STATE OF NEW YORK ________________________________________________________________________
6688
2023-2024 Regular Sessions
IN SENATE
May 5, 2023 ___________
Introduced by Sen. BRESLIN -- read twice and ordered printed, and when printed to be committed to the Committee on Insurance
AN ACT to amend the insurance law, in relation to prohibiting the appli- cation of fail-first or step therapy protocols to coverage for the diagnosis and treatment of serious mental health conditions
The People of the State of New York, represented in Senate and Assem- bly, do enact as follows:
1 Section 1. Subparagraphs (A), (C) and (E) of paragraph 35 of 2 subsection (i) of section 3216 of the insurance law, as added by section 3 8 of subpart A of part BB of chapter 57 of the laws of 2019, item (i) of 4 subparagraph (A) as amended by chapter 818 of the laws of 2022, and item 5 (ii) of subparagraph (A) as amended by chapter 62 of the laws of 2023, 6 are amended to read as follows: 7 (A) Every policy delivered or issued for delivery in this state that 8 provides coverage for inpatient hospital care or coverage for physician 9 services shall provide coverage for the diagnosis and treatment of 10 mental health conditions as follows: 11 (i) where the policy provides coverage for inpatient hospital care, 12 such policy shall include benefits for inpatient care in a hospital as 13 defined by subdivision ten of section 1.03 of the mental hygiene law and 14 benefits for outpatient care provided in a facility issued an operating 15 certificate by the commissioner of mental health pursuant to the 16 provisions of article thirty-one of the mental hygiene law, or in a 17 facility operated by the office of mental health, or in a crisis 18 stabilization center licensed pursuant to section 36.01 of the mental 19 hygiene law, or, for care provided in other states, to similarly 20 licensed or certified hospitals or facilities; and 21 (ii) where the policy provides coverage for physician services, such 22 policy shall include benefits for outpatient care provided by a psychia- 23 trist or psychologist licensed to practice in this state, a licensed 24 clinical social worker within the lawful scope of his or her practice,
EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11141-01-3
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1 who is licensed pursuant to article one hundred fifty-four of the educa- 2 tion law, a mental health counselor, marriage and family therapist, or 3 psychoanalyst licensed pursuant to article one hundred sixty-three of 4 the education law, a nurse practitioner licensed to practice in this 5 state, or a professional corporation or university faculty practice 6 corporation thereof, including outpatient drug coverage. Nothing herein 7 shall be construed to modify or expand the scope of practice of a mental 8 health counselor, marriage and family therapist, or psychoanalyst 9 licensed pursuant to article one hundred sixty-three of the education 10 law. Further, nothing herein shall be construed to create a new mandated 11 health benefit. 12 (C) Coverage under this paragraph shall not apply financial require- 13 ments or treatment limitations to mental health benefits, including 14 outpatient drug coverage, that are more restrictive than the predominant 15 financial requirements and treatment limitations applied to substantial- 16 ly all medical and surgical benefits covered by the policy. Coverage 17 under this paragraph, including drug coverage, shall not apply any of 18 the following to a drug or drugs prescribed for a serious mental health 19 condition: 20 (i) a fail-first or step therapy protocol, as defined by section four 21 thousand nine hundred of this chapter; or 22 (ii) a prior authorization requirement, as established pursuant to 23 subsection (h) of section four thousand nine hundred three of this chap- 24 ter. 25 (E) For purposes of this paragraph: 26 (i) "financial requirement" means deductible, copayments, coinsurance 27 and out-of-pocket expenses; 28 (ii) "predominant" means that a financial requirement or treatment 29 limitation is the most common or frequent of such type of limit or 30 requirement; 31 (iii) "treatment limitation" means limits on the frequency of treat- 32 ment, number of visits, days of coverage, or other similar limits on the 33 scope or duration of treatment and includes nonquantitative treatment 34 limitations such as: medical management standards limiting or excluding 35 benefits based on medical necessity, or based on whether the treatment 36 is experimental or investigational; formulary design for prescription 37 drugs; network tier design; standards for provider admission to partic- 38 ipate in a network, including reimbursement rates; methods for determin- 39 ing usual, customary, and reasonable charges; fail-first or step therapy 40 protocols; exclusions based on failure to complete a course of treat- 41 ment; and restrictions based on geographic location, facility type, 42 provider specialty, and other criteria that limit the scope or duration 43 of benefits for services provided under the policy; [and] 44 (iv) "mental health condition" means any mental health disorder as 45 defined in the most recent edition of the diagnostic and statistical 46 manual of mental disorders or the most recent edition of another gener- 47 ally recognized independent standard of current medical practice such as 48 the international classification of diseases[.]; and 49 (v) "serious mental health condition" means the following mental 50 health disorders as defined in the most recent edition of the diagnostic 51 and statistical manual of mental disorders: 52 (I) bipolar disorders (hypomanic, manic, depressive, and mixed); 53 (II) depression in childhood and adolescence; 54 (III) major depressive disorders (single episode or recurrent); 55 (IV) obsessive-compulsive disorders; 56 (V) paranoid and other psychotic disorders;
