SENATE BILL 273, IMPLEMENTATION – SUBMISSION OF HEALTH INSURANCE POLICIES FOR COMPLIANCE REVIEW

STATE OF NEW MEXICO OFFICE OF SUPERINTENDENT OF INSURANCE SUPERINTENDENT OF INSURANCE DEPUTY SUPERINTENDENT Alice T. Kane Colin Baillio Main Office: 1120 Paseo de Peralta, Fourth Floor, Santa Fe, NM 87501 Satellite Office: 6200 Uptown Blvd NE, Suite 400, Albuquerque, NM 87110 Main Phone: (505) 827-4601 | Toll Free: (855) 4 - ASK - OSI www.osi.state.nm.us BULLETIN 2024-013 July 30, 2024 TO: ALL HEALTH CARE INSURERS AND PHARMACY BENEFITS MANAGERS LICENSED IN NEW MEXICO RE: SENATE BILL 273, IMPLEMENTATION – SUBMISSION OF HEALTH INSURANCE POLICIES FOR COMPLIANCE REVIEW Senate Bill 273, Parity for Coverage of Mental Health and Substance Use Disorder (MH/SUD) Services (SB273) was enacted in the 2023 New Mexico legislative session and became effective on January 1, 2024. SB273 amended certain sections of, and added other sections to, the New Mexico Insurance Code included in Chapter 59A, Articles 22B (Prior Authorization), 23 (Group and Blanket Health Insurance Contracts), 23E (Health Insurance Portability Act), 46 (Health Maintenance Organization Law), and 47 (Nonprofit Health Care Plan Law). The Office of Superintendent of Insurance (OSI), through its Life and Health Division, will enforce the provisions of SB273. Through its compliance review required by SB273, OSI will review claims processing, provider reimbursement procedures, network adequacy, provider reimbursement rate adequacy, utilization management, level of care determinations and medication coverage to ensure access to MH/SUD services and providers, including parity with medical and surgical services. Additionally, the OSI shall ensure that a health care plan complies with federal and state laws, rules and regulations applicable to coverage for MH/SUD services. The specific review criteria used by the OSI when conducting a compliance review required by SB273 will be provided on the OSI website. The following definitions will apply to the OSI compliance review of health insurance B U L L E T I N 2 0 2 4 - 0 1 3 P a g e | 2 Main Office: 1120 Paseo de Peralta, Fourth Floor, Santa Fe, NM 87501 Satellite Office: 6200 Uptown Blvd NE, Suite 400, Albuquerque, NM 87110 Main Phone: (505) 827-4601 | Toll Free: (855) 4 - ASK - OSI www.osi.state.nm.us policies falling under the categories of Group and Blanket Health Insurance Contracts, Health Maintenance Organization Law, and Nonprofit Health Care Plan Law: "Mental health or substance use disorder services" means: (1) professional services, including inpatient and outpatient services and prescription drugs, provided in accordance with generally recognized standards of care for the identification, prevention, treatment, minimization of progression, habilitation and rehabilitation of conditions or disorders listed in the current edition of the American psychiatric association's Diagnostic and Statistical Manual of Mental Disorders, including substance use disorder; or (2) professional talk therapy services, provided in accordance with generally recognized standards of care, provided by a marriage and family therapist licensed pursuant to the Counseling and Therapy Practice Act codified as Chapter 61, Article 9A NMSA 1978. "Generally recognized standards" means standards of care and clinical practice established by evidence-based sources, including clinical practice guidelines and recommendations from mental health and substance use disorder care provider professional associations and relevant federal government agencies, that are generally recognized by providers practicing in relevant clinical specialties, including: (1) psychiatry; (2) psychology; (3) social work; (4) clinical counseling; (5) addiction medicine and counseling; or (6) family and marriage counseling. OSI requires that “generally recognized standards” used in medical necessity determinations incorporate the most recent versions of clinical practice guidelines developed by nonprofit professional associations for the relevant clinical specialty. For coverage determinations concerning service intensity, level of care placement, continued stay, transfer, and discharge, OSI considers acceptable examples of the B U L L E T I N 2 0 2 4 - 0 1 3 P a g e | 3 Main Office: 1120 Paseo de Peralta, Fourth Floor, Santa Fe, NM 87501 Satellite Office: 6200 Uptown Blvd NE, Suite 400, Albuquerque, NM 87110 Main Phone: (505) 827-4601 | Toll Free: (855) 4 - ASK - OSI www.osi.state.nm.us most recent versions of the following nonprofit professional association guidelines compliant with SB273: • For a primary diagnosis of a substance use disorder in adolescents and adults, The ASAM Criteria developed by the American Society of Addiction Medicine. • For a primary diagnosis of a mental health condition in adults, the Level of Care Utilization System for Psychiatric and Addiction Services (LOCUS) developed by