Calling all Americans who care about erasing roadblocks to mental health and substance abuse care:
You have until Tuesday, October 17 to make comments on a set of proposed new regulations that will influence the way health insurers serve people with mental health and substance use conditions. This is your chance to send stories of your lived experience and feedback and to try to make enforcement of an important law as tough as possible.
Here’s the background. Back in 2008, Congress passed the Mental Health Parity and Addiction Equity Act (MHPAEA). The law was aimed at bringing parity to mental health care – that is, ensuring that insurers pay for mental health and addiction treatment just as they would pay for surgery or a physical condition such as diabetes or heart disease.
But in the 15 years since then, the law has failed to live up to its hope because of weak regulations and lax enforcement. Two months ago, the Biden administration published a set of proposed changes to the regulations that aim to clarify and tighten the requirements that insurers must comply with.
As with all regulations, the public has the right to make comments for a limited period of time. Tomorrow at 11:59 Eastern time, the window for that comment will slam shut.
We have until Tuesday, October 17th, 2023, at 11:59PM ET to give our much-needed feedback. Here is where you go to do that:https://www.regulations.gov/commenton/EBSA-2023-0010-0001
The link includes a link to the Federal Register’s draft of the proposed regulation, which is available in a PDF.
The Mental Health Parity and Addiction Equity Act of 2008 was intended to prevent group health plans and health insurance issuers that provide mental health and substance use disorder (MH/SUD) benefits from imposing less favorable limitations on those benefits than on medical/surgical coverage.
However, even at the time of rising suicide rate and a deadly opioid and fentanyl crisis that has pushed overdose deaths over 100,000 a year, people who urgently need mental health care and substance use treatment face tremendous obstacles getting access to treatment. The proposed regulations are in response to this ongoing challenge. What’s exciting about such regulations is that you, the public, get a say in drafting them.
Here’s what’s important: Your expertise matters. If you or your loved one has been denied mental health and/or substance abuse treatment by a health insurer, you can post that in your comments. If you have been denied culturally competent treatment, you can give those details. You may know people who suffered or even died due to lack of treatment.
Within the proposed rule there are sections where the government is explicitly asking for feedback. There are also sections where people with lived experiences can fill in any gaps. People have agency here. We need to use our expertise in our lived experience to correct or adjust the words in the proposed regulation.
Getting into the details (because details matter)
You can propose seemingly small but crucial changes to the language in the regulations, because language matters. Even a few words, omitted from a sentence in the law, may make the difference between having access to a specialist or being denied access. One of the most important phrases you may want to suggest, when discussing mental health or substance use treatments, for example, is “including but not limited to.”
Below is a chart of the different sections you can comment on in the proposed regulation, with suggestions for more inclusive and precise language.
| Proposed Regulation | Possible Concerns | Suggestions for Sample Comment | |
| 1. | The proposed regulations specifically identify a number of dfferent types of specialists and illness categories, etc.(i.e 51555, 51559, 51566) | Without more context, a health plan might opt to cover ONLY the explicitly mentioned examples. | Share situations where someone was denied further treatment because they no longer met a rigid diagnosis. Ask the government to create a flexible structure when using examples such as “including but not limited to” or “and other standard of care treatments.” |
| 2. | The proposed regulations introduce new rules requiring health plans to show parity in the adequacy of the network of providers offering care. These include wait time and distance; at least 1 or more provider in certain identified specialties, percentage of in network providers who actually submit claims; percentage of people who use out-of- network providers. | Looking at out-of-network use doesn’t take into account people who are in HMOs and are simply denied the ability to see an out-of-network provider. This doesn’t take into account other clinically recognized treatment modalities or sub-specialties. This doesn’t take into account whether providers are appropriate for their patients’ needs – i.e. being trauma-informed, or LGBTQ sensitive. | Share situations where you were denied an out of network exception/ single case agreement. Explain that certain treatment modalities like EMDR (eye movement desensitization and reprocessing) or DBT (dialectical behavior therapy) are standard of care treatments and should be available.Discuss the clinical importance of therapeutic relationships and challenges if there is only 1 provider. Discuss situations where an in network provider was unable to provide culturally appropriate care. Provide research to support importance of specialized care. |
