II. Then and Now: Overview of Mental Health Conditions and Treatments
Today in the U.S., nearly one in five adults live with mental illness.[2] Most people who commit suicide have a mental health condition.[3] And people who struggle with substance abuse have little power to change their habits because repeated drug use literally causes the brain to change and challenges self-control.[4]
Mental health illness is not a new phenomenon.[5] Historically, people have attributed mental health problems and substance use as signs of divine punishment, demonic possessions, or punishment for the sins of their parents, even though substance use dates as far back as to antiquity, where people consumed opium for medical and recreational use.[6] Indeed, findings of 5,000-year-old skulls with burr-like holes in them (“to release demons”) suggests that humans have, for ages, endured and attempted to treat mental health illnesses.[7] Notably, similar practices in the U.S. continued until the late 1960s with lobotomy, which involves “making holes in the skull, removing some brain tissue, and severing the connections between the frontal lobe and the thalamus” to “reduce abnormal stimuli.”[8]
The U.S. has a long history of demonizing people who struggle with mental health illnesses, which discourages those people from obtaining help. Thus, it is important to note that, while it may seem that mental health crises are on the rise, it is plausible that these numbers have always been high and that those who have always needed treatment have just been shamed into suppressing them. Before 1956, mental health treatment in the U.S. led to either being locked in a mental institution or in the patient's home.[9] We now know that such isolation and loneliness can wreak havoc on an individual’s physical, mental, and cognitive health.[10]
Although treatment progressed when the U.S. began deinstitutionalizing mental health care by creating community health-centers to address the scarcity of mental health services,[11] due to lack of funding, treatment did not grow at the rate and intensity in proportion to the number of individuals suffering from mental conditions.[12] Many Americans were skeptical of mental health illnesses, and for those who gave any grace to even consider it a health-illness, many viewed it as a “lesser” illness, questioning whether claims for insured mental health treatments were even legitimate.[13] This prejudice led to mental health discrimination on many fronts, including access to health care,[14] leaving many who sought treatment to suffer on their own.
In 2019, nearly 52 million adults in the U.S. experienced some form of mental illness,[15] and about 40.3 million people aged 12 or older had a substance use disorder.[16] Mental health conditions, substance use disorders, and overdose deaths were intensified by the COVID-19 pandemic. The Centers for Disease Control and Prevention (CDC) reported that between August 2020 and February 2021, the percentage of adults exhibiting symptoms of anxiety or depressive disorder jumped from 36.4 percent to 41.5 percent.[17] Substance use disorder and overdose also increased.[18] The pandemic also exacerbated disparities in the opioid epidemic: while Black communities have similar rates of opioid misuse as the general population, Black communities have experienced the greatest increase in opioids overdose deaths.[19]
Mental health illnesses are treatable.[20] Suicides and homicides resulting from mental health conditions are preventable.[21] Yet in the U.S., suicide has significantly increased. In 2016, suicide ranked as the tenth leading cause of death among Americans.[22] In 2022, it became the second leading cause of death for Americans under age 35.[23] Moreover, although adults age 65 or older comprise just 12% of the population, the National Council on Aging reported that elders make up approximately 18% of suicides in the U.S.[24] In 2020 alone, over 45,000 Americans died by suicide, nearly 10,000 of whom were aged 65 and up.[25] 12.2 million people aged 18 or older reported having serious thoughts of suicide, and 1.2 million adults attempted suicide.[26] Similarly, in 2021, over 45,000 Americans died by suicide.[27] In the same year, over 100,000 Americans died from substance abuse, a 30% increase from the year prior.[28] Research also shows that individuals with schizophrenia and bipolar disorder are responsible for approximately 10% of all U.S. homicides, and approximately 33% for mass killings.[29] In sum, the overall death toll related to substance use disorder in the U.S. has only gone upwards since 1999— by a rate of over 400%.[30]
However, it is reasonable to believe that the actual number of deaths from mental health conditions are likely higher due to underreported and underrepresented data. For example, although the CDC reported that 54% of people who die by suicide had no known mental health conditions, other mental health experts believe that 90% of people who die by suicide have a diagnosable and potentially treatable mental health condition.[31] In its report, the CDC reported only 54% of people who commit suicide suffered from mental health conditions because the data used from the National Violent Death Reporting System (NVDR)—while useful—does not paint the whole picture because; for instance, it coded individuals with known substance use disorders as not having mental health conditions.[32] This is significant because substance use disorder is in fact a mental health condition.[33] Moreover, NVDR also coded missing data as “unknown,”[34] further suggesting that the actual number of Americans who die by suicide because of a mental health condition is higher than reported.
People who struggle with mental health conditions and substance use disorder have a long history of coping with stigma, discrimination, and other barriers in and out of the healthcare system, which can further exacerbate their mental health conditions.[35] Such biases and discriminatory practices operate as momentous obstacles for those seeking mental-health or substance use disorder treatment in the first place. In a recent study, when asked about barriers to accessing mental health care, study participants pointed to high costs, uncertainty about where to go for help, distance, and lack of transportation.[36] Nonetheless, even when individuals seek care, they often find that treatment for their mental health condition or substance use disorder operates in a separate system—often adversely—than treatment for medical and surgical care.
Limited funding towards mental health research was caused by stigma, inequity in both public and private health insurance coverage, and lack of treatment and reimbursable treatments for mental illnesses.[37] However, scientific advancement has led to improved mental health treatments and outcomes.[38] And although Congress has taken significant steps to try to end practices of discriminatory health coverage to mental health treatment by passing the Mental Health Parity and Addiction Equity Act of 2014 (“MHPAEA”), the statute, as will be discussed below, still falls short of its purpose.
III. The Mental Health Parity Act of 1996 (MHPA)
In 1996, Senators Pete Domenici and Paul Wellstone sponsored a proposed amendment (the “Wellstone Amendment”), which would have required full parity in mental health care, to pending health care legislation.[39] Although it passed unanimously in the Senate, debates about excessive costs of mental health parity in the House of Representatives led to a toothless version of the original Wellstone Amendment that only addressed certain disparities in the insurance market.[40]
Even the statute’s most significant provision, the parity benefit mandate[41]—which barred insurers from imposing disparate annual and lifetime limits for mental health benefits as opposed to surgical and medical benefits—was extremely limited and gave room for insurers to apply alternative mechanisms that discriminated against those in need of mental health benefits.[42] For example, the statute did not bar insurers from covering a lower percentage of mental health care costs than medical and surgical health care costs.[43] Nor did it bar insurers from imposing higher co-insurance rates, dollar limits, or day restrictions for mental health services.[44]
Moreover, in an all too typical fashion, Congress provided vague definitions of “mental illness” and “mental health benefits,” defining the latter as “benefits with respect to mental health services, as defined under the terms of the plan or coverage . . . but does not include benefits with respect to treatment of substance abuse or chemical dependency.”[45] The 1996 statute defined “substance abuse treatment” coverage separately from “mental health treatment” coverage, and altogether excluded substance abuse treatment from coverage.[46] It also lacked a provision mandating consumer access to out-of-network mental health practitioners, and did not require “a group health plan . . . to provide any mental health benefits” coverage.[47] This gave plenty of room for insurers to define the mental illnesses their policies covered.[48] Lawsuits brought under both the Americans with Disabilities Act (ADA) and the Employee Retirement Income Security Act of 1974 (ERISA) provided insurance companies legal precedent that allowed them to define what constituted mental illness and left courts with conflicting definitions of “mental illness.”[49] For example, in Kunin v. Benefit Trust Life Ins. Co., 910 F.2d 534, 538 (9th Cir. 1990), the Ninth Circuit stated that autism is not a mental illness, and defined “mental illness” as “a behavioral disturbance with no demonstrable organic or physical basis . . . [stemming] from [a] reaction to environmental conditions as distinguished from organic causes.” In Brewer v. Lincoln Nat’l Life Ins., 921 F.2d 150, 154 (8th Cir. 1990), the Eighth Circuit held that affective mood disorder was a mental illness, but ambiguously defined “mental illness” as an illness based on symptoms a layperson would characterize as a mental illness regardless of the cause. And in Simonia v. Glendale Nissan/Infiniti Disability Plan, 378 F. App’x 725, 725 (9th Cir. 2010), the Ninth Circuit upheld an insurance plan’s definition that defined mental illness as any disorder considered a mental disorder according to the American Psychiatric Association.
