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Pursuing Parity: 2018 Year-in-Review

This year, the need for equal access to mental health and addiction treatment reached a boiling point, as the Centers for Disease Control and Prevention released findings that life expectancy has dropped yet again due to rising rates of overdoses and suicides.

While there has been much progress advancing awareness and enforcement of the Federal Parity Law, which requires insurers to cover illnesses of the brain, such as depression or addiction, no more restrictively than illnesses of the body, such as diabetes or cancer, and fighting out nation’s opioid crisis, there have also been many challenges and missed opportunities.

For example, 2018 saw sustained efforts to dismantle The Patient Protection and Affordable Care Act (ACA). The Trump Administration put in place a new final rule to allow the expansion of junk short-term limited-duration insurance (STLDI) plans that are not required to cover mental health and addiction care and can discriminate against people with pre-existing mental health and substance use disorders. That’s why The Kennedy Forum is supporting the efforts of the organizations suing to reverse this final rule, which we believe violates both the letter and spirit of the ACA.

The Substance Use–Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act (SUPPORT Act) passed in 2018, with provisions related to the prevention, treatment, and recovery of opioid use disorder and to curbing the trafficking of opioids and related drugs. Other provisions will help to increase coverage for addiction treatment, bolster the behavioral health workforce, create greater accessibility to addiction treatment and medication-assisted treatment (MAT), and will open doors to treatment through telehealth. Unfortunately, measures that would have incentivized compliance with the Federal Parity Law and given regulators the teeth they need to crack down on insurance companies that are in violation of the law were left on the cutting room floor. Read more here.

Thankfully, parity progress was made in multiple states including Rhode Island, Delaware, Colorado, New York, Connecticut, New Jersey, and Missouri, where parity-centric bills were either passed or advanced. Colorado and New York joined Texas in creating mental health and addiction ombuds offices. Read more here.

Illinois passed the nation’s strongest state parity law to date through SB1707, thanks in part to the leadership of The Kennedy Forum Illinois team. The exemplary law increases transparency and accountability for health plans and state regulators. Read more here. Citing Illinois as a success story of what is possible through partnership and dedication, The Kennedy Forum continues to host State Parity Legislative and Regulatory Workgroup for advocates leading parity efforts across the nation. To bolster these efforts, we have been working with our national partners to update the Model State Parity Bill. This new, more comprehensive version of the model bill will be released in the near future.

The Kennedy Forum Legal Taskforce, which seeks to create positive case law in ERISA, federal, and state Parity and Disability cases nationwide, also saw successes in 2018. For example, a state audit exposed BlueCross BlueShield of Rhode Island’s failure to comply with state and federal mental health parity laws, fining the company $5 million. Blue Cross agreed to put $1 million each year for the next five years toward a fund for helping people with mental health disorders get access to treatment. Read more here. Additionally, the New York State Office of the Attorney General (NYAG) issued a report summarizing the results of an industry-wide initiative to investigate health plans’ compliance with state and federal mental health parity laws. The report included enforcement of eight agreements with seven health plans and, through the work of the NYAG, plans are now imposing fewer barriers to necessary mental health treatment; have reimbursed more than 300 consumers over $2 million for their out-of-pocket costs for previously denied claims; paid a total of $3 million in penalties; and are letting providers prescribe (without preauthorization) MAT for patients with SUD. Read more here.

Several important settlements in federal ERISA lawsuits occurred in 2018, including Des Roches v. California Physicians’ Services wherein Defendants agreed to not resume use of their internal guidelines that were previously improperly used to determine claims for benefits for members of BlueShield health benefit plans; Munnelly v. Fordham Univ. Faculty & Admin. HMO Ins. Plan wherein the Plaintiff successfully argued Empire’s denial of benefits for mental health care at a residential treatment facility was erroneous because it was based solely on Empire’s exclusion of coverage for residential treatment services; and W.P v. Anthem Ins. Co., wherein Anthem agreed to pay $1.625 million to a common fund for the benefits of the class and to stop using guidelines that limited ABA coverage based solely on an individual’s age.

Perhaps one of the biggest legal trends of 2018 was wilderness therapy litigation. To date, results are split, but employers and other health benefit plan sponsors may soon consider changing the terms of their plans to clarify under what circumstances claims for treatment at outdoor behavioral healthcare programs will be covered.

Also in 2018, as part of The Kennedy Forum’s efforts to commemorate the 10th anniversary of the Federal Parity Law, we partnered with The Kennedy-Satcher Center for Mental Health Equity in the Satcher Health Leadership Institute at Morehouse School of Medicine, The Carter Center, and Well Being Trust (WBT) to evaluate state parity statues. The final report graded each state on its definition of mental health; its health insurance coverage of mental health disorders; and its protections for and enforcement of parity. Read more here.

Through the corresponding 2018 ‘Don’t Deny Me’ campaign, we raised critical consumer awareness around the Federal Parity Law, working in partnership with 22 organizations. The campaign continues to generate major media coverage and helped to secured more than 1000 formal complaints against insurers via www.ParityRegistry.org. The goal is to spark a movement that pressures elected officials, insurance commissioners, and attorneys general to enforce parity laws. In the coming year, we will examine the consumer complaints and stories inspired by ‘Don’t Deny Me’ to analyze trends that will help to shape federal legislative and regulatory policy recommendations moving forward.

As 2018 draws to a close, The Kennedy Forum team is confident that the successes of the year – in addition to the setbacks and challenges – will help us to refine strategies, strengthen partnerships, and generate even more visibility around the need for parity.

Each year, more and more people join the cause – some driven by grief for loved ones failed by our broken health care system; some trying to do right by the constituents or communities they serve; and some giving back after demonstrating that recovery from mental health and substance use disorders is possible with treatment. These voices get louder every day. It is our privilege to illuminate and unite them in the ongoing fight for mental health equity.

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“We stand on the doorstep to make momentous progress in advancing the cause of this new civil rights struggle started by the work of President Kennedy over 50 years ago.”
— Patrick J. Kennedy
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