§ 15-144

(a) (1) In this section the following words have the meanings indicated.

(2) “Carrier” means:

(i) an insurer that holds a certificate of authority in the State and provides health insurance in the State;

(ii) a health maintenance organization that is licensed to operate in the State;

(iii) a nonprofit health service plan that is licensed to operate in the State; or

(iv) any other person or organization that provides health benefit plans subject to State insurance regulation.

(3) “Health benefit plan” means:

(i) for a large group or blanket plan, a health benefit plan as defined in § 15–1401 of this title;

(ii) for a small group plan, a health benefit plan as defined in § 15–1201 of this title;

(iii) for an individual plan:

1. a health benefit plan as defined in § 15–1301(l) of this title; or

2. an individual health benefit plan as defined in § 15–1301(o) of this title;

(iv) short–term limited duration insurance as defined in § 15–1301(s) of this title; or

(v) a student health plan as defined in § 15–1318(a) of this title.

(4) “Medical/surgical benefits” has the meaning stated in 45 C.F.R. § 146.136(a) and 29 C.F.R. § 2590.712(a).

(5) “Mental health benefits” has the meaning stated in 45 C.F.R. § 146.136(a) and 29 C.F.R. § 2590.712(a).

(6) “Nonquantitative treatment limitation” means treatment limitations as defined in 45 C.F.R. § 146.136(a) and 29 C.F.R. § 2590.712(a).

(7) (i) “Parity Act” means the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, as amended.

(ii) “Parity Act” includes 45 C.F.R. § 146.136, 29 C.F.R. § 2590.712, and any other related federal regulations found in the Code of Federal Regulations to implement or enforce the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008.

(8) “Parity Act classification” means:

(i) inpatient in–network benefits;

(ii) inpatient out–of–network benefits;

(iii) outpatient in–network benefits;

(iv) outpatient out–of–network benefits;

(v) prescription drug benefits; and

(vi) emergency care benefits.

(9) “Product” has the meaning stated in § 15–1309(a)(3) of this title.

(10) “Substance use disorder benefits” has the meaning stated in 45 C.F.R. § 146.136(a) and 29 C.F.R. § 2590.712(a).

(b) This section applies to a carrier that delivers or issues for delivery a health benefit plan in the State.

(c) (1) Each carrier subject to this section shall:

(i) for each Parity Act classification, identify all nonquantitative treatment limitations that are applied to mental health benefits, substance use disorder benefits, and medical/surgical benefits;

(ii) in accordance with the Parity Act, perform and document comparative analyses of the design and application of all nonquantitative treatment limitations imposed on mental health benefits and substance use disorder benefits;

(iii) provide the comparative analysis for each nonquantitative treatment limitation requested by the Commissioner within:

1. 15 working days after a written request; or

2. if adopted by the federal government, less than 15 working days to align with the federal rule or regulation;

(iv) within 30 days after a written request, provide the comparative analysis for each nonquantitative treatment limitation and related in operation data analysis, if available and requested by a member in accordance with the Parity Act disclosure requirements or, for members with individual plans, in accordance with subsection (e)(7) of this section; and

(v) submit the reports required under paragraph (2) of this subsection.

(2) On or before July 1, 2024, and every 2 years thereafter, each carrier subject to this section shall submit a report to the Commissioner on each product offered by the carrier in the individual, small, and large group markets to demonstrate the carrier’s compliance with the Parity Act.

(3) The report submitted under paragraph (2) of this subsection shall include the following information:

(i) all nonquantitative treatment limitation information required under the Parity Act, subsection (d) of this section, and any State regulations for the products identified under paragraph (2) of this subsection;

(ii) the results of a comparative analysis conducted by the carrier on not fewer than five nonquantitative treatment limitations selected by the Commissioner in accordance with paragraph (5) of this subsection; and

(iii) subject to paragraph (4) of this subsection, a statement, signed by a corporate officer, attesting that, for each product identified under paragraph (2) of this subsection, the selected nonquantitative treatment limitations and the processes, strategies, evidentiary standards, or other factors used in designing and applying the selected nonquantitative treatment limitations to mental health benefits, substance use disorder benefits, and medical/surgical benefits are the same for all plans within the product, as written and in operation.

(4) If, for any plan within a product identified under paragraph (2) of this subsection, the processes, strategies, evidentiary standards, or other factors used in designing and applying the selected nonquantitative treatment limitations to mental health benefits, substance use disorder benefits, or medical/surgical benefits are different, as written or in operation, from the other plans within the product:

(i) the statement required under paragraph (3)(iii) of this subsection shall note the exception and identify the plan; and

(ii) the carrier shall submit a separate comparative analysis for the selected nonquantitative treatment limitations for the plan.