Insurers, as expected, employed discriminatory practices and avoided providing equal coverage, and courts upheld such practices.[50] For example, in Ford v. Schering-Plough Corp., 145 F.3d 601, 605, 608 (3d Cir. 1998), the Third Circuit held that disparate treatment of physical illnesses and mental illnesses under an employee insurance plan does not violate the ADA. In Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1019 (6th Cir. 1997), the Sixth Circuit held that the ADA does not require the same level of benefits for mental and physical disabilities. And in Lewis v. Kmart Corp., 180 F.3d 166, 172 (4th Cir. 1999), the Fourth Circuit held that the ADA does not require the same level of benefits for mental and physical disabilities.
About 87% of group health plans that reported compliance with the MHPA had more restrictive coverage for mental health benefits as opposed to medical and surgical benefits.[51] Thus, before the enactment of Mental Health Parity and Addiction Equity Act of 2008 (“MHPAEA”) and the Patient Protection and Affordable Care Act (“PPACA”) of 2010, insurance providers dictated the extent they covered for mental illnesses by using different definitions of “mental illness,” meaning that conditions commonly considered mental illnesses could be excluded under these definitions, and people with identical conditions could be treated differently.[52]
IV. The Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA)
In 2008, Congress passed MHPAEA to correct discriminatory health care practices against those both with a mental illness and/or addiction. [53] The overarching goal of parity laws is to “even the playing field” in the sense that mental health disorders have traditionally been underinsured—for example, by lack of coverage or minimal coverage—thereby lowering barriers for individuals with mental health disorders to seek and receive treatment.[54] However, as will be discussed below, MHPAEA is only one small step forward and does not achieve true parity.
A. History of MHPAEA 2008
Introduced by the House of Representatives in 2007, MHPAEA proposed to amend ERISA, the Public Health Service Act, and the Internal Revenue Code to plug some of the gaping holes in MHPA by, again, attempting to prohibit treatment limits or the imposition of financial requirements on mental health and substance related disorder benefits in group health plans which are not similarly imposed on substantially all medical and surgical benefits in any category of items or services under such plans.[55]
The 2008 passage of the MHPAEA was also advanced in part by political strategy from parity advocates.[56] There were three political factors that influenced MHPAEA’s passage. First, research on the financial costs of parity, which found no strong evidence of increased spending, alleviated some concerns of employers, insurers, and policy makers.[57] Second, members of Congress called on their families’ personal experiences with mental illness and addiction to effectively advocate for more comprehensive legislation.[58] And third, members of Congress strategically wrote separate bills for the Senate and the House of Representatives aimed at passage in each chamber, which eventually paved the way for negotiations and compromise.[59]
Since the 1996 MHPA did not apply to substance use disorder benefits, MHPAEA amended the law’s requirements to extend to substance use disorder benefits.[60] The MHPAEA addressed numerous gaps in the MHPA and piecemeal state-level legislation. Building on parity for annual and lifetime limits, the MHPAEA extended parity to additional financial requirements, quantitative treatment limitations (QTLs), and non-quantitative treatment limitations (NQTLs).[61]
After the Departments of the Treasury, Labor, and Health and Human Services published in the Federal Register soliciting comments on the requirements of MHPAEA in 2009, an interim final rule was released in February 2010.[62] In light of the comments and other feedback received in response to the interim final regulations, the Departments issued clarifications in several rounds of Frequently Asked Questions (FAQs).[63] After providing many FAQs[64] and addressing the comments and feedback, the final regulation incorporated many of the clarifications issued by the Departments and additionally provided new clarifications on issues, and MHPAEA went into effect in 2013.[65]
B. Regulation Overview
Under MHPAEA, if a plan or insurer that offers medical/surgical and mental health and substance use disorder (MH/SUD) benefits imposes financial requirements such as deductibles, copayments, coinsurance, or out of pocket limitations, the financial requirements applicable to MH/SUD benefits can be no more restrictive than the “predominant” financial requirements applied to “substantially all” medical/surgical benefits.[66] The regulations provide that the “predominant/substantially all” test applies to six classifications of benefits on a classification-by-classification basis.[67] The six classifications by which plans could determine if benefits are equivalent to medical/surgical care include: in-network inpatient, out-of-network inpatient, in-network outpatient, out-of-network outpatient, emergency care, and prescription drugs.[68] This means if a plan provides medical/surgical benefits in any or all of the above classifications, it must provide mental health/addiction benefits in the same classification.
i. Treatment Limitations, Financial Requirements and Quantitative Treatment Limitations (QTLs)
MHPAEA provides protection for treatment limitations.[69] “Treatment limitations” refer to limits on the frequency of treatment, number of visits, days of coverage, or other similar limits on the scope or duration of treatment.[70] Treatment limitations are identified in both quantitative and non-quantitative manners, and the regulation provides rules for each.
Financial requirements and QTLs are two separate categories regulated by MHPAEA.[71] However, the analysis to determine if they comply with MHPAEA is the same. Financial requirements include deductibles, co-payments, coinsurance, or out-of-pocket maximums. They do not include aggregate lifetime or annual dollar limits.[72] QTLs are generally numerical, such as visit limits and day limits. Before MHPAEA, many plans covered only a specific number of behavioral health treatment days or visits. After the passing of MHPAEA, such quantitative treatment limits were allowed only if they were “at parity” with medical-surgical limits.
Smith v. UnitedHealthcare Ins. Co.[73] provides a good example of an insurance provider violating the regulation’s financial and QTL parity requirements. Plaintiff Jane Smith suffered from PTSD and had received outpatient psychotherapy from a licensed clinical social worker since 2016.[74] The social worker was out-of-network, and Defendant United paid only a partial amount of the claim “according to its reimbursement schedule.”[75] Smith disputed the amount that United covered because its mental health and substance use disorder (MH/SUD) services were reduced by 25% for services provided by psychologists and 35% for services provided by “a masters level counselor.”[76] She filed a class action alleging Parity Act violations under three independent and alternative legal theories, two of which were discriminatory: (1) discriminatory financial requirements and (2) discriminatory QTL application.[77] United argued the terms were only a non-quantitative treatment limitation (NQTL) issue and not QTL or financial requirement issues because “NQTLs are limitations that cannot be expressed numerically.”[78] The court disagreed and stated that Smith plausibly alleged a QTL claim because the reduced reimbursement itself is expressed numerically at 25% and 35% less than the other allowed rates.[79] As to the financial requirement, the Court agreed it was also a plausible claim “because the effect of reduced reimbursements increased out-of-pocket expenses for Plaintiff.”[80]
Notably, the court also held that, at the motion to dismiss stage of litigation, plaintiffs may pursue claims that appear inconsistent. United argued Smith could not “simultaneously or alternatively plead that [the claims] are also a financial requirement and QTL” because such claims would be contradictory, i.e., the claim cannot be all (1) QTL, (2) NQTL, and (3) financial requirement issues.[81] But the court disagreed and held that Fed. R. Civ. P 8(d)(2)-(3) allows Smith to “state as many separate claims . . . regardless of consistency.”[82] United also argued that Smith failed to state a Parity Act claim because she did not identify a covered medical or surgical practice that was comparable to the challenged reimbursement terms.[83] However, the court stated that, “at the motion to dismiss stage, such a showing is not required” because “requiring Plaintiff to identify such an analogue may require her to plead facts peculiarly within the possession and control of Defendants,” which requires discovery.[84]
ii. Non-Quantitative Treatment Limitations NQTLs
Under the regulation, a plan or issuer may not impose an NQTL with respect to mental health or substance use disorder benefits in any classification unless the NQTL to mental health or substance use disorder benefits in the classification are comparable to, and are applied no more stringently than, the medical/surgical benefits in the same classification.[85] Typical NQTLs include:[86]
- Medical management standards: Medical management standards limiting or excluding benefits based on medical necessity or medical appropriateness, or based on whether the treatment is experimental or investigative.
