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SPONSOR: Sen. Townsend & Rep. Minor-Brown & Sen. Pinkney
Sens. Buckson, Cruce, Hansen, Huxtable, Pettyjohn,
Poore, Seigfried, Sokola, Sturgeon, Walsh; Reps. Berry,
Burns, Chukwuocha, Gorman, Griffith, Harris, Heffernan,
K. Johnson, Lambert, Morrison, Osienski, Kamela Smith,
Michael Smith, Snyder-Hall
DELAWARE STATE SENATE
153rd GENERAL ASSEMBLY
SENATE BILL NO. 22
AN ACT TO AMEND TITLE 18 OF THE DELAWARE CODE RELATING TO INSURANCE COVERAGE.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
1 Section 1. Amend Chapter 33, Title 18 of the Delaware Code by making deletions as shown by strike through and
2 insertions as shown by underline as follows and by redesignating accordingly:
3 § 3343. Insurance coverage for serious mental illness mental health disorders and substance use disorders [For
4 application of this section, see 81 Del. Laws, c. 29, § 3; and 82 Del. Laws, c. 199, § 3].
5 (a) Definitions. — For purposes of this section:
6 (1) “ASAM criteria” means the latest version of comprehensive set of guidelines for placement,
7 continued stay, and transfer or discharge of patients individuals with addiction a primary diagnosis of a substance
8 use disorder established by the American Society of Addiction Medicine (“ASAM”) for use in determining
9 medically necessary treatment..
10 (3) “Drug and alcohol dependencies” means substance abuse disorder or the chronic, habitual, regular, or
11 recurrent use of alcohol, inhalants, or controlled substances as identified in Chapter 47 of Title 16.
12 (6) “Medication-assisted treatment” means the use of FDA-approved medications, in combination with
13 counseling and behavioral therapies, to provide a whole patient approach to the treatment of drug and alcohol
14 dependencies.
15 (7) “Serious mental illness” means any of the following biologically based mental illnesses:
16 schizophrenia, bipolar disorder, obsessive-compulsive disorder, major depressive disorder, panic disorder,
17 anorexia nervosa, bulimia nervosa, schizo affective disorder, and delusional disorder. The diagnostic criteria set
18 out in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders shall be utilized to
19 determine whether a beneficiary of a health benefit plan is suffering from a serious mental illness.
20 ( ) “Child and Adolescent Level of Care Utilization System / Service Intensity Instrument” or
21 “CALOCUS-CASII” means the latest version of comprehensive set of guidelines for placement, continued stay,
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22 and transfer or discharge of children and adolescents aged 6 to 18 with a primary diagnosis of a mental health
23 disorder established by the American Association for Community Psychiatry (“AACP”) and the American
24 Academy of Child and Adolescent Psychiatry (“AACAP”).
25 ( ) “Early Childhood Service Intensity Instrument” or “ECSII” means the latest version of the service
26 planning tool established by AACAP for determination of the intensity of services for children and families with
27 emotional, behavioral, or developmental needs, including those who are experiencing environmental stressors that
28 may put them at risk for such problems.
29 ( ) "Emergency care" means care provided to treat a mental health disorder or substance use disorder that
30 meets the definition of an emergency medical condition as defined in § 3349 of this title.
31 ( ) “Generally accepted standards of mental health disorder and substance use disorder care” means
32 standards of care and clinical practice that are generally recognized by health care providers practicing in relevant
33 clinical specialties such as psychiatry, psychology, clinical social work, addiction medicine and counseling, and
34 behavioral health treatment. Valid, evidence-based sources reflecting generally accepted standards of mental
35 health disorder and substance use disorder care include published peer-reviewed scientific studies and medical
36 literature and clinical practice guidelines and other recommendations of nonprofit health care professional
37 associations.
38 ( ) “Level of Care Utilization System” or “LOCUS” means the latest version of comprehensive set of
39 guidelines for placement, continued stay, and transfer or discharge of adults over 18 years of age with a primary
40 diagnosis of a mental health disorder established by AACP.
41 ( ) “Medically necessary” means a service or product addressing the specific needs of a covered person,
42 for the purpose of screening, preventing, diagnosing, managing or treating a mental health disorder or substance
43 use disorder, including minimizing the progression of a disorder or its symptoms, in a manner that is all of the
44 following:
45 a. In accordance with the generally accepted standards of mental health disorder and substance
46 use disorder care.
47 b. Clinically appropriate in terms of type, frequency, extent, site, and duration.
48 c. Not primarily for the economic benefit of the carrier or for the convenience of the covered
49 person, treating physician, or other health care provider.
50 ( ) “Mental health disorders and substance use disorders” means a mental health disorder or substance use
51 disorder that falls under any of the diagnostic categories listed in the mental and behavioral disorders chapter of
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52 the most recent edition of the World Health Organization’s International Statistical Classification of Diseases and
53 Related Health Problems, or that is listed in the most recent version of the American Psychiatric Association’s
54 Diagnostic and Statistical Manual of Mental Disorders or the Diagnostic Classification of Mental Health and
55 Developmental Disorders of Infancy and Early Childhood.
56 ( ) “Nonprofit health care professional associations” means a not-for-profit health care provider
57 professional association or specialty society that is generally recognized by clinicians practicing in the relevant
58 clinical specialty and that issues peer-reviewed guidelines, criteria, or other clinical recommendations developed
59 through a transparent process, including the American Psychiatric Association, American Psychological
60 Association, American Society of Addiction Medicine, American Academy of Child and Adolescent Psychiatry,
61 and American Association for Community Psychiatry.
62 ( ) "Urgent mental health disorder and substance use disorder care" means care that is delivered on an
63 expedited basis for the treatment of an acute mental health disorder or substance use disorder with symptoms of
64 sufficient severity pursuant to a determination by a licensed treating health-care provider, operating within the
65 health care-provider's scope of practice and professional expertise, that the failure to provide the service is likely to
66 result in serious, long-term health complications or a material deterioration in the covered person's or enrollee's
67 condition and prognosis.
68 ( ) “Utilization review” means reviewing and approving, modifying, delaying, or denying, requests by
69 health care providers, covered persons, or their authorized representatives for coverage of health care services,
70 based in whole or in part on medical necessity, or for out-of-network services required pursuant to subsection (f)
71 of this section.
72 ( ) “Utilization review criteria” means any criteria, standards, protocols, or guidelines used by a carrier to
73 conduct utilization review.
74 (b) Coverage of serious mental illnesses and drug and alcohol dependencies mental health disorders and
75 substance use disorders. —
76 (1) a. Carriers shall provide coverage for serious mental illnesses and drug and alcohol dependencies in
77 all medically necessary services for mental health disorders or substance use disorders under all health benefit
78 plans delivered or issued for delivery in this State. Coverage for serious mental illnesses and drug and alcohol
79 dependencies mental health disorders and substance use disorders must provide all of the following:
80 1. Inpatient coverage for the diagnosis and treatment of drug and alcohol dependencies.
81 1. The levels of care described in the ASAM criteria, LOCUS, CALOCUS-CASII, and ECSII.
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82 2. Unlimited medically necessary treatment services for drug and alcohol dependencies mental
83 health disorders and substance use disorders as required by the Mental Health Parity and Addiction
84 Equity Act of 2008 (29 U.S.C. § 1185a) and determined by the use of the full set of ASAM criteria, in all
85 of the following: ASAM criteria, LOCUS, CALOCUS-CASII, and ECSII, including all of the following
86 levels of care:
87 A. Treatment provided in residential setting. Residential settings.
88 B. Intensive outpatient programs.
89 C. Inpatient settings, including withdrawal management.
90 3. Emergency services to treat mental health disorders and substance use disorders, including
91 emergency transportation to an appropriate provider or facility for the purposes of stabilization, mobile
92 crisis response teams, crisis receiving and stabilization services, and other services necessary to screen,
93 evaluate, and stabilize an individual experiencing a mental health disorder or substance use disorder
94 emergency.
