Recent Changes in Medicaid Policy and Their Possible Effects on Mental Health Services

Abstract

Back to table of contents Previous article Next article Other ArticlesFull AccessRecent Changes in Medicaid Policy and Their Possible Effects on Mental Health ServicesJeffrey A. Buck Ph.D.Jeffrey A. Buck Ph.D.Search for more papers by this authorPublished Online:1 Nov 2009https://doi.org/10.1176/ps.2009.60.11.1504AboutSectionsPDF/EPUB ToolsAdd to favoritesDownload CitationsTrack Citations ShareShare onFacebookTwitterLinked InEmail By now, it is generally understood that Medicaid is the nation's primary payer for mental health services, particularly public mental health services. In 2003 it is estimated that the Medicaid program accounted for nearly half of all federal and state mental health spending ( 1 ). Within state mental health agency budgets, Medicaid accounted for 42% of revenue in 2005 and nearly two-thirds of all new spending from 2001 to 2005 ( 2 ). Analysts have identified some of the consequences of this greater reliance on Medicaid as a source of public mental health services financing ( 3 , 4 ). These consequences stem from the attractiveness of federal matching funds and the characteristics of Medicaid as a health plan program with rules governing enrollment, services, and payment. For example, the rise of Medicaid has meant a larger role for state Medicaid authorities in state mental health services with a corresponding decline in the role of mental health authorities. Increased use of Medicaid managed care arrangements has had the effect of privatizing functions that were previously provided by public entities. For mental health providers, increased funding from Medicaid has meant a decrease in the relative importance of funding from grants or contracts and a decrease in the flexibility associated with such funding. Although these effects may appear negative to some, it is important to note that Medicaid has been credited with reducing reliance on public hospitals as a source of care. Further, Medicaid has provided the means by which states have significantly expanded community-based mental health care. Medicaid's role in the mental health service system was also reviewed by the President's New Freedom Commission on Mental Health. The commission, and its Medicaid subcommittee, identified Medicaid as a potentially important force for system transformation ( 5 ). It suggested a number of changes to the program to support transformation goals in the areas of access, service delivery, planning, and consumer responsiveness. For example, it recommended that consumer choice and control be promoted and that incentives for community-based care be expanded. As noted by these analyses, many changes in mental health services have occurred as a result of the general character of the Medicaid program. Medicaid is not a static program, however, and its features are constantly changing as a result of policy and administrative decisions. Some of these decisions target issues specific to mental health services, providers, or users. However, most do not. But the reliance on Medicaid as the major funder of public mental health services means that changes in the program can have significant impacts on the publicly funded mental health system, regardless of whether they are intended or understood. In this article I describe some changes in Medicaid policies that have occurred in the past several years and that are likely to have a significant impact on mental health services. This description expands on previous related analyses by Day ( 5 ) and Koyanagi ( 6 ) and incorporates information on policy changes and administrative actions that have occurred since those analyses were published. Many of the changes I review are not specific to mental health and therefore involve judgments for which others may have different views. Some are the result of statutory or regulatory actions, whereas others have been implemented through audits or other methods that may be less well known. A recent phenomenon that complicates analytic efforts is the expanded use of less formal administrative mechanisms as a means of implementing program changes. Traditionally, in the Medicaid program, program or policy changes of any significance were implemented by statutory or regulatory change or explained through state Medicaid director letters or changes to the state Medicaid manual. However, increasingly program changes also are being instituted through means such as program audits or requirements for approval of state plan or waiver requests. Because such actions are less transparent, it is more difficult to identify and understand them.Another change in Medicaid policy making in recent years has been the increasing use of grant programs within the overall program as a means to address specific program issues or to motivate states to adopt innovative practices. The size of such programs often equals or exceeds that of other federal agencies that more commonly promote their mission through grant mechanisms. For example, the Money Follows the Person demonstration, which promotes the deinstitutionalization of Medicaid beneficiaries, is projected to total $1.75 billion through 2011.Recent policy changesThe variety of Medicaid policy changes affecting mental health services in the past several years can be confusing, but most reflect one or more of a few general policy themes. First, both Congress and the Centers for Medicare and Medicaid Services (CMS) have been concerned with state efforts to use federal matching funds under Medicaid to support a variety of services that could be supported under other federal or state authorities. Changes to address this concern include those intended to reinforce the authority of the state Medicaid agency and to reduce or eliminate the flexibility that states have been allowed in the past to support particular groups or services. Second, in addressing issues with an effect on mental health services, few actions have treated mental health services differently from other types of health care. Accordingly, providers are being held more accountable for program compliance, and special administrative, billing, or other provisions for mental health services are increasingly under challenge. Third, Congress has supported changes to the program intended to make it easier to