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1 (VI) schizoaffective disorders (bipolar or depressive); and 2 (VII) schizophrenia. 3 § 2. Subparagraphs (A), (C) and (E) of paragraph 5 of subsection (l) 4 of section 3221 of the insurance law, subparagraph (A) as amended by 5 section 13 and subparagraphs (C) and (E) as added by section 14 of 6 subpart A of part BB of chapter 57 of the laws of 2019, item (i) of 7 subparagraph (A) as amended by section 14 of part AA of chapter 57 of 8 the laws of 2021, and item (ii) of subparagraph (A) as amended by chap- 9 ter 62 of the laws of 2023, are amended to read as follows: 10 (A) Every insurer delivering a group or school blanket policy or issu- 11 ing a group or school blanket policy for delivery, in this state, which 12 provides coverage for inpatient hospital care or coverage for physician 13 services shall provide coverage for the diagnosis and treatment of 14 mental health conditions and: 15 (i) where the policy provides coverage for inpatient hospital care, 16 benefits for inpatient care in a hospital as defined by subdivision ten 17 of section 1.03 of the mental hygiene law and benefits for outpatient 18 care provided in a facility issued an operating certificate by the 19 commissioner of mental health pursuant to the provisions of article 20 thirty-one of the mental hygiene law, or in a facility operated by the 21 office of mental health or in a crisis stabilization center licensed 22 pursuant to section 36.01 of the mental hygiene law or, for care 23 provided in other states, to similarly licensed or certified hospitals 24 or facilities; and 25 (ii) where the policy provides coverage for physician services, it 26 shall include benefits for outpatient care provided by a psychiatrist or 27 psychologist licensed to practice in this state, or a mental health 28 counselor, marriage and family therapist, or psychoanalyst licensed 29 pursuant to article one hundred sixty-three of the education law, or a 30 licensed clinical social worker within the lawful scope of his or her 31 practice, who is licensed pursuant to article one hundred fifty-four of 32 the education law, a nurse practitioner licensed to practice in this 33 state, or a professional corporation or university faculty practice 34 corporation thereof, including outpatient drug coverage. Nothing herein 35 shall be construed to modify or expand the scope of practice of a mental 36 health counselor, marriage and family therapist, or psychoanalyst 37 licensed pursuant to article one hundred sixty-three of the education 38 law. Further, nothing herein shall be construed to create a new mandated 39 health benefit. 40 (C) Coverage under this paragraph shall not apply financial require- 41 ments or treatment limitations to mental health benefits, including 42 outpatient drug coverage, that are more restrictive than the predominant 43 financial requirements and treatment limitations applied to substantial- 44 ly all medical and surgical benefits covered by the policy. Coverage 45 under this paragraph, including drug coverage, shall not apply any of 46 the following to a drug or drugs prescribed for a serious mental health 47 condition: 48 (i) a fail-first or step therapy protocol, as defined by section four 49 thousand nine hundred of this chapter; or 50 (ii) a prior authorization requirement, as established pursuant to 51 subsection (h) of section four thousand nine hundred three of this chap- 52 ter. 53 (E) For purposes of this paragraph: 54 (i) "financial requirement" means deductible, copayments, coinsurance 55 and out-of-pocket expenses;
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1 (ii) "predominant" means that a financial requirement or treatment 2 limitation is the most common or frequent of such type of limit or 3 requirement; 4 (iii) "treatment limitation" means limits on the frequency of treat- 5 ment, number of visits, days of coverage, or other similar limits on the 6 scope or duration of treatment and includes nonquantitative treatment 7 limitations such as: medical management standards limiting or excluding 8 benefits based on medical necessity, or based on whether the treatment 9 is experimental or investigational; formulary design for prescription 10 drugs; network tier design; standards for provider admission to partic- 11 ipate in a network, including reimbursement rates; methods for determin- 12 ing usual, customary, and reasonable charges; fail-first or step therapy 13 protocols; exclusions based on failure to complete a course of treat- 14 ment; and restrictions based on geographic location, facility type, 15 provider specialty, and other criteria that limit the scope or duration 16 of benefits for services provided under the policy; [and] 17 (iv) "mental health condition" means any mental health disorder as 18 defined in the