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2023 West Virginia Code › Chapter 33. Insurance › Article 40. Risk-Based Capital (Rbc) for Insurers › §33-40-2. Rbc Reports

(a) Every domestic insurer , on or prior to each March 1 (the filing date), shall prepare and submit to the commissioner a report of its RBC levels as of the end of the calendar year just ended, in a form and containing the information required by the RBC instructions. In addition, every domestic insurer shall file its RBC report:
(1) With the NAIC in accordance with the RBC instructions; and
(2) With the Insurance Commissioner in any state in which the insurer is authorized to do business, if the Insurance Commissioner has notified the insurer of its request in writing, in which case the insurer shall file its RBC report not later than the later of:
(A) Fifteen days from the receipt of notice to file its RBC report with that state; or
(B) The filing date.
(b) A life and health insurer’s RBC shall be determined in accordance with the formula set forth in the RBC instructions. The formula shall take into account (and may adjust for the covariance between):
(1) The risk with respect to the insurer’s assets;
(2) The risk of adverse insurance experience with respect to the insurer’s liabilities and obligations;
(3) The interest rate risk with respect to the insurer’s business; and
(4) All other business risks and any other relevant risks set forth in the RBC instructions determined in each case by applying the factors in the manner set forth in the RBC instructions.
(c) A property and casualty insurer’s RBC shall be determined in accordance with the applicable formula set forth in the RBC instructions. The formula shall take into account (and may adjust for the covariance between), determined in each case by applying the factors in the manner set forth in the RBC instructions:
(1) Asset risk;
(2) Credit risk;
(3) Underwriting risk; and
(4) All other business risks and any other relevant risks as are set forth in the RBC instructions.
(d) An excess of capital over the amount produced by the risk-based capital requirements contained in this article and the formulas, schedules and instructions referenced in this article is desirable in the business of insurance. Accordingly, insurers and HMOs should seek to maintain capital above the RBC levels required by this article. Additional capital is used and useful in the insurance business and helps to secure insurers against various risks inherent in, or affecting, the business of insurance and not accounted for or only partially measured by the risk-based capital requirements contained in this article.
(e) If a domestic insurer files an RBC report which, in the judgment of the commissioner is inaccurate, then the commissioner shall adjust the RBC report to correct the inaccuracy and shall notify the insurer of the adjustment. The notice shall contain a statement of the reason for the adjustment. An RBC report that is adjusted is referred to as an Adjusted RBC Report.
2023 West Virginia Code › Chapter 33. Insurance › Article 40. Risk-Based Capital (Rbc) for Insurers › §33-40-5. Authorized Control Level Event

(a) "Authorized control level event" means any of the following events:
(1) The filing of an RBC report by the insurer which indicates that the insurer's total adjusted capital is greater than or equal to its mandatory control level RBC but less than its authorized control level RBC;
(2) The notification by the commissioner to the insurer of an adjusted RBC report that indicates the event in subdivision (1) of this subsection, provided the insurer does not challenge the adjusted RBC report under section seven of this article;
(3) If, pursuant to section seven of this article, the insurer challenges an adjusted RBC report that indicates the event in subdivision (1) of this subsection, notification by the commissioner to the insurer that the commissioner has, after a hearing, rejected the insurer's challenge;
(4) The failure of the insurer to respond, in a manner satisfactory to the commissioner, to a corrective order (provided the insurer has not challenged the corrective order) under section seven of this article; or
(5) If the insurer has challenged a corrective order under section seven of this article and the commissioner has, after a hearing, rejected the challenge or modified the corrective order, the failure of the insurer to respond, in a manner satisfactory to the commissioner, to the corrective order subsequent to rejection or modification by the commissioner.
(b) In the event of an authorized control level event with respect to an insurer, the commissioner shall:
(1) Take such actions as are required under section four of this article regarding an insurer with respect to which a regulatory action level event has occurred; or
(2) If the commissioner deems it to be in the best interests of the policyholders and creditors of the insurer and of the public, take such actions as are necessary to cause the insurer to be placed under regulatory control under article ten of this chapter. In the event the commissioner takes such actions, the authorized control level event shall be deemed sufficient grounds for the commissioner to take action under said article, and the commissioner shall have the rights, powers and duties with respect to the insurer as are set forth in said article. In the event the commissioner takes actions under this subdivision pursuant to an adjusted RBC report, the insurer shall be entitled to such protections as are afforded to insurers under the provisions of article ten of this chapter pertaining to summary proceedings.
2023 West Virginia Code › Chapter 33. Insurance › Article 40. Risk-Based Capital (Rbc) for Insurers › §33-40-6. Mandatory Control Level Event

