New York Mental Health Parity Laws and Your TMS Claim

Mental health parity law does not require any plan to cover TMS. What it does is limit how a plan may restrict mental health care: in New York, group coverage may not apply financial requirements or treatment limits to mental health benefits that are more restrictive than those it applies to "substantially all medical and surgical benefits". The federal Mental Health Parity and Addiction Equity Act (MHPAEA) sets a similar rule, and its statutory requirements and 2013 regulations remain in force.

For a TMS claim, parity is most useful as a lens on process: how the plan wrote its criteria, how it reviews requests, and whether it will show you the rules. Most TMS denials, though, are medical-necessity disputes, and those are won or lost on documentation through the appeal process. Which law applies depends on how your coverage is funded, so that comes first.

Which rules apply to your coverage

DFS states that when an employer self-funds coverage, "an insurer may still process claims, but New York protections don't apply", and directs Medicaid, Essential Plan and Child Health Plus members to the Department of Health. The quickest way to find out which row you are in is to ask your plan or employer whether the coverage is fully insured or self-funded. Medicare and Medicaid rules for TMS are covered in Medicare TMS coverage in New York and New York Medicaid TMS coverage.

New York's law: from Timothy's Law to today

New York's parity statute is known as Timothy's Law. It was enacted as Chapter 748 of the Laws of 2006, amended by Chapter 502 of the Laws of 2007, and took effect on January 1, 2007; it is codified in Insurance Law sections 3221(l)(5) and 4303. This guide quotes the current statutory text rather than summarizing each later amendment; read the full section on the New York State Senate site for the complete wording.

Three provisions of section 3221(l)(5) matter most for TMS:

• The parity rule itself: mental health benefits may not carry financial requirements or treatment limits "more restrictive than the predominant" ones applied to substantially all medical and surgical benefits.
• The definition: a "mental health condition" is defined by reference to the most recent edition of the DSM, which includes major depressive disorder.
• Disclosure: insurers must make their mental health medical-necessity criteria available to insureds, prospective insureds and in-network providers on request.

The disclosure rule is the one patients use most. DFS's consumer page puts the broader point plainly: "Your insurer must provide a similar level of benefits for your mental health condition and substance use disorder."

The federal law and the 2024 rule, as of October 2026

Federal regulators issued a new MHPAEA rule in 2024, but most of what it added is not being enforced. On May 15, 2025, the Departments of Labor, Health and Human Services and the Treasury announced they would not enforce the parts of the 2024 rule that are new relative to the 2013 rule, for failures before a final decision in the ERIC litigation "plus an additional 18 months". The same statement says the statute, as amended in 2021, the 2013 rule and existing guidance "continue to have effect".

On September 8, 2026, the Labor Department's Employee Benefits Security Administration issued Field Assistance Bulletin 2026-03 on enforcing the rules for nonquantitative treatment limits, such as prior authorization and medical-necessity criteria. It names three enforcement priorities: separate treatment limitations, including blanket treatment exclusions that apply only to mental health or substance use benefits; medical-necessity standards and review processes, including prior authorization, concurrent review and retrospective review; and network admission standards and provider reimbursement. It also says that proprietary clinical guidelines must be made available to participants and beneficiaries on request. The bulletin describes itself as internal policy that creates no enforceable rights, so treat it as a signal of where regulators are looking, not as a new rule.

Where parity helps a TMS claim, and where it does not

Parity compares a plan's mental health rules with its own medical and surgical rules. It does not compare one insurer with another. Aetna requires each failed antidepressant trial to last at least 8 weeks and Cigna counts 4 weeks, and both can be lawful; the parity question is how each plan treats comparable medical services.

Arguments that can carry weight

• The plan will not produce the criteria it used. For state-regulated group coverage, that conflicts with section 3221(l)(5)(D).
• A blanket exclusion of a treatment for a covered mental health condition, when comparable treatments are covered on the medical side. Federal regulators named this a priority in 2026.
• Review processes for TMS that are noticeably heavier than for comparable medical procedures, such as repeated re-authorization at short intervals.

Arguments that usually do not

• "TMS works, so the plan must cover it." Coverage turns on the plan's criteria and medical necessity, not on parity.
• "Another insurer covers accelerated TMS." Aetna, Cigna and Optum all call accelerated protocols experimental or unproven; that is a medical-necessity dispute for the appeal process. See accelerated TMS and its FDA status.
• A denial because the record does not show the required medication trials. The fix is better documentation, not a parity complaint.

