MHW: Advocates Hail Parity Provisions in Final EHB Rule; Med Access, Habilitation Concerns Linger

MH Advocates Encouraged by Parity in Final EHB Rule; Concerns Linger

Mental Health Weekly March 4, 2013 (subscribe at

Mental health advocates say they are pleased about the inclusion of parity in the final rule on essential health benefits (EHBs) that was released by the U.S. Department of Health and Human Services (HHS), but they noted that some areas could have been strengthened, including that EHB benchmark plans be required to adopt the full range of psychiatric medications for consumers with mental illness.

HHS issued its final rules Feb. 20 outlining standards related to coverage of EHBs under the Affordable Care Act (ACA). HHS noted that it had received 5,798 public comments on EHB proposals. The release of the rule coincided with HHS’s Office of the Assistant Secretary for Planning and Evaluation’s (ASPE’s) new research brief noting that the ACA will expand mental health and substance use disorder benefits and parity protections for 62 million Americans (see MHW, Feb. 25).

According to the ACA, all new health insurance plans offered in the small-group and individual markets are required to offer a package of EHBs, including mental health and substance use disorder services at parity beginning Jan. 1, 2014.

According to the final rule, under the ACA, EHBs must include items and services in 10 broad categories:

(1) ambulatory patient services;

(2) emergency services;

(3) hospitalization;

(4) maternity and newborn care;

(5) mental health and substance use disorder services, including behavioral health treatment;

(6) prescription drugs;

(7) rehabilitative and habilitative services and devices;

(8) laboratory services;

(9) preventive and wellness services and chronic disease management;

and (10) pediatric services, including oral and vision care.

When the proposed rules were released by HHS last November, concerns from the field ranged from the definition of habilitation to more guidance in the final rule as to how nondiscrimination will be defined (see MHW, Dec. 2, 2012).

Mental health advocates had recommended that HHS adopt the Medicare Part D approach to prescription drug coverage in the EHB benchmark. Medicare Part D requires coverage of all FDA-approved psychiatric medications for consumers with serious mental illness, such as antidepressants, antipsychotics and anticonvulsants.

HHS indicated in its proposed rule that the health plans would be required to cover only one drug in each therapeutic class or in the state-selected benchmark plan, said Andrew Sperling, director of federal legislative advocacy at the National Alliance on Mental Illness (NAMI).

To date, 26 states have adopted the benchmark plan, he said. Advocates made no progress in asking for more expansive coverage with clarity about the required drug formula on the preferred drug list, Sperling told MHW. HHS did not adopt the Medicare Part D rule, he said. “What happens if the prescription drug [for the population with mental illness] is not on the drug list?” he asked.

Sperling said that guidance is expected from HHS on an appeals process for consumers to get an off formulary drug, but a date has not been determined for that yet.

In its final rule, HHS proposed that if a state did not make a benchmark plan selection, the default base-benchmark plan would be the largest plan by enrollment in the largest product by enrollment in the state’s small-group market. Many state benchmark plans are being adopted and brought over to the smallgroup market, said Sperling. “We’re still examining state benchmarks to see where the gaps are,” he said. “We still have some work to do.”

Parity Language

“The good news is that HHS has maintained language stressing adherence to the parity law to all plans,” said Sperling. “We’ve earned a victory clarifying the [parity] language in the ACA.” Small-group plans (with fewer than 50 employees) and individual markets were exempt from offering parity under the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008.

The final EHB regulations “obliterated” that mandate, he said. “That’s a positive step,” said Sperling. Overall, there had not been much of a change between the notice of the proposed rule in November and the final rule, he said. “There was not a lot of opportunity to make big changes,” Sperling added.

“For far too long we have had a two-tiered insurance system with those who had brain disorders getting less coverage than those who had heart disease,” Mark Covall, president and CEO of the National Association for Psychiatric Health Systems, said in a statement. “Finally, this practice is coming to an end.

Behavioral healthcare is essential to overall health, and this final rule clearly states that mental and addictive disorders should be treated the same as all other disorders. “ Covall added, “This is a gamechanger for people living with mental and addictive disorders, but unless these provisions are implemented carefully and with appropriate oversight, these gains will not be fully achieved.”

“We’re very excited about how clearly HHS articulated that parity [coverage] be applied to all plans sold on the health insurance exchange,” Rebecca Farley, director of policy and advocacy at the National Council for Community Behavioral Healthcare, told MHW.

