American Psychological Association Practice Organization

August 8, 2017

Laurel Fuller, ASPE
US Department of Health and Human Services
200 Independence Avenue SW., Room 424E
Washington, DC 20201

Written Comments from the American Psychological Association Practice Organization on Improved Federal-State Parity Coordination

Dear Ms. Fuller:

I am submitting these comments on behalf of the American Psychological Association Practice Organization (APA Practice Organization). The APA Practice Organization is a companion advocacy organization to the American Psychological Association.¹

These comments seek to supplement the oral testimony I provided during the Public Stakeholder Listening Session on July 27, 2017. We appreciate the opportunity to provide these expanded comments on strategies for improving federal and state coordination in the enforcement of parity.

As a long-term champion of mental health parity, our organization has concerns about compliance with and enforcement of critical non-quantitative treatment limitations (NQTL) regulations developed under the statute, which are essential to preventing discrimination against Americans suffering from mental illness. We have provided comments in the past to the Mental Health Substance Use Disorder Parity Task Force, and to the three federal parity agencies (HHS, Labor and Treasury, collectively “the Agencies”) before and after they issued the Final Parity Rule implementing The Mental Health Parity and Addiction Equity Act (MHPAEA).

In our view, MHPAEA has never been sufficiently enforced. We offered two main recommendations on this issue that we believe will significantly improve enforcement and implementation of the law:

1. Increase the ability of the US Department of Health & Human Services (HHS) to step in to respond to a parity complaint if the state agency cannot or will not adequately address the concern.
2. Further increase the transparency of federal enforcement efforts.

Since I have already provided testimony on these issues, I will focus my comments on improving HHS’ ability to exercise secondary jurisdiction.

As I stated in my oral testimony on July 27, 2017, we had understood that states have primary jurisdiction and HHS has secondary jurisdiction with respect to fully-insured plans. HHS can exercise that jurisdiction if the state insurance agency cannot or will not act. In the past, when state agencies did not respond to our parity complaints, or dismissed them with no real analysis, we assumed that HHS could then step in and address our concerns.

It was not until meeting with HHS’ Center for Consumer Information and Insurance Oversight (CCIIO) last year that we realized why this was not happening. HHS takes an extremely macro view of when states cannot or will not enforce MHPAEA. HHS’ interpretation of the “substantial enforcement” standard is found in the Public Health Service Act (“PHSA”) (42 USC 300gg-22(a)) and associated regulations (45 CFR part 150). We understand that when determining whether to assert its authority to enforce the health plan requirements incorporated into PHSA by other federal statutes (MHPAEA, ACA and others,² collectively, the “PHSA Laws”), HHS examines whether a state is substantially enforcing the entire group of PHSA Laws. In other words, HHS won’t assert its secondary jurisdiction if a state is failing to enforce part of one of the PHSA laws, such as a provision of MHPAEA.

We do not understand how this type of “global” analysis squares with the language of the PHSA. Under 42 USC 300gg-22(a)(2), it seems clear that if HHS determines that a state has failed to substantially enforce a relevant “provision (or provisions)” of the PHSA, the Secretary “shall enforce such provision (or provisions) ….” (emphasis added). This language explicitly refers to the substantial enforcement of individual provisions of the law. It does not appear to give HHS discretion to assert secondary jurisdiction only if a state is globally failing to substantially enforce all of the PHSA statutes.

The regulations under PHSA also contemplate an individual, provision-by-provision analysis. Section 144.101(d) of CFR Title 45, for example, makes it clear that HHS’s procedure for determining when to assume secondary enforcement jurisdiction (see 45 CFR part 150) applies with regard to “States that fail to substantially enforce one or more provisions of part 146 concerning group health insurance, one or more provisions of part 147 concerning group or individual health insurance, or the requirements of part 148 … concerning individual health insurance.” (Emphasis added.)

Our concern is that the current approach allows a critical provision of MHPAEA to fall into an enforcement limbo as long as – as a whole -- a state is substantially enforcing the PHSA Laws. Our Humana reimbursement parity complaints³ are a perfect illustration of this problem. A company like Humana can make the rest of its parity compliance moot by violating the reimbursement parity requirement, eviscerating its network and thereby constraining patient access to mental health care.

Yet, all of the state agencies to which we have brought this issue have failed to act. We don’t know whether this is because the issue is esoteric, whether it is hard to assess or investigate, because of lack of resources or sophistication, or other reasons. But just because a parity provision is beyond the capabilities, expertise or interest of state agencies, does that mean CCIIO should be unable to bring its expertise directly to the issue?⁴ Why should this critical parity provision only be enforceable in the few states, like Texas, that globally fail to enforce the PHSA statutes?

If our analysis of the legal authority is correct, we urge CMS/HHS to change its secondary jurisdiction approach to comport with the statutory authority. We would propose, at minimum, a system that allows CCIIO to at least make an exception to the “global” analysis where it determines that a critical parity provision is not being enforced by the state.

Accordingly, we recommend that HHS change its approach to secondary jurisdiction to allow it to assert jurisdiction over facially valid complaints about any MHPAEA provision, after consulting with the state enforcement agency, where:

• The state agency has not responded to, or taken significant action on, the complaint within four months
• The state agency has indicated that it lacks the resources, expertise and/or interest to investigate the complaint; or
• The complaint concerns an issuer’s or plan’s uniform actions affecting patients in multiple states (and no state agency in those states is acting to investigate the complaints).

Thank you again for the opportunity to provide input on how to improve MHPAEA collaboration.

Sincerely,

Alan Nessman, JD Senior Special Counsel
American Psychological Association Practice Organization

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