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2023 West Virginia Code › Chapter 33. Insurance › Article 42. Women's Access to Health Care Act › §33-42-3. Definitions

For purposes of this article:
(1) "Advanced nurse practitioner" means a certified nurse-midwife, or an advanced nurse practitioner certified to practice in family practice, women's health (ob/gyn), or primary care adult, geriatric or pediatric practice, practicing within the lawful scope of that provider's practice.
(2) "Health benefits policy" means any individual or group plan, policy or contract for health care services issued, delivered, issued for delivery or renewed in this state by a health care corporation, health maintenance organization, accident and sickness insurer, fraternal benefit society, nonprofit hospital service corporation, nonprofit medical service corporation or similar entity, when the policy or plan covers hospital, medical or surgical expenses.
(3) "Partial-birth abortion" means an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery.
(4) "Physician performing a partial-birth abortion" means a doctor of medicine or osteopathy legally authorized to practice medicine and surgery in West Virginia, or any other individual who is legally authorized by the state to perform abortions: Provided, That any individual who is not a physician or not otherwise legally authorized by the state to perform abortions, but who nevertheless directly performs a partial-birth abortion, is subject to the provisions of this article.
(5) "Vaginally delivers a living fetus before killing the fetus" means deliberately and intentionally delivering into the vagina a living fetus, or a substantial portion thereof, for the purpose of performing a procedure that the physician or person delivering the living fetus knows will kill the fetus, and kills the fetus.
(6) "Women's health care provider" means an obstetrician/ gynecologist, advanced nurse practitioner certified to practice in women's health (ob/gyn), certified nurse-midwife or physician assistant-midwife practicing within the lawful scope of that provider's practice.
2023 West Virginia Code › Chapter 33. Insurance › Article 42. Women's Access to Health Care Act › §33-42-4. Limitations on Conditions of Coverage

No health benefits policy may require as a condition to the coverage of basic primary and preventative obstetrical and gynecological services that a woman first obtain a referral from a primary care physician: Provided, That for a health maintenance organization authorized under article twenty-five-a of this chapter, direct access, at least annually, to a women's health care provider for purposes of a well woman examination shall satisfy the foregoing requirement. No health benefits policy may require as a condition to the coverage of prenatal or obstetrical care that a woman first obtain a referral for those services by a primary care physician. No health benefits policy providing coverage for surgical services in a hospital inpatient or outpatient setting may deny coverage for: (1) Reconstruction of the breast following mastectomy; or (2) reconstructive or cosmetic surgery required as a result of an injury caused by an act of family violence as defined in section three, article two-a, chapter forty-eight of this code, when the person inflicting the injury was convicted of a felony, a lesser included misdemeanor offense, or a charge of domestic battery for inflicting the injury.
2023 West Virginia Code › Chapter 33. Insurance › Article 42. Women's Access to Health Care Act › §33-42-5. Required Disclosure

Every health benefits policy that is issued, delivered, issued for delivery or renewed in this state on or after July 1, 1998, shall disclose in writing to enrollees, subscribers and insureds, in clear and accurate language, the female enrollee's right of direct access to a women's health care provider of her choice. The information required to be disclosed shall include, at a minimum, any specific women's health care services that are excluded from coverage and the health benefits policy's right to limit coverage to medically necessary and appropriate women's health care services.
2023 West Virginia Code › Chapter 33. Insurance › Article 42. Women's Access to Health Care Act › §33-42-7. Limitation on Number of Women's Health Care Providers

A health benefits policy may limit the number of women's health care providers in a network: Provided, That a sufficient number of providers are available to serve a defined population or geographic service area so that female enrollees will have direct and timely access to women's health care providers.
2023 West Virginia Code › Chapter 33. Insurance › Article 42. Women's Access to Health Care Act › §33-42-8. Partial-Birth Abortions Prohibited; Criminal Penalties; Exceptions; Hearings by State Board of Medicine

(a) Any person who knowingly performs a partial-birth abortion and thereby kills a human fetus is guilty of a felony and, shall be fined not less than $10,000, nor more than $50,000, or imprisoned not more than two years, or both fined and imprisoned. This section does not apply to a partial-birth abortion that is necessary to save the life of a mother when her life is endangered by a physical disorder, illness or injury.
(b) A physician charged pursuant to this section may seek a hearing before the West Virginia Board of Medicine on the issue of whether the physicians act was necessary to save the life of a mother pursuant to the provisions of subsection (a) of this section. The findings of the Board of Medicine are admissible on this issue at the trial of the physician. Upon a motion by the defendant, the court shall delay the beginning of trial for not more than thirty days to permit the Board of Medicine hearing to take place.
(c) No woman may be prosecuted under the provisions of this section for having a partial-birth abortion, nor may she be prosecuted for conspiring to violate the provisions of this section.
(d) Effective from the reenactment of this section during the third extraordinary session of the Legislature, 2022, this article is of no force or effect unless any provision of 16-2R-1
et seq
. of this code is judicially determined to be unconstitutional.
2023 West Virginia Code › Chapter 33. Insurance › Article 43. Insurance Tax Procedures Act › §33-43-2. Application

