Tag Archives: insurance

Lawsuits Continue Against Insurance Companies for Refusing to Pay for Mental Health Care

Happy Thanksgiving to all of our readers.

Before the holiday break, I wanted to quickly give everyone a brief update on some interesting recently filed federal lawsuits against insurance providers relating to behavioral health.  We all have a lot to be thankful and grateful for as it relates to the plaintiffs and their lawyers who are fighting the “David v. Goliath” battle against many health insurance companies who continue to deny reimbursements for critical mental health care including behavioral health and Substance Use Disorders.

  1. Utah

In the pending case of K.H.B. v. UnitedHealthcare Insurance Co.,  in the U.S. District Court for the District of Utah, UnitedHealthcare is seeking to convince a Utah federal judge to reject most of a proposed class action brought by plaintiffs accusing it of improperly denying health insurance claims for wilderness therapy, a form of therapy said to be able to treat young people with substance abuse and mental health issues.  UnitedHealthcare moved to dismiss three out of four claims in an Employee Retirement Income Security Act suit that claims the company should have paid for the trip to a wilderness program attended by the plaintiff identified only as K.H.B.

Plaintiff K.H.B. alleged UnitedHealthcare is illegally disregarding the 2008 “Mental Health Parity and Addiction Equity Act”, a law that requires health care plans to provide about the same coverage for mental health and substance abuse claims that they provide for medical and surgical claims.  United responded that the pleadings “fell short on the claim for an alleged violation of that statute.”

According to K.H.B.’s amended complaint in August, he suffers from a wide range of mental illnesses, and sought help at a wilderness program after trying to commit suicide for the second time.

While he was insured by a UnitedHealthcare ERISA-governed health plan that covered mental health services, coverage for outdoor and wilderness behavioral programs are denied by UnitedHealthcare, even when the programs are required to treat mental issues, the amended complaint had alleged. He has said that he personally had to pay up almost $38,000 for his time spent at the program. And while K.H.B. has argued that outdoor and wilderness behavioral programs offer a cost-effective method for treating young people with mental health issues, UnitedHealthcare said that there hasn’t been a consensus reached in the scientific community as to whether such programs are effective.
 
[NOTE: Any waiver or reduction in the published costs of services could rise to an allegation of a state’s Patient Brokering laws, or potentially the new federal “Eliminating Kickbacks in Recovery Act” (EKRA) which makes any form of kickback within the addiction treatment space a federal crime.]
 

  1. Massachusetts

Also recently filed is the case of Steve C., et al., v. Blue Cross Blue Shield of Massachusetts Inc., in the U.S. District Court for the District of Massachusetts.  The suit’s plaintiffs are identified by the aliases Steve C. and Kelly W., along with daughter Jane Doe. The suit alleges that claims for Jane’s treatment for depression, anxiety and obsessive-compulsive disorder at a Utah inpatient facility were denied by the insurer despite being medically necessary.

The policies provided by Blue Cross of Massachusetts include coverage for inpatient intermediate residential treatment of mental health and substance use disorders, but the insurer improperly denied claims for such treatment, the suit alleges.  “However, BCBSMA interprets the language of the class policies in a way that improperly limits that coverage to only what it characterizes as ‘acute residential treatment’ to the exclusion of sub-acute residential treatment that is medically necessary,” the suit alleges.

After Jane was admitted to the inpatient facility on Feb. 26, 2016, Steve and Kelly submitted claims to their insurer, Blue Cross of Massachusetts. The insurer agreed to pay for the first 16 days of Jane’s treatment, but it said any treatment provided after March 14, 2016, would not be covered because it was not medically necessary, the complaint said.

After Steve and Kelly appealed Blue Cross’ decision, the company responded in October 2016 that it had made a mistake and would not be covering any of the treatment costs, citing the insurance plan provisions that it said excluded any intermediate inpatient treatment, even when it is medically necessary, the suit claims.

Steve and Kelly initiated a second appeal in March 2017, quoting the language of the insurance policy indicating that intermediate treatment was covered for mental health and substance abuse treatment, and that Blue Cross’ application of the “acute” limitations violated the policy and the Parity Act.