(5) (i) In selecting the nonquantitative treatment limitations required to be included for each reporting period, the Commissioner:

1. shall prioritize the nonquantitative treatment limitations identified by the Commissioner as having the greatest impact on member access to care;

2. shall review the same subset of nonquantitative treatment limitations for each carrier report; and

3. may take into consideration other factors determined relevant by the Commissioner, including complaint trends, federal Parity Act guidance, and whether the nonquantitative treatment limitation was selected for a previous reporting year.

(ii) Of the five selected nonquantitative treatment limitations:

1. not more than two may be for utilization review; and

2. at least one must be for network composition, including reimbursement rate setting.

(6) A finding of noncompliance for a product shall apply to all plans within the product.

(d) (1) A carrier subject to this section shall conduct a comparative analysis for the nonquantitative treatment limitations selected under subsection (c)(5) of this section as nonquantitative treatment limitations are:

(i) written; and

(ii) in operation.

(2) The comparative analysis of the nonquantitative treatment limitations selected under subsection (c)(5) of this section shall:

(i) demonstrate that the processes, strategies, evidentiary standards, or other factors used in designing and applying each selected nonquantitative treatment limitation to mental health benefits and substance use disorder benefits in each Parity Act classification are comparable to, and are applied no more stringently than, the processes, strategies, evidentiary standards, or other factors used in designing and applying each selected nonquantitative treatment limitation to medical/surgical benefits within the same Parity Act classification; and

(ii) include all information required under the Parity Act.

(3) Regardless of whether it was used before the Parity Act was enacted and as requested by the Commission, a carrier shall perform and provide a comparative analysis for each process, strategy, evidentiary standard, or other factor used in designing and applying a selected nonquantitative treatment limitation used during a reporting period.

(e) In providing the analysis required under subsection (d) of this section, a carrier shall:

(1) identify the factors used to determine that a nonquantitative treatment limitation will apply to a benefit, including:

(i) the sources for the factors;

(ii) the factors that were considered but rejected; and

(iii) if a factor was given more weight than another, the reason for the difference in weighting;

(2) identify and define the specific evidentiary standards used to define the factors and any other evidence relied on in designing each nonquantitative treatment limitation;

(3) include the results of the audits, reviews, and analyses performed on the nonquantitative treatment limitations identified under subsection (c)(5) of this section to conduct the analysis required under subsection (d)(2) of this section for the plans and products as written;

(4) include the results of the audits, reviews, and analyses performed on the nonquantitative treatment limitations identified under subsection (c)(5) of this section to conduct the analysis required under subsection (d)(2) of this section for the plans and products as in operation;

(5) identify the measures used to ensure comparable design and application of nonquantitative treatment limitations that are implemented by the carrier and any entity delegated by the carrier to manage mental health benefits, substance use disorder benefits, or medical/surgical benefits on behalf of the carrier;

(6) disclose the specific findings and conclusions reached by the carrier that indicate that the health benefit plan is in compliance with this section and the Parity Act; and

(7) identify the process used to comply with the Parity Act disclosure requirements for mental health benefits, substance use disorder benefits, and medical/surgical benefits, including:

(i) the criteria for a medical necessity determination;

(ii) reasons for a denial of benefits; and

(iii) in connection with a member’s request for individual or group plan information and for purposes of filing an internal coverage or grievance matter and appeals, plan documents that contain information about processes, strategies, evidentiary standards, and any other factors used to apply a nonquantitative treatment limitation.

(f) The Commissioner shall:

(1) develop additional standardized data templates:

(i) to evaluate the comparative analysis of nonquantitative treatment limitations in operation; and

(ii) that meet or exceed any minimum requirements for data reporting specified in federal regulations;

(2) require each carrier subject to this section to submit:

(i) for each product identified under subsection (c)(2) of this section, the data templates described in item (1) of this subsection for the nonquantitative treatment limitations selected by the Commissioner for the reporting year in accordance with subsection (c)(5) of this section; and

(ii) a separate data template for any plans described in subsection (c)(4) of this section; and

(3) post the data templates on the Administration’s website for a comment period of not less than 30 days before adoption.

(g) The reports required under this section shall:

(1) be submitted on a standard form developed by the Commissioner that meets or exceeds any minimum requirements specified in the federal regulations and sub–regulatory guidance on nonquantitative treatment limitations reporting;

(2) be submitted by the carrier that issues or delivers the product;

(3) be prepared in coordination with any entity the carrier contracts with to provide mental health benefits and substance use disorder benefits;

(4) contain a statement, signed by a corporate officer, attesting to the accuracy of the information contained in the report;

(5) be available to plan members and the public on the carrier’s website in a summary form that removes confidential or proprietary information and is developed by the Commissioner in accordance with subsection (n)(2) of this section; and

(6) exclude any identifying information of any plan member.

(h) (1) A carrier submitting a report under this section may submit a written request to the Commissioner that disclosure of specific information included in the report be denied under the Public Information Act and, if submitting a request, shall:

(i) identify the particular information the disclosure of which the carrier requests be denied; and

(ii) cite the statutory authority under the Public Information Act that authorizes denial of access to the information.

