Advocates who cheered the historic passage of the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 have shifted their focus to ensuring that federal agencies implement the measure in the full spirit of the legislation, noting that insurers and managed-care firms have been able to successfully thwart similar state laws.
The U.S. departments of Labor, Health and Human Services, and the Treasury are drafting the regulations for the new parity law, and more than 400 groups, governments and individuals provided input to the agencies during the public comment period which ended in May. By law, the federal government must issue its parity regulations by Oct. 3; the measure is slated to go into effect Jan. 1, 2010 whether the regulations are issued or not.
Newly sworn-in Sen. Al Franken (D-Minn.), who assumed the late Paul Wellstone's seat in the U.S. Senate, recently circulated a sign-on letter in Congress urging the heads of the three federal agencies to issue timely regulations for parity. The Senate letter has more than 25 co-signers, and advocates are working to circulate a similar letter in the U.S. House of Representatives.
The “Dear Colleague” letter was the first ever sent by Franken, whose interest in addiction and mental health issues predates his candidacy for the Senate, according to spokesperson Jess McIntosh. “Paul Wellstone was a dear friend of Al's, and when he became Senator this was one of the issues he wanted to see through,” said McIntosh.
“To avoid misinterpretation of the law and to ensure access to these critical services, it is imperative that you not only issue regulations according to clear Congressional intent but also address concerns submitted during the public comment period,” Sens. Franken, Edward Kennedy (D-Mass.), Jack Reed (D-R.I.), and Sheldon Whitehouse (D-R.I.) wrote to the secretaries of Labor, HHS, and Treasury on July 27.
The letter noted the importance of using regulations to clarify key questions around addiction and mental health scope of services, medical management, deductibles, and treatment limitations. “Without timely issuance of regulations that clarify Congressional intent, it is likely that health plans will implement the law according to their proposed version of regulations as set forth in their public comments,” the senators wrote. “Only with regulations can we ensure the end to discrimination against those with mental health and substance use disorders.”
Draft regulations are expected to begin circulating in early September, which advocates worry will be too late for all three agencies to sign off on final regulations by the October deadline. “We'd like to get the regulations with sufficient time to review them before they go into effect,” said McIntosh.
If regulators don't move quickly, “the law will go into effect without regulations, and it will end up in court,” predicted Holly Merbaum, manager of government relations for Capitol Decisions, a Washington, D.C. firm that lobbies on behalf of the addiction community.
In May, the Parity Implementation Coalition, which includes the American Society of Addiction Medicine, Betty Ford Center, Bradford Health Services, Faces and Voices of Recovery, Hazelden Foundation, Mental Health America, National Alliance on Mental Illness, National Council for Community Behavioral Healthcare, The Watershed Addiction Treatment Programs, and Wellstone Action, jointly submitted 44 pages of comments (PDF) to the Department of Labor,which is taking the lead on parity regulations.
The coalition said that a survey of its membership found that “medical management techniques in addition to treatment limitations and/or financial requirements have allowed plans to circumvent the improvements intended by existing state or federal parity laws,” and stressed, “The [federal parity] regulations must ensure that medical-management techniques are no more restrictive for [mental health and addiction] services as compared to medical/surgical services.”
The Wellstone law does not bar insurance plans from limiting addiction and mental health treatment services, the coalition noted, but the limits “must be no more restrictive than the predominant treatment limitations applied to substantially all medical/surgical benefits covered by the plan.”
“A plan that refuses to cover [an addiction or mental-health] service that has no analog in medical/surgical will violate this section of the Act as well as the requirement that there can be no 'separate treatment limitations that are applicable only with respect to mental health or substance use disorder benefits,'” the coalition wrote. “If a plan covers every level and type of medical/surgical care for substantially all medical/surgical benefits, but only provides for certain levels or types of care for [addictions and mental illness], the plan has violated the Act's 'no more restrictive' standard.”
Similarly, the coalition asserts, the Wellstone law does not allow the use of more stringent benefit rules about addiction and mental-health medications, out-of-network coverage, or the use of different medical-management criteria (e.g. managed care rules) than for medical/surgical conditions. “The purpose and context of the Act demonstrate that similar criteria that result in a reduction in access to services may violate the Act,” the coalition advised federal regulation drafters. “Interpreting the statute otherwise would misconstrue the intent of Congress.”
The Wellstone law's “no more restrictive” standard also applies to the types of providers covered by insurance plans, according to the coalition. Fee schedules, such as those for out-of-network services, also must meet this standard. “Moreover, permitting fee schedules to be so low that access is reduced is inconsistent with a broad reading of the statutory text and purpose of the Act,” the coalition stated.
Medicaid managed-care plans also must comply with the Wellstone law if they offer both medical/surgical and addiction/mental health benefits. The coalition called for regulators to require that plans provide beneficiaries with at least 60 days advance notice when benefits change, since people with addiction and mental-health conditions often have difficulty finding providers. Finally, the addiction and mental health organizations called for a Consumer Advocate Office to be established at the Department of Labor and the Department of Health and Human Services to assist consumers who have questions about their rights and benefits under the law.
Divergent Views from Insurers, Employers
Merbaum said that some insurance and employer groups have taken a troublesome tack in interpreting the Wellstone law in their submitted comments, particularly regarding the use of managed-care techniques to control benefits and costs and the extent to which addiction and mental-health benefits can be “separate but equal” compared to general medical coverage.
For example, the U.S. Chamber of Commerce and the American Benefits Council (ABC), which represents Fortune 500 companies, asked regulators to “confirm” that the law “does not preclude group health plans from employing medical necessity provisions, precertification requirements or other medical-management tools for mental-health or substance-use disorder benefits, and that such tools need not be the same as those used for medical and surgical benefits covered under the plan.”
“The Act explicitly imposes parity requirements with respect to treatment limitations and financial requirements, as well as out-of-network coverage. The Act does not, however, expressly extend parity requirements to medical-management techniques,” according to the comments submitted to the federal government by the Chamber and ABC. “Since there is no explicit parity requirement for medical management in the Act, none should be implied in regulatory guidance by the agencies.”
Groups like the Chamber and ABC also are seeking to retain the right to charge higher copays for addiction and mental-health care (using the arguement that such providers are “specialists”), as well as the ability to exclude (under some circumstances) coverage of certain conditions, treatments, providers, and treatment settings.