State and Territory Updates

Delaware

February 13, 2024

Delaware Mandatory Coverage of Annual Behavioral Health Well Check

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On January 25, 2024, the Delaware Department of Insurance issued a bulletin (No. 134) to remind all insurers in Delaware that beginning on January 1, 2024, insurers are required to cover annual behavioral health well checks.

A “behavioral health well check” is defined in the law as a pre-deductible annual visit with a licensed mental health clinician with, at minimum, a master’s level degree. The behavioral health well check visit 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 the patient’s stage of life using the diagnosis of “annual behavioral health well check.”

The annual behavioral health well check generally must be reimbursed at the same rate that such common procedural terminology codes are imbursed for the provision of other medical care.

29 Del.C. § 5215
Delaware Bulletin No. 134


April 25, 2023

Delaware Mandatory Retirement Savings Program

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The Delaware Expanding Access for Retirement and Necessary Saving (EARNS) program was signed into law in August 2022 without an effective date. When it takes effect, the Delaware EARNS program allows covered employees with no access to employer-sponsored retirement plans to voluntarily contribute to a state-facilitated payroll deduction individual retirement savings account program similar to a Roth IRA.

An employer is subject to the EARNS program if it employs at least five covered employees, has been conducting business in Delaware for at least six months in the immediately preceding calendar year, and does not offer employees tax-favored retirement plans (e.g., 401(k), 403(b)). Covered employees are employees who are at least 18 years old, have been employed by a covered employer, and have earned wages or other compensation in Delaware.

Employers should monitor the development and forthcoming regulations for the details of the program, including the effective date.

Delaware HB 205 »


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 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 »


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 »


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.

Sources

Deleware.gov, Bulletin No. 112, Insurance Coverage of Contraceptives (PDF)