Psychologists, psychiatrists and other behavioral health providers are now trying to get deeply into the inner recesses of the minds — of the people who decide whether or not their services are medically necessary.
The dispute could be enough to fill some health insurance agents and brokers with anxiety.
Regulators at the U.S. Department of Labor, the U.S. Department of Health and Human Services (HHS), and the U.S. Treasury Department set off the war over medical necessity disclosure earlier in November 2013, when they drafted a set of answers to frequently asked questions (FAQs).
The batch of FAQ answers — PPACA FAQ answers Part XVII — deals with how implementation of the Patient Protection and Affordable Care Act of 2010 (PPACA) meshes with implementation of another major health reform law, the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA).
The MHPAEA requires any individual policy or large group health plan that covers mental health services to offer the mental health benefits using the same financial requirements and treatment limitations they use for “substantially all” medical and surgical benefits.
Kathleen Sebelius, the previous HHS secretary, approved regulations that apply the MHPAEA parity rules to individual and small group policies.
In the FAQ Part XVII answers, regulators tried to make the MHPAEA rules more enforceable by requiring administrators of mental health treatment benefits to make the reasons for any benefits denial, and the criteria for deciding whether services are medically necessary, available upon request.
The regulators said the internal appeals and external review provisions in PPACA require plans subject to both PPACA appeal rules and the MHPAEA parity requirements to make all relevant documents and records available to a patient — or a provider acting on a patient’s behalf — free of charge. Regulators said another law, the Employee Retirement Income Security Act (ERISA), requires plans and administrators to provide information on the criteria for decisions about medical necessity within 30 days after the information is requested.
The regulators asked for comments on their answers and have just recently posted the comments on the Web.
Provider and patient groups fear the medical necessity disclosure rules are too lose.
Insurers and mental health benefits managers worry the rules will be a nightmare for the plans and administrators.
For more about some of what the commenters said in their comments, read on.
1. The insurers and administrators wonder how much time and money they’ll have to spend opening windows onto their decision-making processes.
Pamela Greenberg, president of the Association for Behavioral Health and Wellness (ABHW) — wrote to say members of her group believe regulators expanded the MHPAEA when they set out MHPAEA medical necessity disclosure requirements in the MHPAEA final rule.
The ABHW represents many major behavioral health plan companies, including the behavioral health units of Aetna, Cigna and UnitedHealth.
The companies fear that they may suffer from an enormous administrative burden if they have to release complex, proprietary medical necessity criteria information for all of the many different plans they operate, Greenberg says.
The ABHW says regulators may be able to help the behavioral health benefits companies by limiting the scope of the disclosure provisions and working with accreditation companies to develop widely accepted disclosure standards.
“Individuals could, for purposes of determining parity compliance with the disclosure requirements, simply check with the accrediting bodies to ascertain whether their health plan was in compliance instead of requesting a multitude of complex technical documents and attempting to make the compliance determination themselves,” Greenberg says.
2. Care providers worry the benefits companies will use “proprietary information” as an excuse to slam the door in their face.
Katherine Nordal, an executive at the American Psychological Association Practice Organization, says her group has run into some carriers that refuse access to medical necessity criteria by saying they have bought the criteria from an outside vendor.
The MHPAEA disclosure provision, Section 512, “contains no exception for proprietary criteria,” Nordal says. “If it did, companies could nullify this important transparency provision by all switching to proprietary medical necessity criteria.”
3. Patient and provider groups say the benefits companies should give medical necessity information to all actual and potential patients, not simply to patients affected by benefits denials.
Nordal notes that MHPAEA Section 512 requires the benefits companies to provide medical necessity criteria information “to any current or potential participant, beneficiary, or contracting provider upon request.”
“Providing criteria only when the company has denied coverage and/or providing only the criteria used to evaluate a coverage decision flies in the face of the requirement that medical necessity criteria be given to potential plan participants, beneficiaries or providers who request them,” Nordal says.
The benefits companies argue that forcing them to release too much information could help providers who want to game the system and collect payments for services that are not medically necessary.
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4. Patient and provider groups want strict rules on how quickly plans must provide the medical necessity criteria.
Laura Goodman talks about the time issue in a letter filed on behalf of a group that includes a number of Massachusetts organizations, including the Massachusetts chapter of the National Alliance on Mental Illness and Boston Children’s Hospital.
She says the groups want regulators to apply ERISA disclosure timeliness rules to the individual policies and small-group plans that now must comply with the MHPAEA parity rules.
“Large group health plan administrators are required to provide health plan members with copies of health plan information, at no charge, within 30 days of the request,” Goodman writes. “And, if health plans fail to provide the requested information within thirty days, plan administrators are subject to a penalty of up to $100 per day until the requested information is furnished. We encourage the departments to establish a similar disclosure requirement for health plans subject to MHPAEA. For example, if a health plan member makes an oral or written request for health plan information relating to the coverage of mental health and/or substance use disorders, the health plan must provide copies of all of the requested information within 30 days or else be subject to a monetary penalty of not less than $100 per day that the information is not provided.”