Delaware · Through 2026-10-01 (85 Del. Laws, c. 550)

18 Del. C. § 3578: Insurance coverage for mental health disorders and substance use disorders [For application of this section, see 81 Del. Laws, c. 29, § 3] [Effective Jan. 1, 2028].

(a) Definitions. —
For the purposes of this section, the following words and phrases shall have the following meanings:
(1) “ASAM criteria” means the latest version of comprehensive set of guidelines for placement, continued stay, and transfer or discharge of individuals with a primary diagnosis of a substance use disorder established by the American Society of Addiction Medicine (“ASAM”).
(2) “Carrier” means any entity that provides health insurance in this State. For the purposes of this section, “carrier” includes an insurance company, health service corporation, health maintenance organization, and any other entity providing a plan of health insurance or health benefits subject to state insurance regulation. “Carrier” also includes any third-party administrator or other entity that adjusts, administers, or settles claims in connection with health benefit plans.
(3) “Child and Adolescent Level of Care Utilization System / Service Intensity Instrument” or “CALOCUS-CASII” means the latest version of comprehensive set of guidelines for placement, continued stay, and transfer or discharge of children and adolescents aged 6 to 18 with a primary diagnosis of a mental health disorder established by the American Association for Community Psychiatry (“AACP”) and the American Academy of Child and Adolescent Psychiatry (“AACAP”).
(4) “Early Childhood Service Intensity Instrument” or “ECSII” means the latest version of the service planning tool established by AACAP for determination of the intensity of services for children and families with emotional, behavioral, or developmental needs, including those who are experiencing environmental stressors that may put them at risk for such problems.
(5) “Emergency care” means care provided to treat a mental health disorder or substance use disorder that meets the definition of an “emergency medical condition” as defined in § 3349 of this title.
(6) “Generally accepted standards of mental health disorder and substance use disorder care” means standards of care and clinical practice that are generally recognized by health-care providers practicing in relevant clinical specialties such as psychiatry, psychology, clinical social work, addiction medicine and counseling, and behavioral health treatment. Valid, evidence-based sources reflecting generally accepted standards of mental health disorder and substance use disorder care include published peer-reviewed scientific studies and medical literature and clinical practice guidelines and other recommendations of nonprofit health-care professional associations.
(7) “Health benefit plan” means any hospital or medical policy or certificate, major medical expense insurance, health service corporation subscriber contract, or health maintenance organization subscriber contract. Health benefit plan does not include accident-only, credit, dental, vision, Medicaid plans, long-term care or disability income insurance, coverage issued as a supplement to liability insurance, worker’s compensation or similar insurance, or automobile medical payment insurance.
“Health benefit plan” shall not include policies or certificates or specified disease, hospital confinement indemnity, or limited benefit health insurance, provided that the carrier offering such policies or certificates complies with the following:
a. The carrier files on or before March 1 of each year a certification with the Commissioner that contains the statement and information described in paragraph (a)(7)b. of this section.
b. The certification required in paragraph (a)(7)a. of this section shall contain the following:
1. A statement from the carrier certifying that policies or certificates described in this paragraph are being offered and marketed as supplemental health insurance and not as a substitute for hospital or medical expense insurance or major medical expense insurance.
2. A summary description of each policy or certificate described in this paragraph, including the average annual premium rates (or range of premium rates in cases where premiums vary by age, gender or other factors) charged for such policies and certificates in this State.
c. In the case of a policy or certificate that is described in this paragraph and that is offered for the first time in this State on or after January 1, 1999, the carrier files with the Commissioner the information and statement required in paragraph (a)(7)b. of this section at least 30 days prior to the date such a policy or certificate is issued or delivered in this State.
(8) “Level of Care Utilization System” or “LOCUS” means the latest version of comprehensive set of guidelines for placement, continued stay, and transfer or discharge of adults over 18 years of age with a primary diagnosis of a mental health disorder established by AACP.
(9) “Medically necessary” means a service or product addressing the specific needs of a covered person, for the purpose of screening, preventing, diagnosing, managing, or treating a mental health disorder or substance use disorder, including minimizing the progression of a disorder or its symptoms, in a manner that is all of the following:
a. In accordance with the generally accepted standards of mental health disorder and substance use disorder care.
b. Clinically appropriate in terms of type, frequency, extent, site, and duration.
c. Not primarily for the economic benefit of the carrier, purchaser, or for the convenience of the covered person, treating physician, or other health-care provider.
(10) “Mental health disorders and substance use disorders” means a mental health disorder or substance use disorder that falls under any of the diagnostic categories listed in the mental and behavioral disorders chapter of the most recent edition of the World Health Organization’s International Statistical Classification of Diseases and Related Health Problems, or that is listed in the most recent version of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, or the Diagnostic Classification of Mental Health and Developmental Disorders of Infancy and Early Childhood.