(a) “Mandatory control level event” means any of the following events:
(1) The filing of an RBC report which indicates that the insurer’s adjusted capital is less than its mandatory control level RBC;
(2) Notification by the commissioner to the insurer of an adjusted RBC report that indicates the event in subdivision (1) of this subsection, provided the insurer does not challenge the adjusted RBC report under section seven of this article; or
(3) If, pursuant to section seven of this article, the insurer challenges an adjusted RBC report that indicates the event in subdivision (1) of this subsection, notification by the commissioner to the insurer or HMO that the commissioner has, after a hearing, rejected the insurer’s or HMO’s challenge.
(b) If there is a mandatory control level event:
(1) With respect to a life insurer, the commissioner shall take any actions that are necessary to place the insurer under regulatory control under article ten of this chapter. In that event, the mandatory control level event shall be considered sufficient grounds for the commissioner to take action under said article, and the commissioner has the rights, powers and duties with respect to the insurer that are set forth in said article. If the commissioner takes actions pursuant to an adjusted RBC report, the insurer is entitled to the protections of said article pertaining to summary proceedings. Notwithstanding any of the provisions of this subdivision, the commissioner may forego action for up to ninety days after the mandatory control level event if the commissioner finds there is a reasonable expectation that the mandatory control level event may be eliminated within the ninety-day period.
(2) With respect to a property and casualty insurer, the commissioner shall take any actions that are necessary to place the insurer under regulatory control under article ten of this chapter or, in the case of an insurer which is writing no business and which is running-off its existing business, may allow the insurer to continue its run-off under the supervision of the commissioner. In either event, the mandatory control level event shall be considered sufficient grounds for the commissioner to take action under said article and the commissioner has the rights, powers and duties with respect to the insurer that are set forth in said article. If the commissioner takes actions pursuant to an adjusted RBC report, the insurer is entitled to the protections of said article pertaining to summary proceedings. Notwithstanding any of the provisions of this subdivision, the commissioner may forego action for up to ninety days after the mandatory control level event if the commissioner finds there is a reasonable expectation that the mandatory control level event may be eliminated within the ninety-day period.
2023 West Virginia Code › Chapter 33. Insurance › Article 40. Risk-Based Capital (Rbc) for Insurers › §33-40-7. Hearings

Insurers have the right to a confidential departmental hearing, on the record, at which the insurer may challenge any determination or action by the commissioner made pursuant to the provisions of this article. The insurer shall notify the commissioner of its request for a hearing within ten days after receiving notification from the commissioner.
(a) Notification to an insurer by the commissioner of an adjusted RBC report; or
(b) Notification to an insurer by the commissioner that:
(1) The insurer’s RBC plan or revised RBC plan is unsatisfactory; and
(2) The notification constitutes a regulatory action level event with respect to the insurer; or
(c) Notification to any insurer by the commissioner that the insurer has failed to adhere to its RBC plan or revised RBC plan and that the failure has a substantial adverse effect on the ability of the insurer to eliminate the company action level event with respect to the insurer in accordance with its RBC plan or revised RBC plan; or
(d) Notification to an insurer by the commissioner of a corrective order with respect to the insurer.
(e) Upon receipt of the insurer’s request for a hearing, the commissioner shall set a date for the hearing, which shall be no less than fifteen nor more than forty-five days after the date of the insurer’s request.
2023 West Virginia Code › Chapter 33. Insurance › Article 40. Risk-Based Capital (Rbc) for Insurers › §33-40-9. Supplemental Provisions; Rules; Exemption

(a) The provisions of this article are supplemental to any other provisions of the laws of this state and shall not preclude or limit any other powers or duties of the commissioner under such laws, including, but not limited to, article ten of this chapter.
(b) The commissioner may adopt reasonable rules necessary for the implementation of this article.
(c) The commissioner may exempt from the application of this article any domestic property and casualty insurer which:
(1) Writes direct business only in this state;
(2) Writes direct annual premiums of $2 million or less; and
(3) Assumes no reinsurance in excess of five percent of direct premium written.
(d) A domestic farmers' mutual fire insurance company is exempt from the provisions of this article when:
(1) It writes direct business only in this state;
(2) It writes direct annual premiums of $2 million or less; and
(3) It assumes no reinsurance in excess of five percent of direct premium written.
2023 West Virginia Code › Chapter 33. Insurance › Article 40. Risk-Based Capital (Rbc) for Insurers › §33-40-10. Foreign Insurers

