Common Parity Compliance Problems
Based on our members' collective experiences and a series of field hearings our Coalition hosted with former Congressmen Patrick Kennedy and Jim Ramstad, the Parity Implementation Coalition has identified common parity compliance problems and made recommendations to address these issues.
Common Parity Compliance Problems
Disclosure: There is a lack of disclosure by plans of their medical management criteria and information on how they apply medical management techniques to medical/surgical benefits as compared to mental health/substance use disorder (MH/SUD) benefits. To date, few plans provide criteria beyond what is available on their website and no plans have disclosed any details of how they apply non-quantitative treatment limits (NQTLS) to medical versus behavioral treatment services.
Network Adequacy: Plans generally have fewer providers in their MH/SUD networks than they do in their medical/surgical networks due to a number of factors, and consequently, a higher percentage of MH/SUD patients are treated by out-of-network providers as compared to medical/surgical patients.One of the factors that can be attributed to a lack of network adequacy is that physicians and other providers are generally paid lower reimbursement rates than medical/surgical providers, despite the fact that MHPAEA requires parity regarding the same. MH/SUD facilities are also generally reimbursed at lower rates. A study of a national reimbursementfee schedule on what were the average allowed costspaid to in-network, outpatient medical/surgical providers compared to in-network, outpatient behavioral health providers documents this discrepancy.
Facility-type/Level of care restrictions:Plans generally impose more restrictive limitations and exclusions on facility-types and clinically recognized levels of care for MH/SUD benefits than are imposed on medical/surgical benefits (Most notably, non-hospital based residential treatment for SUDs).
Lack of Parity in Pre-authorization: Plans generally have more stringent medical management techniques (i.e., pre-authorization and concurrent review requirements, medical necessity reviews, etc.) that are applied to MH/SUD services than to medical/surgical services.
Lack of Parity in Medicaid: Medicaid is the largest insurer for MH/SUDs and the Medicaid Expansion program is the largest part of the ACA for insuring new populations; however, at this time, there is no final guidance on what parity requirements apply to these plans. (A proposed rule was released in April 2015.)
Examples of problems listed above
Disclosure: Plans continue to respond to disclosure requests for behavioral health criteria and its application with a referral to their website; with generic statements lacking specificity; asserting the “proprietary” nature of the criteria used; or not responding at all. Plans continue to not respond to disclosure requests for medical/surgical criteria with a referral to their website or no response at all. Plans are not providing information at all with respect to how criteria are applied. It is impossible to enforce the parity law without being able to compare the application of NQTLs.
Network Adequacy: Plan cost allowances are generally less for outpatient behavioral health treatment services than for outpatient medical treatment services, making network participation unviable. Many plans have higher out-of-network usage for behavioral health treatment services leading to reduced access and higher out of pocket costs for consumers.
Facility-type/Level of care restrictions: Plans continue to exclude non-hospital based substance use disorder facilities from benefit coverage, while covering skilled nursing facilities and rehabilitation facilities under the medical benefit. Plans also continue to exclude clinically recognized levels of care such as partial hospitalization and residential treatment under the behavioral health benefit, while covering comparable levels of skilled nursing care, and inpatient and outpatient rehabilitative care under the medical/surgical benefit.
Pre-authorization requirements: Plans continue to impose more onerous pre-authorization requirements on MH/SUD physicians and other providers than on medical surgical providers. Some plans are requiring that their medical directors conduct SUD medical necessity reviews, while care managers continue to conduct reviews on the medical/surgical side. One provider stated that he regularly spends 30 to 50 minutes on the phone with insurers to obtain authorization for psychiatric hospitalization.He added, “When I walk down the hall and ask the staff in the main ER about their experiences for authorizations to treat other people in medical crisis, they invariably say that, at most, they are on the phone for two minutes and only need to provide name, insurance number and reason for hospitalization.They do not get the third degree.” This typifies the experience of many behavioral health provider utilization reviewers.
Medicaid: In the absence of final rules, plans continue to limit coverage for Medicaid enrollees.Just this week, there was a request for help from a mother whose daughter is enrolled in a Medicaid plan.The daughter, who currently weighs 85 pounds, has struggled with anorexia for years; all of her doctors have written to the insurer saying she requires residential treatment but the plan has denied the treatment, saying it is not a “covered benefit.”
External review/appeal process: Current guidance significantly limits the external review process to plan determinations involving medical judgment and to rescissions. “Determinations involving medical judgment” do not include many administrative benefit coverage denials that may violate and undermine the parity law, such as the proscribed use of preauthorization for outpatient psychotherapy or blanket exclusions of medically necessary care (that violate the parity statute) for covered conditions or blanket experimental/investigational exclusions of services for covered conditions based on internal Third Party Administrator (TPA) standards that violate plan language. Current guidance also permits self-insured plans to choose the IROs with which they contract, inevitably reducing the opportunity for fair and impartial review. No third party oversight exists of IROs in the self-funded (ERISA) context, who routinely fail to forward TPA-supplied documents for review by claimants prior to adjudicating appeals, fail to directly notice claimants (rather than contracted TPAs) of their determinations, even in urgent cases, and fail to publicly disclose their medical necessity criteria prior to adjudicating external appeals.
Recommendations to Improve Parity Implementation and Enforcement
Disclosure: DOL and HHS regulatory guidance requiring plans to fully and completely disclose their medical management criteria and an explanation and analysis as to how these criteria are applied to medical/surgical benefits as compared to MH/SUD benefits with detailed examples of what is compliant and what is not. Prior guidance and enforcement actions have not sufficiently addressed this problem and there is still a lack of disclosure that prevents patients from ensuring parity among benefits.
Network Adequacy: DOL and HHS regulatory guidance requiring plans to demonstrate whether there are differences between in- and out-of-network utilizationpatterns, as well as denial rates for medical/surgical versus MH/SUD providers.Further, DOL and HHS guidance would include specific examples that demonstrate what is compliant and what is not compliant when comparing reimbursement rates for MH/SUD outpatient providers versus medical/surgical outpatient providers.
Facility-type/Level of care restrictions: DOL and HHS regulatory guidance clarifying that facility-types and clinically recognized levels of care must be comparable under medical/surgical benefits and MH/SUD benefits consistent with the Final Rule, including examples of what is compliant and what is not.
Pre-authorization requirements: A number of lawsuits have already been filed demonstrating the harmful effects when pre-authorization requirements are more restrictive for behavioral health treatment services than for medical treatment services (see examples above).DOL and HHS guidance clarifying the appropriate and unlawful use of pre-authorization requirements would be helpful on MH/SUD and medical benefits.
Medicaid: CMS should issue a Medicaid parity final rule by January 1, 2016.
Best Practices: DOL and HHS would issue a report summarizing enforcement actions and investigations taken over the last three (3) years outlining what are best practices and what are not. The identities of the plans involved will not be disclosed.
GAO Report: A Government Accountability Office report examining existing DOL and HHS external review/appeal processes as well as the new external review/appeal regulations under the Affordable Care Act including a mechanism, or lack thereof, for external reviews of administrative denials that are in violation of the parity law.
Opinion Process: DOL and HHS establishment of an opinion process similar to the OIG Advisory Opinion process with respect to fraud and abuse that allows plans, future and current plan participants, and providers to seek meaningful advice on MHPAEA compliance.