use Medicaid to cover the uninsured, and in doing so, Congress has relaxed requirements for equitable mental health benefits. Fourth, some policies are expressly targeted at reversing some of the traditional institutional bias in Medicaid policy by extending or strengthening policy limits on institutional care while simultaneously increasing community-based alternatives. Finally, CMS has embraced the goal of consumer empowerment and has promoted this goal in recent rule making.Reinforcing the state Medicaid authority As Medicaid has accounted for an ever-growing proportion of state mental health agency budgets, many states have created administrative arrangements that give mental health agencies significant authority over their Medicaid-supported services. A recent survey of such arrangements shows that they can include such functions as provider certification and enrollment and rate setting ( 7 ). Despite such arrangements, federal Medicaid policy requires that there be a single state agency to administer the program and that this agency must exercise ultimate authority in its operation. Although this requirement has existed since the beginning of the program, recent actions suggest a renewed effort to restate and enforce this authority, increasing the control of state Medicaid agencies over the entirety of the program. For example, a Medicaid audit in one state of residential services for children with emotional disturbances found a lack of Medicaid agency oversight along with a number of other deficiencies ( 8 ). Administrative functions such as provider enrollment, rate setting, and service authorization were identified as areas in which the Medicaid authority needed to demonstrate direct control. Reducing funding flexibilityStates and providers have often sought ways to use Medicaid funds to support services or groups beyond those that traditionally fall within the scope of the program. Some of these strategies have been allowed within existing program rules, whereas others have been questioned by Medicaid authorities and auditors. Regardless, both Congress and CMS have taken actions in the past five to ten years to more strictly limit what is paid for within the Medicaid program and make it more difficult to use Medicaid funds in areas not clearly within the program. One area affected by these changes has been managed behavioral health care. Until recently, states had flexibility, with CMS approval, in the use of funds provided through managed care arrangements. This flexibility allowed them to support otherwise noncoverable activities with "savings" under capitation or similar managed care payment arrangements. However, in 2003 CMS initiated new rules implementing provisions of the Balanced Budget Act of 1997. These requirements effectively ended such arrangements by requiring states to set "actuarially sound capitation rates" for managed care programs that exclude payments for noncoverable services or groups from rate-setting calculations. In states relying heavily on managed care arrangements to support behavioral health care this change often resulted in decreases of 15% or more ( 9 ). Other actions are intended to reinforce the principle that Medicaid should be a payer of last resort and to ensure that Medicaid payment does not substitute for spending that properly falls under the authority of other programs. Within the Deficit Reduction Act of 2005 (DRA), prohibitions emphasize that Medicaid coverage is not available for case management services if a medical, social, educational, or other program is liable for them ( 10 ). Increasing provider accountability Associated with efforts to reinforce the authority of the state Medicaid agency are those designed to increase the accountability of individual service providers. Traditionally, specialty mental health providers have primarily looked to state licensing and mental health authorities for assurances of compliance with applicable state and federal standards. In this environment, providers relied upon state authorities for determinations of program compliance and for direction about issues concerning billing and service delivery. However, changes in Medicaid program oversight are increasingly asserting a principle of direct provider accountability for compliance with Medicaid requirements, independent of assurances or directions received from state authorities, including mental health authorities. In the area of behavioral health, these actions are motivated by audit findings suggesting that this is an area needing additional scrutiny. Several audits of claims for case management and rehabilitative services by behavioral health providers have found large proportions of such claims with missing or inadequate documentation or for noncovered services ( 11 , 12 ). Congress boosted efforts to improve accountability through the creation of a new Medicaid Integrity Program as part of the DRA ( 10 ). This program is described as the "first national strategy to detect and prevent Medicaid fraud and abuse in the program's history" ( 13 ). Under it, CMS is provided with significant additional resources for reviews and audits. Other requirements increase the responsibilities of providers for ensuring billing integrity and specify consequences for failing to do so. Providers receiving five million dollars or more in Medicaid funds must establish a compliance program, with elements such as staff training, that helps ensure that billing is accurate. Further, states are given incentives to establish false claims acts, modeled after the federal False Claims Act. Such legislation would contain whistleblower provisions and require only that a provider meet a "reckless disregard" standard for imposition of penalties, rather than demonstrate actual fraudulent intent ( 14 ). Additional requirements promoting provider accountability are incorporated in new regulations for case management. These require providers to maintain records that include information such as the nature, content, and units of the service and timelines for obtaining services and reevaluating the plan ( 15 ). Retreating from paritySince passage of the original federal legislation providing for partial mental health parity in insurance plans, advocates have worked toward a broader mandate that would provide for full equivalence between mental health and