(11) “Nonprofit health-care professional association” means a not-for-profit health-care provider professional association or specialty society that is generally recognized by clinicians practicing in the relevant clinical specialty and that issues peer-reviewed guidelines, criteria, or other clinical recommendations developed through a transparent process, including the American Psychiatric Association, American Psychological Association, American Society of Addiction Medicine, American Academy of Child and Adolescent Psychiatry, and American Association for Community Psychiatry.
(12) “Serious mental illness” means any of the following mental health disorders: neurodevelopmental disorders; schizophrenia spectrum and other psychotic disorders; bipolar and related disorders; depressive disorders; anxiety disorders; obsessive-compulsive and related disorders; trauma- and stressor-related disorders; dissociative disorders; somatic symptom and related disorders; feeding and eating disorders; personality disorders; and disruptive, impulse-control, and conduct disorders. The diagnostic criteria set out in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders must be utilized to determine whether a beneficiary of a health benefit plan has a serious mental illness.
(13) “Urgent mental health disorder and substance use disorder care” means care that is delivered on an expedited basis for the treatment of an acute mental health disorder or substance use disorder with symptoms of sufficient severity pursuant to a determination by a licensed treating health-care provider, operating within the health-care provider’s scope of practice and professional expertise, that the failure to provide the service is likely to result in serious, long-term health complications or a material deterioration in the covered person’s or enrollee’s condition and prognosis.
(14) “Utilization review” means reviewing and approving, modifying, delaying, or denying, requests by health-care providers, covered persons, or their authorized representatives for coverage of health-care services, based in whole or in part on medical necessity, or for out-of-network services required pursuant to subsection (g) of this section.
(15) “Utilization review criteria” means any criteria, standards, protocols, or guidelines used by a carrier to conduct utilization review.
(b) Coverage of mental health disorders and substance use disorders. — (1) a. Carriers shall provide coverage for all medically necessary services for mental health disorders or substance use disorders under all health benefit plans delivered or issued for delivery in this State. Coverage for mental health disorders and substance use disorders must provide all of the following:
1. The levels of care described in the ASAM criteria, LOCUS, CALOCUS-CASII, and ECSII.
2. Unlimited medically necessary services for mental health disorders and substance use disorders as required by the Mental Health Parity and Addiction Equity Act of 2008 (29 U.S.C. § 1185a) and determined by the use of the full set of ASAM criteria, LOCUS, CALOCUS-CASII, and ECSII, including all of the following levels of care:
A. Treatment provided in residential settings.
B. Intensive outpatient programs.
C. Inpatient settings, including withdrawal management.
3. Emergency services to treat mental health disorders and substance use disorders, including emergency transportation to an appropriate provider or facility for the purposes of stabilization, mobile crisis response teams, crisis receiving and stabilization services, and other services necessary to screen, evaluate, and stabilize an individual experiencing a mental health or substance use disorder emergency.
4. For purposes of paragraph (b)(1)a.3. of this section, mobile crisis response services provided by a state-operated program or by a program authorized by the Division of Substance Abuse and Mental Health are considered emergency services. A carrier shall reimburse a state-operated or state-authorized mobile crisis program that submits claims for covered services consistent with this section. Nothing in this section requires a carrier to establish or duplicate a mobile crisis delivery system where this State operates or authorizes such services.
5. Nothing in this subsection requires a carrier to cover nonclinical placements or supports, including foster care or recovery residences that are not licensed or certified as behavioral health treatment programs under Delaware law; provided, however, that if a carrier provides coverage for such services or settings, the carrier shall apply the requirements of this section to that coverage and shall cover medically necessary clinical services, including services delivered in residential treatment settings, as required under paragraph (b)(1)a.2. of this section.
b. Subject to subsections (a), (c) through (e), (g), and (h) of this section, no carrier may issue for delivery, or deliver, in this State any health benefit plan that does any of the following:
1. Contains terms that place a greater financial burden on a covered person for covered services provided in the diagnosis and treatment of a mental health disorder or substance use disorder than for covered services provided in the diagnosis and treatment of any other illness or disease covered by the health benefit plan. By way of example, such terms include deductibles, co-pays, monetary limits, coinsurance factors, limits in the numbers of visits, limits in the length of inpatient stays, durational limits or limits in the coverage of prescription medicines.
2. Discriminates, in its benefit design or implementation of its benefit design, against covered persons because of their history of, present, or predicted mental health disorder or substance use disorder.
