[NYAPRS Enews] NYT, MHW: Advocates and Insurers Spar Over New MH Parity Rules

[Harvey Rosenthal]

Fight Erupts Over Rules Issued for 'Mental Health Parity' Insurance Law

By Robert Pear  New York Times   May 9, 2010

 

WASHINGTON - A huge fight has erupted over rules issued by the Obama
administration to enforce a 2008 law that requires equal insurance
coverage for the treatment of mental and physical illnesses.

 

The fight offers a taste of the coming battle over rules to remake the
health care system under legislation pushed through Congress by
President Obama.

 

Insurance companies and employer groups are lobbying the White House to
delay and rework the rules on "mental health parity." Insurers and many
employers supported the 2008 law, but they say the rules go far beyond
the intent of Congress and would cripple their cost-control techniques
while raising out-of-pocket costs for some patients.

 

Advocates for patients generally support the rules, saying they will
eliminate many forms of insurance discrimination against people with
mental illness. The rules are also supported by the American Medical
Association, the American Psychiatric Association and House Democrats,
most notably Representative Patrick J. Kennedy of Rhode Island.

 

The goal of the law is to abolish discriminatory insurance practices
frequently applied to coverage for the treatment of mental health
disorders and substance abuse. Under the law, insurers cannot set higher
co-payments and deductibles or stricter limits on mental health benefits
than they set for the treatment of physical illnesses like cancer and
diabetes. For decades, such disparities have been common.

 

Insurers and employers agree that the law prohibits them from setting
numerical limits on hospital inpatient days and outpatient visits for
mental health services if they do not impose such limits on other types
of medical care.

 

But insurers say the Obama administration went overboard when it tried
to regulate "nonquantitative treatment limits." These include the
techniques used by insurers to manage care, the criteria for selection
of health care providers and the rates at which they are paid.

 

The Blue Cross and Blue Shield Association, Aetna and other insurers
have urged the federal government to drop this aspect of the rules. The
purpose of the law was to ensure parity in benefits for patients, not
"parity in provider reimbursement," said Justine Handelman, executive
director of the Blue Cross and Blue Shield Association.

 

But Carol A. McDaid, a lobbyist for a coalition of mental health
advocates, said, "Patients are not getting access to mental health care
because many insurers are not paying enough to cover the cost of
services."

 

This may have three consequences for patients and their families,
advocates say. Patients may be unable to find mental health experts in
their health plan's network of providers. If they go outside the
network, they typically pay more. And if they cannot afford it, they may
not receive treatment at all.

 

The American Psychiatric Association said that nonquantitative treatment
limits, though less visible than limits on the number of doctor visits
or hospital days, could be more insidious.

 

Dr. James H. Scully Jr., chief executive of the association, said some
insurers had tried to "circumvent the law" by "imposing new requirements
for prior authorization and the submission of treatment plans for mental
health services where there were no comparable requirements on the
medical-surgical side."

 

Insurers strenuously object to one provision of the rules that requires
them to maintain a single deductible for all medical and mental health
services combined. This is a significant departure from the industry's
current practice of separate deductibles.

 

As a result of the change, insurers say, many mental health patients
will face higher out-of-pocket costs because the combined deductible
will almost surely be higher than the current one for mental health
services alone.

 

But in a letter to the administration last week, leading House Democrats
said Mr. Obama was right to prohibit separate deductibles. The law, they
said, was adopted to end such inappropriate distinctions between medical
and mental health care services.

 

A number of companies like Aetna, Magellan Health Services and
ValueOptions specialize in managing mental health benefits.

 

In issuing the new rules, the Obama administration praised the work of
such companies, saying they increased the use of mental health care
while holding down costs.

 

But Pamela B. Greenberg, president of the Association for Behavioral
Health and Wellness, which represents these companies, said the new
rules would "hamstring" their ability to use the tools that have proved
effective in managing mental health benefits.

 

In a suit over the rules, Magellan and other companies said the concept
of nonquantitative limits was "boundless and ill defined" and would
reach virtually every policy and procedure used to manage mental health
benefits.

 

One premise of the law is that mental illnesses often have a biological
basis and can be treated as effectively as many physical ailments. But
insurers say it is impossible to use the same techniques in managing the
treatment of colon cancer and schizophrenia, or heart failure and major
depression.

 

http://www.nytimes.com/2010/05/10/health/policy/10health.html?pagewanted
=print 

--------------

Parity Rule Comment Submissions Spark Dual Calls For Enforcement,
Withdrawal

Mental Health Weekly  May 10, 2010

 

The behavioral health community, applauding the parity regulations,
submitted Interim Final Rule (IFR) comments on the mental health parity
law, and say their biggest concern moving forward is enforcement of the
regulations. A managed behavioral health company citing complex rules is
calling for the IFR to be republished as a proposed regulation in order
for regulators to consider their concerns.

 

Mental health advocacy groups and organizations submitted their
respective comment letters to the Departments of Labor, Health and Human
Services (HHS) and Treasury. Comments on the IFR for the Paul Wellstone
and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008
(MHPAEA) were due on or before May 3rd.

 

"We support the interim final regulations released by the three
departments earlier this year, as it sets forth a parity standard
consistent with the law, a prohibition against separate deductibles and
out-of-pocket maximums and other financial requirements," Laurel Stine,
director of federal relations for the Judge David L. Bazelon Center for
Mental Health Law, told MHW. "We believe the regulations follow the
intent of the mental health parity law."

