Mental Health and Substance Use Disorder (MH/SUD) FAQs
Chapter 57 of the Laws of 2019 included changes to the Insurance Law provisions related to health insurance coverage for mental health conditions and substance use disorders. The Department of Financial Services (DFS) received the following questions regarding provisions in the new law.
Applicability
Q.1. When does the law go into effect?
The law is effective January 1, 2020 and applies to policies and contracts issued or renewed in New York on or after that date.
Q.2. Does the law apply to grandfathered health plans?
Yes. The law applies to grandfathered health plans.
Q.3. Does the law apply to self-funded ERISA plans?
No. The law does not apply to self-funded ERISA plans.
Q.4. What entities are subject to the law?
Generally, the law applies to health insurers and HMOs (issuers) that provide comprehensive health insurance coverage and utilization review agents that perform utilization review for the issuer. Note, however, certain requirements of the law only apply to large group coverage.
Q.5. Does the law apply to Medicaid Managed Care plans, Child Health Plus, or the Essential Plan?
Yes. The law applies to Medicaid Managed Care plans, Child Health Plus, and the Essential Plan.
Q.6. Does the law apply to Medicaid fee-for-service or Medicare?
No. The law does not apply to Medicaid fee-for-service or Medicare.
Q.7. Does the law apply to the New York State Health Insurance Program (NYSHIP)?
Yes, but it does not apply until the expiration of the collectively-bargained agreement that is in effect on January 1, 2020.
Cost-Sharing for Mental Health Services
Q 8. When does the requirement that outpatient mental health services be subject to a copayment or coinsurance no greater than the primary care provider (PCP) office visit copayment or coinsurance apply?
- The requirement applies to individual, small, and large group coverage.
- The requirement applies to all outpatient mental health services provided in an Office of Mental Health (OMH) licensed, certified, or authorized facility.
- The requirement applies to in-network services. The requirement does not apply to out-of-network services.
Q.9. Does the limitation on copayments or coinsurance for outpatient mental health services provided in an OMH licensed, certified, or authorized facility from exceeding the copayment or coinsurance for a primary care provider (PCP) office visit apply to the facility charge, the professional services charge, or both?
The requirement applies to both the facility charge and the professional services charge.
Q.10. May an issuer apply the deductible to mental health or substance use disorder (MH/SUD) treatment in an outpatient facility if PCP visits are not subject to the deductible?
Yes. The requirements related to cost-sharing for outpatient MH/SUD treatment apply to copayments and coinsurance only. An issuer may subject MH/SUD treatment in an outpatient facility to the deductible if it complies with the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA).
Q.11. How should the requirement that outpatient MH/SUD treatment be subject to a copayment no greater than the PCP office visit copay be implemented in the Bronze standard plan that requires plans to provide three PCP visits covered in full and thereafter 50% coinsurance after the deductible?
The Bronze standard plan should continue to provide the three visits covered in full. Those visits may include a PCP visit, a visit for outpatient MH/SUD treatment, or both, not to exceed a combined total of three visits covered in full. Thereafter, outpatient MH/SUD treatment would be subject to 50% coinsurance after the deductible.
Q.12. Some issuers use the subclassification of office visits for the outpatient benefit classification for MHPAEA purposes. In those instances, the issuer uses a copayment for office visits and a coinsurance for all other outpatient services. If the imposition of a copayment for treatment in an outpatient MH/SUD facility does not comply with the Substantially All component of the MHPAEA financial requirements analysis, would DFS permit an issuer to maintain coinsurance on treatment in an outpatient MH/SUD facility if the issuer adds language limiting the coinsurance to no greater than the PCP copay?
To maintain compliance with MHPAEA, an issuer may subject MH/SUD treatment in an outpatient facility to coinsurance, if the issuer includes language in the policy or contract that limits the coinsurance amount to no greater than the PCP copayment.
Cost-Sharing for Substance Use Disorder Services (SUD)
Q. 13. When does the requirement that outpatient SUD services be subject to a copayment or coinsurance no greater than the primary care provider (PCP) office visit copayment or coinsurance apply?
- The requirement applies only to large group coverage.
