially demonstrated differences in utilization or cost 7 attributable to geographic region, age, family size, and use of 8 wellness activities. 9 (2) "Adverse benefit determination" means a denial, reduction, or 10 termination of, or a failure to provide or make payment, in whole or 11 in part, for a benefit, including a denial, reduction, termination, 12 or failure to provide or make payment that is based on a 13 determination of an enrollee's or applicant's eligibility to 14 participate in a plan, and including, with respect to group health 15 plans, a denial, reduction, or termination of, or a failure to 16 provide or make payment, in whole or in part, for a benefit resulting 17 from the application of any utilization review, as well as a failure 18 to cover an item or service for which benefits are otherwise provided 19 because it is determined to be experimental or investigational or not 20 medically necessary or appropriate. 21 (3) "Applicant" means a person who applies for enrollment in an 22 individual health plan as the subscriber or an enrollee, or the 23 dependent or spouse of a subscriber or enrollee. 24 (4) "Basic health plan" means the plan described under chapter 25 70.47 RCW, as revised from time to time. 26 (5) "Basic health plan model plan" means a health plan as 27 required in RCW 70.47.060(2)(e). 28 (6) "Basic health plan services" means that schedule of covered 29 health services, including the description of how those benefits are 30 to be administered, that are required to be delivered to an enrollee 31 under the basic health plan, as revised from time to time. 32 (7) "Board" means the governing board of the Washington health 33 benefit exchange established in chapter 43.71 RCW. 34 (8)(a) For grandfathered health benefit plans issued before 35 January 1, 2014, and renewed thereafter, "catastrophic health plan" 36 means: 37 (i) In the case of a contract, agreement, or policy covering a 38 single enrollee, a health benefit plan requiring a calendar year 39 deductible of, at a minimum, one thousand seven hundred fifty dollars 40 p. 2 SSB 5889.SL and an annual out-of-pocket expense required to be paid under the 1 plan (other than for premiums) for covered benefits of at least three 2 thousand five hundred dollars, both amounts to be adjusted annually 3 by the insurance commissioner; and 4 (ii) In the case of a contract, agreement, or policy covering 5 more than one enrollee, a health benefit plan requiring a calendar 6 year deductible of, at a minimum, three thousand five hundred dollars 7 and an annual out-of-pocket expense required to be paid under the 8 plan (other than for premiums) for covered benefits of at least six 9 thousand dollars, both amounts to be adjusted annually by the 10 insurance commissioner. 11 (b) In July 2008, and in each July thereafter, the insurance 12 commissioner shall adjust the minimum deductible and out-of-pocket 13 expense required for a plan to qualify as a catastrophic plan to 14 reflect the percentage change in the consumer price index for medical 15 care for a preceding twelve months, as determined by the United 16 States department of labor. For a plan year beginning in 2014, the 17 out-of-pocket limits must be adjusted as specified in section 18 1302(c)(1) of P.L. 111-148 of 2010, as amended. The adjusted amount 19 shall apply on the following January 1st. 20 (c) For health benefit plans issued on or after January 1, 2014, 21 "catastrophic health plan" means: 22 (i) A health benefit plan that meets the definition of 23 catastrophic plan set forth in section 1302(e) of P.L. 111-148 of 24 2010, as amended; or 25 (ii) A health benefit plan offered outside the exchange 26 marketplace that requires a calendar year deductible or out-of-pocket 27 expenses under the plan, other than for premiums, for covered 28 benefits, that meets or exceeds the commissioner's annual adjustment 29 under (b) of this subsection. 30 (9) "Certification" means a determination by a review 31 organization that an admission, extension of stay, or other health 32 care service or procedure has been reviewed and, based on the 33 information provided, meets the clinical requirements for medical 34 necessity, appropriateness, level of care, or effectiveness under the 35 auspices of the applicable health benefit plan. 36 (10) "Concurrent review" means utilization review conducted 37 during a patient's hospital stay or course of treatment. 