(2) a. A health benefit plan that provides coverage for prescription drugs must provide coverage for the treatment of mental health disorders and substance use disorders that includes immediate access, without prior authorization, to a 5-day emergency supply of prescribed medications covered under the health benefit plan for the medically necessary services of mental health disorders and substance use disorders where an “emergency medical condition,” as defined in § 3565(e) of this title, exists, including a prescribed drug or medication associated with the management of opioid withdrawal or stabilization, except where otherwise prohibited by law.
b. Coverage of an emergency supply of prescribed medications must include medication for opioid overdose reversal otherwise covered under the health benefit plan prescribed to a covered person.
c. Coverage provided under this paragraph (b)(2) may be subject to copayments, coinsurance, and annual deductibles that are consistent with those imposed on other benefits within the health benefit plan and in compliance with the Mental Health Parity and Addiction Equity Act of 2008's [29 U.S.C. § 1185a] financial requirements; provided, however, a health benefit plan must not impose an additional copayment or coinsurance on a covered person who received an emergency supply of the same medication in the same 30-day period in which the emergency supply of medication was dispensed.
d. This paragraph (b)(2) does not preclude the imposition of a copayment or coinsurance on the initial emergency supply of medication in an amount that is less than the copayment or coinsurance otherwise applicable to a 30-day supply of such medication, provided that the total sum of copayments or coinsurance for an entire 30-day supply of the medication does not exceed the copayment or coinsurance otherwise applicable to a 30-day supply of such medication.
(c) Eligibility for coverage. — Subject to the limitations set forth in subsection (d) of this section, a health benefit plan may condition coverage of services provided in the diagnosis and treatment of a mental health disorder or substance use disorder on any of the further requirements that the service or services:
(1) Must be rendered by a mental health disorder or substance use disorder professional licensed or certified by the State Board of Licensing, including psychologists, psychiatrists, social workers and such other mental health professionals, or a drug and alcohol counselor who has been certified by the Delaware Certified Alcohol and Drug Counselors Certification Board, or in a mental health disorder or substance use disorder facility licensed by this State or in a treatment facility approved by the Department of Health and Social Services or the Bureau of Alcoholism and Drug Abuse as set forth in Chapter 22 of Title 16 or substantially similar licensing entities in other states. Nothing in this paragraph (c)(1) affects a health benefit plan’s obligation to cover medically necessary team-based services, including coordinated specialty care and assertive community treatment, of a mental health disorder or substance use disorder so long as such services are supervised by a licensed or certified professional.
(2) Must be medically necessary.
(3) Must be covered services subject to any administrative requirements of the health benefit plan.
A health benefit plan may further condition coverage of services provided in the diagnosis and treatment of a mental health disorder or substance abuse disorder in the same manner and to the same extent as coverage for all other illnesses and diseases is conditioned. Such conditions may include, by way of example and not by way of limitation, precertification and referral requirements.
(d) Benefit management. — (1) A carrier may, directly or by contract with another qualified entity, manage the benefit prescribed by subsection (b) of this section in order to limit coverage of services provided in the diagnosis and treatment of a mental health disorder or substance use disorder as follows:
a. The management of benefits for mental health disorders or substance use disorders may be by methods used for the management of benefits provided for other medical conditions, including utilization review and the development and monitoring of treatment plans.
b. A carrier may not impose precertification, prior authorization, pre-admission screening, or referral requirements for the diagnosis and medically necessary services of serious mental illnesses or substance use disorders, including in-patient treatment. Nothing in § 3571U of this title may be construed to expand the prohibition in this paragraph (d)(1)b. to mental health disorder benefits not subject to this paragraph (d)(1)b.
c. The benefit prescribed by paragraph (b)(1) of this section may not be subject to concurrent utilization review during the first 14 days of any inpatient admission to a facility approved by a nationally recognized health-care accrediting organization or the Division of Substance Abuse and Mental Health, 30 days of intensive outpatient program treatment, or 5 days of inpatient withdrawal management, provided that the facility notifies the carrier of both the admission and the initial treatment plan within 48 hours of the admission. The facility shall perform daily clinical review of the patient and conduct periodic assessments using ASAM, LOCUS, CALOCUS-CASII, or ECSII, as appropriate to the covered person’s age and primary diagnosis, to determine continued stay, transfer, or discharge to ensure that the inpatient treatment is medically necessary for the covered person.
d. Any utilization review of treatment provided under paragraph (b)(1) of this section may include a review of all nonemergency care provided during such inpatient treatment, including all services provided during the first 14 days of such inpatient treatment, 30 days of intensive outpatient program treatment, or 5 days of inpatient withdrawal management; provided, however, the carrier may only deny coverage for any portion of the initial 14-day inpatient treatment on the basis that such nonemergency care was not medically necessary if such inpatient treatment was contrary to ASAM criteria, LOCUS, CALOCUS-CASII, or ECSII.
