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HB 2720 - Behavioral health services ¶

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Section 1 ¶

The legislature finds that:
1. Behavioral health crisis services are cost-effective and reduce burdens on other emergency systems. According to the all payer claims database from 2022 through 2024, aggregate health plan claims payments for hospital emergency department visits where patients have primary mental health diagnoses cost far more than behavioral health crisis services;
2. Behavioral health crisis services which include, but are not limited to, mobile crisis response, crisis relief centers, and crisis stabilization units, provide customized care specific to behavioral health conditions that support people to recover as a more effective alternative to hospital emergency departments;
3. By giving first responders, family members, and people with behavioral health conditions a place to go and someone to respond in a crisis, behavioral health crisis services help people avoid overburdened emergency departments, inpatient hospitals, and jails;
4. Behavioral health crisis services should be available to all regardless of insurance status, residency, age, or diagnosis, similar to medical emergency services;
5. The substance abuse and mental health services administration recommends a comprehensive, 24/7, community-based crisis system that is funded under a firehouse model rather than through traditional insurance reimbursement;
6. RCW 48.43.093 requires health carriers to cover behavioral health emergency services for people enrolled in their health plans. Federal and state mental health parity laws require private health insurance to provide comparable coverage of medical and behavioral health emergency services;
7. Despite ongoing efforts from the office of the insurance commissioner, behavioral health administrative services organizations, behavioral health agencies, and health carriers to implement this coverage requirement, payments for behavioral health emergency services by private health plans remain limited. This is due in part to the challenges of obtaining health insurance information when a client is experiencing a behavioral health crisis or its aftermath and to the complexity of billing private health insurers given limited administrative capacity and billing expertise of behavioral health crisis providers. Due to these structural barriers, there are not clear and consistent systems for payments for behavioral health crisis services by health carriers as required by RCW 48.43.093. As a result, Washington state taxpayers have been subsidizing this care;
8. Behavioral health administrative services organizations are best positioned to administer and implement the array of community-based behavioral health crisis services that a region needs and its providers can deliver, within their limited available resources, given their role as regional behavioral health crisis services authorities under RCW 71.24.045;
  1. A streamlined payment mechanism that does not require billing or contracting with certain health insurers is needed to sustain access to behavioral health crisis services and to ensure that private health insurers provide the financial contribution for these services that RCW 48.43.093 and mental health parity laws are intended to result in; and
9. Communities throughout Washington are seeking to expand access to behavioral health crisis care by establishing new facilities, often with state capital funding, but neither state funding nor private health insurance funding is sufficient to support services in these facilities. Too many have been unable to start providing services in their community.
The legislature intends to create a broad-based, ongoing, dedicated funding source for behavioral health crisis services provided to people that are not eligible for medicaid reimbursement, and for people who are not enrolled in medicaid, which will be in lieu of directly submitting claims for these services to health insurers.

Section 2 ¶

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

"Adjustment factor" means the sum of inflation change and population change for the biennium during which an adjustment increase, as provided in section 3(7) of this act, is being calculated.
"Commissioner" means the insurance commissioner or his or her designee.
"Covered entity" means:
1. A health carrier, as defined in RCW 48.43.005;
2. A self-funded multiple employer welfare arrangement, as defined in RCW 48.125.010; and
3. Public or private employer-sponsored self-funded employee welfare health benefit plans or Taft-Hartley multiemployer health benefit plans.
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1. "Covered lives" means all persons residing in Washington state who are enrolled in health coverage offered by the following entities:
  1. A health plan offered by a health carrier, as defined in RCW 48.43.005. For purposes of this subsection only, "health plan" has the same meaning as defined in RCW 48.43.005 but does not include medicare advantage plans established under medicare part C, outpatient prescription drug plans established under medicare part D, or federal employee health benefit plans;
  2. A self-funded multiple employer welfare arrangement, as defined in RCW 48.125.010; and
  3. Public or private employer-sponsored self-funded employee welfare health benefit plans or Taft-Hartley multiemployer health benefit plans.
2. "Covered lives" does not include lives enrolled in medicaid managed care organizations under contract with the health care authority.
"Inflation change" means the percentage change in the consumer price index for all urban consumers for the Seattle-Tacoma-Bellevue area, or successor index, as published by the federal bureau of labor statistics, for the biennium during which an adjustment increase, as provided in section 3(7) of this act, is being calculated.
"Population change" means the percentage change in state population as reported by the office of financial management for the biennium during which an adjustment increase, as provided in section 3(7) of this act, is being calculated.

