On September 16, 2020, Gov. Cuomo announced that the state exchange’s Special Enrollment Period (SEP) for uninsured residents will be extended through December 31, 2020. Affected individuals can apply for coverage through NY State of Health, New York State's health insurance marketplace, or directly through insurers.

Individuals who have lost employer coverage must apply within 60 days of losing that coverage. Those who enroll in qualified health plans by October 15, 2020, will have a choice of coverage start dates of either October 1, 2020, or November 1, 2020. Those enrolling between October 16, 2020, and December 15, 2020, will have a choice of coverage start dates of November 1, 2020, or December 1, 2020. Finally, those enrolling between December 16 and December 31, 2020, will have a coverage start date of January 1, 2021.

The extension is being provided as a result of the COVID-19 public health emergency, so uninsured residents do not avoid seeking testing or medical care due to a lack of coverage. Those who enroll during the SEP will have the option to continue their enrollment in the same plan in 2021 without a break in coverage.

Employers should be aware of this extension, which may provide an alternative for individuals who have recently lost employer provided coverage.

SEP Announcement »

On September 30, 2020, the state’s paid sick leave law will become effective. This law requires all private employers to provide job-protected sick leave to employees in the state.

We explained this law in detail in our April 28, 2020, Compliance Corner article. See that article for information on the law’s requirements.

Employers should be aware that the paid sick leave requirements are taking effect and that they must begin tracking the leave accrual requirements. It is also important to update leave polices and employee communications to reflect the leave availability.

See our prior Compliance Corner article on this law here »

On August 5, 2020, the Department of Financial Services (DFS) issued Circular Letter No. 14 regarding personal protective equipment (PPE) fee assessments by healthcare providers. This communication was issued to all insurers authorized to write health insurance in the state, health maintenance organizations (HMOs), student health plans, municipal cooperative health benefit plans and prepaid health service plans.

As background, DFS recently received consumer complaints that healthcare providers, particularly dental providers, were improperly assessing PPE fees and other COVID-19 related charges for in-person visits by insureds. These costs were being passed to insurers and extended beyond the insured patient's applicable cost sharing.

The letter reinforces that participating providers should not bill a patient for any charges that are in addition to the patient's cost sharing obligations for covered services. Insurers should also not cover these charges. Additionally, DFS will not approve policy or contract provisions that hold the insureds responsible for the cost of a healthcare provider's PPE.  

Accordingly, insurers are obligated to ensure covered individuals are not assessed PPE fees. To this end, the letter advises insurers to notify participating providers not to charge PPE fees, to hold insureds harmless for these charges, and to refund PPE fees already collected. Furthermore, insurers must notify insureds that they should not be charged for PPE fees and provide contact information to submit related complaints. The insurers are required to work with providers to resolve related issues and ensure refunds are provided. Finally, within 90 days, insurers are required to report to DFS the amount of PPE fees charged to insureds, the number of insureds impacted and a description of how refunds will be provided. 

Although the letter is primarily directed at insurers, employers may also want to be aware of this guidance.

Circular Letter »

On July 15, 2020, Gov. Cuomo announced that the special enrollment period for uninsured New Yorkers will be extended for another 30 days, through August 15, 2020. This extension will allow uninsured state residents to apply for coverage through NY State of Health, New York State's health insurance marketplace, or directly through insurers.

The state is in the process of reopening after being severely impacted by the COVID-19 pandemic. Accordingly, the measure was intended to ensure that residents have access to affordable health coverage during this critical period and do not avoid seeking testing or medical care due to cost concerns.

Individuals who have lost employer coverage must apply within 60 days of losing that coverage. Those who enroll in qualified health plans by August 15, 2020, have a choice of a coverage start date of either August 1 or September 1, 2020.

Employers should be aware of this special enrollment period extension, which may provide an affordable alternative for individuals who have recently lost employer provided coverage.