e. A carrier must ensure that a covered person does not have any financial obligation to an in-network provider for any treatment under paragraph (b)(1) of this section other than any copayment, coinsurance, or deductible otherwise required under the health benefit plan.
f. Utilization review and utilization review criteria may not deviate from current generally accepted standards of mental health disorder and substance use disorder care. In conducting utilization review, a carrier shall apply the relevant, age-appropriate criteria or guidelines set forth in the most recent versions of treatment criteria or guidelines developed by the nonprofit professional association for the relevant clinical specialty and shall not apply different, additional, conflicting, or more restrictive utilization review criteria. In conducting utilization review permitted by this subsection relating to service intensity or level of care placement, continued stay, or transfer or discharge, the carrier shall apply the ASAM criteria, LOCUS, CALOCUS-CASII, or ECSII, as applicable, and shall authorize placement at the service intensity and level of care consistent with that criteria. If the carrier’s application of the applicable patient placement criteria is not consistent with the service intensity or level of care placement requested by the covered person or the covered person’s provider, any adverse benefit determination notice must include full details of the carrier’s assessment under the applicable criteria to the provider and the covered person.
g. Notwithstanding paragraph (d)(1)f. of this section, the Commissioner, in consultation with the Division of Substance Abuse and Mental Health, may designate a specific edition or version of the ASAM criteria, LOCUS, CALOCUS-CASII, ECSII, or other nonprofit health-care professional association treatment criteria or guidelines required under paragraph (d)(1)f. of this section during a transition from 1 edition or version to a subsequent edition or version to ensure alignment with state licensure standards.
(2) [Repealed.]
(e) Exclusions. —
This section does not apply to plans or policies not within the definition of health benefit plan, as set out in subsection (a) of this section.
(f) [Repealed.]
(g) Availability of in-network services. —
(1) A carrier shall maintain an adequate network in each of its health benefit plans to ensure timely access to nonurgent mental health disorder and substance use disorder services within 10 business days and to urgent mental health disorder and substance use disorder services within 24 hours. If a covered person requests assistance from the carrier to obtain medically necessary services and the carrier fails to secure the delivery of those services from an appropriate in-network provider within applicable network adequacy standards established under state or federal law, the carrier shall, in a timely manner, execute a single-case agreement that allows the covered person to receive medically necessary services, including any follow-up services to complete a course of treatment, from an appropriate out-of-network provider. If the carrier identifies an appropriate in-network provider who can deliver medically necessary services within the applicable network adequacy standards and the covered person declines those services, the carrier has satisfied its obligation under this subsection. For purposes of this subsection, “appropriate provider” includes providers who have the training and experience necessary to provide age- and condition-appropriate services to treat the covered person under the requirements of this section.
(2) The single-case agreement executed pursuant to this subsection shall do all of the following:
a. Reimburse the out-of-network provider for covered services at a rate negotiated by the provider and the carrier.
b. Apply no greater cost-sharing requirements than would apply if the services were provided by an in-network provider, with such cost-sharing amounts accruing toward the in-network deductible and out-of-pocket maximum.
c. Specify the duration, scope, and services covered under the agreement.
d. Treat services provided pursuant to the agreement as covered services under the health benefit plan for the duration of the agreement.
e. Specify that the provider shall accept payment from the carrier and the covered person’s in-network cost sharing as payment in full.
(3) If the Commissioner determines that the carrier failed to execute a single-case agreement under this section in a timely manner, the Commissioner may order the carrier to hold the covered person harmless for any costs in excess of in-network cost-sharing that the covered person incurred to obtain medically necessary services from an out-of-network provider.
(4) A carrier shall disclose, in the health benefit plan policy and on the carrier’s publicly accessible website, a covered person’s rights under this subsection and the process by which a covered person may request assistance from the carrier in obtaining medically necessary services from an appropriate in-network provider within applicable network adequacy standards, including a telephone number and a dedicated webpage or electronic submission mechanism to make such requests, and the circumstances under which the carrier must enter into a single-case agreement with an out-of-network provider, with no greater cost-sharing than would apply if the services were provided by an in-network provider.
(h) Nothing in this section shall be construed to:
(1) Limit or reduce any benefit, entitlement, or coverage conferred by § 3570A of this title including provider and service eligibility.
(2) Prohibit exclusions for experimental or investigational services that comply with the parity requirements of § 3571U of this title.
(3) Require a carrier to switch to the latest version of the ASAM criteria, LOCUS, CALOCUS-CASII, or ECSII criteria, or diagnostic manuals or classifications during a plan year when a new version of the criteria or manuals is released after a plan year has begun.

