The Patient Protection And Affordable Care Act Forces Substance Abuse Treatment To Rethink Business Models

Jeffrey C. Lynne, Esq.

Affordable Care Act

The story of where we have been as a country in providing mental health care services is more relevant than ever as we are about to embark collectively on the next great American social experiment – the Patient Protection and Affordable Care Act. And this is particularly relevant to us because the history of American health insurance is a snapshot in time of our ever evolving cultural attitudes and generalizations towards substance abuse and mental health treatment, patients, and those who serve them.

Historically, most insurance plans have provided lower benefits for mental health and substance abuse treatment. Even today, treatment providers and billing companies fight with insurance companies to obtain reimbursement for multi-modal treatments such as acupuncture or massage or other evidence-based treatments. This stands in contrast to coverage for physical ailments and injuries utilizing the same treatment modalities, which treatment often has lower copayments and deductibles as compared to mental illness treatment. Mental health coverage typically is limited by insurance companies for fewer inpatient hospital stays and outpatient visits than their physical medicine counterparts.

With such obvious disparate treatment by insurance companies, why has the American public allowed this to go on for so long? Historically, it was first the state that bore the cost of mental health services, and did so in a low-cost, institutionalized setting reminiscent of many horror movies. After the Olmstead decision, which determined that perpetual institutionalization clearly violated the civil liberties of certain Americans, and as deinstitutionalization progressed towards community-based outpatient mental health services, private health insurance quickly realized these costs were staggering.

As compared to a broken bone or surgery to repair a torn rotator cuff, there is no standard by which we currently measure recovery in mental health and substance abuse. It remains more of an art than a science, though with the utilization of functional MRI’s, that too is changing. But until now, we were not ready to accept the bottomless pit of expenses that achieving true recovery would require. Add to this, the idea that mental illness and, more specifically, substance abuse addiction, was a failing of the patient him or herself, and the appetite to fund mental health care quickly waned.  Our culture of individual responsibility, coupled with our disdain for mental illness, allowed insurance companies to openly shift more and more of the costs of mental health and substance abuse treatment onto the patient, causing many to forego treatment altogether. But all of this was set to change starting in the 1990’s.

Our first modern attempt at health care reform that included mental health care services was actually borne out of the failure of Congress during the Clinton Administration to pass meaningful change. In its place, Congress did pass the Health Insurance Portability and Accountability Act of 1996 also known as HIPAA, the essential aim of which was to eliminate considerations of individual health status from decisions concerning the eligibility and specific coverage costs in the group health insurance market. HIPAA specifically prohibited insurers and employer-sponsored group health plans from considering health status, mental or physical health conditions, claims experience, the prior receipt of care, medical history, genetic information, evidence of insurability and disability in making eligibility and premium decisions in the group market.

But despite these reforms, the law still did not reach insurance plans that reduced the value of coverage for certain individuals such as the mentally impaired or those suffering through substance abuse. In response, Senate Democrats in Congress pushed through the Mental Health Parity Act of 1996. But as all compromise measures prove to be, it was a hollow victory for mental health advocates, as the law contained no mandate to provide mental health and substance abuse services themselves.

Thereafter, during the Bush years and the Republican majority in Congress through most of the 2000’s, public health dollars and private insurance reform was off the American agenda.

But in 2008, at the height of the Great Recession, and tucked inside the Wall Street bailout of that same year, was an enhanced version of the Mental Health Parity Act now named the Health Parity and Addiction Equity Act of 2008. Signed into law on October 3rd, this revised Parity Act required that any healthcare plan offering substance abuse treatment services must do so at the same level as other similar medical services. But still again, the mandate to provide substance abuse and mental health treatment coverage was lacking. In fact, even with the passage of the 2008 Parity Act, consumers continued to pay more for substance abuse hospital admissions than for mental health or medical/surgical admissions. Discrimination or not, our country failed to face the mental health and substance abuse epidemic Michael referred to.

This is where the 2010 Patient Protection and Affordable Care Act is so groundbreaking for the treatment industry. Under this new law, the parity gap between coverage for physical ailments and mental ailments, including substance abuse treatment, is expected to narrow and coverage for such treatments will be more comprehensive. More services will be available and there will be no preexisting condition denial, no treatment limitations and no financial caps that are more restrictive than for physical treatment services.

