Oregon Regulations

The Department of Consumer and Business Services (DCBS) released a proposed bulletin withdrawing their 12/2012 bulletin to insurers about coverage for people with conditions related to gender identity (GI) or gender dysphoria (GD). The purpose of this bulletin was to clarify prohibitions against discrimination based on GI and GD. Among other things, this bulletin adopts the mental health parity requirements present in the 2012 bulletin:

• Cannot make GI/GD a pre-existing condition for which coverage will be limited or denied
• Cannot deny or limit a service because it is associated with treatment of GI/GD if they do not deny or limit the same service for other medical conditions
• Cannot exclude any service just because it is associated with GI/GD or only when it is used in connection with GI/GD or gender reassignment; exclusions as such would be deemed discrimination
• Must cover certain medical services for people, regardless of their perceived gender, such as prostate exams for people who are biologically male but identify as women

The DCBS issued regulations establishing the requirements for Oregon’s benchmark health benefit plan for years beginning on and after January 1, 2017. The rules contain the following provisions related to parity:

• Bronze and silver health benefit plans meet the requirements of the Federal Parity Law
• Copays and coinsurance meet the requirements of the Federal Parity Law
• Annual or lifetime limits for mental or nervous conditions must comply with the “predominantly all-substantially all” test within the Federal Parity Law. This test is the analysis used to determine if financial requirements and quantitative treatment limitations are applied comparably for mental health and substance use disorder benefits and medical/surgical benefits

The DCBS issued a bulletin that explained to insurance plans what is required of them under the parity section of the state insurance law and the regulations that apply to it, what is required of them under the Federal Parity Law and its final regulation, and what is required of them relating to parity under the Affordable Care Act. This bulletin specifically expects plans to do the following:

• Must make coverage decisions for behavioral health services the same way they do for other medical services
• Cannot categorically deny all forms of a treatment that might be medically necessary, thereby making state and federal mandates “effectively meaningless”
• Review their appeals decisions and independent review organization (IRO) decisions for guidance on how to handle future behavioral health claims
• Medical necessity determinations and whether a behavioral health service is considered experimental must be “no more restrictive” than for other medical services
• Cannot tell insureds verbally that a service is not covered; must encourage insureds to submit a claim and then the plan can deny the claim in writing
• Must use peer-reviewed scientific studies and national or international clinical standards when making medical necessity determinations
• Make available to providers and insureds the plan’s medical necessity criteria and instances of how certain denials do not meet these criteria

The bulletin then goes into great detail about the state law, the Federal Parity Law and its final regulation, the ACA and its final regulation, and how all of this applies to various plans:

• History of state law and the plans to which it applies (pg. 3)
• Types of plans the different state and federal laws apply to and how (pg. 4)
• Coverage requirements of state law (pg. 4-5)
• Coverage requirements due to the Federal Parity Law and the ACA (pg. 5-6)
• Explanation of requirements related to quantitative treatment limitations and non-quantitative treatment limitations (pg. 6)
• Exclusions under state law and how federal law impacts these (pg. 7-8)
• States how DCBS will be monitoring external review decisions made by IROs to see if those decisions reveal patterns of possible non-compliance with state and federal law (pg. 9)

The DCBS issued a bulletin that explained to plans what is required of them under the section of the state insurance law about autism coverage, in addition to how the Federal Parity Law and the Affordable Care Act (ACA) affect how plans must cover autism services, including applied behavior analysis (ABA). The bulletin specifically expects plans to do the following:

• Must consider autism claims as mental health claims subject to state and federal parity laws
• ABA services cannot be categorically denied as experimental
• Cannot have categorical exclusions that effectively results in denial of all ABA or other medically necessary services
• ABA is considered a medical service
• May not refuse to credential certain groups of providers in a way that would effectively limit medically necessary mental health treatment
• Understand the the 25 hour per week language about ABA in state law is a floor for weekly ABA; if plans consider it a limit they are violating the Federal Parity Law
• Must comply with the parity bulletin summarized above in relation to services for autism

