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Compliance Corner

State Updates

Nondiscrimination Standards in Insurance Expanded

April 27, 2021

On April 13, 2021, Gov. Carney signed SB 32 into law. The new law, effective immediately, expands the nondiscrimination standards in insurance. Specifically, a carrier may not discriminate in the offer of an insurance policy or the premiums charged based on gender identity or race.

For this purpose, gender identity is defined as a gender-related identity, appearance, expression or behavior of a person, regardless of the person's assigned sex at birth. Gender identity may be demonstrated by consistent and uniform assertion of the gender identity or any other evidence that the gender identity is sincerely held as part of a person's core identity; provided, however, that gender identity shall not be asserted for any improper purpose.

For this purpose, race is expanded to include traits historically associated with race, including hair texture and a protective hairstyle (such as braids, locks and twists).

Insurers and plan sponsors should be aware of these changes to the nondiscrimination standards.

SB 32 »

November 10, 2020

dThe Department of Insurance has revised and reissued Bulletin No. 86 to clarify coverage requirements related to gender identity. Effective September 4, 2020, health insurance policies are:

  • Prohibited from denying, cancelling, terminating, limiting, refusing to issue or renew, or restricting insurance coverage or benefits based on an individual’s gender identity or transgender status
  • Prohibited from denying, excluding or limiting coverage for medically necessary services based on the patient’s gender identify if the services are otherwise covered
  • Prohibited from containing a blanket exclusion for gender dysphoria, gender identity disorder, medically necessary surgeries or other treatments related to gender transition
  • Prohibited from imposing different premiums or rates for insurance coverage based on an insured’s gender identity

This bulletin will govern any fully insured policy issued in Delaware, so plan sponsors should familiarize themselves with these rules.

Bulletin No. 86 »

Coverage for Telehealth Expanded

September 01, 2020

Under existing state law, policies providing hospital, medical and surgical coverage must also provide coverage for certain telehealth services. Effective July 17, 2020, and expiring July 1, 2021, House Substitute 1 for H.B. 348 expands that coverage to include telehealth services provided without the use of visual communication. This would include services provided via non-smart phones and landline connections. The plan cannot require a previously established relationship between the participant and the healthcare provider prior to the telehealth visit. The healthcare provider must be licensed to provide services in Delaware or the state in which they are located. Finally, coverage for telehealth services must include prescribing of controlled substances, including opioids.

The insurer providing the group policy should make the appropriate changes to the plan’s benefits to comply with the law. Employer plan sponsors should revise any plan documentation and communications as necessary to inform participants of the expanded coverage.

House Substitute 1 for H.B. 348 »

New COVID-19 Bulletin on Pre-Authorization Requirements, Telehealth, Non-Cancellation for Nonpayment of Premiums, and Catastrophic Plans

March 31, 2020

On March 20, 2020, the Department of Insurance published Bulletin No. 116. The new bulletin is meant to provide additional guidance to carriers relating to COVID-19, particularly pertinent to the governor’s March 13, 2020, declaration of a state of emergency. The bulletin requests that carriers suspend cancellations and nonrenewals due to nonpayment of premium during the pendency of the state of emergency. In addition, the bulletin states that carriers should fully reimburse providers who are providing telemedicine services through telehealth, including all telehealth/telemedicine services (not just those relating to COVID-19).

The bulletin also states that early diagnosis and treatment of COVID-19 is imperative, and therefore that prior authorization requirements should be waived relating to the lab testing and treatment of confirmed or suspected COVID-19 patients. Finally, the bulletin states that catastrophic health coverage plans may be amended to provide pre-deductible coverage for services associated with the diagnosis and/or treatment of COVID-19 (normally, such plans may not provide coverage of an essential health benefits before an enrollee meets the plan’s deductible).

The bulletin contains no new employer requirements; employers should work with their carriers in understanding the bulletin’s directives for COVID-19-related coverage items and services.

Bulletin No. 116 »

Health Insurance Coverage for Coronavirus

March 17, 2020

On March 9, 2020, the Department of Insurance published Bulletin No. 115, which relates to health insurance coverage for the coronavirus (COVID-19). According to the bulletin, small and individual plans must cover essential health benefits (EHBs), which include COVID-19-related laboratory tests.

For all fully insured plans (regardless of size), carriers cannot exclude a service for coverage solely because the service is provided through telemedicine services (which include a variety of platforms, including telephones, remote patient monitoring devices, and other electronic means such as web cameras and mobile video chat). In addition, carriers cannot use pre-authorization requirements as a barrier to access necessary treatment for COVID-19, and should expedite utilization review and appeal process for COVID-19 when medically appropriate.

