Affordable Care Act: July 2012 Update
With the Supreme Court deciding to uphold the Affordable Care Act (ACA) the action moves back to the state level. States are currently required to provide their blueprints for the state health insurance exchanges to the federal government by Nov. 16th. However, Gov. Walker has indicated that he will not take any action on the exchanges prior to the presidential election, only 10 days before this due date. The Wisconsin Council on Mental Health is advising the Governor to bring stakeholders together prior to that time to begin planning. See the WCMH letter here.
While the Supreme Court upheld the law overall it did rule that Congress could not withhold funding for current Medicaid programs if states did not expand their Medicaid programs to cover anyone under 133% of poverty. Without that "stick" the Medicaid expansion is much more discretionary for states, although there is still a big "carrot" of 100% federal funding for the first three years reducing to 90% over time. Compare this to the current federal match rate for Wisconsin of about 58% and the argument for expansion becomes quite compelling.
For additional information on the ACA see the following:
Mental Health America's webpage on health care reform
Take Advantage of New Opportunities to Expand Medicaid Under the Affordable Care Act, Bazelon Center for Mental Health Law
Expanding Wisconsin's Medicaid Program will Save Money, Community Advocates
A critical piece of health care reform as spelled out in the Affordable Care Act (ACA) is the definition of essential health benefits (EHB) that will be required for plans offered through the health care exchanges developed under the Act. EHBs are mandated in 10 areas including mental health and substance use disorders (MH/SUD). The ACA made clear that for MH/SUD plans must provide these services and provide them at parity with other benefits. This is an important development because the exchange will serve small businesses that are not now required (by federal law) to provide MH/SUD at parity.
In December the federal Department of Health and Human Services (HHS) released a Bulletin on Essential Health Benefits.This is not a proposed regulation but rather a discussion of what HHS has found regarding typical coverage in the areas for which EHBs are required and a proposal to provide States flexibility to define EHBs based on benchmark plans in their own state. Essentially the State can choose from a number of the largest small group, large group or federal employee health benefit plans offered in their state in defining the EHB package.
MHA has provided comments on this proposal. To a large degree our comments center on the need for HHS to provide more guidance or regulation regarding MH/SUD parity. The interim regulations issued in 2010 did not adequately define the scope of services that plans must provide (for instance are services such as residential treatment for substance use disorders or community support programs for adults with serious mental illness among the services that need to be provided) nor did they address what parity means for non-quantitative treatment limits (for example, prior approval requirements; as opposed to quantitative treatment limits such as number of visits or limits on the amount of money that can be spent on MH/SUD services).
While challenges to the ACA will be heard by the U.S. Supreme Court this Spring with a ruling that could impact implementation of the ACA expected in early summer, it is important to continue to be aware of and comment upon proposed regulations and policy should implementation go forward.
The Department of Health and Human Services (HHS) has issued a list of FAQs to provide additional guidance on HHS's intended approach to defining Essential Health Benefits (EHB). Among other things, the document contains further information about the process of selecting and updating a benchmark, States' responsibilities with respect to State-mandated benefits, and the application of benchmarks to plans that have enrollees in multiple States. The FAQs can be found at http://cciio.cms.gov/resources/files/Files2/02172012/ehb-faq-508.pdf.
Parity is the Law of the Land
After many years of hard work parity is now the law of the land at both the federal and state level in Wisconsin. But in order for people living with mental illnesses and addiction disorders to receive the full benefits of the laws, the laws must be implemented as envisioned by Congress and the Wisconsin State Legislature. This requires that consumers, family members, advocates and providers all understand what the laws require and what to do if you think they are not being implemented correctly.
This webpage provides information about the state and federal laws, how they interact, consumer rights and expectations under the law and what to do if you think someone is not receiving the services to which they are entitled. We also have a section on resources for employers on implementing parity in their health plans.
Wellstone-Domenici Mental Health Parity and Addication Equity Act
The Federal Regulations | The Wisconsin Parity Act | Making Parity Real
Office of the Commissioner of Insurance
The Wellstone-Domenici Mental Health Parity and Addiction Equity Act
The federal Wellstone-Domenici act was passed by Congress on October 3, 2008 and went into effect with new health plans starting October 3, 2009. Wellstone-Domenici applies to all health plans for employer groups of more than 50 employees; including those that self-insure (self-insured private companies cannot be regulated by state law).
The Federal Regulations
Wellstone-Domenici required the responsible federal agencies to develop regulations to define many of the terms used in the law and provide more specific guidance on how the law is to be implemented. The interim final rule was published in the federal register on Feb. 2, 2010.
