Federal Government Releases Requirements Related to MHPAEA

Last week, the federal government released a 536 page document detailing “Requirements Related to the Mental Health Parity and Addiction Equity Act.”  This document was developed, in part, to provide greater clarity to health plans and health issuers on how to  respond to parity disclosure requests, which were previously mandated by the Consolidated Appropriations Act of 2021.  Last year, the Departments (Treasury, HHS, and US Department of Labor) requested public feedback on MHPAEA and received over 9500 comments including public comments from MHAIP, reflecting our struggles and concerns.

The key tenets of MHPAEA include that treatment limitations for mental health/substance abuse (MH/SUD) shall be no more restrictive than substantially all treatments for medical/surgical care (MED/SURG), and there shall be no treatment limitations that pertain only to MH/SUD.  Below are some issues that may be of interest to our readership.

Networks and Access:  The final proposed rules affirmed that plan participants face greater restrictions in accessing MH/SUD treatment compared to MED/SURG treatment, and that this extends to “standards related…to network composition, standards for provider and facility admission to participate in plan networks…, reimbursement rates, and procedures for ensuring that the network includes an adequate number of each category of provider/facility to provide covered services under the plan or coverage.”  Plans will need to provide data to explain how disparities in MH/SUD access are not related to discriminatory policies, in order to justify differences in network adequacy between the two groups.  A related issue is systemic underpayments for non-network MH/SUD providers when compared to similar qualifications of providers on the MED/SURG side of the plan.  

Autism is a MH condition, and core treatments cannot be excluded:  With respect to autism, the rules reinforced that autism (as well as several other conditions listed in the DSM) are mental health conditions under parity, and must be consistent with diagnostic characterizations in the most current versions of the DSM or ICD, regardless of specifications in state law (some states define autism as a medical condition).  If a plan covers any treatments for autism, they must cover the full range of evidence-based treatments, including core treatments (e.g. ABA therapy) if they do so for most MED/SURG treatments.  

Complainants and authorized reps entitled to Parity Disclosure information:  The Departments affirmed that complainants (beneficiaries), their authorized representatives, treating providers, and other relevant parties are entitled to receive the results MHPAEA disclosure requests about their adverse benefit determinations.  MHAIP frequently submits MHPAEA disclosure requests and too often, these request are ignored or we are erroneously informed that they are required to be provided only to regulatory agents.  

Independent clinical standards are not biased:  The Departments also affirmed that generally recognized independent professional medical or clinical standards are not considered biased and are considered objective standards.  In writing medical necessity appeals, MHAIP prefers to use these independent clinical standards (LOCUS/CALOCUS-CASII, ASAM, CASP guidelines for ABA) in medical necessity arguments.  We have also noted that an increasing number of health plans are using standards that at least incorporate many of the basic tenants of these guidelines. 

Sunset of Opt outs:  The document clarifies that loopholes that previously allowed certain types of plans to opt out of MHPAEA have been closed.  We recently had an employer group try to tell us that they were not bound by federal MHPAEA, which we were able to readily refute with this info. 

Procedure for assessing compliance:  After an initial request for a parity disclosure/comparative analysis, the plan must submit the request to the reviewing department (usually DOL, but it could be a state regulator).  If the analysis is insufficient in justifying the difference/concern/limitation, the department will specify what additional information must be provided. Typically supporting data will be requested. If the department determines that the treatment limitation is out of compliance with parity, the plan must specify what they will to do come into compliance. The two parties go back and forth multiple times, in order to reach agreement.  

MHAIP’s concerns with this procedure:   Specifically, when we have filed complaints with both state and federal agencies, we have one opportunity to express our concerns, while the plan goes back and forth multiple times with the agency, building rapport and coming to mutual understandings.  We often do not have an opportunity to view or respond to the plan’s rebuttal until the case is closed.  Sometimes we are successful in getting cases re-opened, but it should not come to that. If the health plans are able to view our concerns and respond, we need to be able view how they respond in real time, so that we can refute or further explain our position to the regulatory agency, who is acting as an arbiter.   We recently had a case with the enforcement department of EBSA/DOL.  After nine months of back and forth with the plan, they closed the case and refused to provide us with any information.  We are currently waiting for the results of a FOIA (public records) request. This procedure needs to be re-examined, with consumers being viewed as potential partners in providing valuable information enabling enforcement of MHPAEA.