- Formularies: Formulary design for prescription drugs.
- Multiple network tier restrictions: For plans with multiple network tiers (such as preferred providers and participating providers), network tier design; standards for provider admission to participate in a network, including reimbursement rates.
- Reasonable and customary methods: Plan methods for determining usual, customary, and reasonable charges.
- First fail or step therapy protocols: Refusal to pay for higher-cost therapies until it can be shown that a lower-cost therapy is not effective (also known as fail-first policies or step therapy protocols).
- Failure to complete exclusions: Exclusions based on failure to complete a course of treatment.
- Geographic restrictions: Restrictions based on geographic location, facility type, and provider specialty.[87]
Parity requirements refer to processes and standards, not results. Disparate results alone, the regulation makes clear, are not conclusive evidence of non-compliance. For example, provider reimbursement rates for behavioral health providers may be lower than those for medical surgical providers, based on factors “such as service type; geographic market; demand for services; supply of providers; provider practice size; Medicare reimbursement rates; and training, experience and licensure of providers,” so long as the factors as applied to mental health and substance use disorder services are “applied comparably to and no more stringently than those applied with respect to medical/surgical services.”[88]
Bushell v. UnitedHealth Group Inc.[89] is a good example of an insurer providing a more stringent requirement on mental health as compared to medical/surgical benefits. Jamie Bushell suffered from anorexia nervosa—a mental illness—and saw a registered dietician about once a week for nutritional counseling.[90] Defendant UnitedHealth Group refused to pay for those sessions, asserting that nutritional counseling is not covered under Bushell’s health insurance plan. Bushell alleged United discriminated against her and violated MHPAEA because it applied an NQTL to mental health treatment more stringently than it did to other medical treatment.[91] She argued that United covered nutritional counseling for those suffering from non-mental health conditions, like diabetes.[92] United argued that Bushell did not adequately allege an NQTL because she merely alleged only disparate results rather than disparate process/decision making.[93] The court noted that, although there was no case law addressing the question, Bushell’s complaint alleged a disparate process because United categorically excluded nutritional counseling for all eating disorders stemming from mental health illnesses, but offered nutritional counseling for medical conditions, like diabetes.[94]
C. MHPAEA’s Exceptions and Shortcomings, and the Ongoing Effort to Close the Remaining Loopholes in Mental Health Parity Law
i. Lack of Parity for NQTLs
Any limitation on coverage other than numerical limits is considered an NQTL. This could bring in an endless variety of coverage design standards. MHPAEA regulations provide a non-exhaustive list of common NQTLs, such as medical management standards that limit benefits based on medical necessity or whether treatment is experimental or investigational. As stated, under the parity regulations, plans cannot apply a NQTL to a mental health/substance use disorder benefit unless the “processes, strategies, evidentiary standards and other factors” used to apply that restriction are “comparable to and applied no more stringently” to these benefits than they are to medical surgical benefits.[95]
This standard is challenging to implement as there are no bright line rules for determining what is “comparable” and “more stringent” when comparing benefits. Common concerns involve preauthorization and determinations for mental health treatment which can be difficult to compare with medical standards given the very nature of how mental health care is delivered and outcomes tracked. For example, prior authorization might be required for inpatient mental health and medical benefits. The key to properly applying an NQTL is documenting the analysis that these limits are comparable across medical and mental health benefits and documenting the reasons for any differences based on recognized, clinically appropriate standards.[96]
In the Department of Labor’s (DOL) 2022 Report to Congress on the MHPAEA,[97] the DOL found that health plans and health insurance issuers were failing to deliver parity for mental health and substance-use disorder benefits to those they cover, specifically in the area of providing NQTL benefits.[98] The DOL indicated that the comparative analyses for NQTLs were deficient because they (1) failed to identify the benefits, classifications, or plan terms to which the NQTL applies; (2) failed to describe in sufficient detail how the NQTL was designed or how it is applied in practice to mental health/substance use disorder benefits and medical/surgical benefits; (3) failed to identify or define in sufficient detail the factors, sources, and evidentiary standards used in designing and applying the NQTL to mental health/substance use disorder and medical/surgical benefits; (4) failed to analyze in sufficient detail the stringency with which factors, sources, and evidentiary standards are applied; and/or (5) failed to demonstrate parity compliance of NQTLs as written and in operation.[99]
ii. Where MHPAEA Does Not Apply
MHPAEA requirements do not apply to self-insured non-federal governmental plans that have 50 or fewer employees or self-insured small private employers that have 50 or fewer employees.[100] The Parity Act also does not apply to large, self-funded non-federal governmental employers that opt-out of MHPAEA requirements. This means that non-federal governmental employers that provide self-funded group health plan coverage to their employees (coverage that is not provided through an insurer) may elect to exempt their plan (opt-out) from MHPAEA requirements by following the Procedures & Requirements for HIPAA Exemption Election.[101] Local and state government plans may apply for an exemption from the Centers for Medicare and Medicaid Services. Plans whose costs increase more than 2% in the first year and 1% in the following year may file for an exemption.[102] Additionally, MHPAEA does not apply to Medicare plans. Since MHPAEA does not apply to Medicare, that leaves almost over 50% of the vulnerable population left uncovered for these important benefits.[103]
iii. The ACA Strengthened MHPAEA, But Failed to Address Certain Loopholes
In March 2010, Congress passed the Patient Protection Affordable Care Act (“PPACA” or “ACA”) the most comprehensive health care bill since the Medicare Act of 1965,[104] which strengthened MHPAEA. The ACA impacted the MHPAEA in several important ways. First, the ACA extended parity regulations from group health plans to the individual health insurance market, including plans offered through state health insurance exchanges.[105] Thus, plans that might have been exempt from parity under the MHPAEA were now subject to the same regulations.[106]
Second, MHPAEA did not compel plans to offer or provide MH/SUD benefits—it merely provided that if benefits existed, they were to be comparable with medical/surgical benefits.[107] But the ACA categorized MH/SUD as an essential health benefit, which guaranteed coverage of services and treatment of MH/SUD in non-grandfathered plans in both the small group and the individual private insurance market, including plans sold in state health insurance exchanges.[108]
Third, the ACA also mandated coverage of preventive MH/SUD services, including depression screening (for both adults and children), behavioral counseling for alcohol abuse, tobacco screening and cessation intervention, and alcohol and drug use screening for adolescents.[109]
Fourth, the ACA required that insurers maintain an adequate network of behavioral health providers to ensure that all services are accessible without unreasonable delay.[110]
Fifth, the ACA also expanded Medicaid—though not Medicare[111]—to cover low-income Americans aged 19–64, who had previously been ineligible. However, regardless of all the boosts MHPAEA received, a study found that only about 4% of Americans knew about the mental health parity law.[112] And though many Americans reach out for mental health support, many are still unable to receive help.[113]
The ACA indeed strengthened MHPAEA, but mental health and substance use disorder treatments are still not in full parity and insurance companies still have ways to avoid mental health and substance use disorder coverage through loopholes. Most insurance plans provide only basic mental health coverage, and the high cost of severe mental illness can be excluded from basic health insurance packages by placing them in higher levels of coverage.[114] The ACA allows insurance companies to provide four levels of coverage based on the benefits provided by the plan,[115] and the benefits provided within each level of coverage are standard among different insurance plans.[116] The coverage levels are bronze, silver, gold, and platinum, and they vary based on the level of benefits paid by the insurer: bronze covers 60% of the full actuarial value of benefits provided under the plan; silver covers 70%; gold covers 80%; and platinum covers 90%.[117] The structure allows insurers to provide coverage for more expensive mental ailments only in higher level plans, so certain mental health conditions that were restricted under some plans before the ACA can still be excluded.[118]
Another barrier for mental health care access is that in-network providers for mental health services are small, and insurers’ directories for in-network mental health care providers are not always accurate or up to date, as it is not uncommon to find names of providers who no longer provide services because they either died, moved away, or retired—meaning that in-network directories are actually even smaller.[119] Moreover, a large proportion of therapists and psychiatrists are out-of-network—requiring patients to pay more out of pocket, if they can afford to—and in-network providers are overworked with long waitlists.[120] It is also not uncommon for plans to not have any out-of-network benefit at all.[121]
Before the ACA, most insurance companies provided only a limited level of mental health and substance use disorder care due to high costs from extended hospital stays, long-term care, and intensive psychotherapy.[122] They were also reluctant to provide services that were “guaranteed by the public mental health system” such as long-term, custodial hospital stays for mental health and substance use disorder care because those costs would be borne by states.[123] Because the ACA does not prohibit these practices, insurers continue to exclude some of these expensive treatments from lower level coverage plans.[124]
iv. The 21st Century Cures Act (CCA) and the Consolidated Appropriations Act (CAA) Were Not Sufficient to Better Enforce Mental Health Parity
One of the most significant problems of MHPAEA is insurers’ unwillingness to provide a detailed summary of key steps they took to analyze a treatment limitation when requested to do so. For example, in Peter M. v. Aetna, 554 F. Supp. 3d, 1224 (D. Utah 2021), although the plaintiff argued that the defendant failed to provide copies of all documents, records, and other information relevant to the claims despite his repeated requests, the court stated it did not see how this failure prejudiced the plaintiff or represented a failure by defendant to exercise discretion.
