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Significant challenges remain in enforcing parity laws

October 05, 2016

The American healthcare system has made significant strides in improving behavioral healthcare coverage over the last decade, however, experts say it will still be years before true parity is achieved for patients.

Since the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) went into effect in October 2009, stakeholders have seen a significant expansion in service coverage. According to a recent report from the Substance Abuse and Mental Health Services Administration (SAMHSA), it’s estimated that nearly one-fifth of all Americans either have new or enhanced access to behavioral healthcare coverage as a result of the parity laws.

“It’s clear now that the parity laws—MHPAEA and its expansion through the Affordable Care Act—have created the potential for the largest expansion of mental health and substance use disorder treatment our nation has ever seen,” says Paul Samuels, JD, director and president of the Legal Action Center and co-chair for the Coalition for Whole Health.

In addition to expanded behavioral healthcare coverage, the laws break down barriers to coverage such as artificial caps on the number of inpatient days or outpatient visits.

“This law has accomplished a lot, particularly on the quantitative side,” says Andrew Sperling, director for legislative advocacy for the National Alliance on Mental Illness (NAMI).

While policy progress has been made, experts say significant hurdles remain for achieving true parity in care delivery and coverage for services to treat mental health and substance use disorders. The way that the laws play out in daily practice is not entirely straightforward.

“We really now have a very strong regulatory structure that has been finalized by the federal government for both commercial insurance and for the Medicaid expansion population, so the huge remaining challenge now is effective implementation and enforcement,” Samuels says.

Continued obstacles

Sperling says there is evidence that the old quantitative caps—such as limiting the number of office visits—have now been replaced with more aggressive management of the behavioral health benefit—with frequent reauthorization of coverage throughout the care plan, for example. The management techniques are classified as “nonquantitative” limits, and many question how parity can be applied.

“Insurers are not going to cap it at 20 inpatient days, but they’re going to be aggressive about utilization management for an inpatient admission,” he says. “They’re going to have a standing policy of preauthorization, and they’re going to do concurrent utilization review every day to make sure you really need to stay in the hospital. And a lot of that doesn’t occur in medical/surgical coverage.”

The industry is still struggling to evaluate how such nonquantitative treatment limits are meeting parity standards.

“It’s very easy to tell whether or not a plan is imposing a separate higher deductible or a separate higher cost sharing,” Sperling says. “It’s much more subtle in the ways in which they might use aggressive prior authorization policies or medical necessity criteria to limit access to mental health treatment in a way they are not doing for medical/surgical.”

For instance in addiction services, Samuels says patients with opioid or heroin addiction are often unable to gain access to medication-assisted treatment options.

“Sometimes that’s because the plans are not covering the medications, but often it’s because the plans are imposing medical management tools, such as requiring prior authorizations for medications, even if they don’t require prior authorization for other medications for very dangerous health conditions,” he says.

A parallel example that is often cited is coverage of insulin for those with diabetes. Insurers are unlikely to use quantitative or nonquantitative limits on insulin when it is prescribed for a patient, and many believe they should not use such limits for those who are prescribed medication for addiction treatment.

Nonquantitative treatment limits aren’t the only obstacle for the industry. Harry Nelson, JD, a founder and managing partner in Nelson Hardiman, a Los-Angeles based law firm that focuses on healthcare regulation, says he believes spiraling healthcare costs are driving insurance companies to drastically reduce what they are paying behavioral healthcare providers.

“We’ve seen the levels of reimbursement come way, way down,” he says. “So for residential treatment, we’ve seen reimbursements for out-of-network care drop from a median of something like $1,700 to $1,800 per day last year to a number like $200 to $300 a day this year,” he says.

Spiraling healthcare costs, along with increased competition from new providers will create a greater focus for insurers in the years ahead on evidence-based, lower cost means of treatment, Nelson says. But that shift is also occurring on the medical/surgical side as well.

Why the struggle?

Experts say there are several reasons why regulators continue to struggle with parity enforcement. For one, it’s a new concept that many are still trying to fully define and understand. Behavioral health and medical/surgical care aren’t clear cut parallels, so measuring on-par service coverage is challenging at best.

“This is both an education process but also an advocacy process as we need to educate the state regulators about the importance of enforcement and also to mobilize consumers and advocates,” Samuels says.

Another factor is that enforcement is spread across three different federal agencies and 50 states. Nelson says the treatment industry is also in the early stages of organizing itself to be an effective advocate in Washington and at the state level.

“Parity really offers an opportunity for patients and treatment programs to be allies in demanding fair play and demanding that behavioral health needs aren’t like the poor relation of medical problems,” he says.

Consumers and behavioral healthcare providers can help improve enforcement by understanding parity rights and advocating for equal treatment. The federal Department of Health and Human Services offers a consumer guide on its website that suggests consumers consider their insurers’ formal appeals process when coverage is denied.

“We think that enforcement needs to include appropriate tools and training and messaging for consumers so they understand what parity is and then they can apply their understanding to their own insurance and actually become the vehicle for reporting violations of parity, which is how it will work best if we can actually get it implemented,” says Ron Manderscheid, executive director for The National Association of County Behavioral Health and Development Disability Directors and The National Association for Rural Mental Health.

For provider appeals, Nelson says adding specific language to identify what is believed to be a parity violation is one way to make appeals more effective.

Government efforts

Providers and consumers aren’t alone in their efforts to try to advocate for better enforcement.

This summer, SAMHSA released a report of best practices at the state-level for implementing parity and the Department of Labor provided new guidance about what health plan provisions could trigger a violation of parity. In addition, President Barack Obama also created the Mental Health and Substance Use Disorder Parity Task Force in March, which will present its recommendations on improving parity enforcement to the president this fall.

“We’re eagerly looking forward to that report, and we’re very hopeful that it will be a very valuable contribution to the success of parity in getting millions more Americans the mental health and substance use care they need going forward,” Samuels says.

While Nelson says federal efforts will help improve the overall climate, they won’t be a silver bullet.

“I do think it will have a positive impact,” he says. “It’s very incremental, and it’s gradual. The reality is that the federal government and state governments have very limited resources that they need to allocate across a broad array of problems.”

The future ahead

Despite the challenges, experts say they remain optimistic about the future of parity. It’s a process that will be slow but will ultimately bring significant change to the behavioral healthcare industry.

Manderscheid, who also serves as a co-chair for the Coalition for Whole Health, says one factor that could impact the speed of those changes is the result of the upcoming election.

“The Obama administration has been very friendly to the Affordable Care Act. It’s actually been very friendly to behavioral health and moving the behavioral health agenda,” he says. “We simply don’t know where that’s going to go after the next election.”

But, Samuels says he remains “cautiously optimistic” about the road ahead regardless of the election result. He says on the federal level, behavioral healthcare initiatives have previously achieved bipartisan support, and he’s hopeful that continues in the years to come. He also believes the states are moving closer toward a tipping point where they will step up their own enforcement of the laws.

“It’s really critically important for states, insurance departments, state Medicaid directors, state attorneys general to step up to the plate and enforce parity,” he says.

Five years from now, Nelson says, the work still may not be done.

“I think there will still be a gap, and there will still be a lot to talk about what needs to happen,” Nelson says.

Jill Sederstrom is a freelance writer based in Kansas City.

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