Paul Samuels, Dan Belnap and Gabrielle de la Guéronnière, Legal Action Center 1 Substance Use Treatment Legislative & Policy Update – Parity Regs, Parity Enforcement

Where we are and what we see ahead Ensuring coverage and access to the full continuum of MH and SUD care Implementing the ACA and parity Coverage of the full continuum in private insurance and Medicaid Maintaining a strong safety net Coverage and access to care for justice-involved individuals Eliminating discrimination against people with addiction histories and/or criminal records Work with the administration and Congress 2

Update: Mental Health and Substance Use Disorder Parity 3 Proposed rule for Medicaid and CHIP released by CMS earlier this month 60-day comment period, comments due today Important similarities between the proposed rule and the Final Rule on MHPAEA and commercial coverage Certain differences between the commercial and proposed Medicaid/CHIP guidance

Highlights of the Proposed Medicaid/CHIP Parity Rule Requirements of future final rule would apply to Medicaid managed care organizations, CHIP, and Medicaid Alternative Benefit Plans (ABPs), including those for the expansion population Core parity test/framework is the same: financial requirements and treatment limitations for MH/SUD benefits are no more restrictive than the predominant financial requirements and treatment limitations applied to substantially all medical/surgical benefits

Highlights of the Proposed Medicaid/CHIP Parity Rule (cont’d) 5 Builds on previous regulatory framework Benefit categories: Inpatient, Outpatient, Emergency Care, Prescription Drugs Removes in-network/out-of-network distinction to reflect Medicaid/CHIP cost-sharing and network protections Proposes to exclude long-term services from review Acknowledgement of intermediate services in commercial MHPAEA final rule, no further discussion of scope of services Similar proposed treatment of prescription drug classification into tiers based on reasonable factors and without regard for whether the drug is prescribed for MH, SUD or another health condition

Highlights of the Proposed Medicaid/CHIP Parity Rule: MCOs Previous CMS guidance on the application of MHPAEA to MCOs: Acknowledged variability in delivery models Noted prevalence of MH/SUD services being “carved out” and delivered through FFS or prepaid health plans, and potential challenges in conducting a parity analysis Proposed Medicaid rule proposes that MHPAEA protections apply to all MCO enrollees regardless of how services are delivered

Highlights of the Proposed Medicaid/CHIP Parity Rule: MCOs (cont’d) To come into compliance with parity, carve-out states can either: Option 1: Amend their state plan to ensure FFS MH/SUD services meet parity compared to MCO-provided medical/surgical benefits Parity would then indirectly be applied to FFS Medicaid beneficiaries Option 2: Include MH/SUD services in the MCO or prepaid health plan contract (MCO or health plan would be responsible for complying with parity) CMS parity review under either option—SPA approval or approval of MCO contracts

Highlights of the Proposed Medicaid/CHIP Parity Rule: MCOs (cont’d) Carve-out states, state is responsible for doing the parity analysis States where MCOs provide both medical/surgical and MH/SUD benefits, MCO would do a parity analysis and inform state of any changes in the MCO contract to meet MHPAEA

Highlights of the Proposed Medicaid/CHIP Parity Rule: MCOs (cont’d) Discussion of costs CMS proposes that state would be responsible for any increased costs associated with coming into parity compliance Any additional costs would be incorporated into rates paid to MCOs/prepaid health plans providing MH/SUD services Potential incentive for compliance…

Highlights of the Proposed Medicaid/CHIP Parity Rule: MCOs (cont’d) No cost exemption (as included in the commercial MHPAEA rule) Plans not responsible for increased costs No requests for cost exemption on the commercial side

Highlights of the Proposed Medicaid/CHIP Parity Rule: CHIP CHIP Reauthorization Act of 2009; both FFS and managed care arrangements Similarities with application of parity to other coverage Discussion of EPSDT coverage: if CHIP state plan provides full coverage of EPSDT, parity is deemed met; NQTLs on EPSDT coverage must meet parity

Highlights of the Proposed Medicaid/CHIP Parity Rule: ABPs Earlier discussion of managed care coverage applies Discussion of EHB requirements in addition to parity requirements Excludes FFS ABP coverage from in-network/out- of-network parity requirements

Highlights of the Proposed Medicaid/CHIP Parity Rule Disclosure provisions and appeals process Similar to final MHPAEA rule but noted much stronger appeals protections for Medicaid and CHIP enrollees Oversight and enforcement Noted potential of delaying federal financial participation Timing for next steps: Sixty-day comment period: comments due to CMS by June 9 th CMS proposes that rule would become effective 18 months after a final rule is issued…

