Memorandum in Opposition

For Immediate Release:  May 18, 2021

Re: A.3276 (Gunther )/S.5909 (Kaminsky) — AN ACT to amend the insurance law, in relation to prohibiting the application of fail-first or step therapy protocols  to  coverage  for  the diagnosis and treatment of mental health conditions

The New York Health Plan Association opposes this legislation, A.3276 /S.5909, which prohibits the application of step therapy protocols to diagnosis and treatment of mental health conditions.


While step therapy protocols apply to prescription drugs – as reflected in the definition in section 4900 of the insurance law – the language in this bill appears to inappropriately apply the prohibition to all mental health services, which extends beyond the statutory definition of step therapy.

Plans use step therapy protocols not simply to reduce costs, but also to assure use of the safest, most effective – and cost effective – medication.  Step therapy protocols usually start with the medication that has been available for the longest period of time, with known risks and outcomes, before moving on to newer, and riskier or experimental drugs.  Prohibiting step therapy increases risks to patients, and limits plans’ ability to negotiate better prices for newer and experimental treatment drugs, increasing costs for everyone.

In addition, Chapter 512 of the Laws of 2016 established strict requirements around step therapy protocols, providing additional protections for patients using step therapy protocols and creating an improved process for timely appeals and overrides of such protocols.  Plans are required to use evidence-based and peer-reviewed clinical criteria that also takes into account the needs of atypical patient populations when establishing step therapy protocols.  The law also provides a standardized appeals process to request an override determination where a prescriber does not believe the drug is in the best interest of the patient.  The process allows for an override where the prescriber demonstrates that the drug is likely to be ineffective based on the patient’s clinical history, or has been tried by the patient already and been ineffective, along with other reasons.  Contrary to the sponsor’s memo, which indicates that patients “wait months for approval to switch” medications, current statute requires responses to override requests within 72 hours, or 24 hours in the case of an emergency.  Upon determination that an override should be granted, plans must authorize immediate coverage for the prescription drug prescribed by the provider.  Existing statute makes this bill unnecessary.

Moreover, the state’s existing mental health parity statute assures that treatment for behavioral health conditions cannot be more restrictive than they are for medical treatments.  New York has one of the strongest parity oversight programs in the country, also making this legislation unnecessary.

Finally, plans share the sponsors concerns regarding the mental health impact of COVID-19 on New Yorkers – especially the most vulnerable – and have worked diligently to assure access to behavioral health treatment as the pandemic unfolded – and will continue to do so, as the behavioral health effects of COVID linger.

For all these reasons, we OPPOSE  A.3276 /S.5909.