Merit Behavioral Care Corp. v. State of Vermont Independent Panel of Mental Health Providers

Allen, C.J.

¶ 32. (Ret.), Specially Assigned, dissenting in part and concurring in part. Because I believe there is a dispute of fact as to whether Merit Behavioral Care Corporation had sufficient information to determine the medical necessity of Jane Doe’s treatment concurrent with her stay at the Austen Riggs Center, I dissent.

¶ 33. As a review agent, Merit is charged with “reviewing the appropriate and efficient allocation of mental health care services” for the purpose of recommending or determining whether such services should be provided, reimbursed, or covered. See 8 V.S.A. § 4089a(b)(4)-(5). Pursuant to 8 V.S.A. § 4089a(c)(5), Merit cannot make a determination “that care rendered or to be rendered is inappropriate” until it “has communicated -with the patient’s attending mental health professional concerning that.medical care.” Regulation 95-2 implements this statutory requirement. See Regulation of Mental Health Care Providers (Regulation 95-2) § 7B(1), 2 Code of Vermont Rules 21 020 045-5 (2000) (A review agent must “communicate with the client’s/patient’s attending mental health care provider about mental health care and any relevant medical care provided or to be provided, before the review agent determines that the care should be altered or is inappropriate.”). In making a coverage determination, a review agent is guided by written standards and criteria but it must “consider any unique or special circumstances of a client/patient before determining requested care is inappropriate.” Id. § 7B(7)-(8). After a review agent has obtained “all information needed for the review[,]” it must notify a provider of an adverse decision within two business days. Id. § 7B(6).

¶ 34. In this case, the record shows that Merit informed Austen Riggs shortly after Doe’s admission that it could not conduct a concurrent review of Doe’s treatment because Austen Riggs’ treatment plan did not fit Merit’s method of managing in-patient treatment. Merit asserted that *235it could not conduct a concurrent review in its usual manner because Austen Riggs did not share its assumptions that “each day needed to be reviewed and a patient should be discharged or at least stepped down to a lesser level of care as soon as clinically indicated.” Consequently, Merit informed Austen Riggs and Doe that it would approve Doe’s initial six-day stay and consider her claim for remaining treatment costs after retrospective review of her medical record.

¶ 35. Based on these facts, Merit argues on appeal that it was prevented from making a coverage determination concurrent with Doe’s stay at Austen Riggs because Austen Riggs refused to provide it with the information necessary to conduct a proper service review. Merit asserts that it would have violated Regulation 95-2 if, in the face of Austen Riggs’ refusal to communicate about Doe’s treatment, it had nonetheless advised Austen Riggs and Doe that the proposed treatment was inappropriate.

¶ 36. The majority rejects this assertion and concludes that summary judgment was appropriately granted for the State. See ante, at ¶ 27. While acknowledging that a review agent must “communicate” with a treatment provider and make its decision only after it has obtained “all of the information needed for the review,” the majority nonetheless concludes that Merit should have made its determination based on “the information that it had available.” See id. According to the majority, Austen Riggs’ acceptance of Doe as a patient and its requirement that she stay for a minimum of thirty days provided a sufficient basis to deny Doe’s claim for coverage as medically unnecessary. See id. The majority suggests that if Merit considered this information insufficient, it should have nonetheless denied Doe’s request for coverage and allowed her to challenge this decision before the Independent Panel of Mental Health Care Providers, a body that considers adverse decisions made by review agents. In this way, the majority asserts, it is protecting Doe from “suffer[ing] the consequences of a statutory violation resulting from a dispute between the mental health services review agent and one of its providers.” See ante, at ¶ 28.

¶ 37. The approach endorsed by the majority undermines the goals of the mental health services statute and ignores the statutory and regulatory requirements imposed on Merit as a review agent. See 8 V.S.A § 4089a(a), (c)(5); Regulation of Mental Health Care Providers (Regulation 95-2) § 7B(1), (6)-(8), 2 Code of Vermont Rules 21 020 045-5 (2000). Instead of protecting Doe and others like her, the Court’s decision provides review agents with an incentive to deny requests for coverage whenever they lack sufficient information to make a coverage determination. This contravenes the requirements set forth in 8 V.S. A § 4089a(c)(5) *236and Regulation 95-2, and it conflicts with the Legislature’s goal of fostering the practice of mental health services review as a “professional' collaborative process” designed to enhance the effectiveness of clinical treatment. See 8 V.S.A. § 4089a(a)(2).

