Signs, Risks, Reasons, and What to Do When Value-Based Payment Contracts are Contracts of Adhesion Which may be Unfair, Fraudulent or Violate Antitrust Laws
4 Discussion Papers
Signs of Bad Faith in Value-Based Payment Contracts For Mental and Behavioral Health Services offered by Healthplans
Providers should be vigilant for signs of Bad Faith when evaluating value-based contracts from health plans. Ensuring transparency of expectations,, fair risk-sharing, realistic performance targets, adequate support, and open communication are the keys to protecting providers’ interests and delivering quality care to patients. If these elements are lacking, providers should proceed with caution, consider negotiating for better terms or seeking alternative partnerships. By recognizing the red flags and insisting on transparent shared values, objectives, controls, tests of design and effectiveness, and key indicators of success, providers can protect themselves from being taken advantage of by bad faith contracts.
Lack of Transparency
Ambiguous Contract Terms: Value-based contracts which are vague or ambiguous about key terms, such as performance metrics, reimbursement rates, and penalties, are a red flag. For example, if a contract mentions that providers will be reimbursed based on "quality outcomes" without clearly defining what “quality outcomes” are or how those will be measured, the contract might be designed to give the health plan flexibility to manipulate the terms to their own benefit later on. Providers should insist on clear definitions and criteria for performance metrics to ensure they understand exactly what is required and how it will be measured.
Undisclosed Calculations: If the health plan is not transparent about how they calculate performance metrics, shared savings, or risk adjustments for their value-based contract, it is a sign the health plan may be hiding the ways they plan to benefit financially. For example, a health plan might offer a shared savings program but not disclose the baseline costs against which savings are measured, making it impossible for providers to verify if they are being fairly compensated. Providers should request detailed explanations and calculations to understand how their performance will be evaluated and compensated.
Imbalanced Risk-Sharing
Skewed Risk Distribution: A value-based contract that disproportionately places financial risk on providers while offering minimal upside benefits is problematic. For example, a contract might require providers to absorb most of the costs for patients who fail to meet health targets due to factors outside the providers' control, such as socioeconomic conditions, without providing adequate compensation for these added risks. Providers should negotiate for balanced risk-sharing arrangements that account for factors beyond their control and ensure fair compensation.
Unrealistic Performance Targets
Unattainable Goals: Value-based contracts that set performance targets which are difficult or impossible to achieve given the provider's patient population or resources indicate that the health plan is setting providers up for failure. Performance targets are flawed if they don’t account for social determinants of health and other external factors affecting patient outcomes. For example, setting a target to reduce hospital readmissions by 50% within a year without consideration of the existing health conditions and socioeconomic challenges of a patient population is unrealistic. Providers should ensure that targets are attainable and reflect the realities of their patient population.
Lack of Flexibility: If a value-based contract does not allow for adjustments based on changing circumstances or new information, it indicates the health plan is more interested in securing financial benefits than genuinely focused on improving care. For instance, if new treatment guidelines are issued or there is an outbreak of a new illness, a rigid contract might continue to hold providers to outdated, unattainable targets. Providers should enter value-based contracts that allow for flexibility and adjustments in response to new developments affecting population health..
Inadequate Support and Resources
Insufficient Support: Health plans offering value-based contracts in good faith should provide adequate resources and support to help providers meet performance targets. A lack of support, such as insufficient data sharing, training, or technical assistance, suggests bad faith intentions. For example, a health plan might promise to provide data analytics tools to help track patient progress but then fail to deliver, leaving providers without necessary information. Providers should ensure that health plans commit to providing the necessary support and resources to help them succeed.
Delayed Payments: Consistent delays in reimbursement or shared savings payments might be a tactic to strain providers financially, forcing them to either comply with unfavorable terms or withdraw from a value-based contract. For example, a health plan might take months to reimburse providers for services rendered, causing cash flow problems and making it difficult for the practice to operate efficiently. Providers should insist on clear payment schedules and penalties for late payments to protect their financial stability.
Manipulative Practices
Selective Risk Adjustment: Health plans might use risk adjustment mechanisms in ways that unfairly shifts financial risk to providers. If adjustments do not accurately reflect the complexity of the patient population, that can result in providers being unfairly penalized. For instance, a health plan might adjust risk scores to downplay the severity of patient conditions, making it look like providers are underperforming when they are actually dealing with high-risk patients. Providers should ensure that risk adjustment methods in a value-based contract are fair and transparent.
Excessive Administrative Burden: Imposing excessive administrative burdens on providers, such as requiring extensive treatment documentation and/or frequent reporting, make it difficult for providers to comply with value-based contract terms, increasing the likelihood of penalties. For example, a contract might require detailed monthly reports on a wide range of metrics, consuming significant time and resources that would otherwise be spent on patient care. Providers should seek to minimize unnecessary administrative burdens and focus on meaningful metrics.
