H. B. 4564

(By Delegates Frich, Ellington, Householder,

Howell, Border, Walters, Cowles, Sobonya,

Shott, Faircloth and Westfall)

[Introduced February 17, 2014; referred to the

Committee on Health and Human Resources then the Judiciary.]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §33-16I-1, §33-16I-2, §33-16I-3, §33-16I-4 and §33-16I-5, all relating to the protection and privacy of persons seeking health insurance assisted by navigators and nonnavigator assisters under the federal Affordable Care Act; definitions; requirements and qualifications for navigators and nonnavigator assisters; certification by the Insurance Commissioner of navigators and nonnavigator assisters meeting the requirements and qualifications; establishing a criminal felony offense for certain acts of misuse or disclosure of personally identifiable information by navigators and nonnavigator assisters; criminal penalties upon conviction; establishing misdemeanor criminal offenses for violation of the article and providing criminal penalties upon conviction thereof; providing for injunctive relief to enforce the provisions of the article; and providing for the institution of criminal proceedings.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §33-16I-1, §33-16I-2, §33-16I-3, §33-16I-4 and §33-16I-5, all to read as follows:

ARTICLE 16I. PROTECTION OF PRIVACY AND SECURITY OF PERSONS SEEKING HEALTH INSURANCE ASSISTED BY NAVIGATORS OR NONNAVIGATION ASSISTERS UNDER THE FEDERAL AFFORDABLE CARE ACT.

§33-16I-1. Definitions.

As used in the article:

(1) "Affordable Care Act" means the federal Patient Protection and Affordable Care Act (P.L. 111-148), as amended by the federal Health Care and Education Reconciliation Act of 2010 (P.L. 111-152).

(2) “Agent or broker” means a person or entity licensed by the commissioner as an agent, broker or insurance producer licensed to sell or broker health insurance in this state.

(3) “Applicant” means an individual who is seeking eligibility for him or herself through an application submitted to an exchange or transmitted to the exchange by an agency administering an insurance affordability program for at least one of the following:

(A) Enrollment in a Qualified Health Plan through the exchange; or

(B) Medicaid or Children’s Health Insurance Program, if applicable.

(4) “Federally-facilitated exchange” means an exchange established and operated within the state by the Secretary of the United States Department of Health and Human Services under authority of the Affordable Care Act.

(5) “Application filer” means an applicant, an adult who is in the applicant's household or family, an authorized representative of an applicant, or, if the applicant is a minor or incapacitated, someone acting responsibly for an applicant.

(6) “Exchange” means an American health benefit exchange operating in West Virginia under authority of the Affordable Care Act, including, but not limited to, a federally facilitated exchange, a governmental agency or nonprofit entity that is acting as a health insurance exchange under the Affordable Care Act and makes qualified health plans available to individuals or employers qualified under the Affordable Care Act, an exchange serving the individual market for individuals and employers qualified to obtain qualified health plans, regardless of whether the exchange is established and operated by the State of West Virginia, including a regional exchange or subsidiary exchange, or by the United States Department of Health and Human Services.

(7) “Issuer application assister” means an employee, contractor or agent of a qualified health plan issuer who is not licensed as an agent, broker, or producer by the commissioner and who assists individuals in the individual market with applying for a determination or redetermination of eligibility for coverage through the exchange or for insurance affordability programs.

(8) "Navigator" means a public or private entity or individual authorized by an exchange to serve as a navigator, or who works on behalf of an entity authorized by an exchange to serve as a navigator, pursuant to 42 U.S.C. 18031(i)(1), who facilitates the selection of a qualified health plan through the exchange and performs any other duties specified under 42 U.S.C. 18031(i)(3), a private or public entity or individual that is qualified, and licensed, if appropriate, to engage in the activities and meet the standards described in 45 CFR §155.210.

(9) “Nonnavigator assister” means a person or organization authorized to assist persons to enroll in a qualified health plan and understand the health insurance exchange under 45 CFR § 155.205(d) and (e), and includes issuer application assisters, but does not include an agent or broker.

(10) “Personally identifiable information” means information that can be used on its own or with other information to identify, contact, or locate an individual person, or to identify an individual in context; information from which a person's identity is reasonably ascertainable; any information about an individual obtained or maintained by a navigator or a nonnavigator assister, including any information that can be used to distinguish or trace an individual‘s identity, such as name, social security number, date and place of birth, mother‘s maiden name, or biometric records; and any other information that is linked or linkable to an individual, such as medical, educational, financial, employment and any other personal information about the individual.

(11) “Qualified health plan” means a health plan that meets the standards of the Affordable Care Act and issued or offered by an exchange or other qualified entity.

§33-16I-2. Requirements and qualifications for navigators and nonnavigator assisters; certification by the commissioner.

(a) No person may serve as a navigator or nonnavigator assister in this state that does not meet the following requirements:

(1) Has not been convicted of any of the following offenses:

(A) A felony in the first degree, a capitol felony so designated by the laws of this state or in the jurisdiction in which the judgment of conviction was entered, including:

(i) Treason under section one, article one, chapter sixty-one of this code;

(ii) The crime of murder under sections one, two and three, article two, chapter sixty-one of this code;

(iii) The crime of robbery involving the use or presenting of firearms or other deadly weapons under section twelve, article two, chapter sixty-one of this code;

(iv) The crime of kidnapping under section fourteen-a, article two, chapter sixty-one of this code;

(v) The crime of first degree arson under section one, article three, chapter sixty-one of this code;

(vi) The crime of sexual assault in the first degree under section three, article eight-b, chapter sixty-one of this code; and

(vii) Any felony designated as a “felony of the first degree” or a “capital felony” in the jurisdiction in which the plea is entered or judgment is rendered.

