Insurance Circular Letter No. 12 (2019)

December 11, 2019

STATUTORY REFERENCES: N.Y. Insurance Law §§ 3216, 3221, and 4303

I. Purpose

This circular letter provides guidance to insurers authorized to write accident and health insurance in New York State, article 43 corporations, health maintenance organizations, student health plans certified pursuant to New York Insurance Law (“Insurance Law”) § 1124, and municipal cooperative health benefit plans (collectively, “issuers”) regarding coverage for smoking cessation treatment. This circular letter reminds issuers that coverage for smoking cessation treatment is required as a preventive service under the Insurance Law, including coverage for insureds who use e-cigarettes (a practice often referred to as “vaping”) to deliver nicotine.

II. Discussion

Insurance Law §§ 3216(i)(17)(E), 3221(l)(8)(E) and (F), and 4303(j)(3) require issuers that deliver or issue for delivery an insurance policy or contract in New York providing hospital, surgical, or medical care coverage, except for a grandfathered health plan,¹ to provide coverage for certain preventive care and screenings at no cost-sharing. The Insurance Law requires, among other things, that issuers provide coverage for evidence-based care and screenings with an “A” or “B” rating in the current recommendations of the United States Preventive Services Task Force (“USPSTF”) at no cost-sharing.

In September 2015, the USPSTF issued an “A” rated recommendation in relation to tobacco use. The recommendation states that clinicians should ask all adults, including pregnant women, about tobacco use, advise them to stop using tobacco, and provide behavioral interventions and U.S. Food and Drug Administration (“FDA”)-approved pharmacotherapy for cessation with respect to adults who use tobacco. According to the recommendation statement, effective behavioral interventions include in-person behavioral support and counseling, telephone counseling, and self-help materials. The recommendation statement also indicates that the only pharmacotherapy interventions currently approved by the FDA for the treatment of tobacco dependence in adults are bupropion SR, varenicline, and nicotine replacement therapy, including nicotine transdermal patches, lozenges, gum, inhalers, and nasal spray.

In addition, the U.S. Departments of Labor, Health and Human Services, and the Treasury issued joint guidance on the USPSTF-recommended service, stating that issuers should cover screening for tobacco use and at least two tobacco cessation attempts per year with no cost-sharing and without prior authorization requirements. A tobacco cessation attempt includes four tobacco cessation counseling sessions of at least ten minutes each, including telephone counseling, group, or individual counseling, and all FDA-approved tobacco cessation medications, including prescription and over-the-counter medications, for a 90-day treatment period when prescribed by a health care provider.

The Department of Financial Services (“Department”) expects issuers to provide both recommended interventions, including access without cost-sharing, to all types of FDA-approved pharmacotherapy, in order to be compliant with this preventive care requirement.

The USPSTF also issued, as of August 2013, a “B” rated recommendation that primary care clinicians provide interventions, including education or brief counseling, to prevent initiation of tobacco use among school-aged children and adolescents. According to the recommendation statement, behavioral interventions may include face-to-face or phone interaction with a health care provider, print materials, and computer applications.

Concerns regarding the use of e-cigarettes have recently arisen. As of December 3, 2019, 2,291 cases of e-cigarette-associated lung injury were reported to the Centers for Disease Control (“CDC”) from 50 states, and 48 deaths have been confirmed in 25 states. The CDC recommends that adults addicted to nicotine who use e-cigarettes should weigh all risks and benefits and consider using FDA-approved nicotine replacement therapies. Since e-cigarettes contain nicotine, a chemical in tobacco, and insureds who vape may become addicted to nicotine, issuers should provide coverage for vaping cessation using the same treatments recommended for smoking cessation, including behavioral interventions and FDA-approved pharmacotherapy for adults and behavioral interventions for school-aged children and adolescents.

III. Conclusion

In accordance with Insurance Law §§ 3216(i)(17)(E), 3221(l)(8)(E) and (F), and 4303(j)(3), issuers that deliver or issue for delivery an insurance policy or contract in New York providing hospital, surgical, or medical care coverage, except for a grandfathered health plan, must provide coverage for smoking cessation treatment, including cessation treatment for insureds who use e-cigarettes. This includes nicotine use screening, behavioral interventions, and FDA-approved pharmacotherapy at no cost-sharing for adults, in addition to behavioral interventions, including education and behavioral therapy for cessation for minors at no cost-sharing. Coverage for e-cigarette cessation treatment is vital to alleviate the harms of the recent e-cigarette epidemic, including lung injury and nicotine addiction. The Department will continue to monitor compliance with all preventive service requirements and may take action against an issuer for any failure to adhere to all statutory or regulatory requirements for preventive care.

Please direct any questions regarding this circular letter to Gerasimos Stamoulis, Associate Insurance Attorney, by mail at New York State Department of Financial Services, Health Bureau, One Commerce Plaza, 19^th Floor, Albany, New York 12257, or by email at [email protected].

Very truly yours,

Lisette Johnson
Bureau Chief, Health Bureau

¹ A “grandfathered health plan” means coverage provided by an issuer in which an individual was enrolled on March 23, 2010, for as long as the coverage maintains grandfathered status in accordance with 42 U.S.C § 18011(e). Insurance Law §§ 3216(i)(17)(F), 3221(l)(8)(G), and 4303(j)(4).