Support from the other side

For years the business and insurance communities were opposed to parity legislation. But senators working for its passage invited them to the negotiating table—a game-changing moment.

“As contentious as it was within the field, the decision by the Senate to build a coalition and negotiate directly with the business and insurance communities was probably the turning point,” says Chuck Ingoglia, vice-president of public policy and practice improvement at the National Council for Community Behavioral Healthcare. “We finally then had an ability for us to sit down with our biggest opponents and come up with a bill that is pretty darn good.”

E. Neil Trautwein, chair of the ad hoc coalition representing business and insurance interests in the parity discussions, says being included definitely helped bring them onboard: “That process of working with the Hill, working with the advocates, helped build confidence, made this into a shared enterprise, and ultimately led to full-fledged coalition support for the bill.”

Parity milestones May 12, 1992   Federal mental health parity legislation is first introduced. Various parity bills will be introduced during the next 16 years. 1993 to 1994 Congress debates President Clinton's health plan, which includes a phase-in of full parity by January 1, 2001. The plan is not passed. 1995 The Coalition for Fairness in Mental Illness Coverage is formed, which represents consumers, family members, health professionals, and healthcare systems and administrators in parity negotiations. September 26, 1996 Clinton signs the Mental Health Parity Act of 1996, which requires parity for only annual and lifetime dollar limits. 1999 Clinton directs the Federal Employees Health Benefits (FEHB) Program to institute mental health and substance use parity, which takes effect January 1, 2001. April 29, 2002 President Bush endorses parity. October 25, 2002 Sen. Paul Wellstone (D-Minn.), a strong supporter of parity, dies in a plane crash. July 23, 2003 President's New Freedom Commission on Mental Health endorses parity. December 12, 2005 National Business Group on Health issues report that supports voluntary parity. July 15, 2008 Congress overrides Bush's veto of the Medicare Improvements for Patients and Providers Act of 2008, which over 6 years phases out the 50% co-pay for mental health ambulatory care under Medicare Part B. October 3, 2008 As part of a financial industry bailout package, Congress passes the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, which Bush signs the same day. October 3, 2009 Parity law regulations are due from the Departments of Health and Human Services, Labor, and Treasury. January 1, 2010 The legislation takes effect for most group health plan members. Sources: Pamela Greenberg; Mental Health America; Sundararaman R, Redhead CS. The Mental Health Parity Act: A Legislative History. Congressional Research Service. July 18, 2008.

Trautwein, vice-president and employee benefits policy counsel at the National Retail Federation, says employers' growing interest in health benefit policy and employee wellness also “made it easier certainly for me as a representative of the retail industry, and the business community generally, to bend a little bit more when it came to the parity compromise.”

Businesses and insurers did score what Trautwein terms a “very, very big win” when references to the DSM-IV were removed from the legislation. Although behavioral healthcare advocates preferred its inclusion, Greenberg says their flexibility on this issue was vital.

“The Fairness Coalition felt that without the support of the business and managed care/insurer community, we wouldn't have been able to get a bill through Congress. And the DSM was not something they were going to compromise on,” she explains.

Business and insurance groups had argued for years that including the DSM in the legislation would mean they would have to pay for conditions such as caffeine addiction and jet lag. Greenberg says that in reality MBHOs rarely paid for these conditions, but she acknowledges that this argument was effective.

“I used to joke that the employer and managed care communities were spending more on their ads talking about jet lag and caffeine addiction than [MBHOs] were paying to treat those,” she says. “But it was smart on their part, because that's what people remembered. It was very good lobbying.”

On the other hand, behavioral healthcare advocates scored a major victory last year when the business and insurance communities agreed to federal legislation that would not preempt state parity laws.

“The insurers and the business community had initially said one of the reasons they were willing to have this [parity] discussion was so that they would have a uniform federal law and they wouldn't have to comply with the patchwork of state laws,” Greenberg recalls. “I never thought they would be willing to compromise in that area.”