Still, a lot depends on the final parity regulations, which have yet to be implemented, she said. The National Council had hoped one area of parity could have been strengthened in the final EHB rule. “We had urged HHS to promulgate a detailed process by which states should supplement their base-benchmark plans should the plans not be in compliance with parity,” said Farley.

“We recommended that this guidance should clarify that parity applies separately to both mental health and substance abuse benefits, meaning that plans cannot meet the parity requirements if they offer only mental health or only substance abuse coverage,” she said. This recommendation was not included in the final rule, Farley said.

Discrimination Concerns

The ACA requires that the EHB be designed in a way that does not discriminate against individuals, said Farley. “While we appreciate HHS’ recognition that the EHB benchmark plan must not include benefit designs that discriminate on the basis of an individual’s medical condition, additional federal standards are necessary to prevent discriminatory benefit design or practices.” Farley added, “Given the history of, and unfortunately often, the current practice of discriminatory insurance coverage for individuals with mental health and substance use conditions, we are concerned that the proposed rule appears to leave it entirely up to states to monitor and identify discriminatory benefit design and implementation.”

The rule did not include any guidance to states as to when they should find a plan to be in violation of the nondiscrimination provision, said Farley. It also fails to establish a process to bring discriminatory benefit design into compliance with the law, she added.

The ACA’s balance and nondiscrimination requirements suggest that a much stronger minimum set of benefits in each category would be required - yet, there is no guidance within the rule about whether there is a minimum standard of coverage within each category. There is no guidance on how to supplement benefits should existing coverage be inadequate, said Farley.

“The final rule didn’t include a lot of changes; in that sense, we were very disappointed,” she said. HHS wanted to preserve state flexibility, noting that state entities are in the best position to make decisions about its own population, Farley said. “They refrained from stepping in and taking a more prescriptive stance in the final rule,” she said.

Habilitative Benefits

Advocates had also wanted HHS to define habilitative benefits, said Farley. The final rule allows states to determine how they will define habilitative services if their base-benchmark plan does not include already coverage for habilitative services, she said. This means that there could be wide variation in coverage of habilitative services from state to state.

“The National Council is deeply disappointed that HHS opted not to establish a minimum federal definition of what constitutes habilitative benefits,” Farley said. There are still a number of unanswered questions, she said. The National Council will continue to monitor the final rules regarding EHBs, Farley said. HHS officials said they plan to continue evaluating EHBs and that they could potentially make more revisions in the future, Farley said.


Mental Health Minimum Benefits Bolstered

Psychiatrists Are Encouraged By The Affordable Care Act’s Final Coverage Standards, But Doctors Say Gaps Remain On Drugs And Children’s Coverage.

ByJennifer Lubell,American Medical News March 4, 2013.

WashingtonDoctors navigating their way through the Affordable Care Act’s final minimum coverage requirements for 2014 face a complex environment in which more people are obtaining access to mental health care and other services, but doing so through benefits that can vary significantly by insurer and by state.

On Feb. 20, the Dept. of Health and Human Services issued a final rule mandating a core package of 10 “essential health benefits” categories that qualified plans on health insurance exchanges — and some plans outside of those marketplaces — will need to cover. Each state has been asked to choose a benchmark plan from a selection of popular existing plans to determine more precisely what benefits must be covered under the categories.

Although the affected plans now have a benefits floor that will ensure more uniformity, plans will retain some flexibility, not only in benefits design but also in cost sharing and utilization management, said Sonya Schwartz, program director for the National Academy for State Health Policy. “One plan may allow some to get access to some sort of service or drug right away. Another may require preauthorization,” she said.

Most states have chosen for their benchmark plans the most popular small-group plan in their jurisdictions, which also serves as the default option for states that don’t actively choose a benchmark.

White House zeroes in on mental health

In the final rule, HHS placed a special emphasis on how essential benefits standards starting in 2014 would strengthen and expand coverage of mental health and substance abuse disorder services, one of the 10 broad categories of care.

The rule states that the federal mental health and substance abuse parity law will apply to new plans sold on the exchanges, as well as to nongrandfathered small-group and individual plans sold outside of the marketplaces, said Mark Covall, president and CEO of the National Assn. of Psychiatric Health Systems. That means insurers will not be able to cover those services under different limitations than the ones that apply to other medical care.

These policy changes will help close gaps that have existed in mental health coverage in the insurance market, HHS officials stated in a report released in tandem with the final health benefits rule. The department estimated that 20% of those who have individual market insurance have no mental health services coverage, while a third can’t get coverage for substance abuse disorders.

