As mentioned in a previous blog post, one important and evolving issue is the ability of treatment programs to pursue claims for MHPAEA claims in court on behalf of their patients. There is a helpful recent (April 10) decision out of the Central District of California that confirms a healthcare provider’s standing to pursue ERISA claims. (This is the same thing as a right to pursue claims for MHPAEA violations, because MHPAEA’s requirements are incorporated into ERISA.) Almont Ambulatory Surgery Center, LLC v. Unitedhealth Group, Inc., 2015 WL 1608991 (April 10, 2015). The provider’s standing was premised on standard benefit assignment forms that should be part of any patient’s file.
I just reviewed the National Association of Medicaid Directors’ April 6 press release on the proposed MHPAEA CHIP/Medicaid rules (available here). It is heartening to see NAMD’s recognition that Medicaid has “quietly become the largest payer of mental health services in the country, in part because other payers have been able to shift these costs onto the safety net.”
“Other payers” is of course just a nice way of saying “commercial managed care companies”, and “the safety net” is another way of saying “the public”. Commercial managed care companies Other payers have been getting away with this cost shifting for years. There are analytical tools that can capture many key components of the cost shifting that results from unlawful managed care conduct (a category that now includes MHPAEA violations), and there are readily available legal tools that would allow many public funders to recover those shifted costs from commercial managed care companies other payers. Seems to us that any meaningful MHPAEA enforcement strategy would include consideration of these cost recovery tools.
Delighted to see proposed MHPAEA rules for Medicaid and CHIP. They are available here. Still working through them, but on the whole definitely more good news than bad.
At the moment these are only proposed rules, and we do not know when interim final rules or final rules will be issued. So now seems a good time to point out that enforcing federal laws does not require the presence of final rules or even interim final rules. MHPAEA has been a requirement for CHIP plans (or at least CHIP plans that provide mental health and mental health/substance use disorder benefits) since at least 2009. And CMS acknowledged that MHPAEA applies to certain Medicaid plans back in 2013. (The CMS letter confirming this is here.)
We must not forget the frustrating history of the MHPAEA final rules. Five years passed between the passage of MHPAEA and the issuance of final rules, and many (incorrectly) assumed that vigorous enforcement had to wait for final rules. There was no need to wait for the core MHPAEA final rules, and there is no need to wait for the Medicaid and CHIP final rules.
There is a lot of evidence that CHIP and Medicaid plans have routinely violated MHPAEA in recent years, and far too little has been done to enforce MHPAEA or address those violations. Let’s not let the proposed rules become an excuse for further delay. We don’t need final CHIP/Medicaid rules to vigorously enforce this law!
Keeping a close watch on American Pyschiatric Assoc. v. Anthem Health Plans, No. 3:13CV494 (D. Conn.). In that case, the American Psychiatric Association, along with some physicians and individual plaintiffs, brought fairly broad-based challenges to Anthem’s and Wellpoint’s reimbursement policies. According to the plaintiffs, the defendants violate MHPAEA because they “generally reimburse psychiatrists less than they reimburse non-psychiatric physicians” and “impose onerous administrative requirements on psychiatrists.” American Psychiatric Assoc., 2014 WL 4823875, Slip op. at *2.
The plaintiffs’ claims were dismissed in September. In a nutshell, the Trial Court found that the plaintiffs did not have standing to bring their claims. The Court’s decision has a lot of detailed analysis of some fairly intricate standing principles, but I wonder whether the decision isn’t really driven by a judicial reluctance to tackle such a broad array of challenges in one case. Courts are pretty comfortable addressing specific legal violations. But asking an individual judge to systematically rework reimbursement policies is a pretty heavy lift. Consciously or unconsciously, many judges will simply not feel comfortable playing that role.
There is an important lesson here for MHPAEA enforcement. We need to focus on clear, discrete violations that we can prove in a straightforward way, and seek remedies from courts and regulators who are in a position to provide those remedies. Trying to fix all the world’s problems in a single litigation blow is not likely to be productive, and (even worse) is all too likely to create some unfavorable decisions that we will all have to live with.
In other words, let’s play some small ball. Let’s not try to hit a home run every trip up to the plate.
People ask me all the time whether MHPAEA applies to a particular plan or policy. Fact is, “yes” is almost always (but not always always) the right answer. If you need to look at the issue more closely or come up with something a little more definitive, DOL’s 2013 report on MHPAEA enforcement contains a very helpful table that is a great place to start. Here it is.
The Department of Health and Human Services Office of Inspector General recently released its 2015 Work Plan. This document sets forth OIG’s oversight and enforcement priorities for 2015. That document specifically mentions that OIG’s work in 2015 will include review of network adequacy. OIG “will review Medicaid managed care provider networks and describe the extent to which managed care beneficiaries have access to services.” 2015 Work Plan at 42 (the entire document is available here). “In establishing and maintaining this network, managed care plans must consider the anticipated Medicaid enrollment, the expected use of services, the number and types of providers accepting new patients, and the locations of providers and beneficiaries.” Id.
In other words, network adequacy will be very much in the spotlight in the year ahead.