The bulletin then goes into greater detail about the state law, the Federal Parity Law and its final regulation, the ACA and its final regulation, and how all of this applies to various plans:

• Plans to which the state law applies (pg. 3)
• Coverage requirements under state law (pg. 3-4)
• Requirements under the Federal Parity Law (pg. 4)
• Exclusions or limitations (pg. 4)
• Provider qualifications under state law (pg. 4-5)
• Independent review organization decisions and their implications (pg. 5)

The DCBS released a Frequently Asked Questions (pdf | Get Adobe® Reader®) related to the two Mental Health Parity and Autism Spectrum Disorder Bulletins released during the same month. The FAQ clarifies the following information:

• How DCBS monitors independent review organization decisions to determine if insurer denial patterns need to be reviewed
• Claims determinations must be available in writing and be relatively predictable
• Oregon’s benchmark plan must provide coverage for applied behavioral analysis (ABA) treatment
• Credentialing requirements for ABA must be developed in the same manner as other provider credentialing requirements

The DCBS issued updated regulations that apply to the parity section of the state insurance law. In addition to restating some of the requirements of the law, the regulations clarify several things:

• All conditions in the DSM are covered, except for several exceptions that are not generally not considered mental illnesses or substance use disorders
• Copayments, coinsurance, reimbursement, and deductibles must be the same for behavioral health services as they are for other medical services, including preventive care services and prescription medications
• The processes for determining prescription medication formularies must be the same for behavioral health medications as they are for other medications
• Plans must use a single definition for medical necessity that applies to both behavioral health services and other medical services and plans must make sure this definition is applied uniformly to all behavioral health services
• Plans can only use non-quantitative treatment limitations (NQTLs) for behavioral health services if they use those same NQTLs the same way for other medical services

It is not possible to directly link to this regulation. To read it, click here and scroll down to 836-053-1404 and 836-053-1405, found near the bottom of the page.

The DCBS issued a bulletin to insurers clarifying requirements for individual plans and small employer fully-insured plans that are offered on the marketplace. This bulletin was rescinded by the 11/2014 bulletin about parity, summarized above, and the link to the bulletin is no longer available.

Among many other things, the bulletin advises plans of the following related to parity:

• Specifies specific disorder codes for behavioral health conditions in the DSM -IV plans must cover
• Identifies specific disorder codes for behavioral health conditions in the ICD that plans are not required to cover
• Clarifies that behavioral health coverage must comply with the Federal Parity Law

The DCBS also made a questions and answers document (pdf | Get Adobe® Reader®) to accompany this bulletin.

The DCBS issued a bulletin (pdf | Get Adobe® Reader®) to insurers about coverage for people with conditions related to gender identity (GI) or gender dysphoria (GD). The bulletin listed a number of requirements for insurance plans:

• Cannot make GI/GD a pre-existing condition for which coverage will be limited or denied
• Cannot deny or limit a service because it is associated with treatment of GI/GD if they do not deny or limit the same service for other medical conditions
• Cannot exclude any service just because it is associated with GI/GD or only when it is used in connection with GI/GD or gender reassignment; exclusions as such would be deemed discrimination
• Must cover behavioral health services for GI/GD for all people and that the DCBS would issue further regulations to clarify any inconsistencies between state law and state regulations
• Must cover certain medical services for people, regardless of their perceived gender, such as prostate exams for people who are biologically male but identify as women

The DCBS also released a document called “Insurance and Gender Identity Fact Sheet” (pdf | Get Adobe® Reader®) for insurers and consumers shortly after this bulletin was issued.

The DCBS fined Health Net of Oregon (pdf | Get Adobe® Reader®) $5,000 dollars for denying coverage for behavioral health services because the patients did not get prior authorization from Health Net. The DCBS took this action after investigating consumer complaints.