95 4. For purposes of paragraph (b)(1)a.3. of this section, mobile crisis response services provided
96 by a state-operated program or by a program authorized by the Division of Substance Abuse and Mental
97 Health are considered emergency services. A carrier shall reimburse a state-operated or state-authorized
98 mobile crisis program that submits claims for covered services consistent with this section. Nothing in
99 this section requires a carrier to establish or duplicate a mobile crisis delivery system where the State
100 operates or authorizes such services.
101 5. Nothing in this subsection requires a carrier to cover non-clinical placements or supports,
102 including foster care or recovery residences that are not licensed or certified as behavioral treatment
103 programs under Delaware law; provided, however, that if a carrier provides coverage for such services or
104 settings, the carrier shall apply the requirements of this section to that coverage and shall cover medically
105 necessary clinical services, including services delivered in residential treatment settings, as required
106 under paragraph (b)(1)a.2. of this section.
107 b. Subject to subsections (a), (c) through (f), and (h) of this section, no carrier may issue for
108 delivery, or deliver, in this State any health benefit plan that does any of the following:
109 1. containing Contains terms that place a greater financial burden on an insured a
110 covered person for covered services provided in the diagnosis and treatment of a serious mental
111 illness and drug and alcohol dependency mental health disorder or substance use disorder than
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112 for covered services provided in the diagnosis and treatment of any other illness or disease
113 covered by the health benefit plan, including terms for deductibles, co-pays, monetary limits,
114 coinsurance factors, limits in the numbers of visits, limits in the length of inpatient stays,
115 durational limits, or limits in the coverage of prescription medicines.
116 2. Discriminates, in its benefit design or implementation of its benefit design, against
117 covered persons because of their history of, present, or predicted mental health disorder or
118 substance use disorder.
119 (2) a. A health benefit plan that provides coverage for prescription drugs must provide coverage for the
120 treatment of serious mental illnesses and drug and alcohol dependencies mental health disorders and substance use
121 disorders that includes immediate access, without prior authorization, to a 5-day emergency supply of prescribed
122 medications covered under the health benefit plan for the medically necessary treatment services of serious mental
123 illnesses and drug and alcohol dependencies mental health disorders and substance use disorders where an
124 emergency medical condition, as defined in § 3349(e) of this title, exists, including a prescribed drug or
125 medication associated with the management of opioid withdrawal or stabilization, except where otherwise
126 prohibited by law.
127 b. Coverage of an emergency supply of prescribed medications must include medication for
128 opioid overdose reversal otherwise covered under the health benefit plan prescribed to a covered person.
129 c. Coverage provided under this paragraph (b)(2) of this section may be subject to copayments,
130 coinsurance, and annual deductibles that are consistent with those imposed on other benefits within the
131 health benefit plan and in compliance with the Mental Health Parity and Addiction Equity Act’s financial
132 requirements; provided, however, a health benefit plan must not impose an additional copayment or
133 coinsurance on a covered person who received an emergency supply of the same medication in the same
134 30-day period in which the emergency supply of medication was dispensed.
135 d. This paragraph (b)(2) of this section does not preclude the imposition of a copayment or
136 coinsurance on the initial emergency supply of medication in an amount that is less than the copayment or
137 coinsurance otherwise applicable to a 30-day supply of such medication, provided that the total sum of
138 copayments or coinsurance for an entire 30-day supply of the medication does not exceed the copayment
139 or coinsurance otherwise applicable to a 30-day supply of such medication.
140 (3) A health benefit plan that provides coverage for prescription drugs must place at least 1 formulation of
141 a medication-assisted treatment each FDA-approved medication to treat one or more substance use disorders,
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142 regardless of whether the prescription drug is formulary, non-formulary, or excluded, on the lowest tier of the drug
143 formulary developed and maintained by the carrier, including each of the following:
144 a. Buprenorphine.
145 b. Naltrexone.
146 c. Naloxone.
147 d. A product containing both buprenorphine and naloxone.
148 e. Disulfiram.
149 f. Acamprosate.
150 (4) A health benefit plan that provides coverage for prescription drugs must cover the fees associated with
151 the administration or dispensing of methadone dispensed at an opioid treatment program as defined under 42
152 C.F.R. § 8.2.
153 (c) Eligibility for coverage. — (1) Subject to the limitations under subsection (d) of this section, a health benefit
154 plan may condition coverage of services provided in the diagnosis and treatment of a serious mental illness and drug and
155 alcohol dependency mental health disorder or substance use disorder on any of the following requirements:
156 a. That the services must be rendered by a mental health disorder or substance use disorder
157 professional licensed or certified by the State Board of Licensing, including, but not limited to,
158 psychologists, psychiatrists, social workers, and other such mental health professionals, or a drug and
159 alcohol counselor who has been certified by the Delaware Certified Alcohol and Drug Counselors
160 Certification Board, or in a mental health disorder or substance use disorder facility licensed by the State
161 or in a treatment facility approved by the Department of Health and Social Services or the Bureau of
162 Alcoholism and Drug Abuse as set forth in Chapter 22 of Title 16, or substantially similar licensing
163 entities in other states. Nothing in this paragraph (c)(1)a. of this section affects a health benefit plan’s
164 obligation to cover medically necessary team-based services, including Coordinated Specialty Care and
165 Assertive Community Treatment, of a mental health disorder or substance use disorder so long as such
166 services are supervised by a licensed or certified professional.
167 b. That the services must be medically necessary.
168 c. That the services must be covered services subject to any administrative requirements of the
169 health benefit plan.
170 (2) A health benefit plan may further condition coverage of services provided in the diagnosis and
171 treatment of a serious mental illness and drug and alcohol dependency mental health disorder or substance use
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172 disorder in the same manner and to the same extent as coverage for all other illnesses and diseases is conditioned.
173 Such conditions include precertification and referral requirements.
174 (d) Benefit management. — (1) A carrier may, directly or by contract with another qualified entity, manage the
175 benefit prescribed by subsection (b) of this section in order to limit coverage of services provided in the diagnosis and
176 treatment of a mental health disorder or substance use disorder serious mental illness and drug and alcohol dependency to
177 those services that are deemed medically necessary as follows:
178 a. The management of benefits for serious mental illnesses and drug and alcohol dependencies
179 mental health disorders or substance use disorders may be by methods used for the management of
180 benefits provided for other medical conditions, or may be by management methods unique to mental
181 health benefits, including pre-admission screening, prior authorization of services, including utilization
182 review, and the development and monitoring of treatment plans.
183 b. A carrier may not impose precertification, prior authorization, pre-admission screening, or
184 referral requirements for the diagnosis and medically necessary treatment services of drug and alcohol
185 dependencies mental health disorders or substance use disorders, including inpatient treatment or on a
186 prescription medication under paragraph (b)(3) of this section.
187 c. The benefit prescribed by paragraph (b)(1) of this section may not be subject to concurrent
188 utilization review during the first 14 days of any inpatient admission to a facility approved by a nationally
189 recognized health-care accrediting organization or the Division of Substance Abuse and Mental Health,
190 30 days of intensive outpatient program treatment, or 5 days of inpatient withdrawal management,
191 provided that the facility notifies the carrier of both the admission and the initial treatment plan within 48
192 hours of the admission. The facility shall perform daily clinical review of the patient, including the
193 periodic consultation with the carrier to ensure that the facility is using the evidence-based and peer
194 reviewed clinical review tool utilized by the carrier which is designated by the American Society of
195 Addiction Medicine (“ASAM”) or, if applicable, any state-specific ASAM criteria, and appropriate to the
196 age of the patient, and conduct periodic assessments using ASAM, LOCUS, CALOCUS-CASII, or
197 ECSII as appropriate to the covered person’s age and primary diagnosis, to determine continued stay,
198 transfer or discharge to ensure that the inpatient treatment is medically necessary for the patient covered
199 person.
