After the state of California fined her employer $4 million in 2013 for violating the legal rights of mental health patients, Oakland psychologist Melinda Ginne expected her job — and her patients’ lives — to get better.
Instead, she said, things got worse.
Within months, Ginne, a whistleblower in the 2013 case, was back to writing her supervisors at Kaiser Permanente about what she considered unconscionable delays in care. Patients who were debilitated or dying from physical diseases for which they were receiving regular medical treatment had to wait months for psychological help, she said. Some patients, she said, might not live long enough to make the next available appointment.
“I can’t tell a family whose elderly mother is declining that I can’t provide treatment until 2014,” she wrote to her managers at the Kaiser Medical Center in Oakland in September 2013. In February, two years after assessing the second largest fine in its history, the California Department of Managed Health Care stepped in again, finding that Kaiser Foundation Health Plan had improved somewhat but still was short-changing patients on mental health care. The state is considering another fine against the health maintenance organization, which is not affiliated with Kaiser Health News.
“Every time the DMHC has an edict, Kaiser Permanente has a way around it,” said Ginne, who retired in September 2014.
California has taken perhaps the most proactive stance in the nation in enforcing laws to ensure people with mental illnesses have fair and timely access to care. But even in this state, it’s proving difficult to ensure mental patients truly have equal access to treatment. Parity laws, including a sweeping measure passed by the federal government in 2008 and an older California law, require insurers to provide mental health and substance abuse benefits on par with the coverage they offer for other medical care. And a separate state law requires insurers to provide patients with access to mental treatment within a specific timeframe – 48 hours for an urgent visit and 10 business days for a non-urgent one.
After the 2013 fine, Kaiser patients continued to face not just ongoing delays – they faced arbitrary limits on treatment in direct violation of the state’s parity statute, officials found. The law was intended to prevent such things as annual caps on patient visits that would not typically be faced, for instance, by patient with another chronic illness such as diabetes or heart disease. Yet, according to the 2015 report, some Kaiser staffers told mental health patients that they were not entitled to long-term individual therapy — ever.
“No one ever sees a therapist once a week in the Kaiser Health Plan,” according to a 2014 email a Kaiser psychologist sent to a patient, which was cited in the state’s most recent report. “Not a covered benefit for the past 20-something years and will not be a benefit in the future.”
Dr. Mason Turner, Kaiser Permanente’s Associate Director of Regional Mental Health for Northern California, said that the organization has fixed the problems identified by the state. “Between the time the DMHC made their [initial] findings and now, we’ve made substantial improvements, hired many more staff, and really put into place a lot of mechanisms to address the initial concerns that were brought up,” Turner said in April.
The access problems, he said, were caused by an increase in demand, which rose in part because of the influx of new enrollees under the Affordable Care Act. In response, he said, Kaiser increased the ranks of therapists by 25 percent and arranged to contract with outside therapists when necessary.
The actions against Kaiser highlight both how far California has come in ensuring equal treatment for mental health patients and how far it has yet to go. On one hand, after many years of “abysmal” enforcement, “now we have regulators who seem to be enthusiastic,” said Randall Hagar, director of government relations for the California Psychiatric Association. Hagar gives credit to managed health care department director Shelley Rouillard, who spent 20 years in consumer advocacy before joining the department in 2011 and becoming director in 2013.
On the other hand, critics say, Rouillard and her staff are making slow progress at best.
“This is one of the ‘pace car’ states, and it’s still slow going,” said Carol McDaid, who runs the Parity Implementation Coalition, an advocacy group made up of addiction and mental health consumer and provider organizations.
Holding Insurers Accountable
In challenging Kaiser Permanente in 2013, the state’s managed care department took on one of the largest not-for-profit health plans in the country. It is a huge player in the California market, with almost 7.5 million members in the state and a net income nationally of $3.1 billion last year.
But officials soon realized the problems with unequal coverage of mental health were much broader.
For years, California, like most states and the federal government, relied on consumers to bring complaints alleging that their rights had been violated under parity laws. State regulators grew concerned that the approach was too passive — few consumers were complaining, perhaps because of the stigma attached to mental illness. So as a first step, the department last year began requiring insurers under its watch to show — at least on paper – that they were complying with federal parity law.
The results were not encouraging: Of 26 managed care insurers, from Aetna to Western Health Advantage, zero were able to prove that they were fully in compliance. Most filed incomplete or flawed documents, state officials said.
