12 2 STA T .38 8 6PUBLIC LA W 11 0– 3 4 3 —O CT. 3 , 2008 ‘ ‘ (5)OUT-OF - NE T W O RKP RO VID ER S.—Inthecas e of a pl an o r co v era g e that prov id es b oth m edical and s u rgical benefits and mental health or substance use disorder benefits , if the plan or coverage provides coverage for medical or surgical bene- fits provided b y out-of-net w or k providers, the plan or coverage shall provide coverage for mental health or substance use dis- order benefits provided by out-of-network providers in a manner that is consistent with the re q uirements of this section. ’ ’
( 2 ) in subsection (b), by amending paragraph (2) to read as follows
‘‘(2) in the case of a group health plan (or health insurance coverage offered in connection with such a plan) that provides mental health or substance use disorder benefits, as affecting the terms and conditions of the plan or coverage relating to such benefits under the plan or coverage, e x cept as provided in subsection (a).’’; ( 3 ) in subsection (c)— ( A ) in paragraph ( 1 ), by inserting before the period the following: ‘‘(as defined in section 2 79 1(e)( 4 ), except that for purposes of this paragraph such term shall include employers with 1 employee in the case of an employer residing in a S tate that permits small groups to include a single individual)’’; and ( B ) by striking paragraph (2) and inserting the fol- lowing: ‘‘(2) C OST E X E M PTION.— ‘‘(A) IN G ENER AL .— W ith respect to a group health plan (or health insurance coverage offered in connection with such a plan), if the application of this section to such plan (or coverage) results in an increase for the plan year involved of the actual total costs of coverage with respect to medical and surgical benefits and mental health and substance use disorder benefits under the plan (as deter- mined and certified under subparagraph (C)) by an amount that exceeds the applicable percentage described in subparagraph (B) of the actual total plan costs, the provi- sions of this section shall not apply to such plan (or cov- erage) during the following plan year, and such exemption shall apply to the plan (or coverage) for 1 plan year. An employer may elect to continue to apply mental health and substance use disorder parity pursuant to this section with respect to the group health plan (or coverage) involved regardless of any increase in total costs. ‘‘(B) APPLI C A B LE PERCENTAGE.—With respect to a plan (or coverage), the applicable percentage described in this subparagraph shall be— ‘‘(i) 2 percent in the case of the first plan year in which this section is applied; and ‘‘(ii) 1 percent in the case of each subsequent plan year. ‘‘(C) D ETERMINATIONS B Y ACTUARIES.—Determinations as to increases in actual costs under a plan (or coverage) for purposes of this section shall be made and certified by a qualified and licensed actuary who is a member in good standing of the American Academy of Actuaries. All such determinations shall be in a written report prepared Reports.
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