200 d. Any utilization review of treatment provided under paragraph (b)(1) of this section may
201 include a review of all services non-emergency care provided during such inpatient treatment, including
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202 all services provided during the first 14 days of such inpatient treatment, 30 days of intensive outpatient
203 program treatment, or 5 days of inpatient withdrawal management; provided, however, the carrier may
204 only deny coverage for any portion of the initial 14-day inpatient treatment on the basis that such
205 treatment non-emergency care was not medically necessary if such inpatient treatment was contrary to the
206 evidence-based and peer reviewed clinical review tool utilized by the carrier which is designated by
207 ASAM or, if applicable, any state-specific ASAM criteria. ASAM criteria, LOCUS, CALOCUS-CASII,
208 or ECSII.
209 e. A carrier must ensure that a covered person does not have any financial obligation to the
210 facility an in-network provider for any treatment under paragraph (b)(1) of this section other than any
211 copayment, coinsurance, or deductible otherwise required under the health benefit plan.
212 f. A carrier must authorize coverage of prescription medicine without imposing a step therapy
213 requirement for at least 1 formulation of each prescription medication for medication-assisted the
214 treatment of mental health disorder or substance use disorder that is on each tier of the drug formulary
215 developed and maintained by the carrier. A carrier may impose a step therapy requirement for a
216 prescription medication only to require use of a therapeutically equivalent generic drug that is rated as
217 therapeutically equivalent (AB-rated) by the United States Food and Drug Administration and has the
218 same active ingredient, dosage form, and strength as the prescribed medication. Notwithstanding any step
219 therapy requirement permitted under this subsection, a carrier shall authorize coverage of the prescribed
220 dosage form or formulation of the prescribed medication when the prescribed formulation is reasonably
221 expected to provide clinical benefit for the covered person.
222 g. Utilization review and utilization review criteria may not deviate from current generally
223 accepted standards of mental health disorder and substance use disorder care. In conducting utilization
224 review, a carrier shall apply the relevant, age-appropriate criteria or guidelines set forth in the most recent
225 version of treatment criteria or guidelines developed by the nonprofit health care association for the
226 relevant clinical specialty and shall not apply different, additional, conflicting, or more restrictive
227 utilization review criteria. In conducting utilization review permitted by this subsection relating to service
228 intensity or level of care placement, continued stay, or transfer or discharge, the carrier shall apply the
229 ASAM criteria, LOCUS, CALOCUS-CASII, or ECSII, as applicable, and shall authorize placement at
230 the service intensity and level of care consistent with that criteria. If the carrier’s application of the
231 applicable patient placement criteria is not consistent with the service intensity or level of care placement
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232 requested by the covered person or the covered person’s provider, any adverse benefit determination
233 notice must include full details of the carrier’s assessment under the applicable criteria to the provider and
234 the covered person.
235 h. Notwithstanding paragraph (d)(1)g. of this subsection, the Commissioner, in consultation with
236 the Division of Substance Abuse and Mental Health, may designate a specific edition or version of the
237 ASAM criteria, LOCUS, CALOCUS-CASII, ECSII, or other nonprofit health care professional
238 association treatment criteria or guidelines required under paragraph (d)(1)g. of this subsection during a
239 transition from one edition or version to a subsequent edition or version to ensure alignment with state
240 licensure standards.
241 (2) This section shall not be interpreted to require a carrier to employ the same benefit management
242 procedures for serious mental illnesses and drug and alcohol dependencies that are employed for the management
243 of other illnesses or diseases covered by the health benefit plan or to require parity or equivalence in the rate, or
244 dollar value of, claims denied.
245 (e) Exclusions. — This section does not apply to plans or policies not within the definition of health benefit plan,
246 as set out in subsection (a) of this section.
247 (f) Out of network Availability of in-network services. — Where a health benefit plan provides benefits for the
248 diagnosis and treatment of serious mental illnesses and drug and alcohol dependencies within a network of providers and
249 where a beneficiary of the health benefit plan obtains services consisting of diagnosis and treatment of a serious mental
250 illness and drug and alcohol dependency outside of the network of providers, this section shall not apply. The health benefit
251 plan may contain terms and conditions applicable to out of network services without reference to this section.
252 (1) A carrier shall maintain an adequate network in each of its health benefit plans to ensure timely access
253 to non-urgent mental health disorder and substance use disorder services within 10 business days and to urgent
254 mental health disorder and substance use disorder services within 24 hours. If a covered person requests assistance
255 to obtain medically necessary services and the carrier fails to secure the delivery of those services from an
256 appropriate in-network provider within applicable network adequacy standards established under state or federal
257 law, the carrier shall, in a timely manner, execute a single-case agreement that allows the covered person to receive
258 medically necessary services, including any follow-up services to complete a course of treatment, from an
259 appropriate out-of-network provider. If the carrier identifies an appropriate in-network provider who can deliver
260 medically necessary services within the applicable network adequacy standards and the covered person declines
261 those services, the carrier has satisfied its obligation under this subsection. For the purposes of this subsection,
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262 "appropriate provider" includes providers who have the training and experience necessary to provide age- and
263 condition-appropriate services to treat the covered person under the requirements of this section.
264 (2) The single-case agreement executed pursuant to this subsection shall do all of the following:
265 a. Reimburse the out-of-network provider for covered services at a rate negotiated by the
266 provider and the carrier.
267 b. Apply no greater cost-sharing requirements than would apply if the services were provided by
268 an in-network provider, with such cost-sharing amounts accruing toward the in-network deductible and
269 out-of-pocket maximum.
270 c. Specify the duration, scope, and services covered under the agreement.
271 d. Treat services provided pursuant to the agreement as covered services under the health benefit
272 plan for the duration of the agreement.
273 e. Specify that the provider shall accept payment from the carrier and the covered person's in-
274 network cost sharing as payment in full.
275 (3) If the Commissioner determines that the carrier failed to execute a single-case agreement under this
276 section in a timely manner, the Commissioner may order the carrier to hold the covered person harmless for any
277 costs in excess of in-network cost-sharing that the covered person incurred to obtain medically necessary services
278 from an out-of-network provider.
279 (4) A carrier shall disclose, in the health benefit plan policy and on the carrier’s publicly accessible
280 website, a covered person’s rights under this subsection and the process by which a covered person may request
281 assistance from the carrier in obtaining medically necessary services from an appropriate in-network provider
282 within applicable network adequacy standards, including a telephone number and a dedicated webpage or
283 electronic submission mechanism to make such requests, and the circumstances under which the carrier must enter
284 into a single-case agreement with an out-of-network provider, with no greater cost-sharing than would apply if the
285 services were provided by an in-network provider.
286 (g) Reporting requirements. —
287 Each carrier must submit a report to the Delaware Health Information Network in conjunction with the
288 Commissioner on or before July 1 2019, and any year thereafter during which the carrier makes significant changes to how
289 it designs and applies its medical management protocols; the report must contain the following information:
290 (1) A description of the process used to develop or select the medical necessity utilization review criteria
291 for mental illness and drug and alcohol dependencies mental health disorder and substance use disorder benefits
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292 and the process used to develop or select the medical necessity utilization review criteria for medical and surgical
293 benefits.
294 (2) Identification of all nonquantitative treatment limitations (NQTLs) that are applied to mental illness
295 and drug and alcohol dependencies benefits mental health disorder or substance use disorder benefits and medical
296 and surgical benefits within each classification of benefits; there may be no separate NQTLs that apply to mental
297 illness and drug and alcohol dependencies mental health disorder or substance use disorder benefits that do not
298 also apply to medical and surgical benefits within any classification of benefits.
299 (3) The results of an analysis that demonstrates that for the medical necessity criteria described in
300 paragraph (g)(1) of this section and for each NQTL identified in paragraph (g)(2) of this section, as written and in
301 operation, the processes, strategies, evidentiary standards, or other factors used in applying the medical necessity
302 criteria and each NQTL to mental illness and drug and alcohol dependencies benefits mental health disorder or
303 substance use disorder benefits within each classification of benefits are comparable to, and are applied no more
304 stringently than, the processes, strategies, evidentiary standards, or other factors used in applying the medical
305 necessity criteria and each NQTL to medical and surgical benefits within the corresponding classification of
306 benefits; at a minimum, the results of the analysis shall:
307 a. Identify the factors used to determine that an NQTL will apply to a benefit, including factors
308 that were considered but rejected.
