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Policy Report: Civil Commitment Under
Medicaid Managed Care
Methodology
The goal of this project was to explore how civil commitment
has been addressed in Medicaid managed behavioral health
care contracts. The methodology included three major
tasks: First, the literature on managed care, court-ordered treatment,
and the intersection of these two policy arenas was reviewed. Second,
in-depth interviews were conducted with policy experts to determine
their views on how Medicaid managed care contracts should (or should
not) address court-ordered treatment. Finally, interviews with stake-holder
representatives in nine States sought to ascertain how civil commitment
has been handled in each State’s Medicaid managed care contract.
The four States from which the most comprehensive information
was obtained have been included as case studies. Study methods are
described in further detail below.
Literature Review
The first task was to conduct an extensive
literature review on the relationship between
Medicaid managed care and civil commitment.
The search included traditional methods
of searching the published literature as
well as efforts to identify ongoing and
unpublished studies, organizations with relevant
knowledge and expertise, and materials
available on the Internet. Both primary
sources and previously prepared literature
reviews were examined.6 The starting point
was a base of extensive literature reviews
already available on the topics of managed
behavioral health care and civil commitment.
These existing sources were updated using a
variety of search engines for customized Internet searches. Once a draft literature
review was prepared, the various experts
interviewed (discussed below) were asked to
identify any relevant materials the search
might have missed.
The second step in the process was to
assess the relevance of the literature selected
to the specific topic of interest. Both
Medicaid managed behavioral health care
and civil commitment have received extensive
attention in the published literature and
other sources. However, with the exception
of the few sources discussed below, almost
nothing has been written about the relationship
between Medicaid managed behavioral
health care and civil commitment.
Managed care as a whole has been the
subject of great attention. A significant literature
on the topic of Medicaid managed
behavioral health care has also developed,
addressing a number of issues. Several
authors focused on the positive and negative implications of introducing a third party,
often a for-profit corporation, into the not-for-
profit public-sector mental health system.
Some concluded that the greater flexibility of
capitation funding produces an increased
number of community-based services, such
as expanded community supports, consumer-run
services, and crisis respite services
(American Managed Behavioral Healthcare
Association [AMBHA], 1998; Government
Accounting Office [GAO], 1999; Hadley,
1996). These services often are considered
more appropriate for individuals with mental
illnesses than is more costly inpatient care
(e.g., Feldman, 1992; Goldman & Feldman,
1992; Hadley, 1996).
Other authors, however, have questioned
the ability of the private managed care sector
to meet the broad-ranging and intensive
needs of this highly vulnerable population.
Managed care organizations (MCOs), they
suggest, are accustomed to managing risk for
employers whose workers are generally
healthy and need only occasional, acute
interventions. How well, they ask, will these
organizations be able to anticipate the service
needs of Medicaid clients (e.g., Bazelon
Center, 1995; Cuffel et al., 1996; Feldman et
al., 1997)?
Concerns about the impact of managed
care financing on public-sector service delivery
have led several mental health policy
researchers to explore key issues such as consumers’
access to services under managed
care (Hadley et al., 1992; Psychiatric News,
1997) and the quality and effectiveness of
those services (e.g., Cole, Reed, Babigan,
Brown, & Fray, 1994; Center for Health
Policy Studies, 1996; England & Vaccaro,
1991; Schlesinger, Dorwart, & Epstein,
1996). Concern about accountability has
contributed to the development of outcome measures, including assessments of the mental
health service system’s ability to maintain
consumers in the community, measures of
clinical change over time, and evaluations of
consumer service satisfaction.
Several organizations have published manuals
delineating how the State Mental Health
Authorities (SMHAs) and Medicaid agencies
can develop Statewide Medicaid managed
behavioral health care contracts (e.g., Bazelon
Center, 1995; Hall, Edgar, & Flynn, 1998;
SAMHSA, 1998). Issues discussed include the
relative merits of different financing mechanisms
(e.g., integrated or carve-out plans-see
Chapter 1), specific provisions to be included
in the contract (e.g., required coverage of certain
services; mandated quality assurance
mechanisms), and ways to ensure that consumers’
rights are maintained in the new system
(e.g., nondiscrimination policies, the
establishment of grievance procedures).
The literature on Medicaid managed care
includes very few references to civil commitment.
