Mental Health Parity: The Business Realities
An opinion piece by
Edward R. Jones, PhD
Executive Vice President/Commercial Division
While the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) was signed into law on October 3, 2008, it was not until more than one year later that regulations were released. Most group health plans had to comply with the law as of January 1, 2010, but the Interim Final Rules (IFR can be found at http://edocket.access.gpo.gov/2010/pdf/2010-2167.pdf) were not released until January 29, 2010. As stated in the IFR, businesses had to make “good faith efforts to comply with a reasonable interpretation of the statutory MHPAEA requirements.” (p. 5419) Some of these “reasonable” interpretations are now in conflict with the IFR, and so plans have been extended a good faith compliance period in which enforcement action will not be taken. Plans now, however, face another round of compliance activities to implement the requirements of these regulations for plan years beginning on or after July 1, 2010.
This brief editorial is not intended to provide a comprehensive summary of the IFR nor an interpretation of any specific aspect of the regulations. One might wonder why an interpretation of the regulations would even be needed when the regulations are themselves intended to be an interpretation of the law. Unfortunately, the IFR clarifies some points within the law, but at the same time creates new ambiguities.
Two clarifications are worth noting. First, the IFR establishes a requirement for deductibles and out-of-pocket (OOP) maximums to be shared or combined between medical/surgical and mental health and substance abuse (MHSA) benefits. Group health plans which in good faith implemented separately accumulating deductibles and OOP maximums for January 1, 2010 must now redesign their benefits. In addition, they must establish a process for claims accumulator files to be exchanged between the companies managing medical and MHSA benefits. In some instances the medical and behavioral health companies are different, yet an exchange of data is generally required even when the health plan owns a managed behavioral health organization (MBHO). The Departments issuing the IFR studied this issue and calculated that each accumulator interface would cost $35,000 to implement (p. 5415), which they determined was not an excessive burden for MBHOs and plan sponsors.
Another clarification relates to the use of employee assistance programs (EAP) in connection with the management of MHSA benefits. Many employers provide counseling sessions with a behavioral health clinician at no cost to the employee under the EAP benefit. Employers determine the EAP session limit and, as the limit increases (e.g., to 5 or 8 sessions), an increasing percentage of people get their needs met within these sessions and do not go on to access their MHSA benefit. While this is widely recognized as one of the value propositions for providing EAP benefits, the IFR rejects one specific EAP model known as the gatekeeper. This model requires exhaustion of the EAP benefit before individuals can access their MHSA benefits, and this would be a violation of the parity law if no such requirement exists for medical/surgical benefits. The EAP gatekeeper model is not common today, but it is about to become a historical footnote.
The Issue of “Non-Quantitative Treatment Limitations”
Many issues are addressed in the IFR, but few are more controversial than “non-quantitative treatment limitations” such as medical management. The Act permits the use of medical management techniques and does not require that the techniques used for medical/surgical and MHSA benefits exist on a par in any sense. However, the IFR extends the law into new territory by requiring that “processes, strategies, evidentiary standards, or other factors” used to manage MHSA benefits “must be comparable to, and applied no more stringently than, the processes, strategies, evidentiary standards, or other factors used in applying the limitation with respect to medical/surgical benefits in the classification” (p. 5416). The IFR applies only to six classifications of benefits, including inpatient (both in and out of network), outpatient (both in and out of network), emergency care and prescription drugs.
While the requirement that the management techniques used for MHSA be “no more stringently” applied than for medical conditions seems rather ambiguous, it appears that this was deliberate on the part of the regulators. The very next sentence in the IFR states: “However, these requirements allow variations to the extent that recognized clinically appropriate standards of care may permit a difference.” It seems that the regulators are focused on the parity of clinical process but not the results. That is to say, while there need to be comparable processes and evidentiary standards, it is not expected that the results will be the same when the non-quantitative treatment limitations are implemented for medical and MHSA benefits. In other words, while the goal is necessary and appropriate care for both types of benefits, the number of visits or days of coverage may be quite different when clinically appropriate standards are applied.
It remains to be seen how the parity of medical management techniques will play out in reality, but it may be helpful to think about the distinction between general management processes and clinical decision making at the patient level. The IFR requires an examination of general management processes for the treatment of medical and MHSA conditions, with the expectation that the general management processes implemented (e.g., concurrent review, retrospective review) will be comparable. However, when it comes to the management of individuals with highly acute MHSA diagnoses or treatment that appears to be inconsistent with clinical guidelines, the IFR allows clinicians managing that care to take reasonable steps to ensure that all services are medically necessary and clinically appropriate.
ValueOptions®, the nation's largest independent behavioral health care company, provides services to more than 22 million individuals through a variety of contracts with state and county agencies, as well as with health plans and employers. ValueOptions® is a managed care company that specializes in management for all behavioral health issues, and mental health and chemical dependency diagnoses.
Edward R. Jones, PhD is Executive Vice President/Commercial Division of ValueOptions®. If you are interested in contacting Dr. Jones please contact Deborah Love at firstname.lastname@example.org or call 480.305.2100.