It may be the law of the land, but enforcement isn’t keeping up with violations of the federal Mental Health Parity and Addiction Equity Act of 2008.
A recent report by Modern Healthcare examined five different types of violations for fiscal 2017 as enumerated by the Department of Labor: 49 percent were non-quantitative treatment limitations, including restrictive fail-first policies, prior authorization requirements and written treatment plan requirements. In addition, 28 percent were quantitative treatment limitations, including higher copays or lower visit limits than for medical/surgical care; cumulative treatment limits; impermissible annual limits; and benefit classifications.
Families are having to battle insurers, often without help, for such scenarios as insurers stopping payment for residential care; delays in approving payment by insurers despite patients awaiting medication-assisted treatment for acute withdrawal symptoms; and tougher approval standards for behavioral care than for medical care.
According to Modern Health Care’s coverage, not only are insurers “increasingly … using undocumented utilization review rules and procedures, known as non-quantitative treatment limitations, or NQTLs, to deny claims,” but “HHS has been sluggish in enforcing parity in its areas of responsibility, including Medicaid and the Children’s Health Insurance Program.”
“We run into the problem that the days the insurer has approved for residential treatment have ended, and we’ll want to prescribe an anti-craving medication before the patient leaves,” Michael Morrison, executive vice president of Preferred Family Health Care, a behavioral health and substance abuse treatment provider in Missouri and four other states, told Modern Healthcare, adding, “But the insurer often won’t make a decision until after the person is already discharged. It’s a Catch-22, and our clients are the ones who suffer.”
Advocates are pushing for regulators to certify that health plans are in compliance with parity rules before they can be offered on the market. That’s done by only a few states at present, with others relying on a complaint-driven regulatory model that isn’t particularly effective.
Insurers, for their part, blame a shortage of behavioral health professionals, as well as a lack of standards for measuring quality and outcomes.
Strengthening measures for the original parity law were included in both the Affordable Care Act and the 21st Century Cures Act and actually give regulators significant authority to make sure insurers comply for both public and private health insurance, such as a requirement for plans to pay all similar claims that were denied—this can be compelled by the Employee Benefits Security Administration and is known as a global correction. EBSA can also require that the plan fix its policies and procedures.
Despite widespread lack of parity, enforcement is no walk in the park either, thanks to limited resources among enforcing agencies to compel compliance. This is also despite numerous requests by Labor Department Secretary Alex Acosta of Congress for more enforcement power, including the ability to impose civil monetary penalties for violations. Thus far, however, Senate Republicans on the Health, Education, Labor and Pensions Committee narrowly blocked an amendment, introduced by Sen. Chris Murphy, D-CT, in April that would do just that. Unsurprisingly, insurers are against more enforcement authority as well.
The result: private class action litigation, some cases having already resulted in settlements. But that’s not enough, say advocates, who point out that there would be a lot more clout in suits if they were backed by more stringent enforcement efforts on the part of regulators.
“What [the Labor Department] can’t do now is say, ‘You’ve acted egregiously; we’ll fine you to deter you from committing other clear violations in the future.’” Ellen Weber, vice president for health initiatives at the Legal Action Center, which is involved in a five-state campaign to strengthen parity enforcement, told Modern Healthcare. “Just making them go back and pay individual claims amounts to pennies for the carriers.”