(B) A felony involving money laundering, fraud or embezzlement; or

(2) Is a natural person at least eighteen years of age; (3) Is a United States citizen or legal alien who possesses work authorization from the United States Bureau of Citizenship and Immigration Services;

(4) Has successfully completed all training for a navigator or nonnavigator assister as required by the federal government or the exchange;

(5) Meets all requirements of the Affordable Care Act necessary to qualify to act as a navigator or nonnavigator assister;

(6) Has submitted, at his or her own expense, to a state and national criminal record history check based on fingerprints submitted to the West Virginia State Police or its assigned agent for forwarding to the Federal Bureau of Investigation and shall meet all requirements necessary to accomplish the state and national criminal record history check, including:

(A) Submitting fingerprints for the purposes set forth in this subsection; and

(B) Authorizing the commissioner, the West Virginia State Police and the Federal Bureau of Investigation to use all records submitted and produced for the purpose of determining that the person meets the requirements of this section; and

(7) Has been certified by the commissioner as meeting all requirements in this section.

(b) No person may act or perform services in this state as a navigator or a nonnavigator assister until the person is certified by the commissioner as meeting all of the requirements in this section.

(c) (1) The results of the state and national criminal history record check required in this section may not be released to or by a private entity except:

(A) To the individual who is the subject of the criminal history record check;

(B) With the written authorization of the individual who is the subject of the criminal history record check; or

(2) The criminal history record check and related records are not public records for the purposes of chapter twenty-nine-b of this code.

(3) The commissioner shall promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code which shall set forth the requirements and procedures for the criminal history check and must be consistent with standards established by the Federal Bureau of Investigation and the National Crime Prevention and Privacy Compact as authorized by 42 U. S. C. A. §14611, et seq.

§33-16I-3. Unlawful acts relating to personally identifiable information; penalties for violation.

(a) Except as permissible pursuant to the Affordable Care Act, it is unlawful for a navigator, a nonnavigator assister or a qualified health plan issuer to knowingly or intentionally distribute, deliver, disclose or possess with intent to distribute, deliver or disclose to another person, personally identifiable information obtained from an applicant or an application filer or obtained from records or data in the possession of, or accessible to, an exchange, except as allowable or required by law.

(b) Any person who violates the provisions of this section is guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000 or imprisoned in a state correctional facility for not less than one nor more than fifteen years, or both fined and imprisoned.

(c) In addition to the penalties herein provided, if any person receives compensation for acts or services performed in violation of this section, he or she shall also be subject to a civil penalty of not less than the value of the compensation received nor more than three times the value of the compensation received, as may be determined by a court of competent jurisdiction. Any penalty may be recovered by a person aggrieved as a result of a violation of this section.

§33-16I-4. Penalties for violations.

(a) Any person violating a provision of this article for which there is no other criminal penalty specifically provided is guilty of a misdemeanor. Any person convicted of a first violation shall be fined not less than $1,000 nor more than $2,000, or confined in jail not more than ninety days, or both fined and confined.

(b) Any person convicted of a second or subsequent violation shall be fined not less than $2,000 nor more than $5,000, or confined in jail for a term not to exceed one year, or both fined and confined.

(c) Any corporation, association, partnership or other entity convicted of a first violation of this article shall be fined not less than $2,000 nor more than $5,000.

(d) Any corporation, association, partnership or other entity convicted of a second or subsequent violation, shall be fined not less than $5,000 nor more than $10,000.

(e) Any officer, member, employee or agent of a corporation, association, partnership or other entity, shall be subject to the penalties herein prescribed for individuals.

(f) Each and every day a violation of this article continues shall constitute a separate offense.

(g) The penalties provided in this section do not apply to a violation of the duties or obligations of a financial institution under the certification required by subdivision (7), subsection (j), section eighteen of this article by a financial institution providing trust fund account services to a broker.

§33-16I-5. Injunctions; criminal proceedings.

(a) Whenever the commissioner or other interested person believes that any person has engaged, is engaging or is about to engage in any act that constitutes a violation of this article, the commissioner or other interested person may make application to any court of competent jurisdiction for an order enjoining the acts or services. Upon a showing that the person has engaged in or is about to engage in any act which violates this article, an injunction, restraining order or another appropriate order may be granted by the court without bond.

(b) Whenever the commissioner or other interested person has reason to believe that any person has knowingly violated a provision of this article, the commissioner or other interested person may bring its information to the prosecuting attorney in the county where the violation has occurred who shall cause appropriate criminal proceedings to be brought.

(c) Whenever any other interested person has reason to believe that any person has knowingly violated a provision of this article, such person may bring its information to the attention of the appropriate law-enforcement officer who may cause an investigation to be made in order for appropriate criminal proceedings to be brought.

NOTE: The purpose of this bill is to provide for the protection and privacy of persons seeking health insurance assisted by navigators and nonnavigator assisters under the federal Affordable Care Act. The bill provides the following: definitions; requirements and qualifications for navigators and nonnavigator assisters; certification by the Insurance Commissioner; establishing a criminal felony offense for certain acts of misuse or disclosure of personally identifiable information by navigators and nonnavigator assisters; criminal penalties upon conviction; establishing misdemeanor criminal offenses for violation of the article and providing criminal penalties upon conviction thereof; providing for injunctive relief to enforce the provisions of the article; and providing for the institution of criminal proceedings.

This article is new; therefore, it has been completely underscored.