SECTION 21.2439. Nonquantitative Treatment Limitations Generally

(a) NQTLs in general. NQTLs generally are treatment limitations on the scope or duration of benefits for treatment. An issuer is prohibited from imposing NQTLs on MH/SUD benefits in any classification unless, under the terms of the plan or coverage as written and in operation, any processes, strategies, evidentiary standards, or other factors used in applying the NQTL to MH/SUD benefits in a classification are comparable to, and are applied no more stringently than, those used in applying the limitation with respect to medical/surgical benefits in the same classification.

(b) Numerical application of NQTLs. While NQTLs are generally defined as treatment limitations that are not expressed numerically, the application of an NQTL in a numerical way does not modify its nonquantitative character. For example, standards for provider admission to participate in a network are NQTLs because such standards are treatment limitations that typically are not expressed numerically. But these standards sometimes rely on numerical standards such as numerical reimbursement rates. In this case, the numerical expression of reimbursement rates does not modify the nonquantitative character of the provider admission standards. Therefore, reimbursement rates to which a participating provider must agree are to be evaluated in accordance with the rules for NQTLs.

(c) Examples. The following is an illustrative, non-exhaustive list of NQTLs:

(1) medical management standards limiting or excluding benefits based on medical necessity or medical appropriateness, or based on whether the treatment is experimental or investigative;

(2) preauthorization or ongoing authorization requirements;

(3) concurrent review standards;

(4) formulary design for prescription drugs;

(5) for plans with multiple network tiers (such as preferred providers and participating providers), network tier design;

(6) standards for provider admission to participate in a network, including reimbursement rates;

(7) plan or issuer methods for determining usual, customary, and reasonable charges;

(8) refusal to pay for higher-cost therapies until it can be shown that a lower-cost therapy is not effective (also known as "fail-first" policies or "step therapy" protocols);

(9) exclusions of specific treatments for certain conditions;

(10) restrictions on applicable provider billing codes;

(11) standards for providing access to out-of-network providers;

(12) exclusions based on failure to complete a course of treatment; and

(13) restrictions based on geographic location, facility type, provider specialty, and other criteria that limit the scope or duration of benefits provided under the plan or coverage.

Source Note: The provisions of this §21.2439 adopted to be effective September 7, 2021, 46 TexReg 5571