Editor’s Note: The American Rescue Plan Act of 2021 (ARP) gives states the option of covering community mobile crisis intervention services in Medicaid for five years beginning in April 2022 (see here for additional information on the ARP mobile crisis option). As states review the opportunities to begin, enhance or expand mobile crisis intervention services under ARP, policymakers may consider a hybrid funding model that provides mobile crisis providers with a consistent and steady stream of funding. The new funding model could also be designed to hold payers accountable for covering mobile crisis services when their enrolled members use this essential resource.
In a new issue brief for the Robert Wood Johnson Foundation’s State Health and Value Strategies program, summarized below, Manatt Health presents a sustainable, hybrid coverage and funding approach for mobile crisis services. Under this approach, mobile crisis providers would obtain base funding that would allow them to maintain continuous coverage, as well as third-party insurance reimbursement for services rendered to commercially covered individuals and Medicaid enrollees. Click here to download a free copy of the full issue brief.
The COVID-19 pandemic brought America’s behavioral health needs into sharp relief. Drug-related overdoses increased by more than 30 percent from January 2020 to January 2021 across all demographic groups, with COVID-19 exacerbating worsening trends. Throughout the pandemic, 40 percent of adults reported symptoms of depression and anxiety compared to 10 percent who reported these symptoms from January to June 2019. Despite the universal and growing need, most payers, including commercial insurers, Medicare, TRICARE and large group plans, do not generally cover or pay for mobile crisis services.
A Proposed Hybrid Approach to Mobile Crisis Coverage and Payment
In the context of a growing need for mobile behavioral health crisis services and new federal funding that will partially support development and maintenance of these services, state policymakers have the opportunity to consider a broader, hybrid solution for universal mobile crisis service coverage and funding. This hybrid approach includes strategies to generate base funding for mobile crisis providers to provide a steady stream of funding and enable 24/7 coverage, as well as to expand insurance coverage and payment beyond Medicaid for mobile crisis services.
Base Funding Strategies
States can make base payments to mobile crisis providers to maintain continuous coverage in between calls for assistance by allowing them to use funds to:
- Cover fixed operating, personnel and administrative costs,
- Support training and workforce development,
- Purchase tablets and other technology, and
- Subsidize the cost of providing services to uninsured individuals.
There are a range of funding sources that states and localities can use separately or in combination to finance base payments to mobile crisis providers; some, like state general fund dollars and federal grants, are common funding sources for mobile crisis providers today. Two additional and sustainable sources of base funding for mobile crisis services include:
- 988 fees. Federal statute allows states to impose a fee per line on wireless, wireline and voice over Internet protocol services for 988-related services. These fees are similar to 911 fees in which phone providers charge these fees to subscribers on their monthly bills and then transfer fee-related revenue to the jurisdiction charging the tax.
- Revenue generated by insurer assessments. States can explore imposing or increasing insurer assessments (or allocating revenue generated from existing state assessments on health care insurers) to support base funding to mobile crisis providers. These assessments generally can apply to both Medicaid and commercial insurance revenues.
Strategies to Expand Insurance Coverage and Payment for Mobile Crisis Services
States can utilize several tools to require commercial insurance coverage of mobile crisis services to provide sustainable funding for and ensure access to mobile crisis services. These strategies include:
- Adding mobile crisis services to the essential health benefit (EHB) benchmark plan,
- Enforcing the federal Mental Health Parity and Addiction Equity Act (MHPAEA), and
- Ensuring network adequacy for mobile crisis services.
Adding Crisis Services to the EHB Benchmark Plan
The Patient Protection and Affordable Care Act (ACA) requires insurers that sell fully insured individual and small-employer health plans to cover a minimum set of ten essential health benefits (EHBs), including emergency, mental health and SUD services. In implementing this requirement, the U.S. Department of Health & Human Services (HHS) largely delegated this responsibility to the states but required each state to select an existing health plan from one of ten different group plan options to serve as a benchmark plan.
If a state requires insurers to cover a benefit that is in addition to the benefits covered by a state’s EHB benchmark plan, the state must defray any additional premium cost associated with that benefit mandate. This means that states must pay the cost to the enrollee of covering the additional service. However, several states have found that the annual process for updating the EHB benchmark plan can serve as a safe harbor for adding new benefits without triggering the ACA’s defrayal requirement.
