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AN ACT relating to mental health parity and declaring an emergency. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
Section 1. KRS 304.17A-661 is amended to read as follows: 3
(1) Notwithstanding any other provision of law: 4
(a) 1. A health benefit plan[ issued or renewed on or after January 1, 2022,] 5
that provides coverage for treatment of a mental health condition shall 6
provide coverage of any treatment of a mental health condition under 7
terms or conditions that are no more restrictive than the terms or 8
conditions provided for treatment of a physical health condition. 9
2. Expenses for mental health and physical health conditions shall be 10
combined for purposes of meeting deductible and out-of-pocket limits 11
required under a health benefit plan. 12
3. A health benefit plan that does not otherwise provide for management of 13
care under the plan or that does not provide for the same degree of 14
management of care for all health or mental health conditions may 15
provide coverage for treatment of mental health conditions through a 16
managed care organization; 17
(b) With respect to mental health condition benefits in any classification of 18
benefits, a health benefit plan required to comply with paragraph (a) of this 19
subsection shall not impose: 20
1. A nonquantitative treatment limitation that does not apply to medical 21
and surgical benefits in the same classification; and 22
2. Medical necessity criteria or a nonquantitative treatment limitation 23
unless, under the terms of the plan, as written and in operation, any 24
processes, strategies, evidentiary standards, or other factors used in 25
applying the criteria or limitation to mental health condition benefits in 26
the classification are comparable to, and are applied no more stringently 27 UNOFFICIAL COPY 25 RS BR 1792
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than, the processes, strategies, evidentiary standards, or other factors 1
used in applying the criteria or limitation to medical and surgical 2
benefits in the same classification; and 3
(c) Paragraph (b) of this subsection shall be construed to require, at a minimum, 4
compliance with the requirements for nonquantitative treatment limitations set 5
forth in the Mental Health Parity and Addiction Equity Act of 2008, 42 U.S.C. 6
sec. 300gg-26, as amended, and any related federal regulations, as amended, 7
including but not limited to 45 C.F.R. secs. 146.136, 147.160, and 8
156.115(a)(3). 9
(2) (a) An insurer that issues or renews a health benefit plan that is subject to the 10
provisions of this section shall submit an annual report[ to the commissioner] 11
on or before April 1 of each year[ following January 1, 2022,] that contains 12
the following: 13
1. A description of the process used to develop or select the medical 14
necessity criteria for both mental health condition benefits and medical 15
and surgical benefits; 16
2. Identification of all nonquantitative treatment limitations applicable to 17
benefits and services covered under the plan that are applied to both 18
mental health condition benefits and medical and surgical benefits 19
within each classification of benefits; 20
3. The results of an analysis that demonstrates compliance with subsection 21
(1)(b) and (c) of this section for the medical necessity criteria described 22
in subparagraph 1. of this paragraph and for each nonquantitative 23
treatment limitation identified in subparagraph 2. of this paragraph, as 24
written and in operation. At a minimum, the results of the analysis shall: 25
a. Identify the factors used to determine that a nonquantitative 26
treatment limitation will apply to a benefit, including factors that 27 UNOFFICIAL COPY 25 RS BR 1792
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were considered but rejected; 1
b. Identify and define the specific evidentiary standards used to 2
define the factors and any other evidence relied upon in designing 3
each nonquantitative treatment limitation; 4
c. Provide the comparative analyses, including the results of the 5
analyses, performed to determine that the processes and strategies: 6
i. Used to design each nonquantitative treatment limitation, as 7
written, and the as-written processes and strategies used to 8
apply the nonquantitative treatment limitation to mental 9
health condition benefits are comparable to, and are applied 10
no more stringently than, the processes and strategies used to 11
design each nonquantitative treatment limitation, as written, 12
and the as-written processes and strategies used to apply the 13
nonquantitative treatment limitation to medical and surgical 14
benefits; and 15
ii. Used to apply each nonquantitative treatment limitation, in 16
operation, for mental health condition benefits are 17
comparable to, and are applied no more stringently than, the 18
processes and strategies used to apply each nonquantitative 19
treatment limitation, in operation, for medical and surgical 20
benefits; and 21
d. Disclose the specific findings and conclusions reached by the 22
insurer that the results of the analyses performed under this 23
subparagraph indicate that the insurer is in compliance with 24
subsection (1)(b) and (c) of this section; and 25