Poor Communication and Engagement
Unwillingness to Negotiate: A health plan that is unwilling to negotiate or discuss terms of a value-based contract may be acting in bad faith. Open, honest negotiation is essential for establishing fair agreements. For example, if a health plan refuses to consider provider feedback on unrealistic performance targets or penalties, it suggests the health plan is more interested in their own financial gain than in collaborative partnership. Providers should seek value-based contracts with health plans willing to engage in good faith negotiation and consider providers’ perspectives.
Lack of Engagement: If a health plan does not engage in regular communication or provide timely responses to provider inquiries, it indicates a lack of commitment to genuine partnership. For instance, if providers have questions about a value-based contract’s terms or they need assistance with meeting performance targets and the health plan is unresponsive, that shows disregard for the providers’ needs and challenges. Providers should ensure there will be clear channels of communication and regular engagement with the health plan.
Transparent Shared Values, Objectives, Controls, Tests of Design and Effectiveness, and Key Indicators of Success
Transparent Shared Values and Objectives: A good faith value-based contract should have clearly stated values and objectives shared by the health plan and providers. This means both parties agree on the primary goals, such as improving patient outcomes and reducing healthcare costs. For example, a contract should explicitly state that both parties are committed to evidence-based care, patient-centered practices, and continuous improvement. Transparency in these shared values and objectives ensures that both parties are aligned in their efforts and that there is no hidden agenda.
Controls and Tests of Design and Effectiveness: Effective contracts include mechanisms to monitor and evaluate a value-based contract's design and implementation. That involves setting up controls and regularly testing the effectiveness of the contract terms. Regular audits and performance reviews help ensure that both parties are adhering to the contract terms. For example, quarterly performance reviews can assess whether providers are meeting targets and whether the health plan is providing the necessary support.
Key Indicators of Success: Clearly defined key performance indicators (KPIs) are essential for measuring the success of a value-based contract. These indicators should include screening for symptoms and functional problems, progress, therapist-patient alliance, and patient satisfaction. For instance, KPIs might include patient satisfaction scores, readmission rates, or cost savings. Transparent reporting of these indicators helps build trust and ensures that both parties are working towards the same goals. For example, a contract might include a KPI to improve patient satisfaction scores by 10% over a year, with regular progress reports shared between the health plan and providers.
By incorporating transparent shared values, objectives, controls, tests of design and effectiveness, and key indicators of success, Healthplans and providers can create more equitable and effective value-based contracts. Those elements help ensure that both parties are committed to the same goals and that there are clear mechanisms in place to monitor and evaluate progress.
What are the Risks Which Impact the Objectives of a Measurement and Value-Based Payment Model When the Model is Offered as a Contract of Adhesion?
Contracts of adhesion are agreements in which one party holds significantly more power than another, and the party with power presents contract terms on a take-it-or-leave-it basis to the entity with less power. In the context of health plan measurement and value-based payment contracts, such contracts pose significant risks of failure even if they might be carefully managed.
The risk that a healthplan’s measurement and value-based payment contract will fail is significantly heightened when it is a contract of adhesion. Lack of negotiated terms, imbalanced risk, poor communication, potential legal and ethical concerns, and the risks of inadequate support each contribute to a challenging environment for providers. To mitigate these risks, it is crucial for health plans to engage in fair negotiation, ensure balanced risk-sharing, maintain open communication, and provide adequate support and resources. By doing so, they might foster a collaborative and successful partnership with providers, possibly leading to better patient outcomes and more sustainable healthcare practices.
Lack of Negotiation and Customization
One-Sided Terms: A contract of adhesion typically contains one-sided terms that heavily favor the health plan. The imbalance can create significant challenges for providers. Providers may be forced to accept terms that are not tailored to their specific circumstances or needs. For example, providers might be required to adhere to performance metrics that are unrealistic given the patient population they serve, leading to failure to meet contract obligations.
No Room for Negotiation: The inability to negotiate terms means providers cannot advocate for adjustments that reflect the realities of their practices. This lack of customization can result in a mismatch between the contract requirements and the providers’ capabilities, increasing the likelihood of failure. For instance, if a health plan imposes uniform metrics without considering providers’ resources or patient demographics, providers will struggle to meet the targets.
Imbalanced Risk and Accountability
Disproportionate Risk on Providers: Contracts of adhesion often place disproportionate risk on providers while shielding the health plan from many responsibilities. This can lead to financial instability for providers, who may be penalized for not achieving targets that were unachievable from the outset. For example, a contract of adhesion might stipulate that providers bear the cost of care for high-risk patients without sufficient risk adjustments, making it financially unsustainable.
Accountability Issues: When providers have little input in the contract terms, accountability becomes a major issue. Providers are likely to feel less committed to contract goals if they perceive the terms are unfair or unachievable. Providers’ lack of buy-in can lead to lower performance and higher likelihood of a contract failing to meet its objectives.
