Primary Focus: Access to Services Agency: Department of Human Services Title/Description: Cost Sharing Citation: N.D. Admin. Code 75-02-02-09.1 Summary: Provides mandated co-payments for services rendered at Nursing Facility Level of Care, noting that behavioral health services are equivalent to physical health services. Effective Date: Original effective date January 1, 1997 Notes: Amended effective November 8, 2002; September 1, 2003; July 1, 2006; July 1, 2012; October 1, 2012; April 1, 2016; January 1, 2017; April 1, 2018.
The North Dakota Attorney General’s Office released an opinion(pdf | Get Adobe® Reader®) on whether the Sanford Health Plan and Blue Cross Blue Shield plans in the state provide sufficient coverage for residential treatment programs for substance use disorders under state and federal laws requiring minimum mental health and substance use disorder treatment benefits. The opinion was requested by State Senator Tim Mathern.
The opinion focuses on the Sanford Health Plan which was selected as the “Benchmark Plan” in North Dakota under the Affordable Care Act. This makes the Sanford Health Plan’s benefits the mandatory “benchmark” for other health plans offered in North Dakota. In January 2012, the Sanford Health Plan was amended to exclude residential treatment services for substance use disorder patients age 21 and over. Blue Cross Blue Shield made similar changes.
The opinion states that plans have to follow either N.D.C.C. § 26.1-36-08, which requires that health plans “meet or exceed” the substance use disorder treatment benefits described in the statute, but does not mandate residential treatment services, or N.D.C.C. § 26.1-36-08.1, which allows health plans to provide residential treatment benefits instead of other substance use disorder benefits the plans would have to offer under N.D.C.C. § 26.1-36-08, but does not make residential treatment services an additional requirement. The opinion goes on to state that plans cannot provide required benefits only to some plan members and not others, but they may be allowed to provide benefits to some members and not others for benefits beyond the minimum required coverage.
The opinion also states that under the ACA,Essential Health Benefits (EHBs) cannot be provided in a way that discriminates, including discrimination by age. The opinion states that federal regulation strongly implies that residential treatment services for substance use disorders are EHBs, and therefore could not be offered in a way that discriminates by age. However, the opinion also states that the North Dakota Department of Insurance is awaiting a response from the Department of Health and Human Services on this specific question, and that giving a definitive answer on this would be premature.
The opinion also discusses the Federal Parity Law, and states that there is a strong likelihood that if health plans under the Federal Parity Law provide inpatient medical/surgical benefits, then they will need to cover residential treatment benefits. The Sanford Health Plan and Blue Cross Blue Shield are under the Federal Parity Law.
North Dakota Parity Law
There are two sections of the state insurance law relevant to parity. There is a section about mental health coverage (26.1-36-9), and there is a section about substance use disorder coverage (26.1-36-8).
It is not possible to link directly to these sections. To find them click here(pdf | Get Adobe® Reader®) and scroll to the respective sections.
Plans can choose to provide coverage for residential treatment, but if they do, they must cover at least 60 days. However, if they cover residential treatment they can then reduce their coverage of inpatient care to 45 days, but they must allow patients to exchange up to 23 days of inpatient care for an additional 46 days of residential treatment.
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