State and Territory Updates

Delaware

November 08, 2022

Cost-Sharing Limitation for Diabetes Equipment and Supplies

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On October 22, 2022, Gov. Carney signed SB 316 into law. The new law prohibits group health plans from imposing a cost-sharing requirement greater than $35 per month per participant for diabetes equipment and supplies. This includes blood glucose meters and strips, urine testing strips, syringes, continuous glucose monitors and supplies, and insulin pump supplies. The $35 monthly maximum applies regardless of the amount or types of supplies and equipment prescribed. The limit applies once the participant’s deductible has been met.

The requirement is effective for policies issued or renewed on or after January 1, 2024. Employers should work with their insurer to make sure that the change is implemented and plan documents are updated.

SB 316 »


November 08, 2022

Fairness in Cost-Sharing for Prescription Drugs Act

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On October 26, 2022, Gov. Carney signed SB 267 into law. The new law requires insurers to include any prescription cost-sharing amount paid by the participant or by another party on behalf of the participant toward the participant’s cost sharing limits under the policy. Cost-sharing requirements include deductible, copayment, coinsurance or out-of-pocket maximum. For example, an amount paid by a drug manufacturer toward a participant’s cost for a prescription would be counted toward the deductible and out-of-pocket maximums. Importantly, if the policy is a qualified high deductible health plan (HDHP), this requirement does not apply until the participant has met the annual statutory HDHP deductible.

The new law is effective for policies issued or renewed on or after January 1, 2024. Employers should work with their carrier to make sure the changes are implemented to the policy and plan documents are revised.

SB 267 »


September 27, 2022

Coverage Required for Annual Behavioral Health Well Check

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On August 3, 2022, Gov. Carney signed HB 303 into law. The new law requires insurers to provide coverage for an annual behavioral health well check, which is defined as:

“A pre-deductible annual visit with a licensed mental health clinician with at minimum a masters level degree. The well check must include but is not limited to a review of medical history, evaluation of adverse childhood experiences, use of a group of developmentally appropriate mental health screening tools, and may include anticipatory behavioral health guidance congruent with stage of life using the diagnosis of annual behavioral health well check.”

The coverage may be limited to participating providers and may be subject to a copayment or coinsurance. The new law is effective January 1, 2024.

HB 303 »


May 24, 2022

Delaware Enacted Paid Family and Medical Leave Law

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On May 10, 2022, Gov. John Carney signed into law the Family and Medical Leave Insurance (FMLI) program called the “Healthy Delaware Families Act.” The payroll withholding of the employees’ contributions is scheduled to begin on January 1, 2025, and the benefits will be available to eligible employees starting January 1, 2026.

There are several key differences from other states’ PFML programs. For example, the minimum employer size that needs to comply with the Delaware FMLI program is an employer who employs 10 or more employees working in Delaware, in contrast to employers with at least one employee working in the state for other states’ PFML programs. Moreover, the Delaware FMLI program allows employers to include their employees who work outside of Delaware to participate in Delaware’s FMLI program voluntarily. Another major difference is employers, rather than the state, are responsible for approving or denying a claim application within five business days of receipt of a completed application with the required documentation. Once approved, the state’s Department of Labor will make the benefits payment to the eligible employees.

Overall, Delaware aligns many of the program’s details and terms with the federal FMLA, such as the definitions of the family members. Therefore, the eligible family members under the FMLI program are much narrower than other states’ PFML programs.

Below are the key highlights of the Delaware FMLI program:

Timeline

  • January 1, 2025: Contributions to Family and Medical Leave Insurance Fund begin
  • January 1, 2026: Benefits will be available to employees

Covered Employers

  • Employers with 10-24 covered employees during the previous 12 months must comply with the parental leave requirements only. Covered employees are those who primarily report to work at a Delaware worksite unless otherwise excluded. However, employers can reclassify an employee as a covered employee even when the EE works at a worksite in another state.
  • Employers with 25+ covered employees must comply with all the parental, family caregiving and medical leave requirements.

Funding of the Program

Employers can require covered employees to pay up to 50% of the total premium. Employers are responsible for the remaining premium amount. The contribution amounts in 2025 and 2026 are:

  • Parental leave: 0.32% of employee’s wages
  • Family caregiving leave: 0.08% of employee’s wages
  • Medical leave: 0.4% of employee’s wages

Employers are required to remit the total premium to the state at least quarterly as regulated by the department.

Eligibility to Take Leave

Covered employees are eligible when they have worked at least 1,250 hours over the 12-month period immediately preceding the date on which leave is to begin.

Qualified Reasons for Leave

  • EE’s own serious health condition (medical leave)
  • For an eligible EE to:
    • Care for a family member with a serious health condition (family leave)
    • Bond with a new child (by birth, adoption or fostering) during the first 12 months after the child’s birth or placement (parental leave)
    • Attend to a qualifying exigency arising out of a family member’s military deployment (family leave)

Maximum Benefits Duration

  • Aggregate of all combined leave: 12 weeks total in an application year
  • Parental leave: 12 weeks in an application year
  • Total family caregiver leave and medical leave: 6 weeks in 24-month period
  • Leave can be taken continuously or intermittently or reduced schedule basis only when medically necessary.