(a) Any foreign insurer shall, upon the written request of the commissioner, submit to the commissioner an RBC report as of the end of the calendar year just ended the later of:
(1) The date an RBC report would be required to be filed by a domestic insurer under this act; or
(2) Fifteen days after the request is received by the foreign insurer.
Any foreign insurer shall, at the written request of the commissioner, promptly submit to the commissioner a copy of any RBC plan that is filed with the Insurance Commissioner of any other state.
(b) In the event of a company action level event, regulatory action level event or authorized control level event with respect to any foreign insurer as determined under the RBC statute applicable in the state of domicile of the insurer (or, if no RBC statute is in force in that state, under the provisions of this article), if the Insurance Commissioner of the state of domicile of the foreign insurer fails to require the foreign insurer to file an RBC plan in the manner specified under that state's RBC statute (or, if no RBC statute is in force in that state, under section three of this article), the commissioner may require the foreign insurer to file an RBC plan with the commissioner. In such event, the failure of the foreign insurer to file an RBC plan with the commissioner shall be grounds to order the insurer to cease and desist from writing new insurance business in this state.
(c) In the event of a mandatory control level event with respect to any foreign insurer, if no domiciliary receiver has been appointed with respect to the foreign insurer under the rehabilitation and liquidation statute applicable in the state of domicile of the foreign insurer, the commissioner may make application to the circuit court of Kanawha County permitted under article ten of this chapter with respect to the liquidation of property of foreign insurers found in this state and the occurrence of the mandatory control level event shall be considered adequate grounds for the application.
2023 West Virginia Code › Chapter 33. Insurance › Article 40A. Risked-Based Capital for Health Organizations › §33-40A-2. Rbc Reports

(a) A domestic health organization, on or prior to each March 1 (the filing date), shall prepare and submit to the commissioner a report of its RBC levels as of the end of the calendar year just ended, in a form and containing such information as is required by the RBC instructions. In addition, a domestic health organization shall file its RBC report:
(1) With the NAIC in accordance with the RBC instructions; and
(2) With the Insurance Commissioner in any state in which the health organization is authorized to do business, if the Insurance Commissioner has notified the health organization of its request in writing, in which case the health organization shall file its RBC report not later than the later of:
(A) Fifteen days from the receipt of notice to file its RBC report with that state; or
(B) The filing date.
(b) A health organization’s RBC shall be determined in accordance with the formula set forth in the RBC instructions. The formula shall take the following into account (and may adjust for the covariance between) determined in each case by applying the factors in the manner set forth in the RBC instructions.
(1) Asset risk;
(2) Credit risk;
(3) Underwriting risk; and
(4) All other business risks and such other relevant risks as are set forth in the RBC instructions.
(c) An excess of capital (i.e. net worth) over the amount produced by the risk-based capital requirements contained in this article and the formulas, schedules and instructions referenced in this article is desirable in the business of health insurance. Accordingly, health organizations should seek to maintain capital above the RBC levels required by this article. Additional capital is used and useful in the insurance business and helps to secure a health organization against various risks inherent in, or affecting, the business of insurance and not accounted for or only partially measured by the risk-based capital requirements contained in this article.
(d) If a domestic health organization files an RBC report that in the judgment of the commissioner is inaccurate, then the commissioner shall adjust the RBC report to correct the inaccuracy and shall notify the health organization of the adjustment. The notice shall contain a statement of the reason for the adjustment. An RBC report as so adjusted is referred to as an adjusted RBC report.
2023 West Virginia Code › Chapter 33. Insurance › Article 40A. Risked-Based Capital for Health Organizations › §33-40A-5. Authorized Control Level Event

(a) “Authorized control level event” means any of the following events:
(1) The filing of an RBC report by the health organization that indicates that the health organization’s total adjusted capital is greater than or equal to its mandatory control level RBC but less than its authorized control level RBC;
(2) The notification by the commissioner to the health organization of an adjusted RBC report that indicates the event in subdivision (1) of this subsection, if the health organization does not challenge the adjusted RBC report under section seven of this article;
(3) If, pursuant to section seven of this article, the health organization challenges an adjusted RBC report that indicates the event in subdivision (1) of this subsection, notification by the commissioner to the health organization that the commissioner has, after a hearing, rejected the health organization’s challenge;
(4) The failure of the health organization to respond, in a manner satisfactory to the commissioner, to a corrective order, if the health organization has not challenged the corrective order under section seven of this article; or
(5) If the health organization has challenged a corrective order under section seven of this article and the commissioner has, after a hearing, rejected the challenge or modified the corrective order, the failure of the health organization to respond, in a manner satisfactory to the commissioner, to the corrective order subsequent to rejection or modification by the commissioner.
(b) If there is an authorized control level event with respect to a health organization, the commissioner shall:
(1) Take such actions as are required under section four of this article regarding a health organization with respect to which a regulatory action level event has occurred; or
(2) If the commissioner considers it to be in the best interests of the policyholders and creditors of the health organization and of the public, take such actions as are necessary to cause the health organization to be placed under regulatory control under article ten of this chapter. If the commissioner takes such actions, the authorized control level event shall be considered sufficient grounds for the commissioner to take action under article ten of this chapter, and the commissioner has the rights, powers and duties with respect to the health organization as are set forth in article ten of this chapter. If the commissioner takes actions under this subdivision pursuant to an adjusted RBC report, the health organization is entitled to such protections as are afforded to health organizations under article ten of this chapter pertaining to summary proceedings.
2023 West Virginia Code › Chapter 33. Insurance › Article 40A. Risked-Based Capital for Health Organizations › §33-40A-6. Mandatory Control Level Event