(a) The provisions of this article applies to all taxes, surcharges, assessments, penalties and fees, however denominated, which are remitted to the commissioner.
(b) This article supersedes any provisions in this code which concern the matters addressed in this article, but only to the extent that those other provisions are inconsistent with this article.
2023 West Virginia Code › Chapter 33. Insurance › Article 43. Insurance Tax Procedures Act › §33-43-3. Definitions

For the purposes of this article and where not otherwise defined in this chapter:
(a) "Assessment" means a written notice by the commissioner of an amount due by a taxpayer for payment of any tax, fee, penalty or related charge administered under this article.
(b) "Days" means calendar days.
(c) "Filing date" for a return means the date prescribed by the Legislature for the filing of a return, or if no date is prescribed, the payment date for the tax which is the subject of the return.
(d) "Final decision" means a decision for which the availability of an appeal has been exhausted, either because the time for filing a petition has elapsed or because the petition has been denied.
(e) "Payment date" for a tax means the date prescribed by the Legislature for the payment of the tax, or if no date is prescribed, on March 1 next following the end of the taxable year for the tax.
(f) "Related charges" includes fees, and additions and interest called for by this article.
(g) "Surcharge" means a tax payable by a policyholder but collected and remitted to the commissioner by the insurer.
(h) "Tax" means any tax to which this article applies.
(i) "Taxable premium" means the amount of the gross direct premiums, annuity considerations or dividends on participating policies applied in reduction of premiums less premiums returned to policyholders due to cancellation of policies.
(j) "Taxpayer" includes any legal entity which is liable for the remittance of a tax to the commissioner in a particular taxable year, and any legal entity that is required to file a return under this article.
2023 West Virginia Code › Chapter 33. Insurance › Article 43. Insurance Tax Procedures Act › §33-43-4. Powers of the Commissioner

(a) All powers granted to the commissioner by this article are in addition to those powers granted to the commissioner elsewhere in this code, and no provision of this article may be construed to eliminate or diminish the other powers.
(b) The commissioner may prescribe any forms as he or she considers necessary for the fair, uniform and efficient administration of taxes. All forms now used by the commissioner shall be prescribed until the commissioner requires otherwise.
(c) The commissioner may propose rules for legislation approval in accordance with the provisions of article three, chapter twenty-nine-a of this code which he or she considers necessary for the fair, uniform and efficient administration of taxes. All currently existing rules remain in effect until amended or repealed.
(d) For the purpose of ascertaining the application of this article to a taxpayer, the commissioner may:
(1) Examine any books, papers, records, memoranda or property of the taxpayer, legal entity, or any other person which may be relevant in determining its tax liability, compliance or taxpayer status;
(2) Require the attendance for the purpose of giving testimony of the taxpayer or legal entity, or of an employee, officer or agent of the taxpayer or legal entity who reasonably is believed to possess knowledge which may be relevant in determining its tax liability, compliance or taxpayer status;
(3) Exercise any of the powers conferred by sections four through eight of article two of this chapter.
(e) If the commissioner determines, after notice and hearing, that a person has failed or refused to comply with the provisions of this article, or of any legislative rule proposed by the commissioner and approved by the Legislature pursuant to this article, the commissioner may order that the person comply with the provisions and that the person take any other steps as are reasonably necessary to allow the provisions to be enforced. If the person holds a license issued by the commissioner, the commissioner may revoke that license upon the person's failure or refusal to obey an order issued under this subsection or in the commissioner's discretion may in the alternative assess a penalty against the person in an amount up to $5,000 per occurrence.
(f) The commissioner has exclusive authority to bring or join suit in a court of competent jurisdiction, or to pursue any other action allowed by law, to enforce the provisions of this article, or of legislative rules proposed pursuant to this article and approved by the Legislature, or to enforce any order, subpoena or other directive issued by the commissioner pursuant to this article to best promote the fair, uniform and efficient administration of taxes.
2023 West Virginia Code › Chapter 33. Insurance › Article 43. Insurance Tax Procedures Act › §33-43-5. Limitation on Actions

The commissioner has exclusive authority to bring or join suit in a court of competent jurisdiction, or pursue any other action allowed by law, to obtain the payment of taxes and related charges: Provided, That the commissioner must so act within ten years following the date upon which the assessment or order establishing the taxpayer's liability becomes final.
2023 West Virginia Code › Chapter 33. Insurance › Article 43. Insurance Tax Procedures Act › §33-43-7. Penalties

