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CEO Update 226

NABH Education and Research Foundation Partners with Manatt to Produce Issue Brief on Telehealth Services in PHP and IOP

The NABH Education and Research Foundation this week released an issue brief that shows how telehealth services effectively augment traditional partial hospitalization programs (PHP) and intensive outpatient programs (IOP). The telehealth issue brief is the first resource from the NABH Education and Research Foundation, which worked with NABH members and Manatt to compile and evaluate data to measure the impact that telehealth services have had on access and outcomes. Results from the study show that using telehealth services improved access to care and optimized the reach of existing personnel. The initial findings from several NABH members also indicated that, relative to in-person services, telehealth delivery-of-care produced similar or better outcomes for PHP and IOP patients. The telehealth issue brief’s key findings also include: During the COVID-19 crisis, regulatory flexibilities enabled traditional in-person PHPs and IOP programs to implement telehealth services rapidly. Using telehealth to deliver PHP and IOP services has improved access to care for remote patients and those facing other access obstacles. Emerging research is showing that, relative to in-person care, the use of telehealth in PHPs and IOPs generally is improving the quality of clinical care, patient satisfaction and the overall efficiency of the healthcare system. NABH urges its members to read the issue brief and share it with others. The association has also created a social media toolkit with shareable graphics that highlight key research from the study. Members can access the issue brief and social media toolkit on the NABH Education and Research Foundation’s Resources page. Manatt will host a webinar about the issue brief’s findings on Wednesday, March 1 at noon ET. Click here to learn more and register for the free webinar. The NABH Education & Research Foundation fields independent studies and partners with other organizations to identify and develop best practices and improve NABH members’ ability to support the country’s behavioral health needs.

New 9th Circuit Court of Appeals Ruling Threatens Behavioral Healthcare Coverage

A three-judge panel in the 9th U.S. Circuit Court of Appeals on Jan. 26 replaced its March 2022 ruling in the Wit v. United Behavioral Health (UBH) case with a new opinion that is a major disappointment to both mental health patients and providers. NABH asserts the latest opinion will materially reduce the benefit of insurance because it does not protect medically necessary treatment based on generally accepted standards of care. NABH refuses to allow insurers to deny medically appropriate care to those who need it and will file a new amicus brief and request that the 9th Circuit rehear the case. The U.S. District Court for the Northern District of California’s initial ruling on this class action case in 2019 affects more than 100 million health insurance enrollees. The ruling, considered one of the most significant of the last decade, found that UBH’s reimbursement guidelines for psychiatric conditions were non-compliant with generally accepted standards of care and treatment. In its ruling, the District Court articulated a series of clinical standards for behavioral healthcare treatment that emphasized the need for treatment to sustain improvement, rather than only address an immediate clinical crisis. The District Court also applied a holistic approach that required treatment for both primary and comorbid impairments, such as the combination of depression and a substance use disorder. A year after this finding, the District Court ordered UBH to reprocess more than 50,000 claims it had initially denied. The 9th Circuit Court of Appeals subsequently undid this ruling with its 2022 memorandum. While the latest ruling in this case is a disappointment, NABH and other behavioral healthcare groups found both positive and negative elements in it. These include: Positive Factors:
  • The 9th U.S. Circuit Court of Appeals found that UBH violated its fiduciary duty to all class members by using medical necessity criteria that were infected by UBH’s financial conflict of interest.
  • The 9th U.S. Circuit Court of Appeals upheld the U.S. District Court’s finding that UBH broke the laws of four states, which required UBH to apply specific substance use criteria to evaluate medical necessity.
Negative Factors:
  • The 9th U.S. Circuit Court of Appeals held that UBH does not have to reprocess over 60,000 claims for class members denied coverage under UBH’s flawed guidelines, contrary to longstanding precedent on reprocessing as an ERISA remedy.
  • The 9th U.S. Circuit Court of Appeals held that all ERISA class action members must first exhaust their administrative remedies, even if doing so would be futile, as the U.S. District Court found was the case here.
  • The 9th U.S. Circuit Court of Appeals held that insurers may use medical necessity criteria that are inconsistent with generally accepted standards of care.

