Representing the largest managed behavioral health organizations (MBHOs), which provide benefits to nearly 150 million Americans, the Association for Behavioral Health and Wellness (ABHW) was one of many groups with an intense interest in the Interim Final Rule (IFR) that implemented the Mental Health Parity and Addiction Equity Act, or MHPAEA. Despite close involvement in the legislative process, ABHW’s Pamela Greenberg acknowledged that portions of the IFR were unexpected.
“The biggest surprise is the new category of non-quantitative treatment limits, which is defined as including all types of medical management including utilization reviews, pre-certifications, pre-authorizations, standards for provider network participation and reimbursements, plans for determining UCR rates; fail-first policies, and pharmacy formularies. This wasn’t something we expected in the least.”
Greenberg says that the wide range of non-quantitative treatment limits begins to “get into the operations of our businesses, though we did not feel that was the intent of the law.” One example of the impact of non-quantitative treatment limits involves provider payments, which “don’t have to be identical, but do have to be similar in terms of calculating the percentage of usual, customary rate (UCR) paid to the provider. That’s getting into the way that we do business, negotiate rates, and things like that. That is our biggest issue, something that affects the way we do business. It’s a big surprise.”
“The language in the bill states that benefits could be managed ‘according to terms and conditions of the plan,’ which we felt would allow us to manage the benefit the way we currently do.” She adds that the group felt that “treatment limitations would be limited to quantitative treatment limits, such as the number of days or visits.”
But, she acknowledges, “there’s a catch-all phrase in there that says ‘or other similar limits in the scope and duration of treatment.’” Clearly, she believes that this phrase “has been interpreted very broadly by regulators to mean a lot more things.” Yet, the law allows some room for variations, which “may be allowed to the extent that recognized, clinically appropriate standards allow for a difference.” So, she concludes, “I believe that insurance companies will be able to manage benefits so long as we back our decisions with reasonable, clinically appropriate standards.”
The large MBHOs Greenberg represents also hoped for a different outcome regarding the issue of whether “separate” deductibles for medical/surgical and mental health/substance use treatment services would be allowed by the IFR.
“We were disappointed by the decision to apply one unified deductible,” says Greenberg, citing experts who say that the wording of the MHPAEA itself “could go either way” on deductibles. For payers, the single deductible raises a practical problem—administering the deductible in real time. “Take for example a patient who takes a day off of work to do a few medical appointments. If you meet your deductible sometime during that day, how will you know? It can be done, but it won’t be easy.”
She points out a different concern for consumers: Employers will no longer be able to encourage greater use of behavioral health services by offering lower deductible levels for those relative to medical/surgical benefits. Instead, such employers will likely combine deductibles into a single, larger amount. “One deductible sounds good, sounds like parity, but isn’t good for every consumer.”
“Overall, it’s too early to tell if there will be negative consequences,” says Greenberg. “But there could be issues because the rules are more expansive than what business and insurance thought was the intent. This could lead some employers to rethink some aspects of their benefits. And nobody wants that.”
For organizations with plan years starting July 1, Greenberg asserts that those who assumed separate deductibles, which were “not an unreasonable expectation,” now have a lot of work to produce a unified deductible across all categories in all plans. For large employers with multiple plans, that will be a lot of work.
“There’s a lot of good here, but also a lot of unknowns and uncertainty,” says Greenberg. “Unfortunately, I think a lot of the uncertainties regarding the rule will end up being decided in state courts. This is costly, time consuming, and not ideal but often the way the details of regulations are determined."