Welcome to the Ledger

Welcome to the third edition of Greenberg Traurig’s Behavioral Health Law Ledger! The Ledger is for behavioral health and integrated health providers interested in staying abreast of behavioral health law legal and regulatory developments. Each quarter, we anticipate releasing a new edition of the Ledger to highlight new legal developments, including but not limited to audit risks, important litigation developments, enforcement actions, and changes to behavioral-health-related laws or regulations such as health privacy, confidentiality, and/or security issues, consent issues, data sharing allowances, and other cutting-edge arrangements and issues facing behavioral and integrated healthcare providers.

New York Expands Funding for Mobile SUD Treatment Services

On Feb. 25, 2022, New York Gov. Kathy Hochul announced that the state would make available up to $1,000,000 for Opioid Treatment Program (OTP) providers to establish mobile medication units (MMUs) to provide medications such as methadone and buprenorphine, to treat substance use disorders (SUD). The MMUs will offer services including admission assessments, medication induction, medication administration and observation, toxicology tests, and other SUD-related medical services. Notably, the National Institutes of Health (amongst others) has been funding a clinical research trial in five major U.S. cities since June 2021 to evaluate the effectiveness of MMU use in treating patients who inject opioids.

The goals of the MMUs are to remove transportation and geographic-proximity barriers to SUD treatment faced by many SUD patients, and to increase the availability of medications for patients suffering from an opioid use disorder. The MMUs will supplement existing mobile service offerings from providers certified by the New York State Office of Addiction Services and Supports (OASAS). Ultimately, the MMU initiative seeks to make one-time awards of up to $200,000 to an OTP provider in each of the five boroughs of New York City; however, OASAS may award more than one MMU per borough depending on the applicants.
MMU development is made possible by the Drug Enforcement Authority (DEA)’s release of the Final Rule on MMUs and is in response to the state’s need for increasing OTP services availability. Previously, mobile clinics had to be registered separately, which kept some clinicians from providing such services. The federal funding is being provided to the state of New York through the federal State Opioid Response grant, and is being awarded through a Request for Applications administered by OASAS and its fiscal agent, the Research Foundation for Mental Hygiene. New York OTP providers can click here to access OASAS’s Request for Applications. The application deadline is currently set for March 25, 2022.

States that lack accessible OTPs throughout the state would be well-served to consider using State Opioid Response funding for MMUs, similar to New York state, to work to combat the opioid crisis and provide more patients with access to SUD treatment services. Medicaid can help support the treatment provided in MMUs, as many of the people served by MMUs may be Medicaid enrollees, and states can bill for services provided.

Tri-Agency Report on Mental Health Parity Compliance and Enforcement

On Jan. 25, 2022, the U.S. Departments of Labor, Health and Human Services, and Treasury released their 2022 annual report to Congress on the Mental Health Parity and Addiction Equity Act (MHPAEA), “Realizing Parity, Reducing Stigma, and Raising Awareness: Increasing Access to Mental Health and Substance Use Disorder Coverage” (the Report). The Report is an assessment of current issues in compliance and enforcement under the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, the federal law that requires equity in medical/surgical and mental health/substance use disorder benefits.

The goal of MHPAEA is to promote access to mental health and substance use disorder treatment by prohibiting coverage limitations that may deny or significantly limit covered benefits. MHPAEA requires that the financial requirements (such as copayments) and treatment limitations (such as prior authorization requirements and other medical management tools) that apply to mental health and substance use disorder benefits cannot be more restrictive than the predominant financial requirements and treatment limitations that apply to substantially all medical and surgical benefits. The Department of Labor’s Employee Benefits Security Administration (EBSA) and the Centers for Medicare and Medicaid Services (CMS) have primary enforcement authority for MHPAEA, with enforcement jurisdiction divided by plan or issuer type.

To better facilitate enforcement, in the Consolidated Appropriations Act of 2021 (CAA), Congress amended MHPAEA to require plans and issuers to complete comparative analyses of their non-quantitative treatment limitations. The Report indicates that many plans and issuers were unprepared to perform and document the required comparative analyses, and that most analyses reviewed contained insufficient information.

According to the Report, health plans and health insurance issuers are also failing to meet parity coverage requirements, a potentially concerning trend given the rise in mental health and substance use disorder issues related to the ongoing COVID-19 pandemic. Examples of non-compliance cited in the Report include multiple plans that excluded applied behavior analysis to treat autism spectrum disorder, a large health plan that excluded methadone and naltrexone for treatment for substance use disorder conditions, and two large plans that covered nutritional counseling for medical/surgical conditions like diabetes but did not cover comparable counseling for mental health conditions including eating disorders.

In response to the Report’s findings, EBSA and CMS intend to increase MHPAEA enforcement by continuing to request and review disclosure requirements, investigate plans and issuers, issue corrective action plans, recruit and train additional staff, and provide technical assistance as needed.