38 (11) "Covered person" or "enrollee" means a person covered by a 39 health plan including an enrollee, subscriber, policyholder, 40 p. 3 SSB 5889.SL beneficiary of a group plan, or individual covered by any other 1 health plan. 2 (12) "Dependent" means, at a minimum, the enrollee's legal spouse 3 and dependent children who qualify for coverage under the enrollee's 4 health benefit plan. 5 (13) "Emergency medical condition" means a medical condition 6 manifesting itself by acute symptoms of sufficient severity, 7 including severe pain, such that a prudent layperson, who possesses 8 an average knowledge of health and medicine, could reasonably expect 9 the absence of immediate medical attention to result in a condition 10 (a) placing the health of the individual, or with respect to a 11 pregnant woman, the health of the woman or her unborn child, in 12 serious jeopardy, (b) serious impairment to bodily functions, or (c) 13 serious dysfunction of any bodily organ or part. 14 (14) "Emergency services" means a medical screening examination, 15 as required under section 1867 of the social security act (42 U.S.C. 16 1395dd), that is within the capability of the emergency department of 17 a hospital, including ancillary services routinely available to the 18 emergency department to evaluate that emergency medical condition, 19 and further medical examination and treatment, to the extent they are 20 within the capabilities of the staff and facilities available at the 21 hospital, as are required under section 1867 of the social security 22 act (42 U.S.C. 1395dd) to stabilize the patient. Stabilize, with 23 respect to an emergency medical condition, has the meaning given in 24 section 1867(e)(3) of the social security act (42 U.S.C. 25 1395dd(e)(3)). 26 (15) "Employee" has the same meaning given to the term, as of 27 January 1, 2008, under section 3(6) of the federal employee 28 retirement income security act of 1974. 29 (16) "Enrollee point-of-service cost-sharing" means amounts paid 30 to health carriers directly providing services, health care 31 providers, or health care facilities by enrollees and may include 32 copayments, coinsurance, or deductibles. 33 (17) "Exchange" means the Washington health benefit exchange 34 established under chapter 43.71 RCW. 35 (18) "Final external review decision" means a determination by an 36 independent review organization at the conclusion of an external 37 review. 38 (19) "Final internal adverse benefit determination" means an 39 adverse benefit determination that has been upheld by a health plan 40 p. 4 SSB 5889.SL or carrier at the completion of the internal appeals process, or an 1 adverse benefit determination with respect to which the internal 2 appeals process has been exhausted under the exhaustion rules 3 described in RCW 48.43.530 and 48.43.535. 4 (20) "Grandfathered health plan" means a group health plan or an 5 individual health plan that under section 1251 of the patient 6 protection and affordable care act, P.L. 111-148 (2010) and as 7 amended by the health care and education reconciliation act, P.L. 8 111-152 (2010) is not subject to subtitles A or C of the act as 9 amended. 10 (21) "Grievance" means a written complaint submitted by or on 11 behalf of a covered person regarding service delivery issues other 12 than denial of payment for medical services or nonprovision of 13 medical services, including dissatisfaction with medical care, 14 waiting time for medical services, provider or staff attitude or 15 demeanor, or dissatisfaction with service provided by the health 16 carrier. 17 (22) "Health care facility" or "facility" means hospices licensed 18 under chapter 70.127 RCW, hospitals licensed under chapter 70.41 RCW, 19 rural health care facilities as defined in RCW 70.175.020, 20 psychiatric hospitals licensed under chapter 71.12 RCW, nursing homes 21 licensed under chapter 18.51 RCW, community mental health centers 22 licensed under chapter 71.05 or 71.24 RCW, kidney disease treatment 23 centers licensed under chapter 70.41 RCW, ambulatory diagnostic, 24 treatment, or surgical facilities licensed under chapter 70.41 RCW, 25 drug and alcohol treatment facilities licensed under chapter 70.96A 26 RCW, and home health agencies licensed under chapter 70.127 RCW, and 27 includes such facilities if owned and operated by a political 28 subdivision or instrumentality of the state and such other facilities 29 as required by federal law and implementing regulations. 30 (23) "Health care provider" or "provider" means: 31 (a) A person regulated under Title 18 or chapter 70.127 RCW, to 32 practice health or health-related services or otherwise practicing 33 health care services in this state consistent with state law; or 34 (b) An employee or agent of a person described in (a) of this 35 subsection, acting in the course and scope of his or her employment. 36 (24) "Health care service" means that service offered or provided 37 by health care facilities and health care providers relating to the 38 prevention, cure, or treatment of illness, injury, or disease. 39 p. 5 SSB 5889.SL (25) "Health carrier" or "carrier" means a disability insurer 1 regulated under chapter 48.20 or 48.21 RCW, a health care service 2 contractor as defined in RCW 48.44.010, or a health maintenance 3 organization as defined in RCW 48.46.020, and includes "issuers" as 4 that term is used in the patient protection and affordable care act 5 (P.L. 111-148). 