August 9, 2017
Office of the Assistant Secretary for Planning and Evaluation
U.S. Department of Health and Human Services
200 Independence Avenue, SW Washington DC 20201
Re: Comments on Strategies for Improving Parity for Mental Health and Substance Use Disorder Coverage
Submitted via email: parity@hhs.gov
To the Assistant Secretary for Planning and Evaluation:
The Blue Cross Blue Shield Association (BCBSA) – a national federation of 36 independent, community-based and locally-operated Blue Cross and Blue Shield companies that collectively provide healthcare coverage for one-in-three Americans – appreciates the opportunity to have given oral comments to the July 27, 2017, public listening session. We are following up with an extended version of our oral remarks.
The 21st Century Cures Act directed the Secretary of Health and Human Services to convene a public meeting of stakeholders to produce an action plan for improved Federal and State coordination related to the enforcement of mental health parity and addiction equity requirements.
To facilitate improved coordination through the action plan, BCBSA recommends the federal government:
- Take into account the tremendous gains in access to behavioral health services resulting for the Mental Health Parity and Addiction Equity Act (MHPAEA). Despite the complexity of MHPAEA regulations, the number of violations for non-compliance in the private employer-sponsored group health market has been small. Therefore, the action plan should build on, and not inadvertently slow through excessive regulatory burden, the progress that has already been made.
- Improve guidance concerning the federal requirements for non-quantitative treatment limitations (NQTLs). This is a prerequisite to improving coordination between regulators, because NQTLs have been a major challenge for employers and health insurers due to the breadth and uncertainty surrounding NQTL standards.
- Give states guidance to minimize differences across states in how MHPAEA reviews and investigations are carried out and resolved. Such guidance should be publicized to the employers and issuers in a way that is prospectively applied. Employers and insurers are frequently faced with new and varying interpretations between regulators which are being applied retroactively.
What follows expands on and adds detail to these recommendations.
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MHPAEA Progress
The Mental Health and Substance Use Disorder Parity Task Force found that employers and health plans have made progress in complying with MHPAEA, citing a number of independent, peer-reviewed studies.
Since the Task Force met, additional studies have come to light reinforcing this conclusion. For example:
- As the Task Force noted, MHPAEA has been particularly successful in identifying and eliminating inequities in financial and quantitative treatment limitations. Research published in Psychiatric services : a journal of the American Psychiatric Association found that before MHPAEA, the most common quantitative treatment limitations were annual visit or day limits. Post-implementation, virtually all plans dropped such limits, suggesting that MHPAEA was effective at eliminating quantitative treatment limitations.1
- Recent research published in Pediatrics found that before MHPAEA, the annual total visits for behavioral health therapy provided by mental health physicians to childern were 17.1 percent lower compared to years when MHPAEA was in effect. The findings demonstrate increased mental health services use.2
- Recent research published in Health Affairs examined whether MHPAEA was associated with increased use of and spending on mental health care and functional services for children with autism spectrum disorder compared to the period prior to implementation of the law. For such children, implementation was associated with increased use of both mental health and non-mental health services. These increases in use were not associated with higher out-of-pocket spending, which suggests that the law improved financial protection for families.3
- Countering concerns that health plan members are increasingly forced to go out of network for behavioral health services, research published in Health Affairs found that though parity was associated with increases in the probability of any use of out-of-network inpatient and outpatient substance use disorder services among users of the services – and generated an average increase of twelve additional visits (that is, one additional visit per month) in 2010 for people who used the services every month – other research confirmed that most privately insured adults who sought out- of-network mental health care did so to obtain care from a recommended or high quality provider or to continue a previously established relationship with a provider. Fewer than 3 percent of those who went out of network for mental health care reported that the primary reason was because there was no in-network physician available in their area or because they were unable to schedule a timely appointment with an in-network physician.4
- Recent research published in the Journal of Health Economics found that among plans where behavioral services were carved out, MHPAEA did not increase utilization of specialty behavioral health treatment significantly, but costs did shift from patients to plans. Thus a primary impact of MHPAEA among carve-out enrollees may have been a reduction in patient financial burden.5
- Among plans where behavioral services are carved in, recent research published in Medical Care by many of the same researchers cited above found MHPAEA was associated with increases in monthly per-member total spending, plan spending, assessment/diagnostic evaluation visits, and individual psychotherapy visits.6
- Finally, contrary to concerns about reimbursement for behavioral health professionals, recent research found that mental health parity laws were associated with a significant increase in mental health care provider wages.7
This body of research provides rich context for developing an action plan.
