Parity Enforcement Coalition Issues Public Comment on Centers for Medicare & Medicaid Services Proposed Rule

WASHINGTON, Dec. 27 -- Shawn Coughlin and Marvin Ventrell, co-chairs of the Parity Enforcement Coalition, have issued a public comment on the Centers for Medicare and Medicaid Services proposed rule entitled "Medicaid Program: Patient Protection and Affordable Care Act; Reducing Provider and Patient Burden by Improving Prior Authorization Processes, etc.". The comment was written on Dec. 21, 2020, and posted on Dec. 23, 2020:

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Thank you for the opportunity to provide comments on the Centers for Medicare and Medicaid Services (CMS) Proposed Rule on Reducing Provider and Patient Burden by Improving Prior Authorization Processes.

The Parity Enforcement Coalition (PEC), formerly the Parity Implementation Coalition, is an alliance of mental health and substance use disorder consumer and provider organizations.

Members include the Depression and Bipolar Support Alliance, Mental Health America, National Association for Behavioral Healthcare, National Alliance on Mental Illness, National Association of Addiction Treatment Providers, and Young People in Recovery. In an effort to end discrimination against individuals and families who seek services for mental health and substance use disorders, many of these organizations have advocated for more than two decades to support the passage of parity legislation, issuance of regulations and enforcement of both. We offer the below comments with a focus on the areas in which our members have a unique perspective.

History

The Mental Health Parity and Addiction Equity Act (MHPAEA) was enacted to ensure "parity" or fairness between mental health and/or substance use disorder (MH/SUD) benefits and medical/surgical benefits covered by a health plan. As enacted in 2008, MHPAEA did not require a plan to offer MH/SUD benefits, but if the plan does so, it must offer the benefits on par with the other medical/surgical benefits it covers. The statute (P.L 110-343) states that plans must ensure that:

"'(i) the financial requirements applicable to such mental health or substance use disorder benefits are no more restrictive than the predominant financial requirements applied to substantially all medical and surgical benefits covered by the plan (or coverage), and there are no separate cost-sharing requirements that are applicable only with respect to mental health or substance use disorder benefits; and

"(ii) the treatment limitations applicable to such mental health or substance use disorder benefits are no more restrictive than the predominant treatment limitations applied to substantially all medical and surgical benefits covered by the plan (or coverage) and there are no separate treatment limitations that are applicable only with respect to mental health or substance use disorder benefits.""

The MHPAEA Final Rule defines non-quantitative treatment limits (NQTLs) as "limits on the scope or duration of treatment that are not expressed numerically (such as medical management techniques like prior authorization)." Plans may not apply NQTLs on MH/SUD benefits more stringently than on medical/surgical benefits.

However, despite the MHPAEA statute and rules clearly requiring plans to manage MH/SUD benefits on par with medical/surgical benefits, our members report that plans continue to impose more onerous NQTLs, including prior authorization requirements, on MH/SUD clinicians and other providers and facilities than on medical/surgical providers. Some of the examples reported to us include:

* Some plans are requiring that only medical directors or physicians conduct SUD medical necessity reviews, while care managers conduct reviews on the medical/surgical side.

* One provider stated that he regularly spends 30 to 50 minutes on the phone with insurers to obtain authorization for psychiatric hospitalization. He added, "When I walk down the hall and ask the staff in the main ER about their experiences for authorizations to treat other people in medical crisis, they invariably say that, at most, they are on the phone for two minutes and only need to provide name, insurance number and reason for hospitalization. They do not get the third degree."

* A provider reported that they have to receive authorization - one day at a time - for each day that a patient receives inpatient SUD treatment.

* Providers report that plans frequently approve prior authorization for inpatient MH/SUD treatment and then rescind the authorization post-service despite the patient meeting the plan's medical necessity criteria. One provider received bills totaling $1.6 and $4.1 million from plans due to retrospective reviews conducted post-service for over 40 patients.

These examples typify the experience of many behavioral health providers and demonstrate the barriers patients face in accessing care.

Key Areas in The Proposed Rule on Prior Authorization

To address these disparities and improve patient access to MH/SUD care, the PEC supports the following provisions in the proposed rule:

* Requiring payers to provide a reason for denial. We concur that providers and patients need to know why the request has been denied so they can address the denial by resubmitting the claim with additional information, appeal the decision or identify alternatives. The reason must relate to the specific claim at hand and not include universal boilerplate language that does not relate to the patient's claim.

Lack of plan transparency and disclosure have consistently been among the top issues PEC members report as barriers to care. Proper disclosure of information is especially important to plan participants and beneficiaries seeking MH/SUD treatment and recovery support services and the providers who help them. This is true whether a patient is trying to understand an adverse benefit determination or challenging what appears to be an unlawful NQTL utilized by a health plan, either as written, as applied or both. Without this information, participants, beneficiaries, and authorized representatives are hard pressed to challenge a denial and fight to obtain the benefits they are entitled to.

* Prohibiting post-service claim denials for items and services approved under prior authorization. In response to CMS' request for comments on prohibiting claim denials following a prior authorization approval, we support prohibiting this practice. Put simply, if a patient meets the plan's medical necessity criteria and the prior authorization request is approved, the payer should be prohibited from subsequently denying the claim.

* Shortening Prior Authorization Timeframes: We support requiring payers to provide prior authorization decisions within 72 hours for urgent requests and 7 calendar days for standard requests.

In response to the request for comments on under what circumstances payers should approve an expedited authorization in less than 72 hours, we propose requiring prior authorization decisions within 24 hours during emergency situations. In emergent substance use and psychiatric emergencies, patients are often unable to maintain stable mental health or substance use conditions while awaiting the health plan's decision, resulting in re-admissions into acute level care. Patients in emergent situations where there is no in-network provider or facility available, should be authorized to receive care from out-of-network providers/facilities at in-network rates.

* Requiring Payers to Post Prior Authorization Metrics: We support requiring payers to publicly report data about their prior authorization process, such as the percent of prior authorization requests approved, denied, and ultimately approved after appeal, and average time between submission and determination.

Again, such transparency is key. As noted in the rule, providing such information may assist consumers with selecting a health plan that best meets their needs and aid providers in determining which plan networks they wish to join.

Thank you for the opportunity to provide comments. We stand ready to support the Centers for Medicare and Medicaid Services in the full enforcement of the Mental Health Parity and Addiction Equity Act. Please feel free to contact our Coalition Coordinator Carol McDaid at cmcdaid@capitoldecisions.com with any questions.

Sincerely,

Shawn Coughlin, Co-Chair, Parity Enforcement Coalition

Marvin Ventrell, Co-Chair, Parity Enforcement Coalition

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The proposed rule can be viewed at: https://www.regulations.gov/document?D=CMS-2020-0157-0007

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