The passage of the federal Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) represented a landmark moment for those fighting for parity in behavioral health benefits. In the years since MHPAEA and its implementing regulations went into effect, many of the financial restrictions and treatment limitations previously imposed on behavioral health benefits have disappeared. However, some insurance carriers continue to employ discriminatory practices, particularly in the context of utilization review and medical necessity review of ongoing behavioral health care and treatment.
In response, the New York State Psychiatric Association (NYSPA) is working on a new initiative called the Parity Enforcement Project, a joint project of NYSPA and the American Psychiatric Association. The Parity Enforcement Project is designed to educate and assist behavioral health providers, patients and their families in challenging adverse benefit determinations with respect to mental health and substance use disorder benefits. Through the Project, we hope to provide individuals with easy access to tools already available under federal law to fight back against discriminatory practices by health plans.
Some of the health plan practices we hope to target include:
- Reductions in the frequency of covered or reimbursed visits;
- Pre-payment medical record reviews;
- Requests for peer interviews;
- Requirements for outpatient treatment reports;
- Imposition of prior authorization requirements on behavioral health treatment;
- Imposition of numerical visit limits;
- and Notification that behavioral health treatment will no longer be covered by the health plan.
The Project focuses on provisions of federal law that address disclosure of information in connection with compliance by health plans. Under MHPAEA as well as the federal Employee Retirement Income Security Act (ERISA), plans are required to provide access to certain documents that govern the way the plan is operated and the way benefits are administered.
Under MHPAEA, current or potential plan participants may request copies of medical necessity criteria used by the health plan to make determinations regarding mental health or substance use disorder (MH/SUD) benefits (29 C.F.R. §2590.712(d)(1)). Current or potential contracting providers are also entitled to this same information (29 C.F.R. §2590.712(d)(1)). In addition, MHPAEA mandates that plan participants be provided with the reason for any denial of reimbursement or payment for services with respect to MH/SUD benefits (29 C.F.R. §2590.712(d)(2)).
Under ERISA, plan participants and beneficiaries have the right to request copies of “instruments under which the plan is established or operated (ERISA Section 104(b)(2) and 29 C.F.R. §2520.104b-1).” This information must be provided by the plan to the requesting party within 30 days. Certain provisions of ERISA, which also apply to MHPAEA, permit individuals to designate their health care provider or other third party as an authorized representative. The authorized representative would then act on the patient’s behalf to request plan documents, request reasons for denials, or otherwise communicate with the health plan.
An initial goal of the Project is to gain access to health plan documents to ensure that plans are actually following their own internal policies and procedures when making benefit determinations regarding MH/SUD benefits. In order to do this, providers, patients and family members may request information from a health plan in writing. To facilitate such document requests, NYSPA has prepared form letters that have been posted on the NYSPA website (www.nyspsych.org) and may be downloaded and personalized by providers, patients or family members. The document request letters may take one of two general approaches, a general inquiry letter or a letter following an adverse action.
General Inquiry Letter
The general inquiry letter may be sent at any time, in advance of any adverse action, to request access to plan documents under ERISA and/or MHPAEA. A general inquiry letter might be useful if a patient is considering switching to a new health plan and wants to find out more about the plan’s internal policies and procedures. Another reason to use a general inquiry letter might be in response to a plan’s request for treatment notes or a plan’s request for a telephone interview with the provider in connection with continued processing of behavioral health claims. In these situations, while no adverse action has yet been taken, the plan appears to be engaging in utilization review of the patient’s benefit and a document request may be considered preventively.
If the patient participates in a health plan that is subject to ERISA, the patient or the patient’s authorized representative may request copies of any instruments under which the health plan is established or operated. This is a broad request power because it applies both to plan documents relating to medical/surgical benefits and plans documents relating to MH/SUD benefits.
However, if the patient participates in a health plan that is not subject to ERISA, for example, individual plans or ACA exchange plans, the request must be made under MHPAEA. A MHPAEA request is limited to a copy of the medical necessity criteria used by the plan to make determinations regarding MH/SUD benefits only.
Following an Adverse Action
The second approach to a document request would be following an adverse action already taken by the health plan, for example, a denial of benefits or a reduction in the frequency or amount of covered services. Following the adverse action, a plan participant or provider may make two kinds of requests under MHPAEA. First, the plan participant or provider can request copies of the medical necessity criteria used by the plan to make the instant determination. Examination of the documents provided should assist in determining whether the plan has followed its own internal policies and procedures regarding benefit determinations. Second, under MHPAEA, the patient or an authorized representative may request that the plan provide a written reason for the adverse action, taking into account the patient’s particular medical circumstances.
Failure of a health plan to provide complete and prompt responses to any of the document requests outlined above is a possible violation of law and may serve as a basis for complaints to federal and state regulatory authorities.
At this point, the focus of the Project is primarily on the policies and procedures of commercial insurance carriers. However, we expect that final regulations regarding the application of MHPAEA to Medicaid plans will be issued in the coming months. We hope to include more information about disclosure requests to Medicaid fee-for-service and Medicaid managed care plans in a future column.
The next phase is to compile and review plan responses to provider and patient document requests, with patient identifying information redacted. Through this process, we hope to identify benefit determinations that lack clinical support and detect ongoing patterns and practices of discrimination that may be forwarded on to governmental regulators for further investigation. The Parity Enforcement Project is not limited to New York State and we hope that it will be expanded nationally in the future.
For more information on the Parity Enforcement Project, please visit the New York State Psychiatric Association website (www.nyspsych.org) or contact us at (516) 542-0077 or firstname.lastname@example.org.