The Office of General Counsel issued the following informal opinion on May 18, 2001, representing the position of the New York State Insurance Department.
RE: Coverage of Cost for Enteral Formulas
(1) Are insurers and Health Maintenance Organizations ("HMOs") required to provide coverage for the cost of enteral formula?
(2) How is "enteral" defined?
(1) Chapter 177 of the Laws of 1997 amended various provisions of the Insurance Law to require that health insurance policies or contracts that provide prescription drug coverage include coverage for the cost of medically necessary enteral formulas and up to $2500 annual coverage for medically necessary food products modified to be low in protein. This same requirement applies to HMO contracts that provide prescription drug benefits.
(2) The Insurance Law and Insurance Department Regulations do not define "enteral". However, the Insurance Department referred to the dictionary definition of "enteral" as "[a] medicinal preparation treated so that it will pass through the stomach unaltered to be disintegrated in the intestines" in its comment letter to the Counsel to the Governor concerning the bill ultimately enacted as Chapter 177 of the Laws of 1997.
The inquirer, Mrs. A., does not provide specific facts.
Chapter 177 of the Laws of 1997 amended various provisions of Articles 32 and 43 of the Insurance Law with substantially identical language to require that health insurance policies or contracts which provide prescription drug coverage include coverage for the cost of medically necessary enteral formulas for home use for which a physician, or other licensed health care provider authorized to prescribe, has issued a written order. The written order must state that the enteral formula is clearly medically necessary and has been proven effective as a disease specific treatment regimen for those who are or would become malnourished or suffer from disorders which, if left untreated, would cause chronic physical disability, mental retardation, or death. The provisions go on to list some specific diseases for which enteral formulas have been proven effective. The law further provides that coverage for certain inherited diseases of amino acid and organic acid metabolism shall include coverage of up to $2500 annually for medically necessary modified protein solid food products.
These same requirements apply to HMO contracts that provide prescription drug benefits. Pub. Health Law § 4406(1) (McKinney Supp. 2001) states in relevant part: "The contract between a health maintenance organization and an enrollee shall be subject to regulation by the superintendent [of insurance] as if it were a health insurance subscriber contract, and shall include, but not be limited to, all mandated benefits required by article forty-three of the insurance law . . . . " (Emphasis added). Therefore, Pub. Health Law § 4406(1) (McKinney Supp. 2001) operates to require that HMO contracts, which supply prescription drug benefits, must provide the same benefits as health insurance policies or contracts for medically necessary enteral formulas and medically necessary food products modified to be low in protein.
The Department has attached a copy of Chapter 177 of the Laws of 1997 along with copies of the New York State Assembly and Senate Bill sponsors' memoranda and letter of support of the legislation. Assemblymember Connolly sponsored the legislation, Assembly Bill 352--B, in the New York State Assembly. Senate Bill 401--B, which had identical language, was sponsored by Senator Maziarz. The Governor signed this legislation into law on July 8, 1997 as Chapter 177 of the Laws of 1997 and it became effective 180 days later.
The provisions discussed above are applicable to insurance policies or contracts and HMO contracts that provide prescription drug coverage and that are issued or issued for delivery in New York State. Mrs. A. should consider contacting other States Health and/or Insurance Departments for information regarding other States laws.
For further information you may contact Senior Attorney Robert Freedman at the New York City Office.