AHLA's Speaking of Health Law
The American Health Law Association (AHLA) is the largest nonprofit, nonpartisan educational organization devoted to legal issues in the health care field with nearly 14,000 members. As part of its educational mission, AHLA's Speaking of Health Law podcasts offer thoughtful analysis and insightful commentary on the legal and policy issues affecting the health care system. AHLA is committed to ensuring equitable access to our educational content. We are continually improving the user experience for everyone and applying the relevant accessibility standards. If you experience accessibility issues, please contact accessibility@americanhealthlaw.org.
AHLA's Speaking of Health Law
Mental Health Parity: The New Legal and Regulatory Landscape
Kevin Malone, Epstein Becker Green, speaks with Dr. Henry Harbin, a leader in the behavioral health space, about the September 2024 final rule implementing amendments to the Mental Health Parity and Addiction Equity Act. They discuss what the new regulations do to advance mental health parity, what this means in the context of managed care and mental health and addiction treatment coverage and payment policy, and what’s next for mental health parity as a tool of behavioral health financing and access reform. From AHLA’s Behavioral Health Practice Group.
AHLA's Health Law Daily Podcast Is Here!
AHLA’s popular Health Law Daily email newsletter is now a daily podcast, exclusively for AHLA Premium members. Get all your health law news from the major media outlets on this new podcast! To subscribe and add this private podcast feed to your podcast app, go to americanhealthlaw.org/dailypodcast.
<silence>
Speaker 2:This episode of A HLA speaking of health law is brought to you by A HLA members and donors like you. For more information, visit American health law.org.
Speaker 3:Hello and welcome , uh, to this A HLA podcast where we're gonna be talking about the Mental Health Parity and Addiction Equity Act. Uh, specifically , uh, we're gonna be talking about the September 23rd, 2024 , uh, final rule , uh, uh, implementing amendments , uh, to the Mental Health Parent Addiction Equity Act , uh, that were made by the Consolidated Appropriations Act of 2021. We'll talk about what they , what the , uh, new regs do, what they mean, put them in the context of managed care and mental health and addiction treatment coverage and payment policy , uh, in the country today. Thank you so much for joining us. My name is Kevin Malone. I am an attorney at Epstein Becker Green in our Washington DC office, and I am very thrilled today to be joined , uh, by Dr. Henry Harbin , uh, who's a psychiatrist with over 40 years of experience in behavioral health. And he's , uh, been a mentor and , um, an advocate , uh, to with me in many parts of my career, and I'm really thrilled to be with him today. Uh, Dr. Harbin was , uh, the CEO of , uh, greenspring and Magellan. He was also , uh, the president of , uh, the, pardon me on the President Bush's new Freedom Commission on Mental Health. He was a co-chair of the National Business Group on Health and their working group , uh, on behavioral health. And he is served in many significant roles with the state of Maryland, as well as many other organizations, including the Bowman Family Foundation. And , uh, Henry , uh, I really appreciate you joining me today. You and I have worked together on mental health parity policy , uh, and accreditation work together, and I think it's gonna be really great for the audience to hear our conversation , uh, about what the , uh, new regulations mean, where things are going in the future with regards to parody as a tool of behavioral health financing and access reform. Um, so really just appreciate you , uh, joining , uh, US today.
Speaker 4:Thank you, Kevin. I appreciate the opportunity to have this discussion with you.
