Equal mental health insurance coverage elusive despite legal guarantee – The Washington Post

The insurance industry says it should not be held responsible for the inadequacy of the U.S. mental health system, which long has lacked sufficient numbers of providers to meet the public need, something the pandemic laid bare.

It is difficult to determine the number of people who did not receive services due to inadequate behavioral health coverage — which encompasses mental health and substance abuse — but there is little question the total is considerable.

In a January report to Congress, the Labor Department, which enforces the terms of 2 million workplace plans, said that during fiscal 2021, it had recouped $20,000 for a family that was shortchanged for coverage of a child’s autism. It also said it had required parity from two plans covering 1.2 million people that paid for nutritional counseling for medical conditions such as diabetes but did not cover it for mental health problems such as eating disorders.

Examples such as those barely scratch the surface of the parity problem. When the consulting firm Milliman looked at the issue for a 2019 report, it found that consumers were more than five times as likely to have to use out-of-network providers for inpatient, outpatient and office behavioral care than for analogous medical services. Reimbursement for primary medical care was 23.8 percent higher than for behavioral care, Milliman found in data for 2013 to 2017.

“Not every problem with behavioral health is a mental health parity violation,” said Pamela Greenberg, president and chief executive of the Association for Behavioral Health and Wellness, which represents insurer interests in mental health. “And that’s where we have gone with mental health. … We expect every problem to be solved through the mental health parity lens. The workforce shortage is one of them.”

Some investigations can last years. The Labor Department, which oversees most workplace health coverage, closed just 74 parity investigations in fiscal 2021, finding violations in 12. The Centers for Medicare and Medicaid Services completed four investigations, finding one violation. The Labor Department also has never used its authority to refer noncompliant plans to the IRS for imposition of an excise tax of $100 per individual per day. It has sued a big insurer only once, joining New York’s attorney general in securing a $15.6 million settlement with United in August.

The Labor Department alleged that United systematically reimbursed for out-of-network mental health services more restrictively than it did for medical or surgical care, among other accusations. The company admitted no wrongdoing in the settlement.

Khawar said that under the law, the excise tax would be imposed on employers, not the insurance plans and benefit administrators that are typically responsible for violations. That makes the department more reluctant to use that penalty.

The Labor Department’s Employee Benefits Security Administration has spent years explaining the regulations to insurance companies, helping them move forward and cajoling them into compliance, to maximize benefits to consumers, he said. In some cases, it used the threat of the excise tax or a lawsuit, he added.

In 2021, Congress gave the agency new power to require companies to submit written comparisons of their medical and mental health coverage. None of the 156 analyses requested by the Labor Department or the 15 requested by CMS was sufficient when first submitted, according to the agencies’ January report to Congress.

Deepti Loharikar, senior director of regulatory affairs at the Association for Behavioral Health and Wellness, said compliance would be easier “if our members knew exactly what regulators were looking for. It’s unclear what [they are] looking for.”

Under President Biden, enforcement of mental health parity has become a top priority for the Labor Department, which is adding enforcement staff and has asked Congress for the power to impose civil monetary penalties on noncompliant insurers. The House already has approved that authority in the stalled Build Back Better legislation, and two Senate committees are looking at how to beef up enforcement in mental health bills working their way through the chamber.

There is general agreement that over the years, insurers have improved parity in the provision of “quantitative treatment limitations” — rules that govern, for example, the number of visits a patient is entitled to, or the size of a deductible.

“The two most significant barriers to care erected by the industry are medical necessity and network inadequacy,” said Meiram Bendat, founder of the law firm Psych-Appeal and one of DeeDee Tillitt’s lawyers in a class-action lawsuit that advocates consider a landmark case for mental health parity.

Tillitt, for example, argued in legal filings that United relied on guidelines for covering her son’s care that were more restrictive than commonly accepted standards for substance abuse and mental health treatment. The lawsuit seeks to define standards insurance companies must follow.

United said in a statement: “We are committed to ensuring all our members have access to care and to reimbursing providers consistent with the terms of the member’s health plan and state and federal rules. Over the last several years, we have taken concrete steps to improve access to quality care” by adding providers and via telehealth platforms, among other steps, the company said.

Max Tillitt was a healthy, athletic teen until a violent helmet-to-helmet collision in a football practice left him with a concussion and continued neck and back pain, according to his mother and her court filing.

He spiraled into addiction that began with his pain medication, relapsing “seven or eight times” before he landed at Beauterre, DeeDee Tillitt’s lawyers wrote. His longest stretch of sobriety in more than five years lasted seven weeks, according to the lawsuit. He twice tried to kill himself by overdosing, according to the court papers.

In a letter denying Max Tillitt further care at Beauterre, provided by his mother, a United official wrote: “You have been able to get off drugs. You have made progress in the program. You do not have extreme health or emotional problems, including from coming off drugs. You do not need 24-hour nursing care. Your care could go on in a less restrictive setting, such as outpatient.”

After Beauterre appealed, United followed up with a letter four days later that listed other progress Tillitt had made. “You have been able to move towards recovery by identifying triggers or issues that often lead to substance usage,” it said. “Your mood and sleep have seemed to improve as well,” it added. United acknowledged that he needed more treatment, but not in a residential setting.

Max Tillitt was discharged without a treatment plan, according to court papers and his mother. It took two weeks to get him into an outpatient program. DeeDee Tillitt recruited friends and family to keep watch over her son 24 hours a day, every day, until arrangements could be made, she said.

But her son did not fare well and died 10 weeks later, in September 2015. “If he had been allowed to stay in Beauterre, I believe he would still be alive,” Tillitt said. “If he was in there for a heart attack, they’d never say, ‘We’re going to send you home now, even though you might have another heart attack.’”

Though the class-action lawsuit was brought in a California federal court under the Employee Retirement Income Security Act, advocates consider David Wit et al v. United al Health a milestone in the enforcement of mental health parity.

In his 2019 ruling, federal Chief Magistrate Judge Joseph C. Spero wrote that “internal UBH communications … make it crystal clear that the primary focus of the guideline development process … was the implementation of a ‘utilization management’ model that keeps benefit expenses down by placing a heavy emphasis on crisis stabilization and an insufficient emphasis on the effective treatment of co-occurring and chronic conditions.”