(a) If any taxpayer fails to file a return by the applicable filing date, then for each day throughout which the taxpayer fails to file, the taxpayer is liable for a civil penalty of $25: Provided, That the Commissioner may waive or reduce this penalty if the Commissioner determines that the failure to timely file was caused by excusable neglect.
(b) If a taxpayer fails to pay a tax liability in full by the applicable payment date, then for each day throughout which a portion of the liability remains unpaid, the taxpayer is liable for a civil penalty in an amount equal to one percent of the unpaid portion: Provided, That the sum of the penalties imposed under this subsection may not exceed one hundred percent of the tax liability: Provided, however, That this penalty may be waived or reduced if the taxpayer establishes, to the satisfaction of the Commissioner, that the failure upon which the penalty is based was not, in whole or in part, willful or due to the neglect of the taxpayer.
(c) The assessment of a penalty under this section is automatic unless a waiver or reduction of the penalty is agreed to by the Commissioner in writing.
2023 West Virginia Code › Chapter 33. Insurance › Article 43. Insurance Tax Procedures Act › §33-43-8. Assessments

(a) The commissioner may issue assessments for tax liabilities and related charges, or any portions thereof, which are due and payable but unpaid. At any time before an assessment becomes final, the commissioner may amend the assessment, in whole or in part. Except as otherwise provided in this article, an assessment which is amended by the commissioner shall be regarded as a new assessment.
(b) The commissioner shall give the taxpayer notice of every assessment or amendment thereto. The date upon which the notice is sent to the taxpayer shall be regarded as the date upon which the assessment is issued.
(c) The notice of assessment shall specify the amount of each tax liability or related charge which is the subject of the assessment: Provided, That the notice may list interest and penalties which accrue or are imposed from the time that the assessment is issued to the time that the assessment is paid.
(d) Notwithstanding any other provisions of this article, assessments may be issued only within the following time periods:
(1) For tax liabilities, if the taxpayer has filed a return for the tax and taxable year at issue, within three years of the filing date for the return or the date upon which the return actually was filed, whichever comes later;
(2) For fees, within three years of the date prescribed for payment of the fee;
(3) For penalties based upon a failure to pay a tax, at any time.
(e) The commissioner shall, within ninety days of a written request by a taxpayer, issue an assessment: Provided, That the commissioner may refuse to issue an assessment until the taxpayer has provided the commissioner with all information necessary to determine or verify the taxpayer's outstanding liabilities for taxes and related charges.
(f) If the taxpayer does not timely request a hearing on an assessment pursuant to section nine of this article, the assessment shall become final. A final assessment is conclusive of the liability of the taxpayer and is not subject to either administrative or judicial review.
2023 West Virginia Code › Chapter 33. Insurance › Article 43. Insurance Tax Procedures Act › §33-43-9. Hearing and Appeal; Judicial Review

(a) Within sixty days of the issuance of an assessment or imposition of a penalty, a taxpayer may request a hearing before the commissioner on the amount or validity of the assessment or penalty. Except as otherwise provided in this article or in legislative rules proposed and approved by the Legislature thereto, the hearings are subject to the requirements established in sections thirteen and fourteen, article two of this chapter.
(b) A request for a hearing shall be in writing and shall set forth with reasonable particularity the taxpayer's objections to the assessment or penalty and the factual basis therefore. At any time prior to the hearing, the commissioner may allow a taxpayer to amend the request.
(c) The taxpayer's request shall be executed by the taxpayer in a manner prescribed by the commissioner, and a request so executed shall constitute a sworn statement by the signatory that to the best of his or her knowledge and belief, the information provided in the request is true and accurate.
(d) Assessments issued by the commissioner shall be presumed correct, and the taxpayer shall bear the burden of proving, by a preponderance of the evidence, that the assessment is incorrect or contrary to law.
(e) If the taxpayer does not timely appeal the commissioner's order, that order shall become final as of the expiration of the period during which the taxpayer may have brought an appeal. Upon becoming final, an order shall be conclusive of the liability of the taxpayer and is not subject to either administrative or judicial review.
(f) An agreed order signed by the taxpayer and the commissioner is final and shall constitute a waiver of the taxpayer's right to a hearing or appeal under this chapter.
2023 West Virginia Code › Chapter 33. Insurance › Article 43. Insurance Tax Procedures Act › §33-43-10. Refunds and Credits

