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Opioid Abuse in America: Can Your Employer Health Plan Be Part of the Solution?

There is an opioid misuse, abuse, and addiction crisis in this country, and it impacts many employees and their family members. A substantial percentage—perhaps as high as 40 percent based on recent reports—of opioid addicts are covered by employer group health plans.

Often, opioid problems begin when a legal drug is prescribed and filled by licensed professionals for pain relief following an injury or surgery. A health plan typically covers most or all of the prescription drug costs, so long as it is deemed medically necessary for the employee. Refills and future prescriptions are typically covered as well.

The enactment of the Comprehensive Addiction and Recovery Act (CARA) in 2016 was expected to reduce costs of and increase access to drug abuse treatment by increasing the number of medical professionals (including nurse practitioners and physician’s assistants) providing these services. This law defined addiction as a chronic medical condition, reflecting a cultural shift in the way drug addiction is viewed and likely improving the chances that patients will seek and receive treatment. An updated version of CARA, along with multiple other bills relating to opioid addiction and misuse issues, is pending in Congress and would direct spending of the $6 billion in federal funds recently allocated to this crisis.

Aside from the staggering costs associated with treating drug addiction generally, there are ancillary health consequences for addicted individuals. Many of those consequences increase the utilization of health insurance in ways that may not be overtly related to the ongoing addiction.  Even though the initial cost of treating addiction is often greater, high ancillary health care costs for individuals with addictions have led insurers to reconsider health plan features that might contribute inadvertently to the excessive use of opioids or might impede treatment for addiction. Insurers have added more effective addiction mediation approaches that may have broader cost-saving implications for health plans as the affected population on the whole becomes less susceptible to higher mortality and ancillary health risks.

Against this backdrop, employers may want to consider whether their health plans and other benefits offerings are inadvertently contributing to the opioid addiction problem or may assist in developing a comprehensive solution.

What does an employer health plan cover for opioid addicts?

Most health plans cover the treatment or counseling an employee seeks when facing addiction.

Employer-sponsored group health plans are required to provide coverage for substance use and abuse treatment programs to the same extent that coverage is provided for medical and surgical benefits. Although many health plans provided coverage for addictions even absent legal mandates to do so, the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) and the Patient Protection and Affordable Care Act of 2010 (ACA) impose broad coverage requirements on employer group health plans. As a result, most insured employees and their families have coverage available for opioid abuse treatment. 

Mental health and substance use coverage are essential health benefits that must be offered by individual and small group insurance plans. Group health plans cannot impose greater financial or treatment limits on these benefits than they do for standard medical and surgical benefits.  Employers may want to scrutinize any limit on the scope or duration of coverage for substance use treatment or any limit on the frequency of treatment, such as a limit on the number of visits or days of treatment that will be covered. Those limits may run afoul of the parity requirement.

Many employers also offer an employee assistance program (EAP) that provides counseling for addiction, as well as support for employees with family members who suffer from an addiction.

Are employees seeking treatment through the employer’s health plan and EAP?

Making these programs available is critical, but employers can also ensure they remove any real or perceived barriers that may keep employees or their family members from seeking treatment. Do employees know help is available? Are they assured the treatment will be confidential? Is there a stigma attached to participating?

Rules under the federal Health Insurance Portability and Accountability Act of 1996, commonly known as HIPAA, impose strict privacy and security requirements on individually identifiable health information used by employer health plans and EAPs. Under these rules, employers may not access treatment information and may not use such information for any employment purposes. Only employees specifically assigned to manage the benefit plans may have access to claims information, and they are strictly prohibited from disclosing that information or using it for any purpose unrelated to the health plan. The health plan itself may use the information as needed to ensure claims are properly paid and the plan is operating correctly.

Employees may need a reminder of these protections in order to feel comfortable accessing opioid treatment and support services. The standard notice of privacy practices typically would not address these programs specifically, and employees often file these away with other standard legal notices. It may help to include a reminder in any communication relating to the EAP—or any communication about addiction recovery benefits—that such benefits are covered by the plan and that information collected is maintained confidentially and securely, and the employer cannot access the information shared with counselors. The reminder may have an impact on employees who are considering seeking some form of assistance but are reluctant to do so due to the cost of treatment and those who are apprehensive about their privacy being protected if they submit claims to the company health plan.

