Parity Implementation Coalition

July 26, 2017
John R. Graham
Acting Assistant Secretary for Planning and Evaluation
200 Independence Avenue SW Room 424E
Washington, DC 20201

Dear Mr. Graham:

On behalf of the members of the Parity Implementation Coalition (PIC), thank you for the opportunity to provide input on Strategies for Improving Parity for Mental Health and Substance Use Disorder Coverage.

The Parity Implementation Coalition is an alliance of addiction and mental health consumer and provider organizations. Members include the American Academy of Child and Adolescent Psychiatry, American Society of Addiction Medicine, Depression and Bipolar Support Alliance, Hazelden Betty Ford Foundation, MedPro Billing, Mental Health America, National Alliance on Mental Illness, National Association of Psychiatric Health Systems, National Association of Addiction Treatment Providers, and Young People in Recovery. In an effort to end discrimination against individuals and families who seek services for mental health and substance use disorders, many of these organizations have advocated for more than nineteen years in support of parity legislation and issuance of regulations. We are committed to the prompt and effective implementation of the Mental Health Parity and Addiction Equity Act (MHPAEA)

Please find below recommendations based on our experience over the last 7 years in working with consumers, providers and health plans with respect to implementation of the law. Appendix A provides suggestion on how non-quantitative treatment limitations (NQTLs) could be simplified with a 5-part checklist. Real life stories of parity non-compliance are also detailed in Appendix B.

Transparency and Disclosure

• Transparency is essential to ensure that plan participants and beneficiaries receive medically necessary health care coverage and access to equitable addiction and mental health treatment based on parity-compliant benefit plan design, medical management protocols, and other non- quantitative treatment limitations (NQTLs).
• Proper disclosure of information is especially important to plan participants and beneficiaries seeking mental health/substance use disorder (MH/SUD) treatment and recovery support services and the providers who help them. This is true whether a patient is trying to understand an adverse benefit determination or challenging what appears to be an unlawful NQTL utilized by a health plan, either as written, as applied or both.
• One of the most common barriers reported by the patients and providers PIC members serve is the lack of disclosure by health plans on the development and application of NQTLs.
  • Parity compliance testing cannot be performed on coverage limitations such as prescription drug formulary design, medical and administrative management techniques, including restrictions based on facility type or provider specialty, without this information.
  • For example, to determine whether a plan is in compliance with the law, consumers and their providers, who often serve as authorized representatives for patients, may request medical management criteria and protocols, information on how these criteria and protocols are developed and applied (both as written and in operation), for both MH/SUD and medical/surgical benefits.
  • e have been made aware of hundreds of such requests by authorized provider representatives that have gone unanswered.
  • We emphasize once again how no consumer, authorized representative or regulator can possibly know whether a plan is compliant with or in violation of the NQTL rule of the federal parity law based on the information that, to our knowledge, has not been submitted by any plan to date.

Transparency and Disclosure Recommendations

• The Departments of Health and Human Services and Labor should develop additional Frequently Asked Questions (FAQs) to clarify what is meant by “documentation” as used in sub-regulatory guidance relating to each of the components of the NQTL test.
• To ensure documents and information are fully disclosed, consistent
  • Based on our experience with assisti with MHPAEA’s statute and implementing regulations, federal and state agencies should develop forms to include the following documents and information to be supplied for review upon requesting patients, we recommend utilization of a 5-step parity compliant analysis and state and federal regulators issue template forms that require the disclosure of key plan documents. The 5-step process explained and illustrated below in Appendix A provides clear guidance on the type of information and documentation that is required to be disclosed.
  • These 5 steps are based on the MHPAEA Final Rules, related federal regulations, as well as previously issued sub-regulatory guidance.
• Parity regulatory guidance required under the 21st Century Cures Act on non-quantitative treatment limitations and other issues should be issued as soon as possible, but no later than the statutory deadline of December 2017.
• Random audits should be utilized by federal and state regulators to improve compliance.
• Consistent with the requirements in the 21st Century Cures Act, regulators should audit plans with at least 5 violations based on allegations of non-compliance with MHPAEA.
• All enforcement actions and compliance correction plans should be made public on appropriate federal and state websites.
• Denial rates for each benefit classification for MH/SUD and medical/surgical for group health plans should be tracked, collected and made public on state and federal websites (including the plan’s methodology for classifying and tracking such denial rates).
• As required by the 21st Century Cures Act, the Centers for Medicare and Medicaid Services (CMS) and DOL’s Employee Benefits Security Administration (EBSA) should issue a report on parity compliance and federal investigations of parity non-compliance. Such a report should include market data providing indicia of compliance and non-compliance, rather than merely complaint- driven reporting.