Announcement »

On June 26, 2020, Gov. Cuomo issued Executive Order 202.45, which modifies certain laws relating to the COVID-19 disaster emergency. Among other items, the order restricts employee eligibility for the state’s COVID-19 paid sick leave following voluntary travel.

As background, on June 24, 2020, Gov. Cuomo issued Executive Order 205, which imposed a two week quarantine on travelers arriving in New York from other states with high COVID-19 positive test rates. Specifically, the restriction applies following travel to a state with a positive test rate higher than 10 per 100,000 residents, or higher than a 10% test positivity rate, over a seven day rolling average.

However, Executive Order 205 did not address whether employees who voluntarily travel to such high risk states, which currently include Florida, the Carolinas and Texas, are eligible for the state COVID-19 paid sick leave upon return. Such leave would otherwise normally be available to employees subject to a mandatory or precautionary COVID-19 quarantine order, with certain variations based upon the employer size and net income.

Accordingly, Executive Order 202.45 modified the NYS COVID-19 Paid Sick Leave Act to clarify that effective June 26, 2020, employees who commence voluntary travel to high-risk states shall not be eligible for the state’s paid sick leave or other paid benefits. The restriction does not apply to travel that is work-related or at the direction of the employer.

Although affected employees may not be eligible for the state paid sick leave benefits, they may still be able to use any employer provided accrued leave for the quarantine period. Additionally, depending upon the employer size, certain employees may still potentially qualify for federal FFCRA paid sick leave.

Employers should be aware of these developments and provide notice to employees regarding the limitations on availability of the state paid sick leave following voluntary travel to high-risk areas. They may also wish to consult with counsel for additional guidance.

Executive Order 202.45 »

On June 11, 2020, the Department of Financial Services amended the state’s Insurance Regulation 62 to prohibit cost sharing for in-network covered services provided via telehealth during the COVID-19 emergency. The amendment pertains to all policies or contracts delivered or issued for delivery in the state.

Given the public health implications related to COVID-19, the amendment is intended to enable state residents to continue to access healthcare services in a way that limits the spread of COVID-19 by encouraging the use of telehealth services. The measure is also designed to alleviate unnecessary stress on health and emergency care systems.

Specifically, this amendment prohibits insurers and health maintenance organizations that provide comprehensive coverage for hospital, surgical or medical care from imposing copayments, coinsurance or annual deductibles for an in-network service otherwise covered under the policy when such service is delivered via telehealth during the state’s COVID-19 emergency. The measure also requires every healthcare plan to provide written notification of the requirements of the amendment to its in-network healthcare providers to ensure they do not impose cost sharing upon insureds.

The amendment is primarily directed at issuers and health maintenance organizations; however, employers may also want to be aware of this development.

Insurance Regulation 62 Amendment »

On May 22, 2020, the Department of Financial Services (DFS) issued Circular Letter No. 12 regarding coverage for COVID-19 testing at pharmacies. This communication was issued to all insurers authorized to write health insurance in the state, amongst other parties.

In order to increase access to COVID-19 testing in the state, Gov. Cuomo previously issued Executive Order 202.24. This directive authorized licensed pharmacists to order and administer FDA approved tests to detect a COVID-19 infection or its antibodies. It also allowed pharmacists to be designated as qualified healthcare professionals for the purpose of directing limited service laboratories to conduct such tests.

The purpose of the circular letter is to advise insurers of their coverage obligations with respect to the pharmacy COVID-19 testing. Accordingly, issuers are reminded that diagnostic testing is an essential health benefit and therefore must be covered under individual and small group health insurance policies. Under state insurance laws, issuers of large group policies must also make coverage available for laboratory tests.

Furthermore, the coverage for the COVID-19 testing at pharmacies must be provided without cost sharing. State insurance law and the CARES Act prohibit the assessment of copayments, coinsurance or annual deductibles for both in-network and out-of-network COVID-19 testing. For out-of-network testing, the issuer must pay the provider’s publicly listed cash price, unless a lower rate is negotiated.

The letter is primarily directed at issuers, but encourages third party administrators licensed as independent adjusters by the state to apply the provisions to their administrative service arrangements with self-funded plans. Employers may also want to be aware of this correspondence.

