Federal Agency Declares It Is ‘Dead Set’ on Enforcing Parity

For psychiatrists and patients trying to get insurance companies and health plans to live up to their obligations under the Mental Health Parity and Addictions Equity Act, the Employee Benefit Security Administration (EBSA) may be the most important government agency you never heard of.

EBSA, which is part of the Department of Labor (DOL), is responsible for regulating 2.5 million employer-sponsored benefit plans providing health benefits to some 134 million people. It was EBSA, along with the Treasury Department and the Department of Health and Human Services, that recently proposed new rules to strengthen the 2008 Mental Health Parity and Addiction Equity Act (MHPAEA) by closing loopholes and adding greater clarity to the law’s requirement.

The proposed regulations were announced at an event at the White House on July 25 that brought together leaders of mental health and patient advocacy organizations. Among those invited to the event were Saul Levin, M.D., M.P.A., APA’s CEO and medical director, and Kristin Kroeger, chief of APA’s Policy, Programs, and Partnerships. Also invited were past APA president Steven Sharfstein, M.D., and Howard Goldman, M.D., Ph.D., director of the Maryland Mental Health Systems Improvement Collaborative and former editor of the APA journal Psychiatric Services.

“The idea behind parity is that if an insurer is going to impose a financial condition or a treatment limitation on a beneficiaries’ receipt of promised benefit, those requirements and limitations cannot be more restrictive for people with mental illness or substance use disorders than they are for people with general medical conditions,” said Tim Hauser, deputy assistant secretary for program operations at EBSA, in an interview with Psychiatric News. “People should not have to run further or jump higher to get promised mental health benefits than they do for general medical benefits. It can be hard enough for people struggling with mental health problems and their families without also having to deal with extra roadblocks put in their path by insurance companies and health plans.”

The reality, as too many patients and their psychiatrists have learned, hasn’t lived up to the vision. “What we have found in practice is that while there has been a lot of progress with regard to financial requirements—copayments and the like—that hasn’t been the case when it comes to ‘nonquantifiable’ treatment limitations,” Hauser said. “These include prior authorization policies, concurrent review requirements, fail-first policies, and other limitations that are not financial in nature. Fifteen years into the parity act there is still a lot of noncompliance and inequality. The law isn’t fulfilling its promise, and that’s what we are trying to address.”

Hauser outlined ways in which the proposed parity rules would make the law clearer and remove loopholes insurers and health plans have used to dodge the law’s requirements.

• Inclusion of a statement of purpose: Although this is not typical for regulatory announcements, the statement of purpose is designed, Hauser said, “to remind everyone what the point of this enterprise is—that insurance companies, when they are designing these limitations, need to ensure they are not more restrictive than those for general medical conditions.

• Clearer definitions of terms and concepts: For example, the proposed rules clarify the meaning of “restrictive” limitations on mental health and substance use disorder benefits. They also make clear that an insurer cannot cite a source or standard as justification for a more restrictive limitation if that source itself is biased or discriminatory against mental health or substance use disorder benefits.

• Mandating collection of data on outcomes: Insurers and health plans would be expected to continually collect data on outcomes related to treatment limitations. “For example, they need to be focused on whether the network is materially worse for mental health claimants than it is for medical/surgical claimants,” Hauser said. “If they are materially worse, we would consider that a violation under the proposed rules, and the insurer would need to fix it and put in place a plan to close those gaps.”

• Requiring a written analysis comparing limitations: Hauser said Congress approved a law two years ago saying DOL, the Department of Health and Human Services, and the Department of the Treasury can request a written analysis comparing mental health and substance use disorder treatment limitations and those for medical and surgical treatment. “Our proposed rule defines how that analysis should work, what information insurers need to be providing us, and makes clear what the consequences are for noncompliance.”

Interested parties, including APA members, are urged to respond with comments on the proposed regulations by October 17. They can do so at http://APAPsy.ch/co.

Especially helpful to the administration is input from psychiatrists on reliable metrics that might be used to compare treatment limitations and thereby create a “safe harbor” for insurers and health plans—metrics and outcomes that would readily demonstrate compliance without insurers having to be audited by the government.

“We want to know what a good metric is for doing this and what is a good outcome?” Hauser said. “We need metrics that rely on data that can’t be manipulated to give the appearance of compliance. If we can do this, it is potentially a good approach to getting health plans to where they should be.”

At least one mental health advocate said that the work of EBSA should be encouraging to patients and families as well as to psychiatrists and mental health professionals. Joe Feldman of Wilmette, Ill., a suburb outside of Chicago, had to file suit against an insurer in 2019 on behalf of his daughter who required residential treatment; he won the suit (Psychiatric News, “Medical-Necessity Letters Written By Psychiatrists Can Be Decisive”).

He serves as “advocate at-large” for The Kennedy Forum and was present at the July 25 event at the White House. “For parents seeking psychiatric care for their children, life can be challenging enough,” Feldman told Psychiatric News. “It’s really encouraging to know that government leaders are doing the hard work of holding insurers accountable for providing robust networks and approved claims. It should also be encouraging to our kids’ doctors that their decisions about care matter to insurers.”

Hauser added that EBSA operates a phone line with benefit advisors who receive complaints from patients and mental health professionals when insurers are not complying with parity requirements (1-866-444-3272). He cited the case of a San Francisco mother who had to finance more than $200,000 in mental health treatment for her daughter because the insurer refused to authorize residential treatment; EBSA was able to investigate the complaint and resolve it, recovering the mother’s expenses and getting approval for the treatment.

Hauser said the issue of noncompliance can be a life-and-death matter. “Some of the complaints we could not resolve were because the beneficiary died, sometimes by suicide,” he said. “The problem with access to treatment is a serious one. Fifteen years into the parity law, we should not be dealing with these issues. We are dead set on fixing it.” ■