States can also update their EHB benchmark without triggering the ACA’s defrayal requirement if they are doing so to comply with federal law. Under this safe harbor, a state may argue that it is revising the definition of emergency services to include mobile crisis services in order to comply with MHPAEA, which is cited in federal regulations as being integral to the “provision of EHB.”
Enforcing Mental Health Parity Requirements
A state could also consider including mobile crisis services in its broader assessment of whether insurers are complying with MHPAEA. The federal MHPAEA requires both self-insured group health plans and state-regulated insurance plans to cover mental health and SUD services at parity with coverage of other medical services. States use MHPAEA to determine whether state-regulated insurers are applying any coverage limits more stringently to behavioral health emergency services than to other medical benefits, taking into account the processes, strategies, evidentiary standards or other factors used in applying the limitation. Because states are preempted from regulating self-insured employer plans, only the U.S. Department of Labor can conduct the assessment of whether such ERISA plans are compliant with MHPAEA.
Ensuring Network Adequacy for Mobile Crisis Services
For enrollees to have access to covered mobile crisis services when they are experiencing behavioral health crises, their insurers must maintain sufficient networks of mobile crisis services providers. This generally means that the plan must contract with a sufficient mix of providers to ensure that its enrollees can receive covered services without unreasonable delay and within a reasonable distance of the enrollee’s home or workplace. If mobile crisis services become a covered benefit, a state could presumably require plans to include crisis service providers within their contracted network to meet the network adequacy standard.
Another critical issue for states is that mobile crisis providers have not historically been included in plan networks of private health insurers. In those cases, even though the mobile crisis benefit may be covered by a health plan, if patients are treated by an out-of-network provider, they may be expected to pay out of pocket for all or a large portion of the cost. In such cases, states have two main options. They could either (1) establish a fee schedule for these providers and require commercial payers to pay the state-mandated rates; or (2) include mobile crisis provider services among those protected under state and federal surprise medical billing protections.
The federal No Surprises Act, which goes into effect on January 1, 2022, protects patients from unexpected out-of-network medical bills when receiving emergency services and when receiving services from out-of-network physicians working within an in-network facility. The federal law defers to state surprise billing laws that are more protective than the federal standard. A state may include mobile crisis services in its definition of “emergency services” either under its own surprise billing law or by expanding on the federal standard.
Conclusion
A hybrid coverage and financing approach for mobile crisis providers can bring states one step closer to creating a more equitable, universal and sustainable behavioral health crisis system that can serve all individuals in the state. States should look to federal leaders and large, self-insured state employers to collaborate on strategies to ensure establishment of a true universal and all-payer mobile crisis services infrastructure in the United States that encompasses Medicare, self-insured plans and TRICARE, which remain outside of this funding and coverage approach.
NOTE: To help you navigate the challenges and complexities that the No Surprises Act (NSA) introduces, Manatt Health is launching an NSA Toolkit that includes four high-value components to be delivered across the next six months:
- An NSA Tracker that will track guidance from state and federal regulators on how state and federal laws apply. Updated every two weeks to keep pace with new developments, the tracker will provide brief summaries as well as links to each state regulation, bulletin or other guidance.
- Deep-dive analyses of all new NSA-related regulations and their implications.
- Detailed checklists for providers and payers, providing a step-by-step road map to compliance requirements.
- Access to Manatt on Health: Insights You Trust, Manatt’s premium information service that delivers in-depth insights and analysis focused on the legal, policy and market developments that matter to you, keeping you ahead of the trends shaping our evolving health ecosystem. Manatt on Health includes weekly analyses of federal and state health reform activity; detailed regulatory and guidance summaries and analyses of key federal legislation; and 50-state trackers of state actions across a range of key topics, from telehealth changes to 340B to Drivers of Health. The NSA Toolkit gives you three options for accessing Manatt on Health—a full 12-month subscription at a 10 percent discount, a six-month subscription or a one-month free trial.
To learn more, contact Barret Jefferds, director, Manatt Health, at bjefferds@manatt.com.