At least one local health insurance plan for state and county workers offered through the Hawaii Employer-Union Health Benefits Trust Fund (EUTF) violated provisions of federal law for an unspecified period by limiting access to outpatient mental health services, according to a case summary published in the 2011-2012 annual report of the Office of the Ombudsman.

The report traces the outcomes of 4,335 inquiries or complaints the ombudsman’s office handled during the year ending June 30, 2012. It also includes a handful of selected case summaries which are worth reading, despite the bureaucratic prose, because they reflect the kinds of day-to-day problems the public too often faces when dealing with government agencies — the conflicting rules, undisclosed policies, personality conflicts, power plays, and so on. They also capture the flavor of the office’s low-key but thorough investigations and, where necessary, subsequent behind-the-scenes efforts to persuade state and county agencies to just do the right thing.

The issue of mental health coverage came to light when a local psychologist’s claim for payment was rejected by the private insurance carrier because his patient, a state worker being treated on a weekly basis for depression and a “substance use disorder,” exceeded the plan’s limit of 24 outpatient visits per calendar year.

Neither the psychologist nor the insurance company are named in the summary due to confidentiality requirements of the state law establishing the ombudsman’s office and its powers.

The psychologist appealed the insurer’s denial, and then appealed further to the EUTF, which establishes the level of benefits provided under the plans offered public employees and retirees.

Both appeals were denied. He then complained to the ombudsman, arguing at each level that the refusal to pay his bills violated the Mental Health Parity and Addiction Equity Act. The federal law, which went info effect beginning July 1, 2010, prohibits health care benefit plans from applying different standards to mental health or substance abuse services than for other medical or surgical benefits.

The ombudsman quickly learned that although the public employee health plans didn’t limit outpatient medical and surgical visits, they set a cap on mental health services.

Following the ombudsman’s intervention, EUTF and the insurance company reconsidered, approved the psychologist’s claims, agreed to locate other claims that had been improperly denied, and amended their benefit plans to comply with the federal law.

It was, it seems, a major success, but for Robin Matsunaga, who has held the post of ombudsman since 1998, it also represents a nagging worry.

“I don’t know how long it took for that complaint to come to my office,” Matsunaga said Tuesday, acknowledging that his office is relatively invisible.

“Much of the public doesn’t know about what we do, they don’t know we exist, and don’t know how to use us,” he said.

Matsunaga tries to do as much outreach as he can with a small staff but, he says somewhat apologetically, “I don’t have any funds to do that.”

Fixing From The Bottom Up

Unlike the state auditor, which doesn’t respond to complaints from individual citizens, the ombudsman works from the bottom, Matsunaga said.

“Our job is to fix government, looking at how it’s working from the ground up, when the people receiving the services have a complaint about how they are treated by an agency or its rules and policies,” he said.

The Office of the Ombudsman, created in 1967, investigates complaints by the public against any state or county executive agency, but its powers are limited.

Its authority excludes a wide swath of government officials, including the governor, lieutenant governor, and their personal staffs, the Legislature, judiciary, and the mayors and county councils.

The office has a small staff of eight analysts who lack the resources to pursue every issue. Instead, staff encourage and assist people in pursuing grievances directly with the agency, or gently prodding agency supervisors to follow-up directly with complainants, while only pursing an independent investigation if the agency refuses to take any action or if the complainant is dissatisfied with the outcome.

“We don’t investigate every complaint,” Matsunaga said. “We just don’t have the manpower or resources. We will concentrate on those that are time sensitive, that involve health and safety issues, or vulnerable populations, such as children, those with mental health issues, and prisoners.”

While the ombudsman does not have the power to compel agencies to follow its advice or overturn agency decisions, Matsunaga said his office has been very successful at gaining agency compliance, although at times it can be a long process.

“We don’t have teeth, but we can gum them to death,” he said. “My staff are real tenacious. When we’re sure of our position, we will continue to try and persuade them.”

Sunshine, The Last Resort

Some larger agencies, such as the Department of Public Safety and the Department of Education, have developed bureaucratic cultures that can be resistant to change, Matsunaga said.

“Sometimes when an issue comes up and we find out the agency has been doing it that way for a long time, we point out they are not correct, but they don’t buy in right away.”

When the ombudsman’s staff is convinced it’s right, and an agency insists on holding its ground, there’s one final weapon at their disposal — public disclosure.

By law, most of the ombudsman’s work is confidential. However, when all else fails, Matsunaga has the authority to issue a public report identifying the issues, disclosing the results of their investigation, and detailing their recommendations for change.

Matsunaga said the office has initiated five public reports in the 15 years since he took office, but none of them was ever released. In each case, the threat of public disclosure was finally enough to get agency compliance.

“In one case, I had completed my final draft report and transmitted it to the governor for review and to the agency for comment,” he said. “At the last minute, they reconsidered their position and implemented the corrective action we had been seeking.”

“The report was designed to criticize and make the agency look really bad to the public,” Matsunaga said. “That’s my only tool to coerce the agency, for lack of a better word.”

The ombudsman’s eight analysts rotate, with one on duty to take complaints on any given day. All the complaints received that day are assigned to that analyst.

“It gives each analyst a broader picture of what’s going on in these various agencies, rather than focusing on one agency or department.”

Matsunaga is aware that long-time staff deal with the same people in the agencies, get to know them over time, and risk being “captured” by the agency’s point of view.

“I tell my staff, whatever they (agency officials) tell you, you have to confirm through documentation or other types of evidence that would support what they told you,” he said.

The same even-handedness is reflected in his advice for handling of complaints.

Matsunaga said some people want to use the ombudsman as a tool to harass an agency, while others, often prison inmates, are referred to as “frequent flyers” because they pepper the office with numerous complaints.

“But you can’t automatically dismiss them, you can’t do that,” Matsunaga said. “If you’ve already colored your view of what’s happening, that’s when you’re going to miss the critical complaint, the one that is substantiated, the one we need to fix.”

“That’s my job, to keep our staff impartial and open,” he said. “I stress to them, evaluate the complaint, not the complainant.”

Matsunaga defends his decision to keep the agency in the background and resist pressure for increased transparency and disclosure of agency problems and issues.

“Some of my colleagues issue more public reports,” he said, pointing to ombudsmen in Iowa, Nebraska, Alaska, and Arizona. “But I think my office is more successful in convincing agencies to take corrective action than they are.”

While Matsunaga wants the public to know of and utilize the services of the ombudsman, he isn’t pushing to claim public credit.

“As long as they do what we recommend, we won,” Matsunaga said.

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