Where this section sits in the code

Title 18. Insurance Code
Part I. Insurance
Chapter 35. Group and Blanket Health Insurance
Subchapter IV. Large Employer Health Insurance Standards

(a) Definitions. —

For the purposes of this section, the following words and phrases shall have the following meanings:

(1) “ASAM criteria” means the latest version of comprehensive set of guidelines for placement, continued stay, and transfer or discharge of individuals with a primary diagnosis of a substance use disorder established by the American Society of Addiction Medicine (“ASAM”).

(2) “Carrier” means any entity that provides health insurance in this State. For the purposes of this section, “carrier” includes an insurance company, health service corporation, health maintenance organization, and any other entity providing a plan of health insurance or health benefits subject to state insurance regulation. “Carrier” also includes any third-party administrator or other entity that adjusts, administers, or settles claims in connection with health benefit plans.

(3) “Child and Adolescent Level of Care Utilization System / Service Intensity Instrument” or “CALOCUS-CASII” means the latest version of comprehensive set of guidelines for placement, continued stay, and transfer or discharge of children and adolescents aged 6 to 18 with a primary diagnosis of a mental health disorder established by the American Association for Community Psychiatry (“AACP”) and the American Academy of Child and Adolescent Psychiatry (“AACAP”).

(4) “Early Childhood Service Intensity Instrument” or “ECSII” means the latest version of the service planning tool established by AACAP for determination of the intensity of services for children and families with emotional, behavioral, or developmental needs, including those who are experiencing environmental stressors that may put them at risk for such problems.

(5) “Emergency care” means care provided to treat a mental health disorder or substance use disorder that meets the definition of an “emergency medical condition” as defined in § 3349 of this title.

(6) “Generally accepted standards of mental health disorder and substance use disorder care” means standards of care and clinical practice that are generally recognized by health-care providers practicing in relevant clinical specialties such as psychiatry, psychology, clinical social work, addiction medicine and counseling, and behavioral health treatment. Valid, evidence-based sources reflecting generally accepted standards of mental health disorder and substance use disorder care include published peer-reviewed scientific studies and medical literature and clinical practice guidelines and other recommendations of nonprofit health-care professional associations.

(7) “Health benefit plan” means any hospital or medical policy or certificate, major medical expense insurance, health service corporation subscriber contract, or health maintenance organization subscriber contract. Health benefit plan does not include accident-only, credit, dental, vision, Medicaid plans, long-term care or disability income insurance, coverage issued as a supplement to liability insurance, worker’s compensation or similar insurance, or automobile medical payment insurance.

“Health benefit plan” shall not include policies or certificates or specified disease, hospital confinement indemnity, or limited benefit health insurance, provided that the carrier offering such policies or certificates complies with the following:

a. The carrier files on or before March 1 of each year a certification with the Commissioner that contains the statement and information described in paragraph (a)(7)b. of this section.

b. The certification required in paragraph (a)(7)a. of this section shall contain the following:

1. A statement from the carrier certifying that policies or certificates described in this paragraph are being offered and marketed as supplemental health insurance and not as a substitute for hospital or medical expense insurance or major medical expense insurance.

2. A summary description of each policy or certificate described in this paragraph, including the average annual premium rates (or range of premium rates in cases where premiums vary by age, gender or other factors) charged for such policies and certificates in this State.

c. In the case of a policy or certificate that is described in this paragraph and that is offered for the first time in this State on or after January 1, 1999, the carrier files with the Commissioner the information and statement required in paragraph (a)(7)b. of this section at least 30 days prior to the date such a policy or certificate is issued or delivered in this State.

(8) “Level of Care Utilization System” or “LOCUS” means the latest version of comprehensive set of guidelines for placement, continued stay, and transfer or discharge of adults over 18 years of age with a primary diagnosis of a mental health disorder established by AACP.

(9) “Medically necessary” means a service or product addressing the specific needs of a covered person, for the purpose of screening, preventing, diagnosing, managing, or treating a mental health disorder or substance use disorder, including minimizing the progression of a disorder or its symptoms, in a manner that is all of the following:

a. In accordance with the generally accepted standards of mental health disorder and substance use disorder care.

b. Clinically appropriate in terms of type, frequency, extent, site, and duration.

c. Not primarily for the economic benefit of the carrier, purchaser, or for the convenience of the covered person, treating physician, or other health-care provider.

(10) “Mental health disorders and substance use disorders” means a mental health disorder or substance use disorder that falls under any of the diagnostic categories listed in the mental and behavioral disorders chapter of the most recent edition of the World Health Organization’s International Statistical Classification of Diseases and Related Health Problems, or that is listed in the most recent version of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, or the Diagnostic Classification of Mental Health and Developmental Disorders of Infancy and Early Childhood.

