2022 Legislative Session Recap

The 2022 Legislative Session concluded on Saturday, June 4. Of the 1,007 bills approved by both the Senate and Assembly, only 203 have been acted on by Governor Hochul.  The remaining approximately 800 bills will be sent to the Governor for action prior to the end of the year. The following bills are relating to health insurance:

 

  • 372 (Rosenthal L)/S.5690 (Harckham) – Prohibits Copayments for Opioid Treatment Program.

This bill prohibits any policy that provides coverage of an opioid treatment program – defined as “a program or practitioner engaged in opioid treatment of individuals with an opioid agonist treatment medication” – from imposing a copay for such treatment.

If signed by the Governor, this bill will apply to policies and contracts that are issued, renewed or modified on or after the January 1st following enactment.

 

  • 3202C (McDonald)/S.5663A (Kennedy) – Occupational Therapist (“OT”) without a Referral.

This bill amends current law Education Law, to permit the provision of OT services without a referral for 10 visits or 30 days – whichever occurs first. Under current law, an OT treatment program designed to restore function is only authorized upon the prescription or referral from a physician, nurse practitioner or other provider acting within the scope of their practice. Under this legislation such treatment without a referral may only be provided: (1) by an OT that has practiced on a “full time basis equivalent to not less than three years”; and (2) if the OT provides written notice to each patient receiving such treatment that OT may not be covered by insurance without a referral. Thus, a health plan may still require a referral as part of its coverage determination.

If signed by the Governor, this bill will take effect 120 days thereafter.

 

  • 8537 (Pheffer Amato)/S.7881 (Stavisky) – Coverage of Chest Wall Reconstruction Surgery.

This bill mandates coverage for chest wall reconstruction surgery after a partial or full mastectomy, including: all stages of reconstruction; surgery and reconstruction of the other chest wall to produce a symmetrical appearance; and aesthetic flap closure, as such term is defined by the National Cancer Institute.  The scope of chest wall reconstruction coverage is comparable to the mandated coverage of breast reconstructive surgery.

If signed by the Governor, this bill will apply to policies and contracts that are issued, renewed or modified on or after the 90th day following enactment.

 

  • 879 (Gottfried)/S.8113 (Cleare) – Definition of “Clinical Peer Reviewer.”

This bill requires that for the purposes of utilization review determinations, a clinical peer reviewer shall be board certified in the same or similar specialty as the provider who is providing the service or treatment. Current law only requires clinical review by a specialist upon an appeal of a denial. The bill also requires that: 1) determinations involving substance use disorder treatment be made by a physician who specializes in behavioral health and has experience in substance use disorder courses of treatment; and 2) determinations involving treatment of a mental health condition, be made by a physician who specializes in mental health and has experience in the delivery of mental health courses of treatment.

If signed by the Governor, this bill will take effect 90 days thereafter.

 

  • 289C (Gottfried)/S.2121C (Rivera) – Coverage for Medically Fragile Children.

This bill amends the utilization review provisions of the Insurance and Public Health laws by adding various requirements relating to treatments for medically fragile children.  A number of provisions go beyond utilization review and impose network and payment requirements.  The legislation is clear that, to the extent its provisions go beyond the role of a utilization review agent, it is a plan’s obligation to comply with all portions of the bill that are not administered by a utilization review agent.

Specifically, this bill includes provisions that:

  • Define “medically fragile child.”  The definition is quite broad and includes individuals who are under 21 years of age and have a chronic debilitating condition or conditions, who may or may not be hospitalized or institutionalized, and meets one or more of the specified criteria; as well as children with severe conditions, including but not limited to traumatic brain injury, that typically require care in a specialty care center for medically fragile children – even if the child does not have a chronic debilitating condition. The term also includes any patient who has received prior approval from a utilization review agent for admission to a specialty care facility for medically fragile children, “at least until discharge from that facility occurs.”
  • Define “medically necessary” with respect to treatments for medically fragile children.  The term is defined very broadly so as to limit the number of services that can be denied as not medically necessary.
  • Require clinical peer reviewers reviewing treatments for medically fragile children to be licensed physicians who are either: (1) board certified or board eligible in pediatric rehabilitation, pediatric critical care, or neonatology; or (2) board certified in a pediatric subspecialty directly relevant to the patient’s medical condition.
  • Impose strict standards on the clinical guidelines that plans can use to determine whether a service for a medically fragile child is medically necessary.
  • Provide that a utilization review agent must identify an available provider of needed covered services, as determined through a person-centered care plan, to effect safe discharge from a hospital or other facility; and ensure that medically fragile children receive services from providers who have demonstrated expertise in caring for the medically fragile children.
  • Require commercial health plans (except Medicaid Managed Care Organizations (“MCOs”)) to pay at least 85 percent of the facility’s negotiated acute care rate for all days of inpatient hospital care at a participating specialty care center for medically fragile children (unless a different percentage or method has been mutually agreed to) when the plan and the specialty care facility mutually agree the patient is ready for discharge to the patient’s home but requires specialized home services that are not available or in place, or the patient is awaiting discharge to a residential health care facility when no residential health care facility bed is available.  When a patient is receiving rehabilitation services at a specialty care center and the plan and the center mutually agree that the patient is ready or discharge to the patient’s home, but specialized home services are not available or in place, the plan must pay the center’s Medicaid skilled nursing facility rate unless another rate is agreed to. Medicaid MCOs must pay a negotiated rate for all days described above.
  • Require the Department of Health (“DOH”) to designate a single set of clinical standards applicable to all utilization review agents regarding: (1) acute and sub-acute inpatient rehabilitation for medically fragile children; and (2) pediatric extended acute care stays.

If signed by the Governor, this bill will take effect on the January 1st following enactment.

 

  • 1171A (Bronson)/S.6574A (Kennedy) – Coverage of Outpatient Treatment by Mental Health Practitioners.

This bill mandates outpatient coverage, within their scope of practice, of services provided by mental health counselors, marriage and family therapists, creative arts therapists, and psychoanalysts. Nearly identical legislation was vetoed by Governor Cuomo in 2019.

If signed by the Governor, this bill will apply to policies and contracts that are issued, renewed or modified on or after the January 1st following enactment.

 

  • 2085A (Dinowitz)/S.906B (Sanders) – Coverage of Colorectal Cancer Early Detection.

This bill requires insurers to provide coverage for colorectal cancer screening, including “all [] examinations and laboratory tests in accordance with American Cancer Society Guidelines for colorectal cancer screening of average risk individuals.” Such screenings would not be subject to deductibles, copays, or other cost-sharing. The bill also requires insurers to annually notify enrollees of colorectal screening covered under the policy.

If signed by the Governor, this bill will take effect immediately and apply to policies and contracts that are issued, renewed or modified thereafter.

 

  • 10186 (Gunther)/S.8805 (Breslin) – Donate Life Registration.

This bill requires plans to include on “any forms required of enrollees” a space for such individuals to register or decline to register in the Donate Life Registry for organ, eye and tissue donation. The bill specifically requires the following statement be included on the form in clear and conspicuous type: “You must fill out the following section: Would you like to be added to the Donate Life Registry? Check box for ‘yes’ or ‘skip this question.”

If signed by the Governor, this bill will take effect 180 days thereafter.

 

  • 807 (O’Donnell)/S.688 (Hoylman) – Coverage for Pre-exposure Prophylaxis and Post-Exposure Prophylaxis re. HIV.

This bill requires plans that provide coverage of prescription drugs to include coverage for pre- and post-exposure prophylaxis for the purposes of HIV prevention.

If signed by the Governor, this bill will take effect immediately.

 

  • 7408A (Gottfried)/S.7501 (Hinchey) – Postexposure Treatment for Rabies.

