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Massachusetts Association for Mental Health

August 10, 2017

Via Electronic Mail:

Laurel Fuller, MPH
Policy Analyst
Office of the Assistant Secretary for Planning and Evaluation
U.S. Department of Health and Human Services
200 Independence Avenue, SW, Room 424E
Washington D.C. 20201

Re: Stakeholder input to the Public Stakeholder Listening Session on Strategies for Improving Parity for Mental Health and Substance Use Disorder coverage from the Massachusetts Mental Health Parity Coalition

Dear Ms. Fuller:

Thank you for the opportunity to submit comments regarding the Department of Health and Human Services’ (HHS) action plan to improve Federal and State coordination to enforce the Mental Health Parity and Addiction Equity Act (MHPAEA).1

Health Law Advocates (www.healthlawadvocates.org) is a non-profit public interest law firm that provides free legal assistance to low-income Massachusetts residents who face barriers to obtaining essential health care.

Health Law Advocates submits these comments on behalf of the Massachusetts Mental Health Parity Coalition, a diverse group of consumer, provider and legal advocacy organizations dedicated to improving consumer access to needed behavioral health services through education and improved enforcement of state and federal mental health parity laws.

We urge HHS to foster full implementation of MHPAEA, by supporting increased collaboration state and federal efforts to enforce the requirements under MHPAEA. Toward that end, we support the full implementation of the recommendations described in the October 2016 Final Report of the multi-agency Mental Health and Substance Use Disorder Parity Task Force.2

In particular, we recommend that HHS:

  • Continue to expand and develop the consumer web portal to help consumers exercise their rights to mental health parity. The current site (at https://www.hhs.gov/mental-health-and-addiction-insurance-help) should be expanded to include:
    • Consumer-friendly descriptions of potential mental health parity violations. Consumer-friendly descriptions of consumer rights under MHPAEA, including the right to pursue an appeal when access or coverage for mental health or substance use disorder benefits are denied. Consumer-friendly descriptions and ways to contact state and federal agencies that can provide resources to help mediate disputes when a consumer encounters barriers to mental health and substance use disorder treatment.
  • Continue supporting consumer efforts to receive parity information when requested from their health plans, as required under MHPAEA. This could include creating consumer- friendly tools such as the recently proposed Model Form for such requests. In addition, to increase enforcement of MHPAEA, HHS could also augment the consumer portal to allow consumers to easily report instances when such parity documents are requested from a health plan, but not produced.
  • Continue supporting consumer education about parity protections, including support for state-based agencies interested in promoting broader access to mental health and substance use disorder treatment.

In addition, we recommend that HHS and other federal agencies continue to provide federal support for state efforts to enforce parity, through:

  • Training and technical assistance to state regulators on MHPAEA enforcement.
  • Creation of templates of consumer-facing educational resources for use by state regulators, and provide training on effective dissemination of these and other consumer education materials related to parity rights.
  • Highlighting best practices among states, and incorporating those practices into ongoing training models.
  • Convening ongoing ‘policy academies’ to bring expert and peer perspectives to training efforts related to more effective enforcement.

Finally, we recommend that HHS, DOL and IRS continue to develop and publish sub-regulatory guidance to ensure further implementation of MHPAEA. This would include:

  • Guidance that explicitly illustrates examples of medical management practices that could constitute non-quantitative treatment limitations (NQTLs) that violate parity standards under MHPAEA.
  • Guidance clarifying the application of parity requirements to various conditions. Examples include the recent guidance on the applicability of MHPAEA to opioid-use disorder and eating disorders.

In conclusion, we wish to thank HHS, DOL and IRS for the opportunity to provide feedback on the importance of ongoing federal support for, and collaboration with, state enforcement efforts by state regulators. We are committed to ensuring that MHPAEA achieves its purpose to eradicate discrimination against mental health and substance-use disorder treatment in insurance coverage, in order to allow consumers broader access to needed care.

Please feel free to contact Health Law Advocates Staff Attorney Wells Wilkinson at (617) 275-2983 or wwilkinson@hla-inc.org if you have any questions about our comments or recommendations.

