Summary of Proposed Rule to Strengthen Mental Health/Addiction Parity Law

As it is the goal of Threshold Billing Solutions to keep you informed of current events as they relate to your revenue management and treatment delivery system, we wanted to provide you a summary of a recent announcement by the Biden administration.

On Tuesday (July 25, 2023) new rules were proposed to strengthen parity between mental health/substance abuse and medical/surgical requirements by improving access to mental health and substance use disorder treatment for more than “150 million Americans”. The proposed rules will be open for public comment before being finalized with a link provided at the end of this document if you would like to submit comments.

In discussing the importance of ensuring equal access to mental health and substance use disorder  benefits, Acting Secretary of Labor Julie Su, said “Mental health care is as important to the well-being of America’s workers as medical care, and we must eliminate barriers to getting people the lifesaving care that they often need.”

Despite the existence of the Mental Health Parity and Addiction Equity Act (MPAEA) since 2008, those seeking coverage for mental health and substance use disorder treatment continue to face significant barriers when attempting to use their insurance benefits compared to medical or surgical benefits. According to a recent study cited by the administration, there is a growing disparity in reimbursement rates between in-network mental health/substance abuse treatment and medical/surgical providers (1).

Additionally, participants, beneficiaries, and enrollees must utilize out-of-network providers for mental health and substance use benefits significantly more often than when accessing medical and surgical benefits (2, 3). Only 21% of adults who had any mental illness treatment in 2020 (4) were able to access treatment, while fewer than one in ten with a substance abuse disorder received treatment.

Current research findings show that people with private health coverage continue to report having significant difficulty finding a mental health provider in their health plan’s network compared to in-network medical providers (5).

Despite repeated efforts aimed at mental health/substance use disorder parity, insurers too often make it difficult to access necessary treatment, causing millions of consumers to seek care with out-of-network providers resulting in significantly higher costs (6) and out of pocket payments for the client, or they just give-up seeking treatment altogether.

In fact, insured people are more than twice as likely to be forced to use out-of-network providers and pay higher fees for mental health and substance abuse treatment than for medical or surgical care. And the problem is getting worse: in recent years, the gap between usage of out-of-network for mental health and substance use disorder benefits versus medical/surgical benefits increased 85% (7).

The new proposed rule reinforces MHPAEA’s fundamental goal of ensuring that families have the same access to mental health and substance use benefits as they do physical health benefits. The proposed rule change would make it easier to get in-network mental health care and eliminate barriers to access that keep people from getting the care they need when they need it.

Specifically, the proposed rule would (general summary):

• • Require health plans to make changes when they are providing inadequate access to mental health and substance abuse treatment. In 2020, Congress made changes to MHPAEA that require health plans to conduct meaningful comparative analyses that will help ensure that access to mental health and substance use benefits is no more restrictive than for medical benefits.  These rules would make clear that health plans need to evaluate the outcomes of their coverage rules to make sure people have equivalent access between their mental health/substance abuse and medical benefits.  This includes evaluating the health plan’s actual provider network, how much it pays out-of-network providers, how often prior authorization is required and the rate at which prior authorization requests are denied. These analyses will show plans where they are failing to meet their requirements under the law and will require insurance plans to improve access to mental health care by:
    • • Including more mental health professionals in their networks or reducing red tape to get care,  and
    • • Be in full compliance with the law.

• • Provide specific examples that make clear the following:
    • • Health plans cannot use more restrictive prior authorization processes than other medical management techniques.  
    • • Health plans cannot have “narrower” networks that make it harder for people to access mental health and substance use disorder benefits than their medical benefits, and
    • • Health plans must use similar factors in setting out-of-network payment rates for mental health and substance use disorder providers as they do for medical providers.
    • • Close existing loopholes. When MHPAEA was first enacted, it did not require non-federal governmental health plans, like those offered to state and local government employees, to comply with its requirements. The proposed rule would close that loophole and codify Congressional changes made to MHPAEA by requiring more than 200 additional health plans to comply with MHPAEA.
    • • Further assess travel and distance requirements insurance plans are using to determine in-network mental health and substance use treatment coverage and if those distance requirements unduly limit consumer access to in-network providers.

This proposed rule would help increase utilization of mental health and substance use treatment, ensure comparable payment for mental health/substance care professionals, and incentivize (according to the current administration) more people to join the mental health workforce. In addition to announcing the proposed rule, the current administration also announced the intention to issue a request for information on how it can best work with states to ensure compliance with MHPAEA’s critical protections for the millions of Medicaid beneficiaries enrolled in private Medicaid health plans.

“Anyone who has ever lived with a mental health condition or substance use disorder — or who has a friend or family member who has — knows how hard getting through the day can be at times and should not have to be worried about facing obstacles to getting treatment,” said Assistant Secretary for Employee Benefits Security, Lisa M. Gomez. “Yet, throughout the U.S., people in need of help continue to encounter illegal restrictions on their mental health and substance use disorder benefits and struggle to find mental health and substance use treatment providers that participate in their plan’s networks.”

It is believed that while these proposed rule changes, if enforced, will take time to implement, it is hoped they will result in improved access to those needing mental health and substance abuse treatment services, expand in-network panels and increase revenues for current providers.

Threshold Billing Solutions hopes this summary of the current administration’s proposed rule changes helps untangle this complex issue and feel free to reach out to us if you have any questions on this critical matter.

Please send comments regarding this new proposed rule via email to mhpaea.rfc.ebsa@dol.gov. To be assured consideration, comments must be received no later than October 2, 2023. All comments submitted to DOL will be shared with HHS and the Treasury Department and posted on DOL’s Employee Benefits Security Administration’s (EBSA) website.

If you would like to view the full Technical Release (2023-01P) related to the “Request for Comments” for the new proposed rule, click on the following link: https://www.dol.gov/agencies/ebsa/employers-and-advisers/guidance/technical-releases/23-01

Appendix

1. 1. Maryland: Md. Code, Ins. § 15-144 – reporting documents available at: https://insurance.maryland.gov/Consumer/Pages/workgroups.aspx (Click on Mental Health Parity Workgroup link)

1. 1. New Mexico: Senate Bill 273 (effective January 1, 2024) – reporting documents available at: https://www.osi.state.nm.us/pages/bureaus/mcb/resources/mental-health-parity

1. 1. Pennsylvania: 40 Pennsylvania Consolidated Statutes §§ 908-14b and 4301-4304 – reporting documents available at: https://www.insurance.pa.gov/Companies/ProductAndRateRequire/Documents/MentalHealthParityGuidance.pdf

1. 1. Factors Affecting State-Level Enforcement of the Federal Mental Health Parity and Addiction Equity Act: A Cross-Case Analysis of Four States. Journal of Health Politics, Policy and Law, 2023 Feb 1; 48(1): 1-34    https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9938503/

1. 1. Assessment of Perceptions of Mental Health vs Medical Health Plan Networks Among US Adults With Private Insurance, Susan Busch, PhD. and Kelly Kyanko, MD, MHS. JAMA Network Open, 2021,  Oct; 4(10): e2130770.  https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8536951/

1. 1. Prices and Cost-Sharing In-Network vs. Out-of-Network for Behavioral Health, 2007-2017, Nicole M. Benson, M.D. and Zirui Song, M.D. Health Affairs, 2020 July; 39(7): 1210-1218.   https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8128060/

1. 1. Millman Research Report, The Bowman Family Foundation, 2019.  https://www.milliman.com/en/insight/addiction-and-mental-health-vs-physical-health-widening-disparities-in-network-use-and-p