“Unfortunately, in the give-and-take of the negotiating process, we lost preemption,” says Trautwein. “We would have preferred a strong federal rule.” Yet Trautwein sees the final legislation as a result of a “classic compromise: not everything we wanted, not everything they wanted.”

Greenberg hopes the willingness of the behavioral healthcare field and the business and insurance communities to work together will continue: “One of the mistakes we make in the behavioral health field is that we don't talk enough to the business folks, if nothing else to just let them know what we are doing…. If they understand better what they're purchasing and why, it can only help us.”

Adds Trautwein: “We've built friendships that will certainly survive the enactment of this law and we've certainly learned from and hopefully helped them understand our concerns a little better.”

Next steps

Group health plans must comply with the federal parity law at the beginning of the plan year that begins one year after the legislation was signed. So for most this means January 1, 2010, as most plans are on calendar years. The law does not need to be re-passed by Congress annually as the 1996 parity law did (that law's “sunset” provisions have been eliminated as well). Although parity is now the law of the land, that doesn't mean advocates can take a breather.

“In a sense, the harder work is yet to come, because the more detailed work of interpretation is yet to come,” says Greenberg.

The U.S. Departments of Labor, Health and Human Services, and Treasury (specifically the IRS) now need to develop regulations, what Greenberg calls “the meat behind the legislation.” For example, the federal government will need to provide guidance about the non-preemption of state parity laws. Greenberg says that the federal parity law is stronger than most state parity laws, but potentially confusing situations will need to be addressed.

For instance, in Pennsylvania the state requires health plans to offer at least 30 days of substance use treatment. Greenberg says it is unclear how this requirement will interact with the federal parity law, noting that the key question is whether the state law will interfere with the application of the federal law. Some Pennsylvania providers are wary of losing this “minimum” benefit written into state law.

Another area where federal guidance will be needed is how parity is determined. For example, Greenberg wonders that if a health plan has a $10 co-pay for primary care, $25 for specialty care, and $35 for physical therapy, what constitutes an equitable co-pay for mental health and substance use services?

Greenberg says that the federal government also will need to provide more clarification around the law's language allowing group health plans exemption from the parity requirements. Health plans covered by the law must comply with it for the first year. If they demonstrate that within the first six months of compliance their total plan costs increase by 2% or more due to parity, they can seek an exemption from the law for the next year. However, they then have to come back into compliance the following (third) year. If their total costs subsequently increase 1% or more because of parity, they can seek an exemption for the next (fourth) year.

“We purposely made it complicated in hopes that it would discourage employers from opting out,” says Greenberg, who notes that studies have found that parity tends to increase premiums by less than 0.5%.

Although Labor's, Treasury's, and HHS's regulations are due by October 3, 2009, employers and insurers must comply with the law even if none has been issued. As advocates help craft these policies, public education will be important, too.

“There's a lot of room for education, both for people within our field plus the general public,” Ingoglia says. “With the lead-in to implementation, hopefully our organization and others will be involved in helping to increase awareness and understanding.”

Now onto healthcare reform

With advocates savoring parity's passage, they now have an even bigger prize to aim for: national healthcare reform.

“I think parity provides an important component to our overall policy agenda as our nation now turns its attention to healthcare reform,” says Ingoglia. “We now start with the premise of parity, that any proposals put on the table will have to treat mental health and addiction disorders the same way.” He adds, “It passing the same year as Medicare parity sets an incredible precedent and opportunity for us.”

The behavioral healthcare community already is gearing up for the debate. Greenberg notes that the Whole Health Campaign, bringing together a range of mental health and substance use care interests, has begun working on principles that everyone in the field can agree to. Perhaps with the lessons learned from getting parity passed, this task will be made a little easier.

“Parity has done a great job of unifying our field,” Ingoglia observes. “I think we're at a time when we can get past some of the prior divisions within our field and see the benefit of working together, and hopefully we will then be able to craft some larger policy priorities and work to achieve those.”