STATE OF NEW YORK ________________________________________________________________________
6688--A
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 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee
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. Item (ii) of subparagraph (A) and subparagraphs (C) and (E) 2 of paragraph 35 of subsection (i) of section 3216 of the insurance law, 3 item (ii) of subparagraph (A) as amended by chapter 62 of the laws of 4 2023 and subparagraphs (C) and (E) as added by section 8 of subpart A of 5 part BB of chapter 57 of the laws of 2019, are amended to read as 6 follows: 7 (ii) where the policy provides coverage for physician services, such 8 policy shall include benefits for outpatient care provided by a psychia- 9 trist or psychologist licensed to practice in this state, a licensed 10 clinical social worker within the lawful scope of his or her practice, 11 who is licensed pursuant to article one hundred fifty-four of the educa- 12 tion law, a mental health counselor, marriage and family therapist, or 13 psychoanalyst licensed pursuant to article one hundred sixty-three of 14 the education law, a nurse practitioner licensed to practice in this 15 state, or a professional corporation or university faculty practice 16 corporation thereof, including outpatient drug coverage. Nothing herein 17 shall be construed to modify or expand the scope of practice of a mental 18 health counselor, marriage and family therapist, or psychoanalyst 19 licensed pursuant to article one hundred sixty-three of the education 20 law. Further, nothing herein shall be construed to create a new mandated 21 health benefit.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11141-04-3
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1 (C) Coverage under this paragraph shall not apply financial require- 2 ments or treatment limitations to mental health benefits, including 3 outpatient drug coverage, that are more restrictive than the predominant 4 financial requirements and treatment limitations applied to substantial- 5 ly all medical and surgical benefits covered by the policy. Coverage 6 under this paragraph, including drug coverage, shall not apply any of 7 the following to a drug or drugs prescribed for a serious mental health 8 condition: 9 (i) a fail-first or step therapy protocol, as defined by section four 10 thousand nine hundred of this chapter; or 11 (ii) a prior authorization requirement, as established pursuant to 12 subsection (h) of section four thousand nine hundred three of this chap- 13 ter. 14 (E) For purposes of this paragraph: 15 (i) "financial requirement" means deductible, copayments, coinsurance 16 and out-of-pocket expenses; 17 (ii) "predominant" means that a financial requirement or treatment 18 limitation is the most common or frequent of such type of limit or 19 requirement; 20 (iii) "treatment limitation" means limits on the frequency of treat- 21 ment, number of visits, days of coverage, or other similar limits on the 22 scope or duration of treatment and includes nonquantitative treatment 23 limitations such as: medical management standards limiting or excluding 24 benefits based on medical necessity, or based on whether the treatment 25 is experimental or investigational; formulary design for prescription 26 drugs; network tier design; standards for provider admission to partic- 27 ipate in a network, including reimbursement rates; methods for determin- 28 ing usual, customary, and reasonable charges; fail-first or step therapy 29 protocols; exclusions based on failure to complete a course of treat- 30 ment; and restrictions based on geographic location, facility type, 31 provider specialty, and other criteria that limit the scope or duration 32 of benefits for services provided under the policy; [and] 33 (iv) "mental health condition" means any mental health disorder as 34 defined in the most recent edition of the diagnostic and statistical 35 manual of mental disorders or the most recent edition of another gener- 36 ally recognized independent standard of current medical practice such as 37 the international classification of diseases[.]; and 38 (v) "serious mental health condition" means the following mental 39 health disorders as defined in the most recent edition of the diagnostic 40 and statistical manual of mental disorders: 41 (I) bipolar disorders (hypomanic, manic, depressive, and mixed); 42 (II) depression in childhood and adolescence; 43 (III) major depressive disorders (single episode or recurrent); 44 (IV) obsessive-compulsive disorders; 45 (V) paranoid and other psychotic disorders; 46 (VI) schizoaffective disorders (bipolar or depressive); and 47 (VII) schizophrenia. 48 § 1-a. Items (vi) and (vii) of subparagraph (E) of paragraph 35 of 49 subsection (i) of section 3216 of the insurance law, as added by section 50 2 of subpart A of part II of chapter 57 of the laws of 2023, are amend 51 and a new item (viii) is added to read as follows: 52 (vi) "critical time intervention services" means services rendered by 53 a provider licensed under article thirty-one of the mental hygiene law 54 that provides evidence-based, therapeutic interventions that include 55 intensive outreach, engagement, and care coordination services that are 56 provided to an insured before the insured is discharged from inpatient
