TITLE 16

Health and Safety

Delaware Health Care Commission

CHAPTER 99. Delaware Health Care Commission

Subchapter I. Findings, Organization and Duties of Commission


§ 9902. Delaware Health Care Commission.

(a) (1) There is hereby established the Delaware Health Care Commission, hereinafter in this chapter referred to as the Commission. Said Commission shall consist of 11 members, 5 of whom shall be appointed by the Governor, 1 of whom shall be appointed by the President Pro Tempore of the State Senate and 1 of whom shall be appointed by the Speaker of the House of Representatives. Of the 5 members appointed by the Governor, at least 1 member shall be a resident of each county. The Insurance Commissioner, the Secretary of Finance, the Secretary of Health and Social Services, and the Secretary of Services for Children, Youth and Their Families or their designees shall serve as ex officio members of the Commission.

(2) The Governor shall designate 1 member of the Commission to be Chairperson who shall serve at the pleasure of the Governor. The terms of the remaining 6 appointed members shall be for 4 years except that the initial term of each may be for a lesser period. Any vacancy shall be filled by the Governor for the balance of the unexpired term. A member of the Commission shall be eligible for reappointment. No more than 3 of the Commission members appointed by the Governor shall be of the same political party.

(b) The Commission is constituted an independent public instrumentality and may call upon the Delaware Health Information Network and/or any state agency for any assistance, information or data that may be necessary to carry out the purposes for which it had been established. For administrative and budgetary purposes only, the Commission shall be placed within the Department of Health and Social Services, Office of the Secretary.

(c) The Commission is authorized to reimburse Commission members for mileage associated with Commission responsibilities.

67 Del. Laws, c. 334, §  168 Del. Laws, c. 290, §  10669 Del. Laws, c. 35, §§  1, 270 Del. Laws, c. 186, §  173 Del. Laws, c. 141, §§  1-473 Del. Laws, c. 309, §  178 Del. Laws, c. 296, §  2

§ 9903. Duties and authority of the Commission.

(a) The Commission may hire staff, contract for consulting services, conduct any technical or actuarial studies which it deems to be necessary to support its work, and publish reports as required in order to accomplish its purposes in accordance with the provisions of this chapter.

(1) The Commission shall, in coordination with the Primary Care Reform Collaborative established under § 9904A of this title, monitor the uptake and compliance of primary care providers with value-based care delivery models, including advising and approving a Delaware Primary Care Model designed to do both of the following:

a. Achieve targets for value-based care through increased participation in alternative payment models that are not paid on a fee for service or per claim basis and include quality and performance improvement requirements.

b. Reward primary care services that are designed to reduce health disparities and address social determinants of health.

(2) The Commission shall develop, and monitor compliance with, alternative payment models that promote value-based care. The Commission may do all of the following:

a. Review and incorporate the Office of Value-Based Health Care Delivery’s, established under § 334 of Title 18, analyses of primary care spending and affordability standards to achieve primary care targets without increasing costs to consumers or the total cost of care.

b. Solicit the following from a health insurer, as defined in § 4004 of Title 18, to the extent permitted under federal law, and from a hospital or acute health-care facility licensed under Chapter 10 of this title:

1. Quality and utilization reporting for providers participating in alternative payment arrangements with performance towards goals, targets, or benchmarks.

2. Demonstration of the practice transformation support for providers and evaluation of progress towards transformative milestones.

c. Adopt regulations to implement this paragraph (a)(2).

(b) As relates to the pilot health access projects, the Commission is expressly authorized to develop such programs in consultation with the appropriate public and private entities; to assign implementation to the appropriate state agency; to monitor and oversee program progress and to ensure that each pilot program is evaluated by an outside, independent evaluator after no more than 2 years of operations.

(c) The Commission shall be responsible for the administration of the Delaware Institute of Medical Education and Research (DIMER), which shall serve as an advisory board to the Commission, and the Chair of the Health Care Commission shall appoint the Chair of DIMER. The Commission shall have such other duties and authorities with respect to DIMER which are necessary to carry out the intent of the General Assembly as expressed in this chapter.

(d) The Commission shall be responsible for the administration of the Delaware Institute for Dental Education and Research (DIDER), which shall serve as an advisory board to the Commission. The Commission shall have such other duties and authorities with respect to DIDER which are necessary to carry out the intent of the General Assembly as expressed in this chapter.

