Irv Lichtenwald

Revisiting Mental Health Parity in 2022

February 27, 2022

Behavioral Health 7 Minute Read

In his 1981 inaugural address, Ronald Reagan famously said, “Government is not the solution to our problem, government is the problem.”

Without defining what the ‘problem’ actually is, Reagan’s assertion could be fodder for endless debate and metric tons of posturing and gesticulation.

But what if the problem is actually noncompliance with a law designed to improve healthcare benefits for millions who struggle with mental illness and addiction? That seems pretty specific. What if that noncompliance was almost exclusively created by lack of enforcement—by the nonexistence of any fear of penalty for violation of the law?

What if the only entity that has the power and mandate to enforce a law like this is federal and state governments? What then?

Almost 14 years after passage of the Mental Health Parity and Addiction Equity Act (MHPAEA), perhaps we will finally find out. What the MHPAEA requires is that health insurers treat payment for mental and emotional ailments on a level playing field with physical challenges. The roots of the MHPAEA can be found in the Mental Health Parity Act of 1996, on which complementary legislation, including components of the Affordable Care Act (ACA), has been built.

Over that same timeframe, mental illness and addiction have only become more intractable problems in American society, suggesting that MHPAEA either doesn’t work or has no teeth.

“More than 70,000 Americans died of overdoses in 2017, yet insurers spent only 1 percent of their total health care dollars on treatment for substance use disorders — a decrease from two years earlier,” writes Patrick Kennedy, a former congressman and the founder of the Kennedy Forum, an organization pushing for improved treatment of mental illness and addiction by the healthcare system.

Kennedy’s data comes from a comprehensive report compiled by the independent actuarial firm Milliman, which evaluated health insurer claims from 2013 through 2017 to determine how frequently out-of-network care occurs for behavioral health versus physical health.

What Milliman found will come as no surprise to anyone who has had to navigate the mental health care system. The networks of mental health care providers affiliated with individual insurance plans are woefully inadequate, leaving most people requiring care with no choice but to find any available care provider. For those patients fortunate enough to locate a mental health care provider in network, wait times are usually so long as to put the patient’s life in grave danger.

“Nationwide, patients receiving treatment for addiction were more than 10 times more likely to use out-of-network facilities than patients were to use out-of-network medical or surgical facilities,” Kennedy says. “And out-of-network behavioral health facilities were five times more likely to be used than out-of-network medical or surgical facilities — an increase of 85 percent over five years.”

Investigations within the same timeframe by the New York State attorney general and the Pennsylvania Insurance Department found that insurers limited treatment options for addiction and mental health claims or were at least twice as likely to deny claims entirely for mental health or addiction treatment when compared with physical health claims.

And all of this has occurred during an unprecedented deterioration in quality of life for many of our friends and neighbors. Last year marked the first time in American history that more than 100,000 deaths were recorded for any twelve-month period, and it was also the culmination of a multi-year period in which average life expectancy in the United States has continued to decline, with mental illness, addiction, and “diseases of despair” the primary culprits.

“There is a lack of oversight and efforts to make sure that health plans are compliant with not only the letter of the law, but the spirit of law,” said Angela Kimball, national director of advocacy and public policy for the National Alliance on Mental Illness.

In fact, government fired a few shots across the bow of insurers before the pandemic started. Cases from 2019 and 2020 were decided in favor of plaintiffs as both insurers and providers were found to have violated both the letter and spirit of the MHPAEA.

So, would the MHPAEA make an actual dent in the widely documented and dispiriting measures of American wellness? Recent government efforts suggest it may, we probably can’t know without trying a lot more to reform the system, and there may never be a better time than now.

Why? Because the big insurance companies are awash in cash thanks to the pandemic.

In the second quarter of 2020 alone, CVS, which owns the insurer Aetna, reported $1 billion more in net income than it had for the same period in the previous year. Other insurers reported similar windfalls.

“This could tilt the politics against insurers on a whole number of fronts,” Larry Levitt of the Kaiser Family Foundation told the New York Times.

If what Levitt suggests is in the offing, providers can prepare to work more effectively with insurers by implementing necessary health IT, which includes but certainly is not limited to electronic health records. As most health insurers develop and implement automated prior-authorization tools, behavioral health will benefit by preparing to electronically send required patient and care plan data as state and federal agencies exert more pressure on the insurance industry.

To be clear, just a bit of concerted pressure is probably all that’s needed to get the ball rolling. Federal legislation requires that insurance companies spend 80 cents of every dollar they take in on the provision of care for their members. Any excess has to be returned to policy holders, but insurance companies have three years in which to extend the returns to guard against market fluctuations and miscalculations.

Arguably, that makes now a good time to suggest insurers live up to both the spirit and the letter of the MHPAEA. Very recent activity suggests the federal government might be seizing the opportunity.

A report issued last week on mental health parity legislation compliance by the Departments of Labor, the Treasury, and Health and Human Services suggests the government thinks insurers are failing in their legal obligations and that greater enforcement is warranted.

“The report’s findings clearly indicate that health plans and insurance companies are falling short of providing parity in mental health and substance-use disorder benefits, at a time when those benefits are needed like never before,” said U.S. Secretary of Labor Marty Walsh in a statement. “The pandemic is having a negative impact on the mental health of people in the U.S. and driving a rise in substance use. As a person in recovery, I know firsthand how important access to mental health and substance-use disorder treatment is. Enforcement of this law is a top priority for the Department of Labor and an objective I take personally.”

Perhaps Secretary Walsh taking parity enforcement personally will make a real difference in outcomes, and perhaps it won’t. If declining life expectancy, hundreds of thousands of overdose deaths, and record profits for insurance companies don’t combine to gin up some broader outrage, it’s hard to imagine the anger of one man doing the trick.

It is, however, impossible to imagine the behavior of insurers changing if government, the only sheriff in town, fails to enforce the MHPAEA. With the pandemic as chaos agent, and to paraphrase a well-used axiom, it would be a shame to let this perfectly good crisis go to waste.

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