On prescription drugs, an expedited formulary exception may be requested if the insured is suffering from a health condition that may seriously jeopardize the insured’s health, life or ability to regain maximum function, or if the insured is undergoing a current course of treatment using a non-formulary prescription drug. Additionally, PBMs are prohibited from requiring prior authorization for coverage of a 72-hour supply of medication that is for a non-controlled substance in an emergency. The Department expects insurers to provide for early refills or replacements of lost or damaged medications (even if the potential for quarantine is high). Lastly, consumers must be able to access their necessary prescriptions from a local retail pharmacy, even if their prescription supply is normally provided by mail order, without concern of a penalty.

Lastly, the bulletin states that carriers must cover diagnostic testing and waive patient cost sharing (deductibles, copayments and coinsurance), including for in-person and telemedicine visits.

The new bulletin applies directly to carriers, but are important reminders on coverage of COVID-19-relates services and items.

Bulletin No. 115 »

Coverage for Initial Depression Screenings

March 17, 2020

On March 6, 2020, the Department of Insurance published Bulletin No. 114. The bulletin reminds carriers that initial depression screenings are considered a preventive service under the ACA, and therefore an enrollee should not be charged any cost sharing (deductible, copayment or coinsurance) for those screenings. The bulletin points to the American Psychiatric Association’s definition of “depression,” which is a common and serious illness that negatively affects how a person feels, thinks and acts. The bulletin reminds carriers that all people, starting at age 12, should be screened for depression (according to the U.S. Preventive Services Task Force).

The bulletin applies to carriers, but is helpful information for employers with regard to their fully insured plans and with regard to employees who may ask questions on coverage of initial depression screenings.

Bulletin No. 114 »

Contraceptive Coverage Mandate

January 22, 2020

On December 5, 2019, the Department of Insurance issued Bulletin No. 112 related to the mandated coverage of certain contraceptives. As background, in July 2018, Gov. Carney signed SB 151 into law, which required health insurers to provide coverage for the following with no cost sharing for participants:

  • All FDA-approved birth control methods, including intrauterine devices (IUDs)
  • 12-months of birth control dispensed at one time
  • Emergency contraceptives without a prescription
  • Immediate insertion of long-acting reversible contraceptives (LARCs)

Again, this coverage is already required. The department issued the new bulletin to remind insurers of the last requirement related to LARCs, as it appears that insurers and hospitals have not been providing the service and benefit in an in-patient setting.

There is no action required of employers, but as a plan sponsor and fiduciary of a group health plan, they should monitor the performance of their carriers to make sure that the plan is providing the required coverage.

Bulletin No. 112 »

Efforts to Improve Efficiency of Claim Submissions and Payments

August 06, 2019

On July 17, 2019, Gov. Carney signed HB 146 into law. The new law makes three changes to the relationship between health insurers and health care providers in an effort to make the process of claim submissions and payments more efficient.

First, health insurers must accept electronic claim submissions from non-pharmacy health care providers regardless of network status. Additionally, the insurer must electronically acknowledge the claim within two business days after submission.

Secondly, an insurer may not request medical records related to post-claim adjudication audits in more than 400 instances during a 45 day period per health care provider.

The third provision is the most relevant for group health plan sponsors and participants; an insurer must permit health care providers, regardless of network status, at least 180 days to submit a claim from the date of service. Any contract that imposes a shorter time frame for health care provider submission shall be revised by the insurer.

The effective date of these provisions is January 13, 2020. Although the changes do not require anything of employers, fully-insured plan sponsors should be mindful of these changes in how insurers will have to adjudicate claims.

HB 146 »

Step Therapy Protocol Exceptions

August 06, 2019

On June 18, 2019, Gov. Carney signed House Substitute 1 for HB 105 into law. The new law requires health plans to grant exceptions to step therapy protocols under specific circumstances. As background, step therapy protocols require patients to try one or more prescription drugs before coverage is provided for a drug selected by the patient’s health care provider.

Effective for policies issued or renewed on or after March 18, 2020, health plans must grant exceptions in the following circumstances:

  • The required prescription drug is medically inadvisable, will likely cause an adverse reaction or physical/mental harm to the patient.
  • The required prescription drug is expected to be ineffective based on the known clinical characteristics of the patient and the known characteristics of the prescription drug regimen.
  • The patient has tried the required prescription drug while under the patient’s current or previous health benefit plan, or another prescription drug in the same pharmacologic class or with the same mechanism of action, and such prescription drug was discontinued due to lack of efficacy or effectiveness, diminished effect, or an adverse event.
  • The required prescription drug is not in the best interest of the patient, based on medical necessity.
  • The patient is stable, for the medical condition under consideration, on a prescription drug prescribed by the patient’s health care provider or while the patient was insured by the patient’s current or a previous health benefit plan.

HS 1 for HB 105 »

Prescription Drug Cost Sharing Limit

August 06, 2019

On June 19, 2019, Gov. Carney signed HB 24 into law. The new law prohibits an insurer or pharmacy benefits manager from imposing a copayment or coinsurance for a covered prescription drug that exceeds the lesser of the usual and customary price or the contract price of the drug. The law is effective for policies issued or renewed on or after January 1, 2020.

HB24 »

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