March 14, 2011

Health Reform "Essential Services" - Rehabilitative or Habilitative?

by Kantor & Kantor LLP

Wall Street Journal writer Avery Johnson reported recently that defining “essential benefits” is the latest insurer roadblock in implementing the federal health reform legislation. See “Defining Essential Care.”

The debate revolves around the difference between rehabilitative services, relearning skills lost through disease or injury, versus “habilitative” services, the process of acquiring new skills. Insurers tend to label habilitative skills educational or experimental, thus falling outside of coverage.

Health law divides essential services into 10 categories, each containing treatments that could fall within either rehabilitative or habilitative services, depending on how the debate is decided. Insurers want to keep the habilitative services categories as broad as possible so they have flexibility in designing benefits packages, writes Johnson.

Medical professionals believe if coverage specifics for these treatments are not spelled out in detail, insurers have more leeway to delay and deny benefits. Allowing insurers to determine habilitative services is problematic as well, particularly since the determination will likely fall along financial, rather than medical, lines.

Under the mental health and substance-abuse disorders category, the debate concerns the length of stay in a treatment facility. Other treatments under question include unlimited physical therapy and nutrition counseling.

Arguing about how long a patient may stay in a residential facility is nothing new. Health plans must be salivating over the option to have the power to draw a bright line to determine an appropriate length of stay in a treatment facility or to decide when rehabilitation turns into habilitation. But since each individual is different, those diagnoses must remain in the hands of skilled medical professionals.

Especially troubling to us is the impact this debate could have on treatment for eating disorders. In many states, eating disorder treatment is covered as a mental health condition. To save money, employers are beginning to drop mental health coverage as part of their health plans. Some plans have implemented new rules this year that deny coverage benefits for residential treatment of eating disorders. Even something as simple of denying benefits for nutrition counseling could be a life-or-death decision for some patients.

Rulemakers must also realize that decisions made in the context of plans sold on insurance exchanges could also inform how insurers will interpret employer-provided plans. The erosion of coverage for mental health issues is alarming. Regulators need to ensure this trend doesn’t weaken the protection the federal government plans to endorse.