Read or Listen to the Healthy Contracts Petition - 15 Point Proposal
Healthy Contracts Proposal
The purpose of this petition is to protect provider practices and public health by holding Healthplans accountable for the contracts and policies they write. This petition was created with the input and unanimous support from a contract negotiation attorney, a certified auditor, a Chief of Internal Audit and Compliance for a Healthcare System, 7 psychologists, 5 counselors, and 3 social workers. This petition is based on 3 years of dedicated effort, and findings, that generated 8 peer reviewed documents which total more than 200 pages. The following is drawn from a continuing education training offered by Mentor Research Institute, which is a 501c3.
We begin with our assertion that many thoughtful therapists and provider practices have terminated their contracts or are no longer accepting referrals from certain Healthplans. At the same time, this is happening, efficient, high quality, and effective mental health care in Oregon is desperately needed. Oregon is ranked 50th of the 51 states for its lack of access and delivery of mental and behavioral health services. Unfortunately, Healthplan contracting values, objectives, and controls are so archaic, undefined, and biased. that the risks for damage to public health and mental and behavioral health provider practices requires a legislated intervention program. This assertion includes public and private independent and group practices. Based on an actual contract negotiation, and audit of that Healthplan's contract, we also assert that Healthplans do not know how to contract with mental and behavioral health providers, so that both are successful.
The problem put simply is this. Current Healthplan contracts are being changed in ways that are not aligned with state and federal recommendations, nor industry publications and experts. Providers are given short deadlines to sign contracts, and mistakenly presume the contracts are standard. But they are not standard, and seriously lack the information, and education necessary to make an informed decision. We believe Healthplans are incapable and cannot be trusted to implement fee-for-service, alternative payment, or value-based payment contracts. The effects of those contracts on provider practices will almost certainly impact public health over the next 3 years. For example, an independent audit of an Oregon Healthplan, referred to as Healthplan X, provided evidence that Healthplans will benefit financially, with no risk to the Healthplan from the contracts they write, but almost certainly risk harm to public health and providers. We can expect that Healthplans will not be receptive to changing contracts that are to their benefit. That Healthplan contract withheld critical information, and will almost certainly waste provider resources, and ultimately, the contract will risk wasting employer and taxpayer dollars. We believe based on evidence and analysis, that Healthplans profit while they put providers, and public health, and employers at risk. Providers are monitored and accountable to Healthplans and licensing Boards. Healthplans should be monitored and accountable for the contracts they create, and change, and expect providers to implement.
So the question is simple. Is it possible to increase patient access, improve quality, and improve health outcomes? The answer is yes. But only if there is a legislative intervention. It is almost certain that providers are not aware that fee-for-service is being changed, and that fee-for-service is being replaced with alternative payment models and value-based payments. Providers lack the information that is necessary to ask questions and to offer recommendations with effect. Also, providers are being fooled. For example, the Oregon Sustainable Healthcare Program is focused on holding growth to 3.49%. One Healthplan is reducing reimbursements by 3.2% rather than supporting the allowable increase. Providers were also not told their reimbursements were going to decrease automatically. If you adjust the rate reduction for inflation, the total value of the new contract is being reduced nearly 7% per year. Providers were fooled by the contract language, and unwittingly signed that contract.
Based on the audit of Healthplan X, if nothing changes, there is a probable, to almost certain, moderate to catastrophic impact on public health, and provider practices over the next 3 years. Once these contracts are set in motion, providers will have no choice but to drop their contract. Or lower their case mix severity. Or, they can "game" the contract. For example, providers can deflect Healthplan members which they do not feel they can serve.