4. Any additional information that may be prescribed by the commissioner 26
for use in determining compliance with the requirements of this section. 27 UNOFFICIAL COPY 25 RS BR 1792
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(b) Each[The] annual report shall be: 1
1. Submitted by the insurer, in a manner and format prescribed by the 2
commissioner through administrative regulation, to the commissioner 3
and the Legislative Research Commission for referral on or before 4
June 1 of each year to the Interim Joint Committees on Health 5
Services and Banking and Insurance and any other appropriate 6
committees; and 7
2. Published for public distribution by the commissioner on the 8
department's website. 9
(3) (a) A willful violation of this section shall constitute an act of discrimination and 10
shall be an unfair trade practice under this chapter. 11
(b) The remedies provided under Subtitle 12 of this chapter shall apply to conduct 12
in violation of this section. 13
(4) (a) Subject to paragraph (c) of this subsection, the Attorney General may 14
enforce this section by bringing an action in the name of the 15
Commonwealth or on behalf of persons residing in the Commonwealth 16
against any person the Attorney General believes has violated, is violating, 17
or is likely to violate this section. 18
(b) The Attorney General: 19
1. May demand, and require the production of, any information, 20
documentary material, or evidence from any person the Attorney 21
General believes may have violated, may be violating, or may be likely 22
to violate this section; and 23
2. Shall have all of the powers and duties provided to the Attorney 24
General under KRS Chapter 15 to investigate and prosecute any 25
violation or likely violation of this section. 26
(c) 1. Prior to bringing an action under paragraph (a) of this subsection, the 27 UNOFFICIAL COPY 25 RS BR 1792
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Attorney General shall provide each person thirty (30) days written 1
notice of the specific provisions of this section that the Attorney 2
General believes the person has violated, is violating, or is likely to 3
violate. 4
2. Except as provided in subparagraph 3. of this paragraph, the Attorney 5
General shall not bring an action under paragraph (a) of this 6
subsection against a person if, within thirty (30) days of the date of the 7
notice provided under subparagraph 1. of this paragraph, the person: 8
a. Cures the noticed violation or violations or likely violation or 9
violations; and 10
b. Provides the Attorney General with an express written statement 11
that: 12
i. Any noticed violation or violations have been cured and 13
any noticed likely violation or violations will not occur; and 14
ii. No further violation or violations, including any likely 15
violation or violations, of this section by the person will 16
occur. 17
3. The Attorney General may bring an action under paragraph (a) of this 18
subsection against a person that: 19
a. Violates, or is likely to violate, this section following the cure 20
period provided to the person under this paragraph; or 21
b. Breaches an express written statement submitted by the person to 22
the Attorney General under subparagraph 2.b. of this paragraph. 23
(d) In any action brought under paragraph (a) of this subsection, the Attorney 24
General may: 25
1. Obtain: 26
a. A declaratory judgment that one (1) or more alleged acts or 27 UNOFFICIAL COPY 25 RS BR 1792
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practices by a person or persons violate this section; 1
b. An injunction against any person that has violated, is violating, 2
or is likely to violate this section; and 3
c. Any other appropriate orders of the court to compel compliance 4
with this section; and 5
2. Recover: 6
a. Actual damages, which shall be paid to the injured person or 7
persons; 8
b. Any of the civil penalties set forth in KRS 367.990 for a violation 9
of KRS Chapter 367 for each violation and likely violation of this 10
section that occurs after the cure period provided under 11
paragraph (c) of this subsection; 12
c. Reasonable expenses incurred in investigating and preparing the 13
case; 14
d. Court costs; 15
e. Attorney's fees; and 16
f. Any other relief ordered by the court. 17
(5) (a) Subject to paragraph (c) of this subsection, any person, including a health 18
facility or health professional, directly injured by a violation or likely 19
violation of this section may bring a private cause of action against the 20
person or persons alleged to have committed the violation or likely violation. 21
(b) An action brought under paragraph (a) of this subsection may be filed in 22
the: 23
1. Circuit Court of the county in which the injured person resides or 24
conducts business; or 25
2. Franklin Circuit Court. 26
(c) Prior to bringing an action under paragraph (a) of this subsection, an 27 UNOFFICIAL COPY 25 RS BR 1792
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injured person shall make reasonable efforts to provide to each person 1
alleged to be in violation or likely violation of this section notice: 2
1. Of the person's alleged violations and likely violations of this section; 3
and 4