Speaker 3:So I'll , I'll start by just sort of quickly framing for the audience who may not be in the weeds on , uh, parody or on the final rule , uh, sort of what the rules mean, what they are sort of implementing, and how kind of really how parody works. Uh, just sort of cover a little bit of introductory , uh, uh, introductory material before you and I can jump into , uh, some , some of the meat of the meat of the matter. And so, for folks that aren't familiar with the Mental Parent Addiction Equity Act, it's a , it was initially passed in 2008, which was it itself an expansion on , uh, the earlier Mental Health Parody Act from the late nineties. And both of those regimes were , uh, are federal laws that are unique in the sense that they cut across , uh, almost all forms of healthcare insurance in the country other than Medicare. Uh, and that's rare in the sense that for the most part, we divide up our regulation of health insurance and managed care between the sort of payer market in question erisa , self-funded group health plans that are exempt from state insurance law, you know, state insurance contracts that are regulated by state departments of insurance, Medicaid managed care that's regulated by Medicaid agencies with oversight by CMS and many other subtypes of, of plans like non-federal government sponsored plans for, you know, public entities at the state level . Uh, each of those sources of coverage are historically regulated in isolation from each other, but parody is relatively unique in the sense that it cuts across basically all forms of health insurance in the country other than Medicare, and is a consumer protection anti-discrimination law? It does. And in that sense, what it does is all of us who are , uh, in coverage that is subject to parity, we are entitled to protections , uh, from being discriminated against in the design and delivery of our health insurance benefits , um, on the basis of having a mental health or substance use disorder condition. And everything that the insurance company or payer or employer sponsor does in delivering and structuring our mental health and substance use disorder benefits cannot be discriminatory in comparison to how those , uh, functions are done for medical surgical benefits. And so, I , I think it's, it's really important to, to think of parity more along the lines of the way in which anti-discrimination law works like the A DA or, you know, the Civil Rights Act, title vii , which , um, don't necessarily dictate exactly what , uh, regulated entities can and can't do in sort of very clear terms what they prevent . They say, you can, you have broad freedom to do what you want to do as a business or as a , uh, as an entity, but you must make sure that what you do is not discriminatory with regards to a protected class. That same rubric basically applies for parity in the sense that , uh, the mental health law, mental health parod Addiction Equity Act, and its implementing regs outside of a few exceptions, which I think you and I are gonna talk about a little bit with regards to , uh, sort of minimum essential coverage, meaningful benefits , um, outside of meaningful benefits. You have the freedom as a, a sponsor, as an insurer to cover , uh, benefits how you want, however, you just may not do it in a way that's discriminatory. And , uh, that is, you know, there, there are of course, other anti-discrimination laws that apply to health insurance , uh, but nothing quite as detailed or as substantive as parody as we'll talk about. And so, parody has evolved , uh, which we'll talk , I think, Henry , I really look forward to hearing your perspective on the history of the use of parody as a tool in addressing discrimination. But , um, it has evolved and we'll , we're , we'll really talk about how this final rule reflects the sort of efforts over the course of the last decade plus in using parity to drive equity in access and quality to behavioral health services , uh, for patients that need it. Um, and it's really in my mind, I think now , uh, one of the most important mechanisms for managed care regulation in the country , uh, across all payer categories. And it's definitely currently the most important national tool for behavioral health policy that any government regulator has in driving the nature and structure of our behavioral health system. So, with that overview , um, Henry, I , I would really love to hear from your perspective, you know, as somebody who I've really , uh, looked, looked up to as, as a leader of getting these laws passed and Desi advising regulators and employers and payers on their obligations under them. Can you explain really the history of the, of why we are regulating, why we are achieving, we're trying to achieve these outcomes with an anti-discrimination law, and sort of how this parody structure sort of came about from your perspective?
Speaker 4:Sure. Kevin, I, yeah, I , and having been around a long time, <laugh> , I can kind of give a little bit of history about what it was like before and now and really what the purpose of the law was. And as we all know that prior to the parody law, there were about , well , there were a lot of state parody laws. It only affected the state regulated insurance companies, which is a minority of the situations. But , um, but the essence of it was really to equalize access. If, if you have a mental health or substance abuse problem and you're gonna use your insurance, it would it be e as as easy or, or , or affordable , uh, to access that similar to what it would be for a medical disease. So the, the, the statute that Kevin, you mentioned in 2008 basically had like three definitions. They said your financial requirements have to be similar to medical copays and deductibles. Uh , pretty simple. Then they had a term for quantitative treatment limits. Treatment limits means some kind of limit , any other limit on the benefit , like a quantitative one, like there's a 30 day cap on inpatient care in a year or some outpatient cap capitation or limit. Um, and then the, in the regulations, they divided treatment limitations into quantitative and non-quantitative. And the non-quantitative really was any managed care. Any me , uh, limit on the benefit that just has to be done in a comparable and no more stringent way than it is on medical. So really a insurance company, you're right, Kevin has pretty much , they can do whatever they want, if they can show it's similar to and comparable to what they do on medical benefits. So I know one of the biggest concerns in the recent final rule, but it's been there all along, is would these rules stop any managed care activities on the benefit mental health or medical? And some advocates frankly, would like to not have any managed care of the Bay or benefit. That is not my view. I was CEO of two national managed care companies. I think managed care interventions done responsible can help a lot and are important for cost control for quality and other things. And so in this final rule, there were a number of the controversies in the draft rule that was put out a lot of regulated entities and employers and health plans pushed back on a number of the provisions in the final rule because they were concerned that no managed care would be allowed at all on the be benefit. Now, I didn't totally agree with that inter interpretation, but however, given those concerns, the regulators changed a lot of those concerns and changed them in the final rule. And I think that was good. Uh, for the most part, it's try to be clear what, what that you can manage the benefit, but as the original law statutes and everything just says, just don't do it more stringently or in a non-comparable way. So the , um, so I think the history, though, we all know that historically, and it wasn't illegal, there were a lot of them, it's put on mental health and substance abuse benefits by Medicare, Medicaid, commercial insurance department, va, all different types of insurance. So, and there was a , a lot of concern that the mental health treatment system wasn't as objective as what some of the medical sides were. And people felt like, well, you need to cap a cap , you know, put a limit on how many outpatient visits a year have higher copays. So it really did create a, a discrimination so that if you used your mental health benefit, you were gonna have a lot more out-of-pocket costs , meaning you had to pay a lot more, even though you paid the same premiums to get your insurance you did for medical care. You, you were , uh, basically having a higher financial , uh, d burden if you used it for mental health treatment. So the what the, the law in 2008 , uh, you know, that addressed all that is I'd mentioned earlier. And I think that two parts of the law we have pretty good, and I'll be interested in your per perspective on that, Kevin. But from my view, here we are, you know, 2024, the, the issue, the quantitative treatment limits and the financial requirements have a high degree of compliance. In my view, having looked at many of these analyses. And so that, you know, it's unlike, it's rare that you have a copay that's higher for outpatient visits for mental health than medical. Uh, there's no limits on the days , uh, cap , uh, uh, inpatient days in a year other than, unless there's a limit on medical. And I think one of the reasons for that is it's fairly transparent whether or not you are, you, the health plan , um, are in fact complying with the law. You can see very quickly in your benefit limitation, is there a higher copay? Do you have a limit on the limit of days or visits? And so , um, the , in this way, I think the health plans themselves have done a good job of monitoring compliance and correcting it where there's a , um, a problem. Um, yeah , we don't have the same clarity with the non quantiative probable treatment limitations. And that's really where a lot of the litigation, the , you know, the , the, and that was in this final rule, that was the bulk of the guidance, the additional guidance was in those areas. Sorry , but I'll stop there for a minute, Kevin. Ey .
Speaker 3:Yeah, no, I , I, I agree with everything that you've said, Henry . I can just sort of chime in from my, my experience. Um, you know, when I, I worked on the commercial market regulations some when I was at SAMHSA before entering private practice. And , and in my private practice over the last eight years, I've worked with many employers and , uh, commercial issuers, TPAs, Medicaid, MCOs, large and small. Um, and I, I completely agree with you. I think, you know, I, I remember in 2010 and 2011 when I was in HHS, there was definitely in some of the materials that we were reviewing , um, pretty significant examples of, you know, even a few years after, you know, at that point we're talking two or three years after the passage of , um, of Meia , you still had quantitative treatment limits that were hard caps on mental health and substance use disorder benefits and categorical exclusions on coverage for addiction treatment in many commercial plans. But today, in , in my practice, I very , very, you , you effectively never see categorical exclusions of coverage and quantitative treatment limits, like annual caps on visits , um, hour limits or something like that. Those only e exist now because of o like basically errors in like inadvertent inclusion of, of limits that aren't even being applied in practice. They're just sort of in old materials. Um, uh, or what I, I've seen still some of is what's, what