Similarly, the sizable body of literature
on civil commitment includes few discussions
of Medicaid managed care and almost none
of the effect of Medicaid managed care on the
commitment process. Much of the civil commitment
literature addresses the topic in relation
to the rights of people with mental illnesses,
particularly the right to obtain desired
and clinically appropriate treatment in the
least restrictive manner possible (see Bursten,
1986; Blanch, 1992; Campbell, 1997;
Coursey, Farrell, & Zahniser, 1991; Garrett &
Posey, 1993; Mancuso, 1997; among others).
Another frequently occurring theme in
articles on civil commitment is the highly
aversive character of the process. Sources of
concern included the sometimes harsh role of
the police, the emergency room waiting time,
and the trauma of appearing at a court hearing at which family members and others testify.
Regardless of the author’s position on
the necessity for or appropriateness of civil
commitment, the literature was in accord
that the civil commitment process should
and could be conducted in a more humane
manner (American Psychiatric Association
[APA], 1998; Garrett & Posey, 1993; Lefley,
1993).
Another theme in the literature on civil
commitment is the need for further research
on the effectiveness of involuntary treatment.
Many mental health services researchers have
explored the clinical effectiveness of civil
commitment to inpatient as well as outpatient
settings (e.g., Carroll, 1991; Hiday,
1988, 1992; Geller, 1995; Maloy, 1996;
Monahan, Hoge, Lidz, & Eisenberg, 1996;
Nicholson, Ekenstam, & Norwood, 1996;
Swartz, Burns, Hiday, George, Swanson, &
Wagner, 1995; among others). However,
these studies have yet to lead to a consensus
on the most appropriate direction for mental
health policy. The difficulty is due in part to
the difficulty of designing rigorous research
on such a sensitive and controversial topic,
and in part to the strongly divided feelings of
the various stakeholders7 (Policy Research
Associates, 1998; Telson, Glickstein, &
Trujillo, 1999).
While these bodies of literature enhance
understanding of both Medicaid managed
care and civil commitment, little in the literature
addresses the relationship between the
two topics. Indeed, only two8 primary sources
discuss how civil commitment is being or
might be undertaken under Medicaid managed
care. In 1995, for example, the Bazelon
Center for Mental Health Law published
Managing Managed Care for Publicly
Financed Mental Health Systems, a primer
on the policy implications of moving to public-sector managed care financing. Among the
issues discussed in the booklet are the merits
of different financing structures (e.g., full or
partial carve-outs, integrated approaches), the
protection of consumers’ rights, and the
establishment of quality assurance measures.
In addition, the publication offers some discussion
on civil commitment, offering several
steps to take to avoid adverse consequences
for people with mental illness. The steps discussed
include the importance of requiring
the MCO to assume fiscal responsibility for
civilly committed individuals (in order to
avoid a cost-shifting incentive); the development
of an array of alternative services within
the community, such as crisis residential
programs; and the requirement that consumers
be active participants in treatment
decisions, particularly regarding any treatment
plan expressed in an advance directive.9
The Bazelon Center also has examined the
importance of expanding and clearly defining
the meaning of "medical necessity" in
Medicaid managed care contracts (see
Bazelon Center, 1998). Because the "medical
necessity" of a clinical intervention may be
subject to wide interpretation, this issue has
long been a point of contention within a
managed care environment (see Ford, 1998).
Bazelon suggests that the standard medical
model of treatment is not appropriate for
public-sector clients with mental illness; yet a
definition lacking clarity might leave the
MCO with excessive latitude to deny treatment.
Although denying treatment may help
control costs, the authors note that, in the
absence of timely behavioral health intervention,
an individual with mental illness may
deteriorate to the point of civil commitment
to an inpatient facility. The authors recommend
an enhanced definition of medical
necessity designed to protect plan enrollees
from such adverse consequences.
Attorney and mental health policy expert
John Petrila has been a second invaluable
source of information. He has written two
journal articles directly addressing civil commitment
under Medicaid managed care. In a
1995 article, Petrila argued that if contracts
fail to address an MCO’s fiscal responsibility
for civilly committed enrollees-particularly
in those cases where court commitments are
made to IMDs, such as State hospitals-the
MCO can use the civil commitment procedure
as a de facto "stop-loss" for high-cost
consumers. Petrila encourages adoption of
specific contract provisions around payment
responsibility, including provisions to preclude
cost-shifting by the MCO.
