NY State Senate Bill 2023-S2282

Senate Bill S2282

2023-2024 Legislative Session

Prohibits the application of fail-first or step therapy protocols to coverage for the diagnosis and treatment of mental health conditions

download bill text pdf

Current Bill Status - In Senate Committee Insurance Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2024	referred to insurance
Jan 19, 2023	referred to insurance

2023-S2282 (ACTIVE) - Details

See Assembly Version of this Bill:: A6704
Current Committee:: Senate Insurance
Law Section:: Insurance Law
Laws Affected:: Amd §§3216, 3221 & 4303, Ins L
Versions Introduced in Other Legislative Sessions:: 2019-2020: A11145
2021-2022: S5909, A3276

2023-S2282 (ACTIVE) - Summary

Prohibits the application of fail-first or step therapy protocols to coverage for the diagnosis and treatment of mental health conditions.

2023-S2282 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S2282

SPONSOR: CLEARE
 
TITLE OF BILL:

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 diag-
nosis and treatment of mental health conditions

 
PURPOSE:

This bill would prohibit the application of fail-first or step therapy
protocols to coverage for the diagnosis and treatment of mental health
conditions.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section one would amend subsection (i) of section 3216 of the insurance
law to prohibit the application of any fail-first or step therapy proto-
col to mental health benefits, including drug coverage, provided by
individual accident and health insurance policies.

Section two would amend subsection (1) of section 3221 of the insurance
law to prohibit the application of any fail-first or step therapy proto-
col to mental health benefits, including drug coverage, provided by
group or blanket accident and health insurance policies.

Section three would amend subsection (g) of section 4303 of the insur-
ance law to prohibit the application of any fail-first or step therapy
protocol to mental health benefits, including drug coverage, provided by
non-profit medical and dental indemnity policies.

Section four provides that the bill would take effect immediately and
apply to any policies established or renewed on or after such date.

 
JUSTIFICATION:

"Fail-first" or "step therapy" protocols imposed by insurers obligate
patients to try a less costly treatment than what might be prescribed by
their provider, and "fail first" with that before the insurer will cover
the more costly treatment. In practice, this often requires patients to
take medications that they have tried previously without success, to
wait months for approval to switch to another option after failing with
a given drug, or to suffer adverse effects from a drug they had not
wanted to take. There is only mixed evidence in published studies on the
impact of step therapy policies, and some have found that, contrary to
their intent, such policies actually increase total utilization costs
over the long run because of increased inpatient admissions and emergen-
cy department visits. Such policies are particularly dangerous in the
mental health space, where they can be associated with a higher risk of
discontinuity in medication use, and increased likelihood of homeless-
ness and incarceration. Such policies likely contribute to the current
mental health crisis, which has been marked by an increase in the
reporting of mental health issues, even prior to COVID19.

And the COVID-19 pandemic is making the existing mental health crisis
worse. A Kaiser Family Foundation survey from August 2020 showed the
average share of adults reporting depression or anxiety rose to 40% in
July 2020. Further, a study in the Journal of the American Medical Asso-
ciation (JAMA), showed 15% of U.S. adults reported symptoms of "serious
psychological distress," in April 2020, compared to just 4% who reported
similar symptoms in April 2018. Symptoms of psychological distress were
highest among young adults, people with low incomes and people of color.

As the COVID-19 pandemic moves to the next stage, the health care system
may face a sort of "fourth wave" of behavioral health problems. Experts
are warning mental health issues and substance use disorders are becom-
ing more challenging for people who already have these conditions, and
may lead to new mental health and substance use issues in the general
population.

Recognizing the importance of access to care in response to the Covid-19
pandemic, 40 state Medicaid programs allowed early refills for medica-
tions and 30 waived or extended prior authorization requirements,
including New York State. Many health plans also reduced barriers to
care, either voluntarily or at the direction of state policymakers. It
is imperative that these measures continue, as the mental health impacts
of COVID-19 will linger long after the end of the pandemic.

