SB 97

CHAPTER 51  1
  CHAPTER 51
  ( SB 97 )
      AN ACT relating to coverage for prostheses and orthoses.
Be it enacted by the General Assembly of the Commonwealth of Kentucky:
     SECTION 1. A NEW SECTION OF SUBTITLE 17A OF KRS CHAPTER 304 IS CREATED TO READ
AS FOLLOWS:
(1)   As used in this section, "health benefit plan" has the same meaning as in KRS 304.17A-005, except for
      purposes of this section, the term includes student health insurance offered by a Kentucky-licensed insurer
      under written contract with a university or college whose students it proposes to insure.
(2)   All health benefit plans shall provide coverage for prostheses and orthoses.
(3)   The coverage required under this section:
      (a)   Shall, at a minimum, be equivalent to the coverage of, and payment for, prostheses and orthoses
  provided for the aged and disabled under the following, as amended:
  1.     42 U.S.C. sec. 1395k;
  2.     42 U.S.C. sec. 1395l;
  3.     42 U.S.C. sec. 1395m;
  4.     42 C.F.R. sec. 410.100;
  5.     42 C.F.R. sec. 414.202;
  6.     42 C.F.R. sec. 414.210; and
  7.     42 C.F.R. sec. 414.228;
      (b)   To the extent not covered under paragraph (a) of this subsection, shall include:
  1.     Subject to paragraph (e) of this subsection, coverage for any one (1) or more prostheses and
  orthoses prescribed by an insured's health care provider and determined by a licensed
  prosthetist or orthotist to be the most appropriate model or models that adequately meet the
  medical needs of the insured for purposes of each of the following:
  a.     Completing activities of daily living;
  b.     Completing essential job-related activities;
  c.     Performing physical activities, including but not limited to running, biking, swimming,
  and strength training;
  d.     Maximizing the insured's whole-body health, including lower and upper limb function;
  or
  e.     Showering and bathing;
  2.     For any prosthesis or orthosis covered under this section, coverage for:
  a.     All materials and components necessary to use the prosthesis or orthosis;
  b.     Instruction to the insured on using the prosthesis or orthosis; and
  c.     The repair of the prosthesis or orthosis or any of its parts; and
  3.     a.     Subject to subdivision b. of this subparagraph, coverage for the replacement of a
  prosthesis or orthosis, or any of its parts, covered under this section without regard to
  continuous use or useful lifetime restrictions, if the prescribing health care professional
  determines that a replacement or part is necessary because of any of the following:
  i.     A change in the physiological condition of the patient;
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  ii.    An irreparable change in the condition of the prosthesis or orthosis or any of its
  parts; or
  iii.   The cost to repair the device or part would be more than sixty percent (60%) of
  the cost of a replacement device or of the part being replaced.
  b.        If a prosthesis or orthosis that is less than three (3) years old is being replaced, the
  insurer offering or providing the health benefit plan may require confirmation of the
  need for a replacement from the ordering health care professional;
  (c)    Shall not be subject to cost-sharing requirements that are applicable only with respect to the
  coverage required under this section;
  (d)    May be subject to cost-sharing requirements if the requirements are not more restrictive than
  the cost-sharing requirements for inpatient physician and surgical services;
  (e)    May be subject to a limit of three (3) prostheses and orthoses per affected limb within a three
  (3) year period; and
  (f)    Shall be considered habilitative or rehabilitative services and devices for purposes of any
  federal requirements to provide coverage for essential health benefits.
(4)   (a)   With respect to the coverage required under this section, a utilization review decision rendered by an
  insurer or its private review agent shall:
  1.     Be made in a nondiscriminatory manner; and
  2.     Not deny coverage solely on the basis of the insured's actual or perceived disability.
      (b)   An insurer or its private review agent shall provide a description of the insured's rights under
  paragraph (a) of this subsection in:
  1.     The health benefit plan's evidence of coverage; and
  2.     Any denial letter relating to the coverage required under this section.
(5)   If an insurer or its private review agent denies the coverage required under this section based on medical
      necessity, the insurer or agent shall provide a denial letter to the insured and the provider that:
      (a)   Is in writing;
      (b)   Explains why the claim does not meet medical necessity standards; and
      (c)   Complies with any other applicable state and federal laws.
