Surprised about the delay? No, but employers and plans will need to move forward carefully, doing everything they can to comply reasonably and in “good faith” until we receive clarification.
On October 2nd, HHS Secretary Kathleen Sebelius wrote to House and Senate lawmakers saying that the administration “aims” to issue regulations for the one-year old mental health parity and addictions equity act by January 2010. Having some expert help on her team will prove to be a good start. It was only this week that Pamela Hyde was announced as President Obama’s choice to lead SAMHSA – the only agency with comprehensive knowledge of the mental health and addictions treatment fields. So far, SAMHSA has been silent on the issue of the regulations and the Treasury and Labor departments haven’t met their deadline either. Treasury and Labor are not renowned for their leadership in the behavioral health fields so we shouldn’t be shocked.
Hyde most recently served as Secretary of the New Mexico Human Services Department. She also served as CEO of the non-profit behavioral healthcare organization Comcare. Her 30-year career is exemplary, her passion and enthusiasm are contagious and her ability to think outside the box will be a welcome relief for an agency looking for leadership. That leadership couldn’t come soon enough for Parity. I am a fan of her efforts to “blend” systems in New Mexico. I’m curious to see how that innovation plays itself out.
Unfortunately, the GOP has already warned the American public that they will delay any of Obama’s efforts to appoint people to top posts until the public option is completely off the reform table. The House has resurrected several variations on the public option theme just this week so Pamela Hyde shouldn’t quit her day job yet. Stay tuned…this could get ugly and could go well into the spring of 2010.
With few exceptions, most stakeholders groups are concerned that the total absence of technical guidance and regulations will lead to misinterpretation of the law. How could it be otherwise? I for one have already run across examples of that concern manifesting in ways that will be truly difficult to correct. In some cases, the penalties – were they to be levied (which they won’t till 2011 by virtue of the regulations being late) – would be crippling. At $100 per member per day, the 3-6 months it would take for a plan to correct course would result in ridiculous fines. Who can hold plans accountable for mistakes and non-compliance when there are no rules to enforce in the first place?
What’s at Stake (Really)?
What remains to be seen and understood is quite simply a reflection of the entire scope of the law. Guidance and clarification are needed for the following (among others):
- Qualifying diagnoses and disorders
- Scope of treatment services including levels of care and types of providers
- Clarification of the difference between mental health “Parity” and addiction “Equity”
- Medical management (level of care/medical necessity criteria) standards
- Definition of treatment limitations vis a vis “predominant” medical coverage
- Use “separate but equal” deductibles
While most believe that separate deductibles for medical benefits and behavioral health benefits should be outlawed because they are discriminatory, I can tell you that many plans and their MBHOs are well down the path of having two separate but equal deductibles. Who can blame them in the absence of direction? A single deductible is costly from an implementation standpoint and – for anyone who has ever tried to “accumulate” claims from two different systems – very complicated. It’s human nature to find an easier, simpler way. The same will be true for covered diagnoses. Many plans and employers will opt for the shortest list of biologically-based disorders possible. The impact that has on diagnostic practices in the field is predictable.
The Big Question
We are often asked: “whether or not a plan can establish what they believe to be compliant benefits and coverage and change/correct course mid-year based on regulations finally being available?” While this author is not a lawyer and this shouldn’t be construed as legal advice, the short answer is a qualified “yes” that depends largely upon State-level insurance laws. ERISA plans have their own methods. Medicaid managed care plans have a third approach to changes of that kind. The key to mid-year change is gauging your appetite for internal workflow and business process change, your member and provider relations resources and your budget. Re-tooling your claims processing system, provider network, and member materials is intense and expensive.
Help is on the Way
We will be developing practical resources for employers and plans who desire guidance in direction in the absence of anything from the 3 Federal agencies charged with that task. Look for ideas on this site and call us if you have any questions.