In addition, we note that in FY 2016, the Department of Labor cited private employer-sponsored group health plans for 44 MHPAEA compliance violations: 45 percent of those involved financial or quantitative limitations. Twenty-four of the 44 violations involved non-quantitative treatment limitations (NQTLs). No question for Blue Cross and Blue Shield Plans, zero violations of NQTL non-compliance is the goal, but this context concerning the successes of MHPAEA is important to consider in developing an Action Plan.
Improved Guidance
Health insurers need clear, consistent, and predictable rules to clarify the ambiguities in and the scope of NQTLs. Health insurers increasingly look to the Government to be a good business partner. Clear, consistent, and predictable rules (including sub-regulatory guidance) that take insurers’ issues into account are critical. This is particularly true when the rule affects specialized and technical aspects of managed care, in particular plan-level medical judgments and actuarial determinations.
For example, the ambiguity and scope of the NQTL rule has been a challenge for entities subject to MHPAEA. And even with the ambiguity, there is widespread enforcement of the NQTL rule, from both state and federal governments. There also has been a significant amount of litigation. Having clear standards, particularly for the NQTL rule, is a prerequisite to compliance and improving coordination between federal and state governments.
- A few examples where parity guidance is lacking are provider reimbursement and residential treatment – a particular concern has been residential treatment centers that are wilderness programs. These issues have been included in state investigations and are the subjects of class action and private litigation, however there has been little or no guidance on the parity analysis.
In addition, while we greatly appreciate the Departments’ efforts to reach out to industry, we urge even more engagement before the Departments issue not only the additional guidance required under the Cures Act, but also sub-regulatory guidance related to MHPAEA (FAQs, Warning Signs, Notice Requirements). It is in everyone’s interest to avoid situations where plans and issuers believe they are properly relying on a reasonable interpretation of the rules, only to feel that an FAQ, which has not be subject to notice and comment rulemaking, constitutes a significant change in requirements. This is especially unfair when the change is not applied prospectively to provide an opportunity to come into compliance.
A recent example is the FAQ related to MHPAEA testing for financial requirements (i.e., Book of Business). We appreciate the Departments’ efforts to clarify these requirements, but many states applied very strict interpretations of the initial guidance prohibiting book of business testing during the interim period and continue to take strict interpretations that may not be consistent with the new set of FAQs.
At all points, early engagement with stakeholders will help avoid later friction. For example, the Department of Labor’s “Warning Signs” document points to prior authorization as potentially problematic. However, the warning against “preauthorization every three months for pain medications” could complicate efforts to ameliorate opioid addiction. We should all work together to identify and avoid unintended consequences.
Guidance to States
Importantly, because both the PHSA and ERISA allow states to apply their own insurance laws, including laws implementing MHPAEA, state insurance regulators are essential partners in enforcing and promoting compliance among insured individual and group health plans. As the Departments continue to refine their interpretations of the statute and the regulation, particularly as they issue more subregulatory guidance, we recommend ongoing enhancement of the coordination and interpretive resources available to states. Generally, states rely on the federal government’s interpretive guidance for enforcement of MHPAEA, and in the absence of federal guidance, states are left to develop their own, varying interpretations.
Anecdotally, we are aware of plans that have faced varying standards as between states and as between DOL and the states, particularly for NQTLs. This regulatory environment complicates plans’ compliance efforts as the same regulatory provision creates different standards and requirements.
Therefore, we recommend that the DOL and HHS work hand-in-hand with state-level partners to ensure that good-faith efforts to comply with regulatory and subregulatory requirements by plans and insurers are dealt with consistently at the federal and state levels.
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We appreciate your consideration of our comments. Please contact me at 202.626.8614 or joel.slackman@bcbsa.com if you have questions.
Sincerely,
Joel Slackman
Executive Director, Legislative and Regulatory Policy
Office of Policy and Representation
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