Code of Virginia — Title 38.2 (Insurance), Chapter 34 (Provisions Relating to Accident and Sickness Insurance)
§ 38.2-3462. Comparable Health Care Service Incentive Program.
A. Beginning with health benefit plans offered or renewed on or after January 1, 2021, each health carrier offering a health benefit plan in the Commonwealth shall develop and implement a program that provides incentives for covered persons in its health benefit plan who elect to receive a comparable health care service that is covered by the health benefit plan from health care providers that are paid less than the average in-network allowed amount paid or payable by that health carrier to network providers for that comparable health care service. A health carrier may base the average paid to a network provider on what that health carrier pays to providers in the network applicable to the covered person's specific health benefit plan, or across all of its health benefit plans offered in the Commonwealth.

B. Incentives may include, but are not limited to, cash payments, gift cards, or credits or reductions of premiums, copayments, or deductibles. Health carriers may let covered persons decide which method they prefer to receive the incentive.

C. The incentive program shall provide covered persons with an incentive for each service or category of comparable health care service resulting from comparison shopping by covered persons. A health carrier is not required to provide a payment or credit to a covered person when the health carrier's saved cost is $25 or less.

D. A health carrier shall determine the allowed amount paid or payable by that health carrier to network providers for that comparable health care service on the basis of the average allowed amount for the procedure or service under the covered person's health benefit plan. Such determination shall be made on the basis of the average of the allowed amounts using data collected over a reasonable period not to exceed one year. A health carrier may determine an alternate methodology for calculating the average allowed amount if approved by the Commission. A health carrier shall, at minimum, inform covered persons of their eligibility for an incentive payment and the process to request the average allowed amount for a procedure or service on the health carrier's website and in health benefit plan materials.

E. Eligibility for an incentive payment may require a covered person to demonstrate, through reasonable documentation such as a quote from the health care provider, that the covered person shopped prior to receiving care from the health care provider who charges less for the comparable health care service than the average allowed amount paid or payable by that health carrier. Health carriers shall provide additional mechanisms for the covered person to satisfy this requirement by utilizing the health carrier's cost transparency website or toll-free number, established under this article.

F. Each health carrier shall make the program available as a component of all small group health benefit plans offered by the health carrier in the Commonwealth. Annually at enrollment or renewal, each health carrier shall provide to any covered person who is enrolled in a small group health benefit plan eligible for the program (i) notice about the availability of the program, (ii) a description of the incentives available to a covered person, (iii) instructions on how to earn such incentives, and (iv) notification that tax treatment of the shared savings amounts or awards will be compliant with the rules of the Internal Revenue Service and treated as taxable income.

G. A comparable health care service incentive payment made by a health carrier in accordance with this section shall not constitute an administrative expense of the health carrier for rate development or rate filing purposes.

H. Prior to offering the program to any covered person, a health carrier shall file with the Commission a description of the program in the manner determined by the Commission. The description shall include a demonstration by the health carrier that the program is cost-effective, including any data relied upon by the health carrier in making such determination. The Commission may review the filing made by the health carrier to determine if the health carrier's program complies with the requirements of this article.

I. A health carrier may petition the Commission to be excluded from participation in the program. The Commission shall exempt from the program a health plan with a limited provider network that demonstrates that the network is incompatible with a shared savings program. In making its determination, the Commission shall consider the impact on premiums related to the administration of the program.

J. Annually by April 1, each health carrier shall file with the Commission, for the most recent calendar year, the total number of comparable health care service incentive payments made pursuant to this article, the use of comparable health care services by category of service for which comparable health care service incentives are made, the total payments made to covered persons, the average amount of incentive payments made by service for such transactions, the total savings achieved below the average allowed amount by service for such transactions, and the total number and percentage of a health carrier's covered persons in small group health benefit plans that participated in such transactions.

K. Beginning no later than 18 months after implementation of comparable health care service incentive programs under this section and annually by November 1 of each year thereafter, the Commission shall submit an aggregate report for all health carriers filing the information required by this section to the chairs of the House Committee on Labor and Commerce and Senate Committee on Commerce and Labor.

2019, cc. 666, 684.