One of the goals of the CCA is to address noncompliance[125] by having federal agencies give guidance to plans on parity compliance, including obligations to disclose documents that show parity compliance or noncompliance.[126] However, a study found that plans continued to fail to meet parity requirements.[127] Congress then passed the CAA to improve transparency and regulation of insurers’ criteria and methods, both written and unwritten.[128] But since compliance is not closely enforced,[129] the current legal scheme gives regulators little power to scrutinize the quality of insurers’ internal medical necessity guidelines.[130] Because there are few guardrails that meaningfully prescribe how insurers use clinical guidelines to ensure they follow generally accepted standards of care, insurers often rely on internally developed guidelines that restrict coverage, which are often ambiguous and not consistent with generally accepted standards of care.[131] As a result, insurers deny reimbursement for mental health services by stating that the care is not a “medical necessity,” which sheds no light on the criteria used to make the decision or how they were applied, leaving people confused and frustrated, and often forced to simply accept the insurers’ denial and forego needed mental health care.[132] Coverage for mental health services continues to remain lower than for medical/surgical health providers.[133]
V. Pros and Cons of Parity
A. Cons of Parity
Parity in the health care standard and health care costs seem reasonable and justified especially in an era where mental health is at the forefront. Strengthening mental health parity protections is just one part of a larger policy discussion that includes addressing (1) the behavioral health workforce shortage, (2) rising behavioral health treatment needs among children and youth, (3) an inadequate health care infrastructure to address those in crisis, and (4) the need for improved integration of primary care and behavioral health care in the health care delivery system.[134] But the primary argument against parity is the burden and increased cost for beneficiaries, employers, and/or insurance companies.
First, insurance companies are primarily concerned that individuals who are in greater need of health care services, such as mental health services, will seek out and purchase health insurance plans that do not accurately reflect their increased risk (i.e., adverse selection).[135] Therefore, these beneficiaries engage in more health services that are more expensive to the insurance companies. The need for parity comes at the expense of the fundamentals of how insurance operates in the first place. Insurance companies may increase premiums to cover increased costs, which causes healthier individuals to leave the plan and further increases the risk and cost of the beneficiary pool.[136] Because the function of health insurance is to lessen the burden of health care costs for beneficiaries, the reduction of these costs may result in increased utilization of health care.[137] As the price of services decreased, the demand for services increased at a greater rate for mental health services than for physical health services.
Second, treatments suited for mental health and substance use disorder are not comparable to treatments and benefits related to medical surgical benefits. In recent years there has been a development in litigation trends with particular focus on how courts are analyzing claims that insureds were improperly denied “wilderness therapy” benefits in violation of the Parity Act. Wilderness therapy, or outdoor behavioral therapy, is an emerging but highly controversial treatment[138] modality that uses expeditions, or stays, in the wilderness as a means of addressing behavioral and mental health issues. Traditionally, insurance companies have recognized only established mental health treatments delivered through in-patient hospitalization and outpatient therapy, and wilderness therapy treatment is typically not covered under the language of many plans.
In Peter v. Aetna Health & Life Ins. Co., Plaintiffs Peter M. and his son, I.M., claimed that Defendants Aetna and Nomura Securities denied the claims for I.M.’s second visit to a Wilderness Treatment Center without giving them all the internal appeals guaranteed by the plan.[139] Defendants denied coverage of both visits to the treatment center because the plan did not cover Wilderness Treatment Centers. Plaintiffs brought two causes of action under ERISA: (1) a claim for recovery of benefits under § 1132(a)(1)(b) and (2) a claim for equitable relief under § 1132(a)(3) for a MHPAEA violation. Plaintiffs did not prevail on either claim. When I.M. was 15, he struggled with drug addiction and anorexia.[140] He got treatment from Aspiro, an outdoor youth treatment center.[141] Peter, I.M.’s father, submitted a claim to Aetna for payment for I.M.’s first visit to Aspiro.[142] Aetna denied the claim. Peter submitted a level one appeal for I.M.’s first visit, arguing denial of services violated MHPAEA, and requested a copy of all documents under which the plan is operated, including administrative services agreements and governing plan documents.[143] “Plaintiffs argue[d] that the Plan’s categorical exclusion of wilderness treatment programs from mental health benefits places a nonquantitative limitation . . . that is not in parity with the limitations the Plan imposes on . . . medical/surgical services.”[144] Specifically, they argued, it is a facial violation because “the Plan limits one type of mental health/substance abuse treatment (based on its location in the wilderness) without placing the same location-based limitation on comparable medical/surgical treatment.”[145] However, the Defendants argued, the exclusion applies to all wilderness treatment programs, not just mental health. The court agreed, ruling that Aetna did not violate MHPAEA because it imposes the same restrictions on both mental/substance health services and on medical/surgical services.[146]
This case exemplifies the contrast in treatment and benefits that mental health and substance use disorder provides in comparison to medical/surgical services and how “parity” may not be the solution to treat such challenges. Additionally, one must consider the inevitable advancements in treatments and technology in one area of the health services and not the other. How would the court or the payors be able to analyze comparable treatment if none exists? These are challenges that will continue to be prevalent as society shifts to focus on understanding and treating mental health and substance use disorders.
