S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5909
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                              March 22, 2021
                                ___________
 
 Introduced  by Sen. KAMINSKY -- 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 mental health conditions

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Subparagraphs  (A),  (C)  and  (E)  of  paragraph  35  of
 subsection (i) of section 3216 of the insurance law, as added by section
 8 of subpart A of part BB of chapter 57 of the laws of 2019, are amended
 to read as follows:
   (A)  Every  policy delivered or issued for delivery in this state that
 provides coverage for inpatient hospital care or coverage for  physician
 services  shall  provide  coverage  for  the  diagnosis and treatment of
 mental health conditions as follows:
   (i) where the policy provides coverage for  inpatient  hospital  care,
 benefits  for inpatient care in a hospital as defined by subdivision ten
 of section 1.03 of the mental hygiene law and  benefits  for  outpatient
 care  provided  in  a  facility  issued  an operating certificate by the
 commissioner of mental health pursuant  to  the  provisions  of  article
 thirty-one  of  the mental hygiene law, or in a facility operated by the
 office of mental health, or, for care provided in other states, to simi-
 larly licensed or certified hospitals or facilities; and
   (ii) where the policy provides coverage for physician services,  bene-
 fits  for  outpatient  care  provided  by a psychiatrist or psychologist
 licensed to practice in this state, a licensed  clinical  social  worker
 who  meets  the  requirements  of  subparagraph (D) of paragraph four of
 subsection (1) of section three thousand two hundred twenty-one of  this
 article,  a  nurse practitioner licensed to practice in this state, or a
 professional corporation  or  university  faculty  practice  corporation
 thereof, INCLUDING OUTPATIENT DRUG COVERAGE.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD02946-01-1

 S. 5909                             2
 
   (C)  Coverage  under this paragraph shall not apply financial require-
 ments or treatment limitations to mental health benefits, INCLUDING DRUG
 COVERAGE, that are  more  restrictive  than  the  predominant  financial
 requirements  and  treatment  limitations  applied  to substantially all
 medical and surgical benefits covered by the policy. COVERAGE UNDER THIS
 PARAGRAPH,  INCLUDING  DRUG  COVERAGE, SHALL NOT APPLY ANY FAIL-FIRST OR
 STEP THERAPY PROTOCOL, AS DEFINED BY SECTION FOUR THOUSAND NINE  HUNDRED
 OF THIS CHAPTER.
   (E) For purposes of this paragraph:
   (i)  "financial requirement" means deductible, copayments, coinsurance
 and out-of-pocket expenses;
   (ii) "predominant" means that a  financial  requirement  or  treatment
 limitation  is  the  most  common  or  frequent of such type of limit or
 requirement;
   (iii) "treatment limitation" means limits on the frequency  of  treat-
 ment, number of visits, days of coverage, or other similar limits on the
 scope  or  duration  of treatment and includes nonquantitative treatment
 limitations such as: medical management standards limiting or  excluding
 benefits  based  on medical necessity, or based on whether the treatment
 is experimental or investigational; formulary  design  for  prescription
 drugs;  network tier design; standards for provider admission to partic-
 ipate in a network, including reimbursement rates; methods for determin-
 ing usual, customary, and reasonable charges; [fail-first or step thera-
 py protocols;] exclusions based on  failure  to  complete  a  course  of
 treatment; and restrictions based on geographic location, facility type,
 provider  specialty, and other criteria that limit the scope or duration
 of benefits for services provided under the policy; and
   (iv) "mental health condition" means any  mental  health  disorder  as
 defined  in  the  most  recent edition of the diagnostic and statistical
 manual of mental disorders or the most recent edition of another  gener-
 ally recognized independent standard of current medical practice such as
 the international classification of diseases.
   §  2.  Subparagraphs (A), (C) and (E) of paragraph 5 of subsection (l)
 of section 3221 of the insurance law, subparagraph  (A)  as  amended  by
 section 13 of subpart A of part BB of chapter 57 of the laws of 2019 and
 subparagraphs (C) and (E) as added by section 14 of subpart A of part BB
 of chapter 57 of the laws of 2019, are amended to read as follows:
   (A) Every insurer delivering a group or school blanket policy or issu-
 ing  a group or school blanket policy for delivery, in this state, which
 provides coverage for inpatient hospital care or coverage for  physician
 services  shall  provide  coverage  for  the  diagnosis and treatment of
 mental health conditions and:
   (i) where the policy provides coverage for  inpatient  hospital  care,
 benefits  for inpatient care in a hospital as defined by subdivision ten
 of section 1.03 of the mental hygiene law and  benefits  for  outpatient
 care  provided  in  a  facility  issued  an operating certificate by the
 commissioner of mental health pursuant  to  the  provisions  of  article
 thirty-one  of  the mental hygiene law, or in a facility operated by the
 office of mental health or, for care provided in other states, to  simi-
 larly licensed or certified hospitals or facilities; and
   (ii)  where  the  policy  provides coverage for physician services, it
 shall include benefits for outpatient care provided by a psychiatrist or
 psychologist licensed to practice in this  state,  a  licensed  clinical
 social  worker  who  meets the requirements of subparagraph (D) of para-
 graph four of this subsection, a nurse practitioner licensed to practice