(11) “Nonprofit health-care professional association” means a not-for-profit health-care provider professional association or specialty society that is generally recognized by clinicians practicing in the relevant clinical specialty and that issues peer-reviewed guidelines, criteria, or other clinical recommendations developed through a transparent process, including the American Psychiatric Association, American Psychological Association, American Society of Addiction Medicine, American Academy of Child and Adolescent Psychiatry, and American Association for Community Psychiatry.

(12) “Serious mental illness” means any of the following mental health disorders: neurodevelopmental disorders; schizophrenia spectrum and other psychotic disorders; bipolar and related disorders; depressive disorders; anxiety disorders; obsessive-compulsive and related disorders; trauma- and stressor-related disorders; dissociative disorders; somatic symptom and related disorders; feeding and eating disorders; personality disorders; and disruptive, impulse-control, and conduct disorders. The diagnostic criteria set out in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders must be utilized to determine whether a beneficiary of a health benefit plan has a serious mental illness.

(13) “Urgent mental health disorder and substance use disorder care” means care that is delivered on an expedited basis for the treatment of an acute mental health disorder or substance use disorder with symptoms of sufficient severity pursuant to a determination by a licensed treating health-care provider, operating within the health-care provider’s scope of practice and professional expertise, that the failure to provide the service is likely to result in serious, long-term health complications or a material deterioration in the covered person’s or enrollee’s condition and prognosis.

(14) “Utilization review” means reviewing and approving, modifying, delaying, or denying, requests by health-care providers, covered persons, or their authorized representatives for coverage of health-care services, based in whole or in part on medical necessity, or for out-of-network services required pursuant to subsection (g) of this section.

(15) “Utilization review criteria” means any criteria, standards, protocols, or guidelines used by a carrier to conduct utilization review.

(b) Coverage of mental health disorders and substance use disorders. — (1) a. Carriers shall provide coverage for all medically necessary services for mental health disorders or substance use disorders under all health benefit plans delivered or issued for delivery in this State. Coverage for mental health disorders and substance use disorders must provide all of the following:

1. The levels of care described in the ASAM criteria, LOCUS, CALOCUS-CASII, and ECSII.

2. Unlimited medically necessary services for mental health disorders and substance use disorders as required by the Mental Health Parity and Addiction Equity Act of 2008 (29 U.S.C. § 1185a) and determined by the use of the full set of ASAM criteria, LOCUS, CALOCUS-CASII, and ECSII, including all of the following levels of care:

A. Treatment provided in residential settings.

B. Intensive outpatient programs.

C. Inpatient settings, including withdrawal management.

3. Emergency services to treat mental health disorders and substance use disorders, including emergency transportation to an appropriate provider or facility for the purposes of stabilization, mobile crisis response teams, crisis receiving and stabilization services, and other services necessary to screen, evaluate, and stabilize an individual experiencing a mental health or substance use disorder emergency.

4. For purposes of paragraph (b)(1)a.3. of this section, mobile crisis response services provided by a state-operated program or by a program authorized by the Division of Substance Abuse and Mental Health are considered emergency services. A carrier shall reimburse a state-operated or state-authorized mobile crisis program that submits claims for covered services consistent with this section. Nothing in this section requires a carrier to establish or duplicate a mobile crisis delivery system where this State operates or authorizes such services.

5. Nothing in this subsection requires a carrier to cover nonclinical placements or supports, including foster care or recovery residences that are not licensed or certified as behavioral health treatment programs under Delaware law; provided, however, that if a carrier provides coverage for such services or settings, the carrier shall apply the requirements of this section to that coverage and shall cover medically necessary clinical services, including services delivered in residential treatment settings, as required under paragraph (b)(1)a.2. of this section.

b. Subject to subsections (a), (c) through (e), (g), and (h) of this section, no carrier may issue for delivery, or deliver, in this State any health benefit plan that does any of the following:

1. Contains terms that place a greater financial burden on a covered person for covered services provided in the diagnosis and treatment of a mental health disorder or substance use disorder than for covered services provided in the diagnosis and treatment of any other illness or disease covered by the health benefit plan. By way of example, such terms include deductibles, co-pays, monetary limits, coinsurance factors, limits in the numbers of visits, limits in the length of inpatient stays, durational limits or limits in the coverage of prescription medicines.

2. Discriminates, in its benefit design or implementation of its benefit design, against covered persons because of their history of, present, or predicted mental health disorder or substance use disorder.

