Policy Report: Civil Commitment Under
Medicaid Managed Care
Conclusions
This report has examined how different States address civil
commitment in their Medicaid managed care contracts, and
the impact contract language has on the frequency of or manner
in which civil commitment is used. In the previous chapter, four
States were examined in some detail, looking not only at the contract
provisions specific to civil commitment, but also the specific experiences
that led to adoption of those provisions. These jurisdictions differed in
their Medicaid managed care financing arrangements, the structure of the
civil commitment process, and the content of specific contract provisions.
Given the variability in each element and the speculative nature of much
of the material, caution clearly is warranted in reaching conclusions. The
following particular themes did emerge across the study sites, however,
suggesting issues relevant to civil commitment that should be addressed
in Medicaid managed behavioral health care contracts:
- Contracts that do not address the issue of
fiscal responsibility for costs associated
with civil commitment may result in
increased use of court-ordered treatment.
The absence of clear contract provisions
may create incentives for managed care
organizations (MCOs) to use civil commitment
as a way to shift costs onto the
State mental health authority or counties.
Some MCOs will rely on principles of
private insurance law to automatically
deny the medical necessity of court-ordered
services; others may rely on the
Medicaid institution for mental disease
(IMD) exclusion to deny payment for
court-ordered services in State hospitals.
Contracts that anticipate such potential
cost-shifting possibilities and address
them may prevent growth in the frequency
of civil commitment in a system.
- Collaboration between the judiciary and
the MCO may reduce the incidence of
court orders to inpatient settings. Many
judges, with limited knowledge of treatment
options within the community,
may routinely order civilly committed
individuals to inpatient settings. Communication
between the courts and
MCOs often results in treatment in less
restrictive settings and allows the MCO
to better manage treatment costs.
- Systems that restrict access to services
excessively may increase use of civil commitment
as a means of obtaining treatment.
Potentially restrictive policies
include narrow “medical model” definitions
of medical necessity that leave
MCOs too much latitude to deny payment
for services required for persons
with serious mental illness. Medicaid
managed care contracts can address
treatment accessibility so needed services
can be obtained without resort to court
orders.
- A comprehensive system of supports
based in the community may reduce the
need for civil commitment. The types of
supportive services needed to help an
individual maintain stable functioning
in a community setting are well established,
but are not always included in
Medicaid managed behavioral health
care programs (or Medicaid fee-for-service
programs for that matter).
Contracts that require MCOs to develop
strong community supports may result
in greater responsiveness to consumers’
needs, thereby reducing the need for
civil commitment.
Mandating MCO Responsibility for
Some Civil Commitment Costs
The importance of including contract provisions
to eliminate MCOs’ blanket refusal to
pay for any court-ordered services is a key
theme that emerged across all study sites.
Three of the four States in the case studies
incorporated such provisions near the beginning
of the Medicaid managed care contracting
process. The fourth State, Minnesota,
drafted such provisions after perceiving the
absence of such provisions had created
adverse consequences for the State’s mental
health consumers. Although State contracts
varied in nomenclature and scope, apparent
consensus across jurisdictions was reached
that MCOs must bear some responsibility
for the costs of court-mandated treatment
for enrollees. In the absence of relevant contract
language, persons with mental illness
may find themselves disenrolled from their
managed care plan as a result of the civil
commitment process, disrupting the individual’s
tenure in the community and cost-shifting
payment to the State, all of which effectively
defeats the intention of a Medicaid
managed care arrangement.
Requiring MCO Involvement with the Courts
and the Civil Commitment Process
A major concern with the typical operation
of the civil commitment process is that the
judge, having determined a person meets the
criteria for involuntary civil commitment,
routinely places the individual in an inpatient
setting, such as a State psychiatric hospital.
In addition, the commitment often is for a
fixed period that may be longer than is clinically
appropriate. Such standard commitment
orders sometimes ignore both the legal
requirement that placement be in the “least
restrictive alternative” setting and the individual
differences in the duration of needed
care. Historically, many communities have
lacked appropriate alternative care settings;
judges may not be aware of those that do
exist. Moreover, judges are not attentive at
all times to the fiscal impact of their decisions
on service providers or MCOs. The
result is that consumers may be routinely
ordered to State psychiatric hospitals for
fixed periods, rather than to alternative settings
that may well be less restrictive and
provide a more appropriate level of care.
