Compliance With ACA’s Parity Mandate Falls Short
Abstract
Strong oversight of health plans is needed to ensure that they comply with federal mental health parity laws and regulations.
Some health plans offered in health exchanges established by the Affordable Care Act (ACA) appear—on the basis of benefit summary information provided to consumers—to be out of compliance with the law, which requires parity coverage of treatment for mental illness and substance abuse as defined by the federal parity law.
A report in Psychiatric Services by Kelsey Berry and Haiden Huskamp, Ph.D., of Harvard, Colleen Barry, Ph.D., of Johns Hopkins, and Howard Goldman, M.D., Ph.D., of the University of Maryland found inconsistencies with the federal parity law in the benefit summaries for mental health and substance abuse services of health plans in two state-run health exchanges. Those inconsistencies—in quantifiable treatment limits (cost-sharing, deductibles, treatment limits) and nonquantifiable treatment limits (prior authorization and other strategies for restricting treatment)—may reflect either actual noncompliance or an effort by plans to dissuade potential consumers who expect to use mental health services from enrolling.
Empower Your Patients Regarding Parity Law
APA has produced a poster that spells out patients’ rights under the Mental Health Parity and Addiction Equity Act and the steps to take when a violation is suspected. Armed with this information, patients are in a stronger position to ensure that they are getting the mental health benefits they are afforded under the law. Psychiatrists are encouraged to download the poster and hang it prominently in their offices or clinics or use it as a handout; also, the link can be forwarded to others in the community, such as employers and members of the clergy. Federal law is clear that insurers can no longer discriminate against patients with mental illness. To download the poster, click here. A Spanish-language version of the poster is now being developed.
“Consumers select a plan based on their anticipated service needs by using the written coverage information provided through the exchanges,” the researchers said. “Benefit design information suggesting unequal requirements and limitations for behavioral health services, relative to other medical services, may affect plan choice decisions among consumers who expect to use behavioral health services.”
Moreover, APA General Counsel Colleen Coyle, J.D., and Irvin “Sam” Muszynski, J.D., director of APA’s Office of Healthcare Systems and Financing, said the report corroborates their own observations of how health plans are behaving with regard to parity requirements.
APA Pursues Parity Compliance
APA is following a multipronged strategy to ensure that health plans comply with the parity law and with the Affordable Care Act, which require plans to offer mental health benefits at parity with medical-surgical benefits. APA General Counsel Colleen Coyle, J.D., and Irvin “Sam” Muszynski, J.D., director of APA’s Office of Healthcare Systems and Financing, said APA is working in several ways to improve enforcement of parity:
Advocacy. APA has resolved hundreds of complaints regarding parity implementation by insurance plans in a manner favorable to patients and members, including removing double copayments and securing refunds for patients and members, eliminating prior authorization when applied inequitably to mental health, and reducing copayments where appropriate under the final rules. Many insurance plans have been responsive to APA’s inquiries and have worked to resolve issues, but others have not.
APA sued two insurers—Anthem and WellPoint—on behalf of its members and their patients in the United States District Court in Connecticut in an effort to improve network adequacy and access for patients. The court found that APA was not an appropriate party to raise that issue, but APA has appealed that decision to the 2nd Circuit Court of Appeals. Also, APA has resolved dozens of potential audit issues favorably to members, resulting in millions of dollars in savings.
APA is advocating on network adequacy issues on the national and state levels, including providing comments to the National Association of Insurance Commissioners on its model regulations regarding network adequacy and to several state insurance commissions on the same issue.
At least three federal courts have stated that the Mental Health Parity and Addiction Equity Act is a “civil rights law” designed to end discrimination in mental health/substance use disorder benefits. APA is seeking federal legislation to improve enforcement of parity laws.
Education. APA created the Mental Health Parity Poster and encouraged psychiatrists and other mental health clinicians to post it in waiting rooms to educate patients about their legal right to equal treatment (see box on facing page). More than 100,000 posters have been distributed, with district branches (DBs) and other associations and hospitals cobranding them. A Spanish-language version is being developed.
Additionally, APA is creating materials for DBs and members to help them understand parity legislation and network adequacy issues and to provide tools needed to join APA’s advocacy efforts. These are among other education efforts:
Fielding press inquiries on mental health parity and lack of mental health parity enforcement to provide background on the law and problems with enforcement.
Working with DBs to educate state insurance commissioners and state attorneys general regarding the federal law, violations of the law, and enforcement needs.
