Final Parity Rule Fails to Address Psychiatrist Reimbursement Problems

A new federal regulation on mental health parity may allow insurance companies flush with new members from the ACA marketplace to tighten the screws on psychiatrist reimbursement.

The final rule issued by the Department of Health and Human Services (HHS) last November implements the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). It ostensibly requires equal payment for providers who treat either mental or physical health issues. But the language of the final rule nonetheless appears to give insurers plenty of leeway to continue-or even expand-the kind of anti-psychiatrist policies at the core of 2 lawsuits filed last year.

One lawsuit in Connecticut has been brought by the American Psychiatric Association, Connecticut Psychiatric Society, and the Connecticut Council for Child and Adolescent Psychiatry. It alleges that Anthem Blue Cross/Blue Shield was using the CPT code changes as a platform to limit and distort services provided by psychiatrists, to reduce the fees paid to psychiatrists, to impose a greater burden and expense on patients receiving psychiatric treatment than they impose on patients seeking non-psychiatric medical services, and to further hinder access to medically necessary psychiatric care.

The plaintiffs are wrestling with Anthem Blue Cross/Blue Shield over pre-trial issues. The first hearing by a judge may take place in March. The two psychiatrists at the heart of the Connecticut case are Susan Savulak, MD, and Theodore Zanker, MD. Both declined to be interviewed because of the pending litigation. They and the professional associations filed the lawsuit before the HHS publication of the final rule in November implementing the 2008 law, which had been in effect, but whose terms were guided by an interim final rule. Both Savulak and Zanker declined comment. Sarah Yeager, Director PR, Anthem Blue Cross/Blue Shield, did not reply to e-mails requesting comment.

The final rule on the MHPAEA was published on November 14, 2013. It goes into effect for plan years starting after July 1, 2014. Insurance plans sold under Medicare, the ACA, and ERISA (ie, most employer plans) are covered. The final rule made some important clarifications of the interim final rule, including confirming that insurance industry decisions regarding patient care must be transparent and that residential treatment for mental health and substance use disorders must be provided on par with that offered for non–mental health conditions, according to Colleen Coyle, JD, General Counsel, APA.

But the rule doesn’t address specific issues that have come up in Connecticut and elsewhere. For example, the APA’s Coyle notes that some insurance companies might pay primary care physicians $90 when they see a patient for blood pressure management and bill CPT code 99211, a traditional office visit code. When they bill 99211 for a depression visit, the insurance company may reimburse the primary care doctor $60 because it is a mental health diagnosis. A psychiatrist may be reimbursed $50, despite the fact that the office visit is typically longer than for the primary care physician.

The final rule notes that the federal departments involved in writing the rule-HHS, Treasury and Labor-“are aware that some commenters have asked how the NQTL requirements apply to provider reimbursement rates.” NQTL stands for “non-quantitative treatment limitations.” The final goes on to say that plans and issuers may consider a wide array of factors in determining provider reimbursement rates for both medical/surgical services and mental health and substance use disorder services but adds what could be a major loophole: “Disparate results alone do not mean that the NQTLs in use fail to comply with these requirements. The Departments may provide additional guidance if questions persist with respect to provider reimbursement rates.”

Julie A. Clements, JD, MPP, Deputy Director, Regulatory Affairs, the APA, noted the Wellstone-Domenici final rule does contain some improvements from the interim final rule. It makes clear that intermediate care services on the mental health side must be treated the same way residential treatment services, such as rehabilitation for injuries, are treated on the medical side. In addition, the final rule requires insurance companies to cite a recognized standard of care when they deny service on the basis of lack of medical necessity and to explain how that standard applies to the particular patient. The final rule says the insurer has to produce “. . . documents with information on medical necessity criteria . . . as well as the processes, strategies, evidentiary standards, and other factors.”