Maximum Benefits Amount

Covered employees are entitled to 80% of their average weekly wage up to $900 in 2026 and 2027. (After 2027, revisited annually and adjusted by the state as appropriate.)

Next Steps

Because the contributions do not begin until 2025, and the benefits will be available to eligible employees in 2026, employers have time to review the law closely against their existing leave policies and benefits eligibility, and consider how the new Delaware FMLI will coordinate with other leaves including the federal FMLA and STD. Moreover, employers should monitor any future guidance and developments as it is expected that the state will release more detailed guidance.

Healthy Delaware Families Act »


January 04, 2022

Coverage for Insulin Pumps

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Group health insurance policies issued or renewed after December 31, 2021, must provide coverage for a medically necessary insulin pump at no cost to a covered individual. An insurer may limit the coverage to only those expenses incurred through a network provider.

However, the requirement does not apply to qualified high deductible health plans as such coverage would be considered impermissible and render participants ineligible for HSA contributions. Current IRS guidance provides that insulin, glucometers and hemoglobin A1C testing are considered preventive care and may be covered prior to the statutory HSA deductible, but pumps are not included in that guidance.

Employer plan sponsors should work with their insurers to communicate the coverage change to participants. 

SB 107 »


January 04, 2022

Coverage for Children at High-Risk for Lead Poisoning

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Group health insurance policies that provide coverage for outpatient services must provide benefits for lead poisoning screening, testing, diagnostic evaluations, screening/testing supplies and home visits for children who are at risk for lead poisoning. The coverage may be subject to the plan’s normal cost-sharing provisions. The requirement applies to policies issued or renewed after December 31, 2021.

Employer plan sponsors should work with their insurers to communicate the coverage change to participants.

HB 222 »


July 20, 2021

Coverage for Epinephrine Autoinjectors

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On June 15, 2021, Gov. Carney signed HB 95 into law. The new law applies to policies issued or renewed after December 31, 2021. Such policies must provide coverage for medically necessary epinephrine autoinjectors for participants who are 18 years of age or under by including at least one formulation of epinephrine autoinjectors on the lowest tier of the drug formulary developed and maintained by the carrier. Epinephrine autoinjector means a single-use device used for the automatic injection of a premeasured dose of epinephrine into the human body.

Employers should understand the new coverage and work with carriers to revise and distribute the certificate of coverage to covered employees.

HB 95 »


July 20, 2021

Discrimination Prohibited Related to HIV Preventive Medication

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On June 15, 2021, Gov. Carney signed HB 111 into law. Effective immediately, the new law prohibits life insurance disability policies from discriminating against an individual solely because they have been prescribed pre-exposure prophylaxis medication to prevent HIV infection. Specifically, an insurer cannot refuse to renew, refuse to issue, cancel, restrict coverage or add a premium rating factor based on such fact.

Because of privacy issues, an employer likely will not know if an employee is on such medication. However, the employer should work with insurers to make sure that policies comply and any necessary plan document amendments are made.

HB 111 »


April 27, 2021

Nondiscrimination Standards in Insurance Expanded

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On April 13, 2021, Gov. Carney signed SB 32 into law. The new law, effective immediately, expands the nondiscrimination standards in insurance. Specifically, a carrier may not discriminate in the offer of an insurance policy or the premiums charged based on gender identity or race.

For this purpose, gender identity is defined as a gender-related identity, appearance, expression or behavior of a person, regardless of the person's assigned sex at birth. Gender identity may be demonstrated by consistent and uniform assertion of the gender identity or any other evidence that the gender identity is sincerely held as part of a person's core identity; provided, however, that gender identity shall not be asserted for any improper purpose.

For this purpose, race is expanded to include traits historically associated with race, including hair texture and a protective hairstyle (such as braids, locks and twists).

Insurers and plan sponsors should be aware of these changes to the nondiscrimination standards.

SB 32 »


November 10, 2020

State Insurance Update

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dThe Department of Insurance has revised and reissued Bulletin No. 86 to clarify coverage requirements related to gender identity. Effective September 4, 2020, health insurance policies are:

  • Prohibited from denying, cancelling, terminating, limiting, refusing to issue or renew, or restricting insurance coverage or benefits based on an individual’s gender identity or transgender status
  • Prohibited from denying, excluding or limiting coverage for medically necessary services based on the patient’s gender identify if the services are otherwise covered
  • Prohibited from containing a blanket exclusion for gender dysphoria, gender identity disorder, medically necessary surgeries or other treatments related to gender transition
  • Prohibited from imposing different premiums or rates for insurance coverage based on an insured’s gender identity

This bulletin will govern any fully insured policy issued in Delaware, so plan sponsors should familiarize themselves with these rules.