Section 3 ¶

All covered entities shall pay an annual covered lives assessment beginning January 1, 2027.
The commissioner shall annually assess a per member per month assessment per covered life for covered entities. The per member per month assessment in calendar year 2027 shall be 58 cents per covered life. The assessment shall be updated every two years in accordance with the process established in subsection (7) of this section.
The commissioner shall annually issue a notice to each covered entity of the total assessment and its payment obligation for the upcoming year. The commissioner shall determine a payment schedule for receipt of assessments under this section. Payment collections may be made no more frequently than quarterly.
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1. Covered entities shall provide the commissioner the information needed to calculate the covered entity's covered lives subject to the assessment in a form and manner determined by the commissioner.
2. The commissioner may contract with an entity to carry out some or all of the functions included in this subsection and subsections (1) through (3) of this section including, but not limited to, obtaining information regarding each covered entity's covered lives and administering the collection of assessments under this section.
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1. Payments from covered entities are due to the commissioner within 45 days of the receipt of notice of their payment obligation determined under this section. The commissioner shall charge interest as detailed by RCW 43.17.240, which begins to accrue on the 46th day, on amounts received after the 45-day period.
2. The commissioner may allow each covered entity in arrears to submit a payment plan, subject to approval by the commissioner. An initial payment under an approved payment plan is due upon execution of the payment plan.
3. Any covered entity failing to pay the assessment within 90 days of notification of the payment obligation under this section must be assessed a penalty. The penalty under this subsection is 150 percent of the assessment owed. The assessment, penalty, and interest owed may be collected by distraint, and recovered by any action instituted by the commissioner in any court of competent jurisdiction. In addition to the penalties and interest outlined in this subsection, the commissioner may revoke a certificate of authority or registration issued by the commissioner to a health carrier. The certificate of authority or registration may not be reissued until all assessments, penalties, and interest have been fully paid to the commissioner.
The commissioner shall deposit annual assessments, interest, and civil penalties collected under this section with the state treasurer to the credit of the behavioral health emergency services account created in section 4 of this act.
Each June of even numbered years, the commissioner shall calculate the assessment for the next two calendar years by increasing the current assessment by known changes in the adjustment factor, except that the increase shall not exceed 10 percent.

Section 4 ¶

The behavioral health emergency services account is created in the state treasury. All receipts from the assessments, interest, and penalties collected by the commissioner under section 3 of this act must be deposited into the account. Moneys in the account may be spent only after appropriation.
Expenditures from the account may be used only for:
1. Behavioral health emergency services administered through behavioral health administrative services organizations as defined in RCW 71.24.025 or federally recognized tribes located in this state, by the following behavioral health emergency services providers as defined in RCW 48.43.005:
  1. A crisis stabilization unit as defined in RCW 71.05.020;
  2. A 23-hour crisis relief center as defined in RCW 71.24.025;
  3. An agency certified by the department of health under chapter 71.24 RCW to provide outpatient crisis services; and
  4. A mobile rapid response crisis team as defined in RCW 71.24.025 that is contracted with a behavioral health administrative services organization operating under RCW 71.24.045 to provide crisis response services in the behavioral health administrative services organization's service area;
2. Administrative costs for the health care authority associated with implementation of this act; and
3. Disbursements to refund erroneous or excessive payments made by covered entities as determined by the commissioner.
Expenditures from the account are subject to the following limitations:
1. The account may not be used for reimbursement of services identified in subsection (2) of this section provided to individuals enrolled in medical assistance programs that include coverage for these services under Title XIX of the federal social security act or Title XXI of the federal social security act; and
2. The account may not be used for reimbursement of services identified in subsection (2) of this section that have been directly billed by a provider or on the provider's behalf and reimbursed by a covered entity or payer for the covered entity or payer's enrollee.
A behavioral health administrative services organization, federally recognized tribe, health care provider, or health care entity that receives funds from the account may not bill a covered entity for behavioral health emergency services listed in this section provided to a covered life.