It is important that Healthplans and providers have conversations. Healthplans have been known to offer contracts that are ambiguous, or confusing, and or have defects. Only a few Healthplans will negotiate contracts in good faith, and with full disclosure. Healthplans withhold important information. and sometimes critical information that would be detrimental to the Healthplan. Healthplans often do not respond to questions from 1 provider, or they simply avoid answering provider questions. Some Healthplans are focused more on retaining total power just to keep the upper hand. They won't negotiate anything. Not even ridiculous requirements that are unrelated to mental health services. Healthplan X, thus far, is not responding to reasonable questions and concerns raised by an auditor, and by a group of providers. Rather than acknowledge a defect and this risk it creates, Healthplan X simply did not respond, and repeatedly delayed responding, even claiming they forgot. This is where a certified internal auditor can be very helpful. A Healthplan can easily ignore one provider. But not a Certified Internal Auditor. The core function of an independent auditor is to objectively gather, aggregate, analyze, and report on existing or proposed values, objectives, controls, test scripts, and key performance indicators. This role is important, and must be respected by Healthplans. Audits can be used by lawmakers, employers, and contracted agencies that provide services for Commercial Healthplans, and CCO's. It can also be used by provider organizations to support better contracts, and better health outcomes.
15 Point Proposal
What follows is a 15-point proposal for a legislative intervention program that will align Healthplans and provider efforts. The proposal is based on a proven business management program which is routinely used in healthcare operations.
The State of Oregon could create a contract audit committee, referred to as the C.A.C.. The committee would be comprised of at least 9 Oregon licensed psychotherapists, and 2 licensed mental health professionals who are Healthplan representatives. The committee would consist of unpaid volunteers who are licensed providers, who represent the counseling, social work, psychologist, and marriage and family therapy professions. The committee should be recruited from frontline providers.
The C.A.C., would report to the legislature, and to the Oregon Health Authority. Reports will be reviewed, approved, and made public. The C.A.C.. will be funded by annual fees assessed, and paid by Healthplans in Oregon. The annual assessment would be $10,000 per Healthplan. That assessment is trivial to a Healthplan when compared to the benefit to public health.
The C.A.C. will hire a full-time certified internal auditor who reports to, and is directed by the C.A.C.. Certified internal auditors are referred to as “truth tellers”. Their certification standards require them to operate independently, to be objective, and to not take sides. The necessary job description for the certified internal auditor is available from Mentor Research. That job description was co-created by the Chief of Internal Audit and Compliance for Saint Charles Health System.
Committee oversight of an independent auditor is a standard practice in business and healthcare operations. This approach is used when individuals, groups, and organizations, must work together to achieve objectives. At this time, Healthplans are not aligned with each other. And collectively they are not aligned with providers. Provider practices must contend with a dozen or more Healthplans who are offering, and changing contracts. Sometimes giving providers only 30 to 60 days to sign. This is unfair and unacceptable.
The C.A.C. could create a confidential process for provider practices to report their contract related concerns to the C.A.C. Those concerns would be gathered, aggregated, analyzed, and reported to the legislature, the Oregon Health Authority, and then made public only if approved. Based on the concerns reported by providers, a yearly audit plan could be created. 42 concerns have already been identified. The C.A.C., working with the independent auditor, could oversee the audit of approximately 3 to 5 Healthplan contracts per year. The C.A.C. could also oversee subcontracts for an estimated 15 surveys and interviews per year. All this will benefit Healthplans, providers and the public.
The C.A.C. will direct the independent auditor to audit, Healthplan contract language, policies. and practices which impact patient health, access to healthcare, as well as quality and outcome initiatives. The Independent auditor's role will have restrictions. For example, the independent auditor may not audit a Healthplan’s internal business operations. Nor would they request proprietary information. The independent auditor may interview, and request information from Healthplans, only if the information is relevant to provider contract decisions, negotiations, requirements, reimbursements, incentives, procedure codes, and administrative processes.
The C.A.C. will direct the independent auditor to audit new HealthPlan contracts, and changes to existing contracts, before those contracts can be executed. Providers should be educated before they unwittingly sign contracts that have hidden risks and unhealthy agendas. The results of those audits will be reviewed, approved, and reported to the legislature, and only then published. It is important that providers be given information necessary to support informed contract decisions.