Bulletin No. 86 »


September 01, 2020

Coverage for Telehealth Expanded

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Under existing state law, policies providing hospital, medical and surgical coverage must also provide coverage for certain telehealth services. Effective July 17, 2020, and expiring July 1, 2021, House Substitute 1 for H.B. 348 expands that coverage to include telehealth services provided without the use of visual communication. This would include services provided via non-smart phones and landline connections. The plan cannot require a previously established relationship between the participant and the healthcare provider prior to the telehealth visit. The healthcare provider must be licensed to provide services in Delaware or the state in which they are located. Finally, coverage for telehealth services must include prescribing of controlled substances, including opioids.

The insurer providing the group policy should make the appropriate changes to the plan’s benefits to comply with the law. Employer plan sponsors should revise any plan documentation and communications as necessary to inform participants of the expanded coverage.

House Substitute 1 for H.B. 348 »


March 31, 2020

New COVID-19 Bulletin on Pre-Authorization Requirements, Telehealth, Non-Cancellation for Nonpayment of Premiums, and Catastrophic Plans

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On March 20, 2020, the Department of Insurance published Bulletin No. 116. The new bulletin is meant to provide additional guidance to carriers relating to COVID-19, particularly pertinent to the governor’s March 13, 2020, declaration of a state of emergency. The bulletin requests that carriers suspend cancellations and nonrenewals due to nonpayment of premium during the pendency of the state of emergency. In addition, the bulletin states that carriers should fully reimburse providers who are providing telemedicine services through telehealth, including all telehealth/telemedicine services (not just those relating to COVID-19).

The bulletin also states that early diagnosis and treatment of COVID-19 is imperative, and therefore that prior authorization requirements should be waived relating to the lab testing and treatment of confirmed or suspected COVID-19 patients. Finally, the bulletin states that catastrophic health coverage plans may be amended to provide pre-deductible coverage for services associated with the diagnosis and/or treatment of COVID-19 (normally, such plans may not provide coverage of an essential health benefits before an enrollee meets the plan’s deductible).

The bulletin contains no new employer requirements; employers should work with their carriers in understanding the bulletin’s directives for COVID-19-related coverage items and services.

Bulletin No. 116 »


March 17, 2020

Health Insurance Coverage for Coronavirus

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On March 9, 2020, the Department of Insurance published Bulletin No. 115, which relates to health insurance coverage for the coronavirus (COVID-19). According to the bulletin, small and individual plans must cover essential health benefits (EHBs), which include COVID-19-related laboratory tests.

For all fully insured plans (regardless of size), carriers cannot exclude a service for coverage solely because the service is provided through telemedicine services (which include a variety of platforms, including telephones, remote patient monitoring devices, and other electronic means such as web cameras and mobile video chat). In addition, carriers cannot use pre-authorization requirements as a barrier to access necessary treatment for COVID-19, and should expedite utilization review and appeal process for COVID-19 when medically appropriate.

On prescription drugs, an expedited formulary exception may be requested if the insured is suffering from a health condition that may seriously jeopardize the insured’s health, life or ability to regain maximum function, or if the insured is undergoing a current course of treatment using a non-formulary prescription drug. Additionally, PBMs are prohibited from requiring prior authorization for coverage of a 72-hour supply of medication that is for a non-controlled substance in an emergency. The Department expects insurers to provide for early refills or replacements of lost or damaged medications (even if the potential for quarantine is high). Lastly, consumers must be able to access their necessary prescriptions from a local retail pharmacy, even if their prescription supply is normally provided by mail order, without concern of a penalty.

Lastly, the bulletin states that carriers must cover diagnostic testing and waive patient cost sharing (deductibles, copayments and coinsurance), including for in-person and telemedicine visits.

The new bulletin applies directly to carriers, but are important reminders on coverage of COVID-19-relates services and items.

Bulletin No. 115 »


March 17, 2020

Coverage for Initial Depression Screenings

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On March 6, 2020, the Department of Insurance published Bulletin No. 114. The bulletin reminds carriers that initial depression screenings are considered a preventive service under the ACA, and therefore an enrollee should not be charged any cost sharing (deductible, copayment or coinsurance) for those screenings. The bulletin points to the American Psychiatric Association’s definition of “depression,” which is a common and serious illness that negatively affects how a person feels, thinks and acts. The bulletin reminds carriers that all people, starting at age 12, should be screened for depression (according to the U.S. Preventive Services Task Force).

The bulletin applies to carriers, but is helpful information for employers with regard to their fully insured plans and with regard to employees who may ask questions on coverage of initial depression screenings.

Bulletin No. 114 »


January 22, 2020

Contraceptive Coverage Mandate

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On December 5, 2019, the Department of Insurance issued Bulletin No. 112 related to the mandated coverage of certain contraceptives. As background, in July 2018, Gov. Carney signed SB 151 into law, which required health insurers to provide coverage for the following with no cost sharing for participants:

  • All FDA-approved birth control methods, including intrauterine devices (IUDs)
  • 12-months of birth control dispensed at one time
  • Emergency contraceptives without a prescription
  • Immediate insertion of long-acting reversible contraceptives (LARCs)

Again, this coverage is already required. The department issued the new bulletin to remind insurers of the last requirement related to LARCs, as it appears that insurers and hospitals have not been providing the service and benefit in an in-patient setting.

