Skip to content Skip to navigation

Significant challenges remain in enforcing parity laws

October 5, 2016
by Jill Sederstrom
| Reprints

The American healthcare system has made significant strides in improving behavioral healthcare coverage over the last decade, however, experts say it will still be years before true parity is achieved for patients.

Since the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) went into effect in October 2009, stakeholders have seen a significant expansion in service coverage. According to a recent report from the Substance Abuse and Mental Health Services Administration (SAMHSA), it’s estimated that nearly one-fifth of all Americans either have new or enhanced access to behavioral healthcare coverage as a result of the parity laws.

“It’s clear now that the parity laws—MHPAEA and its expansion through the Affordable Care Act—have created the potential for the largest expansion of mental health and substance use disorder treatment our nation has ever seen,” says Paul Samuels, JD, director and president of the Legal Action Center and co-chair for the Coalition for Whole Health.

In addition to expanded behavioral healthcare coverage, the laws break down barriers to coverage such as artificial caps on the number of inpatient days or outpatient visits.

“This law has accomplished a lot, particularly on the quantitative side,” says Andrew Sperling, director for legislative advocacy for the National Alliance on Mental Illness (NAMI).

While policy progress has been made, experts say significant hurdles remain for achieving true parity in care delivery and coverage for services to treat mental health and substance use disorders. The way that the laws play out in daily practice is not entirely straightforward.

“We really now have a very strong regulatory structure that has been finalized by the federal government for both commercial insurance and for the Medicaid expansion population, so the huge remaining challenge now is effective implementation and enforcement,” Samuels says.

Continued obstacles

Sperling says there is evidence that the old quantitative caps—such as limiting the number of office visits—have now been replaced with more aggressive management of the behavioral health benefit—with frequent reauthorization of coverage throughout the care plan, for example. The management techniques are classified as “nonquantitative” limits, and many question how parity can be applied.

“Insurers are not going to cap it at 20 inpatient days, but they’re going to be aggressive about utilization management for an inpatient admission,” he says. “They’re going to have a standing policy of preauthorization, and they’re going to do concurrent utilization review every day to make sure you really need to stay in the hospital. And a lot of that doesn’t occur in medical/surgical coverage.”

The industry is still struggling to evaluate how such nonquantitative treatment limits are meeting parity standards.

“It’s very easy to tell whether or not a plan is imposing a separate higher deductible or a separate higher cost sharing,” Sperling says. “It’s much more subtle in the ways in which they might use aggressive prior authorization policies or medical necessity criteria to limit access to mental health treatment in a way they are not doing for medical/surgical.”

For instance in addiction services, Samuels says patients with opioid or heroin addiction are often unable to gain access to medication-assisted treatment options.

“Sometimes that’s because the plans are not covering the medications, but often it’s because the plans are imposing medical management tools, such as requiring prior authorizations for medications, even if they don’t require prior authorization for other medications for very dangerous health conditions,” he says.

A parallel example that is often cited is coverage of insulin for those with diabetes. Insurers are unlikely to use quantitative or nonquantitative limits on insulin when it is prescribed for a patient, and many believe they should not use such limits for those who are prescribed medication for addiction treatment.

Nonquantitative treatment limits aren’t the only obstacle for the industry. Harry Nelson, JD, a founder and managing partner in Nelson Hardiman, a Los-Angeles based law firm that focuses on healthcare regulation, says he believes spiraling healthcare costs are driving insurance companies to drastically reduce what they are paying behavioral healthcare providers.

“We’ve seen the levels of reimbursement come way, way down,” he says. “So for residential treatment, we’ve seen reimbursements for out-of-network care drop from a median of something like $1,700 to $1,800 per day last year to a number like $200 to $300 a day this year,” he says.

Spiraling healthcare costs, along with increased competition from new providers will create a greater focus for insurers in the years ahead on evidence-based, lower cost means of treatment, Nelson says. But that shift is also occurring on the medical/surgical side as well.

Why the struggle?

Experts say there are several reasons why regulators continue to struggle with parity enforcement. For one, it’s a new concept that many are still trying to fully define and understand. Behavioral health and medical/surgical care aren’t clear cut parallels, so measuring on-par service coverage is challenging at best.

“This is both an education process but also an advocacy process as we need to educate the state regulators about the importance of enforcement and also to mobilize consumers and advocates,” Samuels says.