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ARIZONA STATE SENATE
Fifty-Fourth Legislature, Second Regular Session
mental health omnibus
Purpose
Directs health care insurers to comply with the Mental Health Parity and Addiction Equity Act (MHPAEA) and outlines related requirements. Grants the Department of Insurance and Financial Institutions (DIFI) compliance enforcement authority. Establishes the Suicide Mortality Review Team (Team) and the Mental Health Parity Advisory Committee (Advisory Committee). Establishes and appropriates monies to the Children's Behavioral Health (CBH) Services Fund to pay for eligible behavioral health services.
Background
The federal MHPAEA generally precludes health care insurers that provide mental health or substance use disorder (MH/SUD) benefits from imposing limitations on MH/SUD benefits that are more stringent or less favorable than those imposed on medical and surgical benefits. State insurance authorities and the U.S. Department of Health and Human Services have jurisdiction over applicable public sector group health plans while the U.S. Department of Labor and the U.S. Department of the Treasury have jurisdiction over applicable private sector group health plans (MHPAEA).
MHPAEA applies to plans sponsored by private and public sector employers with more than 50 employees and to health care insurance issuers who sell coverage to employers with more than 50 employees. MHPAEA excludes self-insured nonfederal governmental plans that have 50 or fewer employees and self-insured small private employers that have 50 or fewer employees from MHPAEA requirements as specified. According to the Centers for Medicare and Medicaid Services, Medicare, Medicaid and the Children's Health Insurance Program (CHIP) provisions of the Social Security Act that govern CHIP, Medicaid benchmark benefit plans and managed care plans that contract with state Medicaid programs also require compliance with certain MHPAEA requirements (CMS).
MHPAEA specifies that a group health plan or health insurance coverage that includes medical and surgical benefits as well as MH/SUD benefits cannot apply financial requirements, such as deductibles and co-payments, or treatment limitations, such as coverage days, to MH/SUD benefits that are more restrictive than the financial requirements or treatment limitations that apply to medical and surgical benefits. Additionally, if a group health plan or health insurance coverage that includes medical and surgical benefits and MH/SUD benefits provides for out-of-network medical and surgical benefits, the plan or coverage is required to also provide out-of-network MH/SUD benefits (U.S. DOL).
Further, MHPAEA regulations establish a distinction between quantitative treatment limitations (QTLs), such as visit days, and nonquantitative treatment limitations (NQTLs). Examples of NQTLs include medical management, step therapy and pre-authorization. As such, a group health plan or health insurance coverage cannot apply an NQTL to MH/SUD benefits unless the processes and factors used in applying the NQTL are comparable to those used in applying the same NQTL to corresponding medical and surgical benefits.
S.B. 1523 appropriates $8,000,000 from the state General Fund (state GF) to the CBH Services Fund (CBH Fund) to pay for eligible behavioral health services and appropriates $200,000 from the state GF to DIFI.
Provisions
Health Care Insurers
1. Directs health care insurers (insurers) that issue plans in Arizona to comply with MHPAEA.
2. Precludes
an insurer that issues a health plan in Arizona that includes MH/SUD benefits
from denying any claim for such benefits for a minor solely because the MH/SUD
service was provided in a school or other educational setting, or court ordered
and provided by an
in-network provider or permissible out-of-network provider.
3. States that an insurer is not required to approve a claim or provide reimbursement for a MH/SUD service provided by an out-of-network provider except as otherwise required or allowed by a health plan.
4. Permits an insurer to require that any MH/SUD service offered by a mental health provider in an educational setting be provided in a location that is appropriate for the service and in a manner that complies with applicable laws for privacy and the provision of health care services.
5. Requires that claims for MH/SUD services provided by an out-of-network provider and not covered by the insured's health plan solely because of the provider's out-of-network status be paid with monies from the CBH Fund.
Reporting Requirements
6. Requires, after January 1, 2020, on a date determined by the DIFI Director, each insurer to submit a report to DIFI for each fully insured product network type issued by the insurer.
7. Requires that reports subsequently be filed every three years.
8. Requires each report to:
a) describe the development and selection process for medical necessity criteria for MH/SUD benefits and medical and surgical benefits;
b) identify all NQTLs applied to MH/SUD benefits and medical and surgical benefits within each classification of benefits (classification); and
c) demonstrate through analysis that for any NQTL applied to a MH/SUD benefit within a classification any specified standard or factor used in applying a NQTL to MH/SUD benefits in the classification are comparable to, and not applied more stringently than, those used for medical and surgical benefits in the classification.
9. Specifies if the required reportable information varies by provider network, health insurance plan or market size that the insurer must submit a report for each variation.
10. Directs DIFI to analyze the reports and evaluate each health plan's compliance with specified financial requirements and QTL limitations.
11. Requires DIFI to perform the report analysis during the review of other form filings prescribed for insurers and allows DIFI to require an insurer to submit additional compliance data.