¶ 38. It is important to note that Merit’s decision to “pend” its coverage determination was an adverse decision that Doe, Austen Riggs, or someone acting on Doe’s behalf with her consent, could have immediately-challenged through Merit’s internal appeal process and through an appeal to the independent panel. See Regulation of Mental Health Care Providers (Regulation 95-2) §§ 3(A)1; 12-13,2 Code of Vermont Rules 21 020 045-5,21020 045-8 (2000); 8 V.S.A. § 4089a(c)(7). An adverse decision is “a decision by a review agent not to certify or authorize payment for an admission, service, procedure or extended stay as requested by the client/patient, provider or representative of the client/patient.” Regulation of Mental Health Care Providers (Regulation 95-2) § 3(A)1,2 Code of Vermont Rules 21020 045-5 (2000). In this case, Merit did not authorize payment for Doe’s treatment concurrent -with her stay at Austen Riggs, despite Austen Riggs’ request that it do so. Had this decision been challenged, Doe would have known whether her treatment would be covered concurrent with her stay at Austen Riggs. This would have assured the effectiveness of 8 V.S.A. § 4089a(c)(5) and allowed the parties to avoid the predicament that concerns the majority. See ante, at ¶ 26.

¶ 39. The majority finds it “doubtful” that Merit’s decision to pend coverage was an adverse decision within the meaning of 8 V.S.A. § 4089a(c)(7), and asserts that the record nonetheless demonstrates the “inadequacy of such a remedy in response to a review agent’s failure to render a timely, substantive decision.” See ante, at ¶ 30. I disagree. Austen Riggs justified its decision to demand payment directly from Doe on the adverse nature of Merit’s decision to pend coverage. In its April 1997 letter to Doe asking her to pay for her own treatment, Austen Riggs asserted that “[a]lthough we-requested further approval of medical necessity, [Merit] declined.” Thus, it appears that, in Austen Riggs’ view at least, Merit’s decision to pend coverage constituted an adverse decision within the meaning of Regulation 95-2. At this juncture, Austen Riggs could have appealed Merit’s decision rather than asking Doe to pay for her own treatment.

■ ¶ 40. The majority does not explain why Merit should be punished for the amount of time that it took Doe to receive a final decision on her claim, particularly if one credits Merit’s argument that it lacked sufficient information to make a coverage determination concurrent with Doe’s treatment. The record shows that in December 1997 Austen Riggs *237requested that Merit approve coverage for the costs of Doe’s care. Merit rejected Austen Riggs’ request in January 1998, asserting that Austen Riggs had already been paid by Doe, and Austen Riggs was an improper party to submit a claim. Doe and her family then submitted a claim, which Merit denied in March 1998 after concluding that the “available documentation does not support the medical necessity of this level of care.” Merit conducted an internal appeal of its decision at Doe’s request, and affirmed its denial of her claim in January 1999. In April 1999, Doe appealed to the independent panel, which conducted a hearing and issued its decision in November 1999.

¶ 41. The record shows that Merit acted in a timely fashion once Doe’s request for reimbursement was filed. That it took the independent panel seven months to decide Doe’s appeal should not be held against Merit. In any event, the majority does not explain how this delay demonstrates the inadequacy of a remedy that would allow Doe or Austen Riggs to challenge Merit’s initial decision to pend coverage. An earlier appeal could have obviated much of the delay altogether.

¶ 42.1 disagree with the majority that the undisputed facts establish that Merit ultimately denied Doe’s claim on the same basis that it decided to pend coverage. See ante, at ¶ 29. In its May 1997 letter to Doe, Merit stated,

[bjecause of differences between us and Austen Riggs regarding our standards for utilization review, we have pended the remainder of your stay. We shall not be performing concurrent utilization review; however, following your discharge from their system of care, we shall review your medical record and determine insurance coverage following that review.

