Fall 2021
Helping families, providers and facilities obtain medically necessary mental health and autism treatments through health insurance.

The Promise of Mental Health Parity, 13 years later

Part II: Non-Quantitative Treatment Limitations

In our last newsletter, we discussed the Federal Mental Health Parity Addiction Equity Act (MHPAEA) from the perspective of Network Adequacy. Health plan networks simply do not have the capacity to serve all who need mental health services, forcing members to go out of network and pay for a much higher portion of services, or forego services all together. In our current newsletter, we will discuss some of the non-quantitative treatment limitations (NQTLs) that we typically encounter in our practice of helping consumers obtain services. 
To review, the key promise of MHPAEA is that ”the financial requirements and treatment limitations for mental health or substance use be no more restrictive than the predominant financial requirements or treatment limitations applied to substantially all medical and surgical benefits covered by the plan, and that there be no separate treatment limitations that are applicable only with respect to mental health or SUD benefits.” Quantitative treatment limitations (QTLs) include things like visit limits, treatment durations, cost-sharing (co-insurance, co-pays, deductibles, etc.) -- basically anything that can be counted or quantified. NQTL’s are more complex and include nearly every other type of limitation placed on a mental health service that is not placed on substantially all treatments in the same class (inpatient, outpatient for in and out-of-network care, prescriptions and emergency care) on the medical/surgical side of the plan. 
Nearly five years ago, the Department of Labor issued a bulletin defining the concept and advising health plans, employers, and consumers on examples of NQTLs which could trigger a more in depth analyses. In our practice of helping families obtain mental health and autism treatments, we frequently encounter the following scenarios which likely are NQTLs:
1)    Limitations or exclusion in providing behavioral therapy in schools. (Can a child use an inhaler or insulin in a school setting when needed?)
2)    Requiring pre-authorization and ongoing utilization review (UR) for mental health treatments when it is not required for substantially all services at the same level of care on the medical/surgical side. (Must day treatment programs and behavioral therapy programs get pre-auth and UR when this is not required of substantially all outpatient programs on the medical/surgical side?).
3)    Requiring that residential treatment facilities have licensed providers or nurses on-site 24/7, be directed by psychiatrists, and have at least weekly visits with psychiatrists, when a similar level of care is not required of intermediate facilities on the medical side and not consistent with generally accepted standards of mental health care (GASC). 
4)    Blanket exclusions for certain types of mental health treatments (such as ABA), and certain types of facilities. (We frequently see exclusions for residential centers when they include a school, recreational/activity therapy, or occur in outdoor settings, even when they are fully licensed as residential mental health centers in their respective states, or have a special license to provide residential treatment outdoors). Many of these treatments are specifically for mental health conditions, and may also violate parity because they are separate treatment limitations for mental health. 
5)    Requiring accreditation from a limited list of accrediting agencies, or only requiring it for mental health facilities.
6)    Using medical necessity standards for mental health treatments that are more restrictive than generally accepted standards of care, or using the appropriate standards but failing to interpret them correctly. This may include minimizing the seriousness of mental health behaviors such as cutting or suicidal ideation, or expecting patients to first try and fail at lower levels of care. This would also include discharging before the patient is ready and able to safely function at a lower level of care, and not erring on the side of caution and safety when there is any doubt about which level of care is needed. 

The list above is a non-exhaustive one. It is important that clients and providers understand that though we have a terrific law on the books, it will only work if the regulators regulate. Our prior article mentioned the Consolidated Appropriations Act of 2021, and how consumers (and providers with client permission) can now request a comparative parity analyses from health plans/insurers. The plans have 30 days to respond, and to date, most are ignoring these requests. We encourage you to alert your state regulator (if the plan is state regulated) or your regional EBSA of the Department Of Labor (if self-funded, -- most large employers) if you do not hear back or if their response is not satisfactory. Now is the time to act. Thank you for your help and advocacy.
Case Wins

ABA Coverage Reinstated for 4 year-old boy with ASD

MHAIP advised the parent of a 4 year-old boy with ASD whose ABA benefits had run out for the year due to an annual cap on hours. We told the client that this violated federal MHPAEA. She was employed by a county. Many non-federal government employers can opt out of the federal mental health parity law. Many are not aware, however, that if they opt out, they have to go through a detailed process and actually apply to the federal government in order to do this. Her employer had not done that, and was not listed on the federal opt out list. The parent called us and we were able to provide her with advice on how to manage the situation:  