 
LEGISLATIVE HISTORY:

2021: New bill

 
FISCAL IMPLICATIONS:

None to the state.

 
EFFECTIVE DATE:
The bill would take effect immediately and apply to any policies

2023-S2282 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2282
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             January 19, 2023
                                ___________
 
 Introduced  by  Sen.  CLEARE -- 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, items (i)
 and (ii) of subparagraph (A) as amended by chapter 818 of  the  laws  of
 2022, 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,
 such  policy  shall include 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 in a crisis
 stabilization center licensed pursuant to section 36.01  of  the  mental
 hygiene  law,  or,  for  care  provided  in  other  states, to similarly
 licensed or certified hospitals or facilities; and
   (ii) where the policy provides coverage for physician  services,  such
 policy shall include benefits for outpatient care provided by a psychia-
 trist  or  psychologist  licensed  to practice in this state, a licensed
 clinical social worker within the lawful scope of his or  her  practice,
 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

 S. 2282                             2
 
 tion  law,  a  mental  health  counselor, marriage and family therapist,
 creative arts therapist or psychoanalyst licensed  pursuant  to  article
 one  hundred  sixty-three  of  the  education  law, a nurse practitioner
 licensed  to  practice  in  this state, or a professional corporation or
 university faculty practice corporation  thereof,  INCLUDING  OUTPATIENT
 DRUG COVERAGE. Nothing herein shall be construed to modify or expand the
 scope  of  practice  of  a  mental health counselor, marriage and family
 therapist, creative arts therapist or psychoanalyst licensed pursuant to
 article one hundred sixty-three of the education law.  Further,  nothing
 herein shall be construed to create a new mandated health benefit.
   (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,
 item  (i)  of  subparagraph  (A)  as amended by section 14 of part AA of
 chapter 57 of the laws of 2021, item (ii) of subparagraph (A) as amended
 by chapter 818 of the laws of 2022, 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:
 S. 2282                             3
 
   (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 in a crisis stabilization center licensed
 pursuant to section 36.01  of  the  mental  hygiene  law  or,  for  care
 provided  in  other states, to similarly 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, or a mental health
 counselor, marriage and family therapist,  creative  arts  therapist  or
 psychoanalyst  licensed  pursuant  to article one hundred sixty-three of
 the education law, or a  licensed  clinical  social  worker  within  the
 lawful scope of his or her practice, who is licensed pursuant to article
 one  hundred  fifty-four  of  the  education  law,  a nurse practitioner
 licensed to practice in this state, or  a  professional  corporation  or
 university  faculty  practice  corporation thereof, INCLUDING OUTPATIENT
 DRUG COVERAGE. Nothing herein shall be construed to modify or expand the
 scope of practice of a mental  health  counselor,  marriage  and  family
 therapist, creative arts therapist or psychoanalyst licensed pursuant to
 article  one  hundred sixty-three of the education law. Further, nothing
 herein shall be construed to create a new mandated health benefit.
   (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-
 S. 2282                             4
 
 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
 amended by chapter 818 of the laws of 2022, and paragraph 4 and subpara-
 graph  (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  such
 contract  shall  provide  benefits  for  outpatient  care  provided by a
 psychiatrist or psychologist licensed to practice in this  state,  or  a
 mental  health  counselor,  marriage and family therapist, creative arts
 therapist or psychoanalyst licensed  pursuant  to  article  one  hundred
 sixty-three  of  the education law, or a licensed clinical social worker
 within the lawful scope of his or her practice, who is licensed pursuant
 to article one hundred fifty-four of the education law, a nurse  practi-
 tioner  licensed  to practice in this state, or professional corporation
 or university faculty practice corporation thereof, INCLUDING OUTPATIENT
 DRUG COVERAGE. Nothing herein shall be construed to modify or expand the
 scope of practice of a mental  health  counselor,  marriage  and  family
 therapist, creative arts therapist or psychoanalyst licensed pursuant to
 article  one  hundred sixty-three of the education law. Further, nothing
 herein shall be construed to create a new mandated health benefit.
   (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.
   (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.

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