Behavioral Health Law: A Quick Introduction

By: Erica Erman, Dickinson Wright

Behavioral health law is an incredibly important and growing area of the law. There are numerous special rules and nuances involved, which is one of the reasons most of us likely see behavioral health law as an “exception”, i.e. you can release documents except for the substance use records, etc. Many rules deal with children or vulnerable populations, oftentimes in emergency or high-risk situations, and the consequences are as significant as they get, including suicide and trauma to name only two. It is also an incredibly rewarding area of the law to practice because you have the chance to make a significant difference in so many lives where help is truly needed.

What is behavioral health?

Behavioral health covers a variety of conditions: suicide prevention, developmental disabilities, anxiety disorders, autism spectrum disorder, bipolar disorder, depression, ADHD, eating disorders, OCD, substance use and co-occurring mental disorders, PTSD, and more.

Health care law covers a huge amount of ground. Behavioral health care law encompasses health care law and then adds even more regulations and requirements in large part due to the particularly sensitive nature of behavioral health conditions.

What are some examples of Arizona state entities involved in behavioral health care?

To name a few, there is Arizona’s Medicaid agency, AHCCCS, which includes ALTCS, Arizona’s Long Term Care System, and contracts with RBHAs, Arizona’s Regional Behavioral Health Authorities, to provide services across the state. The Arizona Department of Economic Security (ADES) includes the Division of Developmental Disabilities (the DDD) which handles essential services for autism spectrum disorder. The Department of Economic Security also includes the Arizona Early Intervention Program, which is Arizona’s statewide interagency system of services and supports for families of infants and toddlers, for children from birth to 3 years of age with disabilities or delays, including those at risk for developing autism spectrum disorder. The Arizona professional regulatory boards such as the Board of Behavioral Health Examiners, Medical Board, Board of Osteopathic Examiners, and State Board of Nursing, among others, regulate behavioral health care providers.

What are a few examples of hot topics in behavioral health law?

  1. Parity
    Mental health parity is the idea that mental health and substance use disorder (SUD) benefits and coverage be on par with medical and surgical benefits and coverage. That is what the Federal Parity Act (officially called the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, and also commonly referred to as MHPAEA) is all about.

    The Parity Act prevents group health plans and health insurance issuers from imposing more restrictive limitations on mental health or SUD benefits than on medical or surgical benefits.

    Why was this Act necessary? Historically, mental health and substance use disorders have not been treated on par with traditional medical/surgical issues. There was and still is significant stigma around addiction and behavioral health issues. The Parity Act aims to make sure that those individuals who need behavioral health benefits have them at the same levels they would for a medical or surgical issue. A few important caveats: the Parity Act doesn’t apply to small employers (under 50 employees) and it only applies to plans that do offer mental health or SUD benefits. But here is where other legislation comes into play: Plans must have “essential health benefits,” which includes “behavioral health” (treatment for mental illness, substance use disorders, and developmental disabilities) under the Affordable Care Act. The ACA established mental health care as an essential health benefit. The Parity Act was passed over 11 years ago, but it is a hot topic now because enforcement of the Parity Act over the last few years has started ramping up. Much of the successful litigation to enforce the Parity Act is based in ERISA, the Employee Retirement Income Security Act, and the idea that health insurers, health plans, and plan administrators are fiduciaries under ERISA. As fiduciaries, these entities are required to make sure the provisions of the Parity Act are being followed.

    You may have heard of the landmark case Wit v. United Behavioral Health from March 2019, which identified 8 generally accepted standards of care for behavioral health and later ordered UBH to reprocess more than 60,000 claims that had been initially denied for not meeting UBH’s medical necessity guidelines.[1] This case recently made headlines again in March 2022 when the Ninth Circuit reversed the district court’s order to reprocess the claims in a surprisingly short memorandum decision that left more questions than answers. This case continues to be significant for its 8 generally accepted standards of care for behavioral health—which were not overturned—and as a signal that parity cases may in the future shift gears from focusing on ERISA to focusing on federal and state discrimination laws for evaluating whether the application (or lack thereof) of behavioral health benefits was on par with the application of medical/surgical benefits.

  2. Tele-Behavioral Health: Reimbursement Considerations
    At the time of writing this blog post, the Federal Public Health Emergency (PHE) for COVID-19 is still in effect. An area garnering much interest from behavioral health providers is how tele-behavioral health will function in a post-PHE reality. Here is a short list of 5 relevant federal laws or guidance for behavioral telehealth reimbursement.

    (1) The 2008 Ryan Haight Act – this Act essentially limits prescribing controlled substances over telehealth if a provider has never examined the patient in-person before. There are several important exceptions, including that the Ryan Haight Act does not apply during a public health emergency. This Act will reemerge at the conclusion of the PHE unless there is new legislation to change it.

    (2) The SUPPORT Act – enacted in October 2018, this Act carved out an exception for reimbursement such that a patient being treated for SUD and co-occurring mental conditions does not need to live in a rural area or have an appointment at a health care facility for the provider to be reimbursed.

    (3) Consolidated Appropriations Act of 2021 (enacted in 2020) – this legislation created a permanent exception for reimbursement of mental health services, making it possible for providers to be reimbursed regardless of where their patient is located. However, the legislature put in an additional requirement that for those mental health services to be reimbursed, the patient must have an in-person visit within 6 months before the provision of telehealth. There are some narrow exceptions.

    (4) 2022 Medicare Physician Fee Schedule – CMS added onto the 6 month rule from the CAA of 2021 (above) a new requirement that after the telehealth visit, to be eligible for reimbursement, the patient needs to visit the provider in-person again within 12 months. Again, there are several exceptions. Additionally, CMS expanded the modality of services that can be provided: reimbursement is now possible for mental health services delivered via audio-only telecommunications technology.

    (5) Consolidated Appropriations Act of 2022 – this Act, which became law recently on March 15, 2022, does not add any permanent changes to the SUD and mental health provisions discussed above, but it does add a roughly 5 month extension to the temporary telehealth provisions currently in place after the PHE ends.

  3. Interstate Compacts
    Arizona enacted PSYPACT – the Psychology Interjurisdictional Compact that facilitates the practice of telepsychology and temporary in person, face-to-face practice of psychology across state boundaries – several years ago. Arizona providers have greater access to telepractice now that 30 states have enacted PSYPACT with more on the way.

    One Compact you may not have heard of yet that could be very helpful for the behavioral health field in the future is the Interstate Compact for Counselor Licensure. This Compact is not yet operational, as it needs at least 10 states to enact it first, but it is close with 9 already signed on. This Compact is for Licensed Professional Counselors (LPCs) only. It specifically does not include licensed marriage and family therapists or licensed clinical social workers. Arizona currently does not have legislation pending for this Compact, but we may see legislation in the future.

Conclusion

There are many facets to behavioral health law and the above barely scratches the surface. Thanks for reading and don’t forget that after July 16, 2022, anyone can dial 9-8-8 and be connected to the National Crisis Hotline/Suicide Prevention Hotline. You can reach me at 602-889-5342 or EErman@dickinson-wright.com.

[1] You can read more about this decision here: https://www.dickinson-wright.com/news-alerts/highlights-from-wit-united-behavioral-health-case