(a) This section is the sole method of receiving a refund or credit for any tax or related charge administered under this article.
(b) Any taxpayer claiming to be due a refund or credit for overpayment of any tax or related charge administered under this article may, within five years from the date of the filing of the return under which the tax was imposed or within four years from the date the tax was paid, whichever term expires later, file with the commissioner a petition in writing requesting a refund of the tax or any part thereof:
(1) If the petition and the proofs filed in support thereof persuades the commissioner that the payment of the tax or related charges or any part thereof was improperly required, he or she shall refund or issue a credit to the taxpayer for the improper amounts;
(2) If the commissioner is in doubt as to whether or not the taxes or related charges were proper, or if the commissioner is of the opinion that the payment of the tax collected, or any part thereof was proper, then the commissioner shall within thirty days hold a hearing to determine the issue;
(3) If a taxpayer is considered to be due a credit or refund, the commissioner shall, if the amount exceeds $1,000, at his or her discretion, pay the amount in equal, annual installments over not more than three years. The commissioner may issue a credit against future taxes in lieu of a refund payment, whether lump sum or installment;
(4) The payment of refunds or issuance of credits to a taxpayer pursuant to this section shall constitute a complete and final settlement of all of the taxpayer's claims for which the refunds or credits are paid. No cause of action or liability, whether for damages, attorney's fees, costs or of any other nature, shall arise against the commissioner or against his or her agents for administering or litigating the Constitutionality of a tax subsequently determined to be unconstitutional.
2023 West Virginia Code › Chapter 33. Insurance › Article 43. Insurance Tax Procedures Act › §33-43-12. Allocation of Payments

(a) Payments made by a taxpayer, other than installment payments of a tax liability which is required to be paid in installments, shall be allocated to the taxpayer's outstanding liabilities as follows:
(1) First, to any assessment which has become final;
(2) Next, to any fee which has not yet been assessed;
(3) Next, to any tax or related charge which has not yet been assessed;
(4) Finally, to any assessment which has not yet become final.
2023 West Virginia Code › Chapter 33. Insurance › Article 43. Insurance Tax Procedures Act › §33-43-13. Overpayments and Underpayments

(a) Upon discovering that a taxpayer has made payments in excess of the taxpayer's outstanding liabilities, the commissioner shall give notice of the overpayment to the taxpayer.
(b) Payments by a taxpayer in excess of the amounts required to satisfy the taxpayer's liabilities for taxes and related charges shall give rise to a credit against the taxpayer's future liabilities unless the taxpayer, within thirty days of receiving the notice, either requests a refund under this article and is granted the refund, or establishes to the satisfaction of the commissioner that no future liabilities will be incurred by the taxpayer.
(c) Upon discovering that a taxpayer has made payments less than the taxpayer's outstanding liabilities, or that the taxpayer has made no payments, the commissioner shall give notice of the underpayment to the taxpayer, which notice will be considered an assessment of the amount due.
2023 West Virginia Code › Chapter 33. Insurance › Article 43. Insurance Tax Procedures Act › §33-43-14. Retroactive Monetary Relief for Unconstitutional Taxes

(a) The remedies provided by this article are exclusive and shall be in lieu of any and all remedies provided by common law or by other provisions of this code.
(b) Retroactive monetary relief for an unconstitutional tax shall be granted only at the express order of a court of competent jurisdiction which appears in a final decision of that court. Notwithstanding any other provision of this code, a final decision ordering retroactive monetary relief may not be considered to override any statute of limitations contained within this article, or to require relief for any claim which is res judicata.
(c) Retroactive monetary relief shall comprise only a refund of the unconstitutional tax, or of the portion thereof that the court has ordered refunded, which actually has been paid by the taxpayer, together with any penalties or interest which are based upon the taxpayer's failure to pay the unconstitutional tax and which actually have been paid by the taxpayer.
(1) Except as otherwise provided in this section, retroactive monetary relief shall be paid to the taxpayer in a lump sum within one hundred eighty days of the final decision which orders the relief.
(2) If the amount of retroactive monetary relief due to any individual taxpayer exceeds $1,000 or the aggregate amount of the relief due to all taxpayers exceeds $100,000, the commissioner at his or her discretion may pay all refunds issued pursuant to the final decision in equal, annual installments over not more than three years. For purposes of this subsection, a year shall be a period of twelve calendar months measured from the date upon which the final decision which orders the relief is entered.
(3) With the approval of the taxpayer, the commissioner may issue a credit against future taxes in lieu of a refund payment due pursuant to this section, whether lump sum or installment.
(d) The payment of refunds or issuance of credits to a taxpayer pursuant to this section shall constitute a complete and final settlement of all of the taxpayer's claims which are based upon the unconstitutional tax for which the refunds are paid or the credits issued. No cause of action or liability, whether for damages, attorney's fees, costs or of any other nature, shall arise against the commissioner or against his or her agents for administering or litigating the Constitutionality of a tax subsequently determined to be unconstitutional.
2023 West Virginia Code › Chapter 33. Insurance › Article 43. Insurance Tax Procedures Act › §33-43-15. Taxes Collected on Behalf of the Commissioner

When a person is required to collect a tax or surcharge from another and remit the amount thus collected to the commissioner, the moneys collected are considered to be held by that person in trust for the State of West Virginia. With respect to the filing of returns, assessments and interest, taxes that are collected by a person to be remitted to the commissioner are treated as would a tax paid directly by that person to the commissioner. The person collecting the tax shall return to the policyholder or person paying the tax or surcharge any refund made for overpayment of the amount collected.
2023 West Virginia Code › Chapter 33. Insurance › Article 44. Unauthorized Insurers Act › §33-44-2. Purpose of Enactment of Provisions Regarding Unauthorized Insurers