309 b. Identify and define the specific evidentiary standards used to define the factors and any other
310 evidence relied upon in designing each NQTL.
311 c. Provide the comparative analyses, including the results of the analyses, performed to
312 determine that the processes and strategies used to design each NQTL, as written, for mental illness and
313 drug and alcohol dependencies mental health disorder or substance use disorder benefits are comparable
314 to, and are applied no more stringently than, the processes and strategies used to design each NQTL, as
315 written, for medical and surgical benefits.
316 d. Provide the comparative analyses, including the results of the analyses, performed to
317 determine that the processes and strategies used to apply each NQTL, in operation, for mental illness and
318 drug and alcohol dependencies mental health disorder or substance use disorder benefits are comparable
319 to, and applied no more stringently than, the processes or strategies used to apply each NQTL, in
320 operation, for medical and surgical benefits.
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321 e. Disclose the specific findings and conclusions reached by the carrier that the results of the
322 analyses above indicate that the carrier is in compliance with this section and the Mental Health Parity
323 and Addiction Equity Act of 2008 [P.L. 104-204] and its implementing regulations, which includes 45
324 C.F.R. 146.136, 45 C.F.R. 147.160, and any other related federal regulations found in the Code of Federal
325 Regulations.
326 (4) Any information submitted to the Delaware Health Information Network and the Commissioner by a
327 carrier that is considered proprietary by the carrier a trade secret or confidential or privileged commercial or
328 financial information shall not be made public record.
329 (5) The Insurance Commissioner shall retain the authority to enforce the provisions of this section. The
330 provisions of this section shall not give rise to a private right of action.
331 (h) Nothing in this section shall be construed to: limit
332 (1) Limit or reduce any benefit, entitlement, or coverage conferred by § 3366 of this title including, but
333 not limited to, provider and service eligibility.
334 (2) Prohibit exclusions for experimental or investigational services that comply with the parity
335 requirements of this section.
336 (3) Require a carrier to switch to the latest version of the ASAM criteria, LOCUS, CALOCUS-CASII, or
337 ECSII criteria, or diagnostic manuals or classifications during a plan year when a new version of the criteria or
338 manuals is released after a plan year has begun.
339 (i) This section does not apply to plans of health insurance or health benefits designed for issuance to persons
340 eligible for coverage under Titles XVIII, XIX, and XXI of the Social Security Act, 42 U.S.C. §§ 1395 et seq., 1396 et seq.,
341 and 1397aa et seq., known as Medicare, Medicaid, or any other coverage under a state or federal government plan.
342 (j) Disclosure of nonquantitative treatment limitation parity compliance analyses.
343 (1) A health care provider, a current covered person, or a prospective covered person may request of a
344 carrier any nonquantitative treatment limitation parity compliance analysis (NQTL parity compliance analysis)
345 that a carrier is required to have completed by 29 U.S.C. Sec. 1185a or 42 U.S.C. Sec. 37 300gg-26.
346 (2) Within 30 days of receiving a request pursuant to paragraph (j)(1) of this section, a carrier must
347 provide a copy of the requested NQTL parity compliance analysis to the requesting person, free of charge.
348 (3) Every health benefit plan policy and mental health disorder and substance use disorder provider
349 contract must disclose the following information:
350 a. A notification of the right to request an NQTL parity compliance analysis.
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351 b. Instructions for how to request an NQTL parity compliance analysis.
352 (k) The provisions published at 89 Federal Register 77586 et seq. on September 23, 2024, are incorporated into
353 this section in their entirety and apply as state law. This incorporation remains in effect notwithstanding any subsequent
354 amendment, repeal, or nonenforcement of the referenced federal provisions.
355 (l) Under all health benefit plans delivered or issued for delivery in this State, if a carrier provides any benefits for
356 a mental health disorder or substance use disorder in any classification of benefits, it must provide meaningful benefits for
357 that mental health disorder or substance use disorder in every classification in which medical or surgical benefits are
358 provided. For purposes of this subsection, “core treatments" means standard treatments or courses of treatment, therapy,
359 service, or intervention indicated by generally accepted standards of mental health disorder or substance use disorder care.
360 For purposes of this subsection, whether the benefits provided are considered "meaningful benefits" is determined in
361 comparison to the benefits provided for medical conditions and surgical procedures in the classification and requires, at a
362 minimum, coverage of benefits for that condition or disorder in each classification in which the carrier provides benefits for
363 one or more medical conditions or surgical procedures. A carrier does not provide meaningful benefits under this
364 subsection unless it provides benefits for core treatments for that condition or disorder in each classification in which the
365 carrier provides benefits for core treatments for one or more medical conditions or surgical procedures. If there is no core
366 treatment for a covered mental health disorder or substance use disorder with respect to a classification, the carrier is not
367 required to provide benefits for core treatments for such condition or disorder in that classification, but must provide
368 benefits for such condition or disorder in every classification in which medical or surgical benefits are provided.
369 (m) For the purposes of determining comparability and stringency for nonquantitative treatment limitations, a
370 carrier may not rely upon discriminatory factors or evidentiary standards to design a nonquantitative treatment limitation to
371 be imposed on mental health disorder or substance use disorder benefits. A factor or evidentiary standard is discriminatory
372 if the information, evidence, sources, or standards on which the factor or evidentiary standard are based are biased or not
373 objective in a manner that discriminates against mental health disorder or substance use disorder benefits as compared to
374 medical or surgical benefits.
375 (n) A nonquantitative treatment limitation applicable to mental health disorder or substance use disorder benefits
376 in a classification may not be more restrictive than the predominant nonquantitative treatment limitation applied to
377 substantially all medical or surgical benefits in the classification. To test compliance with this subsection, a carrier shall
378 collect and evaluate relevant data in a manner reasonably designed to assess the impact of the nonquantitative treatment
379 limitation on relevant outcomes related to access to mental health disorder or substance use disorder benefits and medical or
380 surgical benefits and carefully consider the impact as part of the plan’s evaluation. As part of its evaluation, the carrier may
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381 not disregard relevant outcomes data that it knows or reasonably should know suggest that a nonquantitative treatment
382 limitation is associated with material differences in access to mental health disorder or substance use disorder benefits as
383 compared to medical or surgical benefits. To the extent the relevant data evaluated suggest that the nonquantitative
384 treatment limitation contributes to material differences in access to mental health disorder or substance use disorder benefits
385 as compared to medical or surgical benefits in a classification, those differences will be considered a strong indicator of a
386 noncompliant nonquantitative treatment limitation. Where the relevant data suggest that the nonquantitative treatment
387 limitation contributes to material differences in access to mental health disorder or substance use disorder benefits as
388 compared to medical or surgical benefits in a classification, the carrier must take reasonable action to address the material
389 differences to ensure compliance and must document the actions that have been or are being taken by the carrier to address
390 material differences in access to mental health disorder or substance use disorder benefits, as compared to medical or
391 surgical benefits.
392 Section 2. Amend Chapter 35, Title 18 of the Delaware Code by making deletions as shown by strike through and
393 insertions as shown by underline as follows and by redesignating accordingly:
394 § 3571U. Mental Health Parity and Addiction Equity Act reporting requirements.
395 (a) Each health insurer offering group health insurance coverage that provides mental illness and drug and alcohol
396 dependencies mental health disorder or substance use disorder benefits must submit a report to the Delaware Health
397 Information Network and Commissioner on or before July 1 2019, and any year thereafter during which the insurer makes
398 significant changes to how it designs and applies its medical management protocols; the report must contain the following
399 information:
400 (1) A description of the process used to develop or select the medical necessity utilization review criteria
401 for mental illness and drug and alcohol dependencies mental health disorder and substance use disorder benefits
402 and the process used to develop or select the medical necessity utilization review criteria for medical and surgical
403 benefits.
404 (2) Identification of all nonquantitative treatment limitations (NQTLs) that are applied to mental illness
405 and drug and alcohol dependencies mental health disorder or substance use disorder benefits and medical and
406 surgical benefits within each classification of benefits; there may be no separate NQTLs that apply to mental
407 illness and drug and alcohol dependencies mental health disorder or substance use disorder benefits that do not
408 also apply to medical and surgical benefits within any classification of benefits.