the American Association for Community Psychiatry (AACP). • For a primary diagnosis of a mental health condition in children ages 6-18, the Child and Adolescent Level of Care/Service Intensity Utilization System (CALOCUS-CASII) developed by AACP and the American Academy of Child & Adolescent Psychiatry (AACAP). • For a primary diagnosis of a mental health condition in children ages 5 and younger, the Early Childhood Service Intensity Instrument (ECSII) developed by AACAP. • For coverage determinations involving services for gender dysphoria, OSI considers use of the most recent version of the Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People developed by The World Professional Association for Transgender Health compliant with SB273. Pursuant to NMSA 1978 Sections 59A-18-12(A), and 59A-18-13, all health insurance or health care plans must be approved by the Superintendent. “Health insurance,” and “health care plan” are defined in Subsection E of NMSA 1978, Section 59A-18-12. Because each health care plan must notify insureds of their rights as established by the MH/SUD parity requirements in SB273, the Superintendent will not approve any health care plan affected by SB273, unless the following language is included in the health care plan: Mental Health and Substance Use Disorder Service Coverage B U L L E T I N 2 0 2 4 - 0 1 3 P a g e | 4 Main Office: 1120 Paseo de Peralta, Fourth Floor, Santa Fe, NM 87501 Satellite Office: 6200 Uptown Blvd NE, Suite 400, Albuquerque, NM 87110 Main Phone: (505) 827-4601 | Toll Free: (855) 4 - ASK - OSI www.osi.state.nm.us Your coverage complies with requirements under the federal Mental Health Parity and Addiction Equity Act, and with new sections of the New Mexico Insurance Code Chapter 59A, pursuant to Senate Bill 273, Parity for Coverage of Mental Health and Substance Use Disorder (MH/SUD) Services. For additional information on these requirements or if you feel your rights have been violated, you may contact the NM Office of Superintendent of Insurance using this link: https://www.osi.state.nm.us/ Your rights under these federal and state laws include: • Generally, coverage in this plan does not impose stricter limitations or financial requirements to MH/SUD coverage than the limitations or financial requirements that are imposed on medical and surgical benefits. • MH/SUD services that are offered must have treatment available in: psychiatry, psychology, social work, clinical counseling, addiction medicine counseling, and family and marriage counseling. These benefits are subject to network requirements, provider scope of practice and credentialing, and may be subject to medical necessity review. • Our authorization criteria must follow generally recognized standards of care established by evidence-based resources, including clinical practice guidelines and recommendations from MH/SUD care provider professional associations and relevant federal government agencies. • Federal and New Mexico law requires the plan not exclude coverage for MH/SUD services under the following circumstances: o Services that are available to you through federal or state laws for people with disabilities. o Services that are available to you through a public benefit program. o Services that have been court ordered and have been determined to be medically necessary by a provider. o Services for individuals who have co-occurring diagnoses of mental health and substance use disorders. • MH/SUD provider network – o We maintain an adequate network as required by New Mexico state-mandated network adequacy standards of qualified MH/SUD services providers. B U L L E T I N 2 0 2 4 - 0 1 3 P a g e | 5 Main Office: 1120 Paseo de Peralta, Fourth Floor, Santa Fe, NM 87501 Satellite Office: 6200 Uptown Blvd NE, Suite 400, Albuquerque, NM 87110 Main Phone: (505) 827-4601 | Toll Free: (855) 4 - ASK - OSI www.osi.state.nm.us o If the eligible services cannot be provided within our network, you will not have to pay extra for eligible services if similar services under your benefit plan are provided by an out-of-network provider. • Prior-authorization guidelines - o Certain types of services require prior-authorization by us. o Prior-authorization means that you or your provider must ask us to approve the care before you receive it. o Prior-authorization cannot be taken back or changed after the provider gives the services in good faith, except for cases of dishonesty, material misrepresentation, or violation of the provider's contract. o We are prohibited from ordering prior-authorization or referral for in-network service coverage for: acute or immediately necessary care, acute episodes of chronic MH/SUD conditions, initial in-network inpatient or outpatient SUD services. o Prior-authorization will be determined in discussion with your MH/SUD provider for continuation of services, unless your eligibility in the plan ends. o Coverage