Insurers can restrict mental health care. What laws protect patients in your state?
Accessing mental health care can be a harrowing ordeal. Even if a patient finds a therapist in their network, their insurance company can overrule that therapist and decide the prescribed treatment isn't medically necessary.
This kind of interference is driving mental health professionals to flee networks, which makes treatment hard to find and puts patients in harm's way.
ProPublica sought to understand what legal protections patients have against insurers impeding their mental health care.
This story comes from ProPublica, a nonprofit newsroom that investigates abuses of power. Sign up to receive their biggest stories as soon as they're published.
Most Americans — more than 164 million of them — have insurance plans through employers. These are generally regulated by federal law.
Although the law requires insurers to offer the same access to mental health care as to physical care, it doesn't require them to rely on evidence-based guidelines or those endorsed by professional societies in determining medical necessity. Instead, when deciding what to pay for, the government allows insurers to set their own standards.
"If insurers are allowed to home bake their own medical necessity standards, you can pretty much bet that they're going to be infected by financial conflicts of interest," said
Federal lawmakers who want to boost patient protections could look to their counterparts in states who are pioneering stronger laws.
Although these state laws govern only plans under state jurisdiction, such as individual or small-group policies purchased through state marketplaces, experts told ProPublica they could, when enforced, serve as a model for broader legislation.
"States are laboratories for innovation," said
ProPublica reporters delved into the laws in all 50 states to determine how some are trying to chart new paths to secure mental health care access.
Many of the new protections are only just starting to be enforced, but ProPublica found that a few states have begun punishing companies for violations and forcing them into compliance.
Who defines what mental health care is necessary?
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Insurers generally face few limitations on how they define what kind of mental health care is medically necessary. They often create their own internal standards instead of relying on ones developed by nonprofit professional medical societies. These standards can then be used to challenge diagnoses or treatment plans.
"Knowing the profit motive that insurers have, it's really shocking that federal law doesn't define medical necessity and require the use of nonprofit guidelines to make decisions," said Bendat, who helped
Last October,
A spokesperson for the state's
Nine states, including
Amid the opioid crisis, which has killed more than a million Americans, states have also instituted medical necessity protections for substance use treatment. For example, in
How can insurers challenge mental health treatment?
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Before 2008, insurance companies nationwide could put more stringent limits on how often patients got mental health care compared with medical care, instituting more restrictive caps on the number of therapy sessions per year or the length of a stay at an inpatient facility.
The federal Mental Health Parity and Addiction Equity Act banned those harder limits. So insurers shifted to a different way to deny care. "They're not going to just cover unlimited care, so they have to do something to limit utilization," said
Insurers say they conduct what they call utilization reviews, in which they can request and sift through therapy progress notes full of sensitive details, to assess whether providers are delivering appropriate care. However, providers, mental health care advocates and legislators have found that these reviews are often used as pretexts by insurers looking for a reason to dispute the necessity of treatment.
In recent years, at least 24 states have passed legislation to try to regulate how insurers conduct reviews of behavioral health care.
After the
The
Last year,
Several states, such as
Insurers usually select the clinician conducting reviews, but in
Some states have also limited the frequency of reviews. In
What must insurers reveal about mental health care access?
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It can be hard to enforce the laws requiring equitable coverage for mental and physical conditions; doing so entails comparing very different kinds of health care and successfully arguing there is an imbalance in access. State and federal regulators also have minimal resources for such intensive examinations, which has hindered their ability to scrutinize insurers.
To hold insurers accountable, at least 31 states and the
Most of these states ask insurers to provide details on their treatment criteria or limitations, but some states appear to be violating their own laws by not posting information publicly.
After ProPublica asked about the lack of transparency, spokesperson
For compliance reports, states often request data and analyses from insurers, but the figures that insurers submit may not be detailed or even accurate.
"I've reviewed a lot of these analyses," said Clement, who has helped advocate for greater insurer transparency in multiple states, "and in most states, they're pretty bad."
But in some states, like
Its reports also found that mental health providers were paid substantially less than medical providers for office visits of equivalent length. For an hourlong office visit, a mental health provider was, on average, reimbursed about half the amount given to a medical or surgical clinician. A spokesperson for the state's
"There's no way we can feel confident that anyone is following the law unless we make sure there is accountability and they have to prove that they're accountable," Clement said.
Other states, like
People can file complaints with their state insurance departments if they believe that an insurer is violating their rights.
This story comes from ProPublica, a nonprofit newsroom that investigates abuses of power.
Share your story: If you have submitted a complaint to a state insurance department that you would like to share with ProPublica reporters, reach out at [email protected].
ProPublica reviewed laws and regulations in all 50 states and the
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