The purpose of this article is to subject certain persons and insurers to the jurisdiction of the commissioner and to the courts of this state in suits by or on behalf of the state. The Legislature declares that it is concerned with the protection of residents of this state against unscrupulous acts by insurers not authorized to transact an insurance business in this state. It is the intent of the Legislature to maintain fair and honest insurance markets, to protect authorized insurers which are subject to regulation from unfair competition by unauthorized insurers, and to protect against the evasion of the insurance regulatory laws of this state. The Legislature declares that it is a subject of concern that certain insurers, while not licensed to transact insurance in this state, are soliciting the sale of insurance and selling insurance to residents of this state, thus presenting the Insurance Commissioner with the problem of resorting to courts of foreign jurisdictions for the purpose of enforcing the insurance laws of this state for the protection of our citizens. The Legislature declares that it is also a subject of concern that many residents of this state hold policies of insurance issued or delivered in this state by insurers not licensed to transact insurance in this state, thus presenting to the residents the often insurmountable obstacle of resorting to distant fora for the purpose of asserting legal rights under these policies. In furtherance of the state interest, the Legislature herein provides a method of substituted service of process upon the insurers and declares that in so doing it exercises its powers to protect its residents and to define, for the purpose of this article, what constitutes transacting insurance in this state.
2023 West Virginia Code › Chapter 33. Insurance › Article 44. Unauthorized Insurers Act › §33-44-4. Unlawful Transaction of Insurance

(a) It is unlawful for any person to engage in any act which constitutes the transaction of insurance under the provisions of this article unless authorized by a license in force pursuant to the laws of this state, or unless exempted by the insurance laws of this state. Any person or insurer engaged in any act which constitutes the unauthorized transaction of insurance shall be subject to the provisions contained in chapter thirty-three of the code and the provisions and penalties set forth in this article.
(b) It is unlawful for any person to, directly or indirectly, represent, aid, counsel, opine, administer, assist in any manner or capacity or otherwise act as an agent for or on behalf of an unauthorized insurer in the unauthorized transaction of insurance. Any person who represents, aids or assists, in any manner or capacity, an unauthorized insurer in violation of this article shall be subject to the provisions and penalties set forth in this article.
(c) An unauthorized insurer shall be bound by the terms of the insurance contract, certificate or agreement as if the contract, certificate or agreement were legally procured under the insurance laws of this state.
(d) This article does not apply to: (i) Any transaction for which a license is not required pursuant to section one, article three of this chapter, including the lawful transaction of surplus lines insurance and reinsurance by insurers; (ii) transactions in this state relative to a policy issued or to be issued outside this state involving insurance on cargo vessels, their craft or hulls, their cargoes, marine builder's risk, commercial marine protection and indemnity or other risk, including strikes and war risks commonly insured under ocean marine forms of policy; (iii) transactions in this state involving group life insurance, group accident and sickness insurance or group annuities providing coverage under policies that are recognized under articles fourteen and sixteen, respectively, of this chapter where: (1) The master policy of such groups was lawfully issued and delivered in and pursuant to the laws of a state in which the insurer was authorized to do an insurance business, to a group organized for purposes other than the procurement of insurance, and where the policyholder is domiciled or otherwise has a bona fide situs; and (2) except for group annuities, the insurer complies with section thirty-five, article six of this chapter. The commissioner may require the insurer which has issued such master policy to submit such information as the commissioner requires in order to determine if probable cause exists to convene a hearing to determine whether the total charges for the insurance to the persons insured are reasonable in relation to the benefits provided under such policy.
2023 West Virginia Code › Chapter 33. Insurance › Article 44. Unauthorized Insurers Act › §33-44-6. Injunctive Relief

(a) Whenever the commissioner believes, from evidence satisfactory to him or her, that any insurer is violating or is about to violate the provisions of this article, in addition to the administrative remedies available in this article, the commissioner may cause a complaint to be filed in any appropriate circuit court of this state seeking to enjoin and restrain the insurer from continuing the violation or engaging therein or doing any act in furtherance thereof.
(b) The circuit court shall have jurisdiction of the proceeding and have the power to make and enter an order or judgment awarding preliminary or final injunctive relief as in its judgment is proper. The commissioner may elect to file a complaint in any circuit where transactions have occurred or in the circuit court of Kanawha County.
2023 West Virginia Code › Chapter 33. Insurance › Article 44. Unauthorized Insurers Act › §33-44-7. Administrative Relief

