August 18th, 2017

Law would shift ‘medically necessary’ determinations to clinicians

Efforts to increase coverage for behavioral health services have been an on-going struggle for patients, families and advocates in recent years. Some politicians have stepped into the fray and have filed legislation that benefits patients with mental health issues.

On January 19, 2017, Massachusetts State Rep. Kay Khan (D-11th Middlesex) and Sen. Jennifer Flanagan (D-Worcester and Middlesex) jointly filed a bill (H.1070) that would expand determination of medical necessity for mental health services to a treating clinician; currently insurers make that determination.

Originally, Sen. Tom P. Kennedy (D-Brockton) had been a proponent of this bill and had been working on its passage in collaboration with the Massachusetts Association of Behavioral Health Systems (MABHS), according to Shannon Moore, legislative director in Sen. Flanagan’s office. She added that when Kennedy passed away, Flanagan’s office took over the filing of the bill.

“This bill would give the treating clinician the authority over deciding what is ‘medically necessary’ to treat a patient who needs mental health services. Right now, when a clinician creates a plan of care for a patient, the patient’s insurer is the deciding authority on what services they are needed via utilization review process and may offer less intensive services or decline services all together, despite the doctor’s orders,” said Moore.

David Matteodo, executive director of MABHS, reported that his organization “…represents 45 inpatient mental health and substance abuse facilities in the state, which collectively admit over 50,000 patients annually.”

According to MABHS, insurance companies currently exert “a great deal of oversight…in terms of prior approval and concurrent reviews of mental health services,” which can ultimately restrict access to needed care and may shift financial responsibility for services to the patient.

A MABHS fact sheet noted that inpatient care is particularly vulnerable to rigorous oversight.

Matteodo emphasized that medical necessity should be made by the clinician in consultation with the patient. “This should be noted in the patient medical record. We believe the treating clinician should do this and not some unknown bureaucrat,” he said.

However, insurers would oppose this legislation, Matteodo pointed out. “They use carve outs that try to manage behavioral health utilization. In many cases, patients still need prior authorization for inpatient stays. There are also concurrent reviews for medical necessity, otherwise [the insurer] discharges the patient. Basically, it’s insurers having control over length of stay. It will be a ‘heavy lift,’” he said, noting that insurers fought vehemently against Chapter 258 of the Acts of 2014, which sought to improve access to substance abuse services. Ultimately, that bill was approved.

Matteodo noted that MABHS is “cautiously optimistic” about the future of the bill, and is confident that Rep, Denise C. Garlick (D-13th Norfolk), who is the new chair of the Joint Committee on Mental Health, Substance Use and Recovery, will actively promote the legislation.

“We’re hoping the bill gets some traction,” he said, pointing out though that the process is time-consuming. “It’s a long, drawn-out process. The bill has to go through the legislature, the committee, the full House and Senate before getting to the governor’s desk.”

In the 2015-2016 session, the bill (then S 1044) was given a favorable review by the Mental Health Committee, but did not make it out of the Health Care Financing Committee, according to Moore. “The bill remains in the Mental Health Committee under review at this time,” she said.

Annie Reiser, constituent services and communications director in Sen. Flanagan’s office, indicated that a hearing was held on the bill on June 6, but no action has been taken yet.

By Phyllis Hanlon

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