The C.A.C., working with the independent auditor, could have the authority, to create recommendations based on findings, and recognized standards. For example, working with the Oregon Health Authority, the C.A.C. could recommend that Healthplans not offer contracts, which have a probable to almost certain risk of intimidation, discrimination, or alienation of patients and providers. The C.A.C could also pause new contracts, and revisions, (before they can be executed) especially if they create a probable, to almost certain, moderate to catastrophic threat to contract objectives.
The guiding values of the C.A.C. should be aligned with the Oregon Health Authority. That is. to promote, (1) evidence-based practices, (2) patient-centered care, and (3), improved quality and health outcomes, at an appropriate cost. The C.A.C., working with the independent auditor, could provide information and support, to guide, and guard the public. The C.A.C. will identify contract terms and policies that almost certainly would be discriminatory, unethical, unfair, or harmful.
The C.A.C., working with the auditor, could establish minimum necessary charting requirements, that are clinically, culturally, and legally appropriate for provider practices. This is important because charting requirements across multiple Healthplans have become inconsistent, clinically useless, and take time away from critical patient care. Twenty to 40% of clinical time is spent creating detailed chart notes that patients, physicians and providers don't need, nor do they have time to read. Healthplans expect more information than they need. Charting should adhere to minimum necessary federal regulations and best practices. Fortunately, research, documentation, and methods are available to create minimum necessary charting guidelines across all Healthplans. There are at least 7 reasons that providers create chart notes. Only one is for healthcare purposes. The remaining 6 are for administrative purposes that create no value, and are vulnerable to "gaming." In other words, mental and behavioral health chart notes, for outpatient services, cannot be verified as accurate during an audit. Only that they may be incomplete in ways which don't matter clinically. For example, chart notes are still audited by Healthplans, who look for evidence of "medical necessity." The term medical necessity, as a standard, has been replaced by the Center for Medicare and Medicaid. Providers should be documenting for the "reasonable and necessary" standard. Their notes should be concise and useful, not long and useless to patients.
The C.A.C. could require Healthplans to create shared values, objectives, controls, test scripts, and key performance indicators by working with providers. This requirement is essential to successfully implement a quality or outcome improvement program. Healthplans, not just providers, should be held accountable to their objectives. In effect, there should be a partnership or collaboration between providers and Healthplans that will support implementation of shared values and objectives. The C.A.C., working with the auditor, could conduct interviews and review policies that will ensure that clinical, financial, public health benefits, and risks, are transparent and appropriate.
The C.A.C. could advocate, based on objective evidence, that providers must be given the necessary CPT codes for treatment of special need populations, that require additional time and resources. This would include children, adolescents, adults, and families. This is critical for patients who have severe functional problems, and or significant symptom burdens, that require additional resources for evaluation, coordination of care, and consultation.
Most providers are specialized in the services they provide. A general practice, in mental and behavioral health services, is a thing of the past. Nobody treats everything. Without these CPT codes providers cannot establish baselines and determine if contracts are feasible. Healthplans should not write contracts that are not feasible. The Oregon Healthplans are not supposed to operate like casinos in Las Vegas. Providers should not be expected to gamble on Healthplan contracts. Especially if their contracts are loaded with high-risk populations, which have special needs, and have severe social determinants of health.
Any provider practice which has been audited, could request that the C.A.C. audit the Healthplan's audit. The independent auditor should be able to follow the exact same audit procedure (called a test script). and come to the same result. The validity of the Healthplan's audit could then be supported or challenged. The independent auditor could provide documentation of that audit to the C.A.C. The C.A.C. could then recommend a new standard and training for all providers. The C.A.C. could release that audit to the provider when appropriate.
The C.A.C. could act to ensure that Healthplans offer transparent contracts, with policies which do not undermine provider clinical judgement. Healthplans, are not healthcare providers. They should not undermine patient-centered care for special populations, without allowing a third-party audit. This means that provider services should support their shared values and objectives, and are ethical, evidence based. and patient centered.