- The requirement applies to all outpatient SUD services and is not limited to outpatient SUD services provided by outpatient facilities licensed, certified, or otherwise authorized by OASAS.
- The requirement applies to in-network services. The requirement does not apply to out-of-network services.
Q. 14. When does the requirement that outpatient SUD services be subject to no more than one copayment per day for all outpatient SUD treatment provided in a single day apply?
- The requirement applies only to large group coverage.
- The requirement applies only to services provided by outpatient facilities licensed, certified, or otherwise authorized by OASAS.
- The requirement applies to in-network services. The requirement does not apply to out-of-network services.
Q. 15. Are issuers permitted to apply separate copayments for the facility and the professional services for treatment of outpatient SUD in an outpatient facility?
Not for large group policies and contracts. The law provides, with respect to large group policies and contracts, that an issuer may not impose more than one copayment per day for all services provided in a single day by the facility.
Clinical Review Criteria for Mental Health Services
Q. 16. What is the clinical review criteria that issuers and their utilization review agents must use when conducting utilization review for mental health services?
Insurance Law § 4902(a)(12) and Public Health Law § 4902(1)(j) provide that when conducting utilization review for purposes of determining coverage for a mental health condition, issuers and their utilization review agents must use evidence-based and peer reviewed clinical review criteria that is appropriate to the age of the patient. The clinical review criteria must also be deemed appropriate and approved for such use by the Commissioner of OMH, in consultation with the Commissioner of Health (DOH), and the Superintendent of Financial Services.
Q. 17. Has any clinical review criteria been deemed appropriate and approved for use?
Yes. When making coverage determinations related to the treatment of mental health conditions for adults, OMH strongly encourages issuers and their utilization review agents to use the most recent version of the Level of Care Utilization System for Psychiatric and Addiction Services (LOCUS) tool, which is currently Version 20. When making coverage determinations related to treatment of mental health conditions for children and adolescents OMH strongly encourages issuers and their utilization review agents to use the most recent version of the Child and Adolescent Level of Care Utilization System for Psychiatric and Addiction Services (CALOCUS) tool, which is currently Version 2010. Issuers and their utilization review agents who use LOCUS and CALOCUS will not be required to demonstrate to OMH that the criteria is recognized as evidence-based, peer-reviewed, and appropriate to the age of the patients to whom it is intended to apply. Further, OMH will prioritize and expedite its review of submissions for issuers and their utilization review agents who use LOCUS and CALOCUS.
If an issuer or its utilization review agent opts to use clinical review criteria other than LOCUS or CALOCUS, the criteria should operationalize standards and define levels of care based on currently accepted best practices.
Q. 18. Do issuers and utilization review agents need to notify OMH, DOH, and DFS of the clinical review criteria they will be using?
Yes. Issuers and utilization review agents should notify OMH, DOH, and DFS of the name and publisher, if available, of the clinical review criteria that they intend to use in accordance with guidance issued by OMH. Utilization review agents should also identify the issuer for which the information is applicable.
Q. 19. To whom should the notification be submitted?
NYS Office of Mental Health
Digital submissions preferred for submissions of clinical review criteria
(Note attachment size limit of 35MB per email)
[email protected]
NYS Department of Financial Services
Attn: Gerasimos Stamoulis, 19th Floor
One Commerce Plaza
Albany, NY 12257
[email protected]
NYS Department of Health
Attn: Deborah Pulver, Room 1609
One Commerce Plaza
Albany, NY 12210
Q. 20. Should any additional information be included with the notification of the clinical review criteria?
Yes. Additional information should be submitted to OMH as follows:
All policies and procedures regarding the application of the clinical review criteria, including criteria for triggering utilization review, a description of the required training on the criteria for staff making level of care determinations, and a description of how inter-rater reliability will be ensured. This information should be submitted even when LOCUS and CALOCUS are used.
- Issuers and their utilization review agents who do not use LOCUS and CALOCUS will also need to demonstrate to OMH that the criteria is recognized as evidence-based and peer-reviewed and that the criteria is appropriate to the age of the patients to whom it is intended to apply.
