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ACT OF THE GENERAL ASSEMBLY 2007-2008

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NO. 142.  AN ACT RELATING TO ENHANCING REGULATION FOR PROGRESS TOWARD MENTAL HEALTH PARITY.

(S.114)

Sec. 1.  8 V.S.A. § 4089b is amended to read:

(a)  It is the goal of the general assembly that treatment for mental health conditions be recognized as an integral component of health care, that health insurance plans cover all necessary and appropriate medical services without imposing practices that create barriers to receiving appropriate care, and that integration of health care be recognized as the standard for care in this state.

(a)(b) As used in this section:

(1) "Health insurance plan" means any health insurance policy or health benefit plan offered by a health insurer, as defined in 18 V.S.A. § 9402(7). Health insurance plan includes any health benefit plan offered or administered by the state, or any subdivision or instrumentality of the state.

(2) "Mental health condition" means any condition or disorder involving mental illness or alcohol or substance abuse that falls under any of the diagnostic categories listed in the mental disorders section of the international classification of disease, as periodically revised.

(3) "Rate, term or condition" means any lifetime or annual payment limits, deductibles, copayments, coinsurance and any other cost-sharing requirements, out-of-pocket limits, visit limits, and any other financial component of health insurance coverage that affects the insured.

(b)(c)  A health insurance plan shall provide coverage for treatment of a mental health condition and shall:

(1)  not establish any rate, term, or condition that places a greater financial burden on an insured for access to treatment for a mental health condition than for access to treatment for a physical other health conditions;

(2) not exclude from its network or list of authorized providers any licensed mental health or substance abuse provider located within the geographic coverage area of the health benefit plan if the provider is willing to meet the terms and conditions for participation established by the health insurer; and

(3) make any deductible or out-of-pocket limits required under a health insurance plan comprehensive for coverage of both mental health and physical health conditions.

 (c)(d)(1)(A) A health insurance plan that does not otherwise provide for management of care under the plan, or that does not provide for the same degree of management of care for all health conditions, may provide coverage for treatment of mental health conditions through a managed care organization provided that the managed care organization is in compliance with the rules adopted by the commissioner that assure that the system for delivery of treatment for mental health conditions does not diminish or negate the purpose of this section.  In reviewing rates and forms pursuant to section 4062 of this title, the commissioner shall consider the compliance of the policy with the provisions of this section.

(B)  The rules adopted by the commissioner shall assure that:

(i)  timely and appropriate access to care is available; that

(ii)  the quantity, location and specialty distribution of health care providers is adequate; and that

(iii)  administrative or clinical protocols do not serve to reduce access to medically necessary treatment for any insured;

(iv)  utilization review and other administrative and clinical protocols do not deter timely and appropriate care, including emergency hospital admissions;

(v)  in the case of a managed care organization which contracts with a health insurer to administer the insurer’s mental health benefits, the portion of a health insurer’s premium rate attributable to the coverage of mental health benefits is reviewed under sections 4062, 4513, 4584, or 5104 of this title to determine whether it is excessive, inadequate, unfairly discriminatory, unjust, unfair, inequitable, misleading or contrary to the laws of this state;

(vi)  the health insurance plan is consistent with the Blueprint for Health with respect to mental health conditions, as determined by the commissioner under section 9414(b)(2) of Title 18;

(vii)  a quality improvement project is completed annually as a joint project between the health insurance plan and its mental health managed care organization to implement policies and incentives to increase collaboration among providers that will facilitate clinical integration of services for medical and mental health conditions, including:

(I)  evidence of how data collected from the quality improvement project are being used to inform the practices, policies, and future direction of care management programs for mental health conditions; and

(II)  demonstration of how the quality improvement project is supporting the incorporation of best practices and evidence-based guidelines into the utilization review of mental health conditions;

(viii)  an up-to-date list of active mental health care providers in the plan’s network who are available to the general membership is available on the health insurer’s and managed care organization’s websites and provided to consumers upon request; and

(ix)  the health insurers and managed care organizations make accessible to consumers the toll-free telephone number for the Vermont health care administration’s consumer protection help line.

(C)  Prior to the adoption of rules pursuant to this subdivision, the commissioner shall consult with the commissioner of mental health and the task force established pursuant to subsection (h) of this section concerning:

(i)  developing incentives and other measures addressing the availability of providers of care and treatment for mental health conditions, especially in medically underserved areas;

(ii)  incorporating nationally recognized best practices and evidence-based guidelines into the utilization review of mental health conditions; and

(iii)  establishing benefit design, infrastructure support, and payment methodology standards for evaluating the health insurance plan’s consistency with the Blueprint for Health with respect to the care and treatment of mental health conditions.