(a) Any person engaged in any act which constitutes the unauthorized transaction of insurance as set forth in this article may, after notice and hearing pursuant to section thirteen, article two of this chapter, be fined by the commissioner a sum not to exceed $20,000 for each unauthorized act or transaction of unauthorized insurance.
(b) Any person engaged in any act which constitutes the unauthorized transaction of insurance as set forth in this article may be assessed restitution by the Insurance Commissioner in an amount sufficient to reimburse any and all insureds for the unpaid claims, if, after notice and hearing pursuant to section thirteen, article two of this chapter, the commissioner finds that the unauthorized insurer has failed to pay claims of its insureds in accordance with the terms of the contracts.
2023 West Virginia Code › Chapter 33. Insurance › Article 44. Unauthorized Insurers Act › §33-44-8. Civil Relief

(a) No insurance contract entered into in violation of this article shall preclude the insured from enforcing his or her rights under the contract in accordance with the terms and provisions of the contract and the laws of this state against any unauthorized insurer or any person assisting the unauthorized insurer to the same degree those rights would have been enforceable had the contract been lawfully procured.
(b) No insurance contract entered into in violation of this article shall preclude a provider of health care services from enforcing the rights of the insured under the contract in accordance with the terms and provisions of the contract and the laws of this state against any unauthorized insurer or any person assisting the unauthorized insurer pursuant to an assignment of rights executed between the insured and the health care provider.
(c) In an action against an unauthorized insurer upon a contract of insurance issued or delivered to a resident of this state or to a corporation authorized to do business in this state, if the trier of fact finds by a preponderance of the evidence that the unauthorized insurer has failed to make payment in accordance with the terms of the contract, the trier of fact shall award to the insured or the health care provider:
(1) Contract damages in accordance with the terms and provisions of the contract and the laws of this state to the same degree those rights would have been enforceable had the contract been lawfully procured;
(2) Simple interest at a rate of prime plus one percent on the total amount awarded as restitution, accruing from the date payment was due;
(3) If in addition to a finding that the unauthorized insurer has failed to make payment in accordance with the terms of the contract, the trier of fact finds by a preponderance of the evidence that failure to make payment was without reasonable cause, the trier of fact shall award the plaintiff a reasonable attorney fee and include the fee in any judgment that may be rendered in the action. The fee shall not exceed thirty-three percent of the amount that the trier of fact finds the plaintiff is entitled to recover against the unauthorized insurer;
(4) If in addition to a finding that the unauthorized insurer has failed to make payment in accordance with the terms of the contract, the trier of fact further finds that failure to make payment was willful, wanton and malicious, the trier of fact may award the plaintiff punitive damages in an amount that the trier of fact finds the plaintiff is entitled to recover against the insurer.
2023 West Virginia Code › Chapter 33. Insurance › Article 44. Unauthorized Insurers Act › §33-44-9. Criminal Penalties

Any unauthorized insurer who violates the provisions of this article is guilty of a felony and, upon conviction thereof, may be fined not more than $20,000 per each unauthorized act or transaction of unauthorized insurance or confined in the state correctional facility not less than one nor more than five years, or both fined and imprisoned.
2023 West Virginia Code › Chapter 33. Insurance › Article 44. Unauthorized Insurers Act › §33-44-10. Defense of Action or Proceeding by Unauthorized Insurer; Bond Requirements

(a) Before any unauthorized insurer shall file or cause to be filed any pleading in any action, suit or proceeding instituted against it, or any notice, order, pleading or process in an administrative proceeding before the commissioner instituted against the insurer, the unauthorized insurer shall either:
(1) Deposit with the clerk of the court in which the action, suit or proceeding is pending, or with the commissioner in an administrative proceeding, cash or securities or file with the clerk or the commissioner a bond with good and sufficient sureties, to be approved by the court or the commissioner, in an amount to be fixed by the court or commissioner sufficient to secure the payment of any final judgment which may be rendered in the action or administrative proceeding; or
(2) Deposit with the clerk of the court in which the action, suit or proceeding is pending, or with the commissioner in an administrative proceeding, cash or securities or file with the clerk or the commissioner a bond with good and sufficient sureties, to be approved by the court or the commissioner, in an amount required to procure a license to transact insurance in this state pursuant to the provisions contained within article three of this chapter.
(b) The court or the commissioner in any action, suit or proceeding in which service is made in the manner provided in subsection (d) or (e), section five of this article, may, in its, his or her respective discretion, order the postponement as may be necessary to afford the responding party reasonable opportunity to comply with the provisions of subsection (a) of this section and thereafter to defend the action or proceeding.
2023 West Virginia Code › Chapter 33. Insurance › Article 44. Unauthorized Insurers Act › §33-44-11. Person Providing Specified Coverage; Proof of Regulation by a Federal Government Agency

