“Part of the issue is medical hasn’t been, and still isn’t, required to write these things down,” she said. “For example, if someone comes in with a heart attack, what are the medical management tools you use, when do you use them, and with what degree? These are things that are going to vary from doctor to doctor.” So there is no clear guidance on the medical-surgical side for insurance management, she said. “We’re being told to get the manual on the medical side, and to use it too,” she said. “The manual on the medical side doesn’t necessarily exist, and if it does, they’re not required to give it to us, because it’s considered proprietary.”
Given the difficulty of comparing behavioral healthcare to medical-surgical health care, said Greenberg, it’s “challenging for a state or the federal government to enforce” the NQTLs. She cited a report by RAND prepared for the federal Department of Health and Human Services in February called “Short-term Analysis to Support Mental Health and Substance Use Disorder Parity Implementation,” (link?) which says there are “justifiable” ways for plans and insurers to establish NQTLs for behavioral and medical-surgical benefits.
The RAND report states, in part:“The justifiable considerations identified by the panel included evidence of clinical efficacy, diagnostic uncertainties, unexplained rising costs, availability of alternative treatments with different costs, variation in provider qualifications and credentialing standards, high utilization relative to benchmarks, high practice variation, inconsistent adherence to practice guidelines, whether care is experimental or investigational, and geographic variation in availability of providers.”
Finally, Greenberg thinks providers are expecting too much from the parity law—it wasn’t meant for NQTLs, but only for day, visit, and dollar limitations, she said. “The problem is that people are expecting parity to be the solution to a lot of problems in the behavioral health field,” she said. “That wasn’t the intent. If you’re looking for it to solve every last thing, you’re going to be disappointed.” But she said parity was “a huge step forward.”
Of course, it has helped her association, which now has 100 million lives represented by its members, and is likely to grow even bigger under the Affordable Care Act’s expansion of Medicaid and health insurance exchanges. “I’m not cynical about parity,” she said. “Maybe we’re not at the finish line yet. But the combination of the MHPAEA and the ACA gives parity a lot of oomph.”
Finally, a final rule?
Meanwhile, the field is working hard to get the final rule – which will settle both the scope of service and the NQTL issues. “We are going to get the final rule, but it’s going to be after the election,” says David Wellstone, who is carrying on the fight for parity that was started by his father, Sen. Paul Wellstone (D-Minn.) who died in a plane crash, along with David’s mother and sister, in 2002. “Anyone who thinks the spirit of the law isn’t followed should file a complaint,” Wellstone said (for directions on filing a complaint, go to www.parityispersonal.org). Aware of the threat to residential treatment if parity isn’t enforced, Wellstone said: “We can’t let that happen. Losing residential is not an option.”
Wellstone’s passion for parity comes from his need to make sense of his life after the plane crash (his brother works with him, as well). “It’s entirely personal to me,” he told Behavioral Healthcare. “The length of time my dad fought tooth and nail for this – it’s something I have to do.” He said that getting involved with the parity advocacy movement has helped to re-engage him in life. “It helped to get me going again after losing my family,” he said, adding that he has met amazing people in the advocacy movement. “I take the view that we will succeed. I don’t entertain any other options.”
An interim final rule has the force of law, said McDaid, but regulators – and insurance companies – can use the lack of a final rule as an excuse to delay.
And everyone is clear on one thing – there won’t be a lot of activity on parity before the presidential election. “We don’t feel particularly picked on,” said McDaid. “In the health care world right now, if your issue doesn’t have to do with helping states set up their exchanges, nothing’s moving.”
Wellstone’s plan: “We have to re-elect President Obama, and then we need a very strong final rule.”