Public backlash buoys antimanaged-care laws

1998 state initiatives build on last year?s momentum.

By Rebecca A. Clay

Thanks to the continuing public backlash against managed care, 1998 promises to be an extremely busy year for state psychological associations intent on reforming a system that often seems to put profits before patients.

?The state psychological associations are facing a tremendous amount of activity in the area of proposed managed-care legislation,? says Shirley Higuchi, JD, assistant executive director of legal and regulatory affairs at APA. ?The state associations are witnessing hundreds of bills that relate solely to the public?s desire to see consumer protection measures in managed-care arrangements.?

Other issues that will continue to occupy many state associations include mental health parity and prescriptive-authority initiatives, says Higuchi.

Building on groundwork laid last year, psychologists at the state level are building coalitions, garnering support and amassing data in an effort to improve the provision of health care.

Managed-care legislation

?A juggernaut of activity? is how Michael Sullivan, PhD, describes the states? managed-care-related legislation. According to Sullivan, assistant executive director for state advocacy in APA?s Practice Directorate, last year 17 states passed laws to protect consumers enrolled in managed-care plans, and two others issued managed-care regulations. That brings the total number of states with comprehensive protections for managed-care enrollees to 32. Although details differ in each state, these new laws are basically designed to help put treatment decisions back in the hands of patients and their health-care providers.

More states are likely to join the line-up this year, predicts Sullivan. Massachusetts, for example, is one state that plans to tackle comprehensive reform. Years of piecemeal legislation have already brought consumers in the state such protections as the right to a 48-hour hospital stay for new mothers and a ban on ?gag? clauses in managed-care contracts, which typically forbid providers from informing patients about procedures not covered under their policies. The legislation now under consideration would result in reforms affecting just about every aspect of managed care. The state would even create a special office in the state public health department specifically to oversee the industry.

States haven?t let past defeats sway their determination. California, Illinois, Pennsylvania and Washington, for instance, plan to keep fighting for comprehensive consumer-protection legislation despite failures last year. And New Mexico is still hoping to persuade the state?s governor to reconsider a patient-protection act he vetoed last year.

But even if all 50 states passed strong consumer-protection laws, there would still be a problem, says Elizabeth A. Cullen, JD, MPA, director for legal and regulatory affairs in APA?s Practice Directorate. The 1974 federal Employee Retirement Income Security Act (ERISA) exempts self-insured plans from many of these state laws.

Noting that two-thirds of Americans are covered by these self-insured plans, Cullen calls the ERISA pre-emption of state laws ?the Achilles? heel of state legislative activity.?

?It?s because of ERISA pre-emption that self-insured plans are not forced to comply with recently enacted state laws,? says Cullen. ?To get to the self-insured plans, states need the ?teeth? of federal legislation.?

Parity initiatives

A movement is already afoot at the federal level to provide those teeth and ensure that there?s no pre-emption at the state level. The Patient Access to Responsible Care Act recently introduced by Rep. Charlie Norwood (R-Ga.) and Sen. Alfonse D?Amato (R-N.Y.), for example, would give consumers enrolled in private managed-care plans such protections as guaranteed access to providers outside their plans and the right to sue their health plans for harm resulting from treatment denials.

Congress has already punched one hole through ERISA. The parity law Congress passed last year, which requires annual and lifetime caps on coverage to be the same for mental health benefits as they are for physical health benefits, applies even to plans covered under ERISA.

Now states are looking to go beyond the federal law by extending parity beyond the issue of coverage caps, says Sullivan.

Vermont, for example, passed a comprehensive mental health parity law last year. Psychologists and other activists in the state drafted their bill early in the session, built a strong coalition, smoothed over dissensions and got solid numbers about the bill?s minimal financial impact from an APA-funded study by Coopers & Lybrand. Unlike some states, they stayed out of arguments about whether to extend parity only to patients with serious mental illnesses or to anyone with a mental health or substance-abuse problem.

?Vermont is definitely our model state,? says Sandra Beyer, APA?s director of field operations for government relations. ?And New Jersey may be this year?s Vermont.?

Lorryn Wahler, executive director of the New Jersey Psychological Association, agrees. The fact that she had just received her own preliminary report on the proposed bill?s financial impact from Coopers & Lybrand only fueled her optimism. ?The numbers look really good,? she says.

According to the study, the proposed New Jersey Mental Health and Substance Abuse Parity Bill would cost employers only $4.83 per member per month. Because employers would offset some of these potential cost increases, the real impact would likely be more on the lines of $1.93 per member.

Of course, New Jersey isn?t alone in planning a full-fledged parity initiative this year. Although just about every state is considering some kind of bill, Georgia, New York and Michigan are especially active in the parity movement.

Prescription privileges

Prescriptive authority is another priority area for psychologists at the state level and is receiving considerable support at the national level as well. APA?s Committee for the Advancement of Professional Practice (CAPP) is using its grants program to help fund states? efforts to pull together prescriptive-authority initiatives. The demand for financial assistance has been so great that CAPP has developed formal criteria for judging proposals.

?We foresee a time when the requests for help will outstrip our resources,? says CAPP chair Ronald E. Fox, PhD. ?We want to spend our resources in this area as wisely as we can.?

States focusing on prescription privileges are typically choosing one of two options, says Fox. Some, such as Georgia and Illinois, have started training psychologists in psychopharmacology in the belief that doing so will give them extra leverage during the legislative battle for actual prescription privileges. Other states believe it makes more sense to pass legislation first, then train psychologists to meet the legal requirements for authorization to prescribe.

The California Psychological Association (CPA) belongs to the latter camp. The association introduced its first prescriptive-authority bill in 1995, only to see it die in a committee with a chair hostile to any bills extending nonphysicians? scope of practice.

In contrast, the committee?s current chair authored the prescriptive-authority bill this time around. The bill would basically allow licensed psychologists with 300 hours of training in psycho-pharmacology and related areas to prescribe medication, explains Charles A. Faltz, PhD, CPA?s director of professional affairs.

?In their lobbying efforts, our opponents were comparing our additional amount of training to the entirety of medical school, without considering the entirety of doctoral-level psychology training,? says Faltz, noting that recent amendments have clarified this point.

?We didn?t want new legislators saying, ?Gee, physicians have to go to medical school, but psychologists are saying that with just 300 hours of training they?re going to start prescribing.??

So far the CPA has taken a firm stand against any compromises, such as agreeing to supervision by physicians or to a limited formulary that would allow them to prescribe only drugs on a list provided by the legislature or other administrative body. That stance may make the battle more difficult, Faltz admits. CPA has received support from CAPP as well as the California School of Professional Psychology.

Like other politically active psychologists, he says, ?Having a real partnership can?t be overestimated.?

Rebecca A. Clay is a writer in Washington, D.C.