February 25, 2021
At some point today I will testify at the FY 2022 Joint Legislative Budget Hearing examining Health and Medicaid-related proposals in the Governor’s executive budget. Unlike other years when we have testified at this hearing, our testimony today will be focused on a singular topic – the failure of the Department of Health (DOH) to make public important information regarding the carve-in of mental health and substance use disorder services to Medicaid Managed Care beginning in 2015.
As you may recall, before the transition began, a broad group of system stakeholders was convened by state leaders to hash out the rules of the road governing the carve-in. At that time, the NYS Council along with many other advocates expressed our serious concerns that the funds paid to plans could be siphoned out of our systems by participating plans for their profits. We spent countless hours working with state leaders to reach agreement on the substance of regulations and other guidance documents that would ensure the reinvestment of savings that should be returned to our systems of care.
At that time, there was ample evidence in literature and historical context for us to have concerns about the siphoning off of funds once our services transitioned to Medicaid Managed Care. As such, the NYS Council argued for guard rails and other mechanisms that would require the state and participating health plans to meet all of their obligations. Ultimately, regulations were drafted and/or amended and the state’s model contract governing the carve in of behavioral health services reflects the rules to be followed by providers, plans and the state to include the addition of Medical Loss Ratios (MLRs) and Behavioral Health Expenditure Targets (BHETs) for the Mainstream Managed Care plans and the HARP plan.
The NYS Council has been monitoring the status of the carve-in since its’ inception and to this point, we can find no evidence that there has been a reconciliation of the funds paid to the plans including how they were spent, and whether the plans met all of their obligations. In short, there is no way for us to know whether the plans have paid back funds that are required to be returned to our system of care in the event they do not meet the established BHETs and MLRs, and no way for us to know if these funds have indeed been reinvested back into our service delivery systems.
In October and early November 2020, the NYS Council (via our counsel) filed 4 FOIA requests with the Department of Health, seeking a broad range of information based on the regulations and guidance documents governing the transition, including a request for information regarding how the funds paid to plans have been spent and whether they met their targets. We suspect there may be a sizable amount of money due back to our systems of care.
Attached please find the written testimony we prepared for the Hearing today. To prepare this document, we worked closely with our attorney Adam Falcone from Feldsman, Tucker LLP. Feldsman Tucker is also the firm that filed the four FOIA requests (mentioned earlier) on our behalf. Our intent with this testimony is to raise questions regarding the carve in and specifically, to ensure the Department of Health and the health plans are meeting all of their legal and contractual obligations and that any funds due back to our systems of care are returned to it promptly and in full.
In the days to come the NYS Council will continue to lead the charge for transparency of critical data and other information that tells the story of the carve in of mental health and substance use disorders/addiction services to Medicaid Managed Care, and that any/all funding due to the substance use and mental health systems of care is returned to promptly and in full.