Regulatory Impact Statement for new 11 NYCRR 440 (Insurance Regulation 201)
1. Statutory authority: Financial Services Law sections 202 and 302, Insurance Law sections 301, 1109, 3216, 3221, and 4303, and Public Health Law section 4406.
Section 301 of the Insurance Law and sections 202 and 302 of the Financial Services Law authorize the Superintendent of Financial Services (the "Superintendent") to prescribe regulations interpreting the provisions of the Insurance Law and to effectuate any power granted to the Superintendent under the Insurance Law.
Insurance Law section 1109 authorizes the Superintendent to promulgate regulations to effectuate the purposes and provisions of the Insurance Law and Article 44 of the Public Health Law with respect to contracts between a health maintenance organization ("HMO") and its subscribers.
Insurance Law section 3216 establishes requirements for individual accident and health insurance policies and sets forth the benefits that must be covered under such contracts.
Insurance Law section 3221 establishes requirements and standard provisions for group or blanket accident and health insurance policies and sets forth the benefits that must be covered under such contracts.
Insurance Law section 4303 governs accident and health insurance contracts written by not-for-profit corporations and sets forth the benefits that must be covered under such contracts.
Public Health Law section 4406 provides that the contract between an HMO and an enrollee is subject to regulation by the Superintendent as if it were a health insurance subscriber contract, and that it shall include, but not be limited to, all mandated benefits required by Article 43 of the Insurance Law.
2. Legislative objectives: In November 2011, Chapters 595 and 596 of the Laws of 2011 amended Insurance Law sections 3216, 3221 and 4303 to expand health insurance coverage for the screening, diagnosis and treatment of autism spectrum disorder ("ASD"). The amendments also directed the Superintendent, in consultation with the Commissioners of Health and Education, to promulgate regulations that set forth the standards of professionalism, supervision and relevant experience of individuals who provide behavioral health treatment in the form of applied behavior analysis ("ABA"), under the supervision of a certified behavior analyst for insurance coverage pursuant to Insurance Law sections 3216(i)(25), 3221(l)(17), and 4303(ee). Chapters 595 and 596 took effect on November 1, 2012.
3. Needs and benefits: Prior to the enactment of Chapters 595 and 596, state law did not provide health insurers and HMOs sufficient clarity or an affirmative obligation to cover costs related to treatments for ASD. As a result, individuals diagnosed with an ASD who required treatment in addition to an individualized family services plan, individualized education program, or individualized service plan, had to pay out-of-pocket for expensive services. The law, as amended, ensures that insurance coverage is extended to individuals diagnosed with ASD for treatment such as ABA, thus alleviating the financial burdens placed on the parents and caregivers of those individuals. This rule is being promulgated pursuant to the new statutory amendments to establish the education, training and supervision requirements of ABA providers in order for them to be eligible for health insurance reimbursement under the statute, and also to ensure that only qualified ABA providers will be rendering services to individuals with ASD.
4. Costs: This rule imposes no compliance costs upon state or local governments. Some private ABA providers may incur additional costs to fulfill the educational and training requirements of the rule in order to become eligible for reimbursement from health insurance coverage for providing ABA. However, many individuals currently providing ABA are not expected to incur such costs and will be able to continue providing ABA as they always have. In addition, any such costs are likely to be offset by the additional revenue obtained from being newly eligible for health insurance reimbursement. Nonetheless, the Department of Financial Services ("Department") is unable to estimate the specific cost of such compliance because the cost depends on the number of ABA providers who intend to provide treatment to individuals with ASD for reimbursement through health insurance, and ABA providers are not regulated by the Department.
Insurers and HMOs also may incur compliance costs from having to develop an ABA provider eligibility database, and will have to expand their networks if they do not include an adequate number of ABA providers. Those costs may be passed on to consumers in the form of higher premiums, but the long-term benefits of having properly credentialed ABA providers to treat individuals with ASD greatly outweigh the costs. Furthermore, the costs for insurers and HMOs are a consequence of the legislation, not this regulation.
5. Local government mandates: This rule imposes no new mandates on any county, city, town, village, school district, fire district or other special district.