(e) Other functions which the Commission may undertake include:

(1) Serve as the policy body to advise the Governor and General Assembly on strategies to promoting affordable quality health care to all Delawareans and assuring policies are in place to maintain an optimal health-care environment. Analyze all aspects of the health-care landscape, including, but not limited to, population and health outcomes, service delivery infrastructure, quality, costs, accessibility, utilization, insurance coverage and financing;

(2) Convene, as necessary, public and private stakeholders to identify, analyze and address health policy issues and build consensus around workable solutions. Serve as the coordinating entity between the public and private sectors to implement emerging health initiatives at the federal, state and local levels;

(3) Function in such a way that fosters creative thinking and problem solving across state agency lines and across the public and private sectors;

(4) Ensure that data to support the activities of the Commission are available and accessible;

(5) Monitor cost trends in order to recommend methods to reduce and control health-care costs for public programs and in conjunction with the private sector;

(6) Coordinate efforts with the Health Resources Board and any other entities the Commission identifies as essential to carry out its mission;

(7) Review and recommend changes to state health insurance laws and regulations (in conjunction with the Insurance Commissioner) to promote efficiency, equity and affordability in health insurance premiums;

(8) Coordinate and collaborate with the Delaware Health Information Network [DHIN] to assure that the use of health information technology and health information exchange results in cost effective, quality health care for all Delawareans. Consult with DHIN Board of Directors and staff on implementation of health information technology in Delaware and call upon the DHIN to assist in conducting pilot programs, providing technical support, capabilities and expertise, and/or conducting research necessary to achieve the Commission’s mission;

(9) Oversee efforts to assure that Delaware has an adequate supply and distribution of health-care professionals to provide quality care to all Delawareans in consultation with DIMER, DIDER and other institutions, bodies or agencies as necessary;

(10) Monitor access to health-care programs and make recommendations for changes where necessary; and

(11) Conduct other activities it considers necessary to carry out the intent of the General Assembly as expressed in this chapter.

(f) The Commission must collaborate with the Primary Care Reform Collaborative to develop annual recommendations that will strengthen the primary care system in Delaware. The scope of the recommendations must include all of the following:

(1) Payment reform.

(2) Value-based care.

(3) Workforce and recruitment.

(4) Directing resources to support and expand primary care access.

(5) Increasing integrated care, including for women’s and behavioral health.

(6) Evaluation of system-wide investments into primary care, using claims data obtained from the Delaware Health Care Claims Database.

(g) The Commission shall establish the Delaware Health Insurance Individual Market Stabilization Reinsurance Program & Fund and the Commission shall have all of the following responsibilities.

(1) To provide reinsurance to carriers that offer individual health benefit plans in the State.

(2) Said reinsurance must meet the requirements of a waiver approved under § 1332 of the Affordable Care Act [42 U.S.C. § 18052].

(3) The reinsurance fund must operate under the supervision and control of the Commission, and is funded pursuant to § 8703 of Title 18.

(h) For purposes of funding and administering the reinsurance program outlined in subsection (g) of this section, the fund shall be made up of all of the following:

(1) Any pass-through funds received from the federal government under a waiver approved under § 1332 of the Affordable Care Act [42 U.S.C. § 18052].

(2) Any funds designated by the federal government to provide reinsurance to carriers that offer individual health benefit plans in the State.

(3) Any funds designated by the State pursuant to § 8703 of Title 18 to provide reinsurance to carriers that offer individual health benefit plans in the State.

(i) To carry out its responsibilities in administering the program outlined in subsection (g) of this section and funded pursuant to subsection (h) of this section, the Commission shall promulgate regulations for purposes of all of the following:

(1) Establishing procedures for the handling and accounting of program assets and moneys, as well as for an annual fiscal reporting to the Commission, Insurance Commissioner and General Assembly.

(2) Annually establishing procedures and parameters for reinsuring risks, including all of the following:

a. An attachment point.

b. A coinsurance rate.

c. A coinsurance cap.

(3) Establishing procedures and standards for carriers to submit claims to be reinsured under the program.

(4) Establishing procedures for selecting an administering contractor and setting forth the power and duties of the administering contractor.

(5) Establishing procedures for quarterly reporting or annual reporting, or both, of data under the Affordable Care Act’s § 1332 [42 U.S.C. § 18052] waiver to demonstrate that the waiver remains in compliance with the scope of coverage, affordability, comprehensiveness and deficit requirements.

