ABA Health eSource
June 2010 Special Edition

Healthcare Reform and Mental Health

By David K. Ries, Human Capital Specialists, Inc., San Diego, CA

AuthorThough there are few provisions of the Patient Protection and Affordable Care Act that directly address mental health issues, the sweeping legislation will impact behavioral health care in the United States. The healthcare reform legislation will drive millions of currently-uninsured Americans into managed care and will entitle them to a minimum set of behavioral health care benefits. The legislation’s repeated emphasis on quality-of-care measures and on evidence-based treatment will also increase the need for proven approaches in mental health care. Also, through grants programs and through Medicare and Medicaid spending, the federal government will encourage greater integration of behavioral health treatment into medical care.

New Law’s Interaction with Parity

The healthcare reform legislation comes at a time when the most recent federal law on behavioral health coverage is still being implemented. The Mental Health Parity and Addiction Equity Act of 2008 requires health insurance issuers and group health plans that offer coverage of mental health and substance abuse treatment to make that coverage available in a manner comparable to the coverage offered for medical benefits. 1 The federal law was passed following the adoption of similar parity statutes by states. State mental health parity laws that exceed the federal parity statute were not pre-empted, nor were the myriad state laws that require coverage of specific mental health conditions and substance abuse disorders.

The federal parity law will extend to the state-based insurance exchanges that will be established under the healthcare reform law by 2014. 2 The law extends federally mandated mental health parity to qualified plans that participate in the insurance exchanges, “ in the same manner and to the same extent” as health insurance issuers and group health plans. 3 Small employers are exempt from parity, as it applies only to plans covering over fifty employees. 4 This exception would seemingly apply to the insurance exchanges as well. However, the parity law and the healthcare reform law define “small employer” differently, in that the health insurance exchanges will be open to employers of as many as one hundred employees. 5 So businesses in the exchanges sized between fifty and one hundred employees will be subject to mental health parity requirements. States may seek to open their insurance exchanges even more broadly in 2017, and larger employers participating in an exchange would be bound by the parity law at that time as well. 6

Drawing a Baseline for Behavioral Health

Under the healthcare reform law, participation in the insurance exchanges will be limited to “qualified health plans” that achieve minimum standards established by the Secretary of Health & Human Services. 7 The legislation guarantees that coverage acquired through the exchanges, or offered by any insurer who participates in an exchange, will include mental health and substance abuse treatment benefits. Behavioral health treatment is a designated “essential health benefit” that will be further defined by the Secretary of Health and Human Services. 8 Congress has made two requirements of these essential benefits: emergency services must be provided without a pre-authorization requirement, and the cost-sharing requirement for essential health services must be the same whether provided in-network or out-of-network. 9

The reform legislation otherwise provides only guidance as to how regulations defining the essential benefits should be devised. Nothing in the statute gives reason to believe that essential behavioral health benefits will be defined to exceed current state requirements for the coverage of serious mental illnesses. Regulations implementing the law will ensure that the essential benefits are those “ benefits typically covered by employers” and are “ equal to the scope of benefits provided under a typical employer plan.” 10 This approach may lead to a federalization of minimum standards of behavioral health care based on the coverage that is already required by a number of states, such as coverage of treatment for serious mental illnesses or for alcohol dependence.

State coverage mandates that are not currently applied to individuals or small plans may nevertheless be enforced through the exchanges if they are defined as essential health benefits. Existing state mandates will not be pre-empted by the new healthcare legislation. For example, an increasing number of states are requiring insurance coverage of autism. Regardless of whether coverage of autism is deemed by federal regulators to be an essential mental health benefit, those state mandates will stand. 11 If states require such coverage above federally-defined essential benefits for plans sold to individuals and small employers in the exchanges, funds will need to be contributed to help individuals cover the costs of those benefits. 12

Ready, Set, Report

The healthcare reform legislation seeks to enhance mental health care in the United States by promoting evidence-based treatment of behavioral health conditions. Like other healthcare providers, under the new law mental health professionals will be asked to participate in more outcome measurements. Mental health providers will also need to demonstrate the effectiveness of treatments they provide. This will genuinely reform mental healthcare, as mental health providers are not accustomed to the level of scrutiny required by the legislation.