B. Pros for Parity
On the other hand, parity inherently translates to a consumer as equal or equivalent. In that respect, “parity” is argued to be necessary and important for health care and the standards of health care and, arguably, one health condition should not take precedent over another health condition. “[R]ecent studies have demonstrated that parity policy. . . reduces out-of-pocket spending and the financial burden on families with children with mental health problems.”[147] “For example, results from the Federal Employees Health Benefits Program (FEHBP) from 2000 to 2002 suggest that out-of-pocket spending was reduced for those with major depression, adjustment disorders, and bipolar disorder.”[148]
Additionally, the World Health Organization (WHO) found that for every one dollar invested in mental health treatment broadly, four dollars were saved due to improved work productivity and health outcomes.[149] Overall, the main focal point for parity advocates is that the lack of equal coverage is discriminatory. As Representative Patrick Kennedy stated, “equal treatment of those affected by mental illness is not just an insurance issue. It’s a civil rights issue. At its heart, mental health parity is a question of simple justice.”[150]
VI. Mental Health Matters Act
As many are recovering from the pandemic in a multitude of ways, the increase of mental health support has been on the forefront of the Biden-Harris Administration’s agenda. On September 29, 2022, the House passed the Mental Health Matters act by a 220-205 vote.[151] This Act is an effort to strengthen the DOL’s authority to enforce laws requiring employer health plans to ensure parity between coverage for mental health and substance use disorder treatments and traditional medical care.[152]
Specifically, Titles I through IV of the proposed legislation provide that these resources would be used to: (a) identify and implement the best interventions; (b) build pipelines to mental health resources; (c) employ mental health professionals in high-need schools; and (d) increase transparency in the university setting for students requesting mental health support.[153] Titles VI and VII of the Act will authorize approximately $275 million over a span of ten years for the DOL to enforce mental health parity requirements under ERISA and MHPAEA.[154] The bill amends ERISA to give the DOL the ability to assess civil fines on employers and administrators of employer group health plans that violate MHPAEA.[155]
For more than a decade, MHPAEA required group health plans and insurance companies to ensure coverage restrictions on mental health and substance use disorder treatments are no more stringent than in the medical context. But due to employers’ widespread lack of compliance, the DOL has requested Congress to give it more authority and resources for enforcement. The impact of this Act has its advantages and disadvantages, where the advantages are obvious—more accountability and enforcement for parity amongst mental health and substance use disorder services. In contrast, those who oppose this bill state that this Act will weaponize the DOL to sue employers rather than help them come into compliance.[156] In addition, while acknowledging that there are inherent ambiguity around NQTLs and how to analyze them to be more comparable to medical surgical services, this Act will overlook that issue and directly fine the violators.[157]
VII. Summary
Since 1956, the U.S. has made strides in governing mental health treatment. From the time when the 1996 Mental Health Parity Act was enacted, until 2008, where Congress attempted to broaden the Act to include substance abuse, it has been challenging to destigmatize mental illness and provide help to those who need it. The need for parity in treating and covering mental health illnesses comes with its own challenges since the solutions to behavioral issues cannot be quantified and defies the way insurance generally works. And although Congress has made numerous attempts to strengthen the Parity Act through mediums such as the ACA, CCA, CAA, and the most recently, Mental Health Matters Act, until we change the underlying structure of our healthcare system, the way health insurance is regulated, and how we view mental health illness, these Acts will not be sustainable in creating a long-term solution. As suicide mortality rate continue to trend upwards, it is imperative for both federal and state laws to strengthen the health insurance coverage and parity for mental health illnesses.
[1] H.R.7780 - 117th Congress (2021-2022), https://www.congress.gov/bill/117th-congress/house-bill/7780 (last visited May 14, 2023).
[2] National Institute of Mental Health (NIH), Mental Illness (Mar. 2023), https://www.nimh.nih.gov/health/statistics/mental-illness (last visited May 15, 2023).
[3] Johns Hopkins Medicine, Depression and Suicide (2023), https://www.hopkinsmedicine.org/health/conditions-and-diseases/depression-and-suicide (last visited May 15, 2023).
[4] National Institute on Drug Abuse (NIDA), Understanding Drug Use and Addiction Drugfacts (Jun. 2018), https://www.unodc.org/documents/wdr/WDR_2008/WDR_2008_eng_web.pdf (last visited May 15, 2023).
[5] David H. Barlow and Mark Durand, Abnormal Psychology, An Integrative Approach, 7th ed., at 7, Cengage Learning (2015).
[6] Stacey A. Tovino, Neuroscience and Health Law: An Integrative Approach?, 42 Akron L. Rev. 469, 475 (2009); see also United Nations Office on Drugs and Crime, 2008 World Drug Report, A Century of Internal Drug Control, 173 (2008) https://www.unodc.org/documents/wdr/WDR_2008/WDR_2008_eng_web.pdf (last visited May 15, 2023).
[7] Peter Roy, Madness: a Brief History, 10 (2003); Edward Shorter, A History of Psychiatry: From the Era of the Asylum to the Age of Prozac, 1-3, 33-65, 69-109, 145-81, 239; NIH, Violence, Mental Illness, and the Brain – A Brief History of Psychosurgery: Part 1 – From Trephination to Lobotomy, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3640229/ (last visited May 15, 2023).
[8] NIH, When Faces Made the Case for Lobotomy (Nov. 1, 2019), https://nihrecord.nih.gov/2019/11/01/ when-faces-made-case-lobotomy (last visited May 15, 2023); WebMd.com, https://www.webmd.com/brain/what-is-lobotomy (last visited May 15, 2023); Healthline, Lobotomy Overview, Apr. 28, 2022, healthline.com/health/what-is-a-lobotomy (last visited May 15, 2023).
[9] Samantha M. Behbahani, Psy.D., M.S. ClinPharm et. al., The Patient Protection and Affordable Care Act: Will Parity for Mental Health Care Truly Be Achieved in the 21st Century? 10 Intercultural Hum. Rts. L. Rev. 153, 155 (2015).
[10] Amy Novotney, The Risks of Social Isolation, American Psychological Association, Vol 50, No. 5, https://www.apa.org/monitor/2019/05/ce-corner-isolation; Louise C. Hawkley and John P. Capitanio, Perceived Social Isolation, Evolutionary Fitness and Health Outcomes: A Lifespan Approach, Philosophical Transactions of the Royal Society B, Vol. 370, No. 1669, https://royalsocietypublishing.org/doi/10.1098/rstb.2014.0114 (2015).
[11] Behbahani, The Patient Protection, at 153, 155.
[12] Id. at 156.
[13] Suann Kessler, Mental Health Parity: The Patient Protection and Affordable Care Act and the Parity Definition Implications, 6 Hastings Sci. & Tech. L.J. 145, 149 (2014).
[14] Id. at 150.
[15] NIH, supra, note 1.
[16] Substance Abuse and Mental Health Services Administration (2021), Key substance use and mental health indicators in the United States: Results from the 2020 National Survey on Drug Use and Health, Center for Behavioral Health Statistics and Quality, Substance Abuse and Mental Health Services Administration, https://www.samhsa.gov/data/ (last visited May 15, 2023).
[17] Anjel Vahratian, Stephen Blumberg, Emily Terlizzi, and Jeannine Schiller, Symptoms of Anxiety or Depressive Disorder and Use of Mental Health Care Among Adults During the COVID-19 Pandemic – United States, August 2020–February 2021, Center for Disease Control and Prevention (CDC) Morbidity and Mortality Weekly Report (Apr. 2021) 70:490–494, https://www.cdc.gov/mmwr/volumes/70/wr/mm7013e2.htm (last visited May 15, 2023).
[18] Miniño Hedegaard, A.M.Wagner, Drug Overdose Deaths in the United States, 1999-2019, NCHS Data Brief No. 304 (Dec. 2020), https://www.cdc.gov/nchs/data/databriefs/db394-H.pdf (last visited May 15, 2023); see also Ahmad FB, Cisewski JA, and Rossen LM, Sutton P, Provisional drug overdose death counts. National Center for Health Statistics (2021), https://www.cdc.gov/nchs/nvss/vsrr/drug-overdose-data.htm (last visited May 15, 2023).
[19] SAMHSA, Double Jeopardy: COVID-19 and Behavioral Health Disparities for Black and Latino Communities in the U.S. (Apr. 2021), https://www.samhsa.gov/sites/default/files/covid19behavioral-health-disparities-black-latino-communities.pdf (last visited May 15, 2023).