Poor Communication and Engagement
Lack of Dialogue: A contract of adhesion often leads to poor communication and engagement between the health plan and providers. Since the terms are pre-determined by the health plan, there is little incentive for ongoing dialogue and collaboration. This will hinder providers’ ability or willingness to seek clarification or support, leading to misunderstand and compliance issues.
Limited Feedback Mechanisms: Without opportunity for negotiation, providers have limited avenues to provide feedback on the contract terms. This can result in the health plan being unaware of practical challenges faced by providers, leading to persistent issues that undermine the success of a contract.
Potential Legal and Ethical Concerns
Perceived Unfairness: Contracts of adhesion can be seen as inherently unfair, raising legal and ethical concerns. Providers might challenge the contract on these grounds, leading to disputes and potential legal action. This adversarial relationship can further detract from useful focus on patient care and performance improvement.
Compliance Risks: Providers might face compliance risks if they are unable to meet the stringent terms of a contract of adhesion. This could result in penalties, reduced reimbursements, or even termination of the contract, exacerbating financial pressures and operational challenges.
Inadequate Support and Resources
Insufficient Resources: Health plans which impose contracts of adhesion may fail to provide adequate support and resources to help providers meet performance targets. For example, a health plan might mandate use of specific data analytics tools but not offer the necessary training or technical support, leaving providers ill-equipped to succeed.
Delayed or Inconsistent Payments: The power imbalance in contracts of adhesion can result in delayed or inconsistent payments to providers. This financial unpredictability can disrupt operations and hinder providers’ capacity to invest in necessary improvements, further increasing risks of contract failure.
What are the Reasons Healthplans Use Contracts of Adhesion?
Contracts of adhesion are agreements in which one party, typically in a stronger bargaining position, imposes terms on a weaker party on a take-it-or-leave-it basis. In the healthcare sector, Healthplans often use these contracts to impose stringent terms on providers. This practice can lead to several adverse consequences, as evidenced by the reasons outlined in the analysis titled "What are the Risk Impacting Objectives of a Measurement and Value-Based Payment Model when using Contracts of Adhesion?"
While contracts of adhesion are often criticized for being one-sided, health plans may have various strategic, financial, and operational reasons for employing them. Those include minimizing financial risk, maximizing profits, streamlining processes, exploiting market power, ensuring provider accountability, mitigating uncertainty, gaining competitive advantage, and meeting regulatory requirements. However, it is crucial for health plans to balance these motivations with fair practices to maintain sustainable partnerships with providers and ensure high-quality patient care.
The following is a list of reasons why a Healthplan might choose to use a contract of adhesion.
Cost Control and Profit Maximization
Minimizing Financial Risk: By imposing rigid terms and placing significant risk on providers, health plans limit their own financial exposure. This helps them control costs more effectively, ensuring that they do not bear the brunt of high patient care costs. For example, by setting stringent performance targets and penalties for non-compliance with contract terms, health plans can shift the financial burden to providers.
Maximizing Profits: Contracts of adhesion can be structured to maximize a health plan's profits. By setting favorable terms for themselves, such as low reimbursement rates and high performance standards, health plans can reduce their payout obligations while maintaining premium revenues. This approach helps them increase their profit margins.
Standardization and Administrative Efficiency
Streamlining Processes: Standardized contracts reduce administrative complexity and costs for health plans. By using a one-size-fits-all approach, health plans can streamline contract management, reduce legal expenses, and simplify the implementation of performance metrics and reporting requirements.
Consistency Across Providers: Using standardized contracts ensures consistency in how health plans interact with different providers. This can simplify comparisons across providers, making it easier to manage networks and assess overall performance. For example, having uniform terms and metrics allows a health plan to aggregate data and analyze trends more efficiently.
Leverage and Negotiating Power
Exploiting Market Power: Health plans with significant market share can leverage their negotiating power to impose contracts of adhesion on providers who have limited alternatives. Providers, especially smaller practices, may feel compelled to accept these terms to gain access to a large patient base or to remain competitive.
Reducing Negotiation Costs: Negotiating individual contracts with each provider can be time-consuming and costly. By using contracts of adhesion, health plans can reduce the time and resources spent on negotiations, allowing them to focus on other strategic priorities.
Risk Management and Performance Assurance
Ensuring Provider Accountability: Health plans may use stringent terms to ensure that providers are held accountable for their performance. By setting high standards and penalties, health plans aim to incentivize providers to deliver high-quality care and meet performance targets. This approach can be particularly appealing for health plans focused on value-based care.
Mitigating Uncertainty: Contracts of adhesion can help health plans mitigate uncertainty by clearly defining expectations and responsibilities. This reduces likelihood of disputes and ensures that providers understand the consequences of failing to meet contractual obligations.
Competitive Advantage and Market Positioning
Differentiating the Health Plan: Health plans may use contracts of adhesion to differentiate themselves in the market by promoting their commitment to high standards and cost control. This can attract employers and individuals looking for plans that emphasize accountability and efficiency.