Blue Cross never responded to the second appeal, the complaint alleges, and never paid for any part of Jane’s treatment at the Utah facility. Jane received inpatient treatment for more than 10 months, and the suit said she experienced great progress and has become more functional.

Jane’s parents paid in excess of $185,000 for treatment that the suit claims should have been covered by Blue Cross because it was medically necessary.

The suit seeks restitution for the out-of-pocket expenses incurred by the proposed class members and an injunction preventing Blue Cross of Massachusetts from continued violation of its own insurance policies and of the Mental Health Parity and Addiction Equity Act, and a reprocessing of the class’ residential treatment claims.

  1. California

And then there is the case of Smith et al. v. United Healthcare Insurance Co. et al., in the U.S. District Court for the Northern District of California. In this case, a proposed class of employees who received psychotherapy through their employers’ health care plans sued United Healthcare Insurance Co. and United Behavioral Health in California federal court, accusing them of flouting the Employee Retirement Income Security Act (“ERISA”) by imposing unfair reimbursement limits on psychotherapy services.  The lawsuit targets a policy allowing United to pay therapists less when they have their master’s degrees and even lesser when they are certified psychologists. When United pays less to these therapists, customers foot larger portions of the bill, the workers state.

“Through these penalties, United is devaluing psychotherapy and is ultimately limiting access to an essential health benefit that plays a critical role in addressing pervasive public health issues, such as mental health and substance abuse disorders,” said the lead plaintiff’s counsel.

The lawsuit seeks to enjoin United from imposing its reimbursement reduction policy, which allows the insurer to pay 25 percent less to psychologists and 35 percent less to master’s-level therapists.

The suit also looks to require United to pay for or reprocess all claims that it denied under that policy.

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California Challenges HealthNet for Failing to Pay Addiction Treatment Programs

FierceHealthcare.com reported last Thursday, August 2nd, that, for the second time in just over a year, California regulators have warned the insurer HealthNet Inc. that it is violating state and federal laws by refusing to pay substance use treatment providers, a warning that could lead to millions of dollars in penalties.

Late last month, California’s Department of Insurance (DOI) formally issued an order to show cause against HealthNet, setting up a hearing to potentially penalize the Centene-owned company with fines that could reach hundreds of millions of dollars.

In June 2017, the agency sent an order to HealthNet’s lawyers after providers began filing complaints over HealthNet withholding payments to addiction recovery facilities. The DOI later withdrew the order after it appeared HealthNet was settling underpaid claims with providers.

The July 2018 Order said the insurer failed to pay inpatient and outpatient claims according to its policy, which resulted in the “underpayment and unfair settlement of claims.” Specifically, the DOI says HealthNet paid claims from residential treatment centers by substituting a bundled per diem Medicare rate “for an entirely different service furnished by an entirely different facility.”

Additionally, the DOI says, beginning in 2016, HealthNet referred all providers that filed complaints to its Special Investigations Unit (SIU) “prior to performing a reasonable review of the claims.” Several lawsuits filed against HealthNet by substance use providers have claimed HealthNet began “robo-signing” medical necessity denials.

“These business practices resulted in illegitimate denials and delayed payment of claims,” the notice states. “Referring claims requests without proper investigation is an unreasonable standard for the investigation and processing of claims.”

The state says HealthNet’s action violated several portions of the California state insurance code as well as the federal Mental Health Parity and Addiction Equity Act of 2008.

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LegitScript Opens The Spigot & Congress Chimes In on Internet Marketing

One of our favorite reporters in this space, Behavioral Healthcare Executive’s Julie Miller, broke the news that LegitScript has released the first wave of “certified” advertisers for whom using AdWords and PPC will be accessible again.

I reported about this new structure back in April 2018 in my article “Google Reinstates Ads for Addiction Treatment Centers, With Pre-Certification by LegitScript” but since that time, there has been little to no public information released about the process or the status of applications.

According to Miller’s article, “Treatment centers secure inaugural AdWords certifications,” over 100 treatment providers have been approved so far, according to David Khalaf, communications specialist for LegitScript, Google’s independent partner overseeing the certifications. This far exceeds the 20-30 that LegitScript initially reported they believed they would be able to accommodate.

