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Parity delayed is parity denied, say advocates

September 20, 2012
by Alison Knopf
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After a four-year wait, some wonder if final MHPAEA rules will ever arrive
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Four years after the passage of the Mental Health Parity and Addiction Equity Act (MHPAEA), an act requiring that treatment for substance use disorders and mental illness be at parity with that for medical-surgical conditions, there is still no final rule for implementing the law. The law was enacted on October 3, 2008, with implementing regulations scheduled for release within a year. However, no regulations were completed until February of 2010, and then those were issued as “interim final rules”—in other words, not final.

Still, the law has resulted in some improvements, especially in areas that can be readily quantified, such as outpatient settings where there are now fewer problems with disproportionately high copayments, says Carol McDaid, principal with Capitol Decisions and a leader in the 16-year push for parity.

But there have been problems with non-quantitative treatment limitations (NQTLs)—restrictions on care that are based on factors other than number of days, visits, or dollars. Given the passage of time and the willingness of federal officials to look away as some state insurance commissioners ignore flagrant abuses of the MHPAEA, treatment providers are increasingly cynical about whether parity will ever be enforced.

“There are good reasons for providers to be cynical,” McDaid tells Behavioral Healthcare. “That’s why we’re asking for a final rule.”

Too many shades of gray

The interim final rule (IFR) includes too many gray areas, making it easy for regulators to shy away from rigorous enforcement. The two main areas in dispute are scope of service and NQTLs. For scope of service, the main problem for behavioral healthcare involves inpatient treatment. Specifically, should inpatient treatment for mental illness or substance abuse be provided at parity with inpatient treatment for medical-surgical conditions? For organizations that provide inpatient, residential, or intensive outpatient services, it’s a huge question, given the ongoing difficulty with getting such services first, authorized and second, paid for by an insurer.

McDaid explains that the scope of service issue is clear in the body of the IFR, in which six classifications of services are specified:

·         inpatient, in-network

·         inpatient, out-of-network

·         outpatient, in-network

·         outpatient, out-of-network

·         emergency care

·         prescription drugs

Under the IFR, the treatment limitations applied to behavioral health care must not be more restrictive than those applied to medical-surgical care within each classification. For example, if a plan requires a 20 percent deductible for out-of-network inpatient care, it can’t require a higher deductible for out-of-network behavioral health care.

Inpatient vs. residential

Many providers don’t want to use the word “residential” anymore, because it’s too ambiguous. The mental health community thinks it means a group home. The insurance industry may think it’s domiciliary. The average person thinks inpatient and residential mean the same thing, but health plans don’t, notes McDaid.

Insurance companies want scope of service addressed as well. Pamela Greenberg, president and CEO of the Association for Behavioral Health and Wellness (ABHW), which represents managed behavioral healthcare organizations (MBHOs), agreed that there is a desire to have this addressed further. “They addressed it somewhat by talking about the classifications, but it needs to be more detailed and specific,” she told Behavioral Healthcare. “Right now we pay for residential treatment, but they know we need more guidance on this.”


One of the most onerous of the NQTLs is known as “fail-first,” in which insurance companies require patients to fail at a lower level of care before they will authorize a higher level. It works this way: A provider determines that a patient needs inpatient treatment, based on clinical needs. The insurance company refuses to authorize the admission, saying that the patient should get outpatient treatment first. Then, when the patient does not succeed at outpatient, inpatient is authorized. If “fail-first” approaches to treatment are used more in substance use disorders and mental illness than in medical-surgical conditions, the insurance company is violating the parity regulations. “We aren’t seeing the level of enforcement that we would like for NQTLs,” said McDaid.

But Greenberg thinks it’s very difficult to enforce NQTLs. “Certainly the federal government and states to some degree have been trying to implement parity,” she said. “But NQTLs are a difficult area, and I don’t know what more guidance can say to make it clearer.”

Three MBHOs—ValueOptions, Magellan, and Beacon—sued the federal government two years ago over the IFR because they said it was published without a comment period; comments by press spokesmen at the time indicated that the insurance companies did not think one could compare care for behavioral health problems to care for medical-surgical problems. They lost their case in court, but Greenberg is still concerned that the NQTLs not be enforced because, she said, the comparisons can’t be made.