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Policy Report: Civil Commitment Under
Medicaid Managed Care
Introduction and Overview
Among the most controversial practices engaged in by
mental health practitioners are involuntary interventions.
Civil commitment-the process by which an
individual is compelled to receive treatment for a mental illness-
has long been a point of contention among clinicians, family members,
people with mental illnesses, and advocates. The debate now
also extends to commitment to treatment in outpatient settings, a
practice that has grown in frequency in recent years. At the heart of
the issue is the need to strike a balance among frequently conflicting
concerns:
- Protecting the interests of those whose illnesses
may impair their judgment or ability
to care for themselves.
- Maintaining the rights and dignity of the
individual.
- Ensuring the safety and welfare of the
community and the individual.
- Encouraging acceptance of those whose
behaviors may not conform to social
norms.
Although some advocates oppose any form
of coerced treatment, other stakeholders,
including many consumers, accept the limited
use of court commitment as an unfortunate,
but necessary, part of mental health care.
There is widespread agreement that civil commitment
should be a measure of last resort
and that efforts should be undertaken to
make the process more humane than is often
the case (Blanch, 1992; Mancuso, 1997).
The advent of Medicaid managed behavioral
health care has given rise to new issues
around the process of civil commitment.
These include disagreements over criteria used to assess the need for treatment, who
decides what type of treatment is necessary,
how and where the treatment is provided,
and who-the managed care contractor or
the Mental Health Authority (which may be
at the State or county level)-is fiscally
responsible when treatment is ordered by the
courts. Concern has also been raised about
the frequency with which court-ordered
commitment is being used under Medicaid
managed care. Some have argued that
because a managed care organization (MCO)
has the authority to deny payment for services,
the use of court orders for treatment may
increase because civil commitment can
ensure consumers’ access to needed services.
Others have said that the use of civil commitment
should effectively decrease, asserting
that under cost-controlling managed
care, expensive services such as inpatient
hospitalization will be replaced by less costly
and less restrictive treatment within the community
(Bazelon Center, 1995). Finally, some
advocates and policy analysts have expressed
concern that court orders could act as a mechanism to shift the responsibility for
high-need clients-and their associated
costs-from the MCO onto another payer
(see, for example, Bazelon Center, 1995;
Petrila, 1995).
To date, evidence supporting any of the
foregoing views is largely anecdotal. Little
carefully constructed, empirical research has
been conducted to ascertain the frequency of
court-ordered commitment under managed
care arrangements or to determine whether
economic incentives correlate with a change
in frequency.
Statement of the Problem
This exploratory study on the relationship
between Medicaid managed care and civil
commitment2
in a few selected States is an
effort to begin addressing these questions.
Specific study questions asked include the
following:
Has the State addressed the issue of civil
commitment in its Medicaid managed
care contract? If so, does the contract
clearly specify the following four points?
- Whether and under what circumstances
the MCO is responsible to
pay for court-ordered service.
- Where court-ordered hospitalization
will take place and whether the
MCO is responsible to pay for care
in an institution for mental disease
(IMD).3
- What services will be deemed
medically necessary and how this
determination will occur.
- Whether the capitation rate includes
the cost of court-ordered services,
and whether there is some form of
incentive in the contract that would
encourage the use of civil commitment.
It is important to recognize that differences
exist in the structure of State mental
health systems and that wide variations
occur in the way that managed care plans
are designed and implemented. Indeed, probably
no two completely identical implementations
of Medicaid managed behavioral
health care exist in the nation. Thus, the case
studies in this report are not exhaustive of
the possible ways in which managed care contracts can address civil commitment.
Rather, they illustrate four States’ contract
provisions and experiences. In Wisconsin,
for example, the MCO is required to pay
for any enrollee who is court-committed to
treatment; however, the contractor is not
responsible for IMD-based care for adults.
In contrast, managed care contractors in
Colorado must pay for "any and all" court-ordered
services-including IMD care-even
if the contractor does not believe the criteria
for medical necessity are met.
The managed care contract in Iowa establishes
something of a balance between State
and contractor responsibilities. The MCO
automatically covers any 5-day inpatient
mental health evaluation, but bears the cost
of extended commitment only if the treatment
meets the criteria for psychosocial4
necessity and is offered by an in-network
provider. In addition, the contractor is not
required to pay for IMD services unless the
overall cost of IMD treatment exceeds the
level that was experienced prior to the implementation
of Medicaid managed care. If
IMD utilization expenses exceed that baseline
level, then the MCO must assume any
subsequent costs for that year.
Finally, Minnesota offers an example of a
Medicaid managed care contract that has
approached civil commitment in piecemeal
fashion. Reportedly, the original managed
care contract in this State did not contain
provisions related to civil commitment; there
was no mention of the IMD exclusion or any
provision detailing the contractor’s fiscal
responsibility for court-ordered treatment.
