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09/19/2017

Mental Health ERISA Law for Dummies

My son is an ERISA attorney whose present work requires him to make sure that large group insurance plans offered by companies comply with various federal statutes, such as the various regulations surrounding the PPACA (i.e. ObamaCare). In one of our recent discussions about healthcare access, he made me aware of some federal laws regarding the provision of mental health benefits, which I was heretofore completely ignorant. In my practice, I have frequently been frustrated by trying to get mental health care for some of my patients, some of whom appeared to have reasonable health insurance, which turned out to have rather minimal mental health coverage, a condition ERISA nerds refer to as lack of coverage parity between mental health benefits and covered medical and surgical benefits. This is thankfully changing. Without getting into the tedious minutia of ERISA law (and it is very tedious), let me take you on an abbreviated tour of these mental healthcare federal statutes.

Prior to 1996, coverage for mental health care was unambiguously less generous than for physical illness. In 1996, the Mental Health Parity Act (MHPA) passed, which required parity of annual and aggregate lifetime limits compared to med/surg benefits. The Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) expanded parity to include treatment limitations, financial issues such as co-pays, and in- and out-of-network coverage. However, and this was and continues to be a major “however”, neither of these federal statutes mandated any specific mental health coverage but simply required insurers who chose to provide mental health coverage to do so with parity with other medical and surgical benefits. I like to think of this like Title IX established parity between the sexes, MHPA and MHPAEA tried to establish parity for mental health with other medical coverage. If you want to get into the minutia, begin HERE and HERE.

With passage of the PPACA in 2010, both MHPA and MHPAEA suddenly developed some teeth. The PPACA mandated coverage of certain mental health and substance abuse disorders. Now the benefits for those covered services must have parity with other medical and surgical benefits. For a deeper dive, see HERE. But oddly, the sharpness of MHPA’s and MHPAEA’s new teeth varies by state. For technical reasons that only an ERISA attorney may understand, there remain variations in state-by-state interpretations of the coverage minimums of the PPACA 10 ‘required’ Essential Health Benefits (EHB), so see HERE for more details (particularly chart at bottom of linked article listing benefits by state).

Nonetheless, armed with these statutes, mental health advocates are demanding their parity. Recently, the 2nd US Circuit Court of Appeals allowed an ERISA lawsuit to proceed against a large health plan group administrator for their alleged reduction in mental health benefits for services provided to patients. Whether this encourages other legal challenges for more parity, time will tell.

What does foregoing mean from a bioethics standpoint? This blog has frequently discussed the problems of healthcare access for some our most vulnerable members of society, many of these related to mental health struggles. While I am no fan of the PPACA in general, this is one result that I applaud. More work needs to be done to determine exactly what mental health issues get covered and perhaps who gets to decide. Until we all behave like the Good Samaritan toward all of our neighbors, it may take statutes like these to nudge us along the way.

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