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Questions and Answers on Opioid Legislation (Chapters 69 and 71 of the Laws of 2016)

Information for Health Insurers

Opioid Legislation – Applicability

Q.1 Do Insurance Law §§3216(i)(30)(D), 3221(l)(6)(D) and 4303(k)(4) apply to detoxification admissions?

Answer: Insurance Law §§ 3216(i)(30)(D), 3221(l)(6)(D) and 4303(k)(4) apply to all inpatient admissions for the diagnosis and treatment of substance use disorder, including detoxification and rehabilitation services, as well as treatment in a residential setting.

Q.2 Do the Insurance Law §§ 3216(i)(31-a), 3221(l)(7-b) and 4303(l-2) requirements for coverage of an emergency supply of medication for a substance use disorder without preauthorization and the Insurance Law §§ 3221(l)(7-a) and 4303(l-1) requirements for coverage for medication for the detoxification or maintenance treatment of a substance use disorder under large group policies and contracts apply to over-the-counter medication?

Answer: Generally, over-the-counter medication for a substance use disorder is only required to be covered when over-the-counter medication is otherwise covered under the policy or contract. However, naloxone should be covered over-the-counter, even when over-the-counter medication is not otherwise covered under the policy or contract.

With respect to individual and small group policies and contracts, naloxone is currently required to be covered as an essential health benefit (EHB) (regardless of whether it is available over-the-counter in some pharmacies) because it is the only drug in its United States Pharmacopeia category and class. See 45 C.F.R. § 156.122(a)(1) which states that a health insurance policy or contract providing coverage in the individual or small group market would not be considered to be providing EHB unless it covers at least the greater of at least one drug in every United States Pharmacopeia category and class or the same number of prescription drugs in each category and class as the EHB-benchmark plan. However, health plans may require that an insured obtain a prescription for naloxone in order to obtain coverage.

With respect to large group policies and contracts, Insurance Law §§ 3221(7-a) and 4303(l-1) require policies and contracts that provide medical, major medical or similar comprehensive-type coverage to provide coverage for medication for the detoxification or maintenance treatment of a substance use disorder when issued, renewed, modified, altered or amended on or after January 1, 2017. This coverage is not limited to prescribed medications, and therefore includes naloxone, regardless of whether the insured obtains a prescription. However, if prior authorization is required under the large group policy or contract, and an insured would like an emergency supply of naloxone without having to obtain prior authorization, the health plan may require that the insured obtain a prescription in order for the emergency supply of naloxone to be covered without prior authorization pursuant to Insurance Law §§ 3221(l)(7-b) and 4303(l-2).


Opioid Legislation – Utilization Review of Inpatient Substance Use Disorder Treatment

Q.3 Do the amendments to Insurance Law §§ 3216(i)(30), 3221(l)(6)(A), and 4303(k)(1) permit health plans to impose utilization review requirements on inpatient and residential substance use disorder treatment as along as the processes, strategies, evidentiary standards, or other factors used in applying a non-quantitative treatment limitation to mental health or substance use disorder benefits in a classification are comparable to, and applied no more stringently than, the processes, strategies, evidentiary standards, or other factors used in applying the limitation with respect to inpatient medical surgical/benefits?

Answer: Subject to the limitations on utilization review during the first 14 days of an inpatient admission described in Insurance Law §§3216(i)(30)(D), 3221(l)(6)(D) and 4303(k)(4), health plans are permitted to impose utilization review requirements on inpatient and residential substance use disorder treatment as long as they are compliant with the Mental Health Parity and Addiction Equity Act (MHPAEA).

Q.4 Do the limitations on utilization review during the first 14 days of an inpatient admission described in Insurance Law §§ 3216(i)(30)(D), 3221(l)(6)(D) and 4303(k)(4) apply to immediate readmissions following discharge?

Answer: Once the patient is discharged following an inpatient admission, any subsequent admission, including an immediate readmission, is subject to the limitations on utilization review during the first 14 days of the inpatient admission as described in Insurance Law §§ 3216(i)(30)(D), 3221(l)(6)(D) and 4303(k)(4). In sum, the subsequent admission restarts the 14-day clock.

Q.5 Does the 14 day count for the limitation on utilization review include transfers from one inpatient facility to another or does each inpatient facility have its own 14 day count?

Answer: Each admission to a facility has its own 14 day count, even if a patient is transitioning between levels of care in the same facility (e.g. moving from detoxification to rehabilitation).