Consumer Understanding of their Rights and Benefits under MHPAEA

Enrollees have limited knowledge of their rights and benefits under the parity law. A survey by the American Psychological Association found that only 4% of Americans said they were even aware of MHPAEA. Neither the Administration nor health plans have engaged in any major public awareness campaigns to inform enrollees about the law. The Substance Abuse and Mental Health Services Administration (SAMHSA) has provided information on its website and DOL and Center for Consumer Information and Insurance Oversight (CCIIO) have help lines, but the information provided on the help lines to consumers is too complicated and overly comprehensive for them to understand (e.g., legislative background on HIPAA and MHPAEA). In certain states, state officials have told enrollees that the state is not required to implement or enforce MHPAEA and have outdated information on their website about the law.

We have also found that when plan members are aware of the parity law and believe a plan has violated it, they struggle with how and where to file a complaint given the myriad of federal and state entities with enforcement authority over MHPAEA.

Recommendations to Improve Consumer Understanding of their Rights under MHPAEA

• An interactive consumer parity portal on relevant state and federal websites should be developed within 6 months to allow consumers to easily access all publicly available parity information and submit complaints to a central online clearinghouse. A public education campaign should accompany the release of the interactive portal to make patients and providers aware of the resource.
• A training curriculum for consumers on MHPAEA for DOL, the CCIIO and stakeholders should be developed and geared towards 9th grade level of education. Regional or onsite technical assistance must be available upon request.
• Agencies should clarify how MHPAEA applies across various plan types including, appeals rights, timelines and agency responsible.
• Conclusion

Conclusion

Thank you again for the opportunity to provide comments. We look forward to working with the Administration in any way we can to ensure the Mental Health Parity and Addiction Equity Act is fully implemented and enforced so consumers have access to the non-discriminatory mental health and substance use disorder treatment as promised to them under the law.

Sincerely,

Mark Covall
Co-Chair
Parity Implementation Coalition

Marvin Ventrell
Co-Chair
Parity Implementation Coalition

Appendix A: Sample NQTL Compliance: 5-Step Process

5-Step Parity Compliance NQTL Analysis (template forms should be developed by federal and state regulators to ensure all of this information is disclosed to both plan members and their authorized representatives).

Step 1. Describe the NQTL and both the MH/SUD services and medical/surgical services to which it applies. (Any separate NQTL that applies only to MH/SUD benefits within any particular classification is in violation of MHPAEA).

Step 2. Identify the factor(s) used in the development of the specific NQTL.

A description of each of the factors that were in fact used to develop the specific NQTL, including the rationale for the relevancy of such factor(s) and the sources for ascertaining each of these factors: e.g., external research studies, internal claims analyses, internal quality standard studies, etc.

Illustrative examples of factors that could be used include:

• Excessive utilization
• Recent medical cost escalation
• Lack of adherence to quality standards
• High levels of variation in length of stay
• High variability in cost per episode of care
• Lack of clinical efficacy of treatment

Step 3. Identify the evidentiary standard(s) used to define such factor(s). A description of the evidentiary standard(s) used to define each of these factors identified in Step 2.