6. Paperwork: Insurers and HMOs submitted to the Department new health insurance policy forms and rates to add the new coverage for the screening, diagnosis and treatment of ASD. The requirement to make such submissions was imposed by the statutory mandate, not this rule.
7. Duplication: There are no federal or other New York State requirements that duplicate, or conflict with this regulation.
8. Alternatives: The Department, in consultation with the Department of Health and the State Education Department, considered various ways to establish the necessary standards of this regulation, such as delegating credentialing responsibility to the Behavior Analyst Certification Board, Inc. (the "Board"). However, doing so would violate scope of practice requirements under the Education Law when ABA is not provided pursuant to an individualized family service plan, individualized education plan or an individualized service plan. Moreover, State Education Department license and certification requirements protect consumers, including vulnerable ASD patients, from negligent or fraudulent ABA providers. The Department previously promulgated on an emergency basis a different version of this rule, which required an ABA provider both to be certified by the Board and to hold a certain type of license issued pursuant to Education Law Title VIII, or to be supervised by a person with both a license and Board certification. A number of stakeholders, however, expressed concern that the prior rule would permit very few providers to be eligible for health insurance reimbursement for providing ABA - perhaps less than 100 statewide. This new rule eliminates the dual license/Board certification requirement (other than for those who supervise ABA aides) and permits certain individuals licensed or certified by the State Education Department to qualify for health insurance reimbursement for providing ABA. Licensed providers now eligible for insurance reimbursement - whether or not they are certified by the Board - include social workers, psychologists, occupational therapists, physical therapists and speech pathologists, among others. As such, this new rule is expected to expand the pool of eligible providers from as few as 100 or less to tens of thousands while still ensuring that only properly credentialed ABA providers treat individuals with ASD. In addition, some certified providers may now be eligible for insurance coverage - whether or not they are certified by the Board - including school psychologists, social workers and special education teachers.
9. Federal standards: There are no federal minimum standards or regulations regarding professionalism, supervision and relevant experience for individuals who provide ABA under the supervision of a certified behavior analyst as defined under Insurance Law sections 3216(i)(25), 3221(l)(17) and 4303(ee).
10. Compliance schedule: Because the law took effect on November 1, 2012, this rule takes effect upon filing with the Secretary of State.
Regulatory Flexibility Analysis for Small Businesses and Local Governments for new 11 NYCRR 440 (Insurance Regulation 201)
1. Effect of the rule: This rule will impact insurers and health maintenance organizations ("HMOs") in New York State, but none fall within the definition of "small business" set forth in section 102(8) of the State Administrative Procedure Act. However, this rule may affect providers of applied behavior analysis ("ABA") to treat autism spectrum disorder ("ASD"), some of which are small businesses, because some ABA providers may be required to obtain additional education, training and experience in order to become eligible for health insurance reimbursement for rendering ABA. However, many individuals currently providing ABA in the state will not need to do so and will be able to continue providing ABA as they always have. Moreover, any impact to current ABA providers who will need additional licensure or certification is more than offset by the tens of thousands of providers currently licensed or certified by the State Education Department who will now be able to immediately start providing ABA services covered by health insurance, regardless of whether they are credentialed by the Behavior Analyst Certification Board. These providers include licensed social workers, psychologists, physical therapists and speech pathologists, as well as certain certified school professionals.
The Department of Financial Services (the "Department") is unable to quantify the precise number of small businesses affected by this rule because ABA providers are not regulated by the Department, and the Department has established no reporting requirements with respect to these small businesses, nor does the Department maintain records of ABA providers in this state.
2. Compliance requirements: This rule will not impose any reporting, recordkeeping, or other compliance requirements on small businesses, sole proprietors or local governments. The rule only establishes standards of professionalism, training and experience required to be eligible for insurance reimbursement for providing ABA.
3. Professional services: This rule does not require the use of professional services.
4. Compliance costs: This rule will not impose any compliance costs on local governments but may impose additional costs on small businesses that provide ABA to those with ASD, because some may incur costs of education, training and experience for their employees to become eligible for health insurance reimbursement for providing ABA. However, many small businesses will not incur such costs, and any such costs are likely to be more than offset by increased revenue as a result of health insurance reimbursement for these services. Nonetheless, the Department is unable to estimate the cost of such compliance because the cost depends, in part, on the number of ABA providers who intend to provide treatment to individuals with ASD for reimbursement through health insurance, and ABA providers are not regulated by the Department.