Several of the States in this study have
attempted to control clinically inappropriate
inpatient utilization by including contract
language that requires the MCOs to engage
actively in the commitment process and to
provide information about appropriate care
alternatives to the judges. In some cases, the
MCO is specifically required to evaluate a
client within a specified period of time so a
suitable plan of care can be formulated and
communicated to the judge. The MCO’s
responsibility in the process has been most
clearly delineated in Iowa, where the contract
requires the MCO to hire two court
liaisons to work full-time with the judges.
Other States have adopted similar, if less
stringent, provisions “encouraging” the
MCO to coordinate with the judges in the
civil commitment process (Colorado) or
requiring counties to consult with the MCO
at prepetition screening (Minnesota). Such
collaborations hold the potential to help
ensure appropriate levels of care in less
restrictive settings, while allowing the MCOs
some control over costs.
Preventing the Use of Civil Commitment to
Shift Responsibility for Clients and Costs
In many Medicaid managed care arrangements,
the responsibility for high-cost treatment
services can be shifted from the MCO
to another part of the system. As noted earlier,
one opportunity for cost-shifting is created
by the Medicaid IMD exclusion, which
forbids Medicaid funds to pay for IMD services
for adults ages 22 to 64. In some of the
States in the study, interviewees reported that
the majority of court orders for treatment
were made to State hospitals. In cases in
which States failed to address this issue in
their Medicaid managed care contracts,
MCOs may have used court orders to shift
responsibility for high-cost clients to the
State Mental Health Authority or the counties.
An interviewee from Minnesota stated:
For involuntary treatment this year the
Legislature passed a law that…health
plans can be deemed responsible for
court ordered treatment that is medically
necessary.…Prior to that we’ve
always had the concern…that health
plans could use an IMD setting as a
cost-shift from their…financial responsibility to the State.…We don’t have the
data that shows this would happen...
nobody admits to it, but everybody
suspects that that was probably a motivator
in at least some of the cases.
The IMD exclusion offers the most obvious
opportunity for cost-shifting through the use
of civil commitment orders. States that anticipated
such a trend either adopted legislation
or redrafted their contracts to address this
matter.
Our interviewees also noted that the
Medicaid statute prohibits payment for services
delivered to persons in the correctional
system, offering another venue to which the
MCO may shift responsibility for high-cost
individuals. Many interviewees commented
that, while inpatient mental health care is
decreasing, the number of behavioral health
consumers being placed in other institutional
settings, such as the corrections system,
appears to be on the rise.15
In one Colorado county detention center, for example, the
number of beds had risen from 80 to 550
over the past two decades, 16
with one wing
of the facility now devoted exclusively to
serving individuals with “significant mental
health problems.” In response to the increase
in the numbers of people with mental health
problems, the detention center has contracted
out for a psychologist and has hired four
full-time psychiatric case managers to assist
these clients.
Certainly, while fiscal division between
these two systems might suggest an opportunity
for cost-shifting from an MCO to the
correctional system, the extent to which this
actually happens is unclear. Nevertheless,
officials responsible for a Medicaid managed
care program need to be cognizant of the
potential for cost-shifting to correctional systems.
At the very least, a Medicaid managed
care contract should encourage coordination
among service agencies to ensure that consumers
receive the type and level of services
most appropriate to their needs.
Precluding the Use of Civil Commitment to
Obtain Needed Services
Much of the debate around civil commitment
centers on the ethics of forcing people
with mental illness to receive unwanted treatment.
Those favoring court-mandated treatment
argue that society has a responsibility
to provide treatment to a person incompetent
to make a decision on his or her own
behalf. In contrast, other consumers with
mental illness should have the same right to
refuse treatment as other people with defined
illnesses. Ultimately, both sides focus on the
relationship between the commitment
process and the civil rights of the individual.
