A Legislative Option in Response to PacificSource's 26-Visit Review Policy
A Healthy Contracts “Do-It-Yourself” Legislative Opportunity For Providers Who want to Protect Individual and Group Practice
Providers have little time and experience constructing legislation that will support providers and patients. The following is a do-it-yourself legislative opportunity. This was created by MRI and is available for providers to use to end ridiculous and weird Healthplan oversight policies that nobody wants. Such policies are window-dressing for risk-score calculations, potential clawbacks, or training AI to audit chartnotes.
Comprehensive List of Definitions:
https://www.mentorresearch.org/healthy-contracts-bill-definitions
DRAFT - Healthplan Audit Transparency and Accountability Act for Mental and Behavioral Health Services.
Sponsored by: [Legislator Name]
Section 1: Title and Purpose
1.1 Title
This Act shall be known as the "Healthplan Audit Transparency and Accountability Act for Mental and Behavioral Health Services."
1.2 Purpose
The purpose of this Act is to protect healthcare providers and patients by ensuring that health plans operate transparently, fairly, and in alignment with shared values and objectives in the context of mental and behavioral health services. This Act mandates the disclosure of oversight processes, the establishment of shared value systems, and the implementation of mechanisms for accountability and quality assurance in the delivery of mental and behavioral healthcare services.
Section 2: Definitions
2.1 Health Plan
A "health plan" refers to any insurance provider offering health benefits or coverage, including commercial insurance plans, Medicare, Medicaid, and other government-funded programs.
2.2 Provider
A "provider" refers to any individual or organization licensed to deliver mental and behavioral healthcare services, including but not limited to psychologists, therapists, counselors, and clinics.
2.3 Shared Values
"Shared values" refer to the ethical and operational principles agreed upon by both providers and health plans, focusing on patient-centered care, quality improvement, and cost-effectiveness. These values are aligned with the Oregon Health Authority's emphasis on evidence-based treatment, patient-centered care, improved quality, and health outcomes at an appropriate cost.
2.4 Oversight
"Oversight" refers to the process by which health plans monitor, evaluate, and regulate the delivery of mental and behavioral healthcare services to ensure compliance with policies and objectives.
2.5 Audit
An "audit" is a formal and systematic evaluation of an organization or a process conducted by an independent body to determine compliance with established criteria, standards, and best practices.
2.6 Audit of a Provider
An "audit of a provider" is a systematic evaluation of a provider's practices to ensure compliance with healthcare standards and regulations, focusing on service delivery, record-keeping, and patient outcomes.
2.7 Health Plan Self-Audit by an Independent Auditor
A "health plan self-audit by an independent auditor" is an internal evaluation performed by an external auditor to assess a health plan's adherence to internal policies and regulatory requirements, focusing on effectiveness, risk management, and control measures.
2.8 Certified Internal Auditor
A "Certified Internal Auditor" is a professionally accredited individual responsible for conducting impartial audits within the health plan. The auditor's oversight includes evaluating compliance with this Act and ensuring alignment with shared values and objectives. The auditor reports directly to the CEO, Board of Directors, or an independent audit and compliance committee, bypassing regular management channels.
2.9 Audit Plan
An "audit plan" is a document that outlines the scope, objectives, criteria, and procedures of an audit, including timelines and responsible parties.
2.10 Risk-Impacting Objective Analysis
A "risk-impacting objective analysis" is an assessment of potential risks that may affect the achievement of objectives, considering the likelihood and impact of those risks.
2.11 Risk Control Matrix
A "risk control matrix" is a tool used to identify, assess, and manage risks associated with a process or organization, outlining the controls in place to mitigate those risks.
2.12 Residual Risk Analysis
A "residual risk analysis" is the evaluation of risks that remain after implementing control measures, assessing whether these risks are within acceptable levels and identifying areas for improvement.
2.13 Ethics Point Portal
An "ethics point portal" refers to an anonymous or self-identified online system that allows providers to report concerns, unethical practices, or discrepancies related to health plan oversight. Providers can choose to disclose their identity or remain anonymous based on their preference.
