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Health Care & Hospital Law,
Covid Columns

Oct. 1, 2020

SB 855 attempts the elusive task of crafting a working definition of 'medical necessity'

Defining “medical necessity” in the context of medical and surgical benefits has already been a challenge for health care, and expanding this protection to mental health will not be easy.

Craig B. Garner

Principal, Garner Health Law Corp.

1299 Ocean Ave Ste 450
Santa Monica , CA 90401

Phone: (310) 458-1560

Fax: (310) 694-9025


Pepperdine University School of Law

Craig is also an adjunct professor at Pepperdine University School of Law, where he teaches courses on hospital law and the Affordable Care Act.

"Always prefer the plain direct word to the long, vague one. Don't implement promises, but keep them."

-- Clive Staples Lewis

The 10th revision of the International Statistical Classification of Disease and Related Health Problems includes 70,000 codes to serve as an indispensable bridge between physical care received and its resulting payment. The Diagnostic and Statistical Manual of Mental Disorders (5th edition), commonly known as DSM-V, relies upon 300 entirely different codes in its cadre of information for the treatment and funding of mental health. Legislators passed mental health parity laws to protect patients from insurance benefit discrepancies on matters of the soma and psyche, even if the boundaries of treatment from both often remain incompatible.

The California Mental Health Parity Act, much like the federal Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, prohibits financial requirements and treatment limitations for mental health and substance abuse benefits in group health plans from being more restrictive than those placed on medical and surgical benefits. Under the Affordable Care Act, a qualified health plan must include at least 10 essential health benefits, and states like California mandate chemical dependency services, including inpatient detoxification, outpatient evaluation and treatment for chemical dependency, transitional residential recovery services or chemical dependency treatment in a residential recovery setting.

Even with push toward parity, there exists no thermometer to measure vacillations in a person's mental health, and neither acetaminophen nor ibuprofen each day can cure mental illness. Ailments of the mind typically rely upon the subjective, presenting in the form of a spectrum, range or general vacillation. Medical conditions, on the other hand, enjoy over a century of time-tested protocols. The laparoscope has replaced the leech, yet the lobotomy has surrendered to almost one thousand different techniques designed to help a person change behavior and overcome problems in desired ways, also known as psychotherapy.

Senate Bill 855

Last week, Gov. Gavin Newsom signed Senate Bill 855, hoping to force payers in health care to provide full coverage for the treatment of all mental health conditions and substance use disorders, or at least those identified as "medically necessary." The new California Health and Safety Code Section 1367.045(a) states: "If a health care service plan contract offered, issued, delivered, amended, or renewed on or after January 1, 2021, contains a provision that reserves discretionary authority to the plan, or an agent of the plan, to determine eligibility for benefits or coverage, to interpret the terms of the contract, or to provide standards of interpretation or review that are inconsistent with the laws of this state, that provision is void and unenforceable." Likewise, the new California Health and Safety Code Section 1374.72(a)(3)(A) states: "'[M]edically necessary treatment of a mental health or substance use disorder' means a service or product addressing the specific needs of that patient, for the purpose of preventing, diagnosing, or treating an illness, injury, condition, or its symptoms ... in a manner ... (i) In accordance with the generally accepted standards of mental health and substance use disorder care [;] (ii) Clinically appropriate in terms of type, frequency, extent, site, and duration [;] (iii) Not primarily for the economic benefit of the health care service plan and subscribes or for the convenience of the patient, treating physician, or other health care provider."

While SB 855 codifies decision-making discretion away from the payers as well as multiple ways in which parity can be preserved, the new law falls short in its attempt to provide much clarity in that which has historically been subjective. While psychotherapy and prescription medication have made great progress in the past 20 years, the list of cognitive therapy treatments still ranges from rational-based (rational emotive and rational behavior therapy as well as rational living therapy) to dialectic behavior therapy. At the same time, transcranial magnetic stimulation, vagus nerve stimulation and deep brain stimulation have replaced electroconvulsive therapy.

Health Care in the Age of a Pandemic

Around the proverbial corner, however, medical science has made significant leaps in treating COVID-19, a pandemic so foreign to modern medicine it was labeled "novel" earlier in the year. While the efficacy of a forthcoming vaccine remains to be seen, an optimistic medical community hopes to reclaim from COVID-19 the remains of society in record-breaking time (it took four years to develop a vaccination for mumps, the existing record-holder). Even though the United States remains somewhat reluctant to resume ordinary operations until the release of a vaccine, in just six months health care has improved its ability to treat COVID-19 through Remdesivir and convalescent plasma,

Even if a COVID-19 vaccine ends the pandemic sometime in 2021, it may still take years for the global economy to heal. Unfortunately, it may take decades for mental health practitioners to understand the pandemic's full impact on the human psyche, only then to provide relief through the same subjective system of psychotherapy, medication and possibly rehab. SB 855 may afford some protection in the form of health insurance for those mentally suffering from COVID-19's unprecedented toll on society, but SB 855 will not bolster the DSM-V or enhance the acumen of psychiatrists, psycho-pharmacologists, mental health nurse practitioners, psychologists, social workers or members of the clergy.

SB 855 will, however, expand the definition of "health care provider" to include associate marriage and family therapists as well as trainees, qualified autism service providers, associate clinical social workers, associate professional clinical counselor, registered psychologist assistants, and psychology trainees. SB 855 will bolster coverage for basic health care services, intermediate services (including residential treatment, partial hospitalization and intensive outpatient treatment) and prescription drugs. SB 855 will also require health plans to utilize out-of-network providers for medically necessary treatment of a mental health or substance use disorder unavailable in network, all of which must be within geographic and timely access standards, and at no additional cost to the patient.

Still, crafting a working definition of "medical necessity" remains elusive in health care. Thirty-four years ago Congress passed the Emergency Medical Treatment and Labor Act to ensure public access to emergency services regardless of ability to pay. As a result, hospitals must provide stabilizing treatment for patients with an emergency medical condition, or if unable to do so, provide appropriate transfer to a different facility. Defining "medical necessity" in the context of medical and surgical benefits has already been a challenge for health care, and expanding this protection to mental health will not be easy. SB 855 will not erase the historical tensions between payers and providers, nor will it remove patients often standing in the line of fire. Like other well-intended reforms in health care, time and patience are necessary ingredients while waiting for change to travel from theory to practice. 


Ilan Isaacs

Associate Legal Editor

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