Signed by the following organizational members of the Massachusetts Mental Health Parity


American Nurses Association Massachusetts
Association for Behavioral Healthcare
Children's Mental Health Campaign
Community Catalyst
Gosnold on Cape Cod
Health Care For All
Health Law Advocates
Massachusetts Association for Mental Health (MAMH)
Massachusetts Association of Behavioral Health Systems
Massachusetts Association for Occupational Therapy (MAOT)
Massachusetts College of Emergency Physicians
Massachusetts Council of Community Hospitals
Massachusetts Health and Hospital Association (MHA)
Massachusetts Law Reform Institute (MLRI)
Massachusetts Organization for Addiction Recovery (MOAR)
Massachusetts Psychiatric Society
Massachusetts Psychological Association (MPA)
Massachusetts Society for the Prevention of Cruelty to Children (MSPCC)
National Alliance on Mental Illness of Massachusetts
National Association of Social Workers, MA Chapter

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1 Dept. of H.H.S., Public Stakeholder Listening Session on Strategies for Improving Parity for Mental Health andSubstance Use Disorder Coverage, Notice of meeting, 82 Fed. Reg. 30876 (July 3, 2017).
2 Mental Health and Substance Use Disorder Task Force, Final Report, Oct. 2016, Available at https://www.hhs.gov/about/agencies/advisory-committees/parity/index.html.

Massachusetts Association for Mental Health 8/1/2017

1 August 2017
By electronic mail to parity@hhs.gov
Laurel Fuller
200 Independence Ave. SW Room 424E
Washington, DC 20201

Re: Strategies for Improving Parity for Mental Health and Substance Use Disorder Coverage

Dear Ms. Fuller:

Since 1913, the non-profit Massachusetts Association for Mental Health (MAMH) has been a leading voice for the creation of services for people with mental illness. The National Institute of Mental Health (NIMH) has designated MAMH as its Massachusetts partner for the dissemination of science based information about mental illness. MAMH led the successful effort to enact Massachusetts’ comprehensive mental health parity in insurance coverage legislation in 2000 and was a principal partner in achieving legislation in 2008 to broaden the law’s mandate.

MAMH continues to fight for implementation of State and Federal parity laws, regulations, and policies. It is an active partner in the Massachusetts Mental Health Parity Coalition, a group of provider and consumer advocacy organizations committed to making mental health and substance use disorder parity a reality.

We welcome the opportunity to provide written public comment on improved Federal and State coordination related to section 2726 of the Public Health Services Act, section 712 of the Employee Retirement Income Security Act of 1974, and section 9812 of the Internal Revenue Code of 1986 and related sections of State law.

The Massachusetts Parity Law.

Parity requirements were first established in 2000 by An Act Relative to Mental Health Benefits, Chapter 80 of the Acts of 2000 (Chapter 80), and significantly amended in 2008 by Chapter 256 of the Acts of 2008 (Chapter 256).1 Together Chapters 80 and 256 are commonly known as the “Massachusetts Parity Law” and are widely recognized to be among the Nation’s most comprehensive State parity statutes. The Massachusetts Commissioner of Insurance has the authority to implement and enforce both Federal and State parity laws. Mass. General Laws, chapter 26, section 8K.

The Massachusetts and Federal parity laws and the Affordable Care Act (ACA) complement each other.2 For example, the Federal parity law applies to some kinds of plans not covered by the Massachusetts law (e.g., large group, self-insured plans and some Medicaid plans). However, unlike the Federal parity law, the State law requires affected health plans to include a full range of mental health mental health benefits for a 13 biologically-based mental health conditions. Small group and individual plans are covered by the ACA and mental health and substance use disorder treatments are among ACA’s essential health benefits.

Problems we have identified.

Despite the Federal and Massachusetts statutes, and some creative implementation and monitoring by our State regulators,3 enforcement and implementation here has been less successful than we have hoped. The experience here seems to mirror that elsewhere in the Nation.

We have noted several problems.4 First, many consumers and policy holders we have talked with have the impression that although a plan may appear to be in compliance, denials of coverage for mental health services are in fact more common than for other conditions. This may be a consequence of non-quantitative treatment limitations (NQTL) like “fail first” policies (particularly for medication) or more stringent medical necessity criteria. A national online survey of admittedly anecdotal evidence by the National Alliance on Mental Illness (NAMI) indicated that mental health patients were twice as likely to be denied coverage for care on medical necessity grounds as for other conditions.5 Second, it is our experience that the complex enforcement mechanisms discourage patients from complaining about denials of coverage or policy terms. Although government agencies, insurers, and advocacy organizations all make informational materials available in print and online, it is very difficult to simplify the complicated enforcement structure. DOL, HHS, State insurance commissioners, and State Medicaid agencies each have an enforcement role, usually depending on how and where the person is insured. And, according to a recent Health Policy Brief, State officials do not agree on the extent of their authority to enforce Federal law.6 There is no single, specific, simple source for information about how to complain about denial of coverage.