See the regulations as published in the federal register (Then enter 'mental health parity' in the search box.)
The regulations are very important because they were written in such as way as to limit the ability of health plans to treat mental health and substance use disoders more restrictively in a variety ways; not just based on copayments or visit limits. For instance the regulations require the non-quantitative treatment limits be no more restrictive for MH/SA disorders than for other conditions. This would apply to how standards for medical necessity are applied and how inpatient treatment stays are reviewed and approved. The rules also make clear that separate but equal deductibles for MH/SA services are not acceptable.
The Wisconsin Parity Act
On April 30, 2010 Governor Jim Doyle signed 2009 WI Act 218, the Wisconsin Parity Act. This bill fills in part of the coverage gap left by Wellstone-Domenici. Specifically it:
- Requires that health plans for employer groups of 10 or more provide MH/SA benefits at parity, using language following federal law.
- For employers covered by the Act (those who are commercially insured, not those who are self-insured) it requires that MH/SA benefits be provided. Federal law allows plans to choose not to provide MH/SA coverage but requires parity if these benefits are provided.
- Incorporates the federal cost increase exemption language.
The Act gives Wisconsin some of the strongest parity language in the country.
Information about other state parity laws
Because the federal and state laws have somewhat different requirements and somewhat different scope this grid may be helpful in understanding which laws effect you depending upon your employer group size and type of health plan.
Making Parity Real
In order to ensure that people are receiving the benefits to which they are entitled it is important that insured individuals examine their statement of benefits in the member handbook of their health plan policy. This document, developed with regard to the federal law, can assist in knowing what to look for: Assessment Tool
Because this tool was developed for use with the federal law you need to ask one additional question: are MH/SA services covered. If your employer purchases commercial insurance than it must include coverage for MH/SA services.
Appeals/Complaints: If individuals believe their plan does not comply with the requirements of the law they should first contact their health plan. There may be additional information that is not contained in the statement of benefits or other factors impacting the coverage. If it still does not appear that the plan is in compliance ask whether there is an appeal process to bring this to the plan's attention. Sample appeal letter
Medical Necessity: A specific type of problem likely to be encountered in making parity real relates to medical necessity determinations. While plans cannot establish more restrictive limits on MH/SA services they can still utilize medical necessity as one factor in determining whether they will authorize services and at what level. And while the regulations clarify that medical necessity cannot be applied in a more restrictive manner for MH/SA services than for other conditions the fact that this is a somewhat more subjective area may make it ripe for abuse. The regulations also seem to suggest that plans must use accepted criteria for medical necessity, but they do not fully explain how this is to be determined. Sample medical necessity letter
One thing the rule is clear about is that plans must make their medical necessity criteria available to planholders and that they must provide planholders with information about denials due to not meeting medical necessity guidelines. Individuals can use the templates above to request information from their health plans about medical necessity.
Parity Toolkit for Addiction & Mental Health Consumers, Providers & Advocates.
Simplifying the appeals process: strategies for winning disputes with your health plan. This toolkit is designed to be a resource in how to better communicate with plans; how to ably prepare and document information should disputes arise with a health plan over coverage or reimbursement; and how to better understand your basic appeals rights and procedures.
Office of the Commissioner of Insurance
The Office of the Commissioner of Insurance has responsibility for ensuring that health plans comply with both the federal and state laws. You may file a complaint with OCI if you believe you are not receiving the benefits to which you are entitled. Use this link to file a complaint online.
You may also call the complaints and information toll-free number at 1-800-236-8517 (within Wisconsin) or 1-608-266-0103 (outside of Wisconsin) or send an e-mail message to firstname.lastname@example.org.
According to their website, this is what will happen after a complaint is filed:
A copy of your complaint will be sent to the company or agent with a request to respond directly to you and to advise the OCI of the action taken. You should hear from the company or agent in about 25 days from the date you send your complaint.
When the information is received from the company or agent, OCI will review the file to determine what action can be taken. You will be notified of the determination.
If the OCI is unable to obtain the resolution you desired, you may consider contacting a private attorney for advice. If your complaint involved a claim dispute, you may want to contact your county's small claims court.
OCI also manages an independent review process. This process may be particular helpful in cases where service is being denied due to medical necessity. According to OCI:
The independent review process provides an opportunity to have medical professionals who have no connection to your health plan review your dispute. You choose the IRO from a list of review organizations certified by OCI. The IRO assigns your dispute to a clinical peer reviewer who is an expert in the treatment of your medical condition. The clinical peer reviewer is generally a board-certified physician or other appropriate medical professional. The IRO has the authority to determine whether the treatment should be covered by your health plan. More information including how to initiate this process.