[20] NIH, Drugs, Brains, and Behavior: The Science of Addiction, https://nida.nih.gov/publications/drugs-brains-behavior-science-addiction/treatment-recovery#:~:text=Yes%2C%20addiction%20is%20a%20treatable,known%20as%20being%20in%20recovery (last visited May 15, 2023); see also Rhitu Chatterjee, Editorial, Many Americans Are Reaching Out For Mental Health Support – But Can’t Get It, National Public Radio, (Aug. 4, 2021), (reporting that about 70% of people who get mental health treatment reported that they found it helpful), https://www.npr.org/sections/health-shots/2021/08/23/1030430464/mental-health-parity-therapy-high-cost (last visited May 15, 2023).
[21] SAMHSA, Mental Health Treatment Works, https://www.samhsa.gov/mental-health-treatment-works (last visited May 15, 2023); see also American Psychiatric Association, https://www.psychiatry.org/patients-families/what-is-mentalillness#:~:text=Mental%20health%20conditions%20are%20treatable%20and%20improvement%20is%20possible.,be%20a%20mental%20health%20concern (last visited May 15, 2023); see also CDC, Facts About Suicide (May 8, 2023), https://www.cdc.gov/suicide/facts/index.html (last visited May 15, 2023).
[22] Leaonard Holmes, Rates and Statistics for Suicide in the United States, Very Well Mind (Jun. 24, 2021), https://www.verywellmind.com/suicide-rates-overstated-in-people-with-depression-2330503 (last visited May 15, 2023).
[23] The Jed Foundation on mental health statistics, Mental Health and Suicide Statistics (Feb. 18, 2023) (citing the CDC), https://jedfoundation.org/mental-health-and-suicide-statistics/ (last visited May 15, 2023); see also CDC National Center for Health Statistics, (May, 2010) (stating that the five leading causes of death among young adults are accidents (unintentional injuries), homicide, suicide, cancer, and heart disease), https://www.cdc.gov/nchs/products/databriefs/db37.htm#:~:text=Accidents%20account%20for%20nearly%20one,94.1%20deaths%20per%20100%2C000%20population (last visited May 15, 2023).
[24] National Council on Aging, Suicide and Older Adults: What You Should Know (Sep. 7, 2021), https://ncoa.org/article/suicide-and-older-adults-what-you-should-know, (last visited May. 15, 2023).
[25] Id.; NIH, Suicide (Jun. 2022), https://www.nimh.nih.gov/health/statistics/suicide; American Foundation for Suicide Prevention, Suicide Statistics, https://afsp.org/suicide-statistics/ (last visited May 15, 2023).
[26] Id.
[27] CDC, Suicide Increases in 2021 After Two Years of Decline (Sept. 30, 2022), https://www.cdc.gov/nchs/pressroom/nchs_press_releases/2022/20220930.htm (last visited May 15, 2023); see also Harvard Medical School Health Publishing, Left Behind After Suicide, (May 29, 2019) (nothing that people who recently lost someone through suicide often experience post-traumatic stress disorder (PTSD) and are at increased risk for thinking about, planning, or attempting suicide), https://www.health.harvard.edu/mind-and-mood/left-behind-after-suicide (last visited May 15, 2023).
[28] CDC, 2021 Vital Statistics Rapid Release: Provisional Drug Overdose Death Counts (Feb. 15, 2023), https://www.cdc.gov/nchs/nvss/vsrr/drug-overdose-data.htm (last visited May 15, 2023); see also CDC, Drug Overdose Deaths in the United States, 2001-2021 (Dec. 22, 2022), https://stacks.cdc.gov/view/cdc/122556 (last visited May 15, 2023).
[29] Background Paper from the Office of Research & Public Affairs, Serious Mental Illness and Homicide, Treatment Advocacy Center, 1, (Jun. 2016), chrome-extension://efaidnbmnnnibp cajpcglclefindmkaj/https://www.treatmentadvocacycenter.org/storage/documents/backgrounders/smi-and-homicide.pdf (last visited May 15, 2023); but see Jeffrey Swanson, Elizabeth McGinty, Seena Fazel, and Vickie Mays, Mental Illness and Reduction of Gun Violence and Suicide: Bringing Epidemiologic Research to Policy, NIH (May 2015), (Arguing that epidemiologic studies show that most people with serious mental illnesses are never violent, but mental illness is strongly associated with increased risk of suicide, which accounts for over half of U.S. firearms related fatalities), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4211925/ (last visited May 15, 2023) (last visited May 16, 2023).
[30] NIH, Drug Overdose Rates (Feb. 9, 2023), https://nida.nih.gov/research-topics/trends-statistics/overdose-death-rates (last visited May 15, 2023).
[31] Dr. Harkavy-Friedman, PhD, is an Associate Professor of Clinical Psychology at Columbia University, and Vice President of Research at the American Foundation for Suicide Prevention. See Jill Harkavy-Friedman, PhD, Overview (2023), https://www.columbiapsychiatry.org/profile/jill-harkavy-friedman-phd (last visited May 15, 2023); see also Harkavy-Friedman, Jill, Does Mental Illness Play a Role in Suicide? (Feb. 7, 2020), https://afsp.org/story/ask-dr-jill-does-mental-illness-play-a-role-in-suicide (last visited May 15, 2023); see generally Harkavy Friedman, Stories Written by Dr. Jill Harkavy-Friedman, AFSP Vice President of Research (2023), https://afsp.org/author/jill-harkavy-friedman (last visited May 15, 2023).
[32] Id. Harkavy-Friedman, Does Mental Illness Play a Role in Suicide? supra.
[33] Id.
[34] Id.
[35] Van Boekel, L. C., Brouwers, E. P., Van Weeghel, J., & Garretsen, H. F. (2013), Stigma among health professionals towards patients with substance use disorders and its consequences for healthcare delivery: systematic review, Drug and Alcohol Dependence, 131(1-2), 23–35. https://doi.org/10.1016/j.drugalcdep.2013.02.018 (last visited May 15, 2023).
[36] Tanner Bommersbach, et. al., National Trends of Mental Health Care Among US Adults Who Attempted Suicide in the Past 12 Months, Journal of the American Medical Association (JAMA) Psychiatry (Jan. 19, 2022), https://jamanetwork.com/journals/jamapsychiatry/article-abstract/2787969?guestAccessKey=321bcbe7-ea1b-4022-9f3b c69c70457240&utm_source=For_The_Media&utm_medium=referral&utm_campaign=ftm_links&utm_content=tfl&utm_term=011922 (last visited May 15, 2023).
[37] Id.
[38] SAMHSA, supra, note 19.
[39] Shamash, 7 J. Health & Biomedical L. 273, 280 (2011)
[40] Id. at 281, citing 29 U.S.C. § 1185a(c) (amended by the Equity Act); see also Kessler, supra, note 11 at 154 (noting that the prohibition against disparate annual and lifetimes caps only applied to insurers that included mental health services in their benefits package).
[41] Shamash, note 36 supra, at 281 n.35 (citing 29 U.S.C. §1185a(a) (amended by the Equity Act): “If the plan or coverage does not include an aggregate lifetime limit [or annual limit] on substantially all medical and surgical benefits, the plan or coverage may not impose any aggregate lifetime limit [or annual limit] on mental health benefits”); see also Kessler, supra, note 11 at 154.
[42] Id. at 282-83, n. 42.
[43] Maggie D. Gold, Must Insurers Treat All Illnesses Equally? – Mental vs. Physical Illness: Congressional and Administrative Failure to End Limitations to and Exclusions from Coverage for Mental Illness in Employer-Provided Health Benefits Under the Mental Health Parity Act and the Americans with Disabilities Act, 4 Conn. Ins. L.J. 767, 770-73 (1997-1998) (noting lack of congressional recognition of mental health parity issue until 1990s).