“Completing the LegitScript application was a rigorous task, according to Doug Tieman, president and CEO of Caron Treatment Centers. Caron has facilities in six states and is one of the newly certified organizations now cleared to bid on premium Google AdWords. Although earning the certification takes time and effort, Tieman says the benefit for the industry is that such vetting will help eliminate black-hat marketers from even participating in the more robust Google paid search options. Only the documented good guys will have the privilege.”

“’Unethical marketing practices in the addiction treatment industry have become common,’” Tieman says. “’Yet prohibiting all treatment facilities from advertising is not a viable option for anyone—Google, treatment centers or consumers.’”

Seabrook, with multiple centers in New Jersey, has also secured its certification.

According to Miller: “It’s important to keep in mind that the certification is still ramping up and that it only applies to AdWords advertising. Organic search engine optimization and Google Maps will remain in place. For the newly certified organizations, LegitScript will also continue to monitor their activity.”

This all comes on the heels of a 2.5 hour hearing that the House Energy & Commerce Committee hearing on Tuesday, July 24th, where House Representatives questioned entities such as Michael Cartwright, Chairman and CEO of American Addiction Centers as well as owner of Rehabs.com, on how their online platforms work.

While the hearing is not “must watch TV”, it seemed apparent to us that Congress understands there is a problem with matching patient with the marketplace, but hasn’t yet focused on the source of that problem, which is insurance companies arbitrarily (and in my opinion, illegally) refusing to pay for mental health and behavioral health care, and local zoning authorities who continue to place NIMBY (Not In My Backyard) politics with the siting of necessary facilities.

If there was a nationwide, robust mental health in-network system where providers could actually get paid and that patients could more easily access, perhaps using Google to search for help would not be as critical.

We agree with Caron’s Doug Tieman on this point. By restricting all information to prospective patients, we are effectively making it that much more difficult to access care.

NOTE: During the Congressional hearing, AAC’s Cartwright kept lauding a Tennessee law which supposedly passed this year which addresses the issue of unscrupulous advertisers. In our read of that law, it is an absolute copy of Florida’s law that the Palm Beach County Sober Home Task Force drafted and the Florida legislature passed over a year ago.  Florida continues to lead the nation in not only best in class health care for people with Substance Use Disorders, but also in protecting those who may fall victim to opportunists taking advantage of this disjointed health care system.

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Reduction of Mental Healthcare Workforce Contrasts with Need

According to ModernHealthcare.com, the U.S. healthcare sector added 22,400 jobs in March, an improvement from February and roughly in line with its average monthly gain over the past year. The largest decline in the healthcare sector took place within residential mental health facilities, which shed 4,100 jobs, according to the U.S. Bureau of Labor Statistics’ newest jobs report released Friday. That’s after those facilities made 700 new hires in February. Ambulatory healthcare services continued its steady growth in March. That sector saw the most new hires within healthcare: adding 16,200 jobs. Hospitals added 9,900 jobs, an improvement from 9,300 new jobs in February. Within the ambulatory sector, dentists’ offices added 4,400 jobs, physicians’ offices added 3,700, outpatient care centers added 3,500 and home healthcare.

Any why is this?

Three main reasons:

  1. Difficulty of Marketing/Brand Recognition – Unlike more traditional forms of healthcare, assisting a patient with selecting a mental health/substance use disorder provider is not as easy as making a referral to a local provider. It is inherently constrained by the refusal of insurance carriers to provide robust IN-NETWORK benefits and providers and by local zoning authorities hindering and obstructing the siting and growth of such facilities. You can’t employee people if you can’t open your facility (and keep it open).
  2. Failure to Pay – You can’t pay the army of employees you need to do this right if you don’t have steady, predictable income, unless you want to staff your facility with interns and unqualified people with little to no experience. I believe our citizens deserve better.
  3. Workforce – People have never flocked to this segment of healthcare as a professional or occupation due to lack of education, lack of ability to make a living, and stigma. In the early days of mental health care, psychiatrists themselves were criticized by their medical school peers as not practicing “real medicine.” On top of that, only the wealthy could afford such services. With insurance only now beginning to pay, the reimbursements are so low that a healthcare provider is stuck with offering volume care over quality. Providers are simply unable to pay competitive salaries and therefore the already limited mental healthcare workforce is going elsewhere.