Building a Reputation: By enforcing stringent terms and focusing on performance, health plans can build a reputation for being rigorous and effective in managing care. This reputation can enhance their credibility with regulators, employers, and other stakeholders.
Compliance and Regulatory Pressures
Meeting Regulatory Requirements: Health plans may use contracts of adhesion to ensure compliance with regulatory requirements. Standardized contracts can help ensure that all providers adhere to specific regulations and quality standards, reducing the risk of non-compliance and associated penalties.
Aligning with Policy Goals: Health plans may align their contract terms with broader policy goals, such as improving care quality and reducing costs. By imposing rigorous standards, health plans can demonstrate their commitment to these goals and align with governmental and industry initiatives.
Legal Brief
Addressing the Open Door to Bad Faith Agreements, Fraud and Antitrust Violations in Measurement and Value-Based Contracting for Mental and Behavioral Health Services
Introduction
This legal brief is presented to review the issues surrounding the use of contracts of adhesion by Healthplans, specifically in the context of measurement and value-based payment contracts. We argue that such contracts pose significant risks to healthcare providers and may be considered unconscionable and unfair under existing legal and regulatory frameworks.
Background
Contracts of adhesion are agreements where one party, typically in a stronger bargaining position, imposes terms on a weaker party on a take-it-or-leave-it basis. In the healthcare sector, Healthplans often use these contracts to impose stringent terms on providers. This practice can lead to several adverse consequences, as evidenced by the very reasons outlined in the analysis titled "The Risks of a Healthplan Measurement and Value-Based Payment Contract as a Contract of Adhesion."
Risks Posed by Contracts of Adhesion
Cost Control and Profit Maximization
Healthplans impose terms that minimize their financial risk and maximize profits, often at the expense of providers who will be forced to accept low reimbursement rates and high performance standards that are difficult to achieve.
Standardization and Administrative Efficiency
Contracts of adhesion allow Healthplans to streamline processes and maintain consistency across providers, but this often results in rigid terms that do not account for regional or specialist provider circumstances, such as high case-mix severity, leading to inadequate treatment.
Leverage and Negotiating Power
Healthplans exploit their market power to impose non-negotiable terms on providers, particularly smaller practices, which have limited alternatives and are compelled to accept these terms to access patients.
Risk Management and Performance Assurance
Stringent terms are used to ensure provider accountability and mitigate uncertainty for Healthplans, but those terms often result in providers bearing disproportionate risks, which can lead to financial instability, provider retention problems, and operational challenges including gaming.
Competitive Advantage and Market Positioning
By imposing stringent contract terms, Healthplans can differentiate themselves in the market and build a reputation for rigorous management, without the necessary policies and provider support, and potentially at the expense of taxpayer funds.
Compliance and Regulatory Pressures
Healthplans may use adhesion contracts to ensure compliance with regulatory requirements, however this approach can place undue burdens on providers, leading to potential non-compliance and penalties.
Legal Precedents and Regulatory Frameworks
Case Law
Graham v. Scissor-Tail, Inc. (1981)
The California Supreme Court held that an adhesion contract is enforceable unless it is procedurally and substantively unconscionable. This precedent indicates that if a healthplan's contract is found to be both procedurally (lack of negotiation, take-it-or-leave-it nature) and substantively (unfair terms) unconscionable, it could be challenged and potentially voided.
Armendariz v. Foundation Health Psychcare Services, Inc. (2000)
This case emphasized that contracts, including arbitration agreements, must have a “modicum of bilaterality.” Contracts that impose excessive burdens on one party while exempting the other from similar responsibilities can be struck down as unconscionable. Healthplan contracts that place disproportionate risk on providers could be challenged under this precedent.
Heller v. Uber Technologies Inc. (2020)
The Supreme Court of Canada ruled that an arbitration clause in a contract of adhesion was unconscionable due to the significant power imbalance and lack of meaningful choice. This highlights that contracts of adhesion can be invalidated if they are exploitative and unfair.
Regulations
Affordable Care Act (ACA)
Section 2706(a) of the Public Health Service Act prohibits discrimination against healthcare providers acting within the scope of their license. This suggests that Healthplans must engage in fair contracting practices and cannot impose unduly burdensome terms on providers based solely on their bargaining power.
National Association of Insurance Commissioners (NAIC) Model Act
The NAIC’s Health Carrier Prescription Drug Benefit Management Model Act provides guidelines for fair contracting practices between Healthplans and providers, encouraging transparency and fairness in contract terms.
State Regulations
California: The Knox-Keene Health Care Service Plan Act regulates health care service plans, requiring fair contracting practices and ensuring that contracts with providers are reasonable and provide adequate reimbursement.
New York: The New York Department of Financial Services (NYDFS) oversees health insurance plans, implementing regulations to ensure fair treatment of providers and requiring Healthplans to file their contracts for review.