409 (3) The results of an analysis that demonstrates that for the medical necessity utilization review criteria
410 described in paragraph (1) of this section subsection and for each NQTL identified in paragraph (2) of this section
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411 subsection, as written and in operation, the processes, strategies, evidentiary standards, or other factors used in
412 applying the medical necessity criteria and each NQTL to mental illness and drug and alcohol dependencies
413 mental health disorder or substance use disorder benefits within each classification of benefits are comparable to,
414 and are applied no more stringently than, the processes, strategies, evidentiary standards, or other factors used in
415 applying the medical necessity criteria and each NQTL to medical and surgical benefits within the corresponding
416 classification of benefits; at a minimum, the results of the analysis shall:
417 a. Identify the factors used to determine that an NQTL will apply to a benefit, including factors
418 that were considered but rejected.
419 b. Identify and define the specific evidentiary standards used to define the factors and any other
420 evidence relied upon in designing each NQTL.
421 c. Provide the comparative analyses, including the results of the analyses, performed to
422 determine that the processes and strategies used to design each NQTL, as written, for mental illness and
423 drug and alcohol dependencies mental health disorder or substance use disorder benefits are comparable
424 to, and are applied no more stringently than, the processes and strategies used to design each NQTL, as
425 written, for medical and surgical benefits.
426 d. Provide the comparative analyses, including the results of the analyses, performed to
427 determine that the processes and strategies used to apply each NQTL, in operation, for mental illness and
428 drug and alcohol dependencies mental health disorder or substance use disorder benefits are comparable
429 to, and applied no more stringently than, the processes or strategies used to apply each NQTL, in
430 operation, for medical and surgical benefits.
431 e. Disclose the specific findings and conclusions reached by the insurer that the results of the
432 analyses above indicate that the carrier is in compliance with this section and the Mental Health Parity
433 and Addiction Equity Act of 2008 [P.L. 104-204] and its implementing regulations, which includes 45
434 C.F.R. 146.136 and any other related federal regulations found in the Code of Federal Regulations.
435 (4) Any information submitted to the Delaware Health Information Network and Commissioner by a
436 carrier that is considered proprietary by the carrier a trade secret or confidential or privileged commercial or
437 financial information shall not be made public record.
438 (5) The Insurance Commissioner shall retain the authority to enforce the provisions of this section. The
439 provisions of this section shall not give rise to a private cause of action.
440 (b) Disclosure of nonquantitative treatment limitation parity compliance analyses.
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441 (1) A health care provider, a current covered person, or a prospective covered person may request of a
442 carrier any nonquantitative treatment limitation parity compliance analysis (NQTL parity compliance analysis)
443 that a carrier is required to have completed by 29 U.S.C. Sec. 1185a or 42 U.S.C. Sec. 37 300gg-26.
444 (2) Within 30 days of receiving a request pursuant to paragraph (b)(1) of this section, a carrier must
445 provide a copy of the requested NQTL parity compliance analysis to the requesting person, free of charge.
446 (3) Every health benefit plan policy and mental health disorder and substance use disorder provider
447 contract must disclose the following information:
448 a. A notification of the right to request an NQTL parity compliance analysis.
449 b. Instructions for how to request an NQTL parity compliance analysis.
450 (c) The provisions published at 89 Federal Register 77586 et seq. on September 23, 2024, are incorporated into
451 this section in their entirety and apply as state law. This incorporation remains in effect notwithstanding any subsequent
452 amendment, repeal, or nonenforcement of the referenced federal provisions.
453 (d) Under all health benefit plans delivered or issued for delivery in this State, if a carrier provides any benefits for
454 a mental health disorder or substance use disorder in any classification of benefits, it must provide meaningful benefits for
455 that mental health disorder or substance use disorder in every classification in which medical or surgical benefits are
456 provided. For purposes of this subsection, “core treatments" means standard treatments or courses of treatment, therapy,
457 service, or intervention indicated by generally accepted standards of mental health disorder or substance use disorder care.
458 For purposes of this subsection, whether the benefits provided are considered "meaningful benefits" is determined in
459 comparison to the benefits provided for medical conditions and surgical procedures in the classification and requires, at a
460 minimum, coverage of benefits for that condition or disorder in each classification in which the carrier provides benefits for
461 one or more medical conditions or surgical procedures. A carrier does not provide meaningful benefits under this
462 subsection unless it provides benefits for core treatments for that condition or disorder in each classification in which the
463 carrier provides benefits for core treatments for one or more medical conditions or surgical procedures. If there is no core
464 treatment for a covered mental health disorder or substance use disorder with respect to a classification, the carrier is not
465 required to provide benefits for core treatments for such condition or disorder in that classification, but must provide
466 benefits for such condition or disorder in every classification in which medical or surgical benefits are provided.
467 (e) For the purposes of determining comparability and stringency for nonquantitative treatment limitations, a
468 carrier may not rely upon discriminatory factors or evidentiary standards to design a nonquantitative treatment limitation to
469 be imposed on mental health disorder or substance use disorder benefits. A factor or evidentiary standard is discriminatory
470 if the information, evidence, sources, or standards on which the factor or evidentiary standard are based are biased or not
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471 objective in a manner that discriminates against mental health disorder or substance use disorder benefits as compared to
472 medical or surgical benefits.
473 (f) A nonquantitative treatment limitation applicable to mental health disorder or substance use disorder benefits in
474 a classification may not be more restrictive than the predominant nonquantitative treatment limitation applied to
475 substantially all medical or surgical benefits in the classification. To test compliance with this subsection, a carrier shall
476 collect and evaluate relevant data in a manner reasonably designed to assess the impact of the nonquantitative treatment
477 limitation on relevant outcomes related to access to mental health disorder or substance use disorder benefits and medical or
478 surgical benefits and carefully consider the impact as part of the plan’s evaluation. As part of its evaluation, the carrier may
479 not disregard relevant outcomes data that it knows or reasonably should know suggest that a nonquantitative treatment
480 limitation is associated with material differences in access to mental health disorder or substance use disorder benefits as
481 compared to medical or surgical benefits. To the extent the relevant data evaluated suggest that the nonquantitative
482 treatment limitation contributes to material differences in access to mental health disorder or substance use disorder benefits
483 as compared to medical or surgical benefits in a classification, those differences will be considered a strong indicator of a
484 noncompliant nonquantitative treatment limitation. Where the relevant data suggest that the nonquantitative treatment
485 limitation contributes to material differences in access to mental health disorder or substance use disorder benefits as
486 compared to medical or surgical benefits in a classification, the carrier must take reasonable action to address the material
487 differences to ensure compliance and must document the actions that have been or are being taken by the carrier to address
488 material differences in access to mental health disorder or substance use disorder benefits, as compared to medical or
489 surgical benefits.
490 § 3571X. Medication assisted treatment for drug and alcohol dependencies. Medications for mental health
491 disorders and substance use disorders.
492 (a) For purposes of this section, “medication-assisted treatment” means the use of U.S. Food and Drug
493 Administration-approved medications, in combination with counseling and behavioral therapies, to provide a whole patient
494 approach to the treatment of drug and alcohol dependencies.
495 (b) (a) If group health insurance coverage provides prescription medication benefits for the treatment of mental
496 illness and drug and alcohol dependencies a mental health disorder or substance use disorder, as defined by §3578 of this
497 title, a health insurer must place at least 1 formulation of a medication-assisted treatment each FDA-approved medication to
498 treat 1 or more substance use disorders, regardless of whether the prescription drug is formulary, non-formulary, or
499 excluded, on the lowest tier of the drug formulary developed and maintained by the carrier, including each of the following:
500 (1) Buprenorphine.
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501 (2) Naltrexone.
502 (3) Naloxone.
503 (4) A product containing both buprenorphine and naloxone.
504 (5) Disulfiram.
505 (6) Acamprosate.
506 (c) (b) A health insurer that provides coverage for prescription drugs must cover the fees associated with the
507 administration or dispensing of methadone dispensed at an opioid treatment program as defined under 42 C.F.R. § 8.2.