2.14 Appeal Process
An "appeal process" is a formal procedure allowing providers to challenge audit findings or oversight decisions, ensuring a fair and transparent resolution
2.15 Good Faith and Fair Dealing
"Good faith and fair dealing" refer to the obligation of parties involved in a contract to act honestly and fairly towards each other, ensuring that neither party takes actions that would unfairly harm the interests of the other. This principle mandates transparency, mutual respect, and integrity in all dealings.
2.16 Bad Faith
"Bad faith" refers to dishonest or deceptive practices in contractual dealings, characterized by a lack of transparency, manipulation of terms, and unfair practices that disadvantage one party. This includes creating misleading contract terms, withholding critical information, engaging in unfair negotiations, or otherwise acting in a manner that undermines trust and the contractual relationship.
Section 3: Requirements for Health Plans
3.1 Transparency in Oversight
(a) Health plans must provide a comprehensive overview of their oversight processes, including the criteria, objectives, and controls used in reviews or audits of mental and behavioral health services.
(b) Health plans must publish an annual audit plan, including a risk-impacting objective analysis, risk control matrix, and residual risk analysis specific to mental and behavioral health services. This plan must be accessible to all participating providers.
3.2 Establishment of Shared Values and Objectives
(a) Health plans must engage with mental and behavioral health providers to establish shared values and objectives that prioritize patient care, quality outcomes, and cost-effectiveness, in alignment with OHA values.
(b) Health plans shall conduct regular consultations with providers to review and update shared values and objectives, ensuring alignment with best practices and emerging trends in mental and behavioral healthcare.
3.3 Disclosure of Controls and Audit Criteria
(a) Health plans must disclose the specific controls and audit criteria used to evaluate provider performance and compliance in mental and behavioral health services.
(b) Providers must have access to detailed explanations of audit outcomes and the rationale behind any decisions affecting reimbursements or service approvals.
Section 4: Accountability and Quality Assurance
4.1 Implementation of Ethics Point Portal
(a) Health plans must establish an ethics point portal to allow mental and behavioral health providers to anonymously or self-identified report concerns, unethical practices, or discrepancies in the oversight process.
(b) The ethics point portal shall be regularly monitored and analyzed by a certified internal auditor to identify trends and areas for improvement.
4.2 Independent Oversight and Audits
(a) Health plans must undergo regular independent audits to ensure compliance with this Act's requirements and the integrity of their oversight processes for mental and behavioral health services.
(b) Independent auditors shall evaluate the effectiveness and fairness of the health plan's oversight mechanisms, including the alignment with shared values and objectives.
4.3 Provider Appeal Process
(a) Health plans must establish a clear and accessible appeal process for mental and behavioral health providers to contest audit outcomes or oversight decisions.
(b) Disputes shall first be resolved through mediation. If mediation fails to reach a satisfactory resolution, the dispute shall be submitted for binding arbitration. The venue for arbitration will be the state and location of the provider.
Section 5: Enforcement and Penalties
5.1 Compliance Monitoring
The relevant regulatory body shall monitor health plan compliance with this Act and conduct regular assessments to ensure adherence.
5.2 Penalties for Non-Compliance
(a) Health plans failing to comply with this Act's provisions shall be subject to penalties, including fines, suspension of operations, or revocation of licenses.
(b) Penalties shall be proportionate to the severity and frequency of violations, with repeat offenses resulting in escalating consequences.
Section 6: Implementation and Review
6.1 Implementation Timeline
This Act shall take effect six months from the date of enactment, allowing sufficient time for health plans to implement the necessary changes.
6.2 Periodic Review
The provisions of this Act shall be reviewed every three years to assess their effectiveness, address emerging challenges, and incorporate feedback from stakeholders.
Talking Points - PacificSource 26 Visit Review Policy
Misalignment with Contract Principles of Good Faith
Violation of Good Faith and Fair Dealing: The review policy undermines the principles of good faith and fair dealing, which are central to contractual agreements. PacificSource’s imposition of the 26-visit review can be seen as acting in bad faith by placing undue burdens on providers, potentially disrupting the provider-patient relationship.
Asymmetrical Information: The information used to conduct these reviews is not disclosed to providers, resulting in a significant imbalance. Providers are expected to submit detailed documentation, yet PacificSource does not share the criteria or values guiding the review process. This asymmetry prevents providers from understanding or anticipating how their submissions will be evaluated, leading to potential misinterpretations and unfair assessments.
