History is not meant to be rewritten or erased. It is yesterday. It is the past. We are to live in the present. We are to learn from the lessons, the triumphs and the mistakes of the past. If we erase it or eradicate it, we are rewriting the past or selectively choosing what is to remain in history which collectively is all part of life’s lessons. It is not within human power to rewrite time. Yes, we must heal from the past, but rather than focusing on the past, we must learn to forgive and move forward. In times of such great change and turmoil we must stay present, we must be positive and we must remain hopeful. We must continue to be the beacon of light leading the way for reformative transformation for what we believe is good and how we want all people to be treated fairly and with justice.
Our field long understands these injustices. Persons suffering from alcohol and other drug addiction have been marginalized and discriminated against by the insurance industry, the criminal justice system, main stream health care, the housing and zoning markets, employers and certainly by our very own elected federal and state leaders by failing to allocate adequate resources or pass fair laws protecting and enforcing patient and provider rights. It is time for the tides to change and for the scales of justice to be equalized for the behavioral health care field.
You need your health to not only survive but to thrive and to experience joy. Health is not just physical health, but more importantly involves mind, body and spirit for complete wellness. This is why the behavioral health system is and will be the key to unlocking human wellness for the entire health care delivery system. To support this behavioral health system, a number of insurance reimbursement and other policy issues need to be addressed and fixed at the federal level. As a practicing health care attorney in the behavioral field for 30 years, I believe these issues are:
- Require Uniform Health Insurance Cards
There is no single form of an insurance card that contains relevant information to discern the type of plan and which law governs benefits, external review protections and rights of appeal, appropriate phone numbers to contact for payments and authorizations if required. Congress should implement a single identifier for health plans so that a uniform format and information can be given to patients. This will ensure that plans have clearer access to benefits and enable them to more easily pursue appeals.
- No More Stringent or Additional Requirements
No health insurer should be able to impose more stringent clinical or professional staffing requirements that are mandated by applicable state law or regulations. Plans often impose higher requirements which are often not required in subacute levels of care. They make up requirements or cite to inapplicable Medicare standards and fail to follow existing state laws or plan documents. Additionally, every insurance plan has separate requirements for credentialing and contracting. If the provider meets licensing and accreditation standards, the federal parity law should prohibit additional network criteria.
- Price Transparency
Plans should be required to quote up front during the verification of benefits process the plan document reimbursement provisions and be held to those quotes. This will enable the provider to determine if it chooses to accept that amount and allow the patient to determine if he or she is willing to accept any additional financial responsibility based on the quote for benefits. If you can get a quote for a car, why can’t you get a quote for what your insurance will cover for treatment?
- Third Party Pricing Regulation
Minimum federal standards should be established regulating the wild west of third party pricing vendors. These vendors negotiate pricing and deep discounts after the fact on behalf of insurers, plans and employers after the services are rendered and authorized. Providers want to be paid and are placed in difficult positions of trying to chase after payment. It is akin to good old fashion “extortion” to negotiate discounts after the fact. This leverage is inappropriate and should be illegal. Some of these provisions could be addressed with the Eliminating Kickbacks in Recovery Act (EKRA) but need to go further.
- Standardize Medical Necessity Language
The diversity of medical standards which dictate medical necessity determinations are a complex issue in the substance use disorder treatment industry. Insurers often implement their own standards for determining medical necessity. Congress should implement ASAM as the national standard for determining medical necessity for substance use disorders and convene a working group to determine a national standard for mental health disorders rather than continuing to allow states or plans to determine the criteria. This is especially important because of the diversity of plans in the “universe” many of which are not protected by various state insurance laws and must be covered under federal law.
- Eliminate Cost Sharing Requirements
Cost sharing requirements (such as co-pays and deductibles) serve as access barriers, confuse reimbursement for patients and providers, and duplicate monies the plans already receive in billions of dollars in ACA cost sharing risk adjustment payments. These requirements further complicate the system for consumers only to enrich the plans. The insurance industry recently won their court case and has billions of dollars about to be funneled into their pockets. These amounts serve to further complicate the accounting and reconciliation of what the patient owes and how much the plan should be paying to the provider.
- Apply Parity Requirements to All Plans
Parity requirements should apply to all health insurance plans including all Medicaid and Medicare plans to ensure that all patients’ rights are protected.
- Prohibition on Payments to Patients
Twenty-seven states have instituted limits on payments to patients. When payments are made to patients and the patient is required to pay the provider, the provider does not get paid. These state statutes enable patients to authorize payments to be made directly to providers; however they are not nation-wide and are not consistently applied to all types of providers. We recommend standardizing these statutes because the current situation fosters financial distress for providers and places the patients at risk of temptation for use.
- Prohibition on Cross Plan Offsets
The practice of cross plan offsetting raises serious fiduciary issues, especially when self-funded ERISA plans are involved in the offset. ERISA prohibits a fiduciary from using plan assets for its own self-interest or for any purpose other than providing benefits and defraying reasonable administrative expenses (29 USC § 1103(c)(1) and (29 USC § 1106(b)). With regard to health plans, ERISA fiduciaries must prudently select and monitor service providers and follow plan terms, among other duties. Cross plan offsetting should be prohibited across all plans.