Providers of behavioral health services and substance abuse services should keep this in mind. All too often, providers are concerned that if they speak up about health plans and insurers that violate MHPAEA, they will jeopardize important business relationships with health plans and insurers. But tens of millions of new Medicaid managed care beneficiaries are coming online, at the exact same time that the adequacy of provider networks is coming under increasing scrutiny. Health plans and insurers need their existing provider networks more than ever, and established, clinically grounded treatment programs are hard to replace.
Providers have more power than they might think, and should keep this in mind when they make decisions about what role they are going to play in MHPAEA enforcement.
A lot of the time, it is patients who pursue appeals and claims when managed care companies fail to pay for health care. Providers support patients and their families by providing general guidance materials on the managed care appeal process and by responding to appropriate requests for information. But these claims are often the family’s fight, not the provider’s.
This does not have to always be the case, though. Providers also have the ability to pursue legal claims against managed care companies.
One common foothold in court is provided by ERISA, a federal law that applies to most employer-sponsored health insurance. The law in this area is complex and evolving; a helpful overview of the current state of the law is found in Spine Surgery Associates v. INDECS Corp., 50 F.Supp.3d 647 (D.N.J. 2014). But the basic point is clear enough: if a provider’s assignment of benefits form is worded right (this is the form that virtually all patients sign when they receive treatment), then the provider has standing in federal court when a managed care company wrongfully refuses to pay for care. ERISA is in many ways a powerful litigation tool (it allows for class actions and attorneys’ fee awards in favor of the plaintiff), and every insurance policy covered by ERISA is required to comply with MHPAEA.
The prospect of a federal ERISA lawsuit (including a federal class action lawsuit) can be an important check on the behavior of managed care companies, even if the power to file such a claim is never actually used. Providers should make sure that their assignment of benefit forms are worded properly, and in a fashion that will support their ability to pursue an ERISA claim in court should the need arise.
Yesterday I was looking at a denial letter from a managed care company that denied coverage for residential addiction treatment for a very sick patient. That letter was wrong in all kinds of ways, and I have a pretty informed hunch that the managed care company will — after a gentle reminder or two — see the error of its ways sooner rather than later. For today’s post I want to focus on the very first of many errors in the letter. The patient was requesting coverage for 21 additional residential addiction treatment days, and yet the letter magically reduced that request to a single day. More precisely, the subject block of the letter — the section that appears before the main text of the letter, and even before the “Dear Patient” line — listed the dates of service as “10/1/2014 to 10/1/2014”. This was a flat-out lie: the patient and his treating clinicians were asking for coverage from October 1 to October 21. I see this kind of calendar sleight-of-hand all the time in denial letters.
This misstatement matters. It tells us that somewhere in the managed care company’s computer system, this episode is recorded as a dispute about a single treatment day, not 21. So if a regulator or private attorney were to ask how many days were denied, the answer would come back 1, not 21. That is a 20-fold decrease in the number of patient days denied! Multiply this across thousands of patients, and you begin to see how this single bit of legerdemain can almost completely conceal the extent of denials.
So today’s takeaway is this: read those denial letters carefully, including the block at the top. And when you demand that the managed care company get its facts straight, be sure to mention any mistakes in the initial block.
This kind of misstatement also has important implications for an insured’s (or a provider’s) ability to seek relief in the Courts through an individual case or a class action. But that is an issue for another day.
When health insurance companies break the rules (for example, when they violate MHPAEA), they can often be held responsible for the harm they cause. In an important way, these claims work as a private enforcement tool. Click here to take a look at an article that I recently wrote addressing health insurance bad faith claims.
MHPAEA’s rule against discrimination applies to both quantitative treatment limitations and nonquantitative treatment limitations.
A quantitative treatment limitation is something like a cap on the number of visits or days of coverage. These violations are fairly easy to spot and address.
Nonquantitative treatment limitations are by definition a broader concept — they include, for example, things like criteria and other utilization management tools. They violate MHPAEA if they are applied in a more restrictive manner for behavioral health than they are for physical health. Discriminatory nonquantitative treatment limitations can be harder to nail down and address, but that does not mean that health insurers can do whatever they want – it just means that patients and providers need to pay careful attention, and maybe do a little more work.
Some medical necessity criteria are discriminatory on their face because they are more restrictive than widely accepted criteria (such as the medical necessity criteria promulgated by the American Society of Addiction Medicine). A health plan is not allowed to just make up an arbitrarily constrained set of rules (unless, of course, they do the same thing for physical health, which is hopefully never the case). To identify these violations, families and providers need to obtain criteria, but that is easy to do, because health plans health plans and insurers are required to provide these documents upon request. In fact health plans and insurers are required to provide not just criteria themselves, but also “the processes, strategies, evidentiary standards, and other factors used to apply a nonquantitative treatment limitation.” 29 C.F.R. § 2590.712(d) (3) (this citation is to Department of Labor MHPAEA regulations; identical language is found in the HHS and IRC regulations). These additional documents can be extremely important — they might include, for example, a flowchart that directs how criteria are to be applied, and does so in a way that means nobody will ever get inpatient behavioral health treatment no matter what the criteria say. Obtaining these documents is often an important first step in any attempt to identify (and eradicate) unlawful nonquantitative treatment limitations.