[44] Id. at 770-73.
[45] Shamash, note 36 supra, at 282 n. 39 (citing 29 U.S.C. § 1185(e)(4) (amended by Equity Act)).
[46] Id.
[47] Id. at 282 n. 40 (citing 29 U.S.C. § 1185(a) (amended by Equity Act)); see also Richard A. Garcia, Equity for All? Potential Impact of the Mental Health Parity and Addiction Act of 2008, 31 J. Legal Med. 137, 141-42 (2010) (noting that MHPA did not require insurers to cover mental health services from out-of-network providers even if benefits for medical and surgical service coverage could be obtained from the same source).
[48] Id. at 282 (citing 29 U.S.C. § 1185(e)(4) (amended by Equity Act)); see also Olukunle Fadipe, Affordable Mental Health Care in the Post Healthcare Reform Era, 57 Wayne L. Rev. 575, 579-80 (2011).
[49] Fadipe, note 46, supra, id.
[50] Shamash, supra, note 36 at 283 (citing U.S. Gen. Accounting Office (GAO), Mental Health Parity Act: Despite New Federal Standards, Mental Health Benefits Remain Limited (2000), available at http:// www.gao.gov/archive/2000/he00095.pdf (last visited May 16, 2023)).
[51] Shamash, supra, note 36 at 283.
[52] Fadipe, supra, note 45 at 577-78.
[53] Lauren O’Reilly, Stephen McCaffrey, & Brian M. D’Onofrio, Mental Health Parity Legislation: A Review, Mental Health America of Indiana (Jun. 2020), https://mhai.net/wp-content/uploads/2020/06/Parity_white_paper.pdf (last visited May 16, 2023).[54] Executive Office of the President of the United States, The Mental Health and Substance Use Disorder Parity Task Force: Final Report (Oct. 2016), chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.hhs.gov/sites/default/files/mental-health-substance-use-disorder-parity-task-force-final-report.PDF; see also Colleen Barry, Haiden Huskamp, & Howard Goldman, A Political History of Federal Mental Health and Addiction Insurance Parity, (2010), NIH, The Milbank Quarterly, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2950754/ (last visited May 16, 2023).
[55] See 29 U.S.C § 1185a(a)(3)(A)(ii) (stating that, “[i]n the case of a group health plan . . . that provides both medical and surgical benefits and mental health or substance use disorder benefits, such plan . . . shall ensure . . . the financial requirements [or treatment limitations] applicable to such mental health or substance use disorder benefits are no more restrictive than the predominant financial requirements applied to substantially all medical and surgical benefits covered by the plan . . . and there are no separate cost sharing requirements [or treatment limitations] that are applicable only with respect to mental health or substance use disorder benefits.”).
[56] Emma Paterson and Susan Busch, Achieving Mental Health and Substance Use Disorder Treatment Parity: A Quarter Century of Policy Making and Research, Annual Review of Public Health, (2018), https://www.annualreviews.org/doi/pdf/10.1146/annurev-publhealth-040617-013603[57] Id. at 425 (citing Colleen Barry, Richard Frank, & Thomas McGuire, The costs of mental health parity: still an impediment? NIH: National Library of Medicine (2006), https://pubmed.ncbi.nlm.nih.gov/16684725/ (last visited May 16, 2023)).
[58] Id.
[59] Id.
[60] O’Reilly, McCaffrey, & D’Onofrio, supra, note 49.
[61] Id.
[62] Id.; see also Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA), Interim Final Rules Under the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, 75 Fed. Reg. 5409, pp. 5409-5451 (February 2, 2010) (codified at 26 CFR 54, 29 CFR 2590, 45 CFR 146, 45 CFR 147)https://www.federalregister.gov/documents/2010/02/02/2010-2167/interim-final-rules-under-the-paul-wellstone-and-pete-domenici-mental-health-parity-and-addiction; see final rule at 78 Fed. Reg. 68239, https://www.federalregister.gov/documents/2013/11/13/2013-27086/final-rules-under-the-paul-wellstone-and-pete-domenici-mental-health-parity-and-addiction-equity-act (last visited may 16, 2023); see also Office of Information and Regulatory Affairs and Office of Management and Budget, RIN: 1210-AB30, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201404&RIN=1210-AB30 (last visited May 16, 2023).
[63] Id.; see also CMS Affordable Care Act Implementation FAQs, Set 5, https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/aca_implementation_faqs5 (last visited May 16, 2023).
[64] See generally MHPAEA FAQs’, https://www.cms.gov/cciio/resources/fact-sheets-and-faqs#Mental_Health_Parity (last visited May 16, 2023).
[65] Paterson and Busch, note 52, supra, at 423-44; see also Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA), Final Rules Under the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008; Technical Amendment to External Review for Multi-State Plan Program, https://www.federalregister.gov/documents/2013/11/13/2013-27086/final-rules-under-the-paul-wellstone-and-pete-domenici-mental-health-parity-and-addiction-equity-act (last visited May 16, 2023).
[66] United States Department of Labor (DOL): Employee Benefits Security Administration (EBSA), The Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) Fact Sheet, 1 (Jan. 29, 2010).[67] Id. at 2.
[68] See Paterson and Busch, note 52, supra, at 423.
[69] DOL Fact Sheet, note 62, supra, at 2.
[70] Id.
[71] SAMHSA, The Essential Aspects Of Parity: A Training Tool For Policymakers, Publication No. PEP21-05-00-001, at 8, (2021), chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://store.samhsa.gov/sites/default/files/pep21-05-00-001.pdf (last visited May 16, 2023).
[72] Id.
[73] Smith v. UnitedHealthcare Ins. Co., WL 3238918 (N.D. Cal. Jul. 18, 2019).
[74] Id. at *1.
[75] Id.
[76] Id.
[77] Id.
[78] Smith, note 69, supra, at *4.
[79] Id. at *5.
[80] Id.
[81] Id. at *4.
[82] Id.
[83] Id. at *5.
[84] Smith, supra, note 69 at *6.
[85] MHPAEA Final Rules, 78 FR 68240. Note 61, supra.
[86] Mental Health Parity and Addiction Equity Act Compliance for Employer Health Plans; see generally DOL Self-Compliance Tool for the Mental Health Parity and Addiction Equity Act (MHPAEA), chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.dol.gov/sites/dolgov/files/EBSA/laws-and-regulations/laws/mental-health-parity/self-compliance-tool2018.pdf (last visited May 16, 2023).[87] Id.
[88] SAMHSA, note 67, supra.
[89] Bushell v. United Health Group Inc., WL 1578167 (S.D.N.Y. Mar. 27, 2018).
[90] Id. at *1.
[91] Id. at *5.
[92] Id. at *1.
[93] Id. at *5.
[94] Id. at *5-6.
[95] See SAMHSA, note 14, supra.
[96] Id.
[97] 2022 MHPAEA Report to Congress, Dept. of Labor, Dept. of Human and Health Serv. And Dept. of Treasury (2022).
[98] Id.
[99] Id.
[100] See CMS, The Mental Health Parity and Addiction Equity Act (MHPAEA), https://www.cms.gov/CCIIO/Programs-and-Initiatives/Other-Insurance-Protections/mhpaea_factsheet(last visited May 10, 2023).
[101] Shamash, note 36, supra, at 287; id; CMS, Self Funded Non Governmental Plans: Procedures and Requirements for HIPAA Exemption Election, https://www.cms.gov/CCIIO/Resources/Files/hipaa_exemption_election_instructions_04072011 (last visited May 16, 2023).
[102] See 29 U.S.C. §1185a(c)(2). However, regardless of the increase in total costs, an employer may choose to apply the parity requirements to its mental plan. See id. § 1185a(c)(2)(A).