(a) “Mandatory control level event” means any of the following events:
(1) The filing of an RBC report which indicates that the health organization’s total adjusted capital is less than its mandatory control level RBC;
(2) Notification by the commissioner to the health organization of an adjusted RBC report that indicates the event in subdivision (1) of this subsection, if the health organization does not challenge the adjusted RBC report under section seven of this article; or
(3) If, pursuant to section seven of this article, the health organization challenges an adjusted RBC report that indicates the event in subdivision (1) of this subsection, notification by the commissioner to the health organization that the commissioner has, after a hearing, rejected the health organization’s challenge.
(b) If it is a mandatory control level event, the commissioner shall take such actions as are necessary to place the health organization under regulatory control under article ten of this chapter. In that event, the mandatory control level event is sufficient grounds for the commissioner to take action under article ten of this chapter, and the commissioner has the rights, powers and duties with respect to the health organization as are set forth in article ten of this chapter. If the commissioner takes actions pursuant to an adjusted RBC report, the health organization is entitled to the protections of article ten of this chapter pertaining to summary proceedings. Notwithstanding any of the foregoing, the commissioner may forego action for up to ninety days after the mandatory control level event if the commissioner finds there is a reasonable expectation that the mandatory control level event may be eliminated within the ninety-day period.
2023 West Virginia Code › Chapter 33. Insurance › Article 40A. Risked-Based Capital for Health Organizations › §33-40A-7. Hearings

Upon the occurrence of any of the following events the health organization has the right to a confidential departmental hearing, on a record, at which the health organization may challenge any determination or action by the commissioner. The health organization shall notify the commissioner of its request for a hearing within five days after the notification by the commissioner under subsection (a), (b), (c) or (d) of this section. Upon receipt of the health organization’s request for a hearing, the commissioner shall set a date for the hearing, which shall be no less than ten nor more than thirty days after the date of the health organization’s request. The events include:
(a) Notification to a health organization by the commissioner of an adjusted RBC report;
(b) Notification to a health organization by the commissioner that:
(1) The health organization’s RBC plan or revised RBC plan is unsatisfactory; and
(2) Notification constitutes a regulatory action level event with respect to the health organization;
(c) Notification to a health organization by the commissioner that the health organization has failed to adhere to its RBC plan or revised RBC plan and that the failure has a substantial adverse effect on the ability of the health organization to eliminate the company action level event with respect to the health organization in accordance with its RBC plan or revised RBC plan; or
(d) Notification to a health organization by the commissioner of a corrective order with respect to the health organization.
2023 West Virginia Code › Chapter 33. Insurance › Article 40A. Risked-Based Capital for Health Organizations › §33-40A-9. Supplemental Provisions; Rules; Exemption

(a) The provisions of this article are supplemental to any other provisions of the laws of this state, and do not preclude or limit any other powers or duties of the commissioner under such laws, including, but not limited to, article ten and article thirty-four of this chapter.
(b) The commissioner may propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code, as are necessary to effectuate the purposes of this article and to prevent circumvention and evasion thereof.
(c) The commissioner may exempt from the application of this article a domestic health organization that:
(1) Writes direct business only in this state;
(2) Assumes no reinsurance in excess of five percent of direct premiums written; and
(3) Writes direct annual premiums for comprehensive medical business of $2 million or less; or
(4) Is a limited health service organization that covers less than two thousand lives.
2023 West Virginia Code › Chapter 33. Insurance › Article 40A. Risked-Based Capital for Health Organizations › §33-40A-10. Foreign Health Organizations

