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Delaware General AssemblyDelaware RegulationsAdministrative CodeTitle 181400

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1.0 Purpose

The purpose of this regulation is to set forth the format and submission requirements for the mental health parity report that is required to be submitted to the Delaware Health Information Network and the Department in accordance with 18 Del.C. §§3343 and 3571U.

 

2.0 Applicability

This regulation applies to every carrier as defined in Section 4.0 of this regulation who issues a health benefit plan as defined in Section 4.0 of this regulation.

 

3.0 Authority

The authority for this regulation is 18 Del.C. §§311, 3343 and 3571U and Del. S.B. 230/Del. S.A. 1, 149th Gen. Assem. §4 (2018), and promulgated in accordance with the Delaware Administrative Procedures Act, 29 Del.C. Chapter 101.

 

4.0 Definitions

The following words and terms, when used in this regulation, have the following meaning unless the context clearly indicates otherwise:

"Carrier" means any entity that provides health insurance in this State. For the purposes of this section, "carrier" includes an insurance company, health service corporation, health maintenance organization, managed care organization, and any other entity providing a plan of health insurance or health benefits subject to state insurance regulation. "Carrier" also includes any third-party administrator or other entity that adjusts, administers, or settles claims in connection with a health benefit plan. “Carrier” also includes any carrier who administers a health benefit plan under 31 Del.C. §505(3).

Commissioner” means the Insurance Commissioner of the State of Delaware.

Department” means the Delaware Department of Insurance.

FR” means financial requirements, and includes but is not limited to deductibles, copayments, coinsurance, and out-of-pocket maximums.

Health benefit plan" means any hospital or medical policy or certificate, major medical expense insurance, health service corporation subscriber contract, or health maintenance organization subscriber contract, as defined and qualified under 18 Del.C. §§3343 and 3578, and any assistance provided to an individual under 31 Del.C. §505(3).

Mental health parity report” means the report that is to be submitted to the Department and to the Delaware Health Information Network pursuant to Section 5.0 of this regulation.

MHPAEA” means the Mental Health Parity and Addiction Equity Act of 2008 (29 U.S.C. § 1185a) as amended and supplemented.

MH/SUD benefits” means mental health and substance use disorder benefits.

M/S benefits” means medical and surgical benefits.

NQTL” means non-quantitative treatment limitation, and includes but is not limited to preauthorization requirements and first-fail requirements.

QTL” means quantitative treatment limitation, and includes but is not limited to lifetime limits, episode limits, and day and visit limits.

 

5.0 Reporting Content and Format

5.1 Each carrier shall complete a mental health parity report, using forms provided by the Department, in which the carrier shall report on the following:

5.1.1 Whether the health insurance coverage is or is not exempt from MHPAEA. If the carrier reports that the health insurance coverage is exempt from MHPAEA, the carrier shall indicate the reason for the exemption, which may include, by way of example only, retiree-only plan, excepted benefits (45 CFR § 146.145(b)), short term limited duration insurance, small employer exemption (45 CFR § 146.136(f)), or increased cost exemption (45 CFR § 146.136(g));

5.1.2 If the health insurance coverage is not exempt from MHPAEA pursuant to subsection 5.1.1 of this regulation:

5.1.2.1 How the health insurance coverage provides MH and/or SUD benefits in addition to providing M/S benefits; and

5.1.2.2 Using the data collection tool incorporated as Appendix A of this regulation, how the insurance coverage provides MH/SUD benefits in each of the following six coverage classifications in which M/S benefits are provided:

5.1.2.2.1 Inpatient, in-network;

5.1.2.2.2 Inpatient, out-of-network;

5.1.2.2.3 Outpatient, in-network;

5.1.2.2.4 Outpatient, out-of-network;

5.1.2.2.5 Emergency care; and

5.1.2.2.6 Prescription drugs.

5.1.3 If the plan includes multiple tiers in its prescription drug formulary, whether the tier classifications are based on reasonable factors (such as cost, efficacy, generic versus brand name, and mail order versus pharmacy pick-up) determined in accordance with the rules for NQTLs at 45 CFR 146.136(c)(4)(i), and without regard to whether the drug is generally prescribed for MH/SUD or M/S benefits. To comply with this reporting requirement, a carrier shall explain how the plan’s tiering factors for MH/SUD prescription drugs are comparable to and are applied no more stringently than the tiering factors for M/S prescription drugs.