“It is rather shocking,” Rouillard said.
Part of the problem, Rouillard said, is that the federal government did not release the final regulations dictating how its parity law should be enforced until November 2013 – five years after the law was passed.
In their review of documents, her department’s analysts found it hard to even compare mental and general health care because of simple errors in the way insurers documented them, such as putting data in the wrong fields, Rouillard said. But she said they also found insurers trying to control costs in ways that could be discriminatory — for example, by limiting the number of days a patient could receive inpatient care for a mental health condition.
“Mental health services are still sort of a second class benefit as far as the health plans are concerned,” Rouillard said.
At this point, Rouillard says the managed care plans she regulates are in varying stages of compliance with the federal parity law. Just one plan, Health Net, has so far been able to prove on paper that its benefits fully comply. Rouillard says she expects the other plans to follow suit by the end of the year, and in 2016, the department plans a more intensive review.
Charles Bacchi, President and CEO of the California Association of Health Plans, disputed that insurers see mental health as a second-tier benefit. “We’re committed to providing this coverage for our enrollees. It’s very important, and it’s something that we’re working hard to do,” he said.
But the law poses a huge challenge for health plans, he said, in part because the science underpinning diagnosis and treatment of mental illness is constantly evolving. In addition, health plans are trying to adapt not just to parity law but to the implementation of the Affordable Care Act, which has transformed the national insurance landscape.
Even so, he said, “I think by the end of this year, all the plans will have filed the right documents and will have approval from the department, and this will be something that’s in the rearview mirror.”
‘Your Hands Are Tied’
In her psychiatry department, Ginne felt she was in a good position to compare patients’ access to mental health treatment with other care. Many of them suffer from neurological or terminal diseases with psychological components – Alzheimer’s, for instance, or Parkinson’s.
“I could see from their medical charts that they were receiving all the medical care that they needed,” Ginne said. “We couldn’t do that in psychiatry because we were so severely under-staffed.”
Finding that her situation did not improve even after the first investigation and fine, Ginne made a request of her managers — copied to Rouillard – in December 2013. She asked that six of her sickest patients be transferred to other providers who could see them more frequently. One of them, an elderly man with dementia and depression, was hallucinating “fully-formed humans,” Ginne said in an interview.
One day, he wandered down the block at 5 am in his pajamas, panicked, and flagged down a truck driver who called the police.
“He was a danger to himself,” Ginne said.
According to Ginne, the backup in appointments meant she could see him for individual therapy only once every few months. The man had been assigned to regular group therapy, she said.
But because Kaiser did not have a session for dementia patients, he was in a depression group, which Ginne felt was inappropriate for his condition.
When her supervisors did not transfer the man to another individual therapy provider, Ginne reported the case to Adult Protective Services, because she said she believed him to be imminent danger.
It was “such a bad solution,” she said, shaking her head. Ultimately, he and his wife decided to quit therapy entirely.
“It does something to your spirit to realize your hands are tied, that you are completely unable to do the work you’re dedicated and trained to do,” Ginne said.
The follow-up report released by the DMHC in February 2015 found Kaiser had improved its tracking of mental health patients but still had serious problems in the area of access to care. In one case, a sexual assault victim diagnosed with post-traumatic stress disorder and major depression tried to schedule both individual and group therapy visits, but her psychiatrist told her to seek private therapy in the community at her own expense.
According to the doctor, “weekly individual therapy was not available in the Plan, and Plan group therapy did not address sexual assault.” The patient was eventually able to schedule an appointment with a Kaiser therapist — five months after her initial visit, the report said.
In another case cited by the report, a child with aggressive and sexualized behaviors at both home and school was brought in by her family in crisis. After an initial intake visit, the child was not seen for therapy until seven weeks later, though the medical chart indicated that the family had pleaded for treatment.
Rouillard said that many insurers have a long way to go to ensure fair and equal access to mental health care for Californians. But she also said there’s only so much her department can do. Access to care at companies like Kaiser is also an issue of capacity – and that’s not within the department’s purview, she said.
“There just aren’t enough therapists to see everyone who needs help,” she said. “It isn’t just a plan problem; it’s a societal problem. And that is really the crux of the matter. We’re trying to address a problem that is beyond our ability to fix, and that is a challenge.”
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