Lawyers: Biden Unlikely to Expand Parity to Include Medicare, But Other Behavioral Changes Probable

When President Joe Biden was elected, behavioral health stakeholders were hopeful he would tackle some of the industry’s most pressing issues, chiefly among them being parity.

Even though the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) requires insurers to make behavioral health coverage no more restrictive than medical coverage, payers frequently come under fire for denying behavioral claims and reimbursing providers at incredibly low rates. 

Then there’s the Medicare program, which is exempt from MHPAEA altogether. As such, many behavioral treatment options are unavailable to beneficiaries with traditional Medicare.


Advocates have long been pushing to change that. And given Biden’s history as a strong supporter of MHPAEA, as well as his role in ensuring parity was included in the Affordable Care Act (ACA), some believe he could catalyze that change.

But providers shouldn’t hold their breath: While the administration outlined its intention to expand substance use disorder (SUD) treatment coverage in its newly released first-year drug policy priorities, it made no mention of expanding MHPAEA to include Medicare. And lawyers at the international law firm Foley & Lardner LLP said it’s unlikely in the years to come, too.

“Sadly, I don’t have much hope for it,” Hannah Zaitlin, senior counsel at Foley, told Behavioral Health Business.


Christopher Donovan, partner at the law firm, echoed those sentiments. He was more hopeful, though, when it came to the possibility of other pro-behavioral changes in Medicare.

“There is a possibility you’re going to see CMS expansion of some of these services for substance use disorder (SUD) for Medicare,” Donovan told BHB. “And I think where you’re going to see even more activity is, not directly with respect to CMS programs, but with respect to Medicare Advantage.”

For the most part, Medicare operates on a fee-for-service basis. And the program consists of four main parts: Part A, which covers inpatient care; Part B, which covers outpatient; Part C, which is another name for Medicare Advantage; and Part D, which helps cover the cost of prescription drugs.

As such, intermediate behavioral health care often falls through the cracks and is not reimbursed by Medicare. Plus, it covers little in the way of SUD benefits, despite the fact that the Medicare population has the fastest-growing prevalence of opioid use disorder (OUD) in the U.S.

For example, most community-based services delivered by SUD treatment facilities are not reimbursed by Medicare. On top of that, the program’s limits for inpatient SUD treatment are more restrictive than for other medical treatments, and many SUD clinician types — such as licensed counselors, certified addiction counselors and peer counselors — are not authorised Medicare providers.

Industry stakeholders have been fighting to change those parity issues for years. In fact, last year, both the National Council for Behavioral Health and the National Association for Behavioral Healthcare (NABH) — two of the industry’s leading trade groups — identified the push to expand Medicare as one of their top priorities.

“A huge effort we’re engaged in is expanding Medicare to pay for other types of providers — namely marriage and family therapists and licensed professional counselors — so that the pool of people available to get reimbursed improves,” Chuck Ingoglia, president and CEO of the National Council, told BHB in 2020.

Meanwhile, NABH President and CEO Shawn Coughlin also called out Medicare’s 190-day lifetime limitation on inpatient psychiatric care.

“Those are parity issues, and we feel the federal government should not continue to have blatant exclusions or caps that they’ve prohibited in the private sector,” Coughlin told BHB last year.

While only time will tell which Medicare policies the Biden Administration ultimately moves to change, Donovan said he’s most bullish on the expansion of Medicare Advantage in behavioral health, followed by programmatic expansions, such as the introduction of more bundled payment options for providers in the space.

“Then at the bottom, I probably put the overall federal legislation [to expand parity],” he said. “I think that one will get bollixed up with partisanism in DC.”

“I’m pretty confident it will change it seems to be changing in other areas of the reimbursement world we’re seeing”

Medicare Advantage opportunity

While Medicare isn’t bound by MHPAEA, Medicare Advantage — a type of health insurance that provides Medicare benefits through private health insurers — is. Plus, MA plans give beneficiaries perks in the form of both traditional supplemental benefits, which are primarily health-related benefits unavailable in normal Medicare, and SSBCI, which are non-primarily health-related benefits for certain chronically ill beneficiaries.

In recent years, Medicare Advantage has grown increasingly popular among seniors. Last year, for example, it accounted for about four in ten of all Medicare beneficiaries.

At the same time, the number of Medicare Advantage (MA) plans offering special benefits to beneficiaries with behavioral health issues has spiked dramatically.

According to an analysis from the actuarial consulting firm Milliman, 135 MA plans are using Special Supplemental Benefits for the Chronically Ill (SSBCI) for behavioral health diagnoses such as anxiety, depression or substance use disorder (SUD). In the year prior, only five plans nationwide provided reduced cost-sharing and/or additional benefits related to behavioral health.

Donovan seems hopeful that trend will continue going forward, which is a good sign for providers in the space.

“You’re seeing a lot of investment by those commercial payers … in these intermediate programs,” he said. “It’s good news [for providers] because you can’t provide the care without a network.”

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