HHS Proposed Changes to Affordable Care Act | Section 1557 on Non-Discrimination | August, 2019

The Clinical Social Work Association strongly opposes the DHHS proposed Section 1557 rule change.  This revision would open the door to discrimination by healthcare providers and by insurers offering Marketplace plans. Discrimination and denying access to health care in our public health care system is unethical and harmful.

Ethical Treatment vs Prejudice

CSWA represents many of the 250,000 Licensed Clinical Social Workers (LCSWs) who provide mental health diagnosis, treatment, and other health related services through in the public and private sectors.  We adhere to a code of ethics that prohibits discrimination; indeed, a social worker would never turn away someone seeking health or mental health care. It is self-evident that all health professions practice within codes of ethics that prohibit discrimination and do no harm.

The DHHS proposed changes are in stark contrast to ethical practice.   Currently, Section 1557 regulations standardize the protections and processes that prohibit discrimination in health care for all vulnerable populations.  Further, current regulations recognize that intersectional discrimination can affect people who belong to multiple protected classes; for example, discrimination against an African-American woman could be based on race, sex, or both.  While DHHS maintains that it “is committed to ensuring the civil rights of all individuals who access or seek to access health programs or activities of covered entities,” the proposed changes, if finalized, would substantially scale back current protections against discriminatory practices, and create a climate friendly toward providers inclined to deny care based on stereotyping and generalized prejudice. 

Proposed Changes for Insurance Carriers

With regard to changes for insurance carriers, CSWA notes with dismay that the DHHS proposal would provide leeway for insurers to shape benefit designs with potential to disadvantaged vulnerable groups often targeted for discrimination by race, color, national origin, sex, age, and/or disability. While these rules would only apply to Marketplace plans, the change would have significant impact on the lives of the 20 million people covered by these plans and could be adopted by private plans. 

It is also of significant concern to CSWA that DHHS also wants to eliminate basic consumer protections by ending grievance procedure requirements and restricting the right to challenge violations of the right to access care in court.

Disability Discrimination

As to the question of relaxing protections currently provided to individuals with disabilities, we cannot see how the proposed exemptions are justified.  Surely an increase in the “undue hardship” exemptions for federally covered entities would seriously curtail access to healthcare for individuals who in their daily lives already face undue hardships due to their disabling conditions.

Recommendation 

CSWA urges that DHHS keep Section 1557 in place and protect the rights of vulnerable and/or disabled enrollees to health care through the Marketplace plans. To open the door for healthcare providers to refuse to provide healthcare services to certain groups and for insurers to develop policies that disadvantage such groups is unethical and would destroy civil and disability rights protections to specific patient populations.  

Thank you for this opportunity to provide input on the DHHS proposal to change non-discrimination regulations under ACA Section 1557.  We are available to respond to any questions.  Please contact us.

Dear CSWA Members,

There was a recent article in the Los Angeles Times about the serious problem at the University of Southern California School of Social Work (USC) which started their online MSW program in 2009.  In 2013 CSWA wrote a position paper about the ways we thought this online program could undermine the interpersonal understanding and ability to connect to others that are necessary components of becoming a competent clinical social worker. You can find this paper on the website at https://clinicalsocialwork.wildapricot.org/Resources/Documents/CSWA%20-%20Position%20Paper%20-%20Online%20MSW%20Programs%20-%209-13-1.pdf .

Our focus was on the clinical skills that would be lost if there is not the direct contact with professors, supervisors, and patients that many online MSW programs minimize or eliminate. As these programs have proliferated, there are two other issues which we touched on in our paper – the cost of these programs, around $90,000 at USC, and the way that the marketing of this program was done by a for-profit marketing firm, 2U, which had to meet certain quotas according to their contract with USC.

Over the past 6 years, the problems with the way that the USC School of Social Work has evolved, and especially the way that 2U allowed students to enter the program who were not qualified to do so, has created a maelstrom of problems.  In the past week, two articles have been written about these problems in the Los Angeles Times, https://www.latimes.com/local/lanow/la-me-usc-social-work-20190606-story.html,and the New York Times,https://www.nytimes.com/2019/06/03/upshot/student-debt-big-culprit-graduate-school.html.

