Payers criticize mental health parity proposed rules

Photo: Basak Gurbuz Derman/Getty Images

Over the past several days health insurers have criticized the Biden Administration's proposed regulatory updates to mental health parity requirements, with some decrying what they deem as burdensome compliance requirements.

The administration's updates to the Mental Health Parity and Addiction Equity Act (MHPAEA), issued through the departments of Labor, Treasury and Health and Human Services, revamp parity laws in an effort to hold health plans accountable for adhering to the requirements. Under the proposed framework, payers would need to evaluate both their prior authorization protocols and out-of-network reimbursement, with the idea of helping members duck avoidable costs.

AHIP, in a letter sent to the departments, said the proposed regulations have "significant legal, policy, and operational flaws," and should not be finalized. The group added the proposed rules won't achieve their stated goal: increasing access to mental healthcare or substance use disorder treatment.

"The fundamental challenge before us is a significant increase in demand for MH/SUD treatment that has far outpaced the number of available licensed providers to adequately meet that demand," AHIP wrote. "We are concerned these proposed rules focus on documentation and demonstration of compliance with arbitrary new standards that will do nothing to increase the number of available MH/SUD providers or facilitate access to quality MH/SUD care."

The group said that if the rules are finalized it would lead to unintended consequences, including increased healthcare costs, shifts away from value-based care for MH/SUD treatment, and proliferation of unproven and unsafe MH/SUD treatment.

While recognizing that it's necessary to demonstrate parity, AHIP warned that the proposed updates are inefficient and vague, and prioritize the analysis of healthcare coverage over access to care itself.

Additionally, AHIP outlined what it regards as problematic legal issues, saying the proposed rules exceed any reasonable interpretation of the MHPAEA, and, from a Constitutional standpoint, raise concerns under the Administrative Procedure Act and Paperwork Reduction Act. 

"Essential components of the proposed rules are vague or entirely undefined, while others conflict with state laws, and many of the new requirements create compliance tests for health insurance providers that cannot be realistically passed," the group wrote.

WHAT'S THE IMPACT? OTHER REACTIONS

The Blue Cross Blue Shield Association was also critical, echoing AHIP's view that the proposed changes could threaten access.

BCBSA maintained that the new requirements could increase care that is not clinically recommended, and ultimately lead to poorer health outcomes. The rule could also limit a patient's ability to choose an approach to care that best suits their needs, and result in fewer patients seeking help, the organization said.

"We share the administration's goal of expanding access to affordable mental health support, but we're concerned it could become harder – not easier – for patients to get the care they need," said David Merritt, BCBSA's senior vice president of policy and advocacy, in a statement. "This rule could push us in the wrong direction by forcing health plans to remove important protections that ensure patients are receiving safe, medically necessary, effective care. We'll continue to work with our partners, the administration and Congress to improve both access and quality for Americans."

BCBSA recommended expanding quality assurance and oversight for nonclinical personnel, expanding access to telemental health services and allowing behavioral health providers to practice across state lines, and promoting diversity in the long-term workforce pipeline.

The Alliance of Community Health Plans (ACHP) also submitted a comment letter to the departments in which it said the proposed rule does not provide clarity for provisions that impact parity compliance. Rather, the group said, it creates an entirely new regulatory schema filled with ambiguities and enhanced documentation requirements that impede health plan efforts to be compliant and ensure parity.

"We strongly support proposals to reinforce the intended objective of MHPAEA to guarantee that health plans provide access to mental health and substance use disorder (SUD) benefits without imposing greater restrictions than those applied to medical/surgical benefits," ACHP wrote.

Also submitting comments to the departments was the ERISA Industry Committee (ERIC), which said the rules, if finalized, would be overly burdensome to employer-sponsored health benefit plans; would be confusing, costly and impossible to comply with; and would subject millions of employees and their families to higher healthcare costs and changes to their benefit designs.

"ERIC member companies choose to voluntarily offer comprehensive mental health and substance use disorder benefits to attract and retain talented workers, and to keep employees healthy and productive," said James Gelfand, president and CEO of ERIC.  "At the same time, our members believe that MHPAEA compliance is essential. ERIC members have been leaders in offering affordable, access to high quality benefits for many years, and continue to meet the needs of their workforce through innovative benefit designs, including the use of telebehavioral health, which proved critical during COVID and continues to meet an important need today.

"Unfortunately, the proposed regulations are so unworkable, it is unclear how compliance could ever be achieved while continuing to offer these important benefits," he said. "The departments' proposals are written in a way that sets plans up to fail. We call upon the departments to work with ERIC and all stakeholders through a more engaging policy development process, where areas of need can be identified and prioritized, such as mental health and substance use disorder workforce shortage issues, and all parties can propose effective solutions."

THE LARGER TREND

Enacted in 2008, the Mental Health Parity and Addiction Equity Act aims to make sure people seeking mental health and substance use disorder care do not face greater barriers to treatment than those faced by people seeking treatment for medical and surgical conditions. 

Generally, the act prohibits private health insurance companies from imposing co-payments, prior authorization and other requirements on mental health or substance use disorder benefits that are more restrictive than those imposed on medical and surgical benefits, according to Stateline.

Despite the federal law, many insurers continue to charge higher copayments for mental health care, limit the frequency of mental health treatment, or impose more restrictive prior authorization policies, according to the Kennedy Forum, a nonprofit that advocates for equal mental health coverage. A joint report provided this year to Congress by the Department of Labor, the Department of Health and Human Services and the Department of the Treasury validated those assertions.

The Biden Administration's proposed rule would strengthen parity under the law by requiring that insurers show how their coverage rules affect patients and to provide data on other restrictions such as prior authorization.

The new rule would close a loophole that has allowed more than 200 state and local government health insurance plans to opt out of the law. 

While 50% of adults with a behavioral condition do not receive treatment, a robust ecosystem inclusive of early identification, along with personalized care pathways with patient-to-provider matching, can result in improved outcomes, according to Evernorth research published in June.

The demand for behavioral health providers continues to grow. Evernorth's analysis finds the prevalence of behavioral health conditions grew by 4% from 2021 to 2022. The analysis, which looks at anonymized and aggregated claims data of six million people from 2021 to 2022, finds that increases in prevalence vary by condition, with the largest occurring within attention-deficit hyperactive disorder (ADHD), personality disorder and autism spectrum disorder.

The data also shows that the 22% of patients with a diagnosed behavioral condition drive 41% of total healthcare spend for the entire population.

A KFF analysis from January showed the mental health crisis is disproportionately straining Medicaid, in part because behavioral health services cost the federal program more than for other payers.

In addition, workforce challenges contribute to barriers in access to care. Nearly half the U.S. population – 47%, or 158 million people – live in a mental health workforce-shortage area. Workforce challenges are widespread, and go beyond Medicaid, but shortages may be exacerbated in Medicaid, according to the analysis.
 

Twitter: @JELagasse
Email the writer: Jeff.Lagasse@himssmedia.com