To download a comprehensive, 25-page, detailed analysis from AHP on the recently issued MHPAEA Regulations as a PDF, click here.
On Friday, January 29th, the three Federal departments charged with the promulgation of the Mental Health Parity and Addiction Equity Act (MHPAEA), released their Interim Final Rule, also referred to as “the regulations”. The MHPAEA was enacted in 2008 to help ensure equitable coverage of mental health and substance use disorders. It represents more than a decade of close work and negotiation between civil rights and patient advocates, the mental health and substance use disorder treatment communities, the recovery community, the medical community, business, commerce, and health insurance stakeholders.
Both because of the importance of this law and the implementation deadlines it imposed, the wait for regulations has felt long indeed. Other commentators have already noted there is much to celebrate with the release of the Interim Final Rule; unfortunately, the content also leaves much to be desired. On a high—note, the regulations begin to deliver on the promise of this important law. While regulators were clearly responsive to stakeholder comments and concerns gathered over the past months, significant questions and issues remain unaddressed. Ambiguity in the areas of scope of services, financial implications and medical management may hinder the success of parity as intended by the Congressional sponsors of the MHPAEA, and expose both Payers and providers to a variety of risks. Acknowledging that further clarification may be required, the Departments have invited comments to help inform the final regulations. It is critical that all stakeholders take advantage of the invitation between now and May 3. Now is the time to make remaining concerns known to regulators in the hope that the final rule may provide the clarification necessary to mitigate risks to all stakeholders and secure the very best conditions for plan members, patients and their families.
To assist plans, payers and providers in determining next steps, AHP will release a preliminary but comprehensive analysis of the Interim Final Rule on Monday, February 8. Until then, here are the Top 10 impacts or highlights of the Interim Final Rule. The next post will explore what the regulations in their current form do not do.
Much to the satisfaction and frustration of people and organizations who submitted comments earlier in 2009, the regulations have answered the following key concerns:
1. Single Deductible – The regulations prohibit separate cost-sharing requirements or treatment limitations that apply only to SUD or MH benefits thereby eliminating the practice of separate but equal deductibles creating the conditions for a single deductible.
2. No Scope of Services Defined – The regulations do not define a scope of services or continuum of care for SUD or MH benefits; the regulations state that group health plans can define which services are covered in MH and SUD benefit packages; those definitions must be consistent with “generally recognized independent standards of current medical practice” which include the Diagnostic and Statistical Manual of Mental Disorders, the International Classification of Diseases, and State guidelines.
3. No More EAP Gatekeeper – The regulations prohibit the EAP gatekeeper function on the basis that it is more stringent than any corresponding medical managemnt function for medical benefits.
4. “Predominant” and “Substantially All” Defined – The rule defines the terms “predominant” and “substantially all” and gives guidance about how to determine whether financial requirements and treatment limitations imposed on SUD or MH benefits comply with the MHPAEA.
The rule states that when a financial requirement or quantitative treatment limitation on a medical/surgical benefit applies to at least two-thirds of the benefits in that classification, this is considered to be “substantially all” of those benefits.
A predominant level (amount) of a type of financial requirement or quantitative treatment limitation is defined as the level that applies to more than one-half of the medical/surgical benefits subject to the financial requirement or quantitative treatment limitation in that classification
5. Classifications of Benefits – The rule first identifies six categories of classification of benefits. These six classifications are:
- Inpatient, in-network
- Inpatient, out-of-network
- Outpatient, in-network
- Outpatient, out-of-network
- Emergency care
- Prescription drugs
6. Non-Quantitative Restrictions and Limitations – The regulations include a non-exhaustive list of types of non-quantitative treatment limitations that includes:
- Medical management standards
- Prescription drug formulary design
- Fail-first policies/step therapy protocols
- Standards for provider admission to participate in a network
- Determination of usual, customary and reasonable amounts
- Conditioning benefits on completion of a course of treatment
The regulations state that the processes, strategies, evidentiary standards and other factors used to apply non-quantitative treatment limitations to SUD or MH benefits in a classification have to be comparable to and applied no more stringently than the processes, strategies, evidentiary standards and other factors used to apply to medical/surgical benefits in the same classification. The regulations acknowledge that there may be different clinical standards used in making these determinations.
7. Co-Pays – The preamble to the rule acknowledges that some group health plans have lower co-payments for primary care providers than for specialists and that often SUD and MH providers are defined as specialists; the guidance makes clear that there cannot be a separate classification of generalists and specialists in determining whether certain financial requirements or treatment limitations meet the MHPAEA parity requirements.
8. Single Plan – The guidance prohibits insurers from setting up separate plans or benefit packages to try to avoid complying with the MHPAEA requirements; the guidance states that separately administered benefit packages should be considered as a single plan subject to the law and regulations
9. Prescription Drug Formulary Design – To determine whether a group health plan/issuer is imposing unfair financial requirements on certain drugs prescribed for SUD or MH conditions, the regulations state that financial requirements imposed on drugs prescribed for the treatment of an SUD or MH condition must be compared with those imposed on other prescription drugs in the same formulary tier in which the prescription drug is classified
10. Medicaid Guidance – The regulations acknowledge that Medicaid managed care plans offering SUD or MH services must comply with the MHPAEA but state that these regulations do not apply to those plans and that additional guidance will be given by the Centers for Medicare and Medicaid Services (CMS)
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