This article is the first in a two-part series examining the challenges in achieving true parity for mental health benefits. This article explores the history of mental health parity legislation, while the second installment - scheduled for EBN June 1 - will address barriers to care due to lack of access and provider shortages.

The fight for adequate access to mental health care has been a long one, and arguably the first legislation to help it along was the 1996 Mental Health Parity Act, which required no lifetime or annual dollar limits for mental health benefits that were lower than those for medical benefits. But there was a catch: Insurers were able to impose maximum numbers on provider visits or the number of days they would cover for inpatient hospitalizations.

More than a decade later, the Mental Health Parity and Addiction Equity Act of 2008 was passed, which took several steps forward - not only outlawing the dollar limits, but also mandating that financial requirements like copays, deductibles and treatment limitations (such as visit limits) are no more restrictive than those applied to medical/surgical benefits.

MHPAEA became effective Oct. 3, 2009, and in the three-and-a-half years since, there is still much work to be done on both clarifying and enforcing the law. Some have likened it to the Civil Rights Act of 1964, in that both laws have taken years to make true inroads and achieve incremental change.

Although employers have significant purchasing power to use as leverage in bringing about real parity more quickly, the stigma attached to mental illness may prevent employers from seeing the true impact and cost of the problem. Studies have found that less than one-fourth of people suffering from a psychological disorder will seek help from a mental health professional. Even for employees who take the bold step of seeking mental health care and find their benefits plan lacking, how likely is it that they will bring their concerns to the HR/benefits department?

"Because there is still a stigma to getting mental health care, it's harder for [employers] to determine whether [employees are] actually utilizing [benefits] and what really [constitutes] quality care," according to Allan Nessman, senior special counsel of legal and regulatory affairs at the American Psychological Association. "Although it's a small proportion of health costs, [employers have] been cutting expenditures on mental health care because patients are reluctant to complain. You can cut there and you don't get as much pushback from employees."

Approximately one in three Americans experience a mental health disorder in any given year, which translates to more than 75 million individuals, according to a study in the Archive of General Psychiatry. So, the chances are good that there are employees in each workplace suffering from depression, anxiety and a gamut of other mental illnesses.

"It's historically a problem with mental health; it's discriminated against, and insurers have gotten away with it," says Sam Muszynski, director of the health care systems and financing department at the American Psychiatric Association. "These battles are being fought under the parity law, but just because we passed it doesn't mean insurers aren't going to do what they're going to do until they're forced to change."

In January 2010, Interim Final Rules were issued by the Departments of Health and Human Services and Labor governing how MHPAEA should be executed, but final regulations have yet to be published.

The Parity Implementation Coalition was formed to work toward just that. Last month, co-sponsors former Rep. Patrick Kennedy (D-R.I.) and former Rep. Jim Ramstad (R-Minn.) publicly called for greater enforcement. "We need to make the promise of it a reality and ensure enforcement," Ramstad said. MHPAEA was included under the Patient Protection and Affordable Care Act and the future of mental health parity is threatened if PPACA is overturned, either through a Supreme Court ruling or repeal following this year's election.

Even before MHPAEA was approved, 42 states already had passed parity laws, regulated by state insurance commissioners. Now, such laws have several enforcers, contributing to enforcement difficulties. For fully insured plans, it's the state commissioner's job to enforce, with a backup from HHS. If it's a self-insured ERISA plan, enforcement is provided by DOL. For church-sponsored plans, the Internal Revenue Service has authority.


Parity varies state to state

To date, none of the national enforcement agencies have publicly fined or named any insurance company for these practices that violate MHPAEA, yet there is a movement to move implementation along. According to Ramstad, parity varies greatly from state to state and, "some are still not able to access treatment because [insurance companies and lawmakers] are working overtime to defeat or kill the parity law. They're the ones that haven't seen the data that shows treatment is cost effective." Studies have shown that for every dollar spent on mental health, $12 is saved in lost productivity and further health costs.

Ramstad says the lack of enforcement and delay in final rules may be attributed to "pressure from opponents. It's inexcusable that it hasn't been more rigorously enforced."

Despite the implementation and enforcement struggles, MHPAEA has been a help to those Americans at the more severe end of the mental illness spectrum, who previously were denied coverage because of the limits on the number of inpatient visits. Also, MHPAEA extends coverage to both in- and out-of-network, allowances that weren't included in the original act.

"It's easier to bring about immediate compliance if you're imposing the same 30-day limit on inpatient psych that you're imposing on surgical," says Andrew Sperling, director of federal legislative advocacy for the National Alliance on Mental Illness. The more vague rules under "non-quantitative treatment limits" are harder to enforce, but Sperling thinks those will eventually be helped as well, like limited provider networks and utilization management. "What they need is better enforcement of interim final rules."


Making progress

Health plans and employers are able to opt out of MHPAEA if they show that it raised costs overall for two consecutive years, 2% in the first, and 1% in the second. To date, there have been no requests to opt out - something mental health experts see as progress.

"We have to start treating diseases of the brain like diseases as the body, which is the bottom line," Ramstad says. "The whole objective is to get [a] final rule that ends discrimination of people with diseases of mental illness and substance abuse."

The transparency that better enforcement could add could mean a better marketplace for benefits managers to choose from, says Nessman. If no one is complaining, and the insurance companies that aren't complying aren't made public, how are the right decisions to be made?

"[Employers] might be choosing coverage based on a glossy brochure and might not have a sense of what their employees are really getting in terms of mental health coverage," he says.

The next story will examine how employers can work with health plans to create effective provider networks to improve access to mental health care. Look for it in EBN June 1.

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