Clinical Social Work/OPEIU Guild 49 Wins Legal Action Against
State Employees Health Benefits Plan (Horizon BCBS)
Court reverses reduction of out-of-network reimbursement rate
(Wayne, New Jersey) September 5, 2013 -- The New Jersey Society for Clinical Social Work (NJSCSW)/OPEIU Guild 49 has won its legal action against the State Employees Health Benefits Plan (Horizon BCBS) for lowering their rate of reimbursement to out-of-network practitioners back in January 2009.
The NJ State Appellate Division has decided that the lowering of reimbursement rates by the SHBP and Horizon was done in violation of N.J.S.A.52:14-17.46.7.
This means that Horizon BCBS must reverse the reduction in reimbursement rates to LCSW's back to levels before 2009, said Luba Shagawat, MSW, LCSW, F-NAP, the director of legislative affairs for Guild 49. It's taken a long time to get this victory, but we are thrilled that the courts have reversed this injustice and returned the rate to a fair level. It proves the power of a collective voice, and what can be accomplished when workers unite for a common purpose.
The court found that the statute at issue does not authorize the Commission (Horizon) to deviate in any way, including rejecting the Prevailing Health Care Systems usual and customary (UCR) fee schedule, relying on non-nationally recognized database of prevailing health care charges to change that fee schedule, and imposing a percentage rate or condition the statute does not permit. Thus the Commission's decision was arbitrary, capricious and unreasonable and must be reversed.
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The Wellstone-Domenici Mental Health Parity Act of 2008 Passed October 3, 2008
Questions and Answers
1. What does the new federal parity act do?
The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act will end health insurance benefits inequity between mental health/substance use disorders and medical/surgical benefits for group health plans with more than 50 employees.
Under this law, a group health plan of 50 or more employees that provides both physical and mental health/substance use benefits must ensure that all financial requirements and treatment limitations applicable to mental health/substance use disorder benefits are no more restrictive than those requirements and limitations placed on physical benefits.
This means that equity in coverae will apply to all financial requirements, including lifetime and annual dollar limits, deductibles, copayments, coinsurance, and out-of-pocket expenses, and to all treatment limitations, including frequency of treatment, number of visits, days of coverage and other similar limits.
2. What does "mental health and substance use parity" mean?
Mental health and substance use parity means that benefits coverage for mental health and substance use benefits must be at least equal to that coverage provided for physical health benefits. In other words, all of the financial requirements and treatment limitations applied to mental health and substance use benefits may be no more restrictive than for physical health benefits. Historically health plans have applied higher patient-cost-sharing and more restrictive treatment limitations to mental health and substance use benefits than for physical benefits. This new law ends this practice.
3. How is this new law different from the 1996 federal parity law?
The Wellstone-Domenici Parity Act amended and substantially increased the mental health benefits protection afforded under the federal Mental Health Parity Act of 1996, which only required parity coverage for lifetime and annual dollar limits and did not apply to benefits for substance use disorders.
4. When does this new parity law take effect?
The Wellstone-Domenici Parity Act will apply to health plans beginning January 1, 2010. (The effective date for unions is slightly different for labor unions plans pursuant to collective bargaining agreements.) This will give health plans the time necessary to redesign their coverage to come into compliance with the new law. The current 1996 parity law will remain in effect through 2009.
5. Which health plans will apply to the new parity law?
The Wellstone-Domenici Parity Act applies to all group health plans with 50 or more employees, whether they are self funded (regulated under ERISA) or fully insured (regulated under state law), that provide mental health or substance use benefits. About 97 percent of these plans provide some mental health or substance use benefit now.
Those health plans with 50 or less employees that meet state mental health parity requirements will continue to do so. The new law does not apply to the individual health insurance market. Under this new law, 113 million people across the country will have the right to non-discriminatory mental health coverage, including 82 million individuals enrolled in self-funded plans (required under ERISA) to which state parity laws do not apply.
6. Does the Wellstone-Domenici Parity Act appy to Medicare and Medicaid patients?
The new law does not apply to Medicare patients. However, Congress provided for Medicare coinsurance parity for Medicare patients when it enacted the Medicare Improvements for Patients and Providers Act (MIPPA). Currently, Medicare beneficiaries are responsible for paying 50 percent of the approved amount for outpatient mental health sevices but only 20 percent for other services. Under MIPPA, mental health services will enjoy the same 80-20% split in coinsurance by 2014. This phase-in to coinsurance parity for outpatient mental health services begins in January 2010, when beneficiaries will pay 45% coinsurance; the figure drops to 40% in 2012, 35% in 2013 and 20% in 2014.