Less frequently discussed, but certainly an
issue raised by interviewees, is the use of civil
commitment to override structural barriers
to care. For example, interviewees in
Minnesota noted that past State-level policies
designed to limit the use of costly treatments
had inadvertently encouraged the use of civil
commitment as a way to gain access to services
such as inpatient hospitalization.
The advent of Medicaid managed care
raised similar concerns. Specifically, several
interviewees noted that if a contract fails to
define the criteria for and process of determining “medically necessary care” explicitly,
MCOs might deny coverage for expensive
services, such as inpatient care. Families and
providers are left little choice but to use the
courts to provide consumers with denied-but-needed treatment. Thus, several States in
this study adopted contract provisions
designed to prevent just this use of the civil
commitment process. In Iowa, for example,
the contractor readily agreed to pay for a 5-day evaluation period specifically to discourage
stakeholders from believing that courts
are the only way to access services.
Other States recognized that vaguely
defined criteria for “medical necessity” provided
the same potential for denied treatment
and use of the courts to access services.
In Minnesota, the original Medicaid managed
care contract did not address the issue
of medical necessity, leading stakeholders to
speculate that MCOs were routinely denying
specific high-cost treatments for enrollees. As
a result, legislation was passed to define minimum
standards of “medical necessity” clearly,
so access to services would no longer be
an issue. Conversely, Colorado policymakers
believed that if they kept the contractual definition
of medical necessity deliberately
vague, they could limit the basis on which
the MCO could deny treatment. Recall from
the Colorado case study that once an evaluation
determines that an individual has a mental
illness, the contractor is required to “provide
all mental health services necessary to
treat a diagnosis.” Thus, by the terms of the
contract, the MCO cannot refuse to pay for
treatment in general, but does have an
opportunity to determine with the courts
what particular treatment would best serve
the consumer.
Skeptics sometimes suggest that a more
appropriate appellation for “managed care”
is “managed costs.” They are concerned that
MCOs may refuse to pay for certain services
routinely in an effort to enhance profits.
Stakeholders have been concerned that under
such a scenario, desperate measures—such as
civil commitment—would be required to
obtain high-cost services for consumers.
Several States have anticipated such difficulties
and have included language in their
Medicaid managed care contract to prevent
them.
Reducing Civil Commitment by Enhancing
Community Support Systems
Many of the stakeholders interviewed agreed
that a well-developed system of services
within the community can reduce dependence
on inpatient hospitalization, a view-point
that has long received support from
consumer advocates and others in the field
(AMBHA, 1998; Blanch, 1992). With the
advent of managed care, however, the concern
has arisen that MCOs might fail to
develop an adequate community support
structure in an effort to realize short-term
cost savings. Chris Koyanagi of the Bazelon
Center discussed this perspective:
With those [managed care] companies,
the concern was they will find the
cheapest way to provide services…one
of the cheapest ways to provide services
is not to work with someone and help
them understand their illness and provide
24-hour case management while
they go through the various crises. The
simple way would be to just slap a
commitment order on them and get
them in the hospital, get them on the
drugs you think are going to work.
Although a managed care arrangement
may lead to poor community support and an
increase in civil commitments to inpatient
settings, this outcome is not inevitable.
Indeed, several study States have made a
concerted effort to enhance services within
the community precisely to reduce civil commitment
and inpatient hospitalization. In
Iowa, for example, the MCO has been given
wide latitude in determining what services
can be covered under the terms of the contract.
The representative from Merit
Behavioral Care of Iowa stated,
The State’s goal when they went to
managed care is that by…not…having
to only pay for traditional kinds of
services…with those dollars we could
be much more flexible. And through
that flexibility, what they were really
hoping is that we could reduce inpatient
stays. So that we could use those
dollars and pay for support services…in
the community, in a person’s home.
In addition to allowing this flexibility,
Iowa’s managed care contract indirectly promotes
development of alternative services
within the community through the use of
performance indicators and financial incentives.
For example, if the benchmark for
Community Tenure is met (“the average
time between hospitalizations shall not fall
below 60 days”), the contractor receives a
financial reward of $125,000. With such an
incentive, it is in the contractor’s financial
interest to create a community support system
to prevent consumers from being
returned to the hospital through civil commitment
proceedings.