There is no action required of employers, but as a plan sponsor and fiduciary of a group health plan, they should monitor the performance of their carriers to make sure that the plan is providing the required coverage.

Bulletin No. 112 »


August 06, 2019

Efforts to Improve Efficiency of Claim Submissions and Payments

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On July 17, 2019, Gov. Carney signed HB 146 into law. The new law makes three changes to the relationship between health insurers and health care providers in an effort to make the process of claim submissions and payments more efficient.

First, health insurers must accept electronic claim submissions from non-pharmacy health care providers regardless of network status. Additionally, the insurer must electronically acknowledge the claim within two business days after submission.

Secondly, an insurer may not request medical records related to post-claim adjudication audits in more than 400 instances during a 45 day period per health care provider.

The third provision is the most relevant for group health plan sponsors and participants; an insurer must permit health care providers, regardless of network status, at least 180 days to submit a claim from the date of service. Any contract that imposes a shorter time frame for health care provider submission shall be revised by the insurer.

The effective date of these provisions is January 13, 2020. Although the changes do not require anything of employers, fully-insured plan sponsors should be mindful of these changes in how insurers will have to adjudicate claims.

HB 146 »


August 06, 2019

Step Therapy Protocol Exceptions

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On June 18, 2019, Gov. Carney signed House Substitute 1 for HB 105 into law. The new law requires health plans to grant exceptions to step therapy protocols under specific circumstances. As background, step therapy protocols require patients to try one or more prescription drugs before coverage is provided for a drug selected by the patient’s health care provider.

Effective for policies issued or renewed on or after March 18, 2020, health plans must grant exceptions in the following circumstances:

  • The required prescription drug is medically inadvisable, will likely cause an adverse reaction or physical/mental harm to the patient.
  • The required prescription drug is expected to be ineffective based on the known clinical characteristics of the patient and the known characteristics of the prescription drug regimen.
  • The patient has tried the required prescription drug while under the patient’s current or previous health benefit plan, or another prescription drug in the same pharmacologic class or with the same mechanism of action, and such prescription drug was discontinued due to lack of efficacy or effectiveness, diminished effect, or an adverse event.
  • The required prescription drug is not in the best interest of the patient, based on medical necessity.
  • The patient is stable, for the medical condition under consideration, on a prescription drug prescribed by the patient’s health care provider or while the patient was insured by the patient’s current or a previous health benefit plan.

HS 1 for HB 105 »


August 06, 2019

Prescription Drug Cost Sharing Limit

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On June 19, 2019, Gov. Carney signed HB 24 into law. The new law prohibits an insurer or pharmacy benefits manager from imposing a copayment or coinsurance for a covered prescription drug that exceeds the lesser of the usual and customary price or the contract price of the drug. The law is effective for policies issued or renewed on or after January 1, 2020.

HB24 »


October 30, 2018

Coverage for Treatment of Back Pain

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On Sept. 10, 2018, Gov. Carney signed SB 225 into law, which encourages the use of non-opioid methods of treating back pain. Effective 180 days from enactment, health insurance policies may not impose a limit on the number of chiropractic or physical therapy visits for the treatment of back pain.

SB 225 »


October 16, 2018

Mandated Coverage for In Vitro Fertilization and Other Fertility Services

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On Oct. 9, 2018, the Department of Insurance issued Revised Bulletin 103. The bulletin clarifies that all individual and group health insurance policies issued in Delaware on or after June 30, 2018 must provide coverage for certain fertility care services:

  • In vitro fertilization services for individuals who suffer from a disease or condition that results in the inability to procreate or to carry a pregnancy to live birth
  • Standard fertility preservation services for individual who must undergo medically necessary treatment that may cause iatrogenic infertility (an impairment due to surgery, radiation, chemotherapy or other medical treatment)

These benefits must be provided to all participants including spouses and dependents.

Bulletin 103 »


October 16, 2018

Revised Regulations Related to MEWAs

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On Sept. 1, 2018, the Department of Insurance issued emergency regulations related to multiple employer welfare arrangements (MEWAs). The regulations were effective upon signing and will apply to any association health plan (AHP) that that covers a Delaware resident.

A fully insured association must be licensed with the Department. In order to obtain a license, the association must submit the following to the Department:

  • Biographical information of all principals, officers, directors and trustees
  • Identification of all participating employers
  • Identification of third party administrators
  • Eligibility requirements for association membership
  • Description of association’s member benefits
  • Copy of the association’s by-laws, articles of incorporation or trust instrument
  • Copy of contracts between the association and insurers to provide health care benefits in DE
  • Any marketing or advertising materials used by the association
  • Most recent audited financial statements
  • Copy of the most recently filed Form M-1
  • Proof of minimum surplus in the amount of $500,000
  • Proof of surety bond in the amount of $500,000 to ensure the association’s obligations to health plan members
  • $1,000 filing fee

Additionally, the association must submit the following to the Department annually:

  • Proof of health insurance coverage
  • Demographic information of third party administrators
  • Notice of any changes to previously filed information (such as changes to trustees, officers, insurance coverage, plan document, by-laws, marketing material and so on)
  • Most recent audited financial statements
  • Documentation of preceding year’s and upcoming year’s annual premiums
  • Proof of a surety bond sufficient to cover at least 20% of annual premium for DE members
  • $150 filing fee

The association must:

  • Exist for at least 5 years
  • Be formed and maintained for purposes other than insurance
  • Not condition membership on any health status related factor

The member employers must be in the same industry or have their principal place of business in DE. The AHP can’t restrict membership to a particular part of the state.