The Wellstone-Domenici Parity Act, however, does apply to Medicaid managed care health plans. Medicaid enrolees in these plans will have better access to mental health and substance use services once the new parity law takes effect.
7. What diagnoses are included for parity protection?
Just like the Mental Health Parity Act of 1996, the Wellstone-Domenici Act covers all diagnoses for mental disorders. It goes beyond the 1996 Act and some state parity and mandated benefit laws by also requiring parity for substance use disorders. There are no exclusions. In effect, whatever a plan covers must be at parity.
As in the current system, a health plan may deny coverage based on medical necessity or under the terms of its coverage contract with an employer just as under the 1996 Act. It is important to note, however, that health plans have not dropped coverage of diagnoses or services as a result of the 1996 Act or of enactment of the many state parity laws.
8. Can a diagnosis be excluded from coverage under the new law?
Though employers are not prohibited from dropping coverage for a diagnosis, experience suggests that this will not happen. The Parity Act broadly defines mental health and substance use disorder benefits to mean benefits with respect to services for mental health conditions and substance use disorders, as defined under the terms of the plan and in accordance with applicable federal and state law.
Most plans in the market today provide for comprehensive coverage. Such coverage will continue under this new law, and Congress will be closely watching the impact of the new law on coverage of diagnoses. The new parity act requires the US General Accounting Office (GAO) to conduct a study that analyzes the specific rates, patterns and trends in coverage, any exclusion of specific mental health and substance use diagnoses by health plans, and the impact of this Act on such coverage and costs. GAO will provide a report to Congress within three years (and an additional report after five years) on the results of these studies.
9. Does this new parity law have any impact on benefits management and medical necessity criteria?
Just as under the 1996 Mental Health Parity Act, under the Wellstone-Domenici Parity Act, a health plan may manage the benefits under the terms and conditions of the plan. The new law goes beyond the 1996 law by requiring a plan to make mental health/substance use disorder medical necessity criteria available to current or potential participants or beneficiaries on request or as otherwise required.
10. Does the Wellstone-Domenici Parity Act apply to the out-of-network (OON) services that I provide?
Yes. Under the new law, if a health plan provides both OON physical and mental/substance use disorder benefits, these services must be provided at parity. If a plan currently provides only OON physical benefits, this new law will require it to add OON mental health/substance use disorder benefits, at parity.
A few health plans, typically referred to as "closed panel or staff model" HMO's, do not provide for any OON coverage. Since these plans do not provide OON physical coverage, they are not required to provide OON mental heath/substance use coverage.
11. How will the new parity law financially help patients who use OON providers and can we continue to "balance bill" for OON services?
Patients choosing mental health providers out-of-network will see that their health plan pays a greater portion of the cost.
12. Will the new parity law financially help patients who use network providers?
Yes. Patients who use in-network services will benefit from the new law as well. For example, if an in-network plan payment for psychotherapy services is currently 50 percent, while the plan payment for physical health services is 80 percent, the new law will require the plan to incease the psychotherapy payment to 80 percent.
13. Does the Parity Bill have an impact of reimbursement?
No. Reimbrsement rates for services rendered by network providers are negotiated by the health care plan. The law does not address reimbursement rates.
14. Will health plans drop their OON coverage completely to avoid the new parity law?
No. Dropping Out-of-network (OON) coverage is not a viable option for a health plan. A plan now providing OON services, would have to fundamentally restructure itself into a closed-panel plan that does not offer any OON services, either for physical or mental health benefits. Plan enrollees expect choices and options in choosing their service providers, and the cost of meeting the new parity requirement is low. Taken together, enrolees dissatisfaction and the cost associated with such a fundamental restructuring would far outweigh the very low cost associated with simply complying with the new parity law.
15. Can Health Plans Drop Mental Health and Substance Use Benefits Completely In Order to Avoid the New Law?
The Act does not require a health plan to provide mental health and substance use benefits. But if the plan does provide such coverage, it must be at parity with physical health coverage. Health plans are not going to drop this coverage to evade the new parity law.
The 2006 Kaiser Family Foundation Annual Survey of Benefits showed that 97 percent of plans already provide mental health and substance use benefits. It is now well accepted that mental health and substance use treatments are an integral part of treating most medical conditions. Effective treatment of most illnesses like diabetes, asthma, and congestive heart conditions requires a full recognition and treatment of co-morbid mental health and substance use disorders.
The Congressional Budget Office (CBO) has estimated that the Parity Act will raise health lns. premiums by an average of about 0.4 percent, to be split between employers and their employees. Due to this very low cost, health plans will continue to provide mental health and substance use benefits - now at parity- and make minor benefits adjustments throughout the plan benefit to make up this very slight cost.