"I brought it to my employer's attention that I didn’t believe their ASR plan complied with the Mental Health Parity Law. I referenced the law and that the county didn’t appear to opt out as a self-funded government plan is required to do. I explained how and why it would be detrimental to my son to not have any autism treatment for 3 months. The benefits manager met with ASR plan and the person that is in charge of drafting the plans. After they met, I got an email saying my son will be covered throughout the year and they will correct the issue before open enrollment for next year.  Thanks again for your help. I wouldn’t have known where to start without the information you sent me."
Family Wins 2 1/2 Months of Residential Treatment After Medical Necessity Denial

MHAIP successfully won 2 ½ months of residential treatment level of care at Calo Residential Treatment Center for an adopted teen struggling with the effects of early childhood trauma and deprivation.  Regence Blue Cross Blue Shield initially denied RTC level of care as not meeting their medical necessity guidelines, but we documented the child’s long-standing issues based on his early childhood exposure to poverty and trauma and his behavioral issues at the treatment center which resulted in Regence overturning their denial.
Over $60k Coverage of Wilderness Stay Won for Teen with Depression and Trauma

A sixteen year old girl from Texas was treated for depression and trauma at a Wilderness program in Oregon. She was denied a two month stay. We appealed the denial, and on the second appeal, we got a complete overturn and payment for over $60,000 for services from Aetna.

"We are so grateful for the persistence and advocacy of Mental Health & Autism Insurance Project. Because of their hard work and expertise our insurance company reversed their denials and covered thousands of dollars in claims for our daughter's treatment. This has enabled us to continue to pay for her ongoing treatment needs. The weight of the cost of our daughter's mental healthcare treatment has been crushing at times, and it has been such a relief to have Karen in our corner."
Kaiser Required to Cover 3 Months of Residential Treatment for 16 year-old California Youth

We requested a 3 month post-hospital stay in a residential treatment center for a 16 year-old California youth who had recently been diagnosed with ASD and psychosis. We advised the family to request the services in advance from both the treating providers and the Kaiser member services department. Northern CA Kaiser failed to timely diagnose him and disagreed that residential treatment was medically necessary. MHAIP helped the family appeal their denial, and took the case to external review with the state. The reviewing agency agreed that services were medically necessary, and have required Kaiser to pay for the treatment.  
Anthem Health Keepers Agrees to Provide ABA Therapy to the Individual and Small Group Market in Virginia

A family from Virginia with a six year-old son with autism contacted us when their Anthem Health Keepers Plan informed them that ABA was an excluded benefit. The VA legislature had recently passed a law which required ABA to be provided in the individual and small group markets, but they left in a loophole which allowed the plan to exclude a service that exceeded the essential health benefits that were negotiated by the state when they chose their base benchmark plan. ABA was such a service, and when the law passed in March of 2020, the VA Bureau of Insurance (BOI) issued a letter to the plans informing them that they were not required to provide any benefits which exceeded essential benefits. We appealed the denial, citing the federal MHPAEA, that Anthem defined autism as a mental health condition, and a recent court case (Doe vs United Health Care).  Anthem upheld their denial exclusion. We appealed to the state Bureau of Insurance (BOI). They initially upheld Anthem's position. When we received the news, we wrote back and requested that they reconsider their position, providing additional information. We heard back several months later that BOI had convinced Anthem that their exclusion was a non-quantitative treatment limitation that violated federal MHPAEA, and Anthem agreed to provide coverage for ABA services from January 2021 onward.  
Putting Feda Funds to Work

Since our last newsletter, we have provided advocacy assistance to two families through the Feda Fund:

We have provided 10.5 hours of donated advocacy services to the family of a 15 year old teen from Riverside County, CA who had had several unsuccessful placements in state. We advocated for an out of state wilderness program, where she resided for nearly two months, made a lot of progress and is now in a longer-term residential treatment center. 
"I write a thankful and heartfelt letter to say thank you for all your efforts...Yes, it is frustrating that insurance rules are not playing in my daughter's favor. But I can rest knowing that you didn’t leave any stone unturned."

We donated 3.5 hours to the family of a 15 year old girl with depression and suicidal ideation from Ohio who completed a 3 month stay in a Wilderness program.  United Health Care denied the appeal. Money from the Feda Fund allowed us to finish the second level appeal, exhaust the process, and refer the family to an attorney who could work on contingency. 
Feda and Mu

We will need your continued financial support to be able to keep this wonderful program, and Feda and Mu’s memories alive.  Thank you for your active support.

Executive Director and Founder
MHAIP Executive Director, Karen Fessel Dr. PH, at Autism Law Summit

MHAIP Executive Director, Dr. Karen Fessel (3rd from left), participated in a panel discussion on appeals last month at the 15th Annual Autism Law Summit in Columbia, South Carolina.
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