The C.A.C. should not be denied the authority to investigate Healthplan contracts. The Healthcare landscape of issues and problems can change over time. Providers don't know what they don't know yet. They don't have a crystal ball. The language in contracts, and policies, are open to interpretation, and depend on the context. For example, one Healthplan is requiring providers to self-audit for compliance with State and Federal regulations, that the Healthplan, the Oregon Health Authority, and even private attorneys can't explain. Providers should not be required to attest to compliance with a regulation that is ambiguous, and they can't understand. Putting that risk on providers, will save Healthplan money, but is not fair, and could come back and bite providers who, unwittingly attest falsely by signing their name under penalty of law.
We want to explain the difference between a contract lawyer and an independent internal auditor. Contract lawyers, draft, negotiate, review, and manage business contracts. They specialize in mediating conflicts, or setting up agreements between, and among parties whether those parties are individuals or businesses. Contract lawyers charge $350 or more per hour. The cost to negotiate or change a contract can be more than the reimbursement for the services provided to a Healthplan. The C.A.C. can fill an important gap by speaking with Healthplans, recommending education to providers, but not giving legal advice to providers.
Lawyers are not auditors. Certified internal auditors can serve as an integral element in a collaborative initiative in mental and behavioral healthcare. Their skills can enhance and support the development of shared values and objectives. They can support the success of fee-for-service, as well as value-based reimbursement methods. Internal auditors have standards. They are objective and strive to be “truth tellers.” Their certification standards require them to operate independently, and to not take sides. They use objective interviews, surveys, and measures, which are statistically reliable, valid, and useful. They are "not" forensic auditors. A certified internal auditor is also not a compliance auditor. A Healthplan compliance auditor focuses on finding fault and fraud, not opportunities for education, training, and changing policies and strategies. Their focus is on identifying deviations from what is needed, intended, or expected. Independent internal auditors report their findings. recommend solutions, and work to create success for everyone involved. They are proactive and educative. and not reactive or punitive. The use of an independent auditor is vitally important because provider practices do not have the legal and financial resources to monitor or challenge or negotiate necessary changes in contracts. A small group of providers is no match for a Healthplan which has more legal resources and financial power.
It is important that Healthplans have conversations with providers. Healthplans have been known to offer contracts that are ambiguous or confusing, and or have defects. Very few, if any Healthplans in Oregon will negotiate contracts in good faith, and with full disclosure. Healthplans withhold important information. and sometimes critical information that would be detrimental to the Healthplan. Healthplans often do not respond to questions from 1 provider, or they simply avoid answering provider questions. Some Healthplans are focused more on retaining total power just to keep the upper hand. They won't negotiate anything. Not even ridiculous requirements that are unrelated to mental health services. Healthplan X, thus far, is not responding to reasonable questions and concerns raised by an auditor, and by a group of providers. Rather than acknowledge a defect and this risk it creates, Healthplan X simply did not respond, and repeatedly delayed responding, even claiming they forgot. This is where a certified internal auditor can be very helpful. A Healthplan can easily ignore one provider. Again. A core function of an independent auditor includes gathering, aggregating, analyzing, and reporting on existing or proposed values, objectives, controls, test scripts, and key performance indicators. This role is important and should be respected by Healthplans. Audits can be used by law makers, employers, and contracted agencies that provide services for Commercial Healthplans, and CCO's. It can also be used by provider organizations to support better contracts, and better health outcomes.
A certified independent auditor has the skills necessary to identify values and objectives, and to propose measurement strategies that, (1) value diversity, (2) consider a range of patient sub-populations, (3) recognize the dynamics of difference, (4) incorporate cultural knowledge, (5) adapt to the diversity and the cultural contexts of populations who are marginalized and underserved, and (6) to detect anomalies or differences from what is expected in contract agreements, and finally, (7) to provide necessary education, and a range of potential solutions.