Circular Letter No. 12 »

On May 29, 2020, the Department of Financial Services (DFS) released COVID-19 information for insurers and providers regarding mental health coverage for essential workers. The guidance, which is in the form of questions and answers, addresses issues such as the scope, administrative aspects and notice obligations of the new coverage requirements. 

As background, on May 2, 2020, DFS amended the state’s Insurance Regulation 62 to provide essential workers with temporary relief from cost sharing for mental health services. The amendment recognized the emotional and psychological impact of the COVID-19 public emergency on these workers by alleviating costs they would otherwise incur for seeking in-network mental health services.

The questions clarify that the cost sharing waiver applies to all outpatient mental health services provided by in-network providers on or after May 2, 2020, but does not extend to prescription drugs. This relief measure extends to all individuals who are, or were, essential workers during the state of emergency declared by Gov. Cuomo on March 7, 2020.

Insurers are required to notify in-network mental health providers not to collect any deductible, copayment, or coinsurance from essential workers, and to provide a definition and list of these workers. However, the issuer remains responsible for reimbursing the provider for the cost-sharing amount.

Although this emergency relief measure is primarily directed at issuers, employers may want to be aware of the amendment and this subsequent guidance. For a summary of the underlying insurance amendment, please see our May 27, 2020, issue of Compliance Corner.

Coronavirus (COVID-19) Information for Insurers and Providers on Coverage for Mental Health Services for Essential Workers »

On May 22, 2020, the Division of Insurance issued LH Bulletin No. 2020-03 to life and health insurers and HMOs licensed by the state. The division expressed its expectation that those insurers and HMOs will cover polymerase chain reaction (PCR) tests and antigen tests, which are designed to detect COVID-19, when there is a medical need to provide them. The division also expects them to cover FDA-authorized antibody tests, waive cost-sharing requirements for those tests and process claims for those tests in accordance with federal guidelines. This expectation does not extend to antibody tests that are performed as part of a “return-to-work” program or other efforts not associated with disease diagnosis or treatment.

The division also encourages administrators of self-funded plans to comply with the bulletin.

Employers in the state or whose plans are regulated by the state should be aware of these developments.

LH Bulletin No. 2020-03 »

On May 2, 2020, the Department of Financial Services (DFS) amended the state’s Insurance Regulation 62 to provide essential workers with temporary relief from cost sharing for mental health services. The amendment pertains to all policies or contracts delivered or issued for delivery in the state.

Following the declaration of a public emergency in the state on March 7, 2020, the coronavirus (COVID-19) pandemic has significantly impacted all New Yorkers, but especially essential workers who have directly interacted with the public and exposed themselves and their families to health risks. The amendment recognizes the emotional and psychological toll on these essential workers by alleviating cost they would otherwise incur for seeking in-network mental health services.

Specifically, insurers and health maintenance organizations that provide comprehensive coverage for hospital, surgical or medical care are prohibited from imposing copayments, coinsurance or annual deductibles for mental health services rendered by in-network providers on an outpatient basis for essential workers. The amendment excepts high deductible health plans as defined in Code Section 223(c) (2) that may be required under federal law to subject a service to the plan’s annual deductible.

Additionally, the amendment requires an insurer to provide written notification, which may be by email, to in-network outpatient mental health providers that they shall not collect any deductible, copayment or coinsurance from an essential worker. The notice must include the definition of an essential worker.

For purposes of the amendment, essential workers are defined to include individuals who are or were employed as health care workers, first responders, or in any position within a nursing home, long-term care facility or other congregate care setting during the state of emergency declared in the state on March 7, 2020. Furthermore, the definition includes individuals employed as essential workers who interact with the public, such as transit workers, retail workers at essential businesses, delivery workers, food service workers, funeral service workers and security guards.

Although the amendment is primarily directed at issuers, employers may want to be aware of this emergency relief measure.

Insurance Regulation 62 Amendment »