I , what we call like crossover benefits, which are benefits that are , uh, medically necessary for both medical surgical conditions and mental health and substance use disorder conditions like occupational therapy , um, that I occasionally will see a , uh, a quantitative cap on like all therapies like pt, ot, and speech therapy. Um, and , uh, we always recommend that those quantitative caps have an exception to any therapies for diagnoses for mental health or substance use disorder conditions. You can still have quantitative caps on medical surgical diagnoses, but not behavioral health. So I do occasionally see that. And on the cost sharing side, I would also agree with you, I think the , um, you know, the, the, the only circumstances where I run into issues with cost sharing compliance have to do with sort of hybrid benefit designs that are trying to be creative in mixing co co-insurance and copays in an insurance benefit on the med search side. And they don't necessarily keep track of the fact that they have to be applying that costing type to two thirds of the projected spending on the ME search side, and they just like miss it by like 5%. And then they end up not being able to apply either copay or co-insurance to behavioral health benefits and didn't notice , uh, because they may have had like 50 different plan designs, and this one sort of hybrid one failed the substantially all tests . But those are like, like we're describing, those are very rare circumstances. And, you know, once people wrap their minds around the fact that like, you basically can't ever use quantitative treatment caps on mental health benefits anymore, they will never pass a substantially all test . And that you just need to build into your annual plan design process doing the quantitative parity testing for all of your cost sharing . Like, it's, it's relatively straightforward, like actuaries know how to do it, insurance regulators know how to check it, like, and the, the only thing that I see potentially complicating this under the new final rule is the inclusion now of neurological con conditions and , uh, developmental disorders as mental health conditions for parity purposes. I don't think , uh, I think we discussed that . It's, it's really unclear what the implications of that are going to be. But I, I will say that I don't know of any, any clients that I'm aware of who have structured their cost sharing quantitative testing on that ba on that definition. They're not, they're not doing projected expenditures according to that , uh, diagnostic criteria. So I think that that is something from the final rules that is gonna be a little bit of a stress related to , uh, the financial requirement testing. But like, as you said, the, the vast majority of my practice, the vast majority of difficulty, and certainly the biggest focus of the regulatory oversight now is around the non quantitative treatment limits, limits and trying to , um, trying to ensure that there is , uh, equity both in treatment, disparate treatment, and in access in outcomes , uh, across all of the NQ TLS that the plan is using. So, yeah, I just , uh, that's a long way of saying I agree with you vigorously, but wanted to share some of my perspective on it. Um, uh, I , I'm interested from your perspective, Henry, what you think are the most important things in the final rule. I mean, I, like I mentioned that the , the , the , these rules implement amendments are made to the law under the Consolidated Appropriations Act, many of which were self-enforcing, and have been actually getting enforced by the Department of Labor, CMS , uh, and state departments of insurance since, you know, 2022. And so a lot of the comparative analysis requirements, the 10 day disclosure obligation, the sort of sanction about being named and shamed in the report to Congress, all that stuff has been in place for a long time. But I, I do think some things in the final rule were interested , were sort of like clarifying things. The, like, the clarification about identifying material differences in the outcomes data and taking reasonable action, documenting those to me, I thought was something that I'd been advising clients to do in their outcomes data for years. But having a clear, a very, very clear pathway to say, you have an obligation of identifying material differences in your out your outcomes data in every NQTL . And if there is a material difference, you have to investigate it and try to do something about it and document that to me. Like I know that that's, it's sort of a whole nother cycle of, of activity you have to do for regulatory compliance, but it's also very clear that it provides you a pathway that if there is a material difference, that's because of a third party . Cause that's not related to your owns discriminatory action, that if you're trying to do something about it and documenting those things, you're not in violation of parity. Like, even if the, the difference remains material. And to me, I think that's like a very reasonable and common sense way to land , uh, on this. Um, so I, I think that's important. Um, and then I think there's , uh, obviously over the last six or seven years, there continues to be a steady increase on network composition and adequacy and access to providers in a timely manner. And I think the final rule and is extremely clear that that remains probably the number one priority of regulators in using parity. And I , I'm interested in your perspective on that. As someone who's done a lot of research around network access and composition, you've run health plans, you know, what's entailed in building a network, you know, what's entailed in negotiating contracts. I , I'm interested in your perspective on that issue in particular.