- If a utilization review agent that is not a health insurance issuer makes a submission, the utilization review agent should identify the issuer for which the information is applicable.
- OMH, in conjunction with DFS and DOH, has published additional expectations and guiding principles that it will use to assess the adequacy of the utilization review agent’s clinical review criteria for the treatment of mental health conditions.
Q. 21. What is the timeframe for OMH’s review and approval of clinical review criteria?
- If the issuer indicates it uses LOCUS and CALOCUS for coverage determinations for mental health services, OMH will expedite the review of the issuer’s complete submissions made prior to the effective date of the legislation on January 1, 2020.
- Regardless of whether the issuer uses LOCUS and CALOCUS, or other clinical review criteria, OMH may provide issuers with time-limited conditional approval on or before January 1, 2020 to enable additional time to review or supplement submissions. Note, however, changes may need to be made to the clinical review criteria and/or issuer policies and procedures after January 1, 2020 as a result of the OMH review in order to obtain final approval.
- In addition, if clinical review criteria other than LOCUS and CALOCUS is used and a determination is made that the criteria does not comply with the law, corrective action, including re-review of denials, may need to be taken for denials issued after a conditional approval expires.
Disclosure
Q. 22. What type of restrictions regarding the availability of an individual provider of substance use disorder treatment or mental health treatment are required to be included in participating provider directories?
Insurance Law §§ 3217-a(a)(17) and 4324(a)(17) and Public Health Law § 4408(1)(r) require the provider directory to include the name, address, and telephone number of all participating providers, including facilities, and whether the provider is accepting new patients. In addition, for mental health or substance use disorder treatment providers, the directory must also include any affiliations with participating facilities certified or authorized by OMH or OASAS and any restrictions regarding the availability of the individual provider’s services.
Issuers should include any information in the directory which would aid an insured or prospective insured in the process of locating a network provider of mental health or substance use disorder treatment services and assist in the understanding of any restrictions on the provider’s availability. For example, the directory may indicate whether an individual provider does not serve adults or children, or individuals with particular mental health conditions; whether the individual provider is an employee of or affiliated with a facility; or whether the individual provider provides services in a specific facility location.
Q. 23. What type of information would DFS find sufficient for an issuer to satisfy the requirement that it disclose to each insured and, upon request, to each prospective insured the most recent comparative analysis the issuer performed to assess its compliance with MHPAEA?
DFS expects that issuers provide information that sufficiently describes the analysis they undertook to ensure MHPAEA compliance, including the factors considered, the evidentiary standards used, and how the results of the analysis demonstrate MHPAEA compliance. DFS does not expect issuers to provide to insureds, and upon request to prospective insureds, all the underlying data that they used in performing the tests that are required to ensure that the financial requirements, quantitative treatment limitations, and nonquantitative treatment limitations applied to MH/SUD benefits comply with MHPAEA.
Clinical Peer Reviewer
Q. 24. What is considered to be qualifying experience for clinical peer reviewers of mental health treatment?
Insurance Law § 4900(b)(1)(D) and Public Health Law § 4900(2)(a)(iv) provide that for the purpose of a determination involving treatment for a mental health condition, a clinical peer reviewer must be a physician who possesses a current and valid non-restricted license to practice medicine and has experience in the delivery of mental health courses of treatment, or a health care professional other than a licensed physician who specializes in behavioral health and has experience in the delivery of mental health courses of treatment and, where applicable, possesses a current and valid non-restricted license, certificate, or registration, or where no license, certificate or registration exists, is credentialed by the national accrediting body appropriate to the profession.
DFS expects clinical peer reviewers to have professional, clinical experience relevant to the mental health treatment that they are reviewing. For example, a best practice would be for a clinical peer reviewer making determinations regarding mental health treatment for children to have professional, clinical experience providing mental health services to children. DFS encourages issuers to ensure that utilization review is performed on a peer-to-peer basis to the greatest extent practicable. This does not mean that the clinical peer reviewer must have identical credentials to the treating provider in every case, but that the clinical peer reviewer is a similarly-trained and experienced health care professional and should have the opportunity to engage in a meaningful dialogue about the insured’s needs and the objectives of treatment with the treating health care provider as often as needed.