(6) Establishing procedures for providing each year the actual second-lowest cost Silver Plan premium under the Affordable Care Act’s § 1332 [42 U.S.C. § 18052] waiver and an estimate of the premium as it would have been without the waiver.

(7) Providing for any additional matters necessary for the implementation and administration of the reinsurance program.

(8) Submitting an annual report to the Governor and General Assembly, in consultation with the Department of Health and Social Services and the Department of Insurance.

(j) The Commission shall be responsible for the administration of a Health Care Provider Loan Repayment Program (HCPLRP). The HCPLRP must be administered consistent with all of the following guidelines:

(1) Subject to the appropriation of sufficient funds, the Commission may award education loan repayment grants to qualifying clinicians of up to $50,000 per year for a maximum of 4 years.

(2) Eligible sites may apply to the Commission on behalf of their affiliated, qualifying clinicians for education loan repayment grants from the HCPLRP. Sites eligible to apply for education loan repayment grants on behalf of their qualifying clinicians include all of the following sites located in underserved areas or areas of need:

a. Hospital primary care practices.

b. Private practices.

c. Federally-qualified health centers.

d. Community outpatient facilities.

e. Community mental health facilities.

f. Free medical clinics.

(3) Health care provider loan repayment grants may only be awarded by the Commission to sites that accept Medicare and Medicaid participants, and may not include concierge practices. To be eligible for a health care provider loan repayment grant, private practice sites must participate in the Voluntary Initiative Program administered by the Department of Health and Social Services’ Health Care Connection. Health care provider loan repayment grants to hospital sites must be subject to a dollar-for-dollar match by the applicant hospital.

(4) The award of health care provider loan repayment grants must be limited to the recruitment and retention of new primary care providers in ambulatory and outpatient settings. For purposes of this paragraph, a new primary care provider means any of the following providers who have completed graduate education within 6 months of the application for a health care provider loan repayment grant being submitted:

a. Physicians practicing family medicine (including osteopathic general practice), internal medicine, pediatrics, obstetrics/gynecology, geriatrics, and psychiatry.

b. Nurse practitioners, certified nurse midwives, clinical nurse specialists, and physicians assistants practicing adult medicine, family medicine, pediatrics, psychiatry/mental health, geriatrics, and women’s health.

(5) The Commission may grant priority consideration to applications submitted on behalf of primary care clinicians that are DIMER-participating students or participants in Delaware-based residency programs and may annually spend up to $150,000 on marketing and infrastructure to attract clinicians to apply to the HCPLRP.

(6) The Commission shall issue an annual report detailing the number of clinicians applying for and awarded health care provider loan repayment grants, including information regarding the number of applicants and grant recipients by practice area and site location.

(k) The Commission shall, in coordination with the Delaware Economic and Financial Advisory Council Health Care Spending Benchmark Subcommittee, be responsible for establishing and monitoring the state health-care spending and quality benchmarks as follows:

(1) As used in this subsection

a. “DEFAC” means the Delaware Economic and Financial Advisory Council.

b. “Insurer” means a private health insurance company that offers any of the following: commercial insurance administration for self-insured employers, Medicare managed care products, Medicaid and CHIP, or Medicaid managed care organization (MCO) products.

c. “Market” means the highest level of categorization of the health insurance market and shall include individual, small group, large group, self-insured, student, and Medicare Advantage markets.

d. “Payer” means a payer, a nongovernment health plan and includes any organization acting as payer that is a subsidiary, affiliate or business owned or controlled by a payer that, during a given calendar year, pays health-care providers for health-care services.

e. “Public programs” means payers that are not insurers and includes Medicare, Medicaid and CHIP, the Veterans Health Administration (VHA), and other similar programs or entities.

f. “Quality benchmark” means the annual performance target for a priority Delaware population-health or quality-of-care concern.

g. “Spending benchmark” means the target annual per capita growth rate for Delaware’s statewide total health-care spending, expressed as the percentage growth from the prior year’s per capita spending.

h. “Subcommittee” means the DEFAC Health Care Spending Benchmark Subcommittee.

(2) The Subcommittee shall be responsible for setting the spending benchmark and shall advise DEFAC, the Governor, the Department of Insurance, State Employee Benefits Committee, the Delaware Division of Medicaid and Medical Assistance, and other relevant state agencies on the spending benchmark.