6 (26) "Health plan" or "health benefit plan" means any policy, 7 contract, or agreement offered by a health carrier to provide, 8 arrange, reimburse, or pay for health care services except the 9 following: 10 (a) Long-term care insurance governed by chapter 48.84 or 48.83 11 RCW; 12 (b) Medicare supplemental health insurance governed by chapter 13 48.66 RCW; 14 (c) Coverage supplemental to the coverage provided under chapter 15 55, Title 10, United States Code; 16 (d) Limited health care services offered by limited health care 17 service contractors in accordance with RCW 48.44.035; 18 (e) Disability income; 19 (f) Coverage incidental to a property/casualty liability 20 insurance policy such as automobile personal injury protection 21 coverage and homeowner guest medical; 22 (g) Workers' compensation coverage; 23 (h) Accident only coverage; 24 (i) Specified disease or illness-triggered fixed payment 25 insurance, hospital confinement fixed payment insurance, or other 26 fixed payment insurance offered as an independent, noncoordinated 27 benefit; 28 (j) Employer-sponsored self-funded health plans; 29 (k) Dental only and vision only coverage; 30 (l) Plans deemed by the insurance commissioner to have a short- 31 term limited purpose or duration, or to be a student-only plan that 32 is guaranteed renewable while the covered person is enrolled as a 33 regular full-time undergraduate or graduate student at an accredited 34 higher education institution, after a written request for such 35 classification by the carrier and subsequent written approval by the 36 insurance commissioner; and 37 (m) Civilian health and medical program for the veterans affairs 38 administration (CHAMPVA). 39 p. 6 SSB 5889.SL (27) "Individual market" means the market for health insurance 1 coverage offered to individuals other than in connection with a group 2 health plan. 3 (28) "Material modification" means a change in the actuarial 4 value of the health plan as modified of more than five percent but 5 less than fifteen percent. 6 (29) "Open enrollment" means a period of time as defined in rule 7 to be held at the same time each year, during which applicants may 8 enroll in a carrier's individual health benefit plan without being 9 subject to health screening or otherwise required to provide evidence 10 of insurability as a condition for enrollment. 11 (30) "Preexisting condition" means any medical condition, 12 illness, or injury that existed any time prior to the effective date 13 of coverage. 14 (31) "Premium" means all sums charged, received, or deposited by 15 a health carrier as consideration for a health plan or the 16 continuance of a health plan. Any assessment or any "membership," 17 "policy," "contract," "service," or similar fee or charge made by a 18 health carrier in consideration for a health plan is deemed part of 19 the premium. "Premium" shall not include amounts paid as enrollee 20 point-of-service cost-sharing. 21 (32) "Review organization" means a disability insurer regulated 22 under chapter 48.20 or 48.21 RCW, health care service contractor as 23 defined in RCW 48.44.010, or health maintenance organization as 24 defined in RCW 48.46.020, and entities affiliated with, under 25 contract with, or acting on behalf of a health carrier to perform a 26 utilization review. 27 (33) "Small employer" or "small group" means any person, firm, 28 corporation, partnership, association, political subdivision, sole 29 proprietor, or self-employed individual that is actively engaged in 30 business that employed an average of at least one but no more than 31 fifty employees, during the previous calendar year and employed at 32 least one employee on the first day of the plan year, is not formed 33 primarily for purposes of buying health insurance, and in which a 34 bona fide employer-employee relationship exists. In determining the 35 number of employees, companies that are affiliated companies, or that 36 are eligible to file a combined tax return for purposes of taxation 37 by this state, shall be considered an employer. Subsequent to the 38 issuance of a health plan to a small employer and for the purpose of 39 determining eligibility, the size of a small employer shall be 40 p. 7 SSB 5889.SL determined annually. Except as otherwise specifically provided, a 1 small employer shall continue to be considered a small employer until 2 the plan anniversary following the date the small employer no longer 3 meets the requirements of this definition. A self-employed individual 4 or sole proprietor who is covered as a group of one must also: (a) 5 Have been employed by the same small employer or small group for at 6 least twelve months prior to application for small