(a) Any person who transacts insurance, transacts an insurance business or provides insurance coverage in this state for the cost of:
(1) Medical care;
(2) Surgery;
(3) Chiropractic;
(4) Physical therapy;
(5) Speech pathology;
(6) Audiology;
(7) Professional care of mental health;
(8) Dental care;
(9) Hospital care; or
(10) Ophthalmic care, whether the coverage provides for direct payment, reimbursement or any other method of payment, is subject to regulation by the commissioner and to the provisions of this code unless he or she shows that while transacting insurance, or transacting an insurance business or providing the coverage he or she is subject to regulation by an agency of the federal government.
(b) A person may show that he or she is subject to regulation by an agency of the federal government by providing the commissioner with an advisory opinion issued pursuant to ERISA Procedure 76-1, 41 Federal Register 36281 (Aug. 27, 1976).
2023 West Virginia Code › Chapter 33. Insurance › Article 44. Unauthorized Insurers Act › §33-44-12. Collection, Maintenance and Distribution of Restitution to Insureds

All restitution ordered by the commissioner pursuant to the authority set forth in section seven of this article and received from unauthorized insurers shall be collected by the commissioner and distributed to the affected insureds on a pro rata basis. The commissioner shall maintain a record reflecting the names of each of the insureds for which the restitution was ordered, the total amount of the unpaid claims for each of the insureds to which the restitution will be paid and the actual amount of restitution to be paid to the insured. The commissioner shall likewise maintain an account into which restitution received shall be placed until it is distributed to the affected insureds.
2023 West Virginia Code › Chapter 33. Insurance › Article 44. Unauthorized Insurers Act › §33-44-13. Enforcement of Foreign Decrees

(a) The commissioner may proceed in the courts of this state, any reciprocal state or any other state to enforce an order or decision in any court proceeding or in any administrative proceeding before the commissioner.
(b) The commissioner shall determine which states and territories qualify as reciprocal states.
(c) A certified copy of any foreign decree may be filed in the office of the clerk of any circuit court of this state. The clerk of the circuit court, upon verifying with the commissioner that the decree or order qualified as a foreign decree, shall treat the foreign decree in the same manner as a decree of a circuit court of this state. A foreign decree, so filed, has the same effect and is considered as a decree of a circuit court of this state, and is subject to the same procedures, defenses and proceedings for reopening, vacating or staying a decree of a circuit court of this state and may be enforced or satisfied in like manner.
(d) At the time of the filing of the foreign decree, counsel for the commissioner shall make and file with the clerk of the circuit court an affidavit setting forth the name and last known post office address of the defendant. Promptly upon the filing of the foreign decree and the affidavit, the clerk of the circuit court shall mail notice of the filing of the foreign decree to the defendant at the address given and to the commissioner and shall make a note of the mailing in the docket. In addition, counsel for the commissioner may mail a notice of the filing of the foreign decree to the defendant and to the commissioner and may file proof of mailing with the clerk of the circuit court. Lack of mailing notice of filing by the clerk of the circuit court may not affect the enforcement proceedings if proof of mailing by the counsel for the commissioner has been filed. No execution or other process for enforcement of a foreign decree filing under this section may issue until thirty days after the date the decree is filed.
(e) If the defendant shows the circuit court:
(1) That an appeal from the foreign decree is pending or will be taken, or that a stay of execution has been granted, the court shall stay enforcement of the foreign decree until the appeal is concluded, the time for appeal expires or the stay of execution expires or is vacated upon proof that the defendant has furnished the security for the satisfaction of the decree required by the state in which it was rendered.
(2) Any ground upon which enforcement of a decree of any circuit court of this state would be stayed, the court may stay enforcement of the foreign decree.
(f) Any person filing a foreign decree shall pay to the clerk of the circuit court such fees as are required by law.
2023 West Virginia Code › Chapter 33. Insurance › Article 45. Ethics and Fairness in Insurer Business Practices › §33-45-3. Damages, Attorney Fees and Costs Available to Providers Upon Insurer's Violation of Article or Breach of Contract Provisions

Any provider who suffers loss as the result of an insurer's violation of any provision of this article or an insurer's breach of any provider contract provision required by this article is entitled to initiate an action to recover actual damages. The commissioner shall not be deemed to be a "trier of fact" for purposes of this section.
2023 West Virginia Code › Chapter 33. Insurance › Article 45. Ethics and Fairness in Insurer Business Practices › §33-45-4. Providers Invoking Rights Protected

No insurer or its network, provider panel or intermediary may terminate or fail to renew the employment or other contractual relationship with a provider, or any provider contract, or otherwise penalize any provider, for invoking any of the provider's rights under this article or under the provider contract.
2023 West Virginia Code › Chapter 33. Insurance › Article 45. Ethics and Fairness in Insurer Business Practices › §33-45-8. Exemptions