CSWA encourages its members to educate themselves about the way that clinical social work is being endangered by the general lack of adequate training in online programs, as well as the stifling debt that many students accumulate. While some students think that they have gotten the training they need (see comments in these articles), U.S.News and World Report gave USC School of Social Work a rating of the 25^thbest school in 2018, down from its usual place in the top ten schools. 

The Council of Social Work Education, which accredits all MSW programs, has endorsed the use of online MSW programs without reservation,if they conform to the coursework standards of brick and mortar programs. This was a mistake in the opinion of CSWA for the reasons stated above and in our Paper.We encourage members to let their schools know, as alumnae, that the possible diminished training of MSWs using online courses, and the staggering debt accrued, are bad for our profession and bad for the well-being of future clinical social workers. 

The majority of schools of social work now have online MSW programs as an option.  It is time to take a stand on the harm this may do to the clinical social work profession.

Laura Groshong, LICSW, Director, Policy and Practice
Clinical Social Work Association
The National Voice of Clinical Social Work
Strengthening IDENTITY | Preserving INTEGRITY | Advocating PARITY

Dear CSWA Affiliated Society Members,

There is a move in New York state to change the requirements for mental health clinicians, including LCSW-Rs. For those of you who are not familiar with the clinical social work license in New York, these requirements have been much more rigorous than in most states, with 5 years of supervised post-MSW experience. Only psychiatrists, psychologists, and LCSW-Rs are required to be covered by insurance and allowed to diagnose.

There is currently a move by other Master's mental health groups who so not have the same standards as LCSW-Rs and are not required to be covered by insurance to give these practitioners the same insurance coverage and the right to diagnose. The New York State Society for Clinical Social Work (NYSSCSW), an affiliate of CSWA, is fighting this effort, as well as an attempt to lower clinical social work standards.

I am bringing this to the attention of all CSWA members for two reasons.  There may be LCSW-Rs who are licensed in New York but do not live there, are not members of NYSSCSW, but are members of CSWA.  We want all New York CSWA members to support the opposition to the proposed changes.  Please see below for more details on how to oppose the changes to Article 163.  The second reason is that this kind of attempt to undermine strong clinical social work licensure laws can always be a threat.  Texas just successfully stopped an effort to undermine their clinical social work law. We must be vigilant in protecting our licensure laws.

Keep track of your licensure laws and protect them.  For all of you who are among the almost 30,000 clinical social workers in New York, make sure to let your voice be heard using the message from Marsha Wineburgh, DSW, LCSW-R, NYSSCSW Legislative Chair AS SOON AS POSSIBLE.

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For those LCSW-Rs in New York who called your legislators, thank you.

For those of you who haven't yet, read the following alert and please please please call.

Marsha Wineburgh, DSW, LCSW-R, NYSSCSW Legislative Chair

For the last several years, a bill to mandate insurance reimbursement for mental health services provided by individuals licensed under Article 163 of the Education Law - Licensed Mental Health Counselors, Licensed Marriage and Family Therapists, Licensed Creative Arts Therapists and Licensed Psychoanalysts has been introduced into both houses. While, on  the surface,  this idea is not unreasonable, there is a huge clinical experience discrepancy and as such, we, along with Psychiatrists and Psychologists have opposed the measure.

Currently, the only clinicians that insurance is REQUIRED to reimburse for mental health services are a Psychiatrist (MD), Psychologist (PhD) and an LCSW who has an additional three years of supervised experience in the provision of diagnosis and psychotherapy in addition to the three years required for licensure as an LCSW  (known as the "R" provision).   On the other hand, Article 163 licensees postgraduate training requires only a fraction of such experience.  Nor can they diagnose a serious mental illness or treat without referral to a physician. Requiring  insurance to reimburse such providers but NOT LCSW's, is unacceptable and lowers  competence for private practice.  

Despite this glaring inequity, the bills are on the move. The Assembly version is on the Codes Agenda this week.  As such, We have STRONGLY SUGGESTED amendments to STRIKE PROVISIONS REQUIRING THE THREE ADDITIONAL YEARS OF EXPERIENCE FOR REIMBURSEMENT for LCSWs, but thus far, they have been ignored. We must protect our profession! There are only three weeks left of this legislative session and this battle will require teamwork from now until June 19th. It will require constant internal legislative work and a loud constituent outcry! 

