HHS Office of Inspector General 2015 Workplan Includes Review of Network Adequacy

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.

Provider ERISA Claims

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.