Frustrated by what they consider a lack of clarity from the federal government on how to enforce a landmark mental health parity act, some Connecticut officials want the state to issue its own guidance for interpreting the law.
“We just can’t wait any longer,” said Anne Melissa Dowling, the state’s deputy insurance commissioner. “There’s just too many families … in limbo.”
The federal government issued an interim regulation in 2010, two years after the law passed. It hasn’t yet produced a final rule.
Dowling and Mental Health and Addiction Services Commissioner Patricia Rehmer have recommended that state lawmakers establish a study group to develop legislation that would provide guidance on how to enforce provisions of the law that they say the existing federal regulation doesn’t address thoroughly enough.
But representatives from the insurance industry say they’re expecting a final federal regulation to be issued later this year, and think it’s smarter to wait.
“To be developing a state policy and approach that may well be in conflict with what the feds decide in a few months doesn’t really make much sense,” said Keith Stover, a lobbyist for the Connecticut Association of Health Plans.
The mental health parity law prohibits health plans from placing limits or costs on mental health or substance-abuse services that are more restrictive than those placed on medical services. There’s no across-the-board requirement that a health plan cover certain mental health treatment, but the coverage it offers must be handled comparably to coverage for medical care.
The state’s insurance department has come under fire for not adequately enforcing the mental health parity law, but has argued that ambiguities in the regulation make it difficult to do so.
When it comes to things that can be quantified, like the cost of a copayment or the number of visits allowed in a year, it’s clear what’s allowed and what’s not, Dowling and Rehmer said.
But advocates, regulators and the insurance industry have said there’s not enough clarity about how to handle “non-quantitative” requirements. Those can include decisions about whether a service is considered medically necessary, policies about whether patients must first try lower-cost therapies before costlier ones are covered, or decisions about whether patients need advance authorization before treatment will be covered.
The interim regulation says those types of limits on mental health services must be comparable to limits placed on medical services and applied no more stringently — unless clinically appropriate standards of care allow a difference.
But there’s no guidance on how that exception works. That makes the provision difficult to enforce, regulators say. And advocates believe it’s allowed things they consider to be violations of the parity law to continue.
Psychiatrists, for example, complain that psychiatric hospitals must get separate approval for every day a patient stays there, even though insurers pre-approve multiple days of hospitalization for medical conditions.
“We’ve been waiting for quite some time to have the federal government define its non-quantitative requirements,” Dowling said. “My thinking was, ‘Let’s get the state to define them.’”
She acknowledged that any state-level interpretation would be trumped when the federal government issues its final regulation, but she said she hopes the state’s work could serve as a template for the federal government.
“In the best-case situation, they would get out in front of us and be done,” Dowling said. “There is so much need for definition here, for us to regulate against, for one, and for families and patients to have clarity on.”
Dowling and Rehmer proposed state action in a letter to the Sandy Hook Advisory Commission, a group working on recommendations to address mental health, gun violence and school safety in response to the school massacre in Newtown. In their letter, Dowling and Rehmer suggested having a study group solicit expertise from experts and other concerned groups. Ultimately, the panel would develop proposed legislation to define non-quantitative requirements.
“We believe Connecticut could become a leader in this area, by developing and defining clear specific criteria for non-quantitative requirements under mental health parity, which health insurers and HMOs operating in Connecticut must follow,” Dowling and Rehmer wrote. “In our view, it is appropriate to act expeditiously, rather than wait for possible further federal action.”
But Cynthia Michener, a spokeswoman for Aetna, said the state should wait for federal guidance. She noted that Aetna has long supported mental health parity and pushed for the law’s adoption.
“States would benefit from first seeing the final rules before deciding whether to develop their own,” she said. “The published federal interim rules already are very comprehensive. We advocate for one set of standards to follow. Experience under the former web of varying state parity laws shows that different sets of standards generates confusion for providers, patients and insurers.”
The insurance department drew criticism for its handling of mental health parity issues in a report last year by the legislature’s Program Review and Investigations Committee staff. The report, which examined substance abuse treatment options for youth with health insurance, said the department doesn’t provide enough oversight of behavioral health coverage and doesn’t check that plans it regulates comply with all aspects of the parity law.
The insurance department took issue with some of the report’s findings, and noted in a response that the lack of specificity in the parity law “creates regulatory challenges.”
The report also found that the state’s Medicaid program covers a “slightly wider range” of treatment options and has higher coverage approval rates than commercial insurance plans.
Rehmer hopes the study group she and Dowling recommended could also address broadening private insurance coverage for mental health services that are typically available to people covered by Medicaid or who don’t have insurance. In private health plans, they’re often either not covered or hard to access. The services include “recovery supports” like case management and peer support programs.
“It’s just in many ways, from where I sit, the oddest thing because I wouldn’t want my child on Medicaid for medical reasons. I’d want them to have access to the physicians that they have access to through Blue Cross Blue Shield,” Rehmer said. “But if I had a young adult with a psychiatric disorder, I’d want them on Medicaid because then they’d be eligible for our system.”
Rehmer said many people with private insurance incorrectly believe that mental health parity means parity between what the public system provides and what private insurance covers. She said she hears from people with insurance, trying to get their relatives access to her agency’s system, although it serves people in Medicaid or without insurance.
“I’m put in this awkward position of having a frantic [insured] parent on the other end of the phone, wanting to get their young adult into our young adult program, wanting to get their chronic substance abusing daughter into a 30-day length-of-stay rehab program, looking for direction,” Rehmer said. “And it’s really about the insurance coverage and what they’re willing to pay for.”