Proposed Behavioral Health Updates in Medicare Advantage and ACA Marketplace Plans Could Lead to Enhanced Access and Opportunities

Investors and practice management companies focused on behavioral health should note two recent proposed rules that, if finalized, should increase access to behavioral health services for beneficiaries enrolled in Medicare Advantage (MA) health plans and Patient Protection and Affordable Care Act (ACA) marketplace plans. Specifically, on December 21, 2022, the U.S. Department of Health and Human Services (HHS) issued the Notice of Benefit and Payment Parameters for 2024 Proposed Rule (ACA Marketplace Proposed Rule), and on December 27, 2022, the Centers for Medicare & Medicaid Services (CMS) issued the Contract Year 2024 Policy and Technical Changes to the Medicare Advantage Program, Medicare Prescription Drug Benefit Program, Medicare Cost Plan Program Proposed Rule (MA Proposed Rule).

MA Proposed Rule

In the MA Proposed Rule, CMS has proposed several ways to expand access to behavioral health services. For example:

• CMS proposes to add behavioral health services to its existing access to services standards, thereby requiring MA organizations to maintain and monitor an adequate network of behavioral health providers, including clinical psychologists, licensed clinical social workers, and prescribers of medication for opioid use disorders.

• CMS proposes to require MA organizations to extend the same appointment wait time standards for primary care services to appointment wait time standards for behavioral health services (including both mental health and substance use disorder (SUD) services).

• The MA Proposed Rule also proposes that MA plans comply with stringent enrollee notification requirements when an organization terminates a behavioral health provider network participation contract.

• Additionally, CMS proposes to clarify that some behavioral health conditions qualify as “emergency medical conditions,” for which MA organizations must reimburse a provider for treatment without regard to the emergency care provider’s contractual relationship with the MA organization or whether the enrollee received a prior authorization.

• The MA Proposed Rule would require MA organizations to maintain policies and procedures to ensure that enrollees who receive behavioral health services receive coordinated care. Such policies and procedures would include programs to coordinate behavioral health services with community and social services, procedures to ensure that the MA organization and its provider network have the information required for effective and continuous patient care and quality review, and procedures to ensure that enrollees are taught appropriate self-care and informed of healthcare needs that require follow-up care.

ACA Marketplace Proposed Rule

The ACA Marketplace Proposed Rule also takes steps to increase access to behavioral health services. For example, HHS proposes to designate mental health facilities and SUD treatment centers as essential community providers (ECPs). This would require medical qualified health plan (QHP) issuers to offer a contract in good faith to at least one available mental health facility and one available SUD treatment center that qualify as ECPs in each county of the plan’s service area. CMS also proposes to modify the network adequacy requirements so that all plans certified as QHPs offer sufficient choice of providers in compliance with a consistent set of criteria for easier comparability across all QHPs. Therefore, if finalized, the proposed changes would better ensure that ACA marketplace plan beneficiaries have access to mental health facilities and SUD treatment centers.

Comment Period

The ACA Marketplace Proposed Rule was published in the Federal Register on December 21, and members of the public are welcome to submit comments by January 30, 2023. The MA Proposed Rule was published in the Federal Register on December 27, and comments are welcomed until February 13, 2023.