Memorandum in Opposition
For Immediate Release:  February 9, 2024

Re: S.2917 (Cleare)/A.2516 (Paulin) — AN ACT to amend the public health law, in relation to allowing a notice of dense breast tissue to be considered a determination of medical necessity for coverage of a breast ultrasound

This legislation, S.2917/A.2516, would require health plans to cover breast ultrasounds based on an individual receiving a “notice of dense breast tissue,” which would be deemed a determination of medical necessity. New York’s health plans support early detection and early treatment of breast cancer — and all cancers. While this bill is well intended, the New York Health Plan Association (HPA) opposes the legislation for several reasons.

Health plans support appropriate use of mammography as a method of detecting breast cancer, and plans cover a variety of mammography methods. However, plans support and promote the use of evidence-based, best practices as it relates to cancer screenings, and develop coverage criteria of which modalities are “medically necessary” based on these best practices.

The United States Preventive Services Task Force, an independent, volunteer panel of national experts in disease prevention and evidence-based medicine, is widely recognized for its efforts to develop evidence-based recommendations about clinical preventive services. When questions arise as to coverage of a particular preventive screening, the Affordable Care Act determined only those receiving a rating of “A” or “B” in the current recommendations of the USPSTF should be required. Breast ultrasounds do not meet this standard. According to its latest recommendations for breast cancer screening, “[t]he USPSTF found insufficient evidence to assess the balance of benefits and harms of adjunctive screening for breast cancer using breast ultrasonography, MRI, DBT, or other methods in women identified to have dense breasts on an otherwise negative screening mammogram.”[1]  This bill would create a new, unsupported definition of medical necessity and, in effect, would override the recommendations of the USPSTF. It is worth noting that the USPSTF recommendation is currently under review. Pending an update, we believe the state should not be requiring coverage inconsistent with nationally recognized guidelines.

HPA also opposes the bill because it creates a new mandated benefit. In general, HPA opposes mandates because they increase the cost of coverage for consumers and employers, ultimately undermining affordability and leading to some people becoming uninsured. The cost of new mandates disproportionately falls on small businesses, as expanding existing mandated benefits exacerbates the challenge they face to find affordable health care options.

Mandated benefit bills pertain only to fully-insured policies, which are purchased either by individuals who purchase coverage on their own or receive it through a small or medium-sized business. Large companies typically “self-insure,” providing employee health benefits by directly paying health care claims to providers. They are governed by the federal Employee Retirement Income Security Act (ERISA) and are not subject to state mandated benefits. This exemption from state mandated benefits is a key reason that large employers typically self-insure. Today, roughly 50 percent of the commercial market in New York is covered under a self-insured plan. As more employers self-insure, state laws mandating specific types of benefits and services, or expanding existing mandates as this bill would, affect an increasingly smaller portion of the privately insured marketplace and fall largely on small and medium-sized employers.

Health plans must be able to set criteria based on evidence and unique circumstance of the patient to determine the best screening modality. In addition, mandating coverage benefits that will increase the cost of health insurance for individuals and employers conflicts with New York’s efforts to ensure every resident has access to high quality, affordable health care.

For these reasons, HPA opposes S.2917/A.2516.