(2)  A managed care organization providing or administering coverage for treatment of mental health conditions on behalf of a health insurance plan shall comply with this section, sections 4089a and 4724 of this title, and section 9414 of Title 18, with rules adopted pursuant to those provisions of law, and with all other obligations, under Title 18 and under this title, of the health insurance plan and the health insurer on behalf of which the review agent is providing or administering coverage.  A violation of any provision of this section shall constitute an unfair act or practice in the business of insurance in violation of section 4723 of this title.

(3)  A health insurer that contracts with a managed care organization to provide or administer coverage for treatment of mental health conditions is fully responsible for the acts and omissions of the managed care organization, including any violations of this section or a rule adopted pursuant to this section.

(4)  In addition to any other remedy or sanction provided for by law, if the commissioner, after notice and an opportunity to be heard, finds that a health insurance plan or managed care organization has violated this section or any rule adopted pursuant to this section, the commissioner may:

(A)  Assess a penalty on the health insurer or managed care organization under section 4726 of this title;

(B)  Order the health insurer or managed care organization to cease and desist in further violations;

(C)  Order the health insurer or managed care organization to remediate the violation, including issuing an order to the health insurer to terminate its contract with the managed care organization; and

(D)  Revoke or suspend the license of a health insurer or managed care organization, or permit continued licensure subject to such conditions as the commissioner deems necessary to carry out the purposes of this section.

(5)  As used in this subsection, the term “managed care organization” includes any of the following entities that provide or administer the coverage of mental health benefits on behalf of a health insurance plan:

(A)  a review agent as defined in section 4089a of this title;

(B)  a health insurer or an affiliate of a health insurer as defined in section 9402 of Title 18;

(C)  a managed care organization or an affiliate of a managed care organization as defined in section 9402 of Title 18; and

(D)  a person or entity that should be licensed as a managed care organization.

(d)(e)  Notwithstanding the provisions of subdivision (c)(1) of this section, a A health insurance plan shall be construed to be in compliance with this section if at least one choice for treatment of mental health conditions provided to the insured within the plan has rates, terms and conditions that place no greater financial burden on the insured than for access to treatment of physical other health conditions. The commissioner may disapprove any plan that the commissioner determines to be inconsistent with the purposes of this section.

(e)(f) To be eligible for coverage under this section the service shall be rendered:

(1) For treatment of mental illness:

(A) by a licensed or certified mental health professional; or

(B) in a mental health facility qualified pursuant to rules adopted by the secretary of human services or in an institution, approved by the secretary of human services, that provides a program for the treatment of a mental health condition pursuant to a written plan. A nonprofit hospital or a medical service corporation may require a mental health facility or licensed or certified mental health professional to enter into a contract as a condition of providing benefits.

(2) For treatment of alcohol or substance abuse:

(A) by a substance abuse counselor or other person approved by the secretary of human services based on rules adopted by the secretary that establish standards and criteria for determining eligibility under this subdivision; or

(B) in an institution, approved by the secretary of human services, that provides a program for the treatment of alcohol or substance dependency pursuant to a written plan.

(f)(g)  On or before July 15 of each year, health insurance companies doing business in Vermont, and whose individual share of the commercially-insured Vermont market, as measured by covered lives, comprises at least five percent of the commercially-insured Vermont market, shall file with the commissioner, in accordance with standards, procedures, and forms approved by the commissioner:

(1) A report card on the health insurance plan's performance in relation to quality measures for the care, treatment, and treatment options of mental health and substance abuse conditions covered under the plan, pursuant to standards and procedures adopted by the commissioner by rule, and without duplicating any reporting required of such companies pursuant to Rule 10 of the division of health care administration, "Quality Assurance Standards and Consumer Protections for Managed Care Plans," and regulation 95-2, "Mental Health Review Agents," of the division of insurance, as amended, including:

(A) the discharge rates from inpatient mental health and substance abuse care and treatment of insureds;

(B) the average length of stay and number of treatment sessions for insureds receiving inpatient and outpatient mental health and substance abuse care and treatment;

(C) the percentage of insureds receiving inpatient and outpatient mental health and substance abuse care and treatment;

(D) the number of insureds denied mental health and substance abuse care and treatment;

(E) the number of denials appealed by patients reported separately from the number of denials appealed by providers;

(F) the rates of readmission to inpatient mental health and substance abuse care and treatment for insureds with a mental health condition;

(G) the level of patient satisfaction with the quality of the mental health and substance abuse care and treatment provided to insureds under the health insurance plan; and

(H) any other quality measure established by the commissioner.