The association may be rated on the collective group experience with each subscriber receiving the same community rate. The following rating factors are prohibited:

  • Age
  • Gender
  • Health status, including pre-existing conditions
  • Industry
  • Medical underwriting and screening

The AHP must provide coverage for all DE mandated benefits and essential health benefits. The coverage must be in compliance with the ACA’s cost sharing limits, prohibition on lifetime and annual dollar limits and 60 percent actuarial value.

The regulations also addressed self-insured AHPs. Until revised regulations are issued, self-insured AHPs will be subject to all of the state’s insurance requirements including licensure as an insurer, mandated benefits, financial reserves and reporting.

Emergency Regulations »


September 18, 2018

Stop-Loss Policies Extended to Small Employers

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On Sept. 4, 2018, Gov. Carney signed HB 406 into law, which became effective on the date of signing. The new law permits stop-loss coverage to be purchased by small employers with more than five eligible employees, the majority of whom are employed within Delaware on at least 50 percent of working days in the preceding calendar quarter. The law previously prohibited insurers from selling stop-loss coverage to small employers with 15 or fewer employees.

HB 406 »


September 18, 2018

Prior Authorization Requirements Restricted for Certain Prescriptions

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On Aug. 28, 2018, Gov. Carney signed HB 441 into law, which became effective on the date of signing. The new law prohibits pharmacy benefit managers from requiring a prior authorization for an initial prescription for a narcotic or benzodiazepine drug that’s prescribed in an emergency situation for 72 hours or less. An emergency is defined as a situation that will result in the loss of life, limb or organ function.

Additionally, the new law prohibits a pharmacy benefits manager from requiring a prior authorization for a prescription medication related to a chronic or long-term condition more frequently than once per 12 months. For this purpose, the prescription medication must be necessary for the life of the patient.

HB 441 »


September 18, 2018

Pharmacy Gag Clauses Prohibited

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On Aug. 28, 2018, Gov. Carney signed HB 425 into law. The new law prohibits contracts between pharmacies and pharmacy benefit managers from containing what’s commonly referred to as a gag clause. A gag clause prohibits a pharmacy from informing a consumer that they have options related to their prescription — specifically, purchasing the prescription for a retail price that’s lower than the price offered through their health insurance plan.

Under the new law, which applies to contracts entered into or renewed on or after Aug. 28, 2018, a pharmacy is permitted to:

  • Provide an insured with information regarding the retail price of a prescription drug or the amount of the cost share under the insured’s health insurance policy; and
  • Discuss with an insured information about a more affordable, therapeutically equivalent prescription drug and selling that drug to the insured

HB 425 »


September 18, 2018

Coverage for Pediatric Autoimmune Neurophsychiatric Disorders

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On Aug. 28, 2018, Gov. Carney signed HB 386 into law. Group health insurance policies issued or renewed on or after that date must provide coverage for the treatment of pediatric autoimmune neuropsychiatric disorders associated with streptococcal infections and pediatric acute onset neuropsychiatric syndrome. Treatment coverage must specifically include the use of intravenous immunoglobulin therapy.

HB 386 »


August 07, 2018

Experimental Treatment Coverage

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On June 13, 2018, Gov. Carney signed HS 1 into law. The new law prohibits group health policies from denying coverage for a National Coverage Determination Service on the basis that such service, item or treatment is experimental or investigational. National Coverage Determination Service is defined as a service, item or treatment which has been determined to be covered nationally by HHS for Medicare purposes. In other words, if a service has been determined to be an eligible expense under Medicare, a group health plan issued or renewed in DE cannot exclude coverage for that service based on the reason that it is experimental.

The law was effective upon the governor's approval.

HS 1 »
HHS Listing of National Coverage Determinations »


July 24, 2018

Mandated Coverage for Certain Infertility Treatments

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On June 30, 2018, Gov. Carney signed SB 139 into law. The new law requires group health plans to cover certain services related to fertility. Participants are eligible if they have a diagnosis of infertility or are at risk of iatrogenic infertility, which is an impairment of fertility due to surgery, radiation, chemotherapy or other medical treatment. Subscribers, spouses and non-spouse dependents are equally covered.

The law mandates coverage for sixteen identified services, including cryopreservation of eggs/sperm/embryos, storage of eggs/sperm/embryos, intrauterine insemination and embryo transfers. Coverage for in vitro fertilization (IVF) is only available to participants who have been unable to obtain a successful pregnancy through less costly treatments. Retrievals must be completed before the participant is age 45 and transfers must be completed before the participant is age 50. Plans aren’t required to provide monetary payment to surrogates or provide coverage for reversal of voluntary sterilization.

