Mental Health America | Making Health Coverage Work for Us: The Road to Full Access to Care

In September, Mental Health America held its annual conference in Washington, DC, bringing together thousands of providers, government officials, media representatives, advocates, and members of the community to address mental health needs, care, equity, and social influences. Key topics included community responses to crises, local solutions for health equity, emerging trends in mental health treatment, substance use, and youth-driven solutions. 

Zuckerman Spaeder partner D. Brian Hufford participated in the Affiliate Day keynote, “Making Health Coverage Work for Us: Encouraging News on the Road to Full Access to Care,” alongside fellow affiliates Lisa M. Gomez, Assistant Secretary for Employee Benefits Security of the U.S. Department of Labor (“DOL”); Joe Feldman, Founder and President of Cover My Mental Health; Nora Fleming, Associate Director and Manager of the Mental Health Parity Newsroom Collaborative at The Carter Center; and Tim Clement, Vice President of Federal Government Affairs of Mental Health America.

During their session, the panel provided practical strategies for engaging legislators and insurance regulators to improve access to mental health care. Below, Brian shares several key takeaways from questions posed to the panel.

We’re out of a global pandemic, facing an upcoming presidential election, dealing with ongoing economic challenges. Where do we stand with mental health care access today? What have been significant, recent occurrences? 

The most important recent development in the battle for mental healthcare access happened shortly before the conference, when the DOL released its long-awaited new regulations on mental health parity (Final Rules under the Mental Health Parity and Addiction Equity Act (“MHPAEA”)). There is still much work to be done implementing and enforcing the regulations, but the recent commitment shown by the DOL is significant. 

As we go forward, what are the three major issues that will have the most significant impact on mental health care access?

1. Reduced Reimbursements. Studies show that network reimbursement rates for behavioral health services are dramatically lower than for analogous medical and surgical providers. In-network medical/surgical providers are paid, on average, 22% higher than behavioral health providers, when using Medicare rates as a comparison (125% of Medicare vs. 103%). This discrepancy grows the deeper the data is analyzed. Medical/surgical specialists, for example, are reimbursed 25% higher amounts than psychiatrists (135% of Medicare v. 108%) and 29% more than psychologists (135% of Medicare v. 105%). Even Physicians’ Assistants are paid 18.7% higher rates than psychiatrists and 22.4% higher than psychologists, while Nurse Practitioners are paid 8.2% more than psychiatrists and 11.5% more than psychologists. This problem drives network inadequacy, as discussed below.
2. Inadequate Networks. To ensure access to behavioral health care, there must be a sufficient number of providers available to treat those in need and, critically, they must be included in the networks offered by health insurance companies. Unfortunately, this does not appear to be the case. Studies have shown that patients go out-of-network 3.5 times more often to see behavioral health clinicians than medical/surgical clinicians. One survey of 396 providers in a network indicated that only 56 offered appointments (14%) and that the remaining 342 (86%) were unreachable, not in-network, or not accepting new patients. This phenomenon – often called a “ghost network” -- is one of the areas that the new regulations try to address.
3. Affordable Care Act (“ACA”) Anti-Discrimination Provision. This provision of the ACA prohibits health plans from discriminating against any health care provider who is acting within the scope of that provider’s license or certification under applicable State law. It does not, however, require health plans or issuers to contract with any willing provider, leaving it up to the plans’ administrators to decide who should be in-network and, critically, what rates they will pay. Although the law allows health plans to establish “varying reimbursement rates based on quality or performance measures,” and this appears to prohibit reimbursement rate variations that are not based on “quality or performance measures,” ambiguity around this issue remains. 

How can the federal government help at the state and individual level? 

