S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3104
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 2, 2023
                                ___________
 
 Introduced by M. of A. McDONALD -- read once and referred to the Commit-
   tee on Insurance
 
 AN  ACT  to amend the insurance law, in relation to including clinically
   necessary treatment for certain inpatient coverage
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section  1.  Paragraph  30  of  subsection  (i) of section 3216 of the
 insurance law, as amended by section 5 of subpart A of part BB of  chap-
 ter 57 of the laws of 2019, is amended to read as follows:
   (30)(A)  Every policy that provides hospital, major medical or similar
 comprehensive coverage shall provide inpatient coverage for the  diagno-
 sis  and  treatment  of substance use disorder, including detoxification
 and rehabilitation services. Such inpatient coverage [shall] MAY include
 [unlimited medically] CLINICALLY necessary treatment for  substance  use
 disorder  treatment  services  provided  in  residential settings AT THE
 DISCRETION OF THE SERVICE PROVIDER.  Further,  such  inpatient  coverage
 shall not apply financial requirements or treatment limitations, includ-
 ing utilization review requirements, to inpatient substance use disorder
 benefits  that  are  more  restrictive  than  the  predominant financial
 requirements and treatment  limitations  applied  to  substantially  all
 medical and surgical benefits covered by the policy.
   (B)  Coverage  provided under this paragraph may be limited to facili-
 ties in New York state that are licensed, certified or otherwise author-
 ized by  the  office  of  [alcoholism  and  substance  abuse]  ADDICTION
 services  AND  SUPPORTS and, in other states, to those which are accred-
 ited by the joint commission as alcoholism, substance abuse, or chemical
 dependence treatment programs and are similarly licensed,  certified  or
 otherwise authorized in the state in which the facility is located.
   (C)  Coverage  provided  under this paragraph may be subject to annual
 deductibles and co-insurance as deemed appropriate by the superintendent
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04901-01-3
 A. 3104                             2
              