(6)   (a)   An insurer or administrator that utilizes a network to provide prostheses and orthoses under a health
  benefit plan shall ensure that the network is reasonably adequate and accessible with respect to the
  provision of prostheses and orthoses required to be covered under this section.
      (b)   A reasonably adequate network, with respect to the provision of prostheses and orthoses that are
  required to be covered under this section, shall, at a minimum, offer an adequate number of
  accessible prosthetists or orthotists in accordance with the requirements set forth for managed care
  plans in KRS 304.17A-515.
(7)   (a)   By June 1 of each year, each insurer that offers or provides a health benefit plan shall submit a
  report to the commissioner detailing the insurer's experience with providing the coverage required
  under this section.
      (b)   The report required under paragraph (a) of this subsection shall:
  1.     Be in a form prescribed by the commissioner in an administrative regulation promulgated in
  accordance with KRS Chapter 13A; and
  2.     With respect to the coverage required under this section, include the following for the
  preceding plan year:
  a.        The number of claims received; and
  b.        The number of claims paid.
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      (c)   By October 1 of each year, the commissioner shall submit a report to the Legislative Research
  Commission, for referral to the Interim Joint Committee on Banking and Insurance, that provides
  the aggregated data of the reports submitted under paragraph (b) of this subsection by plan year.
      Section 2. KRS 164.2871 is amended to read as follows:
(1)   The governing board of each state postsecondary educational institution is authorized to purchase liability
      insurance for the protection of the individual members of the governing board, faculty, and staff of such
      institutions from liability for acts and omissions committed in the course and scope of the individual's
      employment or service. Each institution may purchase the type and amount of liability coverage deemed to
      best serve the interest of such institution.
(2)   All retirement annuity allowances accrued or accruing to any employee of a state postsecondary educational
      institution through a retirement program sponsored by the state postsecondary educational institution are
      hereby exempt from any state, county, or municipal tax, and shall not be subject to execution, attachment,
      garnishment, or any other process whatsoever, nor shall any assignment thereof be enforceable in any court.
      Except retirement benefits accrued or accruing to any employee of a state postsecondary educational
      institution through a retirement program sponsored by the state postsecondary educational institution on or
      after January 1, 1998, shall be subject to the tax imposed by KRS 141.020, to the extent provided in KRS
      141.010 and 141.0215.
(3)   Except as provided in KRS Chapter 44, the purchase of liability insurance for members of governing boards,
      faculty and staff of institutions of higher education in this state shall not be construed to be a waiver of
      sovereign immunity or any other immunity or privilege.
(4)   The governing board of each state postsecondary education institution is authorized to provide a self-insured
      employer group health plan to its employees, which plan shall:
      (a)   Conform to the requirements of Subtitle 32 of KRS Chapter 304; and
      (b)   Except as provided in subsection (5) of this section, be exempt from conformity with Subtitle 17A of
  KRS Chapter 304.
(5)   A self-insured employer group health plan provided by the governing board of a state postsecondary education
      institution to its employees shall comply with:
      (a)   KRS 304.17A-129;
      (b)   KRS 304.17A-133;
      (c)   KRS 304.17A-145;
      (d)   KRS 304.17A-163 and 304.17A-1631;
      (e)   KRS 304.17A-261;
      (f)   KRS 304.17A-262;
      (g)   KRS 304.17A-264;[ and]
      (h)   KRS 304.17A-265; and
      (i)   Section 1 of this Act.
(6)   (a)   A self-insured employer group health plan provided by the governing board of a state postsecondary
  education institution to its employees shall provide a special enrollment period to pregnant women who
  are eligible for coverage in accordance with the requirements set forth in KRS 304.17-182.
      (b)   The governing board of a state postsecondary education institution shall, at or before the time an
  employee is initially offered the opportunity to enroll in the plan or coverage, provide the employee a
  notice of the special enrollment rights under this subsection.