No Monetary Penalties:  Currently, there are no monetary penalties involved in violating federal MHPAEA, at least in the regulatory sphere (litigation may be another matter). The current rules support requiring health plans to cease discriminatory practices.  While we appreciate that the Departments are prioritizing mental health parity, we encourage them to revisit this if they have difficulty securing plan compliance.  Sometimes stiff monetary penalties are what health plans need to take the process seriously and comply with the law. 

Overall, The Rules provide sufficient information to assist health plans in complying with Federal MHPAEA.  They also offer guidance to state regulators and provide several examples of non-compliance which may be useful to advocates in highlighting potential parity violations. There is an emphasis on the importance of access to MH/SA treatment, which reflects a deep understanding of one of the major problems that so many families encounter in their quest for treatment today: lack of in-network providers.  The Biden-Harris administration issued a strongly supportive statement.  We hope that there will be future opportunities to inform the Department, and that they will continue to offer clarification to all parties as needed.  MHPAEA continues to be a work in progress. 

Highlights From Recent Appeal Wins

Retro Review Results in 101 Days of RTC Care Covered

MHAIP submitted claims for the family of an adolescent female with diagnoses of Anxiety, OCD, and ADHD for 101 days of care at a residential treatment center.  The family came to MHAIP after she was admitted for treatment, we submitted claims which were then denied due to lack of pre-authorization.  After reviewing the Plan Manual, we determined that we could request a post-service, or retro review of the claims.  MHAIP submitted the medical records from her treatment with the retro review request.  Anthem was not reviewing the request in a timely manner, necessitating many phone calls by MHAIP and the mother until a response was ultimately issued 5 months later.  Her entire stay of 101 days was covered and the family is awaiting reimbursement.

Overturn Won for Denial of Ongoing RTC Care

We won 3 ½ months of RTC level of care for a 16-year-old trans boy struggling with severe depression, post traumatic stress, self-harm with suicidal ideation. Evernorth Health Services (Cigna) denied his stay at an RTC after three weeks, but due to the detailed medical records and his history of past IOP, PHP and RTC care that did not improve his symptoms and behaviors, Evernorth overturned its denial at the first level of appeal, which is rare. The Evernorth overturn letter approved RTC level of care through the date that we provided medical records, thereby giving us the opportunity to submit more current medical records and argue for continued RTC level of care through discharge, which is expected to be approximately one year.

"Three weeks into, what so far has been a nine month stay at a long term Residential Treatment Center, our insurance company denied our son’s coverage. Since then, they have made things as difficult as possible by withholding information, providing contradicting and sometimes incorrect instructions, and delays in communications (just to name a few examples). Luckily, we had the MHAIP team in our corner. Debra did an amazing job in preparing detailed and effective appeal documents. She worked closely with our son’s treatment team (who mentioned to us how knowledgeable she was) to help them draft a letter of medical necessity. With MHAIP’s advocacy, we were able to get an additional 15 weeks of coverage approved (the time period for which we had filed an appeal) and we are currently in the process of requesting coverage for additional dates. We are sincerely grateful to the team at MHAIP."

MHAIP Wins Overturn for RTC Admission

We won the approval of admission and a 7 day stay (and ongoing) at an RTC for a 15-year old girl with autism struggling with depression, anxiety, selective mutism, and disordered eating. This was a complex case because the girl had already spent 7 weeks at an eating disorder-focused residential treatment program and Anthem would not approve admission to another behavioral health residential treatment center. We were able to show the severity of her symptoms and that all other types of outpatient and partial hospitalization programs had failed, which resulted in an overturn of the denial. MHAIP will continue to provide utilization review services required by the insurer for her ongoing care.

Highlights of Pre-Authorization/UR Services

WS, a 19-year-old from MD with ASD level 1, received 162 days of coverage from Care First BCBS at a residential treatment center in Utah.  

JR, a 17-year-old from New York with OCD, Social Anxiety Disorder, GAD with Panic Attacks and Major Depressive Disorder received 35 days of coverage from United at a residential treatment center in New Hampshire.

BG, a 20-year-old from MA with Anxiety Disorder and Depression received 57 days and ongoing of coverage from BCBS at a residential treatment center in New Hampshire.

JA, a 13-year-old from ME with Social Anxiety Disorder and ASD received 50 days of coverage from Anthem at a residential treatment center in New Hampshire.

LT, an 18-year old from New Hampshire with Major Depressive Disorder and Generalized Anxiety Disorder received coverage for her entire 59 day stay from AETNA at a residential treatment center in New Hampshire. 

KV, an 18-year old from PA with anxiety, Depression, and PTSD, received coverage for her entire 120 day stay from United Health Care, at a residential treatment center in NH.

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