Sara Jasper, JD
Staff Attorney
The Therapist
September/October 2014

CAMFT frequently receives members' requests to work with managed care plans on their behalf. Due to federal and state antitrust laws, CAMFT is prohibited from taking certain actions when communicating with these plans (i.e., collective bargaining, threatening group boycotting).1 Historically, CAMFT's position has been that antitrust laws are much bigger than CAMFT, and combating them would be an expensive battle with very small chance of success. For further reading on why CAMFT does not work to change antitrust laws, see "Why Does CAMFT Not Eradicate Managed Care?" by Mary Riemersma, Former Executive Director, The Therapist (March/April 2005). Over the years, CAMFT has reached out to managed care plans to hopefully resolve members' concerns regarding issues such as problems with submitting claims, untimely payment for services, denial of claims based on unlawful or unjust reasons, etc.
Today, CAMFT is attempting to be more proactive in this regard in response to members' concerns by taking steps to further advocate for our members on the managed care front. We are seeking to push the envelope and find creative ways to address members' managed care concerns without violating antitrust laws. This article discusses actions CAMFT has taken-and will continue to take-to address members' managed care concerns.

CAMFT's Involvement with CPPA Every quarter, a CAMFT Staff Attorney participates in meetings of the Consumer Provider Plan Agency (CPPA) Mental Health Work Group which is hosted by the Department of Managed Health Care (DMHC). The DMHC oversees most health care service plans (including Kaiser Permanente), health maintenance organizations ("HMOs") incorporated in California, as well as California Blue Cross and Blue Shield participating provider organizations ("PPOs").

The purpose of the CPPA meetings is to bring mental health consumer and provider advocates together with representatives of the managed care plans that are regulated by the DMHC to discuss issues related to the delivery of mental health care in California. For the past year, the work group has focused on addressing provider-reported barriers to outpatient behavioral care services. Representatives of the plans have presented the best aspects of their companies' provider websites as well as information about provider workshops that are regularly offered by the plans. The group is putting together best practice recommendations for the plans to implement that will give providers easier access to patient and plan information.

The CPPA Work Group is also finalizing provider "tip sheets" for network and nonnetwork providers that will include specific tips from each of the major plans regulated by the Department of Managed Health Care. In order to ensure that all of the appropriate representatives are present at future meetings, the DMHC has extended a formal invitation to join the group to both the Department of Health Care Services and the Department of Insurance. The DMHC has also committed to asking a representative of its Legal Department to attend future meetings. The next agenda item for this group is to discuss the scope of the group's work as well as developing a mission statement for the group, given its expansion.

If members have insurance questions or would like to offer suggestions about topics or issues to be raised at the meetings, please contact CAMFT's Legal Department at (858) 292-2638.

CAMFT Request for Grievances Filed With the DMHC
In order to adequately address our members' concerns regarding unfair business practices of a health plan or insurer (not including issues related to reimbursement rates), CAMFT has historically asked members to send a copy of grievances filed with the DMHC or the Department of Insurance. Some of the concerns that may be addressed include, but are not limited to, issues with submitting claims; issues with contacting provider relations or other departments of a health plan; untimely payment for claims; and unjust or unlawful denials of claims. CAMFT collects this information so we can initiate discussions with health plans to hopefully resolve member issues or concerns with plans.

U.S. Department of Justice Antitrust Division Business Review Request
In April, 2013, CAMFT contacted the U.S. Department of Justice (DOJ), Antitrust Division, to request a formal "business review" opinion. Specifically, CAMFT asked the DOJ to provide an opinion on whether CAMFT may share information with health plans regarding reimbursement rates to advocate for our members and to educate health plans about members' and patients' needs. CAMFT proposed that as a part of the advocacy and educational efforts, CAMFT would like to compile individual members' concerns regarding health plans' reimbursement rates, and share the data with the respective plan. Unfortunately, the DOJ recently informed CAMFT it will not provide a review of our request due to the following reasons: 1) the government currently has extreme resource constraints; and 2) member letters that CAMFT intends to send may largely vary and there may be correspondence or words that imply joint boycotts, or collective negotiations, which would be prohibited. CAMFT was disappointed by this response and will continue to identify ways we can get direction from the DOJ on this important issue.

