Network Adequacy and Access Standards for Behavioral Health Services (11 NYCRR 38) FAQs

This FAQ applies to entities that are subject to Department of Financial Services regulation 11 NYCRR 38.

The Department of Health (DOH) will be providing guidance for managed care organizations that are subject to DOH’s corresponding regulation, 10 NYCRR 98.

Q 1. Which entities must comply with the requirements of 11 NYCRR 38?

DFS regulation 11 NYCRR 38 applies to the following entities when delivering or issuing for delivery in this State a comprehensive health insurance policy:

• Insurers licensed to write accident and health insurance pursuant to Insurance Law Article 42;
• A corporation organized pursuant to Insurance Law Article 43;
• A municipal cooperative health benefit plan certified pursuant to Insurance Law Article 47; and
• A student health plan established or maintained pursuant to Insurance Law section 1124 (collectively, “insurers”).

DOH promulgated a corresponding regulation (10 NYCRR 98) that applies to managed care organizations (e.g., health maintenance organizations, Medicaid managed care coverage, Child Health Plus coverage, and Essential Plan coverage).

Q 2. When does the regulation take effect?

The regulation takes effect July 1, 2025, and applies to comprehensive health insurance policies issued or renewed by insurers on and after such date.

Q 3. What provider types are subject to the appointment wait times established in the regulation?

The appointment wait times apply to facilities, clinics, and health care professionals that provide outpatient behavioral health services.

Q 4. The regulation requires insurers to have designated staff with sufficient knowledge to help insureds find in-network behavioral health providers to treat their behavioral health condition, as well as a designated phone number for this purpose. May insurers use existing staff members who assist insureds with locating providers and other general member services?

An insurer may use existing staff if the staff are trained to assist insureds to locate in-network providers that can treat their behavioral health condition and, if necessary, assist the insured with an access complaint. An insurer must also post the contact information for the department or unit, including a telephone number, on a publicly accessible area of its website that allows an insured to access this designated staff directly.

Q 5. If an insured or the insured’s designee requests a list of in-network providers available to treat a specific behavioral health condition (not in connection with an access complaint), must the insurer verify appointment availability before providing the list of in-network providers to the insured or the insured’s designee?

No. With respect to a request that is not in connection with an access complaint, the insurer must provide the insured or the insured’s designee with a list of behavioral health providers available to treat a specific behavioral health condition within three business days, but the insurer is not required to verify appointment availability.

Q 6. In response to an access complaint, what assistance must an insurer provide to an insured with regard to locating a behavioral health provider that can treat the insured’s behavioral health condition within the appointment wait times?

Following the receipt of an access complaint, an insurer has three business days to locate an in-network provider of behavioral health services that can meet the appointment wait time, treat the insured’s behavioral health condition, and is located a reasonable distance from the insured (if the insured requested an in-person appointment). The insurer must give the insured or the insured’s designee the name of and contact information for the in-network provider or providers. The insurer must verify appointment availability with the provider before giving the contact information to the insured or the insured’s designee.

If an insurer is unable to locate an in-network provider of behavioral health services that can meet these requirements, the insurer must notify the insured that the insured may obtain a referral to an out-of-network provider.

Q 7. If an insurer locates an in-network provider that can meet the appointment wait time, treat the insured’s behavioral health condition, and is located a reasonable distance from the insured (if the insured requested an in-person appointment) but the insured chooses not to take the available appointment, does this resolve the access complaint?

Yes, this would resolve the access complaint.

Q 8. If an insurer locates an in-network telehealth provider that can treat the insured’s behavioral health condition and can meet the appointment wait time, would this resolve the insured’s access complaint? 

Yes, unless the insured requested an in-person appointment.

Q 9. What is considered a “reasonable distance” for a provider to be located from an insured? How much greater may the distance be for insureds who reside in rural areas?

The network adequacy time and distance guidelines may be used to determine a reasonable distance, including how standards may vary in rural areas.

Q 10.  If an insured is discharged from an in-network hospital and is in need of an outpatient follow-up appointment, is the seven calendar day appointment wait time only satisfied if that same hospital offers the insured an outpatient follow-up appointment within seven calendar days?

No.  The regulation does not require that the follow-up appointment be with the same in-network hospital in order to satisfy the seven calendar day appointment wait time for a follow-up appointment.

Q 11. Under what circumstances must an insurer approve an insured’s out-of-network referral request?