(2) a. A health benefit plan that provides coverage for prescription drugs must provide coverage for the treatment of mental health disorders and substance use disorders that includes immediate access, without prior authorization, to a 5-day emergency supply of prescribed medications covered under the health benefit plan for the medically necessary services of mental health disorders and substance use disorders where an “emergency medical condition,” as defined in § 3565(e) of this title, exists, including a prescribed drug or medication associated with the management of opioid withdrawal or stabilization, except where otherwise prohibited by law.

b. Coverage of an emergency supply of prescribed medications must include medication for opioid overdose reversal otherwise covered under the health benefit plan prescribed to a covered person.

c. Coverage provided under this paragraph (b)(2) may be subject to copayments, coinsurance, and annual deductibles that are consistent with those imposed on other benefits within the health benefit plan and in compliance with the Mental Health Parity and Addiction Equity Act of 2008's [29 U.S.C. § 1185a] financial requirements; provided, however, a health benefit plan must not impose an additional copayment or coinsurance on a covered person who received an emergency supply of the same medication in the same 30-day period in which the emergency supply of medication was dispensed.

d. This paragraph (b)(2) does not preclude the imposition of a copayment or coinsurance on the initial emergency supply of medication in an amount that is less than the copayment or coinsurance otherwise applicable to a 30-day supply of such medication, provided that the total sum of copayments or coinsurance for an entire 30-day supply of the medication does not exceed the copayment or coinsurance otherwise applicable to a 30-day supply of such medication.

(c) Eligibility for coverage. — Subject to the limitations set forth in subsection (d) of this section, a health benefit plan may condition coverage of services provided in the diagnosis and treatment of a mental health disorder or substance use disorder on any of the further requirements that the service or services:

(1) Must be rendered by a mental health disorder or substance use disorder professional licensed or certified by the State Board of Licensing, including psychologists, psychiatrists, social workers and such other mental health professionals, or a drug and alcohol counselor who has been certified by the Delaware Certified Alcohol and Drug Counselors Certification Board, or in a mental health disorder or substance use disorder facility licensed by this State or in a treatment facility approved by the Department of Health and Social Services or the Bureau of Alcoholism and Drug Abuse as set forth in Chapter 22 of Title 16 or substantially similar licensing entities in other states. Nothing in this paragraph (c)(1) affects a health benefit plan’s obligation to cover medically necessary team-based services, including coordinated specialty care and assertive community treatment, of a mental health disorder or substance use disorder so long as such services are supervised by a licensed or certified professional.

(2) Must be medically necessary.

(3) Must be covered services subject to any administrative requirements of the health benefit plan.

A health benefit plan may further condition coverage of services provided in the diagnosis and treatment of a mental health disorder or substance abuse disorder in the same manner and to the same extent as coverage for all other illnesses and diseases is conditioned. Such conditions may include, by way of example and not by way of limitation, precertification and referral requirements.

(d) Benefit management. — (1) A carrier may, directly or by contract with another qualified entity, manage the benefit prescribed by subsection (b) of this section in order to limit coverage of services provided in the diagnosis and treatment of a mental health disorder or substance use disorder as follows:

a. The management of benefits for mental health disorders or substance use disorders may be by methods used for the management of benefits provided for other medical conditions, including utilization review and the development and monitoring of treatment plans.

b. A carrier may not impose precertification, prior authorization, pre-admission screening, or referral requirements for the diagnosis and medically necessary services of serious mental illnesses or substance use disorders, including in-patient treatment. Nothing in § 3571U of this title may be construed to expand the prohibition in this paragraph (d)(1)b. to mental health disorder benefits not subject to this paragraph (d)(1)b.

c. The benefit prescribed by paragraph (b)(1) of this section may not be subject to concurrent utilization review during the first 14 days of any inpatient admission to a facility approved by a nationally recognized health-care accrediting organization or the Division of Substance Abuse and Mental Health, 30 days of intensive outpatient program treatment, or 5 days of inpatient withdrawal management, provided that the facility notifies the carrier of both the admission and the initial treatment plan within 48 hours of the admission. The facility shall perform daily clinical review of the patient and conduct periodic assessments using ASAM, LOCUS, CALOCUS-CASII, or ECSII, as appropriate to the covered person’s age and primary diagnosis, to determine continued stay, transfer, or discharge to ensure that the inpatient treatment is medically necessary for the covered person.

d. Any utilization review of treatment provided under paragraph (b)(1) of this section may include a review of all nonemergency care provided during such inpatient treatment, including all services provided during the first 14 days of such inpatient treatment, 30 days of intensive outpatient program treatment, or 5 days of inpatient withdrawal management; provided, however, the carrier may only deny coverage for any portion of the initial 14-day inpatient treatment on the basis that such nonemergency care was not medically necessary if such inpatient treatment was contrary to ASAM criteria, LOCUS, CALOCUS-CASII, or ECSII.

