BY GARRY CARNEAL, JD, MA
The U.S. medical system is dynamic and always evolving. Understanding the regulatory landscape is essential for case managers to optimize their patient-centered mission. Simply put, a basic knowledge of the laws and regulations applicable to the jurisdiction that case managers work in and the programs they support is important to ensure the most appropriate care is being delivered to their patients.
Understanding the sources of government oversight applicable to case management and their specific programs is the first step in achieving that goal. Here is a quick overview of how the laws and regulations work together.
- State Law. At the state level, laws are drafted and adopted by the various state legislatures. Typically, state bicameral legislative bodies meet only part-time at the beginning of each calendar year for about three to five months. After both legislative chambers adopt a new piece of legislation and iron out any differences, the bill is usually signed into law by the governor of the state. After the bill becomes law, it is codified into a statute and added to the appropriate section of the state code.
- State Regulation. State regulations are typically written by regulators who work for state insurance, health or other administrative departments. First, however, regulations must be authorized through some type of statutory authority or decree. Typically, regulations spell out in detail how a law will be implemented. Regulations are usually finalized after a public comment period and after the head of the state agency in charge of the regulations, such as a state insurance commissioner, signs the regulations. Then, the regulations are added to state administrative bulletins or codes.
- Federal Law. At the federal level, laws are drafted, debated and adopted by Congress. Typically, both the U.S. House and Senate will pass similar bills, and then the differences are worked out through a conference committee. After the legislative proposal is finalized, the president signs the bill into law. The laws then are added to the proper place in the U.S. Code.
- Federal Regulation. Similar to the state regulatory process, federal regulators at various departments or agencies such as the Department of Health and Human Services or the Centers for Medicare & Medicaid Services will draft proposed regulations. The proposed rule is then published in the Federal Register, and a public comment period is announced. Once the regulations are modified or not based on the comments received, they typically will be finalized by the head of the department. Then, the regulations are published in the U.S. Code of Federal Regulations (CFR).
- Local Regulations/Ordinances. Regulations stemming from county, city or other municipalities also might impact specific case management programs or the places where case managers work.
Typically, regulations go into much more detail than statutes. In addition, federal law preempts any state law or regulation where the federal law identifies a higher standard of conduct or threshold of operation. In contrast, where state laws create a higher standard or where federal law is silent on the matter, the state laws have the primary authority to govern the situation.
It also is important to note that there are other sources of government oversight. For example, court rulings and attorney general opinions, both at the federal and state levels, can add oversight requirements. In some cases, court decisions can have the same or more weight as federal or state laws when the judges write opinions that sort out two or more conflicting laws or regulations.
In addition, several sources of “private” requirements may impact the oversight of case management programs, including accreditation standards, specialty society guidelines (such as CMSA’s Standards of Practice for Case Management), payer guidelines (such as utilization management criteria) and self-funded health plan requirements, among others.
CMSA also has published the Case Management Model Act (last revised in 2017) that would help establish key enabling legislation at the federal level. In theory, the Model Act also could be adopted at the state level. To date, the Model Act has not been adopted in any jurisdiction.
The major takeaway is that case managers, who use clinical assessments and implement care plans for their patients in their daily activities, need to understand the regulatory playing field to promote the best care coordination.
Understanding Case Management Through Regulations
The vast majority of laws and regulations for case management programs are at the state level. In fact, more than 7,500 different state statutes refer to case management (CM) services. One-third of the states have 200 or more statutory/regulatory provisions governing case management services, and two-thirds of the states have adopted 100 or more provisions.
Most state-based case management requirements address social services and public welfare issues. Only a small percentage of the laws surveyed address private sector, health insurance offerings. Most states have at least one statutory and several regulatory definitions for the term “case management,” but definitions often vary both on an intrastate and interstate basis.
Generally speaking, federal requirements are less detailed than the state requirements. Several important federal legislative initiatives have impacted the practice of case management including the Federal Parity Act (formally called The Mental Health Parity and Addiction Equity Act) in 2008 and in 2010, the Affordable Care Act (formally known as the Patient Protection and Affordable Care Act). States also have expanded their laws and regulations to implement the ACA and Parity Act.
Case Management Duties
All states have adopted at least one law or regulation that details the specific duties or obligations of a case manager or a case management organization. The statutory or regulatory responsibilities of a case manager include a wide spectrum of duties that typically include:
- Developing care plans
- Facilitating and coordinating care
- Interagency coordination
- Coordinating and/or negotiating of reimbursement
- Serving as liaison with various providers and the patient’s family
- Promoting consumer/patient advocacy.
In the future, it would be worthwhile to see if CMSA’s Standards of Practice could be used as a foundational pillar for these types of regulatory requirements.
Virtually every state uses case management statutes to promote public health issues, particularly for children, the elderly, the disabled and those with special healthcare needs. Probably the most common reference to a public health issue addresses the management of mental health patients.
Types of Case Management Laws and Regulations
Case Management and Utilization Management Regulations
Many jurisdictions and healthcare settings see case management and utilization management processes as two distinct but sometimes overlapping areas. In terms of similarities, regulatory provisions for both detail the specific duties and obligations for each type of service. Other common areas include addressing clinical staffing and program requirements, ongoing training expectations and reimbursement or financial guidelines.
However, many differences also exist between utilization management and case management laws and regulations:
- Orientation. Utilization management regulations are typically geared toward a specific corporate entity; case management regulations are typically geared to the case management participants in a specific state-funded program.
- Corporate Licensure. Utilization management regulations have more licensure requirements for the corporate entity providing the medical management services than do case management requirements.
- Individual Certification. Case management regulations promote individual certification more than utilization management rules (but it is important to note that both typically establish clinical staffing and supervisory requirements).
- Underlying Processes. Case management guidelines focus more on the development and implementation of care plans (based on generally accepted standards of care such as CMSA’s practice guidelines), while utilization management rules focus more on the decision-making process for medical necessity decisions within a corporate setting (based on payer guidelines).
- Timing. Utilization management regulations focus more on specific points of care (e.g., the utilization review decision and any potential appeals for a particular episode of care). Case management regulations address the need for care over a longer continuum of time (e.g., implementation of care coordination services over a period of months or years for a chronic condition) in multiple healthcare settings.
Here are a few strategic takeaways regarding how laws and regulations impact case management programs:
- Specialized Focus. The regulation of case management services, similar to industry trends, has become more specialized and detailed.
- Somewhat Static. Changing or updating laws represents more of an effort based on the legislative process as described above. Accreditation standards and other sources of private-sector oversight can often update and change requirements in a timelier fashion.
- Program Funding. Laws often authorize the funding for key public programs supporting case management programs through Medicaid, Medicare and other government-sponsored programs.
- Specific Programs. Case management regulatory provisions are typically focused on specific public programs and often include a fair amount of detail. In contrast, utilization management programs are typically regulated through more comprehensive enabling laws.
- Not Proactive. As a general concept, healthcare regulations are typically reactive to current market trends and are not innovative. However, there are a few exceptions where regulations promote new ideas through pilot initiatives and similar initiatives.
CMSA’s public policy committee, the local CMSA state chapters and related efforts remain an important way for case managers to stay abreast of the ever-changing legislative and regulatory landscape to best understand how it affects their work and programs.
Garry Carneal, JD, MA, is president and CEO of Schooner Strategies/RadSite.