Q.6 If an inpatient or residential facility fails to provide a health plan with notice of an admission and a treatment plan pursuant to Insurance Law §§ 3216(i)(30)(D), 3221(l)(6)(D) or 4303(k)(4) within 48 hours of admission, can the health plan begin concurrent review of services immediately upon learning of the admission, even if it is during the initial 14 day period? Also, may the health plan retrospectively deny any care provided prior to learning of the admission?

Answer: If the inpatient or residential facility fails to notify the health plan of either the inpatient admission or the initial treatment plan within 48 hours of the admission, the health plan may begin concurrent review immediately upon learning of the admission, even if it is during the initial 14 day period. A health plan may also perform a retrospective review of the treatment provided during the initial 14 day period.

Q.7 Is retrospective utilization review permitted under Insurance Law §§ 3216(i)(30)(D), 3221(l)(6)(D) and 4303(k)(4)?

Answer: Yes. Health plans may perform utilization review of the inpatient treatment after the 14th day of the inpatient admission and the utilization review may include a review of services provided during the first 14 days of the inpatient treatment. These provisions of the Insurance Law further provide that health plans may only deny coverage for any portion of the initial 14 day inpatient treatment on the basis that the treatment was not medically necessary if such treatment was contrary to the evidence-based and peer reviewed clinical review tool utilized by the health plan and designated by OASAS.

Q.8 Are health plans required to cover days 1 – 14 of an inpatient admission pursuant to Insurance Law §§ 3216(i)(30)(D), 3221(l)(6)(D) and 4303(k)(4) if they subsequently determine that some or all of days 1-14 were not medically necessary?

Answer. No. Health plans may subsequently issue a medical necessity denial if such treatment was contrary to the evidence-based and peer reviewed clinical review tool utilized by the health plan and designated by OASAS.

Q.9 If a health plan denies an inpatient admission in whole or in part pursuant to Insurance Law §§ 3216(i)(30)(D), 3221(l)(6)(D) and 4303(k)(4) does the insured have a financial obligation to the facility other than any copayment, coinsurance or deductible?

Answer. No. Insurance Law §§ 3216(i)(30)(D), 3221(l)(6)(D) and 4303(k)(4) provide that an insured shall not have any financial obligation to the facility for treatment other than any copayment, coinsurance or deductible otherwise required under the policy or contract.

Q.10 Do the provisions in Insurance Law §§ 3216(i)(30)(D), 3221(l)(6)(D) and 4303(k)(4) apply to all inpatient facilities?

Answer. No. Insurance Law §§ 3216(i)(30)(D), 3221(l)(6)(D) and 4303(k)(4) apply to facilities in the state that are certified by the Office of Alcoholism and Substance Abuse Services and that are participating in the health plan’s provider network.


Opioid Legislation – Emergency Supply of a Medication

Q.11 Is retrospective utilization review permitted under Insurance Law §§ 3216(i)(31-a), 3221(l)(7-b) and 4303(l-2)?

Answer: Insurance Law §§ 3216(i)(31-a), 3221(l)(7-b) and 4303(l-2) prohibit health plans from imposing prior authorization requirements on up to a 5-day emergency supply of prescribed medications covered under the policy or contract for the treatment of a substance use disorder where an emergency condition exists. An emergency supply must also be covered for medication for opioid overdose reversal otherwise covered under the policy or contract prescribed to an individual covered under the policy or contract. Health plans may perform a retrospective review to determine if an emergency condition, as defined in the law, existed in the same manner as they are permitted to review other medical emergencies.

Q.12 What is the definition of an emergency condition with respect to the requirement for coverage of an emergency supply of medication for a substance use disorder under Insurance Law §§ 3216(i)(31-a), 3221(l)(7-b) and 4303(l-2)?

Answer: Emergency condition is specifically defined in Insurance Law §§ 3216(i)(31-a)(B), 3221(l)(7-b)(B) and 4303(l-2)(2).

Q.13 Can health plans limit the number of times they will cover an emergency supply of medication for a substance use disorder under Insurance Law §§ 3216(i)(31-a), 3221(l)(7-b) and 4303(l-2)?

Answer: Health plans may review to determine if an emergency condition, as defined in the law, existed in the same manner as they are permitted to review other medical emergencies. If the insured has an emergency condition, health plans may not limit the number of emergencies they will cover.