The law provides grants to universities with associated mental health facilities or treatment providers to establish “National Centers of Excellence for Depression.” 13 One such program will be designated as a coordinating center to gather and then disseminate research findings on the successful prevention or treatment of depressive disorders. The coordinating center will release treatment standards and clinical guidelines and shall “establish and maintain a national, publicly available database to improve prevention programs, evidence-based interventions, and disease management programs for depressive disorders .” 14

This effort reflects the law’s overall approach to using research, such as comparative clinical-effectiveness studies, 15 and quantifiable measurements to promote evidence-based treatments and quality improvement throughout the United States’ healthcare system.

Two years after enactment of the law, health insurers and group health plans will begin to annually report on quality improvement measures to the Secretary of Health & Human Services. 16 These reports will be publicized by the Secretary via the internet. Though not previously required by federal law, insurance companies have been performing quality improvement activities and reporting on them for the purposes of accreditation. Accreditation is required by many state insurance departments in order to be properly licensed to offer health insurance coverage. The significance of this provision of the federal legislation is in making the information available to consumers at the same time that individuals and small businesses will be empowered as consumers of health coverage through the insurance exchanges.

Though most states already require private accreditation, the health insurance to be offered through the exchanges will be subject to Healthcare Effectiveness Data and Information Set (HEDIS) measures and Consumer Assessment of Healthcare Providers and Systems (CAHPS) surveys. 17 HEDIS assesses the performance of managed healthcare organizations and is used by the National Committee for Quality Assurance in granting its accreditation upon managed care organizations. 18 CAHPS is an initiative of the federal Agency for Healthcare Research and Quality to survey patients' experiences with health care. 19 That agency will be enhanced under the legislation, as it is tasked with disseminating work of a newly-created government-funded non-profit organization, the Patient-Centered Outcomes Research Institute. 20 The institute will “assist patients, clinicians, purchasers, and policy-makers in making informed health decisions” through comparative clinical-effectiveness research. 21

The increased use of these quality measurements will impact mental healthcare, which has largely escaped such measures of effective care management. For a long time, mental health professionals resisted management because mental health outcomes were deemed more difficult to measure than medical outcomes, with no obvious corollaries to such measures as cholesterol levels. There are currently only six HEDIS measures related to either mental health or substance abuse treatment, such as the management of antidepressant and ADHD medications. 22 Only recently was a CAHPS survey introduced for use in studying behavioral health services. 23 Broader application of these measures can only improve the quality of care for mental health patients. Specifically, application of HEDIS to the insurance sold in the exchanges will focus attention on the care patients receive immediately following a discharge from inpatient treatment. Mandated use, and public reporting, of CAHPS surveys will lead to greater accountability for mental health providers.

Headed for Home

The healthcare reform law’s spending provisions encourage the integration of mental health treatment within primary medical care. The legislation does so most directly with grants to establish demonstration projects for the provision of coordinated and integrated services to adults with mental illnesses who have co-occurring primary care conditions or chronic medical diseases. 24 These projects will deliver care through the co-location of primary and specialty care services in community-based mental and behavioral health settings .

This emphasis on integration of mental health care is achieved in the context of broader promotion of patient-centered treatment models. One such model which finds support in the Reform Act is the “medical home”, which is also a valuable means for enhancing mental health treatment. Locating specialists – like mental health professionals, among others - into a primary care setting is seen as a potentially effective way to identify and manage multiple treatment needs and then coordinate patients’ care. The legislation promotes medical homes through establishment of a Center for Medicare and Medicaid Innovation within the federal Centers for Medicare & Medicaid Services. 25 This new agency will “test innovative payment and service delivery models” while giving preference “to models that also improve the coordination, quality, and efficiency of health care services”, with the first example provided by Congress being “patient-centered medical home models .”

The legislation further promotes this treatment model by providing grants to states to have Medicaid patients designate medical homes for their care. Programs made available by this funding will be open to Medicaid patients who experience a chronic medical condition in addition to a “serious and persistent mental health condition.” 26 The new law increases funding to community health centers to serve as medical homes, building on support already provided to these clinics under the 2009 economic stimulus legislation. 27 Providing care in these community-based clinics is an important way to reduce hospitalizations for mental health or substance abuse problems.