12. Permits DIFI to collect and analyze data for each insurer's large group health plans through a separate, consolidated report.
13. Prohibits a health plan from applying any financial requirement or QTL to a MH/SUD benefit in a classification that is more restrictive than the predominant financial requirement or QTL of that type applied to all medical and surgical benefits in the same classification.
14. Prescribes exemptions for multitiered prescription drug benefits, multiple network tiers and subclassifications for specified office visits if certain criteria are met.
15. Requires insurers, in non-reporting years, to file a summary of changes made to the medical necessity criteria and NQTL along with a written attestation specifying the insurer is in compliance with MHPAEA and permits DIFI to require an insurer to respond to additional questions related to the summary.
16. Permits an insurer, three years after filing, updating or refiling an original report, to either:
a) file an updated report; or
b) resubmit the insurer's currently filed report along with a written attestation to DIFI specifying that no changes have been made.
17. Prohibits DIFI from requiring that an insurer submit additional filings or reports if the information required in the prescribed report has been provided in an existing filing or report, with certain exceptions.
18. Requires DIFI to analyze information included in an insurer's previously submitted report or filing to determine compliance with prescribed reporting requirements.
19. Permits DIFI to establish rules related to terms regarding any required resubmittal of information.
20. States that all related documents, reports or other materials provided to the DIFI Director are confidential and not subject to disclosure.
DIFI
21. Directs DIFI to enforce prescribed requirements and prohibitions related to MH/SUD parity and related requirements.
22. Requires, by January 1, 2021, DIFI to develop a webpage that provides the following information in readily understandable language:
a) consumer-friendly information regarding the scope and applicability of MHPAEA and the mental health parity requirements that apply to insurers in Arizona;
b) a guide with information explaining how consumers can file appeals or complaints with DIFI concerning violations of MH/SUD parity requirements; and
c) beginning January 1, 2022, an aggregate summary of DIFI's analysis of the prescribed insurer reports, including any conclusions regarding industry compliance with MHPAEA.
23. Prohibits DIFI from posting any information on the webpage that contains proprietary or confidential information or information that enables a person to determine the identity of an insurer.
24. Requires, beginning in 2022, DIFI to include in its annual report a summary of all stakeholder outreach and regulatory activity related to the implementation, oversight of MHPAEA and related requirements.
25. Requires, by January 1, 2022, DIFI to adopt rules for standards to determine MHPAEA compliance and associated forms and worksheets.
26. Permits DIFI to allow insurers to demonstrate compliance by alternative means deemed acceptable by DIFI.
27. Directs DIFI to conduct workshops and listening sessions to obtain stakeholder input and review the U.S. Department of Labor's MHPAEA self-compliance tool in the development of associated forms and worksheets.
28. Appropriates $200,000 and one full-time equivalent from the state GF to DIFI in FY 2021 and exempts the appropriation from requirements for lapsing.
CBH Fund
29. Establishes the CBH Fund and specifies that CBH Fund monies are continuously appropriated and exempt from lapsing.
30. Requires the Arizona Health Care Cost Containment System (AHCCCS) to enter into agreements with contractors for CBH services using CBH Fund monies and establishes that such agreements must require that:
a) allocated monies are not used for eligible individuals under Title XIX or Title XXI of the Social Security Act;
b) contractors coordinate benefits with third parties that are legally responsible for the cost of services;
c)
contractors make payments to providers according to contracts or the
AHCCCS
capped-fee schedule;
d) contractors submit monthly expenditure reports, as prescribed by the Director of AHCCCS, for the reimbursement of services; and
e) AHCCCS is not held financially responsible to the contractor for costs incurred in excess of allocated monies.
31. Renders AHCCCS as the payor of last resort for individuals eligible for services paid for by the CBH Fund.
32. Establishes that a person who receives services paid for by the CBH Fund is deemed to have assigned AHCCCS all rights to any type of medical benefit to which the person is entitled.
33. Permits a contract to allow for reimbursements for administering agreements and caps such reimbursements at eight percent of the expenditures for services.
34. Specifies that there is no established entitlement for any person to receive any particular service or established duty on AHCCCS to provide services or spend monies in excess of the CBH Fund.
35. Appropriates $8,000,000 from the state GF in FY 2021 to the CBH Fund to pay contractors for eligible services.
36. Exempts the appropriation from lapsing.
Advisory Committee
37. Establishes the Advisory Committee to advise the Directors of DIFI and the Department of Health Services (DHS) relating to mental health parity matters, including recommendations regarding case management, discharge planning and review and appeals processes.
38. Grants the Directors of DIFI and DHS authority to appoint Advisory Committee members and prescribes Committee membership.