This oversight-perceived by our interviewees
as damaging to both consumers and the
overall mental health system-resulted in a
legislative remedy to issues that have been
addressed in other States’ Medicaid managed
care contracts.
Civil Commitment
The American Bar Association’s (ABA’s)
Commission on Mental and Physical
Disability Law describes civil commitment
as the following:
…the process by which individuals with
mental illnesses or mental impairments,
such as mental retardation, developmental
disabilities, substance abuse, or
alcoholism, are compelled to receive
care and treatment for these conditions,
either in inpatient or outpatient settings
(ABA, 1995).
For an individual to be civilly committed to
treatment, most States require evidence that
the person presents an immediate danger to
self or others (see Linburn, 1998), or that she
or he is "gravely disabled" (a condition often
viewed as an indicator of "danger to self").
Because "dangerousness" can be difficult to
establish, some States have added an "in
need of treatment" criterion to their civil
commitment statutes (e.g., Arizona-see
ABA, 1995). Although precise legislative language
for these criteria may vary considerably
across jurisdictions (Rubin, Snapp,
Panzano, & Taynor, 1996), the general
process of civil commitment is fairly consistent.
In almost all cases, an initial petition is
filed, based on an assessment that an individual
in question represents an imminent danger
to self or others or is in need of immediate
treatment. On the basis of this emergency
petition, the individual may be placed in a
secure inpatient facility for a short-term commitment
(also referred to as an "emergency commitment" or "observational commitment"[
ABA, 1995]). In many States, under
such an emergency petition, the individual
may be committed without a court hearing.
However, most States do limit the length of
time the individual may be detained (usually
72 hours).
At the end of the initial commitment period,
the individual must be either released or
must receive a court hearing to assess the
need for an extended commitment. Such a
hearing aims to determine if the individual
meets the State’s legal criteria for commitment
("danger to self/others," etc.).
Extended commitments usually are also time-limited,
although the duration is substantially
longer than an observation period. In
addition, most jurisdictions require that these
orders be reviewed periodically, to ensure
that an individual who no longer meets the
commitment criteria is not held indefinitely
(ABA, 1995).
The civil commitment process varies
somewhat across the States in this study. For
example, in Colorado an individual who is
perceived as dangerous may be brought to a
mental health facility by a police officer or
licensed clinician for further evaluation. The
initial commitment period is for 72 hours,5
after which a court hearing must be conducted
to assess the individual’s need for further
treatment. Both the judge and an MCO representative
have input into the type of treatment
that they believe will most likely benefit
the individual. In Colorado, extended
commitment is for 90 days, during which
time the consumer may choose to challenge
the commitment order.
In marked contrast, a police officer or
physician can file an emergency commitment
in Massachusetts to hold and treat an individual
for up to 24 days. During this nearly
month-long period, the individual must be
evaluated and offered appropriate treatments.
At the end of the 24 days, a petition
may be brought before the court to seek
extended commitment. Neither the extended
commitment period nor the location of treatment
is specified in State statute or regulation;
these are left to the discretion of the
court, which may seek physician input. One
interviewee from Massachusetts noted that
these long holding periods (compared with
other States in this study) may contribute to
the relative rarity of extended civil commitment
in this jurisdiction.
Regardless of how States have structured
their civil commitment processes, mental
health consumers around the country have
expressed serious concerns about what they
perceive to be an abrogation of their civil
rights. Families, the judiciary, and many
providers view civil commitment as a way to
ensure care, particularly for those unable to
consent to treatment. Consumers, however,
have asserted that the process merely uses
the legal system to deprive individuals of
their personal liberty (ABA, 1995, p. 19).
The move to Medicaid managed care further
highlights these concerns, and brings yet
another voice-the MCO-into the medical
and legal decision-making processes.
Medicaid Managed Behavioral Health Care
As many policy analysts have pointed out
(e.g., Bazelon Center, 1995; Dorwart, 1990),
"managed care" is not a single financing
arrangement, but rather is a term applied to
a range of approaches that emphasize provision
of coordinated and appropriate health services in a cost-efficient manner. Such
arrangements may range from aggressive utilization
review and discounted fee-for-service
plans to capitated payments. Under capitation,
the MCO either may receive payments
and operate under a discounted fee-for-service
plan or may opt to subcapitate to local
providers.
The national trend toward the management
of health care costs began in earnest in
the 1980s, sparked by reports of a 12 to 15
percent annualized growth rate in the industry
(Dorwart, 1990, p. 1088). A particular
focus of the managed care movement was
behavioral health services, the costs of which
were reported to be rising far faster than
other aspects of health care, thereby threatening
to bankrupt private insurance carriers.
