Disclosure of medical criteria. In the absence of a requirement that health plans disclose their criteria for making benefit determinations for medical and surgical treatment, the coalition and others contend that it is impossible for providers and plan participants to determine whether a plan is applying the same criteria to mental health care as afforded under the law.

Although HHS Secretary Kathleen Sebelius noted in a recent letter to concerned congressional leaders that the agencies updated their FAQs on the parity law in December 2010 to discuss the issue of disclosure, Parity Implementation Coalition Co-chair Carol McDaid said this form of subregulatory guidance is nonbinding, awareness of its availability remains limited, and plans continue to deny disclosure requests.

Scope of services. While the preamble to the interim final regulations on the parity law states that regulators have not addressed the issue of a plan's scope of services, named in the regulations are six specific areas in which plans must offer benefits. The coalition said this much-debated ambiguity has led plans to claim compliance with the law while offering only limited levels of mental health service compared with more complete treatment levels for general medical and surgical care.

"We continue to believe that without clear guidance on this issue, we will continue to see plans deleting all intermediate levels of behavioral health care, as well as other essential treatment and diagnostic services," wrote Rep. Paul Tonko (D-N.Y.) and 39 other representatives in a May 18 letter to agency secretaries. "For instance, plans are excluding residential treatment for substance use and eating disorders and applying preauthorization requirements to mental health/addiction benefits that are not applied to medical benefits covered under the plan."

Nonquantitative treatment limitations (NQTLs). According to the coalition, both the statute and the interim final regulations define any treatment limitations imposed by health plans as including both quantitative and nonquantitative limitations. NQTLs impose limits related to concepts such as "fail-first" policies; provider eligibility standards for network participation; plan methods for determining usual, customary, and reasonable charges; and medical management standards that limit or exclude benefits based on medical necessity or whether a treatment is experimental or investigative.

In a May 12 letter to agency secretaries, Sen. Al Franken (D-Minn.) and 21 senatorial co-signers voiced concern that a lack of additional guidance on the enforcement of NQTLs will leave patients and providers unclear as to what mental health services are covered by their plan. The legislators urged the agencies to provide guidance on NQTLs with "specific examples and the timetable for enforcement."

Medicaid managed care. The Parity Implementation Coalition also noted that while the Centers for Medicare and Medicaid Services issued guidance in 2009 mandating that all Medicaid managed care plans with behavioral health benefits comply with the parity law, the agency has yet to provide more detailed regulations governing these plans.