Engaging in discussions with employers and human resources personnel to help them understand mental health parity rules and ensure that they do not purchase plans that fail to comply with the law.
Coyle emphasized another area in which health plans may be engaging in practices that are deceptive to purchasers who expect to use mental health services—“network adequacy.” Coyle pointed out that plans advertise provider networks that appear to afford options for access to care but in fact frequently include physicians who are no longer accepting patients, have moved from the area, or in some cases are deceased (see article below).
Muszynski, in comments to Psychiatric News, expressed frustration with the failure of regulators to force health plans to comply with the law. “Obviously, the ACA and the creation of the plans and extension of parity hold promise for access to mental health and substance abuse services,” he said. “But consistency with the law has been flawed and falls short of the promise. The article by Goldman and colleagues mirrors our anecdotal experience, which is considerable and suggests stronger oversight is in order.”
Coyle and Muszynski noted that APA has been pursuing a multifaceted strategy with regard to monitoring health plans for compliance with parity (see box at left).
The researchers reporting in Psychiatric Services reviewed summaries of benefits documents available to potential enrollees for all insurance products offered in two state-run exchanges during the first open enrollment period, from October 2013 through March 2014. The exchanges were selected for variety in health insurance issuers and products and ease of access to summary documents for all insurance products.
For each product, they assessed whether the quantitative treatment limitations described for behavioral health benefits appeared more restrictive than those described for the medical-surgical benefits in each of four classifications of benefits: outpatient in network, outpatient out of network, inpatient in network, and inpatient out of network.
They found that for most products offered on both exchanges, quantitative treatment limitations and prior-authorization requirements described for behavioral health benefits appeared equivalent to or even more generous than those described for medical-surgical benefits.
However, they noted discrepancies with federal parity with some plans in at least three areas: financial requirements (that is, copayment, coinsurance, and deductible) imposed on behavioral health benefits versus medical-surgical benefits; application of financial requirements to mental health versus substance abuse benefits; and financial requirements for outpatient in-network behavioral health visits.
In the last area, they found that 11 percent of products impermissibly matched the financial requirements for outpatient in-network behavioral health visits to financial requirements for outpatient surgical visits rather than to a reference category of general medical office visits.
“Coverage for surgical visits is often more restrictive than for medical visits, so exchange plans that peg their behavioral health benefits to surgical visits may appear less generous to potential enrollees than competitor plans that peg their behavioral health benefits to medical visits. This discrepancy with the parity law may therefore have the effect of encouraging individuals with behavioral health treatment needs to choose a different exchange plan.”
With regard to financial requirements for mental health as opposed to substance abuse, they found that in one product, for example, outpatient in-network primary care and mental health visits were combined for the purpose of exempting the first three visits of either kind from the plan deductible. In comparison, outpatient in-network substance abuse treatment remained subject to the plan deductible from the first visit.
And with regard to financial requirements for mental health care as opposed to medical-surgical, they found that in one product, inpatient medical-surgical stays at out-of-network providers require a copayment, whereas inpatient behavioral health stays at out-of-network providers require coinsurance, which typically results in a higher total out-of pocket payment than does a copayment.
Finally, summary documents specified prior authorization as a requirement for all outpatient behavioral health visits. In contrast, for these same products, prior authorization was either not specified at all as a requirement for outpatient medical-surgical benefits or specified as a requirement that would be selectively applied to certain services in the medical-surgical category.
Goldman said that some of the apparent inconsistencies with the parity law are related to the historical practice of separating the behavioral health benefit from the medical-surgical benefit in summaries of benefits available to consumers. This may cause an impression that behavioral health is being treated differently from other service areas.
In comments to Psychiatric News, Coyle agreed that the use of mental health carveouts—and the separation of mental health and medical-surgical benefits in the summaries available to potential purchasers—can only create confusion. “Parity is essentially a comparison, and it is confusing for consumers when they look at behavioral health on one side and a different summary for medical-surgical benefits on the other,” she said.
Looking beyond the exchanges surveyed in the Psychiatric Services report to employer-provided plans, Coyle said states are responsible for ensuring that plans meet parity, but it is the employers that purchase a plan for their employees that are responsible and liable for the inconsistencies with the law.
“There is no doubt that on the face of it, some companies are violating the parity law by requiring prior authorization for all mental health and substance abuse claims,” she said. ■
“A Tale of Two States: Do Consumers See Mental Health Insurance Parity When Shopping on State Exchanges?“ can be accessed here.
