DFS-08-16-00002-P Minimum Standards for Form, Content and Sale of Health Insurance, Including Standards of Full and Fair Disclosure

2/24/16 N.Y. St. Reg. DFS-08-16-00002-P

NEW YORK STATE REGISTER

VOLUME XXXVIII, ISSUE 8

February 24, 2016

RULE MAKING ACTIVITIES

DEPARTMENT OF FINANCIAL SERVICES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. DFS-08-16-00002-P

Minimum Standards for Form, Content and Sale of Health Insurance, Including Standards of Full and Fair Disclosure

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Amendment of Part 52 (Regulation 62) of Title 11 NYCRR.

Statutory authority:

Financial Services Law, sections 202 and 302; Insurance Law, sections 301 and 3201(c)

Subject:

Minimum Standards for Form, Content and Sale of Health Insurance, Including Standards of Full and Fair Disclosure.

Purpose:

To prohibit a health insurance policy or contract from providing coverage for conversion therapy to insureds under the age of 18.

Text of proposed rule:

Subdivision 52.16(n) is added as follows:

(n)(1) As used in this subdivision:

(i) Mental health professional means a person subject to the provisions of Education Law Article 131, 153, 154, or 163; or any other person designated as a mental health professional pursuant to law, rule, or regulation.

(ii) Conversion therapy:

(a) means any practice by a mental health professional that seeks to change an individual's sexual orientation or gender identity, including efforts to change behaviors, gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.

(b) Conversion therapy shall not include counseling or therapy for an individual who is seeking to undergo a gender transition or who is in the process of undergoing a gender transition, that provides acceptance, support, and understanding of an individual or the facilitation of an individual’s coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices, provided that the counseling or therapy does not seek to change sexual orientation or gender identity.

(2) No policy or certificate shall provide coverage for conversion therapy rendered by a mental health professional to an individual under the age of 18 years.

Text of proposed rule and any required statements and analyses may be obtained from:

Thomas Fusco, New York State Department of Financial Services, 65 Court Street, Room 7, Buffalo, NY 14202, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.

Regulatory Impact Statement

1. Statutory authority: Financial Services Law (“FSL”) Sections 202 and 302 and Insurance Law (“IL”) Sections 301 and 3201(c). Pursuant to FSL § 202, the Superintendent of Financial Services (“Superintendent”) has the rights, powers, and duties in connection with financial services and protection in this state, expressed or reasonably implied by the FSL or any other applicable law of this State. IL § 301 and FSL § 302, in pertinent part, authorize the Superintendent to prescribe regulations, not inconsistent with the IL and FSL, interpreting the provisions of the IL and to effectuate any power granted to the Superintendent in the Insurance Law. IL § 3201(c) authorizes the Superintendent to disapprove any policy form for delivery or issuance for delivery in this state if the benefits provided therein are unreasonable in relation to the premium charged or any such form contains provisions that encourage misrepresentation or are unjust, unfair, inequitable, misleading, deceptive, or contrary to law or to the public policy of this state.

2. Legislative objectives: The amendment to the regulation would prohibit any insurer from providing coverage in any insurance policy or contract delivered or issued for delivery in New York for conversion therapy for any individual under the age of 18 years. As discussed below in Needs and Benefits, there is a growing consensus in the medical community that conversion therapy for minors actually can be harmful to the minor. Further, homosexuality is not a disorder requiring treatment; therefore providing coverage for treatment that is not medically necessary in a policy or contract is misleading or deceptive. This amendment is being proposed in conjunction with amendments by the Office of Mental Health that prohibit any facility under its supervision from providing conversion therapy to minors.

3. Needs and benefits: Conversion therapy refers to any practice by a mental health professional that seeks to change an individual’s sexual orientation or gender identity, including efforts to change behaviors, gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex. Conversion therapy does not include counseling or therapy for an individual who is seeking to undergo a gender transition or who is in the process of undergoing a gender transition, that provides acceptance, support, and understanding of an individual or the facilitation of an individual’s coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices, provided that the counseling or therapy does not seek to change sexual orientation or gender identity. The practice is currently legal in New York State and there are no prohibitions against such therapy being reimbursed through commercial health insurance. However, conversion therapy has been repudiated and discredited by many medical and professional organizations, including: the American Academy of Pediatrics; the American Counseling Association; the American Psychiatric Association; the American Psychological Association; the American School Health Association; the American Association of School Administrators; the American School Counselor Association; the National Association of School Psychologists; and the National Association of Social Workers. These and many other mainstream health and mental health professional organizations have rejected the notion that homosexuality is a mental disorder or that same-sex attraction and orientation in adolescents is abnormal or mentally unhealthy. Below are examples of public statements issued by various professional organizations about the dangers of conversion therapy:

(a) The American Academy of Pediatrics, in a 2001 pamphlet entitled Gay, Lesbian and Bisexual Teens: Facts for Teens and Their Parents, advised that “counseling may be helpful for [adolescents] if [they] feel confused about [their] sexual identity.” However, the Academy noted that teens should “avoid any treatments that claim to be able to change a person’s sexual orientation, or treatment ideas that see homosexuality as a sickness.”

(b) Principle 6 of the American Academy of Child and Adolescent Psychiatry’s Practice Parameter, published in September 2012, states that there is no evidence that sexual orientation can be altered through therapy, and that attempts to do so may be harmful. The Academy also noted that “there is no medically valid basis for attempting to prevent homosexuality, which is not an illness. On the contrary, such efforts may encourage family rejection and undermine self-esteem, connectedness, and caring, which are important protective factors against suicidal ideation and attempts.”

(c) The American Psychiatric Association published a position statement in March of 2000 in which it stated: “Psychotherapeutic modalities to convert or ‘repair’ homosexuality are based on developmental theories whose scientific validity is questionable. Furthermore, anecdotal reports of ‘cures’ are counterbalanced by anecdotal claims of psychological harm. In the last four decades, ‘reparative’ therapists have not produced any rigorous scientific research to substantiate their claims of cure. Until there is such research available, the American Psychiatric Association recommends that ethical practitioners refrain from attempts to change individuals’ sexual orientation, keeping in mind the medical dictum to first, do no harm. The potential risks of reparative therapy are great, including depression, anxiety and self-destructive behavior, since therapist alignment with societal prejudices against homosexuality may reinforce self-hatred already experienced by the patient. Many patients who have undergone reparative therapy relate that they were inaccurately told that homosexuals are lonely, unhappy individuals who never achieve acceptance or satisfaction. The possibility that the person might achieve happiness and satisfying interpersonal relationships as a gay man or lesbian is not presented, nor are alternative approaches to dealing with the effects of societal stigmatization discussed. Therefore, the American Psychiatric Association opposes any psychiatric treatment such as reparative or conversion therapy which is based upon the assumption that homosexuality per se is a mental disorder or based upon the a priori assumption that a patient should change his/her sexual orientation.”

Indeed, it has been reported that minors who experience family rejection based on their sexual orientation face especially serious health risks. In one study, lesbian, gay, and bisexual young adults who reported higher levels of family rejection during adolescence were 8.4 times more likely to report having attempted suicide, 5.9 times more likely to report high levels of depression, 3.4 times more likely to use illegal drugs, and 3.4 times more likely to report having engaged in unprotected sexual intercourse compared with peers from families that reported no or low levels of family rejection (Family Rejection as a Predictor of Negative Health Outcomes in White and Latino Lesbian, Gay, and Bisexual Young Adults (2009) 123 Pediatrics 346).

Based on the positions of many reputable medical and mental health professional organizations, the Department believes that providing reimbursement for a repudiated and discredited therapy that is not only medically unwarranted and provides no therapeutic value, but also harmful to the patient is therefore inappropriate and misleading. This amendment ensures that insurers will not provide coverage for such conversion therapy for insureds under 18 years old.

4. Costs: This rule imposes no compliance costs upon state or local governments. This rule also imposes no compliance costs on insurers.

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: This rule does not impose any additional paperwork except that insurers will have to refile their policy forms to show that coverage for conversion therapy for individuals under 18 years old is specifically excluded.

7. Duplication: There are no federal or other New York State requirements that duplicate, or conflict with this regulation.

8. Alternatives: The Department considered various alternative methods to ensuring that policies or contracts do not provide coverage for conversion therapy for individuals under 18 years old, including issuance of a Department directive through a circular letter to insurers. However, in order for any such directive to be binding on insurers, a regulation is necessary. In addition, although many reputable medical and mental health professional organizations have condemned the practice of conversion therapy, such condemnation alone will not necessarily curb that practice. In fact, in its May 2012 position statement, the Pan American Health Organization stated that services that “purport to ‘cure’ people with non-heterosexual sexual orientation lack medical justification and represent a serious threat to the health and well-being of affected people. . .”, and recommended that governments and other entities sanction the harmful practice of conversion therapy.