508 (d) (c) A health insurer shall provide benefits under this section as follows:
509 (1) Not impose a prior authorization requirement.
510 (2) Must authorize coverage of prescription medicine without imposing a step therapy requirement for at
511 least 1 formulation of each prescription medication for medication-assisted treatment FDA-approved medication to
512 treat 1 or more substance use disorders that is on each tier of the drug formulary developed and maintained by the
513 health insurer. A health insurer may impose a step therapy requirement for a prescription medication only to
514 require use of a therapeutically equivalent generic drug that is rated as therapeutically equivalent (AB-rated) by the
515 United States Food and Drug Administration and has the same active ingredient, dosage form, and strength as the
516 prescribed medication. Notwithstanding any step therapy requirement permitted under this subsection, a health
517 insurer shall authorize coverage of the prescribed dosage form or formulation of the prescribed medication when
518 the prescribed formulation is reasonably expected to provide clinical benefit for the covered person.
519 § 3578. Insurance coverage for serious mental illness mental health disorders and substance use disorders [For
520 application of this section, see 81 Del. Laws, c. 29, § 3].
521 (a) Definitions. — For the purposes of this section, the following words and phrases shall have the following
522 meanings:
523 (1) “ASAM criteria” means the latest version of comprehensive set of guidelines for placement,
524 continued stay, and transfer or discharge of patients individuals with addiction a primary diagnosis of a substance
525 use disorder established by the American Society of Addiction Medicine (“ASAM”) for use in determining
526 medically necessary treatment..
527 (3) “Drug and alcohol dependencies” means substance abuse disorder or the chronic, habitual, regular, or
528 recurrent use of alcohol, inhalants, or controlled substances as identified in Chapter 47 of Title 16.
529 (5) “Serious mental illness” means any of the following biologically based mental illnesses:
530 schizophrenia, bipolar disorder, obsessive-compulsive disorder, major depressive disorder, panic disorder,
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531 anorexia nervosa, bulimia nervosa, schizo affective disorder, and delusional disorder. The diagnostic criteria set
532 out in the most recent edition of the Diagnostic and Statistical Manual shall be utilized to determine whether a
533 beneficiary of a health benefit plan is suffering from a serious mental illness.
534 ( ) “Child and Adolescent Level of Care Utilization System / Service Intensity Instrument” or
535 “CALOCUS-CASII” means the latest version of comprehensive set of guidelines for placement, continued stay,
536 and transfer or discharge of children and adolescents aged 6 to 18 with a primary diagnosis of a mental health
537 disorder established by the American Association for Community Psychiatry (“AACP”) and the American
538 Academy of Child and Adolescent Psychiatry (“AACAP”).
539 ( ) “Early Childhood Service Intensity Instrument” or “ECSII” means the latest version of the service
540 planning tool established by AACAP for determination of the intensity of services for children and families with
541 emotional, behavioral, or developmental needs, including those who are experiencing environmental stressors that
542 may put them at risk for such problems.
543 ( ) “Emergency care” means care provided to treat a mental health disorder or substance use disorder that
544 meets the definition of an emergency medical condition as defined in § 3349 of this title.
545 ( ) “Generally accepted standards of mental health disorder and substance use disorder care” means
546 standards of care and clinical practice that are generally recognized by health care providers practicing in relevant
547 clinical specialties such as psychiatry, psychology, clinical social work, addiction medicine and counseling, and
548 behavioral health treatment. Valid, evidence-based sources reflecting generally accepted standards of mental
549 health disorder and substance use disorder care include published peer-reviewed scientific studies and medical
550 literature and clinical practice guidelines and other recommendations of nonprofit health care professional
551 associations.
552 ( ) “Level of Care Utilization System” or “LOCUS” means the latest version of comprehensive set of
553 guidelines for placement, continued stay, and transfer or discharge of adults over 18 years of age with a primary
554 diagnosis of a mental health disorder established by AACP.
555 ( ) “Medically necessary” means a service or product addressing the specific needs of a covered person,
556 for the purpose of screening, preventing, diagnosing, managing, or treating a mental health disorder or substance
557 use disorder, including minimizing the progression of a disorder or its symptoms, in a manner that is all of the
558 following:
559 a. In accordance with the generally accepted standards of mental health disorder and substance
560 use disorder care.
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561 b. Clinically appropriate in terms of type, frequency, extent, site, and duration.
562 c. Not primarily for the economic benefit of the carrier, purchaser, or for the convenience of the
563 covered person, treating physician, or other health care provider.
564 ( ) “Mental health disorders and substance use disorders” means a mental health disorder or substance use
565 disorder that falls under any of the diagnostic categories listed in the mental and behavioral disorders chapter of
566 the most recent edition of the World Health Organization’s International Statistical Classification of Diseases and
567 Related Health Problems, or that is listed in the most recent version of the American Psychiatric Association’s
568 Diagnostic and Statistical Manual of Mental Disorders, or the Diagnostic Classification of Mental Health and
569 Developmental Disorders of Infancy and Early Childhood.
570 ( ) "Nonprofit health care professional association" means a not-for-profit health care provider
571 professional association or specialty society that is generally recognized by clinicians practicing in the relevant
572 clinical specialty and that issues peer-reviewed guidelines, criteria, or other clinical recommendations developed
573 through a transparent process, including the American Psychiatric Association, American Psychological
574 Association, American Society of Addiction Medicine, American Academy of Child and Adolescent Psychiatry,
575 and American Association for Community Psychiatry.
576 ( ) "Urgent mental health disorder and substance use disorder care" means care that is delivered on an
577 expedited basis for the treatment of an acute mental health disorder or substance use disorder with symptoms of
578 sufficient severity pursuant to a determination by a licensed treating health-care provider, operating within the
579 health-care provider's scope of practice and professional expertise, that the failure to provide the service is likely to
580 result in serious, long-term health complications or a material deterioration in the covered person's or enrollee's
581 condition and prognosis.
582 ( ) “Utilization review” means reviewing and approving, modifying, delaying, or denying, requests by
583 health care providers, covered persons, or their authorized representatives for coverage of health care services,
584 based in whole or in part on medical necessity, or for out-of-network services required pursuant to subsection (f)
585 of this section.
586 ( ) “Utilization review criteria” means any criteria, standards, protocols, or guidelines used by a carrier to
587 conduct utilization review.
588 (b) Coverage of serious mental illness and drug and alcohol dependency. mental health disorders and substance
589 use disorders. —
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590 (1) a. Carriers shall provide coverage for serious mental illnesses and drug and alcohol dependencies in
591 all medically necessary services for mental health disorders or substance use disorders under all health benefit
592 plans delivered or issued for delivery in this State. Coverage for serious mental illnesses and drug and alcohol
593 dependencies mental health disorders and substance use disorders must provide all of the following:
594 1. Inpatient coverage for the diagnosis and treatment of drug and alcohol dependencies.
595 1. The levels of care described in the ASAM criteria, LOCUS, CALOCUS-CASII, and ECSII.
596 2. Unlimited medically necessary treatment services for drug and alcohol dependencies mental
597 health disorders and substance use disorders as required by the Mental Health Parity and Addiction
598 Equity Act of 2008 (29 U.S.C. § 1185a) and determined by the use of the full set of ASAM criteria, in all
599 of the following: ASAM criteria, LOCUS, CALOCUS-CASII, and ECSII, including all of the following
600 levels of care:
601 A. Treatment provided in residential settings.
602 B. Intensive outpatient programs.
603 C. Inpatient settings, including withdrawal management.
604 3. Emergency services to treat mental health disorders and substance use disorders, including
605 emergency transportation to an appropriate provider or facility for the purposes of stabilization, mobile
606 crisis response teams, crisis receiving and stabilization services, and other services necessary to screen,
607 evaluate, and stabilize an individual experiencing a mental health or substance use disorder emergency.