Speaker 4:Well, I, that's a good, a good , uh, introduction to that whole thing. I , I'd say in general, yeah , I agree that the Department of Labor and CMS have increasingly focused on network access, network standards admissions , um, over time in the last two or three years explicitly focusing on it, these regulations, the new reg final regs, you know, clarified that in more detail. But I would say the emphasis, and I think one , uh, was on, let's look at the, the impact of an an an NQTL medical management technique, right, on access to the network and to care as more important than other things. I mean, so I know a lot of plans have been reviewed , some of these, and the trouble that go , they go through, 'cause Kevin's helped some of them try to do that. It's can be very tedious, lengthy, and sort of non-specific at the end of the day. And I think, I think the regulators are trying to say, well, look, if we're gonna measure, if we're gonna measure some of these things, let's measure what's really most important. Can you get care at a reasonable cost of the same you pay for medical? Um, and that gets to network adequacy, et cetera . So , um, so I do think this was an attempt by the regulators to reduce kind of a lot of paperwork comparisons that , uh, it can't define and get to the more important outcomes. Um, the other general thing that Kevin , I think about these regulations, it's also been building is the focus on quantitative outcomes and relevant outcomes. So again, it's like, well, what is the impact of all of these analyses, right? Is it, you know, and can we measure them in a quantitative way? So the, the states , some of the states, and the feds have focused on this in some ways, but the , the Department of Labor and, and CMS have not issued specific quantitative template audit templates. They've done a little bit of that in the self compliance tool of 2020, but without a lot of detail. And I think what was in this final rule, they stated, we're going to do this on a regular basis, and with the hope that this would add some level of objectivity to this. And again, I go back to the, the thing about the quantitative limits and financial requirements, Kevin, where the plans themselves know they have a problem when they look at that. That's, I think our goal here is that these things will be regulated primarily by the compliance departments of the health plans or employers rather than the regulators externally. And I think part of the answer there is agreeing on some key quantitative comparisons , um, and, and having them regularly measured both internally within the plan, most importantly, but also communicated to the regulators when they're being audited. So I think that those two general things I think are, are positive. I do think a lot of the, I will point out the final rule in part was trying to clarify a number of things that both the advocates were asking for and the plans were asking for. Look, be clear about what is a factor, an evidentiary standard, et cetera , where there's been not as great a clarity in the, the prior rules or the FAQs. And they did answer some of that. I don't, to my opinion, they're not breaking new ground, but they're making it a lot clearer. Like, this is where this fits and this is where that fits. And so I think that's another positive step, even though maybe some people don't like the way they defined it or clarified it, but I think that's a, a step in a positive direction. Yeah . Now , the issue about material differences, I agree with you. I think that was a , an important clarification, and I just give a little history about this. The Department of Labor and CMS have given, I would say, mixed messages about quantitative comparisons and whether there were disparities between mental health and medical. They've gone back and forth on how to, how to, what's the importance of that. And they've made it clear, even in the prior guidance, it's important, but it's there is there , you cannot, if there's a 1% difference between, let's say the reimbursement rate for psychiatrists and pediatricians, right? That's not fair to call that noncompliance solely on a , on a fairly minor, let's say, disparity or difference. Um, so in this, with this material differences, I think they , they, they added good language, in my opinion, be interested in your view, Kevin as well. But where they said , uh, if you have a material difference, then you need to start doing something about it. Whatever, whatever you think is fair, not fair. Um, it did not define quantitatively what a material difference was. It didn't say it's 5% difference, 10% difference, or 15% difference. But it does put, I feel the responsibility on the health plan itself, if they less , they, they have concluded that, let's say their 10% difference between reimbursement rates for mental health people versus medical or out of network , you know , uh, uh, percentages that the regulators may decide it's material and they will be held responsible for not trying to correct it. So it was a little bit of a , I thought , uh, kind of a remedy for prior guidance when it wasn't as clear, what do you do about this? It , it , it still didn't say 5% difference. <laugh> noncompliance, it still relies on your analysis and putting together this, the , the , the way in which you constructed a medical management pro , uh, intervention. But it does put a little bit more onus to start taking action. And I would say, Kevin, on about your experience, that a a lot of times plans would say, well, I had a 30% difference in out of network on mental health and medical. And because you have stated that alone doesn't mean I'm noncompliant. I'm not gonna even address it or say anything about it or do anything about it . So I think this made it clear you should at least start doing something about it as well as analyzing it. And I think that's, that's a positive step. Um, at least Go ahead, Kevin.
