Legal Corner: You asked; we answered

Responses to psychologists’ questions about parity, billing and the Affordable Care Act.

Affordable Care Act (ACA): What will happen if the ACA is repealed?

Risk adjustment (RA) audits were created by the ACA to level the playing field between plans with high-cost and low-cost populations. If the ACA is repealed and replaced with a law that does not rely on RA audits, then these audits could be phased out immediately or over time.

For now, insurance companies will likely continue to conduct RA audits as long as the ACA is in place. Therefore, psychologists should adopt recordkeeping approaches that will make it easier to respond to RA audits. Maintain separate psychotherapy notes always or just for some sessions or patients where details are necessary to help provide a high standard of care. Also, keep a lean record that does not contain sensitive information a patient would not want the insurance company to have (more information on lean records in PracticeUpdate).

Billing codes: What does it mean if I get a letter about my high use of code 90837?

Last year, Practice Organization members expressed concerns that their medical records would be audited after receiving letters from insurers about their usage of 60-minute billing code 90837 (for 53 minutes and up of face-to-face time with the patient). 

At least two insurers — Anthem and Highmark Blue Cross Blue Shield (BCBS) — have sent letters to providers who bill therapy code 90837 more than their peers. Anthem assured us in writing that the nature of the letters was to educate psychologists about proper use of the code and associated record-keeping, and that they did not intend the letters to dissuade psychologists from using this code. In a phone conversation with Highmark over their similar correspondence, they mirrored Anthem’s position and gave us verbal assurance that the letter was educational in intent.

Nonetheless, it’s important for psychologists to record the start and stop times of their sessions, and follow the particular insurer’s record keeping requirements (typically outlined in the provider section of its website), in case they’re faced with an audit.

At this time, the Practice Organization has had no reports of Anthem or Highmark BCBS demanding recoupment — repayment of benefits — from psychologists who properly bill 90837 more frequently. If you have information to the contrary, please let us know.

Major settlement in New York: What neuropsychological coverage will Cigna provide?

Thanks to a legal complaint filed last year against the insurer by the APA Practice Organization, the New York State Association of Neuropsychology and the Inter Organization Practice Committee (IOPC)1, Cigna is now required to provide coverage for neuropsychological assessment of several conditions that the company excluded in its national coverage policy.

New York Attorney General Eric T. Schneiderman investigated our complaint, and announced a settlement on Jan. 23 requiring Cigna to change its coverage policy to eliminate complete bans on coverage for any “general diagnosis” including:  

  • Psychiatric conditions.
  • Autism spectrum disorder.
  • Pervasive development disorder.

The agreement also requires Cigna to: 

  • Pay a $50,000 fine to the state.
  • Pay providers and subscribers for denied autism claims going back to November 2012.
  • Clarify that under defined circumstances it does not cover neuropsychological assessment for concussion and mild cognitive impairment.
  • Provide coverage information when requested by providers and actual or prospective subscribers.

Last April, the Practice Organization and partners filed the complaint challenging Cigna’s policy. Our Legal & Regulatory Affairs office took the lead in arguing that Cigna’s policy violated federal and state parity laws, state law mandating coverage for autism, and coverage promises to consumers. We also expressed concerns that Cigna’s coverage policy, on its face, completely excludes neuropsychological coverage for concussions and mild cognitive impairment. 

This victory follows a longstanding campaign by the Practice Organization and IOPC to persuade Cigna to voluntarily change its national coverage policy.2

Prior settlements by major insurers with the New York attorney general have led certain companies to change their policies nationally. The Practice Organization will monitor Cigna’s implementation of the settlement agreement to determine whether further action is needed.

Copays under parity: Is a psychologist a “primary care physician" or a “specialist”?  

Parity law allows an insurance company to apply a higher “specialty” copay to mental health services if the services meet the complicated parity “two-thirds test.”  To find out which copay applies, psychologists should ask their patients for a copy of their “summary of benefits and coverage” (PDF, 601KB) — a standardized document showing the copays for various benefits under an insurance plan.

Under the “two-thirds test,” if two-thirds of all medical/surgery services in the same benefits category are subject to a copay that is as high or higher than the copay applied to psychologists, then a specialty copay is OK. Benefits categories are broad groups of benefits in which parity comparisons are made. Common categories for psychologists are outpatient, in-network and outpatient and out-of-network.

Questions and problems?

We encourage Practice Organization members to contact our Legal and Regulatory Affairs staff if they have questions or identify problems like those addressed in this article and other parity violations and abuses. We are committed to challenging insurers whose policies violate parity laws and limit psychologists’ ability to practice.



1 IOPC member organizations include the American Academy of Clinical Neuropsychology, the American Board of Professional Neuropsychology, the National Academy of Neuropsychology, the Society for Clinical Neuropsychology (APA Div. 40), and the American Psychological Association Practice Organization.

2 That effort was spearheaded by the president of the American Academy of Clinical Neuropsychology at the time, Karen Postal, PhD ABPP.