Section 5 ¶

The commissioner shall adopt rules and undertake actions necessary to implement sections 3 and 4 of this act including, but not limited to, measures to enforce reporting of covered lives, audits of covered lives reporting, and payment of applicable assessments.
The commissioner, in consultation with the health care authority, behavioral health administrative services organizations, and covered entities shall review and revise existing regulations to support transitioning payment for the services described in section 4(2) of this act to the prospective covered lives assessment established in section 3 of this act. This includes, but is not limited to:
1. Network access requirements;
2. Alternate access delivery requests;
3. Contracting requirements; and
4. Claims payment requirements.

Section 6 ¶

When determining the adequacy of a proposed provider network or the ongoing adequacy of an in-force provider network, the commissioner must review the carrier's proposed provider network or in-force provider network to determine whether the network includes a sufficient number of contracted providers of emergency medicine, anesthesiology, pathology, radiology, neonatology, surgery, hospitalist, intensivist, and diagnostic services, including radiology and laboratory services at or for the carrier's contracted in-network hospitals or ambulatory surgical facilities to reasonably ensure enrollees have in-network access to covered benefits delivered at that facility.
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1. When determining the adequacy of a proposed provider network or the ongoing adequacy of an in-force provider network, the commissioner may allow a carrier to submit an alternate access delivery request. The commissioner shall define the circumstances under which a carrier may submit an alternate access delivery request and the requirements for submission and approval of such a request in rule. To submit an alternate access delivery request, a carrier shall:
  1. Ensure that enrollees will not bear any greater cost of receiving services under the alternate access delivery request than if the provider or facility was contracted with the carrier or make other arrangements acceptable to the commissioner;
  2. Provide substantial evidence of good faith efforts on its part to contract with providers or facilities. If a carrier is submitting an alternate access delivery request for the same service and geographic area as a previously approved request, the carrier shall provide new or additional evidence of good faith efforts to contract associated with the current request;
  3. Demonstrate that there is not an available provider or facility with which the carrier can contract to meet the commissioner's provider network standards; and
  4. For services for which balance billing is prohibited under RCW 48.49.020, notify out-of-network providers or facilities that deliver the services referenced in the alternate access delivery request within five days of submitting the request to the commissioner. Any notification provided under this subsection shall include contact information for carrier staff who can provide detailed information to the affected provider or facility regarding the submitted alternate access delivery request.
2. For services for which balance billing is prohibited under RCW 48.49.020, a carrier may not treat its payment of nonparticipating providers or facilities under this chapter or P.L. 116-260 (enacted December 27, 2020) as a means to satisfy network access standards established by the commissioner unless all requirements of this subsection are met.
  1. If a carrier is unable to obtain a contract with a provider or facility delivering services addressed in an alternate access delivery request to meet network access requirements, the carrier may ask the commissioner to amend the alternate access delivery request if the carrier's communication to the commissioner occurs at least three months after the effective date of the alternate access delivery request and demonstrates substantial evidence of good faith efforts on its part to contract for delivery of services during that three-month time period. If the carrier has demonstrated substantial evidence of good faith efforts on its part to contract, the commissioner shall allow a carrier to use the dispute resolution process provided in RCW 48.49.040 to determine the amount that will be paid to providers or facilities for services referenced in the alternate access delivery request. The commissioner may determine by rule the associated processes for use of the dispute resolution process under this subsection.
  2. Once notification is provided by the carrier to a provider or facility under (a) of this subsection, a carrier is not responsible for reimbursing a provider's or facility's charges in excess of the amount charged by the provider or facility for the same or similar service at the time the notification was provided. The provider or facility shall accept this reimbursement as payment in full.
(a) Except to the extent provided otherwise in (b) of this subsection, when determining the adequacy of a carrier's proposed provider network or the ongoing adequacy of an in-force provider network, beginning January 1, 2023, the commissioner shall require that the carrier's proposed provider network or in-force provider network include a sufficient number of contracted behavioral health emergency services providers.
1. When determining the adequacy of a carrier's proposed provider network or the ongoing adequacy of an in-force provider network, beginning January 1, 2027, a carrier that is making complete and timely payments of the covered lives assessment established in section 3 of this act is deemed to have an adequate provider network for the behavioral health emergency services referenced in section 4(2) of this act.

Section 7 ¶

The authority shall adopt rules and undertake actions necessary to ensure that behavioral health emergency services account funds appropriated to and expended by the authority are used in accordance with the conditions and limitations of chapter 48.--- RCW (the new chapter created in section 14 of this act).