Waiting in pain

California’s Fight to Make Mental Health Care Providers Comply With the Law

Photo by Verne Ho

By Mark Kreidler

This story is produced by the award-winning journalism nonprofit Capital & Main and co-published here with permission.

On the surface, 2022 has been a significant year for proponents of access to more timely mental health care in California. Not only did a law take effect July 1 that requires providers to schedule follow-up appointments that fall within 10 business days of a mental health care patient’s previous session, but a bill currently sitting on Gov. Gavin Newsom’s desk dramatically increases the penalties for not doing so.

Both are measures with some teeth—assuming they’re enforced. But already reports are surfacing that the agency in charge of policing the state’s managed care plans hasn’t moved on the first, which would substantially limit the bite of the second.

“As with so many things that have to do with consumer protection, implementation is the key,” said Anthony Wright, executive director of Health Access, a California consumer advocacy group. “You need strong enforcement, and it needs to be proactive enforcement. You don’t want to wait until people are actively complaining.”

According to multiple sources, that’s what is happening. State Sen. Scott Wiener (D-San Francisco) authored Senate Bill 221, which mandates quick turnaround times for follow-up mental health appointments. But since the law took effect in July, the sources say, Wiener’s office has been receiving calls from consumers who say their health care providers aren’t following it.

More than 2,000 mental health care workers went on strike seven weeks ago, frustrated by Kaiser’s refusal to negotiate improvements to a system that has been investigated and fined for lax mental health services and for what workers say are dangerously long wait times for patients.

Another measure championed by Wiener, Senate Bill 858, attempts to ratchet up the pressure on giant providers—Kaiser, Health Net, Anthem and others—to bring those wait times into compliance. Under SB 858, the civil penalties are raised from $2,500 to a maximum $25,000 per case for individuals who are denied timely access to multiple types of care.

But even if that measure is signed into law by Newsom, its impact will be muted unless the state’s Department of Managed Health Care (DMHC) is able to use both SB 221 and SB 858 to change the landscape for mental health patients who currently often wait weeks or months between appointments.

“California has the strongest mental health parity laws in the nation, but that won’t help anyone if they’re not vigorously enforced,” said Sal Rosselli, president of the National Union of Healthcare Workers, which represents the striking Kaiser workers. “State regulators are saying all of the right things, but they need to start taking action.” (Disclosure: The NUHW is a financial supporter of Capital & Main.)

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While NUHW sponsored the bill mandating quicker follow-ups for most mental health and substance use disorder appointments, Health Access led the push for SB 858, which increased fines. Those fine amounts had not been adjusted since 1975, Wright noted, while annual deductibles in job-based health plans quadrupled nationally between 2007 and 2019.

SB 858 covers a lot of ground, enhancing penalties on providers who deny or delay access to medically necessary care, behavioral health services, gender-affirming care “or other critical consumer protections,” according to Wiener’s office. Without question, though, providers like Kaiser will keep the DMHC busy with the mental health care aspect of the law—once violations are recorded.

Almost three months after SB 221’s passage, there is no record of the DMHC reporting any violation of the 10-day follow-up law by a health provider, although anecdotally, such violations are occurring regularly. Asked about it by Capital & Main, a spokesperson for the department, Rachel Arrezola, said the DMHC “is monitoring compliance with SB 221.”

That’s not the same as saying the department isn’t working on enforcement. In fact, the DMHC launched a targeted investigation of Kaiser on Aug. 22, one week after the mental health care workers’ job action began, “to examine if Kaiser is providing timely access to appointments during the strike,” Arrezola said. That investigation is ongoing. (Kaiser officials have said that the workers’ strike further complicates their efforts to schedule out their mental health care appointments, and the company has contracted with outside therapists to see patients during the job action.)

The department also initiated in May what it called a “nonroutine survey” of Kaiser that is focused on timely access to behavioral health appointments, as well as the company’s overall behavioral health operations. That survey began after the DMHC fielded repeated complaints about lagging appointment times, and after a 2021 lawsuit filed by San Diego City Attorney Mara Elliott that accused Kaiser of publishing “false and misleading” lists of mental health care providers, many of whom weren’t actually available to see patients.

When it comes to specific, individual violations, the DMHC may ultimately rely on complaints by consumers, a tough way to go. “Most people don’t know to call the DMHC when they have a problem getting an appointment,” Wright said. Several Kaiser therapists told Capital & Main that many of their patients had to summon up courage just to call them for an initial appointment, so they don’t expect those patients to go through a state bureaucracy to register a complaint.

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Still, those reports could be critical if SB 858 becomes law. For decades, health economists say, giant providers have concluded that it’s cheaper to pay occasional state fines than it would be to overhaul their lacking mental health care services. Raising the maximum fine by 10 times its previous level, per violation, is a way to begin reversing that trend. “Fines are an imperfect, after-the-fact component of all this, but they are an important form of accountability,” Wright said. “We want to make sure that fixing the problem isn’t more expensive than paying the fines.”

The only serious opposition to SB 858 came from the California Association of Health Plans, which lobbies on behalf of more than 40 health providers statewide, including Health Net, Anthem, Kaiser and United Healthcare. Among other things, the association argued that the increase in fines was too steep and that the focus should be on preventing problems in the future rather than penalizing providers for past issues.

That is precisely the intention of both SB 858 and SB 221 before it. By closing off a loophole in the former law that allowed providers to push out follow-up appointments for weeks, then upping the penalty for any future violations, the bills’ sponsors hope they are offering mental health patients a future in which more timely access to care becomes the norm.

“We support the DMHC, and we had a hand in creating it [in 2000],” Wright said. “When people call the department, it acts on those complaints — but you don’t want to wait until they’re being denied care. We need enforcement so that those people are getting the care when they need it.”

Those wishing to contact the DMHC for help receiving timely access to care may call 1-888-466-2219 or go to www.HealthHelp.ca.gov.

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