What aspects of a health plan could keep employees from seeking treatment?

Many plans include features that may discourage employees from seeking treatment. In the case of opioid misuse treatment, these features are sometimes designed to effectively manage claims and curb abuse. For example, some plans require a patient to first seek outpatient treatment before an inpatient service will be preauthorized. An employer can take that approach if it does so for medical and surgical benefits, unless there are no comparable outpatient programs available in the patient’s area.

Also, prior authorization may be required before admittance to an inpatient facility. If the plan allows authorization by phone for a medical or surgical inpatient stay, it must do so for a mental health or substance abuse inpatient admission as well.

Starting in 2016, insurance industry leaders began to reevaluate the use of prior authorization of anti-opioid addiction medications. Removing prior authorization requirements for anti-addiction medications has been found to reduce significantly the number of opioid prescriptions, and it also removes one potential barrier to treatment. Coupling that change with strict quantity limits on opioids and other case management tools has resulted in an increase in patient use of behavioral healthcare benefits. Insurers have formed special investigation units to identify and monitor covered individuals who may be at risk of addiction, as well as assigned social workers to affected families and established hot lines to take calls on this issue.

Do employees have access to a treatment provider?

Another thing to consider is whether substance abuse treatment facilities are readily available where employees live and work. Does the plan network include options? If it does not and the employee is forced to go “out of network,” is there a penalty for doing so? Do employees live in rural areas or small towns where they are reluctant to seek treatment due to fear of discovery? Does the employer offer an on-site or off-site clinic that could provide these services in a convenient, easy-to-access manner? Would employees feel safe using such a clinic?

Telemedicine offers another option for employees who are reluctant to walk into a counselor’s office or group therapy. Many employer plans include telemedicine options that allow doctors to prescribe medication virtually and provide counseling services. From a legal perspective, an employer may want to determine whether such an arrangement is in compliance with state laws, which sometimes require the initial encounter to be in person. Additional bills are pending in Congress that would further expand access to telemedicine for opioid abuse treatments.

In addition, the employer will need to coordinate employee cost-sharing for both telemedicine encounters and clinic services with any high-deductible health plan offering to ensure that employees who wish to contribute to a health savings account (HSA) can remain eligible to do so. Generally, if telemedicine services or treatment at the employer’s on-site or off-site clinic is for non-preventive care services and provided to employees free of charge before the employee has met the deductible the employee may lose eligibility to contribute to an HSA.

What about medication assisted treatment that combines counseling and medication?

Some health plans limit coverage for providing both counseling and medication together for treatment of an opioid use disorder due to the high cost involved. For example, the plan might require the employee to first try counseling alone, and if that does not work, then the plan would cover a combination of medication and counseling. This approach may impose an impermissible nonquantitative treatment limitation in violation of the MHPAEA, which does not allow a “fail-first” requirement unless specific criteria are met. Specifically, a plan cannot impose any more stringent requirements on coverage for substance use treatment than the plan imposes on medical, surgical, or prescription drug benefits for which a “fail-first” approach would be appropriate. In some cases, an exemption from federal mental health parity requirements might be available and can be considered in designing any requirement of this type.

The 21st Century Cures Act, which amended the MHPAEA in 2016, requires the U.S. Department of Labor, U.S. Department of Health and Human Services, and the U.S. Department of the Treasury to seek feedback and issue guidance relating to the nonquantitative treatment limit requirements of the MHPAEA. Proposed FAQs issued jointly by these three federal agencies in April of 2018 specifically address “fail-first” policies and how to structure them to meet the parity requirements. For example, an employer group health plan could not require a plan participant to have 2 unsuccessful attempts at outpatient drug addiction treatment in the past 12 months before covering inpatient in-network treatment if the plan only required 1 unsuccessful attempt at outpatient treatment before an inpatient in-network medical benefit is provided.

Are there alternative therapies employers can consider covering?

Employers may want to consider whether their health plans includes coverage for alternative therapies that might make a difference for someone currently using an opioid. For example, many patients suffering from chronic pain seek relief through acupuncture, massage therapy, physical therapy, occupational therapy, chiropractic treatment, or soft-tissue mobilization techniques. Providing comprehensive coverage of these therapies may help reduce opioid dependence. Other options to consider might be addressed as part of a workplace wellness program, such as gym memberships that include yoga, stretching classes, water aerobics, and other low impact exercise programs that could provide an alternative approach to pain relief.

