Rosie D.
Reforming the Mental Health System in Massachusetts

News Stories & Feature Article

Periodically, news of important implementation activities will be described, together with a short feature article on a topic relevant to the reform of the mental health system in Massachusetts.

November 2020

First Circuit Finds Plaintiffs Are Eligible for Attorney’s Fees

In this longstanding Medicaid EPSDT case brought on behalf of approximately 30,000 children with Serious Emotional Disturbance (SED), in 2019 the District Court rejected the State’s claim that it had complied with the 2007 Judgment, and denied their motion to end all monitoring and reporting.  The State appealed. The First Circuit reversed and remanded, holding that the District Court had not properly modified the Judgment to extend the termination date for monitoring.  Rosie D. v. Baker, 958 F.3d 51 (1st Cir. 2020). 

Although the plaintiffs had not prevailed in the appeal, the Center and its co-counsel sought to recover substantial attorney’s fees and costs, arguing that they had an ethical duty to the class to defend the District Court’s favorable decision on appeal.  And because the plaintiffs had prevailed in the original case by obtaining a remedial order, they were entitled to fees for time spent ensuring compliance with that order.  In a significant but brief decision, the First Circuit agreed, holding that the plaintiffs were eligible for an award of attorney’s fees and costs.  It remanded the matter to the District Court for a determination of the appropriate amount of fees.

CPR Appeals Termination of Court Monitoring and Reporting

On May 18, 2020, CPR and co-counsel filed a Petition for Further Review by the full First Circuit Court of Appeals in Rosie D. v. Baker. The Petition seeks rehearing of the appeals court panel’s decision, which allowed termination of court monitoring and reporting, despite the District Court’s finding of continuing federal law violations.

In their Petition, the Plaintiffs argue that the full Appeals Court should rehear this case because it presents questions of exceptional importance, including whether the Medicaid Act requires States to promptly provide children with needed treatment in accordance with their own timeliness standard. Plaintiffs also argue that the First Circuit’s opinion conflicts with decisions from the Supreme Court, because it allows for termination of court obligations when continuing federal law violations exist.

In a lengthy dissent, Judge Lipez noted that the District Court’s decision relied on undisputed evidence of lengthy waiting lists and unmitigated delays in access to medically necessary EPSDT services. The dissent concluded that the District Court’s analysis appropriately balanced the proper role for federal courts with the need for continued monitoring and reporting under the Judgment.

In its February 2019 decision denying the Commonwealth’s request to terminate court monitoring and reporting, the District Court found persistent, longstanding failure to deliver Intensive Care Coordination and other remedial programs with reasonable promptness. The District Court determined that the Commonwealth’s noncompliance was leading to “grave potential consequences for the health and welfare of [] vulnerable children.” The District Court also noted the absence of any plan by the Commonwealth to remedy those violations going forward.

April 2020

MassHealth Increases Telehealth Flexibility for the Delivery and Billing of CBHI Services

In response to the COVID-19 crisis, and related state of emergency orders, MassHealth has issued several bulletins authorizing expanded use of telehealth to deliver medical and behavioral health services, including Rosie D. remedial services. On March 30, 2020, the Commonwealth issued two additional documents clarifying how home-based services can continue during this period of social isolation. 

The Children’s Behavioral Health Initiative (CBHI) Provider Frequently Asked Questions describes procedures for documenting verbal consent to treatment, and options for conducting initial comprehensive assessments, individual therapy/service delivery, and care coordination meetings by telephone or video.  Frequently Asked Questions (FAQ) for Families with Children Receiving Home and Community-Based Behavioral Health Services During COVID-19 explains options for remote service delivery, as well as screening procedures for evaluating the appropriateness of community or home-based treatment.  This FAQ also provides important information on access to 90 day medication supplies, and how to access internet data and discounted phone service when necessary to facilitate telehealth delivery options.

MassHealth Extends CBHI Payments for Medicaid Eligible Youth with Certain Private Insurance Plans

On March 18, 2020, MassHealth issued amended Guidance to Providers and Carriers Regarding Transition to Commercial Coverage of Intermediate Services for Youth, extending the timeframe for payment of certain home-based services under MassHealth secondary insurance. 

The Guidance concerns the availability of commercial insurance coverage for new Behavioral Health Children and Adolescents services (BHCA).  Under a December 2018 Bulletin by the Division of Insurance (DOI), fully-funded commercial insurers must begin paying for BHCA after July 1, 2019, as part of their annual plan renewals.  See new feature article, below.  Among the services covered in phase one of the Bulletin are Intensive care coordination, In-home therapy, and In-home behavior services. 

