In August 2023, the Biden administration proposed new rules to strengthen enforcement of a 2008 law that requires insurers to cover mental health services at the same level as physical health care. Under the proposal, a health plan could only use treatment limits like prior authorization on a mental health or substance use service if it also uses the limits on two-thirds or more of its medical benefits in the same class. The rule would also require the plans to collect and evaluate data on the impact of their treatment limits on mental health benefits. Advocates strongly supported the rule in comments submitted to the government, but insurers and some employers were highly critical of the proposals.
More on Rules and Comments
The administration has accused insurers of failing to comply with parity regulations, pointing to a 2022 report to Congress from HHS and other agencies that found not one of the 156 insurance plans and issuers studied followed rules requiring them to measure their compliance. In response to the rule, over 9,000 comments were submitted by the October 17 deadline.
The proposed rules are “so burdensome that many of our members will have no other choice but to re-think the type and level of their plans’ coverage” of mental health benefits, wrote the ERISA Industry Committee, which advocates for employers on health benefits issues. AHIP said officials should withdraw the entire proposal and restart the process to address what it says are significant legal and operational flaws in the plan. Insurers also defended the use of strategies like prior authorization to ensure that patients receive appropriate medical care. “If this approach is restricted, patients will pay more for treatment that varies widely in quality,” wrote the Blue Cross Blue Shield Association. The groups, to varying degrees, took issue with proposed requirements for plans to analyze the impact of practices intended to limit unnecessary care.
However, advocates like the Mental Health Liaison Group, strongly supported the rule. URAC, an organization offering the nation’s only mental health parity accreditation, generally supported the rules, and promoted an accreditation safe harbor as a means for plans to demonstrate compliance. Additionally, organizations like the American Hospital Association and the American Medical Association were enthusiastic about the rules.
Rep. Virginia Foxx (R-N.C.), chair of the House Education and the Workforce Committee, said the administration is going beyond its authority. “The … proposed rules will serve only to weaken parity compliance by giving prominence to bureaucratic reporting, paperwork, and audits,” Foxx wrote. The panel’s top Democrat, Bobby Scott of Virginia, and health subcommittee ranking member Mark DeSaulnier (D-Calif.) backed the proposal in a letter but said the administration should go further in limiting exceptions.