How can a health plan do more to prevent opioid addiction before it occurs?

There are a few ways that health plans can address the issue before the addiction begins. One way to get in front of the issue would be to have a case manager or pharmacy benefit manager intervening prior to filling an individual’s first prescription for opioids who offers to work with the doctor, pharmacists, and patient to make sure the patient understands the prescription is for an opioid and to determine whether a nonaddictive option is available. Efforts to coordinate care among the individual’s various medical providers can reduce costs, eliminate duplicative or excessive prescriptions, and improve patient outcomes.

Another idea is to consider applying the “centers of excellence” coverage model to pain management, much like many health plans do for cardiac care and cancer treatments. This approach would provide coverage for individuals who seek treatment at designated health care institutions offering specialized programs designed to curb opioid abuse.

Health insurers have implemented a variety of utilization management techniques to help curb the potential overuse of opioids. Some of these techniques include step therapies that seek to slowly back the patient down to lower doses, prescription of nonaddictive pain medications, limits on the number of pills and refills that may be obtained, and preauthorization requirements for any opioid prescription that is to be taken for longer than a very short period of time. Many plans include safeguards that preclude employees from jumping around to different medical providers when seeking—or pharmacies when filling or refilling—opioid prescriptions.

 Like the “fail-first” policies described above, these medical management techniques are nonquantitative treatment limitations, subject to the federal parity requirements discussed above and specifically addressed in the Proposed FAQs. For example, if a health plan uses medical management criteria to establish dosage limits on buprenorphine to treat an opioid use disorder, it can be no more stringent is establishing those dosage limits than when applying dosage limits for prescriptions to treat medical and surgical conditions.

Does the employer know the extent of the problem in its employee population?

As plan sponsor of a group health plan, an employer is entitled to access aggregated health plan data that has been de-identified. This means that it is arranged by geographic locations, down to the zip code level, but does not identify any individual person. An employer could obtain reports of new opioid prescriptions, as well as refills, in addition to data on other medical and mental health conditions that commonly lead to opioid misuse, such as workplace injuries, back pain, depression, and anxiety. Working closely with a data analytics professional may enable an employer to understand the scope of its current problem and identify the potential population that would benefit from additional services.

Does the employer know what resources are available in the area, and has the employer offered those resources to its health plan participants?

Alex Azar, the U.S. secretary of health and human services appointed earlier this year, announced that confronting the opioid epidemic would be one of his main priorities. President Trump has declared the opioid epidemic a public health emergency. CARA provides grants to states and communities to develop programs aimed at improving drug abuse treatment programs.

A variety of resources are popping up across the country focused on fighting the opioid crisis.  For example, in Indiana, Governor Eric Holcomb has partnered with the Indiana Chamber of Commerce and the Wellness Council of Indiana to form an Indiana Workforce Recovery Initiative. This initiative provides a source of information on best practices and training regarding opioid abuse to employers in Indiana. Similar resources may be available in your area. 

An employer can use its normal employee communication methods—such as bulletin boards, emails, newsletters, and direct mailing—to communicate with its employee population broadly about drug misuse and abuse. An employer’s health, wellness, and EAP plan providers can also target communications to employees who may be at risk. If an employer has not already done so, it may want to ask its plan insurers and third party administrators about specific resources they can provide to the employee population.

Employer group health plans can be a vital part of the solution to the opioid problem.

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

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About this Author

Stephanie Smithey, Ogletree Deakins Law Firm, Indianapolis, Healhcare and Labor Employment Attorney
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Ms. Smithey devotes her practice to all aspects of employee benefits law. She represents clients with respect to qualified retirement plans and health and welfare plans, assisting them with a variety of plan design, compliance, and administration issues for all types of pension, health and welfare benefit plans.

Ms. Smithey advises her clients as to ERISA, MPPAA, HIPAA, COBRA, PPACA, the Internal Revenue Code, as well as other federal and state laws applicable to employee benefit plans and plan sponsors. She assists clients with IRS and DOL...

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