Ask An Attorney: Mental Health and Addiction Treatment Insurance Coverage

Q: Since the COVID-19 pandemic, I have noted an increase in the number of my patients seeking mental health and addiction treatment. However, many do not pursue care because their insurance coverage will not pay for it, including those with employee health plans. Are there options to assist these patients?

A: In late July, the Departments of Health and Human Services, Labor, and the Treasury, announced an expansive new rule to strengthen the federal government’s Mental Health Parity and Addiction Equity Act (“MHPAEA”).[1] The rule, named “Requirements Related to the Mental Health Parity and Addiction Equity Act,” is intended to increase enforcement of MHPAEA by enhancing restrictions on insurers who provide employer group health plans from limiting coverage for addiction and behavioral health treatment.[2] The overarching goal of the “landmark” rule is to improve and “strengthen mental and physical health parity requirements and improve mental health care access for more than 150 million Americans...with private health insurance.”[3] The new measures would allow these individuals increased access to insurance benefits for mental health and addiction treatment.

The MHPAEA was enacted in 2008 to ensure that patients’ access to mental health treatment is equivalent to their ability to receive care for medical conditions.[4] In general, MHPAEA precludes private health insurers from adding requirements or restrictions (e.g., additional copayments or authorizations) that are not required for medical care or surgical procedures, in order to receive behavioral health or addiction treatment benefits.[5] However, since the implementation of MHPAEA, patients seeking insurance coverage for mental health or substance use disorder treatment have continued to face more hurdles compared to when seeking medical treatment.

Under the new rule, insurance carriers will be required to analyze and confirm that they are complying with MHPAEA. This includes mandating that insurers “analyze the outcomes of their coverage to ensure there’s equivalent access to mental health care, including provider networks, prior authorization rates and payment for out-of-network providers” and to then come into compliance with MHPAEA as necessary.[6] In addition, the rule clarifies when carriers are precluded from using methods that limit a patient’s access to mental health care (e.g., copayments, prior authorizations). Finally, the new rule will apply to and require additional insurance carriers to come under MHPAEA compliance.[7]

Along with the release of the proposed “Requirements Related to the Mental Health Parity and Addiction Equity Act” this summer, the Departments of Health and Human Services, Labor, and the Treasury published a “Technical Release”[8] which establishes principles and invites public comment. The period for comment was recently extended to the middle of October 2023.[9] Once the comment period is closed, the agencies will analyze the comments and determine if the proposed rule requires revisions.[10] A “final rule” will then be published in the Federal Register and made available online at http://www.federalregister.gov. Unless there is an exemption, the rule will go into effect no sooner than 30 days after its publication in the Federal Register.[11]

If the proposed “Requirements Related to the Mental Health Parity and Addiction Equity Act” survives the Federal Register’s comment analysis without significant revisions and is published in the coming months, then care providers should be encouraged that their patients will soon have more accessible insurance benefits for their behavior health and addiction treatment needs.

Reprinted with permission from the October/November 2023 issue of The Bulletin from the Monroe County Medical Society and available as a PDF file here.

David H. Fitch is a Partner in Underberg & Kessler LLP’s Health Care, Litigation, and Municipal Law Practice Groups. He can be reached at dfitch@underbergkessler.com or 585.258.2840.