Massachusetts Enforcement

Massachusetts – Assurance of Discontinuance Agreements Executed with 5 Health Plans and 2 BHOs (February 2020) along with over $900,000 in fines. 

The Massachusetts Office of Attorney General reached Assurance of Discontinuance (AOD) agreements with five health insurance companies and two companies that manage behavioral health coverage for insurers that will provide more than one million Massachusetts residents with improved access to behavioral health services.  The state regulatory enforcement agreements with the health plans can be found online here.

The five assurances of discontinuance involve: 1) Harvard Pilgrim Health Care and United Behavioral Health d/b/a Optum; 2) Fallon Community Health Plan and Beacon Health Strategies; 3) AllWays Health Partners; 3) Blue Cross Blue Shield of Massachusetts; and 5) Tufts Health Plan.

Here are the highlights of the enforcement action:

• Settlement (aka Assurance of Discontinuance) Agreements.
  • The Commonwealth asserts the health plans and behavioral health organizations (BHOs) covered in the AODs have not complied with the Federal Parity Law and applicable state law provisions.
  • The health plans and BHOs are paying payments into a trust fund in amounts ranging from $60,000 to $275,000.
  • The settlements include robust reporting requirements on several key areas described below.
  • All five AODs follow similar fact patterns and assurance requirements (with some customization for each health insurance arrangement offered by each plan and/or BHO).
  • The three areas of focused investigation covered:
• Provider Access/Provider Directories – Applies to all 5 AODs
• Provider Reimbursement Rates – Applies to 3 of the AODs (includes Fallon/Beacon, Allways/Investigation and Harvard/Optum)
• Utilization Management — Applies to 3 of the AODs (includes Fallon/Beacon, Allways/Investigation, Harvard/Optum).
• Provider Access/Provider Directories. A central focus of the remediation plan is to improve the MH/SUD provider network for each health plan vis-à-vis their respective provider directories.
  • The health plans must address the following provider directory deficiencies:
    • Failure to provide accurate updates on providers availability to see new patients for outpatient services;
    • The posting/publishing of inaccurate provider contact information;
    • Inadequate searching capabilities for consumers to identify provider options who can see patients through their participation in group practices; and
    • Failure to accurately identify which health insurance policies accept specific providers as “in network”.
  • The health plans must improve the accuracy and timelines of the provider directories to include:
    • Identifying when each provider listing was updated electronically and the date of printing of any paper directory;
    • Whether each provider is accepting new patients;
    • Sharing information to allow consumers to file a complaint with the MA DOI if there is an issue;
    • The ability to process most updates within 30 days; and
    • Clearly identifying whether the health plan is using a BHO vendor to maintain the MH provider network.
  • The Settlements identifies how the provider directories should be formatted/published.
  • The health plans/BHOs need to complete quarterly audits of the provider network to ensure ongoing accuracy.
• Provider Reimbursement Rates (not applied to BCBS of MA and Tufts)
  • The health plans and BHOs shall use a methodology and processes for establishing behavioral health care provider reimbursement rates for all levels of provider licensure that is, as written and in operation, comparable to, and applied no more stringently than, the methodology and processes used for establishing medical/surgical provider reimbursement rates and that complies with the Federal Parity Law..
  • When a BHO partner is used, the “allowed amounts” shall be reported annually by the plan for medical/surgical physicians and separately by the BHO for behavioral health care physicians, PhDs, master-level clinicians, and nurse practitioners for each designated CPT code.
• Utilization Management (not applied to BCBS of MA and Tufts)
  • The health plans and BHOs must disclose their respective utilization management policies and procedures, including requirements relating to prior authorization.
  • The UM program shall include:
• Notification that health plan members do not ever need prior authorization to be admitted as an inpatient to a facility from a licensed emergency department to receive behavioral health care;
• Notification that routine behavioral health care services do not require prior authorization; and
• Identification of prior authorization processes and requirements applicable to all behavioral health outpatient services that are not routine behavioral health care services.
  • The health plans and BHOs shall document the processes, evidentiary standards and other factors used to develop and apply utilization management techniques for outpatient behavioral health care and how such processes, evidentiary standards, and other factors were applied comparably with respect to utilization management techniques used for outpatient medical/surgical care.