These issues were reiterated 3 years later
in 1998, when Petrila examined the often
conflicting relationship between the judiciary that may remand an individual to treatment
and the MCO that must assume related
costs. He posits that the interrelated roles of
the MCO and the judiciary dictate that they
engage in open dialogue to assess alternatives
to hospitalization that not only would be
more effective for the person with mental illness,
but also would allow cost control by
the MCO (Bazelon, 1995, 1998; Petrila,
1995, 1998).
Interviews with Experts and
Stakeholder Groups
A number of individuals and organizations
with expertise in mental health law and policy
were asked to participate in a semi-structured
telephone interview on the relationship
between Medicaid managed care and court-ordered
treatment. Eight of the individuals
or groups contacted agreed to be interviewed;
others declined, indicating knowledge
of either managed care or court-ordered
treatment, but not both. With the respondents’
permission, the interviews were tape-recorded
and transcribed for thematic analysis.
In addition, these individuals commented
on the draft literature review, providing additional
sources of information or commenting
on the literature review’s representation of
the issues. Their feedback has been incorporated
into this report.
Interviews with State Representatives
This component of the project was to identify
a number of States’ approaches to designing
Medicaid managed care plans and, in
particular, to addressing issues related to civil
commitment within those plans. A primary
source for this effort was the most extensive
existing review of Medicaid managed care
contracts available-a three-volume compendium
produced by the Center for Health Policy Research at George Washington
University (GWU). Sara Rosenbaum and her
colleagues at GWU reviewed 54 Medicaid
managed care contracts, at least 12 of which
were designed specifically for managed
behavioral health care (Rosenbaum, Smith,
Shin, et al., 1997). The three-volume set
offers detailed information on diverse aspects
of the contracts, such as enrollment procedures,
coverage and benefits, definitions of
medical necessity, quality assurance data
reporting requirements, and provisions related
to court-ordered commitment.
Based on information contained in this
seminal GWU review and on the recommendations
of interviewees, nine States were
identified as targets for participation in the
evaluation of the relationship between
Medicaid managed care and involuntary
treatment. Seven of the States-Arizona,
Florida, Iowa, Massachusetts, Minnesota,
Utah, and Wisconsin-were identified as
potentially having language in their managed
care contracts that addressed the issue of
court-ordered commitment. Two additional
States-Maryland and Colorado-were
selected specifically because their contracts
did not appear to contain provisions regarding
court-ordered services in the managed
care environment.
For each of these nine States, in-depth telephone
interviews were conducted with an
average of three individuals per State. The
interviewees were selected from the ranks of
State policymakers (at the Medicaid agency,
the State Mental Health Authority [SMHA],
or both), consumer advocates, family members,
providers, and MCO representatives.
Respondents were asked their perceptions of
Medicaid managed care, civil commitment,
and possible connections between the two. For
those interviewees representing either the State Medicaid Agency or SMHA, specific questions
related to managed care contract language and
its development were asked,9 such as: Was the
contract language identified in the GWU
report still current?10 If so, how had that contract
been developed? If not, what had led to
the changes? Had the incidence of civil commitment
changed since Medicaid managed
care had been instituted in the State? Did the
contract clearly specify the relationship
between the courts and the MCO? How were
recent experiences in the State informing development
of future contract language? With the
respondents’ permission, interviews were tape-recorded
and transcribed. These transcripts
were shared with nearly all respondents to verify
the accuracy of the information and permit
additional insights.
Case Studies
Although some information was gathered in
each of the nine States about the Medicaid
managed care contract provisions for civil
commitment, in-depth case studies were
developed only for Wisconsin, Colorado, Iowa, and Minnesota. These four were selected
based on the comprehensive information
provided by interviewees. That information
included any administrative data related to
civil commitment or inpatient hospitalization,
interviewees’ participation in the development
of the current contract language, as well as
their ability to recall experiences that shaped
the current contract provisions. In addition,
Iowa and Colorado were selected because
their original Medicaid managed care contracts
explicitly addressed an array of issues
that might affect civil commitment; Wisconsin
was selected because of its more limited provisions.
Minnesota was selected because the
Medicaid managed care contract incorporated
specific provisions only after initial implementation,
following the consequences of the initial
failure to address the issue.