The requirement doesn’t apply to self-insured group health plans or plans maintained by employers with fewer than 50 employees. An exemption is available for religious employers for whom the coverage conflicts with their bona fide religious beliefs and practices.

The new law was effective upon the governor’s signature.

S.B. 139 »


October 31, 2017

Coverage for Cancer Treatment

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On Sept. 20, 2017, Gov. Carney signed HB 120 into law, which applies to policies that provide coverage for the treatment of stage four advanced metastatic cancer. Such policies are prohibited from mandating that the insured first be required to fail to successfully respond to a different drug or prove a history of failure of such drug before providing benefits for a prescribed drug (sometimes called step therapy). The law is effective for policies issued or renewed on or after Sept. 1, 2017.

This new law doesn’t contain any new employer compliance obligations. However, Delaware employers will want to be aware of the changes to the insurance laws in Delaware should employees have questions regarding health insurance coverage.

HB 120 »


October 31, 2017

Coverage of Drug and Alcohol Dependencies

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Effective for plans issued or renewed on or after Jan. 1, 2018, SB 41 amends the Insurance Code’s provisions on coverage of serious mental illness. The new law requires insurers that provide major medical coverage to provide inpatient coverage for the diagnosis and treatment of drug and alcohol dependencies and unlimited medically necessary treatment for drug and alcohol dependencies provided in residential settings. A plan that provides prescription drug coverage must provide coverage for the treatment of alcohol and drug dependencies that includes immediate access, without prior authorization, to a five-day emergency supply of medicines covered under the health plan when a medical emergency exists (such as the management of opioid withdrawal or stabilization, or reversal of an opioid overdose). Coverage may be subject to the plan’s normal cost-sharing provisions.

Additionally, an insurer may not impose precertification, prior authorization, pre-admission screening or referral requirements for the diagnosis and medically necessary treatment, including in-patient treatment, of drug and alcohol dependency.

This new law doesn’t contain any new employer compliance obligations. However, Delaware employers will want to be aware of the changes to the insurance laws in Delaware should employees have questions regarding health insurance coverage.

SB 41 »


January 24, 2017

2018 FFE State Partnership Exchange

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On Jan. 11, 2017, the Delaware Department of Insurance issued Bulletin No. 92, which proclaims the state’s intention to operate a federally-facilitated exchange (FFE) state partnership in 2018. The state’s responsibility in the partnership will be to continue to review and certify qualified health plan options to be offered through the exchange in both the individual and small group markets.

The remainder of the bulletin outlines the state’s insurance mandates with which the policies would need to comply, including coverage for essential health benefits, mental health parity, telehealth services, reimbursement of a licensed midwife and availability of provider directories for those with limited English proficiency and/or disabilities. It is worth noting that these mandates generally apply to insurance policies outside of the exchange as well.

Bulletin No. 92 »


August 23, 2016

Pre-Authorizations

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On July 13, 2016, Gov. Markell signed HB 381 into law. The new law requires utilization review entities (which include health insurers, health benefit plans and health service corporations) to detail any pre-authorization requirements and restrictions readily accessible on its website and in written/electronic form upon request for participants, health care providers, government entities and the general public. Any change in the procedures must be communicated prior to the effective date.

Utilization review entities must process clean pre-authorizations for non-emergency pharmaceuticals within two calendar days; three calendar days for those related to health care services and submitted electronically; and five calendar days for those related to health care services and not submitted electronically.

A pre-authorization shall be valid for one year from the date that the health care provider receives the authorization, dependent upon continued coverage and eligibility of the participant.

There is no requirement of employers, but it is helpful for plan sponsors to understand how their insured group health plans and participants will be impacted by the amended procedures.

The new law is effective Jan. 1, 2017.

HB 381 »


April 05, 2016

April 5, 2016

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On March 23, 2016, the Delaware Department of Insurance issued Bulletin No. 86. The bulletin provides guidance regarding the Gender Identity Nondiscrimination Act of 2013, which prohibits insurers from discriminating against an individual because of gender identity. The department interprets the act along with the Unfair Trade Practices Act and the ACA to prohibit a carrier from excluding, denying or otherwise limiting coverage for medically necessary services, as determined by a medical provider, based on the individual’s gender identity if the service would be covered for another participant. Further, a carrier may not impose a general exclusion for gender dysphoria or gender identity disorder.

Carriers must provide coverage, including under a group health policy,for medically necessary surgeries or treatments related to gender transition. Importantly, the 2016 state benchmark plan includes an exclusion for “change of sex surgery,” which the department warns is a violation of the law. The bulletin and its guidance are effective immediately.