group coverage, 7 and (b) verify that he or she derived at least seventy-five percent 8 of his or her income from a trade or business through which the 9 individual or sole proprietor has attempted to earn taxable income 10 and for which he or she has filed the appropriate internal revenue 11 service form 1040, schedule C or F, for the previous taxable year, 12 except a self-employed individual or sole proprietor in an 13 agricultural trade or business, must have derived at least fifty-one 14 percent of his or her income from the trade or business through which 15 the individual or sole proprietor has attempted to earn taxable 16 income and for which he or she has filed the appropriate internal 17 revenue service form 1040, for the previous taxable year. 18 (34) "Special enrollment" means a defined period of time of not 19 less than thirty-one days, triggered by a specific qualifying event 20 experienced by the applicant, during which applicants may enroll in 21 the carrier's individual health benefit plan without being subject to 22 health screening or otherwise required to provide evidence of 23 insurability as a condition for enrollment. 24 (35) "Standard health questionnaire" means the standard health 25 questionnaire designated under chapter 48.41 RCW. 26 (36) "Utilization review" means the prospective, concurrent, or 27 retrospective assessment of the necessity and appropriateness of the 28 allocation of health care resources and services of a provider or 29 facility, given or proposed to be given to an enrollee or group of 30 enrollees. 31 (37) "Wellness activity" means an explicit program of an activity 32 consistent with department of health guidelines, such as, smoking 33 cessation, injury and accident prevention, reduction of alcohol 34 misuse, appropriate weight reduction, exercise, automobile and 35 motorcycle safety, blood cholesterol reduction, and nutrition 36 education for the purpose of improving enrollee health status and 37 reducing health service costs. 38 (38)(a) "Protected individual" means: 39 p. 8 SSB 5889.SL (i) An adult covered as a dependent on the enrollee's health 1 benefit plan, including an individual enrolled on the health benefit 2 plan of the individual's registered domestic partner; or 3 (ii) A minor who may obtain health care without the consent of a 4 parent or legal guardian, pursuant to state or federal law. 5 (b) "Protected individual" does not include an individual deemed 6 not competent to provide informed consent for care under RCW 7 11.88.010(1)(e). 8 (39) "Sensitive health care services" means health services 9 related to reproductive health, sexually transmitted diseases, 10 substance use disorder, gender dysphoria, gender affirming care, 11 domestic violence, and mental health. 12 Sec. 3. RCW 48.43.505 and 2000 c 5 s 5 are each amended to read 13 as follows: 14 (1) Health carriers and insurers shall adopt policies and 15 procedures that conform administrative, business, and operational 16 practices to protect an enrollee's and protected individual's right 17 to privacy or right to confidential health care services granted 18 under state or federal laws. 19 (2) A health carrier may not require protected individuals to 20 obtain the policyholder, primary subscriber, or other covered 21 person's authorization to receive health care services or to submit a 22 claim if the protected individual has the right to consent to care. 23 (3) A health carrier must recognize the right of a protected 24 individual or enrollee to exclusively exercise rights granted under 25 this section regarding health information related to care that the 26 enrollee or protected individual has received. 27 (4) A health carrier or insurer must direct all communication 28 regarding a protected individual's receipt of sensitive health care 29 services directly to the protected individual receiving care, or to a 30 physical or email address or telephone number specified by the 31 protected individual. A carrier or insurer may not disclose nonpublic 32 personal health information concerning sensitive health care services 33 provided to a protected individual to any person, including the 34 policyholder, the primary subscriber, or any plan enrollees other 35 than the protected individual receiving care, without the express 36 written consent or verbal authorization on a recorded telephone line 37 of the protected individual receiving care. Communications subject to 38 p. 9 SSB 5889.SL this limitation include the following written, verbal, or electronic 1 communications: 2 (a) Bills and attempts to collect payment; 3 (b) A notice of adverse benefits determinations; 4 (c) An explanations of benefits notice; 5 (d) A carrier's request for additional information regarding a 6 claim; 7 (e) A notice of a contested claim; 8 (f) The name and address of a provider, a description of services 9 provided, and other visit information; and 10 (g) Any written, oral, or electronic communication from a carrier 11 that contains protected health information. 