(a)(1) A foreign health organization, upon the written request of the commissioner, shall submit to the commissioner an RBC report as of the end of the calendar year just ended, not later than the later of:
(A) The date an RBC report would be required to be filed by a domestic health organization under this article; or
(B) Fifteen days after the request is received by the foreign health organization.
(2) A foreign health organization, at the written request of the commissioner, shall promptly submit to the commissioner a copy of any RBC plan that is filed with the insurance commissioner of any other state.
(b) If there is a company action level event, regulatory action level event or authorized control level event with respect to a foreign health organization as determined under the RBC statute applicable in the state of domicile of the health organization (or, if no RBC statute is in force in that state, under the provisions of this article), if the insurance commissioner of the state of domicile of the foreign health organization fails to require the foreign health organization to file an RBC plan in the manner specified under that state’s RBC statute (or, if no RBC statute is in force in that state, under section three of this article), the commissioner may require the foreign health organization to file an RBC plan with the commissioner. The failure of the foreign health organization to file an RBC plan with the commissioner is grounds to order the health organization to cease and desist from writing new insurance business in this state.
(c) If there is a mandatory control level event with respect to a foreign health organization, and no domiciliary receiver has been appointed with respect to the foreign health organization under the rehabilitation and liquidation statute applicable in the state of domicile of the foreign health organization, the commissioner may make application to the circuit court of Kanawha County permitted under section two, article ten of this chapter with respect to the liquidation of property of foreign health organizations found in this state, and the occurrence of the mandatory control level event shall be considered adequate grounds for the application.
2023 West Virginia Code › Chapter 33. Insurance › Article 40B. Risk Management and Own Risk and Solvency Assessment Act › §33-40B-1. Purpose and Scope

(a) The purpose of this article is to provide requirements for maintaining a risk management framework and completing an own risk and solvency assessment (ORSA) and provide guidance and instructions for filing an ORSA summary report with the Insurance Commissioner of this state.
(b) The requirements of this article apply to all insurers domiciled in this state unless exempt pursuant to section six of this article.
(c) The Legislature finds and declares that the ORSA summary report shall contain confidential and sensitive information related to an insurer or insurance group’s identification of risks material and relevant to the insurer or insurance group filing the report. This information shall include proprietary and trade-secret information that has the potential for harm and competitive disadvantage to the insurer or insurance group if the information is made public. It is the intent of this Legislature that the ORSA summary report shall be a confidential document filed with the commissioner, that the ORSA summary report may be shared only as stated herein and to assist the commissioner in the performance of his or her duties, and that in no event shall the ORSA summary report be subject to public disclosure.
2023 West Virginia Code › Chapter 33. Insurance › Article 40B. Risk Management and Own Risk and Solvency Assessment Act › §33-40B-2. Definitions

(a) “Commissioner” means the Insurance Commissioner of the State of West Virginia, his or her deputies or the insurance department, as appropriate.
(b) “Insurance group” means, for the purpose of conducting an ORSA, those insurers and affiliates included within an insurance holding company system as defined in article twenty-seven of this chapter.
(c) “Insurer” has the same meaning as set forth in section two, article one of this chapter, except that it does not include agencies, authorities or instrumentalities of the United States, its possessions and territories, the Commonwealth of Puerto Rico, the District of Columbia or a state or political subdivision of a state.
(d) “NAIC” means the National Association of Insurance Commissioners.
(e) “Own risk and solvency assessment” or “ORSA” means a confidential internal assessment, appropriate to the nature, scale and complexity of an insurer or insurance group, conducted by that insurer or insurance group of the material and relevant risks associated with the insurer or insurance group’s current business plan and the sufficiency of capital resources to support those risks.
(f) “ORSA Guidance Manual” means the Own Risk and Solvency Assessment Guidance Manual developed and adopted by the NAIC and as amended from time to time. A change in the ORSA Guidance Manual shall be effective on the January 1 following the calendar year in which the changes have been adopted by the NAIC.
(g) “ORSA summary report” means a confidential high-level summary of an insurer or insurance group’s ORSA.
2023 West Virginia Code › Chapter 33. Insurance › Article 40B. Risk Management and Own Risk and Solvency Assessment Act › §33-40B-3. Risk Management Framework

An insurer shall maintain a risk management framework to assist the insurer with identifying, assessing, monitoring, managing and reporting on its material and relevant risks. This requirement may be satisfied if the insurance group of which the insurer is a member maintains a risk management framework applicable to the operations of the insurer.
2023 West Virginia Code › Chapter 33. Insurance › Article 40B. Risk Management and Own Risk and Solvency Assessment Act › §33-40B-4. Orsa Requirement

Subject to section six of this article, an insurer, or the insurance group of which the insurer is a member, shall regularly conduct an ORSA consistent with a process comparable to the ORSA Guidance Manual. The ORSA shall be conducted no less than annually but also at any time when there are significant changes to the risk profile of the insurer or the insurance group of which the insurer is a member.
2023 West Virginia Code › Chapter 33. Insurance › Article 40B. Risk Management and Own Risk and Solvency Assessment Act › §33-40B-5. Orsa Summary Report

