Request for Waiver from Pennsylvania Regulation Mandating a Minimum of 15 minutes for a Medication Visit in an Outpatient Mental Health Clinic

I sent copies of these arguments to the Inspectors General of the US and of Pennsylvania, and to the local US Attorney, requesting investigation into and potential prosecution of  Pennsylvania for Medicaid abuse.

RE: Waiver of Standards Request under your § 5200.48 from Your Regulation § 1153.52 (c) (1). Payment conditions for various services. “Psychiatric clinic medication visits shall be a minimum duration of 15 minutes.”

Dear Madam:
I am a Board certified adult and child psychiatrist in practice in several counties of Pennsylvania. I request to be exempted from your regulation referenced above in all my practice locations in Pennsylvania. I request to be completely exempted from the above regulation because 1) it violates the laws of Pennsylvania and of the United States, including several Supreme Court decisions; 2) it is Medicaid abuse; 3) it is unethical and represents a misunderstanding of the nature of a medication visit; 4) it hurts the interest of my patients, their families, and of the public; 5) it is pretextual (a phony and lying use of the law), and damaging policy.

Background:
Pennsylvania Medicaid now requires that all outpatient mental health clinic visits last 15 minutes. If one lasts 14.999 minutes, payment must be denied. This is an across the board, non-individualized requirement that has had adverse effect on clinical care. The real intent is to limit access to care by reducing the number of scheduled appointments in the time of the provider.

Violations of Law:
1) Affordable Care Act (ACA). Unless you are requiring that all specialties have 15 minute visits, your rule violates the spirit and the letter of the Mental Health Parity Provision of the ACA. (Section 1312,  (j) APPLICABILITY  OF MENTAL HEALTH PARITY .—Section 2726 of the Public Health Service Act shall apply to qualified health plans in the same manner and to the same extent as such section applies to health insurance issuers and group health plans.)  Here is the guidance from the CMS website, “... the law requires a general equivalence in the way MH/SUD and medical/surgical benefits are treated with respect to annual and lifetime dollar limits, financial requirements and treatment limitations, ...” and, “ the financial requirements (e.g., deductibles and co-payments) and treatment limitations (e.g., number of visits or days of coverage) that apply to MH/SUD benefits must be no more restrictive than the predominant financial requirements or treatment limitations that apply to substantially all medical/surgical benefits (this is referred to as the “substantially all/predominant test”). This test is discussed in greater detail in the MHPAEA regulation (linked below) and the summary of the MHPAEA regulation found below.”  (At https://www.gpo.gov/fdsys/pkg/FR-2013-11-13/pdf/2013-27086.pdf  ). Time limitations decrease the number of visits that can be scheduled, in violation of parity.

2) Medicaid Abuse. The Medicaid program considers it fraud to pay for procedures that are not medically necessary. A fifteen minute duration is unnecessary in patients with no complaint, and no change in status or in prescription. Imagine a mass, non-individualized procedure. For example, a chest surgeon stents everyone with chest pain. Some have reflux, some rib arthritis. That surgeon is going to jail for Medicaid fraud. Some people need acid medication, others need anti-inflammatory for a rib muscle strain. It is required that the doctor act like a doctor and individualize care, and not carry out the same procedure on everyone coming to him. The fifteen minute requirement is a massive prescription, and represents Medicaid abuse as defined in the regulation. ( 42 CFR 455.2: Abuse means provider practices that are inconsistent with sound fiscal, business, or medical practices, and result in an unnecessary cost to the Medicaid program, or in reimbursement for services that are not medically necessary or that fail to meet professionally recognized standards for health care.)

3) Civil Rights Act of 1964. The rolls of Medicaid have more members of racial and ethnic minorities than the general population. That over-representation  is sufficient to demonstrate  racial discrimination according to the Supreme Court (Texas Dep't of Hous, & Cmity Affairs v. Inclusive Communities Project, Inc. 576 U.S. ___ (2015). It is self evident that minority members are being denied access to care, and that whites would never be restricted in their access that way.



4) American with Disabilities Act Amendment Act of 2008 (ADAAA). The ADA requires that all government services be made available and accessible to people with disabilities. The ADAAA expanded the covered disabilities to mental health conditions (but not to substance abuse disorders). Obstruction of access to medication management violates this law. This regulation is an obstruction to seeing more patients for shorter periods.