This further extension of the transition process is intended to promote continuity of care for Rosie D. class members currently receiving services under their MassHealth secondary insurance, and to allow more time for the establishment of commercial provider networks.  Effective July 1, 2020, home-based service providers must obtain an Explanation of Benefits (EOB) form from the youth and families’ commercial insurer saying coverage is denied, exhausted, or unavailable before they can submit a claim under MassHealth secondary insurance. 

Feature Article - April 2020

The Impact of New Behavioral Health Child and Adolescent Services on
Rosie D. Class Members with MassHealth Secondary Insurance

In December of 2018, the Massachusetts Division of Insurance (DOI) issued a Bulletin requiring certain fully-funded, commercial insurance plans to provide new Behavioral Health services for Children and Adolescents (BHCA), effective July 1, 2019.  Several of these newly covered behavioral health services bore the same name as existing home-based services created under the Rosie D. Judgment.  However, it was unclear exactly how much they would resemble remedial services ordered by the Court.  Intensive care coordination, In-home therapy and In-home behavior services were among the first BHCA services to become available to commercially insured youth. 

The DOI Bulletin – and the expanded coverage it requires - offers a clear benefit to commercially-insured youth who have not previously had access to home-based behavioral health services.  However, it also complicates, and may even undermine, access to medically necessary remedial services for Rosie D. class members with both covered commercial insurance and MassHealth secondary.   These youth and families will see at least three major differences in how they access home-based services once the DOI Bulletin is in full effect:

Changes in Payers/Access to Care

MassHealth/Medicaid is considered the payer of last resort.  If medically necessary services are covered by commercial insurers, youth with MassHealth secondary coverage will have to exhaust commercial benefits first.  This means relying on the private insurer’s eligibility criteria, appeal processes, and administrative billing procedures, as well as their network of contracted service providers.  

Youth who are currently receiving home-based services under the Rosie D. Judgment (also called the Children’s Behavioral Health Initiative or CBHI) can remain with their care coordinators and in-home therapists if those providers: 1) contract with the youth’s commercial insurer; or 2) are able to negotiate a single case agreement on behalf of the youth and family.  Under these single case agreements, commercial insurers agree to pay for the continuation of services outside of the commercial network on a case by case basis.  If one of these two provisions is not met, class members will need to find a new service provider, resulting in a disruption in continuity of care.

Changes in Provider Networks

Commercial insurers covered by the DOI bulletin were originally directed to begin paying for BHCA services after July 1, 2019, as part of their annual plan renewals.  Covered insurers can either provide these services using their existing insurance networks, or by contracting with CBHI providers.   As more and more plans renewals occurred, in became clear that efforts to implement the transition to commercial coverage, and to contract with experienced home-based services providers, was taking longer than expected.  As a result, MassHealth twice extended the period of time in which it would pay for BHCA covered services, most recently to July 1, 2020.  (See news story, above.)

However, it is becoming increasingly clear that not all CBHI providers will contract with the thirteen covered insurer plans in Massachusetts.   In February, 2020, the Association of Behavioral Health providers (ABH), a statewide association representing more than 80 community-based mental health and addiction treatment provider organizations, published a survey of current CBHI providers titled Survey Analysis and Recommendations: Behavioral Health for Children and Adolescents (BHCA) Implementation More than 25% of survey respondents anticipated having limited to no ability to serve new clients with MassHealth secondary following the transition to commercial coverage. 

Changes in Nature/Intensity of Service

In the ABH survey, CBHI providers reported a range of barriers and operational challenges to contracting with the private insurance system, including variation in how services were defined, described and funded across the various commercial insurance plans.  For instance, the first phase of newly-covered BHCA services – including Intensive care coordination, In-home therapy and In-home behavioral services - will use different medical necessity criteria, apply different program specifications, and use different rate methodologies, depending on the insurer.   As a result, commercially-funded services will not be required to adhere to same expectations for service delivery, intensity, staffing and training.

The Parents Professional Advocacy League and the Children’s Mental Health Campaign have both issued factsheets for families impacted by these changes in commercial insurance coverage.  Medicaid-eligible families who have difficulties accessing medically necessary home-based services can also email the Center for Public Representation at

Read previous news and features.

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