      Section 3. KRS 18A.225 is amended to read as follows:
(1)   (a)   The term "employee" for purposes of this section means:
  1.     Any person, including an elected public official, who is regularly employed by any department,
  office, board, agency, or branch of state government; or by a public postsecondary educational
  institution; or by any city, urban-county, charter county, county, or consolidated local
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  government, whose legislative body has opted to participate in the state-sponsored health
  insurance program pursuant to KRS 79.080; and who is either a contributing member to any one
  (1) of the retirement systems administered by the state, including but not limited to the Kentucky
  Retirement Systems, County Employees Retirement System, Kentucky Teachers' Retirement
  System, the Legislators' Retirement Plan, or the Judicial Retirement Plan; or is receiving a
  contractual contribution from the state toward a retirement plan; or, in the case of a public
  postsecondary education institution, is an individual participating in an optional retirement plan
  authorized by KRS 161.567; or is eligible to participate in a retirement plan established by an
  employer who ceases participating in the Kentucky Employees Retirement System pursuant to
  KRS 61.522 whose employees participated in the health insurance plans administered by the
  Personnel Cabinet prior to the employer's effective cessation date in the Kentucky Employees
  Retirement System;
  2.    Any certified or classified employee of a local board of education or a public charter school as
  defined in KRS 160.1590;
  3.    Any elected member of a local board of education;
  4.    Any person who is a present or future recipient of a retirement allowance from the Kentucky
  Retirement Systems, County Employees Retirement System, Kentucky Teachers' Retirement
  System, the Legislators' Retirement Plan, the Judicial Retirement Plan, or the Kentucky
  Community and Technical College System's optional retirement plan authorized by KRS
  161.567, except that a person who is receiving a retirement allowance and who is age sixty-five
  (65) or older shall not be included, with the exception of persons covered under KRS
  61.702(2)(b)3. and 78.5536(2)(b)3., unless he or she is actively employed pursuant to
  subparagraph 1. of this paragraph; and
  5.    Any eligible dependents and beneficiaries of participating employees and retirees who are
  entitled to participate in the state-sponsored health insurance program;
      (b)   The term "health benefit plan" for the purposes of this section means a health benefit plan as defined in
  KRS 304.17A-005;
      (c)   The term "insurer" for the purposes of this section means an insurer as defined in KRS 304.17A-005;
  and
      (d)   The term "managed care plan" for the purposes of this section means a managed care plan as defined in
  KRS 304.17A-500.
(2)   (a)   The secretary of the Finance and Administration Cabinet, upon the recommendation of the secretary of
  the Personnel Cabinet, shall procure, in compliance with the provisions of KRS 45A.080, 45A.085, and
  45A.090, from one (1) or more insurers authorized to do business in this state, a group health benefit
  plan that may include but not be limited to health maintenance organization (HMO), preferred provider
  organization (PPO), point of service (POS), and exclusive provider organization (EPO) benefit plans
  encompassing all or any class or classes of employees. With the exception of employers governed by
  the provisions of KRS Chapters 16, 18A, and 151B, all employers of any class of employees or former
  employees shall enter into a contract with the Personnel Cabinet prior to including that group in the
  state health insurance group. The contracts shall include but not be limited to designating the entity
  responsible for filing any federal forms, adoption of policies required for proper plan administration,
  acceptance of the contractual provisions with health insurance carriers or third-party administrators, and
  adoption of the payment and reimbursement methods necessary for efficient administration of the health
  insurance program. Health insurance coverage provided to state employees under this section shall, at a
  minimum, contain the same benefits as provided under Kentucky Kare Standard as of January 1, 1994,
  and shall include a mail-order drug option as provided in subsection (13) of this section. All employees
  and other persons for whom the health care coverage is provided or made available shall annually be
  given an option to elect health care coverage through a self-funded plan offered by the Commonwealth
  or, if a self-funded plan is not available, from a list of coverage options determined by the competitive
  bid process under the provisions of KRS 45A.080, 45A.085, and 45A.090 and made available during
  annual open enrollment.
      (b)   The policy or policies shall be approved by the commissioner of insurance and may contain the
  provisions the commissioner of insurance approves, whether or not otherwise permitted by the
  insurance laws.
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      (c)   Any carrier bidding to offer health care coverage to employees shall agree to provide coverage to all
  members of the state group, including active employees and retirees and their eligible covered
  dependents and beneficiaries, within the county or counties specified in its bid. Except as provided in
  subsection (20) of this section, any carrier bidding to offer health care coverage to employees shall also
  agree to rate all employees as a single entity, except for those retirees whose former employers insure
  their active employees outside the state-sponsored health insurance program and as otherwise provided
  in KRS 61.702(2)(b)3.b. and 78.5536(2)(b)3.b.