As Cuffel, Snowden, Masland, and Piccagli
(1996) note, although the validity of these
reports was questionable, the concern fueled
an entire industry of private-sector managed
behavioral health care organizations.
Faced with similar issues of uncontrolled
growth and increasing expenditures, the
management of public-sector health care was
not far behind that taking place in private
industry (see Cuffel et al., 1996; Feldman,
Baker, & Penner, 1997; Hadley, Schinnar, &
Rothbard, 1992). The Medicaid program,
for example, ranks as one of the fastest-growing
components of both Federal and
State budgets. It is currently the major source
of mental health services funding in the
United States; approximately 42 percent of
mental health service dollars come from
Medicaid (Lewin Group, 1997). Recent studies
have found that in 1993, Medicaid cost
$100 billion more and served 10 million
more beneficiaries than it did a decade earlier
(Behavioral Health Management, 1995).
The average State Medicaid expenditure as a percentage of total State expenditures
increased from 17.8 percent to 19.4 percent
between 1992 and 1994 (National
Association of State Budget Officers, 1995).
The initial public-sector shift to Medicaid
managed care thus grew out of States’ desires
to get the most out of limited Medicaid dollars
while maintaining essential coverage for
vulnerable populations. To move Medicaid
recipients to a managed care arrangement,
however, States have been required to apply
for and receive Federal "waivers" from particular
requirements of the Medicaid statute.
The the Centers for Medicare and Medicaid Services,
the Federal agency responsible for the
Medicaid program, may grant either of two
types of waiver to States that want to institute
a managed care system. Under the
Section 1915b waiver-the more limited of
the two options-States may restrict the
range of providers from whom beneficiaries
can receive services, but are allowed little
other flexibility in program design or coverage
(Bazelon Center, 1995; Policy Resource
Center, 1996). This type of waiver is granted
for a 2-year period, after which new application
must be made.
In contrast, under the Section 1115
research and demonstration waiver, States
are permitted tremendous flexibility in how
they administer their Medicaid program.
Upon receipt of this waiver, States may
expand eligibility criteria for Medicaid
enrollment, enhance the range of services
offered to specified populations, or allow
alterations in Medicaid reimbursement
requirements. The 1115 waiver is granted for
a 5-year period. Only after an evaluation of
its impact may a new waiver be granted to
the State.
Under either waiver, behavioral health
services financing can be managed in a number of ways. For example, in some State
Medicaid plans (such as the BadgerCare
program in Wisconsin), mental health and
substance abuse services are part of a fully
integrated managed care plan-one that covers
mental as well as physical disorders. The
advantage of this arrangement is that a single
insurer covers the beneficiary, facilitating
treatment of mental health as well as primary
health needs. Particularly for an individual
with a serious mental illness, the disadvantages
of such a plan are numerous,
and include the potential of missed or incorrect
diagnoses and treatments (see Bazelon
Center, 1995). In addition, as the Bazelon
Center (1995) has noted, such plans usually
are oriented toward acute illnesses and, thus,
are less attuned to issues faced by individuals
with chronic disorders.
The potential difficulties of an integrated
plan for seriously mentally ill enrollees have
led some States to separate behavioral health
coverage from the physical health care plan.
In some cases, such as the Iowa Plan, mental
health and substance abuse services have
been placed in a separate, specialized managed
behavioral health care plan; such an
arrangement is known as a full carve-out. In
other instances, either mental health or substance
abuse services are covered by a plan
separate from all other health care coverage.
This arrangement is known as a partial
carve-out, represented in this report by the
Colorado Mental Health Capitation and
Managed Care Program.
The potential advantage of a carve-out
arrangement is clear for enrollees with a
serious mental illness or substance abuse
problem. The health care plan specializes in
meeting the diverse needs of the covered
population. Thus, inpatient hospitalization
or assertive community treatment may be standard, covered plan benefits. The obvious
disadvantage to separate behavioral and
physical health care coverage is that the person
with a serious mental illness may not get
his or her physical health needs adequately
cared for (Bazelon Center, 1995).
Finally, some States may exclude individuals
with behavioral health needs from the
managed care plan altogether, retaining mental
health and substance abuse services
under a traditional fee-for-service arrangement.
Minnesota, whose current Medicaid
managed care plan covers only those individuals
with acute mental health care needs,
is such an example. Although this arrangement
may work well for States with limited
resources, the Bazelon Center notes that this
design "perpetuates the second-class status
of people with mental illness and the second-class
care they receive" (Bazelon Center,
1995).
