WSR 09-10-083

PROPOSED RULES

OFFICE OF

INSURANCE COMMISSIONER

[ Insurance Commissioner Matter No. R 2008-27 -- Filed May 6, 2009, 8:03 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 08-22-096.

Title of Rule and Other Identifying Information: Chemical dependency benefits.

Hearing Location(s): Insurance Commissioner's Office, Room TR 120, 5000 Capitol Boulevard, Tumwater, WA 98504-0255, on June 9, 2009, at 10:00.

Date of Intended Adoption: July 7, 2009.

Submit Written Comments to: Kacy Scott, P.O. Box 40258, Olympia, WA 98504-0258, e-mail KacyS@oic.wa.gov, fax (360) 586-3109, by June 8, 2009.

Assistance for Persons with Disabilities: Contact Lorie Villaflores by June 8, 2009, TTY (360) 586-0241 or (360) 725-7087.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: A 2008 federal law, the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, requires large group plans providing mental health and substance abuse benefits to use the same financial requirements and treatment limitations for those benefits that are used for the plan's medical-surgical benefits. The federal law is effective for plan years beginning after October 3, 2009. Washington currently requires full parity for mental health benefits. The current chemical dependency benefit rules, chapter 284-53 WAC, are more limiting than the federal requirements. These proposed rules ensure that our regulations are consistent with the federal requirements for large group plans for these benefits.

The second purpose of these rules is publication of the minimum benefit amounts pursuant to the commissioner's review as required by WAC 284-53-010 (4)(b).

Anticipated effects: Carrier's health benefit plan policies and contracts will comply with federal and state requirements for chemical dependency benefits. Health benefit plans offered in Washington state will have minimum benefit levels that are reasonable and increase in predictable increments for the next five years. The rule provides for additional review after that time.

Statutory Authority for Adoption: RCW 48.02.060, 48.21.197.

Statute Being Implemented: RCW 48.21.197.

Rule is necessary because of federal law, Mental Health Parity and Addiction Equity Act of 2008, Public Law No. 110-343 (October 3, 2008).

Name of Proponent: Mike Kreidler, insurance commissioner, governmental.

Name of Agency Personnel Responsible for Drafting: Donna Dorris, P.O. Box 40258, Olympia, WA 98504-0258, (360) 725-7040; Implementation: Beth Berendt, P.O. Box 40255, Olympia, WA 98504-0255, (360) 725-7117; and Enforcement: Carol Sureau, P.O. Box 40255, Olympia, WA 98504-0255, (360) 725-7050.

No small business economic impact statement has been prepared under chapter 19.85 RCW. None of the health carriers offering health care or disability insurance in Washington state meet the definition of small business as defined by RCW 19.85.020(4).

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Kacy Scott, P.O. Box 40258, Olympia, WA 98504-0258, phone (360) 725-7041, fax (360) 586-3109, e-mail KacyS@oic.wa.gov.

May 6, 2009

Mike Kreidler

Insurance Commissioner

OTS-2353.3


AMENDATORY SECTION(Amending Matter No. R 2003-08, filed 10/28/04, effective 11/28/04)

WAC 284-53-005   Definitions.   (1) (("Chronic illnesses" include, but are not limited to, heart disease, diabetes, chronic obstructive pulmonary disease, and chemical dependency.

(2))) "Approved treatment program" means a discrete program of chemical dependency treatment provided by a treatment program certified by the department of social and health services as meeting standards adopted under chapter 70.96A RCW.

(2) "Chemical dependency" means the illness as defined in RCW 48.21.195.

(3) "Chemical dependency professional" means a person certified as a chemical dependency professional by the Washington state department of health under chapter 18.205 RCW.

(4) "Cost sharing" includes deductibles, copayments, coinsurance and out-of-pocket expenses.

(5) "Emergency medical condition" ((has)) means the ((same meaning)) condition as ((that contained)) defined in RCW 48.43.005.

(((3))) (6) "Medically necessary" or "medical necessity," with respect to chemical dependency coverage((, means as indicated in the)) is defined by the American Society of Addiction Medicine patient placement criteria. "Patient placement criteria" means the admission, continued service, and discharge criteria set forth in the most recent version of the Patient Placement Criteria for the Treatment of Substance Abuse-Related Disorders ((II)) as published ((in 1996)) by the American Society of Addiction Medicine.