Other States have more direct provisions
detailing a contractor’s responsibility for
enhancing community support. In Colorado,
for example, the contract explicitly requires
that certain services within the community,
such as psychosocial rehabilitation programs
and partial-day programs, be in place at the
beginning of the contract period. Other innovative
community supports, such as peer
counseling and warm lines, are “encouraged”
under the terms of the contract.
In the absence of contract provisions to
ensure the availability of adequate community
supports, the incidence of civil commitment
could increase under Medicaid managed
care. The foregoing examples illustrate
that community supports can be preserved
and even enhanced under a Medicaid managed
care contract. Explicit inclusion of such
provisions may ultimately reduce the system’s
reliance on civil commitment within
the managed care framework.
Areas for Further Study
Throughout this study, interviewees offered
interesting perspectives about the relationship
between Medicaid managed care and
civil commitment, some beyond the intended
scope of this project. The first and most
important of these is that the ability to draw
conclusions about the relationship between
Medicaid managed care and the civil commitment
process is limited by the dearth of
quantitative data from the study sites. Most
interviewees acknowledged that they could
“only guess” about trends over time or
whether the shift to Medicaid managed care
had had an impact on the commitment
process. Although Colorado was able to provide
detailed information about court orders
under managed care, the absence of baseline
data (i.e., pre-Medicaid managed care)
makes these data virtually impossible to
assess. Only with valid and reliable longitudinal
data will researchers be able to identify
trends and attempt to understand the impetus
behind them.
Second, and of apparently growing significance,
many of our interviewees expressed
concern about the increasing number of individuals
with serious mental illness who are
ending up in correctional facilities. Although
Medicaid managed care was not seen as the
cause of this movement, additional research
might explore the extent to which managed
care potentially can exacerbate or forestall
this trend. For example, policy expert John
Petrila has suggested that research be conducted
on the impact of mental health
courts, which aim to move people with mental
illness to more appropriate treatment settings
than jail. Not only has such a court
been established in Broward County, Florida,
but two bills also have been introduced to
Congress (H.R. 2594: Rep. Strickland (D-OH),
and S. 1865: Sens. DeWine (R-OH)
and Domenici (R-NM)) that propose the
funding of up to 25 demonstration mental
health courts. Given the widely divergent
mandates of the judiciary (protecting society)
and the managed care contractors (cost-efficient
mental health interventions), evaluation
of these demonstration projects might
explore the extent to which a collaborative
relationship can be established between the
two institutions. For example, would a court
liaison (as is currently being used in Iowa) be
effective in such a potentially adversarial setting?
How much say would the consumer
have in his or her placement decision? And
in order to preclude cost-shifting, what contract
language could be developed to clarify
the MCO’s fiscal responsibility if an enrollee
were incarcerated? Related studies might
involve comparing clinical outcomes and
criminal recidivism rates for diverted versus
nondiverted individuals, staff attitudes
toward the patients/inmates in the clinical
and correctional settings, and the extent to
which the mentally ill persons see such court
actions as coercive or beneficial.
A final issue raised by many mental
health consumers and advocates is how the
frequency of civil commitments may be
affected by the use of “advance directives,”
that is, consumer-developed documents that
specify the services the individual is to
receive in the event of a psychiatric emergency
(Bazelon Center, 1999). Will the judiciary
and the MCO accept the advance
directives? Will doctors legally be able to
carry out the directives? Can the advance
directives be used as an alternative to court-ordered
care? While one of our interviewees
suggested that advance directives could
effectively reduce the number of civil commitments,
future studies might focus on the
experiences with advanced directives and the
implications both for managed care and the
civil commitment process.
15 This viewpoint is consistent with other research on
the relationship between the mental health and
corrections systems (Steadman, Morris, & Dennis,
1995; Lamb & Weinberger, 1998).
16 The population increase for the county over the
same period has been only about 50 percent (from
140,000 residents to a little over 200,000). Thus,
the detention center capacity increased at a rate
disproportionate to the population expansion in
the county.
Table of Contents | Previous | Next
|