Opioid Legislation – Cost-Sharing

Q.14 What are a health plan’s options for charging a copayment for a limited initial seven-day supply of a schedule II, III or IV opioid drug under Insurance Law §§ 3216(i)(33), 3221(k)(21) and 4303(qq)?

Answer: Health plans may either charge (1) a copayment that is prorated based on the amount of the drug dispensed, provided that the prorated copayment(s) may not total more than the insured’s copayment for a 30-day supply or (2) the copayment for a full 30-day supply provided that no additional copayments may be charged for any additional prescriptions of the drug for the remainder of the 30-day supply.

Q.15 Under Insurance Law §§ 3216(i)(33), 3221(k)(21) and 4303(qq), if an insured obtains an initial 7-day fill of a schedule II, III or IV opioid drug, and the health plan charged a copayment that was proportional to the supply dispensed, and the insured then fills a prescription for a 30-day supply of the drug within 30 days of the 7-day fill, how would the copayment for the 30-day supply be applied?

Answer. If a health plan charged a copayment that was proportional for the initial 7-day supply, a pro-rated copayment may be imposed on the remaining 23 days and on the additional 7 days. For example, assuming a $30 copayment for a 30-day supply, the insured would pay $7 for the initial limited 7-day supply. If the insured then obtains and fills a prescription for a 30-day supply (within 30 days following the 7-day fill) the insured would pay $23 for the remaining 23-day supply and $7 for the additional 7 days covered by the 30-day script.

Q.16 Under Insurance Law §§ 3216(i)(33), 3221(k)(21) and 4303(qq), if an insured obtains an initial 7-day fill of a schedule II, III or IV opioid drug, and the health plan charged a copayment for a full 30-day supply, and the insured then fills a prescription for a 30-day supply of the drug within 30 days of the 7-day fill, how would the copayment for the 30-day supply be applied? Assume that the copayment is $30 for a 30-day supply.

Answer: The health plan would not be able to collect an additional copayment for 23 days of the 30-day fill. The health plan could collect a $7 copayment to cover the portion of the prescription fill that exceeds the remainder of the initial 30-day fill.

Q. 17 If an insured obtains an initial 7-day fill of a schedule II, III or IV opioid drug, and then fills a prescription for a 30-day supply of the drug within 30 days after the 7-day fill, but at a different pharmacy than the 7-day fill, would the above copayment prorating be applicable since the 30-day prescription was filled at a different pharmacy?

Answer: Yes, the prorating would be applicable regardless of whether the prescription was filled at the same pharmacy or a different pharmacy.

Q.18 If an insured obtains an initial 7-day fill of a schedule II, III or IV opioid drug, and then fills a prescription for a 30-day supply of the drug more than 30 days after the 7-day fill, what copayment may be charged? Assume that the copayment is $30 for a 30-day supply.

Answer: The health plan may charge the $30 copayment. There would be no pro-rating because the prescription was filled more than 30 days after the 7-day fill.

Q.19 What are a health plan’s options for charging a copayment for a 5-day emergency supply of a medication for the treatment of substance use disorder where an emergency condition exists, including a prescribed drug associated with opioid withdrawal or stabilization under Insurance Law §§ 3216(i)(31-a), 3221(l)(7-b) and 4303(l-2)?

Answer: Health plans may either charge (1) a copayment that is prorated based on the amount of the drug dispensed, provided that the prorated copayment(s) may not total more than the insured’s copayment for a 30-day supply or (2) the copayment for a full 30-day supply provided that no additional copayments may be charged for any additional prescriptions of the drug for the remainder of the 30-day supply.

Q.20 Under Insurance Law §§ 3216(i)(31-a), 3221(l)(7-b) and 4303(l-2), if an insured obtains an initial 5-day emergency supply of a medication for the treatment of a substance use disorder where an emergency condition exists, and the health plan charged a copayment that was proportional to the supply dispensed, and the insured then fills a prescription for a 30-day supply of the drug within 30 days of the 5-day fill, how would the copayment for the 30-day supply be applied?

Answer. If a health plan charged a copayment that was proportional for the initial 5-day supply, a pro-rated copayment may be imposed on the remaining 25 days and on the additional 5 days. For example, assuming a $30 copayment for a 30-day supply, the insured would pay $5 for the initial 5-day emergency supply. If the insured then obtains and fills a prescription for a 30-day supply (within 30 days following the 5-day fill) the insured would pay $25 for the remaining 25-day supply and $5 for the additional 5 days covered by the 30-day script.