| 3. | The proposed regulation introduces new requirements so health plans can show parity in prior authorizations. These include how often prior authorizations are required, and how often such requests are denied. | In many circumstances there are frequent approved concurrent authorizations during a standard length of stay. The current language may not take into account the primary issue of excessive (often weekly and time consuming ) reviews in higher levels of care. Additionally, this doesn’t specify if concurrent authorizations are considered prior authorizations for reporting measures. | Describe how many reviews you’ve had during a treatment. Describe whether the health plan ever told your provider that you needed to meet certain goals. Describe how often reviews went peer to peer or needed appeals. Describe how often treatment ended prematurely and give concrete ideas on what guidance health plans should follow. |
| 4. | The proposed regulation lays out new standards and rules for health plans to follow. The government asks for feedback on how to ensure compliance. | Many individuals do not know they can report a complaint to a government agency. Where to report a complaint can be confusing. There is no centralized agency that can investigate complaints. | Discuss times when you felt your health plan was following its own rules. Or you felt there was nowhere to go for help. Make suggestions on how people can learn more about their rights and who to complain to. Make suggestions on how to make the complaint process easier. |
| 5. | Appeals are the main option available to individuals who disagree with a health plan decision. External appeals are decided by an outside panel when a denial is based on a medical opinion. | Sometimes a denial only says a benefit is “excluded” or “not medically necessary” without giving more information. Some health plans stop covering treatment when a person is no longer in immediate danger instead of treating their condition. Health plans often seem to issue blanket denials and ignore the treating doctor’s recommendation. | Recommend that any denial for a mental health or substance abuse condition can go to external appeal. Provide examples of non-responsive denials or when you felt like the health plan ignored your unique situation. Provide examples where a treatment was denied because you were no longer in immediate danger. |
| 6. | The proposed regulation seeks to require that the concept of parity be applied not just to coverage definitions and policies but to the operating procedures a plan actually uses. The plans cannot have internal processes, policies or procedures which are more restrictive. | The government is struggling to find the right definition for “policies,” “procedures” and “processes.” It is hard to track an internal policy if you don’t know it’s happening. | Propose review of automatic vs manual approvals; percentage of denials based on exclusions (which doesn’t allow for external review). Ask the government to review case management notes to see what providers are being told. Provide examples of being transferred between departments or not being able to get documents because you were in a residential treatment facility. |
To make it easier, I am including a list of pages where the government is explicitly asking for feedback:
| Page | Page | Page |
| 51565 | 51576 | 51590 |
| 51566 | 51577 | 51594 |
| 51567 | 51579 | 51598 (Other laws) |
| 51569 | 51580 (Examples) | 51608 |
| 51570 | 51586 | 51609 |
| 51571 | 51587 | 51611 |
| 51575 | 51589 |
How to Submit a Comment
Deadline October 17, 2023, at 11:59PM ET:
Click this link: https://www.regulations.gov/commenton/EBSA-2023-0010-0001
- Make suggestions! Tell the authors of the proposed regulation how to make things better, or whether you think there are loopholes
- You can make unlimited comments, so don’t worry about putting everything in one comment.
- Comment directly into the text box and, if you are able to, upload a word document or supporting documents (i.e. redacted denials, case notes, research, etc.)
- As the government suggests, “if you are commenting on a particular word, phrase or sentence, provide the page number, column, and paragraph citation from the federal register document.”
- Explain the reasoning behind each of your comments.
- Keep a copy of your comments in case you have any trouble submitting them.
Providers, billers, family members or advocates should also share their own experiences or what they’ve witnessed.
That’s it. And thank you for being part of this historic moment.
