Guidance on Recent Legislation Concerning Behavioral Sciences

On May 13, 2021, Superintendent of Insurance Toal issued Bulletin 2021-007, providing guidance for SB 317, which prohibits cost-sharing, including deductibles, for behavioral services covered by health plans issued by state until January 1, 2027. Specifically, the guidance addresses the impact of this statute on high deductible health plans (“HDHPs”) that satisfy health savings account (“HSA”) eligibility requirements on or after January 1, 2022. Superintendent Toal states that SB 317 does not prohibit the sale of plans that meet those requirements.

To be HSA-eligible under the IRC, a healthcare plan must require the insured person to satisfy a specified high deductible before receiving any covered benefits, other than benefits for preventative services. Behavioral services are not currently considered to be preventative services under the IRC, so prohibiting cost-sharing for those services appears to render healthcare plans issued in the state as HSA-ineligible.

However, Superintendent Toal notes that the state encourages the use of HSAs and HDHPs in the state, and this statute does not explicitly prohibit the use of those plans in the state. Since there is no intent to conflict with previous legislation and policy in the state to encourage the use of HSAs and HDHPs, Superintendent Toal concludes that SB 317 does not apply to those plans.

Employers should be aware of this bulletin. Although the superintendent’s position on the applicability of SB 317 to HSAs and HDHPs may influence the enforcement of the state’s law, it may not be binding on the federal government’s enforcement of the IRC. Employers should consult with counsel or their tax advisors concerning the effect of this statute on their HSA and HDHP plans.

SB 317 »
Bulletin 2021-007 »