2. That failure to cure any alleged violation or likely violation of this 5
section within fourteen (14) days of the date of the notice may result in 6
a civil action being filed against the person in a court of competent 7
jurisdiction. 8
(d) In any action brought under paragraph (a) of this subsection, the plaintiff 9
may: 10
1. Obtain: 11
a. A declaratory judgment that one (1) or more alleged acts or 12
practices by a person or persons violate this section; 13
b. An injunction against any person that has violated, is violating, 14
or is likely to violate this section; and 15
c. Any other appropriate orders of the court to compel compliance 16
with this section; and 17
2. Recover necessary costs, expenses, and reasonable attorney's fees. 18
(6) Each occurrence of any the following shall constitute a separate violation of, and 19
direct injury under, this section that is subject to the remedies and penalties 20
available under this section: 21
(a) A person fails to comply with any requirement of this section; 22
(b) The denial of a claim under a health benefit plan as a result of a violation 23
under paragraph (a) of this subsection; 24
(c) An insured seeks but is unable to obtain mental health condition benefits 25
under a health benefit plan as a result of a violation under paragraph (a) of 26
this subsection; and 27 UNOFFICIAL COPY 25 RS BR 1792
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(d) A health facility or health professional attempts but is unable to provide 1
mental health condition benefits under a health benefit plan as a result of a 2
violation of paragraph (a) of this subsection. 3
(7) (a) The remedies and penalties set forth in this section shall be cumulative. 4
(b) Nothing in this section shall be construed to limit or restrict the powers, 5
duties, remedies, or penalties available to the commissioner, the Attorney 6
General, the Commonwealth, or any other person under any other statutory 7
or common law. 8
(c) No action taken pursuant to this section, or order of a court to enforce an 9
action taken pursuant to this section, shall in any way relieve or absolve any 10
affected person from any other liability, penalty, or forfeiture under law. 11
(8) The Attorney General may promulgate administrative regulations in accordance 12
with KRS Chapter 13A that are necessary to effectuate, or as an aid to the 13
effectuation of, the proper enforcement of this section. 14
Section 2. KRS 205.522 is amended to read as follows: 15
(1) With respect to the administration and provision of Medicaid benefits pursuant to 16
this chapter, the Department for Medicaid Services, any managed care organization 17
contracted to provide Medicaid benefits pursuant to this chapter, and the state's 18
medical assistance program shall be subject to, and comply with, the following, as 19
applicable: 20
(a) KRS 304.17A-129; 21
(b) KRS 304.17A-145; 22
(c) KRS 304.17A-163; 23
(d) KRS 304.17A-1631; 24
(e) KRS 304.17A-167; 25
(f) KRS 304.17A-235; 26
(g) KRS 304.17A-257; 27 UNOFFICIAL COPY 25 RS BR 1792
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(h) KRS 304.17A-259; 1
(i) KRS 304.17A-263; 2
(j) KRS 304.17A-264; 3
(k) KRS 304.17A-515; 4
(l) KRS 304.17A-580; 5
(m) KRS 304.17A-600, 304.17A-603, and 304.17A-607;[ and] 6
(n) KRS 304.17A-740 to 304.17A-743; and 7
(o) Section 1 of this Act. 8
(2) A managed care organization contracted to provide Medicaid benefits pursuant to 9
this chapter shall comply with the reporting requirements of KRS 304.17A-732. 10
Section 3. If the Department for Medicaid Services or the Cabinet for Health 11
and Family Services determines that a state plan amendment, waiver, or any other form 12
of authorization or approval from any federal agency is necessary prior to implementation 13
of Section 2 of this Act for any reason, including the loss of federal funds, the department 14
or cabinet shall, within 90 days after the effective date of this section, request any 15
necessary state plan amendment, waiver, authorization, or approval, and may only delay 16
full implementation of those provisions for which a state plan amendment, waiver, 17
authorization, or approval was deemed necessary until the state plan amendment, waiver, 18
authorization, or approval is granted or approved. 19
Section 4. The Department for Medicaid Services or the Cabinet for Health and 20
Family Services shall, in accordance with KRS 205.525, provide a copy of any state plan 21
amendment, waiver application, or other request for authorization or approval submitted 22
pursuant to Section 3 of this Act to the Legislative Research Commission for referral to 23
the Interim Joint Committees on Health Services and Appropriations and Revenue and 24
shall provide an update on the status of any application or request submitted pursuant to 25
Section 3 of this Act at the request of the Legislative Research Commission or any 26
committee thereof. 27 UNOFFICIAL COPY 25 RS BR 1792
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Section 5. Whereas parity in the provision of mental health condition benefits is 1
imperative to the health and well-being of the citizens of the Commonwealth, an 2
emergency is declared to exist, and this Act takes effect upon its passage and approval by 3
the Governor or upon its otherwise becoming a law. 4