for medication must be made according to a medical need. o For SUD medications, we cannot require prior-authorization or “step-therapy” (such as making you take additional steps before paying for medication prescribed by your provider), unless there is a generic or a biosimilar (which means a biological medicine approved by the U.S. Food and Drug Administration or FDA that works in a similar way to its reference drug) equivalent. • After beginning in-network MH/SUD treatment, we may require your provider to notify us and/or develop and submit a treatment plan for continued treatment/services. • We cannot limit coverage for MH/SUD services up to the point of relief of presenting signs and symptoms or to short-term care or acute treatment. • Your length of time for treatment will be based on your provider’s recommendation and MH/SUD needs, which may be assessed in conjunction with accepted clinical practice guidelines and recommendations. • Level of care determinations: B U L L E T I N 2 0 2 4 - 0 1 3 P a g e | 6 Main Office: 1120 Paseo de Peralta, Fourth Floor, Santa Fe, NM 87501 Satellite Office: 6200 Uptown Blvd NE, Suite 400, Albuquerque, NM 87110 Main Phone: (505) 827-4601 | Toll Free: (855) 4 - ASK - OSI www.osi.state.nm.us o Level of care means the treatment setting or facility type that is most appropriate to treat your condition. o Your MH/SUD provider decides, in consultation with the health plan, what types of services you need and for how long, based on your diagnosis and generally recognized standards of care. o Services may include placement into a facility that provides detoxification services, a hospital, an in-patient rehabilitation treatment facility or outpatient treatment program. o Changes in level and length of time of care will be determined by your provider in consultation with the health plan and based on assessments of medical necessity using accepted clinical practice guidelines. • At your request, we will provide coordination of care which means we may help communication between your MH/SUD service provider and your primary care provider to prevent any conflicts of care that could be harmful to you. • We will make sure our MH/SUD policies are available to you. • We protect your confidentiality when receiving MH/SUD treatment. • We will not end coverage of your treatment without a discussion with your MH/SUD provider and you. • If your claim is denied due to lack of “medical necessity,” you have a right to request the specific reasons for your denial. OSI may issue targeted audits to ensure compliance with the requirements of SB273. All inquiries related to the content of this bulletin should be directed to Viara Ianakieva at Viara.Ianakieva@osi.nm.gov. ISSUED this 30th day of July 2024. __________________________________ ALICE T. KANE Superintendent of Insurance Compliance Review by Office of Superintendent of Insurance (Senate Bill 273, Parity for Coverage of Mental Health and Substance Use Disorder Services) Last Update: July 26, 2024 1 The insurance entities Senate Bill 273 applies to are listed below: • “Health insurer” as defined in Section 59A-22B-2(H) • “Group Health Plans” as defined in Section 59A-23-2(B) • “Blanket Health Insurance” as defined in Section 59A-23-2(A) • “Health Maintenance Organizations” as defined in 59A-46-2(O) • “Nonprofit health care plans” pursuant to Section 59A-47-2 Regulated Health Care Category Applies To Compliance Standards New or Amended Section in SB273 Prior Authorization – Rescinding or Modifying Health Insurers Cannot rescind or modify an authorization for mental health or substance use disorder services (SUD) already authorized, after the provider renders the services pursuant to a determination of medical necessity, in good faith, except for cases of fraud or violation of the provider’s contract with the health insurer. 59A-22B-6 Prior Authorization or referrals for innetwork services Health Insurers 1. A health insurer is prohibited from requiring prior authorization or referral for innetwork mental health or SUD services coverage for acute or immediately necessary care, acute episodes of chronic mental health or SUD conditions, initial in-network inpatient or outpatient SUD treatment services. 2. Prior authorization shall be determined in consultation with the insured’s mental health or SUD services provider for continuation of services in chronic or stable conditions or additional services, unless insured terminates the plan, a health insurer shall not terminate coverage of services without consultation with the insured’s mental health or SUD services provider. 3. A health insurer cannot limit coverage for mental health or SUD services up to the point of relief of presenting signs and symptoms to a short-term care or acute treatment. 4. The duration of coverage for an insured with a mental health or SUD shall be based on the mental health or SUD needs of the insured rather than on arbitrary time limits. 