(a) The provisions of this article do not apply to claims that are not covered under the terms of the health plan.
(b) Nothing in this article shall preclude the right of a provider or insurer to pursue any other administrative, civil or criminal proceedings or remedies permitted under state or federal law.
(c) The provisions of this article do not apply when there is a good faith dispute about the legitimacy of amount of the claim, or when there is a reasonable basis supported by specific information that such claim was submitted fraudulently or with material misrepresentation.
(d) An insurer shall not be considered to be in violation of this article if the insurer's failure to comply is caused in material part by the person submitting the claim or the health insurer's compliance is rendered impossible due to matters beyond the insurer's reasonable control.
(e) A provider shall not be considered to be in violation of this article if the failure to comply is caused in material part by the insured or the provider's compliance is rendered impossible due to matters beyond the provider's reasonable control.
(f) The provisions of this article do not apply to services provided outside the state.
2023 West Virginia Code › Chapter 33. Insurance › Article 46. Third-Party Administrator Act › §33-46-3. Written Agreement Necessary

(a) No administrator may act as such without a written agreement between the administrator and the insurer and the written agreement shall be retained as part of the official records of both the insurer and the administrator for the duration of the agreement and for ten years thereafter. The agreement shall contain all provisions required by this statute, except insofar as those requirements do not apply to the functions performed by the administrator.
(b) The written agreement shall include a statement of duties that the administrator is expected to perform on behalf of the insurer and the lines, classes or types of insurance which the administrator is to be authorized to administer. The agreement shall make provision with respect to underwriting or other standards pertaining to the business underwritten by the insurer.
(c) The insurer or administrator may, with written notice, terminate the written agreement for cause as provided in the agreement. The insurer may suspend the underwriting authority of the administrator during the pendency of any dispute regarding the cause for termination of the written agreement. The insurer shall fulfill any lawful obligations with respect to policies affected by the written agreement, regardless of any dispute between the insurer and the administrator.
2023 West Virginia Code › Chapter 33. Insurance › Article 46. Third-Party Administrator Act › §33-46-4. Payment to Administrator

If an insurer uses the services of an administrator, the payment to the administrator of any premiums or charges for insurance by or on behalf of the insured party shall be considered to have been received by the insurer and the payment of return premiums or claim payments forwarded by the insurer to the administrator shall not be considered to have been paid to the insured party or claimant until the payments are received by the insured party or claimant. Nothing in this section limits any right of the insurer against the administrator resulting from the failure of the administrator to make payments to the insurer, insured parties or claimants.
2023 West Virginia Code › Chapter 33. Insurance › Article 46. Third-Party Administrator Act › §33-46-7. Responsibilities of the Insurer

(a) If an insurer uses the services of an administrator, the insurer is responsible for determining the benefits, premium rates, underwriting criteria and claims payment procedures applicable to the coverage and for securing reinsurance, if any. The rules pertaining to these matters shall be provided, in writing, by the insurer to the administrator. The responsibilities of the administrator as to any of these matters shall be set forth in the written agreement between the administrator and the insurer.
(b) It is the sole responsibility of the insurer to provide for competent administration of its programs.
(c) In cases where an administrator administers benefits for more than one hundred certificate holders on behalf of an insurer, the insurer shall, at least semiannually, conduct a review of the operations of the administrator. At least one review shall be an on-site audit of the operations of the administrator.
(d) For purposes of this section, "insurer" means a licensed insurance company, prepaid hospital or medical care plan, health maintenance organization or a health care corporation.
2023 West Virginia Code › Chapter 33. Insurance › Article 46. Third-Party Administrator Act › §33-46-8. Premium Collection and Payment of Claims

(a) All insurance charges or premiums collected by an administrator on behalf of or for an insurer, and the return of premiums received from that insurer, shall be held by the administrator in a fiduciary capacity. The funds shall be immediately remitted to the person entitled to them or shall be deposited promptly in a fiduciary account established and maintained by the administrator in a federally or state-insured financial institution. The written agreement between the administrator and the insurer shall provide for the administrator to periodically render an accounting to the insurer detailing all transactions performed by the administrator pertaining to the business underwritten by the insurer.
(b) If charges or premiums deposited in a fiduciary account have been collected on behalf of or for one or more insurers, the administrator shall keep records clearly recording the deposits in and withdrawals from the account on behalf of each insurer. The administrator shall keep copies of all the records and, upon request of an insurer, shall furnish the insurer with copies of the records pertaining to the deposits and withdrawals.
(c) The administrator shall not pay any claim by withdrawals from a fiduciary account in which premiums or charges are deposited. Withdrawals from the account shall be made as provided in the written agreement between the administrator and the insurer. The written agreement shall address, but not be limited to, the following:
(1) Remittance to an insurer entitled to remittance;
(2) Deposit in an account maintained in the name of the insurer;
(3) Transfer to and deposit in a claims-paying account, with claims to be paid as provided for in subsection (d) of this section;
(4) Payment to a group policyholder for remittance to the insurer entitled to the remittance;
(5) Payment to the administrator of its commissions, fees or charges; and
(6) Remittance of return premium to the person or persons entitled to the return premium.
(d) All claims paid by the administrator from funds collected on behalf of or for an insurer shall be paid only on drafts or checks of and as authorized by the insurer.