While an in­terim rule on men­tal health par­ity was met with mostly pos­i­tive re­views, a coali­tion is su­ing say­ing the proper process wasn’t fol­lowed in is­su­ing the rule

Modern Healthcare - - Modern Healthcare -

An in­terim rule that im­ple­ments a par­ity law re­quires some group health plans that pro­vide med­i­cal-sur­gi­cal cov­er­age and men­tal health and sub­stance-abuse cov­er­age ben­e­fits to en­sure that fi­nan­cial re­quire­ments and treat­ment lim­its for both are equal. Michele Gougeon of McLean Hospi­tal, left, says, “It’s pretty clear what the leg­is­la­tion wants is real par­ity.” How­ever, a coali­tion is su­ing over the way the rule was is­sued.

Typ­i­cally a dry and te­dious en­deavor, the fed­eral rule­mak-ing process has got­ten a lit­tle more in­ter­est­ing for men­tal health par­ity ad­vo­cates in the past few weeks. Be­hav­ioral health­care providers, man­aged­care or­ga­ni­za­tions and as­so­ci­a­tions are still in­ter­pret­ing the fed­eral gov­ern­ment’s in­terim fi­nal rule for men­tal health par­ity leg­is­la­tion that be­came ef­fec­tive April 5 as they pre­pare for a pub­lic-com­ment dead­line in early May.

The rules and reg­u­la­tions—is­sued by HHS and the La­bor and Trea­sury de­part­ments on Feb. 2—ap­ply to the Paul Well­stone and Pete Domenici Men­tal Health Par­ity and Ad­dic­tion Eq­uity Act, which Congress passed on Oct. 3, 2008. A hard-fought victory for be­hav­ioral health ad­vo­cates, the law re­quires group health plans with 50 or more em­ploy­ees that pro­vide med­i­cal-sur­gi­cal cov­er­age and men­tal health and sub­stance-abuse cov­er­age ben­e­fits to en­sure that fi­nan­cial re­quire­ments and treat­ment lim­its for both are equal (Oct. 6, 2008, p. 6). Al­though the reg­u­la­tions went into ef­fect last week they will ap­ply to plan years beginning on or af­ter July 1.

In early April—one month be­fore the rule’s pub­lic-com­ment dead­line—the Coali­tion for Par­ity, a group of three man­aged be­hav­ioral health­care or­ga­ni­za­tions, sued HHS Sec­re­tary Kath­leen Se­be­lius, La­bor Sec­re­tary Hilda So­lis, Trea­sury Sec­re­tary Ti­mothy Gei­th­ner, and their re­spec­tive Cab­i­net de­part­ments, for what they con­tend was the de­part­ments’ fail­ure to “en­gage in re­quired no­tice and com­ment rule­mak­ing” be­fore the in­terim fi­nal rules were is­sued.

At is­sue, the plain­tiffs ar­gue, is that the three de­part­ments failed to is­sue a pro­posed rule by Oct. 3, 2009 (the one-year an­niver­sary of the bill’s pas­sage), choos­ing in­stead to is­sue an in­terim fi­nal rule.

“The coali­tion and its mem­bers ad­vo­cated for and fully sup­port the par­ity statute,” said Jef­frey Pos­ton, a part­ner at Crow­ell & Mor­ing in Wash­ing­ton and lawyer for the coali­tion, which con­sists of Mag­el­lan Health Ser­vices, ValueOp­tions and Bea­con Health Strate­gies.

“The law­suit is about due process. The coali­tion seeks only to par­tic­i­pate in the rule­mak­ing process and pro­vide in­put to help fash­ion the best pos­si­ble reg­u­la­tions and safe­guard ac­cess to qual­ity be­hav­ioral health­care.”

Ac­cord­ing to the Feb. 2 Fed­eral Reg­is­ter, pro­posed rule­mak­ing “is not re­quired when an agency, for good cause, finds that no­tice and pub­lic com­ment thereon are im­prac­ti­ca­ble, un­nec­es­sary or con­trary to the pub­lic in­ter­est.”

Mean­while, providers, as­so­ci­a­tions and in­sur­ers con­tinue to pore over the in­terim fi­nal rule as they pre­pare to sub­mit com­ments. For some, the re­sponse to the reg­u­la­tions was pos­i­tive. “This par­tic­u­lar reg­u­la­tion has been very thought­fully crafted,” said Michele Gougeon, ex­ec­u­tive vice pres­i­dent and chief op­er­at­ing of­fi­cer at 177-bed McLean Hospi­tal in Belmont, Mass., which is af­fil­i­ated with Har­vard Med­i­cal School. Gougeon also said there was con­sis­tency in the struc­tur­ing of the rule. “It’s pretty clear what the leg­is­la­tion wants is real par­ity be­tween men­tal and sub­stance-abuse ser­vices and gen­eral med­i­cal ser­vices.”

Ac­cord­ing to a sum­mary from the CMS, the act pre­serves the pro­tec­tions of the Men­tal Health Par­ity Act of 1996, which states that a group health plan may not im­pose an­nual or life­time dol­lar lim­its on men­tal health and sub­stance-use-dis­or­der ben­e­fits that are less fa­vor­able than any lim­its im­posed on med­i­cal-sur­gi­cal ben­e­fits.

The new act, which ap­plies to com­mer­cial health plans and Med­i­caid man­aged-care plans, Anec­do­tal ev­i­dence sug­gests the new law has in­creased pa­tient vol­ume at be­hav­ioral health providers.

Front cover photo by Dwight Cendrowski

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