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It feels like policy reforms like parity are stuck in a line dance. The Cha Cha Slide, The Electric Slide or the Cupid Shuffle come to mind.
You know what I’m talking about. First, you move to the left, then to the right, forward, backward, turn around, change direction again. But somehow, you end up in the place you started.
More plainly said, the Trump administration and its allies in Congress have revoked the preferred status that the behavioral health industry enjoyed under the Biden administration. Now, it’s time to either make do and wait until a new administration comes along and try again or go all-gas-no-breaks just to make up lost ground in the policy development world.
We shouldn’t be surprised at this kind of development. Trump and Co. are doing exactly what they said they would do on the campaign trail: tear down the establishment. This movement on parity as well as the genuine attempts by the administration and Congress to hack back billions in social program spending, i.e., Medicaid, shows that the powers that be in Washington don’t much care for the popularity or stereotypically bipartisan nature of any given policy. D.C. Republicans appear to have changed their tune on behavioral health parity.
Still, there are key facts that color the movement around parity enforcement that are essential to establish as we move forward. Here’s what I’ll cover in this edition of the BHB+ Update:
— Parity law isn’t so easily undone
— The potential use of a double-edged legal development
— Popular sentiment against boosting health plans
— My take on the status of behavioral health with federal regulators
The law still demands parity enforcement
Coincidentally, a Trump-signed law acts as both a belay and climbing rope for the enforcement of the Mental Health Parity and Addiction Equity Act (MHPAEA). That means parity regulations can only fall so far.
At the end of 2020, Trump signed the Consolidated Appropriations Act of 2021 into law. Among several reforms, the mega-bill articulated the requirement that the federal government create rules that enforce the oversight of nonqualitative treatment limitations (NQTLs) parity, the issue at the heart of the Biden-era parity rule in question. These limitations on care are primarily based on practice rather than on quantifiable measurements. Think concurrent review, prior authorizations or provider network admission practices.
The section of the law that pertains to NQTL and other parity-related matters is over 7,000 words long and ultimately articulates that the government must have health plans identify, justify and compare NQTLs in mental health benefit plans with physical health care. Health plans must also make these available when requested by the federal government and address disparity.
The rule made it clear that health plans were forbidden from imposing stricter NQTLs on behavioral health benefits. The law states, “The comparative analyses demonstrating that the processes, strategies, evidentiary standards, and other factors used to apply the NQTLs to mental health or substance use disorder benefits, as written and in operation, are comparable to, and are applied no more stringently than, the processes, strategies, evidentiary standards, and other factors used to apply the NQTLs to medical or surgical benefits in the benefits classification.”
What remains to be seen is how — but more realistically to me, if — the Trump administration wants to establish a direction forward based on what the advocates in the health plan and behavioral health industries try to hash out in official or unofficial forums.
Legal pendulums swing both ways
Many experts I spoke with either communicated high-panic uncertainty or worried optimism when the U.S. Supreme Court undid the Chevron Doctrine. That’s because the increased ease with which executive enforcement of laws can be challenged creates significant regulatory uncertainty. That uncertainty could sometimes benefit the behavioral health industry.
The Chevron Doctrine is a precedent set about 40 years ago that established that courts must be deferential to federal agencies’ interpretation of statutes when the law is silent or ambiguous on specific issues. In June 2024, a Supreme Court ruling ended that precedent and established that courts “must exercise their independent judgment” when assessing agency actions.
Many experts also said that it would be much easier to challenge rules and regulations that strayed from the black-and-white text of the law. So, if the result is unfavorable at the end of any rulemaking process, there is an increased likelihood of success in legal challenges. Nothing is ever guaranteed in court. But with parity laws as they exist, there is at least a door open for the industry and its allies to nix unfavorable rules as its opponents do to the ones it likes.
The optics and advocacy opportunities
To be blunt, the mega-corporations that control huge swaths of public and private health plan administration are unpopular among Americans. This is a vital condition in the public square that favors behavioral health.
Only 28% of Americans approve of the state health care coverage in the U.S., according to a Gallup poll. The same poll found 19% of American adults find the levels of health care costs acceptable.
More and more people are enraged at the disconnect between the thousands that they and their companies pay for health plans and the thousands more they have to pay to access health care. On top of that, an increasing segment of public discourse is opening up to the horror stories that providers and patients face at the hands of health plans.
A recent example: A man in Southern California was approved for a double lung transplant for stage 4 lung cancer and related medical transportation by his health plan that then turned course and denied its previous approval and only reinstated the approval after public outcry and an appeal.
A recent essay by a public policy professor about the public shaming of her health plan in what appeared to be a dubious claim denial adds another anecdote that shows that health plans not only know they are losing popularity and credibility — they are sensitive to it.
Further advocacy work in this space must lean into what will be the most effective. All of the technical jargon and legal arguments are lost on most folks, even people who work in and around the space (myself included). What people do know by first-hand experience or the experience of others is that health care is expensive; they themselves pay or some familiar entity pays a lot for health insurance, and it has never been harder to get care. I also would bet that people would understand arguments about fairness toward clinicians — who are widely popular — and injustice in limited access to care due to a lack of parity.
Why parity isn’t going to be priority
Given the populist, big-business-held-accountable flavor of parity itself and the opportunities in communicating parity, it’s a surprise that Trump and the Republicans in his orbit haven’t at least picked up on parity as a minor adornment to their image. But this and too many things to get into now show that this populism in the present ruling majority is pretty insubstantial. It also calls into question if parity will ever be a priority.
How we learned about this intent from the Trump administration is also revealing about how low a priority parity is. In short, our arrival at this moment seems like a last-minute afterthought prompted not by a serious policy study but by a looming public deadline. I think this is representative of behavioral health as a whole, at least so far as present conditions persist.
Just before inauguration day, the ERISA Industry Committee (ERIC) sued the federal agencies that would enact and enforce the parity rule. This set a 60-day countdown for the federal government to respond. As that timeline approached, attorneys representing the government wanted to kick their response down the road another 90 days; the judge gave the government a 45-day extension, setting the date to respond on May 12.
The response, which didn’t address the lawsuit’s substance at all, came at the last possible minute and violated earlier deadline rules set by the court for extensions and similar requests.
“Since this motion requests similar relief as an extension, defendants respectfully request that the court excuse defendants’ noncompliance with the requirement,” the attorneys for the government said in their request for the suit to be held in abeyance.
What’s more, the document merely describes the government’s intent not to enforce the Biden rule and vague representations that the Trump administration will “reconsider” the rule “including whether to issue a notice of proposed rulemaking rescinding or modifying the regulation.”
The administration has done neither. While it’s reasonable to expect that developing a new rule and strategy on parity will take time, the Trump administration has already developed its non-enforcement policy, completed on May 8, four days before the court’s response deadline. It was delivered to ERIC on the same day, and questions by ERIC were answered by the federal government on May 9. We still don’t have a public copy of the non-enforcement rule. ERIC won’t give it to me, and the federal government has not responded to my request for a copy.
Finally, I’ll point out that the majority in control of the federal government is focused on cutting spending on benefits in any way it can. In that spirit, it’s impossible to see anyone successfully championing a policy that would drive more spending toward behavioral health, even if it isn’t related to federal spending.
So, what is the industry to do? It would make sense to hunker down.
But then again, if anyone ever let the likelihood of possible success dissuade them from undertaking a seemingly impossible endeavor, then we would never truly know what really is possible.