We have an easy three-step process of engagement:

1. If you don't know who your Senate or Assembly Member is, log onto...https://www.elections.ny.gov/district-map/district-map.html -- Simply fill in your address and click on Senate and Assembly to reveal your members.
2. Take five minutes out of your day to CALL YOUR SENATE AND ASSEMBLY MEMBER using the script provided below. The Senate Switchboard # is 518-455-2800. The Assembly Switchboard is 518-455-4100  At first glance, staffers may tell you the current law already includes the LCSW - you must tell them to keep reading to the next line where it requires such LCSWs to have an additional three years of experience as this is where the egregious discrepancy between providers, exists. 
3. When you are done...let your organization know you've made your call (mwineburgh@gmail.com) and share this alert with as many Clinical Social Workers and those working toward LCSW licensure.

Please utilize the following Script:

Hello. My name is ----- and I am a constituent who is VERY concerned about Assembly Bill 670 (Bronson) and Senate Bill 6212 (Senator Kennedy). While the bills are not yet identical, we expect they soon will be. Each of them  will require insurance providers to reimburse for mental health services provided by individuals licensed under Article 163 of the Education Law - Licensed Mental Health Counselors, Licensed Marriage and Family Therapists, Licensed Creative Arts Therapists and Licensed Psychoanalysts BUT NOT LCSWs who have MUCH HIGHER EXPERIENCE AND EDUCATION REQUIREMENTS. I am asking you as a constituent to honor my education and experience and protect my livelihood by amending the bill by striking subparagraph  D, which requires LCSWs to have an additional three years of experience in order to receive reimbursement. While the LCSW-R is the highest level licensure, an LCSW without the additional requirements is by authority of statute, already authorized and qualified to independently provide diagnosis, assessment based treatment planning and psychotherapy and as such, should be reimbursed for such work!

Much excitement has been generated in the mental health community since “the UBH decision” – that is, the decision in the US District Court in Northern California case of Wit et al versus United Behavioral Health, filed March 5, 2019 - found UBH liable with respect to the denials of benefits claims.  The clarity and detail of Chief Magistrate Judge Joseph Spero’s 106-page Findings of Fact and Conclusions has provided us with an extraordinary resource for moving forward. 

 

At the same time, there are clear limits to this big win: this is not the end of insurance denials and parity violations.  UBH will surely be appealing the judgment, and other judges may or may not uphold the present ruling. Further, the insurance arena is complex.  Each state has its own insurance regulations, and each type of plan (ERISA, Medicare, Medicaid, Exchange Plans, or private) has a different source/s of oversight.  (CSWA has posted information to clarify the differences in the Clinical Practices section of our website.)

 

How, then, can we use this decision effectively to affect access to mental health and substance use treatment?  At the individual level, if your client is being denied care that you deem critical, the detailed court document provides a list of “generally accepted standards of care” that may prove very helpful in your discussion with the insurance representative. 

 

Judge Spero spent considerable time during the hearing determining what is meant by generally accepted standards of care.  Many sources exist, and CSWA will post the judge’s summary of these on our website. The standards listed below were agreed upon by both plaintiffs and UBH; the wording is taken from the court document itself:

         

• effective treatment requires treatment of the individual’s underlying condition and is not limited to alleviation of the individual’s current symptoms 
• effective treatment requires treatment of co-occurring behavioral health disorders and/or medical conditions in a coordinated manner that considers the interactions of the disorders and conditions and their implications for determining the appropriate level of care
• patients should receive treatment for mental health and substance use disorders at the least intensive and restrictive level of care that is safe and effective
• when there is ambiguity as to the appropriate level of care, the practitioner should err on the side of caution by placing the patient in a higher level of care  
• effective treatment of mental health and substance use disorders includes services needed to maintain functioning or prevent deterioration
• appropriate duration of treatment for behavioral health disorders is based on the individual needs of the patient; there is no specific limit on the duration of such treatment
• unique needs of children and adolescents must be taken into account when making level of care decisions involving their treatment for mental health or substance use disorders
• determination of the appropriate level of care for patients with mental health and/or substance use disorders should be made on the basis of a multidimensional assessment that takes into account a wide variety of information about the patient.