 
 and that are consistent with those imposed on other  benefits  within  a
 given policy.
   (D) This subparagraph shall apply to facilities in this state that are
 licensed, certified or otherwise authorized by the office of [alcoholism
 and  substance  abuse]  ADDICTION services AND SUPPORTS that are partic-
 ipating in the insurer's provider network. Coverage provided under  this
 paragraph  shall  not  be subject to preauthorization. Coverage provided
 under this paragraph shall also not be subject to concurrent utilization
 review during the first twenty-eight days  of  the  inpatient  admission
 provided  that  the  facility notifies the insurer of both the admission
 and the initial treatment plan within two business days  of  the  admis-
 sion.  The  facility shall perform daily clinical review of the patient,
 including periodic consultation with the insurer at or just prior to the
 fourteenth day of treatment to ensure that the  facility  is  using  the
 evidence-based  and  peer  reviewed clinical review tool utilized by the
 insurer which is designated by the office of [alcoholism  and  substance
 abuse] ADDICTION services AND SUPPORTS and appropriate to the age of the
 patient,  to  ensure  that  the inpatient treatment is [medically] CLIN-
 ICALLY necessary for the patient. Prior to discharge, the facility shall
 provide the patient and the insurer with a written discharge plan  which
 shall  describe  arrangements  for  additional services needed following
 discharge from the inpatient facility as determined using the  evidence-
 based  and  peer-reviewed  clinical  review tool utilized by the insurer
 which is designated by the office of [alcoholism  and  substance  abuse]
 ADDICTION services AND SUPPORTS.  Prior to discharge, the facility shall
 indicate  to the insurer whether services included in the discharge plan
 are secured or determined to be reasonably  available.  Any  utilization
 review  of  treatment  provided  under  this  subparagraph may include a
 review of all services provided during such inpatient treatment, includ-
 ing all services provided during the first  twenty-eight  days  of  such
 inpatient  treatment.  Provided,  however, [the] SUCH UTILIZATION REVIEW
 SHALL ONLY BE IMPOSED TO  THE  EXTENT  THE  INSURER'S  REQUIREMENTS  ARE
 PERMITTED  UNDER  THE  FEDERAL  PAUL  WELLSTONE AND PETE DOMENICI MENTAL
 HEALTH PARITY AND ADDICTION EQUITY ACT  OF  2008  AND  APPLICABLE  REGU-
 LATIONS  (29  U.S.C. § 1185A; 42 U.S.C. § 300GG-26; 45 C.F.R. PARTS 146,
 147). THE insurer [shall] MAY only deny coverage for any portion of  the
 initial  twenty-eight  day  inpatient  treatment  on the basis that such
 treatment was not [medically] CLINICALLY  necessary  if  such  inpatient
 treatment was [contrary to] NOT INDICATED BY the evidence-based and peer
 reviewed  clinical  review  tool utilized by the insurer which is desig-
 nated by the  office  of  [alcoholism  and  substance  abuse]  ADDICTION
 services  AND SUPPORTS.   ANY DENIAL MUST SPECIFICALLY IDENTIFY: (I) HOW
 SUCH TREATMENT WAS NOT INDICATED BY THE OFFICE OF ADDICTION SERVICES AND
 SUPPORTS DESIGNATED CLINICAL  REVIEW  TOOL;  AND  (II)  HOW  THE  POLICY
 APPLIED THE OFFICE OF ADDICTION SERVICES AND SUPPORTS DESIGNATED TOOL TO
 THE OUTPATIENT SUBSTANCE USE DISORDER CARE IN A MANNER COMPARABLE TO AND
 NO  MORE  STRINGENT THAN THE POLICY'S APPLICATION OF ITS CLINICAL REVIEW
 TOOL FOR OUTPATIENT MEDICAL AND SURGICAL BENEFITS COVERED BY THE POLICY.
 ANY CONCURRENT OR RETROSPECTIVE REVIEW IMPOSED  BY  THE  PLAN,  BOTH  AS
 WRITTEN  AND  AS APPLIED, MUST BE CONSISTENT WITH THE FEDERAL PAUL WELL-
 STONE AND PETE DOMENICI MENTAL HEALTH PARITY AND ADDICTION EQUITY ACT OF
 2008 AND APPLICABLE REGULATIONS (29 U.S.C. § 1185A; 42 U.S.C.  §  300GG-
 26;  45  C.F.R. PARTS 146, 147). An insured shall not have any financial
 obligation to the facility for any  treatment  under  this  subparagraph
 other  than any copayment, coinsurance, or deductible otherwise required
 under the policy.
 A. 3104                             3
 
   (E) An insurer  shall  make  available  to  any  insured,  prospective
 insured,   or  in-network  provider,  upon  request,  the  criteria  for
 [medical]  CLINICAL  necessity  determinations  under  the  policy  with
 respect to inpatient substance use disorder benefits.
   (F) 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] CLINICAL necessity, or based on whether the
 treatment is  experimental  or  investigational;  formulary  design  for
 prescription  drugs;  network tier design; standards for provider admis-
 sion to participate in a network, including reimbursement rates; methods
 for determining usual, customary, and reasonable charges; fail-first  or
 step therapy 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)  "substance use disorder" shall have the meaning set forth in the
 most recent edition of the diagnostic and statistical manual  of  mental
 disorders  or  the  most  recent edition of another generally recognized
 independent standard of current medical practice, such as  the  interna-
 tional classification of diseases[.]; AND
   (V)  "CLINICAL NECESSITY" MEANS BOTH AN INDIVIDUAL'S MEDICAL NEEDS AND
 ANY SOCIAL DETERMINANTS OF HEALTH THAT WILL  PROMOTE  SUCH  INDIVIDUAL'S
 STABILITY FOLLOWING DISCHARGE FROM TREATMENT.
   (G) An insurer shall provide coverage under this paragraph, at a mini-
 mum, consistent with the federal Paul Wellstone and Pete Domenici Mental
 Health Parity and Addiction Equity Act of 2008 (29 U.S.C. § 1185a).
   § 2. This act shall take effect immediately.