A parity-aware appeal, step by step

1. Ask in writing for the denial reason, the criteria used and the reviewer's credentials. Keep the reply.
2. Compare the criteria with the record. Many denials come down to a missing scale score, a trial without dates, or a diagnosis code that does not match the policy.
3. File the internal appeal. New York allows no less than 45 days after the notice; a standard appeal must be decided within 30 days and an expedited one within two business days of receiving the necessary information. Appeals are decided by a clinical peer who did not make the original decision.
4. If the final answer is still no, request an external appeal through DFS for denials based on medical necessity or experimental status. You have 4 months from the final adverse determination; the plan may charge $25 per appeal, capped at $75 per plan year, refunded if you win; a standard decision comes within 30 days and an expedited one within 72 hours.
5. If you believe the plan broke parity or disclosure rules, file a complaint with DFS online; DFS lists (800) 342-3736 for questions.
6. For help with any of these steps, New York's behavioral health ombudsman program, CHAMP, takes calls at (888) 614-5400 on weekdays.

External appeals can be filed through the DFS portal, by email, by fax at (800) 332-2729 or by mail to 99 Washington Avenue, Box 177, Albany, NY 12210. The patient-side walkthrough is in how to appeal a TMS denial in New York. For the payer criteria themselves, see the guides to UnitedHealthcare and Optum, Aetna and Cigna.

When there is no in-network option: the 2025 access rules

New York added behavioral health access standards that took effect July 1, 2025, for commercial plans under DFS and, through an identical Department of Health rule, for HMOs including Medicaid managed care, Child Health Plus and the Essential Plan. An initial behavioral health appointment must be available within 10 business days of the request, or within seven calendar days after a hospital discharge. If the network cannot meet those times, the plan must allow out-of-network care "at the in-network cost-sharing rate".

The rule is written for initial appointments. Whether it reaches a full TMS course is not stated in the materials reviewed, so ask the plan in writing before you rely on it. For what out-of-network care costs and how reimbursement works, see out-of-network TMS reimbursement and what out-of-network psychiatry really costs.

What to expect

Parity law gives patients leverage on transparency and on process. It rarely turns a clear criteria mismatch into an approval. The most reliable path is still a well-documented request that meets the plan's written criteria, with the appeal and external appeal as the backstop. Confirm the current criteria with your plan before treatment, since TMS policies are revised often.

The clinical side of the decision is covered in the physician's guide to TMS, and the TMS therapy page explains how TMS fits into psychiatric care.

Frequently asked questions

Does Timothy's Law mean my plan has to cover TMS?

No. New York's parity law limits how restrictive a plan's mental health rules can be compared with its medical and surgical rules. It does not require coverage of any particular treatment, and it does not apply to self-funded employer plans.

How do I get my insurer's TMS criteria?

Ask in writing. For state-regulated group coverage, Insurance Law 3221(l)(5)(D) requires insurers to make mental health medical-necessity criteria available on request. Federal guidance issued in September 2026 says the same for proprietary guidelines under self-funded plans.

Is the 2024 federal parity rule in effect?

Its new provisions are not being enforced. In May 2025 the federal Departments said they would not enforce them pending the ERIC litigation plus 18 months; the statute and the 2013 rule still apply.

Can I file a parity complaint and an appeal at the same time?

Yes. An appeal challenges the decision on your claim; a DFS complaint raises a possible rule violation. For access problems and appeals, DFS directs you to go through the insurer first.

My employer's plan is self-funded. What can I do?

New York's appeal and parity protections do not apply, but federal parity rules do. Use the plan's internal appeal and the external review process described in your plan documents, and ask the U.S. Department of Labor for help if needed.

Sources

1. NY Insurance Law Sec. 3221 (group mental health coverage). New York State Senate, 2026. nysenate.gov
2. Insurance Circular Letter No. 3 (2007) [Timothy's Law]. NY Department of Financial Services (then Insurance Department), 2007. dfs.ny.gov
3. Statement Regarding Enforcement of the Final Rule on Requirements Related to MHPAEA. U.S. Department of Labor (EBSA), with HHS and Treasury, 2025. dol.gov
4. Field Assistance Bulletin No. 2026-03: Guiding Principles for EBSA's Enforcement of the Mental Health Parity and Addiction Equity Act's Nonquantitative Treatment Limitation Requirements. U.S. Department of Labor, EBSA, 2026. beta.dol.gov
5. Mental Health and Substance Use Disorder Information. NY Department of Financial Services, 2026. dfs.ny.gov
6. NY Insurance Law Sec. 4904 (Appeal of adverse determinations by utilization review agents). New York State Senate, 2026. nysenate.gov
7. File an External Appeal. NY Department of Financial Services, 2026. dfs.ny.gov
8. DFS press release: network adequacy and access standards for behavioral health. NY Department of Financial Services, 2025. dfs.ny.gov
9. Transcranial Magnetic Stimulation and Cranial Electrical Stimulation (CPB 0469). Aetna, 2026. aetna.com
10. Transcranial Magnetic Stimulation (Coverage Policy EN0383). Evernorth Health Services (Cigna), 2026. a.static.cigna.com
11. Behavioral Clinical Policy: Transcranial Magnetic Stimulation (BH803TMS112025). Optum Behavioral Health Solutions, 2026. providerexpress.com

Educational information, not medical advice. Whether TMS or any treatment fits you is a decision to make with a psychiatrist who knows your history.