BILL NUMBER: S2282
SPONSOR: CLEARE
 
TITLE OF BILL:
An act to amend the insurance law, in relation to prohibiting the appli-
cation of fail-first or step therapy protocols to coverage for the diag-
nosis and treatment of mental health conditions
 
PURPOSE:
This bill would prohibit the application of fail-first or step therapy
protocols to coverage for the diagnosis and treatment of mental health
conditions.
 
SUMMARY OF SPECIFIC PROVISIONS:
Section one would amend subsection (i) of section 3216 of the insurance
law to prohibit the application of any fail-first or step therapy proto-
col to mental health benefits, including drug coverage, provided by
individual accident and health insurance policies.
Section two would amend subsection (1) of section 3221 of the insurance
law to prohibit the application of any fail-first or step therapy proto-
col to mental health benefits, including drug coverage, provided by
group or blanket accident and health insurance policies.
Section three would amend subsection (g) of section 4303 of the insur-
ance law to prohibit the application of any fail-first or step therapy
protocol to mental health benefits, including drug coverage, provided by
non-profit medical and dental indemnity policies.
Section four provides that the bill would take effect immediately and
apply to any policies established or renewed on or after such date.
 
JUSTIFICATION:
"Fail-first" or "step therapy" protocols imposed by insurers obligate
patients to try a less costly treatment than what might be prescribed by
their provider, and "fail first" with that before the insurer will cover
the more costly treatment. In practice, this often requires patients to
take medications that they have tried previously without success, to
wait months for approval to switch to another option after failing with
a given drug, or to suffer adverse effects from a drug they had not
wanted to take. There is only mixed evidence in published studies on the
impact of step therapy policies, and some have found that, contrary to
their intent, such policies actually increase total utilization costs
over the long run because of increased inpatient admissions and emergen-
cy department visits. Such policies are particularly dangerous in the
mental health space, where they can be associated with a higher risk of
discontinuity in medication use, and increased likelihood of homeless-
ness and incarceration. Such policies likely contribute to the current
mental health crisis, which has been marked by an increase in the
reporting of mental health issues, even prior to COVID19.
And the COVID-19 pandemic is making the existing mental health crisis
worse. A Kaiser Family Foundation survey from August 2020 showed the
average share of adults reporting depression or anxiety rose to 40% in
July 2020. Further, a study in the Journal of the American Medical Asso-
ciation (JAMA), showed 15% of U.S. adults reported symptoms of "serious
psychological distress," in April 2020, compared to just 4% who reported
similar symptoms in April 2018. Symptoms of psychological distress were
highest among young adults, people with low incomes and people of color.
As the COVID-19 pandemic moves to the next stage, the health care system
may face a sort of "fourth wave" of behavioral health problems. Experts
are warning mental health issues and substance use disorders are becom-
ing more challenging for people who already have these conditions, and
may lead to new mental health and substance use issues in the general
population.
Recognizing the importance of access to care in response to the Covid-19
pandemic, 40 state Medicaid programs allowed early refills for medica-
tions and 30 waived or extended prior authorization requirements,
including New York State. Many health plans also reduced barriers to
care, either voluntarily or at the direction of state policymakers. It
is imperative that these measures continue, as the mental health impacts
of COVID-19 will linger long after the end of the pandemic.
 
LEGISLATIVE HISTORY:
2021: New bill
 
FISCAL IMPLICATIONS:
None to the state.
 
EFFECTIVE DATE:
The bill would take effect immediately and apply to any policies