It wasn’t one of the more headline-grabbing of the president’s announcements made this week in response to the shooting at Newtown’s Sandy Hook Elementary School, an executive order committing to finalize regulations for the 2008 mental health parity law.
But it was a big deal for people like Charles Ingoglia, who say the lack of a final regulation makes it hard to ensure that people get insurance coverage for mental health and addiction treatment.
“We’re very thrilled that the president included this in his announcement,” said Ingoglia, senior vice president for public policy and practice improvement at the National Council for Community Behavioral Healthcare. “In a way, it’s long overdue.”
State Healthcare Advocate Victoria Veltri said not having a final regulation is the biggest barrier to enforcing the federal parity law, which prohibits health plans from placing limits or costs on treatment for mental health and substance abuse that are more restrictive than those imposed on medical and surgical services.
The federal government issued interim rules in 2010. But advocates say ambiguities in that regulation allow health plans to continue practices that they believe violate the spirit of parity.
Those include requiring psychiatric hospitals to get approval for every day a patient stays there — psychiatrists say they’re scrutinized daily about whether patients who attempted suicide are still intent on dying — while health plans typically pre-approve multiple days of hospitalization for medical conditions.
Some insurers require advanced authorization before covering mental health and addiction services, even though they don’t for most medical care. And advocates complain that some health plans have stopped covering residential mental health treatment and other types of care.
“Clarity of this law is crucial for providing guidance needed for consistent regulation and consumer protection,” Anne Melissa Dowling, the state’s deputy insurance commissioner, said in a statement.
Robert Zirkelbach, a spokesman for America’s Health Insurance Plans, said the insurance industry supported the mental health parity law and has been working to implement it in ways that work best for consumers.
“We’re operating under the rules that are in place and have been enforced for the past couple of years,” he said. “Certainly if additional guidance is issued, that’s something that we’re going to take a very close look at.”
Some advocates say that even if the final rule doesn’t interpret the law in all the ways they want, having clarity is more important.
“At this point, after so many years have gone by, we would rather have certainty than nothing, because no one knows,” said Carol McDaid, co-chair of the Washington D.C.-based Parity Implementation Coalition, a group of addiction and mental health consumer and provider organizations. “We don’t know how to tell patients the best way to appeal denied claims and I think some well-meaning health plans really don’t know how to implement the law.”
Consumer advocates and the insurance industry agree on the need for more clarity on certain provisions of the law, although they disagree on how they should be interpreted.
One area of confusion has to do with limitations on treatment.
Since the parity law took effect in 2010, health plans have gotten rid of quantitative limits like the once-common restriction on the number of outpatient therapy sessions covered in a year. That’s because such limits are infrequently, if ever, imposed on medical services.
The current regulation also requires parity in “nonquantitative” treatment limits, such as requiring authorization before a patient receives a service or requiring that a patient “fail” at one level of care before getting coverage for more intensive services. It requires that those limits be comparable and no more stringent than those applied to medical and surgical services, unless clinically appropriate standards of care allow a difference.
But the existing rule doesn’t define what that means.
Advocates say that makes it hard to enforce. A health plan could require prior authorization for mental health services and argue that it’s meeting the parity requirement because it also requires prior approval for physical therapy, even if that represents a small fraction of its services, Ingoglia said.
The insurance industry agreed on the need to define the terms in the regulation. But it has argued that some of the nonquantitative limits included in the interim regulation shouldn’t be subject to the parity law.
“The [parity act] was intended to provide better access to benefits by requiring parity with respect to limits on the number or days or treatments,” AHIP wrote in comments on the interim final rules. “The law was never intended to require balancing other plan design features between medical/surgical benefits and mental health and substance use disorder benefits.”
Fewer services covered
Another major area of dispute has to do with the type of services covered. Veltri and other advocates believe that parity requires health plans to cover a continuum of mental health services in the same way they would medical services — things that include outpatient doctor visits, cardiac rehabilitation, emergency room visits, prescription drugs and hospitalization.
But health plans don’t all agree with that interpretation, and McDaid said they don’t always cover a comparable continuum of services for behavioral health care, particularly intermediate levels of care that fall between outpatient visits and hospitalization.
“They’ve actually been declining since the law passed,” she said.
Ingoglia said some health plans have eliminated coverage for large categories of services, such as intensive outpatient services, partial hospitalization and other intermediate levels of care. He said that seems to violate the premise of parity.
“In my mind, the whole rationale for passing a federal parity law was to say that for individuals, families who are experiencing mental illness, that they should have access to the treatment that they need in order to get better,” he said.
In its comments on the interim final rules, AHIP argued that Congress didn’t intend the parity requirement to govern the types of services or care settings that health plans cover. The law wasn’t intended to require plans that offer mental health benefits to cover all mental health services, the group said.
Instead, AHIP argued, the issue of what services should be covered would be better addressed as part of the implementation of the federal health reform law, which requires health plans to cover “essential” benefits.
U.S. Sen. Richard Blumenthal, D-Conn., who has been pushing for a final regulation, praised the president’s action and urged the federal departments of labor and health and human services to quickly comply with his executive orders on mental health parity.
In addition to the order on the final parity regulation, Obama’s orders include clarifying what mental health services Medicaid plans must cover, and finalizing regulations that clarify how parity requirements and essential health benefits will be handled in the new insurance markets being created as part of federal health reform.
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