5. A health insurer may require: 59A-22B-7 Compliance Review by Office of Superintendent of Insurance (Senate Bill 273, Parity for Coverage of Mental Health and Substance Use Disorder Services) Last Update: July 26, 2024 2 a. a mental health or SUD services provider to provide notification to the health insurer after initiation of in-network mental health or SUD treatment begins, a failure to notify may result in the performance of an appropriate utilization review; or. b. a mental health or SUD services provider to develop and submit a treatment plan for an insured receiving in-network services in a manner that is compliant with federal law. Prior Authorization – Prescription drugs or steptherapy Health Insurers Prohibits health insurers from requiring prior authorization for prescription drugs or step therapy for certain conditions that include: 1. coverage for medication approved by the Federal Food and Drug Administration (FDA) that is prescribed for the treatment of an autoimmune disorder, cancer, or SUD pursuant to a medical necessity determination, except in cases in which a biosimilar, interchangeable biologic or generic version is available; and 2. no imposition of step therapy requirements by a health insurer before authorizing coverage for medication approved by the FDA that is prescribed for the treatment of an autoimmune disorder, cancer, or a SUD pursuant to a medical necessity determination except in cases where a biosimilar, interchangeable biologic or generic version is available. 59A-22B-8 Mental health and SUD services required Group Health Plans; Blanket Health Insurance Requires a plan/organization, (other than a small group health plan) that is delivered, issued for deliver or renewed in New Mexico to provide coverage for all mental health or SUD services required by generally recognized standards of care. 59A-23-23 59A-46-62; 59A-47-57 Parity for coverage Group Health Plans; Blanket Health Insurance; Health Maintenance Organizations; Nonprofit health care plans Requires parity for coverage of mental health or SUD services and requires the OSI ensure that an insurer complies with federal and state law, rules, and regulations applicable to coverage for mental health or SUD service. An Insurer/carrier/plan cannot: 1. impose quantitative treatment limitations, financial restrictions, limitations or requirements on the provision of mental health or SUD services that are more restrictive than the predominant restrictions, limitations or requirements that are imposed on substantially all of the coverage of benefits for other conditions; 2. impose non-quantitative treatment limitations for the treatment of mental health or SUDs or conditions unless factors (including the processes, strategies or evidentiary standards used in applying the non-quantitative treatment limitation) as 59A-23-24; 59A-46-63; 59A-47-58 Compliance Review by Office of Superintendent of Insurance (Senate Bill 273, Parity for Coverage of Mental Health and Substance Use Disorder Services) Last Update: July 26, 2024 3 written and in operation, and are comparable to and are applied no more restrictively than the factors used in applying the limitation with respect to medical or surgical benefits in the classification. Provider network adequacy Group Health Plans; Blanket Health Insurance; Health Maintenance Organizations; Nonprofit health care plans 1. Insurer/carrier/plans are required to maintain an adequate provider network to provide mental health and SUD services. 2. An Insurer/carrier/plans shall ensure that the process by which reimbursement rates for mental health and SUD services are determined is comparable to and no more stringent than the process for reimbursement of medical or surgical benefits. 3. In developing provider reimbursement rates, an Insurer/carrier/plan shall demonstrate that it has performed a comparability analysis of provider: a. reimbursement rates in surrounding states; b. reimbursement rates between mental health and SUD providers and medical or surgical providers; and c. credentialing processes for mental health and SUD providers and medical or surgical providers. 4. An insurer/carrier/plan shall undertake all efforts, including increasing provider reimbursement rates through the processes and strategies described in Subsection C of this section, to ensure state-mandated network adequacy for the provision of mental health or SUD services. 5. When in-network access to mental health or SUD services is not reasonably available, an insurer/carrier/plan shall provide access to out-of-network services with the same cost-sharing obligations to the insured as those required for innetwork services. 