Policy Report: Civil Commitment Under
Medicaid Managed Care
Appendix
This Appendix includes case studies for four of the nine States
originally selected for this project. These four—Wisconsin,
Colorado, Iowa, and Minnesota—were selected on the basis
of the level of detailed information able to be obtained at each of the
sites. This information included State profiles from the Substance Abuse
and Mental Health Services Administration (SAMHSA) “Managed Care
Tracking System” Web site, administrative data related to civil commitment
or inpatient hospitalization, interviewees’ participation in the
development of the current contract language, and interviewees’ ability
to recall experiences that shaped the current contract provisions. In addition,
we attempted to select States that had different experiences around
the development of contract provisions. Thus, Iowa and Colorado were
selected because their original Medicaid managed care contracts explicitly
addressed the array of issues that might affect civil commitment.
Wisconsin, by contrast, was selected because civil commitment is
addressed in its contract, but in a more limited fashion than either Iowa
or Colorado. And, finally, Minnesota was selected because specific provisions
were adopted in its contract only after concerns had been raised
about how civil commitment was being used within the Medicaid managed
care framework. A synthesis of the findings from these four case
studies is included in Chapter IV.
Case Study A
Wisconsin Medicaid Managed Care
Contract and Civil Commitment
Background
Wisconsin’s Medicaid health maintenance
organization (HMO) program was implemented
statewide in September 1994 under
a Section 1915b waiver. The Medicaid
HMO program is an integrated plan that
covers physical health as well as acute mental
health and substance abuse services.
Enrollment is mandatory for all adults and
children who are in any of the following
categories: Aid to Families with Dependent
Children/ Temporary Assistance for Needy
Families (AFDC/TANF); pregnant women
and children up to 165 percent of the
Federal poverty level (Healthy Start); and
those dually eligible for Medicaid and
Medicare. Under the terms of this plan,
Medicaid contracts with 19 HMOs licensed
by the State of Wisconsin. The HMOs
receive a full capitation payment for all
medical services covered by Medicaid.17
Capitation rates vary by region and there
are 10 rate regions across the State.
In addition to the HMO program, there
are six other managed behavioral health
care plans in the State, each of which covers
a specific subpopulation and has a different
administrative arrangement. For example,
under a 1115 waiver, the State implemented
BadgerCare in 1998, a statewide integrated
plan that serves uninsured and underinsured
families. Enrollment in this plan is mandatory
for qualifying families. The five remaining
Medicaid plans are all voluntary enrollment
and include two behavioral health stand-alones
(Children Come First and WrapAround
Milwaukee, which serve children with severe
emotional disturbance in Dane County and
Milwaukee County, respectively) and three
integrated plans (Independent Care and the
Wisconsin Partnership Program, both of
which cover acute behavioral health services
to the Supplemental Security Income [SSI]
population, and the Program for All
Inclusive Care for the Elderly, which covers
acute behavioral health services for frail
elderly persons).
Despite enrollee and administrative variations,
the provisions of the different contracts
are the same. Specifically, in each
plan, the mental health services incorporated
into the capitation rate include inpatient
care, IMD services for individuals under 21,
crisis services, mental health support (e.g.,
community support programs, targeted case
management), pharmacy services, rehabilitation
services, residential care (e.g., in-home
therapy), and outpatient services.
Has the State addressed civil commitment in its
managed care contract?
All of the contracts in Wisconsin require that
the MCO pay for any enrollee who is court
committed to treatment. The State Medicaid
representative noted that the primary rationale
for including this contract provision was
to avoid the development of divided funding
streams:
When we moved from a county-based
system to a managed care system, we
expected the managed care agency to
take over at the same cost as the county,
so…we do require that commitment
or court services are paid for by the
HMO.…When we made the switch in
funding, the intent was that all of the
services be provided under the managed
care [plan]. It was one total package, it
was not broken up or funding left in
certain places.
Does the contract clearly specify whether and under
which circumstances the MCO is responsible to pay
for court-ordered (services)? What was the rationale
for including this provision?
Two key provisions are included in the
Wisconsin Medicaid managed care contracts.
First, as noted above, the MCO must
pay for any court-ordered services (with one
exception, which is discussed in greater
detail below). Second, Article 3B12 of the
contract specifies that payment cannot be
denied because the treatment resulted from a
“legal” or “administrative” decision rather
than a medical one. This is an issue from
commercial insurance law that has emerged
as a potential loophole for MCOs in many
of the States in our study. By including these
explicit contract provisions, Wisconsin has
reduced the MCOs’ potential perverse incentive
to let consumers decompensate and be
civilly committed to treatment.