Illustrative evidentiary standards that may define the factors listed above include:

• Two standard deviations above average utilization per episode of care (may define excessive utilization)
• Medical costs for certain services increased 10% or more per year for 2 years (may define recent medical cost escalation)
• Deviation from national generally accepted quality standards for a specific disease category more than 30% of time based on clinical chart reviews (may define lack of adherence to quality standards)
• 25% of patients stayed longer than the median length of stay for acute hospital episodes of care (may define high level of variation in length of stay)
• Episodes of outpatient care are 2 standard deviations higher in total costs than the average cost per episode 20% of the time in a 12 month period (may define high variability in cost per episode)
• More than 50% of outpatient episodes of care for specific disease entities are not based on evidence-based interventions (as defined by nationally accepted best practices) in a 12 month sample (may define lack of clinical efficacy)

Please note: The term “evidentiary standards” may also include any evidence a plan considers in developing its medical management techniques, such as recognized medical literature and professional standards and protocols (including comparative effectiveness studies and clinical trials).

Step 4. Methods and Analyses used to establish comparability in the development of the NQTL.

A description of the methods and analyses used to determine that any factors used, evidentiary standards relied upon, and processes employed in developing the NQTL for MH/SUD services and medical/surgical services are comparable. The results of these analyses are to be included.

Illustrative methods and analyses to determine if factors, evidentiary standards, and processes are comparable include:

• Internal claims database analyses that showed key factors (which are each defined by specific evidentiary standards) were present in a comparable manner in both MH/SUD and medical/surgical class of benefits.
• Review of the published literature on rapidly increasing cost for services for both MH/SUD and medical/surgical conditions and determination that a key factor(s) was present with similar frequency in specific categories of both MH/SUD and medical/surgical services.
• Methodology and results for analyzing that all medical/surgical service categories that had a “high cost variability” (defined in the same manner for both medical and MH/SUD services) were subject to pre-authorization, as were all types of MH/SUD services that fit this definition.
• Analyses that the processes for setting usual and customary provider rates for both MH/SUD and medical/surgical were the same, both as developed and applied, along with the results from these analyses.

Step 5. Testing and Reviews conducted to establish comparability and no more stringency in the application of this NQTL “in operation”.

Documentation of any testing, audits or reviews and the results thereof that demonstrate that the processes employed “in operation” for MH/SUD benefits in each relevant classification of benefits are comparable to and applied no more stringently than the same processes employed “in operation” for medical/surgical benefits in the corresponding classification of benefits.

Illustrative documentation of methods and analyses to determine the comparability and equivalent stringency of processes used in NQTL application, in operation, include:

• Documentation that specific audits were performed with respect to the frequency of medical/surgical vs. MH/SUD reviews within the same classifications of benefits to assure that the NQTL is applied comparably and no more stringently.
• Audit results that physician to physician utilization reviews were similar in frequency and length of time for medical/surgical vs. MH/SUD within the same classifications of benefits to assure that the reviews were comparable and no more stringently applied in these respects.
• Audit results that demonstrate that frequency of reviews for the extension of initial determinations for MH/SUD benefits were comparable to the frequency of reviews for the extension of initial determinations for MH/SUD benefits.
• Data from analyses to determine whether the out-of-pocket spending by members for inpatient SUD and MH services are similar to those for out-of-pocket spending for medical/surgical members in similar types of facilities.
• Results of compliance testing of network access standards that wait times for primary care office visits were the same as the wait times for psychiatric office visits.

Please note: There are many other processes that may be used in operation for any given NQTL, particularly those that involve medical management techniques, such as consultations with expert reviewers, clinical rationale used in approving or denying benefits, and the selection of information deemed reasonably necessary to make a medical necessity determination, etc. Plans must analyze every process employed in operation for comparability and equivalent stringency in application.

Appendix B Real-Life Stories of Parity Non-Compliance

Below are real-life stories of parity non-compliance that have been shared with the Parity Implementation Coalition. As appropriate, names have been changed to protect patient privacy.

Mark’s Story – Discriminatory Medical Management (Retrospective Review)

"My 21-year-old son is addicted to heroin. This monster has taken over his life and our whole family. On April 3, 2016 at 8:35pm I found my son shooting heroin. My son looked at me with relief to know that it was over - Mom knows now. She's got this. I said, "Are you ready to fix this?" and he said YES. I chose a treatment center in Florida and everything was a-go. I would put him on a plane leaving Albany, NY.

I thought my son had a second chance at life.

