W. Va. Code R. § 114-64-5

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 114-64-5 - Non-Quantitative Treatment Limitations

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.

W. Va. Code R. § 114-64-5