Speaker 3:Oh , I , I , I do think that it, it will be helpful further to get the subsequent guidance that they've said that they're going to issue about specific measures, right? Um, that, you know, I think you and I have participated in a , in a conference that, that , that we did at , at URAC for , uh, regulators, advocates, plans, researchers , uh, to talk about , um, you know, relevant data measures we used at the time, the , the phrase operations measures. 'cause that's used in the, in operation comparability and stringency analysis, but whatever the term you use , we're talking about the same thing. We're talking outcomes data and a a , as you mentioned, the , the departments have, have issued examples of the kinds of data they consider to be measures, right ? Uh, but even in the self compliance tool, there's not really technical specifications on what those measures are. Certainly, it's nothing compared to what you see with like star's measures and Medicare Advantage, where it's like, it's scientific, you know exactly how to calculate it. You still have fights on the margins, but everybody in the industry knows how to run those measures. They know exactly the technical specifications, they know the cut points. It's a , it's a scientific process. We're not there for operations measures. And even with the technical release, right , that the tri agencies issued in concurrently with the proposed rule, that didn't include technical specifications either. I think what you guys have done , um, with the , um, sort of uniform data collection tool that you guys have put out, I think in , in some ways is one of the, the most , uh, has the most technical specifications of almost any measure set that's been released. But I think , uh, a lot of people , uh, have some people think that can also be reformed. But I think that for me, I , I , I, we have included in some of our comments to the tri agencies that they need to develop a process analogous to what , uh, CMS does with stars measures. Where there's a, there's a sophisticated group of data experts who refine the technical specifications on measures every year. They're doing it all the time, they're always assessing it, and they're reforming it. They're providing notice and comment, they're interacting with the industry, refining the measures, but still controlling them to ensure integrity. Uh, to me, this absolutely warrants that same level of investment. Um , and I , I think I , I totally agree with you that the regs are clear that some measures need to be used, right ? But now it's the , the onus is still on the plan to come up with those measures anew every time and sort of roll the dice of whether a regulator is gonna find those measures good. And each state market is coming up with their own, like, you know, state insurance regulator or market conduct examining firm. They're like inventing new measures all the time with different technical specifications. And it is, I I I will say it is chaos right now, right ? With regards to the different measures that plans are having to calculate. And my perspective just as like a , an interested stakeholder in parity being a useful exercise in advancing actual equitable equity and quality, right ? I , I think the current landscape is like counterproductive, but I think it's heading in the, it's heading in a , a better direction. And I think we we're all eager to see what happens from the tri agencies with regards to following up on the technical release , um, and issuing specific metrics. Um, you know, I think I , I'm interested in your perspective, Henry, about the, the balance between the in writing phase of the analysis, right ? And the, and the , uh, relevant data phase of the analysis, right ? Right. When I, I I, when I teach people about this, I, I , I use the analogy of disparate treatment versus disparate impact, right ? Discrimination theory, right ? Where the in writing phase is, is proving that your process is not disparate treatment, you're not doing something discriminatory in design. And the relevant data analysis of the operation side is disparate impact. You're looking to see is there a disparate impact of it, even if you're not being discriminatory in design, right ? You know, I think like in the final rule , some of the distinctions that they now draw between process factors and strategy factors, right ? Is a little confusing <laugh> , um, like, because it may make some sense in prior, prior authorization , um, but it makes less sense in medical necessity criteria, and it makes less sense in coding edits and in like network reimbursement methodologies or, or, you know, things of that nature. And so the trying to have the same rubric process strategy factor source, evidentiary standard, they use the exact same rubric for every NQTL type. I I do think I , I have a difficult time explaining it to people in , um, in the network administration parts of managed care companies, but I, I do agree . I think that it's, it , it is, it is in some ways clearer than it was before the final rule. But , uh, I'm interested in your take from a policy perspective. I personally, as you know, think that we could switch it around, right ? If we have, once we have really good data, once we have good measures that are uniformly applied, I, I think there's potentially a world in the future where we rely entirely on the measures and we only do the factor source and evidentiary standard analysis when there is a meaningful difference, right? That part of your, like part of your, your significant difference , uh, and your , your material difference and reasonable action process, right ? Is doing the , the, the disparate treatment, the factor source and evidentiary standard analysis specific to an NQTL that has the material difference, rather than just having those process strategy, factor analysis being done all the time. Uh, I don't know what your perspective is on that.