(2) The Commissioner may review a request submitted under paragraph (1) of this subsection on receipt of a request for access to the information under the Public Information Act.

(3) The Commissioner may notify the carrier that submitted the request under paragraph (1) of this subsection before granting access to information that was the subject of the request.

(4) A carrier shall disclose to a member on request any plan information contained in a report that is required to be disclosed to that member under federal or State law.

(i) (1) The Commissioner shall:

(i) review each report submitted in accordance with subsections (c), (d), and (f) of this section to assess each carrier’s compliance with the Parity Act for each Parity Act classification;

(ii) notify a carrier in writing of any noncompliance with the Parity Act before issuing an administrative order; and

(iii) within 90 days after the notice of noncompliance is issued, allow the carrier to:

1. submit a compliance plan to the Administration to comply with the Parity Act; and

2. reprocess any claims that were improperly denied, in whole or in part, because of the noncompliance.

(2) The Commissioner may require carriers to complete data templates for a nonquantitative treatment limitation more frequently than every 2 years.

(j) (1) If the Commissioner finds that the carrier failed to submit a complete report required under this section, the Commissioner may:

(i) take action authorized under paragraph (2) of this subsection;

(ii) in accordance with § 2–208 of this article, charge the carrier for any additional expenses incurred by the Commissioner to review additional reports;

(iii) impose a penalty for each day that the carrier fails to submit information required by the Commissioner to evaluate compliance; or

(iv) impose any penalty or take any action as authorized:

1. for an insurer, nonprofit health service plan, or any other person subject to this section, under this article; or

2. for a health maintenance organization, under this article or the Health – General Article.

(2) If the Commissioner cannot make a determination that a specific conduct or practice is compliant with the Parity Act because the carrier failed to provide a sufficient comparative analysis for a nonquantitative treatment limitation, the Commissioner may:

(i) issue an administrative order requiring the carrier or an entity delegated by the carrier to take the following action until the Commissioner can make a determination of compliance with the Parity Act:

1. modify the conduct or practice as specified by the Commissioner;

2. cease the conduct or practice; or

3. submit periodic data related to the conduct or practice; or

(ii) subject to paragraph (3) of this subsection, require the carrier to perform a new comparative analysis.

(3) The Commissioner may require the carrier to establish specific quantitative thresholds for evidentiary standards and conduct a new comparative analysis for a nonquantitative treatment limitation if the Commissioner determines a carrier failed to provide a sufficient comparative analysis because the carrier did not:

(i) use applicable quantitative thresholds for the evidentiary standard; or

(ii) provide a specific, detailed, and reasoned explanation of how the carrier ensures that the factors for the nonquantitative treatment limitation are being applied comparably and no more stringently to mental health and substance use disorder services.

(4) Subsection (i)(1)(iii) of this section does not apply to the failure of a carrier to submit a complete report.

(k) If, as a result of the review required under subsection (i)(1)(i) of this section, the Commissioner finds that the carrier failed to comply with the Parity Act, and did not submit a compliance plan to adequately correct the noncompliance, the Commissioner may:

(1) issue an administrative order that requires:

(i) the carrier or an entity delegated by the carrier to cease the noncompliant conduct or practice; or

(ii) the carrier to provide a payment that has been denied improperly because of the noncompliance; or

(2) impose any other penalty or take any action as authorized:

(i) for an insurer, nonprofit health service plan, or any other person subject to this section, under this article; or

(ii) for a health maintenance organization, under this article or the Health – General Article.

(l) (1) A carrier shall have the burden of persuasion in demonstrating that its design and application of a nonquantitative treatment limitation complies with the Parity Act:

(i) in any review conducted by the Commissioner under this section; or

(ii) in any complaint investigation or market conduct action undertaken by the Commissioner that involves the application of the Parity Act.

(2) (i) A failure of a carrier to submit complete Parity Act compliance information required under this section or in connection with an investigation or examination by the Commissioner shall constitute noncompliance with the Parity Act.

(ii) Subsection (i)(1)(iii) of this section does not apply to a carrier that fails to submit complete Parity Act compliance information.

(m) In determining an appropriate penalty under subsection (j) or (k) of this section, the Commissioner shall consider the late filing of a report required under subsection (c) or (f) of this section and any parity violation to be a serious violation with a significantly deleterious effect on the public.

(n) The Commissioner shall create:

(1) a standard form for entities to submit the reports in accordance with subsection (g)(1) of this section; and

(2) a summary form for entities to post to their websites in accordance with subsection (g)(5) of this section.

(o) The Commissioner shall, in consultation with interested stakeholders, adopt regulations to implement this section, including to ensure uniform definitions and methodology for the reporting requirements established under this section.