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1 care in a hospital as defined by subdivision ten of section 1.03 of the 2 mental hygiene law or the emergency department of a hospital licensed 3 pursuant to article twenty-eight of the public health law and continue 4 after discharge until the insured is stabilized; [and] 5 (vii) "residential facility" means crisis residence facilities and 6 community residences for eating disorder integrated treatment programs 7 licensed pursuant to article thirty-one of the mental hygiene law[.]; 8 and 9 (viii) "serious mental health condition" means the following mental 10 health disorders as defined in the most recent edition of the diagnostic 11 and statistical manual of mental disorders: 12 (I) bipolar disorders (hypomanic, manic, depressive, and mixed); 13 (II) depression in childhood and adolescence; 14 (III) major depressive disorders (single episode or recurrent); 15 (IV) obsessive-compulsive disorders; 16 (V) paranoid and other psychotic disorders; 17 (VI) schizoaffective disorders (bipolar or depressive); and 18 (VII) schizophrenia. 19 § 2. Item (ii) of subparagraph (A) and subparagraphs (C) and (E) of 20 paragraph 5 of subsection (l) of section 3221 of the insurance law, item 21 (ii) of subparagraph (A) as amended by chapter 62 of the laws of 2023 22 and subparagraphs (C) and (E) as added by section 14 of subpart A of 23 part BB of chapter 57 of the laws of 2019, are amended to read as 24 follows: 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 § 2-a. Items (vi) and (vii) of subparagraph (E) of paragraph 5 of 33 subsection (l) of section 3221 of the insurance law, as added by section 34 6 of subpart A of part II of chapter 57 of the laws of 2023, are amended 35 and a new item (viii) is added to read as follows: 36 (vi) "critical time intervention services" means services rendered by 37 a provider licensed under article thirty-one of the mental hygiene law 38 that provides evidence-based, therapeutic interventions that include 39 intensive outreach, engagement, and care coordination services that are 40 provided to an insured before the insured is discharged from inpatient 41 care in a hospital as defined by subdivision ten of section 1.03 of the 42 mental hygiene law or the emergency department of a hospital licensed 43 pursuant to article twenty-eight of the public health law and continue 44 after discharge until the insured is stabilized; [and] 45 (vii) "residential facility" means crisis residence facilities and 46 community residences for eating disorder integrated treatment programs 47 licensed pursuant to article thirty-one of the mental hygiene law[.]; 48 and 49 (viii) "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 § 3. Paragraphs 2, 4, and 6 of subsection (g) of section 4303 of the 4 insurance law, paragraph 2 as amended by chapter 62 of the laws of 2023, 5 and paragraphs 4 and 6 as added by section 23 of subpart A of part BB of 6 chapter 57 of the laws of 2019, are amended to read as follows: 7 (2) where the contract provides coverage for physician services such 8 contract shall provide benefits for outpatient care provided by a 9 psychiatrist or psychologist licensed to practice in this state, or a 10 mental health counselor, marriage and family therapist, or psychoanalyst 11 licensed pursuant to article one hundred sixty-three of the education 12 law, or a licensed clinical social worker within the lawful scope of his 13 or her practice, who is licensed pursuant to article one hundred fifty- 14 four of the education law, a nurse practitioner licensed to practice in 15 this state, or professional corporation or university faculty practice 16 corporation thereof, including outpatient drug coverage. Nothing herein 17 shall be construed to modify or expand the scope of practice of a mental 18 health counselor, marriage and family therapist, or psychoanalyst 19 licensed pursuant to article one hundred sixty-three of the education 20 law. Further, nothing herein shall be construed to create a new mandated 21 health benefit. 