The Biden administration unleashed an aggressive and public opening salvo Tuesday in what it pledges will be a sustained effort to compel U.S. health insurers to pay for mental health services on par with the way they cover physical health care.

In a report to Congress, regulators painted a picture of a recalcitrant insurance industry that is failing to comply with laws that have been on the books for years. The 54-page document said that of 1,112 requests for information that the Department of Labor lodged with health plans in the past year, not a single initial response was satisfactory.

The administration “believes it’s time to move forward decisively,” Labor Secretary Marty Walsh said Tuesday morning at a media briefing about the report. “The pandemic has only made it more clear how central mental health services are for our nation’s well-being.”

Labor Secretary Marty Walsh in official portrait.

For decades, Americans seeking treatment for mental illness and substance abuse have faced an array of obstacles put up by their insurance plans. Therapies may be deemed “not medically necessary,” coverage of inpatient hospital stays often ends well before doctors recommend and proven treatments may be excluded entirely.

The report contained several examples of unidentified health plans that dropped their restrictions as a result of having to respond to queries during the auditing process. One was an employer-sponsored plan that had required pre-certification for all outpatient mental health and substance abuse services but only for a select list of outpatient services on the medical and surgical side.

None of the findings surprised advocates, lawyers and providers who deal with these issues every day. But they were pleased to see their complaints documented by the federal government.

The report “provides damning evidence that health plans continue to be out of compliance with the Mental Health Parity and Addiction Equity Act,” former Rep. Patrick Kennedy, who led the bill to passage in the House in 2008, said in a statement. That bill substantially expanded the first federal parity law passed in 1996. Kennedy left Congress in 2011 and later founded The Kennedy Forum, which works to transform the way mental health and addiction care are treated in the health care system. (Kennedy is also a member of the editorial advisory board of MindSite News.)

If federal auditors eventually determine that health plans are out of compliance, the insurers will be required by law to notify their members of that fact. But even if that happens, it’s unclear what impact such findings will have. Under current law, the Labor Department, which has enforcement authority over employer-sponsored health plans covering more than 136 million people, has little authority to impose fines, and those health plans are largely protected from punitive damages in lawsuits.

The department has asked Congress to give it the power to assess civil monetary penalties, a point that was emphasized in the report. Legislation to provide that authority is currently in limbo, part of  President Biden’s huge social services and climate change plan that Democrats have been unable to pass against unified Republican opposition.

The Department of Health and Human Services does have the authority to levy fines, but it oversees a much smaller number of plans, including Obamacare individual market plans. Tuesday’s report included findings by HHS auditors describing similar types of noncompliance.

“Honestly, I think that money talks,” said Karen Fessell, founder and executive director of the Mental Health and Autism Insurance Project, a San Francisco Bay Area-based nonprofit. “If you really want to 1) get their attention and 2) change their behavior, you need that ability to fine them.”

Fessell, an advocate who has represented hundreds of families around the country trying to get benefit denials reversed, was especially pleased that the report highlighted blanket coverage exclusions for the most effective treatment for Autism Spectrum Disorder.

Denials of claims for Applied Behavior Analysis (ABA) – a labor-intensive one-on-one therapy that can reduce the chaos experienced by autistic children and help them learn – come up constantly in her practice. Insurers who cover it sometimes automatically cut the hours when a child turns 6, on the assumption that they will be in school, Fessell said. “Not everybody can go to school at age 6.”

The new report is not easy reading. It focuses on requirements that plans conduct complex analyses of how mental health treatment limitations were devised, the strategies and standards of evidence on which they were based, and how the plans determined that restrictions they imposed were comparable to those for medical and surgical treatment. Many plans apparently had never done the required comparative analyses.

Eleanor Hamburger, a Seattle attorney who has sued health plans for parity violations multiple times, recognized her own experiences in the report. In one case, she said, she asked a health plan to provide the analysis used to exclude autism treatment. What she received back, she said, was “ludicrous. It’s one page, and it says: ‘We’re excluding ABA because every other plan does it.’”

Plans have been required to do these analyses since the parity law took effect 12 years ago, but Congress only recently amended the law to require that federal regulators conduct a minimum number of audits on a specified schedule.

Kristine Grow, senior vice president for communications for America’s Health Insurance Plans, a trade group representing major U.S. health insurers, said her members “are wholly supportive of parity” in coverage for physical and mental health services. “Everyone deserves access to comprehensive health care that effectively addresses their physical and mental well-being,” she said in a statement.

Health insurers are learning the “complex, detailed levels of analysis” now required by federal regulators and need “additional compliance assistance,” Grow said. “This is a new process for everyone.”

But Ali Khawar, an acting assistant secretary at the Department of Labor who oversees the audits, had a different take.

“I’m pretty confused about why the level of compliance, so long after the statute was passed, and after so much guidance was issued, is as poor as it is,” Khawar said at Tuesday’s press briefing. “We’re not going away. We do intend to make sure that we’re doing everything that we can to really get to a place where compliance is the norm.”

Don Sapatkin

Don Sapatkin is an independent journalist who reports on science and health care. His primary focus for nearly two decades has been public health, especially policy, access to care, health disparities...