APA Urges Wide Interpretation of Mental Health Parity Law

APA is seeking the broadest possible interpretation of the new Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 and is urging federal regulatory agencies to ensure that employers and health plans abide by the spirit—as well as the letter—of the new law.

The parity measure, passed last October by Congress as part of the massive financial-industry rescue package, requires health plans that offer mental health coverage to have the same benefits, copayments, and treatment limits as for other types of health care. The law, which will give 113 million people the right to nondiscriminatory mental health coverage, goes into effect one year after enactment or on January 1, 2010, for most calendar-year plans. (Employers with 50 or fewer employees are exempted from the law.)

In comments sent to three federal agencies seeking input as they develop rules for implementing the new parity law, APA insisted that health plans and employers should be prohibited from using certain indirect methods of restricting access to care—such as differential reimbursement schedules for different providers or separate-but-equal deductibles for mental health care—while still nominally complying with the law (see Don't Restrict Psychiatrists' Use of CPT Codes).

“We want a broad interpretation of the law,” said Irvin“ Sam” Muszynski, J.D., director of APA's Office of Healthcare Systems and Financing (OHSF). “We have worked with other groups to get a background legal analysis that supports our position that parity is not just about equality of coverage, but equality of access to care and equality in how providers are treated relative to other providers.”

APA's comments were sent in the form of a 15-page letter dated May 28 from APA Medical Director James H. Scully Jr., M.D., to Health and Human Services Secretary Kathleen Sibelius, Labor Secretary Hilda Solis, and Treasury Secretary Timothy Geithner.

The comments were the result of collaboration between the OHSF and APA's Department of Government Relations. Advice and recommendations were sought from the Board, the Assembly, and relevant policy councils to ensure the broadest possible input, said Nicholas Meyers, director of APA's Department of Government Relations.

An interim rule, taking into consideration comments from all interested parties, is expected to be issued at the end of this month or the beginning of July.

Comments will be solicited again on the interim rule, and the final rule is expected to be issued in October.

The passage of the parity law was a landmark achievement, but much of how the law will impact individuals seeking treatment for mental illness including substance abuse depends on how rules implementing the law are written. A narrow interpretation of the law may allow health plans and employers leeway to comply nominally with the law while subtly restricting access.

“We think the agencies should take a comprehensive and inclusive view of what is covered by parity, rather than a narrow interpretation,” Meyers told Psychiatric News. “So when there is a question about whether something should or should not be subject to the law, we favor the broad interpretation because we think that was the congressional intent.”

As one example, APA is arguing against the use of“ separate-but-equal” deductibles. Such a tactic might, under a narrow interpretation of the law, be construed to be in compliance with the law since there would be no differential between the mental health deductible and the one for medical-surgical services; clearly, however, a separate, additional deductible could work to dissuade individuals from accessing mental health services they may need.

“With respect to cost sharing, APA and other mental health groups have argued that the notion of having a separate-but-equal deductible for mental health, even if it is equal to the med-surg deductible, is unacceptable,” Meyers said. “There should be a single deductible for health care services. The intent of the law is clearly to integrate treatment for mental illness including substance abuse with other medical-surgical services and to end the distinction in terms of cost sharing and treatment limits that currently exist.”

A host of similar issues will determine the extent to which the parity law actually works to make psychiatric treatment more accessible or ensures only a contractual similarity between benefits while still denying true equality of access.

Meyers said that APA is also urging the federal agencies to look for guidance on these issues to several programs with substantial experience with parity. These include the Federal Employees Health Benefits Program and state parity programs in Vermont and Maryland.

APA's comments address issues such as financial and treatment limitations that health plans might employ, applicability of the law to smaller employers and to employee assistance programs (EAPs), Medicaid managed care, state preemptions, medical necessity and denials, out-of-network treatment, and cost exemptions for employers who experience a significant increase in costs.

With regard to EAPs, for instance, APA is urging the federal agencies not to allow plans to require individuals to seek out an EAP prior to seeking care from a mental health specialist.

APA's comments also address the use of prior authorization as a means of restricting access to care. “While many insurers use prior authorization as a legitimate benefit-management tool, it can also be used as a roadblock for patients seeking certain treatment,” APA's letter states. “It increases the amount of time and effort required by both the physician and the patient to access the appropriate treatment and can be used solely to discourage use of these services. When benefit-management protocols are used in this manner, they become, in effect, treatment limitations, and APA would object to the use of prior authorization to access mental health care or substance use disorder treatment where there is no such similar requirement on the medical and surgical benefit.”

Said Meyers, “We think that benefits for psychiatric services should not be distinguishable from the benefits for other medical services with regard to cost sharing, treatment limits, and utilization review. We think that plans should not review care for mental health and substance abuse services in a way that is fundamentally different from their review of medical-surgical services.”

Finally, explicit rule making around the new parity law will be crucial so that state insurance commissioners will clearly know whether their state insurance laws are in compliance and that the federal law preempts state laws that fall below the statutory standard.

“We have said that it is clear to us that the statute views the parity law as a floor, not a ceiling,” Meyers told Psychiatric News. “It is very important for the federal departments to reach out to the state insurance commissioners to provide a clear understanding of where state laws will be retained and where the parity law takes precedence.”

Muszynski echoed that comment. “The federal agencies need to give people at the state level some certainty of compliance. We are hopeful the rule will provide enough detail to address our issues and to give plans sufficient information so that they can be certain they have complied with the law.”

APA's comments are posted at<www.psych.org/dgr/finalparitycomments>.▪