608 4. For purposes of paragraph (b)(1)a.3. of this section, mobile crisis response services provided
609 by a state-operated program or by a program authorized by the Division of Substance Abuse and Mental
610 Health are considered emergency services. A carrier shall reimburse a state-operated or state-authorized
611 mobile crisis program that submits claims for covered services consistent with this section. Nothing in
612 this section requires a carrier to establish or duplicate a mobile crisis delivery system where the State
613 operates or authorizes such services.
614 5. Nothing in this subsection requires a carrier to cover non-clinical placements or supports,
615 including foster care or recovery residences that are not licensed or certified as behavioral health
616 treatment programs under Delaware law; provided, however, that if a carrier provides coverage for such
617 services or settings, the carrier shall apply the requirements of this section to that coverage and shall
618 cover medically necessary clinical services, including services delivered in residential treatment settings,
619 as required under paragraph (b)(1)a.2. of this section.
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620 b. Subject to subsections (a) and (c) through (g) of this section, no carrier may issue for delivery,
621 or deliver, in this State any health benefit plan that does any of the following:
622 1. containing Contains terms that place a greater financial burden on an insured a
623 covered person for covered services provided in the diagnosis and treatment of a serious mental
624 illness and drug and alcohol dependency mental health disorder or substance use disorder than
625 for covered services provided in the diagnosis and treatment of any other illness or disease
626 covered by the health benefit plan. By way of example, such terms include deductibles, co-pays,
627 monetary limits, coinsurance factors, limits in the numbers of visits, limits in the length of
628 inpatient stays, durational limits or limits in the coverage of prescription medicines.
629 2. Discriminates, in its benefit design or implementation of its benefit design, against
630 covered persons because of their history of, present, or predicted mental health disorder or
631 substance use disorder.
632 (2) a. A health benefit plan that provides coverage for prescription drugs must provide coverage for the
633 treatment of serious mental illnesses and drug and alcohol dependencies mental health disorders and substance use
634 disorders that includes immediate access, without prior authorization, to a 5-day emergency supply of prescribed
635 medications covered under the health benefit plan for the medically necessary treatment services of serious mental
636 illnesses and drug and alcohol dependencies mental health disorders and substance use disorders where an
637 emergency medical condition, as defined in § 3565(e) of this title, exists, including a prescribed drug or
638 medication associated with the management of opioid withdrawal or stabilization, except where otherwise
639 prohibited by law.
640 b. Coverage of an emergency supply of prescribed medications must include medication for
641 opioid overdose reversal otherwise covered under the health benefit plan prescribed to a covered person.
642 c. Coverage provided under this paragraph (b)(2) of this section may be subject to copayments,
643 coinsurance, and annual deductibles that are consistent with those imposed on other benefits within the
644 health benefit plan and in compliance with the Mental Health Parity and Addiction Equity Act’s financial
645 requirements; provided, however, a health benefit plan must not impose an additional copayment or
646 coinsurance on a covered person who received an emergency supply of the same medication in the same
647 30-day period in which the emergency supply of medication was dispensed.
648 d. This paragraph (b)(2) of this section does not preclude the imposition of a copayment or
649 coinsurance on the initial emergency supply of medication in an amount that is less than the copayment or
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650 coinsurance otherwise applicable to a 30-day supply of such medication, provided that the total sum of
651 copayments or coinsurance for an entire 30-day supply of the medication does not exceed the copayment
652 or coinsurance otherwise applicable to a 30-day supply of such medication.
653 (c) Eligibility for coverage. — Subject to the limitations set forth in subsection (d) of this section, a health benefit
654 plan may condition coverage of services provided in the diagnosis and treatment of a serious mental illness and drug and
655 alcohol dependency mental health disorder or substance use disorder on any of the further requirements that the service or
656 services:
657 (1) Must be rendered by a mental health disorder or substance use disorder professional licensed or
658 certified by the State Board of Licensing, including, but not limited to, psychologists, psychiatrists, social workers
659 and such other mental health professionals, or a drug and alcohol counselor who has been certified by the
660 Delaware Certified Alcohol and Drug Counselors Certification Board, or in a mental health disorder or substance
661 use disorder facility licensed by the State or in a treatment facility approved by the Department of Health and
662 Social Services or the Bureau of Alcoholism and Drug Abuse as set forth in Chapter 22 of Title 16 or substantially
663 similar licensing entities in other states; . Nothing in this paragraph (c)(1) of this section affects a health benefit
664 plan’s obligation to cover medically necessary team-based services, including Coordinated Specialty Care and
665 Assertive Community Treatment, of a mental health disorder or substance use disorder so long as such services are
666 supervised by a licensed or certified professional.
667 (2) Must be medically necessary; and necessary.
668 (3) Must be covered services subject to any administrative requirements of the health benefit plan.
669 A health benefit plan may further condition coverage of services provided in the diagnosis and treatment
670 of a serious mental illness and drug and alcohol dependency mental health disorder or substance abuse disorder in
671 the same manner and to the same extent as coverage for all other illnesses and diseases is conditioned. Such
672 conditions may include, by way of example and not by way of limitation, precertification and referral
673 requirements.
674 (d) Benefit management. —
675 (1) A carrier may, directly or by contract with another qualified entity, manage the benefit prescribed by
676 subsection (b) of this section in order to limit coverage of services provided in the diagnosis and treatment of a
677 mental health disorder or substance use disorder serious mental illness and drug and alcohol dependency to those
678 services that are deemed medically necessary as follows:
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679 a. The management of benefits for serious mental illnesses and drug and alcohol dependencies
680 mental health disorders or substance use disorders may be by methods used for the management of
681 benefits provided for other medical conditions, or may be by management methods unique to mental
682 health benefits. Such may include, by way of example and not limitation, pre-admission screening, prior
683 authorization of services, including utilization review and the development and monitoring of treatment
684 plans.
685 b. A carrier may not impose precertification, prior authorization, pre-admission screening, or
686 referral requirements for the diagnosis and medically necessary treatment services of mental health
687 disorders or substance use disorders, including in-patient treatment, of drug and alcohol dependencies.
688 c. The benefit prescribed by paragraph (b)(1) of this section may not be subject to concurrent
689 utilization review during the first 14 days of any inpatient admission to a facility approved by a nationally
690 recognized health-care accrediting organization or the Division of Substance Abuse and Mental Health,
691 30 days of intensive outpatient program treatment, or 5 days of inpatient withdrawal management,
692 provided that the facility notifies the carrier of both the admission and the initial treatment plan within 48
693 hours of the admission. The facility shall perform daily clinical review of the patient, including the
694 periodic consultation with the carrier to ensure that the facility is using the evidence-based and peer
695 reviewed clinical review tool utilized by the carrier which is designated by the American Society of
696 Addiction Medicine (“ASAM”) or, if applicable, any state-specific ASAM criteria, and appropriate to the
697 age of the patient, and conduct periodic assessments using ASAM, LOCUS, CALOCUS-CASII, or
698 ECSII, as appropriate to the covered person’s age and primary diagnosis, to determine continued stay,
699 transfer, or discharge to ensure that the inpatient treatment is medically necessary for the patient covered
700 person.
701 d. Any utilization review of treatment provided under paragraph (b)(1) of this section may
702 include a review of all services non-emergency care provided during such inpatient treatment, including
703 all services provided during the first 14 days of such inpatient treatment, 30 days of intensive outpatient
704 program treatment, or 5 days of inpatient withdrawal management; provided, however, the carrier may
705 only deny coverage for any portion of the initial 14-day inpatient treatment on the basis that such
706 treatment non-emergency care was not medically necessary if such inpatient treatment was contrary to the
707 evidence-based and peer reviewed clinical review tool utilized by the carrier which is designated by
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708 ASAM or, if applicable, any state-specific ASAM criteria. ASAM criteria, LOCUS, CALOCUS-CASII,
709 or ECSII.
710 e. A carrier must ensure that a covered person does not have any financial obligation to the
711 facility an in-network provider for any treatment under paragraph (b)(1) of this section other than any
712 copayment, coinsurance, or deductible otherwise required under the health benefit plan.