22 (4) Coverage under this subsection shall not apply financial require- 23 ments or treatment limitations to mental health benefits, including 24 outpatient drug coverage, that are more restrictive than the predominant 25 financial requirements and treatment limitations applied to substantial- 26 ly all medical and surgical benefits covered by the contract. Coverage 27 under this paragraph, including drug coverage, shall not apply any of 28 the following to a drug or drugs prescribed for a serious mental health 29 condition: 30 (i) a fail-first or step therapy protocol, as defined by section four 31 thousand nine hundred of this chapter; or 32 (ii) a prior authorization requirement, as established pursuant to 33 subsection (h) of section four thousand nine hundred three of this chap- 34 ter. 35 (6) For purposes of this subsection: 36 (A) "financial requirement" means deductible, copayments, coinsurance 37 and out-of-pocket expenses; 38 (B) "predominant" means that a financial requirement or treatment 39 limitation is the most common or frequent of such type of limit or 40 requirement; 41 (C) "treatment limitation" means limits on the frequency of treatment, 42 number of visits, days of coverage, or other similar limits on the scope 43 or duration of treatment and includes nonquantitative treatment limita- 44 tions such as: medical management standards limiting or excluding bene- 45 fits based on medical necessity, or based on whether the treatment is 46 experimental or investigational; formulary design for prescription 47 drugs; network tier design; standards for provider admission to partic- 48 ipate in a network, including reimbursement rates; methods for determin- 49 ing usual, customary, and reasonable charges; fail-first or step therapy 50 protocols; exclusions based on failure to complete a course of treat- 51 ment; and restrictions based on geographic location, facility type, 52 provider specialty, and other criteria that limit the scope or duration 53 of benefits for services provided under the contract; [and] 54 (D) "mental health condition" means any mental health disorder as 55 defined in the most recent edition of the diagnostic and statistical 56 manual of mental disorders or the most recent edition of another gener-
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1 ally recognized independent standard of current medical practice such as 2 the international classification of diseases[.]; and 3 (E) "serious mental health condition" means the following mental 4 health disorders as defined in the most recent edition of the diagnostic 5 and statistical manual of mental disorders: 6 (i) bipolar disorders (hypomanic, manic, depressive, and mixed); 7 (ii) depression in childhood and adolescence; 8 (iii) major depressive disorders (single episode or recurrent); 9 (iv) obsessive-compulsive disorders; 10 (v) paranoid and other psychotic disorders; 11 (vi) schizoaffective disorders (bipolar or depressive); and 12 (vii) schizophrenia. 13 § 3-a. Subparagraphs (F) and (G) of paragraph 6 of subsection (g) of 14 section 4303 of the insurance law, as added by section 10 of subpart A 15 of part II of chapter 57 of the laws of 2023, are amended and a new 16 subparagraph (H) is added to read as follows: 17 (F) "critical time intervention services" means services rendered by a 18 provider licensed under article thirty-one of the mental hygiene law 19 that provides evidence-based, therapeutic interventions that include 20 intensive outreach, engagement, and care coordination services that are 21 provided to an insured before the insured is discharged from inpatient 22 care in a hospital as defined by subdivision ten of section 1.03 of the 23 mental hygiene law or the emergency department of a hospital licensed 24 pursuant to article twenty-eight of the public health law and continue 25 after discharge until the insured is stabilized; [and] 26 (G) "residential facility" means crisis residence facilities and 27 community residences for eating disorder integrated treatment programs 28 licensed pursuant to article thirty-one of the mental hygiene law[.]; 29 and 30 (H) "serious mental health condition" means the following mental 31 health disorders as defined in the most recent edition of the diagnostic 32 and statistical manual of mental disorders: 33 (i) bipolar disorders (hypomanic, manic, depressive, and mixed); 34 (ii) depression in childhood and adolescence; 35 (iii) major depressive disorders (single episode or recurrent); 36 (iv) obsessive-compulsive disorders; 37 (v) paranoid and other psychotic disorders; 38 (vi) schizoaffective disorders (bipolar or depressive); and 39 (vii) schizophrenia. 40 § 4. This act shall take effect on the first of January next succeed- 41 ing the date on which it shall have become a law and shall apply to all 42 policies and contracts issued, renewed, modified, altered or amended on 43 or after such date; provided however, that if subpart A of part II of 44 chapter 57 of the laws of 2023 shall not have taken effect on or before 45 such date then sections one-a, two-a and three-a of this act shall take 46 effect on the same date and in the same manner as such subpart of such 47 part of such chapter of the laws of 2023 takes effect.