NYDFS Issues Circular Letters Pertaining to Coverage for Women’s Health Issues

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In the last four months, the New York State Department of Financial Services (NYDFS) has issued three letters relating to coverage issues associated with women’s health. First, on April 25, 2016, NYDFS issued Insurance Circular Letter No. 1 (2016) to remind insurers that federal law “requires group health plans and issuers offering group or individual health insurance coverage to provide, with no copayment, coinsurance or deductible, preventive services that have a rating of ‘A’ or ‘B’ in the current recommendations of the United States Preventive Services Taskforce (USPSTF).” As of January 2016, the USPSTF B rating list specifically recommends screening for “depression in pregnant and postpartum women.”

Circular Letter 1 also cites Insurance Law §§ 3217-g and 4306-f and Public Health Law § 4406-f which require that:

[T]o the extent a policy provides coverage for maternal depression (as defined in Public Health Law § 2500-k), an insured is entitled to direct access for maternal depression screening and referral for maternal depression treatment by an OB/GYN or pediatrician of her choice. The insured’s access to the services, coverage and choice of provider is otherwise subject to the terms and conditions of the policy under which the insured is covered. The law is effective for all policies issued, renewed, modified, altered, amended or delivered on or after January 1, 2015.

Furthermore, “[t]reatment for maternal depression must also be provided in accordance with existing law,” specifically the Mental Health Parity and Addiction Act of 2008 (MHPAEA) which “requires that mental health services have parity in insurance coverage.” Parties are advised to consult Insurance Circular Letter No. 5 (2014) for additional information and guidance about compliance with the MHPAEA.

Next, on July 8, 2016, NYDFS issued Insurance Circular Letter No. 2 (2016) (Circular Letter 2). This letter provides guidance with respect to new laws passed in 2016 dealing with “health insurance coverage of preventative care and treatment for breast cancer” for “all policies and contracts issued, renewed, modified or amended on or after January 1, 2017.” This includes coverage for Mammography Screenings, Screening and Diagnostic Imaging, Genetic Screening and Medications, and Breast Cancer Treatment and Breast Reconstruction.

Finally, on July 11, 2016, NYDFS issued Insurance Circular Letter No. 3 (2016) to advise all life and disability insurers of statutory obligations with respect to underwriting for maternal depression. NYDFS reminded insurers that Insurance Law § 2608 prohibits insurers “from refusing to issue or renew or from cancelling any insurance policy because of any past treatment for a mental disability of the insured” which they specifically note includes maternal depression. However, “[a]n issuer may refuse to issue, renew or cancel a policy if the issuer relies on sound underwriting and actuarial principles reasonably related to actual or anticipated loss experience.”

Similarly, “Insurance Law § 4224(a)(1) and (b)(2) prohibit issuers from refusing to insure or continue to insure, limiting the amount, extent or kind of coverage, or charging a different rate for the same coverage solely because of the physical or mental disability, impairment or disease, or prior history of the disability or disease of an insured or potential insured.” However, again, an exception exists “where the refusal, limitation or rate differential is permitted by law or regulation and is based on sound actuarial principles or is related to actual or reasonably anticipated experience.”