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.
“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.”