(3) Subject to paragraph (k)(4) of this section, the spending benchmark shall be the per capita potential gross state product (PGSP) growth rate which shall be calculated as follows:

a. The sum of the following: the expected growth in national labor force productivity; plus, the expected growth in Delaware’s civilian labor force; plus, the expected national inflation;

b. Minus Delaware’s expected population growth.

(4) The methodology used to determine the spending benchmark in paragraph (k)(3) of this section are subject to change if the Subcommittee determines that there is a more effective or precise methodology than paragraph (k)(3) of this section.

(5) The Commission shall annually publish the Delaware Health Care Spending and Quality Benchmarks Implementation Manual on the Commission’s website which shall contain the current definitions and metrics utilized in the spending and quality benchmark calculations.

(6) In calculating any statewide, regional or local health-care cost calculation target or benchmark, the total cost of care calculation, report, study or formulation may utilize data obtained from the Health Care Claims Database maintained by the Delaware Health Information Network.

(7) The Subcommittee shall do all of the following:

a. Review annually all components of the potential gross state product or any other approved methodology, and recommend to DEFAC for its approval whether the forecasted growth rate has changed in such a material way that it warrants a change in the spending benchmark, and if so, how and why the spending benchmark should be modified.

b. Review periodically the methodology of the spending benchmark for possible updates or modifications to the methodology for the performance year starting January 1, 2024, and each year thereafter, and make recommendations to DEFAC by no later than May 31 of each calendar year thereafter, as to whether, and, if so, how and why the spending benchmark methodology and/or the growth rate should change.

c. In the event a recommendation is made that the spending benchmark methodology and/or the growth rate should change, provide the public and interested stakeholders a reasonable opportunity to provide feedback on the proposed changes, and consider any recommendations provided as to the proposed changes.

d. Advise the Governor and DEFAC on current and projected trends in health-care and the health care industry, particularly as they affect the expenditures and revenues of the State, its citizens, and its major industries.

(8) No later than June 30 of each year, DEFAC shall report to the Governor and the Commission regarding any changes to the spending benchmark as approved by DEFAC.

(9) The Commission shall establish and publish the annual spending benchmark on the Commission’s website.

(10) Recognizing the importance of coordination between the Subcommittee and the Commission in the creation of the spending and quality benchmarks, and as part of the Commission’s ongoing efforts to serve as the policy body to advise the Governor and the General Assembly on strategies to promote affordable quality health care to all Delawareans, the Commission shall be responsible for doing all of the following:

a. Setting quality benchmarks for the State and advising the Governor, the Division of Public Health and other relevant state agencies on the quality benchmarks.

b. For each new, 3-year cycle of the quality benchmarks, reviewing the methodology used to establish these benchmarks to determine whether changes should be made to the values used to establish the quality benchmarks to reflect changes in new population health or health-care priority opportunities for improvement, and/or whether the quality benchmarks’ values should be changed to reflect improved health-care performance in the State. If changes are to be made to the values used to establish the quality benchmarks and/or the quality benchmarks, the Commission shall finalize these changes prior to the start of each new, 3-year quality benchmark cycle. For Calendar Year 2025 - 2028 of the quality benchmark cycle, the Commission should finalize any changes on or before December 31, 2024, and then every 3 years thereafter.

c. In the event the Commission determines that the values used to establish the quality benchmarks and/or the quality benchmarks should be changed, the Commission shall make such changes only after providing the public and interested stakeholders a reasonable opportunity to provide feedback on the proposed changes, and considering any recommendations provided as to the proposed changes.

d. Engaging health-care providers and community partners in a regular and ongoing forum, with the State and with each other, to develop strategies to reduce variation in cost and quality and to help the State perform well relative to the spending and quality benchmarks, including reliance on data and, to the extent practicable, evidence-based solutions to address identified opportunities through the variation analysis.

e. Producing timely publications and/or reports with validated data to ensure transparency regarding health-care spending and quality within the State.