Challenges Faced by Mental and Behavioral Health Group Practices
Mental and behavioral health group practices often do not have the experience, leverage, or financial resources to litigate issues arising from contracts of adhesion. Litigating these issues can be prohibitively expensive and time-consuming, and even if successful, might only void certain provisions of a contract without providing a timely solution. This places these practices at significant disadvantage, forcing them to accept unfair terms that can jeopardize their financial stability and ability to provide care.
Conclusion
Contracts of adhesion used by Healthplans in measurement and value-based payment contracts pose significant risks to healthcare providers, including financial instability, lack of customization, poor communication, and potential legal and ethical concerns. Existing case law and regulatory frameworks provide mechanisms to challenge and regulate these contracts to ensure fairness and equity.
We urge the state legislature to review and strengthen regulations governing Healthplan contracts to protect healthcare providers from unfair practices. By ensuring that contracts are fair, transparent, and balanced, we can promote a more sustainable healthcare system that benefits providers, patients, and Healthplans alike.
Recommendations for Healthy Contracts Legislative Action:
Strengthen Oversight: Implement stricter oversight of Healthplan contracts to ensure they are fair and balanced.
Promote Transparency: Require Healthplans to disclose detailed information about contract terms, performance metrics, and reimbursement calculations.
Protect Providers: Introduce legislation that prevents Healthplans from imposing unduly burdensome terms on providers and ensures fair risk-sharing.
Encourage Fair Negotiation: Facilitate mechanisms for providers to negotiate contract terms and provide feedback on unfair practices.
By taking these steps, the legislature can help create a more equitable and effective healthcare environment for all stakeholders.
Essential Requirements of Healthy Contracts Legislation
The legislation will require that Healthplans implement these requirements for all mental and behavioral health contracts:
Independent Certified Internal Auditors: To monitor Healthplan practices and stop unethical activities that undermine service quality, access, and appropriate care duration. Independence is crucial to ensure unbiased evaluations and reporting, which will increase quality and improve outcome, health and prevent fraud.
Ethics Point Portal: Provides a secure, anonymous platform for reporting unethical practices and non-compliance, encouraging transparency and accountability within Healthplans, and between Healthplans and Providers’ practices. The ethics point portal must be overseen directly by the independent certified internal auditor.
Clearly Written Plain and Understandable Contracts and Policies: Ensures that all stakeholders can easily comprehend the terms and requirements, preventing misunderstandings and reducing the risk of misrepresentation and fraud. The contract and policies must be overseen directly by an independent certified internal auditor.
Draft Legislation for the Implementation of Healthy Contracts Requirements
Following is brief summary of a Legislator Draft Request available from Mentor Research Institute by request.
Title: An Act to Ensure Transparency, Accountability, and Integrity in Value-Based Payment Contracts for Mental and Behavioral Health Services
Section 1: Purpose The purpose of this Act is to ensure that value-based payment contracts for mental and behavioral health services are transparent, accountable, and free from fraud. This Act mandates the implementation of Independent Certified Internal Auditors’ contract oversight, the establishment of ethics point portals, and the requirement that all contracts and policies be written in plain and understandable language.
Section 2: Definitions
Healthplan: Any organization that provides health insurance or health benefits to enrolled members.
Independent Certified Internal Auditor (CIA): A professional auditor certified by a recognized accrediting body, such as the Institute of Internal Auditors, who is not part of the Healthplan’s management and has no conflicts of interest.
Ethics Point Portal: A secure, anonymous platform for reporting unethical practices, non-compliance, and other concerns related to Healthplan operations.
Value-Based Payment Contract: A contract that ties reimbursement to the value of care. The Oregon Health Authority defines value as evidence-based, patient-centered, and increased quality, and improved outcomes and health at an appropriate cost.
Section 3: Independent Certified Internal Auditors
Appointment and Role: (a) Healthplans must appoint one Independent Certified Internal Auditors, (b) The CIA must report directly to the audit committee or board of directors of the Healthplan, not to Healthplan management. (c) The CIA will be responsible for monitoring the Healthplan’s practices to ensure they do not undermine mental and behavioral Health service quality, access, outcomes, or medically necessary and reasonable care. (d) The CIA will conduct regular audits to detect and prevent fraud, ensuring compliance with all relevant laws and regulations. (e) The CIA will directly oversee an ethics point portal, gather, aggregate, investigate, analyze and report findings to an independent audit and compliance committee, the Healthplan CEO and Stakeholders.
Responsibilities: (a) Create controls and evaluate the design and effectiveness of internal controls. (b) Ensure the Healthplan's practices align with state, federal, and industry guidelines and best practices. (c) Report findings and recommendations to the audit committee or board of directors. (d) Ensure transparent shared values, objectives, controls, key leading indicators, rigorous tests of design and effectiveness, (e) Ensure a risk-impacting objectives analysis (RIO), a risk control matrix (RCM), residual-risk analysis are implemented. (f) Report findings, the status quo and proposes options which will support continuous improvement.