Study Limitations
The reader should be aware of several limitations
in both this study and its findings. First,
only the issue of civil commitment under
Medicaid managed behavioral health care
contracts is addressed. Consumers’ experiences
with private-sector managed care companies
and civil commitment undoubtedly
may vary from the accounts described herein.
Thus, the findings reported here cannot be
generalized to either private managed care
for behavioral health services or any other
form of managed care financing.
Second, almost no quantitative data was
available that specifically documented the
incidence of civil commitment, under either
Medicaid fee-for-service or managed care in
the nine States. Although indicators, such as
number of hospital admissions, lengths of
stay, and re-admission in a 6-month period
were collected in most locales, only Colorado
was able to provide longitudinal data on the frequency with which behavioral health consumers
were court-ordered to receive treatment.
Thus, findings are based largely on
anecdotal information and on data related to
inpatient care-a tenuous proxy for court-mandated
services.
In addition, few individuals appeared to be
aware of a relationship between Medicaid
managed care contracts and the incidence of
civil commitment. That was as true of expert
interviewees as it was for many of our State
stakeholder contacts. In fact, awareness of
trends in the incidence of civil commitment
may be limited to a few select stakeholders in
any system-particular judges or individuals in
charge of prepetition screening. Such particularly
expert State-level key informants were not
always readily identified or accessible. Thus,
each State overview is related, in part, to the
capacity to reach and interview these key informants
within the time constraints of this study.
Finally, this report does not specifically
address issues related to outpatient commitment
within a Medicaid managed care framework.
As with civil commitment to inpatient
settings, interviewees offered few anecdotes,
and no State was able to provide quantitative
data on outpatient commitment. Moreover, the
concept of "outpatient commitment" is subject
to tremendous variability across jurisdictions:
some States define it as "trial release" from an
inpatient setting; others have established an
outpatient commitment procedure by discrete
legislation. Given the complexity of the issue
and the fact that other mental health services
researchers are exploring this topic,11 thorough
exploration of the relationship between
Medicaid managed care and outpatient commitment
is beyond the scope of this project.
6 These included, among others, bibliographies developed
by the National Technical Assistance Center
for State Mental Health Planning, the National
Resource Center on Homelessness and Mental
Illness, and the Mental Health Policy Resource
Center (now a part of the Lewin Group).
7 The Bellevue (New York) Outpatient Commitment
study resulted in just such a controversy. While
study findings revealed no statistically significant
differences between the treatment (outpatient commitment)
and control (no commitment order)
groups (Policy Research Associates, 1998), physicians
at the hospital sharply criticized both the
findings and the study design that yielded these
results (Telson, Glickstein, & Trujillo, 1999).
8 The Center for Substance Abuse Treatment (CSAT)
Technical Assistance Paper 22 (1998) is an additional
reference that briefly discusses the importance
of addressing civil commitment issues within
the Medicaid managed care contract. The points
raised in this one-page discussion, however, mirror
those made both by the Bazelon Center and John
Petrila, two sources most informative on the study
topic. Consequently, the manuscript is not discussed
in any detail in this section.
9 Advance directives are patient- or consumer-created
documents that spell out an individual’s desired
treatment intervention in the event of incapacity
that precludes participation in an emergency decision-
making process. Although advance directives
are discussed briefly toward the end of this report,
additional information can be found in a policy
paper published by the Bazelon Center (1999).
10 Several respondents reported that contract language
used by the study team was not current.
For example, Colorado did have specific contract
language for court-ordered commitment, whereas
Utah did not. Contracts had either been modified
or were in the process of being rewritten, often
because some of the policy issues discussed later
in this report had emerged as troublesome for the
State. In addition, there may have been an issue
of what contract documents were reviewed; for
example, many States incorporate the request for
proposals (RFP) in their contracts by reference. It
was not clear that all RFPs had been reviewed for
the GWU study. Thus, while reviews such as the
one conducted by the Center for Health Policy at
GWU offer policy analysts an extensive array of
information, the rapid rate at which public health
systems are undergoing change limits the usefulness
of such reports. This is offered not as a criticism of
the efforts of the authors, but rather as a caveat for
other analysts who are using similar sources of
information.
11 William Fisher at the University of Massachusetts
Medical School reportedly is examining data related
to this issue.
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