5) The Undue Burden  doctrine of Carey v. Population Services International, 431 U.S. 678 (1977). The Court held that a state may not place an undue burden on people seeking contraception so they may have fun having worry free sex. These Pennsylvania requirements place an undue and unconstitutional burden on people seeking to treat serious mental problems. I may stand in for my patients in future litigation.

6) Pennsylvania Administrative Law Act. No psychiatrist I know received notice of the new requirements. I cannot find a comment listing, nor a transcript of hearings held prior to adoption of this regulation.

7) Violation of the Medical Practice Act of Pennsylvania. (§ 16.61 (a) (6). Unprofessional and immoral conduct.  Practicing the healing arts fraudulently, or with reckless indifference to the interests of a patient on a particular occasion, or with negligence on repeated occasions. ) The practice of mass applied care, of non-individualized care violates the fraud and negligence provisions of that section.

8) The lengthened visit time requirement did not come with any increase in fees. It therefore represents a regulatory taking in violation of Fifth Amendment Procedural Process rights.

Unethical and a Misunderstanding

1) Philosophically, a medication visit should address one complaint and should result in one change. If more than one change is made, and a benefit or damage results, it is hard to know which change caused either.

2) The idea of a mass prescription of a procedure to all patients is unethical, not individualized. Unethical care violates professional standards of due care.

Adverse to Interests of Patients, Families, and the Public:
1) Interference with the doctor patient relationship. One result has been that patients discharged from inpatient care have had to wait several months for their first outpatient visit instead of several weeks. During that time, either they run out of medication, or must have their medications renewed without first being seen and individually evaluated. Almost by definition, inpatients have engaged in dangerous acts against themselves or against others. It is a matter of time before these delays in follow up care will result in serious injury or death to patient, family or the police. At best, the prolonged time to follow up will result in greater expense and impairment from high rates of re-hospitalizations

2) Attack on the black and Hispanic family. If these children are dangerous to the rest of the family, they will require out of home placement. In a training on child abuse, your department has admitted to a disparate impact on out of home placement of race.  This regulation will worsen the disparity.

3) Inpatients and patients in partial hospitalization programs (attending from 9 AM to 3 PM, daily) have more treatment resistant problems, are more impaired, dangerous, distressed, difficult to manage, subject to far greater social stresses. Their symptoms are multi-factorial, including trauma, substance abuse, deprived upbringing, and reluctance to accept treatment. Despite neediness that may be 10 times greater than that of working outpatients, there is no minimum time for a brief medication visit for them. This proves the pretextual, phony, unnecessary nature of the 15 minute minimum visit rule.

Damaging and Dangerous Policy:
1) As a result of this policy, the number of people scheduled to be seen during any period of time, such as a day, has marked dropped. As a direct result of this irresponsible regulation, the time between discharge from a mental hospital and first follow up visit has gone from 4 weeks to 4 months. Inpatient and partial hospitalization doctors refuse to write prescriptions for more than a month’s supply. During this 4 months’ time the clinician has the choice of allowing the patient to run out of medication and to fully relapse, or to renew the medications for someone he not examined, yet. This is untenable. It is a matter of time before a serious injury or death results from these long waits.

2) Pennsylvania is suborning garbage science and quackery. There is no evidence that following the 15 minutes requirements improves care. It is in the interest of doctor and of patient to provide information on the treatment. Doctors who fail to do so get many phone calls about side effects. Patients forgetting the discussion have access to the internet. It provides specialist level information for anyone interested.

3) Doctors have a right to dignity. These denials and the frustrating obstacles placed by the state of Pennsylvania are humiliating to physicians. Uneducated clerks are cancelling their orders as if they were a joke.

4) There will be fewer visits per hour under this regulation. There has been no raise in fees. That implies the favored and privileged insurance companies will profit from the obstruction of clinical care.

5) These delays, obstructions, extended visits,  and deterrence of physicians from prescribing these medications to their mental patients, result in increased profits of the people doing the denials of payment. They represent a serious conflict of interest and unjust enrichment of politically connected insurance companies. In future litigation, discovery will seek to reveal collusions, and will result in referrals for criminal prosecution.