“For far too long we have had a two-tiered insurance system, with those who had brain disorders getting less coverage than those who had heart disease. Finally, this practice is coming to an end,” Covall said.

Psychiatrists wanted a higher floor

It’s encouraging that the ACA required mental health and substance abuse coverage as one of the 10 categories of care and mandates parity for those benefits, said Julie A. Clements, deputy director of regulatory affairs with the American Psychiatric Assn. The rule also clarified that if a benchmark plan is missing the category, it must supplement it from another approved state plan, she said.

But the APA didn’t get everything it wanted in the final rule. Of particular concern is the scope of mental health/substance abuse services that plans under the law must offer within the category. “The way it currently is, you can have a lot of variation from state to state,” Clements said.

Federal mental health and substance abuse parity law will apply to new plans sold on health insurance exchanges.

For the most part, HHS gives states a great deal of leeway in the design of essential health benefits above the floor. “How substantive a state’s mental health and substance abuse benefits may be is really going to reflect the interaction between federal EHB guidelines and existing state law,” she said. Only some states require that care for certain mental health diagnoses be covered by all insurers.

There’s also going to be variability in how mental health parity is defined among individual plans, making it difficult for doctors and patients to compare plan offerings, said Barry Perlman, MD. He’s director of the Dept. of Psychiatry at St. Joseph’s Medical Center in Yonkers, N.Y., and the past president of the New York State Psychiatric Assn. Mental health must be covered at the same level as other medical benefits, but he said that doesn’t guarantee strong coverage.

Jim Smith, senior vice president of the Camden Group, a national health care consulting firm, recommended that physicians familiarize themselves with the list of 10 broad benefit categories but remain cognizant of the fact that there will be differences by state, as well as by plan.

Drug, children’s coverage hit

Despite the gains in mental health coverage, some physician organizations said there were other parts of the final rule that fell short, including the prescription drug category.

The final rule retains the proposed rule’s provision that affected health plans must cover the same number of drugs in a particular class as does the state benchmark plan. Plans must cover at least one drug in a class in cases where the benchmark doesn’t cover any.

The scope of mental health and substance abuse services that plans must offer is subject to state laws.

But these conditions still are limiting, the APA’s Clements said. HHS allows a plan appeals process for those seeking coverage for a “clinically appropriate” drug not on the formulary. But she noted that such appeals happen now, “and thus far it doesn’t usually work out for patients.”

Chris Hansen, president of the American Cancer Society Cancer Action Network, said he was encouraged, however, that the rule recognized the importance of covering new drugs under the essential benefits as those medications become available.

In the final rule, HHS did not adopt advice by the American Medical Association and the American Academy of Pediatrics to use Medicaid’s Early and Periodic Screening, Diagnostic and Treatment program as the model for defining pediatric essential health benefits. Medicaid covers more robust benefit options for children than many of the private plans listed as state benchmarks, the groups said.

NASHP’s Schwartz observed that the final rule opened the door to some pediatric benefits that wouldn’t necessarily be covered by commercial plans, such as habilitative, dental and vision services.

But pediatric medical organizations contended that the rule offers no guarantee of these benefits. States “may choose to effectively eliminate dental coverage, even though dental caries are the most preventable health condition in the pediatric population. Durable medical equipment may be substituted for habilitation, even though a child with spina bifida or a congenital defect may need both,” the AAP and other groups wrote in a Feb. 25 letter to HHS.

Access to pediatric drugs and mental and behavioral health services for kids also may be excluded or weakened, they stated.


Millions more will get psychiatric coverage

The Affordable Care Act’s minimum benefits mandate and a federal parity law will combine to provide mental health and substance abuse coverage to more than 32 million Americans who didn’t have any before, according to the Obama administration.

Insurance status

Have benefits

Will gain benefits

Total with parity benefits

Individual plan

7.1 million

3.9 million

11 million

Small-group plan

23.3 million

1.2 million

24.5 million



27 million

27 million


30.4 million

32.1 million

62.5 million

Source: “Affordable Care Act Will Expand Mental Health and Substance Use Disorder Benefits and Federal Parity Protections for 62 Million Americans,” Office of the Assistant Secretary for Planning and Evaluation, Dept. of Health and Human Services, Feb. 20 (link)

Don’t Miss National Experts at NYAPRS April 25-6 Executive Seminar

Register Today at!