Many health insurance plans are not subject to state laws, only federal regulations. This comes down to whether a plan is fully-insured, i.e., a health insurance company is paid premiums to provide actual insurance by covering medical expenses directly, or self-funded, where an employer pays administrative fees to a health insurance company to serve as a TPA to administer the plan, but the employer actually pays for the medical expenses out of its own assets. Under the Employer Retirement Income Security Act (“ERISA”), the federal law governing private-employer benefit plans, all state laws are preempted with regard to self-funded plans (while state insurance laws still apply to fully-insured plans). This means that only federal laws and regulations apply to such self-funded plans, leaving the DOL – a federal agency – the primary source of regulation and oversight. The DOL is committed to fulfilling this function, but it simply doesn’t have the resources necessary to meaningfully oversee the thousands of plans that provide more than 180 million Americans’ health coverage.

This issue often comes into play when people are confronted with improper denials of coverage for services, or receive underpayments, and file grievances with the state regulators, who seemingly would be in the best position to address the issue. However, all too often, the grievances come out of self-funded plans and the state regulators are forced to defer, since they simply do not have jurisdiction over the plan. Ideally, the laws could be changed to ensure state insurance laws (including laws prohibiting bad faith insurance practices) could apply to all health insurance plans, whether fully-insured or self-funded. But in the absence of that, we need to give proper resources to the DOL and it must coordinate closely with state and local regulators to provide proper oversight. At the same time, the large employers who offer the self-funded plans need to become more engaged in overseeing their own health care plans to ensure that their administrators are ensuring their employees can access the behavioral health services that they need.  

If state and federal oversight isn’t effective or fast enough, private legal recourse may be an option. Can you tell us about the origin of the Wit case and where it stands today?

Sometime after 2010, we were approached by a number of lawyers and families from across the country who were concerned that the level of care coverage guidelines that United Behavioral Health (“UBH”) was using to adjudicate their behavioral health claims were financially motivated and overly restrictive. We spent years researching the relevant facts and law and, in 2014, brought two putative class action lawsuits against UBH. These cases are collectively referred to as Wit v. UBH. Following a class action trial in 2019, the U.S. District Court for the Northern District of California issued a landmark decision against UBH that former Congressman Patrick Kennedy, the original sponsor of MHPAEA, called “the Brown v. Board of Education for the mental health movement.” The court issued detailed findings on the generally accepted standards of care for evaluating the medical necessity of behavioral health treatment and how UBH’s guidelines deviated from those standards—and, importantly, it found that UBH’s guideline-development process was driven by UBH’s financial self-interest, rather than the interests of the health plan members. The court, therefore, ordered UBH to stop using its internal guidelines, to instead use publicly available guidelines from the behavioral health community, and to re-adjudicate the class’s benefit claims under those new guidelines. It also appointed a monitor to oversee UBH’s implementation of those orders. 

UBH appealed, and the 9th Circuit reversed some aspects of the district court’s class certification and liability holdings. The case remains in the appellate court, which is currently analyzing the plaintiffs’ motion for en banc review. 

What impact does this case have on the future? What more needs to be done? 

Although Wit itself is ongoing, the case has already been impactful for several reasons. It educated the public and policymakers about the way that health insurers’ clinical guidelines drive behavioral health insurance coverage decisions, and the problems caused by allowing a health insurer’s financial interests to impact its guideline development process. Indeed, even before the trial court entered judgment in Wit, UBH abandoned its use of the challenged guidelines. Since then, several states have enacted laws designed to prevent health insurers from using overly restrictive, proprietary clinical guidelines to make medical necessity decisions.  

At the same time, however, the 9th Circuit’s reversal in Wit demonstrates that ERISA remains an exceedingly difficult statute to enforce. Individual suits are relatively rare because the legal fees often far exceed the value of denied benefits, making individual litigation irrational for most insureds and attorneys. Class actions might address this problem, but they are exponentially more expensive to litigate and few law firms are willing to take such cases on a contingent fee basis. For example, Zuckerman Spaeder has invested extensive time and financial resources in Wit for more than a decade, still without guarantee of payment. Although we were willing to assume this risk because of our strong shared belief that this cause warrants it, I fear that few other firms will do so. In the absence of such enforcement, DOL action becomes even more critical.