On November 21, 2013, five years after the passage of the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA), the federal Departments of the Treasury, Labor and Health and Human Resources issued the final rule governing its implementation. Due to the fact that most health insurance plan years take effect on January 1st of a given year, this final rule will become broadly effective as of January 1, 2015. The final rule makes clear that the states will have the primary role in the enforcement of MHPAEA with the federal Department of Health and Human Service through its Centers for Medicare and Medicaid Services (CMS) having final authority over insurers in non-compliant states. This time line gives interested stakeholder groups, such as the New York State Psychiatric Association and other professional organizations along with other organizations which advocate on behalf of persons with mental illness, 1 year to assure that a division devoted to Parity implementation is created within the Department of Financial Services (DFS), the successor agency which incorporates the charge of the previous Department of Insurance.
Only through the establishment of a dedicated bureau within the DFS will interested parties be assured that expertise is developed within the agency regarding the interpretation of this complex law and its regulations. The 13-page law and its accompanying final regulation of over 200 pages do not lend themselves to facile interpretation by persons who have not taken the necessary time to digest its nuances and complexities. For example, the regulations require that mental health/ addiction benefits offered by a plan which includes such benefits be no more restrictive in relation to the services offered on the dimensions of quantitative (QTL) and non-quantitative (NQTL) treatment limits than they are for the medical and surgical benefits offered. The 6 categories within which comparability of benefits are required include inpatient and outpatient services, both in and out of network if out of network benefits are offered for medical and surgical services, as well as for pharmacy benefits and emergency care.
The objective of having a bureau established within DFS can best be realized by gaining the support of the Governor and the Superintendent of DFS. Concerted action by a broad coalition of stakeholders will be required as was created in the effort to gain the passage of Timothy’s Law, the New York mental health parity law, during the Pataki administration. As has been discussed in a previous NYSPA Report in Mental Health News (Summer, 2011, Vol13 # 3, p. 14), the nexus of the mandate in Timothy’s Law and the parity requirements of MHPAEA, when mental health and substance abuse services are covered, create particularly powerful possibilities in NYS for those advocating on behalf of those with mental illness and will provide the fodder for consideration of plan violations to be considered in NYS by DFS. (It should be noted that the Final MHPAEA regulations do not apply to Medicaid Managed care plans as well as other specified and other federally sponsored health insurance plans which were addressed in a CMS Dear State Health Official and State Medicaid Director letter dated January 16, 2013.)
Given the mixed record of MPHAEA compliance by commercial insurers, a devoted bureau is self-evidently needed. The final rule clarifies several areas of concern previously identified by advocates such as: 1) Intermediate behavioral services must be covered to the same extent that plans incorporate intermediate level of services for medical/ surgical conditions. 2) Residential treatment facilities for mental health and substance disorders must be covered as an inpatient benefit if the insurer covers either skilled nursing facilities or rehabilitation hospitals as an inpatient benefit. 3) Partial hospital or intensive outpatient mental health or substance use disorder services must be treated as a covered outpatient services if the plan covers home health care as an outpatient benefit. Passing judgment on the “comparability” of medical necessity reviews will be critical in preventing insurers from resorting to more stringent application of criteria in order to circumvent this law as will scrutinizing the bureaucratic processes to which they apply to the plan’s approval and utilization review processes. In each of the 6 categories, each incorporating a multiplicity of issues subject to a requirement of NQTL comparability, insurers may not apply more stringent processes to mental health/ substance use disorders than they do to medical / surgical benefits. Both advocates and the state share an interest in the vigorous enforcement of this law – for advocates it means assuring that their loved ones receive the treatment to which they are entitled through their health insurance policies and for the state it means assuring that insurers pay for the care for which their enrollees have contracted thus avoiding the shifting of costs to the public sector. Reaching the desired outcome from the robust application of the MHPAEA will require: 1) Forcing plans to disclose their medical necessity criteria, evidentiary standards, etc. and how they are applied to MH/ SA and medical/ surgical services. 2) Education of the interested public by advocacy and professional organizations about their rights under the law and about how to bring their complaints to the DFS, the NYS agency charged with protecting those rights under the law. That, therefore, is the reason we need to work towards the designation of a Parity enforcement bureau within NYS DFS.
Dr. Perlman is the Director of the Department of Psychiatry at Saint Joseph’s Medical Center in Yonkers, New York and a past president, New York State Psychiatric Association.