12 (5) Protected individuals may request that health carrier 13 communications regarding the receipt of sensitive health care 14 services be sent to another individual, including the policyholder, 15 primary subscriber, or a health care provider, for the purposes of 16 appealing adverse benefits determinations. 17 (6) Health carriers shall: 18 (a) Limit disclosure of any information, including personal 19 health information, about a protected individual who is the subject 20 of the information and shall direct communications containing such 21 information directly to the protected individual, or to a physical or 22 email address or telephone number specified by the protected 23 individual, if he or she requests such a limitation, regardless of 24 whether the information pertains to sensitive services; 25 (b) Permit protected individuals to use the form described in 26 section 4(2) of this act and must also allow enrollees and protected 27 individuals to make the request by telephone, email, or the internet; 28 (c) Ensure that requests for nondisclosure remain in effect until 29 the protected individual revokes or modifies the request in writing; 30 (d) Limit disclosure of information under this subsection 31 consistent with the protected individual's request; and 32 (e) Ensure that requests for nondisclosure are implemented no 33 later than three business days after receipt of a request. 34 (7) Health carriers may not require a protected individual to 35 waive any right to limit disclosure under this section as a condition 36 of eligibility for or coverage under a health benefit plan. 37 (8) For the protection of patient confidentiality, any 38 communication from a health carrier relating to the provision of 39 health care services, if the communications disclose protected health 40 p. 10 SSB 5889.SL information, including medical information or provider name and 1 address, relating to receipt of sensitive services, must be provided 2 in the form and format requested by the individual patient receiving 3 care. 4 (9) The commissioner may adopt rules to implement this section 5 after considering relevant standards adopted by national managed care 6 accreditation organizations and the national association of insurance 7 commissioners, and after considering the effect of those standards on 8 the ability of carriers to undertake enrollee care management and 9 disease management programs. 10 NEW SECTION. Sec. 4. A new section is added to chapter 48.43 11 RCW to read as follows: 12 (1) The commissioner shall: 13 (a) Develop a process for the regular collection of information 14 from carriers on requests for confidential communications pursuant to 15 RCW 48.43.505 for the purposes of monitoring compliance, including 16 monitoring: 17 (i) The effectiveness of the process described in RCW 48.43.505 18 in allowing protected individuals to redirect insurance 19 communications, the extent to which protected individuals are using 20 the process, and whether the process is working properly; and 21 (ii) The education and outreach activities conducted by carriers 22 to inform enrollees about their right to confidential communications. 23 (b) Establish a process for ensuring compliance; and 24 (c) Develop rules necessary to implement this act. 25 (2) The commissioner shall work with stakeholders to develop and 26 make available to the public a standardized form that a protected 27 individual may submit to a carrier to make a confidential 28 communications request. At minimum, this form must: 29 (a) Inform a protected individual about the protected 30 individual's right to confidential communications; 31 (b) Allow a protected individual to indicate where to redirect 32 communications, including a specified physical or email address or 33 specified telephone number; and 34 (c) Include a disclaimer that it may take up to three business 35 days from the date of receipt for a carrier to process the form. 36 Sec. 5. RCW 48.43.510 and 2012 c 211 s 26 are each amended to 37 read as follows: 38 p. 11 SSB 5889.SL (1) A carrier that offers a health plan may not offer to sell a 1 health plan to an enrollee or to any group representative, agent, 2 employer, or enrollee representative without first offering to 3 provide, and providing upon request, the following information before 4 purchase or selection: 5 (a) A listing of covered benefits, including prescription drug 6 benefits, if any, a copy of the current formulary, if any is used, 7 definitions of terms such as generic versus brand name, and policies 8 regarding coverage of drugs, such as how they become approved or 9 taken off the formulary, and how consumers may be involved in 10 decisions about