(2) [Repealed.]  The health insurance plan’s revenue loss and expense ratio relating to the care and treatment of mental health conditions covered under the health insurance plan.  The expense ratio report shall list amounts paid in claims for services and administrative costs separately.

 (g)(h)  The commissioner shall establish a task force to develop performance quality measures, and address oversight issues for managed behavioral health care organizations, and review the results of any quality improvement projects not otherwise confidential or privileged, undertaken by managed care organizations for mental health and substance abuse care and treatment under subdivision (d)(1)(A)(vii) of this section and section 9414(i) of Title 18.  The task force shall report to the senate committees on health and welfare of the senate and the house of representatives committees on health care and on human services on or before January 15 of each year with a report on the activities and recommendations of the task force.  The task force shall include the following:

(1)  the commissioner of developmental and mental health services or a designee;

(2)  the director of the office of Vermont health access or a designee;

(3)  the commissioner of banking, insurance, securities, and health care administration or a designee;

(4)  the deputy commissioner of the department of health for alcohol and drug abuse programs or a designee;

(4)(5)  fourteen additional members appointed by the commissioner of banking, insurance, securities, and health care administration, including:

(A)  four representatives of the health insurance and behavioral managed care organization industry;

(B)  two consumers, after consultation with the health care ombudsman;

(C)  one psychologist, after consultation with the Vermont psychological association;

(D)  one psychiatrist, after consultation with the Vermont psychiatric association;

(E)  one social worker, after consultation with the National Association of Social Workers, Vermont Chapter;

(F)  one mental health counselor, after consultation with the Vermont mental health counselors association;

(G)  one drug and alcohol counselor, after consultation with the Vermont association of drug and alcohol counselors;

(H)  one representative from a consumer or citizen's organization;

(I)  one representative from the business community; and

(J)  one representative of community mental health centers.

Sec. 2.  18 V.S.A. § 9414(g) is amended to read:

(g)(1)  If In addition to any other remedy or sanction provided by law, after notice and an opportunity to be heard, if the commissioner determines that a managed care organization has violated or failed to comply with any of the provisions of this section or any rule adopted pursuant to this section, the commissioner may:

(A)  sanction the violation or failure to comply as provided in Title 8, including sanctions provided by or incorporated in sections 5108 and 5109 of Title 8 and section 4726 of Title 8, and may use any information obtained during the course of any legal or regulatory action against a managed care organization;

(B)  order the managed care organization to cease and desist in further violations; and

(C)  order the managed care organization to remediate the violation, including issuing an order to the managed care organization to terminate its contract with any person or entity which administers claims or the coverage of benefits on behalf of the managed care organization.

(2)  A managed care organization that contracts with a person or entity to administer claims or provide coverage of health benefits is fully responsible for the acts and omissions of such person or entity.  Such person or entity shall comply with all obligations, under this title and Title 8, of the health insurance plan and the health insurer on behalf of which the such person or entity is providing or administering coverage.

(3)  A violation of any provision of this section or a rule adopted pursuant to this section shall constitute an unfair act or practice in the business of insurance in a violation of section 4723 of Title 8.

Sec. 3.  18 V.S.A. § 9414(i) is added to read:

(i)  Upon review of the managed care organization’s clinical data, or after consideration of claims or other data, the commissioner may:

(1)  identify quality issues in need of improvement; and

(2)  direct the managed care organization to propose quality improvement initiatives to remediate those issues.

Sec. 4.  EFFECTIVE DATE; LEGISLATIVE INTENT; APPLICABILITY

(a)  This act shall take effect upon passage.

(b)  The provisions of 8 V.S.A. § 4089b(d)(2) and (3), and 18 V.S.A. § 9414(g)(2) and (3) are intended to clarify existing law.  The remedies


provided for in 8 V.S.A. § 4089b(d)(4), and 18 V.S.A. § 9414(g)(1) shall apply to legal or regulatory violations that occur before and after passage of this act.

Approved:  May 14, 2008



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us