The nine plaintiffs whose cases were reviewed during the ten-day bench trial included denials of residential treatment for substance use disorder, for rehab, for mental health treatment, and, in two cases, for teenagers with substance issues, as well as denials of outpatient mental health treatment two to three times per week, and Intensive Outpatient Treatment (IOP) for a minor with SUD. The Judge provided detail for each case considered, noting the discrepancy between the UBH stated standard of care and the actual guidelines that the reviewers was expected to follow.  His descriptive language throughout, when referring to the UBH testimony, tended toward generous use of the words “evasive” “even deceptive” and “not credible”.  

Given the widespread interest in this case, LCSWs may want to be assertive in appealing denials of care, especially where there is any failure to meet the standards.  As you present your argument - even if you are dealing with a different insurer and a different type of plan - a mention of the UBH case will likely have an effect on the discussion.  (The CSWA website has an Appeals template in the Members-only section; the generally accepted standards of care list will also be there, as well as a description of the five types of insurance plans.)

Another important avenue for LCSWs may be their state insurance laws/regulations and then perhaps their legislators. The plaintiffs came from different states, and three of these states – Illinois, Connecticut and Rhode Island - have legislation mandating use of the American Society of Addiction Medicine (ASAM) Standards in their insurance laws/regulations; it was not difficult to demonstrate that the UBH denials violated the state laws/regulations.  A fourth state, Texas, has Department of Insurance criteria for standards of care; this proved equally effective.

Summary

The UBH decision is a good step toward making mental health and substance use parity a reality but is far from the end of making this happen.  For now, we can speak out strongly on standards of care, ensure that standards in the client’s policy is being respected in any review process, and feel comfortable noting the UBH loss in court based on violation of these standards, as a basis for appealing a denial of care.  As for the next steps, LCSWs should look to state laws/regulations governing insurance, including any standards of care or enforcement of parity.  (Such information may be online at the website of the Office of the Insurance Commissioner).  Insurance is a state-based system and it may be possible to make a legislative proposal about mental health and substance use that would appeal to your state legislators. Watch for more information from CSWA on this topic soon.

 

Footnote:     Case 3:14-cv-02346-JCS Document 18 (Findings of Fact and Conclusions of Law).  Heard and ordered UBH liable 2/28.    Filed 3/05/19. 106 pages.  United States District Court, Northern District of California..   

Dear CSWA Members, 

With all the other issues that have been demanding our attention this election season,the effort by the administration to detain immigrants indefinitely flew under the radar. 

The administration has proposed new regulations that, among other things, would expand its powers to detain immigrant families indefinitely, as compared to thecurrent situation where there is a limit to how long they can detain minors.  The proposed rule,Apprehension,Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, would allow the federal government to open its own detention centers with unlimited detention.  Currently, these centers must be licensed by states with state oversight. As you know, the administration has been trying to implement this policy by ignoring the states and keeps losing in court.  That is why this attempt to bring the policy under Federal oversight is being made. 

PLEASE send the message below to the Regulations.gov website at https://www.regulations.gov/comment?D=ICEB-2018-0002-0001TODAY by 5 pm EST.

 “I am a clinical social worker and a member of the Clinical Social Work Association.  Please do not pass the proposed rule 2018-19052 which would allow immigrants to beheld indefinitely.  This is very harmful to children and adults.  The states need the freedom to continue managing this complex situation.”

Thanks for your help and apologies for the late notice.

I am pleased to send you the latest installment of “The Aware Advocate,” a quarterly report on legislative activity and advocacy being tracked or conducted by the Clinical Social Work Association This is not meant to be a complete summary of all activities, but a review of what I see as current highlights.  

