New York Psychiatrists Work to Hold Insurance Carrier Accountable

Psychiatrist Hal Rubin, M.D., knows how to talk to an insurance company, and he knows how to say “no.”

Rubin, an adult and geriatric psychiatrist, is in practice with his wife, Lorna Clark-Rubin, M.D., an adult and child and adolescent psychiatrist, in the rural, upstate New York town of Plattsburgh. Through remarkable diligence, he has scored impressive victories in negotiations with a statewide subcontractor that manages the mental health and substance abuse benefits for a large employer.

They came to Plattsburgh with their children in 1990, drawn to the mountains, lakes, and streams where they could pursue their love of nature and practice psychiatry in a region that was short on mental health clinicians.

“For the first 11 years we were variably 40 percent to 60 percent of the local regional hospital psychiatric staff, as well as conducting a very busy outpatient practice,” Rubin told Psychiatric News. In 2001, they shifted to an entirely outpatient practice.

“Our practice is a business partnership, and we see patients from early childhood through the closing years of life,” he said. “Practicing in a small community, we see students, tradesmen and women, blue-collar workers, business professionals, CEOs, professors, doctors, teachers, unemployed and disabled individuals, and many others. Many patients with longstanding relapsing conditions have been under our care for 15 to 20 years and have maintained their highly functional abilities in family and work with our assistance.

“Around the same time as we transitioned to all outpatient work, it struck me that the insurance companies needed us more than we needed them, since this is a psychiatrist-scarce region, and we have always received from many sources more referrals than we can possibly see. I began to read the proposed contracts and relevant state insurance laws carefully. It is not difficult to find these laws. You don’t need an attorney at this level.”

New Yorkers have been fortunate in having an activist attorney general in Eric Schneiderman, who in July announced a settlement with New York City–based EmblemHealth Inc., requiring the insurer to reform its behavioral health claims–review process, cover residential treatment, and revise its copayment policies for outpatient visits to mental health and substance abuse treatment providers. The settlement also requires the company—which has 3.4 million members, 1.2 million of whom are New York City employees and retirees—to submit previously denied mental health and substance abuse treatment claims for independent review. That review could result in more than $31 million being returned to members wrongfully denied benefits, according to a statement from the attorney general’s office (Psychiatric News, August 1).

But Rachel Fernbach, J.D., deputy director and assistant general counsel of New York State Psychiatric Association (NYSPA), told Psychiatric News earlier this year that in addition to pursuing violations of parity by New York insurers, NYSPA has been looking into ways that companies may be manipulating reimbursement rates to deny psychiatrists adequate payment for psychotherapy.

She noted that effective January 1, 2013, the old 908xx psychotherapy codes were eliminated from the Current Procedural Terminology (CPT) manual and replaced with new combination codes, consisting of an evaluation and management (E&M) code plus a new psychotherapy add-on code. The change allows psychiatrists to bill for their services as other physicians can, with the added result of being reimbursed for their services at a rate comparable to all other physicians. (The old 908xx psychotherapy codes were traditionally reimbursed at a lower rate than the comparable E&M codes.)

But Fernbach said that instead of using the enhanced RVU values to establish reimbursement rates for the new combination codes, some managed care plans have simply manipulated the fees for the add-on codes so that the new total fee is no more than the comparable 2012 fee, thereby discouraging psychiatrists from providing this service.

It was against this practice by the statewide subcontractor—and other alleged violations of the Mental Health Parity and Addiction Equity Act (MHPAEA)—that Rubin and his wife waged a protracted fight.

In the last days of 2013, Rubin—who is diligent about reading contracts he signs—received a memo from the company indicating that it was assuming the mental health subcontractor position for a large employer. Other memos and the subcontractor’s provider website stated that outpatient treatment reports would continue to be required after 10 visits and that clinicians should expect retrospective reviews of visits when an E&M code and a psychotherapy add-on code were billed together.

In addition, he said the provider reimbursement schedules did not arrive with any memos and were nowhere to be found on the company’s secure provider website. This was unlike most other insurance companies with which he and his wife participated, he said.

“After numerous phone calls and emails, we did receive a copy of the fee schedule, and the rates were abysmal,” he said. “In fact, I found a fee schedule for our practice from 1998, and the rates were almost identical.”

Rubin said he believes the absence of many CPT codes now legitimately billable by psychiatrists, the continuation of treatment plans and other restrictive requirements, and rates that appeared to be determined by financial factors rather than methodology comparable to other physicians were bound to result in a reduction in the number of providers in local networks.

“Psychiatrists would not be willing to accept rates that were 30 percent to 60 percent below market for other physicians and would either not join the plan or withdraw,” he said. “This would ultimately lead to reduced patient access to care, reduced follow-up, greater suffering—precisely what MHPAEA was designed to correct.”

Rubin and Clark-Rubin began an untiring campaign to force the company to amend its policies as they pertain to his and his wife’s participation. Cut to the finale—as a result of Rubin’s diligence, he succeeded in negotiating for his practice that standard E&M codes absent from the initial fee schedule are now included, prior authorization for outpatient psychiatric visits is no longer required, and reimbursement rates including the additional E&M codes have been adjusted to reflect the complexity of the work.

So what is Rubin’s advice to other clinicians confronted with similar insurance company practices? “They have more leverage than they think they do,” he said. “With the MHPAEA in place, now is the time to use that leverage. A contract is a matter between two parties—it’s not the insurance company telling you what to do. Each party wants something the other party has. They write the contract, and I look at it as a proposal, which it is until you and the other party sign it. You have to be willing to say ‘no’ and demand a better contract if you are going to stick by what you think is right. Many people, including lawmakers, insurance commissioners, subscriber employers and unions, patients, and the state attorney general are interested in ensuring that insurance companies, which often do not respond to logic, reason, or patient needs, are compliant with the MHPAEA, and physicians and patients should not be shy in bringing them into the discussion.” ■