And how will we do that? By labeling mental health and substance abuse treatment services as an Essential Health Benefit. The “Essential Health Benefits” mandate are procedures and services that all insurance carriers must provide to consumers in all plans. Starting in 2014, all plans must cover these “essential health benefits” which include:

• Ambulatory (outpatient) services;
• Emergency Services;
• Hospitalization;
• Maternity and Newborn Care;
• Rehabilitative Services;
• Laboratory Services;
• Preventative Care Services and Chronic Disease Management;
• Pediatric Services;
• Prescription Drugs; and
• Mental Health and Substance Abuse Disorder Services.

Tie this together with the Parity Act of 2008, and you have the most comprehensive and extended mental health and substance abuse treatment coverage in our nation’s history, as a matter of law.

So, now the question you all have been waiting for is – how does it all actually work? Let me try to give you the “reader’s digest” version of the Patient Protection and Affordable Care Act; what it does and does not do; and how this new law may impact how you are expected to provide and get paid for.

In short the Affordable Care Act is intended to do the following:

• It creates a health insurance marketplace called “Exchanges” where people and businesses can get health coverage at group benefit rates online.
• It requires everyone to obtain insurance or face a tax penalty, referred to as the “Insurance Mandate”.
• It requires insurance carriers to provide coverage of pre-existing health conditions.
• It makes the insurance marketplace more consumer-friendly by simplifying the description of coverage so consumers can make informed choices within the marketplace.
• It holds the line on premium rates by tying rate increases to actual costs and requiring refunds to consumers when premiums exceed a certain amount of healthcare costs.
• It prohibits health insurance companies from either dropping coverage or increasing rates due to making a claim.
• It requires insurance companies to allow parents to provide insurance for their children, up to age 26.
• It requires specific “preventative care” be covered without the need to pay co-pays or co-insurance.
• It creates a mechanism to appeal decisions to deny coverage; and
• It eliminates lifetime and annual coverage limits on coverage for specific “essential health benefits.”

And how are we expected to pay for all of this? By January 1, 2014, the IRS will begin to impose a tax penalty on individuals who are considered to have access to affordable coverage as defined by the Act but who do not obtain it. For the poorest Americans, the Affordable Care Act expands state Medicaid programs.

People considered to be without access to affordable employer sponsored coverage would have access to the Health Insurance Exchanges. Individuals deemed qualified to purchase coverage through the exchanges would, depending on family income, be entitled to advance premium tax credits to try to bring the cost of coverage within the range considered “affordable” under the Act. Employers will be able to purchase coverage through the exchanges and would be entitled to tax subsidies. But larger employers offering no coverage or unaffordable coverage would pay a tax towards the exchange subsidy system.

So what’s the catch and all the brouhaha about? First, the Affordable Care Act has been “designed” under the assumption that the tax penalty applicable to individuals who do not buy affordable coverage will create the type of health insurance and risk pool essential to curbing discrimination against the sick. This is that “insurance mandate” issue that went before the U.S. Supreme Court and was upheld as a lawful tax, rather than a requirement to purchase services.

Second, the Affordable Care Act is anticipated to change the way health care providers get paid, and we all know no one likes change. Currently, American medicine is based mostly on the “fee of service” model, in which a fee is paid for services performed. More services performed, more fees get generated.

The Affordable Care Act envisions a world in which health care providers will be paid on outcome and shared saved expenses. By working together across disciplines, the Affordable Care Act’s drafters predict that the savings in health care expenses can then be shared with the physicians themselves. Stated otherwise, a physician or health care provider will make their money by not submitting patients to unnecessary examinations or tests, but by realizing the shared savings of avoiding unnecessary or duplicitous procedures. And in the field of mental health and substance abuse treatment, the focus will be on cooccurring disorders, and SAMHSA (the Substance Abuse and Mental Health Services Administration) appears to concur.

According to the SAMHSA’s calculations of treatment services in light of the Affordable Care Act, reimbursement models are going to demand treatment be provided in an integrated setting. In doing so, the Affordable Care Act effectively endorses the growing popularity of the data which acknowledges that mental illness often accompanies addiction and substance abuse. Many drug addicts and alcoholics enter drug and alcohol abuse treatment with depression, bi-polar disorder, or behaviors that mimic schizophrenia or other mental illness.