Civil Commitment and Medicaid Managed
Behavioral Health Care
As individual policy issues, civil commitment
and managed behavioral health care are controversial,
each subject to debate among policy
analysts, health care providers, consumers,
and members of other stakeholder
groups. Little attention has been directed to
issues at the intersection of these two policy
arenas. Yet even in the limited exploration of
the topic, markedly different conclusions
have been reached about how best to
address civil commitment in the context of
Medicaid managed care contracts.
Many individuals, including several health
policy experts, argue that Medicaid managed
care contracts should include explicit provisions
around how the MCO will address
civil commitment. For example, John Petrila
(1995 and personal interview) and the Bazelon Center (1995) contend that the contract
should delineate explicitly whether the
MCO bears responsibility to pay for court-ordered
services. If the MCO is exempt from
responsibility or if the contract is silent, the
MCO may perceive an incentive to use civil
commitment to shift responsibility for costs
and patients onto another payer (e.g., the
county or State).
Similarly, some have posited that the contract
should address the question of where
court-ordered hospitalization will take place
as well as the MCO’s relative responsibility
for IMD care. Under Federal Medicaid law,
Medicaid funds cannot be used to pay for
IMD care provided to adults ages 22 to 65
(see footnote 1). If most civilly committed
consumers are hospitalized in IMDs (such as
State hospitals), and if the contract does not
specify the MCO’s responsibility for associated
costs, once again the MCO can use civil
commitment and treatment in an IMD to
shift responsibility for high-cost consumers
onto another payer.
In addition, consumer and provider
groups alike have argued that the contract
should detail explicitly the services deemed
"medically necessary" under Medicaid managed
care, as well as how this determination
is made for the individual consumer (see,
for example, Bazelon Center, 1998).
Otherwise, if an MCO has latitude to find
certain high-cost services to be "not medically
necessary," providers (or others in the
system) might use the civil commitment
process to give consumers access to needed,
but otherwise uncovered, services (Petrila,
1998).
Finally, those favoring explicit contract
language suggest that the contract should require coverage for certain community-based
services, as well as include provisions
ensuring the availability of appropriate community
supports. A number of experts consulted
noted that many civil commitments
are the result of a mental health service system
with insufficient supports within the
community. The underserved person, they
argue, may deteriorate at home and may
ultimately be committed, usually to an inpatient
unit.
Some consumers and consumer groups
posit that any form of coerced treatment is
inappropriate treatment. Therefore, they
oppose any specific mention of civil commitment
in Medicaid managed care contracts.
Thus, if a contract allocates funds to an
MCO to cover the cost of court-ordered
services, the MCO has an incentive to use
the civil commitment process-a covered
service-frequently. Similarly, these consumer
advocates reject capitation rates that include
the cost of court-ordered services, as well as
other contract incentives that appear to
encourage the use of civil commitment.
Organization of the Report
This report describes how several specific
States address civil commitment in their
Medicaid managed care contracts, and
explores the effect of those contract provisions
(or lack thereof) on the frequency or
manner in which civil commitment is used in
those jurisdictions. Chapter 2 presents the
methodology used in conducting this study.
Chapter 3 presents case studies of four
States. Chapter 4 summarizes findings and
offers some suggestions for further research
on these issues.
2 Although the American Bar Association (1995)
defines eight possible types of civil commitment, in
this report the term will be used to refer to only
three instances of forced treatment:
a. Third-party commitment, in which an individual
who has no legal relationship to the consumer
petitions to have the individual committed
to an inpatient facility for treatment.
b. Short-term commitment (usually 3–5 days) to
an inpatient facility for a mental status evaluation.
This type of commitment is also referred
to as "emergency commitment" and usually
does not require judicial proceedings.
c. Extended commitment (30–90 days or longer)
to an inpatient facility subsequent to the findings
of the emergency evaluation. The extended
commitment requires due process.
3 An institution for mental disease-or IMD-is
defined as any facility with 16 or more beds that is
devoted exclusively to the delivery of psychiatric
services. Under the Federal Medicaid statutes,
Medicaid funds cannot be used to pay for IMD
services for adults between the ages of 21 and 64.
The purpose of this provision, enacted at the start
of Medicaid in 1965, was to ensure that the States’
traditional responsibility for funding State mental
hospitals was not shifted to the new Medicaid program.
States may elect to cover individuals under
21 or over 64 years of age in IMDs, but this is not
mandatory.
4 Iowa has extended the concept of medical necessity
in its managed care contract, establishing criteria
for treatment that will meet the psychosocial
needs of the enrolled population. This is discussed
in greater detail in the Iowa case study (Appendix,
Case Study C).
5 Of the four States included as case studies in this
report, Colorado, Minnesota, and Wisconsin
enforce an initial 72-hour emergency commitment,
while Iowa has a 5-day evaluation period.
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