Merit ultimately denied Doe’s claim for reimbursement in March 1998 after reviewing the medical information that she provided and concluding that the “available documentation does not support the medical necessity of this level of care.”

¶ 43. As part of Merit’s internal appeal process, two outside doctors reviewed Doe’s claim and both recommended that coverage be denied. The internal appeals focused on Austen Riggs’ failure to establish compliance with requirements necessary to establish the medical necessity of inpatient care. These requirements, as identified by Merit in a March 1998 letter to Doe, included the following: (1) a patient must be seen and evaluated by a physician within twenty-four hours of admission and seen daily thereafter; (2) there must be a thoroughly documented treatment record; (3) active discharge planning must be initiated at the *238time of admission; and (4) daily assessments and active interventions must be completed by nurses, therapists, and physicians based upon the comprehensive treatment plan.

¶ 44. The first outside doctor recommended denial based on the absence of daily psychiatric follow-up. The second outside doctor, Dr. Susan Legacy, concluded that based on the available documentation, Austen Riggs’ treatment of Doe did not meet the necessary requirements for acute treatment, nor did it satisfy requirements for long-term residential treatment. Specifically, Dr. Legacy found no evidence that the following requirements had been met: evaluation by a physician within twenty-four hours of admission; daily documented contact with a physician thereafter, and documentation of contact with staff for therapy, groups, etc., which included daily assessments and active interventions by staff; and initiation of active discharge planning near the time of admission. Dr. Legacy also expressed concern with Austen Riggs’ general approach to treating Doe, explaining that Austen Riggs did not attempt to prevent Doe from becoming “hospital-dependent,” nor did it address the regression that frequently accompanies such dependency. For these reasons, Dr. Legacy concluded that Doe’s treatment between April and November 1997 did not meet “criteria for acute treatment at any level of treatment.” Based on the absence of evidence that Austen Riggs had created a treatment program that would allow Doe to eventually progress to community-based treatment, Dr. Legacy did not find sufficient documentation to support authorization of Doe’s treatment at Austen Riggs as long-term nonacute residential treatment.

¶ 45. The record indicates that Austen Riggs challenged Merit’s assessment that its treatment of Doe failed to comply with Merit’s guidelines. In a February 1999 letter to Merit, Austen Riggs asserted that Merit should reverse its coverage decision because it had complied with Merit’s requirements for inpatient care, including the requirement that Doe be seen daily by a physician. Austen Riggs identified, and sought to rebut, the following additional reasons underlying Merit’s denial of Doe’s claim: it had not provided Doe with an individualized treatment plan; its treatment had not been delivered by qualified licensed professionals; and Doe had not received treatment in the most appropriate manner as provided by Merit’s review criteria.

¶ 46. Thus, while the record reflects that Merit’s review of Doe’s claim for reimbursement focused on the application of Merit’s utilization review criteria, the undisputed facts do not support the majority’s assertion that Merit ultimately denied Doe’s claim based solely on information that it possessed at the outset of Doe’s treatment. Indeed, it seems unlikely that *239Merit could legitimately base a “medical necessity” decision on the undisputed facts identified by the majority — Austen Riggs’ acceptance of Doe as a patient and its requirement that she stay for at least thirty days. Among other factors, Merit must consider the unique or special circumstances of a client before determining that requested care is inappropriate. Thus, notwithstanding the fact that the treatment program provided by Austen Riggs was apparentlyinconsistentwithMerit’s standards for utilization review, Merit could not deny Doe’s claim on this basis consistent with Regulation 95-2. In any event, I believe that it is for the factfinder, not this Court, to determine whether Merit possessed all of the information necessary to conduct a service review and make a coverage determination concurrent with Doe’s stay at Austen Riggs. Therefore, I would reverse and remand the trial court’s grant of summary judgment for the State for a determination of whether Merit had sufficient information to determine medical necessity.

¶ 47.1 agree with the majority that the trial court erred in granting summary judgment for Austen Riggs and concur in that portion of the majority opinion. I am authorized to state that Justice Skoglund joins this dissent.