[103] Id.
[104] Paterson and Busch, supra, note 52 at 423-44; Shamash, note 36, supra, at 293; see also Editorial, Health Care Reform, at Last, N.Y. Times (Mar. 22, 2010), https://www.nytimes.com/2010/03/22/opinion/22mon5.html (last visited May 16, 2023).
[105] Id. Patterson and Busch, at 424.
[106] See 42 U.S.C. § 300gg-4(a).
[107] Paterson and Busch, note 52, supra, at 423-44.
[108] Id.; Shamash, note 36, supra, at 313-14; see also American Psychological Association’s guide sheet, Does your insurance cover mental health services? (Mar. 21, 2023), https://www.apa.org/topics/managed-care-insurance/parity-guide (last visited May 16, 2023).
[109] Paterson and Busch, note 41, supra, at 423-44.
[110] Id.
[111] See American Psychological Association’s guide sheet, note 99, supra.
[112] Sophie Bethune and Luana Bossolo, Few Americans Aware of Their Rights for Mental Health Coverage, American Psychological Association (2014), https://www.apa.org/news/press/release/2014/05/mental-health-coverage.
[113] See Chatterjee, note 18, supra.
[114] Fadipe, note 45, supra, at 588; see also Paul Appelbaum & Joseph Parks, Holding Insurers Accountable for Parity in Coverage of Mental Health Treatment, Psychiatric Services: Psychiatry Online (Nov. 14, 2019), https://ps.psychiatryonline.org/doi/10.1176/appi.ps.201900513 (last visited May 16, 2023).
[115] 42 U.S.C. § 18022(d)(1)(A)-(D) (2006).
[116] Fadipe, note 45, supra, at 588.
[117] 42 U.S.C. § 18022(d)(1)(A)-(D) (2006).
[118] Fadipe, note 45, supra, at 588.
[119] Chatterjee, note 18, supra.
[120] Id.
[121] Id.
[122] See generally U.S. Dept' of Health & Human Serv., Office of the Surgeon Gen., Mental Health: A Report of the Surgeon General, Financing and Managing Mental Health Care, History of Financing and the Roots of Inequality, http://www.surgeongeneral.gov/library/mentalhealth/chapter6/sec3.html (last updated May 16, 2023).
[123] Id.
[124] Id.
[125] Pub. L. 114-255, 130 Stat. 1033 (2016) (codified at 42 U.S.C. § 300gg-26(a)); see also Brief of Amici Curiae The National Health Law Program, E.W. and I.W. v. Health Net Life Insurance Co. and Health Net of Arizona, Inc., No. 2:19-cv-00499-TC, at *12, (10th Cir. Jun. 28, 2022) (hereinafter “Health Net”).[126] Id. §§ 13001-13002; Health Net, supra, at *12-13.
[127] Health Net, note 116, supra, at 12; see also Gov’t Accountability Office (GAO), Mental Health and Substance Abuse: State and Federal Oversight of Compliance with Parity Requirements Varies (2019), chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.gao.gov/assets/gao-20-150.pdf.
[128] Health Net, note 116, supra, at *13; Pub. L. 116-260, 134 Stat. 2900, § 203 (2020); SAMHSA, note 67, supra, at 2-3 (showing the chronology of parity enforcement)
[129] Health Net, note 116, supra, at *14.; see also, e.g., 29 C.F.R. § 2560.503-1.
[130] Health Net, id.; see also Am. Health Lawyers Assoc., Medical Necessity: Current Concerns and Future Challenges, 28-29 (2005), https://www.yumpu.com/en/document/read/21768262/medical-necessityamerican-health-lawyers-association (last visited May 16, 2023).
[131] Health Net, supra, at *14-15; see also Am. Health Lawyers Assoc., supra, at 43; see also Chloe Reichel, Obstacles Prevent Access to Mental Health Care, Even Among Insured, The Journalist’s Resource (Jul. 10, 2019), https://journalistsresource.org/politics-and-government/mental-health-care-insurance-research/.[132] Health Net at *15, supra; Am. Health Lawyers Assoc., note 121, supra, at 3, 29; National Alliance on Mental Illness (NAMI), A Long Road Ahead at 4-5 (2015), chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.nami.org/Support-Education/Publications-Reports/Public-Policy-Reports/A-Long-Road-Ahead/2015-ALongRoadAhead (last visited May 16, 2023).
[133] See generally, Steve Melek, Stoddart Davenport, & T.J. Gray, Addiction and Mental Health vs. Physical Health: Widening Disparities In Network Use And Provider Reimbursement, Milliman Research Report (Nov. 19, 2019), chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.milliman.com//media/milliman/importedfiles/ektron/addictionandmentalhealthvsphysicalhealthwideningdisparitiesinnetworkuseandproviderreimbursement.ashx (last visited May 16, 2023).
[134] Kaye Pestaina, Mental health parity at a crossroads, KFF (2022), https://www.kff.org/private insurance/issue-brief/mental-health-parity-at-a-crossroads/ (last visited May 10, 2023).
[135] Id.
[136] Id.
[137] Id.
[138] Nicole Okoren, The wilderness “therapy” that teens say feels like abuse: “You are on guard at all times,” The Guardian (Nov. 14, 2022), https://www.theguardian.com/us-news/2022/nov/14/us-wilderness-therapy-camps-troubled-teen-industry-abuse (last visited May 16, 2023).
[139] Peter v. Aetna Health & Life Ins. Co., 544 F. Supp. 3d 1216 (D. Utah 2021).
[140] Id. at 1219 – 1220
[141] Id.
[142] Id. at 1220.
[143] Id.
[144] Id. at 1227.
[145] Id.
[146] Id.
[147] See Pestaina, note 126, supra.
[148] Id.
[149] United Nations Interagency Task Force on NCDs, Making the Investment Case for Mental Health: A WHO / UNDP Methodological Guaidance Note, United Nations (May 10, 2019), chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://apps.who.int/iris/bitstream/handle/10665/325116/WHO-UHC-CD-NCD-19.97-eng.pdf?sequence=1&isAllowed=y (last visited May 16, 2023).
[150] Rosalynn Carter and Patrick Kennedy, Editorial, We must treat mental and bodily health the same. It's a matter of human rights, Washington Post (Sep. 28, 2018), https://www.washingtonpost.com/opinions/we-must-treat-mental-and-bodily-health-the-same-its-a-matter-of-human-rights/2018/09/28/1348d73a-c263-11e8-97a5-ab1e46bb3bc7_story.html; see also American Journal of Managed Care (AJMC), Patrick Kennedy Describes the Importance of the Mental Health Parity & Addictions Equity Act (May 5, 2014), https://www.ajmc.com/view/patrick-kennedy-describes-the-importance-of-the-mental-health-parity-and-addictions-equity-act; see also Pestaina, note 126, supra.
[151] H.R.7780 - 117th Congress (2021-2022): Mental Health Matters Act, https://www.congress.gov/bill/117th-congress/house-bill/7780 (last visited May 14, 2023).
[152] Id.
[153] Id.; see also Lisa Weddle, David Yates, and Saghi Fattahian, House Passes Mental Health Matters Act: What Employers, Insurers, and ERISA Plan Administrators Need to Know, Morgan Lewis & Bockius LLP (Oct. 6, 2022), https://www.morganlewis.com/pubs/2022/10/house-passes-mental-health-matters-act-what-employers-insurers-and-erisa-plan-administrators-need-to-know[154] Title VII of the Act would invalidate forced arbitration provisions, class action waivers, and representation waivers for the purposes of ERISA Section 502 claims and common law claims associated with a plan or benefits under a plan when brought by a participant or beneficiary. Id.[155] Id.
[156] Id.
[157] Title VII would also invalidate single-employer plan provisions that give discretionary authority relating to benefit determinations or interpretations of the plan. Id.