benefits; 11 (b) A listing of exclusions, reductions, and limitations to 12 covered benefits, and any definition of medical necessity or other 13 coverage criteria upon which they may be based; 14 (c) A statement of the carrier's policies for protecting the 15 confidentiality of health information; 16 (d) A statement of the cost of premiums and any enrollee cost- 17 sharing requirements; 18 (e) A summary explanation of the carrier's review of adverse 19 benefit determinations and grievance processes; 20 (f) A statement regarding the availability of a point-of-service 21 option, if any, and how the option operates; and 22 (g) A convenient means of obtaining lists of participating 23 primary care and specialty care providers, including disclosure of 24 network arrangements that restrict access to providers within any 25 plan network. The offer to provide the information referenced in this 26 subsection (1) must be clearly and prominently displayed on any 27 information provided to any prospective enrollee or to any 28 prospective group representative, agent, employer, or enrollee 29 representative. 30 (2) Upon the request of any person, including a current enrollee, 31 prospective enrollee, or the insurance commissioner, a carrier must 32 provide written information regarding any health care plan it offers, 33 that includes the following written information: 34 (a) Any documents, instruments, or other information referred to 35 in the medical coverage agreement; 36 (b) A full description of the procedures to be followed by an 37 enrollee for consulting a provider other than the primary care 38 provider and whether the enrollee's primary care provider, the 39 p. 12 SSB 5889.SL carrier's medical director, or another entity must authorize the 1 referral; 2 (c) Procedures, if any, that an enrollee must first follow for 3 obtaining prior authorization for health care services; 4 (d) A written description of any reimbursement or payment 5 arrangements, including, but not limited to, capitation provisions, 6 fee-for-service provisions, and health care delivery efficiency 7 provisions, between a carrier and a provider or network; 8 (e) Descriptions and justifications for provider compensation 9 programs, including any incentives or penalties that are intended to 10 encourage providers to withhold services or minimize or avoid 11 referrals to specialists; 12 (f) An annual accounting of all payments made by the carrier 13 which have been counted against any payment limitations, visit 14 limitations, or other overall limitations on a person's coverage 15 under a plan; however, the individual requesting an annual accounting 16 may only receive information about that individual's own care, and 17 may not receive information pertaining to protected individuals who 18 have requested confidential communications pursuant to RCW 48.43.505; 19 (g) A copy of the carrier's review of adverse benefit 20 determinations grievance process for claim or service denial and its 21 grievance process for dissatisfaction with care; and 22 (h) Accreditation status with one or more national managed care 23 accreditation organizations, and whether the carrier tracks its 24 health care effectiveness performance using the health employer data 25 information set (HEDIS), whether it publicly reports its HEDIS data, 26 and how interested persons can access its HEDIS data. 27 (3) Each carrier shall provide to all enrollees and prospective 28 enrollees a list of available disclosure items. 29 (4) Nothing in this section requires a carrier or a health care 30 provider to divulge proprietary information to an enrollee, including 31 the specific contractual terms and conditions between a carrier and a 32 provider. 33 (5) No carrier may advertise or market any health plan to the 34 public as a plan that covers services that help prevent illness or 35 promote the health of enrollees unless it: 36 (a) Provides all clinical preventive health services provided by 37 the basic health plan, authorized by chapter 70.47 RCW; 38 (b) Monitors and reports annually to enrollees on standardized 39 measures of health care and satisfaction of all enrollees in the 40 p. 13 SSB 5889.SL health plan. The state department of health shall recommend 1 appropriate standardized measures for this purpose, after 2 consideration of national standardized measurement systems adopted by 3 national managed care accreditation organizations and state agencies 4 that purchase managed health care services; and 5 (c) Makes available upon request to enrollees its integrated plan 6 to identify and manage the most prevalent diseases within its 7 enrolled population, including cancer, heart disease, and stroke. 