 

Stine pointed to comments published from the Mental Health Liaison Group
(MHLG), a membership group of more than 55 national organizations,
including the Bazelon Center and other advocates, professionals,
providers, consumers and family members.

 

"Consistent with the comments from the MHLG, we support a clarification
of coverage for a full scope of services comparable to medical/surgical
conditions," said Stine. The promotion of evidence-based services that
promote the recovery of persons with behavioral health conditions,
should also be clarified in the regulations, said Stine.

 

Advocates are also urging the Centers for Medicare and Medicaid Services
(CMS) to issue timely rules on the application of the parity law to
Medicaid managed care plans.

 

"Enforcement of the rules is a top priority for us, in addition to
finalizing the rules quickly," Jennifer Tassler, J.D., deputy director
of regulatory affairs for the American Psychiatric Association (APA),
told MHW. Tassler said the APA strongly supports the single deductible
requirement for all health care costs as it supports the intent of the
parity law.

 

In one of its recommendations to the federal agencies, the APA said
single combined deductible protection would most directly benefit those
with serious and persistent mental illness, many of whom have co-morbid
medical and surgical conditions and would have difficulties meeting two
separate deductibles.

 

"The National Alliance on Mental Illness [NAMI] thinks the IFR rules are
positive, and that they spell out the breadth and depth of the
obligations of group health plans to meet the parity standards," Andrew
Sperling, director of federal regulations for the National Alliance on
Mental Illness (NAMI), told MHW.

 

The IFR divides benefits into six classifications: inpatient,
in-network, inpatient, out-of-network, outpatient, in-network,
outpatient, out-of network,

emergency care and prescription drugs. Sperling said NAMI would like the
IFR to clarify that within each of the six classifications, if a plan
provides mental health and substance use benefits, those benefits must
be provided at parity with the medical/surgical benefits provided in
each classification.

 

'Complex' Regulations

The Association for Behavioral Health and Wellness (ABHW), in its
response to the IFRs, said that they provide much needed guidance
regarding financial requirements and quantitative treatment limitations.
In other respects, however, the IFRs stray far beyond the scope of both
MHPAEA's terms and congressional intent, they wrote. ABHW members are
involved in the management of behavioral health benefits under group
health plans as managed behavioral health organizations (MBHOs).

 

A key recommendation, ABHW wrote in its comment letter, is that the
agencies should withdraw the IFRs and republish them as proposed
regulations. Although the Departments of HHS, Labor and Treasury issued
a Request for Information (RFI), this was merely an inquiry process
designed to educate the agencies about this complex area, they wrote,
adding that it was in no way a substitute for a real notice-and-comment
process.

 

"We would like to see the regulators withdraw the IFR and go to a
proposed rule because that would give us the ability to have the
regulators consider our comments before we have to implement the rule,"
Pamela Greenberg, ABHW president and CEO told MHW. "We believe that if
the regulators have the benefit of our comments and a better
understanding of the impact of the IFR there are things that they would
change."

 

For example, the IFR establishes a new term, not defined in the
legislation, called nonquantitative treatment limits (NQTLs), said
Greenberg.

The parity standard in the law cannot be applied to NQTLs because the
parity standard was written specifically for quantitative limits, she
said.

 

"So the IFR also creates a new parity standard for the new NQTLs," said
Greenberg. "This standard is vague and difficult to apply." "We do not
expect a final to be issued with any speed; in fact sometimes IFRs take
many years or never become final," said Greenberg. "The regulators have
a lot on their plate right now with health care reform which will in all
likelihood further delay a final parity rule."

 

UnitedHealth Group has also cited complex regulations in its comment
letter. "We do feel the regulations have gone beyond the original intent
of the parity law and creates a complexity that adds no value to
consumers," Rhonda Robinson Beale, M.D., chief medical officer for Optum
Health Behavioral Solutions, a member of UnitedHealth Group, told MHW.

 

The UnitedHealth Group comment letter cites a common plan design
scenario of a separate but equivalent deductible (e.g., a $250
deductible for medical and a $250 deductible for mental health/substance
use). A plan sponsor, in order to keep the plan costs neutral, will
likely adjust their deduction to a higher amount (e.g., $350 or $400)
and apply it to both medical and mental health benefits or even combine
the two amounts and impose a combined $500 deductible, they wrote. A
plan participant will need to spend more out-of-pocket to meet his or
her deductible as a direct result of the requirement to combine cost
sharing under the IFR, they wrote.

 

"The regulations raises costs administratively and raises costs for
members," said Beale. The regulations have introduced a level of
complexity that [makes it] very difficult to put all the pieces that
they have requested in place within the time frames that are offered. 

 

"It has been clear in our interaction with the regulators that they were
not familiar with the time frames that are needed for plans to go into
effect," said Beale. "It is not uncommon when elements of a plan are
being changed, that at least six months of planning is required prior to
the implementation of a new plan," she said. For example, notifications
have to go out to members and plan designs have to be loaded into
systems, Beale noted.

 

UnitedHealth Group said their goal is to encourage the development of a
final rule that preserves MHPAEA's intent of increased consumer access
to appropriate, quality and cost-effective behavioral health services.

 

The Bazelon Center's Stine, said that despite the backlash from some
companies seeking additional time or who may oppose the IFR, advocates

and consumers are generally pleased with the strong parity rules. "We're
very appreciative of what the [federal] departments have come out with,"

said Stine. "At the end of the day, it's about ensuring people who need
mental health services and treatment are free from discrimination in
health

insurance." 

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