Healthplans should not be free to offer whatever contracts they want without good faith conversations with providers. If Healthplans want quality improvement, benchmarks, targets, and improved health outcomes, Healthplans must collaborate and or partner with providers. Healthplans in Oregon have committed to the development of value-based reimbursement as a means of supporting outcomes improvement. The same logic for building and launching a Rocketship applies to Healthplans trying to build, and offer fee-for-service, alternative payment methods, and value-based payment contracts. There must be a mission plan. People will not get on a Rocketship if they don’t know where it’s going. Or the resources available for lift-off were not defined or available. Or there were no safety protocols, especially if passengers are not advised of the landing plan. Healthplans and care providers can’t begin a massive shift in how care values are approached. Nor can they just make it up as they go. Providers certainly should not be tricked and unwittingly sign contracts.
For contracting, the C.A.C. and an independent auditor will support the function of a mission control. Providers must know the plan before they sign a contract that has a risk of damaging public health or wasting employer money and taxpayer dollars.
For more information go to MentorResearch.org. There you will find articles on the value of charting, measurement-based care, and value-based contracting. A link to the Healthy Contracts Petition is available at MentorResearch.org.
Statement of Purpose and Background: This article is based on investigation and research regarding requirements for successful implementation of Value Based Reimbursements (VBR), FFS, APM, and VBPs. This article requires study and is not written for lay people seeking a quick read to gain expert awareness. The content of this paper was informed through consultation with a Certified Internal Auditor and Fraud Examiner who provided a framework for investigation and how contracts can be audited in ways which can ensure parties to contracts are accountable and successful. There are many purposes of this paper, the most important of which are education and to encourage practice providers to ask questions and learn more about auditing FFS, APM, and VBP contracts where measurement-based care (MBC), pay-for performance (P4P) and outcome informed care (OIC) are the touchpoints for mental and behavioral healthcare contracts design and implementation. This paper also presents for discussion what was missing and should not be done referring to one Healthplan’s contract proposal. Guidance for this article has been drawn from provider practices, professional associations, thought leaders, industry consultants, the Oregon Health Authority (OHA), the Department of Health and Human Services Health Payment Center Learning Action Network (HPC-LAN), and the Oregon Value-Based Payment Compact (ORCompact). The purpose of this document is to offer readers and decision makers basic understanding of important issues that pertain to FFS, APM and VBP contracting, with a pathway to develop contracts in partnership with Healthplans. That pathways can only assured through continuous involvement of an Independent and Certified Internal Auditor and Fraud examiner. Such a pathway will require clear standards, controls and guardrails for contracting, managed within legislation which protects the public interest and assures access to mental, behavioral and substance abuse treatment services. This includes commercial contracts, Medicare, Medicaid and employer insurance payers in Oregon and in ways that are not subject to Federal restrictions such a the Federal Trade Commission and Antitrust.
Living Document: This article is a living document that will be revised as new information is made available. The article is for educational and training purposes. Questions and feedback can be submitted by contacting MRI.
Disclaimer: The paper is intended to raise issues that relate to the legal and ethical relationships of mental health practices and healthcare operations support services. This article is a living document that will be revised as new information is made available. The article is for educational discussion and training purposes. Questions and feedback can be submitted by contacting MRI.
The issues discussed in this article are potential conflicts of interests between a type of healthcare operations support business and covered entities who benefit from the services of such businesses. The opinions and concerns expressed do not represent nor should they be taken as legal advice. Any comments posted are not necessarily shared by the authors or the Board of Mentor Research Institute.
Statements, concerns and reasons for those concerns have been presented to encourage discussion among the mental health professionals, legislators, and regulatory bodies. Healthcare X’s is one example of contracting behavior which some Healthplans are adopting in Oregon. Conclusions about Healthplan X may be revised as new information is available.
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