Current through Register Vol. XLI, No. 38, September 20, 2024
5.1.
An insurer or carrier shall comply with the non-quantitative treatment limitation
requirements specified in
45 CFR
§
146.136(c)(4), or any
successor regulation as adopted by the Legislature through subsequent amendment to
this rule, regarding any limitations that are not expressed numerically but
otherwise limit the scope or duration of benefits for treatment, which in addition
to the limitations and examples listed in
45 CFR
§
146.136(c)(4)(ii) and
(c)(4)(iii), or any successor regulation, as
adopted by the Legislature through subsequent amendment to this rule, and 78 FR
68246, include the methods by which the carrier establishes and maintains its
provider network and responds to deficiencies in the ability of its networks to
provide timely access to care.
5.2. An
insurer or carrier shall not apply any non-quantitative treatment limitation to
benefits for behavioral health, mental health, and substance use disorders that are
not applied to medical/surgical benefits within the same classifications of
benefits. Specifically, an insurer or carrier shall not impose a non-quantitative
treatment limitation with respect to behavioral, mental health, and substance use
disorder services in any classification unless, under the terms of the coverage as
written and in operation, any processes, strategies, evidentiary standards, or other
factors used in applying the non-quantitative treatment limitation to behavioral,
mental health, or substance use disorder services 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 medical/surgical benefits in
the classification.
5.3.
Non-quantitative treatment limitations include, but are not limited to:
5.3.1. Medical management standards limiting or
excluding benefits based on:
5.3.1.a. Medical
necessity or medical appropriateness; or
5.3.1.b. Whether the treatment is experimental or
investigational.
5.3.2. Step
therapy or fail-first protocols;
5.3.3.
Exclusions based on failure to complete a course of treatment;
5.3.4. Restrictions based on:
5.3.4.a. Geographic location;
5.3.4.b. Facility type;
5.3.4.c. Provider specialty; and
5.3.4.d. Other criteria that limit the scope or
duration of benefits.
5.3.5.
Formulary design for prescription drugs;
5.3.6. Network tier design (when the plan has
multiple network tiers); and
5.3.7.
Standards for provider admission to a network, including reimbursement
rates.
5.4. Allowable
Non-Quantitative Treatment Limitations
5.4.1. An
insurer or carrier may utilize the following non-exhaustive standards when applying
non-quantitative treatment limitations:
5.4.1.a.
Medical management standards may be used, as long as the criteria are comparable,
and applied no more stringently than for behavioral, mental health, and substance
use disorder benefits than for medical/surgical benefits;
5.4.1.b. Formulary design or formulary management
standards may be used, as long as the criteria used for behavioral, mental health,
and substance use disorder benefits are comparable, and applied no more stringently
than for medical/surgical benefits; and
5.4.1.c. Network design or network management
standards to add or remove providers from the network may be used, as long as the
criteria used for behavioral, mental health, and substance use disorder benefits are
comparable, and applied no more stringently than for medical/surgical benefits that
comply with state network adequacy requirements.
5.5. Non-Quantitative Treatment Limitation
Prohibitions
5.5.1. Insurers or carriers shall not
use the following medical management standards when applying limitations to
behavioral, mental health, and substance use disorder benefits:
5.5.1.a. The insurer or carrier routinely approves
a certain number of days without a treatment plan for medical/surgical inpatient
services, but approves, on a routine basis, a lesser number of days without a
treatment plan for inpatient behavioral, mental health, and substance use
disorders.
5.5.1.b. The insurer or
carrier applies concurrent review to inpatient stays with various lengths of stay
due to the medical condition, but reviews all behavioral, mental health, and
substance use disorder inpatient stays using a more restrictive review criteria,
reviewing the stay more frequently in all cases than commonly used for
medical/surgical benefits.
5.5.1.c.
Location of Services
5.5.1.c.1. The insurer or
carrier allows for out-of-state treatment of medical/surgical services, but does not
permit out-of-state treatment for behavioral, mental health, and substance use
disorder services; or
5.5.1.c.2. Permits
access to a non-network hospital for medical/surgical services, but does not permit
access to a non-network hospital for behavioral, mental health, and substance use
disorders, when the plan covers non-network services.
5.5.1.d. The insurer or carrier does not apply a
payment reduction penalty to outpatient medical/surgical services that do not have
prior authorization, but applies a penalty to all outpatient behavioral, mental
health, and substance use disorder benefits when no prior authorization has been
obtained.
5.5.1.e. Employee Assistance
Programs (Group Plans Only)
5.5.1.e.1. The insurer
or carrier requires that the member utilize an Employee Assistance Program prior to
utilizing behavioral, mental health, and substance use disorder benefits under a
group plan, but does not require the member to utilize an Employee Assistance
Program for any medical/surgical benefits prior to utilizing the group plan.
5.6.
Insurers and carriers shall not use the following pharmacy benefit network designs
when applying limitations to behavioral, mental health, and substance use disorder
benefits:
5.6.1. Insurer or carrier formulary
design for coverage of prescription drugs for medical/surgical conditions is based
on FDA approval, clinical studies, peer-reviewed medical literature, recommendations
of experts with necessary training and experience and other medical decision
criteria which are routinely provided, whereas the exclusion of behavioral, mental
health, and substance use disorder prescription drugs is only based on the side
effects reported as a part of clinical studies.
5.6.2. An insurer or carrier regularly provides
coverage for medical/surgical prescription drugs on all four (4) tiers of a four (4)
tier formulary design, but places all prescription drugs for the treatment of
behavioral, mental health, and substance use disorders on the two (2) highest tiers,
without regard to it being generic, preferred brand name or non-preferred brand
name.
5.7. Insurers or
carriers shall not use the following network designs when applying limitations to
behavioral, mental health, and substance use disorder benefits:
5.7.1. The insurer or carrier regularly allows
licensed, non-M.D. providers into the network for medical/surgical benefits while
not regularly allowing licensed, non-M.D. providers into the network who primarily
treat behavioral, mental health, or substance use disorders.
5.7.2. The insurer or carrier regularly negotiates
with medical/surgical providers based on the rates for behavioral, mental health,
and substance use disorder providers.