Section 4: Ethics Point Portal
Establishment: a. Healthplans must establish and maintain an ethics point portal for the anonymous reporting of unethical practices and non-compliance. b. The portal must be accessible to all stakeholders, including providers, employees, and patients.
Operation: (a) The portal must allow for secure and confidential reporting. (b) Healthplans must ensure reports are reviewed promptly and appropriate action is taken. (c) Summary reports of the issues raised and actions taken must be presented to the audit committee or board of directors quarterly. (d) the identity of a person or persons making a report will be confidential and protected by Healthplan policy to the fullest extend of state and federal laws.
Section 5: Plain and Understandable Language in Contracts and Policies
Requirements: (a) All contracts and policies related to value-based payment must be written in plain and understandable language. (b) Contracts must include clear definitions, obligations, performance metrics, and terms of reimbursement to ensure all parties can easily comprehend the requirements.
Implementation: (a) Healthplans must review and revise existing contracts and policies to comply with this requirement. (b) All new contracts and policies must be drafted to meet this standard.
Section 6: Enforcement and Compliance
Oversight: (a) The state’s regulatory authority will oversee the implementation and compliance of this Act. (b) Healthplans must submit annual compliance reports to the state’s regulatory authority, detailing their adherence to the requirements of this Act.
Penalties: (a) Healthplans found in violation of this Act may be subject to fines, sanctions, or other penalties as deemed appropriate by the state’s regulatory authority. (b) Continuous non-compliance may result in the suspension or revocation of the Healthplan’s operating license.
Section 7: Effective Date. This Act shall take effect on [Date], and Healthplans must comply with all provisions within six months of the effective date.
Section 8: Severability. If any provision of this Act is found to be unconstitutional or otherwise invalid, the remaining provisions shall not be affected and will continue in full force and effect.
Section 9: Legislative Intent. It is the intent of the Legislature that this Act be liberally construed to effectuate its purposes.
Section 10: Legislative Findings. The Legislature finds that ensuring transparency, accountability, and integrity in value-based payment contracts for mental and behavioral health services is essential for protecting public funds, improving access to quality healthcare, and maintaining public trust.
References
A Case For The Value and Importance Of Independent Internal Auditors In Contracting For Fee-For-Service, Alternative, and Value-Based Mental And Behavioral Health Services.
https://www.mentorresearch.org/value-and-importance-of-independent-internal-auditorsAlignment of ERISA with Healthy Contracts Legislation: Supported by Federal Regulations
https://www.mentorresearch.org/aligning-erisa-with-healthy-contracts-legislation-is-supported-by-federal-regulationsAlternative and Value-Based Payment Contracts Are Offered “Take it or Leave Contract” To Employers of Contracted Providers: The Challenges
https://www.mentorresearch.org/alternative-value-based-payment-contracts-of-adhesionBehavioral and Mental Health Competency and The Need For Support.
https://www.mentorresearch.org/behavioral-and-mental-health-need-for-supportBehavioral Health Quality Framework: A Roadmap For Using Measurement To Promote Joint Accountability and Whole-Person Care https://www.ncqa.org/wp-content/uploads/2021/07/20210701Behavioral_Health_Quality_Framework_NCQA_White_Paper.pdf
Benefits and Challenges of Membership in an Independent Practice Association (IPA).
https://www.mentorresearch.org/benefits-and-challenges-of-ipa-membershipCharting Requirements are Not Patient-Centered
https://www.mentorresearch.org/charting-requirements-are-not-patient-centeredContract “Gaming”: Reasons Why Value-Based Contracts Can Fail
https://www.mentorresearch.org/contract-gaming-reasons-why-value-based-contracts-will-failControls in Fee-For-Service, Alternative and Value-Based Payment Contracting
https://www.mentorresearch.org/what-is-a-controlControls, Tests of Design (TOD) and Tests of Effectiveness (TOE) in Measurement and Value-Based Contracting For Mental and Behavioral Health Services
https://www.mentorresearch.org/tests-of-design-and-tests-of-effectivenessCore Psychotherapy Values and the Erosion by Healthplan Practices.
https://www.mentorresearch.org/core-psychotherapy-values-and-the-erosion-by-healthplan-practicesDefinitions for Healthy Contracts.
https://www.mentorresearch.org/healthy-contracts-bill-definitionsDescription of Healthcare Fraud in Measurement and Value-Based Care Contracting.
https://www.mentorresearch.org/healthcare-fraud-measurement-an-valuebased-payment-contractsDescription of Healthcare Fraud by using Provider Practices as a Proxy.
https://www.mentorresearch.org/healthcare-fraud-in-measurement-and-value-based-contractingEnforceable and Unenforceable Mental and Behavioral Health Contract Requirements
https://www.mentorresearch.org/enforceable-contract-requirementsERISA and The History Of Conflict With Psychotherapy Practice
https://www.mentorresearch.org/erisa-and-the-history-of-conflict-with-psychotherapy-practiceFinancial Advantages and Disadvantages of IPAs And Group Practices.