Consultations with Antitrust Experts
CAMFT has consulted with experts in antitrust laws to ensure we are well-informed of how these laws affect CAMFT as a trade professional association, as well as how antitrust laws affect our members in their everyday practices. In 2012, CAMFT invited Mr. Rob Portman, an attorney who counsels professional societies, health care associations, voluntary health organizations and certification bodies on various areas of the laws, including antitrust laws, to provide CAMFT staff with a presentation on antitrust issues relevant to associations. For further reading on how antitrust laws may affect a therapist's practice, see "Avoiding Antitrust Problems in Practice," by Ann Tran-Lien, JD, Staff Attorney, The Therapist (September/October 2012).

In addition, in 2013, CAMFT hosted a webcast "Federal Antitrust Enforcement" presented by a prosecutor from the U.S. Department of Justice, Antitrust Division. The webcast covers key elements of "an agreement" and how to "avoid cliffs." The webcast is free and available to view by accessing the Resource Center on the CAMFT website.

Monitoring Other Professional Associations' Activities
Some state medical associations have followed the suggestion by the American Medical Association (AMA) to pursue legislation essentially establishing a voluntary system that individual providers could use when private negotiations with health plans fail to yield desired contract terms. This is accomplished through what is known as the "state action exemption" doctrine, a limited exemption from federal antitrust provisions supervised by the state Attorney General.

The problem with the model legislation provided by the AMA is that, in order to get it through the legislature, the intent has been modified allowing health care plans to opt-out of the negotiations with providers. For example, the Texas Medical Association (TMA) passed SB 1468 in 1999, which allowed group negotiations to fall outside of the antitrust law. Unfortunately, only one practice group attempted to invoke this law, and after spending $20,000 to involve the Attorney General as legally required, the health care plan chose not to negotiate. This legislation has subsequently expired and not surprisingly, the TMA decided not to reenact the law. In 2000, the California Medical Association attempted similar legislation (AB 2007) which, unfortunately, was quickly gutted and amended into another bill due to extreme opposition by the health care plan lobby. The Medical Society of New Jersey, attempted to accomplish this outside of legislation, through advocacy, but to date the health care plan lobby refuses to even discuss this proposal. Sadly, this model legislation appears more symbolic than practical given the plans' ability to decline negotiations.

In 2009, the California Psychological Association filed suit against Blue Cross for using a flawed database to suppress customary rates for out-of-network services. This case does not actually cover the negotiated rates that many members wish were higher, but instead the percentage given out-of-network. This case was just recently sent back by the 11th Circuit Court to proceed, so we will likely know more about the results in the next couple of years. Since the filing of the suit, most insurers have moved to a fee based on a percentage of Medicare payment (a much more reliable system) so there is little opportunity for similar cases on this issue for provider groups or associations. Attorney Generals would not be concerned about punishing for practices that have been largely resolved by removing the database in question.

Conclusion
CAMFT is aware of our members' concerns related to managed care plans and encourages the membership to continue to provide us with information and input regarding this important topic. Although CAMFT cannot directly address reimbursement rate issues with health plans, we are committed to finding creative ways to work with managed care plans and the governmental bodies that regulate them.

Sara Jasper, JD is a staff attorney for CAMFT. Sara is available to answer member calls regarding legal, ethical, and licensure issues.

Endnotes
1 For further reading on antitrust laws, see "Avoiding Antitrust Problems in Practice," by Ann Tran-Lien, JD, Staff Attorney, The Therapist (September/October 2012); see also "Why Does CAMFT Not Eradicate Managed Care?," by Mary Riemersma, Former Executive Director, The Therapist (March/April 2005)