At a time when the nation is facing a mental health crisis, health insurers have sharply criticized the Administration’s proposed mental health parity rules issued under the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (“the MHPAEA”). Unfortunately, these criticisms represent an additional effort by health insurers to pad their bottom lines while ignoring what is best for health care in America.  In contrast, provider groups have strongly supported the proposed rules.

The proposed rules were designed to ensure that health insurance plans comply with the MHPAEA’s requirement that health plans provide benefits for mental health and substance use disorder care on parity with benefits for medical and surgical care. The Administration was prompted to issue the proposed rules in part because a recent Department of Labor review found that every health plan it reviewed had failed to implement the MHPAEA’s parity requirements.

Under the MHPAEA, health plans cannot limit access to mental health or substance use disorder benefits by placing limitations on coverage, such as pre-authorization requirements or step therapy, that are not required to access coverage for medical and surgical benefits,  The proposed rules require, intra alia, that health plans collect and evaluate outcomes data and that they conduct meaningful comparative analyses measuring the impact of coverage limitations,  In addition, the proposed rules establish requirements for network composition.

In comments submitted on October 17, 2023 criticizing the proposed rules, America’s Health Insurance Plans (“AHIP”) stated: “The proposed regulations have significant legal, policy, and operational flaws and should not be finalized.” Likewise, the Blue Cross & Blue Shield Association submitted comments criticizing the proposed rules, stating that they “could push us in the wrong direction.”  The payers oppose implementation of the proposed rules even though the rules would provide for increased treatment for mental health problems, including addiction issues.

Providers, on the other hand, strongly support the proposed rules.  Comments submitted on October 13, 2023 by the American Hospital Association stated:

The AHA applauds the Administration for proposing these clear and specific provisions to improve oversight and enforcement of the MHPAEA.  While the law has stood in place since 2008, its enforcement has been challenged by the difficulty in defining and identifying instances of noncompliance in coverage of mental health and substance abuse disorder (SUD) services as well as the efforts of some health plan issuers to avoid covering this vital and lifesaving care. (emphasis in the original.)

 Similarly, in a press release, Jesse M. Ehrenfeld, MD, MPH, President of the American Medical Association stated:

The American Medical Association (AMA) strongly supports the Biden administration’s commitment to addressing insurers’ continued failures to comply with the…MHPAEA.  For more than 15 years, the combined lack of enforcement and compliance with MHPAEA has been a significant factor driving the nation’s mental health crisis and substance abuse disorder epidemic, which have both been exacerbated by the pandemic. Insurers’ egregious violations of MHPAEA contribute to growing inequalities in mental health and substance use disorder, which often falls disproportionately to historically minoritized communities.

The attorneys at Whatley Kallas, LLP will continue to follow the proposed rules as they are finalized.

AHIP’s comment letter is linked here and the AHA’s comment letter is linked here. The AMA press release is linked here. Whatley Kallas’s earlier article about the proposed rules is linked here and our earlier article on the government report showing that health insurers were failing to comply with parity requirements is linked here.

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