The Association for Community Affiliated Plans (ACAP) thanks you for providing us with an opportunity to comment on the proposed rule called Medicaid and 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. This proposed rule was published April 10, 2015 in the Federal Register.
ACAP is an association of 59 nonprofit and community-based Safety Net Health Plans. Our member plans, located in 24 states, provide coverage to more than 13 million individuals enrolled in Medicaid, the Children’s Health Insurance Program (CHIP), Medicare Special Needs Plans for dually-eligible individuals and Qualified Health Plans (QHPs). ACAP plans currently serve approximately one-third of Medicaid and CHIP enrollees who receive coverage through risk-based managed care. ACAP plans are members of their communities, partnering with states to improve the health and well-being of their members who rely upon the Medicaid and CHIP programs.
Overall, ACAP supports the concept of improving behavioral health services through the application of mental health parity standards in Medicaid. Prior to this point, there has been a great deal of confusion over how mental health parity applies in Medicaid and the proposed regulations certainly help to address that confusion. However, ACAP does have concerns about how some of the provisions are being implemented which we will spell out in this letter.
Our most significant concern is with the lack of a level playing in Medicaid as it relates to mental health parity. First, we are generally concerned about the fact that individuals being served entirely in the fee-for-service environment are being denied the same protections as individuals who get some portion of their care through a managed care arrangement. As important, the NPRM does not promote a level playing field between managed care 2 arrangements and fee-for-service in the application of mental health parity and we are concerned that may result in unintended consequences and incentives.
We applaud CMS for including strong language concerning the enforcement of actuarial soundness as it relates to the outcome of the mental health parity analysis. However, given the critical nature of adequate reimbursement in order to elevate behavioral health services to the same level as physical health, there must be clear and direct enforcement measures included. Moreover, there is a need for the proposed rule to mandate transparency requirements so that all parties can be assured actuarial soundness is being met.
It is also important that the actuarial soundness provisions not only address the impact of changes in service limits, but also the potential impact of changes in the risk pool because of the uneven playing field discussed above. The actuarial soundness evaluation must also address the financial impact that changes in the non-quantitative treatment limits may have on a health plan’s cost structure, given that current rates take into account historical data and existing utilization management techniques.
Finally as it relates to actuarial soundness, while we recognize CMS concerns over the possible inclusion of non-covered services into the managed care rates, this concern cannot be allowed to overshadow the value and appropriateness of health plans providing more effective services in lieu of covered benefits or being able to utilize savings to provide valueadded benefits. It must be made clear that these legitimate and necessary alternatives are allowed and not considered non-covered services.
Concerning the parity analysis in general, we appreciate the comprehensive examples provided by CMS as a means of clarifying the complicated guidance provided by the NPRM. We support the examples that demonstrate parity is established as it relates to nonquantitative treatment limits such as prior authorization, concurrent review, determinations of medical appropriateness and provider acceptance into the network, as long as there is parity in the development and application of evidentiary standards, processes and requirements, “even if the comparable application of the evidentiary standards may result in different outcomes as it relates to MH/SUD”.
However, CMS needs to clearly address some necessary exceptions to the parity rule. For example, there are a number of behavioral health services that are unique to the Medicaid environment and have no comparable service in the physical health realm or in the commercial insurance environment. ACAP believes that the uniqueness of these services must be addressed without attempting an unworkable comparison analysis under the category of other services.
A second example of the need for exceptions relates to select behavioral health services that may fall into the category of high risk for fraud and abuse purposes. Under the risk 3 mitigation component of compliance, health plans must put into place necessary controls to address this risk. However, the NPRM does not address how these competing priorities are resolved under the parity analysis. At a minimum, ACAP requests an example be included in the final regulation that specifically addresses the exception based on a comparably applied risk mitigation strategy.
Overall the parity analysis requirements are intricate and complicated. Unlike past situations when CMS has only provided additional guidance and technical assistance directly to the states, it is imperative that, as it relates to the mental health parity analysis, this technical assistance should be made available directly to the affected health plans as well.
Concerning the parity analysis in carve out situations, ACAP believes that this may be workable as it relates to issues such as contract services and financial limitations related to these benefits. However, it is not clear how this analysis applies or would play out as it relates to non-quantitative treatment limits across multiples plans. For physical health services, each plan has developed its own approach to utilization management and review. It is certainly not clear how the state purchaser will make the comparison between behavioral and physical health services where there are a variety of approaches being applied.
We are also requesting that CMS provide clarification as it relates to the scope of the NPRM. The NPRM states that long term care (LTC) services are excluded from the parity requirements. ACAP requests that more clarity be provided in terms of how LTC is defined. For example, is LTC limited to nursing facility care or does it include long term supports and services (LTSS)? ACAP strongly supports including LTSS in the definition of long term care for purposes of parity. In addition, the NPRM does not address whether neurodevelopmental conditions such as autism are considered a behavioral health condition for purpose of the parity rules.
In terms of the timeframe for implementation, ACAP believes that 18 months is the minimum that should be included and that strong consideration be given to increasing the implementation timeframes. The NPRM correctly indicates that it will take a minimum of 18 months to conduct the parity analysis, amend the managed care contracts, and ensure rates are actuarially sound. However, there is NO mention of the timeframe that health plans will need to implement the provisions, including the potential operational challenges that must be addressed. Therefore, we believe the timeframe should be extended to 24 months or, at a minimum, the first day of the contract year after the 18 month timeframe expires.
Concerning the request for comments on the issue of eliminating the use of carve outs for behavioral health services, ACAP is not taking a formal position. We recognize that eliminating carve outs may help to promote better integration and address some of the privacy challenges posed by 42 CFR Part II. However, the use of carve outs has been critical in allowing states the flexibility to address the unique aspects of their behavioral health 4 delivery system. While these unique aspects are often based on historical artifacts as well as other factors such as the geographic distribution of services, the impact on the ability to provide comprehensive delivery of services must be recognized nonetheless.
Finally, while the proposed parity regulations may serve to improve behavioral services in Medicaid, there are other changes that are also critical and should be addressed. First, CMS must work with SAMHSA and other partners to address the unworkable aspects of 42 CFR Part 2 in order to support the goal of improved integration between physical and behavioral health services. ACAP supports concentrating on the current HIPAA framework as the means for protecting privacy without deterring integration of care. Second, the issue of the outdated Institution for Mental Diseases (IMD) exclusion must be fully evaluated and addressed.
Again, we thank you for this opportunity to comment on this important proposed rule. If you have any questions, please do not hesitate to contact Deborah Kilstein (202-341-4101, firstname.lastname@example.org).