most recent edition of the diagnostic and statistical 19 manual of mental disorders or the most recent edition of another gener- 20 ally recognized independent standard of current medical practice such as 21 the international classification of diseases[.]; and 22 (v) "serious mental health condition" means the following mental 23 health disorders as defined in the most recent edition of the diagnostic 24 and statistical manual of mental disorders: 25 (I) bipolar disorders (hypomanic, manic, depressive, and mixed); 26 (II) depression in childhood and adolescence; 27 (III) major depressive disorders (single episode or recurrent); 28 (IV) obsessive-compulsive disorders; 29 (V) paranoid and other psychotic disorders; 30 (VI) schizoaffective disorders (bipolar or depressive); and 31 (VII) schizophrenia. 32 § 3. Paragraphs 2, 4, and 6 of subsection (g) of section 4303 of the 33 insurance law, paragraph 2 as amended by chapter 62 of the laws of 2023, 34 and paragraphs 4 and 6 as added by section 23 of subpart A of part BB of 35 chapter 57 of the laws of 2019, are amended to read as follows: 36 (2) where the contract provides coverage for physician services such 37 contract shall provide benefits for outpatient care provided by a 38 psychiatrist or psychologist licensed to practice in this state, or a 39 mental health counselor, marriage and family therapist, or psychoanalyst 40 licensed pursuant to article one hundred sixty-three of the education 41 law, or a licensed clinical social worker within the lawful scope of his 42 or her practice, who is licensed pursuant to article one hundred fifty- 43 four of the education law, a nurse practitioner licensed to practice in 44 this state, or professional corporation or university faculty practice 45 corporation thereof, including outpatient drug coverage. Nothing herein 46 shall be construed to modify or expand the scope of practice of a mental 47 health counselor, marriage and family therapist, or psychoanalyst 48 licensed pursuant to article one hundred sixty-three of the education 49 law. Further, nothing herein shall be construed to create a new mandated 50 health benefit. 51 (4) Coverage under this subsection shall not apply financial require- 52 ments or treatment limitations to mental health benefits, including 53 outpatient drug coverage, that are more restrictive than the predominant 54 financial requirements and treatment limitations applied to substantial- 55 ly all medical and surgical benefits covered by the contract. Coverage 56 under this paragraph, including drug coverage, shall not apply any of
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1 the following to a drug or drugs prescribed for a serious mental health 2 condition: 3 (i) a fail-first or step therapy protocol, as defined by section four 4 thousand nine hundred of this chapter; or 5 (ii) a prior authorization requirement, as established pursuant to 6 subsection (h) of section four thousand nine hundred three of this chap- 7 ter. 8 (6) For purposes of this subsection: 9 (A) "financial requirement" means deductible, copayments, coinsurance 10 and out-of-pocket expenses; 11 (B) "predominant" means that a financial requirement or treatment 12 limitation is the most common or frequent of such type of limit or 13 requirement; 14 (C) "treatment limitation" means limits on the frequency of treatment, 15 number of visits, days of coverage, or other similar limits on the scope 16 or duration of treatment and includes nonquantitative treatment limita- 17 tions such as: medical management standards limiting or excluding bene- 18 fits based on medical necessity, or based on whether the treatment is 19 experimental or investigational; formulary design for prescription 20 drugs; network tier design; standards for provider admission to partic- 21 ipate in a network, including reimbursement rates; methods for determin- 22 ing usual, customary, and reasonable charges; fail-first or step therapy 23 protocols; exclusions based on failure to complete a course of treat- 24 ment; and restrictions based on geographic location, facility type, 25 provider specialty, and other criteria that limit the scope or duration 26 of benefits for services provided under the contract; [and] 27 (D) "mental health condition" means any mental health disorder as 28 defined in the most recent edition of the diagnostic and statistical 29 manual of mental disorders or the most recent edition of another gener- 30 ally recognized independent standard of current medical practice such as 31 the international classification of diseases[.]; and 32 (E) "serious mental health condition" means the following mental 33 health disorders as defined in the most recent edition of the diagnostic 34 and statistical manual of mental disorders: 35 (i) bipolar disorders (hypomanic, manic, depressive, and mixed); 36 (ii) depression in childhood and adolescence; 37 (iii) major depressive disorders (single episode or recurrent); 38 (iv) obsessive-compulsive disorders; 39 (v) paranoid and other psychotic disorders; 40 (vi) schizoaffective disorders (bipolar or depressive); and 41 (vii) schizophrenia. 42 § 4. This act shall take effect on the first of January next succeed- 43 ing the date on which it shall have become a law and shall apply to all 44 policies and contracts issued, renewed, modified, altered or amended on 45 or after such date.