§ 20-3502 — Compliance with federal law; report

A. Each health care insurer that issues a health plan in this state shall comply with the mental health parity and addiction equity act.

B. After January 1, 2022, on a date specified by the director, each health care insurer that issues a health plan in this state shall submit a report to the department for each fully insured product network type the health care insurer issues. If the health care insurer determines that the information to be reported varies by network or plan, or varies in the individual, small group or large group market, the health care insurer must submit a report for each variation. Each report must do the following:

1. Describe the process that is used to develop or select the medical necessity criteria for mental health and substance use disorder benefits and the process used to develop or select the medical necessity criteria for medical and surgical benefits.

2. Identify all nonquantitative treatment limits that are applied to mental health and substance use disorder benefits and all nonquantitative treatment limits that are applied to medical and surgical benefits within each classification of benefits.

3. Demonstrate through analysis that for any nonquantitative treatment limit applied to mental health and substance use disorder benefits in a classification of benefits, as written and in operation, any process, strategy, evidentiary standard or other factor used in applying the nonquantitative treatment limit to mental health and substance use disorder benefits in the classification are comparable to, and applied not more stringently than, any process, strategy, evidentiary standard or other factor used in applying the treatment limit for medical and surgical benefits in the classification.

C. In addition to analyzing the reports prescribed in subsection B of this section, the department shall also evaluate health plan compliance with the standards related to financial requirements and quantitative treatment limits described in this section. The department shall perform this analysis during its review of required health care insurer form filings, but may also require a health care insurer to submit additional data relating to its methods for complying with financial requirements and quantitative treatment limit standards. The department may collect and analyze data for each health care insurer's large group plans through a separate, consolidated report.

D. The health plan may not apply any financial requirement or quantitative treatment limit to mental health and substance use disorder benefits in any classification that is more restrictive than the predominant financial requirement or quantitative treatment limit of that type applied to substantially all medical and surgical benefits in the same classification, unless the requirement or treatment limit is modified by one of the following exceptions:

1. Multitiered prescription drug benefits. If a health plan applies different levels of financial requirements to different tiers of prescription drug benefits that are based on reasonable factors determined in accordance with the requirements for nonquantitative treatment limits and without regard to whether a drug is generally prescribed with respect to medical and surgical benefits or with respect to mental health or substance use disorder benefits, the health plan satisfies the parity requirements of this section with respect to prescription drug benefits. For the purposes of this paragraph, "reasonable factors" include cost, efficacy, generic versus brand name and mail order versus pharmacy pick up.

2. Multiple network tiers. If a health plan provides benefits through multiple tiers of in-network providers, including an in-network tier of preferred providers with more generous cost sharing to participants than a separate in-network tier of participating providers, the health plan may divide its benefits provided on an in-network basis into subclassifications that reflect network tiers, if the tiering is based on reasonable factors determined in accordance with the requirements for nonquantitative treatment limits and without regard to whether a provider provides services with respect to medical and surgical benefits or mental health or substance use disorder benefits in any subclassification that is more restrictive than the predominant financial requirement or treatment limit that applies to substantially all medical and surgical benefits in the subclassification.

3. Subclassifications allowed for office visits that are separate from other outpatient services. For the purposes of applying the financial requirements and treatment limits prescribed by this section, a health plan may divide its benefits provided on an outpatient basis into the two subclassifications described in this paragraph. After the subclassifications are established, the health plan or health care insurer may not impose any financial requirement or quantitative treatment limit on mental health or substance use disorder benefits in any subclassification that is more restrictive than the predominant financial requirement or quantitative treatment limit that applies to substantially all medical and surgical benefits in the subclassification. Subclassifications for generalists and specialists are prohibited. Only the following two subclassifications are allowed under this paragraph:

(a) Office and physician visits.

(b) All other outpatient items and services, including outpatient surgery, facility charges for day treatment centers, laboratory charges or other similar medical items.

E. A health insurer shall file the report required by subsection B of this section once every three years. In years in which the report required by subsection B of this section is not required to be filed, the health care insurer shall file a summary of changes made to the medical necessity criteria and nonquantitative treatment limits and a written attestation that specifies that the health care insurer is in compliance with the mental health parity and addiction equity act. The department may require the health care insurer to respond to additional questions that are related to the summary of changes or to supply additional data to verify compliance. Three years after the health care insurer submits an original report required by subsection B of this section or an updated or refiled report described in this subsection, the health care insurer may either:

1. File an updated report.

2. Resubmit the health care insurer's currently filed report if the health care insurer files a written attestation to the department that specifies that there have been no changes.

F. Except as otherwise provided in this section, if a health care insurer provided the information required by this section in an existing filing or report, the department may not require the health care insurer to submit any additional filing or report. The department is not prohibited from otherwise requesting information or data that is necessary to verify compliance with the mental health parity and addiction equity act or this chapter. The department shall analyze the information required by this section that the health care insurer previously submitted in an existing filing or report to determine compliance with the report required by this section. The department may establish by rule the terms regarding any required resubmittal of information.

G. All documents, reports or other materials provided to the director pursuant to this section are confidential and are not subject to disclosure. Section 20-157.01, subsection B applies to this section.