***SPECIAL ALERT – Global Tech Review for Medicare***

       The Global Tech review identified 10,000 LCSWs who are Medicare providers as providing more psychotherapy than 50% of the LCSWs in their state or nationally.  The review also compared the psychotherapy done by LCSWs to the psychotherapy done by psychiatrists.  CSWA has written a letter to CMS Administrator Seema Verma rebutting these criteria along with a detailed description of psychotherapy as practiced by LCSWs.  To find these items, go to the CSWA website at www.clinicalsocialworkassociation.org

The Big Picture – Federal News Affecting LCSWs 

Proposed Medicare Rule

CSWA just sent in comments on the proposed Medicare rule to charge the same amount for an office visit, no matter what condition is being treated. CMS-1693-P, part of the FY 2019 Physician Fee Schedule, Medicare Shared Savings Program, Quality Payment Program, and Medicaid Promoting Interoperability Program, could seriously limit the access of Medicare beneficiaries to needed psychotherapy. This rule could have a chilling effect on the different psychotherapy codes available to LCSWs, which have already been rejected by some insurers (90837).  Many other medical groups have send in comments as well.  The comments will be reviewed in the next month and a decision about implementing this rule will be made.  Stay tuned.

Tricare and Humana

Ever since Humana was named as the administrator for veterans on the eastern side of the country, there have been problems with the processing of claims; difficulty contacting a liaison at Humana; lowered reimbursement; higher copays; and a definition of clinical social work that is quite unclear, i.e., no distinction between casework and psychotherapy.  CSWA, led by Government Relations member Susan Horne-Quantannens, LCSW, has been working with the Health Defense Agency to solve the myriad problems LCSWs are facing in this important realm of clinical social work practice.

On the Home Front – Legislative Action in the States        

Washington State   

There are three areas of activity that will positively affect LICSW practice if enacted in Washington State. The first is the long-sought ability to provide psychotherapy for injured workers who are struggling with emotional distress.  A Task Force has been established by Labor and Industries to begin a pilot project allowing LICSWs to provide these services beginning in 2019. 

Additionally, there is a project to allow LICSWs to perform mental health evaluations on those incarcerated who may have mental health problems.  These people have waited months to get an evaluation about whether they are competent to stand trial, represent themselves, and whether they can be treated in the community.  More clinicians are needed to speed up the evaluations.  It appears that Department of Social and Health Services has a plan to include Masters clinicians to do evaluations.  Details can be found at https://www.disabilityrightswa.org/cases/trueblood/#anchor 

Finally, there is a lawsuit that has been brewing in which an LICSW and an LMHC sued Group Health/Kaiser for refusing to cover psychotherapy for out-of-network providers in an ERISA plan.  This was heard in the 9^th circuit after four years of wending its way through state and federal courts and sent back to state court where it has a much better chance of a positive result.  If you want to read a summary of the case, go to Law360 at https://www.law360.com/articles/1079535/erisa-doesn-t-bump-providers-state-law-suit-9th-circ-says  Congratulations to member Karen Hansen, LICSW, who is one of the plaintiffs.

I hope anyone with knowledge of legislative matters that affect LICSWs in your state will let me know so I can include them in this quarterly report.

 

Now – what I know you’ve been waiting for – your next Licensure Tip:

     Record Retention – since HIPAA passed in 2003, there has been increasing confusion about how long clinicians should keep records following the termination of treatment.  Each state has its own laws about record retention as do Medicare and HIPAA.  Currently Medicare requires that records be retained for 5 years; the HIPAA Notice of Privacy Practices (NPP) for 6 years; clinical social work state laws and rules require retention anywhere from 3 to 8 years.  Be sure to check your state to make sure you are in compliance on record retention for clinical social workers.  In addition, the prudent clinician will make sure that record disposal is in compliance with HIPAA requirements, meaning that paper records are shredded to microscopic bits and that discarded computer hard drives are totally cleaned.

Here is your reminder that there are over 700 events this Saturday to promote returning the over 2300 immigrant children separated from their parents.  Find the one near you at https://www.familiesbelongtogether.org/ CSWA encourages all members to support this crucial effort.  Keep in mind some advocacy agencies are suggesting that protests NOT occur at the shelters where children are being housed.  The  police need to be called for crowd control, prevent attorneys and others from meeting with the children, and further traumatize the children.

Here is a summary of what else you can do to support getting families reunited:

Call the following numbers with the message below:

DHS main number: 202-282-8000

DHS Public Comment line: 202-282-8495

HHS main number: 877-696-6775

HHS Office of the Secretary: 202-690-7000

“I am a member of the Clinical Social Work Association and live in [your state]. Please make all efforts to get immigrant children reunited with their parents immediately and give them all due process in determining whether they are eligible to stay in the US.”