Next Steps on Parity Advocacy: Work by CMS to finalize the parity rule; implementation, oversight and enforcement Continued work to implement the final MHPAEA rule on commercial plans Need to increase volume of parity complaints Continued need to connect with the state insurance commissioners and the state Medicaid agencies

Challenges with Enforcement of the Federal MH/SUD Parity Law 15 Delay in final implementing regulations Regulations for commercial plans that have to comply with the federal parity law became effective for most plans in Jan 2015; proposed Medicaid guidance will not likely be finalized and effective for two years Shared oversight responsibilities at the federal level (Departments of Labor, HHS and Treasury) and in the states (Departments of Insurance and Medicaid agencies) Connection between parity and the ACA has created further difficulties in certain states Complexity of the law and need for plan transparency and disclosure to conduct a full parity analysis

Another Possible Lever: Attorneys General and the Federal Parity Law 16 In addition to the state and federal government agencies tasked with enforcing the federal parity law, State Attorneys General can also choose to enforce the law A number of state AG offices have health care departments or experts in consumer protective-health care laws Investigatory powers and resources to do full parity compliance review New York State Attorney General Eric Schneiderman has been at the cutting edge of parity enforcement through his Health Care Bureau

Parity Enforcement Work by the NY AG 17 NY’s AG has settled five cases against NYS health plans for parity violations since 2014 (Cigna, MVP Health Care, Empire Health, ValueOptions/Beacon Health Options, and Excellus) Examples of practices found by AG to violate parity: Not covering residential MH/SUD treatment Charging higher co-payments for outpatient mental health visits than for outpatient primary care visits More frequent denials of requests for pre- authorization and of claims for MH/SUD than for medical/surgical

Parity Enforcement Work by the NY AG (cont’d) 18 Examples of violations: Requiring (unofficially) that patients “fail first” at outpatient MH/SUD treatment before approving inpatient Approving only a few days of MH/SUD treatment at a time Significantly lower reimbursement rates for MH/SUD providers than for other health care providers Inadequate MH/SUD provider networks Denials for MH/SUD claims so generic that they blocked meaningful appeal

Strategies to Engage Your State’s AG on Parity Oversight and Enforcement 19 Research your AG Participation on the NAAG Consumer Protection Committee (RI, ND, KY, NH, IA, KS, VT, UT, IN) or the Substance Abuse Committee (FL, KY, NH, NJ, ME, GA, UT)? Specific background on MH/SUD? Example: Ohio AG Mike DeWine (former US Senator who sponsored MHPAEA) Is there a consumer hotline through your AG’s office? Example: NY AG’s office managed care hotline; calls from consumers/family members helped to trigger the AG’s investigation Does your AG’s office have a health care bureau or department? Current areas of focus? Example: Recent focus on the opioid crisis and discussion of the role of access barriers to SUD treatment

Strategies to Engage Your State’s AG on Parity Oversight and Enforcement 20 Work in coalition to get the word out broadly and to encourage complaints to the AG’s office when there are barriers to care Need to give examples of the types of SUD and MH care access problems that may indicate violations of the federal parity law; not necessary for individuals/family members to do full parity analysis—enough complaints may generate a review by the AG’s office Continue work with your national partners to strengthen your efforts Generating as many calls to report poor access to SUD/MH care as possible is extremely important

Update: Essential Health Benefits 21 Next plan-year selection process: States were to select an EHB benchmark by June 1 CCIIO will then review the state selections (or assign the default if states fail to choose) and publish a list of state selections by late summer for public comment Following public comment, they'll publish final list Opportunity to review your state’s benchmark and flag concerns Specific attention paid to excluded services and to prescription drug coverage Coverage that fails to meet requirements of the ACA/parity must be brought into compliance Need for continued close work with key state and federal decision-makers

Upcoming Activities Related to ACA Implementation 22 Medicaid Proposed Medicaid managed care rule CMS Innovation Accelerator Program (IAP) Focus on MAT and improving coverage/access The ACA and the criminal justice system; new resource: criminal-justice-system/ criminal-justice-system/ Private insurance Implementing the rule for standards governing 2016 plans No significant shift in the approach to define the EHB; proposed changes aimed at ensuring better prescription drug coverage and habilitation services Ensuring there are adequate networks of MH and SUD service providers Continued work to enforce the requirements of the final parity rule

Questions and Discussion Paul Samuels Dan Belnap Gabrielle de la Guéronnière 23