Q.21 Under Insurance Law §§ 3216(i)(31-a), 3221(l)(7-b) and 4303(l-2), if an insured obtains an initial 5-day emergency supply of a medication for the treatment of a substance use disorder where an emergency condition exists, and the health plan charged a copayment for a full 30-day supply, and the insured then fills a prescription for a 30-day supply of the drug within 30 days of the 5-day fill, how would the copayment for the 30-day supply be applied? Assume that the copayment is $30 for a 30-day supply.

Answer: The health plan would not be able to collect an additional copayment for 25 days of the 30-day fill. The health plan could collect a $5 copayment to cover the portion of the prescription fill that exceeds the remainder of the initial 30-day fill.

Q. 22 If an insured obtains a 5-day emergency supply of a medication for the treatment of a substance use disorder where an emergency condition exists, and then fills a prescription for a 30-day supply of the drug within 30 days after the 5-day fill, but at a different pharmacy than the 5-day fill, would the above copayment prorating be applicable since the 30-day prescription was filled at a different pharmacy?

Answer: Yes, the prorating would be applicable regardless of whether the prescription was filled at the same pharmacy or a different pharmacy.

Q.23 If an insured obtains an initial 5-day emergency supply of a medication for the treatment of substance use disorder where an emergency condition exists, and then the insured fills a prescription for a 30-day supply of the drug more than 30 days after the 5-day fill, what copayment may be charged? Assume that the copayment is $30 for a 30 day supply.

Answer: The health plan may charge the $30 copayment. The plan would not have to pro-rate the copayment because the prescription was filled more than 30 days after the 5-day fill.

Q.24 If a large group policy or contract does not include coverage for prescription drugs, are there restrictions on the cost-sharing that can be imposed on medications for detoxification or maintenance treatment of a substance use disorder under Insurance Law §§ 3221(7-a) and 4303(l-1)?

Answer: Insurance Law §§ 3221(l)(7-a) and 4303(l-1) do not address cost-sharing for medication for the detoxification or maintenance treatment of a substance use disorder. Health plans can impose cost-sharing amounts that comply with DFS coverage guidelines designed to ensure a substantial economic benefit to the insured, consistent with Insurance Regulation 62, (e.g., no greater than 50% coinsurance liability on the part of the insured) and that comply with federal Mental Health Parity requirements in 29 U.S.C. § 1185a.


Opioid Legislation – General Questions

Q.25 If a large group policy does not include coverage for prescription drugs, can a health plan use a formulary to specify the medications it will cover for detoxification or maintenance treatment of a substance use disorder under Insurance Law §§ 3221(l)(7-a) and 4303(l-1)?

Answer: Yes, health plans can use formularies and medical management policies for coverage of detoxification or maintenance treatment of substance use disorder under Insurance Law §§ 3221(l)(7-a) and 4303(l-1) that comply with federal Mental Health Parity requirements in 29 U.S.C. § 1185a.

Q.26 Insurance Law §§ 3216(i)(30)(D), 3221(l)(6)(D) and 4303(k)(4) require facilities that are certified by OASAS and participate in a health plan’s network to, with respect to an inpatient admission for treatment of substance use disorder, perform daily clinical review of the patient, including the periodic consultation with the health plan to ensure that the facility is using the evidence-based and peer reviewed clinical review tool utilized by the health plan which is designated by OASAS and appropriate to the age of the patient, to ensure that the inpatient treatment is medically necessary for the patient. How will the provider community be made aware of this requirement?

Answer: Health plans should notify their participating providers of this utilization review requirement as they would for any other change in their policies and procedures. The Department of Financial Services (DFS) will be providing guidance on its website. Health plans should also directly contact OASAS.

Q.27 Does DFS have a count of the total universe of individuals the opioid legislation would (or could potentially) impact?

Answer: DFS does not have a count of or an estimate of the total universe of individuals the opioid legislation would impact.

Q.28 What is the State’s vision for Value Based Purchasing schemes to fund substance use disorder treatment?

Answer: N/A at this time.

Q.29 How will the State be monitoring the impact of the opioid legislation (e.g. readmission rates and engagement in outpatient services)? Will there be increases in the health plans’ premiums to defray increased costs if there is not an offset in the readmission rate?

Answer: As with all services, DFS will monitor costs and looks forward to dialogue with plans about their experience and how it may impact future rates.


Updated 10/12/2016

 

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