5. Economic and technological feasibility: Compliance with the rule should be economically and technologically feasible because it requires no action on the part of local governments and most small businesses. While some small businesses that provide ABA may incur some costs in education and/or training of their employees, many will not, and such costs are likely to be more than offset by increased revenue as a result of health insurance reimbursement for providing ABA services.
6. Minimizing adverse impact: Although some ABA providers that are small businesses may incur additional costs to fulfill the requirements of this rule, many will not, and those costs likely will be offset by the additional revenue that will be generated from health insurance reimbursement for providing ABA services.
7. Small business and local government participation: This rule does not impact local government. In addition, the Department previously promulgated on an emergency basis a different version of this rule, which required an ABA provider both to be certified by the Board and to hold a certain type of license issued pursuant to Education Law Title VIII, or to be supervised by a person with both a license and Board certification. A number of stakeholders, including some representing small businesses, contacted both the Department and the Executive Chamber to comment on that earlier version. Most expressed concern that the prior rule would permit very few providers to be eligible for health insurance reimbursement for providing ABA - perhaps less than 100 statewide.
In response to these concerns, the Department made significant changes to this new version of the rule. The new rule eliminates the dual license/Board certification requirement (other than for those who supervise ABA aides) and permits certain individuals licensed or certified by the State Education Department to qualify for health insurance reimbursement for providing ABA. As such, this new rule is expected to expand the pool of eligible providers from as few as 100 or less to tens of thousands while still ensuring that only properly credentialed ABA providers treat individuals with ASD. Providers who would now be eligible for insurance coverage - whether or not they are certified by the Board - include licensed social workers, psychologists, physical therapists and speech pathologists, as well as certain certified school professionals. Further, the Department intends to subsequently file a notice of proposed rulemaking and public and private interested parties will also thereby have a formal opportunity to comment on the rule once it is published in the State Register.
Rural Area Flexibility Analysis for new 11 NYCRR 440 (Insurance Regulation 201)
1. Types and estimated numbers of rural areas: Applied behavior analysis ("ABA") providers, health insurers, and health maintenance organizations (HMOs) affected by this rule operate throughout this state, including rural areas as defined under State Administrative Procedure Act section 102(10).
2. Reporting, recordkeeping and other compliance requirements, and professional services: This rule will not impose any reporting, recordkeeping, or other compliance requirements on ABA providers located in rural areas. The rule only establishes standards of professionalism, training and experience required to be eligible for insurance reimbursement for providing ABA.
3. Costs: This rule may impose additional costs on some ABA providers located in rural areas, because some may need additional education, training and experience to become eligible for health insurance reimbursement for providing ABA. However, because this new rule eliminates the dual license/Board certification requirement (other than for those who supervise ABA aides), many licensed and certified professionals will be able to provide ABA immediately in rural areas without incurring the cost of pursuing Board certification. These providers include licensed social workers, psychologists, physical therapists and speech pathologists, among others. In addition, any such costs are likely to be more than offset by increased revenue as a result of health insurance reimbursement for ABA providers' services.
Insurers and HMOs submitted to the Department of Financial Services (the "Department") new health insurance policy forms and rates to add the new coverage for the screening, diagnosis and treatment of ASD. The requirement to make such submissions was imposed by the statutory mandate, not this rule. In addition, insurers and HMOs also may incur compliance costs from having to develop an ABA provider eligibility database, and may have to expand their networks if they do not include an adequate number of ABA providers. Those costs may be passed on to consumers in the form of higher premiums, but the long-term benefits of having properly credentialed ABA providers to treat individuals with ASD greatly outweigh the costs. Moreover, these costs, too, result from the legislation, not this rule.
4. Minimizing adverse impact: Although some ABA providers in rural areas may incur additional costs to fulfill the requirements of this rule, the majority will not, and those costs likely will be offset from the additional revenue that will be generated from health insurance reimbursement for their services. Moreover, any impact to current ABA providers who will need additional licensure or certification is more than offset by the tens of thousands of currently licensed and certified providers, whether or not they are credentialed by the Behavior Analyst Certification Board, who will now be able to immediately start providing ABA services covered by health insurance.
