Differing views of ‘behavioral health’

Pre-authorization and ‘hold harmless’ clauses

Regarding Dr. Nasrallah’s editorial “Pre-authorization is illegal, unethical, and adversely disrupts patient care” (From the Editor, Current Psychiatry. April 2020, p. 5,10-11), I am so glad he wrote about this egregious, illegal, unethical, and grossly disruptive practice. I would like to suggest an angle to our organized response to this trend based on my experience as a member on the Committee on Managed Care of the American Psychiatric Association from 1991 through 1993 as a Burroughs Wellcome Fellow. The chair of the Committee and President and CEO of Sheppard Pratt Health System at the time, Steve Sharfstein, MD, MPA, underscored the importance of not signing a “hold harmless” clause on any contract whatsoever.

Recently to my surprise, while navigating a pre-authorization request for a young patient with bipolar disorder who had accepted the inclusion of lurasidone in his treatment regimen while hospitalized, I found that the CoverMyMeds Business Associate Agreement is required for a user to accomplish pre-authorization online. Having a little extra time for due diligence that day, I read this lengthy agreement carefully. The CoverMyMeds user agreement purports not to offer “medical advice, does not determine medical necessity, insurance coverage or copays and does not otherwise engage in the practice of medicine” (see www.covermymeds.com/main/about/privacy/tos/). Interestingly, the agreement goes on to purport that the whole process is for informational purposes only, not a substitute for clinicians, professional medical judgment, or for individual patient assessments and examinations. Of course, another factor is that the information provided by the process is “solely at the user’s and health care provider’s own risk.” Finally, the agreement requires the user to agree to “indemnify, defend, and hold harmless CoverMyMeds and its affiliates … from any demands, claims, damages, liabilities, expenses, or harms (including attorneys’ fees) arising out of or related to your use of our Services or breach of these Terms of Service.”

Throughout my 25 years of solo private practice, I have refused to sign hold harmless clauses and I refused to sign the CoverMyMeds user agreement. I have made it my practice never to obtain pre-authorization unless the patient is with me in the room during an appointment because the process of navigating pre-authorization does become part of the treatment, however unfortunately. As an alternative, for my patient with bipolar disorder, I was able to use a phone number to talk to a representative of the pharmacy benefit plan that was contracted with CoverMyMeds. Without signing on to be a Business Associate, we accomplished the goal of continuing with the medication as recommended and implemented for 2 preceding months (often pre-authorization actually means continuing authorization, doesn’t it?). I believe if all psychiatrists were to adopt this kind of stance, we could make a change. I know there are anti-trust considerations involved in fee negotiations, but when it comes to the egregious practices of managed care, pre-authorization, and hold harmless clauses, it seems to me that we can mount a counteroffensive to great effect.

Further, I want to stand in strong support of Dr. Nasrallah’s editorial “Stop calling it ‘behavioral health’: Psychiatry is much more.” When I began my first job post-fellowship, I was alarmed to find that our outpatient offices had been named a “counseling center.” Due to such misleading, stigmatizing characterizations, as Dr. Nasrallah pointed out, we have only slid further down the slope into the realm of “providers of behavioral health services.” As an old hand working psychiatric locum tenens told me, we psychiatrists had long since missed the chance to “band together like musk oxen” to defend our profession.

However, I believe it is not too late. With the strength of Dr. Nasrallah’s leadership and a more overt, collective stubbornness coupled with an undying commitment to excellence, we can and must push hard against the insurance and hospital entities, which continue to profiteer from the practice of medicine without a license—using the tools of hold harmless clauses, anti-trust laws in their favor, and misinformation about the scope and efficacy of practicing psychiatry per se. The challenge is to figure out exactly how to proceed.

Although some manage to thrive in independent practice, collectively our struggle seems considerable, but not insurmountable.

David B. Robinson, MD, MPH
Diplomate, American Board of Psychiatry and Neurology in Child, Adolescent and Adult Psychiatry
Fellow, American Psychiatric Association
Private psychiatric practice
Alaska Psychiatric Concepts
Juneau, Alaska