5.1.4 If the plan includes multiple network tiers of in-network providers, whether the tiering is based on reasonable factors (such as quality, performance, and market standards) determined in accordance with the rules for NQTLs at 45 CFR 146.136(c)(4)(i), and without regard to whether a provider provides services with respect to MH/SUD benefits or M/S benefits. To comply with this reporting requirement a carrier shall explain how the plan’s tiering factors for MH/SUD network tiers are comparable to and are applied no more stringently than the tiering factors for M/S network tiers.

5.1.5 Whether the plan complies with the parity requirements for aggregate lifetime and annual dollar limits, including the prohibition on lifetime dollar limits or annual dollar limits for MH/SUD benefits that are lower than the lifetime or annual dollar limits imposed on M/S benefits. To comply with this reporting requirement, a carrier shall list the services subject to lifetime or annual limits, separated into MH/SUD and M/S benefits.

5.1.6 Whether the plan imposes any FR or QTLs on MH/SUD benefits in any classification that is more restrictive than the predominant FR or QTL of that type that applies to substantially all M/S benefits in the same classification. To comply with this reporting requirement a carrier shall demonstrate compliance with this standard by completing the data collection tool incorporated as Appendix A of this regulation by reference;

5.1.7 Whether the plan applies any cumulative financial requirements or cumulative QTL for MH/SUD benefits in a classification that accumulates separately from any cumulative financial requirement or QTL established for M/S benefits in the same classification. To demonstrate compliance with this standard, the carrier shall complete the data collection tool incorporated as Appendix A to this regulation;

5.1.8 Whether the plan imposes NQTLs on MH/SUD benefits in any classification. If so, the carrier shall demonstrate compliance with parity requirements by completing the data collection tool incorporated as Appendix A of this regulation. For purposes of this subsection 5.1.8, examples of NQTLs include but are not limited to:

5.1.9 Whether the carrier complies with MHPAEA disclosure requirements including:

5.1.9.1 Criteria for medical necessity determinations for MH/SUD benefits; and

5.1.9.2 The reasons for any denial of benefits of any kind.

5.2 Nothing in this Section shall supersede any federal or State law governing the privacy of health information.

 

6.0 Report submission deadlines and deadline extension request requirements

6.1 Each carrier who is required to submit a mental health parity report pursuant to this regulation shall submit its initial report on or before July 1, 2019.

6.2 Each carrier who is required to submit a mental health parity report pursuant to this regulation shall submit an amended report 30 calendar days after the close of any year during which the carrier made significant changes to how it designs and applies its medical management protocols.

6.3 One copy of each report required to be prepared in accordance with this Regulation shall be submitted to each of the following addresses:

6.4 A carrier may request from the Commissioner an extension of the deadline for submission of the initial report to be submitted pursuant to subsection 6.1 of this regulation, and any subsequent reports to be submitted pursuant to subsection 6.2 of this regulation for due cause. To request an extension pursuant to this subparagraph, the carrier shall, no later than 30 days prior to the reporting deadline, petition the Commissioner for a reporting deadline extension, with a copy of the request to the Delaware Health Information Network, stating the reasons for the extension request.

6.4.1 No reporting deadline shall be extended for a period longer than 60 days.

6.4.2 If the Commissioner fails to affirmatively approve or disapprove an extension request within 30 days of receipt of the request, the request shall be deemed approved.

6.4.3 The Commissioner may extend the 30-day review period for not more than 30 additional days by providing the carrier with written notice of the extension before the expiration of the initial 30-day review period.

23 DE Reg. 316 (10/01/19)

 

7.0 Enforcement Authority

7.1 To ensure compliance with the provisions of this regulation and to protect Delaware health care consumers, the Commissioner may, in his or her discretion, examine the business and financial affairs of a carrier doing business in this state by utilizing the powers granted by 18 Del.C. §§320, 3343(g)(5), 3571U(a)(5), and other provisions of Title 18 as may be applicable.

7.2 Any person or entity who violates any provision of this regulation shall be subject to the penalties provided in 18 Del.C. Chapter 3, and such other provisions of Title 18 as may be applicable.

 

8.0 Severability

If any provision of this regulation, or the application thereof to any person or circumstance, is held invalid, such invalidity shall not affect other provisions or applications of this regulation which can be given effect without the invalid provision or application, and to that end the provisions of this regulation are severable.

