. . .think again
Celebrations of last year's landmark mental health parity legislation ending insurance and business discrimination were premature. What once seemed a turning point now seems less certain if the federal guidelines for implementation of the Wellstone-Domenici Mental Health Parity and Addiction Equity Act are delayed beyond the Oct. 3 deadline. Such a delay could spell disaster for the 46 percent of the population whose treatment will be halted or never started, with lives lost, livelihoods delayed, but the status quo intact.
We should recall that parity was hotly debated before two bills (HR 1424 in the House, S 558 in the Senate) were folded into last year's stimulus package. It was an initiative supported by a unique collaboration between advocates in the mental health community and those in the addiction community, with coverage extending to the self-insured and to those in Medicaid managed care. The House initiative, led by Reps. Patrick Kennedy and Jim Ramstad, wanted to base treatment criteria on the American Psychiatric Association's Diagnostic and Statistical Manual. Insurance and business were able to determine that the Senate's bill allow them to define "medical need."
This provision, allowing the insurance companies to manage medical conditions, mandated there be no discrimination against mental illnesses or addictive disorders. Yet, many companies are attempting to reduce what they are calling "medical necessity" and in this way are encouraging the Departments of Health and Human Services, Labor and Treasury to undermine the fact and the spirit of parity.
Template for sabotage
How did such a thing happen? Simple and no surprise: Rather than risk profits, the insurance companies are trying to wriggle out of the spirit of Congress and sabotage a law 12 years in the making. The evidence is clear in requests to delay or abandon rules to end discrimination. They were made during this Spring's public commenting process and all letters are available on the website of the Department of Labor. You don't have to read many to realize the cavernous gaps between the ideals of Sens. Pete Domenici, Paul Wellstone, and Ted Kennedy, and the special interests trying to protect the profitable insurance industry.
One of the clearest examples comes from the American Benefits Council. The Council represents interests of employee-sponsored benefits and says it speaks for "Fortune 500 companies." Their letter (#383) provides a template for the goal of shrinking the law's mandate. They say they want to "exclude certain conditions, treatments, providers and treatment settings as a matter of design."
The American Benefits Council's request would basically shred the Wellstone-Domenici Act for group health plans, the kind that are often negotiated by employers. Isn't this exactly the opposite of what the bill was designed to do? In light of the recent hearings about the sometimes lethal pursuit of profits in the insurance industry, and the predatory practices victimizing clients - revoking policies, cherry-picking clients, dubious marketing practices - does it surprise that an organization representing employer benefits would request the mirror opposite of the legislation's signature goal?
When it comes to determining what should be covered medically, the Council writes: "Since there is no explicit parity requirement for medical management in the Act, none should be implied in regulatory guidance by the Agencies." UnitedHealth Group, another insurance giant, asserts (letter #275), "The law reserves to plans and health insurance carriers the right to define which diagnoses they will cover as mental health and substance use disorder benefits (subject to other applicable federal and state laws). And WellPoint Inc. which enrolls about 100 million Americans with a market cap in excess of $26 billion, requests flexibility to decide "categories of services for parity purposes" and "what mental health benefits are available under a plan or policy." There could be no more fundamental perversion of the sponsors' intent.
The Council requests a "non-enforcement policy" or "good faith compliance." Why? They say plan sponsors have not had the time to get ready for fall enrollments. Shouldn't the 12 years this bill was under discussion suffice? That's longer than the average college president holds a job, longer than most people live in the same home, twice a senator's term, six times that of a member of the House of Representatives. It's time to enforce, not to assess.
WellPoint Inc. says they are trying to establish limits comparable to other recognized physical health limits -- sounds good so far - until they specify the yardstick would be "20 allowed physical therapy visits per year."
What insurance companies call discretion has become license to deny treatments for financial gain. It's been the subject of hours and hours of congressional testimony, most recently last week for two days when the insurance industry was examined by a House committee. At the end of that hearing, Rep. Patrick Kennedy told representatives of the nation's largest insurance companies that the Wellstone-Dominici act inadvertently omitted college students from parity protection and asked for their help in extending coverage to a group in which suicide is a leading cause of death. Only CIGNA Healthcare answered his call.
The current strategy to undermine the regulations will greatly affect all of health reform. In July, the late Sen. Ted Kennedy, joined by Sens. Sheldon Whitehouse (D-RI), Jack Reed (D-RI), and Al Franken (D-Minn), wrote to Secs. Solis, Sebelius and Geithner to ask for quick implementation. "Only with regulations can we ensure the end to discrimination against those with mental health and substance use disorders." Four areas were identified: "Scope of services, medical management, and treatment limitations. They also said, "Separate but equal" deductibles -- basically charging for separate mental health co-payments -- do not constitute parity." In a letter to the same secretaries last week, Rep. Patrick Kennedy called "separate but equal" a "significant barrier."
Speaking for consumers
Advocates believe any attempt to allow individual companies to modify medical necessity will be a disaster. The United States Psychiatric Rehabilitation Association writes (letter #250):
"If this coverage is left open to interpretation, there will be extreme disparity from plan to plan, as well as state to state. Consumers, enrollees, and employers must be able to understand what mental health diagnoses will be part of their coverage.
The University of Pittsburgh's Western Psychiatric Institute and Clinic enumerates (letter #268) how insurance companies authorize lesser levels of care for behavioral health that discriminates against the provider and the consumer, limiting services for medical necessity.
Speaking for consumer and family-based organizations such as Mental Health America, NAMI, the Betty Ford Center, among others, the Parity Implementation Coalition, makes clear in a comprehensive analysis (letter #270) that almost all insurance plans currently discriminate by using an annual dollar amount, not a life-time limit on spending. Discrimination takes the form of restrictive criteria for filling prescriptions or for defining medical need. It reduces access based on interpretations of medical need coupled with astoundingly low reimbursement rates.
It was exactly this two-track system, one for mental health and substance use disorders, the other for physical health and surgical treatments, that Congress voted to end in October 2008. Last week advocates issued alarms, requesting letter-writing campaigns to encourage House members to sign on to Kennedy's request for a timely implementation.
The process of writing federal rules is complex, but the process for specifying how to end insurance discrimination reminds us why profit-making companies are unlikely to reform systems of health care. Haven't insurance companies had years to change how they structure what they do to promote health? Isn't it time to end the double standard leading to higher costs by ignoring evidence-based standards showing treatments for mental health and substance use disorders work? Isn't it time to stop invoking morally dubious claims that mental health is not whole health, that the mind and the body compete rather than collaborate, and that the will of Congress can be so easily undermined? One has to wonder whether there would ever be time enough for insurance companies.
Basically it comes down to asking whether insurance is willing to reform its practices. Failure to resolve this by Oct. 3 puts lives in jeopardy while the status quo remains intact.