January 4, 2017
By Russell Kolsrud and Gregory Moore*
Much has been heard and read about the 21st Century Cures Act since President Obama signed it into law on December 13, 2016. Receiving less attention to date is The Helping Families in Mental Health Crisis Reform Act of 2016, which is contained within the 21st Century Cures Act. Highlighted below are the Mental Health Parity provisions contained therein.
Title XIII of the 21st Century Cures Act (Cures Act) is an attempt to create guidance and measurable standards to identify payer and provider compliance with the Parity coverage requirements enacted through the Mental Health Parity and Addiction Equity Act of 2008 (2008 Parity Act). Quantifiable treatment limitations applicable to mental health or substance use disorder benefits cannot be more restrictive than the limitations applicable to medical/surgical benefits.
The 2008 Parity Act also applies to non-quantifiable treatment limitations (NQTLs) (e.g. medical necessity, prior authorization, fail-first therapy, formulary content). Inconsistent application of standards has prevented health plans from instituting Mental Health and Substance Use Disorder (MH/SUD) NQTLs that are comparable to medical/surgical NQTLs. There has been little guidance on how health plans and providers should determine whether treatment limitations for MH/SUD meet those on the medical side.
On March 29, 2016, President Obama created the Mental Health and Substance Use Disorder Parity Task Force to review parity implementation, examine parity policy changes, and offer recommendations to advance parity implementation and enforcement. The Task Force submitted its Final Report in October 2016 and noted that a key barrier to parity implementation and enforcement is the lack of definition and minimal objective documentation required. Title XIII of the Cures Act is intended to create written guidance for providers, health plans, and insurers.
Does Title XIII Enhance Compliance of the 2008 Parity Act?
The bulk of Title XIII consists of directives to the Assistant Secretary for Mental Health and Substance Use (Secretary) and the Secretaries of Labor and Treasury to consult, engage in meetings, devise a Compliance Program, and publish a guidance document within 12 months of the effective date of the Cures Act. Section 13001 obligates the Secretaries to spend the next 12 months devising a “Compliance Program Guidance Document” (CPGD). The CPGD must include standards and criteria used to determine whether past medical benefits and MH/SUD benefits would be approved or disapproved.
Section 13001 also obligates the Secretaries to issue guidance on the 2008 Parity Act compliance directly to group health plans and health insurance issuers offering group or individual health insurance coverage. However, the substance of the guidance will come from the group health plan and health insurance companies’ past performance. Accordingly, future compliance standards relating to methods, processes, strategies, and evidentiary thresholds do not ensure implementation or compliance with the Parity Act, particularly NQTLs.
Finally, Section 13001 requires the Secretaries to solicit feedback from the public on how disclosure requests for patient records will be handled to ensure compliance with the 2008 Parity Act and the Cures Act, and, at the same time, ensure consumers’ rights to access all information required by federal or state law to be disclosed. After six months of input from the public, the Secretaries will spend the next six months digesting this information and then make it publicly available and share the feedback with the National Association of Insurance Commissioners Inc. (NAIC). The NAIC is expected to create templates and standardized forms to improve consumer access to information.
The last Section, 13001(d), contains a single paragraph addressing failure of parity compliance. In summary, group health plans and health insurance issuers get four free violations. The fifth violation generates an audit of the plan or insurer for the year following the fifth violation. The purpose of the audit is not to sanction the plan or insurer but, instead, to improve the plan’s or insurer’s ability to comply with Parity laws. No other “compliance” provisions were created by the Cures Act.
Section 13002 Action Plan for Enhanced Enforcement of Coverage
The Parity laws do not include enforcement provisions. Instead, the Secretary will convene a meeting of stakeholders for the purpose of producing an action plan to improve federal and state coordination regarding enforcement of Parity laws. The content of the proposed action plan must identify strategic objectives, including a timeline, for various federal and state agencies charged with enforcement of Parity laws to improve intergovernmental collaboration. The action plan must include recommendations for congressional action to acquire the legal authority to improve enforcement, including the authority to ensure that NQTLs are applied in the manner contemplated by the Parity Act and the Cures Act.
Section 13003-13007 Reports and Studies
Sections 13003 and 13004 require departmental reports to congressional committees. Sections 13005 through 13007 address the expanding awareness of eating disorders across the country. Section 13007 is intended to clarify existing Parity Rules stating that group health plans or health insurance issuers that provide coverage for eating disorders must meet all Parity Act requirements.
Summary and Analysis
Title XIII of the Cures Act is a congressional recognition that group plan and health insurance carriers’ compliance with the Parity Act is premised on subjective interpretation of the processes, strategies, evidentiary standards, and other factors when applying the NQTLs. Health plans may have the same NQTLs in both MH/SUD and Medical/Surgical and yet violate the parity requirements by applying NQTLs differently. The Cures Act is a further recognition that Congress is struggling with the requirement that any “processes, strategies, evidentiary standards, or other factors" used in applying the NQTLs to MH/SUD benefits in a classification must be “comparable to" and be applied “no more stringently" than the processes, evidentiary standards, or other factors used in applying the limitation to medical benefits in a classification. As drafted, the Cures Act may be a step forward, but real time progress may take several years.
*We would like to thank Russell A. Kolsrud (Dickinson Wright PLLC, Phoenix, AZ) and Gregory W. Moore (Dickinson Wright PLLC, Troy, MI) for authoring this email alert. We also would like to thank Suzette E. Gordon (Bronx Partners for Healthy Communities, New York, NY) for reviewing this email alert.