Memorandum in Opposition

For Immediate Release:  May 16, 2023

Re: A.463 (McDonald)/S.2677 (Breslin) — AN ACT to amend the insurance law and the public health law, in relation to requiring notice of step therapy determinations

The New York Health Plan Association opposes this legislation, A.463/S.2677, which would require plans to have a written procedure for notice of an adverse determination to a step therapy override.  Specifically, the bill would require that the notice include the reasons for the determination, how to request a standard or expedited appeal, and applicable alternative coverage and clinical criteria used to make the determination.  The bill is unnecessary as reporting and notice requirements currently exist to protect consumers.  This enables them to make informed decisions about their care and coverage options and provides an efficient mechanism to request appeals of step therapy decisions.

For example, health plans already must provide notice to members on how to file an internal or external appeal, including for step therapy determinations.  Under existing New York law, any time a plan issues a determination, the plan must provide the consumer written notification of the decision, including the clinical rationale, instructions on how to initiate standard and expedited appeals or an external appeal and provide the application, as well as notice of the availability, upon request, of the clinical review criteria relied upon to make the determination. (See Insurance Law §4902(a).)

Further, health plans must provide information on the clinical basis for making a determination. Specifically, Insurance Law §§ 3217-a(b)(10), 4324(b)(10), 4902(a) and Public Health Law § 4408(2)(j) and 4902(1) require health plans, upon written request, to provide an insured or prospective insured specific written clinical review criteria relating to a particular condition or disease including clinical review criteria relating to a step therapy protocol override determination (emphasis added) and, where appropriate, other clinical information which the health plan might consider in its utilization review.

Finally, New York existing law already provides consumers the right to appeal step therapy protocol override determinations.  According to the DFS External Appeals database — which is publicly available and searchable — there have been just 32 step therapy appeals over the last five (5) years, including 19 appeals upholding health plan decisions and 13 overturning them.  This points to a system that is working to protect consumers and that requiring a separate process just for step therapy is unnecessary.

For all these reasons, we OPPOSE A.463/S.2677.