 

9.0 Effective Date

This regulation shall be effective on June 11, 2019.

 

APPENDIX A

DATA COLLECTION TOOL FOR MENTAL HEALTH PARITY ANALYSIS

 

Most parity analysis examines benefits by comparing MH/SUD to M/S within a classification. 45 CFR 146.136(c)(2)(i). The exception is aggregate lifetime or annual dollar limits (to the extent the plan is not prohibited from imposing such limits under Federal or State law), which are examined for the plan as a whole. See 45 CFR 146.136(b). The following is intended to simplify data collection for parity analysis at the classification level.

 

A-1 GUIDANCE FOR PLACING BENEFITS INTO CLASSIFICATIONS:

 

MH/SUD and M/S benefits must be mapped to one of six classifications of benefits: (1) inpatient in-network, (2) inpatient out-of-network, (3) outpatient in-network, (4) outpatient out-of-network, (5) prescription drugs, and (6) emergency care (see subsection 5.1.3 of this regulation and 45 CFR 146.136(c)(2)(ii)):

 

The “inpatient” classification typically refers to services or items provided to a beneficiary when a physician has written an order for admission to a facility, while the “outpatient” classification refers to services or items provided in a setting that does not require a physician’s order for admission and does not meet the definition of emergency care.

 

“Office visits” are a permissible sub-classification separate from other outpatient services.

 

 

Some benefits, for example lab and radiology, may fit into multiple classifications depending on whether they are provided during an inpatient stay, on an outpatient basis, or in the emergency department.

 

Insurers should use the same decision-making standards to classify all benefits, so that the same standard applies to M/S and MH/SUD benefits. For example, if a plan classifies care in skilled nursing facilities and rehabilitation hospitals for M/S benefits as inpatient benefits, it must classify covered care in residential treatment facilities for MH/SUD benefits as inpatient benefits.

 

A-2 FINANCIAL REQUIREMENTS AND QUANTITATIVE TREATMENT LIMITATIONS:

 

Types of FRs include deductibles, copayments, coinsurance, and out-of-pocket maximums. See 45 CFR 146.136(c)(1)(ii). Types of QTLs include annual, episode, and lifetime day and visit limits, for example number of treatments, visits, or days of coverage. See 45 CFR 146.136(c)(1)(ii). A two-part analysis applies to FRs and QTLs. In general, MHPAEA regulations require that any FR or QTL imposed on MH/SUD benefits not be more restrictive than the predominant level of financial requirement or treatment limitation of that type that applies to substantially all medical/surgical benefits in a classification.

 

If the plan applies a cumulative FR or QTL (a FR or QTL that determines whether or to what extent benefits are provided based on accumulated amounts), the FR or QTL must not accumulate separately from any established for M/S benefits in a classification.

For each type of financial requirement that applies to MH/SUD benefits, list the expected percentage of plan payments for M/S benefits in each classification that are subject to that same type of financial requirement.

 

A-3 NON-QUANTITATIVE TREATMENT LIMITATIONS:

 

NQTLs include but are not limited to medical management techniques such as step therapy and pre-authorization requirements. Coverage cannot impose a NQTL with respect to MH/SUD benefits in any classification unless, under the terms of the plan as written and in operation, any processes, strategies, evidentiary standards, or other factors used in applying the NQTL to MH/SUD benefits in the classification are comparable to, and are applied no more stringently than, the processes, strategies, evidentiary standards, or other factors used in applying the limitation with respect to M/S benefits in the classification. Note that not every NQTL needs an evidentiary standard. There is flexibility under MHPAEA for plans to use NQTLs. The focus is on finding out what processes and standards the plan actually uses.

 

All plan standards that are not FRs or QTLs and that limit the scope or duration of benefits for services are subject to the NQTL parity requirements. This includes restrictions such as geographic limits, facility-type limits, and network adequacy.

 

The following data collection chart is modeled after a tool used in federal MHPAEA examinations. Insurers who have completed “Table 5” for NQTLs may substitute those documents for completion of this chart.

A. Definition of Medical Necessity What is the definition of medical necessity?
C. Concurrent Review Process, including frequency and penalties for all services. Describe any step therapy or “fail first” requirements and requirements for submission of treatment required forms or treatment plans.

22 DE Reg. 1025 (06/01/19)

23 DE Reg. 316 (10/01/19)

 

Last Updated: September 11 2020 13:36:12.
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