Tell federal agencies your parity concerns

APA Practice Organization recommends changes to final parity rule to improve enforcement.

By Legal & Regulatory Affairs staff

April 25, 2013–The Obama Administration has advised parity stakeholder groups that it intends to issue a final rule on mental health parity by the end of 2013. This regulation would replace the Interim Final Rule (IFR) on parity that became effective for most health insurance plans in January 2011.

The APA Practice Organization (APAPO) is advocating for a more enforceable final parity rule, but we need your help. Send any concerns or complaints about insurance companies’ parity compliance to federal regulators (see below).

APA Practice Organization letter on Final Parity Rule

On April 24, the APAPO sent a letter (PDF, 97KB) to the two main federal parity enforcement agencies, the Department of Health and Human Services (HHS) and the Department of Labor (Labor). The letter thanks the Administration for moving forward toward a final parity rule. The letter also urges several changes in the final rule to make it more enforceable. 

A key problem with the IFR is that it assumes federal parity agencies and state insurance commissioners have ample resources to investigate the often complex comparison between mental health and medical/surgical care to determine if plans are improperly discriminating against mental health patients. However, implementation of the Affordable Care Act (ACA) has overtaxed many of these same agencies with developing and regulating state health insurance exchanges, and resources are limited.

The APAPO letter cites our primary parity enforcement campaign – fighting big rate cuts targeting psychologists – as “Exhibit A” of why parity enforcement is not working as it should. APAPO, in collaboration with a dozen state associations, has six parity/rate cut complaints pending with federal and state agencies – starting with the Blue Cross Blue Shield of Florida (BCBS FL) complaint (PFD, 140KB) in October 2011. Yet the federal and state agencies have not concluded a single investigation or taken any enforcement actions.

Accordingly, APAPO’s letter suggests several changes for the final parity rule to speed enforcement, and clarify and strengthen protections, such as:

  1. Place a two-month limit on the time that state insurance commissioners have to consider a complaint before HHS steps in. 

  2. Specify basic information that companies must provide to parity stakeholder organizations like APAPO to assess parity compliance if the organization has made a legitimate parity complaint and the relevant agency is not able to promptly conclude its investigation. 

  3. Reinforce that comparable provider reimbursement is a requirement of parity – companies can’t eviscerate mental health care by paying psychologists so little that they can’t afford to stay in the network to serve patients; and clarify what parity in reimbursement means, including with respect to how insurers are implementing the new psychotherapy codes.

  4. Clarify that companies must make available to patients and providers all medical necessity criteria, not just those the company relied upon to deny care.

  5. Clarify that companies can’t apply authorization requirements (and similar management) to a greater share of mental health services than medical services. 

Call to action: Send your parity complaints and concerns to the federal parity agencies

HHS and Labor need to hear your stories about how parity issues are affecting patient access to needed psychological services. Regulators claim to have received few parity complaints, though APAPO has received hundreds of calls and emails about these issues. The federal agencies will not strengthen enforcement in the final rule if they believe mental health providers and patients are satisfied with how the current rule is working. 

Email your parity complaints and concerns to HHS and Labor at the addresses below. Provide a brief description of the problem (see list of common complaints below). Identify the insurance company at issue and where you are located. Focus on how the problem affects your patients – parity is about preventing discrimination against mental health patients and services. 

A simple, personalized email is most effective, but a template letter (DOC, 33KB) is available for use as well.

Legal and regulatory affairs staff at APAPO is particularly interested in egregious cases of patient harm (such as necessary and effective care being denied to a patient with a serious condition). These examples can support our agency advocacy and potential litigation. Please forward a copy of any complaints of this nature to Legal & Regulatory Affairs staff with “Egregious Parity Complaint” in the subject line so we can separate those responses from other inquiries.

Please email complaints and concerns to all three of the following: 

  • Amy Turner 

  • Elena Lynett 

  • James Mayhew

Consider sending a copy of your email to your U.S. Senators and Representatives, especially if they are parity or mental health champions. 

List of common parity complaints/problems:

  • Reimbursement rates. Provider reimbursement rates are too low compared to reimbursement rates for medical providers or have been cut, causing mental health professionals to leave the network. This curtails patient access to care or forces patients to pay more for out-of-network care if they have that option.

  • New psychotherapy codes. Insurance company is using the new CPT® codes to limit mental health services, or are simply refusing to reimburse for new CPT codes that compensate for extra care given.

  • Inaction on parity complaints. State and federal agencies have not acted on parity complaints brought by you, APAPO and/or your state association.

  • Constraints on mental health care. Company is limiting coverage for necessary care, such as outpatient therapy or testing/assessment, but medical/surgical care is not being similarly limited.

  • Company managing mental health care more than medical care. Company has imposed pre-authorization, medical necessity review or other management on mental health care that appears to be more aggressive than what is imposed on medical care.

  • Copay for mental health is higher than for most medical/surgical services. 

  • Failure to provide medical necessity criteria. Company has failed or refused to provide provider or patient with relevant medical necessity criteria for mental health. Some companies will only provide the criteria on which they relied to deny care. We believe that the IFR requires the company to make all relevant criteria available.

  • Refusal to help you assess company’s parity compliance. Company refuses to tell you or your patient how its handling of medical/surgical services is at parity with its restrictions on mental health care, or they refer you to unhelpful sources of information, such as extensive portions of a website.

  • The federal parity agencies have not explained parity in a way that you and/or your patients can readily understand. You are unable to determine if your patient’s parity rights have been violated because the government has not provided clear and simple guidance about this complicated rule.

Note: Please make sure that the plan that appears to be violating parity does not fall into one of the major exceptions to parity such as: insurance provided by a small employer (less than 50 employees); state employee plan that has opted out of parity; or insurance that is not provided through an employer such as insurance issued to individuals or students.

Disclaimer: Legal issues are complex and highly fact specific and require legal expertise that cannot be provided by any single article. In addition, laws change over time and vary by jurisdiction. The information in this article does not constitute legal advice and should not be used as a substitute for obtaining personal legal advice and consultation prior to making decisions regarding individual circumstances.
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