Speaker 4:Well, I think that's a good distinction, Kevin. I , first of all , I say that part of the problem here is that the age the federal agencies weren't clear if they had the authority to issue, you know, pre-developed quantitative templates, right? So this final rule gave them, if there was ambiguity, it gave them the authority to do so outside of a reg a formal regulation, which I think was really important because these , uh, data measures need to be updated on a regular basis, either because of input about ambiguity or interpretation or we get more data. So I think this was a big first step, but we have to see <laugh> one, what are the, some of the measures. So the , um, so, and I , you're right. I mean, I work with, as you know, this foundation called the Bowman Family Foundation. I'm an advisor to them, as are several of the people I work with. And they , they have been doing research now for eight years with large data claims analyses, Milliman , RTI, to try to validate what's a , what's a reasonable comparison, a reimbursement out of network , uh, uh, UR frequency denial rates , um, and it , and then we publish them every year. And so that people can say we agree or disagree, et cetera. I would hope that the, the technical release from the CMS will include some of those measures unless they find something better, right? I mean , if they have something, they're not gonna be perfect though, you know, it is how you interpret the outcomes. We , we could get clarity on is it a valid way to measure the outcomes, and then you could argue about the meaning of it, right? Which that itself would be progress. Agree . I do think I'm with you, Kevin, that this would hopefully reduce, it may not abolish these nauseatingly <laugh> detail comparisons of factors, evidentiary standards, et cetera . Um, even though as the 2023 report to Congress when they re released last year, which summarized the non-compliance actions, enforcement actions taken for 2021 and 22 showed a lot of non-compliance with just the basic definitions of factors and evidentiary standards, you know, the regulations, including what's in the CAA of 2021 makes it pretty clear you should define these things and so on. So, and a lot of non-compliance or deficient reports are that they don't even do that. Right? So, but I do think even Kevin , not any of my clients, what's that? None of my clients . That's right . <laugh> . Um, the , uh, well, they, you know , DOL was pretty clear. They said just about every plan they've looked at had problems in that area. But yeah , but the , I do think the quantitative data, just having them will reduce a lot of this , uh, that type of analysis, Kevin, just even if there's not a regulation on it, because if you sort of said, you know, I looked at my network access and here in these three areas, and they're pretty similar close for mental health and medical, and there are little areas that , for instance, that we see disparities, but we're working on it, and here's what we're doing with some specificity. The need for a further, you know, analysis of different factors and so on becomes less important. So you focus on really well, are we making sure we got a good outcome here, a good outcome in terms of comparable access, or whatever the issue is. So , um, but I do think it's gonna be very important. I think , um, I would love to see more investment by both at the , uh, NIH level, NIMH , samhsa, HHS, and CMS also on creating some of these measures. I mean, because they're at the heart of, we know that, you know, the two big quality regulators, right ? This right. Um, URAC and NCQA who are looking at network access for health plans, they don't have a lot of hard and fast measures. They have a few. And I think I , I don't know if your view on this, Kevin, I think most health plans would be glad to say if they were monitoring some of these very detailed quantitative measures of access between medical and behavioral, right? And neither one of them, except for an exceptional urac , which we ought to talk about, you know, when their health plan accreditation plan, they don't promise or they don't offer, they're not trying to, to create parody, but they do have some standards. So there, I think if we could develop some that could be used by them, then at least some of the third party regulators, if you think about most health plans, they delegate a lot of the credentialing and accreditation standards to third party nonprofit quality agency . So, you know , I'm a board certified psychiatrist. The health plans don't try to step in and try to board of certification for psychiatry neurologists. They defer to that entity, that nonprofit entity. So I think there's more interest that would, that would help a lot of people, the regulators health plans, particularly if it was somewhat transparent about whether you're meeting their accreditation standards or not. Um, I know that you've worked , you and I have both worked together on URAC as the only entity nonprofit quality assurance entity that has actually promulgated parity standards. Yep . Fortunately , only a few plans have gone through that, but I hope that will expand. Yeah . And I know we participate in a joint exercise with lots of plans, lots of advocates about trying to focus more on these quantitative measures. And so , um, I totally agree with you. I think that will, it won't re remove the ambiguity, but it's gonna reduce it a lot.