      (d)   Any carrier bidding to offer health care coverage to employees shall agree to provide enrollment,
  claims, and utilization data to the Commonwealth in a format specified by the Personnel Cabinet with
  the understanding that the data shall be owned by the Commonwealth; to provide data in an electronic
  form and within a time frame specified by the Personnel Cabinet; and to be subject to penalties for
  noncompliance with data reporting requirements as specified by the Personnel Cabinet. The Personnel
  Cabinet shall take strict precautions to protect the confidentiality of each individual employee; however,
  confidentiality assertions shall not relieve a carrier from the requirement of providing stipulated data to
  the Commonwealth.
      (e)   The Personnel Cabinet shall develop the necessary techniques and capabilities for timely analysis of
  data received from carriers and, to the extent possible, provide in the request-for-proposal specifics
  relating to data requirements, electronic reporting, and penalties for noncompliance. The
  Commonwealth shall own the enrollment, claims, and utilization data provided by each carrier and shall
  develop methods to protect the confidentiality of the individual. The Personnel Cabinet shall include in
  the October annual report submitted pursuant to the provisions of KRS 18A.226 to the Governor, the
  General Assembly, and the Chief Justice of the Supreme Court, an analysis of the financial stability of
  the program, which shall include but not be limited to loss ratios, methods of risk adjustment,
  measurements of carrier quality of service, prescription coverage and cost management, and statutorily
  required mandates. If state self-insurance was available as a carrier option, the report also shall provide
  a detailed financial analysis of the self-insurance fund including but not limited to loss ratios, reserves,
  and reinsurance agreements.
      (f)   If any agency participating in the state-sponsored employee health insurance program for its active
  employees terminates participation and there is a state appropriation for the employer's contribution for
  active employees' health insurance coverage, then neither the agency nor the employees shall receive
  the state-funded contribution after termination from the state-sponsored employee health insurance
  program.
      (g)   Any funds in flexible spending accounts that remain after all reimbursements have been processed shall
  be transferred to the credit of the state-sponsored health insurance plan's appropriation account.
      (h)   Each entity participating in the state-sponsored health insurance program shall provide an amount at
  least equal to the state contribution rate for the employer portion of the health insurance premium. For
  any participating entity that used the state payroll system, the employer contribution amount shall be
  equal to but not greater than the state contribution rate.
(3)   The premiums may be paid by the policyholder:
      (a)   Wholly from funds contributed by the employee, by payroll deduction or otherwise;
      (b)   Wholly from funds contributed by any department, board, agency, public postsecondary education
  institution, or branch of state, city, urban-county, charter county, county, or consolidated local
  government; or
      (c)   Partly from each, except that any premium due for health care coverage or dental coverage, if any, in
  excess of the premium amount contributed by any department, board, agency, postsecondary education
  institution, or branch of state, city, urban-county, charter county, county, or consolidated local
  government for any other health care coverage shall be paid by the employee.
(4)   If an employee moves his or her place of residence or employment out of the service area of an insurer
      offering a managed health care plan, under which he or she has elected coverage, into either the service area of
      another managed health care plan or into an area of the Commonwealth not within a managed health care plan
      service area, the employee shall be given an option, at the time of the move or transfer, to change his or her
      coverage to another health benefit plan.
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(5)    No payment of premium by any department, board, agency, public postsecondary educational institution, or
       branch of state, city, urban-county, charter county, county, or consolidated local government shall constitute
       compensation to an insured employee for the purposes of any statute fixing or limiting the compensation of
       such an employee. Any premium or other expense incurred by any department, board, agency, public
       postsecondary educational institution, or branch of state, city, urban-county, charter county, county, or
       consolidated local government shall be considered a proper cost of administration.
(6)    The policy or policies may contain the provisions with respect to the class or classes of employees covered,
       amounts of insurance or coverage for designated classes or groups of employees, policy options, terms of
       eligibility, and continuation of insurance or coverage after retirement.
(7)    Group rates under this section shall be made available to the disabled child of an employee regardless of the
       child's age if the entire premium for the disabled child's coverage is paid by the state employee. A child shall
       be considered disabled if he or she has been determined to be eligible for federal Social Security disability
       benefits.
(8)    The health care contract or contracts for employees shall be entered into for a period of not less than one (1)
       year.
