Tennessee § 56-7-2360 - Coverage for mental health, alcoholism, or drug dependency services.

§ 56-7-2360. Coverage for mental health, alcoholism, or drug dependency services.

As used in this section, unless the context otherwise requires: “Aggregate lifetime limit” means a dollar limitation on the total amount that may be paid for benefits under a health plan with respect to an individual or other coverage unit; “Annual limit” means a dollar limitation on the total amount that may be paid for benefits in a twelve-month period under a health plan with respect to an individual or other coverage unit; “Classification of benefits” means inpatient in-network benefits, inpatient out-of-network benefits, outpatient in-network benefits, outpatient out-of-network benefits, prescription drug benefits, and emergency care benefits. These classifications of benefits are the only classifications that may be used except that there may be sub-classifications within both outpatient classifications differentiating office visits from other outpatient items and services, including outpatient surgery, facility charges for day treatment centers, laboratory charges, and other medical items; “Financial requirement” includes deductibles, copayments, coinsurance, and out-of-pocket expenses, but excludes an aggregate lifetime limit and an annual limit; “Health benefit plan” means any hospital or medical expense policy, health, hospital, or medical service corporation contract, a policy or agreement entered into by a health insurer or a health maintenance organization contract offered by an employer, other plans administered by the state government, or any certificate issued under the policies, contracts, or plans; “Health insurance carrier” means any entity subject to the insurance laws and regulations of this state, or subject to the jurisdiction of the commissioner of commerce and insurance, that contracts with healthcare providers in connection with a plan of health insurance, health benefits, or health services; “Mental health or alcoholism or drug dependency benefits” means benefits for the treatment of any condition or disorder that involves a mental health condition or substance use disorder that falls under any of the diagnostic categories listed in the mental disorders section of the current edition of the International Classification of Disease or that is listed in the mental disorders section of the most recent version of the Diagnostic and Statistical Manual of Mental Disorders; “Non-quantitative treatment limitations,” or “NQTLs,” are limitations that are not expressed numerically, but otherwise limit the scope or duration of benefits for treatment. For purposes of this subdivision (a)(1)(H), fail-first or step therapy protocols do not include formulary designs that require the prescription, use, and a showing of ineffectiveness of generic drugs prior to approval of payment for the prescription of higher cost drugs. NQTLs include, but are not limited to: Medical management standards limiting or excluding benefits based on medical necessity or medical appropriateness, or based on whether the treatment is experimental or investigative; Formulary design for prescription drugs; Tier design for plans with multiple network tiers, including preferred providers and participating providers, and network tier design; Standards for provider admission to participate in a network, including reimbursement rates; Plan methods for determining usual, customary, and reasonable charges; Refusal to pay for higher-cost therapies until it can be shown that a lower-cost therapy is not effective, that are also known as fail-first policies or step therapy protocols; Exclusions based on failure to complete a course of treatment; Restrictions based on geographic location, facility type, provider specialty, and other criteria that limit the scope or duration of benefits for services provided under the plan or coverage; In- and out-of-network geographic limitations; Standards for providing access to out-of-network providers; Limitations on inpatient services for situations where the participant is a threat to self or others; Exclusions for court-ordered and involuntary holds; Experimental treatment limitations; Service coding; and Exclusions for services provided by clinical social workers; “Predominant” means application to more than one-half (½) of such type of limit or requirement; “Substantially all” means application to at least two-thirds (2/3) of all medical or surgical benefits in a classification; and “Treatment limitation” includes limits on the frequency of treatment, number of visits, days of coverage, or other similar limits on the scope or duration of treatment. In addition to any other requirement of law concerning coverage of mental health or mental illness benefits or alcoholism or drug dependency benefits, including, but not limited to, §§ 56-7-2601 and 56-7-2602, any individual or group health benefit plan issued by a health insurance carrier regulated pursuant to this title shall provide coverage for mental health or alcoholism or drug dependency services in compliance with the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) (Pub. L. No. 110-343) found at 42 U.S.C. § 300gg-26 and its implementing regulations found at 45 CFR § 146.136 and 45 CFR § 147.160. Nothing in subsection (a) prohibits an employee health benefit plan, or a plan issuer offering an individual or group health plan from utilizing managed care practices for the delivery of benefits required under this section, as