(a) Upon the commissioner’s request, and no more than once each year, an insurer shall submit to the commissioner an ORSA summary report or any combination of reports that together contain the information described in the ORSA Guidance Manual, applicable to the insurer and/or, the insurance group of which it is a member. Notwithstanding any request from the commissioner, if the insurer is a member of an insurance group, the insurer shall submit the report(s) required by this subsection if the commissioner is the lead state commissioner of the insurance group as determined by the procedures within the Financial Analysis Handbook adopted by the NAIC.
(b) The report(s) shall include a signature of the insurer or insurance group’s chief risk officer or other executive having responsibility for the oversight of the insurer’s enterprise risk management process attesting to the best of his or her belief and knowledge that the insurer applies the enterprise risk management process described in the ORSA summary report and that a copy of the report has been provided to the insurer’s board of directors or the appropriate committee thereof.
(c) An insurer may comply with subsection (a) of this section by providing the most recent and substantially similar report(s) provided by the insurer or another member of an insurance group of which the insurer is a member to the commissioner of another state or to a supervisor or regulator of a foreign jurisdiction, if that report provides information that is comparable to the information described in the ORSA Guidance Manual. Any report in a language other than English must be accompanied by a translation of that report into the English language.
2023 West Virginia Code › Chapter 33. Insurance › Article 40B. Risk Management and Own Risk and Solvency Assessment Act › §33-40B-7. Contents of Orsa Summary Report

(a) The ORSA summary report shall be prepared consistent with the ORSA Guidance Manual, subject to the requirements of subsection (b) of this section. Documentation and supporting information shall be maintained and made available upon examination or upon request of the commissioner.
(b) The review of the ORSA summary report, and any additional requests for information, shall be made using similar procedures currently used in the analysis and examination of multistate or global insurers and insurance groups.
2023 West Virginia Code › Chapter 33. Insurance › Article 40B. Risk Management and Own Risk and Solvency Assessment Act › §33-40B-9. Sanctions

Any insurer failing, without just cause, to timely file the ORSA summary report as required in this article shall, after notice and hearing, pay a penalty of $2,500 for each day’s delay, to be recovered by the commissioner and the penalty so recovered shall be paid into the General Revenue Fund of this state. The maximum penalty under this section is $75,000. The commissioner may reduce the penalty if the insurer demonstrates to the commissioner that the imposition of the penalty would constitute a financial hardship to the insurer.
2023 West Virginia Code › Chapter 33. Insurance › Article 41. West Virginia Insurance Fraud Prevention Act › §33-41-1. Short Title; Legislative Findings and Purpose

(a) This article may be cited as the "West Virginia Insurance Fraud Prevention Act."
(b) The Legislature finds that the business of insurance involves many transactions of numerous types that have potential for fraud and other illegal activities. This article is intended to permit use of the expertise of the commissioner to investigate and help prosecute insurance fraud and other crimes related to the business of insurance more effectively, and to assist and receive assistance from state, local and federal law-enforcement and regulatory agencies in enforcing laws prohibiting crimes relating to the business of insurance.
2023 West Virginia Code › Chapter 33. Insurance › Article 41. West Virginia Insurance Fraud Prevention Act › §33-41-3. Fraud Warning Authorized; Statement Required of Nonadmitted Insurers

(a) Claims forms and applications for insurance, regardless of the form of transmission, may contain the following warning or a substantially similar caveat:
"Any person who knowingly presents a false or fraudulent claim for payment of a loss or benefit or knowingly presents false information in an application for insurance is guilty of a crime and may be subject to fines and confinement in prison."
(b) The lack of a warning as authorized by the provisions of subsection (a) of this section does not constitute a defense in any prosecution for a fraudulent or illegal act nor shall it constitute the basis for any type of civil cause of action.
(c) Policies issued by nonadmitted insurers pursuant to article twelve-c of this chapter shall contain a statement disclosing the status of the insurer to do business in the state where the policy is delivered or issued for delivery or the state where coverage is in force. The requirement of this subsection may be satisfied by a disclosure specifically required by section five, article twelve-c of this chapter; section nine, article thirty-two of this chapter; and section eighteen, article thirty-two of this chapter.
2023 West Virginia Code › Chapter 33. Insurance › Article 41. West Virginia Insurance Fraud Prevention Act › §33-41-4. Authority of the Commissioner; Use of Special Assistant Prosecutors