Bulletin No. 86 »


February 09, 2016

February 9, 2016

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On Feb. 1, 2016, Insurance Commissioner Stewart adopted final regulations related to HB 69, which was passed July 2015. As background, HB 69, effective Jan. 1, 2016, requires group health insurance policies issued in Delaware to provide coverage for telehealth and telemedicine. For this purpose, “telehealth” is defined as the use of information and communication technologies (including telephone, remote monitoring devices and other electronic means) to support clinical health care, provider consultation and patient education. Telemedicine is defined as the delivery of health care services by real time two-way audio, visual or telecommunications (including video conferencing). The health care provider must be practicing within his or her scope of practice.

The regulations prohibit an insurer from placing additional restrictions on telehealth services, such as preauthorization, medical necessity or homebound requirements that are not placed on similar non-telehealth services. The regulations are effective Feb. 11, 2016.

Final Regulations »


January 12, 2016

January 12, 2016

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On Dec. 10, 2015, the Delaware Department of Insurance amended Bulletin No. 51 regarding the state’s mini-COBRA requirements for small employers. The amended bulletin includes a revised model notice for employers to distribute to terminated employees notifying them of their right to continuation.

Bulletin No. 51 »

Model Notice »


October 20, 2015

DE State Updates - 2015 Jan 20 No.02

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On Sept. 29, 2015, Insurance Commissioner Stewart announced the 2016 approved rates for qualified health plans in the state exchange. The average rate increases for individual policies range from 16.9 percent to 22.4 percent compared to 2015 rates, depending on the insurer, and -0.5 to 12.7 percent for small groups. Premium rates for small groups purchasing coverage through the SHOP will vary by age, but average from $250.48 per month for a bronze plan to $359.75 for gold. While the individual policy offerings do not affect employers, it may be helpful for employers to understand what is available through the exchange when responding to employee questions. Also, small employers with up to 50 employees have the option of purchasing group coverage through the SHOP. Please consult your advisor with any questions.

Annoucement »


October 20, 2015

DE State Updates - 2015 Jan 20 No.01

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On Oct. 15, 2015, Insurance Commissioner Stewart issued Bulletin No. 79 related to the definition of small group under state law. Delaware insurance statutes define a small group as an employer with up to 50 employees. Because the federal provision mandating the change of small group to 100 employees is no longer in effect as a result of the PACE Act, Delaware will keep the definition of small group at 50 employees. Thus, groups with 51 to 100 employees will continue to be rated as large groups and will not be required to switch to the small group market in 2016.

Bulletin No. 79 »


October 20, 2015

DE State Updates - 2015 Jan 20 No.03

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On Oct. 15, 2015, Insurance Commissioner Stewart issued Bulletin No. 79 related to the definition of small group under state law. Delaware insurance statutes define a small group as an employer with up to 50 employees. Because the federal provision mandating the change of small group to 100 employees is no longer in effect as a result of the PACE Act, Delaware will keep the definition of small group at 50 employees. Thus, groups with 51 to 100 employees will continue to be rated as large groups and will not be required to switch to the small group market in 2016.

Bulletin No. 79 »


October 20, 2015

DE State Updates - 2015 Jan 20 No.04

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On Sept. 29, 2015, Insurance Commissioner Stewart announced the 2016 approved rates for qualified health plans in the state exchange. The average rate increases for individual policies range from 16.9 percent to 22.4 percent compared to 2015 rates, depending on the insurer, and -0.5 to 12.7 percent for small groups. Premium rates for small groups purchasing coverage through the SHOP will vary by age, but average from $250.48 per month for a bronze plan to $359.75 for gold. While the individual policy offerings do not affect employers, it may be helpful for employers to understand what is available through the exchange when responding to employee questions. Also, small employers with up to 50 employees have the option of purchasing group coverage through the SHOP. Please consult your advisor with any questions.

Annoucement »


September 22, 2015

DE State Updates - 2015 Jan 22 No.01

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On Sept. 1, 2015, the Delaware Department of Insurance issued Bulletin No. 76, which clarifies the state’s requirements related to individual hospital or other fixed indemnity policies.. For any policies issued on or after Jan. 1, 2015, the policies must meet the following criteria to be in compliance with federal and state law:

The insurance application must include an attestation that the insured has minimum essential coverage under another policy or plan. The application must also include model notice language indicating that the policy is a supplement for health insurance and is not a substitute for major medical coverage. The notice must also inform the insured that the lack of minimum essential coverage may result in a tax penalty.

Employers who make such coverage available to employees should be aware of the new requirements.

Bulletin No. 76 »


September 22, 2015

DE State Updates - 2015 Jan 22 No.02

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On Sept. 1, 2015, the Delaware Department of Insurance issued Bulletin No. 76, which clarifies the state’s requirements related to individual hospital or other fixed indemnity policies.. For any policies issued on or after Jan. 1, 2015, the policies must meet the following criteria to be in compliance with federal and state law:

The insurance application must include an attestation that the insured has minimum essential coverage under another policy or plan. The application must also include model notice language indicating that the policy is a supplement for health insurance and is not a substitute for major medical coverage. The notice must also inform the insured that the lack of minimum essential coverage may result in a tax penalty.

Employers who make such coverage available to employees should be aware of the new requirements.