long as that for any utilization review or benefit determination for the treatment of alcoholism or drug dependence the clinical review criteria is the most recent Treatment Criteria for Addictive, Substance-Related, and Co-Occurring Conditions established by the American Society of Addiction Medicine or other evidence-based clinical guidelines, such as those referenced by the federal substance abuse and mental health services administration (SAMHSA). No additional criteria other than in this subsection (b) may be used during utilization review or benefit determination for treatment of substance use disorders. The mandate to provide coverage for mental health services does not apply with respect to a group health plan if the application of the mandate to the plan results in an increase in the cost under the plan of more than one percent (1%). Documentation of the increase in cost must be filed with the department after twelve (12) months of experience. If the commissioner determines that the increase in cost is a result of the requirements of this section, the commissioner or the commissioner's designee shall issue a letter to the issuer of the plan stating that the plan does not have to comply with the mandate set out in this section. The issuer may appeal the letter as final agency action pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. The department of commerce and insurance shall implement and enforce applicable provisions of the federal Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, this section, and §§ 56-7-2601 and 56-7-2602, which include: Ensuring compliance by individual and group health benefit plans; Detecting possible violations of the law by individual and group health benefit plans; Accepting, evaluating, and responding to complaints regarding such violations; and Maintaining and regularly reviewing for possible parity violations a publicly available consumer complaint log regarding mental health or alcoholism or drug dependency coverage; provided, that individually identifiable information shall be excluded. Not later than January 31, 2020, the department shall issue a report to the general assembly and provide an educational presentation to the general assembly. The report and presentation shall: Discuss the methodology the department is using to check for compliance with the MHPAEA, and any federal regulations or guidance relating to the compliance and oversight of the MHPAEA, including 45 CFR 146.136; Discuss the methodology the department uses to check for compliance with this section and §§ 56-7-2601 and 56-7-2602; Identify market conduct examinations conducted or completed during the preceding twelve-month period regarding compliance with parity in mental health or alcoholism or drug dependency benefits under state and federal laws and summarize the results of such market conduct examinations. Individually identifiable information shall be excluded from the reports consistent with federal privacy protections, including, but not limited to, 42 U.S.C. § 290dd-2 and regulations found at 42 CFR § 2.1 through 42 CFR § 2.67. This discussion shall include: The number of market conduct examinations initiated and completed; The benefit classifications examined by each market conduct examination; The subject matter of each market conduct examination, including quantitative and non-quantitative treatment limitations; and A summary of the basis for the final decision rendered in each market conduct examination; Detail any educational or corrective actions the department of commerce and insurance has taken to ensure health benefit plan compliance with this section, the MHPAEA, 42 U.S.C. § 18031(j), and §§ 56-7-2601 and 56-7-2602; Detail the department's educational approaches relating to informing the public about mental health or alcoholism or drug dependence parity protections under state and federal law; and Describe how the department examines any provider or consumer complaints related to denials or restrictions for possible violations of this section, the MHPAEA, 42 U.S.C. § 18031(j), and §§ 56-7-2601 and 56-7-2602, including complaints regarding, but not limited to: Denials of claims for residential treatment or other inpatient treatment on the grounds that such a level of care is not medically necessary; Claims for residential treatment or other inpatient treatment that were approved but for a fewer number of days than requested; Denials of claims for residential treatment or other inpatient treatment because the beneficiary had not first attempted outpatient treatment, medication, or a combination of outpatient treatment and medication; Denials of claims for medications such as buprenorphine or naltrexone on the grounds that they are not medically necessary; Step therapy requirements imposed before buprenorphine or naltrexone is approved; and Prior authorization requirements imposed on claims for buprenorphine or naltrexone, including those imposed because of safety risks associated with buprenorphine. The report issued pursuant to subsection (e) must be written in non-technical, readily understandable language and shall be made available to the public by posting the report on the department's website and by other means as the department finds appropriate. The name and identity of the health insurance carrier must be given confidential treatment, may not be made public by the commissioner or any other person, and shall not be subject to public inspection pursuant to § 10-7-503. Benefits under this section shall not be denied