(a) The commissioner may investigate suspected criminal acts relating to the business of insurance as authorized by the provisions of this article.
(b) If the prosecuting attorney of the county in which a criminal violation relating to the business of insurance occurs determines that his or her office is unable to take appropriate action, he or she may petition the appropriate circuit court for the appointment of a special prosecutor or special assistant prosecutor from the West Virginia prosecuting attorney Institute pursuant to the provisions of section six, article four, chapter seven of this code. Notwithstanding the provisions of that section, attorneys employed by the commissioner and assigned to the insurance fraud unit created by the provisions of section eight of this article may prosecute or assist in the prosecution of violations of the criminal laws of this state related to the business of insurance and may act as special prosecutors or special assistant prosecutors in those cases if assistance is sought by the prosecuting attorney or special prosecutor assigned by the institute to prosecute those matters.
(c) Funds allocated for insurance fraud prevention may be dispersed by the commissioner, at his or her discretion, for the purpose of insurance fraud enforcement as authorized by the provisions of this code.
(d) The Insurance Fraud Unit authorized by the provisions of section eight of this article may assist federal law-enforcement agencies, the West Virginia state police, the State Fire Marshal, municipal police departments and the sheriffs of the counties in West Virginia in investigating crimes related to the business of insurance.
(e) The commissioner may conduct public outreach, education, and awareness programs on the costs of insurance fraud to the public.
2023 West Virginia Code › Chapter 33. Insurance › Article 41. West Virginia Insurance Fraud Prevention Act › §33-41-4a. Acceptance of Forfeiture Proceeds by Commissioner; Creation of Special Revenue Fund; Court Awards of Investigation Costs

(a) The commissioner may accept proceeds of court ordered forfeiture proceedings involving the prosecution of fraudulent insurance acts.
(b) Forfeiture proceeds shall be deposited into the special revenue account established in subsection (c) of this section, and the commissioner may make expenditures from the fund in order to effectuate the purposes of this article.
(c) The Insurance Fraud Prevention Fund is hereby created. The fund shall be administered by the commissioner and shall consist of all moneys made available from court ordered forfeiture proceedings involving the prosecution of fraudulent insurance acts, including all interest or other return earned from investment of the fund which may be invested in the manner permitted by 12-6C-9 of this code. Expenditures from the fund shall be for the purposes set forth in this article and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of 12-3-1,
et seq.
of this code and upon the fulfillment of the provisions set forth in 11B-2-1,
et seq.
of this code:
Provided,
That for the fiscal year ending June 30, 2021, expenditures are authorized from collections rather than pursuant to an explicit appropriation by the Legislature. Any balance, including accrued interest and other returns, remaining in the fund at the end of each fiscal year shall not revert to the General Revenue Fund but shall remain in the fund and be expended as provided by this section.
2023 West Virginia Code › Chapter 33. Insurance › Article 41. West Virginia Insurance Fraud Prevention Act › §33-41-5. Mandatory Reporting of Insurance Fraud or Criminal Offenses Otherwise Related to the Business of Insurance

(a) A person engaged in the business of insurance having knowledge or a reasonable belief that a fraudulent insurance act or another crime related to the business of insurance is being, will be, or has been committed shall provide to the commissioner the information required by, and in a manner prescribed by, the commissioner.
(b) Any other person having knowledge or a reasonable belief that a fraudulent insurance act or another crime related to the business of insurance is being, will be, or has been committed may provide to the commissioner the information requested by, and in a manner prescribed by, the commissioner.
(c) The commissioner may prescribe a reporting form to facilitate reporting of possible fraudulent insurance acts or other offenses related to the business of insurance for use by persons other than those persons referred to in subsection (a) of this section.
(d) Notwithstanding any other provision of this code, a person engaged in the business of insurance shall furnish and disclose any information, including documents, materials, or other information in its possession concerning a fraudulent insurance act or a suspected fraudulent insurance act to the commissioner. Disclosures provided pursuant to this section are subject to the confidentiality provisions set forth in 33-41-7 of this code.
2023 West Virginia Code › Chapter 33. Insurance › Article 41. West Virginia Insurance Fraud Prevention Act › §33-41-6. Immunity From Liability

(a) There shall be no civil liability imposed on and no cause of action shall arise from a person's furnishing information concerning suspected or anticipated fraud relating to the business of insurance, if the information is provided to or received from:
(1) The commissioner or the commissioner's employees, agents or representatives;
(2) Federal, state, or local law-enforcement or regulatory officials or their employees, agents or representatives;
(3) A person involved in the prevention and detection of insurance fraud or that person's agents, employees or representatives; or
(4) The national association of Insurance Commissioners or its employees, agents or representatives.
(b) The provisions of subsection (a) of this section are not applicable to materially incorrect statements made maliciously or fraudulently by a person designated a mandated reporter pursuant to the provisions of subsection (a), section five of this article or made in reckless disregard to the truth or falsity of the statement by those not mandated to report. In an action brought against a person for filing a report or furnishing other information concerning an alleged insurance fraud, the party bringing the action shall plead with specificity any facts supporting the allegation that subsection (a) of this section does not apply because the person filing the report or furnishing the incorrect information did so maliciously in the case of a mandated reporter or in the case of a person not designated a mandated reporter, in reckless disregard for the truth or falsity of the statement.
(c) Nothing in this article shall be construed to limit, abrogate or modify existing statutes or case law applicable to the duties or liabilities of insurers regarding bad faith or unfair trade practices.
(d) This section does not abrogate or modify common law or statutory privileges or immunities.
2023 West Virginia Code › Chapter 33. Insurance › Article 41. West Virginia Insurance Fraud Prevention Act › §33-41-8a. Fingerprinting and Background Check for Applicants for Employment With Fraud Unit