Bulletin No. 76 »


August 11, 2015

DE State Updates - 2015 Jan 11 No.02

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On July 7, 2015, Gov. Markell signed HB 69 into law. The new law requires group health plans to provide coverage for health care services provided through telemedicine. ‘Telemedicine’ is defined as the delivery of health care services by means of real time two-way audio, visual or other telecommunications or electronic communications and includes the assessment, diagnosis, consultation, treatment, education, care management and self-management of a patient’s health care. The plan may not impose a higher deductible, copayment or coinsurance amount for telemedicine services than would apply if the same service were provided through in-person consultation. The law is effective for policies issued or renewed on or after Jan. 1, 2016.

HB 69 »


August 11, 2015

DE State Updates - 2015 Jan 11 No.01

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On July 7, 2015, Gov. Markell signed HB 69 into law. The new law requires group health plans to provide coverage for health care services provided through telemedicine. ‘Telemedicine’ is defined as the delivery of health care services by means of real time two-way audio, visual or other telecommunications or electronic communications and includes the assessment, diagnosis, consultation, treatment, education, care management and self-management of a patient’s health care. The plan may not impose a higher deductible, copayment or coinsurance amount for telemedicine services than would apply if the same service were provided through in-person consultation. The law is effective for policies issued or renewed on or after Jan. 1, 2016.

HB 69 »


June 30, 2015

DE State Updates - 2015 Jan 30 No.02

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On June 15, 2015, HHS conditionally approved Delaware’s application for a state-based health insurance marketplace for individual and SHOP coverage. The state’s marketplace is currently a partnership. If the state meets the conditions outlined by HHS, the state-based marketplace would be effective for 2016.

HHS Conditional Approval Letter »


June 30, 2015

DE State Updates - 2015 Jan 30 No.01

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On June 15, 2015, HHS conditionally approved Delaware’s application for a state-based health insurance marketplace for individual and SHOP coverage. The state’s marketplace is currently a partnership. If the state meets the conditions outlined by HHS, the state-based marketplace would be effective for 2016.

HHS Conditional Approval Letter »


June 02, 2015

DE State Updates - 2015 Jan 02 No.01

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On May 21, 2015, Insurance Commissioner Stewart announced that Aetna Health, Inc. and Highmark Blue Cross Blue Shield Delaware will offer employers with 51 to 100 employees the opportunity to renew their group health insurance policies at large group rates for policy plan years beginning on or before Oct. 1, 2016. This is in response to Commissioner Stewart’s Bulletin No. 75 providing carriers with such an option. Employers with 51 to 100 employees who do not take advantage of the opportunity provided by Aetna Health, Inc. and Highmark Blue Cross Blue Shield Delaware will be switched to a small group policy for plan years beginning on or after Jan. 1, 2016. The change in the definition of ‘small group’ is mandated by PPACA and includes modified community rating and mandated coverage for the essential health benefit categories.

Announcement »
Bulletin No. 75 »


June 02, 2015

DE State Updates - 2015 Jan 02 No.02

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On May 21, 2015, Insurance Commissioner Stewart announced that Aetna Health, Inc. and Highmark Blue Cross Blue Shield Delaware will offer employers with 51 to 100 employees the opportunity to renew their group health insurance policies at large group rates for policy plan years beginning on or before Oct. 1, 2016. This is in response to Commissioner Stewart’s Bulletin No. 75 providing carriers with such an option. Employers with 51 to 100 employees who do not take advantage of the opportunity provided by Aetna Health, Inc. and Highmark Blue Cross Blue Shield Delaware will be switched to a small group policy for plan years beginning on or after Jan. 1, 2016. The change in the definition of ‘small group’ is mandated by PPACA and includes modified community rating and mandated coverage for the essential health benefit categories.

Announcement »
Bulletin No. 75 »


January 13, 2015

DE State Updates - 2015 Jan 13 No.02

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On Sept. 2, 2014, Gov. Markell signed HB 294 into law. The new law requires that an employer take all reasonable steps to destroy personal identifying information that is no longer to be retained by the employer. The term personal identifying information includes an employee’s name (or first initial and last name) in combination with his or her signature, date of birth, social security number, passport number, driver’s license number, state identification number, insurance policy number, financial services account number, bank account number, credit card number, debit card number or any other financial or confidential health information. The employer must shred, erase or otherwise destroy or modify personal identifying information to make it entirely unreadable or indecipherable through any means. The law became effective Jan. 1, 2015.

HB 294  »


January 13, 2015

DE State Updates - 2015 Jan 13 No.01

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On Sept. 2, 2014, Gov. Markell signed HB 294 into law. The new law requires that an employer take all reasonable steps to destroy personal identifying information that is no longer to be retained by the employer. The term personal identifying information includes an employee’s name (or first initial and last name) in combination with his or her signature, date of birth, social security number, passport number, driver’s license number, state identification number, insurance policy number, financial services account number, bank account number, credit card number, debit card number or any other financial or confidential health information. The employer must shred, erase or otherwise destroy or modify personal identifying information to make it entirely unreadable or indecipherable through any means. The law became effective Jan. 1, 2015.

HB 294  »