(11) Subject to paragraphs (k)(11)d. and (k)(11)e. of this section, payers, insurers, and public programs shall report annually to the Commission by no later than October 1 of each calendar year on performance relative to the spending and quality benchmarks.

a. Spending benchmark data may consist of the prior 2 calendar years.

b. Quality benchmark data shall consist of the previous calendar year.

c. The Commission may use other sources to track variation in costs and quality of high-volume, high-cost and high-value episodes of care (identifying the causes of variation, including mix of services used, unit price variation and provision of low-value care) at both of the following:

1. State health insurance market and individual consumer levels.

2. Medical group and accountable care organization (ACO) levels for entities of a sufficient size, using clinical risk adjustment methodologies.

d. Other payers may be required to report annually to the Commission on performance relative to the spending and quality benchmarks subject to the approval of DEFAC, the Subcommittee, the Governor, and other relevant state agencies.

e. The above annual reporting deadline of October 1 of each calendar year may be modified by the Executive Director of the Commission provided that payers, insurers, and public programs are given written notice of any such modification at least 30 days prior to the annual reporting deadline.

67 Del. Laws, c. 334, §  170 Del. Laws, c. 186, §  170 Del. Laws, c. 516, §  273 Del. Laws, c. 4, §  278 Del. Laws, c. 296, §  381 Del. Laws, c. 392, § 182 Del. Laws, c. 61, § 183 Del. Laws, c. 121, § 183 Del. Laws, c. 237, § 183 Del. Laws, c. 412, § 1

§ 9904. Reporting requirements.

(a) On or before January 15, 1991, the Commission shall report to the Governor and the General Assembly on the status of the recommendations contained in the May 31, 1990, Task Force Report. On or before March 15, 1991, the Commission shall submit to the Governor and the General Assembly its recommendations for legislative action on insurance reform. On or before May 15, 1991, the Commission shall report to the Governor and the General Assembly on the status of specific initiatives in Medicaid, education, outreach and case management, and the pilot model projects.

(b) On or before January 15, 1991, and on or before every January 15 thereafter, the Commission shall report to the Governor and the General Assembly on the status of all of the Task Force recommendations. The comprehensive report shall identify any segments of the population which remain without access to health care and any further recommendations deemed necessary to meet the Commission’s charge.

67 Del. Laws, c. 334, §  1

§ 9904A. Primary Care Reform Collaborative.

(a) The Commission shall convene a Primary Care Reform Collaborative (“Collaborative”) to assist with the development of recommendations to strengthen the primary care system in this State. The Collaborative may collect and accept advice and input from stakeholders, including the Delaware health-care and patient community.

(b) The Collaborative is comprised of the following members, or a designee appointed by the member serving by virtue of position:

(1) The Commission Chairperson. The Commission Chairperson is chair of the Collaborative.

(2) The Chair of the Senate Health & Social Services Committee.

(3) The Chair of the House Health & Human Development Committee.

(4) One member, appointed by the Governor from a list of names provided by the Medical Society of Delaware.

(5) One member, appointed by the Governor from a list of names provided by the Delaware Nurses Association.

(6) One member, appointed by the Governor from a list of names provided by the Delaware Healthcare Association.

(7) Two members representing insurance carriers, appointed by the Governor.

(8) The Secretary, Department of Health and Social Services.

(9) The Director, Division of Medicaid and Medical Assistance.

(10) The Insurance Commissioner, Insurance Department.

(11) The Chair, State Employee Benefits Committee.

(12) One member representing a Federally Qualified Health Center, appointed by the Governor.

(c) The Commission may also require the submission of written reports by any health insurer, as defined in § 4004 of Title 18, to the extent permitted under federal law, and any hospital or acute health-care facility licensed under Chapter 10 of this title, regarding all of the following matters:

(1) The hospital’s, acute health-care facility’s, or health insurer’s progress in adopting and implementing value-based payment models during the fiscal year immediately preceding the annual reporting deadline and the overall progress of the reporting entity on having at least 60% of Delawareans attributed to meaningful value-based payment models by 2025.

(2) The hospital’s, acute health-care facility’s, or health insurer’s efforts to support primary care access and primary care practitioners in the State, including financial, operational, and other support, in conjunction with the adoption of meaningful value-based payment models.

(d) (1) A quorum of the Collaborative is a majority of its members.

(2) Official action by the Collaborative requires the approval of a quorum of the Collaborative.

(3) The Collaborative may adopt rules necessary for its operation.

81 Del. Laws, c. 392, § 282 Del. Laws, c. 189, § 183 Del. Laws, c. 237, § 2