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Will Addiction Treatment Be Eliminated from Obamacare Requirements?

The federal Centers for Medicare & Medicaid Services (CMS) proposed a federal rule late Friday aimed at giving states more flexibility in interpreting the Affordable Care Act’s “Essential Health Benefits” mandate as a way “to lower the cost of individual and small group health plans.”

Perhaps most notably, CMS’ proposed rule would allow states to alter their essential health benefits benchmark plan annually, beginning as early as 2019.

The Affordable Care Act set forth ten (10) categories of essential health benefits, including mental health and substance use disorder treatment.

“Consumers who have specific health needs may be impacted by the proposed policy,” the agency said. “In the individual and small group markets, depending on the selection made by the state in which the consumer lives, consumers with less comprehensive plans may no longer have coverage for certain services. In other states, again depending on state choices, consumers may gain coverage for some services.”

The agency in 2017 proposed standardized health plan options as a way to simplify shopping for consumers on the federally run marketplaces. The CMS said it would eliminate standardized options for 2019 to maximize innovation. “We believe that encouraging innovation is especially important now, given the stresses faced by the individual market,” the proposed rule states.

The Trump administration hopes to relax the ACA’s requirements and provide as much state flexibility as possible through administrative action, following the collapse of congressional Republican efforts this year to make those changes legislatively.

However, the EHB benchmark plans for mental health/substance abuse must comply with the Mental Health Parity and Addiction Equity Act of 2008 (“Parity Act”).

While we do not believe that any state can eliminate or reduce benefits for drug and alcohol treatment, by reducing benefits for other medical health care counterparts, they could strategically and effectively compromise reimbursements, even under the Parity Act.

The 2019 Notice of Benefit and Payment Parameters (PDF), released Friday.

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Negative Press Causing Referrals to Florida to Come Into Question

The Portland Press Herald reported on July 19, 2017 in the article “Operation Hope stops sending clients out of New England for opioid addiction treatment” about how the Scarborough (Maine) Police Department’s Operation Hope has stopped sending clients out of New England for treatment for opioid addiction, largely because of negative media about alleged unscrupulous programs, especially in Florida (a story published in May by STAT, a health journalism website that partners with The Boston Globe, detailed alleged insurance scams and referrals to Florida clinics where patients were receiving little or no treatment).

Launched in 2015, Operation Hope was conceived as a way for police to channel addicts who sought help into a treatment program as an alternative to criminal prosecution on drug-related charges.

In most cases, getting help from Operation Hope meant flying out of state – to Florida or one of eight other states – because Maine lacked treatment opportunities. In the program’s first six months, four out of five Operation Hope participants headed out of Maine, mostly to clinics in Florida, Arizona and Massachusetts.

“We always wanted to help people closer to home, but we really had no other choice. That was the only way to get people help,” said Steve Cotreau, program manager at Portland Community Recovery Center. The nonprofit social support center for people in recovery has helped with Operation Hope placements.

With the current black-and-white approach that many law enforcement agencies are taking with regard to “regulation” of treatment providers, many good providers are electing to close up shop due to lack of regulatory guidance. When the only guidance available is a knock at the door from a detective claiming you have violated the law, when the lawyers themselves may disagree whether the law was violated, but it is to be “left up to the judge and jury” to determine one’s fate, many good providers are simply walking away.

There is an absolute vacuum of publicly-funded beds in Florida, and nationally. Even when there is some modicum of availability, these facilities are generally not accessible to persons who do not qualify as being impoverished, and are often staffed by persons who lack the experience or education to be administering what is becoming an overwhelmingly medical modality.

The ignorance from the regulatory bodies about how the private sector must be allowed to work is impeding innovation as well as necessary investment in technologies for growth. A truly progressive society would stop complaining and fully support the treatment industry altogether.

The apparent restriction of prosecutorial discretion for purposes of achieving popular political gains is not only short-sighted, but also has a significant negative impact upon the substantial legitimate employment that the industry provides, along with choking off the ancillary revenue that local businesses experience from developing recovery communities.

We will simply go from one crisis, to another.