for care for confinement provided in a hospital owned or operated by this state that is especially intended for use in the diagnosis, care, and treatment of psychiatric, mental, or nervous disorders. Nothing in this section applies to accident-only, specified disease, hospital indemnity, medicare supplement, long-term care, or other limited benefit hospital insurance policies. The commissioner is authorized to promulgate rules to effectuate the purposes of this section. The rules must be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Nothing in this section shall be construed as requiring the disclosure of any information that would violate 42 U.S.C. § 290dd-2 and regulations found at 42 CFR § 2.1 through 42 CFR § 2.67. Acts 1998, ch. 1042, §§ 1, 4; 2018, ch. 1012, § 1. Compiler's Notes. Acts 1998, ch. 1042, § 5 provides that this section shall apply to contracts entered into or renewed on and after January 1, 2000. Acts 2018, ch. 1012, § 3 provided that the act, which amended this section, shall apply to policies and contracts entered into or renewed on and after January 1, 2019. Amendments. The 2018 amendment, effective January 1, 2019, rewrote (a) which read: “(a)(1) In addition to any other requirement of law concerning coverage of mental health or mental illness benefits, including, but not limited to, § 56-7-2601 , any group health plan issued by any entity regulated pursuant to insurance law under this title shall provide coverage for mental health services as follows:“(A)(i) As to either aggregate lifetime limits or annual limits, or both, for a group health plan providing both medical and surgical benefits and mental health benefits:“(a ) If the plan does not have a limit on substantially all medical and surgical benefits, the plan may not impose the limit on mental health benefits;“(b ) If the plan has a limit on substantially all medical and surgical benefits, the plan shall either include mental health benefits under the limit applied to medical and surgical benefits, or apply a separate limit to mental health benefits that is no less than the one applied to medical and surgical benefits; and“(c ) If the plan has varying limits on different medical or surgical benefits, the plan shall apply an average limit to mental health benefits with the average to be computed based on the weighted average of the varying limits;“(ii) ‘Aggregate lifetime limit’ means a dollar limitation on the total amount that may be paid for benefits under a health plan with respect to an individual or other coverage unit; and“(iii) ‘Annual limit’ means a dollar limitation on the total amount that may be paid for benefits in a twelve-month period under a health plan with respect to an individual or other coverage unit; and“(B)(i) Any annual visit limits by a plan shall be equal to or greater than twenty (20) hospital inpatient days and twenty-five (25) outpatient or doctor visits. As an alternative to hospital inpatient days, if less costly residential treatment, partial hospitalization, or crisis respite care for the patient is appropriate, the plan shall provide for this care at the rate of two (2) alternate care days to one (1) day of inpatient hospital treatment.“(ii) An issuer of a plan may not count toward the number of outpatient visits required to be covered under subdivision (a)(1)(B)(i) an outpatient visit for the purpose of medication management, and shall cover that outpatient visit under the same terms and conditions as it covers outpatient visits for the treatment of physical illness. Medication management shall not include services that could be billed as a therapy or consultation visit. For the purposes of this subdivision (a)(1)(B)(ii), “medication management” means pharmacologic management, including prescription, use, and review of medication with no more than minimal medical psychotherapy.“(2) The mandate to provide coverage for mental health services at the same rates and terms as coverage provided for all medical and surgical conditions under this subsection (a) shall not be applicable to services for the abuse of or dependency on alcohol or drugs.“(3) A plan may not establish a separate limitation for mental health services for out-of-pocket cost sharing that is more costly than the limitation applied to medical and surgical benefits.“(4) This subsection (a) shall not apply to group health plans issued to small employers, defined as those with from two (2) to twenty-five (25) employees.”; in (b), substituted “prohibits” for “shall be construed as prohibiting” following “subsection (a) and “an individual or” for “a” following “offering”, and added the language beginning “, as long as that” at the end; deleted former (c); redesignated former (d) as (c); in present (c), substituted “does” for shall” preceding “not apply”, substituted “must” for “shall” preceding “be filed”, and inserted “stating”; rewrote (e) which read: “This section shall not apply to any individual policy issued under this title.”; rewrote (f) which read: “The commissioner is authorized to promulgate rules and regulations to effectuate the purposes of this section. The rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act.”; in (g), substituted “shall” for may” preceding “not be denied”; in (h), substituted “applies” for “shall apply” following “Nothing in this section”; and added (i) and (j). Effective Dates. Acts 2018, ch. 1012, § 3. January 1, 2019. Attorney General Opinions. Mental Health Parity and Addiction Equity Act of 2008. OAG 11-25, 2011 Tenn. AG LEXIS 27 (3/21/11).