Following the receipt of an access complaint, if an insurer is unable to locate an in-network provider of behavioral health services that can treat the insured’s behavioral health condition, is able to meet the appointment wait time, and is located a reasonable distance from the insured if the insured requested an in-person appointment, the insurer must notify the insured that the insured may obtain a referral to an out-of-network provider.

The insurer must approve a referral to an out-of-network provider if the out-of-network provider: (1) can treat the insured’s behavioral health condition; (2) is able to meet the appointment wait times; (3) is located within a reasonable distance from the insured if the insured specifically requests an in-person appointment; and (4) charges rates that are not excessive or unreasonable.

Q 12. Must an insurer approve an out-of-network referral request if the out-of-network provider cannot meet the appointment wait time?

No. An insurer is only required to approve a referral to an out-of-network provider if that provider is able to meet the appointment wait time.

Q 13. What if there are no out-of-network providers that can treat the insured’s condition who can meet all of the requirements?

If there are no out-of-network providers that can treat the insured’s behavioral health condition within the appointment wait time, are located within a reasonable distance if the insured requested an in-person appointment, and charge rates that are not excessive or unreasonable, insurers are not required to approve an out-of-network referral. Insurers are strongly encouraged to provide other assistance to insureds, such as providing information on other available in-network providers who can treat the insured’s condition that may be located at a further distance or who are available through telehealth, so insureds can access the services that they need.

Q 14. How long must an approved out-of-network referral remain in effect?

An approved out-of-network referral must remain in effect until the earlier of the following:

1. the behavioral health services are no longer medically necessary; or
2. the insurer locates an in-network provider of behavioral health services that can treat the insured’s behavioral health condition, is able to meet the appointment wait time, is located within a reasonable distance from the insured if the insured specifically requests an in-person appointment, and the insured’s treatment can be transitioned to the in-network provider, unless the insurer determines, in consultation with the insured’s treating provider, as appropriate, that such transition would be harmful to the insured.

Q 15. What happens if the insured or the insured’s designee disagrees with the insurer’s decision to transition the insured’s care to an in-network provider?

If the insured or the insured’s designee disagrees with the insurer’s transition of care determination, the insured or the insured’s designee may request an expedited determination or appeal pursuant to Insurance Law section 4802 or 4904, as applicable.

Q 16. What types of providers must be included in an insurer’s network to meet the requirements of the regulation?

An insurer must ensure that its provider network is adequate to meet the behavioral health needs of insureds and provide an appropriate choice of providers sufficient to render the behavioral health services covered under its health insurance policies and contracts. An insurer must also ensure that its network has adequate capacity and availability of behavioral health care providers to offer insureds appointments with providers that can treat insureds’ behavioral health conditions within the applicable appointment wait times required by the regulation.

Q 17. Must insurers include residential facilities that provide sub-acute care, assertive community treatment providers, critical time intervention services providers, and mobile crisis intervention services providers in their provider networks?

No, not at this time. Insurers are not required to include these providers in their networks until DFS determines, in consultation with DOH, the Office of Mental Health (“OMH”), and the Office of Addiction Services and Supports (OASAS) that there are sufficient numbers of these providers in this State.

Q 18. How will DFS make a determination that there are sufficient numbers of residential facilities that provide sub-acute care, assertive community treatment providers, critical time intervention services providers, and mobile crisis intervention services providers?

DFS is consulting with DOH, OMH, and OASAS, and the agencies are considering the numbers of these providers that are currently licensed, certified, or designated, along with their locations.

Q 19. Is there a list of residential facilities that provide sub-acute care, assertive community treatment providers, critical time intervention services providers, and mobile crisis intervention services providers with which insurers can contract?

Contact OMH AT [email protected] for a list of the providers or visit OMH Find a Mental Health Program.

Q 20. How specific must an insurer’s provider directory be when listing restrictions on services from a behavioral health provider?

The regulation requires a provider directory to list the age limit on the types of patients the behavioral health provider treats or any limits on the types of specific behavioral health conditions that the behavioral health provider treats.

Q 21. What specific behavioral health services and conditions must be included in the searchable and filterable feature of an insurer’s provider directory?

Provider directories must be searchable and filterable by the specific behavioral health services and conditions treated by the provider that the provider reports to the insurer.

Q 22. What level of care information must be included in a provider directory?

A provider directory must identify the level of care offered by a facility, including inpatient, outpatient, partial hospitalization, and intensive outpatient programs.

Q 23. What method must an insurer use to verify the accuracy of provider directory information? Is it sufficient to use provider portals where providers can update their information? 