This bill provides that a county health authority’s authorization of postexposure treatment for rabies shall be considered sufficient prior authorization for health insurance coverage.   The bill also clarifies under what circumstances the county health authority may choose to assume financial responsibility for the cost of treatment and when a person may be treated at their own expense if they so choose. This bill also requires providers to accept payment by county health authorities at a rate set by the DOH which shall not be less than the Medicaid fee for service rate for such services.

If signed by the Governor, this bill will take effect immediately.

 

  • 8169A (Cruz)/S.7199A (Gounardes) – Prohibition of Certain Provisions in Insurance Contracts (“HEAL”).

This bill would prohibit insurers from entering into contracts with providers that include most-favored-nation provisions, or provisions that restrict the ability of a plan or provider from disclosing claims costs or price and quality information.

If signed by the Governor, this bill will take effect on January 1, 2023.

 

  • 3276 (Gunther)/S.5909 (Kaminsky) – Step Therapy.

This bill prohibits individual and group health insurance policies and HMOs from applying fail first or step therapy to mental health benefits.

If signed by the Governor, this bill would take effect immediately and apply to any policies established or renewed after such date.

 

  • 1741A (Gottfried)/S.5299A (Rivera) – Co-Pay Accumulator.

This bill requires health plans to apply any third-party payment, such as a drug manufacturer coupon, to out-of-pocket expenses when calculating any out-of-pocket maximum or cost-sharing requirement.

Specifically, the bill requires insurance policies that provide coverage for prescription drugs to apply any third-party payments or other price reduction instruments for out-of-pocket expenses made on behalf of an insured individual to calculations of the individual’s overall contribution to any out-of-pocket maximum or cost-sharing requirement.

The bill expressly provides that, if application of this requirement would result in health savings account (“HSA”) ineligibility under federal law, such requirement would apply to HSA-qualified high deductible plans after an enrollee has satisfied the minimum deductible. However, for preventative care services, the requirement would apply regardless of whether the enrollee has met the minimum deductible under federal law.

If signed by the Governor, this bill will take effect January 1st, succeeding enactment.

 

  • 5411D (McDonald)/S.4620C (Breslin) – “Patient Rx Information and Choice Expansion Act.”

This bill requires health plans to provide real-time patient specific prescription drug out of pocket cost details, including the cost, benefit, and coverage data as required to the enrollee, his or her health care provider, or the third-party of his or her choosing.

If signed by the Governor, this bill will take effect on July 1, 2023.

 

  • 7469 (Cruz)/S.4856 (Reichlin–Melnick) – Additional Prescription Drugs During a State Disaster Emergency.

This bill requires health plans to maintain a process that, upon the declaration of a State disaster emergency, allows an insured, an insured’s designee, or the prescribing health care provider to immediately obtain an additional 30-day supply of any current prescription at the same level of coverage as a normal refill. This requirement does not apply to Schedule II and III controlled substances, as well as other prescription drugs that may be included in a list to be developed by the Commissioner of Health.

If signed by the Governor, this bill will take effect immediately and will apply to all policies and contracts issued, renewed, modified, altered or amended thereafter.

 

  • 9215 (McDonald)/S.8192 (Breslin) – Benefits for Public Retirees.

This bill prohibits any reduction of benefits for skilled nursing care provided to retired public employees or covered dependents enrolled in NYSHIP at the time such person becomes eligible for Medicare. However, such retiree benefits may be coordinated with and treated as secondary insurance to Medicare.

If signed by the Governor, this bill will take effect immediately.

 

  • 10425 (Abbate)/S.9347 (Jackson) – Extrinsic Evidence in Cases er. Retirees’ Insurance.

This bill would allow employee organizations for both public and private employers to use extrinsic evidence to determine the intent, extent and scope of vesting of retiree health insurance benefits for periods beyond the durational term of the collective bargaining agreement.

If signed by the Governor, this bill would take effect immediately.

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