https://www.mentorresearch.org/financial-advantages-and-disadvantages-of-ipas-and-group-practicesFive Types of Psychotherapy Audits.
https://www.mentorresearch.org/psychotherapy-practice-auditsGood Faith and Fair Dealings in Healthcare Contracting.
https://www.mentorresearch.org/good-faith-and-fair-dealingHealthplan Contracts and Psychotherapy: Beware Shell Games.
https://www.imhpa.org/valuebased-contracting-for-psychotherapy-healthplan-gamesHealthy Contracts: Ensuring Ethical and Collaborative Agreements in Mental Health Services.
https://www.mentorresearch.org/healthy-contracts-ensuring-ethical-and-collaborative-agreements-in-mental-health-servicesHealthy Contracts Legislation as Essential!
https://www.mentorresearch.org/healthy-contracts-legislation-is-essentialHealthy Versus Toxic Contracts
https://www.mentorresearch.org/healthy-toxic-contracts-conversations-and-auditsHigh Case-Mix Severity Must be Considered in Value-Based Contracting.
https://www.mentorresearch.org/high-case-mix-severity-must-be-considered-in-valuebased-contractingHealthplan and Medicare Advantage Risk Scores and “Clawbacks”
https://www.mentorresearch.org/medicare-advantage-risk-adjustments-and-clawbacksHow Can an Independent Certified Internal Auditor Support Mental and Behavioral Health Contracting.
https://mentorresearch.org/how-can-an-independent-certified-internal-auditor-supportHow and Why Should the Independence of Certified Internal Auditors be Ensured?
https://www.mentorresearch.org/maintaining-independence-of-internal-auditorsHow Psychotherapy Practice Iis Being Transformed to High-Profit Managed Care.
https://www.imhpa.org/private-practice-is-transformed-to-highprofit-managed-careImportance of Transparent Shared Values, Objectives, Controls, Key Indicators of Success, Tests of Design, and Tests of Effectiveness in Value-Based Payment Contracts for Mental and Behavioral Health Services.
https://www.mentorresearch.org/importance-of-shared-values-objectives-indicators-of-successIndependent Certified Internal Auditor – Example Job Description
https://www.mentorresearch.org/independent-certified-internal-auditorIndependent Certified Internal Auditor: The Bridge Between Stakeholder and the Healthplan https://www.mentorresearch.org/auditor-shall-be-a-point-of-contact-for-stakeholders
Informed Consent Motivates Patients to Game Outcome Measures.
https://www.mentorresearch.org/informed-consent-motivates-gaming-outcome-measuresIMHPA Collaboration with Moda Health for VBC, VBP, VBR, MBC, OIC.
https://www.mentorresearch.org/mri-amha-moda-collaboration-for-mbcIs The MODA Behavioral Health Incentive Program (BHIP) Bold and Reckless?
https://www.mentorresearch.org/moda-behavioral-contract-bold-or-recklessIs There Value in AI Audits of Psychotherapy Charting, Assessments and Treatments Plans?
https://www.mentorresearch.org/value-in-ai-auditing-in-psychotherapy-chartingMeasurement-Based Care: Enhancing and Undermining Mental Health Treatment Values.
https://www.mentorresearch.org/what-is-measurement-based-careManaged Behavioral Health: Measurement.
https://www.imhpa.org/managed-behavioral-health-measurementMedically Necessary and Reasonable Psychotherapy Services.
https://www.mentorresearch.org/medically-necessary-reasonableMODA Behavioral Health Incentive Program (BHIP): Bold And Reckless?
https://www.mentorresearch.org/moda-behavioral-contract-bold-or-recklessOrganization Advantages and Disadvantages of Being a Member of an IPA vs. a Group Practice.
https://www.mentorresearch.org/advantages-and-disadvantages-of-being-a-ipa-or-group-practiceOutcome Informed Care And Measurement-Based Care Adoption - Challenges in Oregon.
https://www.imhpa.org/measurement-based-care-adoption-challengesPatient Reported Outcomes & Performance Measures (PROM-PM).
https://www.mentorresearch.org/patient-reported-outcomes-progress-measuresPreventing The Problems Created by “Take it or leave it” Contracts In Mental and Behavioral Health Services?
https://www.mentorresearch.org/preventing-contract-of-adhesion-that-harm-public-healthHealthplan Fraud Perpetrated on Mental Health Providers: What is It and How to Prevent it.
https://www.mentorresearch.org/preventing-healthplan-fraudProblems and Arguments Against the Healthy Contracts Legislation
https://www.mentorresearch.org/arguments-against-the-healthy-contracts-billProvider Practice and Value-Based Payment Contracting for Psychotherapy Services: Requirements and Challenges.