An insurer must proactively contact in-network behavioral health providers in order to verify the accuracy of the information in the provider directory at least annually. Relying on providers to keep their information up-to-date in a portal is not sufficient.

Additionally, an insurer must have a method available on a publicly accessible area of its website for insureds, providers, and other persons to report errors in the provider directory information. Within 15 calendar days of receipt of reported errors, the insurer must review the errors reported and ensure that the online provider directory information is accurate.

Q 24. What obligation do providers have to provide timely and accurate responses to insurer requests to verify provider information?

The regulation does not address this; however, Insurance Law sections 3217-b(m) and 4325(n) require providers to notify insurers in a timely manner when their information must be changed in the insurer’s provider directory.

Q 25. Do OMH and OASAS maintain updated lists of providers with affiliations with facilities certified or authorized by OMH and OASAS that insurers can reference to meet the provider directory requirements imposed by the regulation?

OMH and OASAS do not maintain centralized or updated lists of individual behavioral health provider affiliations with OMH-certified or OASAS-certified or facilities. Insurers should work directly with their contracted behavioral health facilities and providers to maintain accurate and current information for their provider directories.

Q 26. Are OMH and OASAS able to provide information on restrictions on the availability of services from behavioral health providers that are certified or authorized by OMH and OASAS that insurers can reference to meet the provider directory requirements imposed by the regulation? 

OMH issues operating certificates to licensed facilities that include populations served (e.g., children, adolescents, and adults) and services provided. Licensed facilities may be able to provide copies of operating certificates to insurers upon request. Insurers can also reference the OMH Find a Program tool to identify OMH-licensed programs. The Advanced Search option allows filtering of licensed programs by populations served (e.g., children, adolescents, and adults) and whether additional services are offered.

Insurers can also reference the OASAS Provider and Program Search tool for an up-to-date list of OASAS-certified facilities.

Q 27. What is an access plan?

An access plan is an internal control document developed by an insurer that establishes a protocol for monitoring and ensuring access to behavioral health services. The access plan requirements are set forth in 11 NYCRR section 38.7(c).

Q 28. How should insurers monitor and ensure access to behavioral health services, including compliance with appointment wait time standards?

11 NYCRR section 38.7(c) states that insurers must have an access plan that establishes a protocol for monitoring and ensuring access to behavioral health services, outlines how provider capacity is determined, and establishes procedures for quarterly monitoring of capacity and access and for improving access and managing access in times of reduced participating provider capacity. Each insurer may choose its own methods to monitor appointment wait times that best address the specific needs of their covered population and service area as part of its access plan.

Insurers are encouraged to work with their providers to meet the behavioral health needs of their insureds, as well as to engage in recruiting efforts for additional providers as necessary. Insurers must ensure that their networks have adequate capacity and availability of health care providers of behavioral health services to offer insureds appointments with providers that can treat insureds’ behavioral health conditions and that are located a reasonable distance from the insured (if the insured wants an in-person appointment).

Q 29. Does displaying information such as race, ethnicity, gender, and languages spoken in the provider directory satisfy the requirement for insurers to have an access plan and monitoring protocol that addresses the ability of in-network behavioral health providers to meet the cultural and linguistic needs of insureds?

No. An insurer’s access plan must include a process to consider the cultural and linguistic needs of insureds and to evaluate whether the cultural and linguistic capabilities of network providers is sufficient, or whether the network should be improved to better meet the needs of insureds.

Q 30. Following a review of claims activity, if an insurer determines that an in-network behavioral health provider has not submitted a claim in the previous six months, what action must the insurer take?

An insurer must review claims activity every six months. If the insurer did not receive any claims from an in-network behavioral health provider within the six-month period, the insurer must contact the provider in order to confirm the provider’s participation status with the insurer and whether the provider is accepting new patients.

If a provider indicates that the provider is not accepting new patients, the insurer must update the provider directory to reflect that the provider is not accepting new patients. In addition, the insurer should not provide an insured with that provider’s information when assisting an insured in finding a participating provider in response to an access complaint.

If a provider indicates that the provider is no longer participating in the insurer’s network, then the insurer must remove the provider from the provider directory within fifteen days and take any other steps necessary to remove the provider from its network.

Q 31. The regulation requires insurers to annually report information to DFS on access complaints, including the geographic area where insureds requested services. What unit of geographic area must be reported?

Information on access complaints should be maintained and reported at the county level.