Recent legislation in Wisconsin concerning
sexual predators, however, has led to a
marked increase in the number of individuals
being civilly committed in the State.
Under Chapter 980, sexual predators who
have completed their prison sentences auto-
matically receive a civil commitment to an
inpatient mental health facility for an indefinite
length of time. The legislation was
expected to affect between four and six
people per year, although one interviewee
reported that the Chapter 980 population
is “already up close to 300.” The treatment
costs associated with these court-committed
consumers, however, are not the responsibility
of the MCOs, but are picked up by the
State.
Does the contract clearly specify where court-ordered
hospitalization will take place and whether the MCO
is responsible to pay for IMD care? If so, how is it
addressed and what led to the adoption of the
provision(s)?
The contract provisions do not specify
where court-ordered treatment will take
place, but do indicate that the MCO has
to pay only for services delivered by in-network
providers. Because judges do not
always know which providers are in-network
in a particular area, there have apparently
been some difficulties. One of our interviewees
said the following:
[The judges] are familiar with the civil
commitment process…[but they are]
less aware of how the payments occur.
And there are a lot of issues around
where a commitment is made.…In
some instances [the commitment is] to a
facility that’s not covered by the particular
HMO in the area. It causes some
problems in the long run.…If the
provider is not in their network, [the
HMO] is not required by law to pay
for the services. So if a judge would
commit an individual to a hospital,
then the HMO has taken the position
that they won’t pay for it…[and] the
county ends up paying.
While the lack of information about network
providers reportedly has “caused some
real problems” throughout Wisconsin, the
Medicaid IMD exclusion has been relatively
unproblematic. Under the contract terms, the
MCO is not responsible for IMD care for
adults. When asked what would happen if a
judge ordered a consumer into an IMD (such
as a State hospital) for treatment, one
respondent made the following reply:
Usually the courts don’t do that. If it
was an adult court ordered in an IMD,
I doubt that we would order the HMO
to provide that service since it’s not a
Medicaid covered service. But there
would be nothing that would prevent
the HMO from covering that service if
they wanted to, because we do allow the
HMOs to cover non-Medicaid services.
Although the HMOs had been given such
permission, the respondent was unable to
answer with any certainty the extent to
which the HMOs have actually picked up
IMD costs.
Regardless, the infrastructure in Wisconsin
would seem to discourage the use of State
hospitals as the loci for inpatient treatment.
There are only two State facilities in
Wisconsin, and they have only 750–800 beds
between them. One respondent reported that
forensics patients—many of whom, as noted
earlier, fall under the Chapter 980 statute—
take up most of these beds.
Thus, the issue around civil commitment
and managed care coverage of inpatient
treatment is related less to the IMD exclusion
in Wisconsin than to the commitment of
a person to a network provider. Interviewees
report that education efforts are ongoing
with judges throughout the State in an
attempt to alleviate these difficulties.
Does the contract address issues related to what
services will be deemed medically necessary and
how this determination will occur? Why were the
particular provisions adopted?
Under the Administrative Code for
Wisconsin’s Department of Human and
Family Services (HFS 101.03) “medical
necessity” is defined as “a medical assistance
service…that is required to prevent, identify,
or treat a recipient’s illness, injury or disability.”
In addition, the service is required to
meet such broad standards as being “consistent
with the recipient’s symptoms,” “appropriate
with regard to generally accepted standards
of medical practice,” and “of proven
medical value or usefulness and…not experimental
in nature.” This standard definition
of medical necessity is included in
Wisconsin’s Medicaid managed care contracts
by reference to the administrative
code.
None of the individuals interviewed
described any difficulties around the determination
of medical necessity with regard to a
consumer’s illness. In short, there was apparently
little disagreement between the courts
and the MCOs that consumers had a definable
illness and, as such, were in need of
treatment. More problematic has been determining
the kinds of services that constitute
“medical” interventions for this particular
population. As representatives of other jurisdictions
(e.g., Iowa) in this study have noted,
the medical model of treatment—from which
the above definition is derived—may not be
appropriate with this population of consumers.
