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.