8 (6) No carrier may preclude or discourage its providers from 9 informing an enrollee of the care he or she requires, including 10 various treatment options, and whether in the providers' view such 11 care is consistent with the plan's health coverage criteria, or 12 otherwise covered by the enrollee's medical coverage agreement with 13 the carrier. No carrier may prohibit, discourage, or penalize a 14 provider otherwise practicing in compliance with the law from 15 advocating on behalf of an enrollee with a carrier. Nothing in this 16 section shall be construed to authorize a provider to bind a carrier 17 to pay for any service. 18 (7) No carrier may preclude or discourage enrollees or those 19 paying for their coverage from discussing the comparative merits of 20 different carriers with their providers. This prohibition 21 specifically includes prohibiting or limiting providers participating 22 in those discussions even if critical of a carrier. 23 (8) Each carrier must communicate enrollee information required 24 in chapter 5, Laws of 2000 by means that ensure that a substantial 25 portion of the enrollee population can make use of the information. 26 Carriers may implement alternative, efficient methods of 27 communication to ensure enrollees have access to information 28 including, but not limited to, web site alerts, postcard mailings, 29 and electronic communication in lieu of printed materials. 30 (9) The commissioner may adopt rules to implement this section. 31 In developing rules to implement this section, the commissioner shall 32 consider relevant standards adopted by national managed care 33 accreditation organizations and state agencies that purchase managed 34 health care services, as well as opportunities to reduce 35 administrative costs included in health plans. 36 Sec. 6. RCW 48.43.530 and 2012 c 211 s 20 are each amended to 37 read as follows: 38 p. 14 SSB 5889.SL (1) Each carrier and health plan must have fully operational, 1 comprehensive grievance and appeal processes, and for plans that are 2 not grandfathered, fully operational, comprehensive, and effective 3 grievance and review of adverse benefit determination processes that 4 comply with the requirements of this section and any rules adopted by 5 the commissioner to implement this section. For the purposes of this 6 section, the commissioner must consider applicable grievance and 7 appeal or review of adverse benefit determination process standards 8 adopted by national managed care accreditation organizations and 9 state agencies that purchase managed health care services, and for 10 health plans that are not grandfathered health plans as approved by 11 the United States department of health and human services or the 12 United States department of labor. In the case of coverage offered in 13 connection with a group health plan, if either the carrier or the 14 health plan complies with the requirements of this section and RCW 15 48.43.535, then the obligation to comply is satisfied for both the 16 carrier and the plan with respect to the health insurance coverage. 17 (2) Each carrier and health plan must process as a grievance an 18 enrollee's expression of dissatisfaction about customer service or 19 the quality or availability of a health service. Each carrier must 20 implement procedures for registering and responding to oral and 21 written grievances in a timely and thorough manner. 22 (3) Each carrier and health plan must provide written notice to 23 an enrollee or the enrollee's designated representative, and the 24 enrollee's provider, of its decision to deny, modify, reduce, or 25 terminate payment, coverage, authorization, or provision of health 26 care services or benefits, including the admission to or continued 27 stay in a health care facility. Such notice must be sent directly to 28 a protected individual receiving care when accessing sensitive health 29 care services or when a protected individual has requested 30 confidential communication pursuant to RCW 48.43.505(5). 31 (4) An enrollee's written or oral request that a carrier 32 reconsider its decision to deny, modify, reduce, or terminate 33 payment, coverage, authorization, or provision of health care 34 services or benefits, including the admission to, or continued stay 35 in, a health care facility must be processed as follows: 36 (a) When the request is made under a grandfathered health plan, 37 the plan and the carrier must process it as an appeal; 38 p. 15 SSB 5889.SL (b) When the request is made under a health plan that is not 1 grandfathered, the plan and the carrier must process it as a review 2 of an adverse benefit determination; and 3 (c) Neither a carrier nor a health plan, whether grandfathered or 4 not, may require that an enrollee file a complaint or grievance prior 5 to seeking appeal of a decision or review of an adverse benefit 6 determination under this subsection. 