Hidden Review Process
Lack of Transparency: The review process is opaque, with PacificSource not openly sharing the standards or objectives by which providers are assessed. This lack of transparency can create suspicion and mistrust among providers, who may fear that decisions are made arbitrarily rather than based on clear and objective criteria.
Unclear Appeal Process: Providers are left in the dark regarding the steps they can take if they disagree with a review outcome. Without a clear and accessible appeal process, providers have limited recourse to contest decisions, potentially leaving them vulnerable to unjust determinations that impact their practice and patient care.
Consequences of Arbitrary or Capricious Decisions
Impact on Providers: If PacificSource makes arbitrary or capricious decisions during reviews, providers may face financial and reputational harm. These decisions can lead to denied reimbursements, affecting the financial viability of practices, especially those operating independently or in smaller settings.
Detrimental to Patient Care: Arbitrary decisions can result in patients losing access to necessary mental health services, undermining the quality of care and potentially exacerbating mental health conditions.
Intimidation Tactic: The review process can be perceived as an intimidation tactic, discouraging providers from offering extended care due to fear of triggering burdensome reviews and potential negative outcomes. This fear may lead to self-censorship, where providers limit the number of sessions offered to avoid scrutiny.
Legal and Ethical Implications: Unjust reviews could lead to legal challenges from providers who feel wronged by the lack of transparency and fairness. These challenges could damage PacificSource's reputation and strain relationships with providers, ultimately affecting its network of care.
Why Health Plans Engage in Gaming Practices
Cost Containment: Health plans often introduce policies like the 26-visit review to contain costs. By setting up barriers to extended care, they reduce their financial obligations, prioritizing profit margins over patient welfare.
Risk Management: Health plans seek to limit financial exposure by controlling how services are delivered, often shifting the risk back to providers and patients.
Leverage Over Providers: Such policies give health plans leverage over providers, who may feel compelled to adhere to strict guidelines to avoid negative consequences, even if these guidelines conflict with best clinical practices.
Incentivizing Provider Behavior: By implementing restrictive policies, health plans can influence providers to focus on shorter, less costly treatment plans that align with the health plan's financial goals, potentially at the expense of patient care.
Why Providers Engage in Gaming Practices
Navigating Bureaucracy: Providers might resort to gaming the system as a way to navigate complex and bureaucratic policies that hinder effective patient care. By finding loopholes or adjusting documentation practices, they can continue to provide necessary services within the constraints set by health plans.
Maximizing Reimbursements: In response to restrictive policies, providers may adjust their billing practices to ensure they receive adequate compensation for their services. This might include categorizing services in ways that circumvent arbitrary session limits.
Protecting Patient Care: Providers may alter treatment plans or billing practices to ensure that patients receive the care they need, despite health plan restrictions. This can include stretching the definition of sessions or combining services to fit within allowable limits.
Mitigating Financial Risks: Faced with potential financial penalties or clawbacks from health plans, providers might engage in gaming to protect their practices' financial stability. This includes strategic scheduling or billing to avoid triggering reviews.
Importance of an Ethics Point Portal
Encourages Reporting of Issues: Establishing an ethics point portal allows providers to report concerns or unethical practices anonymously. This encourages honest feedback and ensures that PacificSource is aware of any potential issues or misconduct within its processes.
Absence of Complaints is Not Evidence of No Issues: Without an ethics point portal, the lack of reported complaints may not reflect the absence of issues but rather a reluctance among providers to self-identify and report problems directly to PacificSource representatives. An anonymous reporting system ensures that providers feel safe in voicing their concerns without fear of retribution.
Improves Accountability and Transparency: An ethics point portal can help PacificSource maintain accountability by providing a formal mechanism for addressing and resolving complaints. This transparency can foster trust between PacificSource and providers, leading to more collaborative relationships.
Facilitates Continuous Improvement: Regular analysis of reports submitted through the ethics point portal can help PacificSource identify trends and areas for improvement in its policies and practices, ultimately leading to better outcomes for providers and patients.
Recommendations
Transparent Review Criteria: PacificSource should disclose the specific criteria and values guiding their review process. By doing so, providers can understand expectations and ensure their documentation aligns with these standards.
Defined Appeal Process: Establish a clear and accessible appeal process that allows providers to contest review outcomes. This process should be straightforward, timely, and fair, ensuring that providers have a voice in the evaluation of their care.