CMS Updates Audit Protocol for Medicare Advantage Payments

The Centers for Medicare and Medicaid Services (CMS) on Jan. 30 issued a final rule related to using risk adjustment to ensure accurate payment for services provided under Medicare Advantage (MA). Modifications to the risk adjustment audit protocol, called risk adjustment data validation (RADV), and the related overpayment refund process were initially issued in a 2018 proposed rule. Final action was delayed until now, in part, due to the COVID-19 pandemic. The final rule reflects estimates from the HHS Office of the Inspector General of more than $15 billion in MA overpayments in fiscal year 2019, or about 7% of total payments. The final rule takes effect April 3, 2023 and has an estimated recovery amount of $4.7 billion in over 10 years. NABH supports this final rule’s objective to increase oversight of payment accuracy under MA and improve the alignment between payments and medically necessary services for enrollees. To align MA payments with the clinical needs of enrollees, CMS risk-adjusts payments based on patients’ health status and key characteristics. The goal of risk adjustment is to pay less for healthier enrollees and more for more medically complex enrollees. To identify any inaccuracies in MA risk-adjustment’s impact on payments, CMS conducts retrospective RADV audits of a sample of each plan’s enrollees—typically about 200 per plan— to review their medical records to quantify any gaps between medically necessary care and reimbursed services. Extrapolation: Beginning with payment year (PY) 2018, rather than PY 2011, as proposed, the overpayments quantified through RADV audits will be extrapolated to the full MA contract. While not articulated in the final rule, CMS’ extrapolation methodology will be disclosed to MA insurers and be focused on insurers identified as being at highest risk for improper payments. CMS stated that its use of extrapolation is intended to incentivize meaningful steps by its contractors to reduce improper MA risk-adjusted payments. Overpayments identified for PYs 2011 through 2017 will be refunded to CMS without the application of extrapolation. FFS Adjuster: In addition, as proposed, the final rule will not apply an adjustment factor (known as an FFS Adjuster) to RADV audit findings, which is a form of risk adjustment. This final position is based on recent case law, which found that the FFS adjuster must be applied to MA payments but not refunded overpayments, including those identified during a RADV audit.

Congressional Research Services Releases Parity Report

The Congressional Research Service (CRS)—the public policy research institute of the U.S. Congress—this week released a report that explains mental health/substance use disorder benefit coverage and parity requirements and the types of private health insurance plans subject to those requirements. The report includes a brief review of relevant legislative history, including changes enacted in December 2022, and a discussion and examples of required federal agency activities. The CRS focused on federal private insurance requirements; it does not compare state requirements or actual plan variation in coverage. It also does not examine mental health benefits in Medicare and Medicaid. Click here to read the report.

National Institute of Mental Health Develops Strategic Framework to Address Youth Mental Health Disparities

The National Institute of Mental Health (NIMH) has developed the National Institute of Mental Health (NIMH) Strategic Framework for Addressing Youth Mental Health Disparities for fiscal years 2022–2031, a resource intended to provide a conceptual approach to help guide NIMH activities, including research funding, stakeholder engagement, and workforce development related to research on the mental health needs of youth affected by racial and ethnic health disparities. “Our country is in the midst of a youth mental health crisis, including alarming increases in youth suicide in recent years,” Christina P.C. Borba, Ph.D., M.P.H., wrote in the framework’s foreword message. “We also know that youth exposed to racism, discrimination, and other adverse experiences, as well as those from disadvantaged and underserved communities, are disproportionately impacted by mental illnesses, and frequently experience reduced access to high-quality, evidence-based mental health services and receive fewer follow-ups in a variety of provider settings,” Borba continued. “Addressing these challenges will require sustained attention, effort, and resources – all built on a foundation of high-quality research.”

News Report Shows How States are Responding to Synthetic Opioid Nitazene

The news outlet Axios recently examined how nitazene, a synthetic opioid thought to be 40 times more powerful than fentayl, is complicating the public health response to the opioid crisis in various states. Nitazene comes in powder, pill, and liquid form and requires significant lab work to trace. “Often laced into substances that users think is fentanyl or heroin, it’s potentially lethal or can cause a more severe onset of withdrawal symptoms,” the story noted. The Centers for Disease Control and Prevention (CDC) last September published a study on nitazene-related deaths in Tennessee from 2019-2021 and reported that nitazenes are an emerging group of highly potent psychoactive substances for which tests are not often included in standard toxicology panels. “Given their potency, raising awareness about nitazenes and implementing strategies to reduce harm through increased testing, surveillance, and linkage to treatment for substance use disorders are of vital importance,” the CDC study said. “More data are required to better understand this emerging group of psychoactive substances in the United States.”

Reminder: Please Submit Data to Enhance NABH’s Managed-Care Advocacy Efforts

Thank you to all members who have submitted data to NABH’s denial-of-care portal. Your data will help NABH highlight problems in the field related to health plan denials and timeliness. Several policymaking entities are interested in these data, which could support advocacy for expanded access to care. For new participants, please e-mail Emily Wilkins, NABH’s administrative coordinator, for support.

Details Coming Soon for the NABH 2023 Annual Meeting

Please plan to join us in Washington, DC from June 12-14, 2023 for this year’s NABH Annual Meeting at the Salamander Washington, DC (formerly the Mandarin Oriental hotel). Details coming soon.

Fact of the Week

A new Pew Research Center study shows that 40% of parents report they are “extremely/very” worried that their children might struggle with anxiety or depression at some point. For questions or comments about this CEO Update, please contact Jessica Zigmond.