7 (5) To process an appeal, each plan that is not grandfathered and 8 each carrier offering that plan must: 9 (a) Provide written notice to the enrollee when the appeal is 10 received; 11 (b) Assist the enrollee with the appeal process; 12 (c) Make its decision regarding the appeal within thirty days of 13 the date the appeal is received. An appeal must be expedited if the 14 enrollee's provider or the carrier's medical director reasonably 15 determines that following the appeal process response timelines could 16 seriously jeopardize the enrollee's life, health, or ability to 17 regain maximum function. The decision regarding an expedited appeal 18 must be made within seventy-two hours of the date the appeal is 19 received; 20 (d) Cooperate with a representative authorized in writing by the 21 enrollee; 22 (e) Consider information submitted by the enrollee; 23 (f) Investigate and resolve the appeal; and 24 (g) Provide written notice of its resolution of the appeal to the 25 enrollee and, with the permission of the enrollee, to the enrollee's 26 providers. The written notice must explain the carrier's and health 27 plan's decision and the supporting coverage or clinical reasons and 28 the enrollee's right to request independent review of the carrier's 29 decision under RCW 48.43.535. 30 (6) Written notice required by subsection (3) of this section 31 must explain: 32 (a) The carrier's and health plan's decision and the supporting 33 coverage or clinical reasons; and 34 (b) The carrier's and grandfathered plan's appeal or for plans 35 that are not grandfathered, adverse benefit determination review 36 process, including information, as appropriate, about how to exercise 37 the enrollee's rights to obtain a second opinion, and how to continue 38 receiving services as provided in this section. 39 p. 16 SSB 5889.SL (7) When an enrollee requests that the carrier or health plan 1 reconsider its decision to modify, reduce, or terminate an otherwise 2 covered health service that an enrollee is receiving through the 3 health plan and the carrier's or health plan's decision is based upon 4 a finding that the health service, or level of health service, is no 5 longer medically necessary or appropriate, the carrier and health 6 plan must continue to provide that health service until the appeal, 7 or for health plans that are not grandfathered, the review of an 8 adverse benefit determination, is resolved. If the resolution of the 9 appeal, review of an adverse benefit determination, or any review 10 sought by the enrollee under RCW 48.43.535 affirms the carrier's or 11 health plan's decision, the enrollee may be responsible for the cost 12 of this continued health service. 13 (8) Each carrier and health plan must provide a clear explanation 14 of the grievance and appeal, or for plans that are not grandfathered, 15 the process for review of an adverse benefit determination process 16 upon request, upon enrollment to new enrollees, and annually to 17 enrollees and subcontractors. 18 (9) Each carrier and health plan must ensure that each grievance, 19 appeal, and for plans that are not grandfathered, grievance and 20 review of adverse benefit determinations, process is accessible to 21 enrollees who are limited English speakers, who have literacy 22 problems, or who have physical or mental disabilities that impede 23 their ability to file a grievance, appeal or review of an adverse 24 benefit determination. 25 (10)(a) Each plan that is not grandfathered and the carrier that 26 offers it must: Track each appeal until final resolution; maintain, 27 and make accessible to the commissioner for a period of three years, 28 a log of all appeals; and identify and evaluate trends in appeals. 29 (b) Each grandfathered plan and the carrier that offers it must: 30 Track each review of an adverse benefit determination until final 31 resolution; maintain and make accessible to the commissioner, for a 32 period of six years, a log of all such determinations; and identify 33 and evaluate trends in requests for and resolution of review of 34 adverse benefit determinations. 35 (11) In complying with this section, plans that are not 36 grandfathered and the carriers offering them must treat a rescission 37 of coverage, whether or not the rescission has an adverse effect on 38 any particular benefit at that time, and any decision to deny 39 p. 17 SSB 5889.SL coverage in an initial eligibility determination as an adverse 1 benefit determination. 2 NEW SECTION. Sec. 7. If any provision of this act or its 3 application to any person or circumstance is held invalid, the 4 remainder of the act or the application of the provision to other 5 persons or circumstances is not affected. 6 NEW SECTION. Sec. 8. This act takes effect January 1, 2020. 7 Passed by the Senate March 6, 2019. Passed by the House April 4, 2019. Approved by the Governor April 17, 2019. Filed in Office of Secretary of State April 18, 2019. --- END --- p. 18 SSB 5889.SL