(a) The commissioner shall require any applicant for employment with the fraud unit to be fingerprinted. The commissioner is authorized to conduct a criminal records check through the Criminal Identification Bureau of the West Virginia State Police and a national criminal history check through the Federal Bureau of Investigation. The results of any criminal records or criminal history check shall be sent to the commissioner. The West Virginia State Police may exchange this fingerprint data with the Federal Bureau of Investigation.
(b) The Inspector General shall not disclose information obtained pursuant to subsection (a) of this section except for purposes directly related to the employment of the applicant.
2023 West Virginia Code › Chapter 33. Insurance › Article 41. West Virginia Insurance Fraud Prevention Act › §33-41-8b. Fraud Investigators May Present Complaint Directly to Magistrate

Notwithstanding any other provision of this code to the contrary, any person authorized under this article to initiate and conduct investigations may submit complaints directly to a magistrate after review and approval by the prosecuting attorney, if the complaint is related to the business of insurance and may be prosecuted as a criminal violation under this chapter; chapter twenty-three of this code; article three, chapter sixty-one of this code; or section five, article four of said chapter.
The complaint shall be in the form of a written statement of the essential facts constituting the offense charged. The complaint shall be presented to and sworn before a magistrate in the county where the offense is alleged to have occurred.
If it appears from the complaint, or from an affidavit or affidavits filed with the complaint, that there is probable cause to believe that an offense has been committed and that the defendant committed it, a warrant for the arrest of the defendant shall be issued to any officer authorized by law to arrest persons charged with offenses against the state.
2023 West Virginia Code › Chapter 33. Insurance › Article 41. West Virginia Insurance Fraud Prevention Act › §33-41-9. Other Law-Enforcement or Regulatory Authority

This article does not:
(1) Preempt the authority or relieve the duty of other law-enforcement or regulatory agencies to investigate, examine and prosecute suspected violations of law;
(2) Prevent or prohibit a person from disclosing voluntarily information concerning insurance fraud to a law-enforcement or regulatory agency other than the insurance fraud unit; or
(3) Limit the powers granted elsewhere by the laws of this state to the commissioner or his or her agents to investigate and examine possible violations of law and to take appropriate action against violators of law.
2023 West Virginia Code › Chapter 33. Insurance › Article 41. West Virginia Insurance Fraud Prevention Act › §33-41-11. Fraudulent Insurance Acts; Interference and Participation of Convicted Felons Prohibited

(a) A person shall not commit a fraudulent insurance act as defined in 33-41-2 of this code.
(b) A person shall not knowingly or intentionally interfere with the enforcement of the provisions of this article or investigations of suspected or actual violations of this article.
(c) A person convicted of a felony involving dishonesty or breach of trust, or a felony violation law reasonably related to the business of insurance, shall not participate in the business of insurance.
(d) A person in the business of insurance shall not knowingly or intentionally permit a person convicted of a felony involving dishonesty or breach of trust, or of a felony reasonably related to the business of insurance, to participate in the business of insurance.
2023 West Virginia Code › Chapter 33. Insurance › Article 41. West Virginia Insurance Fraud Prevention Act › §33-41-11a. Insurer Antifraud Initiatives

(a) Insurers shall have antifraud initiatives reasonably calculated to detect, prosecute, and prevent fraudulent insurance acts.
(b) Antifraud initiatives may include:
(1) Fraud investigators, who may be insurer employees or independent contractors; or
(2) An antifraud plan submitted to the commissioner. Antifraud plans submitted to the commissioner are privileged and confidential, are exempt from public disclosure under the provisions of 29B-1-1
et seq.
of this code, and are not subject to discovery or subpoena in a civil or criminal action.
(c) The commissioner may propose legislative rules for promulgation in accordance with 29A-3-1
et seq.
of this code to set forth requirements or standards for the submission of insurer antifraud plans.
2023 West Virginia Code › Chapter 33. Insurance › Article 42. Women's Access to Health Care Act › §33-42-2. Legislative Findings and Purpose

The Legislature finds and declares that adequate delivery of health care services to women requires direct access to primary and preventative obstetrical and gynecological services, which services may be provided as "well woman examinations", direct access without prior authorization to prenatal and obstetrical services for pregnant women and access to certain services essential to the physical and psychological integrity of women.