The latest round of managed care
lawsuits
focus on fee cuts and access
Mental
health professionals--and the American Psychological Association in
particular--have for decades looked to the courts for relief from the
predations of managed care.
And
they’ve scored a few victories--most prominently in a class action
suit settled in 2005. In that suit, originally brought by physicians
against 12 major managed care organizations, plaintiffs successfully
argued that the companies conspired to deny them compensation.
Now,
lawyers from the American Psychological Association are working on
other fronts. A big part of the current strategy is finding ways to
construe routine managed care policies as violations of parity.
"Managed
care is like a moving target," says Shirley Ann Higuchi, APA’s
assistant executive director of legal and regulatory affairs.
"Some issues that were problematic 15 or 20 years ago have been
corrected. But then they come along with something new that’s
equally problematic. We end up chasing them down every time they
switch gears."
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One current battleground is Florida, where the APA has accused Blue
Cross/Blue Shield of violating the federal parity law by enacting a
33%-54% reimbursement cut. (That’s the "New Directions"
fee cut mentioned in last month’s lead story.)
The
cut only applies to mental health services. That, APA argues,
"violates the Interim Final Rules" on parity issued by the
Department of Health and Human Services (HHS) in February, 2010.
APA’s
Practice Directorate (that’s the office within the Association that
focuses on private practice issues) is arguing that the Florida case
directly parallels a 2003 case. In that instance, CareFirst was sued
successfully by the Virginia Academy of Clinical Psychology (VACP).
Access
and fraud were at issue. VACP contended that 30% rate cuts led
directly to wholesale panel resignations, which in turn meant that the
extensive provider network CareFirst promised its members was actually
a "phantom network."
"It’s
a very similar factual scenario," says Alan Nessman, senior
special counsel with the APA. "A big rate cut causes concerns
about providers being driven out of the network. It’s going to have
a big impact on patient access to care."
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New Jersey is another hot spot. There, APA is making a similar
argument in support of a 2010 lawsuit filed by the New Jersey
Psychological Association (NJPA) against Horizon Blue Cross/Blue
Shield (BCBS) and Magellan Health Services.
The
allegation is that Magellan is asking for too much health care
information about patients before approving treatment sessions.
"They
claim they need it for making medical necessity determinations, but
the response of the NJPA is that the HIPAA privacy law sets standards
for whatever information insurance companies are entitled to
get," Higuchi says.
Again,
access is the ultimate issue: "Patients may be less likely to
seek care if needed," Higuchi tells us, "because they feel
that the demands are onerous and over-reaching. We frequently find
that over-requesting information also serves as a barrier to access of
care for the providers who are trying to deliver it."
Magellan
did not respond to email requests for comment on the suit. Horizon
Blue Cross Blue Shield didn’t respond to phone calls.
APA
is very enthusiastic about these cases--and they may indeed be
winnable. (See the box, above.) On the other hand, there’s an
argument to be made that an eight-figure judgment every 10 years or so
is just part of the overhead for companies like Magellan and United.
We’ll be following up on these and other suits as they develop.
Contacts:
1) Shirley Ann Higuchi, JD, Washington, DC, (202)336-5886,
email: shiguchi@apa.org; 2) Alan Nessman, JD, Washington, DC,
same phone, email: anessman@apa.org.
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