He was participating in meetings and group counseling when, 11 days into his treatment, a doctor for the health insurance company that has NEVER seen my son decides to play God with my son's life and decides he doesn't qualify for inpatient treatment. His counselor knew he was in no way ready to leave. Florida Recovery Center gave my son, an 8-year heroin user, a scholarship to a sober living center. If they hadn't, he would be back in New York and I would probably be burying my son.

Who gives anyone the right to play God with someone else's life? I am the voice for my son and will continue to do so."

Matt’s story - Discriminatory Medical Management

"My son, Matt, lost his life after being over prescribed opioids for pain relief after back surgery. Finding appropriate treatment was impossible. Fighting his insurance company became his daily routine. The doctors would continue to supply his monthly pills but gave no direction when he needed treatment to beat the addiction they caused. His insurance company would approve very short term stays, a week here and a few days there. Nothing long enough to make a difference in his recovery. There is no long term follow up in my state. Both the medical and insurance industry continue to treat those with SUD as disposable people. We must change the way we treat addiction. I used to wish Matt had cancer. At least he would have received timely, non-biased treatment."

Mary’s story - Discriminatory Medical Management

An insurance company denied coverage for "Mary" because she "isn't 'purging enough'" to warrant inpatient treatment for her bulimia. Mary binged and, after experiencing severe abdominal pain, went to the Emergency Room, where she was sent home by a doctor who told her to "go home and deal with the consequences of your behavior."

Mary was subsequently life-flighted to a different hospital only a few hours later because it turns out the pain she was experiencing was from her stomach having ruptured after she binged. Mary died from septic shock.

The insurance company paid for all of the emergency services that night, but would not pay for treatment of her eating disorder, the very disease that killed her.

Robin’s story - Discriminatory Medical Management & Lack of Disclosure

"Robin" was dealing with many severe symptoms when she was denied treatment by her insurer. The insurance representative said, "Well her functioning is okay." Robin’s physician pointed out to insurer that Robin can’t work, can’t leave the house, and is sleeping the vast majority of the day. The insurer then said, "Well, she’s not experiencing current Suicidal Ideation with persistent impulsivity." The physician responded that she was, in fact, reporting suicidal ideation every day, and was just discharged from the ER the weekend before for impulsively taking too many medications. These symptoms met accepted patient placement criteria used by comparable insurers, but her insurer denied benefits, citing length of stay as the reason and they have not disclosed their medical necessity criteria.

Jane’s story - Discriminatory Use of “Fail First”

"Jane" had been successfully treated for depression in the past, and had a recurrent episode when her hours were cut at work and she began having financial problems. Although she had a history of response to a particular antidepressant, her employer-sponsored health plan had a "fail first" formulary for antidepressants – it would not pay for the drug to which she had previously responded unless she previously had two documented failures on other medications.

As she went through those medication trials, Jane’s depression worsened, her work performance suffered, and she was fired. She did not have the money to continue her insurance through COBRA, nor did she have the funds to pay her rent. After staying with friends and family for several months, and becoming more and more depressed, she made a suicide attempt.

After this, friends and family would no longer take her in, and she became homeless. While staying at a local shelter, she started treatment with a local public treatment center. They assisted her with getting the specific antidepressant she needed through a Patient Assistance Program and she began to improve.

Joe's story – Lack of Disclosure

"Joe's" health plan approved the first 30 days of his treatment stay for his substance use disorder. On January 15th, they denied the second 30 days of treatment because they said it was not medically necessary for him to receive treatment at an inpatient facility. On the advice of his medical advisors and treatment counselors, his parents paid an additional $12,000 to continue his treatment for another 30 days.

The health plan used the American Society of Addiction Medicine (ASAM) criteria for determining levels of care. The patient’s mother received a list of the medical necessity criteria from the plan.

When she requested more information about the criteria used to make benefit determinations, her plan advocate told her that there were no copies of the ASAM manual on site and no additional information was available.

The mother did her own investigation and found the manual on Amazon.com.

Joe's mother said it would have been impossible to win their appeal without the information in the ASAM manual – information that she requested and was not made available to her.

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