Speed Up Parity Rules, Advocates Tell Officials

In mid-July, representatives of the Parity Implementation Coalition, which counts APA among its 12 member organizations, met with federal agency representatives to encourage the release of final regulations on the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act (MHPAEA). Also visiting Capitol Hill to champion the need for regulatory clarity on implementing and enforcing the law was David Wellstone, son of the late Sen. Paul Wellstone.

The main concern of both Wellstone and the coalition is that in the absence of final regulations governing the parity law, many insurers affected by the law are continuing to deny equitable coverage for the treatment of psychiatric conditions and substance use disorders. Wellstone told legislators he was particularly disheartened to hear from patients and providers that in some instances, obtaining access to intermediate levels of mental health care has become even more difficult than before passage of the law in 2008.

While the departments of Health and Human Services (HHS), Labor, and the Treasury released interim final regulations on the law in February 2010 (Psychiatric News, March 5, 2010), there is still no indication of when a final rule will be issued. The coalition noted that more than 5,000 comments were submitted in response to the interim regulations, which went into effect for the majority of health plans on January 1.

According to the Parity Implementation Coalition, regulatory guidance is needed in four key areas:

• 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.

Despite Sebelius's assertion in her letter to Tonko that the agencies "communicate regularly with state regulators, health plans, issuers, providers, and consumer organizations to ensure that they understand the statutory and regulatory requirements of MHPAEA," both Wellstone and coalition representatives were informed that subregulations on NQTLs and additional language on disclosures may be forthcoming, but final regulations should not be expected anytime soon.

Psychiatrists who have questions or concerns about the parity law should go to the Web site Mental Health Parity Watch at <www.mentalhealthparitywatch.org/Pages/mentalhealthparity.aspx>.