NYS Insurance Regulators to Health Insurers: Ensure Your Networks Are Adequate

If adopted, this regulation, would establish network adequacy standards for behavioral health services, marking a historic first for New York’s commercial insurance coverage.

Background

The mandate for parity in benefits for mental health and substance abuse treatment, as well as benefits for physical injury and sickness, originates from a 2008 federal law. This law requires parity for all group health plans with over 50 participants (see 29 U.S.C. § 1185(a)). The proposed regulation aligns with this federal mandate and forms part of New York State’s comprehensive strategy to improve access to health care, particularly mental health and addiction services.

The DFS has previously proposed strict measures relating to mental health parity. In July 2020, the DFS published Proposed Insurance Regulation 218, which, if finalized, would have been one of the most stringent mental health parity compliance regimes in the country. In August 2021, the Office of the New York State Attorney General and the US Department of Labor (DOL) announced landmark agreements with UnitedHealthcare, the nation’s largest health insurer, to resolve allegations of unlawful denial of health care coverage for mental health and substance use disorder treatment for thousands of Americans. As a result of these agreements, UnitedHealthcare agreed to pay approximately $14.3 million in restitution to consumers affected by the policies, including $9 million to more than 20,000 New Yorkers with behavioral health conditions who received denials or reductions in reimbursement.

Analysis

The proposed regulation aims to enhance access to mental health and substance use treatment for all New Yorkers. If an in-network provider cannot meet the established appointment wait times, patients may access treatment from an out-of-network provider who can meet the wait times at the in-network cost-sharing. The regulation specifies that an adequate network of health care providers includes residential facilities that provide sub-acute care, assertive community treatment providers, critical time intervention services providers, and mobile crisis intervention services providers.

The regulation proposes several consumer protections, including:

• Appointment wait time standards for insurers for behavioral health services (10 business days for an initial appointment with an outpatient facility or clinic, 10 business days for an initial appointment with a health care professional who is not employed by or contracted with an outpatient facility or clinic, and seven days for an appointment following a discharge from a hospital or an emergency room visit).
• Requirements for insurers to assist consumers in accessing in-network providers within those standards.
• Specific information to be included in provider directories, including provider affiliations with facilities, level of care offered by the behavioral health provider, the county where the behavioral health provider is located, and restrictions on a provider’s scope of services, such as the age of patients or mental health conditions treated.
• Insurers must now submit a written certification by December 31, 2025, and annually thereafter, confirming the health care plan has an access plan, has sufficient participating providers in each network used by the health care plan to meet the appointment wait time standards, and has performed the provider directory verification.
• The regulation outlines additional responsibilities for health care plans, including having designated staff with sufficient knowledge to help insureds find participating behavioral health providers that treat the insured’s specific behavioral health condition and having an access plan that establishes a protocol for monitoring and ensuring access to behavioral health services.

Takeaways

The proposed regulation is subject to a 60-day comment period in the State Register. While this DFS regulation is specific to commercial health insurance plans, the New York State Department of Health (DOH) has proposed an identical regulation for health maintenance organizations (HMOs), including Medicaid managed care plans, child health plus, and the essential plan.

The underlying goal of these proposals is to ensure parity in coverage for mental health and substance use disorders. Once these requirements become effective later this year, health insurers will need to continuously verify the accuracy of their posted network provider information and strengthen the network of providers who treat mental illness and substance abuse.

When the DFS cites a statement from the Governor’s Office in announcing a proposed regulation, licensees should take heed. ArentFox Schiff lawyers will continue to follow these developments in order to assist clients affected by the forthcoming regulation.