- Remove Prior Authorization and Barriers to Care
The federal Parity Act together with its broader application through the Affordable Care Act, mandates that the “financial requirements and treatment limitations that apply to MH/SUD benefits cannot be more restrictive than the predominant requirements and limitations that apply substantially to all of the medical/surgical benefits”. Utilization review (“UR”) policies, processes, and practices are among the most critical areas of payer operations that must be addressed to achieve compliance with the parity requirements. Providers must often go through a rigorous prior authorization and medical necessity review period in order to be able to bill for services which are often not the same for comparable medical services. ASAM Criteria should be the baseline criteria used to determine the plan of care for a patient rather than internal plan requirements.
- Streamline Appeal and Due Process Requirements Across Plans
Knowing the type of plan and the different laws that apply is a major hurdle to pursue parity rights. The inconsistent laws created by lobbyists and applied to commercial plans, Medicare, Medicaid, Veterans, state and municipal plans, church plans, federal employee benefits programs, health insurance marketplace or self-insured plans should have the same appeal rights.
- Create a Provider Bill of Rights
Our health care code laws and regulations create an incomprehensible guide for providers and payers to follow. We need to eliminate meaningless laws that cost billions of dollars to administer and comply. Resources should be directed toward the payment of MH/SUD treatment, rather than administrative burdens. There should be a provider bill of rights created that contains protections as part of comprehensive insurance reforms.
- Articulate a Fair Compliance Standard
The current parity comparability test is impossible to prove and is further eclipsed by a medical necessity loophole. The parity law should be revised to adopt a medical loss ratio (“MLR”) designed to objectively measure the behavioral health services delivered to recipients and paid for by health plans. Since the ACA requires the reporting of MLR, no additional burdens exists for plans. Because plans would be required to spend the money on services, they and providers can save billions on the administrative approval and denials structures erected. This MLR standard will provide a concrete threshold for HHS to monitor compliance and failure to meet this threshold should constitute prima facie evidence of a violation.
- Transparency of Denial Codes and EOBs
EOBs contain nonsensical information and inconsistent denials. Denial codes need to be consistent and streamlined and EOBs simplified with basic, comprehensible information. This begins the rights of appeals so this document is critical to protect due process rights. The EOBs should be standardized and simplified across plans with meaningful, accurate information and federal law should hold plans legally accountable for misleading or false information on the EOB or provider summaries.
- Implement Telemedicine Safeguards.
Providers are working diligently to adapt their services during this crisis. The time and effort should be spent determining better ways to render care and engage patients rather than spending time gathering excessive prior authorizations and notifying insurers. Congress should remove prior authorizations and notifications for all telemedicine services for all plans. Additionally, Congress should implement safeguards on privacy and informed consent issues.
- Removal of IMD Exclusion for SUD
The Medicaid Institutions for Mental Disease (IMD) exclusion is an outdated, discriminatory federal rule that creates significant barriers to treatment for adults. Congress should remove this exclusion; it currently violates parity and so many complex exceptions have been created it should just be eliminated.
- Further Integrate SUD Confidentiality Requirements with HIPAA Privacy
Although there have been changes to the confidentiality of SUD treatment records (42 CFR Part 2) additional changes are warranted and proposed regulations are still pending as well as additional regulations required pursuant to the CARES Act. HIPAA and Part 2 should be further integrated and Part 2 embodied within the HIPAA Privacy Regulations so all of Healthcare understands what protections apply to SUD records, under what requirements and the applicable exceptions. All other rules should then be consistent with HIPAA so there are not inadvertent inconsistencies. Congress should require SAMHSA to convene experts to write proposed integrated provisions taking into account the need for electronic health exchange, prescription monitoring databases and central registries, medicated assisted treatment, the need for disclosures among health care providers for treatment, payment, and health care operations, public health reporting issues (especially in light of COVID) and other population health management and case coordination issues to improve health outcomes and patient safety.
- Clarify Section 3221 of CARES ACT
Significant changes were made to the statute governing the confidentiality of substance use disorder records in the CARES Act signed into law March 27, 2020. These changes have an impact on how information is shared but leaves many important details to the regulatory process including the form of consent and enforcement details. Due to the location in a statute designed for immediate aid to individuals and businesses and the unclear applicability, the statute on its face appears to be effective on its face while leaving those necessary details out. Several items in this new law should be clarified including the effective date.
Each of these topics need to be drilled down into greater detail and have specific plans for implementation. One of my commitments to advancing social justice for the field is to invite select Thought Leaders to my new Chicago office to develop legislative, regulatory and media information for federal and state leaders to address these many insurance reimbursement practices. I also welcome an open discussion with the insurance industry. It is time to approach this issue more transparently and engage in proactive and collaborative planning so the providers and plans can honestly move forward and actually equalize the scales of justice for the persons served by the behavioral health industry. It is in both the plans’ and providers’ interest to invest in the wellness of their collective members in order to stabilize and achieve long term recovery and actually save money. We look forward to hearing from Recovery View readers about priority topics you recommend Ingenuity Rising Thought Leaders address.
Book: “Critical Incidents: Ethical Issues In the Prevention and Treatment of Addiction. Available at: https://www.amazon.com/Critical-Incidents-Prevention-Treatment-Addiction/dp/093847510X