general medical insurance coverage. In 2008 these efforts resulted in the passage of legislation providing for full parity of mental health benefits for private health plans and the phased elimination of differential copayments for mental health visits in Medicare. However, in roughly the same period that these efforts were progressing, changes instituted by Congress in the DRA have served to undermine the principle of equitable coverage of mental health and general medical benefits. Under section 6044 of the DRA, a new section of Medicaid law was created (section 1937) that offered states the option of providing more limited benefit coverage to certain groups of beneficiaries ( 10 ). Among the provisions under this option is a requirement that if states model mental health coverage after that prevalent in private health plans, they need to provide benefits at only 75% of the actuarial value of the reference plan. In essence, this allows states to offer coverage of mental health services at a level that is not even equivalent to the (nonparity) level of coverage typical of private health plans. Of equal concern is an additional provision that allows the Secretary of the Department of Health and Human Services to approve other proposed coverage that does not even meet this standard. Koyanagi ( 6 ) also pointed out that other parts of the DRA permit states to make greater use of copayments and for the first time to charge premiums to certain groups. Reducing incentives for institutionalizationAlthough the actions described above might be characterized by some as efforts to limit Medicaid support for mental health services, other changes reflect goals related to rebalancing the service system and promoting consumer empowerment. One set of such changes concerns actions that either further limit the availability of Medicaid funding for psychiatric institutions or provide additional incentives for placing individuals in smaller, homelike residential settings. Two of these concern changes in standards and practices related to the prohibition on Medicaid funding for persons in institutions for mental diseases (IMDs). For example, CMS had previously granted limited exceptions to this exclusion in the context of managed care demonstrations, with the rationale that some use of such services could be allowed if cost savings could be demonstrated. Despite this, without any formal announcement or explanation, CMS recently dropped this practice and no longer grants such exceptions. Another change related to the IMD exclusion concerns psychiatric residential treatment facilities (PRTFs) for children that are funded under the Medicaid option for inpatient psychiatric hospital services for individuals younger than 21 years. Previously, it was understood that in states with this optional benefit, children in these facilities were eligible for all Medicaid services under the state plan. However, in a review of PRTFs in New York, the inspector general took the view that the under-21 benefit created only a limited exception to the IMD exclusion, meaning that only inpatient psychiatric care could be provided under the benefit. All other medical or dental care would not be coverable ( 16 ). In addition to actions designed to extend the reach of the IMD exclusion, new options under Medicaid include provisions designed to discourage placement of individuals in settings with institutional characteristics. These provisions reflect the orientation of the Americans With Disabilities Act, which emphasizes the functional operation of a residential setting, rather than its formal licensure or administration, in determining its status as an institution. For example, two CMS demonstration grant programs both have provisions requiring the use in most cases of small group settings in situations where individuals do not live on their own or with their family ( 17 , 18 ). These are defined as settings that house no more than three or four unrelated individuals. Similarly, under proposed standards for the new option for Home and Community-Based State Plan Services (section 1915(i) of the Social Security Act), states would have to ensure that community placements were homelike, allowing residents to have control over areas such as access to private quarters and with whom they share their living space ( 19 ). Promoting community-based services In addition to further limiting support for psychiatric institutionalization and encouraging smaller community residential settings, new initiatives and program options have provided incentives for states to transition individuals from institutions to community living. Two such initiatives are the demonstration program for Community-Based Alternatives to Psychiatric Residential Treatment Facilities and the Money Follows the Person demonstration. The PRTF demonstration, created under the DRA, provides more than $200 million to develop demonstration programs for home and community-based services to children and adolescents as alternatives to PRTFs ( 17 ). Extended by the DRA, the Money Follows the Person demonstration will support state efforts to rebalance long-term care systems to transition individuals from institutions into the community, including those with mental illness ( 18 ). Grants totaling $1.75 billion will be awarded to states through 2011 and provide for enhanced federal matching funds for home and community-based services for individuals transitioned from institutions to the community during the demonstration period. Recent changes to state plan options under Medicaid also promote community-based services for persons with mental illness. Under the home and community-based services waiver option (section 1915(c) of the Social Security Act), states have long been permitted to waive certain Medicaid requirements to furnish services that promote community living that otherwise would not be paid for under the Medicaid programs and to target such services to particular groups or geographic areas. To do so they had to show that such services were less expensive to Medicaid than the institutional alternative. However, despite the widespread use of these waivers for groups such as elderly persons or those with physical disabilities, less than 1% of those receiving 1915(c) services have been persons with mental illness, and most of those have been children ( 20 ). One reason for this has been confusion about the availability of these services for this part of the Medicaid population. Under some interpretations, persons with mental illness are assumed to be appropriately institutionalized only in IMDs. Because Medicaid does not generally pay for care in such settings, it has been argued that 1915(c) services, which require a demonstration of cost neutrality, cannot be provided to such individuals. However, CMS has recently clarified the availability of such waivers for persons with mental illness residing or applying for admission to non-IMD settings, such as nursing facilities. Additionally, CMS staff have offered to assist states in developing waiver applications targeted to this population. In part because of this clarification of policy and offer of assistance, two additional states (Montana and Wisconsin) have received approval for 1915(c) programs targeted to adults with mental illness, whereas only one state had a 1915(c) program before. The use of such waivers is still restricted to those residing in or applying to non-IMD settings such as nursing homes or hospitals, however. Accordingly, the 1915(c) waiver option is of limited assistance to states that rely more on psychiatric settings for institutional placement. For such states, the DRA has provided an alternative through the creation of a new state plan option (section 1915(i) of the Social Security Act) ( 10 ). Under this option, states do not have to demonstrate cost neutrality as a condition for offering the kinds of services normally supported through a 1915(c) waiver. Further, unlike 1915(c) waivers, which require periodic reauthorization, once the state plan amendment is approved, the program can continue indefinitely until the state decides to change it. Although particular beneficiary groups cannot be targeted under the option, the selection criteria and covered services can be designed so the participants are primarily those with mental health service needs. Empowering consumers One of the primary principles of the report of the President's New Freedom Commission on Mental Health was that services be consumer centered, offering consumers genuine choices about service options and providers ( 21 ). In support of this principle, the commission recommended that individualized plans of care be developed for those with the most serious illnesses and that consumers be involved in the development of such plans. Increasingly, Medicaid legislative, regulatory, and program policies are promoting and enforcing the principle of consumer choice and consumer-centered services. Requirements for case management services in the DRA call for individualized assessments of service needs and development of a care plan based on the assessment. They also emphasize the participation of the individual in the development of care plan goals. Associated regulations proposed by CMS additionally require that individuals be allowed the free choice of any Medicaid case management provider.Another example of the increasing emphasis on consumer-centered services concerns the creation in the DRA of a new Medicaid state plan option to support self-directed personal assistance services (Cash and Counseling). This option allows individuals to hire individuals both to provide these services and to manage the budget that has been determined for the services. Further, similar to requirements for case management services, services need to be determined through a person-centered planning process. Person-centered planning and employer and budget authority for participants are also part of the Money Follows the Person demonstration. Other actions by CMS have further promoted the goal of consumer-centered planning and services. In 2007 a letter to state Medicaid directors provided guidance for covering peer support services for persons with mental illnesses and substance use disorders within their Medicaid programs ( 22 ). Among other requirements, this guidance required the incorporation of person-centered planning and individualized plans of care. Implications for mental health servicesMedicaid's becoming the primary payer of mental health services has already changed the organization and delivery of such services through its general character. These effects include an increase in the role of state Medicaid authorities, privatization of some service delivery through managed care arrangements, and greater funding for community-based mental health care. The recent developments in Medicaid policy described above likely will accelerate some of these changes while introducing new ones. These changes include effects on the organization and makeup of the mental health service system, the operation of specialty mental health providers, and the nature of mental health services.Organization of the mental health service systemThe greater reliance by states on Medicaid for funding mental health services has already increased the role of Medicaid authorities in the design and administration of such services. However, the increased emphasis through audits and regulatory language on the primacy of the state Medicaid authority will likely accelerate this trend. Further, audits finding major deficiencies in program compliance by specialty mental health providers may encourage states to give Medicaid authorities more direct control over providers who previously were primarily accountable to mental health authorities. As a result, the autonomy of mental health authorities in the operation of specialty community services could be further constrained.Another effect of policy changes may be to change the extent and nature of psychiatric institutions. Policies that have the effect of expanding the impact of the IMD exclusion coupled with those promoting deinstitutionalization and community-based services will provide additional fiscal and program incentives to downsize or eliminate such facilities. Downsizing may occur because IMDs are statutorily defined as facilities of greater than 16 beds. In the case of PRTFs, for example, limits on payment for nonpsychiatric services stemming from the IMD exclusion would not apply for facilities under this size. Besides the impact on state administrative arrangements and institutional services, recent policy changes will likely accelerate the decline in what Frank and Glied ( 23 ) referred to as "mental health exceptionalism." They defined this term as policies that differ from those for the general health care system because of what is viewed by some as the unique nature of mental disorders and mental health services. By increasing the enforcement of Medicaid requirements with mental health service providers and by increasing the direct control of Medicaid authorities over these providers, these services will more often be mainstreamed into the general health care system and its providers treated no differently than other Medicaid providers. Mainstreaming mental health services, however, does not necessarily mean that the unique characteristics of these services and those that use them will be ignored. In its policy development CMS has already demonstrated an awareness of some of the special characteristics of the mental health service system. However, to be completely effective in the design and administration of these services, both state and federal Medicaid authorities will need to fully acknowledge the primacy of their role in this area and act accordingly with respect to program administration and interaction with mental health agencies, providers, and consumers.Operation of specialty mental health providersPublicly funded specialty providers used to rely on grants and contracts from public agencies to support the bulk of services that they provided. Such financing systems, while incorporating requirements for service quality and accountability, still allowed considerable freedom of action in the determination of who to serve with such dollars and what services to provide. Further, specialty providers largely depended on determinations of non-Medicaid state agencies for compliance with applicable requirements. The growth of Medicaid and recent policy initiatives have been changing this. In this new environment, assurances of program compliance from state oversight agencies do not absolve providers of independent responsibility for meeting applicable Medicaid requirements and demonstrating proactive efforts to meet such requirements. For many, this may represent a level of vulnerability that they may not be used to.Character of mental health servicesIn addition to discouraging the maintenance and utilization of large psychiatric institutions, these policies are likely to encourage changes in the character of service delivery in several areas. One such area is person-centered planning. Mental health consumer advocates have often complained about services that are developed and delivered by providers with little input or participation from them. Medicaid now has stronger requirements for individualized care planning that meaningfully involves consumers and their family members. Further, Medicaid policies that emphasize consumer choice of providers and provide options for self-direction do more to orient services away from a philosophy that minimizes consumer participation in treatment plan determination and choice of provider.A related change may occur in perspectives on institutional and community-based care. In mental health, state policy makers have sometimes focused almost exclusively on traditional psychiatric institutions in considering issues of deinstitutionalization and community-based care. From this perspective, most residential settings that are not public psychiatric hospitals are considered to be "community" settings, regardless of their size or character. Such views are challenged by the Medicaid policies described here, which take as a premise that the institutional character of any facility is less related to its licensure or other formal characteristics than it is to the autonomy, freedom, and opportunities to participate in community life that it offers its residents.Concerning service delivery, these policies will likely accelerate the mainstreaming of mental health services in the general health care system. This change may do more to encourage treatment approaches that address the holistic health needs of the person, rather than the particular specialty or orientation of the provider. However, the policies also may produce new problems if they are implemented without regard to the particular needs and characteristics of those with mental illness or the associated nonmedical services needed for full recovery. Finally, because many of the policy changes described in this article were instituted during the Bush administration, it is reasonable to consider whether and to what degree they will be continued under the new Obama administration. For example, the case management regulation described earlier is part of a group of Medicaid regulations that were placed under a congressional moratorium in the past year because of complaints from providers or other groups or because of concerns that they exceeded reasonable program authority. In May 2009 CMS announced its intent to rescind the most controversial sections of this rule ( 24 ). These include sections related to payment methods and specific restrictions on Medicaid payment for case management services provided through other programs. However, restrictive language from the DRA concerning services payment remains, along with other requirements, in the rule related to documentation, planning, provider qualifications, and consumer participation. Similarly, it seems likely that other policy changes outlined in this article, while possibly being modified in degree, will be continued. This is either because they enjoy general support, such as for efforts to expand alternatives to institutions, or because they are directed to issues associated with the integrity and costs of the program, such as with efforts to ensure that Medicaid is the payer of last resort. Thus, although there may be some modifications in the specifics of individual policies or their administration, their general effects on mental health services likely will remain. Acknowledgments and disclosuresThe author thanks Barbara Edwards, Mary Gilberti, J.D., Chuck Ingoglia, M.S.W., Ann Kohler, and Rita Vandivort-Warren, M.S.W., for helpful comments on the manuscript.The author reports no competing interests.Dr. Buck is affiliated with the Center for Mental Health Services, Substance Abuse and Mental Health Services Administration, 1 Choke Cherry Rd., Room 2-1089, Rockville, MD 20857 (e-mail: [email protected]).