59A-23-25; 59A-46-64; 59A-47-59 Utilization review Group Health Plans; Blanket Health Insurance; Health Maintenance Organizations; Nonprofit health care plans Utilization review of mental health or SUD services: 1. An insurer/carrier/plan shall, at least monthly, review and update the insurer's utilization review process to reflect the most recent evidence and generally recognized standards of care. 2. When performing a utilization review of mental health or SUDs, including level of care placement, continued stay, transfer and discharge, an insurer shall apply criteria in accordance with generally recognized standards of care. 3. An insurer/carrier/plan shall provide utilization review training to staff and contractors undertaking activities related to utilization review. 4. An insurer/carrier/plan shall: 59A-23-26; 59A-46-65; 59A-47-60 Compliance Review by Office of Superintendent of Insurance (Senate Bill 273, Parity for Coverage of Mental Health and Substance Use Disorder Services) Last Update: July 26, 2024 4 a. develop utilization review policies regarding quantitative and non-quantitative limitations for mental health or SUD use disorder services coverage that are no more restrictive than the utilization review policies regarding quantitative and non-quantitative limitations for medical and surgical care; and b. make utilization review policies available to providers or plan members. Provider prescribed coverage inclusion Group Health Plans; Blanket Health Insurance; Health Maintenance Organizations; Nonprofit health care plans An insurer/carrier/plan shall not exclude provider prescribed coverage for mental health or SUD services otherwise included in its coverage when: 1. it is available pursuant to federal or state law for individuals with disabilities; 2. it is otherwise ordered by a court or administrative agency; 3. it is available to an insured through a public benefit program; or 4. an insured has a concurrent diagnosis. 59A-23-27; 59A-46-66; 59A-47-61 Level of care determinations Group Health Plans; Blanket Health Insurance; Health Maintenance Organizations; Nonprofit health care plans Level of care determinations: 1. An insurer/carrier/plan shall provide coverage for all in-network mental health or SUD services, consistent with generally recognized standards of care, including placing an insured into a medically necessary level of care. 2. Changes in level and duration of care shall be determined by the insured's provider in consultation with the insurer. 3. Level of care determinations shall include placement of an insured into a facility that provides detoxification services, a hospital, an inpatient rehabilitation treatment facility or an outpatient treatment program. 4. Level of care services for an insured with a mental health or SUD shall be based on the mental health or SUD needs of the insured rather than arbitrary time limits. 59A-23-28; 59A-46-67; 59A-47-62 Coordination of care Group Health Plans; Blanket Health Insurance; Health Maintenance Organizations; Nonprofit health care plans Coordination of care: At the request of an insured, an insurer may facilitate communication between mental health or SUD services providers and the insured's designated primary care provider to ensure coordination of care to prevent any conflicts of care that could be harmful to the insured. 59A-23-29; 59A-46-68; 59A-47-63 Compliance Review by Office of Superintendent of Insurance (Senate Bill 273, Parity for Coverage of Mental Health and Substance Use Disorder Services) Last Update: July 26, 2024 5 Confidentiality Group Health Plans; Blanket Health Insurance; Health Maintenance Organizations; Nonprofit health care plans An insurer shall protect the confidentiality of an insured receiving mental health or SUD services. 59A-23-30; 59A-46-69; 59A-47-64 Exceptions Group Health Plans; Blanket Health Insurance; Health Maintenance Organizations; Nonprofit health care plans The provisions of 59A-23-22 to 59A-23-30 do not apply to short-term plans subject to the Short-Term Health Plan and Excepted Benefit Act in Chapter 59A, Article 23G NMSA 1978. 59A-23-31; 59A-46-70; 59A-47-65 Health Insurance Portability Group health insurance policies or health care plans or certificates of health insurance, other than small group health plans that are delivered, issued for delivery or renewed in New Mexico on or after January 1, 2024. Requirement for mental health benefits in an individual or group health plan, or group health insurance offered in connection with the plan, for a plan year of an employer: 1. A group health plan or group or individual health insurance shall not impose treatment limitations or financial restrictions, limitations or requirements on the provision of mental health benefits that are more restrictive than the predominant restrictions, limitations or requirements that are imposed on coverage of benefits for other conditions. 2. As used in this section, "mental health benefits" means mental health benefits as described in the group health plan or group health insurance offered in connection with the plan. 59A-23E-18