A New Federal Rule Can Help Ensure Patients Get the Behavioral Health Care They Need

About one of four adults in the United States reports having a mental health condition, yet many struggle to obtain care due to high costs and limited access to providers. A federal law, the Mental Health Parity and Addiction Equity Act (MHPAEA), aims to safeguard access to behavioral health treatment for people with private health insurance by prohibiting insurers and health plans from putting greater limits on access to behavioral health services than they do for other medical care. In most cases, state insurance regulators are responsible for monitoring insurers’ compliance with MHPAEA within their state’s individual and group markets. The law has bipartisan support and states as varied a Georgia and California have strengthened their ability to enforce its standards.

Last fall, the Biden administration finalized a rule updating standards for MHPAEA, including new requirements for “non-quantitative treatment limits” (NQTLs) — that is, treatment limits that cannot be easily measured yet can impose significant barriers to getting care. An NQTL could be, for instance, a requirement to obtain prior authorization before care is provided, obliging consumers to try lower-cost treatment options before a higher-cost one is approved, or limiting the list of prescription drugs covered by a plan. Although protections in the new rule have drawn a legal challenge from some stakeholders who view them as burdensome, the changes reflect the approach a growing number of states are taking to implement the law.

Requirement to Prove Parity with Outcome Data

To comply with MHPAEA, the new rule requires insurers to collect and analyze outcome data, such as rates of out-of-network utilization and denied claims, to assess whether the treatment limits imposed on services make it harder for consumers to get behavioral health care. A material difference between outcome data for behavioral health services and other care would reflect unequal access and be a strong indicator that an insurer has not complied with the law. Insurers would then be required to take reasonable actions to improve access.

Some states are already using outcome data to identify unequal access and request information on insurers’ practices. The new rule strengthens regulators’ hands because a difference in data obligates insurers to either justify the treatment limit that is creating barriers to access or remove the limit.

A Heightened Role for Insurers’ Comparative Analyses

Under the new rule, insurers must document a six-step analysis for each NQTL, demonstrating that their approach to constructing and applying the limit for behavioral health services is comparable to their approaches with other medical services. Federal law requires insurers to turn over these analyses to regulators only when requested. Some states, such as Arizona and Maryland, require all insurers selling coverage in their states to regularly submit their comparative analyses. However, state and federal regulators have reported that these analyses often fail to provide sufficient information to assess an insurer’s compliance with parity law requirements.

In the past, some states had limited options to respond to insurers that provided deficient analyses. Under the new rule, states’ authority is clearer: an insurer that hasn’t provided sufficient analysis justifying its NQTL can be found noncompliant with MHPAEA and barred from using the unjustified limit.

Special Focus on Provider Networks

The rule recognizes ongoing problems for consumers seeking in-network care. A recent study documented out-of-network use for behavioral health care that is many times higher than for other medical care. The rule therefore singles out provider networks for attention by designating insurers’ standards for “network composition” as its own treatment limit. Under this limit, regulators can review how insurers determine reimbursement and credentialing standards for in-network providers, as well as the insurers’ procedures for ensuring adequate networks. Regulators also can review how insurers determine rates paid to out-of-network providers. Consumers that must use out-of-network providers pay more out-of-pocket if their insurers’ payments cover only a small portion of the provider’s bill.

States are increasingly requiring insurers to report provider reimbursement rates to assess their efforts to build adequate networks and ensure equal access. New Hampshire was the first state to examine insurer reimbursement rates. More recently Washington used reimbursement rate data to guide their oversight. The new rule requires states to look at provider reimbursement rates and other factors to assess networks and expands the scope of actions insurers may be expected to undertake to show they’ve made reasonable efforts to provide adequate access to in-network providers.

If data reveal material differences in access to in-network providers — for example, greater use of out-of-network providers for behavioral health when compared to other services — the rule says insurers cannot rely solely on provider shortages to explain the differences. Instead, insurers must take reasonable actions to mitigate that disparity, which could include:

• increasing reimbursement
• streamlining credentialing
• reaching out to nonparticipating providers to bring them into the network
• helping people find in-network care
• expanding availability of telehealth services to provide access in areas with shortages
• ensuring provider directories are accurate.

Looking Ahead

The new federal rule builds on progress made in states across the political spectrum and boosts their efforts by assigning greater weight to outcome data and the requirement to provide comparative analyses. In addition to strengthening regulators’ ability to oversee and enforce parity, the outcome data can also show the public where plans are falling short and the areas where insurers need to improve.