Providers and Payers React to New Mental Health Parity Report Deficiencies

The biennial report on Mental Health Parity and Addiction Equity Act (MHPAEA) shows that health plans are not yet up to speed with new parity requirements.

The results are in, and they don't look good. On January 25, the biennial report on Mental Health Parity and Addiction Equity Act (MHPAEA) showed that health plans are not yet up to speed with new parity requirements. The focus was on the reporting of non-quantitative treatment limitations (NQTL), or plan-imposed limits that go beyond cost-sharing and allowable visits (quantitative). Providers and payers alike are reacting to the report, which includes multiple recommendations for parity compliance and enforcement.

Five key findings

The MHPAEA report was the first since health plans were required to "provide comparative analysis" of their NQTLs, which include "limitations or exclusions based on medical necessity, facility type, prior authorization, or standards for admission to a provider network" among others. The report—issued by the three federal agencies that have MHPAEA oversight (the Departments of Labor, Treasury, and Health and Human Services; "the Departments")—included the following key findings and recommendations:

A focus on NQTL enforcement. NQTLs are required by Consolidated Appropriations Act (CAA) as of February 2021. The report found that "[n]one of the [NQTL] comparative analyses EBSA or CMS have initially reviewed to date contained sufficient information upon initial receipt." (EBSA, the Employee Benefits Security Administration, and CMS are charged with MHPAEA enforcement.)

Lack of compliance ranged from inadequate details, accuracy, evidence, analysis quality, and scope to a complete lack of response.

Corrective actions and plan response. EBSA and CMS have notified plans of non-compliance, noting that "26 plans and issuers so far have agreed to make prospective changes to their plans."

Recommended penalties. The report recommends civil financial damages for non-compliance: "EBSA believes that authority for DOL to assess civil monetary penalties for parity violations has the potential to greatly strengthen the protections of MHPAEA."

Concrete definitions. Noting that the "MHPAEA affords plans and issuers great latitude in defining what constitutes a MH/SUD benefit, and therefore what is subject to parity," the report recommends "that Congress consider amending MHPAEA to ensure that MH/SUD benefits are defined in an objective and uniform manner pursuant to external benchmarks that are based in nationally recognized standards."

Making more resources available. The report was not without positives, including the extensive stakeholder engagement that has led to consumer assistance, state partnership efforts, and additional payer guidance including an updated MHPAEA Self-Compliance Tool and FAQs.

These results were in addition to a spotlight on findings related to existing parity requirements. They included health plan coverage exclusions for: 1) applied behavior analysis for autism spectrum disorder; 2) medication-assisted treatment for opioid addition; 3) drug testing for SUD; and 4) nutritional counseling for eating disorders.

Noting the relationship between stigma and parity, the report adds that "once individuals attempt to seek care, they often find that treatment for their mental health condition or substance use disorder operates in a separate, and often very disparate, system than treatment for medical and surgical care, even under the same health coverage."

MHPAEA generally applies to employer group health plans (including Medicare Advantage), managed care Medicaid, CHIP programs, and—through an Affordable Care Act amendment—individual marketplace plans.

Provider response

The elephant in the room is the nearly 15 years that have passed since the MHPAEA first required MH/SUD coverage parity. Given this, stakeholder response to this year's report varies widely beyond general and continued parity support.

The American Medical Association (AMA) stated the following in its response letter to Congress: "This report underscores two simple facts: insurers will not change their behaviors without increased enforcement and accountability, and patients will continue to suffer until that happens." The AMA added that "insurers do not care or do not know how to comply with the 2008 law." The organization echoed EBSA's call for financial penalties and continued MHPAEA enforcements.

The AMA also urged Congress to pass the Parity Implementation Assistance (PIA) Act. PIA would award state grants to support parity—noting that "[s]tates receiving the grants must request and review from private health insurance plans their required comparative analysis of NQTLs with respect to MH/SUD."

Payer response

For a payer response, HealthLeaders contacted AHIP, an industry association representing health insurance providers. AHIP SVP of communications Kristine Grow responded in part: "Since the passage of MHPAEA, health insurance providers have introduced many innovations and improvements to expand access to mental health services."

This is true.

A 2018 Yale School of Public Health study found "that the MHPAEA resulted in important changes to health plan coverage of MH/SUD treatments, including the elimination of differential annual limits, differences in many cost-sharing arrangements, and elimination of many treatment limits imposed on MH/SUD treatments." The report specifically noted that "differential financial requirements [for MH/SUD] were close to eliminated: and that some decline in out-of-pocket payments was paired with "modest increases in use and spending per enrollee."

The study results were not generally positive, however, and noted the importance of NQTL compliance. Returning to 2022 findings, the MHPAEA report stated that "many plans and issuers stated that they were unprepared to respond to the Departments’ [NQTL] requests and had not started preparing their comparative analyses."

AHIP's Grow agrees, noting that NQTL "is a new process for everyone" and that there were "just over 3 months from the time the [NQTL] certification process became law to requests being sent to health insurance providers." She adds: "It’s clear that more robust tools and templates that include examples of complex benefit analyses would be useful."

Added constraints

There is no doubt that the latest results fall short of MHPAEA requirements, and it is difficult to understand why after so many years. It is also important to understand additional barriers to parity. In a forum preceding the 2022 report release, Department of Labor Secretary Marty Walsh stressed that "when someone calls for treatment, that is the moment they need to receive it" and that "as a person in recovery, I know firsthand how important access to mental health and substance-use disorder treatment is."

But access doesn’t happen without MH/SUD providers and the shortage of them is well documented. This shortage results in either near-zero access, especially in rural areas, to appointments that cannot be scheduled for months.

In addition, parity applies to payers. But an increasing number of MH providers, particularly psychiatrists, no longer accept insurance and require patients to private pay. A 2015 JAMA Psychiatry study found that far fewer psychiatrists accepted insurance compared to other specialists: nearly 30% lower for private insurance, Medicare, and Medicaid.

What will turn the tide?

If the pandemic isn't enough reason to focus on better mental health parity, what is? COVID-19 has put MH/SUD front and center, particularly equity for people of color. Payers are focused on this issue alongside another: including behavioral health in value-based total cost of care.

Perhaps the combination of these factors—along with compliance support and penalties—will be the tipping point.