(9)    The secretary shall appoint thirty-two (32) persons to an Advisory Committee of State Health Insurance
       Subscribers to advise the secretary or the secretary's designee regarding the state-sponsored health insurance
       program for employees. The secretary shall appoint, from a list of names submitted by appointing authorities,
       members representing school districts from each of the seven (7) Supreme Court districts, members
       representing state government from each of the seven (7) Supreme Court districts, two (2) members
       representing retirees under age sixty-five (65), one (1) member representing local health departments, two (2)
       members representing the Kentucky Teachers' Retirement System, and three (3) members at large. The
       secretary shall also appoint two (2) members from a list of five (5) names submitted by the Kentucky
       Education Association, two (2) members from a list of five (5) names submitted by the largest state employee
       organization of nonschool state employees, two (2) members from a list of five (5) names submitted by the
       Kentucky Association of Counties, two (2) members from a list of five (5) names submitted by the Kentucky
       League of Cities, and two (2) members from a list of names consisting of five (5) names submitted by each
       state employee organization that has two thousand (2,000) or more members on state payroll deduction. The
       advisory committee shall be appointed in January of each year and shall meet quarterly.
(10)   Notwithstanding any other provision of law to the contrary, the policy or policies provided to employees
       pursuant to this section shall not provide coverage for obtaining or performing an abortion, nor shall any state
       funds be used for the purpose of obtaining or performing an abortion on behalf of employees or their
       dependents.
(11)   Interruption of an established treatment regime with maintenance drugs shall be grounds for an insured to
       appeal a formulary change through the established appeal procedures approved by the Department of
       Insurance, if the physician supervising the treatment certifies that the change is not in the best interests of the
       patient.
(12)   Any employee who is eligible for and elects to participate in the state health insurance program as a retiree, or
       the spouse or beneficiary of a retiree, under any one (1) of the state-sponsored retirement systems shall not be
       eligible to receive the state health insurance contribution toward health care coverage as a result of any other
       employment for which there is a public employer contribution. This does not preclude a retiree and an active
       employee spouse from using both contributions to the extent needed for purchase of one (1) state sponsored
       health insurance policy for that plan year.
(13)   (a)    The policies of health insurance coverage procured under subsection (2) of this section shall include a
  mail-order drug option for maintenance drugs for state employees. Maintenance drugs may be
  dispensed by mail order in accordance with Kentucky law.
       (b)    A health insurer shall not discriminate against any retail pharmacy located within the geographic
  coverage area of the health benefit plan and that meets the terms and conditions for participation
  established by the insurer, including price, dispensing fee, and copay requirements of a mail-order
  option. The retail pharmacy shall not be required to dispense by mail.
       (c)    The mail-order option shall not permit the dispensing of a controlled substance classified in Schedule II.
(14)   The policy or policies provided to state employees or their dependents pursuant to this section shall provide
       coverage for obtaining a hearing aid and acquiring hearing aid-related services for insured individuals under
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       eighteen (18) years of age, subject to a cap of one thousand four hundred dollars ($1,400) every thirty-six (36)
       months pursuant to KRS 304.17A-132.
(15)   Any policy provided to state employees or their dependents pursuant to this section shall provide coverage for
       the diagnosis and treatment of autism spectrum disorders consistent with KRS 304.17A-142.
(16)   Any policy provided to state employees or their dependents pursuant to this section shall provide coverage for
       obtaining amino acid-based elemental formula pursuant to KRS 304.17A-258.
(17)   If a state employee's residence and place of employment are in the same county, and if the hospital located
       within that county does not offer surgical services, intensive care services, obstetrical services, level II
       neonatal services, diagnostic cardiac catheterization services, and magnetic resonance imaging services, the
       employee may select a plan available in a contiguous county that does provide those services, and the state
       contribution for the plan shall be the amount available in the county where the plan selected is located.
(18)   If a state employee's residence and place of employment are each located in counties in which the hospitals do
       not offer surgical services, intensive care services, obstetrical services, level II neonatal services, diagnostic
       cardiac catheterization services, and magnetic resonance imaging services, the employee may select a plan
       available in a county contiguous to the county of residence that does provide those services, and the state
       contribution for the plan shall be the amount available in the county where the plan selected is located.
