The concept of behavioral health (BH) parity has been enshrined in federal law for nearly 30 years. Monitoring payer compliance with it, however, has been a challenge for about as long. But recent updates to BH parity legislation—on the heels of a high-profile lawsuit against a major health plan—may improve enforcement of parity rules. And that could have major implications for payers, patients, and providers.
How We Got Here
BH parity rules mandate that insurance coverage for mental health and substance use disorder services should be equal to that for physical health services. BH parity was first memorialized in federal legislation through the 1996 Mental Health Parity Act, but it was the 2008 Mental Health Parity and Addiction Equity Act (MHPAEA) that expanded the 1996 law and closed loopholes in it. At its core, MHPAEA aims to prohibit coverage limitations that are more restrictive to BH benefits than to traditional physical health/medical benefits.
While benefit parity tends to be the most heavily discussed component of BH parity, embedded within parity legislation are additional, equally important requirements for provider network management, patient access, and reimbursement.
1. Payers are accountable for developing adequate BH provider networks to increase access to care for patients.
To maintain compliance with MHPAEA, the methods used by payers to evaluate the size and composition of provider networks must be applied equally to BH and physical health services. For example, if a payer implements measures to grow their primary care network to reduce wait times, they would be required to evaluate wait times for BH services and apply similar measures to expand their BH provider network. Additionally, standards and time frames for BH contracting and credentialing must be comparable to those of the physical health network.
Parity in network adequacy standards does appear to have had a positive impact in increasing network size. A 2022 industry survey by American Health Insurance Plans (AHIP) found that commercial health plans increased the number of in-network BH providers by an average of 48% in three years. While this report is encouraging, a more nuanced view of provider attributes—license type, location, gender, language, culture, etc.—is needed to determine how well the provider network fits the member population’s needs.
2. Providers are entitled to commensurate reimbursement.
While MHPAEA does not require equal reimbursement for BH and physical health providers, the methods used by payers to determine reimbursement must be the same. For example, if physical health providers are paid 5% more in a high cost-of-living area to ensure network adequacy, BH providers must be offered the same premium.
Reimbursement parity goes a step further in some states that require commercial healthcare payers to set reimbursement rates for advanced practice providers (nurse practitioners and physician assistants) equal to those of physician-level providers for the same services. Although license-level reimbursement parity is not tied to MHPAEA, the state legislation in conjunction with the MHPAEA encourages market-commensurate compensation for advanced practice BH providers.
Looking Ahead: More Impactful Legislation
To date, the impact of parity legislation on BH treatment access and provider network quality has been mixed. While access to care has undeniably improved, ultimately, the provisions of MHPAEA have proved burdensome for payers to operationalize and, due to the subjective nature of some of the requirements, difficult for regulatory entities to monitor and enforce.
In 2021, a lawsuit against UnitedHealthcare found the methodology used to determine out-of-network reimbursement did not align with parity requirements, prompting rate adjustments for both out-of-network and in-network providers in multiple states. While it is unfortunate that identifying and rectifying a parity violation required a lengthy federal and state investigation, it is encouraging to see a positive outcome resulting from enforcement of MHPAEA.
Building on that momentum, updates to MHPAEA were proposed in 2023 that are intended to further refine and clarify key provisions around parity requirements for network management. The proposed rules outline metrics for network composition in four areas that will help to objectively identify deficits in provider networks, as well as detect potential violations of MHPAEA:
- Out-of-network utilization: Geographic areas with disproportionately high out-of-network utilization could indicate an insufficient network of contracted providers.
- Percentage of in-network providers actively submitting claims: Discrepancies between the number of providers published in the network directory and the number of providers actively submitting claims could be indicative of a “ghost network” that cannot support demand.
- Time and distance standards: Measuring the time and distance members must travel to access care is an important indicator of true access and availability. This standard has been utilized by Medicare Advantage plans to measure network adequacy for many years.
- Reimbursement rates: Discrepancies in reimbursement between BH and physical health providers (using Medicare as the benchmark) could indicate disparate reimbursement levels.
If finalized, these updates to MHPAEA will hold payers accountable by measuring network size based on active providers, monitoring the ratio of in-network to out-of-network utilization, and evaluating reimbursement to ensure equivalency. While the concepts behind the proposed updates are not new, the advancement of methods to monitor compliance with parity ultimately serves to protect patients’ rights, as well as advance the progress we have made toward equitable access to BH services over the past three decades.
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