Now that the President has agreed to reunite families, we must keep up the pressure on the Administration to follow through.  It is not too late to call your legislators with the above message as well.

As always, let me know when you have made your calls.

Laura Groshong, LICSW, Director, Policy and Practice

Clinical Social Work Association
The National Voice of Clinical Social Work
Strengthening IDENTITY | Preserving INTEGRITY | Advocating PARITY

As the chaos of how immigrant children and their parents will get reunited continues, there is an ongoing need to plan to attend the rallies that will support this goal.  Five major humanitarian advocacy organizations - ACLU, MoveOn, Human Rights Campaign, National Domestic Workers Alliance, and The Leadership Conference -  are planning 130 rallies around the country next Saturday, June 30 to stop the damage being done to immigrant families.  To find the rallies in your area go to https://act.moveon.org/event/families-belong-together/search/?source=ndwa .

NEW INCARCERATION PLAN: There is a new plan for immigrant children and their parents to be housed at military bases in Texas (https://www.military.com/daily-news/2018/06/25/pentagon-says-2-military-bases-house-immigrants.html) .  It appears that there will also be a renewed effort to separate children and parents, a plan that was temporarily stopped due to the massive opposition over the past two weeks.  It is crucial to continue to let our voices be heard.

ACTION: Please send the following message to ALL MEMBERS of the House or Senate ASAP (emails and phone numbers can be found at https://www.congress.gov/members?q={%22congress%22%3A%22115%22}):  “I am a member of the Clinical Social Work Association and a constituent.  Please oppose the practice of housing of immigrant children and parents on military bases. It appears that there is still a strong effort to keep immigrant children separated from parents in such settings, causing trauma to them. Tell ORR and DHHS to stop the cruel methods being used on immigrant children and their parents now.”

As always, let me know when you have sent your messages.

Laura Groshong, LICSW, Director, Policy and Practice

Clinical Social Work Association
The National Voice of Clinical Social Work
Strengthening IDENTITY | Preserving INTEGRITY | Advocating PARITY

As the chaos of how immigrant children and their parents will get reunited continues, there is an ongoing need to plan to attend the rallies that will support this goal.  Five major humanitarian advocacy organizations - ACLU, MoveOn, Human Rights Campaign, National Domestic Workers Alliance, and The Leadership Conference -  are planning 130 rallies around the country next Saturday, June 30 to stop the damage being done to immigrant families.  To find the rallies in your area go to https://act.moveon.org/event/families-belong-together/search/?source=ndwa .

NEW INCARCERATION PLAN: There is a new plan for immigrant children and their parents to be housed at military bases in Texas (https://www.military.com/daily-news/2018/06/25/pentagon-says-2-military-bases-house-immigrants.html) .  It appears that there will also be a renewed effort to separate children and parents, a plan that was temporarily stopped due to the massive opposition over the past two weeks.  It is crucial to continue to let our voices be heard.

ACTION: Please send the following message to ALL MEMBERS of the House or Senate ASAP (emails and phone numbers can be found at https://www.congress.gov/members?q={%22congress%22%3A%22115%22}):  “I am a member of the Clinical Social Work Association and a constituent.  Please oppose the practice of housing of immigrant children and parents on military bases. It appears that there is still a strong effort to keep immigrant children separated from parents in such settings, causing trauma to them. Tell ORR and DHHS to stop the cruel methods being used on immigrant children and their parents now.”

As always, let me know when you have sent your messages.

Laura Groshong, LICSW, Director, Policy and Practice

Clinical Social Work Association
The National Voice of Clinical Social Work
Strengthening IDENTITY | Preserving INTEGRITY | Advocating PARITY

CSWA is so committed to stopping the cruel immigrant policies of this administration toward children and families that we are going to send an action item a day for the next two weeks. If the damaging policies are still in place, we will continue. Some posts are from other groups, some are from our Government Relations Committee. Do your part and follow through with calls and emails.

As always, let me know when you have made your call or send your email.

Laura Groshong, LICSW, Director, Policy and Practice

Clinical Social Work Association
The National Voice of Clinical Social Work
Strengthening IDENTITY | Preserving INTEGRITY | Advocating PARITY