Section 8K. (a) The commissioner of insurance shall implement and enforce applicable provisions of the federal Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, as amended, any federal guidance or regulations relevant to the act, including 45 C.F.R. part 146.136, 45 C.F.R. part 147.136, 45 C.F.R. part 147.160 and 45 C.F.R. part 156.115(a) (3), and applicable state mental health parity laws, including, but not limited to, section 47B of chapter 175, section 8A of chapter 176A, section 4A of chapter 176B and sections 4, 4B and 4M of chapter 176G, in regard to any carrier licensed under said chapters 175, 176A, 176B or 176G or any carrier offering a student health plan issued under section 18 of chapter 15A by:

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  (i) evaluating and resolving all consumer complaints alleging a carrier’s non-compliance with state or federal laws related to mental health and substance use disorder parity as described in subsection (f);

  (ii) performing behavioral health parity compliance market conduct examinations of each carrier not less than once every 4 years, or more frequently if noncompliance is suspected, with a focus on: (A) nonquantitative treatment limitations under the federal Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, as amended, and applicable state mental health and substance use disorder parity laws, including, but not limited to, prior authorization, concurrent review, retrospective review, step-therapy, network admission standards, reimbursement rates, network adequacy and geographic restrictions; (B) denials of authorization, payment and coverage; and (C) any other criteria determined by the division of insurance, including factors identified through consumer or provider complaints; provided, however, that: (1) a market conduct examination of a carrier subject to said chapter 175, 176A, 176B or 176G shall follow the procedural requirements in subsections 10, 11 and 15 of section 4 of said chapter 175 regarding notice and rebuttal of examination findings, subsequent hearings and conflicts of interest; (2) the commissioner shall publicize the fees for a market conduct examination under section 3B of chapter 7 and said subsection 11 of said section 4 of said chapter 175; and (3) nothing contained in clause (ii) or in said section 4 of said chapter 175, section 7 of said chapter 176A, section 9 of said chapter 176B and section 10 of said chapter 176G shall limit the commissioner’s authority to use and, if appropriate, publish any final or preliminary examination report, any examiner or company work papers or other documents or any other information discovered or developed during the course of any examination in the furtherance of any legal or regulatory action that the commissioner may, in their sole discretion, deem appropriate;

  (iii) requiring that carriers that provide mental health or substance use disorder benefits directly or through a behavioral health manager as defined in section 1 of chapter 176O or any other entity that manages or administers such benefits for the carrier comply with the annual reporting requirements under section 8M;

  (iv) updating applicable regulations as necessary to effectuate any provisions of the federal Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, as amended that relate to insurance; and

  (v) assessing a fee upon any carrier for the costs and expenses incurred in any market conduct examination authorized by law, consistent with the costs associated with the use of division personnel and examiners, the costs of retaining qualified contract examiners necessary to perform an examination, electronic data processing costs, supervision and preparation of an examination report and lodging and travel expenses; provided, however, that the commissioner shall maintain active management and oversight of examination costs and fees to ensure that the examination costs and fees comply with the National Association of Insurance Commissioners market conduct examiners handbook unless the commissioner demonstrates that the fees prescribed in the handbook are inadequate under the circumstances of the examination; and provided further, that the commissioner or the commissioner’s examiners shall not receive or accept any additional emolument on account of any examination.

[ First paragraph of subsection (b) effective until March 29, 2023. For text effective March 29, 2023, see below.]

  (b) The commissioner may impose a penalty against a carrier that provides mental health or substance use disorder benefits, directly or through a behavioral health manager as defined in section 1 of chapter 176O or any other entity that manages or administers such benefits for the carrier, for any violation by the carrier or the entity that manages or administers mental health and substance use disorder benefits for the carrier of state laws related to mental health and substance use disorder parity or the mental health parity provisions of the federal Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, 42 U.S.C. § 18031(j), as amended, and federal guidance or regulations issued under the act.

[ First paragraph of subsection (b) as amended by 2023, 2, Sec. 14 effective March 29, 2023. For text effective until March 29, 2023, see above.]

  (b) The commissioner may impose a penalty against a carrier that provides mental health or substance use disorder benefits, directly or through a behavioral health manager as defined in section 1 of chapter 176O or any other entity that manages or administers such benefits for the carrier, for any violation by the carrier or the entity that manages or administers mental health and substance use disorder benefits for the carrier of state laws related to mental health and substance use disorder parity or the mental health parity provisions of the federal Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, 42 U.S.C. §§ 300gg–26, as amended, and federal guidance or regulations issued under the act.

  The amount of any penalty imposed shall be $100 for each day in the noncompliance period per product line with respect to each participant or beneficiary to whom such violation relates; provided, however, that the maximum annual penalty under this subsection shall be $1,000,000; provided further, that for purposes of this subsection, the term "noncompliance period” shall mean the period beginning on the date a violation first occurs and ending on the date the violation is corrected.

  A penalty shall not be imposed for a violation if the commissioner determines that the violation was due to reasonable cause and not to willful neglect or if the violation is corrected not more than 30 days after the start of the noncompliance period.

