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!