39. Permits the Director of AHCCCS to serve as an advisory capacity upon request of the Director of DIFI or DHS.
40. Terminates the Advisory Committee on July 1, 2028.
Team
41. Establishes the Team in DHS, prescribes Team membership and delineates Team duties.
42. Requires that the Team Chairperson, upon request and as necessary to carry out Team duties, be provided access to information and records regarding a Team-reviewed suicide within five days.
43. Permits the Team to request information and records from:
a) a medical, dental or mental health care provider;
b) an insurer; and
c) Arizona or an Arizona subdivision.
44. Allows a law enforcement agency to withhold investigative records requested by the Team if the records may interfere with a pending investigation or prosecution and if approved by the prosecuting attorney.
45. Authorizes the Director of DHS, or their designee, to apply to the superior court for a subpoena to compel the production of records or other evidence related to a person who died by suicide.
46. Exempts law enforcement from producing subpoenaed information if the evidence relates to a pending criminal investigation or prosecution.
47. Prohibits the Team from maintaining written reports or records that contain identifying information.
48. Specifies that records and information acquired by the Team are confidential and not subject to subpoena, discovery or introduction into evidence in a civil or criminal proceeding, with certain exceptions.
49. Prohibits Team members, Team meeting attendees and individuals who present information to the Team from being questioned in any civil or criminal proceeding regarding information presented in a Team meeting or opinions formed as a result of a Team meeting.
50. Permits a Team member to contact, interview or obtain information by request or subpoena from a family member of a person who died by suicide.
51. States that Team meetings are closed to the public when the Team is reviewing information on an individual who died by suicide.
52. Classifies violations of Team-related confidentiality requirements as a class 2 misdemeanor.
53. Specifies that Team members are not eligible for compensation; rather, Team members are eligible for reimbursement of expenses as specified.
54. Requires DHS to provide professional and administrative support to the Team.
55. Terminates the Team on July 1, 2028.
Child Fatality Review (CFR) Fund
56. Directs DHS to train and support the Team and to use CFR Fund monies to staff the Team.
57. Appropriates fee revenue in excess of $200,000, rather than $100,000, in a given fiscal year from the CFR Fund to the Child Abuse Prevention Fund.
Arizona Department of Education (ADE)
58. Directs ADE, by January 1, 2021, to contract with a research entity to conduct a research study, via a request for proposals (RFP) for determining the adequacy of behavioral health services offered in Arizona school districts and charter schools.
59. Requires ADE, prior to issuing the RFP, to jointly convene with the State Board of Education, AHCCCS and a stakeholder group to recommend the scope and sequence of the RFP.
60. Prescribes membership of the stakeholder group.
61. Directs AHCCCS to provide data to the stakeholder group.
62. Requires the research entity selected by ADE through the RFP to:
a) survey identified school districts and charter schools and identify how behavioral health services are delivered to students in those settings;
b) identify behavioral health community organizations and associations that serve school counselors, social workers and psychologists in Arizona;
c) identify best practices relating to the provision of behavioral health services for public school pupils in Arizona;
d) determine the total costs to schools and providers as well as existing barriers in behavioral health services in school settings; and
e) make recommendations on how the quality and accessibility of behavioral health services may be augmented in public schools.
63. Appropriates $300,000 to ADE from the state GF in FY 2021 to distribute to the research entity selected through the RFP.
64. Exempts the appropriated monies from lapsing and specifies that, on July 1, 2023, any remaining unencumbered monies revert to the state GF.
65. Requires ADE, DHS and AHCCCS to reconvene the stakeholder group prior to submitting the required report to evaluate the recommendations and findings.
66. Requires ADE to submit the report, including the stakeholder group's evaluation and summary of the research study's findings and conclusions, to the presiding officer in each chamber of the Legislature and requires that a copy be provided to the Secretary of State.
67. Repeals the prescribed reporting requirement on January 1, 2024.
Miscellaneous
68. Requires, beginning January 1, 2022, identification cards that facilitate an individual's access to services or coverage under an individual or group health insurance contract, evidence of coverage or policy issued by a hospital medical service corporation or disability insurer to display the letters "AZDIFI" as specified and include a telephone number for customer service.
69. Directs DHS to adopt rules relating to discharging patients who have attempted suicide or who exhibit suicidal ideation from inpatient care at health care institutions.
70. Requires discharge rules to include protocols for requiring health care intuitions to implement such protocols and provide patients with information before and at discharge.
71. Requires discharge rules to address:
a) the availability and contact information of age-appropriate crisis services;
b) information and referrals to the next appropriate level of care after discharge;
c) information on the review and appeals process; and
d) conducting suicide assessments before discharge.
72. Exempts DHS from rulemaking requirements for 18 months after the effective date of this legislation and prescribes public comment requirements.
73. Defines relevant terms.
74. Names this legislation Jake's Law.
75. Makes technical and conforming changes.
76. Becomes effective on the general effective date.
Prepared by Senate Research
February 18, 2020
CRS/kja