An American Psychiatric Association (APA) lawsuit targeting Anthem/WellPoint’s manipulation of the new CPT codes for psychotherapy is proceeding, despite the April 24 press release by the Connecticut Insurance Department that it had struck a deal with the Wallingford-based insurance company. The insurance department struck the deal with Anthem without including the APA, the Connecticut Psychiatric Society, and Connecticut Medical Society, giving the impression that there was a “back door attempt to achieve some positive press in a time when Anthem and WellPoint companies are being accused in litigation of discriminating against psychiatric patients and impeding their access to care,” said James Scully, M.D., medical director and CEO of the APA.
In the deal, the state’s insurance company said Anthem had agreed to adjust its fee schedule for mental health providers to recognize changes in Current Procedural Terminology (CPT). The readjustment, which will be retroactive to January 1, 2013, is reported to cover 28,000 claims and $400,000 in payments owed. The lawsuit is remarkable in its attention to CPT codes, charging that Anthem’s implementation of the changes violates the Mental Health Parity and Addiction Equity Act (MHPAEA) and state parity, contract, and consumer protection laws.
Last month, the APA broadened its attack, sending letters to Anthem Blue Cross and Blue Shield Companies in Virginia and Ohio, and to Empire Blue Cross and Blue Shield in New York, asking the companies to stop discriminating against mental health patients. All owned by WellPoint, like the Anthem insurer in Connecticut, these BC/BS companies are charged with violating the MHPAEA. “WellPoint and its subsidiaries should review and fix the problems we allege many in its family of companies are creating for mental health patients. In our view, mental health patients and physicians should not have to devote their time, financial resources, and effort to make the WellPoint family of companies do what the law requires them to do,” said Dr. Scully.
Dr. Scully stressed that the insurance department deal does not address the parity law violations which lie at the heart of the APA’s lawsuit. “I have asked David Fusco, Anthem’s CEO, to provide answers to outstanding questions that appear not to have been addressed in this agreement with the Insurance Commission which we understand was reached without consideration of the federal law – MHPAEA.”
There are additional APA lawsuits in preparation against other Anthem companies on similar or identical grounds. Key questions are: If patients are using out-of-network services, will these be paid correctly or not? Will deductible payments that patients have made because of Anthem’s mistakes be returned? And most significantly, are the ways that a health plan sets rates for mental health care any more stringent than the way it sets rates for medical/surgical care? The MHPAEA requirement is that rates and coverages be “no more stringent.”
When the lawsuit was filed April 11, APA President, Dilip Jeste, M.D. noted that the “APA worked hard to ensure passage of MHPAEA so that mental health patients would not be deprived of treatment or stigmatized for seeking it.” Insurance companies need to abide by the law “and not directly or indirectly inhibit access to the treatment for which the patients and their employers have paid,” he said.
What Anthem/WellPoint did in this case was to confound the use of the new codes by saying that the new E/M codes and psychotherapy add-on codes — codes designed to go with the E/M codes — could not be billed on the same day. However, the CPT manual says nothing of the sort. “The insurance company is saying they will pay for the 10 minute E/M one day, and the 45-minute psychotherapy on a different day,” said Colleen Coyle, general counsel for the APA, in an interview with Behavioral Healthcare magazine this month. “That means the patient has to pay a double co-pay, and it’s not convenient,” she said.
The new codes “are not that complicated,” said Coyle. The APA conducted training for its members starting when the CPT book came out last October (the codes took effect in January). Ninety-nine percent of the problems were due the insurance company saying it didn’t recognize the new coding structure, said Coyle. “If we can train 33,000 psychiatrists, as individuals, between October and December, certainly a company the size of WellPoint or United or Blue Cross/Blue Shield could change their software,” she said. “It was a patch, and they control their own people. This is just a good excuse for them not to pay – for a long time.”
Suing an insurance company in Connecticut is no easy task. It’s the home of insurance companies, who tend to hire all the law firms they can, spreading the work around so few firms are available to sue them, said Coyle. Maria Pepe VanDerLaan, the attorney representing the APA in the case against Anthem, is a partner at the Hartford-based Murtha law firm.
Through the Connecticut lawsuit and others, the APA hopes to raise issues so a federal court interprets the regulations, said Coyle. “We need some precedent out there,” she said. “We need some clarity.”
Meanwhile, the federal government says that even though there is still no final rule implementing the MHPAEA, the interim final regulations are the law of the land – and will be until the final rule is issued sometime before the end of the year.