e. A carrier must ensure that a covered person does not have any financial obligation to an in-network provider for any treatment under paragraph (b)(1) of this section other than any copayment, coinsurance, or deductible otherwise required under the health benefit plan.

f. Utilization review and utilization review criteria may not deviate from current generally accepted standards of mental health disorder and substance use disorder care. In conducting utilization review, a carrier shall apply the relevant, age-appropriate criteria or guidelines set forth in the most recent versions of treatment criteria or guidelines developed by the nonprofit professional association for the relevant clinical specialty and shall not apply different, additional, conflicting, or more restrictive utilization review criteria. In conducting utilization review permitted by this subsection relating to service intensity or level of care placement, continued stay, or transfer or discharge, the carrier shall apply the ASAM criteria, LOCUS, CALOCUS-CASII, or ECSII, as applicable, and shall authorize placement at the service intensity and level of care consistent with that criteria. If the carrier’s application of the applicable patient placement criteria is not consistent with the service intensity or level of care placement requested by the covered person or the covered person’s provider, any adverse benefit determination notice must include full details of the carrier’s assessment under the applicable criteria to the provider and the covered person.

g. Notwithstanding paragraph (d)(1)f. of this section, the Commissioner, in consultation with the Division of Substance Abuse and Mental Health, may designate a specific edition or version of the ASAM criteria, LOCUS, CALOCUS-CASII, ECSII, or other nonprofit health-care professional association treatment criteria or guidelines required under paragraph (d)(1)f. of this section during a transition from 1 edition or version to a subsequent edition or version to ensure alignment with state licensure standards.

(2) [Repealed.]

(e) Exclusions. —

This section does not apply to plans or policies not within the definition of health benefit plan, as set out in subsection (a) of this section.

(f) [Repealed.]

(g) Availability of in-network services. —

(1) A carrier shall maintain an adequate network in each of its health benefit plans to ensure timely access to nonurgent mental health disorder and substance use disorder services within 10 business days and to urgent mental health disorder and substance use disorder services within 24 hours. If a covered person requests assistance from the carrier to obtain medically necessary services and the carrier fails to secure the delivery of those services from an appropriate in-network provider within applicable network adequacy standards established under state or federal law, the carrier shall, in a timely manner, execute a single-case agreement that allows the covered person to receive medically necessary services, including any follow-up services to complete a course of treatment, from an appropriate out-of-network provider. If the carrier identifies an appropriate in-network provider who can deliver medically necessary services within the applicable network adequacy standards and the covered person declines those services, the carrier has satisfied its obligation under this subsection. For purposes of this subsection, “appropriate provider” includes providers who have the training and experience necessary to provide age- and condition-appropriate services to treat the covered person under the requirements of this section.

(2) The single-case agreement executed pursuant to this subsection shall do all of the following:

a. Reimburse the out-of-network provider for covered services at a rate negotiated by the provider and the carrier.

b. Apply no greater cost-sharing requirements than would apply if the services were provided by an in-network provider, with such cost-sharing amounts accruing toward the in-network deductible and out-of-pocket maximum.

c. Specify the duration, scope, and services covered under the agreement.

d. Treat services provided pursuant to the agreement as covered services under the health benefit plan for the duration of the agreement.

e. Specify that the provider shall accept payment from the carrier and the covered person’s in-network cost sharing as payment in full.

(3) If the Commissioner determines that the carrier failed to execute a single-case agreement under this section in a timely manner, the Commissioner may order the carrier to hold the covered person harmless for any costs in excess of in-network cost-sharing that the covered person incurred to obtain medically necessary services from an out-of-network provider.

(4) A carrier shall disclose, in the health benefit plan policy and on the carrier’s publicly accessible website, a covered person’s rights under this subsection and the process by which a covered person may request assistance from the carrier in obtaining medically necessary services from an appropriate in-network provider within applicable network adequacy standards, including a telephone number and a dedicated webpage or electronic submission mechanism to make such requests, and the circumstances under which the carrier must enter into a single-case agreement with an out-of-network provider, with no greater cost-sharing than would apply if the services were provided by an in-network provider.

(h) Nothing in this section shall be construed to:

(1) Limit or reduce any benefit, entitlement, or coverage conferred by § 3570A of this title including provider and service eligibility.

(2) Prohibit exclusions for experimental or investigational services that comply with the parity requirements of § 3571U of this title.

(3) Require a carrier to switch to the latest version of the ASAM criteria, LOCUS, CALOCUS-CASII, or ECSII criteria, or diagnostic manuals or classifications during a plan year when a new version of the criteria or manuals is released after a plan year has begun.

Collected 2026-10-21T05:49:49Z. Source file · JSON

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