On eve of final parity rule’s release, Kennedy says battle isn’t over

At a November 7 hearing of the Senate Judiciary Subcommittee on Oversight, Federal Rights, and Agency Action, former Congressman Patrick J. Kennedy (D-RI), author of the parity law, which was enacted five years ago, said that when the final rule comes out – as it is coming out today, November 8 – the battle won’t be over. Too many people have been harmed by the delay already, and the next step – implementation and enforcement – is crucial.

The hearing was called “Justice Denied: Rules Delayed on Mental Health and Auto Safety,” and Kennedy testified on the consequences of the delay in a final rule for the Mental Health Parity and Addiction Equity Act (MHPAEA).

During the years since the law was passed, many consumers and families have been harmed by discriminatory treatment at the hands of insurance companies, he said.

Kennedy stressed the need for parity for veterans in particular. “With Veterans Day just around the corner, it is unconscionable that our returning heroes, many of whom carry brain injuries sustained in battle, are coming home to unequal care,” he said. “People call Traumatic Brain Injury and Post-Traumatic Stress ‘invisible wounds,’ but they demand a visible response. “

The longer the wait for a final rule, the longer patients have had inadequate treatment, he said. Kennedy thanked Sen. Richard Blumenthal (D-Connecticut), chairman of the subcommittee holding the hearing, for the chance to demand justice. “This is an issue of basic fairness and, with the rule expected soon, we must seize this opportunity to finally end discrimination experienced by thousands of our fellow Americans.”

Last month Kennedy launched the Kennedy Forum, marking the 50^th anniversary of President Kennedy’s signing of the Community Mental Health Act.

Five years

“A lot of ambitious laws get passed without anyone really being sure how they will be enforced,” Kennedy said in his prepared testimony. But waiting five years for a final rule on parity – the law was passed and signed in 2008 – is a particularly bad example of this kind of failure.

Parity emerged as a concept because people with mental health diagnoses were paying higher copays for mental health than for other medical problems, and facing arbitrary limits on services.

In 1996, President Clinton signed a parity law that made some real improvements, but was still limited. Legislators needed to resolve some problems. “On the House side, where I sat, and here in the Senate, those of us working on the bill heard a steady stream of stories – from the tales of individuals and families left with high bills and no access to the treatments they needed to the fears of insurers and employers that the costs of parity would be unbearably high,” said Kennedy.

So finally, the MHPAEA was passed and signed, and it was a good balance of competing interests, said Kennedy. But instead of implementing the vision, the MHPAEA “entered a kind of twilight zone in which everyone with an interest in it was left to imagine what it meant.” With the Departments of Health and Human Services, Labor, and the Treasury all having authority over the law, developing regulations was not simple.

Interim final rule

An interim final rule was finally issued on February 2, 2010. It was a strong rule with provisions governing “non-quantitative treatment limitations,” such as utilization reviews that are more stringent for mental health and addiction than for medical/surgical conditions. The insurance industry fought those provisions, saying they went beyond the scope of the law. The treatment field saw services like residential treatment and their decisions about what treatment was necessary jeopardized by insurance companies, sometimes in blatant defiance of the interim final rule. Whether those NQTLs and medical necessity provisions will be included in the final rule won’t be known until the federal government releases it later today.

“We have been waiting for the final rule ever since then,” said Kennedy of the interim final rule. “What has happened during that period? The answer isn’t pretty. The insurance industry has struggled to understand its obligations, and its response has been patchy.” Some insurance companies responded well, but others have taken the delay in a final rule “as an opportunity to continue or, indeed, institute practices that meet neither the spirit nor the letter of the law,” said Kennedy. “But with the rule still not final, they appear to have reasoned, who’s to tell them not to. The result is that some families have faced the very discriminatory practices the law was meant to end.”

One of the specific issues is this: what are people with mental health or substance abuse problems spending out of their own pocket even if they have insurance, do they have to go out of network or travel long distances, and is that experience different from someone with, for example, diabetes who is covered by the same plan?

If there are any differences, said Kennedy, people have to say, “That’s not parity.”

Senator Blumenthal’s call to action is that lack of access to mental health and substance abuse treatment “kills.” Senator Blumenthal added that “the final rule will not be the final word.”

Enforcement

Whatever the final rule says, it will not be the end of the struggle. Perhaps Carol McDaid, principal with Capitol Decisions and a leader in the many-years battle for the MHPAEA, summed up the feeling after Thursday’s hearing best. “I am eagerly awaiting the release of a final rule,” she told Behavioral Healthcare Thursday afternoon. “But I know the final rule will be the beginning and not the end of a continued effort to get the law fully implemented and enforced.”

Stay tuned for more followups on this today.