Laws Which Confer Protection
Laws which Offer autism and Mental Health Protections to Consumers
WHAT IS THE FEDERAL MENTAL HEALTH PARITY AND ADDICTION EQUITY ACT?
The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA), is a federal law that was enacted in order to address health insurance practices that unfairly limited coverage for mental illness and substance abuse. Generally, the law requires that if plans offer mental health benefits, the financial requirements and treatment limitations for mental health or substance use can be no more restrictive than the predominant financial requirements or treatment limitations applied to substantially all medical and surgical benefits covered by the plan and there are no separate treatment limitations that are applicable only with respect to mental health or substance use disorder benefits.
The law applies to nearly all private health plans, including those that are self-funded, fully funded, and individual plans bought on or off the exchange. The law extended to the individual and small group market through the Affordable Care Act. The law does not apply to:
- “Grandfathered” plans that were created and purchased before March 23, 2010
- Self-funded plans with fewer than 50 employees
- Some non-Federal government plans may elect to opt out.
- Plans that receive a temporary exemption based on demonstrated increased costs associated with compliance with the MPHAEA
- Tri-Care/DOD plans
- Medicare
- Medicaid FFS plans (not part of a Managed Care Organization)
Medicaid is required to comply with MHPAEA, but the details are left to the states to administer.
The Federal Employee Benefit Program (FEHB) is subject to MHPAEA through executive order
Tracking MHPAEA violations
In 2016, a Federal Mental Health Parity Task Force issued a report to President Obama which included many recommendations on implementation and enforcement of the Federal Mental Health Parity Act. One of the recommendations included tracking consumer complaints related to mental health and substance abuse. The Kennedy Forum has taken the initiative to track this information and share it with legislators and policy makers. If you (or a loved one or a client) have been denied a mental health treatment, please consider reporting your experiences here.
Benefits That Must Be Covered Equally
1. Benefit Classifications: All health care benefits are categorized into six benefit classifications. Services for MH/SUD must be at parity with medical/surgical benefits in each of these categories:
- Out-patient, in-network
- Out-patient, out-of-network
- Inpatient, in-network
- Inpatient, out-of-network
- Emergency Services
- Prescription Drugs
For example, if a plan requires prior authorization requirements for behavior treatment for autism, or intensive outpatient therapy for mental health, they must require pre-authorization requirements for substantially all medical/surgical treatments.
2. Consumer Cost-Sharing and Treatment Limitations: Consumer cost-sharing such as co-pays, deductibles or co-insurance and treatment limitations cannot be more restrictive or burdensome for MH/SUD than for medical or surgical benefits.
For example, if a health plan allows unlimited outpatient medical visits per year, it cannot limit MH/SUD outpatient visits to a specified amount.
3. Nonquantitative Treatment Limitations: NQTLs applied to MH/SUD can be no more restrictive than treatment limitations applied to substantially all medical and surgical benefits covered by the plan and there are no separate treatment limitations that are applicable only with respect to mental health or substance use disorder benefits.
Some examples of NQTLs may be found here , and include:
- Prior authorization policies
- Medical necessity guidelines
- Formulary design for prescription drugs
- Fail-first or step-therapy protocols
- Restrictions based on geographic location, facility type, or provider specialty
For example, a plan cannot exclude coverage for inpatient, out-of-network treatment of substance abuse disorders when obtained outside of the State, if there is no similar exclusion for medical or surgical benefits within the same classification. Similarly, a plan cannot require Joint Commission Accreditation for Mental Health Facilities but not for medical facilities within the same class.
An example of Fail-first/step therapy protocols that we see frequently are denials for residential treatment if clients have not previously tried partial hospital or intensive outpatient. Plans cannot do that if they do not make similar requirements on the medical/surgical side.
The law also states that there are no separate treatment limitations that are applicable only to MH or SUD benefits. Examples of these that we see all the time are exclusions for specific types of evidence based mental health treatments that do not have direct analogs on the medical/surgical side, including:
- Behavior heath therapy for autism.
- Wilderness therapy for people with moderate to severe mental health and substance use conditions.
4. Transparency of Health Plan Information: For any denial of service, the plan must include in writing the reason for the denial (if it is not medically necessary, the plan must say why), and steps on how to appeal. They also must make available to you criteria used in making their decision.