9. Federal standards: There are no minimum standards of the federal government for the same or similar subject areas.

10. Compliance schedule: Since insurers that have to amend their policy forms to conform to this amendment need time to file with and get approval from the Superintendent, the rule is effective 60 days after publication of the Notice of Adoption in the State Register. Insurers may, however, issue policies or contracts before that date that conform to the regulation upon obtaining approval.

Regulatory Flexibility Analysis

1. Effect of rule: This amendment to Insurance Regulation 62 would prohibit any insurer from providing coverage in any insurance policy or contract delivered or issued for delivery in New York for conversion therapy for any individual under the age of 18 years. As discussed more fully in Needs and Benefits in the Regulatory Impact Statement, there is a growing consensus in the medical community that conversion therapy for minors actually can be harmful to the minor. Further, homosexuality is not a mental disorder requiring treatment; therefore providing coverage for treatment that is not medically necessary in a policy or contract is misleading or deceptive.

2. Small businesses: The rule applies directly to insurers authorized to do business in New York State, none of which fall within the definition of a “small business” as defined in State Administrative Procedure Act § 102(8). The Department has monitored annual statements and reports on examination of authorized insurers subject to this rule, and believes that none of the insurers fall within the definition of small business because no insurer is both independently owned and has fewer than 100 employees.

Although the amendment does not directly impose any requirements on any mental health professional, it does prohibit an insurer from providing coverage for the performance of conversion therapy on individuals under 18 years old. As such, mental health professionals that may provide the therapy may find that patients are unable to pay for the treatment and thus may discontinue it. Many of the mental health professionals licensed in New York may be small businesses but the Department does not have information as to how many such professionals are small businesses or whether any such professional has performed conversion therapy.

3. Local governments: The rule does not impose any impact, including any adverse impact, or reporting, recordkeeping, or other compliance requirements on any local governments. The basis for this finding is that the rule is not directed at local governments and they do not provide the therapy.

4. Compliance requirements: A local government will not have to undertake any reporting, recordkeeping, or other affirmative acts to comply with this amendment to the rule since the amendment does not apply to a local government. Although health care professionals that provide the therapy may be affected by the regulation, they have no reporting requirements.

5. Professional services: A local government will not need any professional services to comply with this amendment to the rule since the amendment does not apply to a local government. Although health care professionals that provide the therapy may be affected by the regulation, they will not require professional services.

6. Compliance costs: A local government will not incur any costs to comply with this amendment to the rule since the amendment does not apply to a local government. Although health care professionals that provide the therapy may be affected by the regulation, they have no compliance costs.

7. Economic and technological feasibility: There should not be any issues pertaining to the economic and technological feasibility of complying with this amendment to the rule with regard to a local government since this amendment does not apply to a local government. Although health care professionals that provide the therapy may be affected by the regulation, since the regulation imposes no obligations on the professionals, there are no issues pertaining to the economic and technological feasibility of complying with this amendment to the rule.

8. Minimizing adverse impact: There will not be an adverse impact on a local government since this amendment to the rule does not apply to a local government. However, there may be an adverse impact on a mental health professional, but the degree of that impact would depend upon how significant conversion therapy is to the professional’s practice. The Department considered the approaches suggested in State Administrative Procedure Act § 202-b(1) for minimizing adverse impacts but did not find them applicable.

9. Small business and local government participation: Mental health professionals that may be small businesses will have an opportunity to participate in the rule making process when this amendment to the rule is published in the State Register.

Rural Area Flexibility Analysis

The Department of Financial Services finds that this rule does not impose any additional burden on persons located in rural areas, and will not have an adverse impact on rural areas. This rule applies uniformly to regulated parties that do business in both rural and non-rural areas of New York State. Additionally, this rule will not require regulated entities to engage in any additional reporting, recordkeeping or other compliance requirements. Neither will it require additional professional services. As such, this rule will not impose additional costs on rural areas.

Job Impact Statement

The Department of Financial Services finds that this rule should have little or no negative impact on jobs or employment opportunities in this state. This rule only prohibits insurance companies from providing health insurance coverage for conversion therapy for individuals under 18 years old. It is not known if any mental health professional in this state provides such therapy but if there are any, those professionals are not likely engaged in such activities as a significant part of their practice. Hence, the prohibition against insurance coverage is likely to have little effect on such providers’ job and employment opportunities.