New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT

25 BEAVER STREET
NEW YORK, NEW YORK 10004

Eliot Spitzer
Governor
Eric R. Dinallo
Acting Superintendent

The Office of General Counsel issued the following opinion on February 21, 2007, representing the position of the New York State Insurance Department.


Re: Licensed Clinical Social Worker


Question Presented:

Does a group health insurance policy, which provides coverage for the diagnosis and treatment of psychiatric, mental, nervous or emotional disorders, ailments or illness, cover those same services when rendered by a licensed clinical social worker?

Conclusion:

Yes. Because the group health insurance policy in question expressly provides coverage for the diagnosis and treatment of psychiatric, mental, nervous or emotional disorders, ailments or illness, the health insurer must extend this coverage to include reimbursement for services performed by a licensed clinical social worker. That social worker must be licensed pursuant to N.Y. Educ. Law § 7704(2), meet the experience requirements stated in N.Y. Ins. Law § 3221(l)(4)(D), and render such services within the lawful scope of his practice.

Facts:

An inquirer reported that she currently receives health insurance coverage under her employer’s group health insurance policy, which was issued in New York from an insurer that is authorized to write accident and health insurance. The certificate contains the following excerpted provision under the section entitled “Major Medical Benefits, Covered Charges”:


Limitations

Benefits will be paid for covered charges incurred for the medical services shown below only to the extent described below.

* * *

Diagnosis and treatment for psychiatric, mental, nervous or emotional disorders, ailments or illness

For these services, only the following charges will be covered:

1. charges incurred while the person is hospitalized, up to 30 days per calendar year.

2. charges incurred for outpatient visits, up to 30 visits per calendar year, subject to a maximum benefit of $50 per visit. The facility for such visits must:

a. have been issued an operating certificate by the commissioner of mental health pursuant to the mental hygiene law; or

b. be operated by:

• the office of mental health,
• a psychiatrist or psychologist licensed to practice in New York, or
• a professional corporation of such psychiatrists or psychologists.

3. charges incurred for up to 3 psychiatric emergency visits per calendar year, subject to a benefit of $60 per visit. Benefits provided for emergency visits will reduce benefits otherwise payable for inpatient or outpatient care described in items 1 and 2. (Emphasis in original).

The inquirer states that she wished to receive reimbursement under this policy for treatment that she has received from a licensed clinical social worker. The New York State Education Department, Office of the Professions, maintains an online database of currently effective registrations that confirms that this clinical social worker is currently licensed under the Education Law.

Analysis:

The insurer is a life insurance company authorized to write accident and health insurance policies. The policy in question was issued in New York, so Article 32 of the Insurance Law applies to your group accident and health policy. N.Y. Ins. Law § 3221(l)(4) provides:

(4) (A) Every insurer delivering a group policy or issuing a group policy for delivery, in this state, which provides reimbursement for psychiatric or psychological services or for the diagnosis and treatment of mental, nervous or emotional disorders and ailments, however defined in such policy, by physicians, psychiatrists or psychologists, must make available and if requested by the policyholder provide the same coverage to insureds for such services when performed by a licensed clinical social worker, within the lawful scope of his or her practice, who is licensed pursuant to article one hundred fifty-four of the education law. Written notice of the availability of such coverage shall be delivered to the policyholder prior to inception of such group policy and annually thereafter, except that this notice shall not be required where a policy covers two hundred or more employees or where the benefit structure was the subject of collective bargaining affecting persons who are employed in more than one state.

(B) The state board for social work shall maintain a list of all licensed clinical social workers qualified for reimbursement under this paragraph.

(C) Such coverage shall be made available at the inception of all new policies and, with respect to all other policies at any subsequent annual anniversary date of the policy subject to evidence of insurability.

(D) In addition to the requirements of subparagraph (A) of this paragraph, every insurer issuing a group policy for delivery in this state which policy provides reimbursement to insureds for psychiatric or psychological services or for the diagnosis and treatment of mental, nervous or emotional disorders and ailments, however defined in such policy, by physicians, psychiatrists or psychologists, must provide the same coverage to insureds for such services when performed by a licensed clinical social worker, within the lawful scope of his or her practice, who is licensed pursuant to subdivision two of section seven thousand seven hundred four of the education law and in addition shall have either (i) three or more additional years experience in psychotherapy, which for the purposes of this subparagraph shall mean the use of verbal methods in interpersonal relationships with the intent of assisting a person or persons to modify attitudes and behavior which are intellectually, socially or emotionally maladaptive, under supervision, satisfactory to the state board for social work, in a facility, licensed or incorporated by an appropriate governmental department, providing services for diagnosis or treatment of mental, nervous or emotional disorders or ailments, or (ii) three or more additional years experience in psychotherapy under the supervision, satisfactory to the state board for social work, of a psychiatrist, a licensed and registered psychologist or a licensed clinical social worker qualified for reimbursement pursuant to subsection (h) of this section, or (iii) a combination of the experience specified in items (i) and (ii) totaling three years, satisfactory to the state board for social work. The state board for social work shall maintain a list of all licensed clinical social workers qualified for reimbursement under this subparagraph.


Subparagraph (A) of Insurance Law § 3221(l)(4) is inapplicable to the inquiry, because there is nothing to indicate that the employer, the policyholder, ever requested coverage for services performed by licensed clinical social workers. However, subparagraph (D), which mandates the inclusion of such coverage, does apply. The policy explicitly provides reimbursement for psychiatric and psychological services rendered for the diagnosis and treatment of mental, nervous or emotional disorders and ailments. Thus, the health insurer must extend coverage for these same services when rendered by a licensed clinical social worker, so long as the social worker performs these services within the lawful scope of his practice, is licensed pursuant to N.Y. Educ. Law § 7704(2), and meets the experience requirements prescribed N.Y. Ins. Law § 3221(l)(4)(D).

Group accident and health insurance policies issued in this state must comport with the requirements of Article 32, and must include the standard policy provisions contained therein. The policy restricts coverage for outpatient treatment to facilities that have either been issued an operating certificate by the commissioner of mental health, or alternately, that are operated by a licensed psychiatrist or psychologist, or a corporation consisting of such members. This restriction cannot operate to deny reimbursement to the extent that a licensed clinical social worker who meets the qualifications set forth in § 3221(1)(4)(D) renders outpatient treatment that the policy would otherwise cover. Where the operative effect of a policy provision such as this one would deny coverage solely on the basis that the treatment was rendered by a licensed clinical social worker, as opposed to a licensed psychiatrist or psychologist, such a restriction contravenes § 3221(1)(4)(D). Pursuant to N.Y. Ins. Law § 3103(a), the policy shall be enforceable as if it conformed to the requirements of the Insurance Law.

The licensing information provided on the Education Department’s website shows that the provider is licensed, but it does not indicate whether the clinical social worker specifically obtained his license pursuant to N.Y. Educ. Law § 7704(2). In order to trigger the coverage requirements of § 3221(l)(4)(D), the inquirer must verify that the provider is so licensed. Moreover, the inquirer should verify that the additional qualifications set forth in that latter provision also are satisfied.

If your insurer denies the claim on the basis that services were rendered by a licensed clinical social worker rather than a psychiatrist or psychologist, then the inquirer may contact the Insurance Department’s Consumer Services Bureau and file a complaint. Additionally, this matter is being referred to the Department’s Health Bureau, which will contact the insurer and direct that the insurer amend its policy form to conform to applicable law.

For further information you may contact Principal Attorney Paul Zuckerman at the New York City Office.