The American Health Lawyers Association (AHLA)’s Behavioral Health Task Force (on which I serve as Vice Chair – Membership) wrote a recent email update entitled “White House Parity Task Force Provides Guidance on Mental Health and Substance Use Disorder Parity Law.
On October 27, 2016, The White House Mental Health and Substance Use Disorder Parity Task Force (Task Force) released a series of actions and recommendations for improving implementation of the federal parity law.
The recommendations are based on feedback the Task Force received through a series of listening sessions held from March through October with consumers, providers, employers, health plans, and state regulators and from more than 1,100 public comments from individuals with mental health and substance use disorders, families, and advocates.
The report (Final Report) summarizes several overarching themes from the listening sessions and written comments with regard to compliance with the Mental Health Parity and Addiction Equity Act (MHPAEA) and the Affordable Care Act (ACA), addressing parity awareness and education, quantitative treatment limitations (QTLs), non-quantitative treatment limitations (NQTLs), appeals and disclosure, and enforcement.
The report recognized the complexities of MHPAEA analyses. The report focused on four common forms of NQTLs: prior authorization, utilization review, “fail first” or step therapy, and reimbursement rates. With regard to how parity compliance should be disclosed to consumers, the report recognized that information should be understandable to consumers while not overly burdensome on payers. There was also recognition that documents to be disclosed can be immense.
Interestingly, the regulators acknowledged for the first time that that health plan disclosure requirements of medical and surgical benefits only exist for Employee Retirement Income Security Act (ERISA) plans. The Task Force recommended that Congress extend this requirement to non-ERISA plans.
Short term actions set forth in the report include:
- The release of a Compliance Assistance Materials Index, from the Departments of Labor (DOL), Health and Human Services (HHS), and the Treasury to place all parity-related FAQs and guidance in one place.
- $9.3 million in grants to California, Colorado, Washington, DC, Hawaii, Illinois Indiana, Massachusetts, Maryland, Michigan, Minnesota, Mississippi, North Carolina, Nebraska, New Hampshire, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, and Utah to support parity implementation and oversight. California, New York, Massachusetts, Oregon, and Rhode Island were cited as models of promising enforcement efforts.
- The release of a Consumer Guide to Disclosure Rights, from the Substance Abuse and Mental Health Services Administration (SAMHSA) and the DOL, describing the various federal disclosure laws.
- The announcement of two “State Policy Academies on Parity Implementation for State Officials” hosted by SAMHSA, focusing on parity compliance in the commercial market and parity in Medicaid and the Children’s Health Insurance Program (CHIP).
- The release of annual data from the DOL on closed federal parity investigations.
- The addition of MHPAEA compliance to the Centers for Medicare & Medicaid Services’ review of plans subject to Essential Health Benefits (EHB) requirements under the ACA.
Longer-term recommendations include:
- Increasing the federal agencies’ capacity to audit health plans for parity compliance.
- Developing additional examples of parity compliance best practices and “Warning Signs” documents.
- Legislative changes to allow the DOL to assess civil monetary penalties for parity violations.
- Legislative changes to clarify that health plan disclosure requirements include medical and surgical benefits.
- Legislative changes to eliminate the Health Insurance Portability and Accountability Act opt-out process for self-funded non-federal governmental plans.
- Providing technical assistance to state Medicaid and CHIP agencies as they implement parity in their programs.
- Reviewing the mental health and substance use disorder benefits provided by Medicare Advantage plans and strengthening parity in Medicare Part A benefits.
- Expanding access to mental health and substance use disorder services in TRICARE.
The DOL, HHS, and the Treasury also issued ACA FAQ Part 34. Specifically the FAQs:
- Seek comments on the use of model forms that could be used by consumers and states to request and review information on NQTLs. Comments are due by January 3, 2017 to the Task Force.
- Announce a new portal that consumers can use to seek help in obtaining requested documents or help in reviewing documents related to mental health parity.
- Clarify prior FAQs regarding the “book of business” test for whether a plan passes the “substantially all” and “predominant” level testing for financial requirements and quantitative treatment limitations.
- Address the use of prior authorization for mental health treatment.
- Provide several clarifications regarding Medication Assisted Treatment (MAT) for opioid use disorder regarding the use of prior authorization for safety reasons that are more stringent than those for prescriptions to treat medical surgical conditions with similar safety risks, and also requiring prior authorization for each refill (e.g., every 30 days).
- Address plans and policies that exclude court-ordered treatment for substance use, noting that it is not permissible to exclude if the plan does not exclude court-ordered treatment for medical/surgical conditions.
Many stakeholders issued statements upon the release of the report and other materials praising the goal of achieving both the spirit and the letter of the parity law. Although release of the report did fine-tune some aspects of MHPAEA interpretation and compliance, much work remains for the incoming Administration.
*We would like to thank Bradley E. Lerner (Beacon Health Options Inc., Norfolk, VA) and Jennifer Lohse (Hazelden Betty Ford Foundation, Center City, MN) of the AHLA’s Behavioral Health Task Force for authoring this email alert. We also would like to thank Suzanne J. Scrutton (Vorys Sater Seymour and Pease LLP, Columbus, OH), Chair of the AHLA’s Behavioral Health Task Force.