5. Rural area participation: The Department previously promulgated on an emergency basis a different version of this rule, which required an ABA provider both to be certified by the Board and to hold a certain type of license issued pursuant to Education Law Title VIII, or to be supervised by a person with both a license and Board certification. A number of stakeholders, including some representing rural areas, contacted both the Department and the Executive Chamber to comment on that earlier version. Most expressed concern that the prior rule would permit very few providers to be eligible for health insurance reimbursement for providing ABA - perhaps less than 100 statewide.
In response to these concerns, the Department made significant changes to this new version of the rule. The new rule eliminates the dual license/Board certification requirement (other than for those who supervise ABA aides) and permits certain individuals licensed or certified by the State Education Department to qualify for health insurance reimbursement for providing ABA. As such, this new rule is expected to expand the pool of eligible providers from as few as 100 or less to tens of thousands while still ensuring that only properly credentialed ABA providers treat individuals with ASD. Providers who would now be eligible for insurance coverage - whether or not they are certified by the Board - include licensed social workers, psychologists, physical therapists and speech pathologists, as well as certain certified school professionals.
Further, the Department intends to subsequently file a notice of proposed rulemaking, and public and private interested parties will also thereby have a formal opportunity to comment on the rule once it is published in the State Register.
Statement setting forth the basis for finding that new 11 NYCRR 440 (Insurance Regulation 201) will not have an adverse impact on jobs and employment opportunities.
1. Nature of impact: In November 2011, Chapters 595 and 596 of the Laws of 2011 amended Insurance Law sections 3216, 3221 and 4303 to expand health insurance coverage for the screening, diagnosis and treatment of autism spectrum disorder ("ASD"). The amendments also directed the Superintendent of Financial Services, in consultation with the Commissioners of Health and Education, to promulgate regulations that set forth the standards of professionalism, supervision and relevant experience of individuals who provide behavioral health treatment in the form of applied behavior analysis ("ABA"). Chapters 595 and 596 took effect on November 1, 2012.
This rule should have no adverse impact on jobs and employment opportunities because it merely implements the statutory charge to establish standards of professionalism, supervision and relevant experience of individuals who provide behavioral health treatment in the form of ABA. These standards are designed to ensure that individuals with autism spectrum disorders receive treatment for those disorders only from qualified ABA providers.
2. Categories and numbers affected: This rule may impact some providers of ABA because some ABA providers may be required to obtain additional education, training and experience in order to become eligible for health insurance reimbursement for providing ABA. However, any costs will likely be offset by the increased revenue resulting from health insurance reimbursement for ABA services. Moreover, any impact to current ABA providers who will need additional licensure or certification is more than offset by the tens of thousands of providers currently licensed or certified by the State Education Department who will now be able to immediately start providing ABA services covered by health insurance, regardless of whether they are credentialed by the Behavior Analyst Certification Board. These professionals include licensed social workers, psychologists, physical therapists and speech pathologists, as well as certified school psychologists, social workers, and special education teachers.
The Department is unable to quantify the precise number of ABA providers affected by this rule because they are not regulated by the Department and the Department has established no reporting requirements with respect to these providers, nor does the Department maintain records of ABA providers in this state.
3. Regions of adverse impact: ABA providers operate in all regions of the state. Therefore, there are no regions of the state where the rule would have a disproportionate adverse impact on jobs or employment opportunities.
4. Minimizing adverse impact: Although some ABA providers may incur additional costs to fulfill the education, training and experience requirements of this rule, it is anticipated that many will not. In addition, any costs likely will be offset by the additional revenue that will be generated from health insurance reimbursement for ABA providers' services. Moreover, any impact to current ABA providers who will need additional licensure or certification is more than offset by the tens of thousands of currently licensed and certified providers, whether or not they are credentialed by the Behavior Analyst Certification Board, who will now be able to immediately start providing ABA services covered by health insurance.
5. Self-employment opportunities: This rule will have a positive impact on ABA providers who are self-employed because opportunities will be available to provide ABA services outside of an educational setting for reimbursement through health insurance, especially with the increasing number of individuals being diagnosed with ASD, and for whom ABA is critical.