Finally, although no money is allocated by the legislation, the Secretary of Health & Human Services is “encouraged” under the law to continue efforts to improve the screening and diagnosis for post-partum depression, as well as to evaluate new treatments for the condition. 28


The intent of the healthcare reform law for mental health can be gleaned from the statute itself. The act would have mental health treatment services integrated into primary care settings, and have persistent or chronic conditions addressed by treatment providers who simultaneously treat long-term medical problems. Mental health providers who use best practices would be rewarded with greater public reimbursements and have more opportunities within private plans’ provider networks. Consumers would be guaranteed the coverage they most need and would use quality standards to choose the level of coverage they want and can best afford. Whether these goals become the actual results of the healthcare reform legislation will depend on numerous regulations that must still be promulgated and will depend to an even greater extent on how private actors – individual consumers, insurers, employers and healthcare providers - choose to make use of the law’s provisions.

David K. Ries is chief legal counsel for San Diego-based Human Capital Specialists Inc. (www.hcspecialists.com), a management-consulting firm that specializes in the healthcare industry and advocates for improvements within the system. Contact him at (619) 696-9655 or dries@hcspecialists.com.

1 29 U.S.C. § 1185a. Final regulations defining this federal mandate have yet to be issued. 75 Fed. Reg. 5410-01; 29 C.F.R. § 2590.712. Meanwhile, a lawsuit in federal court is seeking to prevent those regulations from being adopted. See Coalition for Parity, Inc. v. Sebelius ,  __ F. Supp.2d __, 2010 WL 1253172 ( Dist. D.C., 2010) .
3 PPACA § 1311 (j) “APPLICABILITY OF M ENTAL H EALTH P ARITY . Section 2726 of the Public Health Service Act shall apply to qualified health plans in the same manner and to the same extent as such section applies to health insurance issuers and group health plans.”
4 29 U.S.C.A. § 1185a(c)(1): “Small employer exemption.”
5 PPACA § 1304(b)(2).
7 PPACA §1311 (c)(1) ”The Secretary shall, by regulation, establish criteria for the certification of health plans as qualified health plans.”
8 PPACA § 1302(b)(1)(E).
9 PPACA § 1302(b)(4)(E).

PPACA § 1302(b)(2).

11 Insurance coverage of autism spectrum disorders is required in over a dozen states. Some states specifically require this coverage as mental health treatment. (See California Health & Safety Code § 1374.72 [benefits for severe mental illnesses] and Wisconsin Stat. 632.895(12m) [requiring coverage of “treatment for the mental health condition of autism spectrum disorder”].) Other states define autism according to the Diagnostic and Statistical Manual of Mental Disorders as a “pervasive developmental disorder”. (See Illinois 215 ILCS 5/3562.14; Pennsylvania 40 P.S. § 764h; Connnecticut Gen.Stat. § 38a-514b; and Louisiana Rev.Stat.Ann. § 22:1050.) Some state statutes may allow autism to be defined as a medical condition. (See Indiana Code 27-13-7-14.7 [describing autism as a “neurological condition”] and Nevada Rev.Stat. § 689A.0435 [describing autism as “a neurobiological medical condition”.] With some disparity amongst the states’ legislation, autism coverage could be required as an essential health benefit without being specifically designated as a mental health benefit.
12 PPACA § 1311(d)(3)(B)(ii).
14 42 U.S.C. § 520B(d).
15 Comparative effectiveness studies are promoted by the reform legislation as a way to inform decisions on controlling healthcare costs. Studies of the effectiveness of health treatments are prevalent, but studies of comparative effectiveness are less so. For example, Prozac and Zoloft are both clinically proven to treat depression effectively, but a comparative effectiveness study would question which one performs better.
17 PPACA § 1311 (c)(1)(D).
18 See http:// www.ncqa.org > “HEDIS & Quality Measurement”.
19 AHRQ is an agency of the Department of Health & Human Services whose mission is “to improve the quality, safety, efficiency, and effectiveness of health care for all Americans.” (See http://www.ahrq.gov/about.)
20 PPACA §§ 6301-6302.
21 PPACA § 6301(c).
22 Other HEDIS measures relating to behavioral health are: follow-up after hospitalization for mental illness, mental health utilization, identification of alcohol and drug services, and initiation and engagement of alcohol and other drug dependence treatment.
23 The new tool is the ECHO Survey, for “ Experience of Care and Health Outcomes.” The survey collects ratings of behavioral health care treatment, outcomes, and plans from consumers of those services. See http://www.cahps.ahrq.gov > “Survey Instruments” > “Ambulatory Care Surveys” > “ECHO Survey”.
24 PPACA § 5604.
25 PPACA § 3021.
26 PPACA § 2703, 42 U.S.C. § 1945 (h)(1)(A)(ii).
27 PPACA § 10503.

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