BAZELON CENTER. The Judge David L. for Mental Health Law. June 9, 2015

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1 The Judge David L. BAZELON CENTER for Mental Health Law BOARD OF TRUSTEES Nikki Heidepriem, Chair Heidepriem & Associates, LLC Anita L. Allen U. of Pennsylvania Law School David B. Apatoff Arnold & Porter Samuel R. Bagenstos University of Michigan Law School Dana Bazelon Defender Assoc. of Philadelphia Eileen A. Bazelon Department of Psychiatry, Drexel Robert A. Burt Yale Law School Jacqueline Dryfoos New York, NY Kenneth R. Feinberg Feinberg Rozen, LLP Howard H. Goldman, MD U. of Maryland School of Medicine Jennifer A. Gundlach Hofstra School of Law Stephen J. Morse U. of Pennsylvania Law School Margaret E. O Kane NCQA Joseph G. Perpich JG Perpich, LLC Harvey Rosenthal NYAPRS Elyn R. Saks USC Gould School of Law Martin Tolchin Washington, DC Sally Zinman Berkeley, CA HONORARY TRUSTEE Miriam Bazelon Knox TRUSTEES EMERITI Mary Jane England Regis College Martha L. Minow Harvard Law School H. Rutherford Turnbull Beach Center for Family & Disability PRESIDENT & CEO Robert Bernstein, PhD Affiliations for informational purposes only June 9, 2015 Andy Slavitt Acting Administrator Centers for Medicare & Medicaid Services Department of Health and Human Services P.O. Box 8016 Baltimore, MD Dear Mr. Slavitt: Re: Proposed Rule concerning Medicaid, Children s Health Insurance Programs; Mental Health Parity and Addiction Equity Act of 2008; the Application of Mental Health Parity Requirements to Coverage Offered by Medicaid Managed Care Organizations, the Children s Health Insurance Program (CHIP), and Alternative Benefit Plans, RIN 0938-AS24 The Bazelon Center for Mental Health Law submits these comments in response to the above-captioned proposed rule. The Center is a national nonprofit legal advocacy organization that promotes equal opportunity for individuals with mental disabilities in all aspects of life, including health care, community living, housing, education, employment, voting, and other areas. We strongly support the proposed rule and believe it is critically important to ensure meaningful enforcement of mental health parity requirements for Medicaid managed care enrollees, alternative benefit plan enrollees, and CHIP beneficiaries. Particularly important are the proposals to ensure that parity for Medicaid MCO enrollees applies to benefits across service delivery systems and that limitations in the state Medicaid plan do not prevent MCO enrollees from receiving mental health and substance use disorder (MH/SUD) services at parity. Contract Requirements ( 438.6): We support CMS s proposal to ensure that Medicaid beneficiaries enrolled in MCOs receive MH/SUD coverage at parity with medical and surgical coverage, including services delivered through MCOs, fee-for-service (FFS) arrangements, prepaid inpatient health plans (PIHPs), and prepaid ambulatory th St. NW, Suite 1212, Washington, DC Phone:

2 health plans (PAHPs). Congress s clear intent in applying the requirements of the Mental Health Parity and Addiction Equity Act (MHPAEA) to Medicaid MCOs was to ensure that enrollees of these MCOs receive covered mental health services at parity with medical/surgical services. If parity requirements did not apply to the services that these enrollees receive through the full range of Medicaid service delivery arrangements, parity would be a hollow promise. Many or all MH/SUD services could simply be carved out of MCOs and delivered through other arrangements, including FFS, PIHPs, and PAHPs. It would be inconsistent with Congressional intent if parity for MCO enrollees could be so easily avoided. We support the proposal that states using non-mco service delivery systems must provide documentation of how the parity rule requirements are met for MCO enrollees. We urge CMS to specify the kinds of documentation that must be provided. CMS requested comments on whether it should require that all state plan MH/SUD services be included in MCO contracts. 80 Fed. Reg. at We believe that would be a problematic solution. As you know, in many states, Medicaid MCOs have experienced significant challenges in delivering the types of intensive mental health services not generally covered by commercial insurance. FFS carveouts and other arrangements for delivering mental health services have often proved critical to ensure that Medicaid beneficiaries receive appropriate mental health services, at least until MCOs can effectively address service delivery challenges. Thus, we agree with CMS s proposal to allow states the flexibility to use FFS, PIHPs, and PAHPs to deliver mental health services and ensure that parity is provided across these delivery systems. We support the addition of 438.6(e) to clarify that where Medicaid MCOs, PIHPs, or PAHPs cover services beyond those covered under the state plan when necessary to comply with parity, states must include those services in determining actuarially sound capitation rates. We urge CMS, however, to change proposed 438.6(e)(3) to say that the costs associated with these services must (rather than may ) be included when determining payment rates. The obligation to provide actuarially sound payment rates is mandatory. Thus, in circumstances where MCOs, PIHPs or PAHPs provide services in addition to the state plan in order to comply with parity (in which case the state has chosen not to amend its state plan to cover services necessary to ensure parity), payment rates must take into account the costs of these services. Meaning of Terms ( , , ): We urge CMS to remove the statement that mental health benefits do not include long-term care services. Many if not most of the core mental health services provided through the Medicaid program are needed by many individuals on a long-term basis including, for example, supported employment, peer support, assertive community treatment, and community support teams. Parity for Medicaid MCO enrollees and ABP enrollees would not be meaningful for people with the most serious conditions if parity did not apply to these services. 2

3 If the statement is retained, CMS should specify which services are considered long-term care. Since state service systems do not typically organize mental health services into categories of long term care and non-long term care, it is not clear which services would be considered longterm care. Since CMS proposes to allow states to define identify which services count as mental health services for parity purposes, it must provide clarity about which such services would be considered long-term care. We urge CMS to provide a non-exhaustive list of mental health conditions that must be included within states definition of mental health conditions. Simply stating that this term must be defined consistent with generally recognized independent standards of medical practice does not provide sufficient clarity and guidance to the states. In addition, CMS should provide a non-exhaustive list of mental health benefits that must be covered by parity. The proposed rule states that a permanent exclusion of all benefits for a particular condition or disorder is not a treatment limitation. CMS should clarify that such exclusions must be consistent with generally recognized standards of medical practice. We urge CMS to add a provision to this paragraph clarifying that regardless of parity rules, states must comply with other requirements that may forbid such exclusions, such as EPSDT and Medicaid s prohibition on diagnosis-specific coverage. Parity Requirements for Aggregate Lifetime and Dollar Limits and for Financial Requirements and Treatment Limitations ( , , , ): We support the clarification, in (c)(4), that MCOs, PIHPs, and PAHPs must meet the cost sharing requirements applicable to Medicaid managed care plans generally. This clarification will help avoid a possible misreading of the law, namely, that the cost-related requirements in this proposed rule supersede pre-existing requirements. CMS should specify what it means to use the same standards for providing access to out-ofnetwork providers. While the proposed rule does not incorporate the provisions of the MHPAEA rule requiring parity within in-network and out-of-network services, it does provide that MCOs, PIHPs, and PAHPs providing access to out-of-network providers for medical/surgical benefits must use the same standards for providing access to out-of-network MH/SUD providers ( (d)(3)). The proposed rule states that a plan complying with the network adequacy requirements of (b)(4) will be deemed in compliance with (d)(3). It is unclear what the purpose of (d)(3) is if it requires nothing more than compliance with existing law. We presume that proposed (d)(3) must mean something beyond what plans are already required to do. 3