(7) "Substance use disorder" as used in P.L. 110-343 (October 3, 2008) as currently enacted or hereafter amended (short title: The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008) includes those conditions meeting the definition of chemical dependency in RCW 48.21.195, 48.44.245, and 48.46.355.

(8) "Treatment limitation" includes limits on the frequency of treatment, number of visits, days of coverage, waiting periods, or other similar limits on the scope or duration of treatment.

[Statutory Authority: RCW 48.02.060, 48.21.197, 48.44.050, and 48.46.200. 04-22-051 (Matter No. R 2003-08), 284-53-005, filed 10/28/04, effective 11/28/04. Statutory Authority: RCW 48.02.060, 48.44.050, 48.46.200, 48.21.160, 48.21.180, 48.21.197, 48.44.240 and 48.46.350. 99-16-005 (Matter No. R 97-8), 284-53-005, filed 7/22/99, effective 8/22/99.]


AMENDATORY SECTION(Amending Matter No. R 2003-08, filed 10/28/04, effective 11/28/04)

WAC 284-53-010   Standards for coverage of chemical dependency.   ((Coverage for chemical dependency)) Effective January 1, 2010, group health benefit plans providing chemical dependency benefits required by RCW 48.21.180, 48.44.240, or 48.46.350 must meet the following standards and administrative requirements((.)):

(1) Any group contract providing coverage for chemical dependency benefits must define "chemical dependency" consistent with definitions in Title 48 RCW and this chapter.

(2) Coverage for chemical dependency benefits must include payment for reasonable charges for any medically necessary treatment and supporting service rendered to an enrollee by an approved treatment program.

(3) Cost sharing amounts for chemical dependency services may be no more than the cost sharing amounts for medical and surgical services otherwise provided under the health benefit plan. Cost sharing amounts must not be separate from those for medical and surgical benefits covered by the plan.

(4) Lifetime limits must apply to chemical dependency benefits in the same manner as medical and surgical benefits.

(5) Treatment limitation for chemical dependency services is allowed only if the same limitation or requirement is imposed on coverage for medical and surgical services. Benefits for actual treatment and services rendered may not be denied solely because a course of treatment was interrupted or was not completed.

(6) Medically necessary detoxification must be covered as an emergency medical condition according to RCW 48.43.093, and ((so long as a patient is not yet enrolled in other chemical dependency treatment, detoxification)) may be provided in hospitals licensed under chapter 70.41 RCW. Medically necessary detoxification services must not require prenotification, and may not be included when calculating payments within the chemical dependency payment minimum required in this chapter, as long as the enrollee is not yet enrolled in other chemical dependency treatment.

(((2) Coverage for chemical dependency must provide payment for reasonable charges for any medically necessary treatment and supporting services rendered to an enrollee by a provider that is an "approved treatment program" under RCW 70.96A.020(3). Medically necessary detoxification services may be provided in hospitals licensed under chapter 70.41 RCW.

(3) Except as prohibited by this chapter, chemical dependency coverage may be limited by provisions of the contract that apply to other benefits or services for chronic illnesses or disease including, but not limited to, provisions relating to enrollee point of service cost sharing. Denial of coverage may not be based on contract provisions that are not pertinent to the treatment of chemical dependency, such as provisions requiring a treatment program to have surgical facilities or approval by the joint commission on accreditation of hospitals, that there be a physician in attendance, or that the exact date of onset be known.

(4)(a) The minimum benefit for chemical dependency treatment and supporting services, exclusive of all cost-sharing amounts in any consecutive twenty-four-month period shall be as follows:

(i) For contracts issued or renewed January 1, 2005, through December 31, 2005, the benefit must be no less than twelve thousand five hundred dollars.

(ii) Each succeeding year from January 1, 2006, through December 31, 2009, the benefit must increase in increments of five hundred dollars for new and renewing contracts.

(b) No later than January 1, 2009, the commissioner shall begin a review of past benefit adjustments to determine if increases have been reasonable and to establish future minimum benefits. By June 30, 2009, the commissioner shall publish the new minimum benefit amounts for the period beginning January 1, 2010.

