CMS’ efforts to improve the delivery of primary health care moved into new territory this week when the agency announced a new five-year delivery model, Comprehensive Primary Care Plus (CPC+), which CMS’ chief medical officer described as “the future of health care.” CMC+ will launch in January 2017, and evolves from the Comprehensive Primary Care initiative that CMS began in 2013. The announcement of CMS+ comes on the heels of CMS’ March 2016 announcement that it met, ahead of schedule, its goal of tying 30% of Medicare payments to quality-and-value-based alternative payment models by 2016. CMS’ new goal is to make 50% of Medicare payments via alternative payment models by 2018.

CPC+ is CMS’ largest ever such model, and is expected to be implemented in up to 20 regions accommodating 20,000 physicians and clinicians and the 25 million people they serve. Under CMC+, Medicare will partner with commercial insurance plans and state Medicaid agencies to support delivery of advanced primary care by primary care practices (PCP).

PCPs participating in CPC+ will proceed along one of two tracks. Track 1 PCPs must help patients with serious or chronic diseases meet their health goals, give patients 24-hour access to care and health information, deliver preventive care, involve patients and their families in patient care, and work with other health care partners to deliver coordinated health care. Track 2 PCPs must, in addition to these services, provide patients who have complex medical and behavioral health needs with more comprehensive services, which may include systemic assessment of their psychosocial needs and an inventory of resources and supports to meet these needs.

Track 1 PCPs will receive a monthly care management fee in addition to fee-of-service payments under the Medicaid Physician Fee Schedule. Track 2 participants will receive an on-average higher monthly care management fee and a hybrid of reduced Medicaid fee-for-service payments and up-front comprehensive primary care payments. The hybrid payments are intended to give providers freedom to find ways to deliver health care outside of traditional person-to-person encounters.
CMS is soliciting payer proposals to partner with Medicare in CPC+ through June 1, 2016, after which it will identify regions in which PCP+ will be implemented. The geographic reach of selected providers will be a factor in determining the choice of the CPC+ regions. From July 15 to September 1, 2016, CMS will publish the CPC+ regions and solicit applications from practices in these regions. Practices will apply directly for the preferred track, however applicants for the more remunerative Track 2 must include in their application a letter of support from their Health IT vendor that discusses the vendor’s commitment to support the PCP with advanced Health IT capabilities.

[Sources: CMS launches largest-ever multi-payer initiative to improve primary care in America; Comprehensive Primary Care Plus; and Health Care Payment Learning and Action Network, all from CMS.gov.]

The ACA generally requires issuers of non-grandfathered health insurance coverage offered in the group and individual markets to guarantee availability of coverage. The final regulations related to this requirement equate discrimination in marketing practices or benefit designs with a violation of the guaranteed availability requirement. Specifically, 45 CFR § 147.104(e) states that:

(e) Marketing. A health insurance issuer and its officials, employees, agents and representatives must comply with any applicable state laws and regulations regarding marketing by health insurance issuers and cannot employ marketing practices or benefit designs that will have the effect of discouraging the enrollment of individuals with significant health needs in health insurance coverage or discriminate based on an individual’s race, color, national origin, present or predicted disability, age, sex, gender identity, sexual orientation, expected length of life, degree of medical dependency, quality of life, or other health conditions.

Id. (emphasis added). On March 14, 2014, CMS issued a FAQ to clarify that as the term “sexual orientation” is used in this regulation, an issuer is considered to employ marketing practices or benefit designs that discriminate on the basis of sexual orientation if:

• the issuer offers coverage for an opposite-sex spouse, and

• does not offer coverage on the same terms and conditions to a same-sex spouse, provided

• the same-sex marriage was validly entered into in a jurisdiction where such marriages are legal, regardless of the laws of the jurisdiction where the insurance policy is offered, sold, issued, renewed, in effect, or operated, or where the policyholder resides.

The regulation is not intended to require an issuer to change terms of eligibility for coverage under a plan, or otherwise interfere with a plan sponsor’s ability to define a dependent spouse for purposes of coverage eligibility under the plan. It requires only that if coverage is made available to an opposite-sex spouse, it must also be made available on the same terms and conditions to same-sex spouses.

Enforcement of this nondiscrimination requirement is delayed until plan or policy years beginning on or after January 1, 2015, because CMA “recognize[s] that some issuers may not have understood the prohibition as described [in the FAQ] when designing their policies for the 2014 coverage year.” States also will be expected to enforce the regulation for plan or policy years beginning on or after January 1, 2015.

–         Dorman Walker dwalker@balch.com

Under the ACA, mental health and substance use disorder services are one of 10 essential health benefits that must be (1) included in health plans offered in the individual and small group markets, and (2) offered by Medicare programs in states that are expanding their Medicaid programs. These services include behavioral health treatment, counseling, and psychotherapy.  The ACA requires these services by amendment to the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA).

On November 8, 2013, the final rule implementing MHPAEA were released.   <www.dol.gov/ebsa/pdf/mhpaeafinalrule.pd> The new regulations apply to individual health insurance coverage for policy years beginning on or after July 1, 2014, and apply to both grandfathered and non-grandfathered plans. The final rule preplaces the interim rule that applied to plan years beginning on or after July 1, 2010.

In general, the final rule:

• requires insurance benefits (both services and items) for mental health and substance use disorder conditions to be comparable to benefits for medical and surgical conditions;

• states that copays, deductibles, and visits limits for mental health and substance use condition benefits cannot be more restrictive than they are for medical and surgical benefits;

• requires parity for intermediate levels of care – care that falls between a visit to a doctor and care in a hospital – such as care received in residential treatment or intensive outpatient settings;

• provides for disclosure to consumers of what benefits are provided, how coverage is determined, and what standards are used to evaluate claims;

• applies parity to all plan standards, including geographic limits, type of facility limits, and network adequacy; and

• eliminates an exception in the interim rules regarding non-quantitative treatment limitations between medical/surgical benefits and mental health/substance use disorder benefits that was determined to be confusing, subject to abuse and unnecessary.

The final rule responds to criticisms that the interim final rule was vague and allowed insurers too much room for interpretation, including in the area of parity between nonquantitative treatment limitations for medical and surgical benefits and NQTLs for mental health and substance use disorder benefits. Examples of NQTLs provided in the final rule are medical management standards limiting or excluding benefits based on medical necessity or medical appropriateness, or whether treatment is experimental or investigative; formulary design for prescription drugs; standards for provider admission to participate in a network, including reimbursement rates; methods for determining a course of treatment; exclusion based on a failure to complete a course of treatment and restrictions based on geographic location, facility type, provider specialty, and other criteria that limit the scope or duration of benefits for services provided under the plan or coverage; and first-fail policies or step protocols, which allow the insurer to refuse to pay for higher cost therapies until it can be shown that lower-cost therapy is not effective.

As to this last NQTL, the final rule provides an example, in which a plan requires prior authorization to determine whether a treatment is medically necessary. In the example, inpatient medical/surgical benefits are routinely approved for seven days, after which a treatment plan must be submitted by the patient’s attending provider and approved by the plan, however inpatient mental health/substance use disorder benefits routinely receive approval for only one day, after which a treatment plan must be submitted and approved.  This NQTL  violates the final rule, “because it is applying a stricter nonquantitative treatment limitation in practice to mental health and substance use disorder benefits than is applied to medical/surgical benefits.”

Whether the final rule will be more effective than the interim final rule at preventing discriminatory NQTL – or discrimination in general between medical/surgical claims and claims for mental health/substance use disorder – remains to be seen.