Although the word from the Department of Health and Human Services was emphatic – health insurance plans sold in the state insurance exchanges must include coverage for mental health and substance use disorder (MH/SUD) services, based on the final rule on the exchanges released February 20—the final rule governing parity is still only in “interim final” form.
Comments filed by the Coalition for Whole Health on the proposed rule said that HHS, in thejust-released final rule that covers standards for the Essential Health Benefit (EHB), should “provide a detailed framework for states, insurance commissioners, exchanges, consumers, providers, and other stakeholders to detail the process for supplementing plans with deficient MH/SUD coverage to ensure that the EHB meets parity requirements.”
But the new EHB final rule doesn’t do that. Instead, it continues to allow states to decide how, and how much, to supplement “deficient” MH/SUD benefits in health insurance plans on the individual market in particular.
The Coalition for Whole Health maintains that this is a recipe for anything but parity in the EHB coverage that is to be offered to Americans starting in 2014. It says that “without complete, detailed plan information about benefit coverage in each of the base-benchmark plans, it is not possible to fully determine whether the MH and SUD coverage in each of the states complies with parity.”
Under the ACA, the concept of parity - the notion that coverage limitations for MH/SUD services must be essentially similar to (or no more restrictive than) those for similar categories of medical/surgical services - is extended beyond employer plans to small-group and individual plans, which will be sold mainly on the exchanges.
That’s a good thing, say advocates. What is not good is that the concept of parity is still defined by the 2010 interim final rule that implemented the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). For over three years, everyone—advocates, providers, insurers, and consumers - has been waiting for the clarity – and the “teeth” or enforcement power - that comes when a final rule is issued.
Plans are currently operating with “sparse or single levels of inpatient services, sparse or very limited levels and types of outpatient services, and/or disproportionate restrictions on MH/SUD prescription drugs such as ‘fail-first’ policies,” the Coalition for Whole Health commented. These cost-containment measures “appear to be applied more stringently” for behavioral health care benefits, it said.
If this is true, such plans are illegal under the MHPAEA and the interim final rule. Yet, such plans are they are operating, and not only that, they were submitted as benchmark plans. Will the federal government challenge the states on these? No one knows. What is clear is that the newly released EHB final rule requires no such federal challenge.
A victim of success?
In retrospect, it appears that the success and momentum of the MHPAEA may have been derailed by an even bigger success– the subsequent passage of the ACA. Regulators had to set aside parity-related regulations as the White House strove to accomplish health care reform in the face of significant pushback from various segments of the marketplace and from political enemies.
The need for parity has not escaped legislators, however. Senators Al Franken of Minnesota and Tom Harkin of Iowa wrote a letter to Vice President Joe Biden in January saying that the lack of a final rule for the MHPAEA was hurting people who need mental health services. The senators wrote that “[W]hile this historic law was passed four years ago, the administration has yet to issue a final rule, potentially leaving many Americans who need and have a right to these services without access to them.”
Lobbyists interviewed by Behavioral Healthcare indicated that there were good reasons – politically – for the all-out focus on the ACA. There were great time constraints on the multiple ACA regulations, which could not be issued until the after the Supreme Court ruling upholding the law itself was issued last year.
The MHPAEA is already the law of the land, and its 2010 interim final rule has already improved the parity of benefits by helping to eliminate quantitative limitations – such as different or higher co-pays and day and dollar limits – for MH/SUD services. But under the interim rule, non-quantitative treatment limitations (NQTLs) are still a problem, as are definitions involving “scope of services,” which some providers hoped would help with access to residential treatment. Thus, the clarity needed to enforce parity on these two issues will come only after final MHPAEA regulations are released.
“Like everything in life, there are people who want the far side of the extremes,” said Carol McDaid, principal at Capitol Decisions. A key argument raised by concerned employer/insurance groups is that the differences between behavioral health and medical/surgical services are so significant that they cannot be compared for purposes of determining that NQTLs are equally applied. They add that the MHPAEA did not actually mention NQTLs, but that these were inserted in the interim final rule and therefore can be changed.