July 31, 2017
Submitted Via Email: parity@.hhs.gov
Laurel Fuller
ASPE
200 Independence Avenue SW.
Room 424E
Washington, DC 20201
Re: Listening session on strategies for Improving parity for Mental Health and Substance Use Disorder Coverage
Dear Ms. Fuller:
The following are the comments of Stepping Stones Treatment Center in Joliet, lL ("Stepping Stones") for the public stakeholder listening session on Strategies for Improving Parity for Mental Health and Substance Use Disorder Coverage (the "Listening Session"). The Listening Session, mandated in the 21st Century Cures Act, seeks public comment on improved Federal and State coordination related to section 2726 of the Public Health Service Act, section 712 of the Employee Retirement Income Securfty Act of 1974, section 9812 of the lntemal Revenue Code of 1986, and any comparable provisions of State law. While the Listening Session is scheduled to be held July 27, 2017 from 9:30 am to 11:30 am Eastern Time, written comments may be submitted through August 10, 2017. We provide the following comments for consideration by the Assistant Secretary for Planning and Evaluation (ASPE) and the Department of Health and Human Services (HHS).
Stepping Stones has been providing Substance Use Disorder (SUD) treatment services to Will County and the surrounding areas for over 45 years. Starting as the Joliet Men's Halfway House in 1971, Stepping Stones now provides outpatient mental health and SUD treatment services as well as short- and long-term residential SUD services. Ancillary services are a standard part of the services provided and include family participation; GED classes; assistance in obtaining employment and education; and more. We are a 501c3 organization with a mission to provide our services regardless of a person's ability to pay the cost of those services.
1. How Consumers and Providers can More Easily Identify Which Agency to Approach with Parity Questions and Complaints
One of the most frequent issues that arise when we are assisting clients with potential Parity questions or complaints is identifying which State or Federal agency is responsible for oversight of a particular plan or managed care organization (MCO). The myriad areas of coverage and jurisdiction have caused confusion among our clients and the public. Here in Illinois, enforcement and oversight of Parity with respect to MCOs, health insurance plans, group health plans, non-federal governmental plans, and selfinsured plans is divided among several State and Federal regulators. This patchwork of oversight includes the Illinois Department of Insurance, the Illinois Department of Healthcare and Family Services, the US Department of Labor, and the US Centers for Medicare and Medicaid Services. It would be helpful if there were more clear cut directions on which agency should be approached for each MCO or plan Parity question or complaint. An even more effective approach and one we support would be to create one central agency that serves as the contact point for all Parity questions, complaints, and education. Patients, providers, family members, and other concerned individuals would have one location to conduct research into Parity, ask questions, identify potential violations, and file complaints. The centralized agency would be able to address both State and Federal Parity issues -either through internal processes or by referring the matter to the correct State or Federal agency responsible for oversight and enforcement of Parity with respect to the plan or MCO at issue. This "one stop shop" approach would minimize disruption to those people who are the most in need and who are undergoing one of the most traumatic events of their lives - dealing with a loved one that is desperately in need of life-saving mental health or substance use disorder treatment. We request that such an agency be designated and/or created as a joint venture between the States and the Federal government. This proposal would also create a tighter collaboration on Parity between State and Federal regulators and allow for the more efficient flow of information on Parity issues relating to MCOs or plans that operate in multiple jurisdictions as well as identifying trends in Parity education and training based upon anonymized data that could be collected about questions and complaints from consumers, providers, and the public.
2. What is the Role of State Attorneys General in the Oversight and Enforcement of Parity
Across the country there have varying levels of involvement and activity by the State Attorneys General with respect to enforcement of Parity requirements. For example, in some States, such as New York, the Attorney General has been very engaged in the enforcement of Parity requirements and has even brought legal action resulting in settlement by insurers for alleged violations. In other States, the Attorneys General have taken little to no action to seek to enforce Parity requirements upon MCOs and insurers. Even in those States where the Attorney General is active and seeks to be more involved in Parity compliance and enforcement, patients, providers, and the public are confused as to what role the Attorney General should play. The Attorneys General themselves may also have a need for more definitive guidance on what role they should or must play under Federal and State Parity laws. It would be beneficial for the public and the Attorneys General to have a better understanding and guidance on what function the Attorneys General may serve in Parity under Federal and State law. This could take the form of additional public education on their role or it could be combined with the proposal for a centralized agency as discussed in our comments under section 1, above.
3. What are the Limits of State Parity Laws Under ERISA
There have been allegations and misunderstandings about State Parity laws and how they may be preempted by ERISA. The standard Parity analysis requires a complex comparison of the terms, standards, conditions, policies, criteria, procedures, and benefits provided under a plan's or MCO's medical/surgical policy and those set forth under the plan's or MCO's mental health/substance use disorder policy. To add to this enormous burden, there have been allegations that States may not enforce certain of their own Parity laws because they allegedly conflict with the preemptive provisions of the Employee Retirement Income Security Act (ERISA). In particular, self-funded ERISA plans are generally exempt from State laws. This is an area that needs to be addressed in order to avoid unequal application of Parity requirements among various types of plans. We request that HHS issue guidance and, if necessary, propose potential legislative modifications to create a level playing field for all patients, insureds, and enrollees, regardless of which type of insurance or managed care is involved.
4. Can a Violation of State Parity Law be Considered a Prima Facie Case for Violating Federal Parity Law
While the varying State Parity laws may impose different obligations upon plans and MCOs, it would be advantageous for consumers and providers to be able to rely upon the more well-known and potentially more stringent enforcement mechanisms available under Federal Parity laws. If a State has made the legislative determination that certain plan/MCO conduct is a Parity violation, then the violation of that State law should serve as prima facie evidence that the plan/MCO violated the Federal Parity requirements. Recognition of this evidence would further the purposes underlying the enactment of Federal Parity laws by providing details to the somewhat vague Federal Parity requirements and ensuring seamless application of State and Federal requirements. The incorporation of State Parity requirements under Federal Parity enforcement mechanisms would allow for a more collaborative effort between the various State and Federal regulators. It would also create a more consistent outcome for plans/MCOs as to what consequences each will face for violations of State and Federal Parity laws. We support HHS sub-regulatory guidance on this proposal.
Stepping Stones thanks the Assistant Secretary for Planning and Evaluation and the Department of Health and Human Services for its consideration of these comments as part of the Listening Session.
Sincerely,
Paul Lauridsen
Executive Director