16. My state already has a parity law. How will this new federal law affect the state law?
Forty-three (43) states have enacted parity laws. While some of these laws provide for strong parity protections, most are not as comprehensive as the new federal law. Nevertheless, the Wellstone-Domenici Parity Act is extremely protective of the state law, since the Health Insurance Portability and Accountability Act (HIPAA) of 1996 preemption standard applies. This HIPAA preemption standard has applied to the federal parity law since 1996 and will continue to apply under the new law
Under the standard only a state law that "prevents the application" of federal law is preempted. This means that if a provision in a state parity law provides for less protection than the federal law, it is preempted. If the state law provides for more protection than the federal law, it is not preempted. In essence, the Wellstone-Domenici Parity Act is a "floor" from which states may provide for greater protection.
17. Overall, how will the Parity Act affect my practice?
Beginning January 1, 2010, under the new parity law more patients in employer health plans in need of mental health and substance use treatment will be better able to afford the treatments that we provide. With mental health and substance use benefits coverage equalized with physical benefits under the new law, treatment will no longer be cut off due to arbitrary financial requirements or visit or other treatment limits.
Unless a diagnosis is specifically not covered by a health plan, the new law provides for parity coverage for all diagnoses. As under the 1996 law, a health plan may exclude a diagnosis under the terms and conditions of the plan. However, experience has shown that health plans are unlikely to drop coverage for diagnoses due to the new law.
While health plans may continue to manage benefits, patients and providers will benefit from the greater access to information about plan medical necessity criteria and reasons for payment denials that the law requires.
The Wellstone-Domenici Act mandates that a health plan must provide OON mental health and substance use services at parity when it provides OON physical health services. This means that patients will have greater access to the OON services that we provide. With equalized financial requirements and treatment limitations, the new law also promotes the use of in-network services.
Under parity, a clinical social worker is free to continue to develop her/his practice and business model. Whether the clinician is a network provider, accepts out-of-network patients, or seeks only non-insured private pay patients, his or her practice will benefit from the overall increased affordability of mental health services, the equal treatment of services, and the reduction of stigma and discrimination for those needing care.
18. Where can I take a look at the bill myself?
The bill can be found at www.thomas.gov.
19. How will the new parity law be enforced?
As with the 1996 parity law, the US Department of Labor (for ERISA-regulated health plans), Health and Human Services (for all other health plans) and Treasury (for tax penalties for non-compliance) will jointly enfore the law. Prior to January 1, 2010 enforcement date, these departments will be creating a regulation to enforce the law.
White Paper on Health Care Reform
The executive summary of Sen. Baucus’s white paper on health reform, in case you haven’t yet seen it is now available on the Finance Committee website at:http://finance.senate.gov/healthreform2009/home.html
Report from the Mental Health Liaison Group Subcommittee on Privacy
February 3, 2008 Washington, DC
The first six months of 2008 could determine whether individuals, including those in need of, or receiving, mental health care will continue to have a right to health information privacy. That right which has traditionally been recognized under Constitutional law, the psychotherapist-patient privilege, other federal and state laws and standards of professional ethics, could be extinguished by the authorization of a national electronic health information system that does not contain basic privacy protections.
If such legislation is enacted by Congress, the efforts to improve access to effective mental
health care through parity legislation and other measures, could be undermined. Intensive efforts to pass such legislation on the Senate's unanimous consent calendar were made by Senators Kennedy (D-MA) and Enzi (R-WY) and others in 2007. Those efforts will continue in this year and are likely to be most intense in the first half of the year. In addition, House Speaker Pelosi and others in the House have made enactment of health IT legislation, perhaps with at least some level of privacy protections, a priority.
In the last session, the MHLG sent a strong letter to Senate Majority Leader Reid and Minority Leader McConnell opposing the enactment of the Wired for Health Care Quality Act (S. 1693) unless it contained a minimum of the following four privacy protections:
acknowledgement that patients have a right to health information privacy;
a right of consent for the disclosure of identifiable health
information in routine situations;
notice to the patients when their right to health information privacy is breached; and
strong enforcement measures for violations of the patient's right to privacy.
The Privacy Subcommittee of the MHLG worked intensively to ensure the act did not pass without including these protections. The American Medical Association and numerous specialty groups as well as a coalition of 48 consumer associations spanning the political spectrum also opposed the Wired act for its lack of privacy protections among other reasons. Senators Leahy (D-VT) and
Snowe (R-ME) with the tacit support of others blocked repeated efforts by the Wired Act's sponsors to push it through the Senate without strong privacy protections.