[ Introductory paragraph of subsection (c) effective until March 29, 2023. For text effective March 29, 2023, see below.]

  (c) If a violation of state laws related to mental health and substance use disorder parity or the mental health parity provisions of the federal Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, 42 U.S.C. § 18031(j), as amended, and federal guidance or regulations issued under the act, was likely to have caused denial of access to behavioral health services, the commissioner shall require carriers to provide remedies for any failure to meet the requirements of state laws related to mental health and substance use disorder parity or the mental health parity provisions of the federal Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, 42 U.S.C. § 18031(j), as amended, and federal guidance or regulations issued under the act, which may include, but shall not be limited to:

[ Introductory paragraph of subsection (c) as amended by 2023, 2, Sec. 14 effective March 29, 2023. For text effective until March 29, 2023, see above.]

  (c) If a violation of state laws related to mental health and substance use disorder parity or the mental health parity provisions of the federal Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, 42 U.S.C. §§ 300gg–26, as amended, and federal guidance or regulations issued under the act, was likely to have caused denial of access to behavioral health services, the commissioner shall require carriers to provide remedies for any failure to meet the requirements of state laws related to mental health and substance use disorder parity or the mental health parity provisions of the federal Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, 42 U.S.C. §§ 300gg–26, as amended, and federal guidance or regulations issued under the act, which may include, but shall not be limited to:

  (i) requiring the carrier to change the benefit standard or practice, including updating plan language, with notice to plan members;

  (ii) providing training to staff on any changes to benefits and practices;

  (iii) informing plan members of changes;

  (iv) requiring the carrier to reprocess and pay all inappropriately denied claims to affected plan members, notify members of their right to file claims for services previously denied and for which members paid out-of-pocket and reimburse for services eligible for coverage under corrected standards; or

  (v) requiring the carrier to submit to ongoing monitoring to verify compliance.

  (d) Any proprietary information submitted to the commissioner by a carrier as a result of the requirements of this section shall not be a public record under clause Twenty-sixth of section 7 of chapter 4 or chapter 66; provided, however, that the commissioner may produce reports summarizing any findings.

  (e) The commissioner shall consult with the office of patient protection in connection with any behavioral health parity compliance market conduct examination conducted and completed under clause (ii) of subsection (a).

  (f) The commissioner shall evaluate and resolve a consumer complaint alleging a carrier’s non-compliance with a state or federal law related to mental health and substance use disorder parity, including any matters referred to the commissioner by the office of patient protection under subsection (g) of section 14 of chapter 176O. A consumer complaint may be submitted orally or in writing; provided, however, that an oral complaint shall be followed by a written submission to the commissioner that shall include, but not be limited to, the complainant’s name and address, the nature of the complaint and the complainant’s signature authorizing the release of any information regarding the complaint to help the commissioner with the review of the complaint; and provided further, that the commissioner shall create a process for a consumer to request the appointment of an authorized representative to act on the consumer’s behalf.

  The commissioner shall review consumer complaints under this subsection using the legal standards pertaining to quantitative treatment limitations and nonquantitative treatment limitations under applicable state and federal mental health and substance use disorder parity laws, regulations and guidance, including, but not limited to, 45 C.F.R. part 146.136 and 29 C.F.R. part 2590.712. When reviewing the complaint, the commissioner shall consider: (i) any related right to a treatment or service under any related state or federal law or regulation; (ii) written documents submitted by the complainant; (iii) medical records and medical opinions by the complainant’s treating provider that requested or provided a disputed service, which shall be obtained by the complainant’s carrier or by the commissioner if the carrier fails to do so; (iv) the relevant results of any behavioral health parity compliance market conduct examination conducted and completed under clause (ii) of subsection (a); (v) any relevant information included in a carrier’s annual reporting requirements under section 8M; (vi) additional information from the involved parties or outside sources that the commissioner deems necessary or relevant; and (vii) information obtained from any informal meeting held by the commissioner with the parties. The commissioner shall send final written disposition of the complaint and the reasons for the commissioner’s decision to the complainant and the carrier not more than 90 days after the receipt of the written complaint. If the commissioner determines that a violation of a state or federal mental health and substance use disorder parity law occurred, the commissioner shall exercise its enforcement authority under subsections (b) and (c).

  The commissioner shall respond as soon as practicable to all questions or concerns from consumers about carrier compliance with state or federal laws related to mental health and substance use disorder parity that are referred to the commissioner from the office of patient protection under subsection (g) of section 14 of chapter 176O.

  (g) Nothing in this section shall limit the authority of the attorney general to enforce any state or federal law, regulation or guidance described in this section.

  (h) Nothing in this section shall prevent the commissioner from publishing any illustrative utilization review criteria, medical necessity standard, clinical guideline or other policy, procedure, criteria or standard, regardless of its origin, as an example of the type of policy, procedure, criteria or standard that contributes to a violation of state or federal law parity requirements, including any document that would normally be subject to disclosure to plan members or their providers under section 16 of chapter 6D, section 16 of chapter 176O or the federal Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, as amended.