(19)   The Personnel Cabinet is encouraged to study whether it is fair and reasonable and in the best interests of the
       state group to allow any carrier bidding to offer health care coverage under this section to submit bids that may
       vary county by county or by larger geographic areas.
(20)   Notwithstanding any other provision of this section, the bid for proposals for health insurance coverage for
       calendar year 2004 shall include a bid scenario that reflects the statewide rating structure provided in calendar
       year 2003 and a bid scenario that allows for a regional rating structure that allows carriers to submit bids that
       may vary by region for a given product offering as described in this subsection:
       (a)    The regional rating bid scenario shall not include a request for bid on a statewide option;
       (b)    The Personnel Cabinet shall divide the state into geographical regions which shall be the same as the
  partnership regions designated by the Department for Medicaid Services for purposes of the Kentucky
  Health Care Partnership Program established pursuant to 907 KAR 1:705;
       (c)    The request for proposal shall require a carrier's bid to include every county within the region or regions
  for which the bid is submitted and include but not be restricted to a preferred provider organization
  (PPO) option;
       (d)    If the Personnel Cabinet accepts a carrier's bid, the cabinet shall award the carrier all of the counties
  included in its bid within the region. If the Personnel Cabinet deems the bids submitted in accordance
  with this subsection to be in the best interests of state employees in a region, the cabinet may award the
  contract for that region to no more than two (2) carriers; and
       (e)    Nothing in this subsection shall prohibit the Personnel Cabinet from including other requirements or
  criteria in the request for proposal.
(21)   Any fully insured health benefit plan or self-insured plan issued or renewed on or after July 12, 2006, to public
       employees pursuant to this section which provides coverage for services rendered by a physician or osteopath
       duly licensed under KRS Chapter 311 that are within the scope of practice of an optometrist duly licensed
       under the provisions of KRS Chapter 320 shall provide the same payment of coverage to optometrists as
       allowed for those services rendered by physicians or osteopaths.
(22)   Any fully insured health benefit plan or self-insured plan issued or renewed to public employees pursuant to
       this section shall comply with:
       (a)    KRS 304.12-237;
       (b)    KRS 304.17A-270 and 304.17A-525;
       (c)    KRS 304.17A-600 to 304.17A-633;
       (d)    KRS 205.593;
       (e)    KRS 304.17A-700 to 304.17A-730;
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       (f)   KRS 304.14-135;
       (g)   KRS 304.17A-580 and 304.17A-641;
       (h)   KRS 304.99-123;
       (i)   KRS 304.17A-138;
       (j)   KRS 304.17A-148;
       (k)   KRS 304.17A-163 and 304.17A-1631;
       (l)   KRS 304.17A-265;
       (m)   KRS 304.17A-261;
       (n)   KRS 304.17A-262;
       (o)   KRS 304.17A-145;
       (p)   KRS 304.17A-129;
       (q)   KRS 304.17A-133;
       (r)   KRS 304.17A-264;[ and]
       (s)   Section 1 of this Act; and
       (t)   Administrative regulations promulgated pursuant to statutes listed in this subsection.
(23)   (a)   Any fully insured health benefit plan or self-insured plan issued or renewed to public employees
  pursuant to this section shall provide a special enrollment period to pregnant women who are eligible
  for coverage in accordance with the requirements set forth in KRS 304.17-182.
       (b)   The Department of Employee Insurance shall, at or before the time a public employee is initially
  offered the opportunity to enroll in the plan or coverage, provide the employee a notice of the special
  enrollment rights under this subsection.
      Section 4.     Sections 1, 2, and 3 of this Act apply to health benefit plans issued or renewed on or after
January 1, 2027.
      Section 5. (1) Within 30 days of the effective date of this section, the Department of Insurance shall
submit the following to the federal Department of Health and Human Services:
       (a)     The Department of Insurance's determination as to whether any requirement of Section 1 of this Act is
in addition to the essential health benefits required under federal law; and
       (b)    A request to confirm the determination submitted under paragraph (a) of this subsection within 1 year
from the date the determination was received.
      (2)   If the federal Department of Health and Human Services fails to respond to the determination and
request submitted under subsection (1) of this section within 1 year from the date the determination was received, the
Department of Insurance shall consider the determination submitted under subsection (1) as accepted by the federal
department.
       Section 6. Sections 1 to 4 of this Act take effect January 1, 2027.
  Signed by Governor April 7, 2026.