As such, and for at least the past 10 years, integrated care for dual diagnosis patients has become the preferred avenue of treatment, but up until now, only for those who could afford it. But with the Affordable Care Act, this theory is being effectively being adopted as policy, as it is perceived that, for the great majority of Americans, mental illness is the driver of addiction. Integrated drug and mental health treatment appears poised to become the norm as it allows an individual to undergo substance abuse treatment at the same time they are being treated for mental illness, or vice versa.

But this does beg the question – is there an actual existing mental health epidemic, or is the Affordable Care Act going to effectively create one? It is also anticipated that drug and alcohol addiction will slowly shift from the 30 day inpatient model to an outpatient model. This does not mean residential style programs will go by the wayside. Instead, it is viewed as an opportunity for residential style programs to expand their outpatient offerings. The desired outcome is shorter stays in treatment and more aftercare under the theory this follow thru will not only be less expensive but will also lead to higher rates of recovery.

And what does bode for the current treatment model in Florida? As the Affordable Care Act begins to roll out in full in 2014, it would appear that collaboration will be the key to payment. Loosely organized health provider groups, referred to as ACO’s or Accountable Care Organizations, may become the 900 pound gorilla which captures the bulk of the detoxification, residential treatment, and outpatient treatment care, as they will be able to provide a continuum of care across all disciplines. These ACO’s may be best positioned to capture market share since they will be viewed as being able to more efficiently deliver a
comprehensive set of health services.

Existing addiction treatment providers that can demonstrate they are part of an existing ACO-like health network will more than likely be integrated into the provider panels of health insurance plans and become the preferred provider of multiple levels of addiction and mental health treatment and concert with the physicians providing primary care access.

We believe this to be our future as the Affordable Care Act demands more comprehensive patient centered services; evidence based treatments; accountability for outcomes; effective use of health information technology; and fiscal agility to provide higher levels of treatment at lower cost. As such, the failure of unaffiliated treatment providers, at least those who rely primarily on insurance payments, to adequately prepare themselves to integrate into this new payment model will likely find themselves losing market share to more astute providers who took the time to learn about the new law and positioned their business model accordingly.

What we cannot foresee is how and whether the American cultural prejudice against people with mental health disorders or those in recovery from addictions will continue to drive people deeper into the shadows and avoid the care that we have finally made available to them. What we do know empirically is that, at least pre-Obamacare, it has been difficult to treat those with mental illnesses because they seldom seek treatment themselves due in large part to financial burdens and in some instances, that very fear of being labeled and stigmatized.

Ironically, perhaps, though the U.S. Supreme Court in the case of Olmstead v. ex rel Zimring shunned such institutional prejudice and demanded that mental health services be relocated out of institutions and into the communities, the Affordable Care Act would seem to favor the larger health care model that, inevitably, may drive service providers back into large institutional campus settings.

In closing, the future is not clear as it relates to the Affordable Care Act. The law is not a mandate as much as a grand social experiment to see if we can use the marketplace itself to shift our cultural beliefs about healthcare and what are essential health services. Much of what we said today is therefore only speculations, notwithstanding that others in the field agree.

What is not speculation however is that treatment providers who rely on insurance must reframe their business models and prepare for the new law; else they will find themselves unable to compete in the new paradigm of healthcare which includes mental health and substance abuse treatment services. Simply stated, it’s time to wake up and smell the coffee. The Affordable Care Act is here and it’s here to stay.

Likewise, we must remain mindful to avoid the commonly held belief that mental health and substance abuse disorders are a choice. They are real and significant health concerns that must be addressed and the Affordable Care Act boldly makes that pronouncement. And while we may have now overcome the financial barriers to that care, we must continue to remain vigilant to provide a safe space for people to come out from the shadows and actually seek the care and treatment that we have now made universally available.

Jeffrey C. Lynne, Esq., is the Managing Partner of Weiner, Lynne & Thompson, P.A., a Delray Beach, Florida, law firm specializing in land use & zoning, litigation, transactional real estate, and government regulatory law. Mr. Lynne and his firm represent a large number of substance abuse treatment providers and owners of sober living residences throughout the State of Florida.