713 f. Utilization review and utilization review criteria may not deviate from current generally
714 accepted standards of mental health disorder and substance use disorder care. In conducting utilization
715 review, a carrier shall apply the relevant, age-appropriate criteria or guidelines set forth in the most recent
716 versions of treatment criteria or guidelines developed by the nonprofit professional association for the
717 relevant clinical specialty and shall not apply different, additional, conflicting, or more restrictive
718 utilization review criteria. In conducting utilization review permitted by this subsection relating to service
719 intensity or level of care placement, continued stay, or transfer or discharge, the carrier shall apply the
720 ASAM criteria, LOCUS, CALOCUS-CASII, or ECSII, as applicable, and shall authorize placement at
721 the service intensity and level of care consistent with that criteria. If the carrier’s application of the
722 applicable patient placement criteria is not consistent with the service intensity or level of care placement
723 requested by the covered person or the covered person’s provider, any adverse benefit determination
724 notice must include full details of the carrier’s assessment under the applicable criteria to the provider and
725 the covered person.
726 g. Notwithstanding paragraph (d)(1)f. of this subsection, the Commissioner, in consultation with
727 the Division of Substance Abuse and Mental Health, may designate a specific edition or version of the
728 ASAM criteria, LOCUS, CALOCUS-CASII, ECSII, or other nonprofit health care professional
729 association treatment criteria or guidelines required under paragraph g. of this subsection during a
730 transition from one edition or version to a subsequent edition or version to ensure alignment with state
731 licensure standards.
732 (2) This section shall not be interpreted to require a carrier to employ the same benefit management
733 procedures for serious mental illnesses and drug and alcohol dependencies that are employed for the management
734 of other illnesses or diseases covered by the health benefit plan or to require parity or equivalence in the rate, or
735 dollar value of, claims denied.
736 (e) Exclusions. —
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737 This section shall does not apply to plans or policies not within the definition of health benefit plan, as set out in
738 subsection (a) of this section.
739 (f) Out of network services. Where a health benefit plan provides benefits for the diagnosis and treatment of
740 serious mental illnesses and drug and alcohol dependencies within a network of providers and where a beneficiary of the
741 health benefit plan obtains services consisting of diagnosis and treatment of a serious mental illness and drug and alcohol
742 dependency outside of the network of providers, the provisions of this section shall not apply. The health benefit plan may
743 contain terms and conditions applicable to out of network services without reference to the provisions of this section.
744 (f) Availability of in-network services.
745 (1) A carrier shall maintain an adequate network in each of its health benefit plans to ensure timely access
746 to non-urgent mental health disorder and substance use disorder services within 10 business days and to urgent
747 mental health disorder and substance use disorder services within 24 hours. If a covered person requests assistance
748 from the carrier to obtain medically necessary services and the carrier fails to secure the delivery of those services
749 from an appropriate in-network provider within applicable network adequacy standards established under state or
750 federal law, the carrier shall, in a timely manner, execute a single-case agreement that allows the covered person to
751 receive medically necessary services, including any follow-up services to complete a course of treatment, from an
752 appropriate out-of-network provider. If the carrier identifies an appropriate in-network provider who can deliver
753 medically necessary services within the applicable network adequacy standards and the covered person declines
754 those services, the carrier has satisfied its obligation under this subsection. For purposes of this subsection,
755 "appropriate provider" includes providers who have the training and experience necessary to provide age- and
756 condition-appropriate services to treat the covered person under the requirements of this section.
757 (2) The single-case agreement executed pursuant to this subsection shall do all of the following:
758 a. Reimburse the out-of-network provider for covered services at a rate negotiated by the
759 provider and the carrier.
760 b. Apply no greater cost-sharing requirements than would apply if the services were provided by
761 an in-network provider, with such cost-sharing amounts accruing toward the in-network deductible and
762 out-of-pocket maximum.
763 c. Specify the duration, scope, and services covered under the agreement.
764 d. Treat services provided pursuant to the agreement as covered services under the health benefit
765 plan for the duration of the agreement.
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766 e. Specify that the provider shall accept payment from the carrier and the covered person’s in-
767 network cost sharing as payment in full.
768 (3) If the Commissioner determines that the carrier failed to execute a single-case agreement under this
769 section in a timely manner, the Commissioner may order the carrier to hold the covered person harmless for any
770 costs in excess of in-network cost-sharing that the covered person incurred to obtain medically necessary services
771 from an out-of-network provider.
772 (4) A carrier shall disclose, in the health benefit plan policy and on the carrier’s publicly accessible
773 website, a covered person’s rights under this subsection and the process by which a covered person may request
774 assistance from the carrier in obtaining medically necessary services from an appropriate in-network provider within
775 applicable network adequacy standards, including a telephone number and a dedicated webpage or electronic
776 submission mechanism to make such requests, and the circumstances under which the carrier must enter into a
777 single-case agreement with an out-of-network provider, with no greater cost-sharing than would apply if the
778 services were provided by an in-network provider.
779 (g) Nothing in this section shall be construed to: limit
780 (1) Limit or reduce any benefit, entitlement, or coverage conferred by § 3570A of this title including, but
781 not limited to, provider and service eligibility.
782 (2) Prohibit exclusions for experimental or investigational services that comply with the parity
783 requirements of § 3571U of this title.
784 (3) Require a carrier to switch to the latest version of the ASAM criteria, LOCUS, CALOCUS-CASII, or
785 ECSII criteria, or diagnostic manuals or classifications during a plan year when a new version of the criteria or
786 manuals is released after a plan year has begun.
787 Section 3. Effective Date. This Act applies to all health insurance policies, contracts, or certificates issued,
788 renewed, modified, altered, amended or reissued in this state after December 31, 2027.
SYNOPSIS
Approximately one in five adults report experiencing a mental health condition. At the same time, many
individuals continue to face delays or barriers when trying to access care, even when they have insurance coverage. Delays,
denials, or truncation of treatment leave families and their doctors battling for coverage instead of focusing on treatment
and recovery. Families must pay out of pocket for care, on top of premiums for coverage they are not receiving. Further,
Delawareans are five times more likely to go out-of-network for mental health care than for primary care, resulting in
higher costs.
This Act, known as the Fair Standards in Mental Health Care Act, builds on previous work to advance mental
health parity and aims to ensure patients with private insurance can access timely, evidence-based mental health and
substance use disorder care in Delaware. This Act supports improved access to mental health disorder and substance use
disorder treatment by:
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1. Adding and refining key terms, including definitions of mental health disorders and substance use disorders,
level of care criteria, medically necessary treatment, utilization review and utilization review criteria to ensure consistency
with widely accepted clinical standards of treatment and service intensity determination. This bill forges gold-standard
clinical guidelines through requiring insurers to use transparent, evidence-based standards from independent experts,
including the American Academy of Child and Adolescent Psychiatry.
2. Requiring coverage for all medically necessary treatment, including emergency services and all clinically
appropriate levels of care. This bill ends prior authorization delays for mental health and guarantees emergency mental
health coverage, just as Delaware already does for addiction treatment.
3. Requiring at least one formulation of certain FDA-approved medications to treat substance use disorders to be
placed on the lowest-cost tier of drug formularies.
4. Prohibiting discrimination against individuals with current or predicted mental health disorders or substance use
disorders.
5. Requiring carriers to arrange coverage of medically necessary out-of-network services without additional cost to
the enrollee if in-network options are unavailable within applicable network access standards, thus ensuring real network
access.
6. Removing language currently in the code barring a private right of action for violations of 18 Del. Code § 3343.
In addition, the Act clarifies that carriers must provide nonquantitative treatment limitation parity analysis (NQTL parity
analysis) that they are required to have completed under federal law to health care providers and current and prospective
covered persons, free of charge, upon request.
This Act applies to individual health insurance policies under Chapter 33 of Title 18 and group and blanket health
insurance policies under Chapter 35 of Title 18. This Act applies to all policies, contracts, or certificates issued, renewed,
modified, altered, amended, or reissued after December 31, 2027.
This Act also makes technical corrections to conform existing law to the standards of the Delaware Legislative
Drafting Manual.
Author: Senator Townsend
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4761530003Every fact on this page links to its source, starting with the official bill record.