Action in the Regulatory Arena
|Primary Focus||Access to Services|
|Agency||Department of Human Services|
|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 Insurance Department released a market conduct examination consent order (pdf | Get Adobe® Reader®) Blue Cross and Blue Shield of North Dakota (BCBS). Among other findings, the Department determined that BCBS had improperly denied or failed to pay 63 out of 167 sampled claims involving prior authorization for behavioral health services (beginning at the bottom of page 10). The Department stated that BCBS’ practices did not comply with “…utilization review guidelines, medical necessity guidelines, and/or its contracts, and North Dakota law.” BCBS accepted these particular findings and agreed to correct its procedures.
As part of the original market conduct examination (pdf | Get Adobe® Reader®), the Department also investigated BCBS for potential violations regarding its expedited appeals process and its grievance appeals process for behavioral health services (beginning at the bottom of page 8). The Department found that BCBS may have been in violation of its policies and state law, but it was not clear that these were in fact violations and therefore did not take action against BCBS on these matters.
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.