 S. 5909                             3

 in this state, or a professional corporation or university faculty prac-
 tice corporation thereof, INCLUDING OUTPATIENT DRUG COVERAGE.
   (C)  Coverage  under this paragraph shall not apply financial require-
 ments or treatment limitations to mental health benefits, INCLUDING DRUG
 COVERAGE, that are  more  restrictive  than  the  predominant  financial
 requirements  and  treatment  limitations  applied  to substantially all
 medical and surgical benefits covered by the policy. COVERAGE UNDER THIS
 PARAGRAPH, INCLUDING DRUG COVERAGE, SHALL NOT APPLY  ANY  FAIL-FIRST  OR
 STEP  THERAPY PROTOCOL, AS DEFINED BY SECTION FOUR THOUSAND NINE HUNDRED
 OF THIS CHAPTER.
   (E) For purposes of this paragraph:
   (i) "financial requirement" means deductible, copayments,  coinsurance
 and out-of-pocket expenses;
   (ii)  "predominant"  means  that  a financial requirement or treatment
 limitation is the most common or frequent  of  such  type  of  limit  or
 requirement;
   (iii)  "treatment  limitation" means limits on the frequency of treat-
 ment, number of visits, days of coverage, or other similar limits on the
 scope or duration of treatment and  includes  nonquantitative  treatment
 limitations  such as: medical management standards limiting or excluding
 benefits based on medical necessity, or based on whether  the  treatment
 is  experimental  or  investigational; formulary design for prescription
 drugs; network tier design; standards for provider admission to  partic-
 ipate in a network, including reimbursement rates; methods for determin-
 ing usual, customary, and reasonable charges; [fail-first or step thera-
 py  protocols;]  exclusions  based  on  failure  to complete a course of
 treatment; and restrictions based on geographic location, facility type,
 provider specialty, and other criteria that limit the scope or  duration
 of benefits for services provided under the policy; and
   (iv)  "mental  health  condition"  means any mental health disorder as
 defined in the most recent edition of  the  diagnostic  and  statistical
 manual  of mental disorders or the most recent edition of another gener-
 ally recognized independent standard of current medical practice such as
 the international classification of diseases.
   § 3. Paragraphs 2 and 4,  and  subparagraph  (C)  of  paragraph  6  of
 subsection  (g)  of  section  4303  of the insurance law, paragraph 2 as
 added by section 22 of subpart A of part BB of chapter 57 of the laws of
 2019, and paragraph 4 and subparagraph (C) of paragraph 6  as  added  by
 section  23  of  subpart A of part BB of chapter 57 of the laws of 2019,
 are amended the read as follows:
   (2) where the contract provides coverage for physician services  bene-
 fits  for  outpatient  care  provided  by a psychiatrist or psychologist
 licensed to practice in this state, a licensed  clinical  social  worker
 who  meets  the  requirements of subsection (n) of this section, a nurse
 practitioner licensed to practice on this state, or professional  corpo-
 ration  or  university  faculty  practice corporation thereof, INCLUDING
 OUTPATIENT DRUG COVERAGE.
   (4) Coverage under this subsection shall not apply financial  require-
 ments or treatment limitations to mental health benefits, INCLUDING DRUG
 COVERAGE,  that  are  more  restrictive  than  the predominant financial
 requirements and treatment  limitations  applied  to  substantially  all
 medical  and  surgical benefits covered by the contract.  COVERAGE UNDER
 THIS PARAGRAPH, INCLUDING DRUG COVERAGE, SHALL NOT APPLY ANY  FAIL-FIRST
 OR  STEP  THERAPY  PROTOCOL,  AS  DEFINED  BY SECTION FOUR THOUSAND NINE
 HUNDRED OF THIS CHAPTER.

 S. 5909                             4
 
   (C) "treatment limitation" means limits on the frequency of treatment,
 number of visits, days of coverage, or other similar limits on the scope
 or duration of treatment and includes nonquantitative treatment  limita-
 tions  such as: medical management standards limiting or excluding bene-
 fits  based  on  medical necessity, or based on whether the treatment is
 experimental  or  investigational;  formulary  design  for  prescription
 drugs;  network tier design; standards for provider admission to partic-
 ipate in a network, including reimbursement rates; methods for determin-
 ing usual, customary, and reasonable charges; [fail-first or step thera-
 py protocols;] exclusions based on  failure  to  complete  a  course  of
 treatment; and restrictions based on geographic location, facility type,
 provider  specialty, and other criteria that limit the scope or duration
 of benefits for services provided under the contract; and
   § 4. This act shall take effect immediately and  shall  apply  to  all
 policies  and contracts issued, renewed, modified, altered or amended on
 or after such date.