STATE OF NEW YORK ________________________________________________________________________ 6704 2023-2024 Regular Sessions IN ASSEMBLY May 5, 2023 ___________ Introduced by M. of A. GUNTHER -- read once and referred to the Commit- tee 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 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, items (i) 4 and (ii) of subparagraph (A) as amended by chapter 818 of the laws of 5 2022, are amended to read as follows: 6 (A) Every policy delivered or issued for delivery in this state that 7 provides coverage for inpatient hospital care or coverage for physician 8 services shall provide coverage for the diagnosis and treatment of 9 mental health conditions as follows: 10 (i) where the policy provides coverage for inpatient hospital care, 11 such policy shall include benefits for inpatient care in a hospital as 12 defined by subdivision ten of section 1.03 of the mental hygiene law and 13 benefits for outpatient care provided in a facility issued an operating 14 certificate by the commissioner of mental health pursuant to the 15 provisions of article thirty-one of the mental hygiene law, or in a 16 facility operated by the office of mental health, or in a crisis 17 stabilization center licensed pursuant to section 36.01 of the mental 18 hygiene law, or, for care provided in other states, to similarly 19 licensed or certified hospitals or facilities; and 20 (ii) where the policy provides coverage for physician services, such 21 policy shall include benefits for outpatient care provided by a psychia- 22 trist or psychologist licensed to practice in this state, a licensed 23 clinical social worker within the lawful scope of his or her practice, 24 who is licensed pursuant to article one hundred fifty-four of the educa- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06700-01-3
A. 6704 2 1 tion law, a mental health counselor, marriage and family therapist, 2 creative arts therapist or psychoanalyst licensed pursuant to article 3 one hundred sixty-three of the education law, a nurse practitioner 4 licensed to practice in this state, or a professional corporation or 5 university faculty practice corporation thereof, including outpatient 6 drug coverage. Nothing herein shall be construed to modify or expand the 7 scope of practice of a mental health counselor, marriage and family 8 therapist, creative arts therapist or psychoanalyst licensed pursuant to 9 article one hundred sixty-three of the education law. Further, nothing 10 herein shall be construed to create a new mandated health benefit. 11 (C) Coverage under this paragraph shall not apply financial require- 12 ments or treatment limitations to mental health benefits, including drug 13 coverage, that are more restrictive than the predominant financial 14 requirements and treatment limitations applied to substantially all 15 medical and surgical benefits covered by the policy. Coverage under this 16 paragraph, including drug coverage, shall not apply any fail-first or 17 step therapy protocol, as defined by section four thousand nine hundred 18 of this chapter. 19 (E) For purposes of this paragraph: 20 (i) "financial requirement" means deductible, copayments, coinsurance 21 and out-of-pocket expenses; 22 (ii) "predominant" means that a financial requirement or treatment 23 limitation is the most common or frequent of such type of limit or 24 requirement; 25 (iii) "treatment limitation" means limits on the frequency of treat- 26 ment, number of visits, days of coverage, or other similar limits on the 27 scope or duration of treatment and includes nonquantitative treatment 28 limitations such as: medical management standards limiting or excluding 29 benefits based on medical necessity, or based on whether the treatment 30 is experimental or investigational; formulary design for prescription 31 drugs; network tier design; standards for provider admission to partic- 32 ipate in a network, including reimbursement rates; methods for determin- 33 ing usual, customary, and reasonable charges; [fail-first or step thera- 34 py protocols;] exclusions based on failure to complete a course of 35 treatment; and restrictions based on geographic location, facility type, 36 provider specialty, and other criteria that limit the scope or duration 37 of benefits for services provided under the policy; and 38 (iv) "mental health condition" means any mental health disorder as 39 defined in the most recent edition of the diagnostic and statistical 40 manual of mental disorders or the most recent edition of another gener- 41 ally recognized independent standard of current medical practice such as 42 the international classification of diseases. 43 § 2. Subparagraphs (A), (C) and (E) of paragraph 5 of subsection (l) 44 of section 3221 of the insurance law, subparagraph (A) as amended by 45 section 13 of subpart A of part BB of chapter 57 of the laws of 2019, 46 item (i) of subparagraph (A) as amended by section 14 of part AA of 47 chapter 57 of the laws of 2021, item (ii) of subparagraph (A) as amended 48 by chapter 818 of the laws of 2022, and subparagraphs (C) and (E) as 49 added by section 14 of subpart A of part BB of chapter 57 of the laws of 50 2019, are amended to read as follows: 51 (A) Every insurer delivering a group or school blanket policy or issu- 52 ing a group or school blanket policy for delivery, in this state, which 53 provides coverage for inpatient hospital care or coverage for physician 54 services shall provide coverage for the diagnosis and treatment of 55 mental health conditions and:
A. 6704 3 1 (i) where the policy provides coverage for inpatient hospital care, 2 benefits for inpatient care in a hospital as defined by subdivision ten 3 of section 1.03 of the mental hygiene law and benefits for outpatient 4 care provided in a facility issued an operating certificate by the 5 commissioner of mental health pursuant to the provisions of article 6 thirty-one of the mental hygiene law, or in a facility operated by the 7 office of mental health or in a crisis stabilization center licensed 8 pursuant to section 36.01 of the mental hygiene law or, for care 9 provided in other states, to similarly licensed or certified hospitals 10 or facilities; and 11 (ii) where the policy provides coverage for physician services, it 12 shall include benefits for outpatient care provided by a psychiatrist or 13 psychologist licensed to practice in this state, or a mental health 14 counselor, marriage and family therapist, creative arts therapist or 15 psychoanalyst licensed pursuant to article one hundred sixty-three of 16 the education law, or a licensed clinical social worker within the 17 lawful scope of his or her practice, who is licensed pursuant to article 18 one hundred fifty-four of the education law, a nurse practitioner 19 licensed to practice in this state, or a professional corporation or 20 university faculty practice corporation thereof, including outpatient 21 drug coverage. Nothing herein shall be construed to modify or expand the 22 scope of practice of a mental health counselor, marriage and family 23 therapist, creative arts therapist or psychoanalyst licensed pursuant to 24 article one hundred sixty-three of the education law. Further, nothing 25 herein shall be construed to create a new mandated health benefit. 26 (C) Coverage under this paragraph shall not apply financial require- 27 ments or treatment limitations to mental health benefits, including drug 28 coverage, that are more restrictive than the predominant financial 29 requirements and treatment limitations applied to substantially all 30 medical and surgical benefits covered by the policy. Coverage under this 31 paragraph, including drug coverage, shall not apply any fail-first or 32 step therapy protocol, as defined by section four thousand nine hundred 33 of this chapter. 34 (E) For purposes of this paragraph: 35 (i) "financial requirement" means deductible, copayments, coinsurance 36 and out-of-pocket expenses; 37 (ii) "predominant" means that a financial requirement or treatment 38 limitation is the most common or frequent of such type of limit or 39 requirement; 40 (iii) "treatment limitation" means limits on the frequency of treat- 41 ment, number of visits, days of coverage, or other similar limits on the 42 scope or duration of treatment and includes nonquantitative treatment 43 limitations such as: medical management standards limiting or excluding 44 benefits based on medical necessity, or based on whether the treatment 45 is experimental or investigational; formulary design for prescription 46 drugs; network tier design; standards for provider admission to partic- 47 ipate in a network, including reimbursement rates; methods for determin- 48 ing usual, customary, and reasonable charges; [fail-first or step thera- 49 py protocols;] exclusions based on failure to complete a course of 50 treatment; and restrictions based on geographic location, facility type, 51 provider specialty, and other criteria that limit the scope or duration 52 of benefits for services provided under the policy; and 53 (iv) "mental health condition" means any mental health disorder as 54 defined in the most recent edition of the diagnostic and statistical 55 manual of mental disorders or the most recent edition of another gener-
A. 6704 4 1 ally recognized independent standard of current medical practice such as 2 the international classification of diseases. 3 § 3. Paragraphs 2 and 4, and subparagraph (C) of paragraph 6 of 4 subsection (g) of section 4303 of the insurance law, paragraph 2 as 5 amended by chapter 818 of the laws of 2022, and paragraph 4 and subpara- 6 graph (C) of paragraph 6 as added by section 23 of subpart A of part BB 7 of chapter 57 of the laws of 2019, are amended the read as follows: 8 (2) where the contract provides coverage for physician services such 9 contract shall provide benefits for outpatient care provided by a 10 psychiatrist or psychologist licensed to practice in this state, or a 11 mental health counselor, marriage and family therapist, creative arts 12 therapist or psychoanalyst licensed pursuant to article one hundred 13 sixty-three of the education law, or a licensed clinical social worker 14 within the lawful scope of his or her practice, who is licensed pursuant 15 to article one hundred fifty-four of the education law, a nurse practi- 16 tioner licensed to practice in this state, or professional corporation 17 or university faculty practice corporation thereof, including outpatient 18 drug coverage. Nothing herein shall be construed to modify or expand the 19 scope of practice of a mental health counselor, marriage and family 20 therapist, creative arts therapist or psychoanalyst licensed pursuant to 21 article one hundred sixty-three of the education law. Further, nothing 22 herein shall be construed to create a new mandated health benefit. 23 (4) Coverage under this subsection shall not apply financial require- 24 ments or treatment limitations to mental health benefits, including drug 25 coverage, that are more restrictive than the predominant financial 26 requirements and treatment limitations applied to substantially all 27 medical and surgical benefits covered by the contract. Coverage under 28 this paragraph, including drug coverage, shall not apply any fail-first 29 or step therapy protocol, as defined by section four thousand nine 30 hundred of this chapter. 31 (C) "treatment limitation" means limits on the frequency of treatment, 32 number of visits, days of coverage, or other similar limits on the scope 33 or duration of treatment and includes nonquantitative treatment limita- 34 tions such as: medical management standards limiting or excluding bene- 35 fits based on medical necessity, or based on whether the treatment is 36 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 thera- 40 py protocols;] exclusions based on failure to complete a course of 41 treatment; 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 contract; and 44 § 4. This act shall take effect immediately and shall apply to all 45 policies and contracts issued, renewed, modified, altered or amended on 46 or after such date.