4 Tiered Network Design and Nonquantitative Treatment Limitations ( (d), (b)(4), (d)(4)): We adopt the recommendations of the National Health Law Program (NHeLP) to prohibit plans from using tiered network designs with respect to Nonquantitative Treatment Limitations (NQTLs). As NHeLP points out, based on experience with tiered network designs in commercial plans, multiple tiers are likely to confuse beneficiaries and undermine parity by leading them to choose plans that have treatment limitations or financial restrictions of which they are unaware, or leading them to incur unexpected financial liability for mental health services. Because the distinction between different tiers is often unclear to many consumers, tiered designs create risks such as beneficiaries choosing a plan based on the fact that their current providers are covered but then discovering that they are responsible for payment for services because their chosen plan requires prior authorization for providers in a particular tier and their visits were not properly authorized. In addition, as NHeLP notes, consumers and regulators may have more difficulty monitoring tiered network plans compliance with existing protections. These concerns are particularly significant for public benefits recipients, who lack the resources to pay for the consequences of the confusion caused by tiered network designs. Because tiered designs are so complex and have significant potential to undermine the goals of mental health parity, we strongly urge CMS to forbid Medicaid and CHIP plans from using tiered network designs with respect to NQTLs. We adopt NHeLP s recommendation to remove the example at (d)(2)(iii) that allows plans to use multiple network tiers with respect to NQTLs. Availability of Information ( , (c), (e)): We support the proposed requirement that medical necessity criteria must be made available to current and potential enrollees and providers. Rather than requiring that this information be provided upon request, however, CMS should require plans to make it publicly available online. It is appropriate that medical necessity criteria for services furnished with public dollars be transparent and publicly available. In addition, CMS should require that current enrollees be furnished with the medical necessity criteria for any service that they request, especially if their request is denied. In addition, plans should be required to provide medical necessity criteria in alternative formats to ensure accessibility for people with disabilities, and in other languages to ensure access for individuals with limited English proficiency. 4

5 Compliance Dates ( (b), , (d)(4)(i), (g)(i)): We urge CMS to shorten the timeframe for states to comply with applicable requirements in this rule. The proposed rule provides 18 months for states to come into compliance. Given how long ago the statutory requirements that this rule implements were enacted, an additional 18 months from the effective date of the final rule seems an inordinately long period of time for states to comply. We hope that CMS will shorten this timeframe at least for states with budget cycles that do not require such a lengthy period to achieve compliance and expedite its consideration of any state plan amendments that states may seek in order to comply with this rule. CHIP Plans Covering EPSDT Benefits Deemed Compliant with Parity ( ): Mirroring 2103(c)(6)(B) of the Children s Health Insurance Program Reauthorization Act (CHIPRA), proposed (b) provides that state CHIP plans are deemed to satisfy parity requirements if they provide coverage of EPSDT benefits. CMS should clarify, however, that coverage of EPSDT means that the CHIP plan furnishes beneficiaries with all medically necessary services required by EPSDT, including intensive in-home services, intensive care coordination, and the other services referenced in the May 7, 2013 joint CMS-SAMHSA Informational Bulletin on Coverage of Behavioral Health Services for Children, Youth, and Young Adults with Significant Mental Health Conditions, See trial court s decision in Rosie D. v. Romney. A state s belief that its CHIP plan provides coverage of EPSDT benefits is not sufficient to constitute compliance with EPSDT, CHIP, or parity requirements. Interaction with the ADA s Integration Mandate and Olmstead: Parity requirements for plans or entities that provide publicly funded services such as Medicaid MCOs, ABPs, and CHIP plans must be interpreted together with the requirements of the Supreme Court s decision in Olmstead v. L.C., 527 U.S. 581 (1999) and ADA s integration mandate that public entities administer services to people with disabilities in the most integrated setting appropriate. We urge CMS to clarify that parity requirements may not be used to circumvent compliance with the ADA and Olmstead. For example, parity does not provide an entitlement to needless institutional services that states choose not to provide. No Exemption for Increased Costs: CMS appropriately omits from this rule an exemption from parity requirements for MCOs, PIHPs, and PAHPs, ABPs, and CHIP plans that incur cost increases of at least two percent during the first year of compliance with parity requirements or one percent in subsequent years. 80 Fed. Reg , CMS correctly points out that the requirement that states provide actuarially sound payment rates that account for any increased costs ensures that any increased costs of compliance will fall on the state rather than on MCOs, PIHPs, and PAHPs. In addition, 5

6 as CMS notes, few if any plans in the commercial market have applied for a cost exemption. Furthermore, ABPs must comply with MHPAEA rules. Thank you for the opportunity to comment on this important proposed rule. Sincerely, Jennifer Mathis Director of Programs 6