What Will Define Year-End Behavioral Health Parity Efforts in Congress

Behavioral health parity continues to be a key priority in congressional legislation. And it’s possible that new legislation could pass out of Congress before the end of the year.

Leading into the lame-duck session, payers and care providers have called for clarity around parity, continuing a legal and legislative quest that stretches back to the 1990s.

Several Democrat and Republican senators are eager to include mental health reforms, which will include behavioral health parity, in must-pass bills. Sens. Bill Cassidy (R-La.) and Ron Wyden (D-Ore.) recently indicated their optimism for these efforts, according to Politico. Rep. Paul Tonko (D-N.Y.) expressed similar confidence, according to Axios.

All three lawmakers are at the forefront of mental health reform efforts. Cassidy and Wyden are the leading members of the Senate Finance Committee, which has produced several pieces of legislation on various behavioral health topics. Tonko is the sponsor of a key provision in the Restoring Hope for Mental Health and Well-Being Act (H.R. 7666). That bill cleared the House of Representatives in June on a 402-20 vote.

But what payers and providers want out of action on the hill and from the Biden administration differ. And the present state of behavioral health parity frustrates both sides of the proverbial coin.

Clarity on behavioral health parity compliance

The Consolidated Appropriations Act of 2021 allowed the Department of Labor (DOL) to consider nonquantitative treatment limitations (NQTLs) in its parity enforcement duties. It also required the DOL to establish rules about how NQTLs are assessed for compliance with federal law. The department has not done so. 

“We’ve been waiting for two-plus years for the Department of Labor to give out some guidance around how parity is measured,” Jim Laughman, president of PerformCare, told Behavioral Health Business. “We believe very clearly that we’re demonstrating that we’re doing parity, minus that guidance and understanding from what the federal government is looking for.”

PerformCare is a behavioral health managed care organization within Newtown Square, Pennsylvania-based AmeriHealth Caritas, a managed care organization that offers Medicare, Medicaid and marketplace health plans. Laughman is also the treasurer of the behavioral health payer advocacy group Association for Behavioral Health and Wellness (ABHW).

In September, the U.S. House of Representatives passed the Mental Health Matters Act. The bill would give the DOL additional power to enforce provisions of the keystone federal parity law — the Mental Health Parity and Addiction Act (MHPAEA) of 2008 — and make it easier to sue payers over the handling of behavioral health claims.

At that time, ABHW Government Affairs Vice President Maeghan Gilmore told BHB ABHW wants “to [get] clear, comprehensive guidance” from the Biden administration “before we move into adding more enforcement mechanisms.”

Providers want to ease the burden on patients

On the ground, providers express a different worldview of behavioral health parity in practice.

“Anecdotally, I can think of dozens if not hundreds of stories of people that — when they really needed care for an acute substance use disorder, or an eating disorder, or severe anxiety — just cannot get the level of care they needed without spending their life savings,” Lauren Conaboy, vice president of national policy at Centerstone, a nonprofit addiction treatment and mental health provider, told BHB.

Conaboy concedes that parity efforts have lessened some administrative burdens on patients and providers. There are few prior authorizations; it’s easier to get a few sessions of therapy that are covered by insurance. But delivering high-acuity treatment that’s covered under behavioral health parity rules is difficult.

Even in the realm of commercial health insurance, often seen as more generous with behavioral health benefits, Conaboy said there can be a big difference between the cost-sharing requirements of primary care and behavioral health providers.

“Until we’re in a day where we can go see a psychiatrist or a therapist, and it’s covered … the same as if we were to go to our primary care physician,” behavioral health parity won’t be realized, she said.

In addition to cost sharing and reimbursement, the administrative burdens could be addressed with parity legislation and, in turn, boost access to care.

“It’s really important that parity not be seen as a whiny complaint that people aren’t getting paid enough money,” Jennifer Evans, an attorney and member of the Polsinelli Behavioral Health Law Group, said in a recent webinar. “It’s really about making sure that the payers — whether it’s Medicare, Medicaid, or a commercial payer — [are] not dissuading people from getting access to the behavioral health services that they need through some sort of administrative or financial limitation.”