This session, we have been informed that efforts will continue to be made to pass the Wired act without privacy protections. Fortunately, we have also been informed that our allies in the Senate intend to continue to stand with us in insisting that privacy protections be included.
No health IT bill moved in the House last session although, Congresswoman Eshoo (D-CA) has introduced the House version of the WiredAact. The MHLG Privacy Subcommittee has been working with Congressman Markey (D-MA) to develop a comprehensive health IT and privacy bill that will include all of the privacy principles supported by the MHLG in its July 2007 letter. We expect that bill to be introduced soon.
Congresswoman Capps (D-CA) has introduced the Medicare Electronic Medication and Safety Protection (E-MEDS) Act (H.R. 4296) that would provide some additional Medicare payments for physicians who use e-prescribing as provided in section 1860D-4(e) (the Medicare part D prescription drug program) and penalties in the form of reduced reimbursement for physicians who do not use e-prescribing. The bill does not contain any privacy protections, and the Medicare part D provision it incorporates calls for the electronic transmission of the patient's entire medical history without notice to the patient or an opportunity to object. Congresswoman Capps' staff has asked for the views of the mental health community on this bill.
Interested organizations should contact members of Congress and educate them about the importance of preserving the patient's right to health information privacy in preserving access to effective mental health care. It will be important to emphasize, as the MHLG letter does, that health IT has the potential for great good or unprecedented harm. It is important for members of Congress to understand that a national electronic health information system creates the potential, for the first time in the history of medicine to:
A) improperly disclose the entire health record of millions of individuals with the punch of a button;
B) to improperly disclose an individual's confidential health record to millions of others;
C) to permit the theft or corruption of medical records by individuals from anywhere in the world without having physical access to the records; and
D) to breach an individual's health information privacy in a manner that it can never be restored.
So the need for recognizing and protecting the patient's right to health information privacy, and particularly mental health privacy, is greater than with a paper record system.
On the litigation front, the Court of Special Appeals in Maryland issued a major decision in September 2007 holding that a state medical licensure board cannot ignore and override a psychiatric patient's constitutional right to privacy and the psychiatrist's ethical standards in conducting an investigation of a complaint by a third party. Maryland State Board of Physicians v. Eist, 932 A.2d 783 (Md. App. 2007). The state's request for review by the Maryland Court of Appeals (the highest court in Maryland) was granted, and the case will be heard in April of 2008. More than 40 mental health practitioner and consumer organizations have agreed to sign on to an amicus curiae (friend of the court) brief urging the court to affirm the lower court decision.
I would be glad to answer any questions or provide further information.
American Psychoanalytic Association
Powers, Pyles, Sutter & Verville, P.C.
1501 M Street NW
Washington, D.C. 20005
Agreement Reached in House-Senate Talks (Parity Alert #63)
From the time that the House passed its version of the parity bill, H.R. 1424, in early March (the Senate passed its version, S. 558, last September), the two chambers have been engaged in intense negotiations to reconcile differences between the two bills.
The final gap between the Senate and House bills was closed as negotiations led to agreement over three key outstanding issues:
Preemption. The House accepted the stronger Senate language, which defers to the current HIPAA standard. This standard is extremely protective of state law, ensuring that stronger state parity and other consumer laws will remain in place.
Out-of-Network Services. The Senate accepted the stronger House language that makes clear that out-of-network mental and substance use disorder services will be provided at parity when a plan provides out-of-network physical health services.
Covered Services. The House agreed to drop mandated coverage for all DSM diagnoses but ensured that all mental health conditions and substance use disorders would be covered by mirroring the standard for mental health under the current federal parity law.
Together, we have worked for the better part of a decade to end mental health and substance use benefits discrimination. This tremendous breakthrough would not have been possible without the tireless perseverance and dedication of national organizations and grassroots activists across the country who have advocated year after year on behalf of patients facing insurance discrimination.
When enacted the new federal parity law will:
Completely end insurance discrimination against mental health and substance use disorder benefits for over 113 million Americans, requiring full parity coverage with physical health benefits.
Extend to all aspects of plan coverage, including day/visit limits, dollar limits, coinsurance, copayments, deductibles and out-of-pocket maximums.
Preserve strong state parity and consumer protection laws while extending parity protection to 82 million more people who cannot be protected by state laws.
Ensure parity coverage for both in-network and out-of-network services.
We will soon get back to you with further details on the bill and the process ahead. Congratulations to all of you!
We are pleased to announce that the Senate and House negotiators have reached a historic agreement on the terms for a final full mental health parity bill. The compromise is expected to move quickly through both chambers.