5. Out-of-Network Benefits: Access to out-of-network MH/SUD services cannot be more difficult or restrictive than it is for medical or surgical services.
Warning Signs That Your Insurer May Be Violating Federal Parity Requirements
- Higher costs or fewer visits for mental health services than for other kinds of health care
- Requiring pre-authorization (permission) to get mental health care covered, but not requiring this permission of substantially all other types of health care
- Getting denied mental health services because they are not medically necessary but the plan does not provide information on the medical necessity criteria they used to make this determination
- Lack of in-network mental health providers taking new patients when there is no shortage of inpatient providers for other healthcare
- The plan will not cover standard or evidence based mental health treatments which do not have equivalents on the medical/surgical side, such as residential or other “intermediate” forms of therapy.
- Plan requires “fail-first” or step-therapy protocols (where the patient is required to try a less expensive treatment before being allowed to access a more expensive one) for mental health disorders but not for other health disorders.
- “Likelihood of Improvement” requirements – For residential treatment of MH/SUD, the plan requires likelihood that the patient will improve
- Licensure or geographical restrictions applied only to MH/SUD
Autism Mandates
As of this writing, all states have meaningful legislation or regulation that requires funding for autism treatments. Nearly all address behavioral therapy, and some include requirements around speech, occupational and physical therapies as well. Not all autism laws are the same, and it is important to understand the law governing your state. For a list of autism laws by state and what they cover, click here.
State Mental Health Parity Laws
The Kennedy Forum offers a state by state analysis of mental health parity legislation and regulation. To see what protections are available by state, click here. Don’t be too discouraged if your state got an F, as they are in good company. It is more important to understand the protections offered.
Relevant CA Mental Health & Autism Mandates
In California, there is a law in place called AB 88, also known as the California Mental Health Parity Act of 2000. This law requires coverage for the diagnosis and medically necessary treatment of the following "severe mental illnesses" in parity with other medical conditions:
- Pervasive developmental disorder or autism
- Schizoaffective disorder and schizophrenia
- Bipolar and major depression
- Panic disorder and obsessive compulsive disorder
- Eating disorders (anorexia nervosa and bulimia nervosa)
- Serious emotional disturbance (SED) in a child, which includes a non-developmental delay DSM diagnosis, impairment in self-care, family relationships, school or community functioning, and meets special education eligibility criteria.
California’s active autism mandate, AB 796, can be found here.
It has no restrictions on age, or caps on visits or annual spending. Unfortunately, this state mandate does not apply to Medi-Cal. Children on Medi-Cal are able to access ABA services through interpretation of federal Early Periodic Screening, Diagnosis, and Treatment (EPSDT) law. Effective 2014, services were available to those with autism, under age 21. Effective 2018, services were expanded to include other conditions, when medically necessary and recommended by a physician or a psychologist. At this time, these services are only available for those under age 21.
If You Don't Have an Asd Diagnosis Or Formal Mental Health Diagnosis in California
The SED qualification can be used for children who do not have a formal "severe mental illness" diagnosis or ASD diagnosis, but are experiencing many similar challenges to justify the need for behavior treatment, residential treatment, or other intensive type treatment.
Signficance of CA Parity Act
It is important to note that the CA Mental Health Parity Act entitles you to a diagnostic evaluation if there is a suspicion of any of the above listed conditions. Your primary care provider can authorize this. The plan is still responsible for this evaluation even if the child is later found not to have any of the above listed conditions.
It is also important to know that due to significant litigation (Harlick v Blue Shield of CA and Rea vs Blue Shield of CA), the CA parity act requires that all medically necessary treatment be provided to those that meet its criteria. This argument has been used to prevent health plans from enforcing categorical denials for things like wilderness therapy, residential treatment, and other evidence based treatments for autism/mental health conditions.
Special Noteworthy laws in other states
Both Massachusetts and NY have laws which require that the health plan or insurance company make a determination within required timelines for both expedited and standard appeals. Failure to adhere to the timelines shall be deemed to be a reversal of the health plan’s adverse determination. Laws in both states apply to fully funded plans.
The state of Oregon has a law which allows the Director of the Department of Consumer and Business Services to seek restitution on a consumer’s behalf for the actual damages the consumer suffered as a result of the insurer’s violation of state or federal law, or breach of contract.