Regular Provider Consultations: Engage with providers regularly to discuss review policies, gather feedback, and collaboratively develop criteria that reflect best practices and clinical realities. This approach can help align PacificSource's policies with the values and needs of the provider community.
Independent Oversight: Implement independent oversight of the review process to ensure decisions are made based on objective, evidence-based criteria. This oversight can include audits and assessments by external parties to maintain fairness and integrity.
Legislation for Accountability: Advocate for legislation that establishes clear guidelines and protections for providers against arbitrary and capricious health plan policies. Legislation can mandate transparency in review processes, enforce fair appeal procedures, and require the implementation of ethics point portals. Such laws would create a framework for accountability, ensuring that health plans prioritize patient care and provider collaboration over profit-driven motives.
By addressing these issues through both organizational changes and legislative action, PacificSource can foster a more equitable and transparent relationship with providers, ultimately improving the quality of care for patients and supporting the sustainability of mental health services in Oregon.
Legislative Bill
The Healthplan Audit Transparency and Accountability Act for Mental and Behavioral Health Services
The Healthplan Audit Transparency and Accountability Act for Mental and Behavioral Health Services is a legislative initiative aimed at enhancing transparency, fairness, and accountability in the oversight of mental and behavioral health services by health plans in Oregon. This bill establishes clear guidelines for health plans to follow in their audit and oversight processes, ensuring alignment with shared values and objectives that prioritize patient care and quality outcomes.
A key provision of the bill is the requirement for health plans to provide detailed information about their oversight processes, including the criteria, objectives, and controls used in audits. Health plans must publish an annual audit plan that includes risk assessments and control matrices, promoting transparency and fostering trust between providers and health plans. The bill also mandates collaboration between health plans and providers to establish shared values and objectives, aligning operations with the Oregon Health Authority's emphasis on evidence-based treatment and patient-centered care.
To encourage accountability and continuous improvement, the bill introduces an ethics point portal—an anonymous or self-identified online system for providers to report concerns or discrepancies related to health plan oversight. Regular independent audits are also required to evaluate the effectiveness and fairness of health plans’ oversight mechanisms. Additionally, the bill establishes a structured appeal process, prioritizing mediation and binding arbitration as methods for resolving disputes between providers and health plans, with arbitration taking place in the provider's state and location to ensure accessibility and fairness.
The bill outlines penalties for non-compliance by health plans, including fines, suspension of operations, or revocation of licenses, with penalties proportional to the severity and frequency of violations. By implementing these measures, the bill aims to enhance transparency and trust, improve the quality of care, and protect providers from arbitrary actions by health plans.
Overall, the Healthplan Audit Transparency and Accountability Act seeks to create a more equitable and effective healthcare environment in Oregon by promoting transparency, accountability, and collaboration between health plans and providers. These changes are expected to lead to better health outcomes for patients and a more sustainable healthcare system for all stakeholders involved.
References:
The Problems When Contracts of Adhesion are Offered to Mental and Behavioral Health Providers
https://www.mentorresearch.org/the-problem-when-contracts-of-adhesion-are-offeredContract “Gaming”: Reasons Why Value-Based Contracts Can Fail
https://www.mentorresearch.org/contract-gaming-reasons-why-value-based-contracts-will-failEthics-Point Portals Overseen by Independent Certified Internal Auditor's: A Resource to Serve Stakeholders and the Healthplans
https://www.mentorresearch.org/ethics-point-portals-overseen-by-independent-certified-internal-auditorWhat Can Certified Internal Auditors Do That Will Prevent Healthplans From “Gaming” Providers, Purchasers, and The Public?
https://www.mentorresearch.org/gaming-a-valuebased-contractMedically Necessary and Reasonable Psychotherapy Services.
https://www.mentorresearch.org/medically-necessary-reasonableThe Pacific Source 26 Session Review Is a Utilization Management Audit using Hidden Requirements.
https://www.mentorresearch.org/pacific-source-26-appointments-audit
DISCLAIMER and PURPOSE: This discussion document is intended for training, education, and or research purposes only. The information contained herein is based on the data and perspectives available at the time of writing. It is subject to revision as new information and viewpoints emerge.
For more information see: https://www.mentorresearch.org/disclaimer-and-purpose