New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT
25 BEAVER STREET
NEW YORK, NEW YORK 10004

The Office of General Counsel issued the following informal opinion on September 18, 2002, representing the position of the New York State Insurance Department.

Mammography Screening

Issue

Must a group contract issued by a Health Service Corporation cover annual mammography screening for individuals over age 50?

Conclusion

Such coverage is mandated, except for contracts issued to cover employees employed in more than one state.

Facts

This is based on the information contained in the original inquiry of Mr. A, C.S.W., Executive Director of Corporation B, and conveyed during the telephone conversation between Mr. A and the Department.

Mr. A’s mother-in-law is 82 years of age and retired from Company C and is covered under a health insurance contract purchased by her former employer from Insurance Company D. On June 6, 2002, Insurance Company D denied coverage for a mammography screening she underwent on May 14, 2002 and indicated in the Explanation of Benefits that her "plan does not provide benefits for preventive or routine services".

Mr. A believes that Insurance Company D’s position is contrary to statute and intends to "request an internal appeal" on his mother-in-law’s behalf.

Analysis

While Company C, the former employer of Mr. A’s mother-in-law has, since her retirement, undergone several transformations as a result of mergers and is now known as Company E, Mr. A believes that the class of individuals covered under the Insurance Company D contract has not changed.

Mr. A cites New York Insurance Law § 3216(i)(11)(A)(iv) (McKinney 2000) in support of his contention that Insurance Company D must cover the mammography screening. That provision, which deals with individual contracts issued by commercial insurers, does not establish the minimum benefits that must be provided by Insurance Company D, which is a Health Service Corporation licensed by this Department pursuant to New York Insurance Law Article 43 (McKinney 2000 and 2002 Supplement). The relevant provision in the case of such contracts is New York Insurance Law § 4303(p) (McKinney 2000), which provides:

(1) A . . . health service corporation which provides coverage for hospital, surgical or medical care shall provide the following coverage for mammography screening for occult breast cancer, except that this provision shall not apply to a contract issued pursuant to section four thousand three hundred five of this article which covers persons employed in more than one state or the benefit structure of which was the subject of collective bargaining affecting persons employed in more than one state: . . . (D) an annual mammogram for covered persons aged fifty and older. The coverage required in this paragraph may be subject to annual deductibles and coinsurance as may be deemed appropriate by the superintendent and as are consistent with those established for other benefits within a given policy.

(2) In no event shall coverage pursuant to this section include more than one annual screening.

(3) For purposes of this subsection, mammography screening means an X-ray examination of the breast using dedicated equipment, including X-ray tube, filter, compression device, screens, films and cassettes, with an average glandular radiation dose less than 0.5 rem per view per breast.

New York Insurance Law § 4305 (McKinney 2000 and 2002 Supplement) regulates contracts issued by Health Service Corporations to groups.

Company C has undergone several incarnations. It is possible that at any of these times, the policy in question was issued to cover "persons employed in more than one state or the benefit structure of which was the subject of collective bargaining affecting persons employed in more than one state" and, thus, was not subject to New York Insurance Law § 4303(p).

The requirement for mammography screening was first introduced by 1988 N.Y. Laws 692, which initially enacted New York Insurance Law § 4303(p). The statute enacted in 1988 mandated coverage only for "patients over forty-nine years of age" and contained the exception for employees in more than one state. The statute also provided that:

Such coverage shall be included at the inception of all new policies and with respect to policies issued before the effective date of this subsection [January 15, 1989] at the first anniversary date thereafter, without evidence of insurability and at any subsequent annual anniversary date subject to evidence of insurability.

New York Insurance Law § 4303(p)(1) (McKinney 1988).

Because of internal inconsistencies within the enactment, the mammography mandate was modified by 1989 N.Y. Laws 417. In addition to New York Insurance Law § 4303(p), which assumed its present form, New York Insurance Law §§ 3216 and 3221, which regulate group health insurance policies issued by commercial insurers, were also modified. The modified statutes took effect on January 1, 1990 and apply to "all policies and contracts issued, renewed, modified, altered or amended on or after such date".

The Legislature recently passed Assembly Bill 11723 (Rules Committee), which is awaiting transmittal to the Governor, and would, inter alia, remove the collective bargaining exclusion presently set forth in New York Insurance Law § 4303(p)(1). If the Bill is approved by the Governor, it would take effect on January 1, 2003 and apply to all policies and contracts issued, modified, or renewed after that date.

Since group contracts, by their terms, are issued on an annually renewable basis, the mandate of New York Insurance Law § 4303(p) would be applicable to the policy covering Mr. A’s mother-in-law, unless the present exclusion for collectively bargained contracts, set forth in New York Insurance Law § 4303(p)(1) would be applicable. After January 1, 2003, that exclusion would no longer be applicable.

In Mr. A’s July 9, 2002 inquiry, Mr. A mentions an internal appeal. Since the denial by Insurance Company D was not on the grounds of medical necessity, it is not an adverse determination as defined in New York Insurance Law § 4900(a) (McKinney 2000), and therefore the utilization review established by New York Insurance Law § 4904 (McKinney 2000) is not available. Since the contract issued by Insurance Company D does not meet the definition of a managed care health insurance contract in New York Insurance Law § 4801(c) (McKinney 2000), the grievance procedure mandated by New York Insurance Law § 4802 (McKinney 2000) is not available. Accordingly, the Department infers that the internal appeal to which Mr. A refers is a non-statutory contractual right granted by Insurance Company D.

Whether Insurance Company D did, in fact, act properly with respect to the mammography screening undergone by Mr. A’s mother-in-law could be determined by this Department’s Consumer Services Bureau after Mr. A makes a complaint, with a full rendition of the facts.

For further information you may contact Principal Attorney Alan Rachlin at the New York City Office.