Third, many people who reach out to MAMH complain that they cannot access mental health or substance use services. While this problem may be related in part to need and demand outstripping the availability of some services, we have also concluded that some of the problem is caused by the difficulties finding an in-network provider.7 Low rates of reimbursement may account at least in part for the apparent shortage of mental health practitioners who accept insurance.

Moreover, a survey in 2017 by the Massachusetts Department of Insurance (DOI) demonstrates the wide variances in coverage provided by HMOs and insurance companies, particularly when compared to the Medicaid program. For example, all insurers cover inpatient mental services and crisis stabilization, but only Medicaid covers Programs of Assertive Community Treatment (PACT), considered by many experts to be a critical component of a comprehensive community mental health system and a significant safeguard against institutionalization.8

Our recommendations.

  1. The single most important objective for the Federal government should be vigorous enforcement and oversight of the parity laws. The federal government should encourage rigorous State enforcement and should step in when the State cannot or will not enforce the parity law.
  2. Consumers and patients must have access to clear, simple and understandable information. States and the Federal government should work together to insure, for example, that
    • Policies and informational materials clearly disclose what is covered;9
    • Insurers provide up to date and comprehensive lists of eligible network providers;
    • Appeal and grievance process and timelines are clearly presented; and,
    • Criteria for denial, particularly when based on non-quantitative treatment limitations (NQTL) like prior authorization, utilization review, or fail first polices, are clearly explained.

Thank you for the opportunity to comment. Sincerely,

Danna Mauch, PhD President and CEO
CC: Attorney Robert Fleischner, MAMH Board Member
CC: Ambassador (Ret) Barry White, MAMH Board Chair

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1 The parity law was further amended in 2010 by An Act Relative to Insurance Coverage of Autism, expanding the scope of mandated coverage for treatment of autism spectrum disorders. Chapter 207 Acts of 2010, amending Mass. General Laws chapter 32A section 25.
2 The Federal law does not preempt the Massachusetts law. State insurance laws that do not conflict with the Federal law remain in full effect.
3 SAMSHSA has recognized several efforts of the Massachusetts Division of Insurance including the convening of a working group with carriers and providers to create standard forms for behavioral health coverage. “By creating this workgroup and scheduling several conversations with key providers and consumers, the Massachusetts Division of Insurance was able to obtain steady feedback and create a product that was consistent with a shared understanding of parity.” SAMSHSA, Approaches to Implementing the Mental Health Parity and Addiction Equity Act: Best Practices from the States (2016) available at https://store.samhsa.gov/shin/content//SMA16-4983/SMA16-4983.pdf
4 Many of our observations are similar to the public comments noted in the Mental Health and Substance Use Disorder Parity Task Force: Final Report, available at https://www.hhs.gov/sites/default/files/mental-health-substance-use-disorder-parity-task-force-final-report.pdf.
5 NAMI, The Long Road Ahead: Achieving True Parity in Mental Health and Substance Use Care (2015) available at https://www.nami.org/About-NAMI/Publications-Reports/Public-Policy-Reports/A-Long-Road-Ahead/2015-ALongRoadAhead.pdf.
6 Health Policy Brief, Enforcing Mental Health Parity (Nov. 9, 2015) available at http://healthaffairs.org/healthpolicybriefs/brief_pdfs/healthpolicybrief_147.pdf. As noted in the text, this is not an issue in Massachusetts.
7 NAMI, Out of Network, Out of Pocket, Out of Options: The Unfulfilled Promise of Parity (2016) available at https://www.nami.org/About-NAMI/Publications-Reports/Public-Policy-Reports/Mental-Health-Parity-Network-Adequacy-Findings-/Mental_Health_Parity2016.pdf.
8 Mass. DOI, Behavioral health Services Survey Responses (2017), available from MAMH.
9 The DOI survey cited in note 8 is an example of the kind of information about behavioral health coverage by all insurers that should be widely available to the public.
Content created by Assistant Secretary for Public Affairs (ASPA)
Content last reviewed on October 17, 2017