§33-25C-7 Managed care plan liability. - West Virginia Statutes

§33-25C-7. Managed care plan liability.
(a) After settlement or exhaustion of all legal appeals involving determinations of whether health care services are medically necessary or experimental, a managed care plan must comply with the decision rendered in an external review under this article and may be held civilly liable for all damages proximately caused to an enrollee for its failure to so comply.

(b) A managed care plan may not enter into a contract with a physician, hospital, or other health care provider or pharmaceutical company which includes an indemnification or hold harmless clause for the acts or conduct of the managed care plan addressed by this section. Any indemnification of a hold harmless clause in an existing contract is hereby declared void.

(c) It is a defense to any action or liability asserted under this section against a managed care plan that:

(1) The coverage for the health care service in question was provided under the plan and in compliance with the external review decision; or

(2) Neither the managed care plan, nor any employee, agent, or ostensible agent for the managed care plan controlled, influenced, or participated in the health care decision.

(d) This section does not create any liability on the part of an employer, government agency, or an employer group purchasing organization that purchases coverage or assumes risk on behalf of its employers, or employees, or a governmental agency that purchases coverage on behalf of individuals and families.

(e) A person may not maintain a cause of action under this section against a managed care plan unless:

(1) The affected enrollee or the enrollee's representative has exercised the opportunity established in section five of this article and further established by legislative rule to seek external review of the health care treatment decision;

(2) The determination of the external review association was in favor of the enrollee; and

(3) The managed care plan has not complied with the external review association's decision.

(f) Any action under this section shall be commenced within two years of the completion of the external review process: Provided, That a minor or persons under legal disability may commence action within the time period prescribed in section fifteen, article two, chapter fifty-five of this code.

(g) This section does not create any new cause of action, or eliminate any presently existing cause of action.

(h) This section does not apply to workers' compensation insurance under article two, chapter twenty-three of the code.