Speaker 3:Yep . No, I , I agree and thank you for mentioning the URAC project. It's something we've worked on together for, for years, trying to like pr pro produce tools that can allow , um, regulators , uh, the public employers , uh, and plans to , um, comply with the expectations of parity and, and do it in a way that everyone feels consistent, is sort of consistent across markets and, and tries to raise the, raise the standards in a way that is , uh, feasible. Because , you know, from , I'm, I'm, I'm somewhat biased in the sense that I work with payers all the time trying to comply, but I , I work with very, very motivated compliance and legal departments and operations folks who really, really want to comply. They're really, really motivated. And , um, uh, my perspective is that these are very, these very serious compliance professionals, and if they can, if they really know how to do it, they will. Um, and I'm, I'm, that's why I keep trying to do it. <laugh>. Uh , so, you know, I know we're, we're, we're running outta time, but I wanna , I , I sort of wanna end on a few sort of things about the future, and I sort of, you know, I , I'm continuing to work with, with payers in building compliance programs and working with URAC on the accreditation program. But interested to hear from you, Henry, on what you've got going on and what , uh, what what you think is gonna be happening next. We obviously talked about the, what the tri agencies are, are purportedly still working on , uh, related to relevant data. Uh, but interested in from what you guys , what you've got cooking , I always am interested in all the many projects you have , uh, going on. Well, I've,
Speaker 4:I've spent a lot of time not just working on parody, that's more in the last, you know , few years particularly, but I've always tried to also tried to work on the solutions. And so part of the solutions are better and newer, better treatments for mental health, substance use problems. We, we do have a provider problem here and that, or a science problem, and that a lot of the treatments in those are old, meaning they've been out for 10, 20 years. And so , um, I, I've worked on trying to, you know, help support new technologies. Another thing is, and this is a , this is a provider problem in my opinion, primarily, is there are outcomes that clinical provider outcomes measures that are not used consistently by either medical, that are health me be health providers, psychiatrists, psychologists , uh, measure based care, quantifiable outcomes tools like the PHQ nine and GAD seven. So one study showed less than 15% of providers use those tools. That is not true on the medical side. And there's almost no medical disease, diabetes, or you can imagine going, getting, treating for hypertension. And they don't measure your blood pressure. You'd be sued or fired if you didn't. But that's the norm, whether it's a psychiatrist, psychologist, or , so this is a, what I would say, this is not a payer problem, this is a provider problem , a leadership problem. So , um, so I've spent a lot of time trying to make that a standard for the field. We've made some progress there, but we have a ways to go. Um, also looking at treatment models that like collaborative care, integrated care with primary care. That is something that would make a huge improvement in quality of access because primary care doctors, medical doctors prescribe 70 to 80% of all the psychiatric medications. They don't have much help doing it. A lot of times they don't do it well. And there's a fairly simple method method , me method intervention called psychiatric collaborative care, where gives some help to primary care doctors and other medical doctors in doing their job and gives them more mental health resources. The outcomes are massively good, 90 randomized trials. And so I and others have spent a lot of time trying to promulgate that tech new, that evidence-based, not new , it's 30 years old, but it's been, you know, improved , uh, to use in the medical system, which would've add a lot of, a lot of enhanced care. So , um, you and I both have worked on, you know, digital behavioral solutions that can add a lot of help, tele behavioral health, these are all things that increase access. Um, uh, we re we recognize there is a shortage of mental health professionals in part because of demand over the last several years. Um, and, and too many of them are outta network , but we need to make sure we're using those special professionals efficiently. And, and well, and this collaborative care model in primary care is a way good data shows you don't have to use as many separate behavioral professionals. If you help primary care docs do a better job, which they generally like it, they have some help in this area. So those are some of the things that I've been working on, Kevin, that, that relate , um, to that , you know, it's the solution side of having a parody , um, parody disparities. How about that?
Speaker 3:Yeah , that's great. Well, Henry, I really appreciate you sharing that. And you know, really I just wanna , um, recognize , uh, uh, publicly just how tremendous your contributions are to the benefit of the country and for patients' mental health conditions, your , uh, uh, and inspiration and, and the way you're contributing your time and energy and all these issues. And I really appreciate it. Thank you . And so I wanna thank the audience for joining us today, and I hope you found the, the conversation interesting. And , uh, thank you for being a member of the HLA.
Speaker 2:Thank you for listening. If you enjoyed this episode, be sure to subscribe to a HLA speaking of health law wherever you get your podcasts. To learn more about a HLA and the educational resources available to the health law community, visit American health law.org.