The Legal Action Center has issued a detailed guide intended to inform both behavioral health treatment providers and patients/families of the breadth of federal parity protections and the numerous avenues for pursuing redress against possible insurer violations of parity.
A Guide to the Federal Parity Law offers specific information on New York agencies charged with assisting that state’s residents in navigating the addiction and mental health service systems, but overall the report’s information is applicable to providers and consumers across the country. The guide’s author told ADAW that the legal advocacy organization was motivated to create the document in part by results of a 2014 American Psychological Association survey finding that fewer than 5 percent of Americans were aware at all of the Mental Health Parity and Addiction Equity Act. The guide took around a year to compile and publish.
“We felt that the first step in getting more enforcement was to help the public understand that the law exists and what its rights are,” said Karla Lopez, staff attorney with the Legal Action Center.
Critical knowledge gaps about parity extend to the behavioral health provider community as well, Lopez pointed out. “A lot of providers aren’t aware of all the things that are subject to parity,” she said, particularly in the area of nonquantitative treatment limitations. “They might not know that usual and customary reimbursement rates are subject to parity,” which could affect whether they could reasonably afford to serve as in-network providers.
Adverse determination responses
The guide, released in late June, offers users insurance scenarios that might raise a red flag about possible parity violations, and includes sample complaint forms to government agencies overseeing parity compliance in the states. “We want to encourage providers to act when they see something,” Lopez said.
One of the most practical sections of the guide lays out what a plan member or provider can do if it believes an insurer is violating the parity law. It proceeds through the six options that can be considered if a health plan issues an “adverse benefit determination” on grounds that the service is not medically necessary or is experimental, ranging from an internal appeal at the beginning of the typical timeline to a lawsuit at the other end. (One of the options, a fair hearing process, is available only to Medicaid beneficiaries.)
The guide describes any differing filing requirements based on whether someone is in an individual, small-group marketplace, large group, self-insured or other health plan. It also specifies requirements in areas such as the expedited appeal process in cases of an urgent health situation — a process during which an insurer cannot deny inpatient treatment on grounds related to medical necessity or lack of prior authorization.
Lopez said that while the option of filing a complaint to a government agency is available at any time, consumers generally are encouraged to make sure they engage in internal and external appeal processes first, so as not to allow their statutory deadlines to pass without action. The guide also emphasizes the importance of citing the parity law directly in all communications.
“Note that the entity reviewing your appeal, grievance, or complaint may not look at whether your health plan is violating the federal parity law unless you specifically raise the law,” the guide states. “In addition, if you do not raise parity in your original appeal, grievance, or complaint, courts and other reviewing agencies may not be able to consider parity later on, if you want them to.”
Lopez added, “Our sense is that when appeals and complaints are filed, the response from the insurer occurs at the individual level. The insurers aren’t saying, ‘Is this a parity violation?’” So plan members and/or providers have to make sure that parity specifically is part of the conversation, she said.
New York’s example
The report cites the active role that the Health Care Bureau in the New York attorney general’s office has played in parity enforcement, having achieved settlements of cases against five health plans for parity violations. Lopez said the settlements in New York directly address the principle that parity applies to intermediate levels of substance use treatment, from residential to partial hospitalization to intensive outpatient.
“In the settlements, they compare residential to skilled nursing,” Lopez said, which essentially means that the New York insurers cannot impose tighter restrictions on residential treatment for substance abuse than they do on skilled nursing on the medical side. “The parity law certainly protects inpatient and residential care,” Lopez said.
The guide also lists the five types of health plans that are not protected by the federal parity law: grandfathered small-group plans, fee-for-service Medicaid, Medicare, TriCare (although regulations to align TriCare with federal parity requirements are now being considered) and retiree-only plans. But the guide emphasizes that members in these plans have other avenues for challenging denials of coverage.
Providers can step in
Although the report conveys a sense that the individual plan member has numerous rights and options, it also sounds a call for more provider engagement in combating improper denials of service.
“Who should take action may depend on where the patient is at,” Lopez said. “Persons in an addiction or mental health crisis are not in a position to do this for themselves.”
Moreover, she said, “Providers are in a better position to see patterns. They may see a certain insurer always denying care, and they can bring that issue to the attention of regulators.”
As part of its overall guidance on parity, the Legal Action Center in the fall will resume parity-related trainings to groups such as care providers and public-interest attorneys. Lopez said the center also intends to launch a parity hotline service to be used by providers and advocates.
To access a free copy of the Legal Action Center’s A Guide to the Federal Parity Law, visit http://lac.org/wp-content/uploads/2016/06/LAC-Parity-Guide-2016.pdf.
A theme of the Legal Action Center’s comprehensive guide to the federal parity law emphasizes the wide reach of parity’s protections and the numerous options plan members have for getting their addiction and mental health care covered.