Interviewees in Wisconsin remarked
on the conceptual difficulties this issue creates
between the courts and providers on the
one hand and the MCOs on the other:
The community support program is a
medical assistance service that can be
paid for [by the HMOs]. However, coneptually
that’s [a] problem that the
HMOs have trouble dealing with
because it’s an area the State would
consider more of a social service. And
when we talk about case management
they’re talking about something entirely
different, and we also have problems
when we talk about outpatient services…[
it’s] a much different term than a
medical group uses as outpatient.
In spite of this difference in meaning and
the resulting problems, it was not anticipated
that this definition would be refined or
changed in any significant way.
The one modification that has been made
concerned the MCO’s fiscal responsibility for
medically necessary outpatient services.
Private insurance law allows insurers to
place a dollar limit on how much outpatient
treatment will be paid for under the terms of
the contract. In Wisconsin, commercial
insurance caps outpatient coverage at $7,600
per year, whether or not the consumer is in
need of further treatment. Because of potential
“confusion” over the legal rights of commercial
insurers versus Medicaid MCOs, the
contract was rewritten to require the MCO
to provide all services that were medically
necessary, regardless of the cost of those
treatments.
Does the contract require the types of community
support services necessary to maintain client
functioning? Are there other provisions intended to
ensure the availability of adequate community
supports?
The contract details the types of services
within the community that are covered under
the terms of the contract, but does not
explicitly require the MCO to make those
services available to enrollees. Some interviewees
described community support systems in Wisconsin as having limited service
capacity, which in turn may contribute to the
civil commitment of some individuals to
inpatient treatment:
In Dane County, the waiting list to get
into a CSP [Community Support
Program] is three years.…When a person
has to wait these long periods of
time for a CSP or services, the mental
health condition that they have may
very well regress from lack of treatment
or what they have to deal with in a
community. They’re not equipped to
have the support they need to give them
the coping skills, whatever they need to
remain out here [in the community].
And then you have people going back
and it’s a continuous revolving door.
As with other areas of the contracts in
Wisconsin, none of the respondents mentioned
any future contractual changes
regarding the role of the MCO in enhancing
services within the community in the State.
Does the capitation rate include the cost of court-ordered
services? Is there some form of incentive in
the contract that would encourage the use of civil
commitment?
With the exception of IMD expenses, the
capitation payments to the MCOs include
the cost of court-ordered services. Moreover,
because the contract requires the MCO to
pay for all court-ordered services, Wisconsin
has reduced the incentive for the MCOs to
use the civil commitment process as a way to
shift high-cost consumers onto another
payer. As noted above, some costs may be
shifted inadvertently because of a judicial
decision about the location of inpatient treatment.
It appears, however, that such decisions
are the result of judicial misinformation,
rather than cost-shifting pressures from
the MCO.
How do stakeholders believe these contract
provisions (or lack thereof) have affected the use of
civil commitment within each system?
All of the managed care contracts in
Wisconsin contain a provision that requires
the MCO to pay for court-ordered services.
Despite this broad inclusion, interviewees
reported that some MCOs had difficulty
comprehending exactly what that provision
meant for their organization:
The main problem that occurred is that
the managed care organizations had not
typically dealt with the commitment
issues at all…so it was a whole new
field for them to get into paying for
commitment services…and a lot of
other services that were seen as social
services.… If you have managed care
organizations that are essentially insurance
companies, they don’t know what
you’re talking about when you talk
about civil commitment and some other
services.
These conceptual difficulties notwithstanding,
respondents reported that the frequency
with which the civil commitment
process is used throughout the State “has
remained pretty much constant.” Only the
passage of the Chapter 980 legislation
appears to have had any dramatic (and
unanticipated) impact on the number of
individuals who are civilly committed to
treatment.
What has changed, and presumably for
the better, is the way in which some of the
regional courts order individuals into treatment.
Said the interviewee from the State
Medicaid office:
In Milwaukee County, I think
[Medicaid managed care] has made a
difference in how the judges do the
court orders and how that process
occurs, particularly in child protective
services. They’re much more cognizant
of who the HMO’s provider networks
are. They’re much more careful to
assure that the HMO’s provider of
choice is ordered in the court order or
giving them the flexibility.
In short, the judges now work more closely
with the HMOs to determine how to best
serve the consumer and in a way that she or
he does not lose coverage by accepting out-of-
network treatment.
Are there anticipated changes to future managed
care contracts to limit the use of civil commitment?
What experiences have prompted these potential
modifications?
None of the respondents reported any significant
changes to future contract provisions;
rather, they anticipate “fine-tuning” of what
is already in place.
17 Two noted exceptions are prenatal care coordination
and common carrier transportation.
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