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Affordable Care Act Means More Young People Getting Needed Behavioral Health Treatment (Time Magazine)

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A provision in the health care reform law allowing parents to keep their adult children on their health-insurance plans has led to millions more young people with mental-health and substance-abuse problems getting treatment, according to a new study.

http://time.com/3080227/obamacare-mental-health-treatment/

“The Affordable Care Act (ACA) required that insurers allow people ages 19–25 to remain as dependents on their parents’ health insurance beginning in 2010. Using data from the 2008–12 National Survey of Drug Use and Health, we examined the impact of the ACA dependent coverage provision on people ages 18–25 with possible mental health or substance use disorders. We found that after implementation of the ACA provision, among people ages 18–25 with possible mental health disorders, mental health treatment increased by 5.3 percentage points relative to a comparison group of similar people ages 26–35. Smaller, but consistent, effects were found among all young adults, not only those with possible illnesses. For people using mental health treatment, uninsured visits declined by 12.4 percentage points, and visits paid by private insurance increased by 12.9 percentage points. We observed no changes in mental health treatment setting. Outcomes related to substance abuse treatment did not change during the study period. The dependent coverage provision can contribute to a broader strategy for improving behavioral health treatment for young adults.”

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How to Reconcile Integration with Anti-Kickback Laws and Market-Based Compensation

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“Many hospitals are hiring and contracting with doctors to boost referrals and serve members in their coordinated-care networks. But how to pay those doctors has become a legally perilous area under the federal Stark and anti-kickback laws and the False Claims Act, with whistle-blowers, their attorneys and the Justice Department watching these transactions closely. Halifax and other recent big-dollar whistle-blower cases involving allegations that hospitals violated Stark self-referral rules in paying physicians highlight the huge stakes for hospitals, which are at risk for triple damages under the False Claims Act. Those damages are based on total billings, making the potential damages in these cases enormous.”

“The tough part for hospital leaders is that these legal pressures are at odds with public policy and market forces pushing health systems toward greater integration to improve care coordination and reduce costs. The federal government hasn’t reconciled its goal of encouraging integration with its desire to prove that it’s tough on fraud and abuse. As a result, systems pursuing integration will need to be even more vigilant because they’re stepping closer to the line where traditional Stark law enforcement might come into play.”

Read the full story here:
http://www.modernhealthcare.com/article/20140308/MAGAZINE/303089982/caught-between-competing-pressures?AllowView=VXQ0UnpwZTVDZlNXL1I3TkErT1lBajNja0U4VUNlWlZFQk1JQmc9PQ==&utm_campaign=am

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Zoning – Cities Can’t Discriminate Against Providers

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Once again (and again, and again), the NIMBY (Not In My Backyard) and the CAVEmen (Citizens Against Virtually Everything) pitchforks came out in mass to protest a methadone clinic opening in Philadelphia, notwithstanding that methadone clinics are otherwise allowed.

“The court also used a Third Circuit finding to bolster its conclusion, citing a 2007 ruling that found that municipalities are not free to hold methadone clinics to different zoning standards than ordinary medical clinics.”

There is no basis to treat medical and health clinics any differently from substance abuse clinics, but for the type of person to be treated.

I often find it comical (not really) when I bring to NIMBY’s attention that a MOD (medical office building) permits psychiatrists who have the right to see would-be mass murderers and potential child molesters, but heaven forbid people seeking recovery and solace from the scourge of drug abuse seek similar (if not less intense) medical and behavioral care, and the pitchforks and torches come off the shelves.

Check out this LAW360 article:
Pa. Court Says Philly Zoning Can’t Preclude Meth Clinics

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Prompt Pay Laws

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Many have been calling in recent days regarding insurance carriers refusing to pay for claims for treatment, essentially saying “sue us for your money.” Aside from potentially discriminatory undertones, this is patently illegal.

The State of Florida has what are known as “Prompt Pay” laws which require an insurance carrier to do just that. While I won¹t get into the details here, I thought I would share this article with you to illustrate that ³you are not alone² when it comes to this headache.

Read more about them with Law360’s article:
Hospitals Can Sue Under Prompt Pay Law: NY Appeals Court

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