(5) Contracts subject to this rule must comply with the following requirements:

(a) Waiting periods or preexisting condition limitations on chemical dependency coverage may be no more restrictive than those that are imposed for any other chronic illness under the contract.

(b) Reasonable benefits for actual treatment and services rendered may not be denied solely because a course of treatment was interrupted or was not completed.

(c) Coverage may be limited to specific facilities only if the carrier provides or contracts for the provision of approved treatment programs under RCW 70.96A.020 that alone or in combination offer both inpatient and outpatient care and that comply with network adequacy requirements established in WAC 284-43-200. This right to limit coverage to specific facilities permits a carrier to limit diagnosis and treatment to that rendered by itself or by a facility to which it makes referrals, but, in either case, only if the facility is or is a part of an approved treatment program under RCW 70.96A.020.

(d) A carrier may require prenotification in all reasonable situations, and may require a second opinion if a second opinion is required under the contract for other chronic illnesses. Prenotification with respect to medically necessary detoxification services is not reasonable and may not be required.

(6))) (7) Carriers who provide benefits through a defined network must contract with sufficient numbers of certified and licensed providers and facilities to provide inpatient and outpatient services. Health benefit plans that allow for out-of-network benefits must apply them to chemical dependency services consistent with medical and surgical benefits.

(8)(a) In certain circumstances, the carrier may require the enrollee to provide an initial assessment of the need for chemical dependency treatment and a treatment plan prior to scheduled treatment. ((This will enable the carrier to make its own evaluation of medical necessity.)) The assessment ((is)) may be at the enrollee's expense and must be provided no less than ten and no more than thirty working days before treatment is to begin. The circumstances are:

(i) Where an enrollee is court ordered to undergo a chemical dependency assessment or treatment;

(ii) Situations related to deferral of prosecution, deferral of sentencing or suspended sentencing; or

(iii) Situations pertaining to motor vehicle driving rights and the Washington state department of licensing.

(b) For the initial assessment in (a) of this subsection, the enrollee may choose any individual that is:

(i) Certified as a chemical dependency professional ((under chapter 246-811 WAC)); and

(ii) Employed by an approved treatment program ((under chapter 70.96A RCW)).

(c) Nothing in this chapter requires a carrier to pay for court ordered chemical dependency treatment that is not medically necessary, or relieves a carrier from its obligations to pay for court ordered chemical dependency treatment when it is medically necessary.

(((7))) (9) Unless chemical dependency treatment is determined not to be medically necessary, or except as otherwise specifically provided in this chapter, contractual provisions may not restrict access to treatment, continuity of care or payment of claims.

(((8) Any contract that provides coverage for chemical dependency must define "chemical dependency" consistent with the definitions contained in Title 48 RCW.)) (10)(a) The minimum benefit for chemical dependency treatment and supporting services, exclusive of all cost sharing amounts in any consecutive twenty-four-month period must be as follows:

(i) For contracts issued or renewed January 1, 2010, through December 31, 2010, the benefit must not be less than fifteen thousand dollars.

(ii) Each succeeding year from January 1, 2011, through December 31, 2015, the benefit must increase in increments of not less than five hundred dollars for new and renewing contracts.

(b) By January 1, 2015, the commissioner must begin a technical review that includes the actual and projected costs of the benefits and the consumer price index to establish the future minimum benefits for the five-year period beginning January 1, 2016. The commissioner must publish the new minimum benefit amounts by June 30, 2015.

[Statutory Authority: RCW 48.02.060, 48.21.197, 48.44.050, and 48.46.200. 04-22-051 (Matter No. R 2003-08), 284-53-010, filed 10/28/04, effective 11/28/04. Statutory Authority: RCW 48.02.060, 48.44.050, 48.46.200, 48.21.160, 48.21.180, 48.21.197, 48.44.240 and 48.46.350. 99-16-005 (Matter No. R 97-8), 284-53-010, filed 7/22/99, effective 8/22/99. Statutory Authority: RCW 48.02.060, 48.44.050 and 48.46.200. 87-18-050 (Order R 87-10), 284-53-010, filed 8/31/87, effective 1/1/88; 86-18-027 (Order R 86-2), 284-53-010, filed 8/27/86, effective 1/1/87.]

Washington State Code Reviser's Office