https://www.mentorresearch.org/value-based-payments-psychotherapyPsychotherapy Treatment Plans & Progress Notes can Have Chilling Effects on Patients, Outcomes, Satisfaction and Dropout. https://www.imhpa.org/charting-chilling-effect-on-patients-outcomes
Qui Tam Action for Misrepresentation in Healthplan Contracts and Services.
https://www.mentorresearch.org/qui-tam-action-for-misrepresentation-in-healthplan-contracts-and-servicesReasonable Fears Providers Have About Entering into Measurement and Value-Based Contracts
https://www.mentorresearch.org/logical-fears-providers-about-value-based-contractsRisks, Reasons, and What to Do When Healthplan Measurement and Value-Based Payment Contracts are a Contract of Adhesion.
https://www.mentorresearch.org/risks-reasons-and-what-to-do-with-contracts-of-adhesionSigns of Bad Faith in Value-Based Payment Contracts for Mental and Behavioral Health Services Offered by Healthplans
https://www.mentorresearch.org/signs-of-a-bad-faith-valuebased-payment-contractSuccessful and Failed Case Studies of Measurement-Based Care and Value-Based Payment Contracts: Recommended Requirements
https://www.mentorresearch.org/successful-and-failed-valuebased-contractsThe Cost and Dangers of Giving Healthplans Your Patients’ Assessment Data.
https://www.imhpa.org/do-not-give-healthplan-your-patients-data-talking-pointsThe Independence of Healthplan Auditors Must Comport with Standards Set the U.S. Office of Inspector General U.S. Office of Inspector General (OIG).
https://www.mentorresearch.org/why-use-oig-standardsThe Pacific Source 26 Session Review Is a Utilization Management Audit using Hidden Requirements.
https://www.mentorresearch.org/pacific-source-26-appointments-auditThe Problem When Contracts Of Adhesion are Offered To Mental And Behavioral Health Providers
https://www.mentorresearch.org/problem-when-contracts-of-adhesion-are-offeredThe Toxic Impact of Venture Capital on Psychotherapy
https://www.amha-or.com/the-toxic-impact-of-venture-capital-on-psychotherapyTransition from Fee-for-Service Step-wise to Alternative Payment Contracts and then Value-Based Payment Contracts: The Good and the Bad.
https://www.mentorresearch.org/transforming-feeforservice-psychotherapy-to-valuebased-payment-contractUnderstanding and Overcoming ERISA Preemption Doctrine using Healthy Contracts.
https://www.mentorresearch.org/understanding-and-overcoming-erisa-using-healthy-contractsValue-Based Payment Fraud: When Heathplan Misrepresentation Turns into Conspiracy.
https://www.mentorresearch.org/preventing-healthplan-fraudWhat Can Happens if Voidable Provisions in Value-Based Contracts to Go Unchallenged?
https://www.mentorresearch.org/contracts-with-voidable-provisionsWhat is a Control Library?
https://www.mentorresearch.org/control-libraryWhat is Protected Health Information in Psychotherapy Practice?
https://www.mentorresearch.org/what-is-protected-health-informationWhat is the Value of Charting in Psychotherapy Practice?
https://www.mentorresearch.org/value-psychotherapy-chartingWhat Problems are Created When Healthplans Offer Providers “Take it or Leave it” contracts (contracts of adhesion)?
https://www.mentorresearch.org/take-or-leave-contract-in-healthcareWhat Can Certified Internal Auditors Do That Will Prevent Healthplans From “Gaming” Providers, Purchasers, and The Public?
https://www.mentorresearch.org/gaming-a-valuebased-contractWhat Can Happens If Unfair, Bad Faith, Ambiguous, Ill-Defined, Unethical, or Voidable Provisions In Fee-For-Service and Value-Based Contracts Go Unchallenged?
https://www.mentorresearch.org/contracts-with-voidable-provisionsWhy do Providers Avoid Conflicts With Healthplans?
https://www.mentorresearch.org/why-do-provider-avoid-conflicts-with-healthplansWhy is Hiring an Independent Certified Internal Auditor a Good Idea?
https://www.mentorresearch.org/why-hiring-an-independent-certified-internal-auditor-is-a-good-ideaWho are The Stakeholders When Contracting for Mental and Behavioral Health Services?
https://www.mentorresearch.org/who-are-stakeholders-in-contractingWill Healthplans Support the “Healthy Contracts” Legislation”?
https://www.mentorresearch.org/contract-gaming-reasons-why-value-based-contracts-will-failWill the Moda Measurement and Value-Based Payment Contract for Mental and Behavioral Services Fail? A Discussion Paper.
https://www.mentorresearch.org/why-the-moda-value-based-contract-will-almost-certainly-fail
DISCLAIMER and PURPOSE: This discussion document is intended for training, educational, and or research purposes only. The information contained herein is based on the data and perspectives available at the time of writing. It is subject to revision as new information and viewpoints emerge.
For more information see: https://www.mentorresearch.org/disclaimer-and-purpose